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G.R. No.

121098
September 4, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROGELIO ANTIDO y ABALAN, accused-appellant.
DAVIDE, JR., J.:
Accused Rogelio Antido y Abalan appeals from the decision of 25 January 1995 1 of
the Regional Trial Court (RTC) of Davao City, Branch 17, in Criminal Case No.
33585-94, finding him guilty of two counts of rape committed on 8 February and 18
March 1994 and sentencing him in each to suffer the penalty of reclusion perpetua
with all the accessory penalties, to pay complainant Jonejeel Jugadora 2 and her
parents the amount of P30,000.00 and to pay the costs of the suit.
Complainant Jonejeel Jugadora, then only fifteen years of age when she was
allegedly raped, initiated the prosecution therefor by filing an affidavit with the
Office of the City Prosecutor of Davao City, subscribed and sworn to on 23 March
1994, 3 charging accused with rape allegedly committed on 8 February, 14
February and 18 March of 1994. As the accused had already been arrested, 2nd
Assistant City Prosecutor Calixto A. Esparagoza proceeded under Section 7 of Rule
112 of the Rules of Court. Finding probable cause, he filed an Information 4 for the
alleged rape committed on 18 March 1994, but in his Resolution 5 recommending
the filing of said Information, he withheld action on the two other counts and
advised complainant to file two separate complaints thereon "so that a regular
preliminary investigation can be conducted." 6
The accusatory portion of the Information filed on 23 March 1994 with the Regional
Trial Court (RTC) of Davao City, reads as follows:
That on or about March 18, 1994, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-mentioned accused, by means of
force and intimidation, did then and there wilfully, unlawfully and feloniously have
carnal knowledge with one Jonejeel Jugadora, 15 years of age, against her will.
Contrary to law.
The case was docketed as Criminal Case No. 33585-94 and assigned to Branch 17
of said court.
Accused entered a plea of not guilty upon arraignment. 7 Trial on the merits
thereafter ensued.
The prosecution's witnesses were: the complainant, Jonejeel Jugadora; her mother,
Tessie Jugadora; 8 PO3 Edgardo Mateo; PO1 Antonio Diagbel; Dr. Danilo Ledesma,
Medico-Legal Officer of the National Bureau of Investigation (NBI); and Janice
Betonio, Jonejeel's neighbor and classmate. Jonejeel and Tessie were recalled as
1

rebuttal witnesses. The witnesses presented by the defense were: the accused;
Lolita Gumapac; Milagros Acidillo, accused's neighbor; Jovita Alvarez, accused's
former boarder; State Prosecutor Isaac Robillo, Jr.; and Atty. Reni Dublin, counsel for
accused.
The factual backdrop of the case as established by the testimonies of the
witnesses for the prosecution is as follows:
Complainant Jonejeel Jugadora, the third in a brood of ten, was born on 5 July 1978
and resided with her parents in Tibangon, Pantukan, Davao del Norte. On or prior
to 12 January 1994, she was a freshman high school student in Pantukan. On the
morning of 12 January 1994, instead of proceeding to school, Jonejeel and her
classmate, Janice Betonio, went to Davao City to buy groceries. Jonejeel did not ask
permission from her parents and brought a bag containing her books. At Davao
City, they shopped at the J.S. Gaisano department store, and from there, watched a
movie. As they were oblivious of the time, they were overtaken by night. They then
went to San Pedro Street where they were approached by a certain Lita, also
known as Gina, who invited them to stay in her room at a boarding house in Piapi,
Boulevard, Davao City, near the Sta. Ana Police Sub-station. Having spent all their
money, they had no choice but to accept the invitation and ended up staying at
Gina's residence for almost a month. Since they had no income, Gina provided for
their meals. Subsequently, Gina was evicted from her boarding house and moved
to the house of the accused and occupied a room thereat. Jonejeel and Janice were
constrained to go with Gina and stay at accused's house. At one time, Gina shut
them out of her rented room, but accused had them sleep in his room. Although
they did not want to, accused "ordered" them to sleep there. Since then, they slept
with the accused on his bed. The accused took good care of their daily subsistence
needs, and, in turn, they would wash his clothes and cook for him. 9
As it turned out, this Lita or Gina, as admitted by Jonejeel on cross-examination,
was a prostitute. 10
On the night of 8 February 1994, accused brought Jonejeel and Janice to his room.
The three slept together on accused's bed, with Jonejeel lying in between accused
and Janice. Shortly thereafter, accused undressed Jonejeel, who touched Janice to
wake her up. Janice awoke, but could not do anything as accused pointed a doublebladed knife at them, and warned them he would kill or bury them alive if they
made noise. Accused, then naked, lay on top of Jonejeel and abused her. 11
On cross-examination, 12 Jonejeel likewise disclosed that on the night of 14
February 1994, she and Janice slept with the accused on his bed, when he again
undressed and abused Jonejeel. The following morning, she performed her usual
household chores washing clothes, cleaning the room and cooking. She did not
2

tell anybody about what happened due to fear, as accused had already
"forewarned" her and Janice. 13
On the night of 18 March 1994, Jonejeel was alone with the accused on his bed as
Janice had earlier left his house to live elsewhere. Accused again abused Jonejeel
after he took her dress off and removed her panty. Although she felt pain and cried,
he admonished her not to shout or resist otherwise he would kill and bury her
alive. 14
Sometime after 18 March 1994, Jonejeel, through the help of a certain Joy, escaped
from accused's residence. Joy then brought Jonejeel to Calinan, Davao City. 15
The Jugadora family first learned of Jonejeel's disappearance on 12 January 1994
upon Mrs. Jugadora's return to her residence in Pantukan from her work in Tagum.
According to Mrs. Jugadora, they looked for Jonejeel in Tagum, thinking that she
could have gone to Mrs. Jugadora's mother. Not finding Jonejeel in Tagum, they
went to other places in Davao City and Davao del Sur to look for her, but failed to
find her. 16
The parents of Jonejeel learned of the latter's whereabouts only when Janice
Betonio returned to Pantukan on 16 March 1994 after she ran away from the
accused's house. 17 Jonejeel's father met with Janice, who told him that Jonejeel
was staying in Jacinto St., near the Sta. Ana Police Station in Davao City. On 20
March 1994, Mr. and Mrs. Jugadora, accompanied by Jovelyn, sister of Mr. Jugadora,
went to Davao City to look for Jonejeel, but could not find her at the place
mentioned. They decided to fetch Janice so she could point out the specific place
where Jonejeel stayed and then sought assistance from the Sta. Ana Police Station.
On 21 March 1994, Jonejeel's parents, together with Janice, returned to Davao City.
Accompanied by the police, they proceeded to the house of accused, but saw him
only that afternoon. After accused told them that Jonejeel had already left his
residence, the police brought him to the police station. Sometime later, a small boy
informed Jonejeel's parents that a certain Joy brought Jonejeel to Calinan, Davao
City. Finally, they were able to find. Jonejeel in Calinan on 22 March 1994. They
brought her to the Sta. Ana Police Station where she was investigated. 18
On 22 March 1994, Jonejeel was examined by Dr. Danilo Ledesma of the Davao City
Health Office. His findings, which he entered in his Medico-Legal Report, 19 were as
follows:
General Physical Examination:
Ht. 151.0 cms. Wt. 54.0 kgs.
Fairly nourished, normally
ambulatory subject.

developed,
3

conscious,

coherent,

cooperative,

Breasts:
Fully developed, hemispherical, firm. Areola, light brown, 3.8 cms, in
diameter. Nipples, light brown, protruding, 1.0 cm, in diameter.
No extra-genital injuries noted.
Genital Examination:
Pubic hair, growing, sparse. Labia majora and minora, coaptated. Fourchette, lax.
Vestibule, pinkish, smooth. Hymen, thick, tall, with healed, deep laceration at 2
and 9 o'clock positions corresponding to the face of the watch. Hymenal orifice,
originally annular, admits a tube, 2.75 cms. in diameter. Vaginal walls, tight.
Rugosities, prominent.
Conclusions:
1.)
No evident signs of extragenital physical injuries noted at the time of
examination.
2.)

Healed hymenal lacerations, present.

Remarks: Semenalogy: NEGATIVE FOR SPERMATOZOA


PRESENCE OF FUNGUS, PUS CELLS = + + +
Dr. Ledesma opined that the healed lacerations on Jonejeel's hymen were caused
by a male reproductive organ, and jibed with the information given him by Jonejeel
that she was raped on 8 February 1994. Dr. Ledesma declared that she could have
been raped anywhere from three weeks to four months prior to the examination.
20
On the other hand, the version of the accused established the following facts:
Accused Rogelio Antido, a 46-year old electrician and resident of Quezon
Boulevard, Davao City, augmented his income by converting his two-storey
residential house into a boarding house. On 19 February 1994, a certain Gina
Magno, together with her companions, Jonejeel and Janice, became his boarders.
One day, on suspicion that Jonejeel and Janice took her personal belongings, Gina
drove them out of the room. Sympathetic to their plight, accused permitted Janice
and Jonejeel to stay in his house and provided them with food. In return, they
performed certain household chores. Once, when Jonejeel was sick, he even
bought medicine for her. Although he admonished them to return home, they
refused as they felt unwanted and uncared for by their parents. On 18 March 1994,
at around noon, he was invited by a neighbor to a birthday party. He stayed at the
celebrant's house overnight, played mahjong and returned home only the following
morning. On 20 March 1994, he was invited by Leopoldo Man-wat, a fraternity
brother, to a baptismal party. Upon his return that afternoon, Mrs. Tessie Jugadora,
4

her husband, and a certain policeman confronted him about Jonejeel's


whereabouts. Accused informed them that Jonejeel was not in his house at that
time, although when he left for the baptismal party at noon, she was still around.
After Tessie, her husband and the policeman left, accused found a note signed by
Jonejeel, requesting him to give a letter she placed under an ashtray to her
Caucasian boyfriend. The following day, Tessie returned. Accused showed her the
letter of Jonejeel, then he was arrested and brought to the Sta. Ana Police Station.
21
Lolita Gumapac testified that complainant and Janice were boarders of one Mr.
Alviar at Jacinto Extension, Bucana, Davao City until 19 February 1994. 22
Milagros Acidillo, a neighbor and friend of accused, declared that on 18 March
1994, accused was at her residence to celebrate a birthday party and played
mahjong the entire night until the following morning. 23
Isaac Robillo, Jr., State Prosecutor I, City Prosecution Office of Davao City, declared
that complainant filed a complaint, docketed as I.S. Nos. 94-2648 and 94-2649, in
his office pertaining to the rape incidents that happened on 7 (should be 8) and 14
February 1994. But on the basis of the complaint, the affidavits of the witnesses,
record in the police blotter, and the findings of the medico-legal officer, Robillo
believed that the two instances of rape could not have been committed and,
accordingly, handed down a joint resolution dismissing the complaint. 24
Jovito Alvarez testified that she distributed beauty products among the prostitutes
of San Pedro Street in Davao City. She knew that Jonejeel and Janice were
prostitutes, had sold them her beauty products and even extended credit to them.
At one time, they prodded her to introduce them to prospective customers. Even
before the two became boarders of the accused, she had seen them plying the
streets on board a white Mazda car in the company of a male Caucasian. 25
Atty. Reni M. Dublin testified that sometime in February 1994, he noticed Jonejeel
and Janice staying at the house of the accused. In response to Dublin's inquiry
about the two, accused told Dublin that they were runaways and were being taken
care of by Gina, accused's boarder. Atty. Dublin warned that accused might one
day run into trouble with their parents, but accused replied that he had no means
of verifying their residences and other personal circumstances. Atty. Dublin noticed
that the two would go home at daybreak, delivered by a white Mazda car; and at
other times, he would see them late into the night wandering in dark alleys. 26
At the rebuttal stage, Jonejeel testified that she was not a prostitute, had no
Caucasian boyfriend and did not write the letter alleged by the accused to have
been written by her. 27 Tessie, on her part, claimed that Jonejeel was never a
prostitute. 28
5

In its Judgment 29 of 25 January 1995, the trial court found the accused guilty
beyond reasonable doubt of two counts of rape and disposed, as follows:
Accordingly, pursuant to Sec. 11, par. 1 of Republic Act 7659, finding the evidence
of the prosecution, sufficient, to prove the guilt of the accused beyond reasonable
doubt, accused Rogelio Antido, alias Dodong Antido, without any mitigating nor
aggravating circumstances attendant in the commission of the offense charged, is
sentenced to suffer the penalty of reclusion perpetua, in [sic] two counts, for rape
committed against the complainant Jonejeel Jugadura both on February 8, 1994
and March 18, 1994, together with accessory penalty [sic], as provided for by law.
Pursuant to Art. 100 in relation to Art. 104 of the Revised Penal Code, governing
civil indemnity, by way of civil liability, on account of the beastly act of accused, in
abusing complainant Jonejeel Jugadura, disregarding her minority and under his
custody accused is furthermore ordered, to pay complainant and her parents the
amount of P30,000.00 by way of civil indemnity, as well as to pay the cost of this
suit.
SO ORDERED.
The trial court gave full faith and credit to the testimony of the offended party,
thus:
The court cannot but believe the natural, direct and without hesitation [sic]
testimony of complainant, on how she narrated the above-acts of accused, despite
her occasional faltering by crying if size she remembers [sic] her ordeals and
recalling the details of what happened but in a nutshell, she was outrightly
vehement on accused [sic] act of abusing her on February 8, 1994 and March 18,
1994.
Complainant's credibility despite insinuation of accused [sic] lack of truthfulness,
deserve [sic] this court's acceptance, finding her orientation as a poor, humble and
obedient daughter, there is no way she will [sic] fabricate a false accusation
against the accused.
On the other hand, it found unconvincing accused's defense of alibi, and unreliable
the testimonies of defense witnesses Lolita Gumapac, Milagros Acidillo and Lolita
Alvarez, who were accused's "close associates" and whose capacity to tell the truth
was "questionable." The RTC considered the dismissal by State Prosecutor Robillo
of the two complaints for rape as based "purely on his personal evaluation without
a thorough investigation of the complainant herself through questions and answers
before him, but merely upon appearances of counsel for the accused."
As to the intimidation consisting of the accused's constant threat to kill or bury her
alive should she make known what was done to her, the trial court found it
6

sufficient to justify Jonejeel's actuations. As a young and innocent girl with a


"fragile mentality," these threats sent a "very heavy message" that if she would
not obey, "serious disaster on her life" would follow. The trial court further ruled
that the case for the prosecution was made "completely satisfactory" by the
testimony of Dr. Ledesma.
Finally, the trial court justified its conviction of the accused for the alleged rape
"committed on February 8, 1994," although it was not charged in the information
on ground of "waiver" since the accused failed to object to the evidence presented
by the prosecution to prove it. 30
In his Appellant's Brief, accused submitted the following assignment of errors:
1.
THE PRESIDING JUDGE SERIOUSLY ERRED IN CONVICTING THE ACCUSED OF
THE CRIME OF RAPE IN THE PROSECUTION'S WEAK EVIDENCE WHICH ARE MARKED
WITH INCREDIBLE AND RIDICULOUS INCONSISTENCIES THAT ARE SUFFICIENT, TO
THE MIND OF AN AVERAGE PERSON, TO CAST REASONABLE DOUBT ON ACCUSED'S
GUILT, AND WHICH CONVICTION IS A COMPLETE DEPARTURE OF [sic] THE
JURISPRUDENCE LAID BY THIS HONORABLE SUPREME COURT WITH RESPECT THE
[sic] APPRECIATION OF EVIDENCE IN RAPE CASES.
2.
THE PRESIDING JUDGE SERIOUSLY ERRED IN STRETCHING THE EVIDENCE OF
THE PROSECUTION AND CONVERSELY IN NOT GIVING WEIGHT TO THE EVIDENCE
OF THE ACCUSED IN PROVING HIS INNOCENCE OF THE CHARGE.
3.
THE PRESIDING JUDGE GRAVELY ERRED IN CONVICTING THE ACCUSED OF
THE CRIME NOT CHARGED IN THE INFORMATION ON THE ONE HAND, AND IN
ACQUITTING THE ACCUSED OF STILL ANOTHER CRIME NOT CHARGED IN THE
INFORMATION WHICH, WHEN TAKEN TOGETHER, WOULD CERTAINLY SHOW THE
INCONSISTENCIES OF THE JUDGMENT.
Under the first assigned error, accused urges us to pay no heed to testimonies of
Jonejeel and Janice for, contrary to the virtues heaped upon them by the trial court,
they were, in fact, "notorious and daring ran-aways [sic] lured by the fast life in the
cities [sic]." Accused found it difficult to comprehend, granting their story of the
buying spree in Davao City to be true, why Jonejeel and Janice could not return to
their respective homes in Pantukan, Davao Province, the day after they were
furnished lodging for the night of January 12, 1994 by Lita or Gina, a prostitute;
and considered it beyond the natural course of events that both stayed with Gina
for the next three weeks. Accused then found it more perplexing as to why after
Gina was driven out from her boarding house and forced to move to accused's
house, Jonejeel and Janice still did not return to their homes and instead chose to
go with Gina.

Accused further claimed that nothing was mentioned about rape in the reports
made to the police authorities by Tessie Jugadora and Janice, and recorded in the
Record of Events 31 of the Office of the Investigation Division of the Sta. Ana Police
Station of the Davao Metropolitan District Command of the Department of Interiors
and Local Government; all that was recorded was that Jonejeel "was being held at
the house of the accused and sold on [sic] customers for sex every night."
Accused likewise maintained that the testimonies of Jonejeel and Janice painted a
picture where the commission of rape was "incredible and for being against normal
human actuations, experience and normal course of events." For one thing, both
slept on the same bed with the accused with Jonejeel always beside the accused.
As the latter was not Jonejeel's husband, sleeping beside him was "not only telling
of the character of [Jonejeel], but likewise of the impossibility of the commission of
rape," in view of the presence of the third person: "possible prying eyes of an
eyewitness and source for help or assistance." For another, as Jonejeel merely
pulled Janice without saying anything, this act could hardly be classified as
resistance. Moreover, as stated in the affidavit of Janice 32 and confirmed by her in
court, Janice heard the accused and Jonejeel "moaning" when both were naked and
accused on top of the other. These sounds would be unusual if the intercourse was
forcible.
Finally, accused argued that the actuations of Jonejeel after the alleged rape on 8
February 1994 did not correspond to the normal conduct or reaction of a victim of
a heinous crime. After the act was consummated, the accused returned to his bed
and slept; Jonejeel first cried, but then also slept, still beside the accused. The
following day, Jonejeel routinely performed her chores, then on the succeeding
nights, Jonejeel still slept beside the accused.
As to the second assigned error, accused condemned the trial judge for
disregarding the uncontroverted testimony of Lolita Gumapac, corroborated by the
testimony of accused and his counsel, regarding the love letter 33 left behind by
Jonejeel in accused's house, and the findings of the court commissioner appointed
to conduct the ocular inspection of the premises of the accused's residence.
Anent the third assigned error, accused contended that the trial judge committed
"horrible ignorance of the law and the constitution" in convicting him of the rape
allegedly committed on 8 February 1994 despite the information charging him with
only one rape committed on 18 March 1994, thereby disregarding the ruling of this
Court in People v. Joya. 34 As to the justification of the trial court that his failure to
object to the evidence proving the rape committed on 8 February 1994 amounted
to a waiver of his right to be informed of the nature and cause of the accusation,
accused invoked this Court's ruling in People v. Ignacio 35 that proof may be
submitted of an alleged second rape not charged in the information if necessary to
resolve credibility. Accused also stressed the fact that the Investigating Prosecutor
8

had already dismissed the complaints for the alleged rapes committed on 8
February and 14 February 1994. His conviction then for the rape allegedly
committed on 8 February 1994 "is not only a flagrant violation of [his]
Constitutional right to be informed of the accusation against him but also a blatant
violation of the rules that no information cognizable by the Regional Trial Court
shall be filed without the proper preliminary investigation conducted."
In the Brief for the Appellee, the Solicitor General agrees with the findings and
conclusions of the trial court, except as to: (1) the conviction of the accused for the
rape allegedly committed on 8 February 1994, which Appellee submits to be
erroneous; 36 and (2) as to the civil indemnity awarded which should be increased
to P50,000.00 in keeping with recent case law. 37
In rape cases, the following guidelines and principles are well-entrenched: (1) an
accusation for rape can be made with facility, it is difficult to prove but more
difficult for the person accused, though innocent, to disprove it; (2) in view of the
intrinsic nature of the crime of rape where two persons are usually involved, the
testimony of the complainant must be scrutinized with extreme caution; and (3)
the evidence for the prosecution must stand or fall on its own merits, and cannot
be allowed to draw strength from the weakness of the evidence for the defense. 38
It is likewise doctrinally settled that when a woman says she has been raped, she
says in effect all that is necessary to show that rape has been committed and that
if her testimony meets the test of credibility, the accused may be convicted on the
basis thereof. 39 Note that to be sufficient for conviction, the victim's testimony
must meet the lest of credibility. It must be impeccable and ring true throughout,
or bear the stamp of absolute truth and candor. 40 And for evidence to be
believed, it must not only proceed from the mouth of a credible witness, it must
also be credible in itself, such as the common experience and observation of
mankind can approve as probable under the circumstances. 41
The matter of assigning value and weight to the testimony of witnesses and the
determination of their credibility are functions of the trial court. This court has
consistently adhered to the policy, founded on reason and experience, that it will
not generally disturb the findings of the trial court on these matters considering
that the trial court is in a position to decide the question, having heard the
witnesses themselves and observed their deportment and manner of testifying
during the trial, unless certain facts of substance and value have been plainly
overlooked, which, if considered, might affect the result, or that such findings are
clearly shown to be arbitrary. 42
The Court agrees with the trial court that the evidence for the accused, relying
primarily on alibi, is very weak. For alibi to prosper, it is not enough to prove that
accused was somewhere else when the crime was committed, he must further
9

demonstrate that it was physically impossible for him to have been at the scene of
the crime at the time it was committed. 43 The accused here, asserting that he
spent the night at a neighbor's house, has not shown that impossibility.
Nevertheless, the weakness of his defense cannot strengthen the prosecution's
case since the prosecution must rely solely on the strength of its evidence and not
the weakness of that of the defense. 44 The Constitution guarantees to an accused
the right to be presumed innocent until the contrary is proved; 45 the burden then
is on the prosecution to prove his guilt beyond reasonable doubt. 46 Hence, the
prosecution's evidence must stand or fall on its own merits and cannot be allowed
to draw strength from the weakness of the evidence for the defense. 47
After a painstaking review of the record in this case and assessment of the
evidence for the prosecution, the Court finds such evidence insufficient to establish
the guilt of the accused for the crime of rape beyond reasonable doubt. The trial
court failed to appreciate material and relevant facts and circumstances which cast
much doubt on the story of Jonejeel that she was raped by the accused on 18
March 1994.
Jonejeel claimed that accused raped her on 18 March 1994 using the same form or
manner of intimidation as that used by him for the alleged rape on 8 February
1994, i.e., he would kill her or bury her alive if she shouted. It is therefore vital to
determine if, indeed, accused so intimidated her in connection with the incident of
8 February 1994. In her direct testimony, she declared as follows:
Q

While in the house of accused on February 8, 1994, what happened if any?

A.

He abused me, sir.

Q
Please tell the court where in what particular place were you abused by the
accused?
A

In the room.

What time was that if you remember?

I cannot recall the time.

Please describe to the court how you were abused?

He undressed me, sir.

And since he undressed you what happened?

He abused me after undressing me, sir.

In what particular part of the house did he abuse you?


10

Inside the room.

Whose room is that?

Room of Dodong Antido.

Why were you in the room of Dodong Antido?

Because he brought us there inside his room.

You said he brought us, with whom were you with?

With Janice at that time.

Where was Janice at that time when the accused abused you?

She was beside me at that time.

What did Janice do when you were abused by the accused?

A
She was not able to do anything because Dodong Antido pointed a knife at
us, sir.
Q

What kind of knife was that?

Double bladed knife, sir.

Aside from pointing a knife at you and Janice, what else did he do?

He warned us to [sic] to say anything, sir.

Q
Now, you said the accused removed your panty or undressed you, please
describe to the Honorable Court who [sic] the accused did it?
A

He removed my clothings, undressed me.

What were you wearing at that time?

I was wearing pants at that time.

And how many times did the accused abuse you?

ATTY. DUBLIN:
We object, may we know what particular time he is referring to your HONOR?
PROSECUTOR:
11

We reform.
Q

What did accused tell you when he was abusing you?

That if we will create scandal he will kill us.

What did you feel when he abused you?

COURT:
Let her answer the questions clearly tell her to speak clearly.
A

I felt pain, sir.

Now, when Dodong Antido abused you what did you do if any?

Nothing, sir

Why?

A
Actually I wanted to cry for help but he as [sic] holding and pointing the knife
at me at that time.
ATTY. DUBLIN:
May we ask witness to speak louder so that we can hear your Honor.
COURT:
You speak louder so that your answer can be heard.
Q

When accused abused you did you like it?

No, your Honor.

Did you shout, did you cry, what did you do?

I cried, your Honor.

You did not shout for help?

No, your Honor because I was afraid he had a knife pointed at me, I cried.

COURT:
Proceed.
PROSECUTOR:
12

If you can recall how many times did the accused abuse you?

Three (3) times.

Can you recall the day?

ATTY. DUBLIN:
Misleading premise, what is asked at that time how many times and the answer is
3 times, counsel tends to put in variance in that last answer.
PROSECUTOR:
Q
The question is how many times were you abused, we are on follow up
question.
COURT:
He [sic] said 3 times on that night. 48
It is clear from complainant's testimony that she was first undressed, then accused
succeeded in abusing her because he threatened her and Janice with a doublebladed knife then warned them not to say anything or create a scandal, otherwise
he would kill them.
On cross-examination, Jonejeel testified that she and Janice could not "do
anything" because accused had already "forewarned" them that if they would
make any noise, he would kill or bury them alive, thus:
Q

The accused took off your dress while you were lying down?

Yes, sir.

And Janice did not do anything, as you said she woke up?

No, she did not do anything because of fear, accused forewarned us already.

How did he forewarn you?

That if we will make noice [sic] he will kill us or he will bury us alive. 49

However, Janice never corroborated Jonejeel's testimony. The former did not testify
that accused had a knife, pointed it at them, or threatened to kill them or bury
them alive if they would make any noise or create scandal. All that Janice testified
on direct examination regarding the incident of 8 February 1994 was the following:
Q

Now, on February 8, where did you stay or sleep if you can still recall?
13

in Dodong Antido's place.

xxx

xxx

xxx

Q
In what part of the house of Dodong Antido were you sleeping on February 8,
1994?
A

In his room.

With whom?

Jingjing 50 Jugadura.

And how about the owner of the house, where was he sleeping at that time?

The three of us simultaneously entered the room of Dodong Antido.

Q
What time was that when you entered the room of Dodong Antido to sleep, if
you can recall?
A

I cannot tell what time was that, it was already nighttime.

Q
While there, the room of Dodong Antido, can you tell the Honorable Court
what transpired?
A

We slept.

Who was beside you in sleeping?

Jingjing Jugadura.

How about Dodong Antido where was he in relation to the place?

He was also beside Jingjing at that time.

What happened that time?

He raped her.

Who raped her you are referring to whom?

Jingjing was raped by Dodong Antido?

You said, you were sleeping, tell the court, how did you know about that fact?

A
Because at that time, when we were sleeping, I took hold of the skirt of
Jingjing and it was pulled away by Dodong Antido.
Q

And when it was pulled by Dodong Antido what happened next?


14

After that, he placed himself on top of Jingjing.

What did Jingjing do if any, when the accused was on top of her?

She keep [sic] pulling me.

What did she say if any to you?

Nothing, she did not say anything.

By the way, Janice, what was the physical lighting condition at that time?

It was darked, [sic] the room was darked [sic].

For how long if you can estimate, the accused was on top of Jinajing?

Quite a long time.

For the length of time, what did Jingjing Jugadura do?

A
She keeps [sic] as I said, pulling on me, because she wanted me to face her
to help her.
Q

Were you able to exert any help to Jingjing?

No, because I was afraid of him. 51

On cross-examination, Janice candidly admitted that she was awakened by the


movements of the accused and Jonejeel and because Jonejeel pulled her; and,
confirming her statement in her affidavit, declared that during the intercourse both
the accused and Jonejeel were naked and moaning, thus:
Q
When did you first observe that the accused abused your friend whom you
said was just lying beside you?
A

Because they were moving, they keep [sic] on moving.

And when you woke up on that night, you saw the accused totally nude?

Yes, sir.

Q
And also on that night, when you woke up, you also say, that your friend
Jonejeel was also naked, was it not?
A

No.

Why, what was she wearing at that time?


15

She was wearing [a] T-shirt and a skirt.

Q
I will refer to you the affidavit marked Exh. "4" here in par. 6, you said that
you were shock[ed] to see when I woke up in the middle of the night, Dodong
Antido totally nude on top of Jingjing who was also without clothes doing sexual
intercourse, do you recall having sign[ed] that affidavit marked Exh. "4".
FISCAL EVANGELIO:
We object, the question is misleading. The reference made by counsel is misplaced
because the question has no basis as to the reference of the affidavit.
ATTY. DUBLIN:
My question is did she recall having executed this affidavit marked Exh. "4" which
she confirmed earlier this morning, as she did execute, I was only confronting her
on that particular.
FISCAL EVANGELIO:
The first question when you woke is it not that the accused is naked what was the
appearance of Jonejeel, according to the witness she was wearing something.
COURT:
The appearance of the witness Jonejeel she was wearing the T-shirt and skirt. That
is why she was being confronted of [sic] her affidavit. In her affidavit she stated
here both are naked.
FISCAL EVANGELIO:
But the affidavit states during the intercourse. He should lay the ba[s]is, that would
be misleading during the intercourse at the time when she woke up in the morning.
COURT:
You have to be definite, was it during the intercourse.
ATTY. DUBLIN:
I will reform the question.
Q
In [sic] that nighttime, when you went to sleep on February 8, 1994, you
were awaken[ed] in the middle of the night?
A

Yes, sir.
16

What was that?

The movement and I was pulled by Jingjing.

You were pulled by Jingjing?

Yes, sir.

Did Jingjing make any sound?

None.

And what did you see?

I saw Dodong Antido pulled Jingjing's [sic] to make her face him.

And both of them were lying down?

Yes, sir.

In the same bed where you were also lying?

Yes, sir.

And that point in time [sic], you see Dodong Antido already naked?

Yes, sir.

And your friend also completely naked?

A
First, at the time I first saw them, Jingjing had yet her dress on, but at the
time the accused Dodong Antido had intercourse, he already took off Jingjing's
dress.
Q

What did the accused took [sic] off from Jingjing?

The skirt and the panty.

You did not see the accused taking off his pants, did you?

Yes, I saw.

With the light out?

Yes, sir.

Q
Was Jingjing saying anything, when the accused was on top of her totally
naked?
17

None, but this Jingjing keep [sic] on pulling me.

Did you not hear both of them making a moaning sound?

I heard a sound from Dodong Antido, as if they were chewing.

You did not hear both of them moaning?

A.

No, sir.

Q
Do you recall having stated in your affidavit that in fact you hear them
moaning paragraph 7?
A

Yes, sir.

ATTY. DUBLIN:
We pray that this affidavit marked as Exh. "4"; paragraph 7 thereof be bracketed
and marked as Exh. "4-B".
COURT:
Mark it.
ATTY. DUBLIN:
Q

How long was the accused on top of your friend Jingjing?

Quite a time up to the time I sleep [sic]. 52

Paragraph 7 of Janice's affidavit 53 reads as follows:


That they were so close to me that I can hear their moaning and the reaction of
GINGGING who I understand tried to get out of the hold of DODONG ANTIDO but is
powerless as the man was so big. (Emphasis supplied).
The preceding paragraph in the affidavit reads:
That it was in the month of February 1994, one evening, when GINGGING and
myself were sleeping at the room of DODONG ANTIDO, I was shocked to see when I
woke up in the middle of the night, DODONG; ANTIDO totally nude on top of
GINGGING who was also without clothes, doing sexual intercourse.
If indeed accused had a knife and used it to threaten Jonejeel and Janice, Janice
could not have missed seeing the knife or hearing the threats and, accordingly,
testified thereon.

18

As earlier observed, Jonejeel's version of the intimidation employed or threat


uttered during the 8 February 1994 incident fails to persuade, in light of the
testimony of Janice and Jonejeel's admission on cross-examination that accused
also had carnal knowledge of her on 14 February 1994, thus:
Q
On February 14, is it not that the same thing happened, the 3 of you went
into the room of the accused at nighttime, you [and] Janice and the accused?
A

Yes, sir.

And the same thing happened that you slept on the same bed the 3 of you?

Yes, sir.

Q
After you said the accused abused you on February 14, you continued
sleeping on the bed of the accused the 3 of you?
A

He will force us to sleep there.

Q
Precisely after you said he abused you after he finished abusing you you
continued sleeping there, you did not leave the room?
A

He required us to sleep again in the room.

Until you woke up the next morning, is it not?

Yes, sir.

Q
And when you woke up the next morning February 15, you continued your
usual chores, washing the clothes, cleaning the room, cooking, is it not?
A

Yes, sir. 54

Therefore, we are not convinced that the coupling between accused and
complainant on 18 March 1994 was without Jonejeel's consent. Moreover, the
relationship of the accused and Jonejeel and the latter's conduct after the 8
February and 18 March incidents raise serious doubts as to the commission of rape
through intimidation.
It was established that while the accused took care of the daily subsistence needs
of Jonejeel and Janice, Jonejeel acted as the accused's househelp, doing the
cooking and laundry. On cross-examination she testified as follows:
Q

Who took care of your daily subsistence?

Dodong Antido.
19

Since when did Dodong Antido started (sic) doing that?

I cannot tell when was that.

Q
In fact you were also utilized by Dodong Antido to act as his housemaid, is it
not?
A

Yes, sir.

You do (sic) the washing of his clothes and going to market, is it not?

Only the washing of clothes and cooking.

Who does the marketing?

Dodong Antido. 55

This then jibes with accused's testimony on direct examination that he was the one
who "provided food" for Jonejeel and Janice, and in return, he asked them "to cook
for [him] and do the cooking, and sometimes [the] cleaning [of] the sala and . . .
the washing of [his] clothes." 56
Then from 8 February 1994 until Janice left the house of the accused, Jonejeel slept
in the room of the accused with the latter and Janice, thus:
ATTY. DUBLIN [on cross-examination]:
xxx

xxx

xxx

Q
Is it not a fact that you and Janice Betonio were sleeping [sic] in the room of
the accused from February 8, 1994 up to the time Janice Betonio left that
residence?
A
We did not want to sleep there but it was Dodong Antido who ordered us to
sleep there.
xxx

xxx

xxx

Q
You were required by the accused to sleep in that room because Lita refused
you or did not allow you to sleep in her room, is it not?
A

Yes, sir.

Q
So that on February 9, you were still sleeping at the room of the accused, is it
not?
A

Yes, sir.
20

And also on the next succeeding days, February 10, 11, etc., is it not?

Yes, sir. 57

Even after the 18 March 1994 incident, Jonejeel stayed in the accused's room, and
the following day, routinely performed her chores in the house of the accused. On
direct examination, she admitted:
PROSECUTOR:
Q

After this incident where did you go, if any?

I stayed in the room, sir.

xxx

xxx

xxx

PROSECUTOR:
Q

After March 18, where were you?

I was still there in the place.

What were you doing in that place after you were abused by Antido?

I did the washing of his clothes and do the cooking for Dodong Antido. 58

If indeed Jonejeel were raped, she would not have stayed in accused's house after
8 February 1994. The prosecution proffered no credible evidence that accused
prevented Jonejeel from leaving or detained her in his house against her will.
Plainly, the threats attributed by Jonejeel to accused were not of such magnitude
as to have prevented her from escaping from her alleged bondage.
The Court shall now take up the last assigned error which, although rendered
academic by the discussions on the first and second assigned errors, must be
addressed in view of its significance. We agree with the accused and the Office of
the Solicitor General that the trial court erred in likewise convicting the accused for
the rape allegedly committed on 8 February 1994. Since the information
specifically charges the accused with only one act of rape committed on a specific
date, then consistent with the constitutional right of the accused to be informed of
the nature and cause of accusation against him, 59 he can not be held liable for
other acts of rape. There can only be one conviction for rape if the information
charges only one offense, even if the evidence shows that more than one was in
fact committed. 60 The right of a person to be informed of the nature and cause of
accusation against him cannot be waived for reasons of public policy. 61
Complainant's tale on the alleged rape not charged in the information may be
taken only as proof of specific intent or knowledge, plan, system or scheme. 62
21

The foregoing notwithstanding, considering the prosecution's evidence, accused


could have been prosecuted for qualified seduction under Article 337 of the
Revised Penal Code. He cannot in this case be held liable therefor since the
information in this case contains no allegations constitutive of qualified seduction.
63 It may be pointed out that if the complaint for rape contains allegations for
qualified seduction, the accused can be convicted of the latter if the prosecution
fails to prove the use of force by the accused. 64
WHEREFORE, on ground of reasonable doubt, the instant appeal is GRANTED, and
the challenged decision of Branch 17 of the Regional Trial Court (RTC) of Davao
City, in Criminal Case No. 33585-94, is hereby REVERSED. Accused ROGELIO C.
ANTIDO is hereby ACQUITTED and ordered released from detention, unless his
further confinement is warranted for some other lawful cause or ground, without
prejudice to his prosecution for qualified seduction.
Costs de oficio.
SO ORDERED.
Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.
G. R. No. 128823-24

December 27, 2002

PEOPLE OF THE PHILIPPINES, accused-appellee,


vs.
PEDRO FLORES, JR., y FLORES ALIAS "PESIONG", accused-appellant.
DECISION
CARPIO-MORALES, J.:
An assault on sexual innocence can open a floodgate of emotions. This Court,
however, cannot allow emotions to drown an accuseds right to be informed of the
nature and cause of the accusation against him.
For automatic review before this Court is the Joint Decision of the Regional Trial
Court, Branch 46, Urdaneta, Pangasinan finding accused-appellant Pedro Flores Jr. y
Flores alias "Pesiong" guilty of two counts of rape of his then 11 year old daughter
and sentencing him to suffer the penalty of death in each.
The complaints against accused-appellant filed on February 3, 1997 read as
follows:
Criminal Case No. U-9184:
CRIMINAL COMPLAINT1
22

The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade three pupil and a
resident of Sitio Buenlag, Brgy Nancamaliran West, Urdaneta, Pangasinan, under
oath, hereby accuses PEDRO FLORES, JR., Y FLORES for the crime of "RAPE",
committed as follows:
That on the 9th day of December 1996, in the morning at Sitio Buenlag, Brgy.
Nancamaliran West, Municipality of Urdaneta, Province of Pangasinan, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, by
means of force and intimidation, did then and there, willfully, unlawfully, criminally
and feloniously sexually abuse the herein complaining witness FILIPINA FLORES Y
LAZO, 11 years old, all against her will.
x x x (Emphasis supplied).
Criminal Case No. U-9185:
CRIMINAL COMPLAINT2
The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade three pupil and a
resident of Sitio Buenlag, Brgy. Nancamaliran West, Urdaneta, Pangasinan, under
oath, hereby accuses PEDRO FLORES, JR., Y FLORES, ALIAS "PESYONG", committed
as follows:
That on the 28th day of December 1996, in the evening at Sitio Buenlag, Brgy
Nancamaliran West, Municipality of Urdaneta, Province of Pangasinan, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, with
deliberate intent and by means of force and intimidation, did then and there,
willfully, unlawfully, criminally and feloniously sexually abuse the herein
complaining witness FILIPINA FLORES, an 11 years old and daughter of the herein
accused with the use of sharp pointed bladed weapon and all against her will.
x x x (Emphasis supplied).
Arraigned on February 10, 1997, accused-appellant pleaded not guilty to both
charges.3
Culled from the records of the case are the following facts established by the
prosecution:
On December 5, 1996, private complainant Filipina L. Flores (Filipina), 11 years old
at the time, and her younger sister Catherine were left to the care of their father,
herein accused-appellant, at their family residence in Sitio Buenlag, Barangay
Nancamaliran West, Urdaneta, Pangasinan, their mother Marcelina L. Flores having
departed for Singapore to work as an overseas contract worker.
23

After partaking of supper on the night of December 9, 1996,4 accused-appellant


asked Filipina to accompany him to the comfort room situated outside their
house,5 claiming that he was afraid of ghosts.6 Albeit Filipina did not believe7 him,
she acquiesced because her mother had told her to always obey her father.8
When accused-appellant came out of the comfort room, he ordered Filipina to
remove her short pants, threatening her with death if she disobeyed,9 and made
her lie down.10 He then removed his short pants and brief and, against her will, he
inserted his finger and later his penis into Filipinas vagina11 where she later felt
hot fluid.12
Accused-appellant thereafter wiped Filipinas vagina and his hand, threatened to
kill her if she reported what he did, directed her to put on her shorts, and they both
went home. The following morning, Filipina reported the incident to her "Inang
Lorie" whose full name is Norielyn Antonio, the aunt of her mother, who told her
that if her father would sexually assault her again, he would have him detained.
Nineteen nights later or on December 28, 1996, as Filipina lay asleep in their
house, she was awakened when accused-appellant touched her right foot.13
Armed with a knife14, accused-appellant told her not to talk15 and ordered her to
remove her short pants and panty. She complied. Accused-appellant thereupon
removed his short pants and brief and went on top of her chest during which she
tried to push him away but failed.
Accused-appellant then inserted his finger into Filipinas vagina for some time,16
wiped his hands, and then inserted his penis for a long time as he was sucking her
breast. Filipina felt accused-appellants semen drop into her private organ where
she noticed the presence of blood and a bit of whitish substance.
Accused-appellant later wiped her vagina with a towel. The following morning,
private complainant again reported the matter to her grandaunt Norielyn,17 and to
her playmate Carla Salvador.18
On January 31, 1997, Filipina, accompanied by Norielyn, a relative, and a tricycle
driver-neighbor, reported the matter to the Philippine National Police of Urdaneta
where she gave a statement. On the same day, she, still accompanied by Norielyn,
submitted herself to a medical examination at the Don Amadeo J. Perez, Jr.
Memorial General Hospital the results of which are contained in a medical
certificate19 showing the following:
(-) Negative menarche
- Multiple deep healed lacerations all over the labia majora.
- Admits examining finger with ease.
24

- (+) sticky whitish discharge.


Dr. Jeanna B. Nebril, the examining physician, found the presence of "deep-healed
lacerations all over the labia majora"20 which deep-healed lacerations connote,
according to the doctor, the application of force, possibly two weeks before the
examination.
Denying the accusations, accused-appellant claimed as follows:
Filipina, whom he whipped in the afternoon of December 9, 1996 for not attending
school on the 6th, 7th and 8th of December that year and for having received
money from her classmate,21 was not in their house on the night of December 9,
1996 because she was in the house of Norielyn. Neither was she in their house on
the night of December 28, 1996 as she was at the house of his mother Margarita
Flores22 in Cafloresan.
Accused-appellants testimony was corroborated by his mother Margarita, and his
teenaged children Benito and Baby Jean Flores who were staying in his mothers
house. It was also corroborated by another teenaged child, Jocelyn Flores, who was
staying in the house of accused-appellants mother-in-law, Lourdes Lazo, also in
Barangay Nancamaliran West.23 Jocelyn added that Filipina had intimated to her
that she fabricated the rape charges because their maternal grandmother Lourdes
wanted their father, accused-appellant, jailed as he begrudged him for having
eloped with their mother,24 and that Lourdes threatened her with abandonment or
detention in jail in case she defied, and promised to give her jewelry, shoes and
dress if she agreed to carry out her desire.
After trial, the court a quo found accused-appellant guilty of Statutory Rape and
sentenced her to death in both cases in its April 7, 1997 Joint Decision, the
dispositive portion of which reads:
WHEREFORE, JUDGMENT is rendered CONVICTING PEDRO FLORES, JR. Y FLORES
ALIAS PESIONG beyond reasonable doubt of the crime of Statutory Rape, an
offense defined and penalized under paragraph 3, Article 335, of the Revised Penal
Code in relation to Section 1, Republic Act 7659 aggravated by relationship, the
Court sentences, PEDRO FLORES, JR. Y FLORES ALIAS PESIONG as follows:
CRIMINAL CASE NO. U-9184 to suffer the penalty of DEATH; ordering Pedro Flores,
Jr. y Flores alias Pesiong to pay Filipina the sum of P50,000.00 as moral damages,
P20,000.00 as exemplary damages, plus all the necessary penalties and costs.
CRIMINAL CASE NO. U-9185 to suffer the penalty of DEATH; ordering Pedro Flores,
Jr. y Flores alias Pesiong to pay Filipina the sum of P50,000.00 as moral damages,
P20,000.00 as exemplary damages, plus all the necessary penalties and costs.
25

Pedro Flores, Jr. y Flores alias Pesiong shall be committed immediately to the
National Bilibid Prisons. The Branch Clerk of Court is hereby ordered to transmit the
entire records of this case to the Honorable Supreme Court of the Philippines for
automatic review of this Decision.
In view of the penalty of death imposed by the court a quo, the case is now before
this Court on automatic review. Accused-appellant assigns as errors the following:
I. THAT THE FILING OF THE CASE [AT BAR] WAS MOTIVATED BY SOME FACTORS
OTHER THAN THE TRUTH AS TO ITS COMMISSION, AND SO THE ACCUSED SHOULD
BE ACQUITTED.
II. THAT THE COURT [A QUO] ERRED IN NOT APPRECIATING THE DEFENSE OF THE
ACCUSED-APPELLANT THAT THE COMPLAINANT WAS NOT AT THE SCENE OF THE
CRIME WHEN THE ALLEGED INCIDENTS TOOK PLACE, A DEFENSE SUFFICIENT TO
OVERCOME AND DESTROY THE TESTIMONY OF THE COMPLAINANT THAT WOULD
HAVE WARRANTED THE ACQUITTAL OF THE ACCUSED-APELLANT.
It is settled that in a criminal case, an appeal throws the whole case open for
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 assignment of errors or not.25
It is at once apparent, from a reading of the above-quoted complaints, that
accused-appellant was denied the constitutional right to be informed of the nature
and cause of the accusation against him. This right has the following objectives: 26
1. To furnish the accused with such a description of the charge against him as will
enable him to make the defense;
2. To avail himself of his conviction or acquittal for protection against further
prosecution for the same cause;
3. To inform the court of the facts alleged, so that it may decide whether they are
sufficient in law to support a conviction if one should be had.
The right cannot be waived for reasons of public policy.27 Hence, it is imperative
that the complaint or information filed against the accused be complete to meet its
objectives. As such, an indictment must fully state the elements of the specific
offense alleged to have been committed.28 For an accused cannot be convicted of
an offense, even if duly proven, unless it is alleged or necessarily included in the
complaint or information.29
The court a quo found accused-appellant guilty of Statutory Rape under Article
33530 of the Revised Penal Code, as amended by R. A. No. 7659 (which restored
26

the death penalty for heinous crimes effective December 31, 1993) which
provides:
Article 335. When and how rape is committed.--- Rape is committed by having
carnal knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.
The gravamen of the crime of rape is carnal knowledge or sexual intercourse
between a man and a woman under the circumstances enumerated in the penal
code.31 Thus, to sustain a conviction, the complaint or information must allege
that the accused had carnal knowledge of or sexual intercourse with the private
complainant. In the criminal complaints at bar, however, no such allegation was
made.
The allegation that accused-appellant did "sexually abuse" Filipina does not suffice.
In the recent case of People v. Lito Egan alias Akiao32, this Court ruled that
"although the prosecution has proved that [the therein private complainant] Lenie
was sexually abused, the evidence proffered is inadequate to establish carnal
knowledge."33 Hence, sexual abuse cannot be equated with carnal knowledge or
sexual intercourse.34 The allegation in the instant criminal complaints that
accused-appellant "sexually abuse[d]" the private complainant cannot thus be read
to mean that accused-appellant had carnal knowledge or sexual intercourse with
the private complainant.
This Court is not unaware of the rule in case there is a variance between allegation
and proof as etched in Section 4 of Rule 120 of the Revised Rules of Criminal
Procedure which reads:
SEC. 4. Judgment in case of variance between allegation and proof.When there is
variance between the offense charged in the complaint or information and that
proved, and the offense as charged is included in or necessarily includes the
offense proved, the accused shall be convicted of the offense proved which is
included in the offense charged, or of the offense charged which is included in the
offense proved.35
The case at bar, however, is not one of variance between allegation and proof. The
recital of facts in the criminal complaints simply does not properly charge rape,
"sexual abuse" not being an essential element or ingredient thereof.

27

Neither can accused-appellant be convicted of acts of lasciviousness or of any


offense for that matter under our penal laws. It is settled that what characterizes
the charge is the actual recital of facts 36 in the complaint or information. For
every crime is made up of certain acts and intent which must be set forth in the
complaint or information with reasonable particularity of time, place, names
(plaintiff and defendant), and circumstances. In other words, the complaint must
contain a specific allegation of every fact and circumstance necessary to constitute
the crime charged37, the accused being presumed to have no independent
knowledge of the facts that constitute the offense.38
And even under the provisions of Republic Act No. 7610 (The Special Protection of
Children Against Child Abuse, Exploitation and Discrimination Act),39 accusedappellant cannot be held liable. Section 5 of said Act provides:
SEC. 5. Child Prostitution and Other Sexual Abuse. -- Children, whether male or
female, who for money, profit, or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in sexual intercourse or
lascivious conduct, are deemed to be children exploited in prostitution and other
sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall
be imposed upon the following:
(a) Those who engage in or promote, facilitate or induce child prostitution which
include, but are not limited to, the following:
(1) Acting as a procurer of a child prostitute;
(2) Inducing a person to be a client of a child prostitute by means of written or oral
advertisements or other similar means;
(3) Taking advantage of influence or relationship to procure a child as a prostitute;
(4) Threatening or using violence towards a child to engage him as a prostitute; or
(5) Giving monetary consideration, goods or other pecuniary benefit to a child with
the intent to engage such child in prostitution.
(b) Those who commit the act of sexual intercourse or lascivious conduct with a
child exploited in prostitution or subjected to other sexual abuse: Provided, That
when the victim is under twelve (12) years of age, the perpetrators shall be
prosecuted under Article 335, paragraph 3, for rape and Article 336 of the Revised
Penal Code, as amended by Act No. 3815, for rape or lascivious conduct when the
victim is under twelve (12) years of age shall be reclusion temporal in its medium
period; and
28

(c) Those who derive profit or advantage therefrom, whether as manager or owner
of the establishment where the prostitution takes place or of the sauna, disco, bar,
resort, place of entertainment or establishment serving as a cover or which
engages in prostitution in addition to the activity for which the license has been
issued to said establishment. (Emphasis and underscoring supplied).
Section 2 (g) of the Rules and Regulations on the Reporting and Investigation of
Child Abuse Cases40, issued pursuant to Section 32 of Republic Act No. 7610,
defines "sexual abuse" by inclusion as follows:
Sexual abuse includes 1) the employment, use, persuasion, enticement, or
coercion of a child to engage in, or assist another person to engage in sexual
intercourse or lascivious conduct or 2) the molestation, 3) prostitution, or 4) incest
with children. (Underscoring supplied)
From this broad, non-exclusive definition, this Court finds that the phrase "sexually
abuse" in the criminal complaints at bar does not comply with the requirement that
the complaint must contain a specific averment of every fact necessary to
constitute the crime. Notably, the phrase "sexual abuse" is not used under R.A. No.
7610 as an elemental fact but as an altogether separate offense. Above-quoted
Section 5 thereof enumerates the punishable acts that must be alleged in the
complaint or information to hold an accused liable, none of which is reflected in the
complaints at bar charging accused-appellant.
The case of People v. Cruz 41 is instructive. There the information in Criminal Case
No. 15368-R read:
That on or about the 2nd day of August, 1997, in the City of Baguio, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, did
then and there willfully, unlawfully and feloniously commit sexual abuse on his
daughter either by raping her or committing acts of lasciviousness on her, which
has debased, degraded and demeaned the intrinsic worth and dignity of his
daughter, JEANNIE ANN DELA CRUZ as a human being.
CONTRARY TO LAW. (Emphasis supplied)
Finding the above-quoted information void, this Court held:
The Court also finds that accused-appellant cannot be convicted of rape or acts of
lasciviousness under the information in Criminal Case No. 15368-R, which charges
accused-appellant of a violation of R.A. No. 7610 (The Special Protection of
Children Against Child Abuse, Exploitation and Discrimination Act), "either by
raping her or committing acts of lasciviousness."

29

It is readily apparent that the facts charged in said information do not constitute an
offense. The information does not cite which among the numerous sections or
subsections of R.A. No. 7610 has been violated by accused-appellant. Moreover, it
does not state the acts and omissions constituting the offense, or any special or
aggravating circumstances attending the same, as required under the rules of
criminal procedure. Section 8, Rule 110 thereof provides:
Designation of the offense.The complaint or information shall state the
designation of the offense given by the statue, aver the acts or omissions
constituting the offense, and specify its qualifying and aggravating circumstances.
If there is no designation of the offense, reference shall be made to the section or
subsection of the statute punishing it.
The allegation in the information that accused-appellant "willfully, unlawfully and
feloniously commit sexual abuse on his daughter [Jeannie Ann] either by raping her
or committing acts of lasciviousness on her" is not a sufficient averment of the acts
constituting the offense as required under Section 8, for these are conclusions of
law, not facts. The information in Criminal Case No. 15368-R is therefore void for
being violative of the accused-appellants constitutionally-guaranteed right to be
informed of the nature and cause of the accusation against him. (Emphasis &
underscoring supplied)
As held by this Court in the above-case of Cruz, the allegation in the information
that the therein accused-appellant sexually abused the therein private complainant
by either raping or committing acts of lasciviousness on her "is not a sufficient
averment of the acts constituting the offense as required under Section 8 [of Rule
110], for these are conclusions of law, not facts." Nothing less can be said of the
criminal complaints in the cases at bar. They are void for being violative of the
accused-appellants constitutional right to be informed of the nature and cause of
the accusation against him.
This Court thus takes this occasion to remind public prosecutors of their crucial role
in crafting criminal complaints and information. For all efforts may be rendered
futile and justice may be denied by a failure to state "the acts or omissions
complained of as constituting the offense" as exemplified by the present case.
The foregoing disquisition leaves it unnecessary to dwell on accused-appellants
assigned errors or of other errors including failure to allege relationship in the first
complaint, and lack of proof of minority in both cases.
WHEREFORE, the informations in Criminal Case Nos. U-9184 and U-9185 are
hereby declared null and void for being violative of the constitutional right of
accused-appellant Pedro Flores, Jr. y Flores alias "Pesiong," for Rape to be informed

30

of the nature and cause of the accusation against him. Hence, the cases against
him are hereby DISMISSED.
The Director of Prisons is hereby directed to forthwith cause the release of
accused-appellant unless the latter is being lawfully held for another cause and to
inform the Court accordingly within 10 days from notice.
Costs de oficio.
SO ORDERED.

G.R. No. 168486

June 27, 2006

NOE S. ANDAYA, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
YNARES-SANTIAGO, J.:
This is a petition for review on certiorari from the September 29, 2004 Decision1 of
the Court of Appeals in CA-G.R. CR No. 26556, affirming the January 29, 2002
Decision2 of the Regional Trial Court, Branch 104 of Quezon City in Criminal Case
No. 92-36145, convicting petitioner Noe S. Andaya of falsification of private
document, and the April 26, 2005 Resolution3 denying the motion for
reconsideration.
Complainant Armed Forces and Police Savings and Loan Association, Inc. (AFPSLAI)
is a non-stock and non-profit association authorized to engage in savings and loan
transactions. In 1986, petitioner Noe S. Andaya was elected as president and
general manager of AFPSLAI. During his term, he sought to increase the
capitalization of AFPSLAI to boost its lending capacity to its members.
Consequently, on June 1, 1988, the Board of Trustees of AFPSLAI passed and
approved Resolution No. RS-88-006-048 setting up a Finders Fee Program whereby
any officer, member or employee, except investment counselors, of AFPSLAI who
could solicit an investment of not less than P100,000.00 would be entitled to a
finders fee equivalent to one percent of the amount solicited.
31

In a letter4 dated September 1991, the Central Bank wrote Gen. Lisandro C.
Abadia, then Chairman of the Board of Trustees, regarding the precarious financial
position of AFPSLAI due to its alleged flawed management. As a result, Gen. Abadia
requested the National Bureau of Investigation (NBI) to conduct an investigation on
alleged irregularities in the operations of AFPSLAI which led to the filing of several
criminal cases against petitioner, one of which is the instant case based on the
alleged fraudulent implementation of the Finders Fee Program.
On October 5, 1992, an information for estafa through falsification of commercial
document was filed against petitioner, to wit:
The undersigned accuses NOE S. ANDAYA of the crime of Estafa thru Falsification of
Commercial Document, committed as follows:
That on or about the 8th day of April, 1991 in Quezon City, Philippines, the abovenamed accused, with intent to gain, by means of deceit, false pretenses and
falsification of commercial document, did then and there, wilfully, unlawfully and
feloniously defraud the ARMED FORCES AND POLICE SAVINGS AND LOAN
ASSOCIATION, INC., represented by its Chairman of the Board of Director[s], Gen.
Lisandro C. Abadia, AFP, in the following manner, to wit: on the date and in the
place aforementioned the said accused being then the President and General
Manager of the Armed Forces and Police Savings and Loan Association, Inc., caused
and approved the disbursement of the sum of P21,000.00, Philippine Currency,
from the funds of the association, by then and there making it appear in
Disbursement Voucher No. 58380 that said amount represented the 1% finders fee
of one DIOSDADO J. GUILLAS [Guilas]; when in truth and in fact accused knew fully
well that there was no such payment to be made by the association as finders fee;
that by virtue of said falsification, said accused was able to encashed (sic) and
received (sic) MBTC Check No. 583768 in the sum of P21,000.00, which amount
once in his possession, misapplied, misappropriated and converted to his own
personal use and benefit, to the damage and prejudice of the said offended party
in the aforesaid sum of P21,000.00, Philippine Currency.
CONTRARY TO LAW.5 (Emphasis supplied)
The case was raffled to Branch 104 of the Regional Trial Court of Quezon City and
docketed as Criminal Case No. 92-36145. On May 30, 1994, petitioner was
arraigned6 and pleaded not guilty to the charge, after which trial on the merits
ensued.
The prosecution presented two witnesses, namely, Diosdado Guilas and Judy
Balangue.

32

Guilas, a general clerk of AFPSLAIs Time Deposit Section, testified that on April 8,
1991, he was informed by Tini Gabriel and Julie Alabansa of the Treasury
Department that there was a finders fee in the amount of P21,000.00 in his name.
Subsequently, Judy Balangue, an investment clerk of the Time Deposit Section, told
him that the finders fee was for petitioner. When Guilas went to petitioners office
to inform him about the finders fee in his (Guilas) name, petitioner instructed him
to collect the P21,000.00 and turn over the same to the latter. Guilas returned to
the Treasury Department and signed Disbursement Voucher No. 583807 afterwhich
he was issued Metrobank Check No. 6837688 for P21,000.00. After encashing the
check, he turned over the proceeds to petitioner. On cross-examination, Guilas
admitted that there was no prohibition in placing the finders fee under the name
of a person who did not actually solicit the investment.
Balangue also testified that on April 3, 1991, petitioner instructed him to prepare
Certificate of Capital Contribution Monthly No. 521789 in the name of Rosario
Mercader for an investment in AFPSLAI in the amount of P2,100,000.00 and to
inform Guilas that the finders fee for the aforesaid investment will be placed in the
latters name. On cross-examination, Balangue confirmed that a P2,100,000.00
worth of investment from Rosario Mercader was deposited in AFPSLAI. He further
acknowledged that the Finders Fee Program did not prohibit the placing of another
persons name as payee of the finders fee.
The defense presented three witnesses, namely, Emerita Arevalo, Ernesto
Hernandez and petitioner.
Arevalo, secretary of petitioner in AFPSLAI, explained that the finders fee was for
the P2,100,000.00 investment solicited by Ernesto Hernandez from Rosario
Mercader. The finders fee was placed in the name of Guilas upon request of
Hernandez so that the same would not be reflected in his (Hernandezs) income
tax return. She alleged that Guilas consented to the arrangement of placing the
finders fee in his (Guilas) name. She also claimed that there was no prohibition in
the Finders Fee Program regarding the substitution of the name of the solicitor as
long as there was no double claim for the finders fee over the same investment.
Hernandez, an associate member of AFPSLAI and vice president of Philippine
Educational Trust Plan, Inc. (PETP Plans), testified that sometime in 1991, he was
able to solicit from Rosario Mercader an investment of P2,100,000.00 in AFPSLAI.
He also asked petitioner to place the finders fee in the name of one of his
employees so that he (Hernandez) would not have to report a higher tax base in
his income tax return. On April 8, 1991, petitioner handed to him the finders fee in
the amount of P21,000.00.
Petitioner denied all the charges against him. He claimed that the P21,000.00
finders fee was in fact payable by AFPSLAI because of the P2,100,000.00
33

investment of Rosario Mercader solicited by Ernesto Hernandez. He denied


misappropriating the P21,000.00 finders fee for his personal benefit as the same
was turned over to Ernesto Hernandez who was the true solicitor of the
aforementioned investment. Since the finders fee was in fact owed by AFPSLAI,
then no damage was done to the association. The finders fee was placed in the
name of Guilas as requested by Hernandez in order to reduce the tax obligation of
the latter. According to petitioner, Guilas consented to the whole setup.
Petitioner also claimed that Hernandez was an associate member of AFPSLAI
because his application for membership was approved by the membership
committee and the Board of Trustees and was in fact issued an I.D. There was no
prohibition under the rules and regulation of the Finders Fee Program regarding
the substitution of the name of the solicitor with the name of another person. On
cross-examination, petitioner claimed that he merely approved the substitution of
the name of Hernandez with that of Guilas in the disbursement voucher upon the
request of Hernandez. He brushed aside the imputation of condoning tax evasion
by claiming that the issue in the instant proceedings was whether he defrauded
AFPSLAI and not his alleged complicity in tax evasion.
After the defense rested its case, the prosecution presented two rebuttal
witnesses, namely, Ma. Victoria Maigue and Ma. Fe Moreno.
Maigue, membership affairs office supervisor of AFPSLAI, testified that Hernandez
was ineligible to become a member of AFPSLAI under sections 1 and 2 of Article II
of the associations by-laws. However, she admitted that the application of
Hernandez as member was approved by the membership committee.
Moreno, legal officer of AFPSLAI at the time of her testimony on January 25, 2000,
stated that there are eight criminal cases pending against the petitioner in various
branches of the Regional Trial Court of Quezon City. In one case decided by Judge
Bacalla of Branch 216, petitioner was convicted of estafa through falsification
involving similar facts as the instant case. She further stated that Hernandez was
not a member of AFPSLAI under sections 1 and 2 of Article II of the by-laws. On
cross-examination, she admitted that the case decided by Judge Bacalla convicting
petitioner was on appeal with the Court of Appeals.
The defense dispensed with the presentation of Mercader in view of the stipulation
of the prosecution on the fact that Mercader was a depositor of AFPSLAI and that
she was convinced to invest in the association by Ernesto Hernandez.10
On June 20, 2001, the trial court rendered a Decision11 convicting petitioner of
falsification of private document. On July 5, 2001, petitioner filed a motion for new
trial.12 In an Order13 dated December 20, 2001, the trial court ruled that the
evidence submitted by petitioner in support of his motion was inadequate to
34

conduct a new trial, however, in the interest of substantial justice, the case should
still be reopened pursuant to Section 24,14 Rule 119 of the Rules of Court in order
to avoid a miscarriage of justice.
Petitioner proceeded to submit documentary evidence consisting of the financial
statements of AFPSLAI from 1996 to 1999 to show that AFPSLAI did not suffer any
damage from the payment of the P21,000.00 finders fee. He likewise offered the
testimony of Paterno Madet, senior vice president of AFPSLAI, who testified that he
was personally aware that Rosario Mercader invested P2,100,000.00 in AFPSLAI;
that Hernandez was a member of AFPSLAI and was the one who convinced
Mercader to invest; that the finders fee was placed in the name of Guilas; that
petitioner called him to grant the request of Hernandez for the finders fee to be
placed in the name of one of the employees of AFPSLAI; that there was no policy
which prohibits the placing of the name of the solicitor of the investment in the
name of another person; that the substitution of the name of Hernandez with that
of Guilas was approved by petitioner but he (Madet) was the one who approved the
release of the disbursement voucher.
On January 29, 2002, the trial court rendered the assailed Decision convicting
petitioner of falsification of private document based on the following findings of
fact: Hernandez solicited from Rosario Mercader an investment of P2,100,000.00
for AFPSLAI; Hernandez requested petitioner to place the finders fee in the name
of another person; petitioner caused it to appear in the disbursement voucher that
Guilas solicited the aforesaid investment; the voucher served as the basis for the
issuance of the check for P21,000.00 representing the finders fee for the
investment of Mercader; and Guilas encashed the check and turned over the
money to petitioner who in turn gave it to Hernandez.
The trial court ruled that all the elements of falsification of private document were
present. First, petitioner caused it to appear in the disbursement voucher, a private
document, that Guilas, instead of Hernandez, was entitled to a P21,000.00 finders
fee. Second, the falsification of the voucher was done with criminal intent to cause
damage to the government because it was meant to lower the tax base of
Hernandez and, thus, evade payment of taxes on the finders fee.
Petitioner moved for reconsideration but was denied by the trial court in an
Order15 dated May 13, 2002. On appeal, the Court of Appeals affirmed in toto the
decision of the trial court and denied petitioners motion for reconsideration;
hence, the instant petition challenging the validity of his conviction for the crime of
falsification of private document.
Preliminarily, petitioner contends that the Court of Appeals contradicted the ruling
of the trial court. He claims that the Court of Appeals stated in certain portions of
its decision that petitioner was guilty of estafa through falsification of commercial
35

document whereas in the trial courts decision petitioner was convicted of


falsification of private document.
A close reading of the Court of Appeals decision shows that the alleged points of
contradiction were the result of inadvertence in the drafting of the same. Read in
its entirety, the decision of the Court of Appeals affirmed in toto the decision of the
trial court and, necessarily, it affirmed the conviction of petitioner for the crime of
falsification of private document and not of estafa through falsification of
commercial document.
In the main, petitioner implores this Court to review the pleadings he filed before
the lower courts as well as the evidence on record on the belief that a review of the
same will prove his innocence. However, he failed to specify what aspects of the
factual and legal bases of his conviction should be reversed.
Time honored is the principle that an appeal in a criminal case opens the whole
action for review on any question including those not raised by the parties.16 After
a careful and thorough review of the records, we are convinced that petitioner
should be acquitted based on reasonable doubt.
The elements of falsification of private document under Article 172, paragraph 217
in relation to Article 17118 of the Revised Penal Code are: (1) the offender
committed any of the acts of falsification under Article 171 which, in the case at
bar, falls under paragraph 2 of Article 171, i.e., causing it to appear that persons
have participated in any act or proceeding when they did not in fact so participate;
(2) the falsification was committed on a private document; and (3) the falsification
caused damage or was committed with intent to cause damage to a third party.
Although the public prosecutor designated the offense charged in the information
as estafa through falsification of commercial document, petitioner could be
convicted of falsification of private document, had it been proper, under the wellsettled rule that it is the allegations in the information that determines the nature
of the offense and not the technical name given by the public prosecutor in the
preamble of the information. We explained this principle in the case of U.S. v. Lim
San19 in this wise:
From a legal point of view, and in a very real sense, it is of no concern to the
accused what is the technical name of the crime of which he stands charged. It in
no way aids him in a defense on the merits. x x x That to which his attention
should be directed, and in which he, above all things else, should be most
interested, are the facts alleged. The real question is not did he commit a crime
given in the law some technical and specific name, but did he perform the acts
alleged in the body of the information in the manner therein set forth. x x x The
real and important question to him is, "Did you perform the acts alleged in the
36

manner alleged?" not, "Did you commit a crime named murder?" If he performed
the acts alleged, in the manner stated, the law determines what the name of the
crime is and fixes the penalty therefor. x x x If the accused performed the acts
alleged in the manner alleged, then he ought to be punished and punished
adequately, whatever may be the name of the crime which those acts
constitute.20
The facts alleged in the information are sufficient to constitute the crime of
falsification of private document. Specifically, the allegations in the information can
be broken down into the three aforestated essential elements of this offense as
follows: (1) petitioner caused it to appear in Disbursement Voucher No. 58380 that
Diosdado Guillas was entitled to a finders fee from AFPSLAI in the amount of
P21,000.00 when in truth and in fact no finders fee was due to him; (2) the
falsification was committed on Disbursement Voucher No. 58380; and (3) the
falsification caused damage to AFPSLAI in the amount of P21,000.00.
The first element of the offense charged in the information was proven by the
prosecution. The testimonies of the prosecution witnesses, namely, Diosdado
Guilas and Judy Balangue, as well as the presentation of Disbursement Voucher No.
58380 established that petitioner caused the preparation of the voucher in the
name of Guilas despite knowledge that Guilas was not entitled to the finders fee.
Significantly, petitioner admitted his participation in falsifying the voucher when he
testified that he authorized the release of the voucher in the name of Guilas upon
the request of Ernesto Hernandez. While petitioner did not personally prepare the
voucher, he could be considered a principal by induction, had his conviction been
proper, since he was the president and general manager of AFPSLAI at the time so
that his employees merely followed his instructions in preparing the falsified
voucher.
The second element of the offense charged in the information, i.e., the falsification
was committed in Disbursement Voucher No. 58380, a private document, is
likewise present. It appears that the public prosecutor erroneously characterized
the disbursement voucher as a commercial document so that he designated the
offense as estafa through falsification of commercial document in the preamble of
the information. However, as correctly ruled by the trial court,21 the subject
voucher is a private document only; it is not a commercial document because it is
not a document used by merchants or businessmen to promote or facilitate trade
or credit transactions22 nor is it defined and regulated by the Code of Commerce
or other commercial law.23 Rather, it is a private document, which has been
defined as a deed or instrument executed by a private person without the
intervention of a public notary or of other person legally authorized, by which some
disposition or agreement is proved, evidenced or set forth,24 because it acted as
the authorization for the release of the P21,000.00 finders fee to Guilas and as the
receipt evidencing the payment of this finders fee.
37

While the first and second elements of the offense charged in the information were
satisfactorily established by the prosecution, it is the third element which is
decisive in the instant case. In the information, it was alleged that petitioner
caused damage in the amount of P21,000.00 to AFPSLAI because he caused it to
appear in the disbursement voucher that Diosdado Guilas was entitled to a
P21,000.00 finders fee when in truth and in fact AFPSLAI owed no such sum to
him. However, contrary to these allegations in the information, petitioner was able
to prove that AFPSLAI owed a finders fee in the amount of P21,000.00 although
not to Guilas but to Ernesto Hernandez.
It was positively shown that Hernandez was able to solicit a P2,100,000.00 worth of
investment for AFPSLAI from Rosario Mercader which entitled him to a finders fee
equivalent to one percent of the amount solicited (i.e., P21,000.00) under the
Finders Fee Program. The documentary evidence consisting of the Certificate of
Capital Contribution Monthly No. 5217825 which was presented by the prosecution
categorically stated that Rosario Mercader deposited P2,100,000.00 worth of
investment in AFPSLAI. In fact, Rosario Mercader was no longer presented as a
defense witness in view of the stipulation by the prosecution on the fact that
Mercader was a depositor of AFPSLAI and that Hernandez was the one who
convinced her to make such deposit.26 Moreover, the defense showed that the
disbursement voucher was merely placed in the name of Guilas upon the request
of Hernandez so that he would have a lower tax base. Thus, after Guilas received
the P21,000.00 from AFPSLAI, he gave the money to petitioner who in turn
surrendered the amount to Hernandez.
It was further established that Hernandez was an associate member of AFPSLAI
and, thus, covered by the Finders Fee Program. The prosecution tried to cast doubt
on the validity of Hernandezs membership in the association but it merely relied
on the unsubstantiated claims of its two rebuttal witnesses, namely, Ma. Victoria
Maigue, membership affairs office supervisor of AFPSLAI and Ma. Fe Moreno, legal
officer of AFPSLAI, who claimed that Hernandez was disqualified from being an
associate member under AFPSLAIs by-laws. However, except for a recital of
certain provisions of the by-laws, they failed to support their claims with
documentary evidence clearly showing that Hernandez was disqualified from being
an associate member. Significantly, Maigue admitted on cross-examination that
Hernandezs membership was approved by AFPSLAIs membership committee and
was issued an AFPSLAI I.D. card.27 Documentary evidence consisting of
Hernandezs I.D. card as well as the oral testimonies of petitioner, Arevalo and
Hernandez, and the admission of Maigue on cross-examination, support the claim
of the defense that Hernandez was an associate member of AFPSLAI.
Considering that Hernandez was able to solicit a P2,100,000.00 investment from
Mercader, it follows that he was entitled to receive the finders fee in the amount
38

of P21,000.00. AFPSLAI suffered no damage because it really owed the P21,000.00


finders fee to Hernandez albeit the sum was initially paid to Guilas and only later
turned over to Hernandez. Clearly then, the third essential element of the offense
as alleged in the information, i.e., the falsification caused damage to AFPSLAI in
the amount of P21,000.00, was not proven by the prosecution.
In all criminal prosecutions, the burden of proof is on the prosecution to establish
the guilt of the accused beyond reasonable doubt.28 It has the duty to prove each
and every element of the crime charged in the information to warrant a finding of
guilt for the said crime or for any other crime necessarily included therein.
However, in the case at bar, the prosecution failed to prove the third essential
element of the crime charged in the information. Thus, petitioner should be
acquitted due to insufficiency of evidence.
The trial court convicted petitioner of falsification of private document, while
conceding that AFPSLAI suffered no damage, however, the court reasoned that the
third essential element of falsification of private document was present because
the falsification of the voucher was done with criminal intent to cause damage to
the government considering that its purpose was to lower the tax base of
Hernandez and, thus, allow him to evade payment of taxes on the finders fee.
We find ourselves unable to agree with this ratiocination of the trial court because
it violates the constitutional right29 of petitioner to be informed of the nature and
cause of the accusation against him. As early as the 1904 case of U.S. v.
Karelsen,30 the rationale of this fundamental right of the accused was already
explained in this wise:
The object of this written accusation was First. To furnish the accused with such a
description of the charge against him as will enable him to make his defense; and
second, to avail himself of his conviction or acquittal for protection against a
further prosecution for the same cause; and third, to inform the court of the facts
alleged, so that it may decide whether they are sufficient in law to support a
conviction, if one should be had. (United States vs. Cruikshank, 92 U.S. 542.) In
order that this requirement may be satisfied, facts must be stated, not conclusions
of law. Every crime is made up of certain acts and intent; these must be set forth in
the complaint with reasonable particularity of time, place, names (plaintiff and
defendant), and circumstances. In short, the complaint must contain a specific
allegation of every fact and circumstances necessary to constitute the crime
charged.31 (Emphasis supplied)
It is fundamental that every element constituting the offense must be alleged in
the information. The main purpose of requiring the various elements of a crime to
be set out in the information is to enable the accused to suitably prepare his
defense because he is presumed to have no independent knowledge of the facts
39

that constitute the offense.32 The allegations of facts constituting the offense
charged are substantial matters and an accuseds right to question his conviction
based on facts not alleged in the information cannot be waived.33 No matter how
conclusive and convincing the evidence of guilt may be, an accused cannot be
convicted of any offense unless it is charged in the information on which he is tried
or is necessarily included therein.34 To convict him of a ground not alleged while
he is concentrating his defense against the ground alleged would plainly be unfair
and underhanded.35 The rule is that a variance between the allegation in the
information and proof adduced during trial shall be fatal to the criminal case if it is
material and prejudicial to the accused so much so that it affects his substantial
rights.36
Thus, in Alonto v. People,37 Dico v. Court of Appeals38 and Ongson v. People,39 we
acquitted the accused for violation of Batas Pambansa Bilang 22 ("The Bouncing
Checks Law") because there was a variance between the identity and date of
issuance of the check alleged in the information and the check proved by the
prosecution during trial:
This Court notes, however, that under the third count, the information alleged that
petitioner issued a check dated May 14, 1992 whereas the documentary evidence
presented and duly marked as Exhibit "I" was BPI Check No. 831258 in the amount
of P25,000 dated April 5, 1992. Prosecution witness Fernando Sardes confirmed
petitioner's issuance of the three BPI checks (Exhibits "G," "H," and "I"), but
categorically stated that the third check (BPI Check No. 831258) was dated May
14, 1992, which was contrary to that testified to by private complainant Violeta
Tizon, i.e., BPI check No. 831258 dated April 5, 1992. In view of this variance, the
conviction of petitioner on the third count (Criminal Case No. Q-93-41751) cannot
be sustained. It is on this ground that petitioner's fourth assignment of error is
tenable, in that the prosecution's exhibit, i.e., Exhibit "I" (BPI Check No. 831258
dated April 5, 1992 in the amount of P25,000) is excluded by the law and the rules
on evidence. Since the identity of the check enters into the first essential element
of the offense under Section 1 of B.P. 22, that is, that a person makes, draws or
issues a check on account or for value, and the date thereof involves its second
element, namely, that at the time of issue the maker, drawer or issuer knew that
he or she did not have sufficient funds to cover the same, there is a violation of
petitioner's constitutional right to be informed of the nature of the offense charged
in view of the aforesaid variance, thereby rendering the conviction for the third
count fatally defective.40 (Underscoring supplied)
Similarly, in the case of Burgos v. Sandiganbayan,41 we upheld the constitutional
right of the accused to be informed of the accusation against him in a case
involving a variance between the means of committing the violation of Section 3(e)
of R.A. 3019 alleged in the information and the means found by the
Sandiganbayan:
40

Common and foremost among the issues raised by petitioners is the argument that
the Sandiganbayan erred in convicting them on a finding of fact that was not
alleged in the information. They contend that the information charged them with
having allowed payment of P83,850 to Ricardo Castaeda despite being aware and
knowing fully well that the surveying instruments were not actually repaired and
rendered functional/operational. However, their conviction by the Sandiganbayan
was based on the finding that the surveying instruments were not repaired in
accordance with the specifications contained in the job orders.
xxxx
In criminal cases, where the life and liberty of the accused is at stake, due process
requires that the accused be informed of the nature and cause of the accusation
against him. An accused cannot be convicted of an offense unless it is clearly
charged in the complaint or information. To convict him of an offense other than
that charged in the complaint or information would be a violation of this
constitutional right.
The important end to be accomplished is to describe the act with sufficient
certainty in order that the accused may be appraised of the nature of the charge
against him and to avoid any possible surprise that may lead to injustice.
Otherwise, the accused would be left in the unenviable state of speculating why he
is made the object of a prosecution.
xxxx
There is no question that the manner of commission alleged in the information and
the act the Sandiganbayan found to have been committed are both violations of
Section 3(e) of R.A. 3019. Nonetheless, they are and remain two different means of
execution and, even if reference to Section 3(e) of R.A. 3019 has been made in the
information, appellants conviction should only be based on that which was
charged, or included, in the information. Otherwise, there would be a violation of
their constitutional right to be informed of the nature of the accusation against
them.
In Evangelista v. People, a judgment of conviction by the Sandiganbayan, for
violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act, was reversed
by the Court on the ground that accused was made liable for acts different from
those described in the information. The accused therein was convicted on the
finding that she failed to identify with certainty in her certification the kinds of
taxes paid by Tanduay Distillery, Inc., although the information charged her with
falsifying said certificate. The Court said that, constitutionally, the accused has a
right to be informed of the nature and cause of the accusation against her. To
41

convict her of an offense other than that charged in the complaint or information
would be a violation of this constitutional right.
Contrary to the stand of the prosecution, the allegations contained in the
information and the findings stated in the Sandiganbayan decision are not
synonymous. This is clearly apparent from the mere fact that the defenses
applicable for each one are different. To counter the allegations contained in the
information, petitioners only had to prove that the instruments were repaired and
rendered functional/operational. Under the findings stated in the Sandiganbayan
decision, petitioners defense would have been to show not only that the
instruments were repaired, but were repaired in accordance with the job order.
xxxx
This is not to say that petitioners cannot be convicted under the information
charged. The information in itself is valid. It is only that the Sandiganbayan erred in
convicting them for an act that was not alleged therein. x x x.42 (Underscoring
supplied)
As in the Burgos case, the information in the case at bar is valid, however, there is
a variance between the allegation in the information and proof adduced during trial
with respect to the third essential element of falsification of private document, i.e.,
the falsification caused damage or was committed with intent to cause damage to
a third party. To reiterate, petitioner was charged in the information with causing
damage to AFPSLAI in the amount of P21,000.00 because he caused it to appear in
the disbursement voucher that Guilas was entitled to a P21,000.00 finders fee
when in truth and in fact AFPSLAI owed no such amount to Guilas. However, he
was convicted by the trial court of falsifying the voucher with criminal intent to
cause damage to the government because the trial court found that petitioners
acts were designed to lower the tax base of Hernandez and aid the latter in
evading payment of taxes on the finders fee.
We find this variance material and prejudicial to petitioner which, perforce, is fatal
to his conviction in the instant case. By the clear and unequivocal terms of the
information, the prosecution endeavored to prove that the falsification of the
voucher by petitioner caused damage to AFPSLAI in the amount of P21,000.00 and
not that the falsification of the voucher was done with intent to cause damage to
the government. It is apparent that this variance not merely goes to the identity of
the third party but, more importantly, to the nature and extent of the damage done
to the third party. Needless to state, the defense applicable for each is different.
More to the point, petitioner prepared his defense based precisely on the
allegations in the information. A review of the records shows that petitioner
concentrated on disproving that AFPSLAI suffered damage for this was the charge
42

in the information which he had to refute to prove his innocence. As previously


discussed, petitioner proved that AFPSLAI suffered no damage inasmuch as it really
owed the finders fee in the amount of P21,000.00 to Hernandez but the same was
placed in the name of Guilas upon Hernandezs request. If we were to convict
petitioner now based on his intent to cause damage to the government, we would
be riding roughshod over his constitutional right to be informed of the accusation
because he was not forewarned that he was being prosecuted for intent to cause
damage to the government. It would be simply unfair and underhanded to convict
petitioner on this ground not alleged while he was concentrating his defense
against the ground alleged.
The surprise and injustice visited upon petitioner becomes more evident if we take
into consideration that the prosecution never sought to establish that petitioners
acts were done with intent to cause damage to the government in that it
purportedly aided Hernandez in evading the payment of taxes on the finders fee.
The Bureau of Internal Revenue was never made a party to this case. The income
tax return of Hernandez was, likewise, never presented to show the extent, if any,
of the actual damage to the government of the supposed under declaration of
income by Hernandez. Actually, the prosecution never tried to establish actual
damage, much less intent to cause damage, to the government in the form of lost
income taxes. There was here no opportunity for petitioner to object to the
evidence presented by the prosecution on the ground that the evidence did not
conform to the allegations in the information for the simple reason that no such
evidence was presented by the prosecution to begin with.
Instead, what the trial court did was to deduce intent to cause damage to the
government from the testimony of petitioner and his three other witnesses,
namely, Arevalo, Hernandez and Madet, that the substitution of the names in the
voucher was intended to lower the tax base of Hernandez to avoid payment of
taxes on the finders fee. In other words, the trial court used part of the defense of
petitioner in establishing the third essential element of the offense which was
entirely different from that alleged in the information. Under these circumstances,
petitioner obviously had no opportunity to defend himself with respect to the
charge that he committed the acts with intent to cause damage to the government
because this was part of his defense when he explained the reason for the
substitution of the names in the voucher with the end goal of establishing that no
actual damage was done to AFPSLAI. If we were to approve of the method
employed by the trial court in convicting petitioner, then we would be sanctioning
the surprise and injustice that the accuseds constitutional right to be informed of
the nature and cause of the accusation against him precisely seeks to prevent. It
would be plain denial of due process.
In view of the foregoing, we rule that it was error to convict petitioner for acts
which purportedly constituted the third essential element of the crime but which
43

were entirely different from the acts alleged in the information because it violates
in no uncertain terms petitioners constitutional right to be informed of the nature
and cause of the accusation against him.
No doubt tax evasion is a deplorable act because it deprives the government of
much needed funds in delivering basic services to the people. However, the
culpability of petitioner should have been established under the proper information
and with an opportunity for him to adequately prepare his defense. It is worth
mentioning that the public prosecutor has been apprised of petitioners defense in
the counter-affidavit43 that he filed before the NBI. He claimed there that AFPSLAI
really owed the P21,000.00 finders fee not to Guilas but to Hernandez and that the
finders fee was placed in the name of Guilas under a purported financial
arrangement between petitioner and Guilas. Yet in his Resolution44 dated
September 14, 1992, the public prosecutor disregarded petitioners defense and
proceeded to file the information based on the alleged damage that petitioner
caused to AFPSLAI in the amount of P21,000.00 representing unwarranted
payment of finders fee.45 During the trial proper, the prosecution was again
alerted to the fact that AFPSLAI suffered no actual damage and that the
substitution of the names in the voucher was designed to aid Hernandez in evading
the payment of taxes on the finders fee. This was shown by no less than the
prosecutions own documentary evidence the Certificate of Capital Contribution
Monthly No. 52178 in the amount of P2,100,000.00 issued to Rosario Mercader
which was prepared and identified by the prosecution witness, Judy Balangue.
Later on, the testimonies of the defense witnesses, Arevalo, Hernandez, Madet and
petitioner, clearly set forth the reasons for the substitution of the names in the
disbursement voucher. However, the prosecution did not take steps to seek the
dismissal of the instant case and charge petitioner and his cohorts with the proper
information before judgment by the trial court as expressly allowed under Section
19,46 Rule 119 of the Rules of Court.47 Instead, the prosecution proceeded to try
petitioner under the original information even though he had an adequate defense
against the offense charged in the information. Regrettably, these mistakes of the
prosecution can only benefit petitioner.
In closing, it is an opportune time to remind public prosecutors of their important
duty to carefully study the evidence on record before filing the corresponding
information in our courts of law and to be vigilant in identifying and rectifying
errors made. Mistakes in filing the proper information and in the ensuing
prosecution of the case serve only to frustrate the States interest in enforcing its
criminal laws and adversely affect the administration of justice.
WHEREFORE, the petition is GRANTED. The September 29, 2004 Decision and April
26, 2005 Resolution of the Court Appeals in CA-G.R. CR No. 26556 are REVERSED
and SET ASIDE. Petitioner is ACQUITTED based on reasonable doubt. The Bail Bond
is CANCELLED.
44

SO ORDERED.
G.R. No. 189343
July 10, 2013
BENILDA N. BACASMAS, Petitioner, vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents.
x-----------------------x
G.R. No. 189369
ALAN C. GAVIOLA, Petitioner, vs.
PEOPLE OF THE PHILIPPINES, Respondents.
x-----------------------x
G.R. No. 189553
EUSTAQUIO B. CESA, Petitioner, vs.
PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
SERENO, CJ.:
Before us are three consolidated cases: (1) Petition for Review on Certiorari1 dated
16 September 2009 (G.R. No. 189343), (2) Petition for Review on Certiorari2 dated
15 September 2009 (G.R. No. 189369), and (3) Petition for Review on Certiorari3
dated 12 October 2009 (G.R. No. 189553). All assail the Decision4 in Crim. Case
No. 26914 dated 7 May 2009 of the Sandiganbayan, the dispositive portion of
which reads:
ACCORDINGLY, accused Alan C. Gaviola ("Gaviola"), Eustaquio B. Cesa ("Cesa"),
Benilda N. Bacasmas ("Bacasmas") and Edna J. Jaca ("Jaca") are found guilty
beyond reasonable doubt for violation of Section 3 (e) of Republic Act No. 3019 and
are sentenced to suffer in prison the penalty of 12 years and 1 month to 15 years.
They also have to suffer perpetual disqualification from holding any public office
and to indemnify jointly and severally the City Government of Cebu the amount of
Nine Million Eight Hundred Ten Thousand, Seven Hundred Fifty-two and 60/100
Pesos (Php 9,810,752.60).5 (Emphasis in the original)
The Petitions also question the Resolution6 dated 27 August 2009 denying the
Motions for Reconsideration7 of the Decision dated 7 May 2009.
ANTECEDENT FACTS
All the petitioners work for the City Government of Cebu.8 Benilda B. Bacasmas
(Bacasmas), the Cash Division Chief, is the petitioner in G.R. No. 189343.9 Alan C.
Gaviola (Gaviola), the City Administrator, is the petitioner in G.R. No. 189369.10
Eustaquio B. Cesa (Cesa), the City Treasurer, is the petitioner in G.R. No.
189553.11
45

By virtue of their positions, they are involved in the process of approving and
releasing cash advances for the City. The procedure is as follows:
A written request for a cash advance is made by paymaster Luz Gonzales
(Gonzales), who then submits it to Cash Division Chief Bacasmas for approval.
Once the latter approves the request, she affixes her initials to the voucher, which
she forwards to City Treasurer Cesa for his signature in the same box. By signing,
Bacasmas and Cesa certify that the expense or cash advance is necessary, lawful,
and incurred under their direct supervision.12
Thereafter, the voucher is forwarded to City Accountant Edna C. Jaca (Jaca) for
processing and pre-audit. She also signs the voucher to certify that there is
adequate available funding/budgetary allotment; that the expenditures are
properly certified and supported by documents; and that previous cash advances
have been liquidated and accounted for. She then prepares an Accountants Advice
(Advice).13
This Advice is returned with the voucher to the Chief Cashier for the preparation of
the check. After it has been prepared, she affixes her initials to the check, which
Cesa then signs. Afterwards, City Administrator Gaviola approves the voucher and
countersigns the check.14
The voucher, the Advice, and the check are then returned to the Cash Division,
where Gonzales signs the receipt portion of the voucher, as well as the Check
Register to acknowledge receipt of the check for encashment.15
Upon receipt of the check, Gonzales encashes it at the bank, signs the voucher,
and records the cash advance in her Individual Paymaster Cashbook. She then
liquidates it within five days after payment.16
A report of those cash advances liquidated by Gonzales is called a Report of
Disbursement (RD). An RD must contain the audit voucher number, the names of
the local government employees who were paid using the money from the cash
advance, the amount for each employee, as well as the receipts. The RDs are
examined and verified by the City Auditor and are thereafter submitted to the Cash
Division for recording in the official cash book.17
On 4 March 1998, COA issued Office Order No. 98-001 creating a team to conduct
an examination of the cash and accounts of the accountable officers of the Cash
Division, City Treasurers Office of Cebu City.18
This team conducted a surprise cash count on 5 March 1998.19 The examination
revealed an accumulated shortage of P9,810,752.60 from 20 September 1995 to 5
March 1998 from the cash and accounts of Gonzales.20 The team found that
Bacasmas, Gaviola, Cesa, and Jaca failed to follow the above-mentioned procedure,
46

thus facilitating the loss of more than nine million pesos on the part of the city
government. Specifically, the team said in its report that there were irregularities in
the grant, utilization, and liquidation of cash advances; shortages were concealed;
and inaccurate and misleading pieces of information were included in the financial
statements.21 These irregularities were manifested in the following: additional
cash advances were granted even if previous cash advances had not yet been
liquidated, cash advance vouchers for salaries were not supported by payrolls or
lists of payees, and cash advances for salaries and wages were not liquidated
within five days after each 15th day or end-of-the-month pay period.22
The report stated that Bacasmas, Gaviola, Cesa, and Jaca not only signed, certified,
and approved the cash advance vouchers, but also signed and countersigned the
checks despite the deficiencies, which amounted to a violation of Republic Act No.
(R.A.) 7160; Presidential Decree No. (P.D.) 1445; and the circulars issued by the
Commission on Audit (COA), specifically COA Circular Nos. 90-331, 92-382 and 97002.23 According to the COA, the violation of the foregoing laws, rules, and
regulations facilitated the loss of a huge amount of public funds at the hands of
Gonzales.24
Hence, an Information25 was filed with the Sandiganbayan on 30 July 2001 against
Bacasmas, Gaviola, Cesa, and Jaca, to wit:
That on or about the 5th and subsequent thereto, at Cebu City, Province of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, above-named
accused, ALAN C. GAVIOLA, EUSTAQUIO B. CESA, BENILDA N. BACASMAS and EDNA
J. JACA, public officers, being then the City Administrator, City Treasurer, Cash
Division Chief and City Accountant, respectively, of the Cebu City Government, in
such capacity and committing the offense in relation to Office, conniving and
confederating together and mutually helping with each other [sic], with deliberate
intent, with manifest partiality, evident bad faith and with gross inexcusable
negligence, did then and there allow LUZ M. GONZALES, Accountant I, Disbursing
Officer-Designate of the Cebu City Government, to obtain cash advances despite
the fact that she has previous unliquidated cash advances, thus allowing LUZ M.
GONZALES to accumulate Cash Advances amounting to NINE MILLION EIGHT
HUNDRED TEN day of March 1998, and for sometime prior THOUSAND SEVEN
HUNDRED FIFTY-TWO PESOS AND 60/100 (P9,810,752.60), PHILIPPINE CURRENCY,
which remains unliquidated, thus accused in the performance of their official
functions, had given unwarranted benefits to LUZ M. GONZALES and themselves,
to the damage and prejudice of the government, particularly the Cebu City
Government.26
The prosecution presented the testimonies of the COA Auditors who had conducted
the examination on the cash and accounts of Gonzales: Cecilia Chan, Jovita
Gabison, Sulpicio Quijada, Jr., Villanilo Ando, Jr., and Rosemarie Picson.27 The COA
47

Narrative Report28 on the results of the examination of the cash and accounts of
Gonzales covering the period 20 September 1995 to 05 March 1998 was also
introduced as evidence.29
Bacasmas testified in her own defense. She said that she could not be held liable,
because it was not her responsibility to examine the cash book. She pointed to Jaca
and the City Auditor as the ones responsible for determining whether the
paymaster had existing unliquidated cash advances. Bacasmas further testified
that she allowed the figures to be rounded off to the nearest million without
totalling the net payroll, because it was customary to round off the cash advance
to the nearest amount.30
Cesa averred that Jaca was the approving authority in granting cash advances.
Hence, when he signed the vouchers, he merely relied on Jacas certification that
Gonzales had already liquidated her cash advances. Besides, he said, he had
already delegated the function of determining whether the amount stated in the
disbursement voucher was equal to the net pay, because it was humanly
impossible for him to supervise all the personnel of his department.31
Jaca admitted that cash advances were granted even if there were no liquidations,
so that salaries could be paid on time, because cash advances usually overlapped
with the previous one. Additionally, she acknowledged that when she affixed her
signatures to the vouchers despite the non-attachment of the payrolls, she was
aware that Gonzales still had unliquidated cash advances.32
Lastly, Gaviola claimed that when he affixed his signatures, he was not aware of
any anomaly. Allegedly, he only signed on the basis of the signatures of Cesa and
Jaca.33
The Sandiganbayan, in its Decision dated 7 May 2009, did not give credence to the
defense of the accused, but instead afforded significant weight to the COA
Narrative Report submitted in evidence. It found that the accused, as public
officers, had acted with gross inexcusable negligence by religiously disregarding
the instructions for preparing a disbursement voucher and by being totally remiss
in their respective duties and functions under the Local Government Code of
1991.34 Their gross inexcusable negligence amounted to bad faith, because they
still continued with the illegal practice even if they admittedly had knowledge of
the relevant law and COA rules and regulations.35 The Sandiganbayan held that
the acts of the accused had caused not only undue injury to the government
because of the P9,810,752.60 shortage, but also gave unwarranted benefit to
Gonzales by allowing her to obtain cash advances to which she was not entitled.36
Lastly, it found conspiracy to be present in the acts and omissions of the accused
showing that they had confederated, connived with, and mutually helped one
48

another in causing undue injury to the government through the loss of public
money.37
Gaviola, Cesa, Bacasmas, and Jaca individually filed their Motions for
Reconsideration of the 7 May 2009 Decision.38 Their motions impugned the
sufficiency of the Information and the finding of gross inexcusable negligence,
undue injury, and unwarranted benefit.39 To support their innocence, they invoked
the cases of Arias v. Sandiganbayan,40 Magsuci v. Sandiganbayan,41 Sistoza v.
Desierto,42 Alejandro v. People,43 and Albert v. Gangan,44 in which we held that
the heads of office may rely to a reasonable extent on their subordinates.45 The
Motion for Reconsideration of Jaca also averred that her criminal and civil liabilities
had been extinguished by her death on 24 May 2009.46
The Sandiganbayan, in a Resolution47 promulgated 27 August 2009 denied the
Motions for Reconsideration of the accused. It ruled that the Information was
sufficient, because the three modes of violating Section 3(e) of R.A. 3019
commonly involved willful, intentional, and conscious acts or omissions when there
is a duty to act on the part of the public official or employee.48 Furthermore, the
three modes may all be alleged in one Information.49 The Sandiganbayan held
that the accused were all guilty of gross inexcusable negligence. Claiming that it
was the practice in their office, they admittedly disregarded the observance of the
law and COA rules and regulations on the approval and grant of cash advances.50
The anti-graft court also stated that the undue injury to the government was
unquestionable because of the shortage amounting to P9,810,752.60.51 It further
declared that the aforementioned cases cited by the accused were inapplicable,
because there was paucity of evidence of conspiracy in these cases.52 Here,
conspiracy was duly proven in that the silence and inaction of the accused - albeit
ostensibly separate and distinct indicate, if taken collectively, that they are vital
pieces of a common design.53 Finally, the Sandiganbayan decided that although
the criminal liability of Jaca was extinguished upon her death, her civil liability
remained.54 Hence, the Motions for Reconsideration were denied.55
Thus, Bacasmas, Gaviola, and Cesa filed their respective Petitions for Review on
Certiorari, in which they rehashed the arguments they had put forward in their
Motions for Reconsideration previously filed with the Sandiganbayan.
We resolved to consolidate the three Petitions on 23 November 2009.56 The Office
of the Special Prosecutor was required to comment on the three Petitions,57 after
which petitioners were instructed to file a Reply,58 which they did.59
Petitioners, through their respective Petitions for Review on Certiorari and
Comments, bring these two main issues before us:
I. Whether the Information was sufficient; and
49

II. Whether petitioners are guilty beyond reasonable doubt of violating Section 3(e)
of Republic Act No. 3019
We deny the Petitions.
I.
The Information specified when the crime was committed, and it named all of the
accused and their alleged acts or omissions constituting the offense charged.
An information is deemed sufficient if it contains the following: (a) the name of all
the accused; (b) the designation of the offense as given in the statute; (c) the acts
or omissions complained of as constituting the offense; (d) the name of the
offended party; (e) the approximate date of the commission of the offense; and (f)
the place where the offense was committed.
Cesa and Gaviola question the sufficiency of the Information on three grounds:
first, it did not specify a reasonable time frame within which the offense was
committed, in violation of their right to be informed of the charge against them;
second, not all of the accused were named, as Gonzales was not charged in the
Information; and third, the Information did not specify an offense, because
negligence and conspiracy cannot co-exist in a crime.
The Sandiganbayan earlier held that the Information was sufficient in that it
contained no inherent contradiction and properly charged an offense. We uphold
its ruling for the following reasons:
First, it is not necessary to state the precise date when the offense was committed,
except when it is a material ingredient thereof.60 The offense may be alleged to
have been committed on a date as near as possible to the actual date of its
commission.61 Here, the date is not a material ingredient of the crime, not having
been committed on one day alone, but rather within a period of time ranging from
20 September 1995 to 5 March 1998. Hence, stating the exact dates of the
commission of the crime is not only unnecessary, but impossible as well. That the
Information alleged a date and a period during which the crime was committed
was sufficient, because it duly informed petitioners that before and until 5 March
1998, over nine million pesos had been taken by Gonzales as a result of
petitioners acts. These acts caused undue injury to the government and
unwarranted benefits to the said paymaster.
Second, the Information charges petitioners with violating Section 3(e) of R.A.
3019, to wit:

50

Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of


public officers already penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby declared to be unlawful.
xxxx
(e) Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge
of his official, administrative or judicial functions through manifest partiality,
evident bad faith or gross inexcusable negligence.
Cesa contends that Gonzales should have been included in the Information,
because the latter incurred cash shortages and allegedly had unliquidated cash
advances.62 Cesa is wrong. The Information seeks to hold petitioners accountable
for their actions, which allowed Gonzales to obtain cash advances, and paved the
way for her to incur cash shortages, leading to a loss of over nine million pesos.
Thus, the Information correctly excluded her because her alleged acts did not fall
under the crime charged in the Information.
Third and last, the Information sufficiently specified the offense that violated
Section 3(e) of R.A. 3019, the essential elements of which are as follows:
1. The accused must be a public officer discharging administrative, judicial or
official functions;
2. The accused must have acted with manifest partiality, evident bad faith or gross
inexcusable negligence; and
3. The action of the accused caused undue injury to any party, including the
government, or gave any private party unwarranted benefits, advantage or
preference in the discharge of the functions of the accused.63
The Information is sufficient, because it adequately describes the nature and cause
of the accusation against petitioners,64 namely the violation of the
aforementioned law. The use of the three phrases "manifest partiality," "evident
bad faith" and "inexcusable negligence" in the same Information does not mean
that three distinct offenses were thereby charged but only implied that the offense
charged may have been committed through any of the modes provided by the
law.65 In addition, there was no inconsistency in alleging both the presence of
conspiracy and gross inexcusable negligence, because the latter was not simple
negligence.
Rather, the negligence involved a willful, intentional, and conscious indifference to
the consequences of ones actions or omissions.66
51

II.
Petitioners gross negligence amounting to bad faith, the undue injury to the
government, and the unwarranted benefits given to Gonzales, were all proven
beyond reasonable doubt.
Petitioners do not controvert the first element of the offense but assail the
Sandiganbayans finding of gross inexcusable negligence, undue injury and
unwarranted benefit. Nevertheless, their contention must fail.
Petitioners committed gross
negligence amounting to bad faith
when they approved and disbursed
the cash advances in violation of law
and rules and regulations.
Petitioners being the Cash Division Chief, City Treasurer and City Administrator
have to comply with R.A. 7160, P.D. 1445, and COA Circulars 90-331, 92-382, and
97-002 on the proper procedure for the approval and grant of cash advances.
These laws and rules and regulations state that cash advances can only be
disbursed for a legally authorized specific purpose and cannot be given to officials
whose previous cash advances have not been settled or properly accounted for.67
Cash advances should also be equal to the net amount of the payroll for a certain
pay period, and they should be supported by the payroll or list of payees and their
net payments.68
However, petitioners failed to observe the foregoing. We quote hereunder the
findings of the COA team as contained in its Narrative Report:
A. Granting, Utilization and Liquidation of cash advances:
1. During the period, September 20, 1995 to March 5, 1998, records and
verification documents show that additional cash advances were granted (Annex
13), even if the previous cash advances were not yet liquidated.
It resulted in excessive granting of cash advances, which created the opportunity
to misappropriate public funds since excess or idle funds were placed in the hands
of the paymaster under her total control and disposal. This is in violation of Section
89, PD 1445; Section 339, RA 7160 and paragraph 4.1.2 of COA Circular No. 97002.
2. The amounts of cash advances for salary payments were not equal to the net
amount of the payroll for a pay period in violation of par. 4.2.1. COA Circular No.
90-331. Section 48 (g), COA Circular No. 92-382 and par. 4.2.1, COA Circular No.
97-002. In fact, all cash advance vouchers for salaries were not supported by
payrolls or list of payees to determine the amount of the cash advance to be
52

granted, and that the face of the disbursement voucher (sample voucher marked
as Annex 14) did not indicate the specific office/ department and period covered
for which the cash advance was granted in violation of par. 4.1.5 COA Cir. No. 90331, Section 48(e) COA Cir. 92-382 and par. 4.1.7 and 4.2.2 COA Cir No. 97-002.
The amount of the cash advance could therefore be in excess of the required
amount of the payroll to be paid since it can not be determined which payroll, pay
period and department employees are going to be paid by the amount drawn.
Consequently, the liquidations which were made later, cannot identify which
particular cash advances are liquidated, considering that there are other previous
cash advances not yet liquidated, thus resulting in the failure to control cash on
hand.1wphi1
3. Cash advances for salaries and wages were not liquidated within 5 days after
each 15 day/end of the month pay period in violation of par. 5.1.1 COA Cir. 90-331
and 97-002 and Section 48 (k) of COA Cir No. 92-382. In fact, the balance of
unliquidated cash advance as of December 31, 1997 per audit, amounted to P
10,602,527.90 consisting of P6,388,147.94, P3,205,373.16 and P 1,009,006.80 for
General, SEF and Trust Fund (Annex 15) respectively, in violation of Par. 5.8 COA Cir
Nos. 90-331 and 97-002 and Section 48 (o) COA Cir. No. 92-382. However, the
balance shown was understated as of December 31, 1997 by P2,395,517.08 as
discussed in items D.2 pages 15 & 16.
Records showed that part of the total cash advances of P12,000,000.00 appears to
have been used to liquidate partially the previous years unliquidated cash
advance/balance of P10,602,527.90 since the accountable officer liquidated her
cash advance by way of cash refunds/returns from January 8-14, 1998 in the total
amount of P8,076,382.36 (Annex 15 E) in violation of par. 4.1.5 COA Cir. 90-331,
Section 48 of COA Cir 92-382 and par. 4.1.7 of COA Cir. 97-002.
The concerned City Officials (refer to Part III of this report) signed, certified and
approved the disbursements/cash advance vouchers, and signed and
countersigned the corresponding checks despite the deficiencies which are
violations of laws, rules and regulations mentioned in the preceding paragraphs.
The accountable officer was able to accumulate excess or idle funds within her
total control and disposal, resulting in the loss of public funds, due to the flagrant
violations by the concerned city officials of the abovementioned laws, rules and
regulations.
On the other hand, the verification and reconciliation of the paymasters
accountability cannot be determined immediately because the submission of
financial reports and its supporting schedules and vouchers/payrolls by the
Accounting Division was very much delayed (Annex 16), in violation of Section 122,
53

PD 1445, despite several communications from the Auditor to submit said reports,
latest of which is attached as Annex 16.a.
xxxx
D. The following practices of the Office of the City Accountant resulted in
inaccurate and misleading information in the financial statements including the
balance of unliquidated cash advances in violation of Section 111 and 112 of PD
1445:
1. Cash returns made on January 8 to 14, 1998 were recorded in the accounting
records as credits to Mrs. Gonzales accountability in December 1997 amounting to
P8,075,382.36 as shown in the subsidiary ledger (Annex 20. 1-4) and as evidenced
by the official receipts (Annex 20a. 1-6) as follows:
xxxx
2. Some liquidations/ disbursements in January 1998 were included as credits to
accountability or a reduction of the paymaster's accountability as of December
1997 amounting to P2,395,517.08.
xxxx
3. Verification of accounting records maintained in the Accounting Division
revealed that the index cards (Annex 21) as a control device in the processing of
cash advance voucher recorded only cash advances granted to Paymaster. It failed
to show the liquidations/ disposition of public funds. Hence, unliquidated balance of
cash advances can not be determined at a glance when a cash advance voucher is
being processed by the accounting personnel.
E. Other Deficiencies:
1. There were two claimants who alleged that they did not receive the financial aid
intended for them as fire victims. However, payroll showed that there were
initials/signatures indicated therein acknowledging receipt of said claim.
2. There were two (2) cash advance vouchers (Annex 22b. 1-2) which bear no
approval of proper official in BOX marked as "C" hereof, yet checks were issued in
violation of Section 4.5 of PD 1445 which provide that disbursement or disposition
of government funds of property shall invariably bear the approval of the proper
officials. x x x
3. Accounting records showed that JV #354 under Trust Fund in the amount of
P147,200.00 was a liquidation on December 31, 1997. x x x one payroll supporting
the JV was signed by only one (1) person x x x. The other two payrolls supporting
54

the JV were not signed/ approved by the concerned officials, which means that the
payrolls were not valid disbursements.69 (Emphases supplied)
The above findings of the COA cannot be any clearer in thoroughly describing the
illegal and anomalous practices of the accused which led to the loss of
P9,810,752.60 in peoples money.
When he testified before the anti-graft court, Bacasmas admitted that she did not
consider the net pay, which was lower than the amount requested, when she
affixed her signature to the vouchers, because it was supposedly common practice
for the paymaster to round off the figures.70 Furthermore, she signed the vouchers
after relying on the representation of Jaca, Cesa, and Gaviola.71
During his direct and cross-examination, Gaviola admitted that he had affixed his
signature to the vouchers, because they had already been signed by Bacasmas,
Cesa, and Jaca despite the incompleteness thereof the periods covered by the
vouchers were not stated; the employees who were to be paid by the cash
advance were not specified; no supporting documents were attached to the cash
advances requested; and there was no determination of whether the amounts
requested were equivalent to the net pay.72
Cesa said that because it was impossible for him to supervise all the personnel, he
instructed Bacasmas to examine and check the documents before signing them.73
Thus, once Cesa saw the signature of Bacasmas, he immediately assumed that the
documents were in order, and he then signed the vouchers.74
These facts show that petitioners failed to act in accordance with their respective
duties in the grant of cash advances. Moreover they repeatedly failed to do so.
Bacasmas signed 294 requests for cash advance, 11 disbursement vouchers, and 7
checks. Cesa signed cash advance requests and 299 disbursement vouchers.
Gaviola approved 303 disbursement vouchers and signed 355 checks.
All these acts demonstrate that petitioners, as correctly found by the
Sandiganbayan, were guilty of gross negligence amounting to bad faith. Gross and
inexcusable negligence is characterized by a want of even the slightest care,
acting or omitting to act in a situation in which there is a duty to act not
inadvertently, but wilfully and intentionally, with conscious indifference to
consequences insofar as other persons are affected.75 Bad faith does not simply
connote bad judgment or simple negligence.76 It imports a dishonest purpose or
some moral obloquy and conscious doing of a wrong, a breach of a known duty due
to some motive or interest or ill will that partakes of the nature of fraud.77
Petitioners were well aware of their responsibilities before they affixed their
signatures on the cash advance vouchers. Yet, they still chose to disregard the
requirements laid down by law and rules and regulations by approving the
55

vouchers despite the incomplete information therein, the previous unliquidated


cash advances, the absence of payroll to support the cash requested, and the
disparity between the requested cash advances and the total net pay. What is
worse is that they continue to plead their innocence, allegedly for the reason that
it was "common practice" in their office not to follow the law and rules and
regulations to the letter. For them to resort to that defense is preposterous,
considering that as public employees they are required to perform and discharge
their duties with the highest degree of excellence, professionalism, intelligence and
skill.78 The law and the rules are clear and do not provide for exceptions.
Petitioners acts show that they were
unified in illegally approving
irregular cash advance vouchers in
order to defraud the government.
As found by the Sandiganbayan, petitioners acts not only show gross negligence
amounting to bad faith, but, when taken together, also show that there was
conspiracy in their willful noncompliance with their duties in order to defraud the
government.
In order to establish the existence of conspiracy, unity of purpose and unity in the
execution of an unlawful objective by the accused must be proven.79 Direct proof
is not essential to show conspiracy.80 It is enough that there be proof that two or
more persons acted towards the accomplishment of a common unlawful objective
through a chain of circumstances, even if there was no actual meeting among
them.81
A cash advance request cannot be approved and disbursed without passing
through several offices, including those of petitioners. It is outrageous that they
would have us believe that they were not in conspiracy when over hundreds of
vouchers were signed and approved by them in a course of 30 months, without
their noticing irregularities therein that should have prompted them to refuse to
sign the vouchers. Clearly, they were in cahoots in granting the cash advances to
Gonzales. By these acts, petitioners defrauded the government of such a large sum
of money that should not have been disbursed in the first place, had they been
circumspect in performing their functions.
Not only were petitioners unified in defrauding the government, but they were also
unified in not reporting the negligence of their cohorts because of their own
negligence. Cesa himself admitted knowing that Gonzales had unliquidated cash
advances, yet he signed the vouchers. He also failed to inform the other officials
that they should not sign the vouchers and tolerated their negligence when they
affixed their signatures thereto. Petitioners, through their admissions before the
Sandiganbayan, all knew that there were irregularities in the vouchers; still they
56

failed to correct one another, because they themselves signed the vouchers
despite the glaring irregularities therein.
Petitioners cannot hide behind our declaration in Arias v. Sandiganbayan82 that
heads of offices cannot be convicted of a conspiracy charge just because they did
not personally examine every single detail before they, as the final approving
authorities, affixed their signatures to certain documents. The Court explained in
that case that conspiracy was not adequately proven, contrary to the case at bar in
which petitioners unity of purpose and unity in the execution of an unlawful
objective were sufficiently established. Also, unlike in Arias, where there were no
reasons for the heads of offices to further examine each voucher in detail,
petitioners herein, by virtue of the duty given to them by law as well as by rules
and regulations, had the responsibility to examine each voucher to ascertain
whether it was proper to sign it in order to approve and disburse the cash advance.
Petitioners wrongly approved Gonzales cash advance vouchers, thereby causing a
loss to the government in the amount of P9,810,752.60.
The third element of the offense is that the action of the offender caused undue
injury to any party, including the government; or gave any party any unwarranted
benefit, advantage or preference in the discharge of his or her functions. Here, the
Sandiganbayan found that petitioners both brought about undue injury to the
government and gave unwarranted benefit to Gonzales. It is not mistaken.
Undue injury means actual damage.83 It must be established by evidence84 and
must have been caused by the questioned conduct of the offenders.85 On the
other hand, unwarranted benefit, advantage, or preference means giving a gain of
any kind without justification or adequate reasons.86
When a cash examination is conducted, the paymaster should present her
cashbook, cash, and cash items for examination.87 Upon assessment thereof in
the instant case, it was discovered that P9,810,752.60 was missing, as plainly
evidenced by the COA Narrative Report, from which we quote:
Balance last cash examination, September 20, 1995 P 2,685,719.78
Add: Cash Advances received September 20, 1995 to March 5, 1998
Gen. Fund 193,320,350.00
SEF 107,400,600.00
Trust Fund 3,989,783.00
304,710,733.00
Total: P 307,396,452.78
Less: Liquidations September 20, 1995 to March 5, 1998
Gen. Fund 187,290,452.66
SEF 105,243,526.99
Trust Fund 2,750,722.51
295,284,752.16
Balance of Accountability, March 5, 1998 P 12,111,700.62
Less: Inventory of Cash and Cash Items Allowed
2,300,948.02
57

Shortage
(Emphasis supplied)
P 9,810,752.60 88
It is beside the point that no one complained about not receiving any salary from
the city government. The fact remains that more than nine million pesos was
missing public funds lost, to the detriment of the government.
This undue injury was brought about by petitioners act of approving the cash
advance vouchers of Gonzales even if they lacked the requirements prescribed by
law and rules and regulations, and even if Gonzales had failed to liquidate her
previous cash advances, thereby clearly giving her an unwarranted benefit.
No less than the Constitution declares that public office is a public trust.89 Public
officers and employees must at all times be accountable to the people and serve
them with utmost responsibility, integrity, loyalty, and efficiency.90 Petitioners, by
intentionally approving deficient cash advance vouchers, have manifestly failed to
live up to this constitutional standard.
III.
The indeterminate penalty of 12 years and one
month as minimum to 15 years as maximum is fully justified.
Under the Indeterminate Sentence Law, if the offense is punished by a special law
such as R.A. 3019, the trial court shall sentence the accused to an indeterminate
penalty, the maximum term of which shall not exceed the maximum fixed by this
law, and the minimum term shall not be less than the minimum prescribed by the
same law. The penalty for violation of Section 3(e) of R.A. 3019 is "imprisonment
for not less than six years and one month nor more than fifteen years, perpetual
disqualification from public office, and confiscation or forfeiture in favor of the
Government of any prohibited interest and unexplained wealth manifestly out of
proportion to his salary and other lawful income." Hence, the indeterminate
penalty of 12 years and 1 month as minimum to 15 years as maximum imposed by
the Sandiganbayan in the present case is within the range fixed by law.
However, we are aware that if the range of imposable penalty under the law were
to be divided into three tiers based on the length of imprisonment, the penalty
imposed in this case would be on the highest tier. Hence, the Sandiganbayan
should have explained the reason behind its imposed penalty, for while Section 9
of R.A. 3019 seems to grant it discretion over the indeterminate penalty to be
prescribed for violation of Section 3(e), this Court finds it only proper that the antigraft court justify the latters imposition of the highest possible penalty. Otherwise,
the exercise of this discretion would appear to be whimsical something that this
Court will not tolerate. After all, it is our duty to be vigilant in ensuring the
correctness and justness of the ultimate adjudication of cases before us.
58

Nevertheless, we find the imposition of the highest range of imposable penalty in


this case to be fully justified.1wphi1 In Jaca v. People of the Philippines,91
promulgated on 28 January 2013, the Court convicted the very same petitioners
herein of exactly the same kinds of violation of Section 3(e) of R.A. 3019 as those
in the present case and imposed therein the indeterminate penalty of 12 years and
1 month as minimum to 15 years as maximum. The violations in that case arose
from acts of gross inexcusable negligence similar in all respects to those
committed in this case, except for the amount of cash shortages involved and the
identity of the paymaster who benefitted from the acts of petitioners. Even the
period covered by the COA audit in Jaca 20 September 1995 to 5 March 1998 is
exactly the same as that in the present case. It is therefore clear that the Court has
previously determined these identical acts to be so perverse as to justify the
penalty of imprisonment of 12 years and 1 month as minimum to 15 years as
maximum. Hence, we adopt the same penalty in this case.
Indeed, the penalty imposed is justified, considering the extent of the negligent
acts involved in this case in terms of the number of statutory laws and regulations
violated by petitioners and the number of positive duties neglected. The Court
emphasizes that petitioners violated not just one but several provisions of various
regulations and laws namely: Sections 89 and 122 of P.O. 1445, Section 339 of R.A.
7160, paragraphs 4.1.2, 4.1.7, 4.2.1, 4.2.2, and 5.1.1 of COA Circular No. 97-002,
paragraphs 4.2.1, 4.1.5, and 5.1.1 of COA Circular No. 90-331~ and Section 48 (g),
(e), and (k) of COA Circular No. 92-382. Worse, they admitted being aware of these
regulations. These circumstances. coupled with the number of times such
instances of violations and negligence were wantonly and systematically repeated,
show that their acts bordered on malice. Hence, we are convinced that the penalty
imposed by the Sandiganbayan is warranted.
Furthermore, we take judicial notice of the need to stop these corrupt practices
that drain local government coffers of millions of pesos in taxpayers' money, which
could have been utilized for sorely needed services. In fact, as discussed in its
Narrative Report, the COA team found instances where fire victims alleged that
they did not receive the financial aid intended for them and yet the payroll showed
that there were initials/signatures indicated therein acknowledging receipt of said
claim. This diversion of people's money from their intended use has to end.
WHEREFORE, in view of the foregoing, the 07 May 2009 Decision and 27 August
2009 Resolution of the Sandiganbayan in Crim. Case No. 26914 are AFFIRMED.
SO ORDERED.

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