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(268 SCRA 332, FEBRUARY 17, 1997)

Then Pres. Ferdinand Marcos instructed Luis Tabuena, General Manager of the Manila
International Airport Authority (MIAA), over the phone to pay directly through the
presidents office and in cash what the MIAA owes the Phil. National Construction Corp
(PNCC). About a week later, Tabuena received a Presidential memorandum from Mrs. Fe
Roa-Gimenez, private secretary of Pres. Marcos reiterating such verbal instruction.
In obedience to Pres. Marcos instruction, Tabuena, with the help of Gerardo Dabao and
Adolfo Peralta, the Asst. Gen. Mgr. and the Acting Finance Services Mgr.of MIAA,
respectively, caused the release of P55M of MIAA funds in three (3) withdrawals* (25M
on J anuary 10, 1986; 25M on J anuary 16,1986; 5M on J anuary 31, 1986) and delivered
the money to the office of Mrs. Gimenez located at Aguado St near Malacaang. It was
only upon delivery of the last installment that she issued a receipt for all the amounts she
received from Tabuena.
and 2
letter-request for managers check co-signatory: Dabao; 3
Tabuena and co-signatory requested (thru letter) the PNB extension office at MIAA
depository branch to issue a managers check payable to Tabuena; Check was encashed
at PNB Villamor branch.
Later, it turned out that PNCC never received the money.
Luis Tabuena and Adolfo Peralta appeal the Sandiganbayan decision convicting them of
malversation of MIAA funds in the amount of P55M.
Petitioners: merely complying with the Marcos Memorandum which ordered him to
forward immediately to the Office of the President the P55M in cash as partial payment
of MIAAs obligations to PNCC and that he was of the belief that MIAA indeed had
Further, petitioners claimed that they were charged with intentional malversation, as
alleged in the amended information, but it would appear that they were convicted for
malversation with negligence. They allege that their conviction of a crime different from
that charged violated their constitutional right to be informed of the accusation.

(1) Whether or not the Sandiganbayan convicted them of a crime not charged in the amended
information (CONSTI); and
(2) Whether or not Tabuena and Peralta acted in good faith .(CRIM)

(1) No. Malversation is committed either intentionally or by negligence.
The dolo or the culpa present in the offense is only a modality in the perpetration of the felony.
Even if the mode charged differs from the mode proved, the same offense of malversation is
Moreover; Section 5, Rule 116, of the Rules of Court does not require that all the essential
elements of the offense charged in the information be proved, it being sufficient that some of
said essential elements or ingredients thereof be established to constitute the crime proved. . . .
The fact that the information does not allege that the falsification was committed with
imprudence is of no moment for here this deficiency appears supplied by the evidence submitted
by appellant himself and the result has proven beneficial to him. Certainly, having alleged that
the falsification has been willful, it would be incongruous to allege at the same time that it was
committed with imprudence for a charge of criminal intent is incompatible with the concept of
(2)Yes. Tabuena acted in strict compliance with the MARCOS Memorandum.
First. Marcos was undeniably Tabuena's superior the former being then the President
of the Republic who unquestionably exercised control over government agencies such as
the MIAA and PNCC. 15 In other words, Marcos had a say in matters involving inter-
government agency affairs and transactions, such as for instance, directing payment of
liability of one entity to another and the manner in which it should be carried out. And as
a recipient of such kind of a directive coming from the highest official of the land no less,
good faith should be read on Tabuena's compliance, without hesitation nor any question,
with the MARCOS Memorandum. Tabuena therefore is entitled to the justifying
circumstance of "Any person who acts in obedience to an order issued by a superior for
some lawful purpose." 16 The subordinate-superior relationship between Tabuena and
Marcos is clear. And so too, is the lawfulness of the order contained in the MARCOS
Memorandum, as it has for its purpose partial payment of the liability of one government
agency (MIAA) to another (PNCC).
However, the unlawfulness of the MARCOS Memorandum was being argued, on the
observation, for instance, that the Ongpin Memo referred to in the presidential directive
reveals a liability of only about P34.5 Million. 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. (supported by the testimony of defense witness
Monera, receivables fr MIA as of December 31, 1985 was P102.475M)
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.
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.
*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
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
*It must be stressed that the MARCOS Memorandum directed Tabuena "to pay
immediately the Philippine National Construction Corporation, thru this office the sum of
FIFTY FIVE MILLION. . .", and that was what Tabuena precisely did when he delivered
the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of
the President inasmuch as Mrs. Gimenez was Marcos' secretary then. Furthermore,
Tabuena had reasonable ground to believe that the President was entitled to receive the
P55 Million since he was certainly aware that Marcos, as Chief Executive, exercised
supervision and control over government agencies. And the good faith of Tabuena in
having delivered the money to the President's office (thru Mrs. Gimenez), in strict
compliance with the MARCOS Memorandum, was not at all affected even if it later
turned out that PNCC never received the money. Thus, it has been said that:
Good faith in the payment of public funds relieves a public officer from the crime of
Not every unauthorized payment of public funds is malversation. There is malversation
only if the public officer who has custody of public funds should appropriate the same, or
shall take or misappropriate or shall consent, or through abandonment or negligence shall
permit any other person to take such public funds. Where the payment of public funds has
been made in good faith, and there is reasonable ground to believe that the public officer
to whom the fund had been paid was entitled thereto, he is deemed to have acted in good
faith, there is no criminal intent, and the payment, if it turns out that it is unauthorized,
renders him only civilly but not criminally liable.
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.

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.

SUMMARY: 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. Obidentia est
legis essential.

However, a more compelling reason for the ACQUITTAL is the violation of the accused
basic constitutional right to due process. Records show that the Sandiganbayan actively
took part in the questioning of a defense witness and of the accused themselves. The
questions of the court were in the nature of cross examinations characteristic of confronta
tion, probing and insinuation. Tabuena and Peralta may not have raised the issue as an
error, there is nevertheless no impediment for the court to consider such matter as
additional basis for a reversal since the settled doctrine is that an appeal throws the
wholecase open to review, and it becomes the duty of the appellate court to correct such
errorsas may be found in the judgment appealed from whether they are made the subject
of assignments of error or not. 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. Time and again the
Court has declared that due process requires no less than the cold neutrality of an
impartial judge. 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. HENCE, Luis
Tabuena and Adolfo Peralta are acquitted of the crime of malversation.