1.

BUSUEGO VS OFFICE OF THE OMBUDSMAN - CONCUBINAGE

(NOTE: hindi concubinage ang main focus dito sa case na to. Ang issue is jurisdiction ng
ombudsman and failure to implead the other party pero this is under ombudsman lang)
G.R. No. 196842 October 9, 2013
ALFREDO ROMULO A. BUSUEGO, Petitioner, vs.OFFICE OF THE OMBUDSMAN
MINDANAO and ROSA S. BUSUEGO, Respondents.
FACTS:
Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1) Concubinage under Article 334 of
the Revised Penal Code; (2) violation of Republic Act No. 9262 (Anti-Violence Against Women and
Their Children); and (3) Grave Threats under Article 282 of the Revised Penal Code, before the Office
of the Ombudsman against her husband, Alfredo, with designation Chief of Hospital, Davao Regional
Hospital, Apokon, Tagum City.
In the complaint she alleged that she was married to Alfredo and had 2 sons, Alfred and Roberto. Later,
their marriage turned sour and she unearthed photographs of, and love letters addressed to Alfredo
from, other women. Rosa confronted Alfredo who claimed ignorance of the existence of these letters
and innocence of any wrongdoing. It was also alleged that Alfredo rarely stayed at home to spend time
with his family, including the weekends.
Rosa later found an opportunity to work in New York as a nurse. She opened the idea to Alfredo but the
latter vehemently opposed. Despite such opposition she completed the requirements. Before leaving
Rose talked to Alfredo regarding the pictures and love letters. Furious with Rosa’s pressing, Alfredo
took his loaded gun and pointed it at Rosa’s right temple, threatening and taunting Rosa to attempt to
leave him and their family. Alfredo was only staved off because Rosa’s mother arrived at the couple’s
house
Due to the incident, Rosa pushed through with her plan to leave. Her children followed her to the US.
Rosa singularly reared them without support from Alfredo. Roberto later when back to Davao City to
study medicine and lived with Alfredo. Rosa returned to the Philippines for her annual vacation in
Davao City believing that Alfredo had stopped womanizing.
Rosa later learned that a certain Emy Sia (Sia) was living at their conjugal home. When Rosa asked
Alfredo, the latter explained that Sia was a nurse working at the Regional Hospital in Tagum who was
in a sorry plight as she was allegedly being raped by Rosa’s brother-in-law.
Rosa finally learned of Alfredo's extra marital relationships through her son Roberto who was living in
Davao City. Roberto executed an affidavit, corroborating his mother’s story and confirming his father’s
illicit affairs with Emy Sia and Julie de Leon. The househelpers also executed a joint affidavit
supporting Rosa's allegation. .
As expected, Alfredo, in his counter-affidavit, denied all accusations against him.
In the course thereof, the procedural issue of Rosa’s failure to implead Sia and de Leon as respondents
cropped up. Alfredo insisted that Rosa’s complaint ought to be dismissed for failure to implead his
alleged concubines as respondents.
The ombudsman scheduled a clarificatory hearing to dispose the issue of the failure to implead the
allaged concubines. It was held during the hearing that since The doctrine of res judicata does not apply
in the preliminary investigation stage. Hence, the counsel for Rosa was directed to submit to this Office
the addresses of the alleged mistresses so that they could be served with the Order directing them to file
their counter-affidavits. The Ombudsman issued a Joint Order impleading Sia and de Leon as party-
respondents in the complaint for Concubinage and directing them to submit their respective counter-
affidavits within a period of time.
Sia and de Leon did not submit their respective counter-affidavits
In the resolution of the Ombudsman, there was probable cause to indict only Alfredo and Sia of
Concubinage and directed the filing of an Information against them in the appropriate court. The rest of
the charges are dismissed for lack of merit.
Alfredo now comes before the SC on petition for certiorari alleging grave abuse of discretion in the
Ombudsman’s finding of probable cause to indict him and Sia for Concubinage.
ISSUE:
1. Whether or not there was condonation by Rosa when she alleged in the complaint that she had
known of Alfredo’s womanizing and believed him to have changed his ways
2. Whether or not there was prima facie case against Alfredo for concubinage
HELD: The SC upheld the decision of the ombudsman
1. cynosure in the question of whether the wife condoned the concubinage lies in the wife’s "line
of conduct under the assumption that she really believed [her husband] guilty of concubinage:"
Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as
stated in I Bouver's Law Dictionary, p. 585, condonation is the ‘conditional forgiveness or remission,
by a husband or wife of a matrimonial offense which the latter has committed.’
The only general rule in American jurisprudence is that any cohabitation with the guilty party, after the
commission of the offense, and with the knowledge or belief on the part of the injured party of its
commission, will amount to conclusive evidence of condonation; but this presumption may be rebutted
by evidence.
Although the foregoing speaks of condonation of concubinage as a ground for legal separation, the
holding therein applies with equal force in a prosecution for concubinage as a felony. Indeed, Rosa’s
admission was that she believed her husband had stopped womanizing, not that she had knowledge of
Alfredo’s specific acts of concubinage with Sia and de Leon, specifically keeping them in the conjugal
dwelling. This admission set against the specific acts of concubinage listed in Article 334 of the
Revised Penal Code does not amount to condonation. Their continued cohabitation as husband and
wife construed from Rosa’s annual visits to Davao City is not acquiescence to Alfredo’s relations with
his concubines.
4. Yes,
Article 334 of the Revised Penal Code lists three (3) specific acts of concubinage by a husband:
(1) keeping a mistress in the conjugal dwelling; (2) sexual intercourse, under scandalous circumstances,
with a woman who is not his wife; and (3) cohabiting with a woman who is not his wife in any other
place.
The Ombudsman found a prima facie case against Alfredo and Sia based on the testimony of Robert,
Melissa S. Diambangan and Liza S. Diambangan that Alfredo had kept Sia in the conjugal dwelling
where Sia even stayed at the conjugal room.
We further note that the presence of Sia at the Busuego household and her interim residence thereat was
not disputed nor explained. Alfredo just cavalierly declares that Sia may have stayed in the conjugal
dwelling, but never as his mistress, and Sia supposedly slept in the maids’ quarters.
OTHER ISSUES:
1. Whether or not the ombudsman was guilty of grave abuse of discretion
2. Whether or not the the ombudsman was correct in not referring the complaint to the DOJ considering
that the offense of concubinage is not committed in relation to his office as Chief of Hospital
HELD:
1. no, The Ombudsman has full discretionary authority in the determination of probable cause
during a preliminary investigation.10 This is the reason why judicial review of the resolution of the
Ombudsman in the exercise of its power and duty to investigate and prosecute felonies and/or offenses
of public officers is limited to a determination of whether there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction. Courts are not empowered to substitute their judgment for
that of the Ombudsman
Under the rules of procedure of the Ombudsman, that if a respondent desires any matter to be clarified,
the particularization of such may be done at the time of the clarificatory questioning. If , after the filing
requisite affidavits and their supporting evidences, there are facts material to the case If, after the filing
of the requisite affidavits and their supporting evidences, there are facts material to the case which the
investigating officer may need to be clarified on, he may conduct a clarificatory hearing during which
the parties shall be afforded the opportunity to be present but without the right to examine or cross-
examine the witness being questioned.
It was explained in the said hearing the need to implead the alleged concubines in this case pursuant to
Article 344 of the Revised Penal Code and to obviate the proceedings, Rosa was directed to submit the
addresses of the alleged concubines. Busuego’s position that the said short cut procedure would delay
the proceedings is misplaced. If the case will be dismissed based on procedural infirmity, Rosa could
still amend her complaint and re-file this case since the doctrine of res judicata does not apply in the
preliminary investigation stage of the proceedings.
The Ombudsman merely facilitated the amendment of the complaint to cure the defect pointed out by
Alfredo. We agree with the Ombudsman that it would be superfluous to dismiss the complaint when
amendment thereof is allowed by its Rules of Procedure15 and the Rules of Court.

2. The Ombudsman’s primary jurisdiction, albeit concurrent with the DOJ, to conduct preliminary
investigation of crimes involving public officers, without regard to its commission in relation to
office, had long been settled
DOJ and the Ombudsman have concurrent jurisdiction to investigate offenses involving public officers
or employees. Nonetheless, we pointed out that the Ombudsman, in the exercise of its primary
jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any stage, from any
investigating agency of the government, the investigation of such cases. Plainly, applying that ruling in
this case, the Ombudsman has primary jurisdiction, albeit concurrent with the DOJ, over Rosa’s
complaint, and after choosing to exercise such jurisdiction, need not defer to the dictates of a
respondent in a complaint, such as Alfredo. In other words, the Ombudsman may exercise jurisdiction
to the exclusion of the DOJ.
 2. TENENGGEE VS PEOPLE
G.R. No. 179448 June 26, 2013
CARLOS L. TANENGGEE, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent.
FACTS:
The accused / petitioner was the Manager of the COMMERCIO BRANCH OF METROBANK located
at the New Divisoria Market Bldg., Divisoria, Manila. The information was filed by METROPOLITAN
BANK & TRUST CO. (METROBANK), represented by its Legal officer, Atty. Ferdinand R. Aguirre.
Five separate informations of estafa through falsification of commercial documents were filed against
petitioner. It was alleged that the accused took advantage of his position by preparing and filling up of a
Metrobank Promissory Note with the amount of P16M, causing to be typed at the bottom of said
document the name “ROMEO TAN”, the forging of the signature of Romeo Tan and affixing his own
signature at the left bottom thereof purportedly to show that he witnessed the alleged signing of
Romeo Tan. After the preparation of said promissory note, the accused cause the preparation and filling
up of a Metrobanks Check, a commercial document, as proceeds of a purported loan obtain by Romeo
Tan. The accused later directed a bank cashier to also affix his signature on said check as authorized
signatories and finally forging or causing to be affixed the four signature of Romeo Tan at the bank of
the check. The accused through his acts made it appear as if Romeo Tan was present when the above
documents were being made but in truth and in fact, said accused knew well that Romeo Tan did not
acquire a loan and did not participate in the making of the promissory note and the metrobanks cashiers
check
For his defense, appellant Carlos Lo Tanenggee testified that he is a holder of a Masters degree from
the Asian Institute of Management, and was the Branch Manager of Metrobank Commercio Branch
from 1994 until he was charged in 1998 [with] the above-named offense. He was with Metrobank for
nine (9) years starting as assistant manager of Metrobank Dasmariñas Branch, Binondo, Manila. As
manager, he oversaw the day to day operations of the branch, solicited accounts and processed loans,
among others.
As a valued client, Romeo Tan was granted a credit line for forty million pesos (₱40,000,000.00) by
Metrobank. Tan availed of his standing credit line (through promissory notes) through 5 different
promissory note, and the P16M promissory alleged here was the 4 th promissory note. On all the
promissory note, Romeo Tan personally went to the bank except for the 4 th promissory note which he
only gave his instruction through the telephone. The promissory note and the check was prepared by
sending said documents to Tan through the bank’s messenger to Tan’s office, which was located across
the street.
Metrobank Auditors conducted an audit for Commercia Branch for more than a week. Thereafter
appelant was asked to report to the Head Office on the following day. When appellant arrived he was
surprised to see 7 other people present (2 senior branch office, 2 bank lawyers, 2 policeman and a
representative of the internal affairs unit of the bank). Appellant claimed that he was forced to sign a
paper in connection with the audit and was not offered an explanation.
RTC: consolidated the case. Petitioner was found guilty of the crimes charged
CA: affimed the decision of the RTC. The CA also denied the motion for reconsideration of the
petitioner.
ISSUE:
Whether or not Tanenggee was guilty of estafa
HELD:
Yes, falsification was used as a necessary means to commit estafa
Elements of falsification of commercial documents established. Falsification of documents under
paragraph 1, Article 172 in relation to Article 171 of the Revised Penal Code (RPC) refers to
falsification by a private individual or a public officer or employee, who did not take advantage of his
official position, of public, private or commercial document. The elements of falsification of
documents under paragraph 1, Article 172 of the RPC are:
(1) that the offender is a private individual or a public officer or employee who did not take
advantage of his official position;
(2) that he committed any of the acts of falsification enumerated in Article 171 of the RPC;33 and,
(3) that the falsification was committed in a public, official or commercial document.
All the above-mentioned elements were established in this case. First, petitioner is a private individual.
Second, the acts of falsification consisted in petitioner’s (1) counterfeiting or imitating the handwriting
or signature of Tan and causing it to appear that the same is true and genuine in all respects; and (2)
causing it to appear that Tan has participated in an act or proceeding when he did not in fact so
participate. Third, the falsification was committed in promissory notes and checks which are
commercial documents. Commercial documents are, in general, documents or instruments which are
"used by merchants or businessmen to promote or facilitate trade or credit transactions."
Falsification as a necessary means to commit estafa.
In Domingo v. People,The falsification of a public, official, or commercial document may be a means
of committing estafa, because before the falsified document is actually utilized to defraud another, the
crime of falsification has already been consummated, damage or intent to cause damage not being an
element of the crime of falsification of public, official or commercial document. In other words, the
crime of falsification has already existed. Actually utilizing that falsified public, official or commercial
document to defraud another is estafa. But the damage is caused by the commission of estafa, not by
the falsification of the document. Therefore, the falsification of the public, official or commercial
document is only a necessary means to commit estafa.
"Estafa is generally committed when
(a) the accused defrauded another by abuse of confidence, or by means of deceit, and
(b) the offended party or a third party suffered damage or prejudice capable of pecuniary estimation."37
Deceit is the false representation of a matter of fact, whether by words or conduct, by false or
misleading allegations, or by concealment of that which should have been disclosed which deceives or
is intended to deceive another so that he shall act upon it to his legal injury."38
The elements of estafa obtain in this case. By falsely representing that Tan requested him to process
purported loans on the latter’s behalf, petitioner counterfeited or imitated the signature of Tan in the
cashier’s checks. Through these, petitioner succeeded in withdrawing money from the bank. Once in
possession of the amount, petitioner thereafter invested the same in Eurocan Future Commodities.
Clearly, petitioner employed deceit in order to take hold of the money, misappropriated and converted it
to his own personal use and benefit, and these resulted to the damage and prejudice of the bank in the
amount of about ₱43 million.
The Proper Imposable Penalty pursuant to Article 48 of the Code, the penalty to be imposed in such
case should be that corresponding to the most serious crime, the same to be applied in its maximum
period. The applicable penalty therefore is for the crime of estafa, being the more serious offense than
falsification.

3. ONG VS PEOPLE
G.R. No. 190475 April 10, 2013
JAIME ONG y ONG, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent.
FACTS:
(FRANCISCO AZAJAR Y LEE ) Private complainant was the owner of 44 Firestone truck tires which
he acquired from Philtread Tire and Rubber Corporation for the total amount of ₱223,401.81. The
acquisition was evidenced by Sales Invoices and an inventory list acknowledging receipt of the tires
specifically describing it by their serial numbers. Said complainant also marked the tires using a piece
of chalk before storing them inside the warehouse in Sucat Paranaque. The warehouse is owned by
private complainants relative Teody Guano and Jose Cabal as Guano's caretaker. Out of the 44 tires, 6
were sold later on and the 38 remains inside the warehouse.
Private Complainant later learned from the caretaker that all 38 tires were stolen from the warehouse,
the gate which was forcibly opened. The robbery was reported to the Souther Police District at Fort
Bonifacio.
Pending the police investigation, private complainant canvassed from numerous business
establishments in an attempt to locate the stolen tires. Private complainant chanced upon Jong's
Marketing, a store selling tires in Paco, Manila, owned and operated by appellant. The private
complainant inquired if he was selling tires which was the same type as those stolen, in which the
appellant 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 then left the store and reported the matter to Chief
Inspector Mariano Fegarido of the Southern Police District.
Based on the report, the Southern Police District conducted a buy bust operation on Jong's Marketing
Store. the buy-bust team was able to confiscate thirteen (13) tires, including the one initially bought by
poseur-buyer. The tires were confirmed by private complainant as stolen from his warehouse.5
Ong, appellant, 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 said sale was issued a Sales Invoice by on
Ramon Go and with the letterhead Gold Link Hardware & General Merchandise (Gold Link).
The RTC: 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.
CA: On appeal the Ca affirmed the RTC's finding with modification by reducing the minimum penalty
ISSUE:
Whether or not Ong is liable for fencing
HELD
Yes
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 are
(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
Elements of fencing is present in this case:
1. the owner of the tires, whose testimony was corroborated by the caretaker, testified that the
crime of robber was committed. Private Complainant was also able to prove ownership through
the Sales Invoice and Inventory List. 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
2. 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
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. 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.
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.
4. 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.