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Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 153875 August 16, 2006
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
ROLANDO DAGANI y REYES and OTELLO SANTIANO Y LEONIDA, Accused-Appellants.
DECISION
AUSTRIA-MARTINEZ, J.:
For review before the Court is the Decision dated June 20, 20021 of the Court of Appeals (CA)
which affirmed the Decision of the Regional Trial Court of the City of Manila, Branch 12 (RTC),
dated February 18, 1993, in Criminal Case No. 89-77467, finding the accused-appellants Otello
Santiano y Leonida (Santiano) and Rolando Dagani y Reyes (Dagani) guilty of the crime of
Murder.
The accusatory portion of the Information reads:
That on or about September 11, 1989, in the City of Manila, Philippines, the said accused
conspiring and confederating together and mutually helping each other did then and there,
willfully, unlawfully and feloniously, with intent to kill, evident premeditation and treachery,
attack, assault and use of personal violence upon one ERNESTO JAVIER Y FELIX by then and
there shooting him with a .38 caliber revolver, thereby inflicting upon the said ERNESTO
JAVIER Y FELIX mortal gunshot wounds which were the direct and immediate cause of his
death thereafter.
CONTRARY TO LAW.2
Upon arraignment, the appellants pleaded not guilty. Trial ensued where the prosecution
adduced evidence to establish the following:
At about 4:45 in the afternoon of September 11, 1989, a group composed of Ernesto Javier
(Javier), Lincoln Miran (Miran), and two other individuals had been drinking at the canteen
located inside the compound of the Philippine National Railways (PNR) along C.M. Recto
Avenue, Tondo, Manila. All of a sudden, appellants, who were security officers of the PNR and
covered by the Civil Service Rules and Regulations, entered the canteen and approached the
group. Appellant Dagani shoved Miran, causing the latter to fall from his chair. Dagani then held
Javier while Santiano shot Javier twice at his left side, killing the latter.
The defense proceeded to prove their version of the facts:
Appellants testified that they were ordered by their desk officer to investigate a commotion at
the canteen. Upon reaching the place, Santiano ordered his co-accused, Dagani, to enter, while
the former waited outside.
Dagani approached Javier who had been striking a bottle of beer on the table. Javier then pulled
out a .22 caliber revolver and attempted to fire at Dagani, but the gun failed to go off. Then
suddenly, while outside the canteen, Santiano heard gunfire and, from his vantage point, he
saw Javier and Dagani grappling for a .22 caliber gun which belonged to Javier. During the
course of the struggle, the gun went off, forcing Santiano to fire a warning shot. He heard
Javiers gun fire again, so he decided to rush into the canteen. Santiano then shot Javier from a
distance of less than four meters.
Appellants invoked the justifying circumstances of self-defense and lawful performance of
official duty as PNR security officers. They also argued that the prosecution failed to establish
treachery and conspiracy.
The RTC rendered its Decision, the dispositive portion of which reads:
WHEREFORE, finding both accused Otello Santiano y Leonida and Rolando Dagani y Reyes
guilty beyond reasonable doubt of the crime of Murder defined and punished under Art. 248,
RPC, with the presence of the mitigating circumstance of voluntary surrender and granting them
the benefit of [the] Indeterminate Sentence Law, both accused are hereby sentenced to each
suffer an Indeterminate prison term of TEN (10) YEARS and ONE (1) DAY of prision mayor as
minimum, to EIGHTEEN (18) YEARS and ONE (1) DAY of reclusion temporal x x x.
Both accused are hereby ordered to indemnify the heirs of the victim the sum of P50,000.00 as
death indemnity, the sum of P31,845.00 as funeral and burial expenses, the sum of
P30,000.00 as and for [sic] attorneys fees and the further sum of P1,000.00 per appearance of
counsel.
Both accused shall be credited with the full extent of their preventive imprisonment. Both
accused are hereby committed to the Director, National Penitentiary, Muntinlupa, Metro Manila
for service of Sentence.
SO ORDERED.3
In brief, the RTC held that appellants failed to prove that Javier attempted to squeeze the trigger
of the .22 caliber gun when he pointed it at Dagani; that during the course of the struggle for the
possession of the .22 caliber gun, the danger to the life of the accused ceased to be imminent;
that in grappling for the weapon, Dagani "controlled" the hands of Javier and pushed them away
from his body; that the appellants failed to produce the two empty shells as physical evidence of
the gunfire allegedly caused by Javier; that no points of entry or bullet markings on the walls of
the canteen were shown; that, in light of these findings, no unlawful aggression was present on
the part of the victim; that the appellants failed to prove that they were on official duty at the time
of the incidence; that, since it was not established that Javier actually fired his gun, the injury
inflicted upon him cannot be regarded as a necessary consequence of the due performance of
an official duty; that the appellants were acting in conspiracy; that the qualifying circumstance of
treachery attended the killing, considering that Javier had been shot while his hands were being
held by Dagani and as his body was out of balance and about to fall; and that the mitigating
circumstance of voluntary surrender should be appreciated in favor of the appellants.
The appellants appealed to the CA and assigned the following errors:
I
THE LOWER COURT GRAVELY ERRED IN NOT APPRECIATING SELF DEFENSE ON THE
PART OF THE ACCUSED.
II
THE LOWER COURT ERRED WHEN IT FAILED TO CONSIDER THE FACT THAT THE
ACCUSED-APPELLANTS WERE IN LAWFUL PERFORMANCE OF AN OFFICIAL DUTY.
III
THE LOWER COURT GRAVELY AND SERIOUSLY ERRED IN RULING THAT THERE WAS
CONSPIRACY.
IV
THE LOWER COURT GRAVELY ERRED IN FINDING THAT THE PROSECUTION WAS ABLE
TO ESTABLISH BEYOND REASONABLE DOUBT THAT THE ACCUSED ARE GUILTY OF
MURDER.4
The CA rendered its Decision, the dispositive portion of which states:
WHEREFORE, the appealed judgment of conviction is MODIFIED. Appellants are hereby
sentenced to reclusion perpetua. The award for attorneys fees and appearance fees for
counsel are hereby deleted. In all the other aspects, the appealed decision is maintained.
Let the entire records of the case be elevated to the Supreme Court for the mandated review.
SO ORDERED.5
The CA affirmed the findings of fact as well as the salient portions of the RTC Decision, but
deleted the award of attorneys fees and the per appearance fees of counsel since, the
CA reasoned, the instant case is criminal in nature which is under the control of the public
prosecutor, and, additionally, the RTC failed to justify this award in the body of its Decision. And
last, the CA found that the RTC erroneously applied the Indeterminate Sentence Law since the
penalty for Murder, at the time of the incident, was reclusion perpetua which is an indivisible
penalty to be imposed in its entirety, regardless of the attending mitigating circumstance of
voluntary surrender.
Appellants are now before this Court submitting for resolution the same matters argued before
the CA. Through their Manifestation dated February 11, 2003,6 appellants prayed to dispense
with the filing of additional briefs.
As of date, the records show that despite the efforts exerted by the surety and the responsible
law officers to locate the appellants, the latter could not be found and have jumped bail.7
The appeal is partly meritorious.
Appellants argue that the courts a quo misappreciated the facts and erred in finding that there
was no unlawful aggression on the part of the victim. They insist that the victim, Javier, had
been armed with a revolver at the time he was struggling with appellant Dagani; that the former
"could have easily killed the latter;" that, given the fact that Javier had been drinking, "it is quite
probable for Javier to act harshly and aggressively towards
peace officers such as the accused;"8 and that Javier actually fired three shots from his .22
caliber gun.9
We are not convinced.
When self-defense is invoked, the burden of evidence shifts to the accused to show that the
killing was legally justified. Having owned the killing of the victim, the accused should be able to
prove to the satisfaction of the Court the elements of self-defense in order to avail of this
extenuating circumstance. He must discharge this burden by clear and convincing evidence.
When successful, an otherwise felonious deed would be excused, mainly predicated on the lack
of criminal intent of the accused. Self-defense requires that there be (1) an unlawful aggression
by the person injured or killed by the offender, (2) reasonable necessity of the means employed
to prevent or repel that unlawful aggression, and (3) lack of sufficient provocation on the part of
the person defending himself. All these conditions must concur.10
Unlawful aggression, a primordial element of self-defense, would presuppose an actual, sudden
and unexpected attack or imminent danger on the life and limb of a person not a mere
threatening or intimidating attitude11 but most importantly, at the time the defensive action was
taken against the aggressor.12 To invoke self-defense successfully, there must have been an
unlawful and unprovoked attack that endangered the life of the accused, who was then forced to
inflict severe wounds upon the assailant by employing reasonable means to resist the attack.13
In the instant case, the assertions that it was "quite probable" that Javier, during the course of
the struggle for the firearm, "could have easily killed" the appellants are uncertain and
speculative. There is aggression in contemplation of the law only when the one attacked faces
real and immediate threat to ones life. The peril sought to be avoided must be imminent and
actual, not just speculative.14
To sum up the matter, we quote the findings of the CA:
The defense was unable to prove that there was unlawful aggression on the part of Javier. They
were unable to present evidence that the victim actually fired his gun. No spent shells from the
.22 caliber pistol were found and no bullets were recovered from the scene of the incident.
Javier also tested negative for gunpowder residue. Moreover, the trial court found appellant
Daganis account of the incident to be incredible and self-serving. In sum, the defense
presented a bare claim of self-defense without any proof of the existence of its requisites.15
Even if it were established that Javier fired his gun as the appellants so insist, the imminence of
the danger to their lives had already ceased the moment Dagani held down the victim and
grappled for the gun with the latter. After the victim had been thrown off-balance, there was no
longer any unlawful aggression
that would have necessitated the act of killing.16 When an unlawful aggression that has begun
no longer exists, the one who resorts to self-defense has no right to kill or even to wound the
former aggressor.17 When Javier had been caught in the struggle for the possession of the gun
with appellant Dagani, the grave peril envisaged by appellant Santiano, which impelled him to
fire at the victim, had then ceased to a reasonable extent,18 and undoubtedly, Santiano went
beyond the call of self-preservation when he proceeded to inflict the excessive and fatal injuries
on Javier, even when the alleged unlawful aggression had already ceased.19
The second element of self-defense demands that the means employed to neutralize the
unlawful aggression are reasonable and necessary. It is settled that reasonable necessity of the
means employed does not imply material commensurability between the means of attack and
defense. What the law requires is rational equivalence.20 The circumstances in their entirety
which surround the grappling of the firearm by Dagani and Javier, such as the nature and
number of gunshot wounds sustained by the victim21 which amounted to two fatal wounds,22 that
Dagani was able to restrain the hands of Javier and push
them away from his body,23 that Dagani was larger than Javier and had finished Special
Weapons and Tactics (SWAT) hand-to-
hand combat training,24 and Javier, as admitted by the appellants, was inebriated at the time of
the incident,25 do not justify appellant Santianos act of fatally shooting the victim twice.26
All things considered, the appellants plea of self-defense is not corroborated by competent
evidence. The plea of self-defense cannot be justifiably entertained where it is not only
uncorroborated by any separate competent evidence but is in itself extremely doubtful.27
Whether the accused acted in self-defense is a question of fact. Like alibi, the affirmative
defense of self-defense is inherently weak because, as experience has demonstrated, it is easy
to fabricate and difficult to disprove.28 This Court, therefore, finds no reversible error on the part
of the courts a quo in rejecting the claim of self-defense.
Appellants set up the defense that they were in the lawful performance of their official duties.
They specifically aver that they had been ordered by their desk officer to proceed to the canteen
in response to a telephone call stating that there was a group "creating trouble;" that they were
in the call of duty and exercising their functions and responsibilities as members of the PNR
Civil Security Office to preserve peace and order and
protect the lives and property in the PNR Compound;29 and that, invoking jurisprudence, as
security officers in the performance of duty, like the police, they must stand their ground and
overcome the opponent, and the force that may be exerted must differ from that which ordinarily
may be offered in self-defense.30
Article 11 of the Revised Penal Code provides that a person who acts in the fulfillment of a duty
or in the lawful exercise of a right or office does not incur any criminal liability. Two requisites
must concur before this defense can prosper: 1) the accused must have acted in the
performance of a duty or in the lawful exercise of a right or office; and 2) the injury caused or the
offense committed should have been the necessary consequence of such lawful exercise.31
These requisites are absent in the instant case.
As found by the CA:
The defense failed to prove that the security officers were in fact on duty at the time they were
at the canteen. The trial court gave weight to the fact that the appellants were unable to submit
their daily time records to show that they were on duty at the time. Appellants assertion that
they were ordered to go on 24-hour duty was belied by PNR Security Investigator Rolando
Marinays testimony that PNR security officers work in two 12-hour shifts, from 7:00 a.m. to 7:00
p.m. and from 7:00 p.m. to 7:00 a.m.
Moreover, since it was not established that Javier fired his gun, the injury inflicted upon him
cannot be regarded as a necessary consequence of appellants due performance of an official
duty.32
As stated, considering that the imminent or actual danger to the life of the appellants had been
neutralized when Dagani grappled with Javier and restrained his hands; that Javier had been
thrown off-balance; that Dagani had been specially trained for these purposes; and that Javier
had been drinking immediately prior to the scuffle, this Court holds that the fatal injuries that
appellant Santiano inflicted on the victim cannot be deemed to be necessary consequences of
the performance of his duty as a PNR security officer.33 While it is recognized that police officers
if indeed the appellants can be likened to them must stand their ground and overwhelm their
opponents, in People v. Ulep,34 this Court counseled:
The right to kill an offender is not absolute, and may be used only as a last resort, and under
circumstances indicating that the offender cannot otherwise be taken without bloodshed. The
law does not clothe police officers with authority to arbitrarily judge the necessity to kill. It may
be true that police officers sometimes find themselves in a dilemma when pressured by a
situation where an immediate and decisive, but legal, action is needed. However, it must be
stressed that the judgment and discretion of police officers in the performance of their duties
must be exercised neither capriciously nor oppressively, but within reasonable limits. In the
absence of a clear and legal provision to the contrary, they must act in conformity with the
dictates of a sound discretion, and within the spirit and purpose of the law. We cannot
countenance trigger-happy law enforcement officers who indiscriminately employ force and
violence upon the persons they are apprehending. They must always bear in mind that although
they are dealing with criminal elements against whom society must be protected, these
criminals are also human beings with human rights.35
But this Court cannot agree with the findings of the courts a quo that the appellants were in
conspiracy.
The RTC simply held:
The Information cited conspiracy of the accused. Since it can also be committed thru
simultaneous/concerted action and considering that Javier was shot by Santiano while being
held by Dagani, under jurisprudence, conspiracy is present.36
The tenor of the factual findings of the CA is equally unsatisfactory:
Moreover, the facts show that Javier was shot by appellant Santiano as he was being subdued
by appellant Dagani. The trial court held that the manner of the attack was indicative of a joint
purpose and design by the appellants.37
Courts must judge the guilt or innocence of the accused based on facts and not on mere
conjectures, presumptions, or suspicions.38 Other than the plain fact that the victim had been
shot by one of the accused while being held by a co-accused, there is no other evidence that
the appellants were animated by the same purpose or were moved by a previous common
accord. It follows that the liability of the accused must be determined on an individual basis.
While no formal agreement is necessary to establish conspiracy because conspiracy may be
inferred from the circumstances attending the commission of the crime, yet, conspiracy must be
established by clear and convincing evidence.39
This Court has held that even if all the malefactors joined in the killing, such circumstance alone
does not satisfy the requirement of conspiracy because the rule is that
neither joint nor simultaneous action is per se sufficient proof of conspiracy. Conspiracy must be
shown to exist
as clearly and convincingly as the commission of the offense itself.40 Thus, even assuming that
Javier was simultaneously attacked, this does not prove conspiracy. No evidence was
presented to show that the appellants planned to kill Javier or that Daganis overt acts facilitated
that alleged plan. The prosecution did not establish that the act of Dagani in trying to wrestle the
gun from Javier and in the process, held the latters hands, was for the purpose of enabling
Santiano to shoot at Javier. The prosecution had the burden to show Daganis intentional
participation to the furtherance of a common design and purpose41 or that his action was all part
of a scheme to kill Javier. That Dagani did not expect Santiano to shoot the victim is established
when Santiano testified that Dagani "seem[ed] to be shocked, he was standing and looking at
the victim" as Javier gradually fell to the ground.42 And since Daganis conviction can only be
sustained if the crime had been carried out through a conspiracy duly proven, in view of the
failure of the prosecution to discharge that burden, this Court is constrained to acquit him.
And this Court cannot say that treachery attended the attack. The RTC declared:
[T]he Court believes that Javier was shot while his body was out-balanced and about to fall to
the right side and while his hands were being held by Dagani. Javier, therefore, was shot at
when he has no means to defend himself, hence, the killing was attended by the qualifying
circumstance of treachery.43
which the CA affirmed as follows:
The findings of the court a quo clearly showed that Javier was being held down and could not
effectively use his weapon. As such, the trial court held that Javier could not be considered to
be an armed man as he was being held down and was virtually helpless.
It has been held that when an assault is made with a deadly weapon upon an unarmed and
unsuspecting victim who [was] given no immediate provocation for the attack and under
conditions which made it impossible for him to evade the attack, flee or make [a] defense, the
act is properly qualified as treachery, and the homicide resulting therefrom is classified as
murder.44 x x x
Treachery under par.16 of Article 14 of the Revised Penal Code is defined as the deliberate
employment of means, methods or forms in the execution of a crime against persons which tend
directly and specially to insure its execution, without risk to the offender arising from the defense
which the intended victim might raise. Treachery is present when two conditions concur,
namely: (1) that the means, methods and forms of execution employed gave the person
attacked no opportunity to defend himself or to retaliate; and (2) that such means, methods and
forms of execution were deliberately and consciously adopted by the accused without danger to
his person.45
This Court has held that the suddenness of the attack, the infliction of the wound from behind
the victim, the vulnerable position of the victim at the time the attack was made, or the fact that
the victim was unarmed, do not by themselves render the
attack as treacherous.46 This is of particular significance in a case of an instantaneous attack
made by the accused whereby he gained an advantageous position over the victim when the
latter accidentally fell and was rendered defenseless.47 The means employed for the
commission of the crime or the mode of attack must be shown to have been consciously or
deliberately adopted by the accused to insure the consummation of the crime and at the same
time eliminate or reduce the risk of retaliation from the intended victim.48 For the rules on
treachery to apply, the sudden attack must have been preconceived by the accused,
unexpected by the victim, and without provocation on the part of the latter.49 Treachery is never
presumed. Like the rules on conspiracy, it is required that the manner of attack must be shown
to have been attended by treachery as conclusively as the crime itself.50
The prosecution failed to convincingly prove that the assault by the appellants had been
deliberately adopted as a mode of attack intended to insure the killing of Javier and without the
latter having the opportunity to defend himself. Other than the bare fact that Santiano shot
Javier while the latter had been struggling with Dagani over the possession of the .22 caliber
gun, no other fact had been adduced to show that the appellants consciously planned or
predetermined the methods to insure the commission of the crime, nor had the risk of the victim
to
retaliate been eliminated during the course of the struggle over the weapon, as the latter,
though struggling, had not been
completely subdued. As already stated, this Court must emphasize that the mere suddenness of
the attack, or the vulnerable position of the victim at the time of the attack, or yet even the fact
that the victim was unarmed, do not by themselves make the attack treacherous.51 It must be
shown beyond reasonable doubt that the means employed gave the victim no opportunity to
defend himself or retaliate, and that such means had been deliberately or consciously adopted
without danger to the life of the accused.52
For these reasons, the Court is inclined to look upon the helpless position of Javier as merely
incidental to the attack, and that the decision to shoot Javier was made in an instant.53
Considering the rule that treachery cannot be inferred but must be proved as fully and
convincingly as the crime itself, any doubt as to its existence must be resolved in favor of
Santiano. Accordingly, for failure of the prosecution to prove treachery to qualify the killing to
Murder, appellant Santiano may only be convicted of Homicide.54 The penalty, therefore, under
Article 249 of the Revised Penal Code, as amended, is reclusion temporal.
The Office of the Solicitor General is correct in that the courts a quo failed to consider the
aggravating circumstance of
taking advantage of official position under Article 14 (1) of the Revised Penal Code, since the
accused, a PNR security officer
covered by the Civil Service, committed the crime with the aid of a gun he had been authorized
to carry as such.55 Considering that the mitigating circumstance of voluntary surrender, as duly
appreciated by the courts a quo, shall be offset against the aggravating circumstance of taking
advantage of official position, the penalty should be imposed in its medium period, pursuant to
Article 64 (4) of the aforesaid Code.
Applying the Indeterminate Sentence Law, the sentence of appellant Santiano will consist of a
minimum that is anywhere within the full range of prision mayor, and a maximum which is
anywhere within reclusion temporal in its medium period. This Court hereby fixes it to be from
eight (8) years and one (1) day of prision mayor as minimum, to fourteen (14) years, eight (8)
months, and one (1) day of reclusion temporal, as maximum.
As to the award of damages, prevailing jurisprudence entitles the heirs of the deceased to the
amount of P50,000.00 as civil indemnity for the death of the victim without need of any evidence
or proof of damages.56
The CA erred in deleting the attorneys fees and per appearance fees for lack of factual basis.
Although the CA is correct in noting that the RTC failed to justify these awards in the body of its
Decision, this appeal opens the entire case for review and, accordingly, the records show that
the foregoing
amounts had been stipulated by the parties,57 thereby dispensing with the need to prove the
same.58
As to moral damages, however, the widow of the victim, Erlinda Javier, is not entitled to the
same. She did not testify on any mental anguish or emotional distress which she suffered as a
result of her husbands death. No other heirs of Javier testified in the same manner. 59
Inasmuch as the aggravating circumstance of taking advantage of official position attended the
killing, the Court awards exemplary damages in the amount of P25,000.00 in accordance with
Articles 2230 and 2234 of the Civil Code and prevailing jurisprudence.60
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 15304 dated June 20,
2002 is MODIFIED. Appellant Otello Santiano y Leonida is found GUILTY beyond reasonable
doubt of Homicide and is sentenced to suffer the penalty of an indeterminate sentence from
eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8)
months, and one (1) day of reclusion temporal as maximum. Appellant Santiano is further
ordered to pay the heirs of the victim the amounts of P50,000.00 as death indemnity,
P31,845.00 as funeral and burial expenses, P25,000.00 as exemplary damages, P30,000.00 as
attorneys fees and P1,000.00
per appearance of counsel. Appellant Santiano shall be credited with the full extent of his
preventive imprisonment.
Appellant Rolando Dagani y Reyes is hereby ACQUITTED.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
CONSUELO YNARES-SANTIAGO, ROMEO J. CALLEJO, SR.
Associate Justice Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions
in the above Decision were reached in consultation before the case was assigned to the writer
of the opinion of the Courts Division.
ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes
1
Penned by Associate Justice Juan Q. Enriquez, Jr., with Associate Justices Eugenio S.
Labitoria and Mariano C. Del Castillo, concurring, CA rollo, pp. 203-210.
2
Records, p. 1.
3
CA rollo, pp. 88-89.
4
Id. at 121.
5
Id. at 209.
6
Rollo, pp. 6-7.
7
Id. at 3-87.
8
CA rollo, pp. 121-122.
9
Id. at 123-124.
10
People v. Dela Cruz, 400 Phil. 872, 878 (2000); Cabuslay v. People, G.R. No. 129875,
September 30, 2005, 471 SCRA 241, 253.
11
People v. Dela Cruz, supra note 10; Toledo v. People, G.R. No. 158057, September
24, 2004, 439 SCRA 94, 109; People v. Escarlos, 457 Phil. 580, 596 (2003).
12
People v. Dela Cruz, supra note 10.
13
People v. Escarlos, supra note 11, at 595; People v. Sarmiento, G.R. No. 126145,
April 30, 2001, 357 SCRA 447, 457.
14
People v. Escarlos, supra note 11, at 596; People v. Damitan, 423 Phil. 113, 123
(2001).
15
CA rollo, p. 206.
16
People v. Escarlos, supra note 11, at 597; People v. Calabroso, 394 Phil. 658, 670
(2000); People v. Maalat, 341 Phil. 200, 206 (1997).
17
People v. Escarlos, supra note 11, at 597; People v. Rabanal, 402 Phil. 709, 715
(2001).
18
People v. Escarlos, supra note 11, at 597; People v. Geneblazo, 414 Phil. 103, 110
(2001).
19
People v. Escarlos, id.
20
Cabuslay v. People, supra note 10, at 262.
21
See Senoja v. People, G.R. No. 160341, October 19, 2004, 440 SCRA 695, 708;
People v. Escarlos, supra note 11, at 597; People v. Ubaldo, 419 Phil. 718, 730 (2001);
People v. Basadre, G.R. No. 131851, February 22, 2001, 352 SCRA 573, 585; People v.
More, 378 Phil. 1153, 1161 (1999); People v. Real, 367 Phil. 524, 535-536 (1999).
22
CA rollo, p. 51.
23
Id. at 75.
24
Id.
25
Id. at 120.
26
See People v. Escarlos, supra note 11; People v. Dela Cruz, supra note 10, at 879;
People v. Babor, 330 Phil. 923, 930-931 (1996).
27
Toledo v. People, supra note 11, at 110.
28
Senoja v. People, supra note 21, at 703; People v. Noay, 357 Phil. 295, 308 (1998).
29
CA rollo, p. 124.
30
Id. at 125, citing, e.g., People v. Mojica, 42 Phil. 784.
31
People v. Catbagan, G.R. Nos. 149430-32, February 23, 2004, 423 SCRA 535, 553;
People v. Peralta, 403 Phil. 72, 89 (2001); People v. Ulep, 395 Phil. 78, 87 (2000);
People v. Belbes, 389 Phil. 500, 509 (2000).
32
CA rollo, p. 207.
33
See People v. Catbagan, supra note 31, at 554.
34
Supra note 31.
35
Id. at 92.
36
CA rollo, p. 88.
37
Id. at 207-208.
38
See People v. Legaspi, 387 Phil. 108 (2000).
39
Crisostomo v. Sandiganbayan, G.R. No. 152398, April 14, 2005, 456 SCRA 45, 73;
People v. Agda, 197 Phil. 306, 314 (1982).
40
Crisostomo v. Sandiganbayan, supra note 39, at 73-74; People v. Dorico, 153 Phil.
458, 475 (1973).
41
Crisostomo v. Sandiganbayan, supra note 39, at 74.
42
TSN, Hearing of June 18, 1990, p. 10.
43
CA rollo, pp. 87-88.
44
Id. at 208.
45
People v. Caratao, 451 Phil. 588, 606-607 (2003); People v. Gonzalez, Jr., 411 Phil.
893, 915 (2001); People v. Cabodoc, 331 Phil. 491, 510 (1996); People v. Malabago,
333 Phil. 20, 34 (1996).
46
People v. Gonzalez, Jr., supra.
47
Id.; People v. Cadag, 112 Phil. 314, 319 (1961); People v. Ardisa, 154 Phil. 229, 243
(1974); People v. Genial, G.R. No. 105692, December 7, 1993, 228 SCRA 283, 291.
48
People v. Gonzalez, Jr., supra note 45, at 915-916; People v. Caratao, supra note 45,
at 607; Luces v. People, 443 Phil. 636, 646 (2003).
49
People v. Gonzalez, Jr., supra note 45, at 916; Sison v. People, 320 Phil. 112, 135
(1995); People v. Abapo, G.R. Nos. 93632-33, December 28, 1994, 239 SCRA 469,
479.
50
People v. Gonzalez, Jr., supra note 45, at 917; People v. Manalo, G.R. No. L-55177,
February 27, 1987, 148 SCRA 98, 108.
51
People v. Gonzalez, Jr., supra note 45.
52
People v. Caratao, supra note 45, at 607; People v. Gonzalez, Jr., supra note 45;
People v. Cabodoc, supra note 45, at 510-511; People v. Malabago, supra note 45.
53
See People v. Ulep, supra note 31, at 88.
54
People v. Caratao, supra note 45, at 608; People v. Fernandez, 434 Phil. 224, 239
(2002).
55
See People v. Tabion, G.R. No. L-32629, October 23, 1979, 93 SCRA 566, 572;
People v. Madrid, 88 Phil. 1, 15 (1951); Antonio L. Gregorio, Fundamentals of Criminal
Law Review 114 (1997).
56
People v. Malinao, G.R. No. 128148, February 16, 2004, 423 SCRA 34, 53; People v.
Solamillo, 452 Phil. 261, 281 (2003).
57
TSN, April 20, 1990, pp. 1-2; TSN, April 30, 1990, pp. 1-2; Exhibit "X;" RTC Decision,
CA rollo, p. 59; Formal Offer of Evidence of the Prosecution dated April 26, 1990, p. 6.
58
Moreover, under Article 2208 of the Civil Code, attorneys fees may be recovered
when exemplary damages have been awarded. See, e.g., Nueva Espaa v. People,
G.R. No. 163351, June 21, 2005, 460 SCRA 547, 560.
59
People v. Ibaez, 455 Phil. 133, 166-167 (2003).
60
Nueva Espaa v. People, supra note 58, at 558; People v. Malinao, supra note 56, at
55.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 149152 February 2, 2007
RUFINO S. MAMANGUN, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
GARCIA, J.:
In this petition for review under Rule 45 of the Rules of Court, petitioner Rufino Mamangun y
Silverio seeks the reversal of the Decision1 dated January 19, 2001 (promulgated on February
13, 2001) of the Sandiganbayan in its Criminal Case No. 21131, convicting him of the crime of
Homicide.
The factual backdrop:
On September 12, 1994, herein petitioner, then a police officer, was charged before the
Sandiganbayan with the crime of Murder, allegedly committed, per the indicting Information,2
docketed as Criminal Case No. 21131, as follows:
That on or about the 31st day of July 1992, in the Municipality of Meycauyan, (sic) Province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Rufino
S. Mamangun, a public officer, being then a Police Officer (PO2), duly appointed as such and
acting in relation to his office, armed with a gun, with intent to kill, did then and there willfully,
unlawfully and feloniously, with treachery, evident premeditation and abuse of superior strength,
attack, assault and shoot one Gener M. Contreras with the said gun, hitting the latter on his
body, thereby inflicting (sic) him serious physical injuries which directly cause (sic) his death.
CONTRARY TO LAW.
On arraignment, petitioner, as accused below, duly assisted by a counsel de oficio, entered a
plea of "Not Guilty."
In the ensuing trial, the prosecution presented in evidence the testimonies of Crisanto Ayson
(Ayson), an alleged eyewitness, and Dr. Benito Caballero, then the designated Medico-Legal
Officer of Bulacan who performed an autopsy on the cadaver of the victim.
For its part, the defense adduced in evidence the testimonies of the accused himself, Rufino
Mamangun, his co-policemen at the Philippine National Police (PNP), namely, PO2 Carlito
Cruz, PO4 Hobert O. Diaz and Police Investigator SPO-1 Hernando B. Banez, all assigned at
the Meycauayan Police Station; and those of Lorenzo S. Abacan and Rogelio Ingco, son and
son-in-law, respectively, of Antonio Abacan, owner of the house on which rooftop the shooting
of the victim took place.
It is not disputed that on July 31, 1992, at about 8:00 in the evening, in Brgy. Calvario,
Meycauayan, Bulacan a certain Liberty Contreras was heard shouting,
"MagnanakawMagnanakaw." Several residents responded and thereupon chased the suspect
who entered the yard of Antonio Abacan and proceeded to the rooftop of Abacans house.
At about 9:00 oclock that same evening, the desk officer of the Meycauayan PNP Police
Station, upon receiving a telephone call that a robbery-holdup was in progress in Brgy. Calvario,
immediately contacted and dispatched to the scene the crew of Patrol Car No. 601 composed of
Team Leader SPO1 Andres Legaspi, with PO2 Eugenio Aminas and herein petitioner PO2
Rufino S. Mamangun; and Patrol Car No. 602 composed of Team Leader PO3 Sandiego San
Gabriel, with PO2 Carlito Cruz and PO2 Hobert Diaz. With the permission of Abacan, petitioner
Mamangun, PO2 Diaz and PO2 Cruz went to the rooftop of the house whereat the suspect was
allegedly taking refuge.
The three policemen, i.e., petitioner, Diaz and Cruz, each armed with a drawn handgun,
searched the rooftop. There, they saw a man whom they thought was the robbery suspect. At
that instance, petitioner Mamangun, who was walking ahead of the group, fired his handgun
once, hitting the man. The man turned out to be Gener Contreras (Contreras) who was not the
robbery suspect.
Contreras died from the gunshot wound. The autopsy conducted by Dr. Benito B. Caballero
yielded the following findings:
The cause of death was "Shock due to massive external and internal hemorrhage due to
multiple gunshot wounds in the left arm side of the thorax, penetrating the left lung and vertebral
column." There were several wounds caused by one (1) bullet.
As shown on the sketch of human body attached to the Certificate of Death, and as testified on
by Dr. Caballero, the bullet entered through the "lower third of the left arm, left side of the thorax
and it penetrated the left lung and vertebral column and that is where the slug was found." From
a laymans appreciation of the sketch, the bullet entered the outer, upper left arm of the victim,
exited through the inner side of the said upper left arm, a little lower than the left armpit and the
slug lodging on the victims back where it was recovered at the vertebral column.3
From the foregoing admitted or undisputed facts, the prosecution and the defense presented
conflicting versions as to how the fatal shooting of Contreras by petitioner Mamangun actually
happened.
According to Ayson, the lone eyewitness for the prosecution, he accompanied the three
policemen (Mamangun, Diaz and Cruz) to the rooftop of Abacans house. He was following
petitioner Mamangun who was ahead of the group. They passed through the second-floor door
of the house to the rooftop. The roof was lighted by an incandescent bulb from an adjacent
house. He was beside Mamangun when they saw, some four to five arms-length away, a man
whom he (witness) recognized as Gener Contreras. Mamangun pointed his .45 cal. pistol at the
man, who instantly exclaimed, "Hindi ako, hindi ako!," to which Mamangun replied, "Anong hindi
ako?" Before he (Ayson) could say anything, Mamangun fired his gun, hitting the man who
turned out to be Contreras. He (witness) approached the victim who was then lying on his left
side unconscious. He brought down the victim and they rushed him to the hospital where he
died at about 10:00 oclock that same evening.
The defense has its own account of what purportedly actually transpired.1awphi1.net
PO2 Mamangun, along with PO2 Cruz and PO2Diaz, denied the presence of Ayson at the
rooftop during the shooting incident. Corroborating one another, the three testified that they
were the only ones at the scene of the shooting, and that it was dark. They claimed that each of
them, with Mamangun on the lead, went on separate directions around a water tank. As they
met each other at the other side of the tank, PO2 Cruz pointed to a person crouching at the
edge of the roof of the garage. Thinking that the person was the suspect they were looking for,
Mamangun chased said person. They announced that they were police officers but the person
continued to run in a crouching position until Mamangun caught up with him and shouted,
"Pulis. Tigil," whereupon the person suddenly stopped, turned around, faced Mamangun, and
raised a stainless steel pipe towards the latters head but Mamangun was able to evade the
attack. This prompted Mamangun to shoot the person on the left arm. All three claimed that it
was only at this point that PO2 Cruz and Diaz approached Contreras who told them, "Hindi ako.
Hindi ako." Mamangun went near Contreras and asked, "Why did you go to the rooftop? You
know there are policemen here." Contreras was thereafter brought to the hospital where he
died. After the shooting incident, Mamangun reported the same to the desk officer, POI
Filomeno de Luna, who advised him to remain in the police station. De Luna directed Police
Investigator Hernando Banez to investigate the incident. That same evening, Investigator Banez
went to the place where the shooting happened. Banez allegedly found a steel pipe about three
(3) feet long on the depressed portion of the roof.
On January 19, 2001, after due proceedings, the Sandiganbayan came out with its decision4
finding the petitioner guilty beyond reasonable doubt of only the crime of Homicide. In so
finding, the Sandiganbayan did not appreciate the presence of the aggravating circumstances of
treachery, evident premeditation and abuse of superior strength to qualify the killing to Murder.
But even as the said court rejected the petitioners claim that the shooting was justified by self-
defense, it nonetheless ruled that the crime of Homicide was attended by an incomplete
justifying circumstance of the petitioner having acted in the performance of his duty as a
policeman, and also appreciated in his favor the generic mitigating circumstance of voluntary
surrender. Dispositively, the decision reads:
WHEREFORE, the accused, RUFINO S. MAMANGUN, is hereby found GUILTY beyond
reasonable doubt of the crime of Homicide, defined and penalized under Article 249, Revised
Penal Code, and taking into account the attendance of one (1) privileged mitigation (sic)
circumstance, one generic circumstance and no aggravating circumstance, he is hereby
sentenced under the Indeterminate Sentence Law, to suffer the penalty of imprisonment of from
Three (3) Years and Three (3) Months of prision correctional as minimum, to Seven (7) years of
prision mayor, as maximum, to indemnify the heirs (parents) of Gener Contreras in the total
amount of P352,025.00, and to past the costs.
SO ORDERED.
Unable to accept the judgment of conviction, petitioner is now with this Court via the present
recourse alleging that the Sandiganbayan committed reversible error in failing to apply
paragraph 5, Article 11, of the Revised Penal Code, which would have absolved him from
criminal liability on the basis of his submission that the shooting in question was done in the
performance of a duty or in the lawful exercise of a right or office.
First off, petitioner insists that the shooting, which ultimately caused the demise of Contreras,
was justified because he was repelling Contreras unlawful attack on his person, as Contreras
was then about to strike him on the head with a steel pipe.
We are not persuaded.
Well-settled is the rule that factual findings of the Sandiganbayan are conclusive upon the Court
except where: (1) the conclusion is a finding grounded entirely on speculations, surmises and
conjectures; (2) the inference made is manifestly mistaken; (3) there is grave abuse of
discretion; (4) the judgment is based on misapprehension of facts and the findings of fact are
premised on the absence of evidence and are contradicted by the evidence on record.5 None of
these exceptions obtains in this case.
Having admitted6 the fatal shooting of Contreras on the night of July 31, 1992, petitioner is
charged with the burden of adducing convincing evidence to show that the killing was done in
the fulfillment of his duty as a policeman.
The justifying circumstance of fulfillment of duty under paragraph 5, Article II, of the Revised
Penal Code may be invoked only after the defense successfully proves that: (1) the accused
acted in the performance of a duty; and (2) the injury inflicted or offense committed is the
necessary consequence of the due performance or lawful exercise of such duty.7
Concededly, the first requisite is present in this case. Petitioner, a police officer, was responding
to a robbery-holdup incident. His presence at the situs of the crime was in accordance with the
performance of his duty. However, proof that the shooting and ultimate death of Contreras was
a necessary consequence of the due performance of his duty as a policeman is essential to
exempt him from criminal liability.
As we see it, petitioners posturing that he shot Contreras because the latter tried to strike him
with a steel pipe was a mere afterthought to exempt him from criminal liability.
We see no plausible basis to depart from the Sandiganbayans findings that there was no
reason for the petitioner to shoot Contreras. The latter was unarmed and had already uttered,
"Hindi po ako, Hindi po ako" before the petitioner fatally shot him on the left arm. Prosecution
witness Ayson, who was then behind the petitioner when the latter shot Contreras, testified that
to the victims utterances, the petitioner even responded, "Anong hindi ako," and immediately
shot Contreras.8 As correctly observed by the Sandiganbayan:
Besides being self-serving (with respect to the accused) and biased (with respect to his co-
policemen-witnesses), We find (1) the claim of the accused and his co-policemen-witnesses that
the victim (Contreras) attacked the said accused and (2) their seemingly "positive" identification
of the stainless steel pipe (more of a rod) as his weapon, to be of doubtful credibility, for the
following reasons:
(1) We have no doubt that, as claimed by PO2 Carlito Cruz and PO2 Hobert Diaz, the
three policemen appropriately identified themselves as police officers as they started
chasing the man they saw "crouching," and, as claimed by accused PO2 Rufino
Mamangun, that, as he was about to catch up with said man, he shouted, "Pulis! Tigil!"
With all these introductions and forewarnings, it is utterly incredible and contrary to
human experience that, that man, later identified to be Gener Contreras and admittedly
not the person they were looking for, purportedly armed only with a stainless steel "lead"
pipe (more of a rod) would suddenly stop, turn around and attack one of the three
policemen who were chasing him, one after the other, with drawn guns.
(2) When the victim (Gener Contreras) fell down after being shot by accused PO2
Mamangun, and as the latter went near the fallen victim, said accused asked, "Why did
you go to the rooftop. You know there are policemen here." He admits that he did not
ask the victim, "Why did you try to hit me, if you are not the one?" This admission clearly
belies the claim of the police-witnesses that Gener Contreras attacked the accused
policeman with an iron pipe when he was shot, for the accused should have asked the
latter question.
(3) The location of the entry of the bullet fired by accused Mamangun which is at the
outer left arm at about the bicep of the victim and its trajectory as it penetrated his body
hitting his vital organs along the way belies the claim of the accused that the victim was
facing him and had just missed his head with an iron pipe, as instead the victim must
have instinctively shielded his body with his left arm.
Moreover, petitioners pretense that Contreras struck him with a steel pipe is intriguing. As it is,
petitioner did not report the same to Police Investigator Banez when he reported back to the
police station after the shooting incident. It was only when a lead pipe was recovered from the
scene and brought to the police station that petitioner conveniently remembered Contreras
trying to hit him with a pipe. Such a vital information could not have escaped the petitioners
mind. We are thus inclined to believe that the alleged actuation of Contreras, which could have
justified petitioners shooting him, was nothing but a concocted story to evade criminal liability.
Indeed, knowing that he shot Contreras, the least that the petitioner should have done was to
bring with him to the police station the very pipe with which Contreras tried to attack him. As
borne by the evidence, however, it was only after a police investigator referred to the scene that
the lead pipe surfaced.
Petitioner would likewise argue that the testimony of prosecution witness Ayson was incredible
and riddled with inconsistencies.
The alleged contradictions cited by the petitioner, i.e. where the victim was shot, where he died,
and as to whether Ayson left his house after the shooting incident, are but minor details which
do not affect Aysons credibility. We have held time and again that few discrepancies and
inconsistencies in the testimony of a witness referring to minor details and not in actuality
touching upon the central fact of the crime, do not impair his credibility. Quite the contrary, such
minor inconsistencies even tend to strengthen credibility because they discount the possibility
that the testimony was rehearsed.9
For sure, the record reveals that Aysons answers to the questions propounded by the defense
counsel are clear and categorical. As to where the victim died, Ayson clarified that the victim
was already at the rooftop even before the arrival of the police officers. As to why he was not
able to warn Mamangun that the victim was his relative, Ayson explained that he was not able to
utter any word because when Contreras said "Hindi ako. Hindi ako," petitioner suddenly fired at
the latter.10 As to the claim that Ayson was also on the roof, record shows that the robbery-
holdup happened at around 8:00 in the evening. Before the policemen arrived, Ayson and
Contreras were already pursuing the robber.11 Ayson also testified that when the victim was
shot by the petitioner, the former fell on his left side unconscious; that he did not leave his
house after the incident because he was afraid that the policemen would detain him.12
Self-defense, whether complete or incomplete, cannot be appreciated as a valid justifying
circumstance in this case. For, from the above admitted, uncontroverted or established facts,
the most important element of unlawful aggression on the part of the victim to justify a claim of
self defense was absent. Lacking this essential and primary element of unlawful aggression,
petitioners plea of self-defense, complete or incomplete, must have to fail.
To be sure, acts in the fulfillment of a duty, without more, do not completely justify the
petitioners firing the fatal gunshot at the victim. True, petitioner, as one of the policemen
responding to a reported robbery then in progress, was performing his duty as a police officer as
well as when he was trying to effect the arrest of the suspected robber and in the process,
fatally shoot said suspect, albeit the wrong man. However, in the absence of the equally
necessary justifying circumstance that the injury or offense committed be the necessary
consequence of the due performance of such duty, there can only be incomplete justification, a
privileged mitigating circumstance under Articles 13 and 69 of the Revised Penal Code.
There can be no quibbling that there was no rational necessity for the killing of Contreras.
Petitioner could have first fired a warning shot before pulling the trigger against Contreras who
was one of the residents chasing the suspected robber.
All told, we find no reversible error committed by the Sandiganbayan in convicting the petitioner
of the crime of Homicide attended by the privileged mitigating circumstance of incomplete
justifying circumstance of having acted in the performance of his duty as a policeman and the
generic mitigating circumstance of voluntary surrender.
IN VIEW WHEREOF, the instant petition is DENIED and the assailed decision of the
Sandiganbayan is AFFIRMED in all respects.
No pronouncement as to costs.
SO ORDERED.
CANCIO C. GARCIA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
Chairperson
ANGELINA SANDOVAL-GUTIERREZ RENATO C. CORONA
Associate Justice Asscociate Justice
ADOLFO S. AZCUNA
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice

Footnotes
1
Penned by Associate Justice Nicodemo T. Ferrer with Associate Justices Narciso S.
Nario and Rodolfo G. Palatao, concurring; Rollo, pp. 25-46.
2
Sandiganbayan Record, Vol. I, p. 1.
3
As culled from the Sandiganbayan decision, Id. at 29.
4
Supra note 1.
5
Resoso v. Sandiganbayan, G.R. No. 124140, November 25, 1999, 319 SCRA 238,
244.
6
TSN, p. 11; Hearing on May 27, 1996.
7
People v. Cawaling, G.R. No. 117970, July 28, 1998, 293 SCRA 267.
8
TSN, pp. 22, 29. Hearing on March 23, 1995.
9
People v. Givera, G.R. No. 132159, January 18, 2001, 349 SCRA 513, 530.
10
TSN, pp. 9-10, March 23, 1996.
11
Ibid at p. 20.
12
Ibid at p. 15.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. Nos. 119660-61 February 13, 2009
PAT. EDGARDO HERRERA y BALTORIBIO and PAT. REDENTOR MARIANO y ANTONIO,
Petitioners,
vs.
HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
AZCUNA, J.:
Petitioners Pat. Edgardo Herrera y Baltoribio and Pat. Redentor Mariano y Antonio, together
with the other accused, Pat. Roberto Barrera and Pat. Rodolfo Alcalde, all members of the
Paraaque Police Station, were charged with two (2) counts of murder, FOR THER KILLING OF
Shi Shu Yang and George Go y Tan, before public respondent Sandiganbayan in Criminal Case
Nos. 16674 and 16675.
The original informations, both dated December 4, 1990, against the petitioners and two other
accused alleged:
In Criminal Case No. 16674:
That on or about the 28th day of December, 1989 in the Municipality of [Paraaque], Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed
accused who were then public officers, being then members of the Paraaque Police Force,
and armed with guns, and conspiring and confederating and mutually helping and aiding one
another, with intent to kill and with treachery and by taking advantage of their public positions as
members of the Paraaque Police Force, then and there willfully, unlawfully and feloniously
shoot one SHI SHU YANG on the different parts of his body, thereby inflicting serious and
mortal wounds upon said victim, which were the direct and immediate cause of his death, to the
damage and prejudice of the heirs of said victim, in such amount as may be awarded to them
under the provision of the Civil Code of the Philippines.
CONTRARY TO LAW.1
In Criminal Case No. 16675:
That on or about the 28th day of December, 1989 in the Municipality of Paraaque, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused who were then public officers, being then members of the Paraaque Police Force,
armed with guns, conspiring and confederating and mutually helping and aiding one another,
with intent to kill and with treachery and by taking advantage of their public positions as
members of the Paraaque Police Force, did then and there willfully, unlawfully and feloniously
shoot one GEORGE GO Y TAN on the different parts of his body, thereby inflicting serious and
mortal wounds upon said victim, which were the direct and immediate cause of his death, to the
damage and prejudice of the heirs of said victim, in such amount as may be awarded to them
under the provision of the Civil Code of the Philippines.
CONTRARY TO LAW.2
On March 18, 1992, petitioners and the other accused were arraigned but they pleaded not
guilty. Petitioners then filed a joint petition for bail raising the issue of lack of jurisdiction on the
ground that the prosecution failed to allege in the informations that the crimes were committed
by the petitioners "in relation to their office" citing the case of Bartolome v. People.3 On March
18, 1992, public respondent Sandiganbayan ordered the amendment of the informations and
stated that the evidence adduced during the pre-trial of the case and the hearing on the petition
for bail shall be deemed automatically reproduced as evidence during the trial of the case on the
merits.
The amended informations, both dated July 15, 1992, against the petitioners and the two
accused alleged:
In Criminal Case No. 16674:
That on or about the 28th day of December, 1989 in the Municipality of Paraaque, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused who were then public officers being then members of the Paraaque Police Force and
armed with guns, and conspiring and confederating and mutually helping and aiding one
another, committing the offense in relation to their public position or office, with intent to kill and
with treachery and by taking advantage of their public positions as members of the Paraaque
Police Force, then and there willfully, unlawfully and feloniously shoot one SHI SHU YANG on
the different parts of his body, thereby inflicting serious and mortal wounds upon said victim,
which were the direct and immediate cause of his death, to the damage and prejudice of the
heirs of said victim, in such amount as may be awarded to them under the provision of the Civil
Code of the Philippines.
CONTRARY TO LAW.4
In Criminal Case No. 16675:
That on or about the 28th day of December, 1989 in the Municipality of Paraaque, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused who were then public officers being then members of the Paraaque Police Force and
armed with guns, and conspiring and confederating and mutually helping and aiding one
another, committing the offense in relation to their public position or office, with intent to kill and
with treachery and by taking advantage of their public positions as members of the Paraaque
Police Force, then and there willfully, unlawfully and feloniously shoot one GEORGE GO Y TAN
on the different parts of his body, thereby inflicting serious and mortal wounds upon said victim,
which were the direct and immediate cause of his death, to the damage and prejudice of the
heirs of said victim, in such amount as may be awarded to them under the provision of the Civil
Code of the Philippines.
CONTRARY TO LAW.5
Arraigned anew on September 18, 1992, petitioners Herrera and Mariano entered their pleas of
not guilty6 and withdrew their objections to the issue of lack of jurisdiction of public respondent
Sandiganbayan over the case and moved that the proceedings and evidence presented during
their petition for bail be adopted in toto. The two other accused, Barrera7 and Alcalde, remained
at large.
During the pre-trial on March 30, 1993, the parties stipulated that during the commission of the
crimes, the petitioners were public officers. Whereupon, the cases were consolidated and a joint
trial on the merits ensued.
The prosecutions evidence consisted of the following:
Reynaldo Ong was the manager of Chow Chow Restaurant which was owned by Spouses
George Go, one of the victims, and Edna Ong Go, located at 5 Country Homes Commercial
Center, Dr. A. Santos Avenue, Paraaque, Metro Manila. Ong was the younger brother of Edna
Go. At about 4:00 am of December 28, 1989, Ong heard two explosions. He proceeded to the
third floor of the restaurant to check on what had happened and as he looked down, he saw
accused Pat. Roberto Barrera and his friend lighting firecrackers at the back of restaurant. Ong
descended the stairs toward the ground floor of the restaurant where he saw the victims George
Go and Shi Shu Yang. George Go asked for some firecrackers from him and proceeded to the
kitchen to light the firecrackers. From a distance outside the restaurant, accused Barrera
shouted, "Pare, meron pa ba?" (asking if there are still firecrackers) to which George Go
responded, "Marami pa." ("There are still plenty.") After George Go responded in the affirmative,
accused Barrera went to the restaurant armed with a .38 caliber pistol tucked in his waist.
George Go then went upstairs, took his .45 caliber pistol from an attache case, tucked it in his
waist, and went back to the kitchen. Moments later, accused Barrera approached George Go,
introduced himself as a Paraaque policeman, and disarmed him (George Go) of his licensed
.45 caliber pistol. Barrera then shouted at his (Barreras) companion, a policeman, who was
upstairs, "Ilabas mo iyong mahaba" (ordering the companion to bring out the long firearm) while
commanding George Go to come out as he had went to the parking lot to hide there. Ong
pleaded with Barrera and told him that George Go would surface only if Barrera would not shoot
him. As soon as George Go emerged from the parking lot, Barrera said, "Tarantado kang
Chekwa ka, ako yung nagbigay sa iyo ng sobre" (uttering invective upon the victim with the use
of the pejorative term for Chinese as he referred to his Christmas solicitation from the victim
who gave him twenty pesos (P20) and two t-shirts). George Go was quiet. Barrera also
demanded that George Go present the license of his firearm which the latter readily showed.
Barrera then told George Go that he would bring the firearm to the police station for verification.
He then called the police station informing them that he had just disarmed George Go. 8
At about 6:00 a.m. of that same day, George Go and his Taiwanese friend, the victim Shi Shu
Yang, were brought to the Paraaque Police Station. Reynaldo Ong proceeded, but went back
to the house to inform Edna Go, wife of George Go, to go to the police station. When she
arrived at the police station, Edna Go saw her husband, who was making a telephone call, and
Shi Shu Yang. She heard Barrera demanding George Go to produce his license to carry a
firearm. Barrera also told George Go to undergo medical examination, but the latter refused.
Thus, Barrera, together with the petitioners and accused Alcalde, shoved George Go to the wall
and made him and Shi Shu Yang ride a police car waiting nearby. They took the victims to the
Paraaque Community Hospital for medical examination. Thereafter, the two were brought to
Timothy Street along Multinational Village where they were shot to death.9
Edna Go also testified that George Go was an agent of Stanley Work Sales and operator of
Chow Chow Restaurant. She said she had spent for the wake and funeral of her husband and,
estimated the expenses for the wake to be at around P10,000 as she was not able to keep the
receipts. However, she presented the receipt issued by La Funeraria Paz amounting to P11,500
as expenses for the casket and funeral services. She stated that she was in a state of shock
and became frightened upon learning of the death of her husband.10
Cristina Winterhalter y Siscar, a resident of nearby Saint Anthony Street, witnessed the killing of
the two victims with the use of a pair of binoculars lent to her by a neighbor, as she viewed it
from a distance of about 80 to 90 meters. She testified that at around 11:00 a.m. of December
28, 1989, she was standing by the window, waiting for her daughter and an Italian neighbor to
come home, when she noticed a Ford Fiera patrol van, with "Paraaque Police Mobile"
appearing on both sides, parked along Timothy Street. From a distance of between 80 to 90
meters, she saw seven persons inside the van, two seated in front while five stayed at the back.
When the van was parked, she saw two men alight from the backseat, one was in civilian
clothes (referring to Pat. Alcalde) and one in police uniform and carrying a rifle (referring to Pat.
Barrera). They were followed by George Go and an unidentified man in black shirt. They took
out Shi Shu Yang who was seated at the back. The one seated at the passenger side was
petitioner Herrera while petitioner Mariano was the one driving the van. Petitioner Mariano went
to the front area of the van and wrote something on a piece of paper. Pat Barrera hit George Go
on the face and, together with petitioner Mariano, they fired about 20 successive shots at the
victim. They also kicked Shi Shu Yang and fired about four times. Petitioner Herrera also fired at
the victims lying on the pavement. They placed the bodies of the victims inside the van and
headed for Fortunate Village. Winterhalter and a neighbor went to the crime scene and found
bloodstains on the pavement, a set of dentures, and a pair of eyeglasses. Later, she executed a
sworn statement before the NBI to narrate what she witnessed. A diagram (Exhibits "L" and "L-
1") was made to give a clearer picture of the location of her house and that of the crime scene.
11

Dr. Roberto Garcia, Medico Legal Officer of the National Bureau of Investigation (NBI),
conducted an autopsy on the body of George Go at around 5:30 p.m. of December 28, 1989 at
the Rizal Funeral Homes, Pasay City. The Autopsy Report No. 89-4195 (Exhibit "A") showed
that George Go sustained eight (8) fatal gunshot wounds on his jaw, chest, abdomen, and arms,
as follows: gunshot wound no. 1 had entry point (4 by 61/2 centimeters) on the right jaw with
exit point (1.8 by 1.5 centimeters) on the left forehead; gunshot wound no. 2 had entry point (0.6
by 1 centimeters) on the upper left chest right with exit point (1.8 by 1.5 centimeters in diameter)
on the upper left back; gunshot wound no. 3 had entry point (0.6 by 0.8 centimeters) below the
left collar bone with exit point (3.2 by 2.8 centimeters) on the upper right back; gunshot wound
no. 4 had entry point (0.5 by 0.7 centimeters) on the upper right chest with exit point (4 by 2.8
centimeters) on upper right back; gunshot wound no. 5 had entry point (0.7 by 1.3 centimeters)
on the upper right abdomen with exit point (1.5 by 1.3 centimeters) on the upper right back;
gunshot wound no. 6 had entry point (0.5 by 0.8 centimeters) on the abdomen area which was
just above the navel with exit point (2.6 by 1.9 centimeters in diameter) on the lower right back;
gunshot wound no. 7 had entry point (0.6 by 0.8 centimeters) on the lower left abdomen with
exit point on the lower right (2.6 by 1.9 centimeters) on the lower right back; and gunshot wound
no. 8 had entry point (0.5 by 0.7 centimeters) on the left arm with exit point (1.8 by 1.6
centimeters) on the left arm. He estimated that the probable distance from the muzzle of the gun
to the victim was about an armslength of 24 inches. He prepared a diagram (Exhibit "B")
indicating the different gunshot wounds sustained by the victim and issued a Certificate of Post-
Mortem Examination (Exhibit "C"). With the trajectory of the bullet, he said that it was possible
that after the first shot was fired, the victim assumed a kneeling position or was lying on the
pavement as the assailant continued to fire the successive shots. The body of the victim was
later identified by Edna Go, wife of George Go.
At around 7:00 p.m., Dr. Garcia also conducted an autopsy on the body of Shi Shu Yang in the
said funeral parlor. The Autopsy Report No. 89-4196 (Exhibit "D") indicated that Shi Shu Yang
sustained three gunshot wounds. He made a diagram (Exhibit "E") identifying the locations of
the gunshot wounds and, likewise, issued a Certificate of Post-Mortem Examination (Exhibit
"F"). Illustrating a distance of about 24 inches, the entry point of gunshot wound no. 1 was at the
back of the head of the victim with no exit point as the deformed bullet was lodged therein. `The
entry point of gunshot wound no. 2 was on the left side of the neck of the victim (0.6 by 0.8
centimeters) and exit point on the right side of the neck (1.2 by 1 centimeter in cross diameter).
He concluded that the assailant must have been at the left of the victim when the shot was fired.
As for gunshot wound no. 3, the distance between the muzzle of the gun and the right arm could
have been more than 24 inches and that the assailant was at the oblique front right of the
victim.12
Edwin Purificando, Senior Forensic Chemist of the NBI, examined the blood type of the victims,
as follows, blood type "B" for George Go per Biology Report No. B-89-2490 (Exhibit "M-2") and
blood type "A" for Shi Shu Yang per Biology Report No. B-89-2491 (Exhibit "M-1"). He also
analyzed the specimen of the blood obtained by the NBI Duty Chemists, Aida Pascual and Bella
Arriola, from the pavement located along Timothy Avenue, called "blood scraping" as shown
Biology Examination Report No. B-89-2498 (Exhibit "M"), and found that it only yielded blood
type "B" which matched with the blood type of George Go. He repeated the blood scraping
procedure and no evidence of blood type "A" was found Biology Examination Report No. B-90-
15 (Exhibit "N" and "N-1").13
Aida Veloria Magsipoc, Supervising Forensic Chemist of the NBI, testified that on December 28,
1989, acting upon the requests for paraffin test (Exhibit "I" and "I-1") by P/Cpl. Glen Tiongson
and P/Cpl Jose Suarez, respectively, she conducted the diphenylamine-paraffin tests on the
dorsal of the left and right hands of the victims and per Chemistry Report No. C-89-1605 for
George Go (Exhibit "H") and Chemistry Report No. C-89-1606 for Shi Shu Yang (Exhibit "H-1"),
they were found negative of nitrates which proved that the victims never fired a gun. 14
Teodoro Ubia y Janeo, a Medical Technologist of the NBI, took pictures of the cadaver of
George Go (Exhibits "K to K-4") and an unidentified person, later known to be, Shi Shu Yang
(Exhibits "J to J-2") to show the different locations where the victims were shot.15
Atty. Leoncio Evangelista, an agent of the NBI, conducted investigation on the killing incident.
On the other hand, the evidence for the defense, are as follows:
Rodolfo Ver y Foronda, Fingerprint Examiner II of the NBI, presented the following documents
relative to the shooting incident that resulted in the death of the two victims, to wit; Progress
Report dated December 28, 1989 (Exhibits "1" and "1-a"); Initial Investigation Report signed by
Col. Rogelio Pureza (Exhibit "2"); Request for Paraffin Test dated December 28, 1989 (Exhibit
"3"); Sworn Statements of Pat Barrera, petitioner Mariano, Pat. Alcalde, and petitioner Herrera
(Exhibits "4," "4-a," "5," "5-a," "6," "6-a," "7," and "7-a"); photocopies of a picture of the
Paraaque Police van No. 102 (Exhibits "8," "8-a" to "8-g") and a Certification issued by Capt.
Abraham Gatchillano dated January 5, 1990 (Exhibits "9" and "9-a").16
Col. Rogelio Pureza y Abutan, PNP District Director of the NPD, CAMANABA testified that he
approved the Progress Report dated December 28, 1989 (Exhibits "1" and "1-a") of Rodolfo
Ver. The report addressed to the Regional Commander (Exhibit 11) was based on the
investigation conducted on petitioners Herrera and Mariano, Pat. Alcalde, Pat. Barrera, and
Edwin Maquinay, and the report of the investigator on the case. He narrated that at about
noontime of December 28, 1989, Edna Go came to his office requesting Col. Pureza for
assistance with regard to her husbands case, but he told her to await for the outcome of the
investigation as the cases for Illegal Possession of Firearms and Resisting Arrest were already
filed with the Prosecutors Office and it would be inappropriate for him to intercede in the case.
While he was talking with Go, SPO4 Ticzon called to inform him about a shooting incident
involving the husband of Go. Since he was not sure if George Go was already dead when the
call came in, he did not relay the information to Go. Thereafter, he came to know that George
Go was brought to the Paraaque Community Hospital by petitioners and accused Barrera and
Alcalde, together with one Shi Shu Yang. As a result of the investigation conducted, he and the
other police officers filed a case for homicide against two of their policemen based on the
evaluation report of their investigator. He turned over the petitioners and the accused to the NBI
for investigation. The two (2) reports stated that one of the victims was carrying a caliber 45
firearm and that said firearm was forwarded to the PCCI laboratory for verification and also for
the purpose of determining if it was previously involved in a crime and to the Firearms and
Explosive Unit for the issuance of a certification as to the veracity of its license.17
SPO4 Glenn Fuentes Ticson testified that on December 28, 1989, he was assigned as Duty
Investigator at the CID, Paraaque Police Station and, as such, was tasked to investigate
criminal cases referred to him by their Desk Officer or immediate supervisor. On December 28,
1989, Cpl. Antonio Batola, Duty Officer, reported to him about a shooting incident and that the
victims were already brought to the Paraaque Community Hospital. He and Pat. Oscar dela
Cruz immediately proceeded to the said hospital and upon arrival, the hospital personnel
informed them that the victims were pronounced dead on arrival. The victims were identified
through their identification cards. The bodies of the victims sustained multiple gunshot wounds
and were bathed in blood. When he was informed that the victims were brought by four (4)
policemen, he interviewed two (2) of them (accused Barrera and Alcalde) and they admitted
having shot the victims but claimed self-defense. He called up their Station Commander
informing him about the shooting incident involving Paraaque policemen. He retrieved the
service firearms belonging to the two accused and proceeded to the scene of the crime past
noon. The people within the vicinity told him that while they did not see the actual shooting
incident, they heard successive gunshots. The patrol van used by the petitioners and the two
accused suspects was left in the hospital and, later brought to the police station. Ticzon
declared further that after the incident, he instructed his co-investigator to get the statement of
the wife of the victim George Go at the Chow Chow restaurant. Prior to the shooting incident, he
was informed that George Go was previously arrested by accused Barrera in connection with a
case for Illegal Possession of Firearms. He was familiar with the people in Timothy street to
avoid traffic in going to the police headquarters. On the same day of the shooting incident, he
requested the NBI to conduct an autopsy on the cadaver of the victims. Thereafter, he prepared
two (2) reports which he submitted to Col. Pureza at about 9:00 oclock pm. of December 28,
1989. The pictures of the police van used in transporting the deceased to the hospital were
taken at about 3:00 0clock p.m. at the police station but he had nothing to do with the taking of
those pictures. The extent of his investigation with respect to the shooting incident from the
beginning to the end and before the case was turned over to the NBI are all included in Exhibit
1. upon arrival at the police headquarters coming from the scene of the crime, he reported to
Col. Pureza. Before the turn-over of the case to the NBI, Col. Pureza assigned Pat. De la Cruz
and Pat. Octavio to assist him in the investigation of the incident. As head investigator, his
duties include any request for autopsy and paraffin tests but he did not recommend that paraffin
test be conducted upon the two victims. Before the turn-over of this case to the NBI, he did not
gather the firearms involved in this case for ballistic examination. The Cal. 45 firearm recovered
from George Go was in the custody of Col. Pureza which was turned over by Pfc. Biong but he
does not know if Col. Pureza signed any receipt for said firearm. He only saw the serial no. of
said firearm, which was tampered, in the office of Col. Pureza in the afternoon of December 28,
1989.18
SPO3 Gil Labay y Cantor declared that on January 8, 1990, he was assigned at the Physical
Identification Division of the PNP Crime Laboratory at Camp Crame, Quezon City and among
his duties was to perform macro-etching on firearms and motor vehicles. On January 8, 1990,
he examined one (1) Cal. 45 bearing serial no. 198842 (Exhibit "16"). His findings showed that
there were signs of filing and grinding on the metal surface where the serial no. is located. His
examination was based upon the letter-request of the Station Commander of the Paraaque
police station (Exhibit "17"). Said request was received by their duty officer but they did not
retain a copy of the receipt that was issued to the requesting party. He does not know if said
firearm was first submitted to the PC Crime Laboratory and said firearm was received by one
Pat. Bustillo (Exhibit "18-a"). the serial number of the firearm was tampered and he did not see
the original serial number of the said firearm. In the course of his examination, he could not
determine the approximate period of time when the allege.d tempering of the firearm was made
because of the super-imposition of the number. He did not verify from the Firearms and
Explosive Unit whether the firearm was licensed or not.19
Testifying in his defense, petitioner Redentor Mariano declared that on December 28, 1181, he
was connected with the Paraaque Police Station and assigned with the Mobile Patrol Division,
with his tour of duty being from 6:00 oclock p.m. to 6:00 oclock a.m. At about 5:30 oclock a.m.
in the morning of December 28, 1181, he received a radio message from their radio operator to
proceed to the police head quarters to assist accused Barrera in bringing persons for medical
examination. Upon arrival at the police headquarters, accused Alcalde and Barrera alighted
from the mobile patrol van while he stayed inside the mobile car. At about 10:30 oclock a.m. of
the same day, accused Alcalde, Barrera, Herrera and himself brought two persons to the
Paraaque Community Hospital. In going to the said hospital, they passed through Fortunate
Village and Multinational Village and, upon arrival at the hospital, accused Alcalde and Barrera
accompanied the two persons. At about 11:00 oclock a.m., on their way back to the Paraaque
police station, he heard accused Alcalde saying "George, ano ka ba, bitiwan mo ang baril mo"
and not long after, he heard successive shots. When he looked back, he saw George Go
grappling for the possession of a firearm with accused Alcalde. He stopped the van and alighted
in order to pacify what was happening inside the van but he heard again successive shots and
thereafter, he saw the two Chinese nationals fall inside the van bathed with blood. He told his
companions to bring the victims to the hospital and later informed their Chief of Police about the
incident. Upon arrival at the hospital, he told his companions to request the hospital personnel
to get the two dead persons inside the van. After the incident, he was investigated and his
statement was taken.20
On cross-examination, he declared that the reason why the two Chinese nationals were brought
to the hospital in the morning of December 28, 1181 for medical examination was because he
learned that there was a case filed against George Go. In going to the hospital, he was in front
of the van just besides the driver, while accused Alcalde, Barrera, George Go and the latters
companion were at the back. He and the driver were both armed with cal. 38 while accused
Alcalde was armed with M-16 armalite rifle and accused Barrera was armed with a Cal. 38.
While inside the van, George Go was handcuffed while his companion was not. Accused
Alcalde and Barrera were seated fronting the two Chinese nationals. The distance from the seat
where accused Alcalde and Barrera were seated to the seat where the two victims were seated
would be more or less 2 feet but there was a gap between the knees of the passengers seated
which was about 12 inches. From the time he heard the first shot up to the time the police van
stopped, they had traveled more or less 5 to 10 meters. He was shocked when he heard the
first shot and when he looked back, he saw George Go trying to grab the firearm of the accused
Alcalde by holding the butt and almost the muzzle of the firearm. He did not see the finger of
accused Alcalde on the trigger guard of his firearm immediately after he heard the series of
shots because the incident happened too fast. While at the police headquarters, he asked
accused Alcalde and Barrera what happened and they told him that George Go tried to grab the
firearm of accused Alcalde but he was not able to ask them who shot George Go.21
In the morning of December 21, 1181, they were submitted for paraffin tests at the PNP Crime
Laboratory and with respect to him, the findings was negative but he does not know what was
the result of the findings with respect to accused Barrera and Alcalde. They left the hospital
before 1:00 oclock p.m. and it was only a matter of minutes before they reached Multinational
village. The investigator did not take photographs at the scene of the incident at that time. in the
night of march 3, 1111, Mrs. Edna Go came to see him at Camp Bicutan and asked him why the
other policemen did not see her when in fact an agreement that the case be settled before the
NAPOLCOM had been reached.
Dr. Frederick Singson y Soliven, Resident Physician of the Paraaque Community Hospital
testified that on December 28, 1181, he examined George Go and found out that the latter was
positive for alcohol breath but no signs of physical injuries. At about 11:45 a.m. of the same day,
George Go was brought back to the hospital with six gunshot wounds and was declared dead
on arrival (Exhibit 11-a). He also treated accused Herrera on the same day and found out that
said patient was negative of alcohol breath and had a linear abrasion which was 1 cm. in size
(Exhibit 20-a). He was not the one who prepared the entries in Exhibit 11-a and there was no
initial of the person who made the handwritten notations therein. George Go was brought to the
hospital by the policemen and one of them was accused Herrera but he did not ask the
policemen the purpose why George Go was to be examined. He did not take the blood
chemistry of George Go to determine whether alcohol existed in his blood. He admitted that he
was not the one who wrote the notations of the dorsal portion of Exhibit 20. The first portion of
the medical report of George Go was written by Dr. Bautista and the lower portion was written
by him (Exhibit x and y). According to accused Herrera, the abrasion inflicted on his neck was
due to an alleged scuffle with somebody but said injury could also be self-inflicted.22
SPO2 Armand Octavio, a member of the Paraaque police Station testified that on December
28, 1181, he was instructed to take the statement of accused Barrera (Exhibit 21, 21-a and 21-
b). He also received an investigation report from the office of the Investigation Division signed
by SPO3 Ticzon and Col. Pureza. Aside from these reports, he was also furnished a certification
from the Firearms and Explosive Unit and an investigation report regarding the charge for Illegal
Possession of Firearms against accused George Go.23
Testifying in his defense, petitioner Edgardo Herrera declared that he had been a member of
the Paraaque Police Station. On December 28, 1181, he reported at the police headquarters
and his tour of duty was from 6:00 oclock p.m. to 6:00 oclock a.m. and his companions were
accused Mariano and Alcalde. At about 6:00 oclock a.m. of December 28, 1181, they received
a radio message from their headquarters, directing them to report to the Chief of Police. Upon
arrival at the police headquarters, their Desk Officer ordered them to bring a certain George Go
to the Paraaque Community Hospital for medical examination. Before George Go was brought
to the hospital, he was very unruly at the police headquarters and refused to be brought to the
hospital. On their way to the hospital, they took Sucat road and proceeded towards Fortunata
Village and then to Multinational Village to avoid traffic jams. After the examination of George
Go, they brought him back to the police headquarters but upon reaching Timothy Street in
Multinational Village, a shooting incident happened. While he was at the steering wheel, he
heard accused Alcalde saying "George, bitiwan mo ang baril ko" and not long after, he heard a
gunshot. He looked back and when he saw that the muzzle of an Armalite rifle was almost at his
back, he tried to parry it but it went off successive shots. He immediately jumped out of the
vehicle and pulled out his firearm and saw the two Chinese nationals already lying on the floor
of the police van. He immediately drove the police van and brought the victims back to the
Paraaque Community Hospital. After the incident, he was investigated and his statement was
taken (Exhibits 7 and 7-a). He was also subjected to paraffin tests and the result was negative.24
On cross-examination, he declared that he did not see who placed handcuffs on the hands of
George Go but when he saw the latter seated at the back of the police van, he was not
handcuffed. Before they brought George Go to the hospital, he saw Gos wife who was insisting
to go with them but George Go did not allow her and, instead, he took along his Taiwanese
friend, one Shi Shu Yang. Apart from George Go and Shi Shu Yang, there were four (4) of them
who boarded the police van and alighted at the hospital but did not go back with them to the
police headquarters. All of them, except Maquinay, were armed. Being the driver of the police
van for almost a year, he was familiar with the different roads coming from the police station to
the Paraaque Community Hospital. In fact, there are two routes in going to the said hospital,
one of which is Dr. Santos Avenue up to Sucat road and other is thru Fortunata Village and then
to Multinational Village. There are houses and business establishments along Dr. Santos Ave.
while there are few houses and unfinished structures along Timothy Street in Multinational
Village. He was the one who decided to take Multinational Village in going back to the police
headquarters to avoid traffic. The road leading to Fortunata Village is not a bumpy road. In fact,
he can reach the police station from the hospital if he passes thru Multinational Village without
passing thru Timothy Street. He claimed that George Go and Shi Shu Yang were not forced to
go down by accused Barrera and Alcalde from the police van when it passed thru Timothy
Street. After hearing the gunshots, he stopped the vehicle. When they went back to the scene of
the crime, he saw blood dripping and blood stains on the sidewalk.25
On December 13, 1994, public respondent Sandiganbayan26 convicted each of the petitioners of
two (2) counts of murder. The dispositive portion of its Decision reads as follows:
WHEREFORE, after joint trial on the merits in the above-numbered cases, judgment is hereby
rendered in the following:
I. In Crim. Case No. 16674 accused Edgardo Herrera y [B]altoribio and Redentor
Mariano y Antonio are hereby found guilty beyond reasonable doubt as co-principals in
the offense of Murder, as defined and penalized by Article 248 of the Revised Penal
Code, qualified by treachery and with the generic aggravating circumstance of taking
advantage of their public positions, abuse of superior strength, in band and use of a
motor vehicle, without any mitigating circumstance in offset, and each of the accused is
hereby sentenced to suffer the penalty of reclusion perpetua in said case, with the
accessory penalties of imposed by law; to indemnify, jointly and severally, the heirs of
the late George Go in the amounts of P11,500.00 as actual damages, plus P500,000.00
in the form of unrealized earnings and income.
II. In Crim. Case No. 16675 accused Edgardo Herrera y [B]altoribio and Redentor
Mariano y Antonio are herby found GUILTY beyond reasonable doubt as co-principals in
the offense of Murder, defined and penalized by Article 248 of the Revised Penal Code,
qualified by treachery and with the generic aggravating circumstance of taking
advantage of their public positions, abuse of superior strength, in band and use of a
motor vehicle, without any mitigating circumstance in offset, and each of the accused is
hereby sentenced to suffer the penalty of reclusion perpetua in said case, with the
accessory penalties of [i]mposed by law; to indemnify, jointly and severally, the heirs of
the late Shi Shu Yang in the amounts of P50,000.00;
27
III. Both accused to pay their proportionate share of the costs of these actions.
On March 28, 1995, public respondent Sandiganbayan denied petitioners joint motion for
reconsideration. On April 3, 1995, petitioner Herrrera filed a notice of appeal and thereafter on
May 30, 1995, together with petitioner Mariano, he filed a petition for review on certiorari with
this Court alleging the following grounds:
1. THE RESPONDENT SANDIGANBAYAN ERRED IN CONVICTING THE PETITIONERS FOR
MURDER UNDER THE AMENDED INFORMATIONS;
2. THE RESPONDENT SANDIGANBAYAN ERRED IN REFUSING TO ALLOW THE
PETITIONERS TO CONDUCT FURTHER CROSS EXAMINATION ON PROSECUTION
WITNESS WINTERHALTER;
3. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING
THAT THE TESTIMONY OF ALLEGED EYEWITNESS WINTERHALTER WAS WANTING IN
CREDIBILITY;
4. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING
THAT PROSECUTION WITNESS NBI MEDICO-LEGAL OFFICER AND HIS REAL EVIDENCE
SUPPORT THE THEORY OF THE DEFENSE;
5. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING
THAT THERE WAS TOTAL ABSENCE OF EVIDENCE TO SUPPORT CONSPIRACY;
6. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING
THAT THE PETITIONERS ARE ENTITLED TO THE PRESUMPTION OF REGULARITY IN
THE PERFORMANCE OF OFFICIAL ACTS; AND
7. THE RESPONDENT SANDIGANBAYAN ERRED IN NOT FINDING AND CONCLUDING
THAT THE EVIDENCE OF THE PROSECUTION FAILED TO ESTABLISH THE GUILT OF THE
PETITIONERS BEYOND REASONABLE DOUBT.
The Court affirms the conviction.
First. Petitioners insist that respondent Sandiganbayan erred in convicting them for the crime of
murder under the amended informations as they had earlier been arraigned under the original
informations for murder and their rearraignment under the amended informations placed them in
double jeopardy.
The rule on double jeopardy does not apply. Public respondent Sandiganbayan ordered the
amendment of the informations and made it of record that the evidence adduced during the pre-
trial of the case and the hearing on the petition for bail shall be deemed automatically
reproduced as evidence during the trial of the case on the merits. Double jeopardy did not
attach by virtue of petitioners plea of not guilty under the amended information. For a claim of
double jeopardy to prosper, the following requisites must concur: (1) there is a complaint or
information or other formal charge sufficient in form and substance to sustain a conviction; (2)
the same is filed before a court of competent jurisdiction; (3) there is a valid arraignment or plea
to the charges; and (4) the accused is convicted or acquitted or the case is otherwise dismissed
or terminated without his express consent.28
In the present case, petitioners and the other accused pleaded not guilty to the original
informations. Thereafter, at the instance of the petitioners, through a joint petition for bail, they
raised the issue of lack of jurisdiction on the ground that the prosecution failed to allege in the
informations that the crimes were committed "in relation to their office." On the same day,
respondent court ordered the amendment of the informations accordingly. Thus, the first
requirement for double jeopardy to attach, that is, that the informations against the petitioners
were valid, has not been complied with.
Likewise, the fourth element was lacking. Petitioners cannot be validly convicted on the basis of
the original information as the prosecution failed to allege in the informations that the crimes
were committed "in relation to their office." Petitioners were thus not placed in danger of being
convicted when they entered their plea of not guilty to the insufficient information. Moreover,
there was no dismissal or termination of the case against petitioners.
Furthermore, it was well-within the power of public respondent Sandiganbayan to order the
amendment of the information under Section 4, Rule 117 of the Rules on Criminal Procedure
which states that if the motion to quash is based on an alleged defect of the complaint or
information which can be cured by amendment, the court shall order that an amendment be
made. If it is based on the ground that the facts charged do not constitute an offense, the
prosecution shall be given by the court an opportunity to correct the defect by amendment. The
motion shall be granted if the prosecution fails to make the amendment, or the complaint or
information still suffers from the same defect despite the amendment.
Second. Petitioners make much of the fact the public respondent Sandiganbayan should have
allowed their counsel to conduct further cross-examination on prosecution witness Winterhalter.
Rule 132, Section 6 of the Revised Rules on Evidence provides that upon the termination of the
direct examination, the witness may be cross-examined by the adverse party as to any matter
stated in the direct examination, or connected therewith, with sufficient fullness and freedom to
test his accuracy and truthfulness and freedom from interest or bias or the reverse, and to elicit
all important facts bearing upon the issue. The cross-examination of a witness is a right of a
party against whom he is called. Article III, Section 14(2) of the Constitution states that the
accused shall have the right to meet the witnesses face to face. Rule 115, Section 1(f) of the
Revised Rules of Criminal Procedure also states that, in all criminal prosecutions, the accused
shall have the right to confront and cross-examine the witnesses against him. Indeed,
petitioners counsel has conducted an extensive cross-examination of witness Winterhalter on
the scheduled dates of hearing. Petitioners, therefore, cannot claim there has been any
procedural infirmity in the proceedings.
Moreover, the trial court has the power to direct the course of the trial either to shorten or to
extend the direct or cross examination of a counsel. Under Rule 133, Section 6 of the Revised
Rules on Evidence, the court may stop the introduction of further testimony upon any particular
point when the evidence upon it is already so full that more witnesses to the same point cannot
be reasonably expected to be additionally persuasive. But this power should be exercised with
caution. Thus, it is within the prerogative of the trial court to determine when to terminate the
presentation of the evidence of the prosecution or the defense.
Third. Petitioners attempt to destroy the credibility of prosecution witness Winterhalter fails. The
trial court had the opportunity to observe first-hand the demeanor and deportment of the
witnesses, and, therefore, its findings that the witnesses for the prosecution are to be believed
over those of the defense are entitled to great weight. Winterhalter recognized the petitioners as
the ones who cooperated with Pat. Barrera in killing the victims. She saw the events unfolding
with the use of her binoculars 80-90 meters away. She established the identity of the petitioners
as the companions of Pat. Barrera when he effected the killing. It has been ruled that findings of
fact of the trial court on credibility of witnesses should be accorded the highest respect. The
Court has refrained from interfering with the judgment of the trial court in passing on the
credibility of witnesses unless there appears on record some fact or circumstance of weight and
influence which has been overlooked or the significance of which as been misapprehended or
misinterpreted. None exists in this case.
After the incident, Winterhalters neighbor, who was also a foreigner, has been receiving death
threats. She herself has been getting death threats too, yet she voluntarily testified in order to
shed light on the commission of the crime. In fact, she did not even know the two victims.
Indeed, where there is nothing to indicate that a witness was moved by improper motives, his
positive and categorical declarations on the witness stand, made under solemn oath, should be
given full faith and credence. It has not been shown that Winterhalter has any reason to falsely
implicate petitioners.
Winterhalter narrated that Pat. Barrera and Pat. Alcalde, together with petitioners, were
responsible for the death of the victims. This was confirmed by the post mortem report prepared
by Dr. Roberto Garcia, medico legal officer of the NBI, showing the gunshot wounds on the
different parts of the victims body.
Fourth. Petitioners would persuade the Court that the testimony of the NBI-Medico Legal
Officer, a prosecution witness, supports the theory of the defense that they acted in self-
defense.
This argument cannot stand. By invoking the justifying circumstance of self-defense, petitioners
assume the onus of proving: (1) unlawful aggression; (2) reasonable necessity of the means
employed to prevent or repel the unlawful aggression; and (3) lack of sufficient provocation on
the part of the person defending himself. Petitioners failed to discharge this burden.
To proceed with the argument that there was unlawful aggression by the two deceased who
tried to get the pistol tucked in the waist of one of the police officers, petitioners should prove
that they used reasonable means in repelling the aggression. Considering that both deceased
where handcuffed and unarmed and had restricted movements, it could only mean that the
perceived threat to petitioners lives were not sufficiently serious, in which case they were not
justified in shooting the hapless victims who were unarmed. Petitioners could have simply
subdued the two victims in a manner as to engage them in a fight without necessarily killing
them. Moreover, the autopsy reports showing the extent of the wounds sustained by George Go
and Shi Shu Yang tend to discredit the version of the defense.
Fifth. Petitioners assert that there was total absence of evidence to support the theory that
conspiracy attended the commission of the crime.
Conspiracy can be inferred from the acts of the accused which clearly manifest a concurrence
of wills, a common intent or design to commit a crime. The familiar rule in conspiracy is that
when two or more persons agree or conspire to commit a crime, each is responsible, when the
conspiracy is proven, for all the acts of the others, done in furtherance of the conspiracy.29 In
this case, petitioner Herrera drove the vehicle along Timothy Street to a place which was less
conspicuous to passersby. There, Pat. Alcalde, Pat. Barrera, and petitioner Mariano brought out
the two victims from the back portion of the van in order to perpetuate the killing. Petitioner
Mariano alighted from the right front seat of the van and stood beside Pat. Alcalde and Pat.
Barrera who began shooting the victims. According to Winterhalter, petitioner Mariano even
appeared to be writing something on a sheet of paper immediately before the shooting, although
it cannot be determined with certainty as to whether he was making an inquiry or merely noting
the names of the victims. While it was Pat. Barrera who actually shot the two victims, the
evidence showed a common design on the part of both petitioners as they did not do anything to
prevent him from killing the victims, thus, indicative of the fact that they are in unison with the
criminal design of the Pat. Barrera. Petitioner Herrera alighted form the van without doing
anything to prevent the killing, and worse, after the killing took place along the street, petitioner
Herrera even helped carry the two victims into the van while petitioner Mariano, the driver,
remained in the vehicle during the incident. Consequently, applying the rule that the act of one
is the act of all, petitioners are thus as guilty as Pat. Barrera and Pat. Alcalde. In fact,
conspiracy need not be established by direct evidence but may be inferred from the surrounding
circumstances.
Sixth. Intertwined with their argument that they were acting in self-defense, petitioners want this
Court to appreciate the presumption of regularity in the performance of their official acts.
This contention has no merit. In order to consider the defense of fulfillment of a duty, it must be
shown that: (1) the accused acted in the performance of a duty or in the lawful exercise of a
right or office; and (2) the injury caused or the offense committed is the necessary consequence
of the due performance of duty or the lawful exercise of a right or office. 30 There was no
showing that petitioners should resort to inflicting injuries and even to the extent of killing the
victims as there was no resistance at all from them when they were apprehended. The two
victims were handcuffed and unarmed while the petitioners and the other police officers were
armed with pistols and a rifle. Aida Veloria Magsipoc, Supervising Forensic Chemist of the NBI,
per Chemistry Report No. C-89-1606, conducted the paraffin test on George Go and Shi Shu
Yang which yielded negative results, thus showing that the victims never fired a gun and were
totally defenseless in the face of the fully armed police officers.
Petitioners anchor their argument that they merely acted in self-defense. This contention has no
merit. The accused who invokes self-defense thereby admits having killed the victim, and the
burden of evidence is shifted on him to prove, with clear and convincing evidence, the
confluence of the following essential elements: (1) unlawful aggression; (2) reasonable
necessity of the means employed to prevent or repel it; and (3) lack of sufficient provocation on
the part of the person defending himself.31
Moreover, the nature and number of wounds inflicted by the accused are constantly and
unremittingly considered as important indicia which disprove a plea of self-defense or defense
of stranger because they demonstrate a determined effort to kill the victim and not just defend
oneself.32 The victims were repeatedly shot at close range and on vital parts of their bodies,
thus indicia that the police officers really intended to kill them. Clearly, the presumption of
regularity in the performance of official duties on the part of the petitioners and the other police
officers does not apply.
Seventh. Petitioners maintain that the prosecution failed to establish their guilt beyond
reasonable doubt.
On the contrary, the killing of the two victims was proved to have been committed with the
qualifying circumstance of treachery. The essence of treachery is a deliberate and sudden
attack, affording the hapless, unarmed and unsuspecting victim no chance to resist or to
escape. Frontal attack can be treacherous when it is sudden and unexpected and the victim is
unarmed. What is decisive is that the execution of the attack made it impossible for the victim to
defend himself/herself or to retaliate.33
The records are extant on the findings of respondent Sandiganbayan that when petitioner
Herrera drove the patrol car along Timothy Street to an practically deserted area and isolated
from traffice and pedestrians, Pat. Alcalde, Pat. Barrera, and petitioner Mariano brought out the
two victims from the back portion of the patrol car in order to eventually salvage them which
showed that all the police officers had a community of criminal design. Petitioner Mariano mad
the pretense of writing down something prior to the shooting incident. It would appear that he
was faking an alleged interrogation or trying to get the name of Shi Shu Yang, whose identity
was not immediately known, yet the fact remains that he did not do anything to prevent the
killing and even helped in loading the body of George Go inside the patrol car.
Clearly, the elements of murder have been proven: 1). that the two victims were killed; 2). that
petitioners and the two other accused killed the victims; 3). that the killing was attended by the
qualifying circumstance of treachery committed by the petitioners and the two other accused
who conspired together in killing the victims; and 4). that the killing was not parricide or
infanticide.
Eighth. Public respondent Sandiganbayan did not grant any award of damages in favor of the
heirs of Shi Shu Yang and George Go y Tan. When death occurs due to a crime, the following
damages may be awarded: (1) civil indemnity ex delicto for the death of the victim; (2) actual or
compensatory damages; (3) moral damages; (4) exemplary damages; and (5) temperate
damages.34
Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other
than the commission of the crime. Under prevailing jurisprudence, the award of P50,000 to the
heirs of the victims as civil indemnity is in order.35 In cases of murder and homicide, moral
damages may be awarded without need of allegation and proof of the emotional suffering of the
heirs, other than the death of the victim, since the emotional wounds from the vicious killing of
the victims cannot be denied. Thus, the award of P50,000 is proper.36
As to the award of actual damages, Edna Go testified that she incurred funeral expenses of
P11,500. Moreover, the award of exemplary damages of P25,000 is proper since the qualifying
circumstance of treachery attended the killing of the victims. Article 2230 of the Civil Code
allows the award of exemplary damages as part of the civil liability when the crime was
committed with one or more aggravating circumstances. The term aggravating circumstance as
used therein should be construed in its generic sense since it did not specify otherwise.37
WHEREFORE, the petition is DENIED for lack of showing that public respondent
Sandiganbayan committed any reversible error. The Decision of public respondent
Sandiganbayan, dated December 13, 1994, finding petitioners Pat. Eduardo Herrera y Baltoribio
and Pat. Redentor Mariano y Antonio guilty beyond reasonable doubt as co-principals for two
(2) counts of murder and sentencing each of them to suffer the penalty of reclusion perpetua
with the accessory penalties of civil interdiction during the time of their sentence and perpetual
absolute disqualification for public office is AFFIRMED WITH MODIFICATION. Additionally,
petitioners are ORDERED to pay the heirs of Shi Shu Yang and George Go y Tan each in the
amount of P50,000 as civil indemnity, P50,000 as moral damages, P11,500 for actual damages,
and P25,000 as exemplary damages. Costs against the petitioners.
SO ORDERED.
ADOLFO S. AZCUNA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
Chairperson
ANTONIO T. CARPIO RENATO C. CORONA
Associate Justice Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions
in the above Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice

Footnotes
1
Records, Vol. 2, p. 6.
2
Id., 8.
3
G.R. No. L-64548, July 7, 1986, 142 SCRA 459. In this case, therein accused, Rolando
Bartolome y Perez, Senior Labor Regulation Officer and Chief of the Labor Regulations
Section, and Elino Coronel y Santos, Labor Regulation Officer, both of the Ministry of
Labor (now Department of Labor and Employment [DOLE]), were charged with the crime
of falsification of official document penalized under Article 171, paragraph 4 of the
Revised Penal Code (i.e., Bartolome made untruthful statements in his Personal Data
Sheet [Civil Service Form No. 212] by making it appear that he was a 4th Year AB
student at the Far Eastern University (FEU) and that he had taken and passed the
"Career Service (Professional) Qualifying Examination" on May 2, 1976 in Manila even if
his rating was 73.35%). The Court declared the proceedings in the Sandiganbayan to be
null and void ab initio on the ground that said court had no jurisdiction over the case. It
explained that there was no showing that the alleged falsification was committed by
therein accused, if at all, as a consequence of, and while they were discharging, official
functions. The information set forth therein did not allege that there was an intimate
connection between the discharge of official duties and the commission of the offense.
Therefore, since the alleged falsification was not an offense committed in relation to the
office of the accused, it did not come under the jurisdiction of the Sandiganbayan.
4
Records, Vol. 2, p. 1.
5
Records, Vol. 2, p. 4.
6
Records, Vol. I, pp. 105-106.
7
Pat. Roberto Barrera was later apprehended and trial of the case against him
proceeded. In a Decision dated January 15, 2004, the Sandiganbayan convicted him of
two counts of murder and sentenced him to suffer the penalty of reclusion perpetua and
to pay civil indemnity and damages. The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered in the following:
(1) In Crim. Case No. 16674, the Court finds the accused Pat. Roberto
Barrera guilty beyond reasonable doubt of the crime of murder defined in
and penalized by Article 248 of the Revised Penal Code, as amended,
and hereby sentences him to suffer the penalty of reclusion perpetua with
the accessory penalties of civil interdiction during the time of his sentence
and perpetual absolute disqualification for public office.
(2) In Crim. Case No. 16675, the Court finds the accused Pat. Roberto
Barrera guilty beyond reasonable doubt of the crime of murder defined in
and penalized by Article 248 of the Revised Penal Code, as amended,
and hereby sentences him to suffer the penalty of reclusion perpetua with
the accessory penalties of civil interdiction during the time of his sentence
and perpetual absolute disqualification for public office.
Accused Barrera is further ordered to pay the legal heirs of George Go and Shi
Shu Yang the amount of fifty thousand pesos (P50,000.00) each for moral
damages and fifty thousand pesos (P50,000.00) each as indemnity for death;
and, to pay eleven thousand five hundred pesos (P11,500.00) as actual
damages and one million four hundred thirty three thousand four hundred
eighteen pesos (P1,433,418.00) for loss of earnings to the heirs of George Go.
The period within which the accused Roberto Barrera was detained at the City
Jail shall be credited to him in full as long as he agrees in writing to abide by and
follow strictly the rules and regulations of the said institution.
Costs against the accused.
SO ORDERED. (Rollo, pp. 273-274).
Per records of the case, while accused Barrera filed a notice of appeal, no further
pleading was thereafter filed.
8
TSN (Reynaldo Ong), July 14, 1993, pp. 3-19.
9
TSN (Edna Go), June 10, 1992, pp. 4-22.
10
TSN (Edna Go), March 31, 1993, pp. 4-10.
11
TSN (Cristina Winterhalter), April 3, 1992, pp. 2-36.
12
TSN (Dr. Roberto Garcia), March 25, 1992, pp. 3-41.
13
TSN , April 3, 1992, pp. 37-46.
14
TSN, April 1, 1992, pp. 4-18.
15
TSN, April 1, 1992, pp. 18-25.
16
TSN (Rodolfo Ver), September 29, 1993, pp. 12.
17
TSN, September 29, 1993, pp. 14-18.
18
TSN, September 30, 1993, pp. 4-19.
19
TSN, October 27, 1993, pp. 4- 11.
20
TSN, January 12, 1994, pp. 3-11.
21
TSN, January 12, 1994, pp. 12-36.
22
TSN, April 15, 1994, pp. 3- 14.
23
TSN, April 15, 1994, pp. 15-21.
24
TSN, April 15, 1994, pp. 22-30.
25
TSN, April 15, 1994, pp. 31-47.
26
Per Justice Romeo M. Escareal (Chairman, Second Division) and concurred in by
Justice Augusto M. Amores and Justice Minita Chico-Nazario, now an Associate Justice
of this Court.
27
Rollo, pp. 92-93.
28
Amadore v. Romulo, 466 SCRA 397 (2005); Lasoy v. Zenarosa, 455 SCRA 360
(2005).
29
People v. Masagnay, 431 SCRA 572 (2004).
30
Angcaco v. People, G.R. No. 146664, February 28, 2002, 378 SCRA 297.
31
People v. De los Reyes, 430 SCRA 166.
32
Cabanlig v. Sandiganbayan, 464 SCRA 324.
33
People v. Tolentino, G.R. No. 176385, February 26, 2008.
34
People v. Beltran, Jr., G.R. No. 168051, September 27, 2006, 503 SCRA 715.
35
Santos v. People, G.R. No. 173282, March 4, 2008.
36
People v. Villa, G.R. No. 179278, March 28, 2008.
37
People v. Eling, G.R. No. 178546, April 30, 2008.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. Nos. 103501-03 February 17, 1997


LUIS A. TABUENA, petitioner,
vs.
HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES, respondents.
G.R. No. 103507 February 17, 1997
ADOLFO M. PERALTA, petitioner,
vs.
HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES,
represented by the OFFICE OF THE SPECIAL PROSECUTOR, respondents.

FRANCISCO, J.:
Through their separate petitions for review, 1 Luis A. Tabuena and Adolfo M. Peralta (Tabuena
and Peralta, for short) appeal the Sandiganbayan decision dated October 12, 1990, 2 as well as
the Resolution dated December 20. 1991 3 denying reconsideration, convicting them of
malversation under Article 217 of the Revised Penal Code. Tabuena and Peralta were found
guilty beyond reasonable doubt Of having malversed the total amount of P55 Million of the
Manila International Airport Authority (MIAA) funds during their incumbency as General
Manager and Acting Finance Services Manager, respectively, of MIAA, and were thus meted
the following sentence:
(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer
the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion
temporal as minimum to twenty (20) years of reclusion temporal as maximum,
and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the
amount malversed. He shall also reimburse the Manila International Airport
Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from
public office,
(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer
the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion
temporal as minimum, and twenty (20) years of reclusion temporal as maximum,
and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the
amount malversed. He shall also reimburse the Manila International Airport
Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from
public office.
(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta
are each sentenced to suffer the penalty of imprisonment of seventeen (17)
years and one (1) day of reclusion temporal as minimum and twenty (20) years of
reclusion temporal as maximum and for each of them to pay separately a fine of
FIVE MILLION PESOS (P5,000,000.00) the amount malversed. They shall also
reimburse jointly and severally the Manila International Airport Authority the sum
of FIVE MILLION PESOS (P5,000,000.00).
In addition, they shall both suffer the penalty of perpetual special disqualification
from public office.
A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General
Manager of MIAA, has remained at large.
There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount
of P55 Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the
principal accused he being charged in all three (3) cases. The amended informations in
criminal case nos. 11758, 11759 and 11760 respectively read:
That on or about the 16th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines, and within the jurisdiction of this
Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public
officers, being then the General Manager and Assistant General Manager,
respectively, of the Manila International Airport Authority (MIAA), and
accountable for public funds belonging to the MIAA, they being the only ones
authorized to make withdrawals against the cash accounts of MIAA pursuant to
its board resolutions, conspiring, confederating and confabulating with each
other, did then and there wilfully, unlawfully, feloniously, and with intent to
defraud the government, take and misappropriate the amount of TWENTY FIVE
MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the
issuance of a manager's check for said amount in the name of accused Luis A.
Tabuena chargeable against MIAA's Savings Account No. 274-500-354-3 in the
PNB Extension Office at the Manila International Airport in Pasay City,
purportedly as partial payment to the Philippine National Construction
Corporation (PNCC), the mechanics of which said accused Tabuena would
personally take care of, when both accused well knew that there was no
outstanding obligation of MIAA in favor of PNCC, and after the issuance of the
above-mentioned manager's check, accused Luis A. Tabuena encashed the
same and thereafter both accused misappropriated and converted the proceeds
thereof to their personal use and benefit, to the damage and prejudice of the
government in the aforesaid amount.
CONTRARY TO LAW.
xxx xxx xxx
That on or about the 16th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay. Philippines and within the jurisdiction of this
Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public
officers, being then the General Manager and Assistant General Manager,
respectively, of the Manila International Airport Authority (MIAA), and
accountable for public funds belonging to the MIAA, they being the only ones
authorized to make withdrawals against the cash accounts of MIAA pursuant to
its board resolutions, conspiring, confederating and confabulating with each
other, did then and there wilfully, unlawfully, feloniously, and with intent to
defraud the government, take and misappropriate the amount of TWENTY FIVE
MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the
issuance of a manager.s check for said amount in the name of accused Luis A.
Tabuena chargeable against MIAA's Savings Account No. 274-500-354-3 in the
PNB Extension Office at the Manila International Airport in Pasay City,
purportedly as partial payment to the Philippine National Construction
Corporation (PNCC), the mechanics of which said accused Tabuena would
personally take care of, when both accused well knew that there was no
outstanding obligation of MIAA in favor of PNCC, and after the issuance of the
above-mentioned manager's check, accused Luis A. Tabuena encashed the
same and thereafter both accused misappropriated and converted the proceeds
thereof to their personal use and benefit, to the damage and prejudice of the
government in the aforesaid amount.
CONTRARY TO LAW.
xxx xxx xxx
That on or about the 29th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines, and within the jurisdiction of this
Honorable Court, accused Luis A. Tabuena and Adolfo M. Peralta, both public
officers, being then the General Manager and Acting Manager, Financial
Services Department, respectively, of the Manila International Airport Authority
(MIAA), and accountable for public funds belonging to the MIAA, they being the
only ones authorized to make withdrawals against the cash accounts of MIAA
pursuant to its board resolutions, conspiring, confederating and confabulating
with each other, did then and there wilfully, unlawfully, feloniously, and with intent
to defraud the government, take and misappropriate the amount of FIVE
MILLION PESOS (P5,000,000.00) from MIAA funds by applying for the issuance
of a manager's check for said amount in the name of accused Luis A. Tabuena
chargeable against MIAA's Savings Account No. 274-500- 354-3 in the PNB
Extension Office at the Manila International Airport in Pasay City, purportedly as
partial payment to the Philippine National Construction Corporation (PNCC), the
mechanics of which said accused Tabuena would personally take care of, when
both accused well knew that there was no outstanding obligation of MIAA in favor
of PNCC, and after the issuance of the above-mentioned manager's check,
accused Luis A. Tabuena encashed the same and thereafter both accused
misappropriated and converted the proceeds thereof to their personal use and
benefit, to the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
Gathered from the documentary and testimonial evidence are the following essential
antecedents:
Then President Marcos instructed Tabuena over the phone to pay directly to the president's
office and in cash what the MIAA owes the Philippine National Construction Corporation
(PNCC), to which Tabuena replied, "Yes, sir, I will do it." About a week later, Tabuena received
from Mrs. Fe Roa-Gimenez, then private secretary of Marcos, a Presidential Memorandum
dated January 8, 1986 (hereinafter referred to as MARCOS Memorandum) reiterating in black
and white such verbal instruction, to wit:
Office of the President
of the Philippines
Malacanang

MEMO TO: The General Manager


Manila International Airport Authority
You are hereby directed to pay immediately the Philippine National Construction
Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00)
PESOS in cash as partial payment of MIAA's account with said Company
mentioned in a Memorandum of Minister Roberto Ongpin to this Office dated
January 7, 1985 and duly approved by this Office on February 4, 1985.
Your immediate compliance is appreciated.
(Sgd.) FERDINAND
MARCOS. 4
The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto
Ongpin referred to in the MARCOS Memorandum, reads in full:
MEMORANDUM
For: The President
From: Minister Roberto V. Ongpin
Date: 7 January 1985
Subject: Approval of Supplemental Contracts and
Request for Partial Deferment of Repayment of
PNCC's Advances for MIA Development Project
May I request your approval of the attached recommendations of Minister Jesus
S. Hipolito for eight (8) supplemental contracts pertaining to the MIA
Development Project (MIADP) between the Bureau of Air Transport (BAT) and
Philippine National Construction Corporation (PNCC), formerly CDCP, as follows:
1. Supplemental Contract No. 12
Package Contract No. 2 P11,106,600.95
2. Supplemental Contract No. 13
5,758,961.52
3. Supplemental Contract No. 14
Package Contract No. 2 4,586,610.80
4. Supplemental Contract No. 15
1,699,862.69
5. Supplemental Contract No. 16
Package Contract No. 2 233,561.22
6. Supplemental Contract No. 17
Package Contract No. 2 8,821,731.08
7. Supplemental Contract No. 18
Package Contract No. 2 6,110,115.75
8. Supplemental Contract No. 3
Package Contract No. II 16,617,655.49
(xerox copies only; original memo was submitted to the Office of
the President on May 28, 1984)
In this connection, please be informed that Philippine National Construction
Corporation (PNCC), formerly CDCP, has accomplishment billings on the MIA
Development Project aggregating P98.4 million, inclusive of accomplishments for
the aforecited contracts. In accordance with contract provisions, outstanding
advances totalling P93.9 million are to be deducted from said billings which will
leave a net amount due to PNCC of only P4.5 million.
At the same time, PNCC has potential escalation claims amounting to P99 million
in the following stages of approval/evaluation:
Approved by Price Escalation Committee
(PEC) but pended for lack of funds P1.9 million
Endorsed by project consultants and
currently being evaluated by PEC 30.7 million
Submitted by PNCC directly to PEC
and currently under evaluation 66.5 million

Total P99.1 million
There has been no funding allocation for any of the above escalation claims due
to budgetary constraints.
The MIA Project has been completed and operational as far back as 1982 and
yet residual amounts due to PNCC have not been paid, resulting in undue
burden to PNCC due to additional cost of money to service its obligations for this
contract.
To allow PNCC to collect partially its billings, and in consideration of its pending
escalation billings, may we request for His Excellency's approval for a deferment
of the repayment of PNCC's advances to the extent of P30 million corresponding
to about 30% of P99.1 million in escalation claims of PNCC, of which P32.5
million has been officially recognized by MIADP consultants but could not be paid
due to lack of funding.
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of
existing MIA Project funds. This amount represents the excess of the gross
billings of PNCC of P98.4 million over the undeferred portion of the repayment of
advances of P63.9 million.
(Sgd.)
ROBE
RTO
V.
ONGPI
N
Ministe
r5
In obedience to President Marcos' verbal instruction and memorandum, Tabuena, with the help
of Dabao and Peralta, caused the release of P55 Million of MIAA funds by means of three (3)
withdrawals.
The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even
date signed by Tabuena and Dabao requesting the PNB extension office at the MIAA the
depository branch of MIAA funds, to issue a manager's check for said amount payable to
Tabuena. The check was encashed, however, at the PNB Villamor Branch. Dabao and the
cashier of the PNB Villamor branch counted the money after which, Tabuena took delivery
thereof. The P25 Million in cash were then placed in peerless boxes and duffle bags, loaded on
a PNB armored car and delivered on the same day to the office of Mrs. Gimenez located at
Aguado Street fronting Malacanang. Mrs. Gimenez did not issue any receipt for the money
received
Similar circumstances surrounded the second withdrawal/encashment and delivery of another
P25 Million, made on January 16, 1986.
The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was
Tabuena's co-signatory to the letter- request for a manager's check for this amount. Peralta
accompanied Tabuena to the PNB Villamor branch as Tabuena requested him to do the
counting of the P5 Million. After the counting, the money was placed in two (2) peerless boxes
which were loaded in the trunk of Tabuena's car. Peralta did not go with Tabuena to deliver the
money to Mrs. Gimenez' office at Aguado Street. It was only upon delivery of the P5 Million that
Mrs. Gimenez issued a receipt for all the amounts she received from Tabuena. The receipt,
dated January 30, 1986, reads:
Malacanang
Manila

RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE


MILLION PESOS (P55,000,000.00) as of the following dates:
Jan. 10 P 25,000,000.00
Jan. 16 25,000,000.00
Jan. 30 5,000,000.00
(
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The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves,
"out of the ordinary" and "not based on the normal procedure". Not only were there no vouchers
prepared to support the disbursement, the P55 Million was paid in cold cash. Also, no PNCC
receipt for the P55 Million was presented. Defense witness Francis Monera, then Senior
Assistant Vice President and Corporate Comptroller of PNCC, even affirmed in court that there
were no payments made to PNCC by MIAA for the months of January to June of 1986.
The position of the prosecution was that there were no outstanding obligations in favor of PNCC
at the time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena
and Peralta, in short, was that they acted in good faith. Tabuena claimed that he was merely
complying with the MARCOS Memorandum which ordered him to forward immediately to the
Office of the President P55 Million in cash as partial payment of MIAA's obligations to PNCC,
and that he (Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. Peralta for his
part shared the same belief and so he heeded the request of Tabuena, his superior, for him
(Peralta) to help in the release of P5 Million.
With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their
conviction, Tabuena and Peralta now set forth a total of ten (10) errors 6 committed by the
Sandiganbayan for this Court's consideration. It appears, however, that at the core of their plea
that we acquit them are the following:
1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and
2) they acted in good faith.
Anent the first proposition, Tabuena and Peralta stress that they were being charged with
intentional malversation, as the amended informations commonly allege that:
. . . accused . . . conspiring, confederating and other, then and there wilfully,
unlawfully, feloniously, and with intent to defraud the government, take and
misappropriated the amount of . . . .
But it would appear that they were convicted of malversation by negligence. In this
connection, the Court's attention is directed to p. 17 of the December 20, 1991
Resolution (denying Tabuena's and Peralta's motion for reconsideration) wherein the
Sandiganbayan said:
xxx xxx xxx
On the contrary, what the evidence shows is that accused Tabuena delivered the
P55 Million to people who were not entitled thereto, either as representatives of
MIAA or of the PNCC.
It proves that Tabuena had deliberately consented or permitted through
negligence or abandonment, some other person to take such public funds.
Having done so, Tabuena, by his own narration, has categorically demonstrated
that he is guilty of the misappropriation or malversation of P55 Million of public
funds. (Emphasis supplied.)
To support their theory that such variance is a reversible flaw, Tabuena and Peralta
argue that:
1) While malversation may be committed intentionally or by negligence, both modes cannot be
committed at the same time.
2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence
where the amended informations charged them with intentional malversation. 7
3) Their conviction of a crime different from that charged violated their constitutional right to be
informed of the accusation. 8
We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is "Cabello
v. Sandiganbayan" 9 where the Court passed upon similar protestations raised by therein
accused-petitioner Cabello whose conviction for the same crime of malversation was affirmed,
in this wise:
. . . even on the putative assumption that the evidence against petitioner yielded
a case of malversation by negligence but the information was for intentional
malversation, under the circumstances of this case his conviction under the first
mode of misappropriation would still be in order. Malversation is committed either
intentionally or by negligence. The dolo or the culpa present in the offense is only
a modality in the perpetration of the felony. Even if the mode charged differs from
the mode proved, the same offense of malversation is involved and conviction
thereof is proper. . . .
In Samson vs. Court of Appeals, et. al., we held that an accused charged with
willful or intentional falsification can validly be convicted of falsification through
negligence, thus:
While a criminal negligent act is not a simple modality of a willful crime, as we
held in Quizon vs. Justice of the Peace of Bacolor. G.R. No. L-6641, July 28,
1995, but a distinct crime in our Penal Code, designated as a quasi offense in
our Penal Code, it may however be said that a conviction for the former can be
had under an information exclusively charging the commission of a willful
offense, upon the theory that the greater includes the lesser offense. This is the
situation that obtains in the present case. Appellant was charged with willful
falsification but from the evidence submitted by the parties, the Court of Appeals
found that in effecting the falsification which made possible the cashing of the
checks in question, appellant did not act with criminal intent but merely failed to
take proper and adequate means to assure himself of the identity of the real
claimants as an ordinary prudent man would do. In other words, the information
alleges acts which charge willful falsification but which turned out to be not willful
but negligent. This is a case covered by the rule when there is a variance
between the allegation and proof, and is similar to some of the cases decided by
this Tribunal.
xxx xxx xxx
Moreover; Section 5, Rule 116, of the Rules of Court does not require that all the
essential elements of the offense charged in the information be proved, it being
sufficient that some of said essential elements or ingredients thereof be
established to constitute the crime proved. . . .
The fact that the information does not allege that the falsification was committed
with imprudence is of no moment for here this deficiency appears supplied by the
evidence submitted by appellant himself and the result has proven beneficial to
him. Certainly, having alleged that the falsification has been willful, it would be
incongruous to allege at the same time that it was committed with imprudence for
a charge of criminal intent is incompatible with the concept of negligence.
Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated
rationale and arguments also apply to the felony of malversation, that is, that an
accused charged with willful malversation, in an information containing
allegations similar to those involved in the present case, can be validly convicted
of the same offense of malversation through negligence where the evidence
sustains the latter mode of perpetrating the offense.
Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution
for malversation for it would negate criminal intent on the part of the accused. Thus, in the two
(2) vintage, but significantmalversation cases of "US v. Catolico" 10 and "US v. Elvina," 11 the
Court stressed that:
To constitute a crime, the act must, except in certain crimes made such by
statute, be accompanied by a criminal intent, or by such negligence or
indifference to duty or to consequences as, in law, is equivalent to criminal intent.
The maxim is actus non facit reum, nisi mens sit rea a crime is not committed
if the mind of the person performing the act complained of is innocent.
The rule was reiterated in "People v. Pacana," 12 although this case involved falsification
of public documents and estafa:
Ordinarily, evil intent must unite with an unlawful act for there to be a crime.
Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal
mind is wanting.
American jurisprudence echoes the same principle. It adheres to the view that criminal
intent in embezzlement is not based on technical mistakes as to the legal effect of a
transaction honestly entered into, and there can be no embezzlement if the mind of the
person doing the act is innocent or if there is no wrongful purpose. 13 The accused may
thus always introduce evidence to show he acted in good faith and that he had no
intention to convert. 14 And this, to our mind, Tabuena and Peralta had meritoriously
shown.
In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS
Memorandum we are swayed to give credit to his claim of having caused the disbursement of
the P55 Million solely by reason of such memorandum. From this premise flows the following
reasons and/or considerations that would buttress his innocence of the crime of malversation.
First. Tabuena had no other choice but to make the withdrawals, for that was what the
MARCOS Memorandum required him to do. He could not be faulted if he had to obey and
strictly comply with the presidential directive, and to argue otherwise is something easier said
than done. Marcos was undeniably Tabuena's superior the former being then the President
of the Republic who unquestionably exercised control over government agencies such as the
MIAA and PNCC. 15 In other words, Marcos had a say in matters involving inter-government
agency affairs and transactions, such as for instance, directing payment of liability of one entity
to another and the manner in which it should be carried out. And as a recipient of such kind of a
directive coming from the highest official of the land no less, good faith should be read on
Tabuena's compliance, without hesitation nor any question, with the MARCOS Memorandum.
Tabuena therefore is entitled to the justifying circumstance of "Any person who acts in
obedience to an order issued by a superior for some lawful purpose." 16 The subordinate-
superior relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the
order contained in the MARCOS Memorandum, as it has for its purpose partial payment of the
liability of one government agency (MIAA) to another (PNCC). However, the unlawfulness of the
MARCOS Memorandum was being argued, on the observation, for instance, that the Ongpin
Memo referred to in the presidential directive reveals a liability of only about P34.5 Million. The
Sandiganbayan in this connection said:
Exhibits "2" and "2-a" (pages 1 and 2 of the memorandum of Min. Ongpin to the
President dated January 7, 1985) were mainly:
a.) for the approval of eight Supplemental Contracts; and
b.) a request for partial deferment of payment by PNCC for advances made for
the MIAA Development Project, while at the same time recognizing some of the
PNCC's escalation billings which would result in making payable to PNCC the
amount of P34.5 million out of existing MIAA Project funds.
Thus:
"xxx xxx xxx
To allow PNCC to collect partially its billings, and in consideration
of ifs pending escalation billings, may we request for His
Excellency's approval for a deferment of repayment of PNCC's
advances to the extent of P30 million corresponding to about 30%
of P99.1 million in escalation claims of PNCC, of which P32.6
million has been officially recognized by MIADP consultants but
could not be paid due to lack of funding.
Our proposal will allow BAT to pay PNCC the amount of P34.5
million out of existing MIA Project funds. This amount represents
the excess of the gross billings of PNCC of P98.4 million over the
undeferred portion of the repayment of advances of P63.9 million."
While Min. Ongpin may have, therefore recognized the escalation claims of the
PNCC to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion
thereof was still in the stages of evaluation and approval, with only P32.6 million
having been officially recognized by the MIADP consultants.
If any payments were, therefore, due under this memo for Min. Ongpin (upon
which President Marcos' Memo was based) they would only be for a sum of up to
P34.5 million. 17
xxx xxx xxx
V. Pres. Marcos' order to Tabuena dated January 8, 1986 baseless.
Not only was Pres. Marcos' Memo (Exhibit "1") for Tabuena to pay
P55 million irrelevant, but it was actually baseless.
This is easy to see.
Exhibit "1" purports to refer itself to the Ongpin Memorandum
(Exhibit "2", "2-a"); Exhibit "1", however, speaks of P55 million to
be paid to the PNCC while Exhibit "2" authorized only P34.5
million. The order to withdraw the amount of P55 million exceeded
the approved payment of P34.5 million by P20.5 million. Min.
Ongpin's Memo of January 7, 1985 could not therefore serve as a
basis for the President's order to withdraw P55 million. 18
Granting this to be true, it will not nevertheless affect Tabuena's goad faith so as to
make him criminally liable. What is more significant to consider is that the MARCOS
Memorandum is patently legal (for on its face it directs payment of an outstanding
liability) and that Tabuena acted under the honest belief that the P55 million was a due
and demandable debt and that it was just a portion of a bigger liability to PNCC. This
belief is supported by defense witness Francis Monera who, on direct examination,
testified that:
ATTY ANDRES
Q Can you please show us in this Exhibit "7" and "7-a" where it is
indicated the receivables from MIA as of December 31, 1985?
A As of December 31, 1985, the receivables from MIA is shown
on page 2, marked as Exhibit "7-a", sir, P102,475.392.35
xxx xxx xxx 19
ATTY. ANDRES
Q Can you tell us, Mr. Witness, what these obligations represent?
WITNESS
A These obligations represent receivables on the basis of our
billings to MIA as contract-owner of the project that the Philippine
National Construction Corporation constructed. These are billings
for escalation mostly, sir.
Q What do you mean by escalation?
A Escalation is the component of our revenue billings to the
contract-owner that are supposed to take care of price increases,
sir.
xxx xxx xxx 20
ATTY ANDRES
Q When you said these are accounts receivable, do I understand
from you that these are due and demandable?
A Yes, sir. 21
Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of
its illegality, the subordinate is not liable, for then there would only be a mistake of fact
committed in good faith. 22 Such is the ruling in "Nassif v. People" 23 the facts of which, in
brief, are as follows:
Accused was charged with falsification of commercial document. A mere
employee of R.J. Campos, he inserted in the commercial document alleged to
have been falsified the word "sold" by order of his principal. Had he known or
suspected that his principal was committing an improper act of falsification, he
would be liable either as a co-principal or as an accomplice. However, there
being no malice on his part, he was exempted from criminal liability as he was a
mere employee following the orders of his principal. 24
Second. There is no denying that the disbursement, which Tabuena admitted as "out of the
ordinary", did not comply with certain auditing rules and regulations such as those pointed out
by the Sandiganbayan, to wit:
a) [except for salaries and wages and for commutation of leaves] all disbursements above
P1,000.00 should be made by check (Basic Guidelines for Internal Control dated January 31,
1977 issued by COA)
b) payment of all claims against the government had to be supported with complete
documentation (Sec. 4, P.D. 1445, "State Auditing Code of the Philippines). In this connection,
the Sandiganbayan observed that:
There were no vouchers to authorize the disbursements in question. There were
no bills to support the disbursement. There were no certifications as to the
availability of funds for an unquestionably staggering sum of P55 Million. 25
c) failure to protest (Sec. 106, P.D. 1445)
But this deviation was inevitable under the circumstances Tabuena was in. He did not
have the luxury of time to observe all auditing procedures of disbursement considering
the fact that the MARCOS Memorandum enjoined his "immediate compliance" with the
directive that he forward to the President's Office the P55 Million in cash. Be that as it
may, Tabuena surely cannot escape responsibility for such omission. But since he was
acting in good faith, his liability should only be administrative or civil in nature, and not
criminal. This follows the decision in "Villacorta v. People" 26 where the Court, in
acquitting therein accused municipal treasurer of Pandan, Catanduanes of malversation
after finding that he incurred a shortage in his cash accountability by reason of his
payment in good faith to certain government personnel of their legitimate wages leave
allowances, etc., held that:
Nor can negligence approximating malice or fraud be attributed to petitioner. If he
made wrong payments, they were in Good faith mainly to government personnel,
some of them working at the provincial auditor's and the provincial treasurer's
offices And if those payments ran counter to auditing rules and regulations, they
did not amount to a criminal offense and he should only be held administratively
or civilly liable.
Likewise controlling is "US v. Elvina" 27 where it was held that payments in good faith do
not amount to criminal appropriation, although they were made with insufficient vouchers
or improper evidence. In fact, the Dissenting Opinion's reference to certain provisions in
the revised Manual on Certificate of Settlement and Balances apparently made to
underscore Tabuena's personal accountability, as agency head, for MIAA funds
would all the more support the view that Tabuena is vulnerable to civil sanctions only
Sections 29.2 and 295 expressly and solely speak of "civilly liable," describe the kind of
sanction imposable on a superior officer who performs his duties with "bad faith, malice
or gross negligence"' and on a subordinate officer or employee who commits "willful or
negligent acts . . . which are contrary to law, morals, public policy and good customs
even if he acted under order or instructions of his superiors."
Third. The Sandiganbayan made the finding that Tabuena had already converted and
misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the
PNCC, proceeding from the following definitions/concepts of "conversion":
"Conversion", as necessary element of offense of embezzlement, being the
fraudulent "appropriation to one's own use' of another's property which does not
necessarily mean to one's personal advantage but every attempt by one person
to dispose of the goods of another without right as if they were his own is
conversion to his own use." (Terry v. Water Improvement Dist. No. 5 of Tulsa
County, 64 p, 2d 904, 906, 179 Okl. 106)
At p. 207, Words
and Phrases,
Permanent Edition
9A.
Conversion is any interference subversive of the right of the owner of personal
property to enjoy and control it. The gist of conversion is the usurpation of the
owner 's right of property, and not the actual damages inflicted. Honesty of
purpose is not a defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)
At
page
168,
id.
xxx xxx xxx
The words "convert" and "misappropriate" connote an act of using or disposing of
another's property as if it were one's own. They presuppose that the thing has
been devoted to a purpose or use different from that agreed upon. To
appropriate to one's own use includes not only conversion to one's personal
advantage but every attempt to dispose of the property of another without right.
People vs.
Webber, 57 O.G.
p. 2933, 2937
By placing them at the disposal of private persons without due authorization or
legal justification, he became as guilty of malversation as if he had personally
taken them and converted them to his own use.
People vs. Luntao,
50 O.G.
p. 1182, 1183 28
We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena
"to pay immediately the Philippine National Construction Corporation, thru this office the
sum of FIFTY FIVE MILLION. . .", and that was what Tabuena precisely did when he
delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the
Office of the President inasmuch as Mrs. Gimenez was Marcos' secretary then.
Furthermore, Tabuena had reasonable ground to believe that the President was entitled
to receive the P55 Million since he was certainly aware that Marcos, as Chief Executive,
exercised supervision and control over government agencies. And the good faith of
Tabuena in having delivered the money to the President's office (thru Mrs. Gimenez), in
strict compliance with the MARCOS Memorandum, was not at all affected even if it later
turned out that PNCC never received the money. Thus, it has been said that:
Good faith in the payment of public funds relieves a public officer from the crime
of malversation.
xxx xxx xxx
Not every unauthorized payment of public funds is malversation. There is
malversation only if the public officer who has custody of public funds should
appropriate the same, or shall take or misappropriate or shall consent, or through
abandonment or negligence shall permit any other person to take such public
funds. Where the payment of public funds has been made in good faith, and
there is reasonable ground to believe that the public officer to whom the fund had
been paid was entitled thereto, he is deemed to have acted in good faith, there is
no criminal intent, and the payment, if it turns out that it is unauthorized, renders
him only civilly but not criminally liable. 29
Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was
to siphon-out public money for the personal benefit of those then in power, still, no criminal
liability can be imputed to Tabuena. There is no showing that Tabuena had anything to do
whatsoever with the execution of the MARCOS Memorandum. Nor is there proof that he profited
from the felonious scheme. In short, no conspiracy was established between Tabuena and the
real embezzler/s of the P5 Million. In the cases of "US v. Acebedo" 30 and "Ang v.
Sandiganbayan", 31 both also involving the crime of malversation, the accused therein were
acquitted after the Court arrived at a similar finding of non-proof of conspiracy. In "Acebedo",
therein accused, as municipal president of Palo, Leyte, was prosecuted for and found guilty by
the lower court of malversation after being unable to turn over certain amounts to the then
justice of the peace. It appeared, however, that said amounts were actually collected by his
secretary Crisanto Urbina. The Court reversed Acebedo's conviction after finding that the sums
were converted by his secretary Urbina without the knowledge and participation of Acebedo.
The Court said, which we herein adopt:
No conspiracy between the appellant and his secretary has been shown in this
case, nor did such conspiracy appear in the case against Urbina. No guilty
knowledge of the theft committed by the secretary was shown on the part of the
appellant in this case, nor does it appear that he in any way participated in the
fruits of the crime. If the secretary stole the money in question without the
knowledge or consent of the appellant and without negligence on his part, then
certainly the latter can not be convicted of embezzling the same money or any
part thereof. 32
In "Ang", accused-petitioner, as MWSS bill collector, allowed part of his collection to be
converted into checks drawn in the name of one Marshall Lu, a non-customer of MWSS,
but the checks were subsequently dishonored. Ang was acquitted by this Court after
giving credence to his assertion that the conversion of his collections into checks were
thru the machinations of one Lazaro Guinto, another MWSS collector more senior to
him. And we also adopt the Court's observation therein, that:
The petitioner's alleged negligence in allowing the senior collector to convert
cash collections into checks may be proof of poor judgment or too trusting a
nature insofar as a superior officer is concerned but there must be stronger
evidence to show fraud, malice, or other indicia of deliberateness in the
conspiracy cooked up with Marshall Lu. The prosecution failed to show that the
petitioner was privy to the conspirational scheme. Much less is there any proof
that he profited from the questioned acts. Any suspicions of conspiracy, no
matter how sincerely and strongly felt by the MWSS, must be converted into
evidence before conviction beyond reasonable doubt may be imposed. 33
The principles underlying all that has been said above in exculpation of Tabuena equally
apply to Peralta in relation to the P5 Million for which he is being held accountable, i.e.,
he acted in good faith when he, upon the directive of Tabuena, helped facilitate the
withdrawal of P5 Million of the P55 Million of the MIAA funds.
This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly
executed order. Indeed, compliance to a patently lawful order is rectitude far better than
contumacious disobedience. In the case at bench, the order emanated from the Office of the
President and bears the signature of the President himself, the highest official of the land. It
carries with it the presumption that it was regularly issued. And on its face, the memorandum is
patently lawful for no law makes the payment of an obligation illegal. This fact, coupled with the
urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis
essentia. Besides, the case could not be detached from the realities then prevailing As aptly
observed by Mr Justice Cruz in his dissenting opinion:
We reject history in arbitrarily assuming that the people were free during the era
and that the Judiciary was independent and fearless. We know it was not: even
the Supreme Court at that time was not free. This is an undeniable fact that we
can not just blink away. Insisting on the contrary would only make our sincerity
suspect and even provoke scorn for what can only be described as our incredible
credulity. 34
But what appears to be a more compelling reason for their acquittal is the violation of the
accused's basic constitutional right to due process. "Respect for the Constitution", to borrow
once again Mr. Justice Cruz's words, "is more important than securing a conviction based on a
violation of the rights of the accused." 35 While going over the records, we were struck by the
way the Sandiganbayan actively took part in the questioning of a defense witness and of the
accused themselves. Tabuena and Peralta may not have raised this as an error, there is
nevertheless no impediment for us to consider such matter as additional basis for a reversal
since the settled doctrine is that an appeal throws the whole case open to review, and it
becomes the duty of the appellate court to correct such errors as may be found in the judgment
appealed from whether they are made the subject of assignments of error or not. 36
Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the
testimony of Francis Monera. then Senior Assistant Vice President and Corporate Comptroller
of PNCC, Atty. Andres asked sixteen (16) questions on direct examination. Prosecutor Viernes
only asked six (6) questions on cross-examination in the course of which the court interjected a
total of twenty-seven (27) questions (more than four times Prosecutor Viernes' questions and
even more than the combined total of direct and cross-examination questions asked by the
counsels) After the defense opted not to conduct any re-direct examination, the court further
asked a total of ten (10) questions. 37 The trend intensified during Tabuena's turn on the witness
stand. Questions from the court after Tabuena's cross-examination totalled sixty-seven (67). 38
This is more than five times Prosecutor Viernes' questions on cross-examination (14), and more
than double the total of direct examination and cross-examination questions which is thirty-one
(31) [17 direct examination questions by Atty. Andres plus 14 cross-examination questions by
Prosecutor Viernes]. In Peralta's case, the Justices, after his cross-examination, propounded a
total of forty-one (41) questions. 39
But more importantly, we note that the questions of the court were in the nature of cross
examinations characteristic of confrontation, probing and insinuation. 40 (The insinuating type
was best exemplified in one question addressed to Peralta, which will be underscored.) Thus we
beg to quote in length from the transcripts pertaining to witness Monera, Tabuena and Peralta.
(Questions from the Court are marked with asterisks and italicized for emphasis.)
(MONERA)
(As a background, what was elicited from his direct examination is that the PNCC had
receivables from MIAA totalling P102,475,392.35, and although such receivables were largely
billings for escalation, they were nonetheless all due and demandable. What follows are the
cross-examination of Prosecutor Viernes and the court questions).
CROSS-EXAMINATION BY PROS. VIERNES
Q You admit that as shown by these Exhibits "7" and "7- a", the
items here represent mostly escalation billings. Were those
escalation billings properly transmitted to MIA authorities?
A I don't have the documents right now to show that they were
transmitted, but I have a letter by our President, Mr. Olaguer,
dated July 6, 1988, following up for payment of the balance of our
receivables from MIA, sir.
*AJ AMORES
*Q This matter of escalation costs, is it not a matter for a
conference between the MIA and the PNCC for the determination
as to the correct amount?
A I agree, your Honor. As far as we are concerned, our billings are
what we deemed are valid receivables And, in fact, we have been
following up for payment.
*Q This determination of the escalation costs was it accepted as
the correct figure by MIA ?
A I don't have any document as to the acceptance by MIA your
Honor, but our company was able to get a document or a letter by
Minister Ongpin to President Marcos, dated January 7, 1985, with
a marginal note or approval by former President Marcos.
*PJ GARCHITORENA
*Q Basically, the letter of Mr. Ongpin is to what effect?
A The subject matter is approval of the supplementary contract
and request for partial deferment of payment for MIA Development
Project, your Honor.
*Q It has nothing to do with the implementation of the escalation
costs?
A The details show that most of the accounts refer to our
escalations, your Honor.
*Q Does that indicate the computation for escalations were
already billed or you do not have any proof of that
A Our subsidiary ledger was based on billings to MIA and this
letter of Minister Ongpin appears to have confirmed our billings to
MIA, your Honor.
*AJ AMORES
*Q Were there partial payments made by MIA an these escalation
billings?
A Based on records available as of today, the P102 million was
reduced to about P56.7 million, if my recollection is correct, your
Honor.
*PJ GARCHITORENA
*Q Were the payments made before or after February 1986, since
Mr. Olaguer is a new entrant to your company?
WITNESS
A The payments were made after December 31, 1985 but I think
the payments were made before the entry of our President, your
Honor. Actually, the payment was in the form of: assignments to
State Investment of about P23 million; and then there was P17.8
million application against advances made or formerly given; and
there were payments to PNCC of about P2.6 million and there
was a payment for application on withholding and contractual
stock of about P1 million; that summed up to P44.4 million all in
all. And you deduct that from the P102 million, the remaining
balance would be about P57 million.
*PJ GARCHITORENA
*Q What you are saying is that, for all the payments made on this
P102 million, only P2 million had been payments in cash ?
A Yes, your Honor.
*Q The rest had been adjustments of accounts, assignments of
accounts, or offsetting of accounts?
A Yes, your Honor.
*Q This is as of December 31, 1985?
A The P102 million was as of December 31, 1985, your Honor, but
the balances is as of August 1987.
*Q We are talking now about the P44 million, more or less, by
which the basic account has been reduced. These reductions,
whether by adjustment or assignment or actual delivery of cash,
were made after December 31, 1985?
WITNESS
A Yes, your Honor.
*Q And your records indicate when these adjustments and
payments were made?
A Yes, your Honor.
*AJ AMORES
*Q You said there were partial payments before of these
escalation billings. Do we get it from you that there was an
admission of these escalation costs as computed by you by MIA,
since there was already partial payments?
A Yes, your Honor.
*Q How were these payments made before February 1986, in
case or check, if there were payments made?
A The P44 million payments was in the form of assignments, your
Honor.
*PJ GARCHITORENA
*Q The question of the Court is, before December 31, 1985, were
there any liquidations made by MIA against these escalation
billings?
A I have not reviewed the details of the record, your Honor. But
the ledger card indicates that there were collections on page 2 of
the Exhibit earlier presented. It will indicate that there were
collections shown by credits indicated on the credit side of the
ledger.
*AJ AMORES
*Q Your ledger does not indicate the manner of giving credit to the
MIA with respect to the escalation billings. Was the payment in
cash or just credit of some sort before December 31, 1985?
A Before December 31, 1985, the reference of the ledger are
official receipts and I suppose these were payments in cash, your
Honor.
*Q Do you know how the manner of this payment in cash was
made by MIA?
A I do not know, your Honor.
*PJ GARCHITORENA
*Q But your records will indicate that?
A The records will indicate that, your Honor.
*Q Except that you were not asked to bring them?
A Yes, your Honor.
*Q At all events, we are talking of settlement or partial liquidation
prior to December 31, 1985?
A Yes, your Honor.
*PJ GARCHITORENA
*Q Subsequent thereto, we are talking merely of about P44
million?
A Yes, your Honor, as subsequent settlements.
*Q After December 31, 1985?
A Yes, your Honor.
*Q And they have liquidated that, as you described it, by way of
assignments, adjustments, by offsets and by P2 million of cash
payment?
A Yes, your Honor.
*AJ AMORES
*Q Your standard operating procedure before December 31, 1985
in connection with or in case of cash payment, was the payment in
cash or check?
A I would venture to say it was by check, your Honor.
*Q Which is the safest way to do it?
A Yes, your Honor.
"PJ GARCHITORENA
*Q And the business way?
A Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You mentioned earlier about the letter of former Minister Ongpin
to the former President Marcos, did you say that letter concurs
with the escalation billings reflected in Exhibits "7" and "7-a"?
WITNESS
A The Company or the management is of the opinion that this
letter, a copy of which we were able to get, is a confirmation of the
acceptance of our billings, sir.
Q This letter of Minister Ongpin is dated January 7, 1985, whereas
the entries of escalation billings as appearing in Exhibit "7" are
dated June 30, 1985, would you still insist that the letter of
January 1985 confirms the escalation billings as of June 1985?
A The entries started June 30 in the ledger card. And as of
December 31, 1985, it stood at P102 million after payments were
made as shown on the credit side of the ledger. I suppose hat the
earlier amount, before the payment was made, was bigger and
therefore I would venture to say that the letter of January 7, 1985
contains an amount that is part of the original contract account.
What are indicated in the ledger are escalation billings.
*PJ GARCHITORENA
*Q We are talking about the letter of Minister Ongpin?
A The letter of Minister Ongpin refers to escalation billings, sir.
*Q As of what date?
A The letter is dated January 7, 1985, your Honor.
PJ GARCHITORENA
Continue.
PROS. VIERNES
Q In accordance with this letter marked Exhibit "7" and "7-a", there
were credits made in favor of MIA in July and November until
December 1985. These were properly credited to the account of
MIA?
WITNESS
A Yes, sir.
Q In 1986. from your records as appearing in Exhibit "7-a", there
were no payments made to PNCC by MIA for the months of
January to June 1986?
A Yes, sir.
Q And neither was the amount of P22 million remitted to PNCC by
MIA?
A Yes, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ AMORES
*Q From your records, for the month of January 1986, there was
no payment of this escalation account by MIA?
WITNESS
A Yes, your Honor. But on page 2 of Exhibit "7" there appears an
assignment of P23 million, that was on September 25, 1986.
*Q But that is already under the present administration?
A After February 1986, your Honor.
*Q But before February, in January 1986, there was no payment
whatsoever by MIA to PNCC?
A Per record there is none appearing, your Honor.
*PJ GARCHITORENA
*Q The earliest payment, whether by delivery of cash equivalent
or of adjustment of account, or by assignment, or by offsets, when
did these payments begin?
A Per ledger card, there were payments in 1985, prior to
December 31, 1985, your Honor.
*Q After December 31, 1985?
A There appears also P23 million as credit, that is a form of
settlement, your Honor.
*Q This is as of September 25?
A Yes, your Honor. There were subsequent settlements P23
million is just part of the P44 million.
*Q And what you are saying is that, PNCC passed the account to
State Investment. In other words, State Investment bought the
credit of MIA?
A Yes, your Honor.
*Q And the amount of credit or receivables sold by PNCC to State
Investment is P23 million?
A Yes, your Honor.
*Q Is there a payback agreement?
A I have a copy of the assignment to State Investment but I have
not yet reviewed the same, your Honor.
*AJ AMORES
*Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?
A There is still a balance of receivables from MIA as evidenced by
a collection letter by our President dated July 6, 1988, your Honor.
The amount indicated in the letter is P55 million.
PJ GARCHITORENA
Any clarifications you would like to make Mr. Estebal?
ATTY ESTEBAL
None, your Honor.
PJ GARCHITORENA
Mr. Viernes?
PROS VIERNES
No more, your Honor.
PJ GARCHITORENA
The witness is excused. Thank you very much Mr. Monera. . . . 41
(TABUENA)
(In his direct examination, he testified that he caused the preparation of the checks totalling P55
Million pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in
cash on the three (3) dates as alleged in the information to Marcos' private secretary Mrs.
Jimenez at her office at Aguado Street, who thereafter issued a receipt. Tabuena also denied
having used the money for his own personal use.)
CROSS-EXAMINATION BY PROS. VIERNES
Q The amount of P55 million as covered by the three (3) checks
Mr. Tabuena, were delivered on how many occasions?
A Three times, sir.
Q And so, on the first two deliveries, you did not ask for a receipt
from Mrs. Gimenez?
A Yes, sir.
Q It was only on January 30, 1986 that this receipt Exhibit "3" was
issued by Mrs. Gimenez?
A Yes, sir.
*PJ GARCHITORENA
*Q So January 30 is the date of the last delivery?
A I remember it was on the 31st of January, your Honor What
happened is that, I did not notice the date placed by Mrs.
Gimenez.
Q Are you telling us that this Exhibit "3" was incorrectly dated
A Yes, your Honor.
*Q Because the third delivery was on January 31st and yet the
receipt was dated January 30?
A Yes, your Honor.
*Q When was Exhibit "3" delivered actually by Mrs. Gimenez?
A January 31st, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You did not go to Malacaang on January 30, 1986?
A Yes, sir, I did not.
Q Do you know at whose instance this Exhibit "3" was prepared?
A I asked for it, sir.
Q You asked for it on January 31, 1986 when you made the last
delivery?
A Yes, sir.
Q Did you see this Exhibit "3" prepared in the Office of Mrs.
Gimenez?
A Yes, sir.
Q This receipt was typewritten in Malacaang stationery. Did you
see who typed this receipt?
A No, sir. What happened is that, she went to her room and when
she came out she gave me that receipt.
*PJ GARCHITORENA
Q What you are saying is, you do not know who typed that
receipt?
WITNESS
A Yes, your Honor.
*Q Are you making an assumption that she typed that receipt?
A Yes, your Honor, because she knows how to type.
*Q Your assumption is that she typed it herself?
A Yes, your Honor.
PJ GARCHITORENA
Proceed.
PROS. VIERNES
Q This receipt was prepared on January 31, although it is dated
January 30?
A Yes, sir, because I was there on January 31st.
Q In what particular place did Mrs. Gimenez sign this Exhibit "3"?
A In her office at Aguado, sir.
Q Did you actually see Mrs. Gimenez signing this receipt Exhibit
"3"?
A No, sir, I did not. She was inside her room.
Q So, she was in her room and when she came out of the room,
she handed this receipt to you already typed and signed?
A Yes, sir.
*AJ HERMOSISIMA
*Q So, how did you know this was the signature of Mrs. Gimenez?
WITNESS
A Because I know her signature, your Honor. I have been
receiving letters from her also and when she requests for
something from me. Her writing is familiar to me.
So, when the Presiding Justice asked you as to how you knew
that this was the signature of Mrs. Gimenez and you answered
that you saw Mrs. Gimenez signed it, you were not exactly
truthful?
A What I mean is, I did not see her sign because she went to her
room and when she came out, she gave me that receipt, your
Honor.
PJ GARCHITORENA
That is why you have to wait for the question to be finished and
listen to it carefully. Because when I asked you, you said you saw
her signed it. Be careful Mr. Tabuena.
WITNESS
Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Was there another person inside the office of Mrs. Gimenez when
she gave you this receipt Exhibit "3"?
A Nobody, sir.
Q I noticed in this receipt that the last delivery of the sum of P55
million was made on January 30. Do we understand from you that
this date January 30 is erroneous?
A Yes, sir, that January 30 is erroneous. I noticed it only
afterwards. This should be January 31st, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY. ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ HERMOSISIMA
*Q Why did you not ask for a receipt on the first and second
deliveries?
A Because I know that the delivery was not complete yet, your
Honor.
*PJ GARCHITORENA
*Q So you know that the total amount to be delivered was P55
million')
A Yes, your Honor.
PJ GARCHITORENA
Response by Mr. Peralta to the testimony of Mr. Tabuena.
ATTY. ESTEBAL
We are adopting the testimony of Mr. Tabuena and we will also
present the accused, your Honor.
*AJ DEL ROSARIO
"Q From whom did you receive the President's memorandum
marked Exhibit "1"? Or more precisely, who handed you this
memorandum?
A Mrs. Fe Roa Gimenez, your Honor.
Q Did you ask Mrs, Fe Gimenez for what purpose the money was
being asked?
A The money was in payment for the debt of the MIA Authority to
PNCC, your Honor.
*Q If it was for the payment of such obligation why was there no
voucher prepared to cover such payment? In other words, why
was the delivery of the money not covered by any voucher?
A The instruction to me was to give it to the Office of the
President, your Honor.
*PJ GARCHITORENA
*Q Be that as it may, why was there no voucher to cover this
particular disbursement?
A I was just told to bring it to the Office of the President, your
Honor.
*AJ DEL ROSARIO
*Q Was that normal procedure for you to pay in cash to the Office
of the President for obligations of the MIAA in payment of its
obligation to another entity?
WITNESS
A No, your Honor, I was just following the Order to me of the
President.
*PJ GARCHITORENA
*Q So the Order was out of the ordinary?
A Yes, your Honor.
*AJ DEL ROSARIO
Did you file any written protest with the manner with which such
payment was being ordered?
A No, your Honor.
*Q Why not?
A Because with that instruction of the President to me, I followed,
your Honor.
*Q Before receiving this memorandum Exhibit "1", did the former
President Marcos discuss this maitter with you?
A Yes, your Honor.
*Q When was that?
A He called me up earlier, a week before that, that he wants to me
pay what I owe the PNCC directly to his office in cash, your
Honor.
*PJ GARCHITORENA
*Q By "I OWE ", you mean the MIAA?
WITNESS
A Yes, your Honor.
*AJ DEL ROSARIO
*Q And what did you say in this discussion you had with him?
A I just said, "Yes, sir, I will do it/"
*Q Were you the one who asked for a memorandum to be signed
by him?
A No, your Honor.
*Q After receiving that verbal instruction for you to pay MIAA's
obligation with PNCC, did you not on your own accord already
prepare the necessary papers and documents for the payment of
that obligation?
A He told me verbally in the telephone that the Order for the
payment of that obligation is forthcoming, your Honor. I will
receive it.
*Q Is this the first time you received such a memorandum from the
President?
A Yes, your Honor.
*Q And was that the last time also that you received such a
memorandum?
A Yes, your Honor.
*Q Did you not inquire, if not from the President, at least from Mrs.
Gimenez why this procedure has to be followed instead of the
regular procedure?
A No, sir.
*AJ DEL ROSARIO
*Q Why did you not ask?
A I was just ordered to do this thing, your Honor.
*AJ HERMOSISIMA
*Q You said there was an "I OWE YOU"?
A Yes, your Honor.
*Q Where is that "I OWE YOU" now?
A All I know is that we owe PNCC the amount of P99.1 million,
your Honor. MIAA owes PNCC that amount.
*Q Was this payment covered by receipt from the PNCC?
A It was not covered, your Honor.
*Q So the obligation of MIAA to PNCC was not, for the record,
cancelled by virtue of that payment?
A Based on the order to me by the former President Marcos
ordering me to pay that amount to his office and then the
mechanics will come after, your Honor.
*Q Is the PNCC a private corporation or government entity?
A I think it is partly government, your Honor.
*PJ GARCHITORENA
*Q That is the former CDCP?
A Yes, your Honor.
*AJ HERMOSISIMA
*Q Why were you not made to pay directly, to the PNCC
considering that you are the Manager of MIA at that time and the
PNCC is a separate corporation, not an adjunct of Malacaang?
WITNESS
A I was just basing it from the Order of Malacanang to pay PNCC
through the Office of the President, your Honor.
*Q Do you know the President or Chairman of the Board of
PNCC?
A Yes, your Honor.
"Q How was the obligation of MIAA to PNCC incurred. Was it
through the President or Chairman of the Board?
A PNCC was the one that constructed the MIA, your Honor.
*Q Was the obligation incurred through the President or Chairman
of the Board or President of the PNCC? In other words, who
signed the contract between PNCC and MIAA?
A Actually, we inherited this obligation, your Honor. The one who
signed for this was the former Director of BAT which is General
Singzon. Then when the MIA Authority was formed, all the
obligations of BAT were transferred to MIAA. So the
accountabilities of BAT were transferred to MIAA and we are the
ones that are going to pay, your Honor.
*Q Why did you agree to pay to Malacaang when your obligation
was with the PNCC?
A I was ordered by the President to do that, your Honor.
*Q You agreed to the order of the President notwithstanding the
fact that this was not the regular course or Malacaang was not
the creditor?
A I saw nothing wrong with that because that is coming, from the
President, your Honor.
*Q The amount was not a joke, amounting to P55 million, and you
agreed to deliver money in this amount through a mere receipt
from the private secretary?
A I was ordered by the President, your Honor.
*PJ GARCHITORENA
*Q There is no question and it can be a matter of judicial
knowledge that you have been with the MIA for sometime?
A Yes, your Honor.
*Q Prior to 1986?
A Yes, your Honor.
*Q Can you tell us when you became the Manager of MIA?
A I became Manager of MIA way back, late 1968, your Honor.
*Q Long before the MIA was constituted as an independent
authority?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And by 1986, you have been running the MIA for 18 years?
WITNESS
A Yes, your Honor.
*Q And prior to your Joining the MIA, did you ever work for the
government?
A No, your Honor.
*Q So, is it correct for us to say that your joining the MIA in 1968
as its Manager was your first employment ,with the government?
A Yes, your Honor.
*Q While you were Manager of MIA, did you have other
subsequent concurrent positions in the government also?
A I was also the Chairman of the Games and Amusement Board,
your Honor.
*Q But you were not the executive or operating officer of the
Games and Amusement Board?
A I was, your Honor.
*Q As Chairman you were running the Games and Amusement
Board?
A Yes, your Honor.
*Q What else, what other government positions did you occupy
that time?
A I was also Commissioner of the Game Fowl Commission, your
Honor.
*PJ GARCHITORENA
*Q That is the cockfighting?
WITNESS
A Yes, your Honor.
*Q Here, you were just a member of the Board?
A Yes, your Honor.
*Q So you were not running the commission?
A Yes, your Honor.
*Q Any other entity?
A No more, your Honor.
*Q As far as you can recall, besides being the Manager of the MIA
and later the MIAA for approximately 18 years, you also ran the
Games and Amusement Board as its executive officer?
A Yes, your Honor.
*Q And you were a commissioner only of the Came Fowl
Commission?
A Yes, your Honor.
*Q Who was running the commission at that time?
A I forgot his name, but he retired already, your Honor.
*Q All of us who joined the government, sooner or later, meet with
our Resident COA representative?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And one of our unfortunate experience (sic) is when the COA
Representative comes to us and says: "Chairman or Manager, this
cannot be". And we learn later on that COA has reasons for its
procedure and we learn to adopt to them?
WITNESS
A Yes, your Honor.
*Q As a matter of fact, sometimes we consider it inefficient,
sometimes we consider it foolish, but we know there is reason in
this apparent madness of the COA and so we comply?
A Yes, your Honor.
*Q And more than anything else the COA is ever anxious for
proper documentation and proper supporting papers?
A Yes, your Honor.
*Q Sometimes, regardless of the amount?
A Yes, your Honor.
*Q Now, you have P55 million which you were ordered to deliver
in cash, not to the creditor of the particular credit, and to be
delivered in armored cars to be acknowledged only by a receipt of
a personal secretary. After almost 18 years in the government
service and having had that much time in dealing with COA
people, did it not occur to you to call a COA representative and
say, "What will I do here?"
A I did not, your Honor.
*PJ GARCHITORENA
*Q Did you not think that at least out of prudence, you should have
asked the COA for some guidance on this matter so that you will
do it properly?
WITNESS
A What I was going to do is, after those things I was going to tell
that delivery ordered by the President to the COA, your Honor.
*Q That is true, but what happened here is that you and Mr.
Dabao or you and Mr. Peralta signed requests for issuance of
Manager's checks and you were accommodated by the PNB
Office at Nichols without any internal documentation to justify your
request for Manager's checks?
A Yes, your Honor.
*Q Of course we had no intimation at that time that Mr. Marcos will
win the elections but even then, the Daily Express, which was
considered to be a newspaper friendly to the Marcoses at that
time, would occasionally come with so-called expose, is that not
so?
A Yes, your Honor.
*Q And worst, you had the so-called mosquito press that would
always come out with the real or imagined scandal in the
government and place it in the headline, do you recall that?
A Yes, your Honor.
*PJ GARCHITORENA
Under these circumstances, did you not entertain some
apprehension that some disloyal employees might leak you out
and banner headline it in some mosquito publications like the
Malaya at that time?
WITNESS
A No, your Honor.
*PJ GARCHITORENA
I bring this up because we are trying to find out different areas of
fear. We are in the government and we in the government fear the
COA and we also fear the press. We might get dragged into press
releases on the most innocent thing. You believe that?
A Yes, your Honor.
*Q And usually our best defense is that these activities are
properly documented?
A Yes, your Honor.
*Q In this particular instance, your witnesses have told us about
three (3) different trips from Nichols to Aguado usually late in the
day almost in movie style fashion. I mean, the money being
loaded in the trunk of your official car and then you had a back-up
truck following your car?
A Yes, your Honor.
*Q Is that not quite a fearful experience to you ?
A I did not think of that at that time, your Honor.
*PJ GARCHITORENA
"Q You did not think it fearful to be driving along Roxas Boulevard
with P25 million in the trunk of your car?
WITNESS
A We have security at that time your Honor.
ATTY. ANDRES
Your Honor, the P25 million was in the armored car; only P5
million was in the trunk of his car.
*PJ GARCHITORENA
Thank you for the correction. Even P1 million only. How much
more with P5 million inside the trunk of your car, was that not a
nervous experience?
A As I have said, your Honor, I never thought of that.
PJ GARCHITORENA
Thank you very much, Mr. Tabuena. You are excused. . . . 42
(PERALTA)
(He testified on direct examination that he co-signed with Tabuena a memorandum request for
the issuance of the Manager's Check for P5 Million upon order of Tabuena and that he [Peralta]
was aware that MIAA had an existing obligation with PNCC in the amount of around P27 Million.
He affirmed having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5
Million, but denied having misappropriated for his own benefit said amount or any portion
thereof.)
CROSS-EXAMINATION BY PROS VIERNES
Q Will you please tell the Honorable Court why was it necessary
for you to co-sign with Mr. Tabuena the request for issuance of
Manager's check in the amount of P5 million?
A At that time I was the Acting Financial Services Manager of
MIAA, sir, and all withdrawals of funds should have my signature
because I was one of the signatories at that time.
Q As Acting Financial Services Manager of MIAA, you always co-
sign with Mr. Tabuena in similar requests for the issuance of
Manager's checks by the PNB?
A That is the only occasion I signed, sir.
Q Did you say you were ordered by Mr. Tabuena to sign the
request?
A Yes, sir, and I think the order is part of the exhibits and based
on that order, I co-signed in the request for the issuance of
Manager's check in favor of Mr. Luis Tabuena.
PROS VIERNES
Q Was there a separate written order for you to co-sign with Mr.
Tabuena?
WITNESS
A Yes, sir, an order was given to me by Mr. Tabuena.
*PJ GARCHITORENA
Was that marked in evidence?
WITNESS
Yes, your Honor.
*PJ GARCHITORENA
What exhibit?
WITNESS
I have here a copy, your Honor. This was the order and it was
marked as exhibit "N".
PROS VIERNES
It was marked as Exhibit "M", your Honor.
Q How did you know there was an existing liability of MIAA in
favor of PNCC at that time?
A Because prior to this memorandum of Mr. Tabuena, we
prepared the financial statement of MIAA as of December 31,
1985 and it came to my attention that there was an existing liability
of around P27,999,000.00, your Honor.
Q When was that Financial Statement prepared?
A I prepared it around January 22 or 24, something like that, of
1986, sir.
Q Is it your usual practice to prepare the Financial Statement after
the end of the year within three (3) weeks after the end of the
year?
A Yes, sir, it was a normal procedure for the MIAA to prepare the
Financial Statement on or before the 4th Friday of the month
because there will be a Board of Directors Meeting and the
Financial Statement of the prior month will be presented and
discussed during the meeting.
*PJ GARCHITORENA
*Q This matter of preparing Financial Statement was not an
annual activity but a monthly activity?
A Yes, your Honor.
*Q This Financial Statement you prepared in January of 1986
recapitulated the financial condition as of the end of the year?
A Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You made mention of a request for Escalation Clause by former
Minister Ongpin. Did you personally see that request?
A When this order coming from Mr. Tabuena was shown to me, I
was shown a copy, sir. I have no file because I just read it.
Q It was Mr. Tabuena who showed you the letter of Minister
Ongpin?
A Yes, sir.
*PJ GARCHITORENA
And that will be Exhibit?
ATTY. ANDRES
Exhibit "2" and "2-A", your Honor.
PROS VIERNES
Q You also stated that you were with Mr. Tabuena when you
withdrew the amount of P5 million from the PNB Extension Office
at Villamor?
A Yes, sir.
Q Why was it necessary for you to go with him on that occasion?
A Mr. Tabuena requested me to do the counting by million, sir. So
what I did was to bundle count the P5 million and it was placed in
two (2) peerless boxes.
Q Did you actually participate in the counting of the money by
bundles?
A Yes, sir.
Q Bundles of how much per bundle?
A If I remember right, the bundles consisted of P100s and P50s,
sir.
Q No P20s and P10s?
A Yes, sir, I think it was only P100s and P50s.
*PJ GARCHITORENA
*Q If there were other denominations, you can not recall?
A Yes, your Honor.
PROS VIERNES
Q In how many boxes were those bills placed?
A The P5 million were placed in two (2) peerless boxes,
Q And you also went with Mr. Tabuena to Aguado?
A No, sir, I was left behind at Nichols. After it was placed at the
trunk of the car of Mr. Tabuena, I was left behind and I went back
to my office at MIA.
Q But the fact is that, this P5 million was withdrawn at passed
5:00 o'clock in the afternoon?
A I started counting it I think at around 4:30, sir. It was after office
hours. But then I was there at around 4:00 o'clock and we started
counting at around 4:30 p.m. because they have to place it in a
room, which is the office of the Manager at that time.
Q And Mr. Tabuena left for Malacaang after 5:00 o'clock in the
afternoon of that date?
A Yes, sir. After we have counted the money, it was placed in the
peerless boxes and Mr. Tabuena left for Malacanang.
PROS VIERNES
Q And you yourself, returned to your office at MIA?
WITNESS
A Yes, sir.
Q Until what time do you hold office at the MIA?
A Usually I over-stayed for one (1) or two (2) hours just to finish
the paper works in the office, sir.
Q So, even if it was already after 5:00 o'clock in the afternoon, you
still went back to your office at MIA?
A Yes, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY. ESTEBAL
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ DEL ROSARIO
*Q Did you not consider it as odd that your obligation with the
PNCC had to be paid in cash?
WITNESS
A Based on the order of President Marcos that we should pay in
cash, it was not based on the normal procedure, your Honor.
*Q And, as Acting Financial Services Manager, you were aware
that all disbursements should be covered by vouchers?
A Yes, your Honor, the payments should be covered by vouchers.
But then, inasmuch as what we did was to prepare a request to
the PNB, then this can be covered by Journal Voucher also.
*Q Was such payment of P5 million covered by a Journal
Voucher?
A Yes, your Honor.
*Q Did you present that Journal Voucher here in Court?
A We have a copy, your Honor.
*Q Do you have a copy or an excerpt of that Journal Voucher
presented in Court to show that payment?
A We have a copy of the Journal Voucher, your Honor.
*Q Was this payment of P5 million ever recorded in a cashbook or
other accounting books of MIAA ?
A The payment of P5 million was recorded in a Journal Voucher,
your Honor.
*PJ GARCHITORENA
*Q In other words, the recording was made directly to the Journal?
WITNESS
A Yes, your Honor.
*Q There are no other separate documents as part of the
application for Manager's Check?
A Yes, your Honor, there was none.
*AJ DEL ROSARIO
*Q After the payment was made, did your office receive any
receipt from PNCC?
A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs.
Fe Roa Gimenez, your Honor. Inasmuch as the payment should
be made through the Office of the president, I accepted the receipt
given by Mrs. Fe Gimenez to Mr. Tabuena.
*Q After receiving that receipt, did you prepare the necessary
supporting documents, vouchers, and use that receipt as a
supporting document to the voucher?
A Your Honor, a Journal Voucher was prepared for that.
*Q How about a disbursement voucher?
A Inasmuch as this was a request for Manager's check, no
disbursement voucher was prepared, your Honor.
*AJ DEL ROSARIO
*Q Since the payment was made on January 31, I986, and that
was very close to the election held in that year, did you not
entertain any doubt that the amounts were being used for some
other purpose?
ATTY. ESTEBAL
With due respect to the Honorable Justice, we are objecting to the
question on the ground that it is improper.
*AJ DEL ROSARIO
I will withdraw the question.
*PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I don't
think there was any basis, your Honor.
*PJ GARCHITORENA
Considering the withdrawal of the question, just make the
objection on record.
*AJ HERMOSISIMA
*Q As a Certified Public Accountant and Financial Manager of the
MIAA, did you not consider it proper that a check be issued only
after it is covered by a disbursement voucher duly approved by
the proper authorities ?
A Your Honor, what we did was to send a request for a Manager's
check to the PNB based on the request of Mr. Tabuena and the
order of Mr. Tabuena was based on the Order of President
Marcos.
*PJ GARCHITORENA
*Q In your capacity as Financial Services Manager of the MIAA,
did you not think it proper to have this transaction covered by a
disbursement voucher?
WITNESS
A Based on my experience, payments out of cash can be made
through cash vouchers, or even though Journal Vouchers, or even
through credit memo, your Honor.
*AJ HERMOSISIMA
*Q This was an obligation of the MIAA to the PNCC. Why did you
allow a disbursement by means of check in favor of Mr. Luis
Tabuena, your own manager?
A We based the payment on the order of Mr. Tabuena because
that was the order of President Marcos to pay PNCC through the
Office of the President and it should be paid in cash, your Honor.
*Q You are supposed to pay only on legal orders. Did you
consider that legal?
ATTY. ESTEBAL
With due respect to the Honorable Justice, the question calls for a
conclusion of the witness.
*PJ GARCHITORENA
Considering that tire witness is an expert, witness may answer.
WITNESS
A The order of president Marcos was legal at that time because
the order was to pay PNCC the amount of P5 million through the
Office of the President and it should be paid in cash, your Honor.
And at that time, I know for a fact also that there was an existing
P.D. wherein the President of the Republic of the Philippines can
transfer funds from one office to another and the PNCC is a quasi
government entity at that time.
*AJ HERMOSISIMA
*Q Are you saying that this transaction was made on the basis of
that P.D. which you referred to?
A I am not aware of the motive of the President, but then since he
is the President of the Philippines, his order was to pay the PNCC
through the Office of the President, your Honor.
*Q As Financial Manager, why did you allow a payment in cash
when ordinarily payment of an obligation of MIAA is supposed to
be paid in check?
A I caused the payment through the name of Mr. Tabuena
because that was the order of Mr. Tabuena and also he received
an order coming from the President of the Philippines at that time,
your Honor.
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the
Journals to correct certain statements of accounts earlier made in
the same journal?
In other words, really what you are telling us is that, a Journal
Voucher is to explain a transaction was otherwise not recorded.
WITNESS
A Yes, your Honor.
*Q Therefore, when you said that a Journal Voucher here is
proper, you are saying it is proper only because of the exceptional
nature of the transactions?
A Yes, your Honor.
*Q In other words, as an Accountant, you would not normally
authorize such a movement of money unless it is properly
documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the
question is misleading because what the witness stated is. . .
*PJ GARCHITORENA
Be careful in your objection because the witness understands the
language you are speaking, and therefore, you might be coaching
him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say
that. . .
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness
stated earlier is that the Journal Voucher in this particular case
was supported, your Honor.
*PJ GARCHITORENA
Overruled, may answer.
WITNESS
A The transaction was fully documented since we have the order
of the General Manager at that time and the order of President
Marcos, your Honor.
*Q Are you saying the Order of the General Manager is an
adequate basis for the movement of money?
A Yes, your Honor, because at that time we have also a recorded
liability of P27 million.
*Q we are not talking of whether or not there was a liability. What
we are saying is, is the order of the General Manager by itself
adequate with no other supporting papers, to justify the movement
of funds?
A Yes, your Honor. The order of Mr. Luis Tabuena was based on
our existing liability of P27,931,000.00, inasmuch as we have that
liability and I was shown the order of President Marcos to pay P5
million through the Office of the President, I considered the order
of Mr. Luis Tabuena, the order of President Marcos and also the
existing liability of P27 million sufficient to pay the amount of P5
million. Inasmuch as there is also an escalation clause of P99.1
million, the payment of P5 million is fully covered by those existing
documents.
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are
not asking you whether or not there was valid obligation. We are
not asking you about the escalation clause. We are asking you
whether or not this particular order of Mr. Tabuena is an adequate
basis to justify the movement of funds?
WITNESS
When we pay, your Honor, we always look for the necessary
documents and at that time I know for a fact that there was this
existing liability.
*PJ GARCHITORENA
When we ask questions and when we answer them, we must
listen to the question being asked and not to whatever you wanted
to say. I know you are trying to protect yourself. We are aware of
your statement that there are all of these memoranda.
*Q By your disbursement of such amount, you are saying that the
order of Mr. Tabuena by itself is adequate?
WITNESS
A As far as I am concerned, your Honor, inasmuch as we have a
liability and I was shown the Order of President Marcos to pay
PNCC through his office, I feel that the order of the General
Manager, the order of President Marcos, and also the
memorandum of Minister Ongpin are sufficient to cause the
payment of P5 million.
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to
transfer funds from one department to another, is this not the one
that refers to the realignment of funds insofar as the Appropriation
Act is concerned?
WITNESS
A Because at that time, your Honor, I have knowledge that the
President is authorized through a Presidential Decree to transfer
government funds from one office to another.
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts of the
MIAA covered by the Appropriation Act?
A I think the liability was duly recorded and appropriations to pay
the amount is. . . . (interrupted)
*PJ GARCHITORENA
*Q Tell me honestly, is your answer responsive to the question or
are you just throwing words at us in the hope that we will forget
what the question is?
A No, your Honor.
*Q Are you telling us that the debts incurred by MIAA ate covered
by the Appropriations Act so that the payment of this debt would
be in the same level as the realignment of funds authorized the
President? Or are you telling as you did not read the Decree?
A I was aware of that Decree, your Honor.
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the
Decrees authorizing this movement of funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was
not an officer of the MIAA, was he?
A No, your Honor.
*Q In fact, for purposes of internal control, you have different
officers and different officials in any company either government
or private, which are supposed to check and balance each other,
is it not?
A Yes, your Honor.
*Q So that when disbursements of funds are made, they are made
by authority of not only one person alone so that nobody will
restrain him?
A Yes, your Honor.
*Q These checks and balances exist in an entity so that no one
person can dispose of funds in any way he likes?
A Yes, your Honor.
*Q And in fact, the purpose for having two (2) signatories to
documents and negotiable documents is for the same purpose?
A Yes, your Honor.
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
WITNESS
A Yes, your Honor.
*Q In your case, you would be the counter check for Mr.
Tabuena?
A Yes, your Honor.
*Q In the other words, even if Mr. Tabuena is the Manager, you as
Financial Services Manager and as counter signatory are in a
position to tell Mr. Tabuena, "I am sorry, you are my superior but
this disbursement is not proper and, therefore, I will not sign it"., if
in your opinion the disbursement is not proper?
A Yes, your Honor.
*Q Therefore, as a co-signatory, you expected to exercise your
judgment as to the propriety of a particular transactions?
A Yes, your Honor.
*Q And this is something you know by the nature of your position
and because you are a Certified Public Accountant?
A Yes, your Honor.
*AJ DEL ROSARIO
*Q You admit that the payment of P5 million and P50 million were
unusual in the manner with which they were disposed?
A Yes, your Honor.
*Q Did you submit a written protest to the manner in which such
amount was being disposed of?
A A written protest was not made, your Honor, but I called the
attention of Mr. Tabuena that since this payment was upon the
order of President Marcos, then I think as President he can do
things which are not ordinary.
*Q If you did not prepare a written protest, did you at least prepare
a memorandum for the record that this was an extra-ordinary
transaction?
A I called the attention of Mr. Tabuena that this was an extra-
ordinary transaction and no written note, your Honor.
PJ GARCHITORENA
43
Thank you very much Mr. Peralta, you are excused. . . .
This Court has acknowledged the right of a trial judge to question witnesses with a view to
satisfying his mind upon any material point which presents itself during the trial of a case over
which he presides. 44 But not only should his examination be limited to asking "clarificatory"
questions, 45 the right should be sparingly and judiciously used; for the rule is that the court
should stay out of it as much as possible, neither interfering nor intervening in the conduct of the
trial. 46 Here, these limitations were not observed. Hardly in fact can one avoid the impression
that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for
the prosecution in proving the case against Tabuena and Peralta when the Justices cross-
examined the witnesses, their cross- examinations supplementing those made by Prosecutor
Viernes and far exceeding the latter's questions in length. The "cold neutrality of an impartial
judge" requirement of due process was certainly denied Tabuena and Peralta when the court,
with its overzealousness, assumed the dual role of magistrate and advocate. In this connection,
the observation made in the Dissenting Opinion to the effect that the majority of this Court was
"unduly disturbed" with the number of court questions alone, is quite inaccurate. A substantial
portion of the TSN was incorporated in the majority opinion not to focus on "numbers" alone, but
more importantly to show that the court questions were in the interest of the prosecution and
which thus depart from that common standard of fairness and impartiality. In fact, it is very
difficult to be, upon review of the records, confronted with "numbers" without necessarily
realizing the partiality of the Court. In "US v. De Sisto" (2 Cir., 1961, 289 F 2d 833), for example,
a new trial was required because the trial judge, as in this case, indulged in extensive
questioning of defendant and his witnesses, and the reviewing court also had to amplify on
"numbers" to bolster this. It was pointed out in the "De Sisto" case that the judge asked 3,115
questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judge's
questions to the defendant De Sisto totalled 306, the prosecutor's 347, and the defense
counsel's, 201. After referring to these figures, the court stated:
. . . It is indeed an impressive proportion, but no such mathematical computation
is of itself determinative. However, taking all this in conjunction with the long and
vigorous examination of the defendant himself by the judge, and the repeated
belittling by the judge of defendant's efforts to establish the time that Fine left the
pier, we fear that in its zeal for arriving at the facts the court here conveyed to the
jury too strong an impression of the court's belief in the defendant's probable guilt
to permit the jury freely to perform its own function of independent determination
of the facts. . . .
The majority believes that the interference by the Sandiganbayan Justices was just too
excessive that it cannot be justified under the norm applied to a jury trial, or even under
the standard employed in a non-jury trial where the judge is admittedly given more
leeway in propounding questions to clarify points and to elicit additional relevant
evidence. At the risk of being repetitious, we will amplify on this via some specific
examples. Based on the evidence on record, and on the admission of Tabuena himself,
the P55 million was delivered to the President's Office thru Mrs. Gimenez, in obedience
to the Presidential directive. One Sandiganbayan Justice, however, hurled the following
questions to Peralta:
AJ DEL ROSARIO
Q: Since the payment was made on January 31, 1986, and that
was very close to the election held in that year, did you not
entertain any doubt that the amounts were being used for some
other purposes?
ATTY. ESTEBAL
With due respect to the Honorable Justice, We are objecting to the
question on the ground that it is improper.
AJ DEL ROSARIO
I will withdraw the question.
PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I don't
think there was any basis, Your Honor.
PJ GARCHITORENA
Considering the withdrawal of the question, just make the
objection on record.
Nothing from the preceding questions of counsels or of the court would serve as basis
for this question. How then, can this be considered even relevant? What is the
connection between the payment made to the President's office and the then
forthcoming presidential "snap election"? In another instance, consider the following
questions of Presiding Justice Garchitorena:
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the
Journals to correct certain statements of accounts earlier made in
the same journal?
xxx xxx xxx
*Q In other words, really what you are telling us is that, a Journal
Voucher is to explain a transaction was otherwise not recorded.
xxx xxx xxx
*Q Therefore, when you said that a Journal Voucher here is
proper, you are saying it is proper only because of the exceptional
nature of the transactions?
xxx xxx xxx
*Q In other words, as an Accountant, you would not normally
authorize such a movement of money unless it is properly
documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the
question is misleading because what the witness stated is . . .
*PJ GARCHITORENA
Be careful in your objection because the witness understands the
language you are speaking, and therefore, you might be coaching
him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say
that . . .
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness
stated earlier is that the Journal Voucher in this particular case
was supported, your Honor.
*PJ GARCHITORENA
Overruled may answer.
WITNESS
A The transaction was fully documented since we have the order
of the General Manager at that time and the order of President
Marcos, your Honor.
*Q Are you saying the Order of the General Manager is an
adequate basis for the movement of money?
*Q We are not talking of whether or not there was a liability. What
we are saying is, is the order of the General Manager by itself
adequate with no other supporting papers, to justify the movement
of funds?
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are
not asking you whether or not there was valid obligation. We are
not asking you about the escalation clause. We are asking you
whether or not this particular order of Mr. Tabuena is an adequate
basis to justify the movement of funds?
*PJ GARCHITORENA
When we ask questions and when we answer them, we must
listen to the question being asked and not to whatever you wanted
to say. I know you are trying to protect yourself. We are aware of
your statement that there are all of these memoranda.
*Q By your disbursement of such amount, you are saying that the
order of Mr. Tabuena by itself is adequate?
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to
transfer funds from one department to another, is this not the one
that refers to the realignment of funds insofar as the Appropriation
Act is concerned?
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts of the
MIAA covered by the Appropriation Act?
*PJ GARCHITORENA
*Q Tell me honestly, is your answer responsive to the question or
are you just throwing words at us in the hope that we will forget
what the question is?
xxx xxx xxx
*Q Are you telling us that the debts incurred by MIAA are covered
by the Appropriations Act so that the payment of this debt would
be in the same level as the realignment of funds authorized the
President? Or are you telling as you did not read the Decree?
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the
Decrees authorizing this movement of funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was
not an officer of the MIAA, was he?
*Q In fact, for purposes of internal control, you have different in
officers and different officials in any company either government
or private, which are supposed to check and balance each other,
is it not?
*Q So that when disbursements of funds are made, they are made
by authority of not only one person alone so that nobody will
restrain him?
*Q These checks and balances exist in an entity so that no one
person can dispose of funds in any way he likes?
*Q And in fact, the purpose for having two (2) signatories to
documents and negotiable documents is for the same purpose?
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
*Q In your case, you would be the counter check for Mr.
Tabuena?
*Q In other words, even if Mr. Tabuena is the Manager, you as
Financial Services Manager and as counter signatory are in a
position to tell Mr. Tabuena, "I am sorry, you are my superior but
this disbursement is not proper and, therefore, I will not sign it.", if
in your opinion the disbursement is not proper?
*Q Therefore, as co-signatory, you are expected to exercise your
judgment as to the propriety of a particular transaction ?
*Q And this is something you know by the nature of your position
and because you are a Certified Public Accountant? 47
How can these questions be considered clarificatory when they clearly border more on
cross-examination questions? Thus, the Dissenting Opinion's focus on the distinction
between the two kinds of trial to justify the Sandiganbayan's active participation in the
examination of petitioners Tabuena and Peralta and witness Monera, with due respect,
appears insignificant to this case. Let it, therefore, be emphasized anew that:
A trial judge should not participate in the examination of witnesses as to create
the impression that he is allied with the prosecution. 48
We doubt not that the sole motive of the learned judge was to ascertain the truth
of the transaction, but it is never proper for a judge to discharge the duties of a
prosecuting attorney. However anxious a judge may be for the enforcement of
the law, he should always remember that he is as much judge in behalf of the
defendant accused of crime, and whose liberty is in jeopardy, as he is judge in
behalf of the state, for the purpose of safeguarding the interests of society. 49
Ordinarily it is not good practice for the presiding judge himself to examine
witnesses at length. The circumstances may be such in a given case as to justify
the court in so doing. . . . This court, however, has more than once said that the
examination of witnesses is the more appropriate function of counsel, and the
instances are rare and the conditions exceptional which will justify the presiding
judge in conducting an extensive examination. It is always embarrassing for
counsel to object to what he may deem improper questions by the court. Then, in
conducting a lengthy examination, it would be almost impossible for the judge to
preserve a judicial attitude. While he is not a mere figurehead or umpire in a trial,
and it is his duty to see that justice is done, he will usually not find it necessary to
conduct such examinations. The extent to which this shall be done must largely
be a matter of discretion, to be determined by the circumstances of each
particular case, but in so doing he must not forget the function of the judge and
assume that of an advocate. . . 50
While it is true that the manner in which a witness shall be examined is largely in
the discretion of the trial judge, it must be understood that we have not adopted
in this country the practice of making the presiding judge the chief inquisitor. It is
better to observe our time-honored custom of orderly judicial procedure, even at
the expense of occasional delays. . . . The judge is an important figure in the trial
of a cause, and while he has the right, and it is often his duty, to question
witnesses to the end that justice shall prevail, we can conceive of no other
reason, for him to take the trial of the cause out of the hands of counsel. 51
The examination of witnesses is the more appropriate function of counsel, and it
is believed the instances are rare and the conditions exceptional in a high degree
which will justify the presiding judge in entering upon and conducting an
extended examination of a witness, and that the exercise of a sound discretion
will seldom deem such action necessary or advisable. 52
He [the judge] may properly intervene in a trial of a case to promote expedition,
and prevent unnecessary waste of time, or to clear up some obscurity, but he
should bear in mind that his undue interference, impatience, or participation in,
the examination of witnesses, or a severe attitude on his part toward witnesses,
especially those who are excited or terrified by the unusual circumstances of a
trial, may tend to prevent the proper presentation of the cause, or the
ascertainment of the truth in respect thereto. 53
The impartiality of the judge his avoidance of the appearance of becoming the
advocate of either one side or the other of the pending controversy is a
fundamental and essential rule of special importance in criminal cases. . . 54
Our courts, while never unmindful of their primary duty to administer justice,
without fear or favor, and to dispose of these cases speedily and in as
inexpensive a manner as is possible for the court and the parties, should refrain
from showing any semblance of one-sided or more or less partial attitude in order
not to create any false impression in the minds of the litigants. For obvious
reasons, it is the bounden duty of all to strive for the preservation of the people's
faith in our courts. 55
Time and again this Court has declared that due process requires no less than
the cold neutrality of an impartial judge. Bolstering this requirement, we have
added that the judge must not only be impartial but must also appear to be
impartial, to give added assurance to the parties that his decision will be just. The
parties are entitled to no less than this, as a minimum guaranty of due process. 56
We are well aware of the fear entertained by some that this decision may set a dangerous
precedent in that those guilty of enriching themselves at the expense of the public would be able
to escape criminal liability by the mere expedient of invoking "good faith". It must never be
forgotten, however, that we render justice on a case to case basis, always in consideration of
the evidence that is presented. Thus, where the evidence warrants an acquittal, as in this case,
we are mandated not only by the dictates of law but likewise of conscience to grant the same.
On the other hand, it does not follow that all those similarly accused will necessarily be
acquitted upon reliance on this case as a precedent. For the decision in this case to be a
precedent, the peculiar circumstances and the evidence that led to the petitioner's acquittal
must also be present in subsequent cases.
Furthermore, as between a mere apprehension of a "dangerous precedent" and an actual
violation of constitutionally enshrined rights, it is definitely the latter that merits our immediate
attention. For the most dangerous precedent arises when we allow ourselves to be carried away
by such fears so that it becomes lawful to sacrifice the rights of an accused to calm the fearful.
In our eagerness to bring to justice the malefactors of the Marcos regime, we must not succumb
to the temptation to commit the greatest injustice of visiting the sins of the wrongdoers upon an
innocent.
WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M.
Peralta are hereby ACQUITTED of the crime of malversation as defined and penalized under
Article 217 of the Revised Penal Code. The Sandiganbayan Decision of October 12, 1990 and
the Resolution dated December 20, 1991 are REVERSED and SET ASIDE.
SO ORDERED.
Narvasa, C.J., Vitug, Kapunan and Mendoza, JJ., cocnur.
Regalado, Bellosillo, and Torres, Jr., JJ., pro hac vice.
Hermosisima, Jr,., J., took no part.

Separate Opinions

DAVIDE, JR., J., dissenting:


Last 20 September 1996 in Regala v. Sandiganbayan, 1 this Court erected a barrier to the
constitutionally mandated task to recover ill-gotten wealth and in the punishment of those who
dirtied their hands with it. This the Court did by impliedly granting immunity from civil suit or
liability under an expanded interpretation of the lawyer-client privilege, lawyers who were
alleged to have acted as co-conspirators or dummies of certain parties in the acquisition of such
wealth.
The acquittal decreed by the majority in the cases under consideration places another obstacle
to such recovery and punishment by granting immunity from any criminal liability those who
were ordered by then President Marcos to disburse government funds for alleged payment of
obligations. This is the immediate impression anyone can get from the following sweeping
pronouncement in the ponencia. 2
In the case at bench, the order emanated from the office of the President and
bears the signature of the President himself, the highest official of the land. It
carries with it the presumption that it was regularly issued. And on its face, the
memorandum is patently lawful for no law makes the payment of an obligation
illegal. This fact, coupled with the urgent tenor for its execution constrains one to
act swiftly without question. Obedientia est legis essentia. . . .
What this suggests is that no one could disobey then President Marcos, a suggestion
made more eloquent with the quotation of the dissenting opinion of Mr. Justice Cruz in
Development Bank of the Philippines v. Pundogar. 3 That dissent cannot be used to
justify the petitioners' "obedience," otherwise, this Court would thus overturn the majority
opinion in the said case and adopt the dissent as the new rule.
Henceforth, all those similarly situated as the appellants or those who could simply provide any
reason for their compelled obedience to Mr. Marcos can go scot-free. The meaning of EDSA
and its message for history would thus be obliterated. The acquittal then perpetuates a sad day
for this Court a day of mourning for those who fought against the dictatorship and of triumph
and joy for the dictator's collaborators, nominees, associates, and friends.
I cannot join the majority in these cases.
My analysis of the ponencia indicates that the acquittal is based on the following:
1. The accused-appellants merely acted in obedience to an order
by a superior for some lawful purpose; hence, they incur no
criminal liability pursuant to Article 11(6) of the Revised Penal
Code.
2. Even granting that the order was not for a lawful purpose, they
acted in good faith.
3. Their basic constitutional right to due process was violated by
the way the Sandiganbayan actively took part in the questioning of
a defense witness and of the accused themselves.
I
I shall first take up the third.
The ponencia admits that the appellants did not raise as an issue the Sandiganbayan's violation
of their right to due process; nevertheless, it ruled that such failure is not an impediment to the
consideration of the violation "as additional basis for a reversal since the settled doctrine is that
an appeal throws the whole case open to review, and it becomes the duty of the appellate court
to correct such errors as may be found in the judgment appealed from whether they are made
the subject of assignments of error or not. 4
I beg to disagree.
First, there is no showing at all that the extensive participation by the Justices of the
Sandiganbayan in questioning the appellants and their witness indicated prejudgment of guilt,
bias, hatred, or hostility against the said appellants. On the contrary, the quoted portions of the
questions propounded by the Justices manifest nothing but a sincere desire to ferret out the
facts to arrive at the truth which are crucial in the determination of the innocence or guilt of the
appellants. These Justices, as trial magistrates, have only exercised one of the inherent rights
of a judge in the exercise of judicial function. What this Court stated eighty-three years ago in
United States v. Hudieres 5 needs repeating:
It is very clear, however, from a review of the whole proceedings that the only
object of the trial judge in propounding these questions was to endeavor as far as
possible to get at the truth as to the facts to which the witnesses were testifying.
The right of a trial judge to question the witnesses with a view to satisfying his
mind upon any material point which presents itself during the trial of a case over
which he presides is too well established to need discussion. The trial judges in
this jurisdiction are judges of both the law and the facts, and they would be
negligent in the performance of their duties if they permitted a miscarriage of
justice as a result of a failure to propound a proper question to a witness which
might develop some material fact upon which the judgment of the case should
turn. So in a case where a trial judge sees that the degree of credit which he is to
give the testimony of a given witness may have an important bearing upon the
outcome, there can be no question that in the exercise of a sound discretion he
may put such questions to the witness as will enable him to formulate a sound
opinion as to the ability or willingness of the witness to tell the truth. The
questions asked by the trial judge in the case at bar were in our opinion entirely
proper, their only purpose being to clarify certain obscure phases of the case;
and while we are inclined to agree with counsel that some of the observations of
the trial judge in the course of his examination might well have been omitted,
there is no reason whatever to believe that the substantial rights of the
defendants were in anywise prejudiced thereby.
That the appellants themselves did not find any impropriety in the conduct of the Justices, or
that if they did they find nothing therein to prejudice their right to due process is best proven by
their failure to assign it as error.
Second, even granting arguendo that the conduct of the Justices constituted such a violation,
the appellants are forever estopped from raising that issue on ground of waiver. This Court
would risk an accusation of undue partiality for the appellants were it to give them premium for
their torpor and then reward them with an acquittal. Such waiver is conclusively proven in these
cases. From the quoted portions of the testimonies of the witnesses for the appellants, it is clear
that their counsel did not object to, or manifest on record his misgivings on, the active
participation of the Justices in the examination (or cross-examination) of the witnesses. Nothing
could have prevented the counsel for the appellants from doing so. Then, too, as correctly
pointed out in the ponencia, they made no assignment of error on the matter.
In our jurisdiction, rights may be waived unless the waiver is contrary to law, public order, public
policy, morals, or good customs, or is prejudicial to a third person with a right recognized by law.
6

In People v. Donato, 7 this Court made the following statement on what rights may be waived:
As to what rights and privileges may be waived, the authority is settled:
. . . the doctrine of waiver extends to rights and privileges of any
character, and, since the word "waiver" covers every conceivable
right, it is the general rule that a person may waive any matter
which affects his property, and any alienable right or privilege of
which he is the owner or which belongs to him or to which he is
legally entitled, whether secured by contract, conferred with
statute, or guaranteed by constitution, provided such rights and
privileges rest in the individual, are intended for his sole benefit,
do not infringe on the rights of others, and further provided the
waiver of the right or privilege is not forbidden by law, and does
not contravene public policy; and the principle is recognized that
everyone has a right to waive, and agree to waive, the advantage
of a law or rule made solely for the benefit and protection of the
individual in his private capacity, if it can be dispensed with and
relinquished without infringing on any public right, and without
detriment to the community at large. . . .
Although the general rule is that any right or privilege conferred by
statute or guaranteed by constitution may be waived, a waiver in
derogation of a statutory right is not favored, and a waiver will be
inoperative and void if it infringes on the rights of others, or would
be against public policy or morals and the public interest may be
waived.
While it has been stated generally that all personal rights
conferred by statute and guaranteed by constitution may be
waived, it has also been said that constitutional provisions
intended to protect property may be waived, and even some of the
constitutional rights created to secure personal liberty are subjects
of waiver. 8
In Commonwealth vs. Petrillo, 9 it was held:
Rights guaranteed to one accused of a crime fall naturally into two
classes: (a) those in which the state, as well as the accused, is
interested; and (b) those which are personal to the accused, which
are in the nature of personal privileges. Those of the first class
cannot be waived; those of the second may be.
It is "competent for a person to waive a right guaranteed by the Constitution, and
to consent to action which would be invalid if taken against his will. 10
This Court has recognized waivers of constitutional rights such as, for example,
the right against unreasonable searches and seizures; 11 the right to counsel and
to remain silent; 12 and the right to be heard. 13
Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed
by its Bill of Rights. Section 12(1) of Article III thereof on the right to remain silent
and to have a competent and independent counsel, preferably of his own choice
states:
. . . These rights cannot be waived except in writing and in the
presence of counsel.
This provision merely particularizes the form and manner of the waiver; it,
nevertheless, clearly suggests that the other rights may be waived in some other
form or manner provided such waiver will not offend Article 6 of the Civil Code.
We hereby rule that the right to bail is another of the constitutional rights which
can be waived. It is a right which is personal to the accused and whose waiver
would not be contrary to law, public order, public policy, morals, or good
customs, or prejudicial to a third person with a right recognized by law.
In the cases below, the perceived violation, if at all it existed, was not of the absolute totality of
due process, but more appropriately of the right to an impartial trial, which is but an aspect of
the guarantee of due process. 14 I submit that the right to an impartial trial is waivable.
II
I also disagree with the view of the majority that all the requisites of the sixth justifying
circumstance in Article 11 of the Revised Penal Code are present. I submit that the 8 January
1986 Memorandum of President Marcos can by no means be considered a "lawful" order to pay
P55 million to the PNCC as alleged partial payment of the MIAA's account to the former. The
alleged basis of such Memorandum is the 7 January 1985 Memorandum of Trade and Industry
Minister Roberto Ongpin, which even confirms the absence of any factual basis for the order of
payment of P55 million:
In this connection, please be informed that Philippine National Construction
Corporation (PNCC), formerly CDCP, has accomplishment billings on the MIA
Development Project aggregating P98.4 million, inclusive of accomplishments for
the aforecited contracts. In accordance with contract provisions, outstanding
advances totalling P93.9 million are to be deducted from said billings which will
leave a net amount due to PNCC of only P4.5 million, thus:
At the same time, PNCC has potential escalation claims amounting to P99 million
in the following states of approved/evaluation:
Approved by Price Escalation Committee
(PEC) but pending for lack of funds P 1.9 million
Endorsed by project consultants and
currently being evaluated by PEC 30.7 million
Submitted by PNCC directly to PEC
and currently under evaluation 66.5 million

T o t a l P99.1 million
There has been no funding allocation for any of the above escalation claims due
to budgetary constraints.
The MIA Project has been completed and operational as far back as 1982 and
yet residual amounts due to PNCC have not been paid, resulting in undue
burden to PNCC due to additional cost of money to service its obligations for this
contract.
To allow PNCC to collect partially its billings, and in consideration of its pending
escalation billings, may we request for His Excellency's approval for a deferment
of the repayment of PNCC's advances to the extent of P30 million corresponding
to about 30% of P99.1 million in escalation claims of PNCC, of which P32.5
million has been officially recognized by MIADP consultants but could not be paid
due to lack of fundings.
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of
existing MIA Project funds. This amount represents the excess of the gross
billings of PNCC of P98.4 million over the undeferred portion of the repayment of
advances of P63.9 million.
If Ongpin's memorandum is given full faith, it is clear that PNCC's "accomplishment billings" for
work accomplished, including accomplishments on the "supplemental contracts" (whose
authority therefor was just sought for), aggregated to P98.4 million. Since there were advances
given to PNCC in the total amount of P93.9 million, the net amount due the PNCC was only
P4.5 million.
However, in view of the approval by then President Marcos of Ongpin's request "for a deferment
of the repayment of PNCC's advances to the extent of P30 million," only P63.9 million of
PNCC's advances was to be deducted from the accomplishment billings of P98.4 million. The
net amount due thus became P34.5 million. Hence, as pointed out by the Sandiganbayan, if any
payments were due under Ongpin's Memorandum they would only be for that amount (P34.5
million). The Order of then President Marcos to withdraw has, therefore, exceeded by P20.5
million. Clearly, the order of payment of P55 million had no factual and legal basis and was
therefore unlawful.
III
Not an iota of good faith was shown in the conduct of the appellants.
Being responsible accountable officers of the MIAA, they were presumed to know that, in light of
"the undeferred portion of the repayment" of PNCC's advances in the amount of P63.9 million,
the MIAA's unpaid balance was only P34.5 million. They also ought to know the procedure to be
followed in the payment of contractual obligations. First and foremost there were the submission
by the PNCC of its claims with the required supporting documents and the approval of the
claims by the appropriate approving authority of MIAA. When then President Marcos ordered
immediate payment, he should not have been understood as to order suspension of the
accepted budgeting, accounting, and auditing rules on the matter. Parenthetically, it may be
stated here that although President Marcos was a dictator, he was reported to be, and even
projected himself as, a "faithful" advocate of the rule of law. As a matter of fact, he did not
hesitate to issue a decree, letter of instruction, or any presidential issuance in anticipation of any
planned actions or activities to give the latter the facade or semblance of legality, wisdom, or
propriety. When he made the order to appellant Tabuena, President Marcos must only be
understood to order expeditious compliance with the requirements to facilitate immediate
release of the money. There was no way for Tabuena to entertain any fear that disobedience to
the order because of its unlawfulness or delay in the execution of the order due to compliance
with the requirements would cause his head or life. He offered no credible evidence for such
fear. This Court should not provide one for him. That Tabuena served Mr. Marcos until the end
of the latter's regime and even beyond only proved a loyalty not based on fear but on other
considerations.
Moreover, the manner the appellant effected the withdrawal was most unusual, irregular, and
anomalous. He has not shown any evidence that what he did was the usual practice in his
office.
What happened in this case showed the appellants' complicity as principals by direct
participation in the malversation of the MIAA's funds. The appellants should, therefore, be
thankful to the Sandiganbayan for holding them liable therefor only through negligence.
I vote then to AFFIRM in toto the assailed decision.
Padilla, Melo and Panganiban, JJ., concur.
ROMERO, J., dissenting:
Obedience, rightly directed, is a virtue well-worth cultivating obedience of children to their
elders; obedience to lawful authority by citizens; obedience to the behests of what is highest
and finest in one's self.
Misguided, such as indiscriminate obeisance to questionable mandates, no matter if emanating
from authoritative figures whose slightest whisper and scribbled orders are law, this can lead
man to perdition.
In government, a pliant bureaucracy that is disinclined to resist unethical, immoral, even
downright illegal directives from "above" is easily corrupted and can only bring disrepute to the
entire system. In this context, can subordinate public officials like herein petitioner escape
criminal prosecution by the simple expedient of claiming that they were merely following orders
from a superior? This disquisition will demonstrate that certain requisites are indispensable
before anyone can claim immunity from penal sanctions for seemingly justifiable acts.
This dissenting opinion will narrate the facts for the sake of accuracy for the ponencia seems to
have overlooked or glossed over vital circumstances which make the conclusion embodied
herein irresistible.
Petitioners were charged with violation of Article 217 of the Revised Penal Code (the Code) for
alleged malversation of a total of P55 million from the public funds of the Manila International
Airport Authority (MIAA). The informations filed on three separate dates in 1986 accused them,
as accountable officers, of intentionally withdrawing said amount for the ostensible purpose of
paying a non-existent obligation of MIAA to the Philippine National Construction Corporation
(PNCC), but which they misappropriated and converted for their personal use and benefit.
In their defense, petitioners claimed they acted in good faith and in compliance with a verbal
and later, a written order from no less than former President Ferdinand E. Marcos. In a
Presidential Memorandum (the Marcos Memorandum) dated January 8, 1986, the latter
allegedly commanded petitioner Tabuena, in his capacity as General Manager of MIAA, "to pay
immediately the Philippine National Construction Corporation, thru this Office (Office of the
President), the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial
payment of MIAA's account with said Company mentioned in a Memorandum of (Trade and
Industry) Minister Roberto Ongpin to this Office dated January 7, 1985 . . . ." 1 (The Ongpin
Memorandum). On the assumption that MIAA indeed had a due and demandable debt to PNCC
for work done on the airport, Tabuena, with the help of Gerardo G. Dabao and Adolfo M.
Peralta, MIAA Assistant General Manager and Financial Services Department Acting Manager,
respectively, made three withdrawals from the account of MIAA with the Philippine National
Bank first, on January 10, 1986 for P25 million, then on January 16, 1986 for another P25
million and lastly, on January 31, 1986 for P5 million. The three manager's checks covering the
withdrawals were all applied for and issued in the name of Tabuena. Curiously, while the checks
were issued by the MIA extension office of PNB, they were encashed at the Villamor Air Base
branch. Each time the cash was delivered directly to the office of Marcos' private secretary, Fe
Roa-Gimenez. The latter issued a receipt 2 signed by her but only after the last delivery. No
PNCC receipt was ever given to petitioners.
On October 22, 1990, the Sandiganbayan's First Division rendered a decision finding petitioners
guilty.
Petitioners raise two issues, namely, that they were charged with intentional malversation
(which they labelled as malversation by direct appropriation) but were convicted of malversation
by negligence, and that they acted in good faith.
As regards the first argument, the variance between the crime charged and that proved by the
prosecution is immaterial, as stated by the ponente.
As regards the second issue, it is argued that good faith is a valid defense in malversation for it
negates criminal intent. Petitioners claim that when they committed the acts complained of, they
were merely following then President Marcos' oral and written directives. They rely on Article 11,
paragraph 6 of the Code which states, inter alia:
Art. 11. Justifying circumstances. The following do not incur any criminal
liability:
xxx xxx xxx
6. Any person who acts in obedience to an order issued by a superior for some
lawful purpose.
For an act to be justified under the abovequoted provision, therefore, three requisites must
concur: (a) an order must have been issued by a superior; (b) the order must be for a lawful
purpose; and (c) the means used by the subordinate in carrying out such order must itself be
lawful. 3
In the case at bar, Tabuena was allegedly ordered by President Marcos to pay the PNCC from
MIAA's fund, thus ostensibly meeting the first requirement but not the others. For there is a
qualification which significantly changes the picture. The payment was to be in cash and
immediately made through the Office of the President. It is to be pointed out that it is one thing
to be ordered to pay a due and demandable obligation; it is another to make such payment to
someone other than the lawful obligee and worse, when the subordinate is forced to breach
official channels to comply with the order.
It must be stressed that Tabuena and his co-accused, Peralta and Dabao, disregarded standard
operating procedures in following the President's order. As observed by the Sandiganbayan,
"there were no vouchers to authorize the disbursements in question. There were no bills to
support the disbursement. There were no certifications as to the availability of funds for an
unquestionably staggering sum of P55 Million." Disbursement vouchers are specifically required
under Sec. 4 (5) of Presidential Decree No. 1445 (P.D. No. 1445), while the certificate of
availability of funds is needed to comply with Sec. 47, Title I-B, Bk. V of the Administrative Code
of 1987 4 and Sec. 344 of the Local Government Code of 1991. 5 To compound the duplicity, the
checks, issued by one branch of PNB were encashed in another all made in cash instead of
by crossed check payable to PNCC! Conspicuously, such cash outlay was made without prior
approval or authority of the Commission on Audit. 6 Finally, the last two payments were made
despite the non-issuance of a receipt for the first. In fact, the receipt given after the delivery of
the last installment was not even issued by the PNCC, the legal obligee and avowed recipient of
the money. Instead it emanated from the office of Roa-Gimenez, a complete stranger to the
alleged contract between MIAA and PNCC, who did not even indicate in what capacity she
signed it. To compound the mystery, the money was even delivered to her office, not in
Malacaang, but at nearby Aguado Street. The entire process, done with haste and with a total
disregard of appropriate auditing requirements was, in the words of petitioners themselves, an
extraordinary transaction," 7 admittedly "out of the ordinary" and "not based on normal
procedure." 8
Disbursement of government funds, especially one as gargantuan as the one made by
petitioners, is a complex process, unlike the basic over-the-counter transaction that they
purportedly made it to appear. Far from being lawful, the payment of the alleged obligation of
MIAA to PNCC through the Office of the President may at best be labelled as irregular. "The
term 'irregular expenditure' signifies an expenditure incurred without adhering to established
rules, regulations, procedural guidelines, policies, principles or practices that have gained
recognition in law. Irregular expenditures are incurred without conforming with prescribed
usages and rules of discipline. There is no observance of an established pattern, course, mode
of action, behavior, or conduct in the incurrence of an irregular expenditure. . . . ." 9
Specifically, disbursement of public funds must conform with the following principles:
(1) No money shall be paid out of the Treasury except in pursuance of an
appropriation made by law. 10
(2) No public money or property shall be appropriated, applied, paid, or
employed, directly or indirectly, for the use, benefit, or support of any sect,
church, denomination, sectarian institution, or system of religion, or of any priest,
preacher, minister, or other religious teacher, or dignitary as such, except when
such priest, preacher, minister, or dignitary is assigned to the armed forces, or to
any penal institution, or government orphanage or leprosarium. 11
(3) All money collected on any tax levied for a special purpose shall be treated as
a special fund and paid out for such purpose only. If the purpose for which this
special fund was created has been fulfilled or abandoned, the balance, if any,
shall be transferred to the general funds of the Government. 12
(4) All resources of the government shall be managed, expended or utilized in
accordance with law and regulations and safeguarded against loss or wastage
through illegal or improper disposition to ensure efficiency, economy and
effectiveness in the operations of government. The responsibility to take care
such policy is faithfully adhered to rests directly with the chief or head of the
government agency concerned. 13
(5) Disbursement or disposition of government funds or property shall invariably
bear the approval of the proper officials. 14
(6) Claims against government funds shall be supported with complete
documentation. 15
(7) All laws and regulations applicable to financial transactions shall be faithfully
adhered to. 16
(8) Generally accepted principles and practices of accounting as well as of sound
management and fiscal administration shall be observed, provided that they do
not contravene existing laws and regulations. 17
Assuming arguendo that petitioners acted in good faith in following the President's order,
undeniably, they were negligent as found by the trial court. The instructions in the President's
order should have sufficed to put any accountable head of an office, Tabuena included, on
guard. Why was he being required to pay MIAA's obligation to the PNCC, if indeed there were
any, and not directly to the latter but through the Office of the President? Why was the entire
transaction not coursed through proper channels, viz., the accounting office? Why was such a
huge disbursement to be made in cash, instead of by crossed check, which is not only safer,
faster, and more convenient, but in accord with auditing requirements?
Obedience to a superior's order does not connote blind obedience. Being the general manager
of such a mammoth organization like the MIAA, he should, at the very least, have exercised
ordinary prudence by verifying with the proper official under him whether the agency had indeed
an outstanding indebtedness to the PNCC before ordering any payment to be made through
official channels. Such routine measures were cavalierly disregarded. The whole process
seemed no different from a petty, personal transaction.
As evidence later revealed, PNCC's receivables from MIAA amounted to P102,475,392.35, the
bulk of which comprised escalation charges. From that time until Corazon C. Aquino assumed
the Presidency, a total of P44.4 million was paid, but only P2 million of this in cash; the rest was
set off or compensated against other debts, or assigned to other creditors. The financial records
did not show that PNCC received any sums of money from MIAA during the period January to
June, 1986 when the block payments were being made in quarter millions. Only on September
25, 1986, long after President Marcos had gone, was an assignment of P23 million actually
made by MIAA in favor of PNCC. 18
Even the Ongpin Memorandum, which is the basis of the Marcos Memorandum, failed to show
where the amount of P55 million cropped up. The former contained, inter alia, the following
matters: (a) it requested the President's approval of Minister Ongpin's recommendations "for
eight (8) supplemental contracts pertaining to the MIA Development Project (MIADP) between
the Bureau of Air Transport (BAT) and Philippine National Construction Corporation (PNCC),
formerly CDCP, . . . ."; 19 (b) it informed the President that PNCC had collectibles from MIAA
only in the amount of P4.5 million, which is the difference between the accomplishment billings
on the MIADP totalling P98.4 million and PNCC's advances of P93.9 million; and (c) it informed
the President that PNCC had potential escalation claims against MIAA in the amount of P99
million, "potential" because they have yet to be approved by the Price Escalation Committee
(PEC).
The only remaining piece of evidence which would show that MIAA owed PNCC anything as of
the date of the Marcos Memorandum is MIAA's balance sheet, 20 which indicates its liability to
PNCC as of December 31, 1985 to be P27,931,000.00. 21 How can petitioners claim to have
acted in good faith when they withdrew the P55 million from MIAA's funds knowing fully well that
the amount due PNCC was only a little over half that amount, as shown by their own evidence?
The ponencia states that ". . . . the good faith of Tabuena . . . . was not at all affected even if it
later turned out that PNCC never received the money."
It is precisely our thesis that Tabuena did not act in good faith in complying with the President's
orders because of the reasons aforesatated, summarized as follows:
(a) The President's order was "out of the ordinary" and "not based on normal
procedure," which would have entailed making an "extraordinary transaction," as
admitted by petitioners themselves. This proves that they were, at the time they
received the order, aware that paying MIAA's supposed P55 million obligation to
PNCC through the Office of the President in cash was questionable.
(b) As the head of MIAA, Tabuena should have been more cautious in disbursing
the funds. He did not even stop to think about the legality of the entire process
even when he did not receive any kind of receipt for the first two deliveries of
money worth P50 million. When he did get a receipt, it was not an official receipt
from PNCC, the legal creditor, but from the President's private secretary. It must
also be noted that the cash was all delivered to Gimenez' office at Aguado St.,
not to her office at Malacaang.
(c) Tabuena breached official channels to procure the money. There were no
vouchers nor bills to authorize or support the disbursements. There was also no
certificate of availability of funds. The payment was made in cash without COA's
approval, at a time when the ceiling for cash payments was merely P5,000.00.
As stated earlier, no official receipt from PNCC supported the payment. The
entire process was "done with haste and with a total disregard of appropriate
auditing requirements."
As regards the payments to Roa-Gimenez, these were absolutely unwarranted because
whatever "authority" she claimed to have emanated, not from the creditor PNCC but from the
President. Petitioners were required by law to settle their indebtedness with PNCC directly, the
party in whose favor the obligation was constituted. 22 The only instance when such
questionable payment could have been valid was if it had redounded to PNCC's benefit, which
was not proved at all in this case. 23 As creditor, the PNCC was not even bound to accept
payment, if any, from the President's private secretary, the latter being a third person who had
no interest whatsoever in the discharge of MIAA's obligation. 24
The ponencia states that the Marcos Memorandum was "patently lawful for no law makes the
payment of an obligation illegal."
This statement is premised on the existence of an established creditor-debtor relationship
between the payor and the payee. In this, case, however, the obligor was being made to pay to
a party other than the legal obligee when no novation of the obligation has taken place. How
can such an arrangement be possibly in accord with law?
The preceding established facts clearly show that petitioners were remiss in discharging their
duties as accountable officers. As correctly observed by the court a quo:
. . .(T)he Ongpin Memorandum could not justify Pres. Marcos' memorandum of
January 8, 1986; this in turn could not justify Luis Tabuena's payment of P55
million to Fe Roa Gimenez.
. . . (T)he amount which could be payable by Tabuena in his capacity as head of
the MIAA in January of 1986 could not be in excess of P27.931 million until
other claims had been duly approved. This approval, on the other hand, could not
come from the President but from the Price Escalation Committee (PEC) before
which, according to the Ongpin Memorandum itself, these claims for escalation
had been submitted for approval.
The PEC was not shown to have approved these amounts as of the time
Tabuena made any of the withdrawals for P55 million.
xxx xxx xxx
Tabuena says he had properly accounted for the P55 million he had withdrawn
from the MIAA's funds. By this Tabuena means he gave the money to Fe Roa
Gimenez, presumably in representation of Pres. Ferdinand Marcos.
Neither Pres. Marcos, however, nor Fe Roa Gimenez was entitled to receive or
issue acquittance for a debt in favor of the PNCC. Tabuena's claim, therefore,
that he delivered the P55 million to her is not properly accounting for P55 million.
In fact, when we come right down to it, nobody has issued an acquittance in
behalf of the PNCC for the P55 million paid by Luis Tabuena. Since Tabuena
says he was paying P55 million to the PNCC, it was incumbent upon him to show
a receipt from or in behalf of the PNCC. Tabuena has shown no receipt.
Tabuena was not authorized to part with government money without receipt
When Tabuena gave P55 million intended for the PNCC to Fe Roa Gimenez or
to Pres. Marcos, Tabuena was paying government funds to persons not entitled
to receive those funds. He was, therefore, guilty of malversation of those funds.
xxx xxx xxx
Tabuena says he has accounted for the money because he has told us where
the money went. But to account, in the more proper use of the term, injects a
sense of responsibility for the disposition of funds for which one is answerable.
So when one asks if Tabuena has accounted for the P55 million belonging to the
MIAA, the question really is whether accused Tabuena disposed of the sum in a
responsible manner consistent with his duty. The answer must be in the
negative.
Payments must be delivered to payees. Payments intended for the PNCC must
be delivered to the PNCC or to someone authorized by the PNCC to accept
payments for it. Neither Pres. Marcos nor Fe Roa Gimenez are shown to have
been authorized to accept money for the PNCC nor to deliver money to the
PNCC (or to any creditor of the MIAA for that matter). In fact, though Pres.
Marcos may have been the Supreme Magistrate of the land and the chief
enforcer of the law, the law neither authorized him to pay for the MIAA nor to
accept money for the PNCC.
Accused Tabuena's statement, therefore, that he had presented overwhelming
evidence of the delivery of the P55 million to Pres. Marcos' private secretary
does not prove that he has accounted for that money, that is, that he has
properly disposed of that sum according to law.
On the contrary, what the evidence shows is that accused Tabuena delivered the
P55 million to people who were not entitled thereto, either as representatives of
MIAA or of the PNCC.
It proves that Tabuena had deliberately consented or permitted through
negligence or abandonment, some other person to take such public funds.
Having done so, Tabuena, by his own narration, has categorically demonstrated
that he is guilty of the misappropriation or malversation of P55 million of public
funds. 25
Time and again, this Court has deferred to the findings of fact of the trial court, owing to its
enviable position of having seen the physical evidence and observed the witnesses as they
testified. We see no reason to depart now from this policy.
Tabuena was also personally accountable for the funds in his custody, being the head of a
government agency such as MIAA and discharging fiscal functions as such. In this regard, the
Manual on Certificate of Settlement and Balances (Rev. 1993) (The Manual) states, inter alia:
TITLE IV. ACCOUNTABILITY, RESPONSIBILITY AND LIABILITY FOR
GOVERNMENT FUNDS AND
PROPERTY
Government officials and employees, in the discharge of fiscal functions, shall
ensure that all government resources are managed, expended and utilized in
accordance with law, rules and regulations and safeguarded against loss or
wastage thru illegal or improper disposition.
In the implementation of the above functions, they shall be guided by the
following provisions:
Sec. 26. ACCOUNTABILITY FOR GOVERNMENT FUNDS AND PROPERTY
26.1. Every officer of any government agency whose duties permit or require the
possession or custody of government funds or property shall be accountable
therefor and for the safekeeping thereof in conformity with law.
26.2 Every accountable officer shall be properly bonded in accordance with law.
Sec. 27. RESPONSIBILITY FOR GOVERNMENT FUNDS AND PROPERTY
The head of any agency of the government is immediately and primarily
responsible for all government funds and property pertaining to his agency.
Persons entrusted with the possession or custody of the funds or property under
the agency head shall be immediately responsible to him without prejudice to the
liability of either party to the government.
Sec. 28. SUPERVISION OVER ACCOUNTABLE OFFICERS
The head of any agency or instrumentality of the national government or any
government-owned or controlled corporation and any other self-governing board
or commission of the government shall exercise the diligence of good father of a
family in supervising the accountable officers under his control to prevent the
incurrence of loss of government funds or property, otherwise he shall be jointly
and severally liable with the person primarily accountable therefor. . . .
Sec. 29. LIABILITY OF ACCOUNTABLE, SUPERIOR AND SUBORDINATE
OFFICERS FOR GOVERNMENT FUNDS
29.1 Every officer accountable for government funds shall be liable for alllosses
resulting from the unlawful deposit, use, or application thereof and for all losses
attributable to negligence in the keeping of the funds.
29.2 Liability of Superior Officers. A public officer shall not be civilly liable for
acts done in the performance of his official duties, unless there is a clear showing
of bad faith, malice or gross negligence.
xxx xxx xxx
29.5 Liability of Subordinate Officers. No subordinate officer or employee shall
be civilly liable for acts done by him in good faith in the performance of his duties.
However, he shall be liable for willful or negligent acts done by him which are
contrary to law, morals, public policy and good customs even if he acted under
order or instructions of his superiors.
Sec. 30. LIABILITY FOR UNLAWFUL/ILLEGAL EXPENDITURES OR USES OF
GOVERNMENT FUNDS
30.1.1 Expenditures of government funds or uses of government property in
violation of law or regulations shall be a personal liability of the official or
employee found to be directly responsible therefor.
30.1.2 Every expenditure or obligation authorized or incurred in violation of law or
of the annual budgetary measure shall be void. Every payment made in violation
thereof shall be illegal and every official or employee authorizing or making such
payment, or taking part therein, and every person receiving such payment shall
be jointly and severally liable for the full amount so paid or received. (Emphasis
supplied)
The ponente points out that our reference to the Manual supports the view that Tabuena was
only civilly liable.
This is a misappreciation of the entire sense of the dissent. It must be borne in mind that said
reference was made after the conclusion was reached that Tabuena was indeed criminally liable
for his acts. It is hornbook knowledge that criminal liability carries with it the civil, specially when,
as in this case, the latter arose from the former. Hence, the statement: "Tabuena was also
personally accountable for the funds in his custody, . . . ."
Sections 29.2 and 29.5 of the Manual, which the ponente uses to illustrate his point, actually
includes exceptions to the grant of immunity from civil liability of a public officer for acts done in
the performance of his official duties: (a) The preceding statement itself says that the acts must
be done "in the performance of his official duties;" (b) Sec. 29.2 exempts him from civil liability,
"unless there is a clear showing of bad faith, malice or gross negligence;" and (c) Sec. 29.5
states that "he shall be liable for willful or negligent acts done by him which are contrary to law,
morals, public policy and good customs even if he acted under order or instructions of his
superiors." The quoted provisions have been once more underscored herein.
The ponencia futher states that "(t)here is no showing that Tabuena has anything to do
whatsoever with the execution of the MARCOS Memorandum." But very clearly, the admitted
facts show that it was precisely Tabuena who implemented or executed the said Memorandum.
The ponencia cites Acebedo where the accused was acquitted after it was shown that it was
actually the latter's secretary who collected and converted the money. Tabuena's case is starkly
different, for here it was Tabuena himself who personally turned over the money to the
President's secretary. It was done with his full knowledge and consent, the obvious irregularity
thereof notwithstanding.
In petitioner Peralta's case, we again yield to the factual findings of the trial court. It said:
. . . . The question is whether or not Peralta properly signed the third application
for the issuance of a Manager's Check drawn against the MIAA's savings
account with the Villamor Office of the Philippine National Bank.
At the time that accused Peralta signed the request for the issuance of a
Manager's Check, he was the Acting Financial Services Manager of the MIAA
and all withdrawals of funds required is (sic) co-signature.
The reason for the designation of more than one co-signatory is not merely
useless ceremony; it is to serve as a counter check for the propriety of the
disbursement.
While, indeed, accused Luis Tabuena was the highest official in the MIAA and
had authority to disburse its funds, this authority was not absolute. It had to be for
properly subsisting obligations and the disbursement had to be against funds
existing for that purpose. This is one reason for the need for supporting
documentation before disbursements of funds are authorized. And this is the
special need for finance officers such as Adolfo Peralta, as Financial Services
Manager, to be co-signatories (sic): to ascertain the validity of the obligation and,
in this particular instance, the existence of the balance to be covered by the
manager's check the application for which had been presented for his co-
signature.
In this case, Adolfo Peralta speaks of the existence of (the) P27.9 million liability
in favor of the PNCC as justification for his acts herein. True enough, for that
amount was the liability as of December 31, 1985. As finance officer, however,
he could not claim ignorance of the fact that as of January 29, 1986, the date of
the application for a manager's check which he signed, two previous manager's
checks worth P25 million each had already been applied for and the total amount
of P50 million had already been withdrawn . . . .
It was only two weeks after these two withdrawals when Peralta, as Finance
Services Manager, participated in the authorization for the disbursement of
another P5 million. This last withdrawal brought up the total of withdrawals to P55
million for the payment of a P27.9 million obligation.
Thus while it is true, as Adolfo Peralta claims, that there was a liability in favor of
the PNCC, there was no way Peralta could disclaim responsibility for the
excessive withdrawals to the extent of P5 million thereof allegedly to pay that
liability. There was no way Peralta could justify his co-signing the application for
a manager's check for P5 million on January 29, 1986.
The ponente cites a dissenting opinion of Justice Isagani A. Cruz in Development Bank of the
Philippines v. Pandogar to uphold his ponencia. Need we remind our respected colleague that
the corroborative value of a dissenting opinion is minimal? Precisely, it supports a position
contrary to, and obviously unacceptable to the majority.
Petitioners were found guilty of malversation by negligence, which is possible even if the charge
was for intentional malversation. This does not negate, however, their criminal liability; it merely
declares that negligence takes the place of malice. Article 3 of the Code provides the rationale
when it explicitly states that "felonies are committed not only by means of deceit but also by
means of fault."
The Sandiganbayan's finding that petitioners converted and misappropriated the P55 million
cannot simply be brushed aside upon petitioners' claim that the money was delivered in good
faith to the Office of the President under the mistaken assumption that the President was
entitled to receive the same. They rely on the case of People v. Fabian, 26 which declared that
"(g)ood faith in the payment of public funds relieves a public officer from the crime of
malversation." But the very same decision also cites Article 217 to the effect that malversation
may be committed by an accountable public officer by negligence if he permits any other person
to take the public funds or property in his custody. It is immaterial if petitioners actually
converted or misappropriated MIAA's funds for their own benefit, for by their very negligence,
they allowed another person to appropriate the same.
The fact that no conspiracy was established between petitioners and the true embezzlers of the
P55 million is likewise of no moment. The crime of malversation, as defined under Article 217 of
the Code, 27 was consummated the moment petitioners deliberately turned over and allowed the
President's private secretary to take custody of public funds intended as payment of MIAA's
obligations to the PNCC, if obligation there was at all. That petitioner Tabuena who was then
General Manager of MIAA personally and knowingly participated in the misfeasance
compounds the maleficence of it all. Rank may have its privileges but certainly a blatant
disregard of law and administrative rules is not one of them. It must be etched in the minds of
public officials that the underside of privileges is responsibilities.
As accountable officers, petitioners clearly transgressed administrative and legal bounds. Even
on the pretext of obeying a superior's seemingly legitimate orders, their actuations can hardly be
justified. To rule otherwise would set an alarming precedent where all that public officials who
have unlawfully enriched themselves at the people's expense and those accused of graft and
corruption would have to do to exculpate themselves from any wrongdoing would be to invoke
Article 11, paragraph 6 of the Code, thus gaining instant immunity from criminal prosecution.
Government officials, particularly heads of their agencies who, by virtue of their exalted
positions exude power and authority but pay blind obeisance to orders of those higher up in the
bureaucratic hierarchy regardless of the illegality, impropriety or immorality of such orders,
would do well to internalize this prayer for national leaders delivered by former Senate President
Jovito R. Salonga in Malacanang on November 24, 1996:
xxx xxx xxx
When they begin to think of how much power they possess, help them to know
the many things that are beyond their power the change of seasons, sun and
rain, moonlight and starlight and all the wonders of Your creation;
When they are led to believe that they are exempt from public accountability,
help them to know that they are ultimately accountable to You, the God of truth
and justice and mercy;
xxx xxx xxx
The ponencia makes the final observation that the limitations on the right of judges to ask
questions during the trial were not observed by respondent court; that the three Justices who
heard the testimonies asked 37 questions of witness Francis Monera, 67 of Tabuena, and 41 of
Peralta more than what the prosecutors and defense counsels propounded.
While such numbers unduly disturbed the ponente, it cannot be gainsaid that such action by the
members of the First Division of respondent Sandiganbayan was, under the circumstances, not
only necessary and called for, but likewise legally acceptable.
In the first place, even the ponente makes the observation that petitioners did not raise this
matter as error. In other words, they did not feel prejudiced by the respondent court's
actuations; nor did they construe the series of questions asked of them by the Justices as
indicative of any unfairness or partiality violative of their right to due process.
Then, too, it must be noted that there is a difference in the right of a judge in a non-jury system,
like that obtaining in the Philippines, to question witnesses or parties themselves, and that of a
judge in a jury trial. The bulk of jurisprudence used in the ponencia was decided in the United
States, where the jury system is extensively utilized in civil as well as in criminal trials. In this
regard, "(i)t has been noted that the opinion of the judge, on account of his position and the
respect and confidence reposed in him and in his learning and assumed impartiality, is likely to
have great weight with the jury, and such fact of necessity requires impartial conduct on his part.
The judge is a figure of overpowering influence, whose every change in facial expression is
noted, and whose every word is received attentively and acted upon with alacrity and without
question." 28
Thus, while a trial judge is expected to be circumspect in his choice of words lest they be
construed as signs of partiality, he "is not, however, required to remain silent and passive
throughout a jury trial;" 29 he should, instead, "conduct a trial in an orderly way with a view to
eliciting the truth and to attaining justice between the parties." 30
Inasmuch as it is the jury which has the burden of meting out justice, it is acceptable for a judge
in a jury trial to "ask any question which would be proper for the prosecutor or defense counsel
to ask so long as he does not depart from a standard of fairness and impartiality." 31 "Questions
designed to clarify points and to elicit additional relevant evidence, particularly in a non-jury trial,
are not improper." 32
The numerous questions asked by the court a quo should have been scrutinized for any
possible influence it may have had in arriving at the assailed decision. The true test for the
appropriateness or inappropriateness of court queries is not their quantity but their quality, that
is, whether the defendant was prejudiced by such questioning. 33 To repeat, petitioners did not
feel prejudiced by the trial court's actions; otherwise, they would have raised this issue in the
instant petition.
The ponencia states that he is "well aware of the fear entertained by some that this decision
may set a dangerous precedent in that those guilty of enriching themselves at the expense of
the public would be able to escape criminal liability by the mere expedient of invoking "good
faith." Our position has been either misinterpreted or misread for we do not merely speak of
"good faith." In fact, our main thrust is that such a breed of people who enriched themselves at
the expense of the public might handily use as an excuse or a justifying circumstance to escape
liability their having obeyed the "lawful orders" of their superior under Article 11, paragraph 6 of
the Revised Penal Code.
The ponente makes a plea towards the close of his decision, that we should not act impulsively
in the instant case. "In our eagerness to bring to justice the malefactors of the Marcos regime,
we must not succumb to the temptation to commit the greatest injustice of visiting the sins of the
wrongdoers upon an innocent."
In our opinion, precisely, Tabuena and Peralta are wrongdoers, guilty of acts punishable by law.
Needless to say, under our system of laws, they must be meted out the corresponding penalty.
We draw attention to the fact that nowhere in this dissent do we single out the so-called
"malefactors of the Marcos regime" alone. We addressed ourselves to all who commit venalities
at the expense of the people, as defined and punished by law but who try to justify their actions
by invoking the very law which they violated.
For the reasons stated above, I vote to affirm petitioners' conviction by respondent court.
Padilla, Melo and Panganiban, JJ., concur.

PUNO, J., dissenting:


I join the Dissenting Opinion of Madam Justice Flerida Ruth Romero where I find both right and
righteousness happily intersecting each other. I am, however, constrained to write this brief
dissent in view of the impact of the majority decision to our criminal justice system which many
perceive leaves much to be desired.
I
It should be immediately stressed that petitioners were convicted of the crime of malversation by
negligence. The felony was committed by petitioners not by means of deceit (dolo) but by fault
(culpa). According to Article 3 of the Revised Penal Code, there is fault when the wrongful act
results from imprudence, negligence, lack of foresight, or lack of skill. Justice J.B.L. Reyes
explains the difference between a felony committed by deceit and that committed by fault in this
wise: ". . . In intentional crimes, the act itself is punished; in negligence or imprudence, what is
principally penalized is the mental attitude or condition behind the act, the dangerous
recklessness, lack of care or foresight, the imprudencia punible." 1
In light of this well-carved distinction, the long discourse of the majority decision hailing
petitioners' good faith or lack of intent to commit malversation is off-line. To justify the acquittal
of petitioners, the majority should strive to show that petitioners did not commit any imprudence,
negligence, lack of foresight or lack of skill in obeying the order of former President Marcos.
This is nothing less than a mission impossible for the totality of the evidence proves the utter
carelessness of petitioners in the discharge of their duty as public officials. The evidence and
their interstices are adequately examined in the dissent of Madame Justice Romero and they
need not be belabored.
For the same reason, the majority cannot rely on the doctrine of mistake of fact as ground to
acquit petitioners. It found as a fact that ". . . Tabuena acted under the honest belief that the
P55 million was a due and demandable debt. . . ." This Court has never applied the doctrine of
mistake of fact when negligence can be imputed to the accused. In the old, familiar case of
People vs. Ah Chong, 2 Mr. Justice Carson explained that ignorance or mistake of fact, if such
ignorance or mistake of fact is sufficient to negative a particular intent which under the law is a
necessary ingredient of the offense charge (e.g., in larceny animus furendi, in murder, malice,
etc.), cancels the presumption of intent and works an acquittal, except in those cases where the
circumstances demand conviction under the penal provisions touching criminal negligence.
Hence, Ah Chong was acquitted when he mistook his houseboy as a robber and the evidence
showed that his mistake of fact was not due to negligence. In the case at bar, the negligence of
the petitioners screams from page to page of the records of the case. Petitioners themselves
admitted that the payments they made were "out of the ordinary" and "not based on normal
procedure."
As aforestated, the cornerstone of the majority decision is its finding of good faith on the part of
the petitioners. Viewed from a more critical lens, however, the evidence cannot justify a finding
of good faith. The violations of auditing rules are too many yet the majority merely winks at them
by ruling that petitioner Tabuena ". . . did not have the luxury of time to observe all auditing
procedures of disbursement considering the fact that the Marcos Memorandum enjoined
'immediate compliance' with the directive that he forward to the President's Office the P55
million in cash." With due respect, I am disquieted by the mischiefs that will be mothered by this
ruling. To begin with, the country was no longer under martial rule in 1986 and petitioners were
under no compulsion to violate our laws. It also ought to be obvious that the order for immediate
compliance even if made by the former President cannot be interpreted as a green signal by a
subordinate official to disregard our laws. Indeed, no person, not even the President can order
the violation of our laws under any excuse whatsoever. The first and foremost duty of the
President is to uphold the sanctity of our laws. Thus, the Constitution requires the President to
take an oath or affirmation where he makes the solemn pledge to the people: "I do solemnly
swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President of the
Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and
consecrate myself to the service of the Nation. . . . 3 To be sure, the need for petitioners to make
an immediate payment is really not that immediate. The facts show that former President
Marcos first called petitioner Tabuena by telephone and asked him to make the payment. One
week after or on January 8, 1986, the former President issued a written memorandum
reiterating the order to pay. Payments were made in three tranches the first on January 10,
1986, the second on January 16, 1986 and the third on January 31, 1986. Clearly then, it took
petitioner one month to comply with the Order. Given the personnel of petitioner Tabuena in his
office, one month provides enough time to comply with the rules. In any event, petitioners did
not request former President Marcos for additional time to comply with the rules if they felt in
good faith that they needed more time. Petitioners short-circuited the rules by themselves.
Nothing in the Marcos Memorandum compelled them to disregard the rules. The Memorandum
merely stated "Your immediate compliance is appreciated". The language of the Memorandum
was as polite as it could be. I fail to discern any duress in the request as the majority did.
II
The determination of the degree of participation that should be allowed to a judge in the
questioning of a witness is a slippery slope in constitutional law. To a certain extent, I agree with
the majority that some of the questions propounded by the justices of the respondent Court
crossed the limits of propriety. Be that as it may, I am not prepared to conclude with certainty
that the text and tone of the questions denied petitioners the right to an impartial trial. Bias is a
state of mind which easily eludes evidence. On the basis of the evidence before us, we cannot
hold that we have plumbed the depth of prejudice of the justices and have unearthed their
partiality. The more telling evidence against the petitioners are documentary in nature. They are
not derived from the answers elicited by questions from the justices which the majority, sua
sponte, examined and condemned as improper.
III
Finally, I can not but view with concern the probability that the majority decision will chill
complaints againsts graft pending before the respondent Court. From the majority decision, it is
crystalline that petitioners blindly obeyed the Marcos Memorandum despite its fatal and facial
flaws. The majority even quotes these inculpatory admissions of petitioner Tabuena, viz: 4
xxx xxx xxx
AJ del Rosario
xxx xxx xxx
Q If it was for the payment of such obligation why was there no
voucher to cover such payment? In other words, why was the
delivery of the money not covered by any voucher?
A The instruction to me was to give it to the Office of the
President, your Honor.
PJ Garchitorena
Q Be that as it may, why was there no voucher to cover this
particular disbursement?
A I was just told to bring it to the Office of the President, your
Honor.
AJ del Rosario
Q Was that normal procedure for you to pay in cash to the Office
of the President for obligations of the MIAA in payment of its
obligation to another entity?
A No, your Honor, I was just following the Order to me of the
President.
PJ Garchitorena
Q So the Order was out of the ordinary?
A Yes, your Honor.
AJ del Rosario
Q Did you file any written protest with the manner with which such
payment was being ordered?
A No, your Honor.
Q Why not?
A Because with that instruction of the President to me, I followed
your Honor.
xxx xxx xxx
AJ Hermosisima
Q Why were you not made to pay directly to the PNCC
considering that you are the manager of MIA at that time and the
PNCC is a separate corporation, not an adjunct of Malacanang?
A I was just basing it from the Order of the Malacanang to pay
PNCC through the Office of the President, your Honor.
xxx xxx xxx
Q You agreed to the order of the President notwithstanding the
fact that this was not the regular course or Malacanang was not
the creditor?
A I saw nothing wrong with that because that is coming from the
President, your Honor.
In effect, petitioners' shocking submission is that the President is always right, a
frightening echo of the antedeluvian idea that the King can do no wrong. By allowing the
petitioners to walk, the majority has validated petitioners' belief that the President should
always be obeyed as if the President is above and beyond the law. I cannot accept this
dangerous ruling even if I look at it through the eyes of faith. One of the gospels in
constitutional law is that the President is powerful but is not more paramount than the
law. And in criminal law, our catechism teaches us that it is loyalty to the law that saves,
not loyalty to any man. Let us not bid goodbye to these sacrosanct principles.
Padilla, Melo and Panganiban, JJ., concur.
PANGANIBAN, J., dissenting:
In the main, the majority ruled that Petitioners Luis Tabuena and Adolfo Peralta should be
acquitted because they were merely obeying the order of then President Ferdinand E. Marcos
to deliver "thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash
as partial payment of MIAA's account" with the Philippine National Construction Company. In
their Dissenting Opinions, Justices Romero, Davide and Puno have shown how weak and
unpersuasive this ruling is under applicable Philippine laws and jurisprudence. I will not repeat
their illuminative discussions. Let me just stress three more points:
(1) The defense of "obedience to a superior's order" is already obsolete. Fifty years ago, the
Nazi war criminals tried to justify genocide against the Jews and their other crimes against
humanity by alleging they were merely following the orders of Adolf Hitler, their adored fuehrer.
However, the International Military Tribunal at Nuremberg in its Judgment dated October 1,
1946, 1 forcefully debunked this Nazi argument and clearly ruled that "(t)he true test . . . is not
the existence of the order but whether moral choice was in fact possible."
In 1947, the United Nations General Assembly adopted a Resolution firmly entrenching the
principle of moral choice, inter alia, as follows: 2
The fact that a person acted pursuant to an order of his government or of a
superior does not relieve him from responsibility under international law, provided
a moral choice was in fact possible to him.
In the Nuremberg trials, the defendants were military officers of the Third Reich who were duty-
bound to obey direct orders on pain of court martial and death at a time when their country was
at war. Nonetheless, they were meted out death sentences by hanging or long-term
imprisonments. In the present case, the accused are civilian officials purportedly complying with
a memorandum of the Chief Executive when martial law had already been lifted and the nation
was in fact just about to vote in the "snap" presidential election in 1986. The Sandiganbayan did
not impose death but only imprisonment ranging from seventeen years and one day to twenty
years. Certainly a moral choice was not only possible. It was in fact available to the accused.
They could have opted to defy the illegal order, with no risk of court martial or death. Or they
could have resigned. They knew or should have known that the P55 million was to be paid for a
debt that was dubious 3 and in a manner that was irregular. That the money was to be remitted
in cold cash and delivered to the private secretary of the President, and not by the normal
crossed check to the alleged creditor, gave them a moral choice to refuse. That they opted to
cooperate compounded their guilt to a blatant conspiracy to defraud the public treasury.
(2) Resurrecting this internationally discredited Nazi defense will, I respectfully submit, set a
dangerous precedent in this country. Allowing the petitioners to walk deprives this Court of the
moral authority to convict any subaltern of the martial law dictator who was merely "following
orders." This ludicrous defense can be invoked in all criminal cases pending not only before this
Court but more so before inferior courts, which will have no legal option but to follow this Court's
doctrine. 4
(3) Mercy and compassion are virtues which are cherished in every civilized society. But before
they can be invoked, there must first be justice. The Supreme Court's duty is to render justice.
The power to dispense pardon lies elsewhere. Verily, the Constitution ordains a final conviction
by the courts before the President can exercise his power to wipe away penalty. 5 Such is the
legal and natural precedence and order of things: justice first before mercy. And only he who
sincerely repents his sin, restitutes for it, and reforms his life deserves forgiveness and mercy.
I therefore vote to AFFIRM the assailed Sandiganbayan Decision onvicting the petitioners of
malversation.
Padilla, Melo and Panganiban, JJ., concur.
(Read Separate Opinion in eSCRA)