G.R. No.

L-5272 March 19, 1910

THE UNITED STATES, plaintiff-appellee,
vs.
AH CHONG, defendant-appellant.
CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited to the testimony
of the accused himself, because from the very nature of these facts and from the circumstances
surrounding the incident upon which these proceedings rest, no other evidence as to these facts
was available either to the prosecution or to the defense. We think, however, that, giving the
accused the benefit of the doubt as to the weight of the evidence touching those details of the
incident as to which there can be said to be any doubt, the following statement of the material
facts disclose by the record may be taken to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc
Kinley, Rizal Province, and at the same place Pascual Gualberto, deceased, was employed as a
house boy or muchacho. "Officers' quarters No. 27" as a detached house situates some 40
meters from the nearest building, and in August, 19087, was occupied solely as an officers'
mess or club. No one slept in the house except the two servants, who jointly occupied a small
room toward the rear of the building, the door of which opened upon a narrow porch running
along the side of the building, by which communication was had with the other part of the
house. This porch was covered by a heavy growth of vines for its entire length and height. The
door of the room was not furnished with a permanent bolt or lock, and occupants, as a measure
of security, had attached a small hook or catch on the inside of the door, and were in the habit
of reinforcing this somewhat insecure means of fastening the door by placing against it a chair.
In the room there was but one small window, which, like the door, opened on the porch. Aside
from the door and window, there were no other openings of any kind in the room.

On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the
night, was suddenly awakened by some trying to force open the door of the room. He sat up in
bed and called out twice, "Who is there?" He heard no answer and was convinced by the noise
at the door that it was being pushed open by someone bent upon forcing his way into the room.
Due to the heavy growth of vines along the front of the porch, the room was very dark, and the
defendant, fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If
you enter the room, I will kill you." At that moment he was struck just above the knee by the
edge of the chair which had been placed against the door. In the darkness and confusion the
defendant thought that the blow had been inflicted by the person who had forced the door open,
whom he supposed to be a burglar, though in the light of after events, it is probable that the
chair was merely thrown back into the room by the sudden opening of the door against which it
rested. Seizing a common kitchen knife which he kept under his pillow, the defendant struck
out wildly at the intruder who, it afterwards turned out, was his roommate, Pascual. Pascual ran
out upon the porch and fell down on the steps in a desperately wounded condition, followed by
the defendant, who immediately recognized him in the moonlight. Seeing that Pascual was
wounded, he called to his employers who slept in the next house, No. 28, and ran back to his
room to secure bandages to bind up Pascual's wounds.

There had been several robberies in Fort McKinley not long prior to the date of the incident
just described, one of which took place in a house in which the defendant was employed as
cook; and as defendant alleges, it was because of these repeated robberies he kept a knife under
his pillow for his personal protection.

The deceased and the accused, who roomed together and who appear to have on friendly and
amicable terms prior to the fatal incident, had an understanding that when either returned at
night, he should knock at the door and acquiant his companion with his identity. Pascual had
left the house early in the evening and gone for a walk with his friends, Celestino Quiambao
and Mariano Ibañez, servants employed at officers' quarters No. 28, the nearest house to the
mess hall. The three returned from their walk at about 10 o'clock, and Celestino and Mariano
stopped at their room at No. 28, Pascual going on to his room at No. 27. A few moments after
the party separated, Celestino and Mariano heard cries for assistance and upon returning to No.
27 found Pascual sitting on the back steps fatally wounded in the stomach, whereupon one of
them ran back to No. 28 and called Liuetenants Jacobs and Healy, who immediately went to
the aid of the wounded man.

The defendant then and there admitted that he had stabbed his roommate, but said that he did it
under the impression that Pascual was "a ladron" because he forced open the door of their
sleeping room, despite defendant's warnings.

No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it
be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to
frightened him by forcing his way into the room, refusing to give his name or say who he was, in
order to make Ah Chong believe that he was being attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital,
where he died from the effects of the wound on the following day.

The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of
simple homicide, with extenuating circumstances, and sentenced to six years and one day presidio
mayor, the minimum penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto,
but insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his
lawful right of self-defense.

Article 8 of the Penal Code provides that —

The following are not delinquent and are therefore exempt from criminal liability:

xxx xxx xxx

4 He who acts in defense of his person or rights, provided there are the following attendant
circumstances:

(1) Illegal aggression.

(2) Reasonable necessity of the means employed to prevent or repel it.

(3) Lack of sufficient provocation on the part of the person defending himself.

Under these provisions we think that there can be no doubt that defendant would be entitle to
complete exception from criminal liability for the death of the victim of his fatal blow, if the intruder
who forced open the door of his room had been in fact a dangerous thief or "ladron," as the defendant
believed him to be. No one, under such circumstances, would doubt the right of the defendant to resist
and repel such an intrusion, and the thief having forced open the door notwithstanding defendant's
thrice-repeated warning to desist, and his threat that he would kill the intruder if he persisted in his
attempt, it will not be questioned that in the darkness of the night, in a small room, with no means of
escape, with the thief advancing upon him despite his warnings defendant would have been wholly
justified in using any available weapon to defend himself from such an assault, and in striking
promptly, without waiting for the thief to discover his whereabouts and deliver the first blow.

But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the
defendant nor his property nor any of the property under his charge was in real danger at the time
when he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief or
"ladron" as defendant believed he was repelling and resisting, and that there was no real "necessity"
for the use of the knife to defend his person or his property or the property under his charge.

The question then squarely presents it self, whether in this jurisdiction one can be held criminally
responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt
from criminal liability if the facts were as he supposed them to be, but which would constitute the
crime of homicide or assassination if the actor had known the true state of the facts at the time when
he committed the act. To this question we think there can be but one answer, and we hold that under
such circumstances there is no criminal liability, provided always that the alleged ignorance or
mistake or fact was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to
negative a particular intent which under the law is a necessary ingredient of the offense charged (e.g.,
in larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the presumption of intent,"
and works an acquittal; except in those cases where the circumstances demand a conviction under the
penal provisions touching criminal negligence; and in cases where, under the provisions of article 1 of
the Penal Code one voluntarily committing a crime or misdeamor incurs criminal liability for any
wrongful act committed by him, even though it be different from that which he intended to commit.
(Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases cited;
Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs.People, 32 N.Y., 509;
Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)

The general proposition thus stated hardly admits of discussion, and the only question worthy of
consideration is whether malice or criminal intent is an essential element or ingredient of the crimes of
homicide and assassination as defined and penalized in the Penal Code. It has been said that since the
definitions there given of these as well as most other crimes and offense therein defined, do not
specifically and expressly declare that the acts constituting the crime or offense must be committed
with malice or with criminal intent in order that the actor may be held criminally liable, the
commission of the acts set out in the various definitions subjects the actor to the penalties described
therein, unless it appears that he is exempted from liability under one or other of the express
provisions of article 8 of the code, which treats of exemption. But while it is true that contrary to the
general rule of legislative enactment in the United States, the definitions of crimes and offenses as set
out in the Penal Code rarely contain provisions expressly declaring that malice or criminal intent is an
essential ingredient of the crime, nevertheless, the general provisions of article 1 of the code clearly
indicate that malice, or criminal intent in some form, is an essential requisite of all crimes and offense
therein defined, in the absence of express provisions modifying the general rule, such as are those
touching liability resulting from acts negligently or imprudently committed, and acts done by one
voluntarily committing a crime or misdemeanor, where the act committed is different from that which
he intended to commit. And it is to be observed that even these exceptions are more apparent than
real, for "There is little distinction, except in degree, between a will to do a wrongful thing and
indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies
the place of the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again,
"There is so little difference between a disposition to do a great harm and a disposition to do harm that
one of them may very well be looked upon as the measure of the other. Since, therefore, the guilt of a
crime consists in the disposition to do harm, which the criminal shows by committing it, and since this
disposition is greater or less in proportion to the harm which is done by the crime, the consequence is
that the guilt of the crime follows the same proportion; it is greater or less according as the crime in its
own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated, the
thing done, having proceeded from a corrupt mid, is to be viewed the same whether the corruption
was of one particular form or another.

Article 1 of the Penal Code is as follows:

Crimes or misdemeanors are voluntary acts and ommissions punished by law.

Acts and omissions punished by law are always presumed to be voluntarily unless the contrary shall
appear.
An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though
the wrongful act committed be different from that which he had intended to commit.

The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this
article, say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that
without intention (intention to do wrong or criminal intention) there can be no crime; and that the
word "voluntary" implies and includes the words "con malicia," which were expressly set out in the
definition of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as
Pacheco insists, their use in the former code was redundant, being implied and included in the word
"voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said to exempt
from criminal responsibility when the act which was actually intended to be done was in itself a
lawful one, and in the absence of negligence or imprudence, nevertheless admits and recognizes in his
discussion of the provisions of this article of the code that in general without intention there can be no
crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by Viada are
more apparent than real.

Silvela, in discussing the doctrine herein laid down, says:

In fact, it is sufficient to remember the first article, which declared that where there is no intention
there is no crime . . . in order to affirm, without fear of mistake, that under our code there can be no
crime if there is no act, an act which must fall within the sphere of ethics if there is no moral injury.
(Vol. 2, the Criminal Law, folio 169.)

And to the same effect are various decisions of the supreme court of Spain, as, for example in its
sentence of May 31, 1882, in which it made use of the following language:

It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed
from the operation of the will and an intent to cause the injury which may be the object of the crime.

And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be
the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in
the parochial church, there can be no crime because of the lack of the necessary element or criminal
intention, which characterizes every action or ommission punished by law; nor is he guilty of criminal
negligence."

And to the same effect in its sentence of December 30, 1896, it made use of the following language:

. . . Considering that the moral element of the crime, that is, intent or malice or their absence in the
commission of an act defined and punished by law as criminal, is not a necessary question of fact
submitted to the exclusive judgment and decision of the trial court.

That the author of the Penal Code deemed criminal intent or malice to be an essential element of the
various crimes and misdemeanors therein defined becomes clear also from an examination of the
provisions of article 568, which are as follows:

He who shall execute through reckless negligence an act that, if done with malice, would constitute a
grave crime, shall be punished with the penalty of arresto mayor in its maximum degree, to prision
correccional in its minimum degrees if it shall constitute a less grave crime.

He who in violation of the regulations shall commit a crime through simple imprudence or negligence
shall incur the penalty of arresto mayor in its medium and maximum degrees.

In the application of these penalties the courts shall proceed according to their discretion, without
being subject to the rules prescribed in article 81.
The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to
or less than those contained in the first paragraph thereof, in which case the courts shall apply the next
one thereto in the degree which they may consider proper.

The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent,"
and the direct inference from its provisions is that the commission of the acts contemplated therein, in
the absence of malice (criminal intent), negligence, and imprudence, does not impose any criminal
liability on the actor.

The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning
the word "willful" as used in English and American statute to designate a form of criminal intent. It
has been said that while the word "willful" sometimes means little more than intentionally or
designedly, yet it is more frequently understood to extent a little further and approximate the idea of
the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case
it was said to mean, as employed in a statute in contemplation, "wantonly" or "causelessly;" in
another, "without reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that
ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other words,
corruptly." In English and the American statutes defining crimes "malice," "malicious," "maliciously,"
and "malice aforethought" are words indicating intent, more purely technical than "willful" or
willfully," but "the difference between them is not great;" the word "malice" not often being
understood to require general malevolence toward a particular individual, and signifying rather the
intent from our legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases
cited.)

But even in the absence of express words in a statute, setting out a condition in the definition of a
crime that it be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in
one of the various modes generally construed to imply a criminal intent, we think that reasoning from
general principles it will always be found that with the rare exceptions hereinafter mentioned, to
constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position with
numerous citations from the decided cases, thus forcely present this doctrine:

In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. In
controversies between private parties the quo animo with which a thing was done is sometimes
important, not always; but crime proceeds only from a criminal mind. So that —

There can be no crime, large or small, without an evil mind. In other words, punishment is the
sentence of wickedness, without which it can not be. And neither in philosophical speculation nor in
religious or mortal sentiment would any people in any age allow that a man should be deemed guilty
unless his mind was so. It is therefore a principle of our legal system, as probably it is of every other,
that the essence of an offense is the wrongful intent, without which it can not exists. We find this
doctrine confirmed by —

Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this subject.
It consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea, "the act
itself does not make man guilty unless his intention were so;" Actus me incito factus non est meus
actus, "an act done by me against my will is not my act;" and others of the like sort. In this, as just
said, criminal jurisprudence differs from civil. So also —

Moral science and moral sentiment teach the same thing. "By reference to the intention, we inculpate
or exculpate others or ourselves without any respect to the happiness or misery actually produced. Let
the result of an action be what it may, we hold a man guilty simply on the ground of intention; or, on
the dame ground, we hold him innocent." The calm judgment of mankind keeps this doctrine among
its jewels. In times of excitement, when vengeance takes the place of justice, every guard around the
innocent is cast down. But with the return of reason comes the public voice that where the mind is
pure, he who differs in act from his neighbors does not offend. And —

In the spontaneous judgment which springs from the nature given by God to man, no one deems
another to deserve punishment for what he did from an upright mind, destitute of every form of evil.
And whenever a person is made to suffer a punishment which the community deems not his due, so
far from its placing an evil mark upon him, it elevates him to the seat of the martyr. Even infancy
itself spontaneously pleads the want of bad intent in justification of what has the appearance of wrong,
with the utmost confidence that the plea, if its truth is credited, will be accepted as good. Now these
facts are only the voice of nature uttering one of her immutable truths. It is, then, the doctrine of the
law, superior to all other doctrines, because first in nature from which the law itself proceeds, that no
man is to be punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1,
secs. 286 to 290.)

Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of
abstract justice result from the adoption of the arbitrary rule that Ignorantia juris non
excusat ("Ignorance of the law excuses no man"), without which justice could not be administered in
our tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the
power of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make
their commission criminal without regard to the intent of the doer. Without discussing these
exceptional cases at length, it is sufficient here to say that the courts have always held that unless the
intention of the lawmaker to make the commission of certain acts criminal without regard to the intent
of the doer is clear and beyond question the statute will not be so construed (cases cited in Cyc., vol.
12, p. 158, notes 76 and 77); and the rule that ignorance of the law excuses no man has been said not
to be a real departure from the law's fundamental principle that crime exists only where the mind is at
fault, because "the evil purpose need not be to break the law, and if suffices if it is simply to do the
thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.)

But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring
mistake in fact to be dealt with otherwise that in strict accord with the principles of abstract justice.
On the contrary, the maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is,
in all cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as
shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the
actor from criminal liability provided always there is no fault or negligence on his part; and as laid
down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear to
him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342;
Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41;
P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to
whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be
determined by the circumstances as they appeared to him at the time when the mistake was made, and
the effect which the surrounding circumstances might reasonably be expected to have on his mind, in
forming the intent, criminal or other wise, upon which he acted.

If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts
which will justify a killing — or, in terms more nicely in accord with the principles on which the rule
is founded, if without fault or carelessness he does believe them — he is legally guiltless of the
homicide; though he mistook the facts, and so the life of an innocent person is unfortunately
extinguished. In other words, and with reference to the right of self-defense and the not quite
harmonious authorities, it is the doctrine of reason and sufficiently sustained in adjudication, that
notwithstanding some decisions apparently adverse, whenever a man undertakes self-defense, he is
justified in acting on the facts as they appear to him. If, without fault or carelessness, he is misled
concerning them, and defends himself correctly according to what he thus supposes the facts to be the
law will not punish him though they are in truth otherwise, and he was really no occassion for the
extreme measures. (Bishop's New Criminal Law, sec. 305, and large array of cases there cited.)

The common illustration in the American and English textbooks of the application of this rule is the
case where a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his
friends in a spirit of mischief, and with leveled pistol demands his money or his life, but is killed by
his friend under the mistaken belief that the attack is a real one, that the pistol leveled at his head is
loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one
will doubt that if the facts were such as the slayer believed them to be he would be innocent of the
commission of any crime and wholly exempt from criminal liability, although if he knew the real state
of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of
homicide or assassination. Under such circumstances, proof of his innocent mistake of the facts
overcomes the presumption of malice or criminal intent, and (since malice or criminal intent is a
necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes at
the same time the presumption established in article 1 of the code, that the "act punished by law" was
committed "voluntarily."

Parson, C.J., in the Massachusetts court, once said:

If the party killing had reasonable grounds for believing that the person slain had a felonious design
against him, and under that supposition killed him, although it should afterwards appear that there was
no such design, it will not be murder, but it will be either manslaughter or excusable homicide,
according to the degree of caution used and the probable grounds of such belief. (Charge to the grand
jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.)

In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:

A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched arms
and a pistol in his hand, and using violent menaces against his life as he advances. Having approached
near enough in the same attitude, A, who has a club in his hand, strikes B over the head before or at
the instant the pistol is discharged; and of the wound B dies. It turns out the pistol was loaded
with powder only, and that the real design of B was only to terrify A. Will any reasonable man say
that A is more criminal that he would have been if there had been a bullet in the pistol? Those who
hold such doctrine must require that a man so attacked must, before he strikes the assailant, stop and
ascertain how the pistol is loaded — a doctrine which would entirely take away the essential right of
self-defense. And when it is considered that the jury who try the cause, and not the party killing, are to
judge of the reasonable grounds of his apprehension, no danger can be supposed to flow from this
principle. (Lloyd's Rep., p. 160.)

To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which
are here set out in full because the facts are somewhat analogous to those in the case at bar.

QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only
of his wife, without other light than reflected from the fire, and that the man with his back to the door
was attending to the fire, there suddenly entered a person whom he did not see or know, who struck
him one or two blows, producing a contusion on the shoulder, because of which he turned, seized the
person and took from his the stick with which he had undoubtedly been struck, and gave the unknown
person a blow, knocking him to the floor, and afterwards striking him another blow on the head,
leaving the unknown lying on the floor, and left the house. It turned out the unknown person was his
father-in-law, to whom he rendered assistance as soon as he learned his identity, and who died in
about six days in consequence of cerebral congestion resulting from the blow. The accused, who
confessed the facts, had always sustained pleasant relations with his father-in-law, whom he visited
during his sickness, demonstrating great grief over the occurrence. Shall he be considered free from
criminal responsibility, as having acted in self-defense, with all the circumstances related in paragraph
4, article 8, of the Penal Code? The criminal branch of the Audiencia of Valladolid found that he was
an illegal aggressor, without sufficient provocation, and that there did not exists rational necessity for
the employment of the force used, and in accordance with articles 419 and 87 of the Penal Code
condemned him to twenty months of imprisonment, with accessory penalty and costs. Upon appeal by
the accused, he was acquitted by the supreme court, under the following sentence: "Considering, from
the facts found by the sentence to have been proven, that the accused was surprised from behind, at
night, in his house beside his wife who was nursing her child, was attacked, struck, and beaten,
without being able to distinguish with which they might have executed their criminal intent, because
of the there was no other than fire light in the room, and considering that in such a situation and when
the acts executed demonstrated that they might endanger his existence, and possibly that of his wife
and child, more especially because his assailant was unknown, he should have defended himself, and
in doing so with the same stick with which he was attacked, he did not exceed the limits of self-
defense, nor did he use means which were not rationally necessary, particularly because the
instrument with which he killed was the one which he took from his assailant, and was capable of
producing death, and in the darkness of the house and the consteration which naturally resulted from
such strong aggression, it was not given him to known or distinguish whether there was one or more
assailants, nor the arms which they might bear, not that which they might accomplish, and considering
that the lower court did not find from the accepted facts that there existed rational necessity for the
means employed, and that it did not apply paragraph 4 of article 8 of the Penal Code, it erred, etc."
(Sentence of supreme court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .

QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the city,
upon arriving at a point where there was no light, heard the voice of a man, at a distance of some 8 paces,
saying: "Face down, hand over you money!" because of which, and almost at the same money, he fired two
shots from his pistol, distinguishing immediately the voice of one of his friends (who had before simulated a
different voice) saying, "Oh! they have killed me," and hastening to his assistance, finding the body lying
upon the ground, he cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been
the victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he retired from the
place. Shall he be declared exempt in toto from responsibility as the author of this homicide, as having acted
in just self-defense under the circumstances defined in paragraph 4, article 8, Penal Code? The criminal branch
of the Audiencia of Malaga did not so find, but only found in favor of the accused two of the requisites of said
article, but not that of the reasonableness of the means employed to repel the attack, and, therefore,
condemned the accused to eight years and one day of prison mayor, etc. The supreme court acquitted the
accused on his appeal from this sentence, holding that the accused was acting under a justifiable and excusable
mistake of fact as to the identity of the person calling to him, and that under the circumstances, the darkness
and remoteness, etc., the means employed were rational and the shooting justifiable. (Sentence supreme court,
March 17, 1885.) (Viada, Vol. I, p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone thrown
against his window — at this, he puts his head out of the window and inquires what is wanted, and is
answered "the delivery of all of his money, otherwise his house would be burned" — because of which, and
observing in an alley adjacent to the mill four individuals, one of whom addressed him with blasphemy, he
fired his pistol at one the men, who, on the next morning was found dead on the same spot. Shall this man be
declared exempt from criminal responsibility as having acted in just self-defense with all of the requisites of
law? The criminal branch of the requisites of law? The criminal branch of the Audiencia of Zaragoza finds that
there existed in favor of the accused a majority of the requisites to exempt him from criminal responsibility,
but not that of reasonable necessity for the means, employed, and condemned the accused to twelve months
of prision correctional for the homicide committed. Upon appeal, the supreme court acquitted the condemned,
finding that the accused, in firing at the malefactors, who attack his mill at night in a remote spot by
threatening robbery and incendiarism, was acting in just self-defense of his person, property, and family.
(Sentence of May 23, 1877). (I Viada, p. 128.)

A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman
struck the fatal blow alleged in the information in the firm belief that the intruder who forced open the door of
his sleeping room was a thief, from whose assault he was in imminent peril, both of his life and of his property
and of the property committed to his charge; that in view of all the circumstances, as they must have presented
themselves to the defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief
that he was doing no more than exercising his legitimate right of self-defense; that had the facts been as he
believed them to be he would have been wholly exempt from criminal liability on account of his act; and that
he can not be said to have been guilty of negligence or recklessness or even carelessness in falling into his
mistake as to the facts, or in the means adopted by him to defend himself from the imminent danger which he
believe threatened his person and his property and the property under his charge.

The judgment of conviction and the sentence imposed by the trial court should be reversed, and the defendant
acquitted of the crime with which he is charged and his bail bond exonerated, with the costs of both
instance de oficio. So ordered.

G.R. No. L-47722 July 27, 1943

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.
Antonio Z. Oanis in his own behalf.
Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibañez and Assistant Attorney Torres for appellee.
MORAN, J.:

Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto
Galanta, chief of police of Cabanatuan and corporal of the Philippine Constabulary, respectively,
were, after due trial, found guilty by the lower court of homicide through reckless imprudence and
were sentenced each to an indeterminate penalty of from one year and six months to two years and
two months of prison correccional and to indemnify jointly and severally the heirs of the deceased in
the amount of P1,000. Defendants appealed separately from this judgment.

In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial
Inspector at Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor:
"Information received escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get
him dead or alive." Captain Monsod accordingly called for his first sergeant and asked that he be
given four men. Defendant corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio Serna
and D. Fernandez, upon order of their sergeant, reported at the office of the Provincial Inspector
where they were shown a copy of the above-quoted telegram and a newspaper clipping containing a
picture of Balagtas. They were instructed to arrest Balagtas and, if overpowered, to follow the
instruction contained in the telegram. The same instruction was given to the chief of police Oanis who
was likewise called by the Provincial Inspector. When the chief of police was asked whether he knew
one Irene, a bailarina, he answered that he knew one of loose morals of the same name. Upon request
of the Provincial Inspector, the chief of police tried to locate some of his men to guide the
constabulary soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone of them he
volunteered to go with the party. The Provincial Inspector divided the party into two groups with
defendants Oanis and Galanta, and private Fernandez taking the route to Rizal street leading to the
house where Irene was supposedly living. When this group arrived at Irene's house, Oanis approached
one Brigida Mallare, who was then stripping banana stalks, and asked her where Irene's room was.
Brigida indicated the place and upon further inquiry also said that Irene was sleeping with her
paramour. Brigida trembling, immediately returned to her own room which was very near that
occupied by Irene and her paramour. Defendants Oanis and Galanta then went to the room of Irene,
and an seeing a man sleeping with his back towards the door where they were, simultaneously or
successively fired at him with their .32 and .45 caliber revolvers. Awakened by the gunshots, Irene
saw her paramour already wounded, and looking at the door where the shots came, she saw the
defendants still firing at him. Shocked by the entire scene. Irene fainted; it turned out later that the
person shot and killed was not the notorious criminal Anselmo Balagtas but a peaceful and innocent
citizen named Serapio Tecson, Irene's paramour. The Provincial Inspector, informed of the killing,
repaired to the scene and when he asked as to who killed the deceased. Galanta, referring to himself
and to Oanis, answered: "We two, sir." The corpse was thereafter brought to the provincial hospital
and upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds inflicted by a .32 and a .45
caliber revolvers were found on Tecson's body which caused his death.

These are the facts as found by the trial court and fully supported by the evidence, particularly by the
testimony of Irene Requinea. Appellants gave, however, a different version of the tragedy. According
to Appellant Galanta, when he and chief of police Oanis arrived at the house, the latter asked Brigida
where Irene's room was. Brigida indicated the place, and upon further inquiry as to the whereabouts of
Anselmo Balagtas, she said that he too was sleeping in the same room. Oanis went to the room thus
indicated and upon opening the curtain covering the door, he said: "If you are Balagtas, stand up."
Tecson, the supposed Balagtas, and Irene woke up and as the former was about to sit up in bed. Oanis
fired at him. Wounded, Tecson leaned towards the door, and Oanis receded and shouted: "That is
Balagtas." Galanta then fired at Tecson.

On the other hand, Oanis testified that after he had opened the curtain covering the door and after
having said, "if you are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas,
while the latter was still lying on bed, and continued firing until he had exhausted his bullets: that it
was only thereafter that he, Oanis, entered the door and upon seeing the supposed Balagtas, who was
then apparently watching and picking up something from the floor, he fired at him.

The trial court refused to believe the appellants. Their testimonies are certainly incredible not only
because they are vitiated by a natural urge to exculpate themselves of the crime, but also because they
are materially contradictory. Oasis averred that be fired at Tecson when the latter was apparently
watching somebody in an attitudes of picking up something from the floor; on the other hand, Galanta
testified that Oasis shot Tecson while the latter was about to sit up in bed immediately after he was
awakened by a noise. Galanta testified that he fired at Tecson, the supposed Balagtas, when the latter
was rushing at him. But Oanis assured that when Galanta shot Tecson, the latter was still lying on bed.
It is apparent from these contradictions that when each of the appellants tries to exculpate himself of
the crime charged, he is at once belied by the other; but their mutual incriminating averments dovetail
with and corroborate substantially, the testimony of Irene Requinea. It should be recalled that,
according to Requinea, Tecson was still sleeping in bed when he was shot to death by appellants. And
this, to a certain extent, is confirmed by both appellants themselves in their mutual recriminations.
According, to Galanta, Oanis shot Tecson when the latter was still in bed about to sit up just after he
was awakened by a noise. And Oanis assured that when Galanta shot Tecson, the latter was still lying
in bed. Thus corroborated, and considering that the trial court had the opportunity to observe her
demeanor on the stand, we believe and so hold that no error was committed in accepting her testimony
and in rejecting the exculpatory pretensions of the two appellants. Furthermore, a careful examination
of Irene's testimony will show not only that her version of the tragedy is not concocted but that it
contains all indicia of veracity. In her cross-examination, even misleading questions had been put
which were unsuccessful, the witness having stuck to the truth in every detail of the occurrence. Under
these circumstances, we do not feel ourselves justified in disturbing the findings of fact made by the
trial court.

The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back
towards the door, Oanis and Galanta, on sight, fired at him simultaneously or successively, believing
him to be Anselmo Balagtas but without having made previously any reasonable inquiry as to his
identity. And the question is whether or not they may, upon such fact, be held responsible for the
death thus caused to Tecson. It is contended that, as appellants acted in innocent mistake of fact in the
honest performance of their official duties, both of them believing that Tecson was Balagtas, they
incur no criminal liability. Sustaining this theory in part, the lower court held and so declared them
guilty of the crime of homicide through reckless imprudence. We are of the opinion, however, that,
under the circumstances of the case, the crime committed by appellants is murder through specially
mitigated by circumstances to be mentioned below.

In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the
case of U.S. v. Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only
when the mistake is committed without fault or carelessness. In the Ah Chong case, defendant therein
after having gone to bed was awakened by someone trying to open the door. He called out twice,
"who is there," but received no answer. Fearing that the intruder was a robber, he leaped from his bed
and called out again., "If you enter the room I will kill you." But at that precise moment, he was struck
by a chair which had been placed against the door and believing that he was then being attacked, he
seized a kitchen knife and struck and fatally wounded the intruder who turned out to be his room-
mate. A common illustration of innocent mistake of fact is the case of a man who was marked as a
footpad at night and in a lonely road held up a friend in a spirit of mischief, and with leveled, pistol
demanded his money or life. He was killed by his friend under the mistaken belief that the attack was
real, that the pistol leveled at his head was loaded and that his life and property were in imminent
danger at the hands of the aggressor. In these instances, there is an innocent mistake of fact committed
without any fault or carelessness because the accused, having no time or opportunity to make a further
inquiry, and being pressed by circumstances to act immediately, had no alternative but to take the
facts as they then appeared to him, and such facts justified his act of killing. In the instant case,
appellants, unlike the accused in the instances cited, found no circumstances whatsoever which would
press them to immediate action. The person in the room being then asleep, appellants had ample time
and opportunity to ascertain his identity without hazard to themselves, and could even effect a
bloodless arrest if any reasonable effort to that end had been made, as the victim was unarmed,
according to Irene Requinea. This, indeed, is the only legitimate course of action for appellants to
follow even if the victim was really Balagtas, as they were instructed not to kill Balagtas at sight but
to arrest him, and to get him dead or alive only if resistance or aggression is offered by him.
Although an officer in making a lawful arrest is justified in using such force as is reasonably
necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture
him if he escapes, and protect himself from bodily harm (People vs. Delima, 46 Phil, 738), yet he is
never justified in using unnecessary force or in treating him with wanton violence, or in resorting to
dangerous means when the arrest could be effected otherwise (6 C.J.S., par. 13, p. 612). The doctrine
is restated in the new Rules of Court thus: "No unnecessary or unreasonable force shall be used in
making an arrest, and the person arrested shall not be subject to any greater restraint than is necessary
for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot claim exemption from
criminal liability if he uses unnecessary force or violence in making an arrest (5 C.J., p. 753;
U.S. vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a notorious criminal, a life-
termer, a fugitive from justice and a menace to the peace of the community, but these facts alone
constitute no justification for killing him when in effecting his arrest, he offers no resistance or in fact
no resistance can be offered, as when he is asleep. This, in effect, is the principle laid down, although
upon different facts, in U.S. vs.Donoso (3 Phil., 234, 242).

It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right
to life which he has by such notoriety already forfeited. We may approve of this standard of official
conduct where the criminal offers resistance or does something which places his captors in danger of
imminent attack. Otherwise we cannot see how, as in the present case, the mere fact of notoriety can
make the life of a criminal a mere trifle in the hands of the officers of the law. Notoriety rightly
supplies a basis for redoubled official alertness and vigilance; it never can justify precipitate action at
the cost of human life. Where, as here, the precipitate action of the appellants has cost an innocent life
and there exist no circumstances whatsoever to warrant action of such character in the mind of a
reasonably prudent man, condemnation — not condonation — should be the rule; otherwise we
should offer a premium to crime in the shelter of official actuation.

The crime committed by appellants is not merely criminal negligence, the killing being intentional and
not accidental. In criminal negligence, the injury caused to another should be unintentional, it being
simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939). In the
words of Viada, "para que se celifique un hecho de imprudencia es preciso que no haya mediado en el
malicia ni intencion alguna de dañar; existiendo esa intencion, debera calificarse el hecho del delito
que ha producido, por mas que no haya sido la intencion del agente el causar un mal de tanta gravedad
como el que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once held
by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of
reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs.Bindor, 56 Phil., 16), and where
such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be
considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to support a plea of mitigated
liability.

As the deceased was killed while asleep, the crime committed is murder with the qualifying
circumstance of alevosia. There is, however, a mitigating circumstance of weight consisting in the
incomplete justifying circumstance defined in article 11, No. 5, of the Revised Penal Code. According
to such legal provision, a person incurs no criminal liability when he acts in the fulfillment of a duty
or in the lawful exercise of a right or office. There are two requisites in order that the circumstance
may be taken as a justifying one: (a) that the offender acted in the performance of a duty or in the
lawful exercise of a right; and (b) that the injury or offense committed be the necessary consequence
of the due performance of such duty or the lawful exercise of such right or office. In the instance case,
only the first requisite is present — appellants have acted in the performance of a duty. The second
requisite is wanting for the crime by them committed is not the necessary consequence of a due
performance of their duty. Their duty was to arrest Balagtas or to get him dead or alive if resistance is
offered by him and they are overpowered. But through impatience or over-anxiety or in their desire to
take no chances, they have exceeded in the fulfillment of such duty by killing the person whom they
believed to be Balagtas without any resistance from him and without making any previous inquiry as
to his identity. According to article 69 of the Revised Penal Code, the penalty lower by one or two
degrees than that prescribed by law shall, in such case, be imposed.
For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder
with the mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate
penalty of from five (5) years of prision correctional to fifteen (15) years of reclusion temporal, with
the accessories of the law, and to pay the heirs of the deceased Serapio Tecson jointly and severally an
indemnity of P2,000, with costs.

G.R. No. L-1896 February 16, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RAFAEL BALMORES Y CAYA, defendant-appellant.
Felixberto B. Viray for appellant.
Assistant Solicitor General Ruperto Kapunan, Jr. and Solicitor Adolfo Brillantes for appellee.
OZAETA, J.:

Appellant, waiving the right to be assisted by counsel, pleaded guilty to the following information
filed against him in the Court of First Instance of Manila:

The undersigned accuses Rafael Balmores y Caya of attempted estafa through falsification of a
security, committed as follows:

That on or about the 22nd day of September, 1947, in the City of Manila, Philippines, the said accused
did then and there wilfully, unlawfully and feloniously commence the commission of the crime of
estafa through falsification of a security directly by overt acts, to wit; by then and there tearing off at
the bottom in a cross-wise direction a portion of a genuine 1/8 unit Philippine Charity Sweepstakes
ticket thereby removing the true and real unidentified number of same and substituting and writing in
ink at the bottom on the left side of said ticket the figure or number 074000 thus making the said ticket
bear the said number 074000, which is a prize-winning number in the Philippine Charity Sweepstakes
draw last June 29, 1947, and presenting the said ticket so falsified on said date, September 22, 1947,
in the Philippine Charity Sweepstakes Office for the purpose of exchanging the same for the
corresponding cash that said number has won, fraudulently pretending in said office that the said 1/8
unit of a Philippine Charity Sweepstakes ticket is genuine and that he is entitled to the corresponding
amount of P359.55 so won by said ticket in the Philippine Charity Sweepstakes draw on said date,
June 29, 1947, but the said accused failed to perform all the acts of execution which would have
produce the crime of estafa through falsification of a security as a consequence by reason of some
causes other than this spontaneous desistance, to wit: one Bayani Miller, an employee to whom the
said accused presented said ticket in the Philippine Charity Sweepstakes Office discovered that the
said ticket as presented by the said accused was falsified and immediately thereafter he called for a
policeman who apprehended and arrested the said accused right then and there.

Contrary to law.

(Sgd.) LORENZO RELOVA

Assistant City Fiscal
and was sentenced by Judge Emilio Pena to suffer not less than 10 years and 1 day of prision
mayor and not more than 12 years and 1 day of reclusion temporal, and to pay a fine of P100 and the
costs.

From that sentence he appealed to this court, contending (1) that the facts and (2) that the trial court
lacked jurisdiction to convict him on a plea of guilty because, being illiterate, he was not assisted by
counsel.

In support of the first contention, counsel for the appellant argues that there could be so could be no
genuine 1/8 unit Philippine Charity Sweepstakes ticket for the June 29, 1947, draw; that this court has
judicial notice that the Philippine Charity Sweepstakes Office issued only four 1/4 units for each ticket
for the said draw of June 29, 1947; that the information does not show that the true and real
unidentified number of the ticket alleged to have been torn was not and could not be 074000; that the
substitution and writing in ink of the said number 074000 was not falsification where the true and real
number of the ticket so torn was 074000.

This contention is based on assumption not borne out by the record. The ticket alleged to have been
falsified is before us and it appears to be a 1/8 unit. We cannot take judicial notice of what is not of
common knowledge. If relevant, should have been proved. But if it is true that the Philippine Charity
Sweepstakes Office did not issue 1/8 but only 1/4 units of tickets for the June 29, 1947, draw, that
would only strengthen the theory of the prosecution that the 1/8 unit of a ticket which appellant
presented to the Philippine Charity Sweepstakes Office was spurious. The assumption that the true
and real unidentified number of the ticket alleged to have been torn was the winning number 074000,
is likewise not supported by the record. The information to which appellant pleaded guilty alleged that
the appellant removed the true and real unidentified number of the ticket and substituted and wrote in
ink at the bottom on the left side of said ticket the figure or number 074000. It is obvious that there
would have been no need of removal and substitution if the original number on the ticket was the
same as that which appellant wrote in ink in lieu thereof.

The second contention appears to be based on a correct premises but wrong conclusion. The fact that
appellant was illiterate did not deprive the trial court of jurisdiction assisted by counsel. The decision
expressly states that appellant waived the right to be assisted by counsel, and we know of no law
against such waiver.

It may be that appellant was either reckless or foolish in believing that a falsification as patent as that
which he admitted to have perpetrated would succeed; but the recklessness and clumsiness of the
falsification did not make the crime impossible within the purview of paragraph 2, article 4, in relation
to article 59, of the Revised Penal Code. Examples of an impossible crime, which formerly was not
punishable but is now under article 59 of the Revised Penal Code, are the following: (1) When one
tries to kill another by putting in his soup a substance which he believes to be arsenic when in fact it is
common salt; and (2) when one tries to murder a corpse. (Guevara, Commentaries on the Revised
Penal Code, 4th ed., page 15; decision, Supreme Court of Spain, November 26, 1879; 12 Jur. Crim.,
343.) Judging from the appearance of the falsified ticket in question, we are not prepared to say that it
would have been impossible for the appellant to consummate the crime of estafa thru falsification of
said ticket if the clerk to whom it was presented for the payment had not exercised due care.

The penalty imposed by article 166 for the forging or falsification of "treasury or bank notes or
certificates or other obligations and securities" is reclusion temporal in its minimum period and a fine
not to exceed P10,000, if the document which has been falsified, counterfeited, or altered is an
obligation or security of the United States or of the Philippine Islands. This being a complex crime of
attempted estafa through falsification of an obligation or security of the Philippines, the penalty
should be imposed in its maximum period in accordance with article 48. Taking into consideration the
mitigating circumstance of lack of instruction, and applying the Indeterminate Sentence Law, the
minimum cannot be lower than prision mayor in its maximum period, which is 10 years and 1 day to
12 years. It results, therefore, that the penalty imposed by the trial court is correct.

The alteration, or even destruction, of a losing sweepstakes ticket could cause no harm to anyone and
would not constitute a crime were it not for the attempt to cash the ticket so altered as a prize-winning
number. So in the ultimate analysis appellant's real offense was the attempt to commit estafa
(punishable with eleven days of arresto menor); but technically and legally he has to suffer for the
serious crime of falsification of a government obligation. We realize that the penalty is too severe,
considering all the circumstances of the case, but we have no discretion to impose a lower penalty
than authorized by law. The exercise of clemency and not in this court.

We are constrained to affirm the sentence appealed from, with costs against the appellant.

Moran, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes and Torres, JJ., concur.

G.R. No. 162540 July 13, 2009

GEMMA T. JACINTO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:

Before us is a petition for review on certiorari filed by petitioner Gemma T. Jacinto seeking the
reversal of the Decision1 of the Court of Appeals (CA) in CA-G.R. CR No. 23761 dated December 16,
2003, affirming petitioner's conviction of the crime of Qualified Theft, and its Resolution2 dated
March 5, 2004 denying petitioner's motion for reconsideration.

Petitioner, along with two other women, namely, Anita Busog de Valencia y Rivera and Jacqueline
Capitle, was charged before the Regional Trial Court (RTC) of Caloocan City, Branch 131, with the
crime of Qualified Theft, allegedly committed as follows:

That on or about and sometime in the month of July 1997, in Kalookan City, Metro Manila, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and
mutually helping one another, being then all employees of MEGA FOAM INTERNATIONAL INC.,
herein represented by JOSEPH DYHENGCO Y CO, and as such had free access inside the aforesaid
establishment, with grave abuse of trust and confidence reposed upon them with intent to gain and
without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and
feloniously take, steal and deposited in their own account, Banco De Oro Check No. 0132649 dated
July 14, 1997 in the sum of ₱10,000.00, representing payment made by customer Baby Aquino to the
Mega Foam Int'l. Inc. to the damage and prejudice of the latter in the aforesaid stated amount of
₱10,000.00.

CONTRARY TO LAW.3

The prosecution's evidence, which both the RTC and the CA found to be more credible, reveals the
events that transpired to be as follows.

In the month of June 1997, Isabelita Aquino Milabo, also known as Baby Aquino, handed petitioner
Banco De Oro (BDO) Check Number 0132649 postdated July 14, 1997 in the amount of ₱10,000.00.
The check was payment for Baby Aquino's purchases from Mega Foam Int'l., Inc., and petitioner was
then the collector of Mega Foam. Somehow, the check was deposited in the Land Bank account of
Generoso Capitle, the husband of Jacqueline Capitle; the latter is the sister of petitioner and the former
pricing, merchandising and inventory clerk of Mega Foam.

Meanwhile, Rowena Ricablanca, another employee of Mega Foam, received a phone call sometime in
the middle of July from one of their customers, Jennifer Sanalila. The customer wanted to know if she
could issue checks payable to the account of Mega Foam, instead of issuing the checks payable
to CASH. Said customer had apparently been instructed by Jacqueline Capitle to make check
payments to Mega Foam payable to CASH. Around that time, Ricablanca also received a phone call
from an employee of Land Bank, Valenzuela Branch, who was looking for Generoso Capitle. The
reason for the call was to inform Capitle that the subject BDO check deposited in his account had been
dishonored.

Ricablanca then phoned accused Anita Valencia, a former employee/collector of Mega Foam, asking
the latter to inform Jacqueline Capitle about the phone call from Land Bank regarding the bounced
check. Ricablanca explained that she had to call and relay the message through Valencia, because the
Capitles did not have a phone; but they could be reached through Valencia, a neighbor and former co-
employee of Jacqueline Capitle at Mega Foam.

Valencia then told Ricablanca that the check came from Baby Aquino, and instructed Ricablanca to
ask Baby Aquino to replace the check with cash. Valencia also told Ricablanca of a plan to take the
cash and divide it equally into four: for herself, Ricablanca, petitioner Jacinto and Jacqueline Capitle.
Ricablanca, upon the advise of Mega Foam's accountant, reported the matter to the owner of Mega
Foam, Joseph Dyhengco.

Thereafter, Joseph Dyhengco talked to Baby Aquino and was able to confirm that the latter indeed
handed petitioner a BDO check for ₱10,000.00 sometime in June 1997 as payment for her purchases
from Mega Foam.4 Baby Aquino further testified that, sometime in July 1997, petitioner also called
her on the phone to tell her that the BDO check bounced.5 Verification from company records showed
that petitioner never remitted the subject check to Mega Foam. However, Baby Aquino said that she
had already paid Mega Foam ₱10,000.00 cash in August 1997 as replacement for the dishonored
check.6

Generoso Capitle, presented as a hostile witness, admitted depositing the subject BDO check in his
bank account, but explained that the check came into his possession when some unknown woman
arrived at his house around the first week of July 1997 to have the check rediscounted. He parted with
his cash in exchange for the check without even bothering to inquire into the identity of the woman or
her address. When he was informed by the bank that the check bounced, he merely disregarded it as
he didn’t know where to find the woman who rediscounted the check.

Meanwhile, Dyhengco filed a Complaint with the National Bureau of Investigation (NBI) and worked
out an entrapment operation with its agents. Ten pieces of ₱1,000.00 bills provided by Dyhengco were
marked and dusted with fluorescent powder by the NBI. Thereafter, the bills were given to
Ricablanca, who was tasked to pretend that she was going along with Valencia's plan.

On August 15, 2007, Ricablanca and petitioner met at the latter's house. Petitioner, who was then
holding the bounced BDO check, handed over said check to Ricablanca. They originally intended to
proceed to Baby Aquino's place to have the check replaced with cash, but the plan did not push
through. However, they agreed to meet again on August 21, 2007.

On the agreed date, Ricablanca again went to petitioner’s house, where she met petitioner and
Jacqueline Capitle. Petitioner, her husband, and Ricablanca went to the house of Anita Valencia;
Jacqueline Capitle decided not to go with the group because she decided to go shopping. It was only
petitioner, her husband, Ricablanca and Valencia who then boarded petitioner's jeep and went on to
Baby Aquino's factory. Only Ricablanca alighted from the jeep and entered the premises of Baby
Aquino, pretending that she was getting cash from Baby Aquino. However, the cash she actually
brought out from the premises was the ₱10,000.00 marked money previously given to her by
Dyhengco. Ricablanca divided the money and upon returning to the jeep, gave ₱5,000.00 each to
Valencia and petitioner. Thereafter, petitioner and Valencia were arrested by NBI agents, who had
been watching the whole time.

Petitioner and Valencia were brought to the NBI office where the Forensic Chemist found fluorescent
powder on the palmar and dorsal aspects of both of their hands. This showed that petitioner and
Valencia handled the marked money. The NBI filed a criminal case for qualified theft against the two
and one Jane Doe who was later identified as Jacqueline Capitle, the wife of Generoso Capitle.

The defense, on the other hand, denied having taken the subject check and presented the following
scenario.

Petitioner admitted that she was a collector for Mega Foam until she resigned on June 30, 1997, but
claimed that she had stopped collecting payments from Baby Aquino for quite some time before her
resignation from the company. She further testified that, on the day of the arrest, Ricablanca came to
her mother’s house, where she was staying at that time, and asked that she accompany her
(Ricablanca) to Baby Aquino's house. Since petitioner was going for a pre-natal check-up at the
Chinese General Hospital, Ricablanca decided to hitch a ride with the former and her husband in their
jeep going to Baby Aquino's place in Caloocan City. She allegedly had no idea why Ricablanca asked
them to wait in their jeep, which they parked outside the house of Baby Aquino, and was very
surprised when Ricablanca placed the money on her lap and the NBI agents arrested them.

Anita Valencia also admitted that she was the cashier of Mega Foam until she resigned on June 30,
1997. It was never part of her job to collect payments from customers. According to her, on the
morning of August 21, 1997, Ricablanca called her up on the phone, asking if she (Valencia) could
accompany her (Ricablanca) to the house of Baby Aquino. Valencia claims that she agreed to do so,
despite her admission during cross-examination that she did not know where Baby Aquino resided, as
she had never been to said house. They then met at the house of petitioner's mother, rode the jeep of
petitioner and her husband, and proceeded to Baby Aquino's place. When they arrived at said place,
Ricablanca alighted, but requested them to wait for her in the jeep. After ten minutes, Ricablanca
came out and, to her surprise, Ricablanca gave her money and so she even asked, "What is this?"
Then, the NBI agents arrested them.

The trial of the three accused went its usual course and, on October 4, 1999, the RTC rendered its
Decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Court finds accused Gemma Tubale De Jacinto y
Latosa, Anita Busog De Valencia y Rivera and Jacqueline Capitle GUILTY beyond reasonable
doubt of the crime of QUALIFIED THEFT and each of them is hereby sentenced to suffer
imprisonment of FIVE (5) YEARS, FIVE (5) MONTHS AND ELEVEN (11) DAYS, as minimum,
to SIX (6) YEARS, EIGHT (8) MONTHS AND TWENTY (20) DAYS, as maximum.

SO ORDERED.7

The three appealed to the CA and, on December 16, 2003, a Decision was promulgated, the
dispositive portion of which reads, thus:

IN VIEW OF THE FOREGOING, the decision of the trial court is MODIFIED, in that:
(a) the sentence against accused Gemma Jacinto stands;

(b) the sentence against accused Anita Valencia is reduced to 4 months arresto mayor medium.

(c) The accused Jacqueline Capitle is acquitted.

SO ORDERED.

A Partial Motion for Reconsideration of the foregoing CA Decision was filed only for petitioner
Gemma Tubale Jacinto, but the same was denied per Resolution dated March 5, 2004.

Hence, the present Petition for Review on Certiorari filed by petitioner alone, assailing the Decision
and Resolution of the CA. The issues raised in the petition are as follows:

1. Whether or not petitioner can be convicted of a crime not charged in the information;

2. Whether or not a worthless check can be the object of theft; and

3. Whether or not the prosecution has proved petitioner's guilt beyond reasonable doubt.8

The petition deserves considerable thought.

The prosecution tried to establish the following pieces of evidence to constitute the elements of the
crime of qualified theft defined under Article 308, in relation to Article 310, both of the Revised Penal
Code: (1) the taking of personal property - as shown by the fact that petitioner, as collector for Mega
Foam, did not remit the customer's check payment to her employer and, instead, appropriated it for
herself; (2) said property belonged to another − the check belonged to Baby Aquino, as it was her
payment for purchases she made; (3) the taking was done with intent to gain – this is presumed from
the act of unlawful taking and further shown by the fact that the check was deposited to the bank
account of petitioner's brother-in-law; (4) it was done without the owner’s consent – petitioner hid the
fact that she had received the check payment from her employer's customer by not remitting the check
to the company; (5) it was accomplished without the use of violence or intimidation against persons,
nor of force upon things – the check was voluntarily handed to petitioner by the customer, as she was
known to be a collector for the company; and (6) it was done with grave abuse of confidence –
petitioner is admittedly entrusted with the collection of payments from customers.

However, as may be gleaned from the aforementioned Articles of the Revised Penal Code, the
personal property subject of the theft must have some value, as the intention of the accused is
to gain from the thing stolen. This is further bolstered by Article 309, where the law provides that
the penalty to be imposed on the accused is dependent on the value of the thing stolen.

In this case, petitioner unlawfully took the postdated check belonging to Mega Foam, but the same
was apparently without value, as it was subsequently dishonored. Thus, the question arises on whether
the crime of qualified theft was actually produced.

The Court must resolve the issue in the negative.

Intod v. Court of Appeals9 is highly instructive and applicable to the present case. In Intod, the
accused, intending to kill a person, peppered the latter’s bedroom with bullets, but since the intended
victim was not home at the time, no harm came to him. The trial court and the CA held Intod guilty of
attempted murder. But upon review by this Court, he was adjudged guilty only of an impossible
crime as defined and penalized in paragraph 2, Article 4, in relation to Article 59, both of the Revised
Penal Code, because of the factual impossibility of producing the crime. Pertinent portions of said
provisions read as follows:

Article 4(2). Criminal Responsibility. - Criminal responsibility shall be incurred:

xxxx
2. By any person performing an act which would be an offense against persons or property, were it not
for the inherent impossibility of its accomplishment or on account of the employment of inadequate
to ineffectual means. (emphasis supplied)

Article 59. Penalty to be imposed in case of failure to commit the crime because the means employed
or the aims sought are impossible. - When the person intending to commit an offense has already
performed the acts for the execution of the same but nevertheless the crime was not produced by
reason of the fact that the act intended was by its nature one of impossible accomplishment or because
the means employed by such person are essentially inadequate to produce the result desired by him,
the court, having in mind the social danger and the degree of criminality shown by the offender, shall
impose upon him the penalty of arresto mayor or a fine ranging from 200 to 500 pesos.

Thus, the requisites of an impossible crime are: (1) that the act performed would be an offense against
persons or property; (2) that the act was done with evil intent; and (3) that its accomplishment was
inherently impossible, or the means employed was either inadequate or ineffectual. The aspect of the
inherent impossibility of accomplishing the intended crime under Article 4(2) of the Revised Penal
Code was further explained by the Court in Intod10 in this wise:

Under this article, the act performed by the offender cannot produce an offense against persons or
property because: (1) the commission of the offense is inherently impossible of accomplishment; or
(2) the means employed is either (a) inadequate or (b) ineffectual.

That the offense cannot be produced because the commission of the offense is inherently impossible
of accomplishment is the focus of this petition. To be impossible under this clause, the act intended by
the offender must be by its nature one impossible of accomplishment. There must be either (1) legal
impossibility, or (2) physical impossibility of accomplishing the intended act in order to qualify the
act as an impossible crime.

Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime.

xxxx

The impossibility of killing a person already dead falls in this category.

On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor
or beyond his control prevent the consummation of the intended crime. x x x 11

In Intod, the Court went on to give an example of an offense that involved factual impossibility, i.e., a
man puts his hand in the coat pocket of another with the intention to steal the latter's wallet, but gets
nothing since the pocket is empty.

Herein petitioner's case is closely akin to the above example of factual impossibility given in Intod. In
this case, petitioner performed all the acts to consummate the crime of qualified theft, which is a crime
against property. Petitioner's evil intent cannot be denied, as the mere act of unlawfully taking the
check meant for Mega Foam showed her intent to gain or be unjustly enriched. Were it not for the fact
that the check bounced, she would have received the face value thereof, which was not rightfully hers.
Therefore, it was only due to the extraneous circumstance of the check being unfunded, a fact
unknown to petitioner at the time, that prevented the crime from being produced. The thing unlawfully
taken by petitioner turned out to be absolutely worthless, because the check was eventually
dishonored, and Mega Foam had received the cash to replace the value of said dishonored
check.1avvphi1

The fact that petitioner was later entrapped receiving the ₱5,000.00 marked money, which she thought
was the cash replacement for the dishonored check, is of no moment. The Court held in Valenzuela v.
People12 that under the definition of theft in Article 308 of the Revised Penal Code, "there is only one
operative act of execution by the actor involved in theft ─ the taking of personal property of another."
Elucidating further, the Court held, thus:
x x x Parsing through the statutory definition of theft under Article 308, there is one apparent answer
provided in the language of the law — that theft is already "produced" upon the "tak[ing of] personal
property of another without the latter’s consent."

xxxx

x x x when is the crime of theft produced? There would be all but certain unanimity in the position
that theft is produced when there is deprivation of personal property due to its taking by one with
intent to gain. Viewed from that perspective, it is immaterial to the product of the felony that the
offender, once having committed all the acts of execution for theft, is able or unable to freely dispose
of the property stolen since the deprivation from the owner alone has already ensued from such acts of
execution. x x x

xxxx

x x x we have, after all, held that unlawful taking, or apoderamiento, is deemed complete from the
moment the offender gains possession of the thing, even if he has no opportunity to dispose of the
same. x x x

x x x Unlawful taking, which is the deprivation of one’s personal property, is the element which
produces the felony in its consummated stage. x x x 13

From the above discussion, there can be no question that as of the time that petitioner took
possession of the check meant for Mega Foam, she had performed all the acts to consummate
the crime of theft, had it not been impossible of accomplishment in this case. The circumstance of
petitioner receiving the ₱5,000.00 cash as supposed replacement for the dishonored check was no
longer necessary for the consummation of the crime of qualified theft. Obviously, the plan to convince
Baby Aquino to give cash as replacement for the check was hatched only after the check had been
dishonored by the drawee bank. Since the crime of theft is not a continuing offense, petitioner's act of
receiving the cash replacement should not be considered as a continuation of the theft. At most, the
fact that petitioner was caught receiving the marked money was merely corroborating evidence to
strengthen proof of her intent to gain.

Moreover, the fact that petitioner further planned to have the dishonored check replaced with cash by
its issuer is a different and separate fraudulent scheme. Unfortunately, since said scheme was not
included or covered by the allegations in the Information, the Court cannot pronounce judgment on
the accused; otherwise, it would violate the due process clause of the Constitution. If at all, that
fraudulent scheme could have been another possible source of criminal liability.

IN VIEW OF THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals,
dated December 16, 2003, and its Resolution dated March 5, 2004, are MODIFIED. Petitioner
Gemma T. Jacinto is found GUILTY of an IMPOSSIBLE CRIME as defined and penalized in
Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Petitioner is sentenced to
suffer the penalty of six (6) months of arrresto mayor, and to pay the costs.
G.R. Nos. 119987-88 October 12, 1995
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. LORENZO B. VENERACION, Presiding Judge of the Regional Trial Court, National Capital
Judicial Region, Branch 47, Manila, HENRY LAGARTO y PETILLA and ERNESTO
CORDERO, respondents.

KAPUNAN, J.:

The sole issue in the case at bench involves a question of law. After finding that an accused individual in
a criminal case has, on the occasion of Rape, committed Homicide, is the judge allowed any discretion
in imposing either the penalty of Reclusion Perpetua or Death?

The facts antecedent to the case before this Court, as narrated by petitioner,1 involve the perpetration of
acts so bizarre and devoid of humanity as to horrify and numb the senses of all civilized men:

On August 2, 1994, the cadaver of a young girl, later identified as Angel Alquiza wrapped in a sack and
yellow table cloth tied with a nylon cord with both feet and left hand protruding from it was seen floating
along Del Pan St. near the corner of Lavesares St., Binondo, Manila.

When untied and removed from its cover, the lifeless body of the victim was seen clad only in a light
colored duster without her panties, with gaping wounds on the left side of the face, the left chin, left ear,
lacerations on her genitalia, and with her head bashed in.

On the basis of sworn statements of witnesses, booking sheets, arrest reports and the necropsy report
of the victim, Abundio Lagunday, a.k.a. Jr. Jeofrey of no fixed address, and Henry Lagarto y Petilla, of
288 Area H. Parola Compound, Tondo, Manila were later charged with the crime of Rape with Homicide
in an Information dated August 8, 1994 filed with the Regional Trial Court of Manila, National Capital
Judicial Region. Said Information, docketed as Criminal Case No. 94-138071, reads:

That on or about August 2, 1994, in the City of Manila, Philippines, the said accused, conspiring and
confederating together with one alias"LANDO" and other persons whose true names, identifies and
present whereabouts are still unknown and helping one another, with treachery, taking advantage of
their superior strength and nocturnity, and ignominy, and with the use of force and violence, that is, by
taking ANGEL ALQUIZA y LAGMAN into a warehouse, covering her mouth, slashing her vagina, hitting
her head with a thick piece of wood and stabbing her neck did then and there wilfully, unlawfully and
feloniously have carnal knowledge of the person of said ANGEL ALQUIZA y LAGMAN, a minor, seven
(7) years of age, against the latter's will and consent and on said occasion the said ABUNDIO
LAGUNDAY, a.k.a. "LANDO" and others, caused her fatal injuries which were the direct cause of her
death immediately thereafter.

CONTRARY TO LAW.

Subsequently thereafter, Ernesto Cordero y Maristela, a.k.a. "Booster," of 1198 Sunflower St., Tondo,
Manila, Rolando Manlangit y Mamerta, a.k.a. "Lando," of 1274 Kagitingan St., Tondo, Manila, Richard
Baltazar y Alino, a.k.a. "Curimao," also of 1274 Kagitingan St., Tondo, Manila, and Catalino Yaon y
Aberin, a.k.a. "Joel," of 1282 Lualhati St., Tondo, Manila were accused of the same crime of Rape with
Homicide in an Information dated August 11, 1994, docketed as Criminal Case No. 94-138138, allegedly
committed as follows:

That on or about the 2nd day of August, 1994, in the City of Manila, Philippines, the said accused
conspiring and confederating with ABUNDIO LAGUNDAY Alias "JR," JEOFREY and HENRY LAGARTO
y PETILLA who have already been charged in the Regional Trial Court of Manila of the same offense
under Criminal Case No. 94-138071, and helping one another, with treachery, taking advantage of their
superior strength and nocturnity and ignominy, and with the use of force and violence, that is, by taking
ANGEL ALQUIZA y LAGMAN into a pedicab, and once helpless, forcibly bringing her to a nearby
warehouse, covering her mouth, slashing her vagina, hitting her head with a thick piece of wood and
stabbing her neck, did then and there wilfully, unlawfully and feloniously have carnal knowledge of the
person of said ANGEL ALQUIZA y LAGMAN, a minor, seven (7) years of age, against the latter's will
and consent and on said occasion the said accused together with their confederates ABUNDIO
LAGARTO y PETILLA caused her fatal injuries which were the direct cause of her death immediately
thereafter.

CONTRARY TO LAW.

The two criminal cases were consolidated to Branch 47 of the Regional Trial Court of Manila, presided
over by respondent Judge.

Duly arraigned, all the accused, except Abundio Lagunday who was already dead, (allegedly shot by
police escorts after attempting to fire a gun he was able to grab from SPO1 D. Vidad on August 12,
1994), pleaded "Not Guilty." Abundio Lagunday was dropped from the Information.

After trial and presentation of the evidence of the prosecution and the defense, the trial court rendered a
decision2 on January 31, 1995 finding the defendants Henry Lagarto y Petilla and Ernesto Cordero y
Maristela guilty beyond reasonable doubt of the crime of Rape with Homicide and sentenced both
accused with the "penalty of reclusion perpetua with all the accessories provided for by
law."3 Disagreeing with the sentence imposed, the City Prosecutor of Manila on February 8, 1995, filed
a Motion for Reconsideration, praying that the Decision be "modified in that the penalty of death be
imposed" against respondents Lagarto and Cordero, in place of the original penalty (reclusion perpetua).
Refusing to act on the merits of the said Motion for Reconsideration, respondent Judge, on February 10,
1995, issued an Order denying the same for lack of jurisdiction. The pertinent portion reads:

The Court believes that in the above-entitled cases, the accused Lagarto and Cordero have complied
with the legal requirements for the perfection of an appeal. Consequently, for lack of jurisdiction, this
Court cannot take cognizance of the Motion for Reconsideration of the Public Prosecutor of Manila.

WHEREFORE, the order earlier issued by this Court regarding the Notices of Appeal filed by both herein
accused is hereby reiterated.

The Clerk of this Court is hereby directed to transmit the complete records of these cases, together with
the notices of appeal, to the Honorable Supreme Court, in accordance with Sec. 8, Rule 122 of the
Revised Rules of Criminal Procedure.

SO ORDERED.

Hence, the instant petition.

The trial court's finding of guilt is not at issue in the case at bench. The basis of the trial court's
determination of guilt and its conclusions will only be subject to our scrutiny at an appropriate time on
appeal. We have thus clinically limited our narration of events to those cold facts antecedent to the
instant case relevant to the determination of the legal question at hand, i.e., whether or not the
respondent judge acted with grave abuse of discretion and in excess of jurisdiction when he failed
and/or refused to impose the mandatory penalty of death under Republic Act No. 7659, after finding the
accused guilty of the crime of Rape with Homicide.

We find for petitioner.

Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of
religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are
required by law to exercise the duties of their office, then law becomes meaningless. A government of
laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority.
Under this system, judges are guided by the Rule of Law, and ought "to protect and enforce it without
fear or favor,"4 resist encroachments by governments, political parties,5 or even the interference of their
own personal beliefs.

In the case at bench, respondent judge, after weighing the evidence of the prosecution and the
defendant at trial found the accused guilty beyond reasonable doubt of the crime of Rape with Homicide.
Since the law in force at the time of the commission of the crime for which respondent judge found the
accused guilty was Republic Act No. 7659, he was bound by its provisions.

Section 11 of R.A. No. 7659 provides:

Sec. 11. Article 335 of the same Code is hereby amended to read as follows:
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.

When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be
death.

When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion
thereof, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. . .
.6

Clearly, under the law, the penalty imposable for the crime of Rape with Homicide is not Reclusion
Perpetua but Death. While Republic Act 7659 punishes cases of ordinary rape with the penalty
of Reclusion Perpetua, it allows judges the discretion — depending on the existence of circumstances
modifying the offense committed — to impose the penalty of either Reclusion Perpetua only in the three
instances mentioned therein. Rape with homicide is not one of these three instances. The law plainly
and unequivocably provides that "[w]hen by reason or on the occasion of rape, a homicide is committed,
the penalty shall be death." The provision leaves no room for the exercise of discretion on the part of the
trial judge to impose a penalty under the circumstances described, other than a sentence of death.

We are aware of the trial judge's misgivings in imposing the death sentence because of his religious
convictions. While this Court sympathizes with his predicament, it is its bounden duty to emphasize that
a court of law is no place for a protracted debate on the morality or propriety of the sentence, where the
law itself provides for the sentence of death as a penalty in specific and well-defined instances. The
discomfort faced by those forced by law to impose the death penalty is an ancient one, but it is a matter
upon which judges have no choice. Courts are not concerned with the wisdom, efficacy or morality of
laws. In People vs. Limaco 7 we held that:

[W]hen . . . private opinions not only form part of their decision but constitute a decisive factor in arriving at a
conclusion and determination of a case or the penalty imposed, resulting in an illegality and reversible error, then
we are constrained to state our opinion, not only to correct the error but for the guidance of the courts. We have
no quarrel with the trial judge or with anyone else, layman or jurist as to the wisdom or folly of the death penalty.
Today there are quite a number of people who honestly believe that the supreme penalty is either morally wrong
or unwise or ineffective. However, as long as that penalty remains in the statute books, and as long as our
criminal law provides for its imposition in certain cases, it is the duty of judicial officers to respect and apply the
law regardless of their private opinions. It is a well settled rule that the courts are not concerned with the wisdom,
efficacy or morality of laws. That question falls exclusively within the province of the Legislature which enacts
them and the Chief Executive who approves or vetoes them. The only function of the judiciary is to interpret the
laws and, if not in disharmony with the Constitution, to apply them. And for the guidance of the members of the
judiciary we feel it incumbent upon us to state that while they as citizens or as judges may regard a certain law as
harsh, unwise or morally wrong, and may recommend to the authority or department concerned, its amendment,
modification, or repeal, still, as long as said law is in force, they must apply it and give it effect as decreed by the
law-making body.8

Finally, the Rules of Court mandates that after an adjudication of guilt, the judge should impose "the proper
penalty and civil liability provided for by the law on the accused."9 This is not a case of a magistrate ignorant of
the law. This is a case in which a judge, fully aware of the appropriate provisions of the law, refuses to impose a
penalty to which he disagrees. In so doing, respondent judge acted without or in excess of his jurisdiction or with
grave abuse of discretion amounting to a lack of jurisdiction in imposing the penalty of Reclusion Perpetua where
the law clearly imposes the penalty of Death.

WHEREFORE, PREMISES CONSIDERED, the instant petition is GRANTED. The case is hereby REMANDED to
the Regional Trial Court for the imposition of the penalty of death upon private respondents in consonance with
respondent judge's finding that the private respondents in the instant case had committed the crime of Rape with
Homicide under Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659,
subject to automatic review by this Court of the decision imposing the death penalty.

SO ORDERED.

G.R. No. L-12155 February 2, 1917

THE UNITED STATES, plaintiff-appellee,
vs.
PROTASIO EDUAVE, defendant-appellant.
Manuel Roxas for appellant.
Attorney-General Avanceña for appellee.
MORELAND, J.:

We believe that the accused is guilty of frustrated murder.

We are satisfied that there was an intent to kill in this case. A deadly weapon was used. The blow was directed toward a vital part
of the body. The aggressor stated his purpose to kill, thought he had killed, and threw the body into the bushes. When he gave
himself up he declared that he had killed the complainant.

There was alevosia to qualify the crime as murder if death had resulted. The accused rushed upon the girl suddenly and struck her
from behind, in part at least, with a sharp bolo, producing a frightful gash in the lumbar region and slightly to the side eight and
one-half inches long and two inches deep, severing all of the muscles and tissues of that part.

The motive of the crime was that the accused was incensed at the girl for the reason that she had theretofore charged him criminally
before the local officials with having raped her and with being the cause of her pregnancy. He was her mother's querido and was
living with her as such at the time the crime here charged was committed.

That the accused is guilty of some crime is not denied. The only question is the precise crime of which he should be convicted. It is
contended, in the first place, that, if death has resulted, the crime would not have been murder but homicide, and in the second
place, that it is attempted and not frustrated homicide.

As to the first contention, we are of the opinion that the crime committed would have been murder if the girl had been killed. It is
qualified by the circumstance of alevosia, the accused making a sudden attack upon his victim from the rear, or partly from the rear,
and dealing her a terrible blow in the back and side with his bolo. Such an attack necessitates the finding that it was made
treacherously; and that being so the crime would have been qualified as murder if death had resulted.

As to the second contention, we are of the opinion that the crime was frustrated and not attempted murder. Article 3 of the Penal
Code defines a frustrated felony as follows:

A felony is frustrated when the offender performs all the acts of execution which should produce the felony as a consequence, but
which, nevertheless, do not produce it by reason of causes independent of the will of the perpetrator.

An attempted felony is defined thus:

There is an attempt when the offender commences the commission of the felony directly by overt acts, and does not perform all the
acts of execution which constitute the felony by reason of some cause or accident other than his own voluntarily desistance.

The crime cannot be attempted murder. This is clear from the fact that the defendant performed all of the acts which should have
resulted in the consummated crime and voluntarily desisted from further acts. A crime cannot be held to be attempted unless the
offender, after beginning the commission of the crime by overt acts, is prevented, against his will, by some outside cause from
performing all of the acts which should produce the crime. In other words, to be an attempted crime the purpose of the offender
must be thwarted by a foreign force or agency which intervenes and compels him to stop prior to the moment when he has
performed all of the acts which should produce the crime as a consequence, which acts it is his intention to perform. If he has
performed all of the acts which should result in the consummation of the crime and voluntarily desists from proceeding further, it
can not be an attempt. The essential element which distinguishes attempted from frustrated felony is that, in the latter, there is no
intervention of a foreign or extraneous cause or agency between the beginning of the commission of the crime and the moment
when all of the acts have been performed which should result in the consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of performing all of the acts which should produce the crime. He is
stopped short of that point by some cause apart from his voluntary desistance.

To put it in another way, in case of an attempt the offender never passes the subjective phase of the offense. He is interrupted and
compelled to desist by the intervention of outside causes before the subjective phase is passed.

On the other hand, in case of frustrated crimes the subjective phase is completely passed. Subjectively the crime is complete.
Nothing interrupted the offender while he was passing through the subjective phase. The crime, however, is not consummated by
reason of the intervention of causes independent of the will of the offender. He did all that was necessary to commit the crime. If
the crime did not result as a consequence it was due to something beyond his control.

The subjective phase is that portion of the acts constituting the crime included between the act which begins the commission of the
crime and the last act performed by the offender which, with the prior acts, should result in the consummated crime. From that time
forward the phase is objective. It may also be said to be that period occupied by the acts of the offender over which he has control
— that period between the point where he begins and the points where he voluntarily desists. If between these two points the
offender is stopped by reason of any cause outside of his own voluntary desistance, the subjective phase has not been passed and it
is an attempt. If he is not so stopped but continues until he performs the last act, it is frustrated.

That the case before us is frustrated is clear.

The penalty should have been thirteen years of cadena temporal there being neither aggravating nor mitigating circumstance. As so
modified, the judgment is affirmed with costs. So ordered.

G.R. No. 175023 July 5, 2010

GIOVANI SERRANO y CERVANTES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BRION, J.:

We review in this petition for review on certiorari1 the decision2 dated July 20, 2006 of the Court of
Appeals (CA) in CA-G.R. CR No. 29090, entitled "People of the Philippines v. Giovani Serrano y
Cervantes." The CA modified the decision dated October 25, 20043 of the Regional Trial
Court4 (RTC), Branch 83, Quezon City, and found petitioner Giovani Serrano y Cervantes (petitioner)
guilty beyond reasonable doubt of attempted homicide, instead of frustrated homicide.

The Facts

The case stemmed from a brawl involving 15 to 18 members of two (2) rival groups that occurred at
the University of the Philippines, Diliman, Quezon City (UP) on the evening of March 8, 1999. The
incident resulted in the stabbing of Anthony Galang (victim). Pinpointed as the victim’s assailant, the
petitioner was charged on March 11, 1999,5 with frustrated homicide in an Information that reads:

That on or about the 8th day of March 1999, in Quezon City, Philippines, the said accused, with intent
to kill, did then and there willfully, unlawfully and feloniously attack, assault and employ personal
violence upon the person of one ANTHONY GALANG Y LAGUNSAD, by then and there stabbing
him on the stomach with a bladed weapon, thus performing all the acts of execution which should
have produced the crime of homicide, as a consequence but which nevertheless did not produce it, by
reason of some causes independent of the will of the accused; that is the timely and able medical
assistance rendered to said ANTHONY GALANG Y LAGUNSAD which prevented his death, to the
damage and prejudice of the said offended party.

CONTRARY TO LAW.6

On March 20, 2000, the petitioner pleaded not guilty. During the pre-trial, the prosecution and the
defense agreed to dispense with the testimonies of SPO2 Isagani dela Paz and the records custodian of
East Avenue Medical Center on the basis of the following stipulations: (1) SPO2 dela Paz was the one
who conducted the investigation; (2) SPO2 dela Paz took the statement of the victim at the East
Avenue Medical Center; (3) the victim was able to narrate the story of the incident to SPO2 dela Paz
before he underwent surgery; (4) SPO2 dela Paz prepared a referral-letter to the city prosecutor; (5)
SPO2 dela Paz had no personal knowledge of the incident; and (6) the victim was confined for
treatment at the East Avenue Medical Center from March 8, 1999, and the documents referring to his
confinement and treatment were duly executed and authenticated.7 After these stipulations, trial on the
merits immediately followed.

The Prosecution’s Evidence

The prosecution presented the victim, Arlo Angelo Arceo, Sgt. Rolando Zoleto, and SPO2 Roderick
Dalit.
These witnesses testified that, at around 9:30 p.m. of March 8, 1999, the victim and his two friends,
Arceo and Richard Tan, were on their way to Fatima II in Pook Dagohoy, UP Campus when they
came across Gener Serrano, the petitioner’s brother, who was with his group of friends. The victim,
Arceo and Tan approached Gener and his friends to settle a previous quarrel between Gener and
Roberto Comia. While the victim and Gener were talking, Comia suddenly appeared and hurled
invectives at Gener. Irked, Gener challenged Comia to a fistfight to settle their quarrel once and for
all; Comia rose to the challenge.

It was at this point that the petitioner appeared with other members of his group. He was a guest at a
party nearby, and was informed that a fight was about to take place between his brother and Comia.
Members of the victim’s group also started to show up.

The petitioner watched Gener fight Comia. When Gener lost the fight, the petitioner sought to get
back at the victim and his friends. Thus, the one-on-one escalated into a rumble between the members
of the two groups. During the rumble, and with the aid of the light emanating from two Meralco posts,
the victim and Arceo saw that the petitioner had a knife and used it to chase away the members of
their group. The petitioner also chased Arceo away, leaving the victim alone; the petitioner’s group
ganged up on him.

The petitioner went to where the victim was being beaten by Gener and one Obet Orieta. It was then
that the victim was stabbed. The petitioner stabbed the left side of his stomach while he was standing,
with Gener and Orieta holding his arms. The petitioner, Gener and Orieta thereafter continued to beat
and stone the victim until he fell into a nearby creek. The petitioner and his group left him there.

From his fallen position, the victim inspected his stab wound and saw that a portion of his intestines
showed. On foot, he went to find help. The victim was initially taken to the UP Infirmary, but was
referred to the East Avenue Medical Center where he underwent surgery. The victim stayed at the
hospital for a week, and thereafter stayed home for one month to recuperate.

In the investigation that immediately followed, the victim identified the petitioner as the person who
stabbed him. In court, the victim likewise positively identified the petitioner as his assailant.

The Defense’s Evidence

The defense presented the testimonies of the petitioner, Gener, and George Hipolito.

The petitioner denied that he stabbed the victim. While he admitted that he was present during the
fistfight between Gener and Comia, he claimed that he and Gener left as soon as the rumble started.
The petitioner testified that as he and Gener were running away from the scene (to get back to the
party), bottles and stones were being thrown at them.

Hipolito, a participant in the rumble and a member of the petitioner’s group, narrated that the rumble
happened fast and he was too busy defending himself to take note of everything that happened. He
testified that he did not see the petitioner and Gener during the fight. He also testified that the place
where the rumble took place was near a steel manufacturing shop which provided some light to the
area. He further testified that the victim was left alone at the scene and he alone faced the rival group.

The RTC Ruling

After considering the evidence, the trial court found the petitioner guilty beyond reasonable doubt of
frustrated homicide. It held, thus:

The bare statement of Giovani Serrano that he did not stab Anthony and he really does not know who
might have stabbed Anthony is outweighed by the positive identification by Anthony that Giovani
stabbed him frontally while they faced each other and also the circumstantial evidence pointing to him
as the wielder of the knife. Naturally, Giovani Serrano would feign ignorance as to who stabbed
Anthony but there is no way that he can avoid said direct and circumstantial evidences.8
Accordingly, the RTC decision disposed:

WHEREFORE, the prosecution having established the guilt of accused GIOVANI SERRANO Y
CERVANTES of the offense of FRUSTRATED HOMICIDE beyond reasonable doubt, this Court
finds him GUILTY thereof and hereby sentences him to undergo imprisonment of FOUR (4) YEARS,
TWO (2) MONTHS and ONE (1) DAY of prision correccional as minimum to TEN (10) YEARS
of prision mayor as maximum.

Accused Giovani Serrano is hereby ordered to reimburse to complainant Anthony Galang the medical
expenses incurred by the latter in his hospitalization and treatment of his injuries in the amount of
FIFTEEN THOUSAND PESOS (₱15,000.00) and loss of income for one (1) month in the amount of
FOUR THOUSAND PESOS (₱4,000.00) or the total amount of NINETEEN THOUSAND PESOS
(₱19,000.00).

Costs against the accused.

SO ORDERED.9

The petitioner appealed to the CA. He claimed that the inconsistencies in the victim’s testimony
rendered it incredible, but the RTC disregarded the claim. The RTC also disregarded the evidence that
the dimness of the light in the crime scene made it impossible for the victim to identify his assailant.

The CA Ruling

In its decision, the CA agreed with the RTC that the petitioner had been positively identified as the
victim’s assailant. The CA, however, ruled that the crime committed was attempted homicide, not
frustrated homicide. The CA ruled that the prosecution evidence failed to conclusively show that the
victim’s single stab wound was sufficient to cause death without timely medical intervention. In
support of its conclusion, the CA said that:

Thus, in Paddayuman v. People (G.R. No. 120344, 23 January 2002), appellant’s conviction for
attempted homicide was upheld because there was no evidence that the wounds suffered by the victim
were fatal enough as to cause her demise. Thus:

x x x petitioner stabbed the victim twice on the chest, which is indicative of an intent to kill. x x x This
can be gleaned from the testimony of Dr. Pintucan who did not categorically state whether or not the
wounds were fatal. x x x (I)n People v. Pilones, this Court held that even if the victim was wounded
but the injury was not fatal and could not cause his death, the crime would only be attempted.

Similarly, in the case of People v. Costales (G.R. No. 141154, 15 January 2002), where the offense
charged was frustrated murder, the trial court rendered a verdict of guilty for attempted murder
because the prosecution failed to present a medical certificate or competent testimonial evidence
which will prove that the victim would have died from her wound without medical intervention.
Citing People v. De La Cruz, the Supreme Court sustained the trial court and stressed that:

x x x the crime committed for the shooting of the victim was attempted murder and not frustrated
murder for the reason that "his injuries, though no doubt serious, were not proved fatal such that
without timely medical intervention, they would have caused his death.10

Thus, the CA modified the RTC decision. The dispositive portion of the CA decision reads:

WHEREFORE, with the MODIFICATIONS that:

1) Appellant is found GUILTY beyond reasonable doubt of the crime of ATTEMPTED HOMICIDE
and sentenced to suffer the indeterminate penalty of imprisonment of SIX (6) MONTHS of arresto
mayor as minimum to FOUR (4) YEARS and TWO (2) MONTHS of prision correccional, as
maximum;

2) The actual damages is REDUCED to ₱3,858.50; and

3) The award of loss earnings is DELETED,

The appealed decision is AFFIRMED in all other respects.

SO ORDERED.11

Undaunted, the petitioner filed this present petition.

The Issues

The petitioner raises the following issues for the Court’s consideration:

THE COURT OF APPEALS ERRED IN GIVING FULL FAITH AND CREDENCE TO THE
INCREDIBLE AND INCONSISTENT TESTIMONY OF THE PRIVATE COMPLAINANT.

THE COURT OF APPEALS ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF THE

WITNESSES FOR THE PROSECUTION, WHICH WERE BASED ON MERE SPECULATION
AND CONJECTURE.

THE COURT OF APPEALS GRAVELY ERRED IN OVERLOOKING THE FACT THAT THE
STABBING INCIDENT OCCURRED IN THE MIDDLE OF A STREET BRAWL, WHERE
ANYBODY OF THE NUMEROUS PARTICIPANTS COULD HAVE BEEN THE ASSAILANT.

THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT THE GUILT OF THE
ACCUSED-APPELLANT WAS PROVEN BEYOND REASONABLE DOUBT.12

The petitioner claims that the lower courts’ decisions were erroneous based on two-pronged
arguments – first, he cannot be convicted because he was not positively identified by a credible
testimony; and second, if he is criminally culpable, he can only be convicted of serious physical
injuries as the intent to kill the victim was not sufficiently proven.

The Court Ruling

We do not find merit in the petitioner’s arguments, and accordingly hold that the petition is devoid of
merit.

At the outset, we clarify that we shall no longer deal with the correctness of the RTC and the CA’s
appreciation of the victim’s identification of the petitioner as his assailant. This is a question of fact
that we cannot entertain in a Rule 45 review, save for exceptional reasons13 that must be clearly and
convincingly shown. As a rule, we accord the greatest respect for the findings of the lower courts,
especially the evaluation by the trial judge who had the distinct opportunity to directly hear and
observe the witnesses and their testimonies. As we explained in People v. Lucena 14 –

[It] has been consistently held by this Court that the matter of assigning values to declarations on the
witness stand is best and most competently performed by the trial judge, who had the unmatched
opportunity to observe the witnesses and to assess their credibility by the various indicia available but
not reflected in the record. The demeanor of the person on the stand can draw the line between fact
and fancy. The forthright answer or the hesitant pause, the quivering voice or the angry tone, the
flustered look or the sincere gaze, the modest blush or the guilty blanch – these can reveal if the
witness is telling the truth or lying through his teeth.15
In this regard, the petitioner cites an exception – the lower courts’ misappreciation of the testimonial
evidence. Due consideration of the records, however, does not support the petitioner’s position. We
find that the RTC and the CA did not err in their appreciation of the evidence.

The petitioner was positively identified

The RTC’s and CA’s conclusions on the petitioner’s positive identification are supported by ample
evidence. We consider in this regard the following pieces of evidence of the prosecution: (1) the
manner of attack which was done frontally and at close range, thus allowing the victim to see his
assailant; (2) the lighting conditions at the scene of the stabbing, provided by two Meralco posts; 16 the
scene was also illuminated by "white, fluorescent type" light coming from a steel manufacturing
shop;17 and (3) that the victim and the petitioner knew each other also allowed the victim to readily
identify the petitioner as his assailant.

The victim’s credibility is further strengthened by his lack of improper motive to falsely accuse the
petitioner of the crime. Human experience tells us that it is unnatural for a victim to accuse someone
other than his actual attacker; in the normal course of things, the victim would have the earnest desire
to bring the guilty person to justice, and no other. We consider, too, that the victim consistently and
positively, in and out of court, identified the petitioner as his assailant. The victim testified that the
petitioner was a neighbor who lived just a few houses away from his house.

We also take into account the evidence that the petitioner was the only one seen in possession of a
knife during the rumble. The victim testified that he saw the petitioner holding a knife which he used
to chase away others.18Prosecution witness Arceo testified that he also saw the petitioner wielding a
knife during the rumble.

Based on these considerations, we find the victim’s identification of the petitioner as his assailant to
be positive and conclusive.

In contrast, we find the inconsistencies attributed to the victim to be minor and insufficient to discredit
his testimony. These inconsistencies refer to extraneous matters that happened during the rumble, not
directly bearing on the stabbing. They do not likewise relate to the material elements of the crime.

We also cannot give any credit to the petitioner’s position that the victim’s failure to identify the
weapon used to stab him discredited his testimony. The victim’s failure to identify the weapon is
irrelevant under the circumstances, considering that the identity of the weapon is not an element of the
crime charged.

The intent to kill was sufficiently established

The petitioner posits that he can only be held liable for serious physical injuries since the intent to kill,
the necessary element to characterize the crime as homicide, was not sufficiently proven. The
assailant’s intent to kill is the main element that distinguishes the crime of physical injuries from the
crime of homicide. The crime can only be homicide if the intent to kill is proven.

Intent to kill is a state of mind that the courts can discern only through external manifestations, i.e.,
acts and conduct of the accused at the time of the assault and immediately thereafter. In Rivera v.
People,19 we considered the following factors to determine the presence of an intent to kill: (1) the
means used by the malefactors; (2) the nature, location, and number of wounds sustained by the
victim; (3) the conduct of the malefactors before, at the time, or immediately after the killing of the
victim; and (4) the circumstances under which the crime was committed and the motives of the
accused. We also consider motive and the words uttered by the offender at the time he inflicted
injuries on the victim as additional determinative factors.20

In this case, the records show that the petitioner used a knife in his assault. The petitioner stabbed the
victim in the abdomen while the latter was held by Gener and Orieta. Immediately after the stabbing,
the petitioner, Gener and Orieta beat and stoned the victim until he fell into a creek. It was only then
that the petitioner, Gener and Orieta left. We consider in this regard that the stabbing occurred at
around 9:30 p.m. with only the petitioner, Gener, Orieta, and the victim as the only persons left in the
area. The CA aptly observed that a reasonable inference can be made that the victim was left for dead
when he fell into the creek.

Under these circumstances, we are convinced that the petitioner, in stabbing, beating and stoning the
victim, intended to kill him. Thus, the crime committed cannot be merely serious physical injuries.

Frustrated homicide versus attempted homicide

Since the victim did not die, the issue posed to us is the stage of execution of the crime. The lower
courts differed in their legal conclusions.

On one hand, the RTC held that the crime committed reached the frustrated stage since the victim was
stabbed on the left side of his stomach and beaten until he fell into a creek.21 The RTC also took into
account that the victim had to be referred by the UP Infirmary to the East Avenue Medical Center for
medical treatment.22

On the other hand, the CA ruled that the crime committed only reached the attempted stage as there
was lack of evidence that the stab wound inflicted was fatal to cause the victim’s death.23 The CA
observed that the attending physician did not testify in court.24 The CA also considered that the
Medical Certificate and the Discharge Summary issued by the East Avenue Medical Center fell short
of "specifying the nature or gravity of the wound."25

Article 6 of the Revised Penal Code, as amended defines the stages of a felony in the following
manner:

ART. 6. Consummated, frustrated, and attempted felonies. – Consummated felonies, as well as those
which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and accomplishment are
present; and it is frustrated when the offender performs all the acts of execution which would produce
the felony as a consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of a felony directly by overt acts,
and does not perform all the acts of execution which should produce the felony by reason of some
cause or accident other than his own spontaneous desistance. [Emphasis and italics supplied.]

In Palaganas v. People,26 we made the following distinctions between frustrated and attempted felony
as follows:

1.) In frustrated felony, the offender has performed all the acts of execution which should produce the
felony as a consequence; whereas in attempted felony, the offender merely commences the
commission of a felony directly by overt acts and does not perform all the acts of execution.

2.) In frustrated felony, the reason for the non-accomplishment of the crime is some cause
independent of the will of the perpetrator; on the other hand, in attempted felony, the reason for the
non-fulfillment of the crime is a cause or accident other than the offender’s own spontaneous
desistance.27

The crucial point to consider is the nature of the wound inflicted which must be supported by
independent proof showing that the wound inflicted was sufficient to cause the victim’s death without
timely medical intervention.

In discussing the importance of ascertaining the degree of injury sustained by a victim and its
importance in determining criminal liability, the Court in People v. Matyaong, said:28

In considering the extent of injury done, account must be taken of the injury to the function of the
various organs, and also the danger to life. A division into mortal and nonmortal wounds, if it could be
made, would be very desirable; but the unexpected complications and the various extraneous causes
which give gravity to the simplest cases, and, on the other hand, the favorable termination of some
injuries apparently the most dangerous, render any such classification impracticable. The general
classification into slight, severe, dangerous, and mortal wounds may be used, but the possibility of the
slight wound terminating with the loss of the person’s life, and the apparently mortal ending with only
a slight impairment of some function, must always be kept in mind. x x x

The danger to life of any wound is dependent upon a number of factors: the extent of the injury, the
form of the wound, the region of the body affected, the blood vessels, nerves, or organs involved, the
entrance of disease-producing bacteria or other organisms into the wound, the age and constitution of
the person injured, and the opportunities for administering proper surgical treatment.

When nothing in the evidence shows that the wound would be fatal without medical intervention, the
character of the wound enters the realm of doubt; under this situation, the doubt created by the lack of
evidence should be resolved in favor of the petitioner. Thus, the crime committed should be
attempted, not frustrated, homicide.29

Under these standards, we agree with the CA’s conclusion. From all accounts, although the stab
wound could have been fatal since the victim testified that he saw his intestines showed, no exact
evidence exists to prove the gravity of the wound; hence, we cannot consider the stab wound as
sufficient to cause death. As correctly observed by the CA, the victim’s attending physician did not
testify on the gravity of the wound inflicted on the victim. We consider, too, the CA’s observation that
the medical certifications issued by the East Avenue Medical Center merely stated the location of the
wound.30 There was also no proof that without timely medical intervention, the victim would have
died.31 This paucity of proof must necessarily favor the petitioner.

The view from the "frustrated" stage of the crime gives the same results. The elements of frustrated
homicide are: (1) the accused intended to kill his victim, as manifested by his use of a deadly weapon
in his assault; (2) the victim sustained fatal or mortal wound/s but did not die because of timely
medical assistance; and (3) none of the qualifying circumstance for murder under Article 248 of the
Revised Penal Code, as amended, is present.32 Since the prosecution failed to prove the second
element, we cannot hold the petitioner liable for frustrated homicide.

The Penalty

Article 51 of the Revised Penal Code, as amended, provides that the imposable penalty for an
attempted crime shall be lower by two degrees than that prescribed by law for the consummated
felony.

Under Article 249, the crime of homicide is punished by reclusion temporal. Applying Article 61
(Rules of graduating penalties) and Article 71 (Graduated scales), two (2) degrees lower of reclusion
temporal is prision correccional which has a duration of six (6) months and one (1) day to six (6)
years.

Under the Indeterminate Sentence Law, the maximum term of the indeterminate sentence shall be
taken, in view of the attending circumstances that 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.33 Thus, the maximum term of the indeterminate sentence shall
be taken within the range of prision correccional, depending on the modifying circumstances. In turn,
the minimum term of the indeterminate penalty to be imposed shall be taken from the penalty one
degree lower of prision correccional, that is arresto mayor with a duration of one (1) month and one
(1) day to six (6) months.

In the absence of any modifying circumstance, the maximum term of the indeterminate penalty shall
be taken from the medium period of prision correccional or two (2) years and four (4) months and one
(1) day to four (4) years and two (2) months.34 The minimum term shall be taken within the range of
arresto mayor. Hence, the penalty imposed by the CA against the petitioner of six (6) months of
arresto mayor, as minimum term of the indeterminate penalty, to four (4) years and two (2) months of
prision correccional, as maximum term of the indeterminate penalty, is correct.

The Civil Liability

We modify the CA decision with respect to the petitioner’s civil liability. The CA ordered actual
damages to be paid in the amount of ₱3,858.50. This is erroneous and contrary to the prevailing
jurisprudence.

In People v. Andres,35 we held that if the actual damages, proven by receipts during the trial, amount
to less than ₱25,000.00, the victim shall be entitled to temperate damages in the amount of
₱25,000.00, in lieu of actual damages. The award of temperate damages is based on Article 2224 of
the New Civil Code which states that temperate or moderate damages may be recovered when the
court finds that some pecuniary loss was suffered but its amount cannot be proven with certainty. In
this case, the victim is entitled to the award of ₱25,000.00 as temperate damages considering that the
amount of actual damages is only ₱3,858.50. The amount of actual damages shall be deleted.

Lastly, we find that the victim is also entitled to moral damages in the amount of ₱10,000.00 in
accordance with settled jurisprudence.36 Under Article 2219, paragraph 1 of the New Civil Code, the
victim is entitled to moral damages in a criminal offense resulting in physical injuries.1avvphi1

WHEREFORE, we hereby DENY the petition. The decision, dated July 20, 2006, of the Court of
Appeals in CA-G.R. CR No. 29090, finding petitioner Giovani Serrano y Cervantes guilty beyond
reasonable doubt of Attempted Homicide, is AFFIRMED with MODIFICATION. The petitioner is
ORDERED to PAY the victim, Anthony Galang, the following amounts:

(1) ₱25,000.00 as temperate damages; and

(2) ₱10,000.00 as moral damages.

Costs against the petitioner.

SO ORDERED.

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
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.

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.

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

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

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

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

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.

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

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.

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.

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.

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:

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

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.

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

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

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
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

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.23Hence, 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.
G.R. No. 220598, July 19, 2016
GLORIA MACAPAGAL-ARROYO, Petitioner, v. PEOPLE OF THE PHILIPPINES AND THE SANDIGANBAYAN (FIRST
DIVISION), Respondents.

G.R. No. 220953

BENIGNO B. AGUAS, Petitioner, v. SANDIGANBAYAN (FIRST DIVISION), Respondent.

DECISION
BERSAMIN, J.:

We resolve the consolidated petitions for certiorari separately brought to assail and annul the resolutions issued on April 6,
20151 and September 10, 2015,2 whereby the Sandiganbayan respectively denied their demurrer to evidence, and their motions
for reconsideration, asserting such denials to be tainted with grave abuse of discretion amounting to lack or excess of
jurisdiction.

Antecedents

On July 10, 2012, the Ombudsman charged in the Sandiganbayan former President Gloria Macapagal-Arroyo (GMA); Philippine
Charity Sweepstakes Office (PCSO) Budget and Accounts Officer Benigno Aguas; PCSO General Manager and Vice Chairman
Rosario C. Uriarte; PCSO Chairman of the Board of Directors Sergio O. Valencia; Members of the PCSO Board of Directors,
namely: Manuel L. Morato, Jose R. Taruc V, Raymundo T. Roquero, and Ma. Fatima A.S. Valdes; Commission on Audit (COA)
Chairman Reynaldo A. Villar; and COA Head of Intelligence/Confidential Fund Fraud Audit Unit Nilda B. Plaras with plunder. The
case was docketed as Criminal Case No. SB-12-CRM-0174 and assigned to the First Division of the Sandiganbayan.

The information3 reads: chanRoblesv irt ual Lawlib rary

The undersigned Assistant Ombudsman and Graft Investigation and Prosecution Officer III, Office of the Ombudsman, hereby
accuse GLORIA MACAPAGAL-ARROYO, ROSARIO C. URIARTE, SERGIO O. VALENCIA, MANUEL L. MORATO, JOSE R. TARUC V,
RAYMUNDO T. ROQUERO, MA. FATIMA A.S. VALDES, BENIGNO B. AGUAS, REYNALDO A. VILLAR and NILDA B. PLARAS, of the
crime of PLUNDER, as defined by, and penalized under Section 2 of Republic Act (R.A.) No. 7080, as amended by R.A. No.
7659, committed, as follows:

That during the period from January 2008 to June 2010 or sometime prior or subsequent thereto, in Quezon City, Philippines,
and within the jurisdiction of this Honorable Court, accused GLORIA MACAPAGAL-ARROYO, then the President of the Philippines,
ROSARIO C. URIARTE, then General Manager and Vice Chairman, SERGIO O. VALENCIA, then Chairman of the Board of
Directors, MANUEL L. MORATO, JOSE R. TARUC V, RAYMUNDO T. ROQUERO, MA. FATIMA A.S. VALDES, then members of the
Board of Directors, BENIGNO B. AGUAS, then Budget and Accounts Manager, all of the Philippine Charity Sweepstakes Office
(PCSO), REYNALDO A. VILLAR, then Chairman, and NILDA B. PLARAS, then Head of Intelligence/Confidential Fund Fraud Audit
Unit, both of the Commission on Audit, all public officers committing the offense in relation to their respective offices and taking
undue advantage of their respective official positions, authority, relationships, connections or influence, conniving, conspiring
and confederating with one another, did then and there willfully, unlawfully and criminally amass, accumulate and/or acquire.
Directly or indirectly, ill-gotten wealth in the aggregate amount or total value of THREE HUNDRED SIXTY FIVE MILLION NINE
HUNDRED NINETY SEVEN THOUSAND NINE HUNDRED FIFTEEN PESOS (PHP365,997,915.00), more or less, through any or a
combination or a series of overt or criminal acts, or similar schemes or means, described as follows:

(a) diverting in several instances, funds from the operating budget of PCSO to its Confidential/Intelligence
Fund that could be accessed and withdrawn at any time with minimal restrictions, and converting,
misusing, and/or illegally conveying or transferring the proceeds drawn from said fund in the
aforementioned sum, also in several instances, to themselves, in the guise of fictitious expenditures,
for their personal gain and benefit;

(b) raiding the public treasury by withdrawing and receiving, in several instances, the above-mentioned
amount from the Confidential/Intelligence Fund from PCSO's accounts, and or unlawfully transferring or
conveying the same into their possession and control through irregularly issued disbursement vouchers
and fictitious expenditures; and

(c) taking advantage of their respective official positions, authority, relationships, connections or influence,
in several instances, to unjustly enrich themselves in the aforementioned sum, at the expense of, and
the damage and prejudice of the Filipino people and the Republic of the Philippines.

CONTRARY TO LAW. cralawred

By the end of October 2012, the Sandiganbayan already acquired jurisdiction over GMA, Valencia, Morato and Aguas. Plaras, on
the other hand, was able to secure a temporary restraining order (TRO) from this Court in Plaras v. Sandiganbayan docketed as
G.R. Nos. 203693-94. Insofar as Roquero is concerned, the Sandiganbayan acquired jurisdiction as to him by the early part of
2013. Uriarte and Valdes remained at large.

Thereafter, several of the accused separately filed their respective petitions for bail. On June 6, 2013,
the Sandiganbayan granted the petitions for bail of Valencia, Morato and Roquero upon finding that the evidence of guilt against
them was not strong.4 In the case of petitioners GMA and Aguas, the Sandiganbayan, through the resolution dated November 5,
2013, denied their petitions for bail on the ground that the evidence of guilt against them was strong.5 The motions for
reconsideration filed by GMA and Aguas were denied by the Sandiganbayan on February 19, 2014.6 Accordingly, GMA assailed
the denial of her petition for bail in this Court, but her challenge has remained pending and unresolved to date.

Personal jurisdiction over Taruc and Villar was acquired by the Sandiganbayan in 2014. Thereafter, said accused sought to be
granted bail, and their motions were granted on different dates, specifically on March 31, 20147 and May 9, 2014,8 respectively.

The case proceeded to trial, at which the State presented Atty. Aleta Tolentino as its main witness against all the accused.
The Sandiganbayan rendered the following summary of her testimony and evidence in its resolution dated November 5, 2013
denying the petitions for bail of GMA and Aguas, to wit:chanRobl esvirt ual Lawlib rary

She is a certified public accountant and a lawyer. She is a member of the Philippine Institute of Certified Public Accountants and
the Integrated Bar of the Philippines. She has been a CPA for 30 years and a lawyer for 20 years. She has practiced accountancy
and law. She became accounting manager of several companies. She has also taught subjects in University of Santo Tomas,
Manuel L. Quezon University, Adamson University and the Ateneo de Manila Graduate School. She currently teaches Economics,
Taxation and Land Reform.

Presently, she is a Member of the Board of Directors of the PCSO. The Board appointed her as Chairman of an Audit Committee.
The audit review proceeded when she reviewed the COA Annual Reports of the PCSO for 2006, 2007, 2008 and 2009 (Exhibits
"D", "E", "F" and "G", respectively), and the annual financial statements contained therein for the years 2005 to 2009. The
reports were given to them by the COA. These are transmitted to the PCSO annually after the subject year of audit.

One of her major findings was that the former management of the PCSO was commingling the charity fund, the prize fund and
the operating fund. By commingling she means that the funds were maintained in only one main account. This violates Section 6
of Republic Act 1169 (PCSO Charter) and generally accepted accounting principles.

The Audit Committee also found out that there was excessive disbursement of the Confidential and Intelligence Fund (CIF).
There were also excessive disbursements for advertising expenses. The internal audit department was also merged with the
budget and accounting department, which is a violation of internal audit rules.

There was excessive disbursement of the CIF because the PCSO was given only P10 million in 2002, i.e. P5 million for the Office
of the Chairman and P5 million for the Office of the General Manager. Such allocation was based on the letters of then Chairman
Lopez (Exh. "I") and then General Manager Golpeo (Exh. "J"), asking for P5 million intelligence fund each. Both were dated
February 21, 2000, and sent to then President Estrada, who approved them. This allocation should have been the basis for the
original allocation of the CIF in the PCSO, but there were several subsequent requests made by the General Manager during the
time of, and which were approved by, former President Arroyo.

The allocation in excess of P10 million was in violation of the PCSO Charter. PCSO did not have a budget for this. They were
working on a deficit from 2004 to 2009. The charter allows only 15% of the revenue as operating fund, which was already
exceeded. The financial statements indicate that they were operating on a deficit in the years 2006 to 2009.

It is within the power of the General Manager to ask for additional funds from the President, but there should be a budget for it.
The CIF should come from the operating fund, such that, when there is no more operating fund, the other funds cannot be used.

The funds were maintained in a commingled main account and PCSO did not have a registry of budget utilization. The excess
was not taken from the operating fund, but from the prize fund and the charity fund.

In 2005, the deficit was P916 million; in 2006, P1,000,078,683.23. One of the causes of the deficit for 2006 was the CIF
expense of P215 million, which was in excess of the approved allocation of P10 million. The net cash provided by operating
expenses in 2006 is negative, which means that there were more expenses than what was received.

In the 2007 COA report, it was found that there was still no deposit to the prize and charity funds. The COA made a
recommendation regarding the deposits in one main account. There were also excessive disbursements of CIF amounting to
P77,478,705.

She received a copy of the PCSO corporate operating budget (COB) for the year 2008 in 2010 because she was already a
member of its Board of Directors. The 2008 approved COB has a comparative analysis of the actual budget for 2007 (Exh. "K").
It is stated there that the budget for CIF in 2007 is only P25,480,550. But the financial statements reflect P77 million. The
budget was prepared and signed by then PCSO General Manager Rosario Uriarte. It had accompanying Board Resolution No.
305, Series of 2008, which was approved by then Chairperson Valencia, and board members Valdes, Morato, Domingo, and
attested to by Board Secretary Atty. Ronald T. Reyes.

In the 2008 COA report, it was noted that there was still no deposit to the prize and charity funds, adverted in the 2007 COA
report. There was already a recommendation by the COA to separate the deposits or funds in 2007. But the COA noted that this
was not followed. The financial statements show the Confidential and the Extra-Ordinary Miscellaneous Expenses account is
P38,293,137, which is more than the P10 million that was approved.

In the Comparative Income Statement (Exh. "K"), the 2008 Confidential/Intelligence Expense budget was approved for P28
million. The Confidential and Extra-Ordinary Miscellaneous Expenses is the account being used for confidential and intelligence
expenses. The amount in the financial statements is over the budgeted amount of P28 million. Further, the real disbursement is
more than that, based on a summary of expenditures she had asked the treasurer to prepare.

In the Comparative Income Statement for 2009 Budget against the 2008 Actual Budget (Exh. "L"), the budget for CIF and
expenses was P60 million.

In the 2009 COA report, it was noted that there was still no deposit to the prize and charity funds, despite the instruction or
recommendation of COA. The funds were still deposited in one account. The COA observation in 2007 states that there is
juggling or commingling of funds.

After she had concluded the audit review, she reported her findings to the Board of Directors in one of their executive meetings.
The Board instructed her to go in-depth in the investigation of the disbursements of CIF.

The Audit Committee also asked Aguas why there were disbursements in excess of P10 million. He explained that there were
board resolutions confirming additional CIF which were approved by former President Arroyo. Aguas mentioned this in one of
their meetings with the directors and corporate secretary. The board secretary, Atty. Ed Araullo, gave them the records of those
resolutions.

In the records that Araullo submitted to her, it appears that Uriarte would ask for additional CIF, by letter and President Arroyo
approves it by affixing her signature on that same letter-request. There were seven letters or memoranda to then President
Arroyo, with the subject "Request for Intelligence Fund."

She then asked their Treasurer, Mercy Hinayon, to give her a summary of all the disbursements from CIF from 2007 to 2010.
The total of all the amounts in the summaries for three years is P365,997,915.

After receiving the summaries of the disbursed checks, she asked Hinayon to give her the checks or copies thereof. She also
asked Dorothy Robles, Budget and Accounting Manager, to give her the corresponding vouchers. Only two original checks were
given to her, as the rest were with the bank. She asked her to request certified true copies of the checks.

They were then called to the Senate Blue Ribbon Committee, which was then investigating the operation of PCSO, including the
CIF. She was invited as a resource speaker in an invitation from Chairman Tcoilsto Guingona III (Exh. "DD"). Before the hearing,
the Committee Chairman went to the PCSO and got some documents regarding the subject matter being investigated. Araullo
was tasked to prepare all the documents needed by the Committee. These documents included the CIF summary of
disbursements, letters of Uriarte and the approval of the former president.

She attended whenever there were committee hearings. Among those who also attended were the incoming members if the
PCSO Board Directors and the directors. Accused Valencia and Aguas were also present in some hearings as resources speakers.
They were invited in connection with the past disbursements of PCSO related to advertising expenses, CIF, vehicles for the
bishops, and the commingling of funds.

The proceedings in the Committee were recorded and she secured a copy of the transcript of stenographic notes from the Office
of the Blue Ribbon Committee. In the proceeding on June 7, 2011 (Exh. "EE"), Uriarte testified. The witness was about two to
three meters away from Uriarte when the latter testified, and using a microphone.

According to the witness, Uriarte testified that all the confidential intelligence projects she had proposed were approved by
President Arroyo; all the requests she gave to the President were approved and signed by the latter personally in her (Uriarte's)
presence; and all the documents pertaining to the CIF were submitted to President Arroyo. On the other hand, Valencia and
Taruc said they did not know about the projects. Statements before the Committee are under oath.

After the Committee hearings, she then referred to the laws and regulations involved to check whether the disbursements were
in accordance with law. One of the duties and responsibilities of the audit committee was to verify compliance with the laws.

She considered the following laws: R.A. 1169, as amended (PCSO Charter); P.D. 1445 (COA Code); LOI 1282; COA Circular 92-
385, as amended by Circular 2003-002, which provides the procedure for approval of disbursements and liquidation of
confidential intelligence funds. She made a handwritten flowchart (Exh. "II") of the allocations/disbursements/liquidation and
audit of the CIF, based on LOI 1282 and the COA Circulars. A digital presentation of this flowchart was made available.

The first step is the provision or allotment of a budget because no CIF fund can be disbursed without the allocation. This is
provided in the second whereas clause of Circular 92-385. For GOCCs, applying Circular 2003-002, there must be allocation or
budget for the CIF and it should be specifically in the corporate operating budget or would be taken from savings authorized by
special provisions.

This was not followed in the PCSO CIF disbursement in 2008. The disbursement for that year was P86,555,060. The CIF budget
for that year was only P28 million, and there were no savings because they were on deficit. This was also not followed for the
year 2009. The CIF disbursement for that year was P139,420,875. But the CIF budget was only P60 million, and there was also
no savings, as they were in deficit. For the year 2010, the total disbursement, as of June 2010, was P141,021,980. The budget
was only P60 million.

The requirements in the disbursement of the CIF are the budget and the approval of the President. If the budget is correct, the
President will approve the disbursement or release of the CIF. In this case, the President approved the release of the fund
without a budget and savings. Also, the President approved the same in violation of LOI 1282, because there were no detailed
specific project proposals and specifications accompanying the request for additional CIF. The requests for the year 2008, 2009
and 2010 were uniform and just enumerated the purposes, not projects. They did not contain what was required in the LOI.

The purpose of this requirement is stated in the LOI itself. The request for allocations must contain full details and specific
purposes for which the fund will be used. A detailed presentation is made to avoid duplication of expenditures, as what had
happened in the past, because of a lack of centralized planning and organization or intelligence fund.

There was no reason for each additional intelligence fund that was approved by then President Arroyo.

The third step is the designation of the disbursing officer. In this case, the Board of Directors designated Uriarte as Special
Disbursing Officer (SDO) for the portion of the CIF that she withdrew. For the portion withdrawn by Valencia, there was no
special disbursing officer designated on record.

The designation of Uriarte was in violation of internal control which is the responsibility of the department head, as required by
Section 3 of Circular 2003-002. When she went through copies of the checks and disbursement vouchers submitted to her, she
found out that Uriarte was both the SDO and the authorized officer to sign the vouchers and checks. She was also the payee of
the checks. All the checks withdrawn by Uriarte were paid to her and she was also the signatory of the checks.

Aside from Uriarte, Valencia also disbursed funds in the CIF. For the funds withdrawn by Valencia, he was also the authorized
officer to sign the vouchers and checks. He was also the payee of the checks.

The confidential funds were withdrawn through cash advance. She identified the vouchers and checks pertaining to the
disbursements made by Uriarte and Valencia in 2008, 2009 and 2010.

The checks of Uriarte and Valencia had the treasurer as cosignatory. The treasurer who signed depends on when the checks
were issued

She knows the signatures of Uriarte, Valencia and Aguas because they have their signatures on the records.

Uriarte and Valencia signed the vouchers to certify to the necessity and legality of the vouchers; they also signed to approve the
same, signify they are "okay" for payment and claim the amount certified and approved as payee. Gloria P. Araullo signed as
releasing officer, giving the checks to the claimants.

Accused Aguas signed the vouchers to certify that there are adequate funds and budgetary allotment, that the expenditures
were properly certified and supported by documents, and that the previous cash advances were liquidated and accounted for.
This certification means that the cash advance voucher can be released. This is because the COA rule on cash advance is that
before any subsequent cash advance is released, the previous cash advance must be liquidated first. This certification allowed
the requesting party and payee to get the cash advance from the voucher. Without this certification, Uriarte and Valencia could
not have been able to get the cash advance. Otherwise, it was a violation of P.D. 1445 (Government Auditing Code).

The third box in the flowchart is the designation of the SDO. Board Resolutions No. 217, Series of 2009 (Exh."M"), No. 2356,
Series of 2009 (Exh."N"), and No. 029, Series of 2010 (Exh. "O"), resolved to designate Uriarte as SDO for the CIF. These
resolutions were signed and approved by Valencia, Taruc, Valdes, Uriarte, Roquero and Morato. The witness is familiar with
these persons' signature because their signatures appear on PCSO official records.

Valencia designated himself as SDO upon the recommendation of COA Auditor Plaras. There was no board resolution for this
designation. There was just a certification dated February 2, 2009 (Exh. "Z4"). This certification was signed by Valencia himself
and designates himself as the SDO since he is personally taking care of the funds which are to be handled with utmost
confidentiality. The witness is familiar with Valencia's signature because it appears on PCSO official documents. Under COA rules,
the Board of Directors has authority to designate the SDO. The chairman could not do this by himself.

Plaras wrote a letter dated December 15, 2008 to Valencia. It appears in the letter that to substantiate the liquidation report,
Plaras told Valencia to designate himself as SDO because there was no disbursing officer. It was the suggestion of Plaras. Plaras
is the head of the CIF Unit under then COA Chairman Villar. Liquidation vouchers and supporting papers were submitted to
them, with corresponding fidelity bond.

COA Circulars 92-385 and 2003-002 indicate that to disburse CIF, one must be a special disbursing officer or SDO. All disbursing
officers of the government must have fidelity bonds. The bond is to protect the government from and answer for
misappropriation that the disbursing officer may do. The bond amount required is the same as the amount that may be
disbursed by the officer. It is based on total accountability and not determined by the head of the agency as a matter of
discretion. The head determines the accountability which will be the basis of the bond amount.

The Charter states that the head of the agency is the Board of Directors, headed by the Chairman. But now, under the
Governance of Government Corporation law, it is the general manager.

Plaras should have disallowed or suspended the cash advances because there was no fidelity bond and the disbursing officer was
not authorized. There was no bond put up for Valencia. The records show that the bond for Uriarte was only for the amount of
P1.5 million. This is shown in a letter dated August 23, 2010, to COA Chairman Villar through Plaras from Aguas (Exh. "B5"),
with an attachment from the Bureau of Treasury, dated March 2, 2009. It appears there that the bond for Uriarte for the CIF
covering the period February 2009 to February 2010 was only P1.5 million.

Aguas submitted this fidelity bond certification, which was received on August 24, 2010, late, because under the COA Circulars,
it should have been submitted when the disbursing officer was designated. It should have been submitted to COA because a
disbursing officer cannot get cash advances if they do not have a fidelity bond.

Once an SDO is designated, the specimen signature must be submitted to COA, together with the fidelity bond and the
signatories for the cash advances.

The approval of the President pertains to the release of the budget, not its allocation. She thinks the action of the Board was
done because there was no budget. The Board's confirmation was needed because it was in excess of the budget that was
approved. They were trying to give a color of legality to them approval of the CIF in excess of the approved corporate operating
budget. The Board approval was required for the amount to be released, which amount was approved in excess of the allotted
budget for the year. The President cannot approve an additional amount, unless there is an appropriation or a provision saying a
particular savings will be used for the CIF. The approvals here were all in excess of the approved budget.
Cash advances can be given on a per project basis for CIF. For one to get a cash advance, one must state what the project is as
to that cash advance. No subsequent cash advance should be given, until previous cash advances have been liquidated and
accounted for. If it is a continuing project, monthly liquidation reports must be given. The difference in liquidation process
between CIF and regular cash advances is that for CIF, the liquidation goes to the Chair and not to the resident auditor of the
agency or the GOCC. All of the liquidation papers should go to the COA Chair, given on a monthly basis.

In this case, the vouchers themselves are couched generally and just say cash advance from CIF of the Chairman or from the
GM's office in accordance with her duties. There is no particular project indicated for the cash advance. Also, the requirement
that prior advances be liquidated first for subsequent advances to be given was not followed. The witness prepared a summary
of the cash advances withdrawn by the two disbursing officers covering the years 2008, 2009 and 2010 (Exh. "D5"). The basis
for this summary is the record submitted to them by Aguas, which were supposedly submitted to COA. It shows that there were
subsequent cash advances, even if a prior advance has not yet been liquidated. Valencia submitted liquidation reports to Villar,
which consists of a letter, certification and schedule of cash advances, and liquidation reports. One is dated July 24, 2008 (Exh.
"G5") and another is dated February 13, 2009 (Exh. "H5").

When she secured Exhibit "G5", together with the attached documents, she did not find any supporting documents despite the
statement in Exhibit "G5" that the supporting details of the expenses that were incurred from the fund can be made available, if
required. Aguas, the person who processed the cash advances said he did not have the details or supporting details of
documents of the expenditures.

Normally, when liquidating CIF, the certification of the head of the agency is necessary. If there were vouchers or receipts
involved, then all these should be attached to the liquidation report. There should also be an accomplishment report which
should be done on a monthly basis. All of these should be enclosed in a sealed envelope and sent to the Chairman of the COA,
although the agency concerned must retain a photocopy of the documents. The report should have a cover/transmittal letter
itemizing the documents, as well as liquidation vouchers and other supporting papers. If the liquidation voucher and the
supporting papers are in order, then the COA Chairman or his representative shall issue a credit memorandum. Supporting
papers consist of receipts and sales invoices. The head of the agency would have to certify that those were all actually incurred
and are legal. In this case, there were no supporting documents submitted with respect to Valencia's cash advances in 2008.
Only the certifications by the SDO were submitted. These certifications stated that he has the documents in his custody and they
can be made available, if and when necessary.

When she reviewed the CIF, she asked Aguas to produce the supporting documents which were indicated in Valencia's
certification and Aguas's own certification in the cash advance vouchers, where he also certified that the documents supporting
the cash advance were in their possession and that there was proper liquidation. Aguas replied that he did not have them.

She identified the letter of Uriarte to Villar dated July 24, 2008 as well as a transmittal letter by Uriarte for August 1, 2008, a
certification and schedule of cash advances and an undetailed liquidation report. Among the attachments is Board Resolution
305, a copy of the COB for 2008, a document for the second half of 2008, a document dated April 2, 2009, and a document for
liquidation of P2,295,000. She also identified another letter for P50 million, dated February 13, 2009, attached to the transmittal
letter. There is a certification attached to those two letters amounting to P2,295,000. Also attached is the schedule of cash
advances by Aguas and a liquidation report where Aguas certified that the supporting documents are complete and proper
although the supporting documents and papers are not attached to the liquidation report, only the general statement. These
documents were submitted to them by Aguas.

She was shown the four liquidation reports (Exhibits "M5", "N5", "O5" and "P5") attached to the transmittal letter and was asked
whether they were properly and legally accomplished. She replied that they were couched in general terms and the voucher for
which the cash advance was liquidated is not indicated and only the voucher number is specified. She adds that the form of the
liquidation is correct, but the details are not there and neither are the supporting papers.

The liquidation report was dated July 24, 2008, but it was submitted only on August 1, 2008 to COA, and it supposedly covered
the cash advances of Uriarte from January to May 2008. This is stated in her summary of liquidation that was earlier marked.
There were no supporting papers stated on or attached to the liquidation report.

She identified a set of documents to liquidate the cash advances from the CIF for the second semester of 2008 by Uriarte. The
transmittal letter of Uriarte was received by the COA on April 2, 2009. Upon inquiry with Aguas, he said that he did not have any
of the supporting papers that he supposedly had according to the certification. According to him, they are with Uriarte. Uriarte,
on the other hand, said, during the Senate hearing, that she gave them to President Arroyo.

When Plaras wrote Valencia on December 15, 2008, Aguas wrote back on behalf of Valencia, who had designated himself as
SDO. However, their designations, or in what capacity they signed the voucher are not stated. Among the attachments is also a
memorandum dated April 2, 2008 (Exhibit "P5"), containing the signature of Arroyo, indicating her approval to the utilization of
funds. Another memorandum, dated August 13, 2008, indicating the approval of Arroyo was also attached to the transmittal
letter of Aguas on April 4, 2009. These two memoranda bear the reasons for the cash advances, couched in general terms. The
reasons were donated medicines that were sold and authorized expenditures on endowment fund. The reasons stated in the
memoranda are practically the same. Uriarte did not submit any accomplishment reports regarding the intelligence fund. Aguas
submitted an accomplishment report, but the accomplishments were not indicated in definite fashion or with specificity.

The witness narrated, based on her Summary of Liquidation Reports in 2009, that the total cash advance made by Uriarte was
P132,760,096. Arroyo approved P90 million for release. P10 million in January 2009 and April 27, 2009, and then P50 million in
May 6, 2009 in July 2, 2009, P10 million or a total of P70 million. In October 2009, P20 million or a total of P90 million. The
amount that was cash advanced by Valencia was P5,660,779. Therefore, the total cash advances by these two officials were
P138,420,875, but all of these were never liquidated in 2009. Uriarte and Valencia only submitted a liquidation voucher and a
report to COA on April 12, 2010. For the January 22, 2009 disbursements, the date of the liquidation voucher was June 30,
2009, but it was submitted to COA on April 12, 2010. Witness identified the transmittal letter for P28 million by Uriarte, dated
October 19, 2009, which was received by the COA only on April 12, 2010, with an accompanying certification from Uriarte as to
some of the documents from which the witness's Summary of Liquidation was based.

The cash advances made by Uriarte and Valencia violated par. 1, Sec. 4 and Sec. 84 of P.D. 1445 and par. 2, III, COA Circular
No. 92-385.

Since these cash advances were in excess of the appropriation, in effect, they were disbursed without any appropriation. These
cash advances were also made without any specific project, in violation of par. 2 of COA Circular No. 92-385. In this case, the
cash advances were not for a specific project. The vouchers only indicate the source of the fund. The vouchers did not specify
specific projects.
The total cash advances for the years 2008, 2009 and 2010 to accused Uriarte and Valencia is more than P366,000,000.
Valencia cash advanced P13.3 million. The rest was made by Uriarte.

The memoranda to President Arroyo stated only the problems encountered by the PCSO. These problems, as stated in each
memorandum, included donated medicines sometimes ending up in store for sale, unofficial use of ambulances, rise of
expenditures of endowment fund, lotto sweepstakes scams, fixers for programs of the PCSO, and other fraudulent schemes. No
projects were mentioned.

As regards the sixth step - the credit notice, the same was not validly issued by the COA. The credit notice is a settlement or an
action made by the COA Auditors and is given once the Chairman, in the case of CIF Fund, finds that the liquidation report and
all the supporting papers are in order. In this case, the supporting papers and the liquidation report were not in order, hence,
the credit notice should not have been issued. Further, the credit notice has to follow a specific form. The COA Chairman or his
representative can: 1) settle the cash advance when everything is in order; 2) suspend the settlement if there are deficiencies
and then ask for submission of the deficiencies; or 3) out rightly disallow it in case said cash advances are illegal, irregular or
unconscionable, extravagant or excessive. Instead of following this form, the COA issued a document dated January 10, 2011,
which stated that there is an irregular use of the price fund and the charity fund for CIF Fund. The document bears an
annotation which says, "wait for transmittal, draft" among others. The document was not signed by Plaras, who was the Head of
the Confidential and Intelligence Fund Unit under COA Chairman Villar. Instead, she instructed her staff to "please ask Aguas to
submit the supplemental budget." This document was not delivered to PCSO General Manager J.M. Roxas. They instead received
another letter dated January 13, 2011 which was almost identical to the first document, except it was signed by Plaras, and the
finding of the irregular use of the prize fund and the charity fund was omitted. Instead, the work "various" was substituted and
then the amount of P137,500,000. Therefore, instead of the earlier finding of irregularity, suddenly, the COA issued a credit
notice as regards the total of P140,000,000. The credit notice also did not specify that the transaction had been audited,
indicating that no audit was made.

A letter dated May 11, 2009 from the COA and signed by Plaras, states that the credit notice is hereby issued. Thus, it is
equivalent to the credit notice, although it did not come in the required form. It merely stated that the credit notice is issued for
P29,700,000, without specifying for which vouchers and for which project the credit notice was being given. It merely says "First
Semester of 2008". In other words, it is a "global" credit notice that she issued and it did not state that she made an audit.

Another letter, dated July 14, 2010 and signed by Plaras, supposedly covers all the cash advances in 2009, but only up to the
amount of P116,386,800. It also did not state that an audit was made.

There were no supporting papers attached to the voucher, and the certification issued is not in conformity with the required
certification by COA Circular 2003-002. The certification dated July 24, 2008 by Valencia was not in conformity with the
certification required by COA. The required form should specify the project for which the certification was being issued, and file
code of the specific project. The certification dated July 24, 2008, however, just specified that it was to certify that the P2 million
from the 2008 CIF Fund was incurred by the undersigned, in the exercise of his functions as PCSO Chairman for the various
projects, projects and activities related to the operation of the office, and there was no specific project or program or file code of
the intelligence fund, as required by COA. Furthermore, the certification also did not contain the last paragraph as required by
COA. Instead, the following was stated in the certification: "He further certifies that the details and supporting documents and
papers on these highly confidential missions and assignments are in our custody and kept in our confidential file which can be
made available if circumstances so demand." No details or supporting documents were reviewed by the witness, and though she
personally asked Aguas, the latter said that he did not have the supporting papers, and they were not in the official files of the
PCSO. Two people should have custody of the papers, namely, The Chairman of COA and the PCSO or its Special Disbursing
Officer. The witness asked Aguas because Valencia was not there, and also because Aguas was the one who made the
certification and was in-charge of accounting. The vouchers, supposedly certified by Aguas, as Budget and Accounting
Department Manager, each time cash advances were issued, stated that the supporting documents are complete, so the witness
went to him to procure the documents.

A certification dated February 13, 2009, stating that P2,857,000 was incurred by Valencia in the exercise of his function as PCSO
Chairman, related to the operations of his office without the specific intelligence project. In the same document, there is a
certification similar to one in the earlier voucher. No details of this certification were submitted by Aguas.

Another certification dated July 24, 2008 was presented, and it also did not specify the intelligence and confidential project, and
it did not contain any certification that the amount was disbursed legally or that no benefits was given to any person. Similarly,
the fourth paragraph of the same document states that Uriarte certified that details and supporting papers of the cash advance
that she made of P27,700,000 are "kept in their confidential" (sic). The same were not in the PCSO official records.

The certification dated October 19, 2009 for the amount of P2,498,300, was submitted to the witness by Aguas. It also did not
conform to the COA requirements, as it also did not specify the use of the cash advance, did not contain any certification that
the cash advance was incurred for legal purposes, or that no benefits to other people were paid out of it. Again, no supporting
documents were found and none were given by Aguas. Similarly, a certification dated February 8, 2010 for the amount of
P2,394,654 was presented, and it also does not conform with the COA circular, as it only stated that the amount was spent or
incurred by Valencia for projects covering the period of July 1 to December 31, 2009 to exercise his function as PCSO Chairman,
thus no particular intelligence fund or project was stated. As in the other certifications, though it was stated that the details were
in the confidential file, it appeared that these were not in the possession of PCSO. Another certification dated October 19, 2009
submitted by Uriarte was examined by the witness in the course of her audit, and found that it also did not conform to the
requirements, as it only stated that the P25 million and P10 million intelligence and confidential fund dated January 29, 2009
and April 27, 2009 were used in the exercise of her function as PCSO Vice Chairman and General Manager.

All the documents were furnished by Aguas during the course of the audit of the financial transactions of PCSO. Other
documents given by Aguas include a letter by Valencia to COA Chairman Villar, which was attached to the letter dated July 24,
2008. For the Certification issued by Valencia for P2,857,000, there was also a certification attached dated February 13, 2009.
As to Exhibit "J5", together with the certification, there was a letter but no other documents were submitted. Similarly, as to
Exhibit "M6", it was attached to a letter dated October 19, 2009 and was submitted to the witness by Aguas. Exhibit "N6" was
attached to the letter of Valencia dated February 8, 2010, the October 19, 2009 certification was attached to the October 19,
2009 letter to Chairman Villar.

The certification dated June 29, 2010, signed by Valencia in the amount of P2,075,000, also does not conform with the COA
requirement as it only specifies that the fund was disbursed by Valencia under his office for various programs in the exercise of
his function as Chairman. Though there was a certification that the supporting papers were kept in the office, these papers were
not found in the records of the PCSO and Aguas did not have any of the records. The certification was attached to the letter of
Valencia to Villar dated June 29, 2010.

In the certification dated June 29, 2010 signed by Uriarte in the amount of P137,500,000, the witness also said that the
certification did not conform to the COA Circular because it only stated that the amount was disbursed from a special intelligence
fund, authorized and approved by the President under the disposition of the Office of the Vice Chairman. Despite the statement
certifying that there were documents for the audit, no documents were provided and the same were not in the official files of
PCSO. The certification was attached to a letter by Uriarte dated July 1, 2010 addressed to Villar.

In the certification dated October 19, 2009 signed by Uriarte in the amount of P2,500,000, the witness made the same finding
that it also did not conform to the COA Circular, as it did not specify the project for which the cash advance was obtained and
there were also no records in the PCSO. It was attached to the letter dated October 19, 2009.

Finally, in the certification dated February 9, 2010 signed by Uriarte in the amount of P73,993,846, the witness likewise found
that it did not conform with the requirements of the COA, as all it said was the amount was used for the exercise of the functions
of the PCSO Chairman and General Manager. The documents related to this were also not in the PCSO records and Aguas did not
submit the same. It was attached to a letter dated February 8, 2010 from Uriarte to Villar.

There are two kinds of audit on disbursements of government funds: pre-audit and post-audit. Both are defined in COA Circular
2009-002. Pre-audit is the examination of documents supporting the transaction, before these are paid for and recorded. The
auditor determines whether: (1) the proposed expenditure was in compliance with the appropriate law, specific statutory
authority or regulations; (2) sufficient funds are available to enable payment of the claim; (3) the proposed expenditure is not
illegal, irregular, extravagant, unconscionable or unnecessary, and (4) the transaction is approved by the proper authority and
duly supported by authentic underlying evidence. On the other hand, the post-audit requirement is the process where the COA
or the auditor will have to do exactly what was done in the pre-audit, and in addition, the auditor must supplement what she did
by tracing the transaction under audit to the books of accounts, and that the transaction is all recorded in the books of accounts.
The auditor, in post-audit, also makes the final determination of whether the transaction was not illegal, irregular, extravagant,
excessive, unconscionable or unnecessary.

In this case, no audit was conducted. In a letter dated May 11, 2009 signed by Plaras, it was stated that a credit advice was
given. However, the letter did not conform to the requirements or form of a credit notice. Such form was in COA Circular 2003-
002, and should specify the liquidation report number, the amount, check numbers, and the action taken by the auditor. The
auditor should also include a certification that these have been audited. In this instance, no certification that the transaction was
audited was given by Plaras. Other similar letters did not conform with the COA Circular. All transactions of the government
must be subject to audit in accordance with the provisions of the Constitution. Nevertheless, the requirements for audit are the
same.

The effect of the issuance of the credit notice by the COA was that the agency will take it up in the books and credit the cash
advance. This is the seventh step in the flowchart. Once there is a cash advance, the liability of the officers who obtained the
cash advance would be recorded in the books. The credit notice, when received, would indicate that the account was settled. The
agency will credit the receivable or the cash advance, and remove from the books as a liability of the person liable lor the cash
advance. The effect of this was that the financial liabilities of Uriarte and Valencia were removed from the books, but they could
still be subject to criminal liability based on Sec. 10 of COA Circular 91-368 (Government Accounting and Auditing Manuals, Vol.
1, implementing P.D. 1445), which states: "The settlement of an account whether or not on appeal has been made within the
statutory period is no bar to criminal prosecution against persons liable." From the 2008 COA Annual Audited Financial
Statements of PCSO, it was seen that the procedure was not followed because the liability of the officers was already credited
even before the credit notice was received. In the financial statements, it was stated that the amount due from officers and
employees, which should include the cash advances obtained by Uriarte and Valencia, were not included because the amount
stated therein was P35 million, while the total vouchers of Uriarte and Valencia was P86 million.

The witness also related that she traced the records of the CIF fund (since such was no longer stated as a receivable), and
reviewed whether it was recorded as an expense in 2008. She found out that the recorded CIF fund expense, as recorded in the
corporate operating budget as actually disbursed, was only P21,102,000. As such, she confronted her accountants and asked
them "Saan tinago itong amount na to?" The personnel in the accounting office said that the balance of the P86 million or the
additional P21 million was not recorded in the operating fund budget because they used the prize fund and charity fund as
instructed by Aguas. Journal Entry Voucher No. 8121443 dated December 31, 2008, signed by Elmer Camba, Aguas (Head of
the Accounting Department), and Hutch Balleras (one of the staff in the Accounting Department), showed that this procedure
was done.

The contents of the Journal Entry Voucher are as follows: chanRoble svirtual Lawli bra ry

(a) Accounts and Explanation: Due to other funds. This means that the amount of P63,750,000 was
credited as confidential expense from the operating fund. The amount was then removed from the
operating fund, and it was passed on to other funds.

(b) PF Miscellaneous, Account No. 424-1-L P41,250,000 and CF Miscellaneous for 424-2-G for
P22,500,000. PF Miscellaneous means Prize Fund Miscellaneous and CF stands for Charity Fund
Miscellaneous. This means that funds used to release the cash advances to Uriarte and Valencia were
from the prize fund and charity.

Attached to the Journal Entry Voucher was a document which reads "Allocation of Confidential and Intelligence Fund Expenses",
and was the basis of Camba in doing the Journal Entry Voucher. In the same document, there was a written annotation dated
12-31-2008 which reads that the adjustment of CIF, CF and IF, beneficiary of the fund is CF and PF and signed by Aguas.

The year 2009 was a similar case, as the witness traced the recording of the credit notice at the end of 2009, and despite the
absence of the credit notice, the Accounting Department removed from the books of PCSO the liability of Uriarte and Valencia,
corresponding to the cash advances obtained in 2009. She based this finding on the COA Annual Audit Report on the PCSO for
the year ended December 31, 2009. It was stated in the Audit Report that the total liability due from officers and employees was
only P87,747,280 and it was less than the total cash advances of Uriarte and Valencia, which was P138 million. As a result, the
witness checked the corresponding entry for the expenses in the corporate operating budget and found out that the same was
understated. The CIF expenses were only P24,968,300, as against the actual amount per vouchers, which was P138,420,875.
Upon checking with the Accounting Department, the department showed her another Journal Entry Voucher No. 9121157, dated
December 29, 2009, where the personnel removed immediately the expense and recorded it as expense for the prize fund and
charity fund by the end of December 31.

The contents of the Journal Entry Voucher, especially the notation "due from", means the accountability of those who had cash
advance was instead credited. It was removed, and the amount was P106 million. The entry was confidential expense for
P15,958,020 and then the due to other funds was P90,428,780. The explanation for "424" was found in the middle part, stating:
"424-1-L" of miscellaneous prize fund was used in the amount of P58,502,740 and the charity fund was used in the amount of
P31,916,040. The total amount of the receivables from Uriarte and Valencia that was removed was P106,386,800 and
P90,428,780 respectively which came from the prize fund and charity fund.

The witness reported the discrepancy because there were violations of R.A. 1169, Sec. 6, which provides for the different funds
of PCSO namely: prize fund (55% of the net receipts), charity fund (30% of the net receipts), and operating fund (15%). The
proceeds of the lotto and sweepstakes ticket sales provide the money for these different funds, removing first the printing cost
and the net proceeds (98%) is divided among the three funds mentioned. The prize fund is the fund set aside to be used to pay
the prizes for the winnings in the lotto or sweepstakes draws, whether they are jackpot or consolation prizes. Incentives to the
lotto operators or horse owners are also drawn from this fund, as all of the expenses connected to the winnings of the draw. On
the other hand, the charity fund is reserved for charity programs approved by the board of PCSO, and constitutes hospital and
medical assistance to individuals, or to help facilities and other charities of national character. Operating expenses are charged
to the expenses to operate, personnel services, and MOOE. One kind of fund cannot be used for another kind, as they become a
trust fund which should only be used for the purpose for which it was authorized, not even with the approval of the board.

The amounts obtained from the charity fund and prize fund for 2008 was P63,750,000, and in 2009 P90,428,780. The Board of
Directors was given a copy of the COA Audit Reports for years 2008 and 2009. The Board of Directors for both years was
composed of: Chairman Valencia, and Board Members Morato, Roquero, Taruc and Valdez. Uriarte was the Vice Chairman of the
Board of Directors. The witness did not know whether the Board checked the COA reports, but there was no action on their part,
and neither did they question the correctness of the statements. They also had the Audit Committee (which was composed of
members of the board) at that time, and one of the duties of the Audit Committee was to verify the balances.

The witness identified the documents referring to the confirmation by the Board of Directors of PCSO of the GIF. Board
Resolution No. 217, approved on February 18, 2009, confirms the CIF approved by the President. It did not state which CIF they
were approving. They also assigned Uriarte as the Special Disbursing Officer of the CIF, but it did say for what year. The
signatories to the same Board Resolution were Valencia, Taruc, Valdes, Uriarte, Roquero and Morato. The same were the
witness's findings for Board Resolution No. 2356 S. 2009, approved on December 9, 2009. As for Board Resolution No. 29, S.
2010, approved on January 6, 2010, the Board confirmed the fund approved by the President for 2010, though the approval of
the President was only received on August 13, 2010 as shown in the Memorandum dated January 4. In effect, the Board was
aware of the requests, and because they ratified the cash advances, they agreed to the act of obtaining the same.

Apart from the President violating LOI 1282, the witness also observed that the President directly dealt with the PCSO, although
the President, by Executive Order No. 383 dated November 14, 2004, and Executive Order No. 455 dated August 22, 2005,
transferred the direct control and supervision of the PCSO to the Department of Social Welfare and Development (DSWD), and
later to the Department of Health (DOH). A project should first be approved by the Supervising and Controlling Secretary of the
Secretary of Health; that the President had transferred her direct control and supervision, and lost the same. The witness said
her basis was administrative procedure. In this regard, President Aquino now has transferred the control and supervision of the
PCSO back to the Office of the President through Executive Order No. 14, S. 2010, dated November 19, 2010.

Uriarte should not have gone directly to the President to ask for the latter's approval for allocation. Nonetheless, the release of
the CIF must still be approved by the President.9 cra lawred

The State also presented evidence consisting in the testimonies of officers coming from different law enforcement agencies10 to
corroborate Tolentino's testimony to the effect that the PCSO had not requested from their respective offices any intelligence
operations contrary to the liquidation report submitted by Uriarte and Aguas.

To complete the evidence for the Prosecution, Atty. Anamarie Villaluz Gonzales, Office-in-Charge and Department Manager of
the Human Resources of PCSO; Flerida Africa Jimenez, Head of the Intelligence and Confidential Fund Audit Unit of the COA; and
Noel Clemente, Director of COA were presented as additional witnesses.

After the Prosecution rested its case, GMA, Aguas, Valencia, Morato, Taruc V, Roquero and Villar separately filed their demurrers
to evidence asserting that the Prosecution did not establish a case for plunder against them.

On April 6, 2015, the Sandiganbayan granted the demurrers to evidence of Morato, Roquero, Taruc and Villar, and dismissed the
charge against them. It held that said accused who were members of the PCSO Board of Directors were not shown to have
diverted any PCSO funds to themselves, or to have raided the public treasury by conveying and transferring into their possession
and control any money or funds from PCSO account; that as to Villar, there had been no clear showing that his designation of
Plaras had been tainted with any criminal design; and that the fact that Plaras had signed "by authority" of Villar as the COA
Chairman could not criminally bind him in the absence of any showing of conspiracy.

However, the Sandiganbayan denied the demurrers of GMA, Aguas and Valencia, holding that there was sufficient evidence
showing that they had conspired to commit plunder; and that the Prosecution had sufficiently established a case of malversation
against Valencia, pertinently saying:chanRoblesv irt ual Lawlib rary

Demurrer to evidence is an objection by one of the parties in an action, to the effect that the evidence which his adversary
produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. The party demurring
challenges the sufficiency of the whole evidence to sustain a verdict. The court then ascertains whether there is a
competent or sufficient evidence to sustain the indictment or to support a verdict of guilt.

xxxx

Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight or amount as will legally
justify the judicial or official action demanded to accord to circumstances. To be considered sufficient therefore, the evidence
must prove (a) the commission of the crime, and (b) the precise degree of participation therein by the accused (Gutib v. CA, 110
SCAD 743, 312 SCRA 365 [1999]).

xxx xxx xxx

A. Demurrer filed by Arroyo and Aguas:

It must be remembered that in Our November 5, 2013 Resolution, We found strong evidence of guilt against Arroyo and
Aguas, only as to the second predicate act charged in the Information, which reads: chanRoblesv irtual Lawlib rary

(b) raiding the public treasury by withdrawing and receiving, in several instances, the above-mentioned
amount from the Confidential/Intelligence Fund from PCSO's accounts, and/or unlawfully transferring or
 conveying the same into their possession and control through irregularly issued disbursement vouchers
and fictitious expenditures.

In the November 5, 2013 Resolution, We said: chanRob lesvi rtua lLawl ibra ry

It should be noted that in both R.A. No. 7080 and the PCGG rules, the enumeration of the possible predicate acts in the
commission of plunder did not associate or require the concept of personal gain/benefit or unjust enrichment with respect to
raids on the public treasury, as a means to commit plunder. It would, therefore, appear that a "raid on the public treasury" is
consummated where all the acts necessary for its execution and accomplishment are present. Thus a "raid on the public
treasury" can be said to have been achieved thru the pillaging or looting of public coffers either through misuse,
misappropriation or conversion, without need of establishing gain or profit to the raider. Otherwise stated, once a
"raider" gets material possession of a government asset through improper means and has free disposal of the
same, the raid or pillage is completed. x x x

xxxx

Clearly, the improper acquisition and illegal use of CIF funds, which is obviously a government asset, will amount to a raid on
the public treasury, and therefore fall into the category of ill-gotten wealth.

xxxx

x x x It is not disputed that Uriarte asked for and was granted authority by Arroyo to use additional CIF funds during the period
2008-2010. Uriarte was able [to] accumulate during that period CIF funds in the total amount of P352,681,646. This
was through a series of withdrawals as cash advances of the CIF funds from the PCSO coffers, as evidenced by the disbursement
vouchers and checks issued and encashed by her, through her authorized representative.

These flagrant violations of the rules on the use of CIF funds evidently characterize the series of withdrawals by and
releases to Uriarte as "raids" on the PCSO coffers, which is part of the public treasury. These were, in every sense,
"pillage," as Uriarte looted government funds and appears to have not been able to account for it. The monies came
into her possession and, admittedly, she disbursed it for purposes other than what these were intended for, thus, amounting to
"misuse" of the same. Therefore, the additional CIF funds are ill-gotten, as defined by R.A. 7080, the PCGG rules, and Republic
v. Sandiganbayan. The encashment of the checks, which named her as the "payee," gave Uriarte material possession
of the CIF funds which she disposed of at will.

As to the determination whether the threshold amount of P50 million was met by the prosecution's evidence, the Court believes
this to have been established. Even if the computation is limited only to the cash advances/releases made by accused Uriarte
alone AFTER Arroyo had approved her requests and the PCSO Board approved CIF budget and the "regular" P5 million CIF
budget accorded to the PCSO Chairman and Vice Chairman are NOT taken into account, still the total cash advances through
accused Uriarte's scries of withdrawals will total P189,681,646. This amount surpasses the P50 million threshold.

The evidence shows that for the year 2010 alone, Uriarte asked for P150 million additional CIF funds, and Arroyo granted such
request and authorized its use. From January 8, 2010 up to June 18, 2010, Uriarte made a series of eleven (11) cash advances
in the total amount of P138,223,490. According to Uriarte's testimony before the Senate, the main purpose for these cash
advances was for the "roll-out" of the small town lottery program. However, the accomplishment report submitted by Aguas
shows that P137,500,000 was spent on non-related PCSO activities, such as "bomb threat, kidnapping, terrorism and bilateral
and security relations." All the cash advances made by Uriarte in 2010 were made in violation of LOI 1282, and CO A Circulars
2003-002 and 92-385. These were thus improper use of the additional CIF funds amounting to raids on the PCSO coffers and
were ill-gotten because Uriarte had encashed the checks and came into possession of the monies, which she had complete
freedom to dispose of, but was not able to properly account for. cralawred

These findings of the Court clearly point out the commission by Uriarte of the crime of Plunder under the second
predicate act charged in the Information. As to Arroyo's participation, the Court stated in its November 5, 2013
Resolution that:chanRoble svirtual Lawlib ra ry

The evidence shows that Arroyo approved not only Uriarte's request for additional CIF funds in 2008-2010, but also authorized
the latter to use such funds. Arroyo's "OK" notation and signature on Uriarte's letter-requests signified unqualified
approval of Uriarte's request to use the additional CIF funds because the last paragraph of Uriarte's requests
uniformly ended with this phrase: With the use of intelligence fund, PCSO can protect its image and integrity of its
operations.

The letter-request of Uriarte in 2010 was more explicit because it categorically asked for: "The approval on the use of the fifty
percent of the PR Fund as PCSO Intelligence Fund will greatly help PCSO in the disbursement of funds to immediately address
urgent issues."

Arroyo cannot, therefore, successfully argue that what she approved were only the request for the grant or allocation of
additional CIF funds, because Arroyo's "OK" notation was unqualified and, therefore, covered also the request to use
such funds, through releases of the same in favor of Uriarte.11 c ralawred

The Sandiganbayan later also denied the respective Motions for Reconsideration of GMA and Aguas, observing that: chanRoblesvi rtua lLaw lib rary

In this case, to require proof that monies went to a plunderer's bank account or was used to acquire real or personal
properties or used for any other purpose to personally benefit the plunderer, is absurd. Suppose a plunderer had
already illegally amassed, acquired or accumulated P50 Million or more of government funds and just decided to keep it in his
vault and never used such funds for any purpose to benefit him, would that not be plunder? Or, if immediately right after such
amassing, the monies went up in flames or recovered by the police, negating any opportunity for the person to actually benefit,
would that not still be plunder? Surely, in such cases, a plunder charge could still prosper and the argument that the fact of
personal benefit should still be evidence-based must fail.

Also, accused Arroyo insists that there was no proof of the fact of amassing the ill-gotten wealth, and that the "overt act" of
approving the disbursement is not the "overt act" contemplated by law. She further stresses that there was no proof of
conspiracy between accused Arroyo and her co-accused and that the Prosecution was unable to prove their case against accused
Arroyo. What accused Arroyo forgets is that although she did not actually commit any "overt act" of illegally
amassing CIF funds, her act of approving not only the additional CIF funds but also their releases, aided and
abetted accused Uriarte's successful raids on the public treasury. Accused Arroyo is therefore rightly charged as a co-
conspirator of Uriarte who accumulated the CIF funds. Moreover, the performance of an overt act is not indispensable
when a conspirator is the mastermind.12 cralaw red

Considering that the Sandiganbayan denied the demurrers to evidence of GMA and Aguas, they have come to the Court
on certiorari to assail and set aside said denial, claiming that the denial was with grave abuse of discretion amounting to lack or
excess of jurisdiction.
 Issues

GMA pleads that the denial of her demurrer to evidence was in patent and flagrant violation of Republic Act No. 7080, the law on
plunder, and was consequently arbitrary and oppressive, not only in grave abuse of discretion but rendered without jurisdiction
because: chanRoblesv irt ual Lawlib rary

First Ground

On the basis of the above Resolutions, the Sandiganbayan has denied petitioner Arroyo's Demurrer to Evidence and
considering the reasons for doing so, would find petitioner Arroyo guilty of the offense of plunder under Republic
Act No. 7080 as charged in the Information notwithstanding the following:
While the gravamen, indeed corpus delicti of the offense of plunder under R.A. No. 7080, and as charged in the
Information, is that the public officer . . . "amasses, accumulates or acquires ill-gotten wealth through a
combination or series of overt or criminal acts as described in Section 1(d) hereof, in the aggregate amount or total
value of at least Fifty million pesos (P50,000,000.00)", the Sandiganbayan Resolutions extirpate this vital element
of the offense of plunder;

In point of fact, not a single exhibit of the 637 exhibits offered by the prosecution nor a single testimony of the 21
witnesses of the prosecution was offered by the prosecution to prove that petitioner amassed, accumulated or
acquired even a single peso of the alleged ill-gotten wealth amounting to P365,997,915.00 or any part of that
amount alleged in the Information;

Implicitly confirming the above, and aggravating its error, on the basis solely of petitioner Arroyo's authorization of
the release of the Confidential/Intelligence Fund from PCSO's accounts, the Sandiganbayan ruled that she has
committed the offense of plunder under R.A. No. 7080 for the reason that her release of CIF funds to the PCSO
amount to a violation of Sec. 1(d) [1] of R.A. No. 7080 which reads, as follows:
1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; cra lawred

which, "did not associate or require the concept of personal gain/benefit or unjust enrichment with respect to raids
on the public treasury", thereby disregarding the gravamen or the corpus delicti of the offense of plunder under
R.A. No. 7080.

Second Ground

Worsening the above error of the Sandiganbayan, the Resolutions, with absolutely no justification in law or in the
evidence, purportedly as the "mastermind" of a conspiracy, and without performing any overt act, would impute to
petitioner Arroyo the "series of withdrawals as cash advances of the CIF funds from the PCSO coffers" by Uriarte as
"raids on the PCSO coffers, which is part of the public treasury" and "in every sense, 'pillage' as Uriarte looted
government funds and appears to have not been able to account for it". Parenthetically, Uriarte has not been
arrested, was not arraigned and did not participate in the trial of the case.

Third Ground

That as an obvious consequence of the above, denial of petitioner Arroyo's Demurrer To Evidence for the reasons
stated in the Sandiganbayan Resolutions, amounting no less to convicting her on the basis of a disjointed reading
of the crime of plunder as defined in R.A. No. 7080, aggravated by the extirpation in the process of its "corpus
delicti" - the amassing, accumulation or acquisition of ill-gotten wealth, hence, of a crime that does not exist in law
and consequently a blatant deprivation of liberty without due process of law.

Fourth Ground

The Information alleges that the ten (10) persons accused in Crim. Case No. SB-12-CRM-0174, namely: Gloria
Macapagal-Arroyo, Rosario C. Uriarte, Sergio O. Valencia, Manuel L. Morato, Jose R. Taruc V, Raymundo T. Roquero,
[M]a. Fatima A.S. Valdes, Benigno B. Aguas, Reynaldo A. Villar and Nilda B. Plaras . . . all public officers committing
the offense in relation to their respective offices and taking undue advantage of their respective official positions,
authority, relationships, connections or influence, conniving, conspiring and confederating with one another, did
then and there willfully, unlawfully and criminally amass, accumulate and/or acquire, directly or indirectly, ill-
gotten wealth in the aggregate amount or total value of THREE HUNDRED SIXTY FIVE MILLION NINE HUNDRED
NINETY SEVEN THOUSAND NINE HUNDRED FIFTEEN PESOS (PHP365,997,915.00), more or less, through any or a
combination or a series of overt or criminal acts, or similar schemes or means, described as follows . . . or each of
them, P36,599,791.50 which would not qualify the offense charged as "plunder" under R.A. No. 7080 against all
ten (10) accused together, for which reason the Information docs not charge the offense of plunder and, as a
consequence, all proceedings thereafter held under the Information are void. 13 cralawred

On his part, Aguas contends that: chanRoblesvi rtual Lawli bra ry

A. In light of the factual setting described above and the evidence offered and admitted, does proof beyond
reasonable doubt exist to warrant a holding that Prosecution proved the guilt of the accused such that there is
legal reason to deny Petitioner's Demurrer?

B. Did the Prosecution's offered evidence squarely and properly support the allegations in the Information?

PETITIONER STRONGLY SUBMITS THAT PROSECUTION FAILED TO ESTABLISH BY PROOF BEYOND REASONABLE
DOUBT THE EXISTENCE OF THE CORE ELEMENTS OF THE CRIME OF PLUNDER.14 cralawred

On the other hand, the Prosecution insists that the petitions for certiorari should be dismissed upon the following grounds,
namely: chanRoble svirtual Lawlib ra ry

A. CERTIORARI IS NOT THE PROPER REMEDY FROM AN ORDER OR RESOLUTION DENYING DEMURRER TO EVIDENCE.

B. THERE IS NO GRAVE ABUSE OF DISCRETION BECAUSE THE SANDIGANBAYAN MERELY INTERPRETED WHAT
CONSTITUTES PLUNDER UNDER LAW AND JURISPRUDENCE IN LIGHT OF FACTS OF THE CASE. IT DID NOT
JUDICIALLY LEGISLATE A "NEW" OFFENSE.
1. ACTUAL PERSONAL GAIN, BENEFIT OR ENRICHMENT IS NOT AN ELEMENT OF PLUNDER UNDER R.A. NO. 7080.
2. EVIDENCE SHOWS THAT ARROYO, BY INDISPENSABLE COOPERATION, CONSPIRED WITH HER CO-ACCUSED AND
PARTICIPATED IN THE COMPLEX, ILLEGAL SCHEME WHICH DEFRAUDED PCSO IN HUNDREDS OF MILLIONS OF
PESOS, WHICH CONSTITUTES PLUNDER.

3. ARROYO IS NOT SIMILARLY SITUATED WITH ACCUSED PCSO BOARD MEMBERS AND CANNOT THUS DEMAND THAT
THE SANDIGANBAYAN DISMISS THE PLUNDER CASE AGAINST HER.

C. ARROYO'S BELATED, COLLATERAL ATTACK ON THE INFORMATION CHARGING HER AND CO-ACCUSED FOR PLUNDER
IS HIGHLY IMPROPER, ESPECIALLY AT THIS LATE STAGE OF THE PROCEEDING.
1. THE FACTS CONSTITUTING THE OFFENSE ARE CLEARLY ALLEGED IN THE INFORMATION.

2. ARROYO'S ACTIVE PARTICIPATION IN THE PROCEEDINGS ARISING FROM OR RELATING TO SB- 12-CRM-0174
PROVES THAT SHE HAS ALWAYS KNOWN AND UNDERSTOOD THE NATURE AND SCOPE OF THE ACCUSATIONS
AGAINST HER.

D. ARROYO IS NOT ENTITLED TO A TEMPORARY RESTRAINING ORDER BECAUSE THE CRIMINAL PROSECUTION IN SB-
12-CRM-0174 CANNOT BE ENJOINED.15

Based on the submissions of the parties, the Court synthesizes the decisive issues to be considered and resolved, as follows:

Procedural Issue:

1. Whether or not the special civil action for certiorari is proper to assail the denial of the demurrers to evidence.

Substantive Issues:

1. Whether or not the State sufficiently established the existence of conspiracy among GMA, Aguas, and Uriarte;

2. Whether or not the State sufficiently established all the elements of the crime of plunder:
a. Was there evidence of amassing, accumulating or acquiring ill-gotten wealth in the total amount of not less than
P50,000,000.00?

b. Was the predicate act of raiding the public treasury alleged in the information proved by the Prosecution?

Ruling of the Court

The consolidated petitions for certiorari are meritorious.

I.
The Court cannot be deprived of its jurisdiction to correct grave abuse of discretion

The Prosecution insists that the petition for certiorari of GMA was improper to challenge the denial of her demurrer to evidence;
that she also thereby failed to show that there was grave abuse of discretion on the part of the Sandiganbayan in denying her
demurrer to evidence; and that, on the contrary, the Sandiganbayan only interpreted what constituted plunder under the law
and jurisprudence in light of the established facts, and did not legislate a new offense, by extensively discussing how she had
connived with her co-accused to commit plunder.16 ChanRoble sVirt ualawli bra ry

The Court holds that it should take cognizance of the petitions for certiorari because the Sandiganbayan, as shall shortly be
demonstrated, gravely abused its discretion amounting to lack or excess of jurisdiction.

The special civil action for certiorari is generally not proper to assail such an interlocutory order issued by the trial court because
of the availability of another remedy in the ordinary course of law.17 Moreover, Section 23, Rule 119 of the Rules of
Court expressly provides that "the order denying the motion for leave of court to file demurrer to evidence or the demurrer itself
shall not be reviewable by appeal or by certiorari before judgment." It is not an insuperable obstacle to this action, however,
that the denial of the demurrers to evidence of the petitioners was an interlocutory order that did not terminate the proceedings,
and the proper recourse of the demurring accused was to go to trial, and that in case of their conviction they may then appeal
the conviction, and assign the denial as among the errors to be reviewed.18 Indeed, it is doctrinal that the situations in which the
writ of certiorari may issue should not be limited,19 because to do so -
x x x would be to destroy its comprehensiveness and usefulness. So wide is the discretion of the court that authority is not
wanting to show that certiorari is more discretionary than either prohibition or mandamus. In the exercise of our
superintending control over other courts, we are to be guided by all the circumstances of each particular case 'as
the ends of justice may require.' So it is that the writ will be granted where necessary to prevent a substantial
wrong or to do substantial justice.20 cralawre d

The Constitution itself has imposed upon the Court and the other courts of justice the duty to correct errors of jurisdiction as a
result of capricious, arbitrary, whimsical and despotic exercise of discretion by expressly incorporating in Section 1 of Article VIII
the following provision:c hanRoblesv irtual Lawlib rary

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government. cralawred

The exercise of this power to correct grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government cannot be thwarted by rules of procedure to the contrary or for the sake of the
convenience of one side. This is because the Court has the bounden constitutional duty to strike down grave abuse of
discretion whenever and wherever it is committed. Thus, notwithstanding the interlocutory character and effect of the denial of
the demurrers to evidence, the petitioners as the accused could avail themselves of the remedy of certiorari when the denial was
tainted with grave abuse of discretion.21 As we shall soon show, the Sandiganbayan as the trial court was guilty of grave abuse
of discretion when it capriciously denied the demurrers to evidence despite the absence of competent and sufficient evidence to
sustain the indictment for plunder, and despite the absence of the factual bases to expect a guilty verdict.22 ChanRob les Virtualawl ibra ry

II.
The Prosecution did not properly allege and prove the existence of conspiracy among GMA, Aguas and Uriarte

Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony, and decide to
commit it.23 In this jurisdiction, conspiracy is either a crime in itself or a mere means to commit a crime.

As a rule, conspiracy is not a crime unless the law considers it a crime, and prescribes a penalty for it.24The exception is
exemplified in Article 115 (conspiracy and proposal to commit treason), Article 136 (conspiracy and proposal to commit coup
d'etat, rebellion or insurrection) and Article 141 (conspiracy to commit sedition) of the Revised Penal Code. When conspiracy is a
means to commit a crime, it is indispensable that the agreement to commit the crime among all the conspirators, or their
community of criminal design must be alleged and competently shown.

We also stress that the community of design to commit an offense must be a conscious one.25 Conspiracy transcends mere
companionship, and mere presence at the scene of the crime does not in itself amount to conspiracy. Even knowledge of, or
acquiescence in, or agreement to cooperate is not enough to constitute one a party to a conspiracy, absent any active
participation in the commission of the crime with a view to the furtherance of the common design and purpose.26 Hence,
conspiracy must be established, not by conjecture, but by positive and conclusive evidence.

In terms of proving its existence, conspiracy takes two forms. The first is the express form, which requires proof of an actual
agreement among all the co-conspirators to commit the crime. However, conspiracies are not always shown to have been
expressly agreed upon. Thus, we have the second form, the implied conspiracy. An implied conspiracy exists when two or more
persons are shown to have 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 closeness of
personal association and a concurrence of sentiment.27 Implied conspiracy is proved through the mode and manner of the
commission of the offense, or from the acts of the accused before, during and after the commission of the crime indubitably
pointing to a joint purpose, a concert of action and a community of interest.28
ChanRobles Vi rtua lawlib rary

But to be considered a part of the conspiracy, each of the accused must be shown to have performed at least an overt act in
pursuance or in furtherance of the conspiracy, for without being shown to do so none of them will be liable as a co-conspirator,
and each may only be held responsible for the results of his own acts. In this connection, the character of the overt act has been
explained in People v. Lizada:29
An overt or external act is defined as some physical activity or deed, indicating the intention to commit a particular crime, more
than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being
frustrated by external obstacles nor by the spontaneous desistance of the perpetrator, will logically and necessarily ripen into a
concrete offense. The raison d'etre for the law requiring a direct overt act is that, in a majority of cases, the conduct
of the accused consisting merely of acts of preparation has never ceased to be equivocal; and this is necessarily so,
irrespective of his declared intent. It is that quality of being equivocal that must be lacking before the act becomes
one which may be said to be a commencement of the commission of the crime, or an overt act or before any
fragment of the crime itself has been committed, and this is so for the reason that so long as the equivocal quality
remains, no one can say with certainty what the intent of the accused is. It is necessary that the overt act should have
been the ultimate step towards the consummation of the design. It is sufficient if it was the "first or some subsequent step in a
direct movement towards the commission of the offense after the preparations are made." The act done need not constitute
the last proximate one for completion. It is necessary, however, that the attempt must have a causal relation to the
intended crime. In the words of Viada, the overt acts must have an immediate and necessary relation to the
offense. (Bold underscoring supplied for emphasis) c ralaw red

In her case, GMA points out that all that the State showed was her having affixed her unqualified "OK" on the requests for the
additional CIFs by Uriarte. She argues that such act was not even an overt act of plunder because it had no immediate and
necessary relation to plunder by virtue of her approval not being per se illegal or irregular. However, the Sandiganbayan, in
denying the Motions for Reconsideration of GMA and Aguas vis-a-vis the denial of the demurrers, observed that: ch anRoblesvi rtua lLawl ibra ry

x x x x accused Arroyo insists that there was no proof of the feet of amassing the ill-gotten wealth, and that the "overt act" of
approving the disbursement is not the "overt act" contemplated by law. She further stresses that there was no proof of
conspiracy between accused Arroyo and her co-accused and that the Prosecution was unable to prove their case against accused
Arroyo. What accused Arroyo forgets is that although she did not actually commit any "overt act" of illegally amassing CIF funds,
her act of approving not only the additional CIF funds but also their releases, aided and abetted accused Uriarte's successful
raids on the public treasury. Accused Arroyo is therefore rightly charged as a co-conspirator of Uriarte who accumulated the CIF
funds. Moreover, the performance of an overt act is not indispensable when a conspirator is the mastermind.30 cra lawred

It is in this regard that the Sandiganbayan gravely abused its discretion amounting to lack or excess of its jurisdiction. To start
with, its conclusion that GMA had been the mastermind of plunder was plainly conjectural and outrightly unfounded considering
that the information did not aver at all that she had been the mastermind; hence, the Sandiganbayan thereby acted capriciously
and arbitrarily. In the second place, the treatment by the Sandiganbayan of her handwritten unqualified "OK" as an overt act of
plunder was absolutely unwarranted considering that such act was a common legal and valid practice of signifying approval of a
fund release by the President. Indeed, pursuant to People v. Lizada, supra, an act or conduct becomes an overt act of a crime
only when it evinces a causal relation to the intended crime because the act or conduct will not be an overt act of the crime if it
does not have an immediate and necessary relation to the offense.

In Estrada v. Sandiganbayan,31 the Court recognized two nuances of appreciating conspiracy as a means to commit a crime,
the wheel conspiracy and the chain conspiracy.

The wheel conspiracy occurs when there is a single person or group (the hub) dealing individually with two or more other
persons or groups (the spokes). The spoke typically interacts with the hub rather than with another spoke. In the event that the
spoke shares a common purpose to succeed, there is a single conspiracy. However, in the instances when each spoke is
unconcerned with the success of the other spokes, there are multiple conspiracies.32 ChanRobles Vi rtua lawlib rary

An illustration of wheel conspiracy wherein there is only one conspiracy involved was the conspiracy alleged in the information
for plunder filed against former President Estrada and his co-conspirators. Former President Estrada was the hub while the
spokes were all the other accused individuals. The rim that enclosed the spokes was the common goal in the overall
conspiracy, i.e., the amassing, accumulation and acquisition of ill-gotten wealth.

On the other hand, the American case of Kotteakos v. United States33 illustrates a wheel conspiracy where multiple conspiracies
were established instead of one single conspiracy. There, Simon Brown, the hub, assisted 31 independent individuals to obtain
separate fraudulent loans from the US Government. Although all the defendants were engaged in the same type of illegal
activity, there was no common purpose or overall plan among them, and they were not liable for involvement in a single
conspiracy. Each loan was an end in itself, separate from all others, although all were alike in having similar illegal objects.
Except for Brown, the common figure, no conspirator was interested in whether any loan except his own went through. Thus, the
US Supreme Court concluded that there existed 32 separate conspiracies involving Brown rather than one common
conspiracy.34ChanRobles Virtualawl ibra ry

The chain conspiracy recognized in Estrada v. Sandiganbayan exists when there is successive communication and cooperation in
much the same way as with legitimate business operations between manufacturer and wholesaler, then wholesaler and retailer,
and then retailer and consumer.35 ChanRobles Vi rtua lawlib rary

This involves individuals linked together in a vertical chain to achieve a criminal objective.36 Illustrative of chain conspiracy was
that involved in United States v. Bruno,37 of the US Court of Appeals for the Second Circuit. There, 88 defendants were indicted
for a conspiracy to import, sell, and possess narcotics. This case involved several smugglers who had brought narcotics to
retailers who, in turn, had sold the narcotics to operatives in Texas and Louisiana for distribution to addicts. The US Court of
Appeals for the Second Circuit ruled that what transpired was a single chain conspiracy in which the smugglers knew that the
middlemen must sell to retailers for distribution to addicts, and the retailers knew that the middle men must purchase drugs
from smugglers. As reasoned by the court, "the conspirators at one end of the chain knew that the unlawful business would not
and could not, stop with their buyers; and those at the other end knew that it had not begun with their sellers." Each conspirator
knew that "the success of that part with which he was immediately concerned was dependent upon success of the whole." This
means, therefore, that "every member of the conspiracy was liable for every illegal transaction carried out by other members of
the conspiracy in Texas and in Louisiana."38 ChanRoblesVirtualawli bra ry

Once the State proved the conspiracy as a means to commit a crime, each co-conspirator is as criminally liable as the others, for
the act of one is the act of all. A co-conspirator does not have to participate in every detail of the execution; neither does he
have to know the exact part performed by the co-conspirator in the execution of the criminal act.39 Otherwise, the criminal
liability of each accused is individual and independent.

The Prosecution insisted that a conspiracy existed among GMA, Uriarte, Valencia and the Members of the PCSO Board of
Directors, Aguas, Villar and Plaras. The Sandiganbayan agreed with the Prosecution as to the conspirators involved, declaring
that GMA, Aguas, and Uriarte had conspired and committed plunder.

A review of the records of the case compels us to reject the Sandiganbayan's declaration in light of the information filed against
the petitioners, and the foregoing exposition on the nature, forms and extent of conspiracy. On the contrary, the Prosecution did
not sufficiently allege the existence of a conspiracy among GMA, Aguas and Uriarte.

A perusal of the information suggests that what the Prosecution sought to show was an implied conspiracy to commit plunder
among all of the accused on the basis of their collective actions prior to, during and after the implied agreement. It is notable
that the Prosecution did not allege that the conspiracy among all of the accused was by express agreement, or was a wheel
conspiracy or a chain conspiracy.

This was another fatal flaw of the Prosecution.

In its present version, under which the petitioners were charged, Section 2 of Republic Act No. 7080 (Plunder Law) states: chanRoblesvi rtua lLaw lib rary

Section 2. Definition of the Crime of Plunder; Penalties. - Any public officer who, by himself or in connivance with members of
his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or
acquires ill-gotten wealth through a combination or series of overt criminal acts as described in Section 1 (d) hereof in the
aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall
be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an
offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code,
shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and
assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the
State. [As Amended by Section 12, Republic Act No. 7659 (The Death Penalty Law)] cralawre d

Section 1(d) of Republic Act No. 7080 provides: cha nRoblesv irt ual Lawlib rary

Section 1. Definition of terms. - As used in this Act, the term:

xxxx

d. "Ill-gotten wealth" means any asset, property, business enterprise or material possession of any person within the purview of
Section two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business
associates by any combination or series of the following means or similar schemes:

1. Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;

2. By receiving, directly or indirectly, any commission, gilt, share, percentage, kickbacks or any/or entity in connection with any
government contract or project or by reason of the office or position of the public officer concerned;

3. By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its
subdivisions, agencies or instrumentalities or government-owned or controlled corporations and their subsidiaries;

4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or
participation including the promise of future employment in any business enterprise or undertaking;

5. By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and
orders intended to benefit particular persons or special interests; or

6. By taking undue advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines. cralaw red

The law on plunder requires that a particular public officer must be identified as the one who amassed, acquired or accumulated
ill-gotten wealth because it plainly states that plunder is committed by any public officer who, by himself or in connivance with
members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth in the aggregate amount or total value of at least P50,000,000.00 through
a combinationor series of overt criminal acts as described in Section 1(d) hereof. Surely, the law requires in the criminal charge
for plunder against several individuals that there must be a main plunderer and her co-conspirators, who may be members of
her family, relatives by affinity or consanguinity, business associates, subordinates or other persons. In other words, the
allegation of the wheel conspiracy or express conspiracy in the information was appropriate because the main plunderer would
then be identified in either manner. Of course, implied conspiracy could also identify the main plunderer, but that fact must be
properly alleged and duly proven by the Prosecution.
This interpretation is supported by Estrada v. Sandiganbayan,40 where the Court explained the nature of the conspiracy charge
and the necessity for the main plunderer for whose benefit the amassment, accumulation and acquisition was made, thus: chanRoblesvirtual Lawli bra ry

There is no denying the fact that the "plunder of an entire nation resulting in material damage to the national economy" is made
up of a complex and manifold network of crimes. In the crime of plunder, therefore, different parties may be united by a
common purpose. In the case at bar, the different accused and their different criminal acts have a commonality - to help the
former President amass, accumulate or acquire ill-gotten wealth. Sub-paragraphs (a) to (d) in the Amended Information alleged
the different participation of each accused in the conspiracy. The gravamen of the conspiracy charge, therefore, is not that
each accused agreed to receive protection money from illegal gambling, that each misappropriated a portion of the tobacco
excise tax, that each accused ordered the GSIS and SSS to purchase shares of Belle Corporation and receive commissions from
such sale, nor that each unjustly enriched himself from commissions, gifts and kickbacks; rather, it is that each of them, by
their individual acts, agreed to participate, directly or indirectly, in the amassing, accumulation and acquisition of
ill-gotten wealth of and/or for former President Estrada. [bold underscoring supplied for emphasis] cralaw red

Here, considering that 10 persons have been accused of amassing, accumulating and/or acquiring ill-gotten wealth aggregating
P365,997,915.00, it would be improbable that the crime charged was plunder if none of them was alleged to be the main
plunderer. As such, each of the 10 accused would account for the aliquot amount of only P36,599,791.50, or exactly 1/10 of the
alleged aggregate ill-gotten wealth, which is far below the threshold value of ill-gotten wealth required for plunder.

We are not unmindful of the holding in Estrada v. Sandiganabayan41 to the effect that an information alleging conspiracy is
sufficient if the information alleges conspiracy either: (1) with the use of the word conspire, or its derivatives or synonyms, such
as confederate, connive, collude, etc.; or (2) by allegations of the basic facts constituting the conspiracy in a manner that a
person of common understanding would know what is being conveyed, and with such precision as would enable the accused to
competently enter a plea to a subsequent indictment based on the same facts. We are not talking about the sufficiency of the
information as to the allegation of conspiracy, however, but rather the identification of the main plunderer sought to be
prosecuted under R.A. No. 7080 as an element of the crime of plunder. Such identification of the main plunderer was not only
necessary because the law required such identification, but also because it was essential in safeguarding the rights of all of the
accused to be properly informed of the charges they were being made answerable for. The main purpose of requiring the various
elements of the crime charged to be set out in the information is to enable all the accused to suitably prepare their defense
because they are presumed to have no independent knowledge of the facts that constituted the offense charged.42 ChanRobles Vi rtualaw lib rary

For sure, even the Sandiganbayan was at a loss in this respect. Despite the silence of the information on who the main plunderer
or the mastermind was, the Sandiganbayan readily condemned GMA in its resolution dated September 10, 2015 as the
mastermind despite the absence of the specific allegation in the information to that effect. Even worse, there was no evidence
that substantiated such sweeping generalization.

In fine, the Prosecution's failure to properly allege the main plunderer should be fatal to the cause of the State against the
petitioners for violating the rights of each accused to be informed of the charges against each of them.

Nevertheless, the Prosecution insists that GMA, Uriarte and Aguas committed acts showing the existence of an implied
conspiracy among themselves, thereby making all of them the main plunderers. On this score, the Prosecution points out that
the sole overt act of GMA to become a part of the conspiracy was her approval via the marginal note of "OK" of all the requests
made by Uriarte for the use of additional intelligence fund. The Prosecution stresses that by approving Uriarte's requests in that
manner, GMA violated the following: chanRob lesvi rtual Lawli bra ry

Letter of Instruction 1282, which required requests for additional confidential and intelligence funds (CIFs) to be accompanied
with detailed, specific project proposals and specifications; and

COA Circular No. 92-385, which allowed the President to approve the release of additional CIFs only if there was an existing
budget to cover the request.
The insistence of the Prosecution is unwarranted. GMA's approval of Uriarte's requests for additional CIFs did not make her part
of any design to raid the public treasury as the means to amass, accumulate and acquire ill-gotten wealth. Absent the specific
allegation in the information to that effect, and competent proof thereon, GMA's approval of Uriarte's requests, even if
unqualified, could not make her part of any criminal conspiracy to commit plunder or any other crime considering that her
approval was not by any means irregular or illegal.

The Prosecution takes GMA to task for approving Uriarte's request despite the requests failing to provide "the full detail [of] the
specific purposes for which said funds shall be spent and shall explain the circumstances giving rise to the necessity for the
expenditure and the particular aims to be accomplished." It posits that the requests were not specific enough, contrary to what
is required by LOI 1282.

LOI 1282 reads: chanRoblesvirtual Lawli bra ry

LETTER OF INSTRUCTION NO. 1282

To: All Ministries and Offices Concerned

In recent years intelligence funds appropriated for the various ministries and certain offices have been, as reports reaching me
indicate, spent with less than full regard for secrecy and prudence. On the one hand, there have been far too many leakages of
information on expenditures of said funds; and on the other hand, where secrecy has been observed, the President himself was
often left unaware of how these funds had been utilized.

Effective immediately, all requests for the allocation or release of intelligence funds shall indicate in full detail the specific
purposes for which said funds shall be spent and shall explain the circumstances giving rise to the necessity for the expenditure
and the particular aims to be accomplished.

The requests and the detailed explanations shall be submitted to the President personally.

It is imperative that such detailed presentations be made to the President in order to avoid such duplication of expenditures as
has taken place in the past because of the lack of centralized planning and organized disposition of intelligence funds.

Full compliance herewith is desired.

Manila, January 12, 1983.

(Sgd.) FERDINAND E. MARCOS

President of the Philippines
However, an examination of Uriarte's several requests indicates their compliance with LOI No. 1282. The requests, similarly
worded, furnished: (a) the full details of the specific purposes for which the funds would be spent; (b) the explanations of the
circumstances giving rise to the necessity of the expenditure; and (c) the particular aims to be accomplished.

The specific purposes and circumstances for the necessity of the expenditures were laid down as follows: chanRob lesvi rtua lLawl ibra ry

In dispensing its mandate, PCSO has been constantly encountering a number of fraudulent schemes and nefarious activities on a
continuing basis which affect the integrity of our operations, to wit:
Donated medicines sometimes end up in drug stores for sale even if they were labeled "Donated by PCSO - Not for Sale";

Unwarranted or unofficial use of ambulances by beneficiary-donees;

Unauthorized expenditures of endowment fund for charity patients and organizations;

Lotto and sweepstakes scams victimizing innocent people of winning the jackpot and selling tampered tickets as winning tickets;

Fixers for the different programs of PCSO such as Ambulance Donation Project, Endowment Fund Program and Individual Medical
Assistance Program;

Other fraudulent schemes and activities which put the PCSO in bad light.43
A reading of the requests also reveals that the additional CIFs requested were to be used to protect PCSO's image and the
integrity of its operations. The Court thus cannot share the Prosecution's dismissiveness of the requests for not being compliant
with LOI No. 1282. According to its terms, LOI No. 1282 did not detail any qualification as to how specific the requests should be
made. Hence, we should not make any other pronouncement than to rule that Uriarte's requests were compliant with LOI No.
1282.

COA Circular No. 92-385 required that additional request for CIFs would be approved only when there was available budget. In
this regard, the Prosecution suggests that there was no longer any budget when GMA approved Uriarte's requests because the
budget had earmarked intelligence funds that had already been maxed out and used. The suggestion is not acceptable, however,
considering that the funds of the PCSO were co-mingled into one account as early as 2007. Consequently, although only 15% of
PCSO's revenues was appropriated to an operation fund from which the CIF could be sourced, the remaining 85% of PCSO's
revenues, already co-mingled with the operating fund, could still sustain the additional requests. In short, there was available
budget from which to draw the additional requests for CIFs.

It is notable that the COA, although frowning upon PCSO's co-mingling of funds, did not rule such co-mingling as illegal. As such,
sourcing the requested additional CIFs from one account was far from illegal.

Lastly, the Prosecution's effort to show irregularities as badges of bad faith has led it to claim that GMA had known that Uriarte
would raid the public treasury, and would misuse the amounts disbursed. This knowledge was imputed to GMA by virtue of her
power of control over PCSO.

The Prosecution seems to be relying on the doctrine of command responsibility to impute the actions of subordinate officers to
GMA as the superior officer. The reliance is misplaced, for incriminating GMA under those terms was legally unacceptable and
incomprehensible. The application of the doctrine of command responsibility is limited, and cannot be true for all litigations. The
Court ruled in Rodriguez v. Macapagal-Arroyo44 that command responsibility pertains to the responsibility of commanders for
crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or
domestic conflict. The doctrine has also found application in civil actions for human rights abuses. But this case involves neither
a probe of GMA's actions as the Commander-in-Chief of the Armed Forces of the Philippines, nor of a human rights issue. As
such, it is legally improper to impute the actions of Uriarte to GMA in the absence of any conspiracy between them.

On the part of Aguas, the Sandiganbayan pronounced him to be as much a member of the implied conspiracy as GMA was, and
detailed his participation in this manner:chanRoblesv irt ual Lawlib rary

In all of the disbursement vouchers covering the cash advances/releases to Uriarte of the CIF funds, Aguas certified that: chanRoblesv irtual Lawlib rary

CERTIFIED: Adequate available funds/budgetary allotment in the amount of P_________; expenditure properly certified;
supported by documents marked (X) per checklist and back hereof; account codes proper; previous cash advance
liquidated/accounted for. cra lawred

These certifications, after close scrutiny, were not true because: 1.) there were no documents which lent support to the cash
advances on a per project basis. The particulars of payment simply read: "To draw cash advance form the CIF Fund of the Office
of the Vice-Chairman and General Manager". No particular purpose or project was specified contrary to the requirement under
CO A Circular 2003-002 that cash advances must be on a per project basis. Without specifics on the project covered by each
cash advance. Aguas could not certify that supporting documents existed simply because he would not know what project was
being funded by the cash advances; and 2.) There were no previous liquidations made of prior cash advances when Aguas made
the certifications. COA circular 2003-002 required that cash advances be liquidated within one (1) month from the date the
purpose of the cash advance was accomplished. If the completion of the projects mentioned were for more than one month, a
monthly progress liquidation report was necessary. In the case of Uriarte's cash advances certified to by Aguas, the liquidation
made was wholesale, i.e. these were done on a semi-annual basis without a monthly liquidation or at least a monthly liquidation
progress report. How then could Aguas correctly certify that previous liquidations were accounted for? Aguas's certification also
violated Sec. 89 of P.D. 1445 which states: chanRoblesvi rtua lLawl ibra ry

Limitations on cash advance. No cash advance shall be given unless for a legally authorized specific purpose. A cash advance
shall be reported on and liquidated as soon as the purpose for which it was given has been served. No additional cash advance
shall be allowed to any official or employee unless the previous cash advance given to him is first settled or a proper accounting
thereof is made.cralaw red

There is a great presumption of guilt against Aguas, as his action aided and abetted Uriarte's being able to draw these irregular
CIF funds in contravention of the rules on CIF funds. Without Aguas's certification, the disbursement vouchers could not have
been processed for payment. Accordingly, the certification that there were supporting documents and prior liquidation paved the
way for Uriarte to acquire ill-gotten wealth by raiding the public coffers of the PCSO.

By just taking cognizance of the series and number of cash advances and the staggering amounts involved, Aguas should have
been alerted that something was greatly amiss and that Uriarte was up to something. If Aguas was not into the scheme, it would
have been easy for him to refuse to sign the certification, but he did not. The conspiracy "gravamen" is therefore present in the
case of Aguas. Moreover, Aguas's attempt to cover-up Uriarte's misuse of these CIF funds in his accomplishment report only
contributed to unmasking the actual activities for which these funds were utilized. Aguas's accomplishment report, which was
conformed to by Uriarte, made it self-evidence that the bulk of the CIF funds in 2009 and 2010 were allegedly spend for non-
PCSO related activities, e.g. bomb threats, kidnapping, terrorism, and others.45 cra lawred

Thus, the Sandiganbayan concluded that Aguas became a part of the implied conspiracy when he signed the disbursement
vouchers despite the absence of certain legal requirements, and issued certain certifications to the effect that the budgetary
allotment/funds for cash advance to be withdrawn were available; that the expenditures were supported by documents; and that
the previous cash advances had been liquidated or accounted for.
 We opine and declare, however, that Aguas' certifications and signatures on the disbursement vouchers were insufficient bases
to conclude that he was into any conspiracy to commit plunder or any other crime. Without GMA's participation, he could not
release any money because there was then no budget available for the additional CIFs. Whatever irregularities he might have
committed did not amount to plunder, or to any implied conspiracy to commit plunder.

Under the circumstances, the Sandiganbayan's finding on the existence of the conspiracy to commit plunder was unsustainable.
It then becomes unavoidable for the Court to rule that because the Prosecution failed to properly allege the elements of the
crime, as well as to prove that any implied conspiracy to commit plunder or any other crime existed among GMA, Aguas and
Uriarte there was no conspiracy to commit plunder among them. As a result, GMA and Aguas could be criminally responsible
only for their own respective actions, if any.

III.
No proof of amassing, or accumulating, or acquiring ill-gotten wealth of at least P50 Million was adduced against
GMA and Aguas

The Sandiganbayan sustained the sufficiency of the evidence to convict the petitioners for plunder on the basis that the
Prosecution established all the elements of plunder.

After a review of the records, we find and rule that the Prosecution had no case for plunder against the petitioners.

To successfully mount a criminal prosecution for plunder, the State must allege and establish the following elements, namely: chanRoblesvi rtua lLawl ibra ry

1. That the offender is a public officer who acts by herself or in connivance with members of her family, relatives by affinity or
consanguinity, business associates, subordinates or other persons;

2. That the offender amasses, accumulates or acquires ill- gotten wealth through a combination or series of the following overt or
criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;
(b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits
from any person and/or entity in connection with any government contract or project or by reason of the office or position of the
public officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of
its subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries; (d) by
obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation
including the promise of future employment in any business enterprise or undertaking; (e) by establishing agricultural, industrial
or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular
persons or special interests; or (f) by taking advantage of official position, authority, relationship, connection or influence to
unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of
the Philippines; and.

3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least
P50,000,000.00.46

The corpus delicti of plunder is the amassment, accumulation or acquisition of ill-gotten wealth valued at not less than
P50,000,000.00. The failure to establish the corpus delicti should lead to the dismissal of the criminal prosecution.

As regards the element that the public officer must have amassed, accumulated or acquired ill-gotten wealth worth at least
P50,000,000.00, the Prosecution adduced no evidence showing that either GMA or Aguas or even Uriarte, for that matter, had
amassed, accumulated or acquired ill-gotten wealth of any amount. There was also no evidence, testimonial or otherwise,
presented by the Prosecution showing even the remotest possibility that the CIFs of the PCSO had been diverted to either GMA
or Aguas, or Uriarte.

The absolute lack of evidence on this material but defining and decisive aspect of the criminal prosecution was explicitly noted in
the concurring and partial dissenting opinion of Justice Rodolfo A. Ponferrada of the Sandiganbayan, to wit: chanRoblesvi rt ualLaw lib rary

Here the evidence of the prosecution failed to show the existence of the crime of plunder as no evidence was presented that any
of the accused, accumulated and/or acquired ill-gotten wealth. In fact, the principal witness of the prosecution when asked, said
that she does not know the existence or whereabouts of the alleged ill-gotten wealth, to wit: chanRoblesv irt ual Lawlib rary

Q: Of course, you don't know where is this ill-gotten wealth are (sic) now?

A: Yes, Your Honors. We don't know whether they saved it, squandered it or what? We don't
know, Your Honor.47 [bold Emphasis supplied]

After Atty. Tolentino, as the Prosecution's main witness, conceded lack of any knowledge of the amassing, accumulating or
acquiring of ill-gotten wealth of at least P50,000,000.00, nothing more remained of the criminal prosecution for plunder. Hence,
the Sandiganbayan should have granted the demurrers of GMA and Aguas, and dismissed the criminal action against them.

IV.
The Prosecution failed to prove the predicate act of raiding the public treasury

The Sandiganbayan observed that the Prosecution established the predicate act of raiding the public treasury, to wit: chanRob lesvi rtua lLawl ibra ry

Secondly, the terms "unjust enrichment," "benefit," and "pecuniary benefit" are only mentioned in the predicate acts mentioned
in par. 2, 5 and 6 of Section 1 (d) of the Plunder Law. Paragraph 1 of the same section where "raids on the public treasury" is
mentioned did not mention "unjust enrichment" or "personal benefit". Lastly, the predicate act covering "raids on the public
treasury" is lumped up with the phrases misappropriation, conversion, misuse and malversation of public funds. Thus, once
public funds, as in the case of CIF funds, are illegally accumulated, amassed or acquired. To the tune of P50 Million or more,
there will be no need to establish any motive to gain, or much more establish where the money eventually ended up. As stated
in Our Resolution dated November 5, 2013:

It should be noted that in both R.A. No. 7080 and the PCGG rules, the enumeration of the possible predicate acts in the
commission of plunder did not associate or require the concept of personal gain/benefit or unjust enrichment with respect to
raids on the public treasury, as a means to commit plunder. It would, therefore, appear that a "raid on the public treasury" is
consummated where all the acts necessary for its execution and accomplishment are present. Thus a "raid on the public
treasury" can be said to have been achieved thru the pillaging or looting of public coffers either through misuse,
misappropriation or conversion, without need of establishing gain or profit to the "raider" gets material possession of a
government asset through improper means and has free disposal of the same, the raid or pillage is completed.

xxxx

Clearly, the improper acquisition and illegal use of CIF funds, which is obviously a government asset, will amount to a raid on
the public treasury, and therefore fall into the category of ill-gotten wealth.

xxxx

x x x It is not disputed that Uriarte asked for and was granted authority by Arroyo to use additional CIF funds during the period
2008-2010. Uriarte was able to accumulate during that period CIF funds in the total amount of P352,681,646. This was through
a series of withdrawals as cash advances of the CIF funds from the PCSO coffers, as evidenced by the disbursement vouchers
and checks issued and encashed by her, through her authorized representatives.

These flagrant violations of the rules on the use of CIF funds evidently characterize the series of withdrawals by and releases to
Uriarte as "raids" on the PCSO coffers, which is part of the public treasury. These were, in every sense, "pillage," as Uriarte
looted government funds and appears to have not been able to account for it. The monies came into her possession and,
admittedly, she disbursed it for purposes other than what these were intended for, thus amounting to "misuse" of the same. x x
x

In this case, to require proof that monies went to a plunderer's bank account or was used to acquire real or personal properties
or used for any other purpose to personally benefit the plunderer, is absurd. Suppose a plunderer had already amassed,
acquired or accumulated P50 Million or more of government funds and just decide to keep it in his vault and never used such
funds for any purpose to benefit him, would that not be plunder? Or, if immediately right after such amassing, the monies went
up in flames or recovered by the police, negating any opportunity for the purpose to actually benefit, would that not still be
plunder? Surely, in such cases, a plunder charge could still prosper and the argument that the fact of personal benefit should still
be evidence-based must fail.48 cralaw red

The Sandiganbayan contended that in order to prove the predicate act of raids of the public treasury, the Prosecution need not
establish that the public officer had benefited from such act; and that what was necessary was proving that the public officer had
raided the public coffers. In support of this, it referred to the records of the deliberations of Congress to buttress its observation.

We do not share the Sandiganbayan's contention.

The phrase raids on the public treasury is found in Section 1 (d) of R.A. No. 7080, which provides: c hanRoble svirtual Lawlib ra ry

Section 1. Definition of Terms. - x x x

xxxx

d) Ill-gotten wealth means any asset, property, business enterprise or material possession of any person within the purview of
Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business
associates by any combination or series of the following means or similar schemes:

1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury;

xxxx cralawred

To discern the proper import of the phrase raids on the public treasury, the key is to look at the accompanying
words: misappropriation, conversion, misuse or malversation of public funds. This process is conformable with the maxim of
statutory construction noscitur a sociis, by which the correct construction of a particular word or phrase that is ambiguous in
itself or is equally susceptible of various meanings may be made by considering the company of the words in which the word or
phrase is found or with which it is associated. Verily, a word or phrase in a statute is always used in association with other words
or phrases, and its meaning may, therefore, be modified or restricted by the latter.49 ChanRobles Vi rtua lawlib rary

To convert connotes the act of using or disposing of another's property as if it were one's own; to misappropriate means to own,
to take something for one's own benefit;50misuse means "a good, substance, privilege, or right used improperly, unforeseeably,
or not as intended;"51 and malversationoccurs when "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."52 The common thread
that binds all the four terms together is that the public officer usedthe property taken. Considering that raids on the public
treasury is in the company of the four other terms that require the use of the property taken, the phrase raids on the public
treasury similarly requires such use of the property taken. Accordingly, the Sandiganbayan gravely erred in contending that the
mere accumulation and gathering constituted the forbidden act of raids on the public treasury. Pursuant to the maxim
of noscitur a sociis, raids on the public treasury requires the raider to use the property taken impliedly for his personal benefit.

The Prosecution asserts that the Senate deliberations removed personal benefit as a requirement for plunder. In not requiring
personal benefit, the Sandiganbayan quoted the following exchanges between Senator Enrile and Senator Tañada, viz.: chanRoblesvi rt ualLaw lib rary

Senator Enrile. The word here, Mr. President, "such public officer or person who conspired or knowingly benefited". One docs
not have to conspire or rescheme. The only element needed is that he "knowingly benefited". A candidate for the Senate for
instance, who received a political contribution from a plunderer, knowing that the contributor is a plunderer and therefore, he
knowingly benefited from the plunder, would he also suffer the penalty, Mr. President, for life imprisonment?

Senator Tañada. In the committee amendments, Mr. President, we have deleted these lines 1 to 4 and part of line 5, on page 3.
But, in a way, Mr. President, it is good that the Gentleman is bringing out these questions, I believe that under the examples he
has given, the Court will have to . . .

Senator Enrile. How about the wife, Mr. President, he may not agree with the plunderer to plunder the country but because she
is a dutiful wife or a faithful husband, she has to keep her or his vow of fidelity to the spouse. And, of course, she enjoys the
benefits out of the plunder. Would the Gentleman now impute to her or him the crime of plunder simply because she or he
knowingly benefited out of the fruits of the plunder and, therefore, he must suffer or he must suffer the penalty of life
imprisonment?

The President. That was stricken out already in the Committee amendment.

Senator Tañada. Yes, Mr. President. Lines 1 to 4 and part of line 5 were stricken out in the Committee amendment. But, as I
said, the camples of the Minority Floor Leader are still worth spreading the Record. And, I believe that in those examples, the
Court will have just to take into consideration all the other circumstances prevailing in the case and the evidence that will be
submitted.

The President. In any event, 'knowingly benefited' has already been stricken off.53 cral awred

The exchanges between Senator Enrile and Senator Tañada reveal, therefore, that what was removed from the coverage of the
bill and the final version that eventually became the law was a person who was not the main plunderer or a co-conspirator, but
one who personally benefited from the plunderers' action. The requirement of personal benefit on the part of the main plunderer
or his co-conspirators by virtue of their plunder was not removed.

As a result, not only did the Prosecution fail to show where the money went but, more importantly, that GMA and Aguas had
personally benefited from the same. Hence, the Prosecution did not prove the predicate act of raids on the public
treasury beyond reasonable doubt.

V.
Summation

In view of the foregoing, the Court inevitably concludes that the Sandiganbayan completely ignored the failure of the information
to sufficiently charge conspiracy to commit plunder against the petitioners; and ignored the lack of evidence establishing
the corpus delicti of amassing, accumulation and acquisition of ill-gotten wealth in the total amount of at least P50,000,000.00
through any or all of the predicate crimes. The Sandiganbayan thereby acted capriciously, thus gravely abusing its discretion
amounting to lack or excess of jurisdiction.

Grave abuse of discretion means such capricious or whimsical exercise of judgment which is equivalent to lack of
jurisdiction.54 To justify the issuance of the writ of certiorari, the abuse of discretion must be grave, as when the power is
exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and the abuse must be so patent and
gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined, or to act at all, in
contemplation of law, as to be equivalent to having acted without jurisdiction.55
Cha nRobles Vi rtua lawlib rary

WHEREFORE, the Court GRANTS the petitions for certiorari; ANNULS and SETS ASIDE the resolutions issued in Criminal
Case No. SB-12-CRM-0174 by the Sandiganbayan on April 6, 2015 and September 10, 2015; GRANTS the petitioners'
respective demurrers to evidence; DISMISSES Criminal Case No. SB-12-CRM-0174 as to the petitioners GLORIA
MACAPAGAL-ARROYO and BENIGNO AGUAS for insufficiency of evidence; ORDERS the immediate release from detention of
said petitioners; and MAKES no pronouncements on costs of suit.