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Cadaveric spasm. Crim Law Article 11. 7.1 People V genoas EN BANC Body on the 2nd stage of decomposition.

Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its sockets and tongue slightly protrudes out of the mouth. [G.R. No. 135981. January 15, 2004] Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in] laceration of the brain, spontaneous rupture of the blood vessels on the posterior surface of the brain, laceration of the dura and meningeal vessels producing severe intracranial hemorrhage. Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the epidermis. Abdomen distended w/ gas. Trunk bloated. Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the battered woman syndrome (BWS), which allegedly constitutes self-defense. Under the proven facts, however, she is not entitled to complete exoneration because there was no unlawful aggression -- no immediate and unexpected attack on her by her batterer-husband at the time she shot him. Absent unlawful aggression, there can be no self-defense, complete or incomplete. But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of cumulative provocation that broke down her psychological resistance and self-control. This psychological paralysis she suffered diminished her will power, thereby entitling her to the mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code. In addition, appellant should also be credited with the extenuating circumstance of having acted upon an impulse so powerful as to have naturally produced passion and obfuscation. The acute battering she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she was eight months pregnant with their child, overwhelmed her and put her in the aforesaid emotional and mental state, which overcame her reason and impelled her to vindicate her life and her unborn childs. Considering the presence of these two mitigating circumstances arising from BWS, as well as the benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody on parole, because she has already served the minimum period of her penalty while under detention during the pendency of this case. The Facts which caused his death.[4] With the assistance of her counsel,[5] appellant pleaded not guilty during her arraignment on March 3, 1997.[6] In due course, she was tried for and convicted of parricide.

PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant.

DECISION PANGANIBAN, J.:

Version of the Prosecution

The Office of the Solicitor General (OSG) summarizes the prosecutions version of the facts in this wise: Appellant and Ben Genosa were united in marriage on November 19, 1983 in Ormoc City. Thereafter, they lived with the parents of Ben in their house at Isabel, Leyte. For a time, Bens younger brother, Alex, and his wife lived with them too. Sometime in 1995, however, appellant and Ben rented from Steban Matiga a house at Barangay Bilwang, Isabel, Leyte where they lived with their two children, namely: John Marben and Earl Pierre. On November 15, 1995, Ben and Arturo Basobas went to a cockfight after receiving their salary. They each had two (2) bottles of beer before heading home. Arturo would pass Bens house before reaching his. When they arrived at the house of Ben, he found out that appellant had gone to Isabel, Leyte to look for him. Ben went inside his house, while Arturo went to a store across it, waiting until 9:00 in the evening for the masiaorunner to place a bet. Arturo did not see appellant arrive but on his way home passing the side of the Genosas rented house, he heard her say I wont hesitate to kill you to which Ben replied Why kill me when I am innocent? That was the last time Arturo saw Ben alive. Arturo also noticed that since then, the Genosas rented house appeared uninhabited and was always closed. On November 16, 1995, appellant asked Erlinda Paderog, her close friend and neighbor living about fifty (50) meters from her house, to look after her pig because she was going to Cebu for a pregnancy check-up. Appellant likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie Dayandayan who unfortunately had no money to buy it. That same day, about 12:15 in the afternoon, Joseph Valida was waiting for a bus going to Ormoc when he saw appellant going out of their house with her two kids in tow, each one carrying a bag, locking the gate and taking her children to the waiting area where he was. Joseph lived about fifty (50) meters behind the Genosas rented house. Joseph, appellant and her children rode the same bus to Ormoc. They had no conversation as Joseph noticed that appellant did not want to talk to him. On November 18, 1995, the neighbors of Steban Matiga told him about the foul odor emanating from his house being rented by Ben and appellant. Steban went there to find out the cause of the stench but the house was locked from the inside. Since he did not have a duplicate key with him, Steban destroyed the gate padlock with a borrowed steel saw. He was able to get inside through the kitchen door but only after destroying a window to reach a hook that locked it. Alone, Steban went inside the unlocked bedroom where the offensive smell was coming from. There, he saw the lifeless body of Ben lying on his side on the bed covered with a blanket. He was only in his briefs with injuries at the back of his

The Case

For automatic review before this Court is the September 25, 1998 Decision[1] of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond reasonable doubt of parricide. The decretal portion of the Decision reads: WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a generic aggravating circumstance and none of mitigating circumstance, hereby sentences the accused with the penalty of DEATH. The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine currency as moral damages.[2] The Information[3] charged appellant with parricide as follows: That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA, her legitimate husband, with the use of a hard deadly weapon, which the accused had provided herself for the purpose, [causing] the following wounds, to wit:

head. Seeing this, Steban went out of the house and sent word to the mother of Ben about his sons misfortune. Later that day, Iluminada Genosa, the mother of Ben, identified the dead body as that of [her] son. Meanwhile, in the morning of the same day, SPO3 Leo Acodesin, then assigned at the police station at Isabel, Leyte, received a report regarding the foul smell at the Genosas rented house. Together with SPO1 Millares, SPO1 Colon, and Dr. Refelina Cerillo, SPO3 Acodesin proceeded to the house and went inside the bedroom where they found the dead body of Ben lying on his side wrapped with a bedsheet. There was blood at the nape of Ben who only had his briefs on. SPO3 Acodesin found in one corner at the side of an aparador a metal pipe about two (2) meters from where Ben was, leaning against a wall. The metal pipe measured three (3) feet and six (6) inches long with a diameter of one and half (1 1/2) inches. It had an open end without a stop valve with a red stain at one end. The bedroom was not in disarray. About 10:00 that same morning, the cadaver of Ben, because of its stench, had to be taken outside at the back of the house before the postmortem examination was conducted by Dr. Cerillo in the presence of the police. A municipal health officer at Isabel, Leyte responsible for medico-legal cases, Dr. Cerillo found that Ben had been dead for two to three days and his body was already decomposing. The postmortem examination of Dr. Cerillo yielded the findings quoted in the Information for parricide later filed against appellant. She concluded that the cause of Bens death was cardiopulmonary ar rest secondary to severe intracranial hemorrhage due to a depressed fracture of the occipital [bone]. Appellant admitted killing Ben. She testified that going home after work on November 15, 1995, she got worried that her husband who was not home yet might have gone gambling since it was a payday. With her cousin Ecel Arao, appellant went to look for Ben at the marketplace and taverns at Isabel, Leyte but did not find him there. They found Ben drunk upon their return at the Genosas house. Ecel went home despite appellants request for her to sleep in their house. Then, Ben purportedly nagged appellant for following him, even challenging her to a fight. She allegedly ignored him and instead attended to their children who were doing their homework. Apparently disappointed with her reaction, Ben switched off the light and, with the use of a chopping knife, cut the television antenna or wire to keep her from watching television. According to appellant, Ben was about to attack her so she ran to the bedroom, but he got hold of her hands and whirled her around. She fell on the side of the bed and screamed for help. Ben left. At this point, appellant packed his clothes because she wanted him to leave. Seeing his packed clothes upon his return home, Ben allegedly flew into a rage, dragged appellant outside of the bedroom towards a drawer holding her by the neck, and told her You might as well be killed so nobody would nag me. Appellant testified that she was aware that there was a gun inside the drawer but since Ben did not have the key to it, he got a three-inch long blade cutter from his wallet. She however, smashed the arm of Ben with a pipe, causing him to drop the blade and his wallet. Appellant then smashed Ben at his nape with the pipe as he was about to pick up the blade and his wallet. She thereafter ran inside the bedroom. Appellant, however, insisted that she ended the life of her husband by shooting him. She supposedly distorted the drawer where the gun was and shot Ben. He did not die on the spot, though, but in the bedroom. [7](Citations omitted)

4. Bens brother, Alex, testified for the prosecution that he could not remember when Ben and Marivic married. He said that when Ben and Marivic quarreled, generally when Ben would come home drunk, Marivic would inflict injuries on him. He said that in one incident in 1993 he saw Marivic holding a kitchen knife after Ben had shouted for help as his left hand was covered with blood. Marivic left the house but after a week, she returned apparently having asked for Bens forgiveness. In another incident in May 22, 1994, early morning, Alex and his father apparently rushed to Bens aid again and saw blood from Bens forehead and Marivic holding an empty bottle. Ben and Marivic reconciled after Marivic had apparently again asked for Bens forgiveness. Mrs. Iluminada Genosa, Marivics mother-in-law, testified too, saying that Ben and Marivic married in 1986 or 1985 more or less here in Fatima, Ormoc City. She said as the marriage went along, Marivic became already very demanding. Mrs. Iluminada Genosa said that after the birth of Marivics two sons, there were three (3) misunderstandings. The first was when Marivic stabbed Ben with a table knife through his left arm; the second incident was on November 15, 1994, when Marivic struck Ben on the forehead using a sharp instrument until the eye was also affected. It was wounded and also the ear and her husband went to Ben to help; and the third incident was in 1995 when the couple had already transferred to the house in Bilwang and she saw that Bens hand was plastered as the bone cracked. Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention. 5. Arturo Basobas, a co-worker of Ben, testified that on November 15, 1995 After we collected our salary, we went to the cock -fighting place of ISCO. They stayed there for three (3) hours, after which they went to Uniloks and drank beer allegedly only two (2) bottles each. After drinking they bought barbeque and went to the Genosa residence. Marivic was not there. He stayed a while talking with Ben, after which he went across the road to wait for the runner and the usher of the masiao game because during that time, the hearing on masiao numbers was rampant. I was waiting for the ushers and runners so that I can place my bet. On his way home at about 9:00 in the evening, he heard the Genosas arguing. They were quarreling loudly. Outside their house was one Fredo who is used by Ben to feed his fighting cocks. Basobas testimony on the root of the quarrel, conveniently overheard by him was Marivic saying I will never hesitate to kill you, whilst Ben replied Why kill me when I am innocent. Basobas thought they were joking. He did not hear them quarreling while he was across the road from the Genosa residence. Basobas admitted that he and Ben were always at the cockpits every Saturday and Sunday. He claims that he once told Ben before when he was stricken with a bottle by Marivic Genosa that he should leave her and that Ben would always take her back after she would leave him so many times. Basobas could not remember when Marivic had hit Ben, but it was a long time that they had been quarreling. He said Ben even had a wound on the right forehead. He had known the couple for only one (1) year. 6. Marivic testified that after the first year of marriage, Ben became cruel to her and was a habitual drinker. She said he provoked her, he would slap her, sometimes he would pin her down on the bed, and sometimes beat her. These incidents happened several times and she would often run home to her parents, but Ben would follow her and seek her out, promising to change and would ask for her forgiveness. She said after she would be beaten, she would seek medical help from Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. These doctors would enter the injuries inflicted upon her by Ben into their reports. Marivic said Ben would beat her or quarrel with her every time he was drunk, at least three times a week. 7. In her defense, witnesses who were not so closely related to Marivic, testified as to the abuse and violence she received at the hands of Ben. 7.1. Mr. Joe Barrientos, a fisherman, who was a [neighbor] of the Genosas, testified that on November 15, 1995, he overheard a quarrel between Ben and Marivic. Marivic was shouting for help and through the open jalousies, he saw the spouses grappling with each other. Ben had Marivic in a choke hold. He did not do anything, but had come voluntarily to testify. (Please note this was the same night as that testified to by Arturo Busabos .[8]) 7.2. Mr. Junnie Barrientos, also a fisherman, and the brother of Mr. Joe Barrientos, testified that he heard his neighbor Marivic shouting on the night of November 15, 1995. He peeped through the window of his hut which is located beside the Genosa house and saw the spouses grappling with each other then Ben Genosa was holding with his both hands the neck of the accused, Marivic Genosa. He said after a while, Marivic was able to extricate he[r]self and enter the room of the children. After that, he went back to work as he was to go fishing that evening. He returned at 8:00 the next morning. (Again, please note that this was the same night as that testified to by Arturo Basobas ).

Version of the Defense

Appellant relates her version of the facts in this manner: 1. Marivic and Ben Genosa were allegedly married on November 19, 1983. Prior to her marriage, Marivic had graduated from San Carlos, Cebu City, obtaining a degree of Bachelor of Science in Business Administration, and was working, at the time of her husbands death, as a Secretary to the Port Managers in Ormoc City. The couple had three (3) children: John Marben, Earl Pierre and Marie Bianca. 2. Marivic and Ben had known each other since elementary school; they were neighbors in Bilwang; they were classmates; and they were third degree cousins. Both sets of parents were against their relationship, but Ben was persistent and tried to stop other suitors from courting her. Their closeness developed as he was her constant partner at fiestas. 3. After their marriage, they lived first in the home of Bens parents, together with Bens brother, Alex, in Isabel, Leyte. In the first year of marriage, Marivic and Ben lived happily. But apparently, soon thereafter, the couple would quarrel often and their fights would become violent.

7.3. Mr. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel, Leyte. His house was located about fifty (50) meters from theirs. Marivic is his niece and he knew them to be living together for 13 or 14 years. He said the couple was always quarreling. Marivic confided in him that Ben would pawn items and then would use the money to gamble. One time, he went to their house and they were quarreling. Ben was so angry, but would be pacified if somebody would come. He testified that while Ben was alive he used to gamble and when he became drunk, he would go to our house and he will say, Teody because that was what he used to call me, mokimas ta, which means lets go and look for a whore. Mr. Sarabia further testified that Ben would box his wife and I would see bruises and one time she ran to me, I noticed a wound (the witness pointed to his right breast) as according to her a knife was stricken to her. Mr. Sarabia also said that once he saw Ben had been injured too. He said he voluntarily testified only that morning. 7.4. Miss Ecel Arano, an 18-year old student, who is a cousin of Marivic, testified that in the afternoon of November 15, 1995, Marivic went to her house and asked her help to look for Ben. They searched in the market place, several taverns and some other places, but could not find him. She accompanied Marivic home. Marivic wanted her to sleep with her in the Genosa house because she might be battered by her husband. When they got to the Genosa house at about 7:00 in the evening, Miss Arano said that her husband was already there and was drunk. Miss Arano knew he was drunk because of his staggering walking and I can also detect his face. Marivic entered the house and she heard them quarrel noisily. (Again, please note that this is the same night as that testified to by Arturo Basobas) Miss Arano testified that this was not the first time Marivic had asked her to sleep in the house as Marivic would be afraid every time her husband would come home drunk. At one time when she did sleep over, she was awakened at 10:00 in the evening when Ben arrived because the couple were very noisy in the sala and I had heard something was broken like a vase. She said Marivic ran into her room and they locked the door. When Ben couldnt get in he got a chair and a knife and showed us the knife through the window grill and he scared us. She said that Marivic shouted for help, but no one came. On cross-examination, she said that when she left Marivics house on November 15, 1995, the couple were still quarreling. 7.5. Dr. Dino Caing, a physician testified that he and Marivic were coemployees at PHILPHOS, Isabel, Leyte. Marivic was his patient many times and had also received treatment from other doctors. Dr. Caing testified that from July 6, 1989 until November 9, 1995, there were six (6) episodes of physical injuries inflicted upon Marivic. These injuries were reported in his Out-Patient Chart at the PHILPHOS Hospital. The prosecution admitted the qualifications of Dr. Caing and considered him an expert witness.

a room, and got herself a job as a field researcher under the alias Marvelous Isidro; she did not tell anyone that she was leaving Leyte, she just wanted to have a safe delivery of her baby; and that she was arrested in San Pablo, Laguna. Answering questions from the Court, Marivic said that she threw the gun away; that she did not know what happened to the pipe she used to smash him once; that she was wounded by Ben on her wrist with the bolo; and that two (2) hours after she was whirled by Ben, he kicked her ass and dragged her towards the drawer when he saw that she had packed his things. 9. The body of Ben Genosa was found on November 18, 1995 after an investigation was made of the foul odor emitting from the Genosa residence. This fact was testified to by all the prosecution witnesses and some defense witnesses during the trial. 10. Dra. Refelina Y. Cerillo, a physician, was the Municipal Health Officer of Isabel, Leyte at the time of the incident, and among her responsibilities as such was to take charge of all medico-legal cases, such as the examination of cadavers and the autopsy of cadavers. Dra. Cerillo is not a forensic pathologist. She merely took the medical board exams and passed in 1986. She was called by the police to go to the Genosa residence and when she got there, she saw some police officer and neighbor around. She saw Ben Genosa, covered by a blanket, lying in a semi-prone position with his back to the door. He was wearing only a brief.

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Dra. Cerillo said that there is only one injury and that is the injury involving the skeletal area of the head which she described as a fracture. And that based on her examination, Ben had been dead 2 or 3 days. Dra. Cerillo did not testify as to what caused his death. Dra. Cerillo was not cross-examined by defense counsel. 11. The Information, dated November 14, 1996, filed against Marivic Genosa charged her with the crime of PARRICIDE committed with intent to kill, with treachery and evidence premeditation, x x x wilfully, unlawfully and feloniously attack, assault, hit and wound x x x her legitimate husband, with the use of a hard deadly weapon x x x which caused his death. 12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August 1998. 13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a JUDGMENT finding Marivic guilty beyond reasonable doubt of the crime of parricide, and further found treachery as an aggravating circumstance, thus sentencing her to the ultimate penalty of DEATH. 14. The case was elevated to this Honorable Court upon automatic review and, under date of 24 January 2000, Marivics trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as a precautionary measure, two (2) drafts of Appellants Briefs he had prepared for Marivic which, for reasons of her own, were not conformed to by her. The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of appearance of undersigned counsel. 15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office, wherein she submitted her Brief without counsels to the Court. This letter was stamp-received by the Honorable Court on 4 February 2000. 16. In the meantime, under date of 17 February 2000, and stampreceived by the Honorable Court on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION praying that the Honorable Court allow the exhumation of Ben Genosa and the re-examination of the cause of his death; allow the examination of Marivic Genosa by qualified psychologists and psychiatrists to determine her state of mind at the time she killed her husband; and finally, to allow a partial re-opening of the case a quo to take the testimony of said psychologists and psychiatrists. Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only qualified forensic pathologist in the country, who opined that the

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Dr. Caings clinical history of the tension headache and hypertention of Marivic on twenty-three (23) separate occasions was marked at Exhibits 2 and 2-B. The OPD Chart of Marivic at the Philphos Clinic which reflected all the consultations made by Marivic and the six (6) incidents of physical injuries reported was marked as Exhibit 3. On cross-examination, Dr. Caing said that he is not a psychiatrist, he could not say whether the injuries were directly related to the crime committed. He said it is only a psychiatrist who is qualified to examine the psychological make-up of the patient, whether she is capable of committing a crime or not. 7.6 Mr. Panfilo Tero, the barangay captain in the place where the Genosas resided, testified that about two (2) months before Ben died, Marivic went to his office past 8:00 in the evening. She sought his help to settle or confront the Genosa couple who were experiencing family troubles. He told Marivic to return in the morning, but he did not hear from her again and assumed that they might have settled with each other or they might have forgiven with each other.

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Marivic said she did not provoke her husband when she got home that night it was her husband who began the provocation. Marivic said she was frightened that her husband would hurt her and she wanted to make sure she would deliver her baby safely. In fact, Marivic had to be admitted later at the Rizal Medical Centre as she was suffering from eclampsia and hypertension, and the baby was born prematurely on December 1, 1995. Marivic testified that during her marriage she had tried to leave her husband at least five (5) times, but that Ben would always follow her and they would reconcile. Marivic said that the reason why Ben was violent and abusive towards her that night was because he was crazy about his recent girlfriend, Lulu x x x Rubillos. On cross-examination, Marivic insisted she shot Ben with a gun; she said that he died in the bedroom; that their quarrels could be heard by anyone passing their house; that Basobas lied in his testimony; that she left for Manila the next day, November 16, 1995; that she did not bother anyone in Manila, rented herself

description of the death wound (as culled from the post-mortem findings, Exhibit A) is more akin to a gunshot wound than a beating with a lead pipe. 17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivics URGENT OMNIBUS MOTION and remanded the case to the trial court for the reception of expert psychological and/or psychiatric opinion on the battered woman syndrome plea, within ninety (90) days from notice, and, thereafter to forthwith report to this Court the proceedings taken, together with the copies of the TSN and relevant documentary evidence, if any, submitted. 18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City. Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews were done at the Penal Institution in 1999, but that the clinical interviews and psychological assessment were done at her clinic. Dra. Dayan testified that she has been a clinical psycholo gist for twenty (20) years with her own private clinic and connected presently to the De La Salle University as a professor. Before this, she was the Head of the Psychology Department of the Assumption College; a member of the faculty of Psychology at the Ateneo de Manila University and St. Josephs College; and was the counseling psychologist of the National Defense College. She has an AB in Psychology from the University of the Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past president of the Psychological Association of the Philippines and is a member of the American Psychological Association. She is the secretary of the International Council of Psychologists from about 68 countries; a member of the Forensic Psychology Association; and a member of the ASEAN [Counseling] Association. She is actively involved with the Philippine Judicial Academy, recently lecturing on the socio-demographic and psychological profile of families involved in domestic violence and nullity cases. She was with the Davide Commission doing research about Military Psychology. She has written a book entitled Energy Global Psychology (together with Drs. Allan Tan and Allan Bernardo). The Genosa case is the first time she has testified as an expert on battered women as this is the first case of that nature. Dra. Dayan testified that for the research she conducted, on the socio demographic and psychological profile of families involved in domestic violence, and nullity cases, she looked at about 500 cases over a period of ten (10) years and discovered that there are lots of variables that cause all of this marital conflicts, from domestic violence to infidelity, to psychiatric disorder. Dra. Dayan described domestic violence to comprise of a lot of incidents of psychological abuse, verbal abuse, and emotional abuse to physical abuse and also sexual abuse.

not happening day in [and] day out. In an abnormal marital relationship, the abuse occurs day in and day out, is long lasting and even would cau se hospitalization on the victim and even death on the victim.

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Dra. Dayan said that as a result of the battery of psychological tests she administered, it was her opinion that Marivic fits the profile of a battered woman because inspite of her feeling of self-confidence which we can see at times there are really feeling (sic) of loss, such feelings of humiliation which she sees herself as damaged and as a broken person. And at the same time she still has the imprint of all the abuses that she had experienced in the past.

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Dra. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for nullity or legal separation inspite of the abuses. It was at the time of the tragedy that Marivic then thought of herself as a victim.

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19. On 9 February 2001, Dr. Alfredo Pajarillo, a physician, who has since passed away, appeared and testified before RTC-Branch 35, Ormoc City. Dr. Pajarillo was a Diplomate of the Philippine Board of Psychiatry; a Fellow of the Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association. He was in the practice of psychiatry for thirty-eight (38) years. Prior to being in private practice, he was connected with the Veterans Memorial Medical Centre where he gained his training on psychiatry and neurology. After that, he was called to active duty in the Armed Forces of the Philippines, assigned to the V. Luna Medical Center for twenty six (26) years. Prior to his retirement from government service, he obtained the rank of Brigadier General. He obtained his medical degree from the University of Santo Tomas. He was also a member of the World Association of Military Surgeons; the Quezon City Medical Society; the Cagayan Medical Society; and the Philippine Association of Military Surgeons. He authored The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy from the Period 1954 1978 which was presented twice in international congresses. He also authored The Mental Health of the Armed Forces of the Philippines 2000, which was likewise publ ished internationally and locally. He had a medical textbook published on the use of Prasepam on a Parke-Davis grant; was the first to use Enanthate (siquiline), on an E.R. Squibb grant; and he published the use of the drug Zopiclom in 1985-86. Dr. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology deals with the ailment of the brain and spinal cord enlarged. Psychology, on the other hand, is a bachelor degree and a doctorate degree; while one has to finish medicine to become a specialist in psychiatry. Even only in his 7th year as a resident in V. Luna Medical Centre, Dr. Pajarillo had already encountered a suit involving violent family relations, and testified in a case in 1964. In the Armed Forces of the Philippines, violent family disputes abound, and he has seen probably ten to twenty thousand cases. In those days, the primordial intention of therapy was reconciliation. As a result of his experience with domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City under Atty. Nenita Deproza. As such consultant, he had seen around forty (40) cases of severe domestic violence, where there is physical abuse: such as slapping, pushing, verbal abuse, battering and boxing a woman even to an unconscious state such that the woman is sometimes confined. The affliction of Post-Traumatic Stress Disorder depends on the vulnerability of the victim. Dr. Pajarillo said that if the victim is not very healthy, perhaps one episode of violence may induce the disorder; if the psychological stamina and physiologic constitutional stamina of the victim is stronger, it will take more repetitive trauma to precipitate the post -traumatic stress disorder and this x x x is very dangerous. In psychiatry, the post-traumatic stress disorder is incorporated under the anxiety neurosis or neurologic anxcietism. It is produced by overwhelming brutality, trauma.

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Dra. Dayan testified that in her studies, the battered woman usually has a very low opinion of herself. She has a self-defeating and self-sacrificing characteristics. x x x they usually think very lowly of themselves and so when the violence would happen, they usually think that they provoke it, that they were the one who precipitated the violence, they provoke their spouse to be physically, verbally and even sexually abusive to them. Dra. Dayan said that usually a battered x x x comes from a dysfunctional family or from broken homes. Dra. Dayan said that the batterer, just like the battered woman, also has a very low opinion of himself. But then emerges to have superiority complex and it comes out as being very arrogant, very hostile, very aggressive and very angry. They also had (sic) a very low tolerance for frustrations. A lot of times they are involved in vices like gambling, drinking and drugs. And they become violent. The batterer also usually comes from a dysfunctional family which over-pampers them and makes them feel entitled to do anything. Also, they see often how their parents abused each other so there is a lot of modeling of aggression in the family. Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her husband: poverty, self-blame and guilt that she provoked the violence, the cycle itself which makes her hope her husband will change, the belief in her obligations to keep the family intact at all costs for the sake of the children.

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Dra. Dayan said that abused wives react differently to the violence: some leave the house, or lock themselves in another room, or sometimes try to fight back triggering physical violence on both of them. She said that in a normal marital relationship, abuses also happen, but these are not consistent, not chronic, are

Dr. Pajarillo explained that with neurotic anxiety, the victim relives the beating or trauma as if it were real, although she is not actually being beaten at that time. She thinks of nothing but the suffering.

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A woman who suffers battery has a tendency to become neurotic, her emotional tone is unstable, and she is irritable and restless. She tends to become hard-headed and persistent. She has higher sensitivity and her self world is damaged. Dr. Pajarillo said that an abnormal family background relates to an individuals illness, such as the deprivation of the continuous care and love of the parents. As to the batterer, he normally internalizes what is around him within the environment. And it becomes his own personality. He is very competitive; he is aiming high all the time; he is so macho; he shows his strong faade but in it there are doubts in himself and prone to act without thinking.

the cause of his death; (2) the examination of appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she had killed her spouse; and (3) the inclusion of the said experts reports in the records of the case for purposes of the automatic review or, in the alternative, a partial reopening of the case for the lower court to admit the experts testimonies. On September 29, 2000, this Court issued a Resolution granting in part appellants Motion, remanding the case to the trial c ourt for the reception of expert psychological and/or psychiatric opinion on the battered woman syndrome plea; and requiring the lower court to report thereafter to this Court the proceedings taken as well as to submit copies of the TSN and additional evidence, if any. Acting on the Courts Resolution, the trial judge authorized the examination of Marivic by two clinical psychologists, Drs. Natividad Dayan [10] and Alfredo Pajarillo,[11] supposedly experts on domestic violence. Their testimonies, along with their documentary evidence, were then presented to and admitted by the lower court before finally being submitted to this Court to form part of the records of the case.[12]

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Dr. Pajarillo emphasized that even though without the presence of the precipator (sic) or the one who administered the battering, that re-experiencing of the trauma occurred (sic) because the individual cannot control it. It will just come up in her mind or in his mind.

The Issues

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xxx Appellant assigns the following alleged errors of the trial court for this Courts consideration: 1. The trial court gravely erred in promulgating an obviously hasty decision without reflecting on the evidence adduced as to self-defense. 2. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally married and that she was therefore liable for parricide. 3. The trial court gravely erred finding the cause of death to be by beating with a pipe. 4. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial and unbiased witnesses that Ben Genosa was a drunk, a gambler, a womanizer and wife-beater; and further gravely erred in concluding that Ben Genosa was a battered husband. 5. The trial court gravely erred in not requiring testimony from the children of Marivic Genosa. 6. The trial court gravely erred in concluding that Marivics flight to Manila and her subsequent apologies were indicia of guilt, instead of a clear attempt to save the life of her unborn child. 7. The trial court gravely erred in concluding that there was an aggravating circumstance of treachery. 8. The trial court gravely erred in refusing to re-evaluate the traditional elements in determining the existence of self-defense and defense of foetus in this case, thereby erroneously convicting Marivic Genosa of the crime of parricide and condemning her to the ultimate penalty of death. [13]

Dr. Pajarillo said that a woman suffering post traumatic stress disorder try to defend themselves, and primarily with knives. Usually pointed weapons or any weapon that is available in the immediate surrounding or in a hospital x x x because that abound in the household. He said a victim resorts to weapons when she has reached the lowest rock bottom of her l ife and there is no other recourse left on her but to act decisively.

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Dr. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for two (2) hours and seventeen (17) minutes. He used the psychological evaluation and social case studies as a help in forming his diagnosis. He came out with a Psychiatric Report, dated 22 January 2001.

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On cross-examination by the private prosecutor, Dr. Pajarillo said that at the time she killed her husband Marivicc mental condition was that she was re experiencing the trauma. He said that we are trying to explain scientifically that the re-experiencing of the trauma is not controlled by Marivic. It will just come in flashes and probably at that point in time that things happened when the reexperiencing of the trauma flashed in her mind. At the time he interviewed Marivic she was more subdued, she was not super alert anymore x x x she is mentally stress (sic) because of the predicament she is involved.

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20. No rebuttal evidence or testimony was presented by either the private or the public prosecutor. Thus, in accord with the Resolution of this Honorable Court, the records of the partially re-opened trial a quowere elevated.[9]

Ruling of the Trial Court

In the main, the following are the essential legal issues: (1) whether appellant acted in self-defense and in defense of her fetus; and (2) whether treachery attended the killing of Ben Genosa.

Finding the proffered theory of self-defense untenable, the RTC gave credence to the prosecution evidence that appellant had killed the deceased while he was in bed sleeping. Further, the trial court appreciated the generic aggravating circumstance of treachery, because Ben Genosa was supposedly defenseless when he was killed -- lying in bed asleep when Marivic smashed him with a pipe at the back of his head. The capital penalty having been imposed, the case was elevated to this Court for automatic review.

The Courts Ruling

The appeal is partly meritorious.

Collateral Factual Issues Supervening Circumstances The first six assigned errors raised by appellant are factual in nature, if not collateral to the resolution of the principal issues. As consistently held by this Court, the findings of the trial court on the credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be disturbed on

On February 19, 2000, appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the exhumation of Ben Genosa and the reexamination of

appeal in the absence of any showing that the trial judge gravely abused his discretion or overlooked, misunderstood or misapplied material facts or circumstances of weight and substance that could affect the outcome of the case.[14] In appellants first six assigned items, we find no grave abuse of discretion, reversible error or misappreciation of material facts that would reverse or modify the trial courts disposition of the case. In any event, we will now briefly dispose of these alleged errors of the trial court. First, we do not agree that the lower court promulgated an obviously hasty decision without reflecting on the evidence adduced as to self-defense. We note that in his 17-page Decision, Judge Fortunito L. Madrona summarized the testimonies of both the prosecution and the defense witnesses and -- on the basis of those and of the documentary evidence on record -- made his evaluation, findings and conclusions. He wrote a 3-page discourse assessing the testimony and the self-defense theory of the accused. While she, or even this Court, may not agree with the trial judges conclusions, we cannot peremptorily conclude, absent substantial evidence, that he failed to reflect on the evidence presented. Neither do we find the appealed Decision to have been made in an obviously hasty manner. The Information had been filed with the lower court on November 14, 1996. Thereafter, trial began and at least 13 hearings were held for over a year. It took the trial judge about two months from the conclusion of trial to promulgate his judgment. That he conducted the trial and resolved the case with dispatch should not be taken against him, much less used to condemn him for being unduly hasty. If at all, the dispatch with which he handled the case should be lauded. In any case, we find his actions in substantial compliance with his constitutional obligation.[15] Second, the lower court did not err in finding as a fact that Ben Genosa and appellant had been legally married, despite the non-presentation of their marriage contract. In People v. Malabago,[16] this Court held: The key element in parricide is the relationship of the offender with the victim. In the case of parricide of a spouse, the best proof of the relationship between the accused and the deceased is the marriage certificate. In the absence of a marriage certificate, however, oral evidence of the fact of marriage may be considered by the trial court if such proof is not objected to.

Appellant admits killing Ben Genosa but, to avoid criminal liability, invokes self-defense and/or defense of her unborn child. When the accused admits killing the victim, it is incumbent upon her to prove any claimed justifying circumstance by clear and convincing evidence. [21] Well-settled is the rule that in criminal cases, self-defense (and similarly, defense of a stranger or third person) shifts the burden of proof from the prosecution to the defense. [22]

The Battered Woman Syndrome

In claiming self-defense, appellant raises the novel theory of the battered woman syndrome. While new in Philippine jurisprudence, the concept has been recognized in foreign jurisdictions as a form of self-defense or, at the least, incomplete self-defense.[23] By appreciating evidence that a victim or defendant is afflicted with the syndrome, foreign courts convey their understanding of the justifiably fearful state of mind of a person who has been cyclically abused and controlled over a period of time.[24] A battered woman has been defined as a woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. Battered women include wives or women in any form of intimate relationship with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she [25] remains in the situation, she is defined as a battered woman. Battered women exhibit common personality traits, such as low selfesteem, traditional beliefs about the home, the family and the female sex role; emotional dependence upon the dominant male; the tendency to accept responsibility for the batterers actions; and false hopes that the relationship will improve.[26] More graphically, the battered woman syndrome is characterized by the so-called cycle of violence,[27] which has three phases: (1) the tension-building phase; (2) the acute battering incident; and (3) the tranquil, loving (or, at least, nonviolent) phase.[28] During the tension-building phase, minor battering occurs -- it could be verbal or slight physical abuse or another form of hostile behavior. The woman usually tries to pacify the batterer through a show of kind, nurturing behavior; or by simply staying out of his way. What actually happens is that she allows herself to be abused in ways that, to her, are comparatively minor. All she wants is to prevent the escalation of the violence exhibited by the batterer. This wish, however, proves to be double-edged, because her placatory and passive behavior legitimizes his belief that he has the right to abuse her in the first place. However, the techniques adopted by the woman in her effort to placate him are not usually successful, and the verbal and/or physical abuse worsens. Each partner senses the imminent loss of control and the growing tension and despair. Exhausted from the persistent stress, the battered woman soon withdraws emotionally. But the more she becomes emotionally unavailable, the more the batterer becomes angry, oppressive and abusive. Often, at some unpredictable point, the violence spirals out of control and leads to an acute battering incident.[29] The acute battering incident is said to be characterized by brutality, destructiveness and, sometimes, death. The battered woman deems this incident as unpredictable, yet also inevitable. During this phase, she has no control; only the batterer may put an end to the violence. Its nature can be as unpredictable as the time of its explosion, and so are his reasons for ending it. The battered woman usually realizes that she cannot reason with him, and that resistance would only exacerbate her condition. At this stage, she has a sense of detachment from the attack and the terrible pain, although she may later clearly remember every detail. Her apparent passivity in the face of acute violence may be rationalized thus: the batterer is almost always much stronger physically, and she knows from her past painful experience that it is futile to fight back. Acute battering incidents are often very savage and out of control, such that innocent bystanders or intervenors are likely to get hurt.[30] The final phase of the cycle of violence begins when the acute battering incident ends. During this tranquil period, the couple experience profound relief. On the one hand, the batterer may show a tender and nurturing behavior towards his partner. He knows that he has been viciously cruel and tries to make up for it, begging for her forgiveness and promising never to beat her again. On the other hand, the battered woman also tries to convince herself that the battery will never happen again; that her partner will change for the better; and that this good, gentle and caring man is the real person whom she loves. A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. Sensing his isolation and despair, she feels responsible for his well-being. The truth, though, is that the chances of his reforming, or seeking or receiving professional help, are very slim, especially if she remains with him. Generally, only after she leaves him does he seek professional help as a way of getting her back. Yet, it is in this phase of remorseful reconciliation that she is most thoroughly tormented psychologically.

Two of the prosecution witnesses -- namely, the mother and the brother of appellants deceased spouse -- attested in court that Ben had been married to [17] Marivic. The defense raised no objection to these testimonies. Moreover, during her direct examination, appellant herself made a judicial admission of her marriage to Ben.[18] Axiomatic is the rule that a judicial admission is conclusive upon the party making it, except only when there is a showing that (1) the admission was made through a palpable mistake, or (2) no admission was in fact made.[19] Other than merely attacking the non-presentation of the marriage contract, the defense offered no proof that the admission made by appellant in court as to the fact of her marriage to the deceased was made through a palpable mistake. Third, under the circumstances of this case, the specific or direct cause of Bens death -- whether by a gunshot or by beating with a pipe -- has no legal consequence. As the Court elucidated in its September 29, 2000 Resolution, [c]onsidering that the appellant has admitted the fact of killing her h usband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his head, the Court believes that exhumation is unnecessary, if not immaterial, to determine which of said acts actually caused the victims death . Determining which of these admitted acts caused the death is not dispositive of the guilt or defense of appellant. Fourth, we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk, gambler, womanizer and wife-beater. Until this case came to us for automatic review, appellant had not raised the novel defense of battered woman syndrome, for which such evidence may have been relevant. Her theory of selfdefense was then the crucial issue before the trial court. As will be discussed shortly, the legal requisites of self-defense under prevailing jurisprudence ostensibly appear inconsistent with the surrounding facts that led to the death of the victim. Hence, his personal character, especially his past behavior, did not constitute vital evidence at the time. Fifth, the trial court surely committed no error in not requiring testimony from appellants children. As correctly elucidated by the solicitor general, all criminal actions are prosecuted under the direction and control of the public prosecutor, in whom lies the discretion to determine which witnesses and evidence are necessary to present.[20] As the former further points out, neither the trial court nor the prosecution prevented appellant from presenting her children as witnesses. Thus, she cannot now fault the lower court for not requiring them to testify. Finally, merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life of her unborn child. Any reversible error as to the trial courts appreciation of these circumstances has little bearing on the final resolution of the case. First Legal Issue: Self-Defense and Defense of a Fetus

The illusion of absolute interdependency is well-entrenched in a battered womans psyche. In this phase, she and her batterer are indeed emotionally dependent on each other -- she for his nurturant behavior, he for her forgiveness. Underneath this miserable cycle of tension, viol ence and forgiveness, each partner may believe that it is better to die than to be separated. Neither one may really feel independent, capable of functioning without the other.[31] History of Abuse in the Present Case

A Q

Everytime he got drunk. Is it daily, weekly, monthly or how many times in a month or in a week? Three times a week. Do you mean three times a week he would beat you? Not necessarily that he would beat me but sometimes he will just quarrel me. [32]

A Q A

To show the history of violence inflicted upon appellant, the defense presented several witnesses. She herself described her heart-rending experience as follows: ATTY. TABUCANON Q A How did you describe your marriage with Ben Genosa? In the first year, I lived with him happily but in the subsequent year he was cruel to me and a behavior of habitual drinker. You said that in the subsequent year of your marriage, your husband was abusive to you and cruel. In what way was this abusive and cruelty manifested to you? He always provoke me in everything, he always slap me and sometimes he pinned me down on the bed and sometimes beat me. How many times did this happen? Several times already.

Referring to his Out-Patient Chart[33] on Marivic Genosa at the Philphos Hospital, Dr. Dino D. Caing bolstered her foregoing testimony on chronic battery in this manner: Q So, do you have a summary of those six (6) incidents which are found in the chart of your clinic? A Q A Q Yes, sir. Who prepared the list of six (6) incidents, Doctor? I did. Will you please read the physical findings together with the dates for the record. 1. May 12, 1990 - physical findings are as follows: Hematoma (R) lower eyelid and redness of eye. Attending physician: Dr. Lucero; 2. March 10, 1992 - Contusion-Hematoma (L) lower arbital area, pain and contusion (R) breast. Attending physician: Dr. Canora; 3. March 26, 1993 - Abrasion, Furuncle (L) Axilla;

A A

Q A Q A

What did you do when these things happen to you? I went away to my mother and I ran to my father and we separate each other. What was the action of Ben Genosa towards you leaving home? He is following me, after that he sought after me. What will happen when he follow you? He said he changed, he asked for forgiveness and I was convinced and after that I go to him and he said sorry. During those times that you were the recipient of such cruelty and abusive behavior by your husband, were you able to see a doctor? Yes, sir. Who are these doctors? The company physician, Dr. Dino Caing, Dr. Lucero and Dra. Cerillo. A Q 4. August 1, 1994 - Pain, mastitis (L) breast, 2 to trauma. Attending physician: Dr. Caing; 5. April 17, 1995 - Trauma, tenderness (R) Shoulder. Attending physician: Dr. Canora; and 6. June 5, 1995 - Swelling Abrasion (L) leg, multiple contusion Pregnancy. Attending physician: Dr. Canora. Among the findings, there were two (2) incidents wherein you were the attending physician, is that correct? Yes, sir. Did you actually physical examine the accused? Yes, sir. Now, going to your finding no. 3 where you were the one who attended the patient. What do you mean by abrasion furuncle left axilla? Abrasion is a skin wound usually when it comes in contact with something rough substance if force is applied. What is meant by furuncle axilla? It is secondary of the light infection over the abrasion. What is meant by pain mastitis secondary to trauma? So, in this 4th episode of physical injuries there is an inflammation of left breast. So, [pain] meaning there is tenderness. When your breast is traumatized, there is tenderness pain. So, these are objective physical injuries. Doctor?

A Q A

A Q A Q

A Q A

Q xxx xxx xxx A Q A Q A Q A You said that you saw a doctor in relation to your injuries? Yes, sir. Who inflicted these injuries? Of course my husband. Q You mean Ben Genosa? Yes, sir. Q A [Court] /to the witness Q Q A Q How frequent was the alleged cruelty that you said? A Everytime he got drunk. No, from the time that you said the cruelty or the infliction of injury inflicted on your occurred, after your marriage, from that time on, how frequent was the occurrence? Q Q A

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Were you able to talk with the patient? Yes, sir. What did she tell you? As a doctor-patient relationship, we need to know the cause of these injuries. And she told me that it was done to her by her husband. You mean, Ben Genosa?

Yes, sir.

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Probably. Can family trouble cause elevation of blood pressure, Doctor? Yes, if it is emotionally related and stressful it can cause increases in hypertension which is unfortunately does not response to the medication. In November 6, 1995, the date of the incident, did you take the blood pressure of the accused? On November 6, 1995 consultation, the blood pressure was 180/120. Is this considered hypertension? Yes, sir, severe. Considering that she was 8 months pregnant, you mean this is dangerous level of blood pressure? It was dangerous to the child or to the fetus. [34]

ATTY. TABUCANON: Q By the way Doctor, were you able to physical examine the accused sometime in the month of November, 1995 when this incident happened? As per record, yes. What was the date? Q A Q A Q It was on November 6, 1995. A So, did you actually see the accused physically? Q Yes, sir. On November 6, 1995, will you please tell this Honorable Court, was the patient pregnant? Yes, sir. Being a doctor, can you more engage at what stage of pregnancy was she? Eight (8) months pregnant. So in other words, it was an advance stage of pregnancy? Yes, sir. What was your November 6, 1995 examination, was it an examination about her pregnancy or for some other findings? No, she was admitted for hypertension headache which complicates her pregnancy. When you said admitted, meaning she was confined? Yes, sir. For how many days? One day. Where? At PHILPHOS Hospital. A A

A Q

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Another defense witness, Teodoro Sarabia, a former neighbor of the Genosas in Isabel, Leyte, testified that he had seen the couple quarreling several times; and that on some occasions Marivic would run to him with bruises, confiding that the injuries were inflicted upon her by Ben.[35] Ecel Arano also testified[36] that for a number of times she had been asked by Marivic to sleep at the Genosa house, because the latter feared that Ben would come home drunk and hurt her. On one occasion that Ecel did sleep over, she was awakened about ten oclock at night, because the couple were very noisy and I heard something was broken like a vase. Then Marivic came running into Ecels room and locked the door. Ben showed up by the window grill atop a chair, scaring them with a knife. On the afternoon of November 15, 1995, Marivic again asked her help -this time to find Ben -- but they were unable to. They returned to the Genosa home, where they found him already drunk. Again afraid that he might hurt her, Marivic asked her to sleep at their house. Seeing his state of drunkenness, Ecel hesitated; and when she heard the couple start arguing, she decided to leave. On that same night that culminated in the death of Ben Genosa, at least three other witnesses saw or heard the couple quarreling. [37] Marivic relates in detail the following backdrop of the fateful night when life was snuffed out of him, showing in the process a vivid picture of his cruelty towards her: ATTY. TABUCANON: Q Please tell this Court, can you recall the incident in November 15, 1995 in the evening? Whole morning and in the afternoon, I was in the office working then after office hours, I boarded the service bus and went to Bilwang. When I reached Bilwang, I immediately asked my son, where was his father, then my second child said, he was not home yet. I was worried because that was payday, I was anticipating that he was gambling. So while waiting for him, my eldest son arrived from school, I prepared dinner for my children. This is evening of November 15, 1995? Yes, sir. What time did Ben Genosa arrive? When he arrived, I was not there, I was in Isabel looking for him. So when he arrived you were in Isabel looking for him? Yes, sir. Did you come back to your house? Yes, sir. By the way, where was your conjugal residence situated this time? Bilwang. Is this your house or you are renting? Renting. What time were you able to come back in your residence at Bilwang?

A Q A Q

Q A Q A Q A

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Lets go back to the clinical history of Marivic Genosa. You said that you were able to examine her personally on November 6, 1995 and she was 8 months pregnant. Q A Q A

What is this all about? A Because she has this problem of tension headache secondary to hypertension and I think I have a record here, also the same period from 1989 to 1995, she had a consultation for twenty-three (23) times. For what? Tension headache. Can we say that specially during the latter consultation, that the patient had hypertension? The patient definitely had hypertension. It was refractory to our treatment. She does not response when the medication was given to her, because tension headache is more or less stress related and emotional in nature. What did you deduce of tension headache when you said is emotional in nature? From what I deduced as part of our physical examination of the patient is the family history in line of giving the root cause of what is causing this disease. So, from the moment you ask to the patient all comes from the domestic problem. You mean problem in her household?

Q A Q

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I went back around almost 8:00 oclock. What happened when you arrived in your residence? When I arrived home with my cousin Ecel whom I requested to sleep with me at that time because I had fears that he was again drunk and I was worried that he would again beat me so I requested my cousin to sleep with me, but she resisted because she had fears that the same thing will happen again last year. Who was this cousin of yours who you requested to sleep with you? Ecel Arao, the one who testified.

Q A Q A Q

How do you described this bolo? 1 1/2 feet. What was the bolo used for usually? For chopping meat. You said the children were scared, what else happened as Ben was carrying that bolo? He was about to attack me so I run to the room. What do you mean that he was about to attack you? When I attempt to run he held my hands and he whirled me and I fell to the bedside. So when he whirled you, what happened to you? I screamed for help and then he left. You said earlier that he whirled you and you fell on the bedside? Yes, sir. You screamed for help and he left, do you know where he was going? Outside perhaps to drink more. When he left what did you do in that particular time? I packed all his clothes. What was your reason in packing his clothes? I wanted him to leave us. During this time, where were your children, what were their reactions? After a couple of hours, he went back again and he got angry with me for packing his clothes, then he dragged me again of the bedroom holding my neck. You said that when Ben came back to your house, he dragged you? How did he drag you?

A Q

A Q A

A Did Ecel sleep with you in your house on that evening? No, because she expressed fears, she said her father would not allow her because of Ben. During this period November 15, 1995, were you pregnant? Q A Q A Q A Q A Q A Q A Yes, 8 months. How advance was your pregnancy? Eight (8) months. Was the baby subsequently born? A Yes, sir. Whats the name of the baby you were carrying at that time? Marie Bianca. Q What time were you able to meet personally your husband? A Yes, sir. Q What time? When I arrived home, he was there already in his usual behavior. Will you tell this Court what was his disposition? Q A He was drunk again, he was yelling in his usual unruly behavior. What was he yelling all about? His usual attitude when he got drunk. You said that when you arrived, he was drunk and yelling at you? What else did he do if any? He is nagging at me for following him and he dared me to quarrel him. What was the cause of his nagging or quarreling at you if you know? He was angry at me because I was following x x x him, looking for him. I was just worried he might be overly drunk and he would beat me again. You said that he was yelling at you, what else, did he do to you if any? He was nagging at me at that time and I just ignore him because I want to avoid trouble for fear that he will beat me again. Perhaps he was disappointed because I just ignore him of his provocation and he switch off the light and I said to him, why did you switch off the light when the children were there. At that time I was also attending to my children who were doing their assignments. He was angry with me for not answering his challenge, so he went to the kitchen and [got] a bolo and cut the antenna wire to stop me from watching television. What did he do with the bolo? He cut the antenna wire to keep me from watching T.V. What else happened after he cut the wire? He switch off the light and the children were shouting because they were scared and he was already holding the bolo. A Q A A Q Q A Q

COURT INTERPRETER: Q A Q The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck) A And he dragged me towards the door backward.

ATTY. TABUCANON: A Q A Where did he bring you? Outside the bedroom and he wanted to get something and then he kept on shouting at me that you might as well be killed so there will be nobody to nag me. So you said that he dragged you towards the drawer? Yes, sir. What is there in the drawer? I was aware that it was a gun.

Q A

Q A

COURT INTERPRETER: (At this juncture the witness started crying). ATTY. TABUCANON: Q A Q A Were you actually brought to the drawer? Yes, sir. What happened when you were brought to that drawer? He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key then he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and

Q A Q A

when he was about to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very moment everything on my mind was to pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit. COURT INTERPRETER: (The witness at this juncture is crying intensely).

The most relevant information was the tragedy that happened. The most important information were escalating abuses that she had experienced during her marital life. Before you met her in 1999 for three hours, we presume that you already knew of the facts of the case or at least you have substantial knowledge of the facts of the case? I believe I had an idea of the case, but I do not know whether I can consider them as substantial.

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ATTY. TABUCANON: Q Q A Q A Q A Q A Q Talking of drawer, is this drawer outside your room? Outside. In what part of the house? Dining. Where were the children during that time? My children were already asleep. A You mean they were inside the room? Yes, sir. You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like? Three (3) inches long and 1/2 inch wide. Is it a flexible blade? Its a cutter. Q Q A Q A Q A How do you describe the blade, is it sharp both edges? A Yes, because he once used it to me. How did he do it? He wanted to cut my throat. With the same blade? Yes, sir, that was the object used when he intimidate me. [38] A Q Yes, sir. What I remember was that there is no problem about being battered, it really happened. Being an expert witness, our jurisprudence is not complete on saying this matter. I think that is the first time that we have this in the Philippines, what is your opinion? Sir, my opinion is, she is really a battered wife and in this kind happened, it was really a self-defense. I also believe that there had been provocation and I also believe that she became a disordered person. She had to suffer anxiety reaction because of all the battering that happened and so she became an abnormal person who had lost shes not during the time and that is why it happened because of all the physical battering, emotional battering, all the psychological abuses that she had experienced from her husband. I do believe that she is a battered wife. Was she extremely battered? Sir, it is an extreme form of battering. Yes.[40] Several times in that room? Q What I remember that there were brothers of her husband who are also battering their wives. Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where her husband followed her and battered [her] several times in that room? She told me about that. Did she inform you in what hotel in Ormoc? Sir, I could not remember but I was told that she was battered in that room. A Q A Q Did you gather an information from Marivic that on the side of her husband they were fond of battering their wives? I also heard that from her? You heard that from her? Yes, sir. Did you ask for a complete example who are the relatives of her husband that were fond of battering their wives?

A Q A

A Q A

In addition, Dra. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in understanding the psyche of a battered person. She had met with Marivic Genosa for five sessions totaling about seventeen hours. Based on their talks, the former briefly related the latters ordeal to the court a quo as follows: Q: What can you say, that you found Marivic as a battered wife? Could you in laymans term describe to this Court what her life was like as said to you? A: What I remember happened then was it was more than ten years, that she was suffering emotional anguish. There were a lot of instances of abuses, to emotional abuse, to verbal abuse and to physical abuse. The husband had a very meager income, she was the one who was practically the bread earner of the family. The husband was involved in a lot of vices, going out with barkadas, drinking, even womanizing being involved in cockfight and going home very angry and which will trigger a lot of physical abuse. She also had the experience a lot of taunting from the husband for the reason that the husband even accused her of infidelity, the husband was saying that the child she was carrying was not his own. So she was very angry, she was at the same time very depressed because she was also aware, almost like living in purgatory or even hell when it was happening day in and day out. [39] Q

Parenthetically, the credibility of appellant was demonstrated as follows: Q And you also said that you administered [the] objective personality test, what x x x [is this] all about? A The objective personality test is the Millon Clinical Multiaxial Inventory. The purpose of that test is to find out about the lying prone[ne]ss of the person. What do you mean by that? Meaning, am I dealing with a client who is telling me the truth, or is she someone who can exaggerate or x x x [will] tell a lie[?] And what did you discover on the basis of this objective personality test? She was a person who passed the honesty test. Meaning she is a person that I can trust. That the data that Im gathering from her are the truth. [41]

Q A

In cross-examining Dra. Dayan, the public prosecutor not merely elicited, but wittingly or unwittingly put forward, additional supporting evidence as shown below: Q In your first encounter with the appellant in this case in 1999, where you talked to her about three hours, what was the most relevant information did you gather?

The other expert witness presented by the defense, Dr. Alfredo Pajarillo, testified on his Psychiatric Report,[42] which was based on his interview and examination of Marivic Genosa. The Report said that during the first three years

of her marriage to Ben, everything looked good -- the atmosphere was fine, normal and happy -- until Ben started to be attracted to other girls and was also enticed in[to] gambling[,] especially cockfighting. x x x. At the same time Ben was often joining his barkada in drinking sprees. The drinking sprees of Ben greatly changed the attitude he showed toward his family, particularly to his wife. The Report continued: At first, it was verbal and emotional abuses but as time passed, he became physically abusive. Marivic claimed that the viciousness of her husband was progressive every time he got drunk. It was a painful ordeal Marivic had to anticipate whenever she suspected that her husband went for a drinking [spree]. They had been married for twelve years[;] and practically more than eight years, she was battered and maltreated relentlessly and mercilessly by her husband whenever he was drunk. Marivic sought the help of her mother-in-law, but her efforts were in vain. Further quoting from the Report, [s]he also sought the advice and help of close relatives and well-meaning friends in spite of her feeling ashamed of what was happening to her. But incessant battering became more and more frequent and more severe. x x x.[43] From the totality of evidence presented, there is indeed no doubt in the Courts mind that Appellant Marivic Genosa was a severely abused person.

A study[53] conducted by Martin Seligman, a psychologist at the University of Pennsylvania, found that even if a person has control over a situation, but believes that she does not, she will be more likely to respond to that situation with coping responses rather than trying to escape. He said that it was the cognitive aspect -- the individuals thoughts -- that proved all-important. He referred to this phenomenon as learned helplessness. [T]he truth or facts of a situation turn out to be less important than the individuals set of beliefs or perceptions concerning the situation. Battered women dont attempt to leave the battering situation, even when it may seem to outsiders that escape is possible, because they cannot predict their own safety; they believe that nothing they or anyone else does will alter their terrible circumstances. [54] Thus, just as the battered woman believes that she is somehow responsible for the violent behavior of her partner, she also believes that he is capable of killing her, and that there is no escape. [55] Battered women feel unsafe, suffer from pervasive anxiety, and usually fail to leave the relationship.[56] Unless a shelter is available, she stays with her husband, not only because she typically lacks a means of self-support, but also because she fears that if she leaves she would be found and hurt even more. [57] In the instant case, we meticulously scoured the records for specific evidence establishing that appellant, due to the repeated abuse she had suffered from her spouse over a long period of time, became afflicted with the battered woman syndrome. We, however, failed to find sufficient evidence that would support such a conclusion. More specifically, we failed to find ample evidence that would confirm the presence of the essential characteristics of BWS. The defense fell short of proving all three phases of the cycle of violence supposedly characterizing the relationship of Ben and Marivic Genosa. No doubt there were acute battering incidents. In relating to the court a quo how the fatal incident that led to the death of Ben started, Marivic perfectly described the tension-building phase of the cycle. She was able to explain in adequate detail the typical characteristics of this stage. However, that single incident does not prove the existence of the syndrome. In other words, she failed to prove that in at least another battering episode in the past, she had gone through a similar pattern. How did the tension between the partners usually arise or build up prior to acute battering? How did Marivic normally respond to Bens relatively minor abuses? What means did she employ to try to prevent the situation from developing into the next (more violent) stage? Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. She simply mentioned that she would usually run away to her mothers or fathers house;[58] that Ben would seek her out, ask for her forgiveness and promise to change; and that believing his words, she would return to their common abode. Did she ever feel that she provoked the violent incidents between her and her spouse? Did she believe that she was the only hope for Ben to reform? And that she was the sole support of his emotional stability and well-being? Conversely, how dependent was she on him? Did she feel helpless and trapped in their relationship? Did both of them regard death as preferable to separation? In sum, the defense failed to elicit from appellant herself her factual experiences and thoughts that would clearly and fully demonstrate the essential characteristics of the syndrome. The Court appreciates the ratiocinations given by the expert witnesses for the defense. Indeed, they were able to explain fully, albeit merely theoretically and scientifically, how the personality of the battered woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted upon her by her partner or spouse. They corroborated each others testimonies, which were culled from their numerous studies of hundreds of actual cases. However, they failed to present in court the factual experiences and thoughts that appellant had related to them -- if at all -- based on which they concluded that she had BWS. We emphasize that in criminal cases, all the elements of a modifying circumstance must be proven in order to be appreciated. To repeat, the records lack supporting evidence that would establish all the essentials of the battered woman syndrome as manifested specifically in the case of the Genosas.

Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused woman, her state of mind metamorphoses. In determining her state of mind, we cannot rely merely on the judgment of an ordinary, reasonable person who is evaluating the events immediately surrounding the incident. A Canadian court has aptly pointed out that expert evidence on the psychological effect of battering on wives and common law partners are both relevant and necessary. How can the mental state of the appellant be appreciated without it? The average member of the public may ask: Why would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to pack her bags and go. Where is her self-respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called battered wife syndrome.[44] To understand the syndrome properly, however, ones viewpoint should not be drawn from that of an ordinary, reasonable person. What goes on in the mind of a person who has been subjected to repeated, severe beatings may not be consistent with -- nay, comprehensible to -- those who have not been through a similar experience. Expert opinion is essential to clarify and refute common myths and misconceptions about battered women.[45] The theory of BWS formulated by Lenore Walker, as well as her research on domestic violence, has had a significant impact in the United States and the United Kingdom on the treatment and prosecution of cases, in which a battered woman is charged with the killing of her violent partner. The psychologist explains that the cyclical nature of the violence inflicted upon the battered woman immobilizes the latters ability to act decisively in her own interests, making her feel trapped in the relationship with no means of escape.[46] In her years of research, Dr. Walker found that the abuse often escalates at the point of separation and battered women are in greater danger of dying then.[47] Corroborating these research findings, Dra. Dayan said that the battered woman usually has a very low opinion of herself. She has x x x self-defeating and self-sacrificing characteristics. x x x [W]hen the violence would happen, they usually think that they provoke[d] it, that they were the one[s] who precipitated the violence[; that] they provoke[d] their spouse to be physically, verbally and even sexually abusive to them. [48] According to Dra. Dayan, there are a lot of reasons why a battered woman does not readily leave an abusive partner -- poverty, self-blame and guilt arising from the latters belief that she provoked the violence, that she has an obligation to keep the family intact at all cost for the sake of their children, and that she is the only hope for her spouse to change.[49] The testimony of another expert witness, Dr. Pajarillo, is also helpful. He had previously testified in suits involving violent family relations, having evaluated probably ten to twenty thousand violent family disputes within the Armed Forces of the Philippines, wherein such cases abounded. As a result of his experience with domestic violence cases, he became a consultant of the Battered Woman Office in Quezon City. As such, he got involved in about forty (40) cases of severe domestic violence, in which the physical abuse on the woman would sometimes even lead to her loss of consciousness. [50] Dr. Pajarillo explained that overwhelming brutality, trauma could result in posttraumatic stress disorder, a form of anxiety neurosis or neurologic anxietism.[51] After being repeatedly and severely abused, battered persons may believe that they are essentially helpless, lacking power to change their situation. x x x [A]cute battering incidents can have the effect of stimulating the development of coping responses to the trauma at the expense of the victims ability to muster an active response to try to escape further trauma. Furthermore, x x x the victim ceases to believe that anything she can do will have a predictable positive effect.[52]

BWS as Self-Defense

In any event, the existence of the syndrome in a relationship does not in itself establish the legal right of the woman to kill her abusive partner. Evidence must still be considered in the context of self-defense.[59] From the expert opinions discussed earlier, the Court reckons further that crucial to the BWS defense is the state of mind of the battered woman at the time of the offense[60] -- she must have actually feared imminent harm from her batterer and honestly believed in the need to kill him in order to save her life. Settled in our jurisprudence, however, is the rule that the one who resorts to self-defense must face a real threat on ones life; and the peril sought to be avoided must be imminent and actual, not merely imaginary.[61] Thus, the

Revised Penal Code provides the following requisites and effect of self[62] defense: Q Art. 11. Justifying circumstances. -- The following do not incur any criminal liability: A 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;

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You referred a while ago to severity. What are the qualifications in terms of severity of the postraumatic stress disorder, Dr. Pajarillo? The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is injury to the head, banging of the head like that. It is usually the very very severe stimulus that precipitate this post[t]raumatic stress disorder. Others are suffocating the victim like holding a pillow on the face, strangulating the individual, suffocating the individual, and boxing the individual. In this situation therefore, the victim is heightened to painful stimulus, like for example she is pregnant, she is very susceptible because the woman will not only protect herself, she is also to protect the fetus. So the anxiety is heightened to the end [sic] degree. But in terms of the gravity of the disorder, Mr. Witness, how do you classify? We classify the disorder as [acute], or chronic or delayed or [a]typical. Can you please describe this pre[-]classification you called delayed or [atypical]? The acute is the one that usually require only one battering and the individual will manifest now a severe emotional instability, higher irritability remorse, restlessness, and fear and probably in most [acute] cases the first thing will be happened to the individual will be thinking of suicide. And in chronic cases, Mr. Witness? The chronic cases is this repetitious battering, repetitious maltreatment, any prolonged, it is longer than six (6) months. The [acute] is only the first day to six (6) months. After this six (6) months you become chronic. It is stated in the book specifically that after six (6) months is chronic. The [a]typical one is the repetitious battering but the individual who is abnormal and then become normal. This is how you get neurosis from neurotic personality of these cases of post[t]raumatic stress disorder. [72]

First. Unlawful aggression; Second. Reasonable necessity of the means employed to prevent or repel it; Third. Lack of sufficient provocation on the part of the person defending himself. Unlawful aggression is the most essential element of self-defense.[63] It presupposes actual, sudden and unexpected attack -- or an imminent danger thereof -- on the life or safety of a person.[64] In the present case, however, according to the testimony of Marivic herself, there was a sufficient time interval between the unlawful aggression of Ben and her fatal attack upon him. She had already been able to withdraw from his violent behavior and escape to their childrens bedroom. During that time, he apparently ceased his attack and went to bed. The reality or even the imminence of the danger he posed had ended altogether. He was no longer in a position that presented an actual threat on her life or safety. Had Ben still been awaiting Marivic when she came out of their childrens bedroom -- and based on past violent incidents, there was a great probability that he would still have pursued her and inflicted graver harm -- then, the imminence of the real threat upon her life would not have ceased yet. Where the brutalized person is already suffering from BWS, further evidence of actual physical assault at the time of the killing is not required. Incidents of domestic battery usually have a predictable pattern. To require the battered person to await an obvious, deadly attack before she can defend her life would amount to sentencing her to murder by installment.[65] Still, impending danger (based on the conduct of the victim in previous battering episodes) prior to the defendants use of deadly force must be shown. Threatening behavior or communication can satisfy the required imminence of danger.[66] Considering such circumstances and the existence of BWS, self-defense may be appreciated. We reiterate the principle that aggression, if not continuous, does not warrant self-defense.[67] In the absence of such aggression, there can be no selfdefense -- complete or incomplete -- on the part of the victim.[68] Thus, Marivics killing of Ben was not completely justified under the circumstances.

Q A

Answering the questions propounded by the trial judge, the expert witness clarified further: Mitigating Circumstances Present Q But just the same[,] neurosis especially on battered woman syndrome x x x affects x x x his or her mental capacity? A Q A Yes, your Honor. As you were saying[,] it x x x obfuscated her rationality? Of course obfuscated.[73]

In any event, all is not lost for appellant. While she did not raise any other modifying circumstances that would alter her penalty, we deem it proper to evaluate and appreciate in her favor circumstances that mitigate her criminal liability. It is a hornbook doctrine that an appeal in a criminal case opens it wholly for review on any issue, including that which has not been raised by the parties.[69] From several psychological tests she had administered to Marivic, Dra. Dayan, in her Psychological Evaluation Report dated November 29, 2000, opined as follows: This is a classic case of a Battered Woman Syndrome. The repeated battering Marivic experienced with her husband constitutes a form of [cumulative] provocation which broke down her psychological resistance and natural selfcontrol. It is very clear that she developed heightened sensitivity to sight of impending danger her husband posed continuously. Marivic truly experienced at the hands of her abuser husband a state of psychological paralysis which can only be ended by an act of violence on her part. [70]

In sum, the cyclical nature and the severity of the violence inflicted upon appellant resulted in cumulative provocation which broke down her psychological resistance and natural self-control, psychological paralysis, and difficulty in concentrating or impairment of memory. Based on the explanations of the expert witnesses, such manifestations were analogous to an illness that diminished the exercise by appellant of her will power without, however, depriving her of consciousness of her acts. There was, thus, a resulting diminution of her freedom of action, intelligence or intent. Pursuant to paragraphs 9[74] and 10[75] of Article 13 of the Revised Penal Code, this circumstance should be taken in her favor and considered as a mitigating factor. [76] In addition, we also find in favor of appellant the extenuating circumstance of having acted upon an impulse so powerful as to have naturally produced passion and obfuscation. It has been held that this state of mind is present when a crime is committed as a result of an uncontrollable burst of passion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to overcome reason.[77] To appreciate this circumstance, the following requisites should concur: (1) there is an act, both unlawful and sufficient to produce such a condition of mind; and (2) this act is not far removed from the commission of the crime by a considerable length of time, during which the accused might recover her normal equanimity.[78] Here, an acute battering incident, wherein Ben Genosa was the unlawful aggressor, preceded his being killed by Marivic. He had further threatened to kill her while dragging her by the neck towards a cabinet in which he had kept a gun. It should also be recalled that she was eight months pregnant at the time. The attempt on her life was likewise on that of her fetus. [79] His abusive and violent acts, an aggression which was directed at the lives of both Marivic and her unborn child, naturally produced passion and obfuscation overcoming her reason. Even though she was able to retreat to a separate room, her emotional

Dr. Pajarillo corroborates the findings of Dra. Dayan. He explained that the effect of repetitious pain taking, repetitious battering, [and] repetitious maltreatment as well as the severity and the prolonged administration of the battering is posttraumatic stress disorder.[71] Expounding thereon, he said: Q What causes the trauma, Mr. Witness? A What causes the trauma is probably the repetitious battering. Second, the severity of the battering. Third, the prolonged administration of battering or the prolonged commission of the battering and the psychological and constitutional stamina of the victim and another one is the public and social support available to the victim. If nobody is interceding, the more she will go to that disorder....

and mental state continued. According to her, she felt her blood pressure rise; she was filled with feelings of self-pity and of fear that she and her baby were about to die. In a fit of indignation, she pried open the cabinet drawer where Ben kept a gun, then she took the weapon and used it to shoot him. The confluence of these events brings us to the conclusion that there was no considerable period of time within which Marivic could have recovered her normal equanimity. Helpful is Dr. Pajarillos testimony[80] that with neurotic anxiety -- a psychological effect on a victim of overwhelming brutality [or] trauma -- the victim relives the beating or trauma as if it were real, although she is not actually being beaten at the time. She cannot control re-experiencing the whole thing, the most vicious and the trauma that she suffered. She thinks of nothing but the suffering. Such reliving which is beyond the control of a person under similar circumstances, must have been what Marivic experienced during the brief time interval and prevented her from recovering her normal equanimity. Accordingly, she should further be credited with the mitigating circumstance of passion and obfuscation. It should be clarified that these two circumstances -- psychological paralysis as well as passion and obfuscation -- did not arise from the same set of facts. On the one hand, the first circumstance arose from the cyclical nature and the severity of the battery inflicted by the batterer-spouse upon appellant. That is, the repeated beatings over a period of time resulted in her psychological paralysis, which was analogous to an illness diminishing the exercise of her will power without depriving her of consciousness of her acts. The second circumstance, on the other hand, resulted from the violent aggression he had inflicted on her prior to the killing. That the incident occurred when she was eight months pregnant with their child was deemed by her as an attempt not only on her life, but likewise on that of their unborn child. Such perception naturally produced passion and obfuscation on her part. Second Legal Issue: Treachery

Q A

What happened when you were brought to that drawer? He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key then he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. The one he used to open the drawer I saw, it was a pipe about that long, and when he was about to pick-up the wallet and the blade, I smashed him then I ran to the other room, and on that very moment everything on my mind was to pity on myself, then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic, I was about to vomit.

COURT INTERPRETER (The witness at this juncture is crying intensely).

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You said that he dropped the blade, for the record will you please describe this blade about 3 inches long, how does it look like? Three (3) inches long and inch wide. It is a flexible blade? Its a cutter. How do you describe the blade, is it sharp both edges? Yes, because he once used it to me. How did he do it? He wanted to cut my throat. With the same blade? Yes, sir, that was the object used when he intimidate me.

A Q A Q A Q

There is treachery when one commits any of the crimes against persons by employing means, methods or forms in the execution thereof without risk to oneself arising from the defense that the offended party might make. [81] In order to qualify an act as treacherous, the circumstances invoked must be proven as indubitably as the killing itself; they cannot be deduced from mere inferences, or conjectures, which have no place in the appreciation of evidence. [82] Because of the gravity of the resulting offense, treachery must be proved as conclusively as the killing itself.[83] Ruling that treachery was present in the instant case, the trial court imposed the penalty of death upon appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of Ben had been found lying in bed with an open, depressed, circular fracture located at the back of his head. As to exactly how and when he had been fatally attacked, however, the prosecution failed to establish indubitably. Only the following testimony of appellant leads us to the events surrounding his death: Q You said that when Ben came back to your house, he dragged you? How did he drag you? COURT: The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck) A And he dragged me towards the door backward.

A Q A

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ATTY. TABUCANON: Q A Q A You said that this blade fell from his grip, is it correct? Yes, because I smashed him. What happened? Ben tried to pick-up the wallet and the blade, I pick-up the pipe and I smashed him and I ran to the other room. What else happened? When I was in the other room, I felt the same thing like what happened before when I was admitted in PHILPHOS Clinic, I was about to vomit. I know my blood pressure was raised. I was frightened I was about to die because of my blood pressure.

Q A

ATTY. TABUCANON: Q A Where did he bring you?

COURT INTERPRETER: Outside the bedroom and he wanted to get something and then he kept on shouting at me that you might as well be killed so there will be nobody to nag me So you said that he dragged you towards the drawer? ATTY. TABUCANON: A Q A Yes, sir. Q What is there in the drawer? A I was aware that it was a gun. COURT INTERPRETER (At this juncture the witness started crying) ATTY. TABUCANON: Q A Were you actually brought to the drawer? Yes, sir. Considering all the physical sufferings that Ive been through with him, I took pity on myself and I felt I was about to die also because of my blood pressure and the baby, so I got that gun and I shot him. You said you went to the room, what else happened? (Upon the answer of the witness getting the pipe and smashed him, the witness at the same time pointed at the back of her neck or the nape).

COURT /to Atty. Tabucanon Q A You shot him? Yes, I distorted the drawer.[84]

The above testimony is insufficient to establish the presence of treachery. There is no showing of the victims position relative to appellants at the time of the shooting. Besides, equally axiomatic is the rule that when a killing is preceded by an argument or a quarrel, treachery cannot be appreciated as a qualifying circumstance, because the deceased may be said to have been forewarned and to have anticipated aggression from the assailant. [85] Moreover, in order to appreciate alevosia, the method of assault adopted by the aggressor must have been consciously and deliberately chosen for the specific purpose of accomplishing the unlawful act without risk from any defense that might be put up by the party attacked. [86] There is no showing, though, that the present appellant intentionally chose a specific means of successfully attacking her husband without any risk to herself from any retaliatory act that he might make. To the contrary, it appears that the thought of using the gun occurred to her only at about the same moment when she decided to kill her batterer-spouse. In the absence of any convincing proof that she consciously and deliberately employed the method by which she committed the crime in order to ensure its execution, this Court resolves the doubt in her favor. [87]

eligible for parole, unless she is being held for some other lawful cause. Costs de oficio. SO ORDERED. Puno, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna and Tinga, JJ., concur. Davide, Jr., C.J., Sandoval-Gutierrez, and Austria-Martinez, JJ., join Justice Santiago in her dissent. Vitug and Quisumbing JJ., in the result. Ynares-Santiago J., see dissenting opinion.

Proper Penalty

The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to death. Since two mitigating circumstances and no aggravating circumstance have been found to have attended the commission of the offense, the penalty shall be lowered by one (1) degree, pursuant to Article 64 of paragraph 5[88] of the same Code.[89] The penalty of reclusion temporal in its medium period is imposable, considering that two mitigating circumstances are to be taken into account in reducing the penalty by one degree, and no other modifying circumstances were shown to have attended the commission of the offense.[90] Under the Indeterminate Sentence Law, the minimum of the penalty shall be within the range of that which is next lower in degree -- prision mayor -and the maximum shall be within the range of the medium period of reclusion temporal. Considering all the circumstances of the instant case, we deem it just and proper to impose the penalty of prision mayor in its minimum period, or six (6) years and one (1) day in prison as minimum; to reclusion temporal in its medium period, or 14 years 8 months and 1 day as maximum. Noting that appellant has already served the minimum period, she may now apply for and be released from detention on parole.[91]

Epilogue

Being a novel concept in our jurisprudence, the battered woman syndrome was neither easy nor simple to analyze and recognize vis--vis the given set of facts in the present case. The Court agonized on how to apply the theory as a modern-day reality. It took great effort beyond the normal manner in which decisions are made -- on the basis of existing law and jurisprudence applicable to the proven facts. To give a just and proper resolution of the case, it endeavored to take a good look at studies conducted here and abroad in order to understand the intricacies of the syndrome and the distinct personality of the chronically abused person. Certainly, the Court has learned much. And definitely, the solicitor general and appellants counsel, Atty. Katrina Legarda, have helped it in such learning process. While our hearts empathize with recurrently battered persons, we can only work within the limits of law, jurisprudence and given facts. We cannot make or invent them. Neither can we amend the Revised Penal Code. Only Congress, in its wisdom, may do so. The Court, however, is not discounting the possibility of self-defense arising from the battered woman syndrome. We now sum up our main points. First, each of the phases of the cycle of violence must be proven to have characterized at least two battering episodes between the appellant and her intimate partner. Second, the final acute battering episode preceding the killing of the batterer must have produced in the battered persons mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life. Third, at the time of the killing, the batterer must have posed probable -- not necessarily immediate and actual -- grave harm to the accused, based on the history of violence perpetrated by the former against the latter. Taken altogether, these circumstances could satisfy the requisites of self-defense. Under the existing facts of the present case, however, not all of these elements were duly established. WHEREFORE, the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However, there being two (2) mitigating circumstances and no aggravating circumstance attending her commission of the offense, her penalty is REDUCED to six (6) years and one (1) day of prision mayor as minimum; to 14 years, 8 months and 1 day of reclusion temporal as maximum. Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon her, the director of the Bureau of Corrections may immediately RELEASE her from custody upon due determination that she is

Article 11 7.7 G.R. Nos. 103501-03 February 17, 1997

LUIS A. vs. HONORABLE SANDIGANBAYAN, PHILIPPINES, respondents.

TABUENA, petitioner, and THE PEOPLE OF THE

G.R. No. 103507 February 17, 1997

ADOLFO M. PERALTA, petitioner, vs. HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES, represented by the OFFICE OF THE SPECIAL PROSECUTOR, respondents.

its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a manager's check for said amount in the name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW.

xxx xxx xxx FRANCISCO, J.:


1

Through their separate petitions for review, Luis A. Tabuena and Adolfo M. Peralta (Tabuena and Peralta, for short) appeal the Sandiganbayan decision dated October 12, 1990, 2 as well as the Resolution dated December 20. 1991 3 denying reconsideration, convicting them of malversation under Article 217 of the Revised Penal Code. Tabuena and Peralta were found guilty beyond reasonable doubt Of having malversed the total amount of P55 Million of the Manila International Airport Authority (MIAA) funds during their incumbency as General Manager and Acting Finance Services Manager, respectively, of MIAA, and were thus meted the following sentence:

(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum to twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public office,

That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay. Philippines and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a manager.s check for said amount in the name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW. (2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum, and twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).

xxx xxx xxx

In addition, he shall suffer the penalty of perpetual special disqualification from public office.

(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are each sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporalas minimum and twenty (20) years of reclusion temporal as maximum and for each of them to pay separately a fine of FIVE MILLION PESOS (P5,000,000.00) the amount malversed. They shall also reimburse jointly and severally the Manila International Airport Authority the sum of FIVE MILLION PESOS (P5,000,000.00).

That on or about the 29th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being then the General Manager and Acting Manager, Financial Services Department, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA funds by applying for the issuance of a manager's check for said amount in the name of accused Luis A.

In addition, they shall both suffer the penalty of perpetual special disqualification from public office.

A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Manager of MIAA, has remained at large.

Tabuena chargeable against MIAA's Savings Account No. 274-500- 354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount.

There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount of P55 Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the principal accused he being charged in all three (3) cases. The amended informations in criminal case nos. 11758, 11759 and 11760 respectively read:

CONTRARY TO LAW.

Gathered from the documentary and testimonial evidence are the following essential antecedents: That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to

Then President Marcos instructed Tabuena over the phone to pay directly to the president's office and in cash what the MIAA owes the Philippine National Construction Corporation (PNCC), to which Tabuena replied, " Yes, sir, I will do it." About a week later, Tabuena received from Mrs. Fe Roa-Gimenez, then private secretary of Marcos, a Presidential Memorandum dated January 8, 1986

(hereinafter referred to as MARCOS Memorandum) reiterating in black and white such verbal instruction, to wit:

At the same time, PNCC has potential escalation claims amounting to P99 million in the following stages of approval/evaluation: Approved by Price (PEC) but pended for lack of funds P1.9 million Endorsed by project currently being evaluated by PEC 30.7 million Submitted and currently Total P99.1 million

Office of Malacanang

of the

the

President Philippines

Escalation

Committee

consultants

and

MEMO TO: The Manila International Airport Authority

General

Manager

You are hereby directed to pay immediately the Philippine National Construction Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAA's account with said Company mentioned in a Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985 and duly approved by this Office on February 4, 1985.

by under

PNCC directly evaluation

to 66.5

PEC million

There has been no funding allocation for any of the above escalation claims due to budgetary constraints. Your immediate compliance is appreciated. The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due to PNCC have not been paid, resulting in undue burden to PNCC due to additional cost of money to service its obligations for this contract.

The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin referred to in the MARCOS Memorandum, reads in full:

MEMORANDUM To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His Excellency's approval for a deferment of the repayment of PNCC's advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has been officially recognized by MIADP consultants but could not be paid due to lack of funding.

For: The President

From: Minister Roberto V. Ongpin

Date: 7 January 1985

Subject: Approval of Supplemental Contracts and Request for Partial Deferment of Repayment of PNCC's Advances for MIA Development Project

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million.

May I request your approval of the attached recommendations of Minister Jesus S. Hipolito for eight (8) supplemental contracts pertaining to the MIA Development Project (MIADP) between the Bureau of Air Transport (BAT) and Philippine National Construction Corporation (PNCC), formerly CDCP, as follows:

In obedience to President Marcos' verbal instruction and memorandum, Tabuena, with the help of Dabao and Peralta, caused the release of P55 Million of MIAA funds by means of three (3) withdrawals.

1. Supplemental Contract Package Contract No. 2 P11,106,600.95

No.

12

2. Supplemental 5,758,961.52

Contract

No.

13

The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date signed by Tabuena and Dabao requesting the PNB extension office at the MIAA the depository branch of MIAA funds, to issue a manager's check for said amount payable to Tabuena. The check was encashed, however, at the PNB Villamor Branch. Dabao and the cashier of the PNB Villamor branch counted the money after which, Tabuena took delivery thereof. The P25 Million in cash were then placed in peerless boxes and duffle bags, loaded on a PNB armored car and delivered on the same day to the office of Mrs. Gimenez located at Aguado Street fronting Malacanang. Mrs. Gimenez did not issue any receipt for the money received

3. Supplemental Package Contract No. 2 4,586,610.80

Contract

No.

14 Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25 Million, made on January 16, 1986.

4. Supplemental 1,699,862.69

Contract

No.

15 The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuena's co-signatory to the letter- request for a manager's check for this amount. Peralta accompanied Tabuena to the PNB Villamor branch as Tabuena requested him to do the counting of the P5 Million. After the counting, the money was placed in two (2) peerless boxes which were loaded in the trunk of Tabuena's car. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez' office at Aguado Street. It was only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all the amounts she received from Tabuena. The receipt, dated January 30, 1986, reads:

5. Supplemental Package Contract No. 2 233,561.22

Contract

No.

16

6. Supplemental Package Contract No. 2 8,821,731.08

Contract

No.

17

7. Supplemental Package Contract No. 2 6,110,115.75

Contract

No.

18 Malacanang Manila

8. Supplemental Package Contract No. II 16,617,655.49

Contract

No.

3 RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS (P55,000,000.00) as of the following dates:

(xerox copies only; original memo was submitted to the Office of the President on May 28, 1984)

Jan. 10 Jan. 16 Jan. 30 5,000,000.00

25,000,000.00 25,000,000.00

In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly CDCP, has accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusive of accomplishments for the aforecited contracts. In accordance with contract provisions, outstanding advances totalling P93.9 million are to be deducted from said billings which will leave a net amount due to PNCC of only P4.5 million.

(Sgd.) Fe Roa-Gimenez

The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, "out of the ordinary" and "not based on the normal procedure". Not only were there no vouchers prepared to support the disbursement, the P55

Million was paid in cold cash. Also, no PNCC receipt for the P55 Million was presented. Defense witness Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, even affirmed in court that there were no payments made to PNCC by MIAA for the months of January to June of 1986.

the mode proved, the same offense of malversation is involved and conviction thereof is proper. . . .

In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or intentional falsification can validly be convicted of falsification through negligence, thus:

The position of the prosecution was that there were no outstanding obligations in favor of PNCC at the time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena and Peralta, in short, was that they acted in good faith. Tabuena claimed that he was merely complying with the MARCOS Memorandum which ordered him to forward immediately to the Office of the President P55 Million in cash as partial payment of MIAA's obligations to PNCC, and that he (Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. Peralta for his part shared the same belief and so he heeded the request of Tabuena, his superior, for him (Peralta) to help in the release of P5 Million.

With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their conviction, Tabuena and Peralta now set forth a total of ten (10) errors 6 committed by the Sandiganbayan for this Court's consideration. It appears, however, that at the core of their plea that we acquit them are the following:

While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs.Justice of the Peace of Bacolor . G.R. No. L-6641, July 28, 1995, but a distinct crime in our Penal Code, designated as a quasi offense in our Penal Code, it may however be said that a conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense. This is the situation that obtains in the present case. Appellant was charged with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification which made possible the cashing of the checks in question, appellant did not act with criminal intent but merely failed to take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the information alleges acts which charge willful falsification but which turned out to be not willful but negligent. This is a case covered by the rule when there is a variance between the allegation and proof, and is similar to some of the cases decided by this Tribunal.

1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and xxx xxx xxx 2) they acted in good faith. Moreover; Section 5, Rule 116, of the Rules of Court does not require that all the essential elements of the offense charged in the information be proved, it being sufficient that some of said essential elements or ingredients thereof be established to constitute the crime proved. . . .

Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional malversation, as the amended informations commonly allege that:

. . . accused . . . conspiring, confederating and other, then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriated the amount of . . . .

The fact that the information does not allege that the falsification was committed with imprudence is of no moment for here this deficiency appears supplied by the evidence submitted by appellant himself and the result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it would be incongruous to allege at the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept of negligence.

But it would appear that they were convicted of malversation by negligence. In this connection, the Court's attention is directed to p. 17 of the December 20, 1991 Resolution (denying Tabuena's and Peralta's motion for reconsideration) wherein the Sandiganbayan said:

xxx xxx xxx

Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale and arguments also apply to the felony of malversation, that is, that an accused charged with willful malversation, in an information containing allegations similar to those involved in the present case, can be validly convicted of the same offense of malversation through negligence where the evidence sustains the latter mode of perpetrating the offense.

On the contrary, what the evidence shows is that accused Tabuena delivered the P55 Million to people who were not entitled thereto, either as representatives of MIAA or of the PNCC.

Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for malversation for it would negate criminal intent on the part of the accused. Thus, in the two (2) vintage, but significantmalversation cases of "US v. Catolico" 10 and "US v. Elvina," 11 the Court stressed that:

It proves that Tabuena had deliberately consented or permitted through negligence or abandonment, some other person to take such public funds. Having done so, Tabuena, by his own narration, has categorically demonstrated that he is guilty of the misappropriation or malversation of P55 Million of public funds. (Emphasis supplied.)

To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences as, in law, is equivalent to criminal intent. The maxim is actus non facit reum, nisi mens sit rea a crime is not committed if the mind of the person performing the act complained of is innocent.
12

To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue that: The rule was reiterated in "People v. Pacana," falsification of public documents and estafa: 1) While malversation may be committed intentionally or by negligence, both modes cannot be committed at the same time.

although this case involved

2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where the amended informations charged them with intentional malversation. 7

Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting.

3) Their conviction of a crime different from that charged violated their constitutional right to be informed of the accusation. 8

We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is "Cabello v. Sandiganbayan" 9 where the Court passed upon similar protestations raised by therein accused-petitioner Cabello whose conviction for the same crime of malversation was affirmed, in this wise:

American jurisprudence echoes the same principle. It adheres to the view that criminal intent in embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is no wrongful purpose. 13 The accused may thus always introduce evidence to show he acted in good faith and that he had no intention to convert. 14 And this, to our mind, Tabuena and Peralta had meritoriously shown.

. . . even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from

In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum we are swayed to give credit to his claim of having caused the disbursement of the P55 Million solely by reason of such memorandum. From this premise flows the following reasons and/or considerations that would buttress his innocence of the crime of malversation.

First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS Memorandum required him to do. He could not be faulted if he had to obey and strictly comply with the presidential directive, and to argue

otherwise is something easier said than done. Marcos was undeniably Tabuena's superior the former being then the President of the Republic who unquestionably exercised control over government agencies such as the MIAA and PNCC. 15 In other words, Marcos had a say in matters involving intergovernment agency affairs and transactions, such as for instance, directing payment of liability of one entity to another and the manner in which it should be carried out. And as a recipient of such kind of a directive coming from the highest official of the land no less, good faith should be read on Tabuena's compliance, without hesitation nor any question, with the MARCOS Memorandum. Tabuena therefore is entitled to the justifying circumstance of " Any person who acts in obedience to an order issued by a superior for some lawful purpose ." 16 The subordinate-superior relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained in the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government agency (MIAA) to another (PNCC). However, the unlawfulness of the MARCOS Memorandum was being argued, on the observation, for instance, that the Ongpin Memo referred to in the presidential directive reveals a liability of only about P34.5 Million. The Sandiganbayan in this connection said:

ATTY ANDRES

Q Can you please show us in this Exhibit "7" and "7-a" where it is indicated the receivables from MIA as of December 31, 1985?

A As of December 31, 1985, the receivables from MIA is shown on page 2, marked as Exhibit "7-a", sir, P102,475.392.35 xxx xxx xxx 19

ATTY. ANDRES

Q Can you tell us, Mr. Witness, what these obligations represent?

Exhibits "2" and "2-a" (pages 1 and 2 of the memorandum of Min. Ongpin to the President dated January 7, 1985) were mainly:

WITNESS

a.) for the approval of eight Supplemental Contracts; and

A These obligations represent receivables on the basis of our billings to MIA as contract-owner of the project that the Philippine National Construction Corporation constructed. These are billings for escalation mostly, sir.

b.) a request for partial deferment of payment by PNCC for advances made for the MIAA Development Project, while at the same time recognizing some of the PNCC's escalation billings which would result in making payable to PNCC the amount of P34.5 million out of existing MIAA Project funds.

Q What do you mean by escalation?

A Escalation is the component of our revenue billings to the contract-owner that are supposed to take care of price increases, sir. Thus: xxx xxx xxx 20 "xxx xxx xxx ATTY ANDRES To allow PNCC to collect partially its billings, and in consideration of ifs pending escalation billings, may we request for His Excellency's approval for a deferment of repayment of PNCC's advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.6 million has been officially recognized by MIADP consultants but could not be paid due to lack of funding.

Q When you said these are accounts receivable, do I understand from you that these are due and demandable? A Yes, sir. 21

Our proposal will allow BAT to pay PNCC the amount of P34 .5 million out of existing MIA Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million."

Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not liable, for then there would only be a mistake of fact committed in good faith. 22 Such is the ruling in "Nassif v. People" 23 the facts of which, in brief, are as follows:

While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion thereof was still in the stages of evaluation and approval, with only P32.6 million having been officially recognized by the MIADP consultants.

If any payments were, therefore, due under this memo for Min. Ongpin (upon which President Marcos' Memo was based) they would only be for a sum of up to P34.5 million. 17

Accused was charged with falsification of commercial document. A mere employee of R.J. Campos, he inserted in the commercial document alleged to have been falsified the word "sold" by order of his principal. Had he known or suspected that his principal was committing an improper act of falsification, he would be liable either as a co-principal or as an accomplice. However, there being no malice on his part, he was exempted from criminal liability as he was a mere employee following the orders of his principal. 24

xxx xxx xxx

Second. There is no denying that the disbursement, which Tabuena admitted as "out of the ordinary", did not comply with certain auditing rules and regulations such as those pointed out by the Sandiganbayan, to wit:

V. Pres. Marcos' order to Tabuena dated January 8, 1986 baseless. a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00 should be made by check (Basic Guidelines for Internal Control dated January 31, 1977 issued by COA)

Not only was Pres. Marcos' Memo (Exhibit "1") for Tabuena to pay P55 million irrelevant, but it was actually baseless.

This is easy to see.

b) payment of all claims against the government had to be supported with complete documentation (Sec. 4, P.D. 1445, "State Auditing Code of the Philippines). In this connection, the Sandiganbayan observed that:

Exhibit "1" purports to refer itself to the Ongpin Memorandum (Exhibit "2", "2-a"); Exhibit "1", however, speaks of P55 million to be paid to the PNCC while Exhibit "2" authorized only P34.5 million. The order to withdraw the amount of P55 million exceeded the approved payment of P34.5 million by P20.5 million. Min. Ongpin's Memo of January 7, 1985 could not therefore serve as a basis for the President's order to withdraw P55 million. 18

There were no vouchers to authorize the disbursements in question. There were no bills to support the disbursement. There were no certifications as to the availability of funds for an unquestionably staggering sum of P55 Million. 25

c) failure to protest (Sec. 106, P.D. 1445) Granting this to be true, it will not nevertheless affect Tabuena's goad faith so as to make him criminally liable. What is more significant to consider is that the MARCOS Memorandum is patently legal (for on its face it directs payment of an outstanding liability) and that Tabuena acted under the honest belief that the P55 million was a due and demandable debt and that it was just a portion of a bigger liability to PNCC. This belief is supported by defense witness Francis Monera who, on direct examination, testified that:

But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury of time to observe all auditing procedures of disbursement considering the fact that the MARCOS Memorandum enjoined his "immediate compliance" with the directive that he forward to the President's Office the P55 Million in cash. Be that as it may, Tabuena surely cannot escape responsibility for such omission. But since he was acting in good

faith, his liability should only be administrative or civil in nature, and not criminal. This follows the decision in "Villacorta v. People" 26 where the Court, in acquitting therein accused municipal treasurer of Pandan, Catanduanes of malversation after finding that he incurred a shortage in his cash accountability by reason of his payment in good faith to certain government personnel of their legitimate wages leave allowances, etc., held that:

there is reasonable ground to believe that the public officer to whom the fund had been paid was entitled thereto, he is deemed to have acted in good faith, there is no criminal intent, and the payment, if it turns out that it is unauthorized, renders him only civilly but not criminally liable. 29

Nor can negligence approximating malice or fraud be attributed to petitioner. If he made wrong payments, they were in Good faith mainly to government personnel, some of them working at the provincial auditor's and the provincial treasurer's offices And if those payments ran counter to auditing rules and regulations, they did not amount to a criminal offense and he should only be held administratively or civilly liable. Likewise controlling is "US v. Elvina" 27 where it was held that payments in good faith do not amount to criminal appropriation, although they were made with insufficient vouchers or improper evidence. In fact, the Dissenting Opinion's reference to certain provisions in the revised Manual on Certificate of Settlement and Balances apparently made to underscore Tabuena's personal accountability, as agency head, for MIAA funds would all the more support the view that Tabuena is vulnerable to civil sanctions only Sections 29.2 and 295 expressly and solely speak of "civilly liable," describe the kind of sanction imposable on a superior officer who performs his duties with "bad faith, malice or gross negligence"' and on a subordinate officer or employee who commits " willful or negligent acts . . . which are contrary to law, morals, public policy and good customs even if he acted under order or instructions of his superiors ."

Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to siphon-out public money for the personal benefit of those then in power, still, no criminal liability can be imputed to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the execution of the MARCOS Memorandum. Nor is there proof that he profited from the felonious scheme. In short, no conspiracy was established between Tabuena and the real embezzler/s of the P5 Million. In the cases of "US v. Acebedo" 30 and "Ang v. Sandiganbayan", 31 both also involving the crime of malversation, the accused therein were acquitted after the Court arrived at a similar finding of non-proof of conspiracy. In "Acebedo", therein accused, as municipal president of Palo, Leyte, was prosecuted for and found guilty by the lower court of malversation after being unable to turn over certain amounts to the then justice of the peace. It appeared, however, that said amounts were actually collected by his secretary Crisanto Urbina. The Court reversed Acebedo's conviction after finding that the sums were converted by his secretary Urbina without the knowledge and participation of Acebedo. The Court said, which we herein adopt:

Third. The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the PNCC, proceeding from the following definitions/concepts of "conversion":

No conspiracy between the appellant and his secretary has been shown in this case, nor did such conspiracy appear in the case against Urbina. No guilty knowledge of the theft committed by the secretary was shown on the part of the appellant in this case, nor does it appear that he in any way participated in the fruits of the crime. If the secretary stole the money in question without the knowledge or consent of the appellant and without negligence on his part, then certainly the latter can not be convicted of embezzling the same money or any part thereof. 32

"Conversion", as necessary element of offense of embezzlement, being the fraudulent "appropriation to one's own use' of another's property which does not necessarily mean to one's personal advantage but every attempt by one person to dispose of the goods of another without right as if they were his own is conversion to his own use." (Terry v. Water Improvement Dist. No. 5 of Tulsa County, 64 p, 2d 904, 906, 179 Okl. 106)

In "Ang", accused-petitioner, as MWSS bill collector, allowed part of his collection to be converted into checks drawn in the name of one Marshall Lu, a noncustomer of MWSS, but the checks were subsequently dishonored. Ang was acquitted by this Court after giving credence to his assertion that the conversion of his collections into checks were thru the machinations of one Lazaro Guinto, another MWSS collector more senior to him. And we also adopt the Court's observation therein, that:

Conversion is any interference subversive of the right of the owner of personal property to enjoy and control it. The gist of conversion is the usurpation of the owner 's right of property, and not the actual damages inflicted. Honesty of purpose is not a defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)

xxx xxx xxx

The petitioner's alleged negligence in allowing the senior collector to convert cash collections into checks may be proof of poor judgment or too trusting a nature insofar as a superior officer is concerned but there must be stronger evidence to show fraud, malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall Lu. The prosecution failed to show that the petitioner was privy to the conspirational scheme. Much less is there any proof that he profited from the questioned acts. Any suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS, must be converted into evidence before conviction beyond reasonable doubt may be imposed. 33

The words "convert" and "misappropriate" connote an act of using or disposing of another's property as if it were one's own. They presuppose that the thing has been devoted to a purpose or use different from that agreed upon. To appropriate to one's own use includes not only conversion to one's personal advantage but every attempt to dispose of the property of another without right.

The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peralta in relation to the P5 Million for which he is being held accountable, i.e., he acted in good faith when he, upon the directive of Tabuena, helped facilitate the withdrawal of P5 Million of the P55 Million of the MIAA funds.

By placing them at the disposal of private persons without due authorization or legal justification, he became as guilty of malversation as if he had personally taken them and converted them to his own use.

We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena "to pay immediately the Philippine National Construction Corporation, thru this office the sum of FIFTY FIVE MILLION. . .", and that was what Tabuena precisely did when he delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the President inasmuch as Mrs. Gimenez was Marcos' secretary then. Furthermore, Tabuena had reasonable ground to believe that the President was entitled to receive the P55 Million since he was certainly aware that Marcos, as Chief Executive, exercised supervision and control over government agencies. And the good faith of Tabuena in having delivered the money to the President's office (thru Mrs. Gimenez), in strict compliance with the MARCOS Memorandum, was not at all affected even if it later turned out that PNCC never received the money. Thus, it has been said that:

This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly executed order. Indeed, compliance to a patently lawful order is rectitude far better than contumacious disobedience. In the case at bench, the order emanated from the Office of the President and bears the signature of the President himself, the highest official of the land. It carries with it the presumption that it was regularly issued. And on its face, the memorandum is patently lawful for no law makes the payment of an obligation illegal. This fact, coupled with the urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis essentia. Besides, the case could not be detached from the realities then prevailing As aptly observed by Mr Justice Cruz in his dissenting opinion:

We reject history in arbitrarily assuming that the people were free during the era and that the Judiciary was independent and fearless. We know it was not: even the Supreme Court at that time was not free. This is an undeniable fact that we can not just blink away. Insisting on the contrary would only make our sincerity suspect and even provoke scorn for what can only be described as our incredible credulity. 34

Good faith in the payment of public funds relieves a public officer from the crime of malversation.

xxx xxx xxx

Not every unauthorized payment of public funds is malversation. There is malversation only if the public officer who has custody of public funds should appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence shall permit any other person to take such public funds. Where the payment of public funds has been made in good faith, and

But what appears to be a more compelling reason for their acquittal is the violation of the accused's basic constitutional right to due process. " Respect for the Constitution", to borrow once again Mr. Justice Cruz's words, " is more important than securing a conviction based on a violation of the rights of the accused." 35 While going over the records, we were struck by the way the Sandiganbayan actively took part in the questioning of a defense witness and of the accused themselves. Tabuena and Peralta may not have raised this as an error, there is nevertheless no impediment for us to consider such matter as additional basis for a reversal since the settled doctrine is that an appeal throws the whole case open to review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from whether they are made the subject of assignments of error or not. 36

Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the testimony of Francis Monera. then Senior Assistant Vice President and Corporate Comptroller of PNCC, Atty. Andres asked sixteen (16) questions on direct examination. Prosecutor Viernes only asked six (6) questions on crossexamination in the course of which the court interjected a total of twenty-seven (27) questions (more than four times Prosecutor Viernes' questions and even more than the combined total of direct and cross-examination questions asked by the counsels) After the defense opted not to conduct any re-direct examination, the court further asked a total of ten (10) questions. 37 The trend intensified during Tabuena's turn on the witness stand. Questions from the court after Tabuena's cross-examination totalled sixty-seven (67). 38 This is more than five times Prosecutor Viernes' questions on cross-examination (14), and more than double the total of direct examination and cross-examination questions which is thirty-one (31) [17 direct examination questions by Atty. Andres plus 14 crossexamination questions by Prosecutor Viernes]. In Peralta's case, the Justices, after his cross-examination, propounded a total of forty-one (41) questions. 39

A Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpin appears to have confirmed our billings to MIA, your Honor.

*AJ AMORES

*Q Were there partial payments made by MIA an these escalation billings?

A Based on records available as of today, the P102 million was reduced to about P56.7 million, if my recollection is correct, your Honor.

*PJ GARCHITORENA

But more importantly, we note that the questions of the court were in the nature of cross examinations characteristic of confrontation, probing and insinuation. 40 (The insinuating type was best exemplified in one question addressed to Peralta, which will be underscored.) Thus we beg to quote in length from the transcripts pertaining to witness Monera, Tabuena and Peralta. (Questions from the Court are marked with asterisks and italicized for emphasis.)

*Q Were the payments made before or after February 1986, since Mr. Olaguer is a new entrant to your company?

WITNESS

(MONERA)

(As a background, what was elicited from his direct examination is that the PNCC had receivables from MIAA totalling P102,475,392.35, and although such receivables were largely billings for escalation, they were nonetheless all due and demandable. What follows are the cross-examination of Prosecutor Viernes and the court questions).

A The payments were made after December 31, 1985 but I think the payments were made before the entry of our President, your Honor. Actually, the payment was in the form of: assignments to State Investment of about P23 million; and then there was P17.8 million application against advances made or formerly given; and there were payments to PNCC of about P2.6 million and there was a payment for application on withholding and contractual stock of about P1 million; that summed up to P44.4 million all in all. And you deduct that from the P102 million, the remaining balance would be about P57 million.

*PJ GARCHITORENA CROSS-EXAMINATION BY PROS. VIERNES *Q What you are saying is that, for all the payments made on this P102 million, only P2 million had been payments in cash ? Q You admit that as shown by these Exhibits "7" and "7- a", the items here represent mostly escalation billings. Were those escalation billings properly transmitted to MIA authorities?

A Yes, your Honor.

A I don't have the documents right now to show that they were transmitted, but I have a letter by our President, Mr. Olaguer, dated July 6, 1988, following up for payment of the balance of our receivables from MIA, sir.

*Q The rest had been adjustments of accounts, assignments of accounts, or offsetting of accounts?

A Yes, your Honor. *AJ AMORES *Q This is as of December 31, 1985? *Q This matter of escalation costs, is it not a matter for a conference between the MIA and the PNCC for the determination as to the correct amount? A The P102 million was as of December 31, 1985, your Honor, but the balances is as of August 1987. A I agree, your Honor. As far as we are concerned, our billings are what we deemed are valid receivables And, in fact, we have been following up for payment.

*Q We are talking now about the P44 million, more or less, by which the basic account has been reduced. These reductions, whether by adjustment or assignment or actual delivery of cash, were made after December 31, 1985?

*Q This determination of the escalation costs was it accepted as the correct figure by MIA ? WITNESS A I don't have any document as to the acceptance by MIA your Honor, but our company was able to get a document or a letter by Minister Ongpin to President Marcos, dated January 7, 1985, with a marginal note or approval by former President Marcos.

A Yes, your Honor.

*Q And your records indicate when these adjustments and payments were made? *PJ GARCHITORENA A Yes, your Honor. *Q Basically, the letter of Mr. Ongpin is to what effect? *AJ AMORES A The subject matter is approval of the supplementary contract and request for partial deferment of payment for MIA Development Project, your Honor. *Q You said there were partial payments before of these escalation billings. Do we get it from you that there was an admission of these escalation costs as computed by you by MIA, since there was already partial payments?

*Q It has nothing to do with the implementation of the escalation costs?

A The details show that most of the accounts refer to our escalations, your Honor.

A Yes, your Honor.

*Q Does that indicate the computation for escalations were already billed or you do not have any proof of that

*Q How were these payments made before February 1986, in case or check, if there were payments made?

A The P44 million payments was in the form of assignments, your Honor.

*PJ GARCHITORENA

*Q And the business way?

*Q The question of the Court is, before December 31, 1985, were there any liquidations made by MIA against these escalation billings?

A Yes, your Honor.

PJ GARCHITORENA A I have not reviewed the details of the record, your Honor. But the ledger card indicates that there were collections on page 2 of the Exhibit earlier presented. It will indicate that there were collections shown by credits indicated on the credit side of the ledger.

Continue.

PROS VIERNES *AJ AMORES Q You mentioned earlier about the letter of former Minister Ongpin to the former President Marcos, did you say that letter concurs with the escalation billings reflected in Exhibits "7" and "7-a"?

*Q Your ledger does not indicate the manner of giving credit to the MIA with respect to the escalation billings. Was the payment in cash or just credit of some sort before December 31, 1985?

WITNESS A Before December 31, 1985, the reference of the ledger are official receipts and I suppose these were payments in cash, your Honor. A The Company or the management is of the opinion that this letter, a copy of which we were able to get, is a confirmation of the acceptance of our billings, sir. *Q Do you know how the manner of this payment in cash was made by MIA? Q This letter of Minister Ongpin is dated January 7, 1985, whereas the entries ofescalation billings as appearing in Exhibit "7" are dated June 30, 1985, would you still insist that the letter of January 1985 confirms the escalation billings as of June 1985?

A I do not know, your Honor.

*PJ GARCHITORENA A The entries started June 30 in the ledger card. And as of December 31, 1985, it stood at P102 million after payments were made as shown on the credit side of the ledger. I suppose hat the earlier amount, before the payment was made, was bigger and therefore I would venture to say that the letter of January 7, 1985 contains an amount that is part of the original contract account. What are indicated in the ledger are escalation billings.

*Q But your records will indicate that?

A The records will indicate that, your Honor.

*Q Except that you were not asked to bring them? *PJ GARCHITORENA A Yes, your Honor. *Q We are talking about the letter of Minister Ongpin? *Q At all events, we are talking of settlement or partial liquidation prior to December 31, 1985?

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

A Yes, your Honor.

*Q As of what date?

*PJ GARCHITORENA

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

*Q Subsequent thereto, we are talking merely of about P44 million?

PJ GARCHITORENA

A Yes, your Honor, as subsequent settlements.

Continue.

*Q After December 31, 1985?

PROS. VIERNES

A Yes, your Honor.

Q In accordance with this letter marked Exhibit "7" and "7-a", there were credits made in favor of MIA in July and November until December 1985. These were properly credited to the account of MIA?

*Q And they have liquidated that, as you described it, by way of assignments, adjustments, by offsets and by P2 million of cash payment? WITNESS A Yes, your Honor. A Yes, sir. *AJ AMORES Q In 1986. from your records as appearing in Exhibit "7-a", there were no payments made to PNCC by MIA for the months of January to June 1986? *Q Your standard operating procedure before December 31, 1985 in connection with or in case of cash payment, was the payment in cash or check? A Yes, sir. A I would venture to say it was by check, your Honor. Q And neither was the amount of P22 million remitted to PNCC by MIA? *Q Which is the safest way to do it? A Yes, sir. A Yes, your Honor. PROS VIERNES "PJ GARCHITORENA That will be all, your Honor.

PJ GARCHITORENA

*Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?

Redirect?

A There is still a balance of receivables from MIA as evidenced by a collection letter by our President dated July 6, 1988, your Honor. The amount indicated in the letter is P55 million.

ATTY ANDRES PJ GARCHITORENA No redirect, your Honor. Any clarifications you would like to make Mr. Estebal? *PJ GARCHITORENA ATTY ESTEBAL Questions from the Court. None, your Honor. *AJ AMORES PJ GARCHITORENA *Q From your records, for the month of January 1986, there was no payment of this escalation account by MIA? Mr. Viernes? WITNESS PROS VIERNES A Yes, your Honor. But on page 2 of Exhibit "7" there appears an assignment of P23 million, that was on September 25, 1986.

No more, your Honor.

*Q But that is already under the present administration?

PJ GARCHITORENA The witness is excused. Thank you very much Mr. Monera. . . . 41

A After February 1986, your Honor.

*Q But before February, in January 1986, there was no payment whatsoever by MIA to PNCC?

(TABUENA)

A Per record there is none appearing, your Honor.

*PJ GARCHITORENA

(In his direct examination, he testified that he caused the preparation of the checks totalling P55 Million pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in cash on the three (3) dates as alleged in the information to Marcos' private secretary Mrs. Jimenez at her office at Aguado Street, who thereafter issued a receipt. Tabuena also denied having used the money for his own personal use.)

*Q The earliest payment, whether by delivery of cash equivalent or of adjustment of account, or by assignment, or by offsets, when did these payments begin?

CROSS-EXAMINATION BY PROS. VIERNES

A Per ledger card, there were payments in 1985, prior to December 31, 1985, your Honor.

Q The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were delivered on how many occasions?

*Q After December 31, 1985?

A Three times, sir.

A There appears also P23 million as credit, that is a form of settlement, your Honor.

Q And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez?

*Q This is as of September 25?

A Yes, sir.

A Yes, your Honor. There were subsequent settlements P23 million is just part of the P44 million.

Q It was only on January 30, 1986 that this receipt Exhibit "3" was issued by Mrs. Gimenez?

*Q And what you are saying is that, PNCC passed the account to State Investment. In other words, State Investment bought the credit of MIA?

A Yes, sir.

*PJ GARCHITORENA A Yes, your Honor. *Q So January 30 is the date of the last delivery? *Q And the amount of credit or receivables sold by PNCC to State Investment is P23 million? A I remember it was on the 31st of January, your Honor What happened is that, I did not notice the date placed by Mrs. Gimenez. A Yes, your Honor. Q Are you telling us that this Exhibit "3" was incorrectly dated *Q Is there a payback agreement? A Yes, your Honor. A I have a copy of the assignment to State Investment but I have not yet reviewed the same, your Honor. *Q Because the third delivery was on January 31st and yet the receipt was dated January 30? *AJ AMORES

A Yes, your Honor.

Q Did you actually see Mrs. Gimenez signing this receipt Exhibit "3"?

*Q When was Exhibit "3" delivered actually by Mrs. Gimenez?

A No, sir, I did not. She was inside her room.

A January 31st, your Honor.

Q So, she was in her room and when she came out of the room, she handed this receipt to you already typed and signed?

PJ GARCHITORENA A Yes, sir. Continue. *AJ HERMOSISIMA PROS VIERNES *Q So, how did you know this was the signature of Mrs. Gimenez? Q You did not go to Malacaang on January 30, 1986? WITNESS A Yes, sir, I did not. A Because I know her signature, your Honor. I have been receiving letters from her also and when she requests for something from me. Her writing is familiar to me.

Q Do you know at whose instance this Exhibit "3" was prepared?

A I asked for it, sir.

So, when the Presiding Justice asked you as to how you knew that this was the signature of Mrs. Gimenez and you answered that you saw Mrs. Gimenez signed it, you were not exactly truthful?

Q You asked for it on January 31, 1986 when you made the last delivery? A What I mean is, I did not see her sign because she went to her room and when she came out, she gave me that receipt, your Honor.

A Yes, sir.

Q Did you see this Exhibit "3" prepared in the Office of Mrs. Gimenez?

PJ GARCHITORENA

A Yes, sir.

That is why you have to wait for the question to be finished and listen to it carefully. Because when I asked you, you said you saw her signed it. Be careful Mr. Tabuena.

Q This receipt was typewritten in Malacaang stationery. Did you see who typed this receipt? WITNESS A No, sir. What happened is that, she went to her room and when she came out she gave me that receipt.

Yes, your Honor.

*PJ GARCHITORENA

PJ GARCHITORENA

Q What you are saying is, you do not know who typed that receipt?

Continue.

WITNESS

PROS VIERNES

A Yes, your Honor.

Was there another person inside the office of Mrs. Gimenez when she gave you this receipt Exhibit "3"?

*Q Are you making an assumption that she typed that receipt? A Nobody, sir. A Yes, your Honor, because she knows how to type. Q I noticed in this receipt that the last delivery of the sum of P55 million was made on January 30. Do we understand from you that this date January 30 is erroneous?

*Q Your assumption is that she typed it herself?

A Yes, your Honor.

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

PJ GARCHITORENA PROS VIERNES Proceed. That will be all, your Honor. PROS. VIERNES PJ GARCHITORENA Q This receipt was prepared on January 31, although it is dated January 30? Redirect? A Yes, sir, because I was there on January 31st. ATTY. ANDRES Q In what particular place did Mrs. Gimenez sign this Exhibit "3"? No redirect, your Honor. A In her office at Aguado, sir.

*PJ GARCHITORENA

*AJ DEL ROSARIO

Questions from the Court.

Did you file any written protest with the manner with which such payment was being ordered?

*AJ HERMOSISIMA A No, your Honor. *Q Why did you not ask for a receipt on the first and second deliveries? *Q Why not? A Because I know that the delivery was not complete yet, your Honor. A Because with that instruction of the President to me, I followed, your Honor. *PJ GARCHITORENA *Q Before receiving this memorandum Exhibit "1", did the former President Marcos discuss this maitter with you? *Q So you know that the total amount to be delivered was P55 million') A Yes, your Honor. A Yes, your Honor. *Q When was that? PJ GARCHITORENA A He called me up earlier, a week before that, that he wants to me pay what I owe the PNCC directly to his office in cash, your Honor.

Response by Mr. Peralta to the testimony of Mr. Tabuena.

ATTY. ESTEBAL

*PJ GARCHITORENA

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

*Q By "I OWE ", you mean the MIAA?

WITNESS *AJ DEL ROSARIO A Yes, your Honor. "Q From whom did you receive the President's memorandum marked Exhibit "1"? Or more precisely, who handed you this memorandum? *AJ DEL ROSARIO A Mrs. Fe Roa Gimenez, your Honor. *Q And what did you say in this discussion you had with him? Q Did you ask Mrs, Fe Gimenez for what purpose the money was being asked? A I just said, "Yes, sir, I will do it/" A The money was in payment for the debt of the MIA Authority to PNCC, your Honor.

*Q Were you the one who asked for a memorandum to be signed by him?

*Q If it was for the payment of such obligation why was there no voucher prepared to cover such payment? In other words, why was the delivery of the money not covered by any voucher?

A No, your Honor.

A The instruction to me was to give it to the Office of the President, your Honor.

*Q After receiving that verbal instruction for you to pay MIAA's obligation with PNCC, did you not on your own accord already prepare the necessary papers and documents for the payment of that obligation?

*PJ GARCHITORENA

A He told me verbally in the telephone that the Order for the payment of that obligation is forthcoming, your Honor. I will receive it.

*Q Be that as it may, why was there no voucher to cover this particular disbursement?

*Q Is this the first time you received such a memorandum from the President?

A I was just told to bring it to the Office of the President, your Honor.

A Yes, your Honor.

*AJ DEL ROSARIO

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

*Q Was that normal procedure for you to pay in cash to the Office of the President for obligations of the MIAA in payment of its obligation to another entity?

A Yes, your Honor.

*Q Did you not inquire, if not from the President, at least from Mrs. Gimenez why this procedure has to be followed instead of the regular procedure? WITNESS A No, sir. A No, your Honor, I was just following the Order to me of the President. *AJ DEL ROSARIO *PJ GARCHITORENA *Q Why did you not ask? *Q So the Order was out of the ordinary? A I was just ordered to do this thing, your Honor. A Yes, your Honor.

*AJ HERMOSISIMA

*Q You agreed to the order of the President notwithstanding the fact that this was not the regular course or Malacaang was not the creditor?

*Q You said there was an "I OWE YOU"? A I saw nothing wrong with that because that is coming, from the President, your Honor. A Yes, your Honor. *Q The amount was not a joke, amounting to P55 million, and you agreed to deliver money in this amount through a mere receipt from the private secretary?

*Q Where is that "I OWE YOU" now?

A All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA owes PNCC that amount.

A I was ordered by the President, your Honor.

*PJ GARCHITORENA *Q Was this payment covered by receipt from the PNCC? *Q There is no question and it can be a matter of judicial knowledge that you have been with the MIA for sometime?

A It was not covered, your Honor.

*Q So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that payment?

A Yes, your Honor.

*Q Prior to 1986? A Based on the order to me by the former President Marcos ordering me to pay that amount to his office and then the mechanics will come after, your Honor. A Yes, your Honor. *Q Is the PNCC a private corporation or government entity? *Q Can you tell us when you became the Manager of MIA? A I think it is partly government, your Honor. A I became Manager of MIA way back, late 1968, your Honor. *PJ GARCHITORENA *Q Long before the MIA was constituted as an independent authority? *Q That is the former CDCP? A Yes, your Honor. A Yes, your Honor. *PJ GARCHITORENA *AJ HERMOSISIMA *Q And by 1986, you have been running the MIA for 18 years? *Q Why were you not made to pay directly, to the PNCC considering that you are the Manager of MIA at that time and the PNCC is a separate corporation, not an adjunct of Malacaang?

WITNESS

A Yes, your Honor. WITNESS *Q And prior to your Joining the MIA, did you ever work for the government? A I was just basing it from the Order of Malacanang to pay PNCC through the Office of the President, your Honor. A No, your Honor. *Q Do you know the President or Chairman of the Board of PNCC? *Q So, is it correct for us to say that your joining the MIA in 1968 as its Manager was your first employment ,with the government? A Yes, your Honor. A Yes, your Honor. "Q How was the obligation of MIAA to PNCC incurred. Was it through the President or Chairman of the Board? *Q While you were Manager of MIA, did you have other subsequent concurrent positions in the government also? A PNCC was the one that constructed the MIA, your Honor. A I was also the Chairman of the Games and Amusement Board, your Honor. *Q Was the obligation incurred through the President or Chairman of the Board or President of the PNCC? In other words, who signed the contract between PNCC and MIAA?

*Q But you were not the executive or operating officer of the Games and Amusement Board?

A Actually, we inherited this obligation, your Honor. The one who signed for this was the former Director of BAT which is General Singzon. Then when the MIA Authority was formed, all the obligations of BAT were transferred to MIAA. So the accountabilities of BAT were transferred to MIAA and we are the ones that are going to pay, your Honor.

A I was, your Honor.

*Q As Chairman you were running the Games and Amusement Board?

*Q Why did you agree to pay to Malacaang when your obligation was with the PNCC?

A Yes, your Honor.

*Q What else, what other government positions did you occupy that time? A I was ordered by the President to do that, your Honor. A I was also Commissioner of the Game Fowl Commission, your Honor.

*PJ GARCHITORENA

*Q That is the cockfighting?

*Q Now, you have P55 million which you were ordered to deliver in cash, not to the creditor of the particular credit, and to be delivered in armored cars to be acknowledged only by a receipt of a personal secretary. After almost 18 years in the government service and having had that much time in dealing with COA people, did it not occur to you to call a COA representative and say, "What will I do here?"

WITNESS A I did not, your Honor. A Yes, your Honor. *PJ GARCHITORENA *Q Here, you were just a member of the Board? *Q Did you not think that at least out of prudence, you should have asked the COA for some guidance on this matter so that you will do it properly?

A Yes, your Honor.

*Q So you were not running the commission?

WITNESS

A Yes, your Honor.

A What I was going to do is, after those things I was going to tell that delivery ordered by the President to the COA, your Honor.

*Q Any other entity? *Q That is true, but what happened here is that you and Mr. Dabao or you and Mr. Peralta signed requests for issuance of Manager's checks and you were accommodated by the PNB Office at Nichols without any internal documentation to justify your request for Manager's checks?

A No more, your Honor.

*Q As far as you can recall, besides being the Manager of the MIA and later the MIAA for approximately 18 years, you also ran the Games and Amusement Board as its executive officer?

A Yes, your Honor.

A Yes, your Honor.

*Q Of course we had no intimation at that time that Mr. Marcos will win the elections but even then, the Daily Express, which was considered to be a newspaper friendly to the Marcoses at that time, would occasionally come with so-called expose, is that not so?

*Q And you were a commissioner only of the Came Fowl Commission? A Yes, your Honor. A Yes, your Honor. *Q And worst, you had the so-called mosquito press that would always come out with the real or imagined scandal in the government and place it in the headline, do you recall that?

*Q Who was running the commission at that time?

A I forgot his name, but he retired already, your Honor. A Yes, your Honor. *Q All of us who joined the government, sooner or later, meet with our Resident COA representative?

*PJ GARCHITORENA

A Yes, your Honor.

Under these circumstances, did you not entertain some apprehension that some disloyal employees might leak you out and banner headline it in some mosquito publications like the Malaya at that time?

*PJ GARCHITORENA WITNESS *Q And one of our unfortunate experience (sic) is when the COA Representative comes to us and says: "Chairman or Manager, this cannot be". And we learn later on that COA has reasons for its procedure and we learn to adopt to them?

A No, your Honor.

WITNESS

*PJ GARCHITORENA

A Yes, your Honor.

*Q As a matter of fact, sometimes we consider it inefficient, sometimes we consider it foolish, but we know there is reason in this apparent madness of the COA and so we comply?

I bring this up because we are trying to find out different areas of fear. We are in the government and we in the government fear the COA and we also fear the press. We might get dragged into press releases on the most innocent thing. You believe that?

A Yes, your Honor. A Yes, your Honor. *Q And usually our best defense is that these activities are properly documented? *Q And more than anything else the COA is ever anxious for proper documentation and proper supporting papers? A Yes, your Honor. A Yes, your Honor. *Q In this particular instance, your witnesses have told us about three (3) different trips from Nichols to Aguado usually late in the day almost in movie style fashion. I mean, the money being loaded in the trunk of your official car and then you had a back-up truck following your car?

*Q Sometimes, regardless of the amount?

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

*Q Is that not quite a fearful experience to you ?

*PJ GARCHITORENA

A I did not think of that at that time, your Honor.

Was that marked in evidence?

*PJ GARCHITORENA

WITNESS

"Q You did not think it fearful to be driving along Roxas Boulevard with P25 million in the trunk of your car?

Yes, your Honor.*PJ GARCHITORENA

What exhibit? WITNESS WITNESS A We have security at that time your Honor. I have here a copy, your Honor. This was the order and it was marked as exhibit "N".

ATTY. ANDRES

Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of his car.

PROS VIERNES

It was marked as Exhibit "M", your Honor. *PJ GARCHITORENA Q How did you know there was an existing liability of MIAA in favor of PNCC at that time?

Thank you for the correction. Even P1 million only. How much more with P5 million inside the trunk of your car, was that not a nervous experience?

A As I have said, your Honor, I never thought of that.

A Because prior to this memorandum of Mr. Tabuena, we prepared the financial statement of MIAA as of December 31, 1985 and it came to my attention that there was an existing liability of around P27,999,000.00, your Honor.

PJ GARCHITORENA Q When was that Financial Statement prepared? Thank you very much, Mr. Tabuena. You are excused. . . .
42

A I prepared it around January 22 or 24, something like that, of 1986, sir. (PERALTA) Q Is it your usual practice to prepare the Financial Statement after the end of the year within three (3) weeks after the end of the year? (He testified on direct examination that he co-signed with Tabuena a memorandum request for the issuance of the Manager's Check for P5 Million upon order of Tabuena and that he [Peralta] was aware that MIAA had an existing obligation with PNCC in the amount of around P27 Million. He affirmed having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but denied having misappropriated for his own benefit said amount or any portion thereof.)

A Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on or before the 4th Friday of the month because there will be a Board of Directors Meeting and the Financial Statement of the prior month will be presented and discussed during the meeting.

*PJ GARCHITORENA CROSS-EXAMINATION BY PROS VIERNES *Q This matter of preparing Financial Statement was not an annual activity but a monthly activity?

Q Will you please tell the Honorable Court why was it necessary for you to cosign with Mr. Tabuena the request for issuance of Manager's check in the amount of P5 million?

A Yes, your Honor. A At that time I was the Acting Financial Services Manager of MIAA, sir, and all withdrawals of funds should have my signature because I was one of the signatories at that time.

*Q This Financial Statement you prepared in January of 1986 recapitulated the financial condition as of the end of the year?

Q As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in similar requests for the issuance of Manager's checks by the PNB?

A Yes, your Honor.

PJ GARCHITORENA A That is the only occasion I signed, sir. Continue. Q Did you say you were ordered by Mr. Tabuena to sign the request? PROS VIERNES A Yes, sir, and I think the order is part of the exhibits and based on that order, I co-signed in the request for the issuance of Manager's check in favor of Mr. Luis Tabuena.

Q You made mention of a request for Escalation Clause by former Minister Ongpin. Did you personally see that request?

PROS VIERNES A When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir. I have no file because I just read it. Q Was there a separate written order for you to co-sign with Mr. Tabuena? Q It was Mr. Tabuena who showed you the letter of Minister Ongpin? WITNESS A Yes, sir. A Yes, sir, an order was given to me by Mr. Tabuena.

*PJ GARCHITORENA

Q And you yourself, returned to your office at MIA?

And that will be Exhibit?

WITNESS

ATTY. ANDRES

A Yes, sir.

Exhibit "2" and "2-A", your Honor.

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

PROS VIERNES

A Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in the office, sir.

Q You also stated that you were with Mr. Tabuena when you withdrew the amount of P5 million from the PNB Extension Office at Villamor?

Q So, even if it was already after 5:00 o'clock in the afternoon, you still went back to your office at MIA?

A Yes, sir. A Yes, sir. Q Why was it necessary for you to go with him on that occasion? PROS VIERNES A Mr. Tabuena requested me to do the counting by million, sir. So what I did was to bundle count the P5 million and it was placed in two (2) peerless boxes.

That will be all, your Honor.

Q Did you actually participate in the counting of the money by bundles?

PJ GARCHITORENA

A Yes, sir.

Redirect?

Q Bundles of how much per bundle?

ATTY. ESTEBAL

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

No redirect, your Honor.

Q No P20s and P10s?

*PJ GARCHITORENA

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

Questions from the Court.

*PJ GARCHITORENA

*AJ DEL ROSARIO

*Q If there were other denominations, you can not recall?

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

A Yes, your Honor. WITNESS PROS VIERNES A Based on the order of President Marcos that we should pay in cash, it was not based on the normal procedure, your Honor. Q In how many boxes were those bills placed? *Q And, as Acting Financial Services Manager, you were aware that all disbursements should be covered by vouchers?

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

Q And you also went with Mr. Tabuena to Aguado?

A Yes, your Honor, the payments should be covered by vouchers. But then, inasmuch as what we did was to prepare a request to the PNB, then this can be covered by Journal Voucher also.

A No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr. Tabuena, I was left behind and I went back to my office at MIA. *Q Was such payment of P5 million covered by a Journal Voucher? Q But the fact is that, this P5 million was withdrawn at passed 5:00 o'clock in the afternoon?

A Yes, your Honor.

A I started counting it I think at around 4:30, sir. It was after office hours. But then I was there at around 4:00 o'clock and we started counting at around 4:30 p.m. because they have to place it in a room, which is the office of the Manager at that time.

*Q Did you present that Journal Voucher here in Court?

A We have a copy, your Honor.

Q And Mr. Tabuena left for Malacaang after 5:00 o'clock in the afternoon of that date?

*Q Do you have a copy or an excerpt of that Journal Voucher presented in Court to show that payment?

A Yes, sir. After we have counted the money, it was placed in the peerless boxes and Mr. Tabuena left for Malacanang.

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

PROS VIERNES

*Q Was this payment of P5 million ever recorded in a cashbook or other accounting books of MIAA ?

A The payment of P5 million was recorded in a Journal Voucher, your Honor.

*Q As a Certified Public Accountant and Financial Manager of the MIAA, did you not consider it proper that a check be issued only after it is covered by a disbursement voucher duly approved by the proper authorities ?

*PJ GARCHITORENA A Your Honor, what we did was to send a request for a Manager's check to the PNB based on the request of Mr. Tabuena and the order of Mr. Tabuena was based on the Order of President Marcos.

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

WITNESS *PJ GARCHITORENA A Yes, your Honor. *Q In your capacity as Financial Services Manager of the MIAA, did you not think it proper to have this transaction covered by a disbursement voucher? *Q There are no other separate documents as part of the application for Manager's Check? WITNESS A Yes, your Honor, there was none. A Based on my experience, payments out of cash can be made through cash vouchers, or even though Journal Vouchers, or even through credit memo, your Honor.

*AJ DEL ROSARIO

*Q After the payment was made, did your office receive any receipt from PNCC?

*AJ HERMOSISIMA

A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, your Honor. Inasmuch as the payment should be made through the Office of the president, I accepted the receipt given by Mrs. Fe Gimenez to Mr. Tabuena.

*Q This was an obligation of the MIAA to the PNCC. Why did you allow a disbursement by means of check in favor of Mr. Luis Tabuena, your own manager?

*Q After receiving that receipt, did you prepare the necessary supporting documents, vouchers, and use that receipt as a supporting document to the voucher?

A We based the payment on the order of Mr. Tabuena because that was the order of President Marcos to pay PNCC through the Office of the President and it should be paid in cash, your Honor.

*Q You are supposed to pay only on legal orders. Did you consider that legal? A Your Honor, a Journal Voucher was prepared for that. ATTY. ESTEBAL *Q How about a disbursement voucher? With due respect to the Honorable Justice, the question calls for a conclusion of the witness.

A Inasmuch as this was a request for Manager's check, no disbursement voucher was prepared, your Honor.

*PJ GARCHITORENA *AJ DEL ROSARIO Considering that tire witness is an expert, witness may answer. *Q Since the payment was made on January 31, I986, and that was very close to the election held in that year, did you not entertain any doubt that the amounts were being used for some other purpose?

WITNESS

ATTY. ESTEBAL

With due respect to the Honorable Justice, we are objecting to the question on the ground that it is improper.

A The order of president Marcos was legal at that time because the order was to pay PNCC the amount of P5 million through the Office of the President and it should be paid in cash, your Honor. And at that time, I know for a fact also that there was an existing P.D. wherein the President of the Republic of the Philippines can transfer funds from one office to another and the PNCC is a quasi government entity at that time.

*AJ DEL ROSARIO *AJ HERMOSISIMA I will withdraw the question. *Q Are you saying that this transaction was made on the basis of that P.D. which you referred to? *PJ GARCHITORENA A I am not aware of the motive of the President, but then since he is the President of the Philippines, his order was to pay the PNCC through the Office of the President, your Honor.

What is the ground for impropriety?

ATTY. ESTEBAL *Q As Financial Manager, why did you allow a payment in cash when ordinarily payment of an obligation of MIAA is supposed to be paid in check? This is not covered in the direct examination, and secondly, I don't think there was any basis, your Honor. A I caused the payment through the name of Mr. Tabuena because that was the order of Mr. Tabuena and also he received an order coming from the President of the Philippines at that time, your Honor.

*PJ GARCHITORENA

Considering the withdrawal of the question, just make the objection on record.

*PJ GARCHITORENA

*AJ HERMOSISIMA

*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts earlier made in the same journal?

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

You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds?

WITNESS WITNESS A Yes, your Honor. When we pay, your Honor, we always look for the necessary documents and at that time I know for a fact that there was this existing liability.

*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature of the transactions?

*PJ GARCHITORENA A Yes, your Honor. When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that there are all of these memoranda.

*Q In other words, as an Accountant, you would not normally authorize such a movement of money unless it is properly documented?

ATTY. ESTEBAL *Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate? With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is. . . WITNESS *PJ GARCHITORENA A As far as I am concerned, your Honor, inasmuch as we have a liability and I was shown the Order of President Marcos to pay PNCC through his office, I feel that the order of the General Manager, the order of President Marcos, and also the memorandum of Minister Ongpin are sufficient to cause the payment of P5 million.

Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching him.

ATTY. ESTEBAL *PJ GARCHITORENA No, your Honor. I am also an accountant that is why I could say that. . . *Q This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned?

*PJ GARCHITORENA

Please be simple in your objection.

WITNESS

ATTY. ESTEBAL

A Because at that time, your Honor, I have knowledge that the President is authorized through a Presidential Decree to transfer government funds from one office to another.

The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was supported, your Honor. *PJ GARCHITORENA *PJ GARCHITORENA *Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act? Overruled, may answer. A I think the liability was duly recorded and appropriations to pay the amount is. . . . (interrupted)

WITNESS

A The transaction was fully documented since we have the order of the General Manager at that time and the order of President Marcos, your Honor.

*PJ GARCHITORENA

*Q Are you saying the Order of the General Manager is an adequate basis for the movement of money?

*Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget what the question is?

A No, your Honor. A Yes, your Honor, because at that time we have also a recorded liability of P27 million. *Q Are you telling us that the debts incurred by MIAA ate covered by the Appropriations Act so that the payment of this debt would be in the same level as the realignment of funds authorized the President? Or are you telling as you did not read the Decree?

*Q we are not talking of whether or not there was a liability. What we are saying is, is the order of the General Manager by itself adequate with no other supporting papers, to justify the movement of funds?

A I was aware of that Decree, your Honor. A Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liability of P27,931,000.00, inasmuch as we have that liability and I was shown the order of President Marcos to pay P5 million through the Office of the President, I considered the order of Mr. Luis Tabuena, the order of President Marcos and also the existing liability of P27 million sufficient to pay the amount of P5 million. Inasmuch as there is also an escalation clause of P99.1 million, the payment of P5 million is fully covered by those existing documents.

*PJ GARCHITORENA

Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds?

*PJ GARCHITORENA

ATTY. ESTEBAL

Yes, your Honor.

*PJ GARCHITORENA

A A written protest was not made, your Honor, but I called the attention of Mr. Tabuena that since this payment was upon the order of President Marcos, then I think as President he can do things which are not ordinary.

*Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he? *Q If you did not prepare a written protest, did you at least prepare a memorandum for the record that this was an extra-ordinary transaction? A No, your Honor. A I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and no written note, your Honor.

*Q In fact, for purposes of internal control, you have different officers and different officials in any company either government or private, which are supposed to check and balance each other, is it not?

PJ GARCHITORENA A Yes, your Honor. Thank you very much Mr. Peralta, you are excused. . . . *Q So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will restrain him?
43

A Yes, your Honor.

*Q These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes?

A Yes, your Honor.

*Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose?

A Yes, your Honor.

*PJ GARCHITORENA

*Q In other words, the co-signatories counter check each other?

WITNESS

This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind upon any material point which presents itself during the trial of a case over which he presides. 44 But not only should his examination be limited to asking "clarificatory" questions, 45 the right should be sparingly and judiciously used; for the rule is that the court should stay out of it as much as possible, neither interfering nor intervening in the conduct of the trial. 46 Here, these limitations were not observed. Hardly in fact can one avoid the impression that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the case against Tabuena and Peralta when the Justices cross-examined the witnesses, their cross- examinations supplementing those made by Prosecutor Viernes and far exceeding the latter's questions in length. The "cold neutrality of an impartial judge" requirement of due process was certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual role of magistrate and advocate. In this connection, the observation made in the Dissenting Opinion to the effect that the majority of this Court was "unduly disturbed" with the number of court questions alone, is quite inaccurate. A substantial portion of the TSN was incorporated in the majority opinion not to focus on "numbers" alone, but more importantly to show that the court questions were in the interest of the prosecution and which thus depart from that common standard of fairness and impartiality. In fact, it is very difficult to be, upon review of the records, confronted with "numbers" without necessarily realizing the partiality of the Court. In "US v. De Sisto" (2 Cir., 1961, 289 F 2d 833), for example, a new trial was required because the trial judge, as in this case, indulged in extensive questioning of defendant and his witnesses, and the reviewing court also had to amplify on "numbers" to bolster this. It was pointed out in the "De Sisto" case that the judge asked 3,115 questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judge's questions to the defendant De Sisto totalled 306, the prosecutor's 347, and the defense counsel's, 201. After referring to these figures, the court stated:

A Yes, your Honor. . . . It is indeed an impressive proportion, but no such mathematical computation is of itself determinative. However, taking all this in conjunction with the long and vigorous examination of the defendant himself by the judge, and the repeated belittling by the judge of defendant's efforts to establish the time that Fine left the pier, we fear that in its zeal for arriving at the facts the court here conveyed to the jury too strong an impression of the court's belief in the defendant's probable guilt to permit the jury freely to perform its own function of independent determination of the facts. . . .

*Q In your case, you would be the counter check for Mr. Tabuena?

A Yes, your Honor.

*Q In the other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position to tell Mr. Tabuena, "I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it"., if in your opinion the disbursement is not proper?

A Yes, your Honor.

*Q Therefore, as a co-signatory, you expected to exercise your judgment as to the propriety of a particular transactions?

The majority believes that the interference by the Sandiganbayan Justices was just too excessive that it cannot be justified under the norm applied to a jury trial, or even under the standard employed in a non-jury trial where the judge is admittedly given more leeway in propounding questions to clarify points and to elicit additional relevant evidence. At the risk of being repetitious, we will amplify on this via some specific examples. Based on the evidence on record, and on the admission of Tabuena himself, the P55 million was delivered to the President's Office thru Mrs. Gimenez, in obedience to the Presidential directive. One Sandiganbayan Justice, however, hurled the following questions to Peralta:

A Yes, your Honor.

AJ DEL ROSARIO

*Q And this is something you know by the nature of your position and because you are a Certified Public Accountant?

Q: Since the payment was made on January 31, 1986, and that was very close to the election held in that year, did you not entertain any doubt that the amounts were being used for some other purposes?

A Yes, your Honor. ATTY. ESTEBAL *AJ DEL ROSARIO With due respect to the Honorable Justice, We are objecting to the question on the ground that it is improper.

*Q You admit that the payment of P5 million and P50 million were unusual in the manner with which they were disposed?

AJ DEL ROSARIO A Yes, your Honor. I will withdraw the question. *Q Did you submit a written protest to the manner in which such amount was being disposed of?

PJ GARCHITORENA

What is the ground for impropriety?

A The transaction was fully documented since we have the order of the General Manager at that time and the order of President Marcos, your Honor.

ATTY. ESTEBAL *Q Are you saying the Order of the General Manager is an adequate basis for the movement of money? This is not covered in the direct examination, and secondly, I don't think there was any basis, Your Honor. *Q We are not talking of whether or not there was a liability. What we are saying is, is the order of the General Manager by itself adequate with no other supporting papers, to justify the movement of funds?

PJ GARCHITORENA

Considering the withdrawal of the question, just make the objection on record.

*PJ GARCHITORENA

Nothing from the preceding questions of counsels or of the court would serve as basis for this question. How then, can this be considered even relevant? What is the connection between the payment made to the President's office and the then forthcoming presidential "snap election"? In another instance, consider the following questions of Presiding Justice Garchitorena:

You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds?

*PJ GARCHITORENA *PJ GARCHITORENA When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that there are all of these memoranda. *Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate?

*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts earlier made in the same journal?

xxx xxx xxx

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

*PJ GARCHITORENA

xxx xxx xxx

*Q This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned?

*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature of the transactions?

*PJ GARCHITORENA

xxx xxx xxx

*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act?

*Q In other words, as an Accountant, you would not normally authorize such a movement of money unless it is properly documented?

*PJ GARCHITORENA

ATTY. ESTEBAL

*Q Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget what the question is?

With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is . . .

xxx xxx xxx

*PJ GARCHITORENA

Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching him.

*Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment of this debt would be in the same level as the realignment of funds authorized the President? Or are you telling as you did not read the Decree?

*PJ GARCHITORENA ATTY. ESTEBAL Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds?

No, your Honor. I am also an accountant that is why I could say that . . .

*PJ GARCHITORENA

ATTY. ESTEBAL

Please be simple in your objection.

Yes, your Honor.

ATTY. ESTEBAL

*PJ GARCHITORENA

The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was supported, your Honor.

*Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was he?

*PJ GARCHITORENA

*Q In fact, for purposes of internal control, you have different in officers and different officials in any company either government or private, which are supposed to check and balance each other, is it not?

Overruled may answer. *Q So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will restrain him?

WITNESS

*Q These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes?

The impartiality of the judge his avoidance of the appearance of becoming the advocate of either one side or the other of the pending controversy is a fundamental and essential rule of special importance in criminal cases. . . 54

*Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose?

*PJ GARCHITORENA

*Q In other words, the co-signatories counter check each other?

Our courts, while never unmindful of their primary duty to administer justice, without fear or favor, and to dispose of these cases speedily and in as inexpensive a manner as is possible for the court and the parties, should refrain from showing any semblance of one-sided or more or less partial attitude in order not to create any false impression in the minds of the litigants. For obvious reasons, it is the bounden duty of all to strive for the preservation of the people's faith in our courts. 55

*Q In your case, you would be the counter check for Mr. Tabuena?

*Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position to tell Mr. Tabuena, "I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it.", if in your opinion the disbursement is not proper?

Time and again this Court has declared that due process requires no less than the cold neutrality of an impartial judge. Bolstering this requirement, we have added that the judge must not only be impartial but must also appear to be impartial, to give added assurance to the parties that his decision will be just. The parties are entitled to no less than this, as a minimum guaranty of due process. 56

*Q Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular transaction ?

*Q And this is something you know by the nature of your position and because you are a Certified Public Accountant? 47

How can these questions be considered clarificatory when they clearly border more on cross-examination questions? Thus, the Dissenting Opinion's focus on the distinction between the two kinds of trial to justify the Sandiganbayan's active participation in the examination of petitioners Tabuena and Peralta and witness Monera, with due respect, appears insignificant to this case. Let it, therefore, be emphasized anew that:

We are well aware of the fear entertained by some that this decision may set a dangerous precedent in that those guilty of enriching themselves at the expense of the public would be able to escape criminal liability by the mere expedient of invoking "good faith". It must never be forgotten, however, that we render justice on a case to case basis, always in consideration of the evidence that is presented. Thus, where the evidence warrants an acquittal, as in this case, we are mandated not only by the dictates of law but likewise of conscience to grant the same. On the other hand, it does not follow that all those similarly accused will necessarily be acquitted upon reliance on this case as a precedent. For the decision in this case to be a precedent, the peculiar circumstances and the evidence that led to the petitioner's acquittal must also be present in subsequent cases.

A trial judge should not participate in the examination of witnesses as to create the impression that he is allied with the prosecution. 48

Furthermore, as between a mere apprehension of a "dangerous precedent" and an actual violation of constitutionally enshrined rights, it is definitely the latter that merits our immediate attention. For the most dangerous precedent arises when we allow ourselves to be carried away by such fears so that it becomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to justice the malefactors of the Marcos regime, we must not succumb to the temptation to commit the greatest injustice of visiting the sins of the wrongdoers upon an innocent.

We doubt not that the sole motive of the learned judge was to ascertain the truth of the transaction, but it is never proper for a judge to discharge the duties of a prosecuting attorney. However anxious a judge may be for the enforcement of the law, he should always remember that he is as much judge in behalf of the defendant accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the state, for the purpose of safeguarding the interests of society. 49

WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta are hereby ACQUITTED of the crime of malversation as defined and penalized under Article 217 of the Revised Penal Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution dated December 20, 1991 are REVERSED and SET ASIDE.

Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length. The circumstances may be such in a given case as to justify the court in so doing. . . . This court, however, has more than once said that the examination of witnesses is the more appropriate function of counsel, and the instances are rare and the conditions exceptional which will justify the presiding judge in conducting an extensive examination. It is always embarrassing for counsel to object to what he may deem improper questions by the court. Then, in conducting a lengthy examination, it would be almost impossible for the judge to preserve a judicial attitude. While he is not a mere figurehead or umpire in a trial, and it is his duty to see that justice is done, he will usually not find it necessary to conduct such examinations. The extent to which this shall be done must largely be a matter of discretion, to be determined by the circumstances of each particular case, but in so doing he must not forget the function of the judge and assume that of an advocate. . .50

SO ORDERED.

Narvasa, C.J., Vitug, Kapunan and Mendoza, JJ., cocnur.

Regalado, Bellosillo, and Torres, Jr., JJ., pro hac vice.

Hermosisima, Jr,., J., took no part.

While it is true that the manner in which a witness shall be examined is largely in the discretion of the trial judge, it must be understood that we have not adopted in this country the practice of making the presiding judge the chief inquisitor. It is better to observe our time-honored custom of orderly judicial procedure, even at the expense of occasional delays. . . . The judge is an important figure in the trial of a cause, and while he has the right, and it is often his duty, to question witnesses to the end that justice shall prevail, we can conceive of no other 51 reason, for him to take the trial of the cause out of the hands of counsel.

The examination of witnesses is the more appropriate function of counsel, and it is believed the instances are rare and the conditions exceptional in a high degree which will justify the presiding judge in entering upon and conducting an extended examination of a witness, and that the exercise of a sound discretion will seldom deem such action necessary or advisable. 52

He [the judge] may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in, the examination of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto. 53

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