1

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 168362 January 25, 2007

LADISLAO SALMA and MARILOU SALMA, Petitioners,

vs.
THE HON. PRIMO C. MIRO, DEPUTY OMBUDSMAN (VISAYAS), BRGY. CAPT. ROLANDO
MARTINEZ, and BARANGAY TANODS namely; CRISENTE ZERNA, BALTAZAR CUMCOM,
MONTAÑO TORRES, ELDIN MIRAFLOR, NOEL TORRES, FRANCISCO CASTRO, BENITO
BAROT, RAFAEL RODRIGUEZ, KASAMA BUENAVENTURA, WILLIAM DAYAO, RICO
PIÑERO, JOSEPHINE CORNELIO and GINA SALMA, Respondents.

DECISION

CHICO-NAZARIO, J.:

This is a Petition for Certiorari under Rule 65 of the Revised Rules of Court seeking to reverse
and set aside, for having been rendered with grave abuse of discretion, the Review on Joint
Resolution1 dated 15 October 2004 and the Order2 dated 29 March 2005, issued by Graft
Investigation and Prosecution Officer II, Allan Francisco S. Garciano, and approved by Deputy
Ombudsman Primo C. Miro, dismissing the cases against Brgy. Capt. Rolando Martinez
(Martinez), et al.

The factual and procedural antecedents of this instant petition are as follows:

On 15 July 2003, Gina Salma (Gina) went to the residence of Martinez to report the harassment
committed by her brother-in-law Ladislao Salma (Ladislao). Ladislao, the brother of Gina’s late
husband, was claiming an exclusive right over a property located at Brgy. 3, Tanjay, Negros
Occidental, wherein the house and the hollow blocks making business of Gina were situated.3

The aforesaid property was commonly owned by the Salmas although in the possession of Gina
and her late husband. After her husband’s demise, Ladislao was very adamant in regaining the
possession of the entire property insisting that Gina had no more right to remain therein.

At the time Gina brought to the attention of Martinez the alleged harassment, Ladislao was
fencing the perimeter of the subject property thereby blocking access to the river, which was
indispensable in hollow blocks making, thereby causing tremendous loss to Gina’s business.
Aside from physically blocking the vital thoroughfare, Ladislao, in one instance, allegedly
threatened the laborers and prevented them from entering the premises to perform their duties,
thus, completely paralyzing Gina’s business.

Upon hearing the complaint, Martinez advised Gina to go home and wait for the summons for
he intended to call Ladislao to a conference in order to settle the brewing dispute amicably, if
possible.4
2

In the early morning of the following day, Martinez was awakened by Gina’s report that she was
once again harassed by Ladislao that same morning by shouting at the gate of her house and
demanding her to vacate the disputed property.

Gina related that at around 6 a.m. of that day, Ladislao went back in the same violent mood and
in fierce and aggressive manner demanded her to leave her house. At that moment, Ladislao,
who was in the fit of anger, was determined to use any means possible just to drive Gina off
from the disputed property. At the outset, Ladislao allegedly used verbal threats against Gina by
yelling and intimidating her to leave. Not contented, Ladislao even employed effective material
control over the subject property by tying with a wire the gate adjoining the fence he himself built
a few days ago around the lot, forcing Gina to take another route just to get out from the
premises.

While Ladislao was absorbed by his temper at the front of her house, Gina lost no time in
reporting to Martinez what was happening. Accompanied by her sister, Josephine Cornelio,
Gina went back to the Martinez’s residence and narrated to him the entire incident.5

Sensing the urgency of the situation, Martinez agreed to go with Gina to her house, and so he
convened his Barangay Tanods, namely: Crisente Zerna, Baltazar Concom, Montaño Torres,
Eldin Miraflor, Noel Torres, Francisco Castro, Benito Barot, and Rafael Rodgriguez, then
proceeded to the location where the alleged harassment took place to verify the report and
mediate between the disputing parties.6

Upon their arrival at the vicinity, the gate adjoining the fence surrounding the entire lot was
already tied with a wire but Ladislao was nowhere to be found. Wanting to promptly settle the
matter, Martinez requested Alejandro Salma, another brother of Ladislao, who was then
present, to summon and inform Ladislao of their presence in the area. Shortly, Ladislao, who
was still in an infuriated mood, appeared.

To ease the growing tension, Martinez politely greeted Ladislao, "mayong buntag Lad" (good
morning Lad), and in a diplomatic manner asked, "di-a mi arong pag klaro aning report sa
imong bayaw nga si Gina nga imo kunong gi-alaran ang alagi-an nila ug sa iyang mga kustomer
diin naapektuhan iyang negosyo, ug imo pa kuno gihulga ang iyang trabahante, ug unya imo
gyud syang gisulong karon lang, unsa man ni katinu-od?" (we are here to verify the truth on
Gina’s complaint that you allegedly fenced her house which blocked her and her customer’s
passage and, on one instance, mauled her laborer which affected her business, and then again
harassed her at her residence this morning). Instead of justifying his actions, Ladislao explicitly
admitted the allegations and even retorted, "ngano man diay sulongon nako si Gina? Wala moy
labot kay walay makabo-ot sa akong gustong buhaton! Wala moy labot Noy, kay ako ning
property," (What if I will harass Gina? What if I will fence my property? This is mine and I will
certainly do whatever pleases me and its none of your business anymore). These arrogant
utterances were allegedly made by Ladislao while pointing his finger at the the Barangay
Captain and pushing him away.7

The contemptuous behavior displayed by Ladislao prompted Martinez to arrest him for direct
assault committed against his authority as a Barangay Captain who was on the occasion of
performing his official duties. He then requested Ladislao to go with them at the police station
but the latter swiftly moved to elude arrest and quickly ran away from Martinez and the tanods.
Overpowered by the strength and number of the tanods, Ladislao was finally cornered, after
which, he was handcuffed and brought to the police station to answer the charges against him.8
3

In the process of effecting his arrest, Ladislao and his wife Marilou Salma, who tried to help him
evade the barangay authorities, suffered slight physical injuries as evidenced by medical
reports.9 Spouses Ladislao and Marilou Salma later cried they were victims of "manhandling"
and "police brutality" alleging that the force employed by Martinez and the Barangay Tanods
was considerably excessive and uncalled for by the circumstances.10

Consequently, Ladislao was charged with the crimes of Direct Assault, Resistance to a Person
in Authority or his Agents, and Coercion docketed as I.S. No. 03-152 entitled, "Chief of Police v.
Ladislao Salma."11

On the other hand, spouses Ladislao and Marilou Salma filed six counter charges against
Martinez and the Barangay Tanods namely Crisente Zerna, Baltazar Concom, Montaño Torres,
Eldin Miraflor, Noel Torres, Francisco Castro, Benito Barot, and Rafael Rodriguez, before the
City Prosecution Office of Tanjay City and docketed as follows: I.S. No. 03-156, For: Slight
Physical Injuries, "Marilou Salma v. Crisente Zerna," I.S. No. 03-157, For: Grave Threats,
"Ladislao Salma v. Crisente Zerna and Baltazar Concom," I.S. No. 03-158, For: Slander by
Deed, "Ladislao Salma v. Brgy. Capt. Rolando Martinez and Crisente Zerna et al.," I.S. No. 03-
159, For: Grave Coercion, "Ladislao Salma v. Brgy. Capt. Rolando Martinez and Crisente Zerna
et al.," I.S. No. 03-160, For: Arbitrary Detention, "Ladislao Salma v. Brgy. Capt. Rolando
Martinez and Crisente Zerna et al.", and I.S. No. 03-161, For: Unlawful Arrest, "Ladislao Salma
v. Brgy. Capt. Rolando Martinez and Crisente Zerna, et al."12

On 12 July 2004, the City Prosecutor of Tanjay City issued a Joint Resolution13 dismissing the
charges filed by the spouses Salma against the barangay officials, for want of sufficient
evidence to establish a probable cause that the offenses charged were indeed committed. The
dispositive portion of the Resolution reads:

"ACCORDINGLY, and for reasons already cited, I.S. Nos. 03-156, 03-157, 03-158, 03-159, 03-
160, 03-161 and 03-162 are hereby ordered dismiss (sic)."14

However, the criminal complaint against Ladislao was ordered filed, it having been established
that respondent Ladislao committed the acts as charged and is probably guilty thereof.15 The
dispositive portion of the Joint Resolution reads:

"ACCORDINGLY, let two separate informations for the offense defined in Article 148 and Article
286 of the Revised Penal Code against Ladislao Maglucot Salma be filed before the proper
court."16

Aggrieved, the spouses Salma elevated the matter to the Office of the Regional State
Prosecutor of the Department of Justice, through an Appeal and/or Petition for Review17 they
filed on 5 August 2004, seeking the reversal of the Resolution dated 12 July 2004 issued by the
City Prosecutor on the ground of grave abuse of discretion.

Since the respondents in the criminal complaints instituted by the spouses Salma are public
officials, who allegedly committed the offenses charged while in performance of their official
duties, the Regional State Prosecutor indorsed the resolution of I.S. Case Nos. 03-156, 03-157,
03-158, 03-159, 03-160, and 03-161 for the proper cognizance by the Office of the Ombudsman
(Visayas).
4

On the other hand, since Ladislao was a private individual, the jurisdiction for the review of the
Resolution approving the filing of Criminal Informations against him for the crimes of Direct
Assault, Resistance to a Person in Authority or his Agents and Coercion was retained by the
Regional State Prosecutor.

In a Resolution18 dated 28 September 2004, the Regional State Prosecutor ordered the City
Prosecutor of Tanjay to move for the withdrawal of the Criminal Informations filed against
Ladislao on the ground that there is no probable cause to believe that respondent committed or
is guilty of the offenses charged. The dispositive portion of the Resolution reads:

Wherefore, the City Prosecutor of Tanjay is directed to move for the withdrawal of the
informations filed in court and to inform this Office of the action taken hereon within ten (10)
days from receipt hereof.19

For its part, the Office of the Ombudsman (Visayas) resolved the appeal brought before its
jurisdiction by approving the dismissal of the complaints filed by the spouses Salma against
respondent barangay officials.20 The decretal portion of the Resolution reads:

WHEREFORE, foregoing premises considered, the Joint Resolution dated July 12, 2004 issued
by the City Prosecutor Elson P. Bustamante of the Tanjay City Prosecution Office, ordering the
dismissal of criminal cases filed against herein respondents docketed as I.S. Case Nos. 03-156,
03-157, 03-158, 03-159, 03-160, and 03-161, respectively, is hereby APPROVED.21

Similarly ill-fated was the spouses Salma’s Motion for Reconsideration of the foregoing
resolution which was denied by the Ombudsman in an Order dated 29 March 2005 for lack of
merit.22

Unyielding, the spouses Salma filed this instant Petition for Certiorari[23] advancing the
argument that Deputy Ombudsman for the Visayas, Primo C. Miro, committed a grave abuse of
discretion amounting to lack or excess of jurisdiction in approving the dismissal of cases filed
against respondent barangay officials.

For our resolution then is the following issue:

WHETHER OR NOT DEPUTY OMBUDSMAN FOR THE VISAYAS, PRIMO C. MIRO

COMMITTED A GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN APPROVING THE DISMISSAL OF CASES FILED AGAINST MARTINEZ
AND THE BRGY. TANODS.

We rule in the negative.

In the eight-paged Petition24 filed by petitioner spouses, which was reproduced in toto in their
Memorandum,25 they generally averred that grave abuse of discretion attended the approval of
the dismissal of their complaints against the barangay officials, but miserably failed to
substantiate the allegation. Petitioner spouses availed themselves of an extraordinary remedy
allowed under the Rules by filing this Special Civil Action for Certiorari, under Rule 65 of the
Revised Rules of Court but the allegations advanced by the petitioner spouses were empty of
any material argument to prove their recantation that the Deputy Ombudsman gravely abused
his discretion.
5

Even if the instant petition is essentially bare in substance, this Court will nonetheless comb the
records and address the issue scantily laid by the spouses Salma and apply the pertinent legal
and jurisprudential principles to resolve this case.

In order to avail of the Special Civil Action for Certiorari under Rule 65 of the Revised Rules of
Court, petitioner in such cases must clearly show that public respondent acted without
jurisdiction or with grave abuse of discretion amounting to lack or excess in jurisdiction.26

By grave abuse of discretion is meant such capricious or whimsical exercise of judgment as is

equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount
to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at
all in contemplation of law as where the power is exercised in an arbitrary and despotic manner
by reason of passion and hostility.271avvphi1.net

In sum, for the extraordinary writ of certiorari to lie, there must be capricous, arbitrary or
whimsical exercise of power.

Applying the above-laid parameters in the case at bar, we must look into the Resolution dated
15 October 2004 and the Order dated 29 March 2005 issued by the Ombudsman and determine
whether there is a substantial evidence to support its conclusions in order to take it out from the
ambit of grave abuse of discretion as defined above.

In the disputed Resolution, the Ombudsman found that there is no probable cause to engender
a well-founded belief that the crimes charged against the barangay officials were indeed
committed and that they were probably guilty thereof.

It particularly cited that the acts of Ladislao in pointing his finger at Martinez and pushing him
away, thus, causing him to step backwards, could be taken as an assault against a person in
authority. Accordingly, the arrest without warrant of Ladislao by the barangay officials was
proper.

Significantly, the rule on presumption of regularity in the performance of official function aptly
applies in this case. Under the Rules of Evidence, it is presumed that official duty has been
regularly performed, unless contradicted.28 Consequently, if in the act of effecting lawful arrest
upon Ladislao, the latter was ridiculed or even injured, the same was not intentional but merely
an incidental consequence considering that he offered initial resistance against the arresting
barangay compelling the latter to use reasonable force. The same is true with the other acts
committed by the barangay officials by reason or on the occasion of effecting the lawful arrest.
The said acts were but the necessary and incidental repercussions of the performance of the
official duties by the respondents.

Finally, in the exercise of its discretion, the Ombudsman affirmed the findings of the Graft and
Investigation Officer that, as correctly ruled by the City Prosecutor, there is no probable cause in
filing the criminal charges against the barangay officials, and made a pronouncement that, while
probable cause need not be an actual certainty, it is regretted that, based on reasonable belief,
the same does not exist in the present cases.

Upon close scrunity of the foregoing Resolution, we find nothing whimsical, arbitrary, or
capricious in the above findings. The determination of the Deputy Ombudsman of the non-
existence of a reasonable ground to believe that the crime has been committed, is supported by
6

substantial evidence and therefore it cannot be gainsaid that the same is tantamount to grave
abuse of discretion.

The Ombudsman is empowered to determine whether there exists a reasonable ground to

believe that the crime has been committed and that the accused is probably guilty thereof and
thereafter file the corresponding informations before the appropriate courts.29 The authority
granted to government prosecutors, like the Ombudsman or the Deputy Ombudsman in the
instant case, to file criminal charges does not preclude them from refusing to file the information
when they believe that there is no prima facie evidence to do so.

In Salvador v. Desierto,30 we ruled:

On the issue of whether respondent Ombudsman committed grave abuse of discretion in

dismissing the complaint against respondents, let it be stressed that the Ombudsman has
discretion to determine whether a criminal case, given its 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 [and] substance or he may proceed with the investigation if, in his view, the
complaint is in due and proper form and substance.

Thus, saved on well-recognized exceptions,31 this Court has almost adopted quite aptly, a policy
of non-interference in the exercise of the Ombudsman’s constitutionally mandated powers.32

In Espinosa v. Office of the Ombudsman,33 we held:

The prosecution of offenses committed by public officers is vested in the Office of the
Ombudsman. To insulate the Office from outside pressure and improper influence, the
Constitution as well as R.A. 6770 has endowed it with a wide latitude of investigatory and
prosecutory powers virtually free from legislative, executive or judiciary intervention. This Court
consistently refrains from interfering with the exercise of its powers, and respects the initiative
and independence inherent in the Ombudsman who, "beholden to no one, acts as the champion
of the people and the preserver of the integrity of public service."

The non-interference rule that we rigorously observed 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, the functions of the courts will be
grievously 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 will be extremely swamped if they were compelled to
review the exercise of discretion on the part of fiscals and prosecuting attorneys, each time they
decide to file an information in court or dismiss a complaint by a private complainant.34

We have carefully examined the records, and we find no compelling reason to deviate from the
time-honored policy of non-interference. The Resolution of the Ombudsman was supported by
substantial evidence giving us no cogent reason to depart from his findings. As significantly
observed by the Ombudsman:

The acts of complainant Ladislao Salma in laying a hand on the respondent Barangay Captain
could be taken as an assault against a person in authority. The apprehension of complainant
Ladislao Salma was but the natural reaction of the respondent Barangay Tanods who
7

personally witnessed the pushing incident, especially that the complainant fled when asked to
go with them to the Tanjay Police Station for proper booking and disposition.35

On the other hand, the spouses Salma utterly failed to single out a particular act indicating
abuse of discretion other than the fleeting allegation that respondent Ombudsman has
committed such.

In sum, this Court has maintained a stature of non-interference from the discretion of the
Ombudsman provided there is no grave abuse of discretion. Absent a clear showing of grave
abuse of discretion as in the case at bar, we are constrained to uphold the findings of the
Ombudsman.

WHEREFORE, premises considered, the instant Petition is DISMISSED. Costs against the
petitioners.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. Nos. 172070-72 June 1, 2007

8

VICENTE P. LADLAD, NATHANAEL S. SANTIAGO, RANDALL B. ECHANIS, and REY

CLARO C. CASAMBRE, Petitioners,
vs.
SENIOR STATE PROSECUTOR EMMANUEL Y. VELASCO, SENIOR STATE PROSECUTOR
JOSELITA C. MENDOZA, SENIOR STATE PROSECUTOR AILEEN MARIE S. GUTIERREZ,
STATE PROSECUTOR IRWIN A. MARAYA, and STATE PROSECUTOR MERBA A. WAGA,
in their capacity as members of the Department of Justice panel of prosecutors
investigating I.S. Nos. 2006-225, 2006-226 and 2006-234, JUSTICE SECRETARY RAUL M.
GONZALEZ, DIRECTOR GENERAL ARTURO C. LOMIBAO, in his capacity as Chief,
Philippine National Police, P/CSUPT. RODOLFO B. MENDOZA, JR., and P/SUPT.
YOLANDA G. TANIGUE, Respondents.

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

G.R. Nos. 172074-76 June 1, 2007

LIZA L. MAZA, JOEL G. VIRADOR, SATURNINO C. OCAMPO, TEODORO A. CASIÑO,

CRISPIN B. BELTRAN, and RAFAEL V. MARIANO, Petitioners,
vs.
RAUL M. GONZALEZ, in his capacity as Secretary of the Department of Justice,
JOVENCITO R. ZUÑO, in his capacity as Chief State Prosecutor, the Panel of
Investigating Prosecutors composed of EMMANUEL Y. VELASCO, JOSELITA C.
MENDOZA, AILEEN MARIE S. GUTIERREZ, IRWIN A. MARAYA and MERBA A. WAGA
(Panel), RODOLFO B. MENDOZA, in his capacity as Acting Deputy Director, Directorate
for Investigation and Detective Management (DIDM), YOLANDA G. TANIGUE, in her
capacity as Acting Executive Officer of DIDM, the DEPARTMENT OF JUSTICE (DOJ), and
the PHILIPPINE NATIONAL POLICE (PNP), Respondents.

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

G.R. No. 175013 June 1, 2007

CRISPIN B. BELTRAN, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, SECRETARY RAUL M. GONZALEZ, in his capacity as the
Secretary of Justice and overall superior of the Public Prosecutors, HONORABLE
ENCARNACION JAJA G. MOYA, in her capacity as Presiding Judge of Regional Trial
Court of Makati City, Branch 146, and HONORABLE ELMO M. ALAMEDA, in his capacity
as Presiding Judge of Regional Trial Court of Makati City, Branch 150, Respondents.

DECISION

CARPIO, J.:

The Case

These are consolidated petitions for the writs of prohibition and certiorari to enjoin petitioners’
prosecution for Rebellion and to set aside the rulings of the Department of Justice (DOJ) and
the Regional Trial Court of Makati City (RTC Makati) on the investigation and prosecution of
petitioners’ cases.
9

The Facts

Petitioner in G.R. No. 175013, Crispin B. Beltran (Beltran), and petitioners in G.R. Nos. 172074-
76, Liza L. Maza (Maza), Joel G. Virador (Virador), Saturnino C. Ocampo (Ocampo), Teodoro A.
Casiño (Casiño), and Rafael V. Mariano (Mariano),1 are members of the House of
Representatives representing various party-list groups.2 Petitioners in G.R. Nos. 172070-72 are
private individuals. Petitioners all face charges for Rebellion under Article 134 in relation to
Article 135 of the Revised Penal Code in two criminal cases pending with the RTC Makati.

G.R. No. 175013 (The Beltran Petition)

Following the issuance by President Gloria Macapagal-Arroyo of Presidential Proclamation No.

1017 on 24 February 2006 declaring a "State of National Emergency," police officers3 arrested
Beltran on 25 February 2006, while he was en route to Marilao, Bulacan, and detained him in
Camp Crame, Quezon City. Beltran was arrested without a warrant and the arresting officers did
not inform Beltran of the crime for which he was arrested. On that evening, Beltran was
subjected to an inquest at the Quezon City Hall of Justice for Inciting to Sedition under Article
142 of the Revised Penal Code based on a speech Beltran allegedly gave during a rally in
Quezon City on 24 February 2006, on the occasion of the 20th anniversary of the EDSA
Revolution. The inquest was based on the joint affidavit of Beltran’s arresting officers who
claimed to have been present at the rally. The inquest prosecutor4 indicted Beltran and filed the
corresponding Information with the Metropolitan Trial Court of Quezon City (MeTC).5

The authorities brought back Beltran to Camp Crame where, on 27 February 2006, he was
subjected to a second inquest, with 1st Lt. Lawrence San Juan (San Juan), this time for
Rebellion. A panel of State prosecutors6 from the DOJ conducted this second inquest. The
inquest was based on two letters, both dated 27 February 2006, of Yolanda Tanigue (Tanigue)
and of Rodolfo Mendoza (Mendoza). Tanigue is the Acting Executive Officer of the Criminal
Investigation and Detection Group (CIDG), Philippine National Police (PNP), while Mendoza is
the Acting Deputy Director of the CIDG. The letters referred to the DOJ for appropriate action
the results of the CIDG’s investigation implicating Beltran, the petitioners in G.R. Nos. 172074-
76, San Juan, and several others as "leaders and promoters" of an alleged foiled plot to
overthrow the Arroyo government. The plot was supposed to be carried out jointly by members
of the Communist Party of the Philippines (CPP) and the Makabayang Kawal ng Pilipinas
(MKP), which have formed a "tactical alliance."

On 27 February 2006, the DOJ panel of prosecutors issued a Resolution finding probable cause
to indict Beltran and San Juan as "leaders/promoters" of Rebellion. The panel then filed an
Information with the RTC Makati. The Information alleged that Beltran, San Juan, and other
individuals "conspiring and confederating with each other, x x x, did then and there willfully,
unlawfully, and feloniously form a tactical alliance between the CPP/NPA, renamed as
Partidong Komunista ng Pilipinas (PKP) and its armed regular members as Katipunan ng Anak
ng Bayan (KAB) with the Makabayang Kawal ng Pilipinas (MKP) and thereby rise publicly and
take up arms against the duly constituted government, x x x."7 The Information, docketed as
Criminal Case No. 06-452, was raffled to Branch 137 under Presiding Judge Jenny Lind R.
Aldecoa-Delorino (Judge Delorino).

Beltran moved that Branch 137 make a judicial determination of probable cause against him.8
Before the motion could be resolved, Judge Delorino recused herself from the case which was
re-raffled to Branch 146 under Judge Encarnacion Jaja-Moya (Judge Moya).
10

In its Order dated 31 May 2006, Branch 146 sustained the finding of probable cause against
Beltran.9 Beltran sought reconsideration but Judge Moya also inhibited herself from the case
without resolving Beltran’s motion. Judge Elmo M. Alameda of Branch 150, to whom the case
was re-raffled, issued an Order on 29 August 2006 denying Beltran’s motion.

Hence, the petition in G.R. No. 175013 to set aside the Orders dated 31 May 2006 and 29
August 2006 and to enjoin Beltran’s prosecution.

In his Comment to the petition, the Solicitor General claims that Beltran’s inquest for Rebellion
was valid and that the RTC Makati correctly found probable cause to try Beltran for such felony.

G.R. Nos. 172070-72 and 172074-76 (The Maza and Ladlad Petitions)

Based on Tanigue and Mendoza’s letters, the DOJ sent subpoenas to petitioners on 6 March
2006 requiring them to appear at the DOJ Office on 13 March 2006 "to get copies of the
complaint and its attachment." Prior to their receipt of the subpoenas, petitioners had quartered
themselves inside the House of Representatives building for fear of being subjected to
warrantless arrest.

During the preliminary investigation on 13 March 2006, the counsel for the CIDG presented a
masked man, later identified as Jaime Fuentes (Fuentes), who claimed to be an eyewitness
against petitioners. Fuentes subscribed to his affidavit before respondent prosecutor Emmanuel
Velasco who then gave copies of the affidavit to media members present during the
proceedings. The panel of prosecutors10 gave petitioners 10 days within which to file their
counter-affidavits. Petitioners were furnished the complete copies of documents supporting the
CIDG’s letters only on 17 March 2006.

Petitioners moved for the inhibition of the members of the prosecution panel for lack of
impartiality and independence, considering the political milieu under which petitioners were
investigated, the statements that the President and the Secretary of Justice made to the media
regarding petitioners’ case,11 and the manner in which the prosecution panel conducted the
preliminary investigation. The DOJ panel of prosecutors denied petitioners’ motion on 22 March
2006. Petitioners sought reconsideration and additionally prayed for the dismissal of the cases.
However, the panel of prosecutors denied petitioners’ motions on 4 April 2006.

Petitioners now seek the nullification of the DOJ Orders of 22 March 2006 and 4 April 2006.

Acting on petitioners’ prayer for the issuance of an injunctive writ, the Court issued a status quo
order on 5 June 2006. Prior to this, however, the panel of prosecutors, on 21 April 2006, issued
a Resolution finding probable cause to charge petitioners and 46 others with Rebellion. The
prosecutors filed the corresponding Information with Branch 57 of the RTC Makati, docketed as
Criminal Case No. 06-944 (later consolidated with Criminal Case No. 06-452 in Branch 146),
charging petitioners and their co-accused as "principals, masterminds, [or] heads" of a
Rebellion.12 Consequently, the petitioners in G.R. Nos. 172070-72 filed a supplemental petition
to enjoin the prosecution of Criminal Case No. 06-944.

In his separate Comment to the Maza petition, the Solicitor General submits that the preliminary
investigation of petitioners was not tainted with irregularities. The Solicitor General also claims
that the filing of Criminal Case No. 06-944 has mooted the Maza petition.
11

The Issues

The petitions raise the following issues:

1. In G.R. No. 175013, (a) whether the inquest proceeding against Beltran for Rebellion was
valid and (b) whether there is probable cause to indict Beltran for Rebellion; and

2. In G.R. Nos. 172070-72 and 172074-76, whether respondent prosecutors should be enjoined
from continuing with the prosecution of Criminal Case No. 06-944.13

The Ruling of the Court

We find the petitions meritorious. On the Beltran Petition

The Inquest Proceeding against Beltran for Rebellion is Void.

Inquest proceedings are proper only when the accused has been lawfully arrested without
warrant.14 Section 5, Rule 113 of the Revised Rules of Criminal Procedure provides the
instances when such warrantless arrest may be effected, thus:

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

xxxx

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.

The joint affidavit of Beltran’s arresting officers15 states that the officers arrested Beltran, without
a warrant,16 for Inciting to Sedition, and not for Rebellion. Thus, the inquest prosecutor could
only have conducted – as he did conduct – an inquest for Inciting to Sedition and no other.
Consequently, when another group of prosecutors subjected Beltran to a second inquest
proceeding for Rebellion, they overstepped their authority rendering the second inquest void.
None of Beltran’s arresting officers saw Beltran commit, in their presence, the crime of
Rebellion. Nor did they have personal knowledge of facts and circumstances that Beltran had
just committed Rebellion, sufficient to form probable cause to believe that he had committed
Rebellion. What these arresting officers alleged in their affidavit is that they saw and heard
Beltran make an allegedly seditious speech on 24 February 2006.17

Indeed, under DOJ Circular No. 61, dated 21 September 1993, the initial duty of the inquest
officer is to determine if the arrest of the detained person was made "in accordance with the
12

provisions of paragraphs (a) and (b) of Section 5, Rule 113."18 If the arrest was not properly
effected, the inquest officer should proceed under Section 9 of Circular No. 61 which provides:

Where Arrest Not Properly Effected.— Should the Inquest Officer find that the arrest was not
made in accordance with the Rules, he shall:

a) recommend the release of the person arrested or detained;

b) note down the disposition on the referral document;

c) prepare a brief memorandum indicating the reasons for the action taken; and

d) forward the same, together with the record of the case, to the City or Provincial
Prosecutor for appropriate action.

Where the recommendation for the release of the detained person is approved by the City or
Provincial Prosecutor but the evidence on hand warrant the conduct of a regular preliminary
investigation, the order of release shall be served on the officer having custody of said detainee
and shall direct the said officer to serve upon the detainee the subpoena or notice of preliminary
investigation, together with the copies of the charge sheet or complaint, affidavit or sworn
statements of the complainant and his witnesses and other supporting evidence. (Emphasis
supplied)

For the failure of Beltran’s panel of inquest prosecutors to comply with Section 7, Rule 112 in
relation to Section 5, Rule 113 and DOJ Circular No. 61, we declare Beltran’s inquest void.19
Beltran would have been entitled to a preliminary investigation had he not asked the trial court
to make a judicial determination of probable cause, which effectively took the place of such
proceeding.

There is No Probable Cause to Indict

Beltran for Rebellion.

Probable cause is 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."20 To accord respect to the
discretion granted to the prosecutor and for reasons of practicality, this Court, as a rule, does
not interfere with the prosecutor’s determination of probable cause for otherwise, courts would
be swamped with petitions to review the prosecutor’s findings in such investigations.21 However,
in the few exceptional cases where the prosecutor abused his discretion by ignoring a clear
insufficiency of evidence to support a finding of probable cause, thus denying the accused his
right to substantive and procedural due process, we have not hesitated to intervene and
exercise our review power under Rule 65 to overturn the prosecutor’s findings.22 This exception
holds true here.

Rebellion under Article 134 of the Revised Penal Code is committed –

[B]y rising publicly and taking arms against the Government for the purpose of removing from
the allegiance to said Government or its laws, the territory of the Republic of the Philippines or
13

any part thereof, or any body of land, naval, or other armed forces or depriving the Chief
Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.

The elements of the offense are:

1. That there be a (a) public uprising and (b) taking arms against the Government; and

2. That the purpose of the uprising or movement is either –

(a) to remove from the allegiance to said Government or its laws:

(1) the territory of the Philippines or any part thereof; or

(2) any body of land, naval, or other armed forces; or

(b) to deprive the Chief Executive or Congress, wholly or partially, of any of their
powers and prerogatives.23

Thus, by its nature, rebellion is a crime of the masses or multitudes involving crowd action done
in furtherance of a political end.24

The evidence before the panel of prosecutors who conducted the inquest of Beltran for
Rebellion consisted of the affidavits and other documents25 attached to the CIDG letters. We
have gone over these documents and find merit in Beltran’s contention that the same are
insufficient to show probable cause to indict him for Rebellion. The bulk of the documents
consists of affidavits, some of which were sworn before a notary public, executed by members
of the military and some civilians. Except for two affidavits, executed by a certain Ruel Escala
(Escala), dated 20 Febuary 2006,26 and Raul Cachuela (Cachuela), dated 23 February 2006,27
none of the affidavits mentions Beltran.28 In his affidavit, Escala recounted that in the afternoon
of 20 February 2006, he saw Beltran, Ocampo, Casiño, Maza, Mariano, Virador, and other
individuals on board a vehicle which entered a chicken farm in Bucal, Padre Garcia, Batangas
and that after the passengers alighted, they were met by another individual who looked like San
Juan. For his part, Cachuela stated that he was a former member of the CPP and that (1) he
attended the CPP’s "10th Plenum" in 1992 where he saw Beltran; (2) he took part in criminal
activities; and (3) the arms he and the other CPP members used were purchased partly from
contributions by Congressional members, like Beltran, who represent party-list groups affiliated
with the CPP.

The allegations in these affidavits are far from the proof needed to indict Beltran for taking part
in an armed public uprising against the government. What these documents prove, at best, is
that Beltran was in Bucal, Padre Garcia, Batangas on 20 February 2006 and that 14 years
earlier, he was present during the 1992 CPP Plenum. None of the affidavits stated that Beltran
committed specific acts of promoting, maintaining, or heading a rebellion as found in the DOJ
Resolution of 27 February 2006. None of the affidavits alleged that Beltran is a leader of a
rebellion. Beltran’s alleged presence during the 1992 CPP Plenum does not automatically make
him a leader of a rebellion.

In fact, Cachuela’s affidavit stated that Beltran attended the 1992 CPP Plenum as "Chairman,
Kilusang Mayo Uno (KMU)." Assuming that Beltran is a member of the CPP, which Beltran does
14

not acknowledge, mere membership in the CPP does not constitute rebellion.29 As for the
alleged funding of the CPP’s military equipment from Beltran’s congressional funds, Cachuela’s
affidavit merely contained a general conclusion without any specific act showing such funding.
Cachuela merely alleged that "ang mga ibang mga pondo namin ay galing sa mga party list na
naihalal sa Kongreso tulad ng BAYAN MUNA – pimumunuan nila SATUR OCAMPO at
CRISPIN BELTRAN, x x x."30 Such a general conclusion does not establish probable cause.

In his Comment to Beltran’s petition, the Solicitor General points to Fuentes’ affidavit, dated 25
February 2006,31 as basis for the finding of probable cause against Beltran as Fuentes provided
details in his statement regarding meetings Beltran and the other petitioners attended in 2005
and 2006 in which plans to overthrow violently the Arroyo government were allegedly discussed,
among others.

The claim is untenable. Fuentes’ affidavit was not part of the attachments the CIDG referred to
the DOJ on 27 February 2006. Thus, the panel of inquest prosecutors did not have Fuentes’
affidavit in their possession when they conducted the Rebellion inquest against Beltran on that
day. Indeed, although this affidavit is dated 25 February 2006, the CIDG first presented it only
during the preliminary investigation of the other petitioners on 13 March 2006 during which
Fuentes subscribed to his statement before respondent prosecutor Velasco.

Respondent prosecutors later tried to remedy this fatal defect by motu proprio submitting to
Branch 137 of the RTC Makati Fuentes’ affidavit as part of their Comment to Beltran’s motion
for judicial determination of probable cause. Such belated submission, a tacit admission of the
dearth of evidence against Beltran during the inquest, does not improve the prosecution’s case.
Assuming them to be true, what the allegations in Fuentes’ affidavit make out is a case for
Conspiracy to Commit Rebellion, punishable under Article 136 of the Revised Penal Code, not
Rebellion under Article 134. Attendance in meetings to discuss, among others, plans to bring
down a government is a mere preparatory step to commit the acts constituting Rebellion under
Article 134. Even the prosecution acknowledged this, since the felony charged in the
Information against Beltran and San Juan in Criminal Case No. 06-452 is Conspiracy to Commit
Rebellion and not Rebellion. The Information merely alleged that Beltran, San Juan, and others
conspired to form a "tactical alliance" to commit Rebellion. Thus, the RTC Makati erred when it
nevertheless found probable cause to try Beltran for Rebellion based on the evidence before it.

The minutes32 of the 20 February 2006 alleged meeting in Batangas between members of MKP
and CPP, including Beltran, also do not detract from our finding.1a\^/phi1.net Nowhere in the
minutes was Beltran implicated. While the minutes state that a certain "Cris" attended the
alleged meeting, there is no other evidence on record indicating that "Cris" is Beltran. San Juan,
from whom the "flash drive" containing the so-called minutes was allegedly taken, denies
knowing Beltran.

To repeat, none of the affidavits alleges that Beltran is promoting, maintaining, or heading a
Rebellion. The Information in Criminal Case No. 06-452 itself does not make such allegation.
Thus, even assuming that the Information validly charges Beltran for taking part in a Rebellion,
he is entitled to bail as a matter of right since there is no allegation in the Information that he is a
leader or promoter of the Rebellion.33 However, the Information in fact merely charges Beltran
for "conspiring and confederating" with others in forming a "tactical alliance" to commit rebellion.
As worded, the Information does not charge Beltran with Rebellion but with Conspiracy to
Commit Rebellion, a bailable offense.34
15

On the Ladlad and Maza Petitions

The Preliminary Investigation was Tainted

With Irregularities.

As in the determination of probable cause, this Court is similarly loath to enjoin the prosecution
of offenses, a practice rooted on public interest as the speedy closure of criminal investigations
fosters public safety.35 However, such relief in equity may be granted if, among others, the same
is necessary (a) to prevent the use of the strong arm of the law in an oppressive and vindictive
manner36 or (b) to afford adequate protection to constitutional rights.37 The case of the
petitioners in G.R. Nos. 172070-72 and 172074-76 falls under these exceptions.

The procedure for preliminary investigation of offenses punishable by at least four years, two
months and one day is outlined in Section 3, Rule 112 of the Revised Rules of Criminal
Procedure, thus:

Procedure.—The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied
by the affidavits of the complainant and his witnesses, as well as other supporting
documents to establish probable cause. They shall be in such number of copies as there
are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed
and sworn to before any prosecutor or government official authorized to administer oath,
or, in their absence or unavailability, before a notary public, each of whom must certify
that he personally examined the affiants and that he is satisfied that they voluntarily
executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall
either dismiss it if he finds no ground to continue with the investigation, or issue a
subpoena to the respondent attaching to it a copy of the complaint and its supporting
affidavits and documents.

The respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his expense. If
the evidence is voluminous, the complainant may be required to specify those which he
intends to present against the respondent, and these shall be made available for
examination or copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for
examination, copying, or photographing at the expense of the requesting party.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting
affidavits and documents, the respondent shall submit his counter-affidavit and that of
his witnesses and other supporting documents relied upon for his defense. The counter-
affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of
this section, with copies thereof furnished by him to the complainant. The respondent
shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.
16

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-
affidavits within the ten (10) day period, the investigating officer shall resolve the
complaint based on the evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be clarified
from a party or a witness. The parties can be present at the hearing but without the right
to examine or cross-examine. They may, however, submit to the investigating officer
questions which may be asked to the party or witness concerned.

The hearing shall be held within ten (10) days from submission of the counter-affidavits
and other documents or from the expiration of the period for their submission. It shall be
terminated within five (5) days.

(f) Within ten (10) days after the investigation, the investigating officer shall determine
whether or not there is sufficient ground to hold the respondent for trial. (Emphasis
supplied)

Instead of following this procedure scrupulously, as what this Court had mandated in an earlier
ruling, "so that the constitutional right to liberty of a potential accused can be protected from any
material damage,"38 respondent prosecutors nonchalantly disregarded it. Respondent
prosecutors failed to comply with Section 3(a) of Rule 112 which provides that the complaint
(which, with its attachment, must be of such number as there are respondents) be accompanied
by the affidavits of the complainant and his witnesses, subscribed and sworn to before any
prosecutor or government official authorized to administer oath, or, in their absence or
unavailability, before a notary public. Respondent prosecutors treated the unsubscribed letters
of Tanigue and Mendoza of the CIDG, PNP as complaints39 and accepted the affidavits
attached to the letters even though some of them were notarized by a notary public without any
showing that a prosecutor or qualified government official was unavailable as required by
Section 3(a) of Rule 112.

Further, Section 3(b) of Rule 112 mandates that the prosecutor, after receiving the complaint,
must determine if there are grounds to continue with the investigation. If there is none, he shall
dismiss the case, otherwise he shall "issue a subpoena to the respondents." Here, after
receiving the CIDG letters, respondent prosecutors peremptorily issued subpoenas to
petitioners requiring them to appear at the DOJ office on 13 March 2006 "to secure copies of
the complaints and its attachments." During the investigation, respondent prosecutors allowed
the CIDG to present a masked Fuentes who subscribed to an affidavit before respondent
prosecutor Velasco. Velasco proceeded to distribute copies of Fuentes’ affidavit not to
petitioners or their counsels but to members of the media who covered the proceedings.
Respondent prosecutors then required petitioners to submit their counter-affidavits in 10 days. It
was only four days later, on 17 March 2006, that petitioners received the complete copy of the
attachments to the CIDG letters.1a\^/phi1.net

These uncontroverted facts belie respondent prosecutors’ statement in the Order of 22 March
2006 that the preliminary investigation "was done in accordance with the Revised Rules o[f]
Criminal Procedure."40 Indeed, by peremptorily issuing the subpoenas to petitioners, tolerating
the complainant’s antics during the investigation, and distributing copies of a witness’ affidavit to
members of the media knowing that petitioners have not had the opportunity to examine the
charges against them, respondent prosecutors not only trivialized the investigation but also lent
credence to petitioners’ claim that the entire proceeding was a sham.
17

A preliminary investigation is the crucial sieve in the criminal justice system which spells for an
individual the difference between months if not years of agonizing trial and possibly jail term, on
the one hand, and peace of mind and liberty, on the other hand. Thus, we have characterized
the right to a preliminary investigation as not "a mere formal or technical right" but a
"substantive" one, forming part of due process in criminal justice.41 This especially holds true
here where the offense charged is punishable by reclusion perpetua and may be non-bailable
for those accused as principals.

Contrary to the submission of the Solicitor General, respondent prosecutors’ filing of the
Information against petitioners on 21 April 2006 with Branch 57 of the RTC Makati does not
moot the petitions in G.R. Nos. 172070-72 and 172074-76. Our power to enjoin prosecutions
cannot be frustrated by the simple filing of the Information with the trial court.1a\^/phi1.net

On Respondent Prosecutors’ Lack of Impartiality

We find merit in petitioners’ doubt on respondent prosecutors’ impartiality. Respondent

Secretary of Justice, who exercises supervision and control over the panel of prosecutors,
stated in an interview on 13 March 2006, the day of the preliminary investigation, that, "We [the
DOJ] will just declare probable cause, then it’s up to the [C]ourt to decide x x x."42 Petitioners
raised this issue in their petition,43 but respondents never disputed the veracity of this statement.
This clearly shows pre-judgment, a determination to file the Information even in the absence of
probable cause.

A Final Word

The obvious involvement of political considerations in the actuations of respondent Secretary of

Justice and respondent prosecutors brings to mind an observation we made in another equally
politically charged case. We reiterate what we stated then, if only to emphasize the importance
of maintaining the integrity of criminal prosecutions in general and preliminary investigations in
particular, thus:

[W]e cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving
the impression that their noble office is being used or prostituted, wittingly or unwittingly, for
political ends, or other purposes alien to, or subversive of, the basic and fundamental objective
of observing the interest of justice evenhandedly, without fear or favor to any and all litigants
alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the
established procedure may be public’s perception of the impartiality of the prosecutor be
enhanced.441a\^/phi1.net

WHEREFORE, we GRANT the petitions. In G.R. No. 175013, we SET ASIDE the Order dated
31 May 2006 of the Regional Trial Court, Makati City, Branch 146 and the Order dated 29
August 2006 of the Regional Trial Court, Makati City, Branch 150. In G.R. Nos. 172070-72 and
172074-76, we SET ASIDE the Orders dated 22 March 2006 and 4 April 2006 issued by
respondent prosecutors. We ORDER the Regional Trial Court, Makati City, Branch 150 to
DISMISS Criminal Case Nos. 06-452 and 06-944.

SO ORDERED.
18

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 111806 March 9, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BENJAMIN GALANO y GLORIA, ELMER HONORIO y GAYO, BRIGIDO TRIPOLI y
CABILOSA and ROMULO STA. IGLESIA y CUISON, accused, BENJAMIN GALANO y
GLORIA, BRIGIDO TRIPOLI y CABILOSA and ROMULO STA. IGLESIA y CUISON, accused-
appellants.

QUISUMBING, J.:
19

This is an appeal from the decision of the Regional Trial Court of Manila, Branch 5, 1 convincing
accused-appellants Benjamin Galano y Gloria, Brigido Tripoli y Cabilosa, and Romulo Sta.
Iglesia y Cuison of the crime of murder under Article 248 (1) of the Revised Penal Code for the
killing of Leonardo Torres, and imposing upon them the penalty of reclusion perpetua. Their co-
accused, Elmer Honorio y Gayo, was acquitted.

Benjamin was a 30 year-old laundryman; Brigido, a 24 year-old janitor; and Romulo, a 24 year-
old baker, at the time of the alleged offense. They all resided in the Sampaloc area of Manila.
Their alleged victims, Virgilio and Leonardo Torres, were total strangers to the appellants. Both
were brothers who merely happened to be waiting for a ride and came to the succor of an
alleged snatching victim when both were suddenly grabbed from behind by appellants Brigido
and Romulo, and then stabbed by Benjamin. Leonardo succumbed to stab wounds but Virgilio
survived to tell his story before the trial court.

The pertinent facts in this case are as follows:

On September 8, 1990, at around 8:30 in the evening, while Virgilio and his older brother,
Leonardo, were standing at a street corner of España near Centro St., waiting for a ride, they
heard somebody shout "snatcher". They approached and asked him what happened. 2
Suddenly, a fast-running jeepney going to Lepanto made a turn at Centro St. and parked on
España. A man with a knife in his left hand (later identified as appellant Benjamin) alighted from
the jeepney and ran after the person who had shouted "snatcher". Upon seeing Benjamin this
person ran away. 3 Virgilio then lost sight of both in the traffic. He and his brother Leonardo
continued waiting for a ride. After a while, two men alighted from the jeepney. 4 To the surprise
of Virgilio, the two men (whom he later identified as appellants Brigido and Romulo) suddenly
held him and his brother. 5 Appellant Brigido embraced Virgilio from the back, while appellant
Romulo similarly held the brother Leonardo. 6 Appellant Benjamin soon appeared and suddenly
stabbed Virgilio on the right side of his stomach, then turned to Leonardo and likewise stabbed
him in the stomach. 7 Thereafter, the three assailants ran towards the parked jeepney, which the
driver first maneuvered backwards, then sped off towards Lepanto St.. As the two brothers tried
to follow the jeepney, Leonardo turned La Virgilio to ask if he was also hit, and Virgilio replied
"yes". After that, Leonardo fell on the pavement. In spite of the pain, Virgilio continued to run
after the jeepney and took note of its plate number, CBR 522. Virgilio even managed to throw
stones at the speeding jeepney. 8 Same bystanders joined him in running after the jeepney. 9 He
shouted for help. Some people heard him and brought his brother and him to the UST Hospital.
There, Leonardo was declared dead on arrival.

Virgilio was more fortunate. His wounds only required surgery. Before he was operated on, he
informed his father of the plate number of the jeepney that their assailants used.

Virgilio stayed in the hospital for more or less a month. 10 He only saw the assailants again
when he identified them at the Western Police District headquarters from a police line-up of
eight persons. 11 He positively identified appellants Brigido and Romulo as the ones who held
him and his brother, respectively, and appellant Benjamin as the one who stabbed them. 12

On October 16, 1990, the Assistant City Prosecutor of Manila filed an Information 13 for Murder
against four (4) accused, as follows:
20

The undersigned accuses Benjamin Galano y Gloria, Elmer Honorio y Gayo,

Brigido Tripoli y Cabilosa and Romulo Sta. Iglesia y Cuison of the crime of
Murder, committed as follows:

That on or about September 8, 1990 in the City of Manila, Philippines, the said
accused conspiring and confederating together and helping one another, with
intent to kill and with treachery and evident premeditation, attack, assault, and
use personal violence upon one LEONARDO TORRES Y BARTOLOME by then
and there holding his two arms and thereafter stabbed him at the back of his
body, thereby inflicting upon said Leonardo Torres y Bartolome mortal wounds
which were the direct and immediate cause of his death thereafter.

On December 5, 1990, upon arraignment, all accused duly assisted by counsel de oficio,
entered a plea of not guilty.

Trial ensued, with the prosecution presenting two witnesses, namely (1) Virgilio Torres, the
brother of the deceased Leonardo Torres; and (2) Dr. Marcial Ceñido y Guevarra, a Medico-
Legal Officer of the Western Police District who conducted the post-mortem examination on
Leonardo Torres, and who testified that the latter died as a result of severe hemorrhage caused
by the stab wound which pierced the internal organs of the victim. 14

For the defense, appellants testified on their behalf and interposed the defense of alibi and
denial. Accused Elmer Honorio waived his right to present evidence on his behalf.

Appellant Benjamin testified that on September 8, 1990, at around 7:00 o'clock in the evening,
he left his place of work (Metrobank) where he is a janitor and proceeded to Raon to canvass
certain appliances. On his way home from Quiapo, the passenger jeepney which he was riding
was stoned. Some of the passengers jumped out of the vehicle but he remained inside the
jeepney. 15 Thereafter, he saw a man being chased by two other persons. Still, the jeepney
proceeded to Lepanto St. where he alighted and went home. 16

Appellants Romulo and Brigido, in their corroborating testimonies, claimed that on September 8,
1990, at around 7:00 o'clock in the evening, they were watching the movie Die Hard II in a
moviehouse along Morayta St., and that they left the moviehouse late in the evening and took a
ride home to Antipolo St. along España. 17 The jeepney they were riding was stoned but they
remained inside while the other passengers jumped off the jeepney. Nevertheless, the jeepney
continued on España up to Antipolo St., where they alighted and proceeded to the house of
Romulo spent the night. 18

On August 20, 1993, the trial court rendered its decision, disposing as follows:

WHEREFORE, premises considered, except for Elmer Honorio who had no

participation in the crime charged, judgment is hereby rendered finding herein all
the three (3) accused guilty beyond reasonable doubt of the crime of murder
under Article 248 (1) of the Revised Penal Code and accordingly, the penalty of
RECLUSION PERPETUA is imposed upon them.

Hence, the present appeal. In their consolidated brief, 19 appellants Benjamin, Romulo and
Brigido assign the following errors:
21

A.

THE LOWER COURT ERRED IN NOT FINDING THAT THE

UNCORROBORATED TESTIMONY OF PROSECUTION'S WITNESS
VIRGILIO TORRES IS UNRELIABLE AND INCREDIBLE THEREFORE,
INSUFFICIENT TO ESTABLlSH THE IDENTITY OF THE ASSAILANTS.

B.

THE LOWER COURT ERRED IN NOT FINDING THAT ACCUSED

BENJAMIN GALANO COULD NOT HAVE EXECUTED OR
PERPETRATED (SIC) THE STABBING COMMITTED BY A "LEFT
HANDED" ASSALLANT, WHO WAS THEN IN FRONT OF THE VICTIM,
CONSIDERING THAT, AS BORNE BY THE RECORDS OF THIS CASE,
SAID ACCUSSED GALANO IS "RIGHT HANDED".

C.

THE LOWER COURT ERRED IN NOT FINDING THAT THE FAILURE

OF THE PROSECUTION TO ESTABLISH THE MOTIVE ON THE PART
OF THE ACCUSED IN COMMITTING THE MURDER IS A GROUND
FOR THE ACQUITTAL OF THE ACCUSED, CONSIDERING THAT THE
IDENTITY OF THE ASSAILANTS IS IN QUESTION OR DOUBTFUL
AND HAS NOT BEEN ESTABLISHEDBY EVIDENCE.

D.

THE LOWER COURT ERRED IN NOT DISMISSING THE

INFORMATION OR ACQUITTING THE ACCUSED CONSIDERING
THAT THE GUILT OF THE ACCUSED HAS NOT BEEN PROVEN
BEYOND REASONABLE DOUBT.

E.

THE LOWER COURT ERRED IN NOT RULING THAT TREACHERY

HAS NOT ATTENDED THE KILLING OF VICTIM.

F.

THE LOWER COURT ERRED IN IMPOSING THE PENALTY OF

RECLUSION PERPETUA, SINCE THE OFFENSE PROVED BY THE
EVIDENCE IS HOMICIDE PUNISHABLE BY RECLUSION TEMPORAL.
20

Considering the aforecited assignment of errors, we find that the main issues in this case
concern the credibility of the principal witness, Virgilio Torres; the sufficiency of the evidence
presented by the prosecution to convict the appellants of murder; and the propriety of the
penalty imposed by the trial court.
22

A. ON THE CREDIBILITY OF PROSECUTION WITNESS VIRGILIO

TORRES.

Appellants contend that Virgilio Torres was not a credible witness. He could not have possibly
identified appellants inasmuch as he failed to state that the nearby lamp post shed enough light
on the faces of the appellants at the time of the incident, and that coupled with the fast turn of
events, no man would have the capacity to remember details of the alleged incident at the same
time. Further, appellants argue that Benjamin could not have stabbed the victims with his left
hand since he was "right-handed," as indicated in the Booking Sheet and Arrest Report.

We find appellants contention unconvincing. In several cases, we have found that illumination
from a lamp post is sufficient for purposes of identification, 21 particularly in this case where the
victims had an opportunity to see the faces of the assailants before and after they were attacked
and considering that the distance from the locus criminis to the parked jeepney where assailants
fled was only about ten (10) armslengths. 22

That Virgilio Torres could vividly recall the circumstances attending the killing of his brother is
not at all surprising. It has been repeatedly ruled that people react differently under emotional
stress and there is no standard form of behavior when one is confronted by a shocking incident.
23
In general, witnesses to a crime react in different ways. 24 Witnesses to starting occurrences
react differently depending upon their situation and state of mind, and there is no standard form
of human behavioral response when one is confronted with a strange, startling or frightful
experience. 25 The sudden cold-blooded attack on the two brothers by total strangers must have
heightened the memory of Virgilio, such that the image of the appellants must have been
literally burned into his memory and thus enabled him to identify the appellants subsequently
with absolute confidence.

Appellants assert that the testimony of Virgilio Torres was uncorroborated. For indeed, the lips
of his brother, Leonardo, were sealed by death. But the sole testimony of an eyewitness, if
found convincing and trustworthy by the court, is sufficient to support a finding of guilt beyond
reasonable doubt. 26 The testimony of a lone eyewitness, if found positive and credible by the
trial court, is sufficient to support a conviction especially when the testimony bears the earmarks
of truth and sincerity and had been delivered spontaneously, naturally and in a straightforward
manner. 27 Witnesses are to be weighed, not numbered. Hence, it is not at all uncommon to
reach a conclusion of guilt on the basis of the testimony of a single witness. For although the
number of witnesses may be considered a factor in the appreciation of evidence,
preponderance is not necessarily with the greatest number and conviction can still be had on
the basis of the credible and positive testimony of a single witness. 28 Corroborative evidence is
deemed necessary "only when there are reasons to warrant the suspicion that the witness
falsified the truth or that his observation had been inaccurate. 29 In this case, we find the
testimony of Virgilio Torres convincing and trustworthy. The trial court correctly relied on his
testimony. The defense failed to prove any ill-motive on his part to testify against appellants. In
the absence of evidence or any indicium that the prosecution's main witness harbored ill
motives against the accused, the presumption is that he was not so moved and that his
testimony was untainted with bias. 30

Lastly, we find no reason to disturb the factual findings of the trial court, particularly in regard to
the fact that although Benjamin was right-handed, according to the Booking Sheet and Arrest
Report, for nothing therein negates the fact that he was the one who stabbed the victims.
Nothing on record shows that Benjamin's left hand could not be used in a lethal attack.
23

B. ON THE ABSENCE OF MOTIVE AND THE DEFENSE OF ALIBI

Appellants claim they have no possible motive to attack the victims, who were total strangers to
them. In the crime of murder, however, motive is not an element of the offense. Motive because
material only when the evidence is circumstantial or inconclusive, and there some doubt on
whether a crime has been committed or whether the accused has committed it. Indeed, motive
is totally irrelevant when ample direct evidence sustains the culpability of the accused beyond
reasonable doubt. 31 Where a reliable eyewitness has fully and satisfactorily identified the
accused as the perpetrator of the felony, motive becomes immaterial in the successful
prosecution of a criminal case. 32 Hence, whether or not appellants had any motive in attacking
the victims, their conviction may still follow from the positive and categorical identification made
by witness Virgilio Torres.

Appellants profess innocence and invoke the defense of denial and alibi. For alibi to prosper,
however, appellants must prove not only that they were not present at the scene of the crime
but also that it was physically impossible for them to have been present there at the time the
offense was committed. 33 Here, appellants not only admitted to being within the vicinity of the
commission of the crime but also failed to prove the physical impossibility of their being present
at the time and place it was committed. It is well-settled that "[p]ositive identification, where
categorical and consistent and without of ill motive on the part of the eyewitness testifying on
the matter, prevails over alibi and denial which if not substantiated by clear and convincing
evidence are negative and self-serving evidence undeserving weight in law." 34

C. ON THE EXISTENCE OF TREACHERY

Appellants contend that no treachery attended the fatal attack on Leonardo, for though the
victim's hands were held at the back, he could have used his lower extremities to repel the
attack by kicking the assailant. We find, however, that the deceased was hardly in a position to
defend himself.

There is treachery when the offender commits any of the crimes against persons employing
means, methods or forms in the execution thereof, which tend directly and specially to insure its
execution, without risk to himself arising from defense which the offended party might make. 35
For treachery to be considered a qualifying circumstance, two conditions must be satisfied: (a)
the malefactor employed such means, method or manner of execution as to ensure his or her
safety from the defensive or retaliatory acts of the victim, and (b) the said means, method or
manner of execution was deliberately adopted. 36 The essence of treachery is that the attack is
deliberate and without warning — done in a swift and unexpected manner, affording the
hapless, unarmed and unsuspecting victim no chance to resist or to escape. 37 In this case, the
attack on the two brothers was unexpected and sudden, and neither of them could have
resisted the knife attack by Benjamin even if they wanted to because of its suddenness.
Moreover, the brothers were each held in the tight embrace of appellants Romulo and Brigido.
At no time were the assailants open to retaliation. Also, they immediately fled from the scene of
the crime by the use of a motor vehicle, a jeepney. Clearly, treachery qualified the killing to
murder.

D. ON THE CHARACTERIZATION OF THE CRIME AND THE

PROPRIETY OF THE PENALTY
24

Considering that treachery attended the commission of the offense, we agree with the trial court
that the crime committed is murder, under Article 248, No. 1 of the Revised Penal Code.

However, contrary to the allegation in the information that the killing was attended by evident
premeditation, we cannot appreciate this aggravating circumstance since it was not proved with
"clear and convincing evidence." 38 The prosecution ought to have shown the following: (1) the
time when the accused determined to commit the crime, (2) an act manifestly indicating that the
accused clung to his determination, and (3) a sufficient lapse of time between such a
determination and its execution to allow him to reflect upon the consequences of his act. 39 The
records do not show the presence of these three conditions, nor any attempt on the part of the
prosecution to establish them.

In this case, the offense was committed prior to the passage of Republic Act No. 7659,
commonly known as the death penalty law. The penalty for the crime of murder then was
reclusion temporal in its maximum period to death. There being no aggravating or mitigating
circumstances, the trial court correctly imposed on appellants the penalty of reclusion perpetua.
In addition to said penalty, appellants ought also to jointly and severally pay civil indemnity to
the heirs of the victim in the amount of fifty thousand pesos (P50,000.00); pursuant to prevailing
case law.

WHEREFORE, the assailed Decision finding appellants guilty of murder beyond reasonable doubt and
sentencing them to reclusion perpetua is hereby AFFIRMED. Appellants are also hereby ORDERED to
indemnify jointly and severally the heirs of the victim, Leonardo Torres, in the amount of P50,000.00, in
line with current jurisprudence. Costs against appellants.1âwphi1.nêt
SO ORDERED

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-7447 January 2, 1913

THE UNITED STATES, plaintiff-appellee,

vs.
NICASIO CAPULE, defendant-appellant.

Luciano de la Rosa, for appellant.

Attorney-General Villamor, for appellee.

TORRES, J.:

Appeal by the defendant from a judgment of conviction rendered in this case by the Honorable
Vicente Jocson, judge.

On September 2, 1903, Nicasio Capule, for the purpose of appropriating to himself a tract of
coconut land, situated in the town of San Pablo, Laguna, without the knowledge or consent of
25

the owners thereof, the married couple Aniceto Maghirang and Isabel Pili, by agreement and
cooperation with the notary public, Inocente Martinez, who later died, prepared and drew up a
document setting forth the sale in his favor of the said land, pretending that it was made and
executed by the said owners of the tract, stating in the document that they had made the
declaration that they had sold said land for the sum of 550 pesos paid at the time of the sale to
the vendors, and Jacinto Peñaflor and Jorge Tolentino appear in said document as witnesses of
the execution thereof; and Eulogio Ortega and Doroteo Guia as the signers of the deed of sale,
because the alleged vendors did not know how to do so. Recorded at the bottom of the
document was their ratification of its contents in the presence of said notary, before whom the
said married couple appeared. The defendant Capule exhibited said document later, although
he had been assured that it was false, in a trial before the justice of the peace of that town in the
attempt to sustain his alleged right to the said piece of land.

For this reason a complaint was filed on February 3, 1910, by the provincial fiscal in the Court of
First Instance of Laguna, charging Nicasio Capule with the crimes of falsification of a public
document and estafa. After due trial the judge rendered judgment therein on March 21, 1911,
sentencing Nicasio Capule to the penalty of eight years of presidio mayor, to payment of a fine
of 2,000 pesetas, the accessories, and the costs; from which judgment the defendant appealed.

The document whose falsification is here in question, Exhibit A, the original whereof appears at
pages 17 and 148 of the file exhibits and has been attached to the complaint, seems to have
been executed on September 2, 1903, by Aniceto Maghirang y Espiritu and Isabel Pili y
Emnaceno, of legal age, residents of San Pablo, who declare therein that they have agreed with
the accused Capule on the real and absolute sale of a piece of land planted with 42 fruit-bearing
coconut trees and approximately 300 not bearing fruit, for the sum of P550, which the purchaser
has paid them to their entire satisfaction, which land is located in the place called Quinayoan,
barrio of Dolores of the said town, with its boundaries and situation stated; and further setting
forth that the land is the property of Isabel Pili, who acquired it by inheritance from her deceased
niece, Claudia Reyes, according to a certified copy of some affidavit proceedings; that the land
described had not been sold, ceded or encumbered in favor of any person other than Nicasio
Capule, to whom then and thenceforth they delivered the possession and usufruct of said land
as its legitimate owner, with right to alienate it, they being responsible to Capule, his heirs and
successors in interest for the ownership, and agreeing to defend him against any just claims
that might be presented; and Nicasio Capule y Capitulo, informed of the contents of the
document by the vendor married couple, accepted it on his part; and as the vendors do not
know how to sign Eulogio Ortega and Doroteo Guia do so at their request, as does also the
purchaser, who signs the document in duplicate and to the same effect in the town hall of San
Pablo, and there furthermore appear therein the signatures of Jacinto Peñaflor and Jorge
Tolentino as witnesses. On the same date appears the certificate of the notary public, whose
commission extended to January 1, 1905, wherein it is recorded that personally appeared
before him the married couple Maghirang and Pili, whom he knew as the executors of the
foregoing document and they ratified it as executed of their own free will, the husband, as well
as the purchaser, exhibiting his cedula, but not the woman because she was exempt from
payment thereof.

It likewise appears from the evidence adduced in this case that said married couple Maghirang
and Pili were the owners of said land, which they possessed and had the usufruct of and for
which they paid to the Government the corresponding land tax; that on January 31, 1904, said
married couple sold a portion of said land with 150 coconut trees to Esteban Reyes and his wife
Elisea Maghirang for 250 pesos, according to Exhibit B, and since then Reyes has possessed
26

and had the usufruct of the portion of land he had bought, and made declaration before the
land-tax board in May, 1906, as of land belonging to him, according to Exhibit E, which sale was
ratified by the vendors in favor of Reyes before the notary Segundo Abrera on May 2, 1908,
Exhibit C.

On May 2, 1908, the married couple Aniceto Maghirang and Isabel Pili likewise sold the
remaining portion of the said land with its coconut trees to Melecio Briñas for the sum of 650
pesos, before the notary public Segundo Abrera, according to Exhibit J, and since then Briñas
has possessed and had the usufruct of the land purchased, although in the tax list the tract
continues in the name of the vendor, who had made declaration in May, 1906, Exhibit K, and
had been paying the tax from 1903, Exhibit P, although Reyes, the owner of one part which he
had bought in 1904, appears to have paid the tax up to 1910, Exhibit F.

Although Esteban Reyes was in lawful possession of a portion of the land he had purchased, on
February 2, 1909, Nicasio Capule filed a complaint before the justice of the peace of San Pablo
accusing him of the theft of coconuts from the land he possessed and of which Reyes was the
owner; but the court dismissed the case for lack of evidence of the right alleged by the plaintiff,
with the costs against him, Exhibit D, page 17 of the record.

On April 16, 1909, Nicasio Capule, claiming to be the owner of the coconut land situated in
Dolores, the subject matter of an alleged sale, accused the married couple Maghirang and Pili
and Eusebio Soriano of theft, and in spite of the fact that he exhibited the document marked
"Exhibit A", setting forth the said sale made in his favor by that married couple, the justice of the
peace acquitted the accused of the crime of theft, Exhibit 1, page 67; and on June 4, 1909,
according to Exhibit I, page 107 of said record, Aniceto Maghirang and Guadalupe Javier were
also acquitted of the crime of coercion with which they were accused.

On October 21, 1909, Nicasio Capule and his wife were accused by Nemesio Briñas of the
crime of theft in the justice of the peace court of San Pablo and upon trial were sentenced to two
months of arresto mayor and payment of P14.25 with the costs, from which judgment they
appealed to the Court of First Instance, page 54 of the record, although at the request of the
fiscal the case was dismissed, because the action exercised by the complainant had to be
settled in a civil suit.

Although Capule presented, in some of the said hearings before the justice of the peace court of
San Pablo, the deed of sale, Exhibit A, for the purpose of proving that he was the owner of the
land in question, yet in the judgments rendered therein said instrument was held to be false and
no probative value whatever was attached to it.

Aniceto Maghirang denies that he sold the said land to Nicasio Capule or that he executed in his
favor any document of sale, stating that he had conferred a power of attorney upon him so that
he might represent himself and his wife, who later died, in a suit they had with Maximino Reyes,
because of the absolute confidence they had in the defendant, just as it was the latter himself
who drew up the document that was later signed in his stead by Eulogio Ortega, because he
could not read or write; but he denied that he or his wife had ever been in the house of the
notary Inocente Martinez to execute or ratify any document or that he and his wife Isabel Pili,
when she was alive, had told the defendant Capule that they wished to sell the said land and
that he had offered to buy it.
27

Nicasio Capule avers that the said document, Exhibit A, was drawn up in his own house in the
presence of the married couple, Aniceto Maghirang and Isabel Pili, for whom he had to translate
the contents of the document into Tagalog, and they then signified their agreement; and as they
could not sign, Eulogio Ortega and Doroteo Guia did so in their stead, and at that time Jacinto
Peñaflor and Jorge Tolentino, also signed it as witnesses; and that on the afternoon of that day
the married couple Maghirang and Pili appeared in the house of the notary Martinez and ratified
before him the said document in the presence of the witness testifying; all of which Aniceto
Maghirang denies, asserting that he did not execute said document, or ratify it before the notary
Martinez, for he had never been in the latter's house nor had he ever seen the document,
Exhibit `A. His wife, Isabel Pili, did not testify, for she had died in the meantime.

Let us examine the statements of the persons who appear to have signed the document,
impugned as false, in place of the married couple executing it, and one of the witnesses to the
execution of the said document, for it does not appear that the other, Jorge Tolentino, testified.

Upon making his statement and after having been informed of the contents of the document,
Exhibit A, Doroteo Guia denied that he had been present in the drawing up and execution
thereof, or that he had ever known that the married couple Aniceto Maghirang and Isabel Pili
had sold any land to the defendant, Nicasio Capule, although he remembered that on a certain
occasion said married couple had asked him to sign for them in the defendant Capules's house
a document of power of attorney made out in Capule's favor, so that the latter might represent
them in a suit they were prosecuting against Maximino Reyes, and believing that it was in fact a
question of a power of attorney, as they had assured him, went to the defendant's house and
without informing himself of the contents of the document that Capule spread out on a table,
signed it, but he denies that Eulogio Ortega, Jacinto Peñaflor, and Jorge Tolentino with whom
he was acquainted, were present in that house.

Eulogio Ortega likewise denied that he signed any document of sale of land or that he had ever
been informed that the married couple Maghirang and Pili had sold any land to the defendant
Nicasio Capule, although he remembers that one day about seven years ago Nicasio Capule
and Isabel Pili came to his house and the latter told him that as she did not know how to write
she begged him to do the favor of signing in her stead a power of attorney, whereupon the
defendant told him that as he did not know Spanish the contents of said document would be
translated to him so that he might understand them, stating at the same time that a power of
attorney was conferred upon him, Capule, by Aniceto Maghirang and Isabel Pili in the suit
against Maximino Reyes, the attorney thus authorized responding for its result, without the
necessity for the intervention of the married couple granting the power; and that after being
informed of the of the contents of the document presented to him he signed it, and he asserts
that said document is Exhibit A; that on that occasion Doroteo Guia, Jacinto Peñaflor, and Jorge
Tolentino were not present; and that one Sunday, when he was passing a tienda with Jorge
Tolentino and Domingo Capuno, the defendant Capule, who was there, called to him and after
offering them wine told him that they should understand each other for that document which he,
Capule, had said was a power of attorney was really a deed of sale executed in his favor by
Aniceto Maghirang and in case of winning the suit Capule would give him P200.

Jacinto Peñaflor, who figures in said document as a witness, having the same before him,
stated that the signature which appears therein with his name and surname looks like his, but
he could not assert definitely whether such signature was his or not, for he does not remember
having signed such a document in the presence of the married couple Maghirang and Pili and
the individuals Eulogio Ortega, Doroteo Guia, and Jorge Tolentino, setting forth the sale of a
28

tract of lands to Nicasio Capule, and that he did not recognize the signatures of Doroteo Guia
and Eulogio Ortega.

From the result of taking these statements and the conduct of the accused together, it is
logically inferred that after preparing the document, Exhibit A, he tried by all the means he
thought expedient to assert his ownership of the land which, under an alleged title of acquisition,
had come to be his property and to that end he tried to dispose of the products of the young
trees that there were on the tract, even daring to trample upon the legitimate rights of its original
owners and of the new ones who had later acquired it, up to the point of accusing them as
perpetrators of crimes directed against his pretended and false right of ownership, which he
claimed to have acquired through the said false instrument.

Believing that with the document, Exhibit A, he could get the courts to override the true owners
of the land, which he pretended its original owners had sold, in the various complaints he
presented before the justice of the peace of San Pablo against the offended alleged owners and
one of the new owners who acquired part of the land in question, as well as when he was
accused of theft by the owner of the remaining part of the tract, the defendant dared to assert
that he was the owner thereof and of the coconut trees growing thereon, even to the point of
exhibiting said false instrument, but in spite of his allegations and his documentary evidence the
persons accused by him were acquitted, while Capule himself was convicted of theft of
coconuts on a complaint of one of the owners of said land. The notary, Inocente Martinez, was
not examined, for he had died in the meantime.

It therefore appears to be plainly proven that the crime of falsification of a document has been
committed, and while it may not be public still it is of an official or notarial character, provided for
and penalized in articles 300 and 301, because the defendant executed upon said notarial
document of an official character acts constituting falsification, by counterfeiting therein the
intervention of the married couple Aniceto Maghirang and Isabel Pili, to whom he ascribed
statements different from what they had made to him and by perverting the truth in the narration
of facts, getting two persons to sign in the name of said married couple through deceit, after
giving them to understand that the document contained a commission or power of attorney,
when in fact it was a deed of sale of a piece of land, the legitimate owners whereof had never
intended or consented to its alienation.

None of the persons who appear to have signed said document and seem to have been present
at its execution were informed of its true contents, because they all confided with the greatest
good faith in the false and deceitful statements of the defendant, believing what he said to the
effect that said instrument was a commission voluntarily conferred upon him by the couple
executing it, who never intended to execute any document of sale of their property to the
defendant, who went to the extreme of getting a notary to certify to its ratification before him,
made apparently by the alleged vendors in the contents of the said false document.

The fact that the married couple Maghirang and Pili did not know how to read and write certainly
reveals great ignorance and lack of culture in them, but when they got to be landowners and
acquired property of some value, they cannot be absolutely denied the ability to distinguish a
deed of sale from a power of attorney, because they have demonstrated well enough that they
understood their purpose to be that the defendant should represent them in a suit pending in a
court and that they had never intended or executed any fact for the alienation of a tract of land
belonging to them in favor of the defendant, and it is therefore unquestionable that he took
advantage of the opportunity when he was to have executed a document or instrument of power
29

of attorney, which the married couple desired, to draw up maliciously and deceitfully a deed of
sale in his favor, deceiving the alleged vendors and the two persons who signed for them and
making them believe that the document executed was a power of attorney or commission, when
it fact it was a deed of sale and is the Exhibit A, wherein, if he did not forge the signatures of the
two witnesses Peñaflor and Tolentino, he must have obtained them in an equally deceitful way.

If it were true that the vendors had really alienated their coconut land to the defendant, their
continuing to pay the land tax is unexplained. In January, 1904, a part of said land with its
coconut trees was sold to Esteban Reyes and in May, 1908, the rest of the tract was sold to
Melecio Briñas. Persons so simple, even ignorant and of little culture, as the offended parties,
would not have dared to sell successively to two of their neighbors in two portions the said land,
if it had been in fact already sold to the defendant Capule; while the latter, by profession a clerk
and acting as such for the notary Martinez, who made sworn statements before the assessment
board and paid the land tax for the year 1906, never complied with these obligations of
landowner in connection with the land which, according to Exhibit A, he had acquired on
September 2, 1903, yet on the other hand it does not appear why he did not enter in possession
of the tract if he had really bought it in September of that year, which indicates that although he
dared to draw up a false document with the connivance of the notary, his boldness did not
prevail to the extent of depriving in a frank and open manner its legitimate owners of the
possession of the land by appealing to the courts to assert his right, provided he was sure that it
was legitimate.

Although under article 535 of the Penal Code those who commit fraud by causing another to
subscribe a document by the use of deceit, as the defendant has done, incur, according to
paragraph 7 thereof, the penalties set forth in the preceding article; still when as in the present
case the crime of falsification was committed for the purpose of getting a piece of real property,
which is the profit its perpetrator sought to obtain, he is regarded as duly punished as guilty of
falsification of a notarial document, in which crime fraud or estafa is held to be included, with the
penalties indicated in said article 301 of the Code.

The defendant pleaded not guilty and alleged that the married couple Maghirang and Pili had
positively sold him the land to which Exhibit A refers for the sum of P500 which he forthwith
delivered to them, Eulogio Ortega and Doroteo Guia and two other eyewitnesses to the
execution of the document having signed the instrument which he drew up in his house in the
presence of all of them, and that it was he who drew up the certificate of ratification authorized
by the notary and interpreted the contents of the document with its ratification before the notary
to the vendors, who really did not know or understand Spanish, on the afternoon of the same
date on which said instrument was drawn up; further stating that immediately afterwards he took
possession, in the same month of September, 1903, of the land he had bought and from that
time on picked the fruit the coconut trees produced, although he was disturbed in his
possession by the vendors themselves and the neighbors Esteban Reyes and Melecio Briñas;
that it was true that he had not in 1906 made any declaration of ownership of said land, as is
ordered for the purposes of assessment, but he paid the land tax for that time by delivering the
money to Isabel Pili, although he did not know whether the receipts had been made out in her
name. The defendant, who is a person of more education and knowledge than the offended
parties, even alleged other defenses which were in like manner as those stated completely
unsupported.

He tried to prove that in January, 1906, he sold said land under pacto de retro for two years to
Andres Borja, who possessed it during those two years, although the alleged purchaser Borja
30

said that only a private document was made out for the sale nor did he require of the defendant
any previous document of ownership to evidence the defendant's right to the land sold, which
private document was not exhibited in the case and no proof was adduced to show Borja's
possession of the land sold to him; and what is stranger still is that in the declaration of
ownership of the land, Exhibit K, page 116, presented by the offended party Aniceto Maghirang
in May of the same year, 1906, the alleged Andres Borja appears to have signed as a witness,
attesting that the land was Aniceto Maghirang's and thus Andres Borja signs at page 87 of his
statement, in spite of the alleged previous purchase, nor does it appear that the defendant
redeemed the tract.

An attempt was also made to prove that in November, 1908, the defendant Capule sold the
same land absolutely to Marcelino Capiriña with another tract, which is set forth in the
document, Exhibit B, ratified before a notary, for the sum of P2,500, and the purchaser forthwith
took possession of the lands sold. If this absolute sale is true it is incomprehensible why the
purchaser Capiriña did not ever attempt to enter into possession of the land in question sold to
him in November, 1908, on which date the original owners, Maghirang and Pili, had already got
rid of said land, having sold a part thereof to Esteban Reyes on January 31, 1904, and the
remainder on May 2, 1908, to Melecio Briñas. These new owners took possession from that
time on of the respective portions of the land they had acquired, nor does it all appear in the
case that the purchaser Capiriña asked the alleged vendor to make delivery of the land sold to
him, or that he ever appealed in any way to the courts. Moreover, in presenting his complaints
years later against the married couple Maghirang and Pili and others, the defendant Capule did
so in the capacity of owner of that very land, so it is not true that he had previously sold it to the
said Capiriña.

These two alleged sales to Borja and Capiriña were ways and means chosen by the defendant
to see if he could effectually deprive the married couple Maghirang and Pili of their right to the
land in question, since at that time he did not yet dare to exhibit the false instrument he had
maliciously and fraudulently drawn up and he did not secure from said document the results he
expected and intended to become the owner of the land by means of a false instrument.

Likewise the alleged transaction that he says Eulogio Ortega proposed to him to allow
rescission of the alleged sale in the document, Exhibit A, through return of the price by the
vendors, a transaction proposed, according to the accused and his witness Silvestre Capiriña,
one day in the month of July, 1909, is in every way unlikely to have been made in the name of
Aniceto Maghirang, because the land had already been sold some years before to Esteban
Reyes and Melecio Briñas, and therefore the offended party could not get Ortega to talk with the
defendant to propose said transaction for the return of a piece of land that had never been sold
to him but to the said Reyes and Briñas in 1904 and 1908, and in 1909 he no longer had any
interest or right in the land in question, aside from the fact that he has not proved that the
offended party Maghirang ever intrusted such a commission to Eulogio Ortega or authorized
him to make the proposition. Eulogio Ortega denied having interviewed the defendant Capule
on behalf of Aniceto Maghirang. Such allegations are nothing more than ingenious quibbles and
tricks invented by the defendant's counsel to save him from the punishment he deserves as the
proven perpetrator of the crime of falsification.

Starting from the hypothesis that the defendant really obtained in a fraudulent and deceitful
manner the consent of the married couple Maghirang and Pili to the execution of said false
instrument, his counsel argues that still he was not guilty of the crime of falsification of a public
31

document, in accordance with the finding of this court in the decision of the case against
Geronimo Milla (4 Phil. Rep., 391), wherein the following principle was laid down:

The fact that one's consent to a contract may be obtained by mistake, violence,
intimidation, or fraud does not make the contract a false contract, and therefore a person
who has obtained such contract by those means, whatever be the crime he may be
guilty of, is not guilty of the crime of falsification either of a public or of a private
document.

This was the question of a contract wherein the offended parties gave their consent to the
execution of the document that was later impugned as false, although this consent was obtained
through intimidation which the defendants in that case, Juan Cardona and Geronimo Milla, had
used upon them, and for this reason the court, in view of the fact that the contracting parties
consented to the terms of the instrument, could not find that there was falsification in the
statement of the facts, according to article 300 of the Penal Code, merely because the consent
had been secured through intimidation.

As has been seen, there was no contract in the present case, nor any consent to the contract
pretended to have been stipulated in the instrument, Exhibit A, wherein the defendant entered
statements ascribed to the alleged vendors, who proposed and intended to execute an
instrument of commission or power of attorney in favor of the defendant, but not a deed of sale,
as in bad faith and with evident perverseness the defendant did, perverting the truth in the
statement of facts and ascribing to the offended parties statements different from those they
made to him in the counterfeited document, since the statements set forth therein were not
characteristic and constitutive of an instrument of power of attorney in his favor in order that he
might represent them in a suit against Maximino Reyes.

Finally, the decision of the Supreme Court of the United States in the case of Weems vs. U.S.
(217 U.S., 349) is vainly invoked, for Nicasio Capule is not a public officer and, moreover, as he
is accused of the crime of falsification of a notarial document of official character equivalent to a
public document the principle laid down in said decision is totally inapplicable in his favor. The
defendant Capule does not come within the purview of article 300 of the Penal Code, but of 301,
which fixes the penalty, not of cadena temporal but of presidio mayor; further keeping in mind
that the act of falsification of a public document in itself constitutes a crime, morally and legally
punishable, even though to date the penal law with respect to falsification of a public document
committed by public officers, in lieu of said article 300 of the code, has not yet been
promulgated; but article 301, applicable to the present case, has not been repealed and
subsists in all its force.

The concurrence of neither extenuating nor aggravating circumstances can be found in the
commission of the crime, and therefore the penalty fixed in said article 301 of the code must be
imposed in its medium degree.

For these reasons, whereby the errors assigned to the judgment appealed from are found to be
refuted, we hold that it should be affirmed; provided, however, that Nicasio Capule be
sentenced to the penalty of eight years and one day of presidio mayor, to the accessories fixed
in article 57 of the code, to the payment of a fine of 5,000 pesetas, without subsidiary
imprisonment in case of insolvency, according to article 51; and to the costs in the case. So
ordered.
32

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 8025 September 17, 1913

THE UNITED STATES, plaintiff-appellee,

vs.
ALEJANDRO R. MATEO, defendant-appellant.

William A. Kincaid, Thomas L. Hartigan, and Jose Robles Lahesa for appellant.
Attorney-General Villamor for appellee.

MORELAND, J.:

This is an appeal from a judgment of the Court of First Instance of Nueva Ecija, convicting the
accused of a violation of section 55 of Act No. 1189, and sentencing him to one year in prison
and to pay a fine of P2,000 with subsidiary imprisonment in case of insolvency, and to pay the
costs of the trial.

The defendant, Alejandro R. Mateo, is a priest of the Roman Catholic Church and was stationed
in the town of Aliaga in the Province of Nueva Ecija during the month of November, 1911, and
had been for some months prior thereto. On the 27th day of October, 1911, he was called on in
the performance of his duties to execute an affidavit. Being asked to produce his personal
cedula for the current year, a necessary prerequisite under the law for a legal and valid affidavit,
he, in ignorance, presented one not only for 1911, but also for 1910. Upon examination of the
cedula for the latter year it was observed by the justice that the age therein had been changed,
the figures "23" having been changed to "25." A complaint was filed charging the accused with
falsification of the cedula for 1910, in violation of section 55 of Act No. 1189.
33

The testimony of the prosecution tends to show that the accused went to the office of the
municipal treasurer to cash a check. The check not having been indorsed by a person known to
the municipal treasurer, the latter refused to cash it until the accused made an affidavit that the
check belonged to him and that he was entitled to the sum named therein. Thereupon the
accused went to the justice of the peace of the village to execute the affidavit thus required. The
justice, as a prerequisite to administering the oath, asked the affiant to exhibit his cedula for the
current year. The accused, being ignorant of what the law required, produced two cedulas, one
for 1910 and one for 1911. On examination of the cedula for the year 1910 the change in the
age of the accused was, as we have said, observed by the justice, who thereupon went to the
office of the municipal treasurer to examine the stubs from which cedulas had been torn. A
comparison of the cedulas with the stubs confirmed his observation that the age in said cedulas
had been changed as already detailed.

The defense asserts, and the defendant testified, that, prior to going to the justice of the peace
to make the affidavit referred to, he had never examined or even read the cedulas, or any other
cedulas for that matter, and was, for that reason, ignorant of their contents; that he had never
had occasion to use a cedula before, and, deeming that his duty was fully performed when he
purchased those mentioned he had laid them away without examination and without thought.
Being asked to produce the cedula for 1911, he went home and got not only the cedula for 1911
but also that for 1910. The fact that he had been called upon to present a cedula aroused his
curiosity as to the contents of those in his possession and he read them. To his surprise he
found that the ages stated therein were incorrect. Being young — he having been out of college
little more than a year — and ignorant of the law relating to documents of that kind, he was
seized with fear as to the consequences which might follow if he exhibited to a public officer
cedulas in which his age was stated incorrectly. He, therefore, went to the municipal treasurer,
from whom he had obtained them, for the purpose of having them corrected before presenting
them to the justice. He asserts that, on showing them to the municipal treasurer, he frankly
stated to him that he himself had changed them in order to make them correspond with his
actual age, and asked him for aid in correcting them, and that official then and there consented
to and confirmed the change. He declares, further, that he had no intention of committing any
wrong; that he in no sense intended to defraud or prejudice the municipality or the Government
by his act; that he obtained no profit or benefit therefrom of any kind, and that he did not know
that what he had done was illegal or unlawful.

It appears from the evidence of the defense, which seems to be uncontradicted, that there was
a good deal of friction between the accused and the municipal officers who presented the
complaint against him and upon whose testimony he was convicted. Several suits of one kind or
another had been instituted against him by these officials or through their efforts or influence. In
fact, the complaint against the accused seems to have been the immediate result of an angry
reply made by him to a question put by the municipal treasurer. The latter in his testimony says:

I asked him who had changed the number in the cedula and he answered me in a threatening
voice that I had nothing whatever to do with that because he said that he had purchased the
cedula and could do what he killed with it. Upon seeing this, I went at once to the court for the
purpose of denouncing him for the falsification of a document.

It is the claim put forward by the prosecution that a loss to the Government is not necessary to
maintain the action; that no criminal intent is required; that gain or purpose of gain on the part of
the accused is not necessary to violate the Act. It is maintained further that the Act is violated
whenever a person makes any change whatever in a cedula, utterly regardless of whether the
34

Government losses or the accused gains, or whether the intent or purpose is innocent or
otherwise; that the object of the law is to preserve intact the certificates which the Government
issues and to prevent them from being changed by any person for any purpose, whether the
change be material or immaterial, whether it corrects the document or falsifies it, whether the
document, after change, is capable of effecting a fraud or deception or not.

The information in this case reads as follows:

The undersigned, amending the information, accuses Alejandro R. Mateo of a violation

of section 55 of the Internal Revenue Law, committed as follows:

On or about the month of October of the year 1911, said accused maliciously and
criminally altered the age appearing in his personal cedula for the year 1910, putting the
age of 25 years in place of 23, and retained in his possession such altered cedula for the
purpose of using the same, thereby defrauding the internal revenues.

Giving the information the broadest interpretation possible, it charges, first, that the accused
altered the age in the 1910 cedula, and second, that he kept it in his possession with intent to
use it, the phrase "thereby defrauding the internal revenues" being permitted to modify both
clauses, namely, that which alleges the alteration of the cedula and that which alleges his
retaining it in his possession with intent of future use.

While, under certain circumstances, it may not be necessary, in order to establish the charge of
falsifying a cedula, to show a pecuniary loss to the Government, nevertheless, under the facts
and circumstances of this case, we think we might fairly hold that the fraud charged, being one
which relates to the revenues of the Government, and therefore to a pecuniary or financial
matter, such loss must be shown. But, not to restrict too narrowly the consideration of this case,
we will assume that the prosecution can be maintained without showing a financial loss to the
Government.

In the discussion of this case we take it that it is undisputed that the accused stated his correct
age in his testimony on the trial, and, accordingly, that age in the altered cedula was his correct
age; that, therefore, all that he did was to make the cedula speak the truth. It is also
uncontradicted that he voluntarily stated to the officials to whom he presented the cedula the he
had changed it and that he did so for the purpose of making it state his correct age; that he
made no effort to conceal what he had done; that he maintained at the time that he had no
intention to injure or defraud, and that he made the change in the interest of truth; that he set
forth fully the reasons which moved him to make the change, all of which were, upon their face,
innocent.

The foundation of the judgment of conviction, given by the court, is as follows:

From the evidence presented the court finds that on the 11th of January, 1910, the
municipal treasurer of the municipality of Baliuag, Province of Bulacan, issued in favor of
the defendant, Alejandro R. Mateo, personal cedula No. F-1208348 upon receiving the
sum of P2; that in order to obtain said personal cedula the accused presented to the
municipal treasurer his personal cedula for the year 1909 in which cedula the age
appeared to be 22, and for which reason said municipal treasurer put in the said cedula
the age of 23 years; that in the month of October, 1911, in the municipality of Aliaga the
accused changed the age in said cedula, scratching out the figure 3 in the age 23 and
35

putting in the place thereof the figure 5, making his age appear 25 instead of 23; that
after having altered the cedula in the manner stated the accused presented said cedula
to the justice of the peace of Aliaga and to the municipal treasurer of said municipality for
the purpose of swearing to an affidavit relating to the cashing of a check; that by reason
of said change the accused defrauded the internal revenues of the sum of P4, or more,
in the sense that, according to the law, he should have begun payment of his personal
cedula tax in the eighteenth year of his age, and, if it is true that he was 25 years of age
in the year 1910 as he declared in this case, he ought to have paid the cedula tax for
eight years, when, in reality, he had paid it for only six; that if the father of the accused
had made a mistake as to the time when he ought to have begun to purchase the
personal cedula for the accused, as the accused himself declares, this mistake ought to
have been corrected and he should have settled the matter with the municipal treasurer
by the payment to him of the tax corresponding to the two years, together with the
corresponding fine; that having altered the cedula in the month of October, 1911, the
accused presented said cedula to the justice of the peace of Aliaga and to the municipal
treasurer of said municipality.

From this quotation it is clear that the court inferred that the Government had been defrauded of
P4. The basis of that inference is that, according to the admitted age of the defendant at the
time the cedula was changed, he should have paid the tax for eight years, whereas he had
actually paid it for only six. It seems to us that there is substantially no evidence in the case from
which the inference can properly be drawn that the accused had paid the tax for only six years.
There is no direct proof to that effect. He himself declared positively, more than once, that he, or
his father, began paying the cedula tax when he was 18 years of age and that it had been paid
every year from that time forward. The Government seeks to overcome that evidence by
inferences from the fact that the cedula was changed and that the age stated therein before the
change was incorrected — in other words, that there had been, somewhere and sometime, a
misrepresentation by the accused as to his age. There was no reason why the Government
should have left that fact to inference, if it was a material fact. If the defendant had not paid his
tax consistently from the time he was 18 years of age, it could easily have been proved by the
production of the cedula stubs showing when the defendant began to pay, the age that
appeared in the first cedula, and all the cedulas for that matter, and the number of years that he
had actually paid. With evidence, clear and undisputable, easily at hand and capable of being
presented, the Government, in a criminal case, ought not to leave to inference a fact which it
seems to regard as so material. Under all the facts and circumstances of this case, and
particularly in view of the failure of the Government to present the evidence in its possession
upon that subject, we would, if we regarded it material, accept as true, according to the weight
of the evidence, the declaration of the defendant that he had paid all of the cedula taxes to
which the Government was entitled.

We do not, however, in this case, give much importance to this contention, even if true. We
must observe that the information charges that the defendant, by the act of changing the cedula,
defrauded the Government; and that the retained said altered cedula in his possession with
intent to use it for perpetration of other frauds. The issue in the case, then, is, did the act of
altering the cedula and retaining it in his possession after the alteration actually defraud the
Government, or could it, in any possible way, defraud the Government? The question is not, did
the defendant misrepresent his age at some time prior to the alteration of the cedula and
thereby, at that time, defraud the Government, but is, rather, did this particular act of alteration
deprive the Government, at that time, of any part of its revenues, or could it do so in future? Or
36

did that act prejudice the Government in any possible way or benefit the accused in any
possible was? In considering this question we must note:

In the first place, the cedula, with he alteration of which the defendant stands charged, was the
cedula for 1910, and said cedula was altered, in the month of October, 1911. According to the
evidence, this cedula was issued to the defendant on the 11th day of January, 1910. It therefore
expired on the 31st day of December of the same year. That being so, the only cedula that had
any force or effect in October, 1911, when this 1910 cedula was altered, was the cedula for the
year 1911. The 1910 cedula was, therefore, without force or effect on the date on which this
crime is alleged to have been committed. The cedula being thus dead in law for all effects and
purposes, was it possible to defraud the revenue by any alteration as to age made in October,
1911? Or was it possible for the accused, by such alteration, to obtain any of the privileges or
immunities defined if there had been no alteration? While it is clear that it might have been
altered as to the year, for example, thereby defrauding the Government of the tax for one year,
still it seems to us impossible to have defrauded the revenues by merely altering the age. The
tax had already been paid for the year to which that cedula referred. That cedula, altered or
unaltered as to age, could not have been used for any other year. Would that cedula, altered or
unaltered as to age, have served the accused if he had presented it to the justice of the peace
in October, 1911? Clearly, no. Only 1911 cedula would have availed him. Could he have used
the 1910 cedula, altered or unaltered as to age, for any purpose after the expiration of 1910?
Clearly, no. No official would have accepted it for a moment for any purpose whatever, altered
or unaltered. How, then, did the act of the defendant defraud the revenues? Did the
Government have less money in its coffers after the act was performed than it did before?
Would it have had more money in its Treasury if the act had not been performed? Did the act
prevent it from receiving a single centavo which it would have received otherwise? Would the
act diminish its revenues the day or the month or the year after? Would not the Government
have been in exactly the same position if the act had never been performed? The fundamental
fact is that the cedula, after it was changed, was incapable of being used to commit a fraud. It is
true that, if he had placed a false age in the cedula, he might thereby, by using that as the basis
for the issuance of succeeding cedulas, as a matter of record, reach he age of exemption (60
years) quicker than he really ought. But it is undisputed that he did not put a false age in the
cedula, and, even if he did, the assumption that he did so to save P4 thirty-five years later is so
remote that we think it negligible in this case. Precisely these same reasons show that the
Government was not injured or the accused benefited in any other way by the act complained
of.

The only possible theory upon which it could be urged that the defendant committed any crime
at all, and that is neither charged nor proved, would be that, at the outset he or his father had
misrepresented his age and, instead of beginning to pay the tax when he was eighteen, he had,
by misrepresentation, deferred payment until he had reached the age of twenty; that, having
misrepresented his age at the outset, it was necessary to continue the misrepresentation
because any change in the age would be immediately discovered by the official who issued the
cedula, who is required to refer to the cedula, or the record, of the previous year in issuing one
for the current year; that, after the lapse of six or eight years, when the defendant was called
upon for the first time to produce his cedula for the inspection of a public official, fearing that his
former misrepresentation would be discovered, he thereupon, in order to cover up his fraud,
changed the cedula to make it correspond to his real age. But even if this theory be held to be
tenable, would the act of altering the cedula be more than an attempt to hide the evidence of a
crime committed long since?
37

In the second place, we do not think that the defendant committed any crime in changing his
age. He simply made the cedula speak the truth. What harm could ensue to the Government by
making the data in the cedula conform to the facts? It is the undisputed evidence in the case
that the cedula, before it was changed, did not contain the correct age of the accused, and that
the age, as changed, was the correct age. How can the Government be injured by changing a
cedula so that the correct age may appear therein? When done honestly and with no evil intent
and when no gain or advantage results or could possibly result therefrom, it is not forgery (and
falsification is but an extension of the crime of forgery as known in America) under Spanish or
American authority to make a document of this kind speak the truth. While such a change by
one party without the consent of the other is always something to be strongly discouraged,
nevertheless, it is not criminal and cannot, therefore, be made the basis of a criminal
prosecution.

The crime with which the defendant in this case stands charged is generally spoken of as the
falsification of a cedula. The very word, falsification, gives a clear insight into the nature of the
crime and the act which constitutes it. The change made by the accused in this case was not a
falsification; it was a correction. It did not make the document speak a lie; it made it speak the
truth. It did not deceive; it prevented deception. Nor was it an alteration of the document in the
sense in which the word is ordinarily used. Generally, the word alteration has inherent in it the
idea of deception — of making the instrument speak something which the parties did not intend
it to speak. To be an alteration in violation of law it must be one "which causes it (the
instrument) to speak a language different in legal effect from that which it originally spake."

In the third place, and this is but an addition to the observations just made, the instrument was
not changed in any material sense. Before the crime of falsification of a cedula is complete, it is
necessary that the instrument be altered in some material respect. If the cedula could produce
no other or different effect after the change than before no crime has been committed. It is the
capacity which the instrument has for mischief after the change which is the essence of the
crime. In a decision of the supreme court of Spain of the 23d of December, 1885, published in
the Gazette on the 21st of June, 1886, it appeared that one of the clerks in the office of the
district court, in spreading upon the record the proceedings taken for the appointment of a
guardian ad litem for certain minor children and the alteration of heirship in their favor, entered
such proceedings as of a date anterior to the date on which they were actually entered. The
clerk, for this act, was charged with the falsification of a public document, was convicted of
imprudencia temeraria in the Court of First Instance, and appealed to the supreme court of
Spain, which tribunal in reversing the judgment said in part:

Considering that even though in the falsification of public or official documents, whether
by public official 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, it must, nevertheless, be borne
in mind that the change in the public document must be such as to effect the integrity of
the same or to change the effect 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 of the Penal Code; considering that the fact that Don
Augustin Montes Moreno set out the proceedings as of a date prior to that on which they
actually occurred, and therefore incorrectly, the remaining part of the document being
true, . . . neither affected the integrity or truth of said proceedings nor affected in any
essential way their results or effects, it is necessary to conclude that the criminal intent
38

mentioned in the previous observation was absent; considering that, even though the
accused consciously attached incorrect dates to the proceedings, nevertheless that act
does not take on the character of a crime, and for that reason the Audiencia de Huelva
erred in convicting the accused . . . .

Viada (vol. 2, p. 435) says in reply to the question what is to be understood by the words
"essential element" of a cedula as used in article 321:

We are of the opinion that, there existing no other purpose in this class of documents than that
of assuring the identity of the individual and the surveillance of the administrative authorities,
only those elements should be considered essential in a cedula the alteration of which has for
its object the prevention of identification of the citizen for the escape of that surveillance which
the administrative authorities are to exercise in the interest of the public security. Moreover, it
was very proper that the authors of the Code should have limited the falsification of this class of
documents to the alteration of the essential elements of the document. Thanks to this prudent
and well understood limitation, which is not found in the Penal Code of our neighboring republic,
there could not arise in this country the situation recorded in French jurisprudence, wherein it
appears that a cura economo, who was journeying in company with a woman with whom he
was living in concubinage, sought to hide this identity as a cleric and falsified the passport or
cedula he was carrying, by substituting the word habitant for the word desservant. The trial court
acquitted him of the charge of having falsified a cedula, basing its decision upon the ground
that, in altering the passport or cedula, he did nothing more tan yield to a legitimate sense of
shame without injuring either public or private interest. The supreme court, however, set aside
the judgment of acquittal, in spite of the reasonableness and justice of the grounds upon which
it was based, holding that he was guilty of the falsification charged because article 153 of the
French Code punishes every alteration of a passport without distinction as to circumstances or
motives. Under the better wording of our article 321, our supreme court would undoubtedly have
affirmed the judgment of acquittal on the ground that the alteration in question could not be
regarded as essential, either for what it represented in itself or for the very evident motive that
prompted it, which was to avoid a public scandal."

We do not hold that the age contained in a cedula issued to a particular person is not an
essential element of the cedula. If the alteration in the age is of such a character as to hide the
identity of the person, or to assist in doing so, such alteration would be essential and the crime
of falsification would be complete. In the sense before us, however, the alteration in the age was
not sufficient to warrant us in holding that such an alteration was material with respect to the
identity of the person to whom it was issued or with regard to his ability thereby to obtain a
privilege or immunity which he could not have obtained if the change had not been made. (Sec.
125, Act No. 1189.)

The age would also be essential, and its alteration would be an essential alteration, if the
change were of such character and extent as to enable the one altering it to secure a privilege
or an immunity which he would not have enjoyed if the change had not been made. Such, for
example, would be a change in the age so as to make one a voter when he in fact was not. In
the case in hand, however, the alteration was not of that character. The change did not affect in
the remotest degree the privileges or immunities which the accused could enjoy under the
cedula. (Sec. 125.)

The judgment is reversed and the accused acquitted. Costs de oficio. So ordered.
39

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 103543 July 5, 1993

ASIA BREWERY, INC., petitioner,

vs.
THE HON. COURT OF APPEALS and SAN MIGUEL CORPORATION, respondents.

Abad Santos & Associates and Sycip, Salazar, Hernandez & Gatmaitan for petitioner.

Roco, Bunag, Kapunan Law Office for private respondent.

GRIÑO-AQUINO, J.:

On September 15, 1988, San Miguel Corporation (SMC) filed a complaint against Asia Brewery
Inc. (ABI) for infringement of trademark and unfair competition on account of the latter's BEER
PALE PILSEN or BEER NA BEER product which has been competing with SMC's SAN
MIGUEL PALE PILSEN for a share of the local beer market. (San Miguel Corporation vs. Asia
Brewery Inc., Civ. Case. No. 56390, RTC Branch 166, Pasig, Metro Manila.).

On August 27, 1990, a decision was rendered by the trial Court, presided over by Judge Jesus
O. Bersamira, dismissing SMC's complaint because ABI "has not committed trademark
infringement or unfair competition against" SMC (p. 189, Rollo).

SMC appealed to the Court of Appeals (C.A.-G.R. CV No. 28104). On September 30, 1991, the
Court of Appeals (Sixth Division composed of Justice Jose C. Campos, Jr., chairman and
ponente, and Justices Venancio D. Aldecoa Jr. and Filemon H. Mendoza, as members)
reversed the trial court. The dispositive part of the decision reads as follows:

In the light of the foregoing analysis and under the plain language of the
applicable rule and principle on the matter, We find the defendant Asia Brewery
40

Incorporated GUILTY of infringement of trademark and unfair competition. The

decision of the trial court is hereby REVERSED, and a new judgment entered in
favor of the plaintiff and against the defendant as follows:

(1) The defendant Asia Brewery Inc. its officers, agents, servants and employees
are hereby permanently enjoined and restrained from manufacturing, putting up,
selling, advertising, offering or announcing for sale, or supplying Beer Pale
Pilsen, or any similar preparation, manufacture or beer in bottles and under
labels substantially identical with or like the said bottles and labels of plaintiff San
Miguel Corporation employed for that purpose, or substantially identical with or
like the bottles and labels now employed by the defendant for that purpose, or in
bottles or under labels which are calculated to deceive purchasers and
consumers into the belief that the beer is the product of the plaintiff or which will
enable others to substitute, sell or palm off the said beer of the defendant as and
for the beer of the plaintiff-complainant.

(2) The defendant Asia Brewery Inc. is hereby ordered to render an accounting
and pay the San Miguel Corporation double any and all the payments derived by
defendant from operations of its business and the sale of goods bearing the mark
"Beer Pale Pilsen" estimated at approximately Five Million Pesos
(P5,000,000.00); to recall all its products bearing the mark "Beer Pale Pilsen"
from its retailers and deliver these as well as all labels, signs, prints, packages,
wrappers, receptacles and advertisements bearing the infringing mark and all
plates, molds, materials and other means of making the same to the Court
authorized to execute this judgment for destruction.

(3) The defendant is hereby ordered to pay plaintiff the sum of Two Million Pesos
(P2,000,000.00) as moral damages and Half a Million Pesos (P5,000,000.00) by
way of exemplary damages.

(4) The defendant is further ordered to pay the plaintiff attorney's fees in the
amount of P250,000.00 plus costs to this suit. (p. 90, Rollo.)

Upon a motion for reconsideration filed by ABI, the above dispositive part of the decision, was
modified by the separate opinions of the Special Sixth Division 1 so that it should read thus:

In the light of the foregoing analysis and under the plain language of the
applicable rule and principle on the matter, We find the defendant Asia Brewery
Incorporated GUILTY of infringement of trademark and unfair competition. The
decision of the trial court is hereby REVERSED, and a new judgment entered in
favor of the plaintiff and against the defendant as follows:

(1) The defendant Asia Brewery Inc., its officers, agents, servants and
employees are hereby permanently enjoined and restrained from manufacturing,
putting up, selling, advertising, offering or announcing for sale, or supplying Beer
Pale Pilsen, or any similar preparation, manufacture or beer in bottles and under
labels substantially identical with or like the said bottles and labels of plaintiff San
Miguel Corporation employed for that purpose, or substantially identical with or
like the bottles and labels now employed by the defendant for that purpose, or in
bottles or under labels which are calculated to deceive purchasers and
41

consumers into the belief that the beer if the product of the plaintiff or which will
enable others to substitute, sell or palm off the said beer of the defendant as and
for the beer of the plaintiff-complainant.

(2) The defendant Asia Brewery Inc. is hereby ordered 2 to recall all its products
bearing the mark Beer Pale Pilsen from its retailers and deliver these as well as
all labels, signs, prints, packages, wrappers, receptacles and advertisements
bearing the infringing mark and all plates, molds, materials and other means of
making the same to the Court authorized to execute this judgment for
destruction.

(3) The defendant is hereby ordered to pay plaintiff the sum of Two Million Pesos
(P2,000,000.00) as moral damages and Half a Million Pesos (P500,000.00) by
way of exemplary damages.

(4) The defendant is further ordered to pay the plaintiff attorney's fees in the
amount of P250,000.00 plus costs of this suit.

In due time, ABI appealed to this Court by a petition for certiorari under Rule 45 of the Rules of
Court. The lone issue in this appeal is whether ABI infringes SMC's trademark: San Miguel Pale
Pilsen with Rectangular Hops and Malt Design, and thereby commits unfair competition against
the latter. It is a factual issue (Phil. Nut Industry Inc. v. Standard Brands Inc., 65 SCRA 575) and
as a general rule, the findings of the Court of Appeals upon factual questions are conclusive and
ought not to be disturbed by us. However, there are exceptions to this general rule, and they
are:

(1) When the conclusion is grounded entirely on speculation, surmises and

conjectures;

(2) When the inference of the Court of Appeals from its findings of fact is
manifestly mistaken, absurd and impossible;

(3) Where there is grave abuse of discretion;

(4) When the judgment is based on a misapprehension of facts;

(5) When the appellate court, in making its findings, went beyond the issues of
the case, and the same are contrary to the admissions of both the appellant and
the appellee;

(6) When the findings of said court are contrary to those of the trial court;

(7) When the findings are without citation of specific evidence on which they are
based;

(8) When 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
42

(9) When the findings of facts of the Court of Appeals are premised on the
absence of evidence and are contradicted on record. (Reynolds Philippine
Corporation vs. Court of Appeals, 169 SCRA 220, 223 citing, Mendoza vs. Court
of Appeals, 156 SCRA 597; Manlapaz vs. Court of Appeals, 147 SCRA 238;
Sacay vs. Sandiganbayan, 142 SCRA 593, 609; Guita vs. CA, 139 SCRA 576;
Casanayan vs. Court of Appeals, 198 SCRA 333, 336; also Apex Investment and
Financing Corp. vs. IAC, 166 SCRA 458 [citing Tolentino vs. De Jesus, 56 SCRA
167; Carolina Industries, Inc. vs. CMS Stock Brokerage, Inc., 97 SCRA 734;
Manero vs. CA, 102 SCRA 817; and Moran, Jr. vs. CA, 133 SCRA 88].)

Under any of these exceptions, the Court has to review the evidence in order to arrive at the
correct findings based on the record (Roman Catholic Bishop of Malolos, Inc. vs. IAC, 191
SCRA 411, 420.) Where findings of the Court of Appeals and trial court are contrary to each
other, the Supreme Court may scrutinize the evidence on record. (Cruz vs. CA, 129 SCRA 222,
227.)

The present case is one of the exceptions because there is no concurrence between the trial
court and the Court of Appeals on the lone factual issue of whether ABI, by manufacturing and
selling its BEER PALE PILSEN in amber colored steinie bottles of 320 ml. capacity with a white
painted rectangular label has committed trademark infringement and unfair competition against
SMC.

Infringement of trademark is a form of unfair competition (Clarke vs. Manila Candy Co., 36 Phil.
100, 106). Sec. 22 of Republic Act No. 166, otherwise known as the Trademark Law, defines
what constitutes infringement:

Sec. 22. Infringement, what constitutes. — Any person who shall use, without the
consent of the registrant, any reproduction, counterfeit, copy or colorable
imitation of any registered mark or trade-name in connection with the sale,
offering for sale, or advertising of any goods, business or services on or in
connection with which such use is likely to cause confusion or mistake or to
deceive purchasers or others as to the source or origin of such goods or
services, or identity of such business; or reproduce, counterfeit, copy or colorably
imitate any such mark or trade-name and apply such reproduction, counterfeit,
copy, or colorable imitation to labels, signs, prints, packages, wrappers,
receptacles or advertisements intended to be used upon or in connection with
such goods, business or services, shall be liable to a civil action by the registrant
for any or all of the remedies herein provided. (Emphasis supplied.)

This definition implies that only registered trade marks, trade names and service marks are
protected against infringement or unauthorized use by another or others. The use of someone
else's registered trademark, trade name or service mark is unauthorized, hence, actionable, if it
is done "without the consent of the registrant." (Ibid.)

The registered trademark of SMC for its pale pilsen beer is:

San Miguel Pale Pilsen With Rectangular Hops and Malt Design. (Philippine
Bureau of Patents, Trademarks and Technology Transfer Trademark Certificate
of Registration No. 36103, dated 23 Oct. 1986,
(p. 174, Rollo.)
43

As described by the trial court in its decision (Page 177, Rollo):

. . . . a rectangular design [is] bordered by what appears to be minute grains

arranged in rows of three in which there appear in each corner hop designs. At
the top is a phrase written in small print "Reg. Phil. Pat. Off." and at the bottom
"Net Contents: 320 Ml." The dominant feature is the phrase "San Miguel" written
horizontally at the upper portion. Below are the words "Pale Pilsen" written
diagonally across the middle of the rectangular design. In between is a coat of
arms and the phrase "Expertly Brewed." The "S" in "San" and the "M" of "Miguel,"
"P" of "Pale" and "Pilsen" are written in Gothic letters with fine strokes of serifs,
the kind that first appeared in the 1780s in England and used for printing German
as distinguished from Roman and Italic. Below "Pale Pilsen" is the statement
"And Bottled by" (first line, "San Miguel Brewery" (second line), and "Philippines"
(third line). (p. 177, Rollo; Emphasis supplied.)

On the other hand, ABI's trademark, as described by the trial court, consists of:

. . . a rectangular design bordered by what appear to be buds of flowers with

leaves. The dominant feature is "Beer" written across the upper portion of the
rectangular design. The phrase "Pale Pilsen" appears immediately below in
smaller block letters. To the left is a hop design and to the right, written in small
prints, is the phrase "Net Contents 320 ml." Immediately below "Pale Pilsen" is
the statement written in three lines "Especially brewed and bottled by" (first line),
"Asia Brewery Incorporated" (second line), and "Philippines" (third line), (p. 177,
Rollo; Emphasis supplied.)

Does ABI's BEER PALE PILSEN label or "design" infringe upon SMC's SAN MIGUEL PALE
PILSEN WITH RECTANGULAR MALT AND HOPS DESIGN? The answer is "No."

Infringement is determined by the "test of dominancy" rather than by differences or variations in

the details of one trademark and of another. The rule was formulated in Co Tiong Sa vs.
Director of Patents, 95 Phil. 1, 4 (1954); reiterated in Lim Hoa vs. Director of Patents, 100 Phil.
214, 216-217 (1956), thus:

It has been consistently held that the question of infringement of a trademark is

to be determined by the test of dominancy. Similarity in size, form and color,
while relevant, is not conclusive. If the competing trademark contains the main or
essential or dominant features of another, and confusion and deception is likely
to result, infringement takes place. Duplication or imitation is not necessary; nor it
is necessary that the infringing label should suggest an effort to imitate. [C.
Neilman Brewing Co. vs. Independent Brewing Co., 191 F., 489, 495, citing
Eagle White Lead Co., vs. Pflugh (CC) 180 Fed. 579]. The question at issue in
cases of infringement of trademarks is whether the use of the marks involved
would be likely to cause confusion or mistakes in the mind of the public or
deceive purchasers. (Auburn Rubber Corporation vs. Honover Rubber Co., 107
F. 2d 588; . . . .) (Emphasis supplied.)

In Forbes, Munn & Co. (Ltd.) vs. Ang San To, 40 Phil. 272, 275, the test was similarity or
"resemblance between the two (trademarks) such as would be likely to cause the one mark to
be mistaken for the other. . . . [But] this is not such similitude as amounts to identity."
44

In Phil. Nut Industry Inc. vs. Standard Brands Inc., 65 SCRA 575, the court was more specific:
the test is "similarity in the dominant features of the trademarks."

What are the dominant features of the competing trademarks before us?

There is hardly any dispute that the dominant feature of SMC's trademark is the name of the
product: SAN MIGUEL PALE PILSEN, written in white Gothic letters with elaborate serifs at the
beginning and end of the letters "S" and "M" on an amber background across the upper portion
of the rectangular design.

On the other hand, the dominant feature of ABI's trademark is the name: BEER PALE PILSEN,
with the word "Beer" written in large amber letters, larger than any of the letters found in the
SMC label.

The trial court perceptively observed that the word "BEER" does not appear in SMC's
trademark, just as the words "SAN MIGUEL" do not appear in ABI's trademark. Hence, there is
absolutely no similarity in the dominant features of both trademarks.

Neither in sound, spelling or appearance can BEER PALE PILSEN be said to be confusingly
similar to SAN MIGUEL PALE PILSEN. No one who purchases BEER PALE PILSEN can
possibly be deceived that it is SAN MIGUEL PALE PILSEN. No evidence whatsoever was
presented by SMC proving otherwise.

Besides the dissimilarity in their names, the following other dissimilarities in the trade dress or
appearance of the competing products abound:

(1) The SAN MIGUEL PALE PILSEN bottle has a slender tapered neck.

The BEER PALE PILSEN bottle has a fat, bulging neck.

(2) The words "pale pilsen" on SMC's label are printed in bold and laced letters along a diagonal
band, whereas the words "pale pilsen" on ABI's bottle are half the size and printed in slender
block letters on a straight horizontal band. (See Exhibit "8-a".).

(3) The names of the manufacturers are prominently printed on their respective bottles.

SAN MIGUEL PALE PILSEN is "Bottled by the San Miguel Brewery, Philippines," whereas
BEER PALE PILSEN is "Especially brewed and bottled by Asia Brewery Incorporated,
Philippines."

(4) On the back of ABI's bottle is printed in big, bold letters, under a row of flower buds and
leaves, its copyrighted slogan:

"BEER NA BEER!"

Whereas SMC's bottle carries no slogan.

(5) The back of the SAN MIGUEL PALE PILSEN bottle carries the SMC logo, whereas the
BEER PALE PILSEN bottle has no logo.
45

(6) The SAN MIGUEL PALE PILSEN bottle cap is stamped with a coat of arms and the words
"San Miguel Brewery Philippines" encircling the same.

The BEER PALE PILSEN bottle cap is stamped with the name "BEER" in the center,
surrounded by the words "Asia Brewery Incorporated Philippines."

(7) Finally, there is a substantial price difference between BEER PALE PILSEN (currently at
P4.25 per bottle) and SAN MIGUEL PALE PILSEN (currently at P7.00 per bottle). One who
pays only P4.25 for a bottle of beer cannot expect to receive San Miguel Pale Pilsen from the
storekeeper or bartender.

The fact that the words pale pilsen are part of ABI's trademark does not constitute an
infringement of SMC's trademark: SAN MIGUEL PALE PILSEN, for "pale pilsen" are generic
words descriptive of the color ("pale"), of a type of beer ("pilsen"), which is a light bohemian
beer with a strong hops flavor that originated in the City of Pilsen in Czechoslovakia and
became famous in the Middle Ages. (Webster's Third New International Dictionary of the
English Language, Unabridged. Edited by Philip Babcock Gove. Springfield, Mass.: G & C
Merriam Co., [c] 1976, page 1716.) "Pilsen" is a "primarily geographically descriptive word,"
(Sec. 4, subpar. [e] Republic Act No. 166, as inserted by Sec. 2 of R.A. No. 638) hence, non-
registerable and not appropriable by any beer manufacturer. The Trademark Law provides:

Sec. 4. . . .. The owner of trade-mark, trade-name or service-mark used to

distinguish his goods, business or services from the goods, business or services
of others shall have the right to register the same [on the principal register],
unless it:

xxx xxx xxx

(e) Consists of a mark or trade-name which, when applied to or used in

connection with the goods, business or services of the applicant is merely
descriptive or deceptively misdescriptive of them, or when applied to or used in
connection with the goods, business or services of the applicant is primarily
geographically descriptive or deceptively misdescriptive of them, or is primarily
merely a surname." (Emphasis supplied.)

The words "pale pilsen" may not be appropriated by SMC for its exclusive use even if they are
part of its registered trademark: SAN MIGUEL PALE PILSEN, any more than such descriptive
words as "evaporated milk," "tomato ketchup," "cheddar cheese," "corn flakes" and "cooking oil"
may be appropriated by any single manufacturer of these food products, for no other reason
than that he was the first to use them in his registered trademark. In Masso Hermanos, S.A. vs.
Director of Patents, 94 Phil. 136, 139 (1953), it was held that a dealer in shoes cannot register
"Leather Shoes" as his trademark because that would be merely descriptive and it would be
unjust to deprive other dealers in leather shoes of the right to use the same words with
reference to their merchandise. No one may appropriate generic or descriptive words. They
belong to the public domain (Ong Ai Gui vs. Director of Patents, 96 Phil. 673, 676 [1955]):

A word or a combination of words which is merely descriptive of an article of

trade, or of its composition, characteristics, or qualities, cannot be appropriated
and protected as a trademark to the exclusion of its use by others. . . . inasmuch
as all persons have an equal right to produce and vend similar articles, they also
46

have the right to describe them properly and to use any appropriate language or
words for that purpose, and no person can appropriate to himself exclusively any
word or expression, properly descriptive of the article, its qualities, ingredients or
characteristics, and thus limit other persons in the use of language appropriate to
the description of their manufactures, the right to the use of such language being
common to all. This rule excluding descriptive terms has also been held to apply
to trade-names. As to whether words employed fall within this prohibition, it is
said that the true test is not whether they are exhaustively descriptive of the
article designated, but whether in themselves, and as they are commonly used
by those who understand their meaning, they are reasonably indicative and
descriptive of the thing intended. If they are thus descriptive, and not arbitrary,
they cannot be appropriated from general use and become the exclusive
property of anyone. (52 Am. Jur. 542-543.)

. . . . Others may use the same or similar descriptive word in connection with their
own wares, provided they take proper steps to prevent the public being deceived.
(Richmond Remedies Co. vs. Dr. Miles Medical Co., 16 E. [2d] 598.)

. . . . A descriptive word may be admittedly distinctive, especially if the user is the

first creator of the article. It will, however, be denied protection, not because it
lacks distinctiveness, but rather because others are equally entitled to its use. (2
Callman. Unfair Competition and Trademarks, pp. 869-870.)" (Emphasis
supplied.)

The circumstance that the manufacturer of BEER PALE PILSEN, Asia Brewery Incorporated,
has printed its name all over the bottle of its beer product: on the label, on the back of the bottle,
as well as on the bottle cap, disproves SMC's charge that ABI dishonestly and fraudulently
intends to palm off its BEER PALE PILSEN as SMC's product. In view of the visible differences
between the two products, the Court believes it is quite unlikely that a customer of average
intelligence would mistake a bottle of BEER PALE PILSEN for SAN MIGUEL PALE PILSEN.

The fact that BEER PALE PILSEN like SAN MIGUEL PALE PILSEN is bottled in amber-colored
steinie bottles of 320 ml. capacity and is also advertised in print, broadcast, and television
media, does not necessarily constitute unfair competition.

Unfair competition is the employment of deception or any other means contrary to good faith by
which a person shall pass off the goods manufactured by him or in which he deals, or his
business, or services, for those of another who has already established goodwill for his similar
goods, business or services, or any acts calculated to produce the same result. (Sec. 29,
Republic Act No. 166, as amended.) The law further enumerates the more common ways of
committing unfair competition, thus:

Sec. 29. . . .

In particular, and without in any way limiting the scope of unfair competition, the
following shall be deemed guilty of unfair competition:

(a) Any person, who in selling his goods shall give them the general appearance
of goods of another manufacturer or dealer, either as to the goods themselves or
in the wrapping of the packages in which they are contained, or the devices or
47

words thereon, or in any other feature of their appearance, which would be likely
to influence purchasers to believe that the goods offered are those of a
manufacturer or dealer other than the actual manufacturer or dealer, or who
otherwise clothes the goods with such appearance as shall deceive the public
and defraud another of his legitimate trade, or any subsequent vendor of such
goods or any agent of any vendor engaged in selling such goods with a like
purpose.

(b) Any person who by any artifice, or device, or who employs any other means
calculated to induce the false belief that such person is offering the services of
another who has identified such services in the mind of the public; or

(c) Any person who shall make any false statement in the course of trade or who
shall commit any other act contrary to good faith of a nature calculated to
discredit the goods, business or services of another.

In this case, the question to be determined is whether ABI is using a name or mark for its beer
that has previously come to designate SMC's beer, or whether ABI is passing off its BEER
PALE PILSEN as SMC's SAN MIGUEL PALE PILSEN.

. . ..The universal test question is whether the public is likely to be deceived.

Nothing less than conduct tending to pass off one man's goods or business as
that of another will constitute unfair competition. Actual or probable deception
and confusion on the part of the customers by reason of defendant's practices
must always appear. (Shell Co., of the Philippines, Ltd. vs. Insular Petroleum
Refining Co. Ltd. et al., 120 Phil. 434, 439.)

The use of ABI of the steinie bottle, similar but not identical to the SAN MIGUEL PALE PILSEN
bottle, is not unlawful. As pointed out by ABI's counsel, SMC did not invent but merely borrowed
the steinie bottle from abroad and it claims neither patent nor trademark protection for that bottle
shape and design. (See rollo, page 55.) The Cerveza Especial and the Efes Pale Pilsen use the
"steinie" bottle. (See Exhibits 57-D, 57-E.) The trial court found no infringement of SMC's bottle
—

The court agrees with defendant that there is no infringement of plaintiff's bottle,
firstly, because according to plaintiff's witness Deogracias Villadolid, it is a
standard type of bottle called steinie, and to witness Jose Antonio Garcia, it is not
a San Miguel Corporation design but a design originally developed in the United
States by the Glass Container Manufacturer's Institute and therefore lacks
exclusivity. Secondly, the shape was never registered as a trademark. Exhibit "C"
is not a registration of a beer bottle design required under Rep. Act 165 but the
registration of the name and other marks of ownership stamped on containers as
required by Rep. Act 623. Thirdly, the neck of defendant's bottle is much larger
and has a distinct bulge in its uppermost part. (p. 186, Rollo.)

The petitioner's contention that bottle size, shape and color may not be the exclusive property of
any one beer manufacturer is well taken. SMC's being the first to use the steinie bottle does not
give SMC a vested right to use it to the exclusion of everyone else. Being of functional or
common use, and not the exclusive invention of any one, it is available to all who might need to
use it within the industry. Nobody can acquire any exclusive right to market articles supplying
48

simple human needs in containers or wrappers of the general form, size and character
commonly and immediately used in marketing such articles (Dy Buncio vs. Tan Tiao Bok, 42
Phil. 190, 194-195.)

. . . protection against imitation should be properly confined to nonfunctional

features. Even if purely functional elements are slavishly copied, the
resemblance will not support an action for unfair competition, and the first user
cannot claim secondary meaning protection. Nor can the first user predicate his
claim to protection on the argument that his business was established in reliance
on any such unpatented nonfunctional feature, even "at large expenditure of
money." (Callman Unfair Competition, Trademarks and Monopolies, Sec. 19.33
[4th Ed.].) (Petition for Review, p. 28.)

ABI does not use SMC's steinie bottle. Neither did ABI copy it. ABI makes its own steinie bottle
which has a fat bulging neck to differentiate it from SMC's bottle. The amber color is a functional
feature of the beer bottle. As pointed out by ABI, all bottled beer produced in the Philippines is
contained and sold in amber-colored bottles because amber is the most effective color in
preventing transmission of light and provides the maximum protection to beer. As was ruled in
California Crushed Fruit Corporation vs. Taylor B. and Candy Co., 38 F2d 885, a merchant
cannot be enjoined from using a type or color of bottle where the same has the useful purpose
of protecting the contents from the deleterious effects of light rays. Moreover, no one may have
a monopoly of any color. Not only beer, but most medicines, whether in liquid or tablet form, are
sold in amber-colored bottles.

That the ABI bottle has a 320 ml. capacity is not due to a desire to imitate SMC's bottle because
that bottle capacity is the standard prescribed under Metrication Circular No. 778, dated 4
December 1979, of the Department of Trade, Metric System Board.

With regard to the white label of both beer bottles, ABI explained that it used the color white for
its label because white presents the strongest contrast to the amber color of ABI's bottle; it is
also the most economical to use on labels, and the easiest to "bake" in the furnace (p. 16, TSN
of September 20, 1988). No one can have a monopoly of the color amber for bottles, nor of
white for labels, nor of the rectangular shape which is the usual configuration of labels.
Needless to say, the shape of the bottle and of the label is unimportant. What is all important is
the name of the product written on the label of the bottle for that is how one beer may be
distinguished form the others.

In Dy Buncio v. Tan Tiao Bok, 42 Phil. 190, 196-197, where two competing tea products were
both labelled as Formosan tea, both sold in 5-ounce packages made of ordinary wrapping paper
of conventional color, both with labels containing designs drawn in green ink and Chinese
characters written in red ink, one label showing a double-decked jar in the center, the other, a
flower pot, this court found that the resemblances between the designs were not sufficient to
mislead the ordinary intelligent buyer, hence, there was no unfair competition. The Court held:

. . . . In order that there may be deception of the buying public in the sense
necessary to constitute unfair competition, it is necessary to suppose a public
accustomed to buy, and therefore to some extent familiar with, the goods in
question. The test of fraudulent simulation is to be found in the likelihood of the
deception of persons in some measure acquainted with an established design
and desirous of purchasing the commodity with which that design has been
49

associated. The test is not found in the deception, or possibility of the deception,
of the person who knows nothing about the design which has been counterfeited,
and who must be indifferent as between that and the other. The simulation, in
order to be objectionable, must be such as appears likely to mislead the
ordinarily intelligent buyer who has a need to supply and is familiar with the
article that he seeks to purchase.

The main thrust of SMC's complaint if not infringement of its trademark, but unfair competition
arising form the allegedly "confusing similarity" in the general appearance or trade dress of
ABI's BEER PALE PILSEN beside SMC's SAN MIGUEL PALE PILSEN (p. 209, Rollo)

SMC claims that the "trade dress" of BEER PALE PILSEN is "confusingly similar" to its SAN
MIGUEL PALE PILSEN because both are bottled in 320 ml. steinie type, amber-colored bottles
with white rectangular labels.

However, when as in this case, the names of the competing products are clearly different and
their respective sources are prominently printed on the label and on other parts of the bottle,
mere similarity in the shape and size of the container and label, does not constitute unfair
competition. The steinie bottle is a standard bottle for beer and is universally used. SMC did not
invent it nor patent it. The fact that SMC's bottle is registered under R.A. No. 623 (as amended
by RA 5700, An Act to Regulate the Use of Duly Stamped or Marked Bottles, Boxes, Casks,
Kegs, Barrels and Other Similar Containers) simply prohibits manufacturers of other foodstuffs
from the unauthorized use of SMC's bottles by refilling these with their products. It was not
uncommon then for products such as patis (fish sauce) and toyo (soy sauce) to be sold in
recycled SAN MIGUEL PALE PILSEN bottles. Registration of SMC's beer bottles did not give
SMC a patent on the steinie or on bottles of similar size, shape or color.

Most containers are standardized because they are usually made by the same manufacturer.
Milk, whether in powdered or liquid form, is sold in uniform tin cans. The same can be said of
the standard ketchup or vinegar bottle with its familiar elongated neck. Many other grocery items
such as coffee, mayonnaise, pickles and peanut butter are sold in standard glass jars. The
manufacturers of these foodstuffs have equal right to use these standards tins, bottles and jars
for their products. Only their respective labels distinguish them from each other. Just as no milk
producer may sue the others for unfair competition because they sell their milk in the same size
and shape of milk can which he uses, neither may SMC claim unfair competition arising from
the fact that ABI's BEER PALE PILSEN is sold, like SMC's SAN MIGUEL PALE PILSEN in
amber steinie bottles.

The record does not bear out SMC's apprehension that BEER PALE PILSEN is being passed
off as SAN MIGUEL PALE PILSEN. This is unlikely to happen for consumers or buyers of beer
generally order their beer by brand. As pointed out by ABI's counsel, in supermarkets and
tiendas, beer is ordered by brand, and the customer surrenders his empty replacement bottles
or pays a deposit to guarantee the return of the empties. If his empties are SAN MIGUEL PALE
PILSEN, he will get SAN MIGUEL PALE PILSEN as replacement. In sari-sari stores, beer is
also ordered from the tindera by brand. The same is true in restaurants, pubs and beer gardens
— beer is ordered from the waiters by brand. (Op. cit. page 50.)

Considering further that SAN MIGUEL PALE PILSEN has virtually monopolized the domestic
beer market for the past hundred years, those who have been drinking no other beer but SAN
MIGUEL PALE PILSEN these many years certainly know their beer too well to be deceived by a
50

newcomer in the market. If they gravitate to ABI's cheaper beer, it will not be because they are
confused or deceived, but because they find the competing product to their taste.

Our decision in this case will not diminish our ruling in "Del Monte Corporation vs. Court of
Appeals and Sunshine Sauce Manufacturing Industries," 181 SCRA 410, 419, 3 that:

. . . to determine whether a trademark has been infringed, we must consider the

mark as a whole and not as dissected. If the buyer is deceived, it is attributable to
the marks as a totality, not usually to any part of it.

That ruling may not apply to all kinds of products. The Court itself cautioned that in resolving
cases of infringement and unfair competition, the courts should "take into consideration several
factors which would affect its conclusion, to wit: the age, training and education of the usual
purchaser, the nature and cost of the article, whether the article is bought for immediate
consumption and also the conditions under which it is usually purchased" (181 SCRA 410, 418-
419).
The Del Monte case involved catsup, a common household item which is bought off the store shelves by
housewives and house help who, if they are illiterate and cannot identify the product by name or brand,
would very likely identify it by mere recollection of its appearance. Since the competitor, Sunshine Sauce
Mfg. Industries, not only used recycled Del Monte bottles for its catsup (despite the warning embossed on
the bottles: "Del Monte Corporation. Not to be refilled.") but also used labels which were "a colorable
imitation" of Del Monte's label, we held that there was infringement of Del Monte's trademark and unfair
competition by Sunshine.
Our ruling in Del Monte would not apply to beer which is not usually picked from a store shelf but ordered
by brand by the beer drinker himself from the storekeeper or waiter in a pub or restaurant.
Moreover, SMC's brand or trademark: "SAN MIGUEL PALE PILSEN" is not infringed by ABI's mark:
"BEER NA BEER" or "BEER PALE PILSEN." ABI makes its own bottle with a bulging neck to differentiate
it from SMC's bottle, and prints ABI's name in three (3) places on said bottle (front, back and bottle cap) to
prove that it has no intention to pass of its "BEER" as "SAN MIGUEL."
There is no confusing similarity between the competing beers for the name of one is "SAN MIGUEL" while
the competitor is plain "BEER" and the points of dissimilarity between the two outnumber their points of
similarity.
Petitioner ABI has neither infringed SMC's trademark nor committed unfair competition with the latter's
SAN MIGUEL PALE PILSEN product. While its BEER PALE PILSEN admittedly competes with the latter
in the open market, that competition is neither unfair nor fraudulent. Hence, we must deny SMC's prayer
to suppress it.
WHEREFORE, finding the petition for review meritorious, the same is hereby granted. The decision and
resolution of the Court of Appeals in CA-G.R. CV No. 28104 are hereby set aside and that of the trial
court is REINSTATED and AFFIRMED. Costs against the private respondent.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-69668 October 2, 1986

51

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
HUMBERTO TEMPONGKO, JR., defendant-appellant.

The Solicitor General for plaintiff-appellee.

Adriano Pagarigan for defendant-appellant.

CRUZ, J.:p

The appellant is before us to challenge his conviction of the crime of rape. He claims it was not
he who erred but the trial court. The usual plea is made: that there was a misappropriation of
the evidence, resulting in the sentence of reclusion perpetua that he now faces. He prays for a
reversal.

At the time of the commission of the alleged offense, the complainant, Lolita Dacoycoy, was an
18-year old senior student at the Manuel L. Quezon High School and undergoing citizen army
training (CAT) under the command of the appellant. 1 The appellant was 43 years old, married,
with five children, and commandant of the said course, besides being the owner of a tailoring
shop. 2

These are the facts as the trial court saw them.

On November 9, 1981, the complainant and her friend, Rosalita Quinto, went to the appellant's
tailoring shop in accordance with the appointment made by them the day before. This was about
7 o'clock in the evening. Their purpose was to solicit a contribution for their high school annual.
Upon arrival one hour later, the appellant offered them beer, which they drank. Lolita became
dizzy and the appellant suggested that the two girls stay for the night. The appellant then left, at
about 11:30 o'clock. Lolita slept on the sofa while Rosalita slept on the floor about two arms
length from her. It was at dawn when Lolita felt the weight of a person on her whom she
immediately recognized as the appellant. She pleaded, "Huwag mong gawin sa akin iyan, sir."
The appellant kissed her and bit her lower lip. Lolita boxed him in the back and he boxed her in
the stomach, rendering her unconscious. She did not scream or call for help because it all
happened so fast. When she woke up, the deed was done and she was bleeding. The appellant
was seated on the sofa totally naked. She moaned presumably in anguish and pain, and
Rosalita woke up. Rosalita embraced and consoled Lolita. She turned on the light and
upbraided the appellant who at that time was already putting on his trousers. The appellant
soon left without saying a word, looking very nervous. As Lolita's jogging pants were bleed,
Rosalita left to get her some clothes. Lolita stayed until past noon and when Rosalita did not
return decided to leave the office. She proceeded to the house of another friend, a certain
Cecile, where she stayed for five days until she was fetched by her stepfather, Delfin Dalisay.
This was Lolita Dacoycoy's testimony. 3

Continuing the story, Delfin Dalisay related that on November 10, Rosalita and her mother
informed him of Lolita's rape. He blamed Rosalita for Lolita's misfortune, and Rosalita and her
mother left in a huff. Five days later, Cecile's sister informed them at their market stall that Lolita
was in their house. He fetched Lolita from there and later, upon advice of the lawyer to whom
they had earlier been referred by a friend, he and her mother took Lolita to the National Bureau
52

of Investigation, where she underwent a medical examination. 4 Part of this narration was
contributed by Clarita Dacoycoy, Lolita's mother, who also testified on the civil damages
suffered by the complainant. 5

According to the medical report as explained by Dr. Orlando Salvador of the NBI in layman's
terms, the complainant was deflowered on or about the date of the alleged rape. This witness
also testified that the claimed blow inflicted on the complainant's stomach would not necessarily
leave any external sign or mark. 6

Testifying for himself, the appellant denied the charge, saying he was at home with his family
when the rape was supposedly committed. He did not deny that he offered the two girls beer
and allowed them to sleep in his office in the night of November 9, 1981. He declared, however,
that having left his office at about 11:30 p.m. of that date, he returned thereto at about 9 o'clock
in the morning of the following day and not earlier. In fact, he saw the complainant having
breakfast at that time. 7

The appellant presented two witnesses to corroborate his testimony, but it seems they did him
more harm than good. We shall go to that later.

The medical report suggests that the complainant was a virgin at the time of the supposed
intercourse, but it would seem that her conduct in the night of November 9, 1981, was hardly
maidenly or at least discreet. First, she went to the office of a man she did not know very well at
7 o'clock on a Sunday evening. Then she accepted beer instead of a soft drink, which would
have been the proper refreshment for her and her companion, considering their age and sex.
Not only that, instead of taking a few sips just to be polite, what she did was drink about three-
fourths of the glass, as a result of which she felt dizzy. Then, instead of going home with her
companion, she decided to stay and sleep in the strange office of this person who, to repeat,
was by her own narration not close to her.

There is no evidence that her friend Rosalita was also dizzy and could not have taken her home
that night. In fact, Lolita herself testified that Rosalita did not complain of being dizzy. 8 The
appellant's office on C.M. Recto was not far from the complainant's house on Vicente G. Cruz,
which could have been reached by one jeep ride. Alternatively, she had a telephone at her
house and could have called one of her relatives to fetch her if she and Rosalita could not leave
by themselves. 9 It is incredible that she did not even trouble to tell her parents of her
whereabouts. One might expect such thoughtless conduct of an experienced girl of loose
discipline but not of the virtuous and virginal girl the complainant was supposed to be.

The other parts of her testimony also raise some perplexing questions. By her own account, she
was raped on the sofa while her friend Rosalita was sleeping on the floor only two arms length
away and in the same room. 10 The implication is that the appellant was reckless not only of
resistance from Lolita but also of discovery by Rosalita. The complainant testified that he
immediately recognized the appellant although she had just awakened and that when she
recovered consciousness after having been boxed in the stomach, she had already been
ravished. Strangely, the appellant was then still seated on the sofa and apparently taking his
time about dressing. 11 She also said she was desperate for clothing because her jogging pants
were bloody. 12 Yet it did not occur to her to get other attire, which must have been available in
abundance in the place where she was then, which was a tailoring shop. In fact, the shop was a
contractor for the supplying of, precisely, CAT uniforms. 13
53

Instead of going straight home, which would have been the normal reaction of a young woman
subjected to her traumatic experience, what she did was stay with a friend, the mysterious
Cecile. 14 She stayed there for five days and did not communicate with her mother even once.
Neither did her friend Cecile. In fact, it was only on the fifth day that Cecile's sister saw fit to tell
the complainant's family where Lolita was notwithstanding Lolita's alleged condition at the time.
If, according to Delfin Dalisay, the complainant was "tulala" when he saw her, it would have
been the natural thing for Cecile to inform Lolita's family of her state of shock as soon as
possible.

One also wonders why Rosalita Quinto, the complainant's companion on the night of the alleged
rape, and who was supposed to be in the room when the complainant claimed she was
ravished, was not presented as a witness by the prosecution It is not often that the prosecution
has the good fortune of an actual eyewitness in cases like this, and yet neither the fiscal nor the
private prosecutor saw fit to ask Rosalita to corroborate the testimony of Lolita. Instead, they
presented only the parents of Lolita who testified on what happened after, and not before and
during, the alleged rape.

For its part, the defense was none-too-convincing either and, in the view of the trial court, fatally
flawed. The appellant relied on alibi, an inherently feeble excuse that cannot prevail as against
the positive Identification of the accused. Moreover, the appellant was living in Sisa, in
Sampaloc, only two kilometers or so from his office, 15 where the rape was allegedly
committed. It could have been reached from his house in a matter of minutes, as the trial court
observed, considering the light traffic at 5 o'clock in the morning or thereabouts.

The appellant's first witness, Remy Oriola, testified that Lolita and Rosalita slept in the
appellant's office in the morning of November 8, 1981, and that the appellant returned thereto
the following morning of November 9, 1981. 16 By contrast, the appellant's testimony was that
the two girls slept in his office on November 9, 1981, and that he returned thereto the following
morning of November 10, 1981. 17 And whereas the appellant testified that the complainant
came to his office with a paper bag containing clothes, 18 the witness said Lolita was carrying
only a handbag. 19

The testimony of the other defense witness, Rolando Hermilo, was not only practically useless
but in fact prejudicial to the appellant. In the first place, he testified only up to the time he left the
appellant's office at about 11 o'clock in the night of November 9, 1981, and not on what
happened later to the girls who were left behind. 20 But what makes his testimony suspect was
his admission that he learned of the charge against the appellant, and was asked to testify for
him, only on the date itself of the hearing, in the very morning when he was presented as
witness, 21 and this was more than two years after the alleged rape. On top of this, he was by
his own admission reading the transcript of the appellant's testimony before he was actually
called to the witness stand. 22

The defendant argues that Lolita should have shouted for help but did not; that he would not
have attempted the rape in such a cramped place and with another person in the very room
where the crime was supposedly committed; and that there were no signs of the alleged
stomach blow on the complainant's stomach.

On the other hand, he could not explain why he offered the two girls beer when soft drinks
would have been more appropriate, and also why he allowed them to sleep in his office when
they were just trainees under his command and had no special ties with him. His claim was that
54

they had left home because Lolita had been scolded by her mother was belied by his own
testimony that he heard Lolita calling her mother on the telephone to say she was sleeping with
a friend. 23

It is unfortunate that the trial court did little to analyze the evidence of the parties and virtually
limited itself to the defense of alibi, which it declared to be untenable. There should have been a
more careful analysis of the other evidence to get to the truth of this unfortunate mess where
there is more than meets the eye. This is not a pat case, so to speak. There are many
unanswered questions. The conduct of both the complainant and the defendant, as narrated by
the requires not a little explaining. The trial judge should have probed deeper instead of simply
relying on the question of alibi, which is only part of the intriguing mosaic.

The basic principle in every criminal prosecution is that accusation is not synonymous with guilt.
The accused is presumed innocent until the contrary is proved by the prosecution. If the
prosecution fails, it fails utterly, even if the defense is weak or, indeed, even if there is no
defense at all. The defendant faces the full panoply of state authority with all "The People of the
Philippines" arrayed against him. In a manner of speaking, he goes to bat with all the bases
loaded. The odds are heavily against him. It is important, therefore, to equalize the positions of
the prosecution and the defense by presuming the innocence of the accused until the state is
able to refute the presumption by proof of guilt beyond reasonable doubt.

The appellant does not deny that he asked the two girls to see him at his office in the evening of
November 9, 1981; that he there offered them beer, which they drank; and that he permitted
them to sleep there that night.

The proper thing to do was to receive these girls at his office at the MLQ where he was working
as commandant of the CAT, and during school hours. Soft drinks would have been a more
appropriate refreshment for the young ladies, especially since such beverages were easily
available. And if it is true, as he says, that the complainant asked to sleep in his office because
she had been scolded by her mother, the appellant, exercising as he did some moral influence
over her as her commandant, should have counseled her to go home. Failing that, he should
have at least caged up the complainant's mother to tell her that Lolita was in his office.

But all these improprieties and omissions come under the heading of indiscretions and not
crimes. Serving beer instead of soft drinks and snowing the use of one's office for sleeping
purposes are not indictable offenses. Moral irresponsibility and thoughtlessness are also not
prohibited under our criminal laws. More importantly, all these indiscretion do not necessarily
lead to the conclusion that the appellant raped the complainant in the morning of November 10,
1981, in his office. The connection is too far-fetched.

The only fact conclusively established by the prosecution is that the complainant was
deflowered on or about the time of the alleged rape, but that is all. The rest of its case is based
on the improbable testimony of the complainant, whose conduct, even before the alleged rape,
was hardly befitting a proper young lady, to say the least.

The almost indifferent reaction of her family is implausible too, if we go by the recorded
testimony. After being informed of Lolita's rape, they did not immediately look for her; and when
they did, their efforts were hardly energetic. The mother testified that they later searched for her
but did not elaborate beyond saying that they asked her friends. They did not inquire from her
classmates in MLQ They did not talk to the alleged rapist, whom Rosalita had Identified. In fact,
55

when she and her mother informed Delfin Dalisay that Lolita had been raped, he did not ask
where she was — a most natural and logical question to ask at that time. All he did, by his own
account, was blame Rosalita for the incident.

It was only five days later that they teamed of her whereabouts, and this because Cecile's sister
came to see them and informed them. As for Cecile, in whose house the complainant
supposedly stayed for five days, she was not even presented as witness to corroborate Lolita's
testimony. It is significant that although she and Rosalita Quinto played key roles as it were in
this case, they were strangely silent and absent at the trial.

The trouble with the appellant, according to the trial court, is that he could not prove his defense of alibi.
But then how could he? He said he was sleeping in his house with his family. At five o'clock in the
morning, where else could he have been? How could he have produced third parties as witnesses to
testify that he was fast asleep in his own house? His presence in his own bedroom at that time was not
incredible or even improbable but perfectly believable.
What does strain the imagination is the complainant's own implausible story: of a virgin who visited a
casual acquaintance of the opposite sex in his own office on a Sunday evening; accepted and drank beer
with him; asked to sleep in his office; was awakened by the weight of a person on top of her whom she
immediately recognized notwithstanding that her eyes were not yet accustomed to the dark; suffered a
blow in her stomach and recovered consciousness to discover she had been raped by the appellant who
was still seated on the sofa totally naked; could not leave because her jogging pants were bloodied
notwithstanding that she was in a tailoring shop where clothes were available in abundance; finally went
to a friend's house instead of straight to her mother from whom she normally would have sought solace.
Most significantly, the alleged rape was committed within two arms length of her companion, Rosalita
Quinto, who was sleeping with her in the same room, and could have awakened any time and in fact did
so, according to Lolita, when she moaned after her ravishment.
The theory of the prosecution has too many loose ends that it has failed to tie up to the satisfaction of this
Court. The guilt of the appellant has not been established beyond doubt and so cannot be affirmed in this
appellant The defense is weak, to be sure, but for all the persuasive arguments of the Solicitor General
and the private prosecutor, this Court remains unconvinced that the appellant raped the complainant. The
appellant may have been lying, and there is evidence of this, but we are not prepared to accept, to the
point of moral certainty, that the complainant was telling the truth. The ambiguous evidence of the
prosecution cannot justify our condemning the appellant to prison for the rest of his life where there are
whispers of doubt that he is guilty.
WHEREFORE, the decision' of the lower court is REVERSED and the appellant is ACQUITTED, without
any pronouncement as to costs. It is so ordered.

THE UNITED STATES, plaintiff-appellee,

vs.
AMADEO CORRAL, defendant-appellant.

Republic of the Philippines

Supreme Court
Manila
En Banc

G.R. No. L-5325

3 March 1910
56

Basilio R. Mapa for appellant.

Attorney-General Villamor for appellee.

ARELLANO, C.J.:

Amadeo Corral maintained Paz Ramos as his wife or seamstress. The latter left his house and
appeared at the police station in Paco and complaint that he had illtreated her. Corral came
after the woman Ramos and they left the station together. Later, however, Corral appeared at
the same station asking if he could cause the woman’s arrest because she had left his house,
taking with her a trunk and a diamond ring; the sergeant asked him for his address, and in reply
he handed him his card (Exhibit C). He then wrote to the justice of the peace of Corregidor
Islands, inquiring whether he could file a complaint against her in the court of the said justice;
his letter having been answered, one day Corral met the wife of the said justice of the peace in
Manila, gave her his card (Exhibit E), offered her his services and informed her of the departure
of the woman Ramos.

On another day the municipal president of Corregidor received a warrant by mail (Exhibit A),
sent for Ramos and said to her: “Here is a warrant and Captain Crame wants you because there
is a case against you in the hands of the fiscal,” and read to her document A, wherein she is
charged with having taken away one trunk and a diamond ring. Juan Mapa appeared before the
municipal president with a card from the accused (Exhibit F), and the former surrendered to him
the person of Paz Ramos in compliance with the order of arrest, so that he could turn her over
to the police in Manila.

Paz Ramos and Juan Mapa came to Manila, and Juan Mapa testifies that: “We got ashore, and
I gave the letter, that is, the warrant (Exhibit A) to the first policeman I came across and turned
Paz Ramos over to him.”

Tiburcio Quiogue, who is the policeman above alluded to, testified to the same effect, saying
that it was 9 in the evening when he received the paper in the form of an order by Captain
Crame, and that no sooner was he about to read the same than Corral made his appearance
and told him that he could not consent to the arrest of his wife, and that no attention should be
paid to the paper because it was a forced document and that the order it contained was not a
real one; he said that whatever the said certificate might be, that he should not read it because it
was a falsified document. Hardly had he commenced to read the first words when Corral
snatched the paper from his hands and tore it to pieces, throwing them to the ground, from
whence they were picked up by Juan Mapa or someone else who was there, and delivered to
the policeman. Therefore it was possible to present the document, pieced together, to the court.
The document is of the following tenor:

DEC. 15, 1908.

The Municipal President of Corregidor.

SIR: It is desired to know the whereabouts of Señora Paz Ramos (alias) de Corral, a resident of
No. 144, interior, Calle San Marcelino, who left on the 4th day of the present month, taking with
her one trunk which contained several articles of value, a diamond ring, and several important
documents which are now in the hands of the prosecuting attorney, Mr. George.

Enclosed I send a copy of the warrant for the arrest of the said woman for proper action.
57

“To all officers of the law, greeting:

“The arrest of Paz Ramos (alias) de Corral is hereby ordered, she having been charged before
me with the crime of theft. Let her be brought over to my presence as soon as possible in order
that the law may be applied as it may be proper.

“Given at Manila on the 7th day of December, 1908.

(Signed) “R. ZARAGOZA,

“Asst. Prosecuting-Attorney.”

“Very respectfully,

“J. CRAME,
“Captain of Police.”

An indorsement on the back of the order of arrest shows that the same was complied with, and
that Paz Ramos was sent to manila by the municipal president of Corregidor, in charge of Mapa.

The accused does not deny Exhibit A, and says that he saw it in the hands of a policeman on
the Muelle de la Reina one night in December when, together with Paz Ramos, he was sent to
the Cuartel et Meisic where Sergeant Keses asked why he had torn that paper; he answered
that it was because it was not an official document, and at the trial he added that it was nothing
at all, not an official letter, and that, as he was in bad temper, he tore it up. When question as to
whether he had read that letter he answered that he read “the first portion of the letter ‘President
de Corregidor.’”

The Court of First Instance of Manila sentenced the accused to eight years and one day of
prision mayor, and to pay a fine of P250, with costs. The defendant has appealed from said
judgment, and the attorney-General has requested that the same be affirmed, save that the
penalty shall be of presidio mayor instead of prision mayor, as imposed in the judgment, with
the addition of the accessory penalties prescribed by the law.

In his brief the Attorney-General states that the signature of Captain Crame has been
counterfeited with sufficient likeness; that an order of arrest which had not been duly issued by
competent authority has been simulated; that an official document has been imitated; that it
matters not that the name of the fiscal, who appears to have issued the same, is improperly
written, or that the signature of Captain Crame lacks a de, which he uses in signing or that the
document should bear no official seal or heading, because, on the other hand, the official titles
“Assistant Prosecuting Attorney” and “Captain of Police,” following the signatures, and the
wording of the order of arrest, being in due form, are of more importance than the seal, the
heading, and the exactness of the signatures in inducing belief in the truth of what was set forth;
that this is true to such extent that the municipal president of Corregidor hastened to comply
with the order in question, believing it a genuine one contained in a request which he also
thought was genuine made by the said captain of police.

As the crime of falsification punished by article 301 in connection with article 300 (No. 1), of the
Penal Code has been committed, without any circumstance modifying the liability therefor, the
58

judgment appealed from is in accordance with the merits of the case, the provisions of the law,
and the contentions of the Attorney-General.

Therefore, the judgment appealed from is hereby affirmed: Provided, however, that the
sentence shall be presidio mayor and that the accused be further sentenced to suffer the
accessory penalties of article 57 of the code with the costs of this instance, and it is so ordered.

UNITED STATES v. CORRAL

UNITED STATES of America, Plaintiff-Appellee, v. Alberto CORRAL, Defendant-Appellant.

96-10535. No.

Argued and Submitted Sept. 18, 1998. -- April 08, 1999

Before:  CANBY and KLEINFELD, Circuit Judges, and KEEP,District Judge.1

Sally Ann Perring,San Joaquin College of Law, Clovis, California, for the defendant-
appellant.William L. Shipley (argued), Kathleen A. Servatius (briefed), United States Attorney,
Fresno, California, for the plaintiff-appellee.

Corral pleaded guilty to conspiracy to manufacture methamphetamine,  He appeals, arguing 

841(a)(1) and 846.  in violation of 21 U.S.C. §§ that the district court violated his due process
rights by considering unreliable double hearsay in calculating his sentence under the
Application of the Sentencing Guidelines to Sentencing Guidelines. United States the facts of
a case is reviewed for abuse of discretion. For the v. Aguilar-Ayala, 120 F.3d 176, 177-78 (9th
Cir.1997). reasons stated below, we reverse Corral's sentence and remand to the district court
for recomputation.

The hearsay statement, as quoted in the presentence report, is that another defendant, Aguilar,
said that Corral was Chavira's right hand man and that Chavira told her (Aguilar) that she was to
follow all of Corral's instructions, and if  she crossed Corral, it would be the same as if she
crossed Chavira. Chavira was said to be the head of the conspiracy, and was a fugitive. Corral
argues that this was unreliable, because Aguilar might have  spoken falsely to curry favor, and
Chavira may have spoken falsely to Aguilar to maintain control over Aguilar when she was with
Corral.

The government agrees that, while hearsay is admissible in sentencing proceedings, it requires
adequate indicia of reliability, and this The government states in hearsay was not reliable
enough to be used. its brief to us that “[t]he defendant correctly recognizes that there were no
such ‘indicia of reliability’ accompanying the hearsay Appellee's brief at page 7. statements of
his codefendant.”

The  dispute between the parties goes solely to whether the sentencing judge He never said
in so many words that he did, or relied on the hearsay. The probation officer had relied on the
59

hearsay in that he did not. The “right hand man” significant part for his recommendation.
statement was the basis for the probation officer's recommendations that an aggravating role in
the offense adjustment be considered and a The judge mitigating role in the offense
adjustment be denied. followed those recommendations.

The defense objected to the use Defense counsel argued in his presentence of the unreliable
hearsay. memorandum for a two level downward adjustment for minor role in the The defense
also argued for a 3B1.2(b).  offense, under U.S.S.G. § downward departure based on aberrant
behavior.

At the sentencing hearing, the government did not make the concession it now has, that the
hearsay was not sufficiently reliable for the court to rely on it When defense counsel reminded
the court that a hearsay in sentencing. objection was pending, the judge said “the court is
satisfied that hearsay is available pursuant to sentencing matters, and, therefore, The judge
denied a minor role adjustment, the objection is rejected.” as the probation officer had
recommended, but the judge did not say whether his denial was affected by the hearsay, though
the probation In denying officer's recommendation expressly was based partly on it. the
departure for aberrant behavior, the judge mentioned that Corral was “quite active” in the
conspiracy, and his involvement was “too organized,” which may have been references to his
supposed “right hand man” status.

We vacated a sentence and remanded for resentencing  We held that in United States v.
Huckins, 53 F.3d 276 (9th Cir.1995). relying on accomplice hearsay without adequate indicia of
reliability Huckins, violated the defendant's constitutional right to due process. Following
Huckins, we must likewise vacate the 53 F.3d at 280. If a sentencing court violates a 
sentence in the case at bar. defendant's constitutional right to due process, a fortiori it has
abused its discretion.

Huckins quoted the phrase, from Farrow v.  United States, 580 F.2d 1339, 1359 (9th
Cir.1978), that reversal is required when a sentencing considers unreliable information “only if
the challenged information is ‘demonstrably made the basis for the The government argues that
although the judge did not sentence.’ ” expressly state that he was not relying on the hearsay
in the case at bar, he also did not expressly state that he was, so he did not This argument
pushes the quoted language “demonstrably” rely on it.   A decision cannot be read like a
statute.  from Huckins too far. Huckins also refers to cases quoting the Supreme Court's
formulation in Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341
(1992), that “a remand is appropriate unless the reviewing court concludes, on the record as a
whole ․ that the error did not affect the district court's selection of the sentence imposed.” This
language suggests review based on a Huckins, 53 F.3d at 280.   fair evaluation of the record
as a whole rather than mechanical determination of whether the district judge expressly relied
on the In Huckins, the district judge did expressly rely unreliable hearsay. on the unreliable
hearsay, so the question of whether express reliance was necessary for reversal did not come
up and therefore was not In United States v. McKittrick, 142 F.3d 1170 (9th decided.
Cir.1998), we remanded because it is unclear whether the sentencing magistrate judge had
based denial of an adjustment on an incorrect ground.

This gives us three verbal formulas:  “demonstrably made There the basis,” “record as a
whole,” and whether “it is unclear.”  is nothing wrong with this, and it is not an intracircuit
conflict. They are all different ways of saying the same thing, that we should read the record
and decide whether reliance on impermissible information, which would be a due process
60

violation if it occurred, If it did not, then there would be no due process probably did occur.
That requires an exercise of judgment rather than a violation. mechanical word search.

It is our judgment that the sentencing The government did judge probably did rely on the
unreliable hearsay. not concede in the district court that the hearsay was unreliable, so the
judge had nothing but defense counsel's argument, which he The probation officer relied on it. 
rejected, for not relying on it. The judge accepted the probation officer's recommendation
made in   reliance on it, that no downward adjustment for minor role be made. The judge
denied the defense objection to the hearsay on the ground The judge was correct that that
hearsay is admissible in sentencing. hearsay is admissible in sentencing, but denial of the
objection without more suggests that he used it, not that he disregarded it.

Also, the circumstances of the sentencing and the judge's language suggest that the unreliable
hearsay may have mattered, possibly to the minor Corral was role adjustment, possibly to a
downward departure request. The major a 26-year-old with no substantial criminal record.
methamphetamine conspiracy started long before Corral became involved, The conspiracy and
continued for a substantial period after he left. lasted more than two years and seven months,
but Corral drove truck and Now that the bought chemicals for it for less than a month.
government has conceded the unreliability of the hearsay, the sentencing judge might want a
chance to take another look, if he did rely on it.

Corral's sentence is hereby VACATED and the case is REMANDED for resentencing.

BERNARDINO CACNIO, ET AL., plaintiffs-appellants,

vs.
LAZARO BAENS, defendant-appellee.

Republic of the Philippines

Supreme Court
Manila
En Banc

G.R. No. L-2116

16 March 1906

Francisco Rodriguez for appellants.

Modesto Reyes for appellee.

TORRES, J.:

The defendant, Lazaro Baens, brought an action in the court of the justice of the peace of
Tambobong against the plaintiffs herein for the recovery of several tracts of land, and judgment
having been rendered against the said plaintiffs, they appealed to the Court of First Instance.
The plaintiffs, now appellants, alleged that they were the absolute owners of their respective
building lots in the barrio of Hulong Duhat of the said town of Tambobong and described the
boundaries of each particular tract, asked that they be declared to be entitled to the ownership
and possession of their respective lots; that they be awarded the sum of 600 dollars damages
and the costs of proceedings; and as a special remedy prayed for a preliminary injunction to
stop further proceedings in the action for ejectment which had been brought against them,
61

alleging in support of their petition that the land belonging to Bernardino Cacnio had a
superficial area of 11 ares 95 centares and 15 square centimeters, and that belonging to
Severino de la Cruz has 4 ares 60 centares and 55 square centimeters, which said land they
acquired by inheritance from their respective parents, who had been in possession of the same
for more than forty years; the defendant, Baens, never having been in possession of the same.

The preliminary injunction prayed for in order to stay the execution of the judgments which might
have been entered in the actions in which the plaintiffs, Cacnio and Cruz, were interested, until
the final disposition of the other action for the title and possession, having been issued, the
defendant demurred and in his answer to the complaint, filed immediately thereafter, generally
and specifically denied all of the allegations contained therein. The denial of the second
paragraph of the complaint was limited to the statement contained in the same that without just
cause the defendant had brought the action, and that in view of the ruling upon the said
demurrer, the defendant reproduced his former answer.

Counsel for plaintiffs asked that the fourth paragraph of the complaint be amended so as to read
that the plaintiffs acquired the possession and ownership of their respective lands by inheritance
from their father, Severino de la Cruz, and his wife, Bernardina Cacnio, and asked that the
inscription of the said land made in favor of the defendant, Baens, be declared null and void.

The defendant stated that he had no objection to the allowance of these amendments, but that
he specifically denied each and all of the allegations contained therein.

Counsel for plaintiffs limited himself to impugning in writing the probatory force of the documents
presented by the defendant, but did not discuss the materiality of the same. Counsel for
defendant, therefore, asked the court to consider the proof presented by him as having been
duly allowed. The court reserved his decision upon the question of the admissibility of these
documents offered in evidence by the defendant, directed that the case proceed and the
evidence be taken; and after hearing the same, judgment was rendered on the 8th day of
September, 1903, declaring that the plaintiffs were not entitled to recover the lands claimed by
the defendant, and vacating the preliminary injunction theretofore issued in favor of the plaintiffs,
who were taxed with the costs.

First of all and for the purpose of this decision, we should state that to the order of the court of
the 30th of October, 1903, denying the motion for a new trial, no exception was taken by counsel
for plaintiffs as required in paragraph 3, section 497 of the Code of Civil Procedure. We can not,
therefore, review the evidence, nor can we draw from the facts proved the necessary
conclusions to render a final judgment; as justice and equity require, to quote the law itself.

Consequently this court, following the general provision contained in the first paragraph of
above-cited section 497, will only pass upon the question of law decided by the court below.

The plaintiffs brought an action to recover title to certain parcels of land then in their possession.
The defendant denied the title and possession which the plaintiffs claimed to the land in
controversy. The question then arises, Which of the parties has the better title to the land?

The title deeds presented, by the defendant were issued by the Direccion General de
Administracion Civil on the 25th of October, 1891, to him as the owner of a larger tract of land in
which the land in question is included, the defendant having acquired the same by composition
with the Government. This deed or patent was recorded in the Registry of Property on the 14th
62

of November, 1891, as found by the court below, and as is admitted in the printed briefs
presented to this court and in the record of the documentary proof presented by the defendant.
Counsel for plaintiffs denied the validity of the said deed, giving his reasons therefor, but did not
deny the fact that the document had been actually recorded, nor did he ask the court to disallow
and reject the documentary evidence thus presented. The court, after considering this evidence,
dismissed the action, and decided the same in favor of the defendant.

Public instruments, that is to say, those instruments authorized by a notary public or by a

competent public official with all the solemnities required by law, are admissible in evidence
even against a third party as to the fact which gave rise to their execution and of the date of the
latter. (Arts. 1216 and 1218 of the Civil Code.)

In the registry of real estate there should be recorded, according to articles 1 and 2 of the
Mortgage Law, among others, all instruments of conveyance of real estate or any interests
therein, all instruments relating to the acquisition of such property or property rights owned or
administered by the State, and other entities referred to in number 6, article 2 of the said law.

As has been seen, the deed presented by the defendant to prove his title to the land in question
is a public instrument, it having been authorized by the Director of Civil Administration of the
Spanish Government, who was the competent official empowered to issue such instrument, and
was duly recorded in the Registry of Property in accordance with the law. Consequently it is
competent proof and may prejudice third persons who for the purpose of this law are those who
did not participate in the execution of the instrument of contract thus recorded. (Arts. 23, 24, 25,
26, and 27 of the Mortgage Law.)

The inscription, therefore, of the instruments in question prejudices the plaintiffs, Cacnio and
Cruz, notwithstanding the fact that they did not participate in the proceedings relating to the
composition of the said land between the State and the defendant, and in view of the provisions
of article 27 of the Mortgage Law there can be no doubt that the said plaintiffs should be
considered as third persons, whom the execution of the deed or instrument of the defendant
and the inscription thereof in the Registry of Property affected and prejudiced.

It has not been shown that the deed or patent issued by the Direccion General de
Administracion Civil had any substantial defect which would render it null and void, nor has it
been proved that the party failed to publish the necessary notice as to the possession of the
land to which the said deed refers; and under paragraph 31 of section 334 of the Code of Civil
Procedure it must be presumed that this was done in accordance with the law until the contrary
is shown.

The defendant having complied with all the requisites and solemnities prescribed by law for the
registration of the said deed, and there being no proof of any defect which would render such
instrument null and void, it can not be held to be void, and it was so decided by the court below
in its judgment.

The question is raised as to whether the parol evidence introduced by the plaintiffs for the
purpose of showing that they had acquired title to the land, the recovery of which is now sought,
by extraordinary prescription under article 1959 of the Civil Code was sufficient to overcome and
defeat the right of the defendant based upon a deed issued to him by the State and duly
recorded in the Registry of Property. The court below in deciding this question held that the
deed or patent issued by the Direccion General de Administracion Civil showed that the
63

defendant had a better right than the plaintiffs to the land in question, and that the latter had no
right to claim the ownership thereof. This ruling of the court should, in our opinion, be sustained,
and can not in this case be reviewed, according to section 497 of the Code of Civil Procedure.

Further, it should be borne in mind that the court below, in the exercise of its discretion as to the
veracity of the witnesses and the manner in which they testified, followed the provisions of
section 273 et seq. of the Code of Civil Procedure, and no valid reason has been assigned to
support a finding that the court below committed an error in rendering the decision appealed
from.

For the reasons hereinbefore stated we are of the opinion that the judgment of the court below
should be affirmed, and the defendant acquitted of the complaint filed by the plaintiffs, with the
costs of this instance. After the expiration of twenty days, let judgment be entered in accordance
herewith, and let the cause be remanded to the Court of First Instance for execution of the
judgment. So ordered.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 143032 October 14, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SEGUNDINO VALENCIA y BLANCA, JOHNNY TADENA y TORDA,
and DOMINGO DEROY, JR. y SAROCAM, accused-appellants.

DECISION

PER CURIAM:

Accused-appellants Segundino Valencia y Blanca, Johnny Tadena y Torda and Domingo

Deroy, Jr. y Sarocam were charged and convicted by the Regional Trial Court of Quezon City
for violation of Section 15 of Republic Act (R.A.) 6425, otherwise known as the Dangerous
Drugs Act, for unlawfully selling or offering to sell 634.0 grams of Psuedoephedrine
Hydrochloride which is a regulated drug. The trial court sentenced each of the accused to the
supreme penalty of death and to pay a fine of P500,000.00. Hence, the case is now before us
on automatic review.

It appears from the prosecution evidence that on September 22, 1998, a confidential informant
of the PNP Narcotics Group confided to the group that he was able to negotiate the purchase of
one kilo of drugs from a certain Junior and Johnny. The information was passed to the
operatives’ team leader, Insp. Ramon Arsenal and then to their commanding officer, Supt.
64

Arturo Castillo. Supt. Castillo immediately formed a buy-bust operation team composed of
P/Insp. Arsenal, P/Insp. Beasa, SPO2 Estrada and SPO1 Facto. SPO1 Larry Facto was
designated as the poseur buyer. He was to buy the one kilo of drugs for the agreed price of
P800,000.00. SPO1 Facto was given ten P100.00 bills which he used in preparing the boodle
money.1

The team proceeded to the corner of Baler and Miller Streets in San Francisco Del Monte,
Quezon City. SPO1 Facto and the informant waited at the corner of Baler and Miller Streets,
while the other members of the team stayed about ten meters away. At about 10:50 in the
evening, a white Mitsubishi Lancer with plate no. UET 384 arrived. The driver, Johnny Tadena,
called the informant. The informant, together with SPO1 Facto, approached him. SPO1 Facto
was introduced by the informant to Johnny Tadena as the buyer. SPO1 Facto asked Tadena
where the stuff was. The latter replied, "It’s here." He told him not to worry because their boss, a
certain Dodong (Segundino Valencia), was present. SPO1 Facto saw three persons inside the
car. Valencia was seated beside the driver while their other companion, Domingo Deroy, was at
the backseat. Tadena then asked SPO1 Facto about the money and the latter showed him a
plastic bag containing the money. When SPO1 Facto asked Tadena to show him the stuff,
Valencia ordered Deroy to hand him the bag containing the drugs. Deroy did as instructed.
Valencia then handed the stuff to SPO1 Facto in exchange for the money. SPO1 Facto
examined the content of the bag and when he saw the white substance inside, he scratched his
head to signal his companions that the transaction had been consummated. SPO1 Facto then
introduced himself as a police officer and grabbed the car key from the ignition switch. SPO1
Facto arrested Johnny Tadena while his companions seized the other accused. The three
accused were brought to Camp Crame for investigation.2 The substance was submitted for
examination at the PNP Crime Laboratory. It tested positive for psuedo-ephedrine, a regulated
drug.3

The defense, on the other hand, alleged that in the evening of September 22, 1998, Johnny
Tadena went to see Segundino Valencia in Caloocan City to ask him if he knew anyone who
would be interested in buying a 1995 Mitsubishi Lancer. Valencia was allegedly engaged in the
business of buying and selling used cars. On the way home, Valencia rode with Tadena to go to
Bago Bantay, Quezon City. As they were crossing an intersection along Iligan Street, an Isuzu
van suddenly blocked their way. The passengers of the van who appeared to be police officers
approached them. They took Valencia’s gun which he bought from a police asset. The police
brought Valencia and Tadena to Camp Crame. Tadena was placed in a jail cell while Valencia
was brought before Col. Castillo. Col. Castillo showed Valencia a plastic bag and said that he
would use it as evidence against him. Valencia claimed that the police mauled him and extorted
from him the amount of P20,000.00. They also took his necklace worth P5,000.00 and his wallet
containing P1,200.00.4 Meanwhile, Domingo Deroy claimed that in the evening of September
22, 1998, he was picked up by the police without any reason at the house of Valencia’s
parents.5

On September 24, 1998, Assistant City Prosecutor Danilo B. Vargas filed the following
information against the accused:

"That on or about the 22nd day of September 1998 in Quezon City, Philippines, the said
accused, conspiring, confederating with and mutually helping one another, not having been
authorized by law to sell, dispense, deliver, transport or distribute any regulated drug, did then
and there wilfully and unlawfully sell or offer for sale 634.0 grams of white crystalline substance
containing Pseudoephedrine Hydrochloride which is a regulated drug.
65

CONTRARY TO LAW."6

Giving more weight to the testimony of the police officers who conducted the buy-bust
operation, the trial court convicted the accused of the crime charged. It held that the denial and
alibi of the accused were not sufficient to overturn the prosecution evidence which established
the guilt of the accused.7 The dispositive portion of the decision read:

"WHEREFORE, finding that the prosecution was able to establish the guilt of the accused
beyond reasonable doubt, the Court hereby sentences each of them (1) to suffer the penalty of
Death; (2) to pay a fine of P500,000.00; and (3) to pay the costs.

SO ORDERED."8

In this appeal, accused-appellants raise the following errors:

"1. The court a quo gravely erred in finding that the guilt of the accused-appellants for the crime
charged has been proven beyond reasonable doubt.

2. The court a quo gravely erred in giving weight and credence to the improbable testimonies of
the witnesses for the prosecution.

3. The court a quo gravely erred in finding that there was conspiracy in the case at bar."9

The appeal is without merit.

Accused-appellants were caught in flagrante delicto in a buy-bust operation. A buy-bust

operation is a form of entrapment whereby ways and means are resorted to for the purpose of
trapping and capturing the lawbreakers in the execution of their criminal plan. Unless there is
clear and convincing evidence that the members of the buy-bust team were inspired by any
improper motive or were not properly performing their duty, their testimony on the operation
deserves full faith and credit. When the police officers involved in the buy-bust operation have
no motive to falsely testify against the accused, the courts shall uphold the presumption that
they have performed their duties regularly.10 The trial court in this case correctly upheld the
testimony of the prosecution witnesses, the police officers who conducted the buy-bust
operation. It did not err in applying the presumption of regularity in the performance of duty by
law enforcement agents. We laid down in the case of People vs. Doria 11 the test in determining
the credibility of the testimony of police officers regarding the conduct of buy-bust operations.
The Court said:

"It is thus imperative that the presumption, juris tantum, of regularity in the performance of
official duty by law enforcement agents raised by the Solicitor General be applied with studied
restraint. The presumption should not by itself prevail over the presumption of innocence and
the constitutionally-protected rights of the individual. It is the duty of courts to preserve the purity
of their own temple from the prostitution of the criminal law through lawless enforcement. Courts
should not allow themselves to be used as an instrument of abuse and injustice lest an innocent
person be made to suffer the unusually severe penalties for drug offenses.

We therefore stress that the ‘objective’ test in buy-bust operations demands that the details of
the purported transaction must be clearly and adequately shown. This must start from the initial
66

contact between the poseur-buyer and the pusher, the offer to purchase, the promise or
payment of the consideration until the consummation of the sale by the delivery of the illegal
drug subject of the sale. The manner by which the initial contact was made, whether or not
through an informant, the offer to purchase the drug, the payment of the ‘buy-bust’ money, and
the delivery of the illegal drug, whether to the informant alone or the police officer, must be the
subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced
to commit an offense. Criminals must be caught but not at all cost. At the same time, however,
examining the conduct of the police should not disable courts into ignoring the accused’s
predisposition to commit the crime. If there is overwhelming evidence of habitual delinquency,
recidivism or plain criminal proclivity, then this must also be considered. Courts should look at
all factors to determine the predisposition of an accused to commit an offense in so far as they
are relevant to determine the validity of the defense of inducement."12

In the case at bar, SPO1 Facto, the poseur-buyer, gave the complete details of how the
transaction was conducted from beginning to end -- the negotiation between the confidential
agent and the drug dealers, the preparation made by the buy-bust team before conducting the
operation, when the informant introduced him as the supposed buyer to the drug dealers, the
exchange of the stuff and the payment between the pushers and the poseur buyer, and the
arrest of said drug dealers. SPO1 Facto positively identified accused-appellants as the drug
dealers. His testimony went as follows:

"x x x xxx xxx

Q: Can you recall, Mr. Witness, if you reported for duty on September 22, 1998?

A: Yes, ma’am.

Q: What time did you report?

A: Nine o’clock in the morning, ma’am.

Q: Now, while you were on duty was there any specific assignment given to you by your
chief?

A: Yes, sir.

Q: What was that assignment?

A: To conduct surveillance against drug traffic in Quezon City.

Q: Was there any specific person whom you were supposed to conduct surveillance on
December 22 ... September 22, 1998?

A: Yes, ma’am. The group of a certain Johnny alias Paniki group.

Q: And who ordered you or instructed you to conduct the surveillance?

A: Our team leader, Police Inspector Ramon Arsenal.

67

Q: Now, how did you know the group of Paniqui would be the subject of surveillance?

A: Through our confidential agent, ma’am.

Q: Were you able to talk to this confidential agent?

A: Yes, ma’am.

Q: And what is the gender of this confidential agent?

A: A male, ma’am.

Q: What did he tell you, if any?

A: He told me that he was able to negotiate the one kilo drug deal to a certain Junior and
Johnny, ma’am.

Q: And upon receiving this information, what did you do?

A: We informed our team leader, Police Inspector Ramon Arsenal the information of our
confidential agent, ma’am.

Q: And what happened after giving that information to your team leader?

A: Our team leader Ramon Arsenal told our CO Col. Castillo about that drug transaction.

Q: What happened next, if any?

A: Inspector Arsenal formed a team to conduct buy bust operation.

Q: Was there any briefing?

A: There was a briefing in our office, ma’am.

Q: What was taken up in that briefing?

A: In the briefing, I would pose as poseur buyer.

Q: And how much were you supposed to buy?

A: Eight Hundred Thousand Pesos per kilo, ma’am.

Q: So, what else were taken up during the briefing?

A: Inspector Arsenal furnished me ten (10) pieces of One Hundred Peso-bill. Then I
prepared the three bundles with numbers inside and make it appear, parang tingnan mo
P800,000.00, parang may boodle sa loob.
68

Q: After that ... By the way who are the members of the team?

A: P/Insp. Arsenal, P/Insp. Beasa, SPO2 Estrada, myself and others.

Q: You mentioned of a confidential informant, was he present during that briefing?

A: Yes, ma’am.

Q: And after preparing the boodle money and 10 pieces of P100-bill, what else
happened?

A: After I prepared the boodle on the night, we proceeded to the area.

Q: Where is this area?

A: Corner Baler and Miller Streets, San Francisco del Monte,

Quezon City.

Q: Were you able to reach the area?

A: Yes, sir.

Q: What happened next if any?

A: Around 10:30 p.m., 22 September 1998, minutes later, around 10:50, pm., there was
an automobile, Mitsubishi Lancer color white UET 384 arrived at the corner of Baler-
Miller Streets.

Q: Where were you at that time when that Mitsubishi Lancer arrived?

A: I was at the corner of Baler and Miller Street.

Q: Who were with you at that time?

A: Our confidential agent.

Q: How about the other members of the team where were they?

A: They were away from us at least 3 meters ... 10 meters, away from us.

Q: Ten meters away from you?

A: Yes, sir.

Q: When this Mitsubishi Lancer arrived, what happened next?

A: The driver called for me and our CI, together with the CI.
69

Q: And then what happened?

A: The CI introduced me as buyer.

Q: And then what happened after the CI introduced you to the occupants or to the driver,
what happened next?

A: After I was introduced as the buyer, I asked the driver where the stuff was. The driver
said, ‘It’s here’ and he also admonished me not to worry because their boss is there, a
certain Dodong, seated in front, in the front seat beside the driver.

Q: How many occupants were there in that Mitsubishi Lancer?

A: Three persons, ma’am.

Q: And where was the other one?

A: One at the back seat, ma’am.

Q: And when the driver told you that his boss was there, a certain Dodong, what
happened next?

A: He asked me where was the money, and I said, ‘It’s here’, and while I was holding the
money which was placed inside a plastic wrap.

Q: What happened next?

A: I told him to show me the stuff first because the money was with me.

Q: And what happened?

A: The man seated in the front seat called the man at the back and said ‘Dalhin mo dito,
bigay mo dito.’ The person at the back seat handed the green bag to the person seated
in the front seat.

Q: And then what happened?

A: And then he handed it to me sabay kaliwaan.

Q: Who handed to you the stuff?

A: The man beside the driver.

Q: And when it was handed to you, what did you do?

A: I gave the money, kaliwaan na. And then I quickly looked at the stuff and I saw that
there was white substance inside so right away I made the pre-arranged signal.
70

Q: What was that pre-arranged signal?

A: I scratched my head which means the deal was, the drug deal was positive.

Q: And when you scratched your head what did you do?

A: I introduced myself to the suspect as a police officer. And I grabbed the key of the
vehicle.

Q: Where was the key at that time?

A: It was a(t) the ignition switch.

Q: And then what did you do?

A: I said, ‘Arestado kayo’ and arrested the driver.

Q: By the way, Mr. Witness, where were you at the time, while you were talking with the
driver?

A: Beside the driver.

Q: There (sic) were still inside that car?

A: Yes, sir.

Q: And when you told the driver, ‘you are arrested,’ what else happened?

A: I got the key.

Q: And then, after that?

A: I said, ‘Arestado kayo.’

Q: After that what happened?

A: My companions alighted from the Tamaraw FX and arrested his other companions.

Q: And then what happened?

A: After that we brought them to Camp Crame, ma’am, for investigation.

Q: If you will be able to see this driver again of that vehicle with whom you had that
transaction, will you be able to identify him?

A: Yes, ma’am.

Q: If he is inside the courtroom will you please point him to us?

71

A: That one is Johnny Tadena (the person pointed to by the witness by tapping his
shoulder when asked to identify himself gave his name as Johnny Tadena).

Q: How about that man who handed to you that green bag containing the white
substance?

A: (Witness pointing to a man seated inside the courtroom who when asked to identify
himself gave his name as Segundino Valencia).

Q: How about the man seated at the back of the car who handed the green bag to Mr.
Segundino Valencia?

A: (Witness pointing to a man who when asked to identify himself gave his name as
Domingo Deroy)

xxx xxx x x x"

SPO1 Facto’s testimony withstood the rigorous cross-examination by the defense counsel and
was corroborated by SPO2 Estrada, also a member of the buy-bust team.13

Accused-appellants contend that it is incredible that the alleged vendors of the drugs would
readily do business with the alleged poseur-buyer whom they met only on September 22, 1998,
considering that the transaction involved the huge amount of P800,000.00. We are not
impressed. It has been shown that the appellants have previously negotiated with the
confidential agent. Prior to September 22, they have already closed the deal for the purchase of
drugs for the price of P800,000.00. Hence, it is not as if the appellants were dealing with
strangers. They knew the informant. When they met with the poseur-buyer, the latter was
accompanied by the informant who introduced them to each other. Nonetheless, the Court has
observed that drug pushers sell their prohibited articles to any customer, be he a stranger or
not, in private as well as in public places, whether daytime or nighttime. Indeed, drug pushers
have become increasingly daring, dangerous and openly defiant of the law. Hence, it is
immaterial whether the vendor and the vendee are familiar with each other. It is only necessary
to prove the fact of agreement and the acts constituting sale and delivery of the prohibited
drugs.14 These facts have been sufficiently proved in this case.

Accused-appellants also argue that the prosecution has not shown by clear and convincing
evidence whether the sale was voluntary or whether this was a case of instigation. The
argument deserves scant consideration. A buy-bust operation is a form of entrapment which in
recent years has been accepted as a valid means of arresting violators of the Dangerous Drugs
Law. It is commonly employed by police officers as an effective way of apprehending law
offenders in the act of committing a crime. In a buy-bust operation, the idea to commit a crime
originates from the offender, without anybody inducing or prodding him to commit the offense.
Its opposite is instigation or inducement, wherein the police or its agent lures the accused into
committing the offense in order to prosecute him. Instigation is deemed contrary to public policy
and considered an absolutory cause.15 In this case, accused-appellants, apparently, have, for
some time, been engaged in drug dealing. They were in fact the subject of a surveillance
conducted by the operatives of the PNP Narcotics Group. The police engaged the services of a
confidential informant to lead them to transact with them. The confidential agent facilitated the
meeting of accused-appellants and the poseur buyer. Hence, it was not the police nor the
confidential agent who induced accused-appellants to commit a violation of the Dangerous
72

Drugs Law. They were already violating the law and the police only used the buy-bust operation
to apprehend them in the act of unlawfully selling drugs. This is certainly a legitimate
entrapment operation and not instigation.

Finally, accused-appellants alleged that the prosecution failed to prove the existence of a
conspiracy among the three accused, as it did not show a common plan or design among them.
Again, we find otherwise. There is conspiracy when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.16 The existence of a conspiracy
need not be proved by direct evidence because it may be inferred from the parties’ conduct
indicating a common understanding among themselves with respect to the commission of the
crime. Neither is it necessary to show that two or more persons met together and entered into
an explicit agreement setting out the details of an unlawful scheme or object to be carried out. It
may be deduced from the mode or manner in which the crime was perpetrated or from the acts
of the accused showing a joint or common purpose and design, concerted action and
community of interest.17 The existence of a conspiracy among the three accused is very much
apparent from the narration of SPO1 Facto about how the transaction went. Upon the arrival of
the Mitsubishi Lancer bearing plate no. UET 384 at the corner of Baler and Miller Streets, the
driver, Tadena, called the informant and SPO1 Facto, the supposed buyer. Tadena asked
SPO1 Facto about the money. When SPO1 Facto asked for the stuff, Valencia, who was
occupying the front passenger seat, ordered Deroy, who was seated at the back of the car, to
hand him the bag containing the drugs. Valencia gave the bag to SPO1 Facto as the latter
handed him the money. This demonstrates the concerted effort of the three accused in drug
dealing. Conspiracy among them is obviously present in this case.

As regards the penalty, the Court agrees with the conclusions of the trial court, thus:

"Section 20, Article IV of R.A. 6425, as amended, provides that ‘The penalties for offense under
x x x Sections 14, 14-A, 15, and 16 of Art. III of this Act shall be applied if the dangerous drugs
involved is in any of the following quantities: 8. In the case of other dangerous drugs, the
quantity which is far beyond therapeutic requirements, as determined and promulgated by the
DDB, after consultations/hearings conducted for the purpose.’ In Section 15, the penalty is
‘reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million
pesos.’ The crime is aggravated when committed by any person or persons belonging to an
organized or syndicated crime group (Section 30, R.A. 7659; and People vs. Esparas, G.R. No.
120034, July 10, 1998). In such a case, the death penalty shall be imposed. An organized or
syndicated crime group has been defined as a group of two or more persons collaborating,
confederating or mutually helping one another for purposes of gain in the commission of any
crime.’ (Section 30, R.A. No. 7659; and People vs. Esparas, G.R. No. 120034, July 10, 1998)"

IN VIEW WHEREOF, the decision of the Regional Trial Court of Quezon City in Criminal Case
No. Q98-78878 is AFFIRMED.18

In accordance with Article 83 of the Revised Penal Code, as amended by Section 25 of

Republic Act No. 7659, upon finality of this decision, let the records of these cases be forwarded
to the Office of the President for possible exercise of executive clemency.

SO ORDERED.
73

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-11165 August 15, 1916

THE UNITED STATES, plaintiff-appellee,

vs.
MANUEL B. ASENSI, defendant-appellant.

Herrero and Masigan for appellant.

Attorney-General Avanceña for appellee.

JOHNSON, J.:

This defendant was charged with the crime of estafa, committed with the falsification of a
document. The complaint alleged:

That on and many years before the 7th day of April, 1914, the said Manuel B. Asensi
was and had been a trusted employee of the Compania General de Tabacos de
Filipinas, a foreign corporation domiciled in the city of Manila and duly authorized to
engage in business in the Philippine Islands; that, as such employee of the above-
named corporation, it was his duty to find out, at the end of every quarter, the total
amount of the sales of the goods and merchandise made during such period by the said
corporation, in order to declare and certify with his signature said amount before the
Collector of Internal Revenue or his duly authorized agents, making said declaration and
certification on the coupons attached with the patents, of which they form an integral
part, issued annually by the Collector of Internal Revenue in favor of the said
corporation; that said accused, as such employee of the above-named compania
General de Tabacos de Filipinas, was also bound to pay, with the funds of the said
corporation supplied him for said purpose, the Internal Revenue taxes which it had to
pay on the amount of the sales above-referred to; that, as the accused well knew, during
the first quarter of the year 1914, the sales of goods and merchandise made in Manila by
the said corporation, amounted, to the sum of P257,662.87, Philippine currency; that on
the 6th day of April, 1914, the said accused asked for, and obtained from, the said
corporation a check for the sum of P858.88, Philippine currency, payable to the order of
the Collector of Internal Revenue, with which to pay the said Collector of Internal
Revenue for the tax corresponding to the sales made during the first quarter of 1914,
which tax amounted exactly to P858.88 at the rate of 1/3 of one per cent of the true
74

amount of the sales referred to; that on the 7th day of April, 1914, the said accused went
to the office of the Collector of Internal Revenue, in the city of Manila, and there
presented coupon No. 1 which is an integral part of the patent to which it was attached,
No. 2751, corresponding to the year 1914, issued by the Collector of Internal Revenue to
the Compania General Tabacos de Filipinas, herein, failing to declare the truth in the
statement of the facts, at this same time and place, did, willingly, unlawfully, and
criminally state, declare and certify falsely, with his signature, that the amount of the
sales made by the Compania General de Tabacos de Filipinas (of which the said
accused was a trusted employee), during the first quarter of 1914, was P137,662.78;
and that the Internal Revenue tax which the corporation should pay on the said amount
at the rate of 1/3 of one per cent, was only P458.88; that the said accused, through the
false statement made by him in the above-mentioned coupon No. 1 of patent No. 2751,
induced and persuaded the Internal Revenue officers to believe the declarations,
statement and certification made by him in the said instrument, and the said officers,
acting under such belief, accepted, out of the sum of P858.88 stated in the check drawn
to the order of the Collector of Internal Revenue by the Compania General de Tabacos
de Filipinas and which the accused delivered to them, only the sum of P458.88 as the
tax due on the sales declared, stated and certified to by the accused himself, in the
aforesaid form, time and place, at the rate of 1/2 of one per cent, over the said amount of
the sales, returning, as they in fact did return, in cash, the difference between said
amount and that stated in the check, referred to, that is, the sum of P400, Philippine
currency; and the said accused in the time and place referred to, namely, on April 7,
1914, in the city of Manila, once he was in possession of the said sum of P400,
Philippine currency, willingly, unlawfully, and criminally and with the intent to defraud the
said Compania General de Tabacos de Filipinas, did appropriate the same for himself,
thus causing damages and injuries to the said corporation amounting to the said sum of
P400, Philippine currency, equivalent to 2,000 pesetas.

An act committed in violation of law.

Upon said complaint the defendant was duly arrested, arraigned, tried, found guilty of the crime
charged, and was sentenced by the Honorable Richard Campbell, judge, to be imprisoned for a
period of ten years and one day of presidio mayor, to pay a fine of P2,500, to suffer the
accessory penalties prescribed by law, and to pay the costs.

From that sentence the defendant appealed to this court and made several assignments of
error.

From an examination of the record we find that the following facts are clearly proven, in fat, they
are not seriously denied:

First. That the defendant had been an employee of the offended corporation for a long period
prior to the 7th of April, 1914, and during said employment had been charged with the
responsibility of taking care of various branches or departments or work of said corporation.

Second. That the offended corporation had been engaged for a long period of years in the city
of Manila in the sale of merchandise of various classes, on a large scale, and was still on
engaged during the year 1914.
75

Third. That the offended corporation being a merchant, engaged in the sale of merchandise,
was obliged, for the purpose of satisfying the requirements of the Internal Revenue Law, to
furnish a certified statement to the Collector of Internal Revenue, showing the amount of sales
for each and every quarter of each year.

Fourth. That the defendant was charged with the duty, on behalf of the said corporation, of
making out said certificate showing the amount of sales of said corporation for each and every
quarter, and of obtaining a check therefor from the cashier of said corporation, for the purpose
of paying the amount of taxes due upon said sales for a particular quarter.

Fifth. That in compliance with said duty and obligation as such employee of said offended
corporation, the defendant did, on or about the 7th of April, 1914, prepare and sign the
certificate required by the internal revenue department, in which he certified that the gross
business of said offended corporation, subject to internal-revenue tax, ending March 31, 1914,
was P137,662.87, and that the amount of money which was necessary to pay said merchant's
tax for said period was P458.88. (See Exhibit B.)

Sixth. That, notwithstanding said certificate showing the gross business subject to internal-
revenue tax, done by said offended corporation, the defendant represented to the cashier of
said offended corporation, on the back of Exhibit C, that the amount of gross business subject to
internal revenue tax was the sum of P257,662.87, and that the amount of money necessary to
pay said tax was the sum of P858,88. (See Exhibit C.)

Seventh. That upon the representation made by Exhibit C, the cashier of the offended
corporation executed and delivered to the defendant a check, marked Exhibit D, for the sum of
P858.88, made payable to the Collector of Internal Revenue, for the purpose of purchasing the
stamps or paying the tax which was due, upon the representation made by the defendant in
Exhibit C. (See Exhibit C.)

Eighth. That later the defendant, with said certificate Exhibit B, and said check, Exhibit D, went
to the office of the Collector of Internal Revenue, and there purchased the number of stamps
sufficient to pay the tax upon the gross amount of business, represented by said Exhibit B, by
delivering to the Collector of Internal Revenue the check Exhibit D. The certificate (Exhibit B)
showed that the amount of taxes due, for which stamps had to be purchased, amounted to
P458.88. The Internal Revenue Collector delivered to the defendant stamps amounting to
P458.88, and paid to him in ash the difference between said amount and the amount of said
check, or the sum of P400.

Ninth. That the P400 received by the defendant, as indicated by the preceding paragraph, as
received through the false representation made by the defendant to the cashier of the offended
corporation and by virtue of his misrepresentation made to the cashier of said corporation.
(Exhibit C.)

Tenth. That the certificate marked Exhibit B, made by the defendant, as false, in that it
represented that the gross business of said offended corporation subject to internal-revenue tax
for the period ending March 31, 1914, was P137,662.87, and that the defendant well knew that
said amount did not represent the amount of the gross business done by said corporation.

Eleventh. That the defendant has neglected and refused to return to the offended corporation
the said P400 and has willfully appropriated the same to his own use.
76

Twelfth. That by reason of the false representations made by the defendant, not only in the
certificate marked Exhibit B, but in various others, covering a number of years, the offended
corporation as obliged to pay to the Collector of Internal Revenue a great many thousand pesos
to cover its unpaid taxes, as well as to pay a fine for its failure to comply strictly with the
provisions of the law.

The appellant, under his first assignment of error, attempts to show, and cites many provisions
of the different codes in force here in support of his argument, that there was no obligation
resting upon the defendant to make the certificate Exhibit B, and he was therefore not liable,
even admitting that he had falsified the same. The record shows that the defendant had been
designated by the offended corporation as its representative, for the purpose off ascertaining
the gross amount of business done by it, and upon which it was required by law to pay taxes for
each quarter. The corporation itself, not being able to act for itself, was under the necessity of
having an agent or representative to act for it. The defendant accepted the responsibility
imposed upon him by the offended corporation. He voluntarily assumed the obligation to
perform the duty imposed upon him, and actually undertook to perform said duty, and had, for a
number of years, made out the required certificate for and on behalf of the corporation. We do
not believe that it is within his mouth now to say that he had not been appointed to perform that
particular duty in accordance with the provisions of law. The courts will not now hear him say
that he was performing the duty thus voluntarily assumed, without authority of law. Taking into
consideration the relation of the offended corporation to the defendant, and the particular duty
which the defendant voluntarily assumed, we are of the opinion that the sentence of the lower
court should not be modified by reason of the error alleged in the first assignment.

In the second assignment the appellant argues that, inasmuch as the proof fails to show that the
offended corporation had demanded a return of the said P400, and it not appearing that the
defendant had refused to return the same, he was not guilty of the crime of estafa. The record
shows that the defendant obtained possession of the said P400 by means of fraud and false
representations. When money or property is received by means of fraud or false
representations, a demand or the return of the same is not necessary in order to constitute the
crime of estafa. Any person who, to the prejudice of another, shall convert or misappropriate
money, goods, or other personal property, received by such person for safe keeping, or on
commission, or administration, or under any other circumstances, giving rise to the obligation to
make delivery of or to return the same, etc., shall be guilty of the crime of estafa and shall be
punished in accordance with the provisions of paragraph 5 of article 535, in its relation with
article 534 of the Penal Code. Considering the fraud practiced by the defendant upon the
offended corporation and the fact that he obtained the money in question by means of false
representations, we are of the opinion and so hold, that a demand for the return of the same
and a refusal by him so to do is not a necessary prerequisite as an element of the crime
charged against the defendant. We find nothing in the second assignment of error sufficient to
justify a modification of the sentence of the lower court.

With reference to the third assignment of error, the appellant contends that the document
falsified (Exhibit B) is not a public document. The Penal Code contains no definition of what
constitutes a public document. This Court held in the case of Cacnio vs. Baens (5 Phil. Rep.,
742) that any instrument authorized by a notary public or a competent public official, with the
solemnities required by law, was a public document. We have also held that the blank forms
prepared by the Auditor of the Philippine Islands, in accordance with Act No. 90 of the Philippine
Commission, are public documents. (U. S. vs. Carrington, 5 Phil. Rep., 725.) We have also held
that a receipt issued by the department of assessments and collections of the city of Manila, for
77

taxes collected, is a public document, and one who falsified the same is guilty of the falsification
of a public document (U. S. vs. Leyson, 5 Phil. Rep., 447.)

In the case of United States vs. Mateo (5 Phil. Rep., 462) we held that a burial permit issued by
the Board of Public Health of the city of Manila is a public document, within the meaning of that
term as used in article 301 of the Penal Code.

In the case of United States vs. Vy Guico (12 Phil. Rep., 209) we held that the official receipt
prescribed by the Government to be issued upon the receipt of money for public purposes is a
public document, as that term is used in articles 300 and 301 of the Panel Code.

In the case of United States vs. Weems (7 Phil. Rep., 241) we held that an official cashbook
kept by the disbursing officer of the Coast Guard and Transportation Department, was a public
or an official document, in the sense in which those words are used in article 300 of the Penal
Code.

In the case of United States vs. Barrios (10 Phil. Rep., 366) we held that the cashbook of a
public official, in which entries are made of accounts of public moneys received, is also public
document, as that term is used in article 300 of the Penal Code.

In the case of United States vs. Vy Guico (supra), an official receipt was held to be a public
document, for the reason that it was invested with the character of an official document by
reason of the fact that it was printed in accordance with the standard forms required by the
Government.

In the present case the document in question (Exhibit B) was printed in accordance with
Schedule C and furnished to merchants, in accordance with the provisions of the law of 1904.
This form was evidently prescribed by the internal revenue department of the Government.
When presented to the internal revenue department of the Government, it became a part of the
records of that office and in our judgment is fully invested with the character of an official or
public document, as those terms are used in articles 300 and 301 of the Penal Code.

From all of the foregoing facts, we are of the opinion that the evidence adduced during the trial
of the cause shows that the defendant is guilty of the crime charged in the complaint, and
should be sentenced in accordance with the provisions of article 301 of the Penal Code, in its
relation with article 89 of the same code. The sentence of the lower court being fully sustained
by the evidence and the law, we are of the opinion and so hold that the same should be and is
hereby affirmed, with costs. So ordered.
78

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 5751 September 6, 1910

UNITED STATES, plaintiff-appellee,

vs.
LOPE ESTRAÑA, defendant-appellant.

TRENT, J.:

The complaint filed in this case is as follows:

That on the 26th of July, 1909, in the municipality of Bacolod, Province of Negros
Occidental, Philippine Islands, the said Lope Estraña, having been duly sworn as a
witness in the Court of First Instance of the said province in criminal case No. 1055,
entitled "United States vs. Gil Gamao et al.,"1 for murder, illegally, maliciously, willfully,
and falsely testified and declared, under oath, that on the 15th day of May, 1909, one
Dionisio Tambolero came to his house in Japitan, within the jurisdiction of the
municipality of Escalante, in said province, at about 7 p.m. on the said 15th day of May,
1909, and that he remained in the house of the said accused (Lope Estraña) until the
following day; when, as a matter of fact, and as accused, Lope Estraña, well knew, the
said Dionision Tambolero was not at Japitan on the said 15th day of May, 1909; all of
which was in violation of the statutes in such case made and provided.

The accused was arraigned, plead not guilty, tried, convicted, and sentenced to be confined in
the Insular penitentiary, for the period of one year and one day, and "to hereafter be incapable
of holding public office or of giving testimony in any court of the Philippine Islands," and to pay
the costs of the cause. He appealed to this court.

The Roman Catholic priest in charge of the parish in the town of Escalante, Province of
Occidental Negros, was fatally wounded on the night of May 15, 1909, and died about 5 a.m. on
the following morning. Subsequently thereto criminal case No. 1055, wherein the United States
was plaintiff and Gil Gamao et al. were defendants, charged with the assassination of the said
priest, was instituted in the Court of First Instance in the said province. The appellant, Lope
Estraña, was called as a witness for the defense in said criminal case and after being duly
sworn according to law, testified, among other things, that he was then living in the barrio of
Japitan, jurisdiction of the said town of Escalante, and that one Dionisio Tambolero came to his
house in the said barrio about 7 p.m. on May 15, 1909, and remained there all night, leaving
about 5 a.m. on the following morning. The prosecuting officers, believing this testimony to be
false, filed a complaint against the appellant, charging him with the crime of perjury. On the trial
of this case in the court below the appellant again testified that the said Tambolero passed the
night of May 15, 1909, at his house, and called as witnesses to corroborate him on this point his
wife and stepson who did in fact corroborate the testimony of the appellant, in that the said
Tambolero came to the appellant's house and passed the night of May 15, there, but they could
not specifically state the hour he left the following morning.
79

Dionisio Tambolero testified in this case that he did not know exactly where the defendant's
house is situated in the barrio of Japitan and that he never was at any time in the house of the
defendant in the said barrio; that on the morning of the 15th of May, 1909, he went to the church
in Escalante, heard mass, and returned to his house in the said town of Escalante; that at about
4 o'clock in the afternoon he returned t the sacristia, arriving there abut 5 o'clock that afternoon,
had a conversation with Natalio Inson about certain baptisms which had taken place on that
afternoon, and that on leaving the sacristia he went to the store of one Jose Nieva and
remained there until about 6.30 or 7 o'clock in the evening; that on leaving this store he returned
to his own house and later went to the house of his compadre; that he and his family did not
sleep in his own house on the night of May 15 on account of it being used for the storage of
tobacco, but that they did sleep in the next house, which was owned by an employee of his; that
the next morning, when he was informed by a policeman named Clemente Magallon of what
happened to the priest on the night before, he went direct to the convent, arriving there a few
minutes after 5 o'clock; that within one-half hour after he arrived at the convent Gregorio
Tudanca gave him some money and sent him to a Chinese store to buy nails to be used in
making a casket for the deceased priest.

According to the testimony of this witness he did not leave the town of Escalante at any time
during the night of May 15, 1909. He was in the sacristia of the church at 4 o'clock on the
afternoon of May 15, and was at the convent the following morning just a few minutes after 5
o'clock. The testimony of this witness as to the time he was at the sacristia on the afternoon of
the 15th of May is corroborated with reference to the time he went to the convent on the
following morning is corroborated in every particular by the testimony of Gregorio Tudanca,
Celedonia Samonte, and Vicente Olmedo, all of whom testified positively that they saw the said
Tambolero at the convent about 5 o'clock on the morning of the 16th of May assisting in the
preparation of the body of the deceased priest for interment. So it has been conclusively
established that Dionisio Tambolero did not go to the house of the appellant in the barrio of
Japitan on May 15, neither did he spend the night of the 15th of May in the appellant's house.
Considering the distance from the appellant's house to the town of Escalante, which requires at
least two and one-half hours, either by land or water, and the difficulties to be encountered in
making this journey, it was a physical impossibility for Tambolero to have left the house of the
appellant at the time stated by him (the appellant) and to have arrived at the convent at the time
he appeared there to assist in the burial of the priest. The appellant, Lope Estraña, did therefore
knowingly and intentionally testify falsely, under oath, before a legally constituted tribunal, when
he swore that Tambolero passed the night of May 15 in his (appellant's) house.

The prosecution in this case is based on the said false testimony of the appellant given in
criminal case No. 1055. It may be inferred that Dionisio Tambolero was a material witness for
the prosecution in said criminal case No. 1055. If said Tambolero did, in fact, testify as a witness
for the prosecution in that case, the record of the case at bar fails to disclose what his testimony
was. Tambolero did not state that he was a witness in the said murder case (No. 1055), neither
did he make any reference to what he knew, if anything, about the commission of that murder;
but on the contrary, reading his testimony alone, it would appear that he knew nothing about the
facts surrounding the commission of that crime, as he stated that after leaving the Chinese store
he went to his own house, slept in the house of one of his employees, and was informed the
following morning by a policeman that the murder had been committed. The only reference to
the testimony of Tambolero in said murder case appears in the appellant's brief, wherein his
counsel states that "In said case (referring to criminal case No. 1055) a witness for the
prosecution, called Dionisio Tambolero, testified that on the night of May 15, 1909, when the
murder was committed he saw Mauricio Gamao, with a bolo in his hand, come out of the lower
80

part of the convent." (Mauricio Gamao was one of the defendants charged with the
assassination of the priest in case No. 1055.) If this statement of counsel for the appellant be
accepted as true, hen Tambolero did testify that he saw one of the defendants in that case (No.
1055) on the night of the murder leaving the lower part of the convent with a bolo in his hand.
This statement of counsel will be considered later.

Counsel for the appellant insists that the court below should have dismissed this case for the
reason that the facts alleged in the complaint do not constitute the crime of perjury as defined
and punished by Act No. 1697, basing his contention on the ground that in order to sustain a
conviction under said Act it was necessary to show that the appellant had testified twice about a
certain matter, his latter testimony testified once he should have been charged with the crime of
false swearing (falso testimonio), under the provisions of Chapter VI of the Penal Code.

Section 3 of the Act No. 1697 is as follows:

Any person who, having taken an oath before a competent tribunal, officer, or person, in
any case in which a law of the Philippine Islands authorizes an oath to be administered,
that he will testify, declare, depose, or certify truly, or that any written testimony,
declaration, deposition, or certificate by him subscribed is true, willfully and contrary to
such oath states or subscribes any material matter which he does not believe to be true,
is guilty of perjury, and shall be punished by a fine of not more than two thousand pesos
and by imprisonment for not more than five years; and shall, moreover, thereafter be
incapable of holding any public office or of giving testimony in any court of the Philippine
Islands until such time as the judgment against him is reversed.

This section specifically provides that any person who has taken an oath before a competent
tribunal that he will testify truly, or that any written testimony by him subscribed is true, willfully
and contrary to such oath, states or subscribes to any material matter which he does not believe
to be true, is guilty of perjury. This section does not impliedly require as an essential element of
the crime of perjury that a defendant who is prosecuted for having violated these provisions
should have testified twice in any case or in any investigation, his second testimony being
contradictory of his first, but he can be charged and convicted of the crime of perjury if he
willfully testifies, under oath, as provided in said section, to any material matter which he does
not believe to be true.

In the case of the United States vs. Concepcion (13 Phil. Rep., 424), the defendants were
inspectors of the election board in the municipality of Calibo, Province of Capiz, in the election
for Delegates held on the 31st of July, 1907. The defendants were accused and convicted for
having violated the provisions of the Election Law, in that they refused to inscribe the name of
one Esteban Leocario without just cause. The point in controversy in said case was whether or
not Esteban Leocario appeared before the inspectors (the accused) in order to have his name
registered in the electoral list. The accused were convicted of having violated the provisions of
the Election Law and on appeal to this court the sentence and judgment of the lower court was
affirmed. The defendants having testified in that case that the said Esteban Leocario did not
appear before them on the day alleged, to have his name registered as an elector, the
prosecution filed a complaint against the said defendants charging them with the crime of
perjury. The fact in controversy in both cases was only one, namely, the appearance or
nonappearance of Esteban Leocario before the election inspector. The defendants having been
convicted of the crime of perjury, they appealed, and this court, in passing upon the questions
involved, said (pp. 425, 429):
81

The important question in the case, however, is whether this offense is to be punished
by the provision of the Penal Code, articles 318 and following, or whether these articles
have been impliedly repealed by section 3 of Act No. 1697. If the case falls within the
provisions of the Penal Code and those provisions are still in force, the judgment must
be reversed, because this case for perjury was tried and decided in the court below
before the testimony was given.

xxx xxx xxx

Our conclusion is that the articles of the Penal Code relating to perjury have been
repealed, and that the crime is now defined and punished by section 3 of Act No. 1697.

So the reason given by counsel for the appellant as to the sufficiency of the allegations in the
complaint is untenable, but there is a good reason why the complaint is insufficient in law, and
that is that there is no allegation in this complaint that the testimony of the appellant in criminal
case No. 1055 was material to the issues involved in said case. This question apparently
escaped the attention of the trial court, the prosecuting officers, and counsel for the appellant. It
is not mentioned anywhere in the record, nor the brief's filed in this court.

As we have said, the appellant willfully and contrary to the oath which he had taken, testified in
said criminal case No. 1055 that Tambolero came to his house about 7 p.m. on May 15 and
remained there until 5 a.m. of the next day. This testimony was false, but the record does not
disclose (aside from the statement of the counsel before mentioned) whether or not this false
testimony did affect, or could have in any way affected, the question involved in said murder
case.

It is now necessary to determine whether or not the appellant is guilty of the crime of perjury
under section 3 of Act No. 1697, above quoted (the provisions of the Penal Code with reference
to false testimony having been repealed by Act No. 1697), when it is not alleged in the
complaint, nor does it appear from the record, that the false testimony given by the appellant in
said criminal case No. 1055 was material to the issues involved therein.

In the absence of a statute to the contrary, it is well settled that an indictment for perjury must
show conclusively that the testimony given or assertion made by the defendant on the trial on
which he was sworn or it will be fatally defective. This may be done either by a direct allegation
that it was material, or by the allegation of facts from which its materiality will appear. (30 Cyc.,
1433, and U. S. vs. Singleton, 54 Fed. Rep., 488; U. S. vs. Cowing, 25 Fed. Cas., No. 14880, 4
Cranch C. C., 613; Hembree vs. State, 52 Ga., 242; State vs. Anderson, 103 Ind., 170 State vs.
Gibson, 26 La. Ann., 71; State vs. Williams, 60 Kan., 837; People vs. Ah Bean, 77 Cal., 12;
Gibson vs. State, 47 Fla., 16; State vs. Cunningham, 66 Iowa, 94; People vs. Collier, 1 Mich.,
137; Wood vs. People, 59 N. Y., 117; Buller vs. State, 33 Tex. Cr., 551, and numerous other
cases cited.)

No objections to the sufficiency of the complaint were made in the court below, and it is now
well settled that it is not error for this court to refuse to sustain such objections taken for the first
time on appeal when the fatal defects in the complaint are supplied by competent proof. (Serra
vs. Mortiga, 204 U. S., 470, reported in 11 Phil. Rep., 762.)

The complaint in the case at bar is fatally defective for the want of an allegation that the
testimony, alleged to be false, was material to the issues involved in the murder case. Our
82

statute (section 3 of Act No. 1697, supra) specifically makes materiality an essential element of
the crime of perjury and without this the crime can not legally exists. As no objection to the
sufficiency of the complaint was raised this fatal defect could have been supplied by competent
testimony on the trial.

The materiality of a matter sworn to must be established by evidence and can not be left to the
presumption or inference. (30 Cyc., 1443, and Nelson vs. State vs. Aikens, 32 Iowa, 403; wood
vs. People, 59 N. Y., 117; Garrett vs. State, 37 Tex. Cr., 198.)

The term "material matter" means the main fact which was the subject of the inquiry, or any
circumstance which tends to prove that fact, or any fact or circumstance which tends to
corroborate or strengthen the testimony relative to the subject of the inquiry, or which
legitimately affects the credit of any witness who testifies. (In re Franklin County, 5 Ohio S. and
C. PI. Dec. 691; 7 Ohio, N. P., 450; People vs. Green well, 5 Utah, 112, 13 Pac., 89.)

By the common law perjury is the willful and corrupt taking of a false oath, lawfully administered
in a judicial proceeding or the course of justice in regard to a matter material to the issue or
point of inquiry. (30 Cyc., 1399, and cases cited therein.)

This definition of perjury, as modified by statute, may be more accurately defined to be the
willful and corrupt assertion of a falsehood, under oath or information administered by authority
of law, in a material matter, the offense being enlarged and made to extend to other false oaths
than those taken in the course of judicial proceedings. (30 Cyc. 1400, and cases cited.)

In the case of the State vs. Hattaway (10 Am., Dec., 580) one Shackleford having indicted for
stealing a cow and afterwards discharged, brought an action against the prosecutor for
malicious prosecution. In this action Hattaway was called as a witness and testified that
Shackleford purchased the cow in question from one Carter, and that he was present at the
time. Being asked where he lived at the time, he said, "Near Carter's; perhaps within 100 yards;"
whereas it was proved that he did not live in the State. The perjury assigned was his false
testimony as to where he lived. The trial court instructed the jury that the testimony was not
material so as to constitute perjury, but the jury thought otherwise and found the defendant
guilty. The defendant then moved to set aside the verdict as contrary to the law, and the court in
passing upon this motion said (p. 581):

It seems to be agreed by all the writers on criminal law, that one ingredient in the crime
of perjury is that the oath relate to some matter material to the question in issue: . . .
There can be no doubt but that an extrajudicial oath, or one relating to a matter utterly
immaterial, or even an impious oath, taken in idle conversation, may be as offensive in
the eye of justice. But there are many offenses against morality and religion which are
not cognizable in courts of justice. For such offense, a man is answerable only to his
God, and not to the laws of his country. . . .

There is no offense the general character of which is better understood than that of
perjury; and no point better settled, perhaps, than that the oath must relate to some fact
material to the issue.

There is a distinction between perjury and false swearing; the one is stubborn and corrupt, while
the other is simply not true, lacking the elements which go to constitute the crime of perjury.
(Miller vs. State, 15 Fla., 577.)
83

Section 3 of Act No. 1697 is a copy, with the necessary changes only, of section 5392 of the
Revised Statutes of the United States. This section (5392) is as follows:

Every person who, having taken an oath before a competent tribunal, officer, or person,
in any case in which a law of the United States authorizes an oath to be administered,
that he will testify, declare, depose, or certify truly, or that any written testimony,
declaration, deposition, or certificate by him subscribed is true, willfully and contrary to
such oaths states or subscribed is true, is guilty of perjury, which he does not believe to
be true, is guilty of perjury, and shall be punished by a fine of not more than two
thousand dollars, and by imprisonment, at hard labor, not more than five years; and
shall, moreover, thereafter be incapable of giving testimony in any court of the United
States until such time as the judgment against him is reversed.

The essential parts of this section (5392) and section 3 of that Act No. 1697 are exactly the
same. It is also true that section 3 of our perjury law is practically the same as that of nearly all
of the States of the Union wherein materiality is made, by statute, an element of the crime.

An essential element of the offense created by the statute (section 5392, Rev. Stat.) is the
materiality of the matter charged to have been falsely stated. (U. S. vs. Landsberg, 23 Fed.
Rep., 585.)

In some jurisdictions the prosecution of perjury is continued until the same proceedings in which
the perjury is alleged to have been committed has been ended, but under our law (Act No.
1697) it is not necessary that the proceeding in which the perjury was committed should be
terminated before prosecution for that crime is commenced.
(U. S. vs. Concepcion, supra.) The contrary rule obtained for prosecutions under the provisions
of the penal code. (U. S. vs. Opinion, 6 Phil. Rep., 662; and U. S. vs. Adolfo, 12 Phil. Rep., 296.)

Where materiality is made by statute, as in Act No. 1697, an essential element of the crime of
perjury, the doctrine of the courts that it must be shown by competent proof that the false
testimony was material to the issues involved, is settle beyond question. This doctrine pervades
the entire adjudged law on the subject. "Whatever we move in this department of our
jurisprudence we come in contact with it. We can no more escape from it than from the
atmosphere which surrounds us."

Aside from the statement of counsel in his brief, heretofore referred to, the prosecution has
failed to establish the legal guilt of the accused of the crime of perjury, inasmuch as it has not
been proven in any manner that the false testimony of the appellant was material in the murder
case.

We shall now determine in what way, if any, the said statement of counsel can affect the guilt of
the accused. As we have said, he has not committed a crime (if this statement of counsel does
not affect the result) for which he can be punished under the law in force in this jurisdiction. In
order to sustain a conviction based on a fatally defective complaint, the defects must be
supplied by competent proof. Counsel in his printed brief in this court states that the witness
Tambolero testified in said murder case that when the murder was committed he saw one of the
defendants come out of the lower part of the convent with a bolo in his hands. This is not a
confession, as there is a marked difference between a confession and such a statement, but
this is purely a statement by counsel made in the appellate court. It is more than probable that
the appellant himself knows nothing of this statement; no doubt he has never seen the brief filed
84

in this case. So such a statement made for the first time on appeal is not competent proof to
established the guilt of the appellant. when such guilt must depend solely upon the said
statement. Counsel for appellant was not authorized by his client to make this statement.
In the case of Sweet Clayton vs. State (4 Tex. App., 515), George Spears and Sweet
Calyton were indicated in the district court of Uvalde, Texas, for the crime of conveying, or
causing to be conveyed, into the jail of Uvalde County, certain instruments for the purpose of
aiding two prisoners to make their escape. A motion for the arrest of the judgment was made in
the court of appeals, based on the ground of the insufficiency of the indictment. The court did
not sustain the contention of counsel for the defendants, but on its own motion reversed the
judgment on another ground which was not raised by counsel and which referred to the
admissions made by defendant's counsel, and in passing upon this question the court, speaking
through Mr. Justice White, said (p. 518):
The charge of the court, which was otherwise unexceptionable, presents an error which
will necessitate a reversal of the case. In the fourth subdivision of the charge the jury are
told that "it is admitted by the defendant's counsel that John Woods and Lark Calyton
were prisoners legally confined in the county jail of Unvalde County, on an accusation of
felony, to wit, theft of a cow." As was said in the case of Nels vs. The State: The
prisoner's counsel had no authority to make any statement or admission to supply the
place or have the force of evidence against him. No confession of theirs could bind or
affect him. Their admission could not in law prejudice or affect his rights; nor could they
be in any wise jeopardized by the assumption of any grounds whatever upon which his
defense may have been placed by his counsel. Whether those grounds were correct or
incorrect, true or false, was wholly immaterial. That was not the question for the
consideration of the jury, whose duty it was to decide the question of the guilt or
innocence upon the law as given them by the court, and the evidence as given by the
witnesses, irrespective of any admissions by the prisoner's counsel, or any grounds
upon which they may have rested his defense.
In this case, defendant's counsel no doubt admitted in open court, at the time the defendants
were on trial and in their presence, that the said Woods and Clayton were prisoners legally
confined. It does not appear that the defendants made any objections to the said admission.
Notwithstanding all these facts the court reversed the judgment solely for this reason.
In the case at bar we do not find it necessary to go as far as the Texas court did, for the reason
that the statement of counsel for the appellant was not made in the trial court and this record
fails to disclose whether said statement was made in the presence of the accused; but it does
conclusively show that the same was made for the first time in the printed brief on appeal. So
such a statement can not be accepted as competent proof to supply the fatal defects in the
complaint and form the basis upon which a conviction can be entered.
Our conclusions are, therefore, that the appellant is not guilty of the crime of perjury for the
reasons above set forth. The judgment is reversed and the appellant acquitted, with costs de
officio.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 17925 March 28, 1922

85

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
EVARISTO ABAYA, defendant-appellant.

Quirino & Belmonte for appellant.

Acting Attorney-General Tuason for appellee.

OSTRAND, J.:

The evidence in the present case shows that at the time hereinafter mentioned, the defendant
was the chief clerk in the office of the district engineer of Ilocos Sur. On July 16, 1921, he was
cited subpoena to appear before the district auditor of the same province to testify in an
investigation of certain items in the accounts of the district engineer. It appears that the
investigation was within the jurisdiction of the auditor's office and that the officials conducting
the investigation were legally authorized to take the testimony and administer oaths in
connection with the matter.

The defendant appeared in obedience to the subpoena but declined to make oath as a witness
or to testify without the permission of his immediate superior, the district engineer, who was
absent at that time. The district auditor reported the incident to the Court of First Instance for
contempt proceedings in accordance with the last paragraph of section 580 of the
Administrative Code, and the provincial fiscal thereupon filed the following complaint against the
defendant:

That on the 16th day of July, 1921, the acting district auditor of Ilocos Sur, Felipe
Jimenez, issued a subpoena addressed to Evaristo Abaya, a resident of the municipality
of Vigan, Ilocos Sur, commanding him to appear before the said acting auditor on the
said 16th day of July, 1921, at 11 o'clock in the morning, to testify in a matter to be
investigated in his office; that the aforesaid Evaristo Abaya did appear in the office of the
auditor in the place, and on the date and hour stated in the subpoena, but willfully,
unlawfully, and maliciously refused to testify when lawfully required to do so, thereby
rendering it impossible for the said auditor to proceed with the investigation he was
under obligation to make of certain matters that were awaiting investigation in his office.

All contrary to section 580 of the Administrative Code in connection with sections 231 of
232 of the Code of Civil Procedure.

The court, upon hearing, found the defendant guilty as charged and sentenced him to pay a fine
of P25 and the costs. The case is now before this court upon appeal from that sentence.

We do not think an appeal to this court lies in the present case. Section 580 of the
Administrative Code reads:

When authority to take testimony or evidence is conferred upon an administrative officer

or upon any nonjudicial person, committee, or other body, such authority shall be
understood to comprehend the right to administer oaths and summon witnesses and
shall include authority to require the production of documents under a subpoena duces
tecum or otherwise, subject in all respects to the same restrictions and qualifications as
apply in judicial proceedings of a similar character.
86

Any one who, without lawful excuse, fails to appear upon summons issued under the
authority of the preceding paragraph or who, appearing before any individual or body
exercising the power therein defined, refuses to make oath, give testimony, or produce
documents for inspection, when thereunto lawfully required, shall be subject to discipline
as in case of contempt of court and upon application of the individual or body exercising
the power in question shall be dealth with by the judge of first instance having jurisdiction
of the case in the manner provided by law.

As will be seen, refusal to make oath or to testify before an administrative officer or body is
delay with as if such proceeding falls under section 231 of the Code of Civil Procedure, which
reads as follows:

A Court of First Instance or a judge of such court a chambers, may punish summarily, by
fine not exceeding two hundred pesos, or by imprisonment not exceeding ten days, or
both, a person guilty of misbehavior in the presence of or so near the court or judge as
to obstruct the administration of justice, including the refusal of a person present in court
to be sworn as a witness or to answer as a witness when lawfully required.

The only provision for the revision by the Supreme Court of contempt proceedings in the Court
of First Instance is found in section 240 of the Code of Civil Procedure, which reads:

The judgment and orders of a Court of First Instance, made in cases of contempt, except
in cases arising under section two hundred and thirty-one, may be reviewed by the
Supreme Court; but execution of the judgment and orders shall not be suspended until
there is filed by the person in contempt, in the court rendering the judgment or making
the order, an obligation with sureties to the acceptance of the judge, in an amount to be
by him fixed, and conditioned that if the judgment be against him he will abide and
perform the order or judgment. But such review shall be had only after final judgment in
the action in the Court of First Instance, and when the cause has regularly passed to the
Supreme Court by bill of exceptions, as in this act provided.

It will be noted that cases of contempt arising under section 231, such as the present, are
expressly excepted from the operation of the section last quoted. Such cases are punished
summarily and it was clearly not the intention of the legislators that they should be appealable.
The fact that in the trial of the present case the court below may have observed greater formality
than that ordinarily required in summary proceedings does not, of course, alter the character of
the offense charged or affect the question of the appealability of the judgment.

The appeal is therefore dismissed with the costs against the appellant. So ordered.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-6294 February 10, 1911

87

THE UNITED STATES, plaintiff-appellee,

vs.
LEONCIO BALLENA, defendant-appellant.

Buencamino, Diokno, Mapa, Buencamino jr., Platon and Lontok for appellant.
Attorney-General Villamor for appellee.

TRENT, J.:

On the 21st of September, 1909, there was tried in the Court of First Instance of the
subprovince of Masbate criminal case No. 163, entitled "United States vs. Ana Ramirez," in
which the defendant was charged with the crime of perjury. The basis of this prosecution was
the false testimony given by the defendant in a certain criminal case tried in that court wherein
one Ciriaco Pellejera was defendant, charged with homicide, in that the said Pellejera did, by
means of blows, cause the death of the husband of Ana Ramirez. In this homicide case Ana
Ramirez was called as a witness, and, after being duly sworn, testified that her husband died of
fever and that during his illness, which lasted more than two weeks, she observed no
contusions or other injuries on his body. She denied having testified under oath before the
provincial fiscal in the town of Dimasalang, contrary to her testimony in this case, and she also
denied having been in the house of one Jose Largo for the purpose of testifying with reference
to the death of her husband. Whereas, as a matter of fact, she did testify, under oath, before the
said fiscal, in that town, that her husband died as a direct result of the blows inflicted by
Pellejera and that his death occurred within three days after having received these blows. Ana
Ramirez was found guilty as charged and sentenced accordingly.

In the trial of this perjury case on Estefania Barruga, mother of the defendant Ana, was a
witness for the defendant, and at the instigation of one Leoncio Ballena she testified that the
fiscal, Señor Bailon, at the time he was in Dimasalang making the investigation into the cause of
the death of Ana's husband, attempted to rape her daughter Ana, and asked for the hand of the
girl in marriage, but she did not desire to accept this proposition of the fiscal because he was a
married man.

Subsequently thereto, and on the 29th of September, 1909, the fiscal filed an information in the
Court of First Instance of that province against the said Leoncio Ballena, charging him with the
crime of subornation of perjury. Upon this complaint the defendant was duly tried, found guilty,
and sentenced to six month's imprisonment, to pay a fine of P500, to the corresponding
subsidiary imprisonment is case of insolvency, to the accessory penalties provided for by law,
and to pay the costs. From this sentence and judgment the defendant appealed, and now insists
that the testimony by given by Estefania Barruga in that perjury case was immaterial to the
issues involved therein. If this contention be true, the defendant is not guilty.

There are certain well-defined and indispensable requisites which must be established in every
case of subornation of perjury before an accused person, charged with the commission of this
crime, can be convicted. Every essential element constituting the crime of perjury must be
established by competent testimony. The prosecution must show the nature of the proceedings
in which the alleged perjury was committed, the court, or officer, in which, or before whom, the
false oath was taken; that the witness was duly sworn; that the testimony was material, and
false; that the defendant knowingly and willfully procured another to swear falsely, and that the
witness suborned did testify under circumstances rendering him guilty of perjury.
88

In the case at bar the record shows beyond any question of a doubt that the witness Barruga,
after being duly sworn, did knowingly and willfully testify falsely in a criminal case before a duly
constituted tribunal; that this witness so testified at the instigation of the defendant Ballena; and
that the defendant knew that the testimony given by the witness Barruga was false. The witness
so informed the defendant. Notwithstanding this information, the defendant strongly insisted that
by the witness Barruga testifying that the fiscal committed those acts would be the only was to
save her daughter from imprisonment. The defendant not only knowingly and willfully induced
this witness to swear falsely, but he did so maliciously, as it appears from the record that he was
an enemy of the fiscal at that time, the fiscal having prosecuted him previous to this trial. So the
only question to be determined is, as we have said, Was the testimony of Barruga material to
the issues involved in that criminal case against her daughter for perjury? Materiality is an
essential element in the crime of perjury. (U. S. vs. Estraña, 16 Phil. Rep., 520.) It, therefore,
necessarily follows that materiality is likewise an indispensable requisite in the crime of
subornation of perjury, as the latter is derived from the former.

The term 'material matter' means the main fact which was the subject of the inquiry, or
any circumstance which tends to prove that fact, or any fact, or circumstance, which
tends to corroborate or strengthen the testimony relative to such inquiry, or which
legitimately affects the credit of any witness who testifies. (Quoted with approval in U. S.
vs. Estraña, supra.)

In the criminal case in which the witness Barruga gave that false testimony, the main question
involved was whether or not Ana Ramirez testified before the provincial fiscal that her husband
died as a result of the blows inflicted by Ciriaco Pellejera, as she had testified in the trial of the
case against Pellejera that she did not so testify before the fiscal. It is clear that the false
testimony of Ana Ramirez against Pellejera was material. In the trial of the case against Ana for
perjury there was presented a question of fact as to whether or not Ana testified, under oath,
before the fiscal in that investigation that her husband did in fact die as a result of the wounds
inflicted by Pellejera. The court found this to be true. It was important to know whether or not the
fiscal, at the time Ana testified before him, attempted to rape her or asked her mother for
permission to marry her. If the fiscal had committed these acts they would have constituted a
strong circumstance showing the innocence of Ana. The fiscal was the moving party in the
perjury case and it was upon his sworn complaint that Ana was prosecuted. If he should have
attempted to prosecute Ana after having committed these acts the court would not only have
disbelieved the fiscal, testifying as a witness, but it would have looked upon the whole
prosecution as a fabrication.

The judgment appealed from being in accordance with the law and the merits of the case, same
is hereby affirmed, with costs against the defendant. So ordered.

THE UNITED STATES, plaintiff-appellee,

vs.
MANUEL SAMANIEGO and JUANA BENEDICTO DE PEREZ, defendants-appellants.

Republic of the Philippines

Supreme Court
Manila
En Banc
89

G.R. No. L-5115

29 November

Joaquin Rodriguez Serra for appellant.

Office of the Solicitor General Harvey for appellee.

MORELAND, J.:

On the 20th day of December, 1907, the following information was presented to the Court of First
Instance of the city of Manila against the defendants in this case:

That on or about 25th day of November, 1907, in the city of Manila, Philippine Islands, the said
Manuel Samaniego did then and there willfully, unlawfully, and feloniously lie with and have the
sexual intercourse with the said accused, Juana Benedicto de Perez, who was then and there,
as the said accused, a married woman and the lawfully wedded wife of Jose Perez, being then
and there a married woman and the lawfully wedded wife of the said Jose Perez Siguenza, did
then and there willfully, unlawfully, and feloniously lie with and have sexual intercourse with the
said accused, Manuel Samaniego.

The defendants were arrested under the said information and were confined in Bilibid, the said
Samaniego on the 21st day of December, 1907, and the said Juana Benedicto de Perez on the
26th of the same month. after the arrest of the said defendants, Juana Benedicto de Perez, at
the instance of the prosecuting attorney, was examined by three physicians for the purpose of
determining her mental condition. On the 27th day of December, 1907, the doctors made their
report to the Court of First Instance, expressing the opinion that the said Juana Benedicto de
Perez was mentally deranged. On the 7th day of January, 1908, the defendants were tried on
the charge of adultery, as presented in said information, and, after the introduction of the proofs
attorney and the trial court believed that the evidence was insufficient to warrant the conviction
of either of the defendants, and they were both accordingly acquitted of that charge. In the
judgment acquitting the defendants the court included permission to the prosecuting attorney to
file against either or both of the said defendants a new information charging them with the crime
defined in article 441 of the Penal Code. On the 8th day of January, 1908, pursuant to such
permission, the prosecuting attorney presented against both of the defendants an information
charging them with the crime mentioned in said article, as follows:

That on and for many weeks prior to the 27th day of November, 1907, in the city of Manila,
Philippine Islands. the said Juana Juana Benedicto De Perez was a married woman, and that
the said Manuel Samaniego knew that she was married and united in the bonds of matrimony
with and was the legitimate consort of Jose Perez Siguenza; that during the period of time
above expressed the said Manuel Samaniego and Juana Benedicto de Perez, willfully, illegally,
and criminally and scandalously, without having any matrimonial tie between them, habitually
appeared together in public places and frequented together places of recreation, suspicious
places, vacant houses, and houses of bad repute, in the daytime as well as in the nighttime; and
lewdly and indecently went to the bed together in the house of the husband of the said Juana
Benedicto de Perez during the late hours of the night, dressed only in their night clothes, and in
decorously, indecently, and immodestly embraced each other and caressed each other in the
presence of the family, children, and servants of the said husband of Juana Benedicto de Perez;
all with public scandal and with scandal to the community, and with shame and humiliation to
the husband and family of the said Juana Benedicto de Perez.
90

After the presentation of this information, it appearing that the proofs under the charge therein
contained would be the same as were those under the charge in the information first herein set
forth, the prosecuting attorney and the attorneys for the defendants agreed to submit and did
submit the case to the court for final determination upon the proofs already taken in the trial on
the charge of February, 1908, the trial court rendered a decision in which he found the
defendants guilty of the crime charged, condemning the defendant Samaniego to the penalty of
arresto mayor in its maximum degree and the ordering the defendant Juana Benedicto de Perez
confined in an asylum for the insane until the further order of the court. On the same day the
defendants excepted to said decision and made a motion for a new trial. On the 12th day of
February said court, upon its own motion, and, so far as appears of record, without notice to or
consent of the defendants or their attorneys made an order reopening said case “for the
purpose only, “ as expressed in the order, “ of receiving evidence as to the publicity of the acts
charged in the complaint.” On the 15th day of April, following, additional evidence was taken in
the case and used by the court as the basis for a further judgment in the action. This was done
over the objections and exception of defendant’s attorneys. On the 18th day of April the courts
rendered a decision affirming the judgment rendered by him on the 5th day of February in the
same case. In the same decision he denied defendant’s motion for a new trial.

The witnesses for the prosecution during the trial of the defendants on the charge made in the
first information, viz, that of adultery, were Jose Perez, the husband of Juana Benedicto de
Perez, three of his children, and his cochero. The husband testified that Juana, after having
lived with him for more than twenty years, and having borne him more than five children,
expressed the desire to separate from him on account of the physical abuse and ill treatment
which she had received and was receiving at his hands. He testified further that he himself
desired to terminate his marital relations with her and that he wanted a divorce; and, as a
preliminary step to that end, we obtained her arrest at the hands of the police, who, at his
request, conducted her in a patrol wagon publicly through the streets of the city of Manila to an
asylum for the insane, where she was detained and imprisoned against her will. He declared
further that the reason why he thus humiliated and disgraced her and deprived her of her liberty
was his ardent desire to save her soul; that, in ordering her arrest and reclusion, he was acting
under the advice and counsel of various lawyers and doctors. He further testified that, after her
arrest, she many times implored him to give her back her liberty and permit her to return to her
family; and that, during one of such supplications, she admitted to him that the defendant
Samaniego was her friend, but, at the same time, denied that he had ever taken advantage of
that friendship in any way whatever.

In attempting to prove the adultery alleged in the information, the prosecution presented as
witnesses the persons above mentioned, viz Caridad Perez, daughter of the defendant Juana;
Rafael Perez, a student of medicine, 18 years of age, son of the defendant Juana; Concepcion
Perez, 12 years of age, daughter of the defendant Juana; together with the cochero of the
family, all of whom lived with the accused, Juana, and her husband at No. 257 Calle Nozaleda,
Manila.

According to the testimony of these witnesses, the kitchen and the toilet of the house, no,. 257
Nozalada, are situated on the ground floor. Here slept the cochero in a bed called by the family
a bench. This was the only bed in the lower part of the house which could possibly be used for
any purpose.

On the night if the 6th of November, 1907, the accused, Juana Benedicto de Perez,
accompanied by her daughters, attended a dance given by a friend. The other accused,
91

Samaniego, was also present. Juana and her daughters returned home late at night. There
were then present in the house the accused, Juana Benedicto de Perez; her three daughters,
Caridad, Rosario, and Conchita, and a friend of Conchita; her son Rafael; a younger son,
Manolo; and the cochero. When the mother and the daughters who and attended the dance with
her were preparing for bed, Conchita discovered that there was a stranger in the lower part of
the house and by her cries brought the household to the spot. She declares in her testimony
that when she first saw the stranger he was near the cochero’s bed and while she was watching
the movements of the stranger, her mother went below and appeared to be talking with him; that
not for a moment did she lose sight of her mother during all the occurrence.

The cochero testified that the stranger was Samaniego and that he came first to the cochero’s
bed and talked with him a while, but afterwards the cochero went to asleep, and later, on
hearing the cries of Conchita, he saw Samaniego trying to conceal himself in the kitchen and
also observed that the caused, Juana Benedicto de Perez, was going up and down the stairs.

The married daughter, Caridad, who, it appears, was not at the dance, testified that, when
Conchita informed the family that a stranger was in the lower part of the house, she awoke her
brother Rafael, who accompanied her below, where they found the defendant Samaniego,
dressed only in his drawers; that she gave him a blow in the face and ordered him immediately
to quit the house; that he asked her pardon and requested permission to put on his clothes; that
permission to do so was refused and she and her brother ejected him from the house by force
and later the cochero handed him his clothes over the wall.

Caridad also testified that Samaniego was once at the house and talked with her mother though
the window from the street, and on that occasion her mother delivered to him a pawn ticket; that
once when she and her mother were in a carromata on the streets the defendant approached
them and spoke to her mother. The testimony of Rafael shows that one morning, as he was
returning from the hospital in Quiapo, he saw the defendant Samaniego on foot near the
carromata of his mother in the Botanical Garden talking to her.

Luisa Avesilla testified that the accused, Juana Benedicto de Perez, pais the board of
Samaniego for three months in a restaurant where she was cashier, and that on one occasion
Juana ate with Samaniego in the restaurant. On that occasion she was accompanied by her
grandson.

The cochero testified that he frequently had as passengers in the carromata the two defendants;
that on one occasion he had waited for them while they went to a house in Calle Cervantes, and
on another occasion they had gone into a house on Calle Malacañang, the witness supposing
that the house was unoccupied because the accused, Juana, had told him that she was looking
for a house to rent; that the witness at no time observed anything improper in the conduct or
deportment of the two defendants. There is no proof whatever that these were places of bad
repute or that any of them were unoccupied.

Upon the proofs above stated, which are all of the proofs adduced in the trial on the charge of
adultery and are the same proofs upon which the defendants were acquitted of that charge, the
prosecuting attorney recommended that the defendants be convicted of the crime defined in
article 441 of the Penal Code, of which they stood charged, and the court thereupon convicted
them thereof.
92

The acts complained of lack many of the elements essential to bring them within the purview of
the article of the Penal Code invoked by the prosecution. Every act that was in anywise public
fails entirely of those qualities which offend modesty and good morals by “grievous scandal or
enormity.” The occurrence at the residence on the night of the 6th of November did not have that
publicity which is required by the article of the Penal Code referred to (U. S. vs. Catajay, 6 Phil.
Rep., 398; supreme court of Spain, April 13, 1885, December 14, 1903, and January 27, 1908;
Viada, vol. 3, p. 130.)

The evidence introduced on the reopening adds nothing to the case already made by the
prosecution. The case was reopened for a particular purpose and the evidence to be
introduced, if any, was restricted to a particular condition, viz, the “publicity or non-publicity of
the acts charged in the complaint.” On the reopening, evidence was presented by the
prosecution in relation to the alleged occurrence between the defendants in Plaza Palacio.
Concerning this incident testimony had already been given on the trial by the witness Rafael
Perez. Testimony was also given on the reopening by the same witness as to an occurrence
between the defendants one morning in the Botanical Garden. In relation to this same event he
had already given this testimony on the trial. His evidence as to these two events given on the
reopening of the case is wholly inconsistent with, if not absolutely contradictory of, his testimony
in relation to the same events given on the trial. Such testimony can have no weight.

The other testimony given on the reopening by this witness and the testimony of the witness
Amadeo Pacheco can have no bearing or weight in the decision of this case because such
testimony relates to the acts and relations between the defendants which are not “charged in
the complaint” and concerning which no evidence whatever had been offered on the trial.

In the judgment of this court the evidence fails to show the defendants guilty of the crime
charged.

The judgments of conviction of the trial court is, therefore, reversed, the defendants acquitted
and their discharge from custody ordered.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-20569 October 29, 1923

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
J. J. KOTTINGER, defendant-appellant.

Fisher, Dewitt, Perkins and Brady for appellant.

Attorney-General Villa-Real for appellee.
93

MALCOLM, J.:

The question to be here decided is whether or not pictures portraying the inhabitants of
the country in native dress and as they appear and can be seen in the regions in which they
live, are absence or indecent. Surprising as it may seem, the question is one of first impression
not alone in the Philippine Islands, but in the United States, Great Britain, and elsewhere. This
will explain why a case which otherwise would be heard and voted in Division has been
submitted to the court in banc for decision.

On November 24, 1922, detective Juan Tolentino raided the premises known as Camera
Supply Co. at 110 Escolta, Manila. He found and confiscated the post-cards which subsequently
were used as evidence against J. J. Kottinger, the manager of the company.

Out of these facts arose the criminal prosecution of J. J. Kottinger in the Court of First
Instance of Manila. The information filed in court charged him with having kept for sale in the
store of the Camera Supply Co., obscene and indecedent pictures, in violation of section 12 of
Act No. 277. To this information, the defendant interposed a demurrer based upon the ground
that the facts alleged therein did not constitute an offense and were not contrary to law; but trial
court overruled the demurrer and the defendant duly excepted thereto. Following the
presentation of evidence by the Government and the defense, judgment was rendered finding
the defendant guilty of the offense charged and sentencing him to pay a fine of P50 with
subsidiary imprisonment in case of insolvency, and the costs.

The five errors assigned by defendant-appellant in this court divide themselves into two
general issues. The first point sustained by counsel for the appellant is in nature a technical
objection, growing out of the defendant's demurrer. The second point, in reality the decesive
issue, is as suggested in the beginning of the decision. We will take upon the assignments of
errors as thus classified in order.

Act No. 277 is the Philippine Libel Law. But included therein is a section, No. 12, making
obscene or indecent publications misdemeanors. Said section 12 which, it is contended by the
Government, has here been violated, and which, appellant argues, does not apply to the
information and the facts, reads as follow:

Any person who writes, composes, stereotypes, prints, publishes, sells, or keeps
for sale, distributes, or exhibits any obscene or indecent writing, paper, book, or other
matter, or who designs, copies, draws, engraves, paints, or otherwise prepares any
obscene picture or print, or who moulds, cuts, casts, or otherwise makes any obscene or
indecent figure, or who writes, composes, or prints any notice or advertisement of any
such writing, paper, book, print, or figure shall be guilty of a misdemeanor and punished
by a fine of not exceeding one thousand dollars or by imprisonment not exceeding one
year, or both.

Counsel has gone to the trouble to make a careful analysis of section 12 of the Libel Law
which is intended to bear out his thesis, first, that section 12 does not prohibit the taking, selling,
and publishing of alleged obscene and indecent pictures and prints, and second, that the
information in this case charges no offense prohibited by section 12. Recall, however, that the
law provides punishment, among other things, for any person who keeps for sale or exhibits any
94

absence or indecent writing, paper, book, or other matter, and that the information charges the
defendant, among other things, with having wilfully and feloniously kept for sale, distribution, or
exhibition, obscene and indecent pictures.

The phrase in the law "or other matter", was apparently added as a sort of "catch-all."
While limited to that which is of the same kind as its antecedent, it is intended to cover kindred
subjects. The rule of ejusdem generis invoked by counsel is by no means a rule of universal
application and should be made to carry out, not to defeat, the legislative intent. Even if the
phrase "or other matter" be cobstrued to mean "or other matter of like kind," pictures and
postcards are not so far unrelated to writings, papers, and books, as not to be covered by the
general words (Commonwealth vs. Dejardin [1878], 126 Mass., 46; 30 Am. Rep., 652; Brown
vs. Corbin [1889], 40 Minn., 508).

The line of argumentation is more refined that practical. Once conceded that section 12 of
Act No. 277 does not cover the present case, there yet remain for application article 571, No. 2,
of the penal code, and section 730 of the Revised Ordinances of the City of Manila. The section
of the Revised Ordinances cited is most specific when it provides in part that no person shall
"exhibit, circulate, distribute, sell, offer or expose for sale, or give or deliver to another, or cause
the same to be done, any lewd, indecent, or absence book, picture, pamphlet, card, print, paper,
writing, mould, cast, figure, or any other thing."

While admittedly the information is lacking in precision and while the content of section 12
of the Libel Law is not as inclusive as it might be, we yet conclude that the information is not
fatally defective, and that said section 12 covers the alleged facts.

We come now to decide the main issue. We repeat that our own researches have
confirmed the statement of counsel that no one parrallel case be found. We must perforce
reason from the general to the specific and from universal principle to actual fact.

The pictures which it is argued offend against the law on account of being obscene and
indecent, disclose six different postures of non-Christian inhabitants of the Philippines. Exhibit A
carries the legend "Philippines, Bontoc Woman." Exhibit A-1 is a picture of five young boys and
carries the legend "Greetings from the Philippines." Exhibit A-2 has the legend "Ifugao Belle,
Philippines. Greetings from the Philippines." Exhibit A-3 has the legend "Igorot Girl, Rice Field
Costume." Exhibit A-4 has the legend "Kalinga Girls, Philippines. Exhibit A-5 has the legend
"Moros Philippines."

The prosecution produced no evidence proving the postcards obscene and indecent
because it thought the post-cards themselves the best evidence of that fact. The fiscal admitted
in open court "that those pictures represented the natives (non-Christians) in their native dress."
The defendant, on the other hand, attempted to show that the pictures as true to life. Dr. H.
Otley Beyer, Professor in the University of the Philippines, corroborated by other witnesses,
testified from his studies in various parts of the Islands, such as the Mountain Province, Abra,
Palawan, and Mindanao and Sulu, that none of the pictures represented poses which he had
not observed on various occasions, and that the costumes worn by the people in the pictures
are the true costumes regularly worn by them. Are such pictures obscene or indecent?

The word "obscene" ands the term "obscenity" may be defined as meaning something
offensive to chastify, decency, or delicacy. "Indeceny" is an act against behavior and a just
delicacy. The test ordinarily followed by the courts in determining whether a particular
95

publication or other thing is obscene within the meaning of the statutes, is whether the tendency
of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such
immoral influences and into whose hands a publication or other article charged as being
obscene may fall. Another test of obscenity is that which shocks the ordinary and common
sense of men as an indecency, (29 Cyc., 1315; 8 R. C. L., 312.)

The Philippine statute does not attempt to define obscene or indecent pictures, writings,
papers, or books. But the words "obscene or indecent" are themselves descriptive. They are
words in common used and every person of average intelligence understand their meaning.
Indeed, beyond the evidence furnished by the pictures themselves, there is but little scope for
proof bearing on the issue of obscenity or indecency. Whether a picture is obscene or indecent
must depend upon the circumstances of the case. (People vs. Muller [1884], 96 N. Y., 408; 48
Am. Rep., 635.)

Considerable light can be thrown on the subject by turning to the Federal Laws prohibiting
the use of the mails for obscene matter and prohibiting the importation into the Philippine
Islands of articles, etc., of obscene or indecent character. (U. S. Rev. Stat., art. 3893; 36 stat. at
L., 135; 7 Fed. Stat. Ann., 1194, sec. 3[b].)

"Obscene," as used in the Federal Statutes making it a criminal offense to place in the
mails any obscene, lewd, or lascivious publication, according to the united States Supreme
Court and lesser Federal courts, signifies that form of immorality which has relation to sexual
impurity, and has the same meaning as is given at common law in prosecutions for obscene
libel. (Swearingen vs. U. S. [1896], 161 U. S., 446; U. S. vs. Males [1892], 51 Fed., 41; 6 Words
and Phrases, 4888, 4889.)

The case of United States vs. Harmon ([189], 45 Fed., 414), grew out of an indictment for
despositing an obscene publication in a United States post-office in violator of the Postal Law.
Judge Philips said:

The statute does not undertake to define the meaning of the terms "obscene," etc., further
than may be implied by the succeeding phrase, "or other publication of an indecent character."
On the well-organized canon of construction these words are presumed to have been employed
by the law-maker in their ordinary acceptation and use.

As they cannot be said to have acquired any technical significance as applied to

some particular matter, calling, or profession, but are terms of popular use, the court
might perhaps with propriety leave their import to the presumed intelligence of the jury. A
standard dictionary says that "obscene" mean "offensive to chastity and decency;
expressing or presenting to the mind or view something which delicacy, purity, and
decency forbid to be exposed." This mere dictionary definition may be extended or
amplified by the courts in actual practice, preserving, however, its essential though, and
having always due regard to the popular and proper sense in which the legislature
employed the term. Chief Justice Cockburn, in Rex vs. Hicklin (L. R. 3 Q. B., 360), said:
"The test of obscenity is this: Where the tendency of the matter charged as obscene is to
deprave and corrupt those whose minds are open to such immoral influences, and into
whose hands a publication of this sort may fall;" and where "it who suggest to the minds
of the young of either sex, or even to persons of more advanced years, thoughts of the
most impure and libidinous character." So, also, it has been held that a book is obscene
which is offensive to decency or chastity, which is immodest, which is indelicate, impure,
96

causing lewd thoughts of an immoral tendency." U. S. vs. Bennet, 16 Blatchf., 338.

Judge Thayer, in U. S. vs. Clarke, 38 Fed. Rep., 732, observed:

"The word "obscene" ordinarily means something which is offensive to

chastity; something that is foul or filthy, and for that reason is offensive to pure-
minded persons. That is the meaning of the word in the concrete; but when used,
as in the statute, to describe the character of a book, pamphlet, or paper, it
means containing immodest and indecent matter, the reading whereof would
have a tendency to deprave and corrupt the minds of those into whose hands the
publication might fall whose minds are open to such immoral influences."

Laws of this character are made for society in the aggregate, and not in particular.
So, while there may be individuals and societies of men and women of peculiar motions
are idiosyncrasies, whose moral sense would neither be depraved nor offended by the
publication now under consideration, yet the exceptional sensibility, or want of
sensibility, of such cannot be allowed as a standard by which its obscenity or indecency
is to be tested. Rather is the test, what is the judgment of the aggregate sense of the
community reached by it? What is its probable, reasonable effect on the sense of
decency, purity, and chastity of society, extending to the family, made up of men and
women, young boys and girls, — the family, which is the common nursery of mankind,
the foundation rock upon which the state reposes?

. . . To the pure all things are pure, is too poetical for the actualities of practical life.
There is in the popular conception and heart such a thing as modesty. It was born in the
Garden of Eden. After Adam and Eve ate of the fruit of the tree of knowledge they
passed from the condition of perfectibility which some people nowadays aspire to, and,
their eyes being opened, they discerned that there was both good and evil; "and they
knew that they were naked; and they sewed fig leaves together, and made themselves
aprons." From that day to this civilized man has carried with him the sense of shame, —
the feeling that there were some things on which the eye — the mind — should not look;
and where men and women become so depraved by the use, or so insensate from
perverted education, that they will not evil their eyes, nor hold their tongues, the
government should perform the office for them in protection of the social compact and
the body politic.

As above intimated, the Federal statue prohibits the importation or shipment into the
Philippine Islands of the following: "Articles, books, pamphlets, printed matter, manuscripts,
typewritten matter, paintings, illustrations, figures or objects of obscene or indecent character or
subversive of public order." There are, however, in the record, copies of reputable magazines
which circulate freely thruout the United States and other countries, and which are admitted into
Philippines without question, containing illustrations identical in nature to those forming the
basis of the prosecution at bar. Publications of the Philippine Government have also been
offered in evidence such as Barton's "Ifugao Law," the "Philippine Journal of Science" for
October, 1906, and the Reports of the Philippine Commission for 1903, 1912, and 1913, in
which are found illustrations either exactly the same or nearly akin to those which are now
impugned.
It appears therefore that a national standard has been set up by the Congress of the
United States. Tested by that standard, it would be extremely doubtful if the pictures here
challenged would be held obscene or indecent by any state of Federal court. It would be
97

particularly unwise to sanction a different type of censorship in the Philippines that in the United
States, or for that matter in the rest of the world.
The pictures in question merely depict persons as they actually live, without attempted
presentation of persons in unusual postures or dress. The aggregate judgment of the Philippine
community, the moral sense of all the people in the Philippines, would not be shocked by
photographs of this type. We are convicted that the post-card pictures in this case cannot be
characterized as offensive to chastity, or foul, or filthy.
We readily understand the laudable motives which moved the Government to initiate this
prosecution. We fully appreciate the sentiments of colleagues who take a different view of the
case. We would be the last to offend the sensibilities of the Filipino people and the sanction
anything which would hold them up to ridicule in the eyes of mankind. But we emphasize that
we are not deciding a question in political theory or in social ethics. We are dealing with a legal
question predicated on a legal fact, and on this question and fact, we reach the conclusion that
there has not been proved a violation of section 12 of the Libel Law. When other cases
predicated on other states of facts are brought to our attention, we will decide them as they
arise.
We seem to recall the statement of counsel that the proprietor of the photographic
concern whom he represents would on his own initiative place suitable and explicit inscriptions
on the pictures so that no one may be misled as to them. Indeed, he might even go further and
out of consideration for the natural sensibilities of his customers, withdraw from sale certain
pictures which can be pointed out to him.
We hold that pictures portraying the inhabitants of the country in native dress and as they
appear and can be seen in the regions in which they live, are not obscene or indecent within the
meaning of the Libel Law. Disagreeing therefore with the appellant on his technical argument
but agreeing with him on his main contention, it becomes our duty to order the dismissal of the
information. 1awph!l.net
Judgment is reversed, the information is dismissed, and the defendant-appellant is
acquitted with all costs de oficio. So ordered.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 1018 February 17, 1903

THE UNITED STATES, complainant-appellee,

vs.
IGNACIO CRUZ, defendant-appellant.

Fermin Mariano, for appellant.

Office of the Solicitor-General Araneta, for appellee.

TORRES, J.:

The evidence shows that the defendant and two other members of the Insular Police entered
the house where Antonia Evangelista, a girl of 17 years of age, lived with he grandmother,
Carmen Tayag, at about 7 o'clock in the evening of the 30th of March, 1902, in search of the
girl's father, who was at that time in Manila. The defendant and his companions took Carmen
98

downstairs and tied her to a "chico" tree, went upstairs where the girl Antonia had been left
alone, and the three assailants then ravished her in succession, having stretched her upon the
floor and stuffed a handkerchief into her mouth so as to prevent her from calling for help. The
foregoing facts were corroborated by the witness Carmen Tayag and by Nicolasa Cruz, a
neighbor of the injured party, who, from the window of her house, saw the girl Antonia in the
hands of two men inside the house where the occurrence took place, and shortly after heard the
voice of the girl who was crying for help. Her cries were also heard by Paula Cruz, a relative of
the victim, who lived near by. She came out of her house and unsuccessfully attempted to
prevent the assailants from taking the girl Antonia away. The latter was carried to the barrio of
Sucat and there, according to the testimony of the accused, who pleaded not guilty, she was
again ravished by three other policemen.

These facts, as established by the testimony of creditable witnesses and the damaging
evidence furnished by the statements of the defendant, constitute the crime of rape defined and
punished under article 438 of the Penal Code, inasmuch as the accused, in order to outrage the
girl, used violence and intimidation, having been further aided by two others who, like himself,
were armed with guns, they being members of the Insular Police.

The defendant heard the evidence of the complaining witness, who stated in her testimony that
she knew the accused because he was a resident of the same town and gave a full account of
the occurrence, and asked the girl if she was not mistaken in what she had stated to the court,
to which she replied that all that she had testified to was true. The accused then testified that he
did not rape the girl at all, but that the two constables, Catiple and Luis, did. He also stated that
she was not raped at her house, but at the barrio of Sucat, where she was ravished by the two
policemen already mentioned, one Batunbacal and Corporal Tagayum. These statements, in
connection with those of the witnesses who either saw or heard of the occurrence and who also
heard the noise caused by the struggle between the assailants and the victim, as well as the
cries of the latter, prove conclusively the guilt of the accused, who was unable to present any
exculpative evidence or adduce any in his defense.

In the commission of the offense in question there must be appreciated the attendance of the
aggravating circumstance No. 20 of article 10 of the Penal Code, there being no mitigating
circumstances to be considered, as the offense was committed in the dwelling of the injured
party, and without provocation. The adequate penalty must therefore be imposed in the
minimum grade of the maximum degree.

For the reasons stated the judgment should, in our opinion, be reversed and the defendant
sentenced to seventeen years four months and one day of imprisonment, and to suffer the
corresponding accessory penalty of temporary absolute disqualification, being subject to the
surveillance of the authorities during his term of confinement and for a like period after the
expiration thereof. Defendant shall pay to the injured party an indemnification in the amount of
300 Mexican pesos, being further obliged to recognize the issue that may be born, if its origin
should not be a bar thereto, to support the same, and to pay the costs of this appeal. The judge,
upon the filing of the necessary information for the five other crimes of rape enumerated on
page 28 of the record, shall proceed in each case according to law. So ordered.