1

GR NO. 134217, May 11, 2000 Petitioners next allege that the application for a search warrant should have been dismissed
outright since it was not accompanied by a certification of non-forum shopping, citing as
KENNETH ROY SAVAGE/K ANGELIN EXPORT TRADING, OWNED & MANAGED BY authority therefor Washington Distillers, Inc. v. Court of Appeals.[16] In that case, we sustained
GEMMA DEMORAL-SAVAGE, PETITIONERS, the quashal of the search warrant because the applicant had been guilty of forum shopping
~vs~ as private respondent sought a search warrant from the Manila Regional Trial Court only
JUDGE APRONIANO B. TAYPIN, PRESIDING JUDGE, RTC-BR. 12, CEBU CITY, CEBU after he was denied by the courts of Pampanga. The instant case differs significantly, for
PROVINCIAL PROSECUTORS OFFICE, NATIONAL BUREAU OF INVESTIGATION, here there is no allegation of forum-shopping, only failure to acquire a certification against
REGION VII, CEBU CITY, JUANITA NG MENDOZA, MENDCO DEVELOPMENT forum-shopping. The Rules of Court as amended requires such certification only from
CORPORATION, ALFREDO SABJON & DANTE SOSMEA, RESPONDENTS. initiatory pleadings, omitting any mention of applications.[17] In contrast, Supreme Court
DECISION Circular 04-94, the old rule on the matter, required such certification even from applications.
Our ruling in Washington Distillers required no such certification from applications for search
BELLOSILLO, J.: warrants. Hence, the absence of such certification will not result in the dismissal of an
application for search warrant.
Petitioners KENNETH ROY SAVAGE and K ANGELIN EXPORT TRADING, owned and
managed by GEMMA DEMORAL-SAVAGE, seek to nullify the search warrant issued by The last question to be resolved is whether unfair competition involving design patents
respondent Judge Aproniano B. Taypin of the Regional Trial Court, Br. 12 Cebu City, which punishable under Art. 189 of the Revised Penal Code exists in this case. Prosecutor Ivan
resulted in the seizure of certain pieces of wrought iron furniture from the factory of Herrero seems to agree as he filed the corresponding Information against petitioners on 17
petitioners located in Biasong, Talisay, Cebu. Their motion to quash the search warrant was March 1998.[18] However, since the IPR Code took effect on 1 January 1998 any discussion
denied by respondent Judge as well as their motion to reconsider the denial. Hence, this contrary to the view herein expressed would be pointless. The repealing clause of the Code
petition for certiorari. provides
The antecedent facts: Acting on a complaint lodged by private respondent Eric Ng Mendoza, All Acts and parts of Acts inconsistent herewith, more particularly, Republic Act No.
president and general manager of Mendco Development Corporation 165, as amended; Republic Act No. 166, as amended; and Articles 188 and 189 of the
(MENDCO),[1] Supervising Agent Jose Ermie Monsanto of the National Bureau of Revised Penal Code; Presidential Decree No. 49, including Presidential Decree No.
Investigation (NBI) filed an application for search warrant with the Regional Trial Court of 285, as amended, are hereby repealed (italics ours).[19]
Cebu City.[2] The application sought the authorization to search the premises of K Angelin
Export International located in Biasong, Talisay, Cebu, and to seize the pieces of wrought The issue involving the existence of unfair competition as a felony involving design patents,
iron furniture found therein which were allegedly the object of unfair competition involving referred to in Art. 189 of the Revised Penal Code, has been rendered moot and academic by
design patents, punishable under Art. 189 of the Revised Penal Code as amended. The the repeal of the article.
assailed Search Warrant No. 637-10-1697-12 was issued by respondent Judge on 16 The search warrant cannot even be issued by virtue of a possible violation of the IPR
October 1997 and executed in the afternoon of the following day by NBI agents.[3] Seized Code. The assailed acts specifically alleged were the manufacture and fabrication of wrought
from the factory were several pieces of furniture, indicated in the Inventory Sheet attached to iron furniture similar to that patented by MENDCO, without securing any license or patent for
the Return of Search Warrant, and all items seized have remained in NBI custody up to the the same, for the purpose of deceiving or defrauding Mendco and the buying public.[20] The
present.[4] Code defines unfair competition thus
On 30 October 1997 petitioners moved to quash the search warrant alleging that: (a) the 168.2. Any person who shall employ deception or any other means contrary to good
crime they were accused of did not exist; (b) the issuance of the warrant was not based on faith by which he shall pass off the goods manufactured by him or in which he deals, or
probable cause; (c) the judge failed to ask the witnesses searching questions; and, (d) the his business, or services for those of the one having established such goodwill, or shall
warrant did not particularly describe the things to be seized.[5] commit any acts calculated to produce said result, shall be guilty of unfair competition,
On 10 November 1997 petitioners filed a Supplemental Motion to Quash where they and shall be subject to an action therefor.
additionally alleged that the assailed warrant was applied for without a certification against 168.3. In particular, and without in any way limiting the scope of protection against
forum shopping.[6] On 30 January 1998 respondent Judge denied the Motion to Quash and unfair competition, the following shall be deemed guilty of unfair competition:
the Supplemental Motion to Quash.[7] On 2 March 1998 petitioners moved to reconsider the
denial of their motion to quash and alleged substantially the same grounds found in their (a) Any person who is selling his goods and gives them the general appearance of
original Motion to Quash but adding thereto two (2) new grounds, namely: (a) respondent goods of another manufacturer or dealer, either as to the goods themselves or in the
court has no jurisdiction over the subject-matter; and, (b) respondent court failed to wrapping of the packages in which they are contained, or the devices or words
substantiate the order sought to be reconsidered.[8] The denial of their last thereon, or in any other feature of their appearance which would be likely to influence
motion[9] prompted petitioners to come to this Court. purchasers to believe that the goods offered are those of a manufacturer or dealer,
other than the actual manufacturer or dealer, or who otherwise clothes the goods with
The principal issues that must be addressed in this petition are: (a) questions involving such appearance as shall deceive the public and defraud another of his legitimate
jurisdiction over the offense; (b) the need for a certification of non-forum shopping; and, (c) trade, or any subsequent vendor of such goods or any agent of any vendor engaged in
the existence of the crime. selling such goods with a like purpose;
Petitioners claim that respondent trial court had no jurisdiction over the offense since it was (b) Any person who by any artifice, or device, or who employs any other means
not designated as a special court for Intellectual Property Rights (IPR), citing in support calculated to induce the false belief that such person is offering the services of another
thereof Supreme Court Administrative Order No. 113-95 designating certain branches of the who has identified such services in the mind of the public; or
Regional Trial Courts, Metropolitan Trial Courts and Municipal Trial Courts in Cities as
Special Courts for IPR. The courts enumerated therein are mandated to try and decide (c) Any person who shall make any false statement in the course of trade or who shall
violations of IPR including Art. 189 of the Revised Penal Code committed within their commit any other act contrary to good faith of a nature calculated to discredit goods,
respective territorial jurisdictions. The sala of Judge Benigno G. Gaviola of the RTC-Br. 9, businesses or services of another.[21]
Cebu City, was designated Special Court for IPR for the 7th Judicial Region.[10] Subsequently
Supreme Court Administrative Order No.104-96 was issued providing that jurisdiction over all There is evidently no mention of any crime of unfair competition involving design patents in
violations of IPR was thereafter confined to the Regional Trial Courts.[11] the controlling provisions on Unfair Competition. It is therefore unclear whether the crime
exists at all, for the enactment of RA 8293 did not result in the reenactment of Art. 189 of
The authority to issue search warrants was not among those mentioned in the administrative the Revised Penal Code. In the face of this ambiguity, we must strictly construe the statute
orders. But the Court has consistently ruled that a search warrant is merely a process issued against the State and liberally in favor of the accused,[22] for penal statutes cannot be
by the court in the exercise of its ancillary jurisdiction and not a criminal action which it may enlarged or extended by intendment, implication or any equitable consideration.[23]
entertain pursuant to its original jurisdiction.[12] The authority to issue search warrants is Respondents invoke jurisprudence to support their contention that unfair competition exists
inherent in all courts and may be effected outside their territorial jurisdiction.[13] In the instant in this case.[24] However, we are prevented from applying these principles, along with the new
case, the premises searched located in Biasong, Talisay, Cebu, are well within the territorial provisions on Unfair Competition found in the IPR Code, to the alleged acts of the petitioners,
jurisdiction of the respondent court.[14] for such acts constitute patent infringement as defined by the same Code-
Petitioners apparently misconstrued the import of the designation of Special Courts for IPR. Sec. 76. Civil Action for Infringement. 76.1. The making, using, offering for sale, selling, or
Administrative Order No. 113-95 merely specified which court could try and decide cases importing a patented product or a product obtained directly or indirectly from a patented
involving violations of IPR. It did not, and could not, vest exclusive jurisdiction with regard to process, or the use of a patented process without authorization of the patentee constitutes
all matters (including the issuance of search warrants and other judicial processes) in any patent infringement.[25]
one court. Jurisdiction is conferred upon courts by substantive law; in this case, BP Blg.129,
and not by a procedural rule, much less by an administrative order.[15] The power to issue Although this case traces its origins to the year 1997 or before the enactment of the IPR
search warrants for violations of IPR has not been exclusively vested in the courts Code, we are constrained to invoke the provisions of the Code. Article 22 of the Revised
enumerated in Supreme Court Administrative Order No.113-95. Penal Code provides that penal laws shall be applied retrospectively, if such application
would be beneficial to the accused.[26] Since the IPR Code effectively obliterates the
 2
possibility of any criminal liability attaching to the acts alleged, then that Code must be
applied here.
In the issuance of search warrants, the Rules of Court requires a finding of probable cause in
connection with one specific offense to be determined personally by the judge after
examination of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the things to be seized.[27] Hence, since there is no
crime to speak of, the search warrant does not even begin to fulfill these stringent
requirements and is therefore defective on its face. The nullity of the warrant renders moot
and academic the other issues raised in petitioners Motion to Quash and Motion for
Reconsideration. Since the assailed search warrant is null and void, all property seized by
virtue thereof should be returned to petitioners in accordance with established
jurisprudence.[28]
In petitioners Reply with Additional Information they allege that the trial court denied their
motion to transfer their case to a Special Court for IPR. We have gone through the records
and we fail to find any trace of such motion or even a copy of the order denying it. All that
appears in the records is a copy of an order granting a similar motion filed by a certain Minnie
Dayon with regard to Search Warrant No. 639-10-1697-12.[29] This attachment being
immaterial we shall give it no further attention.
WHEREFORE, the Order of the Regional Trial Court, Br. 12, Cebu City, dated 30 January
1998, denying the Motion to Quash Search Warrant No. 637-10-1697-12 dated 30 October
1997 and the Supplemental Motion to Quash dated 10 November 1997 filed by petitioners,
as well as the Order dated 8 April 1998 denying petitioners Motion for Reconsideration dated
2 March 1998, is SET ASIDE. Search Warrant No. 637-10-1697-12 issued on 16 October
1997 is ANNULLED and SET ASIDE, and respondents are ordered to return to petitioners
the property seized by virtue of the illegal search warrant.
SO ORDERED.

GR NO. 80806, October 05, 1989
LEO PITA, DOING BUSINESS UNDER THE NAME & STYLE OF PINOY PLAYBOY,
PETITIONER,
~vs~
THE COURT OF APPEALS, RAMON BAGATSING, & NARCISO CABRERA,
RESPONDENTS.
DECISION
SARMIENTO, J.:
The petitioner, publisher of Pinoy Playboy, a mens magazine, seeks the review of the
decision of the Court of Appeals,[1] rejecting his appeal from the decision of the Regional Trial
Court, dismissing his complaint for injunctive relief. He invokes, in particular, the guaranty
against unreasonable searches and seizures of the Constitution, as well as its prohibition
against deprivation of property without due process of law.
There is no controversy as to the facts. We quote:
On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of the
City of Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics Group,
Auxilliary Services Bureau, Western Police District, INP of the Metropolitan Police Force of
Manila, seized and confiscated from dealers, distributors, newsstand owners and peddlers
along Manila sidewalks, magazines, publications and other reading materials believed to be
obscene, pornographic and indecent and later burned the seized materials in public at the
University belt along C.M. Recto Avenue, Manila, in the presence of Mayor Bagatsing and
several officers and members of various student organizations.
Among the publications seized, and later burned, was Pinoy Playboy magazines
published and co-edited by plaintiff Leo Pita.
On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of the writ
of preliminary injunction against Mayor Bagatsing and Narciso Cabrera, as superintendent
of Western Police District of the City of Manila, seeking to enjoin and/or restrain said
defendants and their agents from confiscating plaintiffs magazines or from otherwise
preventing the sale or circulation thereof claiming that the magazine is a decent, artistic and
educational magazine which is not per se obscene, and that the publication is protected by
the Constitutional guarantees of freedom of speech and of the press.
By order dated December 8, 1983 the Court set the hearing on the petition for preliminary
injunction on December 14, 1983 and ordered the defendants to show cause not later than obscenity, as follows: whether the tendency of the matter charged as obscene, is to deprave
December 13, 1983 why the writ prayed for should not be granted.
On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary
restraining order against indiscriminate seizure, confiscation and burning of plaintiffs Pinoy further declares, is that which shocks the ordinary and common sense of men as an
Playboy Magazines, pending hearing on the petition for preliminary injunction in view of
Mayor Bagatsings pronouncement to continue the Anti-Smut Campaign. The Court granted indecent must depend upon the circumstances of the case, and that ultimately, the
3
to the counsel for the defendants, who may file a rejoinder within the same period from
receipt, after which the issue of Preliminary Injunction shall be resolved.
Plaintiffs supplemental Memorandum was filed on January 18, 1984. Defendant filed his
Comment on plaintiffs supplemental Memorandum on January 20, 1984, and plaintiff filed
his Reply-Memorandum to defendants Comment on January 25, 1984.
On February 3, 1984, the trial court promulgated the Order appealed from denying the
motion for a writ of preliminary injunction, and dismissing the case for lack of merit.[2]
The Appellate Court dismissed the appeal upon the grounds, among other things, as follows:
We cannot quarrel with the basic postulate suggested by appellant that seizure of
allegedly obscene publications or materials deserves close scrutiny because of the
constitutional guarantee protecting the right to express oneself in print (Sec. 9, Art. IV),
and the protection afforded by the constitution against unreasonable searches and seizure
(Sec. 3, Art. IV). It must be equally conceded, however, that freedom of the press is not
without restraint, as the state has the right to protect society from pornographic literature
that is offensive to public morals, as indeed we have laws punishing the author, publishers
and sellers of obscene publications (Sec. 1, Art. 201, Revised Penal Code, as amended
by P.D. No. 960 and P.D. No. 969). Also well settled is the rule that the right against
unreasonable searches and seizures recognizes certain exceptions, as when there is
consent to the search or seizure. (People vs. Malesugui, 63 Phil. 22) or search is an
incident to an arrest, (People vs. Veloso, 48 Phil. 169; Alvero vs. Dizon, 76 Phil. 637) or is
conducted in a vehicle or movable structure (See Papa vs. Magno, 22 SCRA 857).[3]
The petitioner now ascribes to the respondent court the following errors:
1. The Court of Appeals erred in affirming the decision of the trial court and, in effect,
holding that the police officers could without any court warrant or order seize and
confiscate petitioners magazines on the basis simply of their determination that
they are obscene.
2. The Court of Appeals erred in affirming the decision of the trial court and, in effect,
holding that the trial court could dismiss the case on its merits without any hearing
thereon when what was submitted to it for resolution was merely the application of
petitioner for the writ of preliminary injunction.[4]
The Court states at the outset that it is not the first time that it is being asked to pronounce
what obscene means or what makes for an obscene or pornographic literature. Early on,
in People vs. Kottinger,[5]the Court laid down the test, in determining the existence of
or corrupt those whose minds are open to such immoral influences and into whose hands a
publication or other article charged as being obscene may fall.[6] Another test, so Kottinger
indecency.[7] Kottinger hastened to say, however, that (w)hether a picture is obscene or
[8]

the temporary restraining order on December 14, 1983. question is to be decided by the judgment of the aggregate sense of the community reached
by it.[9]
In his Answer and Opposition filed on December 27, 1983 defendant Mayor Bagatsing
admitted the confiscation and burning of obscene reading materials on December 1 and 3, Yet Kottinger, in its effort to arrive at a conclusive definition, succeeded merely in
1983, but claimed that the said materials were voluntarily surrendered by the vendors to the generalizing a problem that has grown increasingly complex over the years. Precisely, the
police authorities, and that the said confiscation and seizure was (sic) undertaken pursuant question is: When does a publication have a corrupting tendency, or when can it be said to
to P.D. No. 960, as amended by P.D. No. 969, which amended Article 201 of the Revised be offensive to human sensibilities? And obviously, it is to beg the question to say that a
Penal Code. In opposing the plaintiffs application for a writ of preliminary injunction, piece of literature has a corrupting influence because it is obscene, and vice-versa.
defendant pointed out that in that anti-smut campaign conducted on December 1 and 3, Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would
1983, the materials confiscated belonged to the magazine stand owners and peddlers who leave the final say to a hypothetical community standard whatever that is and that the
voluntarily surrendered their reading materials, and that the plaintiffs establishment was not question must supposedly be judged from case to case.
raided.
About three decades later, this Court promulgated People v. Go Pin,[10] a prosecution under
The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer. Article 201 of the Revised Penal Code. Go Pin was also even hazier:
On January 5, 1984, plaintiff filed his Memorandum in support of the issuance of the writ of x x x We agree with counsel for appellant in part. If such pictures, sculptures and
preliminary injunction, raising the issue as to whether or not the defendants and/or their paintings are shown in art exhibits and art galleries for the cause of art, to be viewed and
agents can without a court order confiscate or seize plaintiffs magazine before any judicial appreciated by people interested in art, there would be no offense committed. However,
finding is made on whether said magazine is obscene or not. the pictures here in question were used not exactly for arts sake but rather for
The restraining order issued on December 14, 1983 having lapsed on January 3, 1984, the commercial purposes. In other words, the supposed artistic qualities of said pictures
plaintiff filed an urgent motion for issuance of another restraining order, which was opposed were being commercialized so that the cause of art was of secondary or minor
by defendant on the ground that issuance of a second restraining order would violate the importance. Gain and profit would appear to have been the main, if not the exclusive
Resolution of the Supreme Court dated January 11, 1983, providing for the Interim Rules consideration in their exhibition: and it would not be surprising if the persons who went to
Relative to the Implementation of Batas Pambansa Blg. 129, which provides that a see those pictures and paid entrance fees for the privilege of doing so, were not exactly
temporary restraining order shall be effective only for twenty days from date of its issuance. artists and persons interested in art and who generally go to art exhibitions and galleries
to satisfy and improve their artistic tastes, but rather people desirous of satisfying their
On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in support morbid curiosity and taste, and lust, and for love for excitement, including the youth who
of his opposition to the issuance of a writ of preliminary injunction. because of their immaturity are not in a position to resist and shield themselves from the
ill and perverting effects of these pictures.[11]
On January 11, 1984, the trial court issued an Order setting the case for hearing on
January 16, 1984 for the parties to adduce evidence on the question of whether the xxx xxx xxx
publication Pinoy Playboy Magazine alleged (sic) seized, confiscated and/or burned by the
defendants, are obscene per se or not. As the Court declared, the issue is a complicated one, in which the fine lines have neither
been drawn nor divided. It is easier said than done to say, indeed, that if the pictures here in
On January 16, 1984, the Court issued an order granting plaintiffs motion to be given three question were used not exactly for arts sake but rather for commercial purposes, [12] the
days to file a reply to defendants opposition dated January 9, 1984, serving a copy thereof pictures are not entitled to any constitutional protection.
 4
It was People v. Padan y Alova,[13] however, that introduced to Philippine jurisprudence the What the Court is impressing, plainly and simply, is that the question is not, and has not
redeeming element that should accompany the work, to save it from a valid prosecution. been, an easy one to answer, as it is far from being a settled matter. We share Tribes
We quote: disappointment over the discouraging trend in American decisional law on obscenity as well
as his pessimism on whether or not an acceptable solution is in sight.
x x x We have had occasion to consider offenses like the exhibition of still or moving
pictures of women in the nude, which we have condemned for obscenity and as offensive In the final analysis perhaps, the task that confronts us is less heroic than rushing to a
to morals. In those cases, one might yet claim that there was involved the element of art; perfect definition of obscenity, if that is possible, as evolving standards for proper police
that connoisseurs of the same, and painters and sculptors might find inspiration in the conduct faced with the problem, which, after all, is the plaint specifically raised in the petition.
showing of pictures in the nude, or the human body exhibited in sheer nakedness, as
models in tableaux vivants. But an actual exhibition of the sexual act, preceded by acts of However, this much we have to say.
lasciviousness, can have no redeeming feature. In it, there is no room for art. One can see Undoubtedly, immoral lore or literature comes within the ambit of free expression, although
nothing in it but clear and unmitigated obscenity, indecency, and an offense to public not its protection. In free expression cases, this Court has consistently been on the side of
morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a the exercise of the right, barring a clear and present danger that would warrant State
corrupting influence specially on the youth of the land. x x x[14] interference and action.[30] But, so we asserted in Reyes v. Bagatsing,[31] the burden to
Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if show the existence [32] of grave and imminent danger that would justify adverse action lies on
the exhibition was attended by artists and persons interested in art and who generally go to the authorit(ies).
art exhibitions and galleries to satisfy and improve their artistic tastes,[15] could the same There must be objective and convincing, not subjective or conjectural, proof of the existence
legitimately lay claim to art? For another, suppose that the exhibition was so presented that of such clear and present danger.[33] It is essential for the validity of previous restraint or
connoisseurs of [art], and painters and sculptors might find inspiration,[16] in it, would it censorship that the authority does not rely solely on his own appraisal of what the public
cease to be a case of obscenity? welfare, peace or safety may require.[34]
Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the
permitted an ad lib of ideas and two-cents worths among judges as to what is obscene and clear and present danger test.[35]
what is art.
The above disposition must not, however, be taken as a neat effort to arrive at a solution
In a much later decision, Gonzalez v. Kalaw Katigbak,[17] the Court, following trends in the so only we may arrive at one but rather as a serious attempt to put the question in its
United States, adopted the test: Whether to the average person, applying contemporary proper perspective, that is, as a genuine constitutional issue.
standards, the dominant theme of the material taken as a whole appeals to prurient
interest.[18] Kalaw-Katigbak represented a marked departure from Kottinger in the sense It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due
that it measured obscenity in terms of the dominant theme of the work, rather than isolated process and illegal search and seizure.
passages, which were central to Kottinger (although both cases are agreed that
contemporary community standards are the final arbiters of what is obscene). Kalaw- As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech,
Katigbak undertook moreover to make the determination of obscenity essentially a judicial the presumption is that the speech may validly be said. The burden is on the State to
question and as a consequence, to temper the wide discretion Kottinger had given unto law demonstrate the existence of a danger, a danger that must not only be: (1) clear but also, (2)
enforcers. present, to justify State action to stop the speech. Meanwhile, the Government must allow it
(the speech). It has no choice. However, if it acts notwithstanding that (absence of evidence
It is significant that in the United States, constitutional law on obscenity continues to journey of a clear and present danger), it must come to terms with, and be held accountable for, due
from development to development, which, states one authoritative commentator (with ample process.
sarcasm), has been as unstable as it is unintelligible.[19]
The Court is not convinced that the private respondents have shown the required proof to
Memoirs v. Massachusettes,[20] a 1966 decision, which characterized obscenity as one justify a ban and to warrant confiscation of the literature for which mandatory injunction had
utterly without any redeeming social value,[21] marked yet another development. been sought below. First of all, they were not possessed of a lawful court order: (1) finding
the said materials to be pornography, and (2) authorizing them to carry out a search and
The latest word, however, is Miller v. California, which expressly abandoned seizure, by way of a search warrant.
[22]

Massachusettes, and established basic guidelines,[23] to wit: (a) whether the average
person, applying contemporary standards would find the work, taken as a whole, appeals to The Court of Appeals has no quarrel that freedom of the press is not without restraint, as
the prurient interest ; (b) whether the work depicts or describes, in a patently offensive the state has the right to protect society from pornographic literature that is offensive to public
way, sexual conduct specifically defined by the applicable state law; and (c) whether the morals.[36]
work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[24] Neither do we. But it bring us back to square one: were the literature so confiscated
pornographic? That we have laws punishing the author, publisher and sellers of obscene
(A year later, the American Supreme Court decided Hamling v. United States,[25] which publications (Sec. 1, Art. 201, Revised Penal Code, as amended by P.D. No. 960 and P.D.
repeated Miller, and Jenkins v. Georgia,[26] yet another reiteration of Miller, Jenkins, No. 969),[37] is also fine, but the question, again, is: Has the petitioner been found guilty
curiously, acquitted the producers of the motion picture, Carnal Knowledge, in the absence of under the statute?
genitals portrayed on screen, although the film highlighted contemporary American
sexuality.) The fact that the former respondent Mayors act was sanctioned by police power is no
license to seize property in disregard of due process. In Philippine Service Exporters, Inc. v.
The lack of uniformity in American jurisprudence as to what constitutes obscenity has been Drilon,[38] we defined police power as state authority to enact legislation that may interfere
attributed to the reluctance of the courts to recognize the constitutional dimension of the with personal liberty or property in order to promote the general welfare.[39] Presidential
problem.[27] Apparently, the courts have assumed that obscenity is not included in the Decrees Nos. 960 and 969 are, arguably, police power measures, but they are not, by
guaranty of free speech, an assumption that as we averred, has allowed a climate of themselves, authorities for high-handed acts. They do not exempt our law enforcers, in
opinions among magistrates predicated upon arbitrary, if vague theories of what is carrying out the decree of the twin presidential issuances (Mr. Marcos), from the
acceptable to society. And [t]here is little likelihood, says Tribe, that this development has commandments of the Constitution, the right to due process of law and the right against
reached a state of rest, or that it will ever do so until the Court recognizes that obscene unreasonable searches and seizures, specifically. Significantly, the Decrees themselves lay
speech is speech nonetheless, although it is subject -? as in all speech to regulation in the down procedures for implementation. We quote:
interests of [society as a whole] but not in the interest of a uniform vision of how human
sexuality should be regarded and portrayed.[28] Sec. 2. Disposition of the Prohibited Articles. The disposition of the literature, films,
prints, engravings, sculptures, paintings, or other materials involved in the violation
In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of referred to in Section 1 hereof (Art. 201), RPC as amended) shall be governed by the
police power, to suppress smut provided it is smut. For obvious reasons, smut following rules:
is not smut simply because one insists it is smut. So is it equally evident that individual tastes
develop, adapt to wide-ranging influences, and keep in step with the rapid (a) Upon conviction of the offender, to be forfeited in favor of the
advance of civilization. What shocked our forebears, say, five decades ago, is not Government to be destroyed.
necessarily repulsive to the present generation. James Joyce and D. H. Lawrence were
censored in the thirties yet their works are considered important literature today.[29] Goyas La (b) Where the criminal case against any violator of this decree results
Maja desnuda was once banned from public exhibition but now adorns the worlds most in an acquittal, the obscene/immoral literature, films, prints,
prestigious museums. engravings, sculptures, paintings or other materials and articles
involved in the violation referred to in Section 1 (referring to Art.
But neither should we say that obscenity is a bare (no pun intended) matter of 201) hereof shall nevertheless be forfeited in favor of the
opinion. As we said earlier, it is the divergent perceptions of men and women that have government to be destroyed, after forfeiture proceedings
probably compounded the problem rather than resolved it. conducted by the Chief of Constabulary.
 5
(c) The person aggrieved by the forfeiture action of the Chief of
Constabulary may, within fifteen (15) days after his receipt of a
copy of the decision, appeal the matter to the Secretary of
National Defense for review. The decision of the Secretary of
National Defense shall be final and unappealable. (Sec. 2, PD
NO. 960 as amended by PD No. 969.)
Sec. 4. Additional Penalties. Additional penalties shall be imposed as follows:
1. In case the offender is a government official or employee who allows the violations of
Section 1 hereof, the penalty as provided herein shall be imposed in the maximum period
and, in addition, the accessory penalties provided for in the Revised Penal Code, as
amended, shall likewise be imposed.[40]
Under the Constitution,[41] on the other hand:
SEC. 3. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall not be violated, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined by the judge, or such other responsible
officer as may be authorized by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to
be searched, and the persons or things to be seized.[42]
It is basic that searches and seizures may be done only through a judicial warrant, otherwise,
they become unreasonable and subject to challenge. In Burgos v. Chief of Staff,
AFP,[43] we countermanded the orders of the Regional Trial Court authorizing the search of
the premises of We Forum and Metropolitan Mail, two Metro Manila dailies, by reason of a
defective warrant. We have greater reason here to reprobate the questioned raid, in the
complete absence of a warrant, valid or invalid. The fact that the instant case involves an
obscenity rap makes it no different from Burgos, a political case, because, and as we have
indicated, speech is speech, whether political or obscene.
The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules
then prevailing), provide:
SEC. 12. Search without warrant of person arrested. A person charged with an offense
may be searched for dangerous weapons or anything which may be used as proof of the
commission of the offense.[44]
but as the provision itself suggests, the search must have been an incident to a lawful arrest,
and the arrest must be on account of a crime committed. Here, no party has been charged,
nor are such charges being readied against any party, under Article 201, as amended, of the
Revised Penal Code.
We reject outright the argument that [t]here is no constitutional nor legal provision which
would free the accused of all criminal responsibility because there had been no
warrant,[45] and that violation of penal law [must] be punished.[46] For starters, there is no
accused here to speak of, who ought to be punished. Second, to say that the respondent
Mayor could have validly ordered the raid (as a result of an anti-smut campaign) without a
lawful search warrant because, in his opinion, violation of penal laws has been committed,
is to make the respondent Mayor judge, jury, and executioner rolled into one. And precisely,
this is the very complaint of the petitioner.
We make this resume.
1. The authorities must apply for the issuance of a search warrant from a judge, if in their
opinion, an obscenity rap is in order;
2. The authorities must convince the court that the materials sought to be seized are
obscene, and pose a clear and present danger of an evil substantive enough to warrant
State interference and action;
3. The judge must determine whether or not the same are indeed obscene: the question is
to be resolved on a case-to-case basis and on His Honors sound discretion.
4. If, in the opinion of the court, probable cause exists, it may issue the search warrant
prayed for;
5. The proper suit is then brought in the court under Article 201 of the Revised Penal Code;
6. Any conviction is subject to appeal. The appellate court may assess whether or not the
properties seized are indeed obscene.
These do not foreclose, however, defenses under the Constitution or applicable statutes, or
remedies against abuse of official power under the Civil Code[47] or the Revised Penal
Code.[48]
WHEREFORE, the petition is GRANTED. The decision of the respondent court is
REVERSED and SET ASIDE. It appearing, however, that the magazines subject of the
search and seizure have been destroyed, the Court declines to grant affirmative relief. To
that extent, the case is moot and academic.
SO ORDERED.
6
 7
GR NO. 69500, July 22, 1985 absolute. It can be limited if there be a clear and present danger of a substantive evil that
[the State] has a right to prevent. [13]
JOSE ANTONIO U. GONZALEZ IN BEHALF OF MALAYA FILMS, LINO BROCKA, JOSE
F. LACABA, & DULCE Q. SAGUISAG, PETITIONERS, 2. Censorship or previous restraint certainly is not all there is to free speech or free press. If
~vs~ it were so, then such basic rights are emasculated. It is, however, except in exceptional
CHAIRMAN MARIA KALAW KATIGBAK, GENERAL WILFREDO C. ESTRADA (RET.), & circumstances a sine qua non for the meaningful exercise of such right. This is not to deny
THE BOARD OF REVIEW FOR MOTION PICTURES & TELEVISION (BRMPT), that equally basic is the other important aspect of freedom from liability. Nonetheless, for the
RESPONDENTS. purposes of this litigation, the emphasis should rightly be on freedom from censorship. It is,
beyond question, a well-settled principle in our jurisdiction. As early as 1909, in the case
DECISION of United States v. Sedano,[14] a prosecution for libel, the Supreme Court of the Philippines
FERNANDO, C.J.: already made clear that freedom of the press consists in the right to print what one chooses
without any previous license. There is reaffirmation of such a view in Mutuc v. Commission
In this case of first impression, a certiorari proceeding filed on January 10, 1985, there is a on Elections,[15] where an order of respondent Commission on Elections giving due course to
persuasive ring to the invocation of the constitutional right to freedom of expression[1] of an the certificate of candidacy of petitioner but prohibiting him from using jingles in his mobile
artist and for that matter a man of letters too as the basis for a ruling on the scope of units equipped with sound systems and loud speakers was considered an abridgment of the
the power of respondent Board of Review for Motion Pictures and Television and how it right of the freedom of expression amounting as it does to censorship. It is the opinion of this
should be exercised. The dispute between the parties has been narrowed down. The Court, therefore, that to avoid an unconstitutional taint on its creation, the power of
motion picture in question, Kapit sa Patalim was classified For Adults Only. There is the respondent Board is limited to the classification of films. It can, to safeguard other
further issue then, also one of first impression, as to the proper test of what constitutes constitutional objections, determine what motion pictures are for general patronage and what
obscenity in view of the objections raised. Thus the relevance of this constitutional may require either parental guidance or be limited to adults only. That is to abide by the
command: Arts and letters shall be under the patronage of the State.[2] principle that freedom of expression is the rule and restrictions the exemption. The power to
exercise prior restraint is not to be presumed, rather the presumption is against its validity.[16]
The principal petitioner is Jose Antonio U. Gonzalez,[3] President of the Malaya Films, a
movie production outfit duly registered as a single proprietorship with the Bureau of Domestic 3. The test, to repeat, to determine whether freedom of expression may be limited is the
Trade. The respondent is the Board of Review for Motion Pictures and Television, with Maria clear and present danger of an evil of a substantive character that the State has a right to
Kalaw Katigbak as its Chairman and Brig. Gen. Wilfredo C. Estrada as its Vice-Chairman, prevent. Such danger must not only be clear but also present. There should be no doubt
also named respondents. that what is feared may be traced to the expression complained of. The causal connection
must be evident. Also, there must be reasonable apprehension about its imminence. The
In a resolution of a sub-committee of respondent Board of October 23, 1984, a permit to time element cannot be ignored. Nor does it suffice if such danger be only probable. There
exhibit the film Kapit sa Patalim under the classification For Adults Only, with certain is the requirement of its being well-nigh inevitable. The basic postulate, therefore, as noted
changes and deletions enumerated was granted. A motion for reconsideration was filed by earlier, is that where the movies, theatrical productions, radio scripts, television programs,
petitioners stating that the classification of the film For Adults Only was without and other such media of expression are concerned included as they are in freedom of
basis.[4] Then on November 12, 1984, respondent Board released its decision: Acting on the expression censorship, especially so if an entire production is banned, is allowable only
applicants Motion for Reconsideration dated 29 October 1984, the Board, after a review of under the clearest proof of a clear and present danger of a substantive evil to public safety,
the resolution of the sub-committee and an examination of the film, Resolves to affirm in public morals, public health or any other legitimate public interest.[17] There is merit to the
toto the ruling of the sub-committee. Considering, however, certain vital deficiencies in the observation of Justice Douglas that every writer, actor, or producer, no matter what medium
application, the Board further Resolves to direct the Chairman of the Board to Withheld the of expression he may use, should be freed from the censor.[18]
issuance of the Permit to exhibit until these deficiencies are supplied.[5] Hence this petition.
4. The law, however, frowns on obscenity and rightly so. As categorically stated by
This Court, in a resolution of January 12, 1985, required respondent to answer. In such Justice Brennan in Roth v. United States,[19] speaking of the free speech and press
pleading submitted on January 21, 1985, as one of its special and affirmative defenses, it guarantee of the United States Constitution: All ideas having even the slightest redeeming
was alleged that the petition is moot as respondent Board has revoked, its questioned social importance unorthodox ideas, controversial ideas, even ideas hateful to the
resolution, replacing it with one immediately granting petitioner company a permit to exhibit prevailing climate of opinion have the full protection of the guaranties, unless excludable
the film Kapit without any deletion or cut [thus an] ajudication of the questions presented because they encroach upon the limited area of more important interests. But implicit in the
above would be academic on the case.[6] Further: The modified resolution of the Board, of history of the First Amendment is the rejection of obscenity as utterly without redeeming
course, classifies Kapit as for-adults-only, but the petition does not raise any issue as to the social importance.[20] Such a view commends itself for approval.
validity of this classification. All that petitioners assail as arbitrary on the part of the Boards
action are the deletions ordered in the film.[7] The prayer was for the dismissal of the petition. 5. There is, however, some difficulty in determining what is obscene. There is
persuasiveness to the approach followed in Roth: The early leading standard of obscenity
An amended petition was then filed on January 25, 1985. The main objection was the allowed material to be judged merely by the effect of an isolated excerpt upon particularly
classification of the film as For Adults Only. For petitioners, such classification is without susceptible persons. Regina v. Hicklin [1868] LR 3 QB 360. Some American courts
legal and factual basis and is exercised as impermissible restraint of artistic expression. The adopted this standard but later decisions have rejected it and substituted this test: whether
film is an integral whole and all its portions, including those to which the Board now offers to the average person, applying contemporary community standards, the dominant theme of
belated objection, are essential for the integrity of the film. Viewed as a whole, there is no the material taken as a whole appeals to prurient interest. The Hicklin test, judging obscenity
basis even for the vague speculations advanced by the Board as basis for its by the effect of isolated passages upon the most susceptible persons, might well encompass
classification.[8] There was an answer to the amended petition filed on February 18, 1985. It material legitimately treating with sex, and so it must be rejected as unconstitutionally
was therein asserted that the issue presented as to the previous deletions ordered by the restrictive of the freedoms of speech and press. On the other hand, the substituted standard
Board as well as the statutory provisions for review of films and as to the requirement to provides safeguards adequate to withstand the charge of constitutional infirmity.[21]
submit the master negative have been all rendered moot. It was also submitted that the
standard of the law for classifying films afford a practical and determinative yardstick for the 6. The above excerpt which imposes on the judiciary the duty to be ever on guard against
exercise of judgment. For respondents, the question of the sufficiency of the standards any impermissible infringement on the freedom of artistic expression calls to mind the
remains the only question at issue. landmark ponencia of Justice Malcolm in United States v. Bustos,[22] decided in 1918. While
recognizing the principle that libel is beyond the pale of constitutional protection, it left no
It would be unduly restrictive under the circumstances to limit the issue to one of the doubt that in determining what constitutes such an offense, a court should ever be mindful
sufficiency of standards to guide respondent Board in the exercise of its power. Even if such that no violation of the right to freedom of expression is allowable. It is a matter of pride for
were the case, there is justification for an inquiry into the controlling standard to warrant the the Philippines that it was not until 1984 in New York Timer v. Sullivan,[23]thirty-six years later,
classification of For Adults Only. This is especially so when obscenity is the basis for any that the United States Supreme Court enunciated a similar doctrine.
alleged invasion of the right to the freedom of artistic and literary expression embraced in the
free speech and free press guarantees of the Constitution. 7. It is quite understandable then why in the Roth opinion, Justice Brennan took pains to
emphasize that sex and obscenity are not synonymous.[24] Further: Obscene material is
1. Motion pictures are important both as a medium for the communication of ideas and the material which deals with sex in a manner appealing to prurient interest. The portrayal of
expression of the artistic impulse. Their effects on the perception by our people of issues sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material
and public officials or public figures as well as the prevailing cultural traits is the constitutional protection of freedom of speech and press. Sex, a great and mysterious
considerable. Nor as pointed out in Burstyn v. Wilson[9] is the importance of motion pictures motive force in human life, has indisputably been a subject of absorbing interest to mankind
as an organ of public opinion lessened by the fact that they are designed to entertain as well through the ages; it is one of the vital problems of human interest and public concern.[25]
as to inform.[10] There is no clear dividing line between what involves knowledge and what
affords pleasure. If such a distinction were sustained, there is a diminution of the basic right 8. In the applicable law, Executive Order No. 876, reference was made to respondent Board
to free expression. Our recent decision in Reyes v. Bagatsing[11] cautions against such a applying contemporary Filipino cultural values as standard,[26] words which can be
move. Press freedom, as stated in the opinion of the Court, may be identified with the liberty construed in an analogous manner. Moreover, as far as the question of sex and obscenity
to discuss publicly and truthfully any matter of public concern without censorship or are concerned, it cannot be stressed strongly that the arts and letters shall be under the
punishment.[12] This is not to say that such freedom, as is the freedom of speech, patronage of the State.[27] That is a constitutional mandate. It will be less than true to its
function if any government office or agency would invade the sphere of autonomy that an
 8
artist enjoys. There is no orthodoxy in what passes for beauty or for reality. It is for the artist
to determine what for him is a true representation. It is not to be forgotten that art
and belleslettres deal primarily with imagination, not so much with ideas in a strict
sense. What is seen or perceived by an artist is entitled to respect, unless there is a showing
that the product of his talent rightfully may be considered obscene. As so well put by Justice
Frankfurter in a concurring opinion, the widest scope of freedom is to be given to the
adventurous and imaginative exercise of the human spirit[28] in this sensitive area of a mans
personality. On the question of obscenity, therefore, and in the light of the facts of this case,
such standard set forth in Executive Order No. 878 is to be construed in such a fashion to
avoid any taint of unconstitutionality. To repeat, what was stated in a recent decision[29] citing
the language of Justice Malcolm in Yu Cong Eng v. Trinidad,[30] it is an elementary, a
fundamental, and a universal role of construction, applied when considering constitutional
questions, that when a law is susceptible of two constructions one of which will maintain and
the other destroy it, the courts will always adopt the former.[31] As thus construed, there can
be no valid objection to the sufficiency of the controlling standard and its conformity to what
the Constitution ordains.
9. This being a certiorari petition, the question before the Court is whether or not there was a
grave abuse of discretion. That there was an abuse of discretion by respondent Board is
evident in the light of the difficulty and travail undergone by petitioners before Kapit sa
Patalim was classified as For Adults Only, without any deletion or cut. Moreover its
perception of what constitutes obscenity appears to be unduly restrictive. This Court
concludes then that there was an abuse of discretion. Nonetheless, there are not enough
votes to maintain that such an abuse can be considered grave. Accordingly, certiorari does
not lie. This conclusion finds support in this explanation of respondents in its Answer to the
amended petition: The adult classification given the film serves as a warning to theater
operators and viewers that some contents of Kapit are not fit for the young. Some of the
scenes in the picture were taken in a theater-club and a good portion of the film shots
concentrated on some women erotically dancing naked, or at least nearly naked, on the
theater stage. Another scene on that stage depicted the women kissing and caressing as
lesbians. And toward the end of the picture, there exists scenes of excessive violence
attending the battle between a group of robbers and the police. The vulnerable and imitative
in the young audience will misunderstand these scenes.[32] Further: Respondents further
stated in its answer that petitioner company has an option to have the film reclassified to For-
GeneralPatronage if it would agree to remove the obscene scenes and pare down the
violence in the film.[33] Petitioners, however, refused the For Adults Only classification and
instead, as noted at the outset, filed this suit for certiorari.
10. All that remains to be said is that the ruling is to be limited to the concept of obscenity
applicable to motion pictures. It is the consensus of this Court that where television is
concerned, a less liberal approach calls for observance. This is so because unlike motion
pictures where the patrons have to pay their way, television reaches every home where there
is a set. Children then will likely will be among the avid viewers of the programs therein
shown. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the
concern of the law to deal with the sexual fantasies of the adult population. [34] It cannot be
denied though that the State as parens patriae is called upon to manifest an attitude of caring
for the welfare of the young.
WHEREFORE, this Court, in the light of the principles of law enunciated in the opinion,
dismisses this petition for certiorari solely on the ground that there are not enough votes for a
ruling that there was a grave abuse of discretion in the classification of Kapit sa Patalim as
For Adults Only.
 9
GR NO. 173360, March 28, 2008 affidavits contained declarations that they delivered the confiscated lumber to the residence
of the petitioner.
LT. COL. PACIFICO G. ALEJO, PETITIONER,
~vs~ The defense, on the other hand, presented petitioner and Romeo Buenaventura, the then
PEOPLE OF THE PHILIPPINES, RESPONDENT. Community Environment and Natural Resources Officer. Petitioner denied the allegations
against him. He declared that he knew the prosecution witnesses who were his subordinates.
DECISION He asserted that prosecution witnesses Rodolfo Estremos and Amrodin Sultan testified
CHICO-NAZARIO, J.: against him because they were intimidated by people in the militarys higher echelon, one of
whom was a certain General Soriano. He claimed that these witnesses executed affidavits
This petition for review on certiorari under Rule 45 of the Rules of Court assails the sometime in July of 1993 repudiating their earlier affidavits accusing him of taking the
Decision[1] dated 31 January 2006 of the Sandiganbayan, Fifth Division in A/R No. 064 which confiscated logs for his benefit.
affirmed the Decision[2] dated 26 July 2002 of the Regional Trial Court (RTC) of Palayan City,
Branch 40, finding petitioner Lieutenant Colonel (Lt. Col.) Pacifico G. Alejo guilty of Romeo Buenaventura testified that on 7 December 1992, he executed a citation of
Malversation of Public Property punishable under paragraph 4, Article 217 of the Revised commendation for petitioner for the latters support in the campaign against illegal logging.
Penal Code. On 26 July 2002, the RTC rendered a decision acquitting petitioner of the crimes of direct
On 29 December 1994, petitioner was charged before the RTC with the crime of bribery and violation of Section 3(e) of Republic Act No. 3019, but convicting him of the crime
Malversation of Public Property, allegedly committed as follows: of Malversation of Public Property. The relevant decretal portion of the decision reads:

That on or about June 8, 1992, in Nueva Ecija, Philippines, and within the jurisdiction of WHEREFORE, judgment is hereby rendered:
this Honorable Court, the said accused, a public officer, being then the Commanding xxxx
Officer of the Real Estate Preservation Economic Welfare Center, and accountable for
confiscated illegal logs he received by reason of his position and office, did then and 2.) Finding the accused GUILTY beyond reasonable doubt of the crime of Malversation
there, willfully, unlawfully and feloniously, and with grave abuse of confidence, of Public Property corresponding to Criminal Case No. 0639-P. Considering that the
misappropriate, embezzle and take away 1,000 board feet of logs confiscated by subject lumber is valued at TWENTY THOUSAND PESOS (P20,000.00), the imposable
elements of the 56th IB, 7th ID, PA, valued at P20,000.00 Philippine Currency and penalty under Article 217 (4) of the Revised Penal Code is Reclusion Temporal in its
converted for his own personal use and benefit, to the damage and prejudice of the medium period which is 14 yrs., 8 months and 1 day to 17 yrs. and 4 mos. Applying the
government.[3] Indeterminate Sentence Law, in the absence of any mitigating or aggravating
circumstance, the Court hereby sentences the accused, LTC. PACIFICO G. ALEJO, to
When arraigned on 22 November 1995, petitioner pleaded not guilty. suffer imprisonment of eight (8) years and one (1) days as minimum to seventeen (17)
It appears that petitioner was also charged with two different crimes, namely, Violation of years as maximum. The accused is furthermore ordered to pay the State the amount of
Section 3(e) of Republic Act No. 3019 and Direct Bribery, which were allegedly interrelated TWENTY THOUSAND PESOS (P20,000.00) representing the value of the lumber
with the malversation case. Thus, during the hearing on 6 June 1996, petitioners counsel misappropriated as well as the costs of suit.[6]
moved that the two other cases filed against him, i.e., for direct bribery and violation of On 4 September 2002, petitioner filed a Motion for Reconsideration and/or to Reopen the
Section 3(e) of Republic Act No. 3019, be jointly tried with the malversation case. The RTC Proceedings. Petitioner contended that the evidence for the prosecution failed to show that
granted the motion for joint trial. he was an accountable officer of the subject lumber; thus, he could not be liable for the crime
At trial, the prosecution presented the following witnesses: (1) Colonel Gerardo Lantoria, of malversation of public property.
Deputy Chief of Office, Office of Ethical Standards and Public Accountability, Judge The RTC, without the objection of the prosecution, ordered the reopening of the case for the
Advocate Generals Office (JAGO), who received the complaint against petitioner, had the presentation of additional evidence.
said complaint investigated, and was the one who prepared the Affidavit-Complaint against
petitioner after the Chief of Staff of the Philippine Army recommended the elevation of the On 31 July 2003, the defense presented witness Atty. Hermilo Barrios, the Deputy JAGO of
case to the Ombudsman for preliminary investigation; (2) Lieutenant Rodolfo Estremos, then the 7th ID in 1991-1993. He testified that he prepared the 23 September 1991 MOA entered
a master sergeant and a subordinate of petitioner, who testified that he loaded and brought into by the 7th ID of the Philippine Army and DENR, Region III. According to him, it was the
the 1,000 board feet of confiscated logs to the house of petitioner upon the latters DENR that gave the orders to the military component to confiscate and seize illegal logs. The
instruction; (3) Sergeant Nelson Flores, who was the driver of the truck used in transporting military component had no authority and accountability with respect to the confiscated
the confiscated logs to petitioners house; and (4) Amrodin Sultan, then the Commander of vehicles and forest products that were being seized. He said that the military compound was
Atate Detachment where the logs were stored, testified that Estremos took the logs from the used only as impounding area, inasmuch as the DENR was ill-equipped to accommodate the
detachment after Sultan gave his consent upon being informed that such was upon the order numerous logs seized during the anti-illegal logging campaign.[7] He stated further that it was
of petitioner who was a superior officer. the DENR that had total control of the impounding area.[8]
As gathered from the combined testimonies of the prosecution witnesses, the prosecution On 25 September 2003, the prosecution presented Atty. Salome Cansino, Chief Legal
was able to establish that at the time of the commission of the crime, petitioner was the Counsel of the DENR when the MOA was executed. She testified that based on the MOA,
Commanding Officer of the Real Estate Preservation Economic Welfare Center (REPEWC), whenever apprehension or confiscation was made by the TFSLY, the forest products or
7th Infantry Division, Philippine Army, Palayan City. As a higher unit, REPEWC controls equipment would be placed in the custody of the REPEWC or the 7th ID depot. She stressed
smaller units, one of which is Task Force Sagip Likas Yaman (TFSLY). TFSLY is composed that the disposition of these forest products lies with the DENR which would evaluate and
of the military, as the armed component, and the Office of the Community Environment and determine the legality of said products.[9] The military component of the task force, therefore,
Natural Resource of the Department of Environment and Natural Resouces (DENR), as the cannot release the confiscated products without the authority from the DENR.[10]
civilian element, in the drive against illegal logging. Petitioner was the Task Force
Commander of the TFSLY. Being the commanding officer of the REPEWC and the task force In an order dated 2 October 2003, the RTC denied the motion for reconsideration and
commander of the TFSLY, petitioner was involved in the anti-illegal logging campaign. affirmed its decision dated 26 July 2002, convicting petitioner of the crime of malversation.
Witnesses Rodolfo Estremos, Amrodin Sultan, and Nelson Flores were among his Dissatisfied by the ruling of the RTC, petitioner elevated the case to the Sandiganbayan.
subordinates.
In a decision dated 31 January 2006, the Sandiganbayan affirmed the decision of the RTC
To further strengthen the anti-illegal campaign, the DENR- Region III Office and the convicting petitioner of the crime of malversation, viz:
7th Infantry Division (7th ID) of the Philippine Army entered into a Memorandum of Agreement
(MOA) on 23 September 1991, wherein it was agreed upon, inter alia, that the 7th ID would In view of all the foregoing, we hereby affirm the decision of the lower court finding the
accept custody of confiscated mineral and forest products, tools, equipment and accused guilty beyond reasonable doubt of the crime of malversation. However, after
conveyances for safekeeping.[4] applying the Indeterminate Sentence Law in the absence of any aggravating and mitigating
circumstance, the penalty imposed by it should be modified to TEN (10) YEARS & ONE (1)
On 8 June 1992, there were 46 logs, measuring about 10 to 12 meters, stockpiled at Atate DAY prision mayor as minimum, to SIXTEEN (16) YEARS, FIVE (5) MONTHS & ELEVEN
Detachment, the detachment which was primarily created to confiscate illegally-transported (11) DAYS of reclusion temporal, as maximum; perpetual special disqualification; and to pay
logs. The confiscated logs were valued at P20,000.00 per stipulation of the counsel of the a fine of Php20,000.00 equal to the amount malversed, and the costs of the suit.[11]
accused.[5] On the same day, Amrodin Sultan, the Detachment Commander thereof, was
notified by Rodolfo Estremos that petitioner instructed him to load the confiscated lumber into Petitioner filed a motion for reconsideration which was denied by the Sandiganbayan in its
a 66 truck driven by Nelson Flores. When the confiscated logs were loaded, Flores and resolution dated 26 June 2006.
Estremos drove to petitioners house at Sto. Domingo, Nueva Ecija, and unloaded the said
logs in the presence of the petitioner, his wife and mother-in-law. Hence, the instant petition.

Rodolfo Estremos executed an Affidavit against petitioner dated 15 July 1992, while Amrodin Petitioner maintains that the prosecution failed to discharge its burden of proving his guilt
Sultan and Nelson Flores executed their respective affidavits on 16 July 1992 before Captain beyond reasonable doubt. Petitioner asserts that the testimonies of prosecution witnesses
Simeon T. Infante of the Division Headquarters, 7th ID, Fort Magsaysay, Palayan City. The Rodolfo Estremos, Amrodin Sultan and Nelson Flores should be appreciated with careful

scrutiny since these witnesses were pressured or intimidated by General Soriano to testify
against him and considering that before they took the witness stand, they had already
executed their respective affidavits recanting their accusations against petitioner. Their act of
taking the witness stand and reviving the accusations against petitioner become suspect in
view of the fact that they are being used by General Soriano to pin him down.
Aside from the bare testimonies of Estremos, Sultan and Flores, petitioner claims that the
prosecution failed to present any documentary evidence showing that the confiscated logs
actually existed and were included in the inventory of the DENR as confiscated logs, which
were turned over to the custody of the TFSLY and which were subsequently lost. Petitioner
insists that the audit or inventory of confiscated logs under the possession and custody of the
TFSLY is crucial to the case and in the absence thereof, the charge of malversation must fail.
He adds that the prosecutions failure to establish that there were indeed confiscated logs
could mean acquittal. If indeed these logs exist, it cannot be considered vested with public
character absent proper documentation of confiscation pursuant to the MOA. Since the logs
were not vested with public character, he said he cannot be considered as an accountable
officer within the purview of Article 217 of the Revised Penal Code. Moreover, he avers that
the prosecution failed to prove the actual value of the confiscated logs.
10
The evidence of the prosecution had sufficiently shown that TFSLY was created pursuant to
the 23 September 1991 MOA between the 7th ID of the Philippine Army and the DENR,
Region III. Under the MOA, it is the 7th ID of the Philippine Army, specifically the Task Force
Commander of the TFSLY, which has the duty to accept custody of confiscated logs and
other forest mineral products, viz:
WHEREAS, The DENR-3 and the 7 ID, PA agree and cooperate in curbing the
pernicious illegal logging and mining activities through closer coordination in the strict
enforcement of forestry and mining laws, rules and regulations;
Now, therefore, for and in consideration of the foregoing promises, and the mutual
covenants hereinafter set forth, the parties agree on the following:
xxxx
II. That the 7ID, PA, thru its authorized representative(s) shall have the following
functions and duties:
xxxx

Petitioner also capitalizes on the inconsistencies of the prosecution witnesses on the quantity 2.8 To accept custody of confiscated mineral and forest products, tools equipment
of the lumber or logs that were misappropriated. He points out that witness Estremoss and conveyances for safekeeping;
testimony conflicts with that of witness Flores because the former said the logs were 2.9 To be responsible for the loss of any of the said items under its custody;
unloaded in the presence of the wife of the petitioner and his mother-in-law, while the latter
stated that unloading was done in the presence of the accused only. This glaring xxxx
inconsistency, petitioner stresses, shatters the credibility of the prosecution witnesses.
III. That DENR-3 and the 7ID, PA shall organize a Task Force to be named Task Force
In the main, petitioner wants this Court to weigh the credibility of the prosecution Sagip Likas Yaman composed of selected officials and personnel to implement this
witnesses vis-a-vis that of the defense witnesses. It has often been said, however, that Memorandum of Agreement.[16]
credibility of witnesses is a matter best examined by, and left to, the trial courts. [12] When the
factual findings of the trial court are affirmed by the appellate court, the general rule Being the Commanding Officer of the REPEWC, which is the higher unit, he was also the
applies.[13] This Court will not consider factual issues and evidentiary matters already passed Task Force Commander of the TFSLY; hence, petitioner had control and custody over the
upon. The petitioner raises the same issues he brought before the appellate court which confiscated forest products that were placed within the Atate Detachment.
gave credence to the findings and decision of the trial court. Prosecution witness Atty. Salome Cansino, Chief Legal Counsel of the DENR when the MOA
Factual findings of the trial court are entitled to respect and are not to be disturbed on appeal was entered into, affirmed that it was the military component of the TFSLY, specifically the
unless some facts or circumstances of weight and substance, having been overlooked or task force commander, in this case petitioner, who had supervision and control of the
misinterpreted, might materially affect the disposition of the case.[14] The assessment by the confiscated forest products, viz:
trial court of the credibility of a witness is entitled to great weight. It is even conclusive and
Q: In other words, Atty. Cansino, who is accountable for these
binding if not tainted with arbitrariness or oversight of some fact or circumstance of weight
confiscated logs?
and influence.
In the case under consideration, we find that the trial court did not overlook, misapprehend, A: Based on our agreement, whenever apprehension or
or misapply any fact of value for us to overturn the findings of the trial court. confiscation are made by the Joint Task Force, the DENR
has no compound or place where they can store the forest
The prosecution, through the testimonies of the key witnesses Rodolfo Estremos, Nelson products. Based on our agreement, the forest products or
Flores, and Amrodin Sultan, was able to establish beyond reasonable doubt the existence of equipments or vehicles shall be placed at the 7th ID depot for
the elements of the crime hurled against petitioner. custody and security.[17]
Malversation of public property is defined and penalized under Article 217 of the Revised
Although the DENR had concurrent supervision over the confiscated forest products, as the
Penal Code, the pertinent provisions of which read:
release of the same cannot be done without the authority of the DENR representative, this
Art. 217. Malversation of public funds or property Presumption of malversation. Any does not diminish the fact that these forest products after their confiscation and inventory
public officer who, by reason of the duties of his office, is accountable for public funds or were deposited in the military depot, over which petitioner had power and control as the
property, shall appropriate the same or shall take or misappropriate or shall consent, commanding officer.
through abandonment or negligence, shall permit any other person to take such public
An accountable public officer, within the purview of Article 217 of the Revised Penal Code, is
funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation
one who has custody or control of public funds or property by reason of the duties of his
or malversation of such funds or property, shall suffer:
office. To be liable for malversation, an accountable officer need not be a bonded official. The
xxxx name or relative importance of the office or employment is not the controlling factor. What is
decisive is the nature of the duties that he performs and that as part of, and by reason of,
4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount said duties, he receives public money or property, which he is bound to account for.[18] In this
involved is more than twelve thousand pesos but is less than twenty-two thousand case, the confiscated logs were delivered for safekeeping at the Atate Detachment over
pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its which petitioner had control. He had the obligation to safeguard and account for the same.
maximum period to reclusion perpetua.
The confiscated logs are considered public property since the same were impressed with
In all cases, persons guilty of malversation shall also suffer the penalty of perpetual public attributes or character for which the public officer was accountable. While these logs
special disqualification and a fine equal to the amount of the funds malversed or equal to were not strictly government property, they partook of the nature of public property. Article
the total value of the property embezzled. 222 of the Revised Penal Code states that private property seized or deposited by public
authority may be the object of malversation.
The elements of malversation of public property, essential to the conviction of an accused
under the above penal provision, are: Although the prosecution failed to present any documentary evidence showing that the
confiscated logs existed and that the same were turned over to the custody of TFSLY, there
1. That the offender is a public officer;
was, however, an admission or a stipulation as to the existence of such logs on the part of
2. That he has the custody or control of the property by reason of the duties of the defense, as evidenced by the 5 August 1998 Order of the RTC, which states: The Public
his office; Prosecutor dispensed with the presentation of prosecution witness Leoncio Alvaran, the
counsel for the accused having admitted the valuation of the lumber subject matter of Crim.
3. That the property is a public property for which he is accountable; and Case No. 0639-P in the amount of P20,000.00 (1,000.00 bd. ft.), with a qualification that the
valuation was at the time the lumber were confiscated and not while in the possession of
4. That he appropriated, took, misappropriated or consented to, or through
accused.[19] Furthermore, the prosecution, through the testimony of Detachment Commander
abandonment or negligence, permitted another person to take them.[15]
Amrodin Sultan, was able to present testimonial evidence as to the existence of the
It is beyond dispute that petitioner, during the time relative to the case, was a public officer, confiscated logs, which were stored in the Atate Detachment:
as he was then the Commanding Officer of the REPEWC, 7th Infantry Division, Philippine
Army and the Task Force Commander of the TFSLY.
 11
Q: What were those logs which according to you were confiscated all about? Q: So, upon being told by Estremos that he was ordered by Col. Alejo to take those
lumber stock filed in the building you were then referred to, what did you tell him or
what did you do?
A: When I was assigned here in Atate, those logs were already stocked, sir.
A: When the lumber was already loaded, they asked permission from me that they
Q: As a Detachment Commander, have you actually seen those logs? are going to bring the logs to the house of Col. Alejo, sir.[26]

Against these damning pieces of evidence adduced by the prosecution, all that petitioner
A: Yes, sir.[20]
could interpose as defense are mere denials and finger-pointing. He claimed that it was
Anent the last element, this Court has held that to justify conviction for malversation of public General Soriano who was behind the plot to indict him of the crime. Sadly, petitioner did not
funds or property, the prosecution has only to prove that the accused received public funds substantiate such defense and he merely said that it was based on his gut feeling. Under
or property, and that he could not account for them or did not have them in his possession settled jurisprudence, denial could not prevail over the positive testimony of
and could not give a reasonable excuse for their disappearance.[21] An accountable public witnesses.[27] Denial is intrinsically a weak defense which must be buttressed by strong
officer may be convicted of malversation even if there is no direct evidence of evidence of non-culpability to merit credibility.[28]
misappropriation, and the only evidence is that there is a shortage in his accounts which he Contrary to petitioners postulation, it is sufficient that the prosecution established by
has not been able to explain satisfactorily.[22] Here, the prosecution was able to muster direct competent evidence that there existed confiscated logs under the control and custody of
evidence that petitioner had misappropriated the subject confiscated logs. Three prosecution petitioner and that he misappropriated the same. Inventory or audit of the confiscated logs
witnesses, Rodolfo Estremos, Nelson Flores and Amrodin Sultan, all of whom were under the custody of the TFSLY is not necessary, since the prosecution was able to prove all
petitioners subordinates, corroborated each other in declaring categorically that it was the elements of the crime charged. There is no requirement under the law that for one to be
petitioner who ordered them to pick up the confiscated lumber and to deliver the same to his convicted of malversation of public property, such property must first be inventoried or
residence. audited.
Estremos, during the direct examination, declared that petitioner instructed him to get the Petitioner cannot utilize the testimonial inconsistencies committed by the prosecution
confiscated logs and bring the same to petitioners residence: witnesses. They clearly and affirmatively gave a full account of what actually transpired on 8
June 1992. They were consistent in their respective narrations on the witness stand, except
Q: x x x Noong June 8, 1992 ay sinundo ako ng 66 truck ng 525 EBM, na hiniram ni as to the number of logs unloaded and the number of persons present during the unloading.
Lt. Col. Alejo sa REPEWC, Fort Magsaysay, Palayan City at inutusan ako na It is understandable that witnesses varied in their estimates of the logs, since it was unlikely
pumunta sa Atate Detachment, Palayan City at isakay sa truck ang nakaimbak na for them to bother counting said logs as their instruction from their superior officer was not to
mga kahoy doon na nakakumpiska at iti-turned over ng 56 IB. Pagkakuha ko ng count said logs, but to deliver them to his residence. Besides, such minor inconsistencies on
mga nasabing kahoy ay dinala ko sa kanyang bahay sa Sto. Domingo, Nueva insignificant details cannot diminish their credibility. We have held that inconsistencies in the
Ecija x x x. testimonies of witnesses which refer to minor and insignificant details cannot destroy their
credibility.[29] Minor inconsistencies even guarantee truthfulness and candor.[30]
xxxx
The affidavits of recantation executed by witnesses Estremos, Flores and Sultan prior to the
trial cannot prevail over their testimonies made before the trial court. Their testimonies
Q: You said that you were ordered by Col. Alejo to proceed to Atate Detachment and effectively repudiated the contents of the affidavits of recantation. The recantation could
load the lumber therein to be taken to his house. How were you ordered by Col. hardly suffice to overturn the finding of guilt by the trial court which was based on their clear
Alejo? and convincing testimonies, given during a full-blown trial. As held by this Court, an affidavit
of recantation, being usually taken ex parte, would be considered inferior to the testimony
A: Verbal, sir. given in open court.[31]
This Court agrees with the Sandiganbayan that there is no need for the prosecution to
Court: Tinawag ka? present evidence as to the value of the confiscated logs, which, in turn, is the basis for
determining the period of imprisonment of petitioner. Petitioners counsel stipulated the
quantity and the valuation of the confiscated logs as evidenced by the RTC Order dated 5
A: Opo.[23] August 1998 which reads:
Estremos likewise testified that the one who drove the truck was witness Flores: The Public Prosecutor dispensed with the presentation of prosecution witness Leoncio
Alvaran, the counsel for the accused having admitted the valuation of the lumber
Q: You said that you were fetched by six by six truck on the said date which was subject matter of Crim. Case No. 0639-P in the amount of P20,000.00 (1,000.00 bd.
borrowed by Col. Alejo. Who was then driving the said six by six truck? ft.), with a qualification that the valuation was at the time the lumber were confiscated
and not while in the possession of accused.[32]
A: I remember sir, Sgt. Flores.[24] It is doctrinal that the requirement of proof beyond reasonable doubt in criminal law does not
mean such a degree of proof as to exclude the possibility of error and produce absolute
Flores confirmed the testimony of Estremos that he was the driver of the vehicle certainty. Only moral certainty is required or that degree of proof which produces conviction
that brought the confiscated logs to petitioners house, thus: in an unprejudiced mind. The prosecution sufficiently established that petitioner had custody
of the subject logs of which he is accountable and he appropriated the same for his own
Q: And during that time and date, do you remember having met Lt. Col. Alejo? benefit. Unmistakably, petitioner malversed public property.
The Sandiganbayan imposed upon petitioner the penalty ranging from 10 years and 1 day
A: Yes, sir.
of prision mayor as minimum, to 16 years, 5 months and 11 days of reclusion temporal, as
maximum. Under Article 217, paragraph 4 of the Revised Penal Code, the penalty for
Q: What transpired or what happened when you met Col. Alejo on that time and date? malversation is reclusion temporal in its medium and maximum periods, if the amount
involved is more than P12,000.00 but less than P22,000.00. Applying the Indeterminate
xxxx Sentence Law, and there being no mitigating or aggravating circumstances, the maximum
imposable penalty shall be within the range of 16 years, 5 months and 11 days to 18 years, 2
A: x x x We are instructed to unload the lumber beside his house after that we left. months and 20 days, while the minimum shall be within the range of 10 years and 1 day to
14 years and 8 months.[33] Therefore, the penalty imposed by the Sandiganbayan is proper.
xxxx Under the second paragraph of Article 217, persons guilty of malversation shall also suffer
the penalty of perpetual special disqualification and a fine equal to the amount of funds
Court: What is the participation of this witness here in that particular incident of loading malversed or equal to the total value of the property embezzled, which in this case is
and unloading the lumber, are you the driver? P20,000.00.
WHEREFORE, the 31 January 2006 Decision of the Sandiganbayan, Fifth Division, in A/R
A: Yes, Your Honor.[25] No. 064 finding Lieutenant Colonel Pacifico G. Alejo guilty of Malversation of Public Property
and sentencing him to suffer the penalty of imprisonment ranging from 10 years and 1 day
Witness Sultan, the Detachment Commander of the Atate Detachment, also testified that of prision mayor as minimum, to 16 years, 5 months and 11 days of reclusion temporal, as
Estremos and Flores went to Atate Detachment and informed him they were there upon the maximum, with the accessories of the law, with the additional penalty of perpetual special
order of petitioner to take the confiscated lumber to the petitioners house: disqualification and a fine of P20,000.00 is AFFIRMED in toto. SO ORDERED.
12

GR NOS. 158694-96, March 13, 2009
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,
~vs~
TEOFILO G. PANTALEON, JR. & JAIME F. VALLEJOS, ACCUSED-APPELLANTS.
DECISION
BRION, J.:
We review in this appeal the February 4, 2003 decision of the Sandiganbayan in Criminal
Case Nos. 25861-63[1] finding the appellants Teofilo G. Pantaleon, Jr. (Pantaleon) and Jaime
F. Vallejos (Vallejos), former Municipal Mayor and Municipal Treasurer, respectively, of the
Municipality of Castillejos, Zambales, guilty beyond reasonable doubt of three (3) counts of
malversation of public funds through falsification of public documents, defined and penalized
under Article 217, in relation with Articles 48 and 171 of the Revised Penal Code. The
Sandiganbayan sentenced the appellants to suffer the penalties of reclusion perpetua and
perpetual special disqualification for each count, and ordered them to pay a fine in the
amounts of P166,242.72, P154,634.27, and P90,464.21, respectively, and to pay the costs.
ANTECEDENT FACTS
This case originated from the joint affidavit-complaints filed by Vice Mayor Wilma D. Billman
(Vice Mayor Billman); Councilors Reynaldo V. Misa (Reynaldo), Dionisio F. Abinsay
(Dionisio), Resty D. Viloria (Resty), Ramon J. Tamoria (Ramon), Aurelio M. Fastidio (Aurelio),
Enrique C. Clarin (Enrique), and Raymundo V. Navarro (Raymundo), dated December 18,
1998; and Rodolfo J. Navalta (Rodolfo) dated December 22, 1998, before the Office of the
Special Prosecutor of Zambales, for malversation of public funds through falsification of
public documents, against the appellants, Ken Swan Tiu, and Engineer Rainier J. Ramos
(Engr. Ramos).
The joint affidavit-complaints alleged that the appellants, Ken Swan Tiu, and Engr. Ramos
conspired to illegally disburse and misappropriate the public funds of the Municipality of
Castillejos, Zambales in the amounts of P166,242.72 (under Disbursement Voucher No. 101-
9803-328), P154,634.27 (under Disbursement Voucher No. 101-9803-349), and P90,464.21
(under Disbursement Voucher No. 101-9804-415), by falsifying the supporting documents
relating to three (3) fictitious or ghost construction projects, namely: (a) the upgrading
of barangay roads in Barangays Looc, Nagbayan, Magsaysay, and San Pablo; (b) the
upgrading of barangay roads in Barangays Looc proper-Casagatan, Nagbayan proper-
Angeles, and San Pablo-Sitio San Isidro; and (c) the construction of market stalls at the
public market of Castillejos.
The affidavit-complaints further alleged that the disbursement vouchers were not signed by
the municipal accountant and budget officer; that the Sangguniang Bayan did not adopt a
resolution authorizing Pantaleon to enter into a contract with La Paz Construction and/or Ken
Swan Tiu; and that no projects were actually undertaken by the Municipality of Castillejos.
The Office of the Special Prosecutor (OSP) recommended the filing of an Information for
Malversation of Public Funds through Falsification of Public Documents against the
appellants and Ken Swan Tiu, and the dismissal of the complaint against Engr. Ramos.[2]
The Office of the Deputy Ombudsman for Luzon approved the Joint Resolution of the OSP,
with the modification that the complaint against Ken Swan Tiu be dismissed for lack of
probable cause.[3] The Office of the Ombudsman approved the Review Action of the Office of
the Deputy Ombudsman for Luzon.[4]
The Office of the Ombudsman filed on March 10, 2000 three (3) separate Informations for
Malversation of Public Funds through Falsification of Public Documents against the
appellants before the Sandiganbayan. The Informations were docketed as Criminal Case
Nos. 25861-63. Criminal Case Nos. 25861-62 refer to the disbursement of public funds in
the upgrading of various roads in the Municipality of Castillejos, while Criminal Case No.
25863 concerns the disbursement of funds for the construction of market stalls at the
Castillejos Public Market. The accusatory portions of these Informations read:
Criminal Case No. 25861
That on or about 5 January 1998 and 20 February 1998, or sometime prior
or subsequent thereto, in the Municipality of Castillejos, Province of
Zambales, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, both public officers, then being the Municipal
Mayor and Municipal Treasurer, respectively, both of the Municipality of
Castillejos, Zambales who by reason of their said respective office, are
accountable for public funds or properties, committing the complex crime
charged herein while in the performance of, in relation to and/or taking
advantage of their official positions and functions as such, and conspiring
and confederating with one another, did then and there, willfully, unlawfully
and feloniously appropriate, take or misappropriate public funds of the
Municipality of Castillejos, Zambales under their charge and custody in the
amount of P166,242,72, Philippine currency, under the check dated 20
February 1998 intended for the simulated disbursement and payment
thereof in favor of La Paz Construction (LPC) relative to the fictitious
contract for the upgrading of the barangay roads in Barangay Looc,
Nagbayan, Magsaysay and San Pablo, Castillejos, Zambales; by means of
falsifying the corresponding disbursement voucher no. 101-9803-328,
13
certificates of inspection and acceptance, contract between LPC and the
Municipality of Castillejos, Zambales, price quotation, purchase order, and
LPC official receipt number 000999 dated 5 January 1998, to falsely make
it appear that LPC entered into, undertook and completed the said contract
and received the aforesaid amount as payment therefor from the
Municipality of Castillejos, Zambales, when in truth and in fact, LPC neither
entered into, undertook and completed the aforesaid contract nor received
from the Municipality of Castillejos, Zambales the said sum of money or
any part thereof, to the damage and prejudice of the Municipality of
Castillejos, Zambales and the public interest in the aforestated amount.
CONTRARY TO LAW.[5]
Criminal Case No. 25862
That on or about 23 February 1998, or sometime prior or subsequent
thereto, in the Municipality of Castillejos, Province of Zambales,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, both public officers, then being the Municipal Mayor and
Municipal Treasurer, respectively, both of the Municipality of Castillejos,
Zambales who by reason of their said respective office are accountable for
public funds or properties, committing the complex crime charged herein
while in the performance of, in relation to and/or taking advantage of their
official positions and functions as such, and conspiring and confederating
with one another, did then and there, willfully, unlawfully and feloniously
appropriate, take or misappropriate public funds of the Municipality of
Castillejos, Zambales under their charge and custody in the amount of
P154,634.27 Philippine currency, under the check dated 23 February 1998
intended for the simulated disbursement and payment thereof in favor of La
Paz Construction (LPC) relative to the fictitious contract for the upgrading
of the barangay roads in Barangay Looc proper-Casagatan, Nagbayan
proper-Angeles and San Pablo-Sitio Isidro, Castillejos, Zambales; by
means of falsifying the corresponding disbursement voucher no. 101-9803-
349, certificates of inspection and acceptance, contract between LPC and
the Municipality of Castillejos, Zambales, purchase order, and LPC official
receipt, to falsely make it appear that LPC entered into, undertook and
completed the said contract and received the aforesaid amount as payment
therefor from the Municipality of Castillejos, Zambales, when in truth and in
fact, LPC neither entered into, undertook and completed the aforesaid
contract nor received from the Municipality of Castillejos, Zambales the
said sum of money or any part thereof, to the damage and prejudice of the
Municipality of Castillejos, Zambales and the public interest in the
aforestated amount.
CONTRARY TO LAW.[6]
Criminal Case No. 25863
That on or about 20 March 1998, or sometime prior or subsequent thereto,
in the Municipality of Castillejos, Province of Zambales, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused,
both public officers, then being the Municipal Mayor and Municipal
Treasurer, respectively, both of the Municipality of Castillejos, Zambales
who by reason of their said respective office are accountable for public
funds or properties, committing the complex crime charged herein while in
the performance of, in relation to and/or taking advantage of their official
positions and functions as such, and conspiring and confederating with one
another, did then and there, willfully, unlawfully and feloniously appropriate,
take or misappropriate public funds of the Municipality of Castillejos,
Zambales under their charge and custody in the amount of P90,464.21,
Philippine currency, under the check dated 20 March 1998 intended for the
simulated disbursement and payment thereof in favor of La Paz
Construction (LPC) relative to the fictitious contract for the construction of
market stalls at the public market of Castillejos, Zambales, by means of
falsifying the corresponding disbursement voucher no. 101-9804-415,
certificates of inspection and acceptance, contract between LPC and the
Municipality of Castillejos, Zambales, price quotation, purchase order, and
LPC official receipt number 000995 dated 20 March 1998, to falsely make it
appear that LPC entered into, undertook and completed the said contract
and received the aforesaid amount as payment therefor from the
Municipality of Castillejos, Zambales, when in truth and in fact, LPC neither
entered into, undertook and completed the aforesaid contract nor received
from the Municipality of Castillejos, Zambales the said sum of money or
any part thereof, to the damage and prejudice of the Municipality of
Castillejos, Zambales and the public interest in the aforestated amount.
CONTRARY TO LAW.[7]
The appellants pleaded not guilty to the charges upon arraignment. The prosecution filed a
motion to suspend the accused pendente lite after their arraignment.[8] The Sandiganbayan
(Fourth Division) granted the motion and ordered the preventive suspension of the appellants
for 90 days.[9] The appellants filed a motion for reconsideration[10] which the Sandiganbayan

denied.[11] The appellants filed with this Court a petition for review on certiorari, docketed
as G.R. No. 145030, assailing the Sandiganbayan Resolutions of August 16, 2000 and
September 12, 2000, respectively. We denied the petition for lack of merit.[12]
In the trial on the merits of Criminal Cases Nos. 25861-63 that followed, the prosecution (e)
presented the following witnesses: Engr. Ramos, Aurelio, Nida Naman (Nida), Alberto
Domingo (Alberto), Engineer Eduardo Soliven (Engr. Soliven), Simeon Amor Viloria
(Simeon), Ken Swan Tiu, Resty, Vice Mayor Billman, Enrique, and Reynaldo. The appellants,
Quirino Adolfo (Quirino), Ricardo Abaya (Ricardo), Crisanta Ancheta (Crisanta), and John (f)
Baquilat (Baquilat) took the witness stand for the defense.
14
allotment (Exh. B-9 and C-5) attached to these disbursement vouchers were not
signed by the municipal accountant and by the budget officer;
The contract agreement attached to Disbursement Voucher No. 101-9803-349 (Exh.
B) was not notarized. No abstract of bids and authority to enter into a negotiated
contract were attached to the voucher; and
The certificate of acceptance (Exh. C-7), attached to Disbursement Voucher No.
101-9804-415 (Exh. C), was undated.

Evidence for the Prosecution She reiterated that the vouchers were all approved by Pantaleon, although they did not pass
through her office for pre-audit. She likewise explained that the certification of the accountant
Engr. Ramos testified that he was designated as acting municipal engineer of Castillejos, and the budget officer were necessary even if the funds were sourced from the development
Zambales by Pantaleon in January 1998; and that he prepared three (3) programs of work fund.[18]
upon the instructions of Vallejos. The first two (2) programs of work, dated January 5, 1998
and January 14, 1998, respectively, were for the upgrading of barangay roads; the third, also Alberto testified that he had not seen any upgrading of roads in his area since he was
dated January 5, 1998, was for the construction of market stalls. He confirmed that the three elected barangay captain of Looc, Castillejos, Zambales in 1997. He also admitted that he
(3) signatures affixed in these programs of work belonged to him, to Pantaleon, and to signed a document before the Sangguniang Bayan attesting that Pantaleon did not have any
Vallejos, respectively; and declared that he never implemented any of these projects. He project in his barangay.[19]
later discovered that these projects had already been implemented by the previous municipal
engineer; hence, the programs of work and subsequent disbursements were not really Engr. Soliven, the Municipal Engineer of Castillejos, narrated that Pantaleon appointed him
needed.[13] municipal engineer on September 16, 1998 as replacement for Engr. Ramos. He stated that
he did not know if there were projects implemented in the various barangays of Castillejos
On cross-examination, he stated that he was asked to prepare the programs of work in because he was not yet the municipal engineer when these projects were planned. He
March 1998; that he submitted the programs upon completion to Vallejos who told him that likewise maintained that he never implemented these projects.[20]
he (Vallejos) would give them to Pantaleon for approval. He assumed the programs of work
were disapproved because nobody coordinated with him regarding their implementation.[14] Simeon, the Municipal Planning Coordinator of Castillejos, testified that he prepared
comprehensive plans and programs for the municipality, and that his tasks also included the
On re-direct examination, Engr. Ramos explained that Pantaleon and Vallejos instructed him formulation, integration and coordination of different municipal projects. He stated that he
to place dates earlier than March 1998 in the three (3) programs of work, although he prepared the municipal development plans for the fiscal years 1997 and 1998, and these
prepared them only in March 1998.[15] plans were approved by the Sangguniang Bayan. He clarified that the municipal engineer
can implement projects that are not included in the municipal development plan.[21]
Aurelio, a member of the Sangguniang Bayan of Castillejos, testified that the public market
of Castillejos was built after the eruption of Mt. Pinatubo in 1991; and that it was renovated Ken Swan Tiu (also known as Sonny Tiu, Tiu Ken Swan and Ken Swan Lee Tiu), owner of
by Engr. Clarin during the incumbency of former mayor Enrique Magsaysay. He declared that the La Paz Construction, admitted that he executed an affidavit dated January 14, 1999
no market stall was constructed in the public market in 1998 and 1999, and no upgrading, stating that he did not enter into any negotiated contract with the Municipality of Castillejos,
excavation, and back filling of any barangay road likewise took place in 1998 in Castillejos. and that his company never received any payment from the municipality. He stated that the
He added that no infrastructure project could have been made in January 1998 because it signatures in the vouchers were not his, and reiterated that he did not have any transaction
was an election period.[16] with the Municipality of Castillejos. He added that he has no agent to collect or enter into
transactions in his behalf.[22]
On cross-examination, Aurelio declared that he, together with other Sanggunian members,
examined the disbursement vouchers and other documents related to the projects covered Resty, a former Sangguniang Kabataan President and incumbent municipal councilor,
by the program of works after they learned that disbursements were made to La Paz declared on the witness stand that he is a resident of Barangay San Pablo, Castillejos, and
Construction; that they (Sanggunian members) filed a case before the Provincial Prosecutor that from 1998 to 2000, he did not see any road project for the upgrading, compacting or
of Olongapo City after discovering that the purported transactions were anomalous. He improvements of roads in his barangay. He also stated that he was one of the complainants
stated that La Paz Construction never entered into a contract with the Municipality of in the administrative case against the appellants before the Sangguniang Panlalawigan.
Castillejos as confirmed by its proprietor, Ken Swan Lee Tiu. He added that the projects Further, he said that the vouchers for these projects were not dated.[23]
covered by the disbursement vouchers were not among those included in the approved
development plan for the years 1996 to 1998; and that, surprisingly, the disbursement Evidence for the Defense
vouchers indicated that the funds used to cover these projects were charged from the 20% Vallejos, testifying in his defense, narrated that he had been the municipal treasurer of
development fund.[17] Castillejos since 1987; and that his principal duties were to collect taxes and disburse
Nida, the senior bookkeeper of Castillejos, testified that Pantaleon designated her as funds. He explained that a disbursement voucher should first pass through the accounting
municipal accountant in 1993, and that she occupied the position until July 1998; as a office, then to the office of the budget officer, and from there, to the office of the municipal
municipal accountant, she reviewed documents for the preparation of vouchers. She recalled mayor, before going to his office. He confirmed that he is the last person to sign the voucher.
that she reviewed Voucher Nos. 101-9804-415, 101-9803-328 and 101-9803-349 only after He clarified that after his office has prepared checks based on the forwarded vouchers, these
the indicated amounts had been paid. vouchers are returned to the accounting office for the creation of an accounting entry and for
She explained that a voucher is certified by the local budget officer and by the municipal the posting of the entry in the general and subsidiary ledgers. The accounting office then
accountant, and that without her signature, a voucher is defective for failure to comply with issues an advice that the checks are ready for encashment.
government auditing and accounting rules and regulations. She also revealed that the He refuted the statement of Nida that the disbursement vouchers did not go through the
following irregularities attended the issuance of the vouchers: accounting office for pre-audit. He stated that the signature of the accountant did not appear
in the three (3) vouchers because Nida simply refused to sign it. He also insisted that the
(a) Martin Pagaduan (Pagaduan), the present municipal accountant, signed Voucher No. budget officers signature likewise did not appear in the vouchers because she was always
101-9803-328 (Exh. A) above her (Nidas) name without her authority. Pagaduan out of her office. He explained that he paid the vouchers despite the absence of the
was not yet the municipal accountant at the time of the issuance of the voucher; he accountants signature because the projects were already completed and the sub-contractor
was only designated as municipal accountant on January 1, 1999; was already demanding payment and was threatening to sue him if he would not pay.
(b) Pagaduan also similarly signed some of the documents attached to Voucher No. 101- He further recalled that the vouchers were suspended after they were submitted to the
9803-328, such as the purchase orders (Exh. A-4 to A-6) and the request for Commission on Audit (COA); he was given 90 days to complete the entries in the vouchers
obligation allotment (Exh. A-9); and produce the supporting papers.[24]
On cross-examination, he reiterated that he signed the vouchers because the municipal
(c) Vallejos wrote the voucher number and filled up the accounting entry of Disbursement
accountant and budget officer refused, without any valid or legal reason, to sign them.[25]
Voucher No. 101-9803-328 (Exh. A). She should have filled up these entries in her
capacity as municipal accountant. Some of the documents attached to Disbursement Quirino, the Barangay Captain of Nagbayan, Castillejos, Zambales, testified that he
Voucher No. 101-9803-328 (Exh. A), such as the purchase request, purchase order, supervised numerous projects in his barangay during the incumbency of Pantaleon; that from
and request form, were not the documents required by the rules; January to February of 1998, he supervised the back filling and leveling of the roads in
his barangay together with a certain Eduardo Escobar and Kagawads Lorenzo and Corpuz.
(d) Disbursement Voucher Nos. 101-9803-349 (Exh. B) and 101-9804-415 (Exh. C) He admitted to signing an affidavit dated July 2, 1999 stating that there were projects done in
did not bear her (Nidas) signature. Their voucher numbers and accounting entries his barangay; he merely signed the certification on December 10, 1998 (stating that there
were written and filled up by Vallejos. In addition, the request for obligation of
 15
were no projects done by the administration of Pantaleon in his area) Ken Swan Tiu, again testifying for the prosecution, denied that he: (a) lent his license as a
because Kagawads Enrique Clarin and Reynaldo Misa were his compadres.[26] contractor to Baquilat; (b) entered into a contract with the Municipality of Castillejos; (c)
entered into a subcontracting agreement with Baquilat; and (d) lent official receipts issued to
Ricardo declared on the witness stand that he was the barangay captain of Nagbayan from La Paz Construction to Baquilat.[36]
1971 to 1986 and subsequently served as councilor for three (3) terms; that from 1996 to
1998, he saw that there were back filling, grading, compacting and widening of roads in his On cross-examination, he stated that he had been a contractor since 1992, but never
area; and that it was Pantaleon and Baquilat as mayor and contractor, respectively who transacted with the Municipality of Castillejos. He stated that La Paz Construction lost some
caused the repair of these roads. receipts in 1994 during the flood; he discovered in 1999 that Baquilat had been using these
receipts.[37]
On cross-examination, he admitted that Pantaleon employed him as a casual employee in
1999 and, as such, had no authority to sign vouchers.[27] After trial, the Sandiganbayan set the case for promulgation of decision on July 4, 2002, but
later moved the promulgation to August 1, 2002.
Pantaleon, mayor of Castillejos, Zambales, testified that he had served as mayor for eight
and a half years before he was preventively suspended. He explained that a voucher Pantaleon and Vallejos filed their separate motions to reopen trial with urgent motion to defer
originates from the accounting office and then goes to the budget office; from there, it goes to the promulgation of the Sandiganbayan decision.[38] The Sandiganbayan denied these
him for his signature, and, finally, to the treasurer for signature; he signed the vouchers and motions.[39] The Sandiganbayan similarly denied the omnibus motion for reconsideration that
allowed the treasurer to pay the amounts stated because the accountant and the budget followed.[40]
officer were reluctant to sign; the signatures of the accountant and budget officer were not
important. He added that he approved the release of the money because the treasurer told The appellants filed an omnibus motion seeking the reconsideration of the December 14,
him that there was an appropriation in the approved annual budget. He also insisted that the 2002 Resolution, but the Sandiganbayan denied this motion in its Resolution dated January
owner of La Paz Construction entered into a contact with the municipality. 20, 2003. The appellants later on questioned these resolutions through a petition
for certiorari and prohibition filed with this Court, docketed as G.R. Nos. 156778-80. This
He maintained that he physically inspected the projects, and ordered the treasurer to pay Court, in our resolution dated February 17, 2003, dismissed the petition.
because the project in Nagbayan road had been completed. He revealed that he received a
notice from the Provincial Auditor stating that the disbursement of funds was irregular due to THE SANDIGANBAYAN RULING
the lack of signatures of the accountant and budget officer, and that the vouchers were The Sandiganbayan convicted the appellants of the crimes charged in Criminal Case Nos.
subsequently suspended. He then ordered the treasurer to rectify the deficiencies in the 25861-63. It held that the testimonies of the prosecution witnesses, supported by the
vouchers.[28] documentary evidence, established all the elements of the complex crime of malversation of
On cross-examination, he admitted that the Sanggunian did not adopt a resolution public funds through falsification of public documents under Article 217, in relation with
authorizing him to enter into a negotiated contract with La Paz Construction in the Articles 171 and 48 of the Revised Penal Code. It found unacceptable the testimonies of the
municipalitys behalf. He also stated that the treasurer told him that the municipal accountant appellants and characterized these as self-serving. The dispositive portion of this decision
and budget officer asked for a commission before signing the vouchers, but he did not (dated February 2, 2003) reads:
confront them about the demanded commission because he did not want to embarrass them. WHEREFORE, the accused, TEOFILO G. PANTALEON, JR., and JAIME
He admitted that he signed the vouchers despite the absence of the signatures of the F. VALLEJOS, are hereby found GUILTY beyond reasonable doubt of the
accountant and budget officer. crime of MALVERSATION OF PUBLIC FUNDS THRU FALSIFICATION, in
He also admitted that he entered into a contract with Baquilat without inquiring if Baquilat was three counts, as defined and penalized under Article 217 in relation to
authorized by the La Paz Construction to enter into a contract with the municipality. He Articles 48 and 171 of the Revised Penal Code, and each of said acc`ed is
explained that he gave more importance to the implementation of a project than to its hereby sentenced in Criminal Case Nos. 25861, 25862, and 25863,
documentation. Since the compacting and leveling of the road were finished, he believed the respectively, to suffer three times the penalty of reclusion perpetua, to
municipal accountant and budget officer would later sign the vouchers. suffer the penalty of perpetual special disqualification and to pay a fine in
the amounts of P166,242.72, P154,634.27, and P90,464.21, respectively,
He confirmed that Baquilat had dealt with the municipality many times as the representative and to pay the costs.
of La Paz Construction, and he does not know why La Paz Construction would now deny its
link with Baquilat. He also stated that Baquilat, Aurelio, and the complainants have been his SO ORDERED.[41] [Emphasis in the original]
political supporters, but they now hold personal grudges against him.[29] Post-Sandiganbayan Developments
Crisanta, a market vendor in Castillejos, testified that there were market stalls and drainage and the Appeal
constructed in 1998, although she did not know who constructed them.[30] Vallejos moved on February 17, 2003 to reconsider the decision.[42] Pantaleon, for his part,
Baquilat declared on the witness stand that he put up a construction business in 1997 after moved on February 18, 2003 for a new trial (with prayer to set aside judgment).[43] The
resigning from the Benguit Corporation; and that he had various contracts with the province Sandiganbayan denied these motions for lack of merit.[44]
of Zambales. He recalled that he collected P400,000.00, more or less, from the municipality The records of the case were forwarded to this Court after the appellants filed their
after completing construction projects in 1997 and 1998. These projects included the respective notices of appeal. In our Resolution of September 13, 2004,[45] we transferred the
upgrading of the roads in Barangays Looc, Casagatan, Nagbayan, and San Pablo, as well as case to the CA for appropriate action and disposition pursuant to People v. Mateo.[46]
the repair of market stalls in Castillejos. He stated that the authority given to him by Sonny
Tiu, the owner of La Paz Construction, to receive the money in behalf of La Paz The records disclose that Pantaleon was granted a conditional pardon on June 8,
Constructionwas merely verbal; contractors, as a usual practice, rely on verbal authority. He 2006.[47] Pantaleon filed on June 20, 2006 with the CA an urgent motion to withdraw
added that his license as a contractor had been used many times by other contractors even appeal.[48] The CA denied the motion in its Resolution of July 7, 2006.[49] CA Associate
without his knowledge, and revealed that he had borrowed the license of Sonny Tiu when he Justice Arcangelita M. Ronilla-Lontok thereafter returned the entire records of the case to this
had a contract with the Municipality of Castillejos. He acted as a subcontractor for the La Court reasoning out that the CA has no jurisdiction over the case pursuant to Sec.1[b] and
Paz Construction, but failed to fully perform his duty as subcontractor because he did not see [c], Rule X of the Revised Internal Rules of the Sandiganbayan.[50] On September 24, 2007,
Sonny Tiu again. He paid his taxes as a subcontractor, but not Sonny Tius percentage.[31] this Courts First Division issued a Resolution reinstating the case in its docket.[51]
On cross-examination, he admitted that he received payments through his secretary from the Pantaleon filed with this Court on November 19, 2007 an urgent motion to withdraw his
municipality in behalf of La Paz Construction in 1998 to 1999; and that he received appeal.[52] We granted this motion in our Resolution of December 5, 2007,[53] and issued the
P400,000.00, more or less, for the three (3) projects he did for the municipality.[32] corresponding entry of judgment on February 8, 2008.[54] Thus, this Decision at this point
relates solely to appellant Vallejos. In the discussions that follow, however, we shall still refer
The Prosecutions Rebuttal Evidence to the parties as appellants because of the linkages that exist between them as common
The prosecution presented Vice Mayor Billman, Engr. Clarin, Reynaldo and Ken Swan Tiu as perpetrators of the offenses charged.
rebuttal witnesses. In his brief, appellant Vallejos argued, among others, that the Sandiganbayan erred
Vice Mayor Billman, the acting Municipal Mayor of Castillejos, testified that there was no 1. in convicting him of the crime charged despite merely occupying a
upgrading and improvement of roads in Barangay Nagbayan in 1998 when she was vice salary grade (SG) 24 position;
mayor.[33]
2. in convicting him of the crime charged despite the absence of notice
Engr. Clarin, an incumbent Municipal Councilor of Castillejos, denied that he forced Quirino to restitute from the Provincial Auditor of Zambales;
to sign a certification that there were no projects undertaken by the municipality.[34]
3. in convicting him of the crime charged despite merely acting
Reynaldo, testified that he was a municipal councilor in 1998; he admitted that Quirino was ministerially on the disbursement vouchers in question; and
his friend and compadre, but denied that he forced Quirino to sign any certification.[35]
4. in finding that a conspiracy existed between him and Pantaleon.
 16
THE COURTS RULING 7160 is to take custody and exercise proper management of the funds of the local
government unit concerned.
We DENY the appeal for lack of merit.
Pantaleon, as municipal mayor, was also accountable for the public funds by virtue of
Sufficiency of Prosecution Evidence Section 340 of the Local Government, which reads:
Malversation is defined and penalized under Article 217 of the Revised Penal Code, which Section 340. Persons Accountable for Local Government Funds. Any
reads: officer of the local government unit whose duty permits or requires the
Art. 217. Malversation of public funds or property Presumption of possession or custody of local government funds shall be accountable and
malversation. Any public officer who, by reason of the duties of his office, responsible for the safekeeping thereof in conformity with the provisions of
is accountable for public funds or property, shall appropriate the same, or this title. Other local officials, though not accountable by the nature of their
shall take or misappropriate or shall consent, or through abandonment or duties, may likewise be similarly held accountable and responsible for local
negligence, shall permit any other person to take such public funds or government funds through their participation in the use or application
property, wholly or partially, or shall, otherwise, be guilty of the thereof.
misappropriation or malversation of such funds or property, shall suffer: In addition, municipal mayors, pursuant to the Local Government Code, are chief executives
xxxx of their respective municipalities. Under Section 102 of the Government Auditing Code of the
Philippines, he is responsible
4. The penalty of reclusion temporal in its medium and maximum periods, if for all government funds pertaining to the municipality:
the amount involved is more than 12,000 pesos but is less than 22,000
pesos. If the amount exceeds the latter, the penalty shall be reclusion Section 102. Primary and secondary responsibility. (1) The head of any
temporal in its maximum period to reclusion perpetua. agency of the government is immediately and primarily responsible for
all government funds and property pertaining to his agency.
In all cases, persons guilty of malversation shall also suffer the penalty of
perpetual special disqualification and a fine equal to the amount of the The appellants appropriated, took, misappropriated
funds malversed or equal to the total value of the property embezzled. or consented or, through abandonment or negligence,
permitted another person to take the public funds
The failure of a public officer to have duly forthcoming any public funds or
property with which he is chargeable, upon demand by any duly authorized We note at the outset that no less than the Sangguniang Panlalawigan of Zambales, in its
officer, shall be prima facie evidence that he has put such missing funds or decision of April 3, 2000, already made a finding that the projects subject of Disbursement
property to personal uses. Voucher Nos. 101-9803-328, 101-9803-349, and 101-9804-415 were never implemented in
1998.
The essential elements common to all acts of malversation under Article 217 of the Revised
Penal Code are the following: This finding was corroborated by several witnesses during the trial. Engr. Ramos, in his
testimony of August 22, 2000 and speaking as the municipal engineer in charge of municipal
(a) That the offender be a public officer. constructions, stated that the he never implemented the projects subject of the
disbursement vouchers. To directly quote from the records:
(b) That he had the custody or control of funds or property by reason of the duties of his PROSECUTOR JACQUELYN ONGPAUCO-CORTEL
office.
Q: Now, in your stay as acting municipal engineer in Castillejos, Zambales, what
(c) That those funds or property were public funds or property for which he was documents did you prepare?
accountable.
ENGR.
(d) That he appropriated, took, misappropriated or consented or, through abandonment or RAMOS
negligence, permitted another person to take them.

Appellants are public officers A: I prepared three (3) programs of works, namely: the two (2) were up-grading of
barangay roads and the third one was the construction of the market stall.
A public officer is defined in the Revised Penal Code as any person who, by direct provision
of the law, popular election or appointment by competent authority, shall take part in the
performance of public functions in the Government of the Philippine Islands, or shall perform Q: Now, Mr. Witness, you mentioned of three (3) programs of works, now, showing
in said Government or in any of its branches public duties as an employee, agent, or to you program of work dated January 5, 1998, is this the one you were referring
subordinate official, of any rank or class.[55] Pantaleon and Vallejos were the municipal to?
mayor and municipal treasurer, respectively, of the Municipality of Castillejos at the time of
the crimes charged. In short, they were public officers within the meaning of the term as A: Yes, maam.
defined above.
xxx
Appellants had the custody and control of funds
or property by reason of the duties of their office
Q: Can you please state before this Honorable Court what is the purpose of this
As a required standard procedure, the signatures of the mayor and the treasurer are needed program of work?
before any disbursement of public funds can be made. No checks can be prepared and no
payment can be effected without their signatures on a disbursement voucher and the
corresponding check. In other words, any disbursement and release of public funds require A: I was instructed to make that program of work but I never implemented those
their approval. The appellants, therefore, in their capacities as mayor and treasurer, had projects anymore.
control and responsibility over the funds of the Municipality of Castillejos.
The appellants were xxx
accountable for public funds
Q: Now, showing to you another program of work, Mr. Witness, dated January 14,
The funds for which malversation the appellants stand charged were sourced from the 1998, is this also a part of this program of work which you mentioned earlier?
development fund of the municipality. They were funds belonging to the municipality, for use
by the municipality, and were under the collective custody of the municipalitys officials who
had to act together to disburse the funds for their intended municipal use. The funds were A: Yes, maam.
therefore public funds for which the appellants as mayor and municipal treasurer were
accountable. xxx
Vallejos, as municipal treasurer, was an accountable officer pursuant to Section 101(1) of
P.D. No. 1445 which defines an accountable officer to be every officer of any government Q: Can you state before this Honorable Court if this project was implemented?
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. Among the duties of Vallejos as treasurer under Section 470(d)(2) of Republic Act No. A: Likewise, maam, I never did implement such project.
 17
xxx ENGR. RAMOS

Q: Now, showing to you another program of work, Mr. Witness, dated January 5, A: Yes, maam.
1998, is this the part and parcel of what you have mentioned earlier?
Q: And that there is no need for the preparation of this program of work and
A: Yes, maam. disbursement of another money for that project?

xxx A: Yes, maam.

Q: And can you state before this Honorable Court if the project was implemented xxx
in 1998 Mr. witness?
ASSOCIATE JUSTICE NARIO
A: No, maam.
Q: Now, its on the basis of this program of work that the disbursements, issue
xxx voucher, the check and other relevant documents were paid because of this
program of work that you prepared?

Q: Going back to the sites of the projects Mr. Witness, did you actually see the sites
of the intended projects? A: Yes, Your Honor.[56] [Emphasis ours]

Aurelio, a Sangguniang Bayan member, likewise testified that no construction work was
A: Yes, maam. undertaken on various barangay roads and in the public market of Castillejos in 1998:

PROSECUTOR CORTEL
Q: What did you see?

Q: But do you know if there is a construction of the market stall, public market done in
A: They were already existing at that time.
1998, Mr. Witness?

Q: What do you mean by that Mr. Witness?

AURELIO FASTIDIO

A: The municipal engineer did implement those projects before.

A: None, maam.

Q: When were these projects actually implemented Mr. Witness? Before?

Q: In 1999?

A: Yes, maam.
A: None, maam.

Q: When?
Q: Going to Voucher No. 101-9803-328 Mr. Witness for the upgrading, excavation,
back filling of barangay roads, Mr. Witness, do you know if there is upgrading,
A: As Ive said, they were already existing before I made those programs of excavation and back filling of certain barangay roads in your area?
work.
A: None, maam.
ASSOCIATE JUSTICE NARCISO S. NARIO (Chairman)
Q: How many barangay roads do you have in that area, Mr. Witness?
Q: What were these projects that according to you were already existing? What are
these projects?
A: We have many barangay roads, maam.

ENGR. RAMOS
Q: And do you know if in 1998 there is the upgrading, excavation and back filling of
many barangay roads?
A: The upgrading of the barangay roads, Your Honor.
A: None, maam.
Q: Upgrading of the barangay roads? What barangays are these?
Q: Not even one, Mr. Witness.
A: Barangay Looc proper, Barangay Magsaysay and Barangay San Pablo.
A: Yes, maam.[57] [Emphasis ours]
Q: What else?
Alberto, the Barangay Captain of Looc, also declared on the witness stand during his
September 7, 2000 testimony that no project was undertaken in his barangay during the
A: And the construction of the market stalls located in the public market. tenure of Pantaleon. Resty, a municipal councilor, likewise testified on September 12, 2000
that there was no upgrading, compacting and leveling of roads in Barangay San Pablo in
Q: These projects were already existing? 1998.
Despite the non-existence of the projects covered by the three (3) disbursement vouchers,
A: Yes, Your Honor. and despite the fact that these vouchers never went through the accounting office and the
office of the local budget officer for pre-audit and certification, the appellants still signed
PROSECUTOR CORTEL them. We quote Pantaleons admission in his January 31, 2001 testimony:

ATTY. RODOLFO REYNOSO

Q: Meaning to say, Mr. Witness, that before they applied, before the preparation
of the programs of works and disbursement of the amount as indicated
Q: Okay. An issue of pre-audit was brought when the accountant testified earlier that
thereon, the projects you have mentioned are already existing?
allegedly you did not require them or you just signed the voucher without requiring
the budget officer or the accountant to affix their signatures, what can you say
 18
about that? xxx

TEOFILO PANTALEON, JR.

ASSOCIATE JUSTICE NICODEMO T. FERRER:
A: I asked. When the treasurer came into my office, he asked me about the non-
signatures of the accountant and the budget officer, sir. So I called up their
attention and they were adamant, they were hesitant to sign. I called up again the
treasurer why it is [sic] because they were asking for a commission as per the Q: A while ago, you said that this alleged sub-contractor encashed the checks issued
treasurer said to me, Your Honor. to him, can you show the encashment made by the contractor?

xxx

A: It was in the bank, maam.

Q: In other words, Mr. Witness, after informing the accountant and the budget
officer that they have not signed the voucher, you already signed it even
without their signature, did I get you right?
Q: Where is it now?
A: Yes, sir.

Q: And you allowed the treasurer to pay?

A: It was in the Land Bank, maam.
A: Yes, sir.

xxx xxx

ASSOCIATE JUSTICE NARIO

Q: You said that in the signing of the vouchers, you are the last signatory?
Q: So despite the absence of the signatures of the accountant and the budget
officer, you went through signing these vouchers? (sic)

TEOFILO PANTALEON, JR. A: Yes, maam.

A: Yes, Your Honor.

Q: Meaning to say, all the signatories precedent to you must sign first before you sign?
x x x[58] [Emphasis ours]

Vallejos, in his testimony of October 18, 2000, likewise admitted signing the disbursement
vouchers: A: Yes, maam.
ASSOCIATE JUSTICE RODOLFO G. PALATTAO

Q: Now, in these particular cases, the accountant and the budget officer did not
affix their signatures?
Q: In other words, since you considered the refusal of the accountant to sign the
vouchers as accompanied by bad faith, you decided to ignore the requirement of
her signature and you allowed payment?
A: Yes, maam.

JAIME VALLEJOS
Q: And despite that fact, you signed the disbursement vouchers?

A: Yes, your Honor, because the sub-contractor threatened me for not paying the
vouchers, besides, that will cause injury to him.
A: Yes, maam.

xxx
x x x[59] [Emphasis ours]

Significantly, the appellants did not deny that they allowed the release of the public funds,
but maintained that the money went to Baquilat as representative and/or subcontractor of La
Q: Mr. Witness, do you recall where were the funds coming from in paying the Paz Construction. This was confirmed by Baquilat himself when he admitted, in his February
projects? 8, 2001 testimony, receipt of P400,00.00, more or less, from the Municipality of Castillejos for
the three (3) construction projects he allegedly did in 1998. However, Ken Swan Tiu, the
owner of La Paz Construction, vehemently denied that he contracted with the Municipality of
Castillejos:
A: Yes, sir, there were two sources of fund, under the Engineering Office maintenance
and other operating expenses, roads and bridges maintenance, and 20% PROSECUTOR CORTEL
development funds.
Q: Mr. Witness, in connection with these cases, do you remember having received
payments from the municipality of Castillejos, Zambales?
 19
KEN SWAN TIU Q: You said that you have not made any contract with the municipality, did I get
you right?
A: No, I did not receive any single centavo from the government of Castillejos.
A: Yes, sir.
xxx
Q: You are a witness charging the accused here of an alleged contract entered into
between the accused and your company and you deny did I get you right?
Q: Now, Mr. Witness, I would like to show to you vouchers which would indicate that
the claimant or the payee is La Paz Construction of San Marcelino, Zambales.
Now, Mr. Witness in Exhibit A, Disbursement Voucher No. 101803-328, do you A: Yes, sir.
remember having received the amount of One Hundred Sisty Six Thousand Two
Hundred Forty-Two Pesos and Seventy-Two Centavos (P166,242.72)?
Q: So insofar as you are concerned, there was no contract between you and the
municipality?
(WITNESS GOING OVER THE VOUCHER SHOWN TO HIM BY THE PUBLIC
PROSECUTOR)
A: Precisely.[60] [Emphasis ours]

A: No, maam. I did not receive any. Ken Swan Tiu likewise testified that Baquilat was not in any way connected with the La Paz
Construction. We quote his June 7, 2001 testimony:
Q: In Disbursement Voucher No. 1019803-349 wherein the payee is La Paz
Construction also of San Marcelino, Zambales, do you remember having received
the amount of One Hundred Fifty-Four Thousand Six Hundred Thirty-Four Pesos
and Twenty-Seven Centavos (P154,634.27)?
PROSECUTOR CORTEL

A: No, maam.

xxx

Q: Now, Exhibit A Mr. Witness I would like to point to you a portion wherein the Q: Mr. Witness, in his (Baquilats) testimony in open court, he declared that you let him
recipient appears to be La Paz Construction, San Marcelino, Zambales in the borrow, you lent him your license as a Contractor, is that true, Mr. Witness?
amount of Two Hundred Forty-Two Pesos [sic]. Do you know whose signature that
is appearing on top of the typewritten name of La Paz Construction?

KEN SWAN TIU

A: No, maam. I dont recognize this signature and I dont have any agent to collect
this amount.

xxx A: No, maam. We dont have any agreement with that, and I am not lending my own
company, my license to them because they have their own company.
Q: Now, what about in Exhibit B wherein the recipient appears to be La Paz
Construction, whose signature appears on top of the typewritten name of La Paz
Construction?
Q: Okay. Mr. Witness, he also declared in open court that you sub-contracted him in
connection with the projects undertaken by then Mayor Pantaleon in the
A: Yes, maam. The same, I dont recognize the signature and I dont have any Municipality of Castillejos, what can you say to that?
transaction with the municipality of Castillejos.

Q: Now, in connection with Exhibit C, there also appears a signature who was a
recipient of the amount of Ninety Thousand Four Hundred Sixty- Five and Twenty- A: No, Maam, I dont have any construction with the government of the Municipality of
One Centavos (P90,465.21), whose signature is that? Castillejos, and sub-contracting, I dont have this idea on my mind because I dont
enter in this construction, Maam. (sic)
A: Yes, maam. The same, the signature I dont recognize and I dont have any agent
or collecting agent or any transaction with the officials of the municipality of
Castillejos.
xxx

xxx

ATTY. REYNOSO ATTY. MARK M. AVERILLA

Q: So in other words, in all transactions from the very beginning that you have
transacted with the municipality, you are the only one who transacted with the Q: Is your testimony, Mr. Witness, therefore that you have not entered into a sub-
municipality? construction agreement with Mr. John Baquilat pertaining to that project in
Castillejos, Zambales?
A: I dont have any transaction with the Municipality of Castillejos.

Q: Even before this alleged incident took place?

A: Yes, sir.

A: I said I dont have any, sir.

xxx Q: Is it therefore your testimony that Mr. Witness that Mr. John Baquilat, who testified
earlier declaring in open court that you authorized him to use La Paz Construction
as the entity to enter into contract with the Municipality of Castillejos, that he was

lying [sic]?
A: Of course we dont have any agreement on that, and I dont have any contract
(interruption)
Q: Yes, Sir, so you are saying that he was lying? Is that your testimony?
A: I dont know, Sir, because I just encountered that there is a sub-contractor who
came out. Actually, in myself, I dont have any construction here with the
government of Castillejos. How come there exists a sub-Contractor? [sic].
x x x[61] [Emphasis ours]
These testimonies lead to no other conclusion than that the appellants had deliberately
consented to or permitted the taking of public funds by Baquilat despite the fact that (1) La
Paz Construction never entered into a contract with the Municipality of Castillejos; (2)
Baquilat was not an agent, representative or subcontractor of La Paz Construction; (3) the
projects covered by the disbursement vouchers in question never existed; and (4) the
disbursement vouchers lacked the requisite signatures of the municipal accountant and the
local budget officer. In short, they resorted to machinations and simulation of projects to
draw funds out of the municipal coffers.
The circumstances established during trial and outlined below likewise show the anomalous
circumstances that attended the disbursement of the public funds.
Pantaleon himself admitted that he was not authorized by the Sanggunian to enter into a sentiments. In conspiracy, the act of one is the act of all. Conspiracy is present when one
contract with La Paz Construction; however, he and Vallejos requested Engr. Ramos to concurs with the criminal design of another, as shown by an overt act leading to the crime
prepare three (3) antedated programs of work that later served as basis for the issuance of committed. It may be deduced from the mode and manner of the commission of the crime.[65]
the disbursement vouchers. Aurelio also declared that the projects covered by the subject
disbursement vouchers were charged from the development fund of the municipality,
although these projects were not among those included in the approved projects for the
years 1996 to 1998. Nidas testimony on the irregularities that attended the documents
supporting the vouchers were never rebutted by the defense. These irregularities were aptly
summarized by the Sandiganbayan as follows:
a. All of the three disbursement vouchers were not signed by her;
b. As to the Disbursement Voucher No. 1019802-328, the box in which she did not
sign as municipal accountant, now bears the signature of Martin Pagaduan
without her authority, after the voucher was disallowed and returned by the
Commission on Audit; Pagaduan was not yet the Municipal Accountant as he
was appointed only on January 1, 1999;
c. Required documents authority to enter into negotiated contract, plans and
specifications, abstract of bids, notarized contracts were not attached to the
voucher;
d. Voucher number and accounting entries were written by accused Treasurer
Vallejos, not the then municipal accountant (Nida Naman);
e. Also signed by Martin Pagaduan without her authority as municipal treasurer are
the three purported Certificate of Canvass attached to the Disbursement
Voucher No. 101-9803-328;
f. Official Receipt No. 000989 that appears to have been signed by John Baquilat
to acknowledge receipt of the amount covered by check no. 108952 indicated in projects despite knowledge of the absence of the signatures of the local budget officer and
Disbursement Voucher No. 101-9803-349 is not filled up.[62]
Through the appellants explicit admissions, the witnesses testimonies, and the documentary documents attached to the three (3) disbursement vouchers:
evidence submitted, the prosecution duly established the fourth element of the crime of
malversation. It is settled that a public officer is liable for malversation even if he does not
use public property or funds under his custody for his personal benefit, if he allows another
to take the funds, or through abandonment or negligence, allow such taking. [63] The
felony may be committed, not only through the misappropriation or the conversion of public
funds or property to ones personal use, but also by knowingly allowing others to make
use of or misappropriate the funds. The felony may thus be committed by dolo or by
culpa. The crime is consummated and the appropriate penalty is imposed regardless of
whether the mode of commission is with intent or due to negligence.[64]
Falsification was a necessary means
to commit the crime of malversation
20
Article 171, paragraphs (2) and (5) of the Revised Penal Code, provides:
ART. 171. Falsification by public officer, employee or notary or ecclesiastic
minister. The penalty of prision mayor and a fine not to exceed 5,000
pesos shall be imposed upon any public officer, employee, or notary who,
taking advantage of his official position, shall falsify a document by
committing any of the following acts:
2. Causing it to appear that persons have participated in any act
or proceeding when they did not in fact so participate;
xxx
5. Altering true dates;
xxx
Falsification under paragraph 2 is committed when (a) the offender causes it to appear in a
document that a person or persons participated in an act or a proceeding; and (b) that such
person or persons did not in fact so participate in the act or proceeding. In the present case,
both testimonial and documentary evidence showed that Vallejos filled up the spaces for the
voucher number and the accounting entry of Disbursement Voucher Nos. 101-9803-328,
101-9803-349 and 10-9804-415. These items were required to be filled up by Nida as the
municipal accountant. Thus, Vallejos made it appear that the municipal accountant
participated in signing the disbursement vouchers.
The appellants were likewise guilty of falsification under paragraph 5 of Article 171. Engr.
Ramos testified that Pantaleon and Vallejos instructed him to place the dates January 5,
1998 on the first and third programs of work, and January 14, 1998 on the second program of
work, although he prepared the programs only in March 1998. Thereafter, the appellants
affixed their signatures on these programs of work. The projects covered by these programs
of work served as basis for the issuance of the disbursement vouchers.
The presence of conspiracy
Conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. Conspiracy does not need to be proven by
direct evidence and may be inferred from the conduct before, during, and after the
commission of the crime indicative of a joint purpose, concerted action and concurrence of
The burden of proving the allegation of conspiracy rests on the prosecution, but settled
jurisprudence holds that conspiracy may be proven other than by direct
evidence.[66] In People v. Pagalasan,[67] the Court expounded on why direct proof of prior
agreement is not necessary:
After all, secrecy and concealment are essential features of a successful
conspiracy. Conspiracies are clandestine in nature. It may be inferred from
the conduct of the accused before, during and after the commission of the
crime, showing that they had acted with a common purpose and
design. Conspiracy may be implied if it is proved that two or more persons
aimed their acts towards the accomplishment of the same unlawful object,
each doing a part so that their combined acts, though apparently
independent of each other, were in fact, connected and cooperative,
indicating a closeness of personal association and a concurrence of
sentiment. To hold an accused guilty as a co-principal by reason of
conspiracy, he must be shown to have performed an overt act in pursuance
or furtherance of the complicity. There must be intentional participation in
the transaction with a view to the furtherance of the common design and
purpose.[68]
The prosecutions evidence glaringly shows how the appellants acted in concert to facilitate
the illegal release of public funds. First, the appellants ordered the preparation of the
programs of work, with specific instructions to antedate the submitted
programs. Second, they affixed their signatures on the antedated programs of
work. Third, the appellants signed the disbursement vouchers covering the simulated
the local accountant. Vallejos even filled up entries in the vouchers that were for the
municipal treasurer to fill up. Finally, the appellants affixed their signatures in the following
Supporting documents attached to Disbursement Voucher Nos. 101-9803-
328
a. Purchase Request (Exh. A-3);
b. Three Certificates of Canvass (Exh. A-4 to A-6);
c. Purchase Order showing La Paz Construction as the winning
bidder/contractor (Exh. A-7);
d. Certificate of Acceptance with regard to the services
rendered by La Paz Construction (Exh. A-8); and
 21
e. Request for Obligation Allotment with La Paz Construction as Thus, as a safeguard against unwarranted disbursements, certifications are required from:
payee (Exh. A-9). (a) the local budget officer as to the existence and validity of the appropriation; (b) the local
accountant as to the legal obligation incurred by the appropriation; (c) the local treasurer as
Supporting documents attached to Disbursement Voucher Nos. 101-9803- to the availability of funds; and (d) the local department head as to the validity, propriety and
349 legality of the claim against the appropriation.[72] Therefore, Vallejos, as municipal treasurer,
a. Purchase Request (Exh. B-6); could not authorize the release of the funds without the requisite signatures of the municipal
. Purchase Order showing La Paz Construction as the budget officer and the municipal accountant.
contractor (Exh. B-7); Vallejos also harps on the fact that the Provincial Auditor of Zambales did not issue a notice
. Request for Obligation Allotment with La Paz Construction to restitute the funds. We find this contention misleading. Pantaleon testified that the
as payee (Exh. B-9); and Provincial Auditor issued a notice stating that the disbursement of the public funds was
. Certificate of Acceptance with regard to the services irregular. Thereafter, the three (3) disbursement vouchers were suspended by the COA for
rendered by La Paz Construction (Exh. B-8). deficiency in their supporting papers. Under Section 15.2 of the Manual on Certificate of
Supporting documents attached to Disbursement Voucher Nos. 101-9804- Settlement and Balances, a suspension which is not settled within 90 days from receipt of
415 the Notice of Suspension, or within such extended period as may be authorized by the
auditor concerned, shall become a disallowance.
a. Request for Obligation Allotment with La Paz Construction as
payee (Exh. C-8); According to Pantaleon, he instructed Vallejos to rectify the deficiencies in the vouchers and
its supporting documents; however, he admitted not knowing whether Vallejos complied with
b. Three Certificates of Canvass (Exh. C-4 to C-5); this instruction. Vallejos, for his part, did not testify on whether or not he corrected and
completed the supporting documents. No proof exists in the record showing that the
c. Purchase Order showing La Paz Construction as the deficiencies were ever rectified.
contractor (Exh. C-6);
At any rate, demand under Article 217 of the Revised Penal Code merely raises a prima
d. Purchase Request (Exh. C-2); and facie presumption that missing funds have been put to personal use. The demand itself,
e. Certificate of Acceptance with regard to the services however, is not an element of the crime of malversation. Even without a demand,
rendered by La Paz Construction (Exh. C-7). malversation can still be committed when, as in the present case, sufficient facts exist
proving the crime.[73]
The appellants combined acts therefore indubitably point to their joint purpose and design.
Their concerted actions clearly showed that conspiracy existed in their illegal release of The Proper Penalty
public funds. Article 217, paragraph 4 of the Revised Penal Code imposes the penalty of reclusion
The appellants defenses temporal in its maximum period to reclusion perpetua when the amount malversed is greater
than P22,000.00.This Article also imposes the penalty of perpetual special disqualification
Vallejos contention that the Sandiganbayan has no jurisdiction over him because he only and a fine equal to the amount of the funds malversed or equal to the total value of the
occupies a Salary Grade (SG) 24 position cannot shield him from the Sandiganbayans property embezzled. Falsification by a public officer or employee under Article 171, on the
reach. The critical factor in determining the Sandiganbayans jurisdiction is the position of his other hand, is punished by prision mayor and a fine not to exceed P5,000.00.
co-accused, the municipal mayor, who occupies an SG 27 position. Under Section 4 of
Republic Act No. 8249,[69] if the position of one or more of the accused is classified as SG 27, Since appellant committed a complex crime, the penalty for the most serious crime shall be
the Sandiganbayan has original and exclusive jurisdiction over the offense. imposed in its maximum period, pursuant to Article 48 of the Revised Penal Code. This
provision states:
Our ruling in Esquivel v. Ombudsman[70] on this point is particularly instructive:
ART. 48. Penalty for complex crimes. When a single act constitutes two
In Rodrigo, Jr. vs. Sandiganbayan, Binay vs. Sandiganbayan, and Layus or more grave or less grave felonies, or when an offense is a necessary
vs. Sandiganbayan, we already held that municipal mayors fall under the means for committing the other, the penalty for the most serious crime shall
original and exclusive jurisdiction of the Sandiganbayan. Nor be imposed, the same to be applied in its maximum period.
can Barangay Captain Mark Anthony Esquivel claim that since he is not a
municipal mayor, he is outside the Sandiganbayans jurisdiction. R.A. 7975, The Sandiganbayan, therefore, correctly imposed on the appellants the penalties
as amended by R.A. No. 8249 provides that it is only in cases where none of reclusion perpetua and perpetual special disqualification for each count of
of the accused are occupying positions corresponding to salary grade `27 malversation of public funds through falsification of public documents, and the payment of
or higher that exclusive original jurisdiction shall be vested in the proper fines of P166,242.72, P154,634.27, and P90,464.21, respectively, representing the amounts
regional trial court, metropolitan trial court, municipal trial court, and malversed. The Indeterminate Sentence Law finds no application since reclusion perpetua is
municipal circuit court, as the case may be, pursuant to their respective an indivisible penalty to which the Indeterminate Sentence Law does not apply.
jurisdictions as provided in Batas Pambansa Blg. 129, as amended. Note WHEREFORE, in light of the foregoing, we AFFIRM the February 4, 2003 Decision of the
that under the 1991 Local Government Code, Mayor Esquivel has a salary Sandiganbayan in Criminal Case Nos. 25861-63, insofar as it found appellant Jaime F.
grade of 27. Since Barangay Captain Esquivel is the co-accused in Vallejos guilty beyond reasonable doubt of three (3) counts of the complex crime of
Criminal Case No. 24777 of Mayor Esquivel, whose position falls under malversation of public funds through falsification of public documents, as defined and
salary grade 27, the Sandiganbayan committed no grave abuse of penalized under Article 217 in relation with Articles 48 and 171 of the Revised Penal Code.
discretion in assuming jurisdiction over said criminal case, as well as over
Criminal Case No. 24778, involving both of them.[71] [Underscoring and We make no pronouncement with respect to appellant Teofilo Pantaleon, Jr. whose
italics in the original] withdrawal of appeal has been previously granted by this Court.
Vallejos claim that it was his ministerial function to sign the disbursement vouchers also Costs against appellant Vallejos.
lacks merit. Article 344 R.A. No. 7160 reads:
SO ORDERED.
Sec. 344. Certification and Approval of Vouchers. No money shall be
disbursed unless the local budget officer certifies to the existence of
appropriation that has been legally made for the purpose, the local
accountant has obligated said appropriation, and the local treasurer
certifies to the availability of funds for the purpose. Vouchers and
payrolls shall be certified to and approved by the head of the department or
office who has administrative control of the fund concerned, as to validity,
propriety, and legality of the claim involved. Except in cases of
disbursements involving regularly recurring administrative expenses such
as payrolls for regular or permanent employees, expenses for light, water,
telephone and telegraph services, remittances to government creditor
agencies such as GSIS, SSS, LDP, DBP, National Printing Office,
Procurement Service of the DBM and others, approval of the disbursement
voucher by the local chief executive himself shall be required whenever
local funds are disbursed.
xxxx
22
 23
GR NO. 183373, January 30, 2009 appeal on which court her appeal should be taken to. Rather, it was the trial court which
ordered the records to be forwarded to the CA. The appellate court refused to reconsider its
GILDA C. ULEP, PETITIONER, resolution.
~vs~
PEOPLE OF THE PHILIPPINES, RESPONDENT. Petitioner then filed a petition for review in this Court but it was denied for her failure to
sufficiently show that the CA committed any reversible error warranting the exercise of this
RESOLUTION Courts discretionary appellate jurisdiction.
CORONA, J.: Petitioner filed this motion for reconsideration reiterating her argument that the appellate
This resolves the motion for reconsideration of the August 27, 2008 resolution of this Court court should have ordered the transfer of the records of the case to the Sandiganbayan
denying petitioners petition for review on certiorari (under Rule 45 of the Rules of Court) instead of dismissing her appeal outright. She asks this Court to reconsider its earlier
which sought to set aside the September 25, 2007 and June 6, 2008 resolutions[1] of the resolution denying her petition for review since this case involves her constitutional right to
Court of Appeals (CA) in CA-G.R. CR No. 30227. liberty.

Petitioner was a government employee serving as money order teller at the Fort Bonifacio We grant the motion.
Post Office with a salary grade lower than grade 27. She was charged with the crime of Petitioner did not even have to specify the court to which her appeal was to be taken.
malversation of public funds under Article 217 of the Revised Penal Code in the Regional In Heirs of Pizarro v. Consolacion,[7] we held:
Trial Court (RTC) of Makati City, Branch 132. Subsequently, she was convicted as charged
and was sentenced to suffer an indeterminate penalty of 10 years and 1 day of prision It must be noted that in the notice of appeal it is not even required that
mayor as minimum to 19 years of reclusion temporal as maximum, to pay a fine of P113,768 the appellant indicate the court to which its appeal is being
and to pay Philippine Postal Corporation the same amount. interposed. This requirement is merely directory and failure to comply
with it or error in the court indicated is not fatal to the appeal. (Emphasis
Petitioner filed the following notice of appeal in the trial court: ours).[8]
ACCUSED, by counsel, respectively gives notice that she is appealing the Moreover, it appears that petitioners failure to designate the proper forum for her appeal was
Judgment rendered by this Honorable Court against her in the above- inadvertent. The omission did not appear to be a dilatory tactic on her part. Indeed, petitioner
entitled case in its Judgment dated May 3, 2006, (a copy of Decision was had more to lose had that been the case as her appeal could be dismissed outright for lack of
received by accused on May 3, 2006) on the grounds that the said jurisdiction which was exactly what happened in the CA.
Judgment is contrary to law and the evidence presented.
The trial court, on the other hand, was duty bound to forward the records of the case to the
Acting on the notice of appeal, the trial court issued the following order: proper forum, the Sandiganbayan. It is unfortunate that the RTC judge concerned ordered
Accused GILDA ULEP having filed her notice of Appeal, let the records of the pertinent records to be forwarded to the wrong court, to the great prejudice of petitioner.
the above-mentioned case, together with all the evidence, both oral Cases involving government employees with a salary grade lower than 27 are fairly common,
and documentary, be forwarded to the Honorable Court of Appeals for albeit regrettably so. The judge was expected to know and should have known the law and
further proceedings. the rules of procedure. He should have known when appeals are to be taken to the CA and
when they should be forwarded to the Sandiganbayan. He should have conscientiously and
xxx carefully observed this responsibility specially in cases such as this where a persons liberty
was at stake.
SO ORDERED. (Emphasis supplied)
WHEREFORE, the motion is hereby GRANTED. The August 27, 2008 resolution of this
The CA, however, dismissed the appeal on the ground of lack of jurisdiction. It held that Court and the September 25, 2007 and June 6, 2008 resolutions of the Court of Appeals in
malversation belongs to the classification of public office-related crimes under subparagraph CA-G.R. CR No. 30227 are SET ASIDE. The Court of Appeals is hereby directed to remand
(b) of Section 4 of PD[2]1606[3], as amended by RA[4] 8249[5]: the records of this case, together with all the oral and documentary evidence, to the Regional
Sec. 4. Jurisdiction. The Sandiganbayan shall exercise exclusive original Trial Court for transmission to the Sandiganbayan.
jurisdiction in all cases involving: The Presiding Judge of Branch 132 of the Makati City RTC is hereby warned not to commit
A. Violations of Republic Act No. 3019, as amended, otherwise this error again, under pain of a more severe penalty.
known as the Anti-Graft and Corrupt Practices Act, Republic SO ORDERED.
Act No. 1379, and Chapter II, Section 2, Title VII, Book II of
the Revised Penal Code, where one or more of the accused
are officials occupying the following positions in the
government, whether in a permanent, acting or interim
capacity, at the time of the commission of the offense:
xxx xxx xxx
B. Other offenses or felonies whether simple or complexed
with other crimes committed by the public officials and
employees mentioned in subsection a of this section in
relation to their office.
xxx xxx xxx
In cases where none of the accused are occupying positions corresponding
to Salary Grade `27 or higher, as prescribed in the said Republic Act No.
6758, or military and PNP officer mentioned above, exclusive original
jurisdiction thereof shall be vested in the proper regional trial court,
metropolitan trial court, municipal trial court, and municipal circuit trial court,
as the case may be, pursuant to their respective jurisdictions as provided in
Batas Pambansa Blg. 129, as amended.
The Sandiganbayan shall exercise exclusive appellate jurisdiction
over final judgments, resolutions or order of regional trial courts
whether in the exercise of their own original jurisdiction or of their
appellate jurisdiction as herein provided. x x x (Emphasis supplied).
The appellate court held that, based on the foregoing, an appeal from the judgment of the
RTC in such a case fell within the jurisdiction of the Sandiganbayan. Thus, petitioners appeal
to the CA was improperly made and should accordingly be dismissed pursuant to Section 2,
Rule 50[6] of the Rules of Civil Procedure.
Petitioner moved for reconsideration. She contended that the appellate court should have
ordered the transfer of the records of the case to the Sandiganbayan instead of dismissing
her appeal outright. She pointed out that there was no categorical statement in her notice of
24
 25
A.M. No. RTJ-00-1524, January 26, 2000 As regards the charge of violating Section 3 (e) of the Anti-Graft and Corrupt Practices Act,
the OCA stressed that the important element of the offense, which is damage or injury to the
LUCIA F. LAYOLA, COMPLAINANT, complainant, or manifest partiality shown to any party, is anemic of evidentiary support.
~vs~ There is no allegation of any injury suffered by the complainant as a result of the conduct or
JUDGE BASILIO R. GABO, JR., RESPONDENT. actuation of the respondent judge, nor was there any showing of undue benefit or advantage
DECISION given to the adverse party under the orders complained of.

PURISIMA, J.: With respect to the alleged rendering of an unjust interlocutory order, in connection with the
denial by respondent judge of the motion for reconsideration of the order granting the petition
At bar is an administrative case initiated by the sworn affidavit-complaint[1] of Lucia F. Layola, of the Chief of Police, Sta. Maria Station to take custody of accused SPO2 German, the OCA
dated 12 August 1997, charging Presiding Judge Basilio R. Gabo, Jr. of Branch 11 of the found such a charge to be unfounded.
Regional Trial Court in Malolos, Bulacan, with a violation of Section 3 (e), R.A. 3019, [2] for
issuing an unjust interlocutory order, and with gross ignorance of the law. Complainant sent Knowingly rendering an unjust interlocutory order must have the elements: 1) that the
said affidavit-complaint to Deputy Ombudsman for the Military, BGen. Manuel B. Casaclang offender is a judge; 2) that he performs any of the following acts: a) he knowingly renders
(Ret.), of the Office of the Ombudsman who, in turn, indorsed the same affidavit-complaint to unjust interlocutory order or decree; or b) he renders a manifestly unjust interlocutory order or
the Office of the Court Administrator (OCA) for appropriate action. decree through inexcusable negligence or ignorance.[4]

As culled by the OCA,[3] the facts that matter are as follows: The OCA perceived no evidence that the respondent judge issued the questioned order
knowing it to be unjust; and neither is there any proof of conscious and deliberate intent to do
On June 4, 1996, herein complainant Lucia F. Layola filed a complaint with the Office of an injustice.
the Deputy of the Ombudsman for the Military, charging SPO2 Leopoldo M. German and
PO2 Tomasito H. Gagui, members of the Santa Maria Police Station, Santa Maria, As to the propriety of the act of respondent judge in releasing accused SPO2 German to the
Bulacan, with homicide for the death of complainants son. custody of the immediate superior instead of ordering the arrest of said accused, the OCA
found respondent judge liable for gross ignorance of the law for failing to conduct a summary
On January 24, 1997, a resolution was handed down by the Ombudsman Investigator proceeding to determine whether or not the evidence of guilt against subject accused was
recommending the indictment for murder of SPO2 German and PO2 Gagui. The strong, considering that the charge of murder is a non-bailable offense.
corresponding information for murder was drafted and thereafter, the case was indorsed
to the Provincial Prosecutor of Bulacan for filing with the appropriate court. The case was Thus, the OCA recommended:
docketed as Criminal Case No. 209-M-97 and raffled to the sala of respondent Judge 1. That Judge Basilio R. Gabo, Jr., RTC, Branch 11, Malolos, Bulacan be FINED
Basilio R. Gabo,[sic] RTC, Branch 11, Malolos, Bulacan. P20,000 for granting bail in a capital offense without a hearing, with a stern warning that
Sometime in March, 1997, a petition to take custody of accused SPO2 Leopoldo M. a repetition of the same or similar act in the future will be dealt with more severely;
German was filed by the Chief of Police of the Sta. Maria Police Station based on the 2. That the charges of violation of Section 3 (e) of R.A. 3019 (Anti-Graft and Corrupt
following grounds: Practices Act) and issuance of an unjust interlocutory order be DISMISSED for lack of
1. that pursuant to the provisions of Presidential Decree 971, Presidential Decree 1184 merit.
and Executive Order No. 106, police personnel who are charged of any crime before any The aforestated recommendation of OCA is sustainable.
court of justice may be placed under the custody of his immediate superior officers upon
request, [who shall] be responsible for the appearance of [such] police officer x x x during It is a settled doctrine that for a judge to be held liable for knowingly rendering an unjust
trials and when needed by the court; and judgment, it must be established beyond cavil that the judgment adverted to is unjust,
contrary to law or unsupported by the evidence, and that the same was rendered with
2. that the x x x case is service connected and within the ambit of the above provisions conscious and deliberate intent to do an injustice.[5] In other words, the quantum of proof
of P.D. 971, 1184 and E. O. No. 106, because the offense imputed against [the accused] required to hold respondent judge guilty for alleged violations of Section 3 (e) of R.A. 3019
stemmed from the death of Pablo Loyola [sic], a violator of the law, who was then inside and Article 206 of the Revised Penal Code, is proof beyond reasonable doubt.
the cell of the Municipal Jail of Sta. Maria, Bulacan.Respondent Judge, relying on the
provisions of law cited in the petition for custody, resolved to grant the petition through an Proof beyond reasonable doubt requires moral certainty. If the inculpatory facts and
order dated April 7, 1997. circumstances are capable of two or more explanations or interpretations, one of which is
consistent with the innocence of the accused and the other consistent with his guilt, the
A motion for reconsideration of the above- mentioned order was filed by the Office of the evidence does not fulfill or hurdle the test of moral certainty and does not suffice to
Deputy Ombudsman for the Military, bringing to respondents attention the applicable convict.[6] Here, the allegations of the complaint-affidavit are unsubstantiated. Respondent
and relevant laws. However, the said motion for reconsideration was denied in an order judge cannot, of course, be pronounced guilty on the basis of bare allegations. There has to
dated June 25, 1997. be evidence on which conviction can be anchored. The evidence must truly be beyond
To repeat; respondent Judge Basilio R. Gabo, Jr. stands charged with a violation of Section 3 reasonable doubt.
(e), R.A. 3019, for issuing an unjust interlocutory order, and with gross ignorance of the law. On the matter of gross ignorance of the law, records on hand decisively warrant a finding
According to the complainant the respondent judge directed that accused SPO2 German be against the respondent. Section 7 of Rule 114 of the Rules of Court, provides:
held in the custody of his immediate superior, the Chief of Police of Sta. Maria, Bulacan, an
order sans any legal and factual basis, instead of ordering the arrest of the said accused No person charged with a capital offense, or an offense punishable by reclusion
being indicted for murder, a heinous and non-bailable crime. Thereafter, respondent judge perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail
denied the motion for reconsideration interposed by the Office of the Deputy Ombudsman for regardless of the stage of the criminal prosecution.
the Military.
Respondent judge was acting upon a case of murder punishable by reclusion perpetua to
Asked to comment by the Court Administrator in the latters first indorsement, .dated October death. Murder being a capital offense, respondent judge should have been mindful that bail
27, 1997, the respondent judge, tried to justify his action; pointing out that: cannot be allowed as a matter of right. In the case of Baylon vs. Sison,[7] it was succinctly
held, Quintessentially, and as a matter of law, the discretion of the court, in cases involving
1. The questioned order dated April 7, 1997 was issued in the light of the Comment of capital offenses may be exercised only after there has been a hearing called to ascertain the
the Assistant Provincial Prosecutor, to whose office the prosecution of the case was weight of the evidence against the accused. Peremptorily, the discretion lies, not in
indorsed by the Office of the Deputy Ombudsman for the Military. Said Comment by the determining whether or not there will be a hearing, but in appreciating and evaluating the
prosecutor interposes no objection to the release of the accused to the custody of the weight of the evidence of guilt against the accused. It follows that any order issued in the
petitioner Chief of Police, on the ground that from the records of the case, accuseds absence of the requisite evidence is not a product of sound judicial discretion but of whim
indictment was based on circumstantial evidence, hence, not so strong as to deprive and caprice and outright arbitrariness.[8]
the accused of his right to bail.
In the case of Cortes vs. Catral,[9] the Court held:
2. The motion for reconsideration of the above-mentioned order filed by the Deputy
Ombudsman for the Military did not raise strong arguments on why the order should be x x x. Inasmuch as the determination of whether or not the evidence of guilt against the
modified, hence, the denial of said motion. accused is strong is a matter of judicial discretion, it may rightly be exercised only after
the evidence is submitted to the court at the heating. Since the discretion is directed to
3. The disputed order is now the subject of a petition for certiorari in the Court of the weight of evidence and since evidence cannot properly be weighed if not duly
Appeals initiated by the Office of the Deputy Ombudsman for the Military. exhibited or produced before the court, it is obvious that a proper exercise of judicial
The OCA found the charges of violating Section 3 (e), R.A. 3019 and of issuing an unjust discretion requires that the evidence of guilt be submitted to the court, xxx
interlocutory order, barren of merit but respondent judge was adjudged guilty of gross The prosecution must first be accorded an opportunity to present evidence because by the
ignorance of the law. very nature of deciding applications for bail, it is on the basis of such evidence that judicial
discretion is exercised in determining whether the evidence of guilt of the accused is strong.
 26
In other words, discretion must be exercised regularly, legally and within the confines of
procedural due process, that is, after evaluation of the evidence submitted by the
prosecution. Any order issued in the absence thereof is not a product of sound judicial
discretion but of whim and caprice and outright arbitrariness.[10] Granting bail in non-bailable
offenses without hearing is gross ignorance of the law.[11]
That the prosecutor interposed no objection to the release of the accused to the custody of
the petitioner Chief of Police, on the ground that from the records of the case, accuseds
indictment was based on circumstantial evidence, did not and should not excuse
respondent judge from his judicial duty to conduct a summary proceeding to determine the
strength of evidence against the accused, as to entitle him to post bail. What is more, as the
Information itself categorically states that no bail is recommended for accused, [12] the
respondent judge should have been alerted to conduct a summary hearing.
Thus, the doctrine of res ipsa loquitor, i.e., that the Court may impose its authority upon
erring judges whose actuations, on their face, would show gross incompetence, ignorance of
the law, or misconduct, is obviously applicable in the instant case.[13]
WHEREFORE, the Court finds Judge Basilio R. Gabo GUILTY of gross ignorance of the law
and is hereby ordered to pay a FINE of P20,000.00, with the stern warning that a commission
of similar acts in the future will be dealt with more severely.
The charges of graft and corruption under Section 3 (e) of R.A. 3019 and of issuing unjust
interlocutory order are DISMISSED for lack of merit and for insufficiency of evidence.
SO ORDERED.
 27
GR NO. 130188, April 27, 2000 stabbed a relative of Edgardo. He admitted that he fled to Baguio City after the killing but
claimed that was because he got scared of going to jail without bail and because he received
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, death threats from the killer.
~vs~
MANOLITO CASTILLO Y MOGA, & LEONARDO ESPIRITU Y MOZO, A.K.A. BERNARDO The defense presented other witnesses to support accused-appellants claim that it was
ESPIRITU Y MOZO, ACCUSED, Bobby Cruz who shot Edgardo. Daryl Mae C. Joveno, an acquaintance of Emiliano Tiamzon,
testified that she had a conversation with Emiliano when she attended Edgardos wake on
MANOLITO CASTILLO Y MOGA, ACCUSED-APPELLANT. September 3, 1995 when Emiliano allegedly told her that Bobby Cruz had shot
DECISION Edgardo.[5] Another witness, Cecille Moga Castillo, a tricycle driver, testified that immediately
after the shooting, a crowd gathered near the Tiamzon residence and he heard people
MENDOZA, J.: saying that Bobby Cruz was the assailant. He said that when he attended Edgardos wake
that night, Enrico Tiamzon, elder brother of Edgardo, told him that Bobby Cruz was
This is an appeal from the decision[1] of the Regional Trial Court, Branch 156, Pateros City Edgardos assailant.[6]
finding accused-appellant guilty of murder and imposing upon him the penalty of reclusion
perpetua. To corroborate accused-appellants claims, the defense also offered the testimony of
Elizabeth Castillo, accused-appellants sister-in-law. She lived in the same compound as
The Information against accused-appellant Manolito Castillo and his co-accused Bernardo accused-appellant and their houses are only about a meter away. She stated that when
Espiritu alleged accused-appellant was awake, his radio was usually turned on, but on the morning of August
That on or about the 31st day of August 1995, in the Municipality of Pateros, Metro 31, 1995, accused-appellants house was silent and its windows and door were closed.[7] She
Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named further said that accused-appellant used to ask for hot water from her every morning. That
accused, conspiring and confederating together with one unidentified male person and morning, however, he did not do so. From these circumstances, she concluded that accused-
mutually helping and aiding one another, by means of treachery and evident appellant was then still asleep in his house.[8]
premeditation, did then and there willfully, unlawfully and feloniously attack, assault and On the basis of the evidence, the trial court found accused-appellant guilty of murder, relying
shoot with the said gun one Edgardo T. Tiamzon on the vital parts of his body, thereby principally on: (1) Emilianos testimony identifying accused-appellant as the gunman, and (2)
inflicting upon the later mortal wounds which directly caused his death. on the fact that the latter fled after the incident to avoid arrest.[9] The trial court ruled out
CONTRARY TO LAW. accused-appellants alibi that it was physically impossible for him to be at Edgardos house at
the time the shooting incident happened.[10]
When arraigned, the two pleaded not guilty, whereupon trial ensued.
Hence, this appeal. Accused-appellant argues that Emiliano Tiamzons testimony identifying
Presented by the prosecution as eyewitness was Emiliano Tiamzon, whose testimony is as him as the assailant is not entitled to credence because said witness did not see the actual
follows: shooting incident and even failed to report immediately the matter to the police. In the
alternative, he argues that, at most, he can only be held liable for homicide, there being no
Emiliano Tiamzon was 16 years old on August 31, 1995 when the fatal shooting of his cousin eyewitness who could actually prove the qualifying circumstance of treachery.[11] The Solicitor
Edgardo Tiamzon, known as ET, took place. At about 3 a.m. that day, he and Edgardo General agrees with this contention.
were having snacks in their grandmothers house at 006 Quioge St., Pateros, Metro Manila.
After finishing, Edgardo went upstairs to sleep while Emiliano went out to fetch water and, We find the appeal to be meritorious. There is reasonable doubt whether accused-appellant
afterward, went to a hamburger stand. When he returned to the house at around 5 a.m., was the killer of Edgardo Tiamzon.[12]
Emiliano rested on the sofa on the ground floor and fell asleep. He was roused by someone
looking for ET. The man poked a gun at Emilianos thigh. He could not recognize the First. In criminal prosecutions, the identity of the offender must be established. In this
[13]

intruder as the latter was wearing a helmet. Emiliano told the intruder that he was not ET. case, the prosecutions only evidence against accused-appellant is Emiliano Tiamzons
When the latter asked him where ET was, Emiliano said he did not know (Ewan ko.) The testimony. It is argued that Emiliano was able to recognize accused-appellant as the latter
man then went upstairs. Emiliano did nothing and went back to sleep. A minute later, a shot rushed down the stairs after shooting Edgardo Tiamzon and removed his helmet, thereby
rang out from upstairs. Emiliano rushed out of the house and saw two men, one of whom he revealing his face.
recognized as Tururukan, who was actually the accused Bernardo Espiritu. He did not We are not persuaded.
recognize the latters companion who was on a motorcycle parked about four to six meters
away from the house. Emiliano testified twice, first against Bobby Espiritu, who, as already noted, was eventually
acquitted by the trial court, and second, against accused-appellant. In both instances,
Emiliano said he saw the gunman rush down the stairs. It was then that he recognized the Emiliano was intensively questioned during direct and cross-examination as well as during
man because the latter removed his helmet, thus revealing his face. The man was accused- re-cross and re-direct. At this point, however, he never claimed to have recognized accused-
appellant, whom he knew was an acquaintance of Edgardo. Accused-appellant ran towards appellant when the latter removed his helmet. The entire theory of the prosecution regarding
the waiting motorcycle and escaped. Shakened, Emiliano told her aunt who had just arrived accused-appellants identification is founded upon this crucial detail. Considering its
home after buying bread for breakfast that a shot had been fired upstairs. When they entered importance to the prosecutions case, there is no reason why this was not mentioned by
the house, they were met by Emilianos grandfather who told them that Edgardo was Emiliano, if he truthfully had basis for such claim. It was only at the very end of his testimony
seriously wounded. as a rebuttal witness that he claimed he recognized accused-appellant because the latter,
Edgardo eventually died as a result of a gunshot wound in the chest. while rushing down the stairs fleeing, removed his helmet and thus revealed his face. The
pertinent portion of Emiliano Tiamzons testimony reads:
On September 14, 1995, Emiliano executed a sworn statement before the Pateros Police
implicating accused-appellant and Bernardo Espiritu in the killing of Edgardo Tiamzon. Atty. Fernandez [for the defense]:
Accused-appellant fled to Baguio City where he was eventually arrested on December 8,
1996 by agents of the National Bureau of Investigation and Baguio City Narcotics Command No further questions, your Honor.
operatives.
Atty. Daliva [for the private prosecution]:
Teresita Tiamzon, Edgardos aunt, also testified for the prosecution. She stated that on
September 1, 1995, between 7 and 8 a.m., accused-appellant came to Edgardos wake.
No redirect, your Honor.
Accused-appellant was restless and appeared to be drunk. He asked Teresita if charges
have already been filed against a certain Bobby Cruz, a known trouble-maker and drug
addict, for the killing of Edgardo. After viewing the body of Edgardo, accused-appellant COURT:
surprised Teresita by seating beside her and blurting out Hindi ko naman tutuluyan si Egay,
pero nadamay lamang siya.[2] Teresitas testimony was corroborated by Cecilia Tiamzon, I remember you testified sometime ago that you saw the killer going down the stairs
another close relative of Edgardo, who heard the latters statement.[3] and passing by through the alley running out?

After the prosecution had presented its evidence, the other accused, Bernardo Espiritu, filed A: Yes, your Honor.
a demurrer which was granted by the trial court by acquitting said accused on July 24,
1996.[4] COURT:
Accused-appellant testified in his defense. He claims that on August 31, 1995, at around 5:30
After one shot?
in the morning, he was at home sleeping until 9:30 that morning. This tale was corroborated
by accused-appellants 11 year-old daughter, Analyn Castillo. Accused-appellant admitted
that he knew Edgardo and they did not have any feud; in fact that was why he attended the A: Yes, your Honor, after one shot, he went down the stairs and he boarded the
latters wake. He said that it was really Bobby Cruz who shot and killed Edgardo and that he motorcycle and going out of E. Quioge.
was being implicated in the killing only because of a past incident wherein his brother had
 28
COURT: A Yes, sir.

Anong suot nung nakita mo? ....

A: He was wearing a Jacket with a red mark at the back, and green colored walking Q This incident that you allegedly saw you did not tell or say your father about this at
shorts, with a helmet and when he went down the stairs, when he was going down any time between August 31 to Sept. 14, 1995? Am I correct?
the stairs, he removed his helmet, thats why I recognized him.
A I told him, sir.
COURT:
Q When did you tell your father?
What point in time did the killer removed his helmet?
A On August 31, 1995 also.
A: After the shot, your Honor, when he was going down the stairs, there was another
door there, when he was about to go out of the door, he removed his helmet and he Q Aside from telling your father what you saw who else did you tell about this incident
passed in the alley because there were two doors, sir. . . .[14] that you saw and the personality that you saw in the incident?

Indeed, the claim that accused-appellant removed his helmet, thereby enabling the witness A My Tito and Tita, sir.
to recognize him, appears to be a mere afterthought and casts doubt on the veracity of his
testimony. Q When did you tell your Tito and Tita?
Second. We likewise find merit in accused-appellants contention that Emilianos failure to
immediately report him to the police as the one who shot Edgardo Tiamzon puts in question A Also on that date Aug. 31, 1995.
said witness credibility.
Q In other words there was nothing blocking your mind. You can tell and narrate
As a general rule, the failure of a witness to immediately report to the police authorities the everything that you saw?
crime he had witnessed cannot be taken against him.[15] It is not unusual for a witness to
show some reluctance about getting involved in a criminal case and such natural reticence of
most people is of judicial notice.[16] In some cases, the witness may have been threatened.[17] A Yes, sir.

In the present case, however, neither of these reasons was given why, despite the fact that Q In other words there was no confusion in your mind that you could narrate this
the killing happened on August 31, 1995, Emiliano Tiamzon gave his sworn statement incident?
identifying accused-appellant as the assailant only on September 14, 1995. His explanation,
given during his cross-examination, is as follows: A Yes, sir.

Q When this happened in the morning of August 31, 1995 and you said you saw Q In other words what you are saying now what you told this Court earlier that you are
Manolito Castillo and another unidentified person and accused Leonardo Espiritu confused is not correct?
also in that vicinity where this crime was committed, did you not feel then your
obligation to report this matter to the police? A Because I was afraid.[18]

A No, sir. I waited until my brother was buried. Clearly, the explanation is not convincing. Emiliano never claimed he was threatened,
intimidated, or coerced not to reveal the identity of the killer. Considering that the deceased
Q Actually you are referring to your cousin? was his cousin and that they lived together in their grandmothers house, there was no
reason why he hesitated to identify the killers. Emiliano claimed that he told his father, aunt
A Yes, sir. and uncle who the killer was, but not one of the latter reported this matter to the police until
September 14, 1995 when they accompanied Emiliano to the police where the latter
Q When was he buried? executed the sworn statement in question. The tragic killing of a relative should have
naturally impelled the family of the deceased to immediately seek justice lest the assailant
A Sept. 5, 1995, sir. escaped. If Emiliano had indeed told his family who the assailant was, it has not been
explained why the family did not immediately act on the information. As a matter of fact,
Q This statement now marked in evidence as Exh. A was given on Sept. 14, 1995? accused-appellant even attended Edgardos wake but the victims family did not do anything
Is this correct? to have him arrested. These circumstances cast serious doubt on the prosecutions claim
that the identity of Edgardo Tiamzons assailant was immediately known or ascertained.
A Yes, sir. Third. As a general rule, great respect is accorded to the evaluation of the credibility of
witnesses by the trial court.[19] However, if it clearly appears that the trial courts findings are
Q Why did you wait until Sept. 14 when your cousin was interred Sept. 5, 1995? arbitrary or that the trial judge overlooked certain facts of substance which, if considered,
might affect the outcome of the case,[20] this Court will not hesitate to set aside such factual
A Because my mind was blocked, sir. findings. E-xsm

Q What do you mean your mind was blocked. You mean your mind were still In this case, the trial court described Emiliano Tiamzon as a boy who displayed no non-
confused at that time? sense with his words and neither a trace of confusion.[21] To the contrary, as the foregoing
portion of his testimony shows, Emiliano Tiamzon himself admitted to the court that he was
A Yes, sir. so confused he did not immediately make a report to the authorities of what he had allegedly
witnessed.
Q Meaning to say you cannot still figured out what happened? Moreover, his testimony is full of contradictions and improbabilities which put in doubt his
credibility. The first time he testified, he stated that accused-appellant woke him up by calling
A Yes, sir. him ET, because he mistook him for Edgardo Tiamzon. He said that when Emiliano told the
man that he was not ET, the latter went upstairs while he, apparently not alarmed, went
Q You are not suffering from any mental disorder as would cause forgetfulness? back to sleep. Then, he said, after a minute, he heard a shot and he went outside as he
thought that a tire blew up.[22] However, the next time he took the stand, Emiliano told a
A None, sir. significantly different story. His testimony is quoted below as follows:

Q In other words you have to wait until Sept. 14 because at that time you still did not Q After being awakened by Mr. Manolito Castillo, what happened next?
know what to do. Am I correct?
A He was waking me up by saying ET, ET, sir.
A Yes, sir.
Q After that, what did he do?
Q In fact probably you still did not know what to tell the police at that time?
A He asked where ET was, sir.
 29
Q What did he use in waking you up? The Director of Prisons is hereby directed to forthwith cause the release of accused-appellant
unless the latter is being lawfully held for another cause and to inform the Court accordingly
A A gun, sir. within ten (10) days from notice.
SO ORDERED.
Q How did he use the gun in waking you up?

A He was doing like this, sir.

Interpreter:

Witness demonstrating by his left hand pointing to his left upper thigh.

Q What part of the gun did he use in waking you up?

A The end, sir. dulo.[23]

Emiliano, therefore, subsequently stated that the intruder was armed with a gun. Like his
statement that the intruder was wearing a helmet, this claim, if true, should have been stated
at the outset. Whether or not the intruder was armed is very material because not only does
such detail help in establishing the offense, it also provides a basis for evaluating Emilianos
testimony. Considering these latter claims of Emiliano Tiamzon, it would appear that the
unidentified person who barged into the house early in the morning was wearing a helmet,
which concealed his identity, and armed; yet, it did not occur to Emiliano that the intruder
could have evil intentions. Instead, Emiliano said that, after denying that he was ET he
simply went back to sleep. Emiliano was 16 years old at the time the crime was committed.
Even a child of much younger years could not have failed to sense the danger in the offing.
The whole story is simply unbelievable, and the trial court certainly erred in taking it hook,
line, and sinker.
Fourth. The following circumstances are said to point to accused-appellants guilt. First, the
remark made by accused-appellant when he attended Edgardo Tiamzons wake, and
second, the fact that he fled and hid in Baguio City. As to the first, when he attended Edgardo
Tiamzons wake, accused-appellant was allegedly heard by prosecution witnesses to have
said: Hindi ko naman tutuluyan si Egay, pero nadamay lang. The statement in question,
assuming it refers to the shooting incident, implies lack of intent to commit the offense as
shown by the use of hindi tutuluyan and nadamay. On the other hand, the killing appears
to have been carried out deliberately because the gunman was precisely looking for Edgardo
Tiamzon. Furthermore, accused-appellant went to the wake of Edgardo. It would be quite
unusual for him to do this if he were really was gunman, as claimed by the prosecution. He
also testified that what he actually said was something like Pati si ET nadamay. Hindi ko pa
naman sana itutuloy. He explained that prior to the incident, the victim and Bobby Cruz,
whom accused-appellant claims to be the killer, had stolen his motorcycle. He said he had
intended not to file charges against Edgardo Tiamzon in order to make him his witness
against Bobby Cruz.
The other circumstantial evidence against accused-appellant is the fact that he fled after the
shooting and went in hiding in Baguio City. Chief
Flight, in most cases, strongly indicates guilt.[24] As a lone circumstantial evidence, however,
it does not suffice as plurality of circumstantial evidence is required before guilt beyond
reasonable doubt may be inferred from such indirect proof. To fully dispose of this issue, the
motive of accused-appellant is a key element in the web of circumstantial evidence.[25] In this
case, no motive on the part of accused-appellant was shown for him to want to kill Edgardo
Tiamzon. Accused-appellant may have testified as to the theft of his motorcycle by the
deceased and Bobby Cruz, but this angle, has neither been alleged nor proved by the
prosecution.
Moreover, said incident has already been reported to the police for investigation.[26] It would
thus be purely speculative to deduce that it provided accused-appellant with a motive for the
killing. On the other hand, it appears that Bobby Cruz, claimed by the defense witnesses to
be Edgardo Tiamzons actual assailant, is a fugitive wanted for several serious crimes such
as frustrated murder, qualified trespass to dwelling and violation of the Republic Act No. 6425
(Dangerous Drugs Act of 1972), as attested to by a certification from the Pateros
Police.[27] Given accused-appellants unrebutted testimony about the deceaseds involvement
in the unlawful activities of Bobby Cruz and the testimonies implicating the latter to the killing,
it would have been the prudent course for the prosecution to have included Cruz as a
suspect. Unfortunately, no such effort appears to have been made by the prosecution. An
investigation on the involvement of Bobby Cruz clearly could have shed light as to accused-
appellants statements.
Fifth. Accused-appellants defense is alibi. While this is an inherently weak defense, it is still
imperative that the peoples case must stand on the strength of its own evidence and not on
the weakness of the defense.[28] Here, we have enumerated serious flaws in the
prosecutions case against accused-appellant. Their combined effect is unmistakably to
create reasonable doubt on the guilt of the latter.
WHEREFORE, the decision of the Regional Trial Court, Branch 156, Pateros City is hereby
REVERSED and accused-appellant is ACQUITTED on the ground of reasonable doubt.
30
 31
GR NO. 125567, June 27, 2000 of the President, Civil Aeronautics Board, etc.
ANTONIO (ANTONINO) SAMANIEGO, JOSE DE LA CRUZ, JOHN SAMANIEGO,
ERNESTO SANTOS, MACARIO DE LA CRUZ, ANDRES PASTORIN, BENETRITO DE LA . . . .
CRUZ, JESUS BATAC & RODOLFO LAGUISMA, PETITIONERS,
~vs~ 6. Contents of petition. .- The petition for review shall (a) state the full names
VIC ALVAREZ AGUILA, JOSEPHINE TAGUINOD & SECRETARY OF THE DEPARTMENT of the parties to the case, without impleading the court or agencies either as
OF AGRARIAN REFORM, RESPONDENTS. petitioners or respondents. (Emphasis added).

DECISION Thus, it is clear that petitioners failure to implead the Office of the President does not warrant
the dismissal of the case as it is in accordance with this circular. It is not true that the Office
MENDOZA, J.: of the President is not included within the scope of this circular. It is, as can plainly be seen
This is a petition for review on certiorari of the decision[1] of the Court of Appeals, dated above.
January 25, 1996, denying petitioners appeal from a decision of the Office of the President. Second. The Court of Appeals held that in appeals from decisions of the Office of the
The sole issue in this case is whether the Office of the President is an indispensable party in President, the latter is an indispensable party. This is error. Under Rule 7, 3 of the Rules of
an appeal from its decision and, therefore, must be impleaded pursuant to the Rules of Civil Civil Procedure, an indispensable party is a party in interest without whom no final
Procedure. For reasons to be discussed, we hold that it is not; accordingly, we remand the determination can be had of an action without that party being impleaded. Indispensable
case to the Court of Appeals for review on the merits. parties are those with such an interest in the controversy that a final decree would
necessarily affect their rights, so that the court cannot proceed without their
Petitioners are tenants in a landholding with an aggregate area of 10.4496 hectares, more or presence.[2] Interest, within the meaning of this rule, should be material, directly in issue and
less, in Patul (now Malvar), Santiago, Isabela. The land belongs to Salud Aguila, whose to be affected by the decree, as distinguished from a mere incidental interest in the question
children, Vic Alvarez Aguila and Josephine Taguinod, are private respondents. involved.[3] On the other hand, a nominal or pro forma party is one who is joined as a plaintiff
or defendant, not because such party has any real interest in the subject matter or because
It appears that the land in question was identified by the Department of Agrarian Reform any relief is demanded, but merely because the technical rules of pleadings require the
(DAR)-Region 2 as covered by the Operation Land Transfer Program of the government. In presence of such party on the record.[4]
1976, Aguila, in behalf of her children, herein private respondents, filed a petition for
exemption from the coverage of P.D. No. 27. Petitioners opposed the application on the In the case at bar, even assuming that the Office of the President should have been
ground that Aguilas transfer of the title to the lands to her children was in violation of the impleaded by petitioner, it is clear that the Office of the President is merely a pro forma party,
rules and regulations of the DAR. in the same way that a respondent court is a pro forma party in special civil actions
for certiorari.
In its August 21, 1991 decision, the Regional Director granted the application for exemption.
On appeal to the DAR, the decision was affirmed in a decision dated September 28, The issue in the petition before the Court of Appeals is whether a private land should be
1992. However, on motion of petitioners, the DAR reversed its ruling and denied private exempted from the coverage of P.D. No 27. Whatever happens to that case and whoever
respondents application for exemption and declared petitioners the rightful farmer- wins would not bring any prejudice or gain to the government. The only participation of the
beneficiaries of the land. Office of the President in this case is its role as the office which entertains appeals from
decisions of the DAR. Indeed, the very reason that the appellate court excused the Office of
Private respondents appealed to the Office of the President which, in a decision, dated the Solicitor General from filing a comment is that it deemed that the case involved purely
January 1, 1995, stated: private interests.
WHEREFORE, premises considered, the Order, dated January 6, 1993, of the WHEREFORE, the decision of the Court of Appeals, dated January 25, 1996, and its
Department of Agrarian Reform is hereby SET ASIDE. The earlier order of that resolution, dated July 5, 1996, are hereby REVERSED and the Court of Appeals is
Department, dated September 28, 1992, is hereby CONFIRMED and REINSTATED with ORDERED to decide the case on the merits with deliberate speed.
a modification that subject landholdings are not covered by the OLT program of the
government pursuant to P.D. No. 27. SO ORDERED.
Petitioners appealed to the Court of Appeals, but their petition was dismissed. The appellate
court held:
It is very clear from the allegations in the Petition For Review that the questioned
decision and resolution were both issued by the Office of the President. As such, the
Office of the President is an indispensable party to the case. Failure to implead said
Office is fatal to the petitioners cause and, hence, should be dismissed. (Cf: Sec.2, Rule
3, Revised Rules of Court.)
Time and again, it has been held that the joinder of indispensable parties is mandatory.
Unless they are impleaded, the action cannot proceed and the omission is fatal to the
plaintiffs cause. (United Paracale Mining Co. vs. Court of Appeals, et. al., 232 SCRA
663, 666.)
Petitioners moved for a reconsideration, contending that under Administrative Circular No. 1-
95, the Office of the President need not be impleaded. However, their motion was denied.
Hence, this petition.
First. At the time petitioners brought their case to the Court of Appeals, the procedure
governing appeals to said court from quasi-judicial agencies was embodied in Revised
Administrative Circular No. 1-95, which provides in relevant parts:

TO: COURT OF APPEALS, COURT OF TAX APPEALS, THE SOLICITOR

GENERAL, THE GOVERNMENT CORPORATE COUNSEL, ALL MEMBERS
OF THE GOVERNMENT PROSECUTION SERVICE, & ALL MEMBERS OF
THE INTEGRATED BAR OF THE PHILIPPINES.

SUBJECT: RULES GOVERNING APPEALS TO THE COURT OF APPEALS FROM

JUDGMENTS OR FINAL ORDERS OF THE COURT OF TAX APPEALS &
QUASI-JUDICIAL AGENCIES.

1. Scope.- These rules shall apply to appeals from judgments or final orders
of the Court of Tax Appeals and from awards, judgments, final orders or
resolutions of or authorized by any quasi-judicial agency in the exercise of its
quasi-judicial functions. Among these agencies are the Civil Service
Commission, Central Board of Assessment Appeals, Securities and Exchange
Commission, Land Registration Authority, Social Security Commission, Office
32

GR NO. 150129, April 06, 2005
NORMA A. ABDULLA, PETITIONER,
~vs~
PEOPLE OF THE PHILIPPINES, RESPONDENT.
DECISION
GARCIA, J.:
Convicted by the Sandiganbayan[1] in its Crim. Case No. 23261 of the crime of illegal use of
public funds defined and penalized under Article 220 of the Revised Penal Code, or more
commonly known as technical malversation, appellant Norma A. Abdulla is now before this
Court on petition for review under Rule 45.
Along with Nenita Aguil and Mahmud Darkis, appellant was charged under an Information
which pertinently reads:
That on or about November, 1989 or sometime prior or subsequent thereto, in Jolo, Sulu,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused: NORMA A. ABDULLA and NENITA P. AGUIL, both public officers, being then
the President and cashier, respectively, of the Sulu State College, and as such by reason
of their positions and duties are accountable for public funds under their administration,
while in the performance of their functions, conspiring and confederating with MAHMUD
I. DARKIS, also a public officer, being then the Administrative Officer V of the said
school, did then and there willfully, unlawfully and feloniously, without lawful authority,
apply for the payment of wages of casuals, the amount of FORTY THOUSAND PESOS
(P40,000.00), Philippine Currency, which amount was appropriated for the payment of
the salary differentials of secondary school teachers of the said school, to the damage
and prejudice of public service.
CONTRARY TO LAW.
Appellants co-accused, Nenita Aguil and Mahmud Darkis, were both acquitted. Only
appellant was found guilty and sentenced by the Sandiganbayan in its decision [2] dated The undisputed facts, as found by the Sandiganbayan itself:
August 25, 2000 (promulgated on September 27,2000), as follows:
WHEREFORE, premises considered, accused Mahmud Darkis and Nenita P. Aguil are
hereby acquitted of the crime charged. The cash bond posted by each of the said
accused for their provisional liberty are hereby ordered returned to each of them subject Management (DBM); that consequent to the approval of the said request, was the
to the usual auditing and accounting procedures.
Accused Norma Abdulla is hereby convicted of the crime charged and is hereby meted a
fine of three thousand pesos, pursuant to the second paragraph of Article 220 of the
Revised Penal Code. She is further imposed the penalty of temporary special
disqualification for a period of six (6) years. She shall also pay the costs of the suit.
SO ORDERED.
Upon motion for reconsideration, the Sandiganbayan amended appellants sentence by
deleting the temporary special disqualification imposed upon her, thus:
Premises considered, the decision of this Court dated August 25, 2000, is hereby
amended to the effect that the penalty of temporary special disqualification for six (6)
years is hereby cancelled and set aside. Hence, the last paragraph of said decision shall
read as follows:
Accused Abdulla is hereby convicted of the crime charged and is hereby meted a fine of
three thousand pesos, pursuant to the second paragraph of Article 220 of the Revised
Penal Code. She shall also pay the costs of the suit.
SO ORDERED.[3]
Still dissatisfied, appellant, now before this Court, persistently pleas innocence of the crime still holding Secondary Teacher II positions and therefore receiving a salary lower than
charged.
The record shows that the prosecution dispensed with the presentation of testimonial
evidence and instead opted to mark in evidence the following exhibits:
EXHIBITS DESCRIPTION
A Audit Report which is denominated as Memorandum
of Commission on Audit, Region IX, Zamboanga City,
from the Office of the Special Audit Team, COA, dated
May 8, 1992, consisting of nine (9) pages;
B Certified Xerox copy of a letter from the Department of
Budget and Management through Secretary Guillermo
N. Carague to the President of the Sulu State College
dated October 30, 1989;
C Certified copy of the DBM Advice of Allotment for the
33
Year 1989;
C-1 The entry appearing in Exhibit C which reads:
Purpose release partial funding for the conversion
of 34 Secondary School Teacher positions to
Instructor I items; Fund Source lump-sum
appropriation authorized on page 370 of RA 6688 and
the current savings under personal services;
D Manifestation filed by accused Norma Abdulla herself
dated November 24, 1997 consisting of two (2) pages
appearing on pages 225 to 226 of the record;
E Motion filed by the accused through Atty. Sandra
Gopez dated February 9, 1998 found on pages 382-a
and 382-b of the records of this case; and
F Prosecutions Opposition to the motion marked as
Exhibit E dated February 11, 1998, consisting of
three (3) pages, appearing in pages 383 to 385 of the
record.[4]
Thereafter, the prosecution immediately made its Formal Offer of Evidence, and, with the
admission thereof by the court, rested its case.
The defense proceeded to adduce its evidence by presenting four (4) witnesses, namely,
accused Mahmud Darkis, who was the Administrative Officer of Sulu State College, Jolo,
Sulu; accused Nenita Aguil, the Cashier of the same College; appellant Norma Abdulla
herself, who was the College President; and Gerardo Concepcion, Jr., Director IV and Head
of the Department of Budget and Management, Regional Office No. 9, Zamboanga City.
The evidence on record xxx show that the request for the conversion of thirty-four (34)
secondary school teachers to Instructor I items of the Sulu State College, through its
former president, accused Abdulla, was approved by the Department of Budget and
allotment by the DBM of the partial funding for the purpose of paying the salary
differentials of the said thirty-four (34) secondary school teachers in the amount of forty
thousand pesos (P40,000.00) sourced from the lump sum appropriation authorized on
page 370 of R.A. 6688 [should be page 396 of RA 6688 (General Appropriations Act
January 1 December 31, 1989)] and the current savings under personal services of
said school (Exhibits `B, `C and `C-1; Exhibit `18, pp. 32-35; tsn, hearing of September
22, 1998, pp. 6 to 25 and 26); that out of the thirty-four (34) secondary school teachers,
only the six (6) teachers were entitled and paid salary differentials amounting to
P8,370.00, as the twenty-eight (28) teachers, who were occupying Teacher III positions,
were no longer entitled to salary differentials as they were already receiving the same
salary rate as Instructor I (Exhibit `A, p. 4, par. 1; Exhibits `1 to `6, inclusive; Exhibit `14-
A; tsn, hearing of September 22, 1998, pp. 6 to 8; tsn, hearing of September 23, 1998,
pp. 10-11); and that the amount of P31,516.16, taken from the remaining balance of the
P40,000.00 allotment, was used to pay the terminal leave benefits of the six (6) casuals
(Exhibits `D and `E; Exhibits `7 to `12, inclusive; tsn, hearing of September 22, 1998,
pp. 13 and 34; tsn, hearing of September 23, 1998, p. 13).
Accused Abdulla was able to sufficiently justify the payment of the salary differentials of
only six (6), out of the thirty-four (34) teachers, when she testified that out of the thirty-
four (34) teachers, twenty-eight (28) were already holding the position of Secondary
School Teacher III receiving the salary of Instructor I; and that the remaining six (6) were
that of Instructor I so they were paid salary differentials (tsn, hearing of September 23,
1998, pp. 8, 10 and 11). In fact, the notarized audit investigation report (Exhibit `A, p. 4,
1st par.) and the Joint Resolution of the Office of the Ombudsman, Mindanao (Exhibit
`14-a), also point that said act of the accused is justified.
In this recourse, appellant questions the judgment of conviction rendered against her,
claiming that the Sandiganbayan erred:
I
XXX ON A QUESTION OF LAW IN INVOKING THE PRESUMPTION OF UNLAWFUL
INTENT DESPITE EVIDENCE TO THE CONTRARY.
II
XXX ON A QUESTION OF LAW IN HOLDING THAT THE PROSECUTION WAS ABLE
TO PROVE THAT PETITIONER COMMITTED TECHNICAL MALVERSATION UNDER
ARTICLE 220 OF THE REVISED PENAL CODE.
The Court grants the appeal.

So precious to her is the constitutional right of presumption of innocence unless proven
otherwise that appellant came all the way to this Court despite the fact that the sentence
imposed upon her by the Sandiganbayan was merely a fine of three thousand pesos, with no
imprisonment at all. And recognizing the primacy of the right, this Court, where doubt exists,
has invariably resolved it in favor of an accused.
34
Hence, the presumption that the unlawful act of the accused was done with criminal
intent had been satisfactorily proven by the prosecution (Sec. 5[b], Rule 131).
The Court must have to part ways with the Sandiganbayan in its reliance on Section 5 (b) of
Rule 131 as basis for its imputation of criminal intent upon appellant.

In a judgment of acquittal in favor of two (2) accused charged of murder in People vs. For sure, the procedural rule relied upon does not apply at all to this case. Indeed, clear it is
Abujan,[5] the Court wrote: from its very language that the disputable presumption of the existence of unlawful or
criminal intent presupposes the commission of an unlawful act. Thus, intent to kill is
We are enraged by the shocking death suffered by the victim and we commiserate with presumed when the victim dies because the act of killing clearly constitutes an unlawful act.
her family. But with seeds of doubt planted in our minds by unexplained circumstances in In People vs. Gemoya,[9] the Court held:
this case, we are unable to accept the lower courts conclusion to convict appellants. We
cannot in conscience accept the prosecutions evidence here as sufficient proof required The intent to kill is likewise presumed from the fact of death, unless the accused proves
to convict appellants of murder. Hence, here we must reckon with a dictum of the law, in by convincing evidence that any of the justifying circumstances in Article 11 or any of the
dubilis reus est absolvendus. All doubts must be resolved in favor of the accused. exempting circumstances in Article 12, both of the Revised Penal Code, is present.
Nowhere is this rule more compelling than in a case involving the death penalty for a In fact, in a Resolution penned by Justice Romeo Callejo, Sr. in People vs. Delim, [10] the
truly humanitarian Court would rather set ten guilty men free than send one innocent Court en banc categorically stated:
man to the death row. Perforce, we must declare both appellants not guilty and set them
free. If the victim dies because of a deliberate act of the malefactor, intent to kill is conclusively
presumed. (Emphasis supplied).
Similarly, the Court had to acquit an accused charged of rape in People vs. De Jesus on [6]

ground of reasonable doubt, to wit: Similarly, intent to gain or animus lucrandi is presumed when one is found in possession of
stolen goods precisely because the taking of anothers property is an unlawful act. So it is
With seeds of doubt planted in our minds by the conduct of proceedings on record, we that in People vs. Reyes,[11]the Court held:
are unable to accept the lower courts conclusion to convict appellant. His conviction is
founded on the sole testimony of Agnes, but though a credible witness despite her Accused-appellants contention that the animus lucrandi was not sufficiently established
mental retardation, she showed unnecessary dependence on her mother when by the prosecution is devoid of merit. Animus lucrandi or intent to gain is an internal act
identifying the father of her child. Maternal coaching taints her testimony. That her which can be established through the overt acts of the offender. Although proof of motive
mother had to be ordered by the judge to go outside the courtroom impresses us as for the crime is essential when the evidence of the robbery is circumstantial, intent to
significant. We are unable to accept as sufficient the quantum of proof required to convict gain or animus lucrandi may be presumed from the furtive taking of useful property
appellant of rape based on the alleged victims sole testimony. Hence, here we must fall pertaining to another, unless special circumstances reveal a different intent on the part of
back on a truism of the law, in dubilis reus est absolvendus. All doubts must be resolved the perpetrator. The intent to gain may be presumed from the proven unlawful taking. In
in favor of the accused. the case at bar, the act of taking the victims wristwatch by one of the accused Cergontes
while accused-appellant Reyes poked a knife behind him sufficiently gave rise to the
WHEREFORE, the assailed decision dated May 26, 2000, of the Regional Trial Court of presumption.
Camiling, Tarlac, Branch 68, is REVERSED and SET ASIDE. Appellant RUBEN
LUMIBAO is ACQUITTED of the charge of rape on reasonable doubt. The presumption of criminal intent will not, however, automatically apply to all charges of
technical malversation because disbursement of public funds for public use is per se not an
The Courts faithful adherence to the constitutional directive imposes upon it the imperative of unlawful act. Here, appellant cannot be said to have committed an unlawful act when she
closely scrutinizing the prosecutions evidence to assure itself that no innocent person is paid the obligation of the Sulu State College to its employees in the form of terminal leave
condemned and that conviction flows only from a moral certainty that guilt has been benefits such employees were entitled to under existing civil service laws. Thus, in a similar
established by proof beyond reasonable doubt. In the words of People vs. Pascua[7]: case,[12] the Court reversed a conviction for technical malversation of one who paid out the
Our findings in the case at bar should not create the mistaken impression that the wages of laborers:
testimonies of the prosecution witnesses should always be looked at with askance. What There is no dispute that the money was spent for a public purpose payment of the
we are driving at is that every accused is presumed innocent at the onset of an wages of laborers working on various projects in the municipality. It is pertinent to note
indictment. But, it has often happened that at the commencement of a trial, peoples the high priority which laborers wages enjoy as claims against the employers funds and
minds, sometimes judges too, would have already passed sentence against the accused. resources.
An allegation, or even any testimony, that an act was done should never be hastily
accepted as proof that it was really done. Proof must be closely examined under the lens In the absence of any presumption of unlawful intent, the burden of proving by competent
of a judicial microscope and only proof beyond reasonable doubt must be allowed to evidence that appellants act of paying the terminal leave benefits of employees of the Sulu
convict. Here, that quantum of proof has not been satisfied. State College was done with criminal intent rests upon the prosecution.
We shall now assay appellants guilt or innocence in the light of the foregoing crucibles. The Court notes the odd procedure which the prosecution took in discharging its undertaking
to prove the guilt of appellant beyond reasonable doubt. As it is, the prosecution did not
In her first assigned error, appellant contends that the prosecution failed to adduce evidence present any single witness at all, not even for the purpose of identifying and proving the
to prove criminal intent on her part. When she raised this issue in her Motion for authenticity of the documentary evidence on which it rested its case. The prosecution
Reconsideration before the Sandiganbayan, that court, invoking Section 5 (b), Rul definitely failed to prove unlawful intent on the part of appellant.
e 131 of the Rules of Court, ruled in a Resolution[8] promulgated on September 17, 2001, as
follows: Settled is the rule that conviction should rest on the strength of evidence of the
prosecution and not on the weakness of the defense. The weakness of the defense does
Anent the allegation of the movant/accused that good faith is a valid defense in a not relieve it of this responsibility. And when the prosecution fails to discharge its burden
prosecution for malversation as it would negate criminal intent on the part of the accused of establishing the guilt of an accused, an accused need not even offer evidence in his
which the prosecution failed to prove, attention is invited to pertinent law and rulings of behalf. A judgment of conviction must rest on nothing less than moral certainty. It is thus
the Supreme Court on the matter. required that every circumstance favoring his innocence must be duly taken into account.
Sec. 5(b) of the Rule 131, Rules of Court, provides, `That an unlawful act was done with The proof against him must survive the test of reason and the strongest suspicion must
an unlawful intent. Hence, dolo may be inferred from the unlawful act. In several cases not be permitted to sway judgment. There must be moral certainty in an unprejudiced
(Tria, 17 Phil. 303; Ballesteros, 25 Phil. 634; Sia Tioan, 54 Phil. 52; Cueto, 38 Phil. 935; mind that it was accused-appellant who committed the crime. Absent this required
Cubelo, 106 Phil. 496), the Supreme Court ruled that `When it has been proven that the quantum of evidence would mean exoneration for accused-appellant.[13]
appellants committed the unlawful acts alleged, it is properly presumed that they were The Sandiganbayans improper reliance on Sec. 5(b) of Rule 131 does not save the day for
committed with full knowledge and with criminal intent, `and it is incumbent upon them to the prosecutions deficiency in proving the existence of criminal intent nor could it ever tilt the
rebut such presumption. Further, the same court also ruled that when the law plainly scale from the constitutional presumption of innocence to that of guilt. In the absence of
forbids an act to be done, and it is done by a person, the law implies the guilty intent, criminal intent, this Court has no basis to affirm appellants conviction.
although the offender was honestly mistaken as to the meaning of the law which he had
violated (State vs. McBrayer, 98 NIC 619; Sing Cong Bieng and Co Kong, 30 Phil. 577, x x x. This calls to mind the oft-repeated maxim `Actus non facit reum, nisi mens sit rea,
580; Hermenigildo Bautista, CA 40 O.G. 5th Supp. 139). If the act is criminal, then which expounds a basic principle in criminal law that a crime is not committed if the mind
criminal intent is presumed (Francisco y Martin, CA 53 O.G. 1450). of the person performing the act complained of be innocent. Thus, to constitute a crime,
the act must, except in certain crimes made such by statute, be accompanied by a
In the case at bar, inasmuch as the prosecution had proved that a criminal act was criminal intent. It is true that a presumption of criminal intent may arise from proof of the
committed by the accused under Article 220 of the Revised Penal Code, criminal intent commission of a criminal act; and the general rule is that if it is proved that the accused
was presumed. The accused did not present any evidence to prove that no such criminal committed the criminal act charged, it will be presumed that the act was done with
intent was present when she committed the unlawful act of technical malversation. criminal intention and that it is for the accused to rebut this presumption. But it must be
 35
borne . Education 0
in mind that the act from which such presumption springs must be a criminal act In the Services
case at bar, the act is not criminal. Neither can it be categorized as malum prohibitum,
the mere commission of which makes the doer criminally liable even if he acted without
evil intent.[14]
The second assigned error refers to the failure of the prosecution to prove the existence of all 5 Secondary
the essential elements of the crime of technical malversation defined in Article 220 of the . Education 2,636,00
Revised Penal Code, which are: Services 0 736,000 3,372,000

1. That the offender is a public officer;

2. That there is public fund or property under his administration;
Total, Functions 6,873,00 2,509,00
3. That such public fund or property has been appropriated by law or ordinance; 0 0 9,382,000

4. That he applies the same to a public use other than that for which such fund or
property has been appropriated by law or ordinance.[15]
Appellant contends that the prosecution was unable to prove the second and third elements B. Locally-Funded
of the crime charged. [16] She argued that the public funds in question, having been Project
established to form part of savings, had therefore ceased to be appropriated by law or
ordinance for any specific purpose.
The Court finds merit in appellants submission. 1 Acquisition
. and Improvem
As found by the Sandiganbayan no less, the amount of forty thousand pesos (P40,000.00)
ents
originally intended to cover the salary differentials of thirty four (34) secondary school
of Lands,
teachers whose employment status were converted to Instructor I, were sourced from the
Construction,
lump sum appropriation authorized on page 370 (should be page 396) of R.A. 6688 and the
Rehabilitation
current savings under personal services of said school.[17]
or Renovation
The pertinent portions of RA 6688 are reproduced hereunder: of Buildings
and
K.2 Sulu State College Structures,
and Acquisition _______ _______
For general administration, administration of personnel benefits, salary standardization,
of Equipment ___ ___ 8,612,000 8,612,000
higher education and secondary education services, including locally-funded project as
indicated hereunderP 17,994,000
New Appropriations, by Function/Project
Total New P
Current Operating Appropriations, P6,873, 2,509,00 P8,612,00
Expenditures Sulu State College 000 0 0 P17,994,000
______________________

Mainten
ance
and xxx xxx xxx
Other
Operatin
Personal g
Expense Capital Ou New Appropriations, by Object of
Services s tlays Total Expenditures
(In Thousand Pesos)

A. Functions/Locally-
A. Functions
Funded Project

1 General
. Administration P Current Operating
and Support P1,605, 1,196,00 Expenditures
Service 000 0 P P2,801,000

Personal Services
2 Administration
. of
Personnel
Benefits 608,000 608,000 Total Salaries of
Permanent
Personnel 4,148

3 Salary Total Salaries and Wages of Contractual and

. Standardizatio Emergency Personnel 146
n 57,000 57,000

Total Salaries and

4 Higher 577,000 2,544,000 Wages
1,967,00
 36
4,294 Appellant herein, who used the remainder of the forty thousand pesos (P40,000.00) released
by the DBM for salary differentials, for the payment of the terminal leave benefits of other
school teachers of the Sulu State College, cannot be held guilty of technical malversation in
the absence, as here, of any provision in RA 6688 specifically appropriating said amount for
Other Compensation payment of salary differentials only. In fine, the third and fourth elements of the crime defined
in Article 220 of the Revised Penal Code are lacking in this case. Acquittal is thus in order.
WHEREFORE, the petition is hereby GRANTED. Accordingly, the appealed decision and
resolution of the Sandiganbayan in Criminal Case No. 23261 are REVERSED and SET
Honoraria and ASIDE and appellant ACQUITTED of the crime charged against her. The cash bond posted
Commutable by appellant for her provisional liberty, if any, is ordered returned to her subject to the usual
Allowances 185 auditing and accounting procedures.
SO ORDERED.

Cost of Living
Allowances 1,292

Employees
Compensation
Insurance
Premiums 44

Pag-I.B.I.G.
Contributions 35

Medicare
Premiums 18

Merit Increases 20

Salary
Standardizatio
n 37

Bonuses and
Incentives 511

Others 437

Total Other
Compensation 2,579

O1 Total Personal
Services 6,873

The Court notes that there is no particular appropriation for salary differentials of secondary
school teachers of the Sulu State College in RA 6688. The third element of the crime of
technical malversation which requires that the public fund used should have been
appropriated by law, is therefore absent. The authorization given by the Department of
Budget and Management for the use of the forty thousand pesos (P40,000.00) allotment for
payment of salary differentials of 34 secondary school teachers is not an ordinance or law
contemplated in Article 220 of the Revised Penal Code.
The Court has unequivocably ruled in Parungao vs. Sandiganbayan[18] that in the absence of
a law or ordinance appropriating the public fund allegedly technically malversed (in that case,
the absence of any law or ordinance appropriating the CRBI fund for the concreting of
Barangay Jalung Road), the use thereof for another public purpose (there, for the payment of
wages of laborers working on projects other than the Barangay Jalung Road) will not make
the accused guilty of violation of Article 220 of the Revised Penal Code.

GR NO. 156643, June 27, 2006
FRANCISCO SALVADOR B. ACEJAS III, PETITIONER,
~vs~
PEOPLE OF THE PHILIPPINES, RESPONDENT.
[G.R. No. 156891]
VLADIMIR S. HERNANDEZ, PETITIONER,
~vs~
PEOPLE OF THE PHILIPPINES, RESPONDENT.
DECISION
PANGANIBAN, C.J.:
This Court defers to the Sandiganbayans evaluation of the factual issues. Not having heard
any cogent reasons to justify an exception to this rule, the Court adopts the anti-graft courts
findings. In any event, after meticulously reviewing the records, we find no ground to reverse
the Sandiganbayan.
The Case
Before us are consolidated Petitions for Review[1] assailing the March 8, 2002 Decision[2] and
the January 3[3] and 14, 2003[4] Resolutions of the Sandiganbayan in Criminal Case No.
20194. Francisco SB. Acejas III and Vladimir S. Hernandez were found guilty beyond
reasonable doubt of direct bribery penalized under Article 210 of the Revised Penal Code.
Vladimir S. Hernandez, Victor D. Conanan, SPO3 Expedito S. Perlas, Francisco SB. Acejas
III and Jose P. Victoriano were charged on February 8, 1994, in an Information that reads
thus:
That on or about January 12, 1994, or sometime prior thereto in the City of Manila,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused VLADIMIR S. HERNANDEZ and VICTOR CONANAN, being then employed
both as Immigration officers of the Bureau of Immigration and Deportation, Intramuros,
Manila, hence are public officers, taking advantage of their official positions and
committing the offense in relation to office, conspiring and confederating with Senior
Police Officer 3 EXPEDITO S. PERLAS of the Western Police District Command, Manila,
together with co-accused Atty. FRANCISCO SB. ACEJAS III, of the LUCENARIO,
MARGATE, MOGPO, TIONGCO & ACEJAS LAW OFFICES, and co-accused JOSE P.
VICTORIANO, a private individual, did then and there, willfully, unlawfully and feloniously
demand, ask, and/or extort One Million (P1,000,000.00) PESOS from the spouses
BETHEL GRACE PELINGON and Japanese TAKAO AOYAGI and FILOMENO
PELINGON, JR., in exchange for the return of the passport of said Japanese Takao
Aoyagi confiscated earlier by co-accused Vladimir S. Hernandez and out of said
demand, the complainants Bethel Grace Pelingon, Takao Aoyagi and Filomeno
Pelingon, Jr. produced, gave and delivered the sum of Twenty-Five Thousand
(P25,000.00) Pesos in marked money to the above-named accused at a designated
place at the Coffee Shop, Ground Floor, Diamond Hotel, Ermita, Manila, causing
damage to the said complainants in the aforesaid amount of P25,000.00, and to the
prejudice of government service.[5]
After trial, all the accused except Victoriano were convicted. The challenged Decision
disposed as follows:
WHEREFORE, premises considered, accused Vladimir S. Hernandez, Victor D.
Conanan, Expedito S. Perlas and Francisco SB. Acejas III are hereby found GUILTY
beyond reasonable doubt of the crime of Direct Bribery, and are sentenced to suffer the
indeterminate penalty of four (4) years, nine (9) months and ten (10) days of prision
correccional, as minimum, to seven (7) years and four (4) months of prision mayor, as
maximum, and to pay a fine of three million pesos (P3,000,000.00). Accused Vladimir S.
Hernandez and Victor D. Conanan shall also suffer the penalty of special temporary
disqualification. Costs against the accused.
On ground of reasonable doubt, accused Jose P. Victoriano is hereby ACQUITTED of
the crime charged. The surety bond he posted for his provisional liberty is cancelled. The
Hold Departure Order against him embodied in this Courts Order dated July 24, 2000 is
recalled.[6]
The first Resolution acquitted Conanan and denied reconsideration of the other accused. The Testifying for the prosecution were Bethel Grace Pelingon Aoyagi, Filomeno Jun Basaca
second Resolution denied Petitioner Acejas Motion for New Trial. Pelingon, Jr., and Carlos Romero Saunar.[11]
Hence, petitioners now seek recourse in this Court.[7]
The Facts
The facts[8] are narrated by the Sandiganbayan as follows:
At around 4:00 to 5:00 p.m. of December 17, 1993, accused Bureau of Immigration and
Deportation (BID) Intelligence Agent Vladimir Hernandez, together with a reporter, went
to the house of Takao Aoyagi and Bethel Grace Pelingon-Aoyagi at 27 Pacific Drive,
Grand Villa, Sto. Nio, Paraaque, Metro Manila. His purpose was to serve Mission
Order No. 93-04-12 dated December 13, 1993, issued by BID Commissioner Zafiro
Respicio against Takao Aoyagi, a Japanese national. Hernandez told Takao Aoyagi,
37
through his wife, Bethel Grace, that there were complaints against him in Japan and that
he was suspected to be a Yakuza big boss, a drug dependent and an overstaying alien.
To prove that he had done nothing wrong, Takao Aoyagi showed his passport to
Hernandez who issued an undertaking (Exh. B) which Aoyagi signed. The undertaking
stated that Takao Aoyagi promised to appear in an investigation at the BID on December
20, 1993, and that as a guarantee for his appearance, he was entrusting his passport to
Hernandez. Hernandez acknowledged receipt of the passport.
On December 18, 1993, Bethel Grace Aoyagi called accused Expedito Dick
Perlas[9] and informed him about the taking of her husbands passport by Hernandez.
Perlas told her he would refer their problem to his brother-in-law, Atty. Danton Lucenario
of the Lucenario, Margate, Mogpo, Tiongco and Acejas III Law Firm. It was at the
Sheraton Hotel that Perlas introduced the Aoyagis to Atty. Lucenario. They discussed the
problem and Atty. Lucenario told the Aoyagis not to appear before the BID on December
20, 1993.
As advised by Atty. Lucenario, Takao Aoyagi did not appear before the BID. Instead,
Atty. Rufino M. Margate of the Lucenario Law Firm filed with the BID an Entry of
Appearance (Exh. 6 Acejas). Atty. Margate requested for copies of any complaint-
affidavit against Takao Aoyagi and asked what the ground was for the confiscation of x x
x Aoyagis passport.
Hernandez prepared a Progress Report (Exh. 5 Hernandez) which was submitted to
Ponciano M. Ortiz, the Chief of Operations and Intelligence Division of the BID. Ortiz
recommended that Takao Aoyagi, who was reportedly a Yakuza and a drug dependent,
be placed under custodial investigation.
In the evening of December 22, 1993 at the Diamond Hotel, the Aoyagis met accused
Atty. Francisco Acejas III who was then accompanied by Perlas. Atty. Acejas informed
them that it would be he who would handle their case. A Contract for Legal Services
(Exh. D) dated December 22, 1993 was entered into by Takao Aoyagi and Atty. Acejas,
who represented the Lucenario Law Firm.
In the morning of December 23, 1993, Perlas and Atty. Acejas accompanied the
Aoyagis to the Domestic Airport as the latter were going to Davao. It was here that Takao
Aoyagi paid Atty. Acejas P40,000.00, P25,000 of which is 50% of the acceptance fee,
and the P15,000.00 is for filing/docket fee (Exh. O). The Aoyagis were able to leave
only in the afternoon as the morning flight was postponed.
On December 24, 1993, while attending a family reunion, Bethel Grace Pelingon-Aoyagi
informed her brother, Filomeno Jun Pelingon, Jr., about her husbands passport.
On January 2, 1994, Jun Pelingon talked to BID Commissioner Zafiro Respicio in Davao
and told the latter of Takao Aoyagis problem with the BID. Respicio gave Pelingon his
calling card and told Pelingon to call him up in his office. That same day, Jun Pelingon
and Mr. and Mrs. Aoyagi flew back to Manila.
On January 5, 1994, Jun Pelingon, Dick Perlas, Atty. Acejas, Vladimir Hernandez, Vic
Conanan and Akira Nemoto met at the Aristocrat Restaurant in Roxas Boulevard.
Another meeting was arranged at the Manila Nikko Hotel in Makati on January 8, 1994
with Jun Pelingon, Perlas, Atty. Acejas and
Hernandez attending.
On January 11, 1994, on account of the alleged demand of P1 million for the return of
Takao Aoyagis passport, Jun Pelingon called up Commissioner Respicio. The latter
referred him to Atty. Angelica Somera, an NBI Agent detailed at the BID. It was Atty.
Carlos Saunar, also of the NBI, and Atty. Somera who arranged the entrapment
operation.
On January 12, 1994, Vladimir Hernandez returned the passport to Takao Aoyagi at the
Coffee Shop of the Diamond Hotel. The NBI Team headed by Attorneys Saunar and
Somera arrested Dick Perlas, Atty. Acejas and Jose Victoriano after the latter picked up
the brown envelope containing marked money representing the amount being allegedly
demanded. Only Perlas, Acejas and Victoriano were brought to the NBI
Headquarters.[10]
Version of the Prosecution
The prosecution evidence showed that it was during a meeting on January 5, 1994, when P1
million as consideration for the passport was demanded. Conanan averred that Aoyagi was a
drug trafficker and Yakuza member. The money was to be used to settle the alleged
problem and to facilitate the processing of a permanent visa. When Pelingon negotiated to
lower the amount demanded, Conanan stated that there were many of them in the Bureau of
Immigration and Deportation (BID).[12]
During the second meeting held at Hotel Nikko, Pelingon was informed that the press and
government enforcers were after Aoyagi. Hernandez asked for a partial payment of
P300,000, but Pelingon said that the whole amount would be given at just one time to avoid
another meeting.[13]

After talking to Commissioner Respicio on January 11, 1994,[14] Pelingon called up Dick
Perlas to schedule the exchange.
Regarding the involvement of Petitioner Acejas, the Office of the Solicitor General (OSG)
adds the following facts:
1.2. On 5 January 1994, [Acejas] and Perlas met Pelingon at the Aristocrat Restaurant.
[Acejas] informed Pelingon that he would file a P1 million lawsuit against the BID agents
who confiscated the passport of Takao Aoyagi. [Acejas] showed Pelingon several
papers, which allegedly were in connection with the intended lawsuit. However, when
Hernandez and Conanan arrived at the Aristocrat Restaurant, [Acejas] never mentioned
to the BID agents the P1 million lawsuit. [Acejas] just hid the papers he earlier showed to
Pelingon inside his [Acejas] bag.
1.3. [Acejas] was present when Hernandez proposed that Takao Aoyagi pay the amount
of P1 million in exchange for the help he would extend to him (Takao) in securing a
permanent visa in the Philippines. [Acejas], who was Aoyagis lawyer, did nothing.
1.4. On 10 January 1994, [Acejas], Pelingon, Perlas and Hernandez met at the Hotel
Nikko. Thereat, Hernandez informed the group that certain government officials and even
the press were after Takao Aoyagi. Hernandez said that Takao Aoyagi can make a
partial payment of P300,000.00. Pelingon however, assured the group that Takao Aoyagi
would pay in full the amount of P1 million so as not to set another meeting date. [Acejas]
kept quiet throughout the negotiations.
xxx xxx xxx
1.5.a. [Acejas] was present during the entrapment that took place at the Diamond Hotel.
Hernandez handed the passport to [Acejas], who handed it then to Perlas and thereafter
to Takao Aoyagi. After Takao Aoyagi went over his confiscated passport, Bethel Grace
handed to Hernandez the envelope[15] containing the supposed P1 million. Hernandez
refused and motioned that [Acejas] be the one to receive it. [Acejas] willingly got the
envelope and placed it beside him and Perlas.
x x x before Hernandez handed out Aoyagis passport, he reminded the group of their
earlier agreement of kaliwaan, i.e., that after the passport is released, the Aoyagis
should give the P1 million.[16]
Version of the Defense
Vladimir S. Hernandez, Expedito S. Perlas, Francisco SB. Acejas III, Victor D. Conanan and
Ponciano M. Ortiz testified for the defense.[17]
To the Sandiganbayans narration, Hernandez adds:
6. x x x [Hernandez], an intelligence agent of the Bureau of Immigration and Deportation
(BID), went to the house of Private Respondents Takao and Bethel Grace Aoyagi to
enforce and serve a Mission Order issued and assigned to him by BID Commissioner
Zafiro Respicio on December 13, 1993, for the arrest of Takao Aoyagi.
7. When Bethel Grace showed [Hernandez] her husbands passport, [Hernandez] found
out that the latters [authority] to stay had already been duly extended. He invited private
respondents to go with him to the BID office. They declined, but made a written
undertaking to appear at the BID office for investigation on December 20, 1993. As
security for said undertaking, Bethel Grace Aoyagi entrusted to [Hernandez] her
husbands passport, receipt of which [Hernandez], in return, acknowledge[d] in the same
instrument.
8. On January 19, 1994, [Hernandez] signified that the record of Aoyagi has been
cleared and that he can pick up his passport at the BID office. In connection therewith,
[Hernandez] was invited by Perlas to make the return at a lunchtime meeting to be held
at the Diamond Hotel Coffee Shop. Upon arrival thereat, [Hernandez] gave the passport
to Atty. Acejas, Aoyagis counsel, and within less than ten minutes, he left the coffee
shop.[18]
In his Petition, Acejas narrates some more occurrences as follows:
1. 18th December 1993 The law firm of Lucenario Margate Mogpo Tiongco & Acejas
was engaged by the spouses Takao Aoyagi and Bethel Grace Pelingon Aoyagi. x x x.
xxx xxx xxx
3. 22nd December 1993
a) The managing partner of the law firm, Atty. Lucenario, briefed [Acejas] about the facts
regarding the confiscation by agents of the BID of the passport belonging to a Japanese
client. x x x.
b) Thereafter, [Acejas] was tasked by Atty. Lucenario to meet his brother-in-law Mr.
Expedito Perlas, who happened to be a policeman and a friend of Mr. Takao
Aoyagi. Thus, [Acejas] met Mr. Perlas for the first time in the afternoon of this date.
c) Also, for the first time, [Acejas] met the clients, spouses Aoyagis, at the Diamond
Hotel, where they were staying. x x x [Acejas] advised them that the law firm decided that
the clients can file an action for Replevin plus Damages for the recovery of the Japanese
passport.
38
d) The CONTRACT FOR LEGAL SERVICES was signed between the client and the law
firm, thru [Acejas] as partner thereof. x x x The amount of Fifty Thousand Pesos (Php.
50,000.00) was agreed to be paid by way of Case Retainers/Acceptance Fees, which
was supposed to be payable upon (the) signing (t)hereof, and the sum of Php. 2,000.00
by way of appearance fee. However, the client proposed to pay half only of the
acceptance fee (Php. 25,000.00), plus the estimated judicial expenses for the filing or
docket fees (Php. 15,000.00). x x x It was then further agreed that the balance of Php.
25,000.00 was supposed to be given upon the successful recovery of the Japanese
passport.
e) The cli
ents informed [Acejas] that they are supposed to leave for Davao the following day on
the 23rd because they will spend their Christmas in Davao City; but they promised that
they will be back on the 26th, which is a Sunday, so that on the 27th, which is a Monday,
the complaint against the BID officers will have to be filed in Court.
xxx xxx xxx
6. 27th December 1993 (T)he law office received word from Mr. Perlas that the
Japanese did not come back on the 26th (December), x x x so that the case cannot be
filed on the 27th instead (it has) to wait for clients instruction.
7. 4th January 1994 In the late afternoon, the law firm received a telephone call from
Mr. Perlas informing (it) that the Japanese is already in Manila and he was requesting for
an appointment with any of the lawyer of the law firm on January 5, 1994.
8. 5th January 1994 [Acejas] met for the first time Mr. Filomeno Pelingon Jr. including
a certain Nimoto Akira. x x x.
b) [Acejas] told Mr. Pelingon Jr. that all the pleadings are ready for filing but, of course,
the Japanese client and the wife should first read the complaint and sign if they want to
pursue the filing of the complaint against the BID agents.
c) For the first time, Mr. Pelingon advised against the intended filing of the case. x x x
He instead suggested that he wants to directly negotiate with the BID agents.
d) Thereafter, Mr. Pelingon instructed Mr. Dick Perlas to contact the BID agent who
confiscated the Japanese passport. Mr. Perlas and Mr. Pelingon were able to contact
the BID agent.
e) For the first time [Acejas] saw Mr. Hernandez, when the latter arrived and also
accused Victor Conanan. In the course of the meeting, a confrontation ensued between
[Acejas] and [Hernandez] concerning the legal basis for the confiscation of the passport.
[Acejas] demanded for the return of the Japanese passport x x x. Mr. Hernandez said
that if there are no further derogatory report concerning the Japanese client, then in a
matter of week (from January 5 to 12), he will return the passport.
f) [Acejas] gave an ultimatum to Mr. Hernandez that if the Japanese passport will not be
returned in one (1) weeks time, then (the law firm) will pursue the filing of the replevin
case plus the damage suit against him including the other BID agents.
g) x x x Mr. Pelingon Jr. for the second time advised against the filing thereof saying
that his Japanese brother-in-law would like to negotiate or in his own words magbibigay
naman [i.e. will give money anyway].
9. 8th January 1994
a) Again, Mr. Perlas called the law office and informed x x x that the Japanese client is
now in Manila. Petitioner attended the meeting they arranged in (Makati) and meet Dick
Perlas, Vladimir Hernandez and Pelingon Jr. x x x.
b) x x x according to Pelingon Jr., the Japanese does not want to meet with anybody
because anyway they are willing to pay or negotiate.
c) [Hernandez was also] present at the meeting and [Acejas] met him for
the second time. x x x [Acejas] said that if [Hernandez] will not be able to return the
passport on or before January 12, 1994, then the law firm will have no choice but to file
the case against him x x x. Again, for the third time Mr. Pelingon warned against the filing
of the case because he said that he would directly negotiate with the BID agents.
d) The Makati meeting ended up with the understanding that Mr. Hernandez will have to
undertake the return [of] the Japanese passport on or before January 12, 1994.
10. 12th January 1994
a) Mr. Perlas called up the law office informing that the Japanese client was already in
Manila and was requesting for an appointment with the lawyers at lunchtime of January
12 at the Diamond Hotel where he was billeted.
xxx xxx xxx
c) x x x xxx xxx
At this meeting, the Japanese was inquiring on the status of the case and he was
wondering why the Japanese passport is not yet recovered when according to him he
has already paid for the attorney fees. And so, [Acejas] explained to him that the case
has to be filed and they still have to sign the complaint, the Special Power of Attorney

and the affidavit relative to the filing of replevin case. But the Japanese would not fully
understand. So, Pelingon Jr. again advised against the filing of the case saying that
since there is no derogatory record of Mr. Aoyagi at the BID office, then the BID agents
should return the Japanese passport.
xxx xxx xxx
e) Thereafter, Pelingon, Jr. and Dick Perlas x x x tried to contact Mr. Hernandez. Since,
they were able to contact the latter, we waited until around 2:00 p.m. When Mr.
Hernandez came, he said that the Japanese client is cleared at the BID office and so, he
can return the Japanese passport and he gave it to [Acejas]. x x x When [Acejas]
received the Japanese passport, (he) checked the authenticity of the documents and
finding that it was in good order, (he) attempted to give it to the Japanese client.
Very strangely when [Acejas] tried to hand-over the Japanese passport to the Japanese
across the table, the Japanese was motioning and wanted to get the passport under the
table. x x x [Acejas] found it strange. (He) x x x thought that it was a Japanese custom to
receive things like that under the table. But nonetheless, [Acejas] did not give it under the On the other hand, Petitioner Acejas simply enumerates the following points:
table and instead passed it on to Mr. Dick Perlas who was seated at (his) right. And so, it
was Mr. Dick Perlas who took the passport from [Acejas] and finally handed it over to Mr.
Aoyagi. x x x. After that, there was a little chat between Mr. Hernandez and the client,
and Mr. Hernandez did not stay for so long and left.
Still, thereafter, (w)hen the Japanese passport was received, Bethel Grace Aoyagi and
[Acejas] were talking and she said since the Japanese passport had been
recovered, they are now willing to pay the Php. 25,000.00 balance of the acceptance
fee.
Mrs. Aoyagi was giving [Acejas] a brown envelope but she want[ed] Mr. Hernandez to
receive it while Mr. Hernandez was still around standing. But Mr. Hernandez did not
receive it.
Since, the payment is due to the law firm, [Acejas] received the brown envelope.
xxx xxx xxx
Not long after, [Acejas] saw his companion, accused Mr. Victoriano, who was signaling
something as if there was a sense of urgency. [Acejas] immediately stood up and left
hurriedly. When [Acejas] approached Mr. Victoriano, he said that the car which [Acejas]
parked in front of the Diamond Hotel gate, somebody took the car. [Acejas] went out
and checked and realized that it was valet parking so it was the parking attendant who
took the car and transferred the car to the parking area. [Acejas] requested Mr.
Victoriano to get (the) envelope and the coat, at the table.
g) When [Acejas] went out, [Acejas] already looked for the parking attendant to get the
car. When the car arrived, [Acejas] just saw from the doors of the Diamond Hotel Mr.
Jose Victoriano and Mr. Dick Perlas coming out already in handcu
ffs and collared by the NBI agents. They then were taken to the NBI, except the
accused Vladimir Hernandez.[19]
Ruling of the Sandiganbayan
The Sandiganbayan ruled that the elements of direct bribery,[20] as well as conspiracy in the and 4) that act related to the exercise of official duties.
39
II. Whether or not the Honorable Sandiganbayan gravely abused its discretion when it
overlooked the fact that the legal requisites of the crime are not completely present as to
warrant [Hernandez] complicity in the crime charged.
III. Whether or not respondent Sandiganbayan, 5th Division, ruled erroneously when it
relied solely on the naked and uncorroborated testimonies of the late Filomeno Jun
Pelingon, Jr. in order to declare the existence of a conspiracy to commit bribery, as well
as the guilt of the accused.
IV. Whether or not [respondent] courts acquittal of co-accused Victor Conanan and its
conviction of [Hernandez] for the offense as charged effectively belies the existence of a
conspiracy.
V. Whether or not the respondent Sandiganbayan committed grave abuse of discretion
amounting to lack of, or in excess of jurisdiction when it found [Hernandez] guilty beyond
reasonable doubt of the crime of direct bribery.[30]
1. The Conspiracy Theory
2. The presence of lawyer-client relationship; duty to clients cause; lawful performance
of duties
3. Instigation not entrapment
4. Credibility of witness and testimony
5. Affidavit of desistance; effect: creates serious doubts as to the liability of the accused
6. Elements of bad faith
7. Elements of the crime (direct bribery)
8. Non-presentation of complaining victim tantamount to suppression of evidence[31]
In the main, petitioners are challenging the finding of guilt against them. The points they
raised are therefore intertwined and will be discussed jointly.
The Courts Ruling
The Petitions have no merit.
Main Issue:
Finding of Guilt
The crime of direct bribery exists when a public officer 1) agrees to perform an act that
constitutes a crime in consideration of any offer, promise, gift or present; 2) accepts the gift in
consideration of the execution of an act that does not constitute a crime; or 3) abstains from
the performance of official duties.[32]
Petitioners were convicted under the second kind of direct bribery, which contained the
following elements: 1) the offender was a public officer, 2) who received the gifts or presents
personally or through another, 3) in consideration of an act that did not constitute a crime,
[33]

commission of the crime,[21] had been proven. Hernandez and Conanan demanded Hernandez claims that the prosecution failed to show his involvement in the crime. Allegedly,
money;[22] Perlas negotiated and dealt with the complainants;[23] and Acejas accepted the he was merely implementing Mission Order No. 93-04-12, which required him to investigate
payoff and gave it to Perlas.[24] Takao Aoyagi.[34] The passport was supposed to have been voluntarily given to him as a
Victoriano was acquitted on reasonable doubt. Although he had picked up the envelope guarantee[35] to appear at the BID office, but he returned it upon the instruction of his
[25]

containing the payoff, this act did not sufficiently show that he had conspired with the other superior.
accused.[26] The chain of circumstances, however, contradicts the contention of Hernandez. It was he
The Sandiganbayan did not give credence to the alleged belief of Acejas that the money was who had taken the passport of Takao Aoyagi.[36] On various dates,[37] he met with Takao and
the balance of the law firms legal fees.[27] If he had indeed believed that the money was Bethel Grace Aoyagi, and also Pelingon, regarding the return of the passport. Hernandez
payable to him, he should have kept and retained it. The court then inferred that he had then asked for a down payment on the payoff,[38] during which he directed Bethel Grace to
merely been pretending to protect his clients rights when he threatened to file a suit against deliver the money to Acejas.[39]
Hernandez.[28] Bethel Grace Aoyagis testimony, which was confirmed by the other witnesses, proceeded as
The January 3, 2003 Resolution acquitted Conanan and denied the Motions for follows:
Reconsideration of Hernandez, Acejas and Perlas. According to the Sandiganbayan,
PROSECUTOR MONTEMAYOR:
Conanan was not shown to be present during the meetings on January 8 and 12,
1994. His presence during one of those meetings, on January 5, 1994, did not conclusively
[29]

show his participation as a co-conspirator.

The January 14, 2003 Resolution denied Acejas Supplemental Motion, which prayed for a Q: When Vlademir Hernandez arrived, what happened?
new trial.
A: He got the passport from his pocket and passed it on to Atty. Acejas, sir.
The Issues
Petitioner Hernandez raises the following issues:
I. Whether or not respondent court erred in ruling that [Hernandez] was part of the Q: What happened after he gave the passport to Atty. Acejas?
conspiracy to extort money from private respondents, despite lack of clear and
convincing evidence. A: [Acejas] gave the passport to Mr. Expedito Perlas, sir.
 40

Q: After that, what happened? PROSECUTOR MONTEMAYOR:

A: Then, [Perlas] gave it to Mr. Aoyagi, sir.

Q: And at the same time pointed to Atty. Acejas?

Q: The passport? A: Yes, sir.

A: Yes, sir.

Q: And your husband gave the envelope to Atty. Acejas?

Q: And when Mr. Aoyagi received the passport, what did you do or what did Mr. A: Yes, sir.
Aoyagi do?

A: He checked all the pages and he kept it, sir.

Q: And Atty. Acejas, in turn, handed the said envelope to whom?

A: Expedito Perlas, sir.

xxx xxx xxx

Q: Did Expedito Perlas [receive] that envelope?

Q: What did you do with that money after Mr. Aoyagi received the passport?
A: Yes, sir.
A: Because our agreement is that after giving the passport we would give the money
so when Mr. Perlas handed to my husband the passport, I gave the money placed
on my lap to my husband and he passed it to Mr. Hernandez who refused the
same. Q: After that, what happened?

A: Mr. Perlas put the money on his side in between him and Atty. Acejas, sir.

ATTY. ACEJAS:

Your Honor, please, may I just make a clarification that when the witness referred Q: And then, what happened?
to the money it pertains to the brown envelope which allegedly contains the money
x x x. A: After the money was placed where it was, we were surprised, I think, it happened in
just seconds[.] Mr. Vlademir Hernandez immediately left and then all of a sudden
somebody came and picked up the envelope, sir.[40]

AJ ESCAREAL: Significantly, Hernandez does not address the lingering questions about why Takao Aoyagi
or his representatives had to negotiate for the retrieval of the passport during the meetings
Noted. held outside the BID. Ponciano Ortiz, chief of the Operation and Intelligence Division of the
BID, testified that it was not a standard operating procedure to officially return withheld
passports in such locations.[41] It can readily be inferred that Hernandez had an ulterior
motive for withholding the passport for some time despite the absence of any legal purpose.
PROSECUTOR MONTEMAYOR: Also, Hernandez cannot claim innocence based on Conanans acquittal.[42] While the
testimony of Pelingon was the only evidence linking Conanan to the conspiracy,[43] there was
an abundance of evidence showing Hernandezs involvement.
Q: Did Mr. Hernandez got hold or touched the envelope? Acejas, on the other hand, belies his involvement in the conspiracy. He attacks the
prosecutions version that he was silent during the negotiations for the return of the
A: No, sir. passport.[44] According to him, he kept giving Hernandez an ultimatum to return the passport,
with threats to file a court case.
Acejas testified that he had wanted to file a case against Hernandez, but was prevented by
Spouses Aoyagi. His supposed preparedness to file a case against Hernandez might have
Q: When he [did] not want to receive the envelope, what did your husband do? just been a charade and was in fact belied by Pelingons testimony regarding the January 5,
1994 meeting:
A: When Mr. Vlademir Hernandez refused to receive the money, he pointed to Atty.
Acejas so my husband handed it to Atty. Acejas who received the same and later ATTY. VALMONTE:
on passed it to Mr. Perlas.

Q: Who arrived first at Aristocrat Restaurant, you or Acejas?

Q: When Mr. Hernandez pointed to Atty. Acejas, did he say anything?
A: Acejas arrived together with Dick Perlas[. T]hey arrived ahead of me, sir.
A: None, sir, he just motioned like this.

xxx xxx xxx

INTERPRETER:

Witness motioning by [waving] her two (2) hands, left and right.
Q: When the three (3) of you were talking that was the time that Atty. Acejas was
 41
showing you documents that he was going to file [a] P1 million damage suit against A: Mr. Perlas put the money on his side in between him and Atty. Acejas, sir.
Hernandez?

A: Yes, sir.
Q: And then, what happened?

Q: Now, is it not that when Hernandez and Cunanan arrived and you were talking with
each other, Atty. Acejas also threatened, reiterated his threat to Hernandez that he WITNESS:
would file [a] P1 million damage suit should Hernandez [fails] to return the
passport?

A: When the group [was] already there, the P1 million [damage suit] was not A: After the money was placed where it was, we were surprised, I think, it happened in
[anymore] mentioned, sir.[45] just seconds[.] Mr. Vladimir Hernandez immediately left and then all of a sudden
somebody came and picked up the envelope, sir.
Even assuming that Acejas negotiated for the return of the passport on his clients behalf, he
still failed to justify his actions during the entrapment operation. The witnesses all testified
that he had received the purported payoff. On this point, we recount the testimony of Bethel
Grace Aoyagi: PROSECUTOR MONTEMAYOR:
PROSECUTOR MONTEMAYOR:

Q: Do you know the identity of that somebody who picked up the envelope?
xxx xxx xxx

xxx xxx xxx

Q: When he [did] not want to receive the envelope, what did your husband do?

A: When Mr. Vlademir Hernandez refused to receive the money, he pointed to Atty.
A: Victoriano, sir.[46]
Acejas so my husband handed it to Atty. Acejas who received the same and later
on passed it to Mr. Perlas. Acejas failed to justify why he received the payoff money. It would be illogical to sustain his
contention that the envelope represented the balance of his firms legal fees. That it was
given to Hernandez immediately after the return of the passport leads to the inescapable
conclusion that the money was a consideration for the return. Moreover, Acejas should have
Q: When Mr. Hernandez pointed to Atty. Acejas, did he say anything? kept the amount if he believed it to be his. The Court agrees with the Sandiganbayans
pronouncement on this point:
A: None, sir, he just motioned like this.
x x x. If he believed that the brown envelope contained the balance of the acceptance
fee, how come he passed it to Perlas? His passing the brown envelope to Perlas only
proves that the same did not contain the balance of the acceptance fee; otherwise, he
INTERPRETER: should have kept and retained it. Moreover, the three prosecution witnesses testified that
the brown envelope was being given to Hernandez who refused to accept the same. This
Witness motioning by [waving] her two (2) hands, left and right. further shows that the brown envelope was not for the balance of the acceptance fee
because, if it were, why was it given to Hernandez.
xxx xxx xxx

PROSECUTOR MONTEMAYOR: Acejas defense was further weakened by the fact that his testimony as to why he left
immediately after the brown envelope was given to him was uncorroborated. He should
have presented accused Victoriano to corroborate his testimony since it was the latter
who allegedly called him and caused him to leave their table. This, he did not do. The
Q: And at the same time pointed to Atty. Acejas? ineluctable conclusion is that he was, indeed, in cahoots with his co-accused.[47]
Lawyers Duty
A: Yes, sir.
Acejas alleges that the Sandiganbayan failed to appreciate his lawyer-client relationship with
the complainants. He was supposedly only acting in their best interest[48] and had the right to
be present when the passport was to be returned.[49]
Q: And your husband gave the envelope to Atty. Acejas?
True, as a lawyer, it was his duty to represent his clients in dealing with other people. His
presence at Diamond Hotel for the scheduled return of the passport was justified. This fact,
A: Yes, sir.
however, does not support his innocence
Acejas, however, failed to act for or represent the interests of his clients. He knew of the
payoff, but did nothing to assist or protect their rights, a fact that strongly indicated that he
Q: And Atty. Acejas, in turn, handed the said envelope to whom? was to get a share. Thus, he received the money purporting to be the payoff, even if he was
not involved in the entrapment operation. The facts revealed that he was a conspirator.
A: Expedito Perlas, sir.
The Court reminds lawyers to follow legal ethics[50] when confronted by public officers who
extort money. Lawyers must decline and report the matter to the authorities.[51] If the extortion
is directed at the client, they must advise the client not to perform any illegal act. Moreover,
they must report it to the authorities, without having to violate the attorney-client
x x x xxx xxx
privilege.[52] Naturally, they must not participate in the illegal act.[53]
Acejas did not follow these guidelines. Worse, he conspired with the extortionists.

Q: After that, what happened? Instigation

Also futile is the contention of petitioners that Pelingon instigated the situation to frame them
into accepting the payoff.[54] Instigation is the employment of ways and means to lure persons
 42
into the commission of an offense in order to prosecute them.[55] As opposed to entrapment, in procuring a visa. Petitioner Acejas was his co-conspirator. Second, the offenders received
criminal intent originates in the mind of the instigator.[56] the money as payoff, which Acejas received for the group and then gave to Perlas. Third, the
money was given in consideration of the return of the passport, an act that did not constitute
There was no instigation in the present case, because the chain of circumstances showed an a crime. Fourth, both the confiscation and the return of the passport were made in the
extortion attempt. In other words, the criminal intent originated from petitioners, who had exercise of official duties.
arranged for the payoff.
For taking direct part in the execution of the crime, Hernandez and Acejas are liable as
During the cross-examination of Bethel Grace Aoyagi, pertinent was Associate Justice principals.[74] The evidence shows that the parties conspired to extort money from Spouses
Escareal clarifying question as follows: Aoyagi. A conspiracy exists even if all the parties did not commit the same act, if the
participants performed specific acts that indicated unity of purpose in accomplishing a
AJ ESCAREAL:
criminal design.[75] The act of one is the act of all.
WHEREFORE, the Petitions are DENIED, and the assailed Decision and Resolutions
AFFIRMED. Costs against petitioners.
[Q:] Did Mr. Hernandez say anything when he returned the passport to your husband?
SO ORDERED.
A: He did not say anything except that he instructed [the] group to abide with the
agreement that upon handing of the passport, the money would also be given
immediately (magkaliwaan).[57]

Alleged Discrepancies
According to Acejas, Pelingons testimonies given in his Complaint-Affidavit, Supplemental-
Affidavit, inquest testimony, testimony in court, and two Affidavits of Desistance were
contradictory.[58] He cites these particular portions of Pelingons Affidavit:
5. That having been enlightened of the case, and conscious that I might be prosecuting
innocent men, I have decided on my own disposition, not to further testify against any of
the accused in the Sandiganbayan or in any court or tribunal, regarding the same cause
of action.
6. That this affidavit of desistance to further prosecute is voluntarily executed, and that
no reward, promise, consideration, influence, force or threat was executed to secure this
affidavit.[59]
Pelingon testified that he had executed the Affidavit of Desistance because of a threat to his
life.[60] He did not prepare the Affidavit; neither was it explained to him. Allegedly, his true
testimony was in the first Complaint-Affidavit that he had executed.[61]
By appearing and testifying during the trial, he effectively repudiated his Affidavit of
Desistance. An affidavit of desistance must be ignored when pitted against positive evidence
given on the witness stand.[62]
Acejas has failed to identify the other material points that were allegedly inconsistent. The
Court therefore adopts the Sandiganbayans finding that these were minor details that were
not indicative of the lack of credibility of the prosecution witnesses.[63] People v. Eligino[64] is in
point:
x x x. While witnesses may differ in their recollections of an incident, it does not
necessarily follow from their disagreement that all of them should be disbelieved as liars
and their testimony completely discarded as worthless. As long as the mass of testimony
jibes on material points, the slight clashing statements neither dilute the witnesses
credibility nor the veracity of their testimony. Thus, inconsistencies and contradictions
referring to minor details do not, in any way, destroy the credibility of witnesses, for
indeed, such inconsistencies are but natural and even enhance credibility as these
discrepancies indicate that the responses are honest and unrehearsed.[65]
Suppression of Evidence
Acejas further raises the issue of suppression of evidence. Aoyagi, from whom the money
was supposedly demanded, should have been presented by the prosecution as a witness.[66]
The discretion on whom to present as prosecution witnesses falls on the People.[67] The
freedom to devise a strategy to convict the accused belongs to the
prosecution.[68] Necessarily, its decision on which evidence, including which witnesses, to
present cannot be dictated by the accused or even by the trial court.[69] If petitioners believed
that Takao Aoyagis testimony was important to their case, they should have presented him
as their witness.[70]
Finally, Acejas claims that his Comment/Objection to the prosecutions Formal Offer of
Evidence was not resolved by the Sandiganbayan.[71] In that Comment/Objection, he had
noted the lateness in the filing of the Formal Offer of Evidence.
It may readily be assumed that the Sandiganbayan admitted the prosecutions Formal Offer of
Evidence upon the promulgation of its Decision. In effect, Acejas Comment/Objection was
deemed immaterial. It could not overrule the finding of guilt. Further, it showed no prayer that
the Sandiganbayan needed to act upon.[72]
Finally we reiterate that, as a rule, factual findings of the Sandiganbayan are conclusive upon
this Court.[73] We are convinced that these were clearly based on the evidence adduced in
this case.
In sum, we find that the prosecution proved the elements of direct bribery. First, there is no
question that the offense was committed by a public officer. BID Agent Hernandez extorted
money from the Aoyagi spouses for the return of the passport and the promise of assistance

GR NO. 164185, July 23, 2008
PEOPLE OF THE PHILIPPINES, PETITIONER,
~vs~
THE SANDIGANBAYAN (FOURTH DIVISION) & ALEJANDRO A. VILLAPANDO,
RESPONDENTS.
DECISION
QUISUMBING, J.:
This petition for certiorari filed by the Office of the Ombudsman through the Office of the
Special Prosecutor assails the May 20, 2004 Decision[1] of the Sandiganbayan, Fourth
Division, in Criminal Case No. 27465, granting private respondent Alejandro A. Villapandos
Demurrer to Evidence[2] and acquitting him of the crime of unlawful appointment under Article
244[3] of the Revised Penal Code.
The facts culled from the records are as follows:
During the May 11, 1998 elections, Villapando ran for Municipal Mayor of San Vicente,
Palawan. Orlando M. Tiape (now deceased), a relative of Villapandos wife, ran for Municipal
Mayor of Kitcharao, Agusan del Norte. Villapando won while Tiape lost. Thereafter, on July
1, 1998, Villapando designated Tiape as Municipal Administrator of the Municipality of San
Vicente, Palawan.[4] A Contract of Consultancy[5] dated February 8, 1999 was executed
between the Municipality of San Vicente, Palawan and Tiape whereby the former employed
the services of Tiape as Municipal Administrative and Development Planning Consultant in
the Office of the Municipal Mayor for a period of six months from January 1, 1999 to June 30,
1999 for a monthly salary of P26,953.80.
On February 4, 2000, Solomon B. Maagad and Renato M. Fernandez charged Villapando
and Tiape for violation of Article 244 of the Revised Penal Code before the Office of the
Deputy Ombudsman for Luzon.[6] The complaint was resolved against Villapando and Tiape
and the following Information[7] dated March 19, 2002 charging the two with violation of Article
244 of the Revised Penal Code was filed with the Sandiganbayan:
xxxx
That on or about 01 July 1998 or sometime prior or subsequent thereto, in
San Vicente, Palawan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, ALEJANDRO A.
VILLAPANDO, a public officer, being then the Municipal Mayor of San
Vicente, Palawan, committing the crime herein charged, in relation to and
taking advantage of his official functions, conspiring and confederating with
accused Orlando M. Tiape, did then and there wilfully, unlawfully and
feloniously appoint ORLANDO M. TIAPE as a Municipal Administrator of
San Vicente, Palawan, accused Alejandro A. Villapando knowing fully well
that Orlando Tiape lacks the qualification as he is a losing mayoralty
candidate in the Municipality of Kitcharao, Agusan del Norte during the May
1998 elections, hence is ineligible for appointment to a public office within
one year (1) from the date of the elections, to the damage and prejudice of
the government and of public interest.
CONTRARY TO LAW.[8]
The Information was docketed as Criminal Case No. 27465 and raffled to the Fourth Division
of the Sandiganbayan.
Upon arraignment on September 3, 2002, Villapando pleaded not guilty. Meanwhile, the case
against Tiape was dismissed after the prosecution proved his death which occurred on July
26, 2000.[9]
After the prosecution rested its case, Villapando moved for leave to file a demurrer to
evidence. The Sandiganbayan, Fourth Division denied his motion but gave him five days
within which to inform the court in writing whether he will nonetheless submit his Demurrer to
Evidence for resolution without leave of court.[10] Villapando then filed a Manifestation of
Intent to File Demurrer to Evidence,[11] and was given 15 days from receipt to file his
Demurrer to Evidence. He filed his Demurrer to Evidence[12] on October 28, 2003.
In a Decision dated May 20, 2004, the Sandiganbayan, Fourth Division found Villapandos
Demurrer to Evidence meritorious, as follows:
The Court found the Demurrer to Evidence impressed with merit.
Article 244 of the Revised Penal Code provides:
Article 244. Unlawful appointments.-Any public officer who shall knowingly
nominate or appoint to any public office any person lacking the legal
qualifications therefor, shall suffer the penalty of arresto mayor and a fine not
exceeding 1,000 pesos. (underscoring supplied)
A dissection of the above-cited provision [yields] the following elements, to wit:
1. the offender was a public officer;
2. accused nominated or appointed a person to a public office;
3. such person did not have the legal qualifications [therefor;] and,
43
4. the offender knew that his nominee or appointee did not have the legal
qualifications at the time he made the nomination or appointment.
Afore-cited elements are hereunder discussed.
1. Mayor Villapando was the duly elected Municipal Mayor of San
Vicente, Palawan when the alleged crime was committed.
2. Accused appointed Orlando Tiape as Municipal Administrator of the
Municipality of San Vicente, Palawan.
3. There appears to be a dispute. This Court is now called upon to
determine whether Orlando Tiape, at the time of [his] designation as
Municipal Administrator, was lacking in legal qualification. Stated
differently, does legal qualification contemplate the one (1) year
prohibition on appointment as provided for in Sec. 6, Art. IX-B of the
Constitution and Sec. 94 (b) of the Local Government Code,
mandating that a candidate who lost in any election shall not, within
one year after such election, be appointed to any office in the
Government?
The Court answers in the negative.
In ascertaining the legal qualifications of a particular
appointee to a public office, there must be a law providing for
the qualifications of a person to be nominated or appointed
therein. To illuminate further, Justice Rodolfo Palattao
succinctly discussed in his book that the qualification of a
public officer to hold a particular position in the government is
provided for by law, which may refer to educational
attainment, civil service eligibility or experience:
As the title suggests, the offender in this article is a
public officer who nominates or appoints a person to a
public office. The person nominated or appointed is not
qualified and his lack of qualification is known to the
party making the nomination or appointment. The
qualification of a public officer to hold a particular
position in the government is provided by law. The
purpose of the law is to ensure that the person
appointed is competent to perform the duties of the
office, thereby promoting efficiency in rendering public
service.
The qualification to hold public office may refer to
educational attainment, civil service eligibility or
experience. For instance, for one to be appointed as
judge, he must be a lawyer. So if the Judicial and Bar
Council nominates a person for appointment as judge
knowing him to be not a member of the Philippine Bar,
such act constitutes a violation of the law under
consideration.
In this case, Orlando Tiape was allegedly appointed to the
position of Municipal Administrator. As such, the law that
provides for the legal qualification for the position of municipal
administrator is Section 480, Article X of the Local
Government Code, to wit:
Section 480. Qualifications, Terms, Powers and
Duties.-(a) No person shall be appointed administrator
unless he is a citizen of the Philippines, a resident of
the local government unit concerned, of good moral
character, a holder of a college degree preferably in
public administration, law, or any other related course
from a recognized college or university, and a first
grade civil service eligible or its equivalent. He must
have acquired experience in management and
administration work for at least five (5) years in the case
of the provincial or city administrator, and three (3)
years in the case of the municipal administrator.
xxx xxx xxx.
It is noteworthy to mention that the prosecution did not allege
much less prove that Mayor Villapandos appointee, Orlando
Tiape, lacked any of the qualifications imposed by law on the
position of Municipal Administrator. Prosecutions argument
rested on the assertion that since Tiape lost in the May 11,
1998 election, he necessarily lacked the required legal
qualifications.
It bears stressing that temporary prohibition is not
synonymous with absence or lack of legal qualification. A

person who possessed the required legal qualifications for a
position may be temporarily disqualified for appointment to a
public position by reason of the one year prohibition imposed
on losing candidates. Upon the other hand, one may not be
temporarily disqualified for appointment, but could not be
appointed as he lacked any or all of the required legal
qualifications imposed by law.
4. Anent the last element, this Court deems it unnecessary to
discuss the same.
WHEREFORE, finding the Demurrer to Evidence filed
by Mayor Villapando with merit, the same is
hereby GRANTED. Mayor Villapando is
hereby ACQUITTED of the crime charged.
SO ORDERED.[13]
Thus, this petition by the Office of the Ombudsman, through the Office of the Special
Prosecutor, representing the People of the Philippines.
Villapando was required by this Court to file his comment to the petition. Despite several
notices, however, he failed to do so and in a Resolution [14] dated June 7, 2006, this Court
informed him that he is deemed to have waived the filing of his comment and the case shall Villapandos contention and the Sandiganbayan, Fourth Divisions interpretation of the term
be resolved on the basis of the pleadings submitted by the petitioner.
Petitioner raises the following issues:
I.
44
SECTION 94. Appointment of Elective and Appointive Local Officials;
Candidates Who Lost in Election. (a) No elective or appointive local
official shall be eligible for appointment or designation in any capacity to
any public office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position,
no elective or appointive local official shall hold any other office or
employment in the government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.
(b) Except for losing candidates in barangay elections, no candidate who
lost in any election shall, within one (1) year after such election, be
appointed to any office in the government or any government-owned or
controlled corporations or in any of their subsidiaries.
Section 6, Article IX-B of the 1987 Constitution states:
Section 6. No candidate who has lost in any election shall, within one year
after such election, be appointed to any office in the Government or any
Government-owned or controlled corporations or in any of their
subsidiaries.
legal disqualification lack cogency. Article 244 of the Revised Penal Code cannot be
circumscribed lexically. Legal disqualification cannot be read as excluding temporary
disqualification in order to exempt therefrom the legal prohibitions under Section 6, Article IX
of the 1987 Constitution and Section 94(b) of the Local Government Code of 1991.

WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE Although this Court held in the case of People v. Sandiganbayan[16] that once a court grants
OF DISCRETION AMOUNTING TO LACK OF OR EXCESS OF the demurrer to evidence, such order amounts to an acquittal and any further prosecution of
JURISDICTION IN INTERPRETING THAT THE LEGAL the accused would violate the constitutional proscription on double jeopardy, this Court held
DISQUALIFICATION IN ARTICLE 244 OF THE REVISED PENAL CODE in the same case that such ruling on the matter shall not be disturbed in the absence of a
DOES NOT INCLUDE THE ONE YEAR PROHIBITION IMPOSED ON grave abuse of discretion.
LOSING CANDIDATES AS ENUNCIATED IN THE CONSTITUTION & Grave abuse of discretion defies exact definition, but it generally refers to capricious or
THE LOCAL GOVERNMENT CODE. whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of
II. discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where
WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE the power is exercised in an arbitrary and despotic manner by reason of passion and
OF DISCRETION AMOUNTING TO LACK OF OR EXCESS OF hostility.[17]
JURISDICTION IN GIVING DUE COURSE TO, & EVENTUALLY
GRANTING, THE DEMURRER TO EVIDENCE.[15] In this case, the Sandiganbayan, Fourth Division, in disregarding basic rules of statutory
construction, acted with grave abuse of discretion. Its interpretation of the term legal
Simply, the issue is whether or not the Sandiganbayan, Fourth Division, acted with grave disqualification in Article 244 of the Revised Penal Code defies legal cogency. Legal
abuse of discretion amounting to lack or excess of jurisdiction. disqualification cannot be read as excluding temporary disqualification in order to exempt
therefrom the legal prohibitions under the 1987 Constitution and the Local Government Code
Petitioner argues that the Sandiganbayan, Fourth Division acted with grave abuse of of 1991. We reiterate the legal maxim ubi lex non distinguit nec nos distinguere debemus.
discretion amounting to lack or excess of jurisdiction because its interpretation of Article 244 Basic is the rule in statutory construction that where the law does not distinguish, the courts
of the Revised Penal Code does not complement the provision on the one-year prohibition should not distinguish. There should be no distinction in the application of a law where none
found in the 1987 Constitution and the Local Government Code, particularly Section 6, Article is indicated.
IX of the 1987 Constitution which states no candidate who has lost in any election shall,
within one year after such election, be appointed to any office in the government or any Further, the Sandiganbayan, Fourth Division denied Villapandos Motion for Leave to File
government-owned or controlled corporation or in any of their subsidiaries. Section 94(b) of Demurrer to Evidence yet accommodated Villapando by giving him five days within which to
the Local Government Code of 1991, for its part, states that except for losing candidates in inform it in writing whether he will submit his demurrer to evidence for resolution without
barangay elections, no candidate who lost in any election shall, within one year after such leave of court.
election, be appointed to any office in the government or any government-owned or
controlled corporation or in any of their subsidiaries. Petitioner argues that the court erred Notably, a judgment rendered with grave abuse of discretion or without due process is void,
when it ruled that temporary prohibition is not synonymous with the absence of lack of legal does not exist in legal contemplation and, thus, cannot be the source of an acquittal.[18]
qualification. The Sandiganbayan, Fourth Division having acted with grave abuse of discretion in
The Sandiganbayan, Fourth Division held that the qualifications for a position are provided by disregarding the basic rules of statutory construction resulting in its decision granting
law and that it may well be that one who possesses the required legal qualification for a Villapandos Demurrer to Evidence and acquitting the latter, we can do no less but declare its
position may be temporarily disqualified for appointment to a public position by reason of the decision null and void.
one-year prohibition imposed on losing candidates. However, there is no violation of Article WHEREFORE, the petition is GRANTED. The Decision dated May 20, 2004 of the
244 of the Revised Penal Code should a person suffering from temporary disqualification be Sandiganbayan, Fourth Division, in Criminal Case No. 27465, granting private respondent
appointed so long as the appointee possesses all the qualifications stated in the law. Alejandro A. Villapandos Demurrer to Evidence and acquitting him of the crime of unlawful
There is no basis in law or jurisprudence for this interpretation. On the contrary, legal appointment under Article 244 of the Revised Penal Code is hereby declared NULL and
disqualification in Article 244 of the Revised Penal Code simply means disqualification under VOID. Let the records of this case be remanded to the Sandiganbayan, Fourth Division, for
the law. Clearly, Section 6, Article IX of the 1987 Constitution and Section 94(b) of the Local further proceedings.
Government Code of 1991 prohibits losing candidates within one year after such election to SO ORDERED.
be appointed to any office in the government or any government-owned or controlled
corporations or in any of their subsidiaries.
Article 244 of the Revised Penal Code states:
Art. 244. Unlawful appointments. Any public officer who shall knowingly
nominate or appoint to any public office any person lacking the legal
qualifications therefore, shall suffer the penalty of arresto mayor and a fine
not exceeding 1,000 pesos.
Section 94 of the Local Government Code provides:

GR NO. 169425, March 04, 2008
ROBERTO LICYAYO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CHICO-NAZARIO, J.:
In this Petition for Review on Certiorari under Rule 45 of the Rules of Court, [1] petitioner
Roberto Licyayo prays for the reversal of the Decision dated 6 May 2005[2] and Resolution
dated 12 August 2005[3] of the Court of Appeals in CA-G.R. CR No. 27359, affirming with
modification the Decision[4] dated 20 February 2003 of the Regional Trial Court (RTC) of
Lagawe, Ifugao, Branch 14, in Criminal Cases No. 819 and 820, convicting petitioner of
Homicide under Article 249 of the Revised Penal Code in Criminal Case No. 819 while
dismissing Criminal Case No. 820 for Direct Assault as regards him.[5]
The factual antecedents are as follows:
On 1 February 1993, an Information in Criminal Case No. 8a was filed before the RTC hand of Oliver. The storeowner signalled petitioners group to pay its bills and leave.
[6]
45
The prosecution also presented documentary and object evidence to bolster the testimonies
of its witnesses, to wit: (1) sworn statements of Officer Danglay, Officer Buyayo, Officer
Baguilat, Jeffrey, Jimmy, Jose and Arsenio;[17] (2) death certificate of Rufino;[18] (3)
certification from the Ifugao General Hospital stating that Rufino sustained several stab
wounds which directly caused his death;[19] and (4) the knife used by the petitioner in
stabbing Rufino.[20]
For its part, the defense proffered the testimonies of petitioner and his corroborating
witnesses Daniel Cayong (Daniel), Aron, and Paul to refute the foregoing accusations.
Their version of the incident is as follows:
On the morning of 16 February 1992, petitioner attended a wedding at Mabbalat, Kiangan,
Ifugao. After the wedding, petitioner met Paul and they proceeded to the Kiangan Public
Market where they chanced on Oliver, a certain Kimayong and Fernando who invited them
for a drink in one of the stores near the market. Later, Rufino, Jeffrey and Joel entered the
store where petitioners group was drinking and occupied a separate table. Jeffrey and Joel
approached petitioners group and sat at their table. Jeffrey shook and pressed hard the

charging petitioner, his brother Aron Licyayo (Aron), Paul Baguilat (Paul) and Oliver Buyayo Petitioner brought out his wallet to pay their bills but Jeffrey, who was still holding and
(Oliver) with Homicide under Article 249 of the Revised Penal Code quoted as follows: pressing Olivers hand, told him to buy another bottle. Petitioner pleaded with Jeffrey to let go
The undersigned Provincial Prosecutor, hereby accuses ROBERTO LICYAYO, OLIVER of Olivers hand because the latter is his friend. Jeffrey, however, warned him not to interfere
BUYAYO, ARON LICYAYO, and PAUL BAGUILAT, of the crime of HOMICIDE and if he did not want to get involved. Petitioner glanced at the stores door and saw Rufino
committed as follows: standing therein. Thereafter, Jimmy passed by in front of the store and made a signal to
Rufino, Jeffrey and Joel. Petitioner, Paul and Oliver paid their bills, left the store and
That on or about the 16th day of February, 1992, in the Municipality of Kiangan, Ifugao, proceeded to Sakai Store.[21]
and within the jurisdiction of this Honorable Court, the above-named accused conspiring,
confederating and mutually helping one another and with intent to kill, DID then and there Subsequently, Jeffrey and a companion went to Famorcas Store and saw Aron and Daniel
willfully, unlawfully and feloniously attack, assault one Rufino Guay, stabbing him with seated in one of the benches outside the store. Jeffrey then told his companion Can you
the use of a double bladed weapon, thereby inflicting upon the victim several stab tackle his brother? Sensing that he was the brother being referred to by Jeffrey and a trouble
wounds which directly caused his death. might occur, Aron went inside the store but Jeffrey followed him. Thus, Aron went outside the
store and sat on one of the benches nearby. Afterwards, Rufino arrived at the store and
On 11 May 1993, an Amended Information in Criminal Case No. 820 was filed before the approached Aron. Rufino held the collar of Arons shirt and punched the latter on the left
[7]

RTC accusing petitioner of Direct Assault under Article 148 of the Revised Penal Code, viz: cheek. Jeffrey also approached Aron and grabbed the latters arm. Aron fought back but he
fell to the ground.[22]
That on or about the 16th of February 1992, in the Municipality of Kiangan, Ifugao, and
within the jurisdiction of this Honorable Court, the above-named accused, DID then and Daniel immediately proceeded to Sakai Store and told petitioner that Aron was being mauled.
there willfully, unlawfully and feloniously attack and assault PO3 Miguel Buyayo with the Petitioner went to the scene and saw Rufino and Jeffrey punching Aron who was sprawled
use of a bladed weapon while the victim was in the performance of his official duties as a on the ground. Petitioner pushed Jeffrey away but the latters other companions suddenly
policeman which fact was known to the accused. arrived and started hitting him. Petitioner fought back but he was overpowered. Petitioner
cannot recall anymore the subsequent events that transpired.[23]
Subsequently, these cases were consolidated for joint trial. In Criminal Case No. 819,
petitioner, Aron and Paul pleaded Not Guilty to the charge of homicide, [8] while the other After trial, the RTC rendered a Decision dated 20 February 2003, finding petitioner guilty of
accused, Oliver, was not arraigned.[9] With respect to Criminal Case No. 820, petitioner was homicide in Criminal Case No. 819. It acquitted Aron and Paul because the prosecution
not arraigned.[10] Thereafter, trial on the merits ensued. failed to prove the existence of conspiracy. It did not rule on the liability of Oliver because he
was not arraigned in the said case. Further, it dismissed Criminal Case No. 820 for direct
The prosecution presented as witnesses three members of the Philippine National Police assault because petitioner was not arraigned therein.[24]
(PNP), Kiangan, Ifugao, namely, Joseph Danglay (Officer Danglay), Miguel Buyayo (Officer
Buyayo) and Alfonso Baguilat (Officer Baguilat); and three other persons namely, Jeffrey The dispositive portion of the decision in Criminal Case No. 819 reads:
Malingan (Jeffrey), Jimmy Guay (Jimmy), and Jose Guay (Jose). Their testimonies, woven
together, bear the following: WHEREFORE, premises considered, accused Roberto Licyayo is hereby found GUILTY
beyond reasonable doubt of the crime of Homicide under Article 249 of the Revised
On 16 February 1992, victim Rufino Guay (Rufino), along with his friends, Jeffrey and a Penal Code. Applying the provisions of the Indeterminate Sentence Law and there being
certain Joel Dumangeng (Joel) attended a wedding at Mabbalat, Kiangan, Ifugao. Petitioner, no aggravating circumstances, he is hereby sentenced to suffer the penalty of 8 years of
together with his friends, Paul and Oliver, were also present at the same wedding. After the prision mayor as minimum to 15 years of reclusion temporal medium as maximum.
wedding reception, Rufino, Jeffrey and Joel went to Natamas Store at the Kiangan Public
Market and ordered two bottles of gin. While the three were drinking gin at the said store, Further, accused is hereby ordered to pay the victims heirs the amount of P50,000.00 as
petitioner, Paul and Oliver arrived and likewise ordered bottles of gin. Later, petitioner, Paul civil indemnity for the death of Rufino Guay. Per prevailing jurisprudence, death
and Oliver left the store. Subsequently, Rufino, Jeffrey and Joel likewise adjourned their indemnity is fixed in the sum of P50,000.00. This kind of civil indemnity is separate and
drinking session and left the store.[11] distinct from other forms of indemnity for damages and is automatically awarded without
need of further proof other than the fact of death and that the accused is responsible
Rufino, Jeffrey and Joel dropped by at Famorcas Store. Petitioner and his brother, Aron, as therefore. (People v. Julius Kinok, G.R. No. 104629, November 13, 2001; Case Digest
well as Paul and Oliver, were also present therein. While Jeffrey was talking to the stores of Supreme Court Decisions; vol. 53, No. 2).
owner, Larry Famorca (Larry), a brawl suddenly occurred between Rufino and Aron. As a
consequence thereof, Rufino fell to the ground. Aron thereafter placed himself on top of Likewise, accused is ordered to pay the victims heirs another P50,000.00 as moral
Rufino and punched the latter several times. Jeffrey approached the two and tried to pacify damages. This award is mandatory and does not require proof other than the death of
them. Paul entered the scene and punched Jeffrey on the head. Thereupon, a scuffle the victim. (People v. Mariano Pascua, Jr., G.R. No. 130963, November 27, 2001; Case
followed.[12] Digest of Supreme Court Decisions; vol. 53, No. 2).

Officers Danglay, Buyayo and Baguilat were on their way home from the Kiangan Police But the Court cannot award actual damages as testified to by the victims father, Jose
Station when they heard some individuals calling for police assistance regarding the Guay, in the amount of P12,000.00 since the same were not covered by receipts. The
commotion. The three officers rushed to the scene. Upon arriving thereat, they saw petitioner same goes true with the alleged annual income of the deceased in the amount of
holding a six-inch double-bladed knife and walking towards Rufino and Aron who were then P30,000.00. Well-entrenched is the doctrine that actual, compensatory and
wrestling with each other. Officer Buyayo, then wearing only civilian clothes and unarmed, consequential damages must be proved, and cannot be presumed. (Ibid.).[25]
approached petitioner and held the latters back collar to prevent him from joining the fray. Petitioner appealed to the Court of Appeals. On 6 May 2005, the appellate court promulgated
Petitioner turned around, faced Officer Buyayo, and tried to stab the latter but he missed. its Decision affirming with modifications the RTC decision. In addition to the civil indemnity
Officer Buyayo retreated. The officers introduced themselves to petitioner as policemen and and moral damages awarded by the RTC, the appellate court also ordered petitioner to pay
pleaded with him to put down the knife. Petitioner ignored the officers pleas.[13] for the loss of earning capacity of Rufino in the amount of P580,050.00 and temperate
Afterwards, petitioner approached Rufino, who was then wrestling with Paul, and stabbed damages in the amount of P25,000.00. Thus:
Rufino in different parts of the body.[14] Officer Baguilat fired a warning shot while Officer WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court, Branch
Danglay immediately pounced on petitioner and disarmed the latter.[15] Petitioner was brought 14 of Lagawe, Ifugao in Criminal Cases Nos. 819 and 820 is hereby AFFIRMED with
to the Kiangan Police Station while Rufino was taken to a nearby hospital where he later died
due to stab wounds.[16]
 46
MODIFICATION as to the award of damages, in that accused- appellant is also ordered them; that such is a mere custom or practice among Filipinos; and that his intoxication is not
to pay the victims heirs the following: habitual.[34]
(a) the amount of P25,000.00 as temperate damages; and Under paragraph 4, Article 13 of the Revised Penal Code, a criminal liability may be
mitigated if there was sufficient provocation on the part of the offended party which
(b) the amount of P580,050.00 for lost earnings.[26] immediately preceded the act complained of. To avail oneself of this mitigating circumstance,
Petitioner filed a Motion for Reconsideration which the appellate court denied. Hence, it must be duly proven that the alleged provocation originated from the offended party.
[35]

petitioner elevated the instant case before us on the following grounds: The records do not sufficiently establish who between Rufino and Aron started the brawl
I. which resulted in the stabbing of Rufino by petitioner. What is evident is that Rufino and Aron
THE INFORMATION FILED IS NOT SUFFICIENT AS IT DID NOT SPECIFICALLY suddenly and unexpectedly grappled during the incident.[36] As aptly observed by the RTC:
CHARGED PETITIONER FOR THE CRIME OF HOMICIDE DEFINED & PENALIZED From the facts of the case earlier discussed, the fight between Rufino Guay and Aron
UNDER ARTICLE 249 OF THE REVISED PENAL CODE; HENCE, PETITIONER Licyayo was so sudden. In his defense, Aron Licyayo in his direct examination testified
COULD NOT BE VALIDLY CONVICTED FOR SAID CRIME. though self-serving, that it was victim Rufino Guay who punched him first and so he
II. fought back.
GRANTING THAT THE INFORMATION IS SUFFICIENT, PETITIONER IS ENTITLED Nevertheless, this claim of unlawful aggression is belied during his cross-examination:
TO THE MITIGATING CIRCUMSTANCES OF SUFFICIENT PROVOCATION &
INTOXICATION. [27]
Anent the first issue, petitioner points out that the Information does not specifically mention Q. You claim, Mr.Witness, that on February 16, 1992, you did not know the late
the law which he allegedly violated and for which he was charged. Although the information Rufino Guay?
accuses him of the crime of homicide, it does not categorically state that he is being charged
with homicide, as defined and penalized under Article 249 of the Revised Penal Code.
According to him, the information should have been more explicit by stating that he is being
indicted for homicide as defined and penalized under Article 249 of the Revised Penal Code.
He argues that the specification in the information of the law violated is necessary to enable A. Yes, Sir.
him to adequately prepare for his defense, and that to convict him under such defective
information would violate his constitutional and statutory right to be informed of the nature
and cause of the accusation against him.[28]
Q. You therefore cannot imagine why he should assault you since you did not
Section 6, Rule 110 of the Revised Rules of Criminal Procedure provides that an information know each other?
is sufficient if it states the name of the accused; the designation of the offense given by the
statute; the acts or omissions complained of as constituting the offense; the name of the
offended party; the approximate date of the commission of the offense; and the place where
the offense was committed. A. None.
With particular reference to the designation of the offense, Section 8, Rule 110 of the
Revised Rules of Criminal Procedure merely directs that the information must state the
designation of the offense given by the statute, aver the acts or omissions constituting the
offense, and specify its qualifying and aggravating circumstances. Q. You never had any misunderstanding or altercation prior to February 16,
1992?
The information in the instant case contains the foregoing required statements. The
information mentions the name of petitioner as the accused, the name of Rufino as the
offended party, the date and place of the commission of the crime, and designates the crime
committed by petitioner as homicide. It also alleges the act of petitioner constituting homicide
which is the unlawful stabbing of Rufino with the use of a bladed weapon.[29] A. None.
The fact that the information does not specifically mention Article 249 of the Revised Penal
Code as the law which defines and penalizes homicide, does not make it defective. There is
nothing in the afore-quoted Rules which specifically requires that the information must state
the particular law under which the accused is charged in order for it to be considered Q. And all of a sudden, in the afternoon of February 16, 1992 you fought each
sufficient and valid. What the Rules merely require, among other things, is that the other and you being bigger than Rufino Guay, you are on top of him, is that
information must designate the offense charged and aver the acts constituting it, which in this right?
case, were obviously done. People v. Gatchalian[30] categorically stated that there is no law
which requires that in order that an accused may be convicted, the specific provision which
penalizes the act charged be mentioned in the information.
Besides, it should be stressed that the character of the crime is determined neither by the A. Yes, sir.
caption or preamble of the information nor by the specification of the provision of law alleged
to have been violated, they being conclusions of law, but by the recital of the ultimate facts
and circumstances in the information. [31] The sufficiency of an information is not negated by
an incomplete or defective designation of the crime in the caption or other parts of the Q. And you delivered several blows when you were on top of him?
information but by the narration of facts and circumstances which adequately depicts a crime
and sufficiently apprises the accused of the nature and cause of the accusation against
him.[32]
Although the information herein does not specifically mention Article 249 of the Revised
Penal Code as the law which defines and penalizes homicide, it, nonetheless, narrates that A. No because they were already many and they held me.
petitioner stabbed Rufino with a bladed weapon during the incident which caused the latters
death. The foregoing allegation unmistakably refers to homicide under Article 249 of the
Revised Penal Code which is the unlawful killing of any person without any attendant
circumstance that will qualify it as murder, parricide or infanticide. Q. How many blows did you deliver when you were on top of him before the
others came?
Apropos the second issue, petitioner alleges that Rufino started the scuffle by punching Aron
on the left cheek; that by such act, Rufino had given him sufficient provocation; and that it
was the pitiful sight of Aron lying on the ground and being beaten by Rufino and Jeffrey
which caused him to stab Rufino.[33] Petitioner further claims that he was intoxicated during
the incident; that this fact was affirmed by Officers Danglay and Baguilat in their court A. I do not know how many.
testimonies; that his intoxication was not subsequent to any plan to commit a felony because
the encounter between him and Rufino was merely accidental and there was no previous
agreement to harm Rufino; that prior to the incident, he met old friends and had a drink with
 47
Q. Was it more than ten? Homicide is punishable by reclusion temporal.[46] There being no mitigating or aggravating
circumstance proven in the case at bar, the penalty should be applied in its medium period of
14 years, 8 months and 1 day to 17 years and 4 months.[47] Applying the Indeterminate
Sentence Law, the maximum penalty will be selected from the above range, with the
A. No. minimum penalty being selected from the range of the penalty one degree lower
than reclusion temporal, which is prision mayor (six years and one day to 12 years). We
found the indeterminate sentence of eight years of prision mayor as minimum, to 15 years
of reclusion temporal as maximum, imposed by the RTC, and affirmed by the Court of
Appeals, sufficient.
Q. Was it more than fifteen?
The Court of Appeals correctly awarded civil indemnity in the amount of P50,000.00 and
moral damages amounting to P50,000.00 in line with prevailing jurisprudence.[48]
As to actual damages, Jose testified that his family incurred expenses for the hospitalization
A. I do not know. and funeral of Rufino.[49] However, since no documentary evidence was proffered to support
this claim, it cannot be awarded.[50] Nonetheless, the award of P25,000.00 in temperate
damages in homicide or murder cases is proper when no evidence of the said expenses is
presented in the trial court.[51] Under Article 2224 of the Civil Code,[52] temperate damages
Q. Why do you not know, Mr. Witness, were you drunk at that time? may be recovered as it cannot be denied that the heirs of the victim suffered pecuniary loss
although the exact amount was not proved.[53] Thus, the award of temperate damages in the
amount of P25,000.00 by the Court of Appeals is in order.
We also agree with the Court of Appeals that the heirs of Rufino should be indemnified for
loss of earning capacity pursuant to Article 2206 of the New Civil Code[54] in the amount of
A. No, I was not. (TSN, pp. 82-83, Crim. Case No. 820). P580,050.00. In accordance with current jurisprudence,[55] the formula for the indemnification
for loss of earning capacity is:
Granting arguendo that there was unlawful aggression on the part of the victim, it is
obvious that immediately he became the underdog, literally even. He was easily Net = Life Expectancy x Gross Annual Income
overpowered by the bigger and sober Aron Licyayo, who unfortunately, does not know Earning Capacity (GAI)
how to count. With this development, the situation changed. The aggressor became the Living
attacked and the attacked, the aggressor. Expenses
But even from the testimonies of both the prosecution and the defense witnesses,
the former (prosecution) prevailed in convincing this Court that unlawful
aggression was not started by any of the protagonists but that a sudden fight was
started by Rufino Guay and accused Aron Licyayo. This is verifiable from the = 2/3(80 age of deceased) x (GAI 50%
testimony of the fourth prosecution witness, Jeffrey Malingan. of GAI)

Defense on the other hand, tried to show that it was the victim who started the unlawful Generally, documentary evidence is necessary for the purpose of proving the victims annual
aggression through witnesses Daniel Cayong and accused Aron Licyayo. They failed income. As an exception, testimonial evidence suffices if the victim was either: (1) self-
miserably, however, to show this. Daniel Cayong, in his direct examination narrated that employed, earning less than the minimum wage under current labor laws, and judicial notice
it was not only Rufino Guay who started the trouble but rather he and his two may be taken of the fact that in the victims line of work, no documentary evidence is
companions Joel Dumangeng and Jeffrey Malingan took hold of Aron Licyayo and available; or (2) employed as a daily-wage worker earning less than the minimum wage
started punching him. The latter witness, as shown earlier, showed his bias by under current labor laws.[56]
inculpating the deceased only to contradict himself that the fight suddenly started when
Rufino falls under these exceptions. Jose testified that Rufino was earning an average
he and the deceased grappled.[37]
annual gross income of P30,000.00 from gardening and cultivating ricefields.[57] Rufino was
The rule is that the findings of the trial court, its calibration of the testimonies of the witnesses 22 years old at the time of his death.[58]
and its assessment of the probative weight thereof, as well as its conclusions anchored on
We have held that in the absence of proof as regards the victims living expenses, his net
said findings are accorded respect if not conclusive effect. This is more true if such findings
income is deemed to be 50 percent of his gross income.[59]
were affirmed by the appellate court. When the trial courts findings have been affirmed by
the appellate court, said findings are generally binding upon this Court.[38] Applying the above-stated formula, the indemnity for the loss of earning capacity of Rufino is
P580,050.00, computed as follows:
Since it was not convincingly shown that the alleged provocation originated from Rufino, the
mitigating circumstance of sufficient provocation should not be appreciated in favor of Net earning capacity = 2/3 (58) x (30,000.00 P15,000.00)
petitioner. We have held that where there is no evidence as to how the quarrel arose, the
accused is not entitled to the mitigating circumstance of sufficient provocation. [39]
= 38.67 x P15,000.00
For intoxication to be considered as a mitigating circumstance, it must be shown that the
intoxication impaired the willpower of the accused and that he did not know what he was = P580,050.00
doing or could not comprehend the wrongfulness of his acts.[40] The person pleading
intoxication must prove that he took such quantity of alcoholic beverage, prior to the WHEREFORE, the petition is hereby DENIED. The Decision dated 6 May 2005 and
commission of the crime, as would blur his reason.[41] Resolution dated 12 August 2005 of the Court of Appeals in CA-G.R. CR No. 27359 is
hereby AFFIRMED in toto. No costs.
In the case at bar, there is no plausible evidence showing that the quantity of liquor taken by
petitioner was of such quantity as to affect his mental faculties. On the contrary, the fact that SO ORDERED.
petitioner could recall the details that transpired during and after his drinking session with
friends is the best proof that he knew what he was doing during the incident. His vivid
narration that he had a confrontation with Rufino, Jeffrey and Joel during the drinking
session; that Daniel approached and told him that Aron was being mauled; that he
immediately went to the scene and saw Aron being beaten by Rufino and Jeffrey; that he
pushed Jeffrey away from Aron; that he was allegedly beaten by the companions of Jeffrey;
and that he fought back but was allegedly overpowered all point to the conclusion that
petitioner had complete control of his mind during the incident.[42]
Petitioner cannot avail himself of the mitigating circumstance of intoxication merely on the
testimonies of the prosecution witnesses that he was drunk during the incident. [43] Such
testimonies do not warrant a conclusion that the degree of petitioners intoxication had
affected his faculties.[44] There must be convincing proof of the nature and effect of his
intoxication which petitioner failed to adduce in the present case.[45]
We now go to the propriety of the sentence imposed on petitioner and the damages awarded
to the heirs of Rufino.
48

GR NO. 74433, September 14, 1987
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,
~vs~
FRANCISCO ABARCA, ACCUSED-APPELLANT.
DECISION
SARMIENTO, J.:
This is an appeal from the decision of the Regional Trial Court of Palo, Leyte, sentencing the
accused-appellant Francisco Abarca to death for the complex crime of murder with double
frustrated murder.
The case was elevated to this Court in view of the death sentence imposed. With the
approval of the new Constitution, abolishing the penalty of death and commuting all existing
death sentences to life imprisonment, we required the accused-appellant to inform us
whether or not he wished to pursue the case as an appealed case. In compliance therewith,
he filed a statement informing us that he wished to continue with the case by way of an
appeal.
The information (amended) in this case reads as follows:
xxx xxx xxx
The undersigned City Fiscal of the City of Tacloban accuses Francisco Abarca of the
crime of Murder with Double Frustrated Murder, committed as follows:
That on or about the 15th day of July, 1984, in the City of Tacloban, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent
to kill and with evident premeditation, and with treachery, armed with an unlicensed
firearm (armalite), M-16 rifle, did then and there willfully, unlawfully and feloniously attack
and shot several times KHINGSLEY PAUL KOH on the different parts of his body,
thereby inflicting upon said KHINGSLEY PAUL KOH gunshot wounds which caused his
instantaneous death and as a consequence of which also caused gunshot wounds to
LINA AMPARADO and ARNOLD AMPARADO on the different parts of their bodies
thereby inflicting gunshot wounds which otherwise would have caused the death of
said Lina Amparado and Arnold Amparado, thus performing all the acts of execution
which should have produced the crimes of murders as a consequence, but nevertheless
did not produce it by reason of causes independent of his will, that is by the timely and
able medical assistance rendered to Lina Amparado and Arnold Amparado which
prevented their death.[1]
xxx xxx xxx
On arraignment, the accused-appellant pleaded not guilty.
The Solicitor General states accurately the facts as follows:
Khingsley Paul Koh and the wife of accused Francisco Abarca, Jenny, had illicit
relationship. The illicit relationship apparently began while the accused was in Manila
reviewing for the 1983 bar examinations. His wife was left behind in their residence
in Tacloban, Leyte (PP. 45-47, 65, tsn, Sept. 24, 1984).
On July 15, 1984, the accused was in his residence in Tacloban, Leyte. On the morning
of that date he went to the bus station to go to Dolores, Eastern Samar, to fetch his
daughter. However, he was not able to catch the first trip {in the morning]. He went back
to the station in the afternoon to take the 2:00 oclock trip but the bus had engine trouble
and could not leave (pp. 5-8, tsn, Nov, 28, 1985). The accused, then, proceeded to the
residence of his father after which he went home. He arrived at his residence at the V &
G Subdivision in Tacloban City at around 6:00 oclock in the afternoon (pp. 8-9, tsn, id.).
Upon reaching home, the accused found his wife, Jenny, and Khingsley Koh in the act of
sexual intercourse. When the wife and Koh noticed the accused, the wife pushed her
paramour who got his revolver. The accused who was then peeping above the built-in
cabinet in their room jumped and ran away (pp. 9-13, tsn, id.).
The accused went to look for a firearm at Tacloban City. He went to the house of a PC
soldier, C2C Arturo Talbo, arriving there at around 6:30 p.m. He got Talbos firearm, an
M-16 rifle, and went back to his house at V & G Subdivision. He was not able to find his
wife and Koh there. He proceeded to the mahjong session as it was the hangout of the accused-appellant of murder, therefore erred.
Kingsley Koh. The accused found Koh playing mahjong. He fired at Kingsley Koh three
times with his rifle (pp. 13-19, tsn, id.).Koh was hit. Arnold and Lina Amparado who were
occupying a room adjacent to the room where Koh was playing mahjong were also hit by
the shots fired by the accused (pp. 34-49, tsn, Sept. 24, 1984). Kingsley Kho died
instantaneously of cardiorespiratory arrest due to shock and hemorrhage as a result of
multiple gunshot wounds on the head, trunk and abdomen (pp. 28-29, tsn, Sept. 24,
1984; see also exh. A): Arnold Amparado was hospitalized and operated on in the kidney
to remove a bullet (pp. 17-23 tsn, Oct. 17, 1984; see also exh. C). His
wife, Lina Amparado, was also treated in, the hospital as she was hit by bullet fragments
(p. 23, tsn. id.). Arnold Amparado who received a salary of nearly P1,000.00 a month
was not able to work for 1-1/2 months because of his wounds. He spent P15,000.00 for
medical expenses while his wife spent P1,000.00 for the same purpose (pp. 24-
25, tsn, id.).[2]
49
On March 17, 1986, the trial court rendered the appealed judgment, the dispositive portion
whereof reads as follows:
XXX XXX XXX
WHEREFORE, finding the accused, Francisco Abarca guilty beyond reasonable doubt of
the complex crime of murder with double frustrated murder as charged in the amended
information, and pursuant to Art. 63 of the Revised Penal Code which does not consider
the effect of mitigating or aggravating circumstances when the law prescribes a single
indivisible penalty in relation to Art. 48, he is hereby sentenced to death, to indemnify the
heirs of Khingsley Paul Koh in the sum of P30,000, complainant spouses Arnold
and Lina Amparado in the sum of Twenty Thousand Pesos (P20,000), without subsidiary
imprisonment in case of insolvency, and to pay the costs.
It appears from the evidence that the deceased Khingsley Paul Koh and defendants wife
had illicit relationship while he was away in Manila; that the accused had been deceived,
betrayed, disgraced and ruined by his wifes infidelity which disturbed his reasoning
faculties and deprived him of the capacity to reflect upon his acts. Considering all these
circumstances this court believes the accused Francisco Abarca is deserving of
executive clemency, not of full pardon but of a substantial if not a radical reduction or
commutation of his death sentence.
Let a copy of this decision be furnished her Excellency, the President of the Philippines,
thru the Ministry of Justice, Manila.
SO ORDERED.[3]
xxx xxx xxx
The accused-appellant assigns the following errors committed by the court a quo:
I.
IN CONVICTING THE ACCUSED FOR THE CRIME AS CHARGED INSTEAD OF
ENTERING A JUDGMENT OF CONVICTION UNDER ARTICLE 247 OF THE REVISED
PENAL CODE;
II.
IN FINDING THAT THE KILLING WAS ATTENDED BY THE QUALIFYING
CIRCUMSTANCE OF TREACHERY.[4]
The Solicitor General recommends that we apply Article 247 of the Revised Penal Code
defining death inflicted under exceptional circumstances, completed with double frustrated
murder. Article 247 reads in full:
ART. 247. Death or physical injuries inflicted under exceptional circumstances.
Any legally married person who, having surprised his spouse in the act of committing
sexual intercourse with another person, shall kill any of them or both of them in the act or
immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer
the penalty of destierro.
If he shall inflict upon them physical injuries of any other kind, he shall be exempt from
punishment.
These rules shall be applicable, under the same circumstances, to parents with respect
to their daughters under eighteen years of age, and their seducers, while the daughters
are living with their parents.
Any person who shall promote or facilitate prostitution of his wife or daughter, or shall
otherwise have consented to the infidelity of the other spouse, shall not be entitled to the
benefits of this article.
We agree with the Solicitor General that the aforequoted provision applies in the instant
case. There is no question that the accused surprised his wife and her paramour, the victim
in this case, in the act of illicit copulation, as a result of which, he went out to kill the
deceased in a fit of, passionate outburst Article 247 prescribes the following elements: (1}
that a legally married person surprises his spouse in the act of committing sexual intercourse
with another person; and (2} that he kills any of them or both of them in the act or
immediately thereafter. These elements are present in this case. The trial court, in convicting
Though quite a length of time, about one hour, had passed between the time the accused-
appellant discovered his wife having sexual intercourse with the victim, and the time the latter
was actually shot, the shooting must be understood to be the continuation of the pursuit of
the victim by the accused-appellant. The Revised Penal Code, in requiring that the accused
shall kill any of them or both of them immediately after surprising his spouse in the act of
intercourse, does not say that he should commit the killing instantly thereafter. It only
requires that the death paused be the proximate result of the outrage overwhelming the
accused after chancing upon his spouse in the basest act of infidelity. But the killing should
have been actually motivated by the same blind impulse, and must not have been influenced
by external factors. The killing must be the direct byproduct of the accuseds rage.
It must be stressed furthermore that Article 247, supra, does not define an offense.[5] In
People v. Araquel[6] we said:
 50
xxx xxx xxx WHEREFORE, the decision appealed from is hereby MODIFIED. The accused-appellant is
sentenced to four months and 21 days to six months of arresto mayor. The period within
As may readily be seen from its provisions and its place in the Code, the above-quoted which he has been in confinement shall be credited in the service of these penalties. He is
article, far from defining a felony, merely provides or grants a privilege or benefit - furthermore ordered to indemnify Arnold and Lina Amparado in the sum of P16,000.00 as
amounting practically to an exemption from an adequate punishment to a legally and for hospitalization expenses and the sum of P1,500.00 as and for
married person or parent who shall surprise his spouse or daughter in the act of Arnold Amparados loss of earning capacity. No special pronouncement as to costs.
committing sexual intercourse with another, and shall kill .any or both of them in the act
or immediately thereafter, or shall inflict upon them any serious physical injury. Thus, in. IT IS SO ORDERED.
case of death or se
rious physical injuries, considering the enormous provocation and his righteous
indignation, the accused who would otherwise be criminally liable for the crime of
homicide, parricide, murder, or serious physical injury, as the case, may be is punished
only with destierro. This penalty is mere banishment and, as held in a case, is intended
more for the protection of the accused than a punishment. (People vs. Coricor, 79 Phil.,
672.) And where physical injuries other than serious are inflicted, the offender is
exempted from punishment. In effect, therefore Article 247, or the exceptional
circumstances mentioned therein, amount to an exempting circumstance, for even where
death or serious physical injuries is inflicted, the penalty is so greatly lowered as to result
to no punishment at all. A different interpretation, i.e., that it defines and penalizes a
distinct crime, would make the exceptional circumstances which practically exempt the
accused from criminal liability integral elements of the offense, and thereby compel the
prosecuting officer to plead, and, incidentally, admit them, in the information. Such an
interpretation would be illogical if not absurd, since a mitigating and much less an
exempting circumstance cannot be an integral element of the crime charged. Only acts
or omissions constituting the offense should be pleaded in a complaint or information,
and a circumstance which mitigates criminal liability or exempts the accused therefrom,
not being an essential element of the offense charged but a matter of defense that
must be proved to the satisfaction of the court need not be pleaded. (Sec. 5, Rule 106,
Rules of Court; U.S. vs. Campo, 23 Phil., 368.)
That the article in question defines no crime is made more manifest when we consider
that its counterpart in the old Penal Code, (Article 423) was found under the General
Provisions (Chapter VIII) of Title VIII covering crimes against persons. . There can, we
think, hardly be any dispute that as part of the general provisions, it could not have
possibly provided for a distinct and separate crime.
xxx xxx xxx
We, therefore, conclude that Article 247 of the Revised Penal Code does not define and
provide for a specific crime, but grants a privilege or benefit to the accused for the killing
of another or the infliction of serious physical injuries under the circumstances therein
mentioned xxx[7]
xxx xxx xxx
Punishment, consequently, is not inflicted upon the accused. He is banished, but that is
intended for his protection.[8]
It shall likewise be noted that inflicting death under exceptional circumstances, not being a
punishable act cannot be qualified by either aggravating or mitigating or other qualifying
circumstances. We cannot accordingly appreciate treachery in this case.
The next question refers to the liability of the accused-appellant for the physical injuries
suffered by Lina Amparado and Arnold Amparado who were caught in the crossfire as the
accused-appellant shot the victim. The Solicitor General recommends a finding of double
frustrated murder against the accused-appellant, and being the more severe offense,
proposes the imposition of reclusion temporal in its maximum period pursuant to Article 48 of
the Revised Penal Code. This is where we disagree. The accused-appellant did not have the
intent to kill the Amparado couple. Although as a rule, one committing an offense is liable for
all the consequences of his act, that rule presupposes that the act done amounts
to a felony.[9]
But the case at bar requires distinctions. Here, the accused-appellant was not committing
murder when he discharged his rifle upon the deceased. Inflicting death under exceptional
circumstances is not murder. We cannot therefore hold the appellant liable for frustrated
murder for the injuries suffered by the Amparados.
This does not mean, however, that the accused-appellant is totally free from any
responsibility. Granting the fact that he was not performing an illegal, act when he fired shots
at the victim, he cannot be said to be entirely without fault. While it appears that before firing
at the deceased, he uttered warning words (an waray labot kagawas[10]), that is not enough
a precaution to absolve him for the injuries sustained by the Amparados. We nonetheless
find negligence on his part. Accordingly, we hold him liable under the first part, second
paragraph, of Article 365, that is, less serious physical injuries through simple imprudence or
negligence. (The records show that Arnold Amparado was incapacitated for one and one-half
months;[11] there is .no showing, with respect to Lina Amparado, as to the extent of her
injuries. We presume that she was placed in confinement for only ten to fourteen days based
on the medical certificate estimating her recovery period.[12])
For the separate injuries suffered by the Amparado spouses, we therefore impose upon the
accused-appellant arresto mayor (in its medium and maximum periods) in its maximum
period, arresto being the graver penalty (than destierro).[13]

GR NO. 108491, July 02, 1998
PEOPLE OF THE PHILIPPINES. PLAINTIFF-APPELLEE,
~vs~
SERGIO AMAMAMPANG, ACCUSED-APPELLANT.
DECISION
KAPUNAN, J.:
In the early morning of 8 November 1991, SPO1 Placido Flores, a member of the Philippine
National Police in Carmen, Bohol, was fatally hacked with a scythe and shot with a .38
caliber revolver in the home of appellant Sergio Amamangpang in Guadalupe, Carmen,
Bohol. On 17 January 1992, appellant was charged with the murder of Flores in an
information which read, thus:
That on or about the 8th day of November, 1991, in the municipality of Carmen, province
of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, with treachery and evident premeditation, did then and there willfully, unlawfully
and feloniously attacked, assault and strike with a scythe and then shoot with the use of
the service handgun which the accused wrested from the victim, SPO1 Placido Flores,
who was unaware of the attack, thereby inflicting mortal injuries on the vital parts of the
victims body which resulted in the death of the said SPO1 Placido Flores; to the damage
and prejudice of the heirs of the deceased in the amount to be proved during the trial.
Acts committed contrary to the provisions of Article 248 of the Revised Penal Code, as
amended.[1]
Upon the arraignment, appellant entered a plea of not guilty.
The prosecution established the following facts:
On 8 November 1991, at the police station in Carmen, Bohol, SPO1 Placido Flores sought
permission from PO3 Gregorio Alimpolos to go to the house of appellant with trustee-
prisoner Ellorde Galacio at around 1:00 a.m.. It was the birthday of appellants wife,
Sinforiana and Flores was bringing along Elorde to help roast the Amamangpangs pig that
was earlier butchered.[2]
On their way to appellants residence abroad the victims patrol jeep, Flores and Galacio
passed Manuel Noculan who was walking towards his carinderia at the public market to see
to the newly harvested palay he had deposited there. Flores stopped and asked Noculan to
Accompany them to appellant house.[3]
Upon reaching the Amamangpang residence, Flores and Galacio entered the house of
Noculan. Noculan followed and upon entering saw Flores sitting on the stairs with his head
resting on the edge of a table. Noculan seated himself outside the house while Galacio stood
beside the door. Appellant was then standing near Sinforiana who was cooking in the
kitchen.[4]
Suddenly, from inside the house, Noculan heard a child shout. Father! Dont! Noculan
immediately stood up and, peering through the door, saw appellant holding a scythe and
about to strike Flores who was still wearing his fatigue pants and a white T-shirt with PNP
emblem. Appellants daughter, Genalyn had her arms around his (appellants)
waist.[5] Shocked by what he had witnessed, Noculan ran and hid. While running, he heard
several gunshots.[6]
At the police station around 250 meters away from the Amamangpang residence, PO3
Alimpolos heard two gun shots followed by a rapid succession of four shots, alerting him and
another patrolman. Thereafter, appellant, in bloody clothes and accompanied by his
daughter, arrived at the police station and surrendered himself to Alimpolos. He admitted to
the latter that he had killed Flores but gave no reason why. Appellant surrendered a .38
Smith and Wesson revolver and empty shells.[7]
Thereafter, police officers Jovencio Ybaez, Alfredo Llongas and Magdaleno Dano were
dispatched to investigate the incident. At appellants house, they retrieved the scythe.[8]
Dr. Amalia G. Aana, municipal health officer of Carmen, Bohol, who was summoned to the saw her manimoy (godfather) Flores completely naked. She told him, maninoy, what are
crime scene, found the lifeless body of the victim lying in appellants bedroom at the second you going to do with my mother? Flores answered, Keep quiet there Genalyn because if
storey of his house.[9] Her postmortem report reveals the following findings:
Cause of Death:
A. Incised wounds multiple at the ff:
1. 6 x 4 inches at the nape; base of the neck; 7th rib, right axillary region.
2. 6 x inch mid-lateral forearm, right upper extremity
3. 5 x 1 inch at the upper lip slicing the tip of the nose.
B gunshot wounds, multiple at the ff:
1. inch right naso-maxillary bone 2 inches below the right eyeball; right parietal bone,
3 in number.
2. inch- entrance wound at the right posterior costal 7-rib, 4 inches from the spinal
column.
51
The body was supine position (sic) with stretched upward outward upper extremities. The
body from the waist up to his head was all covered with blood. The mat, floor, blanket
and clothes were soaked with blood. The underwear at his ankle pants beside the left
foot and the blanket underneath the body. The room was lighted with a small kerosene
lamp near the Sto. Nio image. The body was found 1-1/2 meters from the lamp and the
image.[10]
In support of its theory that the appellant killed Flores in a fit of jealousy, the prosecution
presented Margarita Flores (the wife of Placido Flores) who brought a certification[11] issued
by the barangay captain of Guadalupe, Carmen, Bohol, showing that a complaint had been
lodged against appellant resulting from physical injuries he had inflicted upon a certain Simon
Betonio on suspicion that Betonio and appellants wife were having an affair, but that the
parties settled the case amicably after appellant shouldered the medical expenses incurred
by Betonio.
For his part, appellant admitted killing Flores but claimed that he did it in defense of his wifes
honor. As an alternative defense, appellant contended that his action was justified under
Article 247 of the Revised Penal Code. After he caught his wife, Sinforiana and Flores
engaged in the sexual act on that fateful day. He narrated the events as follows:
In the evening of 7 November 1991, in honor of his wifes birthday the next day, appellant
butchered a pig with the assistance of Flores and Galacio. When his wife, Sinforiana and his
daughter, Genalyn arrived, the former prepared their supper. After eating, Genalyn went to
bed and rest (appellant, Flores, Gelacio and Sinforiana) drank tuba until midnight.
Subsequently, Flores prodded appellant to sleep in his (appellants) store at the public
market with Galacio o guard the store against robbers. At first, appellant refused because he
had to wake up early to roast the butchered pig. However, he changed his mind when Flores
assured him that he would wake him up at dawn when he (Flores) reported for duty.[12]
That settled, Flores, Galacio and appellant boarded the patrol jeep. After dropping off the two
men at the public market, Flores proceeded home. Appellant, however, discovered that he
left his store key at home. He tried to force open the padlock but the effort proved futile.
Resigned, he sat beside Galacio who was sleeping on the bamboo bed near the store.
Minutes later, however, appellant felt cold, so he woke up Galacio and they decided to go
home.[13]
Upon reaching appellants house, Galacio excused himself to answer the call of nature.
When appellant entered through the unfinished door at the back of his house, he heard a
noise (kasikas). He proceeded upstairs and lighted a match. To his astonishment, he saw
the half-naked Flores on top of his wife who still had her clothes on. Thereupon, appellant
unsheathed his scythe and hacked the victim on the neck. He attempted to strike a second
time but the handle of the scythe broke off. Flores was then lying face down in a crawling
position.[14] Appellant jumped on Flores back who tried to draw his gun.[15] The two grappled
for possession thereof. After wresting the gun from Flores, appellant ran downstairs. Flores
pursued him. Appellant then faced Flores and shot him on the forehead. Flores retraced his
way and fell down. Because of his anger, appellant consumed all the guns bullets on the
fallen Flores.[16]
Corroborating appellants story, his wife, Sinforiana, testified that after supper she drank a
little tuba with her husband, Flores and Galacio. At midnight, her husband followed the
advice of Flores to spend the night in their store. After her husband, Flores and Galacio left,
she went to sleep with her daughter.
Sinforiana was awakened when Flores tried to abuse her. At first, Flores held her, telling
that he wanted to borrow money. She told him that she had no money as they had just made
purchases for their store. Responding to what she said, Flores told her that he had long
developed his love foe her. She thus retorted, Pre, are you not foolish? We are close
friends, why are you doing this to me? But Flores removed his pants and briefs and
embraced her. When Sinforiana tried to resist, Flores threatened to kill her. While Flores was
on top of her, and embracing her, appellant arrived, unsheathed his scythe and hacked
Flores. Freed from his embrace, Sinforiana ran away followed by her daughter.[17]
Twelve-year-old Genalyn Amamangnpang testified that she was awakenend by a noise and
her mother saying, Pre, why are you still here when in fact you already went home? She
you will not, I will shot you. (sic) Just then, her father arrived and pulled out his scythe.
Genalyn ran outside to fetch a policeman as her father instructed. She ran towards the public
market but, not seeing any policeman, she went back home. Upon her arrival, her father told
her to go with him to surrender and, together, they proceeded to the municipal building where
the police station was located.[18]
On 8 October 1992, the RTC of Bohol, Branch 1 Tagbilaran City rendered a decision
convicting appellant of murder. The trial court ruled that appellants act of emptying the
bullets of the gun on the body of the victim, even when the latter was already helpless and
severely wounded on the nape constituted treachery. Likewise, the trial court appreciated
nighttime as a generic aggravating circumstance and imposed the penalty of reclusion
perpetua upon appellant. The dispositive portion of the decision reads, thus:
PREMISES CONSIDERED, the Court finds the accused SERGIO AMAMANGPANG
guilty of the crime of Murder punished under Article 248 of the Revised Penal Code and
hereby sentences him to suffer an imprisonment of Reclusion Perpetua, with the
accessories of law and to pay the cost.

The accused SERGIO AMAMANGPANG is further ordered to indemnify the surviving
spouse Margarita Flores and the children of the late Placido Flores in the amount of
FIFTY THOUSAND PESOS (P50,000.00) representing indemnity and THIRTY FIVE
THOUSAND PESOS (P35,000.00) representing burial expenses and in both instances
without subsidiary imprisonment in case of insolvency.
The Smith and Wesson (sic) revolver with Serial Number .335516 is ordered returned to
the government through the PNP authorities.
SO ORDERED.[19]
In this appeal, appellant raises the following issues:
STATEMENT OF ISSUES
I. WHETHER OR NOT THE KILLING IS JUSTIFIED AS AN ACT OF DEFENSE OF
HONOR.
II. WHETHER OR NOT THE KILLING HAS THE CHARACTER OF DEATH UNDER
EXCEPTIONAL CIRCUMSTANCES AS PROVIDED FOR PROVIDED FOR UNDER
ARTICLE 247 OF THE REVISED PENAL CODE OF THE PHILIPPINES.
ASSIGNMENT OF ERRORS
1. The trial court erred in finding the presence of the element of nighttime in
appreciating it as aggravating circumstance.
2. The trial court erred in finding that accused emptied the bullets of the firearm in
killing the victim who was already helpless and severely wounded in the nape.
3. The trial court erred in convicting the accused of the crime of murder and the
subsequent application of the penalty of reclusion perpetua.[20]
Before going to the main defense, we shall first resolve the preliminaries raised by appellant.
52
Appellant also questions the failure of the prosecution to present the investigators and
Galacio as witnesses.
Section 5, Rule 110 of the Rules of Court expressly provides that all criminal actions shall be
prosecuted under the direction and control of the fiscal. Under this provision, the defense
may not dictate on the prosecution the choice of the latters witnesses as it is the prerogative
of each party to determine which evidence to submit.[22]
Appellant further claims that it was Galacios role to ensure that he (appellant) would stay at
the market while Flores went back to appellants house to perpetrate his lascivious
scheme. If this was their theory, then, it should have been the defense which presented
Galacio as witness, not the prosecution.
Proceeding to his main defense, appellant invokes the justifying circumstance of defense of
relative under Article 11 (2) of the Revised Penal Code:
ART. 11. Justifying circumstance. The following do not incur any liability:
1. Anyone who acts in defense of his person or rights provided that the following
circumstances concur:
First. Unlawful aggression
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself.
2. Anyone who acts in defense of the person or rights of his spouse, ascendants,
descendants, or legitimate, natural or adopted, brothers or sisters, or of his relatives by
affinity in the same degrees, and those by consanguinity within the fourth civil degrees,
provided that the first and second requisites prescribed in the next preceding
circumstance are present, and the further requisite, in case the provocation was given by
the person attacked, that the one making defense had no part therein.

Appellant contends that the pictures taken by the investigators, depicting the victims body In cases of self-defense and defense of relatives where the accused has admitted the killing,
lying naked in the bedroom floor, were tampered with and suppressed by the prosecution. In we observe the time-honored rule that [h]aving made the admission, it is, thus incumbent
support, appellant cites the following testimony of Dr. Aana: upon the accused to proved the justifying circumstances to the satisfaction of the court in
order to be relieved of any criminal liability. In such instances, the accused must proffer
Among those policeman who came to you, do you know if any pictures were strong, clear and convincing evidence of self-defense and depend not on the infirmity of the
Q prosecution, for even if the latter was weak, the plea of self-defense cannot prosper
taken by them or any of your companions in your direction?
especially so where the accused himself has admitted the killing.[23]
A There was. In the case at bar, appellant miserably failed to hurdle this test. His claim is belied by the
physical evidence on record. First, appellants contention that he found Flores with his wife in
Q Where is the picture now? the bedroom at the second floor of the house (the place where he cleaved Flores with his
scythe) is negated by the fact that blood was found splattered on the table, the bamboo floor
I told the policeman to get a picture, the body of the victim did not appear in the and the stairs in the first floor of the house as unmistakably shown in the pictures taken by
A
picture. amateur photographer Wilberto Dag-um.[24] We find incredulous appellants explanation that
after wrestling the gun from Flores he ran downstairs with Flores in pursuit and when he
Q How many pictures were honestly taken by the policeman? turned and shot Flores on the forehead the latter was able to retrace his way to the
bedroom on the second floor of the house before falling down. It must be recalled that Flores
A One or two shots. was already severely wounded at the nape. Coupled with the gunshots wound on his
forehead, which as testified to by Dr. Aana, was enough to have caused instantaneous
When the picture was taken by the policeman, that was the time when the body death,[25] it is, therefore, inconceivable that he was still able to climb back up the stairs and
Q
of the victim was naked and lying face up/ finally collapse in the bedroom.

A Yes, sir. On the contrary, the pictures are consistent with Noculans testimony that he saw the
bloodied Flores prostrate on the ground in the first floor of the house and appellant poised to
Q You said that the picture was blurred because you were told by the policeman? strike Flores again.[26]
Second, appellants contention that he cut Flores only once with his scythe is repudiated by
I think it was Alfredo Luengas who said it was blurred. I went to the police station Dr. Aana findings that the victims body bore three (3) incised wounds: at the nape and
A
I saw the picture, it was black. upper lip.

Could it be possible that it could be a negative of another shot not necessarily the Third, Dr, Aana testified that the trajectory of the bullet wounds was downward, hence the
Q assailant must be higher in position than the victim.[27] She opined that the victim may have
shot taken at the time of the incident?
been shot while already lying prostrate on the floor.[28]
A It could be.[21] Finally, the testimony of appellants daughter that Flores was completely naked.[29] Is
materially inconsistent with the findings of Dr. Aana that Flores was wearing a shirt and was
Appellants contention hardly deserves consideration. As testified to by Dr. Aana, the picture
naked only from the waist down.[30] It also contradicts appellants own testimony that when he
taken by the investigators, unfortunately, turned out black meaning the image did not come
was being pursued by Flores, the latter was only half-naked wearing a t-short but no brief
out. Hence, there was no sense in presenting said pictures as exhibits. Nevertheless, it
and trousers.[31]
cannot be asserted with certainty that Flores body, as discovered by Dr. Aana when she
arrived at the scene of the crime, was in exactly the same position where he had actually From the foregoing. We find more credible the theory of the prosecution that Flores was
fallen and died from his wounds. The position of the body as described by Dr. Aana killed in the first floor of the house, as testified to by Noculan. His body, however, was
contradicts the testimony of prosecution witness Noculan that when his attention was roused subsequently carried upstairs to the bedroom and was stripped of his pants and underwear
by the shout of appellants daughter, he saw appellant holding a scythe and was about to to make it appear that appellant caught Flores in the act of abusing his wife.
strike Flores who was lying prostrate on the ground, fully clothed, with blood oozing from his
neck. After everybody ran and hid during the commotion, appellant was left in the house. Appellants story, as previously discussed, is full of material discrepancies. Appellant testified
Therefore had the opportunity to move the body of the victim from the ground floor to the that he caught Flores on top of his wife in their bedroom on the second floor and that he
second-storey bedroom and strip him of his lower garments to make it appear that the victim reacted by hacking Flores with his scythe. But when the scythes handle broke off, appellant
intended to have sexual intercourse with his (appellants) wife. jumped on Flores back and they grappled for possession of Flores gun. When Dr. Aana
and the investigators arrived, however, they testified that the things inside the room was
(sic) still in order, the Sto. Nio and the lamp.[32]
 53
Likewise, when Dr, Aana discovered Flores body, she found his pants by his left foot and maximum penalty. The monetary awards to the heirs of SPO1 Placido Flores imposed upon
his underwear stripped down to his ankles.[33] But how could Flores have his underwear appellant by the trial court are AFFIRMED. Costs against appellant.
around his ankles at the time his body was found when appellant specifically stated that
Flores was not wearing his trousers and brief when he chased appellants and the latter shot SO ORDERED
him. Thus, the only explanation for this is that appellant indeed altered the physical evidence
so as to make it conform to his defense. It must be pointed out that nobody reported the
crime. The police become aware of the incident only after appellant surrendered himself.
Hence, appellant had the time and opportunity to move the body, remove the pants, strip the
underwear down to the ankles and concoct the story of defending his wife from the lecherous
intentions of Flores.
The alternative defense presented by appellant is Art. 247 of the revised Penal Code which
provides:
ART. 247. Death of physical injuries inflicted under exceptional circumstances.Any
legally married person who, having surprised his spouse in the act of committing sexual
intercourse with another person, shall kill any of them or both of them in the act or
immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer
the penalty of destierro.
If he shall inflict upon them physical injuries of any other kind, he shall be exempt from
punishment.
x x x.
He asserts that his action was the result of anger and passion after discovering his wife and
his friend, Flores, engaged in sexual intercourse in his own home.
Appellants assertion is unmeritorious. His two bases for exoneration are markedly
inconsistent with each other. On one hand, he claims that he was defending his wife from
Flores who was trying to force himself upon her. On the other, he gives the implication that
his wife and Flores were having an illicit affair. Such contradictory theories are a manifest
indication that appellants defenses are nothing but mere concoctions. Besides, appellants
alternative defense is inconsistent with the testimonies of his wife (Sinforiana) and daughter
(Genalyn) that Flores threatened to kill them if they refused to accede to his wishes.[34]
The trial court, however, erred in finding that the crime was committed with treachery.
Treachery, which should be proven as clearly as the crime itself to be considered a qualifying
circumstance,[35] was not conclusively established in this case. According to prosecution
eyewitness Noculan, when he was alerted to the assault by the warning shout of appellants
daughter and he peeped inside the house, he saw the victim already prostrate on the
bamboo floor, blood oozing form his neck and about to be struck by the appellant. Since the
lone eyewitness failed to witness the initial attack inflicted upon the victim, treachery cannot
be considered a qualifying circumstance.[36]
In People v. Beltran,[37] we reiterated the rule that:
x x x. There is treachery when, in the commission of the crime, the offender employs
means, methods and forms which directly and specially insure the execution thereof
without risk to himself arising from any defense the offender party might make. The
essence of treachery is the swift and unexpected attack without the slightest provocation
by the victim. In the case at bar, the victim may have sustained twenty-two (22) stab
wounds but there is no evidence as to the manner in which the attack was made or how
the stabbing resulting in her death begun and developed. The existence of treachery
cannot be established from mere suppositions nor drawn from circumstances that
existed prior and after the filling; it must be proved by clear and convincing evidence or
as conclusively as the killing itself. Where treachery is not adequately proved, appellant
can only be convicted of homicide. (Underscoring ours.)
In the absence of treachery, appellant should be held liable only for homicide under article
249 of the revised Penal Code.
We agree with the Solicitor General that the aggravating circumstance of nighttime was not
present when the crime was committed. No evidence was adduced to indicate that nocturnity
was specially sought by appellant or taken advantage of by him to facilitate the commission
of the crime or to insure his immunity from capture.[38] The fact that the crime took place at
night was just incidental.
The mitigating circumstance of voluntary surrender should be considered in applellants favor
because of the concurrence of the following requisites: (a) the offender had not actually been
arrested; (b) the offender surrendered himself to a person in authority or to an agent of a
person in authority; and (c) the surrender was voluntary.[39]
PO3 Alimpolos distinctly testified that appellant, on his own volition, appeared at the police
station and surrendered himself shortly after he had killed Flores.[40] By the presence of this
mitigating circumstances and there being no generic aggravating circumstance, the penalty
imposable shall be the minimum period of reclusion temporal.[41] Applying the indeterminate
Sentence Law, appellant shall suffer the penalty of prision mayor, minimum as the minimum
penalty to reclusion temporal, minimum as the maximum penalty.
WHEREFORE, appellant Sergio Amamangpang is hereby found guilty beyond the
reasonable doubt of the crime of homicide for the killing of SPO1 Placido Flores and shall
suffer the indeterminate penalty of six (6) years and one (1) day of prision mayor minimum as
minimum penalty to twelve (12) years and one (1) day of reclusion temporal minimum as
54

GR NO. 132925, December 13, 2006
MARCIAL SIENES, BENITO SIENES, RICO SIENES & ROGER BANAYBANAY,
PETITIONERS,
~vs~
PEOPLE OF THE PHILIPPINES, RESPONDENT
DECISION
GARCIA, J.:
On October 15, 1981, in the then Court of First Instance (now Regional Trial Court [RTC]) of
Negros Oriental, herein petitioner Marcial Sienes, along with his three (3) sons and co-
petitioners, Benito Sienes (@ Baby Sienes), Roger Banaybanay (@ Boboy Sienes) and Rico
Sienes were charged with the crime of Murder for the death of one Felipe de la Cruz, Sr.,
allegedly committed, per the indicting Information,[1] as follows:
That on or about the 15th day of May, 1981, at Barangay Kabulacan,
Municipality of Sta. Catalina, Province of Negros Oriental, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating with each other and acting in concert, with
evident premeditation, treachery and abuse of superior strength, did then
and there willfully, unlawfully and feloniously attack, assault, hack and stab
Felipe de la Cruz, Sr. with the use of canes long bolo and jungle knife with
which said accused were then armed and provided, thereby inflicting upon
the body of said victim the following injuries, to wit:
* Stab wound, left chest, left parasternal line at the level of the 4th
intercostals space, 1.5 inch in size, penetrating. Lung tissue about 1 inch
was removed from the wound opening.
* Stab wound, sternum, 1 inch in size.
* Stab wound, Abdomen, median line, 4 inches above umbilicus.
* Stab wound, left lumbar area 2 inches in size, 3 inches deep.
* Stab wound, Postero-lateral aspect, proximal thirds, left forearm, 1.5 inch
in size, 2 inches deep.
* Hack wound, right temporo-occipital area (traversing thru the ear) 5
inches in size, inch deep.
* Contusion-Hematoma, left post-aurcular area.
which caused the death of said Felipe de la Cruz, Sr. immediately
thereafter.
Contrary to Article 248 of the Revised Penal Code.
When arraigned on October 12, 1984, at which time the case was already assigned to
Branch 21 of the RTC of Negros Oriental and thereat docketed as Criminal Case No. 4804,
all four (4) petitioners, as accused, individually entered a plea of Not Guilty.[2]
Thereafter, trial on the merits ensued.
In a decision[3] dated August 20, 1990, the trial court found all four (4) accused guilty beyond In the course of trial in the court of origin, the prosecution presented two (2) alleged
reasonable doubt of the crime of Murder as charged, and sentenced them accordingly, thus: eyewitnesses to the incident, namely Cresencio Tablo and Romulo Tubongbanua. Also
WHEREFORE, premises considered and of the fact that the prosecution
has proved the guilt of the four (4) accused beyond reasonable doubt, the
court hereby finds the accused Marcial Sienes, Benito Sienes (alias Baby
Sienes), Rico Sienes, and Roger Banaybanay (alias Boboy Sienes) guilty
of the crime of murder, as charged. The accused, Marcial Sienes is entitled Prosecution witness Cresencio Tablo testified that on May 14, 1981, during the eve of the
to the benefit of the mitigating circumstance of voluntary surrender in his barrio fiesta of Barangay Kabulukan, Sta. Catalina, Negros Oriental, he attended an evening
favor, with no aggravating circumstance to offset the same and, applying
the Indeterminate Sentence Law, he is hereby sentenced to suffer the
penalty of Fourteen (14) years, Eight (8) months and One (1) day to
Seventeen (17) years, Four (4) months. With regards to the three (3) other petitioner Marcial Sienes, who was then the barangay captain of Kabulukan, prevented the
co-accused, namely: Benito Sienes (alias Baby Seines), Rico Sienes and
Roger Banaybanay (alias Boboy Seines), there being no aggravating and
mitigating circumstance, to offset each other, and applying the
Indeterminate Sentence Law, the Court hereby sentences them to suffer
the penalty of Seventeen (17) years, Four (4) months and One (1) day to
Twenty (20) years. All the four (4) accused shall indemnify, jointly and
severally, the heirs of the deceased-victim, Felipe de la Cruz, the sum of
Thirty Thousand (P30,000.00) Pesos as jurisprudential damages, plus the sons, Benito and Rico, both using kamagong canes, took turns in striking the victim. This
actual damages/expenses suffered in the sum of Six Thousand
(P6,000.00) Pesos, representing Two Thousand (P2,000.00) Pesos for
embalming costs, One Thousand (P1,000.00) for tomb-making expenses
and Three Thousand Pesos for wake and vigil expenses, with an additional The other prosecution witness, Romulo Tubongbanua, testified that in the evening of May 14,
Five Thousand (P5,000.00) Pesos, as moral damages, and to pay the
costs of the proceedings.
SO ORDERED.
55
Unable to accept the judgment of conviction, all the four (4) accused went on appeal to the
Court of Appeals (CA) in CA-G.R. CR No. 10252. In a decision[4] dated January 31, 1996, the
CA, thru its then 12thDivision, modified the appealed decision of the trial court by ruling out
the presence of conspiracy among the four (4) accused and the attendance of treachery and
evident premeditation in the commission of the offense. Accordingly, the CA found the crime
committed to have been merely Homicide, not Murder, of which only the father, Marcial
Sienes, was sentenced as principal while his three (3) sons were adjudged as mere
accomplices. More specifically, the CA decision dispositively reads:
WHEREFORE, the Decision of the trial court convicting accused-appellant
[petitioners] Marcial Sienes, Benito Sienes, Rico Sienes and Roger
Banaybanay is hereby MODIFIED. Appellant Marcial Sienes is hereby
convicted of HOMICIDE, and taking into account the mitigating
circumstance of voluntary surrender, is hereby sentenced to suffer the
penalty of imprisonment from eight (8) years and one (1) day of prision
mayor medium as minimum, to twelve (12) years and one (1) day
of reclusion temporal minimum as maximum. The indemnity for the death
of the victim, Felipe de la Cruz, Sr., is hereby increased to P50,000.00 in
accordance with recent Jurisprudence.
On their part, appellants Benito Sienes, Rico Sienes and Roger
Banaybanay are hereby convicted as accomplices to the crime of
homicide, and are hereby sentenced each to suffer the penalty of four (4)
years and two (2) months of prision correccional maximum as minimum to
eight (8) years and one (1) day of prision mayor medium as maximum.
In all other respects, the Decision stands. Costs de officio.
SO ORDERED.
With their motion for reconsideration having been denied by the CA in its Resolution [5] of
February 10, 1998, father and sons are now with this Court via this petition for review on
certiorari under Rule 45 of the Rules of Court, claiming that the CA erred
1. XXX IN DECLARING ACCUSED RICO SIENES, BENITO
SIENES & ROGER BANAYBANAY AS ACCOMPLICES,
CONTRARY TO ART. 18 OF THE RPC;
2. XXX IN NOT CONSIDERING THE TESTIMONY OF THE
OTHER PROSECUTION WITNESS ROMULO
TUBONGBANUA WHICH MATERIALLY CONTRADICTED
THE TESTIMONY OF CRESENCIO TABLO, AS CREATING
DOUBT AS TO THE GUILT OF THE ACCUSED CONTRARY
TO LAW THAT IN CASE OF DOUBT IT SHOULD BE
RESOLVED IN FAVOR OF THE ACCUSED, & CONTRARY
TO THE EVIDENCE ON RECORD;
3. XXX IN NOT CONSIDERING AS MITIGATING
CIRCUMSTANCE THE DEFENSE OF THE BARANGAY
CAPTAIN, FOR THE VICTIM WAS IN THE ACT OF
ASSAULTING A PERSON IN AUTHORITY.
We DENY.
presented were Dr. Renato Moleta, acting Municipal Health Officer of Sta. Catalina, Negros
Oriental, and Rizalina de la Cruz, wife of the victim. For its part, the defense presented all the
four (4) accused themselves, and one Tiburcio Jamin, a member of the Integrated Police of
Sta. Catalina, Negros Oriental.
dance party at the Primary School of Kabulukan. While the dance party was go
ing on, the victim, Felipe de la Cruz, Sr. got hold of the microphone and announced a special
dance number for some persons. The special dance number did not push through because
music from being played and said over the microphone that the announcement made by the
victim, who incidentally was his kumpadre, is foolish, then punched the victim on the face.
Instead of retaliating, the victim just uttered, Pare, why do we have to quarrel this? Again,
Marcial threw another punch at the victim. Thereupon, Marcials son, Benito Sienes (@
Baby), struck the victim with a kamagong cane, hitting the latter on the forehead which
caused him to feel dizzy and to fall down. With the victim already down, Marcial, using a
hunting knife, his other son Roger Sienes (@ Boboy), using a pinuti, and his two (2) other
witness further testified that the father Marcial Sienes stabbed the victim thrice while both
Benito and Roger stabbed him once, using the weapon called pinuti.
1981, he likewise attended the barangay dance party at the Primary School of Kabulukan,
Sta. Catalina, Negros Oriental. While the dancing was going on, some young people were
making trouble but Marcial Sienes, who was then the Barangay Captain, was able to
maintain peace and order. According to this witness, he observed that Marcial and his three
 56
(3) sons, namely, Benito, Rico and Roger, were all armed at that time. At around one oclock Moreover, the nature, location and number of stab wounds sustained by the victim also belie
past midnight, the victim announced over the microphone a special dance number, but the and negate Marcials pretense of self-defense. It bears repeating that the nature and number
music was stopped and few minutes later, he heard people shouting as fight erupted. Turning of wounds inflicted on the victim are constantly and unremittingly considered as
his head to the direction of the noise, he saw the victim hugging Marcial while the latters important indicia which disprove a plea for self-defense, demonstrative as they are of a
sons Benito, Roger, and Rico were attacking the victim. When he went nearer, he saw determined effort to kill the victim and not just to defend oneself.[9] Here, the victims wounds,
Benito, who was behind the victim, hitting the latter with a cane or bartolina, while Roger, seven (7) in all, most of which were inflicted on vital parts of the victims body, are telltale
who was at the left side of the victim, holding a bartolina. He did not see Rico very clearly. signs of Marcials determination to finish off the victim. Thus, absent an offensive attack on
Both Benito and Roger struck the victim once. It was after the two (Benito and Roger) struck the part of the victim, Marcials plea of self-defense must simply fail.
the victim that he (witness) was able to reach for them and when he got hold of Benitos
hand, he told the latter, No, Be, lets talk about this. Then, Benito stopped and Roger went What is more, Marcial himself never claimed self-defense when he gave his sworn statement
away. After the victim noticed that he was no longer being attacked, the victim managed to to the police authorities or during the preliminary investigation of the case. As it is, it was only
stand up. For his (witness) part, he released Marcial who thereupon ran away. However, during trial that he raised for the first time his theory of self-defense. Persons who act in
after a few steps, the victim lost his balance and fell on the ground. Marcial then followed the legitimate defense of themselves describe fully and in all candor at the first opportune time all
victim and stabbed him with a dagger, which was tucked on Marcials waist. The victim who that has happened with a view to justify their acts. The Court is, therefore, inclined to believe
was lying on his back was hit on the breast. The victim managed to stand up again and run that the idea of self-defense was a mere afterthought on the part of Marcial.
but tripped on a pupils desk which caused him to fall down. Marcial followed the victim and We now turn to the three other accused-petitioners.
stabbed him once more. For the third time, the victim tried to get up and run towards the
stage, but again he fell down. Marcial knelt over him and, for the third time, stabbed the The three presently contend that weight and credence should not be given to the inconsistent
victim causing the latters instantaneous death. As to how many times Marcial stabbed the and conflicting testimonies of the two (2) principal prosecution witnesses, namely, Cresencio
victim on that third occasion, this witness was not certain. Tablo and Romulo Tubongbanua. They argue that the testimony of Tubongbanua on direct
examination to the effect that this witness got hold of Babys hand after Marcial hit the victim,
Dr. Renato Moleta, Acting Municipal Health Officer of Sta. Catalina, Negros Oriental, and that of Tablo that, as soon as the victim fell down, the sons of Marcial took turns in
performed the autopsy on the victims cadaver on May 15, 1981 at the dancing area of stabbing him, contradicted Tubongbanuas declaration during cross-examination that before
Barangay Kabulukan and prepared a post-mortem report thereon. According to this witness, Marcial stabbed the victim, he (Tubongbanua) got hold of Babys hand and released him only
he discovered six (6) wounds on the body of the victim and a 7th injury with a contusion- after Marcials last thrust.[10]
hematoma. This witness further testified that when he examined the victims body, it was
already in rigid condition. We perceive no contradiction in the testimonies of Tablo and Tubongbanua. On the contrary,
their testimonies substantially corroborate each other. Tubongbanuas pleading to Baby to
Rizalina de la Cruz, wife of the victim, testified on the funeral expenses amounting to settle the matter was made after the victim was attacked. To quote from the Peoples
P6,000.00 which the family incurred as a result of her husbands death. She added that Comment:[11]
during the lifetime of her husband, the latter farmed their 8.5 hectares of land which were
planted with sugarcane, corn, bananas, and coconut. Her husband left her with 14 children. There is no material inconsistency in the testimonies of prosecution
witnesses Tablo and Tubongbanua. The testimonies of these two
In his defense, the father, Marcial Sienes, while admitting having killed the victim, insisted prosecution witnesses are substantially corroborative of each other except
that he did so in self-defense. He stressed that he was the only one who inflicted all the with respect to the incident wherein witness Tubongbanua tried to pacify
wounds on the victims body. According to him, while making a round outside the dance hall, petitioners Baby and Boboy Sienes by pleading them that they just talk and
his attention was called by Chairman Luz Badon informing him that there was a person settle the matter, upon which the two, according to Tubongbanua, desisted
causing disturbance in the dance hall. When he went inside, he saw the victim holding the from further attacking the victim. However, it must be observed that this
microphone and telling the people that the music to be played was a special one and those happened after they had already cooperated with their father in the
who wanted to dance will pay a certain fee. After three musical records were played and commission of the crime by hacking and stabbing the victim with
nobody danced, he approached the victim, told the latter over the microphone to formalize a pinuti and hitting him on the forehead with a kamagong cane, which
the announcement as the price was not specified. Irked, the victim grabbed the microphone undoubtedly were manifestations of the support and cooperation founded
from him and boxed him, hitting him at his right jaw below his right ear. Thereupon, he on one single objective, i.e., to kill the victim.
retaliated by slapping the victim at the right cheek, which resulted in their boxing and
wrestling with each other. While wrestling, the victim tried to pull out a knife, but he was able In any event, Tubongbanuas clear and positive testimony on direct-examination far
to grab the knife and used it against the victim, hitting the latter at the right cheek and right outweighed whatever perceived inconsistencies there were during his cross-examination. On
ear. As the victim continued to grapple with him, the victim sustained several wounds, the other hand, Tablos testimony successfully revealed the participation of each of the three
resulting to his death. After the incident, he surrendered to Pat. Jessie Navarro of the Sta. accused-petitioners as accomplices in the commission of the crime.[12]
Catalina Police Station. He further declared that his sons, Benito and Roger, were not in the
vicinity of the crime scene when the incident took place, while his other son, Rico, who was Petitioners made much of the fact that the judge who rendered the decision was not the
the escort of the queen that night, was at the gate of the barangay hall. He also confessed same judge who presided over the entire proceedings below. While it may be true that a trial
that all the wounds sustained by the victim were inflicted by him alone and no one else. judge who conducted the hearing would be in a better position to ascertain the truth or falsity
of the testimonies of the witnesses, this does not mean, however, that a judge who did not
Both Rico and Roger testified that they witnessed the fight between their father and the hear a case would be less competent as the first to assess the credibility of witnesses. After
victim, but they had no participation in it. For his part, Benito declared that at the time all, the evidence presented are all on record and the witnesses testimonies are reflected in
material to the case, he and his companions were outside the dance hall. Upon hearing a the transcripts of stenographic notes. Reliance on the transcript does not violate substantive
commotion that a fight was going on, he took his companions home. On his way back to the and procedural due process.[13]
dance hall, he met his mother who informed him that his father had killed somebody. Upon
entering the dance hall, he saw his father standing while the victim was lying down, already After careful scrutiny of the records, particularly the testimonies of the two (2) principal
dead. prosecution witnesses, the Court finds no valid reason to disturb the findings of the trial court
on this matter.
When an accused invokes self-defense, as Marcial Sienes did in this case, the onus
probandi to substantiate such assertion rests on him. He must prove clearly and convincingly In the face of the prosecution witnesses positive identification, the trial court, as well as the
the three elements of self-defense, namely: (1) unlawful aggression on the part of the victim; CA, correctly rejected the three (3) brothers denial and alibi. Alibi is a weak defense. Positive
(2) reasonable necessity of the means employed to prevent or repel the aggression; and (3) identification, when categorical and consistent and without any ill-motive on the part of the
lack of sufficient provocation on the part of the person defending himself.[6] eyewitness testifying on a matter at issue, prevails over sheer denial and alibi which are
basically negative, self-serving and undeserving of any weight in law, unless substantiated by
Going by Marcials testimony, it would appear that after he grabbed the microphone from the clear and convincing proof.[14] Furthermore, for alibi to prosper, the accused must prove that
victim, the latter boxed him, hitting him on his right jaw below the ear. Thereafter, the two of not only was he somewhere else when the crime was committed but he must likewise
them boxed each other, and, while wrestling with one another, the victim tried to grab a demonstrate that it was physically impossible for him to be at the scene of the crime at the
hunting knife, as if to kill him, compelling him to repel the aggression by struggling for the time of its commission,[15] which is not true in this case.
possession of said knife and thrusting it upon the victim himself.
The Court is in full accord with the findings of the CA, and the observation of the Peoples
Marcials account, however, was belied by prosecution witness Cresencio Tablo who counsel, that the crime was not attended by the qualifying aggravating circumstances of
categorically stated that the hunting knife in question came from Marcial himself who was treachery and abuse of superior strength, hence, the crime committed for the death of the
already carrying it in his waist when Marcial entered the dance hall.[7] victim is only Homicide, not Murder, as charged in the Information. As aptly pointed out by
the CA in the decision under review:
For sure, the very testimony of Roger Banaybanay @ Boboy, no less a son of Marcial, shows
that the victim was not the aggressor when attacked by Marcial, but was even making a There was no treachery in this case. x x x. In this case, it is not shown that
frantic attempt to evade Marcials assault.[8] the victim was attacked suddenly and without warning. Appellant Marcial
Sienes merely punched the victim, and when the latter protested, said
appellant punched him again; and only after then did appellant and his
 57
sons strike him with their weapons. We fail to see anything treacherous in
this situation, considering that the victim had been put on guard when he
was first slugged. The Supreme Court said: There is no treachery if the
victim was forewarned of the attack by the assailant. (People vs.
Estrellanes, Jr., GR. No. 111003, 239 SCRA 235 [1994]) We ruled that
treachery was not proven sufficiently.
Neither can abuse of superior strength be appreciated in this case. There is
no showing that appellant Marcial Sienes took advantage of the presence
of his armed sons to overwhelm the victim. As was discussed earlier, the
participation of appellants sons was due to a desire to help their father
rather than as part of a concerted and planned attack. It was mentioned
earlier also that when restrained by witness Tubongbanua, appellants
Baby and Boboy Sienes desisted. Thus, there was never any intention
to overwhelm the victim by combined strength. The Supreme Court said:
To appreciate abuse of superiority, what should be considered is not that
there were three, four or more assailants of one victim but whether the
aggressors took advantage of their combined strength in order to
consummate the offense. (People vs. Francisco, GR No. 106097, 234
SCRA 333 [1994]) Thus, abuse of superior strength cannot be appreciated
in this case.
Without the two aggravating circumstances of treachery
and abuse of superior strength, the crime in this case should only be
homicide.[16]
We are also in agreement with the CAs finding that there was no conspiracy between and
among the three accused-petitioners and their father. Conspiracy cannot be inferred from
their acts. The fast sequence of unexpected events leading to the killing of the victim elicited
the spontaneous, though erroneous reactions of the three. Their impulsive acts cannot but
produce the conclusion that the same were triggered without prior or evident deliberation.
The killing was not the result of a previous plot or sinister design to end the life of the victim.
Conspiracy, like the crime itself, must be proven beyond reasonable doubt and the mere
presence of a person at the scene of the crime does not make him a co-conspirator.[17] But
though not enough to prove conspiracy, the presence of Marcials sons within the vicinity of
the crime scene definitely defies their being mere innocent spectators.
Here, upon seeing their father assault the victim, the three sons approached and struck the
victim with their weapons, thus concurring with their fathers criminal design. In fact, the
records show that Benito struck the victim on the forehead with his cane, causing the latter to
fall down, leaving the victim helpless against the assaults that followed. We note, however,
that Marcials sons participation was not indispensable for the death of the victim since
Marcial could have killed the victim by himself without any need of assistance from his sons,
he being armed with a hunting knife and the victim being intoxicated. This made the sons of
Marcial not conspirators but mere accomplices.[18]
Lastly, Marcial contends that as the barangay captain of the place, he should be entitled to a
privileged mitigating circumstance. He argued that he is a person in authority and the victim
assaulted him, as a person in authority.
We view this as an attempt on the part of Marcial to avail of the privileged mitigating
circumstance of incomplete justifying circumstance of performing a duty under paragraph 1,
Article 13,[19] in relation to paragraph 5, Article 11,[20] of the Revised Penal Code. We must
stress that there are two requisites for this justifying circumstance: (a) that the offender acted
in the lawful exercise of a right or a duty; and (b) that the injury or offense committed be the
necessary consequence of the due performance of such right or office. [21] These two
requisites are wanting in this case. The victim was not committing any offense at the time
and killing him under the circumstances of this case cannot in any wise be considered a valid
performance of a lawful duty by a barangay captain.
WHEREFORE, the instant petition is DENIED and the assailed CA decision and resolution in
CA-G.R. CR No. 10252 are AFFIRMED.
Costs against the petitioners.
SO ORDERED.
58
 59
GR NO. 182750, January 20, 2009 Ramon Ramos, diagnosed Tomelden suffering from brain injury, secondary to mauling to
consider cerebral hemorrhage.[3]
RODEL URBANO, PETITIONER,
~vs~ Tomelden was confined in the provincial hospital until 3:00 p.m. of October 10, 1993, and,
PEOPLE OF THE PHILIPPINES, RESPONDENT. due to financial constraints, was thereafter discharged despite signs negating physical
condition improvement. Upon reaching their house, however, Tomelden again complained of
DECISION extreme head pain, prompting his wife to bring him back to the Lingayen Community Hospital
VELASCO JR., J.: where Dr. Arellano again attended to him. This time, things turned for the worst, the doctor
noting that Tomelden appeared to be semi-conscious, sleepy, uncooperative, and not
This petition for review under Rule 45 seeks to reverse and set aside the Decision [1] dated responding to any stimulant. Tomelden died at 9:00 p.m. of that day due, per Dr. Arellano, to
January 25, 2008 of the Court of Appeals (CA) in CA-G.R. CR No. 25371 which affirmed with cardio-respiratory arrest secondary to cerebral concussion with resultant cerebral
modification the April 30, 2001 Decision[2] of the Regional Trial Court (RTC), Branch 39 in hemorrhage due to mauling incident.
Lingayen, Pangasinan in Criminal Case No. L-5028. The RTC found petitioner Rodel Urbano
guilty beyond reasonable doubt of the crime of Homicide. The defense presented petitioner who denied having any intention to kill, asserting that
hypertension, for which Tomelden was receiving treatment, was the cause of the latters
The Facts death.
In an Information filed before the RTC, petitioner was charged with Homicide, committed as The Ruling of the RTC
follows:
On April 30, 2001, the RTC rendered judgment finding petitioner guilty as charged.
That on or about the 28th of September 1993 in the evening, in Barangay Poblacion, The fallo of the RTCs decision reads:
Municipality of Lingayen, Province of Pangasinan, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, with intent to kill, did then and there WHEREFORE, the prosecution having established beyond reasonable doubt the guilt of
willfully, unlawfully and feloniously attack, assault, hit and maul Brigido Tomelden, the accused of the crime of HOMICIDE as defined and penalized under Art. 249 of the
inflicting upon him mortal injuries and as borne out from the autopsy report the following Revised Penal Code, this Court in the absence of any modifying circumstances, hereby
findings: sentences said accused to suffer the indeterminate prison term of eight (8) years and
one (1) day of Prision Mayor as minimum to seventeen (17) years and four (4) months of
EXTERNAL FINDINGS: Reclusion Temporal as maximum and to indemnify the legal heirs of the victim in the
amount of PHP50,000.00, plus cost of the suit.
A- Softened portion of the scalp over (R) occipito-temporal area about 5 inches above
and posterior to the (R) ear. The period of preventive imprisonment suffered by the accused shall be credited in full in
the service of his sentence in accordance with Art. 29 of the Revised Penal Code.[4]
B- Clotted blood over the (R) occipito-temporal area.
Therefrom, petitioner appealed to the CA, his recourse docketed as CA-G.R. CR No. 25371.
C- No lacerations noted.
The Ruling of the CA
INTERNAL FINDINGS:
On January 25, 2008, the CA rendered a decision, affirming the conviction of petitioner, but
A- On opening the skull there is oozing of dark colored blood from the brain substances. awarding moral damages to the heirs of Tomelden, disposing as follows:
B- More darked blood vessels at the (L) side of the brain. WHEREFORE, in the light of the foregoing, the appeal of the accused-appellant is
CAUSE OF DEATH: DISMISSED. The decision appealed from is AFFIRMED with MODIFICATION that an
award of P50,000.00 moral damages is GRANTED.
Cardio-respiratory arrest secondary to cerebral concussion with resultant cerebral
hemorrhage due to mauling incident. Remand of the records should immediately follow finality for the consequent execution of
the decision.[5]
Which directly caused his death, to the damage and prejudice of the heirs of the said
Brigido Tomelden. The appellate court held that the commission by petitioner of the crime of homicide, as
defined and penalized under Article 249[6] of the Revised Penal Code (RPC), had been
CONTRARY to Article 249 of the Revised Penal Code. proved beyond moral certainty of doubt, pointing to the lucky punch as the proximate cause
of Tomeldens hospitalization and ultimately his death. And like the RTC, the CA found no
Petitioner, when arraigned, pleaded not guilty to the charge. Following the parties waiver of qualifying circumstance to increase or lower the penalty.
pre-trial, trial on the merits then ensued.
Following the denial of petitioners motion for reconsideration, per the CA Resolution [7] of
As summarized in the decision subject of review, the prosecutions evidence established the April 24, 2008, he interposed this petition.
following facts:
The Issues
On September 28, 1993, at around 8:00 p.m., the victim Brigido Tomelden and petitioner
were at the compound of the Lingayen Water District (LIWAD) in Lingayen, Pangasinan, On essentially the same issues raised before the CA, petitioner now urges the Court to set
having just arrived from a picnic in the nearby town of Bugallon, Pangasinan, where, with aside the appealed decision, or at least modify it, maintaining that the appellate court:
some other co-workers, they drunk beer in a restaurant. While inside the compound, the two
had a heated altercation in the course of which Tomelden hurled insulting remarks at I. x x x erred in affirming the decision of the [RTC] finding [him] guilty beyond reasonable
petitioner. Reacting, petitioner asked why Tomelden, when drunk, has the penchant of doubt of the crime charged.
insulting petitioner. II. x x x erred in not appreciating the mitigating circumstances of sufficient provocation on
The exchange of words led to an exchange of blows. Cooler heads succeeded in breaking up the part of the victim and lack of intent to commit so grave a wrong in favor of the
the fight, but only for a brief moment as the protagonists refused to be pacified and continued petitioner.[8]
throwing fist blows at each other. Then petitioner delivered a lucky punch, as described by The Courts Ruling
eyewitness Orje Salazar, on Tomeldens face, which made Tomelden topple down.
Tomelden was on the verge of hitting his head on the ground had their companions not The petition is partly meritorious.
caught him and prevented the fall. The blow, however, caused Tomeldens nose to bleed and
rendered him unconscious. Homicide Duly Proved

Petitioner and his other co-workers brought Tomelden to the office of the LIWAD general
manager where he spent the night. He remained in the compound the following day,
September 29, 1993. Upon arriving home at around 6:00 p.m. of that day, Tomelden
informed his wife, Rosario, of the fight the previous night and of his having been rendered
unconscious. He complained of pain in his nape, head, and ear which impelled Rosario to
immediately bring him to the Lingayen Community Hospital where Dr. Daisy Arellano
examined him and treated his lacerated left index finger, contusions, and hematoma at the
right cerebrum.
On October 2 and 7, 1993, Tomelden went back to the hospital complaining of dizziness,
headache, and other pains. The attending doctors observed the patient to be in a state of We are not persuaded.
drowsiness and frequent vomiting. On October 8, 1993, Rosario brought Tomelden to the
Sison Memorial Provincial Hospital in Dagupan City, where the attending physician, Dr.
It is petitioners threshold posture that the fistic injury Tomelden sustained was not the main
underlying cause of his death.[9] In this regard, petitioner draws attention to the fact that the
fist fight in question happened on September 28, 1993. Tomelden, however, died only on
October 10, 1993 or 12 days thereafter and that, during the intervening days, particularly
September 29, 1993, the deceased regularly reported for work. Moreover, petitioner avers
that days prior to the fateful incident of September 28, 1993, Tomelden failed to come to
work as he was suffering from malignant hypertension and that this circumstance greatly
engenders doubt as to the proximate cause of the victims death. Petitioner, thus, contends
that he could only be adjudged guilty of physical injuries.[10]

The prosecution witness, Salazar, testified about petitioners lucky punch hitting Tomelden
right smack on the face. And even if Tomeldens head did not hit the ground as his co-
workers averted that actuality, that punch gave him a bleeding nose and rendered him
unconscious right after the September 28, 1993 fight. From then on, Tomelden was in and
out of the hospital complaining of headache, among other pains, until his demise on October
10, 1993, or 12 days after the blow that made Tomelden unconscious.
Significantly, Dr. Arellano testified conducting an autopsy on the body of Tomelden and
stressed that the softened portion of the scalp over (R) occipito-temporal area about 5
inches above and posterior to the (R) ear of the victim could have been caused by a fist
blow. She also opined that the fist blow which landed on Tomeldens head could have
shaken his brain which caused the cerebral concussion; and that the cause of the victims
death was cardio-respiratory arrest secondary to cerebral concussion with resultant cerebral
hemorrhage due to mauling incident.
60
When so informed, Tomelden insulted petitioner, telling the latter he had no business
stopping him from further drinking as he was paying for his share of the bill. Chastised,
petitioner returned to his table to report to Navarro. At that time, petitioner saw that Tomelden
had already consumed 17 bottles of beer. In all, the group stayed at the picnic place for three
and a half hours before returning to the LIWAD.
Upon reaching the LIWAD compound, Tomelden allegedly slapped and hurled insults at him,
calling him sipsip just to maintain his employment as Navarros tricycle driver. Tomelden
allegedly then delivered several fist and kick blows at petitioner, a couple of which hit him
despite his evasive actions. Petitioner maintained that he only boxed the victim in retaliation,
landing that lucky punch in the course of parrying the latters blows.
The following testimony of Salazar attests to the provocative acts of Tomelden and to his
being the aggressor:

The combined effects of the testimonies of Salazar and Dr. Arellano, buttressed by that of PROSECUTOR CHIONG
Rosario who related about her husbands post September 28, 1993 severe head pain, clearly
establish beyond cavil the cause of Tomeldens death and who was liable for it. Q After you heard from the accused those remarks, what if any did the victim
The CA observed aptly: replied if any?

It was through the direct accounts of the prosecution witnesses of the events that
WITNESS
transpired during the fisticuff incident x x x more specifically the landing of the lucky
punch on the face of [Tomelden], taken together with the result of the medical
examinations and autopsy report which described the death of the victim as cardio- A They exchanged angry words, sir.
respiratory arrest secondary to cerebral concussion with resultant cerebral hemorrhage
due to mauling incident that we are convinced that the lucky punch was the proximate Q What were these words?
cause of [Tomeldens] death. The prosecution had satisfactorily proven that it was only
after the incident that transpired on September 28, 1993 that the victim was hospitalized A Rodel Urbano said, When youre already drunk, you keep on insulting
on several occasions until he expired, twelve days later x x x. It is moreover of no me.
consequence whether the victim was able to report for work during the intervening days x
x x. Q And what was the reply if any?
We find no reason to depart from the doctrinal rule that great weight is accorded the
factual findings of the trial court, particularly with respect to the ascertainment of the A `Akina tua lanti.
credibility of witnesses. There was absence of any ill motive on the part of x x x Salazar
who in fact testified that he was a friend of both [petitioner] and [Tomelden]; more so on PROS. CHIONG
the part of the attending physicians.[11] x x x
Petitioners suggestion that Tomelden succumbed to heart ailment and/or that his death was Q Who said that?
the result of his malignant hypertension is untenable, given that the post-mortem report yields
no positive indication that he died from such malady. WITNESS
Mitigating Circumstances Present
A It was Brigido Tomelden, sir.
Petitioner next contends that the mitigating circumstances of no intention to commit so grave
a wrong and sufficient provocation on the part of the victim ought to be appreciated in
petitioners favor. Q And what transpired next?

On this score, we agree with petitioner. A After that they exchange words, sir. If you like we will have a fist fight he
said.
Paragraphs 3 and 4 of Art. 13, RPC provide as follows:
Art. 13. Mitigating circumstances.The following are mitigating circumstances: Q Who said that?

xxxx A Brigido Tomelden said.

3. That the offender had no intention to commit so grave a wrong as that committed.
Q At that time, were you already inside the compound of the LIWAD?
4. That sufficient provocation or threat on the part of the offended party immediately
preceded the act. A Yes, sir.
When the law speaks of provocation either as a mitigating circumstance or as an essential Q After the victim allegedly told the accused, If you want a fist fight, what
element of self-defense, the reference is to an unjust or improper conduct of the offended transpired next?
party capable of exciting, inciting, or irritating anyone;[12] it is not enough that the provocative
act be unreasonable or annoying;[13] the provocation must be sufficient to excite one to
A Rodel Urbano said, if it is a fist fight we fight.[17]
commit the wrongful act[14] and should immediately precede the act.[15] This third requisite of
self-defense is present: (1) when no provocation at all was given to the aggressor; (2) when,
Q And when you were already in the compound of LIWAD Office, Brigido
even if provocation was given, it was not sufficient; (3) when even if the provocation was
Tomelden was challenging the accused for a fist fight?
sufficient, it was not given by the person defending himself; or (4) when even if a provocation
was given by the person defending himself, it was not proximate and immediate to the act of
aggression.[16] A Yes, sir.

In the instant case, Tomeldens insulting remarks directed at petitioner and uttered Q And the accused refused to accept the challenge?
immediately before the fist fight constituted sufficient provocation. This is not to mention other
irritating statements made by the deceased while they were having beer in Bugallon. A Yes because Mr. Brigido Tomelden is very much bigger than Mr. Rodel
Petitioner was the one provoked and challenged to a fist fight. Urbano. He is stouter than the accused.
Petitioners unrebutted testimony on the events immediately preceding the fisticuff and earlier
Q But finally the fist fight took place?
dovetails with the testimony of Salazar.
In gist, petitioner testified being, in the afternoon of September 28, 1993, in the nearby town A Yes, sir.[18]
of Bugallon for a picnic. He was with Tomelden and several others, including Dominador
Navarro, Chairperson of LIWAD. At a restaurant in Bugallon, the group ordered goats meat PROS. CHIONG
and drank beer. When it was time to depart, Navarro asked petitioner to inform Tomelden,
then seated in another table, to prepare to leave.

Q When the victim and this accused had this fight, fist fight, they exchanged
blows, but there was this lucky punch that hit the victim because the victim fall
down, is that correct?
A When I stop pacifying them x x x, I saw Biring the late Brigido Tomelden, he
was much aggressive than the accused, sir.
Q You mean that although it was the victim who was more aggressive than the
accused here, he also [threw] punches but sometime some of his punches
most of which did not hit the victim?
61
petitioner, hereby MODIFIED by decreasing the term of imprisonment. As thus modified,
petitioner Rodel Urbano is hereby sentenced to serve an indeterminate prison term of
from two (2) years and four (4) months of prision correccional, as minimum, to eight (8)
years and one (1) day of prision mayor, as maximum, with whatever imprisonment he
has already served fully credited in the service of this sentence. The rest of the
judgment is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.

A He tried to parry the blows of the late Brigido Tomelden, sir.

Q Because he tried to parry the blow of the Brigido Tomelden, when the accused
throw punches, the punch was directed to the victim but most of them did not
hit the victim, is that what you saw?

A Yes, sir.[19] (Emphasis added.)

It is abundantly clear from the above transcript that the provocation came from Tomelden. In
fact, petitioner, being very much smaller in height and heft, had the good sense of trying to
avoid a fight. But as events turned out, a fisticuff still ensued, suddenly ending when
petitioners lucky punch found its mark. In People v. Macaso,[20] a case where the accused
police officer shot and killed a motorist for repeatedly taunting him with defiant words, the
Court appreciated the mitigating circumstance of sufficient provocation or threat on the part
of the offended party immediately preceding the shooting. The Court had the same attitude
in Navarro v. Court of Appeals,[21] a case also involving a policeman who killed a man after
the latter challenged him to a fight. Hence, there is no rhyme or reason why the same
mitigating circumstance should not be considered in favor of petitioner.
Moreover, the mitigating circumstance that petitioner had no intention to commit so grave a
wrong as that committed should also be appreciated in his favor. While intent to kill may be
presumed from the fact of the death of the victim, this mitigating factor may still be
considered when attendant facts and circumstances so warrant, as in the instant case.
Consider: Petitioner tried to avoid the fight, being very much smaller than Tomelden. He tried
to parry the blows of Tomelden, albeit he was able, during the scuffle, to connect a lucky
punch that ended the fight. And lest it be overlooked, petitioner helped carry his unconscious
co-worker to the office of the LIWADs general manager. Surely, such gesture cannot
reasonably be expected from, and would be unbecoming of, one intending to commit so
grave a wrong as killing the victim. A bare-knuckle fight as a means to parry the challenge
issued by Tomelden was commensurate to the potential violence petitioner was facing. It was
just unfortunate that Tomelden died from that lucky punch, an eventuality that could have
possibly been averted had he had the financial means to get the proper medical attention.
Thus, it is clear that the mitigating circumstance of no intention to commit so grave a wrong
as that committed must also be appreciated in favor of petitioner while finding him guilty of
homicide. That petitioner landed a lucky punch at Tomeldens face while their co-workers
were trying to separate them is a compelling indicium that he never intended so grave a
wrong as to kill the victim.
Withal, with no aggravating circumstance and two mitigating circumstances appreciable in
favor of petitioner, we apply par. 5 of Art. 64, RPC, which pertinently provides:
Art. 64. Rules for the application of penalties which contain three periods.In cases in
which the penalties prescribed by law contain three periods, whether it be a single
divisible penalty or composed of three different penalties, each one of which forms a
period in accordance with the provisions of Articles 76 and 77, the courts shall observe
for the application of the penalty the following rules, according to whether there are or
are no mitigating or aggravating circumstances:
xxxx
5. When there are two or more mitigating circumstances and no aggravating
circumstances are present, the court shall impose the penalty next lower to that
prescribed by law, in the period that it may deem applicable, according to the number
and nature of such circumstances.
The prescribed penalty for homicide under Art. 249 of the RPC is reclusion temporal or from
12 years and one day to 20 years. With the appreciation of two mitigating circumstances of
no intention to commit so grave a wrong as that committed and of sufficient provocation from
the victim, and the application of par. 5 of Art. 64, RPC, the imposable penalty would, thus,
be the next lower penalty prescribed for homicide and this should be prision mayor or from
six years and one day to 12 years. Consequently, with the application of the Indeterminate
Sentence Law, petitioner ought to be incarcerated from prision correccional as minimum
and prision mayor as maximum. In view of the circumstances of the case, considering that
the petitioner never meant or intended to kill the victim, a prison term of eight (8) years and
one (1) day of prision mayor as maximum period is proper while the period of two (2) years
and four (4) months of prision correccional as minimum period is reasonable.
We find no reason to modify the award of civil indemnity and moral damages.
WHEREFORE, the CA Decision dated January 25, 2008 in CA-G.R. CR No. 25371 is, in the
light of the presence and the appreciation of two mitigating circumstances in favor of
62
 63
GR NO. 132547, September 20, 2000 true that the victim attacked him and his life was endangered yet his two (2)
companions SPO1 Espadera and SPO2 Pillo did not do anything to help him but just
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, witness the incident which is unbelievable and unnatural behavior of police officers x x
~vs~ xx
SPO1 ERNESTO ULEP, ACCUSED-APPELLANT.
WHEREFORE, prescinding from the foregoing, judgment is hereby rendered finding the
DECISION accused Ernesto Ulep guilty beyond reasonable doubt of the crime of Murder, the
BELLOSILLO, J.: accused is hereby sentenced to suffer the extreme penalty of Death, to indemnify the
heirs of Buenaventura Wapili the amount of P50,000.00 without subsidiary imprisonment
In the aftermath of an incident where a certain Buenaventura Wapili[1] went berserk at in case of insolvency and to pay the costs.
Mundog Subdivision, Poblacion Kidapawan, Cotabato, in the early morning of 22 December
1995, Police Officer Ernesto Ulep was found guilty of murder and sentenced to death by the Death penalty having been imposed by the trial court, the case is now before us on automatic
trial court for killing Wapili. Ulep was also ordered to indemnify the heirs of the victim in the review. Accused-appellant prays for his acquittal mainly on the basis of his claim that the
amount of P50,000.00 and to pay the costs.[2] killing of the victim was in the course of the performance of his official duty as a police officer,
and in self-defense.
The evidence shows that at around two o clock in the morning of 22 December 1995
Buenaventura Wapili was having a high fever and was heard talking insensibly to himself in Preliminarily, having admitted the killing of Wapili, accused-appellant assumed the burden of
his room. His brother-in-law, Dario Leydan, convinced him to come out of his room and talk proving legal justification therefor. He must establish clearly and convincingly how he acted in
to him, but Wapili told Leydan that he could not really understand himself. After a while, fulfillment of his official duty and/or in complete self-defense, as claimed by him; otherwise,
Wapili went back to his room and turned off the lights. Moments later, the lights went on he must suffer all the consequences of his malefaction. He has to rely on the quantitative and
again and Leydan heard a disturbance inside the room, as if Wapili was smashing the qualitative strength of his own evidence, not on the weakness of the prosecution; for even if it
furniture.[3] Unable to pacify Wapili, Leydan called Pastor Bonid of the Alliance Church of were weak it could not be disbelieved after he had admitted the killing.
[10]

Kidapawan to help him pray over Wapili, but they could not enter the latters room as he Before the justifying circumstance of fulfillment of a duty under Art. 11, par. 5, of The Revised
became wild and violent. Suddenly, Wapili bolted out of his room naked and chased Leydan. Penal Code may be successfully invoked, the accused must prove the presence of two (2)
Thereafter, Leydan with the aid of two (2) of his neighbors attempted to tie Wapili with a rope requisites, namely, that he acted in the performance of a duty or in the lawful exercise of a
but was unsuccessful as Wapili was much bigger in built and stronger than anyone of right or an office, and that the injury caused or the offense committed be the necessary
them.[4] Wapili, who appeared to have completely gone crazy, kept on running without any consequence of the due performance of duty or the lawful exercise of such right or office.
particular direction. The second requisite is lacking in the instant case.
Thus, Leydan went to the house of policewoman Norma Plando, a neighbor, and asked for Accused-appellant and the other police officers involved originally set out to perform a legal
assistance. As Wapili passed by the house of Plando, he banged Plandos vehicle parked duty: to render police assistance, and restore peace and order at Mundog Subdivision where
outside. Using a hand-held radio, Plando then contacted SPO1 Ernesto Ulep, SPO1 the victim was then running amuck. There were two (2) stages of the incident at Mundog
Edilberto Espadera and SPO2 Crispin Pillo, all members of the PNP assigned to secure the Subdivision. During the first stage, the victim threatened the safety of the police officers by
premises of the nearby Roman Catholic Church of Kidapawan.[5] menacingly advancing towards them, notwithstanding accused-appellants previous warning
At around four oclock in the morning of the same day, SPO1 Ulep together with SPO1 shot and verbal admonition to the victim to lay down his weapon or he would be shot. As a
Espadera and SPO2 Pillo arrived at the scene on board an Anfra police service jeep. The police officer, it is to be expected that accused-appellant would stand his ground. Up to that
three (3) police officers, all armed with M-16 rifles, alighted from the jeep when they saw the point, his decision to respond with a barrage of gunfire to halt the victims further advance
naked Wapili approaching them. The kind of weapon Wapili was armed with is disputed. The was justified under the circumstances. After all, a police officer is not required to afford the
police claimed that he was armed with a bolo and a rattan stool, while Wapilis relatives and victim the opportunity to fight back. Neither is he expected when hard pressed and in the
neighbors said he had no bolo, but only a rattan stool. heat of such an encounter at close quarters to pause for a long moment and reflect coolly
at his peril, or to wait after each blow to determine the effects thereof.
SPO1 Ulep fired a warning shot in the air and told Wapili to put down his weapons or they
would shoot him. But Wapili retorted pusila! (fire!) and continued advancing towards the However, while accused-appellant is to be commended for promptly responding to the call of
police officers. When Wapili was only about two (2) to three (3) meters away from them, duty when he stopped the victim from his potentially violent conduct and aggressive
SPO1 Ulep shot the victim with his M-16 rifle, hitting him in various parts of his body. As the behavior, he cannot be exonerated from overdoing his duty during the second stage of the
victim slumped to the ground, SPO1 Ulep came closer and pumped another bullet into his incident when he fatally shot the victim in the head, perhaps in his desire to take no
head and literally blew his brains out.[6] chances, even after the latter slumped to the ground due to multiple gunshot wounds
sustained while charging at the police officers. Sound discretion and restraint dictated that
The post mortem examination of the body conducted by Dr. Roberto A. Omandac, Municipal accused-appellant, a veteran policeman,[11] should have ceased firing at the victim the
Health Officer of Kidapawan, showed that Wapili sustained five (5) gunshot wounds: one (1) moment he saw the latter fall to the ground. The victim at that point no longer posed a threat
on the right portion of the head, one (1) on the right cheek, one (1) on the abdomen and two and was already incapable of mounting an aggression against the police officers. Shooting
(2) on the right thigh: SHEENT gunshot wound on the right parietal area with fractures of him in the head was obviously unnecessary. As succinctly observed by the trial court
the right temporoparietal bones with evisceration of brain tissues, right zygomatic bone and
right mandible, lateral aspect; CHEST & BACK with powder burns on the right posterior Once he saw the victim he fired a warning shot then shot the victim hitting him on the
chest; ABDOMEN gunshot wound on the right upper quadrant measuring 0.5 cm. in different parts of the body causing him to fall to the ground and in that position the
diameter (point of entry) with multiple powder burns around the wound and on the right accused shot the victim again hitting the back portion of the victims head causing the
lumbar area (point of exit). Gunshot wound on the suprapubic area (point of entry); brain to scatter on the ground x x x x the victim, Buenaventura Wapili, was already on the
EXTREMETIES with gunshot wounds on the right thigh, upper third, anterior aspect ground. Therefore, there was no necessity for the accused to pump another shot on the
measuring 0.5 cm. in diameter with powder burns (point of entry) and right buttocks back portion of the victims head.
measuring 0.5 cm. in diameter (point of exit); gunshot wound on the right thigh, upper third, It cannot therefore be said that the fatal wound in the head of the victim was a necessary
posterolateral aspect; CAUSE OF DEATH multiple gunshot wounds.[7] consequence of accused-appellants due performance of a duty or the lawful exercise of a
Dr. Omandac concluded that the shots were fired at close range, perhaps within twenty-four right or office.
(24) inches, judging from the powder burns found around some of the wounds in the body of Likewise, the evidence at hand does not favor his claim of self-defense. The elements in
the victim,[8] and that the wound in the head, which caused the victims instantaneous death, order for self-defense to be appreciated are: (a) unlawful aggression on the part of the
was inflicted while the victim was in a lying position.[9] person injured or killed by the accused; (b) reasonable necessity of the means employed to
The Office of the Ombudsman for the Military filed an Information for murder against SPO1 prevent or repel it; and, (c) lack of sufficient provocation on the part of the person defending
Ulep. The accused pleaded not guilty to the charge on arraignment, and insisted during the himself.[12]
trial that he acted in self-defense. However, on 28 October 1997, the trial court rendered The presence of unlawful aggression is a condition sine qua non. There can be no self-
judgment convicting the accused of murder and sentencing him to death defense, complete or incomplete, unless the victim has committed an unlawful aggression
The means employed by the accused to prevent or repel the alleged aggression is not against the person defending himself.[13] In the present case, the records show that the victim
reasonable because the victim, Buenaventura Wapili, was already on the ground, was lying in a prone position on the ground bleeding from the bullet wounds he sustained,
therefore, there was no necessity for the accused to pump another shot on the back and possibly unconscious when accused-appellant shot him in the head. The aggression
portion of the victims head. Clearly the gravity of the wounds sustained by the victim that was initially begun by the victim already ceased when accused-appellant attacked him.
belies the pretension of the accused that he acted in self-defense. It indicates his From that moment, there was no longer any danger to his life.
determined effort to kill the victim. It is established that accused (sic) was already in the This Court disagrees with the conclusion of the court a quo that the killing of Wapili by
ground that would no longer imperil the accuseds life. The most logical option open to accused-appellant was attended by treachery, thus qualifying the offense to murder. We
the accused was to inflict on the victim such injury that would prevent the victim from discern nothing from the evidence that the assault was so sudden and unexpected and that
further harming him. The court is not persuaded by the accuseds version because if it is
 64
accused-appellant deliberately adopted a mode of attack intended to insure the killing of countenance trigger-happy law enforcement officers who indiscriminately employ force and
Wapili, without the victim having the opportunity to defend himself. 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,
On the contrary, the victim could not have been taken by surprise as he was given more than these criminals are also human beings with human rights.
sufficient warning by accused-appellant before he was shot, i.e., accused-appellant fired a
warning shot in the air, and specifically ordered him to lower his weapons or he would be WHEREFORE, the appealed Judgment is MODIFIED. Accused-appellant SPO1 ERNESTO
shot. The killing of Wapili was not sought on purpose. Accused-appellant went to the scene ULEP is found guilty of HOMICIDE, instead of Murder, and is sentenced to an indeterminate
in pursuance of his official duty as a police officer after having been summoned for prison term of four (4) years, two (2) months and ten (10) days of prision
assistance. The situation that the victim, at the time accused-appellant shot him in the head, correccional medium as minimum, to six (6) years, four (4) months and twenty (20) days
was prostrate on the ground is of no moment when considering the presence of treachery. of prision mayor minimum as maximum. He is further ordered to indemnify the heirs of
The decision to kill was made in an instant and the victims helpless position was merely Buenaventura Wapili in the amount of P50,000.00, and to pay the costs.
incidental to his having been previously shot by accused-appellant in the performance of his
official duty. SO ORDERED.

There is treachery when the offender commits any of the crimes against persons, employing
means, methods, or forms in the execution thereof which tend directly and specially to insure
its execution, without risk to himself arising from the defense which the offended party might
make.[14] 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
accused-appellant. Accordingly, for failure of the prosecution to prove treachery to qualify the
killing to murder, accused-appellant may only be convicted of homicide.
Indeed, to hold him criminally liable for murder and sentence him to death under the
circumstances would certainly have the effect of demoralizing other police officers who may
be called upon to discharge official functions under similar or identical conditions. We would
then have a dispirited police force who may be half-hearted, if not totally unwilling, to perform
their assigned duties for fear that they would suffer the same fate as that of accused-
appellant.
This brings us to the imposition of the proper penalty.
We find in favor of accused-appellant the incomplete justifying circumstance of fulfillment of a
duty or lawful exercise of a right. Under Art. 69 of The Revised Penal Code, a penalty lower
by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly
excusable by reason of the lack of some of the conditions required to justify the same or to
exempt from criminal liability in the several cases mentioned in Arts. 11 and 12, provided that
the majority of such conditions be present. The courts shall impose the penalty in the period
which may be deemed proper, in view of the number and nature of the conditions of
exemption present or lacking.
Incomplete justification is a special or privileged mitigating circumstance, which, not only
cannot be offset by aggravating circumstances but also reduces the penalty by one or two
degrees than that prescribed by law.[15] Undoubtedly, the instant case would have fallen
under Art. 11, par. 5 of The Revised Penal Code had the two (2) conditions therefor
concurred which, to reiterate: first, that the accused acted in the performance of a duty or the
lawful exercise of a right or office; and second, that the injury or offense committed be the
necessary consequence of the due performance of such duty or the lawful exercise of such
right or office. But here, only the first condition was fulfilled. Hence, Art. 69 is applicable,
although its that the majority of such conditions be present, is immaterial since there are
only two (2) conditions that may be taken into account under Art. 11, par. 5. Article 69 is
obviously in favor of the accused as it provides for a penalty lower than that prescribed by
law when the crime committed is not wholly justifiable. The intention of the legislature,
obviously, is to mitigate the penalty by reason of the diminution of either freedom of action,
intelligence, or intent, or of the lesser perversity of the offender.[16]
We likewise credit in favor of accused-appellant the mitigating circumstance of voluntary
surrender. The police blotter of Kidapawan Municipal Police Station shows that immediately
after killing Wapili, accused-appellant reported to the police headquarters and voluntarily
surrendered himself.[17]
Article 249 of The Revised Penal Code prescribes for the crime of homicide the penalty
of reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20)
years. There being an incomplete justifying circumstance of fulfillment of a duty, the penalty
should be one (1) degree lower, i.e., from reclusion temporal to prision mayor, pursuant to
Art. 69, in relation to Art. 61, par. 2, and Art. 71, of the Code, to be imposed in its minimum
period since accused-appellant voluntarily surrendered to the authorities and there was no
aggravating circumstance to offset this mitigating circumstance. Applying the Indeterminate
Sentence Law, the maximum of the penalty shall be taken from the minimum period
of prision mayor, the range of which is six (6) years and one (1) day to eight (8) years, while
the minimum shall be taken from the penalty next lower in degree which is prision
correccional, in any of its periods, the range of which is six (6) months and one (1) day to six
(6) years.
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.[18] 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.[19] We cannot

GR NO. 172326, January 19, 2009
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE,
~vs~
ALFREDO PASCUAL Y ILDEFONSO, ACCUSED-APPELLANT.
DECISION
LEONARDO-DE CASTRO, J.:
Under review is the Decision[1] dated December 9, 2005 of the Court of Appeals (CA) in CA-
G.R. CR.-HC No. 01493 finding accused-appellant Alfredo Pascual y Ildefonso alias
BOYET guilty beyond reasonable doubt of the crime of Rape with Homicide and
sentencing him to suffer the penalty of death. Said decision affirmed that of the Regional Trial
Court (RTC), Branch 211, Mandaluyong City, albeit with the modification that granted an
additional award of P100,000.00 as civil indemnity to the heirs of the deceased-victim.
The conviction of accused-appellant stemmed from an Amended Information[2] dated
February 23, 2001, filed with the RTC for the crime designated as Rape with Homicide and
Robbery, the accusatory portion of which reads:
That on or about the 25th day of December 2000 in the City of Mandaluyong, Philippines,
a place within the jurisdiction of this Honorable Court, the above-named accused, with
lewd designs, by the use of force and intimidation, did then and there willfully, unlawfully
and feloniously, lie and have carnal knowledge of one LORELYN PACUBAS y TAMAYO,
against the latters will and consent.
During the occasion or by reason of the rape with intent to kill and taking advantage of
superior strength, covered the face of said victim with a pillow, thus suffocating her which
ultimately led to her instantaneous death. Likewise, during or on occasion of the rape
with intent to gain and by means of force, violence and intimidation employed upon the
person of Lorelyn Pacubas y Tamayo, did then and there willfully, unlawfully and
feloniously take, steal and carry away the following, to wit:
a). one (1) gold necklace with pendant
b). one (1) pair of gold earring
c). college ring
d). Seiko ladys wristwatch
all in the total amount of P10,000.00 more or less, belonging to victim Lorelyn Pacubas y
Tamayo, to the damage and prejudice of the latter.
When arraigned, appellant pleaded not guilty to the charge. Trial thereafter ensued. 2)
During trial, the prosecution presented seven (7) witnesses; namely, Rodolfo Jundos, Jr. and
Arlene Gorospe, both neighbors of the victim; Eduardo Velasco, a friend of the victims sister; 3)
Police officers (PO)2 Fernando Aguilan and Police Inspector (P/Insp.) Russel Leysa; Dr.
Felimon Porciuncula, Jr., the Philippine National Police (PNP) medico-legal officer; and
Lorenza Pacubas, the victims mother. The prosecutions version of the facts, as narrated in 4)
the decision under review, follows:
5)
The incident xxx happened in a room at the second floor of House No. 724, Ballesteros
St., Barangay New Zaniga, Mandaluyong City. The sketch of the house (Exh. A, p. 148
Records) shows it has three (3) rooms; on the first floor, one occupied by Arlene Gorospe
and family (exh. A-1); the second, by Alfredo Pascual and his family (Exh. A-2); and the
third is the residence of Rodolfo Jundos, Jr. and his family. On the second floor is another
room occupied by the family of the victim Lorelyn Pacubas y Tamayo (alias Ling-Ling) and
her siblings.
1)
Last December 24, 2000, at around 10:00 oclock in the evening, Rodolfo Jundos, Jr. was
preparing to celebrate noche buena with his son and the accused-appellant, Alfredo
Pascual who was with Christopher, his 2-year old youngest child. Alfredo Pascual 2)
appeared to have had liquor already. For three (3) instances, the accused would ask
permission to go inside the house as he was already sleepy and drunk but nonetheless LARYNX, TRACHEA & ESOPHAGUS
will return 10 to 15 minutes later, twice still with the child and only to continue drinking
every time he returned. On the third time, he was without the child anymore and partake
(sic) of liquor until 1:00 oclock a.m. when he left, leaving Rodolfo Jundos, Jr. alone just
outside the aforesaid house at 724 Ballesteros St. (Exh. A-8). Twenty (20) minutes later,
Divina Pascual, appellants wife, came out the house looking for her husband. When
informed that the latter had already left, Divina started looking for him inside the house
and later in the billiard hall 10 or 15 minutes away. Moments later, Divina went passed GENITAL
(sic) the place where Rodolfo Jundos, Jr. was drinking, rushing upstairs to the second
floor of the house. Soon after, Jundos saw Divina chasing Alfredo running out towards the
gate at the same time asked (sic) Jundos for help saying Kuya, tulungan mo ako, si
Boyet (referring to Alfredo Pascual)). Thinking that Alfredo Pascual was making trouble,
Rodolfo Jundos, Jr. joined the chase but could not catch up as Alfredo was running very
fast. So Divina told him to instead go upstairs as the accused might have done something
wrong to Ling-ling (Lorelyn) [T.S.N. pp. 4-11, October 24, 2002]. Rodolfo Jundos, Jr. is the
husband of appellants older sister, Laarni.
65
Together, Jundos and Divina rushed to the second floor. As the place was dark, they
switched on the light and there they saw Ling-ling (Lorelyn Pacubas) flat on her back on
the floor almost naked with arms and legs open, her panty and shorts down to her ankle
and t-shirt pulled up above the breast with blood on the right breast. They tried to wake up
Ling-ling but the latter was already dead. Rodolfo Jundos, Jr. was shocked at what he
saw. Divina got hysterical and repeatedly told Arlene Gorospe what happened (T.S.N.,
supra, pp. 11-14). It did not take long before policemen from the Southern Command
(SOCO) arrived.
That same morning Rodolfo Jundos, Jr. gave his statement before PO2 Fernando Aguilan
(Exh. C, p. 150 Records) and so did Divina Gorospe Pascual (Exh. D, p. 151). Arlene
Gorospe likewise executed his Sinumpaang Salaysay that same day, December 25, 2000,
before Police Inspector Efren Pascua Jugo. (Exh. B, p. 149, Records) It was this witness
Arlene Gorospe who prepared the sketch (Exh. A, p. 148, Records). Later in (sic) that
fateful morning, police investigators appeared in (sic) the scene of the incident and took
pictures of the place and the victim while still lying on the floor (Exhs. E, E-1 to E-7 and F-
1 to F-5 xxx, p. 152, Records).
After proper police investigation and coordination, the victim, Lorelyn Pacubas, was
brought to the PNP Crime Laboratory, for autopsy and the examination of the blood found
in the place of the incident (Medico Legal Report No. S 056 00, Exh. M, p. 162, Records).
The printed underwear with suspected seminal stains was likewise examined. Medico-
Legal Report No. R-007-00 (Exh. N, p. 163, Records) reveal absence of semen. In
Medico-Legal Report No. M 932 00 (Exh. O, p. 164, Records), it was determined that the
cause of death was asphyxia by smothering. The same report gave the following
postmortem findings on the injuries sustained by the victim:
POSTMORTEM FINDINGS
Fairly developed, fairly nourished, female cadaver in rigor mortis with postmortem lividity at
the dependent portions of the body. Conjunctivae are pale. Lips and nailbeds are cyanotic.
HEAD
1) Lacerated wound, upper lip, measuring 0.8 x 0.5 cm, along the anterior midline.
2) Contusion, right cheek, measuring 5 x 4 cm, 7 cm from the anterior midline.
TRUNK
1) Contusion, right pectoral region, measuring 3 x 2 cm, 11 cm from the anterior
midline.
Lacerated wound, right nipples, measuring 0.6 x 0.1 cm.
Contusion, right pectoral region, measuring 5 x 4 cm, 10 cm from the anterior
midline.
Contusion, sternal region, measuring 3 x 1 cm, along the anterior midline.
Contusion, left inguinal region, measuring 5 x 3.5 cm, 10 cm from the anterior
midline.
The stomach is full of partially digested food particles.
EXTREMITY
Contusion, proximal 3rd of the right forearm measuring 4 x 2 cm, 4 cm lateral to its
posterior midline.
Contusion, right ring finger, measuring 0.5 x 0.3 cm.
The larynx, trachea and esophagus are markedly congested and cyanotic with
petechial hemorrhages.
xxx xxx xxx
There is abundant growth of pubic hair, labia majora are full, convex and co-
aptated with pinkish brown labia minora presenting in between. On separating the
same disclosed a fleshy type hymen with deep healed lacerations at 3, 6 and 9
oclock positions with an abraded posterior fourchette, measuring 1 x 0.4 cm.
Vaginal and peri urethral smears are POSITIVE for spermatozoa.
 66
xxx xxx xxx Two (2) questions present themselves for resolution in this case. First, was the circumstantial
evidence presented against the accused-appellant sufficient for his conviction? Second, does
CONCLUSION: the result of the DNA examination entitle the accused-appellant to an acquittal?
We answer the first question in the affirmative.
Cause of death is Asphyxia by smothering. (p. 164, Records)
It is settled that in the special complex crime of rape with homicide, both the rape and the
with the corresponding location of the said wounds on the attached sketches of the head homicide must be established beyond reasonable doubt. [17] In this regard, we have held that
(Exh. P, p. 165, Records) and the human body in the anatomical sketch (Exh. Q, p. 166, the crime of rape is difficult to prove because it is generally unwitnessed and very often only
Records).[3] (Emphasis ours) the victim is left to testify for herself. It becomes even more difficult when the complex crime
of rape with homicide is committed because the victim could no longer testify. Thus, in crimes
Accused-appellant denied the charges against him. He alleged that on December 24, 2000, of rape with homicide, as here, resort to circumstantial evidence is usually unavoidable.[18]
he was drinking with Rodolfo Jundos, Jr. and the latters son outside their residence from
10:00 p.m. until 1:00 a.m. of December 25, 2000. When he came home, he had a fight with Considering that no one witnessed the commission of the crime charged herein, the weight of
his wife Divina Pascual (Divina) because the latter allegedly wouldnt permit him to go to a the prosecutions evidence must then be appreciated in light of the well-settled rule that an
friends house in Sta. Mesa, Manila, as he was already drunk. Nonetheless, so accused- accused can be convicted even if no eyewitness is available, as long as sufficient
appellant claims, he still went to Sta. Mesa and stayed at his friends house for more or less circumstantial evidence is presented by the prosecution to prove beyond doubt that the
six days.[4] Upon learning from his wife that Lorelyn Pacubas was raped and killed and that accused committed the crime. [19]
he was the suspect therein, he requested his wife to contact and coordinate with Major
Pealosa for his voluntary surrender. On cross-examination, accused-appellant admitted that Circumstantial evidence consists of proof of collateral facts and circumstances from which
he knew Lorelyn Pacubas was staying alone on the second floor of the house on that fateful the existence of the main fact may be inferred according to reason and common
night, as her two (2) other siblings had already gone home to the province.[5] Moreover, he experience. Under Section 4, Rule 133 of the Revised Rules of Court, circumstantial
[20]

admitted having called his wife on December 25, 2000, and was then told about the crime evidence is sufficient for conviction if the following requisites concur:
which happened to Lorelyn Pacubas and that he was the suspect thereof.[6] (a) there is more than one circumstance; (b) the facts from which the inferences are
Defense witness Carlito Santos (Carlito) corroborated accused-appellants testimony of derived have been established; and (c) the combination of all the circumstances is such
having stayed in his house for six (6) days. Carlito testified that at about 2:00 oclock in the as to warrant a finding of guilt beyond reasonable doubt.
early morning of December 25, 2000, accused-appellant arrived at his (Carlitos) house and Verily, for circumstantial evidence to be sufficient to support a conviction, all the
told the witness that he (accused-appellant) had a fight with his wife, Divina.[7] circumstances must be consistent with each other, consistent with the hypothesis that
Another defense witness, Aida Viloria-Magsipoc, forensic chemist of the National Bureau of accused is guilty and at the same time inconsistent with the hypothesis that he is innocent,
Investigation (NBI), testified on the result of the DNA analysis which she conducted on the and with every other rational hypothesis except that of guilt. Thus, a judgment of conviction
[21]

specimens submitted by the trial court consisting of the victims vaginal smear and panty. based on circumstantial evidence can be sustained only when the circumstances proved
According to her, no DNA sample from the suspect was present on the aforesaid form an unbroken chain which leads to a fair and reasonable conclusion pointing to the
specimens.[8] On cross-examination, she declared that based on DNA testing, she could not accused, to the exclusion of all others, as the culprit.
determine if a woman was raped or not. She further declared that in this case, it was possible Here, the circumstances testified to by the prosecution witnesses lead to the inevitable
that the stained vaginal smear prevented a complete and good result for the DNA profiling. conclusion that the accused-appellant is the author of the crime charged.
Upon being questioned by the court, the forensic chemist confirmed that DNA testing on the
subject specimens was inconclusive and that the result was not good, as the specimens The chain of events that led to the subject unfortunate incident was candidly narrated by
submitted, i.e., the stained vaginal smear and the dirty white panty, had already undergone Rodolfo Jundos, Jr. Said witness testified that on December 24, 2000 at 10:00 p.m., he,
serological analysis.[9] together with his family and other relatives, was preparing for their small celebration outside
the house; that accused-appellant (who appeared to be already drunk) was also there
In a decision dated March 11, 2004, the trial court rendered judgment, as follows:
[10]
together with his 2-year-old child; that accused-appellant stayed with them up to 1:00 a.m. of
WHEREFORE, finding accused, ALFREDO PASCUAL Y ILDEFONSO alias BOYET December 25; that during the course of his stay with the group, accused-appellant left twice
GUILTY beyond reasonable doubt of the crime of Rape with Homicide, under the to go inside the house but kept on coming back to continue drinking; that when accused-
circumstances prescribed in Article 266-A of the Revised Penal Code, as amended, appellant left for the third time, he did not come back anymore leaving him (Jundos) alone as
absent any modifying circumstance to aggravate or mitigate criminal liability, the court his son, Christopher, also left to go to some other place.[22] Some 20 minutes later, accused-
hereby sentences him to suffer the penalty of DEATH. appellants wife, Divina, asked him about the whereabouts of the accused-appellant and he
instructed her to look for her husband in several places. Having failed to locate accused-
He is also ordered to pay the heirs of the victim the amount of Php63,000.00 as actual appellant, Divina went back inside the house.[23] What transpired next can be gleaned from
damages; the amount of Php50,000.00 as moral damages; the amount of Php25,000.00 the following pertinent portions of Jundos testimony:
as exemplary damages; Php28,000.00 as burial expenses and the amount of
Php250,000.00 for loss of earnings. Additional actual expenses incurred not supported Q When you are still on that particular place where you are drinking alone,
by receipts are denied pursuant to Article 2199 of the Civil Code. do you remember any unusual incident that happened?
In so far as the charge of robbery is concerned, the same is hereby ordered
DISMISSED, it appearing that the valuables and other personal belongings of the victim A Yes sir.
are intact.
The accused is likewise ordered to pay the costs of the suit. Q What is that incident?

SO ORDERED.[11] A Nong umuwi na po si Divina sa kanila nong sinabi nya na napapagod na

The case was directly elevated to this Court for automatic review. However, in a sya, maya-maya po ay nakita ko si Divina na nag-tatatakbo, dumaan po
Resolution[12] dated July 26, 2005 and pursuant to our ruling in People v Mateo[13] the case doon sa harap ko at nag-tatatakbo patungong itaas po.
was transferred to the CA.
Q Itaas ng?
In its Decision[14] dated December 9, 2005, the CA affirmed with modification the trial courts
decision. Dispositively, the CA decision reads:
A Second floor sir.
IN VIEW OF ALL THE FOREGOING, the appealed decision is hereby AFFIRMED with
the modification that the heirs of Lorelyn Pacubas is further awarded the amount of
P100,000.00 as civil indemnity, in addition to the other damages in the lower courts xxx
judgment. Costs de officio.
SO ORDERED. Q And what happened after Divina went up stairs of the second floor?

In view of the foregoing, accused-appellant comes again to this Court for a final review of his
A Nakita ko po na naghahabulan si Divina at yong asawa nya si Alfredo
case.
Pascual.
In a Resolution[15] dated June 13, 2006, the Court required the parties to file their respective
supplemental briefs, if they so desired. In their respective Manifestations,[16] the parties Q Did you see where did they came from?
waived the filing of supplemental briefs and instead merely adopted their earlier briefs before
the CA.
 67
A `Hindi ko po nakita kong saan sila naggaling, ang nakita ko lang dito po Q What happened next?
sa gilid ko papuntang gate.
A `Nandon po sya sa loob ng kwarto, bukas po yong pinto, doon nakita ko
Q So, you see them coming out of that building and proceeding towards the po si Ling-Ling, yong biktima.
gate?
Q Where was the victim at the first time or instance that you saw her at that
A Yes sir. particular time?

Q And who was ahead? A At the floor sir.

A Alfredo Pascual sir. Q What was the physical appearance of the victim when you first saw her?

Q And what was Divina doing at that time? A When I first saw the victim she was lieing (sic) in the floor with open arms
(sic) and open legs and her short and panty was already loose off down
to her ankle and her (the) shirt is up.
A Shes chasing Alfredo Pascual.

Q Up to where?
Q Did you hear her saying something?

A `Nakataas po, labas ang kanyang didi at nakita ko pong may dugo sa
A Yes sir.
gilid.

Q What [did] she say?

Q Where did you find the blood?

A Humihingi po sya sa akin ng tulong, sabi nya po, kuya tulongan mo

A On her left side breast sir.
ako si Boyet kasi ang palayaw po ni Alfredo Pascual e Boyet.

Q On that particular instance, when heard Divina calling for help, was there
Q And what was your interpretation then when you heard her asking for
already light inside that house?
your help, this Divina, the wife of the accused?

A There was a light sir.

A `Ang pagkaintindi ko po na humihingi si Divina ng tulong, akala ko po
nagwala kasi lasing po, kaya humihingi po ng tulong yong asawa, kaya
(po) ako poy tumakbo doon at naki-nakipaghabol po sa kanila. Q Where was that light coming from?

Q And what happened next after that? A Came from the ceiling.

A `Tumakbo rin po ako at nakihabol rin ako sa kanila, pero nong nandoon Q Inside the room where Divina found the body of the victim?
na po ako sa kalsada, yong street po naming Ballesteros, nasa
kalagitnaan na po ako, nakita ko na po si Divina at sinalubong na po ako,
A Yes sir.
ang sabi sa akin, kuya hindi na maabutan kasi mabilis tumakbo tulungan
mo nalang ako, samahan mo ako, aakyat tayo sa taas kasi baka kung
anong ginawa nya don kay Ling-Ling, the victim in this case. xxx

Q So, what did you do when Divina ask for your assistance?
A `Sinamahan ko po, umakyat po kami sa second floor at nakita namin sa
second floor, madilim, parang walang sindi ang mga ilaw.
Q What was the condition of the door going inside the second floor when
you went up?
A Open sir.
Q And did you and Divina do when you were already (inside) in the second
floor?
Q When you first enter that room where you find the body of the victim
Lorelyn Bacubas, what was the condition of the room?
A `Nakita ko po na magulo yong kama tapos yong drawer na lagayan ng
mga damit kasi salamin po yong ibaba may mga basag po at may mga
patak ng dugo.
Q What else did you find?
A `May scissor po sa left side ng braso nya, sa gilid po.
xxx

A `Hinanap po nami yong mga switches, kasi ako po bihirang bihira po
akong makaakyat don kaya sabi ko kay Divina hanapin natin yong switch
kasi hindi ko kabisado rito, yon kinakapa po naming kong saan po yong
mga switches, habang kinakapa po naming yong mga switches tapos
pinupukpok ko po yong dingding tapos nag-tatawag po ako ng pangalan
ni Ling-Ling, Ling saan ka naroon.
Q What did you do when you saw the victim in this case already sprawled
on the floor?
A `Nung nakita na naming hindi na gumagalaw si Ling-Ling at ang
pagkaalam namin ay patay na, bumaba na po kami.

xxx
Q And then what happened next?

Q After you went down, what did you do next?

A `Yan po habang hinahanap po naming yong mga switches at kinakatok
po naming yong mga dingding bigla pong sumigaw si Divina na kuya
halika dito ng marining ko po na tinatawag yong pangalan ko e lumapit A `Pag-baba po namin ni Divina, tumakbo po kami don sa pinto, sa bahay
po ako kung saan sya naroon. po ng bayaw ko at humingi po kami ng tulong.

Q Who is your brother-in-law?
A Arleen Gorospe sir.
xxx
Q What did you do with Arleen Gorospe?
A `Pag-bukas po ng pinto, una pong pumasok si Divina at nag-
hysterical na nagsisigaw na Manang Rose, yong asawa po ni
Arleen Gorospe, si Ling-Ling ginahasa at pinatay ni Boyet.
Q And what next happened?
A `Sinalaysay po ni Divina, pero ako poy na shock at napaupo na lang ako
sa sopa, umakyat din po si Arleen sa taas at may tumawag na rin ng
pulis.[24] (Emphasis Ours)
Arlene Gorospe corroborated the testimony of Jundos that in the early morning of December
25, 2000, Jundos and the accused-appellants wife, Divina, knocked at his door to inform him Accused-appellant makes much of the result of the DNA analysis conducted by the NBI that
of the incident after which he immediately proceeded upstairs and saw the victim naked and his profile was not in the victims vaginal smear. Hence, he argues he is innocent of the crime
lifeless with her t-shirt pulled up.[25]
68
averments of accused-appellant, the former indisputably deserve more credence and
evidentiary weight.[36]
Thus, accused-appellants twin defenses of denial and alibi pale in the light of the array of
circumstantial evidence presented by the prosecution. Equally damning is accused-
appellants failure to prove with clear and convincing evidence that he was at another place
at the time the crime was committed or to demonstrate the impossibility of his presence at
the scene of the crime when the same was committed.
Denial is intrinsically a weak defense and must be supported by strong evidence of non-
culpability in order to be credible. Correspondingly, courts view the defense of alibi with
suspicion and caution, not only because it is inherently weak and unreliable, but also
because it can be fabricated easily. [37]
Furthermore, this Court cannot ignore the positive testimony on record that accused-
appellant was seen running away from the scene of the crime immediately before the
discovery thereof. If accused-appellant was as innocent as he claimed to be, he should have
immediately cleared himself of suspicion. Instead, accused-appellant stayed at his friends
house for six or seven days, despite having learned from his wife he was a suspect in the
crime. Undoubtedly, accused-appellants flight is an indication of his guilt or of a guilty mind.
Indeed, the wicked man flees though no man pursueth, but the righteous are as bold as a
lion.[38]
charged.

Prior to the discovery of her dead body, Jundos also testified that the victim was alone in her In People v Yatar, we held that in assessing the probative value of DNA evidence, courts
room on the second floor of the house.[26] This fact was known to accused-appellant who should consider, inter alia, the following factors: how the samples were collected, how they
admitted as much in his cross-examination.[27] Eduardo Velasco, who used to visit the sister were handled, the possibility of contamination of the samples, the procedure followed in
of the victim and have drinks with accused-appellant, testified that the latter confided to him analyzing the samples, whether the proper standards and procedures were [39] followed in
his love for the victim.[28] conducting the tests, and the qualification of the analyst who conducted the tests.

PO2 Fernando Aguilan and P/Insp. Russel Leysa testified that upon arrival at the place Here, while the DNA analysis of the victims vaginal smear showed no complete profile of the
where the subject incident happened on December 25, 2000 at about 2:30 a.m., they found accused-appellant, the same is not conclusive considering that said specimen was already
the lifeless body of the victim lying on the floor naked, with bloodstain on her clothes and stained or contaminated which, according to the forensic chemist, Aida Villoria-Magsipoc,
appearing lifeless.[29] The police also found at the scene of the crime the victims belongings deters a complete and good result for DNA profiling. She explained in her testimony that
scattered all over the place. generally, with the vaginal smear, they could see if there is a male profile in the smear.
However in this case, when they received the vaginal smear on the stained slide, the same
Dr. Felimon Porciuncula, who conducted the post-mortem examination on the cadaver of the had already undergone serological analysis. Hence, according to the chemist, the DNA
victim on the morning of December 25, 2000, testified that the victim died of asphyxia by testing conducted on the specimen subject of this case was inconclusive.[40] In light of this
smothering. The doctor also testified that apart from contusions, hymenal lacerations were flawed procedure, we hold that the result of the DNA examination does not entitle accused-
discovered on the body at 3, 6 and 9 oclock positions, but there is an abrasion or abrated appellant to an acquittal.
posterior meaning that the injury was fresh[30]or was inflicted right before the death of the
victim.[31] Dr. Porciuncula further testified that spermatozoa was found in the vagina of the Viewed in its entirety, the evidence in this case inevitably leads to the conclusion that
victim.[32] accused-appellant is guilty beyond reasonable doubt of the special complex crime of Rape
with Homicide.
Furthermore, the statements of accused-appellants wife, Divina, immediately after the fateful
incident all the more convince the Court as to accused-appellants guilt. Part of the res Rape with Homicide under Article 335 of the Revised Penal Code, in relation to Republic Act
gestae and admissible in evidence as an exception to the hearsay rule were Divinas (R.A.) 7659, provides that when by reason or on the occasion of the rape, a homicide is
utterances to Gorospe after seeing the dead and raped body of the victim, i.e., May nagyari committed, the penalty shall be death. However, in view of the subsequent passage of R.A.
sa itaas at galing doon si Boyet, and her subsequent narration of seeing the accused- No. 9346, entitled An Act Prohibiting the Imposition of the Death Penalty in the Philippines,
appellant going out of the victims room and running away therefrom.[33] which was signed into law on June 24, 2006, the Court is mandated to impose on the
accused-appellant the penalty of reclusion perpetua.
In People v Cantonjos[34] the Court held that:
We likewise affirm the CAs additional award of P100,000.00 as civil indemnity pursuant to
Res gestae utterances refer to those exclamations and statements made by either the current jurisprudence[41] that in cases of rape with homicide, civil indemnity in the amount of
participants, victims, or spectators to a crime immediately before, during, or after the P100,000.00 should be awarded to the heirs of the victim. As to moral damages, recent
commission of the crime, when the circumstances are such that the statements were jurisprudence allows the amount of P75,000.00 to be awarded in cases of rape with
made as a spontaneous reaction or utterance inspired by the excitement of the occasion homicide.[42] Thus, the P50,000.00 award given by the court below as moral damages should
and there was no opportunity for the declarant to deliberate and to fabricate a false be increased to P75,000.00. The P25,000.00 exemplary damages, however, should be
statement. A declaration is deemed part of the res gestae and thus admissible in deleted because under Article 2230 of the New Civil Code, exemplary damages in criminal
evidence as an exception to the hearsay rule when the following requisites concur: (1) cases may be imposed when the crime was committed with one or more aggravating
the principal act, the res gestae, is a startling occurrence; (2) the statements were made circumstances, and there is none in this case. The rest of the awards given by the trial court
before the declarant had time to contrive or devise; and (3) the statements must concern are affirmed.
the occurrence in question and its immediately attending circumstances.
WHEREFORE, the appealed decision of the CA in CA-G.R. CR HC No. 01493 is
The aforementioned requisites are present in this case. The res gestae or the startling event hereby AFFIRMED with MODIFICATION. Accused-appellant is found guilty beyond
is the rape and death of the victim. The statements of Divina to Gorospe were made reasonable doubt of the crime of rape with homicide and is hereby sentenced to suffer the
spontaneously and before she had the time to contrive or devise such declarations, and said penalty of reclusion perpetua and to pay the heirs of the victim, Lorelyn Pacubas, the
statements all concerned the occurrence in question or the immediately attending amounts of P100,000.00 as civil indemnity, P75,000.00 as moral damages, P63,000.00 as
circumstances thereof. actual damages, P28,000.00 as burial expenses and P250,000.00 for loss of earnings.
In the absence of evidence that the witnesses for the prosecution were actuated by improper No costs.
motive, the presumption is that they were not so actuated and their testimonies are entitled to
full faith and credit.[35] SO ORDERED.

Here, accused-appellant claimed that at 2 oclock on the morning of December 25, 2000, he
was at his friends house in Sta. Mesa, having left his house in Mandaluyong because of a
quarrel with his wife, Divina. Prosecution witness Jundos testimony, however, positively
placed the accused-appellant near the scene of the crime at the same time on December 25,
2000. Surely, between the positive assertions of the prosecution witness and the negative