THIRD DIVISION

[G.R. No. 120391. September 24, 1997.]

SIMPLICIO AMPER, petitioner, vs. SANDIGANBAYAN and PEOPLE

OF THE PHILIPPINES, respondents.

Arniel N. Bondoc for petitioner.

The Solicitor General for respondents.

SYNOPSIS

The petitioner, Simplicio Amper, was charged with the violation of Section 3(e) of
Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.
The petitioner pleaded not guilty and the trial ensued. The Sandiganbayan convicted
the petitioner. He was sentenced to suer the penalty of imprisonment of six years,
one month and one day and to further suer perpetual special disqualication from
public office.
dctai

The Supreme Court held that the petitioner's attempt to obtain a new trial of his
case on the ground of newly discovered evidence cannot be allowed. As correctly
ruled by the Sandiganbayan the testimonies of the petitioner's two alleged
witnesses which petitioner seeks to belatedly present do not constitute newly
discovered evidence.

The assailed decision of the Sandiganbayan was armed in toto. By taking

advantage of his ocial position as Assistant City Engineer of Davao City, the
petitioner was able to use for his personal gain, a city government-owned
equipment called Allis Backhoe without any consideration and without any
authority from the city government. The Davao City government suered undue
injury caused by the wear and tear to the said equipment and by its use without
consideration. LexLib

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; TESTIMONY OF WITNESSES; ENTITLED TO FULL

FAITH AND CREDIT IN THE ABSENCE OF IMPROPER MOTIVE; CASE AT BAR. No ill-
motives have been shown to induce the witnesses to falsely testify against the
petitioner and maliciously implicate him in the said crime. The petitioner's
representation that Mayor Duterte had an axe to grind against him because he did
not support the latter in the past elections is unsupported by evidence and cannot,
thus, be accorded any iota of consideration. At the risk of being repetitious, we state
here the well established rule that absent a showing that the prosecution witnesses
were actuated by any improper motive, their testimony is entitled to full faith and
credit. This being so, the petitioner's claim of non-involvement must necessarily fail,
for denial, to reiterate, cannot prevail over positive identification.

2. ID.; ID.; FINDINGS OF FACT OF THE TRIAL COURT; WHEN ACCORDED NOT
ONLY WITH RESPECT BUT WITH FINALITY ON APPEAL. The ndings of fact of the
trial court is accorded not only with great weight and respect on appeal but at times
nality, provided that it is supported by substantial evidence on record, as in this
case. With respect to who as between the prosecution and the defense witnesses
are to be believed, the trial court's assessment thereof enjoys a badge of respect for
the reason that the trial court has the advantage of observing the demeanor of the
witnesses as they testify. DSEaHT

3. ID.; CRIMINAL PROCEDURE; NEW TRIAL; NEWLY DISCOVERED EVIDENCE, AS

A GROUND; REQUISITES; NOT PRESENT IN CASE AT BAR. Under the Rules of
Court, [Section 2, Rule 121 of the Rules of Court; also Section 1, Rule 37 of the
Rules of Court] the requisites for newly discovered evidence as a ground for new
trial are: (a) the evidence was discovered after the trial; (b) such evidence could not
have been discovered and produced at the trial with reasonable diligence; and (c)
that it is material, not merely cumulative, corroborative or impeaching, and is of
such weight that, if admitted, will probably change the judgment. All three
requisites must characterize the evidence sought to be introduced at the new trial.
Unfortunately, by petitioner's own admission, "it is not clear on the record why
were (sic) they (testimonies of Francisco Chavez and Segundo Tan) not presented
(but) the accused (herein petitioner) had manifested that they should have been
presented . . ." Aside from the petitioner's bare assertion that the non-presentation
of these testimonies was not due to his fault or negligence, he miserably failed to
oer any evidence that the same could not have been discovered and produced at
the trial despite reasonable diligence. LibLex

4. CRIMINAL LAW; SEC. 3(e) OF REPUBLIC ACT NO. 3019 (ANTI-GRAFT AND
CORRUPT PRACTICES ACT); WHEN VIOLATED; CASE AT BAR. Section 3(e) of
Republic Act No. 3019 otherwise known as the Anti-Graft and Corrupt Practices Act
provides as follows: "Sec. 3. Corrupt practices of public ocers. In addition to acts
or omissions of public ocers already penalized by existing law, the following shall
constitute corrupt practices of any public ocer and are hereby declared to be
unlawful: . . . "(e) Causing any undue injury to any party, including the
Government, or giving advantage or preference in the discharge of his ocial
administrative or judicial functions through manifest partiality, evident bad faith, or
gross inexcusable negligence. This provision shall apply to ocers and employees of
oces or government corporations charged with the grant of licenses or permits or
other concessions." By taking advantage of his ocial position as Assistant City
Engineer of Davao City, the petitioner was able to use for his personal gain, a city
government owned Allis Backhoe without any consideration and without any
authority from the city government, thereby causing undue injury to the Davao City
government consisting in the undue wear and tear caused to the said equipment
and its use without consideration. cdll

DECISION
FRANCISCO, J : p

The petitioner, SIMPLICIO AMPER, was charged with the violation of Section 3(e) of
Republic Act No. 3019 otherwise known as the Anti-Graft and Corrupt Practices Act
which provides as follows:

"Sec. 3. Corrupt practices of public ocers . In addition to acts or

omissions of public ocers already penalized by existing law, the following
shall constitute corrupt practices of any public ocer and are hereby
declared to be unlawful:

xxx xxx xxx

"(e) Causing any undue injury to any party, including the Government, or
giving advantage or preference in the discharge of his ocial administrative
or judicial functions through manifest partiality, evident bad faith, or gross
inexcusable negligence. This provision shall apply to ocers and employees
of oces or government corporations charged with the grant of licenses or
permits or other concessions."

The Information against him reads: cdlex

"That on or about August 7, 1988, in the City of Davao Philippines, and

within the jurisdiction of this Honorable Court, the above-mentioned
accused, a public ocer, being then the Assistant City Engineer of Davao
City, taking advantage of his ocial position, with manifest partiality and bad
faith in the discharge of his ocial duties, did then and there wilfully- (sic)
unlawfully, and criminally, cause undue injury to the Republic of the
Philippines by using for his personal benet and advantage, to treasure
hunt, one (1) unit Allis Backhoe, belonging to the City Government of Davao,
without the knowledge, consent and authority from the latter, to the
damage and prejudice of the City Government of Davao.

CONTRARY TO LAW." 1

Upon arraignment the petitioner pleaded not guilty and trial ensued. The
prosecution presented its witnesses whose testimonies are succinctly summarized in
the Comment led by the Oce of the Solicitor General (OSG), the pertinent
portions of which we quote hereunder with approval.

"On August 1, 1988, Filemon Cantela was visiting his two "sisters-in-Christ"
near the vicinity of the Guzman Estate at Matina District, Davao City when he
chanced upon petitioner Simplicio Amper, Assistant City Engineer, Davao
City, together with two others, scanning the area with the use of detector.
After petitioner had left, he inquired and gathered from the landowner, Emilio
Alvarez-Guzman, that petitioner and his companions were looking for hidden
treasure and that they were planning to operate in the area with the use of a
backhoe which is a heavy equipment used for excavating. Apprehensive that
appellant, being the Assistant City Engineer, and as such had at his disposal
the use of the city government-owned backhoe, might actually make use of
the said equipment, he advised his "sister-in-Christ" to inform him if and
when petitioner would actually resume his treasure hunting operation in the
area. (TSN, April 11, 1991, pp. 14-19).

"On August 6, 1988, around 6:00 o'clock in the afternoon (sic), Cantela was
informed by his "sister-in-Christ" that petitioner and ve others were earlier
in the area clearing the premises and preparing to resume their treasure
hunting operation that night. Together with Mike Lusenara and Marcelo
Gervacio, Jr. of the Civil Security Unit, he prepared to conduct a surveillance
on petitioner and his companions that evening (Ibid., pp. 19-20).

"They went to the area at about 8:30 in the evening and discreetly waited for
the arrival of petitioner and his companions. Around 11:30 in (sic) the same
evening, petitioner arrived on board a Toyota Land Cruiser, together with
two others who were on board another vehicle. Shortly, after the arrival of
petitioner and his companions, a backhoe, bearing inscription on its sides
that it is owned by the city government of Davao City, arrived (Ibid., pp. 22-
26). The backhoe was being operated by Tobias Porta, a heavy equipment
operator assigned at the City Engineer's Oce, who was with his assistant,
Timoteo Borongan. Thereafter, Porta, upon the instruction of petitioner,
began to excavate the area with the use of the backhoe. Cantela requested
Henry Adriano to go to the house of Davao City Mayor Rodrigo Duterte and
inform him of petitioner's illegal activity (Ibid., pp. 27-30).

"Around 2:15 in the morning of August 7, 1988, Mayor Duterte arrived,

together with several policemen, and surprised petitioner and his
companions who were still in the act of excavating the area. However,
before the Mayor could actually order their arrest, some of petitioner's
companions scampered, leaving only petitioner, Porta and Borongan (Ibid.,
p. 31)

"Thereupon, Mayor Duterte ordered Porta to stop the engine of the backhoe
and confronted him as to what he was digging in the area. Porta replied that
he was ordered by appellant to dig for gold. Mayor Duterte likewise
confronted Borongan, who upon being asked the same question, gave the
same reply (Ibid.).

"Duterte ordered one of the members of the Civil Security Unit to pick up
petitioner, who was then sitting in his vehicle parked nearby. Mayor Duterte
confronted petitioner and shortly thereafter, ordered petitioner, Porta and
Borongan to follow him to the Tolomo Police Station (Ibid., p. 32).

"Mayor Duterte declared that there are four (4) backhoes owned by the city
government of Davao City including the subject backhoe; that he checked it
out with the Oce of the City Engineer and he found out that no permission
was granted to petitioner to use the subject backhoe for private purposes
(TSN, April 29, 1993, p. 12).

"While in the past, the use of the city government-owned backhoe for
private purposes was allowed upon payment of the corresponding rental,
 Mayor Duterte disallowed the same during his administration because the
city government which had so many projects to undertake needed those
equipment for the aforesaid projects. He allowed the lease of the city-
government-owned backhoes to private individuals but not as matter of
policy and only in extreme cases upon payment of rental (Ibid.)." 2

The petitioner denied the allegations against him and asserted that contrary to
Mayor Duterte's claim that the use of the subject backhoe was unauthorized, the
same was in fact officially leased by the Davao City government to Francisco Chavez
of F.T. Chavez Construction, thus, its use on the private property of Segundo Tan
was proper. 3 Public respondent Sandiganbayan found the foregoing asseveration to
be without merit considering that petitioner was caught en agrante delicto
directing the use and operation of the said backhoe for his own treasure hunting
operations. Furthermore, the petitioner failed to present either Francisco Chavez or
Segundo Tan to corroborate his testimony that the backhoe subject of the instant
case was the same backhoe which Francisco Chavez rented from the city
government. 4

In a decision promulgated on March 6, 1995, the Sandiganbayan convicted the

petitioner of violating Section 3(e) of R.A. No. 3019 and sentenced him "to suer
the penalty of imprisonment of SIX (6) YEARS, ONE (1) MONTH and ONE (1) DAY, to
further suer perpetual special disqualication from public oce, and to pay the
costs." 5

We have carefully reviewed the records of this case and nd nothing therein to
warrant a reversal of the assailed decision of the Sandiganbayan.

The petitioner's conviction was anchored mainly on the prosecution witnesses'

uniform testimonies that they saw him in the actual perpetration of the crime
charged. Filomeno Cantela attested to the petitioner's presence at the scene of the
crime from the inception of the treasure hunting operation at around 11:30 in the
evening of August 6, 1988 until his subsequent apprehension by the group of Mayor
Duterte at around 2:00 o'clock in the morning of the next day. Petitioner's
participation in the commission of the said crime was categorically established also
by Filomeno Cantela who further testied that the backhoe began to operate upon
the instructions of the petitioner. 6 And no less than the Mayor of Davao City whose
group eected the petitioner's arrest corroborated this eyewitness account. 7
Furthermore, even the backhoe operator, Tobias Porta, belied the petitioner's futile
denials when he testied that on the night of August 6, 1988, the petitioner asked
him to proceed to the vacant lot in front of the A-Mart in Matina District, Davao City
on the pretext that they were going to install concrete culverts but upon reaching
the said lot, petitioner ordered him to excavate the area for gold. 8

No ill-motives have been shown to induce the abovementioned witnesses to falsely

testify against the petitioner and maliciously implicate him in the said crime. The
petitioner's representation that Mayor Duterte had an axe to grind against him
because he did not support the latter in the past elections is unsupported by
evidence and cannot, thus, be accorded any iota of consideration. At the risk of being
repetitious, we state here the well established rule that absent a showing that the
prosecution witnesses were actuated by any improper motive, their testimony is
entitled to full faith and credit. 9 This being so, the petitioner's claim of non-
involvement must necessarily fail, for denial, to reiterate, cannot prevail over
positive identification. 10

Moreover, what the petitioner ultimately assails are the factual ndings and
evaluation of witnesses' credibility by the trial court. It is a settled tenet, however,
that the ndings of fact of the trial court is accorded not only with great weight and
respect on appeal but at times nality, provided that it is supported by substantial
evidence on record, as in this case. With respect to who as between the prosecution
and the defense witnesses are to be believed, the trial court's assessment thereof
enjoys a badge of respect for the reason that the trial court has the advantage of
observing the demeanor of the witnesses as they testify. 11

Anent the petitioner's attempt to obtain a new trial of his case on the ground of
newly discovered evidence, suce it to state that it simply cannot be allowed as
correctly ruled by the Sandiganbayan for the undeniable reason that the
testimonies of Francisco Chavez and Segundo Tan which the petitioner seeks to
belatedly present do not constitute newly discovered evidence. Under the Rules of
Court, 12 the requisites for newly discovered evidence as a ground for new trial are:
(a) the evidence was discovered after the trial; (b) such evidence could not have
been discovered and produced at the trial with reasonable diligence; and (c) that it
is material, not merely cumulative, corroborative or impeaching, and is of such
weight that, if admitted, will probably change the judgment. All three requisites
must characterize the evidence sought to be introduced at the new trial. 13
Unfortunately, by petitioner's own admission, "it is not clear on the record why
were (sic) they (testimonies of Francisco Chavez and Segundo Tan) not presented
(but) the accused (herein petitioner) had manifested that they should have been
presented . . ." 14 Aside from the petitioner's bare assertion that the non-
presentation of these testimonies was not due to his fault or negligence, he
miserably failed to oer any evidence that the same could not have been discovered
and produced at the trial despite reasonable diligence. 15 We also agree with the
Oce of the Solicitor General (OSG) which accurately observed that the testimonies
sought to be introduced as newly discovered evidence would not alter the judgment
even if admitted, thus:

"Petitioner himself testied that he asked Tobias Porta to operate the

backhoe at the behest of Segundo Tan, who about one or two days before
August 7, 1988, requested him to look for a backhoe operator, because he
would be installing reinforced concrete culverts along his property at the J.P.
Laurel, McArthur Highway, Davao City. However, Mayor Rodrigo Duterte,
City Mayor of Davao City caught petitioner en agrante delicto directing the
use and operation of the backhoe, not for the purpose of installing
reinforced concrete culverts but for his own personal gold treasure hunting
operation (TSN, April 29, 1993, p. 9). Assuming, therefore, that the
testimonies of Francisco Chavez and Segundo Tan may be admitted as
newly discovered evidence, petitioner can still be held liable for unauthorized
use of the backhoe, because he was not himself authorized to use the
backhoe for treasure hunting operation; thus, causing the government of
 Davao City undue injury because of the undue wear and tear caused to the
said equipment." 16

As a last recourse, the petitioner insists that the testimonies of Francisco Chavez
and Segundo Tan should be admitted as newly discovered evidence since the
Sandiganbayan relied on the adverse presumption arising from their non-
presentation in convicting him. This contention is unfounded and misleading. It is
true that according to the Sandiganbayan, the failure on the part of the defense to
present these vital witnesses without oering any valid reason therefor, raised the
presumption that the testimonies of Francisco Chavez and Segundo Tan would be
adverse to petitioner's interest if they were actually presented. However, as
discussed earlier, the petitioner's conviction was based on the overwhelming and
unrebutted evidence of his positive identication by the prosecution witnesses, and
not, as petitioner would have us believe, on the presumption that the testimonies of
Francisco Chavez and Segundo Tan if presented would be adverse to the defense's
case. There is, in fact, only one short paragraph in the entire nineteen (19) page
decision of the Sandiganbayan which adverts to the non-presentation of Francisco
Chavez and Segundo Tan as witnesses for the defense. 17 A close scrutiny of the
assailed decision reveals that the antecedent facts of this case as culled from the
testimonies of the witnesses were painstakingly established by the ponente 18 in
order to arrive at the correct conclusions both of fact and of law. We cannot, thus,
subscribe to the petitioner's view and reduce the said decision into a conviction
premised on an erroneous presumption.

By taking advantage of his ocial position as Assistant City Engineer of Davao City,
the petitioner was able to use for his personal gain, a city government owned Allis
Backhoe without any consideration and without any authority from the city
government, thereby causing undue injury to the Davao City government consisting
in the undue wear and tear caused to the said equipment and its use without
consideration. 19

WHEREFORE, the assailed decision of the Sandiganbayan is hereby AFFIRMED in

toto. cdll

SO ORDERED

Narvasa, C .J ., Romero, Melo and Panganiban, JJ ., concur.

Footnotes

1. DECISION promulgated March 6, 1995 in Criminal Case No. 14197, p. 1; Rollo, p.

28.

2. COMMENT in G.R. No. 120391 dated March 4, 1996, pp. 2-5; Rollo, pp. 98-101.

3. PETITION FOR REVIEW in G.R. No. 120391 dated July 25, 1995, p. 9, Rollo, p. 21.

4. Supra, p. 15; Rollo, p. 42.

5. Supra, p. 18; Rollo, p. 45.

6. Supra, pp. 12-13; Rollo, pp. 39-40.

7. Ibid.

8. Supra, p. 11; Rollo, p. 38.

9. People of the Philippines vs. Piandiong Y Calda, et al. , G.R. No. 118140, February
19, 1997; People of the Philippines vs. Calvo, Jr., et al. , G.R. No. 91694, March 14,
1997; People vs. De la Cruz , 229 SCRA 754 [1994]; People vs. Perciano, 233 SCRA
393 [1994].

10. People vs . Calvo, Jr., ibid.; People vs . Herbieto, et al., G.R. No. 103611, March 13,
1997; People vs . Ferrer , 255 SCRA 19 [1996]; People vs . Porras , 255 SCRA 514
[1996].

11. Pat. Rudy Almeda vs . Court of Appeals, et al., G.R. No. 120853, March 13, 1997;
People vs . Sumalpong, G.R. No. 123404, February 26, 1997; People vs . Herbieto,
et al., ibid.; People vs . Panlilio, 255 SCRA 503 [1996]; People vs . Gamiao, 240 SCRA
254 [1995].

12. Section 2, Rule 121 of the Rules of Court; also Section 1, Rule 37 of the Rules of
Court.

13. Commissioner of Internal Revenue vs. A. Soriano Corporation, et al. , G.R. No.
113703, January 31, 1997; Dapin vs. Dionaldo, 209 SCRA 38 [1992]; Bernardo vs.
Court of Appeals , 216 SCRA 224 [1992]; Tumang vs. Court of Appeals , 172 SCRA
328 [1989].

14. REPLY TO PUBLIC RESPONDENT'S COMMENT, p. 3.

15. Commissioner of Internal Revenue vs. A. Soriano Corporation, et al., supra.

16. Supra, p. 6; Rollo, p. 102.

17. Supra, p. 15; Rollo, p. 42.

18. Sandiganbayan Justice, Sabino R. De Leon, Jr.

19. Supra, p. 19; Rollo, p. 46.