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The petitioner in the present case appeared at the preliminary

EN BANC
investigation before the Justice of the Peace of Masantol,
G.R. No. L-2068 October 20, 1948 Pampanga, and after being informed of the criminal charges
against him and asked if he pleaded guilty or not guilty, pleaded
DOMINADOR B. BUSTOS, petitioner, not guilty. "Then the counsel for the petitioner moved that the
vs. complainant present her evidence so that her witnesses could be
examined and cross-examined in the manner and form provided
ANTONIO G. LUCERO, Judge of First Instance of Pampanga, by law." The fiscal and the private prosecutor objected to
respondent. petitioner's motion invoking section 11, Rule 108, and the
E. M. Banzali for petitioner. objection was sustained. In view thereof, the accused refused to
present his evidence, and the case was forwarded to the Court of
Acting Provincial Fiscal Albino L. Figueroa and Assistant First Instance of Pampanga.
Provincial Fiscal Marcelo L. Mallari for respondent.
The counsel for the accused petitioner filed a motion with the
TUASON, J.: Court of First Instance praying that the record of the case be
remanded to the justice of the peace of Masantol, in order that
The petitioner herein, an accused in a criminal case, filed a
the petitioner might cross-examine the complainant and her
motion with the Court of First Instance of Pampanga after he
witnesses in connection with their testimony. The motion was
had been bound over to that court for trial, praying that the
denied, and for that reason the present special civil action of
record of the case be remanded to the justice of the peace court
mandamus was instituted.
of Masantol, the court of origin, in order that the petitioner
might cross-examine the complainant and her witnesses in It is evident that the refusal or waiver of the petitioner to
connection with their testimony, on the strength of which present his evidence during the investigation in the justice of the
warrant was issued for the arrest of the accused. The motion was peace, was not a waiver of his alleged right to be confronted with
denied and that denial is the subject matter of this proceeding. and cross-examine the witnesses for the prosecution, that is, of
the preliminary investigation provided for in General Order No.
According to the memorandum submitted by the petitioner's
58 and Act No. 194, to which he claims to be entitled, as shown
attorney to the Court of First Instance in support of his motion,
by the fact that, as soon as the case was forwarded to the Court
the accused, assisted by counsel, appeared at the preliminary
of First Instance, counsel for the petitioner filed a motion with
investigation. In that investigation, the justice of the peace
said court to remand the case to the Justice of the Peace of
informed him of the charges and asked him if he pleaded guilty
Masantol ordering the latter to make said preliminary
or not guilty, upon which he entered the plea of not guilty. "Then
investigation. His motion having been denied, the petitioner has
his counsel moved that the complainant present her evidence so
filed the present action in which he squarely attacks the validity
that she and her witnesses could be examined and cross-
of the provision of section 11, Rule 108, on the ground that it
examined in the manner and form provided by law." The fiscal
deprives him of the right to be confronted with and cross-
and the private prosecutor objected, invoking section 11 of rule
examine the witnesses for the prosecution, contrary to the
108, and the objection was sustained. "In view thereof, the
provision of section 13, Article VIII, of the Constitution.
accused's counsel announced his intention to renounce his right
to present evidence," and the justice of the peace forwarded the In the case of Dequito and Saling Buhay vs. Arellano, No. L-
case to the court of first instance. 1336, we did not discuss and decide the question of validity or
constitutionality of said section 11 in connection with section 1
Leaving aside the question whether the accused, after
of Rule 108, because that question was not raised therein, and
renouncing his right to present evidence, and by reason of that
we merely construed the provisions on preliminary investigation
waiver he was committed to the corresponding court for trial, is
or Rule 108. In said case the writer of this dissenting opinion
estopped, we are of the opinion that the respondent judge did
said:
not act in excess of his jurisdiction or in abuse of discretion in
refusing to grant the accused's motion to return the record for It may not be amiss to state that, modesty aside, the writer of
the purpose set out therein. In Dequito and Saling Buhay vs. this dissenting opinion, then a practising attorney, was the one
Arellano, G.R. No. L-1336, recently promulgated, in which case who prepared the draft of the Rules of Court relating to criminal
the respondent justice of the peace had allowed the accused, over procedure, and the provisions on preliminary investigation in
the complaint's objection, to recall the complainant and her the draft were the same as those of the old law, which gave the
witnesses at the preliminary investigation so that they might be defendant the right to be confronted with and to cross-examine
cross-examined, we sustained the justice of the peace's order. We the witnesses for the prosecution. But the Supreme Court
said that section 11 of Rule 108 does not curtail the sound approved and adopted in toto the draft, except the part referring
discretion of the justice of the peace on the matter. We said that to preliminary investigation which it modified, by suppressing
"while section 11 of Rule 108 defines the bounds of the said right and enacting, in its stead, the provisions of section 11
defendant's right in the preliminary investigation, there is of Rule 108 in its present form. I prefer the old to the new
nothing in it or any other law restricting the authority, inherent procedure. But I can not subscribe to the majority decision,
in a court of justice, to pursue a course of action reasonably which is a judicial legislation and makes the exercise of the right
calculated to bring out the truth." of a defendant to be confronted, with and cross-examine the
witnesses against him, to depend entirely upon the whim or
caprice of a judge or officer conducting the preliminary
But we made it clear that the "defendant can not, as a matter of investigation.
right, compel the complaint and his witnesses to repeat in his
But now the question of the validity of said section 11, Rule 108,
presence what they had said at the preliminary examination
is squarely presented to this Court for decision, we have perforce
before the issuance of the order of arrest." We called attention to
to pass upon it.
the fact that "the constitutional right of an accused to be
confronted by the witnesses against him does not apply to Section 13, Article VIII, of the Constitution prescribes that "the
preliminary hearings' nor will the absence of a preliminary Supreme Court shall have power to promulgate rules concerning
examination be an infringement of his right to confront pleading, practice and procedure in all courts, but said rules
witnesses." As a matter of fact, preliminary investigation may shall not diminish, increase or modify substantive rights." The
be done away with entirely without infringing the constitutional constitution added the last part of the above-quoted
right of an accused under the due process clause to a fair trial. constitutional precept in order to emphasize that the Supreme
Court is not empowered, and therefore can not enact or
The foregoing decision was rendered by a divided court. The
promulgate substantive laws or rules, for it is obvious that rules
minority went farther than the majority and denied even any
which diminish, increase or modify substantive rights, are
discretion on the part of the justice of the peace or judge holding
substantive and not adjective laws or rules concerning pleading,
the preliminary investigation to compel the complainant and his
practice and procedure.
witnesses to testify anew.
It does not require an elaborate arguments to show that the
Upon the foregoing considerations, the present petition is
right granted by law upon a defendant to be confronted with and
dismissed with costs against the petitioner.
cross-examine the witnesses for the prosecuted in preliminary
Moran, C.J., Paras, Pablo, Bengzon, and Briones, JJ., concur. investigation as well as in the trial of the case is a substantive
right. It is based on human experience, according to which a
Separate Opinions
person is not prone to tell a lie against another in his presence,
FERIA, J., dissenting: knowing fully well that the latter may easily contradict him, and
that the credibility of a person or veracity of his testimony may
I am sorry to dissent from the decision. be efficaciously tested by a cross-examination. It is substantive
right because by exercising it, an accused person may show, even nor will the absence of a preliminary examination be an
if he has no evidence in his favor, that the testimonies of the infringement of his right to confront witness. As a matter of fact,
witnesses for the prosecution are not sufficient to indicate that preliminary investigation may be done away with entirely
there is a probability that a crime has been committed and he is without infringing the constitutional right of an accused under
guilty thereof, and therefore the accused is entitled to be the due process clause to a fair trial." We took this ruling to be
released and not committed to prison, and thus avoid an open ample enough to dispose the constitutional question pleaded in
and public accusation of crime, the trouble, expense, and anxiety the application for certiorari. Heeding the wishes of the
of a public trial, and the corresponding anxiety or moral petitioner, we shall enlarge upon the subject.
suffering which a criminal prosecution always entails.
It is contended that section 11 of Rule 108 of the Rules of Court
This right is not a constitutional but a statutory right granted 1 infringes section 13, Article VIII, of the Constitution. 2 It is
by law to an accused outside of the City of Manila because of the said that the rule in question deals with substantive matters
usual delay in the final disposition of criminal cases in and impairs substantive rights.
provinces. The law does not grant such right to a person charged
We can not agree with this view. We are of the opinion that
with offenses triable by the Court of First Instance in the City of
section 11 of Rule 108, like its predecessors, is an adjective law
Manila, because of the promptness, actual or presumptive, with
and not a substantive law or substantive right. Substantive law
which criminal cases are tried and disposed of in the Court of
creates substantive rights and the two terms in this respect may
First Instance of said city. But this right, though not a
be said to be synonymous. Substantive rights is a term which
constitutional one, can not be modified, abridged, or diminished
includes those rights which one enjoys under the legal system
by the Supreme Court, by virtue of the rule making power
prior to the disturbance of normal relations. (60 C.J., 980.)
conferred upon this Court by the Constitution.
Substantive law is that part of the law which creates, defines
Since the provisions of section 11 of Rule 108 as construed by and regulates rights, or which regulates the rights and duties
this Court in several cases, (in which the question of which give rise to a cause of action; that part of the law which
constitutionality or validity of said section had not been squarely courts are established to administer; as opposed to adjective or
raised) do away with the defendant's right under discussion, it remedial law, which prescribes the method of enforcing rights or
follows that said section 11 diminishes the substantive right of obtains redress for their invasion. (36 C. J., 27; 52 C. J. S., 1026.)
the defendant in criminal case, and this Court has no power or
As applied to criminal law, substantive law is that which
authority to promulgate it and therefore is null and void.
declares what acts are crimes and prescribes the punishment for
The fact that the majority of this Court has ruled in the above committing them, as distinguished from the procedural law
cited case of Dequito and Saling Buhay vs. Arellano, that the which provides or regulates the steps by which one who commits
inferior or justice of the peace courts have discretion to grant a a crime is to be punished. (22 C. J. S., 49.) Preliminary
defendant's request to have the witnesses for the prosecution investigation is eminently and essentially remedial; it is the first
recalled to testify again in the presence of the defendant and be step taken in a criminal prosecution.
cross-examined by the latter, does not validate said provision;
As a rule of evidence, section 11 of Rule 108 is also procedural.
because to make the exercise of an absolute right discretionary
Evidence — which is the "the mode and manner of proving the
or dependent upon the will or discretion of the court or officer
competent facts and circumstances on which a party relies to
making the preliminary investigation, is evidently to diminish
establish the fact in dispute in judicial proceedings" — is
or modify it.
identified with and forms part of the method by which, in private
Petition is therefore granted. law, rights are enforced and redress obtained, and, in criminal
law, a law transgressor is punished. Criminal procedure refers
PERFECTO, J., dissenting:
to pleading, evidence and practice. (State vs. Capaci, 154 So.,
In our concurring and dissenting opinion in the case of Dequito 419; 179 La., 462.) the entire rules of evidence have been
and Saling Buhay vs. Arellano, No. L-1336, we said: incorporated into the Rules of Court. We can not tear down
section 11 of Rule 108 on constitutional grounds without
In our opinion, section 11 of Rule 108 must be read, interpreted, throwing out the whole code of evidence embodied in these
and applied in a way that will not contravene the constitutional Rules.
provision guaranteeing to all accused the right "to meet the
witnesses face to face." (Section 1 [17], Article III.)
Consequently, at the preliminary hearing contemplated by said In Beazell vs. Ohio, 269 U. S., 167, 70 Law. ed., 216, the United
reglementary section, the defendant is entitled as a matter of States Supreme Court said:
fundamental right to her the testimony of the witnesses for the
Expressions are to be found in earlier judicial opinions to the
prosecution and to cross-examine them.
effect that the constitutional limitation may be transgressed by
Although in such preliminary hearing the accused cannot finally alterations in the rules of evidence or procedure. See Calder vs.
be convicted, he is liable to endure the ordeal eloquently depicted Bull, 3 Dall. 386, 390, 1 L. ed., 648, 650; Cummings vs. Missouri,
in the decision, and the constitutional guarantee protects 4 Wall. 277, 326, 18 L. ed., 356, 364; Kring vs. Missouri, 107 U.
defendants, not only from the jeopardy of being finally convicted S. 221, 228, 232, 27 L. ed., 507, 508, 510, 2 Ct. Rep., 443. And
and punished, but also from the physical, mental and moral there may be procedural changes which operate to deny to the
sufferings that may unjustly be visited upon him in any one of accused a defense available under the laws in force at the time
the stages of the criminal process instituted against him. He of the commission of his offense, or which otherwise affect him
must be afforded the opportunities to have the charges against in such a harsh and arbitrary manner as to fall within the
him quashed, not only at the final hearing, but also at the constitutional prohibition. Kring vs. Missouri, 107 U. S., 221, 27
preliminary investigation, if by confronting the witnesses for the L. ed., 507, 2 Sup. Ct. Rep., 443; Thompson vs. Utah, 170 U. S.,
prosecution he can convince the court that the charges are 343, 42 L. ed., 1061, 18 Sup. Ct. Rep., 620. But it is not well
groundless. There is no justice in compelling him to undergo the settled that statutory changes in the mode of trial or the rules of
troubles of a final hearing if at the preliminary hearing the case evidence, which do not deprive the accused of a defense and
can be terminated in his favor. Otherwise, the preliminary which operate only in a limited and unsubstantial manner to his
investigation or hearing will be an empty gesture that should disadvantage, are not prohibited. A statute which, after
not have a place within the framework of dignified and solemn indictment, enlarges the class of persons who may be witnesses
judicial proceedings. at the trial, by removing the disqualification of persons
convicted of felony, is not an ex post facto law. Hopt vs. Utah,
On the strength of the above quoted opinion the opinion should 110 U. S., 575, 28 L. ed., 263, 4 Sup. Ct. Rep., 202, 4 Am. Crim.
be granted and so we vote. Rep. 417. Nor is a statute which changes the rules of evidence
Petition dismissed. after the indictment so as to render admissible against the
accused evidence previously held inadmissible, Thompson vs.
RESOLUTION Missouri, 171 U. S., 380, 43 L. ed., 204, 18 Sup. Ct. Rep., 922; or
March 8, 1949 which changes the place of trial, Gut. vs. Minnesota, 9 Wall. 35,
19 L. ed., 573; or which abolishes a court for hearing criminal
TUASON, J.: appeals, creating a new one in its stead. See Duncan vs.
Missouri, 152 U. S., 377, 382, 38 L. ed., 485, 487, 14 sup. Ct.
This cause is now before us on a motion for reconsideration.
Rep., 570.
In the decision sought to be reconsidered, we said, citing Dequito
Tested by this standard, we do not believe that the curtailment
and Saling Buhay vs. Arellano, G.R. No. L-1336: "The
of the right of an accused in a preliminary investigation to cross-
constitutional right of an accused to be confronted by the
examine the witnesses who had given evidence for his arrest is
witnesses against him does not apply to preliminary hearings;
of such importance as to offend against the constitutional
inhibition. As we have said in the beginning, preliminary creates, defines, and regulates rights as opposed to objective or
investigation is not an essential part of due process of law. It procedural law which prescribes the method of enforcing rights.
may be suppressed entirely, and if this may be done, mere What constitutes practice and procedure in the law is the mode
restriction of the privilege formerly enjoyed thereunder can not or proceeding by which a legal right is enforced, "that which
be held to fall within the constitutional prohibition. regulates the formal steps in an action or judicial proceedings;
the course of procedure in courts; the form, manner and order in
While section 11 of Rule 108 denies to the defendant the right to
which proceedings have been, and are accustomed to be had; the
cross-examine witnesses in a preliminary investigation, his
form, manner and order of carrying on and conducting suits or
right to present his witnesses remains unaffected, and his
prosecutions in the courts through their various sages according
constitutional right to be informed of the charges against him
to the principles of law and the rules laid down by the respective
both at such investigation and at the trial is unchanged. In the
courts." 31 Cyc. Law and Procedure, p. 1153; id., 32, section 405;
latter stage of the proceedings, the only stage where the
Rapalje & Lawrence's Law Dictionary; Anderson Law
guaranty of due process comes into play, he still enjoys to the
Dictionary; Bouvier's Law Dictionary.
full extent the right to be confronted by and to cross-examine the
witnesses against him. The degree of importance of a Substantive rights may be created or granted either in the
preliminary investigation to an accused may be gauged by the Constitution or in any branch of the law, civil, criminal,
fact that this formality is frequently waived. administrative or procedural law. In our old Code of Civil
Procedure, Act No. 190, as amended, there are provisions which
The distinction between "remedy" and "substantive right" is
create, define and regulate substantive rights, and many of
incapable of exact definition. The difference is somewhat a
those provisions such as those relating to guardianship,
question of degree. (Dexter vs. Edmands, 89 F., 467; Beazell vs.
adoption, evidence and many others are incorporated in the
Ohio, supra.) It is difficult to draw a line in any particular case
Rules of Court for the sake of convenience and not because this
beyond which legislative power over remedy and procedure can
Court is empowered to promulgate them as rules of court. And
pass without touching upon the substantive rights of parties
our old law of Criminal Procedure General Orders No. 58 grants
affected, as it is impossible to fix that boundary by general
the offended party the right to commence a criminal action or
condition. (State vs. Pavelick, 279 P., 1102.) This being so, it is
file a complaint against the offender and to intervene in the
inevitable that the Supreme Court in making rules should step
criminal prosecution against him, and grants the defendant in
on substantive rights, and the Constitution must be presumed
the Court of First Instance (except in the City of Manila) the
to tolerate if not to expect such incursion as does not affect the
right to bail, and to a preliminary investigation including his
accused in a harsh and arbitrary manner or deprive him of a
rights during said investigation, and the rights at the trial,
defense, but operates only in a limited and unsubstantial
which are now reproduced or incorporated in Rules 106, 108,
manner to his disadvantage. For the Court's power is not merely
110, and 111 of the Rules of Court, except the rights now in
to compile, revise or codify the rules of procedure existing at the
question. And all these, and others not necessary for us to
time of the Constitution's approval. This power is "to promulgate
mention, are obviously substantive rights.
rules concerning pleading, practice, and procedure in all courts,"
which is a power to adopt a general, complete and (1) As to the first argument, the premise "the preliminary
comprehensive system of procedure, adding new and different investigation is eminently and essentially remedial is not
rules without regard to their source and discarding old ones. correct. Undoubtedly the majority means to say procedural, in
line with the conclusion in the resolution, because remedial law
The motion is denied.
is one thing, and procedural law is another. Obviously they are
Moran, C.J., Paras, Pablo, Bengzon, Briones, and Montemayor, different branches of the law. "Remedial statute" is "a statute
JJ., concur. providing a remedy for an injury as distinguished from a penal
statute. A statute giving a party a mode of remedy for a wrong
FERIA, J., dissenting: where he had none or a different one before. . . . Remedial
I dissent. statutes are those which are made to supply such defects, and
abridge such superfluities in the common law, as arise either
The motion for reconsideration must be granted. from the general imperfections of all human law, from change of
According to the resolution, the right of a defendant to be time and circumstances, from the mistakes and unadvised
confronted with and cross-examine the witnesses for the determination of unlearned (or even learned) judges, or from any
prosecution in a preliminary investigation granted by law or other cause whatsoever." (Black's Law Dictionary, third edition,
provided for in General Orders, No. 58, as amended, in force pp. 1525, 1526.)
prior to the promulgation of the Rules of Court, is not a It is also not correct to affirm that section 11 of Rule 108 relating
substantive right but a mere matter of procedure, and therefore to right of defendant after arrest "is a rule of evidence and
this Court can suppress it in section 11, Rule 108, of the Rules therefore is also procedural." In the first place, the provisions of
of Court, for the following reasons: said section to the effect that "the defendant, after the arrest and
First. Because "preliminary investigation is eminently and his delivery to the court has the right to be informed of the
essentially remedial; it is the first step taken in a criminal complaint or information filed against him, and also to be
prosecution." . . . "As a rule of evidence, section 11 of Rule 108 is informed of the testimony and evidence presented against him,
also procedural." . . . "The entire rules of evidence have been and may be allowed to testify and present witnesses or evidence
incorporated into the Rules of Court." And therefore "we can not for him if he so desires," are not rules of evidence; and in the
tear down section 11 of Rule 108 on constitutional grounds second place, it is evident that most of the rules of evidence, if
without throwing out the whole Code of evidence embodied in not all, are substantive laws that define, create or regulate
these rules." rights, and not procedural. "Rules of evidence are substantive
rights found in common law chiefly and growing out of
Secondly. Because, "preliminary investigation is not an essential reasoning, experience and common sense of lawyers and courts."
part of due process of law. It may be suppressed entirely, and if (State vs. Pavelich, et al., 279 P., 1102.) "It is true that weighing
this may be done, mere restriction of the privilege formerly of evidence and the rules of practice with respect thereto form
enjoyed thereunder can not be held to fall within the part of the law of procedure, but the classification of proofs is
constitutional prohibition." sometime determined by the substantive law." (U. S. vs. Genato,
15 Phil., 170, 176.) How can the law on judicial notice, conclusive
Lastly. Because, "the distinction between remedy and
as well as juris tantum presumption, hearsay and best evidence
'substantive right' is incapable of exact definition. The difference
rule, parol evidence rule, interpretation of documents,
is somewhat a question of degree" . . . It is difficult to draw a line
competency of a person to testify as a witness be considered
in any particular case beyond which legislative power over
procedural?
remedy and procedure can pass without touching upon the
substantive rights of parties affected, as it is impossible to fix Therefore, the argumentative conclusion that "we can not tear
that boundary by general condition. . . . "This being so, it is down section 11 of Rule 108 on constitutional grounds without
inevitable that the Supreme Court in making rules should step throwing out the whole code of evidence embodied in these
on substantive rights, and the Constitution must be presumed Rules," is evidently wrong, not only for the reason just stated,
to tolerate if not to expect such incursion as does not affect the but because our contention that the defendant can not be
accused in a harsh and arbitrary manner or deprive him of a deprived of his right to be confronted with and cross-examine
defense, but operates only in a limited and unsubstantial the witness of the prosecution is a preliminary investigation
manner to his disadvantage." under consideration would not, if upheld, necessarily tear down
said section. Our theory, is that said section 11 should be so
Before proceeding it is necessary to distinguish substantive law
construed as to be valid and effective, that is, that if the
from procedure, for the distinction is not always well
defendant asks the court to recall the witness or witnesses for
understood. Substantive law is that part of the law which
the prosecution to testify again in his presence, and to allow the
former to cross-examine the latter, the court or officer making PERFECTO, J.:
the preliminary investigation is under obligation to grant the
We dissent. Our opinion in the Dequito case still stands. The
request. But if the defendant does not so ask the court, he should
motion for reconsideration should be granted.
be considered as waiving his right to be confronted with and
cross-examine the witness against him. Footnotes
(2) With respect to the second argument or reason, it is true that TUASON, J.:
the preliminary investigation as provided for in the General
Orders, No. 58, as amended, is not an essential part of due 1 Rights of defendant after arrest. — After the arrest of the
process of law, because "due process of law" is not iron clad in its defendant and his delivery to the court, he shall be informed of
meaning; its does not necessarily mean a particular procedure. the complaint or information filed against him. He shall also be
Due process of law simply requires a procedure that fully informed of the substance of the testimony and evidence
protects the life, liberty and property. For that reason the presented against him, and, if he desires to testify or to present
investigation to be made by the City Fiscal of the City of Manila witnesses or evidence in his favor, he may be allowed to do so.
under Act No. 612, now section 2465 of the Administrative Code, The testimony of the witnesses need not be reduced to writing
before filing an information, was considered by this Court as but that of the defendant shall be taken in writing and
sufficient to satisfy the due process of law constitutional subscribed by him.
requirement (U. S. vs. Ocampo, 18 Phil., 1; U. S. vs. Grant and 2 The Supreme Court shall have the power to promulgate
Kennedy, 18 Phil., 122). But it is also true that we have already rules concerning pleading, practice, and procedure in all
and correctly held that: "The law having explicitly recognized courts, and the admission to the practice of law. Said rules
and established that no person charged with the commission of
shall be uniform for all courts of the same grade and shall not
a crime shall be deprived of his liberty or subjected to trial
diminish, increase, or modify substantive rights. The existing
without prior preliminary investigation (provided for in General
orders, No. 58, as amended) that shall show that there are laws on pleading, practice, and procedure are hereby
reasonable grounds to believe him guilty, there can be no doubt repealed as statutes, and are declared Rules of Courts,
that the accused who is deprived of his liberty, tried and subject to the power of the Supreme Court to alter and modify
sentenced without the proper preliminary investigation having the same. The National Assembly shall have the power to
been made in his regard, is convicted without the process of law," repeal, alter, or supplement the rules concerning pleading,
(United States vs. Banzuela, 31 Phil., 564). practice, and procedure, and the admission to the practice of
law in the Philippines.Republic of the Philippines
The ruling in Beazell vs. Ohio, 269 U. S. 167, 70 Law. ed., 216,
quoted in the resolution, has no application to the present case,
for the question involved therein was the power of Congress to
alter the rules of evidence and procedure without violating the
constitutional precept that prohibits the passing of ex post facto
law, while the question herein involved is the power of the
Supreme Court to promulgate rules of pleading, practice and
procedure, which diminish the substantive right of a defendant,
expressly prohibited by the same provision of the Constitution
that confers upon this Court the power to promulgate said rules.
(3) The last reason or argument premised on the conclusion that
"the distinction between remedy and 'substantive right' is
incapable of exact definition;" indeed "the difference is
somewhat a question of degree," (Dexter vs. Edmonds, 89 F 487),
is immaterial, because, as we have already said in refuting the
majority's first reason, remedy and procedure are two
completely different things.
As above defined, substantive law is clearly differentiated from
procedural law and practice. But even assuming arguendo that
it is difficult to draw the line in any particular case beyond which
the power of the court over procedure can not pass without
touching upon the substantial right of the parties, what this
Court should do in that case would be to abstain from
promulgating such rule of procedure which many increase,
diminish or modify substantive right in order to avoid violating
the constitutional prohibition above referred to. Because as this
Supreme Court is not empowered by the Constitution to
legislate on or abrogate substantive rights, but only to
promulgate rules of pleading, practice and procedure which
"shall not diminish, increase or modify substantive rights," this
Court can not step on them in making the rules, and the
Constitution must be presumed not to tolerate nor expect such
incursion as would affect the substantive rights of the accused
in any manner.
Besides, depriving an accused of his right to be confronted and
cross-examine the witness against him in a preliminary
investigation would affect the accused not in a limited and
unsubstantial but in a harsh and arbitrary manner. The
testimony of a witness given in the absence of the defendant and
without an opportunity on the part of the latter to cross-examine
him is a hearsay evidence, and it should not be admitted against
the defendant in a preliminary investigation that is granted to
the latter as a protection against hasty, malicious and
oppressive prosecutions (U. S. vs. Grant and Kennedy, supra).
Otherwise, an accused who is innocent and should not be
arrested, or if arrested should be released immediately a short
time after his arrest after the preliminary investigation, would
have to be held for trial and wait for a considerable period of
time until the case is tried and acquitted after trial by the Courts
of First Instance in provinces on account of the admission of such
evidence in the preliminary investigation, evidence not
admissible at the trial.
Therefore, the motion for reconsideration is granted, and after
the necessary proceedings the decision of the majority reversed
or modified in accordance with my dissenting opinion.
G.R. Nos. 108135-36 September 30, 1999 process. Galban made no recommendation, however, as to the
validity of Tanduay's claim. On October 13, 1987, Pareño sent a
POTENCIANA M. EVANGELISTA, petitioner,
memorandum to Larin recommending that the request for tax
vs.
credit of Tanduay Distillery, Inc. be given due course on the
THE PEOPLE OF THE PHILIPPINES and THE HONORABLE
ground that Tanduay as a rectifier is an extension of the distiller
SANDIGANBAYAN (FIRST DIVISION), respondents.
and its products are subject of the payment of specific tax and
YNARES-SANTIAGO, J.: not ad valorem tax. On same date, Larin signed a memorandum
for the Deputy Commissioner of the BIR recommending that the
Before us is a petition for review on certiorari assailing the claim of Tanduay Distillery Inc., for the alleged erroneous
decision of the Sandiganbayan dated September 11, 1992 in payment of ad valorem taxes in the amount of P180,701,682.00
Criminal Case Nos. 14208-14209 finding petitioner Potenciana be tax credited as in the case of Distilleria Limtuaco and Co. Inc.
M. Evangelista guilty beyond reasonable doubt of violation of
Section 268, paragraph 4 of the National Internal Revenue Code On October 13, 1987, Eufracio D. Santos, Deputy Commissioner
(NIRC) and Section 3(e) of R.A. No. 3019, otherwise known as of the BIR, approved the recommendation made by Larin in his
the Anti-Graft and Corrupt Practices Act. memorandum and thereafter signed Tax Credit Memo No. 5177
in the amount of P180,701,682.00 in favor of Tanduay Distillery,
Tanduay Distillery Inc., is a company engaged in the Inc. The approval was based on the following:
manufacture and sale of rum, gin, vodka and other spirits. On
September 17, 1987, Tanduay filed with the Bureau of Internal 1. The memorandum of the Assistant Commissioner for Specific
Revenue (BIR) an application for tax credit in the sum of Tax Office, Aquilino T. Larin;
P180,701,682.00 representing alleged erroneous payments
2. The memorandum of the Chief of Alcohol Division, Teodoro D.
for ad valorem taxes covering the period January 1, 1986 to
Pareño; and
August 31, 1987. Attached to the application was a schedule
of ad valorem taxes 1 allegedly paid by Tanduay with supporting 3. The 1st indorsement/certification issued by Chief of Revenue
confirmation receipts. The application was filed with the Specific Accounting Division, herein petitioner Potenciano M.
Tax Office of the BIR headed by Aquilino T. Larin. Evangelista.3
Tanduay anchored its claim for tax credit on the ground that it Immediately after the approval of Tax Credit Memo No. 5177,
is a rectifier which is liable for specific taxes and not ad Tanduay availed of the tax credit on various dates covering the
valorem taxes, citing a BIR ruling in a case involving Distilleria period from October 19, 1987 to June 20, 1988. 4 However, on
Limtuaco and Co. Inc. The ruling states that rectifiers are June 22, 1988, a certain Ruperto Lim wrote a letter-complaint
considered as extensions of distillers inasmuch as they purchase to BIR Commissioner Bienvenido Tan, Jr. alleging that the
alcohol from distillers without prepayment of the specific tax. grant of Tax Credit Memo No. 5177 in favor of Tanduay was
Since specific tax should be paid by the distiller before its irregular and anomalous. More specifically, Lim pointed out
removal from the place of production, the burden of payment that Tanduay had paid only P73,614,287.20 5 by way of ad
therefor is shifted to and assumed by the rectifier. valorem taxes to the BIR from January 1, 1986 to August 31,
1987 and not P180,701,682.00 as claimed. Deputy
In its application for tax credit, Tanduay stated that it is a
Commissioner Santos, in approving TCM No. 5177, failed to
rectifier with Assessment No. A-1-8 and a compounder with
notice that petitioner's 1st indorsement contained a listing of
Assessment No. A-1-8-A, although compounding is only
TNC indicating tax payments received from Tanduay under two
incidental to rectification of its products. Consequently, before
categories, i.e., TNC 3011-0011 and TNC 0000-0000. As earlier
the tax credit being sought by Tanduay could be granted, the
mentioned, a total of 149 confirmation receipts were listed as tax
BIR's Tax and Alcohol Division, headed by Teodoro D. Pareño,
payments under TNC 3011-0011 while a total of 88 confirmation
had to verify first whether Tanduay's products are distilled
receipts were listed as tax payments under TNC 0000-0000.
spirits or compounded liquor based on how they are
Deputy Commissioner Santos admitted that while he knew that
manufactured. To do this, Justino Galban, Head of the
there was a tax numeric code for the kind of tax paid, he did not
Compounders, Rectifiers and Repackers Section under the
know which particular numbers corresponded to a particular tax
Alcohol and Tax Division, had to look into the technical process
revenue. These codes are contained in the "Handbook of Tax
for the manufacture of rum, gin, vodka and other intoxicating
Numeric Code of the Revenue Sources," wherein it is stated that
beverages of Tanduay. If it is determined that the products can
TNC No. 3011-0011 stands for specific tax on domestic and
be properly classified as distilled spirits based on how they are
distilled spirits, TNC No. 3023-2001 for ad valorem on
manufactured, then Tanduay could properly claim for a tax
compounded liquors and TNC No. 0000-0000 for unclassified
credit on its payments of ad valorem taxes in accordance with
taxes. Had Deputy Commissioner Santos looked these up in the
Section 121 of the NIRC and the Limtuaco ruling that rectifiers,
Handbook, he would have known that Tanduay was not entitled
as an extension of distillers, are subject to specific and not ad
to the whole sum of P180,701,682.00. Santos, however,
valorem taxes. Finally, it had to be verified by the Revenue
contended that the practice of using numeric tax codes is for the
Accounting Division (RAD) headed by petitioner Potenciana M.
purpose of checking remittances of payments by the banks
Evangelista whether Tanduay actually paid the
which properly falls under the jurisdiction of the RAD. He
P180,701,682.00 as ad valorem taxes to the BIR which it claims
claimed that he merely relied on the certification of his
it paid.1âwphi1.nêt
subordinates, inasmuch as his work was merely confirmational.
On September 23, 1987, Larin, in a marginal handwritten note,
On January 3, 1990, two informations were filed with the
directed Pareño to prepare a request to the Revenue Accounting
Sandiganbayan against Aquilino T. Larin, Teodoro D. Pareño,
Division (RAD) for the authentication of the confirmation
Justino E. Galban, Jr. and petitioner Potenciana M. Evangelista
receipts covering the tax payments sought to be credited.
for violation of Section 268, Par. 4 of the National Internal
Accordingly, a memorandum, signed by Larin, was sent to the
Revenue Code (NIRC), docketed as Criminal Case No. 14208,
RAD headed by petitioner Evangelista requesting verification
and for violation of Section 3(e) of R.A. No. 3019 of the Anti-Graft
and authentication whether the amounts reflected in the
and Corrupt Practices Act, docketed as Criminal Case No.
confirmation receipts submitted by Tanduay were actually paid
14209.
to the BIR as ad valorem taxes.
Sec. 268, par. 4 of the NIRC reads:
Larin's a Memorandum was received by the Records and
Administrative Section (RAS), a unit under RAD, on September Sec. 268. Violations committed by government enforcement
24, 1987. In due course, RAS made the necessary verification on officers — Every official agent or employee of the Bureau of
the basis of its records and prepared the corresponding Internal Revenue or any other agency of the government
verification 2 in the form of a 1st Indorsement to the Specific Tax charged with the enforcement of the provisions of this Code, who
Office on September 25, 1987. The indorsement, which was is guilty of any of the offenses herein below specified, shall upon
signed by petitioner Evangelista, contained a listing of two conviction for each act or omission, be fined in the sum of not
hundred thirty seven (237) confirmation receipts in various less than five thousand pesos but not more than fifty thousand
amounts under two categories designated with Tax Numeric pesos or imprisoned for a term of not less than one year but not
Code (TNC) 3011-0011 and TNC 0000-0000. A total of 149 more than ten years or both;
confirmation receipts covering P102,519,100.00 were listed as
xxx xxx xxx
tax payments under TNC 3011-0011 and a total of 88
confirmation receipts covering P78,182,582.00 were listed as tax 4. Those who conspire or collude with one another or others to
receipts under TNC 0000-0000. defraud the revenues or otherwise violate the provisions of this
Code.
A memorandum was thereafter prepared by Galban as Chief of
the Compounders and Rectifier's Section addressed to Pareño On the other hand, Section 3 (e) of R.A. No. 3019 of the Anti-
describing the technical aspects of Tanduay's manufacturing Graft and Corrupt Practices Act states:
Sec. 3. Corrupt Practices of Public Officers — in addition to acts Her motion for reconsideration having been denied by the
or omissions of public officers already penalized by existing law, Sandiganbayan, Evangelista filed the instant petition
the following shall constitute corrupt practices of any public contending that the 1st indorsement was issued after proper
officer and are hereby declared to be unlawful; verification of the data given to the RAD against available
records of the division. Petitioner claims the certification issued
xxx xxx xxx
was patterned after the prescribed format as a routine response
e. Causing any undue injury to any party including the to an official request of the Assistant Commissioner for Excise
government, or giving any private party any unwarranted Tax Office. Petitioner insists that she could not be held liable
benefit, advantage or preference in the discharge of his official because there was no mention in the 1st indorsement that the
administrative or judicial functions through manifest partiality, payments made by Tanduay Distillery Inc. were actually for ad
evident bad faith or gross inexcusable negligence. valorem taxes for which it could claim tax credit in the sum of
P180,701,682.00.
Upon arraignment, all the accused including petitioner
Evangelista pleaded not guilty. They raised the defense that no On November 29, 1993, the Office of the Solicitor General filed
undue injury had been caused to the government and no a manifestation and motion in lieu of comment recommending
unwarranted benefits had been accorded to Tanduay inasmuch the acquittal of petitioner. The Manifestation stated that:
as Tanduay had already fully reimbursed the BIR of the "Although petitioner herself may not have known the exact kind
availments found to have been unjustified or improper in the of taxes covered by the TNC reflected in her 1st Indorsement,
amount of P73,000,000.00 and had, additionally paid this does not in any way make her guilty of gross negligence. Her
P11,000,000.00 by way of penalties, or a total of P84,000,000.00. duty was purely ministerial in nature, that is, to report all data
pertinent to Tanduay's tax payments on file with RAD. She was
Petitioner Evangelista, for her part, did not deny having issued not duty-bound to report her personal perception,
the 1st indorsement. However, instead of taking the witness understanding or conclusion regarding the significance or
stand, she, like her three co-accused, refused to testify and opted meaning of the data she had reported. It was Larin and Pareño's
to present as evidence in her behalf the following paragraphs duty to do so." 7
from her letter of explanation dated November 21, 1988 to BIR
Commissioner Bienvenido Tan which read as follows: In view of the position taken by the Office of the Solicitor
General, the Ombudsman and the Office of the Special
Confirmation receipts do not contain any information as to the Prosecutor filed a motion for leave of court to file comment which
kind of tax or TNC. Thus, there can never be any verification was granted. In its comment, the Office of the Ombudsman and
and certification as to kind of tax. What can only be the Office of the Special Prosecutor sought petitioner's
verified/certified by this Division as required in existing orders conviction on the ground that the decision of the Sandiganbayan
is the fact that the total amount of each CR were remitted to the on the two cases filed against her is in accord with applicable
BIR by the collecting bank on the given date. jurisprudence and supported by factual evidence.
xxx xxx xxx We find no reason to overturn petitioner's conviction for gross
In the case of Tanduay Distillery. I did not know at the time I negligence.
signed the indorsement what the TNC therein stand for because Before 1969, internal revenue taxes were designated by
I was informing (sic) was that payments were received by BIR. I descriptive words. This, however, proved to be unsatisfactory
just became curious to know its meaning and verify the same inasmuch as tax data could not easily be stored and processed
from the Handbook of Tax Numeric Codes of Revenue Sources, by the computer, resulting in delayed compilation and retrieval
1985 when a certain Atty. Villavicencio called me up to his Office of the data.
at the Internal Security Division some two weeks ago to ask
questions on the subject indorsement. To facilitate the preparation of statistical and other
management reports, the BIR adopted the Tax Numeric Code
In her letter, petitioner also categorically stated that, "Upon System under which a numeric code stands for kinds or classes
signing of this indorsement/certification I or whoever is head of of tax and their applicable rate. For this purpose, a "Handbook
this Division, for that matter, do not know what TNC stands on Tax Numeric Codes of the Revenue Sources," was issued for
for." 6 BIR use. 8 Under this system, TNC No. 3011-0011 was made to
On September 18, 1992, Aquilino T. Larin, Teodoro D. Pareño stand for "specific tax on domestic distilled spirits," 9 TNC No.
and petitioner Potenciana M. Evangelista were convicted and 3023-2001 for ad valorem on compounded liquors, 10 and TNC
sentenced to suffer the penalty of imprisonment for an No. 0000-0000 for unclassified taxes. Under various BIR
indeterminate period of 4 years, 8 months and 1 day by way of Revenue Memorandum Orders and Circulars, the use of TNC
minimum to 6 years and 8 months by way of maximum, and a instead of word descriptions to identify and record tax payments
fine of Twenty Thousand Pesos (P20,000.00) each in Criminal was made mandatory. 11 It may not be amiss to note at this point
Case No. 14208; while in Criminal Case No. 124209, Aquilino T. however that despite the fact that the use of TNC to identify and
Larin, Teodoro D. Pareño and petitioner Potenciana M. record tax payments was made mandatory, it had become
Evangelista were convicted and sentenced to suffer obvious during trial that not all employees of the BIR were well
imprisonment for an indeterminate period ranging from a acquainted with the meanings of the TNC. Even Deputy
minimum of 9 years and 1 month to a maximum of 12 years. The Commissioner Santos who approved the Tax Credit Memo and
penalty of perpetual disqualification from public office was the BIR Commissioner himself, Bienvenido Tan, were not
likewise imposed upon the three accused. Justino Galban was familiar with the corresponding TNC numbers for a particular
acquitted inasmuch as his only participation was the revenue. Not surprisingly, petitioner and the three other
preparation of the memorandum describing Tanduay's accused claimed they too were unaware of the meaning of TNC.
manufacturing process as rectifier and compounder of liquors. In the case at bar, petitioner is the head of the Revenue
Petitioner Evangelista was convicted on the basis of the 1st Accounting Division (RAD). Under Revenue Administrative
indorsement issued by her which the Sandiganbayan Order No. 5-84, one of the functions of the said division is to
condemned as a "studied non-response" to Larin's query as to "Confirm and certify as to the correctness of payment and other
how much the BIR actually received as payment for ad informations verified from accounting records and documents."
valorem taxes from Tanduay. The Sandiganbayan held that As head of the RAD, petitioner holds an extremely sensitive
Evangelista's indorsement could have been explicitly and position, whose certification to the payments received by the
directly responsive because Larin's memo was clear and the Bureau from taxpayers determines whether the taxpayer is
purpose for his query was specific: How much was paid by entitled to a refund or a tax credit. Despite her sensitive
Tanduay to the BIR by way of ad valorem taxes for the purpose position, however, and despite her own admission from the
of computing the amount properly creditable to Tanduay for pleadings that the use of TNC instead of word descriptions to
refund? However, Evangelista's response merely enumerated a identify and record tax payments were made mandatory since
set of confirmation receipts with the corresponding TNC 1969, petitioner claims that she practically had no idea what the
numbers despite the fact that several employees of the Bureau TNC meant until a year after having issued the 1st indorsement,
were not well acquainted with the use and meaning of TNCs. when investigation regarding the tax credits given to Tanduay
Petitioner's ambiguous reply, according to the Sandiganbayan, was well under way. Petitioner further claims that there was no
permitted her superiors to equivocate as to its meaning which way she could have verified whether the payments made by
resulted in the improper grant of tax credits to Tanduay. The Tanduay were for ad valorem taxes because the confirmation
Sandiganbayan thus concluded that the gross negligence of the receipts do not contain any information as to the kind of tax paid
petitioner and its confluence with the acts of accused Larin and by the taxpayer nor the requisite TNC.
Pareño in recommending the approval of Tanduay's application We are not impressed.
for tax credit adequately proved conspiracy among them.
A payment order, which contains the particular kind of tax to be Petitioner asserts that there was nothing untruthful in the
paid and the corresponding TNC, is issued to a taxpayer to be certification she issued regarding the tax payments received by
presented by him to the bank where he pays his taxes. When the the BIR from Tanduay. Petitioner further claims that the first
payment order is presented, a confirmation receipt is issued by endorsement was patterned after the standard format used by
the bank evidencing payment of the tax. Although it is not stated the division whenever a request is made for verification of
in the confirmation receipts what kind of tax is being paid by the payments and she could not be faulted for adhering to the
taxpayer nor the TNC, the BIR's copy of the confirmation receipt mandate of the various memoranda issued regarding the use of
is usually attached to the original copy of the Payment Order TNCs.
(PO) which in turn specifies the kind of tax paid and the TNC.
Admittedly, the use of TNCs to record tax payments is mandated
Since petitioner's division is the repository of all accounting
by various memoranda issued by the Bureau. Petitioner,
records of the Bureau, it should have copies of the payment
however, as previously stated, never exerted any effort to find
orders for the corresponding confirmation receipts and therefore
out what the TNCs meant. Had she been more circumspect, she
petitioner could have easily verified what kind of taxes were
would have appreciated the significance of her certification. She
covered by the payments made by Tanduay from January 1,
would have known that Tanduay was not entitled to the whole
1986 to August 31, 1987. Moreover, petitioner's claim that there
amount of P180,701,682.00 it was claiming as tax credit. She
were no pertinent records, codes and references that could be
would have been forewarned of the implied consequences of her
used to distinguish the confirmation receipts as either for ad
certification and could have accordingly informed her superiors
valorem or specific tax is belied by the denial of her immediate
and her co-accused whether Tanduay was really entitled to a tax
superior, Melchor Ramos, who stated that the RAD has in its
credit at all or not. That her co-accused were mandated to know
possession the monthly Alpha List of Taxpayers issued in 1986
what TNC meant is beside the point. Petitioner, by the position
as well as the collection report by agent banks (Abstract of
she occupies, is mandated to know the kind of taxes for which
Collection thru Banks) for the same year which were prepared
payment is made by the taxpayer claiming a refund before she
by the Revenue Information System Service, Inc. (RISSI) based
issues a certification because it is on the basis of this
on the confirmation receipts transmitted to them by the field
certification that it is determined whether tax credits should be
offices and the PO/CR Monitoring Division. Petitioner's
granted at all. Certainly, the petitioner held a sensitive position
immediate superior added that these records contain the TNC of
with a function that could hardly be classified as ministerial. As
every receipt listed therein and thus it would be very easy to
head of the division which is supposedly in charge of encoding
identify the kind of tax paid by the taxpayer by simply referring
payment received by the Bureau from taxpayers and who is
to the Handbook on Numeric Tax Code. 12
supposedly expected more than anyone to know the meaning of
Clearly, petitioner's alleged lack of knowledge as to what TNC the TNC, petitioner issued an indorsement containing cryptic
meant was grossly inexcusable if not improbable considering codes which she admittedly did not know the meaning of and
that the use of TNC to record tax payments received by the expecting her superiors, who were not even in charge of
Bureau is directly connected with the duties of her office. If there recording tax payments and who relied on her certification, to be
is anyone in the. Bureau who was expected to have a working familiar with.
knowledge of the TNC, it should have been petitioner because
Petitioner cannot take refuge in the claim that the 1st
the use of TNC was precisely meant to facilitate the recording of
indorsement was issued in the usual format as a routine
the tax payments received by the Bureau for verification
response to an official request of the Commissioner of Excise Tax
purposes. Petitioner as head of the Revenue Accounting Division
after it has verified the data given to them against available
was called upon to verify whether the schedule of payments
records of the division. We fully concur with the observation of
submitted by Tanduay in support of its application for tax credit
the Sandiganbayan that —
were payments for ad valorem taxes. Petitioner had submitted
a list of payments made by Tanduay with the corresponding to begin with, nobody has demonstrated that the text of the first
bank account nos., amounts and TNC Nos., as required by the indorsement of the Tanduay matter and on the Limtuaco matter
Memorandum Circular. But, as admitted by petitioner herself, were the correct responses to the query made by Larin. As
she had not the slightest idea what TNC meant, despite the fact aforesaid, nobody, whether for or from the accused, testified.
that they are mandated by the Bureau to use it accordingly in
identifying and recording tax payments. And since nobody actually testified on any of the documents of
the accused — not even her boss, Assistant Commissioner
We have a situation where the Head of the Division, which is in Melchor S. Ramos — so that a full clarification could be had
charge of recording tax payments received by the Bureau and thereon, this court cannot be deemed to accept his written
whose certification is relied upon by the Bureau in the granting statements unqualifiedly.
of tax credits, does not even know or care to know what are the
kind of tax payments received by the Bureau. For all intents and While petitioner was grossly negligent in her duties for which
purposes, petitioner issued an indorsement certifying a whole she could be held liable under R.A. No. 3019 (e), petitioner may
schedule of payments made by the taxpayer without a not be held liable for violation of Section 268(4) of the National
specification of the kinds of taxes since she did not have any idea Internal Revenue Code inasmuch as it has not been proven that
what TNC meant. It could not even be said that petitioner made there was an actual agreement between her and her co-accused
an error of judgment in answering Larin's query with an to grant unwarranted tax credits to Tanduay. What is punished
enumeration of TNCs instead of opting for a more explicit in said Sec. 268(4) is the act of conspiring and colluding to
response since petitioner, not having any idea as to what the defraud the government of revenues. It is well entrenched in our
TNCs meant, could not have couched the statement of her 1st jurisprudence that conspiracy must be shown to exist as clearly
Indorsement in any other way. She could not have made a more and as convincingly as the commission of the offense itself.
explicit answer to the query of Larin inasmuch as she did not Absent any act or circumstance from which may be logically
even know or care to find out whether the BIR actually received inferred the existence of a common design among the accused to
payments for ad valoremtaxes from Tanduay. Clearly, there is commit the crime, the theory of conspiracy remains a
no doubt that petitioner was grossly negligent in discharging her speculation not a fact. 15
duties. As defined in the case of Alejandro v. People, 13 gross Significantly, in the separate appeal of petitioner's two other co-
negligence is "negligence characterized by want of even slight accused to this Court, entitled Pareño vs. Sandiganbayan and
care, acting or omitting to act in a situation where there is a duty the People of the Philippines, 16 we ruled that "the acts of
to act, not inadvertently but willfully and intentionally with a petitioners and that of Evangelista may be considered concerted
conscious indifference to consequences insofar as other persons only because they performed interrelated functions but there is
may be affected. It is the omission of that care which even no actual proof that conspiracy existed between the parties."
inattentive and thoughtless men never fail to take on their own
property." The test to determine the existence of negligence in a WHEREFORE, the decision of the Sandiganbayan in Criminal
particular case may be stated in this wise: "Did the defendant in Case No. 14208 convicting petitioner Potenciana M. Evangelista
doing the negligent act use that reasonable care and caution of violation of Section 268 (4) of the National Internal Revenue
which an ordinarily prudent person would have used in the same Code is REVERSED and petitioner is accordingly ACQUITTED.
situation? If not, then he is guilty of negligence. The law here in The decision of the Sandiganbayan in Criminal Case No. 14209
effect adopts the standard supposed to be exercised by the convicting petitioner of violation of R.A. 3019 (e) of the Anti-
discreet paterfamilias of Roman Law. The existence of Graft and Corrupt Practices Act is AFFIRMED with the
negligence in a given case is not determined by reference to the MODIFICATION that petitioner is sentenced to suffer an
personal judgment of the actor in the situation before him. The indeterminate penalty of imprisonment of six (6) years and one
law considers what would be reckless, blameworthy or negligent month as minimum to twelve (12) years as maximum. The
in the man of ordinary intelligence and prudence and penalty of perpetual disqualification from public office is
determines liability by that." 14 likewise imposed on her. No costs.1âwphi1.nêt
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.

EN BANC
G.R. No. L-34105 February 4, 1983
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, were transported by the robbers (tsn, pp. 29-36, Oct. 23, 1961;
vs. tsn, pp. 120-125, June 13, 1961).
TIMOTEO CABURAL, CIRIACO YANGYANG, BENJAMIN
The accident having been reported, both the local police as well
LASPONIA, and LEONIDE CABUAL, accussed,TIMOTEO
as the Philippine Constabulary stationed in Iligan conducted
CABURAL and CIRIACO YANGYANG, defendants-appellants.
their investigation. In the course of the investigation, members
The Solicitor General for plaintiff-appellee. of the Philippine Constabulary found a.30-caliber carbine with
4 magazines and a .45 caliber pistol well wrapped in a banca at
Benjamin A. Gravino for private respondents.
the shore behind the house of the accused Benjamin Lasponia
Abdon A. Arriba counsel for defendant-appellants. This led to the investigation of Lasponia who subsequently
admitted the crime and pointed to his companions that night.
On September 18, 1960, Benjamin Lasponia signed a confession
RELOVA, J.: before Assistant Fiscal Leonardo Magsalin, Exhibits B, B-1, B-
2, and B3 at the PC headquarters in Iligan (pp. 1025-1028, Vol.
This is an appeal from the decision of the Court of First Instance III Rec.). He confessed to the last detail his participation in the
of Lanao del Norte, dated June 4, 1970, convicting Timoteo crime. On September 19, 1960, the accused Leonide Cabual
Cabural of the crime of Robbery with Rape and sentencing him subscribed to an affidavit before the same Fiscal .Magsalin
to suffer the penalty of Reclusion Perpetua; and, convicting regarding his participation and that of -his co-accused in the
Leonide Cabual, Benjamin Lasponia and Ciriaco Yangyang of robbery of Kim San Milling in the early morning of September
the crime of Robbery and sentencing each of them to suffer 14, 1960, Exhibits C, C-1, C-2, C3 and C5 (pp. 1029-1034, Vol.
imprisonment of six (6) years and one (1) day of Prision Mayor, III, Record (l). Ciriaco Yangyang followed. He subscribed his
as minimum, to ten (10) years of Prision Mayor, as maximum; to confession before Special Counsel Dominador Padilla in the
indemnify the offended party in the sum of P9,435.50, without Office of the City Fiscal of Iligan on September 26, 960, Exhibits
subsidiary imprisonment in case of insolvency and to pay H, H-1 and H2 (pp. 1036-1038, Vol. III, Record, See complete
proportionately the costs of the proceedings. testimony of Eustaquio Cabides, tsn, pp- 52-72, July 17, 1969).
The statement of facts in the brief filed by the People of the On September 21, 1960, (1) Timoteo Cabural, alias Romeo alias
Philippines is as follows: Tiyoy (2) Benjamin Lasponia; (3) Leonide Cabual alias Eddie; (4)
... [A]t about 2:00 o'clock in the morning of September 14, 1960, Ciriaco Yangyang; (5) William Tate alias Negro; (6) Fausto
three masked men entered the building of the Kim San Milling Dacera and, (7) Alfonso Caloy-on alias Pablo, were charged
in Palao City of Iligan thru an opening of the roof above the before the Court of First Instance of Lanao del Norte of the crime
kitchen that was being repaired and forced themselves inside a of Robbery in Band with Rape, in an information filed by the
room where Pua Lim Pin Bebencio Palang, Sy Chua Tian and City Fiscal of Iligan City. The crime charged was allegedly
Siao Chou were sleeping (tsn, pp. 78-82, May 31, 1965; tsn, pp. committed as follows:
141-148, June 13, 1961). The masked men, at gunpoint, hogtied That on or about September 14, 1960 in the City of Iligan
the four occupants of the room and commanding them to lie on Philippines, and within the jurisdiction of this Honorable Court,
the floor, face down, were all covered with blankets (tsn, pp. 82- the said accused, in company with one Fred Ybañez alias
83, Ibid). The inmates of the room heard That the cabinets were Godofredo Camisic and one John Doe, who are still-at-large,
being ransacked (tsn, p. 82, Ibid). As this was going on, one of conspiring and confederating together and mutually helping one
the men approached Pua Lim Pin to ask him if he could open the another, and armed with deadly weapons, all unlicensed, to wit:
safe to which he answered in the negative as he was a mere carbines, revolvers, tommy guns, garand rifles and knives, did
employee of the firm (tsn, p. 83, May 31, 1961). An hour later, then and there willfully, unlawfully and feloniously, with intent
one of the men approached Sy Chua Tian (also See Chou Kian of gain and by means of violence against and intimidation of
tsn, p. 89, Ibid) and told him: 'now is 3:30, if by 4:00 the safe is persons, and with the use of force upon things, to wit: by passing
not open we will kill you.' (tsn, p. 94, Ibid.) through an opening not intended for entrance or egress, enter
As this was going on, another episode was taking place inside the main building and office of the Kim San Milling Company,
the next room where the maids were sleeping (tsn, p. 91, May an inhabited building, and once inside, did then and there
31, 1961). Restituta Biosano Panchita Maghanoy and Agripina willfully, unlawfully and feloniously take, steal, rob and carry
Maglangit have retired at about 10:00 o'clock in the evening of away therefrom, the following personal properties, to wit:
September 13, 1960, after their chores were performed (tsn, p.
91, Ibid, tsn, p. 10, May 7,1961; tsn, p. 13, May 29,1961; tsn, p. Cashmoney......................................................... P5,972.00
25, Ibid). At about 2:00 o'clock the following morning, they were
awakened by two persons, one holding a pistol and the other Wrist watch 'Technos'...................................... 100.00
holding a hunting knife. Like the fate of the four inmates of the
other room, the maids were all hogtied, made to lie on the floor,
face downward, and were all covered with blankets (tsn, pp. 25- Gold Ring............................................................ 20.00.
29, May 29, 1961).1äwphï1.ñët The two then left the room (tsn,
p. 29, Ibid). After two hours later, one of the two men re- Sunglasses......................................................... 30.00
appeared in the room and after discovering that Agripina
Maglangit had freed her hands, he showed anger and remarked
that he would separate her from the rest. With his pistol pointed Four pieces of golden bracelets...................... 1,400.00
at her, he took her outside the building to a secluded place
within the Kim San Compound (tsn, pp. 30-33, Ibid.). Here, with Chinese gold ring with dark blue stone......... 90.00
her hands tied, she was made to lie down flat on the ground face
upwards. He then raised her skirt, tied down her panties, and
had sexual intercourse with her. She was unable to resist him One gold ring with brilliant stone................... 400.00
and fight back because at the time she had lost her strength not
to mention the fact that she was deprived of the use of her hands One Chinese gold necklace with red stone... 150.00
that were both tied together. The rape having been
consummated, he pulled her left arm so she could stand up. He
then left her (tsn, pp. 33-35, Ibid.). One pair of earrings Chinese gold with.........
Agripina Maglangit recognized the features of the man that
raped her. She Identified her rapist to be the accused Timoteo red stone....................................................... 60.00
Cabural (tsn, pp. 36-39, Ibid.).
At about four o'clock that morning (September 14, 1960) all the Three pairs of earrings with pearls................ 120.00
intruders must have left because the four men that were hogtied
in the other room noticed complete silence They each struggled Four Chinese gold rings with stones of........
to free themselves which they succeeded. Maghanoy lost her
Alosa 15-jewel watch costing her P65.00 (tsn, p. 22, May 29,
1961); Sy Chua Tian (See Chou Kian lost his Omega automatic different colors................................................. 140.00
wrist watch valued in the amount of P385.00 that was snatched
from his wrist by one of the robbers, besides his wallet
Sweepstakes tickets......................................... 45.00
containing P264.00 in paper currency (tsn, p. 85 and p. 95, May
31, 1961). After the robbers left, the inmates discovered the cash
and some personal belongings in the total amount of P9,435.50
CONFESSIONS ARE ADMISSIBLE AS EVIDENCE AND
One American gold Lady's ring..................... COULD BE MADE A LEGAL, BASIS FOR THE
CONVICTIONS OF ALL ACCUSED.
with dark pink stone........................... 30.00 III.
IN HOLDING THAT THE THREE EXTRA-JUDICIAL
Four men's rings............................................... 32.00 CONFESSIONS BY THREE ACCUSED BEING
INTERLOCKING CONFESSIONS IS ENOUGH AND
SUFFICIENT TO SUSTAIN THEIR CONVICTIONS ON
One and a half dozens handkerchiefs.......... 34.50
PROOF BEYOND REASONABLE DOUBT;
IV.
Lady's wrist watch.......................................... 30.00
IN HOLDING THAT THE THREE EXTRA-JUDICIAL
CONFESSIONS OF THREE ACCUSED INTERLOCKED
Three ladies watches...................................... 69.00
WITH EACH OTHER EVEN IF INADMISSIBLE AS
EVIDENCE BECAUSE OBTAINED THROUGH FORCE,
One men's watch............................................. 60.00 VIOLENCE, INTIMIDATION, ETC. IS ENOUGH TO
SUSTAIN THE CONVICTION OF ACCUSED TIMOTEO
CABURAL BECAUSE HE WAS SUFFICIENTLY IdENTIFIED
One Chinese gold necklace........................... 58.00
BY VICTIM AGRIPINA MAGLANGIT AS HER RAPIST;
V.
One Lady's wrist watch.................................. 15.00
IN HOLDING THAT THE PROSECUTION EVIDENCE FOR
THE CONVICTIONS OF ACCUSED REACHED THE LEGAL
One Chinese gold necklace........................... 58.00
STANDARD OF PROOF BEYOND REASONABLE DOUBT AS
REQUIRED BY LAW.
One Men's wrist watch................................... 60.00
On October 14, 1971, this Court granted the motion of Leonide
Cabual to withdraw his appeal (p. 60, rollo).
One Men's wrist watch 'Tugaris'................... 65.00
Appellant Cabural declared that from 2:00 in the afternoon of
September 13, 1960 to 3:00 in the early morning of September
Knife.................................................................. 12.00 14, 1960, he was playing mahjong with Virginia Cruz Maruhom
and one Gomer in the store of Ason in Maigo, Lanao del Norte
which is about 37 kilometers from Iligan City and would take
One Men's wrist watch...................................
about two (2) hours by us or about one (1) hour by car to
negotiate the distance between the two places; that he could not
'Omega' Seamaster........................................... 385.00 have been present at complainant's place at 2:00 in the morning
of September 14, 1960 when the robbery took place; that he was
with a total value of P9,435.50, belonging to the Kim San Milling brought to the Philippine Constabulary Headquarters in Iligan
Company, Bebencio Palang, Agapito Tan, Restituta Boisano City by PC soldiers on September 15, 1960 and was subjected to
Panchita Maghanoy, Catalina Boisano Pua Lim Pin and Sy all kinds of torture; and that after he was severely maltreated,
Chua Tian to the damage and prejudice of the said owners in the including the 7-Up treatment and threatened with pistol, he was
said sum of P9,435.50, Philippine currency; and that on the asked to sign an affidavit. Despite his insistence that he was
occasion or by reason of the said robbery, the above-named innocent he was induced to sign a statement after he was told:
accused except William Tate alias Negro, conspiring and "if you obey us you may get free" and that "if you confess we will
confederating together and mutually helping one another, did protect you."
then and there willfully, unlawfully and feloniously have carnal
Ciriaco Yangyang also denied participation in the commission of
knowledge of one Agripina Maglangit, a woman, by means of
the crime considering that at that time he was in Barrio
violence and intimidation and against her will.
Mentering attending the counting of votes for the muse of the
Contrary to and in violation of Article 294 paragraph 2 of the barrio fiesta. He was reading the ballots cast for each candidate
Revised Penal Code as amended by Republic Act No. 18 and at the microphone. It was only in the following morning of
Article 296 of the Revised Penal Code as amended by Republic September 14, 1960 when he returned to Maigo.
Act No. 12, Section 3, with the following aggravating
The Identity of appellant Timoteo Cabural as the rapist of
circumstances, to wit: that the said offense was committed
Agripina Maglangit is established in the testimony of the latter
during night time and by a band; that it was committed with the
as follows:
use of disguise; and that it was committed with the use of a
motor vehicle. Q After that man had told you that you would be separated from
the rest, what happened next, if any?
Upon arraignment, the defendants pleaded not guilty. However,
during the course of the trial, three (3) of the accused, namely: A I was brought outside.
William Tate Fausto Dacera and Alfonso Caloy-on were dropped
on petition of the City Fiscal and trial proceeded against the four Q What do you mean by 'outside?'
(4) remaining accused, namely: Timoteo Cabural, alias Romeo A I was brought outside of the office of the Kim San .
Cabural; Benjamin Lasponia, Leonide Cabual and Ciriaco
Yangyang. As aforesaid, Cabural, Lasponia, Cabual and Q After you have been taken outside, what happened, if any?
Yangyang were convicted. Benjamin Lasponia did not appeal; A I was threatened and I was forced.
however, Cabural, Yangyang and Cabual did and claimed that
the trial court erred: Q How were you threatened?

I. A He pointed to me his pistol and let me lie down.

IN HOLDING THAT THE AFFIDAVITS OR EXTRA- Q This place where he threatened you and made you lie down
JUDICIAL CONFESSIONS OF ACCUSED BENJAMIN outside, was this place near to the place where you had slept?
LASPONIA, LEONIDE CABUAL, AND CIRIACO YANGYANG
A It is very far but it is within the compound of the Kim San
WHICH WERE NOT OBTAINED THROUGH FORCE,
VIOLENCE, INTIMIDATIONS AND THREATS AND Q After he had threatened you and made you lie down, what, if
SERIOUS MALTREATMENTS ARE ADMISSIBLE AS any, did you do?
EVIDENCE AND THEREFORE COULD BE A LEGAL BASIS
A He raised my skirt.
FOR THE CONVICTIONS OF ACCUSED.
Q At the time he was raising your skirt, what was your position?
II.
A I was lying down with face upward.
IN HOLDING THAT EVEN IF IN THE EXECUTION OF SAID
AFFIDAVITS OF CONFESSIONS BY THE THREE ACCUSED Q After he had raised your skirt, what happened next, if any?
SOME PERSONAL INCONVENIENCE WERE MADE BY THE
PC SOLDIERS BUT BECAUSE THE CONTENTS OF SAID A When my skirt was raised and since I have no more strength
CONFESSIONS ARE TRUE SAID EXTRA-JUDICIAL because (as demonstrated by the witness), her laps were numb,
he took off my pantie.
Q How did your laps happen to be numb? Otherwise stated, appellants failed to show the plausibility and
verity of their alibis and the crime is aggravated by dwelling and
A Because my laps were pushed so that I cannot move.
nighttime.
Q What particular part of your body did he push to numbness?
As aforesaid, the trial court convicted Timoteo Cabural of the
A My laps. crime of robbery with rape, which is penalized by Article 294(2)
of the Revised Penal Code, by reclusion temporal medium to
Q After he had taken off your pantie, what, if any, did he do? reclusion perpetua. Effective August 15, 1975 (or subsequent to
A I feel that he had what he wants. this date), Presidential Decree No. 767 imposes the penalty of
reclusion perpetua to death "when the robbery accompanied
Q What do you mean by that? with rape is committed with the use of a deadly weapon or by
A To disgrace my honor. two or more persons.

Q How did he disgrace your honor? In People vs. Perello, Jr., 111 SCRA 147, it was mentioned that
"[t]he Chief Justice and the herein ponente (Justice Ramon C.
A He had sexual intercourse. Aquino) are of the opinion that article 335 cannot be applied to
robbery with rape and that that offense should be penalized
Q How long did he have that sexual intercourse with you?
under article 294(2) in which case reclusion perpetua should be
A I do not remember how long because of my fear. imposed. As the accused was charged with a crime against
property, he should not be convicted of a crime against chastity,
Q Did he finish having sexual intercourse with you?
a private offense. (See People vs. Olden, L-27570-71, September
A Yes, sir. 20, 1972, 47 SCRA 45)." However, also in the same case,
"Justices Teehankee, Barredo and Makasiar believe that article
Q After he had that sexual intercourse with you, what happened 335 should be applied to this case. (See People vs. Carandang,
next, if any? L-310102, August 15, 1973, 52 SCRA 259, People vs. Mabag, L-
A (As demonstrated by th witness, her left Arm was pulled to 38548, July 24, 1980, 98 SCRA 730; People vs. Arias, L-40531,
stand up) January 27, 1981, 102 SCRA 303; People vs. Boado, L- 44725,
March 31, 1981, 103 SCRA 607; People vs. Canizares L- 32515,
Q Were you able to stand up? September 10, 1981; People vs. Pizarras L-35915, October 30,
A Yes, sir. 1981).

Q After you have stood up, that man where, if any, did he go? The writer of this decision is of the opinion that in robbery with
rape, the accused should be penalized under Article 294(2) of the
A I did not notice where the man go but I went back to our room. Revised Penal Code because it is a crime against property and
not a crime against chastity a private offense.
Q Upon your arrival to your quarters, what, if any, did you do?
WHEREFORE, the decision appealed from is hereby
A I told my companions.
AFFIRMED in toto. With costs against both appellants.
Q Who were they?
SO ORDERED.
A They were Restituta Biosano, Pena Maglangit, Catalina
Biosano
Aquino, Concepcion, Jr., Abad Santos, De Castro, Escolin,
Vasquez and Gutierrez, Jr., JJ., concur.
Q That man who had sexual intercourse with you, is he here now
in the courtroom?
Makasiar, J., accused Cabural should be sentenced to death
under Art. 335, R. P.C.
A Yes, sir.
Melencio-Herrera, J., I vote for the application of Art. 335 of the
Q Will you please point him out? Revised Penal Code and. the imposition of the death penalty.
A (Witness went down from the stand and went to the accused Plana, J., is on leave
seated in the courtroom and pointed to the accused Timoteo
Separate Opinions
Cabural). (tsn. pp. 32-35, May 29, 1961 hearing)
FERNANDO, C.J., concurring:
We agree with the lower court that Cabural alone was
responsible for the rape on Agripina. There is no evidence that My concurrence in the opinion of the Court penned by Justice
his co-appellant Yangyang and the other malefactors made Relova is full, entire, and complete. Nonetheless, I wish to
advances on her. Besides, the extra-judicial confessions of express my gratification that this Court by a decisive
Lasponia (Exhibits B, B-1, B-2 and B3 Leonide Cabual (Exhibits vote 1 sustains the basic postulate in both civil law and common
C, C-1 to C-5 and Ciriaco Yangyang (Exhibits H, H-1 and H-2) law jurisdictions, expressed in the maximum Nullum crimen
point to appellant Cabural as the mastermind and the role each nulla poena sine lege. It is undoubted, therefore, that unless
of them would play (as in fact they did) in the commission of the there be a radical change in the thinking of the Court, it is
crime. Their interlocking confessions indicate how they would go Article 294(2) not Article 335 of the Revised Penal Code that
to the scene of the crime, the manner by which they would enter calls for application in the crime of robbery with rape. 2 As noted
into the premises of Kim San Milling Company and, as aptly in the opinion of the Court penned by Justice Aquino in People
observed by the trial court, the details which only the v. Perello: 3 "Effective August 15, 1975 (or subsequent to this
participants could amply give. case) Presidential Decree No. 767 imposes the penalty
of reclusion perpetua to death 'when the robbery accompanied
Further, accused Cabual and Lasponia were sworn by Fiscal
with rape is committed with the use of a deadly weapon or by
Leonardo Magsalin who instructed the PC investigators to leave
two or more persons.' That increased penalty cannot be
the room so that they (Cabual and Lasponia) would be able to
retroactively applied to this case. 4 As such offense of robbery
speak their minds freely. Fiscal Magsalin testified that said
was committed before that date, it is Article 294(2), before its
accused readily and without hesitation signed their respective
amendment, that supplies the governing rule. The applicable
extra-judicial confessions.
law then is clear and explicit. It defined the offense and
Finally, We find no merit in the alibis interposed by appellants prescribed the penalty. The doctrine announced in Lizarraga
Cabural and Yangyang. As pointed out by the Solicitor General Hermanos v. Yap Tico 5 by Justice Moreland, in categorical
in his brief: language comes to mind. Thus: "The first and fundamental duty
of courts, in our judgment, is to apply the law. Construction and
The fact that Cabural played mahjong with Virginia Cruz
interpretation come only after it has been demonstrated that
Maruhom and a certain Gomer at the store of Ason in Barrio
application is impossible or inadequate without them." 6 There
Maigo from 2:00 P.M. of September 13, 1960 to 3:00 A.M. of
is relevance too to this excerpt from Kapisanan ng mga
September 14, 1960 is no guarantee that he could not be at the
Manggagawa sa Manila Railroad Company Credit Union Inc. v.
scene of the crime (Kim San Milling Company, situated in Palao
Manila Railroad Company: 7 "The applicable provision of
a 37-kilometer stretch which could be negotiated in one hour by
Republic Act. No. 2023 quoted earlier, speaks for itself. There is
car (tsn., p. 8, Sept. 20, 1966). Considering the confessions of
no ambiguity. As thus worded, it was so applied. Petitioner-
Lasponia, Cabual and Yangyang all pointing to Cabural as the
appellant cannot therefore raise any valid objection. For the
one in control of the vehicle utilized in the commission of the
lower court to view it otherwise would have been to alter the law.
crime, the conclusion is not hard to reach that his presence at
That cannot be done by the judiciary. That is a function that
the scene of the crime is much likelier than at Maigo.
properly appertains to the legislative branch. 8
Nothing more appropriately appertains to the legislative branch according to law is at war with the concept of justice viewed from
than the definition of a crime and the prescription of the penalty the layman's standpoint. The system of criminal law followed in
to be imposed. That is not a doctrine of recent vintage. It is the Philippines, true to the ways of constitutionalism, has
traceable to United States v. Wiltberger, 9 an 1820 America. always leaned toward the milder form of responsibility, whether
Supreme Court opinion. No less than the eminent Chief Justice as to the nature of the offense or the penalty to be incurred by
Marshall spoke for the Court. To quote his exact language: "The the wrongdoer. 21Where, as in this case, the law speaks in clear
rule that penal laws are to be construed strictly is perhaps not and categorical language, such a principle is impressed with
much less old than construction itself. It is founded on the greater weight.
tenderness of the law for the rights of individuals; and on the
TEEHANKEE, J, concurring:
plain principle that the power of punishment is vested in the
legislative, not in the judicial department. It is the legislature, I concur with the judgment at bar which affirms the trial court's
not the court, which is to define a crime, and ordain its decision convicting the accused-appellant Timoteo Cabural
punishment." 10 That ruling was followed in the Philippines in a alone of the crime of robbery with rape and imposing upon him
1906 decision, United States v. Almond. 11 the proper penalty of reclusion perpetua under Article 294, par.
2 of the the Revised Penal Code. The record and testimony of the
So it has been in the Philippines since then. It was the same
victim of the rape show quite clearly that Cabural alone was
Justice Moreland who in United States v. Abad
responsible for and committed the rape on the victim, so that his
Santos 12 promulgated in 1917, gave expression to a variation of
companions were likewise properly sentenced for the crime of
such a fundamental postulate in this wise: "Criminal statutes
robbery alone. There is, therefore, no room for the application of
are to be strictly construed. No person should be brought within
my separate opinions in the cited cases of Perello, Carandang,
their terms who is not clearly within them, nor should any act
Mabag etc., that where robbery with rape is committed but the
be pronounced criminal which is not clearly made so by the
rape is qualified by the use of a deadly weapon or is committed
statute." 13 The same year, Justice Carson in United States v.
by two persons, either of these two actors is singled out by the
Estapia 14 in rejecting the contention that the application of a
amendatory Act, R.A. 4111, as supplying the controlling
penal provision even if not covered by its terms should be viewed
qualification and mandates he imposition of the death penalty
by the judiciary as commendable, conducive as it is to the
for the crime of qualified rape under Art. 335 of the Penal Code
repression of a reprehensible practice" pointed out: "To this it
(and not the lesser penalty of perpetua under Art. 294 for the
should be sufficient answer to say that neither the executive nor
complex crime of robbery with rape).
the judicial authorities are authorized to impose fines and prison
sentences in cases wherein such fines and prison sentences are Separate Opinions
not clearly authorized by law, and this without regard to the end
sought to be attained by the enforcement of such unauthorized FERNANDO, C.J., concurring:
penalties."15 My concurrence in the opinion of the Court penned by Justice
It is to be admitted that from the standpoint of logic alone, there Relova is full, entire, and complete. Nonetheless, I wish to
is much to be said for the view that since rape under certain express my gratification that this Court by a decisive
circumstances is penalized with death, it is an affront to reason vote 1 sustains the basic postulate in both civil law and common
if robbery with rape carries with it a lesser penalty. The latter law jurisdictions, expressed in the maximum Nullum crimen
offense is far more reprehensible, ergo it must be punished at nulla poena sine lege. It is undoubted, therefore, that unless
least with equal if not more severity. It is from that perspective there be a radical change in the thinking of the Court, it is
that in People v. Carandang 16 while the penalty imposed is that Article 294(2) not Article 335 of the Revised Penal Code that
of reclusion perpetua there were two separate opinions one from calls for application in the crime of robbery with rape. 2 As noted
Justice Teehankee and the other from the late Chief Justice, in the opinion of the Court penned by Justice Aquino in People
then Justice, Castro. They would apply Article 335 of the v. Perello: 3 "Effective August 15, 1975 (or subsequent to this
Revised Penal Code. Retired Chief Justice Makalintal, now case) Presidential Decree No. 767 imposes the penalty
Speaker of the Batasan Pambansa, then Acting Chief Justice, of reclusion perpetua to death 'when the robbery accompanied
concurred in the separate opinion of the late Chief Justice with rape is committed with the use of a deadly weapon or by
Castro. Less than a year before, however, in September of 1972, two or more persons.' That increased penalty cannot be
Carandang being a 1973 decision, he penned the unanimous retroactively applied to this case. 4 As such offense of robbery
opinion in People v. Olden 17 affirming the joint judgment of a was committed before that date, it is Article 294(2), before its
Court of First Instance of Davao in two cases, one of which was amendment, that supplies the governing rule. The applicable
robbery in band with multiple rape. It was not the death law then is clear and explicit. It defined the offense and
sentence that was imposed but reclusion perpetua. 18 That case prescribed the penalty. The doctrine announced in Lizarraga
is certainly later than People v. Obtinalia 19 decided in April of Hermanos v. Yap Tico 5 by Justice Moreland, in categorical
1971, where, in a per curiam opinion, Article 335 of the Revised language comes to mind. Thus: "The first and fundamental duty
Penal Code was applied, although the offense for which the of courts, in our judgment, is to apply the law. Construction and
accused were found guilty was robbery with rape. It is, therefore, interpretation come only after it has been demonstrated that
re-assuring that with the decision of this case, the uncertainty application is impossible or inadequate without them." 6 There
which has beclouded the issue of the appropriate imposable is relevance too to this excerpt from Kapisanan ng mga
penalty has been removed. Manggagawa sa Manila Railroad Company Credit Union Inc. v.
Manila Railroad Company: 7 "The applicable provision of
One last word. The maximum Nullum crimen nulla poena sine Republic Act. No. 2023 quoted earlier, speaks for
lege has its roots in history. It is in accordance with both itself.1äwphï1.ñët There is no ambiguity. As thus worded, it was
centuries of civil law and common law tradition. Moreover, it is so applied. Petitioner-appellant cannot therefore raise any valid
an indispensable coronary to a regime of liberty enshrined in our objection. For the lower court to view it otherwise would have
Constitution. It is of the essence then that while anti-social acts been to alter the law. That cannot be done by the judiciary. That
should be penalized, there must be a clear definition of the is a function that properly appertains to the legislative branch. 8
punishable offense as well as the penalty that may be imposed a
penalty, to repeat, that can be fixed by the legislative body, and Nothing more appropriately appertains to the legislative branch
the legislative body alone. So constitutionalism mandates, with than the definition of a crime and the prescription of the penalty
its stress on jurisdiction rather than guvernaculum.The to be imposed. That is not a doctrine of recent vintage. It is
judiciary as the dispenser of justice through law must be aware traceable to United States v. Wiltberger, 9 an 1820 America.
of the limitation on its own power. Supreme Court opinion. No less than the eminent Chief Justice
Marshall spoke for the Court. To quote his exact language: "The
Such a concept calls for undiminished respect from the judiciary. rule that penal laws are to be construed strictly is perhaps not
For it is the department by which the other branches are held to much less old than construction itself. It is founded on the
strict accountability. It sees to it, in propriate cases of course, tenderness of the law for the rights of individuals; and on the
that they are held within the bounds of their authority. plain principle that the power of punishment is vested in the
Certainly, the judiciary is not devoid of discretion., It can, to legislative, not in the judicial department. It is the legislature,
paraphrase Cardozo, fill in the gap and clear the ambiguities. To not the court, which is to define a crime, and ordain its
that extent. it is free but, to recall Cardozo anew, it "is still not punishment." 10 That ruling was followed in the Philippines in a
wholly free. [A judge] is no to innovate at pleasure. He is not a 1906 decision, United States v. Almond. 11
knight-errant, roaming at will in pursuit of his own Ideal of
beauty or of goodness. He is to draw his inspiration from So it has been in the Philippines since then. It was the same
consecrated principles." 20 Justice Moreland who in United States v. Abad
Santos 12 promulgated in 1917, gave expression to a variation of
Tersely stated, the judiciary administers justice according to such a fundamental postulate in this wise: "Criminal statutes
law. This is by no means to imply that in the case at hand, justice are to be strictly construed. No person should be brought within
their terms who is not clearly within them, nor should any act Mabag etc., that where robbery with rape is committed but the
be pronounced criminal which is not clearly made so by the rape is qualified by the use of a deadly weapon or is committed
statute." 13 The same year, Justice Carson in United States v. by two persons, either of these two actors is singled out by the
Estapia 14 in rejecting the contention that the application of a amendatory Act, R.A. 4111, as supplying the controlling
penal provision even if not covered by its terms should be viewed qualification and mandates he imposition of the death penalty
by the judiciary as commendable, conducive as it is to the for the crime of qualified rape under Art. 335 of the Penal Code
repression of a reprehensible practice" pointed out: "To this it (and not the lesser penalty of perpetua under Art. 294 for the
should be sufficient answer to say that neither the executive nor complex crime of robbery with rape).
the judicial authorities are authorized to impose fines and prison
sentences in cases wherein such fines and prison sentences are
not clearly authorized by law, and this without regard to the end
sought to be attained by the enforcement of such unauthorized
penalties."15
It is to be admitted that from the standpoint of logic alone, there
is much to be said for the view that since rape under certain
circumstances is penalized with death, it is an affront to reason
if robbery with rape carries with it a lesser penalty. The latter
offense is far more reprehensible, ergo it must be punished at
least with equal if not more severity. It is from that perspective
that in People v. Carandang 16 while the penalty imposed is that
of reclusion perpetua there were two separate opinions one from
Justice Teehankee and the other from the late Chief Justice,
then Justice, Castro. They would apply Article 335 of the
Revised Penal Code. Retired Chief Justice Makalintal, now
Speaker of the Batasan Pambansa, then Acting Chief Justice,
concurred in the separate opinion of the late Chief Justice
Castro. Less than a year before, however, in September of 1972,
Carandang being a 1973 decision, he penned the unanimous
opinion in People v. Olden 17 affirming the joint judgment of a
Court of First Instance of Davao in two cases, one of which was
robbery in band with multiple rape. It was not the death
sentence that was imposed but reclusion perpetua. 18 That case
is certainly later than People v. Obtinalia 19 decided in April of
1971, where, in a per curiam opinion, Article 335 of the Revised
Penal Code was applied, although the offense for which the
accused were found guilty was robbery with rape. It is, therefore,
re-assuring that with the decision of this case, the uncertainty
which has beclouded the issue of the appropriate imposable
penalty has been removed.
One last word. The maximum Nullum crimen nulla poena sine
lege has its roots in history. It is in accordance with both
centuries of civil law and common law tradition. Moreover, it is
an indispensable coronary to a regime of liberty enshrined in our
Constitution. It is of the essence then that while anti-social acts
should be penalized, there must be a clear definition of the
punishable offense as well as the penalty that may be imposed a
penalty, to repeat, that can be fixed by the legislative body, and
the legislative body alone. So constitutionalism mandates, with
its stress on jurisdiction rather than guvernaculum.The
judiciary as the dispenser of justice through law must be aware
of the limitation on its own power.
Such a concept calls for undiminished respect from the judiciary.
For it is the department by which the other branches are held to
strict accountability. It sees to it, in propriate cases of course,
that they are held within the bounds of their authority.
Certainly, the judiciary is not devoid of discretion., It can, to
paraphrase Cardozo, fill in the gap and clear the ambiguities. To
that extent. it is free but, to recall Cardozo anew, it "is still not
wholly free. [A judge] is no to innovate at pleasure. He is not a
knight-errant, roaming at will in pursuit of his own Ideal of
beauty or of goodness. He is to draw his inspiration from
consecrated principles." 20
Tersely stated, the judiciary administers justice according to
law. This is by no means to imply that in the case at hand, justice
according to law is at war with the concept of justice viewed from
the layman's standpoint. The system of criminal law followed in
the Philippines, true to the ways of constitutionalism, has
always leaned toward the milder form of responsibility, whether
as to the nature of the offense or the penalty to be incurred by
the wrongdoer. 21Where, as in this case, the law speaks in clear
and categorical language, such a principle is impressed with
greater weight.
TEEHANKEE, J, concurring:
I concur with the judgment at bar which affirms the trial court's
decision convicting the accused-appellant Timoteo Cabural
alone of the crime of robbery with rape and imposing upon him
the proper penalty of reclusion perpetua under Article 294, par.
2 of the the Revised Penal Code. The record and testimony of the
victim of the rape show quite clearly that Cabural alone was
responsible for and committed the rape on the victim, so that his
companions were likewise properly sentenced for the crime of EN BANC
robbery alone. There is, therefore, no room for the application of
my separate opinions in the cited cases of Perello, Carandang, [G.R. No. 9726. December 8, 1914. ]
THE UNITED STATES, Plaintiff-Appellee, v. CARSON parties to show cause why they should not be cited to answer
TAYLOR, Defendant-Appellant. charges of conspiracy to defraud.

C. W O’Brien, for Appellant. "‘On April 4, 1913, the house located at 2157 Calle O’Donnell
was destroyed by fire. The house was insured for P5,000, the
Solicitor-General Corpus, for Appellee. contents for an additional P5,000, with the West of Scotland
Insurance Association, of which Lutz & Co. are the local agents,
SYLLABUS with an additional P1,500 with Smith, Bell & Co.
1. LIBEL AND SLANDER; PUBLICATION; EDITOR,
"‘The full amount of the insurance on the property was paid by
AUTHOR, PROPRIETOR, MANAGER. — Section 6 of the Libel
the agents of the insurance companies and the matter
Law (Act No. 277) provides a punishment only for the "author,
apparently dropped from the records.
editor, or proprietor," for the publication of a libel in a
newspaper. In the present case no person was represented to be
"‘Then there was internal trouble and information began to leak
either the "author, the editor, or the proprietor" of the
out which resulted in sensational statements to the effect that
newspaper in which the alleged libel was published. The proof
the destruction of the property had been an act of incendiarism
shows that the defendant was the "manager." There was not a
in order to collect the insurance. Then there was an
word of proof showing that as "manager" he was the author of
investigation started and it resulted in sworn statements of the
the article published or the editor or the proprietor of the
three persons above mentioned.
newspaper. The "manager" of a newspaper may be the author of
the articles published or the editor or the publisher of the
"‘Notarial returns were made yesterday by the sheriff, based on
newspaper. His exact relation to the newspaper or publication is
the sworn statements and the parties are cited to appear in court
a matter of proof. He can not avoid responsibility as the "author,
and show cause.
editor, or proprietor" by using some other term or word, when,
as a matter of fact, he is the "author, editor, or proprietor." The
"‘The investigation also showed that the furniture, which was
"author, editor, or proprietor" of a newspaper or publication can
supposed to be in the house at the time of the conflagration and
not avoid responsibility by simply calling himself the "manager"
which was paid for by the insurance agents, sworn statements
or "printer." He can not wear the toga of "author, editor, or
having been made that it was destroyed in the fire, was in a
proprietor" and hide his responsibility by giving himself some
certain house in Montalban, where it was identified upon the
other name. While the terms "author, editor, and proprietor" of
sworn statements of the above mentioned. Implicated in the
a newspaper are terms well defined, the particular words
charges of conspiracy and fraud is the name of the attorney for
"author, editor, or proprietor" are not material or important,
the plaintiff who made affidavit as to the burning of the house
further than they are words which are intended to show the
and against whom criminal proceedings will be brought as well
relation of the responsible party to the publication. That relation
as against the original owners.
may as well exist under some other name or denomination.
"‘Attorney Burke, who represents Lutz & Co. in the proceedings,
DECISION was seen last night and asked for a statement as to the case. Mr.
Burke refused to talk on the case and stated that when it came
JOHNSON, J. : to trial it would be time enough to obtain the facts.
This was an action for criminal libel.
"‘The present action came before the court on a motion of
The complaint alleged: Attorney Burke to set aside the judgment, which, in the original
case, gave the owners of the property judgment for the amount
"That on the 25th day of September, 1913, the said Carson of the insurance.
Taylor, being then and there the acting editor and proprietor,
manager, printer, and publisher in the city of Manila, Philippine "‘Attorney Burke filed the sworn statements with the court and
Islands, of a certain daily bilingual newspaper, edited in the the notarial returns to the same were made yesterday afternoon,
English and Spanish languages, and known as the ’Manila Daily the sworn statements as to the burning of the house being in the
Bulletin,’ a paper of large circulation throughout the Philippine hands of the sheriff.
Islands, as well as in the United States and other countries in
all of which both languages are spoken and written, having as "‘It was stated yesterday that a criminal action would follow the
such the supervision and control of said newspaper, did then and civil proceedings instituted to recover the funds in the case
there willfully, feloniously, maliciously, and with intent to entitled on the court records, Maria Mortera de Eceiza and
impeach the honesty, virtue, and reputation of one Ramon Manuel Eceiza versus the west of Scotland Association, Limited,
Sotelo as member of the bar of the Philippine Islands and as a No. 10191 on the court records.
private individual, and to expose him to public hatred, contempt
and ridicule, compose, print, edit, publish, and circulate and "‘It might be stated also that Eugenio Martin was one of the
procure to be composed, printed, edited, published, and plaintiffs in the recent suit brought against Ex Governor W.
circulated in said newspaper’s issue of the above mentioned Cameron Forbes for lumber supplied for his Boston home.’
date, September 25, 1913, a certain false and malicious
defamation and libel in the English language of and concerning "That in this article is contained the following paragraph. to
the said Ramon Sotelo, which reads as follows. wit:jgc:chanrobles.com.ph

"‘OWNERS FIRED BUILDING TO COLLECT INSURANCE. — "‘ . . .Implicated in the charges of conspiracy and fraud is the
CRIMINAL CHARGES FOLLOW CIVIL SUIT. name of the attorney for the plaintiff who made affidavit as to
the burning of the house and against whom criminal proceedings
"‘Conspiracy divulged in three sworn statements made by will be brought as well as against the original owners,’ by which
members of the party after a family disagreement. Sensational the said accused meant to refer and did refer to the said Ramon
statement sworn to. Mystery of Calle O’Donnell fire solved and Sotelo, who then and there was the attorney for the plaintiff in
papers served. the case aforesaid, No. 10191 of the Court of First Instance of
the city of Manila, and so was understood by the public who read
"‘Conspiracy to defraud the insurance company. the same; that the statements and allegations made in said
paragraph are wholly false and untrue, thus impeaching the
"‘The building was fired to collect the amount of insurance. honesty, virtue and reputation of the said offended party as a
member of the bar of the Philippine Islands and as a private
"‘The movable furniture of value was removed before the fire. individual, and exposing him to public hatred, contempt and
ridicule. Contrary to law."cralaw virtua1aw library
"‘The full amount of the insurance was collected, and the
conspiracy was a success. Upon said complaint the defendant was arrested, arraigned,
plead not guilty, was tried, found guilty of the crime charged,
"‘The above is the gist of the sworn statements of Vicente Sotelo and sentenced by the Honorable George N. Hurd, judge, to pay
and Eugenio Martin in connection with the fire that destroyed a fine of P200. From that sentence the defendant appealed to
house No. 2157 Calle O’Donnell on April 4. this court and made the following assignment of
error:jgc:chanrobles.com.ph
"‘The case in question is a sensational one to say .he least, and
the court is being petitioned to set aside the ruling and cite the "First. The court erred in finding that the defendant was
responsible for and guilty of the alleged libel. the defendant concerning his particular relation to the
publication of the newspaper in question. We do not desire to be
"Second. The court erred in finding that the defendant was the understood in our conclusions here as holding that the
proprietor and publisher of the ’Manila Daily Bulletin.’ "manager" or the "printer" may not, under certain conditions
and proper proof, be held to be the "author, editor, or proprietor"
"Third. The court erred in finding that the alleged libelous of a newspaper. He may denominate himself as "manager" or
article was libelous per se. "printer" simply, and be at the same time the "author, editor, or
proprietor" of the newspaper. He can not avoid responsibility by
"Fourth. The court erred in holding that the article was libelous, using some other term or word, indicating his relation to the
while finding that there was no malice. newspaper or the publication, when, as a matter of fact, he is the
"author, the editor, or the proprietor" of the same. His real
"Fifth. The court erred in finding that the alleged libelous article relation to the said publication is a matter of proof. The Solicitor-
referred to attorney Ramon Sotelo. General, in his brief, says that the defendant used the word
"manager" with the hope of evading legal responsibility, as the
"Sixth. The court erred in finding that Ramon Sotelo was Libel Law places the responsibility for publishing a libel, on
attorney for the plaintiffs in case No. 10191, when the alleged "every author, editor, or proprietor of any book, etc." Had the
libel was published."cralaw virtua1aw library prosecuting attorney in the trial of the cause believed that the
defendant, even though he called himself the "manager" was, in
After a careful examination of the record and the arguments fact, the "author, editor, or proprietor" of said publication, he
presented by the appellant, we deem it necessary to discuss only should have presented some proof supporting that contention.
the first and second assignments of error. Neither do we desire to be understood as holding that simply
because a person connected with the publication of a newspaper
In the Philippine Islands there exist no crimes such as are who calls himself the "manager" or "printer" may not, in fact and
known in the United States and England as common law crimes. at the same time, be the "author, editor, or proprietor." The
No act constitutes a crime here unless it is made so by law. Libel "author, editor, or proprietor" can not avoid responsibility for the
is made a crime here by Act No. 277 of the United States writing and publication of a libelous article, by simply calling
Philippine Commission. Said Act (No. 277) not only defines the himself the "manager" or the "printer" of a newspaper. That,
crime of libel and prescribes the particular conditions necessary however, is a question of proof. The burden is upon the
to constitute it, but it also names the persons who may be guilty prosecution to show that the defendant is, by whatever name he
of such crime. In the present case the complaint alleges that the may call himself, in truth and in fact, the "author, editor, or
defendant was, at the time of the publication of said alleged proprietor" of a newspaper. The courts cannot assume, in the
article "the acting editor, proprietor, manager, printer, absence of proof, that one who called himself "manager" was in
publisher, etc. etc. of a certain bilingual newspaper, etc., known fact the "author, editor, or proprietor." We might assume,
as the ’Manila Daily Bulletin,’ a paper of large circulation perhaps, that the ’’manager" of a newspaper plays an important
throughout the Philippine Islands, as well as in the United part in the publication of the same by virtue of the general
States and other countries."cralaw virtua1aw library signification of the word "manager." Men can not, however, be
sentenced upon the basis of a mere assumption. There must be
It will be noted that the complaint charges the defendant as "the some proof. The word "manage" has been defined by Webster to
acting editor, proprietor, manager, printer, and publisher." mean "to have under control and direction; to conduct; to guide;
From an examination of said Act No. 277, we find that section 6 to administer; to treat; to handle." Webster defines "manager" to
provides that: "Every author, editor, or proprietor of any book, be "one who manages; a conductor or director; as, the manager
newspaper, or serial publication is chargeable with the of a theater." A manager, as that word is generally understood,
publication of any words contained in any part of said book or we do not believe includes the idea of ownership. Generally
number of each newspaper or serial as fully as if he were the speaking it means one who is representing another as an agent.
author of the same."cralaw virtua1aw library That being true, his powers and duties and obligations are
generally defined by contract. He may have expressed as well as
By an examination of said article, with reference to the persons implied powers, but whatever his powers and duties are they
who may be liable for the publication of a libel in a newspaper, must be dependent upon the nature of the business and the
we find that it only provides for the punishment of "the author, terms of his contract. There is no fixed rule which indicates
editor, or proprietor." It would follow, therefore, that unless the particularly and definitely his duties, powers and obligations.
proof shows that the defendant in the present case is the An examination into the character of the business and the
"author, editor, or proprietor" of the newspaper in which the libel contract of his employment must be made for the purpose of
was published, he can not be held liable. ascertaining definitely what his duties and obligations are. His
exact relation is always a matter of proof. It is incumbent upon
In the present case the Solicitor-General in his brief said that — the prosecution in a case like the present, to show that whatever
"No person is represented to be either the ’author, editor, or title, name or designation the defendant may bear, he was, in
proprietor.’" That statement of the Solicitor-General is fully fact, the "author, the editor, or the proprietor" of the newspaper.
sustained by the record. There is not a word of proof in the record If he was in fact the "author, editor, or proprietor," he can not
showing that the defendant was either the "author, the editor, escape responsibility by calling himself the "manager" or
or the proprietor." The proof shows that the defendant was the "printer." It is the relation which he bears to the publication and
"manager." He must, therefore, be acquitted of the crime not the name or title which he has assumed, which is important
charged against him, unless it is shown by the proof that he, as in an investigation. He can not wear the toga of author or editor
"manager" of the newspaper, was in some way directly and hide his responsibility by giving himself some other name.
responsible for the writing, editing, or publishing of the matter While the terms "author, editor, and proprietor" of a newspaper
contained in said alleged libelous article. The prosecution are terms well defined, the particular words "author, editor, or
presented the newspaper, the "Manila Daily Bulletin," for the proprietor" are not material or important, further than that they
purpose of showing the relation which the defendant had to it. are words which are intended to show the relation of the
That was the only proof presented by the prosecution to show responsible party to the publication. That relation may as well
the relation which the defendant had to the publication of the exist under some other name or denomination.
libel in question. From an examination of the editorial page of
said exhibit, we find that it shows that the "Manila Daily For the foregoing reasons. therefore, there being no proof
Bulletin" is owned by the "Bulletin Publishing Company," and whatever in the record showing that the defendant was the
that the defendant was its manager. There is not a word of proof "author, the editor, or the proprietor" of the newspaper in
in the record which shows what relation the manager had to the question, the sentence of the lower court must be reversed, the
publication of said newspaper. We might, by a series of complaint dismissed and the defendant discharged from the
presumptions and assumptions, conclude that the manager of a custody of the law, with costs de officio. So ordered.
newspaper has some direct responsibility with its publication.
We believe, however, that such presumptions and assumptions, Arellano, C.J., Moreland, Trent and Araullo, JJ., concur.
in the absence of a single letter of proof relating thereto, would
be unwarranted and unjustified. The prosecuting attorney had
an opportunity to present proof upon that question. Either
because he had no proof or because no such proof was obtainable,
he presented none. It certainly is not a difficult matter to
ascertain who is the real person responsible for the publication
of a newspaper which is published daily and has a wide
circulation in a particular community. No question was asked
EN BANC After trial, the RTC found petitioner guilty beyond reasonable
doubt of the crime charged in the Information. The dispositive
G.R. No. 180016 April 29, 2014
portion of the decision states:
LITO CORPUZ, Petitioner,
WHEREFORE, finding accused LITO CORPUZ GUILTY
vs.
beyond reasonable doubt of the felony of Estafa under Article
PEOPLE OF THE PHILIPPINES, Respondent.
315, paragraph one (1), subparagraph (b) of the Revised Penal
DECISION Code;

PERALTA, J.: there being no offsetting generic aggravating nor ordinary


mitigating circumstance/s to vary the penalty imposable;
This is to resolve the Petition for Review on Certiorari, under
Rule 45 of the Rules of Court, dated November 5, 2007, of accordingly, the accused is hereby sentenced to suffer the
petitioner Lito Corpuz (petitioner), seeking to reverse and set penalty of deprivation of liberty consisting of an imprisonment
aside the Decision1 dated March 22, 2007 and Resolution2 dated under the Indeterminate Sentence Law of FOUR (4) YEARS
September 5, 2007 of the Court of Appeals (CA), which affirmed AND TWO (2) MONTHS of Prision Correccional in its medium
with modification the Decision3 dated July 30, 2004 of the period AS MINIMUM, to FOURTEEN (14) YEARS AND EIGHT
Regional Trial Court (RTC), Branch 46, San Fernando City, (8) MONTHS of Reclusion Temporal in its minimum period AS
finding the petitioner guilty beyond reasonable doubt of the MAXIMUM; to indemnify private complainant Danilo Tangcoy
crime of Estafa under Article 315, paragraph (1), sub-paragraph the amount of ₱98,000.00 as actual damages, and to pay the
(b) of the Revised Penal Code. costs of suit.

The antecedent facts follow. SO ORDERED.

Private complainant Danilo Tangcoy and petitioner met at the The case was elevated to the CA, however, the latter denied the
Admiral Royale Casino in Olongapo City sometime in 1990. appeal of petitioner and affirmed the decision of the RTC, thus:
Private complainant was then engaged in the business of
WHEREFORE, the instant appeal is DENIED. The assailed
lending money to casino players and, upon hearing that the
Judgment dated July 30, 2004 of the RTC of San Fernando City
former had some pieces of jewelry for sale, petitioner approached
(P), Branch 46, is hereby AFFIRMED with MODIFICATION on
him on May 2, 1991 at the same casino and offered to sell the
the imposable prison term, such that accused-appellant shall
said pieces of jewelry on commission basis. Private complainant
suffer the indeterminate penalty of 4 years and 2 months of
agreed, and as a consequence, he turned over to petitioner the
prision correccional, as minimum, to 8 years of prision mayor, as
following items: an 18k diamond ring for men; a woman's
maximum, plus 1 year for each additional ₱10,000.00, or a total
bracelet; one (1) men's necklace and another men's bracelet,
of 7 years. The rest of the decision stands.
with an aggregate value of ₱98,000.00, as evidenced by a receipt
of even date. They both agreed that petitioner shall remit the SO ORDERED.
proceeds of the sale, and/or, if unsold, to return the same items,
Petitioner, after the CA denied his motion for reconsideration,
within a period of 60 days. The period expired without petitioner
filed with this Court the present petition stating the following
remitting the proceeds of the sale or returning the pieces of
grounds:
jewelry. When private complainant was able to meet petitioner,
the latter promised the former that he will pay the value of the A. THE HONORABLE COURT OF APPEALS ERRED IN
said items entrusted to him, but to no avail. CONFIRMING THE ADMISSION AND APPRECIATION BY
THE LOWER COURT OF PROSECUTION EVIDENCE,
Thus, an Information was filed against petitioner for the crime
INCLUDING ITS EXHIBITS, WHICH ARE MERE MACHINE
of estafa, which reads as follows:
COPIES, AS THIS VIOLATES THE BEST EVIDENCE RULE;
That on or about the fifth (5th) day of July 1991, in the City of
B. THE HONORABLE COURT OF APPEALS ERRED IN
Olongapo, Philippines, and within the jurisdiction of this
AFFIRMING THE LOWER COURT'S FINDING THAT THE
Honorable Court, the above-named accused, after having
CRIMINAL INFORMATION FOR ESTAFA WAS NOT
received from one Danilo Tangcoy, one (1) men's diamond ring,
FATALLY DEFECTIVE ALTHOUGH THE SAME DID NOT
18k, worth ₱45,000.00; one (1) three-baht men's bracelet, 22k,
CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF
worth ₱25,000.00; one (1) two-baht ladies' bracelet, 22k, worth
THE REVISED PENAL CODE IN THAT -
₱12,000.00, or in the total amount of Ninety-Eight Thousand
Pesos (₱98,000.00), Philippine currency, under expressed 1. THE INFORMATION DID NOT FIX A PERIOD WITHIN
obligation on the part of said accused to remit the proceeds of WHICH THE SUBJECT [PIECES OF] JEWELRY SHOULD BE
the sale of the said items or to return the same, if not sold, said RETURNED, IF UNSOLD, OR THE MONEY TO BE
accused, once in possession of the said items, with intent to REMITTED, IF SOLD;
defraud, and with unfaithfulness and abuse of confidence, and
far from complying with his aforestated obligation, did then and 2. THE DATE OF THE OCCURRENCE OF THE CRIME
there wilfully, unlawfully and feloniously misappropriate, ALLEGED IN THE INFORMATION AS OF 05 JULY 1991 WAS
misapply and convert to his own personal use and benefit the MATERIALLY DIFFERENT FROM THE ONE TESTIFIED TO
aforesaid jewelries (sic) or the proceeds of the sale thereof, and BY THE PRIVATE COMPLAINANT WHICH WAS 02 MAY
despite repeated demands, the accused failed and refused to 1991;
return the said items or to remit the amount of Ninety- Eight C. THE HONORABLE COURT OF APPEALS ERRED IN
Thousand Pesos (₱98,000.00), Philippine currency, to the AFFIRMING THE LOWER COURT'S FINDING THAT
damage and prejudice of said Danilo Tangcoy in the DEMAND TO RETURN THE SUBJECT [PIECES OF]
aforementioned amount. JEWELRY, IF UNSOLD, OR REMIT THE PROCEEDS, IF
CONTRARY TO LAW. SOLD – AN ELEMENT OF THE OFFENSE – WAS PROVED;

On January 28, 1992, petitioner, with the assistance of his D. THE HONORABLE COURT OF APPEALS ERRED IN
counsel, entered a plea of not guilty. Thereafter, trial on the AFFIRMING THE LOWER COURT'S FINDING THAT THE
merits ensued. PROSECUTION'S CASE WAS PROVEN BEYOND
REASONABLE DOUBT ALTHOUGH -
The prosecution, to prove the above-stated facts, presented the
lone testimony of Danilo Tangcoy. On the other hand, the 1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2)
defense presented the lone testimony of petitioner, which can be VERSIONS OF THE INCIDENT;
summarized, as follows: 2. THE VERSION OF THE PETITIONER – ACCUSED IS
Petitioner and private complainant were collecting agents of MORE STRAIGHTFORWARD AND LOGICAL, CONSISTENT
Antonio Balajadia, who is engaged in the financing business of WITH HUMAN EXPERIENCE;
extending loans to Base employees. For every collection made, 3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND
they earn a commission. Petitioner denied having transacted APPLIED TO THIS CASE;
any business with private complainant.
4. PENAL STATUTES ARE STRICTLY CONSTRUED
However, he admitted obtaining a loan from Balajadia sometime AGAINST THE STATE.
in 1989 for which he was made to sign a blank receipt. He
claimed that the same receipt was then dated May 2, 1991 and In its Comment dated May 5, 2008, the Office of the Solicitor
used as evidence against him for the supposed agreement to sell General (OSG) stated the following counter-arguments:
the subject pieces of jewelry, which he did not even see. The exhibits were properly admitted inasmuch as petitioner
failed to object to their admissibility.
The information was not defective inasmuch as it sufficiently (b) By misappropriating or converting, to the prejudice of
established the designation of the offense and the acts another, money, goods, or any other personal property received
complained of. by the offender in trust or on commission, or for administration,
or under any other obligation involving the duty to make
The prosecution sufficiently established all the elements of the
delivery of or to return the same, even though such obligation be
crime charged.
totally or partially guaranteed by a bond; or by denying having
This Court finds the present petition devoid of any merit. received such money, goods, or other property; x x x

The factual findings of the appellate court generally are The elements of estafa with abuse of confidence are as follows:
conclusive, and carry even more weight when said court affirms (a) that money, goods or other personal property is received by
the findings of the trial court, absent any showing that the the offender in trust, or on commission, or for administration, or
findings are totally devoid of support in the records, or that they under any other obligation involving the duty to make delivery
are so glaringly erroneous as to constitute grave abuse of of, or to return the same; (b) that there be misappropriation or
discretion.4 Petitioner is of the opinion that the CA erred in conversion of such money or property by the offender or denial
affirming the factual findings of the trial court. He now comes to on his part of such receipt; (c) that such misappropriation or
this Court raising both procedural and substantive issues. conversion or denial is to the prejudice of another; and (d) that
there is a demand made by the offended party on the offender.8
According to petitioner, the CA erred in affirming the ruling of
the trial court, admitting in evidence a receipt dated May 2, 1991 Petitioner argues that the last element, which is, that there is a
marked as Exhibit "A" and its submarkings, although the same demand by the offended party on the offender, was not proved.
was merely a photocopy, thus, violating the best evidence rule. This Court disagrees. In his testimony, private complainant
However, the records show that petitioner never objected to the narrated how he was able to locate petitioner after almost two
admissibility of the said evidence at the time it was identified, (2) months from the time he gave the pieces of jewelry and asked
marked and testified upon in court by private complainant. The petitioner about the same items with the latter promising to pay
CA also correctly pointed out that petitioner also failed to raise them. Thus:
an objection in his Comment to the prosecution's formal offer of
PROS. MARTINEZ
evidence and even admitted having signed the said receipt. The
established doctrine is that when a party failed to interpose a q Now, Mr. Witness, this was executed on 2 May 1991, and this
timely objection to evidence at the time they were offered in transaction could have been finished on 5 July 1991, the
evidence, such objection shall be considered as waived.5 question is what happens (sic) when the deadline came?
Another procedural issue raised is, as claimed by petitioner, the a I went looking for him, sir.
formally defective Information filed against him. He contends
q For whom?
that the Information does not contain the period when the pieces
of jewelry were supposed to be returned and that the date when a Lito Corpuz, sir.
the crime occurred was different from the one testified to by
private complainant. This argument is untenable. The CA did q Were you able to look (sic) for him?
not err in finding that the Information was substantially a I looked for him for a week, sir.
complete and in reiterating that objections as to the matters of
form and substance in the Information cannot be made for the q Did you know his residence?
first time on appeal. It is true that the gravamen of the crime of a Yes, sir.
estafa under Article 315, paragraph 1, subparagraph (b) of the
RPC is the appropriation or conversion of money or property q Did you go there?
received to the prejudice of the owner6 and that the time of
a Yes, sir.
occurrence is not a material ingredient of the crime, hence, the
exclusion of the period and the wrong date of the occurrence of q Did you find him?
the crime, as reflected in the Information, do not make the latter
a No, sir.
fatally defective. The CA ruled:
q Were you able to talk to him since 5 July 1991?
x x x An information is legally viable as long as it distinctly
states the statutory designation of the offense and the acts or a I talked to him, sir.
omissions constitutive thereof. Then Section 6, Rule 110 of the
Rules of Court provides that a complaint or information is q How many times?
sufficient if it states the name of the accused; a Two times, sir.
the designation of the offense by the statute; the acts or q What did you talk (sic) to him?
omissions complained of as constituting the offense; the name of
the offended party; the approximate time of the commission of a About the items I gave to (sic) him, sir.
the offense, and the place wherein the offense was committed. q Referring to Exhibit A-2?
In the case at bar, a reading of the subject Information shows
compliance with the foregoing rule. That the time of the a Yes, sir, and according to him he will take his obligation and I
commission of the offense was stated as " on or about the fifth asked him where the items are and he promised me that he will
(5th) day of July, 1991" is not likewise fatal to the prosecution's pay these amount, sir.
cause considering that Section 11 of the same Rule requires a
q Up to this time that you were here, were you able to collect
statement of the precise time only when the same is a material
from him partially or full?
ingredient of the offense. The gravamen of the crime of estafa
under Article 315, paragraph 1 (b) of the Revised Penal Code a No, sir.9
(RPC) is the appropriation or conversion of money or property
No specific type of proof is required to show that there was
received to the prejudice of the offender. Thus, aside from the
demand.10 Demand need not even be formal; it may be
fact that the date of the commission thereof is not an essential
verbal.11 The specific word "demand" need not even be used to
element of the crime herein charged, the failure of the
show that it has indeed been made upon the person charged,
prosecution to specify the exact date does not render the
since even a mere query as to the whereabouts of the money [in
Information ipso facto defective. Moreover, the said date is also
this case, property], would be tantamount to a demand. 12 As
near the due date within which accused-appellant should have
expounded in Asejo v. People:13
delivered the proceeds or returned the said [pieces of jewelry] as
testified upon by Tangkoy, hence, there was sufficient With regard to the necessity of demand, we agree with the CA
compliance with the rules. Accused-appellant, therefore, cannot that demand under this kind of estafa need not be formal or
now be allowed to claim that he was not properly apprised of the written. The appellate court observed that the law is silent with
charges proferred against him.7 regard to the form of demand in estafa under Art. 315 1(b), thus:
It must be remembered that petitioner was convicted of the When the law does not qualify, We should not qualify. Should a
crime of Estafa under Article 315, paragraph 1 (b) of the RPC, written demand be necessary, the law would have stated so.
which reads: Otherwise, the word "demand" should be interpreted in its
general meaning as to include both written and oral demand.
ART. 315. Swindling (estafa). – Any person who shall defraud
Thus, the failure of the prosecution to present a written demand
another by any of the means mentioned hereinbelow.
as evidence is not fatal.
1. With unfaithfulness or abuse of confidence, namely:
xxxx
In Tubb v. People, where the complainant merely verbally The first paragraph of the above provision clearly states that for
inquired about the money entrusted to the accused, we held that acts bourne out of a case which is not punishable by law and the
the query was tantamount to a demand, thus: court finds it proper to repress, the remedy is to render the
proper decision and thereafter, report to the Chief Executive,
x x x [T]he law does not require a demand as a condition
through the Department of Justice, the reasons why the same
precedent to the existence of the crime of embezzlement. It so
act should be the subject of penal legislation. The premise here
happens only that failure to account, upon demand for funds or
is that a deplorable act is present but is not the subject of any
property held in trust, is circumstantial evidence of
penal legislation, thus, the court is tasked to inform the Chief
misappropriation. The same way, however, be established by
Executive of the need to make that act punishable by law
other proof, such as that introduced in the case at bar.14
through legislation. The second paragraph is similar to the first
In view of the foregoing and based on the records, the except for the situation wherein the act is already punishable by
prosecution was able to prove the existence of all the elements law but the corresponding penalty is deemed by the court as
of the crime. Private complainant gave petitioner the pieces of excessive. The remedy therefore, as in the first paragraph is not
jewelry in trust, or on commission basis, as shown in the receipt to suspend the execution of the sentence but to submit to the
dated May 2, 1991 with an obligation to sell or return the same Chief Executive the reasons why the court considers the said
within sixty (60) days, if unsold. There was misappropriation penalty to be non-commensurate with the act committed. Again,
when petitioner failed to remit the proceeds of those pieces of the court is tasked to inform the Chief Executive, this time, of
jewelry sold, or if no sale took place, failed to return the same the need for a legislation to provide the proper penalty.
pieces of jewelry within or after the agreed period despite
In his book, Commentaries on the Revised Penal
demand from the private complainant, to the prejudice of the
Code,19 Guillermo B. Guevara opined that in Article 5, the duty
latter.
of the court is merely to report to the Chief Executive, with a
Anent the credibility of the prosecution's sole witness, which is recommendation for an amendment or modification of the legal
questioned by petitioner, the same is unmeritorious. Settled is provisions which it believes to be harsh. Thus:
the rule that in assessing the credibility of witnesses, this Court
This provision is based under the legal maxim "nullum crimen,
gives great respect to the evaluation of the trial court for it had
nulla poena sige lege," that is, that there can exist no punishable
the unique opportunity to observe the demeanor of witnesses
act except those previously and specifically provided for by penal
and their deportment on the witness stand, an opportunity
statute.
denied the appellate courts, which merely rely on the records of
the case.15 The assessment by the trial court is even conclusive No matter how reprehensible an act is, if the law-making body
and binding if not tainted with arbitrariness or oversight of some does not deem it necessary to prohibit its perpetration with
fact or circumstance of weight and influence, especially when penal sanction, the Court of justice will be entirely powerless to
such finding is affirmed by the CA.16 Truth is established not by punish such act.
the number of witnesses, but by the quality of their testimonies,
Under the provisions of this article the Court cannot suspend
for in determining the value and credibility of evidence, the
the execution of a sentence on the ground that the strict
witnesses are to be weighed not numbered.17
enforcement of the provisions of this Code would cause excessive
As regards the penalty, while this Court's Third Division was or harsh penalty. All that the Court could do in such eventuality
deliberating on this case, the question of the continued validity is to report the matter to the Chief Executive with a
of imposing on persons convicted of crimes involving property recommendation for an amendment or modification of the legal
came up. The legislature apparently pegged these penalties to provisions which it believes to be harsh.20
the value of the money and property in 1930 when it enacted the
Anent the non-suspension of the execution of the sentence,
Revised Penal Code. Since the members of the division reached
retired Chief Justice Ramon C. Aquino and retired Associate
no unanimity on this question and since the issues are of first
Justice Carolina C. Griño-Aquino, in their book, The Revised
impression, they decided to refer the case to the Court en banc
Penal Code,21 echoed the above-cited commentary, thus:
for consideration and resolution. Thus, several amici curiae were
invited at the behest of the Court to give their academic opinions The second paragraph of Art. 5 is an application of the
on the matter. Among those that graciously complied were Dean humanitarian principle that justice must be tempered with
Jose Manuel Diokno, Dean Sedfrey M. Candelaria, Professor mercy. Generally, the courts have nothing to do with the wisdom
Alfredo F. Tadiar, the Senate President, and the Speaker of the or justness of the penalties fixed by law. "Whether or not the
House of Representatives. The parties were later heard on oral penalties prescribed by law upon conviction of violations of
arguments before the Court en banc, with Atty. Mario L. particular statutes are too severe or are not severe enough, are
Bautista appearing as counsel de oficio of the petitioner. questions as to which commentators on the law may fairly differ;
but it is the duty of the courts to enforce the will of the legislator
After a thorough consideration of the arguments presented on
in all cases unless it clearly appears that a given penalty falls
the matter, this Court finds the following:
within the prohibited class of excessive fines or cruel and
There seems to be a perceived injustice brought about by the unusual punishment." A petition for clemency should be
range of penalties that the courts continue to impose on crimes addressed to the Chief Executive.22
against property committed today, based on the amount of
There is an opinion that the penalties provided for in crimes
damage measured by the value of money eighty years ago in
against property be based on the current inflation rate or at the
1932. However, this Court cannot modify the said range of
ratio of ₱1.00 is equal to ₱100.00 . However, it would be
penalties because that would constitute judicial legislation.
dangerous as this would result in uncertainties, as opposed to
What the legislature's perceived failure in amending the
the definite imposition of the penalties. It must be remembered
penalties provided for in the said crimes cannot be remedied
that the economy fluctuates and if the proposed imposition of the
through this Court's decisions, as that would be encroaching
penalties in crimes against property be adopted, the penalties
upon the power of another branch of the government. This,
will not cease to change, thus, making the RPC, a self-amending
however, does not render the whole situation without any
law. Had the framers of the RPC intended that to be so, it should
remedy. It can be appropriately presumed that the framers of
have provided the same, instead, it included the earlier cited
the Revised Penal Code (RPC) had anticipated this matter by
Article 5 as a remedy. It is also improper to presume why the
including Article 5, which reads:
present legislature has not made any moves to amend the
ART. 5. Duty of the court in connection with acts which should subject penalties in order to conform with the present times. For
be repressed but which are not covered by the law, and in cases all we know, the legislature intends to retain the same penalties
of excessive penalties. - Whenever a court has knowledge of any in order to deter the further commission of those punishable acts
act which it may deem proper to repress and which is not which have increased tremendously through the years. In fact,
punishable by law, it shall render the proper decision, and shall in recent moves of the legislature, it is apparent that it aims to
report to the Chief Executive, through the Department of broaden the coverage of those who violate penal laws. In the
Justice, the reasons which induce the court to believe that said crime of Plunder, from its original minimum amount of
act should be made the subject of penal legislation. ₱100,000,000.00 plundered, the legislature lowered it to
₱50,000,000.00. In the same way, the legislature lowered the
In the same way, the court shall submit to the Chief Executive,
threshold amount upon which the Anti-Money Laundering Act
through the Department of Justice, such statement as may be
may apply, from ₱1,000,000.00 to ₱500,000.00.
deemed proper, without suspending the execution of the
sentence, when a strict enforcement of the provisions of this It is also worth noting that in the crimes of Theft and Estafa, the
Code would result in the imposition of a clearly excessive present penalties do not seem to be excessive compared to the
penalty, taking into consideration the degree of malice and the proposed imposition of their corresponding penalties. In Theft,
injury caused by the offense.18 the provisions state that:
Art. 309. Penalties. — Any person guilty of theft shall be correccional medium (6 months and 1 day to 4 years and 2
punished by: months).
1. The penalty of prision mayor in its minimum and medium 4. ₱50.00 to ₱200.00 will become ₱5,000.00 to ₱20,000.00,
periods, if the value of the thing stolen is more than 12,000 pesos punishable by arresto mayor medium to prision correccional
but does not exceed 22,000 pesos, but if the value of the thing minimum (2 months and 1 day to 2 years and 4 months).
stolen exceeds the latter amount the penalty shall be the
5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00, punishable
maximum period of the one prescribed in this paragraph, and
by arresto mayor (1 month and 1 day to 6 months).
one year for each additional ten thousand pesos, but the total of
the penalty which may be imposed shall not exceed twenty 6. ₱5.00 will become ₱500.00, punishable by arresto mayor
years. In such cases, and in connection with the accessory minimum to arresto mayor medium.
penalties which may be imposed and for the purpose of the other
provisions of this Code, the penalty shall be termed prision x x x x.
mayor or reclusion temporal, as the case may be. II. Article 315, or the penalties for the crime of Estafa, the value
2. The penalty of prision correccional in its medium and would also be modified but the penalties are not changed, as
maximum periods, if the value of the thing stolen is more than follows:
6,000 pesos but does not exceed 12,000 pesos. 1st. ₱12,000.00 to ₱22,000.00, will become ₱1,200,000.00 to
3. The penalty of prision correccional in its minimum and ₱2,200,000.00, punishable by prision correccional maximum to
medium periods, if the value of the property stolen is more than prision mayor minimum (4 years, 2 months and 1 day to 8
200 pesos but does not exceed 6,000 pesos. years).25

4. Arresto mayor in its medium period to prision correccional in 2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to
its minimum period, if the value of the property stolen is over 50 ₱1,200,000.00, punishable by prision correccional minimum to
pesos but does not exceed 200 pesos. prision correccional medium (6 months and 1 day to 4 years and
2 months).26
5. Arresto mayor to its full extent, if such value is over 5 pesos
but does not exceed 50 pesos. 3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00,
punishable by arresto mayor maximum to prision correccional
6. Arresto mayor in its minimum and medium periods, if such minimum (4 months and 1 day to 2 years and 4 months).
value does not exceed 5 pesos.
4th. ₱200.00 will become ₱20,000.00, punishable by arresto
7. Arresto menor or a fine not exceeding 200 pesos, if the theft is mayor maximum (4 months and 1 day to 6 months).
committed under the circumstances enumerated in paragraph 3
of the next preceding article and the value of the thing stolen An argument raised by Dean Jose Manuel I. Diokno, one of our
does not exceed 5 pesos. If such value exceeds said amount, the esteemed amici curiae, is that the incremental penalty provided
provision of any of the five preceding subdivisions shall be made under Article 315 of the RPC violates the Equal Protection
applicable. Clause.

8. Arresto menor in its minimum period or a fine not exceeding The equal protection clause requires equality among equals,
50 pesos, when the value of the thing stolen is not over 5 pesos, which is determined according to a valid classification. The test
and the offender shall have acted under the impulse of hunger, developed by jurisprudence here and yonder is that of
poverty, or the difficulty of earning a livelihood for the support reasonableness,27 which has four requisites:
of himself or his family. (1) The classification rests on substantial distinctions;
In a case wherein the value of the thing stolen is ₱6,000.00, the (2) It is germane to the purposes of the law;
above-provision states that the penalty is prision correccional in
its minimum and medium periods (6 months and 1 day to 4 years (3) It is not limited to existing conditions only; and
and 2 months). Applying the proposal, if the value of the thing (4) It applies equally to all members of the same class.28
stolen is ₱6,000.00, the penalty is imprisonment of arresto
mayor in its medium period to prision correccional minimum According to Dean Diokno, the Incremental Penalty Rule (IPR)
period (2 months and 1 day to 2 years and 4 months). It would does not rest on substantial distinctions as ₱10,000.00 may have
seem that under the present law, the penalty imposed is almost been substantial in the past, but it is not so today, which violates
the same as the penalty proposed. In fact, after the application the first requisite; the IPR was devised so that those who commit
of the Indeterminate Sentence Law under the existing law, the estafa involving higher amounts would receive heavier
minimum penalty is still lowered by one degree; hence, the penalties; however, this is no longer achieved, because a person
minimum penalty is arresto mayor in its medium period to who steals ₱142,000.00 would receive the same penalty as
maximum period (2 months and 1 day to 6 months), making the someone who steals hundreds of millions, which violates the
offender qualified for pardon or parole after serving the said second requisite; and, the IPR violates requisite no. 3,
minimum period and may even apply for probation. Moreover, considering that the IPR is limited to existing conditions at the
under the proposal, the minimum penalty after applying the time the law was promulgated, conditions that no longer exist
Indeterminate Sentence Law is arresto menor in its maximum today.
period to arresto mayor in its minimum period (21 days to 2
Assuming that the Court submits to the argument of Dean
months) is not too far from the minimum period under the
Diokno and declares the incremental penalty in Article 315
existing law. Thus, it would seem that the present penalty
unconstitutional for violating the equal protection clause, what
imposed under the law is not at all excessive. The same is also
then is the penalty that should be applied in case the amount of
true in the crime of Estafa.23
the thing subject matter of the crime exceeds ₱22,000.00? It
Moreover, if we apply the ratio of 1:100, as suggested to the seems that the proposition poses more questions than answers,
value of the thing stolen in the crime of Theft and the damage which leads us even more to conclude that the appropriate
caused in the crime of Estafa, the gap between the minimum and remedy is to refer these matters to Congress for them to exercise
the maximum amounts, which is the basis of determining the their inherent power to legislate laws.
proper penalty to be imposed, would be too wide and the penalty
Even Dean Diokno was of the opinion that if the Court declares
imposable would no longer be commensurate to the act
the IPR unconstitutional, the remedy is to go to Congress. Thus:
committed and the value of the thing stolen or the damage
caused: xxxx
I. Article 309, or the penalties for the crime of Theft, the value JUSTICE PERALTA:
would be modified but the penalties are not changed:
Now, your position is to declare that the incremental penalty
1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00 to should be struck down as unconstitutional because it is absurd.
₱2,200,000.00, punished by prision mayor minimum to prision
DEAN DIOKNO:
mayor medium (6 years and 1 day to 10 years).
Absurd, it violates equal protection, Your Honor, and cruel and
2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to
unusual punishment.
₱1,200,000.00, punished by prision correccional medium and to
prision correccional maximum (2 years, 4 months and 1 day to 6 JUSTICE PERALTA:
years).24
Then what will be the penalty that we are going to impose if the
3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, amount is more than Twenty-Two Thousand (₱22,000.00) Pesos.
punishable by prision correccional minimum to prision
DEAN DIOKNO:
Well, that would be for Congress to ... if this Court will declare Dean Diokno also contends that Article 315 of the Revised Penal
the incremental penalty rule unconstitutional, then that would Code constitutes cruel and unusual punishment. Citing Solem
... the void should be filled by Congress. v. Helm,30 Dean Diokno avers that the United States Federal
Supreme Court has expanded the application of a similar
JUSTICE PERALTA:
Constitutional provision prohibiting cruel and unusual
But in your presentation, you were fixing the amount at One punishment, to the duration of the penalty, and not just its form.
Hundred Thousand (₱100,000.00) Pesos ... The court therein ruled that three things must be done to decide
whether a sentence is proportional to a specific crime, viz.; (1)
DEAN DIOKNO: Compare the nature and gravity of the offense, and the
Well, my presen ... (interrupted) harshness of the penalty; (2) Compare the sentences imposed on
other criminals in the same jurisdiction, i.e., whether more
JUSTICE PERALTA: serious crimes are subject to the same penalty or to less serious
For every One Hundred Thousand (₱100,000.00) Pesos in excess penalties; and (3) Compare the sentences imposed for
of Twenty-Two Thousand (₱22,000.00) Pesos you were commission of the same crime in other jurisdictions.
suggesting an additional penalty of one (1) year, did I get you However, the case of Solem v. Helm cannot be applied in the
right? present case, because in Solem what respondent therein deemed
DEAN DIOKNO: cruel was the penalty imposed by the state court of South
Dakota after it took into account the latter’s recidivist statute
Yes, Your Honor, that is, if the court will take the route of and not the original penalty for uttering a "no account" check.
statutory interpretation. Normally, the maximum punishment for the crime would have
been five years imprisonment and a $5,000.00 fine. Nonetheless,
JUSTICE PERALTA:
respondent was sentenced to life imprisonment without the
Ah ... possibility of parole under South Dakota’s recidivist statute
because of his six prior felony convictions. Surely, the factual
DEAN DIOKNO:
antecedents of Solem are different from the present controversy.
If the Court will say that they can go beyond the literal wording
With respect to the crime of Qualified Theft, however, it is true
of the law...
that the imposable penalty for the offense is high. Nevertheless,
JUSTICE PERALTA: the rationale for the imposition of a higher penalty against a
domestic servant is the fact that in the commission of the crime,
But if we de ... (interrupted) the helper will essentially gravely abuse the trust and
DEAN DIOKNO: confidence reposed upon her by her employer. After accepting
and allowing the helper to be a member of the household, thus
....then.... entrusting upon such person the protection and safekeeping of
JUSTICE PERALTA: the employer’s loved ones and properties, a subsequent betrayal
of that trust is so repulsive as to warrant the necessity of
Ah, yeah. But if we declare the incremental penalty as imposing a higher penalty to deter the commission of such
unsconstitutional, the court cannot fix the amount ... wrongful acts.
DEAN DIOKNO: There are other crimes where the penalty of fine and/or
imprisonment are dependent on the subject matter of the crime
No, Your Honor.
and which, by adopting the proposal, may create serious
JUSTICE PERALTA: implications. For example, in the crime of Malversation, the
penalty imposed depends on the amount of the money malversed
... as the equivalent of one, as an incremental penalty in excess
by the public official, thus:
of Twenty-Two Thousand (₱22,000.00) Pesos.
Art. 217. Malversation of public funds or property; Presumption
DEAN DIOKNO:
of malversation. — Any public officer who, by reason of the
No, Your Honor. duties of his office, is accountable for public funds or property,
shall appropriate the same or shall take or misappropriate or
JUSTICE PERALTA: shall consent, through abandonment or negligence, shall permit
The Court cannot do that. any other person to take such public funds, or property, wholly
or partially, or shall otherwise be guilty of the misappropriation
DEAN DIOKNO: or malversation of such funds or property, shall suffer:
Could not be. 1. The penalty of prision correccional in its medium and
JUSTICE PERALTA: maximum periods, if the amount involved in the
misappropriation or malversation does not exceed two hundred
The only remedy is to go to Congress... pesos.
DEAN DIOKNO: 2. The penalty of prision mayor in its minimum and medium
periods, if the amount involved is more than two hundred pesos
Yes, Your Honor.
but does not exceed six thousand pesos.
JUSTICE PERALTA:
3. The penalty of prision mayor in its maximum period to
... and determine the value or the amount. reclusion temporal in its minimum period, if the amount
involved is more than six thousand pesos but is less than twelve
DEAN DIOKNO:
thousand pesos.
Yes, Your Honor.
4. The penalty of reclusion temporal, in its medium and
JUSTICE PERALTA: maximum periods, if the amount involved is more than twelve
thousand pesos but is less than twenty-two thousand pesos. If
That will be equivalent to the incremental penalty of one (1) year the amount exceeds the latter, the penalty shall be reclusion
in excess of Twenty-Two Thousand (₱22,000.00) Pesos. temporal in its maximum period to reclusion perpetua.
DEAN DIOKNO: In all cases, persons guilty of malversation shall also suffer the
Yes, Your Honor. penalty of perpetual special disqualification and a fine equal to
the amount of the funds malversed or equal to the total value of
JUSTICE PERALTA: the property embezzled.
The amount in excess of Twenty-Two Thousand (₱22,000.00) The failure of a public officer to have duly forthcoming any
Pesos. public funds or property with which he is chargeable, upon
Thank you, Dean. demand by any duly authorized officer, shall be prima facie
evidence that he has put such missing funds or property to
DEAN DIOKNO: personal use.
Thank you. The above-provisions contemplate a situation wherein the
Government loses money due to the unlawful acts of the
xxx x29
offender. Thus, following the proposal, if the amount malversed
is ₱200.00 (under the existing law), the amount now becomes
₱20,000.00 and the penalty is prision correccional in its medium Articles 309 and 31036 of the Revised Penal Code, which means
and maximum periods (2 years 4 months and 1 day to 6 years). that the penalty imposable for the offense is, again, based on the
The penalty may not be commensurate to the act of value of the timber or forest products involved in the offense.
embezzlement of ₱20,000.00 compared to the acts committed by Now, if we accept the said proposal in the crime of Theft, will
public officials punishable by a special law, i.e., Republic Act No. this particular crime of Illegal Logging be amended also in so far
3019 or the Anti-Graft and Corrupt Practices Act, specifically as the penalty is concerned because the penalty is dependent on
Section 3,31 wherein the injury caused to the government is not Articles 309 and 310 of the RPC? The answer is in the negative
generally defined by any monetary amount, the penalty (6 years because the soundness of this particular law is not in question.
and 1 month to 15 years)32 under the Anti-Graft Law will now
With the numerous crimes defined and penalized under the
become higher. This should not be the case, because in the crime
Revised Penal Code and Special Laws, and other related
of malversation, the public official takes advantage of his public
provisions of these laws affected by the proposal, a thorough
position to embezzle the fund or property of the government
study is needed to determine its effectivity and necessity. There
entrusted to him.
may be some provisions of the law that should be amended;
The said inequity is also apparent in the crime of Robbery with nevertheless, this Court is in no position to conclude as to the
force upon things (inhabited or uninhabited) where the value of intentions of the framers of the Revised Penal Code by merely
the thing unlawfully taken and the act of unlawful entry are the making a study of the applicability of the penalties imposable in
bases of the penalty imposable, and also, in Malicious Mischief, the present times. Such is not within the competence of the
where the penalty of imprisonment or fine is dependent on the Court but of the Legislature which is empowered to conduct
cost of the damage caused. public hearings on the matter, consult legal luminaries and who,
after due proceedings, can decide whether or not to amend or to
In Robbery with force upon things (inhabited or uninhabited), if
revise the questioned law or other laws, or even create a new
we increase the value of the thing unlawfully taken, as proposed
legislation which will adopt to the times.
in the ponencia, the sole basis of the penalty will now be the
value of the thing unlawfully taken and no longer the element of Admittedly, Congress is aware that there is an urgent need to
force employed in entering the premises. It may likewise cause amend the Revised Penal Code. During the oral arguments,
an inequity between the crime of Qualified Trespass to Dwelling counsel for the Senate informed the Court that at present, fifty-
under Article 280, and this kind of robbery because the former six (56) bills are now pending in the Senate seeking to amend
is punishable by prision correccional in its medium and the Revised Penal Code,37 each one proposing much needed
maximum periods (2 years, 4 months and 1 day to 6 years) and change and updates to archaic laws that were promulgated
a fine not exceeding ₱1,000.00 (₱100,000.00 now if the ratio is decades ago when the political, socio-economic, and cultural
1:100) where entrance to the premises is with violence or settings were far different from today’s conditions.
intimidation, which is the main justification of the penalty.
Verily, the primordial duty of the Court is merely to apply the
Whereas in the crime of Robbery with force upon things, it is
law in such a way that it shall not usurp legislative powers by
punished with a penalty of prision mayor (6 years and 1 day to
judicial legislation and that in the course of such application or
12 years) if the intruder is unarmed without the penalty of Fine
construction, it should not make or supervise legislation, or
despite the fact that it is not merely the illegal entry that is the
under the guise of interpretation, modify, revise, amend, distort,
basis of the penalty but likewise the unlawful taking.
remodel, or rewrite the law, or give the law a construction which
Furthermore, in the crime of Other Mischiefs under Article 329, is repugnant to its terms.38 The Court should apply the law in a
the highest penalty that can be imposed is arresto mayor in its manner that would give effect to their letter and spirit,
medium and maximum periods (2 months and 1 day to 6 especially when the law is clear as to its intent and purpose.
months) if the value of the damage caused exceeds ₱1,000.00, Succinctly put, the Court should shy away from encroaching
but under the proposal, the value of the damage will now become upon the primary function of a co-equal branch of the
₱100,000.00 (1:100), and still punishable by arresto mayor (1 Government; otherwise, this would lead to an inexcusable
month and 1 day to 6 months). And, if the value of the damaged breach of the doctrine of separation of powers by means of
property does not exceed ₱200.00, the penalty is arresto menor judicial legislation.
or a fine of not less than the value of the damage caused and not
Moreover, it is to be noted that civil indemnity is, technically,
more than ₱200.00, if the amount involved does not exceed
not a penalty or a Fine; hence, it can be increased by the Court
₱200.00 or cannot be estimated. Under the proposal, ₱200.00
when appropriate. Article 2206 of the Civil Code provides:
will now become ₱20,000.00, which simply means that the fine
of ₱200.00 under the existing law will now become ₱20,000.00. Art. 2206. The amount of damages for death caused by a crime
The amount of Fine under this situation will now become or quasi-delict shall be at least three thousand pesos, even
excessive and afflictive in nature despite the fact that the offense though there may have been mitigating circumstances. In
is categorized as a light felony penalized with a light penalty addition:
under Article 26 of the RPC.33 Unless we also amend Article 26
of the RPC, there will be grave implications on the penalty of (1) The defendant shall be liable for the loss of the earning
Fine, but changing the same through Court decision, either capacity of the deceased, and the indemnity shall be paid to the
expressly or impliedly, may not be legally and constitutionally heirs of the latter; such indemnity shall in every case be assessed
feasible. and awarded by the court, unless the deceased on account of
permanent physical disability not caused by the defendant, had
There are other crimes against property and swindling in the no earning capacity at the time of his death;
RPC that may also be affected by the proposal, such as those
that impose imprisonment and/or Fine as a penalty based on the (2) If the deceased was obliged to give support according to the
value of the damage caused, to wit: Article 311 (Theft of the provisions of Article 291, the recipient who is not an heir called
property of the National Library and National Museum), Article to the decedent's inheritance by the law of testate or intestate
312 (Occupation of real property or usurpation of real rights in succession, may demand support from the person causing the
property), Article 313 (Altering boundaries or landmarks), death, for a period not exceeding five years, the exact duration
Article 316 (Other forms of swindling), Article 317 (Swindling a to be fixed by the court;
minor), Article 318 (Other deceits), Article 328 (Special cases of (3) The spouse, legitimate and illegitimate descendants and
malicious mischief) and Article 331 (Destroying or damaging ascendants of the deceased may demand moral damages for
statues, public monuments or paintings). Other crimes that mental anguish by reason of the death of the deceased.
impose Fine as a penalty will also be affected, such as: Article
213 (Frauds against the public treasury and similar offenses), In our jurisdiction, civil indemnity is awarded to the offended
Article 215 (Prohibited Transactions), party as a kind of monetary restitution or compensation to the
victim for the damage or infraction that was done to the latter
Article 216 (Possession of prohibited interest by a public officer), by the accused, which in a sense only covers the civil aspect.
Article 218 (Failure of accountable officer to render accounts), Precisely, it is civil indemnity. Thus, in a crime where a person
Article 219 (Failure of a responsible public officer to render dies, in addition to the penalty of imprisonment imposed to the
accounts before leaving the country). offender, the accused is also ordered to pay the victim a sum of
In addition, the proposal will not only affect crimes under the money as restitution. Clearly, this award of civil indemnity due
RPC. It will also affect crimes which are punishable by special to the death of the victim could not be contemplated as akin to
penal laws, such as Illegal Logging or Violation of Section 68 of the value of a thing that is unlawfully taken which is the basis
Presidential Decree No. 705, as amended.34The law treats in the imposition of the proper penalty in certain crimes. Thus,
cutting, gathering, collecting and possessing timber or other the reasoning in increasing the value of civil indemnity awarded
forest products without license as an offense as grave as and in some offense cannot be the same reasoning that would sustain
equivalent to the felony of qualified theft.35 Under the law, the the adoption of the suggested ratio. Also, it is apparent from
offender shall be punished with the penalties imposed under Article 2206 that the law only imposes a minimum amount for
awards of civil indemnity, which is ₱3,000.00. The law did not weighed upon in order to arrive at a wholistic change that all of
provide for a ceiling. Thus, although the minimum amount for us believe should be made to our existing law. Dejectedly, the
the award cannot be changed, increasing the amount awarded Court is ill-equipped, has no resources, and lacks sufficient
as civil indemnity can be validly modified and increased when personnel to conduct public hearings and sponsor studies and
the present circumstance warrants it. Corollarily, moral surveys to validly effect these changes in our Revised Penal
damages under Article 222039 of the Civil Code also does not fix Code. This function clearly and appropriately belongs to
the amount of damages that can be awarded. It is discretionary Congress. Even Professor Tadiar concedes to this conclusion, to
upon the court, depending on the mental anguish or the wit:
suffering of the private offended party. The amount of moral
xxxx
damages can, in relation to civil indemnity, be adjusted so long
as it does not exceed the award of civil indemnity. JUSTICE PERALTA:
In addition, some may view the penalty provided by law for the Yeah, Just one question. You are suggesting that in order to
offense committed as tantamount to cruel punishment. determine the value of Peso you have to take into consideration
However, all penalties are generally harsh, being punitive in several factors.
nature. Whether or not they are excessive or amount to cruel
punishment is a matter that should be left to lawmakers. It is PROFESSOR TADIAR:
the prerogative of the courts to apply the law, especially when Yes.
they are clear and not subject to any other interpretation than
that which is plainly written. JUSTICE PERALTA:

Similar to the argument of Dean Diokno, one of Justice Antonio Per capita income.
Carpio’s opinions is that the incremental penalty provision PROFESSOR TADIAR:
should be declared unconstitutional and that the courts should
only impose the penalty corresponding to the amount of Per capita income.
₱22,000.00, regardless if the actual amount involved exceeds
JUSTICE PERALTA:
₱22,000.00. As suggested, however, from now until the law is
properly amended by Congress, all crimes of Estafa will no Consumer price index.
longer be punished by the appropriate penalty. A conundrum in
PROFESSOR TADIAR:
the regular course of criminal justice would occur when every
accused convicted of the crime of estafa will be meted penalties Yeah.
different from the proper penalty that should be imposed. Such
drastic twist in the application of the law has no legal basis and JUSTICE PERALTA:
directly runs counter to what the law provides. Inflation ...
It should be noted that the death penalty was reintroduced in PROFESSOR TADIAR:
the dispensation of criminal justice by the Ramos
Administration by virtue of Republic Act No. 765940 in Yes.
December 1993. The said law has been questioned before this JUSTICE PERALTA:
Court. There is, arguably, no punishment more cruel than that
of death. Yet still, from the time the death penalty was re- ... and so on. Is the Supreme Court equipped to determine those
imposed until its lifting in June 2006 by Republic Act No. factors?
9346,41 the Court did not impede the imposition of the death
PROFESSOR TADIAR:
penalty on the ground that it is a "cruel punishment" within the
purview of Section 19 (1),42 Article III of the Constitution. There are many ways by which the value of the Philippine Peso
Ultimately, it was through an act of Congress suspending the can be determined utilizing all of those economic terms.
imposition of the death penalty that led to its non-imposition
JUSTICE PERALTA:
and not via the intervention of the Court.
Yeah, but ...
Even if the imposable penalty amounts to cruel punishment, the
Court cannot declare the provision of the law from which the PROFESSOR TADIAR:
proper penalty emanates unconstitutional in the present action.
Not only is it violative of due process, considering that the State And I don’t think it is within the power of the Supreme Court to
and the concerned parties were not given the opportunity to pass upon and peg the value to One Hundred (₱100.00) Pesos to
comment on the subject matter, it is settled that the ...
constitutionality of a statute cannot be attacked collaterally JUSTICE PERALTA:
because constitutionality issues must be pleaded directly and
not collaterally,43 more so in the present controversy wherein Yeah.
the issues never touched upon the constitutionality of any of the PROFESSOR TADIAR:
provisions of the Revised Penal Code.
... One (₱1.00.00) Peso in 1930.
Besides, it has long been held that the prohibition of cruel and
unusual punishments is generally aimed at the form or JUSTICE PERALTA:
character of the punishment rather than its severity in respect
That is legislative in nature.
of duration or amount, and applies to punishments which public
sentiment has regarded as cruel or obsolete, for instance, those PROFESSOR TADIAR:
inflicted at the whipping post, or in the pillory, burning at the
That is my position that the Supreme Court ...
stake, breaking on the wheel, disemboweling, and the like. Fine
and imprisonment would not thus be within the prohibition. 44 JUSTICE PERALTA:
It takes more than merely being harsh, excessive, out of Yeah, okay.
proportion, or severe for a penalty to be obnoxious to the
Constitution. The fact that the punishment authorized by the PROFESSOR TADIAR:
statute is severe does not make it cruel and unusual. Expressed ... has no power to utilize the power of judicial review to in order
in other terms, it has been held that to come under the ban, the to adjust, to make the adjustment that is a power that belongs
punishment must be "flagrantly and plainly oppressive," "wholly to the legislature.
disproportionate to the nature of the offense as to shock the
moral sense of the community."45 JUSTICE PERALTA:

Cruel as it may be, as discussed above, it is for the Congress to Thank you, Professor.
amend the law and adapt it to our modern time. PROFESSOR TADIAR:
The solution to the present controversy could not be solved by Thank you.46
merely adjusting the questioned monetary values to the present
value of money based only on the current inflation rate. There Finally, the opinion advanced by Chief Justice Maria Lourdes P.
are other factors and variables that need to be taken into A. Sereno echoes the view that the role of the Court is not merely
consideration, researched, and deliberated upon before the said to dispense justice, but also the active duty to prevent injustice.
values could be accurately and properly adjusted. The effects on Thus, in order to prevent injustice in the present controversy,
the society, the injured party, the accused, its socio-economic the Court should not impose an obsolete penalty pegged eighty
impact, and the likes must be painstakingly evaluated and three years ago, but consider the proposed ratio of 1:100 as
simply compensating for inflation. Furthermore, the Court has Considering that the amount of ₱98,000.00 is ₱76,000.00 more
in the past taken into consideration "changed conditions" or than the ₱22,000.00 ceiling set by law, then, adding one year for
"significant changes in circumstances" in its decisions. each additional ₱10,000.00, the maximum period of 6 years, 8
months and 21 days to 8 years of prision mayor minimum would
Similarly, the Chief Justice is of the view that the Court is not
be increased by 7 years. Taking the maximum of the prescribed
delving into the validity of the substance of a statute. The issue
penalty, which is 8 years, plus an additional 7 years, the
is no different from the Court’s adjustment of indemnity in
maximum of the indeterminate penalty is 15 years.
crimes against persons, which the Court had previously
adjusted in light of current times, like in the case of People v. Applying the Indeterminate Sentence Law, since the penalty
Pantoja.47 Besides, Article 10 of the Civil Code mandates a prescribed by law for the estafa charge against petitioner is
presumption that the lawmaking body intended right and prision correccional maximum to prision mayor minimum, the
justice to prevail. penalty next lower would then be prision correccional in its
minimum and medium periods.
With due respect to the opinions and proposals advanced by the
Chief Justice and my Colleagues, all the proposals ultimately Thus, the minimum term of the indeterminate sentence should
lead to prohibited judicial legislation. Short of being repetitious be anywhere from 6 months and 1 day to 4 years and 2 months.
and as extensively discussed above, it is truly beyond the powers
One final note, the Court should give Congress a chance to
of the Court to legislate laws, such immense power belongs to
perform its primordial duty of lawmaking. The Court should not
Congress and the Court should refrain from crossing this clear-
pre-empt Congress and usurp its inherent powers of making and
cut divide. With regard to civil indemnity, as elucidated before,
enacting laws. While it may be the most expeditious approach,
this refers to civil liability which is awarded to the offended
a short cut by judicial fiat is a dangerous proposition, lest the
party as a kind of monetary restitution. It is truly based on the
Court dare trespass on prohibited judicial legislation.
value of money. The same cannot be said on penalties because,
as earlier stated, penalties are not only based on the value of WHEREFORE, the Petition for Review on Certiorari dated
money, but on several other factors. Further, since the law is November 5, 2007 of petitioner Lito Corpuz is hereby DENIED.
silent as to the maximum amount that can be awarded and only Consequently, the Decision dated March 22, 2007 and
pegged the minimum sum, increasing the amount granted as Resolution dated September 5, 2007 of the Court of Appeals,
civil indemnity is not proscribed. Thus, it can be adjusted in light which affirmed with modification the Decision dated July 30,
of current conditions. 2004 of the Regional Trial Court, Branch 46, San Fernando City,
finding petitioner guilty beyond reasonable doubt of the crime of
Now, with regard to the penalty imposed in the present case, the
Estafa under Article 315, paragraph (1), sub-paragraph (b) of
CA modified the ruling of the RTC. The RTC imposed the
the Revised Penal Code, are hereby AFFIRMED with
indeterminate penalty of four (4) years and two (2) months of
MODIFICATION that the penalty imposed is the indeterminate
prision correccional in its medium period, as minimum, to
penalty of imprisonment ranging from THREE (3) YEARS, TWO
fourteen (14) years and eight (8) months of reclusion temporal
(2) MONTHS and ELEVEN DAYS of prision correccional, as
in its minimum period, as maximum. However, the CA imposed
minimum, to FIFTEEN (15) YEARS of reclusion temporal as
the indeterminate penalty of four (4) years and two (2) months
maximum.
of prision correccional, as minimum, to eight (8) years of prision
mayor, as maximum, plus one (1) year for each additional Pursuant to Article 5 of the Revised Penal Code, let a Copy of
₱10,000.00, or a total of seven (7) years. this Decision be furnished the President of the Republic of the
Philippines, through the Department of Justice.
In computing the penalty for this type of estafa, this Court's
ruling in Cosme, Jr. v. People48 is highly instructive, thus: Also, let a copy of this Decision be furnished the President of the
Senate and the Speaker of the House of Representatives.
With respect to the imposable penalty, Article 315 of the Revised
Penal Code provides: SO ORDERED.
ART. 315 Swindling (estafa). - Any person who shall defraud
another by any of the means mentioned hereinbelow shall be
punished by:
1st. The penalty of prision correccional in its maximum period
to prision mayor in its minimum period, if the amount of the
fraud is over 12,000 but does not exceed 22,000 pesos, and if such
amount exceeds the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum period, adding one
year for each additional 10,000 pesos; but the total penalty
which may be imposed shall not exceed twenty years. In such
case, and in connection with the accessory penalties which may
be imposed and for the purpose of the other provisions of this
Code, the penalty shall be termed prision mayor or reclusion
temporal, as the case may be.
The penalty prescribed by Article 315 is composed of only two,
not three, periods, in which case, Article 65 of the same Code
requires the division of the time included in the penalty into
three equal portions of time included in the penalty prescribed,
forming one period of each of the three portions. Applying the
latter provisions, the maximum, medium and minimum periods
of the penalty prescribed are:
Maximum - 6 years, 8 months, 21 days to 8 years
Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20
days
Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10
days49
To compute the maximum period of the prescribed penalty,
prisión correccional maximum to prisión mayor minimum
should be divided into three equal portions of time each of which
portion shall be deemed to form one period in accordance with
Article 6550 of the RPC.51 In the present case, the amount
involved is ₱98,000.00, which exceeds ₱22,000.00, thus, the
maximum penalty imposable should be within the maximum
period of 6 years, 8 months and 21 days to 8 years of prision
mayor. Article 315 also states that a period of one year shall be
added to the penalty for every additional ₱10,000.00 defrauded
in excess of ₱22,000.00, but in no case shall the total penalty
which may be imposed exceed 20 years.
EN BANC hand of the legislatures, so that it falls within the realm of public
statutory law.
G.R. No. 17584 March 8, 1922
As has been said by Chief Justice Marshall:
THE PEOPLE OF THE PHILIPPINES ISLANDS, plaintiff-
appellee, A constitution, to contain an accurate detail of all the
vs. Subdivisions of which its great powers will admit, and of all the
GREGORIO SANTIAGO, defendant-appellant. means by which they may be carried into execution, would
partake of a prolixity of a legal code, and could scarcely be
L. Porter Hamilton for appellant.
embraced by the human mind. It would probably never be
Acting Attorney-General Tuason for appellee.
understood by the public. (M'Culloch vs. Maryland [1819], 4
ROMUALDEZ, J.: Wheat., 316, 407; 4 L. ed., 579.)

Having caused the death of Porfirio Parondo, a boy 7 years old, That is why, in pursuance of the Constitution of the United
by striking him with automobile that he was driving, the herein States, each States, each State has the authority, under its
appellant was prosecuted for the crime of homicide by reckless police power, to define and punish crimes and to lay down the
negligence and was sentenced to suffer one year and one day rules of criminal procedure.
of prision correccional, and to pay the costs of the trial.
The states, as a part of their police power, have a large measure
Not agreeable with that sentence he now comes to this court of discretion in creating and defining criminal offenses. . . .
alleging that the court below committed four errors, to wit:
A Statute relating to criminal procedure is void as a denial of
1. The trial court erred in not taking judicial notice of the fact the equal protection of the laws if it prescribes a different
that the appellant was being prosecuted in conformity with Act procedure in the case of persons in like situation. Subject to this
No. 2886 of the Philippine Legislature and that the Act is limitation, however, the legislature has large measure of
unconstitutional and gave no jurisdiction in this case. discretion in prescribing the modes of criminal procedure. . . .
(12 C.J., 1185, 1186. See Collins vs. Johnston, 237 U.S., 502; 35
2. The lower court erred in not dismissing the complaint after s. Ct. Rep. 649; 59 L. ed., 1071; Shevlin-Carpenter Co. vs.
the presentation of the evidence in the case, if not before, for the Minnesota, 218 U.S., 57; 30 S. Ct. Rep., 663; 54 L. ed., 930; Lynn
reason that said Act No. 2886 is unconstitutional and the vs. Flancders, 141 Ga., 500; 81 S.E., 205.)
proceedings had in the case under the provisions of the Act
constitute a prosecution of appellant without due process of law. This power of the States of the North American Union was also
granted to its territories such as the Philippines:
3. The court a quo erred in not finding that it lacked jurisdiction
over the person of the accused and over the subject- matter of The plenary legislative power which Congress possesses over the
the complaint. territories and possessions of the United States may be
exercised by that body itself, or, as is much more often the case,
4. The trial court erred in finding the appellant guilty of the it may be delegated to a local agency, such as a legislature, the
crime charged and in sentencing him to one year and one day organization of which proceeds upon much the same lines as in
of prison correccional and to the payment of costs. the several States or in Congress, which is often taken as a
With regard to the questions of fact, we have to say that we have model, and whose powers are limited by the Organic Act; but
examined the record and find that the conclusions of the trial within the scope of such act is has complete authority to
judge, as contained in his well-written decision, are sufficiently legislate, . . . and in general, to legislate upon all subjects within
sustained by the evidence submitted. the police power of the territory. (38 Cyc., 205-207.)

The accused was driving an automobile at the rate of 30 miles The powers of the territorial legislatures are derived from
an hour on a highway 6 meter wide, notwithstanding the fact Congress. By act of Congress their power extends "to all rightful
that he had to pass a narrow space between a wagon standing subjects of legislation not inconsistent with the Constitution and
on one side of the road and a heap of stones on the other side laws of the United States;" and this includes the power to define
where the were two young boys, the appellant did not take the and punish crimes. (16 C. J., 62.)
precaution required by the circumstances by slowing his And in the exercise of such powers the military government of
machine, and did not proceed with the vigilant care that under the army of occupation, functioning as a territorial legislature,
the circumstances an ordinary prudent man would take in order thought it convenient to establish new rules of procedure in
to avoid possible accidents that might occur, as unfortunately criminal matters, by the issuance of General Orders No. 58, the
did occur, as his automobile ran over the boy Porfirio Parondo preamble of which reads:
who was instantly killed as the result of the accident.
In the interests of justice, and to safeguard the civil liberties of
These facts are so well established in the records that there the inhabitants of these Islands, the criminal code of procedure
cannot be a shade of doubt about them. now in force therein is hereby amended in certain of its
Coming now to the other assignments of error, it will be seen important provisions, as indicated in the following enumerated
that they deal with the fundamental questions as to whether or sections. (Emphasis ours.)
not Act No. 2886, under which the complaint in the present case Its main purpose is, therefore, limited to criminal procedure and
was filed, is valid and constitutional. its intention is to give to its provisions the effect of law in
This Act is attacked on account of the amendments that it criminal matters. For that reason it provides in section 1 that:
introduces in General Orders No. 58, the defense arguing that The following provisions shall have the force and effect of law in
the Philippine Legislature was, and is, not authorized to amend criminal matters in the Philippine Islands from and after the
General Orders No. 58, as it did by amending section 2 thereof 15th day of May, 1900, but existing laws on the same subjects
because its provisions have the character of constitutional law. shall remain valid except in so far as hereinafter modified or
Said section 2 provides as follows: repealed expressly or by necessary implication.
All prosecutions for public offenses shall be in the name of the From what has been said it clearly follows that the provisions of
United States against the persons charged with the offenses. (G. this General Order do not the nature of constitutional law either
O. No. 58, sec. 2 ). by reason of its character or by reason of the authority that
Act No. 2886, which amends it, by virtue of which the People of enacted it into law.
the Philippine Island is made the plaintiff in this information, It cannot be said that it has acquired this character because this
contains the following provisions in section 1: order was made its own by the Congress of the United States for,
SECTION 1. Section two of General Orders, Numbered Fifty- as a mater of fact, this body never adopted it as a law of its own
eight, series of nineteen hundred, is hereby amended to read as creation either before the promulgation of Act No. 2886, herein
follows: discussed, or, to our knowledge, to this date.

"SEC. 2. All prosecutions for public offenses shall be in the name Since the provisions of this General Order have the character of
of the People of the Philippine Islands against the persons statutory law, the power of the Legislature to amend it is self-
charged with the offense." evident, even if the question is considered only on principle. Our
present Legislature, which has enacted Act No. 2886, the subject
Let us examine the question. of our inquiry, is the legal successor to the Military Government
For practical reasons, the procedure in criminal matters is not as a legislative body.
incorporated in the Constitutions of the States, but is left in the Since the advent of the American sovereignty in the Philippines
the legislative branch of our government has undergone
transformations and has developed itself until it attained its There is not a single constitutional provision applicable to the
present form. Firstly, it was the Military Government of the Philippines prescribing the name to be used as party plaintiff in
army of occupation which, in accordance with international law criminal cases.
and practice, was vested with legislative functions and in fact
The fact that the political status of this country is as yet
did legislate; afterwards, complying with the instructions of
undetermined and in a transitory stage, is, in our opinion,
President McKinley which later were ratified by Congress (sec.
responsible for the fact that there is no positive provision in our
1 of the Act of July 1, 1902) the legislative powers of the Military
constitutional law regarding the use of the name of the People
Government were transferred to the Philippine Commission;
of the Philippine Islands, as party plaintiff, in criminal
then, under the provisions of section 7 of the Act of Congress of
prosecutions, as is otherwise the case in the respective
July 1, 1902, the Philippine Assembly was created and it
constitutional charters of the States of the Union and
functioned as a colegislative body with the Philippine
incorporated territories — a situation which must not be
Commission. Finally, by virtue of the provisions of sections 12 of
understood as depriving the Government of the Philippines of
the Act of Congress of August 29, 1916, known as the Jones Law,
its power, however delegated, to prosecute public crimes. The
the Philippine Commission gave way to the Philippine Senate,
fact is undeniable that the present government of the
the Philippine Assembly became the House of Representatives,
Philippines, created by the Congress of the United States, is
and thus was formed the present Legislature composed of two
autonomous.
Houses which has enacted the aforesaid Act No. 2886.
This autonomy of the Government of the Philippines reaches all
As a matter of fact, Act No. 2886 is not the first law that amends
judicial actions, the case at bar being one of them; as an example
General Orders No. 58. The Philippine Commission, at various
of such autonomy, this Government, the same as that of Hawaii
times, had amended it by the enactment of laws among which
and Porto Rico (People of Porto Rico vs. Rosaly y Castillo [1913],
we may cite Act No. 194, regarding preliminary investigation,
227 U.S., 270; 57 L. ed., 507; 33 Sup. Ct. Rep., 352) cannot be
Act No. 440 relating to counsels de oficio and Act No. 590 about
sued without its consent. (Merritt vs. Government of the
preliminary investigations by justices of the peace of provincial
Philippine Islands, 34 Phil., 311; L. S. Moon & Co. vs. Harrison,
capitals. Later on, and before the enactment of Act No. 2886,
p. 27, ante.) The doctrine, laid down in these cases,
herein controverted, the Legislature had also amended this
acknowledges the prerogative of personality in the Government
General Orders No. 58 by the enactment of Act No. 2677
of the Philippines, which, if it is sufficient to shield it from any
regarding appeals to the Supreme Court of causes originating in
responsibility in court in its own name unless it consents
the justice of the peace courts and by Act No. 2709 which deals
thereto, it should be also, as sufficiently authoritative in law, to
with the exclusion of accused persons from the information in
give that government the right to prosecute in court in its own
order to be utilized as state's witnesses.
name whomsoever violates within its territory the penal laws in
These amendments repeatedly made by the Philippine force therein.
Commission as well as by our present Legislature are perfectly
However, limiting ourselves to the question relative to the form
within the scope of the powers of the said legislative bodies as
of the complaint in criminal matters, it is within the power of
the successors of the Military Government that promulgated
the Legislature to prescribe the form of the criminal complaint
General Orders No. 58.
as long as the constitutional provision of the accused to be
No proof is required to demonstrate that the present Legislature informed of the nature of the accusation is not violated.
had, and had, the power to enact and amend laws. (U.S. vs. Bull.
Under the Constitution of the United States and by like
15 Phil., 7.) That it has the power to legislate on criminal
provisions in the constitutions of the various states, the accused
matters is very evident from the wording of section 7 of the Jones
is entitled to be informed of the nature and cause of the
Law which says:
accusation against him . . .
That the legislative authority herein provided shall have power,
It is within the power of the legislatures under such a
when not inconsistent with this Act, by due enactment to amend,
constitutional provision to prescribe the form of the indictment
alter, modify, or repeal any law, civil or criminal, continued in
or information, and such form may omit averments regarded as
force by this Act as it may from time to time see fit.
necessary at common law. (22 Cyc., 285.)
It is urged the right to prosecute and punish crimes is an
All these considerations a priori are strengthened a
attributed of sovereignty. This assertion is right; but it is also
posteriori by the important reason disclosed by the following fact
true that by reason of the principle of territoriality as applied in
— that the Congress has tacitly approved Act No. 2886. Both the
the supression, of crimes, such power is delegated to subordinate
Act of Congress of July 1, 1902, section 86, and the Jones Law,
government subdivisions such as territories. As we have seen in
last paragraph of section 19, provide that all the laws enacted
the beginning, the territorial legislatures have the power to
by the Government of the Philippines or its Legislature shall be
define and punish crimes, a power also possessed by the
forwarded to the Congress of the United States, which body
Philippine Legislature by virtue of the provisions of sections 7,
reserves the right and power to annul them. And presuming, as
already quoted, of the Jones Law. These territorial governments
legally we must, that the provisions of these laws have been
are local agencies of the Federal Government, wherein
complied with, it is undisputed that the Congress of the United
sovereignty resides; and when the territorial government of the
States did not annul any of those acts already adverted to —
Philippines prosecutes and punishes public crimes it does so by
Nos. 194, 440, 490 (of the Philippine Commission), and 2677,
virtue of the authority delegated to it by the supreme power of
2709 and the one now in question No. 2886 (of the present
the Nation.
Legislature) — all of which were amendatory of General Orders
This delegation may be made either expressly as in the case of No. 58. The Act now under discussion (No. 2886) took effect on
the several States of the Union and incorporated territories like February 24, 1920, and the criminal complaint in this case was
Porto Rico and Hawaii, or tacitly as is the case with the filed on May 10, 1920. The silence of Congress regarding those
Philippines, which is an organized territory though not laws amendatory of the said General Order must be considered
incorporated with the Union. (Malcolm, Philippine as an act of approval.
Constitutional Law, 181-205.)
If Congress fails to notice or take action on any territorial
This tacit delegation to our Government needs no legislation the reasonable inference is that it approves such act.
demonstration. As a matter of fact, the crimes committed within (26 R.C.L., 679; vide Clinton vs. Englebrcht, 13 Wall., 434; 20 [L.
our territory, even before section 2 of General Orders No. 58 was ed.] 659; Tiaco vs. Forbes, 228 U.S., 549; 33 S. Ct. Rep., 585; 57
amended, were prosecuted and punished in this jurisdiction as [L. ed.], 960; Nixon vs. Reid, 8 S.d., 507; 67 N.W., 57; 32 L.R.A.,
is done at present; but then as now the repression of crimes was 315.)
done, and is still done, under the sovereign authority of the
Furthermore, supposing for the sake of argument, that the
United States, whose name appears as the heading in all
mention of the People of the Philippine Islands as plaintiff in the
pleadings in criminal causes and in other judicial papers and
title of the information constitutes a vice or defect, the same is
notarial acts.
not fatal when, as in the present case, it was not objected to in
The use of such a heading is prescribed for civil cases in form 1 the court below.
of section 784 of the Code of Civil Procedure; in criminal causes
An indictment must, in many states under express statutory or
the constant practice followed in this jurisdiction established its
constitutional provision, show by its title or by proper recitals in
use; and in notarial matters its use is provided by section 127 of
the caption or elsewhere that the prosecution is in the name and
Act No. 496. This long continued practice in criminal matters
by the authority of the state, the commonwealth, or the people
and the legal provision relating to civil cases and notarial acts
of the state, according to the practice in the particular
have not been amended by any law, much less by Act No. 2886,
jurisdictions; but omissions or defects in this respect may be
the subject of the present inquiry.
supplied or cured by other parts of the records, and the
omissions of such a recital or defects therein, even when
required by the constitution or by statute, is a defect of form
within a statute requiring exceptions for defect of form to be
made before trial. (23 Cyc., 237, 238.)
We hold that the provisions of sections 2 of General Orders No.
58, as amended by Act No. 2886, do not partake of the same
character as the provisions of a constitution; that the said Act
No. 2886 is valid and is not violative of any constitutional
provisions and that the court a quo did not commit any of the
errors assigned.
The sentence appealed from is hereby affirmed, the appellant
being furthermore sentenced to the accessory penalties
prescribed in article 61 of the Penal Code, and to indemnify the
heirs of the deceased in the sum of P1,000 and to the payment
of the costs of both instances. So ordered.
Araullo, C.J., Street, Malcolm, Avanceña and Villamor, JJ.,
concur.
Ostrand and Johns, JJ., concur in the result.
EN BANC criminal cause No. 787, United States vs. Antonio Rodrigo and
Maximo Malicsi. An act committed with violation of law.
G.R. No. L-11676 October 17, 1916
The case came to trial and on December 28, 1915, the court
THE UNITED STATES, plaintiff-appellee,
rendered judgment therein sentencing the defendant to the
vs.
penalty of two years' imprisonment, to pay a fine of P100 and, in
ANDRES PABLO, defendant-appellant.
case of insolvency, to the corresponding subsidiary
Alfonso E. Mendoza for appellant. imprisonment, and to pay the costs. The defendant was also
Attorney-General Avanceña for appellee. disqualified from thereafter holding any public office and from
testifying in the courts of the Philippine Islands until the said
disqualification should be removed. From this judgment he
TORRES, J.: appealed.
At about noon of the 21st of October, 1915, Andres Pablo, a Francisco Dato, on testifying as a witness, said that when the
policeman of the municipality of Balanga, went by order of his policemen Andres Pablo and Tomas de Leon arrived at the place
chief to the barrio of Tuyo to raid a jueteng game which, where the jueteng was being played, they found the defendant
according to the information lodged, was being conducted in that gamblers, Malicsi and Rodrigo; that, prior to the hearing of the
place; but before the said officer arrived there the players, case in the justice of the peace court, Malicsi and Rodrigo
perhaps advised of his approach by a spy, left and ran away; ordered him to call Andres Pablo, who, together with witness,
however, on his arrival at a vacant lot the defendant there found went to the house of Valentin Sioson, where they held a
Francisco Dato and, at a short distance away, a low table. After conference; that witness pleaded guilty in the justice of the peace
a search of the premises he also found thereon court, in fulfillment of his part of an agreement made between
a tambiolo (receptacle) and 37 bolas (balls). Notwithstanding himself and his two coaccused, Malicsi and Rodrigo, who
that the officer had seen the men Maximo Malicsi and Antonio promised him that they would support his family during the
Rodrigo leave the said lot, yet, as at first he had seen no material time he might be a prisoner in jail; that Andres Pablo did not
proof that the game was being played, he refrained from know that they were gamblers, because he did not find them in
arresting them, and on leaving the place only arrested Francisco the place where the game was in progress, but that when
Daro, who had remained there. witness was being taken to the municipal building by the
In reporting to his chief what had occurred, the policeman policemen he told them who the gamblers were who had run
presented a memorandum containing the following statement: away and whom Andres Pablo could have seen.
"In the barrio of Tuyo I raided a jueteng na bilat game, seized Maximo Malicsi corroborated the foregoing testimony and
a tambiolo and bolas, and saw the cabecillas Maximo MAlicsi further stated that, on the arrival of the policemen who made
and Antonio Rodrigo and the gambler Francisco Dato. I saw the the arrest and while they were looking for the tambiolo, he
two cabecillas escape." succeeded in escaping; that Andres Pablo had known him for a
In consequence, chief of police Jose D. Reyes, on October 22, long time and could have arrested him had he wished to do so;
1915, filed a complaint in the court of justice of the peace that prior to the hearing he and his codefendants, ROdrigo and
charging the said Rodrigo, Malicsi, and Dato with having Dato, did in fact meet in the house of Valentin Sioson, on which
gambled at jueteng, in violation of municipal ordinance No. 5. occasion they agreed that they would give the policemen Andres
As a result of this complaint the accused were arrested, but were Pablo P20, provided witness and Rodrigo were excluded from the
afterwards admitted to bail. charge; and that only P15 was delivered to the said Pablo,
through Gregorio Ganzon. This statement was corroborated by
At the hearing of the case Francisco Dato pleaded guilty. The the latter, though he said nothing about what amount of money
other two accused, Maximo Malicsi and Antonio Rodrigo, he delivered to the policeman Pablo.
pleaded not guilty; therefore, during the trial the chief of police
presented the memorandum exhibited by the policeman Andres The defendant Andres Pablo testified under oath that, on his
Pablo, who testified under oath that on the date mentioned he being asked by the justice of the peace how he could have seen
and Tomas de Leon went to the said barrio to raid Maximo Malicsi and Antonio Rodrigo, he replied that he did not
a jueteng game, but that before they arrived there they saw from see them at the place where the game was being conducted nor
afar that some persons started to run toward the hills; that when did he see them run away from there, for he only found the table,
witness and his companion arrived at a vacant lot they saw the tambiolo, the bolas, and Francisco Dato; that he did not
Francisco Dato and a low table there, and the table caused them surprise the game because the players ran away before he
to suspect that a jueteng game was being carried on; that in fact arrived on the lot where, after fifteen minutes' search, he found
they did find on one side of the lot a tambiolo and 37 bolas, but only the tambiolo and the bolas; that on arriving at the place
that they did not see the accused Rodrigo and Malicsi on the said where the game was played, they found only Francisco Dato and
lot, nor did they see them run; and that only afterwards did the some women in the Street, and as Dato had already gone away,
witness learn that these latter were the cabecillas or ringleaders witness' companion, the policeman Tomas de Leon, got on his
in the jueteng game, from information given him by an unknown bicycle and went after him; and that he found the tambiolo at a
person. In view of this testimony by the police officer who made distance of about 6 meters from a low table standing on the lot.
the arrest and of the other evidence adduced at the trial the From the facts above related, it is concluded that the defendant
court acquitted the defendants Antonio Rodrigo and Maximo Andres Pablo, who pleaded not guilty, falsely testified under
Malicsi and sentenced only Francisco Dato, as a gambler. oath in the justice of the peace court of Balanga, Bataan, in
Before the case came to trial in the justice of the peace court the saying he had not seen the alleged gamblers Maximo Malicsi
policeman Andres Pablo had an interview and conference with and Antonio Rodrigo in the place where, according to the
the accused Malicsi and ROdrigo in the house of Valentin Sioson. complaint filed, the game of jueteng was being played and where
On this occasion he was instructed not to testify against Malicsi the defendant and his companion, the policeman Tomas de Leon,
and Rodrigo, and in fact received through Gregorio Ganzon the had found a table, tambiolo and bolas, used in the game
sum of P5. of jueteng, while it was proved at the trial that he did not them
and did overtake them while they were still in the place where
By reason of the foregoing and after making a preliminary the game was being played. But notwithstanding his having
investigation the provincial fiscal, on December 1, 1915, filed an seen them there, upon testifying in the cause prosecuted against
information in the Court of First Instance of Bataan charging these men and another for gambling, he stated that he had not
Andres Pablo with the crime of perjury, under the provisions of seen them there, knowing that he was not telling the truth and
section 3 of Act No. 1697. The following is an extract from the was false to the oath he had taken, and he did so willfully and
complaint: deliberately on account of his agreement with the men, Malicsi
That on or about November 6, 1915, in the municipality of and Rodrigo, and in consideration of a bribe of P15 which he had
Balanga, Bataan, P.I., and within the jurisdiction of this court, received in payment for his false testimony he afterwards gave.
the said accused, Andres Pablo, during the hearing in the justice Francisco Dato and Gregorio Ganzon corroborated the assertion
of the peace court of Balanga of the criminal cause No. 787, that the policeman Andres Pablo undertook to exclude the
entitled the United States vs. Antonio Rodrigo and Maximo gamblers, Malicsi and Rodrigo, from the charge and from his
Malicsi, for violation of Municipal Ordinance No. 5 of the testimony in consideration for P15 which he received through
municipality of Balanga, did, willfully, unlawfully and Gregorio Ganzon.
feloniously affirm and swear in legal form before the justice of
the peace court as follow: `We did not there overtake the accused Andres Pablo was charged with the crime of perjury and was
Antonio Rodrigo and Maximo Malicsi, nor did we even see them afterwards convicted under Act No. 1697, which (according to
run,' the said statement being utterly false, as the accused well the principle laid down by this court in various decisions that
knew that it was, and material to the decision of the said are already well-settled rules of law) repealed the provisions
contained in articles 318 to 324 of the Penal Code relative to It is, then, assumed that the said articles of the Penal Code are
false testimony. in force and are properly applicable to crimes of false testimony.
Therefore, in consideration of the fact that in the case at bar the
By the second paragraph of the final section of the last article of
evidence shows it to have been duly proven that the defendant,
the Administrative Code, or Act No. 2657, there was repealed,
Andres Pablo, in testifying in the cause prosecuted for gambling
among the other statutes therein mentioned, the said Act No.
at jueteng, perverted the truth, for the purpose of favoring the
1697 relating to perjury, and the repealing clause of the said
alleged gamblers, Maximo Malicsi and Antonio Rodrigo, with
Administrative Code does not say under what other penal law
the aggravating circumstance of the crime being committed
in force the crime of false testimony, at least, if not that of
through bribery, for it was also proved that the defendant Pablo
perjury, shall be punished.
received P15 in order that he should make no mention of the said
Under these circumstances, may the crime of perjury or of false two gamblers in his sworn testimony, whereby he knowingly
testimony go unpunished, and is there no penal sanction perverted the truth, we hold that, in the commission of the crime
whatever in this country for this crime? May the truth be freely of false testimony, there concurred the aggravating
perverted in testimony given under oath and which, for the very circumstance of price or reward, No. 3 of article 10 of the Code,
reason that it may save a guilty person from punishment, may with no mitigating circumstance to offset the effects of the said
also result in the conviction and punishment of an innocent aggravating one; wherefore the defendant has incurred the
person? If all this is not possible and is not right before the law maximum period of the penalty of arresto mayor in its
and good morals in a society of even mediocre culture, it must be maximum degree to prision correccional in its medium degree,
acknowledged that it is imperatively necessary to punish the and a fine.
crime of perjury or of false testimony — a crime which can
For the foregoing reasons, we hereby reverse the judgment
produce incalculable and far-reaching harm to society and cause
appealed from and sentence Andres Pablo to the penalty of two
infinite disturbance of social order.
years four months and one day of prision correccional, to pay a
The right of prosecution and punishment for a crime is one of fine of 1,000 pesetas, and, in case of insolvency, to suffer the
the attributes that by a natural law belongs to the sovereign corresponding subsidiary imprisonment, which shall not exceed
power instinctively charged by the common will of the members one-third of the principal penalty. He shall also pay the costs of
of society to look after, guard and defend the interests of the both instances. So ordered.
community, the individual and social rights and the liberties of
Johnson, Carson, Trent and Araullo, JJ., concur.
every citizen and the guaranty of the exercise of his rights.
Moreland, J., concurs in the re
The power to punish evildoers has never been attacked or
challenged, as the necessity for its existence has been recognized
even by the most backward peoples. At times the criticism has
been made that certain penalties are cruel, barbarous, and
atrocious; at other, that they are light and inadequate to the
nature and gravity of the offense, but the imposition of
punishment is admitted to be just by the whole human race, and
even barbarians and savages themselves, who are ignorant of all
civilization, are no exception.lawphil.net
Notwithstanding that the said Act No. 1697 (which, as
interpreted by this court in its decisions, was deemed to have
repealed the aforementioned article of the Penal Code relating
to false testimony, comprised within the term of perjury) did not
expressly repeal the said articles of the Penal Code; and as the
said final article of the Administrative Code, in totally repealing
Act No. 1697, does not explicitly provide that the mentioned
articles of the Penal Code are also repealed, the will of the
legislation not being expressly and clearly stated with respect to
the complete or partial repeal of the said articles of the Penal
Code, in the manner that it has totally repealed the said Act No.
1697 relating its perjury; and, furthermore, as it is imperative
that society punish those of its members who are guilty of
perjury or false testimony, and it cannot be conceived that these
crimes should go unpunished or be freely committed without
punishment of any kind, it must be conceded that there must be
in this country some prior, preexistent law that punishes perjury
or false testimony.
There certainly are laws which deal with perjury or false
testimony, like Law 7 et seq. of Title 2, third Partida.
However, since the Penal Code went into force, the crime of false
testimony has been punished under the said articles of the said
Code, which as we have already said, have not been specifically
repealed by the said Act No. 1697, but since its enactment, have
not been applied, by the mere interpretation given to them by
this court in its decisions; yet, from the moment that Act was
repealed by the Administrative Code, the needs of society have
made it necessary that the said articles 318 to 324 should be
deemed to be in force, inasmuch as the Administrative Code, in
repealing the said Act relating to perjury, has not explicitly
provided that the said articles of the Penal Code have likewise
been repealed.
This manner of understanding and construing the statutes
applicable to the crime of false testimony or perjury is in
harmony with the provision of Law 11, Title 2, Book 3, of
the Novisima Recopilacion which says::
All the laws of the kingdom, not expressly repealed by other
subsequent laws, must be literally obeyed and the excuse that
they are not in use cannot avail; for the Catholic kings and their
successors so ordered in numerous laws, and so also have I
ordered on different occasions, and even though they were
repealed, it is seen that they have been revived by the decree
which I issued in conformity with them although they were not
expressly designated. The council will be informed thereof and
will take account of the importance of the matter.