STATE V BELL evidence was not material or relevant, that it was too remote from the date of the
evidence was not material or relevant, that it was too remote from the date of the robbery
339 S.W.2d 783 (1960)
STATE of Missouri, Respondent, v. William Arthur BALL, Appellant.
No. 47575.
Supreme Court of Missouri, En Banc.
November 14, 1960.
Dewey S. Godfrey, St. Louis, for appellant.
*784 John M. Dalton, Atty. Gen., Richard R. Nacy, Jr., Sp. Asst. Atty. Gen., for
respondent.
BARRETT, Commissioner.
A jury has found William Arthur Ball guilty of robbery in the first degree; the jury also
found prior felony convictions and, therefore, a mandatory sentence of life imprisonment
was imposed. V.A.M.S. 560.120, 560.135, 556.280.
The facts, briefly, as the jury could find them were that about 2:30 in the afternoon of
October 15, 1958, two colored men, one of them tall and the other short, entered the
Krekeler Jewelry Store at 1651 South 39th Street. The taller man spent ten or fifteen
minutes selecting and buying a cigarette lighter, he also talked about buying and looked
at watches and rings. As the taller man looked at jewelry and made his purchase the
shorter man looked in the cases and moved about in the store. Later in the day, about
5:50, as John Krekeler was placing rings and watches in the safe preparatory to closing
the store two men entered, one of them tall and the other short, and Krekeler
immediately recognized them as the two men who had been in the store at 2:30,
especially the taller man. He recognized the taller man's narrow-brimmed, tall hat, brown
jacket, gray stirt and particularly a scar on his face. The shorter man started to walk
behind the counter and as Krekeler intercepted him he "drew a long barreled blue .38
and stuck it in my face." Both men followed Krekeler, the shorter man with the gun in "his
back," directing him to the watch repair department and finally into the rest room in the
rear of the store. He was told not to turn around and stood facing the wall. He could hear
jewelry being dumped into a bag and the "jingle" of the cash register. The two men left
Krekeler in the rest room and after hearing the door slam he called the police. The two
men had taken watches and rings of the stipulated value of $4,455.21 and $140 in cash
from the register. Krekeler identified the appellant from pictures, and three weeks later,
after his capture, in a hospital and upon the trial positively identified him as the taller of
the two holdup men.
In his motion for a new trial one of the claims is that there was no direct evidence of an
injury or any evidence to show that Krekeler was put "in fear of some immediate injury to
his person," one of the essential elements of robbery in the first degree. V.A.M.S.
560.120. Krekeler did not affirmatively testify that he was in fear but he could well
apprehend injury if he did not comply with their requests and in the circumstances the
jury could reasonably find "the fear" contemplated in the statute. 77 C.J.S. Robbery 16,
p. 459; State v. Thompson, Mo., 299 S.W.2d 468, 474. The element of fear being a
reasonable inference from the evidence, the facts and circumstances support and
warrant the finding of robbery in the first degree. State v. Eckenfels, Mo., 316 S.W.2d
532.
Another of the appellant's sufficiently preserved claims in his motion for a new trial
(V.A.M.S. 547.030; Supreme Court Rule 27.20, V.A.M.R.) has to do with his arrest and
the testimony of the two arresting officers. On November 4, 1958, about three weeks
after the robbery, police officers in a squad car saw Ball walking on Easton Avenue. The
officers stopped him, told him that they were officers and that he was under arrest. As
officer Powell faced and searched Ball officer Ballard "holstered" his gun and attempted
"to cuff" him. Ball shoved Powell over and ran down Easton Avenue, the officers ran after
him, Powell being closest. Powell yelled, "Halt Ball, you're under arrest," and fired one
shot high in the air but Ball continued running and Powell fired four more shots, two at his
legs, one at his buttocks, and he finally fell from a bullet in his back. It is claimed that this
to indicate a consciousness of guilt and since it was of course prejuducial *785 that he is
entitled to a new trial. But unexplained flight and resisting arrest even thirty days after the
supposed commission of a crime is a relevant circumstance (State v. Duncan, 336 Mo.
600, 611, 80 S.W.2d 147, 153), the remoteness of the flight goes to the weight of the
evidence rather than to its admissibility. 20 Am.Jur., Sec. 293, p. 274.
When Ball was finally subdued and arrested the officers took from his person and
impounded a brown felt hat, "a brownish" windbreaker type jacket, trousers, gray shirt
and shoesthese were exhibits one and two, Ball admitted that they belonged to him
although his evidence tended to show that he had purchased the jacket after October 15.
In identifying Ball, in addition to the scar on his face, Krekeler was impressed with and
remembered the brown ensemble, particularly the "tall brown hat." These items were of
course relevant and admissible in evidence and there is no objection to them. State v.
Johnson, Mo., 286 S.W.2d 787, 792. The appellant objects, however, in his motion for a
new trial that a police officer was permitted to testify that $258.02 in currency and two
pennies were taken from his person. It is said that the introduction of these exhibits was
"immaterial and irrelevant, neither tended to prove nor disprove any of the issues
involved in this case; that said money as seized at the time of the arrest was neither
identified by Mr. Krekeler nor by any other person as the money which was allegedly
stolen from the A. L. Krekeler & Sons Jewelry Company on the 15th day of October,
1958; that said evidence was considered by this jury to the prejudice of this defendant
convincingly."
The circumstances in which this evidence was introduced were these: After the clothes
were identified and introduced as exhibits one and two the prosecuting attorney inquired
of officer Powell, "Did you also seize his personal effects?" Defense counsel immediately
objected to any testimony relating to personal effects found on the defendant "at the
time." The court overruled the objection and state's counsel inquired, "Well Officer, what
personal effects were seized?" Defense counsel, evidently knowing and anticipating,
objected "to any testimony relevant (sic) to any personal effects seized upon this
Defendant at the time he was arrested by reason of the fact it is immaterial and irrelevant
and tends to neither prove nor disprove any facts involved and ask that the jury be
discharged and a mistrial be declared." The court overruled the objection and the officer
said, "Ball's personal effects consisted of two hundred and fifty eight dollars and two
cents in cash, with the denominations of the bill(s), two one hundred dollar bills, a
twentytwo twenties, a ten, a five, three ones and two pennies. He had a ladies ring and a
man's wristwatch. He had a crusifixion along with a small pen knife and a black leather
wallet. Maybe one or two other personal articles." All of these items were then marked as
exhibits, from three to nine, offered in evidence and described by the officer, exhibit three
being the bills and pennies comprising the $258.02. According to the officer Mr. Krekeler
was unable to identify any of these articles or the money as having come from the
jewelry store robbery and there is no objection in the motion to any of the items other
than the money and some of them were obviously not prejudicial, for example the keys, a
small penknife and wallet.
Unlike the roll of dimes in State v. Hampton, Mo., 275 S.W.2d 356, the testimony as to
the $258.02 was not offered in proof of the substantive fact of the crime. In that case the
five-dollar roll of dimes wrapped in a roll of green paper was found on the defendant the
same day of the burglary and while the fact was a circumstance admissible in evidence it
was held to not constitute substantive evidence inconsistent with the hypothesis of the
defendant's innocence of burglary. In State v. Gerberding, Mo., 272 S.W.2d 230, there
was no timely or proper objection to the proof but $4,000 was taken in a robbery and
*786 the appellant had $920 in currency in his topcoat pocket when captured the day of
the robbery. The proof of the money here was evidently on the theory that Ball did not
have or was not likely to have such a sum of money on his person prior to the
commission of the offense. 1 Wharton, Criminal Evidence, Sec. 204, p. 410. As to this
the facts were that he had been out of the penitentiary about eight months and the
inference the state would draw is that he had no visible means of support and no
employment and could not possibly have $258.02 except from robberies. Of course,
there was no such proof and Ball claimed that he had worked intermittently for a
custodian or janitor of an apartment house and that he had won the $258.02 in a series
of crap games at a named place. Not only was Krekeler unable to identify the money or
any of the items on Ball's person as having come from the jewelry store so that in fact
they were not admissible in evidence (annotation 3 A.L.R. 1213), the charge here was
that Ball and his accomplice took jewelry of the value of $4,455.21 and $140 in cash from
the cash register. There was no proof as to the denomination of the money in the cash
register, it was simply a total of $140. Here nineteen days had elapsed, there was no
proof that Ball had suddenly come into possession of the $258.02 (annotation 123 A.L.R.
119) and in all these circumstances "The mere possession of a quantity of money is in
itself no indication that the possessor was the taker of money charged as taken, because
in general all money of the same denomination and material is alike, and the hypothesis
that the money found is the same as the money taken is too forced and extraordinary to
be receivable." 1 Wigmore, Evidence, Sec. 154, p. 601. In the absence of proof or of a
fair inference from the record that the money in Ball's possession at the time of his arrest
came from or had some connection with the robbery and in the absence of a plain
showing of his impecuniousness before the robbery and his sudden affluence (State v.
Garrett, 285 Mo. 279, 226 S.W. 4), the evidence was not in fact relevant and in the
circumstances was obviously prejudicial for if it did not tend to prove the offense for
which the appellant was on trial the jury may have inferred that he was guilty of another
robbery. State v. Bray, Mo. App., 278 S.W.2d 49; People v. Orloff, 65 Cal. App. 2d 614,
620-621, 151 P.2d 288; annotation 123 A.L.R. loc. cit. 132-134 and compare the facts
and circumstances in State v. Garrett, supra. The admission of the evidence in the
circumstances of this record infringed the right to a fair trial and for that reason the
judgment is reversed and the cause remanded.
PER CURIAM.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court en banc.
WESTHUES, EAGER, STORCKMAN and HOLLINGSWORTH, JJ., concur.
HYDE, C. J., and LEEDY and DALTON, JJ., dissent.
EN BANC
[A.M. No. MTJ-96-1110. June 25, 2001]
CONG. MANUEL N. MAMBA, M.D. ATTY, FRANCISCO N. MAMBA, JR., HON.
GUILLERMO SUMIGAD, HON. CALIXTO GENOVEZA, HON. MARTIN
SORIANO, HON. LOURDES FAUSTO, HON. LORENZO FERMIN, HON.
ADORACION RAQUINIO, HON. LEONIDES FAUSTO, HON. DIOGENES
BALIGOD, HON. LORETO MABBORANG, HON. PETER SY, HON. NICCOLO
MAMBA, LORETO MAMBA, JUAN TAGUBA, DOMINGO CAMARAT,
SEVERINO BUCAYU, CASIANO CHAVENTE, ILLUMINADO BALIGOD,
FELICIANO SERRANO, TEOFILO URMA, REMIGIO DE LA CRUZ,
ABELARDO BAUIT, MARIANO MIRANDA, JR., ROMULO SERAFICA,
CARLOS MANANGUIT, ERNESTO FERMIN, ROGELIO FERNANDEZ,
ERNESTO CENABRE, TRINIDAD BALUNSAT, MIGUEL PASON, GIL
BALORAN, DOMINGO CALLUENG, BERNARDO BENITO, JUAN
TURINGAN, MARCELINO CORPUZ, IGNACIO PASCUA, JR., LEONIDES
FAUSTO, TEODORICO PASTOR, DOMINADOR CORSINO, GENEROSO
AGLAUA, ZACARIAS MAGGAY, SIMEON BENZON, PATRICIO TAGUIAM,
LUCAS TAGUINOD, MA. GLORIA G. BALIGOD, LAURO N. FAUSTO,
EDGAR AGGABAO, RODOLFO CARDENAS, TERESITA ESPINOSA,
PACIFICO C. BINULUAN, ROGELIO SORIANO, ARTURO MAMBA, DR.
EXSUPERIOR YUAGA, VIVIAN DE GUZMAN, EX-CONG. FRANCISCO K.
MAMBA, CRISTINA MAMBA, EDWIN LIU, PABLO DANGA, ALICE LOA,
VICENTE TOLENTINO, NUMERIANO MACAPULAY, ROLLY
SEDANO, complainants, vs. JUDGE DOMINADOR L. GARCIA, MTC, TUAO,
CAGAYAN, respondent.
DECISION
PER CURIAM:
This is a resolution, which is more accurately a manifesto or a petition of concerned
citizens of Tuao, Cagayan, denouncing certain acts of Judge Dominador L. Garcia,
Municipal Trial Court, Tuao, Cagayan, in connection with his handling of Criminal Case
No. 399, entitled People vs. Renato Bulatao. The complainants are then Representative
of the Third District of Cagayan, the mayor and vicemayor, ten (10) members of the
Sangguniang Bayan, thirty-two (32) barrio captains, ten (10) LGU department heads of
Tuao, Cagayan, and eight (8) heads of non-governmental organizations or NGOs in the
municipality of Tuao.
The resolution, dated November 4, 1996, was presented to this Court. It was
adopted at an assembly led by Rep. Manuel N. Mamba which picketed the municipal trial
court on that day.[1]The "resolution" was treated as an administrative complaint and
respondent Judge Dominador L. Garcia was required to answer. The matter was referred
to Executive Judge Orlando D. Beltran, Jr. of the Regional Trial Court of Tuao, Cagayan,
for investigation, report, and recommendation.[2]
Thereafter, an investigation was held during which the affidavits and sworn
statements of NBI Special Investigator Ablezer Rivera, the joint affidavit of NBI agents,
Raul A. Ancheta and Paul D. Rivera, the sworn statement of the accused in Criminal
Case No. 699, Renato Bulatao, and the testimonies of Abner P. Cardenas, clerk of court,
MTC, Tuao, Cagayan and Tomas Latauan, Jr., interpreter of the same court, were
presented. The gist of the evidence for the complainants is as follows:
On August 23, 1996, a complaint for violation of Presidential Decree No.1866
(illegal possession of firearms) was filed against a certain Renato Bulatao by the
Cagayan Provincial Police Command before the sala of respondent Judge Dominador L.
Garcia of the Municipal Trial Court, Tuao, Cagayan.[3] Respondent set the preliminary
investigation on September 4, 1996, but the same was subsequently postponed and
reset to October 23, 1996 as respondent was not present, although the complaining
officer, P/Sr. Inspector Danny F. Salvador, appeared in court. On October 23, 1996, the
preliminary investigation was again reset to October 30, 1996. On October 29, 1996, the
accused, Renato Bulatao, complained to the NBI that at the scheduled preliminary
investigation on September 4, 1996, P/Sr. Inspector Salvador demanded
P30,000.00 from him in consideration of the withdrawal of the criminal case against
him. According to Bulatao, the demand was reiterated by Salvador and respondent judge
on October 23, 1996. As Bulatao told them that he could not afford it, the amount was
reduced to P6,000.00.
Based on Bulataos report, the NBI set out to entrap Salvador and respondent
judge. The NBI gave Bulatao 12 pieces of P500.00 marked bills amounting to
P6,000.00, which the latter would give to Salvador and respondent the next day.[4]
Accordingly, at about 7 o'clock in the morning of the following day, October 30,
Bulatao met the NBI operatives in the house of Francisco Mamba, Sr., former
representative of the 3rd District of Cagayan, where the entrapment was
planned. Bulatao was given a tape recorder to record his conversation with whoever will
receive the money. At 9 a.m., Bulatao went to the Municipal Trial Court and waited for his
case to be called. At 10:30 a.m., respondent went out of his chambers and talked to
SPO2 Jonathan Santos and SPO4 Carlos Poli, representatives of P/Sr. Inspector
Salvador in the preliminary investigation. Respondent then called Bulatao and led him
and the two police officers to the office of the MTC court personnel. Inside, respondent
asked Bulatao if he had the money with him. When he answered in the affirmative,
respondent took them to his chambers and left them there as he proceeded to his
sala. After handing the money to the police officers, Bulatao went out of respondent's
chambers. Upon his signal, the NBI operatives waiting outside respondent's court then
rushed to the judge's chambers and arrested the two police officers after recovering 11
pieces of P500.00 marked bills in their possession.[5]
After the matter was referred by this Court to Executive Judge Orlando Beltran for
investigation, the latter scheduled several hearings for the reception of evidence for the
respondent. The records show that hearings were set on different dates (December 10,
1997, January 30, 1998, February 10, 1998, March 3, 1998, March 10, 1998, September
10, 1998, October 9, 1998, November 11, 1998, January 5, 1999, February 9, 1999,
March 4, 1999, and April 5, 1999), but respondent did not appear despite due
notice. Accordingly, he was deemed to have waived the right to present evidence and the
case was submitted for decision. Hence only his counter-affidavit was considered, in
which respondent claimed that it was Bulatao who asked permission to talk to the two
police officers. He denied that he took the three to his chambers.[6]
On the basis of these facts, the Investigating Judge made the following
recommendation:
"The foregoing facts indisputably show that the respondent Judge allowed the use of his
chambers by the two (2) police officers SPOII Jonathan Santos and SPOIV Carlos Poli
and Renato Bulatao, the accused in the criminal case for illegal possession of firearms,
so that they could talk about the "settlement" of Bulatao's case which was then pending
preliminary investigation by the respondent Judge. Although the two (2) witnesses, Abner
Cardenas and Tomas Latauan, Jr., claimed that they did not hear the subject of the
conversation between Bulatao, on one hand, and the two (2) policemen and the
respondent Judge Dominador L. Garcia, on the other, before the three first-named
persons went inside the chambers of the respondent Judge, it is not difficult to conclude
that they must have talked about the criminal case of Bulatao and its "settlement." For if
the subject-matter of their conversation were other than said "settlement" there appears
no reason or purpose to allow the policemen and the accused to go inside the judge's
chambers and there to continue their conversation. Simply stated, the respondent judge
allowed the two (2) policemen and the accused Renato Bulatao to use his chambers so
that they could consummate the arrangements for the dismissal of the case, particularly
the payment of the sum of money being demanded as consideration for such dismissal.
"In this connection, the undersigned Investigating Judge cannot help but refer to the
taped conversation between the two (2) policemen and Renato Bulatao inside the
chamber of the respondent Judge. A portion of the translated dialogue between Poli and
Bulatao, which was in Ilocano, tends to show that the P6,000.00 pay-off handed by
Bulatao to the policemen was not intended for the respondent Judge but solely for the
policemen and their superior, P/Sr. Inspector Salvador. However, it is not easy to
disregard the implication obvious from the said conversation that the respondent Judge
was privy to the entire transaction. SPOIV Poli pointedly told Bulatao "to take care of the
Judge" which implies that the Judge knew of the pay-off being made and was willing to
abide by the "deal" provided he would be "taken care of" by Bulatao.
"Such acts of the respondent Judge are improper, to say the least. He, therefore, violated
the duty of every Judge to uphold the integrity of the judiciary and to avoid impropriety
and the appearance of impropriety in all activities. (Mortel vs. Leido, Jr. 44 SCAD 567). It
cannot be over-emphasized that a judge's official conduct should be free from the
appearance of impropriety, and his personal behavior, not only upon the bench and in the
performance of official duties but also in his every day life, should be beyond reproach.
(Marcos, Sr. vs. Arcangel, 72 SCAD 1). Canon 2 of the Code of Judicial Conduct enjoins
judges to avoid not just impropriety in their conduct but even the mere appearance of
impropriety. This is true not only in the performance of their official duties but in all their
activities, including their private life. They must conduct themselves in such a manner
that they give no ground for reproach. (Pedro San Juan vs. Judge Lore V. Bagalsera,
RTC, BR. 23, Naga City, A. M. No. RTJ-97-1395, December 22, 1997). In this case, the
acts of the respondent judge were clearly improper as he facilitated, if not participated in,
the obviously unauthorized/illegal transaction between the two (2) police officers and the
accused Renato Bulatao for the settlement/dismissal of the latter's criminal case, in
consideration of a sum of money, particularly since the offense charged against Bulatao
is a grievous one and that it is one which is not allowed by law to be compromised.
"In view of all the foregoing, the undersigned Investigating Judge respectfully
recommends that the respondent Judge Dominador L. Garcia be found guilty of improper
conduct and be punished accordingly.[7]"
The Investigating Judge's reliance on the tape-recorded conversation between
Bulatao and the two police officers is erroneous. The recording of private conversations
without the consent of the parties contravenes the provisions of Rep. Act. No. 4200,
otherwise known as the Anti-Wire Tapping Law, and renders the same inadmissible in
evidence in any proceeding.[8] The law covers even those recorded by persons privy to
the private communications, as in this case.[9] Thus, the contents of the tape recorder
cannot be relied upon to determine the culpability of respondent judge.
In all other respects, however, the findings of the Investigating Judge are in
accordance with the evidence. We hold, however, that respondent judge is guilty not just
of improper conduct but of serious misconduct. Serious misconduct is such conduct
which affects a public officer's performance of his duties as such officer and not only that
which affects his character as a private individual. For serious misconduct to warrant a
dismissal from the service, there must be reliable evidence showing that the judicial acts
complained of were corrupt or inspired by an intention to violate the law. It must (1) be
serious, important, weighty, momentary, and not trifling; (2) imply wrongful intention and
not mere error of judgment; and (3) have a direct relation to and be connected with the
performance of his official duties.[10]
In the case at bar, it is clear that the crime of bribery was committed. Although the
evidence may not be sufficient to support a conviction in a criminal case, it is adequate
for the purpose of these proceedings. The standards of integrity required of members of
the Bench are not satisfied by conduct which merely allows one to escape the penalties
of the criminal law.[11] In an administrative proceeding, such as this case, only substantial
evidence, or that amount of relevant evidence which a reasonable mind might accept as
adequate to support a conclusion, is required.[12]
To constitute bribery, the following must be shown: (1) the offender is a public
officer within the scope of Art. 203; (2) the offender accepts an offer or a promise or
receives a gift or present by himself or through another; (3) such offer or promise is
accepted, or gift received by the public officer, (a) with a view to committing some crime;
(b) in consideration of the execution of an act which does not constitute a crime, but
which is unjust; or (c) to refrain from doing something which it is his official duty to do;
and (4) the act which he agrees to perform is connected with the performance of his
official duties.[13] From the records, it is evident that P/Sr. Inspector Salvador, a public
officer, solicited money from Bulatao in consideration of the withdrawal of the case
against the latter. The former categorically told the latter that he would withdraw the
criminal case against Bulatao if Bulatao gives him P30,000.00, which was later lowered
to P6,000.00. The fact that two of his men came for the preliminary investigation and,
without hesitation, followed respondent judge to his chambers after hearing that Bulatao
had the money, bears out Bulatao's allegations. Although these circumstances do not
show conclusively that respondent judge was privy to the crime of bribery, there is
substantial evidence showing that he was at least an accomplice to the crime who
cooperated in the execution of the offense by previous or simultaneous acts.[14] The
following circumstances, as corroborated by the report of the NBI and the testimonies of
two employees of the MTC, who were disinterested witnesses, show that respondent
judge knowingly and voluntarily cooperated with P/Sr. Inspector Salvador in
consummating the crime:
 (1) On the day of the entrapment, respondent judge asked Bulatao if he had the
money, and when he received an affirmative answer, he took Bulatao and the two police
officers to his chambers, told the police officers to receive whatever Bulatao would give
them,[15] and then left; and
(2) When Bulatao left respondent's chambers and gave the signal to the NBI
operatives waiting outside, the marked bills were found by the agents in the possession
of SPO2 Jonathan Santos, as the latter was leaving the chambers of respondent judge
with SPO4 Carlos Poli. As the Investigating Judge observed, respondent willingly allowed
his chambers to be used for the consummation of the illegal transaction. The actions of
respondent implies a wrongful intention to commit an unlawful act while in the
performance of his official duties.
Canon 2 of the Code of Judicial Conduct enjoins judges to avoid not only
impropriety but even the appearance of impropriety in all their conduct. This includes not
taking an undue interest in the settlement of criminal cases pending before them as this
may compromise the integrity and impartiality of their office.[16] As the visible
representation of the law and of justice, their conduct must be above reproach and
suspicion.[17] By acting as an accomplice to P/Sr. Inspector Salvador, respondent judge
violated not only the law but also the Code of Judicial Conduct.
Nor does the fact that respondent committed misconduct during a preliminary
investigation, which is non-judicial in character, exempt him from the disciplinary power of
this Court as the conduct of a preliminary investigation is only an addition to his judicial
functions.[18]
In Cabrera vs. Pajares,[19] where the payment of the money to respondent judge in
his chambers was witnessed by an NBI agent, this Court ordered his dismissal from the
service. Likewise, in Court Administrator vs. Hermoso,[20] where the judge received
money from a party to a case pending before his sala and was entrapped by an NBI
agent, this Court ordered his dismissal. In addition, the erring judge is liable to the
forfeiture of his leave credits and retirement benefits and his dismissal shall be with
prejudice to reemployment in any branch of the government or any of its agencies or
instrumentalities, including government-owned and controlled corporations, as provided
by Section 9, Rule 14 of the Omnibus Rules Implementing Book V of Executive Order
No. 292 (Administrative Code of 1987) and our current rulings.[21]
Respondent judge was previously convicted in two administrative cases filed before
this Court. In A.M. No. MTJ-91-616, entitled "Clodualdo Escobar vs. Garcia," the Court, in
a resolution dated September l, 1992, found respondent guilty of palpable ignorance of
Rule 114, section 8 resulting in the denial of due process to the prosecution in a criminal
case. Respondent was fined an amount equivalent to 15 days salary with warning that a
repetition of the same would be dealt with more severely. In another case, A.M. No. MTJ-
95-1049, entitled Eloisa Bernardo v. Garcia, the Court, in a resolution dated June 28,
1995, found respondent guilty of deliberately delaying his decision in a civil case and
falsifying certificates of service. He was reprimanded and ordered to pay a fine of
P5,000.00 with warning that a repetition of the same or similar acts will be dealt with
more severely.
WHEREFORE, the Court finds respondent Judge Dominador L. Garcia guilty of
serious misconduct and accordingly orders his DISMISSAL from the service and the
forfeiture of his leave credits and retirement benefits, with prejudice to reemployment in
any branch of the government or any of its agencies or instrumentalities, including
government-owned and controlled corporations.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon,
Jr., and Sandoval-Gutierrez, JJ., concur.
EN BANC
[G.R. No. 135882. June 27, 2001]
LOURDES T. MARQUEZ, in her capacity as Branch Manager, Union Bank of the
Philippines, petitioners, vs. HON. ANIANO A. DESIERTO, (in his capacity
as OMBUDSMAN, Evaluation and Preliminary Investigation Bureau, Office
of the Ombudsman, ANGEL C. MAYOR-ALGO, JR., MARY ANN CORPUZ-
MANALAC and JOSE T. DE JESUS, JR., in their capacities as Chairman
and Members of the Panel, respectively, respondents.
DECISION
PARDO, J.:
In the petition at bar, petitioner seeks to--
a. Annul and set aside, for having been issued without or in excess of jurisdiction or
with grave abuse of discretion amounting to lack of jurisdiction, respondents order
dated September 7, 1998 in OMB-0-97-0411, In Re: Motion to Cite Lourdes T.
Marquez for indirect contempt, received by counsel of September 9, 1998, and
their order dated October 14, 1998, denying Marquezs motion for reconsideration
dated September 10, 1998, received by counsel on October 20, 1998.
b. Prohibit respondents from implementing their order dated October 14, 1998, in
proceeding with the hearing of the motion to cite Marquez for indirect contempt,
through the issuance by this Court of a temporary restraining order and/or
preliminary injunction.[1]
The antecedent facts are as follows:
Sometime in May 1998, petitioner Marquez received an Order from the
Ombudsman Aniano A. Desierto dated April 29, 1998, to produce several bank
documents for purposes of inspection in camera relative to various accounts maintained
at Union Bank of the Philippines, Julia Vargas Branch, where petitioner is the branch
manager. The accounts to be inspected are Account Nos. 011-37270, 240-020718, 245-
30317-3 and 245-30318-1, involved in a case pending with the Ombudsman entitled,
Fact-Finding and Intelligence Bureau (FFIB) v. Amado Lagdameo, et. al. The order
further states:
It is worth mentioning that the power of the Ombudsman to investigate and to require the
production and inspection of records and documents is sanctioned by the 1987
Philippine Constitution, Republic Act No. 6770, otherwise known as the Ombudsman Act
of 1989 and under existing jurisprudence on the matter. It must be noted that R. A. 6770
especially Section 15 thereof provides, among others, the following powers, functions
and duties of the Ombudsman, to wit:
xxx
(8) Administer oaths, issue subpoena and subpoena duces tecum and take testimony in
any investigation or inquiry, including the power to examine and have access to bank
accounts and records;
(9) Punish for contempt in accordance with the Rules of Court and under the same
procedure and with the same penalties provided therein.
Clearly, the specific provision of R.A. 6770, a later legislation, modifies the law on the
Secrecy of Bank Deposits (R.A. 1405) and places the office of the Ombudsman in the
same footing as the courts of law in this regard.[2]
The basis of the Ombudsman in ordering an in camera inspection of the accounts
is a trail of managers checks purchased by one George Trivinio, a respondent in OMB-0-
97-0411, pending with the office of the Ombudsman.
It would appear that Mr. George Trivinio, purchased fifty one (51) Managers Checks
(MCs) for a total amount of P272.1 Million at Traders Royal Bank, United Nations Avenue
branch, on May 2 and 3, 1995. Out of the 51 MCs, eleven (11) MCs
in the amount of P70.6 million, were deposited and credited to an account
maintained at the Union Bank, Julia Vargas Branch.[3]
On May 26, 1998, the FFIB panel met in conference with petitioner Lourdes T.
Marquez and Atty. Fe B. Macalino at the banks main office, Ayala Avenue, Makati City.
The meeting was for the purpose of allowing petitioner and Atty. Macalino to view the
checks furnished by Traders Royal Bank. After convincing themselves of the veracity of
the checks, Atty. Macalino advised Ms. Marquez to comply with the order of the
Ombudsman. Petitioner agreed to an in camera inspection set on June 3, 1998.[4]
However, on June 4, 1998, petitioner wrote the Ombudsman explaining to him that
the accounts in question cannot readily be identified and asked for time to respond to the
order. The reason forwarded by petitioner was that despite diligent efforts and from the
account numbers presented, we can not identify these accounts since the checks are
issued in cash or bearer. We surmised that these accounts have long been dormant,
hence are not covered by the new account number generated by the Union Bank
system. We therefore have to verify from the Interbank records archives for the
whereabouts of these accounts.[5]
The Ombudsman, responding to the request of the petitioner for time to comply with
the order, stated: firstly, it must be emphasized that Union Bank, Julia Vargas Branch
was the depositary bank of the subject Traders Royal Bank Managers Checks (MCs), as
shown at its dorsal portion and as cleared by the Philippine Clearing House, not the
International Corporate Bank.
Notwithstanding the fact that the checks were payable to cash or bearer,
nonetheless, the name of the depositor(s) could easily be identified since the account
numbers x x x where said checks were deposited are identified in the order.
Even assuming that the accounts xxx were already classified as dormant accounts,
the bank is still required to preserve the records pertaining to the accounts within a
certain period of time as required by existing banking rules and regulations.
And finally, the in camera inspection was already extended twice
from May 13, 1998 to June 3, 1998, thereby giving the bank enough time within which to
sufficiently comply with the order.[6]
Thus, on June 16, 1998, the Ombudsman issued an order directing petitioner to
produce the bank documents relative to the accounts in issue. The order states:
Viewed from the foregoing, your persistent refusal to comply with Ombudsmans order is
unjustified, and is merely intended to delay the investigation of the case. Your act
constitutes disobedience of or resistance to a lawful order issued by this office and is
punishable as Indirect Contempt under Section 3(b) of R.A. 6770. The same may also
constitute obstruction in the lawful exercise of the functions of the Ombudsman which is
punishable under Section 36 of R.A. 6770.[7]
On July 10, 1998, petitioner together with Union Bank of the Philippines, filed a
petition for declaratory relief, prohibition and injunction[8] with the Regional Trial Court,
Makati City, against the Ombudsman.
The petition was intended to clear the rights and duties of petitioner. Thus,
petitioner sought a declaration of her rights from the court due to the clear conflict
between R. A. No. 6770, Section 15 and R. A. No. 1405, Sections 2 and 3.
Petitioner prayed for a temporary restraining order (TRO) because the Ombudsman
and other persons acting under his authority were continuously harassing her to produce
the bank documents relative to the accounts in question. Moreover, on June 16, 1998,
the Ombudsman issued another order stating that unless petitioner appeared before the
FFIB with the documents requested, petitioner manager would be charged with indirect
contempt and obstruction of justice.
In the meantime,[9] on July 14, 1998, the lower court denied petitioners prayer for a
temporary restraining order and stated thus:
After hearing the arguments of the parties, the court finds the application for a Temporary
Restraining Order to be without merit.
Since the application prays for the restraint of the respondent, in the exercise of his
contempt powers under Section 15 (9) in relation to paragraph (8) of R.A. 6770, known
as The Ombudsman Act of 1989, there is no great or irreparable injury from which
petitioners may suffer, if respondent is not so restrained. Respondent should he decide to
exercise his contempt powers would still have to apply with the court. x x x Anyone who,
without lawful excuse x x x refuses to produce documents for inspection, when thereunto
lawfully required shall be subject to discipline as in case of contempt of Court and upon
application of the individual or body exercising the power in question shall be dealt with
by the Judge of the First Instance (now RTC) having jurisdiction of the case in a manner
provided by law (section 580 of the Revised Administrative Code). Under the present
Constitution only judges may issue warrants, hence, respondent should apply with the
Court for the issuance of the warrant needed for the enforcement of his contempt orders.
It is in these proceedings where petitioners may question the propriety of respondents
exercise of his contempt powers. Petitioners are not therefore left without any adequate
remedy.
The questioned orders were issued with the investigation of the case of Fact-Finding and
Intelligence Bureau vs. Amado Lagdameo, et. el., OMB-0-97-0411, for violation of R.A.
3019. Since petitioner failed to show prima facie evidence that the subject matter of the
investigation is outside the jurisdiction of the Office of the Ombudsman, no writ of
injunction may be issued by this Court to delay this investigation pursuant to Section 14
of the Ombudsman Act of 1989.[10]
On July 20, 1998, petitioner filed a motion for reconsideration based on the
following grounds:
a. Petitioners application for Temporary Restraining Order is not only to
restrain the Ombudsman from exercising his contempt powers, but to stop
him from implementing his Orders dated April 29,1998 and June 16,1998;
and
b. The subject matter of the investigation being conducted by the Ombudsman
at petitioners premises is outside his jurisdiction.[11]
On July 23, 1998, the Ombudsman filed a motion to dismiss the petition for
declaratory relief[12] on the ground that the Regional Trial Court has no jurisdiction to hear
a petition for relief from the findings and orders of the Ombudsman, citing R. A. No. 6770,
Sections 14 and 27. On August 7, 1998, the Ombudsman filed an opposition to
petitioners motion for reconsideration dated July 20, 1998.[13]
On August 19, 1998, the lower court denied petitioners motion for reconsideration,
[14]
and also the Ombudsmans motion to dismiss.[15]
On August 21, 1998, petitioner received a copy of the motion to cite her for
contempt, filed with the Office of the Ombudsman by Agapito B. Rosales, Director, Fact
Finding and Intelligence Bureau (FFIB).[16]
On August 31, 1998, petitioner filed with the Ombudsman an opposition to the
motion to cite her in contempt on the ground that the filing thereof was premature due to
the petition pending in the lower court.[17] Petitioner likewise reiterated that she had no
intention to disobey the orders of the Ombudsman. However, she wanted to be clarified
as to how she would comply with the orders without her breaking any law, particularly R.
A. No. 1405.[18]
Respondent Ombudsman panel set the incident for hearing on September 7, 1998.
[19]
After hearing, the panel issued an order dated September 7, 1998, ordering petitioner
and counsel to appear for a continuation of the hearing of the contempt charges against
her.[20]
On September 10, 1998, petitioner filed with the Ombudsman a motion for
reconsideration of the above order.[21] Her motion was premised on the fact that there
was a pending case with the Regional Trial Court, Makati City,[22] which would determine
whether obeying the orders of the Ombudsman to produce bank documents would not
violate any law.
The FFIB opposed the motion,[23] and on October 14, 1998, the Ombudsman denied
the motion by order the dispositive portion of which reads:
Wherefore, respondent Lourdes T. Marquezs motion for reconsideration is hereby
DENIED, for lack of merit. Let the hearing of the motion of the Fact Finding Intelligence
Bureau (FFIB) to cite her for indirect contempt be intransferrably set to 29 October 1998 meddling and prying into the privacy of another. It also holds a public officer or employee
at 2:00 oclock p.m. at which date and time she should appear personally to submit her or any private individual liable for damages for any violation of the rights and liberties of
additional evidence. Failure to do so shall be deemed a waiver thereof.[24] another person, and recognizes the privacy of letters and other private
Hence, the present petition.[25] communications. The Revised Penal Code makes a crime of the violation of secrets by
The issue is whether petitioner may be cited for indirect contempt for her failure to an officer, the revelation of trade and industrial secrets, and trespass to dwelling.
produce the documents requested by the Ombudsman. And whether the order of the Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the
Ombudsman to have an in camera inspection of the questioned account is allowed as an Secrecy of Bank Deposits Act, and the Intellectual Property Code.[28]
exception to the law on secrecy of bank deposits (R. A. No. 1405). IN VIEW WHEREOF, we GRANT the petition. We order the Ombudsman to cease
An examination of the secrecy of bank deposits law (R. A. No. 1405) would reveal and desist from requiring Union Bank Manager Lourdes T. Marquez, or anyone in her
the following exceptions: place to comply with the order dated October 14, 1998, and similar orders. No costs.
1. Where the depositor consents in writing; SO ORDERED.
2. Impeachment case; Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
3. By court order in bribery or dereliction of duty cases against public officials; Quisumbing, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-
4. Deposit is subject of litigation; Gutierrez, JJ., concur.
5. Sec. 8, R. A. No. 3019, in cases of unexplained wealth as held in the case
of PNB vs. Gancayco[26] EN BANC
The order of the Ombudsman to produce for in camera inspection the subject
accounts with the Union Bank of the Philippines, Julia Vargas Branch, is based on a JOSEPH VICTOR G. EJERCITO, G.R. Nos. 157294-95
pending investigation at the Office of the Ombudsman against Amado Lagdameo, et. al. Petitioner, Present:
for violation of R. A. No. 3019, Sec. 3 (e) and (g) relative to the Joint Venture Agreement
between the Public Estates Authority and AMARI. PANGANIBAN, C.J.,
We rule that before an in camera inspection may be allowed, there must be a PUNO,
pending case before a court of competent jurisdiction. Further, the account must be QUISUMBING,
clearly identified, the inspection limited to the subject matter of the pending case before - versus - YNARES-SANTIAGO,
the court of competent jurisdiction. The bank personnel and the account holder must be SANDOVAL-GUTIERREZ,
notified to be present during the inspection, and such inspection may cover only the CARPIO,
account identified in the pending case. AUSTRIA-MARTINEZ,
In Union Bank of the Philippines v. Court of Appeals, we held that Section 2 CORONA,
of the Law on Secrecy of Bank Deposits, as amended, declares bank SANDIGANBAYAN (SPECIAL DIVISION) AND CARPIO MORALES,
deposits to be absolutely confidential except: PEOPLE OF THE PHILIPPINES, CALLEJO, SR.,
(1) In an examination made in the course of a special or general examination Respondents. AZCUNA,
of a bank that is specifically authorized by the Monetary Board after being TINGA,
satisfied that there is reasonable ground to believe that a bank fraud or CHICO-NAZARIO,
serious irregularity has been or is being committed and that it is necessary GARCIA, and
to look into the deposit to establish such fraud or irregularity, VELASCO, JR., JJ.
(2) In an examination made by an independent auditor hired by the bank to Promulgated:
conduct its regular audit provided that the examination is for audit
purposes only and the results thereof shall be for the exclusive use of the November 30, 2006
bank, x--------------------------------------------------x
(3) Upon written permission of the depositor,
(4) In cases of impeachment, DECISION
(5) Upon order of a competent court in cases of bribery or dereliction of duty
of public officials, or CARPIO MORALES, J.:
(6) In cases where the money deposited or invested is the subject matter of
the litigation[27] The present petition for certiorari under Rule 65 assails the Sandiganbayan
In the case at bar, there is yet no pending litigation before any court of competent Resolutions dated February 7 and 12, 2003 denying petitioner Joseph Victor G. Ejercitos
authority. What is existing is an investigation by the office of the Ombudsman. In short, Motions to Quash Subpoenas Duces Tecum/Ad Testificandum, and Resolution
what the Office of the Ombudsman would wish to do is to fish for additional evidence to dated March 11, 2003 denying his Motion for Reconsideration of the first two resolutions.
formally charge Amado Lagdameo, et. al., with the Sandiganbayan. Clearly, there was no
pending case in court which would warrant the opening of the bank account for The three resolutions were issued in Criminal Case No. 26558, People of
inspection. the Philippines v. Joseph Ejercito Estrada, et al., for plunder, defined and penalized in
Zones of privacy are recognized and protected in our laws. The Civil Code provides R.A. 7080, AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER.
that "[e]very person shall respect the dignity, personality, privacy and peace of mind of
his neighbors and other persons" and punishes as actionable torts several acts for
 In above-stated case of People v. Estrada, et al., the Special Prosecution The Special Prosecution Panel filed still another Request for Issuance of
Panel[1] filed on January 20, 2003 before the Sandiganbayan a Request for Issuance of Subpoena Duces Tecum/Ad Testificandum dated January 23, 2003 for the President of
Subpoena Duces Tecum for the issuance of a subpoena directing the President of Export EIB or his/her authorized representative to produce the same documents subject of the
and Industry Bank (EIB, formerly Urban Bank) or his/her authorized representative to Subpoena Duces Tecum dated January 21, 2003 and to testify thereon on the hearings
produce the following documents during the hearings scheduled on January 22 and 27, scheduled on January 27 and 29, 2003 and subsequent dates until completion of the
2003: testimony. The request was likewise granted by the Sandiganbayan. A Subpoena Duces
Tecum/Ad Testificandum was accordingly issued on January 24, 2003.
I. For Trust Account No. 858;
1. Account Opening Documents; Petitioner, claiming to have learned from the media that the Special Prosecution
2. Trading Order No. 020385 dated January 29, 1999; Panel had requested for the issuance of subpoenas for the examination of bank
3. Confirmation Advice TA 858; accounts belonging to him, attended the hearing of the case on January 27, 2003 and
4. Original/Microfilm copies, including the dorsal side, of the following: filed before the Sandiganbayan a letter of even date expressing his concerns as follows,
quoted verbatim:
a. Bank of Commerce MC # 0256254 in the amount
of P2,000,000.00; Your Honors:
b. Urban bank Corp. MC # 34181 dated November 8, 1999 in
the amount of P10,875,749.43; It is with much respect that I write this court relative to the concern of
c. Urban Bank MC # 34182 dated November 8, 1999 in the subpoenaing the undersigneds bank account which I have learned
amount of P42,716,554.22; through the media.
d. Urban Bank Corp. MC # 37661 dated November 23,
1999 in the amount of P54,161,496.52; I am sure the prosecution is aware of our banking secrecy laws
everyone supposed to observe. But, instead of prosecuting those who
5. Trust Agreement dated January 1999: may have breached such laws, it seems it is even going to use
Trustee: Joseph Victor C. Ejercito supposed evidence which I have reason to believe could only have
Nominee: URBAN BANK-TRUST DEPARTMENT been illegally obtained.
Special Private Account No. (SPAN) 858; and
6. Ledger of the SPAN # 858. The prosecution was not content with a general request. It even lists
and identifies specific documents meaning someone else in the bank
II. For Savings Account No. 0116-17345-9 illegally released confidential information.
SPAN No. 858
If this can be done to me, it can happen to anyone. Not that anything
1. Signature Cards; and can still shock our family. Nor that I have anything to hide. Your
2. Statement of Account/Ledger Honors.

III. Urban Bank Managers Check and their corresponding Urban Bank Managers
Check Application Forms, as follows:
1. MC # 039975 dated January 18, 2000 in the amount
of P70,000,000.00;
2. MC # 039976 dated January 18, 2000 in the amount
of P2,000,000.00;
3. MC # 039977 dated January 18, 2000 in the amount
of P2,000,000.00;
4. MC # 039978 dated January 18, 2000 in the amount
of P1,000,000.00;
The Special Prosecution Panel also filed on January 20, 2003, a Request for
Issuance of Subpoena Duces Tecum/Ad Testificandum directed to the authorized
representative of Equitable-PCI Bank to produce statements of account pertaining to
certain accounts in the name of Jose Velarde and to testify thereon.
The Sandiganbayan granted both requests by Resolution of January 21,
2003 and subpoenas were accordingly issued.
But, I am not a lawyer and need time to consult one on a situation that
affects every bank depositor in the country and should interest the
bank itself, the Bangko Sentral ng Pilipinas, and maybe the
Ombudsman himself, who may want to investigate, not exploit, the
serious breach that can only harm the economy, a consequence that
may have been overlooked. There appears to have been deplorable
connivance.
xxxx
I hope and pray, Your Honors, that I will be given time to retain the
services of a lawyer to help me protect my rights and those of every
banking depositor. But the one I have in mind is out of the country right
now.
May I, therefore, ask your Honors, that in the meantime, the issuance
of the subpoena be held in abeyance for at least ten (10) days to
enable me to take appropriate legal steps in connection with the
prosecutions request for the issuance of subpoena concerning my
accounts. (Emphasis supplied)

From the present petition, it is gathered that the accounts referred to by
petitioner in his above-quoted letter are Trust Account No. 858 and Savings Account No.
0116-17345-9.[2]
In open court, the Special Division of the Sandiganbayan, through Associate
Justice Edilberto Sandoval, advised petitioner that his remedy was to file a motion to
quash, for which he was given up to 12:00 noon the following day, January 28, 2003.
Petitioner, unassisted by counsel, thus filed on January 28, 2003 a Motion to
Quash Subpoena Duces Tecum/Ad Testificandum praying that the subpoenas previously
issued to the President of the EIB dated January 21 and January 24, 2003 be quashed.[3]
In his Motion to Quash, petitioner claimed that his bank accounts are covered
by R.A. No. 1405 (The Secrecy of Bank Deposits Law) and do not fall under any of the
exceptions stated therein. He further claimed that the specific identification of documents
in the questioned subpoenas, including details on dates and amounts, could only have
been made possible by an earlier illegal disclosure thereof by the EIB and the Philippine
Deposit Insurance Corporation (PDIC) in its capacity as receiver of the then Urban Bank.
The disclosure being illegal, petitioner concluded, the prosecution in the case
may not be allowed to make use of the information.
Before the Motion to Quash was resolved by the Sandiganbayan, the
prosecution filed another Request for the Issuance of Subpoena Duces Tecum/Ad
Testificandum dated January 31, 2003, again to direct the President of the EIB to
produce, on the hearings scheduled on February 3 and 5, 2003, the same documents
subject of the January 21 and 24, 2003 subpoenas with the exception of the Bank of
Commerce MC #0256254 in the amount of P2,000,000 as Bank of Commerce MC
#0256256 in the amount of P200,000,000 was instead requested. Moreover, the request
covered the following additional documents:
IV. For Savings Account No. 1701-00646-1:
1. Account Opening Forms;
2. Specimen Signature Card/s; and
3. Statements of Account.
The prosecution also filed a Request for the Issuance of Subpoena Duces
Tecum/Ad Testificandum bearing the same date, January 31, 2003, directed to Aurora C.
Baldoz, Vice President-CR-II of the PDIC for her to produce the following documents on
the scheduled hearings on February 3 and 5, 2003:
1. Letter of authority dated November 23, 1999 re: SPAN [Special
Private Account Number] 858;
2. Letter of authority dated January 29, 2000 re: SPAN 858;
3. Letter of authority dated April 24, 2000 re: SPAN 858;
4. Urban Bank check no. 052092 dated April 24, 2000 for the amount
of P36, 572, 315.43;
5. Urban Bank check no. 052093 dated April 24, 2000 for the amount
of P107,191,780.85; and
6. Signature Card Savings Account No. 0116-17345-9. (Underscoring
supplied)
The subpoenas prayed for in both requests were issued by the Sandiganbayan
on January 31, 2003.
On February 7, 2003, petitioner, this time assisted by counsel, filed an Urgent
Motion to Quash Subpoenae Duces Tecum/Ad Testificandum praying that the subpoena
dated January 31, 2003 directed to Aurora Baldoz be quashed for the same reasons
which he cited in the Motion to Quash[4] he had earlier filed.
On the same day, February 7, 2003, the Sandiganbayan issued a Resolution
denying petitioners Motion to Quash Subpoenae Duces Tecum/Ad Testificandum
dated January 28, 2003.
Subsequently or on February 12, 2003, the Sandiganbayan issued a
Resolution denying petitioners Urgent Motion to Quash Subpoena Duces Tecum/Ad
Testificandum dated February 7, 2003.
Petitioners Motion for Reconsideration dated February 24, 2003 seeking a
reconsideration of the Resolutions of February 7 and 12, 2003 having been denied by
Resolution of March 11, 2003, petitioner filed the present petition.
Raised as issues are:
1. Whether petitioners Trust Account No. 858 is covered by the term
deposit as used in R.A. 1405;
2. Whether petitioners Trust Account No. 858 and Savings Account No.
0116-17345-9 are excepted from the protection of R.A. 1405; and
3. Whether the extremely-detailed information contained in the Special
Prosecution Panels requests for subpoena was obtained through a prior
illegal disclosure of petitioners bank accounts, in violation of the fruit of
the poisonous tree doctrine.
Respondent People posits that Trust Account No. 858[5] may be inquired into,
not merely because it falls under the exceptions to the coverage of R.A. 1405, but
because it is not even contemplated therein. For, to respondent People, the law applies
only to deposits which strictly means the money delivered to the bank by which a
creditor-debtor relationship is created between the depositor and the bank.
The contention that trust accounts are not covered by the term deposits, as
used in R.A. 1405, by the mere fact that they do not entail a creditor-debtor relationship
between the trustor and the bank, does not lie. An examination of the law shows that the
term deposits used therein is to be understood broadly and not limited only to accounts
which give rise to a creditor-debtor relationship between the depositor and the bank.
The policy behind the law is laid down in Section 1:

SECTION 1. It is hereby declared to be the policy of the Government
to give encouragement to the people to deposit their money in banking
institutions and to discourage private hoarding so that the same may
be properly utilized by banks in authorized loans to assist in the
economic development of the country. (Underscoring supplied)
If the money deposited under an account may be used by banks for authorized
loans to third persons, then such account, regardless of whether it creates a creditor-
debtor relationship between the depositor and the bank, falls under the category of
accounts which the law precisely seeks to protect for the purpose of boosting the
economic development of the country.
Trust Account No. 858 is, without doubt, one such account. The Trust
Agreement between petitioner and Urban Bank provides that the trust account covers
deposit, placement or investment of funds by Urban Bank for and in behalf of petitioner.
[6]
The money deposited under Trust Account No. 858, was, therefore, intended not
merely to remain with the bank but to be invested by it elsewhere. To hold that this type
of account is not protected by R.A. 1405 would encourage private hoarding of funds that
could otherwise be invested by banks in other ventures, contrary to the policy behind the
law.
Section 2 of the same law in fact even more clearly shows that the term
deposits was intended to be understood broadly:
SECTION 2. All deposits of whatever nature with banks or banking
institutions in the Philippines including investments in bonds issued by
the Government of the Philippines, its political subdivisions and its
instrumentalities, are hereby considered as of an absolutely
confidential nature and may not be examined, inquired or looked into
by any person, government official, bureau or office, except upon
written permission of the depositor, or in cases of impeachment, or
upon order of a competent court in cases of bribery or dereliction of
duty of public officials, or in cases where the money deposited or
invested is the subject matter of the litigation. (Emphasis and
underscoring supplied)
The phrase of whatever nature proscribes any restrictive interpretation of
deposits. Moreover, it is clear from the immediately quoted provision that, generally, the
law applies not only to money which is deposited but also to those which
are invested. This further shows that the law was not intended to apply only to deposits
in the strict sense of the word. Otherwise, there would have been no need to add the
phrase or invested.
Clearly, therefore, R.A. 1405 is broad enough to cover Trust Account No. 858.
The protection afforded by the law is, however, not absolute, there being
recognized exceptions thereto, as above-quoted Section 2 provides. In the present case,
two exceptions apply, to wit: (1) the examination of bank accounts is upon order of a
competent court in cases of bribery or dereliction of duty of public officials, and (2) the
money deposited or invested is the subject matter of the litigation.
Petitioner contends that since plunder is neither bribery nor dereliction of duty,
his accounts are not excepted from the protection of R.A. 1405. Philippine National Bank
v. Gancayco[7] holds otherwise:
Cases of unexplained wealth are similar to cases of bribery or
dereliction of duty and no reason is seen why these two classes of
cases cannot be excepted from the rule making bank deposits
confidential. The policy as to one cannot be different from the policy as
to the other. This policy expresses the notion that a public office is
a public trust and any person who enters upon its discharge does so
with the full knowledge that his life, so far as relevant to his duty, is
open to public scrutiny.
Undoubtedly, cases for plunder involve unexplained wealth. Section 2 of R.A.
No. 7080 states so.
SECTION 2. Definition of the Crime of Plunder; Penalties. Any public
officer who, by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates,
subordinates or other persons, amasses, accumulates or acquires
ill-gotten wealth through a combination or series of overt or criminal
acts as described in Section 1(d) hereof, in the aggregate amount or
total value of at least Seventy-five million pesos (P75,000,000.00),
shall be guilty of the crime of plunder and shall be punished by life
imprisonment with perpetual absolute disqualification from holding any
public office. Any person who participated with said public officer in the
commission of plunder shall likewise be punished. In the imposition of
penalties, the degree of participation and the attendance of mitigating
and extenuating circumstances shall be considered by the court.The
court shall declare any and all ill-gotten wealth and their interests and
other incomes and assets including the properties and shares of stock
derived from the deposit or investment thereof forfeited in favor of the
State. (Emphasis and underscoring supplied)
An examination of the overt or criminal acts as described in Section 1(d) of R.A.
No. 7080 would make the similarity between plunder and bribery even more pronounced
since bribery is essentially included among these criminal acts. Thus Section 1(d) states:
d) Ill-gotten wealth means any asset, property, business
enterprise or material possession of any person within the purview of
Section Two (2) hereof, acquired by him directly or indirectly through
dummies, nominees, agents, subordinates and or business associates
by any combination or series of the following means or similar
schemes.
1) Through misappropriation, conversion, misuse, or malversation of
public funds or raids on the public treasury;
2) By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary
benefit from any person and/or entity in connection with
 any government contract or project or by reason of the
office or position of the public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets
belonging to the National Government or any of its subdivisions,
agencies or instrumentalities or government-owned or
-controlled corporations and their subsidiaries;
4) By obtaining, receiving or accepting directly or indirectly any shares
of stock, equity or any other form of interest or participation
including promise of future employment in any business
enterprise or undertaking;
5) By establishing agricultural, industrial or commercial monopolies or
other combinations and/or implementation of decrees and
orders intended to benefit particular persons or special interests;
or
6) By taking undue advantage of official position, authority,
relationship, connection or influence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of
the Filipino people and the Republic of the Philippines.
(Emphasis supplied)
Indeed, all the above-enumerated overt acts are similar to bribery such that, in
each case, it may be said that no reason is seen why these two classes of cases cannot
be excepted from the rule making bank deposits confidential.[8]
The crime of bribery and the overt acts constitutive of plunder are crimes
committed by public officers, and in either case the noble idea that a public office is a
public trust and any person who enters upon its discharge does so with the full
knowledge that his life, so far as relevant to his duty, is open to public scrutiny applies
with equal force.
Plunder being thus analogous to bribery, the exception to R.A. 1405 applicable
in cases of bribery must also apply to cases of plunder.
Respecting petitioners claim that the money in his bank accounts is not the
subject matter of the litigation, the meaning of the phrase subject matter of the litigation
as used in R.A. 1405 is explained in Union Bank of the Philippines v. Court of Appeals,
[9]
thus:
Petitioner contends that the Court of Appeals confuses the
cause of action with the subject of the action. In Yusingco v. Ong Hing
Lian, petitioner points out, this Court distinguished the two concepts.
x x x The cause of action is the legal wrong
threatened or committed, while the object of the
action is to prevent or redress the wrong by
obtaining some legal relief; but the subject of the
action is neither of these since it is not the wrong or
the relief demanded, the subject of the action is the
matter or thing with respect to which the controversy
has arisen, concerning which the wrong has been
done, and this ordinarily is the property or the
contract and its subject matter, or the thing in
dispute.
The argument is well-taken. We note with approval the
difference between the subject of the action from the cause of
action. We also find petitioners definition of the phrase subject matter
of the action is consistent with the term subject matter of the litigation,
as the latter is used in the Bank Deposits Secrecy Act.
In Mellon Bank, N.A. v. Magsino, where the petitioner bank
inadvertently caused the transfer of the amount of US$1,000,000.00
instead of only US$1,000.00, the Court sanctioned the examination
of the bank accounts where part of the money was subsequently
caused to be deposited:
x x x Section 2 of [Republic Act No. 1405]
allows the disclosure of bank deposits in cases
where the money deposited is the subject matter of
the litigation. Inasmuch as Civil Case No. 26899 is
aimed at recovering the amount converted by the
Javiers for their own benefit, necessarily, an
inquiry into the whereabouts of the illegally
acquired amount extends to whatever is
concealed by being held or recorded in the name
of persons other than the one responsible for the
illegal acquisition.
Clearly, Mellon Bank involved a case where the money
deposited was the subject matter of the litigation since the money
deposited was the very thing in dispute. x x x (Emphasis and
underscoring supplied)
The plunder case now pending with the Sandiganbayan necessarily involves an
inquiry into the whereabouts of the amount purportedly acquired illegally by former
President Joseph Estrada.
In light then of this Courts pronouncement in Union Bank, the subject matter of
the litigation cannot be limited to bank accounts under the name of President Estrada
alone, but must include those accounts to which the money purportedly acquired illegally
or a portion thereof was alleged to have been transferred. Trust Account No. 858 and
Savings Account No. 0116-17345-9 in the name of petitioner fall under this description
and must thus be part of the subject matter of the litigation.
In a further attempt to show that the subpoenas issued by the Sandiganbayan
are invalid and may not be enforced, petitioner contends, as earlier stated, that the
information found therein, given their extremely detailed character, could only have been
obtained by the Special Prosecution Panel through an illegal disclosure by the bank
officials concerned. Petitioner thus claims that, following the fruit of the poisonous tree
doctrine, the subpoenas must be quashed.
Petitioner further contends that even if, as claimed by respondent People, the
extremely-detailed information was obtained by the Ombudsman from the bank officials
concerned during a previous investigation of the charges against President Estrada,
such inquiry into his bank accounts would itself be illegal.
Petitioner relies on Marquez v. Desierto[10] where the Court held:
We rule that before an in camera inspection may be allowed there
must be a pending case before a court of competent
jurisdiction. Further, the account must be clearly identified, the
inspection limited to the subject matter of the pending case before the
court of competent jurisdiction. The bank personnel and the account
holder must be notified to be present during the inspection, and such
inspection may cover only the account identified in the pending case.
(Underscoring supplied)
As no plunder case against then President Estrada had yet been filed before a
court of competent jurisdiction at the time the Ombudsman conducted an investigation,
petitioner concludes that the information about his bank accounts were acquired illegally,
hence, it may not be lawfully used to facilitate a subsequent inquiry into the same bank
accounts.
Petitioners attempt to make the exclusionary rule applicable to the instant case
fails. R.A. 1405, it bears noting, nowhere provides that an unlawful examination of bank
accounts shall render the evidence obtained therefrom inadmissible in evidence. Section
5 of R.A. 1405 only states that [a]ny violation of this law will subject the offender upon
conviction, to an imprisonment of not more than five years or a fine of not more than
twenty thousand pesos or both, in the discretion of the court.
The case of U.S. v. Frazin,[11] involving the Right to Financial Privacy Act of 1978
(RFPA) of the United States, is instructive.
Because the statute, when properly construed, excludes a
suppression remedy, it would not be appropriate for us to provide one
in the exercise of our supervisory powers over the administration of
justice. Where Congress has both established a right and provided
exclusive remedies for its violation, we would encroach upon the
prerogatives of Congress were we to authorize a remedy not provided
for by statute. United States v. Chanen, 549 F.2d 1306, 1313 (9th
Cir.), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977).
The same principle was reiterated in U.S. v. Thompson:[12]
x x x When Congress specifically designates a remedy for
one of its acts, courts generally presume that it engaged in the
necessary balancing of interests in determining what the appropriate
penalty should be. See Michaelian, 803 F.2d at 1049 (citing
cases); Frazin, 780 F.2d at 1466. Absent a specific reference to an
exclusionary rule, it is not appropriate for the courts to read such a
provision into the act.
Even assuming arguendo, however, that the exclusionary rule applies in
principle to cases involving R.A. 1405, the Court finds no reason to apply the same in
this particular case.
Clearly, the fruit of the poisonous tree doctrine[13] presupposes a violation of
law. If there was no violation of R.A. 1405 in the instant case, then there would be no
poisonous tree to begin with, and, thus, no reason to apply the doctrine.
How the Ombudsman conducted his inquiry into the bank accounts of petitioner
is recounted by respondent People of the Philippines, viz:
x x x [A]s early as February 8, 2001, long before the issuance of
the Marquez ruling, the Office of the Ombudsman, acting under the
powers granted to it by the Constitution and R.A. No. 6770, and acting
on information obtained from various sources, including impeachment
(of then Pres. Joseph Estrada) related reports, articles and
investigative journals, issued a Subpoena Duces Tecum addressed to
Urban Bank. (Attachment 1-b) It should be noted that the description of
the documents sought to be produced at that time included that of
numbered accounts 727, 737, 747, 757, 777 and 858 and included
such names as Jose Velarde, Joseph E. Estrada, Laarni Enriquez,
Guia Gomez, Joy Melendrez, Peachy Osorio, Rowena Lopez, Kevin or
Kelvin Garcia. The subpoena did not single out account 858.
xxxx
Thus, on February 13, 2001, PDIC, as receiver of Urban Bank, issued a
certification as to the availability of bank documents relating to A/C 858
and T/A 858 and the non-availability of bank records as to the other
accounts named in the subpoena. (Attachments 2, 2-1 and 2-b)
Based on the certification issued by PDIC, the Office of the Ombudsman
on February 16, 2001 again issued a Subpoena Duces
Tecum directed to Ms. Corazon dela Paz, as Interim Receiver,
directing the production of documents pertinent to account A/C 858
and T/C 858. (Attachment 3)
In compliance with the said subpoena dated February 16, 2001, Ms. Dela Paz,
as interim receiver, furnished the Office of the Ombudsman certified
copies of documents under cover latter dated February 21, 2001:
1. Transaction registers dated 7-02-99, 8-16-99, 9-17-99,
10-18-99, 11-22-99, 1-07-00, 04-03-00 and 04-24-00;
2. Report of Unregularized TAFs & TDs for UR COIN A & B
Placements of Various Branches as of February 29, 2000
and as of December 16, 1999; and
3. Trading Orders Nos. A No. 78102 and A No. 078125.
Trading Order A No. 07125 is filed in two copies a white copy
which showed set up information; and a yellow copy which
showed reversal information. Both copies have been
reproduced and are enclosed with this letter.
We are continuing our search for other records and
documents pertinent to your request and we will forward to
you on Friday, 23 February 2001, such additional records and
documents as we might find until then. (Attachment 4)
 The Office of the Ombudsman then requested for the mangers checks,
detailed in the Subpoena Duces Tecum dated March 7,
2001. (Attachment 5)
PDIC again complied with the said Subpoena Duces
Tecum dated March 7, 2001 and provided copies of the managers
checks thus requested under cover letter dated March 16,
2001. (Attachment 6)[14] (Emphasis in the original)
The Sandiganbayan credited the foregoing account of respondent People.
[15]
The Court finds no reason to disturb this finding of fact by the Sandiganbayan.
The Marquez ruling notwithstanding, the above-described examination by the
Ombudsman of petitioners bank accounts, conducted before a case was filed with a
court of competent jurisdiction, was lawful.
For the Ombudsman issued the subpoenas bearing on the bank accounts of
petitioner about four months before Marquez was promulgated on June 27, 2001.
While judicial interpretations of statutes, such as that made in Marquez with
respect to R.A. No. 6770 or the Ombudsman Act of 1989, are deemed part of the statute
as of the date it was originally passed, the rule is not absolute.
Columbia Pictures, Inc. v. Court of Appeals[16] teaches:
It is consequently clear that a judicial interpretation becomes a part of
the law as of the date that law was originally passed, subject only to
the qualification that when a doctrine of this Court is overruled
and a different view is adopted, and more so when there is
a reversal thereof, the new doctrine should be
applied prospectively and should not apply to parties who relied on
the old doctrine and acted in good faith. (Emphasis and underscoring
supplied)
When this Court construed the Ombudsman Act of 1989, in light of the Secrecy of Bank
Deposits Law in Marquez, that before an in camera inspection may be allowed there
must be a pending case before a court of competent jurisdiction, it was, in fact, reversing
an earlier doctrine found in Banco Filipino Savings and Mortgage Bank v. Purisima[17].
Banco Filipino involved subpoenas duces tecum issued by the Office of the
Ombudsman, then known as the Tanodbayan,[18] in the course of its preliminary
investigation of a charge of violation of the Anti-Graft and Corrupt Practices Act.
While the main issue in Banco Filipino was whether R.A. 1405 precluded the
Tanodbayans issuance of subpoena duces tecum of bank records in the name of
persons other than the one who was charged, this Court, citing P.D. 1630,[19] Section 10,
the relevant part of which states:
(d) He may issue a subpoena to compel any person to
appear, give sworn testimony, or produce documentary or other
evidence the Tanodbayan deems relevant to a matter under his inquiry,
held that The power of the Tanodbayan to issue subpoenae ad testificandum and
subpoenae duces tecum at the time in question is not disputed, and at any rate
does not admit of doubt.[20]
As the subpoenas subject of Banco Filipino were issued during a preliminary
investigation, in effect this Court upheld the power of the Tandobayan under P.D. 1630 to
issue subpoenas duces tecum for bank documents prior to the filing of a case before a
court of competent jurisdiction.
Marquez, on the other hand, practically reversed this ruling in Banco
Filipino despite the fact that the subpoena power of the Ombudsman under R.A. 6770
was essentially the same as that under P.D. 1630. Thus Section 15 of R.A. 6770
empowers the Office of the Ombudsman to
(8) Administer oaths, issue subpoena and subpoena duces tecum, and
take testimony in any investigation or inquiry, including the power to
examine and have access to bank accounts and records;
A comparison of this provision with its counterpart in Sec. 10(d) of P.D. 1630 clearly
shows that it is only more explicit in stating that the power of the Ombudsman includes
the power to examine and have access to bank accounts and records which power was
recognized with respect to the Tanodbayan through Banco Filipino.
The Marquez ruling that there must be a pending case in order for the Ombudsman to
validly inspect bank records in camera thus reversed a prevailing doctrine.[21]Hence, it
may not be retroactively applied.
The Ombudsmans inquiry into the subject bank accounts prior to the filing of any case
before a court of competent jurisdiction was therefore valid at the time it was conducted.
Likewise, the Marquez ruling that the account holder must be notified to be present
during the inspection may not be applied retroactively to the inquiry of the Ombudsman
subject of this case. This ruling is not a judicial interpretation either of R.A. 6770 or R.A.
1405, but a judge-made law which, as People v. Luvendino[22]instructs, can only be given
prospective application:
x x x The doctrine that an uncounselled waiver of the right to
counsel is not to be given legal effect was initially a judge-
made one and was first announced on 26 April 1983 in Morales v.
Enrile and reiterated on 20 March 1985 in People v. Galit. x x x
While the Morales-Galit doctrine eventually became part of Section
12(1) of the 1987 Constitution, that doctrine affords no comfort to
appellant Luvendino for the requirements and restrictions outlined
in Morales and Galit have no retroactive effect and do not reach
waivers made prior to 26 April 1983 the date of promulgation
of Morales. (Emphasis supplied)
In fine, the subpoenas issued by the Ombudsman in this case were legal,
hence, invocation of the fruit of the poisonous tree doctrine is misplaced.

AT ALL EVENTS, even if the challenged subpoenas are quashed, the
Ombudsman is not barred from requiring the production of the same documents based
solely on information obtained by it from sources independent of its previous inquiry.
In particular, the Ombudsman, even before its inquiry, had already possessed
information giving him grounds to believe that (1) there are bank accounts bearing the
number 858, (2) that such accounts are in the custody of Urban Bank, and (3) that the
same are linked with the bank accounts of former President Joseph Estrada who was
then under investigation for plunder.
Only with such prior independent information could it have been possible for the
Ombudsman to issue the February 8, 2001 subpoena duces tecum addressed to the
President and/or Chief Executive Officer of Urban Bank, which described the documents
subject thereof as follows:
(a) bank records and all documents relative thereto pertaining to all
bank accounts (Savings, Current, Time Deposit, Trust, Foreign
Currency Deposits, etc) under the account names of Jose Velarde,
Joseph E. Estrada, Laarni Enriquez, Guia Gomez, Joy Melendrez,
Peach Osorio, Rowena Lopez, Kevin or Kelvin Garcia, 727, 737, 747,
757, 777 and 858.(Emphasis and underscoring supplied)
The information on the existence of Bank Accounts bearing number 858 was, according
to respondent People of the Philippines, obtained from various sources including the
proceedings during the impeachment of President Estrada, related reports, articles and
investigative journals.[23] In the absence of proof to the contrary, this explanation proffered
by respondent must be upheld. To presume that the information was obtained in violation
of R.A. 1405 would infringe the presumption of regularity in the performance of official
functions.
Thus, with the filing of the plunder case against former President Estrada before the
Sandiganbayan, the Ombudsman, using the above independent information, may now
proceed to conduct the same investigation it earlier conducted, through which it can
eventually obtain the same information previously disclosed to it by the PDIC, for it is an
inescapable fact that the bank records of petitioner are no longer protected by R.A.
1405 for the reasons already explained above.
Since conducting such an inquiry would, however, only result in the disclosure
of the same documents to the Ombudsman, this Court, in avoidance of what would be a
time-wasteful and circuitous way of administering justice,[24] upholds the challenged
subpoenas.
Respecting petitioners claim that the Sandiganbayan violated his right to due
process as he was neither notified of the requests for the issuance of the subpoenas nor
of the grant thereof, suffice it to state that the defects were cured when petitioner
ventilated his arguments against the issuance thereof through his earlier quoted letter
addressed to the Sandiganbayan and when he filed his motions to quash before the
Sandiganbayan.
IN SUM, the Court finds that the Sandiganbayan did not commit grave abuse of
discretion in issuing the challenged subpoenas for documents pertaining to petitioners
Trust Account No. 858 and Savings Account No. 0116-17345-9 for the following reasons:
1. These accounts are no longer protected by the Secrecy of Bank Deposits
Law, there being two exceptions to the said law applicable in this case, namely: (1) the
examination of bank accounts is upon order of a competent court in cases of bribery or
dereliction of duty of public officials, and (2) the money deposited or invested is the
subject matter of the litigation. Exception (1) applies since the plunder case pending
against former President Estrada is analogous to bribery or dereliction of duty, while
exception (2) applies because the money deposited in petitioners bank accounts is said
to form part of the subject matter of the same plunder case.
2. The fruit of the poisonous tree principle, which states that once the primary
source (the tree) is shown to have been unlawfully obtained, any secondary or derivative
evidence (the fruit) derived from it is also inadmissible, does not apply in this case. In the
first place, R.A. 1405 does not provide for the application of this rule. Moreover, there is
no basis for applying the same in this case since the primary source for the detailed
information regarding petitioners bank accounts the investigation previously conducted
by the Ombudsman was lawful.
3. At all events, even if the subpoenas issued by the Sandiganbayan were
quashed, the Ombudsman may conduct on its own the same inquiry into the subject
bank accounts that it earlier conducted last February-March 2001, there being a plunder
case already pending against former President Estrada. To quash the challenged
subpoenas would, therefore, be pointless since the Ombudsman may obtain the same
documents by another route. Upholding the subpoenas avoids an unnecessary delay in
the administration of justice.
WHEREFORE, the petition is DISMISSED. The Sandiganbayan Resolutions
dated February 7 and 12, 2003 and March 11, 2003 are upheld.
The Sandiganbayan is hereby directed, consistent with this Courts ruling
in Marquez v. Desierto, to notify petitioner as to the date the subject bank documents
shall be presented in court by the persons subpoenaed.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice