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1. G.R. No.

168539 March 25, 2014

PEOPLE OF THE PHILIPPINES, Petitioner,


vs.
HENRY T. GO, Respondent.

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari assailing the Resolution1 of the Third Division2
of the Sandiganbayan (SB) dated June 2, 2005 which quashed the Information filed against herein
respondent for alleged violation of Section 3 (g) of Republic Act No. 3019 (R.A. 3019), otherwise
known as the Anti-Graft and Corrupt Practices Act.

The Information filed against respondent is an offshoot of this Court's Decision3 in Agan, Jr. v.
Philippine International Air Terminals Co., Inc. which nullified the various contracts awarded by the
Government, through the Department of Transportation and Communications (DOTC), to Philippine
Air Terminals, Co., Inc. (PIATCO) for the construction, operation and maintenance of the Ninoy
Aquino International Airport International Passenger Terminal III (NAIA IPT III). Subsequent to the Commented [1]:
above Decision, a certain Ma. Cecilia L. Pesayco filed a complaint with the Office of the Ombudsman
against several individuals for alleged violation of R.A. 3019. Among those charged was herein
respondent, who was then the Chairman and President of PIATCO, for having supposedly conspired
with then DOTC Secretary Arturo Enrile (Secretary Enrile) in entering into a contract which is grossly
and manifestly disadvantageous to the government. Commented [2]:

On September 16, 2004, the Office of the Deputy Ombudsman for Luzon found probable cause to
indict, among others, herein respondent for violation of Section 3(g) of R.A. 3019. While there was
likewise a finding of probable cause against Secretary Enrile, he was no longer indicted because he
died prior to the issuance of the resolution finding probable cause. Commented [3]:

Thus, in an Information dated January 13, 2005, respondent was charged before the SB as follows:

On or about July 12, 1997, or sometime prior or subsequent thereto, in Pasay City, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the late ARTURO ENRILE, then
Secretary of the Department of Transportation and Communications (DOTC), committing the offense
in relation to his office and taking advantage of the same, in conspiracy with accused, HENRY T.
GO, Chairman and President of the Philippine International Air Terminals, Co., Inc. (PIATCO), did
then and there, willfully, unlawfully and criminally enter into a Concession Agreement, after the
project for the construction of the Ninoy Aquino International Airport International Passenger
Terminal III (NAIA IPT III) was awarded to Paircargo Consortium/PIATCO, which Concession
Agreement substantially amended the draft Concession Agreement covering the construction of the
NAIA IPT III under Republic Act 6957, as amended by Republic Act 7718 (BOT law), specifically the
provision on Public Utility Revenues, as well as the assumption by the government of the liabilities
of PIATCO in the event of the latter's default under Article IV, Section 4.04 (b) and (c) in relation to
Article 1.06 of the Concession Agreement, which terms are more beneficial to PIATCO while
manifestly and grossly disadvantageous to the government of the Republic of the Philippines.4

The case was docketed as Criminal Case No. 28090.

On March 10, 2005, the SB issued an Order, to wit:

The prosecution is given a period of ten (10) days from today within which to show cause why this
case should not be dismissed for lack of jurisdiction over the person of the accused considering that
the accused is a private person and the public official Arturo Enrile, his alleged co-conspirator, is
already deceased, and not an accused in this case.5 Commented [4]:

The prosecution complied with the above Order contending that the SB has already acquired
jurisdiction over the person of respondent by reason of his voluntary appearance, when he filed a
motion for consolidation and when he posted bail. The prosecution also argued that the SB has
exclusive jurisdiction over respondent's case, even if he is a private person, because he was alleged
to have conspired with a public officer.6 Commented [5]:

On April 28, 2005, respondent filed a Motion to Quash7 the Information filed against him on the
ground that the operative facts adduced therein do not constitute an offense under Section 3(g) of
R.A. 3019. Respondent, citing the show cause order of the SB, also contended that, independently
of the deceased Secretary Enrile, the public officer with whom he was alleged to have conspired,
respondent, who is not a public officer nor was capacitated by any official authority as a government
agent, may not be prosecuted for violation of Section 3(g) of R.A. 3019.

The prosecution filed its Opposition.8

On June 2, 2005, the SB issued its assailed Resolution, pertinent portions of which read thus:

Acting on the Motion to Quash filed by accused Henry T. Go dated April 22, 2005, and it appearing
that Henry T. Go, the lone accused in this case is a private person and his alleged co-conspirator-
public official was already deceased long before this case was filed in court, for lack of jurisdiction
over the person of the accused, the Court grants the Motion to Quash and the Information filed in
this case is hereby ordered quashed and dismissed.9 Commented [6]:

Hence, the instant petition raising the following issues, to wit:

ISSUE:

WHETHER OR NOT THE COURT A QUO GRAVELY ERRED AND DECIDED A QUESTION OF
SUBSTANCE IN A MANNER NOT IN ACCORD WITH LAW OR APPLICABLE JURISPRUDENCE
IN GRANTING THE DEMURRER TO EVIDENCE AND IN DISMISSING CRIMINAL CASE NO.
28090 ON THE GROUND THAT IT HAS NO JURISDICTION OVER THE PERSON OF
RESPONDENT GO.

II

WHETHER OR NOT THE COURT A QUO GRAVELY ERRED AND DECIDED A QUESTION OF
SUBSTANCE IN A MANNER NOT IN ACCORD WITH LAW OR APPLICABLE JURISPRUDENCE,
IN RULING THAT IT HAS NO JURISDICTION OVER THE PERSON OF RESPONDENT GO
DESPITE THE IRREFUTABLE FACT THAT HE HAS ALREADY POSTED BAIL FOR HIS
PROVISIONAL LIBERTY

III

WHETHER OR NOT THE COURT A QUO GRAVELY ERRED WHEN, IN COMPLETE DISREGARD
OF THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION, IT QUASHED THE
INFORMATION AND DISMISSED CRIMINAL CASE NO. 2809010

The Court finds the petition meritorious. Commented [7]:

Section 3 (g) of R.A. 3019 provides:


Sec. 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:

xxxx

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the public officer profited or will profit thereby.

The elements of the above provision are:

(1) that the accused is a public officer;

(2) that he entered into a contract or transaction on behalf of the government; and

(3) that such contract or transaction is grossly and manifestly disadvantageous to the government.11

At the outset, it bears to reiterate the settled rule that private persons, when acting in conspiracy with
public officers, may be indicted and, if found guilty, held liable for the pertinent offenses under Section
3 of R.A. 3019, in consonance with the avowed policy of the anti-graft law to repress certain acts of
public officers and private persons alike constituting graft or corrupt practices act or which may lead
thereto.12 This is the controlling doctrine as enunciated by this Court in previous cases, among
which is a case involving herein private respondent.13 Commented [8]:

The only question that needs to be settled in the present petition is whether herein respondent, a
private person, may be indicted for conspiracy in violating Section 3(g) of R.A. 3019 even if the public
officer, with whom he was alleged to have conspired, has died prior to the filing of the Information. Commented [9]:

Respondent contends that by reason of the death of Secretary Enrile, there is no public officer who
was charged in the Information and, as such, prosecution against respondent may not prosper.

The Court is not persuaded.

It is true that by reason of Secretary Enrile's death, there is no longer any public officer with
whom respondent can be charged for violation of R.A. 3019. It does not mean, however, that
the allegation of conspiracy between them can no longer be proved or that their alleged
conspiracy is already expunged. The only thing extinguished by the death of Secretary Enrile
is his criminal liability. His death did not extinguish the crime nor did it remove the basis of
the charge of conspiracy between him and private respondent. Stated differently, the death
of Secretary Enrile does not mean that there was no public officer who allegedly violated
Section 3 (g) of R.A. 3019. In fact, the Office of the Deputy Ombudsman for Luzon found
probable cause to indict Secretary Enrile for infringement of Sections 3 (e) and (g) of R.A.
3019.14 Were it not for his death, he should have been charged. Commented [10]:

The requirement before a private person may be indicted for violation of Section 3(g) of R.A. 3019,
among others, is that such private person must be alleged to have acted in conspiracy with a public
officer. The law, however, does not require that such person must, in all instances, be indicted
together with the public officer. If circumstances exist where the public officer may no longer be
charged in court, as in the present case where the public officer has already died, the private person
may be indicted alone. Commented [11]:

Indeed, it is not necessary to join all alleged co-conspirators in an indictment for conspiracy.15 If two
or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is,
in contemplation of law, the act of each of them and they are jointly responsible therefor.16 This
means that everything said, written or done by any of the conspirators in execution or furtherance of
the common purpose is deemed to have been said, done, or written by each of them and it makes
no difference whether the actual actor is alive or dead, sane or insane at the time of trial.17 The
death of one of two or more conspirators does not prevent the conviction of the survivor or
survivors.18 Thus, this Court held that: Commented [12]:

x x x [a] conspiracy is in its nature a joint offense. One person cannot conspire alone. The crime
depends upon the joint act or intent of two or more persons. Yet, it does not follow that one person
cannot be convicted of conspiracy. So long as the acquittal or death of a co-conspirator does not
remove the bases of a charge for conspiracy, one defendant may be found guilty of the offense.19 Commented [13]:

The Court agrees with petitioner's contention that, as alleged in the Information filed against
respondent, which is deemed hypothetically admitted in the latter's Motion to Quash, he (respondent)
conspired with Secretary Enrile in violating Section 3 (g) of R.A. 3019 and that in conspiracy, the act
of one is the act of all. Hence, the criminal liability incurred by a co-conspirator is also incurred by
the other co-conspirators.

Moreover, the Court agrees with petitioner that the avowed policy of the State and the legislative
intent to repress "acts of public officers and private persons alike, which constitute graft or corrupt
practices,"20 would be frustrated if the death of a public officer would bar the prosecution of a private
person who conspired with such public officer in violating the Anti-Graft Law.

In this regard, this Court's disquisition in the early case of People v. Peralta21 as to the nature of
and the principles governing conspiracy, as construed under Philippine jurisdiction, is instructive, to
wit:

x x x A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. Generally, conspiracy is not a crime except when
the law specifically provides a penalty therefor as in treason, rebellion and sedition. The crime of
conspiracy known to the common law is not an indictable offense in the Philippines. An agreement
to commit a crime is a reprehensible act from the view-point of morality, but as long as the
conspirators do not perform overt acts in furtherance of their malevolent design, the sovereignty of
the State is not outraged and the tranquility of the public remains undisturbed. Commented [14]:

However, when in resolute execution of a common scheme, a felony is committed by two or more
malefactors, the existence of a conspiracy assumes pivotal importance in the determination of the
liability of the perpetrators. In stressing the significance of conspiracy in criminal law, this Court in
U.S. vs. Infante and Barreto opined that Commented [15]:

While it is true that the penalties cannot be imposed for the mere act of conspiring to commit a crime
unless the statute specifically prescribes a penalty therefor, nevertheless the existence of a
conspiracy to commit a crime is in many cases a fact of vital importance, when considered together
with the other evidence of record, in establishing the existence, of the consummated crime and its
commission by the conspirators.

Once an express or implied conspiracy is proved, all of the conspirators are liable as co-principals
regardless of the extent and character of their respective active participation in the commission of
the crime or crimes perpetrated in furtherance of the conspiracy because in contemplation of law the
act of one is the act of all. The foregoing rule is anchored on the sound principle that "when two or
more persons unite to accomplish a criminal object, whether through the physical volition of one, or
all, proceeding severally or collectively, each individual whose evil will actively contributes to the
wrong-doing is in law responsible for the whole, the same as though performed by himself alone."
Although it is axiomatic that no one is liable for acts other than his own, "when two or more persons
agree or conspire to commit a crime, each is responsible for all the acts of the others, done in
furtherance of the agreement or conspiracy." The imposition of collective liability upon the
conspirators is clearly explained in one case where this Court held that x x x it is impossible to
graduate the separate liability of each (conspirator) without taking into consideration the close and
inseparable relation of each of them with the criminal act, for the commission of which they all acted
by common agreement x x x. The crime must therefore in view of the solidarity of the act and intent
which existed between the x x x accused, be regarded as the act of the band or party created by
them, and they are all equally responsible x x x Commented [16]:

Verily, the moment it is established that the malefactors conspired and confederated in the
commission of the felony proved, collective liability of the accused conspirators attaches by reason
of the conspiracy, and the court shall not speculate nor even investigate as to the actual degree of
participation of each of the perpetrators present at the scene of the crime. Of course, as to any Commented [17]:
conspirator who was remote from the situs of aggression, he could be drawn within the enveloping
ambit of the conspiracy if it be proved that through his moral ascendancy over the rest of the
conspirators the latter were moved or impelled to carry out the conspiracy.

In fine, the convergence of the wills of the conspirators in the scheming and execution of the crime
amply justifies the imputation to all of them the act of any one of them. It is in this light that conspiracy
is generally viewed not as a separate indictable offense, but a rule for collectivizing criminal liability.

xxxx

x x x A time-honored rule in the corpus of our jurisprudence is that once conspiracy is proved, all of
the conspirators who acted in furtherance of the common design are liable as co-principals. This rule
of collective criminal liability emanates from the ensnaring nature of conspiracy. The concerted action
of the conspirators in consummating their common purpose is a patent display of their evil
partnership, and for the consequences of such criminal enterprise they must be held solidarily
liable.22 Commented [18]:

This is not to say, however, that private respondent should be found guilty of conspiring with
Secretary Enrile. It is settled that the absence or presence of conspiracy is factual in nature and
involves evidentiary matters.23 Hence, the allegation of conspiracy against respondent is better left
ventilated before the trial court during trial, where respondent can adduce evidence to prove or
disprove its presence.

Respondent claims in his Manifestation and Motion24 as well as in his Urgent Motion to Resolve25
that in a different case, he was likewise indicted before the SB for conspiracy with the late Secretary
Enrile in violating the same Section 3 (g) of R.A. 3019 by allegedly entering into another agreement
(Side Agreement) which is separate from the Concession Agreement subject of the present case.
The case was docketed as Criminal Case No. 28091. Here, the SB, through a Resolution, granted
respondent's motion to quash the Information on the ground that the SB has no jurisdiction over the
person of respondent. The prosecution questioned the said SB Resolution before this Court via a
petition for review on certiorari. The petition was docketed as G.R. No. 168919. In a minute resolution
dated August 31, 2005, this Court denied the petition finding no reversible error on the part of the
SB. This Resolution became final and executory on January 11, 2006. Respondent now argues that
this Court's resolution in G.R. No. 168919 should be applied in the instant case.

The Court does not agree. Respondent should be reminded that prior to this Court's ruling in G.R.
No. 168919, he already posted bail for his provisional liberty. In fact, he even filed a Motion for
Consolidation26 in Criminal Case No. 28091. The Court agrees with petitioner's contention that
private respondent's act of posting bail and filing his Motion for Consolidation vests the SB with
jurisdiction over his person. The rule is well settled that the act of an accused in posting bail or in
filing motions seeking affirmative relief is tantamount to submission of his person to the jurisdiction
of the court.27

Thus, it has been held that:

When a defendant in a criminal case is brought before a competent court by virtue of a warrant of
arrest or otherwise, in order to avoid the submission of his body to the jurisdiction of the court he
must raise the question of the court’s jurisdiction over his person at the very earliest opportunity. If
he gives bail, demurs to the complaint or files any dilatory plea or pleads to the merits, he thereby
gives the court jurisdiction over his person. (State ex rel. John Brown vs. Fitzgerald, 51 Minn., 534)

xxxx

As ruled in La Naval Drug vs. CA [236 SCRA 78, 86]:

"[L]ack of jurisdiction over the person of the defendant may be waived either expressly or impliedly.
When a defendant voluntarily appears, he is deemed to have submitted himself to the jurisdiction of
the court. If he so wishes not to waive this defense, he must do so seasonably by motion for the
purpose of objecting to the jurisdiction of the court; otherwise, he shall be deemed to have submitted
himself to that jurisdiction."

Moreover, "[w]here the appearance is by motion for the purpose of objecting to the jurisdiction of the
court over the person, it must be for the sole and separate purpose of objecting to said jurisdiction.
If the appearance is for any other purpose, the defendant is deemed to have submitted himself to
the jurisdiction of the court. Such an appearance gives the court jurisdiction over the person."

Verily, petitioner’s participation in the proceedings before the Sandiganbayan was not confined to
his opposition to the issuance of a warrant of arrest but also covered other matters which called for
respondent court’s exercise of its jurisdiction. Petitioner may not be heard now to deny said court’s
jurisdiction over him. x x x.28

In the instant case, respondent did not make any special appearance to question the jurisdiction of
the SB over his person prior to his posting of bail and filing his Motion for Consolidation. In fact, his
Motion to Quash the Information in Criminal Case No. 28090 only came after the SB issued an Order
requiring the prosecution to show cause why the case should not be dismissed for lack of jurisdiction
over his person.

As a recapitulation, it would not be amiss to point out that the instant case involves a contract entered
into by public officers representing the government. More importantly, the SB is a special criminal
court which has exclusive original jurisdiction in all cases involving violations of R.A. 3019 committed
by certain public officers, as enumerated in P.D. 1606 as amended by R.A. 8249. This includes
private individuals who are charged as co-principals, accomplices or accessories with the said public
officers. In the instant case, respondent is being charged for violation of Section 3(g) of R.A. 3019,
in conspiracy with then Secretary Enrile. Ideally, under the law, both respondent and Secretary Enrile
should have been charged before and tried jointly by the Sandiganbayan. However, by reason of the
death of the latter, this can no longer be done. Nonetheless, for reasons already discussed, it does
not follow that the SB is already divested of its jurisdiction over the person of and the case involving
herein respondent. To rule otherwise would mean that the power of a court to decide a case would
no longer be based on the law defining its jurisdiction but on other factors, such as the death of one
of the alleged offenders.

Lastly, the issues raised in the present petition involve matters which are mere incidents in the main
case and the main case has already been pending for over nine (9) years. Thus, a referral of the
case to the Regional Trial Court would further delay the resolution of the main case and it would, by
no means, promote respondent's right to a speedy trial and a speedy disposition of his case.
WHEREFORE, the petition is GRANTED. The Resolution of the Sandiganbayan dated June 2, 2005,
granting respondent's Motion to Quash, is hereby REVERSED and SET ASIDE. The Sandiganbayan
is forthwith DIRECTED to proceed with deliberate dispatch in the disposition of Criminal Case No.
28090.

SO ORDERED.

2. SHARICA MARI L. GO-TAN

- versus -

SPOUSES PERFECTO C. TAN


and JUANITA L. TAN,

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing
the Resolution[1] dated March 7, 2005 of the Regional Trial Court (RTC), Branch 94, Quezon City in
Civil Case No. Q-05-54536 and the RTC Resolution[2] dated July 11, 2005 which denied petitioner's
Verified Motion for Reconsideration.

The factual background of the case:

On April 18, 1999, Sharica Mari L. Go-Tan (petitioner) and Steven L. Tan (Steven) were married.[3] Commented [19]:
Out of this union, two female children were born, Kyra Danielle[4] and Kristen Denise.[5] On January
12, 2005, barely six years into the marriage, petitioner filed a Petition with Prayer for the Issuance of
a Temporary Protective Order (TPO)[6] against Steven and her parents-in-law, Spouses Perfecto C.
Tan and Juanita L. Tan (respondents) before the RTC. She alleged that Steven, in conspiracy with
respondents, were causing verbal, psychological and economic abuses upon her in violation of
Section 5, paragraphs (e)(2)(3)(4), (h)(5), and (i)[7] of Republic Act (R.A.) No. 9262,[8] otherwise
known as the Anti-Violence Against Women and Their Children Act of 2004. Commented [20]:

On January 25, 2005, the RTC issued an Order/Notice[9] granting petitioner's prayer for a TPO.

On February 7, 2005, respondents filed a Motion to Dismiss with Opposition to the Issuance of
Permanent Protection Order Ad Cautelam and Comment on the Petition,[10] contending that the
RTC lacked jurisdiction over their persons since, as parents-in-law of the petitioner, they were not
covered by R.A. No. 9262. Commented [21]:

On February 28, 2005, petitioner filed a Comment on Opposition[11] to respondents' Motion to


Dismiss arguing that respondents were covered by R.A. No. 9262 under a liberal interpretation
thereof aimed at promoting the protection and safety of victims of violence.

On March 7, 2005, the RTC issued a Resolution[12] dismissing the case as to respondents on the
ground that, being the parents-in-law of the petitioner, they were not included/covered as
respondents under R.A. No. 9262 under the well-known rule of law expressio unius est exclusio
alterius.[13] Commented [22]:

On March 16, 2005, petitioner filed her Verified Motion for Reconsideration[14] contending that the
doctrine of necessary implication should be applied in the broader interests of substantial justice and
due process.

On April 8, 2005, respondents filed their Comment on the Verified Motion for Reconsideration[15]
arguing that petitioner's liberal construction unduly broadened the provisions of R.A. No. 9262 since
the relationship between the offender and the alleged victim was an essential condition for the
application of R.A. No. 9262.

On July 11, 2005, the RTC issued a Resolution[16] denying petitioner's

Verified Motion for Reconsideration. The RTC reasoned that to include respondents under the
coverage of R.A. No. 9262 would be a strained interpretation of the provisions of the law.

Hence, the present petition on a pure question of law, to wit:

ISSUE:
WHETHER OR NOT RESPONDENTS-SPOUSES PERFECTO & JUANITA, PARENTS-IN-LAW OF
SHARICA, MAY BE INCLUDED IN THE PETITION FOR THE ISSUANCE OF A PROTECTIVE
ORDER, IN ACCORDANCE WITH REPUBLIC ACT NO. 9262, OTHERWISE KNOWN AS THE
ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT OF 2004.[17] Commented [23]:

Petitioner contends that R.A. No. 9262 must be understood in the light of the provisions of Section
47 of R.A. No. 9262 which explicitly provides for the suppletory application of the Revised Penal
Code (RPC) and, accordingly, the provision on conspiracy under Article 8 of the RPC can be
suppletorily applied to R.A. No. 9262; that Steven and respondents had community of design and
purpose in tormenting her by giving her insufficient financial support; harassing and pressuring her
to be ejected from the family home; and in repeatedly abusing her verbally, emotionally, mentally
and physically; that respondents should be included as indispensable or necessary parties for
complete resolution of the case. Commented [24]:

On the other hand, respondents submit that they are not covered by R.A. No. 9262 since Section 3
thereof explicitly provides that the offender should be related to the victim only by marriage, a former
marriage, or a dating or sexual relationship; that allegations on the conspiracy of respondents require
a factual determination which cannot be done by this Court in a petition for review; that respondents
cannot be characterized as indispensable or necessary parties, since their presence in the case is
not only unnecessary but altogether illegal, considering the non-inclusion of in-laws as offenders
under Section 3 of R.A. No. 9262.

The Court rules in favor of the petitioner. Commented [25]:

Section 3 of R.A. No. 9262 defines ''[v]iolence against women and their children'' as any act or a
series of acts committed by any person against a woman who is his wife, former wife, or against a
woman with whom the person has or had a sexual or dating relationship, or with whom he has a
common child, or against her child whether legitimate or illegitimate, within or without the family
abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or
economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary
deprivation of liberty. Commented [26]:

While the said provision provides that the offender be related or connected to the victim by marriage,
former marriage, or a sexual or dating relationship, it does not preclude the application of the principle
of conspiracy under the RPC. Commented [27]:

Indeed, Section 47 of R.A. No. 9262 expressly provides for the suppletory application of the RPC,
thus:
SEC. 47. Suppletory Application. - For purposes of this Act, the Revised Penal Code and other
applicable laws, shall have suppletory application. (Emphasis supplied) Commented [28]:

Parenthetically, Article 10 of the RPC provides:

ART. 10. Offenses not subject to the provisions of this Code. Offenses which are or in the future may
be punishable under special laws are not subject to the provisions of this Code. This Code shall be
supplementary to such laws, unless the latter should specially provide the contrary. (Emphasis
supplied)

Hence, legal principles developed from the Penal Code may be applied in a supplementary capacity
to crimes punished under special laws, such as R.A. No. 9262, in which the special law is silent on
a particular matter.

Thus, in People v. Moreno,[18] the Court applied suppletorily the provision on subsidiary penalty
under Article 39 of the RPC to cases of violations of Act No. 3992, otherwise known as the Revised
Motor Vehicle Law, noting that the special law did not contain any provision that the defendant could
be sentenced with subsidiary imprisonment in case of insolvency.

In People v. Li Wai Cheung,[19] the Court applied suppletorily the rules on the service of sentences
provided in Article 70 of the RPC in favor of the accused who was found guilty of multiple violations
of R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972, considering the lack of
similar rules under the special law.

In People v. Chowdury,[20] the Court applied suppletorily Articles 17, 18 and 19 of the RPC to define
the words principal, accomplices and accessories under R.A. No. 8042, otherwise known as the
Migrant Workers and Overseas Filipinos Act of 1995, because said words were not defined therein,
although the special law referred to the same terms in enumerating the persons liable for the crime
of illegal recruitment.

In Yu v. People,[21] the Court applied suppletorily the provisions on subsidiary imprisonment under
Article 39 of the RPC to Batas Pambansa (B.P.) Blg. 22, otherwise known as the Bouncing Checks
Law, noting the absence of an express provision on subsidiary imprisonment in said special law.

Most recently, in Ladonga v. People,[22] the Court applied suppletorily the principle of conspiracy
under Article 8 of the RPC to B.P. Blg. 22 in the absence of a contrary provision therein.

With more reason, therefore, the principle of conspiracy under Article 8 of the RPC may be applied
suppletorily to R.A. No. 9262 because of the express provision of Section 47 that the RPC shall be
supplementary to said law. Thus, general provisions of the RPC, which by their nature, are
necessarily applicable, may be applied suppletorily. Commented [29]:

Thus, the principle of conspiracy may be applied to R.A. No. 9262. For once conspiracy or action in
concert to achieve a criminal design is shown, the act of one is the act of all the conspirators, and
the precise extent or modality of participation of each of them becomes secondary, since all the
conspirators are principals.[23]

It must be further noted that Section 5 of R.A. No. 9262 expressly recognizes that the acts of violence
against women and their children may be committed by an offender through another, thus:

SEC. 5. Acts of Violence Against Women and Their Children. - The crime of violence against women
and their children is committed through any of the following acts:

xxx

(h) Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms
or causes substantial emotional or psychological distress to the woman or her child. This shall
include, but not be limited to, the following acts:

(1) Stalking or following the woman or her child in public or private places;

(2) Peering in the window or lingering outside the residence of the woman or her child;

(3) Entering or remaining in the dwelling or on the property of the woman or her child against her/his
will;

(4) Destroying the property and personal belongings or inflicting harm to animals or pets of the
woman or her child; and

(5) Engaging in any form of harassment or violence; x x x. (Emphasis supplied)

In addition, the protection order that may be issued for the purpose of preventing further acts of
violence against the woman or her child may include
individuals other than the offending husband, thus:

SEC. 8. Protection Orders. x x x The protection orders that may be issued under this Act shall include
any, some or all of the following reliefs:

(a) Prohibition of the respondent from threatening to commit or committing, personally or through
another, any of the acts mentioned in Section 5 of this Act;

(b) Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise
communicating with the petitioner, directly or indirectly; x x x (Emphasis supplied)

Finally, Section 4 of R.A. No. 9262 calls for a liberal construction of the law, thus:

SEC. 4. Construction. - This Act shall be liberally construed to promote the protection and safety of
victims of violence against women and their children. (Emphasis supplied)

It bears mention that the intent of the statute is the law[24] and that this intent must be effectuated
by the courts. In the present case, the express language of R.A. No. 9262 reflects the intent of the
legislature for liberal construction as will best ensure the attainment of the object of the law according
to its true intent, meaning and spirit - the protection and safety of victims of violence against women
and children.

Thus, contrary to the RTC's pronouncement, the maxim "expressio unios est exclusio alterius finds
no application here. It must be remembered that this maxim is only an ancillary rule of statutory
construction. It is not of universal application. Neither is it conclusive. It should be applied only as a
means of discovering legislative intent which is not otherwise manifest and should not be permitted
to defeat the plainly indicated purpose of the legislature.[25]

The Court notes that petitioner unnecessarily argues at great length on the attendance of
circumstances evidencing the conspiracy or connivance of Steven and respondents to cause verbal,
psychological and economic abuses upon her. However, conspiracy is an evidentiary matter which
should be threshed out in a full-blown trial on the merits and cannot be determined in the present
petition since this Court is not a trier of facts.[26] It is thus premature for petitioner to argue
evidentiary matters since this controversy is centered only on the determination of whether
respondents may be included in a petition under R.A. No. 9262. The presence or absence of
conspiracy can be best passed upon after a trial on the merits.

Considering the Court's ruling that the principle of conspiracy may be applied suppletorily to R.A.
No. 9262, the Court will no longer delve on whether respondents may be considered indispensable
or necessary parties. To do so would be an exercise in superfluity.
WHEREFORE, the instant petition is GRANTED. The assailed Resolutions dated March 7, 2005 and
July 11, 2005 of the Regional Trial Court, Branch 94, Quezon City in Civil Case No. Q-05-54536 are
hereby PARTLY REVERSED and SET ASIDE insofar as the dismissal of the petition against
respondents is concerned. Commented [30]:

SO ORDERED.

3. PEOPLE OF THE PHILIPPINES

MARLON ALBERT DE LEON y HOMO,

Appellant.

G.R. No. 179943

This is an appeal from the Decision[1] of the Court of Appeals (CA), affirming with modification the
Decision[2] of the Regional Trial Court (RTC), Branch 76, San Mateo, Rizal, finding appellant Marlon
Lambert De Leon y Homo guilty beyond reasonable doubt of the crime of robbery with homicide.

The factual and procedural antecedents are as follows:

According to the prosecution, in the early morning, around 2 o'clock of January 7, 2000, Eduardo
Zulueta and Fortunato Lacambra III, both gasoline boys; Julieta Amistoso, cashier; and Edralin
Macahis, security guard; all employees of Energex Gasoline Station, located at Barangay Guinayan,
San Mateo, Rizal, were on duty when a mint green-colored Tamaraw FX arrived for service at the
said gasoline station.[3]

Eduardo Zulueta was the one who attended to the said vehicle. He went to the drivers side in order
to take the key of the vehicle from the driver so that he could open the gas tank. He saw through the
lowered window shield that there were about six to seven persons aboard the vehicle. He proceeded
to fill up P50.00 worth of diesel in the gas tank. After doing this, he returned the key to the driver.
While returning the key, the driver told him that the engine of the vehicle would not start.[4] Eduardo
Zulueta offered to give the vehicle a push. While Eduardo Zulueta and fellow gasoline boy Fortunato
Lacambra III were positioned at the back of the vehicle, ready to push the same, the six male
passengers of the same vehicle, except the driver, alighted and announced a hold-up. They were
armed with a shotgun and .38 caliber pistol.[5]

Fortunato Lacambra III was ordered to lie down,[6] while Eduardo Zulueta was directed to go near
the Car Wash Section.[7] At that instance, guns were poked at them.[8]
Appellant, who guarded Eduardo Zulueta, poked a gun at the latter and took the latter's wallet
containing a pawnshop ticket and P50.00, while the companion of the former, hit the latter on his
nape with a gun.[9] Commented [31]:

Meanwhile, four members of the group went to the cashier's office and took the money worth
P3,000.00.[10] Those four robbers were also the ones who shot Edralin Macahis in the stomach.[11]
Thereafter, the same robbers took Edralin Macahis' service firearm.[12]

After he heard successive gunshots, Eduardo Zulueta saw appellant and his companions
immediately leave the place.[13] The robbers boarded the same vehicle and proceeded toward San
Mateo, Rizal.[14] When the robbers left, Eduardo Zulueta stood up and found Julieta Amistoso, who
told him that the robbers took her bag and jewelry. He also saw that Edralin Macahis had a gunshot
wound in the stomach. He immediately hailed a vehicle which transported the injured Edralin
Macahis to the hospital.[15] Later on, Edralin Macahis died at the hospital due to the gunshot
wound.[16]

The following day, Eduardo Zulueta identified appellant as one of the robbers who poked a gun at
him.[17]

However, according to appellant, from January 4 to 6, 2000, he stayed at the house of his Tita Emma
at Pantok, Binangonan, Rizal, helping the latter in her canteen. On the evening of January 6, at
approximately 9 o'clock, appellant asked permission from his Tita Emma to go to Antipolo. Catherine
Homo, appellant's cousin and the latter's younger brother, accompanied appellant to the terminal.
While waiting for a ride, the vehicle, a Tamaraw FX, of a certain Christian Gersalia, a relative of
appellant and Catherine Homo, passed by. Catherine Homo asked Christian Gersalia if he would
allow appellant to hitch a ride on his vehicle. Christian Gersalia agreed. Aside from Christian
Gersalia, there were other passengers in the said vehicle.[18]

When the vehicle reached Masinag, where appellant was supposed to alight, he was not allowed to
do so; instead, he was asked by the other passengers to join them in their destination. While on the
road, appellant fell asleep. When he woke up, they were in a gasoline station. He then saw Christian
Gersalia and the other passengers conducting a hold-up. He never left the vehicle and was not able
to do anything because he was overwhelmed with fear. After he heard the gunshots, Christian
Gersalia and the other passengers went to the vehicle and proceeded towards Marikina. On their
way, they were followed by policemen who fired at them. The other passengers fired back at the
policemen. It was then that the vehicle hit a wall prompting the other passengers to scamper in
different directions leaving him behind. When the policemen arrived, he was immediately
arrested.[19]
As a result of the above incident, four Informations for Robbery with Homicide were filed against
appellant, Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy
Servantes, an alias Rey, an alias Jonard, an alias Precie, and an alias Renato, which read as:

Criminal Case No. 4747

That on or about the 7th day of January 2000, in the Municipality of San Mateo, Province of Rizal,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring
and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan
Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias Renato whose true
names, identities and present whereabouts are still unknown and still at-large, and conspiring and
mutually helping and assisting one another, while armed with unlicensed firearms and acting as a
band, with intent of gain with aggravating circumstances of treachery, abuse of superior strength and
using disguise, fraud or craft and taking advantage of nighttime, and by means of motor vehicle and
by means of force, violence and intimidation, employed upon ENERGEX GASOLINE STATION,
owned by Regino C. Natividad, and represented by Macario C. Natividad, did then and there willfully,
unlawfully and feloniously rob, steal and carry away its cash earnings worth P3,000.00, to the
damage and prejudice of said Energex Gasoline Station in the aforesaid amount of P3,000.00 and
on the occasion of the said robbery, the above-named accused, while armed with unlicensed
firearms with intent to kill, conspiring and confederating together with Rudy Gersalia, Christian
Gersalia, Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias
Precie and Alias Renato, whose true names, identities and present whereabouts are still unknown
and still at-large, did then and there willfully, unlawfully and feloniously attack, assault and shoot one
EDRALIN MACAHIS, a Security Guard of Energex Gasoline Station, thereby inflicting upon him
gunshot wound on his trunk which directly caused his death.

Contrary to law.

Criminal Case No. 4748

That on or about the 7th day of January 2000 in the Municipality of San Mateo, Province of Rizal,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring
and confederating , together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan
Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias Renato, whose true
names, identities and present whereabouts are still unknown and still at-large and conspiring and
mutually helping and assisting one another, while armed with unlicensed firearms and acting as a
band, with intent of gain, with aggravating circumstances of treachery, abuse of superior strength
and using disguise, fraud or craft and taking advantage of nighttime, and by means of a motor vehicle
and by means of force, violence and intimidation, employed upon the person of JULIETA A.
AMISTOSO, the Cashier of Energex Gasoline Station, did then and there willfully, unlawfully and
feloniously rob, steal and carry away the following, to wit:

a) One (1) ladies ring with sapphire stone valued at P1,500.00

b) One (1) Omac ladies wristwatch valued at P2,000.00


c) Guess black bag valued at P500.00

d) Leather wallet valued at P150.00

e) White T-Shirt valued at P175.00

to her damage and prejudice in the total amount of P4,325.00 and on the occasion of the said
robbery, the above-named accused while armed with unlicensed firearms with intent to kill,
conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela,
Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias Renato,
whose true names, identities and present whereabouts are still unknown and still at-large, did then
and there willfully, unlawfully and feloniously attack, assault and shoot one EDRALIN MACAHIS, a
Security Guard of Energex Gasoline Station, thereby inflicting upon him gunshot wound on his trunk
which directly caused his death.

Contrary to law.

Criminal Case No. 4749

That on or about the 7th day of January 2000, in the Municipality of San Mateo, Province of Rizal,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring
and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan
Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias Renato, whose true
names, identities and present whereabouts are still unknown and still at-large, and conspiring and
mutually helping and assisting one another, while armed with unlicensed firearms and acting as a
band, with intent of gain, with aggravating circumstances of treachery, abuse of superior strength
and using disguise, fraud or craft and taking advantage of nighttime, and by means of a motor vehicle
and by means of force, violence and intimidation, employed upon EDRALIN MACAHIS, a Security
Guard of Energex Gasoline Station, did then and there willfully, unlawfully and feloniously rob, steal,
and carry away his service firearm .12 gauge shotgun with serial number 13265 valued at
P12,000.00 owned by Alert and Quick (A-Q) Security Services Incorporated represented by its
General Manager Alberto T. Quintos to the damage and prejudice of said Alert and Quick (A-Q)
Security Services Incorporated in the aforesaid amount of P12,000.00 and on the occasion of the
said robbery the above-named accused, while armed with unlicensed firearms, with intent to kill
conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela,
Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias Renato,
whose true names, identities and present whereabouts are still unknown and still at-large, did then
and there willfully, unlawfully and feloniously attack, assault and shoot one EDRALIN MACAHIS,
thereby inflicting upon him gunshot wound on his trunk which directly caused his death.

Contrary to law.
Criminal Case No. 4750

That on or about the 7th day of January 2000, in the Municipality of San Mateo, Province of Rizal,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring
and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela, Jonathan
Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias Renato, whose true
names, identities and present whereabouts are still unknown and still at-large and conspiring and
mutually helping and assisting one another, while armed with unlicensed firearms and acting as a
band, with intent of gain, with aggravating circumstances of treachery, abuse of superior strength
and using disguise, fraud or craft and taking advantage of nighttime, and by means of a motor vehicle
and by means of force, violence and intimidation, employed upon the person of EDUARDO
ZULUETA, a gasoline boy of Energex Gasoline Station, did then and there willfully, unlawfully and
feloniously rob, steal and carry away the following to wit:

a) Pawnshop Ticket from M. Lhuiller Pawnshop for one (1) black Citizen men's watch (automatic)
valued at P2,000.00

b) Cash money worth P50.00

to his damage and prejudice in the total amount of P2,050.00 and on the occasion of the said
robbery, the above-named accused, while armed with unlicensed firearms with intent to kill,
conspiring and confederating together with Rudy Gersalia, Christian Gersalia, Dondon Brenvuela,
Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias Jonard, Alias Precie and Alias Renato,
whose true names, identities and present whereabouts are still unknown and still at-large, did then
and there willfully, unlawfully and feloniously attack, assault and shoot one EDRALIN MACAHIS, a
Security Guard of Energex Gasoline Station, thereby inflicting upon him gunshot wound on his trunk
which directly caused his death.

Contrary to law.

Upon arraignment on March 23, 2000, appellant, with the assistance of counsel de parte, entered a
plea of not guilty on all the charges. Thereafter, trial on the merits ensued.

The prosecution presented five witnesses, namely: Macario C. Natividad,[20] then officer-in-charge
of Energex Gasoline Station where the incident took place; Edito Macahis,[21] a cousin of the
deceased security guard Edralin Macahis; Fortunato Lacambra III,[22] a gasoline boy of the same
gas station; Eduardo Zulueta,[23] also a gasoline boy of the same gas station, and Alberto
Quintos,[24] general manager of Alert and Quick Security Services, Inc., where the deceased
security guard was employed.
The defense, on the other hand, presented two witnesses, namely: Catherine Homo,[25] a cousin of
appellant and the appellant[26] himself.

On December 20, 2001, the RTC rendered its Decision[27] convicting appellant beyond reasonable
doubt of all the charges against him, the dispositive portion of which reads:

1. In Criminal Case No. 4747, finding accused Marlon Albert de Leon y Homo guilty beyond
reasonable doubt of the crime of Robbery with Homicide, as defined and penalized under No. 1 of
Art. 294 of the Revised Penal Code, as amended by Sec. 9 of R.A. 7659, in relation to Sec. 1 of P.D.
1866, as further amended by Sec. 1 of R.A. 8294, having acted in conspiracy with other malefactors
who have, to date, remained at-large, and sentencing the said Marlon Albert de Leon y Homo to the
penalty of Death, taking into consideration the use of an unlicensed firearm in the commission of the
crime as an aggravating circumstance; to pay Energex Gasoline Station owned by Regino Natividad
and represented by Macario C. Natividad the amount of P3,000.00 as compensatory damages and
to pay the costs;

2. In Crim. Case No. 4748, finding accused Marlon Albert de Leon y Homo guilty beyond reasonable
doubt of the crime of Robbery with Homicide, as defined and penalized under No. 1 of Art. 294 of
the Revised Penal Code, as amended by Sec. 9 of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as
further amended by Sec. 1 of R.A. 8294, having acted in conspiracy with other malefactors who
have, to date, remained at-large, and sentencing the said Marlon Albert de Leon y Homo to the
penalty of Death, taking into consideration the use of an unlicensed firearm in the commission of the
crime as an aggravating circumstance, and to pay the costs;

3. In Crim. Case No. 4749, finding accused Marlon Albert de Leon y Homo guilty beyond reasonable
ground of the crime of Robbery with Homicide, as defined and penalized under No. 1 of Art. 294 of
the Revised Penal Code, as amended by Sec. 9 of R.A. 7659, in relation to Sec. 1 of P.D. 1866, as
further amended by Sec. 1 of R.A. 8294, having acted in conspiracy with other malefactors who
have, to date, remained at-large, and sentencing the said Marlon Albert de Leon y Homo to the
penalty of Death, taking into consideration the use of an unlicensed firearm in the commission of the
crime as an aggravating circumstance; to indemnify the heirs of Edralin Macahis in the amount of
P50,000.00 as death indemnity; to pay P12,000.00 as compensatory damages for the stolen service
firearm if restitution is no longer possible and P50,000.00 as moral damages, and to pay the costs;

4. In Crim. Case No. 4750, finding accused Marlon Albert de Leon y Homo guilty beyond reasonable
doubt of the crime of Robbery with Homicide, as defined and penalized under No. 1 of Art. 294 of
the Revised Penal Code, as amended by Sec. 9 of R.A 7659, in relation to Sec. 1 of P.D. 1866, as
further amended by Sec. 1 of R.A. 8294, having acted in conspiracy with other malefactors who
have, to date, remained at-large, and sentencing the said Marlon Albert de Leon y Homo to the
penalty of Death, taking into consideration the use of an unlicensed firearm in the commission of the
crime as an aggravating circumstance and to pay Eduardo Zulueta, victim of the robbery, in the
amount of P2,050.00 as compensatory damages for the stolen properties if restitution is no longer
possible and to pay the costs.
As against accused Rudy Gersalia and Christian Gersalia, who have, to date, remained at-large, let
a warrant of arrest be issued against them and let these cases be, in the meantime, sent to the
archives without prejudice to their reinstatement upon apprehension of the said accused.

As against accused Dondon Brenvuela, Jonathan Brenvuela, Pantoy Servantes, Alias Rey, Alias
Jonard, Alias Precie and Alias Renato, whose true names, identities and present whereabouts are
still unknown and are still at-large, let these cases be, in the meantime, sent to the archives without
prejudice to their reinstatement upon the identification and apprehension of the said accused.

SO ORDERED.

The cases were appealed to this Court, however, on September, 21, 2004,[28] in conformity with the
Decision dated July 7, 2004 in G.R. Nos. 147678-87 entitled The People of the Philippines v. Efren
Mateo y Garcia, modifying the pertinent provisions of the Revised Rules of Criminal Procedure, more
particularly Sections 3 and 10 of Rule 125 and any other rule insofar as they provide for direct
appeals from the RTCs to this Court in cases where the penalty imposed is death, reclusion perpetua
or life imprisonment, as well as the Resolution of this Court, en banc dated September 19, 1995, in
Internal Rules of the Supreme Court in cases similarly involving the death penalty, pursuant to the
Court's power to promulgate rules of procedure in all courts under Article VII, Section 5 of the
Constitution, and allowing an intermediate review by the CA before such cases are elevated to this
Court. This Court transferred the cases to the CA for appropriate action and disposition.

The CA, on June 29, 2007,[29] affirmed with modification, the Decision of the RTC, with the
dispositive portion reading:

WHEREFORE, the appealed decision is AFFIRMED with MODIFICATION. Accused Marlon Albert
de Leon y Homo is hereby found guilty beyond reasonable doubt of the crime of Robbery with
Homicide of only one count.

Given the passage of Republic Act 9346 which took effect on 24 June 2006, the penalty imposed
upon Marlon de Leon y Homo is hereby reduced or commuted to reclusion perpetua.

SO ORDERED.

On December 10, 2007, this Court accepted the appeal,[30] the penalty imposed being reclusion
perpetua.
The Office of the Solicitor General (OSG), on February 8, 2008, filed its Manifestation and Motion In
Lieu of the Supplemental Brief[31] dated February 4, 2008 stating that it will no longer file a
supplemental brief, considering that appellant has not raised any new issue that would require the
filing of a supplemental brief.

Appellant filed a Manifestation[32] on February 22, 2008 stating that he re-pleads and adopts his
Appellant's Brief and Reply Brief as Supplemental Brief.

Appellant, in his Brief,[33] assigned the following errors:

THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT A CO-


CONSPIRATOR IN THE COMMISSION OF THE CRIME CHARGED DESPITE THE FAILURE OF
THE PROSECUTION TO PROVE THE SAME AND GUILT BEYOND REASONABLE DOUBT. Commented [32]:

II

ON THE ASSUMPTION THAT ACCUSED-APPELLANT IS GUILTY OF ROBBERY WITH


HOMICIDE, THE TRIAL COURT GRAVELY ERRED IN IMPOSING FOUR (4) DEATH PENALTIES
DESPITE THAT THE CRIME CHARGED WAS PRODUCED BY ONE SINGLE ACT WHICH
SHOULD BE METED WITH A SINGLE PENALTY.

The OSG, in its Appellee's Brief,[34] insisted that all the elements of the crime and the appellant's
participation in the crime had been established.

Appellant, in his Reply Brief,[35] argued that the penalty should not be death, but only reclusion
perpetua, because the aggravating circumstance of use of unlicensed firearm, although alleged in
the Information, was not alleged with specificity.

Article 294, paragraph 1 of the Revised Penal Code provides:

Art. 294. Robbery with violence against or intimidation of persons Penalties. - Any person guilty of
robbery with the use of violence against or any person shall suffer:
1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the
crime of homicide shall have been committed, or when the robbery shall have been accompanied
by rape or intentional mutilation or arson.

In People v. De Jesus,[36] this Court had exhaustively discussed the crime of robbery with homicide,
thus:

For the accused to be convicted of the said crime, the prosecution is burdened to prove the
confluence of the following elements:

(1) the taking of personal property is committed with violence or intimidation against persons;

(2) the property taken belongs to another;

(3) the taking is animo lucrandi; and

(4) by reason of the robbery or on the occasion thereof, homicide is committed.[37]

In robbery with homicide, the original criminal design of the malefactor is to commit robbery, with
homicide perpetrated on the occasion or by reason of the robbery.[38] The intent to commit robbery
must precede the taking of human life.[39] The homicide may take place before, during or after the
robbery. It is only the result obtained, without reference or distinction as to the circumstances, causes
or modes or persons intervening in the commission of the crime that has to be taken into
consideration.[40] There is no such felony of robbery with homicide through reckless imprudence or
simple negligence. The constitutive elements of the crime, namely, robbery with homicide, must be
consummated.

It is immaterial that the death would supervene by mere accident; or that the victim of homicide is
other than the victim of robbery, or that two or more persons are killed, or that aside from the
homicide, rape, intentional mutilation, or usurpation of authority, is committed by reason or on the
occasion of the crime. Likewise immaterial is the fact that the victim of homicide is one of the robbers;
the felony would still be robbery with homicide. Once a homicide is committed by or on the occasion
of the robbery, the felony committed is robbery with homicide. All the felonies committed by reason
of or on the occasion of the robbery are integrated into one and indivisible felony of robbery with
homicide. The word homicide is used in its generic sense. Homicide, thus, includes murder,
parricide, and infanticide.

Intent to rob is an internal act, but may be inferred from proof of violent unlawful taking of personal
property. When the fact of asportation has been established beyond reasonable doubt, conviction of
the accused is justified even if the property subject of the robbery is not presented in court. After all,
the property stolen may have been abandoned or thrown away and destroyed by the robber or
recovered by the owner.[41] The prosecution is not burdened to prove the actual value of the property
stolen or amount stolen from the victim. Whether the robber knew the actual amount in the
possession of the victim is of no moment, because the motive for robbery can exist regardless of the
exact amount or value involved.[42]
When homicide is committed by reason or on the occasion of robbery, all those who took part as
principals in the robbery would also be held liable as principals of the single and indivisible felony of
robbery with homicide, although they did not actually take part in the killing, unless it clearly appears
that they endeavored to prevent the same.[43] Commented [33]:

If a robber tries to prevent the commission of homicide after the commission of the robbery, he is
guilty only of robbery and not of robbery with homicide. All those who conspire to commit robbery
with homicide are guilty as principals of such crime, although not all profited and gained from the
robbery. One who joins a criminal conspiracy adopts the criminal designs of his co-conspirators and
can no longer repudiate the conspiracy once it has materialized.[44]

Homicide is said to have been committed by reason or on the occasion of robbery if, for instance, it
was committed (a) to facilitate the robbery or the escape of the culprit; (b) to preserve the possession
by the culprit of the loot; (c) to prevent discovery of the commission of the robbery; or, (d) to eliminate
witnesses in the commission of the crime. As long as there is a nexus between the robbery and the
homicide, the latter crime may be committed in a place other than the situs of the robbery.

From the above disquisition, the testimonies of the witnesses, and pieces of evidence presented by
the prosecution, the crime of robbery with homicide was indeed committed. There was no mistaking
from the actions of all the accused that their main intention was to rob the gasoline station and that
on occasion of such robbery, a homicide was committed. The question now is whether there was
conspiracy in the commission of the crime. According to appellant, the prosecution failed to prove
that he was a co-conspirator. However, this Court finds no merit to appellant's argument.

If it is proved that two or more persons aimed by their acts towards the accomplishment of the same
unlawful object, each doing a part so that their combined acts, though apparently independent, were
in fact connected and cooperative, indicating a closeness of personal association and a concurrence
of sentiment, a conspiracy may be inferred though no actual meeting among them to concert means
is proved. That would be termed an implied conspiracy.[45] The prosecution was able to prove the
presence of an implied conspiracy. The witnesses were able to narrate in a convincing manner, the
circumstances surrounding the commission of the robbery and positively identified appellant as one
of the robbers. Witness Eduardo Zulueta testified that appellant was one of the robbers who poked
a gun at him, thus:

Q. Were you able to identify those two armed male persons who poked their guns at you?

A: Yes, sir.
Q: Kindly look around inside this courtroom and inform the Hon. Court whether those two (2) persons
who poked their guns at you were (sic) present now?

A: Only one, sir, and there he is.

(At this juncture, witness pointing to a certain person who answered by the name of MARLON
ALBERT DE LEON when asked.)

Q: This Marlon De Leon was he the one who guarded you in the carwash or not?

A: Yes, sir.

Q: Now, what happened to you at the carwash where this Marlon De Leon was guarding you?

A: His gun was poked at me, sir.

Q: What else transpired, Mr. Witness, or what else happened to you aside from that?

A: He hit me with his gun on my nape, sir.

Q: What else, Mr. Witness?

A: He got my wallet from my pocket, sir.

Q: Who hit you with a gun?

A: His other companion, sir.[46]

Appellant was also identified by witness Fortunato Lacambra III, thus:


Q: What about that person who ordered Zulueta to go to the carwash section and hit him, was he
also armed?

A: Yes, sir.

Q: What kind of firearm was he carrying then?

A: Also .38 caliber, sir.

Q: Were you able to identify or recognize that person who approached and ordered Zulueta to go to
the carwash section?

A: Yes, sir.

Q: If that person is inside the courtroom, will you be able to identify him?

A: Yes, sir.

Q: Kindly point to him?

A: That man, sir. (Witness pointed to a person who answered by the name of Marlon Albert de
Leon).[47]

Therefore, it can be inferred from the role appellant played in the commission of the robbery, that a
conspiracy existed and he was part of it. To be a conspirator, one need not participate in every detail
of the execution; he need not even take part in every act or need not even know the exact part to be
performed by the others in the execution of the conspiracy. Each conspirator may be assigned
separate and different tasks which may appear unrelated to one another but, in fact, constitute a
whole collective effort to achieve their common criminal objective.[48] Once conspiracy is shown,
the act of one is the act of all the conspirators. The precise extent or modality of participation of each
of them becomes secondary,[49] since all the conspirators are principals. Commented [34]:

As to the credibility of the witnesses, the RTC's findings must not be disturbed. The well-settled rule
in this jurisdiction is that the trial courts findings on the credibility of witnesses are entitled to the
highest degree of respect and will not be disturbed on appeal without any clear showing that it
overlooked, misunderstood or misapplied some facts or circumstances of weight or substance which
could affect the result of the case.[50]

For his defense, appellant merely denied participating in the robbery. However, his presence during
the commission of the crime was well-established as appellant himself testified as to the matter.
Granting that he was merely present during the robbery, his inaction does not exculpate him. To
exempt himself from criminal liability, a conspirator must have performed an overt act to dissociate
or detach himself from the conspiracy to commit the felony and prevent the commission thereof.[51]
Appellant offered no evidence that he performed an overt act neither to escape from the company
of the robbers nor to prevent the robbery from taking place. His denial, therefore, is of no value.
Courts generally view the defenses of denial and alibi with disfavor on account of the facility with
which an accused can concoct them to suit his defense. As both evidence are negative and self-
serving, they cannot attain more credibility than the testimonies of prosecution witnesses who testify
clearly, providing thereby positive evidence on the various aspects of the crime committed.[52] Commented [35]:

Consequently, the CA was correct in ruling that appellant was guilty only of one count of robbery
with homicide. In the crime of robbery with homicide, there are series of acts, borne from one criminal
resolution, which is to rob. As decided[53] by the Court of Appeals:

A continued (continuous or continuing) crime is defined as a single crime, consisting of a series of


acts but all arising from one criminal resolution.[54] Although there is a series of acts, there is only
one crime committed; hence, only one penalty shall be imposed.[55]

In the case before Us, [appellant] and his companions intended only to rob one place; and that is the
Energex gasoline station. That they did; and in the process, also took away by force the money and
valuables of the employees working in said gasoline station. Clearly inferred from these
circumstances are the series of acts which were borne from one criminal resolution. A continuing
offense is a continuous, unlawful act or series of acts set on foot by a single impulse and operated
by an unintermittent force, however long a time it may occupy.[56] This can be said of the case at
hand.

Akin to the extant case is that of People v. De la Cruz,[57] wherein the robbery that took place in
several houses belonging to different persons, when not absolutely unconnected, was held not to be
taken as separate and distinct offenses. They formed instead, component parts of the general plan
to despoil all those within the vicinity. In this case, the Solicitor General argued that the [appellant]
had committed eight different robberies, because the evidence shows distinct and different acts of
spoilation in different houses, with several victimized persons.[58] The Highest Tribunal, however,
ruled that the perpetrated acts were not entirely distinct and unconnected from one another.[59]
Thus, the single offense or crime.

Now, this Court comes to the penalty imposed by the CA. The decision[60] merely states that, in
view of the enactment of R.A. 9346, the sentence of Death Penalty, imposed upon appellant, is
automatically commuted to reclusion perpetua, but is silent as to how it had arrived into such a
conclusion.

Under Article 294 of the Revised Penal Code, as amended by R.A. No. 7659, robbery with homicide
is punishable by reclusion perpetua to death, which are both indivisible penalties. Article 63 of the
same Code provides that, in all cases in which the law prescribes a penalty composed of two
indivisible penalties, the greater penalty shall be applied when the commission of the deed is
attended by one aggravating circumstance.[61] It must be remembered that the Informations filed
with the RTC alleged the aggravating circumstance of the use of unlicensed firearm. Pursuant to the
third paragraph of Section 1 of P.D. No. 1866, as amended by R.A. No. 8294, such use of an
unlicensed firearm is a special and not a generic aggravating circumstance in the homicide or murder
committed. As explained by this Court in Palaganas v. People:[62]

Generic aggravating circumstances are those that generally apply to all crimes such as those
mentioned in Article 14, paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the Revised
Penal Code. It has the effect of increasing the penalty for the crime to its maximum period, but it
cannot increase the same to the next higher degree. It must always be alleged and charged in the
information, and must be proven during the trial in order to be appreciated.[63] Moreover, it can be
offset by an ordinary mitigating circumstance.

On the other hand, special aggravating circumstances are those which arise under special conditions
to increase the penalty for the offense to its maximum period, but the same cannot increase the
penalty to the next higher degree. Examples are quasi-recidivism under Article 160 and complex
crimes under Article 48 of the Revised Penal Code. It does not change the character of the offense
charged.[64] It must always be alleged and charged in the information, and must be proven during
the trial in order to be appreciated.[65] Moreover, it cannot be offset by an ordinary mitigating
circumstance.

It is clear from the foregoing that the meaning and effect of generic and special aggravating
circumstances are exactly the same except that in case of generic aggravating, the same CAN be
offset by an ordinary mitigating circumstance whereas in the case of special aggravating
circumstance, it CANNOT be offset by an ordinary mitigating circumstance.

Aside from the aggravating circumstances abovementioned, there is also an aggravating


circumstance provided for under Presidential Decree No. 1866,[66] as amended by Republic Act No.
8294,[67] which is a special law. Its pertinent provision states:
If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed
firearm shall be considered as an aggravating circumstance.

In interpreting the same provision, the trial court reasoned that such provision is silent as to whether
it is generic or qualifying.[68] Thus, it ruled that when the law is silent, the same must be interpreted
in favor of the accused.[69] Since a generic aggravating circumstance is more favorable to petitioner
compared to a qualifying aggravating circumstance, as the latter changes the nature of the crime
and increase the penalty thereof by degrees, the trial court proceeded to declare that the use of an
unlicensed firearm by the petitioner is to be considered only as a generic aggravating
circumstance.[70] This interpretation is erroneous, since we already held in several cases that with
the passage of Republic Act No. 8294 on 6 June 1997, the use of an unlicensed firearm in murder
or homicide is now considered as a SPECIAL aggravating circumstance and not a generic
aggravating circumstance.[71] Republic Act No. 8294 applies to the instant case since it took effect
before the commission of the crimes in 21 April 1998. Therefore, the use of an unlicensed firearm
by the petitioner in the instant case should be designated and appreciated as a SPECIAL
aggravating circumstance and not merely a generic aggravating circumstance.

In another case,[72] this Court ruled that, the existence of the firearm can be established by
testimony, even without the presentation of the firearm.[73] In the said case, it was established that
Elmer and Marcelina Hidalgo died of, and Pedro Hidalgo sustained, gunshot wounds. The ballistic
examination of the slugs recovered from the place of the incident showed that they were fired from
a .30 carbine rifle and a .38 caliber firearm. The prosecution witnesses positively identified appellant
therein as one of those who were holding a long firearm. It was also established that the same
appellant was not a licensed firearm holder. Hence, this Court ruled that the trial court and the CA
correctly appreciated the use of unlicensed firearm as an aggravating circumstance.

After a careful study of the records of the present case, this Court found that the use of unlicensed
firearm was not duly proven by the prosecution. Although jurisprudence dictates that the existence
of the firearm can be established by mere testimony, the fact that appellant was not a licensed firearm
holder must still be established. The prosecution failed to present written or testimonial evidence to
prove that appellant did not have a license to carry or own a firearm, hence, the use of unlicensed
firearm as an aggravating circumstance cannot be appreciated.

Finally, it is worth noting that the RTC ordered appellant to indemnify the heirs of Edralin Macahis
the amount of P50,000.00 as death indemnity, P12,000.00 as compensatory damages for the stolen
service firearm if restitution is no longer possible and P50,000.00 as moral damages. Actual
damages were never proven during the trial. Hence, this Court's rulings[74] on temperate damages
apply, thus:

In People vs. Abrazaldo,[75] we laid down the doctrine that where the amount of actual damages for
funeral expenses cannot be determined because of the absence of receipts to prove them,
temperate damages may be awarded in the amount of P25,000[76] This doctrine specifically refers
to a situation where no evidence at all of funeral expenses was presented in the trial court. However,
in instances where actual expenses amounting to less than P25,000 are proved during the trial, as
in the case at bar, we apply the ruling in the more recent case of People vs. Villanueva[77] which
modified the Abrazaldo doctrine. In Villanueva, we held that when actual damages proven by receipts
during the trial amount to less than P25,000, the award of temperate damages for P25,000 is justified
in lieu of the actual damages of a lesser amount. To rule otherwise would be anomalous and unfair
because the victims heirs who tried but succeeded in proving actual damages of an amount less
than P25,000 would be in a worse situation than those who might have presented no receipts at all
but would now be entitled to P25,000 temperate damages.[78]

WHEREFORE, the Decision dated June 29, 2007 of the Court of Appeals is hereby AFFIRMED with
MODIFICATION. Appellant Marlon Albert de Leon y Homo is hereby found guilty beyond reasonable
doubt of the crime of Robbery with Homicide, the penalty of which, is reclusion perpetua in view of
the absence of any mitigating or aggravating circumstance. Appellant is also liable to pay the heirs
of the victim, P25,000.00 as temperate damages, in addition to the other civil indemnities and
damages adjudged by the Regional Trial Court, Branch 76, San Mateo, Rizal.

SO ORDERED.

4. PEOPLE OF THE PHILIPPINES,


-versus-
CHARLIE BUTIONG,

This case involves a man who had sexual intercourse with a woman who, although 29 years of age,
was a mental retardate with the mentality of a six- to seven-year old. Commented [36]:

The man, Charlie Butiong, seeks the review and reversal of the judgment promulgated on May 18,
2005,[1] whereby the Court of Appeals (CA) affirmed his conviction for rape handed down by the
Regional Trial Court (RTC), Branch 258, in Paraaque City, for which he was imposed reclusion
perpetua. He insists that the State did not duly establish that the woman had been a mental retardate.

The records show that Butiong had been arraigned and tried under an information that alleged:

xxxx

That on or about the 7th day of October 1998, in the City of Paraaque, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully
and feloniously have carnal knowledge of the complainant [AAA], a mental retardate, against her will
and consent.

CONTRARY TO LAW.[2]

Antecedents
In the evening of October 7, 1998, AAA,[3] then a 29-year-old mental retardate, was invited by
Butiong, her long-time neighbor, to go over to his house because he would give her something. AAA Commented [37]:
obliged. He locked the door as soon as she had stepped inside his house, and then took off his
shorts and the shorts of AAA. He led her to the sofa, where he had carnal knowledge of her. AAA
remembered that she then felt pain in her abdomen and became angry at him for what he had
done.[4] Commented [38]:

Upon reaching home, AAA forthwith told her older sister what had happened. Her sister brought AAA
to the police station,[5] and later on to the National Bureau of Investigation (NBI), where AAA
underwent a medico-legal examination by Dr. Armie M. Soreta-Umil. The medico-legal examination
revealed that AAAs hymen was intact but distensible and its orifice wide (2.5 cms. in diameter) as to
allow complete penetration by an average-sized adult Filipino male organ in full erection without
producing any genital injury.[6] Noticing AAAs disorientation and incoherence, Dr. Soreta-Umil
endorsed her to the NBI Psychiatric Section for evaluation.[7] AAA also underwent a series of
psychological tests at the National Mental Hospital. The tests included the Ravens Progressive
Matrices Test, Bender Visual Motor Gestalt Test, and Draw a Person Test. A Rorschach Psycho-
Diagnostic Test was not used because AAA was not able to answer.[8] Another test, the Sacks
Sentence Completion Test, was not used because of AAAs inability to comply with the
instructions.[9] The results of the psychological tests showed that she had a mild level of mental
retardation, and that her mental age was that of a child aged from six to seven years; she was
unaware of what went on around her and was interested only in gratifying her own needs.[10] Commented [39]:

The Defense presented only one witness in the person of Dr. Natividad Dayan, whom it offered as
an expert psychologist. She concluded that the Ravens Progressive Matrices Test and the Bender
Visual Motor Gestalt Test administered on AAA were unreliable for determining the existence of
mental retardation. She based her conclusion on James Morizons DSM-4 Made Easy: The Clinicians
Guide for Diagnosis, and Jay Siskins Coping With Psychiatric and Psychological Testimony.[11]
According to her, an individually administered intelligence test, like the Stamp Intelligence Scale or
the Weschler Adult Intelligence Scale, as well as projective techniques, like the Rorschach
Psychodiagnostic Test and the Thematic Perception Test, should have been instead administered
to appropriately determine AAAs mental age.[12]

Ruling of the RTC

The RTC rendered judgment finding Butiong guilty of rape, viz: Commented [40]:

WHEREFORE, the prosecution having been able to prove the guilt of the accused CHARLIE
BUTIONG beyond reasonable doubt of the crime of simple RAPE defined and punishable under Art.
266-A par. 1 in relation to Art. 266-B par. 1 of the Revised Penal Code as amended by R.A. 8353,
accused CHARLIE BUTIONG is hereby sentenced to suffer the penalty of RECLUSION PERPETUA. Commented [41]:

Pursuant to the existing jurisprudence, accused CHARLIE BUTIONG is further ordered to indemnify
the private complainant, AAA, the amount of P50,000.00 as civil indemnity, P50,000.00 as moral
damages and P25,000.00 as and by way of exemplary damages.

No pronouncement as to costs.

SO ORDERED.[13]

The RTC noted that nothing in Dr. Dayans testimony on the unreliability of the tests administered on
AAA would invalidate the findings of psychologist Nimia de Guzman and Dr. Diana de Castro, both
of the National Center for Mental Health, to the effect that AAA had mild level retardation with a
mental age of a six- to seven-year old person; and that such findings were admissible and had more
than sufficiently complied with the required historical and physical examination for determining AAAs
mental condition. The trial judge himself held,[14] based on his personal observation of AAA as a
witness in court, that she was a retardate who could narrate what had transpired albeit with some
difficulty about how she had been sexually abused. He considered AAA as a competent witness
whose behavior and appearance manifested no possibility for her to concoct a story of her defloration
at the hands of the accused.

Ruling of the CA

Butiong appealed, but the CA affirmed the conviction on May 18, 2005,[15] to wit: Commented [42]:

In sum, the Court sees no cogent reason to depart from the well-entrenched doctrine that the trial
courts assessment of the credibility of witnesses is accorded great respect because of its opportunity
to hear their testimonies and observe their demeanor and manner of testifying. Absent any showing
that the trial court overlooked or misappreciated some facts or circumstances of weight and
substance which would affect the result of the case, the Court sees no reason to alter the findings of
the trial court.

WHEREFORE, the appealed Decision dated February 24, 2003 is affirmed in toto.
SO ORDERED.

The CA considered the States evidence sufficient to support the conclusion that AAA was mentally
retarded. It concluded that the States expert witness psychologist de Guzman had not only
interviewed AAA and a relative of AAA but had also administered a series of tests on AAA upon
which to base her findings about AAAs mental condition; that the results of the psychiatric
examination done by Dr. de Castro, as well as the trial judges personal observation that AAA was a
mental retardate supported the findings of psychologist de Guzman; and that AAA could not legally
give her consent to the sexual act, as held in People v. Asturias,[16] because the clinical findings
showed her mentality to be at par with that of a six- or seven-year-old.

The CA rejected Butiongs argument that rape was not established because no semen had been
taken from AAA, stressing that the fact of rape depended not on the presence of spermatozoa but
on the fact of unlawful penetration of the female genitalia by the male organ, which the State amply
proved.

Issues

In this appeal, Butiong submits that:

THE TRIAL COURT ERRED IN RULING THAT PROOF OF THE DATE OF THE COMMISSION OF
THE OFFENSE IS NOT NECESSARY IN ORDER TO CONVICT THE ACCUSED-APPELLANT.

II

THE TRIAL COURT ERRED IN FINDING THAT THE OFFENDED PARTY IS A MENTAL
RETARDATE.

Commented [43]:

III

THE TRIAL COURT ERRED IN RULING THAT A MENTAL RETARDATE IS IN THE SAME CLASS
AS A WOMAN DEPRIVED OF REASON OR OTHERWISE UNCONSCIOUS.

Anent the first assigned error, Butiong contends that the State did not establish rape because there
was no evidence showing the exact date when the rape occurred. Under the second assigned error,
he disputes the RTCs conclusion that AAA was a mental retardate by focusing on the
inconclusiveness of the findings of psychologist de Guzman brought about by her failure to ascertain
AAAs personal history and by her computing AAAs mental age upon inaccurate and unverified
information. He notes that two other physicians who had examined AAA, one from the NBI and the
other from the National Center for Mental Health, were not presented as witnesses. He insists on his
innocence, and emphasizes the testimony of Dr. Dayan on the unreliability of the tests administered
on AAA. He maintains that the unreliability of the tests administered on AAA for determining the
presence of mental retardation should be appreciated in his favor in accordance with People v.
Cartuano, Jr.,[17] which required that a diagnosis of mental retardation should be made after a
thorough evaluation based on history, and physical and laboratory examinations by a clinician.
Lastly, he posits that the State did not establish the elements of rape, considering that a mental
retardate qualified neither as a woman deprived of reason nor as a woman under twelve years of
age as provided under Article 266-A par. 1(b) nor of par. 1(d) of the Revised Penal Code.

Ruling

We affirm the conviction.

Exact date of rape and absence of spermatozoa

from victims genitalia are not elements of rape

Butiong argues that the State did not duly establish the fact of rape because the exact date of the
incident was indeterminate, and because no spermatozoa was found in AAAs genital organ.

The argument deserves no consideration.

The CA fully debunked the argument on the exact date of the rape not being established by simply
quoting from AAAs testimony that the rape had occurred on October 7, 1998.[18] We need to
emphasize, however, that the date of the rape need not be precisely proved considering that date is
not an element of rape.[19]

Nor did the absence of spermatozoa from the genitalia of AAA negate or disprove the rape.[20] The
basic element of rape is carnal knowledge or sexual intercourse, not ejaculation.[21] Carnal
knowledge is defined as the act of a man having sexual bodily connections with a woman.[22] This
explains why the slightest penetration of the female genitalia consummates the rape. As such, a
mere touching of the external genitalia by the penis capable of consummating the sexual act already
constitutes consummated rape.[23] People v. Campuhan[24] has aimed to remove any confusion as
to the extent of touching in rape:

[T]ouching when applied to rape cases does not simply mean mere epidermal contact, stroking or
grazing of organs, a slight brush or a scrape of the penis on the external layer of the victims vagina,
or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis
indeed touched the labias or slid into the female organ, and not merely stroked the external surface
thereof, for an accused to be convicted of consummated rape. As the labias, which are required to
be touched by the penis, are by their natural situs or location beneath the mons pubis or the vaginal
surface, to touch them with the penis is to attain some degree of penetration beneath the surface,
hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes
consummated rape.

The pudendum or vulva is the collective term for the female genital organs that are visible in the
perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice,
etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly
visible within the surface. The next layer is the labia majora or the outer lips of the female organ
composed of the outer convex surface and the inner surface. The skin of the outer convex surface
is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not
have any hair but has many sebaceous glands. Directly beneath the labia majora is the labia minora.
Jurisprudence dictates that the labia majora must be entered for rape to be consummated, and not
merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the
female organ or touching the mons pubis of the pudendum is not sufficient to constitute
consummated rape. Absent any showing of the slightest penetration of the female organ, i.e.,
touching of either labia of the pudendum by the penis, there can be no consummated rape; at most,
it can only be attempted rape, if not acts of lasciviousness.[25] [emphasis supplied]

That AAAs recollection on the rape was corroborated by the results of the medico-legal examination
was sufficient proof of the consummation of rape. We have ruled that rape can be established by the
sole testimony of the victim that is credible and untainted with serious uncertainty.[26] With more
reason is this true when the medical findings supported the testimony of the victim,[27] like herein.

II

Rape was committed because AAA

was a mental retardate

One of Butiongs contentions is that having sexual intercourse with AAA, a mental retardate, did not
amount to a rape, because it could not be considered as carnal knowledge of a woman deprived of
reason or of a female under twelve years of age as provided under Article 266-A of the Revised
Penal Code, as amended.

The contention cannot be sustained.


Commented [44]:

Rape is essentially a crime committed through force or intimidation, that is, against the will of the
female. It is also committed without force or intimidation when carnal knowledge of a female is
alleged and shown to be without her consent. This understanding of the commission of rape has Commented [45]:
been prevalent in both the common law and the statutory law systems. As Corpus Juris Secundum
has summed up:[28]

At common law rape could be committed only where the unlawful carnal knowledge of a
female was had without her consent or against her will; lack of consent was an essential
element of the offense; and there can be no rape in the common-law sense without the
element of lack of consent. Under the statutes punishing the offense, an essential element of
the crime of rape is that the act was committed without the consent of the female, or, as it is
otherwise expressed, against her will. The act of sexual intercourse is against the females
will or without her consent when, for any cause, she is not in a position to exercise any
judgment about the matter. Commented [46]:

Carnal knowledge of the female with her consent is not rape, provided she is above the age of
consent or is capable in the eyes of the law of giving consent. Thus, mere copulation, with the woman Commented [47]:
passively acquiescent, does not constitute rape. The female must not at any time consent; her
consent, given at any time prior to penetration, however reluctantly given, or if accompanied with
mere verbal protests and refusals, prevents the act from being rape, provided the consent is willing
and free of initial coercion. Thus, where a man takes hold of a woman against her will and she
afterward consents to intercourse before the act is committed, his act is not rape. However, where
the female consents, but then withdraws her consent before penetration, and the act is accomplished
by force, it is rape; and where a woman offers to allow a man to have intercourse with her on certain
conditions and he refuses to comply with the conditions, but accomplishes the act without her
consent, he is guilty of rape. [emphasis supplied]

In his commentary on the Revised Penal Code,[29] Justice Aquino discusses the concept of
committing rape against the females will or without her consent, to wit:

In rape committed by means of duress, the victims will is nullified or destroyed. Hence, the
necessity of proving real and constant resistance on the part of the woman to establish that
the act was committed against her will. On the other hand, in the rape of a woman deprived
of reason or unconscious, the victim has no will. The absence of will determines the existence
of the rape. Such lack of will may exist not only when the victim is unconscious or totally
deprived of reason, but also when she is suffering some mental deficiency impairing her
reason or free will. In that case, it is not necessary that she should offer real opposition or
constant resistance to the sexual intercourse. Carnal knowledge of a woman so weak in
intellect as to be incapable of legal consent constitutes rape. Where the offended woman was
feeble-minded, sickly and almost an idiot, sexual intercourse with her is rape. Her failure to
offer resistance to the act did not mean consent for she was incapable of giving any rational
consent. Commented [48]:

The deprivation of reason need not be complete. Mental abnormality or deficiency is enough. Commented [49]:
Cohabitation with a feebleminded, idiotic woman is rape. Sexual intercourse with an insane woman
was considered rape. But a deafmute is not necessarily deprived of reason. This circumstances must
be proven. Intercourse with a deafmute is not rape of a woman deprived of reason, in the absence
of proof that she is an imbecile. Viada says that the rape under par. 2 may be committed when the
offended woman is deprived of reason due to any cause such as when she is asleep, or due to
lethargy produced by sickness or narcotics administered to her by the accused. xxx [emphasis
supplied]

Butiong was arraigned, tried and convicted of the crime of rape as defined and penalized under
paragraph 1, Article 266-A, in relation to paragraph 1, Article 266-B of the Revised Penal Code, as
amended, under an amended information that plainly averred that AAA was a mental retardate. The
insertion of the phrase in the amended information was significant, because the phrase put him on
sufficient notice that the victim was not in full possession of her normal reasoning faculty.[30] The
phrase further specifically indicated which of the four modes of committing the crime of rape as
provided in paragraph 1, Article 266-A of the Revised Penal Code, as amended, applied in his case,
namely:

a. Through force, threat or intimidation;

b. When the offended party is deprived of reason or is otherwise unconscious;

c. By means of fraudulent machination or grave abuse of authority;

d. When the offended party is under 12 years of age, or is demented, even though none of the
circumstances first mentioned is present.

Yet, Butiongs contention is that his case did not come under any of the four modes due to carnal
knowledge of a mental retardate not being either carnal knowledge of a female deprived of reason
or otherwise unconscious, or of a female under 12 years of age or demented.

The contention is unwarranted. Commented [50]:


Article 266-A of the Revised Penal Code, as amended by Republic Act No. 8353, provides:

Article 266-A. Rape; When And How Committed. ̶ Rape is committed

1) By a man who have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented, even though none of
the circumstances mentioned above be present.

2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall
commit an act of sexual assault by inserting his penis into another persons mouth or anal orifice, or
any instrument or object into the genital or anal orifice of another person.

Carnal knowledge of a mental retardate is rape under paragraph 1 of Article 266-A of the Revised
Penal Code, as amended by Republic Act No. 8353 because a mental retardate is not capable of
giving her consent to a sexual act. Proof of force or intimidation is not necessary, it being sufficient
for the State to establish, one, the sexual congress between the accused and the victim, and, two,
the mental retardation of the victim.[31] It should no longer be debatable that rape of a mental
retardate falls under paragraph 1, b), of Article 266-A, supra, because the provision refers to a rape
of a female deprived of reason, a phrase that refers to mental abnormality, deficiency or
retardation.[32] Commented [51]:

Who, then, is a mental retardate within the context of the phrase deprived of reason used in the
Revised Penal Code?
In People v. Dalandas,[33] the Court renders the following exposition on mental retardation and its
various levels, viz:

Commented [52]:

Mental retardation is a chronic condition present from birth or early childhood and characterized by
impaired intellectual functioning measured by standardized tests. It manifests itself in impaired
adaptation to the daily demands of the individuals own social environment. Commonly, a mental
retardate exhibits a slow rate of maturation, physical and/or psychological, as well as impaired
learning capacity. Commented [53]:

Although mental retardation is often used interchangeably with mental deficiency, the latter term is
usually reserved for those without recognizable brain pathology. The degrees of mental retardation
according to their level of intellectual function are illustrated, thus:

Mental Retardation

LEVEL DESCRIPTION TERM INTELLIGENCE QUOTIENT

(IQ RANGE)

I Profound Below 20

II Severe 20-35

III Moderate 36-52

IV Mild 53-68

xxxx

The traditional but now obsolescent terms applied to those degrees of mental retardation were (a)
idiot, having an IQ of 0 to 19, and a maximum intellectual factor in adult life equivalent to that of the
average two-year old child; (b) imbecile by an IQ of 20 to 49 and a maximum intellectual function in
adult life equivalent to that of the average seven-year old child; moron or feebleminded, having an
IQ of 50 to 69 and a maximum intellectual function in adult life equivalent to that of the average
twelve-year old child. Psychiatrists and psychologists apply the term borderline intelligence to those
with IQ between 70 to 89. In People vs. Palma, we ruled that a person is guilty of rape when he had
sexual intercourse with a female who was suffering from a borderline mental deficiency. [emphasis
supplied] Commented [54]:
Considering the findings of psychologist de Guzman to the effect that AAA had the mental age of a
six- to seven-year old, an age equated with imbecility under the previous classification, her mental
age was even lower than that of a borderline mental deficiency within the context of that term as
characterized in People v. Dalandas, supra.[34] As such, Butiongs carnal knowledge of AAA
amounted to rape of a person deprived of reason.

The ability of the female to given rational consent to carnal intercourse determines if carnal
knowledge of a mental retardate like AAA is rape. Indeed, the Court has consistently considered
carnal knowledge of a female mental retardate with the mental age below 12 years of age as rape
of a woman deprived of reason.[35] As the Court aptly stated in People v. Manlapaz,[36] where the
victim was a 13-year old girl with the mentality of a five-year-old, that ability to give rational consent
was not present, viz:

Sexual intercourse with a woman who is deprived of reason or with a girl who is below twelve years
of age is rape because she is incapable of giving rational consent to the carnal intercourse. Las
mujeres privadas de razon, enajenadas, idiotas, imbeciles, son incapaces por su estado mental de
apreciar la ofensa que el culpable infiere a su honestidad y, por tanto, incapaces de consentir. Pero
no es condicion precisa que la carencia de razon sea completa, basta la abnormalidad o deficiencia
mental que solo la disminuye, sin embargo, la jurisprudence es discordante (II Cuello Calon,
Derecho Penal, 14th Ed., 1975, pp. 538-9).

Comete violacion el que yace mujer que no tiene normalmente desarrolladas sus facultades
mentales (19 nov. 1930); aqui esta comprendido el yacimiento con debiles o retrasados mentales
(11 mayo 1932, 25 feb. 1948, 27 sept. 1951); constituye este delito el coito con una nia de 15 aos
enferma de epilepsia genuina que carece de capacidad para conocer el valor de sus actos (2 marzo
1953); el yacimiento con oligofrenicas (mentally deficient persons) 28 abril, 24 octubre, 1956, 19 feb.
1958); xxx (ibid., note 3).

The same rule prevails in American jurisprudence. There can be no question but that a copulation
with a woman known to be mentally incapable of giving even an imperfect consent is rape (State vs.
Jewett, 192 At. 7).

An accused is guilty of the crime of rape when it is established that he had sexual intercourse with a
female who was mentally incapable of validly consenting to or opposing the carnal act (65 Am Jur
2nd 766 citing State vs. Prokosch, 152 Minn. 86, 187 NW 971; Cokeley vs. State, 87 Tex. Crim. 256,
220 SW 1099; 31 ALR 3rd 1227, sec. 3).

In this species of rape neither force upon the part of a man nor resistance upon the part of a woman
forms an element of the crime. If, by reason of any mental weakness, she is incapable of legally
consenting, resistance is not expected any more than it is in the case of one who has been drugged
to unconsciousness, or robbed of judgment by intoxicants. Nor will an apparent consent in such a
case avail any more than in the case of a child who may actually consent, but who by law is
conclusively held incapable of legal consent. Whether the woman possessed mental capacity
sufficient to give legal consent must, saving in exceptional cases, remain a question of fact xxx. It
need but be said that legal consent presupposes an intelligence capable of understanding the act,
its nature, and possible consequences. This degree of intelligence may exist with an impaired and
weakened intellect, or it may not (People vs. Boggs, 290 Pac. 618 citing People vs. Griffin, 49 Pac.
711 and People vs. Peery, 146 Pac. 44). [emphasis supplied]

III

People v. Cartuano was not applicable

To boost his challenge to the finding that AAA was a mental retardate, Butiong cites People v.
Cartuano,[37] a case where the Court ruled that a diagnosis of mental retardation required a
thorough evaluation of the history of the victim, and held that a physical and laboratory examination
by a clinician was necessary. He insists that the findings of the psychologist and the physicians who
had examined AAA fell short of the requirements set in People v. Cartuano, considering that
psychologist de Guzman did not try to locate the biological parents of AAA for the purpose of
ascertaining her personal history, and did not base her findings on reliable data.

Butiongs reliance on People v. Cartuano does not advance his cause.

People v. Cartuano applies only to cases where there is a dearth of medical records to sustain a
finding of mental retardation. Indeed, the Court has clarified so in People v. Delos Santos,[38]
declaring that the records in People v. Cartuano were wanting in clinical, laboratory, and
psychometric support to sustain a finding that the victim had been suffering from mental retardation.
It is noted that in People v. Delos Santos, the Court upheld the finding that the victim had been
mentally retarded by an examining psychiatrist who had been able to identify the tests administered
to the victim and to sufficiently explain the results of the tests to the trial court.[39]

In direct contrast to People v. Cartuano, this case did not lack clinical findings on the mentality of the
victim.

Moreover, as clarified in People v. Dalandas,[40] People v. Cartuano does not preclude the
presentation by the State of proof other than clinical evidence to establish the mental retardation of
the victim. For sure, the courts are not entirely dependent on the results of clinical examinations in
establishing mental retardation. In People v. Almacin,[41] for instance, the Court took into
consideration the fact that the victim was illiterate and unschooled in concluding that she was
mentally incapable of assenting to or dissenting from the sexual intercourse.[42] Also, in People v.
Dumanon,[43] the Court concurred in the trial courts observation and conclusion that the victim was
a mental retardate based on her physical appearance and on her difficulty to understand and answer
the questions during her testimony.[44]

Here, the States witnesses sufficiently explained the psychological tests conducted to establish
AAAs mental retardation with the mentality of a six- or seven-year-old. The trial judge himself
reached a conclusion on AAAs mentality from his close personal observation of her as a witness in
court, noting that she manifested a difficulty in responding to the questions, especially those bearing
on her being sexually abused.[45] The trial judges observation to the effect that she had no notion
of the wrong that had been done to her was validated by the clinical findings. As such, the totality of
the evidence presented by the State established beyond reasonable doubt AAAs deficient mental
condition.

IV

Presumption of innocence was overcome

by sufficient evidence of guilt

Notable is that Butiong did not testify. He offered neither alibi nor denial despite the strong charge of
rape brought against him. His defense was purposely limited to his submission, through Dr. Dayan,
that AAA had not been established to be a mental retardate. Thereby, he did not refute that he had
carnal knowledge of AAA. Having earlier demonstrated the futility of Dr. Dayans discounting of the
States evidence of AAAs mental retardation, we can justifiably consider the presumption of
innocence in favor of Butiong as overcome.

Still, even if he had asserted alibi and denial, his guilt for the rape of AAA would not be reversed in
the face of AAAs unwavering testimony and of her very positive and firm identification of him as the
man who had undressed her and sexually gratified himself off her.[46] He could no longer hide
behind the protective shield of his presumed innocence, but should have come forward with credible
and strong evidence of his lack of authorship of the crime. Considering that the burden of the
evidence had shifted to him but he did not discharge his burden at all, there is no other outcome
except to affirm his guilt beyond reasonable doubt.

WHEREFORE, the Court AFFIRMS the decision promulgated on May 18, 2005 in CA-GR CR HC
No. 00862.

The accused shall pay the costs of suit.

SO ORDERED.

5.G.R. No. 198954

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee


vs.
RODRIGO MACASPAC y ISIP, Accused-Appellant

When the victim was alerted to the impending lethal attack due to the preceding heated argument
between him and the accused, with the latter even uttering threats against the former, treachery
cannot be appreciated as an attendant circumstance. When the resolve to commit the crime was
immediately followed its execution, evident premeditation cannot be appreciated. Hence, the crime
is homicide, not murder.

The Case

Rodrigo Macaspac y Isip (Macaspac) hereby seeks to reverse the decision promulgated on April 7,
2011,1 whereby the Court of Appeals (CA), in CA-G.R. CR HC No. 03262, affirmed with modification
the decision rendered in Criminal Case No. C-31494 by the Regional Trial Court (RTC), Branch 129,
in Caloocan City declaring him guilty beyond reasonable doubt of murder for the killing of Robert
Jebulan y Pelaez (Jebulan).2 Commented [55]:

Antecedents

The information charging Macaspac with murder filed by the Office of the City Prosecutor of
Caloocan City reads as follows:

That on or about the 7th day of July 1988, at Caloocan City, Metro Manila and within the jurisdiction
of the Honorable Court, the above-named accused, without any justifiable cause, with deliberate
intent to kill, and with treachery and evident premeditation, did then and there willfully, unlawfully and
feloniously attack, assault and stab with a kitchen knife on the vital part of his body one ROBERT
JEBULAN Y PELAEZ, thereby inflicting upon the latter serious physical injuries, which injuries
directly caused the victim's death.

Contrary to law.3

The case was archived for more than 15 years because Macaspac had gone into hiding and
remained at large until his arrest on July 28, 2004. Upon his arraignment on August 31, 2004, he
pleaded not guilty to the foregoing information.4 Commented [56]:

The Prosecution's evidence revealed that at around 8:00 in the evening of July 7, 1988, Macaspac
was having drinks with Ricardo Surban, Dionisio Barcomo alias Boy, Jimmy Reyes, and Jebulan on
Pangako Street, Bagong Barrio, Caloocan City. In the course of their drinking, an argument ensued
between .Macaspac and Jebulan. It became so heated that, Macaspac uttered to the group: Hintayin
nyo ako d'yan, wawalisin ko kayo, and then left.5 After around three minutes Macaspac retun1ed
wielding a kitchen knife. He confronted and taunted Jebulan, saying: Ano? Jebulan simply replied:
Tama na. At that point, Macaspac suddenly stabbed Jebulan on the lower right area of his chest,
and ran away. Surban and the others witnessed the stabbing of Jebulan. The badly wounded
Jebulan was rushed to the hospital but was pronounced dead on arrival.6 Commented [57]:

Macaspac initially invoked self-defense, testifying that he and Jebulan had scuffled for the
possession of the lmife, and that he had then stabbed Jebulan once he seized control of the knife, Commented [58]:
viz.:7

Atty. Sanchez
Q - And it was alleged here in the information that on July 7, 1988 at around 8 o'clock in the evening,
in the City of Caloocan you stabbed the victim Robert Julian (Jebulan). What can you say about this?

A - We scuffled for possession for a sharp instrument and when l was able to grab that sharp
instrument, I was able to stab Roberto Jebulan, sir.8

However, Macaspac later on claimed that Jebulan had been stabbed by accident when he fell on
the knife. Macaspac denied being the person with whom Jebulan had the argument, which he
insisted had been between Barcomo and one Danny. According to him, he tried to pacify their
argument, but his effort angered Jebu1an, who drew out the knife and tried to stab him. He
fortunately evaded the stab thrust of Jebulan, whom he struck with a wooden chair to defend himself.
The blow caused Jebulan to fall on the knife, puncturing his chest.9

On February 19, 2008, the RTC found Macaspac guilty beyond reasonable doubt of murder,10
disposing:

WHEREFORE, the Court finds that the killing of Robert Jebulan is qualified by treachery. In the
absence of mitigating and aggravating· circumstances, the Court hereby finds the accused guilty
beyond reasonable doubt as charged, and hereby sentences him to suffer the imprisonment of
reclusion perpertua. Commented [59]:

The accused is ordered to indemnify the victim in the amount of ₱50,000.00 as moral damages.

Costs de oficio.

SO ORDERED. 11

On appeal, the CA affirmed the conv1ct1on but modified the civil liability by imposing civil indemnity
of ₱50,000.00, exemplary damages of ₱25,000.00, and temperate damages of ₱25,000.00,
decreeing:

WHEREFORE, the appealed 19 February 2008 Decision of Branch 129 of the Regional Trial Court
of Caloocan City is AFFIRMED with the MODIFICATIONS that appellant, aside from the moral
damages awarded by the trial court in the amount of Fifty Thousand Pesos (₱50,000.00), is further
ORDERED to pay the heirs of the victim, Robert Jebulan, the amount of Fifty Thousand Pesos
(₱50,000.00) as civil indemnity, Twei1ty-Five Thousand Pesos (₱25,000.00) as exemplary damages
and Twenty-Five Thousand Pesos (₱25,000.00) as temperate damages.

SO ORDERED.12

Macaspac is now before the Court arguing that the CA erred in affirming his conviction for murder
on the ground that the Prosecution did not establish his guilt for murder beyond reasonable doubt.13

Ruling of the Court

It is settled that the assessment of the credibility of the witnesses and their testimonies is best
undertaken by the trial court because of its unique opportunity to observe the witnesses firsthand
and to note their demeanor, conduct, and attitude under grueling examination. These factors are the
most significant in evaluating the sincerity of witnesses and in unearthing the truth, especially in the
face of conflicting testimonies. Through its personal observations during the entire proceedings, the
trial court can be expected to determine whose testimonies to accept and which witnesses to believe.
Accordingly, the findings of the trial court on such matters will not be disturbed on appeal unless
some facts or circumstances of weight were overlooked, misapprehended, or misinterpreted as to
materially affect the disposition of the case.14
The Court sees no misreading by the RTC and the CA of the credibility of the witnesses and the
evidence of the parties. On the contrary, the CA correctly observed that inconsistencies had
rendered Macaspac 's testimony doubtful as to shatter his credibility.15 In so saying, we do not shift
the burden of proof to Macaspac but are only stressing that his initial invocation of self-defense,
being in the nature of a forthright admission of committing the killing itself, placed on him the entire
burden of proving such defense by clear and convincing evidence.

Alas, Macaspac did not discharge his burden. It is noteworthy that the CA rejected his claim of self-
defense by highlighting the fact that Jebulan had not engaged in any unlawful aggression against
him. Instead, the CA observed that Jebulan was already running away from the scene when
Macaspac stabbed him. The CA expressed the following apt impressions of the incident based on
Macaspac's own declarations in court, viz.:

ACP Azarcon

x x xx

Q - How could you (appellant) hit him (Jebulan) at his back when you were facing him?

A - When I picked up the chair, when I was about to hit him with the chair, Obet turned his back to
ran (sic) from me, sir.

Q - To ran (sic) away from you?

A - Yes, sir, because he saw me, I was already holding the chair, sir. (Emphasis supplied)

Self-defense, requires three (3) elements, namely: (a) unlawful aggression on the part of the victim;
(b) reasonable necessity of the means employed to prevent or repel the aggression; and (c) lack of
sufficient provocation on the part of the person defending himself, must be proved by clear and
convincing evidence.

From the above-quoted testimony of appellant, it is clear that even before he stabbed Jebulan, the
latter was already running away from him. Hence, granting that Jebulan was initially the aggressor,
appellant's testimoriy shows that said unlawful aggression already ceased when appellant stabbed
him. Clearly, appellant's act of stabbing said victim would no longer be justified as an act of self-
defense.16

Macaspac's initial claim that he and Jebulan had scuffled for the possession of the knife, and that he
had stabbed Jebulan only after grabbing the knife from the latter became incompatible with his
subsequent statement of only striking Jebulan with the wooden chair, causing the latter to fall on the
knife. The incompatibility, let alone the implausibility of the recantation, manifested the lack of
credibility of Macaspac as a witness.

Both the RTC17 and the CA18 concluded that Macaspac had suddenly attacked the completely
unarmed and defenseless Jebulan; and that Macaspac did not thereby give Jebulan the opportunity
to retaliate, or to defend himself, or to take flight, or to avoid the deadly assault.

Did the lower cou1is properly appreciate the attendance of alevosia, or treachery?

This is where we differ from the lower courts. We cannot uphold their conclusion on the attendance
of treachery.

There is treachery when the offender commits any of the crimes against persons, employing means
and methods or forms in the execution thereof which tend to directly and specially ensure its
execution, without risk to himself arising from the defense which the offended party might make.19
Two conditions must concur in order for treachery to be appreciated, namely: one, the assailant
employed means, methods or forms in the execution of the criminal act which ·give the person
attacked no opportunity to defend himself or to retaliate; and two, said means, methods or forms of
execution were deliberately or consciously adopted by the assailant.20 Treachery, whenever alleged
in the information and competently and clearly proved, qualifies the killing and raises it to the
category of murder.21 Commented [60]:

facts:

Based on the records, Macaspac and Jebulan were out drinking along with others when they had an
argument that soon became heated, causing the former to leave the group and punctuating his
leaving with the warning that he would be back "to sweep them," the vernacular for killing the others
Hintayin n’yo ako d'yan, wawalisin ko kayo). His utterance was a threat of an impending attack.
Shortly thereafter, Macaspac returned to the group wielding the knife, immediately confronted and
directly taunted Jebulan (Ano?), and quickly stabbed the latter on the chest, and then fled. The
attack, even if it was sudden, did not constitute treachery. He did not mount the attack with surprise
because the heated argument between him and the victim and his angry threat of going back "to
sweep them" had sufficiently forewarned the latter of the impending lethal assault. Commented [61]:

ISSUE:

Nonetheless, the information also alleged the attendance of evident premeditation. We now
determine if the records sufficiently established this circumstance.1âwphi1 Commented [62]:

The requisites for the appreciation of evident premeditation are: (1) the time when the accused
determined to commit the crime; (2) an act manifestly indicating that the accused had clung to his
determination to commit the crime; and (3) the lapse of a sufficient length of time between the
determination and execution to allow him to reflect upon the consequences of his act.22 Commented [63]:

Macaspac 's having suddenly left the group and his utterance of Hintayin n’yo ako d'yan, wawalisin
ko kayo marked the time of his resolve to commit the crime. His returning to the group with the knife
manifested his clinging to his resolve to inflict lethal harm on the others. The first and second
elements of evident premeditation were thereby established. But it is the essence of this
circumstance that the execution of the criminal act be preceded by cool thought and
reflection upon the resolve to carry out the criminal intent during the space of time sufficient
to arrive at a calm judgment.23 Was the lapse of time between the determination and
execution - a matter of three minutes, based on the records - sufficient to allow him to reflect
upon the consequences of his act? By quickly returning to the group with the knife, he let no
appreciable time pass to allow him to reflect upon his resolve to carry out his criminal intent.
It was as if the execution immediately followed the resolve to commit the crime. As such, the
third requisite was absent. Commented [64]:

Accordingly, we cannot appreciate the attendance of evident premeditation in the killing, for, as
explained in People v. Gonzales:24

x x x The qualifying circumstance of premeditation can be satisfactorily established only if it could


be proved that the defendant had ample and sufficient time to allow his conscience to overcome the
determination of his will, if he had so desired, after meditation and reflection, following his plan to
commit the crime. (United States v. Abaigar, 2 Phil., 417; United States v. Gil, 13 Phil., 530.) In other
words, the qualifying circumstance of premeditation can be taken into account only when there had
been a cold and deep meditation, and a tenacious persistence in the accomplishment of the criminal
act. (United States v. Cunanan, 37 Phil. 777.) But when the determination to commit the crime was
immediately followed by execution, the circumstance of premeditation cannot be legally considered.
(United States v. Blanco, 18 Phil. 206.) x x x (Bold underscoring is supplied for emphasis) Commented [65]:

Without the Prosecution having sufficiently proved the attendance of either treachery or evident
premeditation, Macaspac was guilty only of homicide for the killing of Jebulan. The penalty for Commented [66]:
homicide, based on Article 246 of the Revised Penal Code, is reclusion temporal. Under Section 1
of the Indeterminate Sentence Law,25 the court, in imposing a prison sentence for an offense
punished by the Revised Penal Code, or its amendments, is mandated to prescribe an indeterminate
sentence the maximum term of which shall be that which, in view of the attending circumstances,
could be properly imposed under the rules of the Revised Penal Code, and the minimum term shall
be within the range of the penalty next lower to that" prescribed by the Revised Penal Code for the
offense. In the absence of aggravating or mitigating circumstances, the imposable penalty is
reclusion temporal in its medium period, or 14 years, eight months, and one day to 17 years and four
months. This is pursuant to A1iicle 64 of the Revised Penal Code.26 It is such period that the
maximum term of the indeterminate sentence is reckoned from. On the other hand, the minimum
term of the indeterminate sentence is taken from the degree next lower to reclusion temporal, which
is prision mayor. Accordingly, Macaspac shall suffer the indeterminate penalty of eight years of
prision mayor, as minimum, to 14 years, eight months and one day of reclusion temporal.

Anent the civil liabilities, we deem a modification to be necessary to align with prevailing
jurisprudence.27 Hence, Macaspac shall pay to the heirs of Jebulan the following amounts, namely:
(a) ₱50,000.00 as civil indemnity; (b) ₱50,000.00 as moral damages; and (c) ₱50,000.00 as
temperate damages. The temperate damages are awarded because no documentary evidence of
burial or funeral expenses was presented during the trial.28 Moreover, Macaspac is liable for interest
on all the items of damages at the rate of 6% per annum reckoned from the finality of this decision
until fully paid.29

WHEREFORE, the Court DECLARES accused-appellant

RODRIGO MACASPAC y ISIP guilty beyond reasonable doubt of HOMICIDE, and SENTENCES
him to suffer the indeterminate penalty of EIGHT YEARS OF PRISION MAYOR, as minimum, to 14
YEARS, EIGHT MONTHS AND ONE DAY OF RECLUSION TEMPORAL, as maximum; to pay to
the heirs of the late Robert Jebulan: (a) ₱50,000.00 as civil indemnity; (b) ₱50,000.00 as moral
damages; and (c) ₱50,000.00 as temperate damages, plus interest on all damages hereby awarded
at the rate of 6% per annum from the finality of the decision until fully paid.

The accused shall further pay the costs of suit.

SO ORDERED.

6. G.R. No. 200793 June 4, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,


vs.
MILAN ROXAS y AGUILUZ, Accused-Appellant.

DECISION

LEONARDO-DE CASTRO, J.:

This is an appeal from the Decision1 of the Court of Appeals in CAG.R. CR.-H.C. No. 03473 dated
August 16, 2011, which affirmed with modification the Judgment2 of Branch 94, Regional Trial Court
(RTC) of Quezon City dated December 11, 2007 in Criminal Case Nos. Q-00-91967 to Q-00-91971
finding accused-appellant Milan Roxas y Aguiluz guilty of five counts of rape against AAA,3 a minor
who was 9 years old at the time of the first rape and 10 years old at the time of the succeeding four
rapes. Commented [67]:

Five Informations were filed against accused-appellant Roxas, charging him as follows:

1. Crim. Case No. Q-00-91967: That on or about the 9th day of August 1998 in Quezon City,
Philippines, the above-named accused with force and intimidation did then and there willfully,
unlawfully and feloniously commit acts of sexual assault at knifepoint upon the person of [AAA] his
own niece a minor 10 years of age by then and there blindfolding her, then removed her shorts and
underwear then accused inserted his penis inside her vagina and thereafter had carnal knowledge
of her against her will and without her consent.4

2. Crim. Case No. Q-00-91968:

That on or about the 28th day of July 1998 in Quezon City, Philippines, the above-named accused
with force and intimidation did then and there willfully, unlawfully and feloniously commit acts of
sexual assault at knifepoint upon the person of [AAA] his own niece a minor 10 years of age by then
and there blindfolding her and removing her shorts and underwear and inserting his penis inside her
vagina and thereafter had carnal knowledge of her against her will and without her consent.5

3. Crim. Case No. Q-00-91969:

That on or about the 16th day of September 1997 in Quezon City, Philippines, the above-named
accused with force and intimidation did then and there willfully, unlawfully and feloniously commit
acts of sexual assault at knifepoint upon the person of [AAA] his own niece a minor 9 years of age
by then and there laying her on the chairs inside the bathroom, then blindfolded her and then
removed her shorts and underwear then accused inserted his penis inside her vagina and thereafter
had carnal knowledge of her against her will and without her consent.6

4. Crim. Case No. Q-00-91970:

That on or about the 20th day of March 1998 in Quezon City, Philippines, the above-named accused
with force and intimidation did then and there willfully, unlawfully and feloniously commit acts of
sexual assault at knifepoint upon the person of [AAA] his own niece a minor 10 years of age by then
and there laying her down on a bed inside his grandparents’ room then blindfolded her, then removed
her shorts and underwear, then accused inserted his penis inside her vagina and thereafter had
carnal knowledge of her against her will and without her consent.7

5. Crim. Case No. Q-00-91971:

That on or about the 11th day of May 1998 in Quezon City, Philippines, the above-named accused
with force and intimidation did then and there willfully, unlawfully and feloniously commit acts of
sexual assault at knifepoint upon the person of [AAA] his own niece a minor 10 years of age by then
and there removing her shorts and underwear and inserting his penis inside her vagina and
thereafter had carnal knowledge of her against her will and without her consent.8 Accused-appellant
Roxas entered a plea of Not Guilty to all the crimes charged.9

The prosecution’s factual account based on the testimony of AAA was concisely stated by the Office
of the Solicitor General in its Appellee’s Brief, as follows:

On 16 September 1997, [AAA], who was then 9 years of age, was at her grandmother [CCC]’s house
located on [XXX], Quezon City. In the morning of said date, she was at the dirty kitchen with her aunt
[ZZZ] who was then washing clothes. Her aunt asked her if she had already taken a bath, she replied
in the negative.
Her uncle, accused-appellant, overheard their conversation so he volunteered to give [AAA] a bath.
Subsequently, he brought her upstairs to the bathroom.

While inside the bathroom, accused-appellant told [AAA] to turn around. After she complied with his
directive, he blindfolded her. [AAA] started to wonder what the accused-appellant was doing so she
told him that he was supposed to give her a bath. Accused-appellant told her that they would play
first for a while.

He turned her around three (3) times and then, removed her shorts and underwear. After that, he
sat on a chair, which was inside the bathroom, and raised both of her legs. Commented [68]:

Thereafter, she felt him on top of her. She also felt accused-appellant’s penis enter her vagina which
she found painful.

She cried and shouted the name of her aunt, but accused-appellant got angry and poked a sharp
instrument on her neck. [AAA] did not report the incident because accused-appellant threatened to
cut her tongue and to kill her and her mother.

[AAA] was raped again on 20 March 1998 while she was at the same house of her paternal
grandparents. She was on the terrace on the second floor of the house when accused-appellant,
who was in her grandparents’ bedroom at that time, called her. She hesitated to go near him because
she was afraid that he might rape her again.

Accused-appellant then went to the terrace and dragged her to the bedroom of her grandparents.
She could not run anymore nor shout for help because aside from the fact that there was nobody
else in the room, accused-appellant was holding a pointed weapon.

While [AAA] and accused-appellant were inside the room, he blindfolded her, removed her shorts
and underwear, and then laid her down the bed. Thereafter, he moved on top of her and inserted his
penis in her vagina. Again, she did not report the incident because of accused-appellant’s threats
should she report the incident to anybody.

Another incident of rape took place on 11 May 1998while [AAA] was again at her paternal
grandparents’ house. On the said date, she was alone in the living room on the second floor of the
house when accused-appellant called her. She did not accede to his bidding because she was
scared of him. Thereafter, he shouted at her and demanded that she come near him, so she went to
him.

He brought her inside her grandmother’s bedroom and upon reaching the room, he immediately
blindfolded her and poked a bladed weapon on her neck. He turned her around three (3) times,
removed her shorts and underwear, laid her down the bed, moved on top of her, and inserted his
penis in her vagina. Again, the accused-appellant threatened her so she did not report what had
happened.

[AAA]’s ordeal did not stop there. She was raped for the fourth time on 28 July 1998 at her paternal
grandparents’ house.1âwphi1 She and the accused were incidentally alone in the living room on the
second floor of the house. He asked her to go with him inside the bedroom of her grandparents, but
she did not get up from her seat. So accused-appellant pulled her toward the bedroom. She tried to
free herself, but he poked a pointed instrument at her.

Accused-appellant committed the same acts he had perpetrated on [AAA] during her three [previous]
rape incidents: he removed her shorts and underwear, laid her on the bed, moved on top of her and
thereafter, inserted his penis in her vagina. She was again threatened by the accused-appellant not
to tell anybody about the incident or else he would cut her tongue and kill her and her mother.
The fifth and last incident of rape happened on 09 August 1998. At that time, [AAA] was at the terrace
on the second floor of her paternal grandparents’ house; and accused-appellant also happened to
be there. He pulled her and brought her inside the room, blindfolded her, and turned her around
three (3) times. He employed the same method in raping her: he removed her shorts and underwear,
laid her on the bed and moved on top of her. She tried to push him and raise her shorts and panty,
but she did not succeed because he poked a pointed instrument on her neck. Thereafter, he inserted
his penis in her vagina. Again, she did not report the incident to anyone because she was scared of
his threats.10 (Emphases supplied, citations omitted.) Commented [69]:

In contrast, the defense presented four witnesses: AAA’s mother (BBB), AAA’s two brothers (DDD
and EEE), and Dr. Agnes Aglipay, Regional Psychiatrist of the Bureau of Jail Management and
Penology. The defense’s statement of the antecedent facts as contained in the Appellant’s Brief is
reproduced here:

Accused Milan Roxas denied having raped [AAA] on all the five (5) counts of rape.

[DDD], brother of herein private complainant, testified that his aunt in the maternal side, [Tita YYY],
induced him by giving toys if he would tell his father that the accused was raping his sister, [AAA].
Upon prodding of his maternal aunt, [DDD],who was only eight (8) years old then, told his father that
he saw the accused rape his sister. His father ran amuck which led to the filing of the instant case.

On subsequent days, while [DDD]and [AAA] were in a grocery store buying something, their [Tito
XXX], [Tito WWW] and [Tita YYY] arrived on board an FX vehicle. [Tita YYY] told [DDD] that they
will be going to buy toys. [DDD] said that he will first ask permission from his grandfather, but [Tita
YYY] said that it would only take a few minutes and they will bring them home afterwards. [AAA] was
brought to SSDD, a place under the administration of the DSWD, while [DDD] was brought to
Caloocan. On the following day, he was brought to Muñoz, in a rented house of his [Tita YYY] and
her husband. [DDD] stayed there for almost a year. He was forbidden to go outside as the door was
always locked. When [his Tita VVV] arrived from Japan they went to Tarlac where his paternal
grandmother fetched him.

[EEE], brother of herein private complainant, likewise testified that when [his Tita VVV] arrived, they
went to North Olympus, Quezon City where [his] maternal relatives reside. On one occasion, he saw
his sister, [AAA] and his maternal uncle [Tito XXX] entered one of the bedrooms. He tried to open
the door to see what the duo were doing, but it was locked. [EEE] looked for a wire and was able to
open the door. He saw private complainant on top of his [TitoXXX], both naked. When the duo saw
him, private complainant and his [Tito XXX] stood up. The latter threatened him not to tell anybody
or he will cut off his tongue.

On November 26, 1999, [BBB], mother of the private complainant testified that her two (2) children,
[AAA] and [DDD], were missing. She looked for them, but to no avail. So she went to the police
station to have it blottered. Later did she know when she called her sister who resides in Project 6,
Quezon City that [DDD] was brought to Ilocos and [AAA] at the SSDD in Kamuning by her 3 brothers
and sister. She filed a case of kidnapping against his brother [Tito WWW]. [Tito WWW], however,
promised to return her children if she will have the said case dismissed which she did.

She denied the allegations that[her] brother-in-law, herein accused, raped her daughter, [AAA]. In
fact, before the filing of the present rape cases there was one rape case filed on September 22, 1999
which was dismissed because [AAA] retracted her statements. As told to [BBB] by her daughter
[AAA], she was not raped by herein accused. She told a lie and made the false accusation against
the accused, because she does not want to put the blame on any of her maternal relatives. [AAA]
was greatly indebted to her maternal grandmother and her maternal uncles and aunts because they
had taken care of her since she was three (3) years old.
Dr. Agnes Aglipay, Regional Psychiatrist of the Bureau of Jail Management and Penology testified
that based on her examination of the accused, she concluded that he is suffering from a mild mental
retardation with a mental age of nine (9) to ten (10) years old. She observed that the subject was
aware that he was being accused of rape, but he had consistently denied the allegations against
him.11 (Citations omitted.) Commented [70]:

The RTC of Quezon City rendered its Judgment on December 11, 2007, finding accused-appellant
Roxas guilty as charged in each of the five Informations filed against him. The dispositive portion
reads:

WHEREFORE, premises considered, judgment is hereby rendered finding the accused GUILTY
beyond reasonable doubt in all five (5) counts of rape as recited in the information[s] and sentences
accused MILAN ROXAS: Commented [71]:

1) In Crim. Case No. Q-00-91967 – to suffer the penalty of reclusion perpetua, to indemnify the
offended party [AAA] the sum of Php75,000.00, to pay moral damages in the sum of Php50,000.00,
and to pay the costs;

2) In Crim. Case No. Q-00-91968 – to suffer the penalty of reclusion perpetua, to indemnify the
offended party [AAA] the sum of Php75,000.00, to pay moral damages in the sum of Php50,000.00,
and to pay the costs;

3) In Crim. Case No. Q-00-91969 – to suffer the penalty of reclusion perpetua, to indemnify the
offended party [AAA] the sum of Php75,000.00, to pay moral damages in the sum of Php50,000.00,
and to pay the costs;

4) In Crim. Case No. Q-00-91970 – to suffer the penalty of reclusion perpetua, to indemnify the
offended party [AAA] the sum of Php75,000.00, to pay moral damages in the sum of Php50,000.00,
and to pay the costs; and

5) In Crim. Case No. Q-00-91971 – to suffer the penalty of reclusion perpetua, to indemnify the
offended party [AAA] the sum of Php75,000.00, to pay moral damages in the sum of Php50,000.00,
and to pay the costs.

To credit in favor of the herein accused the full period of his detention in accordance with law.
Resultantly, all pending incidents are deemed moot and academic.12

The RTC held that accused-appellant Roxas is not exempt from criminal responsibility on the ground
that he cannot be considered a minor or an imbecile or insane person, since Dr. Aglipay merely
testified that he was an eighteen-year old with a mental development comparable to that of children
between nine to ten years old. The RTC found the testimony of AAA credible, and found the
testimonies of the defense witnesses to be "flimsy."

Accused-appellant Roxas elevated the case to the Court of Appeals, where the case was docketed
as CA-G.R. CR.-H.C. No. 03473. Accused-appellant Roxas submitted the following Assignment of
Errors in the appellate court:

THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE
PRIVATE COMPLAINANT’S TESTIMONY.

II
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSEDAPPELLANT GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME CHARGED.13

On August 16, 2011, the Court of Appeals rendered the assailed Decision, modifying the Judgment
of the RTC as follows:

WHEREFORE, premises considered, the Judgment dated 11 December 2007 of the Regional Trial
Court of Quezon City, Branch 94, in the case entitled People of the Philippines vs. Milan Roxas y
Aguiluz", docketed therein as Criminal Case Nos. Q-00-91967 to Q-00-91971, is AFFIRMED with
modification that accused-appellant is ordered to pay private complainant on each count civil
indemnity in the amount of ₱75,000.00, moral damages in the amount of ₱75,000.00, and exemplary
damages in the amount of ₱30,000.00, for each count of rape.14 Hence, accused-appellant Roxas
interposed this appeal, where he, in his Supplemental Brief, presented an Additional Assignment of
Error:

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE TRIAL Commented [72]:
COURT’S DECISION GIVING CREDENCE TO THE PRIVATE COMPLAINANT’S TESTIMONY.15

Accused-appellant Roxas claims that the testimony of AAA is replete with inconsistencies and
narrations that are contrary to common experience, human nature and the natural course of
things.16 Accused-appellant Roxas likewise points out that under Republic Act No. 9344 or the
Juvenile Justice and Welfare Act of 2006, minors fifteen (15) years old and below are exempt from
criminal responsibility. Accused-appellant Roxas claims that since he has a mental age of nine years
old, he should also be "exempt from criminal liability although his chronological age at the time of
the commission of the crime was already eighteen years old."17 Commented [73]:

In the matter of assigning criminal responsibility, Section 6 of Republic Act No. 934418 is explicit in
providing that:

SEC. 6. Minimum Age of Criminal Responsibility. — A child fifteen (15) years of age or under at the
time of the commission of the offense shall be exempt from criminal liability. However, the child shall
be subjected to an intervention program pursuant to Section 20 of this Act.

A child is deemed to be fifteen (15) years of age on the day of the fifteenth anniversary of his/her
birthdate.

A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from
criminal liability and be subjected to an intervention program, unless he/she has acted with
discernment, in which case, such child shall be subjected to the appropriate proceedings in
accordance with this Act.

The exemption from criminal liability herein established does not include exemption from civil liability,
which shall be enforced in accordance with existing laws. (Emphasis supplied.)

In determining age for purposes of exemption from criminal liability, Section 6 clearly refers to the
age as determined by the anniversary of one’s birth date, and not the mental age as argued by
accused-appellant Roxas. When the law is clear and free from any doubt or ambiguity, there is no
room for construction or interpretation. Only when the law is ambiguous or of doubtful meaning may
the court interpret or construe its true intent.19 Commented [74]:

On the matter of the credibility of AAA, we carefully examined AAA’s testimony and found ourselves
in agreement with the assessment of the trial court and the Court of Appeals. As observed by the
appellate court:
We note that she recounted her ordeal in a logical, straightforward, spontaneous and frank manner,
without any artificialities or pretensions that would tarnish the veracity of her testimony. She recalled
the tragic experience and positively identified accused-appellant as the one who ravished her on five
occasions. Her testimony was unshaken by a grueling cross-examination and there is no impression
whatsoever that the same is a mere fabrication. For her to come out in the open and publicly describe
her harrowing experience at a trial can only be taken as a badge of her sincerity and the truth of her
claims.20

We further underscore that AAA was merely 14 years old at the time she testified.21 We have
repeatedly held that testimonies of child-victims are normally given full weight and credit, since when
a girl, particularly if she is a minor, says that she has been raped, she says in effect all that is
necessary to show that rape has in fact been committed. When the offended party is of tender age
and immature, courts are inclined to give credit to her account of what transpired, considering not
only her relative vulnerability but also the shame to which she would be exposed if the matter to
which she testified is not true. Youth and immaturity are generally badges of truth and sincerity.22

It is likewise axiomatic that when it comes to evaluating the credibility of the testimonies of the
witnesses, great respect is accorded to the findings of the trial judge who is in a better position to
observe the demeanor, facial expression, and manner of testifying of witnesses, and to decide who
among them is telling the truth.23 As the trial court further observed, the defense witnesses were
not eyewitnesses. A witness can testify only to those facts which he knows of his personal
knowledge; that is, which are derived from his own perception, except as provided in the Rules of
Court.24 AAA’s mother and brothers were not present when the five rapes allegedly occurred, and
therefore any testimony on their part as to whether or not the complained acts actually happened is
hearsay.

We shall now discuss the criminal liability of accused-appellant Roxas. As stated above, the trial
court imposed the penalty of reclusion perpetua for each count of rape.

The first rape incident was committed in July 1997, and therefore the law applicable is Article 335 of
the Revised Penal Code as amended by Republic Act No. 7659 which provides:

ART. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of
a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented. The crime of rape shall be punished
by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly weapon or by two or more persons,
the penalty shall be reclusion perpetua to death.

xxxx

The death penalty shall also be imposed if the crime of rape is committed with any of the following
attendant circumstances:

1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-
law spouse of the parent of the victim.

The succeeding counts of rape were committed after the effectivity of Republic Act No. 8353 on
October 22,1997, which transported the rape provision of the Revised Penal Code to Title 8 under
Crimes against Persons, and amended the same to its present wording:
Article 266-A. Rape, When And How Committed. — Rape is committed —

1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat or intimidation;

b) When the offended party is deprived of reason or is otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented, even though none of
the circumstances mentioned above be present.

Article 266-B. Penalties. — Rape under paragraph 1 of the next preceding article shall be punished
by reclusion perpetua.

Whenever the rape is committed with the use of a deadly weapon or by two or more persons, the
penalty shall be reclusion perpetua to death.

xxxx

The death penalty shall also be imposed if the crime of rape is committed with any of the following
aggravating/qualifying circumstances:

1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-
law spouse of the parent of the victim[.]

While it appears that the circumstance of minority under Article 335 (old rape provision) and Article
266-B was sufficiently proven, the allegation of the relationship between AAA and accused-appellant
Roxas is considered insufficient under present jurisprudence. This Court has thus held:

However, as regards the allegation in the Information that appellant is an uncle of the victim, we
agree with the Court of Appeals that the same did not sufficiently satisfy the requirements of Art. 335
of the Revised Penal Code, i.e., it must be succinctly stated that appellant is a relative within the 3rd
civil degree by consanguinity or affinity. It is immaterial that appellant admitted that the victim is his
niece. In the same manner, it is irrelevant that "AAA" testified that appellant is her uncle. We held in
People v. Velasquez:

However, the trial court erred in imposing the death penalty on accused-appellant, applying Section
11 of Republic Act No. 7659.1âwphi1 We have consistently held that the circumstances under the
amendatory provisions of Section 11 of R.A. No. 7659, the attendance of which could mandate the
imposition of the single indivisible penalty of death, are in the nature of qualifying circumstances
which cannot be proved as such unless alleged in the information. Even in cases where such
circumstances are proved, the death penalty cannot be imposed where the information failed to
allege them. To impose the death penalty on the basis of a qualifying circumstance which has not
been alleged in the information would violate the accused's constitutional and statutory right to be
informed of the nature and cause of the accusation against him. Commented [75]:

While the informations in this case alleged that accused-appellant is the uncle of the two victims,
they did not state that he is their relative within the third civil degree of consanguinity or affinity. The
testimonial evidence that accused-appellant's wife and Luisa de Guzman are sisters is immaterial.
The circumstance that accused-appellant is a relative of the victims by consanguinity or affinity within
the third civil degree must be alleged in the information. In the case at bar, the allegation that
accused-appellant is the uncle of private complainants was not sufficient to satisfy the special
qualifying circumstance of relationship. It was necessary to specifically allege that such relationship
was within the third civil degree. Hence, accused-appellant can only be convicted of simple rape on
two counts, for which the penalty imposed is reclusion perpetua in each case.25

In the case at bar, the allegation that AAA was accused-appellant Roxas’s "niece" in each
Information is therefore insufficient to constitute the qualifying circumstances of minority and
relationship. Instead, the applicable qualifying circumstance is that of the use of a deadly weapon,
for which the penalty is reclusion perpetua to death. Since there was no other aggravating
circumstance alleged in the Information and proven during the trial, the imposed penalty of reclusion
perpetua for each count of rape is nonetheless proper even as we overturn the lower courts’
appreciation of the qualifying circumstances of minority and relationship. Commented [76]:

For consistency with prevailing jurisprudence, we reduce the awards of civil indemnity and moral
damages to ₱50,000.00 each, for each count of rape. The award of exemplary damages in the
amount of ₱30,000.00 for each count, on the other hand, is in line with recent jurisprudence.26
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 03473 dated August
16, 2011 is hereby AFFIRMED with the MODIFICATION that the amount of civil indemnity and moral
damages awarded to the complainant are reduced to ₱50,000.00 each, for each count of rape, plus
legal interest upon the amounts of indemnity and damages awarded at the rate of 6% per annum
from the date of finality of this judgment.

SO ORDERED.

7. G.R. No. 176102 November 26, 2014

ROSAL HUBILLA y CARILLO, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.

RESOLUTION

BERSAMIN, J.:

The Court recognizes the mandate of Republic Act No. 9344 (Juvenile Justice and Welfare Act of
2006) to protect the best interest of the child in conflict with the law through measures that will ensure
the observance of international standards of child protection,1 and to apply the principles of
restorative justice in all laws, policies and programs applicable to children in conflict with the law.2
The mandate notwithstanding, the Court will not hesitate or halt to impose the penalty of
imprisonment whenever warranted on a child in conflict with the law.

Antecedents

The Office of the Provincial Prosecutor of Camarines Sur charged the petitioner with homicide under
the following information docketed as Criminal Case No. 2000-0275 of the Regional Trial Court
(RTC), Branch 20, in Naga City, to wit: Commented [77]:
That on or about the 30th day of March, 2000 at about 7:30 P.M., in Barangay Dalupaon, Pasacao,
Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the said accused,
with intent to kill, and without any justifiable cause, did then and there willfully, unlawfully and
feloniously assault, attack and stab one JAYSON ESPINOLA Y BANTA with a knife , inflicting upon
the latter mortal wounds in his body, thus, directly causing his death, per Death Certification hereto
attached as annex "A" and made an integral part hereof, to the damage and prejudice of the
deceased’s heirs in such amount as may be proven in court.

Acts Contrary to Law.3

FACTS:

The CA summarized the facts established by the Prosecution and the Defense as follows: Alejandro
Dequito testified that around seven in the evening or so of March 30, 2000, he, together with his
compadre Nicasio, was at the gate of Dalupaon Elementary School watching the graduation
ceremony if the high school students. While watching, his cousin Jason Espinola, herein victim,
arrived. Later, however, appellant approached the victim and stabbed the latter. When asked to
demonstrate in open court how the appellant stabbed the victim, this witness demonstrated that with
the appellant’s left arm around the neck of the victim, appellant stabbed the victim using a bladed
weapon. Commented [78]:

He aided the victim as the latter was already struggling to his feet and later brought him to the
hospital.

Nicasio Ligadia, witness Dequito’s companion at the time of the incident, corroborated the testimony
of Dequito on all material points.

Marlyn Espinosa, the mother of the deceased, testified that her son was stabbed in front of the
[elementary] school and later brought to the Bicol Medical Center. She stated that her son stayed for
more than a month in the hospital. Thereafter, her son was discharged. Later, however, when her
son went back to the hospital for a check-up, it was discovered that her son’s stab wound had a
complication. Her son was subjected to another operation, but died the day after. She, further, stated
that the stabbing incident was reported to the police authorities. She, likewise, stated the amounts
she incurred for the wake and burial of her son.

Robert Casin, the medico legal expert, testified that the cause of death of the victim, as stated by Dr.
Bichara, his co-admitting physician, was organ failure overwhelming infection. He, further, stated
that the underlined cause of death was a stab wound.

The appellant, in his testimony, narrates his statement of facts in this manner:

He testified that around seven inthe evening or so of March 30, 2000, he was at the Dalupaon High
School campus watching the high school graduation rites. At half past seven, while walking towards
the gate of Dalupaon High School on his way home, he was ganged up by a group of four (4) men. Commented [79]:

The men attacked and started to box him. After the attack he felt dizzy and fell to the ground. He
was not able to see or even recognize who attacked him, so he proceeded home. Shortly after
leaving the campus, however, he met somebody whom he thought was one of the four men who
ganged up on him. He stabbed the person with the knife he was, then, carrying. When asked why
he was in possession of a knife, he stated that he used it in preparing food for his friend, Richard
Candelaria, who was graduating that day. He went home after the incident. Commented [80]:
While inside his house, barangay officials arrived, took him and brought him to the barangay hall,
and later to the Pasacao PNP. On his way to the town proper, he came to know that the person he
stabbed was Jason Espinola. He felt sad after hearing it.4

Judgment of the RTC

After trial, the RTC rendered its judgment finding the petitioner guilty of homicide as charged, and
sentenced him to suffer the indeterminate penalty of imprisonment for four years and one day of
prision correccional, as minimum, to eight years and one day of prision mayor, as maximum; and to
pay to the heirs of the victim ₱81,890.04 as actual damages for medical and funeral expenses, and
₱50,000.00 as moral damages.5 Commented [81]:

Decision of the CA

On appeal, the Court of Appeals (CA) affirmed the petitioner’s conviction but modified the penalty Commented [82]:
and the civil liability through the decision promulgated on July 19, 2006,6 disposing thus:
WHEREFORE, premises considered, the decision of the Regional Trial Court of Naga City, Branch
20, in Criminal Case Number 2000-0275, finding appellant Rosal Hubilla y Carillo, guilty beyond
reasonable doubt of Homicide is, hereby, AFFIRMED with MODIFICATIONS. Appellants (sic)
sentence is reduced to six months and one day to six years of prision correccionalas minimum, to
six years and one day to twelve years of prision mayor as maximum.

The civil aspect of the case is MODIFIED to read: The award of actual damages in the amount of
Php 81,890.04, representing expenses for medical and funeral services, is reduced to Php
16,300.00. A civil indemnity, in the amount of Php 50,000.00, is awarded to the legal heirs of the
victim Jason Espinola. Weaffirm in all other respects.

SO ORDERED.

On motion for reconsideration by the petitioner, the CA promulgated its amended decision on
December 7, 2006, decreeing as follows:7

WHEREFORE, the instant Motion for Reconsideration is PARTIALLY GRANTED. Our decision
promulgated on July 16, 2006, which is the subject of the instant motion is, hereby AMENDED such
that the judgment shall now read as follows:

WHEREFORE, premises considered, the decision of the Regional Trial Court of Naga City, Branch
20, in Criminal Case Number 2000-0275, finding appellant Rosal Hubilla y Carillo, guilty beyond
reasonable doubt of Homicide is, hereby, AFFIRMED with MODIFICATIONS. Appellant is sentenced
to an indeterminate penalty of six months and one day of prision correccional, as minimum, to eight
(8) years and one (1) day of prision mayor.

The civil aspect of the case is MODIFIED to read: The award of actual damages in the amount of
Php 81,890.04, representing expenses for medical and funeral services, is reduced to Php
16,300.00. A civil indemnity, in the amount of Php 50,000.00, is awarded to the legal heirs of the
victim Jason Espinola. We affirm in all other respects.

The case is, hereby, remanded to the Regional Trial Court of Naga, Branch 20, for appropriate action
on the application for probation of, herein, appellant.

SO ORDERED.

Issues
The petitioner has come to the Court imputing grave error to the CA for not correctly imposing the
penalty, and for not suspending his sentence as a juvenile in conflict with the law pursuant to the
mandate of Republic Act No. 9344. In fine, he no longer assails the findings of fact by the lower
courts as well as his conviction, and limits his appeal to the following issues, namely: (1) whether or
not the CA imposed the correct penalty imposable on him taking into consideration the pertinent
provisions of Republic Act No. 9344, the Revised Penal Codeand Act No. 4103 (Indeterminate
Sentence Law); (2) whether or not he was entitled to the benefits of probation and suspension of
sentence under Republic Act No. 9344; and (3) whether or not imposing the penalty of imprisonment
contravened the provisions of Republic Act No. 9344 and other international agreements. Commented [83]:

Ruling of the Court

Article 249 of the Revised Penal Code prescribes the penalty of reclusion temporal for homicide.
Considering that the petitioner was then a minor at the time of the commission of the crime, being
17 years, four months and 28 days old when he committed the homicide on March 30, 2000,8 such
minority was a privileged mitigating circumstance that lowered the penalty to prision mayor.9

Under the Indeterminate Sentence Law, the minimum of the indeterminate sentence should be within
the penalty next lower than the imposable penalty, which, herein, was prision correccional (i.e., six
months and one day to six years). For the maximum of the indeterminate sentence, prision mayor in
its medium period – eight years and one day to 10 years – was proper because there were no
mitigating or aggravating circumstances present. Accordingly, the CA imposed the indeterminate
penalty of imprisonment of six months and one day of prision correccional, as minimum, to eight
years and one day of prision mayor, as maximum.

The petitioner insists, however, that the maximum of his indeterminate sentence of eight years and
one day of prison mayor should be reduced to only six years of prision correccional to enable him to
apply for probation under Presidential Decree No. 968.

The petitioner’s insistence is bereft of legal basis. Neither the Revised Penal Code, nor Republic Act
No. 9344, nor any other relevant law or rules support or justify the further reduction of the maximum
of the indeterminate sentence. To yield to his insistence would be to impose an illegal penalty, and
would cause the Court to deliberately violate the law.

A.M. No. 02-1-18-SC10 (Rule on Juveniles in Conflict with the Law) provides certain guiding
principles in the trial and judging in cases involving a child in conflict with the law. One of them is
that found in Section 46 (2), in conjunction with Section 5 (k), whereby the restrictions on the personal
liberty of the child shall be limited to the minimum.11 Consistent with this principle, the amended
decision of the CA imposed the ultimate minimums of the indeterminate penalty for homicide under
the Indeterminate Sentence Law. On its part, Republic Act No. 9344 nowhere allows the trial and
appellate courts the discretion to reduce or lower the penalty further, even for the sake of enabling
the child in conflict with the law to qualify for probation.

Conformably with Section 9(a) of Presidential Decree 968,12 which disqualifies from probation an
offender sentenced to serve a maximum term of imprisonment of more than six years, the petitioner
could not qualify for probation. For this reason, we annul the directive of the CA to remand the case
to the trial court to determine if he was qualified for probation.

Although Section 38 of Republic Act No. 9344 allows the suspension of the sentence of a child in
conflict with the law adjudged as guilty of a crime, the suspension is available only until the child
offender turns 21 years of age, pursuant to Section 40 of Republic Act No. 9344, to wit: Commented [84]:

Section 40. Return of the Child in Conflict with the Law to Court.– If the court finds that the objective
of the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or
if the child in conflict with the law has wilfully failed to comply with the conditions of his/her disposition
or rehabilitation program, the child in conflict with the law shall be brought before the court for
execution of judgment.

If said child in conflict with the law has reached eighteen (18) years of age while under suspended
sentence, the court shall determine whether to discharge the child in accordance with this Act, to
order execution of sentence, or to extend the suspended sentence for a certain specified period or
until the child reaches the maximum age of twenty-one (21) years. Commented [85]:

We note that the petitioner was well over 23 years of age at the time of his conviction for homicide
by the RTC on July 19, 2006. Hence, the suspension of his sentence was no longer legally feasible
or permissible.

Lastly, the petitioner posits that condemning him to prison would be in violation of his rights as a
child inconflict with the law as bestowed by Republic Act No. 9344 and international
agreements.1avvphi1 A review of the provisions of Republic Act No. 9344 reveals, however, that
imprisonment of children in conflict with the law is by no means prohibited. While Section 5 (c) of
Republic Act No. 9344 bestows on children in conflict with the law the rightnot to be unlawfully or
arbitrarily deprived of their liberty; imprisonment as a proper disposition of a case is duly recognized,
subject to certain restrictions on the imposition of imprisonment, namely: (a) the detention or
imprisonment is a disposition of last resort, and (b) the detention or imprisonment shall be for the
shortest appropriate period of time.Thereby, the trial and appellate courts did not violate the letter
and spirit of Republic Act No. 9344 by imposing the penalty of imprisonment on the petitioner simply
because the penalty was imposed as a last recourse after holding him to be disqualified from
probation and from the suspension of his sentence, and the term of his imprisonment was for the
shortestduration permitted by the law. Commented [86]:

A survey of relevant international agreements13 supports the course of action taken herein. The
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing
Guidelines),14 the United Nations Guidelines for the Prevention of Juvenile Delinquency (Riyadh
Guidelines) and the United Nations Rules for the Protection of Juveniles Deprived of Liberty15 are
consistent in recognizing that imprisonment is a valid form of disposition, provided it is imposed asa
last resort and for the minimum necessary period.

Lastly, following Section 51 of Republic Act No. 9344, the petitioner, although he has to serve his
sentence, may serve it in an agricultural camp or other training facilities to be established,
maintained, supervised and controlled by the Bureau of Corrections, in coordination with the
Department of Social Welfare and Development, in a manner consistent with the offender child’s
best interest. Such service of sentence will be in lieu of service in the regular penal institution.

WHEREFORE, the Court DENIES the petition for review on certiorari; AFFIRMS the amended
decision promulgated on December 7, 2006 in C.A.-G.R. CR No. 29295, but DELETING the order
to remand the judgment to the trial court for implementation; and DIRECTS the Bureau of Corrections
to commit the petitioner for the service of his sentence in an agricultural camp or other training
facilities under its control, supervision and management, in coordination with the Department of
Social Welfare and Development.

No pronouncement on costs of suit.

SO ORDERED.

8. G.R. No. 171222, February 18, 2015


PEOPLE OF THE PHILIPPINES, Petitioner, v. LTSG. DOMINADOR BAYABOS, LTJG. MANNY
G. FERRER, LTJG. RONALD G. MAGSINO, LTJG. GERRY P. DOCTOR, ENS. DOMINADOR B.
OPERIO, JR., AND THE HON. SANDIGANBAYAN, Respondents.

[G.R. No. 174786]

PEOPLE OF THE PHILIPPINES, Petitioner, v. RADM VIRGINIO R. ARIS, LTJG. KRUZALDO G.


MABBORANG, ENS. DENNIS S. VELASCO, AND THE HON. SANDIGANBAYAN,

While this Court has recently faced questions on the criminal liability of fraternity members for hazing,
this case presents novel questions on the extent of liability of schools and school authorities under
Republic Act No. 8049, or the Anti-Hazing Law.

The responsibility given to an academic institution for the welfare of its students has been
characterized by law and judicial doctrine as a form of special parental authority and responsibility.1
This responsibility has been amplified by the enactment of the Anti-Hazing Law, in that the failure by
school authorities to take any action to prevent the offenses as provided by the law exposes them to
criminal liability as accomplices in the criminal acts. Thus, the institution and its officers cannot stand
idly by in the face of patently criminal acts committed within their sphere of responsibility. They bear
the commensurate duty to ensure that the crimes covered by the Anti-Hazing Law are not committed.

It was within this legal framework that the school authorities of the Philippine Merchant Marine
Academy (PMMA) were criminally charged before the Sandiganbayan as accomplices to hazing
under the Anti-Hazing Law. Before they were arraigned, the Sandiganbayan quashed2 the
Information against them on the basis of the dismissal of the criminal case against the principal
accused and, the failure to include in the Information the material averments required by the Anti-
Hazing Law.

Consequently, this Petition was filed before this Court questioning the Sandiganbayan’s quashal of
the Information.

FACTS:

The Case Background

Fernando C. Balidoy, Jr. (Balidoy) was admitted as a probationary midshipman at the PMMA. In
order to reach active status, all new entrants were required to successfully complete the mandatory
“Indoctrination and Orientation Period,”4 which was set from 2 May to 1 June 2001.5 Balidoy died
on 3 May 2001.6chanroblesvirtuallawlibrary

The National Bureau of Investigation (NBI) probed the death of Balidoy. After months of investigation,
it forwarded its findings to the provincial prosecutor of Zambales for the preliminary investigation and
possible criminal prosecution of those involved in the orientation and indoctrination of the PMMA
Class of 2005.8 Subsequently, the Assistant Provincial Prosecutor of Zambales issued a Resolution9
finding probable cause to charge the following as principals to the crime of hazing: Aldwin Alvarez
(Alvarez), Leotharius C. Montez (Montez), Rudence G. Reyes (Reyes), and Jed Nicholas S. Simpas
(Simpas) – collectively, Alvarez et al. A criminal case against Alvarez et al. was then filed with the
Regional Trial Court of Iba, Zambales (RTC–Zambales). Commented [87]:

The Assistant Provincial Prosecutor also endorsed to the Deputy Ombudsman for the Military the
finding of probable cause to charge the following school authorities as accomplices to hazing: Rear
Admiral (RADM) Virginio R. Aris (Aris), Lieutenant Senior Grade (LTSG.) Dominador D. Bayabos
(Bayabos), Lieutenant Junior Grade (LTJG.) Gerry P. Doctor (Doctor), LTJG. Manny Ferrer (Ferrer),
LTJG. Kruzaldo Mabborang (Mabborang), LTJG. Ronald G. Magsino (Magsino), Ensign (ENS.) Commented [88]:
Dennis Velasco (Velasco), and ENS. Dominador Operio (Operio) – collectively, respondents. The
Ombudsman Investigator agreed with the findings of the Assistant Provincial Prosecutor. The matter
was thus ordered re-docketed for the purpose of conducting the proper administrative proceedings
against respondents for grave misconduct and abuse of authority.10 The Office of the Special
Prosecutor eventually filed with the Sandiganbayan a criminal case charging respondents as
accomplices to the crime of hazing.11chanroblesvirtuallawlibrary

Meanwhile, the RTC–Zambales issued an Order dismissing the Information against the principal
accused, Alvarez et al.12 The Order was later entered in the Book of Entries of Judgment.

Bayabos, Ferrer, Magsino, Doctor, and Operio (collectively, Bayabos et al.) filed a Motion to Quash
the Information.13 They argued that the Information did not contain all the essential elements of the
offense. They also pointed out that there was no allegation that the purported act had been made a
prerequisite for admission to the PMMA, especially considering that the victim had already been
accepted in the academy. Moreover, they stressed that there was no averment in the Information
that the PMMA was a fraternity, a sorority, or an organization. Also underscored was the absence in
the Information of any assertion that the alleged hazing was not part of the “physical, mental, and
psychological testing and training procedure and practices to determine and enhance the physical,
mental and psychological fitness of prospective regular members.” Furthermore, they emphasized
that there was no allegation that they were given prior written notice of the hazing and that they had
permitted the activity. Commented [89]:

As a final point, Bayabos et al. argued that the case against the principal accused had already been
dismissed with finality by the RTC. There being no more principals with whom they could have
cooperated in the execution of the offense, they asserted that the case against them must be
dismissed. Commented [90]:

The Special Prosecutor opposed14 the motion of Bayabos et al. He insisted that the Information
alleged the material facts that would sufficiently establish the presence of the essential ingredients
of the crime of accomplice to hazing. He also stressed that there was nothing in the law requiring
that the principals must be prosecuted first before a case could be filed against the accomplices.
The Comment/Opposition of the Special Prosecutor was, however, silent on the issue of whether
the Information contained an allegation that the supposed hazing had been made a prerequisite for
admission to the PMMA, and whether the academy was considered an “organization” within the
meaning of the Anti-Hazing Law.

Six days before Bayabos et al. were set to be arraigned,15 the Sandiganbayan issued the assailed
Resolution (SB Resolution I) quashing the Information and dismissing the criminal case against
them. According to the court, the fact that the charge against the principal accused Alvarez et al.
was dismissed with finality favorably carried with it the indictment against those charged as
accomplices, whose criminal responsibility was subordinate to that of the former. It stressed that
before there can be an accomplice, there must be a principal by direct participation, the latter being
the originator of the criminal design. In this case, as there were no principal perpetrators to speak
of, necessarily, there was no one else with whom they could have cooperated in the execution of the
crime of hazing. In view of the dismissal of the case against the principals, the court ruled that the
Information charging Bayabos et al. as accomplices could no longer stand on its own. Commented [91]:

In any event, the Sandiganbayan found that the Information charged no offense, and that the
allegations therein were mere conclusions of law. It also stressed that there was no averment that
the alleged hazing was not part of the “physical, mental and psychological testing and training
procedure and practices to determine and enhance the physical, mental and psychological fitness
of prospective regular members” of the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), pursuant to Section 1 of the law.16 It must be noted, though, that the
Sandiganbayan did not make any categorical determination that the PMMA was considered an
“organization” within the meaning of the Anti-Hazing Law. Commented [92]:

Six months after the Sandiganbayan issued its Resolution dismissing the criminal case against
Bayabos et al., the accused Velasco surrendered and then filed his own Motion to Quash,17
adopting the grounds raised by that court. His arraignment was set on 14 August 2006.18 However,
on 3 August 2006, the Sandiganbayan issued another Resolution (SB Resolution II) dismissing the
case against him. According to the court, since Velasco was similarly situated as Bayabos et al., the
Information against him must likewise be quashed in light of the reasoning laid out in SB Resolution
I. In the same Resolution, the Sandiganbayan ex proprio motu dismissed the case against Aris and
Mabborang (collectively, Velasco et al.), explaining that they, too, had been charged under the same
Information for the same offense.19 It is unclear from the records20 whether the accused Aris and
Mabborang surrendered or were arrested, or whether the Order of Arrest21 was recalled prior to the
dismissal of the case. Commented [93]:

Aggrieved, the Office of the Ombudsman, through the Special Prosecutor, filed with this Court on 13
March 2006 a Petition assailing SB Resolution I and, on 16 October 2006, another Petition
challenging SB Resolution II.

The Issues

The Special Prosecutor asks this Court to address a number of legal issues. After a thorough
evaluation of the Petitions, however, we cull the threshold issues needing to be addressed by this
Court as follows:chanRoblesvirtualLawlibrary
Whether the prosecution of respondents for the crime of accomplice to hazing can proceed
in spite of the dismissal with finality of the case against the principal accused

Whether the Information filed against respondents contains all the material averments for the
prosecution of the crime of accomplice to hazing under the Anti-Hazing Law

Our Ruling

With regard to the first issue, we agree with petitioner that the Sandiganbayan erred when it
dismissed outright the case against respondents, on the sole ground that the case against the
purported principals had already been dismissed. It is a settled rule that the case against those
charged as accomplices is not ipso facto dismissed in the absence of trial of the purported principals;
the dismissal of the case against the latter; or even the latter’s acquittal, especially when the
occurrence of the crime has in fact been established.22 In People v. Rafael,23 the Supreme Court
En Banc reasoned thus: “The corresponding responsibilities of the principal, accomplice, and
accessory are distinct from each other. As long as the commission of the offense can be duly
established in evidence, the determination of the liability of the accomplice or accessory can proceed
independently of that of the principal.” Accordingly, so long as the commission of the crime can be
duly proven, the trial of those charged as accomplices to determine their criminal liability can proceed
independently of that of the alleged principal.24chanroblesvirtuallawlibrary Commented [94]:

We note in the present case that Bayabos et al. merely presented the Order of Entry of Judgment25
dismissing the case against Alvarez et al. Nowhere is it mentioned in the order that the case was
dismissed against the alleged principals, because no crime had been committed. In fact, it does not
cite the trial court’s reason for dismissing the case. Hence, the Sandiganbayan committed an error
when it simply relied on the Order of Entry of Judgment without so much as scrutinizing the reason
for the dismissal of the case against the purported principals.

Nonetheless, as will be discussed below, we affirm the quashal of the Information against
respondents. Commented [95]:

Section 14, Article III of the Constitution, recognizes the right of the accused to be informed of the
nature and cause of the accusation against them. As a manifestation of this constitutional right, the
Rules of Court requires that the information charging persons with an offense be “sufficient.” One of
the key components of a “sufficient information” is the statement of the acts or omissions constituting
the offense charged, subject of the complaint.26 The information must also be crafted in a language
ordinary and concise enough to enable persons of common understanding to know the offense being
charged against them.27 This approach is intended to allow them to suitably \6543210-
=w33cxzprepare for their defense, as they are presumed to have no independent knowledge of the
facts constituting the offense they have purportedly committed.28 The information need not be in the
same kind of language used in the law relied upon.29chanroblesvirtuallawlibrary

At any time before entering a plea, an accused may assail the information filed with the court based
on the grounds enumerated in Section 3, Rule 117 of the Rules of Court, one of which is the claim
that the facts charged do not constitute an offense. In assessing whether an information must be
quashed on that ground, the basic test30 is to determine if the facts averred would establish the
presence of the essential elements of the crime as defined in the law. The information is examined
without consideration of the truth or veracity of the claims therein, as these are more properly proven
or controverted during the trial. In the appraisal of the information, matters aliunde are not taken into
account.

We quote the pertinent provision of the Anti-Hazing Law as follows:chanRoblesvirtualLawlibrary


Section 1. Hazing, as used in this Act, is an initiation rite or practice as a prerequisite for admission
into membership in a fraternity, sorority or organization by placing the recruit, neophyte or applicant
in some embarrassing or humiliating situations such as forcing him to do menial, silly, foolish and
other similar tasks or activities or otherwise subjecting him to physical or psychological suffering or
injury.

The term “organization” shall include any club or the Armed Forces of the Philippines, Philippine
National Police, Philippine Military Academy, or officer and cadet corp of the Citizen's Military
Training and Citizen's Army Training. The physical, mental and psychological testing and training
procedure and practices to determine and enhance the physical, mental and psychological fitness
of prospective regular members of the Armed Forces of the Philippines and the Philippine National
Police as approved by the Secretary of National Defense and the National Police Commission duly
recommended by the Chief of Staff, Armed Forces of the Philippines and the Director General of the
Philippine National Police shall not be considered as hazing for the purposes of this Act. Commented [96]:

Sec. 4. x x x x.

The school authorities including faculty members who consent to the hazing or who have actual
knowledge thereof, but failed to take any action to prevent the same from occurring shall be punished
as accomplices for the acts of hazing committed by the perpetrators. (Emphasis supplied) Commented [97]:
The crime of hazing is thus committed when the following essential elements are established: (1) a
person is placed in some embarrassing or humiliating situation or subjected to physical or
psychological suffering or injury; and (2) these acts were employed as a prerequisite for the person’s
admission or entry into an organization. In the crime of hazing, the crucial ingredient distinguishing
it from the crimes against persons defined under Title Eight of the Revised Penal Code is the infliction
by a person of physical or psychological suffering on another in furtherance of the latter’s admission
or entry into an organization.

In the case of school authorities and faculty members who have had no direct participation in the
act, they may nonetheless be charged as accomplices if it is shown that (1) hazing, as established
by the above elements, occurred; (2) the accused are school authorities or faculty members; and (3)
they consented to or failed to take preventive action against hazing in spite actual knowledge thereof.

First, we reject the contention of respondents that PMMA should not be considered an organization.
Under the Anti-Hazing Law, the breadth of the term organization includes – but is not limited to –
groups, teams, fraternities, sororities, citizen army training corps, educational institutions, clubs,
societies, cooperatives, companies, partnerships, corporations, the PNP, and the AFP.31 Attached
to the Department of Transportation and Communications,32 the PMMA is a government-owned
educational institution33 established for the primary purpose of producing efficient and well-trained
merchant marine officers.34 Clearly, it is included in the term organization within the meaning of the
law.

We also disagree with the Sandiganbayan ruling that the quashal of the Information was warranted
for failure to allege that the purported acts were not covered by the exemption relating to the duly
recommended and approved “testing and training procedure and practices” for prospective regular
members of the AFP and the PNP. This exemption is an affirmative defense in, not an essential
element of, the crime of accomplice to hazing. It is an assertion that must be properly claimed by the
accused, not by the prosecution. The reason for this rule is that the accused carry the burden of
proof in establishing by clear and convincing evidence that they have satisfied the requirements
thereof.35 Thus, the prosecution’s failure to point out in the Information that the exception is
inapplicable would not justify the quashal of that Information.

Nevertheless, we find – albeit for a different reason – that the Motion to Quash must be granted, as
the Information does not include all the material facts constituting the crime of accomplice to hazing.
The Information charging respondents reads as follows:chanRoblesvirtualLawlibrary
The undersigned Assistant Special Prosecutor, Office of the Special Prosecutor, hereby accuses
[RADM] Virginio R. Aris, [LTSG.] Dominador D. BAYABOS, [LTJG.] Manny G. Ferrer, [LTJG.] Ronald
G. Magsino, [LTJG.] Kruzaldo G. Mabborang, [LTJG.] Gerry P. Doctor, [ENS.] Dominador B. Operio,
Jr., and [ENS.] Dennis S. Velasco, as accomplices for Violation of R.A. 8049 (Anti-Hazing Law),
committed as follows:chanRoblesvirtualLawlibrary Commented [98]:

That during the period from the 2nd of May 2001 up to the 3rd of May 2001, inside the campus of
the Philippine Merchant Marine Academy (PMMA), in the Municipality of San Narciso, Province of
Zambales, Philippines, and within the jurisdiction of this Honorable Court accused RADM Virginio R.
Aris, President of PMMA with [Salary Grade (SG) 29]; LTSG. Dominador D. BAYABOS,
Commandant of the Cadets; (LTJG.) Manny G. Ferrer, 1st Batallion Officer; LTJG. Ronald G.
Magsino, Security Officer; LTJG. Kruzaldo G. Mabborang, 2nd Battalion Officer; LTJG. Gerry P.
Doctor, Batl. Mast.; ENS. Dominador B. Operio, Jr., 1st Battalion Company Officer; and ENS. Dennis
S. Velasco, Mess Officer, all public officers, conspiring, confederating and mutually helping one
another, committing the offense in relation to office and while in the performance of their duties as
such public officers being the school authorities and/or faculty members did then and there willfully,
unlawfully and criminally, consent or have actual knowledge of the hazing perpetrated by the
principal accused, all First Class Midshipmen, against probationary midshipman FERNANDO
BALIDOy, JR. during the school’s Indoctrination and Orientation; and, fail to take any action to
prevent the occurrence of the hazing and the infliction of psychological and physical injuries against
said FERNANDO BALIDOy, JR. thereby causing the instantaneous death of the latter, to the
damage and prejudice of the heirs of said FERNANDO BALIDOy, JR.36
As can be gleaned from the above, the indictment merely states that psychological pain and physical
injuries were inflicted on the victim. There is no allegation that the purported acts were employed as
a prerequisite for admission or entry into the organization. Failure to aver this crucial ingredient would
prevent the successful prosecution of the criminal responsibility of the accused, either as principal
or as accomplice, for the crime of hazing. Plain reference to a technical term37 – in this case, hazing
– is insufficient and incomplete, as it is but a characterization of the acts allegedly committed and
thus a mere conclusion of law. Section 6, Rule 110 of the Rules of Court, expressly states that the
information must include, inter alia, both “the designation of the offense given by the statute” and
“the acts or omissions complained of as constituting the offense.” The Special Prosecutor’s belated
argument38 in his Petition before this Court that the successful completion of the indoctrination and
orientation program was used as a prerequisite for continued admission to the academy – i.e.,
attainment of active midshipman status – does not cure this defect in the Information. Thus, the
Information must be quashed, as the ultimate facts it presents do not constitute the crime of
accomplice to hazing.

Finally, we reject the Special Prosecutor’s claim that the Sandiganbayan should just have ordered
the filing of another information or the correction of the defect by amendment, instead of dismissing
the case outright.39 Indeed, Section 4, Rule 117 of the Rules of Court, provides that if a motion to
quash is based on the ground that the facts charged do not constitute an offense, the court shall give
the prosecution a chance to correct the defect by amendment. However, the provision also states
that if the prosecution fails to make the amendment, the motion shall be granted. Here, we point out
that the Special Prosecutor insisted in his Comment on the Motion to Quash40 that there was no
defect in the Information. Neither has he filed a new information after the motion was sustained,
pursuant to Section 5, Rule 117. Thus, the Sandiganbayan was correct in ordering the quashal of
the Information and the eventual dismissal of the case.

This does not mean, however, that the Special Prosecutor is now precluded from filing another
information. Section 6, Rule 117, specifically states that an order sustaining a motion to quash would
not bar another prosecution. That is, of course, unless respondents are able to prove that the criminal
action or liability has been extinguished, or that double jeopardy has already attached.

Given the foregoing, the Court no longer sees the necessity to pass upon the other issues raised by
petitioner.

WHEREFORE, the petition for review on certiorari in G.R. No. 171222 is hereby DENIED and the
petition for certiorari in G.R. No. 174786, DISMISSED. The dismissal of the case in Sandiganbayan
Resolutions dated 27 January 2006 and 3 August 2006 in Criminal Case No. 28339 are thus
AFFIRMED.

SO ORDERED.

9. G.R. No. 181111, August 17, 2015

JACKSON PADIERNOS Y QUEJADA, JACKIE ROXAS Y GERMAN AND ROLANDO MESINA Y


JAVATE, Petitioners, v. PEOPLE OF THE PHILIPPINES,

Before the Court is a petition for review on certiorari filed by petitioners Jackson Padieraos y Quejada
(Padiernos), Jackie Roxas y German (Roxas) and Rolando Mesina y Javate (Mesina). The
petitioners seek the reversal of the Court of Appeals' (CA) decision1 dated May 10, 2007 and
resolution2 dated December 20, 2007 in CA-G.R. CR No. 28920. The assailed CA rulings affirmed
with modification the decision of the Regional Trial Court (RTC), Branch 66, Baler, Aurora in Criminal
Case No. 3122.

The petitioners were charged as accessories to the crime of illegal possession of lumber, in violation
of Presidential Decree (P.D.) No. 705 or the Forestry Reform Code of the Philippines. According to
the Information, the petitioners took away the truck that carried the lumber to prevent its use as
evidence and to avoid its confiscation and forfeiture. The Information specifically states as follows: Commented [99]:

That at about 6:00 o'clock in the morning on November 15, 2002, in Caragsacan, Dingalan, Aurora,
and within the jurisdiction of this Honorable Court, the aforesaid principals, confederating together
and mutually helping one another, did then and there, unlawfully, feloniously and willfully have in
their possession and control 818 pieces of lumber with a total volume of 10,253 board feet and
valued at P133,289.00 loaded on a ten-wheeler truck with Plate No. TFZ-747 and owned by the
accused Santiago Castillo y Cruz without any permit, license or documents from the proper authority
and that at about 3:00 o'clock in the afternoon on the following day, November 16, 2002, the
aforesaid accessories, confederating together and mutually helping one another, did then and there
unlawfully, feloniously and willfully take and carry away the aforementioned ten wheeler truck with
Plate No. TFZ-747 so it could not be used as evidence and avoid confiscation and forfeiture in favor
of the government as tool or instrument of the crime, [emphasis and italics supplied]

CONTRARY TO LAW.
Accused Santiago Castillo (Santiago), Frederico Castillo (Frederico), and Roger Mostera (Mostera)
remain at large; accused Eddie Gatdula (Gatdula) pleaded not guilty as principal to the crime; while
petitioners Padiernos, Mesina, and Roxas pleaded not guilty as accessories to the crime.

Prosecution's evidence

The presented evidence of the prosecution shows that on November 15, 2002, the Department of
Environment and Natural Resources Officer (DENRO) Felimon Balico (Balico) approached a truck
loaded with lumber, which was parked at a national highway in Dingalan, Aurora (Dingalan)3 The
truck bore the name "JEROME" with Plate No. TFZ-747. Balico requested from the truck driver,
Frederico, and the truck helper, Mostera, the lumber's supporting documents but they failed to
produce any. Commented [100]:

Balico reported the matter to SPO4 Ramil Gamboa (Gamboa) and SPO4 Romulo Derit. Thereafter,
he proceeded to the DENR office to report the incident. Some of the DENROs represented that the
transportation of the seized lumber had the required permit but they, too, failed to produce any
supporting document. Commented [101]:

The DENRO group - composed of Balico, Tarcila Vivero (Vivero) and Rodolfo Tumagan (Tumagan)
- and the policemen, Gamboa and Romulo Derit, guarded the truck loaded with lumber.4

The DENRO group decided to transfer the truck and the lumber to the police station at Poblacion.
They transferred the lumber first from November 15 to November 16, 2002, and left the truck at the
national highway in Dingalan, guarded by the DENROs and some police officers.5

On November 16, 2002, accused Gatdula, Santiago, and petitioners Mesina, Roxas, and Padiernos
arrived at the place where the truck was being held in custody.6 Commented [102]:

Santiago, who claimed ownership of the truck,7 agreed with the DENROs and the police officers to
bring the truck to the police station. Santiago gave the truck key to Mesina who volunteered to drive
the truck; while Padiernos asked Balico where the seized lumbers were.8

Mesina started the engine and Roxas, Santiago, and Padiernos immediately got on board at the
front of the truck. The DENRO group also got on board at the back of the truck. SPO2 Renato
Mendoza (Mendoza) and his companion, PO1 John Fajardo (Fajardo) follow on a motorcycle.
Since the truck was then parked opposite the direction to the police station, Balico thought that
Mesina would maneuver the truck so that they could proceed to the police station. To their surprise,
Mesina increased the truck's speed and headed towards the direction of Nueva Ecija, leaving behind
their two policemen escorts9 who chased the truck and fired three warning shots.10

As the truck sped faster, Balico yelled "Saklolo! Saklolo!" but the truck maintained its speed. SPO2
Mendoza corroborated this testimony; he and Fajardo saw the three DENROs waving but could not
hear what they were saying.

When the truck had exited Dingalan, SPO2 Mendoza and Fajardo decided not to pursue the truck
anymore and simply reported the incident to the Philippine Army stationed at Brgy. Tanawan.

The Philippine Army blocked the road with a 50-caliber machine gun and flagged down the truck at
Brgy. Bagting, Gabaldon, Nueva Ecija.11

As the truck passengers alighted, petitioner Padiernos uttered bad words to them, saying that they
had no right to apprehend the truck and the lumber.12

Police officers Gamboa, Joemar Balmores, Sagudang, Fajardo, and Mendoza13 immediately
proceeded to Brgy. Bagting where they found the DENRO group, Padiernos, and Roxas. The
DENROs and the policemen proceeded back to Dingalan, with police officer Gamboa driving the
truck to the police station compound. Commented [103]:

Evidence for the defense

Mesina testified that on November 16, 2002, he was watching television with his wife and children
when his former employer, Santiago, arrived and asked him to bring the latter's truck to Cabanatuan
City. He refused Santiago's request because he knew that the truck had been engaged in illegal
activities; particularly, the truck had been previously loaded with lumber that were confiscated.14

Santiago insisted and assured him that he would take care of everything and that there was really
no problem with the truck. Mesina finally agreed and rode in Santiago's car. Santiago asked him to
fetch Roxas to accompany them.15

Roxas was resting in his house when Santiago and Mesina arrived. Santiago asked Roxas if he
could drive his truck to Cabanatuan City.16 Roxas refused because he had already heard of the
truck's apprehension,17 but he finally relented after Santiago assured him that there was no problem
with the truck. They proceeded to Caragsacan, Dingalan where the truck was parked.18 On cross-
examination, Roxas testified that he knew very well that the vehicle was a "hot" truck but he relied
on Santiago's claim that the problem already been settled.19

On their way to Caragsacan, Dingalan, they saw Padiernos at the waiting shed of Aplayang Malaki,
Dingalan.20 According to Padiernos, he had been waiting for a ride to Cabanatuan City from 12:30
to 1:30 p.m. but only Santiago's group came by.21 Padiernos hitched a ride with them after learning
that they would bring Santiago's truck to Cabanatuan City.22

Padiernos testified that he only learned where the truck was parked when they reached
Caragsacan.23 Commented [104]:

On reaching the place where the truck was parked, they all alighted from the car and walked towards
the back of the truck; Padiernos crossed the street. Mesina saw Santiago talk to DENRO Tumagan
and several other persons for about 25 to 30 minutes.24
Thereafter, Santiago handed the truck keys to Mesina.25 Padiernos seated himself in the front cab
of the truck with Santiago and Roxas, while Mesina took the driver's seat.26 Mesina drove the car
towards Cabanatuan City upon Santiago's instruction.27

The petitioners unanimously testified that they did not hear people shouting or tapping on the truck
to stop them.28 They also did not notice any motorcycle following them as the truck's side mirrors
were broken. They did not reach Cabanatuan City because the Philippine Army flagged them
down.29

After the incident, Padiernos boarded a jeepney bound for Cabanatuan City while Roxas and Mesina
boarded a jeepney bound for Dingalan.30

The RTC's ruling

The RTC convicted petitioners Padiernos, Mesina and Roxas as accessories to the crime of violation
of P.D. 705. Commented [105]:

The RTC ruled that the petitioners had a common design to take away the truck that earlier had been
used in violating P.D. No. 705 or the Forestry Reform Code.32

The RTC found that the testimonies of the prosecution witnesses were categorical, straightforward,
and consistent; they had no improper motive to testify falsely against the petitioners.33 Thus, the
RTC disregarded the petitioners' defense that they did not intentionally take away the truck.34

The RTC also found that the petitioners' testimonies and admissions established their prior
knowledge that the truck had been previously confiscated for illegal transport of forest products. This
explains the reluctance of Mesina and Roxas to go with Santiago in getting the truck.35

The RTC further ruled that Padiernos' defense of denial fails in view of Balico's testimony that
Padiernos gave the DENROs a "tongue-lashing" as they had no right to apprehend the truck and its
cargo.36 Padiernos' knowledge of the status of the truck is also undeniable as he admitted his
familiarity with the townsfolk of Dingalan and its rampant problem of illegal transport of forest
products. The RTC concluded that the incident and the personalities involved could not have
escaped Padiernos' notice, yet he still went with them to get the truck.37

Finally, the RTC disregarded the petitioners' claim that they did not hear the policemen's warning
shots and the DENROs' shouts because of the noisy engine and the defective windows of the truck.
The RTC had observed during its ocular inspection of the truck that both windows were in order and
sounds outside could be clearly heard even with a running engine.38

The CA's ruling

The CA affirmed the RTC's decision and adopted its factual findings, but modified the penalty
imposed on the petitioners.39 Commented [106]:

The CA considered the subject truck as an "instrument" in the commission of the offense, within the
meaning of Article 19, paragraph 2 of the Revised Penal Code (RPC). While the lumber had already
been unloaded and placed in police custody, the truck still served as the essential link to the
discovery of the loaded undocumented lumber. Similarly, its presentation as evidence is material in
proving the commission of the offense of violation of P.D. 705, as amended.40

The CA added that since the petitioners' violation of P.D. 705 is mala prohibita, their intent, motive,
or knowledge need not be shown. Nevertheless, their defense of denial must fail in view of the
evidence on record and their own admissions that they were aware of the truck's involvement in an
illegal activity at the time that they drove it towards Nueva Ecija.41

The prosecution had also clearly established Padiernos's close association with Santiago, Roxas,
and Mesina. Padiernos previously facilitated Santiago's application for mayor's permit as a lumber
dealer; Roxas is a family friend of Padiernos and his father is Padiernos's driver, while Mesina and
Padiernos' are long-time acquaintances.42

The Parties' Arguments

The petitioners argue that they could not be held liable as accessories for violation of P.D. 705
because the DENROs and the police authorities had already discovered the crime and had, in fact,
control over the truck when the petitioners drove it towards Nueva Ecija.43 Article 19 of the RPC
only punishes accessories who prevent the discovery of the crime.44

On the other hand, the respondent maintains that the petitioners' acts were aimed at preventing the
discovery of the crime. The respondent alleges that without the truck, the accused in the present
case could easily produce the necessary transportation documents to account for the entire volume
of the confiscated lumber.45 The respondent refers to the testimony of James Martinez of CENRO
Dingalan who tried to make it appear that the seized lumber had the proper transportation permit for
8,254 board feet and 261 pieces of lumber. This transportation permit did not tally, however, with the
actual volume of the confiscated lumber of 10,253 board feet, totaling 818 pieces.46

The Court's Ruling

We emphasize at the outset the well-settled doctrine that an appeal throws the whole case wide
open for review. An appeal therefore empowers, and even obligates, the appellate court to correct
errors as may be found in the appealed judgment even if these errors have not been raised. It is
likewise settled that when an accused appeals, he opens the whole case for a new trial.47

The Court is therefore not precluded from determining the correct criminal liability of the appealing
accused, and from imposing the corresponding punishment in accordance with the charges in the
Information and the crime proved during trial.

Thus, in People v. Manalili et al.,48 the Court held that since the Information in that case contained
a specific allegation of every fact and circumstance necessarily constituting both the crimes of illegal
possession of firearms and of murder, the separate crime of multiple murder may be validly taken
into account49 in the resolution of the appeal before the Court, although the appellants have been
acquitted of illegal possession of firearms. The Court ruled that the appellants in that case were fairly
apprised of the nature of the crime of multiple murder and granted a fair opportunity to defend
themselves.

Even with this premise, we find that insofar as the petitioners are concerned, the facts alleged in the
Information and the crime proved in the present case do not make the petitioners liable as
accessories for violation of P.D. 705. They are, however, liable for violation of Section 1(b) of P.D.
1829.

The petitioners are not liable as accessories to the crime

The well-settled doctrine is that the allegations in the Information determine the nature of the offense,
and not the technical name that the public prosecutor assigns in the preamble of the Information.
From a legal point of view, and in a very real sense, the accused is not concerned with the technical
name of the crime of which he stands charged. It in no way aids him in a defense on the merits. His
attention should be directed and his interest should be on the facts alleged. The real question is not
"did he commit a crime given in the law with some technical and specific name," but "did he perform
the acts alleged in the body of the information in the manner therein set forth."50
In the present case, the Information charges the petitioners of committing the following acts:
xxx the aforesaid accessories, confederating together and mutually helping one another, did then
and there unlawfully, feloniously and willfully take and carry away the aforementioned ten wheeler
truck with Plate No. TFZ-747 so it could not be used as evidence and avoid confiscation and forfeiture
in favor of the government as tool or instrument of the crime.
Applying the doctrine, the controlling charge against the petitioners is not the allegation that they
were accessories to the crime, which is merely the public prosecutor's conclusion of law or the
technical name of an accused's criminal participation under Article 19 of the RPC, but the factual
charges against them. In short, their alleged acts control in defining the crime for which they should
stand trial.

These material factual allegations pertain to their act of conspiring with each other to take and carry
away the subject truck so that it could not be used as evidence and to avoid its confiscation and
forfeiture in favor of the government as tool or instrument of the crime. Notably, the petitioners had
been sufficiently apprised of these factual allegations, against which they should defend themselves.

Reading the facts alleged in the Information and proved at the trial, in relation with the legal
definition of "accessories" under Article 19 of the RPC, we find that the RTC and the CA erred
in convicting the accused as accessories to the crime of violation of P.D. 705.

Article 19, paragraph 251 defines "accessories" as those who, with knowledge of the commission of
the crime and without having participated therein, either as principals or accomplices, take part
subsequent to its commission by concealing or destroying the body of the crime, its effects or
instruments, in order to prevent its discovery.

Under this provision, the punished acts should have been committed for the purpose of preventing
the discovery of the crime.52

In the present case, the crime punishable under P.D. 705 - the illegal possession of lumber - had
already been discovered at the time the petitioners took the truck. This discovery led to the
confiscation of the truck and the loaded lumber on November 15, 2002. The petitioners took the truck
on November 16, 2002, after its confiscation.

In these lights, the petitioners are not liable as accessories to the crime charged in the Information
as the legal definition of the technical term "accessories" does not coincide with the factual
allegations in the Information that serves as the actual criminal charge against the petitioners.

The factual allegations in the Information constitute the crime of obstruction of justice under Section
1(b) of P.D. 1829

The petitioners, however, cannot go scot-free. The factual allegations in the Information, while not
constituting an offense committed by accessories under Article 19, paragraph 2 of the RPC,
constitute instead the criminal offense of obstruction of justice, which is defined under Section 1(b)
of P.D. No. 1829 entitled "Penalizing Obstruction of Apprehension and Prosecution of Criminal
Offenders."

P.D. 1829 addresses the necessity of penalizing acts which obstruct or frustrate or tend to obstruct
or frustrate the successful apprehension and prosecution of criminal offenders.

Under Section 1(b) of P.D. 1829, the crime of obstruction of justice is committed through the following
acts:
Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to
6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs,
impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of
criminal cases by committing any of the following acts:chanRoblesvirtualLawlibrary Commented [107]:
xxxx

(b) altering, destroying, suppressing or concealing any paper, record, document, or object, with intent
to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation
of or official proceedings in criminal cases, or to be used in the investigation of, or official proceedings
in criminal cases; xxx" [emphasis supplied]
The factual allegations in the Information, as duly proved during trial, show that the petitioners' acts
actually constituted a violation of Section 1(b) above.

First, the Information duly alleges all the essential elements of the crime of obstruction of justice
under Section 1(b).

The factual allegations in the Information clearly charge the accused of taking and carrying away the
truck so that it could not be used as evidence and to avoid its confiscation and forfeiture in favor of
the government as a tool or instrument of the crime.

In the present case, the truck that carried the undocumented lumber serves as material evidence
that is indispensable in the criminal investigation and prosecution for violation of P.D. 705.
Particularly, the truck is an indispensable link to the persons involved in the illegal
possession/transportation of the seized lumber as the permit for the transportation of the lumber
necessarily involves the truck and the lumber. According to DENR forest ranger Rogelio Pajimna,53
the transport of lumber should be covered with supporting documents that should be in the
possession of the transporter.

Second, the petitioners deliberately took the truck or "suppressed" this particular evidence. The term
"suppress" means to subdue or end by force.54

Specifically, the petitioners intentionally suppressed the truck as evidence, with the intent to impair
its availability and prevent its use as evidence in the criminal investigation or proceeding for violation
of P.D. 705. This intent was duly proved during trial.

It is undisputed that Santiago owns the truck, which serves as his link to the illegal
possession/transport of the seized lumber. Santiago had every reason and motive to take his truck
after its confiscation. Without the truck, Santiago could be exculpated and the forthcoming criminal
investigation or proceedings for violation of P.D. 705 would be frustrated.

The petitioners' intent to take and carry away the truck is established by their knowledge of the status
of the truck and their commission of the crime at Santiago's prompting.

Notably, both the RTC and the CA correctly considered the testimonies of the witnesses and the
petitioners' admissions in ruling that the petitioners knew that the truck had been involved in the
illegal transportation/possession of the seized lumber.

Mesina admitted that he knew the truck's involvement in illegal activities as it had been previously
loaded with lumber that was confiscated.

According to Mesina, Roxas also initially refused to go with them because he already heard the news
of the truck's apprehension. Roxas admitted that he only agreed to join Santiago and Mesina, after
being assured that there was no problem with the truck.

Padiernos' demeanor after the army flagged them down establishes his knowledge of the truck's
involvement with the seized lumber. Padiernos uttered bad words at the DENROs, saying they had
no right to apprehend the truck and the lumber. This testimony, together with his close association
with the other petitioners, destroys his flimsy defense of denial.
The RTC's findings during its ocular inspection of the truck also prove that the petitioners deliberately
drove the truck to Nueva Ecija despite evident knowledge of the policemen's warning shots, tapping,
and the DENROs shouting for help from the back of the truck.

Clearly, these testimonies, the petitioners' admissions, and the findings of the trial court negate the
petitioners' defense of denial of their intent to take the truck and their knowledge of the truck's
involvement in an illegal activity.

The unanimous factual findings of the RTC and the CA - such as the petitioners' close association
with each other, their flimsy defense of denial of their intent to take away the truck, and the totality
of their acts showing their common design to take the truck - lead us to conclude that the petitioners
had indeed mutually conspired with one another to take away the truck to suppress it from being
used as evidence in the criminal investigation or proceeding for violation of P.D. 705.

Since the crime charged in the Information and the crime proved during trial point to the petitioners'
violation of P.D. 1829, we reverse the CA's findings and find the petitioners guilty of Section 1(b) of
P.D. 1829.

Under Section 1 of the same law, the penalty for the crime of obstruction of justice is prision
correccional in its maximum period, or a fine ranging from P1,000.00 to P6,000.00 pesos, or
both.55chanroblesvirtuallawlibrary

WHEREFORE, we GRANT the petition and REVERSE the Court of Appeals' decision dated May
10, 2007, and its resolution dated December 20, 2007. We find petitioners Jackson Padiernos y
Quejada, Jackie Roxas y German, and Rolando Mesina y Javate GUILTY for violation of Section
1(b) of P.D. 1829. They are hereby sentenced to suffer the penalty of prision correccional for 4 years,
9 months, and 11 days to 5 years, 4 months, and 20 days.

SO ORDERED.chanroblesvirtuallawlibrary

10. G.R. No. 183805 July 3, 2013

JAMES WALTER P. CAPILI, PETITIONER,


vs.
PEOPLE OF THE PHILIPPINES AND SHIRLEY TISMO-CAPILI, RESPONDENTS.

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the
reversal of the Decision1 dated February 1, 2008 and Resolution2 dated July 24, 2008 of the Court
of Appeals (CA) in CA-G.R. CR No. 30444.

The factual antecedents are as follows:

On June 28, 2004, petitioner was charged with the crime of bigamy before the Regional Trial Court
(RTC) of Pasig City in an Information which reads:

On or about December 8, 1999, in Pasig City, and within the jurisdiction of this Honorable Court, the
accused being previously united in lawful marriage with Karla Y. Medina-Capili and without said
marriage having been legally dissolved or annulled, did then and there willfully, unlawfully and
feloniously contract a second marriage with Shirley G. Tismo, to the damage and prejudice of the
latter.

Contrary to law.3

Petitioner thereafter filed a Motion to Suspend Proceedings alleging that: (1) there is a pending civil
case for declaration of nullity of the second marriage before the RTC of Antipolo City filed by Karla
Y. Medina-Capili; (2) in the event that the marriage is declared null and void, it would exculpate him
from the charge of bigamy; and (3) the pendency of the civil case for the declaration of nullity of the
second marriage serves as a prejudicial question in the instant criminal case.

Consequently, the arraignment and pre-trial were reset by the RTC of Pasig City, in view of the filing
of the Motion to Suspend Proceedings filed by petitioner.

In the interim, the RTC of Antipolo City rendered a decision declaring the voidness or incipient
invalidity of the second marriage between petitioner and private respondent on the ground that a
subsequent marriage contracted by the husband during the lifetime of the legal wife is void from the
beginning.

Thereafter, the petitioner accused filed his Manifestation and Motion (to Dismiss) praying for the
dismissal of the criminal case for bigamy filed against him on the ground that the second marriage
between him and private respondent had already been declared void by the RTC.

In an Order4 dated July 7, 2006, the RTC of Pasig City granted petitioner’s Manifestation and Motion
to Dismiss, to wit:

The motion is anchored on the allegation that this case should be dismissed as a decision dated
December 1, 2004 had already been rendered by the Regional Trial Court of Antipolo City, Branch
72 in Civil Case No. 01-6043 (entitled: "Karla Medina-Capili versus James Walter P. Capili and
Shirley G. Tismo," a case for declaration of nullity of marriage) nullifying the second marriage
between James Walter P. Capili and Shirley G. Tismo and said decision is already final.

In the opposition filed by the private prosecutor to the motion, it was stated, among others, that the
issues raised in the civil case are not similar or intimately related to the issue in this above-captioned
case and that the resolution of the issues in said civil case would not determine whether or not the
criminal action may proceed.

WHEREFORE, after a judicious evaluation of the issue and arguments of the parties, this Court is
of the humble opinion that there is merit on the Motion to dismiss filed by the accused as it appears
that the second marriage between James Walter P. Capili and Shirley G. Tismo had already been
nullified by the Regional Trial Court, Branch 72 of Antipolo City which has declared "the voidness,
non-existent or incipient invalidity" of the said second marriage. As such, this Court submits that
there is no more bigamy to speak of.

SO ORDERED.

Aggrieved, private respondent filed an appeal before the CA.

Thus, in a Decision5 dated February 1, 2008, the CA reversed and set aside the RTC’s decision.
The fallo reads:

WHEREFORE, premises considered, the Order dated 07 July 2006 of the Regional Trial Court of
Pasig City, Branch 152 in Crim. Case No. 128370 is REVERSED and SET ASIDE. The case is
remanded to the trial court for further proceedings. No costs.

SO ORDERED.6

Petitioner then filed a Motion for Reconsideration against said decision, but the same was denied in
a Resolution[7] dated July 24, 2008.

Accordingly, petitioner filed the present petition for review on certiorari alleging that:

THERE IS NO LEGAL BASIS FOR THE COURT OF APPEALS TO DISREGARD EXISTING


JURISPRUDENCE PRONOUNCED BY THIS HONORABLE SUPREME COURT AND TO
REVERSE THE ORDER DATED JULY 7, 2006 OF THE TRIAL COURT (REGIONAL TRIAL
COURT, PASIG CITY, BRANCH 152) ISSUED IN CRIMINAL CASE NO. 128370 GRANTING THE
MOTION TO DISMISS THE CASE OF BIGAMY AGAINST PETITIONER, INASMUCH AS THE
ISSUANCE OF THE SAID ORDER IS BASED ON THE FINDINGS AND/OR FACTS OF THE CASE
IN THE DECISION OF THE REGIONAL TRIAL COURT OF ANTIPOLO CITY, BRANCH 72, IN
CIVIL CASE NO. 01-6043 AND THE CONCLUDING AND DISPOSITIVE PORTION IN THE SAID
DECISION WHICH STATES THAT, AFTER PERUSAL OF THE EVIDENCE ON RECORD AND
THE TESTIMONIES OF WITNESSES X X X, THE MARRIAGE BETWEEN PETITIONER JAMES
WALTER P. CAPILI AND PRIVATE RESPONDENT SHIRLEY G. TISMO, IS HEREBY NULL AND
VOID.

THE COURT OF APPEALS GRAVELY ERRED AND ABUSED ITS DISCRETION AMOUNTING TO
LACK OF JURISDICTION IN HOLDING THAT THE DECLARATION OF NULLITY OF MARRIAGE
BETWEEN PETITIONER JAMES WALTER P. CAPILI AND SHIRLEY G. TISMO BY THE
REGIONAL TRIAL COURT OF ANTIPOLO CITY, BRANCH 72 IN ITS DECISION IN CIVIL CASE
NO. 01-6043, IS ON THE GROUND THAT IT IS BIGAMOUS IN NATURE, DESPITE THE
ABSENCE OF ANY SUCH FINDINGS OR FACTS ON WHICH IT IS BASED IN VIOLATION OF
ARTICLE VIII, SECTION 14 OF THE 1987 CONSTITUTION, AND IN CONCLUDING THAT THE
SAID DECLARATION OF NULLITY OF MARRIAGE IS NOT A GROUND FOR DISMISSAL OF THE
BIGAMY CASE AGAINST THE PETITIONER, WHICH RULING IS NOT IN ACCORDANCE WITH
THE FACTS OF THE CASE OF THE SAID DECISION AND WHICH IS CONTRARY TO
APPLICABLE LAWS AND ESTABLISHED JURISPRUDENCE.

THE CASE OF TENEBRO V. COURT OF APPEALS SPEAKS FOR ITSELF. IT IS AN EXCEPTION


TO EXISTING JURISPRUDENCE INVOLVING DECLARATION OF NULLITY OF MARRIAGE AND
IS APPLICABLE ONLY TO THE SET OF FACTS IN THE SAID CASE, AND THE GROUND FOR
DECLARATION OF NULLITY OF MARRIAGE IS PSYCHOLOGICAL INCAPACITY, HENCE,
THERE IS NO LEGAL BASIS FOR ABANDONING EXISTING JURISPRUDENCE AS WHERE IN
THE INSTANT CASE THE GROUND FOR DECLARATION OF NULLITY OF MARRIAGE IS
VIOLATIVE OF ARTICLE 3 IN RELATION TO ARTICLE 4 OF THE FAMILY CODE.

THE COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING THAT THE USE BY
RESPONDENT SHIRLEY G. TISMO OF THE SURNAME "CAPILI" IS ILLEGAL INASMUCH AS
THE DECISION OF THE REGIONAL TRIAL COURT OF ANTIPOLO CITY, BRANCH 72 IN CIVIL
CASE NO. 01-6043 DECLARING NULL AND VOID THE MARRIAGE BETWEEN JAMES WALTER
P. CAPILI AND SHIRLEY G. TISMO HAD LONG BECOME FINAL AND UNAPPEALABLE AS OF
THE DATE OF THE SAID DECISION ON DECEMBER 1, 2004 AND DULY RECORDED IN THE
RECORDS OF ENTRIES IN THE CORRESPONDING BOOK IN THE OFFICE OF THE CIVIL
REGISTRAR OF PASIG CITY AND THE NATIONAL STATISTICS OFFICE.8

In essence, the issue is whether or not the subsequent declaration of nullity of the second marriage
is a ground for dismissal of the criminal case for bigamy.

We rule in the negative.

Article 349 of the Revised Penal Code defines and penalizes the crime of bigamy as follows:

Art. 349. Bigamy. – The penalty of prision mayor shall be imposed upon any person who shall
contract a second or subsequent marriage before the former marriage has been legally dissolved,
or before the absent spouse has been declared presumptively dead by means of a judgment
rendered in the proper proceedings.

The elements of the crime of bigamy, therefore, are: (1) the offender has been legally married; (2)
the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent
spouse could not yet be presumed dead according to the Civil Code; (3) that he contracts a second
or subsequent marriage; and (4) that the second or subsequent marriage has all the essential
requisites for validity.9
In the present case, it appears that all the elements of the crime of bigamy were present when the
Information was filed on June 28, 2004.

It is undisputed that a second marriage between petitioner and private respondent was contracted
on December 8, 1999 during the subsistence of a valid first marriage between petitioner and Karla
Y. Medina-Capili contracted on September 3, 1999. Notably, the RTC of Antipolo City itself declared
the bigamous nature of the second marriage between petitioner and private respondent. Thus, the
subsequent judicial declaration of the second marriage for being bigamous in nature does not bar
the prosecution of petitioner for the crime of bigamy.

Jurisprudence is replete with cases holding that the accused may still be charged with the crime of
bigamy, even if there is a subsequent declaration of the nullity of the second marriage, so long as
the first marriage was still subsisting when the second marriage was celebrated.

In Jarillo v. People,10 the Court affirmed the accused’s conviction for bigamy ruling that the crime of
bigamy is consummated on the celebration of the subsequent marriage without the previous one
having been judicially declared null and void, viz.:

The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior
to the declaration of nullity, the crime had already been consummated. Moreover, petitioner’s
assertion would only delay the prosecution of bigamy cases considering that an accused could
simply file a petition to declare his previous marriage void and invoke the pendency of that action as
a prejudicial question in the criminal case. We cannot allow that.

The outcome of the civil case for annulment of petitioner’s marriage to [private complainant] had no
bearing upon the determination of petitioner’s innocence or guilt in the criminal case for bigamy,
because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting
at the time the second marriage is contracted.

Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until
declared otherwise in a judicial proceeding. In this case, even if petitioner eventually obtained a
declaration that his first marriage was void ab initio, the point is, both the first and the second
marriage were subsisting before the first marriage was annulled.11

In like manner, the Court recently upheld the ruling in the aforementioned case and ruled that what
makes a person criminally liable for bigamy is when he contracts a second or subsequent marriage
during the subsistence of a valid first marriage. It further held that the parties to the marriage should
not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment
of competent courts and only when the nullity of the marriage is so declared can it be held as void,
and so long as there is no such declaration the presumption is that the marriage exists. Therefore,
he who contracts a second marriage before the judicial declaration of the first marriage assumes the
risk of being prosecuted for bigamy.12

Finally, it is a settled rule that the criminal culpability attaches to the offender upon the commission
of the offense, and from that instant, liability appends to him until extinguished as provided by law.13
It is clear then that the crime of bigamy was committed by petitioner from the time he contracted the
second marriage with private respondent. Thus, the finality of the judicial declaration of nullity of
petitioner’s second marriage does not impede the filing of a criminal charge for bigamy against him.

WHEREFORE, premises considered, the petition is DENIED. The Decision dated February 1, 2008
and Resolution dated July 24, 2008 of the Court of Appeals in CA-G.R. CR No. 30444 are hereby
AFFIRMED.

SO ORDERED.
11. GABRIEL CAPILI petitioner, vs. COURT OF APPEALS, ET. AL., respondents.

This Petition for Review on Certiorari seeks the reversal of the Decision of the Court of Appeals[1]
in CA G.R. CR No. 19336 entitled People of the Philippines vs. Gabriel Capili, et. al. affirming the
Decision of the Regional Trial Court[2] of the National Capital Judicial Region, Branch 34, finding
Gabriel Capili guilty beyond reasonable doubt of violation of Presidential Decree 1612.

Gabriel Capili y Recto (GABRIEL) together with his wife Ferma Capili y Inot were charged with
violation of Presidential Decree 1612, otherwise known as the Anti-Fencing Law, in an information
that reads:

That on or about November 5, 1993, in the City of Manila, Philippines, the said accused, conspiring
and confederating together and mutually helping each other. With intent to gain for themselves or
for another, did then and there willfully and knowingly receive, possess, keep, acquire and sell or
dispose of the following, to wit:

Assorted pieces of jewelry

Several pieces of old coins (U.S. dollar)

all valued at P3,000,000.00, which they knew or should have known to have been derived from the
proceeds of a (sic) crime of theft.

Contrary to law.[3]

On December 3, 1993, both accused entered a plea of not guilty to the offense charged with the
assistance of counsel.[4] Thereafter, trial ensued.

The trial court summarized the testimonies of the witnesses as follows:

xxx xxx xxx

Christine Diokno testified that at 4:00 P.M. on November 4, 1993, when she went home from her
office, she discovered that some of her (sic) items at (sic) her closet and the jewelries (sic) and
money at (sic) her mothers room were taken. Upon call, two Makati police responded and surveyed
the room where the robbery took place. The police officer took her statement (Exhs. F, F-1 and F-2)
and then investigated the theft case. Police prepared the police report and concluded that Michael
Manzo, her former houseboy, committed the offense so a case against Manzo was filed. She
described all the properties that were taken as those reflected in the police report because according
to her she gave the police a list of the items and is part of her statement (tsn, p. 11, May 11, 1994).
Allegedly the value is about 3 Million pesos, some were of 20 years and some were of 30 years
vintage, acquired by her parents since their wedding in 1945. Some from abroad, States or
Hongkong acquired during trips.

On November 27, 1993, Quiapo sub-station informed her that Michael Manzo was there. She talked
to Michael Manzo who admitted the commission of the stealing and that he sold the items to Gabriel
Capili and his wife for P50,000.00. Likewise Michael Manzo admitted that on two occasions Gabriel
Capili returned some of the items. The first was before he went to Isabela. That Capili returned to
him (Manzo) the memorabilia taken from her room consisting of (sic) school ring, bracelets, key chain
and some custom jewelries (sic) and some other items. That three days before the apprehension
Gabriel returned the Raymond Wiel watch and two cast rings with diamonds. The first ring is valued
at P3,000.00 the second watch was (sic) cost P20,000.00 to P60,000.00 and the two cast rings about
P80,000.00. Then Manzo informed her that he sold those items returned to other buyers, near Claro
M. Recto, who paid P1,500.00 and P1,000.00 for the ring which police officer (sic) failed to recover
because the stand was no longer there. She was shown by the police officer the items recovered
from Gabriel Capili and his wife which she identified as her property. Shown with Exhs. A, B, C, she
said those are her properties and that the coins (sic) were acquired during the trips to the States.
She kept John F. Kennedy dollar coins contained in a small box. She further relayed that the coins,
Exh. A came from a brooch owned by her mother. The chain with medal of our Lady was bought by
her mother and was given to her together with other belongings.

That before the discovery of the incident her mother had the list of all the items by counting them
physically because her mother used to check the jewelry every week in her presence. That all is
worth three (3) Million Pesos because the jewelries (sic) were sometimes brought to a jeweler for a
change or for removal of stones or replacement that is why she considered that all the jewelries (sic)
were appraised. She does not know, however, what exactly were brought by her mother. That she
was present during the last inventory of the items and the land titles by her mother, presenting the
alleged inventory on August 1, 1993 (Exh. S), after her father died on July 15, 1993. While her mother
was checking them, she was in the room writing the description of the jewelries (sic), the cost and
date when bought. That the corresponding value stated came from her mother kept inside the vault.

That on November 2, 1993, she took out all the items because November 9 was her mothers birthday
and would like to select the items she and her mother were going to wear for the occasion then check
the jewelries (sic) against the prepared list. The list included the items lost but did not include the
box of memorabilia which was taken from her room. She claimed that the records including the
receipts from where the list was taken were lost together with the jewelries (sic) that were taken.

xxx xxx xxx

To support the allegation in the Information Michael Manzo testified that after he asked his friend
Emilio Benitez where he can sell his jewelries (sic) he was brought to Boy Rectos (accused) house
at 1260 Carola St., Sampaloc, Manila, to whom he gave one bag of jewelries (sic) with the
information that he stole them while he was a house boy. Recto agreed to pay him P50,000.00 (p.
3, tsn, March 3, 1994). He left and went back after a week or on November 5, as he needed the
money. He was paid P1,500.00. He left again and went back after two weeks and was paid again
P6,000.00. He left again but in his return he was not paid anymore.

When he visited his friend Emilio Benitez at the precinct, having been charged with vagrancy, he
was caught by the police asking him where he brought the jewelries (sic), so he pointed to Boy
Recto, who was picked-up and brought to the station and investigated. During the frisking and
searching at the station, police officers found pearls and old coins from Gabriel Capili. The following
day, Mrs. Ferma Capili was investigated at sub-station 3, Quiapo, WPD.

He identified the pearl earring with copper (sic) with diamond (Exh. A). He likewise identified the old
coin 4 pieces of dollars marked as Exhs. B-1, B-2, B-3 and B-4; B-1, B-2 dimes, B-3 and B-4 quarter
cents; pendant with inscription Boy Recto, Exh. C. He admitted that the statement marked as Exh.
D and sub-markings is his.

Describing the contents of the bag, he said that there were more or less 20 pieces of rings, some
with pearls and some with diamonds and birthstones; more or less 20 pairs of earrings, diamond
with pearls; more or less 10 pieces of necklaces of plain gold with pendant with the replica of God
and cast with diamond. There were Quartz watches; 3 pieces Bulova watches; 5 pieces of Seiko
watches, Raymond Wiel. That per complainants information, all of them costs (sic) 3 Million Pesos
which he merely gave to the accused without counting them. He however, claims that they will cost
only one to two million pesos. Despite which value, he entrusted them to Boy Recto without counting
the pieces.

Defense adopted Exhibit B as Exhibit 1 and sub-markings, Exhibit D as their Exhibit 2 and 2-a.

That during the investigation, when he was given another lawyer, he stated that he told the accused
to sell the jewelries (sic) he stole. (p. 6, tsn, March 16, 1994)
That witness explained that only the fancy ones were returned to him.

That three days after he left the jewelries (sic) to (sic) Recto, they had drinking session somewhere
at Recto, on which occasion, he did not ask for the jewelries (sic).

That the P1,500.00 was given to him near the bus terminal at Sampaloc near UST and when the
fancies (sic) were returned, which he came to know as such because he had it appraised in a
pawnshop when they arrived from Roxas, Isabela. When the jewelries (sic) were returned contained
in the bag, he accepted, opened (sic) for a couple of minutes without counting. That Emilio Benitez
glanced on (sic) them because the bus was about leave. Recto gave the instruction that he can come
back within two weeks because Boy Recto will pay.

The witness admitted that he is facing a charge of Qualified Theft in Makati pending before a court
where he posted his bail. That he is testifying before this Court out of his own volition. He explained
that they went to Isabela per instruction of Gabriel Capili that they should lie low because the police
were hunting for them and that Emilio Benitez is from Roxas, Isabela.

After more or less two weeks when (sic) they arrived from Isabela, he was requested by Boy Recto
(Gabriel Capili) to sign a blank document somewhere at Espana (Document Exh. 3 to 3-A). He was
not, however, forced. That upon arrival from Isabela, they went to the house of the accused then
proceeded to wait at a hotel in Sta. Cruz. After three hours of waiting, the accused arrived and gave
him P6,000.00 in the presence of Emilio Benitez without receipt. He declared that he himself is not
sure whether all the jewelries (sic) inside the bag are (sic) genuine or not.

Having admitted to the police that he is Michael Manzo, he was asked where he brought the jewelries
(sic) so he pointed to Boy Recto. He admitted to have signed a blank document, Exhibit 4 and 3, his
signature, Exh. 4-1 and Exh.3-A, but do (sic) not know where the originals were, but later said that
the originals are in the hands of the police officers.

SPO3 Ernesto Ramirez testified that as police officer of Station 3, on November 27, 1993 he
investigated Michael Manzo who was accused of Qualified Theft at Makati and who admitted to him
having committed said offense and pointed to the house of Gabriel Capili at Sampaloc, Manila where
he sold the jewelries (sic). Thereafter, he and his companions SPO2 Reyes, SPO3 Salalia and SPO3
Fuentes with Michael Manzo went to the place and saw the wife of Gabriel Capili wearing the pair of
earrings, one of the jewelries (sic) stolen. They were allowed by Gabriel Capili to get (sic) inside the
residence where Gabriel Capili showed him the signed document of Michael Manzo, Exh. 4 and said
he returned the jewelries (sic). It was however, denied by Manzo although he admitted the signature.
Gabriel Capili went with them to the police precinct where he (Gabriel Capili) was referred to the
investigator and found (sic) from his pockets 4 pieces of coins. Allegedly while the wife was then
being investigated, Manzo pointed to the earrings worn by the (sic) wife as part of those stolen
properties. The same was taken by the investigator. He pointed to both accused inside the
courtroom.

SPO1 Eduardo San Diego also from Station 3, Quiapo, Manila, investigator, investigated the case
of Qualified Theft that happened at the house of Cristine Diokno. Both accused were positively
identified by Michael Manzo so he took the latters statement. That during his investigation he
recovered a necklace with pendant, US dollar coins with different denominations and one pair of
earrings (Exh. A, B and C). In their investigation they tried to recover the other items but failed
because the establishment of the other buyer pointed to them by Michael Manzo was no longer
existing. He prepared the booking sheet and arrest report Exhs. D and E and sub-markings.

xxx xxx xxx

Gabriel Capili denied any knowledge about the charge against him and declared that what Michael
Manzo stated in court that he agreed to pay P50,000.00 but paid only P1,800.00 is not true. He was
at home on November 10, 1993 selling junk foods (sic) when he was called by Emil, companion of
Michael Manzo, through the phone which number he gave to Emil when the latter bought something
on credit from him a week before that date. Emil asked him if he would like to buy jewelry to whom
he relayed if he will see the jewelry. Emil arrived at 2:00 oclock P.M. together with Michael Manzo,
the first time he saw the latter and showed him two (2) pieces of jewelry, one birthstone and an old
coin with a price of P2,000.00. He inquired from (sic) where the jewelries (sic) came from and was
answered by Michael Manzo that it came from and (sic) being sold by his mother. He declined
because he cannot pay for it. Michael Manzo handed to Emil something wrapped of which he was
asked to appraise. Michael Manzo asked him if he knew somebody who can buy. He said he has
but hard to see because he seldom see the man already but was invited to see the person at Recto.
After boarding the taxi they did not proceed immediately to the place. Michael Manzo ordered the
taxi cab to go back to Sta. Mesa Love Hotel where he was told to wait. Michael Manzo went up the
hotel while Emil went towards Aurora Boulevard walking carrying some items but did not know what
happened. After one hour of waiting at the taxicab and worried about the taxi fare, he went inside
the hotel and after inquiring from the counter where his companion was, Michael Manzo went down
with two women companions. Fifteen minutes after the two women left, Emil arrived and said he
went to Cubao selling the jewelries (sic). Thereafter, they went to Recto at (sic) a business
establishment near the Galaxy Theater. He was offered to drink from almost dark until dawn asking
him if he had already find (sic) his friend buyer. They parted ways and went home.

On November 15, Manzo and Emil called him up again asking if it was possible to see him which he
positively answered. He went to UST somewhere near Mambusco station where he saw Emil with
Michael Manzo about 5 meters from Emil standing talking to someone. He asked Emil if he was able
to sell the jewelries (sic) and was answered not yet. Emil was borrowing P700.00 but he has no such
amount, so Emil gave him the jewelries (sic) formerly offered to him, the birthstone and watch
allegedly as a gift from Michael Manzo. Emil informed him that he and Michael Manzo together with
two others were going to Isabela so he gave the P700.00. After they (Emil and his friend) boarded
the bus he went home.

On November 21, he was fetched by Emil, brought to a place near the UST along Dapitan Street
where he found Michael Manzo retrieving the gift given to him. Because of Manzos insistence, he
returned them but asked Manzo to sign Exh. 3. They failed to return his P700.00 so he asked Manzo
to sign another documents (sic), Exhs. 4 and 4-A, the original of which was given to the policeman
and which was not returned to him.

After several days Pat. Ramirez arrived informing him that Michael Manzo sold him jewelries (sic).
Invited (sic) he went to the police at the Hidalgo sub-station 3. Michael Manzo was not immediately
investigated but Michael Manzo and Emil were incarcerated. After fifteen (15) minutes from the
second floor he was brought to the ground floor inside the cell and detained for several days. He
alleged that on the same day he was brought in a room at the second floor where he was mauled by
Pat. Ramirez (sic) not convinced with what he said about the paper (Exh. 4), he gave them then
brought back to the cell. He told the police that the jewelries (sic) they are looking for are in the
possession of Michael Manzo. He further claimed that Michael Manzo talked to a certain Go and
pointed to some other buyers who were brought to the precinct. He, however, did not know if they
were released. On November 27 when his wife visited him at 7:00 P.M. she was likewise incarcerated
because Michael Manzo pointed to the earrings of his wife.

He further declared that prior to his wifes arrival, policeman and Michael planned that when his wife
arrived, Michael will point to her earrings, allegedly because Emil gave P500.00 to the police officer
while planning to include his wife. His wife was then brought to the second floor but did not know
what happened, thereafter was incarcerated.

He testified that the earrings of his wife was given by her brother and that the old coin, Exh. B is his
acquired when he helped, per order of Pat. Nick Golahan, in carrying dead body (sic) when MV
Nucnucan sank in Cebu where the son of one he carried gave him coin. The other coin belongs to
him which he picked up in Cebu. That the necklace with print Boy Recto on the pendant belongs to
him and which was taken at the precinct from the dancer to whom he gave it. Further stating that the
same came from Pat. Alex Aguirre when he was still single.
That upon inquest, the Fiscal told the police that they should be released but were not and (sic)
brought back to the cell. The following morning they were brought to the City Hall. There again, the
Fiscal ordered that they be released but were not and (sic) brought back to the cell once more. On
the third time when he was brought to the Fiscal, the latter allegedly told him that San Diego altered
the testimony that is why they will be incarcerated.

He denied that Manzo signed Exh. 3 without any writing and pointed to the typewritten statement
therein as his relaying that the same was thru Michaels suggestion at the time when they were
already quarreling while accusing Manzo to have stolen the properties subject matter of this case
and even questioned that there is something wrongly written, the giving as a gift.

That although they did not know the accused Michael Manzo and did not know of any reason why
he pointed to him and his wife as buyers of the jewelries (sic) worth 3 Million Pesos, he believed that
it was because of the quarrel when he started accusing Manzo of stealing of which he was being
blamed.

He now claims that the he came to know Emilio Benitez only on November 5, the same time he came
to know Michael. (tsn, p. 22, Aug. 8, 1994), hence, there is no reason why Benitez will approach him
selling the property. There is no quarrel with the police officers and so he has no knowledge why
these people would like to implicate him and his wife. He likewise did not know of any reason why
the police officer stated in their affidavit of arrest that the items US Dollars were recovered from him
at the time of the investigation. He admitted that only one of the coins belongs to him, picked-up from
Cebu (Exh. B-4) and his two (2) LRT coins are still missing so with P20.00 and two more Abraham
Lincoln coins. Although he claimed that San Diego did not release them after the Fiscals order he
did not file any action against San Diego. That on December 1, 1993, the Prosecutor ordered the
police to release them and was present asking the Fiscal if he can be allowed to go home but since
they did not have any document, the Fiscal said the policemen will take care of them. They did not
execute any statement because according to him he was not given any chance.

SPO1 Beinvenido Inot testified that he is a member of the National Police Force of Precinct 1,
Olongapo City and that the accused Ferma Capili, wife of Gabriel, is his sister. He was asked by his
sister to testify about the pair of earring (sic) that he gave Ferma on June 24, 1990, a U. S. Fancy
jewel which was given by her sister from abroad. It has brillantitos which is the same as a base of
the glass. The same was confiscated from Ferma by the police.

The last time he saw the pair of earring was on the date his sister celebrated her birthday. Showing
all the exhibits of the prosecution to the witness, at first he answered There are no brillantitos pair of
earrings, sir.. And later witness answered: Ay ito pala. (holding the pair of earrings marked as Exh.
A-1, tsn p. 5, Oct. 14, 1994). He later claimed that the pair of earrings is actually for his wife sent by
her sister abroad to Olongapo. He cannot remember having seen Ferma Capili on December 1993
to September 9, 1994, they saw each other two times and that they talked about those jewelries (sic)
thru the phone at that time when the accused was apprehended and incarcerated. However, despite
the information of Ferma Capili that she was apprehended because of the pair of earrings he did not
do anything because allegedly he was too busy and they have operation. He admitted that this is the
first time he declared that the earrings came from him without executing any written statement.
(Defense marked Exh. A-1 pair of earring (sic) as their Exh. 8) (Decision, pp. 1-15; Rollo, pp. 31-
45).[5]

On August 17, 1995, the trial court rendered its decision acquitting Ferma Capili but finding the
accused, Gabriel Capili, guilty beyond reasonable doubt of the crime charged the dispositive portion
of the decision reads:

WHEREFORE, finding the prosecutions evidence to be sufficient to support a conviction beyond


moral certainty, for violation of P.D. 1612 in relation to Sec. 3 par. A of the same law which required
that the penalty to be imposed shall be in the maximum period if the value of the property is more
than P22,000.00, adding one (1) year for its additional P10,000.00, the total penalty of which shall
not exceed twenty (20) years, further considering that the consideration of the purchase is
P50,000.00, accused Gabriel Capili is hereby found guilty beyond reasonable doubt for violation of
said law. Without any mitigating or aggravating circumstances attendant to its commission, but
granting the accused with the benefit of the indeterminate sentence law, he is hereby sentenced to
suffer eight (8) years and one (1) day to ten (10) years of prision mayor medium and to suffer the
additional penalty of three years (one for every P10,000.00) and to further suffer the accessory
penalty thereof.

The accused shall be credited with the full extent of his preventive imprisonment in accordance with
Art. 29 of the Revised Penal Code.

Since the claim of P3 Million has not been sufficiently proven but the agreed price between the seller
and herein accused is only P50,000.00, the accused is hereby directed to indemnify the complainant
Christined Diokno the sum of P50,000.00, less the value of the jewelries (sic) presented in Court,
Exhibits A. B and C and its sub-markings, to be returned to the owner upon proper receipt and
photograph.

The bond posted by the accused for his provisional liberty is hereby cancelled.

The body of the accused is hereby committed to the Director of the Bureau of Corrections, National
Penitentiary, Muntinlupa, Metro Manila, through the City Warden of Manila.

Considering that there is no evidence to show complicity and/or that Ferma Capili conspired and
confederated with her husband Gabriel Capili, she is hereby acquitted from the offense charged in
the Information.

The bond posted by the accused for her provisional liberty is hereby cancelled.

SO ORDERED.[6]

GABRIEL appealed to the Court of Appeals which affirmed the decision of the RTC the dispositive
portion of its decision reads:

WHEREFORE, the decision of the trial court dated August 17, 1995 convicting the appellant for
violation of P.D. 1612 is hereby AFFIRMED in toto.

SO ORDERED.[7]

Motion for reconsideration was denied[8], hence this appeal where the accused assigns the following
error:

THE COURT OF APPEALS IN AFFIRMING THE DECISION OF THE TRIAL COURT ERRED IN
NOT REMANDING THE CASE TO THE COURT A QUO FOR FURTHER PROCEEDINGS
DESPITE OF (SIC) THE FAVORABLE RECOMMENDATION OF THE OFFICE OF THE
SOLICITOR GENERAL CONSIDERING THAT THE ACTUAL VALUE OF THE FENCED ARTICLES
WERE NOT CORRECTLY ESTABLISHED BY THE PROSECUTION.[9]

The petitioner maintains that even for the sake of argument that the prosecution has established that
the petitioner committed the crime of fencing (violation of P.D. 1612) beyond reasonable doubt, there
is no legal basis for him to suffer the entire penalty imposed by the trial court. Petitioner claims that
the Office of the Solicitor General, in its appellees brief filed with the Court of Appeals, agrees that
basis of the penalty for the offense of fencing is the value of the property actually involved and not
the agreed selling price of the stolen item. The petitioner also maintains that since the prosecution
failed to prove the value of the stolen goods, the guilt of the petitioner has not been proved beyond
reasonable doubt. The petitioner therefore prays that the decision of the Court of Appeals be
reversed and a new one be issued either acquitting the petitioner or remanding the case to the court
a quo for further proceedings.[10]
The respondent through the Office of the Solicitor General (OSG) counters that on April 25, 1997, it
filed a Manifestation/Clarification modifying the recommendation it made in its appellees brief to the
effect that a remand of the case would unduly delay the disposition of the case. Therefore, to
expedite the final resolution of the case, the OSG recommended that as an alternative to a remand
that the assessment and findings of the trial court on the value of the subject articles, which is
P50,000.00 be adopted and used instead.[11] It is therefore the contention of the OSG that there is
no merit in the petitioners claim that the OSG agreed to the remand of the case for further reception
of evidence to determine the value of the stolen goods inasmuch as this would be prejudicial to the
rights of the petitioner. The OSG also opines that the petitioner is not entitled to an acquittal since
the value of the stolen property is not determinative of the guilt of the accused and is not an element
of the crime but is only determinative of the penalty therefor.

The petition is partly meritorious.

Fencing is the act of any person who, with intent to gain for himself or for another, shall buy receive,
possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other manner deal
in any article, item, object or anything of value which he knows, or should be known to him, to have
been derived from the proceeds of the crime of robbery or theft.[12] The essential elements of the
crime of fencing are:

1. A crime of robbery or theft has been committed;

2. The accused, who is not a principal or an accomplice in the commission of the crime of robbery
or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells,
or in any manner deals in any article, item, object or anything of value, which has been derived from
the proceeds of the said crime;

3. The accused knows or should have known that the said article, item, object or anything of value
has been derived from the proceeds of the crime of robbery or theft; and

4. There is on the part of the accused, intent to gain for himself or for another.[13]

All these elements are present in the case at bench.

The first element or the fact of theft was proved by prosecution witness, Christine Diokno (DIOKNO)
who testified that several pieces of jewelry, watches and money were stolen from her mothers
bedroom. She reported the theft to the police who after conducting an investigation, concluded that
her houseboy, Michael Manzo (MANZO), committed the offense. Consequently, a criminal case was
filed against MANZO. In her testimony, DIOKNO stated that the major items that were taken
consisted of two diamond rings each having a diamond solitaire of three (3) carats each, a pair of
diamond earrings each having a diamond solitaire of two point five (2.5) carats, a diamond cross
with twelve (12) half (1/2) carat diamond, her mothers wedding band, an emerald set consisting of
an emerald ring set with diamonds with a pair of matching earrings, a sapphire set consisting of two
sapphire rings set with diamonds and matching earrings, a South Sea pearl set consisting of a ring
and two pairs of matching earrings also set with diamonds, three cultured pearl necklaces with
matching cultured pearl earrings set with diamonds, a topaz set consisting of two rings with diamonds
and one with rubies with a set of matching earrings, a cameo set consisting of a ring, matching
earrings and a brooch all set with diamonds and four solid gold watches, a Rolex, Piaget, Universal
Geneve and a Gabriel Peregaux. She alleged that the total value of the items amounted to
approximately three million (P3,000,000.00) pesos. In court, DIOKNO identified some of the
recovered stolen items consisting of a set of pearl earrings with two small diamonds (Exhibit A), a
gold chain with pendant (Exhibit B) and old United States dollar coins (Exhibit C).[14]

DIOKNOs testimony is corroborated by MANZO, who admitted that he stole the jewelry from
DIOKNO. And that after stealing the jewelry, he delivered them to the petitioner, GABRIEL with the
information that the jewelry was stolen and for the purpose of selling the same. He identified
GABRIEL in court as the person to whom he delivered the stolen jewelry.[15] MANZO testified that
GABRIEL was not a participant in the theft of the jewelry and that he told GABRIEL that the jewelry
was stolen. He also established the fact that the petitioner agreed to pay fifty thousand (P50,000.00)
pesos for the stolen jewelry which clearly manifests intent to gain on the part of the petitioner.
Consequently, MANZOs testimony proves the second, third and fourth elements of the crime of
fencing.

At any rate, the law does not require proof of purchase of the stolen articles by the accused as mere
possession thereof is enough to give rise to a presumption of fencing.[16] GABRIEL, who was in
possession of at least two of the stolen items, has not rebutted this presumption.

We also disagree with the petitioner that the prosecution failed to prove the value of the stolen items.

Although DIOKNOs testimony is hearsay and is inadmissible for purposes of determining the value
of the stolen items inasmuch as her testimony was not based on her own personal knowledge but
on the appraisals made by jewelers and what her mother told her, MANZOs testimony remains
unrebutted. MANZO established that he sold the stolen items to GABRIEL for P50,000.00 and in the
absence of any evidence to the contrary, said amount is presumed to be the value thereof as it is
the only value established by the prosecution. Besides, the valuation of the stolen items made by
the trial court is a factual issue and factual findings of the trial court especially when affirmed by the
Court of Appeals are entitled to great weight and generally should not be disturbed on appeal.[17]

We note however that the trial court was mistaken in imposing the penalty. A person found guilty of
fencing property the value of which exceeds P22,000.00 is punished under Presidential Decree 1612
as follows:

Sec. 3. Penalties Any person guilty of fencing shall be punished as hereunder indicated:

a) The penalty of prision mayor, if the value of the property involved is more than 12,000 pesos but
not exceeding 22,000 pesos; if the value of such property exceeds the latter sum, the penalty
provided for 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 cases, the penalty shall be termed reclusion temporal and the accessory penalty pertaining
thereto provided in the Revised Penal Code shall also be imposed.

Under the Indeterminate Sentence Law[18], the court shall sentence an accused to an indeterminate
sentence the maximum term of which shall be that which, in view of the attending circumstances,
could be properly imposed and the minimum of which shall be within the range of the penalty next
lower to that prescribed for the offense; and if the offense is punished by any other law, the court
shall sentence an accused to an indeterminate sentence, the maximum term of which shall not
exceed the maximum fixed by said law and the minimum shall not be less than the minimum term
prescribed by the same.[19]

Applying the foregoing, the petitioner should be sentenced to suffer the penalty of prision mayor
maximum. The fact that the value of the fenced items exceeds P22,000.00 should not, like in cases
of estafa, be considered in the initial determination of the indeterminate penalty.[20] In the absence
of mitigating and aggravating circumstances, this should be imposed in its medium period which
ranges from ten (10) years, eight (8) months and one (1) day to eleven (11) years and four (4)
months. Adding the additional two (2) year sentence, one for each P10,000.00 in excess of
P22,000.00, the maximum of the indeterminate penalty is anywhere within ten (10) years, eight (8)
months and one (1) day of prision mayor to thirteen (13) years and four (4) months of reclusion
temporal[21]. On the other hand, the minimum of the indeterminate sentence should be anywhere
within the range of the penalty next lower which is prision correcional maximum[22] which ranges
from four (4) years, two (2) months and one (1) day to six (6) years.

WHEREFORE, the petition is hereby DENIED and the decision of the Court of Appeals finding the
petitioner, Gabriel Capili guilty beyond reasonable doubt of violating Presidential Decree 1612
otherwise known as the Anti-fencing law is AFFIRMED with the MODIFICATION that the petitioner
is hereby sentenced to suffer an indeterminate penalty of four (4) years, two (2) months and one (1)
day of prision correcional as minimum to thirteen (13) years and four (4) months of reclusion temporal
as maximum.

SO ORDERED.

12. G.R. No. 190475 April 10, 2013

JAIME ONG y ONG, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

SERENO, CJ.:

Before the Court is an appeal from the Decision1 dated 18 August 2009 of the Court of Appeals
(CA), which affirmed the Decision2 dated 06 January 2006 of the Regional Trial Court (RTC), Branch
37, Manila. The RTC had convicted accused Jaime Ong y Ong (Ong) of the crime of violation of
Presidential Decree No. (P.O.) 1612, otherwise known as. the Anti-Fencing Law.

Ong was charged in an Information3 dated 25 May 1995 as follows:

That on or about February 17, 1995, in the City of Manila, Philippines. the said accused, with intent
of gain for himself or for another. did then and there willfully, unlawfully and feloniously receive and
acquire from unknown person involving thirteen (13) truck tires worth ₱65, 975.00, belonging to
FRANCISCO AZAJAR Y LEE, and thereafter selling One (1) truck tire knowing the same to have
been derived from the crime of robbery.

CONTRARY TO LAW.

Upon arraignment, Ong entered a plea of "not guilty." Trial on the merits ensued, and the RTC found
him guilty beyond reasonable doubt of violation of P.D. 1612. The dispositive portion of its Decision
reads:

WHEREFORE, premises considered, this Court finds that the prosecution has established the guilt
of the accused JAIME ONG y ONG beyond reasonable doubt for violation of Presidential Decree
No. 1612 also known as Anti-Fencing Law and is hereby sentenced to suffer the penalty of
imprisonment of 10 years and 1 day to 16 years with accessory penalty of temporary disqualification.

SO ORDERED.4

Dissatisfied with the judgment, Ong appealed to the CA. After a review of the records, the RTC’s
finding of guilt was affirmed by the appellate court in a Decision dated 18 August 2009.

Ong then filed the instant appeal before this Court.

The Facts

The version of the prosecution, which was supported by the CA, is as follows:

Private complainant was the owner of forty-four (44) Firestone truck tires, described as T494 1100
by 20 by 14. He acquired the same for the total amount of ₱223,401.81 from Philtread Tire and
Rubber Corporation, a domestic corporation engaged in the manufacturing and marketing of
Firestone tires. Private complainant's acquisition was evidenced by Sales Invoice No. 4565 dated
November 10, 1994 and an Inventory List acknowledging receipt of the tires specifically described
by their serial numbers. Private complainant marked the tires using a piece of chalk before storing
them inside the warehouse in 720 San Jose St., corner Sta. Catalina St., Barangay San Antonio
Valley 1, Sucat, Parañaque, owned by his relative Teody Guano. Jose Cabal, Guano's caretaker of
the warehouse, was in charge of the tires. After appellant sold six (6) tires sometime in January
1995, thirty-eight (38) tires remained inside the warehouse.

On February 17, 1995, private complainant learned from caretaker Jose Cabal that all thirty-eight
(38) truck tires were stolen from the warehouse, the gate of which was forcibly opened. Private
complainant, together with caretaker Cabal, reported the robbery to the Southern Police District at
Fort Bonifacio.

Pending the police investigation, private complainant canvassed from numerous business
establishments in an attempt to locate the stolen tires. On February 24, 1995, private complainant
chanced upon Jong's Marketing, a store selling tires in Paco, Manila, owned and operated by
appellant. Private complainant inquired if appellant was selling any Model T494 1100 by 20 by 14
ply Firestone tires, to which the latter replied in the affirmative. Appellant brought out a tire fitting the
description, which private complainant recognized as one of the tires stolen from his warehouse,
based on the chalk marking and the serial number thereon. Private complainant asked appellant if
he had any more of such tires in stock, which was again answered in the affirmative. Private
complainant then left the store and reported the matter to Chief Inspector Mariano Fegarido of the
Southern Police District.

On February 27, 1995, the Southern Police District formed a team to conduct a buy-bust operation
on appellant's store in Paco, Manila. The team was composed of six (6) members, led by SPO3
Oscar Guerrero and supervised by Senior Inspector Noel Tan. Private complainant's companion Tito
Atienza was appointed as the poseur-buyer.

On that same day of February 27, 1995, the buy-bust team, in coordination with the Western Police
District, proceeded to appellant's store in Paco, Manila. The team arrived thereat at around 3:00 in
the afternoon. Poseur-buyer Tito Atienza proceeded to the store while the rest of the team posted
themselves across the street. Atienza asked appellant if he had any T494 1100 by 20 by 14 Firestone
truck tires available. The latter immediately produced one tire from his display, which Atienza bought
for ₱5,000.00. Atienza asked appellant if he had any more in stock.

Appellant then instructed his helpers to bring out twelve (12) more tires from his warehouse, which
was located beside his store. After the twelve (12) truck tires were brought in, private complainant
entered the store, inspected them and found that they were the same tires which were stolen from
him, based on their serial numbers. Private complainant then gave the prearranged signal to the
buy-bust team confirming that the tires in appellant's shop were the same tires stolen from the
warehouse.

After seeing private complainant give the pre-arranged signal, the buy-bust team went inside
appellant's store. However, appellant insisted that his arrest and the confiscation of the stolen truck
tires be witnessed by representatives from the barangay and his own lawyer. Resultantly, it was
already past 10:00 in the evening when appellant, together with the tires, was brought to the police
station for investigation and inventory. Overall, the buy-bust team was able to confiscate thirteen
(13) tires, including the one initially bought by poseur-buyer Tito Atienza. The tires were confirmed
by private complainant as stolen from his warehouse.5

For his part, accused Ong solely testified in his defense, alleging that he had been engaged in the
business of buying and selling tires for twenty-four (24) years and denying that he had any knowledge
that he was selling stolen tires in Jong Marketing. He further averred that on 18 February 1995, a
certain Ramon Go (Go) offered to sell thirteen (13) Firestone truck tires allegedly from Dagat-
dagatan, Caloocan City, for ₱3,500 each. Ong bought all the tires for ₱45,500, for which he was
issued a Sales Invoice dated 18 February 1995 and with the letterhead Gold Link Hardware &
General Merchandise (Gold Link).6
Ong displayed one (1) of the tires in his store and kept all the twelve (12) others in his bodega. The
poseur-buyer bought the displayed tire in his store and came back to ask for more tires. Ten minutes
later, policemen went inside the store, confiscated the tires, arrested Ong and told him that those
items were stolen tires.7

The RTC found that the prosecution had sufficiently established that all thirteen (13) tires found in
the possession of Ong constituted a prima facie evidence of fencing. Having failed to overcome the
presumption by mere denials, he was found guilty beyond reasonable doubt of violation of P.D.
1612.8

On appeal, the CA affirmed the RTC’s findings with modification by reducing the minimum penalty
from ten (10) years and one (1) day to six (6) years of prision correcional.9

OUR RULING

The Petition has no merit.

Fencing is defined in Section 2(a) of P.D. 1612 as the "act of any person who, with intent to gain for
himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall
buy and sell, or in any manner deal in any article, item, object or anything of value which he knows,
or should be known to him, to have been derived from the proceeds of the crime of robbery or theft."

The essential elements of the crime of fencing are as follows: (1) a crime of robbery or theft has
been committed; (2) the accused, who is not a principal or on accomplice in the commission of the
crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes,
or buys and sells, or in any manner deals in any article, item, object or anything of value, which has
been derived from the proceeds of the crime of robbery or theft; (3) the accused knew or should
have known that the said article, item, object or anything of value has been derived from the proceeds
of the crime of robbery or theft; and (4) there is, on the part of one accused, intent to gain for oneself
or for another.10

We agree with the RTC and the CA that the prosecution has met the requisite quantum of evidence
in proving that all the elements of fencing are present in this case.

First, the owner of the tires, private complainant Francisco Azajar (Azajar), whose testimony was
corroborated by Jose Cabal - the caretaker of the warehouse where the thirty-eight (38) tires were
stolen – testified that the crime of robbery had been committed on 17 February 1995. Azajar was
able to prove ownership of the tires through Sales Invoice No. 456511 dated 10 November 1994 and
an Inventory List.12 Witnesses for the prosecution likewise testified that robbery was reported as
evidenced by their Sinumpaang Salaysay13 taken at the Southern Police District at Fort Bonifacio.14
The report led to the conduct of a buy-bust operation at Jong Markerting, Paco, Manila on 27
February 1995.

Second, although there was no evidence to link Ong as the perpetrator of the robbery, he never
denied the fact that thirteen (13) tires of Azajar were caught in his possession. The facts do not
establish that Ong was neither a principal nor an accomplice in the crime of robbery, but thirteen
(13) out of thirty-eight (38) missing tires were found in his possession. This Court finds that the serial
numbers of stolen tires corresponds to those found in Ong’s possession.15 Ong likewise admitted
that he bought the said tires from Go of Gold Link in the total amount of ₱45,500 where he was
issued Sales Invoice No. 980.16

Third, the accused knew or should have known that the said article, item, object or anything of value
has been derived from the proceeds of the crime of robbery or theft. The words "should know" denote
the fact that a person of reasonable prudence and intelligence would ascertain the fact in
performance of his duty to another or would govern his conduct upon assumption that such fact
exists.17 Ong, who was in the business of buy and sell of tires for the past twenty-four (24) years,18
ought to have known the ordinary course of business in purchasing from an unknown seller.
Admittedly, Go approached Ong and offered to sell the thirteen (13) tires and he did not even ask
for proof of ownership of the tires.19 The entire transaction, from the proposal to buy until the delivery
of tires happened in just one day.20 His experience from the business should have given him doubt
as to the legitimate ownership of the tires considering that it was his first time to transact with Go
and the manner it was sold is as if Go was just peddling the thirteen (13) tires in the streets.

In Dela Torre v. COMELEC,21 this Court had enunciated that:

Circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of
the sale may have been derived from the proceeds of robbery or theft. Such circumstances include
the time and place of the sale, both of which may not be in accord with the usual practices of
commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly
engaged in the business of selling goods may likewise suggest the illegality of their source, and
therefore should caution the buyer. This justifies the presumption found in Section 5 of P.D. No. 1612
that "mere possession of any goods, . . ., object or anything of value which has been the subject of
robbery or thievery shall be prima facie evidence of fencing" — a presumption that is, according to
the Court, "reasonable for no other natural or logical inference can arise from the established fact of
. . . possession of the proceeds of the crime of robbery or theft." xxx.22

Moreover, Ong knew the requirement of the law in selling second hand tires.1âwphi1 Section 6 of
P.D. 1612 requires stores, establishments or entities dealing in the buying and selling of any good,
article, item, object or anything else of value obtained from an unlicensed dealer or supplier thereof
to secure the necessary clearance or permit from the station commander of the Integrated National
Police in the town or city where that store, establishment or entity is located before offering the item
for sale to the public. In fact, Ong has practiced the procedure of obtaining clearances from the police
station for some used tires he wanted to resell but, in this particular transaction, he was remiss in
his duty as a diligent businessman who should have exercised prudence.

In his defense, Ong argued that he relied on the receipt issued to him by Go.1âwphi1 Logically, and
for all practical purposes, the issuance of a sales invoice or receipt is proof of a legitimate transaction
and may be raised as a defense in the charge of fencing; however, that defense is disputable.23 In
this case, the validity of the issuance of the receipt was disputed, and the prosecution was able to
prove that Gold Link and its address were fictitious.24 Ong failed to overcome the evidence
presented by the prosecution and to prove the legitimacy of the transaction. Thus, he was unable to
rebut the prima facie presumption under Section 5 of P.D. 1612.

Finally, there was evident intent to gain for himself, considering that during the buy-bust operation,
Ong was actually caught selling the stolen tires in his store, Jong Marketing.

Fencing is malum prohibitum, and P.D. 1612 creates a prima fqcie presumption of fencing from
evidence of possession by the accused of any good, article, item, object or anything of value, which
has been the subject of robbery or theft; and prescribes a higher penalty based on the value of the
25 property.

The RTC and the CA correctly computed the imposable penalty based on ₱5,075 for each tire
recovered, or in the total amount of ₱65,975. Records show that Azajar had purchased forty-four
(44) tires from Philtread in the total amount of ₱223,40 1.81.26 Section 3 (p) of Rule 131 of the
Revised Rules of Court provides a disputable presumption that private transactions have been fair
and regular. Thus, the presumption of regularity in the ordinary course of business is not overturned
in the absence of the evidence challenging the regularity of the transaction between Azajar ,and Phil
tread.

In tine, after a careful perusal of the records and the evidence adduced by the parties, we do not find
sufficient basis to reverse the ruling of the CA affirming the trial court's conviction of Ong for violation
of P.D. 1612 and modifying the minimum penalty imposed by reducing it to six ( 6) years of prision
correccional.
WHEREFORE, premises considered, the Petition is DENIED for lack of merit. Accordingly, the
assailed Decision of the Court of Appeals in CA-G.R. CR No. 30213 is hereby AFFIRMED.

SO ORDERED.

13. G.R. No. 93335 September 13, 1990

JUAN PONCE ENRILE, petitioner,


vs.
HON. OMAR U. AMIN, Presiding Judge of Regional Trial Court of Makati, Branch 135, HON.
IGNACIO M. CAPULONG, Presiding Judge of Regional Trial Court of Makati, Branch 134,
Pairing Judge, SPECIAL COMPOSITE TEAM of: Senior State Prosecutor AURELIO TRAMPE,
State Prosecutor FERDINAND ABESAMIS and Asst. City Prosecutor EULOGIO MANANQUIL;
and PEOPLE OF THE PHILIPPINES, respondents.

Ponce Enrile, Cayetano, Reyes & Manalastas Law Offices for petitioner.

GUTIERREZ, JR., J.:

Together with the filing of an information charging Senator Juan Ponce Enrile as having committed
rebellion complexed with murder 1 with the Regional Trial Court of Quezon City, government
prosecutors filed another information charging him for violation of Presidential Decree No. 1829 with
the Regional Trial Court of Makati. The second information reads:

That on or about the 1st day of December 1989, at Dasmariñas Village, Makati, Metro Manila and
within the jurisdiction of this Honorable Court, the above-named accused, having reasonable ground
to believe or suspect that Ex-Col. Gregorio "Gringo" Honasan has committed a crime, did then and
there unlawfully, feloniously, willfully and knowingly obstruct, impede, frustrate or delay the
apprehension of said Ex. Lt. Col. Gregorio "Gringo" Honasan by harboring or concealing him in his
house.

On March 2, 1990, the petitioner filed an Omnibus Motion (a) to hold in abeyance the issuance of a
warrant of arrest pending personal determination by the court of probable cause, and (b) to dismiss
the case and expunge the information from the record.

On March 16, 1990, respondent Judge Ignacio Capulong, as pairing judge of respondent Judge
Omar Amin, denied Senator Enrile's Omnibus motion on the basis of a finding that "there (was)
probable cause to hold the accused Juan Ponce Enrile liable for violation of PD No. 1829."

On March 21, 1990, the petitioner filed a Motion for Reconsideration and to Quash/Dismiss the
Information on the grounds that:

(a) The facts charged do not constitute an offense;

(b) The respondent court's finding of probable cause was devoid of factual and legal basis; and

(c) The pending charge of rebellion complexed with murder and frustrated murder against Senator
Enrile as alleged co-conspirator of Col. Honasan, on the basis of their alleged meeting on December
1, 1989 preclude the prosecution of the Senator for harboring or concealing the Colonel on the same
occasion under PD 1829.

On May 10, 1990, the respondent court issued an order denying the motion for reconsideration for
alleged lack of merit and setting Senator Enrile's arraignment to May 30, 1990.
The petitioner comes to this Court on certiorari imputing grave abuse of discretion amounting to lack
or excess of jurisdiction committed by the respondent court in refusing to quash/ dismiss the
information on the following grounds, to wit:

I. The facts charged do not constitute an offense;

II. The alleged harboring or concealing by Sen. Enrile of Col. Honasan in a supposed meeting on 1
December 1989 is absorbed in, or is a component element of, the "complexed" rebellion presently
charged against Sen. Enrile as alleged co-conspirator of Col. Honasan on the basis of the same
meeting on 1 December 1989;

III. The orderly administration of Justice requires that there be only one prosecution for all the
component acts of rebellion;

IV. There is no probable cause to hold Sen. Enrile for trial for alleged violation of Presidential
Decree No. 1829;

V. No preliminary investigation was conducted for alleged violation of Presidential Decree No. 1829.
The preliminary investigation, held only for rebellion, was marred by patent irregularities resulting in
denial of due process.

On May 20, 1990 we issued a temporary restraining order enjoining the respondents from conducting
further proceedings in Criminal Case No. 90-777 until otherwise directed by this Court.

The pivotal issue in this case is whether or not the petitioner could be separately charged for violation
of PD No. 1829 notwithstanding the rebellion case earlier filed against him.

Respondent Judge Amin sustained the charge of violation of PD No. 1829 notwithstanding the
rebellion case filed against the petitioner on the theory that the former involves a special law while
the latter is based on the Revised Penal Code or a general law.

The resolution of the above issue brings us anew to the case of People v. Hernandez (99 Phil. 515
[1956]) the rulings of which were recently repeated in the petition for habeas corpus of Juan Ponce
Enrile v. Judge Salazar, (G.R. Nos. 92163 and 92164, June 5, 1990). The Enrile case gave this
Court the occasion to reiterate the long standing proscription against splitting the component
offenses of rebellion and subjecting them to separate prosecutions, a procedure reprobated in the
Hernandez case. This Court recently declared:

The rejection of both options shapes and determines the primary ruling of the Court, which that
Hernandez remains binding doctrine operating to prohibit the complexing of rebellion with any other
offense committed on the occasion thereof, either as a means to its commission or as an unintended
effect of an activity that commutes rebellion. (Emphasis supplied)

This doctrine is applicable in the case at bar. If a person can not be charged with the complex crime
of rebellion for the greater penalty to be applied, neither can he be charged separately for two (2)
different offenses where one is a constitutive or component element or committed in furtherance of
rebellion.

The petitioner is presently charged with having violated PD No. 1829 particularly Section 1 (c) which
states:

SECTION 1. The penalty of prison correccional in its maximum period, or a fine ranging from 1,000
to 6,000 pesos or both, shall be imposed upon any person who knowingly or wilfully obstructs,
impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of
criminal cases by committing any of the following acts:

xxx xxx xxx


(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable
ground to believe or suspect has committed any offense under existing penal laws in order to prevent
his arrest, prosecution and conviction.

xxx xxx xxx

The prosecution in this Makati case alleges that the petitioner entertained and accommodated Col.
Honasan by giving him food and comfort on December 1, 1989 in his house. Knowing that Colonel
Honasan is a fugitive from justice, Sen. Enrile allegedly did not do anything to have Honasan arrested
or apprehended. And because of such failure the petitioner prevented Col. Honasan's arrest and
conviction in violation of Section 1 (c) of PD No. 1829.

The rebellion charges filed against the petitioner in Quezon City were based on the affidavits
executed by three (3) employees of the Silahis International Hotel who stated that the fugitive Col.
Gregorio "Gringo" Honasan and some 100 rebel soldiers attended the mass and birthday party held
at the residence of the petitioner in the evening of December 1, 1989. The information (Annex "C",
p. 3) particularly reads that on "or about 6:30 p.m., 1 December, 1989, Col. Gregorio "Gringo"
Honasan conferred with accused Senator Juan Ponce Enrile accompanied by about 100 fully armed
rebel soldiers wearing white armed patches". The prosecution thereby concluded that:

In such a situation, Sen. Enrile's talking with rebel leader Col. Gregorio "Gringo" Honasan in his
house in the presence of about 100 uniformed soldiers who were fully armed, can be inferred that
they were co-conspirators in the failed December coup. (Annex A, Rollo, p. 65; Emphasis supplied)

As can be readily seen, the factual allegations supporting the rebellion charge constitute or include
the very incident which gave rise to the charge of the violation under Presidential Decree No. 1829.
Under the Department of Justice resolution (Annex A, Rollo, p. 49) there is only one crime of rebellion
complexed with murder and multiple frustrated murder but there could be 101 separate and
independent prosecutions for harboring and concealing" Honasan and 100 other armed rebels under
PD No. 1829. The splitting of component elements is readily apparent.

The petitioner is now facing charges of rebellion in conspiracy with the fugitive Col. Gringo Honasan.
Necessarily, being in conspiracy with Honasan, petitioners alleged act of harboring or concealing
was for no other purpose but in furtherance of the crime of rebellion thus constitute a component
thereof. it was motivated by the single intent or resolution to commit the crime of rebellion. As held
in People v. Hernandez, supra:

In short, political crimes are those directly aimed against the political order, as well as such common
crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive.
(p. 536)

The crime of rebellion consists of many acts. It is described as a vast movement of men and a
complex net of intrigues and plots. (People v. Almasan [CA] O.G. 1932). Jurisprudence tells us that
acts committed in furtherance of the rebellion though crimes in themselves are deemed absorbed in
the one single crime of rebellion. (People v. Geronimo, 100 Phil. 90 [1956]; People v. Santos, 104
Phil. 551 [1958]; People v. Rodriguez, 107 Phil. 659 [1960]; People v. Lava, 28 SCRA 72 [1969]). In
this case, the act of harboring or concealing Col. Honasan is clearly a mere component or ingredient
of rebellion or an act done in furtherance of the rebellion. It cannot therefore be made the basis of a
separate charge. The case of People v. Prieto 2 (80 Phil., 138 [1948]) is instructive:

In the nature of things, the giving of aid and comfort can only be accomplished by some kind of
action. Its very nature partakes of a deed or physical activity as opposed to a mental operation.
(Cramer v. U.S., ante) This deed or physical activity may be, and often is, in itself a criminal offense
under another penal statute or provision. Even so, when the deed is charged as an element of
treason it becomes Identified with the latter crime and can not be the subject of a separate
punishment, or used in combination with treason to increase the penalty as article 48 of the Revised
Penal Code provides. Just as one can not be punished for possessing opium in a prosecution for
smoking the Identical drug, and a robber cannot be held guilty of coercion or trespass to a dwelling
in a prosecution for robbery, because possession of opium and force and trespass are inherent in
smoking and in robbery respectively, so may not a defendant be made liable for murder as a separate
crime or in conjunction with another offense where, as in this case, it is averred as a constitutive
ingredient of treason.

The prosecution tries to distinguish by contending that harboring or concealing a fugitive is


punishable under a special law while the rebellion case is based on the Revised Penal Code; hence,
prosecution under one law will not bar a prosecution under the other. This argument is specious in
rebellion cases.

In the light of the Hernandez doctrine the prosecution's theory must fail. The rationale remains the
same. All crimes, whether punishable under a special law or general law, which are mere
components or ingredients, or committed in furtherance thereof, become absorbed in the crime of
rebellion and can not be isolated and charged as separate crimes in themselves. Thus:

This does not detract, however, from the rule that the ingredients of a crime form part and parcel
thereof, and hence, are absorbed by the same and cannot be punished either separately therefrom
or by the application of Article 48 of the Revised Penal Code. ... (People v. Hernandez, supra, at p.
528)

The Hernandez and other related cases mention common crimes as absorbed in the crime of
rebellion. These common crimes refer to all acts of violence such as murder, arson, robbery,
kidnapping etc. as provided in the Revised Penal Code. The attendant circumstances in the instant
case, however, constrain us to rule that the theory of absorption in rebellion cases must not confine
itself to common crimes but also to offenses under special laws which are perpetrated in furtherance
of the political offense.

The conversation and, therefore, alleged conspiring of Senator Ponce Enrile with Colonel Honasan
is too intimately tied up with his allegedly harboring and concealing Honasan for practically the same
act to form two separate crimes of rebellion and violation of PD No. 1829.

Clearly, the petitioner's alleged act of harboring or concealing which was based on his acts of
conspiring with Honasan was committed in connection with or in furtherance of rebellion and must
now be deemed as absorbed by, merged in, and Identified with the crime of rebellion punished in
Articles 134 and 135 of the RPC.

Thus, national, as well as international, laws and jurisprudence overwhelmingly favor the proposition
that common crimes, perpetrated in furtherance of a political offense, are divested of their character
as "common" offenses, and assume the political complexion of the main crime of which they are
mere ingredients, and consequently, cannot be punished separately from the principal offense, or
complexed with the same, to justify the imposition of a graver penalty. (People v. Hernandez, supra,
p. 541)

In People v. Elias Rodriguez, 107 Phil. 659 [1960], the accused, after having pleaded guilty and
convicted of the crime of rebellion, faced an independent prosecution for illegal possession of
firearms. The Court ruled:

An examination of the record, however, discloses that the crime with which the accused is charged
in the present case which is that of illegal possession of firearm and ammunition is already absorbed
as a necessary element or ingredient in the crime of rebellion with which the same accused is
charged with other persons in a separate case and wherein he pleaded guilty and was convicted. (at
page 662)

xxx xxx xxx


[T]he conclusion is inescapable that the crime with which the accused is charged in the present case
is already absorbed in the rebellion case and so to press it further now would be to place him in
double jeopardy. (at page 663)

Noteworthy is the recent case of Misolas v. Panga, (G.R. No. 83341, January 30, 1990) where the
Court had the occasion to pass upon a nearly similar issue. In this case, the petitioner Misolas, an
alleged member of the New Peoples Army (NPA), was charged with illegal possession of firearms
and ammunitions in furtherance of subversion under Section 1 of PD 1866. In his motion to quash
the information, the petitioner based his arguments on the Hernandez and Geronimo rulings on the
doctrine of absorption of common in rebellion. The Court, however, clarified, to wit:

... in the present case, petitioner is being charged specifically for the qualified offense of illegal
possession of firearms and ammunition under PD 1866. HE IS NOT BEING CHARGED WITH THE
COMPLEX CRIME OF SUBVERSION WITH ILLEGAL POSSESSION OF FIREARMS. NEITHER IS
HE BEING SEPARATELY CHARGED FOR SUBVERSION AND FOR ILLEGAL POSSESSION OF
FIREARMS. Thus, the rulings of the Court in Hernandez, Geronimo and Rodriguez find no
application in this case.

The Court in the above case upheld the prosecution for illegal possession of firearms under PD 1866
because no separate prosecution for subversion or rebellion had been filed. 3 The prosecution must
make up its mind whether to charge Senator Ponce Enrile with rebellion alone or to drop the rebellion
case and charge him with murder and multiple frustrated murder and also violation of P.D. 1829. It
cannot complex the rebellion with murder and multiple frustrated murder. Neither can it prosecute
him for rebellion in Quezon City and violation of PD 1829 in Makati. It should be noted that there is
in fact a separate prosecution for rebellion already filed with the Regional Trial Court of Quezon City.
In such a case, the independent prosecution under PD 1829 can not prosper.

As we have earlier mentioned, the intent or motive is a decisive factor. If Senator Ponce Enrile is not
charged with rebellion and he harbored or concealed Colonel Honasan simply because the latter is
a friend and former associate, the motive for the act is completely different. But if the act is committed
with political or social motives, that is in furtherance of rebellion, then it should be deemed to form
part of the crime of rebellion instead of being punished separately.

In view of the foregoing, the petitioner can not be tried separately under PD 1829 in addition to his
being prosecuted in the rebellion case. With this ruling, there is no need for the Court to pass upon
the other issues raised by the petitioner.

WHEREFORE, the petition is GRANTED. The Information in Criminal Case No. 90-777 is
QUASHED. The writ of preliminary injunction, enjoining respondent Judges and their successors in
Criminal Case No. 90-777, Regional Trial Court of Makati, from holding the arraignment of Sen. Juan
Ponce Enrile and from conducting further proceedings therein is made permanent.

SO ORDERED.

14. [G.R. No. 131492. September 29, 2000]

ROGER POSADAS, ROSARIO TORRES-YU, and MARICHU LAMBINO, petitioners, vs. THE
HON. OMBUDSMAN, THE SPECIAL PROSECUTOR, and ORLANDO V. DIZON, respondents.

DECISION

MENDOZA, J.:

Dennis Venturina, a member of Sigma Rho at the University of the Philippines, was killed in a rumble
between his fraternity and another fraternity on December 8, 1994. In a letter dated December 11,
1994, petitioner Roger Posadas, then Chancellor of U.P. Diliman in Quezon City, asked the Director
of the National Bureau of Investigation for assistance in determining the persons responsible for the
crime. In response to the request, respondent Orlando V. Dizon, Chief of the Special Operations
Group of the NBI, and his men went to U.P. on December 12 and, on the basis of the supposed
positive identification of two alleged eyewitnesses, Leandro Lachica and Cesar Mangrobang, Jr.,
attempted to arrest Francis Carlo Taparan and Raymundo Narag, officers/members of the Scintilla
Juris Fraternity, as suspects in the killing of Venturina. It appears that the two suspects had come
that day to the U.P. Police Station for a peace talk between their fraternity and the Sigma Rho
Fraternity.

Petitioners Posadas, Marichu Lambino, and Rosario Torres-Yu, also of U.P., and a certain Atty.
Villamor, counsel for the suspects, objected on the ground that the NBI did not have warrants of
arrest with them. Posadas and Atty. Villamor promised to take the suspects to the NBI Office the
next day. As a result of their intervention, Taparan and Narag were not arrested by the NBI agents
on that day.[1] However, criminal charges were filed later against the two student suspects.[2]

Dizon then filed a complaint in the Office of the Special Prosecutor, charging petitioners Posadas,
Torres-Yu, Lambino, Col. Eduardo Bentain, Chief of the Security Force of the U.P. Police, and Atty.
Villamor with violation of P.D. 1829,[3] which makes it unlawful for anyone to obstruct the
apprehension and prosecution of criminal offenders.

On May 18, 1995, an information[4] was filed against them, alleging that:

That on or about December 12, 1994 and for sometime prior or subsequent thereto, in Quezon City,
Philippines, and within the jurisdiction of this Honorable Court, above-named accused, namely:
ROGER POSADAS, Chancellor; ROSARIO YU - Vice Chancellor; ATTY. MARICHU LAMBINO -
Asst. Legal Counsel; and COL. EDUARDO BENTAIN - Chief, Security Force, all of the University of
the Philippines, Diliman, Quezon City, all public officers, while in the performance of their respective
official functions, taking advantage of their official duties and committing the crime in relation to their
office, conspiring and confederating with each other and with a certain ATTY. VILLAMOR, did then
and there wilfully, knowingly and criminally obstruct, impede and frustrate the apprehension of
FRANCIS CARLO TAPARAN and RAYMUNDO NARAG, both principal suspects involved in the
brutal killing of DENNIS VENTURINA, a U.P. graduating student and Chairperson of the UP College
of Administration, Student Council, and delaying the investigation and prosecution of the said
heinous case by harboring and concealing said suspects thus, leading to the successful escape of
suspects Narag and another principal suspect JOEL CARLO DENOSTA; that said above acts were
done by the above-named accused public officials despite their full knowledge that said suspects
were implicated in the brutal slaying of said Dennis Venturina, thus preventing the suspects arrest,
prosecution and conviction.

CONTRARY TO LAW.

Later, on motion of petitioners, the Special Prosecutor's Office recommended the dismissal of the
case. But the recommendation was disapproved. In a memorandum, dated September 8, 1997, the
Office of the Ombudsman directed the Special Prosecutor to proceed with the prosecution of
petitioners in the Sandiganbayan. Hence this petition for certiorari and prohibition to set aside the
resolution of the Ombudsman's office ordering the prosecution of petitioners.

Petitioners contend that:

I. THE HONORABLE OMBUDSMAN COMMITTED GRAVE ABUSE OF DISCRETION WHEN HE


RULED THAT: 1) STUDENTS COULD BE ARRESTED WITHOUT WARRANT ON MERE
SUSPICION; 2) PD 1829 INCLUDES ARRESTS WITHOUT WARRANTS ON MERE SUSPICION;
AND WHEN HE REVERSED THE FINDINGS AND RESOLUTION OF THE SPECIAL
PROSECUTION OFFICER, THE DEPUTY SPECIAL PROSECUTOR AND THE SPECIAL
PROSECUTOR, WHO CONDUCTED THE REINVESTIGATION OF THE CASE; AND FINALLY
WHEN HE RESOLVED THAT PETITIONERS SHOULD BE SUBJECTED TO PUBLIC TRIAL WHEN
THERE IS NO PROBABLE CAUSE AND NO BASIS.

II. SECTION 1, PARAGRAPH C OF PRESIDENTIAL DECREE NO. 1829 IS


UNCONSTITUTIONAL.[5]

Two issues are raised in this case, to wit: (1) Whether the attempted arrest of the student suspects
by the NBI could be validly made without a warrant; and (2) Whether there was probable cause for
prosecuting petitioners for violation of P.D. No. 1829. We answer these questions in the negative.

First. In view of Art. III, 2 of the Constitution, the rule is that no arrest may be made except by virtue
of a warrant issued by a judge after examining the complainant and the witnesses he may produce
and after finding probable cause to believe that the person to be arrested has committed the crime.
The exceptions when an arrest may be made even without a warrant are provided in Rule 113, 5 of
the Rules of Criminal Procedure which reads:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of the facts
indicating that the person to be arrested has committed it;

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.

There is no question that this case does not fall under paragraphs (a) and (c). The arresting officers
in this case did not witness the crime being committed. Neither are the students fugitives from justice
nor prisoners who had escaped from confinement. The question is whether paragraph (b) applies
because a crime had just been committed and the NBI agents had personal knowledge of facts
indicating that Narag and Taparan were probably guilty.

Respondents contend that the NBI agents had personal knowledge of facts gathered by them in the
course of their investigation indicating that the students sought to be arrested were the perpetrators
of the crime.[6] They invoke the ruling in People v. Tonog, Jr.[7] in which it was held:

It may be that the police officers were not armed with a warrant when they apprehended Accused-
appellant. The warrantless arrest, however, was justified under Section 5 (b), Rule 133 (sic) of the
1985 Rules of Criminal Procedure providing that a peace officer may, without a warrant, arrest a
person "when an offense has in fact just been committed and he has personal knowledge of facts
indicating that the person to be arrested has committed it." In this case, Pat. Leguarda, in effecting
the arrest of Accused-appellant, had knowledge of facts gathered by him personally in the course of
his investigation indicating that Accused-appellant was one of the perpetrators.

In that case, the accused voluntarily went upon invitation of the police officer who later noticed the
presence of blood stains on the pants of the accused. Upon reaching the police station, the accused
was asked to take off his pants for examination at the crime laboratory. The question in that case
involved the admissibility of the maong pants taken from the accused. It is clear that Tonog does not
apply to this case. First, the accused in that case voluntarily went with the police upon the latter's
invitation. Second, the arresting officer found blood stains on the pants of the accused, on the basis
of which he concluded that the accused probably committed the crime for which reason the latter
was taken into custody. Third, the arrest was made on the same day the crime was committed. In
the words of Rule 113, 5(b), the crime had "just been committed" and the arresting officer had
"personal knowledge of the facts indicating that the person to be arrested had committed it."

In contrast, the NBI agents in the case at bar tried to arrest Narag and Taparan four days after the
commission of the crime. They had no personal knowledge of any fact which might indicate that the
two students were probably guilty of the crime. What they had were the supposed positive
identification of two alleged eyewitnesses, which is insufficient to justify the arrest without a warrant
by the NBI.

We have already explained what constitutes "personal knowledge" on the part of the arresting
officers:

"Personal knowledge" of facts in arrests without a warrant under Section 5 (b) of Rule 113 must be
based upon "probable cause" which means an "actual belief or reasonable grounds of suspicion."
The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting
officers, the suspicion that the person to be arrested is probably guilty of committing the offense is
based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create
the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be
founded on probable cause, coupled with good faith on the part of the peace officers making the
arrest.[8]

Indeed, at the time Dennis Venturina was killed, these agents were nowhere near the scene of the
crime. When respondent Dizon and his men attempted to arrest Taparan and Narag, the latter were
not committing a crime nor were they doing anything that would create the suspicion that they were
doing anything illegal. On the contrary, Taparan and Narag, under the supervision of the U.P. police,
were taking part in a peace talk called to put an end to the violence on the campus.

To allow the arrest which the NBI intended to make without warrant would in effect allow them to
supplant the courts. The determination of the existence of probable cause that the persons to be
arrested committed the crime was for the judge to make. The law authorizes a police officer or even
an ordinary citizen to arrest criminal offenders only if the latter are committing or have just committed
a crime. Otherwise, we cannot leave to the police officers the determination of whom to apprehend
if we are to protect our civil liberties. This is evident from a consideration of the requirements before
a judge can order the arrest of suspects. Art. III, 2 of the Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.

For the failure of the NBI agents to comply with constitutional and procedural requirements, we hold
that their attempt to arrest Taparan and Narag without a warrant was illegal.

Second. In ordering the prosecution of petitioners for violation of P.D. No. 1829, 1(c), the Office of
the Ombudsman stated in its memorandum dated September 8, 1997:

From the facts adduced, it is submitted that respondents had reasonable ground to suspect that the
SJ members sought to be arrested participated in the clubbing of Dennis Venturina, eventually
leading to the latter's demise. It must be remembered that these SJ members were positively
identified by two eyewitnesses. A reasonably prudent mind could not just ignore this positive
identification. In fact, respondents do not dispute the identification made on the alleged participants
in the clubbing of Dennis Venturina.

Respondent U.P. officials justify their act of barring the apprehending officers from arresting the SJ
members on the ground that the warrantless arrest sought to be effected did not conform with Sec.
5, Rule 113 of the Rules of Court; thereby averting, what would be in their opinion, an illegal arrest.
While this justification may, at best, show their good faith, it does not detract from the fact that they
had reasonable ground to suspect that the SJ members sought to be arrested committed the heinous
crime of murder as a result of the positive identification made by two eyewitnesses. Besides, the
reliance on the alleged illegality of the arrest just shows the clear intent, on respondents' part, to
wilfully obstruct, frustrate or, at the least, delay the apprehension and investigation and prosecution
of the SJ members positively identified.

To be sure, respondents knew fully well that inquest proceedings follow warrantless arrests. It is in
this forum where the prosecutor conducting the inquest may rule on their opinion on whether or not
the warrantless arrest effected was valid; he having the quasijudicial authority to rule on this matter.
Of course, there are various remedies under the law which respondents may have likewise availed
of or resorted to in order to secure the liberty of the SJ members had the latter been arrested, without
prejudice to any criminal or administrative actions that they may have filed against the arresting NBI
agents. However, it appears that they took the law into their own hands in a manner that obstructed
and delayed the investigation being conducted by a law enforcement agency like the NBI. They
facilitated the escape of the two SJ members pinpointed by eyewitnesses as among those who
clubbed to death Dennis Venturina.[9]

The question is not whether petitioners had reasonable grounds to believe that the suspects were
guilty. The question is whether the suspects could be arrested even in the absence of a warrant
issued by a court, considering that, as already explained, the attempted arrest did not fall under any
of the cases provided in Rule 113, 5. Regardless of their suspicion, petitioners could not very well
have authorized the arrest without warrant of the students or even effected the arrest themselves.
Only courts could decide the question of probable cause since the students were not being arrested
in flagrante delicto. As the Special Prosecutor stated in his memorandum, dated May 18, 1995, in
recommending the dismissal of the case against petitioners:

All told, the evidence adduced in this case do not show that on the night of December 12, 1994, the
accused knew or had reasonable ground to believe that the students who were then at the U.P.
police headquarters had committed a crime. Neither were the warrantless arrest being sought to be
made on campus that night, legal. The U.P. officials then present had every right to prevent the
commission of illegal arrests of students on campus.

Based on all the foregoing, the obvious conclusion is that, there is no probable cause to charge
Posadas, Torres-Yu, Lambino, Bentain and Atty. Villamor of violating Section 1(c) of P.D. 1829.
Probable cause is defined as "sufficient ground to engender a well founded belief that a crime
cognizable by the court has been committed and that the respondents are probably guilty thereof
and should be held for trial" (Section 1, Rule 12, Rules of Court). The absence of an arrest warrant,
the absence of knowledge or reasonable ground on the part of the accused to believe that the
students had committed a crime, the absence of any law punishing refusal to attend an investigation
at the NBI, all show that there is no sufficient ground to charge the accused with Obstruction of
Justice. On the contrary, the circumstances show that the accused, in safeguarding the rights of
students, were acting within the bounds of law.[10]

Third. Petitioners are being prosecuted under the following provision of P.D. No. 1829:

SEC. 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to
6,000 pesos, or both, shall be imposed upon any person who knowingly or wilfully obstructs,
impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of
criminal cases by committing any of the following acts:

....

(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable
ground to believe or suspect, has committed any offense under existing penal laws in order to
prevent his arrest, prosecution and conviction;

The rule, of course, is that a criminal prosecution cannot be enjoined.[11] But as has been held,
"[i]nfinitely more important than conventional adherence to general rules of criminal procedure is
respect for the citizen's right to be free not only from arbitrary arrest and punishment but also from
unwarranted and vexatious prosecution."[12] As we held in the similar case of Venus v. Desierto:[13]
Conformably with the general rule that criminal prosecutions may not be restrained either through a
preliminary or final injunction or a writ of prohibition, this Court ordinarily does not interfere with the
discretion of the Ombudsman to determine whether there exists reasonable ground to believe that a
crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the
corresponding information with the appropriate courts. There are, however, settled exceptions to this
rule, such as those enumerated in Brocka v. Enrile, to wit:

a. To afford protection to the constitutional rights of the accused (Hernandez vs. Albano, et al. L-
19272, January 25, 1967, 19 SCRA 95);

b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of
actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs.
Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);

c. When there is a prejudicial question which is sub judice (De Leon vs. Mabanag, 70 Phil. 202);

d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil. 62);

e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs. Rafferty, 33
Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);

f. When double jeopardy is clearly apparent (Sangalang vs. People and Alvendia, 109 Phil. 1140);

g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795, October 29,
1966, 18 SCRA 616);

h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R. No. 4760,
March 25, 1960);

i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto vs. Castelo,
18 L.J. (1953), cited in Raoa vs. Alvendia, CA G.R. No. 30720-R, October 8, 1962; Cf. Guingona, et
al. vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577);

j. Where there is clearly no prima facie case against the accused and a motion to quash on that
ground has been denied (Salonga vs. Pao, et al., L-59524, February 18, 1985, 134 SCRA 438); and

k. Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful
arrest of petitioners (Rodriguez vs. Castelo, L- 6374, August 1, 1953) cited in Regalado, Remedial
Law Compendium, p. 188, 1988 Ed.)

In this case, petitioners' objection to the arrest of the students cannot be construed as a violation of
P.D. No. 1829, 1(c) without rendering it unconstitutional. Petitioners had a right to prevent the arrest
of Taparan and Narag at the time because their attempted arrest was illegal. Indeed, they could not
have interfered with the prosecution of the guilty parties because in fact petitioner Posadas had
asked the NBI for assistance in investigating the death of Venturina. On the other hand, just because
petitioners had asked for assistance from the NBI did not authorize respondent Dizon and his men
to disregard constitutional requirements.

The Office of the Ombudsman, however, found that the intervention by petitioners resulted in the
escape of the student suspects as petitioner Posadas and Atty. Villamor failed in their undertaking
to surrender the students the following day.[14] Hence, the information against them charged that
petitioners willfully obstructed the apprehension of the suspects Taparan and Narag, leading to the
successful escape of these students and another principal suspect, a certain Joel Carlo Denosta.[15]
The student suspect mentioned by both the resolution dated May 18, 1995 and the information, a
certain Joel Carlo Denosta, was not one of the students whose arrest by the NBI agents petitioners
prevented on December 12, 1994. Moreover, whether or not petitioner Posadas surrendered the
student suspects to the NBI agents the following day is immaterial. In the first place, they were not
sureties or bondsmen who could be held to their undertaking. In the second place, the fact remains
that the NBI agents could not have validly arrested Taparan and Narag at the U.P. Police Station as
they did not have a warrant at that time. Hence, only the NBI agents themselves could be faulted for
their inability to arrest Taparan and Narag. If the NBI believed the information given to them by the
supposed eyewitnesses, the NBI should have applied for a warrant before making the attempted
arrest instead of taking the law into their own hands. That they chose not to and were prevented
from making an arrest for lack of a warrant is their responsibility alone. Petitioners could not be held
accountable therefor.

We understand that the highly publicized death of Dennis Venturina caused a public clamor to bring
to justice those responsible therefor. We also recognize the pressures faced by law enforcement
agencies to effect immediate arrests and produce results without unnecessary delay. But it must be
remembered that the need to enforce the law cannot be justified by sacrificing constitutional rights.
The absence of probable cause for the filing of an information against petitioners is evident from the
records. They cannot be indicted because they dared to uphold the rights of the students. Hence,
we see no other recourse but to enjoin the Sandiganbayan and the Ombudsman from proceeding
with the case against petitioners.

Fourth. The conclusion we have thus far reached makes it unnecessary to consider petitioners'
challenge to P.D. No. 1829, 1(c). For a cardinal rule of constitutional adjudication is that the Court
will not pass upon a constitutional question although properly presented by the record if the case
can be disposed of on some other ground such as the application of a statute or general law.[16]

WHEREFORE, the petition is GRANTED and the Ombudsman and his agents are hereby prohibited
from prosecuting petitioners for violation of P.D. No. 1829 1(c) as a result of the incident complained
of in Criminal Case No. 22801 and the Sandiganbayan is ORDERED to dismiss the information in
Criminal Case No. 22801 against petitioners.

SO ORDERED.

15. [G.R. No. 144261-62. May 9, 2001]

PRUDENTE D. SOLLER, M.D., PRECIOSA M. SOLLER, M.D., RODOLFO I. SALCEDO,


JOSEFINA B. MORADA, MARIO M. MATINING, and ROMMEL M. LUARCA, petitioners vs. THE
HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

DECISION

GONZAGA-REYES, J.:

This special civil action for certiorari, prohibition and mandamus raises the issue of the propriety of
the assumption of jurisdiction by the Sandiganbayan[1] in Criminal Cases Nos. 25521 and 25522
both entitled People of the Philippines vs. Prudente D. Soller, Preciosa M. Soller, Rodolfo Salcedo,
Josefina Morada, Mario Matining and Rommel Luarca wherein petitioners are charged with
Obstruction of Apprehension and Prosecution of Criminal Offenders as defined and penalized under
P.D. No. 1829. The grounds for petitioners Motion to Quash the Informations against them are that
only petitioner Prudente D. Soller occupied a position classified as Grade 27 and higher and because
the offenses charged were not committed by him in violation of his office as Municipal Mayor of
Bansud, Oriental Mindoro.

It appears that in the evening of March 14, 1997, Jerry Macabael a municipal guard, was shot and
killed along the national highway at Bansud, Oriental Mindoro while driving a motorcycle together
with petitioner Sollers son, Vincent M. Soller. His body was brought to a medical clinic located in the
house of petitioner Dr. Prudente Soller, the Municipal Mayor, and his wife Dr. Preciosa Soller, who
is the Municipal Health Officer. The incident was reported to and investigated by petitioner SPO4
Mario Matining. An autopsy was conducted on the same night on the cadaver of Jerry by petitioner
Dr. Preciosa Soller with the assistance of petitioner Rodolfo Salcedo, Sanitary Inspector, and
petitioner Josefina Morada, Rural Health Midwife.

On the basis of the foregoing incident, a complaint was later filed against the petitioners by the widow
of Jerry Macabael with the Office of the Ombudsman charging them with conspiracy to mislead the
investigation of the fatal shootout of Jerry Macabael by (a) altering his wound (b) concealing his
brain; (c) falsely stating in police report that he had several gunshot wounds when in truth he had
only one; and d) falsely stating in an autopsy report that there was no blackening around his wound
when in truth there was.

Petitioners spouses Soller denied having tampered with the cadaver of Jerry Macabael, and claimed,
among others that Jerry Macabael was brought to their private medical clinic because it was there
where he was rushed by his companions after the shooting, that petitioner Prudente Soller, who is
also a doctor, was merely requested by his wife Preciosa Soller, who was the Municipal Health
Officer, to assist in the autopsy considering that the procedure involved sawing which required male
strength, and that Mrs. Macabaels consent was obtained before the autopsy. The two (2) police
officers denied having planted three (3) shells at the place where the shooting took place.

The Office of the Ombudsman recommended the filing of an Information for Obstruction of Justice
(Violation of P.D. 1829), and two (2) Informations[2] were filed with the Sandiganbayan which were
docketed as Criminal Cases Nos. 25521 and 25522. The two (2) informations respectively read as
follows:

Criminal Case No. 25521

The undersigned Graft Investigation Officer I, Office of the Deputy Ombudsman for Luzon, hereby
accuses PRUDENTE SOLLER, PRECIOSA SOLLER, MARIO MATINING, ROMMEL LUARCA,
RODOLFO SALCEDO, and JOSIE MORADA, of committing the offense of Obstruction of
Apprehension and Prosecution of Criminal Offenders as defined and penalized under Section 1,
Paragraph b of P.D. 1829, committed as follows:

That on or about March 14, 1997, prior or subsequent thereto, at the Municipality of Bansud, Oriental
Mindoro and within the jurisdiction of this Honorable Court, the above name accused, all public
officers, then being the Municipal Mayor, Municipal Health Officer, SPO II, PO 1, Sanitary Inspector
and Midwife, respectively, all of said municipality, conspiring and confederating with one another,
did then and there wilfully, unlawfully, and criminally alter and suppress the gunshot wound and
conceal the brain of JERRY MACABAEL with intent to impair its veracity, authenticity, and availability
as evidence in the investigation of criminal case for murder against the accused Vincent Soller, the
son of herein respondents.

CONTRARY TO LAW.

Criminal Case No. 25522

The undersigned Graft Investigation Officer, I, Office of the Deputy Ombudsman for Luzon, hereby
accuses PRUDENTE SOLLER, PRECIOSA SOLLER, MARIO MATINING, ROMMEL LUARCA,
RODOLFO SALCEDO, and JOSIE MORADA, of committing the offense of Obstruction of
Apprehension and Prosecution of Criminal Offenders as defined and penalized under Section 1,
Paragraph b of P.D. 1829, committed as follows:

That on or about March 14, 1997, prior or subsequent thereto, at the Municipality of Bansud, Oriental
Mindoro and within the jurisdiction of this Honorable Court, the above name accused, all public
officers, then being the Municipal Mayor, Municipal health Officer, SPO II, PO 1, Sanitary Inspector
and Midwife, respectively, all of said municipality, conspiring and confederating with one another,
did then and there wilfully, unlawfully, and criminal give false and fabricated information in the
autopsy report and police report to mislead or prevent the law enforcement agency, from
apprehending the offender by reporting that there are several gunshot wounds in the body of the
victim, JERRY MACABAEL and that there is no tattooing (blackening) around the wound of the said
victim when in truth and in fact, there is only one gunshot wound and there is tattooing (blackening)
around the wound which would indicate that the victim was shot by Vincent Soller, the son of the
herein respondents spouses Prudente and Preciosa Soller.

CONTRARY TO LAW.

Petitioners filed a Motion to Quash on the principal ground that the Sandiganbayan had no
jurisdiction over the offenses charged; this motion was opposed by respondent People. In its assailed
Order dated April 14, 2000, the Sandiganbayan denied petitioners Motion to Quash on the ground
that the accusation involves the performance of the duties of at least one (1) of the accused public
officials, and if the Mayor is indeed properly charged together with that official, then the
Sandiganbayan has jurisdiction over the entire case and over all the co-accused. The Order stated
that the accused is the Mayor of the municipality where the alleged incident took place and, therefore,
any attempt to deviate or to present false evidence in connection with a criminal offense committed
in his municipality for which he is charged would be an offense also in which the accused Mayor
would be probably held accountable before this Court.

Motion for Reconsideration of the above order was filed on the premise that it is not among the
functions of the mayor to conduct autopsies so that any misdeed, if indeed there was any, could not
be an offense which would put him under the jurisdiction of the court. Motion for Reconsideration
was denied, the Sandiganbyan ruling that:

The enumeration of the functions of the mayor indicate very clearly that he is the primary executive
and, therefore, necessarily the primary peace officer of the municipality, for which reason, any action
on his part which deviates from that function is an office-related offense. In this particular instance,
the accused is charged for having cooperated or co-participated with another public official of lower
rank in the same municipality in the supposed falsification of the results of an autopsy. Additionally,
even if the functions of an autopsy were totally unrelated to any of the administrative or executive
functions over which the mayor may have supervision and, more specially, control, the fact of the
matter is that the jurisdiction of the Court covers not only the offenses committed by the officials of
Grade Level 27 or higher as the principal accused but even where such officials are also accused
together with some other public officials who may be at a level below Grade Level 27 in connection
with the performance of their duties.

In this instance, accused Mayor Prudente D. Soller, Sr. who occupies a position at Grade Level 27,
is co-accused with his wife, the Municipal Health Officer who occupies a position at Grade Level 24,
so that, necessarily, the offense attributed to the lower ranking officer elevates the entire case to this
Court primarily because somebody over whom this Court has jurisdiction, the Mayor, is accused
together with the lower ranking officer.[3]

Hence, this petition alleging that-

RESPONDENT SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR


WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN HOLDING
THAT IT HAS JURISDICTION OVER THE OFFENSE CHARGED IN SUBJECT CRIMINAL CASES
NOS. 25521 and 25522.[4]

Citing Section 4 of P.D. 1606 as amended, which defines the jurisdiction of the Sandiganbayan,
petitioners claim that for an offense to fall within the jurisdiction of the Sandiganbayan, the offense
must have been committed by the officials enunciated in paragraph (a) in relation to their office, i.e.
it should be intimately connected with the office of the offender, and should have been perpetrated
while the offender was in the performance of his official functions. Moreover, these requisites must
all be alleged in the information. Petitioners assert that in the subject criminal cases, the Informations
do not contain factual averments showing that they committed the acts charged in relation to their
office, i.e., the acts charged are intimately connected with their respective offices and were
perpetrated by them while they were in the performance of their duties and functions.

On the other hand, respondent People of the Philippines, represented by the Office of the
Ombudsman, through the Office of the Special Prosecutor, posits that even if the offense charged
was not committed by the accused while in the performance of his official functions, the same could
still be considered done in relation to his office if the acts were committed in line of duty. Respondents
position is that an offense may be considered committed in relation to office if it arose from misuse
or abuse of public office or from non-performance of an official duty or function; thus the offense of
falsifying autopsy and police reports is office-related considering that among the duties and functions
of the municipal mayor in the exercise of general supervision and control over all programs, projects,
services and activities of the municipal government, is that he shall ensure that all executive officials
and employees of the municipality faithfully discharge their duties and functions. The fact that the
informations do not allege that the acts charged were committed by petitioner Prudente Soller while
he was in the performance of his official functions or duties is not a fatal defect, as the conclusion of
law that his acts are in violation of his duties as municipal mayor could necessarily be deduced from
the informations.

Petitioners, in their Reply, reiterate that the factual averments in the Information were fatally defective
in view of the absence of any specific allegation that would indicate that the crimes charged were
committed by the defendants in line of duty or in the performance of their official functions.

The petition is meritorious.

The rule is that in order to ascertain whether a court has jurisdiction or not, the provisions of the law
should be inquired into.[5] Furthermore, the jurisdiction of the court must appear clearly from the
statute law or it will not be held to exist. It cannot be presumed or implied. For this purpose in criminal
cases, the jurisdiction of the court is determined by the law at the time of the commencement of the
action.[6]

The action here was instituted with the filing of the Informations on May 25, 1999 charging the
petitioners with the offense of Obstruction of Apprehension and Prosecution of Criminal Offenders
as defined and penalized under Section 1, Paragraph b of P.D. 1829. The applicable statutory
provisions are those of P.D. No. 1606 as last amended by the Republic Act No. 8249. Section 4 of
P.D. No. 1606 as amended provides insofar as pertinent:

SEC. 4. Jurisdiction - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases
involving:

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and
Corruption Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the
Revised Penal Code, where one or more of the accused are officials occupying the following
positions in the government, whether in a permanent, acting or interim capacity, at the time of the
commission of the offense:

xxx xxx xxx

(5) All other national and local officials classified as Grade 27 and higher under the Compensation
and Position Classification Act of 1989.

xxx xxx xxx

b. Other offenses or felonies whether simple or complexed with other crime committed by the public
officials and employees mentioned in subsection a of this section in relation to their office.

xxx xxx xxx


In cases where none of the accused are occupying positions corresponding to salary Grade 27 or
higher, as prescribed in the said Republic Act 6758, or military and PNP officers mentioned above,
exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan
trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their
jurisdictions as provided by Batas Pambansa Blg. 129, amended.

xxx xxx xxx

In Binay vs. Sandiganbayan,[7] this Court held that the Municipal Mayor, who occupies Salary Grade
27 in the hierarchy of positions in the government under Republic Act No. 6758 and the Index of
Occupational Services. Position Titles and Salary Grades, falls within the exclusive original
jurisdiction of the Sandiganbayan.

The bone of contention here is whether the offenses charged may be considered as committed in
relation to their office as this phrase is employed in the above-quoted Section 4.

As early as Montilla vs. Hilario,[8] this Court has interpreted the requirement that an offense be
committed in relation to the office to mean that the offense cannot exist without the office or that the
office must be a constituent element of the crime as defined and punished in Chapter Two to Six,
Title Seven of the Revised Penal Code (referring to the crimes committed by the public officers).
People vs. Montejo[9] enunciated the principle that the offense must be intimately connected with
the office of the offender and perpetrated while he was in the performance, though improper or
irregular of his official functions. The Court, speaking through Chief Justice Concepcion said that
although public office is not an element of the crime of murder in (the) abstract, the facts in a
particular case may show that -

xxx the offense therein charged is intimately connected with (the accuseds) respective offices and
was perpetrated while they were in the performance though improper or irregular, of their official
functions. Indeed (the accused) had no personal motive to commit the crime and they would not
have committed it had they not held their aforesaid offices. The co-defendants of respondent Leroy
S. Brown obeyed his instructions because he was their superior officer, as Mayor of Basilan City.[10]

The cited rulings in Montilla vs. Hilario and in People vs. Montejo were reiterated in Sanchez vs.
Demetriou,[11] Republic vs. Asuncion,[12] and Cunanan vs. Arceo.[13] The case of Republic vs.
Asuncion categorically pronounced that the fact that offense was committed in relation to the office
must be alleged in the information:

That the public officers or employees committed the crime in relation to their office, must, however,
be alleged in the information for the Sandiganbayan to have jurisdiction over a case under Section
4 (a) (2). This allegation is necessary because of the unbending rule that jurisdiction is determined
by the allegations of the information.[14]

For this purpose what is controlling is not whether the phrase committed in violation to public office
appears in the information; what determines the jurisdiction of the Sandiganbayan is the specific
factual allegation in the information that would indicate close intimacy between the discharge of the
accuseds official duties and the commission of the offense charged in order to qualify the crime as
having been committed in relation to public office.[15]

In this case, the Informations subject of Criminal Cases Nos. 25521 and 25522 quoted earlier, fail to
allege that petitioners had committed the offenses charged in relation to their offices. Neither are
there specific allegations of facts to show the intimate relation/connection between the commission
of the offense charged and the discharge of official functions of the offenders, i.e. that the obstruction
of and apprehension and prosecution of criminal offenders was committed in relation to the office of
petitioner Prudente Soller, whose office as Mayor is included in the enumeration in Section 4 (a) of
P.D. 1606 as amended. Although the petitioners were described as being all public officers, then
being the Municipal Mayor, Municipal Health Officer, SPO II, PO I, Sanitary Inspector and Midwife,
there was no allegation that the offense of altering and suppressing the gunshot wound of the victim
with intent to impair the veracity, authenticity and availability as evidence in the investigation of the
criminal case for murder (Criminal Case No. 25521) or of giving false and fabricated information in
the autopsy report and police report to mislead the law enforcement agency and prevent the
apprehension of the offender (Criminal Case No. 25522) was done in the performance of official
function. Indeed the offenses defined in P.D. 1829 may be committed by any person whether a public
officer or a private citizen, and accordingly public office is not an element of the offense. Moreover,
the Information in Criminal Case No. 25522 states that the fabrication of information in the police
and autopsy report would indicate that the victim was shot by Vincent Soller, the son of herein
petitioners spouses Prudente and Preciosa Soller. Thus there is a categorical indication that the
petitioners spouses Soller had a personal motive to commit the offenses and they would have
committed the offenses charged even if they did not respectively hold the position of Municipal Mayor
or Municipal Health Officer.

A cursory reading of the duties and functions of the Municipal Mayor as enumerated in Section 444
of the Local Government Code will readily show that the preparation of police and autopsy reports
and the presentation and gathering of evidence in the investigation of criminal cases are not among
such duties and functions, and the broad responsibility to maintain peace and order cannot be a
basis for construing that the criminal acts imputed to petitioner Mayor fall under his functions as
Municipal Mayor.[16] What is obvious is that petitioners spouses probably acted as the parents of
the alleged assailant and if at all, were motivated by personal reasons rather than official duty.

Consequently, for failure to show in the informations that the charges were intimately connected with
the discharge of the official functions of accused Mayor Soller, the offenses charged in the subject
criminal cases fall within the exclusive original function of the Regional Trial Court, not the
Sandiganbayan.

WHEREFORE, the petition is GRANTED and the challenged orders are SET ASIDE and declared
NULL and VOID for lack of jurisdiction. No costs.

SO ORDERED.

16. JUDGE ADORACION G. ANGELES,


- versus -
HON. MANUEL B. GAITE, Acting Deputy Executive Secretary for Legal Affairs; HON. WALDO
Q. FLORES, Senior Deputy Executive Secretary, Office of the President; Former DOJ
SECRETARY HERNANDO B. PEREZ (now substituted by the Incumbent DOJ Secretary RAUL
GONZALES); Former PROV. PROS. AMANDO C. VICENTE (now substituted by the Incumbent
PROV. PROS. ALFREDO L. GERONIMO); PROS. BENJAMIN R. CARAIG, Malolos, Bulacan;
and MICHAEL T. VISTAN,

Before this Court is a Petition for Review,[1] under Rule 43 of the 1997 Rules of Civil Procedure,
assailing the February 13, 2004 Decision[2] and September 16, 2004 Resolution[3] of the Court of
Appeals (CA) in CA-G.R. SP No. 76019.

The facts of the case, as alleged by petitioner and likewise adopted by the CA, are as follows:
Petitioner [Judge Adoracion G. Angeles] was the foster mother of her fourteen (14) year-old
grandniece Maria Mercedes Vistan who, in April 1990 was entrusted to the care of the former by the
girls grandmother and petitioners sister Leonila Angeles Vda. de Vistan when the child was orphaned
at the tender age of four.

Petitioner provided the child with love and care, catered to her needs, sent her to a good school and
attended to her general well-being for nine (9) memorable and happy years. The child also
reciprocated the affections of her foster mother and wrote the latter letters.

Petitioners love for the child extended to her siblings, particularly her half-brother respondent Michael
Vistan, a former drug-addict, and the latters family who were regular beneficiaries of the
undersigneds generosity. Michael would frequently run to the undersigned for his variety of needs
ranging from day to day subsistence to the medical and hospital expenses of his children.

In the evening of 11 April 1999, Michael Vistan had a falling out with petitioner for his failure to do a
very important errand for which he was severely reprimanded over the phone. He was told that from
then on, no assistance of any kind would be extended to him and that he was no longer welcome at
petitioners residence.

Feeling thwarted, he, in conspiracy with his co-horts (sic), retaliated on 12 April 1999 by inducing his
half-sister, Maria Mercedes, to leave petitioners custody. Michael used to have free access to the
undersigneds house and he took the girl away while petitioner was at her office.

In the evening of that day, 12 April 1999, petitioner, accompanied by her friend Ines Francisco,
sought Michael Vistan in his residence in Sta. Cruz, Guiguinto, Bulacan to confront him about the
whereabouts of his half-sister. He disclosed that he brought the girl to the residence of her maternal
relatives in Sta. Monica, Hagonoy, Bulacan. Petitioner then reported the matter and requested for
the assistance of the 303rd Criminal Investigation and Detective Group Field Office in Malolos,
Bulacan to locate the girl. Consequently, PO3 Paquito M. Guillermo and Ruben Fred Ramirez
accompanied petitioner and her friend to Hagonoy, Bulacan where they coordinated with police
officers from the said place. The group failed to find the girl. Instead, they were given the run-around
as the spouses Ruben and Lourdes Tolentino and spouses Gabriel and Olympia Nazareno misled
them with the false information that Maria Mercedes was already brought by their brother Carmelito
Guevarra and the latters wife Camilia to Casiguran, Quezon Province.

On 13 April 1999, petitioner filed a complaint for Kidnapping under Article 271 of the Revised Penal
Code (Inducing a Minor to Abandon His Home) against Michael Vistan, the Tolentino spouses, the
Nazareno spouses and Guevarra spouses, all maternal relatives of Maria Mercedes Vistan.

Warrants of arrest were subsequently issued against them and to evade the long arm of the law,
Michael Vistan went into hiding. He dragged along with him his half-sister Maria Mercedes.
From 12 April 1999 to 16 April 1999, Michael Vistan, with his little sister in tow, shuttled back and
forth from Guiguinto to Hagonoy, Bulacan as well as in Manila and Quezon City, living the life of a
fugitive from justice. He eventually brought the girl to ABS-CBN in Quezon City where he made her
recite a concocted tale of child abuse against herein petitioner hoping that this would compel the
latter to withdraw the kidnapping charge which she earlier filed.

In the early morning of 16 April 1999, Michael Vistan brought Maria Mercedes to the DSWD after he
felt himself cornered by the police dragnet laid for him.

Prompted by his overwhelming desire to retaliate against petitioner and get himself off the hook from
the kidnapping charge, Michael Vistan had deliberately, maliciously, selfishly and insensitively
caused undue physical, emotional and psychological sufferings to Maria Mercedes Vistan, all of
which were greatly prejudicial to her well-being and development.

Thus, on 1 December 1999, petitioner filed a complaint against Michael Vistan before the Office of
the Provincial Prosecutor in Malolos, Bulacan for five counts of Violation of Section 10 (a), Article VI
of RA 7610, otherwise known as the Child Abuse Act, and for four counts of Violation of Sec. 1 (e)
of PD 1829. She likewise filed a complaint for Libel against Maria Cristina Vistan, aunt of Michael
and Maria Mercedes.

In a Resolution dated March 3, 2000, Investigating Prosecutor Benjamin R. Caraig recommended


upheld (sic) the charge of Violation of RA 7160 but recommended that only one Information be filed
against Michael Vistan. The charge of Violation of PD 1829 was dismissed. Nonetheless, the
Resolution to uphold the petitioners complaint against Maria Cristina Vistan must (sic) remained.

However, Provincial Prosecutor Amando C. Vicente denied the recommendation of the Investigating
Prosecutor that Michael Vistan be indicted for Violation RA 7610. He also approved the
recommendation for the dismissal of the charge for Violation of PD 1829.

On 14 April 2000, petitioner filed a Motion for Partial Reconsideration. This was denied in a
Resolution dated 28 April 2000.

Petitioner then filed a Petition for Review before the Department of Justice on 18 May 2000. She
also filed a Supplement thereto on 19 May 2000.

In a Resolution dated 5 April 2001, Undersecretary Manuel A.J. Teehankee, acting for the Secretary
of Justice, denied the petition for review. The undersigneds Motion for Reconsideration filed on 25
April 2001 was likewise denied by then DOJ Secretary Hernando B. Perez in a Resolution dated 15
October 2001.

On 26 November 2001, the undersigned filed a Petition for Review before the Office of President.
The petition was dismissed and the motion for reconsideration was denied before said forum
anchored on Memorandum Circular No. 58 which bars an appeal or a petition for review of
decisions/orders/resolutions of the Secretary of Justice except those involving offenses punishable
by reclusion perpetua or death.[4]

On March 18, 2003, petitioner filed a petition for review[5] before the CA assailing the Order of the
Office of President. Petitioner argued that the Office of the President erred in not addressing the
merits of her petition by relying on Memorandum Circular No. 58, series of 1993. Petitioner assailed
the constitutionality of the memorandum circular, specifically arguing that Memorandum Circular No.
58 is an invalid regulation because it diminishes the power of control of the President and bestows
upon the Secretary of Justice, a subordinate officer, almost unfettered power.[6] Moreover, petitioner
contended that the Department of Justice (DOJ) erred in dismissing the complaint against
respondent Michael Vistan for violations of Presidential Decree No. 1829[7] (PD No. 1829) and for
violation of Republic Act No. 7610[8] (RA No. 7610).[9]

On February 13, 2004, the CA rendered a Decision, dismissing the petition, the dispositive portion
of which reads:

WHEREFORE, premises considered, the instant petition is hereby DISMISSED for lack of merit.[10]

The CA affirmed the position of the Solicitor General (OSG) to apply the doctrine of qualified political
agency, to wit:

When the President herself did not revoke the order issued by respondent Acting Deputy Executive
Secretary for Legal Affairs nor saw the necessity to exempt petitioners case from the application of
Memorandum Circular No. 58, the act of the latter is deemed to be an act of the President herself.[11]

Moreover, the CA ruled that the facts of the case as portrayed by petitioner do not warrant the filing
of a separate Information for violation of Section 1(e) of PD No. 1829.[12] Lastly, the CA ruled that
the DOJ did not err when it dismissed the complaint for violation for RA No. 7610 as the same was
not attended by grave abuse of discretion.
Petitioner filed a Motion for Reconsideration,[13] which was, however, denied by the CA in a
Resolution dated September 16, 2004.

Hence, herein petition, with petitioner raising the following assignment of errors, to wit:

1. THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE RELIANCE OF THE


OFFICE OF THE PRESIDENT IN THE PROVISIONS OF MEMORANDUM CIRCULAR NO. 58.

2. THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE DISMISSAL BY THE


DOJ SECRETARY OF THE COMPLAINT OF VIOLATION OF SECTION 1(E). P.D. 1829
(OBSTRUCTION OF JUSTICE) AGAINST PRIVATE RESPONDENT MICHAEL VISTAN.

3. THE HONORABLE COURT OF APPEALS ERRED IN UPHOLDING THE DISMISSAL OF THE


COMPLAINT OF VIOLATION OF R.A. 7610 (CHILD ABUSE) AGAINST PRIVATE RESPONDENT
MICHAEL VISTAN.[14]

The petition is without merit.

Petitioner's arguments have no leg to stand on. They are mere suppositions without any basis in
law. Petitioner argues in the main that Memorandum Circular No. 58 is an invalid regulation, because
it diminishes the power of control of the President and bestows upon the Secretary of Justice, a
subordinate officer, almost unfettered power.[15] This argument is absurd. The President's act of
delegating authority to the Secretary of Justice by virtue of said Memorandum Circular is well within
the purview of the doctrine of qualified political agency, long been established in our jurisdiction.

Under this doctrine, which primarily recognizes the establishment of a single executive, "all executive
and administrative organizations are adjuncts of the Executive Department; the heads of the various
executive departments are assistants and agents of the Chief Executive; and, except in cases where
the Chief Executive is required by the Constitution or law to act in person or the exigencies of the
situation demand that he act personally, the multifarious executive and administrative functions of
the Chief Executive are performed by and through the executive departments, and the acts of the
secretaries of such departments, performed and promulgated in the regular course of business, are,
unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief
Executive.[16] The CA cannot be deemed to have committed any error in upholding the Office of the
President's reliance on the Memorandum Circular as it merely interpreted and applied the law as it
should be.

As early as 1939, in Villena v. Secretary of Interior,[17] this Court has recognized and adopted from
American jurisprudence this doctrine of qualified political agency, to wit:
x x x With reference to the Executive Department of the government, there is one purpose which is
crystal-clear and is readily visible without the projection of judicial searchlight, and that is, the
establishment of a single, not plural, Executive. The first section of Article VII of the Constitution,
dealing with the Executive Department, begins with the enunciation of the principle that "The
executive power shall be vested in a President of the Philippines." This means that the President of
the Philippines is the Executive of the Government of the Philippines, and no other. The heads of
the executive departments occupy political positions and hold office in an advisory capacity, and, in
the language of Thomas Jefferson, "should be of the President's bosom confidence" (7 Writings,
Ford ed., 498), and, in the language of Attorney-General Cushing (7 Op., Attorney-General, 453),
"are subject to the direction of the President." Without minimizing the importance of the heads of the
various departments, their personality is in reality but the projection of that of the President. Stated
otherwise, and as forcibly characterized by Chief Justice Taft of the Supreme Court of the United
States, "each head of a department is, and must be, the President's alter ego in the matters of that
department where the President is required by law to exercise authority" (Myers v. United States, 47
Sup. Ct. Rep., 21 at 30; 272 U.S., 52 at 133; 71 Law. ed., 160).[18]

Memorandum Circular No. 58,[19] promulgated by the Office of the President on June 30, 1993
reads:

In the interest of the speedy administration of justice, the guidelines enunciated in Memorandum
Circular No. 1266 (4 November 1983) on the review by the Office of the President of
resolutions/orders/decisions issued by the Secretary of Justice concerning preliminary investigations
of criminal cases are reiterated and clarified.

No appeal from or petition for review of decisions/orders/resolutions of the Secretary of Justice on


preliminary investigations of criminal cases shall be entertained by the Office of the President, except
those involving offenses punishable by reclusion perpetua to death x x x.

Henceforth, if an appeal or petition for review does not clearly fall within the jurisdiction of the Office
of the President, as set forth in the immediately preceding paragraph, it shall be dismissed outright
x x x.

It is quite evident from the foregoing that the President himself set the limits of his power to review
decisions/orders/resolutions of the Secretary of Justice in order to expedite the disposition of cases.
Petitioner's argument that the Memorandum Circular unduly expands the power of the Secretary of
Justice to the extent of rendering even the Chief Executive helpless to rectify whatever errors or
abuses the former may commit in the exercise of his discretion[20] is purely speculative to say the
least. Petitioner cannot second- guess the President's power and the President's own judgment to
delegate whatever it is he deems necessary to delegate in order to achieve proper and speedy
administration of justice, especially that such delegation is upon a cabinet secretary his own alter
ego.
Nonetheless, the power of the President to delegate is not without limits. No less than the
Constitution provides for restrictions. Justice Jose P. Laurel, in his ponencia in Villena, makes this
clear:

x x x Withal, at first blush, the argument of ratification may seem plausible under the circumstances,
it should be observed that there are certain prerogative acts which, by their very nature, cannot be
validated by subsequent approval or ratification by the President. There are certain constitutional
powers and prerogatives of the Chief Executive of the Nation which must be exercised by him in
person and no amount of approval or ratification will validate the exercise of any of those powers by
any other person. Such, for instance, is his power to suspend the writ of habeas corpus and proclaim
martial law (par. 3, sec. 11, Art. VII) and the exercise by him of the benign prerogative of mercy (par.
6, sec. 11, idem).[21]

These restrictions hold true to this day as they remain embodied in our fundamental law. There are
certain presidential powers which arise out of exceptional circumstances, and if exercised, would
involve the suspension of fundamental freedoms, or at least call for the supersedence of executive
prerogatives over those exercised by co-equal branches of government.[22] The declaration of
martial law, the suspension of the writ of habeas corpus, and the exercise of the pardoning power,
notwithstanding the judicial determination of guilt of the accused, all fall within this special class that
demands the exclusive exercise by the President of the constitutionally vested power.[23] The list is
by no means exclusive, but there must be a showing that the executive power in question is of similar
gravitas and exceptional import.[24]

In the case at bar, the power of the President to review the Decision of the Secretary of Justice
dealing with the preliminary investigation of cases cannot be considered as falling within the same
exceptional class which cannot be delegated. Besides, the President has not fully abdicated his
power of control as Memorandum Circular No. 58 allows an appeal if the imposable penalty is
reclusion perpetua or higher. Certainly, it would be unreasonable to impose upon the President the
task of reviewing all preliminary investigations decided by the Secretary of Justice. To do so will
unduly hamper the other important duties of the President by having to scrutinize each and every
decision of the Secretary of Justice notwithstanding the latters expertise in said matter.

In Constantino, Jr. v. Cuisia,[25] this Court discussed the predicament of imposing upon the
President duties which ordinarily should be delegated to a cabinet member, to wit:

The evident exigency of having the Secretary of Finance implement the decision of the President to
execute the debt-relief contracts is made manifest by the fact that the process of establishing and
executing a strategy for managing the governments debt is deep within the realm of the expertise of
the Department of Finance, primed as it is to raise the required amount of funding, achieve its risk
and cost objectives, and meet any other sovereign debt management goals.

If, as petitioners would have it, the President were to personally exercise every aspect of the foreign
borrowing power, he/she would have to pause from running the country long enough to focus on a
welter of time-consuming detailed activitiesthe propriety of incurring/guaranteeing loans, studying
and choosing among the many methods that may be taken toward this end, meeting countless times
with creditor representatives to negotiate, obtaining the concurrence of the Monetary Board,
explaining and defending the negotiated deal to the public, and more often than not, flying to the
agreed place of execution to sign the documents. This sort of constitutional interpretation would
negate the very existence of cabinet positions and the respective expertise which the holders thereof
are accorded and would unduly hamper the Presidents effectivity in running the government.[26]

Based on the foregoing considerations, this Court cannot subscribe to petitioners position asking
this Court to allow her to appeal to the Office of the President, notwithstanding that the crimes for
which she charges respondent are not punishable by reclusion perpetua to death.

It must be remembered that under the Administrative Code of 1987 (EO No. 292), the Department
of Justice, under the leadership of the Secretary of Justice, is the governments principal law agency.
As such, the Department serves as the governments prosecution arm and administers the
governments criminal justice system by investigating crimes, prosecuting offenders and overseeing
the correctional system, which are deep within the realm of its expertise.[27] These are known
functions of the Department of Justice, which is under the executive branch and, thus, within the
Chief Executive's power of control.

Petitioners contention that Memorandum Circular No. 58 violates both the Constitution and Section
1, Chapter 1, Book III of EO No. 292, for depriving the President of his power of control over the
executive departments deserves scant consideration. In the first place, Memorandum Circular No.
58 was promulgated by the Office of the President and it is settled that the acts of the secretaries of
such departments, performed and promulgated in the regular course of business are, unless
disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive.[28]
Memorandum Circular No. 58 has not been reprobated by the President; therefore, it goes without
saying that the said Memorandum Circular has the approval of the President.

Anent the second ground raised by petitioner, the same is without merit.

Petitioner argues that the evasion of arrest constitutes a violation of Section 1(e) of PD No. 1829,
the same is quoted hereunder as follows:

(e) Delaying the prosecution of criminal case by obstructing the service of processes or court orders
or disturbing proceedings in the fiscals' offices in Tanodbayan, or in the courts. x x x

Specifically, petitioner contends that respondent's act of going underground obstructed the service
of a court process, particularly the warrant of arrest.[29]

This Court does not agree.

There is no jurisprudence that would support the stance taken by petitioner. Notwithstanding
petitioner's vehement objection in the manner the CA had disposed of the said issue, this Court
agrees with the same. The CA ruled that the position taken by petitioner was contrary to the spirit of
the law on "obstruction of justice, in the wise:

x x x It is a surprise to hear from petitioner who is a member of the bench to argue that unserved
warrants are tantamount to another violation of the law re: "obstruction of justice." Petitioner is like
saying that every accused in a criminal case is committing another offense of obstruction of justice
if and when the warrant of arrest issued for the former offense/ charge is unserved during its life or
returned unserved after its life and that the accused should be charged therewith re: "obstruction of
justice." What if the warrant of arrest for the latter charge ("obstruction of justice") is again unserved
during its life or returned unserved? To follow the line of thinking of petitioner, another or a second
charge of "obstruction of justice" should be filed against the accused. And if the warrant of arrest
issued on this second charge is not served, again, a third charge of "obstruction of justice" is
warranted or should be filed against the accused. Thus, petitioner is effectively saying that the
number of charges for "obstruction of justice" is counting and/or countless, unless and until the
accused is either arrested or voluntarily surrendered. We, therefore, find the position taken by
petitioner as contrary to the intent and spirit of the law on "obstruction of justice." x x x[30]

As correctly observed by the CA, the facts of the case, as portrayed by petitioner, do not warrant the
filing of a separate information for violation of Section 1(e) of PD No. 1829. This Court agrees with
the CA that based on the evidence presented by petitioner, the failure on the part of the arresting
officer/s to arrest the person of the accused makes the latter a fugitive from justice and is not
equivalent to a commission of another offense of obstruction of justice.[31]

Petitioner, however, vehemently argues that the law does not explicitly provide that it is applicable
only to another person and not to the offender himself.[32] Petitioner thus contends that where the
law does not distinguish, we should not distinguish.[33]

Again, this Court does not agree.

Petitioner conveniently forgets that it is a basic rule of statutory construction that penal statutes are
to be liberally construed in favor of the accused.[34] Courts must not bring cases within the provision
of a law which are not clearly embraced by it. No act can be pronounced criminal which is not clearly
made so by statute; so, too, no person who is not clearly within the terms of a statute can be brought
within them.[35] Any reasonable doubt must be resolved in favor of the accused.[36]

Indeed, if the law is not explicit that it is applicable only to another person and not the offender
himself, this Court must resolve the same in favor of the accused. In any case, this Court agrees
with the discussion of the CA, however sarcastic it may be, is nevertheless correct given the
circumstances of the case at bar.
Lastly, petitioner argues that the CA erred in upholding the dismissal of the complaint against
respondent for violation of Section 10 (a), Article VI, of RA No. 7610. Said Section reads:

Any person who shall commit any other act of child abuse, cruelty or exploitation or responsible for
other conditions prejudicial to the child's development, including those covered by Article 59 of PD
No. 603, as amended, but not covered by the Revised Penal Code, as amended, shall suffer the
penalty of prision mayor in its minimum period.

On this note, the Provincial Prosecutor in disapproving the recommendation of the Investigating
Prosecutor to file the information for violation of Section 10(a), Article VI, of RA No. 7610, gave the
following reasons:

APPROVED for: (1) x x x (2) x x x The recommendation to file an information for viol. of Sec. 10 (a)
RA # 7610 vs. M. Vistan is hereby denied. The affidavit of Ma. Mercedes Vistan, the minor involved,
is to the effect that she found happiness and peace of mind away from the complainant and in the
company of her relatives, including her brother, respondent Michael Vistan. How can her joining the
brother be prejudicial to her with such statement?[37]

Said finding was affirmed by the Secretary of Justice.

This Court is guided by First Women's Credit Corporation and Shig Katamaya v. Hon. Hernando B.
Perez et. al,[38] where this Court emphasized the executive nature of preliminary investigations, to
wit:

x x x the determination of probable cause for the filing of an information in court is an executive
function, one that properly pertains at the first instance to the public prosecutor and, ultimately, to
the Secretary of Justice. For this reason, the Court considers it sound judicial policy to refrain from
interfering in the conduct of preliminary investigations and to leave the Department of Justice ample
latitude of discretion in the determination of what constitutes sufficient evidence to establish probable
cause for the prosecution of supposed offenders. Consistent with this policy, courts do not reverse
the Secretary of Justices findings and conclusions on the matter of probable cause except in clear
cases of grave abuse of discretion. Thus, petitioners will prevail only if they can show that the CA
erred in not holding that public respondents resolutions were tainted with grave abuse of
discretion.[39]

Were the acts of the Provincial Prosecutor or the Secretary of Justice tainted with grave abuse of
discretion?

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment which is
equivalent to an excess or lack of jurisdiction. The abuse of discretion must be so patent and gross
as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law,
or to act not at all in contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility.[40]

Based on the foregoing, this Court finds that the provincial prosecutor and the Secretary of Justice
did not act with grave abuse of discretion, as their conclusion of lack of probable cause was based
on the affidavit of the alleged victim herself. The reasons for the cause of action were stated clearly
and sufficiently. Was their reliance on the victim's affidavit constitutive of grave abuse of discretion?
This Court does not think so.

While petitioner would argue that the victim was "brainwashed" by respondent into executing the
affidavit,[41] this Court finds no conclusive proof thereof. Besides, even if their reliance on the victims
affidavit may be wrong, it is elementary that not every erroneous conclusion of fact is an abuse of
discretion.[42] As such, this Court will not interfere with the said findings of the Provincial Prosecutor
and the Secretary of Justice absent a clear showing of grave abuse of discretion. The determination
of probable cause during a preliminary investigation is a function that belongs to the prosecutor and
ultimately on the Secretary of Justice; it is an executive function, the correctness of the exercise of
which is a matter that this Court will not pass upon absent a showing of grave abuse of discretion.

WHEREFORE, premises considered, the February 13, 2004 Decision and September 16, 2004
Resolution of the Court of Appeals in CA-G.R. SP No. 76019 are hereby AFFIRMED.

SO ORDERED.

17. JACKSON PADIERNOS VS PEOPLE

SUPRA

18. G.R. No. L-3565 April 20, 1951

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
NANG KAY alias SY KEE, defendant-appellant.

MONTEMAYOR, J.:

In the Court of First Instance of Rizal, Nang Kay alias Sy Kee was charged with illegal possession
of firearms in that in his possession were found three grease guns and two Thompson Submachine
guns, and empty magazines, without the necessary license. In court he appeared without counsel
and upon being arraigned, he pleaded guilty. He was sentenced to imprisonment for five (5) years
and one (1) day, with the accessories of the law, and to pay costs. The firearms and ammunition in
question were ordered confiscated in favor of the Government. He now appeals to this Court on the
ground that the trial court failed to inform him at the arraignment of his right to be assisted by counsel.
The Solicitor General also questions the correctness of the penalty imposed, expressing the opinion
and making the recommendation that the law on indeterminate sentence should have been applied.
Counsel for the appellant makes citations of authorities to the effect that it is the duty of the court to
inform the defendant in a criminal case of his right to have counsel, and that should the court fail to
do so, its action constitutes a reversible error. In this, we agree with the said counsel. However,
contrary to the claim of said counsel that the record in this case shows that the court failed to inform
the appellant of his right to have counsel, we believe that the record merely fails to show that the
court complied with this duty. In other words, the record of the case is silent on this point. Both the
minutes of the court session during which appellant was arraigned as well as the certificate of
arraignment signed by the Clerk of Court merely show that the case was called for arraignment, the
accused appeared without counsel, and that upon being arraigned, he pleaded guilty to the charge.
The transcript of the stenographic notes taken down by the stenographer further states that the court
instructed the Clerk of Court to read the information which was translated to the accused after which,
the court asked the defendant for his plea. The accused then pleaded guilty.

As we have already stated, the record of the case does not show whether or not the court informed
the appellant of his right to have counsel, but of course this cannot be interpreted in the sense that
the court failed to so inform him of such right. On the contrary, because of the presumption that the
law has been complied with, it is to be presumed in this case that the court has complied with its
duty and that it has informed the appellant that he may have counsel, even a counsel de oficio if he
wanted to. In the case of People vs. Miranda, 78 Phil., 418; 44 Off. Gaz., No. 9, p. 3307, involving a
similar case of illegal possession of firearm, namely, a carbine with ammunition, this Court passing
upon the same point now raised, said:

This precise issue was determine in United States vs. Labial, 27 Phil. 87, 88, in the sense that unless
the contrary appears in the records, it will be presumed, that the defendant was informed by the
court of his right to counsel; "if we should insist on finding every fact fully recorded before a citizen
can be punished for an offense against the laws, we should destroy public justice, and give
unbriddled license to crime. Much must be left to intendment and presumption for it is often less
difficult to do things correctly than to describe them correctly," [People vs. Labial]. The same doctrine
was reiterated in People vs. Abuyen, 52 Phil., 722 and in United States vs. Custan, 28 Phil., 19. We
see no reason to modify it now. . . .

See also the case of People vs. Javier, 64 Phil., 413, wherein it was stated that this Tribunal has
repeatedly held that failure to state in the record that an accused has been informed of his right to
have counsel, does not warrant reversal of the judgment if it does not affirmatively appear that he
has not been informed thereof.

Moreover, it has been held in the case of U. S. vs. Escalante, 36 Phil., 746, that when the appellant
fails to raise the question of his right to have an attorney in the trial court, that question will not be
considered when raised for the first time in the Supreme Court. In the present case, it does not
appear that this point was ever raised in the court below.

As to the application of the law on indeterminate sentence, the Solicitor General merely says that
the trial court failed to apply said law, and he recommends that it be applied, without giving his
reasons for said recommendation. We agree with the Solicitor General that the letter of the law on
indetermine sentence (Act No. 4103) as amended by Act No. 4225, particularly the latter part of
section 1 thereof, supports his contention, the offense in the present case being penalized by special
law. Said legal provision states that:

. . . and if the offense is punished by any other law (not the Revised Penal Code or its amendments),
the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall
not exceed the maximum fixed by fixed by said law and the minimum shall not be less than the
minimum term prescribed by the same.

Section 2692 of the Revised Administrative Code as amended by Commonwealth Act 56 and
Republic Act No. 4 penalizes the criminal act of the appellant with imprisonment of not less than five
(5) years nor more than ten (10)years. So, if we applied the law on indeterminate sentence, the
penalty as recommended by the Solicitor General would be not less than five (5) years and not more
than a period exceeding ten (10) years. That penalty could hardly be regarded as favorable to the
accused, considering his plea of guilty. We should not lose sight of the fact that the law on
indeterminate sentence as a rule is intended to favor the defendant ina criminal case particularly to
shorten his term of imprisonment, depending upon his behavior and his physical, mental, and moral
record as a prisoner, to be determined by the Board of Indeterminate Sentence. Upon favorable
recommendation by that Board, the prisoner may be released on parole upon the expiration of his
minimum sentence. In fact the Governor General in his message published in 31 Off. Gaz., No. 92,
August 3, 1933, issued in connection with the promulgation of the present law on indeterminate
sentence, said that one of the purposes of the law was to prevent unnecessary and excessive
deprivation of personal liberty and economic usefulness.

Under the special law on illegal possession of firearms applicable to this case, already referred to, if
we had no law on indeterminate sentence in this jurisdiction, considering the plea of guilty entered
by the appellant, the trial court could well and lawfully have given him a prison sentence of five (5)
years. If we are now to apply the law on indeterminate sentence in the instant case, the prison term
would to be more than five (5) years for the reason that the minimum could not be less than five (5)
years and the maximum necessarily would have to be more than five (5) years but not more than
ten (10) years. That would certainly be not in accordance with the purpose of the law on
indeterminate sentence; in fact it would run counter to its spirit.

Moreover, there are authorities to the effect that where the statute under which an accused was
convicted fixes the maximum and minimum punishment, or either of them, it has been held that it is
not necessary, under the indeterminate sentence law, for the court to specify in the sentence such
maximum and minimum punishment. . . . (24 C. J. S. p. 109, Sec. 1582). Besides, it has also been
held that the law on indeterminate sentence being penal in character must receive a strict
construction in favor of the one to whom the penalty is exacted. (24 C. J. S. p. 1219, Sec. 1993).

We are, therefore, of the opinion and hold that in cases where the application of the law on
indeterminate sentence would be unfavorable to the accused, resulting in the lengthening of his
prison sentence, said law on indeterminate sentence should not be applied. Under this opinion, it is
obvious that the trial court did not err in sentencing the appellant to imprisonment for five (5) years
and one (1) day.

In view of the foregoing, the decision appealed from is hereby affirmed, with costs. So ordered.

19. JUNO BATISTIS,

-versus -
PEOPLE OF THE

PHILIPPINES,

On January 23, 2006, the Regional Trial Court (RTC), Branch 24, in Manila convicted Juno Batistis
for violations of Section 155 (infringement of trademark) and Section 168 (unfair competition) of the
Intellectual Property Code (Republic Act No. 8293).[1]

On September 13, 2007, the Court of Appeals (CA) affirmed the conviction for infringement of
trademark, but reversed the conviction for unfair competition for failure of the State to prove guilt
beyond reasonable doubt.[2]
Batistis now appeals via petition for review on certiorari to challenge the CAs affirmance of his
conviction for infringement of trademark.

We affirm the conviction, but we modify the penalty by imposing an indeterminate sentence,
conformably with the Indeterminate Sentence Law and pertinent jurisprudence.

Antecedents

The Fundador trademark characterized the brandy products manufactured by Pedro Domecq, S.A.
of Cadiz, Spain.[3] It was duly registered in the Principal Register of the Philippines Patent Office on
July 12, 1968 under Certificate of Registration No. 15987,[4] for a term of 20 years from November
5, 1970. The registration was renewed for another 20 years effective November 5, 1990.[5]

Allied Domecq Philippines, Inc., a Philippine corporation exclusively authorized[6] to distribute


Fundador brandy products imported from Spain wholly in finished form,[7] initiated this case against
Batistis. Upon its request, agents of the National Bureau of Investigation (NBI) conducted a test-buy
in the premises of Batistis, and thereby confirmed that he was actively engaged in the manufacture,
sale and distribution of counterfeit Fundador brandy products.[8] Upon application of the NBI agents
based on the positive results of the test-buy,[9] Judge Antonio M. Eugenio, Jr. of the Manila RTC
issued on December 20, 2001 Search Warrant No. 01-2576,[10] authorizing the search of the
premises of Batistis located at No.1664 Onyx St., San Andres Bukid, Sta. Ana, Manila. The search
yielded 20 empty Carlos I bottles, 10 empty bottles of Black Label whiskey, two empty bottles of
Johnny Walker Swing, an empty bottle of Remy Martin XO, an empty bottle of Chabot, 241 empty
Fundador bottles, 163 boxes of Fundador, a half sack of Fundador plastic caps, two filled bottles of
Fundador brandy, and eight cartons of empty Jose Cuervo bottles.[11]

The Office of the City Prosecutor of Manila formally charged Batistis in the RTC in Manila with two
separate offenses, namely, infringement of trademark and unfair competition, through the following
information, to wit:

That on or about December 20, 2001, in the City of Manila, Philippines, the said accused, being then
in possession of two hundred forty one (241) empty Fundador bottles, one hundred sixty three
Fundador boxes, one half (1/2) sack of Fundador plastic caps, and two (2) Fundador bottles with
intention of deceiving and defrauding the public in general and Allied Domecq Spirits and Wines and
Allied Domecq Philippines, Inc. represented by Atty. Leonardo P. Salvador, a corporation duly
organized and existing under the laws of the Republic of the Philippines and engaged in
manufacturing of Fundador Brandy under license of Pedro Domecq, S.A. Cadiz, Spain, and/or
copyright owner of the said product, did then and there wilfully, unlawfully and feloniously reproduce,
sell and offer for sale, without prior authority and consent of said manufacturing company, the
accused giving their own low quality product the general appearance and other features of the
original Fundador Brandy of the said manufacturing company which would be likely induce the public
to believe that the said fake Fundador Brandy reproduced and/or sold are the real Fundador Brandy
produced or distributed by the Allied Domecq Spirits and Wines Limited, U.K. and Allied Domecq
Philippines, Inc. to the damage and prejudice of the latter and the public.
Contrary to law.[12]

With Batistis pleading not guilty on June 3, 2003,[13] the RTC proceeded to trial. On January 23,
2006, the RTC found Batistis guilty beyond reasonable doubt of infringement of trademark and unfair
competition, viz:

ACCORDINGLY, this Court finds the accused JUNO BATISTIS Guilty Beyond Reasonable Doubt of
the crime of Violation of Section 155 of the Intellectual Property Code and hereby sentences him to
suffer the penalty of imprisonment of TWO (2) YEARS and to pay a fine of FIFTY THOUSAND
(P50,000.00) PESOS.

This Court likewise finds accused JUNO BATISTIS Guilty Beyond Reasonable Doubt of the crime of
Violation of Section 168 (sic) penalty of imprisonment of TWO (2) YEARS and to pay a fine of FIFTY
THOUSAND (Php50,000.00) PESOS.

Accused is further ordered to indemnify the private complainant the sum of TWENTY-FIVE
(Php25,000.00) PESOS as actual damages.

The following items recovered from the premises of the accused and subject of the case are hereby
ordered destroyed, pursuant to existing rules and regulations:

Twenty (20) empty Carlos 1 bottles

Ten (10) Black Label empty bottles

Two (2) empty bottles of Jhonny (sic) Walker Swing

One(1) empty bottle of Remy Martin XO

One (1) empty bottle of Chabot

Two hundred forty-one (241) empty Fundador bottles

One hundred sixty-three (163) Fundador boxes

One half (1/2 sack of Fundador plastic caps, and

Two (2) filled Fundador bottles

Eight (8) boxes of empty Jose Cuervo bottles

WITH COSTS AGAINST ACCUSED


SO ORDERED.[14]

Batistis appealed to the CA, which, on September 13, 2007, affirmed his conviction for infringement
of trademark, but acquitted him of unfair competition,[15] disposing:

WHEREFORE, premises considered, the Appeal of Appellant JUNO BATISTIS is hereby


PARTIALLY GRANTED. The challenged Decision is AFFIRMED in so far as the charge against him
for Violation of Section 155 of the Intellectual Property Code is concerned.

However, for failure of the prosecution to prove to a moral certainty the guilt of the said Appellant,
for violation of Section 168 of the same code a judgment of ACQUITTAL is hereby rendered in his
favor.

SO ORDERED.[16]

After the CA denied his motion for reconsideration, Batistis brought this appeal.

Issue

Batistis contends that:

THE REGIONAL TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS OF
THE SELF-SERVING AFFIDAVITS AND TESTIMONIES OF THE POLICE OFFICERS WHO
CONDUCTED THE RAID ON THE HOUSE OF THE ACCUSED.

He submits that the only direct proofs of his guilt were the self-serving testimonies of the NBI raiding
team; that he was not present during the search; that one of the NBI raiding agents failed to
immediately identify him in court; and that aside from the two bottles of Fundador brandy, the rest of
the confiscated items were not found in his house.

Ruling
The petition for review has no merit.

1.

Appeal confined only to Questions of Law

Pursuant to Section 3,[17] Rule 122, and Section 9,[18] Rule 45, of the Rules of Court, the review
on appeal of a decision in a criminal case, wherein the CA imposes a penalty other than death,
reclusion perpetua, or life imprisonment, is by petition for review on certiorari.

A petition for review on certiorari raises only questions of law. Sec. 1, Rule 45, Rules of Court,
explicitly so provides, viz:

Section 1. Filing of petition with Supreme Court.A party desiring to appeal by certiorari from a
judgment, final order or resolution of the Court of Appeals, the Sandiganbayan, the Court of Tax
Appeals, the Regional Trial Court or other courts, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition may include an application for
a writ of preliminary injunction or other provisional remedies and shall raise only questions of law,
which must be distinctly set forth. The petitioner may seek the same provisional remedies by verified
motion filed in the same action or proceeding at any time during its pendency.

Accordingly, we reject the appeal for the following reasons:

Firstly: The petition for review replicates Batistis appellant's brief filed in the CA,[19] a true indication
that the errors he submits for our review and reversal are those he had attributed to the RTC. He
thereby rests his appeal on his rehashed arguments that the CA already discarded. His appeal is,
therefore, improper, considering that his petition for review on certiorari should raise only the errors
committed by the CA as the appellate court, not the errors of the RTC.

Secondly: Batistis assigned errors stated in the petition for review on certiorari require a re-
appreciation and re-examination of the trial evidence. As such, they raise issues evidentiary and
factual in nature. The appeal is dismissible on that basis, because, one, the petition for review
thereby violates the limitation of the issues to only legal questions, and, two, the Court, not being a
trier of facts, will not disturb the factual findings of the CA, unless they were mistaken, absurd,
speculative, conflicting, tainted with grave abuse of discretion, or contrary to the findings reached by
the court of origin.[20]
Whether a question of law or a question of fact is involved is explained in Belgica v. Belgica:[21]

xxx [t]here exists a question of law when there is doubt on what the law applicable to a certain set of
facts is. Questions of fact, on the other hand, arise when there is an issue regarding the truth or
falsity of the statement of facts. Questions on whether certain pieces of evidence should be accorded
probative value or whether the proofs presented by one party are clear, convincing and adequate to
establish a proposition are issues of fact. Such questions are not subject to review by this Court. As
a general rule, we review cases decided by the CA only if they involve questions of law raised and
distinctly set forth in the petition.[22]

Thirdly: The factual findings of the RTC, its calibration of the testimonies of the witnesses, and its
assessment of their probative weight are given high respect, if not conclusive effect, unless cogent
facts and circumstances of substance, which if considered, would alter the outcome of the case,
were ignored, misconstrued or misinterpreted.[23]

To accord with the established doctrine of finality and bindingness of the trial courts findings of fact,
we do not disturb such findings of fact of the RTC, particularly after their affirmance by the CA, for
Batistis, as appellant, did not sufficiently prove any extraordinary circumstance justifying a departure
from such doctrine.

2.

Findings of fact were even correct

A review of the decision of the CA, assuming that the appeal is permissible, even indicates that both
the RTC and the CA correctly appreciated the evidence against the accused, and correctly applied
the pertinent law to their findings of fact.

Article 155 of the Intellectual Property Code identifies the acts constituting infringement of trademark,
viz:

Section 155. Remedies; Infringement. Any person who shall, without the consent of the owner of the
registered mark:
155.1. Use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered
mark or the same container or a dominant feature thereof in connection with the sale, offering for
sale, distribution, advertising of any goods or services including other preparatory steps necessary
to carry out the sale of any goods or services on or in connection with which such use is likely to
cause confusion, or to cause mistake, or to deceive; or

155.2. Reproduce, counterfeit, copy or colorably imitate a registered mark or a dominant feature
thereof and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints,
packages, wrappers, receptacles or advertisements intended to be used in commerce upon or in
connection with the sale, offering for sale, distribution, or advertising of goods or services on or in
connection with which such use is likely to cause confusion, or to cause mistake, or to deceive, shall
be liable in a civil action for infringement by the registrant for the remedies hereinafter set forth:
Provided, That the infringement takes place at the moment any of the acts stated in Subsection
155.1 or this subsection are committed regardless of whether there is actual sale of goods or services
using the infringing material.

Harvey Tan, Operations Manager of Pedro Domecq, S.A. whose task involved the detection of
counterfeit products in the Philippines, testified that the seized Fundador brandy, when compared
with the genuine product, revealed several characteristics of counterfeiting, namely: (a) the Bureau
of Internal Revenue (BIR) seal label attached to the confiscated products did not reflect the word
tunay when he flashed a black light against the BIR label; (b) the tamper evident ring on the
confiscated item did not contain the word Fundador; and (c) the word Fundador on the label was
printed flat with sharper edges, unlike the raised, actually embossed, and finely printed genuine
Fundador trademark.[24]

There is no question, therefore, that Batistis exerted the effort to make the counterfeit products look
genuine to deceive the unwary public into regarding the products as genuine. The buying public
would be easy to fall for the counterfeit products due to their having been given the appearance of
the genuine products, particularly with the difficulty of detecting whether the products were fake or
real if the buyers had no experience and the tools for detection, like black light. He thereby infringed
the registered Fundador trademark by the colorable imitation of it through applying the dominant
features of the trademark on the fake products, particularly the two bottles filled with Fundador
brandy.[25] His acts constituted infringement of trademark as set forth in Section 155, supra.

3.

Penalty Imposed should be an

Indeterminate Penalty and Fine

Section 170 of the Intellectual Property Code provides the penalty for infringement of trademark, to
wit:
Section 170. Penalties. - Independent of the civil and administrative sanctions imposed by law, a
criminal penalty of imprisonment from two (2) years to five (5) years and a fine ranging from Fifty
thousand pesos (P50,000) to Two hundred thousand pesos(P200,000), shall be imposed on any
person who is found guilty of committing any of the acts mentioned in Section 155, Section 168 and
Subsection 169.1. (Arts. 188 and 189, Revised Penal Code).

The CA affirmed the decision of the RTC imposing the the penalty of imprisonment of TWO (2)
YEARS and to pay a fine of FIFTY THOUSAND (P50,000.00) PESOS.

We rule that the penalty thus fixed was contrary to the Indeterminate Sentence Law,[26] as amended
by Act No. 4225. We modify the penalty.

Section 1 of the Indeterminate Sentence Law, as amended, provides:

Section 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal
Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the
maximum term of which shall be that which, in view of the attending circumstances, could be properly
imposed under the rules of the said Code, and the minimum which shall be within the range of the
penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by
any other law, the court shall sentence the accused to an indeterminate sentence, the maximum
term of which shall not exceed the maximum fixed by said law and the minimum shall not be less
than the minimum term prescribed by the same.

The straight penalty the CA imposed was contrary to the Indeterminate Sentence Law, whose
Section 1 requires that the penalty of imprisonment should be an indeterminate sentence. According
to Spouses Bacar v. Judge de Guzman,Jr.,[27] the imposition of an indeterminate sentence with
maximum and minimum periods in criminal cases not excepted from the coverage of the
Indeterminate Sentence Law pursuant to its Section 2[28] is mandatory, viz:

The need for specifying the minimum and maximum periods of the indeterminate sentence is to
prevent the unnecessary and excessive deprivation of liberty and to enhance the economic
usefulness of the accused, since he may be exempted from serving the entire sentence, depending
upon his behavior and his physical, mental, and moral record. The requirement of imposing an
indeterminate sentence in all criminal offenses whether punishable by the Revised Penal Code or
by special laws, with definite minimum and maximum terms, as the Court deems proper within the
legal range of the penalty specified by the law must, therefore, be deemed mandatory.
Indeed, the imposition of an indeterminate sentence is mandatory. For instance, in Argoncillo v.
Court of Appeals,[29] three persons were prosecuted for and found guilty of illegal fishing (with the
use of explosives) as defined in Section 33, Presidential Decree No. 704, as amended by
Presidential Decree No. 1058, for which the prescribed penalty was imprisonment from 20 years to
life imprisonment. The trial court imposed on each of the accused a straight penalty of 20 years
imprisonment, and the CA affirmed the trial court. On appeal, however, this Court declared the
straight penalty to be erroneous, and modified it by imposing imprisonment ranging from 20 years,
as minimum, to 25 years, as maximum.

We are aware that an exception was enunciated in People v. Nang Kay,[30] a prosecution for illegal
possession of firearms punished by a special law (that is, Section 2692, Revised Administrative
Code, as amended by Commonwealth Act 56 and Republic Act No. 4) with imprisonment of not less
than five years nor more than ten years. There, the Court sustained the straight penalty of five years
and one day imposed by the trial court (Court of First Instance of Rizal) because the application of
the Indeterminate Sentence Law would be unfavorable to the accused by lengthening his prison
sentence. Yet, we cannot apply the Nang Kay exception herein, even if this case was a prosecution
under a special law like that in Nang Kay. Firstly, the trial court in Nang Kay could well and lawfully
have given the accused the lowest prison sentence of five years because of the mitigating
circumstance of his voluntary plea of guilty, but, herein, both the trial court and the CA did not have
a similar circumstance to justify the lenity towards the accused. Secondly, the large number of
Fundador articles confiscated from his house (namely, 241 empty bottles of Fundador, 163 Fundador
boxes, a half sack full of Fundador plastic caps, and two filled bottles of Fundador Brandy) clearly
demonstrated that Batistis had been committing a grave economic offense over a period of time,
thereby deserving for him the indeterminate, rather than the straight and lower, penalty.

ACCORDINGLY, we affirm the decision dated September 13, 2007 rendered in C.A.-G.R. CR No.
30392 entitled People of the Philippines v. Juno Batistis, but modify the penalty to imprisonment
ranging from two years, as minimum, to three years, as maximum, and a fine of P50,000.00.

The accused shall pay the costs of suit.

SO ORDERED.

20. G.R. No. L-28547 February 22, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
ELIAS JARANILLA, RICARDO SUYO, FRANCO BRILLANTES and HEMAN GORRICETA,
accused. ELIAS JARANILLA, RICARDO SUYO, and FRANCO BRILLANTES, defendants-
appellants.

This is an appeal of defendants Elias Jaranilla, Ricardo Suyo and Franco Brillantes from the decision
of the Court of First Instance of Iloilo, which convicted them of robbery with homicide, sentenced
each of them to reclusion perpetua and ordered them to pay solidarily the sum of six thousand pesos
to the heirs of Ramonito Jabatan and the sum of five hundred pesos to Valentin Baylon as the value
of fighting cocks (Criminal Case No. 11082).

The evidence for the prosecution shows that at around eleven o'clock in the evening of January 9,
1966, Gorriceta, who had just come from Fort San Pedro in Iloilo City, was driving a Ford pickup
truck belonging to his sister, Remia G. Valencia. While he was in front of the Elizalde Building on J.
M. Basa Street, he saw Ricardo Suyo, Elias Jaranilla and Franco Brillantes. They hailed Gorriceta
who stopped the truck. Jaranilla requested to bring them to Mandurriao, a district in another part of
the city. Gorriceta demurred. He told Jaranilla that he (Gorriceta) was on his way home.

Jaranilla prevailed upon Gorriceta to take them to Mandurriao because Jaranilla ostensibly had to
get something from his uncle's place. So, Jaranilla, Brillantes and Suyo boarded the pickup truck
which Gorriceta drove to Mandurriao.

Upon reaching Mandurriao, Gorriceta parked the truck at a distance of about fifty to seventy meters
from the provincial hospital. Jaranilla, Suyo and Brillantes alighted from the vehicle. Jaranilla
instructed Gorriceta to wait for them. The trio walked in the direction of the plaza. After an interval of
about ten to twenty minutes, they reappeared. Each of them was carrying two fighting cocks. They
ran to the truck.

Jaranilla directed Gorriceta to start the truck because they were being chased. Gorriceta drove the
truck to Jaro (another district of the city) on the same route that they had taken in going to
Mandurriao.

It is important to note the positions of Gorriceta and his three companions on the front seat of the
track. Gorriceta the driver, was on the extreme left. Next to him on his right was Suyo. Next to Suyo
was Brillantes. On the extreme right was Jaranilla.

While the truck was traversing the detour road near the Mandurriao airport, then under construction,
Gorriceta saw in the middle of the road Patrolmen Ramonito Jabatan and Benjamin Castro running
towards them. Gorriceta slowed down the truck after Patrolman Jabatan had fired a warning shot
and was signalling with his flashlight that the truck should stop. Gorriceta stopped the truck near the
policeman. Jabatan approached the right side of the truck near Jaranilla and ordered all the
occupants of the truck to go down. They did not heed the injunction of the policeman.

Brillantes pulled his revolver but did not fire it. Suyo did nothing. Jaranilla, all of a sudden, shot
Patrolman Jabatan. The shooting frightened Gorriceta. He immediately started the motor of the truck
and drove straight home to La Paz, another district of the city. Jaranilla kept on firing towards
Jabatan.

Jaranilla, Suyo and Brillantes alighted in front of Gorriceta's house. Gorriceta parked the truck inside
the garage. Jaranilla warned Gorriceta not to tell anybody about the incident. Gorriceta went up to
his room. After a while, he heard policemen shouting his name and asking him to come down. Instead
of doing so, he hid in the ceiling. It was only at about eight o'clock in the morning of the following day
that he decided to come down. His uncle had counselled him to surrender to the police. The
policemen took Gorriceta to their headquarters. He recounted the incident to a police investigator.

Victorino Trespeces, whose house was located opposite the house of Valentin Baylon on Taft Street
in Mandurriao, testified that before midnight of January 9, 1966, he conducted a friend in his car to
the housing project in the vicinity of the provincial hospital at Mandurriao. As he neared his residence,
he saw three men emerging from the canal on Taft Street in front of Baylon's house. He noticed a
red Ford pickup truck parked about fifty yards from the place where he saw the three men. Shortly
thereafter, he espied the three men carrying roosters. He immediately repaired to the police station
at Mandurriao. He reported to Patrolmen Jabatan and Castro what he had just witnessed. The two
policemen requested him to take them in his car to the place where he saw the three suspicious-
looking men. Upon arrival thereat, the men and the truck were not there anymore.

Trespeces and the policemen followed the truck speeding towards Jaro. On reaching the detour road
leading to the airport, the policemen left the car and crossed the runway which was a shortcut. Their
objective was to intercept the truck. Trespeces turned his car around in order to return to Mandurriao.
At that moment he heard gunshots. He stopped and again turned his car in the direction where shots
had emanated. A few moments later, Patrolman Castro came into view. He was running. He asked
Trespeces for help because Jabatan, his comrade, was wounded. Patrolman Castro and Trespeces
lifted Jabatan into the car and brought him to the hospital. Trespeces learned later that Jabatan was
dead.

Doctor Raymundo L. Torres, the chief medico-legal officer of the Iloilo City police department,
conducted an autopsy on the remains of Patrolman Jabatan. He found:

(1) Contusion on left eyebrow.

(2) Bullet wound one centimeter in diameter, penetrating left anterior axilla, directed diagonally
downward to the right, perforating the left upper lobe of the lungs through and through, bitting the
left pulmonary artery and was recovered at the right thoracic cavity; both thoracic cavity was full of
blood.

Cause of death: Shock, hemorrhage, secondary to bullet wound.

Valentin Baylon, the owner of the fighting cocks, returned home at about six o'clock in the morning
of January 10, 1966. He discovered that the door of one of his cock pens or chicken coops (Exhs. A
and A-1) was broken. The feeding vessels were scattered on the ground. Upon investigation he
found that six of his fighting cocks were missing. Each coop contained six cocks. The coop was
made of bamboo and wood with nipa roofing. Each coop had a door which was locked by means of
nails. The coops were located at the side of his house, about two meters therefrom.

Baylon reported the loss to the police at Mandurriao. At about ten o'clock, a group of detectives came
to his house together with the police photographer who took pictures of the chicken coops. The six
roosters were valued at one hundred pesos each. Two days later, he was summoned to the police
station at Mandurriao to identify a rooster which was recovered somewhere at the airport. He readily
identified it as one of the six roosters which was stolen from his chicken coop (Exh. B).

Gorriceta, Jaranilla, Suyo and Brillantes were charged with robo con homicidio with the aggravating
circumstances of use of a motor vehicle, nocturnity, band, contempt of or with insult to the public
authorities and recidivism. The fiscal utilized Gorriceta as a state witness. Hence, the case was
dismissed as to him.

On February 2, 1967, after the prosecution had rested its case and before the defense had
commenced the presentation of its evidence, Jaranilla escaped from the provincial jail. The record
does not show that he has been apprehended.

The judgment of conviction was promulgated as to defendants Suyo and Brillantes on October 19,
1967 when it was read to them in court. They signed at the bottom of the last page of the decision.

There was no promulgation of the judgment as to Jaranilla, who, as already stated, escaped from
jail (See Sec. 6, Rule 120, Rules of Court).
However, the notice of appeal filed by defendants' counsel de oficio erroneously included Jaranilla.
Inasmuch as the judgment has not been promulgated as to Jaranilla, he could not have appealed.
His appeal through counsel cannot be entertained. Only the appeals of defendants Suyo and
Brillantes will be considered.

In convicting Suyo, Jaranilla and Brillantes of robo con homicidio, the trial court assumed that the
taking of the six fighting cocks was robbery and that Patrolman Jabatan was killed "by reason or on
the occasion of the robbery" within the purview of article 294 of the Revised Penal Code.

In this appeal the appellants contend that the trial court erred in not finding that Gorriceta was the
one who shot the policeman and that Jaranilla was driving the Ford truck because Gorriceta was
allegedly drunk. Through their counsel de oficio, they further contend that the taking of roosters was
theft and, alternatively, that, if it was robbery, the crime could not be robbery with homicide because
the robbery was already consummated when Jabatan was killed.

After evaluating the testimonies of Gorriceta and Brillantes as to who was driving the truck and who
shot policeman, this Court finds that the trial court did not err in giving credence to Gorriceta's
declaration that he was driving the truck at the time that Jaranilla shot Jabatan.

The improbability of appellants' theory is manifest. The truck belonged to Gorriceta's sister. He was
responsible for its preservation. He had the obligation to return it to his sister in the same condition
when he borrowed it. He was driving it when he saw Brillantes, Jaranilla and Suyo and when he
allegedly invited them for a paseo. There is no indubitable proof that Jaranilla knows how to drive a
truck.

The theory of the defense may be viewed from another angle. If, according to the appellants,
Gorriceta asked Jaranilla to drive the truck because he (Gorriceta) was drunk then that circumstance
would be inconsistent with their theory that Gorriceta shot Jabatan. Being supposedly intoxicated,
Gorriceta would have been dozing when Jabatan signalled the driver to stop the truck and he could
not have thought of killing Jabatan in his inebriated state. He would not have been able to shoot
accurately at Jabatan. But the fact is that the first shot hit Jabatan. So, the one who shot him must
have been a sober person like Jaranilla.

Moreover, as Jaranilla and his two comrades were interested in concealing the fighting cocks, it was
Jaranilla, not Gorriceta, who would have the motive for shooting Jabatan. Consequently, the theory
that Gorriceta shot Jabatan and that Jaranilla was driving the truck appears to be plausible.

Was the taking of the roosters robbery or theft? There is no evidence that in taking the six roosters
from their coop or cages in the yard of Baylon's house violence against or intimidation of persons
was employed. Hence, article 294 of the Revised Penal Code cannot be invoked.

Neither could such taking fall under article 299 of the Revised Penal Code which penalizes robbery
in an inhabited house (casa habitada), public building or edifice devoted to worship. The coop was
not inside Baylon's house. Nor was it a dependency thereof within the meaning of article 301 of the
Revised Penal Code.

Having shown the inapplicability of Articles 294 and 299, the next inquiry is whether the taking of the
six roosters is covered by article 302 of the Revised Penal Code which reads:

ART. 302. Robbery in an uninhabited place or in private building.—Any robbery committed in an


uninhabited place or in a building other than those mentioned in the first paragraph of article 299, if
the value of the property exceeds 250 pesos, shall be punished by prision correccional in its medium
and maximum periods provided that any of the following circumstances is present:

1. If the entrance has been effected through any opening not intended for entrance or egress.

2. If any wall, roof, floor or outside door or window has been broken.
3. If the entrance has been effected through the use of false keys, picklocks or other similar
tools.

4. If any door, wardrobe, chest, or any sealed or closed furniture or receptacle has been broken.

5. If any closed or sealed receptacle, as mentioned in the preceding paragraph, has been
removed, even if the same be broken open elsewhere.

xxx xxx xxx

In this connection, it is relevant to note that there is an inaccuracy in the English translation of article
302. The controlling Spanish original reads:

ART. 302. Robo en lugar no habitado o edificio particular.—El robo cometido en un lugar no
habitado o en un edificio que no sea de los comprendidos en el parrafo primero del articulo 299, ...
. (Tomo 26, Leyes Publicas 479).

The term "lugar no habitado" is erroneously translated. as "uninhabited place", a term which may be
confounded with the expression "uninhabited place" in articles 295 and 300 of the Revised Penal
Code, which is the translation of despoblado and which is different from the term lugar no habitado
in article 302. The term lugar no habitado is the antonym of casa habitada (inhabited house) in article
299.

One essential requisite of robbery with force upon things under Articles 299 and 302 is that the
malefactor should enter the building or dependency, where the object to be taken is found. Articles
299 and 302 clearly contemplate that the malefactor should enter the building (casa habitada o lugar
no habitado o edificio). If the culprit did not enter the building, there would be no robbery with force
upon things. (See Albert, Revised Penal Code, 1932 edition, p. 688).

Thus, where the accused broke the show-window of the Bombay Palace Bazar at Rizal Avenue,
Manila and removed forty watches therefrom, the crime was theft and not robbery because he did
not enter the building. The show-window was outside the store. (People vs. Adorno, CA 40 O. G.
567, per Montemayor, J., who later became a member of this Court). *

In the instant case, the chicken coop where the six roosters were taken cannot be considered a
building within the meaning of article 302. Not being a building, it cannot be said that the accused
entered the same in order to commit the robbery by means of any of the five circumstances
enumerated in article 302.

The term "building" in article 302, formerly 512 of the old Penal Code, was construed as embracing
any structure not mentioned in article 299 (meaning not an "inhabited house or public building or
edifice devoted to worship" or any dependency thereof) used for storage and safekeeping of personal
property. As thus construed, a freight car used for the shipment of sugar was considered a private
building. The unnailing of a strip of cloth nailed over the door, the customary manner of sealing a
freight car, was held to constitute breaking by force within the meaning of article 512, now article
302. (U.S. vs. Magsino, 2 Phil. 710).

The ruling in the Magsino case is in conflict with the rulings of the Supreme Court of Spain that a
railroad employee who, by force, opens a sealed or locked receptacle deposited in a freight car,
does not commit robbery. He is guilty of theft because a railroad car is neither a house nor a building
within the meaning of article 302 which corresponds to article 525 of the 1870 Spanish Penal Code.
Article 302 refers to houses or buildings which, while not actually inhabited, are habitable. Thus, a
pig sty is not a building within the meaning of article 302. The stealing of hogs from a pig sty is theft
and not robbery, although the culprit breaks into it. Article 302 refers to habitable buildings. (Guevara,
Revised Penal Code, 1939 Edition, pages 555-6, citing II Hidalgo Codigo Penal 636-7, 642, which
in turn cites the decisions of the Spanish Supreme Court dated March 2, 1886 and April 25, 1887).
**

As may be seen from the photographs (Exhs. A and A-1) Baylon's coop, which is known in the dialect
as tangkal or kulungan, is about five yards long, one yard wide and one yard high. It has wooden
stilts and bamboo strips as bars. The coop barely reaches the shoulder of a person of average height
like Baylon. It is divided into six compartments or cages. A compartment has an area of less than
one cubic yard. A person cannot be accommodated inside the cage or compartment. It was not
intended that a person should go inside that compartment. The taking was effected by forcibly
opening the cage and putting the hands inside it to get the roosters.

Therefore, the taking of the six roosters from their coop should be characterized as theft and not
robbery. The assumption is that the accused were animated by single criminal impulse. The conduct
of the accused reveals that they conspired to steal the roosters. The taking is punishable as a single
offense of theft. Thus, it was held that the taking of two roosters in the same place and on the same
occasion cannot give rise to two crimes of theft (People vs. De Leon, 49 Phil. 437, citing decision of
Supreme Court of Spain dated July 13, 1894 and 36 C. J. 799; People vs. Tumlos, 67 Phil. 320;
People vs. Villanueva, 49 O.G. 5448, L-10239, August 7, 1953).

Nocturnity and use of a motor vehicle are aggravating. Those circumstances facilitated the
commission of the theft. The accused intentionally sought the cover of night and used a motor vehicle
so as to insure the success of their nefarious enterprise (People vs. Tan, 89 Phil. 647, 660; People
vs. Gardon, 104 Phil. 372).

Also to be appreciated against appellants Suyo and Brillantes is the aggravating circumstance of
recidivism which was alleged in the information. They admitted their previous convictions for theft
(130, 132 tsn; Exhs. I and J; Art. 14[9], Revised Penal Code).

The theft of six roosters valued at six hundred pesos is punishable by prision correccional in its
minimum and medium periods (Art. 309[3], Revised Penal Code). That penalty should be imposed
in its maximum period because only aggravating circumstances are present (Art. 64[3], Revised
Penal Code).

Although recidivists, appellants Suyo and Brillantes are not habitual delinquents. They are entitled
to an indeterminate sentence (Sec. 2, Act No. 4103).

With respect to the killing of Patrolman Jabatan, it has already been noted that the evidence for the
prosecution points to Jaranilla as the malefactor who shot that unfortunate peace officer. The killing
was homicide because it was made on the spur of the moment. The treacherous mode of attack was
not consciously or deliberately adopted by the offender (U.S. vs. Namit, 38 Phil. 926; People vs.
Tumaob, 83 Phil. 738; People vs. Abalos, 84 Phil. 771).

The twenty-four year old Jabatan was an agent of authority on night duty at the time of the shooting.
He was wearing his uniform. The killing should be characterized as a direct assault (atentado) upon
an agent of authority (Art. 148, Revised Penal Code) complexed with homicide. The two offenses
resulted from a single act. (Art. 48, Revised Penal Code; People vs. Guillen, 85 Phil. 307; People
vs. Lojo, Jr., 52 Phil. 390).

The evidence for the prosecution does not prove any conspiracy on the part of appellants Jaranilla,
Suyo and Brillantes to kill Jabatan. They conspired to steal the fighting cocks. The conspiracy is
shown by the manner in which they perpetrated the theft. They went to the scene of the crime
together. They left the yard of Baylon's residence, each carrying two roosters. They all boarded the
getaway truck driven by Gorriceta.

The theft was consummated when the culprits were able to take possession of the roosters. It is not
an indispenable element of theft that the thief carry, more or less far away, the thing taken by him
from its owner (People vs. Mercado, 65 Phil. 665; Duran vs. Tan, 85 Phil. 476; U.S vs. Adiao, 38
Phil. 754).

It is not reasonable to assume that the killing of any peace officer, who would forestall the theft or
frustrate appellants' desire to enjoy the fruits of the crime, was part of their plan. There is no evidence
to link appellants Suyo and Brillantes to the killing of Jabatan, except the circumstance that they
were with Jaranilla in the truck when the latter shot the policeman. Gorriceta testified that Suyo did
not do anything when Jabatan approached the right side of the truck and came in close proximity to
Jaranilla who was on the extreme right. Brillantes pulled his revolver which he did not fire (47, 53-55
tsn). Mere presence at the scene of the crime does not necessarily make a person a co-principal
thereof.

Jaranilla heard Gorriceta's testimony that he (Jaranilla) shot Jabatan. Instead of taking the witness
stand to refute the testimony of Gorriceta, Jaranilla escaped from jail. That circumstance is an
admission of guilt.

The instant case is different from People vs. Mabassa, 65 Phil. 568 where the victim was killed on
the occasion when the accused took his chickens under the house. It is distinguishable from the
People vs. Gardon, 104 Phil. 372 and People vs. Salamudin No. 1, 52 Phil. 670 (both cited by the
Solicitor General) where the robbery was clearly proven and the homicide was perpetrated on the
occasion of the robbery. As already noted, theft, not robbery, was committed in this case.

The situation in this case bears some analogy to that found in the People vs. Basisten, 47 Phil. 493
where the homicide committed by a member of the band was not a part of the common plan to
commit robbery. Hence, only the person who perpetrated the killing was liable for robbery with
homicide. The others were convicted of robbery only.

There is a hiatus in the evidence of the prosecution as to the participation of Suyo and Brillantes in
the killing of Jabatan by Jaranilla. As already stated, no robbery with homicide was committed.
Therefore, it cannot be concluded that those two appellants have any responsibility for Jabatan's
death. Their complicity in the homicide committed by Jaranilla has not been established.

WHEREFORE, the judgment of the trial court convicting appellants Ricardo Suyo and Franco
Brillantes of robbery with homicide is reversed. They are acquitted of homicide on the ground of
reasonable doubt.

As co-principals with Elias Jaranilla in the theft of the six fighting cocks, they are (a) each sentenced
to an indeterminate penalty of six (6) months of arresto mayor as minimum to four (4) years and two
(2) months of prision correccional as maximum and (b) ordered to indemnify solidarily the
complainant, Valentin Baylon, in the sum of five hundred pesos (P500). Each appellant should pay
one-third of the costs.

As to the liability of Elias Jaranilla for theft and homicide, with direct assault upon an agent of
authority, trial court should render a new judgment consistent with this opinion (See Sec. 19, Art. IV,
Constitution).

So ordered

21. G.R. No. 92020 October 19, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
ELISEO MARTINADO y AGUILLON, HERMOGENES MARTINADO y AGUILLON and JOHN
DOE, alias "ROLLY", accused-appellants.
This is an appeal from the decision 1 of Branch 124 of the Regional Trial Court (RTC) of Kalookan
City, in Criminal Case No. C-27858, promulgated on 2 February 1989, the dispositive portion of
which reads:

WHEREFORE, this Court finds both the accused ELISEO MARTINADO y AGUILLON and
HERMOGENES MARTINADO y AGUILLON guilty beyond reasonable doubt of the crime of robbery
with homicide as defined and penalized under paragraph 1 of Article 294 of the Revised Penal Code,
as amended. There being no appreciable aggravating nor (sic) mitigating circumstances, this Court
hereby sentences each of the accused to suffer imprisonment under the penalty of Reclusion
Perpetua. The two accused are also directed to indemnify the heirs of Juan Matias jointly and
severally the (sic) amount of P30,000.00; to return the money and the pieces of jewelry, subject
matter of the robbery, and if unable to do so, to pay the entire value thereof in the total amount of
P5,100.00 to the legal heirs of the victim and to pay the costs.

The accused HERMOGENES MARTINADO shall be credited in the service of his sentence with the
full time that he has undergone preventive imprisonment pursuant to Article 29 of the Revised Penal
Code provided the conditions prescribed thereon have been complied with.

SO ORDERED.

At the outset, this Court, has to resolve the propriety of the interposed appeal insofar as accused
Eliseo Martinado is concerned.

The promulgation of the decision on 22 February 1989 was made in his absence because he had
earlier escaped on 6 August 1988, 2 exactly five (5) days after the defense rested its case, from the
Kalookan City Jail. The escape, however, was reported to the trial court only on 8 August 1988. 3
Consequently, the trial court issued a warrant for his arrest on 10 February 1988 4 which was
returned unserved on 28 February 1989 because "per information gathered from the resident (sic)
thereat revealed that accused cannot (sic) be seen for long (sic) period of time." 5

It was only on 10 April 1989 that Eliseo was re-arrested in Palo, Leyte by a Special Action Team of
the Kalookan Police Station. 6

On March 1989, Atty. Domingo M. Ballon, counsel of record for Hermogenes and Eliseo, filed a
notice of appeal for both accused. It reads:

NOTICE OF APPEAL

Accused, by their undersigned counsel to this Honorable Court hereby gives (sic) notice that they
are appealing the decision of this Honorable Court, dated February 2, 1989, and promulgated on
Feb. 22, 1989, convicting the accused to suffer and undergo an imprisonment of Reclusion Perpetua,
to the Supreme Court, for the reason that said decision is contrary to law and evidence. 7

In view of such appeal, the trial court issued on the same date an order directing the transmittal to
this Court of the records of the case together with the transcripts of stenographic notes and exhibits.
8

In promulgating judgment in absentia with respect to Eliseo, and in giving due course to the appeal
of both accused, the trial court must have had in mind the third paragraph of Section 6, Rule 120 of
the Rules of Court which reads:

xxx xxx xxx

The proper clerk of court shall give notice to the accused personally or through his bondsman or
warden and counsel, requiring him to be present at the promulgation of the decision. In case the
accused fails to appear thereat the promulgation shall consist in the recording of the judgment in the
criminal docket and a copy thereof shall be served upon the accused or counsel. If the judgment is
for conviction, and the accused's failure to appear was without justifiable cause, the court shall further
order the arrest of the accused, who may appeal within fifteen (15) days from notice of the decision
to him or his counsel. (6a).

Indeed, no cause for non-appearance during promulgation is more justified than the escape of the
accused from the city jail where he was confined during the trial of the case. However, in the recent
case of People vs. Mapalao, 9 decided on 14 may 1991, this Court, applying by analogy Section 8,
Rule 124 of the 1985 Rules, of Criminal Procedure, held that an accused who had escaped from
confinement during trial on the merits and who merits at large at the time of promulgation of the
judgment of conviction loses his right to appeal therefrom unless he voluntarily submits to the
jurisdiction of the court or is otherwise arrested within fifteen (15) days from notice of judgment. The
reason therefor is that an accused who escapes from detention, jumps bail or flees to a foreign
country loses his standing in court; unless he surrenders or submits to the jurisdiction of the court,
he is deemed to have waived any right to seek relief therefrom. This Court then took the opportunity
to suggest a modification of the last sentence of the aforequoted third paragraph of Section 6 of Rule
120. Thus:

To this effect a modification is in order of the provision of the last sentence of Section 6, Rule 120 of
the 1985 Rules of Criminal Procedure which provides:

If the judgment is for conviction, and the accused's failure to appear was without justifiable cause,
the court shall further order the arrest of the accused, who may appeal within fifteen (15) days from
notice of the decision to him or his counsel.

It should provide instead that it upon promulgation of the judgment, the accused fails to appear
without justifiable cause, despite due notice to him, his bondsmen or counsel, he is thereby
considered to have waived his right to appeal. However, if within the fifteen (15) day period of appeal
he voluntarily surrenders to the court or is otherwise arrested, then he may avail of the right to appeal
within said period of appeal.

By the same token, an accused who, after the filing of an information, is at large and has not been
apprehended or otherwise has not submitted himself to the jurisdiction of the court, cannot apply for
bail or be granted any other relief by the courts until he submits himself to its jurisdiction or is
arrested. 10

If We were to apply this ruling to the case of Eliseo, his appeal should not be given due course.
Considering, however, that Mapalao announces a new doctrine by making the second paragraph of
Section 8, Rule 124 of the Rules of Court, which reads:

Sec. 8. Dismissal of appeal for abandonment or failure to prosecute. —

xxx xxx xxx

The Court may also, upon motion of the appellee or on its motion, dismiss the appeal if the appellant
escapes from prison or confinement or jumps bail or flees to a foreign country during the pendency
of the appeal.

apply by analogy to the last sentence of the third paragraph of Section 6 of Rule 120, and that
application thereof to Eliseo would be prejudicial to him, this Court, guided by the rule that laws shall
have no retroactive effect unless the contrary is provided 11 and judicial decisions applying or
interpreting the laws or the Constitution shall form part of our legal system 12 and, further taking into
account the principle that once a doctrine of this Court is overruled and a different view is adopted,
the new doctrine should be applied prospectively and not retroactively to parties who had relied on
the old doctrine and acted on the faith thereof, 13 hereby declares that the rule enunciated in
Mapalao should not be applied to Eliseo. Thus, his appeal is hereby given due course.
Having cleared the way for the appeal of both accused, We shall now take up the appeal proper.

Accused Hermogenes Martinado and Eliseo Martinado, together with a certain John Doe alias
"Rolly" who remains to be at large, were originally charged with the crime of murder in an Information
prepared and filed by Assistant City Fiscal Arturo A. Rojas on 17 November 1986. 14 The information
fails to mention anything about robbery. Consequently, a motion for reinvestigation was filed by the
offended party. On 4 March 1987, an Amended Information 15 was filed by 1st Assistant City Fiscal
Rogelio M. de Leon charging the accused with the crime of Robbery with Homicide. This was further
amended on 10 March 1987 by a 2nd Amended Information, 16 the accusatory portion of which
reads:

That on or about the 14th day of November 1986 in Caloocan City, Metro Manila and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually
helping with one another, with intent of (sic) gain and with intent to kill, by means of violence and
intimidation employed upon the person of JUAN MATIAS y REYES that is by attacking and stabbing
the latter with a sharp pointed instrument, did then and there willfully, unlawfully and feloniously take,
rob and carry away the following articles, to wit:

1. Seiko men's watch (5) worth — P 800.00

2. Men's ring worth — P1,800.00

3. Wallet containing cash in the amount of — P2,500.00

Total — P5,100.00

all belonging to the said Juan Matias y Reyes, to the damage and prejudice of the latter in the
aforementioned total amount of P5,100.00; and as a result thereof, Juan Matias sustained serious
physical injuries, which injuries caused his death (DOA) at the Quezon City General Hospital.

Contrary to Law.

Eliseo and Hermogenes Martinado were arraigned with the assistance of counsel on 22 September
1987; 17 both entered pleas of "Not Guilty". The other accused, John Doe @ Rolly, has not been
formally identified and is still at large. Immediately after arraignment, a motion for bail was heard by
the trial court; the same was eventually denied. 18

Trial subsequently ensued with the prosecution presenting Margarita Padrinao, Elizabeth C. Carillo,
Dr. Mariano Cueva, Jr. (Medico-Legal Officer), Nicanor Matias, Angel Nieto, Gerardo Arellano, P/Sgt.
Manuel Buenaobra and David Nerza; for the defense, both accused were presented.

On 22 February 1989, the trial court promulgated its decision based on the prosecution's version of
the incident summarized as follows:

The following is the version as shown by the evidence adduced by the Prosecution:

At about 6:15 o'clock in the afternoon of November 14, 1986, Margarita Padrinao, a maid, was
watching television at the house of her master, Juan Matias. She then entered the sari-sari store of
her master which is three arms' length away from the place where she was watching television in
order to feed the pigs. She saw Juan Matias tending the sari-sari store. She also saw two customers
drinking softdrinks outside the window grills of the store. (TSN-Nov. 10, 1987, M. Padrinao, pp. 6-7).
She identified them as Eliseo and Hermogenes Martinado.

At about this time, Elizabeth Carillo, a neighbor and a government employee (sic), passed by the
same sari-sari store on her way to make a phone call at a house located at nearby Villa Maria
Subdivision. She saw Juan Matias attending to three customers drinking softdrinks at the sari-sari
store. She identified them as Eliseo Martinado, Hermogenes Martinado and "Rolly". (TSN-Nov. 19,
1987, E. Carillo, pp. 6-8).

A short while later, Margarita who had just feed the pigs heard a loud snore coming from the store.
She hurriedly went back to the store she saw Eliseo and Hermogenes helping one another in
stabbing Juan Matias. (TSN, Nov. 10, 1987, M. Padriano, pp. 8; 32). Each of these accused was
armed with pointed, thin instruments which each used in the stabbing. The stabbing took place inside
the store near the place where rice was being kept. Margarita then shouted in a loud voice, "Tulungan
ninyo po kami." The two accused then fled thru the gate at the fence of the house. After she shouted,
some people approached the store but Hermogenes and Eliseo Martinado had already fled. (TSN-
Nov. 19, 1987 M. Padrinao, pp. 9-10). She then approached Juan Matias who lay on the flooring of
the store. Mrs. Dominga Matias, the wife of Juan, likewise approached Juan Matias whom they found
to be bloodied with several stab wounds at (sic) the neck, breast and abdomen. (TSN-Nov. 19, 1987,
M. Padrinao, pp. 11).

In the meantime, Elizabeth Carillo had to pass the said store on her way back to her residence,
having failed to contact a friend thru the phone. She heard somebody shouting "saklolo" and she
saw three persons running from the sari-sari store of Juan Matias. These were the same three
persons she previously saw drinking softdrinks. "Rolly" was running ahead of the other two, Eliseo
and Hermogenes Martinado. The she saw Rolly stop and retrace his steps to pick up a watch near
the gate of the fence surrounding the house of Juan Matias before resuming his flight. The two
brothers continued to run away. Eliseo was seen holding something in his bloodied hand and
Hermogenes was also seen holding something in his hand which was bloodied. Elizabeth then
entered the sari-sari store and she saw Juan Matias lying down, face upward, inside the sari-sari
store and had (sic) stab wounds on (sic) his bloodied neck. He was still snorting, so Elizabeth called
for help to bring Juan to the hospital. (TSN-Nov. 10, 1987, E. Carillo, pp. 8-11). Juan was brought to
the Quezon City General Hospital where he was pronounced dead on arrival.

At about the same time, Angel Nieto, the Tanod executive officer of the Barangay, was at the house
of his brother also at Deparo street when he heard people shouting "Harangin, harangin." He went
out of the house into the street and he was able to see three men coming from the direction of the
house of Juan Matias and being chased by the residents. He was able to observe two of the said
three men. These two men had bloodied hands and bloodied clothes. He then asked the residents
why they were chasing the three men and they replied that these men had just stabbed Juan Matias.
(TSN-Dec. 22, 1987, A. Nieto, pp. 4-5)

Gerardo Arellano, a Barangay tanod of the place where the incident occurred, also heard the
aforesaid shouting from his house which is located also at Deparo street. He came to know Elizabeth
Carillo and Margarita Padrinao that Juan Matias was stabbed to death. Together with other tanods
and residents of the place, they began looking for Eliseo Martinado, Hermogenes Martinado and
Rolly as these were the suspects mentioned by Elizabeth Carillo and Margarita Padrinao. (TSN-Feb.
9, 1988, G. Arellano, pp. 5-6).

Gerardo Arellano and his companions proceeded to the house of "Rolly" at the Sterling compound
and after they were granted permission by the wife of "Rolly" they enter. They found Hermogenes
Martinado under a lavatory trembling. Then they went to the Visayan Motors and after obtaining
permission from the owner thereof, they went inside the premises and found Eliseo Martinado who
was packing his clothes ready to leave. (TSN-Feb. 9, 1988, Arellano, pp. 9-13). Eliseo and
Hermogenes Martinado were invited to go to the house of Juan Matias and both were identified by
Elizabeth Carillo and Margarita Padrinao as two of the persons (sic) who barged into the house of
Juan Matias. (TSN-Feb. 9, 1988, Arellano, p. 14). The two suspects were then brought to the Urduja
Police Sub-Station and were then turned over to Sgt. Manuel Buenaobra of the Caloocan City Police
Station. They were later brought to the Caloocan City Police Headquarters by Sgt. Buenaobra. (TSN-
Feb. 15, 1988, M. Buenaobra, p.8).

During the investigation conducted at the house of Juan Matias by the police on November 14, 1986,
Margarita Padrinao discovered that the Seiko V watch worn everyday by Juan Matias was no longer
in his wrist. She also found that the wallet which Juan Matias kept at the back pocket of his pants
was missing. (TSN-Nov. 10, 1987, M. Padrinao, pp. 16-17).

This robbery was reported by Dominga Matias, the widow of the victim, to the Caloocan City Police
Headquarters on November 16, 1986. (TSN-Feb. 15, 1988, M. Buenaobra, p. 16). (See Police
Blotter, page 188 of the Caloocan City Police Station dated November 16, 1986, EXHIBIT "J"). Mrs.
Dominga Matias listed the articles found missing from their store at Deparo street, Caloocan City,
after the death of Juan Matias, as follows:

Seiko wristwatch –– P 800.00


Gold ring –– P1,800.00
Cash contained in missing wallet –– P2,500.00

Nicolas Matias, a son of Juan Matias, corroborated the loss of the above articles and estimated their
value in his testimony of December 21, 1987. He discovered the loss on the night of November 14,
1986, after reaching the Quezon City General Hospital where his mother told him that these articles
could no longer be found in the body of the victim. When he returned to his father's residence at
Deparo street, Caloocan City, also on the evening of November 14, 1986, he verified after a search
of the sari-sari store and the house that those articles were indeed missing. (TSN. Dec. 21, 1987, N.
Matias, pp. 4-6). 19

xxx xxx xxx

It is undisputed that Juan Matias, 70 years old, died on November 14, 1986. The cause of death was
hemorrhage secondary to stab wounds, neck and chest. (EXHIBIT "E"). Dr. Mariano Cueva, NBI
Medico-Legal Officer, stated that he found contusions on the front portion of the neck of the victim;
4 incised wounds, one on the left arm and three on the left forearm; four stab wounds, one over left
front of the neck and three at the left front chest. (TSN. Nov. 20, 1987, Dr. Cueva, pp. 7-8).
(EXHIBITS "F" and "G"). The most mortal of the wounds was that found over the left front chest.
(TSN. Nov. 20, 1987, pp. 8-9). 20

xxx xxx xxx

Dr. Cueva narrated that the incised wounds found on the body of the victim could have been brought
about by contact with a sharp cutting edge like the edge of a knife or sharp metal object. He also
said that the stab wounds could have been produced by a pointed, single-edged or single-bladed
instrument like a kitchen knife or dagger. He added that the number of wounds inflicted on the victim
does not preclude the fact that there was more than one assailant using similar instruments. (TSN.
Nov. 20, 1987, pp. 9-10; 20). 21

The trial court concluded that the prosecution established convincingly that Juan Matias was robbed
at about 6:30 o'clock in the evening of 14 November 1986 by the accused Hermogenes and Eliseo
Martinado who conspired with each other and with Rolly. Under the circumstances above narrated,
the special complex crime of robbery with homicide penalized under paragraph 1 of Article 294 of
the Revised Penal Code was committed. The motive of the accused was to rob Juan Matias.

As earlier adverted to, the accused through counsel filed a Notice of Appeal on 2 March 1989.
Despite the trial court's order to forward the records of the case to this Court, the clerk of court of the
court a quo erroneously transmitted the same to the Court of Appeals on 19 February 1990. 22 The
latter subsequently forwarded the records to this Court on 22 February 1990. 23

In a Resolution dated 12 March 1990, We accepted the appeal interposed by the accused. 24

The accused filed their Appellants' Brief on 20 December 1990 25 while the Office of the Solicitor
General filed the Brief for the Plaintiff-Appellee on 30 January 1991. 26

The appeal is anchored on the following assignment of errors:


I

THE TRIAL COURT ERRED IN HOLDING THAT ACCUSED HERMOGENES MARTINADO AND
ELISEO MARTINADO ARE GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF
ROBBERY WITH HOMICIDE.

II

THE TRIAL COURT ERRED IN HOLDING THAT ACCUSED-APPELLANTS HERMOGENES


MARTINADO AND ELISEO MARTINADO CONSPIRED WITH A CERTAIN "ROLLY" TO COMMIT
THE CRIME OF ROBBERY WITH HOMICIDE. 27

In discussing the first error, appellants focus on the arguments that proof of robbery is wanting that
their guilt for the homicide has not been proven beyond reasonable doubt.

As to the first, the appellants underscore the fact that it was only two (2) days after the alleged killing
that the loss of the victim's personal belongings was reported to the police authorities. They then
suggest that "[t]he wristwatch and the money contained in the wallet could have been stolen when
the cadaver was already in the Hospital or probably in the Morgue;" 28 that Elizabeth Carillo's
declaration on the witness stand that she saw a certain "Rolly" return and pick up a watch as he,
together with the accused, were fleeing from the victim's house, is not sufficient to support the
conclusion that a robbery was committed as the watch could have been Rolly's; and that the loss of
money was not proven and the witness who claims to have seen the alleged killing, Margarita
Padrinao, did not testify on the actual taking of property.

We have closely perused through the entire records of the case and are convinced that the crime of
robbery was not proven to have been committed. No conclusive evidence proving the physical act
of asportation thereof by the accused themselves was presented by the prosecution. 29 This Court
takes note of the fact that the original information filed three (3) days after the incident in question
was for Murder and no hint whatsoever of robbery was made therein. The evidence further discloses
that it was only at around 10:30 o'clock in the evening of 16 November 1986 that the widow of Juan
Matias reported to the Investigation Division of the Kalookan City Police Station that "they found out
that the Seiko wristwatch worth P800.00; GOLD ring worth P1,800.00 and the amount of P2,500.00
contained in the wallet of his (sic) slain husband, JUAN MATIAS were missing presumably (sic)
taken by suspects (sic)." 30

It is settled that in order to sustain a conviction for the crime of robbery with homicide, it is imperative
that the robbery itself be proven as conclusively as any other essential element of a crime. In the
absence of such proof, the killing of the victim would only be simple homicide or murder, depending
on the absence or presence of qualifying circumstances. 31

The trial court based its finding of the existence of robbery on Margarita Padrinao's and Elizabeth
Carillo's respective testimonies. There is also the testimony of the victim's son, Nicanor Matias, a
substantial part of which is hearsay as he constantly alluded to the information his mother had given
him. While Padrinao gave the following statements during her direct examination:

FISCAL SILVERIO:

xxx xxx xxx

Q And what did the police find out during the investigation, if any?

A Things were missing, sir.

Q Did you come to know what were those missing things?


A Watches (sic), wallet.

Q How did you come to know that?

A Because he was not wearing his wristwatch and his wallet was missing.

Q Whose wallet was missing?

A Juan Matias, sir.

Q Do you know what kind of watch is owned or being worn by Juan Matias?

A Seiko V, sir.

Q How did you come to know that?

A I used to see that watch because I have been staying there for a long time.

Q You said that wallets (sic) was missing, do you know if there are (sic) money contained in
that wallet?

xxx xxx xxx

COURT:

How did you know that a wallet was missing?

A Because the wallet was no longer at the back pocket of his pants.32

Carillo declared that:

FISCAL SILVERIO:

Q When you said that you saw Rolly, Eliseo and Hermogenes Martinado running out from the
sari-sari store, what happened next, if nay?

A I saw Rolly returned (sic) and picked (sic) up something, sir.

Q Did you see what Rolly picked up at that time?

A Yes, sir.

Q What was that?

A A watch, sir.

Q Could you describe the watch picked up by Rolly at that time?

A I cannot describe the make, sir, the trademark but it is a watch. 33

It is at once apparent that nobody was able to observe that immediately before the incident, Juan
Matias was wearing a wristwatch and a gold ring and had a wallet in his pocket which contained
money; moreover, nobody witnessed the actual taking by the accused of Juan Matias' personal
belongings. While Margarita Padrinao saw Matias being repeatedly stabbed, she failed to notice the
latter being actually divested of his personal effects. Further scrutiny of Padrinao's testimony reveals
that at the time she declared that "things were missing," the victim was no longer in front of her for
she had likewise testified that latter was rushed to the hospital soon after the stabbing. The
investigation during which she uttered such statements was conducted by police authorities who
arrived at the crime scene long after the victim had been removed. It would thus be highly doubtful
that Padrinao could credibly assert right then and there that the said items were missing as,
presumably, she was not able to get a clear glimpse of the victim as he was being brought to the
hospital. In fact, if there was any person who could have testified about the missing items, it would
have been Elizabeth Carillo. Together with a neighbor, the victim's wife and brother, she brought
Juan Matias to the hospital where the latter was pronounced dead on arrival. 34

With respect to Carillo's testimony, the fact that Rolly returned and picked up a watch is no proof at
all that the watch belonged to the victim for unfortunately, the prosecution failed to elicit from her any
information about the precise place where the watch was picked up in relation to the place where
Juan Matias was stabbed, or the person possessing the same before it was picked up. In short, she
did not testify that the said watch belonged to and was taken from the victim. Absent such proof, it
is highly possible that the watch could have been, as suggested by the accused Rolly's.

The testimony of Nicanor Matias, on the other hand, merely recounts his own discovery that certain
items were missing when he arrived at his parents' house after the incident; he also described these
missing items and estimated their respective values. As earlier observed, much of the information
he volunteered was based on what his mother had told him, thus making the same objectionable on
the ground of hearsay.

As basis for the assertion that the crime of homicide has not been proven beyond reasonable doubt,
both accused emphasize that "the contradiction between the statement of Ms. Margarita Padrinao
in her Affidavit to the effect that "Rolly" was the last person to leave the sari-sari store and was in
fact seen by her "INANG" holding a knife, and that of her testimony in Court to the effect that she did
not see "Rolly" anymore for she immediately went outside the store shouting for help, had created a
semblance of falsehood." 35

The suggested flaw, more apparent than real, betrays strained and tenuous reasoning. Padrinao's
aforesaid statement does not at all clash with her testimony during cross-examination. All that she
declared during the latter was that:

ATTY. BALLON:

Q I am going to quote your answer: "Oho, ito hong dalawang ito (affiant pointing to the persons
inside the Investigation Office, who gave their names as Eliseo Martinado y Aguillon alias ELISEO,
20 years old, single, helper, native of Dagami, Leyte, resident of Visayan Auto Repair Shop, Deparo,
Caloocan City, and HERMOGENES MARTINADO y Aguillon, 23 years old, single, laborer, native of
Dagami, Leyte, resident of Sterling Subd., Caloocan City) at isa pa na magbobote ang pangalan ay
Rolly", did you give that answer?

A Yes, sir, because they were three but I did not see the third man because I only reached (sic)
inside the store the two (referring to the two accused).

Q Now, could you say now, Miss Padrinao, that there were three inside the store?

xxx xxx xxx

Q Was this Rolly inside the store when you saw him?

A I did not see him inside the store but the ones I reached (sic) inside the store were Eliseo
and Hermogenes Martinado, because right after I saw it (sic) I immediately went out and shouted.

Q And so it is clear that you did not see the actual stabbing of Mang Juan, during the stabbing
of Mang Juan you did not see this Rolly?

A Yes, sir.
Q And this Rolly was not inside the store before Mang Juan was stabbed?

A Yes, sir.

xxx xxx xxx

COURT:

Why did you mention in your affidavit that the three who killed Juan Matias were Eliseo, Hermogenes
and this Rolly who was magbobote (sic)?

A I did not see that Rolly anymore because as I have said when I saw the two (referring to
Eliseo and Hermogenes) helping one another in stabbing Mang Juan, I ran away and shouted for
help.

xxx xxx xxx

ATTY. BALLON:

Q While (sic) ago, during your direct testimony and even on the cross examination by this
representation you stated categorically that you only saw two people drinking softdrinks in the store
of Mang Juan on November 14, 1986, at about 6:00 o'clock in the afternoon and in your statement
Exhibit "A" you stated that also a certain Rolly magbobote who (sic) was with the two drinking
softdrinks, which of them is now correct? There seems to be a conflict.

A I only saw the two of them drinking softdrinks, that is what I saw. 36

Padrinao's failure to notice Rolly inside the store could be explained by the fact that she immediately
left upon seeing Juan Matias being stabbed by the two (2) accused. 37 It is very likely that this third
person, Rolly, could have just been hidden or covered by the other two. Thus, it was only when the
stabbing was consummated that she saw all three because they naturally had to leave the scene of
the crime. It is to be observed that Rolly's presence was confirmed by two (2) other witnesses,
namely Elizabeth Carillo 38 and Angel Nieto. 39

Besides, such a minor contradiction does not effect the credibility of a witness. Inconsistencies in
the testimonies of witnesses which refer to minor and insignificant details cannot destroy their
credibility. In fact, such minor inconsistencies guarantee sincere and candid evidence of what
actually transpired. 40 Discrepancies in minor details do not impair the credibility of a witness. In the
course of a prolonged direct examination, more so during cross-examination, the witness is usually
subjected to unfriendly questioning. As a result thereof, it is usually the case that the witness,
uncomfortable and fidgety in a courtroom scene, may often fall into lapses. It is not infrequent for a
witness to commit minor mistakes in his narration of the facts. 41 Rather than effect the credibility of
the witnesses, they are badges of truthfulness and candor. 42

Margarita Padrinao's narration of the incident is coherent in its essential parts and intrinsically
believable; hence, it must be accorded due deference. 43

In any event, even if We are to give weight to the implication suggested by the said discrepancy,
only Rolly's liability would be put in doubt as it is only as to his participation that there would exist
any reservation or question. As to the accused-appellants, Padrinao was firm in her identification of
them.

Coming to the second assigned error, this Court is hard put at giving the same any credence. For
one, counsel for the accused harps once again on the alleged inconsistencies that supposedly
plague the testimonies of the witnesses; this issue has already been resolved and needs no further
elaboration.
Furthermore, the accused capitalize on the Medico-Legal Officer's statement that "the wounds would
have been inflicted by one person because of the nature of the wounds." 44 The accused would
attempt to mislead this Court by such conclusion because they deliberately omitted the phrase
immediately preceding the quoted declaration — "It is possible . . ." 45 Thus, all that the said witness
did was to suggest that there could have been one (1) assailant. It was only the accused who made
the categorical declaration to that effect.

Finally, the accused suggest that the evidence necessary to prove conspiracy was not established
because "at the time the Martinado Brothers were accounted for, Hermogenes Martinado was at the
house of Aling Espie, while Eliseo was at Visayan Auto Repair Shop at Reparo (sic) Street, Kalookan
City." 46

We have time and again ruled that alibi is at best a weak defense and easy of fabrication. 47 It
cannot prevail over a positive identification made by a prosecution witness. 48 For such a defense
to prosper, it is not enough to prove that the accused was somewhere else when the crime was
committed but that he must also demonstrate that it was physically impossible for him to have been
at the scene of the crime. 49

As found by the trial court, both accused were apprehended in the vicinity of the crime scene shortly
after the felony was committed. While Hermogenes was found trembling under the lavatory in Rolly's
house, Eliseo was accosted in the premises of the Visayan Auto Repair Shop in the act of packing
his clothes. Such deportment on the part of the two accused displays guilty consciences. On the part
of Eliseo Martinado, such a conclusion is even bolstered by the fact that the escape from the
Kalookan City Jail on 6 August 1988.50 Flight of the accused is an indication of his guilt or of a guilty
mind. 51

As to conspiracy, the trial court correctly declared that:

The conspiracy was shown by the fact that the two accused were seen buying and drinking softdrinks
together with "Rolly" at the store of the victim and by the fact that they fled together. (People vs.
Ramos, 122 SCRA 139). The Prosecution has also established that the same two accused and
"Rolly" helped each other in stabbing the accused (sic), each using a pointed and bladed instrument
in stabbing the same victim to death. 52

This Court hereby adopts the aforequoted exposition. These facts prove beyond reasonable doubt
that the accused had a common purpose and were united in its execution. There is conspiracy when
two (2) or more persons come to an agreement concerning the commission of a felony and decide
to commit it. 53 Conspiracy to exists does not require an agreement for an appreciable period prior
to the occurrence; it exists if, at the time of the commission of the offense, the accused had the same
purpose and were united in its execution. 54 Direct proof of previous agreement to commit a crime
is not necessary. It may be deduced from the mode and manner in which the offense was
perpetrated, 55 or inferred from acts of the accused themselves when such point to a joint purpose
and design, concerted action and community of interest. 56 Conspiracy having been adequately
established by the testimony of the prosecution witnesses, all the conspirators — the accused herein
— are liable as co-principals regardless of the extent and character of their respective individual
participation for in contemplation of law, the act of one is the act of all. 57

As We have earlier declared, however, the finding that robbery was committed on the occasion of
the killing cannot be sustained. Hence, the accused are liable only for homicide. This Court,
nevertheless, appreciates against both accused the generic aggravating circumstance of abuse of
superior strength 58 which although not alleged in the second amended information, was duly proven
by the prosecution and may therefore be properly taken into consideration. 59 The victim, Juan
Matias, a septuagenarian, was unarmed at the time he was assaulted; Eliseo Martinado was about
21 years old 60 while Hermogenes Martinado was only 28 years old. 61 They both ganged up on
the old man who never had the slightest inkling that the accused, who pretended to be his customers,
would attack him simultaneously with bladed instruments. It is obvious that they took advantage of
their individual and collective strength. The penalty then for the crime of homicide under Article 249
of the Revised Penal Code must be imposed in its maximum period pursuant to the third paragraph
of Article 64 of said Code.

Conformably with the policy of this Court enunciated in several cases, the indemnity for the death of
Juan Matias should be increased to P50,000.00.

WHEREFORE, the Decision of Branch 124 of the Regional Trial Court of Kalookan City in Criminal
Case No. C-27858 finding both accused Eliseo Martinado y Aguillon and Hermogenes Martinado y
Aguillon guilty beyond reasonable doubt of the crime of robbery with homicide defined and penalized
under paragraph 1 of Article 294 of the Revised Penal Code is hereby modified. As modified, the
two accused are found guilty of the crime of Homicide under Article 249 of the Revised Penal Code.
In view of the aggravating circumstance of abuse of superior strength, and the absence of any
mitigating circumstance to offset it, and applying the provisions of the Indeterminate Sentence Law,
Hermogenes Martinado y Aguillon is hereby sentenced to suffer an indeterminate penalty ranging
from Ten (10) years and One (1) day of prision mayor maximum as minimum to Seventeen (17)
years, Four (4) months and One (1) day of reclusion temporal maximum as maximum.

Accused Eliseo Martinado, however, shall not be entitled to the benefits of the Indeterminate
Sentence Law as he had escaped from confinement. 62 Accordingly, he is hereby sentenced to
suffer the penalty of imprisonment of Seventeen (17) years, Four (4) months and One (1) day of
reclusion temporal maximum.

The indemnity for the death of the deceased Juan Matias is hereby increased from P30,000.00 to
P50,000.00.

The Decision is AFFIRMED in all other respects.

SO ORDERED.

22. THE PEOPLE OF THE PHILIPPINES, G.R. No. 169872

- versus -
CELESTINO GARDON,

Celestino Gardon (Gardon) was charged with two (2) counts of Rape in separate Informations which
read:

Criminal Case No. 1258

That on or about March, 1995, more or less 6:00 P.M. at [B]arangay xxx, [M]unicipality of xxx,
[P]rovince of Sorsogon, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused[,] with abuse of confidence and by means of force and intimidation did then and
there, willfully, unlawfully and feloniously, have carnal knowledge of one AAA[1] who was alone on
the aforementioned date and time, without the latters consent and against her will, to her damage
and prejudice.[2]
Criminal Case No. 1259

That on or about August 29, 1997, more or less 6:00 oclock in the afternoon at [B]arangay xxx,
[M]unicipality of xxx, [P]rovince of Sorsogon, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, with abuse of confidence and by means of force and intimidation,
did then and there, willfully, unlawfully and feloniously, have carnal knowledge of one AAA[3] who
was alone on the aforementioned date and time, without the latters consent and against her will, to
her damage and prejudice.[4]

Gardon pleaded not guilty upon arraignment. After trial, the Regional Trial Court of Irosin, Sorsogon,
Branch 55, in a Decision[5] dated December 4, 2002, convicted Gardon as charged. The dispositive
portion of the decision states:

WHEREFORE, premises considered, the [C]ourt finds accused Celestino Gardon guilty beyond
reasonable doubt of the 2 counts of RAPE defined and penalized in Art. 335 of the RPC, as amended
by RA 7659 and RA 8353 and sentenced him to RECLUSION PERPETUA for each count of rape.
The period of the detention is credited to his favor in accordance with Art. 29 RPC; to indemnify the
victim of the sum of P50,000[.00] for each count or a total of P100,000.00 as civil indemnity; to pay
the sum of P50,000.00 for each count or a total of P100,000.00 as moral damages plus P25,000.00
for each count or a total of P50,000.00 as exemplary damages.

SO ORDERED.[6]

Conformably with the Decision of this Court in People v. Mateo,[7] the case was transferred to the
Court of Appeals for intermediate review.[8] The appellate court affirmed Gardons conviction in a
Decision[9] dated July 28, 2005. The case is again before us for our final disposition.

The records disclose the following facts:

AAA testified that in March 1995, she and her younger brother AA[10] lived in the house of their
maternal grandparents, BB[11] and accused Celestino Gardon, in xxx, Sorsogon.[12] At about 6:00
oclock one night, while her grandmother was at the town proper purchasing some goods and AA
was sleeping in the other room, her grandfather, Gardon, accosted her with a knife and ordered her
to lie down. Gardon then undressed her and took off his pair of shorts. He threatened to kill her if
she told anyone what happened. He then held her breast and inserted his penis into her vagina. She
felt pain in her vaginal area during the intercourse. She struggled to no avail because Gardon pointed
a knife to her chest. When she stood up, she noticed blood oozing from her genitals to the floor. She
did not tell her grandmother what happened for fear that Gardon might make good his threat of
harming her and her brother.[13]

The incident was repeated three (3) more times but AAA could only remember that the fourth abuse
happened at around 6:00 in the evening of August 29, 1997. AAAs grandmother was at the town
proper and she was left home with Gardon. That night, AAA was washing the dishes when Gardon
held her hand and pulled her towards a room. He pointed a knife to her chest, told her to lie down
and undress herself, and took off his pair of shorts. He then inserted his penis into her vagina. Again,
she felt pain. She did not tell her grandmother about the incident but confided in her sister, CC.[14]

Dr. Nerissa B. Tagum (Dr. Tagum), the resident physician of Irosin District Hospital who examined
AAA, explained that she found old lacerations on the latters hymen which could have been caused
by the insertion of an instrument. She also mentioned that AAAs vagina can admit two (2) fingers
which is not normal for a 14-year old girl.[15]

AAAs sister, CC, was also presented in court. She recounted that in September 1997, AAA left their
grandparents house in xxx and came to live with her in xxx. When she told AAA to go back to xxx,
AAA refused and told her that their grandfather, Gardon, raped her four (4) times since March 1995.
The sisters reported the matter to their stepmother, DD.[16] Afterwards, they went to the xxx police
to lodge a complaint against Gardon.[17]

For the defense, Leonardo Gracilla (Gracilla) testified that Gardon worked as an abaca stripper of a
three (3)-hectare plantation in a hilly place known as xxx, an hours walk from Gardons house in xxx.
According to Gracilla, it was impossible for Gardon to have raped AAA because Gardon spent most
of his time in xxx. Specifically, Gracilla claimed that he and Gardon started stripping abaca on August
25 and finished on August 29, 1997. On August 31, 1997, they came down from xxx to sell abaca
hemp in the poblacion. Afterwards, Gardon went back to xxx.[18]

Gardon himself took the witness stand to deny that he raped his granddaughter AAA. Gardon
claimed that the motive behind the filing of the criminal cases against him was his wifes refusal to
yield custody of AAA and her siblings to their stepmother. Allegedly, this refusal led EE,[19] the
brother of the childrens stepmother, to forcibly take custody of the children.[20]

In his Brief,[21] Gardon avers that there are material contradictions in AAAs testimony that cast
serious doubt on her claim that she was raped. In the first alleged incident of rape, AAA claimed that
she fought Gardon even as the latter pointed his knife at her. However, AAAs brother who was
sleeping in the other room was not roused by any unusual sound. The period in which Gardon put
down his knife to undress would also have allegedly given AAA a chance to escape had her
testimony been true.

Moreover, the fact that no criminal charges were brought against Gardon even after AAAs father
already learned of the first three rapes allegedly discredits her claim. So does the fact that AAA did
not exhibit any strange behavior after the supposed rape.

The Office of the Solicitor General (OSG) insists on the affirmation of Gardons conviction. According
to the OSG in its Brief,[22] AAAs testimony that she was raped by Gardon while her brother was
sleeping in the next room is entirely plausible because rape can be consummated even when the
rapist and the victim are not alone. That it may have been possible for AAA to escape while Gardon
put down his knife likewise does not affect the truthfulness of AAAs testimony.

The OSG also emphasizes that while CC testified that she did not notice any unusual behavior on
AAAs part, CC did recall AAA having said that Gardon threatened to kill her and her brother if the
truth were known.

Further, Gardons defense of alibi cannot prevail over AAAs positive identification of him as the one
who raped her. Considering that xxx is a mere hours walk from the house in xxx where the rape was
committed, Gardon was not able to prove that it was physically impossible for him to be at the scene
of the crime.

The Revised Penal Code defines the crime of Rape thus:

Art. 335. When and how rape is committed.Rape is committed by having carnal knowledge of a
woman under any of the following circumstances:

1. By using force or intimidation;

1. When the woman is deprived of reason or otherwise unconscious; and

2. When the woman is under twelve years of age or is demented.


The crime of rape shall be punished by reclusion perpetua.

xxxx

The death penalty shall also be imposed if the crime of rape is committed with any of the following
attendant circumstances:

1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the
common-law spouse of the parent of the victim.

xxxx

AAA narrated in agonizing detail punctuated by unfeigned tears that her own grandfather, Gardon,
had carnal knowledge of her through force and intimidation on four different occasions although she
remembered only those that happened in March 1995 and on August 29, 1997. She described how
Gardon held a knife to her chest, undressed her and succeeded to consummate his revolting lust.
AAA attempted to resist her grandfathers sexual assault, but the latters physical superiority, aided
by his knife-brandishing and clear moral ascendancy, prevailed. She testified:

q - While you were there together with your brother and Celestino Gardon, do you recall any incident
that happened?

a Yes, sir.

q - What was it about?

a He was carrying a knife and then he undressed me and he undressed himself.

q Who was this person carrying a knife and undressed you?

a Celestino Gardon.

q Where did this happen?


a In the house.

q Whose house?

a In the house of my grandmother [BB].[23]

q In what particular place of that house did this incident happened?

a In the room.

q Whose room?

a The room where I and my brother stayed.

q After noticing him holding a knife, what came [into] your mind?

a I was afraid.

q You said he undressed you, which part of your clothing did he remove?

a He removed my short.

q What else did he remove?

a My panty.

q What were you doing as Celestino Gardon was removing your short[s] and panty?

a I was lying then.

q Who made you lie down?

a It was Celestino Gardon.

q Did you not fight back?

a I fought back.
q Why [sic] did [sic] Celestino Gardon able to undress you when you said you fight [sic] back?

a I was fighting back but he still undressed me.

q When he undressed you[,] where was the knife he was holding[?]

a It was placed on the floor while he was undressing me.

q Was he able to remove your short[s] and panty?

a Yes, sir.

q You said that after undressing you [Celestino] Gardon undressed himself also, which part of his
clothing did he take off?

a His short[s].

xxxx

q What did he do after that?

a He inserted his.

q What do you mean by []he inserted his[]?

ATTY. ARRIESGADO:

The witness is having a hard time to answer.

WITNESS:

His penis.
PROS. PURA:

q Where did he insert his penis?

a He inserted his penis in my vagina.

q How was he able to do this?

COURT:

The witness is crying. Do not be afraid to tell the court what happened to you, Madam witness.

WITNESS:

He lay on top of me and he had a push and pull action.

PROS PURA:

q What was your position?

a I was lying down.

q Did you not close your legs so he cannot insert his penis [in]to your vagina?

a He opened it wide.

q Did you not fight?

a I did.

COURT:

q And what happened to your effort?


a He was holding a knife.

q What did he do with that knife while you were trying to resist him?

a He pointed the knife to my chest.

q And what did you do when he was pointing the knife to your chest? Were you still able to fight?

a Yes, I still continue fighting him.[24]

The foregoing excerpt from AAAs account of the first incident of rape in March 1995 is plain and
forthright. Her testimony regarding the August 29, 1997 rape is similarly candid. The trial court, which
had the unique opportunity to assess the truthfulness of her narration, was thoroughly convinced of
her credibility.

Appellate courts have consistently deferred to the findings and conclusions made by a trial judge
principally because it is the latter who gets the opportunity to directly and intimately observe the
witnesses and to determine, by their demeanor on the witness stand, the probative strength or
weakness of that which they declare. The witnesses can reveal much more than what can ordinarily
be reflected in and perceived from the transcripts that merely would contain the matter which is
stated but not how it is said. Tell-tale marks of either honesty or fabrication, truth or concoction,
reality or imagination, may be gleaned from a meaningful pause or spontaneous ready reply, the
angry or subdued denial, the forthright stare or the elusive eyes, the sudden pallor or the flush of
face, and all that characterizes the deportment and peculiar outward behavior of witnesses when
their response to both direct examination and cross examination is elicited. These signs, available
to the trial judge, are easily lost on the appellate court.[25]

It should be stressed that this case has already undergone intermediate review by the Court of
Appeals which reached the same conclusion as the trial court. Our own judicious scrutiny of the
records compels us to concur.

AAAs claim that she was raped by Gardon is corroborated by the testimony of Dr. Tagum that there
are old lacerations on AAAs genitalia located at the 3, 6, 9 and 11 oclock positions. When the
unwavering and forthright testimony of a rape victim is consistent with the medical findings, there is
sufficient basis to warrant a conclusion that the essential requisites of carnal knowledge have been
established.[26]
That AAA failed to immediately report the rape is not necessarily indicative of fabrication as Gardon
suggests. As we held in People v. Melivo,[27] incest magnifies the terror of rape because the
perpetrator is a person normally expected to give solace and protection to the victim. Access to the
victim is guaranteed by the blood relationship, proximity magnifying the sense of helplessness and
the degree of fear. The perpetrator takes full advantage of his blood relationship, ascendancy and
influence over his victim, both to commit the sexual assault and to intimidate the victim into silence.

In this case, not only was AAA cowed into submission and silence by the fact that Gardon is her
grandfather, the latter also actually threatened to kill her and her brother if she told anyone what
happened.

Apart from ruling that the prosecution successfully proved that Gardon had sexual intercourse with
AAA against her will, both courts also rejected Gardons defense of alibi declaring that the latter was
not able to sufficiently demonstrate that it was physically impossible for him to be at the locus criminis
when the rapes were committed. We quote with favor the trial courts finding:

The defense does not preclude accuseds presence at the scene of the crime. Granting he was at
xxx, xxx, xxx, Sorsogon on August 29, 1997 at 6:00 oclock in the evening, stripping abaca with the
witness, it was not physically impossible for him to be at home in xxx, xxx, Sorsogon, since xxx is
merely more than 2 kilometers away from xxx and could be reached in an hour by walking normally.
It must be noted that the accused is very familiar with the terrain of the mountain of xxx as he has
another house there aside from his house in xxx. In this case, the physical impossibility of accused
Celestino Gardon being at the locus criminis was not properly established.[28]

The defense of alibi will prevail over a victims clear and positive identification of the perpetrator if it
is compellingly established not only that the latter was somewhere else when the crime was
committed, but that he was so situated from the crime scene or its immediate vicinity that the
possibility of his presence there is remote or improbable, even impossible.[29] The defense of denial
is also weak and worthless in the face of AAAs positive identification of Gardon as her rapist.[30]

Gardons argument that the instant case was filed against him because of his wifes refusal to grant
custody of AAA and her siblings to their stepmother is ludicrous. It was AAA herself and not her
stepmother who filed the rape charges against Gardon. No young girl would falsely accuse her own
grandfather of such an atrocious crime as rape, willingly undergo an examination of her private parts,
and expose herself to a public trial, unless she is motivated by a desire to seek justice for the wrong
committed against her.[31]

Carnal knowledge of a woman by use of force and intimidation is rape as defined under Art. 335 of
the Revised Penal Code and is punishable by reclusion perpetua. Rape is punishable by reclusion
perpetua to death when it is committed with the use of a deadly weapon. And when the offended
party is under 18 years of age and the offender is an ascendant of the victim, rape is qualified and
becomes punishable by death as provided under the Death Penalty Law.[32] In this case, however,
the aggravating circumstance of use of a deadly weapon, and the qualifying circumstances of the
victims minority and her relationship with the accused as the latters granddaughter were not properly
alleged in the Informations, although the aggravating circumstance of use of a deadly weapon and
the qualifying circumstance of relationship were established during trial. Hence, the proper
imposable penalty is reclusion perpetua.

Moreover, Gardon shall not be entitled to parole in view of Republic Act (R.A.) No. 9346, Sec. 3 of
which states that [p]ersons convicted of offenses punished with reclusion perpetua, or whose
sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole
under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.[33]

We should point out that the benefit of parole cannot be extended to Gardon even if he committed
the crimes for which he is now convicted prior to the effectivity of R.A. No. 9346.[34] Sec. 2 of the
Indeterminate Sentence Law provides that the law shall not apply to persons convicted of offenses
punished with death penalty or life- imprisonment. Although the law makes no reference to persons
convicted to suffer the penalty of reclusion perpetua such as Gardon, the Court has consistently held
that the Indeterminate Sentence Law likewise does not apply to persons sentenced to reclusion
perpetua. In People v. Enriquez,[35] we declared:

[R]eclusion perpetua is the only penalty that can be imposed against the appellants. As correctly
argued by the Solicitor General, Act No. 4103, otherwise known as the Indeterminate Sentence Law,
cannot be applied in the case of appellants considering the proscription in Sec. 2 thereof, viz:

xxxx

Indeed, in People v. Asturias, Serrano v. Court of Appeals, People v. Lampaza and People v. Tan,
to name a few cases, we in effect equated the penalty of reclusion perpetua as synonymous to life-
imprisonment for purposes of the Indeterminate Sentence Law, and ruled that the latter law does not
apply to persons convicted of offenses punishable with the said penalty. Consequently, we affirm
the Court of Appeals in not applying the Indeterminate Sentence Law, and in imposing upon
appellants the penalty of reclusion perpetua instead.[36]

Reclusion perpetua is an indivisible penalty without a minimum or maximum period. Parole, on the
other hand, is extended only to those sentenced to divisible penalties as is evident from Sec. 5 of
the Indeterminate Sentence Law, which provides that it is only after any prisoner shall have served
the minimum penalty imposed on him that the Board of Indeterminate Sentence may consider
whether such prisoner may be granted parole.[37]

To reiterate, given that the Informations failed to allege the aggravating circumstance of use of a
deadly weapon and the qualifying circumstances of minority and relationship, Gardon is guilty of
simple rape only. Accordingly, the trial court and the Court of Appeals correctly awarded to AAA, for
each count of rape, P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00
as exemplary damages consistent with current jurisprudence.[38] Moral damages, separate and
distinct from the civil indemnity, are automatically granted in rape cases. Exemplary damages, on
the other hand, are imposed to deter fathers and, in this case, grandfathers, with aberrant sexual
behaviors from sexually abusing their daughters.[39]

WHEREFORE, the decision of the Regional Trial Court of Irosin, Sorsogon, Branch 55, in Criminal
Cases Nos. 1258-1259, as well as the Decision of the Court of Appeals in CA-G.R. CR-H.C. No.
01110, are AFFIRMED. Appellant CELESTINO GARDON is sentenced, in each of the criminal cases
subject of this review, to suffer the penalty of reclusion perpetua without eligibility for parole and to
pay the victim, AAA (to be identified through the Informations filed with the trial court in this case),
the amounts of P50,000.00 as

civil indemnity, P50,000.00 as moral damages and the further sum of P25,000.00 as exemplary
damages plus costs.

SO ORDERED.

23. G.R. No. 176317 July 23, 2014

MANOLITO GIL Z. ZAFRA, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.

In convicting an accused of the complex crime of malversation of public fund!: through falsification
of a public document, the courts shall impose the penalty for the graver felony in the maximum period
pursuant to Article 48 of the Revised Penal Code, plus fine in the amount of the funds malversed or
the total value of the property embezzled. In addition, the courts shall order the accused to return to
the Government the funds malversed, or the value of the property embezzled.

The Case

This appeal by petition for review on certiorari is taken from the judgment promulgated on August
16, 2006,1 whereby the Court of Appeals affirmed the consolidated decision rendered on February
17, 2004 by the Regional Trial Court (RTC) in San Fernando, La Union in Criminal Cases Nos. 4634
to Nos. 4651, inclusive,2 finding Manolito Gil Z. Zafra, a Revenue Collection Agent of the Bureau of
Internal Revenue (BIR) assigned in Revenue District 3 in San Fernando, La Union guilty of 18 counts
of malversation of public funds through falsification of public documents.3

Antecedents

The CA summarized the factual antecedents as follows:

Appellant was the only Revenue Collection Agent of the Bureau of Internal Revenue (BIR), Revenue
District 3, in San Fernando, La Union from 1993-1995. Among his duties was toreceive tax payments
for which BIR Form 25.24 or the revenue official receipts (ROR) were issued. The original of the
ROR was then given to the taxpayer while a copy thereof was retained by the collection officer.

Every month, appellant submitted BIR Form 12.31 of the Monthly Report of Collections (MRC)
indicating the numbers of the issued RORs, date of collection, name of taxpayer,the amount
collectedand the kind of tax paid. The original copy of the MRC with the attached triplicate copy of
the issued RORs was submitted to the Regional Office of the Commission on Audit (COA).
The Assessment Division of the BIR Regional Office, likewise, kept a copy of the duplicate original
of the Certificate Authorizing Registration (CAR) relating to the real property transactions, which
contained, among other data, the number of the issued ROR, its date, name of payor, and the
amount the capital gains tax and documentary stamp tax paid.

On 06 July 1995, an audit team composed of Revenue Officers Helen D. Rosario, Maria Lourdes
G.Morada, Marina B. Magluyan and Norma Duran, all from the central office of the BIR, was tasked
to audit the cash and non-cash accountabilities of the appellant.

Among the documents reviewed by the audit team were the CARs furnished by the Assessment
Division ofthe BIR; triplicate copies of the RORs attached to the MRCs submitted by appellant to
COA; and appellant’s MRCs provided by the Finance Division of the BIR. The audit team likewise
requested and was given copies of the RORs issued to the San Fernando, La Union branch of the
Philippine National Bank (PNB). A comparison of the entries in said documents revealed that the
data pertaining to 18 RORs with the same serial number, i.e., (a) 1513716, (b) 1513717, (c) 1513718,
(d) 1513719, (e) 1529758, (f) 2016733, (g) 2018017, (h) 2018310, (i) 2023438, (j) 2023837, (k)
2617653, (l) 2617821, (m) 2627973, (n) 3095194, (o) 3096955, (p) 3097386, (q) 3503336, (r)
4534412, vary with respect to the name of the taxpayer, the kind of tax paid, the amount of tax and
the date of payment. Of particular concern to the audit team were the lesser amounts of taxes
reported in appellant’s MRCs and the attached RORs compared to the amount reflected in the CARs
and PNB’s RORs.

The CARs showed that documentary stamp tax and capital gains tax for ROR Nos. 1513716,
1513717, 1513718, 1513719, 2018017, and 2023438 totalled Php114,887.78, while the MRCs and
COA’s copies of the RORs submitted by appellant, the sum of the taxes collected was only
Php227.00, or a difference of Php114,660.78. ROR Nos. 2018017 and 2023438, mentioned in CAR
as duly issued to taxpayers and for which taxes were paid, were reported in the MRC as cancelled
receipts.

Likewise, PNB’s RORs bearing Serial Nos. 1529758, 2016733, 2018310, 2023837, 2617653.
2617821, 2627973, 3095194, 3096955, 3097386, 3503336, and 4534412, show that it paid the total
sum of Php500,606.15, as documentary stamp tax. Yet, appellant’s MRCs yielded only the total sum
of Php1,115.00, for the same RORs, or a difference of Php499,491.15.

The subject 18 RORs were the accountability of appellant as shown in his Monthly Reports of
Accountability (MRA) or BIR Form 16 (A). The MRA contains, among others, the serial numbers of
blank RORs received by the collection agent from the BOR as well as those issued by him for a
certain month.

In sum, although the RORs bear the same serial numbers, the total amount reflected in the CARs
and PNB’s 12 copies of RORs is Ph₱615,493.93, while only Php1,342.00 was reported as tax
collections in the RORs’ triplicate copies submittedby appellant to COA and in his MRCs, or a
discrepancy of Php614,151.93, Thus, the audit team sent to appellant a demand letter requiring him
to restitute the total amount of Php614,151.93. Appellant ignored the letter, thus, prompting the
institution of the 18 cases for malversation of public funds through falsification of public document
against him."4

On his part, the petitioner tendered the following version, to wit:

Appellant denied that he committed the crimes charged. He averred that as Revenue Collection
Officer of San Fernando, La Union, he never accepted payments from taxpayers nor issued the
corresponding RORs. It was his subordinates, Andrew Aberin and Rebecca Supsupin, who collected
the taxes and issued the corresponding RORs. To substantiate his claim, he presented Manuel
Meris, who testified that when he paid capital gains tax, at the district office of BIR in Sam Fernando,
La Union, it was a female BIR employee who received the payment and issued Receipt No. 2023438.
Likewise, Arturo Suyat, messenger of PNB from 1979 to 1994, testified that when he made the
payments to the same BIR office, it was not appellant who received the payments nor issued the
corresponding receipts but another unidentified BIR employee."5

Decision of the RTC

On February 17, 2004, the RTC rendered its consolidated decision convicting the petitioner of 18
counts of malversation of public funds through falsification of public documents,6 decreeing as
follows:

WHEREFORE, the Court finds the accused GUILTY of the crime with which he is charged in:

1) Criminal Case No. 4634 and sentences him to suffer the indeterminate penalty of 10 years and 1
day of prision mayoras minimum up to 14 years, 8 months and 1 day of reclusion temporalas
maximum; to suffer perpetual special disqualification; and to pay a fine of ₱19,775.00;

2) Criminal Case No. 4635 and sentences him to suffer the indeterminate penalty of 2 years, 4
months and 1 day of prision correccionalas minimum up to 6 years and 1 day of prision mayoras
maximum; to suffer perpetual special disqualification; and to pay a fine of ₱4,869.00;

3) Criminal Case No. 4636 and sentences him to suffer the indeterminate penalty of 10 years and 1
day of prision mayoras minimum up to 14 years, 8 months and 1 day of reclusion temporalas
maximum; to suffer perpetual special disqualification; and to pay a fine of ₱13,260.90;

4) Criminal Case No. 4637 and sentences him to suffer the indeterminate penalty of 10 years and 1
day of prision mayoras minimum up to 14 years, 8 months and 1 day of reclusion temporalas
maximum; to suffer perpetual special disqualification; and to pay a fine of ₱17,419.00;

5) Criminal Case No. 4638 and sentences him to suffer the indeterminate penalty of 6 years and 1
day of prision mayoras minimum up to 10 years and 1 day of prision mayoras maximum; to suffer
perpetual special disqualification; and to pay a fine of ₱11,309.20;

6) Criminal Case No. 4639 and sentences him to suffer the indeterminate penalty of 6 years and 1
day of prision mayoras minimum up to 10 years and 1 day of prision mayoras maximum; to suffer
perpetual special disqualification; and to pay a fine of ₱9,736.86;

7) Criminal Case No. 4640 and sentences him to suffer the indeterminate penalty of 10 years and 1
day of prision mayoras minimum up to 17 years, 4 months and 1 day of reclusion temporalas
maximum; to suffer perpetual special disqualification; and to pay a fine of ₱39,050.00;

8) Criminal Case No. 4641 and sentences him to suffer the indeterminate penalty of 10 years and
one 1 day of prision mayoras minimum up to 17 years, 4 months and 1 day of reclusion temporalas
maximum; to suffer perpetual special disqualification; and to pay a fine of ₱38,878.55;

9) Criminal Case No. 4642and sentences him to suffer the indeterminate penalty of 10 years and
one 1 day of prision mayoras minimum up to 17 years, 4 months and 1 day of reclusion temporal as
maximum; to suffer perpetual special disqualification; and to pay a fine of ₱20,286.88;

10) Criminal Case No. 4643 and sentences him to suffer the indeterminate penalty of 10 years and
one 1 day of prision mayoras minimum up to 17 years, 4 months and 1 day of reclusion temporalas
maximum; to suffer perpetual special disqualification; and to pay a fine of ₱42,573.97;

11) Criminal Case No. 4644 and sentences him to suffer the indeterminate penalty of 10 years and
one 1 day of prision mayoras minimum up to 17 years, 4 months and 1 day of reclusion temporalas
maximum; to suffer perpetual special disqualification; and to pay a fine of ₱40,598.40;
12) Criminal Case No. 4645 and sentences him to suffer the indeterminate penalty of 10 years and
one 1 day of prision mayoras minimum up to 17 years, 4 months and 1 day of reclusion temporalas
maximum; to suffer perpetual special disqualification; and to pay a fine of ₱42,140.45;

13) Criminal Case No. 4646 and sentences him to suffer the indeterminate penalty of 10 years and
one 1 day of prision mayoras minimum up to 17 years, 4 months and 1 day of reclusion temporalas
maximum; to suffer perpetual special disqualification; and to pay a fine of ₱47,902.60;

14) Criminal Case No. 4647 and sentences him to suffer the indeterminate penalty of 10 years and
1 one day of prision mayoras minimum up to 17 years, 4 months and 1 day of reclusion temporalas
maximum; to suffer perpetual special disqualification; and to pay a fine of ₱52,740.66;

15) Criminal Case No. 4648 and sentences him to suffer the indeterminate penalty of 10 years and
one 1 day of prision mayoras minimum up to 17 years, 4 months and 1 day of reclusion temporalas
maximum; to suffer perpetual special disqualification; and to pay a fine ₱75,489.76;

16) Criminal Case No. 4649 and sentences him to suffer the indeterminate penalty of 10 years and
one 1 day of prision mayoras minimum up to 17 years, 4 months and 1 day of reclusion temporalas
maximum; to suffer perpetual special disqualification; and to pay a fine of ₱54,948.47;

17) Criminal Case No. 4650 and sentences him to suffer the indeterminate penalty of 10 years and
one 1 day of prision mayoras minimum up to 17 years, 4 months and 1 day of reclusion temporalas
maximum; to suffer perpetual special disqualification; and to pay fine of ₱45,330.18; 18) Criminal
Case No. 4651and sentences him to suffer the indeterminate penalty of 10 years and one 1 day of
prision mayoras minimum up to 17 years, 4 months and 1 day of reclusion temporalas maximum; to
suffer perpetual special disqualification; and to pay a fine of ₱37,842.05;

And to pay costs.

SO ORDERED.

Judgment of the CA

On appeal, the petitioner asserted that the RTC had erred as follows:

I. x x x IN FINDING THE ACCUSED GUILTY OF MALVERSATION OF PUBLIC FUNDS THRU


FALSIFICATION OF PUBLIC DOCUMENTS BASED ON THE PRESUMPTION THAT HE WAS
NEGLIGENT IN THE PERFORMANCE OF HIS OFFICIAL DUTIES.

II. x x x IN TAKING IT AGAINST THE ACCUSED THE FAILURE TO FILE AND PROSECUTE
PERSONS WHO COULD HAVE POSSIBLY COMMITTED THE CRIMES CHARGED.

III. x x x IN FINDING THAT ALL THE ESSENTIAL ELEMENTS OF THE CRIMES CHARGED ARE
PRESENTED IN THIS CASE.

IV. x x x WHEN IT DID NOT DECIDE TO ACQUIT THE ACCUSED BASED ON REASONABLE
DOUBT.7

On August 16, 2006, the CA promulgated its assailed judgment affirming the conviction of the
petitioner and the penalties imposed by the RTC,8 observing that he had committed falsification
through his submission of copies of falsified MRCs and had tampered revenue receipts to the BIR
and COA;9 that he was presumed to be the forger by virtue of his being in the possession of such
public documents;10 and that he had certified to the MRAs and had actually issued the tampered
receipts.11

Anent the malversation, the CA opined:


All the elements of malversation obtain in the present case. Appellant was the Revenue Collection
Agent of the BIR. As such, through designated collection clerks, hecollected taxes and issued the
corresponding receipts for tax payments made by taxpayers. He was accountable for the proper and
authorized use and application of the blank RORs issued by the BIR District Office, not the least for
the tax payments received in the performance of his duties. The unexplained shortage in his
remittances of the taxes collected as reflected in the CARs and PNB’s receipts, even in the absence
of direct proof of misappropriation, made him liable for malversation. The audit team’s demand letter
to appellant, which he failed to rebut, raised a prima facie presumption that he put to his personal
use the missing funds.12

The CA explained that even if it were to subscribe to the petitioner’s insistence that it had been his
assistants, not him, who had collected the taxes and issued the RORs, he was nonetheless liable,13
because his duty as an accountable officer had been to strictly supervise his assistants;14 and that
by failing to strictly supervise them he was responsible for the shortage resulting from the non-
remittance of the actual amounts collected.15

After the CA denied his motion for reconsideration by its resolution16 promulgated on January 11,
2007, the petitioner appeals via petition for review on certiorari.

Issues

The petitioner claims that the CA erred:

I. x x x IN FINDING THAT THE PETITIONER WAS NEGLIGENT YET HE WAS CONVICTED OF


THE CRIME OF MALVERSATION OF PUBLIC FUNDS THROUGH FALSIFICATION OF PUBLIC
[DOCUMENTS].

II. x x x IN APPLYING THE RULE OF COMMAND RESPONSIBILITY IN A COMPLEX CRIME OF


MALVERSATION OF PUBLIC FUNDS THROUGH FALSIFICATION OF PUBLIC DOCUMENTS.

III. x x x IN FINDING THAT PETITIONER IS GUILTY OF NEGLIGENCE.17

The petitioner contends that the RTC and the CA erroneously convicted him of several counts of
malversation of public funds through falsification of public documents on the basis of the finding that
he had been negligent in the performance of his duties as Revenue District Officer;18 that the acts
imputed to him did not constitute negligence; and that he could not be convicted of intentional
malversation and malversation through negligence at the same time.19

Ruling

We DENY the petition for review for its lack of merit.

The RTC stated in its decision convicting the petitioner, viz:

The particular pages of the Monthly Reports from which witness Magluyan based her examination
to determine the discrepancies in the Official Receipts listed by the accused therein, bore only the
typewritten name of the accused without any signature. However, prosecution witness Rebecca
Rillorta showed that those individual pages were part of a number of pages of a report submitted for
a particular month, and she showed that the last pages of the related reports were duly signed by
the accused. Witness Rillorta brought to the Court the original pages of the questioned monthly
reports and demonstrated to the Court the sequence of the pagination and the last pages ofthe
monthly reports bearing the signature of accused Zafra x x x. By these the prosecution demonstrated
that the individual pages of the Monthly Collection Report which listed receipts for lesser amounts
were part of official reports regularly submitted by the accused in his capacity as Collection Agent of
the BIR in San Fernando City, La Union. While counsel for accused called attention to the absence
of accused (sic) signatures on Exhibit "A", accused did not deny the monthly report[s] and the exhibits
as he chose to remain silent.
In addition, Maria Domagas, State Auditor of the BIR showed Monthly Report of Accountabilities
(Exhibit "D") which the accused, as Collection Officer submits on the first week of the following month
for a particular month. The testimony of Maria Domagas establishes that the questionable receipts
were within the series of receipts accountability of accused for a particular month. x x x. The
testimony of State Auditor Domagas established the link of accused accountable receipts, with the
receipts numbers reported in his Monthly Collection Report as well as to the receipts issued to the
taxpayers. Thereby prosecution showed that while the receipts issued to the taxpayer were not
signed by the accused, these receipts were his accountable forms. Such that the use thereof is
presumed to be sourced from him. Even the defense witness admitted that the receipts emanated
from the office of the accused.

Notably, there is a big disparity between the amount covered by BIR Form No. 25.24 issued to the
taxpayer, and the amount for the same receipt number appearing in the Monthly Collection Reports
indicating the falsification resorted to by the accused in the official reports he filed, thereby remitting
less than what was collected from taxpayers concerned, resulting tothe loss of revenue for the
government as unearthed by the auditors."20 (Emphasis and underscoring supplied)

The findings of fact of the RTC were affirmed by the CA. Hence, the petitioner was correctly convicted
of the crimes charged because such findings of fact by the trial court, being affirmed by the CA as
the intermediate reviewing tribunal, are now binding and conclusive on the Court. Accordingly, we
conclude that the Prosecution sufficiently established that the petitioner had beenthe forger of the
falsified and tampered public documents, and that the falsifications of the public documents had
been necessary to committhe malversations of the collected taxes.

Anent the petitioner’s defense that it was his subordinates who had dealt with the taxpayers and who
had issued the falsified and tampered receipts, the RTC fittingly ruminated:

x x x If this Court were to believethat the criminal act imputed to the accused were done by the
employees blamed by the accused, the presumption of negligence by the accused with respect to
his duties as such would attach; and under this presumption, accused would still not avoid liability
for the government loss.21 (Italics supplied)

The petitioner relies on this passage of the RTC’s ruling to buttress his contention that he should be
found guilty of malversation through negligence. His reliance is grossly misplaced, however, because
the RTC did not thereby pronounce that he had beenmerely negligent. The passage was nothing but
a brief forensic discourse on the legal consequence if his defense were favorably considered, and
was notthe basis for finding him guilty. To attach any undue significance to such discourse is to divert
attention away from the firmness of the finding of guilt. It cannot be denied, indeed, that the RTC did
not give any weight to his position.

Initially, the CA’s disquisition regarding malversation through negligence had the same tenor as that
of the RTC’s,22 and later on even went to the extent of opining that the petitioner ought to be held
guilty of malversation through negligence.23 But such opinion on the part of the CA would not
overturn his several convictions for the intentional felonies of malversation of public funds through
falsification of public documents. As can be seen, both lower courts unanimously concluded that the
State’s evidence established his guilt beyond reasonable doubt for malversation of public funds
through falsification of public documents. Their unanimity rested on findings of fact that are
nowbinding on the Court after he did not bring to our attention any fact or circumstance that either
lower court had not properly appreciated and considered and which, if so considered, could alter the
outcome in his favor. At any rate, even if it were assumed that the findings by the CA warranted his
being guilty only of malversation through negligence, the Court would not be barred from holding
him liable for the intentional crime of malversation of public funds through falsification of public
documents because his appealing the convictions kept the door ajar for an increase in his liability. It
is axiomatic that by appealing he waived the constitutional protection against double jeopardy,
leaving him open to being convicted of whatever crimes the Court would ultimately conclude from
the records to have been actually committed by him within the terms of the allegations in the
informations under which he had been arraigned.

Yet, we see an obvious need to correct the penalties imposed on the petitioner. He was duly
convicted of 18 counts of malversation of public funds through falsification of public documents, all
complex crimes. Pursuant to Article 48 of the Revised Penal Code,24 the penalty for each count is
that prescribed on the more serious offense, to be imposed in its maximum period. Falsification of a
public document by a public officer is penalized with prision mayor and a fine not to exceed
₱5,000.00.25 Prision mayor has a duration of six years and one day to 12 years of imprisonment.26
In contrast, the penalty for malversation ranges from prision correccional in its medium and maximum
periods to reclusion temporal in its maximum period to reclusion perpetua depending on the amount
misappropriated, and a fine equal to the amount of the funds malversed or to the total value of the
property embezzled, to wit:

Article 217. Malversation of public funds or property; Presumption of malversation. — Any public
officer who, by reason of the duties of his office, is accountable for public funds or property, shall
appropriate the same or shall take or misappropriate or shall consent, through abandonment or
negligence, shall permit any other person to take such public funds, or property, wholly or partially,
or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall
suffer:

1. The penalty of prision correccionalin its medium and maximum periods, if the amount involved in
the misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayorin its minimum and medium periods, if the amount involved is more
than two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayorin its maximum period to reclusion temporalin its minimum period, if
the amount involved is more than six thousand pesos but is less than twelve thousand pesos. 4. The
penalty of reclusion temporal, in its medium and maximum periods, if the amount involved is
morethan twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds
the latter, the penalty shall be reclusion temporalin its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal tothe total value of
the property embezzled. x x x x

To determine the maximum periods of the penalties tobe imposed on the petitioner, therefore, we
must be guided by the following rules, namely: (1) the penalties provided under Article 217 of the
Revised Penal Code constitute degrees; and (2) considering that the penalties provided under Article
217 of the Revised Penal Codeare not composed of three periods, the time included in the penalty
prescribed should be divided into three equal portions, which each portion forming one period,
pursuant to Article 65 of the Revised Penal Code.27

Accordingly, the penalties prescribed under Article 217 of the Revised Penal Code should be divided
into three periods, with the maximum period being the penalty properly imposable on each count,
except in any instance where the penalty for falsification would be greater than such penalties for
malversation. The tabulation of the periods of the penalties prescribed under Article 217 of the
Revised Penal Code follows, to wit:

[[reference -
http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2014/july2014/176317.pdf]]

TABLE 1

Amount
Misappropriated Penalty
prescribed Duration Minimum Periods
Medium Maximum
Not exceeding
₱200.00 Prision
correccional
in its
medium and
maximum
periods 2 years,
4 months
and 1 day
to 6 years 2 years,
4 months
and 1 day
to 3 years,
6 months
and 20 days 3 years,
6 months
and
21 days to
4 years,
9 months
and 10
days 4 years,
9 months
and 11 days
to 6 years.
More than ₱200
pesos but not
exceeding
₱6,000.00 Prision
mayorin its
minimum
and medium
periods 6 years and
1 day to 10
years 6 years and
1 day to
7 years and
4 months 7 years,
4 months
and 1 day
to 8 years
and 8
Months 8 years,
8 months
and 1 day
to 10 years
More than
₱6,000.00 but
less than
₱12,000.00 Prision
mayor in its
maximum
period to
reclusion
temporal in
its minimum
period 10 years
and 1 day
to 14 years
and
8 months 10 years
and 1 day
to 11 years,
6 months
and 20 days 11 years,
6 months
and 21
days to
13 years,
1 month
and
10 days 13 years,
1 month
and 11 days
to 14 years
and
8 months
More than
₱12,000.00
but less than
Reclusion
temporal in
its medium
and
maximum
periods. 14 years,
8 months
and 1 day
to 20 years 14 years,
8 months
and 1 day
to 16 years,
5 months
and 10 days 16 years,
5 months
and 11 days to
18 years,
2 months
and
20 days
18 years,
2 months<
and 21 days
to 20 years/td>
More than
₱22,000.00 Reclusion
temporal in
its maximum
period to
reclusion
perpetua 17 years,
4 months
and 1 day
to
reclusion
perpetua 17 years,
4 months
and 1 day
to 18 years
and
8 months 18 years,
8 months
and 1 day
to 20 years Reclusion
perpetua
Under Section 1 of the Indeterminate Sentence Law, an indeterminate sentence is imposed on the
offender consisting of a maximum term and a minimum term.28 The maximum term is the penalty
under the Revised Penal Code properly imposed after considering any attending circumstance; while
the minimum term is within the range of the penalty next lower than that prescribed by the Revised
Penal Codefor the offense committed.

The Indeterminate Sentence Lawwas applicable here, save for the counts for which the imposable
penalty was reclusion perpetua. Considering that each count was a complex crime without any
modifying circumstances, the maximum term of the penalty for each count is the maximum period
as shown in Table 1, supra, except for the count dealt with in Criminal Case No. 4635 involving the
misappropriated amount of ₱4,869.00, for which the corresponding penalty for malversation as
stated in Table 1 was prision mayorin its minimum and medium periods. However, because such
penalty for malversation was lower than the penalty of prision mayor imposable on falsification of a
public document under Article 171 of the Revised Penal Code, it is the penalty of prision mayor in its
maximum period that was applicable.

On other hand, the minimum of the indeterminate sentence for each count should come from the
penalty next lower than that prescribed under Article 217 of the Revised Penal Code, except in
Criminal Case No. 4635 where the penalty next lower is prision correccional in its full range, to wit:

TABLE 2

Penalty prescribed
under Art. 217 Penalty next
lower in degree Range of minimum term
Prision correccional in
its medium and
maximum periods Arresto mayor in
its maximum
period to prision
correccional in
its minimum
period 4 months and 1 day to 2 years and
4 months
Prision mayor in its
minimum and medium
period

Prision
correccional in
its medium and
maximum
periods 2 years, 4 months and 1 day to 6 years
Prision mayor in its
maximum period to
reclusion temporal in
its minimum period Prision mayor in
its minimum and
medium periods 6 years and 1 day to 10 years
Reclusion temporal in
its medium and
maximum periods. Prision mayor in
its maximum
period to
reclusion
temporal in its
minimum period
10 years and 1 day to 14 years and
8 months
Reclusion temporal in
its maximum period to
reclusion perpetua Not applicable in the present case since the proper imposable penalty to be
imposed upon the accused in already reclusion
perpetua
Penalty prescribed
under Art. 171 Penalty next
lower in degree Range of minimum term
Prision mayor Prision
correccional 6 months and 1 day to 6 years
To illustrate, the count involving the largest amount misappropriated by the accused totaling
₱75,489.76 merited the penalty of reclusion temporal in its maximum period to reclusion perpetua,
and a fine of ₱75,489.76. Obviously, the penalty is that prescribed for malversation of public funds,
the more serious offense.

In its consolidated decision of February 17, 2004, the RTC erred in pegging the maximum terms
within the minimum periods of the penalties prescribed under Article 217 of the Revised Penal Code.

It committed another error by fixing indeterminate sentences on some counts despite the maximum
of the imposable penalties being reclusion perpetua. There is even one completely incorrect
indeterminate sentence. And, as earlier noted, the penalty for falsification under Article 171 of the
Revised Penal Code was applicable in Criminal Case No. 4635 involving ₱4,869.00 due to its being
the higher penalty.

The Court now tabulates the corrected indeterminate sentences, to wit:

TABLE 3

Amount
misappropriated Indeterminate sentence
Minimum term Maximum term
₱19,775.00 10 years and 1 day of
prision mayor 18 years, 2 months and 21 days
of reclusion temporal
₱4,869.00 2 years of prision
correccional 10 years and 1 day to 12 years of
prision mayor29
₱13,260.90 10 years and 1 day prision
mayor 18 years, 2 months and 21 days
of reclusion temporal
₱17,419.00 10 years and 1 day prision
mayor 18 years, 2 months and 21 days
of reclusion temporal
₱11,390.00 6 years and 1 day of prision
mayor 13 years, 1 month and 11 days of
prision mayor
₱9,736.86 6 years and 1 day of prision
mayor 13 years, 1 month and 11 days of
prision mayor
₱39,050.00 - Reclusion perpetua
₱38,878.55 - Reclusion perpetua
₱20,286.88 10 years and 1 day prision
mayor 18 years, 2 months and 21 days
of reclusion temporal
₱42,573.97 - Reclusion perpetua
₱40,598.40 - Reclusion perpetua
₱42,140.45 - Reclusion perpetua
₱47,902.60 - Reclusion perpetua
₱52,740.66 - Reclusion perpetua
₱75,489.76 - Reclusion perpetua
₱54,984.47 - Reclusion perpetua
₱45,330.18 - Reclusion perpetua
₱37,842.05 - Reclusion perpetua
One more omission by the CA and the RTC concerned a matter of law. This refers to their failure to
decree in favor of the Government the return of the amounts criminally misappropriated by the
accused. That he was already sentenced to pay the fine in each count was an element of the
penalties imposed under the Revised Penal Code, and was not the same thing as finding him civilly
liable for restitution, which the RTC and the CA should have included in the judgment. Indeed, as
the Court emphasized in Bacolod v. People,30 it was "imperative that the courts prescribe the proper
penalties when convicting the accused, and determine the civil liability to be imposed on the accused,
unless there has been a reservation of the action to recover civil liability or a waiver of its recovery,"
explaining the reason for doing so in the following manner:

It is not amiss to stress that both the RTC and the CA disregarded their express mandate under
Section 2, Rule 120 of the Rules of Courtto have the judgment, if it was of conviction, state: "(1) the
legal qualification of the offense constituted by the acts committed by the accused and the
aggravating or mitigating circumstances which attended its commission; (2) the participation of the
accused in the offense, whether as principal, accomplice, or accessory after the fact; (3) the penalty
imposed upon the accused; and (4) the civil liability or damages caused by his wrongful act or
omission to be recovered from the accused by the offended party, if there is any, unless the
enforcement of the civil liability by a separate civil action has been reserved or waived." Their
disregard compels us to actas we now do lest the Court be unreasonably seen as tolerant of their
omission. That the Spouses Cogtas did not themselves seek the correction of the omission by an
appeal is no hindrance to this action because the Court, as the final reviewing tribunal, has not only
the authority but also the duty to correct at any time a matter of law and justice.

We also pointedly remind all trial and appellate courts to avoid omitting reliefs that the parties are
properly entitled to by law or in equity under the established facts. Their judgments will not be worthy
of the name unless they thereby fully determine the rights and obligations of the litigants. It cannot
be otherwise, for only by a full determination of such rights and obligations would they betrue to the
judicial office of administering justice and equity for all. Courts should then be alert and cautious in
their rendition of judgments of conviction in criminal cases. They should prescribe the legal penalties,
which is what the Constitution and the law require and expect them to do. Their prescription of the
wrong penalties will be invalid and ineffectual for being done without jurisdiction or in manifest grave
abuse of discretion amounting to lack of jurisdiction. They should also determine and set the civil
liability ex delictoof the accused, in order to do justice to the complaining victims who are always
entitled to them. The Rules of Court mandates them to do so unless the enforcement of the civil
liability by separate actions has been reserved or waived.31
In addition, the amounts to be returned to the Government as civil liability of the accused in each
count shall earn interest of 6% per annum reckoned from the finality of this decision until full payment
by the accused.1âwphi1

WHEREFORE, the Court AFFIRMS the decision promulgated on August 16, 2006 by the Court of
Appeals subject to the modification of the penalties imposed as stated in this decision.

ACCORDINGLY, the dispositive portion of the consolidated decision rendered on February 17, 2004
by the Regional Trial Court is hereby AMENDED to read as follows:

WHEREFORE, the Court finds the accused GUILTY of the crime with which he is charged in:

1) Criminal Case No. 4634 and sentences him to suffer the indeterminate penalty from 10 years and
one day of prision mayor, as minimum, to 18 years, two months and 21 days of reclusion temporal,
as maximum; and to pay a fine of ₱19,775.00;

2) Criminal Case No. 4635 and sentences him to suffer the indeterminate penalty from two years of
prision correccional, as minimum, to 10 years and one day of prision mayor, as maximum; and to
pay a fine of ₱5,000.00;

3) Criminal Case No. 4636 and sentences him to suffer the indeterminate penalty from 10 years and
one day of prision mayor, as minimum, to 18 years, two months and 21 days of reclusion temporal,
as maximum; and to pay a fine of ₱13,260.90;

4) Criminal Case No. 4637 and sentences him to suffer the indeterminate penalty from 10 years and
one day of prision mayor, as minimum, to 18 years, two months and 21 days of reclusion temporal,
as maximum; and to pay a fine of ₱17,419.00;

5) Criminal Case No. 4638and sentences him to suffer the indeterminate penaltyfrom 10 years and
one day of prision mayor, as minimum, to 13 years, one month and 11 days of reclusion temporal,
as maximum; and to pay a fine of ₱11,309.20;

6) Criminal Case No. 4639 and sentences him to suffer the indeterminate penalty from 10 years and
one day of prision mayor, as minimum, to 13 years, one month and 11 days of reclusion temporal,
as maximum; and to pay a fine of ₱9,736.86;

7) Criminal Case No. 4640 and sentences him to suffer reclusion perpetua; and to pay a fine of
₱39,050.00;

8) Criminal Case No. 4641 and sentences him to suffer reclusion perpetua; and to pay a fine of
₱38,878.55;

9) Criminal Case No. 4642 and sentences him to suffer the indeterminate penalty from 10 years and
one day of prision mayor, as m inimum, to 18 years, two months and 21 days of reclusion temporal,
as maximum; and to pay a fine of ₱20,286.88;

10) Criminal Case No. 4643 and sentences him to suffer reclusion perpetua; and to pay a fine of
₱42,573.97;

11) Criminal Case No. 4644 and sentences him to suffer reclusion perpetua; and to pay a fine of
₱40,598.40;

12) Criminal Case No. 4645 and sentences him to suffer reclusion perpetua; and to pay a fine of
₱42,140.45;

13) Criminal Case No. 4646 and sentences him to suffer reclusion perpetua; and to pay a fine of
₱47 ,902.60;
14) Criminal Case No. 4647 and sentences him to suffer reclusion perpetua; and to pay a fine of
₱52, 7 40.66;

15) Criminal Case No. 4648 and sentences him to suffer reclusion perpetua; and to pay a fine of
₱75,489. 76;

16) Criminal Case No. 4649 and sentences him to suffer reclusion perpetua; and to pay a fine of
₱54,948.47;

17) Criminal Case No. 4650 and sentences him to suffer reclusion perpetua; and to pay a fine of
₱45,330.18;

18) Criminal Case No. 4651 and sentences him to suffer reclusion perpetua; and to pay a fine of
₱37,842.05;

In addition, the accused shall pay to the Government the total amount of ₱614,268.73, plus interest
of 6% per annum reckoned from the finality of this decision until full payment, by way of his civil
liability.

The accused shall further pay the costs of suit.

SO ORDERED.

SO ORDERED.

24.PEOPLE OF THE PHILIPPINES,

- versus -
ALLEN UDTOJAN MANTALABA,

For this Court's consideration is the Decision[1] dated July 31, 2008 of the Court of Appeals (CA) in
CA-G.R. CR-H.C. No. 00240-MIN, affirming the Omnibus Judgment[2] dated September 14, 2005,
of the Regional Trial Court, Branch 1, Butuan City in Criminal Case No. 10250 and Criminal Case
No. 10251, finding appellant Allen Udtojan Mantalaba, guilty beyond reasonable doubt of violation
of Sections 5 and 11, Article II of Republic Act (RA) 9165.

The facts, as culled from the records, are the following:

The Task Force Regional Anti-Crime Emergency Response (RACER) in Butuan City received a
report from an informer that a certain Allen Mantalaba, who was seventeen (17) years old at the
time, was selling shabu at Purok 4, Barangay 3, Agao District, Butuan City. Thus, a buy-bust team
was organized, composed of PO1 Randy Pajo, PO1 Eric Simon and two (2) poseur-buyers who were
provided with two (2) pieces of P100 marked bills to be used in the purchase.

Around 7 o'clock in the evening of October 1, 2003, the team, armed with the marked money,
proceeded to Purok 4, Barangay 3, Agao District, Butuan City for the buy-bust operation. The two
poseur-buyers approached Allen who was sitting at a corner and said to be in the act of selling
shabu. PO1 Pajo saw the poseur-buyers and appellant talking to each other. Afterwards, the
appellant handed a sachet of shabu to one of the poseur-buyers and the latter gave the marked
money to the appellant. The poseur-buyers went back to the police officers and told them that the
transaction has been completed. Police officers Pajo and Simon rushed to the place and handcuffed
the appellant as he was leaving the place.

The police officers, still in the area of operation and in the presence of barangay officials Richard S.
Tandoy and Gresilda B. Tumala, searched the appellant and found a big sachet of shabu. PO1
Simon also pointed to the barangay officials the marked money, two pieces of P100 bill, thrown by
the appellant on the ground.

After the operation, and in the presence of the same barangay officials, the police officers made an
inventory of the items recovered from the appellant which are: (1) one big sachet of shabu which
they marked as RMP-1-10-01-03; (2) one small sachet of shabu which they marked as RMP 2-10-
01-03; and (3) two (2) pieces of one hundred pesos marked money and a fifty peso (P50) bill.
Thereafter, a letter-request was prepared by Inspector Ferdinand B. Dacillo for the laboratory
examination of the two (2) sachets containing a crystalline substance, ultra-violet examination on the
person of the appellant as well as the two (2) pieces of one hundred pesos marked money. The
request was brought by PO1 Pajo and personally received by Police Inspector Virginia Sison-Gucor,
Forensic Chemical Officer of the Regional Crime Laboratory Office XII Butuan City, who immediately
conducted the examination. The laboratory examination revealed that the appellant tested positive
for the presence of bright orange ultra-violet fluorescent powder; and the crystalline substance
contained in two sachets, separately marked as RMP-1-10-01-03 and RMP-2-10-01-03, were
positively identified as methamphetamine hydrochloride.

Thereafter, two separate Informations were filed before the RTC of Butuan City against appellant for
violation of Sections 5 and 11 of RA 9165, stating the following:

Criminal Case No. 10250

That on or about the evening of October 1, 1003 at Purok 4, Barangay 3, Agao, Butuan City,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without
authority of law, did then and there willfully, unlawfully, and feloniously sell zero point zero four one
two (0.0412) grams of methamphetamine hydrochloride, otherwise known as shabu which is a
dangerous drug.

CONTRARY TO LAW : (Violation of Sec. 5, Art. II of R.A. No. 9165).[3]


Criminal Case No. 10251

That on or about the evening of October 1, 2003 at Purok 4, Barangay 3, Agao, Butuan City,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without
authority of law, did then and there willfully, unlawfully and feloniously possess zero point six one
three one (0.6131) grams of methamphetamine hydrochloride, otherwise known as shabu, which is
a dangerous drug.

CONTRARY TO LAW: (Violation of Section 11, Art. II of R.A. No. 9165).[4]

Eventually, the cases were consolidated and tried jointly.

Appellant pleaded NOT GUILTY to the charges against him. Thereafter, trial on the merits ensued.

In its Omnibus Judgment[5] dated September 14, 2005, the RTC found the appellant guilty beyond
reasonable doubt of the offense charged, the dispositive portion of which, reads:

WHEREFORE, the Court hereby finds accused Allen Mantalaba y Udtojan GUILTY beyond
reasonable doubt in Criminal Case No. 10250 for selling shabu, a dangerous drug, as defined and
penalized under Section 5, Article II of Republic Act No. 9165. As provided for in Sec. 98 of R.A.
9165, where the offender is a minor, the penalty for acts punishable by life imprisonment to death
shall be reclusion perpetua to death. As such, Allen Mantalaba y Udtojan is hereby sentenced to
RECLUSION PERPETUA and to pay a fine of Five Hundred Thousand Pesos (P500,000.00).

In Criminal Case No. 10251, the Court likewise finds accused Allen Mantalaba y Udtojan GUILTY
beyond reasonable doubt for illegally possessing shabu, a dangerous drug, weighing 0.6131 gram
as defined and penalized under Section 11, Article II of Republic Act No. 9165 and accused being a
minor at the time of the commission of the offense, after applying the Indeterminate Sentence Law,
he is accordingly sentenced to six (6) years and one (1) day, as minimum, to eight (8) years, as
maximum of prision mayor and to pay a fine of Three Hundred Thousand Pesos (P300,000.00).

SO ORDERED.[6]

The CA affirmed in toto the decision of the RTC. It disposed of the case as follows:

WHEREFORE, the Decision of the Regional Trial Court, Branch 1, Butuan City dated September
14, 2005 appealed from finding the accused-appellant Allen Udtojan Mantalaba guilty beyond
reasonable doubt with the crime of Violation of Section 5 and Section 11, Article II of Republic Act
9165, otherwise known as the Comprehensive Dangerous Drugs Act, is AFFIRMED in toto, with
costs against accused-appellant.

SO ORDERED.[7]

Thus, the present appeal.

Appellant states the lone argument that the lower court gravely erred in convicting him of the crime
charged despite failure of the prosecution to prove his guilt beyond reasonable doubt.

According to appellant, there was no evidence of actual sale between him and the poseur-buyer. He
also argues that the chain of custody of the seized shabu was not established. Finally, he asserts
that an accused should be presumed innocent and that the burden of proof is on the prosecution.

The petition is unmeritorious.

Appellant insists that the prosecution did not present any evidence that an actual sale took place.
However, based on the testimony of PO1 Randy Pajo, there is no doubt that the buy-bust operation
was successfully conducted, thus:

PROS. RUIZ:

Q: Will you explain to this Honorable Court why did you conduct and how did you conduct your buy-
bust operation at the time?

A: We conducted a buy-bust operation because of the report from our civilian assets that Allen
Mantalaba was engaged in drug trade and selling shabu. And after we evaluated this Information we
informed Inspector Dacillo that we will operate this accused for possible apprehension.

Q: Before you conducted your buy-bust operation, what procedure did you take?

A: We prepared the operational plan for buy-bust against the suspect. We prepared a request for
powder dusting for our marked moneys to be used for the operation.

Q: Did you use marked moneys in this case?

xxxx

Q: Then armed with these marked moneys, what steps did you take next?

A: After briefing of our team, we proceeded immediately to the area.


Q: You mentioned of poseur-buyer, what would the poseur-buyer do?

A: We made an arrangement with the poseur-buyer that during the buying of shabu there should be
a pre-arranged signal of the poseur-buyer to the police officer.

Q: What happened when your poseur-buyer who, armed with this marked moneys, approached the
guy who was selling shabu at that time?

A: The poseur-buyer during that time gave the marked moneys to the suspect.

Q: Where were you when this poseur-buyer gave the moneys to the suspect?

A: We positioned ourselves about 10 meters away from the area of the poseur-buyer and the
suspect.

Q: You mentioned of the pre-arranged signal, what would this be?

A: This is a case-to-case basis, your Honor, in the pre-arrangement signal because in the pre-
arranged signal we used a cap and a towel. (sic) In the case, of this suspect, there was no towel
there was no cap at the time of giving the shabu and the marked moneys to the suspect and
considering also that that was about 7:00 o'clock in the evening. The poseur-buyer immediately
proceeded to us and informed us that the shabu was already given by the suspect.

Q: What did you do next after that?

A: After examining the sachet of shabu that it was really the plastic containing white [crystalline]
substance, we immediately approached the suspect.

Q: Who was with a (sic) suspect when you conducted the buy-bust operation[?] Was he alone or did
he had (sic) any companion at that time?

A: He was alone.

Q: When you rushed up to the suspect what did you do?

A: We informed the suspect that we are the police officers and he has this constitutional rights and
we immediately handcuffed him.

Q: Where were the marked moneys?

A: The marked moneys were thrown on the ground. After we handcuffed the suspect, we did not
immediately searched in. We called the attention of the barangay officials to witness the search of
the suspect.

Q: How many sachets of shabu have you taken from the suspect during the buy-bust operation?

A: We took from the possession of the suspect one big sachet of shabu.
xxxx

Q: What was the result of the searched (sic) for him?

A: We confiscated one big sachet of suspected shabu and the retrieval of 2 pieces of 100 peso bills
as marked moneys.[8]

What determines if there was, indeed, a sale of dangerous drugs in a buy-bust operation is proof of
the concurrence of all the elements of the offense, to wit: (1) the identity of the buyer and the seller,
the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor.[9]
From the above testimony of the prosecution witness, it was well established that the elements have
been satisfactorily met. The seller and the poseur-buyer were properly identified. The subject
dangerous drug, as well as the marked money used, were also satisfactorily presented. The
testimony was also clear as to the manner in which the buy-bust operation was conducted.

To corroborate the testimony of PO2 Pajo, the prosecution presented the testimony of Police
Inspector Virginia Sison-Gucor, a forensic chemical officer, who confirmed that the plastic containing
white crystalline substance was positive for methamphetamine hydrochloride and that the petitioner
was in possession of the marked money used in the buy-bust operation, thus:

PROS. RUIZ:

Q: What was the result of your examination or what were your findings on the sachets of suspected
shabu?

A: After the preliminary and confirmatory tests were conducted on the stated specimen, the result
was positive for methamphetamine hydrochloride, a dangerous drug.

xxxx

Q: What were your findings when you examined the living person of the accused, as well as the
marked money mentioned in this report?

A: According to my report, the findings for the living person of Allen Udtojan Mantalaba is positive to
the test for the presence of bright orange ultra-violet flourescent powder. x x x[10]

The above only confirms that the buy-bust operation really occurred. Once again, this Court stresses
that a buy-bust operation is a legally effective and proven procedure, sanctioned by law, for
apprehending drug peddlers and distributors.[11] It is often utilized by law enforcers for the purpose
of trapping and capturing lawbreakers in the execution of their nefarious activities.[12] In People v.
Roa,[13] this Court had the opportunity to expound on the nature and importance of a buy-bust
operation, ruling that:
In the first place, coordination with the PDEA is not an indispensable requirement before police
authorities may carry out a buy-bust operation. While it is true that Section 86[14] of Republic Act
No. 9165 requires the National Bureau of Investigation, PNP and the Bureau of Customs to maintain
"close coordination with the PDEA on all drug-related matters," the provision does not, by so saying,
make PDEA's participation a condition sine qua non for every buy-bust operation. After all, a buy-
bust is just a form of an in flagrante arrest sanctioned by Section 5, Rule 113[15] of the Rules of the
Court, which police authorities may rightfully resort to in apprehending violators of Republic Act No.
9165 in support of the PDEA.[16] A buy-bust operation is not invalidated by mere non-coordination
with the PDEA.

Neither is the lack of prior surveillance fatal. The case of People v. Lacbanes[17] is quite instructive:

In People v. Ganguso,[18] it has been held that prior surveillance is not a prerequisite for the validity
of an entrapment operation, especially when the buy-bust team members were accompanied to the
scene by their informant. In the instant case, the arresting officers were led to the scene by the
poseur-buyer. Granting that there was no surveillance conducted before the buy-bust operation, this
Court held in People v. Tranca,[19] that there is no rigid or textbook method of conducting buy-bust
operations. Flexibility is a trait of good police work. The police officers may decide that time is of the
essence and dispense with the need for prior surveillance.[20]

The rule is that the findings of the trial court on the credibility of witnesses are entitled to great respect
because trial courts have the advantage of observing the demeanor of the witnesses as they testify.
This is more true if such findings were affirmed by the appellate court. When the trial court's findings
have been affirmed by the appellate court, said findings are generally binding upon this Court.[21]

In connection therewith, the RTC, as affirmed by the CA, was also correct in finding that the appellant
is equally guilty of violation of Section 11 of RA 9165, or the illegal possession of dangerous drug.
As an incident to the lawful arrest of the appellant after the consummation of the buy-bust operation,
the arresting officers had the authority to search the person of the appellant. In the said search, the
appellant was caught in possession of 0.6131 grams of shabu. In illegal possession of dangerous
drugs, the elements are: (1) the accused is in possession of an item or object which is identified to
be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and
consciously possessed the said drug.[22]

As a defense, appellant denied that he owns the shabu and the marked money confiscated from
him. However, based on his cross-examination, such denial was not convincing enough to merit
reasonable doubt, thus:

PROS. RUIZ:

Q: So it is true now that when these police officers passed you by they recovered from your
possession one sachet of shabu?

A: Yes, sir.
Q: And it is true that after you were arrested and when you were searched they also found another
sachet of shabu also in your pocket?

A: Yes, sir.

Q: And you mentioned in your counter-affidavit marked as Exhibit H for the prosecution that no
money was taken from you because you have none at that time, is it not?

A: None sir, only the P250.00 which Jonald Ybanoso left to me.

Q: This P250.00 which Jonald left to you was also confiscated from your possession?

A: Yes, sir.

Q: Were not P200 of the P250.00 was thrown to the ground during the time you were arrested by
the police?

A: No, sir.

Q: It was taken from your possession?

A: Yes, sir.

Q: And when the policemen brought you to the crime laboratory and had your hands tested for ultra-
violet fluorescent powder, your hands tested positively for the presence of the said powder?

A: Yes, sir.[23]

Incidentally, the defenses of denial and frame-up have been invariably viewed by this Court with
disfavor for it can easily be concocted and is a common and standard defense ploy in prosecutions
for violation of the Dangerous Drugs Act. In order to prosper, the defenses of denial and frame-up
must be proved with strong and convincing evidence.[24]

Another contention raised by the appellant is the failure of the prosecution to show the chain of
custody of the recovered dangerous drug. According to him, while it was Inspector Ferdinand B.
Dacillo who signed the request for laboratory examination, only police officers Pajo and Simon were
present in the buy-bust operation.

Section 21 of RA 9165 reads:

SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs,
Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have
custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ),
and any elected public official who shall be required to sign the copies of the inventory and be given
a copy thereof.

Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is
justifiable ground therefor, and as long as the integrity and the evidentiary value of the
confiscated/seized items are properly preserved by the apprehending officer/team.[25] Its non-
compliance will not render an accuseds arrest illegal or the items seized/confiscated from him
inadmissible.[26] What is of utmost importance is the preservation of the integrity and the evidentiary
value of the seized items, as the same would be utilized in the determination of the guilt or innocence
of the accused.[27] In this particular case, it is undisputed that police officers Pajo and Simon were
members of the buy-bust operation team. The fact that it was Inspector Ferdinand B. Dacillo who
signed the letter-request for laboratory examination does not in any way affect the integrity of the
items confiscated. All the requirements for the proper chain of custody had been observed. As
testified to by PO2 Pajo regarding the procedure undertaken after the consummation of the buy-bust
operation:

Prosecutor

Q: What did you do next after that?

A: After examining the sachet of shabu that it was really the plastic containing white [crystalline] in
substance, we immediately approached the suspect.

xxxx

Q: When you rushed up to the suspect, what did you do?

A: We informed the suspect that we are the police officers and he has this [constitutional] rights and
immediately handcuffed him.

Q: Where were the marked moneys?

A: The marked moneys were thrown on the ground. After we handcuffed the suspect, we did not
immediately searched in. We called the attention of the barangay officials to witness the search of
the suspect.
xxxx

Q: Now, before you searched the suspect you requested the presence of the barangay officials.
Now, when these barangay officials were present, what did you do on the suspect?

A: We immediately searched the suspect.

Q: What was the result of the searched for him? (sic)

A: We confiscated one big sachet of suspected shabu and the retrieval of 2 pieces of P100.00 peso
bills as marked moneys.

Q: You said the suspect threw the marked moneys when you searched him, where were the marked
moneys?

A: On the ground.

Q: Who picked these marked moneys?

A: I was the one who picked the marked moneys.

Q: And then after you had picked the marked moneys and after you had the 2 pieces of sachets of
shabu; one during the buy-bust and the other one during the search, what did you do [with] these 2
pieces of sachets of shabu and the marked moneys?

A: I recorded those items recovered, sir, during the search to the Certificate of Inventory.[28]

As ruled by this Court, what is crucial in the chain of custody is the marking of the confiscated item
which, in the present case, was complied with, thus:

Crucial in proving chain of custody is the marking[29] of the seized drugs or other related items
immediately after they are seized from the accused. Marking after seizure is the starting point in the
custodial link, thus, it is vital that the seized contraband are immediately marked because succeeding
handlers of the specimens will use the markings as reference. The marking of the evidence serves
to separate the marked evidence from the corpus of all other similar or related evidence from the
time they are seized from the accused until they are disposed of at the end of criminal proceedings,
obviating switching, "planting," or contamination of evidence.[30]
Anent the age of the appellant when he was arrested, this Court finds it appropriate to discuss the
effect of his minority in his suspension of sentence. The appellant was seventeen (17) years old
when the buy-bust operation took place or when the said offense was committed, but was no longer
a minor at the time of the promulgation of the RTC's Decision.

It must be noted that RA 9344 took effect on May 20, 2006, while the RTC promulgated its decision
on this case on September 14, 2005, when said appellant was no longer a minor. The RTC did not
suspend the sentence in accordance with Article 192 of P.D. 603, The Child and Youth Welfare
Code[31] and Section 32 of A.M. No. 02-1-18-SC, the Rule on Juveniles in Conflict with the Law,[32]
the laws that were applicable at the time of the promulgation of judgment, because the imposable
penalty for violation of Section 5 of RA 9165 is life imprisonment to death.

It may be argued that the appellant should have been entitled to a suspension of his sentence under
Sections 38 and 68 of RA 9344 which provide for its retroactive application, thus:

SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of
age at the time of the commission of the offense is found guilty of the offense charged, the court
shall determine and ascertain any civil liability which may have resulted from the offense committed.
However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict
with the law under suspended sentence, without need of application: Provided, however, That
suspension of sentence shall still be applied even if the juvenile is already eighteen years (18) of
age or more at the time of the pronouncement of his/her guilt.

Upon suspension of sentence and after considering the various circumstances of the child, the court
shall impose the appropriate disposition measures as provided in the Supreme Court [Rule] on
Juveniles in Conflict with the Law.

xxxx

Sec. 68. Children Who Have Been Convicted and are Serving Sentence. - Persons who have been
convicted and are serving sentence at the time of the effectivity of this Act, and who were below the
age of eighteen (18) years at the time of the commission of the offense for which they were convicted
and are serving sentence, shall likewise benefit from the retroactive application of this Act. x x x

However, this Court has already ruled in People v. Sarcia[33] that while Section 38 of RA 9344
provides that suspension of sentence can still be applied even if the child in conflict with the law is
already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt, Section
40 of the same law limits the said suspension of sentence until the child reaches the maximum age
of 21. The provision states:
SEC. 40. Return of the Child in Conflict with the Law to Court. - If the court finds that the objective of
the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if
the child in conflict with the law has willfully failed to comply with the condition of his/her disposition
or rehabilitation program, the child in conflict with the law shall be brought before the court for
execution of judgment.

If said child in conflict with the law has reached eighteen (18) years of age while under suspended
sentence, the court shall determine whether to discharge the child in accordance with this Act, to
order execution of sentence, or to extend the suspended sentence for a certain specified period or
until the child reaches the maximum age of twenty-one (21) years.

Hence, the appellant, who is now beyond the age of twenty-one (21) years can no longer avail of the
provisions of Sections 38 and 40 of RA 9344 as to his suspension of sentence, because such is
already moot and academic. It is highly noted that this would not have happened if the CA, when
this case was under its jurisdiction, suspended the sentence of the appellant. The records show that
the appellant filed his notice of appeal at the age of 19 (2005), hence, when RA 9344 became
effective in 2006, appellant was 20 years old, and the case having been elevated to the CA, the latter
should have suspended the sentence of the appellant because he was already entitled to the
provisions of Section 38 of the same law, which now allows the suspension of sentence of minors
regardless of the penalty imposed as opposed to the provisions of Article 192 of P.D. 603.[34]

Nevertheless, the appellant shall be entitled to appropriate disposition under Section 51 of RA No.
9344, which provides for the confinement of convicted children as follows:[35]

SEC. 51. Confinement of Convicted Children in Agricultural Camps and other Training Facilities. - A
child in conflict with the law may, after conviction and upon order of the court, be made to serve
his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and
other training facilities that may be established, maintained, supervised and controlled by the
BUCOR, in coordination with the DSWD.

In finding the guilt beyond reasonable doubt of the appellant for violation of Section 5 of RA 9165,
the RTC imposed the penalty of reclusion perpetua as mandated in Section 98[36] of the same law.
A violation of Section 5 of RA 9165 merits the penalty of life imprisonment to death; however, in
Section 98, it is provided that, where the offender is a minor, the penalty for acts punishable by life
imprisonment to death provided in the same law shall be reclusion perpetua to death. Basically, this
means that the penalty can now be graduated as it has adopted the technical nomenclature of
penalties provided for in the Revised Penal Code. The said principle was enunciated by this Court
in People v. Simon,[37] thus:
We are not unaware of cases in the past wherein it was held that, in imposing the penalty for offenses
under special laws, the rules on mitigating or aggravating circumstances under the Revised Penal
Code cannot and should not be applied. A review of such doctrines as applied in said cases,
however, reveals that the reason therefor was because the special laws involved provided their own
specific penalties for the offenses punished thereunder, and which penalties were not taken from or
with reference to those in the Revised Penal Code. Since the penalties then provided by the special
laws concerned did not provide for the minimum, medium or maximum periods, it would
consequently be impossible to consider the aforestated modifying circumstances whose main
function is to determine the period of the penalty in accordance with the rules in Article 64 of the
Code.

This is also the rationale for the holding in previous cases that the provisions of the Code on the
graduation of penalties by degrees could not be given supplementary application to special laws,
since the penalties in the latter were not components of or contemplated in the scale of penalties
provided by Article 71 of the former. The suppletory effect of the Revised Penal Code to special laws,
as provided in Article 10 of the former, cannot be invoked where there is a legal or physical
impossibility of, or a prohibition in the special law against, such supplementary application.

The situation, however, is different where although the offense is defined in and ostensibly punished
under a special law, the penalty therefor is actually taken from the Revised Penal Code in its
technical nomenclature and, necessarily, with its duration, correlation and legal effects under the
system of penalties native to said Code. When, as in this case, the law involved speaks of prision
correccional, in its technical sense under the Code, it would consequently be both illogical and
absurd to posit otherwise.

xxxx

Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree of
the penalty, in accordance with the rules in Article 61 of the Code as applied to the scale of penalties
in Article 71, are the stage of execution of the crime and the nature of the participation of the accused.
However, under paragraph 5 of Article 64, when there are two or more ordinary mitigating
circumstances and no aggravating circumstance, the penalty shall be reduced by one degree. Also,
the presence of privileged mitigating circumstances, as provided in Articles 67 and 68, can reduce
the penalty by one or two degrees, or even more. These provisions of Articles 64(5), 67 and 68
should not apply in toto in the determination of the proper penalty under the aforestated second
paragraph of section 20 of Republic Act No. 6425, to avoid anomalous results which could not have
been contemplated by the legislature.

Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not
specially provided for in the four preceding paragraphs thereof, the courts shall proceed by analogy
therewith. Hence, when the penalty prescribed for the crime consists of one or two penalties to be
imposed in their full extent, the penalty next lower in degree shall likewise consist of as many
penalties which follow the former in the scale in Article 71. If this rule were to be applied, and since
the complex penalty in this case consists of three discrete penalties in their full extent, that is, prision
correccional, prision mayor and reclusion temporal, then one degree lower would be arresto menor,
destierro and arresto mayor. There could, however, be no further reduction by still one or two
degrees, which must each likewise consist of three penalties, since only the penalties of fine and
public censure remain in the scale.

The Court rules, therefore, that while modifying circumstances may be appreciated to determine the
periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should
such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional.
It is for this reason that the three component penalties in the second paragraph of Section 20 shall
each be considered as an independent principal penalty, and that the lowest penalty should in any
event be prision correccional in order not to depreciate the seriousness of drug offenses. Interpretatio
fienda est ut res magis valeat quam pereat. Such interpretation is to be adopted so that the law may
continue to have efficacy rather than fail. A perfect judicial solution cannot be forged from an
imperfect law, which impasse should now be the concern of and is accordingly addressed to
Congress.[38]

Consequently, the privileged mitigating circumstance of minority[39] can now be appreciated in fixing
the penalty that should be imposed. The RTC, as affirmed by the CA, imposed the penalty of
reclusion perpetua without considering the minority of the appellant. Thus, applying the rules stated
above, the proper penalty should be one degree lower than reclusion perpetua, which is reclusion
temporal, the privileged mitigating circumstance of minority having been appreciated. Necessarily,
also applying the Indeterminate Sentence Law (ISLAW), the minimum penalty should be taken from
the penalty next lower in degree which is prision mayor and the maximum penalty shall be taken
from the medium period of reclusion temporal, there being no other mitigating circumstance nor
aggravating circumstance.[40] The ISLAW is applicable in the present case because the penalty
which has been originally an indivisible penalty (reclusion perpetua to death), where ISLAW is
inapplicable, became a divisible penalty (reclusion temporal) by virtue of the presence of the
privileged mitigating circumstance of minority. Therefore, a penalty of six (6) years and one (1) day
of prision mayor, as minimum, and fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal, as maximum, would be the proper imposable penalty.

WHEREFORE, the Decision dated July 31, 2008 of the Court of Appeals (CA) in CA-G.R. CR-H.C.
No. 00240-MIN, affirming the Omnibus Judgment dated September 14, 2005 of the Regional Trial
Court, Branch 1, Butuan City in Criminal Case No. 10250 and Criminal Case No. 10251, finding
appellant Allen Udtojan Mantalaba, guilty beyond reasonable doubt of violation of Sections 5 and
11, Article II of RA 9165 is hereby AFFIRMED with the MODIFICATION that the penalty that should
be imposed on appellant's conviction of violation of Section 5 of RA 9165, is six (6) years and one
(1) day of prision mayor, as minimum, and fourteen (14) years, eight (8) months and one (1) day of
reclusion temporal, as maximum.

SO ORDERED.

25. G.R. Nos. 186659-710 October 19, 2011

ZACARIA A. CANDAO, ABAS A. CANDAO AND ISRAEL B. HARON, Petitioners,


vs.
PEOPLE OF THE PHILIPPINES AND SANDIGANBAYAN, Respondents.
DECISION

VILLARAMA, JR., J.:

Assailed in this petition for review on certiorari under Rule 45 is the Decision1 dated October 29,
2008 and Resolution2 dated February 20, 2009 of the Sandiganbayan (First Division) finding the
petitioners guilty beyond reasonable doubt of malversation of public funds under Article 217 of the
Revised Penal Code, as amended.

The Facts

On August 5, 1993, Chairman Pascasio S. Banaria of the Commission on Audit (COA) constituted a
team of auditors from the central office to conduct an Expanded Special Audit of the Office of the
Regional Governor, Autonomous Region for Muslim Mindanao (ORG-ARMM). State Auditors Heidi
L. Mendoza (Team Leader) and Jaime Roxas (Member) were directed to conduct the said audit
under the supervision of Jaime P. Naranjo (State Auditor V). From August 24 to September 1, 1993,
the expanded audit was thus conducted on the financial transactions and operations of ORG-ARMM
for the period July 1992 to March 1993.

As stated in Special Audit Office (SAO) Report No. 93-25 submitted by the audit team, it was found
that illegal withdrawals were made from the depository accounts of the agency through the issuance
of checks payable to the order of petitioner Israel B. Haron (Disbursing Officer II) without the required
disbursement vouchers. The following are the details of the government accounts and the fifty-two
(52) checks3 issued and encashed without proper supporting documents:

PNB Account No. 370-3208

DATE

ISSUED

CHECK NO.

SIGNATORIES

AMOUNT

December 29, 1992 414431 Israel Haron & Abas Candao 500,000.00
December 29, 1992 414432 Israel Haron & Abas Candao 439,585.00
December 29, 1992 414433 Israel Haron & Abas Candao 210,000.00
January 26, 1993 414487 Israel Haron & Abas Candao 500,000.00
January 26, 1993 414488 Israel Haron & Abas Candao 500,000.00
January 26, 1993 414489 Israel Haron & Abas Candao 500,000.00
February 2, 1993 414493 Israel Haron & Abas Candao 500,000.00
February 2, 1993 414494 Israel Haron & Abas Candao 500,000.00
February 3, 1993 414499 Israel Haron & Abas Candao 450,000.00
February 5, 1993 414500 Israel Haron & Abas Candao 500,000.00
February 5, 1993 461801 Israel Haron & Abas Candao 500,000.00
February 18, 1993 461803 Israel Haron & Zacaria Candao 500,000.00
February 18, 1993 461804 Israel Haron & Zacaria Candao 104,985.64
February 22, 1993 461876 Israel Haron & Zacaria Candao 500,000.00
February 22, 1993 461877 Israel Haron & Zacaria Candao 500,000.00
February 22, 1993 461878 Israel Haron & Zacaria Candao 500,000.00
February 22, 1993 461879 Israel Haron & Zacaria Candao 500,000.00
February 22, 1993 461880 Israel Haron & Zacaria Candao 500,000.00
February 22, 1993 461881 Israel Haron & Zacaria Candao 500,000.00
February 24, 1993 461888 Israel Haron & Abas Candao 64,000.00
March 18, 1993 461932 Israel Haron & Abas Candao 500,000.00
March 18, 1993 461933 Israel Haron & Abas Candao 500,000.00
March 19, 1993 461934 Israel Haron & Abas Candao 350,000.00
March 22, 1993 461935 Israel Haron & Abas Candao 500,000.00
March 22, 1993 461936 Israel Haron & Abas Candao 500,000.00
TOTAL ₱11,118,570.64
Account No. 844061 (Treasurer of the Philippines)

DATE
ISSUED CHECK NO. SIGNATORIES AMOUNT
January 11, 1993
January 11, 1993 968739 Israel Haron & Abas Candao 400,000.00
January 11, 1993 968740 Israel Haron & Abas Candao 400,000.00
January 11, 1993 968741 Israel Haron & Abas Candao 400,000.00
January 13, 1993 968751 Pandical Santiago & Abas Candao 120,000.00
January 18, 1993 968804 Israel Haron & Abas Candao 380,000.00
March 2, 1993 974192 Israel Haron & Zacaria Candao 250,000.00
March 4, 1993 974208 Israel Haron & Abas Candao 500,000.00
March 4, 1993 974209 Israel Haron & Abas Candao 500,000.00
March 4, 1993 974210 Israel Haron & Abas Candao 500,000.00
March 4, 1993 974211 Israel Haron & Abas Candao 500,000.00
March 4, 1993 974212 Israel Haron & Abas Candao 30,000.00
March 5, 1993 974227 Israel Haron & Abas Candao 500,000.00
March 5, 1993 974228 Israel Haron & Abas Candao 500,000.00
March 12, 1993 974244 Israel Haron & Abas Candao 100,000.00
March 18, 1993 974324 Israel Haron & Abas Candao 500,000.00
March 18, 1993 974325 Israel Haron & Abas Candao 500,000.00
March 18, 1993 974326 Israel Haron & Abas Candao 500,000.00
March 18, 1993 974327 Israel Haron & Abas Candao 500,000.00
March 18, 1993 974328 Israel Haron & Abas Candao 500,000.00
March 19, 1993 974339 Israel Haron & Abas Candao 200,000.00
March 19, 1993 974340 Israel Haron & Abas Candao 25,000.00
March 19, 1993 974341 Israel Haron & Abas Candao 172,000.00
March 29, 1993 979533 Israel Haron & Abas Candao 500,000.00
March 29, 1993 979543 Israel Haron & Abas Candao 500,000.00
March 29, 1993 979544 Israel Haron & Abas Candao 500,000.00
March 29, 1993 979545 Israel Haron & Abas Candao 300,000.00
March 30, 1993 979590 Israel Haron & Abas Candao 150,000.00
TOTAL ₱9,927,000.00
GRAND TOTAL = ₱21,045,570.64
In a letter dated September 10, 1993, Chairman Banaria demanded from petitioner Haron to produce
and restitute to the ARMM-Regional Treasurer immediately the full amount of ₱21,045,570.64 and
submit his explanation within seventy-two (72) hours together with the official receipt issued by the
ARMM Regional Treasurer in acknowledgment of such restitution.

On April 17, 1998, the Office of the Special Prosecutor, Office of the Ombudsman-Mindanao, filed
in the Sandiganbayan criminal cases for malversation of public funds against the following ORG-
ARMM officials/employees: Zacaria A. Candao (Regional Governor), Israel B. Haron (Disbursing
Officer II), Abas A. Candao (Executive Secretary) and Pandical M. Santiago (Cashier). They were
charged with violation of Article 217 of the Revised Penal Code, as amended, under the following
informations with identical allegations except for the varying date, number and amount of the check
involved in each case:

Criminal Case Nos. 24569-24574, 24576-24584, 24593, 24595-246204

(42 counts involving checks in the total amount of ₱17,190,585.00)


That on or about 29 December 1992, in Cotabato City, Philippines, and within the jurisdiction of this
Honorable Court, accused Israel B. Haron, a low-ranking public officer being the Disbursing Officer
of the Office of the Regional Governor, and as such is responsible and accountable for the funds of
the said office in the Autonomous Region in Muslim Mindanao, in connivance and in conspiracy with
[Abas] Candao, Executive Secretary of the same office, who is a high ranking officer, while in the
performance of their respective official functions, taking advantage of their official positions, and
committing the offense in relation to their respective functions, with gross abuse of confidence, did
then and there wilfully, unlawfully and feloniously withdraw the amount of P500,000.00 from the
depository account of the Office of the Regional Governor thru the issuance of Check No. 414431
dated 29 December 1992, payable to the order of accused Israel B. Haron, without the required
disbursement voucher and once in possession of the said amount withdrawn, wilfully, unlawfully and
feloniously take, misappropriate, embezzle and convert to their own personal use and benefit the
amount of P500,000.00, to the damage and prejudice of the government in the aforesaid sum as
abovestated.

CONTRARY TO LAW.

Criminal Case Nos. 24585- 24592 and 245945

(9 counts involving checks in the total amount of ₱3,854,985.64)

That on or about 18 February 1993, in Cotabato City, Philippines, and within the jurisdiction of this
Honorable Court, accused Israel B. Haron, a low-ranking public officer being the Disbursing Officer
of the Office of the Regional Governor, and as such is responsible and accountable for the funds of
the said office in the Autonomous Region in Muslim Mindanao, in connivance and in conspiracy with
Zacaria Candao, Regional Governor of the same office, who is a high ranking officer, while in the
performance of their respective official functions, taking advantage of their official positions, and
committing the offense in relation to their respective functions, with gross abuse of confidence, did
then and there wilfully, unlawfully and feloniously withdraw the amount of P500,000.00 from the
depository account of the Office of the Regional Governor thru the issuance of Check No. 461803
dated 18 February 1993, payable to the order of accused Israel B. Haron, without the required
disbursement voucher and once in possession of the said amount withdrawn, wilfully, unlawfully and
feloniously take, misappropriate, embezzle and convert to their own personal use and benefit the
amount of P500,000.00, to the damage and prejudice of the government in the aforesaid sum as
abovestated.

CONTRARY TO LAW.

Criminal Case No. 245756

That on or about 13 January 1993, in Cotabato City, Philippines, and within the jurisdiction of this
Honorable Court, accused Israel B. Haron, a low-ranking public officer being the Disbursing Officer
of the Office of the Regional Governor, and as such is responsible and accountable for the funds of
the said office in the Autonomous Region in Muslim Mindanao, in connivance and in conspiracy with
Pandical Santiago and [Abas] Candao, Cashier and Executive Secretary, respectively, of the same
office, while in the performance of their respective official functions, taking advantage of their official
positions, and committing the offense in relation to their respective functions, with gross abuse of
confidence, did then and there wilfully, unlawfully and feloniously withdraw the amount of
P120,000.00 from the depository account of the Office of the Regional Governor thru the issuance
of Check No. 968751 dated 13 January 1993, payable to the order of accused Israel B. Haron,
without the required disbursement voucher and once in possession of the said amount withdrawn,
wilfully, unlawfully and feloniously take, misappropriate, embezzle and convert to their own personal
use and benefit the amount of P120,000.00, to the damage and prejudice of the government in the
aforesaid sum as abovestated.

CONTRARY TO LAW.
At their arraignment, all accused pleaded not guilty to the charge of malversation. In the meantime,
accused Santiago died and consequently the case against him in Criminal Case No. 24575 was
dismissed.

The prosecution’s lone witness was Heidi L. Mendoza,7 COA State Auditor IV. She testified that their
expanded audit, conducted from August 24 to September 1, 1993, disclosed the illegal withdrawals
of funds from the PNB and Treasury accounts of ORG-ARMM involving 52 checks issued without
the required disbursement vouchers. Specifically, their attention was caught by the fact that the
Report of Checks Issued by the Deputized Disbursing Officer (RCIDDO) showed that the subject 52
checks have no assigned voucher numbers. The audit team demanded for the original of said
RCIDDO for the months of December 1992, February and March 1993, which were supposed to be
prepared and submitted by the disbursing officer, but the ORG-ARMM did not submit the same. In a
letter dated August 24, 1993, the COA likewise made a demand from the Regional Governor through
the resident auditor for the production of the original disbursement vouchers and complete
supporting documents of the subject checks.8

In response, the Finance and Budget Management Services of ORG-ARMM informed the audit team
that the vouchers were already submitted to COA Resident Auditor, Supervising State Auditor IV
Rosalinda Gagwis, purportedly under transmittal letters dated March 4 and March 30, 1993.
Mendoza then personally verified from Gagwis who denied having received the subject vouchers
and issued a certification to that effect. In a letter dated September 10, 1993, Chairman Banaria
finally demanded for the restitution of the funds illegally withdrawn through the issued 52 checks and
to comply with such demand within 72 hours from receipt of said letter. As to the absence of her
signature in the audit report, she explained that she was already on maternity leave when the interim
report (SAO Report No. 93-25) was submitted. However, she, together with audit team member
Jaime B. Roxas executed a Joint Affidavit dated May 17, 1996 regarding their conduct of the
expanded audit and their findings and recommendation. Although Haron submitted copies of
disbursement vouchers to the COA receiving clerk, this was made beyond the 72-hour deadline
given to them.9

On cross-examination, witness Mendoza was asked if the audit team had informed the office or
parties concerned that they are going to be audited (entry conference). She replied that this was a
sensitive assignment, recalling that they were threatened after their identities were established
during the earlier audit of the same office such that she had to be brought back to Manila. At that
time, the Regional Governor was accused Candao. Hence, during the expanded audit, the team was
unable to proceed as in ordinary situations. While they did an entry conference during the previous
main audit, they were unable to do so at the time of the expanded audit. Again for security reasons,
the team also did not conduct an exit conference after field work; they would be risking their lives if
they discuss there and then their findings. Due to threat to her life, it was her team supervisor
(Naranjo) and member (Roxas) who personally retrieved the documents in Cotabato City. She
admitted the belated submission of original vouchers (October 29, 1993) to the COA central office
but these are without supporting documents.10

For the accused, the first witness was Nick Luz Aduana who was the Director of Finance of ORG-
ARMM from July 1991 until his resignation in March 1993. He testified that his functions then include
the supervision and overseeing of the three divisions: Budget, Accounting and Management. When
report of the audit team came out, he was surprised because they were not informed of the audit.
He was familiar with the 52 checks because the disbursement vouchers passed through his office.
He explained the procedure with respect to the processing of cash advances as follows: generally,
there were cash advances made in ARMM which cover travels, salaries, etc. but particularly for
"peace and order campaign," it emanates from the ORG when the Regional Governor issues an
authority for cash advance, and then they process the voucher (Finance and Budget Management
Services); once their division have performed their accounting functions relative to the vouchers, the
same are forwarded to the Regional Governor for approval or in his absence to his Executive
Secretary; after the approval of the voucher, it will be forwarded to the Cash Division for the issuance
of check; the person who will liquidate the cash advance is usually the employee mentioned in the
voucher; and after they have prepared all the liquidation papers, these are submitted to the Budget
and Management Division before forwarding them to the COA Auditor. He maintained that the
original disbursement vouchers have already been submitted to the COA Special Audit Office. Since
1991, they have never received any notice of disallowance of their disbursements, including those
intended for "peace and order campaign." Being the first ARMM set of officials, they had sought the
advice of their Auditor as to proper accounting procedures; they followed the advice of Auditor
Gagwis who said that there should be authority to cash advance coming from the Regional Governor
which should be given to the Disbursing Officer. He identified the vouchers presented by the defense
as the ones processed by their division with the corresponding amounts reflected therein. Insofar as
the expanded audit is concerned, they were not given the opportunity to defend the case as they
were not given the so-called exit conference.11

On cross-examination, witness Aduana hinted on political reasons why an expanded audit was
conducted when Regional Governor Pagdanganan assumed office despite the fact that an earlier
audit was already made during the administration of Governor Candao. He claimed that he did not
receive any copy of the demand letter dated August 24, 1993; he was no longer connected with
ARMM at the time. He also maintained that the disbursement vouchers were processed by their
office and entered into their books of account. However, when asked what happened to these books
of account, Aduana said these are with the Office of the Regional Governor. He admitted that the
only supporting document for the checks and vouchers were the authority to cash advance; the
"peace and order campaign" disbursement is peculiar to ARMM and hence they did not know what
supporting documents to attach. When queried about the particular activities covered by this "peace
and order campaign" disbursement, Aduana admitted that he really does not know the breakdown
of expenses or for what items in particular were the disbursed amounts spent. Their division merely
processed the disbursement vouchers that were prepared by the ORG, and while his signature
appears in said vouchers his role was limited to certifying the availability of funds.12

The next witness, Rosalinda G. Gagwis, former COA Resident Auditor of ORG-ARMM, testified that
in 1991 she was the Chief of the Operation and Review Division (ORD), COA Region XII which at
the time has jurisdiction over ORG-ARMM; she was Auditor-in-Charge of ORG-ARMM only up to
March 8, 1993 when the separation of COA Region XII personnel and COA-ARMM was
implemented. Among her duties as such Auditor-in-Charge was to conduct a post-audit of the
financial transactions of ORG-ARMM. In the course of the expanded audit of ORG-ARMM, she was
requested to issue the Certification dated August 27, 1993 stating that she has not received the
January to March 1993 vouchers as stated in the letter of Haron. Subsequently, on July 22, 1998
she executed a two-page Affidavit because she has been hearing that her previous Certification was
misinterpreted to mean that the subject vouchers were "not existing." She then clarified that actually,
ORG-ARMM tried to submit bundles of vouchers to her office but she refused to accept them
because she was no longer Auditor-in-Charge of that office as there was already an order separating
COA-Regional Office XII from the COA-ARMM. She confirmed that when ARMM was a newly
created agency, its officers (Aduana, Brigida Fontanilla and Bartolome Corpus) sought her advice
regarding accounting procedures. Prior to submission to her office for post-audit, the accountable
officers like the Cashier and Disbursement Officer prepares and submits a Monthly Report of
Disbursements to the Accounting Division which, within ten days from receipt and recording in the
Books of Accounts, shall submit the same to the auditor for post-audit custody. Based on her
experience, however, this deadline was not strictly observed as 25% to 50% of the national agencies
are delayed in the submission of such reports. The usual reasons given were the geographical
locations of the offices in Region XII and ARMM, lack of manpower due to budgetary constraints and
lack of know-how of personnel regarding accounting and auditing procedures, especially if there is
a change in administration. As far as she can recall, their office had not issued a notice of
disallowance to ORG-ARMM although notices of suspension have been issued for minor deficiencies
noted during post-audit; these notices of suspension were usually complied with by the agency.13

On cross-examination, witness Gagwis said that upon seeing the bundles of vouchers being
submitted to her office, she immediately refused to accept, and sort of "washed her hands" by telling
her staff that they were no longer incharge of ORG-ARMM. She did not actually scan those
documents and examine their contents. She also did not receive the Monthly Report of
Disbursements from said office. As to the execution of the July 22, 1998 Affidavit, she insisted that
she did it voluntarily five years later in order to clarify herself after hearing about the case filed in the
Sandiganbayan and her name was being dragged because of the Certification she made in August
1993. As to the earlier Certification, she maintained that she did not receive the subject vouchers
and she does not know where these documents are at present.14

Another witness, Brigida C. Fontanilla, Chief Accountant, ORG-ARMM, testified that her duties and
responsibilities include the processing, updating and recording of transactions of ORG-ARMM in the
books of accounts while vouchers are recorded in the Journal of Analysis and Obligations (JAO).
They also prepared financial reports. As to cash advances, she explained that the procedure starts
with the preparation of the voucher at ORG which also issues the authority to withdraw cash advance
which is attached to the disbursement voucher and supporting documents, afterwhich it is forwarded
to the Finance and Budget Management Services for processing: there, it is first submitted to the
Budget Division for the request for allotment of obligation, and next forwarded to the Accounting
Division for the journal entry of obligation and recording in the books of account, and then the
documents are forwarded to the Office of the Finance Director for his approval, and thereafter
returned back to the ORG for final approval for the issuance of the check. Presently, their office is
more systematic and organized than it was during the administration of Governor Candao. Sometime
in 1994 during the investigation by the Office of the Ombudsman relative to the subject illegal
withdrawals, she was summoned to produce the Cash Receipts Book and Cash Disbursement Book
of the 1991 ARMM seed money for regional, provincial and district Impact Infrastructure Projects.
However, she was not able to comply with the said directive because such books are not among
those required by the COA for their office; what the COA directed them to maintain was the JAO, a
book of original entry for allotments received and disbursements for the transactions of ORG-ARMM.
She wrote a letter-reply to the Ombudsman Investigator and transmitted the original 1992 JAO which
was never returned to their office.15

Explaining the contents of the JAO, witness Fontanilla said that the entries in the voucher are
recorded therein: an obligation number is placed in the request of allotment (ROA) which also
appears in the voucher. Before such recording in the JAO, the disbursement vouchers are presented
to their office. Actually, she does not know whether the 1992 JAO still exists or with the Ombudsman
Investigator because at the time, they were holding office temporarily at the office of ORG Auditor
which unfortunately got burned sometime in 1996.16

As for witness Bartolome M. Corpus, his deposition upon oral examination was taken on August 27,
2004 before Atty. Edipolo Sarabia, Clerk of Court, Regional Trial Court of Davao City. He testified
that in 1991 he was appointed Chief of the Management Division of the Finance and Budget
Management Services (FBMS), ORG-ARMM. He was placed on floating status for three years by
the new Chief of Staff of ORG-ARMM (Nasser Pangandaman) upon the election of a new Regional
Governor, Lininding Pangandaman who defeated Governor Candao. As Finance Director, it was his
responsibility to review all transactions of the ORG-ARMM and see to it that COA regulations are in
place and supporting documents are complete. After reviewing documents, which include
disbursement vouchers, his office submits the same to the COA Regional Officer or to the COA
Resident Auditor. Being the internal control unit of ORG-ARMM, all transactions and supporting
documents must pass through his office. As to the transactions covered by the subject 52 checks,
he confirmed that these passed through his office, including the disbursement vouchers, afterwhich
these were forwarded to the Accounting Office and then to the Cash Division for issuance of checks.
He claimed that his subordinates tried to submit the disbursement vouchers to the Resident Auditor,
as shown by the transmittal letters dated March 4 and March 30, 1993. However, Ms. Gagwis refused
to accept the vouchers because she was no longer the Resident Auditor at the time. During the time
of Governor Candao, he does not recall having received any notice of disallowance from the COA
although there were times they received a notice of suspension which had been settled. During the
time he was on floating status, he discovered that some vouchers including those original vouchers
covered by the subject 52 checks were still in his filing cabinet. He then handed them over to Haron.
In 1996, he was reinstated by Governor Nur Misuari.17

On cross-examination, witness Corpus said that they tried to submit the vouchers to Gagwis
sometime in late March or early April 1993. He was not aware of the August 27, 1993 Certification
issued by Gagwis. When asked about the stated purpose "peace and order campaign" in the cash
advance vouchers, he confirmed that this was the practice at that time and it was only during
liquidation that ORG will have the list of expenses; the supporting documents will come only after
the issuance of the check.18 On re-direct examination, he maintained that there were previous
similar vouchers for "peace and order campaign" which have not been disallowed but only
suspended by the COA.19

Sandiganbayan Ruling

By Decision dated October 29, 2008, the Sandiganbayan found petitioner Haron guilty beyond
reasonable doubt of malversation of public funds under Article 217 of the Revised Penal Code, as
amended, committed in conspiracy with petitioners Zacaria A. Candao and Abas A. Candao who
were likewise sentenced to imprisonment and ordered to pay a fine equivalent to the amount of the
check in each case, as follows:

Criminal Case Nos. 24569-24584,


24593, 24595-24620

Israel B. Haron and Abas A. Candao - convicted of 43 counts of Malversation of Public Funds and
each was sentenced to indeterminate prison term in each case of ten (10) years and one (1) day of
prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion
temporal, as maximum, and ordered to pay a fine in each case equivalent to the particular check
involved, without subsidiary imprisonment in case of insolvency and the penalty of perpetual special
disqualification to hold public office and other accessory penalties provided by law. In the service of
their respective sentences, they shall be entitled to the benefit of the three-fold rule as provided in
Art. 70 of the Revised Penal Code, as amended.

Criminal Case Nos. 24585-24592 & 24594

Israel B. Haron and Zacaria A. Candao – convicted of 9 counts of Malversation of Public Funds and
each was sentenced to indeterminate prison term in each case of ten (10) years and one (1) day of
prision mayor as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion
temporal, as maximum, and ordered to pay a fine in each case equivalent to the particular check
involved, without subsidiary imprisonment in case of insolvency and the penalty of perpetual special
disqualification to hold public office and other accessory penalties provided by law. In the service of
their respective sentences, they shall be entitled to the benefit of the three-fold rule as provided in
Art. 70 of the Revised Penal Code, as amended.20

The Sandiganbayan found no merit in petitioners’ claim that the subject checks were covered by
existing disbursement vouchers which were belatedly submitted and received by the COA Central
Office on October 29, 1993. It said that had those vouchers really existed at the time of the 52
withdrawals petitioners made from December 29, 1992 to March 30, 1993, petitioner Haron could
have readily produced them when required to do so by the special audit team on August 24, 1993.
Said court likewise did not give credence to the testimony of Corpus in view of the August 27, 1993
Certification issued by then COA Auditor Gagwis that she has not received the vouchers mentioned
in the transmittal letters. Gagwis’ explanation, on the other hand, contradicted the testimony of
Corpus that when he returned to his office sometime in May 1993, he found the original vouchers
together with the transmittal letters still there in his filing cabinet and have not been submitted to the
COA Resident Auditor.

The Sandiganbayan noted that petitioners presented no proof that the cash advances intended for
"peace and order campaign" were spent for public purposes, as in fact the alleged disbursement
vouchers did not indicate any detail as to the nature of the expense/s such as purchase of equipment,
services, meals, travel, etc. and there were no supporting documents such as the Request for
Issuance of Voucher, Purchase Request and Inspection Report of the items supposedly purchased.
More importantly, the vouchers were not accomplished in accordance with existing COA circulars
because they are unnumbered and undated. Hence, the belatedly submitted vouchers are of doubtful
veracity or origin, nay, a fabricated evidence or, as pointed out by the prosecution, "self-serving or
an afterthought, belatedly prepared to give the illegal disbursements amounting to the aggregate
amount of more than ₱21M, a semblance of regularity."21 As to the JAO and Certification dated
August 18, 1998 issued by Chief Accountant Fontanilla, the Sandiganbayan found there is nothing
therein to indicate the particular disbursement voucher that corresponds to each of the subject 52
checks which were neither reflected in the JAO.

With respect to petitioners’ assertion that the audit conducted by the COA special audit team was
incomplete and tainted as it did not follow procedures because the person audited were not notified
thereof, the Sandiganbayan found these allegations unsubstantiated as in fact at the start of the
audit on August 24, 1993, the audit team thru their team leader State Auditor Naranjo, informed the
management of ORG-ARMM thru the COA Resident Auditor of the expanded special audit to be
conducted as they even requested for the original copies of the disbursement vouchers together with
their complete supporting documents covering the 52 checks. But despite said letter, the ORG-
ARMM failed to heed the audit team’s request. For the failure of petitioner Haron to account for the
funds involved in the illegal withdrawals when asked to do so, the presumption arose that he
misappropriated the same, which presumption was not overcome by defense evidence.

On the respective liabilities of petitioners Zacaria A. Candao and Abas A. Candao, the
Sandiganbayan held that by their act of co-signing the subject checks, petitioner Haron was able to
consummate the illegal withdrawals without the required disbursement vouchers of the amounts
covered by the 43 checks (for Abas) and 9 checks (for Zacaria). Thus, by their collective acts, said
court concluded that petitioners conspired to effect the illegal withdrawals of public funds which,
when required by the COA to be properly accounted for, petitioners failed to do so.

In its Resolution dated February 20, 2009, the Sandiganbayan denied the prosecution’s motion to
cancel bail bonds and petitioners’ motion for reconsideration.

The Petition

Petitioners raised the following grounds for their acquittal:

1. …THE SANDIGANBAYAN...COMMITTED A REVERSIBLE ERROR IN CONVICTING THE


ACCUSED PETITIONERS FOR THE CRIME OF MALVERSATION OF PUBLIC FUNDS DESPITE
PROOF POSITIVE THAT, CONTRARY TO WHAT THE INFORMATIONS CHARGED, THERE
WERE DISBURSEMENT VOUCHERS EXCEPT THAT THE COA REFUSED TO ACCEPT MUCH
LESS EXAMINE THE SAME. PETITIONERS WERE THUS DENIED DUE PROCESS OF LAW
WHEN THEY WERE CONVICTED FOR OFFENSES NOT COVERED BY THE INFORMATIONS
AGAINST THEM.

2. ….THE SANDIGANBAYAN COMMITTED A REVERSIBLE ERROR IN NOT APPLYING THE


"EQUIPOISE RULE" WHICH IF APPLIED WOULD HAVE RESULTED IN THE ACQUITTAL OF THE
ACCUSED-PETITIONERS.

3. … THE SANDIGANBAYAN COMMITTED A REVERSIBLE ERROR IN CONVICTING ACCUSED


PETITIONERS ZACARIA A. CANDAO AND ABAS A. CANDAO DESPITE THE FACT THAT THE
CHARGE OF CONSPIRACY WHICH IS THEIR ONLY LINK TO THE OFFENSES HEREIN HAS
NOT BEEN PROVEN BEYOND REASONABLE DOUBT.22

Our Ruling

The petition has no merit.

Article 217 of the Revised Penal Code, as amended, provides:

Art. 217. Malversation of public funds or property –Presumption of malversation. - Any public officer
who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate
the same, or shall take or misappropriate or shall consent, or through abandonment or negligence,
shall permit any other person to take such public funds or property, wholly or partially, or shall
otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in
the misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more
than two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if
the amount involved is more than six thousand pesos but is less than twelve thousand pesos.

4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is
more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds
the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value of
the property embezzled.

The failure of a public officer to have duly forthcoming any public fund or property with which he is
chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has
put such missing funds or property to personal uses. (Emphasis supplied.)

The following elements are essential for conviction in malversation cases:

1. That the offender is a public officer;

2. That he had custody or control of funds or property by reason of the duties of his office;

3. That those funds or property were public funds or property for which he was accountable; and

4. That he appropriated, took, misappropriated or consented or, through abandonment or


negligence, permitted another person to take them.23

All the foregoing elements were satisfactorily established by the prosecution in this case. Petitioners
have not rebutted the legal presumption that with the Disbursing Officer’s (Haron) failure to account
for the illegally withdrawn amounts covered by the subject checks when demanded by the COA, they
misappropriated and used the said funds for their personal benefit.

Petitioners however assert that their convictions were based solely on the Sandiganbayan’s
conclusion that the vouchers submitted by the defense were illegal or irregular, whereas the
informations simply alleged their absence or non-existence. They contend that said court could not
have validly assessed the disbursement vouchers as to their legality because that duty pertains to
the COA which refused and failed to examine the same. Had the court allowed the COA to evaluate
and make a ruling on the validity of the vouchers, the result would have been different and most
probably they would have been acquitted of the crime charged.

We are not persuaded by petitioners’ asseveration.

The Sandiganbayan categorically ruled that the disbursement vouchers were inexistent at the time
of the issuance of the subject checks and expanded special audit based on its findings that: (1)
petitioner Haron could not produce the vouchers upon demand by the COA in August 1993; (2)
Resident Auditor Gagwis certified at about the same time that to date she has not received the
vouchers mentioned in the supposed transmittal letters of March 4 and March 30, 1993; (3) the
entries in the duly certified Report of Checks Issued by Deputized Disbursing Officer (RCIDDO) of
the late Pandical M. Santiago, Cashier of ORG-ARMM, showed that for the months of January,
February and March 1993, there were indeed entries of checks issued with Haron as payee but no
disbursement voucher numbers as these were either lacking, detached or missing, and which were
verified by the audit team as corresponding to the subject 52 checks issued and signed by petitioners
and encashed by petitioner Haron who received the money withdrawn from the government
depositary accounts; (4) FBMS Chief Corpus testified that he discovered the supposed vouchers still
there at his office filing cabinet in May 1993 when these supposedly have already been submitted to
the COA Resident Auditor as reflected in the March 4 and March 30, 1993 transmittal letters; and
(5) the supposed original disbursement vouchers belatedly submitted to the COA central office last
week of October 1993, were undated and unnumbered with no supporting documents as required
by COA Circular No. 78-79 (April 5, 1978).

Contrary to petitioners’ claim, the special audit team could not have examined the vouchers
presented by the defense (Exhibits "1" to "1-A-43") because the only indication of its actual receipt
by the COA as admitted by the prosecution, was on October 23, 1993 long after the expanded audit
was completed and beyond the 72-hour deadline specified in the September 10, 1993 demand letter
addressed to Haron for the restitution of the total amount of illegal withdrawals. In addition, such
disbursement vouchers have no supporting documents as required by COA Circular No. 92-389
dated November 3, 1992. On the other hand, the Certification dated August 18, 1998 issued by
ARMM Chief Accountant Fontanilla stating that the vouchers were regular because these were
properly recorded in the JAO, was not given credence by the Sandiganbayan. Upon scrutiny of the
JAO covering the period January to March 1993, said court found that it failed to indicate the
particular disbursement voucher that corresponds to each of the 52 checks, aside from the fact that
it was prepared by the ARMM Chief Accountant who is under the control and supervision of the
ORG. Notably, the JAO is used to summarize obligations incurred and to monitor the balance of
unobligated allotments, which is prepared by function, and project for each fund and allotment
class.24 The JAO is thus separate and distinct from the Report of Checks Issued (RCI) which is
prepared by the Disbursing Officer to report checks issued for payment of expenditures and/or prior
accounts payable. What is clear is that the disbursement of funds covered by the 52 checks issued
by the petitioners are subject to the rule that disbursement voucher "shall be used by all government
entities for all money claims" and that the "voucher number shall be indicated on the voucher and on
every supporting document."25 Inasmuch as the JAO for the months of January, February and
March 1993 do not at all reflect or indicate the number of each of the disbursement vouchers
supposedly attached to the 52 checks, it cannot serve as evidence of the recording of the original
vouchers, much less the existence of those disbursement vouchers at the time of the issuance of
the 52 checks and the conduct of the expanded audit.

Petitioners further raise issue on the regularity, completeness and objectivity of the expanded audit
conducted by the COA. However, records showed that the ORG-ARMM were duly notified of the
expanded audit at its commencement and was even requested thru the COA Resident Auditor to
submit the needed disbursement vouchers. It must be noted that at an earlier date, a main audit had
already been conducted for the financial transactions of ORG-ARMM during which State Auditor
Mendoza experienced threats against her own security that she had to be immediately recalled from
her assignment. Thus, by the time the expanded audit was conducted in August 1993 upon the
directive of the COA Chairman, petitioners, especially Haron, should have seen to it that the records
of disbursements and financial transactions including the period January to March 1993, were in
order and available for further audit examination. In any case, even if there was no so-called entry
conference held, there is absolutely no showing that petitioners were denied due process in the
conduct of the expanded audit as they simply refused or failed to heed COA’s request for the
production of disbursement vouchers and likewise ignored the formal demand made by COA
Chairman Banaria for the restitution of the illegally withdrawn public funds, submitting their
compliance only after the special audit team had submitted their report.

In fine, the Sandiganbayan committed no reversible error in holding that the testimonial and
documentary evidence presented by the petitioners failed to overcome the prima facie evidence of
misappropriation arising from Haron’s failure to give a satisfactory explanation for the illegal
withdrawals from the ARMM funds under his custody and control. Petitioners likewise did not
accomplish the proper liquidation of the entire amount withdrawn, during the expanded audit or any
time thereafter. There is therefore no merit in petitioners’ argument that the Sandiganbayan erred in
not applying the equipoise rule.

Under the equipoise rule, where the evidence on an issue of fact is in equipoise or there is doubt on
which side the evidence preponderates, the party having the burden of proof loses. The equipoise
rule finds application if the inculpatory facts and circumstances are capable of two or more
explanations, one of which is consistent with the innocence of the accused and the other consistent
with his guilt, for then the evidence does not fulfill the test of moral certainty, and does not suffice to
produce a conviction.26 Such is not the situation in this case because the prosecution was able to
prove by adequate evidence that Disbursing Officer Haron failed to account for funds under his
custody and control upon demand, specifically for the ₱21,045,570.64 illegally withdrawn from the
said funds. In the crime of malversation, all that is necessary for conviction is sufficient proof that the
accountable officer had received public funds, that he did not have them in his possession when
demand therefor was made, and that he could not satisfactorily explain his failure to do so. Direct
evidence of personal misappropriation by the accused is hardly necessary in malversation cases.27

As to the liability of petitioners Zacaria A. Candao and Abas A. Candao, the Sandiganbayan correctly
ruled that they acted in conspiracy with petitioner Haron to effect the illegal withdrawals and
misappropriation of ORG-ARMM funds.

Conspiracy exists when two or more persons come to an agreement concerning the commission of
a felony and decide to commit it. Conspiracy need not be proved by direct evidence and may be
inferred from the conduct of the accused before, during and after the commission of the crime, which
are indicative of a joint purpose, concerted action and concurrence of sentiments. In conspiracy, the
act of one is the act of all. Conspiracy is present when one concurs with the criminal design of
another, indicated by the performance of an overt act leading to the crime committed. It may be
deduced from the mode and manner in which the offense was perpetrated.28

In this case, petitioners Zacaria A. Candao and Abas A. Candao were co-signatories in the subject
checks issued without the required disbursement vouchers. Their signatures in the checks, as
authorized officials for the purpose, made possible the illegal withdrawals and embezzlement of
public funds in the staggering aggregate amount of ₱21,045,570.64.1avvphil

Petitioners Zacaria A. Candao and Abas A. Candao assail their conviction as co-conspirators in the
crime of malversation contending that their only participation was in the ministerial act of signing the
checks. The checks having passed through processing by finance and accounting personnel of
ORG-ARMM, petitioners said they had to rely on the presumption of regularity in the performance of
their subordinates’ acts. Furthermore, they assert that since conspiracy requires knowledge of the
purpose for which the crime was committed, they could not have been conspirators in the design to
defraud the government.

We disagree with such postulation.

As the Regional Governor of ARMM, petitioner Zacaria A. Candao cannot exonerate himself from
liability for the illegally withdrawn funds of ORG-ARMM. Under Section 102 (1) of the Government
Auditing Code of the Philippines, he is responsible for all government funds pertaining to the agency
he heads:

Section 102. Primary and secondary responsibility. – (1) The head of any agency of the government
is immediately and primarily responsible for all government funds and property pertaining to his
agency.

x x x x (Emphasis supplied.)

Petitioners Zacaria A. Candao and his Executive Secretary Abas A. Candao are both accountable
public officers within the meaning of Article 217 of the Revised Penal Code, as amended. No checks
can be prepared and no payment can be effected without their signatures on a disbursement voucher
and the corresponding check. In other words, any disbursement and release of public funds require
their approval,29 as in fact checks issued and signed by petitioner Haron had to be countersigned
by them. Their indispensable participation in the issuance of the subject checks to effect illegal
withdrawals of ARMM funds was therefore duly established by the prosecution and the
Sandiganbayan did not err in ruling that they acted in conspiracy with petitioner Haron in embezzling
and misappropriating such funds.

Moreover, as such accountable officers, petitioners Zacaria A. Candao and Abas A. Candao were
charged with the duty of diligently supervising their subordinates to prevent loss of government funds
or property, and are thus liable for any unlawful application of government funds resulting from
negligence, as provided in Sections 104 and 105 of the Government Auditing Code of the
Philippines, which read:

Sec. 104. Records and reports required by primarily responsible officers. – The head of any agency
or instrumentality of the national government or any government-owned or controlled corporation
and any other self-governing board or commission of the government shall exercise the diligence of
a good father of a family in supervising accountable officers under his control to prevent the
incurrence of loss of government funds or property, otherwise he shall be jointly and solidarily liable
with the person primarily accountable therefor. x x x x

Sec. 105. Measure of liability of accountable officers. x x x

(2) Every officer accountable for government funds shall be liable for all losses resulting from the
unlawful deposit, use, or application thereof and for all losses attributable to negligence in the
keeping of the funds.

The fact that ARMM was still a recently established autonomous government unit at the time does
not mitigate or exempt petitioners from criminal liability for any misuse or embezzlement of public
funds allocated for their operations and projects. The Organic Act for ARMM (R.A. No. 6734)
mandates that the financial accounts of the expenditures and revenues of the ARMM are subject to
audit by the COA.30 Presently, under the Amended Organic Act (R.A. No. 9054), the ARMM
remained subject to national laws and policies relating to, among others, fiscal matters and general
auditing.31 Here, the prosecution successfully demonstrated that the illegal withdrawals were
deliberately effected through the issuance of checks without the required disbursement vouchers
and supporting documents. And even if petitioners Zacaria A. Candao and Abas A. Candao invoke
lack of knowledge in the criminal design of their subordinate, Disbursing Officer Haron, they are still
liable as co-principals in the crime of malversation assuming such misappropriation of public funds
was not intentional, as alleged in the informations, but due to their negligence in the performance of
their duties. As this Court ratiocinated in Cabello v. Sandiganbayan32 :

Besides, even on the putative assumption that the evidence against petitioner yielded a case of
malversation by negligence but the information was for intentional malversation, under the
circumstances of this case his conviction under the first mode of misappropriation would still be in
order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present
in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs
from the mode proved, the same offense of malversation is involved and conviction thereof is proper.
A possible exception would be when the mode of commission alleged in the particulars of the
indictment is so far removed from the ultimate categorization of the crime that it may be said due
process was denied by deluding the accused into an erroneous comprehension of the charge against
him. That no such prejudice was occasioned on petitioner nor was he beleaguered in his defense is
apparent from the records of this case.33 (Emphasis supplied.)

Under Article 217, paragraph 4 of the Revised Penal Code, as amended, the penalty of reclusion
temporal in its maximum period to reclusion perpetua shall be imposed if the amount involved
exceeds ₱22,000.00, in addition to fine equal to the funds malversed. Considering that neither
aggravating nor mitigating circumstance attended the crime charged, the maximum imposable
penalty shall be within the range of the medium period of reclusion temporal maximum to reclusion
perpetua, or eighteen (18) years, eight (8) months and one (1) day to twenty (20) years. Applying
the Indeterminate Sentence Law, the minimum penalty, which is one degree lower from the
maximum imposable penalty, shall be within the range of prision mayor maximum to reclusion
temporal medium, or ten (10) years and one (1) day to seventeen (17) years and four (4) months.34
The penalty imposed by the Sandiganbayan on petitioners needs therefore to be modified insofar as
the maximum penalty is concerned and is hereby reduced to seventeen (17) years and four (4)
months of reclusion temporal medium, for each count.

WHEREFORE, the petition for review on certiorari is DENIED for lack of merit. The Decision dated
October 29, 2008 in Criminal Case Nos. 24569 to 24574, 24575, 24576 to 24584, 24585 to 24592,
24593, 24594, 24595 to 24620 finding petitioners guilty beyond reasonable doubt of the crime of
Malversation of Public Funds under Article 217, paragraph 4 of the Revised Penal Code, as
amended, and the Resolution dated February 20, 2009 of the Sandiganbayan (First Division),
denying petitioners’ motion for reconsideration are AFFIRMED with MODIFICATIONS in that
petitioners are instead accordingly sentenced to suffer an indeterminate prison term of ten (10) years
and one (1) day of prision mayor maximum, as minimum, to seventeen (17) years and four (4)
months of reclusion temporal medium, as maximum, in each of the above-numbered criminal cases.

In addition to the payment of the fine ordered by the Sandiganbayan, and by way of restitution, the
petitioners are likewise ordered to pay, jointly and severally, the Republic of the Philippines through
the ARMM-Regional Treasurer, the total amount of P21,045,570.64 malversed funds as finally
determined by the COA.

In the service of their respective sentences, the petitioners shall be entitled to the benefit of the three-
fold rule as provided in Article 70 of the Revised Penal Code, as amended.

With costs against the petitioners.

SO ORDERED.