[G.R. No. 141066. February 17, 2005] The accusatory portions of the Informations in Criminal Case Nos.
s of the Informations in Criminal Case Nos. 7069 and
EVANGELINE LADONGA, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Petitioner Evangeline Ladonga seeks a review of the Decision,[1] dated May
17, 1999, of the Court of Appeals in CA-G.R. CR No. 20443, affirming the
Decision dated August 24, 1996, of the Regional Trial Court (RTC), Branch
3 of Bohol, in Criminal Case Nos. 7068, 7069 and 7070 convicting her of
violation of B.P. Blg. 22, otherwise known as The Bouncing Checks Law.
The factual background of the case is as follows:
On March 27, 1991, three Informations for violation of B.P. Blg. 22 were
filed with the RTC, docketed as Criminal Case Nos. 7068 - 7070. The
Information in Criminal Case No. 7068 alleges as follows:
That, sometime in May or June 1990, in the City of Tagbilaran, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating, and mutually helping with one another,
knowing fully well that they did not have sufficient funds deposited with the
United Coconut Planters Bank (UCPB), Tagbilaran Branch, did then and
there willfully, unlawfully, and feloniously, draw and issue UCPB Check No.
284743 postdated July 7, 1990 in the amount of NINE THOUSAND
SEVENTY-FIVE PESOS AND FIFTY-FIVE CENTAVOS (P9,075.55),
payable to Alfredo Oculam, and thereafter, without informing the latter that
they did not have sufficient funds deposited with the bank to cover up the
amount of the check, did then and there willfully, unlawfully and feloniously
pass on, indorse, give and deliver the said check to Alfredo Oculam by way
of rediscounting of the aforementioned checks; however, upon presentation
of the check to the drawee bank for encashment, the same was dishonored for
the reason that the account of the accused with the United Coconut Planters
Bank, Tagbilaran Branch, had already been closed, to the damage and
prejudice of the said Alfredo Oculam in the aforestated amount.
Acts committed contrary to the provisions of Batas Pambansa Bilang 22.[2]
7070 are similarly worded, except for the allegations concerning the number,
date and amount of each check, that is:
(a) Criminal Case No. 7069 - UCPB Check No. 284744 dated July 22, 1990
in the amount of P12,730.00;[3]
(b) Criminal Case No. 7070 UCPB Check No. 106136 dated July 22, 1990 in
the amount of P8,496.55.[4]
The cases were consolidated and jointly tried. When arraigned on June 26,
1991, the two accused pleaded not guilty to the crimes charged.[5]
The prosecution presented as its lone witness complainant Alfredo Oculam.
He testified that: in 1989, spouses Adronico[6] and Evangeline Ladonga
became his regular customers in his pawnshop business in Tagbilaran City,
Bohol;[7] sometime in May 1990, the Ladonga spouses obtained a P9,075.55
loan from him, guaranteed by United Coconut Planters Bank (UCPB) Check
No. 284743, post dated to dated July 7, 1990 issued by Adronico;[8]
sometime in the last week of April 1990 and during the first week of May
1990, the Ladonga spouses obtained an additional loan of P12,730.00,
guaranteed by UCPB Check No. 284744, post dated to dated July 26, 1990
issued by Adronico;[9] between May and June 1990, the Ladonga spouses
obtained a third loan in the amount of P8,496.55, guaranteed by UCPB
Check No. 106136, post dated to July 22, 1990 issued by Adronico;[10] the
three checks bounced upon presentment for the reason CLOSED
ACCOUNT;[11] when the Ladonga spouses failed to redeem the check,
despite repeated demands, he filed a criminal complaint against them.[12]
While admitting that the checks issued by Adronico bounced because there
was no sufficient deposit or the account was closed, the Ladonga spouses
claimed that the checks were issued only to guarantee the obligation, with an
agreement that Oculam should not encash the checks when they mature;[13]
and, that petitioner is not a signatory of the checks and had no participation
in the issuance thereof.[14]
On August 24, 1996, the RTC rendered a joint decision finding the Ladonga
spouses guilty beyond reasonable doubt of violating B.P. Blg. 22, the
dispositive portion of which reads:
Premises considered, this Court hereby renders judgment finding accused
Adronico Ladonga, alias Ronie, and Evangeline Ladonga guilty beyond
reasonable doubt in the aforesaid three (3) criminal cases, for which they
stand charged before this Court, and accordingly, sentences them to
imprisonment and fine, as follows:
1. In Criminal Case No. 7068, for (sic) an imprisonment of one (1) year for
each of them, and a fine in the amount of P9,075.55, equivalent to the
amount of UCPB Check No. 284743;
2. In Criminal Case No. 7069, for (sic) an imprisonment for each of them to
one (1) year and a fine of P12, 730.00, equivalent to the amount of UCPB
Check No. 284744; and,
3. In Criminal Case No. 7070, with (sic) an imprisonment of one year for
each of them and a fine of P8,496.55 equivalent to the amount of UCPB
Check No. 106136;
4. That both accused are further ordered to jointly and solidarily pay and
reimburse the complainant, Mr. Alfredo Oculam, the sum of P15,000.00
representing actual expenses incurred in prosecuting the instant cases;
P10,000.00 as attorneys fee; and the amount of P30,302.10 which is the total
value of the three (3) subject checks which bounced; but without subsidiary
imprisonment in case of insolvency.
With Costs against the accused.
SO ORDERED.[15]
Adronico applied for probation which was granted.[16] On the other hand,
petitioner brought the case to the Court of Appeals, arguing that the RTC
erred in finding her criminally liable for conspiring with her husband as the
principle of conspiracy is inapplicable to B.P. Blg. 22 which is a special law;
moreover, she is not a signatory of the checks and had no participation in the
issuance thereof.[17]
On May 17, 1999, the Court of Appeals affirmed the conviction of
petitioner.[18] It held that the provisions of the penal code were made
applicable to special penal laws in the decisions of this Court in People vs.
Parel, [19] U.S. vs. Ponte, [20] and U.S. vs. Bruhez.[21] It noted that Article
10 of the Revised Penal Code itself provides that its provisions shall be
supplementary to special laws unless the latter provide the contrary. The
Court of Appeals stressed that since B.P. Blg. 22 does not prohibit the
applicability in a suppletory character of the provisions of the Revised Penal
Code (RPC), the principle of conspiracy may be applied to cases involving
violations of B.P. Blg. 22. Lastly, it ruled that the fact that petitioner did not
make and issue or sign the checks did not exculpate her from criminal
liability as it is not indispensable that a co-conspirator takes a direct part in
every act and knows the part which everyone performed. The Court of
Appeals underscored that in conspiracy the act of one conspirator could be
held to be the act of the other.
Petitioner sought reconsideration of the decision but the Court of Appeals
denied the same in a Resolution dated November 16, 1999.[22]
Hence, the present petition.
Petitioner presents to the Court the following issues for resolution:
1. WHETHER OR NOT THE PETITIONER WHO WAS NOT THE
DRAWER OR ISSUER OF THE THREE CHECKS THAT BOUNCED
BUT HER CO-ACCUSED HUSBAND UNDER THE LATTERS
ACCOUNT COULD BE HELD LIABLE FOR VIOLATIONS OF BATAS
PAMBANSA BILANG 22 AS CONSPIRATOR.
2. ANCILLARY TO THE MAIN ISSUE ARE THE FOLLOWING ISSUES:
A. WHETHER OR NOT CONSPIRACY IS APPLICABLE IN
VIOLATIONS OF BATAS PAMBANSA BILANG 22 BY INVOKING THE
LAST SENTENCE OF ARTICLE 10 OF THE REVISED PENAL CODE
WHICH STATES:
Art. 10. Offenses not subject of the provisions of this Code. Offenses which
are or in the future may be punished under special laws are not subject to the
provisions of this Code. This Code shall be supplementary to such laws,
unless the latter should specially provide the contrary.
B. WHETHER OR NOT THE CASES CITED BY THE HONORABLE
COURT OF APPEALS IN AFFIRMING IN TOTO THE CONVICTION OF
PETITIONER AS CONSPIRATOR APPLYING THE SUPPLETORY
CHARACTER OF THE REVISED PENAL CODE TO SPECIAL LAWS
LIKE B.P. BLG. 22 IS APPLICABLE.[23]
Petitioner staunchly insists that she cannot be held criminally liable for
violation of B.P. Blg. 22 because she had no participation in the drawing and
issuance of the three checks subject of the three criminal cases, a fact proven
by the checks themselves. She contends that the Court of Appeals gravely
erred in applying the principle of conspiracy, as defined under the RPC, to
violations of B.P. Blg. 22. She posits that the application of the principle of
conspiracy would enlarge the scope of the statute and include situations not
provided for or intended by the lawmakers, such as penalizing a person, like
petitioner, who had no participation in the drawing or issuance of checks.
The Office of the Solicitor General disagrees with petitioner and echoes the
declaration of the Court of Appeals that some provisions of the Revised
Penal Code, especially with the addition of the second sentence in Article 10,
are applicable to special laws. It submits that B.P. Blg. 22 does not provide
any prohibition regarding the applicability in a suppletory character of the
provisions of the Revised Penal Code to it.
Article 10 of the RPC reads as follows:
ART. 10. Offenses not subject to the provisions of this Code. Offenses which
are or in the future may be punishable under special laws are not subject to
the provisions of this Code. This Code shall be supplementary to such laws,
unless the latter should specially provide the contrary.
The article is composed of two clauses. The first provides that offenses
which in the future are made punishable under special laws are not subject to
the provisions of the RPC, while the second makes the RPC supplementary
to such laws. While it seems that the two clauses are contradictory, a sensible
interpretation will show that they can perfectly be reconciled.
The first clause should be understood to mean only that the special penal
laws are controlling with regard to offenses therein specifically punished.
Said clause only restates the elemental rule of statutory construction that
special legal provisions prevail over general ones.[24] Lex specialis derogant
generali. In fact, the clause can be considered as a superfluity, and could
have been eliminated altogether. The second clause contains the soul of the
article. The main idea and purpose of the article is embodied in the provision
that the "code shall be supplementary" to special laws, unless the latter
should specifically provide the contrary.
The appellate courts reliance on the cases of People vs. Parel,[25] U.S. vs.
Ponte,[26] and U.S. vs. Bruhez[27] rests on a firm basis. These cases
involved the suppletory application of principles under the then Penal Code
to special laws. People vs. Parel is concerned with the application of Article
22[28] of the Code to violations of Act No. 3030, the Election Law, with
reference to the retroactive effect of penal laws if they favor the accused.
U.S. vs. Ponte involved the application of Article 17[29] of the same Penal
Code, with reference to the participation of principals in the commission of
the crime of misappropriation of public funds as defined and penalized by
Act No. 1740. U.S. vs. Bruhez covered Article 45[30] of the same Code, with
reference to the confiscation of the instruments used in violation of Act No.
1461, the Opium Law.
B.P. Blg. 22 does not expressly proscribe the suppletory application of the
provisions of the RPC. Thus, in the absence of contrary provision in B.P.
Blg. 22, the general provisions of the RPC which, by their nature, are
necessarily applicable, may be applied suppletorily. Indeed, in the recent case
of Yu vs. People,[31] the Court applied suppletorily the provisions on
subsidiary imprisonment under Article 39[32] of the RPC to B.P. Blg. 22.
The suppletory application of the principle of conspiracy in this case is
analogous to the application of the provision on principals under Article 17
in U.S. vs. Ponte. For once conspiracy or action in concert to achieve a
criminal design is shown, the act of one is the act of all the conspirators, and
the precise extent or modality of participation of each of them becomes
secondary, since all the conspirators are principals.[33]
All these notwithstanding, the conviction of the petitioner must be set aside.
Article 8 of the RPC provides that a conspiracy exists when two or more
persons come to an agreement concerning the commission of a felony and
decide to commit it. To be held guilty as a co-principal by reason of
conspiracy, the accused must be shown to have performed an overt act in
pursuance or furtherance of the complicity.[34] The overt act or acts of the
accused may consist of active participation in the actual commission of the
crime itself or may consist of moral assistance to his co-conspirators by
moving them to execute or implement the criminal plan.[35]
In the present case, the prosecution failed to prove that petitioner performed
any overt act in furtherance of the alleged conspiracy. As testified to by the
lone prosecution witness, complainant Alfredo Oculam, petitioner was
merely present when her husband, Adronico, signed the check subject of
Criminal Case No. 7068.[36] With respect to Criminal Case Nos. 7069-7070,
Oculam also did not describe the details of petitioners participation. He did
not specify the nature of petitioners involvement in the commission of the
crime, either by a direct act of participation, a direct inducement of her co-
conspirator, or cooperating in the commission of the offense by another act
without which it would not have been accomplished. Apparently, the only
semblance of overt act that may be attributed to petitioner is that she was
present when the first check was issued. However, this inference cannot be
stretched to mean concurrence with the criminal design.
Conspiracy must be established, not by conjectures, but by positive and
conclusive evidence.[37] Conspiracy transcends mere companionship and
mere presence at the scene of the crime does not in itself amount to
conspiracy.[38] Even knowledge, acquiescence in or agreement to cooperate,
is not enough to constitute one as 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.[39]
As the Court eloquently pronounced in a case of recent vintage, People vs.
Mandao:[40]
To be sure, conspiracy is not a harmless innuendo to be taken lightly or
accepted at every turn. It is a legal concept that imputes culpability under
specific circumstances; as such, it must be established as clearly as any
element of the crime. Evidence to prove it must be positive and convincing,
considering that it is a convenient and simplistic device by which the accused
may be ensnared and kept within the penal fold.
Criminal liability cannot be based on a general allegation of conspiracy, and
a judgment of conviction must always be founded on the strength of the
prosecutions evidence. The Court ruled thus in People v. Legaspi, from
which we quote:
At most, the prosecution, realizing the weakness of its evidence against
accused-appellant Franco, merely relied and pegged the latters criminal
liability on its sweeping theory of conspiracy, which to us, was not attendant
in the commission of the crime.
The rule is firmly entrenched that a judgment of conviction must be
predicated on the strength of the evidence for the prosecution and not on the
weakness of the evidence for the defense. The proof against him must
survive the test of reason; the strongest suspicion must not be permitted to
sway judgment. The conscience must be satisfied that on the defense could
be laid the responsibility for the offense charged; that not only did he
perpetrate the act but that it amounted to a crime. What is required then is
moral certainty.
Verily, it is the role of the prosecution to prove the guilt of the appellant
beyond reasonable doubt in order to overcome the constitutional presumption
of innocence.
In sum, conviction must rest on hard evidence showing that the accused is
guilty beyond reasonable doubt of the crime charged. In criminal cases,
moral certainty -- not mere possibility -- determines the guilt or the
innocence of the accused. Even when the evidence for the defense is weak,
the accused must be acquitted when the prosecution has not proven guilt with
the requisite quantum of proof required in all criminal cases. (Citations
omitted)[41]
All told, the prosecution failed to establish the guilt of the petitioner with
moral certainty. Its evidence falls short of the quantum of proof required for
conviction. Accordingly, the constitutional presumption of the petitioners
innocence must be upheld and she must be acquitted.
WHEREFORE, the instant petition is GRANTED. The assailed Decision,
dated May 17, 1999, of the Court of Appeals in CA-G.R. CR No. 20443
affirming the Decision, dated August 24, 1996, of the Regional Trial Court
(Branch 3), Bohol, in Criminal Case Nos. 7068, 7069 and 7070 convicting
the petitioner of violation of B.P. Blg. 22 is hereby REVERSED and SET
ASIDE. Petitioner Evangeline Ladonga is ACQUITTED of the charges
against her under B.P. Blg. 22 for failure of the prosecution to prove her guilt
beyond reasonable doubt. No pronouncement as to costs.
 For resolution is petitioner’s Motion for Reconsideration1 assailing the
Decision dated September 23, 2005, the dispositive portion of which states:

WHEREFORE, the petition is DISMISSED. The resolutions dated

July 12, 2004 and September 6, 2004 of the Office of the Special
Prosecutor, are AFFIRMED.

SO ORDERED.2

Petitioner claims that the Office of the Ombudsman gravely abused its
discretion in recommending the filing of 24 informations against him for
violation of Section 7 of Republic Act (RA) No. 3019 or the Anti-Graft and
Corrupt Practices Act; that the Ombudsman cannot revive the
aforementioned cases which were previously dismissed by the
Sandiganbayan in its Resolution of February 10, 2004; that the defense of
prescription may be raised even for the first time on appeal and thus there is
no necessity for the presentation of evidence thereon before the court a quo.
Thus, this Court may accordingly dismiss Criminal Case Nos. 28031-28049
pending before the Sandiganbayan and Criminal Case Nos. 04-231857–04-
231860 pending before the Regional Trial Court of Manila, all on the ground
of prescription.

In its Comment,3 the Ombudsman argues that the dismissal of the

informations in Criminal Case Nos. 13406-13429 does not mean that
petitioner was thereafter exempt from criminal prosecution; that new
informations may be filed by the Ombudsman should it find probable cause
in the conduct of its preliminary investigation; that the filing of the complaint
with the Presidential Commission on Good Government (PCGG) in 1987 and
the filing of the information with the Sandiganbayan in 1989 interrupted the
G.R. Nos. 165510-33 July 28, 2006 prescriptive period; that the absence of the petitioner from the Philippines
from 1986 until 2000 also interrupted the aforesaid period based on Article
BENJAMIN ("KOKOY") T. ROMUALDEZ, petitioner, 91 of the Revised Penal Code.
vs.
HON. SIMEON V. MARCELO, in his official capacity as the For its part, the PCGG avers in its Comment4 that, in accordance with the
Ombudsman, and PRESIDENTIAL COMMISSION ON GOOD 1987 Constitution and RA No. 6770 or the Ombudsman Act of 1989, the
GOVERNMENT, respondents. Omdudsman need not wait for a new complaint with a new docket number
for it to conduct a preliminary investigation on the alleged offenses of the
RESOLUTION petitioner; that considering that both RA No. 3019 and Act No. 3326 or the
Act To Establish Periods of Prescription For Violations Penalized By Special
YNARES-SANTIAGO, J.: Acts and Municipal Ordinances and to Provide When Prescription Shall
Begin To Run, are silent as to whether prescription should begin to run when
the offender is absent from the Philippines, the Revised Penal Code, which
answers the same in the negative, should be applied.
The issues for resolution are: (1) whether the preliminary investigation
conducted by the Ombudsman in Criminal Case Nos. 13406-13429 was a
nullity; and (2) whether the offenses for which petitioner are being charged
have already prescribed.
Anent the first issue, we reiterate our ruling in the assailed Decision that the
preliminary investigation conducted by the Ombudsman in Criminal Case
Nos. 13406-13429 is a valid proceeding despite the previous dismissal
thereof by the Sandiganbayan in its Minute Resolution5 dated February 10,
2004 which reads:
Crim. Cases Nos. 13406-13429–PEO. vs. BENJAMIN T.
ROMUALDEZ
Considering that the Decision of the Honorable Supreme Court in
G.R. Nos. 143618-41, entitled "Benjamin ‘Kokoy’ Romualdez vs.
The Honorable Sandiganbayan (First Division, et al.)" promulgated
on July 30, 2002 annulled and set aside the orders issued by this
Court on June 8, 2000 which, among others, denied the accused’s
motion to quash the informations in these cases; that in particular the
above-mentioned Decision ruled that the herein informations may be
quashed because the officer who filed the same had no authority to
do so; and that the said Decision has become final and executory on
November 29, 2002, these cases are considered DISMISSED. Let
these cases be sent to the archives.
The aforesaid dismissal was effected pursuant to our ruling in Romualdez v.
Sandiganbayan6 where petitioner assailed the Sandiganbayan’s Order dated
June 8, 2000 in Criminal Case Nos. 13406-13429 which denied his Motion to
Quash, terminated the preliminary investigation conducted by Prosecutor
Evelyn T. Lucero and set his arraignment for violations of Section 7 of RA
No. 3019 on June 26, 2000.7 In annulling and setting aside the aforesaid
Order of the Sandiganbayan, we held that:
In the case at bar, the flaw in the information is not a mere
remediable defect of form, as in Pecho v. Sandiganbayan where the
wording of the certification in the information was found inadequate,
or in People v. Marquez, where the required certification was absent.
Here, the informations were filed by an unauthorized party. The
defect cannot be cured even by conducting another preliminary
investigation. An invalid information is no information at all and
cannot be the basis for criminal proceedings.8
In effect, we upheld in Romualdez v. Sandiganbayan9 petitioner’s Motion to
Quash and directed the dismissal of Criminal Case Nos. 13406-13429
because the informations were filed by an unauthorized party, hence void.
In such a case, Section 6, Rule 117 of the Rules of Court is pertinent and
applicable. Thus:
SEC. 6. Order sustaining the motion to quash not a bar to another
prosecution; exception. – An order sustaining the motion to quash is
not a bar to another prosecution for the same offense unless the
motion was based on the grounds specified in section 3(g) and (i)10
of this Rule.
An order sustaining a motion to quash on grounds other than extinction of
criminal liability or double jeopardy does not preclude the filing of another
information for a crime constituting the same facts. Indeed, we held in Cudia
v. Court of Appeals11 that:
In fine, there must have been a valid and sufficient complaint or
information in the former prosecution. If, therefore, the complaint or
information was insufficient because it was so defective in form or
substance that the conviction upon it could not have been sustained,
its dismissal without the consent of the accused cannot be pleaded.
As the fiscal had no authority to file the information, the dismissal of
the first information would not be a bar in petitioner’s subsequent
prosecution. x x x.12
Be that as it may, the preliminary investigation conducted by the
Ombudsman in the instant cases was not a violation of petitioner’s right to be
informed of the charges against him. It is of no moment that the cases
investigated by the Ombudsman bore the same docket numbers as those
cases which have already been dismissed by the Sandiganbayan, to wit:
Criminal Case Nos. 13406-13429. As we have previously stated:
The assignment of a docket number is an internal matter designed for
efficient record keeping. It is usually written in the Docket Record in
sequential order corresponding to the date and time of filing a case.
 This Court agrees that the use of the docket numbers of the
dismissed cases was merely for reference. In fact, after the new
informations were filed, new docket numbers were assigned, i.e.,
Criminal Cases Nos. 28031-28049 x x x.13
Besides, regardless of the docket numbers, the Ombudsman conducted the
above-referred preliminary investigation pursuant to our Decision in
Romualdez v. Sandiganbayan14 when we categorically declared therein that:
The Sandiganbayan also committed grave abuse of discretion when it
abruptly terminated the reinvestigation being conducted by
Prosecutor Lucero. It should be recalled that our directive in G.R.
No. 105248 for the holding of a preliminary investigation was based
on our ruling that the right to a preliminary investigation is a
substantive, rather than a procedural right. Petitioner’s right was
violated when the preliminary investigation of the charges against
him were conducted by an officer without jurisdiction over the said
cases. It bears stressing that our directive should be strictly complied
with in order to achieve its objective of affording petitioner his right
to due process.15
Anent the issue on the prescription of the offenses charged, we should first
resolve the question of whether this Court may validly take cognizance of
and resolve the aforementioned issue considering that as we have said in the
assailed Decision, "this case has never progressed beyond the filing of the
informations against the petitioner"16 and that "it is only prudent that
evidence be gathered through trial on the merits to determine whether the
offense charged has already prescribed."17 We reconsider our stance and shall
rule in the affirmative.
Rule 117 of the Rules of Court provides that the accused may, at any time
before he enters his plea, move to quash the complaint and information18 on
the ground that the criminal action or liability has been extinguished,19 which
ground includes the defense of prescription considering that Article 89 of the
Revised Penal Code enumerates prescription as one of those grounds which
totally extinguishes criminal liability. Indeed, even if there is yet to be a trial
on the merits of a criminal case, the accused can very well invoke the defense
of prescription.
Thus, the question is whether or not the offenses charged in the subject
criminal cases have prescribed? We held in the case of Domingo v.
Sandiganbayan20 that:
In resolving the issue of prescription of the offense charged, the
following should be considered: (1) the period of prescription for the
offense charged; (2) the time the period of prescription starts to run;
and (3) the time the prescriptive period was interrupted.21
Petitioner is being charged with violations of Section 7 of RA No. 3019 for
failure to file his Statements of Assets and Liabilities for the period 1967-
1985 during his tenure as Ambassador Extraordinary and Plenipotentiary and
for the period 1963-1966 during his tenure as Technical Assistant in the
Department of Foreign Affairs.
Section 11 of RA No. 3019 provides that all offenses punishable therein shall
prescribe in 15 years. Significantly, this Court already declared in the case of
People v. Pacificador22 that:
It appears however, that prior to the amendment of Section 11 of
R.A. No. 3019 by B.P. Blg. 195 which was approved on March 16,
1982, the prescriptive period for offenses punishable under the said
statute was only ten (10) years. The longer prescriptive period of
fifteen (15) years, as provided in Section 11 of R.A. No. 3019 as
amended by B.P. Blg. 195, does not apply in this case for the reason
that the amendment, not being favorable to the accused (herein
private respondent), cannot be given retroactive effect. Hence, the
crime prescribed on January 6, 1986 or ten (10) years from January
6, 1976.23
Thus, for offenses allegedly committed by the petitioner from 1962 up to
March 15, 1982, the same shall prescribe in 10 years. On the other hand, for
offenses allegedly committed by the petitioner during the period from March
16, 1982 until 1985, the same shall prescribe in 15 years.
As to when these two periods begin to run, reference is made to Act No.
3326 which governs the computation of prescription of offenses defined by
and penalized under special laws. Section 2 of Act No. 3326 provides:
SEC. 2. Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same be not known
at the time, from the discovery thereof and the institution of judicial
proceedings for its investigation and punishment.
 The prescription shall be interrupted when proceedings are instituted
against the guilty person, and shall begin to run again if the
proceedings are dismissed for reasons not constituting jeopardy.
In the case of People v. Duque,24 we construed the aforequoted provision,
specifically the rule on the running of the prescriptive period as follows:
In our view, the phrase "institution of judicial proceedings for its
investigation and punishment" may be either disregarded as
surplusage or should be deemed preceded by the word "until." Thus,
Section 2 may be read as:
"Prescription shall begin to run from the day of the
commission of the violation of the law; and if the same be
not known at the time, from the discovery thereof;"
or as:
"Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same be
not known at the time, from the discovery thereof and until
institution of judicial proceedings for its investigation and
punishment." (Emphasis supplied)25
Thus, this Court rules that the prescriptive period of the offenses herein
began to run from the discovery thereof or on May 8, 1987, which is the date
of the complaint filed by the former Solicitor General Francisco I. Chavez
against the petitioner with the PCGG.
In the case of Presidential Ad Hoc Fact-Finding Committee on Behest Loans
v. Desierto26 this Court already took note that:
In cases involving violations of R.A. No. 3019 committed prior to
the February 1986 EDSA Revolution that ousted President Ferdinand
E. Marcos, we ruled that the government as the aggrieved party
could not have known of the violations at the time the questioned
transactions were made. Moreover, no person would have dared to
question the legality of those transactions. Thus, the counting of the
prescriptive period commenced from the date of discovery of the
offense in 1992 after an exhaustive investigation by the Presidential
Ad Hoc Committee on Behest Loans.27
However, both respondents in the instant case aver that, applying Article 91
of the Revised Penal Code suppletorily, the absence of the petitioner from the
Philippines from 1986 until April 27, 2000 prevented the prescriptive period
for the alleged offenses from running.
We disagree.
Section 2 of Act. No. 3326 is conspicuously silent as to whether the absence
of the offender from the Philippines bars the running of the prescriptive
period. The silence of the law can only be interpreted to mean that Section 2
of Act No. 3326 did not intend such an interruption of the prescription unlike
the explicit mandate of Article 91. Thus, as previously held:
Even on the assumption that there is in fact a legislative gap caused
by such an omission, neither could the Court presume otherwise and
supply the details thereof, because a legislative lacuna cannot be
filled by judicial fiat. Indeed, courts may not, in the guise of the
interpretation, enlarge the scope of a statute and include therein
situations not provided nor intended by the lawmakers. An omission
at the time of the enactment, whether careless or calculated, cannot
be judicially supplied however after later wisdom may recommend
the inclusion. Courts are not authorized to insert into the law what
they think should be in it or to supply what they think the legislature
would have supplied if its attention has been called to the omission.28
The only matter left to be resolved is whether the filing of the complaint with
the PCGG in 1987 as well as the filing of the informations with the
Sandiganbayan to initiate Criminal Case Nos. 13406-13429 in 1989
interrupted the running of the prescriptive period such that when the
Ombudsman directed petitioner to file his counter-affidavit on March 3,
2004, the offenses have already prescribed.
Under Section 2 of Act No. 3326, the prescriptive period shall be interrupted
"when proceedings are instituted against the guilty person." However, there
is no such proceeding instituted against the petitioner to warrant the tolling of
the prescriptive periods of the offenses charged against him.
In Romualdez v. Sandiganbayan,29 petitioner averred that PCGG acted
without jurisdiction and/or grave abuse of discretion in conducting a
preliminary investigation of cases not falling within its competence.30 This
Court, in its resolve to "deal with the merits of the case to remove the
possibility of any misunderstanding as to the course which it wishes
petitioner’s cases in the Sandiganbayan to take"31declared invalid –
the preliminary investigation conducted by the PCGG over the 24
offenses ascribed to Romualdez (of failure to file annual statements
of assets and liabilities), for lack of jurisdiction of said offenses.32
In Romualdez v. Sandiganbayan,33 petitioner assailed the validity of the
informations filed with the Sandiganbayan in Criminal Case Nos. 13406-
13429 considering that the same were subscribed and filed by the PCGG. In
granting petitioner’s plea, this Court held, thus:
Here, the informations were filed by an unauthorized party. The defect
cannot be cured by conducting another preliminary investigation. An invalid
information is no information at all and cannot be the basis for criminal
proceedings.34
Indeed, the nullity of the proceedings initiated by then Solicitor General
Chavez in 1987 with the PCGG and by the PCGG with the Sandiganbayan in
1989 is judicially settled. In contemplation of the law, no proceedings exist
that could have merited the suspension of the prescriptive periods.
Besides, the only proceeding that could interrupt the running of prescription
is that which is filed or initiated by the offended party before the appropriate
body or office. Thus, in the case of People v. Maravilla,35 this Court ruled
that the filing of the complaint with the municipal mayor for purposes of
preliminary investigation had the effect of suspending the period of
prescription. Similarly, in the case of Llenes v. Dicdican,36 this Court held
that the filing of a complaint against a public officer with the Ombudsman
tolled the running of the period of prescription.
In the case at bar, however, the complaint was filed with the wrong body, the
PCGG. Thus, the same could not have interrupted the running of the
prescriptive periods.
However, in his Dissenting Opinion, Mr. Justice Carpio contends that the
offenses charged against the petitioner could not have prescribed because the
latter was absent from the Philippines from 1986 to April 27, 2000 and thus
the prescriptive period did not run from the time of discovery on May 8,
1987, citing Article 91 of the Revised Penal Code which provides that "[t]he
term of prescription should not run when the offender is absent from the
Philippine Archipelago."
Mr. Justice Carpio argues that –
Article 10 of the same Code makes Article 91 "x x x supplementary
to [special laws], unless the latter should x x x provide the contrary."
Nothing in RA 3019 prohibits the supplementary application of
Article 91 to that law. Hence, applying Article 91, the prescriptive
period in Section 11 of RA 3019, before and after its amendment,
should run only after petitioner returned to this jurisdiction on 27
April 2000.
There is no gap in the law. Where the special law is silent, Article 10
of the RPC applies suppletorily, as the Court has held in a long line
of decisions since 1934, starting with People v. Moreno. Thus, the
Court has applied suppletorily various provisions of the RPC to
resolve cases where the special laws are silent on the matters in
issue. The law on the applicability of Article 10 of the RPC is thus
well-settled, with the latest reiteration made by this Court in 2004 in
Jao Yu v. People.
He also expresses his apprehension on the possible effects of the ruling of the
Majority Opinion and argues that –
The accused should not have the sole discretion of preventing his
own prosecution by the simple expedient of escaping from the
State’s jurisdiction. x x x An accused cannot acquire legal immunity
by being a fugitive from the State’s jurisdiction. x x x.
To allow an accused to prevent his prosecution by simply leaving
this jurisdiction unjustifiably tilts the balance of criminal justice in
favor of the accused to the detriment of the State’s ability to
investigate and prosecute crimes. In this age of cheap and accessible
global travel, this Court should not encourage individuals facing
investigation or prosecution for violation of special laws to leave
Philippine jurisdiction to sit-out abroad the prescriptive period. The
majority opinion unfortunately chooses to lay the basis for such
anomalous practice.
With all due respect, we beg to disagree.
Article 10 of the Revised Penal Code provides:
ART. 10. Offenses not subject to the provisions of this Code. –
Offenses which are or in the future may be punishable under special
laws are not subject to the provisions of this Code. This Code shall
be supplementary to such laws, unless the latter should specially
provide the contrary.
Pursuant thereto, one may be tempted to hastily conclude that a special law
such as RA No. 3019 is supplemented by the Revised Penal Code in any and
all cases. As it is, Mr. Justice Carpio stated in his Dissenting Opinion that –
There is no gap in the law. Where the special law is silent, Article 10
of the RPC applies suppletorily, as the Court has held in a long line
of decisions since 1934, starting with People v. Moreno. Thus, the
Court has applied suppletorily various provisions of the RPC to
resolve cases where the special laws are silent on the matters in
issue. The law on the applicability of Article 10 of the RPC is thus
well-settled, with the latest reiteration made by this Court in 2004 in
Jao Yu v. People.
However, it must be pointed out that the suppletory application of the
Revised Penal Code to special laws, by virtue of Article 10 thereof, finds
relevance only when the provisions of the special law are silent on a
particular matteras evident from the cases cited and relied upon in the
Dissenting Opinion:
In the case of People v. Moreno,37 this Court, before ruling that the
subsidiary penalty under Article 39 of the Revised Penal Code may be
applied in cases of violations of Act No. 3992 or the Revised Motor Vehicle
Law, noted that the special law did not contain any provision that the
defendant can be sentenced with subsidiary imprisonment in case of
insolvency.
In the case of People v. Li Wai Cheung,38 this Court applied the rules on the
service of sentences provided in Article 70 of the Revised Penal Code in
favor of the accused who was found guilty of multiple violations of RA No.
6425 or The Dangerous Drugs Act of 1972 considering the lack of similar
rules under the special law.
In the case of People v. Chowdury,39 the Court applied Articles 17, 18 and 19
of the Revised Penal Code to define the words "principal," "accomplices"
and "accessories" under RA No. 8042 or the Migrant Workers and Overseas
Filipinos Act of 1995 because it was not defined therein although it referred
to the same terms in enumerating the persons liable for the crime of illegal
recruitment.
In the case at bar, the silence of RA No. 3019 on the question of whether or
not the absence of the accused from the Philippines prevents or tolls the
running of the prescriptive period is more apparent than real.
Even before the enactment of RA No. 3019 in 1960, Act No. 3326 was
already in effect as early as December 4, 1926. Section 3 thereof
categorically defines "special acts" as "acts defining and penalizing
violations of the law not included in the Penal Code".
Thus, in the case of Presidential Ad Hoc Fact-Finding Committee on Behest
Loans v. Desierto,40 this Court was categorical in ruling that –
The law on prescription of offenses is found in Articles 90 and 91 of
the Revised Penal Code for offenses punishable thereunder. For
those penalized under special laws, Act No. 3326 applies.
Section 2 of Act No. 3326 provides that the prescription shall begin to run
from the day of the commission of the violation of the law, and if the same
be not known at the time, from the discovery thereof and the institution of
judicial proceedings for its investigation and punishment. The running of
the prescriptive period shall be interrupted when proceedings are
instituted against the guilty person, and shall begin to run again if the
proceedings are dismissed for reasons not constituting jeopardy. Clearly,
Section 2 of Act No. 3326 did not provide that the absence of the accused
from the Philippines prevents the running of the prescriptive period. Thus,
the only inference that can be gathered from the foregoing is that the
legislature, in enacting Act No. 3326, did not consider the absence of the
accused from the Philippines as a hindrance to the running of the prescriptive
period. Expressio unius est exclusio alterius. To elaborate, -
Indeed, it is an elementary rule of statutory construction that the
express mention of one person, thing, act, or consequence excludes
all others. This rule is expressed in the familiar maxim "expressio
unius est exclusio alterius." Where a statute, by its terms, is expressly
limited to certain matters, it may not, by interpretation or
 construction, be extended to others. The rule proceeds from the
premise that the legislature would not have made specified
enumerations in a statute had the intention been not to restrict its
meaning and to confine its terms to those expressly mentioned.41
Had the legislature intended to include the accused’s absence from the
Philippines as a ground for the interruption of the prescriptive period in
special laws, the same could have been expressly provided in Act No. 3326.
A case in point is RA No. 8424 or the Tax Reform Act of 1997 where the
legislature made its intention clear and was thus categorical that –
SEC. 281. Prescription for Violations of any Provision of this
Code – All violations of any provision of this Code shall prescribe
after five (5) years.
Prescription shall begin to run from the day of the commission of the
violation of the law, and if the same be not known at the time, from
the discovery thereof and the institution of judicial proceedings for
its investigation and punishment.
The prescription shall be interrupted when proceedings are instituted
against the guilty persons and shall begin to run again if the
proceedings are dismissed for reasons not constituting jeopardy.
The term of prescription shall not run when the offender is
absent from the Philippines. (Emphasis supplied)
According to Mr. Justice Carpio, Article 91 of the Revised Penal Code fills
the so-called "gap" in Act No. 3326. Thus, while Act No. 3326 governs the
operation of the prescriptive period for violations of R.A. No. 3019, Article
91 of the Revised Penal Code can and shall still be applied in cases where the
accused is absent from the Philippines. In effect, Article 91 would
supplement Act No. 3326.
This could not have been the intention of the framers of the law.
While it is true that Article 10 of the Revised Penal Code makes the Code
suppletory to special laws, however, Act No. 3326 cannot fall within the
ambit of "special law" as contemplated and used in Article 10 of the RPC.
In the case of United States v. Serapio,42 the Court had the occasion to
interpret the term "special laws" mentioned in Article 7 of then Penal Code
of the Philippines, which is now Article 10 of the Revised Penal Code, as
referring to penal laws that punish acts not defined and penalized by the
Penal Code of the Philippines. Thus –
This contention makes it necessary to define "special laws," as that
phrase is used in article 7 of the Penal Code. Does this phrase "leyes
especiales," as used in the Penal Code (article 7) have the meaning
applied to the phrase "special laws," as the same is generally used? x
x x It is confidently contended that the phrase "leyes especiales," as
used in the Penal Code (article 7) is not used with this general
signification: In fact, said phrase may refer not to a special law as
above defined, but to a general law. A careful reading of said article
7 clearly indicates that the phrase "leyes especiales" was not used to
signify "special laws" in the general signification of that phrase. The
article, it will be noted, simply says, in effect, that when a crime is
made punishable under some other law than the Penal Code, it (the
crime) is not subject to the provisions of said code.43
Even if we consider both Act No. 3326 and Article 91 as supplements to RA
No. 3019, the same result would obtain. A conflict will arise from the
contemporaneous application of the two laws. The Revised Penal Code
explicitly states that the absence of the accused from the Philippines shall be
a ground for the tolling of the prescriptive period while Act No. 3326 does
not. In such a situation, Act No. 3326 must prevail over Article 91 because it
specifically and directly applies to special laws while the Revised Penal
Code shall apply to special laws only suppletorily and only when the latter
do not provide the contrary. Indeed, elementary rules of statutory
construction dictate that special legal provisions must prevail over general
ones.
The majority notes Mr. Justice Carpio’s reservations about the effects of
ruling that the absence of the accused from the Philippines shall not suspend
the running of the prescriptive period. Our duty, however, is only to interpret
the law. To go beyond that and to question the wisdom or effects of the law
is certainly beyond our constitutionally mandated duty. As we have already
explained –
Even on the assumption that there is in fact a legislative gap caused
by such an omission, neither could the Court presume otherwise and
supply the details thereof, because a legislative lacuna cannot be
 filled by judicial fiat. Indeed, courts may not, in the guise of
interpretation, enlarge the scope of a statute and include therein
situations not provided nor intended by the lawmakers. An omission
at the time of the enactment, whether careless or calculated, cannot
be judicially supplied however after later wisdom may recommend
the inclusion. Courts are not authorized to insert into the law what
they think should be in it or to supply what they think the legislature
would have supplied if its attention has been called to the omission.44
Mr. Justice Carpio also remarks that the liberal interpretation of the statute of
limitations in favor of the accused only relates to the following issues: (1)
retroactive or prospective application of laws providing or extending the
prescriptive period; (2) the determination of the nature of the felony
committed vis-à-vis the applicable prescriptive period; and (3) the reckoning
of when the prescriptive period runs. Therefore, the aforementioned principle
cannot be utilized to support the Majority Opinion’s conclusion that the
prescriptive period in a special law continues to run while the accused is
abroad.
We take exception to the foregoing proposition.
We believe that a liberal interpretation of the law on prescription in criminal
cases equally provides the authority for the rule that the prescriptive period
runs while the accused is outside of Philippine jurisdiction. The nature of the
law on prescription of penal statutes supports this conclusion. In the old but
still relevant case of People v. Moran,45 this Court extensively discussed the
rationale behind and the nature of prescription of penal offenses –
"We should at first observe that a mistake is sometimes made in
applying to statutes of limitation in criminal suits the construction
that has been given to statutes of limitation in civil suits. The two
classes of statutes, however, are essentially different. In civil suits
the statute is interposed by the legislature as an impartial arbiter
between two contending parties. In the construction of the statute,
therefore, there is no intendment to be made in favor of either party.
Neither grants the right to the other; there is therefore no grantor
against whom the ordinary presumptions, of construction are to be
made. But it is, otherwise when a statute of limitation is granted by
the State. Here the State is the grantor, surrendering by act of grace
its rights to prosecute, and declaring the offense to be no longer the
subject of prosecution.' The statute is not a statute of process, to
be scantily and grudgingly applied, but an amnesty, declaring
that after a certain time oblivion shall be cast over the offence;
that the offender shall be at liberty to return to his country, and
resume his immunities as a citizen and that from henceforth he
may cease to preserve the proofs of his innocence, for the proofs
of his guilt are blotted out. Hence it is that statutes of limitation are
to be liberally construed in favor of the defendant, not only because
such liberality of construction belongs to all acts of amnesty and
grace, but because the very existence of the statute, is a recognition
and notification by the legislature of the fact that time, while it
gradually wears out proofs of innocence, has assigned to it fixed and
positive periods in which it destroys proofs of guilt. Independently of
these views, it must be remembered that delay in instituting
prosecutions is not only productive of expense to the State, but of
peril to public justice in the attenuation and distortion, even by mere
natural lapse of memory, of testimony. It is the policy of the law that
prosecutions should be prompt, and that statutes, enforcing such
promptitude should be vigorously maintained. They are not merely
acts of grace, but checks imposed by the State upon itself, to exact
vigilant activity from its subalterns, and to secure for criminal trials
the best evidence that can be obtained." (Emphasis supplied)
Indeed, there is no reason why we should deny petitioner the benefits
accruing from the liberal construction of prescriptive laws on criminal
statutes. Prescription emanates from the liberality of the State. Any bar to or
cause of interruption in the operation of prescriptive periods cannot simply
be implied nor derived by mere implication. Any diminution of this
endowment must be directly and expressly sanctioned by the source itself,
the State. Any doubt on this matter must be resolved in favor of the grantee
thereof, the accused.
The foregoing conclusion is logical considering the nature of the laws on
prescription. The exceptions to the running of or the causes for the
interruption of the prescriptive periods may and should not be easily implied.
The prescriptive period may only be prevented from operating or may only
be tolled for reasons explicitly provided by the law.
In the case of People v. Pacificador,46 we ruled that:
It bears emphasis, as held in a number of cases, that in the
interpretation of the law on prescription of crimes, that which is
more favorable to the accused is to be adopted. The said legal
principle takes into account the nature of the law on prescription of
 crimes which is an act of amnesty and liberality on the part of the SO ORDERED.
state in favor of the offender. In the case of People v. Moran, this
Court amply discussed the nature of the statute of limitations in
criminal cases, as follows:

The statute is not statute of process, to be scantily and

grudgingly applied, but an amnesty, declaring that after a
certain time oblivion shall be cast over the offense; that the
offender shall be at liberty to return to his country, and
resume his immunities as a citizen; and that from henceforth
he may cease to preserve the proofs of his innocence, for the
proofs of his guilt are blotted out. Hence, it is that statues of
limitation are to be liberally construed in favor of the
defendant, not only because such liberality of construction
belongs to all acts of amnesty and grace, but because the
very existence of the statute is a recognition and notification
by the legislature of the fact that time, while it gradually
wears out proofs of innocence, has assigned to it fixed and
positive periods in which it destroys proofs of guilt.47
G.R. No. 93028 July 29, 1994
In view of the foregoing, the applicable 10-and-15-year prescriptive periods
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
in the instant case, were not interrupted by any event from the time they
vs.
began to run on May 8, 1987. As a consequence, the alleged offenses
MARTIN SIMON y SUNGA, respondent.
committed by the petitioner for the years 1963-1982 prescribed 10 years
from May 8, 1987 or on May 8, 1997. On the other hand, the alleged offenses
committed by the petitioner for the years 1983-1985 prescribed 15 years The Solicitor General for plaintiff-appellee.
from May 8, 1987 or on May 8, 2002.
Ricardo M.Sampang for accused-appellant.
Therefore, when the Office of the Special Prosecutor initiated the preliminary
investigation of Criminal Case Nos. 13406-13429 on March 3, 2004 by
requiring the petitioner to submit his counter-affidavit, the alleged offenses
subject therein have already prescribed. Indeed, the State has lost its right to REGALADO, J.:
prosecute petitioner for the offenses subject of Criminal Case Nos. 28031-
28049 pending before the Sandiganbayan and Criminal Case Nos. 04- Herein accused-appellant Martin Simon y Sunga was charged on November
231857–04-231860 pending before the Regional Trial Court of Manila. 10, 1988 with a violation of Section 4, Article II of Republic Act
No. 6425, as amended, otherwise known as the Dangerous Drugs Act of
WHEREFORE, premises considered, petitioner’s Motion for 1972, under an indictment alleging that on or about October 22, 1988, at
Reconsideration is GRANTED. Criminal Case Nos. 28031-28049 pending Barangay Sto. Cristo, Guagua, Pampanga, he sold four tea bags of marijuana
before the Sandiganbayan and Criminal Case Nos. 04-231857–04-231860 to a Narcotics Command (NARCOM) poseur-buyer in consideration of the
pending before the Regional Trial Court of Manila are all hereby ordered sum of P40.00, which tea bags, when subjected to laboratory examination,
DISMISSED. were found positive for marijuana.1
Eventually arraigned with the assistance of counsel on March 2, 1989, after
his rearrest following his escape from Camp Olivas, San Fernando,
Pampanga where he was temporarily detained,2 he pleaded not guilty. He
voluntarily waived his right to a pre-trial conference,3 after which trial on the
merits ensued and was duly concluded.
I confiscation of four tea bags of marijuana dried leaves in his possession.
The evidence on record shows that a confidential informant, later identified
as a NARCOM operative, informed the police unit at Camp Olivas, San
Fernando, Pampanga, of the illegal drug activities of a certain "Alyas Pusa"
at Sto. Cristo, Guagua, Pampanga. Capt. Francisco Bustamante,
Commanding Officer of the 3rd Narcotics Regional Unit in the camp, then
formed a buy-bust team composed of Sgt. Buenaventura Lopez, Pfc. Virgilio
Villaruz and
Sgt. Domingo Pejoro, all members of the same unit. After securing marked
money from Bustamante, the team, together with their informant, proceeded
to Sto. Cristo after they had coordinated with the police authorities and
barangay officers thereof. When they reached the place, the confidential
informer pointed out appellant to Lopez who consequently approached
appellant and asked him if he had marijuana. Appellant answered in the
affirmative and Lopez offered to buy two tea bags. Appellant then left and,
upon returning shortly thereafter, handed to Lopez two marijuana tea bags
and Lopez gave him the marked money amounting to P40.00 as payment.
Lopez then scratched his head as a
pre-arranged signal to his companions who were stationed around ten to
fifteen meters away, and the team closed in on them. Thereupon, Villaruz,
who was the head of the back-up team, arrested appellant. The latter was then
brought by the team to the 3rd Narcotics Regional Unit at Camp Olivas on
board a jeep and he was placed under custodial investigation, with Sgt.
Pejoro as the investigator.4
Pfc. Villaruz corroborated Lopez' testimony, claiming that he saw the deal
that transpired between Lopez and the appellant. He also averred that he was
the one who confiscated the marijuana and took the marked money from
appellant.5
Sgt. Domingo Pejoro, for his part, declared that although he was part of the
buy-bust team, he was stationed farthest from the rest of the other members,
that is, around two hundred meters away from his companions. He did not
actually see the sale that transpired between Lopez and appellant but he saw
his teammates accosting appellant after the latter's arrest. He was likewise the
one who conducted the custodial investigation of appellant wherein the latter
was apprised of his rights to remain silent, to information and to counsel.
Appellant, however, orally waived his right to counsel.6
Pejoro also claimed having prepared Exhibit "G", the "Receipt of Property
Seized/Confiscated" which appellant signed, admitting therein the
Pejoro likewise informed the court below that, originally, what he placed on
the receipt was that only one marijuana leaf was confiscated in exchange for
P20.00. However, Lopez and Villaruz corrected his entry by telling him to
put "two", instead of "one" and "40", instead of "20". He agreed to the
correction since they were the ones who were personally and directly
involved in the purchase of the marijuana and the arrest of appellant.7
Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at
5:30 p.m. of the day after the latter's apprehension, and the results were
practically normal except for his relatively high blood pressure. The doctor
also did not find any trace of physical injury on the person of appellant. The
next day, he again examined appellant due to the latter's complaint of
gastro-intestinal pain. In the course of the examination, Dr. Calara discovered
that appellant has a history of peptic ulcer, which causes him to experience
abdominal pain and consequently vomit blood. In the afternoon, appellant
came back with the same complaint but, except for the gastro-intestinal pain,
his physical condition remained normal.8
As expected, appellant tendered an antipodal version of the attendant facts,
claiming that on the day in question, at around 4:30 p.m., he was watching
television with the members of his family in their house when three persons,
whom he had never met before suddenly arrived. Relying on the assurance
that they would just inquire about something from him at their detachment,
appellant boarded a jeep with them. He was told that they were going to
Camp Olivas, but he later noticed that they were taking a different route.
While on board, he was told that he was a pusher so he attempted to alight
from the jeep but he was handcuffed instead. When they finally reached the
camp, he was ordered to sign some papers and, when he refused, he was
boxed in the stomach eight or nine times by Sgt. Pejoro. He was then
compelled to affix his signature and fingerprints on the documents presented
to him. He denied knowledge of the P20.00 or the dried marijuana leaves,
and insisted that the twenty-peso bill came from the pocket of Pejoro.
Moreover, the reason why he vomited blood was because of the blows he
suffered at the hands of Pejoro. He admitted having escaped from the
NARCOM office but claimed that he did so since he could no longer endure
the maltreatment to which he was being subjected. After escaping, he
proceeded to the house of his uncle, Bienvenido Sunga, at San Matias,
Guagua, reaching the place at around 6:30 or 7:30 p.m. There, he consulted a
quack doctor and, later, he was accompanied by his sister to the Romana
Pangan District Hospital at Floridablanca, Pampanga where he was confined
for three days.9
Appellant's brother, Norberto Simon, testified to the fact that appellant was
hospitalized at Floridablanca, Pampanga after undergoing abdominal pain
and vomiting of blood. He likewise confirmed that appellant had been
suffering from peptic ulcer even before the latter's arrest.10 Also, Dr. Evelyn
Gomez-Aguas, a resident physician of Romana Pangan District Hospital,
declared that she treated appellant for three days due to abdominal pain, but
her examination revealed that the cause for this ailment was appellant's
peptic ulcer. She did not see any sign of slight or serious external injury,
abrasion or contusion on his body.11
On December 4, 1989, after weighing the evidence presented, the trial court
rendered judgment convicting appellant for a violation of Section 4, Article
II of Republic Act No. 6425, as amended, and sentencing him to suffer the
penalty of life imprisonment, to pay a fine of twenty thousand pesos and to
pay the costs. The four tea bags of marijuana dried leaves were likewise
ordered confiscated in favor of the Government.12
Appellant now prays the Court to reverse the aforementioned judgment of the
lower court, contending in his assignment of errors that the latter erred in (1)
not upholding his defense of "frame-up", (2) not declaring Exhibit "G"
(Receipt of Property Seized/Confiscated) inadmissible in evidence, and (3)
convicting him of a violation of the Dangerous Drugs Act.13
At the outset, it should be noted that while the People's real theory and
evidence is to the effect the appellant actually sold only two tea bags of
marijuana dried leaves, while the other two tea bags were merely confiscated
subsequently from his possession,14 the latter not being in any way
connected with the sale, the information alleges that he sold and delivered
four tea bags of marijuana dried leaves.15 In view thereof, the issue
presented for resolution in this appeal is merely the act of selling the two tea
bags allegedly committed by appellant, and does not include the disparate
and distinct issue of illegal possession of the other two tea bags which
separate offense is not charged herein.16
To sustain a conviction for selling prohibited drugs, the sale must be clearly
and unmistakably established.17 To sell means to give, whether for money or
any other material consideration.18 It must, therefore, be established beyond
doubt that appellant actually sold and delivered two tea bags of marijuana
dried leaves to Sgt. Lopez, who acted as the poseur-buyer, in exchange for
two twenty-peso bills.
After an assiduous review and calibration of the evidence adduced by both
parties, we are morally certain that appellant was caught in flagrante delicto
engaging in the illegal sale of prohibited drugs. The prosecution was able to
prove beyond a scintilla of doubt that appellant, on October 22, 1988, did sell
two tea bags of marijuana dried leaves to Sgt. Lopez. The latter himself
creditably testified as to how the sale took place and his testimony was amply
corroborated by his teammates. As between the straightforward, positive and
corroborated testimony of Lopez and the bare denials and negative testimony
of appellant, the former undeniably deserves greater weight and is more
entitled to credence.
We are aware that the practice of entrapping drug traffickers through the
utilization of poseur-buyers is susceptible to mistake, harassment, extortion
and abuse.19 Nonetheless, such causes for judicial apprehension and doubt
do not obtain in the case at bar. Appellant's entrapment and arrest were not
effected in a haphazard way, for a surveillance was conducted by the team
before the
buy-bust operation was effected.20 No ill motive was or could be attributed
to them, aside from the fact that they are presumed to have regularly
performed their official duty.21 Such lack of dubious motive coupled with
the presumption of regularity in the performance of official duty, as well as
the findings of the trial court on the credibility of witnesses, should prevail
over the self-serving and uncorroborated claim of appellant of having been
framed,22 erected as it is upon the mere shifting sands of an alibi. To top it
all, appellant was caught
red-handed delivering prohibited drugs, and while there was a delimited
chance for him to controvert the charge, he does not appear to have plausibly
done so.
When the drug seized was submitted to the Crime Laboratory Service of the
then Philippine Constabulary-Integrated National Police (PC-INP) at Camp
Olivas for examination, P/Cpl. Marlyn Salangad, a forensic chemist
therein,23 confirmed in her Technical Report No. NB-448-88 that the
contents of the four tea bags confiscated from appellant were positive for and
had a total weight of 3.8 grams of marijuana.24 Thus, the corpus delicti of
the crime had been fully proved with certainty and conclusiveness.25
Appellant would want to make capital of the alleged inconsistencies and
improbabilities in the testimonies of the prosecution witnesses. Foremost,
according to him, is the matter of who really confiscated the marijuana tea
bags from him since, in open court, Pejoro asserted that he had nothing to do
with the confiscation of the marijuana, but in the aforementioned "Receipt of
Property Seized/Confiscated," he signed it as the one who seized the same.26
Suffice it to say that whether it was Villaruz or Pejoro who confiscated the
marijuana will not really matter since such is not an element of the offense
with which appellant is charged. What is unmistakably clear is that the
marijuana was confiscated from the possession of appellant. Even, assuming
arguendo that the prosecution committed an error on who actually seized the
marijuana from appellant, such an error or discrepancy refers only to a minor
matter and, as such, neither impairs the essential integrity of the prosecution
evidence as a whole nor reflects on the witnesses' honesty.27 Besides, there
was clearly a mere imprecision of language since Pejoro obviously meant
that he did not take part in the physical taking of the drug from the person of
appellant, but he participated in the legal seizure or confiscation thereof as
the investigator of their unit.
Next, appellant adduces the argument that the twenty-peso bills allegedly
confiscated from him were not powdered for finger-printing purposes
contrary to the normal procedure in buy-bust operations.28 This omission has
been satisfactorily explained by Pfc. Virgilio Villaruz in his testimony, as
follows:
Q: Is it the standard operating procedure of your unit that in conducting such
operation you do not anymore provide a powder (sic) on the object so as to
determine the thumbmark or identity of the persons taking hold of the object?
A: We were not able to put powder on these denominations because we are
lacking that kind of material in our office since that item can be purchased
only in Manila and only few are producing that, sir.
xxx xxx xxx
Q: Is it not a fact that your office is within (the) P.C. Crime Laboratory, CIS,
as well as the office of NICA?
A: Our office is only adjacent to those offices but we cannot make a request
for that powder because they, themselves, are using that in their own work,
sir.29
The foregoing explanation aside, we agree that the failure to mark the money
bills used for entrapment purposes can under no mode of rationalization be
fatal to the case of the prosecution because the Dangerous Drugs Act
punishes "any person who, unless authorized by law, shall sell, administer,
deliver, give away to another, distribute, dispatch in transit or transport any
prohibited drug, or shall act as a broker in any of such transactions."30 The
dusting of said bills with phosphorescent powder is only an evidentiary
technique for identification purposes, which identification can be supplied by
other species of evidence.
Again, appellant contends that there was neither a relative of his nor any
barangay official or civilian to witness the seizure. He decries the lack of
pictures taken before, during and after his arrest. Moreover, he was not
reported to or booked in the custody of any barangay official or police
authorities.31 These are absurd disputations. No law or jurisprudence
requires that an arrest or seizure, to be valid, be witnessed by a relative, a
barangay official or any other civilian, or be accompanied by the taking of
pictures. On the contrary, the police enforcers having caught appellant in
flagrante delicto, they were not only authorized but were also under the
obligation to effect a warrantless arrest and seizure.
Likewise, contrary to appellant's contention, there was an arrest report
prepared by the police in connection with his apprehension. Said Booking
Sheet and Arrest Report32 states, inter alia, that "suspect was arrested for
selling two tea bags of suspected marijuana dried leaves and the confiscation
of another two tea bags of suspected marijuana dried leaves." Below these
remarks was affixed appellant's signature. In the same manner, the receipt for
the seized property, hereinbefore mentioned, was signed by appellant
wherein he acknowledged the confiscation of the marked bills from him.33
However, we find and hereby declare the aforementioned exhibits
inadmissible in evidence. Appellant's conformance to these documents are
declarations against interest and tacit admissions of the crime charged. They
were obtained in violation of his right as a person under custodial
investigation for the commission of an offense, there being nothing in the
records to show that he was assisted by counsel.34 Although appellant
manifested during the custodial investigation that he waived his right to
counsel, the waiver was not made in writing and in the presence of
counsel,35 hence whatever incriminatory admission or confession may be
extracted from him, either verbally or in writing, is not allowable in
evidence.36 Besides, the arrest report is self-serving and hearsay and can
easily be concocted to implicate a suspect.
Notwithstanding the objectionability of the aforesaid exhibits, appellant
cannot thereby be extricated from his predicament since his criminal
participation in the illegal sale of marijuana has been sufficiently proven. The
commission of the offense of illegal sale of prohibited drugs requires merely
the consummation of the selling transaction37 which happens the moment
the buyer receives the drug from the seller.38 In the present case, and in light
of the preceding discussion, this sale has been ascertained beyond any
peradventure of doubt.
Appellant then asseverates that it is improbable that he would sell marijuana
to a total stranger.39 We take this opportunity to once again reiterate the
doctrinal rule that drug-pushing, when done on a small scale as in this case,
belongs to that class of crimes that may be committed at any time and in any
place.40 It is not contrary to human experience for a drug pusher to sell to a
total stranger,41 for what matters is not an existing familiarity between the
buyer and seller but their agreement and the acts constituting the sale and
delivery of the marijuana leaves.42 While there may be instances where such
sale could be improbable, taking into consideration the diverse circumstances
of person, time and place, as well as the incredibility of how the accused
supposedly acted on that occasion, we can safely say that those exceptional
particulars are not present in this case.
Finally, appellant contends that he was subjected to physical and mental
torture by the arresting officers which caused him to escape from Camp
Olivas the night he was placed under custody.43 This he asserts to support
his explanation as to how his signatures on the documents earlier discussed
were supposedly obtained by force and coercion.
The doctrine is now too well embedded in our jurisprudence that for
evidence to be believed, it must not only proceed from the mouth of a
credible witness but must be credible in itself such as the common
experience and observation of mankind can approve as probable under the
circumstances.44 The evidence on record is bereft of any support for
appellant's allegation of maltreatment. Two doctors, one for the
prosecution45 and the other for the defense,46 testified on the absence of any
tell-tale sign or indication of bodily injury, abrasions or contusions on the
person of appellant. What is evident is that the cause of his abdominal pain
was his peptic ulcer from which he had been suffering even before his
arrest.47 His own brother even corroborated that fact, saying that appellant
has had a history of bleeding peptic ulcer.48
Furthermore, if it is true that appellant was maltreated at Camp Olivas, he
had no reason whatsoever for not divulging the same to his brother who went
to see him at the camp after his arrest and during his detention there.49
Significantly, he also did not even report the matter to the authorities nor file
appropriate charges against the alleged malefactors despite the opportunity to
do so50 and with the legal services of counsel being available to him. Such
omissions funnel down to the conclusion that appellant's story is a pure
fabrication.
These, and the events earlier discussed, soundly refute his allegations that his
arrest was baseless and premeditated for the NARCOM agents were
determined to arrest him at all costs.51 Premeditated or not, appellant's arrest
was only the culmination, the final act needed for his isolation from society
and it was providential that it came about after he was caught in the very act
of illicit trade of prohibited drugs. Accordingly, this opinion could have
concluded on a note of affirmance of the judgment of the trial court.
However, Republic Act No. 6425, as amended, was further amended by
Republic Act No. 7659 effective December 31, 1993,52 which supervenience
necessarily affects the original disposition of this case and entails additional
questions of law which we shall now resolve.
II
The provisions of the aforesaid amendatory law, pertinent to the adjudication
of the case at bar, are to this effect:
Sec. 13. Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act
No. 6425, as amended, known as the Dangerous Drugs Act
of 1972, are hereby amended to read as follows:
xxx xxx xxx
Sec. 4. Sale, Administration, Delivery,
Distribution and Transportation of
Prohibited Drugs. — The penalty of
reclusion perpetua to death and a fine
ranging from five hundred thousand pesos to
 ten million pesos shall be imposed upon any
person who, unless authorized by law, shall
sell, administer, deliver, give away to
another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as
a broker in any of such transactions.
xxx xxx xxx
Sec. 17. Section 20, Article IV of Republic Act No. 6425, as
amended, known as the Dangerous Drugs Act of 1972, is
hereby amended to read as follows:
Sec. 20. Application of Penalties,
Confiscation and Forfeiture of the Proceeds
or Instrument of the Crime. — The penalties
for offenses under Sections 3, 4, 7, 8 and 9
of Article II and Sections 14, 14-A, 15 and
16 of Article III of this Act shall be applied
if the dangerous drugs involved is in any of
the following quantities:
xxx xxx xxx
5. 750 grams or more of indian
hemp or marijuana
xxx xxx xxx
Otherwise, if the quantity involved is less
than the foregoing quantities, the penalty
shall range from prision correccional to
reclusion perpetua depending upon the
quantity.
1. Considering that herein appellant is being prosecuted for the sale of four
tea bags of marijuana with a total weight of only 3.8 grams and, in fact,
stands to be convicted for the sale of only two of those tea bags, the initial
inquiry would be whether the patently favorable provisions of Republic Act
No. 7659 should be given retroactive effect to entitle him to the lesser
penalty provided thereunder, pursuant to Article 22 of the Revised Penal
Code.
Although Republic Act No. 6425 was enacted as a special law, albeit
originally amendatory and in substitution of the previous Articles 190 to 194
of the Revised Penal Code,53 it has long been settled that by force of Article
10 of said Code the beneficient provisions of Article 22 thereof applies to
and shall be given retrospective effect to crimes punished by special laws.54
The execution in said article would not apply to those convicted of drug
offenses since habitual delinquency refers to convictions for the third time or
more of the crimes of serious or less serious physical injuries, robo, hurto,
estafa or falsification.55
Since, obviously, the favorable provisions of Republic Act No. 7659 could
neither have then been involved nor invoked in the present case, a corollary
question would be whether this court, at the present stage, can
sua sponte apply the provisions of said Article 22 to reduce the penalty to be
imposed on appellant. That issue has likewise been resolved in the cited case
of People vs. Moran, et al., ante., thus:
. . . . The plain precept contained in article 22 of the Penal
Code, declaring the retroactivity of penal laws in so far as
they are favorable to persons accused of a felony, would be
useless and nugatory if the courts of justice were not under
obligation to fulfill such duty, irrespective of whether or not
the accused has applied for it, just as would also all
provisions relating to the prescription of the crime and the
penalty.
If the judgment which could be affected and modified by the reduced
penalties provided in Republic Act No. 7659 has already become final and
executory or the accused is serving sentence thereunder, then practice,
procedure and pragmatic considerations would warrant and necessitate the
matter being brought to the judicial authorities for relief under a writ of
habeas corpus.56
2. Probably through oversight, an error on the matter of imposable penalties
appears to have been committed in the drafting of the aforesaid law; thereby
calling for and necessitating judicial reconciliation and craftsmanship.
As applied to the present case, Section 4 of Republic Act No. 6425, as now
further amended, imposes the penalty of reclusion perpetua to death and a
fine ranging from P500,000.00 to P10,000,000.00 upon any person who shall
unlawfully sell, administer, deliver, give away, distribute, dispatch in transit
or transport any prohibited drug. That penalty, according to the amendment
to Section 20 of the law, shall be applied if what is involved is 750 grams or
more of indian hemp or marijuana; otherwise, if the quantity involved is less,
the penalty shall range from prision correccional to reclusion perpetua
depending upon the quantity.
In other words, there is here an overlapping error in the provisions on the
penalty of reclusion perpetua by reason of its dual imposition, that is, as the
maximum of the penalty where the marijuana is less than 750 grams, and
also as the minimum of the penalty where the marijuana involved is 750
grams or more. The same error has been committed with respect to the other
prohibited and regulated drugs provided in said Section 20. To harmonize
such conflicting provisions in order to give effect to the whole law,57 we
hereby hold that the penalty to be imposed where the quantity of the drugs
involved is less than the quantities stated in the first paragraph shall range
from prision correccional to reclusion temporal, and not reclusion perpetua.
This is also concordant with the fundamental rule in criminal law that all
doubts should be construed in a manner favorable to the accused.
3. Where, as in this case, the quantity of the dangerous drug is only 3.8
grams, hence covered by the imposable range of penalties under the second
paragraph of Section 20, as now modified, the law provides that the penalty
shall be taken from said range "depending upon the quantity" of the drug
involved in the case. The penalty in said second paragraph constitutes a
complex one composed of three distinct penalties, that is, prision
correccional, prision mayor, and reclusion temporal. In such a situation, the
Code provides that each one shall form a period, with the lightest of them
being the minimum, the next as the medium, and the most severe as the
maximum period.58
Ordinarily, and pursuant to Article 64 of the Code, the mitigating and
aggravating circumstances determine which period of such complex penalty
shall be imposed on the accused. The peculiarity of the second paragraph of
Section 20, however, is its specific mandate, above quoted, that the penalty
shall instead depend upon the quantity of the drug subject of the criminal
transaction.59 Accordingly, by way of exception to Article 77 of the Code
and to subserve the purpose of Section 20 of Republic Act No. 7659, each of
the aforesaid component penalties shall be considered as a principal
imposable penalty depending on the quantity of the drug involved. Thereby,
the modifying circumstances will not altogether be disregarded. Since each
component penalty of the total complex penalty will have to be imposed
separately as determined by the quantity of the drug involved, then the
modifying circumstances can be used to fix the proper period of that
component penalty, as shall hereafter be explained.
It would, therefore, be in line with the provisions of Section 20 in the context
of our aforesaid disposition thereon that, unless there are compelling reasons
for a deviation, the quantities of the drugs enumerated in its second
paragraph be divided into three, with the resulting quotient, and double or
treble the same, to be respectively the bases for allocating the penalty
proportionately among the three aforesaid periods according to the severity
thereof. Thus, if the marijuana involved is below 250 grams, the penalty to
be imposed shall be prision correccional; from 250 to 499 grams, prision
mayor; and 500 to
749 grams, reclusion temporal. Parenthetically, fine is imposed as a
conjunctive penalty only if the penalty is reclusion perpetua to death.60
Now, considering the minimal quantity of the marijuana subject of the case at
bar, the penalty of prision correccional is consequently indicated but, again,
another preliminary and cognate issue has first to be resolved.
4. Prision correccional has a duration of 6 months and 1 day to 6 years and,
as a divisible penalty, it consists of three periods as provided in the text of
and illustrated in the table provided by Article 76 of the Code. The question
is whether or not in determining the penalty to be imposed, which is here to
be taken from the penalty of prision correccional, the presence or absence of
mitigating, aggravating or other circumstances modifying criminal liability
should be taken into account.
We are not unaware of cases in the past wherein it was held that, in imposing
the penalty for offenses under special laws, the rules on mitigating or
aggravating circumstances under the Revised Penal Code cannot and should
not be applied. A review of such doctrines as applied in said cases, however,
reveals that the reason therefor was because the special laws involved
provided their own specific penalties for the offenses punished thereunder,
and which penalties were not taken from or with reference to those in the
Revised Penal Code. Since the penalties then provided by the special laws
concerned did not provide for the minimum, medium or maximum periods, it
would consequently be impossible to consider the aforestated modifying
circumstances whose main function is to determine the period of the penalty
in accordance with the rules in Article 64 of the Code.
This is also the rationale for the holding in previous cases that the provisions
of the Code on the graduation of penalties by degrees could not be given
supplementary application to special laws, since the penalties in the latter
were not components of or contemplated in the scale of penalties provided by
Article 71 of the former. The suppletory effect of the Revised Penal Code to
special laws, as provided in Article 10 of the former, cannot be invoked
where there is a legal or physical impossibility of, or a prohibition in the
special law against, such supplementary application.
The situation, however, is different where although the offense is defined in
and ostensibly punished under a special law, the penalty therefor is actually
taken from the Revised Penal Code in its technical nomenclature and,
necessarily, with its duration, correlation and legal effects under the system
of penalties native to said Code. When, as in this case, the law involved
speaks of prision correccional, in its technical sense under the Code, it
would consequently be both illogical and absurd to posit otherwise. More on
this later.
For the nonce, we hold that in the instant case the imposable penalty under
Republic Act No. 6425, as amended by Republic Act No. 7659, is prision
correccional, to be taken from the medium period thereof pursuant to Article
64 of the Revised Penal Code, there being no attendant mitigating or
aggravating circumstance.
5. At this juncture, a clarificatory discussion of the developmental changes in
the penalties imposed for offenses under special laws would be necessary.
Originally, those special laws, just as was the conventional practice in the
United States but differently from the penalties provided in our Revised
Penal Code and its Spanish origins, provided for one specific penalty or a
range of penalties with definitive durations, such as imprisonment for one
year or for one to five years but without division into periods or any technical
statutory cognomen. This is the special law contemplated in and referred to at
the time laws like the Indeterminate Sentence Law61 were passed during the
American regime.
Subsequently, a different pattern emerged whereby a special law would
direct that an offense thereunder shall be punished under the Revised Penal
Code and in the same manner provided therein. Inceptively, for instance,
Commonwealth Act No. 30362 penalizing non-payment of salaries and
wages with the periodicity prescribed therein, provided:
Sec. 4. Failure of the employer to pay his employee or
laborer as required by section one of this Act, shall prima
facie be considered a fraud committed by such employer
against his employee or laborer by means of false pretenses
similar to those mentioned in article three hundred and
fifteen, paragraph four, sub-paragraph two (a) of the Revised
Penal Code and shall be punished in the same manner as
therein provided.63
Thereafter, special laws were enacted where the offenses defined therein
were specifically punished by the penalties as technically named and
understood in the Revised Penal Code. These are exemplified by Republic
Act No. 1700 (Anti-Subversion Act) where the penalties ranged from arresto
mayor to
death;64 Presidential Decree No. 1612 (Anti-Fencing Decree) where the
penalties run from arresto mayor to prision mayor; and Presidential Decree
No. 1866 (illegal possession and other prohibited acts involving firearms),
the penalties wherefor may involve prision mayor, reclusion temporal,
reclusion perpetua or death.
Another variant worth mentioning is Republic Act No. 6539
(Anti-Carnapping Act of 1972) where the penalty is imprisonment for not
less than 14 years and 8 months and not more than 17 years and 4 months,
when committed without violence or intimidation of persons or force upon
things; not less than 17 years and 4 months and not more than 30 years, when
committed with violence against or intimidation of any person, or force upon
things; and life imprisonment to death, when the owner, driver or occupant of
the carnapped vehicle is killed.
With respect to the first example, where the penalties under the special law
are different from and are without reference or relation to those under the
Revised Penal Code, there can be no suppletory effect of the rules for the
application of penalties under said Code or by other relevant statutory
provisions based on or applicable only to said rules for felonies under the
Code. In this type of special law, the legislative intendment is clear.
The same exclusionary rule would apply to the last given example, Republic
Act No. 6539. While it is true that the penalty of 14 years and
8 months to 17 years and 4 months is virtually equivalent to the duration of
the medium period of reclusion temporal, such technical term under the
Revised Penal Code is not given to that penalty for carnapping. Besides, the
other penalties for carnapping attended by the qualifying circumstances
stated in the law do not correspond to those in the Code. The rules on
penalties in the Code, therefore, cannot suppletorily apply to Republic Act
No. 6539 and special laws of the same formulation.
On the other hand, the rules for the application of penalties and the
correlative effects thereof under the Revised Penal Code, as well as other
statutory enactments founded upon and applicable to such provisions of the
Code, have suppletory effect to the penalties under the former Republic Act
No. 1700 and those now provided under Presidential Decrees Nos. 1612 and
1866. While these are special laws, the fact that the penalties for offenses
thereunder are those provided for in the Revised Penal code lucidly reveals
the statutory intent to give the related provisions on penalties for felonies
under the Code the corresponding application to said special laws, in the
absence of any express or implicit proscription in these special laws. To hold
otherwise would be to sanction an indefensible judicial truncation of an
integrated system of penalties under the Code and its allied legislation, which
could never have been the intendment of Congress.
In People vs. Macatanda,65 a prosecution under a special law (Presidential
Decree No. 533, otherwise known as the Anti-Cattle Rustling Law of 1974),
it was contended by the prosecution that Article 64, paragraph 5, of the
Revised Penal Code should not apply to said special law. We said therein
that —
We do not agree with the Solicitor General that P.D. 533 is a
special law entirely distinct from and unrelated to the
Revised Penal Code. From the nature of the penalty imposed
which is in terms of the classification and duration of
penalties as prescribed in the Revised Penal Code, which is
not for penalties as are ordinarily imposed in special laws,
the intent seems clear that P.D. 533 shall be deemed as an
amendment of the Revised Penal Code, with respect to the
offense of theft of large cattle (Art. 310) or otherwise to be
subject to applicable provisions thereof such as Article 104
of the Revised Penal Code . . . . Article 64 of the same Code
should, likewise, be applicable, . . . . (Emphasis supplied.)
More particularly with regard to the suppletory effect of the rules on
penalties in the Revised Penal Code to Republic Act No. 6425, in this case
involving Article 63(2) of the Code, we have this more recent
pronouncement:
. . . Pointing out that as provided in Article 10 the provisions
of the Revised Penal Code shall be "supplementary" to
special laws, this Court held that where the special law
expressly grants to the court discretion in applying the
penalty prescribed for the offense, there is no room for the
application of the provisions of the Code . . . .
The Dangerous Drugs Act of 1972, as amended by P.D. No.
1623, contains no explicit grant of discretion to the Court in
the application of the penalty prescribed by the law. In such
case, the court must be guided by the rules prescribed by the
Revised Penal Code concerning the application of penalties
which distill the "deep legal thought and centuries of
experience in the administration of criminal laws."
(Emphasis ours.)66
Under the aforestated considerations, in the case of the Dangerous Drugs Act
as now amended by Republic Act No. 7659 by the incorporation and
prescription therein of the technical penalties defined in and constituting
integral parts of the three scales of penalties in the Code, 67 with much more
reason should the provisions of said Code on the appreciation and effects of
all attendant modifying circumstances apply in fixing the penalty. Likewise,
the different kinds or classifications of penalties and the rules for graduating
such penalties by degrees should have supplementary effect on Republic Act
No. 6425, except if they would result in absurdities as will now be explained.
While not squarely in issue in this case, but because this aspect is involved in
the discussion on the role of modifying circumstances, we have perforce to
lay down the caveat that mitigating circumstances should be considered and
applied only if they affect the periods and the degrees of the penalties within
rational limits.
Prefatorily, what ordinarily are involved in the graduation and consequently
determine the degree of the penalty, in accordance with the rules in Article
61 of the Code as applied to the scale of penalties in Article 71, are the stage
of execution of the crime and the nature of the participation of the accused.
However, under paragraph 5 of Article 64, when there are two or more
ordinary mitigating circumstances and no aggravating circumstance, the
penalty shall be reduced by one degree. Also, the presence of privileged
mitigating circumstances, as provided in Articles 67 and 68, can reduce the
penalty by one or two degrees, or even more. These provisions of Articles
64(5), 67 and 68 should not apply in toto in the determination of the proper
penalty under the aforestated second paragraph of section 20 of Republic Act
No. 6425, to avoid anomalous results which could not have been
contemplated by the legislature.
Thus, paragraph 5 of Article 61 provides that when the law prescribes a
penalty in some manner not specially provided for in the four preceding
paragraphs thereof, the courts shall proceed by analogy therewith. Hence,
when the penalty prescribed for the crime consists of one or two penalties to
be imposed in their full extent, the penalty next lower in degree shall
likewise consist of as many penalties which follow the former in the scale in
Article 71. If this rule were to be applied, and since the complex penalty in
this
case consists of three discrete penalties in their full extent, that is,
prision correccional, prision mayor and reclusion temporal, then one degree
lower would be arresto menor, destierro and arresto mayor. There could,
however, be no further reduction by still one or two degrees, which must
each likewise consist of three penalties, since only the penalties of fine and
public censure remain in the scale.
The Court rules, therefore, that while modifying circumstances may be
appreciated to determine the periods of the corresponding penalties, or even
reduce the penalty by degrees, in no case should such graduation of penalties
reduce the imposable penalty beyond or lower than prision correccional. It is
for this reason that the three component penalties in the second paragraph of
Section 20 shall each be considered as an independent principal penalty, and
that the lowest penalty should in any event be prision correccional in order
not to depreciate the seriousness of drug offenses. Interpretatio fienda est ut
res magis valeat quam pereat. Such interpretation is to be adopted so that the
law may continue to have efficacy rather than fail. A perfect judicial solution
cannot be forged from an imperfect law, which impasse should now be the
concern of and is accordingly addressed to Congress.
6. The final query is whether or not the Indeterminate Sentence Law is
applicable to the case now before us. Apparently it does, since drug offenses
are not included in nor has appellant committed any act which would put him
within the exceptions to said law and the penalty to be imposed does not
involve reclusion perpetua or death, provided, of course, that the penalty as
ultimately resolved will exceed one year of imprisonment.68 The more
important aspect, however, is how the indeterminate sentence shall be
ascertained.
It is true that Section 1 of said law, after providing for indeterminate sentence
for an offense under the Revised Penal Code, states that "if the offense is
punished by any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the
minimum term prescribed by the same." We hold that this quoted portion of
the section indubitably refers to an offense under a special law wherein the
penalty imposed was not taken from and is without reference to the Revised
Penal Code, as discussed in the preceding illustrations, such that it may be
said that the "offense is punished" under that law.
There can be no sensible debate that the aforequoted rule on indeterminate
sentence for offenses under special laws was necessary because of the nature
of the former type of penalties under said laws which were not included or
contemplated in the scale of penalties in Article 71 of the Code, hence there
could be no minimum "within the range of the penalty next lower to that
prescribed by the Code for the offense," as is the rule for felonies therein. In
the illustrative examples of penalties in special laws hereinbefore provided,
this rule applied, and would still apply, only to the first and last examples.
Furthermore, considering the vintage of Act No. 4103 as earlier noted, this
holding is but an application and is justified under the rule of contemporanea
expositio.69
We repeat, Republic Act No. 6425, as now amended by Republic Act No.
7659, has unqualifiedly adopted the penalties under the Revised Penal Code
in their technical terms, hence with their technical signification and effects.
In fact, for purposes of determining the maximum of said sentence, we
have applied the provisions of the amended Section 20 of said law to arrive
at prision correccional and Article 64 of the Code to impose the same in the
medium period. Such offense, although provided for in a special law, is now
in effect punished by and under the Revised Penal Code. Correlatively, to
determine the minimum, we must apply the first part of the aforesaid Section
1 which directs that "in imposing a prison sentence for an offense punished
by the Revised Penal Code, or its amendments, the court shall sentence the
accused to an indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be properly
imposed under the rules of said Code, and the minimum which shall be
within the range of the penalty next lower to that prescribed by the Code for
the offense." (Emphasis ours.) A divergent pedantic application would not
only be out of context but also an admission of the hornbook maxim that qui
haeret in litera haeret in cortice. Fortunately, this Court has never gone only
skin-deep in its construction of Act. No. 4103 by a mere literal appreciation
of its provisions. Thus, with regard to the phrase in Section 2 thereof
excepting from its coverage "persons convicted of offenses punished with
death penalty or life imprisonment," we have held that what is considered is
the penalty actually imposed and not the penalty imposable under the law,70
and that reclusion perpetua is likewise embraced therein although what the
law states is "life imprisonment".
ACCORDINGLY, under all the foregoing premises, the judgment of
conviction rendered by the court a quo against accused-appellant Martin
Simon y Sunga is AFFIRMED, but with the MODIFICATION that he should
be, as he hereby is, sentenced to serve an indeterminate penalty of six (6)
months of arresto mayor, as the minimum, to six (6) years of prision
correccional, as the maximum thereof.

What irresistibly emerges from the preceding disquisition, therefore, is that

under the concurrence of the principles of literal interpretation, which have
been rationalized by comparative decisions of this Court; of historical
interpretation, as explicated by the antecedents of the law and related
contemporaneous legislation; and of structural interpretation, considering the
interrelation of the penalties in the Code as supplemented by Act No. 4103 in
an integrated scheme of penalties, it follows that the minimum of the
indeterminate sentence in this case shall be the penalty next lower to that
prescribed for the offense. Thereby we shall have interpreted the seeming
ambiguity in Section 1 of Act No. 4103 in such a way as to harmonize laws
with laws, which is the best mode of interpretation.71

The indeterminate Sentence Law is a legal and social measure of

compassion, and should be liberally interpreted in favor of the accused.72
The "minimum" sentence is merely a period at which, and not before, as a
matter of grace and not of right, the prisoner may merely be allowed to serve
the balance of his sentence outside of his confinement.73 It does not
constitute the totality of the penalty since thereafter he still has to continue
serving the rest of his sentence under set conditions. That minimum is only
the period when the convict's eligibility for parole may be considered. In fact,
his release on parole may readily be denied if he is found unworthy thereof,
or his reincarceration may be ordered on legal grounds, even if he has served
the minimum sentence.

It is thus both amusing and bemusing if, in the case at bar, appellant should
be begrudged the benefit of a minimum sentence within the range of arresto
mayor, the penalty next lower to prision correccional which is the maximum
range we have fixed through the application of Articles 61 and 71 of the
Revised Penal Code. For, with fealty to the law, the court may set the
minimum sentence at 6 months of arresto mayor, instead of 6 months and 1
day of prision correccional. The difference, which could thereby even
involve only one day, is hardly worth the creation of an overrated tempest in
the judicial teapot.
G.R. No. 157171 March 14, 2006
ARSENIA B. GARCIA, Petitioner,
vs.
HON. COURT OF APPEALS and the PEOPLE OF THE
PHILIPPINES, Respondents
DECISION
QUISUMBING, J.:
This petition seeks the review of the judgment of the Court of Appeals in
CA-G.R. CR No. 245471that affirmed the conviction of petitioner by the
Regional Trial Court2of Alaminos City, Pangasinan, Branch 54, for violation
of Section 27(b) of Republic Act No. 6646.3
Based on the complaint-affidavit of Aquilino Q. Pimentel, Jr., who ran in the
1995 senatorial elections, an information dated March 30, 1998, was filed in
the Regional Trial Court of Alaminos, charging Herminio R. Romero, Renato
R. Viray, Rachel Palisoc and Francisca de Vera, and petitioner, with
violation of Section 27(b). The information reads:
That on or about May 11, 1995, which was within the canvassing period
during the May 8, 1995 elections, in the Municipality of Alaminos, Province
of Pangasinan, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, Election Officer Arsenia B. Garcia,
Municipal Treasurer Herminio R. Romero, Public School District Supervisor
Renato R. Viray, Chairman, Vice-Chairman, and Member-Secretary,
respectively, of the Municipal Board of Canvassers of Alaminos, Pangasinan,
tabulators Rachel Palisoc and Francisca de Vera, conspiring with,
confederating together and mutually helping each other, did, then and there,
willfully, and unlawfully decrease[d] the votes received by senatorial
candidate Aquilino Q. Pimentel, Jr. from six thousand nine hundred ninety-
eight (6,998) votes, as clearly disclosed in the total number of votes in the
one hundred fifty-nine (159) precincts of the Statement of Votes by Precincts
of said municipality, with Serial Nos. 008417, 008418, 008419, 008420,
008421, 008422 and 008423 to one thousand nine hundred twenty-one
(1,921) votes as reflected in the Statement of Votes by Precincts with Serial
No. 008423 and Certificate of Canvass with Serial No. 436156 with a
difference of five thousand seventy-seven (5,077) votes.
CONTRARY TO LAW.4
In a Decision dated September 11, 2000, the RTC acquitted all the accused
for insufficiency of evidence, except petitioner who was convicted as
follows:
xxx
5. And finally, on the person of Arsenia B. Garcia, the Court pronounces her
GUILTY beyond reasonable doubt, of the crime defined under Republic Act
6646, Section 27 (b) for decreasing the votes of Senator Pimentel in the total
of 5,034 and in relation to BP Blg. 881, considering that this finding is a
violation of Election Offense, she is thus sentenced to suffer an
imprisonment of SIX (6) YEARS as maximum, but applying the
INDETERMINATE SENTENCE LAW, the minimum penalty is the next
degree lower which is SIX (6) MONTHS; however, accused Arsenia B.
Garcia is not entitled to probation; further, she is sentenced to suffer
disqualification to hold public office and she is also deprived of her right of
suffrage.
The bailbond posted by her is hereby ordered cancelled, and the Provincial
Warden is ordered to commit her person to the Bureau of Correctional
Institution for Women, at Metro Manila, until further orders from the court.
No pronouncement as to costs.
IT IS SO ORDERED.5
Petitioner appealed before the Court of Appeals which affirmed with
modification the RTC Decision, thus,
WHEREFORE, foregoing considered, the appealed decision is hereby
affirmed with modification, increasing the minimum penalty imposed by the
trial court from six (6) months to one (1) year.
SO ORDERED.6
The Court of Appeals likewise denied the motion for reconsideration. Hence,
this appeal assigning the following as errors of the appellate court:
I
ON THE FIRST AND SECOND GROUNDS RELIED UPON BY THE
RESPONDENT COURT, NAMELY, THAT IT COULD NOT HAVE
BEEN SECRETARY VIRAY WHO DECREASED THE VOTES OF
COMPLAINANT PIMENTEL SINCE HE MERELY RELIED ON WHAT
THE PETITIONER DICTATED, AND THAT IT COULD NOT HAVE
ALSO BEEN THE TABULATORS BECAUSE PETITIONER WAS THE
ONE WHO READ THE ADDING [MACHINE] TAPE.
II
ON THE THIRD GROUND, NAMELY, THAT PETITIONER DID NOT
PRODUCE THE TAPES DURING THE TRIAL BECAUSE IF
PRODUCED, IT IS GOING TO BE ADVERSE TO HER.
III
ON THE FOURTH GROUND, NAMELY, THAT THE PETITIONER WAS
THE ONE WHO ENTERED THE REDUCED FIGURE OF 1,921 IN THE
CERTIFICATE OF CANVASS (COC), Exh. "7", WHEN THE DUTY WAS
THAT OF THE SECRETARY OF THE BOARD.
IV
THE REDUCTION OF THE VOTES OF CANDIDATE PIMENTEL WAS
CLEARLY NOT WILLFUL OR INTENTIONAL.7
Petitioner contends that (1) the Court of Appeals’ judgment is erroneous,
based on speculations, surmises and conjectures, instead of substantial
evidence; and (2) there was no motive on her part to reduce the votes of
private complainant.
Respondent on the other hand contends that good faith is not a defense in the
violation of an election law, which falls under the class of mala prohibita.
The main issue is, Is a violation of Section 27(b) of Rep. Act No. 6646,
classified under mala in se or mala prohibita? Could good faith and lack of
criminal intent be valid defenses?
Generally, mala in se felonies are defined and penalized in the Revised Penal
Code. When the acts complained of are inherently immoral, they are deemed
mala in se, even if they are punished by a special law.8Accordingly, criminal
intent must be clearly established with the other elements of the crime;
otherwise, no crime is committed. On the other hand, in crimes that are mala
prohibita, the criminal acts are not inherently immoral but become
punishable only because the law says they are forbidden. With these crimes,
the sole issue is whether the law has been violated.9Criminal intent is not
necessary where the acts are prohibited for reasons of public policy.10
Section 27(b) of Republic Act No. 664611provides:
SEC. 27. Election Offenses.- In addition to the prohibited acts and election
offenses enumerated in Sections 261 and 262 of Batas Pambansa Blg. 881, as
amended, the following shall be guilty of an election offense:
xxx
(b) Any member of the board of election inspectors or board of canvassers
who tampers, increases, or decreases the votes received by a candidate in any
election or any member of the board who refuses, after proper verification
and hearing, to credit the correct votes or deduct such tampered votes.
xxx
Clearly, the acts prohibited in Section 27(b) are mala in se.12For otherwise,
even errors and mistakes committed due to overwork and fatigue would be
punishable. Given the volume of votes to be counted and canvassed within a
limited amount of time, errors and miscalculations are bound to happen. And
it could not be the intent of the law to punish unintentional election canvass
errors. However, intentionally increasing or decreasing the number of votes
received by a candidate is inherently immoral, since it is done with malice
and intent to injure another.
Criminal intent is presumed to exist on the part of the person who executes
an act which the law punishes, unless the contrary shall appear.13Thus,
whoever invokes good faith as a defense has the burden of proving its
existence.
Records show that the canvassing of votes on May 11, 1995 before the Board
of Canvassers of the Municipality of Alaminos, Pangasinan was conducted as
follows:
 1. After the votes in the 159 precincts of the municipality of
Alaminos were tallied, the results thereof were sealed and forwarded
to the Municipal Board of Canvassers for canvassing;
2. The number of votes received by each candidate in each precinct
was then recorded in the Statement of Votes with appellant, in her
capacity as Chairman, reading the figures appearing in the results
from the precincts and accused Viray, in his capacity as secretary of
the Board, entering the number in the Statements of Votes as read by
the appellant. Six Statements of Votes were filled up to reflect the
votes received by each candidate in the 159 precincts of the
Municipality of Alaminos, Pangasinan.
3. After the number of votes received by each candidate for each
precincts were entered by accused Viray in the Statements of Votes,
these votes were added by the accused Palisoc and de Vera with the
use of electrical adding machines.
4. After the tabulation by accused Palisoc and de Vera, the
corresponding machine tapes were handed to appellant who reads the
subtotal of votes received by each candidate in the precincts listed in
each Statement of Votes. Accused Viray [then] records the subtotal
in the proper column in the Statement of Votes.
5. After the subtotals had been entered by accused Viray, tabulators
accused Palisoc and de Vera added all the subtotals appearing in all
Statement of Votes.
6. After the computation, the corresponding machine tape on which
the grand total was reflected was handed to appellant who reads the
same and accused Viray enters the figure read by appellant in the
column for grand total in the Statement of Votes.14
Neither the correctness of the number of votes entered in the Statement of
Votes (SOV) for each precinct, nor of the number of votes entered as
subtotals of votes received in the precincts listed in SOV Nos. 008417 to
008422 was raised as an issue.
At first glance, however, there is a noticeable discrepancy in the addition of
the subtotals to arrive at the grand total of votes received by each candidate
for all 159 precincts in SOV No. 008423.15The grand total of the votes for
private complainant, Senator Aquilino Pimentel, was only 1,921 instead of
6,921, or 5,000 votes less than the number of votes private complainant
actually received. This error is also evident in the Certificate of Canvass
(COC) No. 436156 signed by petitioner, Viray and Romero.16
During trial of this case, petitioner admitted that she was indeed the one who
announced the figure of 1,921, which was subsequently entered by then
accused Viray in his capacity as secretary of the board.17Petitioner likewise
admitted that she was the one who prepared the COC (Exhibit A-7), though it
was not her duty. To our mind, preparing the COC even if it was not her task,
manifests an intention to perpetuate the erroneous entry in the COC.18
Neither can this Court accept petitioner’s explanation that the Board of
Canvassers had no idea how the SOV (Exhibit "6") and the COC reflected
that private complainant had only 1,921 votes instead of 6,921 votes. As
chairman of the Municipal Board of Canvassers, petitioner’s concern was to
assure accurate, correct and authentic entry of the votes. Her failure to
exercise maximum efficiency and fidelity to her trust deserves not only
censure but also the concomitant sanctions as a matter of criminal
responsibility pursuant to the dictates of the law.19
The fact that the number of votes deducted from the actual votes received by
private complainant, Sen. Aquilino Pimentel, Jr. was not added to any
senatorial candidate does not relieve petitioner of liability under Section
27(b) of Rep. Act No. 6646. The mere decreasing of the votes received by a
candidate in an election is already punishable under the said provision.20
At this point, we see no valid reason to disturb the factual conclusions of the
appellate court. The Court has consistently held that factual findings of the
trial court, as well as of the Court of Appeals are final and conclusive and
may not be reviewed on appeal, particularly where the findings of both the
trial court and the appellate court on the matter coincide.21
Public policy dictates that extraordinary diligence should be exercised by the
members of the board of canvassers in canvassing the results of the elections.
Any error on their part would result in the disenfranchisement of the voters.
The Certificate of Canvass for senatorial candidates and its supporting
statements of votes prepared by the municipal board of canvassers are
sensitive election documents whose entries must be thoroughly scrutinized.22
In our review, the votes in the SOV should total 6,998.23
As between the grand total of votes alleged to have been received by private
complainant of 6,921 votes and statement of his actual votes received of
6,998 is a difference of 77 votes. The discrepancy may be validly attributed
to mistake or error due to fatigue. However, a decrease of 5,000 votes as
reflected in the Statement of Votes and Certificate of Canvass is substantial,
it cannot be allowed to remain on record unchallenged, especially when the
error results from the mere transfer of totals from one document to another.
WHEREFORE, the instant petition is DENIED. The assailed Decision of
the Court of Appeals sustaining petitioner’s conviction but increasing the
minimum penalty in her sentence to one year instead of six months is
AFFIRMED.
ERNESTINO P. DUNLAO, SR., petitioner, vs. THE HONORABLE
COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES, represented
by the Office of the Solicitor General, and LOURDES DU, respondents.
Petitioner Ernestino P. Dunlao, Sr. is accused of violating Presidential
Decree No. 1612, otherwise known as the Anti-Fencing Law, in an
information which reads:
INFORMATION
The undersigned accuses the above-named accused of Violation of Anti-
Fencing Law of 1979 (Presidential Decree 1612), committed as follows:
That on or about a week prior to October 25, 1986, in the City of Davao,
Philippines, and within the jurisdiction of this Honorable Court, the above-
mentioned accused, with intent to gain for himself, wilfully, unlawfully and
feloniously purchased and received dismantled farrowing crates made of GI
pipes, valued at P20,000.00, knowing the same to be the subject of thievery,
thereby committing an act of fencing, in violation of the Anti-Fencing Law
of 1979, to the damage and prejudice of the owner thereof Lourdes Farms,
Inc., represented by Lourdes Du.
Contrary to law.
Davao City, Philippines, January 19, 1987.
(SGD.) ANTONINA B. ESCOVILLA
4th Asst. City Fiscal[1]
Petitioner is a duly licensed retailer and wholesaler of scrap iron in Davao
City using the business name Dunlao Enterprise.
On October 25, 1986 at about 2:30 p.m. Fortunato Mariquit and Carlito
Catog, both employees of Lourdes Farms, were instructed by its proprietor,
Mrs. Lourdes Du, to go to petitioners premises together with police officers
Pfc. Epifanio Sesaldo and Pat. Alfredo Ancajas to verify information
received that some farrowing crates and G.I. pipes stolen from Lourdes
Farms were to be found thereat.
Upon arrival at petitioners compound, the group saw the farrowing crates and
pipes inside the compound. They also found assorted lengths of G.I. pipes
inside a cabinet in petitioners shop and another pile outside the shop but
within the compound.
After he was informed by the police operatives that said pipes were owned
by Lourdes Farms and had been stolen from it, petitioner voluntarily
surrendered the items. These were then taken to the police station.
On February 16, 1987, Criminal Case No. 14655 was filed in the Regional
Trial Court of Davao city, Branch 9, accusing petitioner of violation of the
Anti-Fencing Law.
On March 13, 1987, petitioner was arraigned and pleaded NOT GUILTY.
Trial ensued and on May 30, 1989, the trial court rendered judgment, the
dispositive portion of which reads:
PREMISES CONSIDERED and the evidence being sufficient, this Court
finds ERNESTINO P. DUNLAO, SR., GUILTY, beyond reasonable doubt
of Violation of Anti-Fencing Law of 1979 and hereby sentences him to
imprisonment of Six (6) Years, Eight (8) Months, One (1) Day as minimum
to Seven (7) Years and Four (4) Months as maximum of Prision Mayor with
all the accessory penalties provided by law.
SO ORDERED.[2]
Petitioner then appealed his conviction to the Court of Appeals. On May 10,
1993, the appellate court promulgated its decision[3] affirming the judgment
of the trial court.
Hence, this petition.
Petitioner states that the appellate court erred:
(A) IN NOT FINDING THAT AT LEAST TWO (2) ELEMENTS OF THE
CRIME CHARGED, NAMELY, THE ALLEGED PURCHASE BY THE
ACCUSED-APPELLANT OF THE GI-PIPES AND HIS ALLEGED
KNOWLEDGE OF THEIR BEING STOLEN ITEMS, WERE NOT
PROVEN BY THE PROSECUTIONS EVIDENCE;
(B) IN NOT FINDING THAT ACCUSED-APPELLANT, A DULY
LICENSED SCRAP METAL BUSINESSMAN FOR MORE THAN
FIFTEEN (15) YEARS, HAD ACTED IN GOOD FAITH AND WITHOUT
ANY CRIMINAL INTENT IN POSSESSING AS TEMPORARY
CUSTODIAN OF SAID GI-PIPES BY BRINGING THEM INSIDE HIS
BUSINESS ESTABLISHMENT, WHOSE INSIDE PREMISES WERE
OPEN TO PUBLIC VIEW, BEFORE DARK SET IN ON THE DAY THEY
WERE BROUGHT TO HIM BY WELL-DRESSED JEEP-RIDING MEN
WHO MERELY OFFERED SAID ITEMS TO HIM FOR SALE BUT WHO
FAILED TO RETURN TO HIS ESTABLISHMENT UNTIL POLICE
OPERATIVES WENT TO HIS BUSINESS PREMISES A FEW DAYS
THEREAFTER.[4]
In brief, petitioner argues that the prosecution failed to establish the fact that,
in receiving and possessing the subject items, he was motivated by gain or
that he purchased the said articles. Further, he questions the alleged value of
the stolen properties stating that they are worth a lot less than what the trial
court declared them to be.
Under Presidential Decree 1612,[5] fencing is the act of any person who,
with intent to gain for himself or for another, shall buy, receive, possess,
keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any
other manner deal in any article, item, object or anything of value which he
knows, or should be known to him, to have been derived from the proceeds
of the crime of robbery or theft.
There is no question that the farrowing crates and assorted lengths of G.I.
pipes were found in the premises of petitioner. The positive identification by
Fortunato Mariquit, an employee of Lourdes Farms, Inc., that these items
were previously owned by it gave rise to a presumption of fencing under the
law:
Sec. 5. Presumption of Fencing. Mere possession of any good, article, item,
object, or anything of value which has been the subject of robbery or thievery
shall be prima facie evidence of fencing.
In the instant case, did petitioner Ernestino Dunlao succeed in rebutting this
presumption?
We hold in the negative.
First of all, contrary to petitioners contention, intent to gain need not be
proved in crimes punishable by a special law such as P.D. 1612.
The law has long divided crimes into acts wrong in themselves called acts
mala in se, and acts which would not be wrong but for the fact that positive
law forbids them, called acts mala prohibita.[6] This distinction is important
with reference to the intent with which a wrongful act is done. The rule on
the subject is that in acts mala in se, the intent governs, but in acts mala
prohibita, the only inquiry is, has the law been violated?[7] When an act is
illegal, the intent of the offender is immaterial.[8]
In the case of Lim v. Court of Appeals[9] involving violation of the Anti-
Fencing Law, we said:
On the aspect of animus furandi, petitioner is of the belief that this element
was not clearly established by the Peoples evidence and he, therefore, draws
the conclusion that respondent court seriously erred in presuming the
existence of intent to gain. Again, this supposition ignores the fact that intent
to gain is a mental state, the existence of which is demonstrated by the overt
acts of a person (Soriano vs. People, 88 Phil. 368 [1951]; 1 Reyes, Revised
Penal Code, Eleventh Rev. Ed., 1977, p. 45; 1 Aquino, Revised Penal Code,
1988 Ed., p. 197). And what was the external demeanor which petitioner
showed from which the trial court and respondent court inferred animus
furandi? These circumstances were vividly spelled in the body of the
judgment which petitioner chose to blandly impugn and over which he
remains indifferent even at this crucial stage. Withal, the sinister mental state
is presumed from the commission of an unlawful act in bringing out the tires
from his bodega which were loaded on his pick-up (People vs. Sia Teb Ban,
54 Phil. 52 [1929]; 1 Reyes, supra at P. 46; Section 3(b), Rule 131, Revised
Rules on Evidence). At any rate, dolo is not required in crimes punished by a
special stature like the Anti-Fencing Law of 1979 (U.S. vs. Go Chico, 14
Phil. 128 [1909]; 1 Reyes, supra at p. 58) because it is the act alone,
irrespective of the motives which constitutes the offense (U.S. vs. Siy Cong
Bieng, et al., 30 Phil. 577 [1915]; 1 Reyes, supra, at p. 59; 1 Aquino, supra,
at p. 52).
Secondly, the law does not require proof of purchase of the stolen articles by
petitioner, as mere possession thereof is enough to give rise to a presumption
of fencing.[10]
It was incumbent upon petitioner to overthrow this presumption by sufficient
and convincing evidence but he failed to do so. All petitioner could offer, by
way of rebuttal, was a mere denial and his incredible testimony that a person
aboard a jeep unloaded the pipes in front of his establishment and left them
there.
A. There was a jeep loaded with G.I. pipes where he approached me with the
G.I. pipes but I refused to buy and instead requested me that they will unload
those G.I. pipes in front of my establishment.
Q. Now, did you have a talk with that person whom you said arrived aboard
the jeep which was carrying G.I. pipes?
A. We had a talk requesting me that they will just unload the G.I. pipe but we
have never talked that I am going to buy those G.I. pipes.
Q. Can you recall what did the man tell you as he asked you to allow him to
unload those G.I. pipes?
A. He told me that he would just leave them temporarily and he will come
back but it took a long time, he failed to come back.
Q. What time, more less, of the day was that when the unloading of the G.I.
pipes was made, was it in the morning or afternoon?
A. I can remember it was in the afternoon but I am not certain as to the time.
Q. Can you estimate the time in the afternoon?
A. May be around 2 or 3 oclock but I am not certain, it was in the afternoon.
Q. You said that man who unloaded the G.I. pipes did not return anymore
and so, what did you do with the G.I. pipes that were unloaded in front of
your establishment?
A. That was already late in the afternoon, around 5:30 up to 6:00 oclock, we
are about to close, so what I did I have it brought inside my compound for
safekeeping.[11]
In the Lim[12] case, we held that:
x x x the presumption of fencing under Section 5 of Presidential Decree 1612
x x x must be upheld in the light of petitioners shallow demurrer premised on
a denial and alibi, since a disputable presumption on this score is sufficient
until overcome by contrary evidence.
The Court notes that the stolen articles were found displayed[13] on
petitioners shelves inside his compound.If petitioner were merely keeping the
farrowing crates and G.I. pipes for the men aboard the jeep, why did he
display them? When a storeowner displays articles, it is assumed that he is
doing so with the intention of selling them.
Furthermore, the Court finds it strange that petitioner did not even bother to
ascertain the identity of the person or persons who deposited the articles with
him. We quote with approval the trial courts observation that:
The narration of how the items were simply dumped at the compound of the
accused; the fragile and vague statement that the unidentified party unloading
the items would bring more items at some indefinite date; x x x that accused
caused the pipes to be brought inside the compound of his own volition
without any such arrangement with the strangers; that the latter did not return
thereafter; that some of the items delivered by the strangers were distributed
in and around the compound and in cabinets inside the building already cut in
short pieces; that accused cannot produce any proof of ownership by the
persons who simply unloaded the items then left without coming back these
are matters which common sense and sound business practices would
normally clarify in the face of the express provisions of the Anti-fencing
Law.x x x And when the accused took it upon himself to protect and transfer
inside his compound items unloaded by total strangers without any
agreement as to how the items would be sold or disposed of nor how soon
agreement would be compensated, a rather dubious aura of illegitimacy
envelopes and taints the entire transaction. Lastly, petitioner questions the
value of the stolen articles as found by the trial court and as affirmed by the
Court of Appeals. He contends that the pipes were worth only P200.00, not
the P20,000.00 alleged in the Information.
Prosecution witness Carlito Catog testified on the value of the stolen pipes Q. Now, what was the quantity of the pipes that you were able to bring from
stating that, as he worked as purchaser for Lourdes Farms, he was the place of Mr. Dumlao to the police station?
knowledgeable about their true worth. He also explained the basis of the
estimate of the said articles:[14] A. Almost a truckload.

Q. Now, those G.I. pipes which you said you saw in the premises of Mr. Q. What did you say, it was a dump truck?
Dumlao and which you earlier mentioned as having been identified by you as
coming from Lourdes Farms, can you tell the Honorable Court, more or less, A. Almost a load of a dump truck.
how much did you buy those pipes?
Q. After reaching the police station, what happened?
A. I arrive at the amount of Fifty Nine Thousand (P59,000.00) as my
estimate. A. We unloaded it in the police station and we went home.

Q. Fifty Nine?
A. Fifty Nine Thousand Pesos (P59,000.00).
Q. And can you tell the Honorable Court what is your basis of making this
estimate?
A. The G.I. pipes were made into piggery crates, we use the 3 / 4 inch by 20
feet G.I. pipes in fabricating. We use 6 lengths of those pipes at the cost of
P80.00 per crate. So, we arrive at the amount of P480.00 of the materials, the
G.I. pipes used in fabricating crates, plus the cost of fabrication which we
paid to the one making at P700.00 per crate, so we arrive at P1,180.00 per
crate and the number of crates per estimate, which we recovered from the
premises of Mr. Dumlao is about more or less 50 crates. So, we arrive at
Fifty Nine Thousand Pesos (P59,000.00).
In line with our ruling in the Lim case,[16] petitioner should pay Lourdes
Farms, Inc. represented by its owner Mrs. Lourdes Du, the sum of
P20,000.00 minus the value of the pipes and farrowing crates recovered and
in the custody of the police, without subsidiary imprisonment in case of
insolvency. WHEREFORE, the decision of the Court of Appeals is hereby
AFFIRMED.Petitioner is ordered to pay Lourdes Farms, Inc., represented by
Mrs. Lourdes Du, the sum of P20,000.00 minus the value of the recovered
pipes and farrowing crates, without subsidiary imprisonment in case of
insolvency.

The trial court, however, based its decision on the amount of P20,000.00 as
alleged in the information, instead of the appraisal of P59,000.00 made by
Mr. Catog. The Court believes that P20,000.00 is a more realistic estimate of
the value of the stolen pipes. Petitioners claim that the pipes were worth only
P200.00 is not credible considering that it took a truck to haul off the entire
load from petitioners premises, as testified to by Fortunato Mariquit.[15]

Q. How did you bring the G.I. pipes from the place of Mr. Dumlao to the
police station?
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NORIEL LACERNA y
CORDERO & MARLON LACERNA y ARANADOR, accused.
A. We loaded them in a dump truck owned by Federico Jaca.
MARLON LACERNA y ARANADOR, accused-appellant.
DECISION
PANGANIBAN, J.:
The unrelenting and pervading war against illegal drugs has absorbed the
attention of all branches of government, both national and local, as well as
media, parents, educators, churches and the public at large. This case is one
more intrepid battle in such all-out war. Herein appellant seeks acquittal on
the ground that his acts did not constitute the crime of giving away prohibited
drugs penalized by Section 4 of Republic Act No. 6425, as amended (The
Dangerous Drugs Act). Nonetheless, he cannot escape the law because the
very same deeds, which appellant admits to have performed, show his
culpability for illegal possession of prohibited drugs -- penalized in Section 8
of R.A. 6425, as amended -- which is necessarily included in the crime
charged in the Information.
Statement of the Case
This ruling is explained by the Court as it resolves this appeal from the
Decision,[1] dated February 24, 1993, of the Regional Trial Court of Manila,
Branch 16,[2] convicting Appellant Marlon Lacerna y Aranador of violation
of Section 4 of Republic Act No. 6425, as amended x x x.
Asst. City Prosecutor of Manila Juan O. Bermejo, Jr. charged appellant and
Noriel Lacerna in an Information,[3] dated September 16, 1992, which reads
as follows:[4]
The undersigned accuses NORIEL LACERNA Y CORDERO and
MARLON LACERNA Y ARANADOR of a violation of Section 4 Art. II, in
relation to Section 21, Art. IV of Republic Act 6425, as amended by
Presidential Decree No. 1675, xxx
That on or about September 12, 1992, in the City of Manila, Philippines, the
said accused, not being authorized by law to sell, deliver or give away to
another or distribute any prohibited drug, did then and there wilfully,
unlawfully and jointly sell, deliver or give away to another the following, to
wit:
Eighteen (18) blocks of marijuana
flowering tops - weight 18.235 kilograms
which is a prohibited drug.
When the case was called for arraignment on October 7, 1992, appellant and
his co-accused appeared without counsel but they alleged that they had
engaged the services of a certain Atty. Kangleon. Thus, the trial court
provisionally appointed Atty. Rodolfo P. Libatique of the Public Attorneys
Office as counsel de oficio, in case Atty. Kangleon did not appear for the
arraignment on October 28, 1992.[5] Because the alleged counsel de parte
failed to show up during the arraignment on that date, Atty. Libatique
assisted the accused who pleaded not guilty.[6]
After trial on the merits, the court a quo promulgated the assailed Decision,
the dispositive portion of which reads:[7]
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:
I. The guilt of the accused Marlon Lacerna having been established beyond
reasonable doubt for the crime of violation of Section 4 of RA 6425, as
amended, he is found guilty of the same, sentencing him to life imprisonment
and to pay a fine of P20,000. With costs.
II. The guilt for the crime charged of accused Noriel Lacerna not having been
established beyond reasonable doubt he is hereby ACQUITTED. The warden
of the Manila City Jail is ordered to release his person, unless held on other
charges.
The evidence seized in this case is to remain in the custody of the NBI
Director as Drugs Custodian of the Dangerous Drugs Board. (RA 425, Sec.
36; Supreme Court Circular No. 9 dated July 18, 1973) to be properly
disposed of after the final disposition of this case.
Hence, only Marlon Lacerna (his co-accused having been acquitted)
interposed this appeal direct to the Supreme Court in view of the life penalty
imposed.[8]
The Facts
Version of the Prosecution
The prosecution presented the following witnesses: PO3 Carlito P.
Valenzuela, Forensic Chemist Aida A. Pascual, and PO3 Rafael Melencio.
Their testimonies are summarized by the Solicitor General in the Appellees
Brief as follows:[9]
On September 12, 1992, Police Officer 3 (PO3) Carlito P. Valenzuela, a
member of the Mobile Patrol Division of the Western Police District (WPD),
was assigned to man the checkpoint and patrol the area somewhere along the
sidestreets of Radial Road near Moriones Street. The assignment to monitor
strategic places in the city and barangays of Manila was a direct order from
General Nazareno. Thus, he and his companion PO3 Angelito Camero went
about cruising the area in their Mobile Patrol car, with PO3 Valenzuela at the
helm. At about 2:00 p.m., appellant and co-accused, who were aboard a
taxicab, passed by PO3 Valenzuelas place of assignment, which was then
heavy with traffic, looking suspicious (t.s.n., PO3 Valenzuela, Nov. 11, 1992,
pp. 3-4; Nov. 20, 1992, pp. 2-7).
Appellant was seated beside the taxi driver while co-accused was seated at
the left back seat of the taxi. When PO3 Valenzuela looked at the occupants
of said taxi, the latter bowed their heads and slouched, refusing to look at
him. Feeling that something was amiss, PO3 Valenzuela and his companion
stopped the vehicle, signaling the driver to park by the side of the road (t.s.n.,
PO3 Valenzuela, Nov. 11, 1992, pp. 3-4).
PO3 Valenzuela and his co-police officer asked permission to search the
vehicle. As the occupants readily agreed, the police officers went about
searching the luggages in the vehicle which consisted of a knapsack and a
dark blue plastic grocery bag. They asked appellant what the contents of the
plastic bag were. Co-accused Noriel Lacerna immediately answered that the
bag contained his vomit (t.s.n., PO3 Valenzuela, Nov. 11, 1992, pp. 4-5).
Skeptical of what appellant and co-accused disclosed as regards the contents
of the plastic bag, PO3 Valenzuela made a hole in the bag and peeped inside.
He found several blocks wrapped in newspaper, with the distinct smell of
marijuana emanating from it. PO3 Valenzuela opened one of the boxes and
saw dried marijuana leaves. He told appellant and co-accused that the
contents of the bag were marijuana, which co-accused readily affirmed.
According to both Lacernas, the bag was a padala of their uncle. Specifically,
they claimed that the bag was sent by their uncle, who happened to be in
Baguio City, for shipment to Iloilo (t.s.n., PO3 Valenzuela, Nov. 11, 1992,
pp. 5-7; Nov. 20, 1992, pp. 8-10).
Appellant and co-accused, and the plastic bag containing blocks of marijuana
were brought by PO3 Valenzuela and PO3 Camero to the WPD Headquarters
on UN Avenue, Manila.[10] At about 9:00 p.m. of the same day, both
appellant and co-accused were turned over to PO3 Rafael Melencio for
investigation while the blocks were turned over to Lt. de Soto (tsn., PO3
Melencio, Dec. 11, 1992, pp. 3-5. 20).
Lt. de Soto counted the blocks of marijuana, numbering eighteen (18) in all.
Each block was wrapped in newspaper. After seeing what the contents of the
blocks were, the specimens (Exhs. B to B-19) were brought to the National
Bureau of Investigation (NBI) for further examination.[11] On the other
hand, PO3 Melencio investigated appellant and co-accused, informing them
of their constitutional rights during a custodial investigation. Thereafter, he
prepared the Affidavit of Apprehension and the Booking Sheet and Arrest
Report (Exhs. A, G, List of Exhibits, pp. 1, 15; tsn., PO3 Melencio, Dec. 11,
1992, pp. 15-24).
NBI Forensic Chemist Aida A. Pascual examined the eighteen (18)
confiscated blocks which tested positive of containing marijuana (Exhs. C, F
to F-9. List of Exhibits, pp. 2-14; tsn., A. Pascual, Dec. 2, 1992, pp. 2-5).
Version of the Defense
Appellant sets up the defense of denial, alleging that the blue plastic bag was
owned by his uncle who requested him to bring it to Iloilo. He also denied
knowing that it contained marijuana. In his Brief prepared by the Public
Attorneys Office, he narrated his version of the factual circumstances of this
case, as follows:[12]
On September 12, 1992, at about 2:00 P.M., accused Marlon and Noriel
Lacerna were riding in a taxicab on their way to (the) North Harbor to board
a boat bound for Iloilo City. While plying along Pier 15 their taxicab was
flagged down by a patrol mobile car. Accused Marlon Lacerna (appellant
herein) was sitting in front while accused Noriel Lacerna was at the back of
the taxicab. The accused carried two bags. One bag contained their personal
belongings and the other bag contained things which their uncle Edwin
Lacerna asked them to bring along. When their taxicab was stopped, the two
policemen in the Mobile car requested them that they and their baggage be
searched. Confident that they have not done anything wrong, they allowed to
be searched. During the (search), the two accused were not allowed to alight
from the taxicab. The knapsack bag which contained their clothes was first
examined in front of them. The second bag was taken out from the taxi and
was checked at the back of the taxicab. The accused were not able to see the
checking when the policemen brought the plastic bag at the back of the taxi.
After checking, the policemen told them its positive. The accused were
(asked) to alight and go to the patrol car. They were brought to the WPD
Headquarters at United Nations. While there, they were brought inside a
room. They asked what wrong they have done but the policemen told them to
wait for Major Rival. At about 8:00 oclock P.M., Major Rival talked to them
and asked them where the baggage came from and they answered that it was
given to them by their uncle. Then Major Rival asked them to hold the
marijuana and pictures were taken. Later, they were brought inside the cell
where they were maltreated by the Kabo. The Kabo forced them to admit
ownership of the marijuana. Noriel was boxed on the chest, blindfolded and a
plastic (bag) was placed on his neck and was strangled. The mauling took
place for about 30 minutes inside the toilet. They refused to sign the Booking
and Arrest Report but they impressed their fingerprint on a white bond paper.
They were brought by Melencio to the Inquest Prosecutor at the City Hall.
On the way to the Inquest Prosecutor, Melencio told them to admit the
charge against them before the Inquest Fiscal, because if they will deny,
something (would happen) to them in the afternoon and Melencio even
uttered to them vulva of your mother. Because they were apprehensive and
afraid, they admitted the charge before the Inquest Fiscal.
(Appellant) Marlon Lacerna first met his uncle Edwin Lacerna at Munoz
Market. The second time was on September 11, 1992, when his uncle went to
his brothers house in Caloocan City and requested him to bring his (uncle)
personal belongings upon learning that he (Marlon) is leaving for Iloilo city
the next day, September 12, 1992. He told his uncle to bring his personal
belongings either in the evening of that day or the following day at the
(Grand) Central (Station), Monumento because he was going to buy a ticket
for Noriel as he intend (sic) to bring the latter with him in going home to the
province. His uncle already gave a ticket for him. When he and Noriel
(arrived) at the Grand Central at about 10:00 oclock A.M. on September 12,
1992, their uncle was already there. The latter placed the plastic bag besides
their baggages. They no longer inspected the contents of the bag as the same
was twisted and knotted on top. After getting a ticket from the office of Don
Sulpicio Lines, Marlon told Noriel to hail a taxi and then they proceeded to
the pier.
(Appellants) purpose in going home to Iloilo was to get all the requirements
needed in his application to enter the Marines.
Accused Noriel just arrived in Manila three days before September 12, 1992
to look for a job and was staying with (appellant) at Caloocan City. In the
evening of September 11, 1992, (appellant) requested him to come xxx with
him to Iloilo and assured him that he (would) be the one to pay for (Noriels)
fare. (TSN., January 6, 1993, pp. 3-23; January 8, 1993, pp. 2-12; January 11,
1993, pp. 2-18; January 20, 1992, pp. 2-6; January 22, 1993, pp. 2-14)
Ruling of the Trial Court
The court a quo observed that appellant could not be convicted of delivering
prohibited drugs because the Information did not allege that he knowingly
delivered marijuana. Neither could he be convicted of transporting or
dispatching in transit such prohibited drugs because these acts were not
alleged in the Information. The trial court mused further that appellant could
not be convicted of selling marijuana because the elements constituting this
crime were not proven. However, the Information charged appellant with
giving away to another prohibited drugs, a charge which was different from
delivery defined under Section 2 (f) [13] of R.A. 6245, as amended. Citing
People vs. Lo Ho Wing,[14] the trial court ruled that giving away to another
is akin to transporting prohibited drugs, a malum prohibitum established by
the mere commission of said act. Thus, the court a quo convicted appellant of
giving away marijuana to another on the following premise:[15]
It is not denied by (appellant) that he did give to his co-accused cousin Noriel
Lacerna the bundled 18 blocks of marijuana who thereupon seated himself at
the rear of the taxi with the marijuana. His claim that he did not know the
contents of the blue plastic bag can hardly be believed because it is within
judicial notice that the marijuana contents readily emits a pungent odor so
characteristic of marijuana as what happened when the 18 blocks were
displayed in open Court. But as stated, guilty knowledge is not required by
the phrase GIVE AWAY TO ANOTHER (Sec. 4). It was clearly established
that he gave the stuff to another, that is, to his co-accused Noriel Lacerna.
The law does not distinguish as to whether the word another refers to a third
person other than a co-accused or to a co-accused. The information, as in the
case at bar, need not allege guilty knowledge on the part of Marlon Lacerna
in giving away to another the marijuana. (Appellant) should, therefor be
found culpable for violating Section 4 of RA 6425, as amended, as charged
for giving away to another the marijuana.
Accused Noriel Lacerna, on the other hand, was acquitted for insufficiency
of evidence. The court a quo reasoned that it cannot be said that he did give
away to another the marijuana for it was (appellant) who gave the marijuana
to (Noriel). Besides, unlike appellant who was urbanized in mannerism and
speech, Noriel Lacerna manifested probinsyano traits and was, thus, unlikely
to have dealt in prohibited drugs.
The Issues
Appellant objects to the trial courts Decision and assigns the following
errors:[16]
I The Solicitor General disagrees, contending that the search and seizure were
The lower court erred in making a sweeping statement that the act of giving
away to another() is not defined under R.A. 6425 specifically requiring
knowledge what intent one (sic) is passing is a dangerous drug, as
contradistinguished from the term deliver; where knowledge is required.
II
The lower court erred in not giving credence to the assertion of accused-
appellant that he had no knowledge that what were inside the plastic bag
given to him by his uncle were marijuana leaves.
III
The trial court erred in convicting accused-appellant despite failure of the
prosecution to prove his guilt beyond reasonable doubt.
The Courts Ruling
After meticulously reviewing the records of the case and taking into account
the alleged errors cited above and the argument adduced in support thereof,
the Court believes that the issues can be restated as follows: (1) Was
appellants right against warrantless arrest and seizure violated? (2) Was the
trial court correct in convicting appellant for giving away to another 18
blocks of marijuana? and (3) May the appellant be held guilty of illegal
possession of prohibited drugs? The Court answers the first two questions in
the negative and the third in the affirmative.
First Issue: Appellants Right Against
Warrantless Search and Seizure
The defense argues that the bricks of marijuana were inadmissible in
evidence as they were obtained through illegal search and seizure. Appellant
alleges that at the time of the search and seizure, he and his co-accused were
not committing any crime as they were merely riding a taxicab on the way to
Pier 15, North Harbor in Manila. Hence, the precipitate arrest and seizure
violated their constitutional right and the marijuana seized constituted fruits
of the poisonous tree.
consistent with recent jurisprudential trend liberalizing warrantless search
and seizure where the culprits are riding moving vehicles, because a warrant
cannot be secured in time to apprehend the mobile target.
Both contentions are inaccurate. In the recent case of People vs. Cuison,[17]
this Court reiterated the principles governing arrest, search and seizure. To
summarize, let us begin with Section 2, Article III of the 1987 Constitution
which provides:
SEC. 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
The Constitution further decrees that any evidence obtained in violation of
the provision mentioned is inadmissible in evidence:
SEC. 3. x x x
(2) Any evidence obtained in violation of x x x the preceding section shall be
inadmissible for any purpose in any proceeding.
However, not being absolute, this right is subject to legal and judicial
exceptions. The Rules of Court, Section 12 of Rule 126, provides that a
person lawfully arrested may be searched for dangerous weapons or anything
which may be used as proof of the commission of an offense, without a
search warrant.
Five generally accepted exceptions to the rule against warrantless arrest have
also been judicially formulated as follows: (1) search incidental to a lawful
arrest, (2) search of moving vehicles, (3) seizure in plain view, (4) customs
searches, and (5) waiver by the accused themselves of their right against
unreasonable search and seizure.[18] Search and seizure relevant to moving
vehicles are allowed in recognition of the impracticability of securing a
warrant under said circumstances. In such cases however, the search and
seizure may be made only upon probable cause, i.e., upon a belief,
reasonably arising out of circumstances known to the seizing officer, that an
automobile or other vehicle contains an item, article or object which by law
is subject to seizure and destruction.[19] Military or police checkpoints have
also been declared to be not illegal per se as long as the vehicle is neither
searched nor its occupants subjected to body search, and the inspection of the
vehicle is merely visual.[20]
In the case at bar, the taxicab occupied by appellant was validly stopped at
the police checkpoint by PO3 Valenzuela. It should be stressed as a caveat
that the search which is normally permissible in this instance is limited to
routine checks -- visual inspection or flashing a light inside the car, without
the occupants being subjected to physical or body searches. A search of the
luggage inside the vehicle would require the existence of probable cause.[21]
In applicable earlier Decisions, this Court held that there was probable cause
in the following instances: (a) where the distinctive odor of marijuana
emanated from the plastic bag carried by the accused;[22] (b) where an
informer positively identified the accused who was observed to have been
acting suspiciously;[23] (c) where the accused fled when accosted by
policemen;[24] (d) where the accused who were riding a jeepney were
stopped and searched by policemen who had earlier received confidential
reports that said accused would transport a large quantity of marijuana;[25]
and (e) where the moving vehicle was stopped and searched on the basis of
intelligence information and clandestine reports by a deep penetration agent
or spy -- one who participated in the drug smuggling activities of the
syndicate to which the accused belonged -- that said accused were bringing
prohibited drugs into the country.[26]
In the case at hand, however, probable cause is not evident. First, the radio
communication from General Nazareno, which the arresting officers received
and which they were implementing at that time, concerned possible cases of
robbery and holdups in their area.[27] Second, Noriel Lacernas suspicious
reactions of hiding his face and slouching in his seat when PO3 Valenzuelas
car passed alongside the taxicab might have annoyed the latter, or any other
law enforcer, and might have caused him to suspect that something was
amiss. But these bare acts do not constitute probable cause to justify the
search and seizure of appellants person and baggage. Furthermore, the
Claudio ruling cannot be applied to this case because the marijuana was
securely packed inside an airtight plastic bag and no evidence, e.g., a
distinctive marijuana odor, was offered by the prosecution.
Nonetheless, we hold that appellant and his baggage were validly searched,
not because he was caught in flagrante delicto, but because he freely
consented to the search. True, appellant and his companion were stopped by
PO3 Valenzuela on mere suspicion -- not probable cause -- that they were
engaged in a felonious enterprise. But Valenzuela expressly sought
appellants permission for the search. Only after appellant agreed to have his
person and baggage checked did the actual search commence. It was his
consent which validated the search, waiver being a generally recognized
exception to the rule against warrantless search.[28]
We are aware that this Court in Aniag, Jr. vs. COMELEC outlawed a search
based on an implied acquiescence, because such acquiescence was not
consent within the purview of the constitutional guaranty, but was merely
passive conformity to the search given under intimidating and coercive
circumstances.[29] In the case before us, however, appellant himself who
was urbanized in mannerism and speech expressly said that he was
consenting to the search as he allegedly had nothing to hide and had done
nothing wrong.[30] In his brief, appellant explicitly, even if awkwardly,
reiterated this: Confident that they [the accused] have not done anything
wrong, they allowed to be searched. This declaration of appellant is a
confirmation of his intelligent and voluntary acquiescence to the search. The
marijuana bricks were, therefore, obtained legally through a valid search and
seizure. They were admissible in evidence; there was no poisonous tree to
speak of.
Second Issue: Did Appellant
Give Away the Prohibited Drug?
The trial court justified the conviction of appellant for giving away to another
the prohibited drugs, because he literally handed to Noriel the plastic bag
containing marijuana, manually transferring the plastic bag from the front
seat to the backseat of the taxicab. We hold, however, that this is not the act
penalized by the Dangerous Drugs Act of 1972.
Section 4 of R.A. 6425, as amended, the violation of which is charged in the
Information, penalizes any person who, unless authorized by law, shall sell,
administer, deliver, give away to another, distribute, dispatch in transit or
transport any prohibited drug, or shall act as a broker in any of such
transactions.
The phrase give away is commonly defined as to make a present of; to
donate, or to make a sacrifice.[31] As used in a statute making it an offense
to sell, give away, or otherwise dispose of liquor without a license, this
phrase was construed as extending only to a disposition in ejusdem generis
with a sale or a gift.[32] It is synonymous with to furnish, a broad term
embracing the acts of selling and giving away with the intent of transferring
ownership. Selling by itself is one distinct mode of committing the offense,
and furnishing is intended only to include other modes of affording
something to others besides selling it.[33]
As distinguished from delivery, which is an incident of sale, giving away is a
disposition other than a sale. It is, therefore, an act short of a sale which
involves no consideration. The prohibited drug becomes an item or
merchandise presented as a gift or premium (giveaway), where ownership is
transferred.
According to appellant, he gave the plastic bag and the knapsack to Noriel
because the latter got into the taxicab first and because there was more room
in the backseat than in the front. By handing the plastic bag to Noriel,
appellant cannot be punished for giving away marijuana as a gift or premium
to another. In Cuison,[34] this Court acquitted an accused of carrying and
transporting prohibited drugs because the act per se of handing over a
baggage at the airport cannot in any way be considered criminal.
Further, adopting the trial courts interpretation would lead to absurd
conclusions. Following the trial courts line of reasoning, Noriel should have
been held liable for the same crime when he gave the plastic bag to PO3
Valenzuela for the latters inspection. And yet, the trial court inexplicably
acquitted him. Valenzuela would similarly be criminally culpable as he
testified that he turned over the plastic bag to his superior, Lt. de Soto. It is a
well-settled rule that statutes should receive a sensible construction so as to
give effect to the legislative intention and to avoid an unjust or an absurd
conclusion.[35]
Third Issue:
May Appellant Be Convicted
of Illegal Possession?
Appellants exoneration from giving away a prohibited drug to another under
Section 4 of the Dangerous Drugs Act does not, however, spell freedom from
all criminal liability. A conviction for illegal possession of prohibited drugs,
punishable under Section 8 of the same Act, is clearly evident.
In People vs. Tabar,[36] the Court convicted appellant of illegal possession
under Section 8 of said Act, although he was charged with selling marijuana
under Section 4, Article II thereof.[37]
The prevailing doctrine is that possession of marijuana is absorbed in the sale
thereof, except where the seller is further apprehended in possession of
another quantity of the prohibited drugs not covered by or included in the
sale and which are probably intended for some future dealings or use by the
seller.[38]
Possession is a necessary element in a prosecution for illegal sale of
prohibited drugs. It is indispensable that the prohibited drug subject of the
sale be identified and presented in court.[39] That the corpus delicti of illegal
sale could not be established without a showing that the accused possessed,
sold and delivered a prohibited drug clearly indicates that possession is an
element of the former. The same rule is applicable in cases of delivery of
prohibited drugs and giving them away to another.
In People vs. Manzano,[40] the Court identified the elements of illegal sale
of prohibited drugs, as follows: (1) the accused sold and delivered a
prohibited drug to another, and (2) he knew that what he had sold and
delivered was a dangerous drug. Although it did not expressly state it, the
Court stressed delivery, which implies prior possession of the prohibited
drugs. Sale of a prohibited drug can never be proven without seizure and
identification of the prohibited drug, affirming that possession is a condition
sine qua non.
It being established that illegal possession is an element of and is necessarily
included in the illegal sale of prohibited drugs, the Court will thus determine
appellants culpability under Section 8.
From the penal provision under consideration and from the cases adjudicated,
the elements of illegal possession of prohibited drugs are as follows: (a) the
accused is in possession of an item or object which is identified to be a
prohibited drug; (b) such possession is not authorized by law; and (c) the
accused freely and consciously possessed the prohibited drug.[41]
The evidence on record established beyond any doubt that appellant was in
possession of the plastic bag containing prohibited drugs, without the
requisite authority. The NBI forensic chemists identification of the marijuana
or Indian hemp was conclusive.
Appellant protests the trial courts finding that he knew that the plastic bag
contained marijuana. The lower court ruled that appellant could not have
possibly missed the pervasive pungent smell emitted by marijuana which was
duly noted when the marijuana was exhibited in open court. This reasoning,
however, is not supported by the evidence; the plastic bag, at the time of the
search and seizure, was twisted and tied at the top, and thus airtight. PO3
Valenzuela did not even notice this pervasive characteristic smell until he
poked a hole in the plastic bag and unwrapped the newspaper covering one of
the marijuana bricks.
It is well-settled that criminal intent need not be proved in the prosecution of
acts mala prohibita. On grounds of public policy and compelled by necessity,
courts have always recognized the power of the legislature, as the greater
master of things, to forbid certain acts in a limited class of cases and to make
their commission criminal without regard to the intent of the doer.[42] Such
legislative enactments are based on the experience that repressive measures
which depend for their efficiency upon proof of the dealers knowledge or of
his intent are of little use and rarely accomplish their purposes; besides, the
prohibited act is so injurious to the public welfare that, regardless of the
persons intent, it is the crime itself.[43]
This, however, does not lessen the prosecutions burden because it is still
required to show that the prohibited act was intentional.[44] Intent to commit
the crime and intent to perpetrate the act must be distinguished. A person
may not have consciously intended to commit a crime; but if he did intend to
commit an act, and that act is, by the very nature of things, the crime itself,
then he can be held liable for the malum prohibitum.[45] Intent to commit the
crime is not necessary, but intent to perpetrate the act prohibited by the
special law must be shown. In Bayona, the Court declared:[46]
xxx The law which the defendant violated is a statutory provision, and the
intent with which he violated it is immaterial. x x x x The act prohibited by
the Election Law was complete. The intention to intimidate the voters or to
interfere otherwise with the election is not made an essential element of the
offense. Unless such an offender actually makes use of his revolver, it would
be extremely difficult, if not impossible, to prove that he intended to
intimidate the voters.
The rule is that in acts mala in se there must be a criminal intent, but in those
mala prohibita it is sufficient if the prohibited act was intentionally done.
Care must be exercised in distinguishing the difference between the intent to
commit the crime and the intent to perpetrate the act. * * * (U.S. vs. Go
Chico, 14 Phil., 128).
In illegal possession of prohibited drugs under Section 8 of the Dangerous
Drugs Act, the prosecution is not excused from proving that possession of the
prohibited act was done freely and consciously, which is an essential element
of the crime.
In the case at bar, appellant was found to have in his possession a plastic bag
containing 18 kg of marijuana formed into 18 bricks which were separately
wrapped. His possession thereof gives rise to a disputable presumption under
Section 3[j], Rule 131 of the Rules of Court,[47] that he is the owner of such
bag and its contents. His bare, unpersuasive, feeble and uncorroborated
disavowal -- that the plastic bag was allegedly given to him by his uncle
without his knowing the contents -- amounts to a denial which by itself is
insufficient to overcome this presumption.[48] Besides, this defense, unless
substantiated by clear evidence, is invariably viewed with disfavor by courts,
for it can just as easily be concocted. Verily, it is a common and standard
defense ploy in most prosecutions involving dangerous drugs.[49]
Further, the trial court did not give credence to appellants denial. It is
axiomatic that appellate courts accord the highest respect to the assessment
of witnesses credibility by the trial court, because the latter was in a better
position to observe their demeanor and deportment on the witness stand.[50]
The defense failed to present sufficient reasons showing that the trial court
had overlooked or misconstrued any evidence of substance that would justify
the reversal of its rejection of appellants defense of denial.
Appellant is, therefore, liable for illegal possession of prohibited drugs under
Section 8 of the Dangerous Drugs Act.[51]
WHEREFORE, the assailed Decision is hereby MODIFIED. Appellant is
CONVICTED of illegal possession of prohibited drugs under Section 8 of
R.A. 6425; SENTENCED, in accordance with the Indeterminate Sentence
Law, to eight (8) years as minimum to twelve (12) years as maximum; and
ORDERED to pay a fine of twelve thousand pesos (P12,000.00). Costs de
oficio.
CELSO M.F.L. MELGAR v. PEOPLE
PERLAS-BERNABE, J.:
Before the Court is a petition for review on certiorari[1] assailing the
Decision[2] dated August 28, 2015 and the Resolution[3] dated February 10,
2016 of the Court of Appeals (CA) in CA-G.R. CEB-CR No. 02211, which
affirmed the Judgment[4] dated September 10, 2012 of the Regional Trial
Court of Cebu City, Branch 6 (RTC) in Crim. Case No. CBU-87386 finding
petitioner Celso M.F.L. Melgar (Melgar) guilty beyond reasonable doubt of
violating Section 5 (e) of Republic Act No. (RA) 9262,[5] otherwise known as
the "Anti-Violence Against Women and their Children Act of 2004."
The Facts
An Information was filed before the RTC charging Melgar with violation
Section 5 of RA 9262, the accusatory portion of which reads:
That on or about the month of August, 2001 and subsequent thereto, in the
City of Cebu, Philippines and within the jurisdiction of this Honorable Court,
the said accused, having the means and capacity to give financial support,
with deliberate intent, did then and there commit acts of economic abuse
against one [AAA,[6]] and her minor son, [BBB] (12 years old), by depriving
them of financial support, which caused mental or emotional anguish, public
ridicule or humiliation, to AAA and her son.
CONTRARY TO LAW.[7]
After arraignment wherein Melgar pleaded not guilty to the charge against
him, he and AAA entered into a compromise agreement[8] on the civil aspect
of the case. After the RTC's approval of the compromise agreement on June
24, 2010, the criminal aspect of the case was provisionally dismissed with
Melgar's conformity. However, one (1) year later, or on June 24, 2011, the
prosecution moved to set aside the compromise agreement and to revive the
criminal action, on the ground that Melgar sold the property, which was
supposed to, among others, answer for the support-in-arrears of his son,
BBB, from 2001 to 2010 pursuant to their compromise agreement.
Consequently, the RTC revived the criminal aspect of the case and allowed
the prosecution to present its evidence.[9]
The prosecution alleged that in 1995, AAA had a romantic relationship with
Melgar, which resulted in the birth of BBB, an illegitimate child. Melgar
freely acknowledged the paternity of BBB as evidenced by the latter's
Certificate of Live Birth, as well as numerous photographs showing Melgar
with BBB. However, AAA's relationship with Melgar turned sour as the
latter had an affair with a younger woman. When BBB was just about one (1)
year old, Melgar stopped giving support, prompting AAA to file a case for
support, which was eventually granted. This notwithstanding, Melgar still
refused to give support for her and BBB. As such, AAA was constrained to
file the instant criminal case against Melgar.[10]
To substantiate her claims, AAA averred that Melgar could afford to provide
support of P8,000.00 per month because he has a lavish lifestyle with his
family. He owns a Toyota Avanza and his children are enrolled in. On the
other hand, her son, BBB, is a scholar at and she spends the amount of
P20,000.00 a month for his needs, of which she asked Melgar for P8,000.00
as support.[11]
For his part, Melgar was deemed to have waived his right to adduce evidence
due to his repeated failure to appear during trial.[12]
The RTC Ruling
In a Judgment[13] dated September 10, 2012, the RTC found Melgar guilty
beyond reasonable doubt of violating Section 5 (e) of RA 9262 and,
accordingly, sentenced him to suffer the penalty of imprisonment for an
indeterminate period of six (6) months of arresto mayor, as minimum, to
four (4) years and two (2) months of prision correccional, as maximum.[14]
The RTC found Melgar to have committed economic abuse against AAA and
their son, BBB, when he stopped supporting them. Worse, he sold the
property which was supposed to answer for his support-in-arrears from 2001
to 2010.[15]
Melgar moved for reconsideration,[16] which was, however, denied in an
Order[17] dated May 9, 2013 of the RTC. Aggrieved, Melgar appealed[18] to
the CA.
The CA Ruling
In a Decision[19] dated August 28, 2015, the CA affirmed Melgar's
conviction. It held that Melgar is legally obliged to support BBB.[20] As such,
when he deliberately and with evident bad faith deprived BBB of support, he
committed economic abuse under Section 5 (e) of RA 9262. In this regard,
the CA observed that the reinstatement of the criminal case was prompted by
Melgar's evident refusal to comply with the judgment based on compromise
agreement, particularly, in providing support to his son; and worse, in
conveying to another person the parcel of land which was supposed to,
among others, answer for the support-in-arrears of his son from 2001 to
2010.[21] Lastly, the CA ruled that Melgar's acts "has clearly caused mental or
emotional anguish, public ridicule or humiliation to [AAA] and her child[,
BBB]."[22]
Undaunted, Melgar moved for reconsideration,[23] which was, however,
denied in a Resolution[24] dated February 10, 2016; hence, this petition.
The Issue Before the Court
The issue for the Court's resolution is whether or not the CA correctly upheld
Melgar's conviction for violation of Section 5 (e) of RA 9262.
The Court's Ruling
The petition is bereft of merit.
Enacted in 2004, RA 9262 is a landmark legislation that defines and
criminalizes acts of violence against women and their children (VAWC)
perpetrated by women's intimate partners, i.e., husband, former husband, or
any person who has or had a sexual or dating relationship, or with whom the
woman has a common child, or against her child whether legitimate or
illegitimate, within or without the family abode, which result in or is likely to
result in, inter alia, economic abuse.[25] The said law defines economic abuse
as follows:
Section 3. Definition of Terms. - x x x.
xxxx
D. "Economic abuse" refers to acts that make or attempt to make a woman
financially dependent which includes, but is not limited to the following:
1. withdrawal of financial support or preventing the victim from engaging in
any legitimate profession, occupation, business or activity, except in cases
wherein the other spouse/partner objects on valid, serious and moral grounds
as defined in Article 73 of the Family Code;
2. deprivation or threat of deprivation of financial resources and the right to
the use and enjoyment of the conjugal, community or property owned in
common;
3. destroying household property;
4. controlling the victim's own money or properties or solely controlling the
conjugal money or properties.
xxxx
As may be gathered from the foregoing, "economic abuse" may include the
deprivation of support of a common child of the man-accused and the
woman-victim, whether such common child is legitimate or not.[26] This
specific act is penalized by Section 5 (e) of RA 9262, pertinent portions of
which read:
Section 5. Acts of Violence Against Women and Their Children. - The crime
of violence against women and their children is committed through any of
the following acts:
xxxx
Attempting to compel or compelling the woman or her child to engage
in conduct which the woman or her child has the right to desist from or
to desist from conduct which the woman or her child has the right to
engage in, or attempting to restrict or restricting the woman's or her
(e)
child's freedom of movement or conduct by force or threat of force,
physical or other harm or threat of physical or other hann, or
intimidation directed against the woman or child. This shall include, but
not limited to, the following acts committed with the purpose or effect
 of controlling or restricting the woman's or her child's movement or
conduct:
xxxx
Depriving or threatening to deprive the woman or her children of
(2) financial support legally due her or her family, or deliberately
providing the woman's children insufficient financial support;
Depriving or threatening to deprive the woman or her child of a legal
(3)
right;
xxxx
Under this provision, the deprivation or denial of financial support to the
child is considered an act of violence against women and children.[27]
Notably, case law instructs that the act of denying support to a child is a
continuing offense.[28]
In this case, the courts a quo correctly found that all the elements of violation
of Section 5 (e) of RA 9262 are present, as it was established that: (a) Melgar
and AAA had a romantic relationship, resulting in BBB's birth; (b) Melgar
freely acknowledged his paternity over BBB; (c) Melgar had failed to
provide BBB support ever since the latter was just a year old; and (d) his
intent of not supporting BBB was made more apparent when he sold to a
third party his property which was supposed to answer for, among others, his
support-in-arrears to BBB. Thus, the Court finds no reason to deviate from
the factual findings of the trial court, as affirmed by the CA, as there is no
indication that it overlooked, misunderstood or misapplied the surrounding
facts and circumstances of the case. In fact, the trial court was in the best
position to assess and detennine the credibility of the witnesses presented by
both parties and, hence, due deference should be accorded to the same.[29]
In an attempt to absolve himself from criminal liability, Melgar argues, inter
alia, that he was charged of violation of Section 5 (i) of RA 9262 as the
Information alleged that the acts complained of "caused mental or emotional
anguish, public ridicule or humiliation to [AAA] and her son[, BBB]." As
such, he contends that he cannot be convicted of violation of Section 5 (e) of
RA 9262.[30]
Melgar's contention is untenable.
Section 5 (i) of RA 9262, a form of psychological violence,[31] punishes the
act of "causing mental or emotional anguish, public ridicule or
humiliation to the woman or her child, including, but not limited to, repeated
verbal and emotional abuse, and denial of financial support or custody of
minor children or denial of access to the woman's child/children." Notably,
"[p]sychological violence is an element of violation of Section 5 (i) just like
the mental or emotional anguish caused on the victim. Psychological
violence is the means employed by the perpetrator, while mental or
emotional anguish is the effect caused to or the damage sustained by the
offended party. To establish psychological violence as an element of the
crime, it is necessary to show proof of commission of any of the acts
enumerated in Section 5 (i) or similar acts. And to establish mental or
emotional anguish, it is necessary to present the testimony of the victim as
such experiences are personal to this party."[32] Thus, in cases of support, it
must be first shown that the accused's denial thereof - which is, by itself,
already a form of economic abuse - further caused mental or emotional
anguish to the woman-victim and/or to their common child.
In this case, while the prosecution had established that Melgar indeed
deprived AAA and BBB of support, no evidence was presented to show that
such deprivation caused either AAA or BBB any mental or emotional
anguish. Therefore, Melgar cannot be convicted of violation of Section 5 (i)
of RA 9262. This notwithstanding - and taking into consideration the
variance doctrine which allows the conviction of an accused for a crime
proved which is different from but necessarily included in the crime
charged[33] - the courts a quo correctly convicted Melgar of violation of
Section 5 (e) of RA 9262 as the deprivation or denial of support, by itself and
even without the additional element of psychological violence, is already
specifically penalized therein.
As to the proper penalty to be imposed on Melgar, Section 6 of RA 9262
provides that violations of Section 5 (e) shall be punished by, inter alia,
prision correccional. Notably, while such crime is punishable by a special
penal law, the penalty provided therein is taken from the technical
nomenclature in the Revised Penal Code (RPC). In Quimvel v. People,[34] the
Court succinctly discussed the proper treatment of prescribed penalties found
in special penal laws vis-a-vis Act No. 4103,[35] otherwise known as the
Indetenninate Sentence Law, viz.:
Meanwhile, Sec. 1 of Act No. 4103, otherwise known as the Indeterminate
Sentence Law (ISL), provides that if the offense is ostensibly punished under
a special law, the minimum and maximum prison term of the indeterminate
sentence shall not be beyond what the special law prescribed. Be that as it
may, the Court had clarified in the landmark mling of People v. Simon [(G.R.
No. 93028, July 29, 1994, 239 SCRA 555)] that the situation is different
where although the offense is defined in a special law, the penalty therefor is
taken from the technical nomenclature in the RPC. Under such circumstance,
the legal effects under the system of penalties native to the Code would also
necessarily apply to the speciallaw.[36]
Otherwise stated, if the special penal law adopts the nomenclature of the
penalties under the RPC, the ascertainment of the indeterminate sentence will
be based on the rules applied for those crimes punishable under the RPC.[37]
Applying the foregoing to this case, the courts a quo correctly imposed on
Melgar the penalty of imprisonment for an indetenninate period of six (6)
months of arresto mayor, as minimum, to four (4) years and two (2) months
of prision correccional, as maximum. In addition, Melgar is also ordered to
pay a fine in the amount of P300,000.00, to undergo a mandatory psycholo
ical counselling or psychiatric treatment, and report compliance to the
court.[38]
WHEREFORE, the petition is DENIED. Accordingly, the Decision dated
August 28, 2015 and the Resolution dated February 10, 2016 of the Court of
Appeals in CA-G.R. CEB-CR No. 02211 finding petitioner Celso M.F.L.
Melgar GUILTY beyond reasonable doubt of violating Section 5 (e) of
Republic Act No. 9262, otherwise known as the "Anti-Violence Against
Women and Their Children Act of 2004," are hereby AFFIRMED with
MODIFICATION, sentencing petitioner Celso M.F.L. Melgar: (a) to suffer
the penalty of imprisonment for an indeterminate period of six (6) months of
arresto mayor, as minimum, to four (4) years and two (2) months of prision
correccional, as maximum; (b) to pay a fine in the amount of P300,000.00;
and (c) to undergo a mandatory psychological counselling or psychiatric
treatment and report compliance to the Regional Trial Court of Cebu City,
Branch 6.
G.R. No. 139930 June 26, 2012
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
EDUARDO M. COJUANGCO, JR., JUAN PONCE ENRILE, MARIA
CLARA LOBREGAT, JOSE ELEAZAR, JR., JOSE CONCEPCION,
ROLANDO P. DELA CUESTA, EMMANUEL M. ALMEDA,
HERMENEGILDO C. ZAYCO, NARCISO M. PINEDA, IÑAKI R.
MENDEZONA, DANILO S. URSUA, TEODORO D. REGALA,
VICTOR P. LAZATIN, ELEAZAR B. REYES, EDUARDO U.
ESCUETA, LEO J. PALMA, DOUGLAS LU YM, SIGFREDO
VELOSO and JAIME GANDIAGA, Respondents.
DECISION
ABAD, J.:
This case, which involves another attempt of the government to recover ill-
gotten wealth acquired during the Marcos era, resolves the issue of
prescription.
The Facts and the Case
On April 25, 1977 respondents Teodoro D. Regala, Victor P. Lazatin,
Eleazar B. Reyes, Eduardo U. Escueta and Leo J. Palma incorporated the
United Coconut Oil Mills, Inc. (UNICOM)1 with an authorized capital stock
of ₱100 million divided into one million shares with a par value of ₱100 per
share. The incorporators subscribed to 200,000 shares worth ₱20 million and
paid ₱5 million.
On September 26, 1978 UNICOM amended its capitalization by (1)
increasing its authorized capital stock to three million shares without par
value; (2) converting the original subscription of 200,000 to one million
shares without par value and deemed fully paid for and non-assessable by
applying the ₱5 million already paid; and (3) waiving and abandoning the
subscription receivables of ₱15 million.2
On August 29, 1979 the Board of Directors of the United Coconut Planters
Bank (UCPB) composed of respondents Eduardo M. Cojuangco, Jr., Juan
Ponce Enrile, Maria Clara L. Lobregat, Jose R. Eleazar, Jr., Jose C.
Concepcion, Rolando P. Dela Cuesta, Emmanuel M. Almeda, Hermenegildo
C. Zayco, Narciso M. Pineda, Iñaki R. Mendezona, and Danilo S. Ursua
approved Resolution 247-79 authorizing UCPB, the Administrator of the
Coconut Industry Investment Fund (CII Fund), to invest not more than ₱500
million from the fund in the equity of UNICOM for the benefit of the
coconut farmers.3
On September 4, 1979 UNICOM increased its authorized capital stock to 10
million shares without par value. The Certificate of Increase of Capital Stock
stated that the incorporators held one million shares without par value and
that UCPB subscribed to 4 million shares worth ₱495 million.4
On September 18, 1979 a new set of UNICOM directors, composed of
respondents Eduardo M. Cojuangco, Jr., Juan Ponce Enrile, Maria Clara L.
Lobregat, Jose R. Eleazar, Jr., Jose Concepcion, Emmanuel M. Almeda,
Iñaki R. Mendezona, Teodoro D. Regala, Douglas Lu Ym, Sigfredo Veloso,
and Jaime Gandiaga, approved another amendment to UNICOM’s
capitalization. This increased its authorized capital stock to one billion shares
divided into 500 million Class "A" voting common shares, 400 million Class
"B" voting common shares, and 100 million Class "C" non-voting common
shares, all with a par value of ₱1 per share. The paid-up subscriptions of 5
million shares without par value (consisting of one million shares for the
incorporators and 4 million shares for UCPB) were then converted to 500
million Class "A" voting common shares at the ratio of 100 Class "A" voting
common shares for every one without par value share.5
About 10 years later or on March 1, 1990 the Office of the Solicitor General
(OSG) filed a complaint for violation of Section 3(e) of Republic Act (R.A.)
30196 against respondents, the 1979 members of the UCPB board of
directors, before the Presidential Commission on Good Government
(PCGG). The OSG alleged that UCPB’s investment in UNICOM was
manifestly and grossly disadvantageous to the government since UNICOM
had a capitalization of only ₱5 million and it had no track record of
operation. In the process of conversion to voting common shares, the
government’s ₱495 million investment was reduced by ₱95 million which
was credited to UNICOM’s incorporators. The PCGG subsequently referred
the complaint to the Office of the Ombudsman in OMB-0-90-2810 in line
with the ruling in Cojuangco, Jr. v. Presidential Commission on Good
Government,7 which disqualified the PCGG from conducting the preliminary
investigation in the case.
About nine years later or on March 15, 1999 the Office of the Special
Prosecutor (OSP) issued a Memorandum,8 stating that although it found
sufficient basis to indict respondents for violation of Section 3(e) of R.A.
3019, the action has already prescribed. Respondents amended UNICOM’s
capitalization a third time on September 18, 1979, giving the incorporators
unwarranted benefits by increasing their 1 million shares to 100 million
shares without cost to them. But, since UNICOM filed its Certificate of
Filing of Amended Articles of Incorporation with the Securities and
Exchange Commission (SEC) on February 8, 1980, making public
respondents’ acts as board of directors, the period of prescription began to
run at that time and ended on February 8, 1990. Thus, the crime already
prescribed when the OSG filed the complaint with the PCGG for preliminary
investigation on March 1, 1990.
In a Memorandum9 dated May 14, 1999, the Office of the Ombudsman
approved the OSP’s recommendation for dismissal of the complaint. It
additionally ruled that UCPB’s subscription to the shares of stock of
UNICOM on September 18, 1979 was the proper point at which the
prescription of the action began to run since respondents’ act of investing
into UNICOM was consummated on that date. It could not be said that the
investment was a continuing act. The giving of undue benefit to the
incorporators prescribed 10 years later on September 18, 1989. Notably,
when the crime was committed in 1979 the prescriptive period for it had not
yet been amended. The original provision of Section 11 of R.A. 3019
provided for prescription of 10 years. Thus, the OSG filed its complaint out
of time.
The OSG filed a motion for reconsideration on the Office of the
Ombudsman’s action but the latter denied the same;10 hence, this petition.
Meanwhile, the Court ordered the dismissal of the case against respondent
Maria Clara L. Lobregat in view of her death on January 2, 2004.11
The Issue Presented
The pivotal issue in this case is whether or not respondents’ alleged violation
of Section 3(e) of R.A. 3019 already prescribed.
The Court’s Ruling
Preliminarily, the Court notes that what Republic of the Philippines
(petitioner) filed in this case is a petition for review on certiorari under Rule
45. But the remedy from an adverse resolution of the Office of the
Ombudsman in a preliminary investigation is a special civil action of
certiorari under Rule 65.12 Still, the Court will treat this petition as one filed
under Rule 65 since a reading of its contents reveals that petitioner imputes
grave abuse of discretion and reversible jurisdictional error to the
Ombudsman for dismissing the complaint. The Court has previously treated
differently labeled actions as special civil actions for certiorari under Rule 65
for acceptable reasons such as justice, equity, and fair play.13
As to the main issue, petitioner maintains that, although the charge against
respondents was for violation of the Anti-Graft and Corrupt Practices Act, its
prosecution relates to its efforts to recover the ill-gotten wealth of former
President Ferdinand Marcos and of his family and cronies. Section 15,
Article XI of the 1987 Constitution provides that the right of the State to
recover properties unlawfully acquired by public officials or employees is
not barred by prescription, laches, or estoppel.
But the Court has already settled in Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto14 that Section 15, Article XI of the
1987 Constitution applies only to civil actions for recovery of ill-gotten
wealth, not to criminal cases such as the complaint against respondents in
OMB-0-90-2810. Thus, the prosecution of offenses arising from, relating or
incident to, or involving ill-gotten wealth contemplated in Section 15, Article
XI of the 1987 Constitution may be barred by prescription.15
Notably, Section 11 of R.A. 3019 now provides that the offenses committed
under that law prescribes in 15 years. Prior to its amendment by Batas
Pambansa (B.P.) Blg. 195 on March 16, 1982, however, the prescriptive
period for offenses punishable under R.A. 3019 was only 10 years.16 Since
the acts complained of were committed before the enactment of B.P. 195, the
prescriptive period for such acts is 10 years as provided in Section 11 of R.A.
3019, as originally enacted.17
Now R.A. 3019 being a special law, the 10-year prescriptive period should
be computed in accordance with Section 2 of Act 3326,18 which provides:
Section 2. Prescription shall begin to run from the day of the commission
of the violation of the law, and if the same be not known at the time,
from the discovery thereof and the institution of judicial proceedings for
its investigation and punishment.
The above-mentioned section provides two rules for determining when the
prescriptive period shall begin to run: first, from the day of the commission
of the violation of the law, if such commission is known; and second, from
its discovery, if not then known, and the institution of judicial proceedings
for its investigation and punishment.19 Petitioner points out that, assuming
the offense charged is subject to prescription, the same began to run only
from the date it was discovered, namely, after the 1986 EDSA Revolution.
Thus, the charge could be filed as late as 1996. In the prosecution of cases of
behest loans, the Court reckoned the prescriptive period from the discovery
of such loans.1âwphi1 The reason for this is that the government, as
aggrieved party, could not have known that those loans existed when they
were made. Both parties to such loans supposedly conspired to perpetrate
fraud against the government. They could only have been discovered after
the 1986 EDSA Revolution when the people ousted President Marcos from
office. And, prior to that date, no person would have dared question the
legality or propriety of the loans.20
Those circumstances do not obtain in this case. For one thing, what is
questioned here is not the grant of behest loans that, by their nature, could be
concealed from the public eye by the simple expedient of suppressing their
documentations. What is rather involved here is UCPB’s investment in
UNICOM, which corporation is allegedly owned by respondent Cojuangco,
supposedly a Marcos crony. That investment does not, however, appear to
have been withheld from the curious or from those who were minded to
know like banks or competing businesses. Indeed, the OSG made no
allegation that respondent members of the board of directors of UCPB
connived with UNICOM to suppress public knowledge of the investment.
Besides, the transaction left the confines of the UCPB and UNICOM board
rooms when UNICOM applied with the SEC, the publicly-accessible
government clearing house for increases in corporate capitalization, to
accommodate UCPB’s investment. Changes in shareholdings are reflected in
the General Information Sheets that corporations have been mandated to
submit annually to the SEC. These are available to anyone upon request.
The OSG makes no allegation that the SEC denied public access to UCPB’s
investment in UNICOM during martial law at the President’s or anyone
else’s instance. Indeed, no accusation of this kind has ever been hurled at the
SEC with reference to corporate transactions of whatever kind during martial
law since even that regime had a stake in keeping intact the integrity of the
SEC as an instrumentality of investments in the Philippines.
And, granted that the feint-hearted might not have the courage to question the
UCPB investment into UNICOM during martial law, the second element—
that the action could not have been instituted during the 10-year period
because of martial law—does not apply to this case. The last day for filing
the action was, at the latest, on February 8, 1990, about four years after
martial law ended. Petitioner had known of the investment it now questions
for a sufficiently long time yet it let those four years of the remaining period
of prescription run its course before bringing the proper action.

Prescription of actions is a valued rule in all civilized states from the

beginning of organized society. It is a rule of fairness since, without it, the PANGILINAN
plaintiff can postpone the filing of his action to the point of depriving the N
defendant, through the passage of time, of access to defense witnesses who
would have died or left to live elsewhere, or to documents that would have
Promulgated:
been discarded or could no longer be located. Moreover, the memories of
witnesses are eroded by time. There is an absolute need in the interest of
fairness to bar actions that have taken the plaintiffs too long to file in court. June 13, 2012

Respondents claim that, in any event, the complaint against them failed to
show probable cause. They point out that, prior to the third amendment of
UNICOM’s capitalization, the stated value of the one million shares without
par value, which belonged to its incorporators, was ₱5 million. When these
shares were converted to 5 million shares with par value, the total par value
of such shares remained at ₱5 million. But, the action having prescribed,
there is no point in discussing the existence of probable cause against the
respondents for violation of Section 3(e) of R.A. 3019. WHEREFORE, the
Court DENIES the petition and AFFIRMS the Memorandum dated May 14,
1999 of the Office of the Ombudsman that dismissed on the ground of
prescription the subject charge of violation of Section 3(e) of R.A. 3019
against respondents Eduardo M. Cojuangco, Jr., Juan Ponce Enrile, Jose R.
Eleazar, Jr., Jose C. Concepcion, Rolando P. Dela Cuesta, Emmanuel M.
Almeda, Hermenegildo C. Zayco, Narciso M. Pineda, Iñaki R. Mendezona,
Danilo S. Ursua, Teodoro D. Regala, Victor P. Lazatin, Eleazar B. Reyes,
Eduardo U. Escueta, Leo J. Palma, Douglas Lu Ym, Sigfredo Veloso, and
Jaime Gandiaga.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
PEREZ, J.:
The Office of the Solicitor General (OSG) filed this petition for certiorari
under Rule 45 of the Rules of Court, on behalf of the Republic of the
Philippines, praying for the nullification and setting aside of the Decision of
the Court of Appeals (CA) in CA-G.R. SP No. 66936, entitled Ma. Theresa
Pangilinan vs. People of the Philippines and Private Complainant Virginia C.
Malolos.
The fallo of the assailed Decision reads:
WHEREFORE, the instant petition is GRANTED. Accordingly, the assailed
Decision of the Regional Trial Court of Quezon City, Branch 218, is
REVERSED and SET ASIDE and Criminal Cases Nos. 89152 and 89153
against petitioner Ma. Theresa Pangilinan are hereby ordered DISMISSED.

Culled from the record are the following undisputed facts:

On 16 September 1997, Virginia C. Malolos (private complainant) filed an

affidavit-complaint for estafa and violation of Batas Pambansa (BP) Blg. 22
against Ma. Theresa Pangilinan (respondent) with the Office of the City
Prosecutor of Quezon City. The complaint alleges that respondent issued
nine (9) checks with an aggregate amount of Nine Million Six Hundred
Fifty-Eight Thousand Five Hundred Ninety-Two Pesos (P9,658,592.00) in
favor of private complainant which were dishonored upon presentment for
payment.
On 5 December 1997, respondent filed a civil case for accounting, recovery
of commercial documents, enforceability and effectivity of contract and
specific performance against private complainant before the Regional Trial
Court (RTC) of Valenzuela City. This was docketed as Civil Case No. 1429-
V-97.
Five days thereafter or on 10 December 1997, respondent filed a Petition to
Suspend Proceedings on the Ground of Prejudicial Question before the
Office of the City Prosecutor of Quezon City, citing as basis the pendency of
the civil action she filed with the RTC of Valenzuela City.
On 2 March 1998, Assistant City Prosecutor Ruben Catubay recommended
the suspension of the criminal proceedings pending the outcome of the civil
action respondent filed against private complainant with the RTC of
Valenzuela City. The recommendation was approved by the City Prosecutor
of Quezon City.
Aggrieved, private complainant raised the matter before the Department of
Justice (DOJ).
On 5 January 1999, then Secretary of Justice Serafin P. Cuevas reversed the
resolution of the City Prosecutor of Quezon City and ordered the filing of
informations for violation of BP Blg. 22 against respondent in connection
with her issuance of City Trust Check No. 127219 in the amount of
P4,129,400.00 and RCBC Check No. 423773 in the amount of
P4,475,000.00, both checks totaling the amount of P8,604,000.00. The estafa
and violation of BP Blg. 22 charges involving the seven other checks
included in the affidavit-complaint filed on 16 September 1997 were,
however, dismissed.
Consequently, two counts for violation of BP Blg. 22, both dated 18
November 1999, were filed against respondent Ma.Theresa Pangilinan on 3
February 2000 before the Office of the Clerk of Court, Metropolitan Trial
Court (MeTC), Quezon City. These cases were raffled to MeTC, Branch
31on 7 June 2000.
On 17 June 2000, respondent filed an Omnibus Motion to Quash the
Information and to Defer the Issuance of Warrant of Arrest before MeTC,
Branch 31, Quezon City. She alleged that her criminal liability has been
extinguished by reason of prescription.
The presiding judge of MeTC, Branch 31, Quezon City granted the motion in
an Order dated 5 October 2000.
On 26 October 2000, private complainant filed a notice of appeal. The
criminal cases were raffled to RTC, Branch 218, Quezon City.
In a Decision dated 27 July 2001, the presiding judge of RTC, Branch 218,
Quezon City reversed the 5 October 2000 Order of the MeTC. The pertinent
portion of the decision reads:
xxx Inasmuch as the informations in this case were filed on 03 February
2000 with the Clerk of Court although received by the Court itself only on 07
June 2000, they are covered by the Rule as it was worded before the latest
amendment. The criminal action on two counts for violation of BP Blg. 22,
had, therefore, not yet prescribed when the same was filed with the court a
quo considering the appropriate complaint that started the proceedings
having been filed with the Office of the Prosecutor on 16 September 1997
yet.
WHEREFORE, the assailed Order dated 05 October 2000 is hereby
REVERSED AND SET ASIDE. The Court a quo is hereby directed to
proceed with the hearing of Criminal Cases Nos. 89152 and 89153.
Dissatisfied with the RTC Decision, respondent filed with the Supreme Court
a petition for review on certiorari under Rule 45 of the Rules of Court. This
was docketed as G.R. Nos. 149486-87.
In a resolution dated 24 September 2000, this Court referred the petition to
the CA for appropriate action.
On 26 October 2001, the CA gave due course to the petition by requiring
respondent and private complainant to comment on the petition.
In a Decision dated 12 March 2002, the CA reversed the 27 July 2001
Decision of RTC, Branch 218, Quezon City, thereby dismissing Criminal
Case Nos. 89152 and 89153 for the reason that the cases for violation of BP
Blg. 22 had already prescribed.
In reversing the RTC Decision, the appellate court ratiocinated that:
xxx this Court reckons the commencement of the period of prescription for
violations of Batas Pambansa Blg. 22 imputed to [respondent] sometime in
the latter part of 1995, as it was within this period that the [respondent] was
notified by the private [complainant] of the fact of dishonor of the subject
checks and, the five (5) days grace period granted by law had elapsed. The
private respondent then had, pursuant to Section 1 of Act 3326, as amended,
four years therefrom or until the latter part of 1999 to file her complaint or
information against the petitioner before the proper court.
The informations docketed as Criminal Cases Nos. 89152 and 89152(sic)
against the petitioner having been filed with the Metropolitan Trial Court of
Quezon City only on 03 February 2000, the said cases had therefore, clearly
prescribed.
xxx
Pursuant to Section 2 of Act 3326, as amended, prescription shall be
interrupted when proceedings are instituted against the guilty person.
In the case of Zaldivia vs. Reyes the Supreme Court held that the
proceedings referred to in Section 2 of Act No. 3326, as amended, are
judicial proceedings, which means the filing of the complaint or information
with the proper court. Otherwise stated, the running of the prescriptive period
shall be stayed on the date the case is actually filed in court and not on any
date before that, which is in consonance with Section 2 of Act 3326, as
amended.
While the aforesaid case involved a violation of a municipal ordinance, this
Court, considering that Section 2 of Act 3326, as amended, governs the
computation of the prescriptive period of both ordinances and special laws,
finds that the ruling of the Supreme Court in Zaldivia v. Reyes likewise
applies to special laws, such as Batas Pambansa Blg. 22.
The OSG sought relief to this Court in the instant petition for review.
According to the OSG, while it admits that Act No. 3326, as amended by Act
No. 3585 and further amended by Act No. 3763 dated 23 November 1930,
governs the period of prescription for violations of special laws, it is the
institution of criminal actions, whether filed with the court or with the Office
of the City Prosecutor, that interrupts the period of prescription of the offense
charged. It submits that the filing of the complaint-affidavit by private
complainant Virginia C. Malolos on 16 September 1997 with the Office of
the City Prosecutor of Quezon City effectively interrupted the running of the
prescriptive period of the subject BP Blg. 22 cases.
Petitioner further submits that the CA erred in its decision when it relied on
the doctrine laid down by this Court in the case of Zaldivia v. Reyes, Jr. that
the filing of the complaint with the Office of the City Prosecutor is not the
judicial proceeding that could have interrupted the period of prescription. In
relying on Zaldivia, the CA allegedly failed to consider the subsequent
jurisprudence superseding the aforesaid ruling.
Petitioner contends that in a catena of cases, the Supreme Court ruled that the
filing of a complaint with the Fiscals Office for preliminary investigation
suspends the running of the prescriptive period. It therefore concluded that
the filing of the informations with the MeTC of Quezon City on 3 February
2000 was still within the allowable period of four years within which to file
the criminal cases for violation of BP Blg. 22 in accordance with Act No.
3326, as amended.
In her comment-opposition dated 26 July 2002, respondent avers that the
petition of the OSG should be dismissed outright for its failure to comply
with the mandatory requirements on the submission of a certified true copy
of the decision of the CA and the required proof of service. Such procedural
lapses are allegedly fatal to the cause of the petitioner.
Respondent reiterates the ruling of the CA that the filing of the complaint
before the City Prosecutors Office did not interrupt the running of the
prescriptive period considering that the offense charged is a violation of a
special law.
Respondent contends that the arguments advanced by petitioner are anchored
on erroneous premises. She claims that the cases relied upon by petitioner
involved felonies punishable under the Revised Penal Code and are therefore
covered by Article 91 of the Revised Penal Code (RPC) and Section 1, Rule
110 of the Revised Rules on Criminal Procedure. Respondent pointed out
that the crime imputed against her is for violation of BP Blg. 22, which is
indisputably a special law and as such, is governed by Act No. 3326, as
amended. She submits that a distinction should thus be made between
offenses covered by municipal ordinances or special laws, as in this case, and
offenses covered by the RPC.
The key issue raised in this petition is whether the filing of the affidavit-
complaint for estafa and violation of BP Blg. 22 against respondent with the
Office of the City Prosecutor of Quezon City on 16 September 1997
interrupted the period of prescription of such offense.
We find merit in this petition.
Initially, we see that the respondents claim that the OSG failed to attach to
the petition a duplicate original or certified true copy of the 12 March 2002
decision of the CA and the required proof of service is refuted by the record.
A perusal of the record reveals that attached to the original copy of the
petition is a certified true copy of the CA decision. It was also observed that
annexed to the petition was the proof of service undertaken by the Docket
Division of the OSG.
With regard to the main issue of the petition, we find that the CA reversively
erred in ruling that the offense committed by respondent had already
prescribed. Indeed, Act No. 3326 entitled An Act to Establish Prescription
for Violations of Special Acts and Municipal Ordinances and to Provide
When Prescription Shall Begin, as amended, is the law applicable to BP Blg.
22 cases. Appositely, the law reads:
SECTION 1. Violations penalized by special acts shall, unless otherwise
provided in such acts, prescribe in accordance with the following rules: (a)
xxx; (b) after four years for those punished by imprisonment for more than
one month, but less than two years; (c) xxx.
SECTION 2. Prescription shall begin to run from the day of the commission
of the violation of the law, and if the same be not known at the time, from the
discovery thereof and the institution of judicial proceedings for its
investigation and punishment.
The prescription shall be interrupted when proceedings are instituted against
the guilty person, and shall begin to run again if the proceedings are
dismissed for reasons not constituting jeopardy.
Since BP Blg. 22 is a special law that imposes a penalty of imprisonment of
not less than thirty (30) days but not more than one year or by a fine for its
violation, it therefor prescribes in four (4) years in accordance with the
aforecited law. The running of the prescriptive period, however, should be
tolled upon the institution of proceedings against the guilty person.
In the old but oft-cited case of People v. Olarte, this Court ruled that the
filing of the complaint in the Municipal Court even if it be merely for
purposes of preliminary examination or investigation, should, and thus,
interrupt the period of prescription of the criminal responsibility, even if the
court where the complaint or information is filed cannot try the case on the
merits. This ruling was broadened by the Court in the case of Francisco,
et.al. v. Court of Appeals, et. al. when it held that the filing of the complaint
with the Fiscals Office also suspends the running of the prescriptive period of
a criminal offense.
Respondents contention that a different rule should be applied to cases
involving special laws is bereft of merit. There is no more distinction
between cases under the RPC and those covered by special laws with respect
to the interruption of the period of prescription. The ruling in Zaldivia v.
Reyes, Jr. is not controlling in special laws. In Llenes v. Dicdican, Ingco, et
al. v. Sandiganbayan, Brillante v. CA, and Sanrio Company Limited v. Lim,
cases involving special laws, this Court held that the institution of
proceedings for preliminary investigation against the accused interrupts the
period of prescription. In Securities and Exchange Commission v. Interport
Resources Corporation, et. al., the Court even ruled that investigations
conducted by the Securities and Exchange Commission for violations of the
Revised Securities Act and the Securities Regulations Code effectively
interrupts the prescription period because it is equivalent to the preliminary
investigation conducted by the DOJ in criminal cases.
In fact, in the case of Panaguiton, Jr. v. Department of Justice, which is in all
fours with the instant case, this Court categorically ruled that commencement
of the proceedings for the prosecution of the accused before the Office of the
City Prosecutor effectively interrupted the prescriptive period for the
offenses they had been charged under BP Blg. 22. Aggrieved parties,
especially those who do not sleep on their rights and actively pursue their
causes, should not be allowed to suffer unnecessarily further simply because
of circumstances beyond their control, like the accuseds delaying tactics or
the delay and inefficiency of the investigating agencies.
We follow the factual finding of the CA that sometime in the latter part of
1995 is the reckoning date of the commencement of presumption for
violations of BP Blg. 22, such being the period within which herein
respondent was notified by private complainant of the fact of dishonor of the
checks and the five-day grace period granted by law elapsed.
The affidavit-complaints for the violations were filed against respondent on
16 September 1997. The cases reached the MeTC of Quezon City only on 13
February 2000 because in the meanwhile, respondent filed a civil case for
accounting followed by a petition before the City Prosecutor for suspension
of proceedings on the ground of prejudicial question. The matter was raised
before the Secretary of Justice after the City Prosecutor approved the petition
to suspend proceedings. It was only after the Secretary of Justice so ordered
that the informations for the violation of BP Blg. 22 were filed with the
MeTC of Quezon City.
Clearly, it was respondents own motion for the suspension of the criminal
proceedings, which motion she predicated on her civil case for accounting,
that caused the filing in court of the 1997 initiated proceedings only in 2000.
As laid down in Olarte, it is unjust to deprive the injured party of the right to
obtain vindication on account of delays that are not under his control. The
only thing the offended must do to initiate the prosecution of the offender is
to file the requisite
G.R. No. 165276 November 25, 2009
JUDGE ADORACION G. ANGELES, Petitioner,
vs.
HON. MANUEL B. GAITE, Acting Deputy Executive Secretary for
Legal Affairs; HON. WALDO Q. FLORES, Senior Deputy Executive
Secretary, Office of the President; Former DOJ SECRETARY
HERNANDO B. PEREZ (now substituted by the Incumbent DOJ
Secretary RAUL GONZALES); Former PROV. PROS. AMANDO C.
VICENTE (now substituted by the Incumbent PROV. PROS.
ALFREDO L. GERONIMO); PROS. BENJAMIN R. CARAIG,
Malolos, Bulacan; and MICHAEL T. VISTAN, Respondents.
DECISION
PERALTA, J.:
Before this Court is a Petition for Review,1 under Rule 43 of the 1997 Rules
of Civil Procedure, assailing the February 13, 2004 Decision2 and September
16, 2004 Resolution3 of the Court of Appeals (CA) in CA-G.R. SP No.
76019.
The facts of the case, as alleged by petitioner and likewise adopted by the
CA, are as follows:
Petitioner [Judge Adoracion G. Angeles] was the foster mother of her
fourteen (14) year-old grandniece Maria Mercedes Vistan who, in April 1990
was entrusted to the care of the former by the girl’s grandmother and
petitioner’s sister Leonila Angeles Vda. de Vistan when the child was
orphaned at the tender age of four.
Petitioner provided the child with love and care, catered to her needs, sent
her to a good school and attended to her general well-being for nine (9)
memorable and happy years. The child also reciprocated the affections of her
foster mother and wrote the latter letters.
Petitioner’s love for the child extended to her siblings, particularly her half-
brother respondent Michael Vistan, a former drug-addict, and the latter’s
family who were regular beneficiaries of the undersigned’s generosity.
Michael would frequently run to the undersigned for his variety of needs
ranging from day to day subsistence to the medical and hospital expenses of
his children.
In the evening of 11 April 1999, Michael Vistan had a falling out with
petitioner for his failure to do a very important errand for which he was
severely reprimanded over the phone. He was told that from then on, no
assistance of any kind would be extended to him and that he was no longer
welcome at petitioner’s residence.
Feeling thwarted, he, in conspiracy with his co-horts (sic), retaliated on 12
April 1999 by inducing his half-sister, Maria Mercedes, to leave petitioner’s
custody. Michael used to have free access to the undersigned’s house and he
took the girl away while petitioner was at her office.
In the evening of that day, 12 April 1999, petitioner, accompanied by her
friend Ines Francisco, sought Michael Vistan in his residence in Sta. Cruz,
Guiguinto, Bulacan to confront him about the whereabouts of his half-sister.
He disclosed that he brought the girl to the residence of her maternal relatives
in Sta. Monica, Hagonoy, Bulacan. Petitioner then reported the matter and
requested for the assistance of the 303rd Criminal Investigation and
Detective Group Field Office in Malolos, Bulacan to locate the girl.
Consequently, PO3 Paquito M. Guillermo and Ruben Fred Ramirez
accompanied petitioner and her friend to Hagonoy, Bulacan where they
coordinated with police officers from the said place. The group failed to find
the girl. Instead, they were given the run-around as the spouses Ruben and
Lourdes Tolentino and spouses Gabriel and Olympia Nazareno misled them
with the false information that Maria Mercedes was already brought by their
brother Carmelito Guevarra and the latter’s wife Camilia to Casiguran,
Quezon Province.
On 13 April 1999, petitioner filed a complaint for Kidnapping under Article
271 of the Revised Penal Code (Inducing a Minor to Abandon His Home)
against Michael Vistan, the Tolentino spouses, the Nazareno spouses and
Guevarra spouses, all maternal relatives of Maria Mercedes Vistan.
Warrants of arrest were subsequently issued against them and to evade the
long arm of the law, Michael Vistan went into hiding. He dragged along with
him his half-sister Maria Mercedes.
From 12 April 1999 to 16 April 1999, Michael Vistan, with his little sister in
tow, shuttled back and forth from Guiguinto to Hagonoy, Bulacan as well as
in Manila and Quezon City, living the life of a fugitive from justice. He
eventually brought the girl to ABS-CBN in Quezon City where he made her
recite a concocted tale of child abuse against herein petitioner hoping that
this would compel the latter to withdraw the kidnapping charge which she
earlier filed.
In the early morning of 16 April 1999, Michael Vistan brought Maria
Mercedes to the DSWD after he felt himself cornered by the police dragnet
laid for him.
Prompted by his overwhelming desire to retaliate against petitioner and get
himself off the hook from the kidnapping charge, Michael Vistan had
deliberately, maliciously, selfishly and insensitively caused undue physical,
emotional and psychological sufferings to Maria Mercedes Vistan, all of
which were greatly prejudicial to her well-being and development.
Thus, on 1 December 1999, petitioner filed a complaint against Michael
Vistan before the Office of the Provincial Prosecutor in Malolos, Bulacan for
five counts of Violation of Section 10 (a), Article VI of RA 7610, otherwise
known as the Child Abuse Act, and for four counts of Violation of Sec. 1 (e)
of PD 1829. She likewise filed a complaint for Libel against Maria Cristina
Vistan, aunt of Michael and Maria Mercedes.
In a Resolution dated March 3, 2000, Investigating Prosecutor Benjamin R.
Caraig recommended upheld (sic) the charge of Violation of RA 7160 but
recommended that only one Information be filed against Michael Vistan. The
charge of Violation of PD 1829 was dismissed. Nonetheless, the Resolution
to uphold the petitioner’s complaint against Maria Cristina Vistan must (sic)
remained.
However, Provincial Prosecutor Amando C. Vicente denied the
recommendation of the Investigating Prosecutor that Michael Vistan be
indicted for Violation RA 7610. He also approved the recommendation for
the dismissal of the charge for Violation of PD 1829.
On 14 April 2000, petitioner filed a Motion for Partial Reconsideration. This
was denied in a Resolution dated 28 April 2000.
Petitioner then filed a Petition for Review before the Department of Justice
on 18 May 2000. She also filed a Supplement thereto on 19 May 2000.
In a Resolution dated 5 April 2001, Undersecretary Manuel A.J. Teehankee,
acting for the Secretary of Justice, denied the petition for review. The
undersigned’s Motion for Reconsideration filed on 25 April 2001 was
likewise denied by then DOJ Secretary Hernando B. Perez in a Resolution
dated 15 October 2001.
On 26 November 2001, the undersigned filed a Petition for Review before
the Office of President. The petition was dismissed and the motion for
reconsideration was denied before said forum anchored on Memorandum
Circular No. 58 which bars an appeal or a petition for review of
decisions/orders/resolutions of the Secretary of Justice except those
involving offenses punishable by reclusion perpetua or death.4
On March 18, 2003, petitioner filed a petition for review5 before the CA
assailing the Order of the Office of President. Petitioner argued that the
Office of the President erred in not addressing the merits of her petition by
relying on Memorandum Circular No. 58, series of 1993. Petitioner assailed
the constitutionality of the memorandum circular, specifically arguing that
Memorandum Circular No. 58 is an invalid regulation because it diminishes
the power of control of the President and bestows upon the Secretary of
Justice, a subordinate officer, almost unfettered power.6 Moreover, petitioner
contended that the Department of Justice (DOJ) erred in dismissing the
complaint against respondent Michael Vistan for violations of Presidential
Decree No. 18297 (PD No. 1829) and for violation of Republic Act No.
76108 (RA No. 7610).9
On February 13, 2004, the CA rendered a Decision, dismissing the petition,
the dispositive portion of which reads:
WHEREFORE, premises considered, the instant petition is hereby
DISMISSED for lack of merit.10
The CA affirmed the position of the Solicitor General (OSG) to apply the
doctrine of qualified political agency, to wit:
When the President herself did not revoke the order issued by respondent
Acting Deputy Executive Secretary for Legal Affairs nor saw the necessity to
exempt petitioner’s case from the application of Memorandum Circular No.
58, the act of the latter is deemed to be an act of the President herself.11
Moreover, the CA ruled that the facts of the case as portrayed by petitioner
do not warrant the filing of a separate Information for violation of Section
1(e) of PD No. 1829.12 Lastly, the CA ruled that the DOJ did not err when it
dismissed the complaint for violation for RA No. 7610 as the same was not
attended by grave abuse of discretion.
Petitioner filed a Motion for Reconsideration,13 which was, however, denied
by the CA in a Resolution dated September 16, 2004.
Hence, herein petition, with petitioner raising the following assignment of
errors, to wit:
1. THE HONORABLE COURT OF APPEALS ERRED IN
UPHOLDING THE RELIANCE OF THE OFFICE OF THE
PRESIDENT IN THE PROVISIONS OF MEMORANDUM
CIRCULAR NO. 58.
2. THE HONORABLE COURT OF APPEALS ERRED IN
UPHOLDING THE DISMISSAL BY THE DOJ SECRETARY OF
THE COMPLAINT OF VIOLATION OF SECTION 1(E). P.D.
1829 (OBSTRUCTION OF JUSTICE) AGAINST PRIVATE
RESPONDENT MICHAEL VISTAN.
3. THE HONORABLE COURT OF APPEALS ERRED IN
UPHOLDING THE DISMISSAL OF THE COMPLAINT OF
VIOLATION OF R.A. 7610 (CHILD ABUSE) AGAINST
PRIVATE RESPONDENT MICHAEL VISTAN.14
The petition is without merit.
Petitioner's arguments have no leg to stand on. They are mere suppositions
without any basis in law. Petitioner argues in the main that Memorandum
Circular No. 58 is an invalid regulation, because it diminishes the power of
control of the President and bestows upon the Secretary of Justice, a
subordinate officer, almost unfettered power.15 This argument is absurd. The
President's act of delegating authority to the Secretary of Justice by virtue of
said Memorandum Circular is well within the purview of the doctrine of
qualified political agency, long been established in our jurisdiction.
Under this doctrine, which primarily recognizes the establishment of a single
executive, "all executive and administrative organizations are adjuncts of the
Executive Department; the heads of the various executive departments are
assistants and agents of the Chief Executive; and, except in cases where the
Chief Executive is required by the Constitution or law to act in person or the
exigencies of the situation demand that he act personally, the multifarious
executive and administrative functions of the Chief Executive are performed
by and through the executive departments, and the acts of the secretaries of
such departments, performed and promulgated in the regular course of
business, are, unless disapproved or reprobated by the Chief Executive,
presumptively the acts of the Chief Executive."16 The CA cannot be deemed
to have committed any error in upholding the Office of the President's
reliance on the Memorandum Circular as it merely interpreted and applied
the law as it should be.
As early as 1939, in Villena v. Secretary of Interior,17 this Court has
recognized and adopted from American jurisprudence this doctrine of
qualified political agency, to wit:
x x x With reference to the Executive Department of the government, there is
one purpose which is crystal-clear and is readily visible without the
projection of judicial searchlight, and that is, the establishment of a single,
not plural, Executive. The first section of Article VII of the Constitution,
dealing with the Executive Department, begins with the enunciation of the
principle that "The executive power shall be vested in a President of the
Philippines." This means that the President of the Philippines is the
Executive of the Government of the Philippines, and no other. The heads of
the executive departments occupy political positions and hold office in an
advisory capacity, and, in the language of Thomas Jefferson, "should be of
the President's bosom confidence" (7 Writings, Ford ed., 498), and, in the
language of Attorney-General Cushing (7 Op., Attorney-General, 453), "are
subject to the direction of the President." Without minimizing the importance
of the heads of the various departments, their personality is in reality but the
projection of that of the President. Stated otherwise, and as forcibly
characterized by Chief Justice Taft of the Supreme Court of the United
States, "each head of a department is, and must be, the President's alter ego in
the matters of that department where the President is required by law to
exercise authority" (Myers v. United States, 47 Sup. Ct. Rep., 21 at 30; 272
U.S., 52 at 133; 71 Law. ed., 160).18
Memorandum Circular No. 58,19 promulgated by the Office of the President
on June 30, 1993 reads:
In the interest of the speedy administration of justice, the guidelines
enunciated in Memorandum Circular No. 1266 (4 November 1983) on the
review by the Office of the President of resolutions/orders/decisions issued
by the Secretary of Justice concerning preliminary investigations of criminal
cases are reiterated and clarified.
No appeal from or petition for review of decisions/orders/resolutions of
the Secretary of Justice on preliminary investigations of criminal cases
shall be entertained by the Office of the President, except those involving
offenses punishable by reclusion perpetua to death x x x.
Henceforth, if an appeal or petition for review does not clearly fall within the
jurisdiction of the Office of the President, as set forth in the immediately
preceding paragraph, it shall be dismissed outright x x x.
It is quite evident from the foregoing that the President himself set the limits
of his power to review decisions/orders/resolutions of the Secretary of Justice
in order to expedite the disposition of cases. Petitioner's argument that the
Memorandum Circular unduly expands the power of the Secretary of Justice
to the extent of rendering even the Chief Executive helpless to rectify
whatever errors or abuses the former may commit in the exercise of his
discretion20 is purely speculative to say the least. Petitioner cannot second-
guess the President's power and the President's own judgment to delegate
whatever it is he deems necessary to delegate in order to achieve proper and
speedy administration of justice, especially that such delegation is upon a
cabinet secretary – his own alter ego.
Nonetheless, the power of the President to delegate is not without limits. No
less than the Constitution provides for restrictions. Justice Jose P. Laurel, in
his ponencia in Villena, makes this clear:
x x x Withal, at first blush, the argument of ratification may seem plausible
under the circumstances, it should be observed that there are certain
prerogative acts which, by their very nature, cannot be validated by
subsequent approval or ratification by the President. There are certain
constitutional powers and prerogatives of the Chief Executive of the Nation
which must be exercised by him in person and no amount of approval or
ratification will validate the exercise of any of those powers by any other
person. Such, for instance, is his power to suspend the writ of habeas corpus
and proclaim martial law (par. 3, sec. 11, Art. VII) and the exercise by him of
the benign prerogative of mercy (par. 6, sec. 11, idem).21
These restrictions hold true to this day as they remain embodied in our
fundamental law. There are certain presidential powers which arise out of
exceptional circumstances, and if exercised, would involve the suspension of
fundamental freedoms, or at least call for the supersedence of executive
prerogatives over those exercised by co-equal branches of government.22 The
declaration of martial law, the suspension of the writ of habeas corpus, and
the exercise of the pardoning power, notwithstanding the judicial
determination of guilt of the accused, all fall within this special class that
demands the exclusive exercise by the President of the constitutionally
vested power.23 The list is by no means exclusive, but there must be a
showing that the executive power in question is of similar gravitas and
exceptional import.24
In the case at bar, the power of the President to review the Decision of the
Secretary of Justice dealing with the preliminary investigation of cases
cannot be considered as falling within the same exceptional class which
cannot be delegated. Besides, the President has not fully abdicated his power
of control as Memorandum Circular No. 58 allows an appeal if the imposable
penalty is reclusion perpetua or higher. Certainly, it would be unreasonable
to impose upon the President the task of reviewing all preliminary
investigations decided by the Secretary of Justice. To do so will unduly
hamper the other important duties of the President by having to scrutinize
each and every decision of the Secretary of Justice notwithstanding the
latter’s expertise in said matter.
In Constantino, Jr. v. Cuisia,25 this Court discussed the predicament of
imposing upon the President duties which ordinarily should be delegated to a
cabinet member, to wit:
The evident exigency of having the Secretary of Finance implement the
decision of the President to execute the debt-relief contracts is made manifest
by the fact that the process of establishing and executing a strategy for
managing the government’s debt is deep within the realm of the expertise of
the Department of Finance, primed as it is to raise the required amount of
funding, achieve its risk and cost objectives, and meet any other sovereign
debt management goals.
If, as petitioners would have it, the President were to personally exercise
every aspect of the foreign borrowing power, he/she would have to pause
from running the country long enough to focus on a welter of time-
consuming detailed activities–the propriety of incurring/guaranteeing loans,
studying and choosing among the many methods that may be taken toward
this end, meeting countless times with creditor representatives to negotiate,
obtaining the concurrence of the Monetary Board, explaining and defending
the negotiated deal to the public, and more often than not, flying to the
agreed place of execution to sign the documents. This sort of constitutional
interpretation would negate the very existence of cabinet positions and
the respective expertise which the holders thereof are accorded and
would unduly hamper the President’s effectivity in running the
government.26
Based on the foregoing considerations, this Court cannot subscribe to
petitioner’s position asking this Court to allow her to appeal to the Office of
the President, notwithstanding that the crimes for which she charges
respondent are not punishable by reclusion perpetua to death.
It must be remembered that under the Administrative Code of 1987 (EO No.
292), the Department of Justice, under the leadership of the Secretary of
Justice, is the government’s principal law agency. As such, the Department
serves as the government’s prosecution arm and administers the
government’s criminal justice system by investigating crimes, prosecuting
offenders and overseeing the correctional system, which are deep within the
realm of its expertise.27 These are known functions of the Department of
Justice, which is under the executive branch and, thus, within the Chief
Executive's power of control.
Petitioner’s contention that Memorandum Circular No. 58 violates both the
Constitution and Section 1, Chapter 1, Book III of EO No. 292, for depriving
the President of his power of control over the executive departments deserves
scant consideration. In the first place, Memorandum Circular No. 58 was
promulgated by the Office of the President and it is settled that the acts of the
secretaries of such departments, performed and promulgated in the regular
course of business are, unless disapproved or reprobated by the Chief
Executive, presumptively the acts of the Chief Executive.28 Memorandum
Circular No. 58 has not been reprobated by the President; therefore, it goes
without saying that the said Memorandum Circular has the approval of the
President.
Anent the second ground raised by petitioner, the same is without merit.
Petitioner argues that the evasion of arrest constitutes a violation of Section
1(e) of PD No. 1829, the same is quoted hereunder as follows:
(e) Delaying the prosecution of criminal case by obstructing the service of
processes or court orders or disturbing proceedings in the fiscals' offices in
Tanodbayan, or in the courts. x x x
Specifically, petitioner contends that respondent's act of going underground
obstructed the service of a court process, particularly the warrant of arrest.29
This Court does not agree.
There is no jurisprudence that would support the stance taken by petitioner.
Notwithstanding petitioner's vehement objection in the manner the CA had
disposed of the said issue, this Court agrees with the same. The CA ruled that
the position taken by petitioner was contrary to the spirit of the law on
"obstruction of justice," in the wise:
x x x It is a surprise to hear from petitioner who is a member of the bench to
argue that unserved warrants are tantamount to another violation of the law
re: "obstruction of justice." Petitioner is like saying that every accused in a
criminal case is committing another offense of "obstruction of justice" if and
when the warrant of arrest issued for the former offense/ charge is unserved
during its life or returned unserved after its life – and that the accused should
be charged therewith re: "obstruction of justice." What if the warrant of arrest
for the latter charge ("obstruction of justice") is again unserved during its life
or returned unserved? To follow the line of thinking of petitioner, another or
a second charge of "obstruction of justice" should be filed against the
accused. And if the warrant of arrest issued on this second charge is not
served, again, a third charge of "obstruction of justice" is warranted or should
be filed against the accused. Thus, petitioner is effectively saying that the
number of charges for "obstruction of justice" is counting and/or countless,
unless and until the accused is either arrested or voluntarily surrendered. We,
therefore, find the position taken by petitioner as contrary to the intent and
spirit of the law on "obstruction of justice." x x x30
As correctly observed by the CA, the facts of the case, as portrayed by
petitioner, do not warrant the filing of a separate information for violation of
Section 1(e) of PD No. 1829. This Court agrees with the CA that based on
the evidence presented by petitioner, the failure on the part of the arresting
officer/s to arrest the person of the accused makes the latter a fugitive from
justice and is not equivalent to a commission of another offense of
obstruction of justice.31
Petitioner, however, vehemently argues that the law does not explicitly
provide that it is applicable only to another person and not to the offender
himself.32 Petitioner thus contends that where the "law does not distinguish,
we should not distinguish."33
Again, this Court does not agree.
Petitioner conveniently forgets that it is a basic rule of statutory construction
that penal statutes are to be liberally construed in favor of the accused.34
Courts must not bring cases within the provision of a law which are not
clearly embraced by it. No act can be pronounced criminal which is not
clearly made so by statute; so, too, no person who is not clearly within the
terms of a statute can be brought within them.35 Any reasonable doubt must
be resolved in favor of the accused.36
Indeed, if the law is not explicit that it is applicable only to another person
and not the offender himself, this Court must resolve the same in favor of the
accused. In any case, this Court agrees with the discussion of the CA,
however sarcastic it may be, is nevertheless correct given the circumstances
of the case at bar.
Lastly, petitioner argues that the CA erred in upholding the dismissal of the
complaint against respondent for violation of Section 10 (a), Article VI, of
RA No. 7610. Said Section reads:
Any person who shall commit any other act of child abuse, cruelty or
exploitation or responsible for other conditions prejudicial to the child's
development, including those covered by Article 59 of PD No. 603, as
amended, but not covered by the Revised Penal Code, as amended, shall
suffer the penalty of prision mayor in its minimum period.
On this note, the Provincial Prosecutor in disapproving the recommendation
of the Investigating Prosecutor to file the information for violation of Section
10(a), Article VI, of RA No. 7610, gave the following reasons:
APPROVED for: (1) x x x (2) x x x The recommendation to file an
information for viol. of Sec. 10 (a) RA # 7610 vs. M. Vistan is hereby
denied. The affidavit of Ma. Mercedes Vistan, the minor involved, is to the
effect that she found happiness and peace of mind away from the
complainant and in the company of her relatives, including her brother,
respondent Michael Vistan. How can her joining the brother be prejudicial to
her with such statement?37
Said finding was affirmed by the Secretary of Justice.
This Court is guided by First Women's Credit Corporation and Shig
Katamaya v. Hon. Hernando B. Perez et. al,38 where this Court emphasized
the executive nature of preliminary investigations, to wit:
x x x the determination of probable cause for the filing of an information in
court is an executive function, one that properly pertains at the first instance
to the public prosecutor and, ultimately, to the Secretary of Justice. For this
reason, the Court considers it sound judicial policy to refrain from interfering
in the conduct of preliminary investigations and to leave the Department of
Justice ample latitude of discretion in the determination of what constitutes
sufficient evidence to establish probable cause for the prosecution of
supposed offenders. Consistent with this policy, courts do not reverse the
Secretary of Justice’s findings and conclusions on the matter of probable
cause except in clear cases of grave abuse of discretion. Thus, petitioners will
prevail only if they can show that the CA erred in not holding that public
respondent’s resolutions were tainted with grave abuse of
discretion.391avvphi1
Were the acts of the Provincial Prosecutor or the Secretary of Justice tainted
with grave abuse of discretion?
By grave abuse of discretion is meant such capricious and whimsical exercise
of judgment which is equivalent to an excess or lack of jurisdiction. The
abuse of discretion must be so patent and gross as to amount to an evasion of
a positive duty or a virtual refusal to perform a duty enjoined by law, or to
act not at all in contemplation of law, as where the power is exercised in an
arbitrary and despotic manner by reason of passion or hostility.40

Based on the foregoing, this Court finds that the provincial prosecutor and
the Secretary of Justice did not act with grave abuse of discretion, as their
conclusion of lack of probable cause was based on the affidavit of the alleged
victim herself. The reasons for the cause of action were stated clearly and
sufficiently. Was their reliance on the victim's affidavit constitutive of grave
abuse of discretion? This Court does not think so.

While petitioner would argue that the victim was "brainwashed" by

respondent into executing the affidavit,41 this Court finds no conclusive proof
thereof. Besides, even if their reliance on the victim’s affidavit may be
wrong, it is elementary that not every erroneous conclusion of fact is an
abuse of discretion.42 As such, this Court will not interfere with the said
findings of the Provincial Prosecutor and the Secretary of Justice absent a
clear showing of grave abuse of discretion. The determination of probable
cause during a preliminary investigation is a function that belongs to the
prosecutor and ultimately on the Secretary of Justice; it is an executive
function, the correctness of the exercise of which is a matter that this Court
will not pass upon absent a showing of grave abuse of discretion.

WHEREFORE, premises considered, the February 13, 2004 Decision and

September 16, 2004 Resolution of the Court of Appeals in CA-G.R. SP No. [G.R. No. 131492. September 29, 2000]
76019 are hereby AFFIRMED.
ROGER POSADAS, ROSARIO TORRES-YU, and MARICHU
SO ORDERED. LAMBINO, petitioners, vs. THE HON. OMBUDSMAN, THE
SPECIAL PROSECUTOR, and ORLANDO V. DIZON, respondents.

DECISION

MENDOZA, J.:

Dennis Venturina, a member of Sigma Rho at the University of the

Philippines, was killed in a rumble between his fraternity and another
fraternity on December 8, 1994. In a letter dated December 11, 1994,
petitioner Roger Posadas, then Chancellor of U.P. Diliman in Quezon
City, asked the Director of the National Bureau of Investigation for
assistance in determining the persons responsible for the crime. In
response to the request, respondent Orlando V. Dizon, Chief of the
Special Operations Group of the NBI, and his men went to U.P. on
December 12 and, on the basis of the supposed positive identification
of two alleged eyewitnesses, Leandro Lachica and Cesar Mangrobang,
Jr., attempted to arrest Francis Carlo Taparan and Raymundo Narag,
officers/members of the Scintilla Juris Fraternity, as suspects in the
killing of Venturina. It appears that the two suspects had come that day
to the U.P. Police Station for a peace talk between their fraternity and
the Sigma Rho Fraternity.
Petitioners Posadas, Marichu Lambino, and Rosario Torres-Yu, also of
U.P., and a certain Atty. Villamor, counsel for the suspects, objected
on the ground that the NBI did not have warrants of arrest with them.
Posadas and Atty. Villamor promised to take the suspects to the NBI
Office the next day. As a result of their intervention, Taparan and
Narag were not arrested by the NBI agents on that day.i[1] However,
criminal charges were filed later against the two student suspects.ii[2]
Dizon then filed a complaint in the Office of the Special Prosecutor,
charging petitioners Posadas, Torres-Yu, Lambino, Col. Eduardo
Bentain, Chief of the Security Force of the U.P. Police, and Atty.
Villamor with violation of P.D. 1829,iii[3] which makes it unlawful
for anyone to obstruct the apprehension and prosecution of criminal
offenders.
On May 18, 1995, an informationiv[4] was filed against them, alleging
that:
That on or about December 12, 1994 and for sometime prior or
subsequent thereto, in Quezon City, Philippines, and within the
jurisdiction of this Honorable Court, above-named accused, namely:
ROGER POSADAS, Chancellor; ROSARIO YU - Vice Chancellor;
ATTY. MARICHU LAMBINO - Asst. Legal Counsel; and COL.
EDUARDO BENTAIN - Chief, Security Force, all of the University
of the Philippines, Diliman, Quezon City, all public officers, while in
the performance of their respective official functions, taking advantage
of their official duties and committing the crime in relation to their
office, conspiring and confederating with each other and with a certain
ATTY. VILLAMOR, did then and there wilfully, knowingly and
criminally obstruct, impede and frustrate the apprehension of
FRANCIS CARLO TAPARAN and RAYMUNDO NARAG, both
principal suspects involved in the brutal killing of DENNIS
VENTURINA, a U.P. graduating student and Chairperson of the UP
College of Administration, Student Council, and delaying the
investigation and prosecution of the said heinous case by harboring
and concealing said suspects thus, leading to the successful escape of
suspects Narag and another principal suspect JOEL CARLO
DENOSTA; that said above acts were done by the above-named
accused public officials despite their full knowledge that said suspects
were implicated in the brutal slaying of said Dennis Venturina, thus
preventing the suspects arrest, prosecution and conviction.
CONTRARY TO LAW.
Later, on motion of petitioners, the Special Prosecutor's Office
recommended the dismissal of the case. But the recommendation was
disapproved. In a memorandum, dated September 8, 1997, the Office
of the Ombudsman directed the Special Prosecutor to proceed with the
prosecution of petitioners in the Sandiganbayan. Hence this petition
for certiorari and prohibition to set aside the resolution of the
Ombudsman's office ordering the prosecution of petitioners.
Petitioners contend that:
I. THE HONORABLE OMBUDSMAN COMMITTED GRAVE
ABUSE OF DISCRETION WHEN HE RULED THAT: 1)
STUDENTS COULD BE ARRESTED WITHOUT WARRANT ON
MERE SUSPICION; 2) PD 1829 INCLUDES ARRESTS WITHOUT
WARRANTS ON MERE SUSPICION; AND WHEN HE
REVERSED THE FINDINGS AND RESOLUTION OF THE
SPECIAL PROSECUTION OFFICER, THE DEPUTY SPECIAL
PROSECUTOR AND THE SPECIAL PROSECUTOR, WHO
CONDUCTED THE REINVESTIGATION OF THE CASE; AND
FINALLY WHEN HE RESOLVED THAT PETITIONERS SHOULD
BE SUBJECTED TO PUBLIC TRIAL WHEN THERE IS NO
PROBABLE CAUSE AND NO BASIS.
II. SECTION 1, PARAGRAPH C OF PRESIDENTIAL DECREE
NO. 1829 IS UNCONSTITUTIONAL.v[5]
Two issues are raised in this case, to wit: (1) Whether the attempted
arrest of the student suspects by the NBI could be validly made
without a warrant; and (2) Whether there was probable cause for
prosecuting petitioners for violation of P.D. No. 1829. We answer
these questions in the negative.
First. In view of Art. III, 2 of the Constitution, the rule is that no arrest
may be made except by virtue of a warrant issued by a judge after
examining the complainant and the witnesses he may produce and
after finding probable cause to believe that the person to be arrested
has committed the crime. The exceptions when an arrest may be made
even without a warrant are provided in Rule 113, 5 of the Rules of
Criminal Procedure which reads:
(a) When, in his presence, the person to be arrested has committed,
is actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has
personal knowledge of the facts indicating that the person to be
arrested has committed it;
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final judgment
or temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another.
There is no question that this case does not fall under paragraphs (a)
and (c). The arresting officers in this case did not witness the crime
being committed. Neither are the students fugitives from justice nor
prisoners who had escaped from confinement. The question is whether
paragraph (b) applies because a crime had just been committed and the
NBI agents had personal knowledge of facts indicating that Narag and
Taparan were probably guilty.
Respondents contend that the NBI agents had personal knowledge of
facts gathered by them in the course of their investigation indicating
that the students sought to be arrested were the perpetrators of the
crime.vi[6] They invoke the ruling in People v. Tonog, Jr.vii[7] in
which it was held:
It may be that the police officers were not armed with a warrant when
they apprehended Accused-appellant. The warrantless arrest, however,
was justified under Section 5 (b), Rule 133 (sic) of the 1985 Rules of
Criminal Procedure providing that a peace officer may, without a
warrant, arrest a person "when an offense has in fact just been
committed and he has personal knowledge of facts indicating that the
person to be arrested has committed it." In this case, Pat. Leguarda, in
effecting the arrest of Accused-appellant, had knowledge of facts
gathered by him personally in the course of his investigation indicating
that Accused-appellant was one of the perpetrators.
In that case, the accused voluntarily went upon invitation of the police
officer who later noticed the presence of blood stains on the pants of
the accused. Upon reaching the police station, the accused was asked
to take off his pants for examination at the crime laboratory. The
question in that case involved the admissibility of the maong pants
taken from the accused. It is clear that Tonog does not apply to this
case. First, the accused in that case voluntarily went with the police
upon the latter's invitation. Second, the arresting officer found blood
stains on the pants of the accused, on the basis of which he concluded
that the accused probably committed the crime for which reason the
latter was taken into custody. Third, the arrest was made on the same
day the crime was committed. In the words of Rule 113, 5(b), the
crime had "just been committed" and the arresting officer had
"personal knowledge of the facts indicating that the person to be
arrested had committed it."
In contrast, the NBI agents in the case at bar tried to arrest Narag and
Taparan four days after the commission of the crime. They had no
personal knowledge of any fact which might indicate that the two
students were probably guilty of the crime. What they had were the
supposed positive identification of two alleged eyewitnesses, which is
insufficient to justify the arrest without a warrant by the NBI.
We have already explained what constitutes "personal knowledge" on
the part of the arresting officers:
"Personal knowledge" of facts in arrests without a warrant under
Section 5 (b) of Rule 113 must be based upon "probable cause" which
means an "actual belief or reasonable grounds of suspicion." The
grounds of suspicion are reasonable when, in the absence of actual
belief of the arresting officers, the suspicion that the person to be
arrested is probably guilty of committing the offense is based on actual
facts, i.e., supported by circumstances sufficiently strong in themselves
to create the probable cause of guilt of the person to be arrested. A
reasonable suspicion therefore must be founded on probable cause,
coupled with good faith on the part of the peace officers making the
arrest.viii[8]
Indeed, at the time Dennis Venturina was killed, these agents were
nowhere near the scene of the crime. When respondent Dizon and his
men attempted to arrest Taparan and Narag, the latter were not
committing a crime nor were they doing anything that would create the
suspicion that they were doing anything illegal. On the contrary,
Taparan and Narag, under the supervision of the U.P. police, were
taking part in a peace talk called to put an end to the violence on the
campus.
To allow the arrest which the NBI intended to make without warrant
would in effect allow them to supplant the courts. The determination
of the existence of probable cause that the persons to be arrested
committed the crime was for the judge to make. The law authorizes a
police officer or even an ordinary citizen to arrest criminal offenders
only if the latter are committing or have just committed a crime.
Otherwise, we cannot leave to the police officers the determination of
whom to apprehend if we are to protect our civil liberties. This is
evident from a consideration of the requirements before a judge can
order the arrest of suspects. Art. III, 2 of the Constitution provides:
The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or
things to be seized.
For the failure of the NBI agents to comply with constitutional and
procedural requirements, we hold that their attempt to arrest Taparan
and Narag without a warrant was illegal.
Second. In ordering the prosecution of petitioners for violation of P.D.
No. 1829, 1(c), the Office of the Ombudsman stated in its
memorandum dated September 8, 1997:
From the facts adduced, it is submitted that respondents had
reasonable ground to suspect that the SJ members sought to be arrested
participated in the clubbing of Dennis Venturina, eventually leading to
the latter's demise. It must be remembered that these SJ members were
positively identified by two eyewitnesses. A reasonably prudent mind
could not just ignore this positive identification. In fact, respondents
do not dispute the identification made on the alleged participants in the
clubbing of Dennis Venturina.
Respondent U.P. officials justify their act of barring the apprehending
officers from arresting the SJ members on the ground that the
warrantless arrest sought to be effected did not conform with Sec. 5,
Rule 113 of the Rules of Court; thereby averting, what would be in
their opinion, an illegal arrest. While this justification may, at best,
show their good faith, it does not detract from the fact that they had
reasonable ground to suspect that the SJ members sought to be arrested
committed the heinous crime of murder as a result of the positive
identification made by two eyewitnesses. Besides, the reliance on the
alleged illegality of the arrest just shows the clear intent, on
respondents' part, to wilfully obstruct, frustrate or, at the least, delay
the apprehension and investigation and prosecution of the SJ members
positively identified.
To be sure, respondents knew fully well that inquest proceedings
follow warrantless arrests. It is in this forum where the prosecutor
conducting the inquest may rule on their opinion on whether or not the
warrantless arrest effected was valid; he having the quasijudicial
authority to rule on this matter. Of course, there are various remedies
under the law which respondents may have likewise availed of or
resorted to in order to secure the liberty of the SJ members had the
latter been arrested, without prejudice to any criminal or administrative
actions that they may have filed against the arresting NBI agents.
However, it appears that they took the law into their own hands in a
manner that obstructed and delayed the investigation being conducted
by a law enforcement agency like the NBI. They facilitated the escape
of the two SJ members pinpointed by eyewitnesses as among those
who clubbed to death Dennis Venturina.ix[9]
The question is not whether petitioners had reasonable grounds to
believe that the suspects were guilty. The question is whether the
suspects could be arrested even in the absence of a warrant issued by a
court, considering that, as already explained, the attempted arrest did
not fall under any of the cases provided in Rule 113, 5. Regardless of
their suspicion, petitioners could not very well have authorized the
arrest without warrant of the students or even effected the arrest
themselves. Only courts could decide the question of probable cause
since the students were not being arrested in flagrante delicto. As the
Special Prosecutor stated in his memorandum, dated May 18, 1995, in
recommending the dismissal of the case against petitioners:
All told, the evidence adduced in this case do not show that on the
night of December 12, 1994, the accused knew or had reasonable
ground to believe that the students who were then at the U.P. police
headquarters had committed a crime. Neither were the warrantless
arrest being sought to be made on campus that night, legal. The U.P.
officials then present had every right to prevent the commission of
illegal arrests of students on campus.
Based on all the foregoing, the obvious conclusion is that, there is no
probable cause to charge Posadas, Torres-Yu, Lambino, Bentain and
Atty. Villamor of violating Section 1(c) of P.D. 1829. Probable cause
is defined as "sufficient ground to engender a well founded belief that
a crime cognizable by the court has been committed and that the
respondents are probably guilty thereof and should be held for trial"
(Section 1, Rule 12, Rules of Court). The absence of an arrest warrant,
the absence of knowledge or reasonable ground on the part of the
accused to believe that the students had committed a crime, the
absence of any law punishing refusal to attend an investigation at the
NBI, all show that there is no sufficient ground to charge the accused
with Obstruction of Justice. On the contrary, the circumstances show
that the accused, in safeguarding the rights of students, were acting
within the bounds of law.x[10]
Third. Petitioners are being prosecuted under the following provision
of P.D. No. 1829:
SEC. 1. The penalty of prision correccional in its maximum period, or
a fine ranging from 1,000 to 6,000 pesos, or both, shall be imposed
upon any person who knowingly or wilfully obstructs, impedes,
frustrates or delays the apprehension of suspects and the investigation
and prosecution of criminal cases by committing any of the following
acts:
....
(c) harboring or concealing, or facilitating the escape of, any person he
knows, or has reasonable ground to believe or suspect, has committed
any offense under existing penal laws in order to prevent his arrest,
prosecution and conviction;
The rule, of course, is that a criminal prosecution cannot be
enjoined.xi[11] But as has been held, "[i]nfinitely more important than
conventional adherence to general rules of criminal procedure is
respect for the citizen's right to be free not only from arbitrary arrest
and punishment but also from unwarranted and vexatious
prosecution."xii[12] As we held in the similar case of Venus v.
Desierto:xiii[13]
Conformably with the general rule that criminal prosecutions may not
be restrained either through a preliminary or final injunction or a writ
of prohibition, this Court ordinarily does not interfere with the
discretion of the Ombudsman to determine whether there exists
reasonable ground to believe that a crime has been committed and that
the accused is probably guilty thereof and, thereafter, to file the
corresponding information with the appropriate courts. There are,
however, settled exceptions to this rule, such as those enumerated in
Brocka v. Enrile, to wit:
a. To afford protection to the constitutional rights of the accused
(Hernandez vs. Albano, et al. L-19272, January 25, 1967, 19 SCRA
95);
b. When necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions (Dimayuga, et al. vs. Fernandez,
43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al.,
L-38383, May 27, 1981, 104 SCRA 607);
c. When there is a prejudicial question which is sub judice (De Leon
vs. Mabanag, 70 Phil. 202);
d. When the acts of the officer are without or in excess of authority
(Planas vs. Gil, 67 Phil. 62);
e. Where the prosecution is under an invalid law, ordinance or
regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong Eng vs.
Trinidad, 47 Phil. 385, 389);
f. When double jeopardy is clearly apparent (Sangalang vs. People and
Alvendia, 109 Phil. 1140);
g. Where the court has no jurisdiction over the offense (Lopez vs. City
Judge, L-25795, October 29, 1966, 18 SCRA 616);
h. Where it is a case of persecution rather than prosecution (Rustia vs.
Ocampo, CA-G.R. No. 4760, March 25, 1960);
i. Where the charges are manifestly false and motivated by the lust for
vengeance (Recto vs. Castelo, 18 L.J. (1953), cited in Raoa vs.
Alvendia, CA G.R. No. 30720-R, October 8, 1962; Cf. Guingona, et
al. vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577);
j. Where there is clearly no prima facie case against the accused and a
motion to quash on that ground has been denied (Salonga vs. Pao, et
al., L-59524, February 18, 1985, 134 SCRA 438); and
k. Preliminary injunction has been issued by the Supreme Court to
prevent the threatened unlawful arrest of petitioners (Rodriguez vs.
Castelo, L- 6374, August 1, 1953) cited in Regalado, Remedial Law
Compendium, p. 188, 1988 Ed.)
In this case, petitioners' objection to the arrest of the students cannot
be construed as a violation of P.D. No. 1829, 1(c) without rendering it
unconstitutional. Petitioners had a right to prevent the arrest of
Taparan and Narag at the time because their attempted arrest was
illegal. Indeed, they could not have interfered with the prosecution of
the guilty parties because in fact petitioner Posadas had asked the NBI
for assistance in investigating the death of Venturina. On the other
hand, just because petitioners had asked for assistance from the NBI
did not authorize respondent Dizon and his men to disregard
constitutional requirements.
The Office of the Ombudsman, however, found that the intervention
by petitioners resulted in the escape of the student suspects as
petitioner Posadas and Atty. Villamor failed in their undertaking to
surrender the students the following day.xiv[14] Hence, the
information against them charged that petitioners willfully obstructed
the apprehension of the suspects Taparan and Narag, leading to the
successful escape of these students and another principal suspect, a
certain Joel Carlo Denosta.xv[15] The student suspect mentioned by
both the resolution dated May 18, 1995 and the information, a certain
Joel Carlo Denosta, was not one of the students whose arrest by the
NBI agents petitioners prevented on December 12, 1994. Moreover,
whether or not petitioner Posadas surrendered the student suspects to
the NBI agents the following day is immaterial. In the first place, they
were not sureties or bondsmen who could be held to their undertaking.
In the second place, the fact remains that the NBI agents could not
have validly arrested Taparan and Narag at the U.P. Police Station as
they did not have a warrant at that time. Hence, only the NBI agents
themselves could be faulted for their inability to arrest Taparan and
Narag. If the NBI believed the information given to them by the
supposed eyewitnesses, the NBI should have applied for a warrant
before making the attempted arrest instead of taking the law into their
own hands. That they chose not to and were prevented from making an
arrest for lack of a warrant is their responsibility alone. Petitioners
could not be held accountable therefor.

We understand that the highly publicized death of Dennis Venturina

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

Fourth. The conclusion we have thus far reached makes it

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

WHEREFORE, the petition is GRANTED and the Ombudsman and

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

SO ORDERED.

G.R. No. 111426 July 11, 1994

 gain for herself or for another, did then and there wilfully, unlawfully and
knowingly buy and keep in her possession and/or sell or dispose of the
NORMA DIZON-PAMINTUAN, petitioner, following jewelries, to wit: one (1) set of earrings, a ring studded with
diamonds in a triangular style, one (1) set of earrings (diamond studded) and
vs. one (1) diamond-studded crucifix, or all valued at P105,000.00, which she
knew or should have known to have been derived from the proceeds of the
PEOPLE OF THE PHILIPPINES, respondent. crime of robbery committed by Joselito Sacdalan Salinas against the owner
Teodoro and Luzviminda Encarnacion.3

Puno and Puno for petitioner.

On the basis of the testimonies of prosecution witnesses Teodoro
Encarnacion (one of the offended parties), Cpl. Ignacio Jao, Jr., and Pfc.
Emmanuel Sanchez, both of the Western Police District, the trial court
promulgated on 16 November 1990 its decision, the dispositive portion of
The Solicitor General for respondent.
which reads:

DAVIDE, JR., J.:

WHEREFORE, the prosecution having proved the guilty of the accused for
violation of Presidential Decree No. 1612 beyond reasonable doubt, the
accused Norma Dizon-Pamintuan is hereby sentenced to suffer an
indeterminate penalty of imprisonment from FOURTEEN (14) YEARS of
The chief issue presented for our determination in this petition for review prision mayor to NINETEEN (19) YEARS of reclusion temporal.
under Rule 45 of the Rules of Court is the correctness of the decision of 29
March 1993 of the Court of Appeals in CA-G.R. CR No. 110241 which
affirmed the decision of Branch 20 of the Regional Trial Court of Manila in
Criminal Case No. 88-649542 finding the petitioner guilty of the violation of
No civil liability in view of the recovery of the items, subject-matter of this
the Anti-Fencing Law (P.D. No. 1612) but set aside the penalty imposed and
case.
ordered the trial court to receive additional evidence on the "correct
valuation" of the pieces of jewelry involved for the sole purpose of
determining the penalty to be imposed.
With costs.4

The information in Criminal Case No. 88-64954 charged the petitioner with
the violation of the Anti-Fencing Law in that
The evidence of the prosecution is summarized by the trial court as follows:

on or about and during the period from February 12, to February 24, 1988,
inclusive, in the City of Manila, Philippines, the said accused, with intent of
Teodoro Encarnacion, Undersecretary, Department of Public Works and
Highways testified that he has just arrived at his residence located at Better
Living Subdivision, Parañaque at around 9:45 p.m. of February 12, 1988
coming from the Airport and immediately proceeded inside the house,
leaving behind his driver and two housemaids outside to pick-up his personal
belongings from his case. It was at this point that five unidentified masked
armed persons appeared from the grassy portion of the lot beside the house
and poked their guns to his driver and two helpers and dragged them inside
his house. That the men pointed a gun at him and was made to lie face down
on the floor. The other occupants, namely his wife, the maids and his driver
were likewise made to lie on the floor. Thereafter, the robbers ransacked the
house and took away jewelries and other personal properties including cash.
After the intruders left the house he reported the matter immediately to the
police. He was then interviewed by the Parañaque police and was informed
that an operation group would be assigned to the case.
He likewise reported the matter to the Western Police District on February
15, 1988. Two days later, a group of WPD operatives came over to his house
and he was asked to prepare a list of items of jewelry and other valuables that
were lost including a sketch of distinctive items. He was later told that some
of the lost items were in Chinatown area as tipped by the informer the police
had dispatched. That an entrapment would be made with their participation,
on February 14, 1988. As such, they went to Camp Crame at around 9:00
a.m. and arrived at the vicinity of 733 Florentino Torres Street, Sta. Cruz,
Manila at about 10:00 a.m.; that he is with his wife posed as a buyer and
were able to recognize items of the jewelry stolen displayed at the stall being
tended by Norma Dizon Pamintuan; the pieces were: 1 earring and ring
studded with diamonds worth P75,000 bought from estimator Nancy Bacud
(Exh. "C-2"), 1 set of earring diamond worth P15,000 (Exh. "C-3") and 1
gold chain with crucifix worth P3,000 (Exh. "C-4").
Corporal Ignacio Jao, Jr. of the WPD testified that he was with the spouses
Teodoro Encarnacion, Jr. in the morning of February 24, 1988 and they
proceeded to Florentino Torres Street, Sta. Cruz, Manila at the stall of Norma
Dizon-Pamintuan together with Sgt. Perez. After the spouses Encarnacion
recognized the items subject matter of the robbery at the display window of
the stall being tended by the herein accused, they invited the latter to the
precinct and investigated the same. They likewise brought the said showcase
to the WPD station. He further testified that he has no prior knowledge of the
stolen jewelries of the private complainant from one store to another.
Pfc. Emmanuel Sanchez of the WPD testified that he reported for duty on
February 24, 1988; that he was with the group who accompanied the spouses
Encarnacion in Sta. Cruz, Manila and was around when the couple saw some
of the lost jewelries in the display stall of the accused. He was likewise
present during the early part of the investigation of the WPD station.5
The recovery of the pieces of jewelry, on the basis of which the trial court
ruled that no civil liability should be adjudged against the petitioner, took
place when, as testified to by Teodoro Encarnacion, the petitioner "admitted
that she got the items but she did not know they were stolen [and that] she
surrendered the items and gave them to [his] wife."6
On the other hand, the version of the defense, as testified to by Rosito Dizon-
Pamintuan, is summarized by the trial court thus:
The defense presented only the testimony of Rosito Dizon-Pamintuan who
testified that he is the brother of Norma Dizon-Pamintuan and that sometime
around 11:00 a.m. of February 24, 1985, he, together with the accused went
infront of the Carinderia along Florentino Torres Street, Sta. Cruz, Manila
waiting for a vacancy therein to eat lunch. Suddenly, three persons arrived
and he overheard that Cpl. Jao told her sister to get the jewelry from inside
the display window but her sister requested to wait for Fredo, the owner of
the stall. But ten minutes later when said Fredo did not show up, the police
officer opened the display window and got the contents of the same. The
display stall was hauled to a passenger jeepney and the same, together with
the accused were taken to the police headquarters. He likewise testified that
he accompanied his sister to the station and after investigation was sent
home.7
In convicting the petitioner, the trial court made the following findings: The guilt of accused-appellant was established beyond reasonable doubt. All
the elements of the crime of fencing in violation of the Anti-Fencing Law of
1979 (P.D. No. 1612), to wit:

The prosecution was able to prove by evidence that the recovered items were
part of the loot and such recovered items belong to the spouses Encarnacion,
the herein private complainants. That such items were recovered by the 1. A crime of robbery or theft has been committed;
Police Officers from the stall being tended by the accused at that time. Of
importance, is that the law provides a disputable presumption of fencing
under Section 5 thereof, to wit:
2. A person, not a participant in said crime, buys, receives, possesses, keeps,
acquires, conceals, sells or disposes, or buys and sells; or in any manner
deals in any article or item, object or anything of value;
Mere possession of any goods, article, item object, or anything of value
which has been the subject of robbery or thievery shall be prima facie
evidence of fencing.
3. With personal knowledge, or should be known to said person that said
item, object or anything of value has been derived from the proceeds of the
crime of robbery or theft;
There is no doubt that the recovered items were found in the possession of
the accused and she was not able to rebut the presumption though the
evidence for the defense alleged that the stall is owned by one Fredo. A
distinction should likewise be made between ownership and possession in 4. With intent to gain for himself or for another;
relation to the act of fencing. Moreover, as to the value of the jewelries
recovered, the prosecution was able to show that the same is Ninety Three
Thousand Pesos (P93,000.00).8
have been established by positive and convincing evidence of the prosecution
...

The petitioner then appealed her conviction to the Court of Appeals (CA-
G.R. CR No. 11024) where she raised two issues: (1) that the judgment was
based on a mere presumption, and (2) that the prosecution failed to show that ...
the value of the jewelry recovered is P93,000.00.

In its challenged decision of 29 March 1993, the Court of Appeals disposed
of the first issue in this wise:
The fact that a crime of robbery has been committed on February 12, 1988 is
established by the testimony of private complainant Teodoro T. Encarnacion
who immediately reported the same to Parañaque Police Station of the
Southern Police District (TSN, Hearings of October 3, 1988, November 9,
1988 and January 11, 1989; Exh. A) and submitted a list and sketches of the
jewelries robbed, among other things, from their residence located at Better
Living Subdivision, Parañaque, Metro Manila (Exh. C,
C-1 to C-4 and D).
The second element is likewise established by convincing evidence. On
February 24, 1988, accused-appellant was found selling the jewelries (Exhs.
C-2, C-3 and C-4) which was displayed in a showcase in a stall located at
Florentino Street, Sta. Cruz, Manila. [Testimonies of Teodoro Encarnacion
(id. supra); Cpl. Ignacio Jao (TSN, Hearing of February 13, 1989) and Pfc.
Emmanuel Sanchez (TSN, Hearing of June 4, 1989)].
On the element of knowledge that the items are derived from the proceeds of
the crime of robbery and of intent to gain for herself or for another, the Anti-
Fencing Law provides:
Sec. 5. Presumption of Fencing. — Mere possession of any good, article,
item, object, or anything of value which has been the subject of robbery or
thievery shall be prima facie evidence of fencing.
Knowledge and intent to gain are proven by the fact that these jewelries were
found in possession of appellant and they were displayed for sale in a
showcase being tended by her in a stall along Florentino Street, Sta. Cruz,
Manila.9
Nevertheless, the Court of Appeals was of the opinion that there was not
enough evidence to prove the value of the pieces of jewelry recovered, which
is essential to the imposition of the proper penalty under Section 3 of P.D.
No. 1612. It opined that the trial court erred in concluding that "the value of
the recovered jewelries is P93,000.00 based on the bare testimony of the
private complainant and the self-serving list he submitted (Exhs. C, C-2 and
C-4, TSN, Hearing of October 3, 1993)."10
The dispositive portion of the Court of Appeals' decision reads:
WHEREFORE, finding that the trial court did not commit any reversible
error, its decision dated October 26, 1990 convincing accused appellant is
hereby AFFIRMED with the modification that the penalty imposed is SET
ASIDE and the Regional Trial Court (Branch 20) of Manila is ordered to
receive evidence with respect to the correct valuation of the properties
involved in this case, marked as Exhibits "C", "C-2" and "C-4" for the sole
purpose of determining the proper penalty to be meted out against accused
under Section 3, P.D. No. 1612. Let the original records be remanded
immediately.11
Hence, this petition wherein the petitioner contends that:
I
PUBLIC RESPONDENT COURT OF APPEALS MANIFESTLY ERRED
IN AFFIRMING THE DECISION OF PUBLIC RESPONDENT JUDGE
CAÑEBA, IN BLATANT DISREGARD OF APPLICABLE LAW AND
WELL-ESTABLISHED JURISPRUDENCE.
II
PUBLIC RESPONDENT COURT OF APPEALS MANIFESTLY ERRED
IN REMANDING THE CASE TO THE COURT A QUO FOR
RECEPTION OF EVIDENCE FOR THE PURPOSE OF DETERMINING
THE CORRECT PENALTY TO BE IMPOSED.12
On 23 February 1994, after the public respondents had filed their Comment
and the petitioner her Reply to the Comment, this Court gave due course to
the petition and required the parties to submit their respective memoranda,
which they subsequently complied with.
The first assigned error is without merit.
Fencing, as defined in Section 2 of P.D. No. 1612 (Anti-Fencing Law), is
"the act of any person who, with intent to gain for himself or for another,
shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall
buy and sell, or in any manner deal in any article, item, object or anything of
value which he knows, or should be known to him, to have been derived
from the proceeds of the crime of robbery or theft."
Before P.D. No. 1612, a fence could only be prosecuted for and held liable as
an accessory, as the term is defined in Article 19 of the Revised Penal Code.
The penalty applicable to an accessory is obviously light under the rules
prescribed in Articles 53, 55, and 57 of the Revised Penal Code, subject to
the qualification set forth in Article 60 thereof. Nothing, however, the reports
from law enforcement agencies that "there is rampant robbery and thievery of
government and private properties" and that "such robbery and thievery have
become profitable on the part of the lawless elements because of the
existence of ready buyers, commonly known as fence, of stolen properties,"
P.D.
No. 1612 was enacted to "impose heavy penalties on persons who profit by
the effects of the crimes of robbery and theft." Evidently, the accessory in the
crimes of robbery and theft could be prosecuted as such under the Revised
Penal Code or under P.D. No. 1612. However, in the latter case, he ceases to
be a mere accessory but becomes a principal in the crime of fencing.
Elsewise stated, the crimes of robbery and theft, on the one hand, and
fencing, on the other, are separate and distinct offenses.13 The state may thus
choose to prosecute him either under the Revised Penal Code or P.D. No.
1612, although the preference for the latter would seem inevitable
considering that fencing is a malum prohibitum, and P.D. No. 1612 creates a
presumption of fencing14 and prescribes a higher penalty based on the value
of the property.15
The elements of the crime of fencing are:
1. A crime of robbery or theft has been committed;
2. The accused, who is not a principal or accomplice in the commission of
the crime of robbery or theft, buys, receives, possesses, keeps, acquires,
conceals, sells or disposes, or buys and sells, or in any manner deals in any
article, item, object or anything of value, which has been derived from the
proceeds of the said crime;
3. The accused knows or should have known that the said article, item, object
or anything of value has been derived from the proceeds of the crime of
robbery or theft; and
4. There is, on the part of the accused, intent to gain for himself or for
another.
In the instant case, there is no doubt that the first, second, and fourth
elements were duly established. A robbery was committed on 12 February
1988 in the house of the private complainants who afterwards reported the
incident to the Parañaque Police, the Western Police District, the NBI, and
the CIS, and submitted a list of the lost items and sketches of the jewelry
taken from them (Exhibits "C" and "D"). Three of these items stolen, viz., (a)
a pair of earrings and ring studded with diamonds worth P75,000.00 (Exhibit
"C-2"); (b) one set of earrings worth P15,000.00 (Exhibit "C-3"); and (c) a
chain with crucifix worth P3,000.00 (Exhibit "C-4"), were displayed for sale
at a stall tended to by the petitioner in Florentino Torres Street, Sta. Cruz,
Manila. The public display of the articles for sale clearly manifested an intent
to gain on the part of the petitioner.
The more crucial issue to be resolved is whether the prosecution proved the
existence of the third element: that the accused knew or should have known
that the items recovered from her were the proceeds of the crime of robbery
or theft.
One is deemed to know a particular fact if he has the cognizance,
consciousness or awareness thereof, or is aware of the existence of
something, or has the acquaintance with facts, or if he has something within
the mind's grasp with certitude and clarity.16 When knowledge of the
existence of a particular fact is an element of an offense, such knowledge is
established if a person is aware of a high probability of its existence unless
he actually believes that it does not exist.17 On the other hand, the words
"should know" denote the fact that a person of reasonable prudence and
intelligence would ascertain the fact in performance of his duty to another or
would govern his conduct upon assumption that such fact exists.18
Knowledge refers to a mental state of awareness about a fact. Since the court
cannot penetrate the mind of an accused and state with certainty what is
contained therein, it must determine such knowledge with care from the overt
acts of that person. And given two equally plausible states of cognition or
mental awareness, the court should choose the one which sustains the
constitutional presumption of innocence.19
Since Section 5 of P.D. No. 1612 expressly provides that "[m]ere possession
of any good, article, item, object, or anything of value which has been the
subject of robbery or thievery shall be prima facie evidence of fencing," it
follows that the petitioner is presumed to have knowledge of the fact that the
items found in her possession were the proceeds of robbery or theft. The
presumption is reasonable for no other natural or logical inference can arise
from the established fact of her possession of the proceeds of the crime of
robbery or theft. This presumption does not offend the presumption of
innocence enshrined in the fundamental law.20 In the early case of United
States vs.
Luling, 21 this Court held:
It has been frequently decided, in case of statutory crimes, that no
constitutional provision is violated by a statute providing that proof by the
state of some material fact or facts shall constitute prima facie evidence of
guilt, and that then the burden is shifted to the defendant for the purpose of
showing that such act or acts are innocent and are committed without
unlawful intention. (Commonwealth vs. Minor, 88 Ky., 422.)
In some of the States, as well as in England, there exist what are known as
common law offenses. In the Philippine Islands no act is a crime unless it is
made so by statute. The state having the right to declare what acts are
criminal, within certain well defined limitations, has a right to specify what
act or acts shall constitute a crime, as well as what proof shall constitute
prima facie evidence of guilt, and then to put upon the defendant the burden
of showing that such act or acts are innocent and are not committed with any
criminal intent or intention.
In his book on constitutional law,22 Mr. Justice Isagani A. Cruz said:
Nevertheless, the constitutional presumption of innocence may be overcome
by contrary presumptions based on the experience of human conduct [People
vs. Labara, April 20, 1954]. Unexplained flight, for example, may lead to an
inference of guilt, as 'the wicked flee when no man pursueth, but the
righteous is as bold as a lion. Failure on the part of the accused to explain his
possession of stolen property may give rise to the reasonable presumption
that it was he himself who had stolen it [U.S. vs. Espia, 16 Phil. 506]. Under
our Revised Penal Code, the inability of an accountable officer to produce As found by the trial court, the recovered articles had a total value of
funds or property entrusted to him will be considered prima facie evidence P93,000.00, broken down as follows:
that he has appropriated them to his personal use [Art. 217]. According to
Cooley, the constitutional presumption will not apply as long as there is
"some rational connection between the fact proved and the ultimate fact
presumed, and the inference of one fact from proof of another shall not be so a) one earring and ring studded with diamonds (Exh. "C-2") — P75,000.00
unreasonable as to be purely arbitrary mandate" [1 Cooley, 639].

b) one set of earring (Exh. "C-3") — P15,000.00

The petitioner was unable to rebut the presumption under P.D. No. 1612. She
relied solely on the testimony of her brother which was insufficient to
overcome the presumption, and, on the contrary, even disclosed that the
petitioner was engaged in the purchase and sale of jewelry and that she used
c) one gold chain with crucifix (Exh. "C-4") — P3,000.00
to buy from a certain Fredo.23

These findings are based on the testimony of Mr. Encarnacion 25 and on

Fredo was not presented as a witness and it was not established that he was a
Exhibit "C,"26 a list of the items which were taken by the robbers on 12
licensed dealer or supplier of jewelry. Section 6 of P.D. No. 1612 provides
February 1988, together with the corresponding valuation thereof. On cross-
that "all stores, establishments or entitles dealing in the buy and sell of any
examination, Mr. Encarnacion re-affirmed his testimony on direct
good, article, item, object or anything of value obtained from an unlicensed
examination that the value of the pieces of jewelry described in Exhibit "C-2"
dealer or supplier thereof, shall before offering the same for sale to the
is P75,000.0027 and that the value of the items described in Exhibit "C-3" is
public, secure the necessary clearance or permit from the station commander
P15,000.00, although he admitted that only one earring — and not the pair —
of the Integrated National Police in the town or city where such store,
was recovered. 28 The cross-examination withheld any question on the gold
establishment or entity is located." Under the Rules and Regulations24
chain with crucifix described in Exhibit "C-4." In view, however, of the
promulgated to carry out the provisions of Section 6, an unlicensed
admission that only one earring was recovered of the jewelry described in
dealer/supplier refers to any person, partnership, firm, corporation,
Exhibit "C-3," it would be reasonable to reduce the value from P15,000.00 to
association or any other entity or establishment not licensed by the
P7,500.00. Accordingly, the total value of the pieces of jewelry displayed for
government to engage in the business of dealing in or supplying "used
sale by the petitioner and established to be part of the proceeds of the robbery
secondhand articles," which refers to any good, article, item, object or
on 12 February 1988 would be P87,000.00.
anything of value obtained from an unlicensed dealer or supplier, regardless
of whether the same has actually or in fact been used.

Section 3(a) of P.D. No. 1612 provides that the penalty of prision mayor
shall be imposed upon the accused if the value of the property involved is
We do not, however, agree with the Court of Appeals that there is
more than P12,000.00 but does not exceed P22,000.00, and if the value of
insufficient evidence to prove the actual value of the recovered articles.
such property exceeds the latter sum, the penalty of prision mayor should be
imposed in its maximum period, adding one year for each additional
P10,000.00; the total penalty which may be imposed, however, shall not
exceed twenty years. In such cases, the penalty shall be termed reclusion
temporal and the accessory penalty pertaining thereto provided in the SO ORDERED.
Revised Penal Code shall also be imposed. The maximum penalty that can be
imposed in this case would then be eighteen (18) years and five (5) months,
which is within the range of reclusion temporal maximum. Applying the
Indeterminate Sentence law which allows the imposition of an indeterminate
penalty which, with respect to offenses penalized by a special law, shall
range from a minimum which shall not be lower than the minimum
prescribed by the special law to a maximum which should not exceed the
maximum provided therein, the petitioner can thus be sentenced to an
indeterminate penalty ranging from ten (10) years and one (1) day of prision
mayor maximum, as minimum to eighteen (18) years and five (5) months of
reclusion temporal maximum as maximum, with the accessory penalties
corresponding to the latter.

In the light of the foregoing, the Court of Appeals erred in setting aside the
penalty imposed by the trial court and in remanding the case to the trial court
for further reception of evidence to determine the actual value of the pieces
of jewelry recovered from the petitioner and for the imposition of the
appropriate penalty.

We do not agree with the petitioner's contention, though, that a remand for
further reception of evidence would place her in double jeopardy. There is
double jeopardy when the following requisites concur: (1) the first jeopardy
must have attached prior to the second, (2) the first jeopardy must have
validly been terminated, and (3) the second jeopardy must be for the same
offense as that in the first.29 Such a concurrence would not occur assuming
that the case was remanded to the trial court.

WHEREFORE, the instant petition is partly GRANTED by setting aside the

challenged decision of the Court of Appeals in CA-G.R. CR No. 11024
insofar as it sets aside the penalty imposed by Branch 20 of the Regional
Trial Court of Manila in Criminal Case No. 88-64954 and orders the remand
of the case for the trial court to receive evidence with respect to the correct
value of the properties involved. The decision of the Regional Trial Court is
AFFIRMED subject to the modification of the penalty which is hereby
reduced to an indeterminate penalty ranging from Ten (10) years and One (1)
day of Prision Mayor maximum as minimum to Eighteen (18) years and Five
(5) months of Reclusion Temporal maximum as maximum, with the
accessory penalties of the latter.

G.R. No. 111426 July 11, 1994
NORMA DIZON-PAMINTUAN, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
Puno and Puno for petitioner.
The Solicitor General for respondent.
DAVIDE, JR., J.:
The chief issue presented for our determination in this petition for review
under Rule 45 of the Rules of Court is the correctness of the decision of 29
March 1993 of the Court of Appeals in CA-G.R. CR No. 110241 which
affirmed the decision of Branch 20 of the Regional Trial Court of Manila in
Criminal Case No. 88-649542 finding the petitioner guilty of the violation of
the Anti-Fencing Law (P.D. No. 1612) but set aside the penalty imposed and
ordered the trial court to receive additional evidence on the "correct
valuation" of the pieces of jewelry involved for the sole purpose of
determining the penalty to be imposed.
The information in Criminal Case No. 88-64954 charged the petitioner with
the violation of the Anti-Fencing Law in that
on or about and during the period from February 12, to
February 24, 1988, inclusive, in the City of Manila,
Philippines, the said accused, with intent of gain for herself
or for another, did then and there wilfully, unlawfully and
knowingly buy and keep in her possession and/or sell or
dispose of the following jewelries, to wit: one (1) set of
earrings, a ring studded with diamonds in a triangular style,
one (1) set of earrings (diamond studded) and one (1)
diamond-studded crucifix, or all valued at P105,000.00,
which she knew or should have known to have been derived
from the proceeds of the crime of robbery committed by
Joselito Sacdalan Salinas against the owner Teodoro and
Luzviminda Encarnacion.3
On the basis of the testimonies of prosecution witnesses Teodoro
Encarnacion (one of the offended parties), Cpl. Ignacio Jao, Jr., and Pfc.
Emmanuel Sanchez, both of the Western Police District, the trial court
promulgated on 16 November 1990 its decision, the dispositive portion of
which reads:
WHEREFORE, the prosecution having proved the guilty of
the accused for violation of Presidential Decree No. 1612
beyond reasonable doubt, the accused Norma Dizon-
Pamintuan is hereby sentenced to suffer an indeterminate
penalty of imprisonment from FOURTEEN (14) YEARS of
prision mayor to NINETEEN (19) YEARS of reclusion
temporal.
No civil liability in view of the recovery of the items,
subject-matter of this case.
With costs.4
The evidence of the prosecution is summarized by the trial court as follows:
Teodoro Encarnacion, Undersecretary, Department of Public
Works and Highways testified that he has just arrived at his
residence located at Better Living Subdivision, Parañaque at
around 9:45 p.m. of February 12, 1988 coming from the
Airport and immediately proceeded inside the house, leaving
behind his driver and two housemaids outside to pick-up his
personal belongings from his case. It was at this point that
five unidentified masked armed persons appeared from the
grassy portion of the lot beside the house and poked their
guns to his driver and two helpers and dragged them inside
his house. That the men pointed a gun at him and was made
to lie face down on the floor. The other occupants, namely
his wife, the maids and his driver were likewise made to lie
on the floor. Thereafter, the robbers ransacked the house and
took away jewelries and other personal properties including
cash. After the intruders left the house he reported the matter
immediately to the police. He was then interviewed by the
Parañaque police and was informed that an operation group
would be assigned to the case.
He likewise reported the matter to the Western Police
District on February 15, 1988. Two days later, a group of
WPD operatives came over to his house and he was asked to
prepare a list of items of jewelry and other valuables that
were lost including a sketch of distinctive items. He was
later told that some of the lost items were in Chinatown area
as tipped by the informer the police had dispatched. That an
entrapment would be made with their participation, on
February 14, 1988. As such, they went to Camp Crame at
around 9:00 a.m. and arrived at the vicinity of 733
Florentino Torres Street, Sta. Cruz, Manila at about 10:00
a.m.; that he is with his wife posed as a buyer and were able
to recognize items of the jewelry stolen displayed at the stall
being tended by Norma Dizon Pamintuan; the pieces were: 1
earring and ring studded with diamonds worth P75,000
bought from estimator Nancy Bacud (Exh. "C-2"), 1 set of
earring diamond worth P15,000 (Exh. "C-3") and 1 gold
chain with crucifix worth P3,000 (Exh. "C-4").
Corporal Ignacio Jao, Jr. of the WPD testified that he was
with the spouses Teodoro Encarnacion, Jr. in the morning of
February 24, 1988 and they proceeded to Florentino Torres
Street, Sta. Cruz, Manila at the stall of Norma Dizon-
Pamintuan together with Sgt. Perez. After the spouses
Encarnacion recognized the items subject matter of the
robbery at the display window of the stall being tended by
the herein accused, they invited the latter to the precinct and
investigated the same. They likewise brought the said
showcase to the WPD station. He further testified that he has
no prior knowledge of the stolen jewelries of the private
complainant from one store to another.
Pfc. Emmanuel Sanchez of the WPD testified that he
reported for duty on February 24, 1988; that he was with the
group who accompanied the spouses Encarnacion in Sta.
Cruz, Manila and was around when the couple saw some of
the lost jewelries in the display stall of the accused. He was
likewise present during the early part of the investigation of
the WPD station.5
The recovery of the pieces of jewelry, on the basis of which the trial court
ruled that no civil liability should be adjudged against the petitioner, took
place when, as testified to by Teodoro Encarnacion, the petitioner "admitted
that she got the items but she did not know they were stolen [and that] she
surrendered the items and gave them to [his] wife."6
On the other hand, the version of the defense, as testified to by Rosito Dizon-
Pamintuan, is summarized by the trial court thus:
The defense presented only the testimony of Rosito Dizon-
Pamintuan who testified that he is the brother of Norma
Dizon-Pamintuan and that sometime around 11:00 a.m. of
February 24, 1985, he, together with the accused went
infront of the Carinderia along Florentino Torres Street, Sta.
Cruz, Manila waiting for a vacancy therein to eat lunch.
Suddenly, three persons arrived and he overheard that Cpl.
Jao told her sister to get the jewelry from inside the display
window but her sister requested to wait for Fredo, the owner
of the stall. But ten minutes later when said Fredo did not
show up, the police officer opened the display window and
got the contents of the same. The display stall was hauled to
a passenger jeepney and the same, together with the accused
 were taken to the police headquarters. He likewise testified
that he accompanied his sister to the station and after
investigation was sent home.7
In convicting the petitioner, the trial court made the following findings:
The prosecution was able to prove by
evidence that the recovered items were part
of the loot and such recovered items belong
to the spouses Encarnacion, the herein
private complainants. That such items were
recovered by the Police Officers from the
stall being tended by the accused at that
time. Of importance, is that the law provides
a disputable presumption of fencing under
Section 5 thereof, to wit:
Mere possession of any goods, article, item
object, or anything of value which has been
the subject of robbery or thievery shall be
prima facie evidence of fencing.
...
There is no doubt that the recovered items were found in the
possession of the accused and she was not able to rebut the
presumption though the evidence for the defense alleged that
the stall is owned by one Fredo. A distinction should
likewise be made between ownership and possession in
relation to the act of fencing. Moreover, as to the value of
the jewelries recovered, the prosecution was able to show
that the same is Ninety Three Thousand Pesos
(P93,000.00).8
The petitioner then appealed her conviction to the Court of Appeals (CA-
G.R. CR No. 11024) where she raised two issues: (1) that the judgment was
based on a mere presumption, and (2) that the prosecution failed to show that
the value of the jewelry recovered is P93,000.00.
In its challenged decision of 29 March 1993, the Court of Appeals disposed
of the first issue in this wise:
The guilt of accused-appellant was established beyond
reasonable doubt. All the elements of the crime of fencing in
violation of the Anti-Fencing Law of 1979 (P.D. No. 1612),
to wit:
1. A crime of robbery or theft has been committed;
2. A person, not a participant in said crime, buys, receives,
possesses, keeps, acquires, conceals, sells or disposes, or
buys and sells; or in any manner deals in any article or item,
object or anything of value;
3. With personal knowledge, or should be known to said
person that said item, object or anything of value has been
derived from the proceeds of the crime of robbery or theft;
4. With intent to gain for himself or for another;
have been established by positive and convincing evidence
of the prosecution . . .
The fact that a crime of robbery has been committed on
February 12, 1988 is established by the testimony of private
complainant Teodoro T. Encarnacion who immediately
reported the same to Parañaque Police Station of the
Southern Police District (TSN, Hearings of October 3, 1988,
November 9, 1988 and January 11, 1989; Exh. A) and
submitted a list and sketches of the jewelries robbed, among
other things, from their residence located at Better Living
Subdivision, Parañaque, Metro Manila (Exh. C,
C-1 to C-4 and D).
The second element is likewise established by convincing
evidence. On February 24, 1988, accused-appellant was
found selling the jewelries (Exhs. C-2, C-3 and C-4) which
was displayed in a showcase in a stall located at Florentino
Street, Sta. Cruz, Manila. [Testimonies of Teodoro
Encarnacion (id. supra); Cpl. Ignacio Jao (TSN, Hearing of
 February 13, 1989) and Pfc. Emmanuel Sanchez (TSN,
Hearing of June 4, 1989)].
On the element of knowledge that the items are derived from
the proceeds of the crime of robbery and of intent to gain for
herself or for another, the Anti-Fencing Law provides:
Sec. 5. Presumption of Fencing. — Mere
possession of any good, article, item, object,
or anything of value which has been the
subject of robbery or thievery shall be prima
facie evidence of fencing.
Knowledge and intent to gain are proven by the fact that
these jewelries were found in possession of appellant and
they were displayed for sale in a showcase being tended by
her in a stall along Florentino Street, Sta. Cruz, Manila.9
Nevertheless, the Court of Appeals was of the opinion that there was not
enough evidence to prove the value of the pieces of jewelry recovered, which
is essential to the imposition of the proper penalty under Section 3 of P.D.
No. 1612. It opined that the trial court erred in concluding that "the value of
the recovered jewelries is P93,000.00 based on the bare testimony of the
private complainant and the self-serving list he submitted (Exhs. C, C-2 and
C-4, TSN, Hearing of October 3, 1993)."10
The dispositive portion of the Court of Appeals' decision reads:
WHEREFORE, finding that the trial court did not commit
any reversible error, its decision dated October 26, 1990
convincing accused appellant is hereby AFFIRMED with the
modification that the penalty imposed is SET ASIDE and the
Regional Trial Court (Branch 20) of Manila is ordered to
receive evidence with respect to the correct valuation of the
properties involved in this case, marked as Exhibits "C", "C-
2" and "C-4" for the sole purpose of determining the proper
penalty to be meted out against accused under Section 3,
P.D. No. 1612. Let the original records be remanded
immediately.11
Hence, this petition wherein the petitioner contends that:
I
PUBLIC RESPONDENT COURT OF APPEALS
MANIFESTLY ERRED IN AFFIRMING THE DECISION
OF PUBLIC RESPONDENT JUDGE CAÑEBA, IN
BLATANT DISREGARD OF APPLICABLE LAW AND
WELL-ESTABLISHED JURISPRUDENCE.
II
PUBLIC RESPONDENT COURT OF APPEALS
MANIFESTLY ERRED IN REMANDING THE CASE TO
THE COURT A QUO FOR RECEPTION OF EVIDENCE
FOR THE PURPOSE OF DETERMINING THE
CORRECT PENALTY TO BE IMPOSED.12
On 23 February 1994, after the public respondents had filed their Comment
and the petitioner her Reply to the Comment, this Court gave due course to
the petition and required the parties to submit their respective memoranda,
which they subsequently complied with.
The first assigned error is without merit.
Fencing, as defined in Section 2 of P.D. No. 1612 (Anti-Fencing Law), is
"the act of any person who, with intent to gain for himself or for another,
shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall
buy and sell, or in any manner deal in any article, item, object or anything of
value which he knows, or should be known to him, to have been derived
from the proceeds of the crime of robbery or theft."
Before P.D. No. 1612, a fence could only be prosecuted for and held liable as
an accessory, as the term is defined in Article 19 of the Revised Penal Code.
The penalty applicable to an accessory is obviously light under the rules
prescribed in Articles 53, 55, and 57 of the Revised Penal Code, subject to
the qualification set forth in Article 60 thereof. Nothing, however, the reports
from law enforcement agencies that "there is rampant robbery and thievery of
government and private properties" and that "such robbery and thievery have
become profitable on the part of the lawless elements because of the
existence of ready buyers, commonly known as fence, of stolen properties,"
P.D.
No. 1612 was enacted to "impose heavy penalties on persons who profit by
the effects of the crimes of robbery and theft." Evidently, the accessory in the
crimes of robbery and theft could be prosecuted as such under the Revised
Penal Code or under P.D. No. 1612. However, in the latter case, he ceases to
be a mere accessory but becomes a principal in the crime of fencing.
Elsewise stated, the crimes of robbery and theft, on the one hand, and
fencing, on the other, are separate and distinct offenses.13 The state may thus
choose to prosecute him either under the Revised Penal Code or P.D. No.
1612, although the preference for the latter would seem inevitable
considering that fencing is a malum prohibitum, and P.D. No. 1612 creates a
presumption of fencing14 and prescribes a higher penalty based on the value
of the property.15
The elements of the crime of fencing are:
1. A crime of robbery or theft has been committed;
2. The accused, who is not a principal or accomplice
in the commission of the crime of robbery or theft,
buys, receives, possesses, keeps, acquires, conceals,
sells or disposes, or buys and sells, or in any manner
deals in any article, item, object or anything of
value, which has been derived from the proceeds of
the said crime;
3. The accused knows or should have known that the
said article, item, object or anything of value has
been derived from the proceeds of the crime of
robbery or theft; and
4. There is, on the part of the accused, intent to gain
for himself or for another.
In the instant case, there is no doubt that the first, second, and fourth
elements were duly established. A robbery was committed on 12 February
1988 in the house of the private complainants who afterwards reported the
incident to the Parañaque Police, the Western Police District, the NBI, and
the CIS, and submitted a list of the lost items and sketches of the jewelry
taken from them (Exhibits "C" and "D"). Three of these items stolen, viz., (a)
a pair of earrings and ring studded with diamonds worth P75,000.00 (Exhibit
"C-2"); (b) one set of earrings worth P15,000.00 (Exhibit "C-3"); and (c) a
chain with crucifix worth P3,000.00 (Exhibit "C-4"), were displayed for sale
at a stall tended to by the petitioner in Florentino Torres Street, Sta. Cruz,
Manila. The public display of the articles for sale clearly manifested an intent
to gain on the part of the petitioner.
The more crucial issue to be resolved is whether the prosecution proved the
existence of the third element: that the accused knew or should have known
that the items recovered from her were the proceeds of the crime of robbery
or theft.
One is deemed to know a particular fact if he has the cognizance,
consciousness or awareness thereof, or is aware of the existence of
something, or has the acquaintance with facts, or if he has something within
the mind's grasp with certitude and clarity.16 When knowledge of the
existence of a particular fact is an element of an offense, such knowledge is
established if a person is aware of a high probability of its existence unless
he actually believes that it does not exist.17 On the other hand, the words
"should know" denote the fact that a person of reasonable prudence and
intelligence would ascertain the fact in performance of his duty to another or
would govern his conduct upon assumption that such fact exists.18
Knowledge refers to a mental state of awareness about a fact. Since the court
cannot penetrate the mind of an accused and state with certainty what is
contained therein, it must determine such knowledge with care from the overt
acts of that person. And given two equally plausible states of cognition or
mental awareness, the court should choose the one which sustains the
constitutional presumption of innocence.19
Since Section 5 of P.D. No. 1612 expressly provides that "[m]ere possession
of any good, article, item, object, or anything of value which has been the
subject of robbery or thievery shall be prima facie evidence of fencing," it
follows that the petitioner is presumed to have knowledge of the fact that the
items found in her possession were the proceeds of robbery or theft. The
presumption is reasonable for no other natural or logical inference can arise
from the established fact of her possession of the proceeds of the crime of
robbery or theft. This presumption does not offend the presumption of
innocence enshrined in the fundamental law.20 In the early case of United
States vs.
Luling, 21 this Court held:
 It has been frequently decided, in case of statutory crimes,
that no constitutional provision is violated by a statute
providing that proof by the state of some material fact or
facts shall constitute prima facie evidence of guilt, and that
then the burden is shifted to the defendant for the purpose of
showing that such act or acts are innocent and are committed
without unlawful intention. (Commonwealth vs. Minor, 88
Ky., 422.)
In some of the States, as well as in England, there exist what
are known as common law offenses. In the Philippine
Islands no act is a crime unless it is made so by statute. The
state having the right to declare what acts are criminal,
within certain well defined limitations, has a right to specify
what act or acts shall constitute a crime, as well as what
proof shall constitute prima facie evidence of guilt, and then
to put upon the defendant the burden of showing that such
act or acts are innocent and are not committed with any
criminal intent or intention.
In his book on constitutional law,22 Mr. Justice Isagani A. Cruz said:
Nevertheless, the constitutional presumption of innocence
may be overcome by contrary presumptions based on the
experience of human conduct [People vs. Labara, April 20,
1954]. Unexplained flight, for example, may lead to an
inference of guilt, as 'the wicked flee when no man pursueth,
but the righteous is as bold as a lion. Failure on the part of
the accused to explain his possession of stolen property may
give rise to the reasonable presumption that it was he himself
who had stolen it [U.S. vs. Espia, 16 Phil. 506]. Under our
Revised Penal Code, the inability of an accountable officer
to produce funds or property entrusted to him will be
considered prima facie evidence that he has appropriated
them to his personal use [Art. 217]. According to Cooley, the
constitutional presumption will not apply as long as there is
"some rational connection between the fact proved and the
ultimate fact presumed, and the inference of one fact from
proof of another shall not be so unreasonable as to be purely
arbitrary mandate" [1 Cooley, 639].
The petitioner was unable to rebut the presumption under P.D. No. 1612. She
relied solely on the testimony of her brother which was insufficient to
overcome the presumption, and, on the contrary, even disclosed that the
petitioner was engaged in the purchase and sale of jewelry and that she used
to buy from a certain Fredo.23
Fredo was not presented as a witness and it was not established that he was a
licensed dealer or supplier of jewelry. Section 6 of P.D. No. 1612 provides
that "all stores, establishments or entitles dealing in the buy and sell of any
good, article, item, object or anything of value obtained from an unlicensed
dealer or supplier thereof, shall before offering the same for sale to the
public, secure the necessary clearance or permit from the station commander
of the Integrated National Police in the town or city where such store,
establishment or entity is located." Under the Rules and Regulations24
promulgated to carry out the provisions of Section 6, an unlicensed
dealer/supplier refers to any person, partnership, firm, corporation,
association or any other entity or establishment not licensed by the
government to engage in the business of dealing in or supplying "used
secondhand articles," which refers to any good, article, item, object or
anything of value obtained from an unlicensed dealer or supplier, regardless
of whether the same has actually or in fact been used.
We do not, however, agree with the Court of Appeals that there is
insufficient evidence to prove the actual value of the recovered articles.
As found by the trial court, the recovered articles had a total value of
P93,000.00, broken down as follows:
a) one earring and ring studded with diamonds (Exh. "C-2")
— P75,000.00
b) one set of earring (Exh. "C-3") — P15,000.00
c) one gold chain with crucifix (Exh. "C-4") — P3,000.00
These findings are based on the testimony of Mr. Encarnacion 25
and on Exhibit "C,"26 a list of the items which were taken by the
robbers on 12 February 1988, together with the corresponding
valuation thereof. On cross-examination, Mr. Encarnacion re-
affirmed his testimony on direct examination that the value of the
 pieces of jewelry described in Exhibit "C-2" is P75,000.0027 and double jeopardy when the following requisites concur: (1) the first jeopardy
that the value of the items described in Exhibit "C-3" is P15,000.00, must have attached prior to the second, (2) the first jeopardy must have
although he admitted that only one earring — and not the pair — was validly been terminated, and (3) the second jeopardy must be for the same
recovered. 28 The cross-examination withheld any question on the offense as that in the first.29 Such a concurrence would not occur assuming
gold chain with crucifix described in Exhibit "C-4." In view, that the case was remanded to the trial court.
however, of the admission that only one earring was recovered of the
jewelry described in Exhibit "C-3," it would be reasonable to reduce WHEREFORE, the instant petition is partly GRANTED by setting aside the
the value from P15,000.00 to P7,500.00. Accordingly, the total value challenged decision of the Court of Appeals in CA-G.R. CR No. 11024
of the pieces of jewelry displayed for sale by the petitioner and insofar as it sets aside the penalty imposed by Branch 20 of the Regional
established to be part of the proceeds of the robbery on 12 February Trial Court of Manila in Criminal Case No. 88-64954 and orders the remand
1988 would be P87,000.00. of the case for the trial court to receive evidence with respect to the correct
value of the properties involved. The decision of the Regional Trial Court is
Section 3(a) of P.D. No. 1612 provides that the penalty of prision mayor AFFIRMED subject to the modification of the penalty which is hereby
shall be imposed upon the accused if the value of the property involved is reduced to an indeterminate penalty ranging from Ten (10) years and One (1)
more than P12,000.00 but does not exceed P22,000.00, and if the value of day of Prision Mayor maximum as minimum to Eighteen (18) years and Five
such property exceeds the latter sum, the penalty of prision mayor should be (5) months of Reclusion Temporal maximum as maximum, with the
imposed in its maximum period, adding one year for each additional accessory penalties of the latter.
P10,000.00; the total penalty which may be imposed, however, shall not
exceed twenty years. In such cases, the penalty shall be termed reclusion SO ORDERED.
temporal and the accessory penalty pertaining thereto provided in the
Revised Penal Code shall also be imposed. The maximum penalty that can be Cruz, Bellosillo, Quiason and Kapunan, JJ., concur.
imposed in this case would then be eighteen (18) years and five (5) months,
which is within the range of reclusion temporal maximum. Applying the
Indeterminate Sentence law which allows the imposition of an indeterminate
penalty which, with respect to offenses penalized by a special law, shall
range from a minimum which shall not be lower than the minimum
prescribed by the special law to a maximum which should not exceed the
maximum provided therein, the petitioner can thus be sentenced to an
indeterminate penalty ranging from ten (10) years and one (1) day of prision
mayor maximum, as minimum to eighteen (18) years and five (5) months of
reclusion temporal maximum as maximum, with the accessory penalties
corresponding to the latter.

In the light of the foregoing, the Court of Appeals erred in setting aside the
penalty imposed by the trial court and in remanding the case to the trial court
for further reception of evidence to determine the actual value of the pieces
of jewelry recovered from the petitioner and for the imposition of the
appropriate penalty.

We do not agree with the petitioner's contention, though, that a remand for
further reception of evidence would place her in double jeopardy. There is