G.R. No.

189158

JAMES IENT and MAHARLIKA SCHULZE, Petitioners,

vs.
TULLETT PREBON (PHILIPPINES), INC., Respondent.

x-----------------------x

JAMES IENT and MAHARLIKA SCHULZE, Petitioners,

vs.
TULLETT PREBON (PHILIPPINES), INC., Respondent.

DECISION

LEONARDO-DE CASTRO, J.:

In these consolidated Petitions for Review under Rule 45 of the Rules of Court, petitioners
James A. Ient (Ient) and Maharlika C. Schulze (Schulze) assail the Court of Appeals
Decision 1 dated August 12, 2009 in CA-G.R. SP No. 109094, which affirmed the Resolutions
dated April 23, 20092 and May 15, 20093 of the Secretary of Justice in LS. No. 08-J-8651. The
Secretary of Justice, through the Resolutions dated April 23, 2009 and May 15, 2009,
essentially ruled that there was probable cause to hold petitioners, in conspiracy with certain
former directors and officers of respondent Tullet Prebon (Philippines), Inc. (Tullett), criminally
liable for violation of Sections 31 and 34 in relation to Section 144 of the Corporation Code.

From an assiduous review of the records, we find that the relevant factual and procedural
antecedents for these petitions can be summarized as follows:

Petitioner lent is a British national and the Chief Financial Officer of Tradition Asia Pacific Pte.
Ltd. (Tradition Asia) in Singapore.4 Petitioner Schulze is a Filipino/German who does Application
Support for Tradition Financial Services Ltd. in London (Tradition London). 5 Tradition Asia and
Tradition London are subsidiaries of Compagnie Financiere Tradition and are part of the
"Tradition Group." The Tradition Group is allegedly the third largest group of Inter-dealer
Brokers (IDB) in the world while the corporate organization, of which respondent Tullett is a part,
is supposedly the second largest. In other words, the Tradition Group and Tullett are
competitors in the inter-dealer broking business. IDBs purportedly "utilize the secondary fixed
income and foreign exchange markets to execute their banks and their bank customers' orders,
trade for a profit and manage their exposure to risk, including credit, interest rate and exchange
rate risks." In the Philippines, the clientele for IDBs is mainly comprised of banks and financial
institutions.6

Tullett was the first to establish a business presence in the Philippines and had been engaged
in the inter-dealer broking business or voice brokerage here since 1995. 7 Meanwhile, on the
part of the Tradition Group, the needs of its Philippine clients were previously being serviced by
Tradition Asia in Singapore. The other IDBs in the Philippines are Amstel and Icap.8

Sometime in August 2008, in line with Tradition Group's motive of expansion and diversification
in Asia, petitioners lent and Schulze were tasked with the establishment of a Philippine
subsidiary of Tradition Asia to be known as Tradition Financial Services Philippines, Inc.
(Tradition Philippines).9 Tradition Philippines was registered with the Securities and Exchange
Commission (SEC) on September 19, 200810 with petitioners lent and Schulze, among others,
named as incorporators and directors in its Articles of Incorporation. 11

On October 15, 2008, Tullett, through one of its directors, Gordon Buchan, filed a Complaint-
Affidavit12 with the City Prosecution Office of Makati City against the officers/employees of the
Tradition Group for violation of the Corporation Code. Impleaded as respondents in the
Complaint-Affidavit were petitioners lent and Schulze, Jaime Villalon (Villalon), who was
formerly President and Managing Director of Tullett, Mercedes Chuidian (Chuidian), who was
formerly a member of Tullett's Board of Directors, and other John and Jane Does. Villalon and
Chuidian were charged with using their former positions in Tullett to sabotage said company by
orchestrating the mass resignation of its entire brokering staff in order for them to join Tradition
Philippines. With respect to Villalon, Tullett claimed that the former held several meetings
between August 22 to 25, 2008 with members ofTullett's Spot Desk and brokering staff in order
to convince them to leave the company. Villalon likewise supposedly intentionally failed to
renew the contracts of some of the brokers. On August 25, 2008, a meeting was also allegedly
held in Howzat Bar in Makati City where petitioners and a lawyer of Tradition Philippines were
present. At said meeting, the brokers of complainant Tullett were purportedly induced, en
masse, to sign employment contracts with Tradition Philippines and were allegedly instructed by
Tradition Philippines' lawyer as to how they should file their resignation letters.

Complainant also claimed that Villalon asked the brokers present at the meeting to call up
Tullett's clients to inform them that they had already resigned from the company and were
moving to Tradition Philippines. On August 26, 2008, Villalon allegedly informed Mr. Barry
Dennahy, Chief Operating Officer of Tullett Prebon in the Asia-Pacific, through electronic mail
that all of Tullett's brokers had resigned. Subsequently, on September 1, 2008, in another
meeting with lent and Tradition Philippines' counsel, indemnity contracts in favor of the resigning
employees were purportedly distributed by Tradition Philippines. According to Tullett,
respondents Villalon and Chuidian (who were still its directors or officers at the times material to
the Complaint-Affidavit) violated Sections 31 and 34 of the Corporation Code which made them
criminally liable under Section 144. As for petitioners lent and Schulze, Tullett asserted that they
conspired with Villalon and Chuidian in the latter's acts of disloyalty against the company. 13

Villalon and Chuidian filed their respective Counter-Affivadits.14

Villalon alleged that frustration with management changes in Tullett Prebon motivated his
personal decision to move from Tullett and accept the invitation of a Leonard Harvey (also
formerly an executive of Tullett) to enlist with the Tradition Group. As a courtesy to the brokers
and staff, he informed them of his move contemporaneously with the tender of his resignation
letter and claimed that his meetings with the brokers was not done in bad faith as it was but
natural, in light of their long working relationship, that he share with them his plans. The affidavit
of Engelbert Wee should allegedly be viewed with great caution since Wee was one of those
who accepted employment with Tradition Philippines but changed his mind and was
subsequently appointed Managing Director (Villalon's former position) as a prize for his return.
Villalon further argued that his resignation from Tullett was done in the exercise of his
fundamental rights to the pursuit of life and the exercise of his profession; he can freely choose
to avail of a better life by seeking greener pastures; and his actions did not fall under any of the
prohibited acts under Sections 31 and 34 of the Corporation Code. It is likewise his contention
that Section 144 of the Corporation Code applies only to violations of the Corporation Code
which do not provide for a penalty while Sections 31 and 34 already provide for the applicable
penalties for violations of said provisions - damages, accounting and restitution. Citing the
Department of Justice (DOJ) Resolution dated July 30, 2008 in UCPB v. Antiporda, Villalon
claimed that the DOJ had previously proclaimed that Section 31 is not a penal provision of law
but only the basis of a cause of action for civil liability. Thus, he concluded that there was no
probable cause that he violated the Corporation Code nor was the charge of conspiracy
properly substantiated. 15

Chuidian claimed that she left Tullett simply to seek greener pastures. She also insisted the
complaint did not allege any act on her part that is illegal or shows her participation in any
conspiracy. She merely exercised her right to exercise her chosen profession and pursue a
better life. Like Villalon, she stressed that her resignation from Tullett and subsequent transfer to
Tradition Philippines did not fall under any of the prohibited acts under Sections 31 and 34.
Section 144 of the Corporation Code purportedly only applies to provisions of said Code that do
not provide for any penalty while Sections 31 and 34 already provide for the penalties for their
violation - damages, accounting and restitution. In her view, that Section 34 provided for the
ratification of the acts of the erring corporate director, trustee or office evinced legislative intent
to exclude violation of Section 34 from criminal prosecution. She argued that Section 144 as a
penal provision should be strictly construed against the State and liberally in favor of the
accused and Tullett has failed to substantiate its charge of bad faith on her part.16

In her Counter-Affidavit, 17 petitioner Schulze denied the charges leveled against her. She
pointed out that the Corporation Code is not a "special law" within the contemplation of Article
1018 of the Revised Penal Code on the supplementary application of the Revised Penal Code to
special laws since said provision purportedly applies only to "special penal laws." She further
argued that "[s]ince the Corporation Code does not expressly provide that the provisions of the
Revised Penal Code shall be made to apply suppletorily, nor does it adopt the nomenclature of
penalties of the Revised Penal Code, the provisions of the latter cannot be made to apply
suppletorily to the former as provided for in the first sentence of Article 10 of the Revised Penal
Code."19 Thus, she concluded that a charge of conspiracy which has for its basis Article 8 of the
Revised Penal Code cannot be made applicable to the provisions of the Corporation Code.

Schulze also claimed that the resignations of Tullett's employees were done out of their own
free will without force, intimidation or pressure on her and Ient's part and were well within said
employees' right to "free choice of employment."20

For his part, petitioner lent alleged in his Counter-Affidavit that the charges against him were
merely filed to harass Tradition Philippines and prevent it from penetrating the Philippine
market. He further asserted that due to the highly specialized nature of the industry, there has
always been a regular flow of brokers between the major players. He claimed that Tradition
came to the Philippines in good faith and with a sincere desire to foster healthy competition with
the other brokers. He averred that he never forced anyone to join Tradition Philippines and the
Tullett employees' signing on with Tradition Philippines was their voluntary act since they were
discontented with the working environment in Tullett. Adopting a similar line of reasoning as
Schulze, lent believed that the Revised Penal Code could not be made suppletorily applicable to
the Corporation Code so as to charge him as a conspirator. According to lent, he merely acted
within his rights when he offered job opportunities to any interested person as it was within the
employees' rights to change their employment, especially since Article 23 of the Universal
Declaration of Human Rights (of which the Philippines is a signatory) provides that "everyone
has the right to work, to free choice of employment, to just and favorable conditions of work and
to protection against unemployment."21 He also denounced the Complaint-Affidavit and the
affidavits of Tullett employees attached thereto as self-serving or as an exaggeration/twisting of
the true events.22

In a Consolidated Reply-Affidavit23 notarized on January 22, 2009, Tullett argued that Villalon,

Chuidian, Schulze, and lent have mostly admitted the acts attributed to them in the Complaint-
Affidavit and only attempted to characterize said acts as "normal," "innocent" or "customary." It
was allegedly evident from the Counter-Affidavits that the resignation of Tullett's employees was
an orchestrated plan and not simply motivated by their seeking "greener pastures." Purported
employee movements in the industry between the major companies are irrevelant since such
movements are subject to contractual obligations. Tullett likewise denied that its working
environment was stringent and "weird." Even assuming that Villalon and Chuidian were
dissatisfied with their employment in Tullett, this would supposedly not justify nor exempt them
from violating their duties as Tullett's officers/directors. There was purportedly no violation of
their constitutional rights to liberty or to exercise their profession as such rights are not unbridled
and subject to the laws of the State. In the case of Villalon and Chuidian, they had to comply
with their duties found in Sections 31 and 34 of the Corporation Code. Tullett asserts that
Section 144 applies to the case at bar since the DOJ Resolution in UCPB is not binding as it
applies only to the parties therein and it likewise involved facts different from the present case.
Relying on Home Insurance Company v. Eastern Shipping Lines,  24 Tullett argued that Section
144 applies to all other violations of the Corporation Code without exception. Article 8 of the
Revised Penal Code on conspiracy was allegedly applicable to the Corporation Code as a
special law with a penal provision. 25

In a Supplemental Complaint-Affidavit26 likewise notarized on January 22, 2009, Tullett included

Leonard James Harvey (Harvey) in the case and alleged that it learned of Harvey's complicity
through the Counter-Affidavit of Villalon. Tullett claimed that Harvey, who was Chairman of its
Board of Directors at the time material to the Complaint, also conspired to instigate the
resignations of its employees and was an indispensable part of the sabotage committed against
it.

In his Rejoiner-Affidavit,27 lent vehemently denied that there was a pre-arranged plan to

sabotage Tullett. According to lent, Gordon Buchan of Tullett thought too highly of his employer
to believe that the Tradition Group's purpose in setting up Tradition Philippines was specifically
to sabotage Tullett. He stressed that Tradition Philippines was set up for legitimate business
purposes and Tullett employees who signed with Tradition did so out of their own free will and
without any force, intimidation, pressure or inducement on his and Schulze' s part. All he
allegedly did was confirm the rumors that the Tradition Group was planning to set up a
Philippine office. Echoing the arguments of Villalon and Chuidian, lent claimed that (a) there
could be no violation of Sections 31 and 34 of the Corporation as these sections refer to
corporate acts or corporate opportunity; (b) Section 144 of the same Code cannot be applied to
Sections 31 and 34 which already contains the penalties or remedies for their violation; and (c)
conspiracy under the Revised Penal Code cannot be applied to the Sections 31 and 34 of the
Corporation Code.

In a Resolution28 dated February 17, 2009, State Prosecutor Cresencio F. Delos Trinos, Jr.
(Prosecutor Delos Trinos), Acting City Prosecutor of Makati City, dismissed the criminal
complaints. He reasoned that:
It is our considered view that the acts ascribed [to] respondents Villalon and Chuidian did not
constitute any of the prohibited acts of directors or trustees enunciated under Section 31. Their
cited actuations certainly did not involve voting for or assenting to patently unlawful acts of
[Tullett] nor could the same be construed as gross negligence or bad faith in directing the affairs
of [Tullett]. There is also no showing that they acquired any personal or pecuniary interest in
conflict with their duty as directors of [Tullett]. Neither was there a showing that they attempted
to acquire or acquired, in violation of their duty as directors, any interest adverse to [Tullett] in
respect [to] any matter which has been reposed in them in confidence.

xxxx

The issue that respondent Villalon informed the brokers of his plan to resign from [Tullett] and to
subsequently transfer to Tradition is not in dispute. However, we are unable to agree that the
brokers were induced or coerced into resigning from [Tullett] and transferring to Tradition
themselves.x x x As the record shows, Mr. Englebert Wee and the six (6) members of the
broking staff who stand as [Tullett]'s witnesses, also initially resigned from [Tullett] and
transferred to Tradition but backed out from their contract of employment with Tradition and
opted to remain with [Tullett].

Even assuming ex gratia argumenti that the brokers were induced by the respondents or
anyone of them to leave their employment with [Tullett], such inducement may only give rise to
civil liability for damages against the respondents but no criminal liability would attach on them.
x x x.

On the alleged inducements of clients of [Tullett] to transfer to Tradition, there is no showing that
clients of [Tullett] actually transferred to Tradition. Also, the allegation that respondents
orchestrated the mass resignation of employees of [Tullett] to destroy or shut down its business
and to eliminate it from the market in order that Tradition could take its place is baseless and
speculative. Significantly, it is noted that despite the resignations of respondents Villalon and
Chuidian and the majority of the broking staff and their subsequent transfer to Tradition, the
business of [Tullet] was not destroyed or shut down. [Tullett] was neither eliminated from the
market nor its place in the market taken by Tradition. x x x

In the same vein, the "corporate opportunity doctrine" enunciated under Section 34 does not
apply herein and cannot be rightfully raised against respondents Villalon and Chuidian. Under
Section 34, a director of a corporation is prohibited from competing with the business in which
his corporation is engaged in as otherwise he would be guilty of disloyalty where profits that he
may realize will have to go to the corporate funds except if the disloyal act is ratified. Suffice it to
say that their cited acts did not involve any competition with the business of [Tullett].29

On the issue of conspiracy, Prosecutor Delos Trinos found that since Villalon and Chuidian did
not commit any acts in violation of Sections 31 and 34 of the Corporation Code, the charge of
conspiracy against Schulze and lent had no basis. As for Harvey, said Resolution noted that he
was similarly situated as Villalon and Chuidian; thus, the considerations in the latter's favor were
applicable to the former. 30 Lastly, on the applicability of Section 144 to Sections 31 and 34,
Prosecutor Delos Trinos relied on the reasoning in the DOJ Resolution dated July 30, 2008
in UCPB v. Antiporda issued by then Secretary of Justice Raul M. Gonzalez, to wit:

We maintain and reiterate the ratiocination of the Secretary of Justice in United Coconut
Planters Bank vs. Tirso Antiporda, et al., I.S. No. 2007-633 promulgated on July 30, 2008, thus
- "It must be noted that Section 144 covers only those provisions 'not otherwise specifically
penalized therein. ' In plain language, this means that the penalties under Section 144 apply
only when the other provisions of the Corporation Code do not yet provide penalties for non-
compliance therewith. "

A reading of Sections 31 and 34 shows that penalties for violations thereof are already provided
therein. Under Section 31, directors or trustees are made liable for damages that may result
from their fraudulent or illegal acts. Also, directors, trustees or officers who attempt to acquire or
acquire any interest adverse to the corporation will have to account for the profits which
otherwise would have accrued to the corporation. Section 34, on the other hand, penalizes
directors who would be guilty of disloyalty to the corporation by accounting to the corporation all
profits that they may realize by refunding the same.31

Consequently, Tullett filed a petition for review with the Secretary of Justice to assail the
foregoing resolution of the Acting City Prosecutor of Makati City. In a Resolution32 dated April
23, 2009, then Secretary of Justice Raul M. Gonzalez reversed and set aside Prosecutor Delos
Trinos's resolution and directed the latter to file the information for violation of Sections 31 and
34 in relation to Section 144 of the Corporation Code against Villalon, Chuidian, Harvey,
Schulze, and lent before the proper court. As can be gleaned from the April 23, 2009
Resolution, the Secretary of Justice ruled that:

It is evident from the case at bar that there is probable cause to indict respondents Villalon,
Chuidian and Harvey for violating Section 31 of the Corporation Code. Indeed, there is prima
facie evidence to show that the said respondents acted in bad faith in directing the affairs of
complainant. Undeniably, respondents Villalon, Chuidian and Harvey occupied positions of high
responsibility and great trust as they were members of the board of directors and corporate
officers of complainant. x x x As such, they are required to administer the corporate affairs of
complainant for the welfare and benefit of the stockholders and to exercise the best care, skill
and judgment in the management of the corporate business and act solely for the interest of the
corporation.

xxxx

Respondents Villalon and Chuidian acted with dishonesty and in fraud. They went to the extent
of having their several meetings away from complainant's office so as to secretly entice and
induce all its brokers to transfer to Tradition. Respondents Villalon and Chuidian did not entice
merely one or two employees of complainant but admittedly, the entire broking staff of the latter.
This act would lead to the sure collapse of complainant. x x x.

Further, respondents Villalon and Chuidian acquired personal and pecuniary interest in conflict
with their duties as directors of complainant. Respondents Villalon and Chuidian committed the
acts complained of in order to transfer to Tradition, to have a higher salary and position and
bring the clients and business of complainant with them. The fact that Tradition is not yet
incorporated at that time is of no consequence.

Moreover, respondents Villalon and Chuidian violated Section 34 of the Corporation Code when
they acquired business opportunity adverse to that of complainant. When respondents Villalon
and Chuidian told the brokers of complainant to convince their clients to transfer their business
to Tradition, the profits of complainant which rightly belonging to it will be transferred to a
competitor company to be headed by respondents.
The provision of Section 144 of the Corporation Code is also applicable in the case at bar as the
penal provision provided therein is made applicable to all violations of the Corporation Code, not
otherwise specifically penalized. Moreover, the factual milieu of the case entitled "Antiporda, et
al., IS No. 2007-633" is inapplicable as the facts of the above-entitled case is different.

xxxx

As for respondent Harvey's probable indictment, aside from not submitting his counter-affidavit,
the counter-affidavit of respondent Villalon showed that he is also liable as such since the idea
to transfer the employment of complainant's brokers was broached by him.

Anent respondents lent and Schulze, record revealed that they conspired with respondents
Villalon and Chuidian when they actively participated in the acts complained of. They presented
the employment contracts and indemnity agreements with the brokers of complainant in a series
of meetings held with respondents Villalon and Chuidian. Respondent lent signed the contracts
as CFO of Tradition Asia and even confirmed the transfer of respondent Villalon to Tradition.
Respondent Schulze admitted that the purpose of her sojourn in the Philippines was to assist in
the formation of Tradition. Thus, it is clear that their role in the acts complained of were
instrumental for respondents Villalon and Chuidian to violate their duties and responsibilities as
directors and officers of complainant.33

Ient and Schulze moved for reconsideration of the foregoing Resolution by the Secretary of
Justice. Meanwhile, on May 14, 2009, two Informations, one for violation of Section 31 and
another for violation of Section 34, were filed by Prosecutor Delos Trinos with the Metropolitan
Trial Court of Makati City. In a Resolution dated May 15, 2009, the Secretary of Justice denied
the motion for reconsideration filed by petitioners. Unsatisfied with this tum of events, petitioners
lent and Schulze brought the matter to the Court of Appeals via a petition for certiorari under
Rule 65 which was docketed as CA-G.R. SP No. 109094.

In a Decision dated August 12, 2009, the Court of Appeals affirmed the Secretary of Justice's
Resolutions dated April 23, 2009 and May 15, 2009, after holding that:

Respondent Secretary correctly stressed that Sections 31 and 34 must be read in the light of
the nature of the position of a director and officer of the corporation as highly imbued with trust
and confidence. Petitioners' rigid interpretation of clear-cut instances of liability serves only to
undermine the values of loyalty, honesty and fairness in managing the affairs of the corporation,
which the law vested on their position. Besides, this Court can hardly deduce abuse of
discretion on the part of respondent Secretary in considering a conflict of interest scenario from
petitioners' act of advancing the interest of an emerging competitor in the field rather than
fiercely protecting the business of their own company. As aptly pointed out by the private
respondent, the issue is not the right of the employee brokers to seek greener pastures or better
employment opportunities but the breach of fiduciary duty owed by its directors and officers.

In the commentary on the subject of duties of directors and controlling stockholders under
the Corporation Code, Campos explained:

"Fiduciary Duties; Conflict of Interest

"A director, holding as he does a position of trust, is a fiduciary of the corporation. As such, in
case of conflict of his interest with those of the corporation, he cannot sacrifice the latter without
incurring liability for his disloyal act. The fiduciary duty has many ramifications, and the
possible conflict-of-interest situations are almost limitless, each possibility posing
different problems. There will be cases where a breach of trust is clear. Thus, where a director
converts for his own use funds or property belonging to the corporation, or accepts material
benefits for exercising his powers in favor of someone seeking to do business with the
corporation, no court will allow him to keep the profit he derives from his wrongdoing. In many
other cases, however, the line of demarcation between the fiduciary relationship and a director's
personal right is not easy to define. The Code has attempted at least to lay down general
rules of conduct and although these serve as guidelines for directors to follow, the
determination as to whether in a given case the duty of loyalty has been violated has
ultimately to be decided by the court on the case's own merits." x x x.

Prescinding from the above, We agree with the Secretary of Justice that the acts complained of
in this case establish a prima facie case for violation of Sec. 31 such that the accused directors
and officers of private respondent corporation are probably guilty of breach of bad faith in
directing the affairs of the corporation. The breach of fiduciary duty as such director and
corporate office (sic) are evident from their participation in recruiting the brokers employed in the
corporation, inducing them to accept employment contracts with the newly formed firm engaged
in competing business, and securing these new hires against possible breach of contract
complaint by the corporation through indemnity contracts provided by Tradition Philippines.
Clearly, no grave abuse of discretion was committed by the respondent Secretary in reversing
the city prosecutor's dismissal of the criminal complaint and ordering the filing of the
corresponding information against the accused, including herein petitioners.

As to petitioners' contention that conspiracy had not been established by the evidence, suffice it
to state that such stance is belied by their own admission of the very acts complained of in the
Complaint-Affidavit, the defense put up by them consists merely in their common argument that
no crime was committed because private respondent's brokers had the right to resign and
transfer employment if they so decide.

It bears to reiterate that probable cause is such set of facts and circumstances which would lead
a reasonably discreet and prudent man to believe that the offense charged in the Information or
any offense included therein has been committed by the person sought to be arrested. In
determining probable cause, the average man weighs the facts and circumstances without
resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He
relies on common sense. Thus, a finding of probable cause does not require an inquiry into
whether there is sufficient evidence to procure a conviction. It is enough that it is believed that
the act or omission complained of constitutes the offense charged. Precisely, there is a trial for
the reception of evidence of the prosecution in support of the charge.

Finally, the Court finds no merit in the argument of petitioners that Sec. 144 is not applicable
since Sec. 31 already provides for liability for damages against the guilty director or corporate
officer.

"SEC. 144. Violations of the Code. - Violations of any of the provisions of this Code or its
amendments not otherwise specifically penalized therein shall be punished by a fine of not
less than one thousand (₱1,000.00) pesos but not more than ten thousand (₱10,000.00) pesos
or by imprisonment for not less than thirty (30) days but not more than five (5) years, or both, in
the discretion of the court. If the violation is committed by a corporation, the same may, after
notice and hearing, be dissolved in appropriate proceedings before the Securities and
Exchange Commission; Provided, That such dissolution shall not preclude the institution of
appropriate action against the director, trustee or officer of the corporation responsible for the
said violation; Provided, further, That nothing in this section shall be construed to repeal the
other causes for dissolution of a corporation provided in this Code." x x x.

"Damages" as the term is used in Sec. 31 cannot be deemed as punishment or penalty as this
appears in the above-cited criminal provision of the Corporation Code. Such "damage" implies
civil, rather than, criminal liability and hence does not fall under those provisions of the Code
which are not "specifically penalized" with fine or imprisonment.34

In light of the adverse ruling of the Court of Appeals, petitioners lent and Schulze filed separate
petitions for review with this Court.1âwphi1 After requiring further pleadings from the parties, the
Court directed the parties to submit their memoranda to consolidate their positions on the
issues.

At the outset, it should be noted that respondent Tullett interposed several procedural objections
which we shall dispose of first.

Anent respondent's contentions that the present petitions (assailing the issuances of the
Secretary of Justice on the question of probable cause) had become moot and academic with
the filing of the Informations in the trial court and that under our ruling in Advincula v. Court of
Appeals35the filing of a petition for certiorari with the appellate court was the improper remedy
as findings of the Secretary of Justice on probable cause must be respected, we hold that these
cited rules are not inflexible.

In Yambot v. Tuquero,36we observed that under exceptional circumstances, a petition

for certiorari assailing the resolution of the Secretary of Justice (involving an appeal of the
prosecutor's ruling on probable cause) may be allowed, notwithstanding the filing of an
information with the trial court. We reiterated the doctrine in Ching v. Secretary of Justice37that
the acts of a quasi-judicial officer may be assailed by the aggrieved party through a petition
for certiorari and enjoined (a) when necessary to afford adequate protection to the constitutional
rights of the accused; (b) when necessary for the orderly administration of justice; (c) when the
acts of the officer are without or in excess of authority; (d) where the charges are manifestly
false and motivated by the lust for vengeance; and (e) when there is clearly no prima facie case
against the accused.

In the case at bar, it is unsettling to perceive a seeming lack of uniformity in the rulings of the
Secretary of Justice on the issue of whether a violation of Section 31 entails criminal or only civil
liability and such divergent actions are explained with a terse declaration of an alleged
difference in factual milieu and nothing further. Such a state of affairs is not only offensive to
principles of fair play but also anathema to the orderly administration of justice. Indeed, we have
held that where the action of the Secretary of Justice is tainted with arbitrariness, an aggrieved
party may seek judicial review via certiorari on the ground of grave abuse of discretion. 38

We likewise cannot give credit to respondent's claim of mootness. The "moot and academic"
principle is not a magical formula that can automatically dissuade the courts in resolving a
case. 39 The Court will not hesitate to resolve the legal and constitutional issues raised to
formulate controlling principles to guide the bench, the bar, and the public, particularly on a
question capable of repetition, yet evading review.40
As for the assertion that the present petitions are dismissible due to forum shopping since they
were filed during the pendency of petitioners' motion to quash and their co-accused's motion for
judicial determination of probable cause with the trial court, we hold that there is no cause to
dismiss these petitions on such ground.

Forum shopping is an act of a party, against whom an adverse judgment or order has been
rendered in one forum, of seeking and possibly getting a favorable opinion in another
forum, other than by appeal or special civil action for certiorari. It may also involve the
institution of two or more actions or proceedings grounded on the same cause on the
supposition that one or the other court would make a favorable disposition.41 There is no forum
shopping where the suits involve different causes of action or different reliefs. 42

Jurisprudence explains that:

A motion to quash is the mode by which an accused assails, before entering his plea, the
validity of the criminal complaint or the criminal information filed against him for insufficiency on
its face in point of law, or for defect apparent on the face of the Information. The motion, as a
rule, hypothetically admits the truth of the facts spelled out in the complaint or information. The
rules governing a motion to quash are found under Rule 117 of the Revised Rules of Court.
Section 3 of this Rule enumerates the grounds for the quashal of a complaint or information. x x
x.43 (Citation omitted.)

On the other hand, the action at bar is a review on certiorari of the assailed Court of Appeals
decision wherein the main issue is whether or not the Secretary of Justice committed grave
abuse of discretion in reversing the City Prosecutor's dismissal of the criminal complaint. These
consolidated petitions may proceed regardless of whether or not there are grounds to quash the
criminal information pending in the court a quo.

Neither do we find relevant the pendency of petitioners' co-accused's motion for judicial
determination of probable cause before the trial court. The several accused in these
consolidated cases had a number of remedies available to them and they are each free to
pursue the remedy which they deem is their best option. Certainly, there is no requirement that
the different parties in a case must all choose the same remedy. We have held that even
assuming separate actions have been filed by different parties involving essentially the same
subject matter, no forum shopping is committed where the parties did not resort to multiple
judicial remedies.44 In any event, we have stated in the past that the rules on forum shopping
are not always applied with inflexibility.45

As a final point on the technical aspects of this case, we reiterate here the principle that in the
exercise of the Court’s equity jurisdiction, procedural lapses may be disregarded so that a case
may be resolved on its merits.46 Indeed, where strong considerations of substantive justice are
manifest in a petition, the strict application of the rules of procedure may be relaxed.47 This is
particularly true in these consolidated cases where legal issues of first impression have been
raised.

We now proceed to rule upon the parties' substantive arguments.

The main bone of disagreement among the parties in this case is the applicability of Section 144
of the Corporation Code to Sections 31 and 34 of the same statute such that criminal liability
attaches to violations of Sections 31 and 34. For convenient reference, we quote the
contentious provisions here:

SECTION 31. Liability of Directors, Trustees or Officers. - Directors or trustees who willfully and
knowingly vote for or assent to patently unlawful acts of the corporation or who are guilty of
gross negligence or bad faith in directing the affairs of the corporation or acquire any personal
or pecuniary interest in conflict with their duty as such directors or trustees shall be liable jointly
and severally for all damages resulting therefrom suffered by the corporation, its stockholders or
members and other persons.

When a director, trustee or officer attempts to acquire or acquires, in violation of his duty, any
interest adverse to the corporation in respect of any matter which has been reposed in him in
confidence, as to which equity imposes a disability upon him to deal in his own behalf, he shall
be liable as a trustee for the corporation and must account for the profits which otherwise would
have accrued to the corporation.

SECTION 34. Disloyalty of a Director. - Where a director, by virtue of his office, acquires for
himself a business opportunity which should belong to the corporation, thereby obtaining profits
to the prejudice of such corporation, he must account to the latter for all such profits by
refunding the same, unless his act has been ratified by a vote of the stockholders owning or
representing at least two-thirds (2/3) of the outstanding capital stock. This provision shall be
applicable, notwithstanding the fact that the director risked his own funds in the venture.

SECTION 144. Violations of the Code. - Violations of any of the provisions of this Code or its
amendments not otherwise specifically penalized therein shall be punished by a fine of not less
than one thousand (₱1,000.00) pesos but not more than ten thousand (₱10,000.00) pesos or by
imprisonment for not Jess than thirty (30) days but not more than five (5) years, or both, in the
discretion of the court. If the violation is committed by a corporation, the same may, after notice
and hearing, be dissolved in appropriate proceedings before the Securities and Exchange
Commission: Provided, That such dissolution shall not preclude the institution of appropriate
action against the director, trustee or officer of the corporation responsible for said
violation: Provided, further, That nothing in this section shall be construed to repeal the other
causes for dissolution of a corporation provided in this Code.

Petitioners posit that Section 144 only applies to the provisions of the Corporation Code or its
amendments "not otherwise specifically penalized" by said statute and should not cover
Sections 31 and 34 which both prescribe the "penalties" for their violation; namely, damages,
accounting and restitution of profits. On the other hand, respondent and the appellate court
have taken the position that the term "penalized" under Section 144 should be interpreted as
referring to criminal penalty, such as fine or imprisonment, and that it could not possibly
contemplate "civil" penalties such as damages, accounting or restitution.

As Section 144 speaks, among others, of the imposition of criminal penalties, the Court is
guided by the elementary rules of statutory construction of penal provisions. First, in all criminal
prosecutions, the existence of criminal liability for which the accused is made answerable must
be clear and certain. We have consistently held that "penal statutes are construed strictly
against the State and liberally in favor of the accused. When there is doubt on the interpretation
of criminal laws, all must be resolved in favor of the accused. Since penal laws should not be
applied mechanically, the Court must determine whether their application is consistent with the
purpose and reason of the law."48
Intimately related to the in dubio pro reo49principle is the rule of lenity. The rule applies when
the court is faced with two possible interpretations of a penal statute, one that is prejudicial to
the accused and another that is favorable to him. The rule calls for the adoption of an
interpretation which is more lenient to the accused. 50

In American jurisprudence, there are two schools of thought regarding the application of the rule
of lenity. Justice David Souter, writing for the majority in United States v. R.L.C.,51refused to
resort to the rule and held that lenity is reserved "for those situations in which a reasonable
doubt persists about a statute's intended scope even after resort to 'the language and structure,
legislative history, and motivating policies' of the statute." Justice Antonin Scalia, although
concurring in part and concurring in the judgment, argued that "it is not consistent with the rule
of lenity to construe a textually ambiguous penal statute against a criminal defendant on the
basis of legislative history... The rule of lenity, in my view, prescribes the result when a criminal
statute is ambiguous: The more lenient interpretation must prevail."52 In other words, for Justice
Scalia, textual ambiguity in a penal statute suffices for the rule of lenity to be applied. Although
foreign case law is merely persuasive authority and this Court is not bound by either legal
perspective expounded in United States v. R.L.C., said case provides a useful framework in our
own examination of the scope and application of Section 144.

After a meticulous consideration of the arguments presented by both sides, the Court comes to
the conclusion that there is textual ambiguity in Section 144; moreover, such ambiguity remains
even after an examination of its legislative history and the use of other aids to statutory
construction, necessitating the application of the rule of lenity in the case at bar.

Respondent urges this Court to strictly construe Section 144 as contemplating only penal
penalties. However, a perusal of Section 144 shows that it is not a purely penal provision. When
it is a corporation that commits a violation of the Corporation Code, it may be dissolved in
appropriate proceedings before the Securities and Exchange Commission. The involuntary
dissolution of an erring corporation is not imposed as a criminal sanction,53 but rather it is an
administrative penalty.

The ambivalence in the language of Section 144 becomes more readily apparent in comparison
to the penal provision54 in Republic Act No. 8189 (The Voter's Registration Act of 1996), which
was the subject of our decision in Romualdez v. Commission on Elections.55In that case, we
upheld the constitutionality of Section 45(j) of Republic Act No. 8189 which made any violation
of said statute a criminal offense. It is respondent's opinion that the penal clause in Section 144
should receive similar treatment and be deemed applicable to any violation of the Corporation
Code. The Court cannot accept this proposition for there are weighty reasons to distinguish this
case from Romualdez.

We find it apropos to quote Sections 45 and 46 of Republic Act No. 8189 here:

SECTION 45. Election Qffense. - The following shall be considered election offenses under

this Act:

a) to deliver, hand over, entrust or give, directly or indirectly, his voter's identification card to
another in consideration of money or other benefit or promise; or take or accept such voter's
identification card, directly or indirectly, by giving or causing the giving of money or other benefit
or making or causing the making of a promise therefor;
b) to fail, without cause, to post or give any of the notices or to make any of the reports required
under this Act;

c) to issue or cause the issuance of a voter's identification number to cancel or cause the
cancellation thereof in violation of the provisions of this Act; or to refuse the issuance of
registered voters their voter's identification card;

d) to accept an appointment, to assume office and to actually serve as a member of the Election
Registration Board although ineligible thereto; to appoint such ineligible person knowing him to
be ineligible;

e) to interfere with, impede, abscond for purposes of gain or to prevent the installation or use of
computers and devices and the processing, storage, generation and transmission of registration
data or information;

f) to gain, cause access to, use, alter, destroy, or disclose any computer data, program, system
software, network, or any computer-related devices, facilities, hardware or equipment, whether
classified or declassified;

g) failure to provide certified voters and deactivated voters list to candidates and heads or
representatives of political parties upon written request as provided in Section 30 hereof;

h) failure to include the approved application form for registration of a qualified voter in the book
of voters of a particular precinct or the omission of the name of a duly registered voter in the
certified list of voters of the precinct where he is duly registered resulting in his failure to cast his
vote during an election, plebiscite, referendum, initiative and/or recall. The presence of the form
or name in the book of voters or certified list of voters in precincts other than where he is duly
registered shall not be an excuse hereof;

i) The posting of a list of voters outside or at the door of a precinct on the day of an election,
plebiscite, referendum, initiative and/or recall and which list is different in contents from the
certified list of voters being used by the Board of Election Inspectors; and

j) Violation of any of the provisions of this Act.

SECTION 46. Penalties. - - Any person found guilty of any Election offense under this Act shall
be punished with imprisonment of not less than one (1) year but not more than six (6) years and
shall not be subject to probation. In addition, the guilty party shall be sentenced to suffer
disqualification to hold public office and deprivation of the right of suffrage. If he is a foreigner,
he shall be deported after the prison term has been served. Any political party found guilty shall
be sentenced to pay a fine of not less than One hundred thousand pesos (₱100,000) but not
more than Five hundred thousand pesos (₱500,000).

The crux of the Court's ruling in Romualdez is that, from the wording of Section 450), there is a
clear legislative intent to treat as an election offense any violation of the provisions of Republic
Act No. 8189. For this reason, we do not doubt that Section 46 contemplates the term "penalty"
primarily in the criminal law or punitive concept of the term.

There is no provision in the Corporation Code using similarly emphatic language that evinces a
categorical legislative intent to treat as a criminal offense each and every violation of that law.
Consequently, there is no compelling reason for the Court to construe Section 144 as similarly
employing the term "penalized" or "penalty" solely in terms of criminal liability.

In People v. Temporada,  56 we held that in interpreting penal laws, "words are given their
ordinary meaning and that any reasonable doubt about the meaning is decided in favor of
anyone subjected to a criminal statute." Black's Law Dictionary recognizes the numerous
conceptions of the term penalty and discusses in part that it is "[a]n elastic term with many
different shades of meaning; it involves idea of punishment, corporeal or pecuniary, or civil or
criminal, although its meaning is generally confined to pecuniary punishment."57 Persuasively,
in Smith v. Doe,58the U.S. Supreme Court, interpreting a statutory provision that covers both
punitive and non-punitive provisions, held that:

The location and labels of a statutory provision do not by themselves transform a civil remedy
into a criminal one. In 89 Firearms, the Court held a forfeiture provision to be a civil sanction
even though the authorizing statute was in the criminal code. The Court rejected the argument
that the placement demonstrated Congress' "intention to create an additional criminal sanction,"
observing that "both criminal and civil sanctions may be labeled 'penalties.'" (Emphasis
supplied.)

Giving a broad and flexible interpretation to the term "penalized" in Section 144 only has utility if
there are provisions in the Corporation Code that specify consequences other than "penal" or
"criminal" for violation of, or non-compliance with, the tenets of the Code. Petitioners point to the
civil liability prescribed in Sections 31 and 34. Aside from Sections 31 and 34, we consider
these provisions of interest:

SECTION 21. Corporation by Estoppel. - All persons who assume to act as a corporation

knowing it to be without authority to do so shall be liable as general partners for all
debts, liabilities and damages incurred or arising as a result thereof: Provided,
however, That when any such ostensible corporation is sued on any transaction entered by it as
a corporation or on any tort committed by it as such, it shall not be allowed to use as a defense
its lack of corporate personality.

One who assumes an obligation to an ostensible corporation as such, cannot resist

performance thereof on the ground that there was in fact no corporation.

SECTION 22. Effects of non-use of corporate charter and continuous inoperation of a

corporation. - If a corporation does not formally organize and commence the transaction
of its business or the construction of its works within two (2) years from the date of its
incorporation, its corporate powers cease and the corporation shall be deemed
dissolved. However, if a corporation has commenced the transaction of its business but
subsequently becomes continuously inoperative for a period of at least five (5) years, the same
shall be a ground for the suspension or revocation of its corporate franchise or certificate of
incorporation.

This provision shall not apply if the failure to organize, commence the transaction of its business
or the construction of its works, or to continuously operate is due to causes beyond the control
of the corporation as may be determined by the Securities and Exchange Commission.

SECTION 65. Liability of directors for watered stocks. - Any director or officer of a

corporation consenting to the issuance of stocks for a consideration less than its par or
issued value or for a consideration in any form other than cash, valued in excess of its
fair value, or who, having knowledge thereof, does not forthwith express his objection in
writing and file the same with the corporate secretary, shall be solidarily liable with the
stockholder concerned to the corporation and its creditors for the difference between the
fair value received at the time of issuance of the stock and the par or issued value of the
same.

SECTION 66. Interest on unpaid subscriptions. - Subscribers for stock shall pay to the

corporation interest on all unpaid subscriptions from the date of subscription, if so required
by, and at the rate of interest fixed in, the by-laws. If no rate of interest is fixed in the bylaws,
such rate shall be deemed to be the legal rate.

SECTION 67. Payment of balance of subscription. - Subject to the provisions of the contract of

subscription, the board of directors of any stock corporation may at any time declare due and
payable to the corporation unpaid subscriptions to the capital stock and may collect the same or
such percentage of said unpaid subscriptions, in either case with interest accrued, if any, as it
may deem necessary.

Payment of any unpaid subscription or any percentage thereof, together with the interest
accrued, if any, shall be made on the date specified in the contract of subscription or on the date
stated in the call made by the board. Failure to pay on such date shall render the entire
balance due and payable and shall make the stockholder liable for interest at the legal
rate on such balance, unless a different rate of interest is provided in the by-laws,
computed from such date until full payment. If within thirty (30) days from the said date no
payment is made, all stocks covered by said subscription shall thereupon become delinquent
and shall be subject to sale as hereinafter provided, unless the board of directors orders
otherwise.

SECTION 74. Books to be kept; stock transfer agent. - Every corporation shall, at its principal
office, keep and carefully preserve a record of all business transactions, and minutes of all
meetings of stockholders or members, or of the board of directors or trustees, in which shall be
set forth in detail the time and place of holding the meeting, how authorized, the notice given,
whether the meeting was regular or special, if special its object, those present and absent, and
every act done or ordered done at the meeting. Upon the demand of any director, trustee,
stockholder or member, the time when any director, trustee, stockholder or member entered or
left the meeting must be noted in the minutes; and on a similar demand,
the yeas and nays must be taken on any motion or proposition, and a record thereof carefully
made. The protest of any director, trustee, stockholder or member on any action or proposed
action must be recorded in full on his demand.

The records of all business transactions of the corporation and the minutes of any meeting shall
be open to the inspection of any director, trustee, stockholder or member of the corporation at
reasonable hours on business days and he may demand, in writing, for a copy of excerpts from
said records or minutes, at his expense.

Any officer or agent of the corporation who shall refuse to allow any director, trustee,
stockholder or member of the corporation to examine and copy excerpts from its records
or minutes, in accordance with the provisions of this Code, shall be liable to such
director, trustee, stockholder or member for damages, and in addition, shall be guilty of
an offense which shall be punishable under Section 144 of this Code: Provided, That if
such refusal is pursuant to a resolution or order of the board of directors or trustees, the liability
under this section for such action shall be imposed upon the directors or trustees who voted for
such refusal: and Provided, further, That it shall be a defense to any action under this section
that the person demanding to examine and copy excerpts from the corporation's records and
minutes has improperly used any information secured through any prior examination of the
records or minutes of such corporation or of any other corporation, or was not acting in good
faith or for a legitimate purpose in making his demand.

Stock corporations must also keep a book to be known as the "stock and transfer book", in
which must be kept a record of all stocks in the names of the stockholders alphabetically
arranged; the installments paid and unpaid on all stock for which subscription has been made,
and the date of payment of any installment; a statement of every alienation, sale or transfer of
stock made, the date thereof, and by and to whom made; and such other entries as the by-laws
may prescribe. The stock and transfer book shall be kept in the principal office of the
corporation or in the office of its stock transfer agent and shall be open for inspection of any
director or stockholder of the corporation at reasonable hours on business days.

No stock transfer agent or one engaged principally in the business of registering transfer of
stocks in behalf of a stock corporation shall be allowed to operate in the Philippines unless he
secures a license from the Securities and Exchange Commission and pays a fee as may be
fixed by the Commission, which shall be renewed annually: Provided, That a stock corporation
is not precluded from performing or making transfer of its own stocks, in which case all the rules
and regulations imposed on stock transfer agents, except the payment of a license fee herein
provided, shall be applicable.

Section 22 imposes the penalty of involuntary dissolution for non-use of corporate charter. The
rest of the above-quoted provisions, like Sections 31 and 34, provide for civil or pecuniary
liabilities for the acts covered therein but what is significant is the fact that, of all these
provisions that provide for consequences other than penal, only Section 74 expressly states that
a violation thereof is likewise considered an offense under Section 144. If respondent and the
Court of Appeals are correct, that Section 144 automatically imposes penal sanctions on
violations of provisions for which no criminal penalty was imposed, then such language in
Section 74 defining a violation thereof as an offense would have been superfluous. There would
be no need for legislators to clarify that, aside from civil liability, violators of Section 7 4 are
exposed to criminal liability as well. We agree with petitioners that the lack of specific language
imposing criminal liability in Sections 31 and 34 shows legislative intent to limit the
consequences of their violation to the civil liabilities mentioned therein. Had it been the intention
of the drafters of the law to define Sections 31 and 34 as offenses, they could have easily
included similar language as that found in Section 74.

If we were to employ the same line of reasoning as the majority in United States v.
R.L.C., would the apparent ambiguities in the text of the Corporation Code disappear with an
analysis of said statute's legislative history as to warrant a strict interpretation of its provisions?
The answer is a negative.

In his sponsorship speech of Cabinet Bill (C.B.) No. 3 (the bill that was enacted into the
Corporation Code), then Minister Estelito Mendoza highlighted Sections 31 to 34 as among the
significant innovations made to the previous statute (Act 1459 or the Corporation Law), thusly:
There is a lot of jurisprudence on the liability of directors, trustees or officers for breach of trust
or acts of disloyalty to the corporation. Such jurisprudence is not, of course, without any
ambiguity of dissent. Sections 31, 32, 33 and 34 of the code indicate in detail prohibited acts in
this area as well as consequences of the performance of such acts or failure to perform or
discharge the responsibility to direct the affairs of the corporation with utmost fidelity. 50

Alternatively stated, Sections 31 to 34 were introduced into the Corporation Code to define what
acts are covered, as well as the consequences of such acts or omissions amounting to a failure
to fulfil a director's or corporate officer's fiduciary duties to the corporation. A closer look at the
subsequent deliberations on C.B. No. 3, particularly in relation to Sections 31 and 34, would
show that the discussions focused on the civil liabilities or consequences prescribed in said
provisions themselves. We quote the pertinent portions of the legislative records:

On Section 31

(Period of Sponsorship, December 4, 1979 Session)

MR. LEGASPI. x x x.

In Section 31 page 22, it seems that the proviso is to make the directors or the trustees who
willfully and knowingly vote for or assent to patently unlawful act or guilty of gross
negligence or bad faith in directing the affairs of the corporation would be solidarily
liable with the officers concerned.

Now, would this, Your Honor, not discourage the serving of competent people as

members of the Board of Directors, considering that they might feel that in the event
things would do badly against the corporation, they might be held liable personally for
acts which should be attributed only to the corporation?

MR. MENDOZA. Your Honor will note that the directors or trustees who are held liable must be
proven to have acted willfully and knowingly, or if not willfully and knowingly, it must be proven
that they acted with gross negligence or bad faith. It must also be demonstrated that the acts
done were patently unlawful. So, the requirement for liability is somewhat serious to the point of:
in my opinion, being extreme. It will be noted that this provision does not merely require
assenting to patently unlawful acts. It does not merely require being negligent. The provision
requires that they assent to patently unlawful acts willfully and with knowledge of the illegality of
the act.

Now, it might be true, as Your Honor suggested, that some persons will be discouraged or
disinclined to agree to serve the Board of Directors because of this liability. But at the same time
this provision - Section 31 - is really no more than a consequence of the requirement that
the position of membership in the Board of Directors is a position of high responsibility
and great trust. Unless a provision such as this is included, then that requirement of
responsibility and trust will not be as meaningful as it should be. For after all, directors may take
the attitude that unless they themselves commit the act, they would not be liable. But the
responsibility of a director is not merely to act properly. The responsibility of a director is to
assure that the Board of Directors, which means his colleagues acting together, does not act in
a manner that is unlawful or to the prejudice of the corporation because of personal or pecuniary
interest of the directors.60 (Emphases supplied.)
(Period of Amendments, March 11, 1980 Session)

MR. MILLORA. On line 16, Section 31, referring to the phrase "patently unlawful acts." Before J
introduce my proposed amendment to delete the word "patently" is there a reason for placing
this adjective before the word "unlawful", Your Honor?

MR. ABELLO. Probably the one who prepared this original draft of Cabinet Bill No. 3 wanted to
make sure that a director or trustee is not [made] liable for an act that is not clearly unlawful, so
he used a better word than "clearly," he used the word "patently."

MR. MILLORA. So, in that case, Your Honor, a director may not be liable for certain
unlawful acts. Is that right, Your Honor?

MR. ABELLO. Yes, if it is not patently unlawful. Precisely, the use of the word "patently" is
also to give some kind of protection to the directors or trustees. Because if you will hold
the directors or trustees responsible for everything, then no one will serve as director or
trustee of any corporation. But, he is made liable so long as he willfully and knowingly votes
for or assent to patently unlawful acts of the corporation. So it is also to protect the director [or]
trustees from liability for acts that was not patently unlawful.

MR. MILLORA. With that explanation, Your Honor, I will not proceed with my proposed
amendment.61

On Section 34

(Period of Sponsorship, November 5, 1979 Session)

MR. NUÑEZ. x x x

May I go now to page 24, Section 34.

"Disloyalty of a Director -- Where a director by virtue of his office acquires for himself a business
opportunity which should belong to the corporation thereby obtaining profits to the prejudice of
the corporation, he must account to the latter for all such profits, unless his act has been ratified
by a vote of the stockholders owning or representing at least two-thirds (2/3) of the outstanding
capital stock. This provision shall be applicable notwithstanding the fact that the director risked
his own funds in the venture."

My question, Your Honor, is: is this not the so-called corporate opportunity doctrine found
in the American jurisprudence?

MR. MENDOZA. Yes, Mr. Speaker, as I stated many of the changes that have been
incorporated in the Code were drawn from jurisprudence on the matter, but even jurisprudence
on several matters or several issues relating to the Corporation Code are sometimes
ambiguous, sometimes controversial. In order, therefore, to clarify those issues, what was
done was to spell out in statutory language the rule that should be applied on those
matters and one of such examples is Section 34.
MR. NUÑEZ. Does not His Honor believe that to codify this particular document into law may
lead to absurdity or confusion as the cited doctrine is subject to many qualifications depending
on the peculiar nature of the case?

Let us suppose that there is a business opportunity that the corporation did not take advantage
of or was not interested in. Would you hold the director responsible for acquiring the interest
despite the fact that the corporation did not take advantage of or was not interested in that
particular business venture? Does not His Honor believe that this should be subject to
qualifications and should be dealt with on a case-to-case basis depending on the circumstances
of the case?

MR. MENDOZA. If a director is prudent or wise enough, then he can protect himself in such
contingency. If he is aware of a business opportunity, he can make it known to the
corporation, propose it to the corporation, and allow the corporation to reject it, after
which he, certainly, may avail of it without risk of the consequences provided for in
Section 34.

MR. NUÑEZ. I see. So that the position of Your Honor is that the matter should be
communicated to the corporation, the matter of the director acquiring the business opportunity
should be communicated to the corporation and that if it is not communicated to the corporation,
the director will be responsible. Is that the position of His Honor?

MR. MENDOZA. In my opinion it must not only be made known to the corporation; the
corporation must be formally advised and if he really would like to be assured that he is
protected against the consequences provided for in Section 34, he should take such steps
whereby the opportunity is clearly presented to the corporation and the corporation has the
opportunity to decide on whether to avail of it or not and then let the corporation reject it, after
which then he may avail of it. Under such circumstances I do not believe he would expose
himself to the consequences provided for under Section 34.

Precisely, the reason we have laid down this ruling in statutory language is that for as long as
the rule is not clarified there will be ambiguity in the matter. And directors of corporations who
may acquire knowledge of such opportunities would always be risking consequences not
knowing how the courts will later on decide such issues. But now with the statutory rule, any
director who comes to know of an opportunity that may be available to the corporation
would be aware of the consequences in case he avails of' that opportunity without giving the
corporation the privilege of deciding beforehand on whether to take advantage of it or not.

MR. NUÑEZ. Let us take the case of a corporation where, from all indications, the corporation
was aware of this business opportunity and despite this fact, Your Honor, and the failure of the
director to communicate the venture to the corporation, the director entered into the business
venture. Is the director liable, Your Honor, despite the fact that the corporation has knowledge,
Your Honor, from all indications, from all facts, from all circumstances of the case, the
corporation is aware?

MR. MENDOZA. First of all, to say that a corporation has knowledge is itself a point that can be
subject of an argument. When does a corporation have knowledge -· when its president comes
to know of the fact, when its general manager knows of the fact, when one or two of the
directors know of that fact, when a majority of the directors come to know of that fact? So that in
itself is a matter of great ambiguity, when one says it has knowledge.
That is why when I said that a prudent director, who would assure that he does not become
liable under Section 34, should not only be sure that the corporation has official knowledge,
that is, the Board of Directors, but must take steps, positive steps, which will demonstrate that
the matter or opportunity \Vas brought before the corporation for its decision whether to avail of
it or not, and the corporation rejected it.

So, under those circumstances narrated by Your Honor, it is my view that the director will be
liable, unless his acts are ratified later by the vote of stockholders holding at least 2/3 of the
outstanding capital stock.

MR. NUÑEZ. Your Honor has already raised the possible complications that may arise out of
this particular provision. My question is: how can we remedy the situation? Is there a necessity,
Your Honor, of a formal notice to the corporation that it should be placed in the agenda, in a
meeting or a special 01 regular meeting of the corporation that such a business venture exists,
that the corporation should take advantage of this business venture before a director can be
held not responsible for acquiring this business venture?

MR. MENDOZA. Well, I believe, as I have stated, Mr. Speaker, that is what a prudent director
should do. If he does not wish to be in any way handicapped in availing of business
opportunities, he should, to the same degree, be circumspect in accepting directorships in
corporations. If he wants to be completely free to avail of any opportunity which may come his
way, he should not accept the position of director in any corporation which he may anticipate
may be dealing in a business in connection with which he may acquire a certain interest.

The purpose of all these provisions is to assure that directors or corporations constantly –
not only constantly remember but actually are imposed with certain positive obligations that
at least would assure that they will discharge their responsibilities with utmost fidelity. 62

(December 5, 1979 Session)

MR. CAMARA. Thank you, Your Honor. May we go to page 24, lines 1 to 20, Section 34 -
Disloyalty of a director.

Your Honor, it is provided that a director, who by virtue of his office acquires for himself a
business opportunity which should belong to the corporation thereby obtaining profits to the
prejudice of such corporation, must account to the corporation for all such profits unless his act
has been ratified by a vote of the stockholders owning or representing at least two-thirds (2/3) of
the outstanding capital stock.

However, Your Honor, the right to ratification would serve to defeat the intention of this
provision. This is possible if the director or officer is the controlling stockholder.

It is, therefore, suggested, Your Honor, that the twenty per cent (20%) stockholding limit be
applied here in which case, over twenty per cent limit, said director or officer is disallowed to
participate in the ratification. And this is precisely the point I was driving at in the previous
section, Your Honor.

MR. ABELLO. Your Honor, I see the point that Your Honor has raised and that will be
considered by the committee at an appropriate time.
MR. CAMARA. Thank you, Your Honor.

Further, under the same provision, it is not clear as to what "account to the corporation"
means or what it includes. Is the offender liable for the profits in favor of the
corporation?

MR. ABELLO. Yes, that is what it means.

MR. CAMARA. Or he be merely made to account?

MR. ABELLO. Well, Your Honor, when the law says "'He must account to the latter for an
such profits," that means that he is liable to the corporation for such profits.

MR. CAMARA. Who gets the profits then, Your Honor?

MR. ABELLO. The corporation itself.

MR. CAMARA. The corporation?

MR. ABELLO. Correct.

MR. CAMARA. Thank you, Your Honor.

Supposing under the same section, Your Honor, the director took the opportunity after resigning
as director or officer? It is suggested, Your Honor, that this should be clarified because the
resigning director can take the opportunity of this transaction before he resigns.

MR. ABELLO. If Your Honor refers to the fact that he took that opportunity while he was a
director, Section 34, would apply. But if the action was made after his resignation as a director
of the corporation, then Section 34 would not apply. 63

(Period of Amendments, March 11, 1980 Session)

MR. CAMARA. This is on Section 34, page 24, line 15, I propose to insert between the word
"profits'' and the comma (,) the words BY REFUNDING THE SAME. So that the first sentence,
lines 11 to 18 of said section, as modified, shall read as follows:

"SEC. 34. Disloyalty of a director. - Where a director by virtue of his office acquires for himself a
business opportunity which should belong to the corporation thereby obtaining profits to the
prejudice of such corporation, he must account to the latter for all such profits BY REFUNDING
THE SAME, unless his act has been ratified by a vote of the stockholders owning or
representing at least two-thirds (2/3) of the outstanding capital stock."

The purpose of this amendment, Mr. Speaker, is to clarify as to what to account to the
corporation.

MR. ABELLO. Mr. Speaker, the committee accepts the amendment.64 (Emphases and
underscoring supplied.)
Verily, in the instances that Sections 31 and 34 were taken up on the floor, legislators did not
veer away from the civil consequences as stated within the four comers of these provisions.
Contrasted with the interpellations on Section 74 (regarding the right to inspect the corporate
records), the discussions on said provision leave no doubt that legislators intended both civil
and penal liabilities to attach to corporate officers who violate the same, as was repeatedly
stressed in the excerpts from the legislative record quoted below:

On Section 74:

(Period of Sponsorship, December 10, 1979 Session)

MR. TUPAZ. x x x I guess, Mr. Speaker, that the distinguished sponsor has in mind a particular
situation where a minority shareholder is one of the thousands of shareholders. But I present a
situation, Your Honor, where the minority is 49% owner of a corporation and here comes this
minority shareholder wanting, but a substantial minority, and yet he cannot even have access to
the records of this corporation over which he owns almost one-half because, precisely, of this
particular provision of law.65

MR. MENDOZA. He will not have access if the grounds expressed in the proviso are present. It
must also be noted, Mr. Speaker, that the provision before us would, let us say, make it very
difficult for corporate officers to act unreasonably because they are not only subject to a
suit which would compel them to allow the access to corporate records, they are
also liable for damages and are in fact guilty of a penal act under Section 143.66

MR. TUPAZ. That is correct, Your Honor.

MR. MENDOZA. So that when corporate officers deny access to a shareholder, they do so
under very serious consequences. If they should err in making that decision and it is
demonstrated that they have erred deliberately, they expose themselves to damages and
even to certain penal sanctions.

xxxx

As I said, Your Honor, I think it is fair enough to assume that persons do not act deliberately in
bad faith, that they do not act deliberately to expose themselves to damages, or to penal
sanctions. In the ultimate, I would agree that certain decisions may be unnecessarily harsh and
prejudicial. But by and large, I think, the probabilities are in favor of a decision being reasonable
and in accord with the interest of the corporation.67 (Emphases and underscoring supplied.)

Quite apart that no legislative intent to criminalize Sections 31 and 34 was manifested in the
deliberations on the Corporation Code, it is noteworthy from the same deliberations that
legislators intended to codify the common law concepts of corporate opportunity and fiduciary
obligations of corporate officers as found in American jurisprudence into said provisions. In
common law, the remedies available in the event of a breach of director's fiduciary duties to the
corporation are civil remedies. If a director or officer is found to have breached his duty of
loyalty, an injunction may be issued or damages may be awarded. 68 A corporate officer guilty of
fraud or mismanagement may be held liable for lost profits. 69 A disloyal agent may also suffer
forfeiture of his compensation. 70 There is nothing in the deliberations to indicate that drafters of
the Corporation Code intended to deviate from common law practice and enforce the fiduciary
obligations of directors and corporate officers through penal sanction aside from civil liability. On
the contrary, there appears to be a concern among the drafters of the Corporation Code that
even the imposition of the civil sanctions under Section 31 and 34 might discourage competent
persons from serving as directors in corporations.

In Crandon v. United States,71the U.S. Supreme Court had the occasion to state that:

In determining the meaning of the statute, we look not only to the particular statutory
language, but to the design of the statute as a whole and to its object and
policy. Moreover, because the governing standard is set forth in a criminal statute, it is
appropriate to apply the rule of lenity in resolving any ambiguity in the ambit of the statute's
coverage. To the extent that the language or history of [the statute] is uncertain, this "time-
honored interpretive guideline" serves to ensure both that there is fair warning of the
boundaries of criminal conduct and that legislatures, not courts, define criminal
liability. (Citations omitted; emphases supplied.)

Under the circumstances of this case, we are convinced to adopt a similar view. For this reason,
we take into account the avowed legislative policy in the enactment of the Corporation Code as
outlined in the Sponsorship Speech of Minister Mendoza:

Cabinet Bill No. 3 is entitled "The Corporation Code of the Philippines." Its consideration at this
time in the history of our nation provides a fitting occasion to remind that under our
Constitution the economic system known as "free enterprise" is recognized and
protected. We acknowledge as a democratic republic that the individual must be free and that
as a free man - "free to choose his work and to retain the fruits of his labor" - he may best
develop his capabilities and will produce and supply the economic needs of the nation.

xxxx

The formation and organization of private corporations, and I underscore private

corporations as distinguished from corporations owned or controlled by the government or any
subdivision or instrumentality thereof, gives wider dimensions to free enterprise or free
trade. For not only is the right of individuals to organize collectively recognized; the collective
organization is vested with a juridical personality distinct from their own. Thus "the skill,
dexterity, and judgment" of a nation's labor force need not be constricted in their application to
those of an individual or that which he alone may assemble but to those of a collective
organization.

While a code, such as the proposed code now before us, may appear essentially regulatory
in nature, it does not, and is not intended, to curb or stifle the use of the corporate entity
as a business organization. Rather, the proposed code recognizes the value, and seeks to
inspire confidence in the value of the corporate vehicle in the economic life of
society. 72 (Emphases supplied.)

The Corporation Code was intended as a regulatory measure, not primarily as a penal statute.
Sections 31 to 34 in particular were intended to impose exacting standards of fidelity on
corporate officers and directors but without unduly impeding them in the discharge of their work
with concerns of litigation. Considering the object and policy of the Corporation Code to
encourage the use of the corporate entity as a vehicle for economic growth, we cannot espouse
a strict construction of Sections 31 and 34 as penal offenses in relation to Section 144 in the
absence of unambiguous statutory language and legislative intent to that effect.
When Congress intends to criminalize certain acts it does so in plain, categorical language,
otherwise such a statute would be susceptible to constitutional attack. As earlier discussed, this
can be readily seen from the text of Section 450) of Republic Act No. 8189 and Section 74 of
the Corporation Code.

We stress that had the Legislature intended to attach penal sanctions to Sections 31 and 34 of
the Corporation Code it could have expressly stated such intent in the same manner that it did
for Section 74 of the same Code.

At this point, we dispose of some related arguments raised in the pleadings. We do not agree
with respondent Tullett that previous decisions of this Court have already settled the matter in
controversy in the consolidated cases at bar. The declaration of the Court in Home Insurance
Company v. Eastern Shipping Lines73that "[t]he prohibition against doing business without first
securing a license [under Section 133] is now given penal sanction which is also applicable to
other violations of the Corporation Code under the general provisions of Section 144 of the
Code" is unmistakably obiter dictum. We explained in another case:

An obiter dictum has been defined as an opinion expressed by a court upon some question of
law that is not necessary in the determination of the case before the court. It is a remark made,
or opinion expressed, by a judge, in his decision upon a cause by the way, that
is, incidentally or collaterally, and not directly upon the question before him, or upon a point not
necessarily involved in the determination of the cause, or introduced by way of illustration, or
analogy or argument. It does not embody the resolution or determination of the court, and
is made without argument, or full consideration of the point. It lacks the force of an
adjudication, being a mere expression of an opinion with no binding force for purposes
of res judicata.74(Emphasis supplied.)

The issue in the Home Insurance Company case was whether or not a foreign corporation
previously doing business here without a license has the capacity to sue in our courts when it
had already acquired the necessary license at the time of the filing of the complaints. The Court
ruled in the affirmative. The statement regarding the supposed penal sanction for violation of
Section 133 of the Corporation Code was not essential to the resolution of the case as none of
the parties was being made criminally liable under Section 133.

As for respondent's allusion to Genuino v. National Labor Relations Commission,  75 we find the
same unavailing. Genuino involved the appeal of an illegal dismissal case wherein it was
merely mentioned in the narration of facts that the employer-bank also filed criminal complaints
against its dismissed corporate officers for alleged violation of Section 31 in relation to Section
144 of the Corporation Code. The interpretation of said provisions of the Corporation Code in
the context of a criminal proceeding was not at issue in that case.

As additional support for its contentions, respondent cites several opinions of the SEC, applying
Section 144 to various violations of the Corporation Code in the imposition of graduated fines. In
respondent's view, these opinions show a consistent administrative interpretation on the
applicability of Section 144 to the other provisions of the Corporation Code and allegedly render
absurd petitioners' concern regarding the "over-criminalization" of the Corporation Code. We
find respondent's reliance on these SEC opinions to be misplaced. As petitioners correctly point
out, the fines imposed by the SEC in these instances of violations of the Corporation Code are
in the nature of administrative fines and are not penal in nature. Without ruling upon the
soundness of the legal reasoning of the SEC in these opinions, we note that these opinions in
fact support the view that even the SEC construes "penalty" as used in Section 144 as
encompassing administrative penalties, not only criminal sanctions. In all, these SEC issuances
weaken rather than strengthen respondent's case.

With respect to the minutiae of other arguments cited in the parties' pleadings, it is no longer
necessary for the Court to pass upon the same in light of our determination that there is no
clear, categorical legislative intent to define Sections 31 and 34 as offenses under Section 144
of the Corporation Code. We likewise refrain from resolving the question on the constitutionality
of Section 144 of the Corporation Code. It is a long standing principle in jurisprudence that
"courts will not resolve the constitutionality of a law, if the controversy can be settled on other
grounds. The policy of the courts is to avoid ruling on constitutional questions and to presume
that the acts of the political departments are valid, absent a clear and unmistakable showing to
the contrary."76

WHEREFORE, the consolidated petitions are GRANTED. The Decision dated August 12, 2009
of the Court of Appeals in CA-G.R. SP No. 109094 and the Resolutions dated April 23, 2009
and May 15, 2009 of the Secretary of Justice in I.S. No. 08-J-8651 are REVERSED and SET
ASIDE.
 [G.R. NO. 153559. June 8, 2004]

PEOPLE OF THE PHILIPPINES, Appellee, v. ANTONIO COMADRE, GEORGE COMADRE

and DANILO LOZANO, Appellants.

DECISION

PER CURIAM:

Appellants Antonio Comadre, George Comadre and Danilo Lozano were charged with Murder
with Multiple Frustrated Murder in an information which reads:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

That on or about the 6th of August 1995, at Brgy. San Pedro, Lupao, Nueva Ecija, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, with intent to kill and by means of treachery
and evident premeditation, availing of nighttime to afford impunity, and with the use of an
explosive, did there and then willfully, unlawfully and feloniously lob a hand grenade that landed
and eventually exploded at the roof of the house of Jaime Agbanlog trajecting deadly shrapnels
that hit and killed one ROBERT AGBANLOG, per the death certificate, and causing Jerry
Bullanday, Jimmy Wabe, Lorenzo Eugenio, Rey Camat, Emelita Agbanlog and Elena Agbanlog
to suffer shrapnel wounds on their bodies, per the medical certificates; thus, to the latter victims,
the accused commenced all the acts of execution that would have produced the crime of
Multiple Murder as consequences thereof but nevertheless did not produce them by reason of
the timely and able medical and surgical interventions of physicians, to the damage and
prejudice of the deceaseds heirs and the other victims.

CONTRARY TO LAW.1 ςrνll

On arraignment, appellants pleaded not guilty.2 Trial on the merits then ensued.

As culled from the records, at around 7:00 in the evening of August 6, 1995, Robert Agbanlog,
Jimmy Wabe, Gerry Bullanday,3 Rey Camat and Lorenzo Eugenio were having a drinking spree
on the terrace of the house of Roberts father, Barangay Councilman Jaime Agbanlog, situated
in Barangay San Pedro, Lupao, Nueva Ecija. Jaime Agbanlog was seated on the banister of the
terrace listening to the conversation of the companions of his son.4 ςrνll

As the drinking session went on, Robert and the others noticed appellants Antonio Comadre,
George Comadre and Danilo Lozano walking. The three stopped in front of the house. While his
companions looked on, Antonio suddenly lobbed an object which fell on the roof of the terrace.
Appellants immediately fled by scaling the fence of a nearby school.5 ςrνll

The object, which turned out to be a hand grenade, exploded ripping a hole in the roof of the
house. Robert Agbanlog, Jimmy Wabe, Gerry Bullanday, Rey Camat and Lorenzo Eugenio
were hit by shrapnel and slumped unconscious on the floor.6 They were all rushed to the San
Jose General Hospital in Lupao, Nueva Ecija for medical treatment. However, Robert Agbanlog
died before reaching the hospital.7 ςrνll

Dr. Tirso de los Santos, the medico-legal officer who conducted the autopsy on the cadaver of
Robert Agbanlog, certified that the wounds sustained by the victim were consistent with the
injuries inflicted by a grenade explosion and that the direct cause of death was hypovolemic
shock due to hand grenade explosion.8 The surviving victims, Jimmy Wabe, Rey Camat, Jaime
Agbanlog and Gerry Bullanday sustained shrapnel injuries.9 ςrνll

SPO3 John Barraceros of the Lupao Municipal Police Station, who investigated the scene of the
crime, recovered metallic fragments at the terrace of the Agbanlog house. These fragments
were forwarded to the Explosive Ordinance Disposal Division in Camp Crame, Quezon City,
where SPO2 Jesus Q. Mamaril, a specialist in said division, identified them as shrapnel of an
MK2 hand grenade.10 ςrνll

Denying the charges against him, appellant Antonio Comadre claimed that on the night of
August 6, 1995, he was with his wife and children watching television in the house of his father,
Patricio, and his brother, Rogelio. He denied any participation in the incident and claimed that
he was surprised when three policemen from the Lupao Municipal Police Station went to his
house the following morning of August 7, 1995 and asked him to go with them to the police
station, where he has been detained since.11 ςrνll

Appellant George Comadre, for his part, testified that he is the brother of Antonio Comadre and
the brother-in-law of Danilo Lozano. He also denied any involvement in the grenade-throwing
incident, claiming that he was at home when it happened. He stated that he is a friend of Rey
Camat and Jimmy Wabe, and that he had no animosity towards them whatsoever. Appellant
also claimed to be in good terms with the Agbanlogs so he has no reason to cause them any
grief.12 ςrνll

Appellant Danilo Lozano similarly denied any complicity in the crime. He declared that he was at
home with his ten year-old son on the night of August 6, 1995. He added that he did not see
Antonio and George Comadre that night and has not seen them for quite sometime, either
before or after the incident. Like the two other appellants, Lozano denied having any
misunderstanding with Jaime Agbanlog, Robert Agbanlog and Jimmy Wabe.13 ςrνll

Antonios father, Patricio, and his wife, Lolita, corroborated his claim that he was at home
watching television with them during the night in question.14 Josie Comadre, Georges wife,
testified that her husband could not have been among those who threw a hand grenade at the
house of the Agbanlogs because on the evening of August 6, 1995, they were resting inside
their house after working all day in the farm.15 ςrνll

After trial, the court a quo gave credence to the prosecutions evidence and convicted appellants
of the complex crime of Murder with Multiple Attempted Murder,16 the dispositive portion of
which states:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

WHEREFORE, in view of the foregoing, judgment is hereby

rendered:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

1.Finding accused Antonio Comadre, George Comadre and Danilo Lozano GUILTY beyond
reasonable doubt of the complex crime of Murder with Multiple Attempted Murder and
sentencing them to suffer the imposable penalty of death;chanroblesvirtuallawlibrary

2.Ordering Antonio Comadre, George Comadre and Danilo Lozano to pay jointly and severally
the heirs of Robert Agbanlog P50,000.00 as indemnification for his death, P35,000.00 as
compensatory damages and P20,000.00 as moral damages;chanroblesvirtuallawlibrary
3.Ordering accused Antonio Comadre, George Comadre and Danilo Lozano to pay jointly and
severally Jimmy Wabe, Rey Camat, Gerry Bullanday and Jaime Agbanlog P30,000.00 as
indemnity for their attempted murder.

Costs against the accused.

SO ORDERED.

Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended.
Appellants contend that the trial court erred:(1) when it did not correctly and judiciously interpret
and appreciate the evidence and thus, the miscarriage of justice was obviously omnipresent; (2)
when it imposed on the accused-appellants the supreme penalty of death despite the evident
lack of the quantum of evidence to convict them of the crime charged beyond reasonable doubt;
and (3) when it did not apply the law and jurisprudence for the acquittal of the accused-
appellants of the crime charged.17 ςrνll

Appellants point to the inconsistencies in the sworn statements of Jimmy Wabe, Rey Camat,
Lorenzo Eugenio and Gerry Bullanday in identifying the perpetrators. Wabe, Camat and
Eugenio initially executed a Sinumpaang Salaysay on August 7, 1995 at the hospital wherein
they did not categorically state who the culprit was but merely named Antonio Comadre as a
suspect. Gerry Bullanday declared that he suspected Antonio Comadre as one of the culprits
because he saw the latters ten year-old son bring something in the nearby store before the
explosion occurred.

On August 27, 1995, or twenty days later, they went to the police station to give a more detailed
account of the incident, this time identifying Antonio Comadre as the perpetrator together with
George Comadre and Danilo Lozano.

A closer scrutiny of the records shows that no contradiction actually exists, as all sworn
statements pointed to the same perpetrators, namely, Antonio Comadre, George Comadre and
Danilo Lozano. Moreover, it appears that the first statement was executed a day after the
incident, when Jimmy Wabe, Rey Camat and Lorenzo Eugenio were still in the hospital for the
injuries they sustained. Coherence could not thus be expected in view of their condition. It is
therefore not surprising for the witnesses to come up with a more exhaustive account of the
incident after they have regained their equanimity. The lapse of twenty days between the two
statements is immaterial because said period even helped them recall some facts which they
may have initially overlooked.

Witnesses cannot be expected to remember all the details of the harrowing event which
unfolded before their eyes. Minor discrepancies might be found in their testimony, but they do
not damage the essential integrity of the evidence in its material whole, nor should they reflect
adversely on the witness credibility as they erase suspicion that the same was
perjured.18 Honest inconsistencies on minor and trivial matters serve to strengthen rather than
destroy the credibility of a witness to a crime, especially so when, as in the instant case, the
crime is shocking to the conscience and numbing to the senses.19 ςrνll

Moreover, it was not shown that witnesses Jimmy Wabe, Rey Camat, Lorenzo Eugenio and
Gerry Bullanday had any motive to testify falsely against Appellants. Absent evidence showing
any reason or motive for prosecution witnesses to perjure, the logical conclusion is that no such
improper motive exists, and their testimony is thus worthy of full faith and credit.
The trial court is likewise correct in disregarding appellants defense of alibi and denial. For the
defense of alibi to prosper, the accused must prove not only that he was at some other place at
the time of the commission of the crime but also that it was physically impossible for him to be at
the locus delicti or within its immediate vicinity.20 ςrνll

Apart from testifying with respect to the distance of their houses from that of Jaime Agbanlogs
residence, appellants were unable to give any explanation and neither were they able to show
that it was physically impossible for them to be at the scene of the crime. Hence, the positive
identification of the appellants by eyewitnesses Jimmy Wabe, Jaime Agbanlog, Rey Camat and
Gerry Bullanday prevails over their defense of alibi and denial.21 ςrνll

It was established that prior to the grenade explosion, Rey Camat, Jaime Agbanlog, Jimmy
Wabe and Gerry Bullanday were able to identify the culprits, namely, appellants Antonio
Comadre, George Comadre and Danilo Lozano because there was a lamppost in front of the
house and the moon was bright.22 ςrνll

Appellants argument that Judge Bayani V. Vargas, the Presiding Judge of the Regional Trial
Court of San Jose City, Branch 38 erred in rendering the decision because he was not the judge
who heard and tried the case is not well taken.

It is not unusual for a judge who did not try a case to decide it on the basis of the record for the
trial judge might have died, resigned, retired, transferred, and so forth.23 As far back as the case
of Co Tao v. Court of Appeals24 we have held: The fact that the judge who heard the evidence is
not the one who rendered the judgment and that for that reason the latter did not have the
opportunity to observe the demeanor of the witnesses during the trial but merely relied on the
records of the case does not render the judgment erroneous. This rule had been followed for
quite a long time, and there is no reason to go against the principle now.25 ςrνll

However, the trial courts finding of conspiracy will have to be reassessed. The undisputed facts
show that when Antonio Comadre was in the act of throwing the hand grenade, George
Comadre and Danilo Lozano merely looked on without uttering a single word of encouragement
or performed any act to assist him.The trial court held that the mere presence of George
Comadre and Danilo Lozano provided encouragement and a sense of security to Antonio
Comadre, thus proving the existence of conspiracy.

We disagree.

Similar to the physical act constituting the crime itself, the elements of conspiracy must be
proven beyond reasonable doubt. Settled is the rule that to establish conspiracy, evidence of
actual cooperation rather than mere cognizance or approval of an illegal act is required.26 ςrνll

A conspiracy must be established by positive and conclusive evidence. It must be shown to

exist as clearly and convincingly as the commission of the crime itself. Mere presence of a
person at the scene of the crime does not make him a conspirator for conspiracy transcends
companionship.27 ςrνll

The evidence shows that George Comadre and Danilo Lozano did not have any participation in
the commission of the crime and must therefore be set free. Their mere presence at the scene
of the crime as well as their close relationship with Antonio are insufficient to establish
conspiracy considering that they performed no positive act in furtherance of the crime.
Neither was it proven that their act of running away with Antonio was an act of giving moral
assistance to his criminal act. The ratiocination of the trial court that their presence provided
encouragement and sense of security to Antonio, is devoid of any factual basis. Such finding is
not supported by the evidence on record and cannot therefore be a valid basis of a finding of
conspiracy.

Time and again we have been guided by the principle that it would be better to set free ten men
who might be probably guilty of the crime charged than to convict one innocent man for a crime
he did not commit.28 There being no conspiracy, only Antonio Comadre must answer for the
crime.

Coming now to Antonios liability, we find that the trial court correctly ruled that treachery
attended the commission of the crime. For treachery to be appreciated two conditions must
concur: (1) the means, method and form of execution employed gave the person attacked no
opportunity to defend himself or retaliate; and (2) such means, methods and form of execution
was deliberately and consciously adopted by the accused. Its essence lies in the adoption of
ways to minimize or neutralize any resistance, which may be put up by the offended party.

Appellant lobbed a grenade which fell on the roof of the terrace where the unsuspecting victims
were having a drinking spree. The suddenness of the attack coupled with the instantaneous
combustion and the tremendous impact of the explosion did not afford the victims sufficient time
to scamper for safety, much less defend themselves; thus insuring the execution of the crime
without risk of reprisal or resistance on their part.Treachery therefore attended the commission
of the crime.

It is significant to note that aside from treachery, the information also alleges the use of an
explosive29 as an aggravating circumstance. Since both attendant circumstances can qualify the
killing to murder under Article 248 of the Revised Penal Code,30 we should determine which of
the two circumstances will qualify the killing in this case.

When the killing is perpetrated with treachery and by means of explosives, the latter shall be
considered as a qualifying circumstance. Not only does jurisprudence31 support this view but
also, since the use of explosives is the principal mode of attack, reason dictates that this
attendant circumstance should qualify the offense instead of treachery which will then be
relegated merely as a generic aggravating circumstance.32 ςrνll

Incidentally, with the enactment on June 6, 1997 of Republic Act No. 829433 which also
considers the use of explosives as an aggravating circumstance, there is a need to make the
necessary clarification insofar as the legal implications of the said amendatory law vis--vis the
qualifying circumstance of by means of explosion under Article 248 of the Revised Penal Code
are concerned. Corollary thereto is the issue of which law should be applied in the instant case.

R.A. No. 8294 was a reaction to the onerous and anachronistic penalties imposed under the old
illegal possession of firearms law, P.D. 1866, which prevailed during the tumultuous years of the
Marcos dictatorship. The amendatory law was enacted, not to decriminalize illegal possession
of firearms and explosives, but to lower their penalties in order to rationalize them into more
acceptable and realistic levels.34 ςrνll

This legislative intent is conspicuously reflected in the reduction of the corresponding penalties
for illegal possession of firearms, or ammunitions and other related crimes under the
amendatory law. Under Section 2 of the said law, the penalties for unlawful possession of
explosives are also lowered. Specifically, when the illegally possessed explosives are used to
commit any of the crimes under the Revised Penal Code, which result in the death of a person,
the penalty is no longer death, unlike in P.D. No. 1866, but it shall be considered only as an
aggravating circumstance. Section 3 of P.D. No. 1866 as amended by Section 2 of R.A. 8294
now reads:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Section 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby further amended
to read as follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives.

The penalty of prision mayor in its maximum period to reclusion temporal and a fine of not less
than Fifty thousand pesos (P50,000.00) shall be imposed upon any person who shall unlawfully
manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s), rifle grenade(s),
and other explosives, including but not limited to pillbox, molotov cocktail bombs, fire bombs, or
other incendiary devices capable of producing destructive effect on contiguous objects or
causing injury or death to any person.

When a person commits any of the crimes defined in the Revised Penal Code or special
law with the use of the aforementioned explosives, detonation agents or incendiary
devises, which results in the death of any person or persons, the use of such explosives,
detonation agents or incendiary devices shall be considered as an aggravating
circumstance. (shall be punished with the penalty of death is DELETED.)crvll

x     x     x.

With the removal of death as a penalty and the insertion of the term xxx as an aggravating
circumstance, the unmistakable import is to downgrade the penalty for illegal possession of
explosives and consider its use merely as an aggravating circumstance.

Clearly, Congress intended R.A. No. 8294 to reduce the penalty for illegal possession of
firearms and explosives. Also, Congress clearly intended RA No. 8294 to consider as
aggravating circumstance, instead of a separate offense, illegal possession of firearms and
explosives when such possession is used to commit other crimes under the Revised Penal
Code.

It must be made clear, however, that RA No. 8294 did not amend the definition of murder under
Article 248, but merely made the use of explosives an aggravating circumstance when resorted
to in committing any of the crimes defined in the Revised Penal Code. The legislative purpose is
to do away with the use of explosives as a separate crime and to make such use merely an
aggravating circumstance in the commission of any crime already defined in the Revised Penal
Code. Thus, RA No. 8294 merely added the use of unlicensed explosives as one of the
aggravating circumstances specified in Article 14 of the Revised Penal Code. Like the
aggravating circumstance of explosion in paragraph 12, evident premeditation in paragraph 13,
or treachery in paragraph 16 of Article 14, the new aggravating circumstance added by RA No.
8294 does not change the definition of murder in Article 248.

Nonetheless, even if favorable to the appellant, R.A. No. 8294 still cannot be made applicable in
this case. Before the use of unlawfully possessed explosives can be properly appreciated as an
aggravating circumstance, it must be adequately established that the possession was illegal or
unlawful, i.e., the accused is without the corresponding authority or permit to possess. This
follows the same requisites in the prosecution of crimes involving illegal possession of
firearm35 which is a kindred or related offense under P.D. 1866, as amended. This proof does
not obtain in the present case. Not only was it not alleged in the information, but no evidence
was adduced by the prosecution to show that the possession by appellant of the explosive was
unlawful. cralawlibrary

It is worthy to note that the above requirement of illegality is borne out by the provisions of the
law itself, in conjunction with the pertinent tenets of legal hermeneutics.

A reading of the title36 of R.A. No. 8294 will show that the qualifier illegal/unlawful. ..possession
is followed by of firearms, ammunition, or explosives or instruments... Although the term
ammunition is separated from explosives by the disjunctive word or, it does not mean that
explosives are no longer included in the items which can be illegally/unlawfully possessed.In
this context, the disjunctive word or is not used to separate but to signify a succession or to
conjoin the enumerated items together.37 Moreover, Section 2 of R.A. 8294,38 subtitled: Section
3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives, clearly
refers to the unlawful manufacture, sale, or possession of explosives.

What the law emphasizes is the acts lack of authority. Thus, when the second paragraph of
Section 3, P.D. No. 1866, as amended by RA No. 8294 speaks of the use of the aforementioned
explosives, etc. as an aggravating circumstance in the commission of crimes, it refers to those
explosives, etc. unlawfully manufactured, assembled, dealt in, acquired, disposed or possessed
mentioned in the first paragraph of the same section. What is per se aggravating is the use of
unlawfully manufactured or possessed explosives. The mere use of explosives is not.

The information in this case does not allege that appellant Antonio Comadre had unlawfully
possessed or that he had no authority to possess the grenade that he used in the killing and
attempted killings. Even if it were alleged, its presence was not proven by the prosecution
beyond reasonable doubt. Rule 110 of the 2000 Revised Rules on Criminal Procedure requires
the averment of aggravating circumstances for their application.39 ςrνll

The inapplicability of R.A. 8294 having been made manifest, the crime committed is Murder
committed by means of explosion in accordance with Article 248 (3) of the Revised Penal Code.
The same, having been alleged in the Information, may be properly considered as appellant
was sufficiently informed of the nature of the accusation against him.40 ςrνll

The trial court found appellant guilty of the complex crime of murder with multiple attempted
murder under Article 48 of the Revised Penal Code, which
provides:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Art. 48. Penalty for complex crimes. When a single act constitutes two or more grave or less
grave felonies, or when an offense is a necessary means of committing the other, the penalty
for the most serious crime shall be imposed, the same to be applied in its maximum period.

The underlying philosophy of complex crimes in the Revised Penal Code, which follows the pro
reo principle, is intended to favor the accused by imposing a single penalty irrespective of the
crimes committed. The rationale being, that the accused who commits two crimes with single
criminal impulse demonstrates lesser perversity than when the crimes are committed by
different acts and several criminal resolutions.
The single act by appellant of detonating a hand grenade may quantitatively constitute a cluster
of several separate and distinct offenses, yet these component criminal offenses should be
considered only as a single crime in law on which a single penalty is imposed because the
offender was impelled by a single criminal impulse which shows his lesser degree of
perversity.41 ςrνll

Under the aforecited article, when a single act constitutes two or more grave or less grave
felonies the penalty for the most serious crime shall be imposed, the same to be applied in its
maximum period irrespective of the presence of modifying circumstances, including the generic
aggravating circumstance of treachery in this case.42 Applying the aforesaid provision of law, the
maximum penalty for the most serious crime (murder) is death. The trial court, therefore,
correctly imposed the death penalty. cralawlibrary

Three justices of the Court, however, continue to maintain the unconstitutionality of R.A. 7659
insofar as it prescribes the death penalty. Nevertheless, they submit to the ruling of the majority
to the effect that the law is constitutional and that the death penalty can be lawfully imposed in
the case at bar.

Finally, the trial court awarded to the parents of the victim Robert Agbanlog civil indemnity in the
amount of P50,000.00, P35,000.00 as compensatory damages and P20,000.00 as moral
damages. Pursuant to existing jurisprudence43 the award of civil indemnity is proper. However,
the actual damages awarded to the heirs of Robert Agbanlog should be modified, considering
that the prosecution was able to substantiate only the amount of P18,000.00 as funeral
expenses.44 ςrνll

The award of moral damages is appropriate there being evidence to show emotional suffering
on the part of the heirs of the deceased, but the same must be increased to P50,000.00 in
accordance with prevailing judicial policy.45 ςrνll

With respect to the surviving victims Jaime Agbanlog, Jimmy Wabe, Rey Camat and Gerry
Bullanday, the trial court awarded P30,000.00 each for the injuries they sustained. We find this
award inappropriate because they were not able to present a single receipt to substantiate their
claims. Nonetheless, since it appears that they are entitled to actual damages although the
amount thereof cannot be determined, they should be awarded temperate damages of
P25,000.00 each.46 ςrνll

WHEREFORE, in view of all the foregoing, the appealed decision of the Regional Trial Court of
San Jose City, Branch 39 in Criminal Case No. L-16(95) is AFFIRMED insofar as appellant
Antonio Comadre is convicted of the complex crime of Murder with Multiple Attempted Murder
and sentenced to suffer the penalty of death. He is ordered to pay the heirs of the victim the
amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P18,000.00 as
actual damages and likewise ordered to pay the surviving victims, Jaime Agbanlog, Jimmy
Wabe, Rey Camat and Gerry Bullanday, P25,000.00 each as temperate damages for the
injuries they sustained. Appellants Gregorio Comadre and Danilo Lozano are ACQUITTED for
lack of evidence to establish conspiracy, and they are hereby ordered immediately RELEASED
from confinement unless they are lawfully held in custody for another cause. Costs de oficio.

In accordance with Section 25 of Republic Act 7659 amending Article 83 of the Revised Penal
Code, upon finality of this Decision, let the records of this case be forwarded to the Office of the
President for possible exercise of pardoning power.
G.R. No. L-11676           October 17, 1916

THE UNITED STATES, plaintiff-appellee,

vs.
ANDRES PABLO, defendant-appellant.

Alfonso E. Mendoza for appellant.

Attorney-General Avanceña for appellee.

TORRES, J.:

At about noon of the 21st of October, 1915, Andres Pablo, a policeman of the municipality of
Balanga, went by order of his chief to the barrio of Tuyo to raid a jueteng game which,
according to the information lodged, was being conducted in that place; but before the said
officer arrived there the players, perhaps advised of his approach by a spy, left and ran away;
however, on his arrival at a vacant lot the defendant there found Francisco Dato and, at a short
distance away, a low table. After a search of the premises he also found thereon
a tambiolo (receptacle) and 37 bolas (balls). Notwithstanding that the officer had seen the men
Maximo Malicsi and Antonio Rodrigo leave the said lot, yet, as at first he had seen no material
proof that the game was being played, he refrained from arresting them, and on leaving the
place only arrested Francisco Daro, who had remained there.

In reporting to his chief what had occurred, the policeman presented a memorandum containing
the following statement: "In the barrio of Tuyo I raided a jueteng na bilat game, seized
a tambiolo and bolas, and saw the cabecillas Maximo MAlicsi and Antonio Rodrigo and the
gambler Francisco Dato. I saw the two cabecillas escape."

In consequence, chief of police Jose D. Reyes, on October 22, 1915, filed a complaint in the
court of justice of the peace charging the said Rodrigo, Malicsi, and Dato with having gambled
at jueteng, in violation of municipal ordinance No. 5. As a result of this complaint the accused
were arrested, but were afterwards admitted to bail.

At the hearing of the case Francisco Dato pleaded guilty. The other two accused, Maximo
Malicsi and Antonio Rodrigo, pleaded not guilty; therefore, during the trial the chief of police
presented the memorandum exhibited by the policeman Andres Pablo, who testified under oath
that on the date mentioned he and Tomas de Leon went to the said barrio to raid
a jueteng game, but that before they arrived there they saw from afar that some persons started
to run toward the hills; that when witness and his companion arrived at a vacant lot they saw
Francisco Dato and a low table there, and the table caused them to suspect that
a jueteng game was being carried on; that in fact they did find on one side of the lot
a tambiolo and 37 bolas, but that they did not see the accused Rodrigo and Malicsi on the said
lot, nor did they see them run; and that only afterwards did the witness learn that these latter
were the cabecillas or ringleaders in the jueteng game, from information given him by an
unknown person. In view of this testimony by the police officer who made the arrest and of the
other evidence adduced at the trial the court acquitted the defendants Antonio Rodrigo and
Maximo Malicsi and sentenced only Francisco Dato, as a gambler.
Before the case came to trial in the justice of the peace court the policeman Andres Pablo had
an interview and conference with the accused Malicsi and ROdrigo in the house of Valentin
Sioson. On this occasion he was instructed not to testify against Malicsi and Rodrigo, and in fact
received through Gregorio Ganzon the sum of P5.

By reason of the foregoing and after making a preliminary investigation the provincial fiscal, on
December 1, 1915, filed an information in the Court of First Instance of Bataan charging Andres
Pablo with the crime of perjury, under the provisions of section 3 of Act No. 1697. The following
is an extract from the complaint:

That on or about November 6, 1915, in the municipality of Balanga, Bataan, P.I., and
within the jurisdiction of this court, the said accused, Andres Pablo, during the hearing in
the justice of the peace court of Balanga of the criminal cause No. 787, entitled the
United States vs. Antonio Rodrigo and Maximo Malicsi, for violation of Municipal
Ordinance No. 5 of the municipality of Balanga, did, willfully, unlawfully and feloniously
affirm and swear in legal form before the justice of the peace court as follow: `We did not
there overtake the accused Antonio Rodrigo and Maximo Malicsi, nor did we even see
them run,' the said statement being utterly false, as the accused well knew that it was,
and material to the decision of the said criminal cause No. 787, United States vs.
Antonio Rodrigo and Maximo Malicsi. An act committed with violation of law.

The case came to trial and on December 28, 1915, the court rendered judgment therein
sentencing the defendant to the penalty of two years' imprisonment, to pay a fine of P100 and,
in case of insolvency, to the corresponding subsidiary imprisonment, and to pay the costs. The
defendant was also disqualified from thereafter holding any public office and from testifying in
the courts of the Philippine Islands until the said disqualification should be removed. From this
judgment he appealed.

Francisco Dato, on testifying as a witness, said that when the policemen Andres Pablo and
Tomas de Leon arrived at the place where the jueteng was being played, they found the
defendant gamblers, Malicsi and Rodrigo; that, prior to the hearing of the case in the justice of
the peace court, Malicsi and Rodrigo ordered him to call Andres Pablo, who, together with
witness, went to the house of Valentin Sioson, where they held a conference; that witness
pleaded guilty in the justice of the peace court, in fulfillment of his part of an agreement made
between himself and his two coaccused, Malicsi and Rodrigo, who promised him that they
would support his family during the time he might be a prisoner in jail; that Andres Pablo did not
know that they were gamblers, because he did not find them in the place where the game was
in progress, but that when witness was being taken to the municipal building by the policemen
he told them who the gamblers were who had run away and whom Andres Pablo could have
seen.

Maximo Malicsi corroborated the foregoing testimony and further stated that, on the arrival of
the policemen who made the arrest and while they were looking for the tambiolo, he succeeded
in escaping; that Andres Pablo had known him for a long time and could have arrested him had
he wished to do so; that prior to the hearing he and his codefendants, ROdrigo and Dato, did in
fact meet in the house of Valentin Sioson, on which occasion they agreed that they would give
the policemen Andres Pablo P20, provided witness and Rodrigo were excluded from the
charge; and that only P15 was delivered to the said Pablo, through Gregorio Ganzon. This
statement was corroborated by the latter, though he said nothing about what amount of money
he delivered to the policeman Pablo.
The defendant Andres Pablo testified under oath that, on his being asked by the justice of the
peace how he could have seen Maximo Malicsi and Antonio Rodrigo, he replied that he did not
see them at the place where the game was being conducted nor did he see them run away from
there, for he only found the table, the tambiolo, the bolas, and Francisco Dato; that he did not
surprise the game because the players ran away before he arrived on the lot where, after fifteen
minutes' search, he found only the tambiolo and the bolas; that on arriving at the place where
the game was played, they found only Francisco Dato and some women in the Street, and as
Dato had already gone away, witness' companion, the policeman Tomas de Leon, got on his
bicycle and went after him; and that he found the tambiolo at a distance of about 6 meters from
a low table standing on the lot.

From the facts above related, it is concluded that the defendant Andres Pablo, who pleaded not
guilty, falsely testified under oath in the justice of the peace court of Balanga, Bataan, in saying
he had not seen the alleged gamblers Maximo Malicsi and Antonio Rodrigo in the place where,
according to the complaint filed, the game of jueteng was being played and where the defendant
and his companion, the policeman Tomas de Leon, had found a table, tambiolo and bolas, used
in the game of jueteng, while it was proved at the trial that he did not them and did overtake
them while they were still in the place where the game was being played. But notwithstanding
his having seen them there, upon testifying in the cause prosecuted against these men and
another for gambling, he stated that he had not seen them there, knowing that he was not telling
the truth and was false to the oath he had taken, and he did so willfully and deliberately on
account of his agreement with the men, Malicsi and Rodrigo, and in consideration of a bribe of
P15 which he had received in payment for his false testimony he afterwards gave.

Francisco Dato and Gregorio Ganzon corroborated the assertion that the policeman Andres
Pablo undertook to exclude the gamblers, Malicsi and Rodrigo, from the charge and from his
testimony in consideration for P15 which he received through Gregorio Ganzon.

Andres Pablo was charged with the crime of perjury and was afterwards convicted under Act
No. 1697, which (according to the principle laid down by this court in various decisions that are
already well-settled rules of law) repealed the provisions contained in articles 318 to 324 of the
Penal Code relative to false testimony.

By the second paragraph of the final section of the last article of the Administrative Code, or Act
No. 2657, there was repealed, among the other statutes therein mentioned, the said Act No.
1697 relating to perjury, and the repealing clause of the said Administrative Code does not say
under what other penal law in force the crime of false testimony, at least, if not that of perjury,
shall be punished.

Under these circumstances, may the crime of perjury or of false testimony go unpunished, and
is there no penal sanction whatever in this country for this crime? May the truth be freely
perverted in testimony given under oath and which, for the very reason that it may save a guilty
person from punishment, may also result in the conviction and punishment of an innocent
person? If all this is not possible and is not right before the law and good morals in a society of
even mediocre culture, it must be acknowledged that it is imperatively necessary to punish the
crime of perjury or of false testimony — a crime which can produce incalculable and far-
reaching harm to society and cause infinite disturbance of social order.

The right of prosecution and punishment for a crime is one of the attributes that by a natural law
belongs to the sovereign power instinctively charged by the common will of the members of
society to look after, guard and defend the interests of the community, the individual and social
rights and the liberties of every citizen and the guaranty of the exercise of his rights.

The power to punish evildoers has never been attacked or challenged, as the necessity for its
existence has been recognized even by the most backward peoples. At times the criticism has
been made that certain penalties are cruel, barbarous, and atrocious; at other, that they are light
and inadequate to the nature and gravity of the offense, but the imposition of punishment is
admitted to be just by the whole human race, and even barbarians and savages themselves,
who are ignorant of all civilization, are no exception.lawphil.net

Notwithstanding that the said Act No. 1697 (which, as interpreted by this court in its decisions,
was deemed to have repealed the aforementioned article of the Penal Code relating to false
testimony, comprised within the term of perjury) did not expressly repeal the said articles of the
Penal Code; and as the said final article of the Administrative Code, in totally repealing Act No.
1697, does not explicitly provide that the mentioned articles of the Penal Code are also
repealed, the will of the legislation not being expressly and clearly stated with respect to the
complete or partial repeal of the said articles of the Penal Code, in the manner that it has totally
repealed the said Act No. 1697 relating its perjury; and, furthermore, as it is imperative that
society punish those of its members who are guilty of perjury or false testimony, and it cannot
be conceived that these crimes should go unpunished or be freely committed without
punishment of any kind, it must be conceded that there must be in this country some prior,
preexistent law that punishes perjury or false testimony.

There certainly are laws which deal with perjury or false testimony, like Law 7 et seq. of Title 2,
third Partida.

However, since the Penal Code went into force, the crime of false testimony has been punished
under the said articles of the said Code, which as we have already said, have not been
specifically repealed by the said Act No. 1697, but since its enactment, have not been applied,
by the mere interpretation given to them by this court in its decisions; yet, from the moment that
Act was repealed by the Administrative Code, the needs of society have made it necessary that
the said articles 318 to 324 should be deemed to be in force, inasmuch as the Administrative
Code, in repealing the said Act relating to perjury, has not explicitly provided that the said
articles of the Penal Code have likewise been repealed.

This manner of understanding and construing the statutes applicable to the crime of false
testimony or perjury is in harmony with the provision of Law 11, Title 2, Book 3, of the Novisima
Recopilacion which says::

All the laws of the kingdom, not expressly repealed by other subsequent laws, must be
literally obeyed and the excuse that they are not in use cannot avail; for the Catholic
kings and their successors so ordered in numerous laws, and so also have I ordered on
different occasions, and even though they were repealed, it is seen that they have been
revived by the decree which I issued in conformity with them although they were not
expressly designated. The council will be informed thereof and will take account of the
importance of the matter.

It is, then, assumed that the said articles of the Penal Code are in force and are properly
applicable to crimes of false testimony. Therefore, in consideration of the fact that in the case at
bar the evidence shows it to have been duly proven that the defendant, Andres Pablo, in
testifying in the cause prosecuted for gambling at jueteng, perverted the truth, for the purpose of
favoring the alleged gamblers, Maximo Malicsi and Antonio Rodrigo, with the aggravating
circumstance of the crime being committed through bribery, for it was also proved that the
defendant Pablo received P15 in order that he should make no mention of the said two
gamblers in his sworn testimony, whereby he knowingly perverted the truth, we hold that, in the
commission of the crime of false testimony, there concurred the aggravating circumstance of
price or reward, No. 3 of article 10 of the Code, with no mitigating circumstance to offset the
effects of the said aggravating one; wherefore the defendant has incurred the maximum period
of the penalty of arresto mayor in its maximum degree to prision correccional in its medium
degree, and a fine.

For the foregoing reasons, we hereby reverse the judgment appealed from and sentence
Andres Pablo to the penalty of two years four months and one day of prision correccional, to
pay a fine of 1,000 pesetas, and, in case of insolvency, to suffer the corresponding subsidiary
imprisonment, which shall not exceed one-third of the principal penalty. He shall also pay the
costs of both instances. So ordered.

Johnson, Carson, Trent and Araullo, JJ., concur.

Moreland, J., concurs in the result .
G.R. No. 448           September 20, 1901

THE UNITED STATES, complainant-appellee,

vs.
PHILIP K. SWEET, defendant-appellant.

Theofilus B. Steele, for appellant.

Office of the Solicitor-General Araneta, for appellee.

LADD, J.:

The offense charged in the complaint is punishable under the Penal Code now in force
by arresto mayor and a fine of from 325 to 3,250 pesetas. (Art. 418.) By Act No. 136 of the
United States Philippine Commission, section 56 (6), Courts of First Instance are given original
jurisdiction "in all criminal cases in which a penalty of more than six months' imprisonment or a
fine exceeding one hundred dollars may be imposed." The offense was therefore cognizable by
the court below unless the fact that the appellant was at the time of its alleged commission an
employee of the United States military authorities in the Philippine Islands, and the further fact
that the person upon whom it is alleged to have been committed was a prisoner of war in the
custody of such authorities, are sufficient to deprive it of jurisdiction. We must assume that both
these facts are true, as found, either upon sufficient evidence or upon the admissions of the
prosecuting attorney, by the court below.

Setting aside the claim that the appellant was "acting in the line of duty" at the time the alleged
offense was committed, which is not supported by the findings or by any evidence which
appears in the record, the contention that the court was without jurisdiction, as we understand it,
is reducible to two propositions: First, that an assault committed by a soldier or military
employee upon a prisoner of war is not an offense under the Penal Code; and second, that if it
is an offense under the Code, nevertheless the military character sustained by the person
charged with the offense at the time of its commission exempts him from the ordinary
jurisdiction of the civil tribunals.

As to the first proposition, it is true, as pointed out by counsel, that an assault of the character
charged in the complaint committed in time of war by a military person upon a prisoner of war is
punishable as an offense under the Spanish Code of Military Justice (art. 232), and it is also
true that under the provisions of the same Code (arts. 4, 5) the military tribunals have, with
certain exceptions which it is not material to state, exclusive cognizance of all offenses, whether
of a purely military nature or otherwise, committed by military persons. But the fact that the acts
charged in the complaint would be punishable as an offense under the Spanish military
legislation does not render them any less an offense under the article of the Penal Code above
cited. There is nothing in the language of that article to indicate that it does not apply to all
persons within the territorial jurisdiction of the law. Under articles 4 and 5 of the Code of Military
Justice above cited a military person could not be brought to trial before a civil tribunal for an
assault upon a prisoner of war, but by the commission of that offense he incurred a criminal
responsibility for which he was amenable only to the military jurisdiction. That criminal
responsibility, however, arose from an infraction of the general penal laws, although the same
acts, viewed in another aspect, might also, if committed in time of war, constitute an infraction of
the military code. We are unable to see how these provisions of the Spanish Military Code, no
longer in force here and which indeed never had any application to the Army of the United
States, can in any possible view have the effect claimed for them by counsel for the appellant.
The second question is, Does the fact that the alleged offense was committed by an employee
of the United States military authorities deprive the court of jurisdiction? We have been cited to
no provision in the legislation of Congress, and to none in the local legislation, which has the
effect of limiting, as respects employees of the United States military establishment, the general
jurisdiction conferred upon the Courts of First Instance by Act No. 136 of the United States
Philippine Commission above cited, and we are not aware of the existence of any such
provision. The case is therefore open to the application of the general principle that the
jurisdiction of the civil tribunals is unaffected by the military or other special character of the
person brought before them for trial, a principle firmly established in the law of England and
America and which must, we think, prevail under any system of jurisprudence unless controlled
by express legislation to the contrary. (United States vs. Clark, 31 Fed. Rep., 710.) The
appellant's claim that the acts alleged to constitute the offense were performed by him in the
execution of the orders of his military superiors may, if true, be available by way of defense
upon the merits in the trial in the court below, but can not under this principle affect the right of
that court to take jurisdiction of the case.

Whether under a similar state of facts to that which appears in this case a court of one of the
United States would have jurisdiction to try the offender against the State laws (see In re Fair,
100 Fed. Rep., 149), it is not necessary to consider. The present is not a case where the courts
of one government are attempting to exercise jurisdiction over the military agents or employees
of another and distinct government, because the court asserting jurisdiction here derives its
existence and powers from the same Government under the authority of which the acts alleged
to constitute the offense are claimed to have been performed.

It may be proper to add that there is no actual conflict between the two jurisdictions in the
present case nor any claim of jurisdiction on the part of the military tribunals. On the contrary it
appears from the findings of the court below that the complaint was entered by order of the
commanding general of the Division of the Philippines, a fact not important, perhaps, as regards
the technical question of jurisdiction, but which relieves the case from any practical
embarrassment which might result from a claim on the part of the military tribunals to exclusive
cognizance of the offense.

The order of the court below is affirmed with costs to the appellant.

Arellano, C.J., Torres, Willard, and Mapa, JJ., concur.

Separate Opinions

COOPER, J., concurring:

I concur in the result of the decision of the court, but am not prepared to assent to all that is said
in the opinion. An offense charged against a military officer, acting under the order of his
superior, unless the illegality of the order is so clearly shown on its face that a man of ordinary
sense and understanding would know when he heard it read or given that the order was illegal,
and when the alleged criminal act was done within the scope of his authority as such officer, in
good faith and without malice, and where the offense is against the military law — that is, such
law as relates to the discipline and efficiency of the Army, or rules and orders promulgated by
the Secretary of War to aid military officers in the proper enforcement of the custody of
prisoners — is not within the jurisdiction of the courts of the Civil Government. (In re Fair, 100
Fed. Rep., 149.) The civil courts, however, may examine the evidence for the purpose of
determining whether the act alleged to be criminal was done in the performance of duty under
the circumstances above indicated, but should cease to exercise jurisdiction upon such facts
appearing.
G.R. No. 175888               February 11, 2009

SUZETTE NICOLAS y SOMBILON, Petitioner,

vs.
ALBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; RAUL GONZALEZ, in
his capacity as Secretary of Justice; EDUARDO ERMITA, in his capacity as Executive
Secretary; RONALDO PUNO, in his capacity as Secretary of the Interior and Local
Government; SERGIO APOSTOL, in his capacity as Presidential Legal Counsel; and
L/CPL. DANIEL SMITH, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 176051               February 11, 2009

JOVITO R. SALONGA, WIGBERTO E. TAÑADA, JOSE DE LA RAMA, EMILIO C.

CAPULONG, H. HARRY L. ROQUE, JR., FLORIN HILBAY, and BENJAMIN
POZON, Petitioners,
vs.
DANIEL SMITH, SECRETARY RAUL GONZALEZ, PRESIDENTIAL LEGAL COUNSEL
SERGIO APOSTOL, SECRETARY RONALDO PUNO, SECRETARY ALBERTO ROMULO,
The Special 16th Division of the COURT OF APPEALS, and all persons acting in their
capacity, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 176222               February 11, 2009

BAGONG ALYANSANG MAKABAYAN (BAYAN), represented by Dr. Carol Araullo;

GABRIELA, represented by Emerenciana de Jesus; BAYAN MUNA, represented by Rep.
Satur Ocampo; GABRIELA WOMEN'S PARTY, represented by Rep. Liza Maza; KILUSANG
MAYO UNO (KMU), represented by Elmer Labog; KILUSANG MAGBUBUKID NG
PILIPINAS (KMP), represented by Willy Marbella; LEAGUE OF FILIPINO STUDENTS (LFS),
represented by Vencer Crisostomo; and THE PUBLIC INTEREST LAW CENTER,
represented by Atty. Rachel Pastores, Petitioners,
vs.
PRESIDENT GLORIA MACAPAGAL-ARROYO, in her capacity as concurrent Defense
Secretary, EXECUTIVE SECRETARY EDUARDO ERMITA, FOREIGN AFFAIRS
SECRETARY ALBERTO ROMULO, JUSTICE SECRETARY RAUL GONZALEZ, AND
INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO, Respondents.

DECISION

AZCUNA, J.:

These are petitions for certiorari, etc. as special civil actions and/or for review of the Decision of
the Court of Appeals in Lance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon, et al., in CA-
G.R. SP No. 97212, dated January 2, 2007.

The facts are not disputed.

Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed
Forces. He was charged with the crime of rape committed against a Filipina, petitioner herein,
sometime on November 1, 2005, as follows:

The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic Duplantis,
Keith Silkwood and Timoteo L. Soriano, Jr. of the crime of Rape under Article 266-A of the
Revised Penal Code, as amended by Republic Act 8353, upon a complaint under oath filed by
Suzette S. Nicolas, which is attached hereto and made an integral part hereof as Annex "A,"
committed as follows:

"That on or about the First (1st) day of November 2005, inside the Subic Bay Freeport Zone,
Olongapo City and within the jurisdiction of this Honorable Court, the above-named accused’s
(sic), being then members of the United States Marine Corps, except Timoteo L. Soriano, Jr.,
conspiring, confederating together and mutually helping one another, with lewd design and by
means of force, threat and intimidation, with abuse of superior strength and taking advantage of
the intoxication of the victim, did then and there willfully, unlawfully and feloniously sexually
abuse and have sexual intercourse with or carnal knowledge of one Suzette S. Nicolas, a 22-
year old unmarried woman inside a Starex Van with Plate No. WKF-162, owned by Starways
Travel and Tours, with Office address at 8900 P. Victor St., Guadalupe, Makati City, and driven
by accused Timoteo L. Soriano, Jr., against the will and consent of the said Suzette S. Nicolas,
to her damage and prejudice.

CONTRARY TO LAW."1

Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and
the United States, entered into on February 10, 1998, the United States, at its request, was
granted custody of defendant Smith pending the proceedings.

During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales to the
RTC of Makati for security reasons, the United States Government faithfully complied with its
undertaking to bring defendant Smith to the trial court every time his presence was required.

On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its Decision,
finding defendant Smith guilty, thus:

WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient evidence
against accused S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND L/CPL.
DOMINIC DUPLANTIS, all of the US Marine Corps assigned at the USS Essex, are hereby
ACQUITTED to the crime charged.

The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J.
SMITH, also of the US Marine Corps at the USS Essex, this Court hereby finds him GUILTY
BEYOND REASONABLE DOUBT of the crime of RAPE defined under Article 266-A, paragraph
1 (a) of the Revised Penal Code, as amended by R.A. 8353, and, in accordance with Article
266-B, first paragraph thereof, hereby sentences him to suffer the penalty of reclusion perpetua
together with the accessory penalties provided for under Article 41 of the same Code.

Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by the
Philippines and the United States, accused L/CPL. DANIEL J. SMITH shall serve his sentence
in the facilities that shall, thereafter, be agreed upon by appropriate Philippine and United States
authorities. Pending agreement on such facilities, accused L/CPL. DANIEL J. SMITH is hereby
temporarily committed to the Makati City Jail.

Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant SUZETTE S.

NICOLAS in the amount of ₱50,000.00 as compensatory damages plus ₱50,000.00 as moral
damages.

SO ORDERED.2

As a result, the Makati court ordered Smith detained at the Makati jail until further orders.

On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a
contingent of Philippine law enforcement agents, purportedly acting under orders of the
Department of the Interior and Local Government, and brought to a facility for detention under
the control of the United States government, provided for under new agreements between the
Philippines and the United States, referred to as the Romulo-Kenney Agreement of December
19, 2006 which states:

The Government of the Republic of the Philippines and the Government of the United States of
America agree that, in accordance with the Visiting Forces Agreement signed between our two
nations, Lance Corporal Daniel J. Smith, United States Marine Corps, be returned to U.S.
military custody at the U.S. Embassy in Manila.

(Sgd.) Kristie A. Kenney (Sgd.) Alberto G. Romulo

Representative of the United States Representative of the Republic
of America of the Philippines

DATE: 12-19-06 DATE: December 19, 2006

and the Romulo-Kenney Agreement of December 22, 2006 which states:

The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the
United States of America agree that, in accordance with the Visiting Forces Agreement signed
between the two nations, upon transfer of Lance Corporal Daniel J. Smith, United States Marine
Corps, from the Makati City Jail, he will be detained at the first floor, Rowe (JUSMAG) Building,
U.S. Embassy Compound in a room of approximately 10 x 12 square feet. He will be guarded
round the clock by U.S. military personnel. The Philippine police and jail authorities, under the
direct supervision of the Philippine Department of Interior and Local Government (DILG) will
have access to the place of detention to ensure the United States is in compliance with the
terms of the VFA.

The matter was brought before the Court of Appeals which decided on January 2, 2007, as
follows:

WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for having
become moot.3

Hence, the present actions.

The petitions were heard on oral arguments on September 19, 2008, after which the parties
submitted their memoranda.

Petitioners contend that the Philippines should have custody of defendant L/CPL Smith
because, first of all, the VFA is void and unconstitutional.

This issue had been raised before, and this Court resolved in favor of the constitutionality of the
VFA. This was in Bayan v. Zamora,4 brought by Bayan, one of petitioners in the present cases.

Against the barriers of res judicata vis-à-vis Bayan, and stare decisis vis-à-vis all the parties, the
reversal of the previous ruling is sought on the ground that the issue is of primordial importance,
involving the sovereignty of the Republic, as well as a specific mandate of the Constitution.

The provision of the Constitution is Art. XVIII, Sec. 25 which states:

Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and the United
States of America concerning Military Bases, foreign military bases, troops, or facilities shall not
be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when
the Congress so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other contracting State.

The reason for this provision lies in history and the Philippine experience in regard to the United
States military bases in the country.

It will be recalled that under the Philippine Bill of 1902, which laid the basis for the Philippine
Commonwealth and, eventually, for the recognition of independence, the United States agreed
to cede to the Philippines all the territory it acquired from Spain under the Treaty of Paris, plus a
few islands later added to its realm, except certain naval ports and/or military bases and
facilities, which the United States retained for itself.

This is noteworthy, because what this means is that Clark and Subic and the other places in the
Philippines covered by the RP-US Military Bases Agreement of 1947 were not Philippine
territory, as they were excluded from the cession and retained by the US.

Accordingly, the Philippines had no jurisdiction over these bases except to the extent allowed by
the United States. Furthermore, the RP-US Military Bases Agreement was never advised for
ratification by the United States Senate, a disparity in treatment, because the Philippines
regarded it as a treaty and had it concurred in by our Senate.

Subsequently, the United States agreed to turn over these bases to the Philippines; and with the
expiration of the RP-US Military Bases Agreement in 1991, the territory covered by these bases
were finally ceded to the Philippines.

To prevent a recurrence of this experience, the provision in question was adopted in the 1987
Constitution.

The provision is thus designed to ensure that any agreement allowing the presence of foreign
military bases, troops or facilities in Philippine territory shall be equally binding on the
Philippines and the foreign sovereign State involved. The idea is to prevent a recurrence of the
situation in which the terms and conditions governing the presence of foreign armed forces in
our territory were binding upon us but not upon the foreign State.

Applying the provision to the situation involved in these cases, the question is whether or not the
presence of US Armed Forces in Philippine territory pursuant to the VFA is allowed "under a
treaty duly concurred in by the Senate xxx and recognized as a treaty by the other contracting
State."

This Court finds that it is, for two reasons.

First, as held in Bayan v. Zamora,5 the VFA was duly concurred in by the Philippine Senate and
has been recognized as a treaty by the United States as attested and certified by the duly
authorized representative of the United States government.

The fact that the VFA was not submitted for advice and consent of the United States Senate
does not detract from its status as a binding international agreement or treaty recognized by the
said State. For this is a matter of internal United States law. Notice can be taken of the
internationally known practice by the United States of submitting to its Senate for advice and
consent agreements that are policymaking in nature, whereas those that carry out or further
implement these policymaking agreements are merely submitted to Congress, under the
provisions of the so-called Case–Zablocki Act, within sixty days from ratification.6

The second reason has to do with the relation between the VFA and the RP-US Mutual Defense
Treaty of August 30, 1951. This earlier agreement was signed and duly ratified with the
concurrence of both the Philippine Senate and the United States Senate.

The RP-US Mutual Defense Treaty states:7

MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE
UNITED STATES OF AMERICA. Signed at Washington, August 30, 1951.

The Parties of this Treaty

Reaffirming their faith in the purposes and principles of the Charter of the United Nations and
their desire to live in peace with all peoples and all governments, and desiring to strengthen the
fabric of peace in the Pacific area.

Recalling with mutual pride the historic relationship which brought their two peoples together in
a common bond of sympathy and mutual ideals to fight side-by-side against imperialist
aggression during the last war.

Desiring to declare publicly and formally their sense of unity and their common determination to
defend themselves against external armed attack, so that no potential aggressor could be under
the illusion that either of them stands alone in the Pacific area.

Desiring further to strengthen their present efforts for collective defense for the preservation of
peace and security pending the development of a more comprehensive system of regional
security in the Pacific area.
Agreeing that nothing in this present instrument shall be considered or interpreted as in any way
or sense altering or diminishing any existing agreements or understandings between the
Republic of the Philippines and the United States of America.

Have agreed as follows:

Article I. The parties undertake, as set forth in the Charter of the United Nations, to settle any
international disputes in which they may be involved by peaceful means in such a manner that
international peace and security and justice are not endangered and to refrain in their
international relation from the threat or use of force in any manner inconsistent with the
purposes of the United Nations.

Article II. In order more effectively to achieve the objective of this Treaty, the Parties separately
and jointly by self-help and mutual aid will maintain and develop their individual and collective
capacity to resist armed attack.

Article III. The Parties, through their Foreign Ministers or their deputies, will consult together
from time to time regarding the implementation of this Treaty and whenever in the opinion of
either of them the territorial integrity, political independence or security of either of the Parties is
threatened by external armed attack in the Pacific.

Article IV. Each Party recognizes that an armed attack in the Pacific area on either of the parties
would be dangerous to its own peace and safety and declares that it would act to meet the
common dangers in accordance with its constitutional processes.

Any such armed attack and all measures taken as a result thereof shall be immediately reported
to the Security Council of the United Nations. Such measures shall be terminated when the
Security Council has taken the measures necessary to restore and maintain international peace
and security.

Article V. For the purpose of Article IV, an armed attack on either of the Parties is deemed to
include an armed attack on the metropolitan territory of either of the Parties, or on the island
territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in
the Pacific.

Article VI. This Treaty does not affect and shall not be interpreted as affecting in any way the
rights and obligations of the Parties under the Charter of the United Nations or the responsibility
of the United Nations for the maintenance of international peace and security.

Article VII. This Treaty shall be ratified by the Republic of the Philippines and the United Nations
of America in accordance with their respective constitutional processes and will come into force
when instruments of ratification thereof have been exchanged by them at Manila.

Article VIII. This Treaty shall remain in force indefinitely. Either Party may terminate it one year
after notice has been given to the other party.

In withness whereof the undersigned Plenipotentiaries have signed this Treaty.

Done in duplicate at Washington this thirtieth day of August, 1951.

For the Republic of the Philippines:

(Sgd.) Carlos P. Romulo

(Sgd.) Joaquin M. Elizalde

(Sgd.) Vicente J. Francisco

(Sgd.) Diosdado Macapagal

For the United States of America:

(Sgd.) Dean Acheson

(Sgd.) John Foster Dulles

(Sgd.) Tom Connally

(Sgd.) Alexander Wiley8

Clearly, therefore, joint RP-US military exercises for the purpose of developing the capability to
resist an armed attack fall squarely under the provisions of the RP-US Mutual Defense Treaty.
The VFA, which is the instrument agreed upon to provide for the joint RP-US military exercises,
is simply an implementing agreement to the main RP-US Military Defense Treaty. The Preamble
of the VFA states:

The Government of the United States of America and the Government of the Republic of the
Philippines,

Reaffirming their faith in the purposes and principles of the Charter of the United Nations and
their desire to strengthen international and regional security in the Pacific area;

Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;

Noting that from time to time elements of the United States armed forces may visit the Republic
of the Philippines;

Considering that cooperation between the United States and the Republic of the Philippines
promotes their common security interests;

Recognizing the desirability of defining the treatment of United States personnel visiting the
Republic of the Philippines;

Have agreed as follows:9

Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not
necessary to submit the VFA to the US Senate for advice and consent, but merely to the US
Congress under the Case–Zablocki Act within 60 days of its ratification. It is for this reason that
the US has certified that it recognizes the VFA as a binding international agreement, i.e., a
treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our
Constitution.10

The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that
the presence of the US Armed Forces through the VFA is a presence "allowed under" the RP-
US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified and
concurred in by both the Philippine Senate and the US Senate, there is no violation of the
Constitutional provision resulting from such presence.

The VFA being a valid and binding agreement, the parties are required as a matter of
international law to abide by its terms and provisions.

The VFA provides that in cases of offenses committed by the members of the US Armed Forces
in the Philippines, the following rules apply:

Article V

Criminal Jurisdiction

xxx

6. The custody of any United States personnel over whom the Philippines is to exercise
jurisdiction shall immediately reside with United States military authorities, if they so request,
from the commission of the offense until completion of all judicial proceedings. United States
military authorities shall, upon formal notification by the Philippine authorities and without delay,
make such personnel available to those authorities in time for any investigative or judicial
proceedings relating to the offense with which the person has been charged. In extraordinary
cases, the Philippine Government shall present its position to the United States Government
regarding custody, which the United States Government shall take into full account. In the event
Philippine judicial proceedings are not completed within one year, the United States shall be
relieved of any obligations under this paragraph. The one year period will not include the time
necessary to appeal. Also, the one year period will not include any time during which scheduled
trial procedures are delayed because United States authorities, after timely notification by
Philippine authorities to arrange for the presence of the accused, fail to do so.

Petitioners contend that these undertakings violate another provision of the Constitution,
namely, that providing for the exclusive power of this Court to adopt rules of procedure for all
courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the transfer of custody of
an accused to a foreign power is to provide for a different rule of procedure for that accused,
which also violates the equal protection clause of the Constitution (Art. III, Sec. 1.).

Again, this Court finds no violation of the Constitution.

The equal protection clause is not violated, because there is a substantial basis for a different
treatment of a member of a foreign military armed forces allowed to enter our territory and all
other accused.11

The rule in international law is that a foreign armed forces allowed to enter one’s territory is
immune from local jurisdiction, except to the extent agreed upon. The Status of Forces
Agreements involving foreign military units around the world vary in terms and conditions,
according to the situation of the parties involved, and reflect their bargaining power. But the
principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the
sending State only to the extent agreed upon by the parties.12

As a result, the situation involved is not one in which the power of this Court to adopt rules of
procedure is curtailed or violated, but rather one in which, as is normally encountered around
the world, the laws (including rules of procedure) of one State do not extend or apply – except to
the extent agreed upon – to subjects of another State due to the recognition of extraterritorial
immunity given to such bodies as visiting foreign armed forces.

Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or
some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such
immunity like Heads of State, diplomats and members of the armed forces contingents of a
foreign State allowed to enter another State’s territory. On the contrary, the Constitution states
that the Philippines adopts the generally accepted principles of international law as part of the
law of the land. (Art. II, Sec. 2).

Applying, however, the provisions of VFA, the Court finds that there is a different treatment
when it comes to detention as against custody. The moment the accused has to be detained,
e.g., after conviction, the rule that governs is the following provision of the VFA:

Article V

Criminal Jurisdiction

xxx

Sec. 10. The confinement or detention by Philippine authorities of United States personnel shall
be carried out in facilities agreed on by appropriate Philippines and United States authorities.
United States personnel serving sentences in the Philippines shall have the right to visits and
material assistance.

It is clear that the parties to the VFA recognized the difference between custody during the trial
and detention after conviction, because they provided for a specific arrangement to cover
detention. And this specific arrangement clearly states not only that the detention shall be
carried out in facilities agreed on by authorities of both parties, but also that the detention shall
be "by Philippine authorities." Therefore, the Romulo-Kenney Agreements of December 19 and
22, 2006, which are agreements on the detention of the accused in the United States Embassy,
are not in accord with the VFA itself because such detention is not "by Philippine authorities."

Respondents should therefore comply with the VFA and negotiate with representatives of the
United States towards an agreement on detention facilities under Philippine authorities as
mandated by Art. V, Sec. 10 of the VFA.

Next, the Court addresses the recent decision of the United States Supreme Court in Medellin v.
Texas ( 552 US ___ No. 06-984, March 25, 2008), which held that treaties entered into by the
United States are not automatically part of their domestic law unless these treaties are self-
executing or there is an implementing legislation to make them enforceable.1avvphi1

On February 3, 2009, the Court issued a Resolution, thus:

"G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R. No. 176051
(Jovito R. Salonga, et al. v. Daniel Smith, et al.); and G.R. No. 176222 (Bagong Alyansang
Makabayan [BAYAN], et al. v. President Gloria Macapagal-Arroyo, et al.).

The parties, including the Solicitor General, are required to submit within three (3) days a
Comment/Manifestation on the following points:

1. What is the implication on the RP-US Visiting Forces Agreement of the recent US
Supreme Court decision in Jose Ernesto Medellin v. Texas, dated March 25, 2008, to
the effect that treaty stipulations that are not self-executory can only be enforced
pursuant to legislation to carry them into effect; and that, while treaties may comprise
international commitments, they are not domestic law unless Congress has enacted
implementing statutes or the treaty itself conveys an intention that it be "self-executory"
and is ratified on these terms?

2. Whether the VFA is enforceable in the US as domestic law, either because it is self-
executory or because there exists legislation to implement it.

3. Whether the RP-US Mutual Defense Treaty of August 30, 1951 was concurred in by
the US Senate and, if so, is there proof of the US Senate advice and consent resolution?
Peralta, J., no part."

After deliberation, the Court holds, on these points, as follows:

First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself,

because the parties intend its provisions to be enforceable, precisely because the Agreement is
intended to carry out obligations and undertakings under the RP-US Mutual Defense Treaty. As
a matter of fact, the VFA has been implemented and executed, with the US faithfully complying
with its obligation to produce L/CPL Smith before the court during the trial.

Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC
Sec. 112(b), inasmuch as it is the very purpose and intent of the US Congress that executive
agreements registered under this Act within 60 days from their ratification be immediately
implemented. The parties to these present cases do not question the fact that the VFA has been
registered under the Case-Zablocki Act.1avvphi1

In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and the
Avena decision of the International Court of Justice (ICJ), subject matter of the Medellin
decision. The Convention and the ICJ decision are not self-executing and are not registrable
under the Case-Zablocki Act, and thus lack legislative implementing authority.

Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate on
March 20, 1952, as reflected in the US Congressional Record, 82nd Congress, Second
Session, Vol. 98 – Part 2, pp. 2594-2595.

The framers of the Constitution were aware that the application of international law in domestic
courts varies from country to country.
As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF
INTERNATIONAL CRIMINAL LAW IN NATIONAL COURTS, some countries require legislation
whereas others do not.

It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec. 25,
to require the other contracting State to convert their system to achieve alignment and parity
with ours. It was simply required that the treaty be recognized as a treaty by the other
contracting State. With that, it becomes for both parties a binding international obligation and
the enforcement of that obligation is left to the normal recourse and processes under
international law.

Furthermore, as held by the US Supreme Court in Weinberger v. Rossi,13 an executive

agreement is a "treaty" within the meaning of that word in international law and constitutes
enforceable domestic law vis-à-vis the United States. Thus, the US Supreme Court in
Weinberger enforced the provisions of the executive agreement granting preferential
employment to Filipinos in the US Bases here.

Accordingly, there are three types of treaties in the American system:

1. Art. II, Sec. 2 treaties – These are advised and consented to by the US Senate in
accordance with Art. II, Sec. 2 of the US Constitution.

2. Executive–Congressional Agreements: These are joint agreements of the President

and Congress and need not be submitted to the Senate.

3. Sole Executive Agreements. – These are agreements entered into by the President.
They are to be submitted to Congress within sixty (60) days of ratification under the
provisions of the Case-Zablocki Act, after which they are recognized by the Congress
and may be implemented.

As regards the implementation of the RP-US Mutual Defense Treaty, military aid or assistance
has been given under it and this can only be done through implementing legislation. The VFA
itself is another form of implementation of its provisions.

WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals’ Decision in CA-
G.R. SP No. 97212 dated January 2, 2007 is MODIFIED. The Visiting Forces Agreement (VFA)
between the Republic of the Philippines and the United States, entered into on February 10,
1998, is UPHELD as constitutional, but the Romulo-Kenney Agreements of December 19 and
22, 2006 are DECLARED not in accordance with the VFA, and respondent Secretary of Foreign
Affairs is hereby ordered to forthwith negotiate with the United States representatives for the
appropriate agreement on detention facilities under Philippine authorities as provided in Art. V,
Sec. 10 of the VFA, pending which the status quo shall be maintained until further orders by this
Court.

The Court of Appeals is hereby directed to resolve without delay the related matters pending
therein, namely, the petition for contempt and the appeal of L/CPL Daniel Smith from the
judgment of conviction.

No costs.
G.R. No. 125865           January 28, 2000

JEFFREY LIANG (HUEFENG), petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

YNARES-SANTIAGO, J.:

Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994,
for allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was
charged before the Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of
grave oral defamation docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was
arrested by virtue of a warrant issued by the MeTC. After fixing petitioner's bail at P2,400.00 per
criminal charge, the MeTC released him to the custody of the Security Officer of ADB. The next
day, the MeTC judge received an "office of protocol" from the Department of Foreign Affairs
(DFA) stating that petitioner is covered by immunity from legal process under Section 45 of the
Agreement between the ADB and the Philippine Government regarding the Headquarters of the
ADB (hereinafter Agreement) in the country. Based on the said protocol communication that
petitioner is immune from suit, the MeTC judge without notice to the prosecution dismissed the
two criminal cases. The latter filed a motion for reconsideration which was opposed by the DFA.
When its motion was denied, the prosecution filed a petition for certiorari and mandamus with
the Regional Trial Court (RTC) of Pasig City which set aside the MeTC rulings and ordered the
latter court to enforce the warrant of arrest it earlier issued. After the motion for reconsideration
was denied, petitioner elevated the case to this Court via a petition for review arguing that he is
covered by immunity under the Agreement and that no preliminary investigation was held before
the criminal cases were filed in court.1âwphi1.nêt

The petition is not impressed with merit.

First, courts cannot blindly adhere and take on its face the communication from the DFA that
petitioner is covered by any immunity. The DFA's determination that a certain person is covered
by immunity is only preliminary which has no binding effect in courts. In receiving ex-parte the
DFA's advice and in motu propio dismissing the two criminal cases without notice to the
prosecution, the latter's right to due process was violated. It should be noted that due process is
a right of the accused as much as it is of the prosecution. The needed inquiry in what capacity
petitioner was acting at the time of the alleged utterances requires for its resolution evidentiary
basis that has yet to be presented at the proper time.1 At any rate, it has been ruled that the
mere invocation of the immunity clause does not ipso facto result in the dropping of the
charges.2

Second, under Section 45 of the Agreement which provides:

Officers and staff of the Bank including for the purpose of this Article experts and
consultants performing missions for the Bank shall enjoy the following privileges and
immunities:

a.) immunity from legal process with respect to acts performed by them in their
official capacity except when the Bank waives the immunity.
the immunity mentioned therein is not absolute, but subject to the exception that the acts was
done in "official capacity." It is therefore necessary to determine if petitioner's case falls within
the ambit of Section 45(a). Thus, the prosecution should have been given the chance to rebut
the DFA protocol and it must be accorded the opportunity to present its controverting evidence,
should it so desire.

Third, slandering a person could not possibly be covered by the immunity agreement because
our laws do not allow the commission of a crime, such as defamation, in the name of official
duty.3 The imputation of theft is ultra vires and cannot be part of official functions. It is well-
settled principle of law that a public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with malice or in bad faith or beyond the
scope of his authority or jurisdiction.4 It appears that even the government's chief legal counsel,
the Solicitor General, does not support the stand taken by petitioner and that of the DFA.

Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming
petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state except in the
case of an action relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving state outside his official functions.5 As already mentioned above, the
commission of a crime is not part of official duty.

Finally, on the contention that there was no preliminary investigation conducted, suffice it to say
that preliminary investigation is not a matter of right in cases cognizable by the MeTC such as
the one at bar.6 Being purely a statutory right, preliminary investigation may be invoked only
when specifically granted by law.7 The rule on the criminal procedure is clear that no preliminary
investigation is required in cases falling within the jurisdiction of the MeTC.8 Besides the
absence of preliminary investigation does not affect the court's jurisdiction nor does it impair the
validity of the information or otherwise render it defective.9

WHEREFORE, the petition is DENIED.

SO ORDERED.1âwphi1.nêt
G.R. Nos. 136149-51               September 19, 2000

PEOPLE OF THE PHILIPPINES, appellee,

vs.
WALPAN LADJAALAM y MIHAJIL alias "WARPAN," appellant.

DECISION

PANGANIBAN, J.:

Republic Act No. 8294 penalizes simple illegal possession of firearms, provided that the person
arrested committed "no other crime." Furthermore, if the person is held liable for murder or
homicide, illegal possession of firearms is an aggravating circumstance, but not a separate
offense. Hence, where an accused was convicted of direct assault with multiple attempted
homicide for firing an unlicensed M-14 rifle at several policemen who were about to serve a
search warrant, he cannot be held guilty of the separate offense of illegal possession of
firearms. Neither can such unlawful act be considered to have aggravated the direct assault.

The Case

Walpan Ladjaalam y Mihajil, also known as "Warpan," appeals before us the September 17,
1998 Decision1 of the Regional Trial Court (RTC) of Zamboanga City (Branch 16), which found
him guilty of three out of the four charges lodged against him.

Filed against appellant were four Informations,2 all signed by Assistant Regional State
Prosecutor Ricardo G. Cabaron and dated September 25, 1997. The first Information3 was for
maintaining a den for the use of regulated drugs. It reads as follows:

"That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, Walpan Ladjaalam being then
the owner of a residential house located at Rio Hondo,4 this City, conspiring and confederating
together, mutually aiding and assisting x x x his co-accused wife Nur-in Ladjaalam and Ahmad
Sailabbi y Hajaraini, did then and there wilfully, unlawfully and feloniously, maintain said house
as a den, where regulated drug [was] used in any form."5

The second Information6 charged appellant with illegal possession of firearms and ammunition.
We quote it below:

"That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together, mutually aiding and assisting with one another, without any justifiable reason or
purpose other than to use it in the commission of crime, did then and there, wilfully, unlawfully,
and feloniously have in their possession and under their custody and control, the following
weapons, to wit: one (1) M14 rifle with SN 1555225 with magazines and seven (7) rounds of live
ammunition; two (2) magazines with twenty (20) and twenty[-one] (21) rounds of live
[ammunition]; one (1) homemade caliber .38 revolver with five (5) live ammunition; one (1) M-79
(single) rifle with pouch and with five (5) empty shell[s]; one (1) home made caliber .38 with SN-
311092 with five live ammunition and one empty shell of [a] cal. 38 x x x Smith and Wesson; two
(2) .38 Caliber paltik revolver with Serial Number 311092 and one defaced M79 grenade
launcher paltik, without first having obtained the necessary license and or permit therefor from
authorities concerned, in flagrant violation of the aforementioned law."7

The third Information,8 for multiple attempted murder with direct assault, was worded thus:

"That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused being then armed with M-14
Armalite Rifles, M-16 Armalite Rifles and other assorted firearms and explosives, conspiring and
confederating together, mutually aiding and assisting x x x one another and with intent to kill, did
then and there wilfully, unlawfully and feloniously try and attempt to kill SPO1 WILLIAM B.
JONES, JR., PO3 ENRIQUE C. RIVERA[,] SPO1 AMADO A. MIRASOL, JR., and SPO1
RICARDO J. LACASTESANTOS, in the following manner, to wit: by then and there firing their
M-14 x x x Armalite Rifles, M-16 Armalite Rifles and other assorted firearms and explosives,
aimed and directed at the fatal parts of the bodies of the above-named police officers, well
known to the accused as members of the Philippine National Police, Zamboanga City Police
Office, and as such, agents of a person in authority, who at the time of the attack were engaged
in the performance of their duties, that is, on the occasion when said officers were about to
serve the Search Warrant legally issued by the Regional Trial Court, this City, to the person of
the accused thus commencing the commission of crime of multiple murder directly by overt acts,
and if the accused did not accomplish their unlawful purpose, that is, to kill the above-named
Police Officers, it was not by reason of their own voluntary desistance but rather because of the
fact that all the above-named police officers were able to seek cover during the firing and were
not hit by the bullets and explosives fired by the accused and also by the fact said police officers
were able to wrestle with two (2) of the accused namely: Walpan Ladjaalam y Mihajil a.k.a.
‘Warpan’ and Ahmad Sailabbi y Hajairani, who were subdued and subsequently placed under
arrest; whereas accused PO2 Nurhakim T. Hadjula was able to make good his escape and has
remained at-large."9

In the fourth Information, appellant was charged with illegal possession of drugs.10

On December 21, 1997, the cases against Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini
were dismissed upon motion of the Office of the City Prosecutor, which had conducted a
reinvestigation of the cases as ordered by the lower court. The accused were consequently
released from jail.

The arraignment of appellant on all four (4) charges took place on January 6, 1998, during
which he entered a plea of not guilty.11 After pretrial, the assailed Decision was rendered, the
dispositive part of which reads:

"WHEREFORE, the Court finds accused WALPAN LADJAALAM y MIHAJIL a.k.a. ‘WARPAN’

-

"1. in Criminal Case No. 14636, GUILTY BEYOND REASONABLE DOUBT of Violation

of Section 15-A, Article III, of Republic Act No. 6425, otherwise known as the Dangerous
Drugs Act of 1972, as amended, and SENTENCES said accused to the penalty
of RECLUSION PERPETUA and to pay a fine of FIVE HUNDRED
THOUSAND (₱500,000.00) and to pay the costs;

"2. In Criminal Case No. 14637, NOT GUILTY of Violation of Section 16, Article III, in
relation to Section 21, Article IV, of Republic Act No. 6425, otherwise known as the
 Dangerous Drugs Act of 1972, as amended, and ACQUITS him of said crime with costs
de oficio;

"3. in Criminal Case No. 14638, GUILTY BEYOND REASONABLE DOUBT of the crime
of Illegal Possession of Firearm and Ammunition penalized under Presidential Decree
No. 1866, as amended by Republic Act. No. 8294, and SENTENCES said accused to
suffer an indeterminate penalty of SIX (6) YEARS of prision correccional as minimum
to EIGHT (8) YEARS of prision mayor as maximum and to pay a fine [of] THIRTY
THOUSAND (P30,000.00) and pay the costs;

"4. in Criminal Case No. 14639, GUILTY BEYOND REASONABLE DOUBT of the crime
of Direct Assault with Multiple Attempted Homicide and SENTENCES said accused to
an indeterminate penalty of TWO (2) YEARS and FOUR (4) MONTHS of prision
correccional as minimum to SIX (6) YEARS of prision correccional as maximum and to
pay a fine of ONE THOUSAND (P1,000.00) and to pay the costs." (emphasis in the
original)

Hence, this appeal.12

The Facts

Prosecution’s Version

In its Brief,13 the Office of the Solicitor General presents the facts in this wise:

"At 1:45 p.m. of September 24, 1997, PO3 Allan Marcos Obut filed an application for the
issuance of a search warrant against appellant, his wife and some John Does (Exh. C). After the
search warrant was issued about 2:30 p.m. of the same day, a briefing was conducted inside
the office of the Anti-Vice/Narcotics Unit of the Zamboanga City Police Office in connection with
the service of the search warrant. The briefing was conducted by SPO2 Felipe Gaganting, Chief
of the Anti-Vice/Narcotics Unit. During the briefing, PO3 Renato Dela Peña was assigned as
presentor of the warrant. SPO1 Ricardo Lacastesantos and PO3 Enrique Rivera were
designated to conduct the search. Other policemen were assigned as perimeter guards (TSN,
March 3, 1998, pp. 33-36).

"After the briefing, more than thirty (30) policemen headed by Police Superintendent Edwin
Soledad proceeded to the house of appellant and his wife at Rio Hondo on board several police
vehicles (TSN, March 4, 1998, p. 32; April 22, 1998, p. 54). Before they could reach appellant’s
house, three (3) persons sitting at a nearby store ran towards the house shouting, ‘[P]olice, raid,
raid’ (Ibid., March 3, 1998, pp. 41, 43-44; April 23, 1998, p. 4). When the policemen were about
ten (10) meters from the main gate of the house, they were met by a rapid burst of gunfire
coming from the second floor of the house. There was also gunfire at the back of the house
(Ibid., March 5, 1998, pp. 14-16).

"SPO1 Mirasol, SPO2 Lacastesantos, PO3 Rivera, and PO3 Dela Peña who were with the first
group of policemen saw appellant fire an M14 rifle towards them. They all knew appellant. When
they were fired upon, the group, together with SPO2 Gaganting, PO3 Obut and Superintendent
Soledad, sought cover at the concrete fence to observe the movements at the second floor of
the house while other policemen surrounded the house (Ibid., March 4, 1998, pp. 50-51).
"In front of the house was an extension building connected to the concrete fence (Ibid., pp. 45-
46, 57-59, 73-76). Gaganting, Mirasol, Lacastesantos, Gregorio, and Obut entered the door of
the extension building. Gaganting opened the main (steel) gate of the house. The other
members of the team then entered. Lacastesantos and Mirasol entered the house through the
main door and went inside the sala of the ground floor while other policemen surrounded the
house. Two (2) old women were in the sala together with a young girl and three (3) children.
One of the old women took the children to the second floor while the young girl remained seated
at the corner (Ibid., pp. 19-21).

"Lacastesantos and Mirasol proceeded to the second floor where they earlier saw appellant
firing an M14 rifle at them through the window. While they were going upstairs, appellant noticed
their presence. He went inside the bedroom and, after breaking and removing the jalousies,
jumped from the window to the roof of a neighboring house. Seeing this, Mirasol rushed
downstairs and asked help from the other members of the raiding team to arrest appellant.
Lacastesantos went to the second floor and shouted to the policemen outside not to fire in the
direction of the second floor because there were children. Mirasol and SPO1 Cesar Rabuya
arrested appellant at the back of his house after a brief chase (Ibid., pp. 21-23).

"At the second floor, Lacastesantos saw an M14 rifle (Exh. B-3) with magazine on top of the
sofa at the sala on the second floor (Ibid., P. 27). The rifle bore Serial No. 1555225. He
removed the magazine from the rifle and the bullet inside the chamber of the rifle. He counted
seventeen (17) live ammunition inside the magazine. He saw two (2) more M14 rifle magazines
on the sofa, one with twenty (20) live ammunition (Exh. G-3) and another with twenty-one (21)
live ammunition (Exh. G-4). He likewise saw three (3) M16 rifle magazines (Exh. G-2) in a
corner at the second floor (TSN, March 5, 1998, pp. 23-32, 53-57).

"After Lacastesantos and Mirasol entered appellant’s house, Rivera, Dela Peña, Gregorio and
Obut followed and entered the house. After identifying themselves as members of the PNP Anti-
Vice/Narcotics Unit, Obut presented to the old women a copy of the search warrant. Dela Peña
and Rivera then searched appellant’s room on the ground floor in the presence of Punong
Barangay Elhano (TSN, March 3, 1998, pp. 41-43). On top of a table was a pencil case (Exh. J)
with fifty (50) folded aluminum foils inside (Exhs. J-1 to J-50), each containing
methamphetamine hydrochloride or ‘shabu’.

"Other items were found during the search, namely, assorted coins in different denominations
(Exh. W; TSN, April 28, 1998, pp. 23-25), one (1) homemade .38 caliber revolver (Exh. B-2) with
five (5) live [ammunition], one (1) M79 single rifle with [a] pouch containing five (5) empty shells
of an M79 rifle (Exh. B-4), and one (1) empty shell of an M14 rifle (TSN, April 23, 1998, pp. 30-
32).

"Rino Bartolome Locson was an informer of the Anti-Vice/Narcotics Unit of the Zamboanga
Police. [O]n the morning of September 24, 1997, he was instructed by SPO2 Gaganting to go to
appellant’s house to buy ‘shabu.’ Locson knew appellant as a seller of ‘shabu’ (TSN, April 22,
1998, p. 5) and had been to appellant’s house about fifteen (15) times before. He went to Rio
Hondo and arrived at appellant’s house at 3:20 p.m. He bought P300.00 worth of ‘shabu’ from
appellant. The latter got three (3) decks of shabu from his waist bag. Appellant instructed
Locson to go behind the curtain where there was a table. There were six (6) persons already
smoking. There was a lighted kerosene lamp made of a medicine bottle placed on the table.
They asked Locson to smoke ‘shabu’ and Locson obliged. He placed the three (3) decks of
‘shabu’ he bought on the table (Ibid., pp. 8-15).
"While they were smoking ‘shabu,’ Locson heard gunfire coming from appellant’s house. They
all stood and entered appellant’s compound but were instructed to pass [through] the other side.
They met appellant at the back of his house. Appellant told them to escape ‘because the police
are already here.’ They scampered and ‘ran away because there were already shots.’ Locson
jumped over the fence and ran towards the seashore. Upon reaching a place near the Fisheries
School, he took a tricycle and went home (Ibid., pp. 17-19).

"The following day, September 25, 1997, he went to the police station and executed an affidavit
(Exh. M) narrating what transpired at appellant’s house [o]n the afternoon of September 24,
1997.

"After the search and before returning to the police station, P03 Dela Peña prepared a ‘Receipt
for Property Seized’ (Exh. P & 3) listing the properties seized during the search. The receipt was
signed by Dela Peña as the seizure officer, and by Punong Barangay Hadji Hussin Elhano and
radio reporter Jun Cayona as witnesses. A copy of the receipt was given to appellant but he
refused to acknowledge the properties seized (TSN, April 23, 1998, pp. 11-12).

"An examination conducted by Police Inspector Mercedes D. Diestro, Forensic Chemist of the
PNP Crime Laboratory Service Office 9, on the paraffin casts taken from both hands of
appellant yielded positive for gunpowder nitrates (Exh. A-3), giving rise to the possibility that
appellant had fired a gun before the examination (TSN, March 3, 1998, p. 11). Gunpowder
residue examinations conducted on September 26, 1997 showed that the following firearms
‘were fired’ (Exh. B-5): a .38 caliber revolver (homemade) with Serial No. 311092 (Exh. B-1),
another .38 caliber revolver (homemade) without a serial number (Exh. B-2), a Cal. 7.62 mm
M14 U.S. rifle with Serial No. 1555225 (Exh. B-3), and an M79 rifle without a serial number
(Exh. B-4). They were fired within five (5) days prior to the examination (TSN, March 3, 1998,
pp. 16-21).

"With respect to the crystalline substances, an examination conducted by Police Inspector

Susan M. Cayabyab, likewise a Forensic Chemist of the PNP Crime Laboratory Service Office
9, on the fifty (50) pieces of folded aluminum foils each containing white crystalline granules with
a total weight of 1.7426 grams (Exh. J-1 to J-50) yielded positive results for the presence of
methamphetamine hydrochloride (shabu) (Exh. L). However, the examination of one (1)
crystalline stone weighing 83.2674 grams (Exh. K) yielded negative results for the presence of
methamphetamine hydrochloride (Exh. L).

"The records of the Regional Operation and Plans Division of the PNP Firearm and Explosive
Section show that appellant ‘had not applied/filed any application for license to possess firearm
and ammunition or x x x been given authority to carry [a] firearm outside of his residence’ (Exh.
X)"14

Defense’s Version

Appellant Ladjaalam agrees with the narration of facts given by the lower court.15 Hence, we
quote the pertinent parts of the assailed Decision:

"Accused Walpan Ladjaalam y Mihajil a.k.a. ‘Warpan’, 30 years old, married, gave his
occupation as ‘smuggling’ (tsn, p. 2, May 4, 1998). He used to go to Labuan in Malaysia and
bring cigarettes to the Philippines without paying taxes (tsn, pp. 40-41, id). He said that his true
name [was] Abdul Nasser Abdurakman and that Warpan or Walpan Ladjaalam [was] only his
‘alias’. However, he admitted that more people kn[e]w him as Walpan Ladjaalam rather than
Abdul Nasser Abdurakman (tsn. pp. 39-40; 46-47, id). He testified that [o]n the afternoon of
September 24, 1997, when he was arrested by the police, he was sleeping in the house of
Dandao, a relative of his wife. He was alone. He slept in Dandao’s house and not in his house
because they ha[d] ‘a sort of a conference’ as Dandao’s daughter was leaving for Saudi Arabia.
He noticed the presence of policemen in his neighborhood at Aplaya, Rio Hondo when he heard
shots. He woke up and went out of the house and that was the time that he was arrested. He
said he was arrested ‘xxx [at] the other side of my house; at the other side of the fence where I
was sleeping. xxx. At the back of my house’ (tsn, p. 7, id.). He does not know who arrested him
‘considering that the one who arrested me does not have nameplate.’ He was arrested by four
(4) persons. Not one of those who arrested him testified in Court. He was handcuffed and
placed inside a jeep parked at Rio Hondo Elementary School. According to him, he did not fire a
gun at the policemen from [t]he second floor of his house. He said the ‘policemen’ [were] ‘the
one[s] who fire[d] at us’ (tsn, p. 5, id.). If he fired a gun at the policemen for sure they [would] die
‘[b]ecause the door is very near x x x the vicinity of my house’. He does not own the M14 rifle
(Exh. ‘B-3’) which according to policemen, he used in firing at them. The gun does not belong to
him. He does not have a gun like that (tsn, p. 15, id.). A policeman also owns an M14 rifle but he
does not know the policeman (tsn, pp. 16-17, id). He said that the M79 rifle (Exh. ‘B-4’), the
three (3) empty M16 rifle magazines (Exh. ‘G’; ‘G-1’ to ‘G-2’), the two (2) M14 magazines with
live ammunition (Exh. ‘G-3’; ‘G-4’); the two (2) caliber .38 revolvers (Exhs. ‘B-1’; ‘B-2’), the fifty
(50) aluminum foils each containing shabu (Exhs. ‘J-1’ to ‘J-50’) placed inside a pencil case
(Exh. ‘J’, the assorted coins placed inside a blue bag (Exh. ‘W’) and the white crystalline stone
(Exh. ‘K’) all do not belong to him. He said that the policemen just produced those things as
their evidence. The firearms do not belong to him. They were brought by the policemen (tsn, p.
43, May 4, 1998). Regarding the blue bag containing assorted coins, he said: ‘that is not ours, I
think this (is) theirs, xxx they just brought that as their evidence’ (tsn, pp. 15-24, id.)

"Walpan Ladjaalam declared there were occupants who were renting his extension house. He
affirmed that he owns that house. Four (4) persons were staying in the extension house. He
could only recognize the husband whose name is Momoy. They are from Jolo. They left the
place already because they were afraid when the police raided the place. (tsn, pp. 8-10, May 4,
1998). He does not know prosecution witness Rino Locson y Bartolome. Although Locson
recognized him, in his case he does not know Locson and he does not recognize him (tsn, p.11,
id). He did not sell anything to Locson and did not entertain him. He is not selling shabu but he
knows ‘for a fact that there are plenty of person who are engaged in selling shabu in that place’,
in that area known as Aplaya, Rio Hondo. One of them is Hadji Agbi (tsn, pp.11-14, id).

"After his arrest Walpan Ladjaalam was brought to the police station where he stayed for one
day and one night before he was transferred to the City jail. While at the police station, he was
not able to take a bath. He smokes two packs of cigarette a day. While he was at the police
station, he smoked [a] cigarette given to him by his younger sister. He lighted the cigarettes with
[a] match. From the police station, he was brought to the PNP Regional Office at R.T. Lim
Boulevard where he was subject to paraffin examination (tsn, pp. 24-26, May 4, 1998).

"During the raid conducted on his house, his cousin Boy Ladjaalam, Ating Sapadi, and Jecar
(Sikkal) Usman, the younger brother of his wife were killed. Walpan Ladjaalam said that he saw
that ‘it was the policeman who shot them[,] only I do not know his name." They were killed at the
back of his house. He said that no charges were filed against the one responsible for their death
(tsn, pp. 30-33- May 4, 1998).
"Anilhawa Ahamad, more or less 80 years old, a widow was in the house of Walpan Ladjaalam
whom he calls ‘Hadji Id’ at the time the police raided the house. She is the mother of Ahma
Sailabbi. She was together with Babo Dandan, two small children and a helper when ‘soldiers’
entered the house. ‘(W)hen they arrived, they kept on firing (their guns) even inside the house’
(tsn, p.5, May 5, 1998). They were armed with short and long firearms. They searched the
house and scattered things and got what they wanted. They entered the room of Walpan
Ladjaalam. They tried to open a bag containing jewelry. When Anilhawa tried to bring the bag
outside the room, they grabbed the bag from her and poked a gun at her. At that time Walpan
Ladjaalam was not in the house. Ahamad Sailabbi was also not in the house. A Search Warrant
was shown to Anilhawa after the search was conducted and just before the policemen left the
place. Anilhawa Ahamad said that ‘it was already late in the afternoon[;] before they left that
was the time the Search Warrant (was) given to us by xxx Barangay Captain Hussin Elhano’
(tsn, pp.6-8, May 5, 1998). Barangay Chairman Elhano arrived ‘already late in the afternoon,
almost sundown’ (tsn, p. 9, id). Anilhaw declared that aside from a bag containing jewelry and a
bag full of money, she had not seen anything else that was taken from Walpan Ladjaalam’s
house (tsn, pp. 9-12, id).

"Akmad (Ahmad) Sailabbi, 37 years old, married testified that about 4:00 o’clock [o]n the
afternoon of September 24, 1997, ha was standing in front of his house when policemen arrived
and immediately arrested him. He was about to go to the City Proper to buy articles he was
intending to bring to Sabah. He had ‘around P50,000.00’ placed inside a waist bag tied around
his waist. The policemen told him to lie down in prone position and a policeman searched his
back. They pulled his waist bag and took his DiaStar wrist watch. He was shot three times and
was hit on the forehead leaving a scar. His injury was not treated. He was taken to the police
station where he was detained for one day and one night. He was detained at the City Jail for
three months and five days after which he was released (tsn, pp. 25-29, May 5, 1998).

"Melba Usma, 20 years old, a widow, testified that [o]n the afternoon of September 24, 1997,
she was in the house of her parents lying together with her husband Sikkal Usma. There is only
one house between her parents’ house and the house of Walpan Ladjaalam. Her husband
Sikkal Usman is the brother of Nur-in Ladjaalam, Walpan’s wife. When Melba heard shots, she
went downstairs. A policeman was looking for her husband. The policeman called her husband.
When her husband went down, he was instructed by the policeman to lie down in prone
position. Then the policeman shot her husband. The policeman had two other companions who
also shot her husband while he was lying down in prone position (tsn, pp.2-7, May 5, 1998).

"Murkisa Usman, 30 years old, married, declared that [o]n the afternoon of September 24, 1997,
she was sitting at the door of her house watching her children playing when a motorcyle, driven
by a person, stopped near her house. The driver was Gaganting whom she called a soldier. He
went down from his motorcycle, pulled a gun and poked it at Murkisa. Murkisa stood up and
raised her hands. She got her children and when she was about to enter the room of her house,
Gaganting again poked a gun at her and ‘there was a shot.’ As a result of firing, three persons
died, namely, Sikkal Usman, Boy Ladjaalam and Atip Sapali Sali (tsn, pp. 8-10, May 5, 1998).

"Barangay Captain Hadji Hussin Elhano, 51 years old, testified that about 4:00 o ‘clock [o]n the
afternoon of September 24, 1997, he was fetched by two policemen at Catabangan where he
was attending a seminar. Because of traffic along the way, they arrived at the Rio Hondo
already late in the afternoon. He saw policemen were already inside the house. Upon entering
the gate, he saw Walpan at the gate already handcuffed. Walpan called him but the police
advised him not to approach Walpan. The search was already over and things were already
taken inside the house. When he went inside the house, he saw ‘the things that they
(policemen) searched, the firearms and the shabu‘ (tsn, p. 17. May 8, 1998). He did not see the
Search Warrant. What was shown to him were the things recovered during the search which
were being listed. They were being counted and placed on a table. ‘Upon seeing the things that
were recovered during the search, I just signed the receipt (Exh. "P"; "P-1") of the things x x x
taken during the search" (tsn, pp. 17-18. May 8, 1998). He saw three dead bodies at the side of
the fence when he went to the other side of the house. The three persons were killed outside
the fence of Walpan Ladjaalam (tsn, p. 18, id)."16

The Trial Court’s Ruling

The trial court observed that the house of appellant was raided on September 24, 1997 by virtue
of Search Warrant No. 20 issued on the same day. However, the lower court nullified the said
Warrant because it had been issued for more than one specific offense,17 in violation of Section
3, Rule 126 of the Rules of Court.18 The court a quo ruled:

"It should be stated at the outset that Search Warrant No. 20 is totally ‘null and void’ because it
was issued for more than one specific offense x x x contrary to Section 3, Rule 1[2]6 of the
Rules of Court which provides that ‘A search warrant shall not issue but upon probable cause in
connection with one specific offense xxx’. In Tambasan vs. People, 246 SCRA 184 (1995), the
Supreme Court ruled that a search warrant for more than one offense - a ‘scatter shot warrant’ -
violates Section 3, Rule 126 of the [R]evised Rules of Court and is ‘totally null and
void.’"19 (emphasis in the original)

Nevertheless, the trial court deemed appellant’s arrest as valid. It emphasized that he had shot
at the officers who were trying to serve the void search warrant. This fact was established by the
testimonies of several police officers,20 who were participants in the raid, and confirmed by the
laboratory report on the paraffin tests conducted on the firearms and appellant.21 Additionally,
the judge noted that Appellant Ladjaalam, based on his statements in his Counter Affidavit,
impliedly contradicted his assertions in open court that there had been no exchange of gunfire
during the raid.22 The trial court concluded that the testimonies of these officers must prevail
over appellant’s narration that he was not in his house when the raid was conducted.

Prescinding from this point, the court a quo validated the arrest of appellant, reasoning thus:

"Under the circumstances, the policemen ‘had authority to pursue and arrest Walpan Ladjaalam
and confiscate the firearm he used in shooting at the policemen and to enter his house to effect
said arrest and confiscation of the firearm.’ Under Rule 113, Section 5 (a), of the Rules of Court,
‘A peace officer or a private person may, without a warrant, arrest a person xxx (w)hen in his
presence, the person to be arrested has committed, is actually committing, or is attempting to
commit an offense.’ An offense is committed in the presence or within the view of an officer,
within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the
offense, although at a distance, or hears the disturbances created thereby and proceeds at
once to the scene thereof. At the time the policemen entered the house of accused Walpan
Ladjaalam after he had fired shots at the policemen who intended to serve the Search Warrant
to him, the accused was engaged in the commission of a crime, and was pursued and arrested
after he committed the crime of shooting at the policemen who were about to serve the Search
Warrant."23
As a consequence of the legal arrest, the seizure of the following was also deemed valid: the
M14 rifle (with a magazine containing seventeen live ammunition)24 used by appellant against
the police elements, two M14 magazines, and three other M16 rifle magazines.25 The trial court
observed that these items were in "plain view" of the pursuing police officers. Moreover, it added
that these same items were "evidence [of] the commission of a crime and/or contraband and
therefore, subject to seizure"26 since appellant "had not applied for a license to possess firearm
and had not been given authority to carry firearm outside his residence."27

For being incredible and unsupported by evidence, appellant’s claim that the items that were
seized by the police officers had been planted was disbelieved by the trial court. It ruled that if
the police officers wanted to plant evidence to incriminate him, they could have done so during
the previous raids or those conducted after his arrest. To its mind, it was unbelievable that they
would choose to plant evidence, when they were accompanied by the barangay chairman and a
radio reporter who might testify against them. It then dismissed these allegations, saying that
frame-up, like alibi, was an inherently weak defense.28

The trial court also convicted the accused of the crime of maintaining a drug den. It reasoned as
follows:

"The testimony of Rino Bartolome Locson, corroborated by SPO1 Ricardo Lacastesantos and
SPO1 Amado Mirasol, Jr. clearly established that Walpan Ladjaalam operated and maintained a
drug den in his extension house where shabu or methamphetamine hydrochloride, a regulated
drug, was sold, and where persons or customers bought and used shabu or methamphetamine
hydrochloride by burning the said regulated drug and sniffing its smoke with the use of an
aluminum foil tooter. A drug den is a lair or hideaway where prohibited or regulated drugs are
used in any form or are found. Its existence [may be] proved not only by direct evidence but
may also be established by proof of facts and circumstances, including evidence of the general
reputation of the house, or its general reputation among police officers. The uncorroborated
testimony of accused Walpan Ladjaalam a.k.a. Warpan’ that he did not maintain an extension
house or a room where drug users who allegedly buy shabu from him inhales or smokes shabu
cannot prevail over the testimonies of Locson, SPO1 Lacastesantos, and SPO1 Mirasol. He
admitted that he is the owner of the extension house but he alleged that there were four (4)
occupants who rented that extension house. He knew the name of only one of the four
occupants who are allegedly from Jolo, a certain Momoy, the husband. Aside from being
uncorroborated, Walpan’s testimony was not elaborated by evidence as to when or for how long
was the extension house rented, the amount of rental paid, or by any other document showing
that the extension house was in fact rented. The defense of denial put up by accused Walpan
Ladjaalam a.k.a. 'Warpan’ is a weak defense. Denial is the weakest defense and cannot prevail
over the positive and categorical testimonies of the prosecution witnesses. Denials, if
unsubstantiated by clear and convincing evidence, are negative and self-serving evidence
which deserve no weight in law and cannot be given evidentiary weight over the testimony of
credible witnesses who testify on affirmative matters. As between the positive declaration of the
prosecution witnesses and the negative statements of the accused, the former deserve more
credence."29

In conclusion, the trial court explained appellant’s liability in this manner:

"x x x. The act of the accused in firing an M14 rifle to the policemen who were about to enter his
house to serve a search warrant constitutes the crime of direct assault with multiple attempted
homicide[,] not multiple attempted murder with direct assault[,] considering that no policeman
was hit and injured by the accused and no circumstance was proved to qualify the attempted
killing to attempted murder.

"The accused Walpan Ladjaalam a.k.a. ‘Warpan’ cannot be held liable [for] the crime of
Violation of Section 16, Article III, in relation to Section 21, Article IV, of Republic Act 6425
otherwise known as the Dangerous Drugs Act of 1992, as amended, because the fifty (50)
pieces of folded aluminum foils having a total weight of 1.7426 grams all containing
methamphetamine hydrochloride or shabu allegedly found in his house are inadmissible as
evidence against him considering that they were seized after [a] search conducted by virtue of
Search Warrant No. 20 which is totally null and void as it was issued for more than one offense,
and were not found in ‘plain view’ of the police officers who seized them. Neither could the
accused be held liable for illegal possession of firearms and ammunition except for the (1) M14
rifle with Serial Number 1555225 and with magazine containing fifteen (15) live ammunition and
two more M14 rifle magazines with twenty (20) and twenty-one (21) live ammunition
respectively considering that the policemen who recovered or seized the other firearms and
ammunition did not testify in court. The blue bag containing assorted coins cannot be returned
to the accused Walpan Ladjaalam a.k.a. ‘Warpan’ because according to the accused the blue
bag and assorted coins do not belong to him[;] instead the said assorted coins should be turned
over to the National Treasury."30

The Issues

In his Brief, appellant submits the following Assignment of Errors:

"The trial court erred when it concluded that appellant Walpan Ladjaalam y Mihajil [had] fired
first at the police officers who went to his house to serve a search warrant upon him which led to
an exchange of fire between Ladjaalam and the police officer.

II

"The trial court erred when it denied the appellant the right and opportunity for an ocular
inspection of the scene of the firefight and where the house of the appellant [was] located.

III

"The trial court erred when it ruled that the presumption of regularity in the performance of their
duties [excluded] the claim of the appellant that the firearms and methamphetamine
hydrochloride (i.e. shabu) were planted by the police."31

In the interest of simplicity, we shall take up these issues seriatim: (a) denial of the request for
ocular inspection, (b) credibility of the prosecution witnesses, and (c) the defense of frame-up.
In addition, we shall also discuss the proper crimes and penalties to be imposed on appellant.

The Court’s Ruling

The appeal has no merit.

First Issue: Denial of Request for Ocular Inspection

Appellant insists that the trial court erred in denying his request for an ocular inspection of the
Ladjaalam residence. He argues that an ocular inspection would have afforded the lower court
"a better perspective and an idea with respect to the scene of the crime."32 We do not agree.

We fail to see the need for an ocular inspection in this case, especially in the light of the clear
testimonies of the prosecution witnesses.33 We note in particular that the defense had even
requested SPO1 Amado Mirasol Jr. to sketch the subject premises to give the lower court a
fairly good idea of appellant’s house.34 Viewing the site of the raid would have only delayed the
proceedings.35 Moreover, the question whether to view the setting of a relevant event has long
been recognized to be within the discretion of the trial judge.36 Here, there is no reason to
disturb the exercise of that discretion.37

Second Issue: Credibility of Prosecution Witnesses

Appellant, in essence, questions the credibility of the prosecution witnesses.38 Suffice it to state

that the trial court’s assessment of their credibility is generally accorded respect, even
finality.39 After carefully examining the records and finding no material inconsistencies to support
appellant’s claim, we cannot exempt this case from the general rule.40 Quite the contrary, the
testimonies of these witnesses positively showed that appellant had fired upon the approaching
police elements, and that he had subsequently attempted to escape. SPO1 Amado Mirasol
Jr.41 testified thus:

"PROSECUTOR NUVAL:

Q: And, this trail is towards the front of the house of the accused?

A: Yes.

Q: And it’s there where you were met by a volley of fire?

A: Yes, Your Honor.

COURT:

Q: How far were you from the concrete fen[c]e when you were met by a volley of fire? ... You
said you were fired upon?

A: More or less, five (5) meters.

x x x           x x x          x x x

PROSECUTOR NUVAL:

Q: Now, you said you were able to enter the house after the gate was opened by your colleague
Felipe Gaganting ... I will reform that question.

Q: Who opened the gate Mr. Witness?

A: SPO2 Felipe Gaganting, Efren Gregorio and Allan Marcos Obut.

Q: And, at that time you were hiding at the concrete fence?

A: Yes.

Q: Now, when this gate was opened, you said you went inside the house, right?

A: Yes.

Q: What did you see inside the house?

A: I, together with SPO1 Ricardo Lacastesantos, entered the main door of the house of Walfran
[sic] Ladjaalam at the ground floor. We went inside the sala on the ground floor of his house[;] I
saw two old woman.

x x x           x x x          x x x

PROSECUTOR NUVAL:

Q: Now, what did you do with these two old women?

A: I did not mind those two old women because those two women were sitting on the ground
floor. I was concentrating on the second floor because Ladjaalam was firing towards our group
so, I, together with Ricardo Lacastesantos, went upstairs to the second floor of the house.

Q: Were you able to go to the second floor of the house?

A: Yes.

Q: What happened when you were already on the second floor?

A: While we were proceeding to the second floor, Walfan [sic] Ladjaalam, noticed our presence
and immediately went inside the bedroom [o]n the second floor and he went immediately and
jumped from the window of his house x x x leading to the roof of the neighbor’s house.

x x x           x x x          x x x

COURT:

Reform. That is leading

Q: What happened when you entered and he jumped to the roofing of the neighbor’s house?

A: Immediately, I myself, we immediately went downstairs and asked the assistance of the
members of the raiding team to arrest Walfan Ladjaalam.

x x x           x x x          x x x
PROSECUTOR NUVAL:

Q: Were you able to go down?

A: Yes.

Q: What happened when you were there?

A: We immediately went out and I asked the assistance of the members of the raiding team and
the investigator of the unit especially SPO1 Cesar Rabuya. I was able to manage to arrest
Walfan Ladjaalam."42

What happened thereafter was narrated by Senior Police Officer Ricardo Lacastesantos,43 as
follows:

"Q: What did you notice [o]n the second floor?

A: I went where the firing came from, so, I saw [an] M14 rifle and I shouted from the outside, ‘do
not fire at the second floor because there [are] a lot of children here.’

Q: Now, that rifle you said [was an] M14, where did you find this?

A: At the sala set.

Q: This sala set where is this located?

A: Located [on] the second floor of the house.

Q: Is there a sala [o]n the second floor?

A: Yes.

Q: Can you still identify that M14 rifle which you said you recovered from the sale set?

A: Yes.

Q: Why can you identify that?

A: The Serial No. of M14 is 1555225 and I marked it with my initial.

Q: Now, I have here M14 rifle[;] will you please tell us where is the Serial No. of this?

A: 1555225 and I put my initial, RJL.

FISCAL NUVAL:

This is already marked as our Exhibit ‘B-3’ with magazine, one magazine and seven round
[ammunition].
Q: After recovering this, what did you do with this firearm?

A: When I recovered it I removed the bullets inside the chamber[.] I removed the magazine and I
turned it over to the investigator.

Q: Where did you turn it over?

A: At the crime scene.

Q: Now, that magazine, can you still identify this?

A: Yes.

Q: Why?

A: I put x x x markings.

x x x           x x x          x x x

COURT:

So, a[si]de from the magazine attached to the M14 rifle you found six more magazines?

A: Yes, so, all in all six magazines, three empty M16 rifle magazines and three M14.

Q: The M16 magazines [were] empty?

A: Empty.

Q: How about the M14?

A: Found with [ammunition].

x x x           x x x          x x x

Q: So, where are the three M16 magazines?

A: In the corner.

Q: What did you do with [these] three magazines of M16?

A: I turned [them] over to the investigator.

Q: Can you identify them?

A: Yes, because of my initials[.]

Q: Where are your initials?

A: On the magazines.

Q: RJL?

A: RJL."44

These were confirmed by the results of the paraffin tests conducted on appellant and on the
weapons seized during the raid. Both of his hands as well as the weapons, particularly the M-14
which he had used, were positive for gunpowder nitrate. Police Inspector Mercedes Delfin-
Diestro explained in open court:

"Q: Okay. Now, what was the result of your examination, Madam Witness?

A: The result of the examination [was] that both hands of the subject person, ha[d] presence of
gun powder nitrates.

Q: What do you mean Madam Witness, what does that indicate?

A: It indicates there is presence of powder nitrates.

Q: Can we conclude that he fired a gun?

A: I cannot conclude that he fired a gun because there are so many circumstances [why] a
person [would be] positive on his hands for gun powder nitrates.

Q: But, most likely, he fired a gun?

A: Yes.

x x x           x x x          x x x

PROSECUTOR NUVAL:

Q: What about, Madam Witness this Exhibit ‘B-3’, which is the M14 rifle. What did you do with
this?

A: SPO3 Abu did the swabbing both in the chamber and the barrel wherein I observed there
[were] black and traces of brown residue on the bolt, chamber and in the barrel.

Q: And, that indicates Madam Witness...?

A: It indicates that the gun was fired.

Q: Recently?

A: Because of the traces of brown residue, it could be possible that the gun was fired before the
incident x x x.

COURT:
Q: There is also black residue?

A: Yes.

Q: What does it indicate?

A: It indicates that the firearm was recently fired.

Q: And, where is this swab used at the time of the swabbing of this Exhibit?

A: This one.

PROSECUTOR NUVAL:

May we ask that this be marked as Exhibit ‘B-3-A’.

COURT:

Q: The firing there indicates that the gun was recently fired, during the incident?

A: Yes.

Q: And also before the incident it was fired because of the brown residue?

A: Yes, Your Honor."45 (emphasis supplied)

Duly proven from the foregoing were the two elements46 of the crime of illegal possession of
firearms. Undoubtedly, the established fact that appellant had fired an M-14 rifle upon the
approaching police officers clearly showed the existence of the firearm or weapon and his
possession thereof. Sufficing to satisfy the second element was the prosecution’s
Certification47 stating that he had not filed any application for license to possess a firearm, and
that he had not been given authority to carry any outside his residence.48 Further, it should be
pointed out that his possession and use of an M-14 rifle were obviously unauthorized because
this weapon could not be licensed in favor of, or carried by, a private individual.49

Third Issue: Defense of Frame-up

From the convoluted arguments strewn before us by appellant, we gather that the main defense
he raises is frame-up. He claims that the items seized from his house were "planted," and that
the entire Zamboanga police force was out to get him at all cost.

This Court has invariably held that the defense of frame-up is inherently weak, since it is easy to
fabricate, but terribly difficult to disprove.50 Absent any showing of an improper motive on the
part of the police officers,51 coupled with the presumption of regularity in the performance of their
duty, such defense cannot be given much credence.52 Indeed, after examining the records of
this case, we conclude that appellant has failed to substantiate his claim. On the contrary, his
statements in his Counter Affidavit are inconsistent with his testimony during the trial.53 He
testified thus:
"Q Now, Mr. Witness, do you remember having executed an Affidavit/ a Counter-Affidavit?

A I could not remember.

Q I have here a Counter-Affidavit and it was signed before this representation on the 8th day of
December 1997[;] tell us whose signature is this appearing above the typewritten name

FISCAL NUVAL:

Q . . . . Walpan Ladjaalam, whose signature is this?

(Showing)

A Yes, Sir. This is mine.

Q Now, in paragraph[s] 1,2,3,4,5,6,7 and 8; you stated in this Counter-Affidavit which I quote:
‘that I was resting and sleeping when I heard the gunshots and I noticed that the shots were
directed towards our house.. and I inspected and x x x we were attacked by armed persons..
and I was apprehended by the persons who attacked x x x our house’; [the] house you are
referring to [in] this paragraph, whose house [are you] referring to, is this [what] you are referring
to [as] your house or the house of your neighbors [from] which you said you heard gunshots?

A Our house.

Q Now, in paragraph 6 of your Counter-Affidavit you stated and I quote: ‘that [o]n that afternoon
of September 24, 1997, I was at home in my house Aplaya, Riohondo, Bo. Campo Muslim, my
companions in my house [were] the two old women and my children, is this correct?

A They were not there.

Q Now, in that statement Mr. Witness, you said that you were at home in [your] house at
Aplaya, Riohondo, Bo. Campo Muslim[;] which is which now, you were in your house or you
were in your neighbors[‘] house at that time when you heard gunshots?

A I was in the house near my house.

Q So, your statement particularly paragraph 6 of your Counter-Affidavit that you were at home in
[your] house at Aplaya Riohondo Bo. Campo Muslim, is x x x not correct?

A Yes, Sir. This is not correct."54

Crime and Punishment

The trial court convicted appellant of three crimes: (1) maintenance of a drug den, (2) direct
assault with attempted homicide, and (3) illegal possession of firearms. We will discuss each of
these.

Maintenance of a Drug Den

We agree with the trial court that appellant was guilty of maintenance of a drug den, an offense
for which he was correctly sentenced to reclusion perpetua. His guilt was clearly established by
the testimony of Prosecution Witness Rino Bartolome Locson, who himself had used the
extension house of appellant as a drug den on several occasions, including the time of the raid.
The former’s testimony was corroborated by all the raiding police officers who testified before
the court. That appellant did not deny ownership of the house and its extension lent credence to
the prosecution’s story.

Direct Assault with Multiple Attempted Homicide

The trial court was also correct in convicting appellant of direct assault55 with multiple counts of
attempted homicide. It found that "[t]he act of the accused [of] firing an M14 rifle [at] the
policemen[,] who were about to enter his house to serve a search warrant x x x" constituted
such complex crime.56

We note that direct assault with the use of a weapon carries the penalty of prision
correccional in its medium and maximum periods, while attempted homicide carries the penalty
of prision correccional.57 Hence, for the present complex crime, the penalty for direct assault,
which constitutes the "most serious crime," should be imposed and applied in its maximum
period.58

Illegal Possession of Firearms

Aside from finding appellant guilty of direct assault with multiple attempted homicide, the trial
court convicted him also of the separate offense of illegal possession of firearms under PD
1866, as amended by RA 8294, and sentenced him to 6 years of prision correccional to 8 years
of prision mayor.

The Office of the Solicitor General (OSG) disagrees, on the ground that the trial court should not
have applied the new law. It contends that under the facts of the case, the applicable law should
have been PD 1866, as worded prior to its amendment by RA 8294.

The trial court’s ruling and the OSG’s submission exemplify the legal community’s difficulty in
grappling with the changes brought about by RA 8294. Hence, before us now are opposing
views on how to interpret Section 1 of the new law, which provides as follows:

"SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further

amended to read as follows:

"Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or

Ammunition Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. -- The penalty of prision correccional in its maximum period and a fine of not less
than Fifteen thousand pesos (₱15,000) shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire
handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed.

"The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos
(₱30,000) shall be imposed if the firearm is classified as high powered firearm which includes
those with bores bigger in diameter than .30 caliber and 9 millimeter such as caliber .40, .41, .
44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and
caliber .22 centerfire magnum and other firearms with firing capability of full automatic and by
burst of two or three: Provided, however, That no other crime was committed by the person
arrested.

"If homicide or murder is committed with the use of an unlicensed firearm, such use of an
unlicensed firearm shall be considered as an aggravating circumstance.

"If the violation of this Section is in furtherance of or incident to, or in connection with the crime
of rebellion or insurrection, sedition, or attempted coup d’etat, such violation shall be absorbed
as an element of the crime of rebellion or insurrection, sedition, or attempted coup d’etat.

"The same penalty shall be imposed upon the owner, president, manager, director or other
responsible officer of any public or private firm, company, corporation or entity, who shall
willfully or knowingly allow any of the firearms owned by such firm, company, corporation or
entity to be used by any person or persons found guilty of violating the provisions of the
preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or
firearms without any legal authority to be carried outside of their residence in the course of their
employment.

"The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed
firearm outside his residence without legal authority therefor."

Citing People v. Jayson,59 the OSG argues that the foregoing provision does not cover the
specific facts of this case. Since another crime -- direct assault with multiple unlawful homicide
-- was committed, appellant cannot be convicted of simple illegal possession of firearms under
the second paragraph of the aforecited provision. Furthermore, since there was no killing in this
case, illegal possession cannot be deemed as an aggravating circumstance under the third
paragraph of the provision. Based on these premises, the OSG concludes that the applicable
law is not RA 8294, but PD 1866 which, as worded prior the new law, penalizes simple illegal
possession of firearms even if another crime is committed at the same time.60

Applying a different interpretation, the trial court posits that appellant should be convicted of
illegal possession of firearms, in addition to direct assault with multiple attempted homicide. It
did not explain its ruling, however. Considering that it could not have been ignorant of
the proviso61 in the second paragraph, it seemed to have construed "no other crime" as referring
only to homicide and murder, in both of which illegal possession of firearms is an aggravating
circumstance. In other words, if a crime other than murder or homicide is committed, a person
may still be convicted of illegal possession of firearms. In this case, the other crime committed
was direct assault with multiple attempted homicide; hence, the trial court found appellant guilty
of illegal possession of firearms.

We cannot accept either of these interpretations because they ignore the plain language of the
statute. A simple reading thereof shows that if an unlicensed firearm is used in the commission
of any crime, there can be no separate offense of simple illegal possession of firearms. Hence,
if the "other crime" is murder or homicide, illegal possession of firearms becomes merely an
aggravating circumstance, not a separate offense. Since direct assault with multiple attempted
homicide was committed in this case, appellant can no longer be held liable for illegal
possession of firearms.
Moreover, penal laws are construed liberally in favor of the accused.62 In this case, the plain
meaning of RA 8294’s simple language is most favorable to herein appellant. Verily, no other
interpretation is justified, for the language of the new law demonstrates the legislative intent to
favor the accused.63 Accordingly, appellant cannot be convicted of two separate offenses of
illegal possession of firearms and direct assault with attempted homicide. Moreover, since the
crime committed was direct assault and not homicide or murder, illegal possession of firearms
cannot be deemed an aggravating circumstance.

We reject the OSG’s contention that PD 1866, as worded prior to its amendment by RA 8294,
should be applied in this case.1âwphi1 When the crime was committed on September 24, 1997,
the original language of PD 1866 had already been expressly superseded by RA 8294 which
took effect on July 6, 1997.64 In other words, no longer in existence was the earlier provision of
PD 1866, which justified a conviction for illegal possession of firearms separate from any other
crime. It was replaced by RA 8294 which, among other amendments to PD 1866, contained the
specific proviso that "no other crime was committed."

Furthermore, the OSG’s reliance on People v. Jayson65 is misplaced. True, this Court sustained
the conviction of appellant for illegal possession of firearms, although he had also committed
homicide. We explained, however, that "the criminal case for homicide [was] not before us for
consideration."

Just as unacceptable is the interpretation of the trial court. We find no justification for limiting
the proviso in the second paragraph to murder and homicide. The law is clear: the accused can
be convicted of simple illegal possession of firearms, provided that "no other crime was
committed by the person arrested." If the intention of the law in the second paragraph were to
refer only to homicide and murder, it should have expressly said so, as it did in the third
paragraph. Verily, where the law does not distinguish, neither should we.

The Court is aware that this ruling effectively exonerates appellant of illegal possession of an M-
14 rifle, an offense which normally carries a penalty heavier than that for direct assault. While
the penalty for the first is prision mayor, for the second it is only prision correccional. Indeed, the
accused may evade conviction for illegal possession of firearms by using such weapons in
committing an even lighter offense,66 like alarm and scandal67 or slight physical injuries,68 both of
which are punishable by arresto menor.69 This consequence, however, necessarily arises from
the language of RA 8294, whose wisdom is not subject to the Court’s review. Any perception
that the result reached here appears unwise should be addressed to Congress. Indeed, the
Court has no discretion to give statutes a new meaning detached from the manifest intendment
and language of the legislature. Our task is constitutionally confined only to applying the law and
jurisprudence70 to the proven facts, and we have done so in this case.

WHEREFORE, the appealed Decision is hereby AFFIRMED with the MODIFICATION that

appellant is found guilty only of two offenses: (1) direct assault and multiple attempted homicide
with the use of a weapon, for which he is sentenced to 2 years and 4 months to 6 years
of prision correccional; and (2) maintaining a drug den, for which he was correctly sentenced by
the trial court to reclusion perpetua. Costs against appellant.

Let a copy of this Decision be furnished the Congress of the Philippines for a possible review, at
its sound discretion, of RA 8294.

SO ORDERED.
G.R. No. 195064               January 15, 2014

NARI K. GIDWANI, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

SERENO, CJ:

Before us is a Petition1 under Rule 45 of the Rules of Court, assailing the Decision2 and the
subsequent Resolution3 of the Court of Appeals CA) in CA-G.R. CR No. 32642 dated 17
September 2010 and 6 January 2011, respectively.

The facts are as follows:

Petitioner is the president of G.G. Sportswear Manufacturing Corporation GSMC), which is

engaged in the export of ready-to-wear clothes. GSMC secured the embroidery services of El
Grande Industrial Corporation El Grande) and issued on various dates from June 1997 to
December 1997 a total of 10 Banco de Oro (BDO) checks as payment for the latter’s services
worth an aggregate total of ₱1,626,707.62.

Upon presentment, these checks were dishonored by the drawee bank for having been drawn
against a closed account.

Thus, El Grande, through counsel, sent three demand letters regarding 8 of the 10 issued
checks:4

Date of letter BDO Check No. Date of Check Amount

24 September 1997 0000063646 4 September 1997 P 130,000.00
24 September 1997 0000059552 12 June 1997 412,000.00
0000063643 24 July 1997 138,859.69
0000063644 7 August 1997 138,859.69
0000063650 7 August 1997 144,457.56
0000063645 28 August 1997 138,859.68
8 October 0000063647 25 September 1997 130,000.00
0000063648 2 October 1997 130,000.00

On 15 October 1997,5 petitioner wrote to El Grande’s counsel acknowledging receipt of the 8

October demand letter6 and informing the latter that, on 29 August 1997, GSMC had filed a
Petition with the Securities and Exchange Commission (SEC). It was a Petition for the
Declaration of a State of Suspension of Payments, for the Approval of a Rehabilitation Plan and
Appointment of a Management Committee.7 Acting on the Petition, the SEC issued an Order8 on
3 September 1997 ordering the suspension of all actions, claims, and proceedings against
GSMC until further order from the SEC Hearing Panel. Petitioner attached this SEC Order to the
15 October 1997 letter. In short, GSMC did not pay El Grande.

Despite its receipt on 16 October 1997 of GSMC’s letter and explanation, El Grande still
presented to the drawee bank for payment BDO Check Nos. 0000063652 and 0000063653
dated November and December 1997, respectively.

Thereafter, sometime in November 1997, El Grande filed a Complaint with the Office of the City
Prosecutor of Manila charging petitioner with eight counts of violation of Batas Pambansa Blg.
22 (B.P. 22) for the checks covering June to October 1997. El Grande likewise filed a similar
Complaint in December 1997, covering the checks issued in November and December 1997.
Corresponding Informations for the Complaints were subsequently filed on 1 October 2001.

For his part, petitioner raised the following defenses: (1) the SEC Order of Suspension of
Payment legally prevented him from honoring the checks; (2) there was no consideration for the
issuance of the checks, because the embroidery services of El Grande were of poor quality and,
hence, were rejected; and (3) he did not receive a notice of dishonor of the checks.

On 24 March 2008, after trial on the merits, the Metropolitan Trial Court (MTC) of Manila found
petitioner guilty beyond reasonable doubt of ten counts of violation of B.P. 22. It ordered him to
pay the face value of the checks amounting to ₱1,626,707.60 with interest at the legal rate per
annum from the filing of the case and to pay a fine of ₱200,000 with subsidiary imprisonment in
case of insolvency.9 The MTC held that the Petition for voluntary insolvency or a SEC Order for
the suspension of payment of all claims are not defenses under the law regarding violations of
B.P. 22, since an order suspending payments involves only the obligations of the corporation
and does not affect criminal proceedings.

On appeal, the Regional Trial Court (RTC) affirmed the findings of the MTC and likewise denied
the Motion for Reconsideration of petitioner.10

Thereafter, petitioner filed with the CA a Petition for Review under Rule 42.

In its Decision dated 17 September 2010, the CA found that the prosecution was able to
establish that petitioner had received only the 8 October 1997 Notice of Dishonor and not the
others. The CA further held that the prosecution failed to establish that the account was closed
prior to or at the time the checks were issued, thus proving knowledge of the insufficiency of
funds.

Thus, the CA partly granted the appeal and acquitted petitioner of eight counts of violation of
B.P. 22, while sustaining his conviction for the two remaining counts and ordering him to pay the
total civil liability due to El Grande. The dispositive portion of the Decision reads:

WHEREFORE, premises considered, the instant petition is PARTLY GRANTED and the
assailed RTC Decision dated January 29, 2009 and its Order dated June 5, 2009 are
AFFIRMED with modifications: (a) sustaining accused-appellant’s conviction in Criminal Case
Nos. 301888 and 301889; (b) acquitting him in Criminal Case Nos. 371112-13, 301883-87 and
301890; and (c) ordering him to pay private complainant, El Grande Industrial Corporation, the
aggregate amount of ₱1,626,707.62 representing the value of the ten (10) BDO checks with
interest at 12% per annum reckoned from the date of the filing of the Information until finality of
this Decision, and thereafter, the total amount due, inclusive of interest, shall be subject to 12%
annual interest until fully paid.

The rest of the Decision stands.

SO ORDERED.11

Petitioner filed his Motion for Partial Reconsideration on 11 October 2010,12 raising the following
as his defenses: (1) there was no clear evidence showing that he acknowledged the Notice of
Dishonor of the two remaining checks; (2) the suspension Order of the SEC was a valid reason
for stopping the payment of the checks; and, (3) as a corporate officer, he could only be held
civilly liable.

On 6 January 2011, the CA denied the motion through its assailed Resolution.13

Hence, this Petition.

Petitioner raises these two issues in the present Petition:

A. THE COURT OF APPEALS ERRED IN RULING THAT THE ORDER FOR THE
SUSPENSION OF PAYMENT ISSUED BY THE SECURITIES AND EXCHANGE
COMMISSION IS NOT A VALID REASON TO STOP PAYMENT OF A CHECK EVEN IF
SUCH ORDER WAS ISSUED PRIOR TO THE PRESENTMENT OF THE SUBJECT
CHECKS FOR PAYMENT;

B. THE COURT OF APPEALS ERRED IN FINDING A CORPORATE OFFICER

PERSONALLY LIABLE FOR THE CIVIL OBLIGATION OF THE CORPORATION.14

We find the appeal to be meritorious.

The elements of a violation of B.P. 22 are the following:15

1) making, drawing and issuing any check to apply on account or for value;

2) knowledge of the maker, drawer or issuer that at the time of issue he does not have
sufficient funds in or credit with the drawee bank for the payment of the check in full
upon its presentment; and

3) subsequent dishonor of the check by the drawee bank for insufficiency of funds or
credit, or dishonor of the check for the same reason had not the drawer, without any
valid cause, ordered the bank to stop payment.

In convicting petitioner of two counts of violation of B.P. 22, the CA applied Tiong v. Co,16 in
which we said:

The purpose of suspending the proceedings under P.D. No. 902-A is to prevent a creditor from
obtaining an advantage or preference over another and to protect and preserve the rights of
party litigants as well as the interest of the investing public or creditors. It is intended to give
enough breathing space for the management committee or rehabilitation receiver to make the
business viable again, without having to divert attention and resources to litigations in various
fora. The suspension would enable the management committee or rehabilitation receiver to
effectively exercise its/his powers free from any judicial or extrajudicial interference that might
unduly hinder or prevent the "rescue" of the debtor company. To allow such other action to
continue would only add to the burden of the management committee or rehabilitation receiver,
whose time, effort and resources would be wasted in defending claims against the corporation
instead of being directed toward its restructuring and rehabilitation.

Whereas, the gravamen of the offense punished by B.P. Blg. 22 is the act of making and issuing
a worthless check; that is, a check that is dishonored upon its presentation for payment. It is
designed to prevent damage to trade, commerce, and banking caused by worthless checks. In
Lozano v. Martinez, this Court declared that it is not the nonpayment of an obligation which the
law punishes. The law is not intended or designed to coerce a debtor to pay his debt. The thrust
of the law is to prohibit, under pain of penal sanctions, the making and circulation of worthless
checks. Because of its deleterious effects on the public interest, the practice is proscribed by the
law. The law punishes the act not as an offense against property, but an offense against public
order. The prime purpose of the criminal action is to punish the offender in order to deter him
and others from committing the same or similar offense, to isolate him from society, to reform
and rehabilitate him or, in general, to maintain social order. Hence, the criminal prosecution is
designed to promote the public welfare by punishing offenders and deterring others.

Consequently, the filing of the case for violation of B.P. Blg. 22 is not a "claim" that can be
enjoined within the purview of P.D. No. 902-A. True, although conviction of the accused for the
alleged crime could result in the restitution, reparation or indemnification of the private offended
party for the damage or injury he sustained by reason of the felonious act of the accused,
nevertheless, prosecution for violation of B.P. Blg. 22 is a criminal action. (Emphasis supplied.)
The CA furthermore cited Tiong in this wise:17

Hence, accused-appellant cannot be deemed excused from honoring his duly issued checks by
the mere filing of the petition for suspension of payments before the SEC. Otherwise, an
absurdity will result such that " one who has engaged in criminal conduct could escape
punishment by the mere filing of a petition for rehabilitation by the corporation of which he is an
officer." (Emphasis supplied.)

However, what the CA failed to consider was that the facts of Tiong were not on all fours with
those of the present case and must be put in the proper context. In Tiong, the presentment for
payment and the dishonor of the checks took place before the Petition for Suspension of
Payments for Rehabilitation Purposes was filed with the SEC. There was already an obligation
to pay the amount covered by the checks. The criminal action for the violations of B.P. 22 was
filed for failure to meet this obligation. The criminal proceedings were already underway when
the SEC issued an Omnibus Order creating a Management Committee and consequently
suspending all actions for claims against the debtor therein. Thus, in Tiong, this Court took
pains to differentiate the criminal action, the civil liability and the administrative proceedings
involved.

In contrast, it is clear that prior to the presentment for payment and the subsequent demand
letters to petitioner, there was already a lawful Order from the SEC suspending all payments of
claims. It was incumbent on him to follow that SEC Order. He was able to sufficiently establish
that the accounts were closed pursuant to the Order, without which a different set of
circumstances might have dictated his liability for those checks.

Considering that there was a lawful Order from the SEC, the contract is deemed suspended.
When a contract is suspended, it temporarily ceases to be operative; and it again becomes
operative when a condition occurs – or a situation arises – warranting the termination of the
suspension of the contract.18

In other words, the SEC Order also created a suspensive condition. When a contract is subject
to a suspensive condition, its birth takes place or its effectivity commences only if and when the
event that constitutes the condition happens or is fulfilled.19 Thus, at the time private respondent
presented the September and October 1997 checks for encashment, it had no right to do so, as
there was yet no obligation due from petitioner.

Moreover, it is a basic principle in criminal law that any ambiguity in the interpretation or
application of the law must be made in favor of the accused. Surely, our laws should not be
interpreted in such a way that the interpretation would result in the disobedience of a lawful
order of an authority vested by law with the jurisdiction to issue the order.

Consequently, because there was a suspension of GSMC s obligations, petitioner may not be
held liable for the civil obligations of the corporation covered by the bank checks at the time this
case arose. However, it must be emphasized that her non-liability should not prejudice the right
of El Grande to pursue its claim through remedies available to it, subject to the SEC
proceedings regarding the application for corporate rehabilitation.

WHEREFORE, in view of the foregoing, the Petition is hereby GRANTED. The Decision dated 7
September 2010 and the Resolution dated 6 January 2011 of the Court of Appeals in CA-G.R.
CR No. 32642 are REVERSED and SET ASIDE. Criminal Case Nos. 301888 and 301889 are
DISMISSED, without prejudice to the right of El Grande Industrial Corporation to file the proper
civil action against G.G. Sportswear Manufacturing Corporation for the value of the ten (10)
checks.

SO ORDERED.
G.R. No. 150785             September 15, 2006

EMMA P. NUGUID, petitioner,
vs.
CLARITA S. NICDAO,1 respondent.

DECISION

CORONA, J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, Emma P. Nuguid
assails the decision of the Court of Appeals (CA) dated October 30, 2001 in CA-G.R. No.
23054:

WHEREFORE, the Petition for Review is hereby GRANTED and the Assailed

Decision dated May 10, 1999 of the Regional Trial Court [RTC], Branch 5, Bataan,
affirming the Decision dated January 11, 1999 of the First Municipal Circuit Trial Court of
Dinalupihan-Hermosa, Bataan is REVERSED and SET ASIDE.

The petitioner CLARITA S. NICDAO is hereby ACQUITTED of the offense charged. NO

COSTS.

SO ORDERED.2

Petitioner seeks a review of the decision with respect to the alleged lack of civil liability of
respondent Clarita S. Nicdao. Stemming from two cases of violation of BP 22,3 this petition
involves the following facts:

xxx       xxx       xxx

Accused Clarita S. Nicdao is charged with having committed the crime of Violation of BP
22 in fourteen (14) counts. The criminal complaints allege that sometime in 1996, from
April to August thereof, [respondent] and her husband [,] of Vignette Superstore [,]
approached [petitioner] and asked her if they [could] borrow money to settle some
obligations. Having been convinced by them and because of the close relationship of
[respondent] to [petitioner], the latter lent the former her money. Thus, every month, she
was persuaded to release P100,000.00 to the accused until the total amount reached
P1,150,000.00.

As security for the P1,150,000.00, [respondent] gave [petitioner] the following open
dated Hermosa Savings Bank (HSLB) (sic) with the assurance that if the entire amount
is not paid within one (1) year, [petitioner] can deposit the check:

Check No. Amount

7277 P100,000.00 (Exhibit "A")
7348 150,000.00 (Exhibit "A")
12118 100,000.00 (Exhibit "A")
8812 50,000.00 (Exhibit "A")
12102 100,000.00 (Exhibit "A")
 7255 100,000.00 (Exhibit "A")
2286 50,000.00 (Exhibit "A")
8128 100,000.00 (Exhibit "A")
7254 50,000.00 (Exhibit "A")
7278 100,000.00 (Exhibit "A")
4540 50,000.00 (Exhibit "A")
4523 50,000.00 (Exhibit "A")
12103 50,000.00 (Exhibit "A")
7294 100,000.00 (Exhibit "A")
  P1,150,000.00

In June 1997, [petitioner] together with Samson Ching demanded payment of the sums
[above-mentioned], but [respondent] refused to acknowledge the indebtedness. Thus, on
October 6, 1977, [petitioner] deposited all aforementioned checks in the bank of Samson
Ching totaling P1,150,000.00 since all the money given by her to [respondent] came
from Samson Ching. The checks were all returned for having been drawn against
insufficient funds (DAIF).

A verbal and written demand was made upon [respondent] to pay the amount
represented by the bounced checks, but [to] no avail. Hence, a complaint for violation of
BP 22 was filed against the [respondent]. 4(Citation omitted)

After petitioner instituted 14 criminal cases5 (docketed as Criminal Case Nos. 9458-9471) for
violation of BP 22 involving the sum of P1,150,000, corresponding warrants of arrest were
issued against respondent. On November 12, 1997, respondent was arraigned. She pleaded
not guilty and trial ensued.

In a decision dated January 11, 1999, Judge Manuel M. Tan of the Municipal Circuit Trial Court
of Dinalupihan, Bataan found respondent guilty of the charges against her. Respondent was
sentenced to pay P1,150,000, plus interest, and to suffer imprisonment equivalent to one year
for each violation of BP 22, or a total of 14 years of imprisonment.

On appeal, the decision was affirmed in toto by the Regional Trial Court of Dinalupihan, Bataan.
Respondent elevated the case to the CA. On October 30, 2001, the CA reversed the decision of
the lower courts and acquitted respondent. According to the CA, certain substantial facts were
overlooked by the trial court. These circumstances, if properly considered, justified a different
conclusion on the case.6

Petitioner now comes to us, raising this main issue: whether respondent remains civilly liable to
her for the sum of P1,150,000. In this connection, she asserts that respondent obtained loans
from her in the aggregate amount of P1,150,000 and that these loans have not been paid.

From the standpoint of its effects, a crime has a dual character: (1) as an offense against the
State because of the disturbance of the social order and (2) as an offense against the private
person injured by the crime unless it involves the crime of treason, rebellion, espionage,
contempt and others (wherein no civil liability arises on the part of the offender either because
there are no damages to be compensated or there is no private person injured by the crime7).
What gives rise to the civil liability is really the obligation of everyone to repair or to make whole
the damage caused to another by reason of his act or omission, whether done intentionally or
negligently and whether or not punishable by law.8

Extinction of penal action does not carry with it the eradication of civil liability, unless the
extinction proceeds from a declaration in the final judgment that the fact from which the civil
liability might arise did not exist.9

On one hand, as regards the criminal aspect of a violation of BP 22, suffice it to say that:

[t]he gravamen of BP 22 is the act of making and issuing a worthless check or one that
is dishonored upon its presentment for payment [and] the accused failed to satisfy the
amount of the check or make arrangement for its payment within 5 banking days from
notice of dishonor. The act is

malum prohibitum, pernicious and inimical to public welfare. Laws are created to achieve
a goal intended to guide and prevent against an evil or mischief. Why and to whom the
check was issued is irrelevant in determining culpability. The terms and conditions
surrounding the issuance of the checks are also irrelevant.10

On the other hand, the basic principle in civil liability ex delicto is that every person criminally
liable is also civilly liable, crime being one of the five sources of obligations under the Civil
Code.11 A person acquitted of a criminal charge, however, is not necessarily civilly free because
the quantum of proof required in criminal prosecution (proof beyond reasonable doubt) is
greater than that required for civil liability (mere preponderance of evidence12). In order to be
completely free from civil liability, a person's acquittal must be based on the fact that he did not
commit the offense.13 If the acquittal is based merely on reasonable doubt, the accused may still
be held civilly liable since this does not mean he did not commit the act complained of.14 It may
only be that the facts proved did not constitute the offense charged.15

Acquittal will not bar a civil action in the following cases: (1) where the acquittal is based on
reasonable doubt as only preponderance of evidence is required in civil cases; (2) where the
court declared the accused's liability is not criminal but only civil in nature and (3) where the civil
liability does not arise from or is not based upon the criminal act of which the accused was
acquitted.16

In this petition, we find no reason to ascribe any civil liability to respondent. As found by the CA,
her supposed civil liability had already been fully satisfied and extinguished by payment. The
statements of the appellate court leave no doubt that respondent, who was acquitted from the
charges against her, had already been completely relieved of civil liability:

[Petitioner] does not dispute the fact that payments have already been made by
petitioner in [the stated] amounts but argues that the Demand Draft represented
payment of a previous obligation. However, no evidence of whatever nature was
presented by the prosecution to substantiate their claim that there was indeed a
previous obligation involving the same amount for which the demand draft was
given. Except for this bare allegation, which is self-serving, no documentary
evidence was ever adduced that there were previous transactions involving the
subject amount.
 Likewise, [petitioner] admitted having received the cash payments from petitioner on a
daily basis but argues that the same were applied to interest payments only. It however
appears that [petitioner] was charging [respondent] with an exorbitant rate of interest…
on a daily basis. xxx In any event, the cash payments [made] were recorded at the
back of the cigarette cartons by [petitioner] in her own handwriting as testified to
by [respondent] and her employees, Melanie Tolentino and Jocelyn Nicdao.
Indeed, the daily cash payments marked in evidence as Exhibits 7 to 15 reveal that
[respondent] had already paid her obligation to [petitioner] in the amount of
P5,780,000.00 as of July 21, 1997 and that she stopped making further payments
when she realized that she had already paid such amount.

From the foregoing, it would appear that [respondent] made a total payment of
P6,980,000.00, inclusive of the P1,200,000.00 Demand Draft, which is definitely
much more than P1,150,000.00, the amount she actually borrowed from
[petitioner]. These facts were never rebutted by [petitioner].

Moreover, we find no evidence was presented by the prosecution to prove that there
was a stipulation in writing that interest will be paid by [respondent] on her loan
obligations [as required under Article 1956 of the Civil Code].

xxx       xxx       xxx

By and large, the obligation of [respondent] has already been extinguished long before
the encashment of the subject checks. A check is said to apply for account only when
there is still a pre-existing obligation. In the case at bench, the pre-existing obligation
was extinguished after full payment was made by [respondent]. We therefore find the
clear and convincing documentary evidence of payment presented by [respondent]
worthy of credence.17 (emphasis supplied)

WHEREFORE, the petition is hereby DENIED. The October 30, 2001 decision of the Court of
Appeals in CA-G.R. No. 23054 is AFFIRMED.

Costs against petitioner.

SO ORDERED.

Philippine Supreme Court Jurisprudence > Year 2010 > February 2010 Decisions > [G.R. No.

181409 : February 11, 2010] INTESTATE ESTATE OF MANOLITA GONZALES VDA. DE
CARUNGCONG, REPRESENTED BY MEDIATRIX CARUNGCONG, AS ADMINISTRATRIX,
PETITIONER, VS. PEOPLE OF THE PHILIPPINES AND WILLIAM SATO, RESPONDENTS. :

THIRD DIVISION

[G.R. No. 181409 : February 11, 2010]

INTESTATE ESTATE OF MANOLITA GONZALES VDA. DE CARUNGCONG,

REPRESENTED BY MEDIATRIX CARUNGCONG, AS ADMINISTRATRIX, PETITIONER, VS.
PEOPLE OF THE PHILIPPINES AND WILLIAM SATO, RESPONDENTS.

DECISION

CORONA, J.:

Article 332 of the Revised Penal Code provides:

ART. 332. Persons exempt from criminal liability. - No criminal, but only civil liability shall result
from the commission of the crime of theft, swindling, or malicious mischief committed or caused
mutually by the following persons:

1. Spouses, ascendants and descendants, or relatives by affinity in the same

line;

2. The widowed spouse with respect to the property which belonged to the
deceased spouse before the same shall have passed into the possession of
another; and

3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together.

The exemption established by this article shall not be applicable to strangers participating in the
commission of the crime. (emphasis supplied)

For purposes of the aforementioned provision, is the relationship by affinity created between the
husband and the blood relatives of his wife (as well as between the wife and the blood relatives
of her husband) dissolved by the death of one spouse, thus ending the marriage which created
such relationship by affinity? Does the beneficial application of Article 332 cover the complex
crime of estafa thru falsification?

Mediatrix G. Carungcong, in her capacity as the duly appointed administratrix[1] of petitioner

intestate estate of her deceased mother Manolita Gonzales vda. de Carungcong, filed a
complaint-affidavit[2] for estafa against her brother-in-law, William Sato, a Japanese national.
Her complaint-affidavit read:
I, MEDIATRIX CARUNGCONG Y GONZALE[S], Filipino, of legal age, single, and resident of
Unit 1111, Prince Gregory Condominium, 105 12th Avenue, Cubao, Quezon City, after being
duly sworn, depose and state that:

1. I am the duly appointed Administratrix of the Intestate Estate of Manolita Carungcong Y

Gonzale[s], docketed as Spec. Procs. No. [Q]-95-23621[,] Regional Trial Court of Quezon City,
Branch 104, being one (1) of her surviving daughters. Copy of the Letters of Administration
dated June 22, 1995 is hereto attached as Annex "A" to form an integral part hereof.

2. As such Administratrix, I am duty bound not only to preserve the properties of the Intestate
Estate of Manolita Carungcong Y Gonzale[s], but also to recover such funds and/or properties
as property belonging to the estate but are presently in the possession or control of other
parties.

3. After my appointment as Administratrix, I was able to confer with some of the children of my
sister Zenaida Carungcong Sato[,] who predeceased our mother Manolita Carungcong Y
Gonzales, having died in Japan in 1991.

4. In my conference with my nieces Karen Rose Sato and Wendy Mitsuko Sato, age[d] 27 and
24 respectively, I was able to learn that prior to the death of my mother Manolita Carungcong Y
Gonzale[s], [s]pecifically on o[r] about November 24, 1992, their father William Sato, through
fraudulent misrepresentations, was able to secure the signature and thumbmark of my mother
on a Special Power of Attorney whereby my niece Wendy Mitsuko Sato, who was then only
twenty (20) years old, was made her attorney-in-fact, to sell and dispose four (4) valuable
pieces of land in Tagaytay City. Said Special Power of Attorney, copy of which is attached as
ANNEX "A" of the Affidavit of Wendy Mitsuko Sato, was signed and thumbmark[ed] by my
mother because William Sato told her that the documents she was being made to sign involved
her taxes. At that time, my mother was completely blind, having gone blind almost ten (10)
years prior to November, 1992.

5. The aforesaid Special Power of Attorney was signed by my mother in the presence of Wendy,
my other niece Belinda Kiku Sato, our maid Mana Tingzon, and Governor Josephine Ramirez
who later became the second wife of my sister's widower William Sato.

6. Wendy Mitsuko Sato attests to the fact that my mother signed the document in the belief that
they were in connection with her taxes, not knowing, since she was blind, that the same was in
fact a Special Power of Attorney to sell her Tagaytay properties.

7. On the basis of the aforesaid Special Power of Attorney, William Sato found buyers for the
property and made my niece Wendy Mitsuko Sato sign three (3) deeds of absolute sale in favor
of (a) Anita Ng (Doc. 2194, Page No. 41, Book No. V, Series of 1992 of Notary Public Vicente B.
Custodio), (b) Anita Ng (Doc. No. 2331, Page No. 68, Book No. V, Series of 1992 of Notary
Public Vicente B. Custodio) and (c) Ruby Lee Tsai (Doc. No. II, Page No. 65, Book No. II,
Series of 1993 of Notary Public Toribio D. Labid). x x x

8. Per the statement of Wendy Mitsuko C. Sato, the considerations appearing on the deeds of
absolute sale were not the true and actual considerations received by her father William Sato
from the buyers of her grandmother's properties. She attests that Anita Ng actually paid
P7,000,000.00 for the property covered by TCT No. 3148 and P7,034,000.00 for the property
covered by TCT No. 3149. All the aforesaid proceeds were turned over to William Sato who
undertook to make the proper accounting thereof to my mother, Manolita Carungcong
Gonzale[s].

9. Again, per the statement of Wendy Mitsuko C. Sato, Ruby Lee Tsai paid P8,000,000.00 for
the property covered by Tax Declaration No. GR-016-0735, and the proceeds thereof were
likewise turned over to William Sato.

10. The considerations appearing on the deeds of sale were falsified as Wendy Mitsuko C. Sato
has actual knowledge of the true amounts paid by the buyers, as stated in her Affidavit, since
she was the signatory thereto as the attorney-in-fact of Manolita Carungcong Y Gonzale[s].

11. Wendy was only 20 years old at the time and was not in any position to oppose or to refuse
her father's orders.

12. After receiving the total considerations for the properties sold under the power of attorney
fraudulently secured from my mother, which total P22,034,000.00, William Sato failed to
account for the same and never delivered the proceeds to Manolita Carungcong Y Gonzale[s]
until the latter died on June 8, 1994.

13. Demands have been made for William Sato to make an accounting and to deliver the
proceeds of the sales to me as Administratrix of my mother's estate, but he refused and failed,
and continues to refuse and to fail to do so, to the damage and prejudice of the estate of the
deceased Manolita Carungcong Y Gonzale[s] and of the heirs which include his six (6) children
with my sister Zenaida Carungcong Sato. x x x[3]

Wendy Mitsuko Sato's supporting affidavit and the special power of attorney allegedly issued by
the deceased Manolita Gonzales vda. de Carungcong in favor of Wendy were attached to the
complaint-affidavit of Mediatrix.

In a resolution dated March 25, 1997, the City Prosecutor of Quezon City dismissed the
complaint.[4] On appeal, however, the Secretary of Justice reversed and set aside the resolution
dated March 25, 1997 and directed the City Prosecutor of Quezon City to file an Information
against Sato for violation of Article 315, paragraph 3(a) of the Revised Penal Code.[5] Thus, the
following Information was filed against Sato in the Regional Trial Court of Quezon City, Branch
87:[6]

INFORMATION

The undersigned accuses WILLIAM SATO of the crime of ESTAFA under Article 315[,] par. 3(a)
of the Revised Penal Code, committed as follows:

That on or about the 24th day of November, 1992, in Quezon City, Philippines, the above-named
accused, by means of deceit, did, then and there, wil[l]fully, unlawfully and feloniously defraud
MANOLITA GONZALES VDA. DE CARUNGCONG in the following manner, to wit: the said
accused induced said Manolita Gonzales Vda. De Carungcong[,] who was already then blind
and 79 years old[,] to sign and thumbmark a special power of attorney dated November 24,
1992 in favor of Wendy Mitsuko C. Sato, daughter of said accused, making her believe that said
document involved only her taxes, accused knowing fully well that said document authorizes
Wendy Mitsuko C. Sato, then a minor, to sell, assign, transfer or otherwise dispose of to any
person or entity of her properties all located at Tagaytay City, as follows:
 1. One Thousand Eight Hundred Seven(ty) One (1,871) square meters more or less
and covered by T.C.T. No. 3147;

2. Five Hundred Forty (540) square meters more or less and covered by T.C.T. No.
3148 with Tax Declaration No. GR-016-0722, Cadastral Lot No. 7106;

3. Five Hundred Forty (540) square meters more or less and covered by T.C.T. No.
3149 with Tax Declaration No. GR-016-0721, Cadastral Lot No. 7104;

4. Eight Hundred Eighty Eight (888) square meters more or less with Tax
Declaration No. GR-016-1735, Cadastral Lot No. 7062;

registered in the name of Manolita Gonzales Vda. De Carungcong, and once in the possession
of the said special power of attorney and other pertinent documents, said accused made Wendy
Mitsuko Sato sign the three (3) Deeds of Absolute Sale covering Transfer Certificate of Title
[TCT] No. 3148 for P250,000.00, [TCT] No. 3149 for P250,000.00 and [Tax Declaration] GR-
016-0735 for P650,000.00 and once in possession of the proceeds of the sale of the above
properties, said accused, misapplied, misappropriated and converted the same to his own
personal use and benefit, to the damage and prejudice of the heirs of Manolita Gonzales Vda.
De Carungcong who died in 1994.

Contrary to law.[7]

Subsequently, the prosecution moved for the amendment of the Information so as to increase
the amount of damages from P1,150,000, the total amount stated in the deeds of sale, to
P22,034,000, the actual amount received by Sato.

Sato moved for the quashal of the Information, claiming that under Article 332 of the Revised
Penal Code, his relationship to the person allegedly defrauded, the deceased Manolita who was
his mother-in-law, was an exempting circumstance.

The prosecution disputed Sato's motion in an opposition dated March 29, 2006.

In an order dated April 17, 2006,[8] the trial court granted Sato's motion and ordered the
dismissal of the criminal case:

The Trial Prosecutor's contention is that the death of the wife of the accused severed the
relationship of affinity between accused and his mother-in-law. Therefore, the mantle of
protection provided to the accused by the relationship is no longer obtaining.

A judicious and thorough examination of Article 332 of the Revised Penal Code convinces this
Court of the correctness of the contention of the [d]efense. While it is true that the death of
Zenaida Carungcong-Sato has extinguished the marriage of accused with her, it does not erase
the fact that accused and Zenaida's mother, herein complainant, are still son[-in-law] and
mother-in-law and they remained son[-in-law] and mother-in-law even beyond the death of
Zenaida.

Article 332(1) of the Revised Penal Code, is very explicit and states no proviso. "No criminal, but
only civil liability[,] shall result from the commission of the crime of theft, swindling or malicious
mischief committed or caused mutually by xxx 1) spouses, ascendants and descendants,
or relatives by affinity in the same line."

Article 332, according to Aquino, in his Commentaries [to] Revised Penal Code, preserves
family harmony and obviates scandal, hence even in cases of theft and malicious mischief,
where the crime is committed by a stepfather against his stepson, by a grandson against his
grandfather, by a son against his mother, no criminal liability is incurred by the accused only civil
(Vicente Alavare, 52 Phil. 65; Adame, CA 40 OG 12th Supp. 63; Cristobal, 84 Phil. 473).

Such exempting circumstance is applicable herein.

WHEREFORE, finding the Motion to Quash Original Information meritorious, the same is
GRANTED and, as prayed for, case is hereby DISMISSED.

SO ORDERED.[9] (underlining supplied in the original)

The prosecution's motion for reconsideration[10] was denied in an order dated June 2, 2006.[11]

Dissatisfied with the trial court's rulings, the intestate estate of Manolita, represented by
Mediatrix, filed a petition for certiorari in the Court of Appeals[12] which, however, in a
decision[13] dated August 9, 2007, dismissed it. It ruled:

[W]e sustain the finding of [the trial court] that the death of Zenaida did not extinguish the
relationship by affinity between her husband, private respondent Sato, and her mother Manolita,
and does not bar the application of the exempting circumstance under Article 332(1) of the
Revised Penal Code in favor of private respondent Sato.

We further agree with the submission of the [Office of the Solicitor General (OSG)] that nothing
in the law and/or existing jurisprudence supports the argument of petitioner that the fact of death
of Zenaida dissolved the relationship by affinity between Manolita and private respondent Sato,
and thus removed the protective mantle of Article 332 of the Revised Penal Code from said
private respondent; and that notwithstanding the death of Zenaida, private respondent Sato
remains to be the son-in-law of Manolita, and a brother-in-law of petitioner administratrix. As
further pointed out by the OSG, the filing of the criminal case for estafa against private
respondent Sato already created havoc among members of the Carungcong and Sato families
as private respondent's daughter Wendy Mitsuko Sato joined cause with her aunt [Mediatrix]
Carungcong y Gonzales, while two (2) other children of private respondent, William Francis and
Belinda Sato, took the side of their father.

There is a dearth of jurisprudence and/or commentaries elaborating on the provision of Article

332 of the Revised Penal Code. However, from the plain language of the law, it is clear that the
exemption from criminal liability for the crime of swindling (estafa) under Article 315 of the
Revised Penal Code applies to private respondent Sato, as son-in-law of Manolita, they being
"relatives by affinity in the same line" under Article 332(1) of the same Code. We cannot draw
the distinction that following the death of Zenaida in 1991, private respondent Sato is no longer
the son-in-law of Manolita, so as to exclude the former from the exempting circumstance
provided for in Article 332 (1) of the Revised Penal Code.

Ubi lex non distinguit nec nos distinguere debemos. Basic is the rule in statutory construction
that where the law does not distinguish, the courts should not distinguish. There should be no
distinction in the application of law where none is indicated. The courts could only distinguish
where there are facts or circumstances showing that the lawgiver intended a distinction or
qualification. In such a case, the courts would merely give effect to the lawgiver's intent. The
solemn power and duty of the Court to interpret and apply the law does not include the power to
correct by reading into the law what is not written therein.

Further, it is an established principle of statutory construction that penal laws are strictly
construed against the State and liberally in favor of the accused. Any reasonable doubt must be
resolved in favor of the accused. In this case, the plain meaning of Article 332 (1) of the Revised
Penal Code's simple language is most favorable to Sato.[14]

The appellate court denied reconsideration.[15] Hence, this petition.

Petitioner contends that the Court of Appeals erred in not reversing the orders of the trial court.
It cites the commentary of Justice Luis B. Reyes in his book on criminal law that the rationale of
Article 332 of the Revised Penal Code exempting the persons mentioned therein from criminal
liability is that the law recognizes the presumed co-ownership of the property between the
offender and the offended party. Here, the properties subject of the estafa case were owned
by Manolita whose daughter, Zenaida Carungcong-Sato (Sato's wife), died on January 28,
1991. Hence, Zenaida never became a co-owner because, under the law, her right to the
three parcels of land could have arisen only after her mother's death. Since
Zenaida predeceased her mother, Manolita, no such right came about and the mantle of
protection provided to Sato by the relationship no longer existed.

Sato counters that Article 332 makes no distinction that the relationship may not be invoked in
case of death of the spouse at the time the crime was allegedly committed. Thus, while the
death of Zenaida extinguished her marriage with Sato, it did not dissolve the son-in-law and
mother-in-law relationship between Sato and Zenaida's mother, Manolita.

For his part, the Solicitor General maintains that Sato is covered by the exemption from criminal
liability provided under Article 332. Nothing in the law and jurisprudence supports petitioner's
claim that Zenaida's death dissolved the relationship by affinity between Sato and Manolita. As
it is, the criminal case against Sato created havoc among the members of the Carungcong and
Sato families, a situation sought to be particularly avoided by Article 332's provision exempting
a family member committing theft, estafa or malicious mischief from criminal liability and
reducing his/her liability to the civil aspect only.

The petition has merit.

The resolution of this case rests on the interpretation of Article 332 of the Revised Penal Code.
In particular, it calls for the determination of the following: (1) the effect of death on the
relationship by affinity created between a surviving spouse and the blood relatives of the
deceased spouse and (2) the extent of the coverage of Article 332.

Effect of Death on Relationship

By Affinity as Absolutory Cause

Article 332 provides for an absolutory cause[16] in the crimes of theft, estafa (or swindling) and
malicious mischief. It limits the responsibility of the offender to civil liability and frees him from
criminal liability by virtue of his relationship to the offended party.
In connection with the relatives mentioned in the first paragraph, it has been held that included
in the exemptions are parents-in-law, stepparents and adopted children.[17] By virtue thereof, no
criminal liability is incurred by the stepfather who commits malicious mischief against his
stepson;[18] by the stepmother who commits theft against her stepson;[19] by the stepfather who
steals something from his stepson;[20] by the grandson who steals from his grandfather;[21] by the
accused who swindles his sister-in-law living with him;[22] and by the son who steals a ring from
his mother.[23]

Affinity is the relation that one spouse has to the blood relatives of the other spouse. It is a
relationship by marriage or a familial relation resulting from marriage.[24] It is a fictive kinship, a
fiction created by law in connection with the institution of marriage and family relations.

If marriage gives rise to one's relationship by affinity to the blood relatives of one's spouse, does
the extinguishment of marriage by the death of the spouse dissolve the relationship by affinity?

Philippine jurisprudence has no previous encounter with the issue that confronts us in this case.
That is why the trial and appellate courts acknowledged the "dearth of jurisprudence and/or
commentaries" on the matter. In contrast, in the American legal system, there are two views on
the subject. As one Filipino author observed:

In case a marriage is terminated by the death of one of the spouses, there are conflicting views.
There are some who believe that relationship by affinity is not terminated whether there are
children or not in the marriage (Carman vs. Newell, N.Y. 1 [Denio] 25, 26). However, the better
view supported by most judicial authorities in other jurisdictions is that, if the spouses have no
living issues or children and one of the spouses dies, the relationship by affinity is dissolved. It
follows the rule that relationship by affinity ceases with the dissolution of the marriage which
produces it (Kelly v. Neely, 12 Ark. 657, 659, 56 Am Dec. 288). On the other hand, the
relationship by affinity is continued despite the death of one of the spouses where there are
living issues or children of the marriage "in whose veins the blood of the parties are
commingled, since the relationship of affinity was continued through the medium of the issue of
the marriage" (Paddock vs. Wells, 2 Barb. Ch. 331, 333).[25]

The first view (the terminated affinity view) holds that relationship by affinity terminates with the
dissolution of the marriage either by death or divorce which gave rise to the relationship of
affinity between the parties.[26] Under this view, the relationship by affinity is simply coextensive
and coexistent with the marriage that produced it. Its duration is indispensably and necessarily
determined by the marriage that created it. Thus, it exists only for so long as the marriage
subsists, such that the death of a spouse ipso facto ends the relationship by affinity of the
surviving spouse to the deceased spouse's blood relatives.

The first view admits of an exception. The relationship by affinity continues even after the death
of one spouse when there is a surviving issue.[27] The rationale is that the relationship is
preserved because of the living issue of the marriage in whose veins the blood of both parties is
commingled.[28]

The second view (the continuing affinity view) maintains that relationship by affinity between the
surviving spouse and the kindred of the deceased spouse continues even after the death of the
deceased spouse, regardless of whether the marriage produced children or not.[29] Under this
view, the relationship by affinity endures even after the dissolution of the marriage that produced
it as a result of the death of one of the parties to the said marriage. This view considers that,
where statutes have indicated an intent to benefit step-relatives or in-laws, the "tie of affinity"
between these people and their relatives-by-marriage is not to be regarded as terminated upon
the death of one of the married parties.[30]

After due consideration and evaluation of the relative merits of the two views, we hold that the
second view is more consistent with the language and spirit of Article 332(1) of the Revised
Penal Code.

First, the terminated affinity view is generally applied in cases of jury disqualification and incest.
[31]
 On the other hand, the continuing affinity view has been applied in the interpretation of laws
that intend to benefit step-relatives or in-laws. Since the purpose of the absolutory cause in
Article 332(1) is meant to be beneficial to relatives by affinity within the degree covered under
the said provision, the continuing affinity view is more appropriate.

Second, the language of Article 332(1) which speaks of "relatives by affinity in the same line" is
couched in general language. The legislative intent to make no distinction between the spouse
of one's living child and the surviving spouse of one's deceased child (in case of a son-in-law or
daughter-in-law with respect to his or her parents-in-law)[32] can be drawn from Article 332(1) of
the Revised Penal Code without doing violence to its language.

Third, the Constitution declares that the protection and strengthening of the family as a basic
autonomous social institution are policies of the State and that it is the duty of the State to
strengthen the solidarity of the family.[33] Congress has also affirmed as a State and national
policy that courts shall preserve the solidarity of the family.[34] In this connection, the spirit of
Article 332 is to preserve family harmony and obviate scandal.[35] The view that relationship by
affinity is not affected by the death of one of the parties to the marriage that created it is more in
accord with family solidarity and harmony.

Fourth, the fundamental principle in applying and in interpreting criminal laws is to resolve all
doubts in favor of the accused. In dubio pro reo. When in doubt, rule for the accused.[36] This is
in consonance with the constitutional guarantee that the accused shall be presumed innocent
unless and until his guilt is established beyond reasonable doubt.[37]

Intimately related to the in dubio pro reo principle is the rule of lenity.[38] The rule applies when
the court is faced with two possible interpretations of a penal statute, one that is prejudicial to
the accused and another that is favorable to him. The rule calls for the adoption of an
interpretation which is more lenient to the accused.

Lenity becomes all the more appropriate when this case is viewed through the lens of the basic
purpose of Article 332 of the Revised Penal Code to preserve family harmony by providing an
absolutory cause. Since the goal of Article 332(1) is to benefit the accused, the Court should
adopt an application or interpretation that is more favorable to the accused. In this case, that
interpretation is the continuing affinity view.

Thus, for purposes of Article 332(1) of the Revised Penal Code, we hold that the relationship by
affinity created between the surviving spouse and the blood relatives of the deceased spouse
survives the death of either party to the marriage which created the affinity. (The same principle
applies to the justifying circumstance of defense of one's relatives under Article 11[2] of the
Revised Penal Code, the mitigating circumstance of immediate vindication of grave offense
committed against one's relatives under Article 13[5] of the same Code and the absolutory cause
of relationship in favor of accessories under Article 20 also of the same Code.)

SCOPE OF ARTICLE 332 OF

THE REVISED PENAL CODE

The absolutory cause under Article 332 of the Revised Penal Code only applies to the felonies
of theft, swindling and malicious mischief. Under the said provision, the State condones the
criminal responsibility of the offender in cases of theft, swindling and malicious mischief. As an
act of grace, the State waives its right to prosecute the offender for the said crimes but leaves
the private offended party with the option to hold the offender civilly liable.

However, the coverage of Article 332 is strictly limited to the felonies mentioned therein. The
plain, categorical and unmistakable language of the provision shows that it applies exclusively
to the simple crimes of theft, swindling and malicious mischief. It does not apply where any of
the crimes mentioned under Article 332 is complexed with another crime, such as theft through
falsification or estafa through falsification.[39]

The Information against Sato charges him with estafa. However, the real nature of the offense is
determined by the facts alleged in the Information, not by the designation of the offense.[40] What
controls is not the title of the Information or the designation of the offense but the actual facts
recited in the Information.[41] In other words, it is the recital of facts of the commission of the
offense, not the nomenclature of the offense, that determines the crime being charged in the
Information.[42] It is the exclusive province of the court to say what the crime is or what it is
named.[43] The determination by the prosecutor who signs the Information of the crime
committed is merely an opinion which is not binding on the court.[44]

A reading of the facts alleged in the Information reveals that Sato is being charged not with
simple estafa but with the complex crime of estafa through falsification of public documents. In
particular, the Information states that Sato, by means of deceit, intentionally defrauded Manolita
committed as follows:

(a) Sato presented a document to Manolita (who was already blind at that time) and induced
her to sign and thumbmark the same;
(b) he made Manolita believe that the said document was in connection with her taxes when it
was in fact a special power of attorney (SPA) authorizing his minor daughter Wendy to sell,
assign, transfer or otherwise dispose of Manolita's properties in Tagaytay City;
(c) relying on Sato's inducement and representation, Manolita signed and thumbmarked the
SPA in favor of Wendy Mitsuko Sato, daughter of Sato;
(d) using the document, he sold the properties to third parties but he neither delivered the
proceeds to Manolita nor accounted for the same and despite repeated demands, he failed
and refused to deliver the proceeds, to the damage and prejudice of the estate of Manolita.

The above averments in the Information show that the estafa was committed by attributing to
Manolita (who participated in the execution of the document) statements other than those in fact
made by her. Manolita's acts of signing the SPA and affixing her thumbmark to that document
were the very expression of her specific intention that something be done about her taxes. Her
signature and thumbmark were the affirmation of her statement on such intention as she only
signed and thumbmarked the SPA (a document which she could not have read) because of
Sato's representation that the document pertained to her taxes. In signing and thumbmarking
the document, Manolita showed that she believed and adopted the representations of Sato as to
what the document was all about, i.e., that it involved her taxes. Her signature and thumbmark,
therefore, served as her conformity to Sato's proposal that she execute a document to settle her
taxes.

Thus, by inducing Manolita to sign the SPA, Sato made it appear that Manolita granted his
daughter Wendy a special power of attorney for the purpose of selling, assigning, transferring or
otherwise disposing of Manolita's Tagaytay properties when the fact was that Manolita signed
and thumbmarked the document presented by Sato in the belief that it pertained to her taxes.
Indeed, the document itself, the SPA, and everything that it contained were falsely attributed to
Manolita when she was made to sign the SPA.

Moreover, the allegations in the Information that

(1) "once in the possession of the said special power of attorney and other pertinent
documents, [Sato] made Wendy Mitsuko Sato sign the three (3) Deeds of Absolute Sale"
and
(2) "once in possession of the proceeds of the sale of the above properties, said accused,
misapplied, misappropriated and converted the same to his own personal use and benefit"

raise the presumption that Sato, as the possessor of the falsified document and the one who
benefited therefrom, was the author thereof.

Furthermore, it should be noted that the prosecution moved for the amendment of the
Information so as to increase the amount of damages from P1,150,000 to P22,034,000. This
was granted by the trial court and was affirmed by the Court of Appeals on certiorari. This meant
that the amended Information would now state that, while the total amount of consideration
stated in the deeds of absolute sale was only P1,150,000, Sato actually received the total
amount of P22,034,000 as proceeds of the sale of Manolita's properties.[45] This also meant that
the deeds of sale (which were public documents) were also falsified by making untruthful
statements as to the amounts of consideration stated in the deeds.

Therefore, the allegations in the Information essentially charged a crime that was not simple
estafa. Sato resorted to falsification of public documents (particularly, the special power of
attorney and the deeds of sale) as a necessary means to commit the estafa.

Since the crime with which respondent was charged was not simple estafa but the complex
crime of estafa through falsification of public documents, Sato cannot avail himself of the
absolutory cause provided under Article 332 of the Revised Penal Code in his favor.

EFFECT OF ABSOLUTORY CAUSE UNDER

ARTICLE 332 ON CRIMINAL LIABILITY
FOR THE COMPLEX CRIME OF ESTAFA
THROUGH FALSIFICATION OF PUBLIC
DOCUMENTS

The question may be asked: if the accused may not be held criminally liable for simple estafa by
virtue of the absolutory cause under Article 332 of the Revised Penal Code, should he not be
absolved also from criminal liability for the complex crime of estafa through falsification of public
documents? No.
True, the concurrence of all the elements of the two crimes of estafa and falsification of public
document is required for a proper conviction for the complex crime of estafa through falsification
of public document. That is the ruling in Gonzaludo v. People.[46] It means that the prosecution
must establish that the accused resorted to the falsification of a public document as a necessary
means to commit the crime of estafa.

However, a proper appreciation of the scope and application of Article 332 of the Revised Penal
Code and of the nature of a complex crime would negate exemption from criminal liability for the
complex crime of estafa through falsification of public documents, simply because the accused
may not be held criminally liable for simple estafa by virtue of the absolutory cause under Article
332.

The absolutory cause under Article 332 is meant to address specific crimes against property,
namely, the simple crimes of theft, swindling and malicious mischief. Thus, all other crimes,
whether simple or complex, are not affected by the absolutory cause provided by the
said provision. To apply the absolutory cause under Article 332 of the Revised Penal Code to
one of the component crimes of a complex crime for the purpose of negating the existence of
that complex crime is to unduly expand the scope of Article 332. In other words, to apply Article
332 to the complex crime of estafa through falsification of public document would be to
mistakenly treat the crime of estafa as a separate simple crime, not as the component crime
that it is in that situation. It would wrongly consider the indictment as separate charges of estafa
and falsification of public document, not as a single charge for the single (complex) crime of
estafa through falsification of public document.

Under Article 332 of the Revised Penal Code, the State waives its right to hold the offender
criminally liable for the simple crimes of theft, swindling and malicious mischief and considers
the violation of the juridical right to property committed by the offender against certain family
members as a private matter and therefore subject only to civil liability. The waiver does not
apply when the violation of the right to property is achieved through (and therefore inseparably
intertwined with) a breach of the public interest in the integrity and presumed authenticity of
public documents. For, in the latter instance, what is involved is no longer simply the
property right of a family relation but a paramount public interest.

The purpose of Article 332 is to preserve family harmony and obviate scandal.[47] Thus, the
action provided under the said provision simply concerns the private relations of the parties as
family members and is limited to the civil aspect between the offender and the offended party.
When estafa is committed through falsification of a public document, however, the matter
acquires a very serious public dimension and goes beyond the respective rights and liabilities of
family members among themselves. Effectively, when the offender resorts to an act that
breaches public interest in the integrity of public documents as a means to violate the property
rights of a family member, he is removed from the protective mantle of the absolutory cause
under Article 332.

In considering whether the accused is liable for the complex crime of estafa through falsification
of public documents, it would be wrong to consider the component crimes separately from each
other. While there may be two component crimes (estafa and falsification of documents),
both felonies are animated by and result from one and the same criminal intent for which there
is only one criminal liability.[48] That is the concept of a complex crime. In other words, while
there are two crimes, they are treated only as one, subject to a single criminal liability.

As opposed to a simple crime where only one juridical right or interest is violated (e.g., homicide
which violates the right to life, theft which violates the right to property),[49] a complex crime
constitutes a violation of diverse juridical rights or interests by means of diverse acts, each of
which is a simple crime in itself.[50] Since only a single criminal intent underlies the diverse acts,
however, the component crimes are considered as elements of a single crime, the complex
crime. This is the correct interpretation of a complex crime as treated under Article 48 of the
Revised Penal Code.

In the case of a complex crime, therefore, there is a formal (or ideal) plurality of crimes where
the same criminal intent results in two or more component crimes constituting a complex crime
for which there is only one criminal liability.[51] (The complex crime of estafa through falsification
of public document falls under this category.) This is different from a material (or real) plurality of
crimes where different criminal intents result in two or more crimes, for each of which the
accused incurs criminal liability.[52] The latter category is covered neither by the concept of
complex crimes nor by Article 48.

Under Article 48 of the Revised Penal Code, the formal plurality of crimes (concursus
delictuorum or concurso de delitos) gives rise to a single criminal liability and requires the
imposition of a single penalty:

Although [a] complex crime quantitatively consists of two or more crimes, it is only one crime
in law on which a single penalty is imposed and the two or more crimes constituting the same
are more conveniently termed as component crimes.[53] (emphasis supplied)

-- ∞ -- -- ∞ -- -- ∞ --

In [a] complex crime, although two or more crimes are actually committed, they constitute
only one crime in the eyes of the law as well as in the conscience of the offender. The offender
has only one criminal intent. Even in the case where an offense is a necessary means for
committing the other, the evil intent of the offender is only one.[54]

For this reason, while a conviction for estafa through falsification of public document requires
that the elements of both estafa and falsification exist, it does not mean that the criminal liability
for estafa may be determined and considered independently of that for falsification. The two
crimes of estafa and falsification of public documents are not separate crimes but
component crimes of the single complex crime of estafa and falsification of public
documents.

Therefore, it would be incorrect to claim that, to be criminally liable for the complex crime of
estafa through falsification of public document, the liability for estafa should be considered
separately from the liability for falsification of public document. Such approach would disregard
the nature of a complex crime and contradict the letter and spirit of Article 48 of the Revised
Penal Code. It would wrongly disregard the distinction between formal plurality and material
plurality, as it improperly treats the plurality of crimes in the complex crime of estafa through
falsification of public document as a mere material plurality where the felonies are considered as
separate crimes to be punished individually.

FALSIFICATION OF PUBLIC DOCUMENTS MAY BE

A NECESSARY MEANS FOR COMMITTING
ESTAFA EVEN UNDER ARTICLE 315 (3[A])
The elements of the offense of estafa punished under Article 315 (3[a]) of the Revised Penal
Code are as follows:

(1) the offender induced the offended party to sign a document;

(2) deceit was employed to make the offended party sign the document;

(3) the offended party personally signed the document and

(4) prejudice is caused to the offended party.

While in estafa under Article 315(a) of the Revised Penal Code, the law does not require that
the document be falsified for the consummation thereof, it does not mean that the falsification of
the document cannot be considered as a necessary means to commit the estafa under that
provision.

The phrase "necessary means" does not connote indispensable means for if it did, then the
offense as a "necessary means" to commit another would be an indispensable element of the
latter and would be an ingredient thereof.[55] In People v. Salvilla,[56] the phrase "necessary
means" merely signifies that one crime is committed to facilitate and insure the commission of
the other.[57] In this case, the crime of falsification of public document, the SPA, was such a
"necessary means" as it was resorted to by Sato to facilitate and carry out more effectively his
evil design to swindle his mother-in-law. In particular, he used the SPA to sell the Tagaytay
properties of Manolita to unsuspecting third persons.

When the offender commits in a public document any of the acts of falsification enumerated in
Article 171 of the Revised Penal Code as a necessary means to commit another crime, like
estafa, theft or malversation, the two crimes form a complex crime under Article 48 of the same
Code.[58] The falsification of a public, official or commercial document may be a means of
committing estafa because, before the falsified document is actually utilized to defraud
another, the crime of falsification has already been consummated, damage or intent to
cause damage not being an element of the crime of falsification of a public, official or
commercial document.[59] In other words, the crime of falsification was committed prior to the
consummation of the crime of estafa.[60] Actually utilizing the falsified public, official or
commercial document to defraud another is estafa.[61] The damage to another is caused by the
commission of estafa, not by the falsification of the document.[62]

Applying the above principles to this case, the allegations in the Information show that the
falsification of public document was consummated when Sato presented a ready-made SPA to
Manolita who signed the same as a statement of her intention in connection with her taxes.
While the falsification was consummated upon the execution of the SPA, the consummation of
the estafa occurred only when Sato later utilized the SPA. He did so particularly when he had
the properties sold and thereafter pocketed the proceeds of the sale. Damage or prejudice to
Manolita was caused not by the falsification of the SPA (as no damage was yet caused to the
property rights of Manolita at the time she was made to sign the document) but by the
subsequent use of the said document. That is why the falsification of the public document was
used to facilitate and ensure (that is, as a necessary means for) the commission of the estafa.

The situation would have been different if Sato, using the same inducement, had made Manolita
sign a deed of sale of the properties either in his favor or in favor of third parties. In that case,
the damage would have been caused by, and at exactly the same time as, the execution of the
document, not prior thereto. Therefore, the crime committed would only have been the simple
crime of estafa.[63] On the other hand, absent any inducement (such as if Manolita herself had
been the one who asked that a document pertaining to her taxes be prepared for her signature,
but what was presented to her for her signature was an SPA), the crime would have only been
the simple crime of falsification.[64]

WHEREFORE, the petition is hereby GRANTED. The decision dated August 9, 2007 and the
resolution dated January 23, 2008 of the Court of Appeals in CA-G.R. S.P. No. 95260
are REVERSED and SET ASIDE. The case is remanded to the trial court which is directed to try
the accused with dispatch for the complex crime of estafa through falsification of public
documents.

SO ORDERED.

G.R. No. L-69668 October 2, 1986

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
HUMBERTO TEMPONGKO, JR., defendant-appellant.

The Solicitor General for plaintiff-appellee.

Adriano Pagarigan for defendant-appellant.

CRUZ, J.:p

The appellant is before us to challenge his conviction of the crime of rape. He claims it was not
he who erred but the trial court. The usual plea is made: that there was a misappropriation of
the evidence, resulting in the sentence of reclusion perpetua that he now faces. He prays for a
reversal.

At the time of the commission of the alleged offense, the complainant, Lolita Dacoycoy, was an
18-year old senior student at the Manuel L. Quezon High School and undergoing citizen army
training (CAT) under the command of the appellant. 1 The appellant was 43 years old, married,
with five children, and commandant of the said course, besides being the owner of a tailoring
shop. 2

These are the facts as the trial court saw them.

On November 9, 1981, the complainant and her friend, Rosalita Quinto, went to the appellant's
tailoring shop in accordance with the appointment made by them the day before. This was about
7 o'clock in the evening. Their purpose was to solicit a contribution for their high school annual.
Upon arrival one hour later, the appellant offered them beer, which they drank. Lolita became
dizzy and the appellant suggested that the two girls stay for the night. The appellant then left, at
about 11:30 o'clock. Lolita slept on the sofa while Rosalita slept on the floor about two arms
length from her. It was at dawn when Lolita felt the weight of a person on her whom she
immediately recognized as the appellant. She pleaded, "Huwag mong gawin sa akin iyan, sir."
The appellant kissed her and bit her lower lip. Lolita boxed him in the back and he boxed her in
the stomach, rendering her unconscious. She did not scream or call for help because it all
happened so fast. When she woke up, the deed was done and she was bleeding. The appellant
was seated on the sofa totally naked. She moaned presumably in anguish and pain, and
Rosalita woke up. Rosalita embraced and consoled Lolita. She turned on the light and
upbraided the appellant who at that time was already putting on his trousers. The appellant
soon left without saying a word, looking very nervous. As Lolita's jogging pants were bleed,
Rosalita left to get her some clothes. Lolita stayed until past noon and when Rosalita did not
return decided to leave the office. She proceeded to the house of another friend, a certain
Cecile, where she stayed for five days until she was fetched by her stepfather, Delfin Dalisay.
This was Lolita Dacoycoy's testimony. 3

Continuing the story, Delfin Dalisay related that on November 10, Rosalita and her mother
informed him of Lolita's rape. He blamed Rosalita for Lolita's misfortune, and Rosalita and her
mother left in a huff. Five days later, Cecile's sister informed them at their market stall that Lolita
was in their house. He fetched Lolita from there and later, upon advice of the lawyer to whom
they had earlier been referred by a friend, he and her mother took Lolita to the National Bureau
of Investigation, where she underwent a medical examination. 4 Part of this narration was
contributed by Clarita Dacoycoy, Lolita's mother, who also testified on the civil damages
suffered by the complainant. 5

According to the medical report as explained by Dr. Orlando Salvador of the NBI in layman's
terms, the complainant was deflowered on or about the date of the alleged rape. This witness
also testified that the claimed blow inflicted on the complainant's stomach would not necessarily
leave any external sign or mark. 6

Testifying for himself, the appellant denied the charge, saying he was at home with his family
when the rape was supposedly committed. He did not deny that he offered the two girls beer
and allowed them to sleep in his office in the night of November 9, 1981. He declared, however,
that having left his office at about 11:30 p.m. of that date, he returned thereto at about 9 o'clock
in the morning of the following day and not earlier. In fact, he saw the complainant having
breakfast at that time. 7

The appellant presented two witnesses to corroborate his testimony, but it seems they did him
more harm than good. We shall go to that later.

The medical report suggests that the complainant was a virgin at the time of the supposed
intercourse, but it would seem that her conduct in the night of November 9, 1981, was hardly
maidenly or at least discreet. First, she went to the office of a man she did not know very well at
7 o'clock on a Sunday evening. Then she accepted beer instead of a soft drink, which would
have been the proper refreshment for her and her companion, considering their age and sex.
Not only that, instead of taking a few sips just to be polite, what she did was drink about three-
fourths of the glass, as a result of which she felt dizzy. Then, instead of going home with her
companion, she decided to stay and sleep in the strange office of this person who, to repeat,
was by her own narration not close to her.

There is no evidence that her friend Rosalita was also dizzy and could not have taken her home
that night. In fact, Lolita herself testified that Rosalita did not complain of being dizzy. 8 The
appellant's office on C.M. Recto was not far from the complainant's house on Vicente G. Cruz,
which could have been reached by one jeep ride. Alternatively, she had a telephone at her
house and could have called one of her relatives to fetch her if she and Rosalita could not leave
by themselves. 9 It is incredible that she did not even trouble to tell her parents of her
whereabouts. One might expect such thoughtless conduct of an experienced girl of loose
discipline but not of the virtuous and virginal girl the complainant was supposed to be.

The other parts of her testimony also raise some perplexing questions. By her own account, she
was raped on the sofa while her friend Rosalita was sleeping on the floor only two arms length
away and in the same room. 10 The implication is that the appellant was reckless not only of
resistance from Lolita but also of discovery by Rosalita. The complainant testified that he
immediately recognized the appellant although she had just awakened and that when she
recovered consciousness after having been boxed in the stomach, she had already been
ravished. Strangely, the appellant was then still seated on the sofa and apparently taking his
time about dressing. 11 She also said she was desperate for clothing because her jogging pants
were bloody. 12 Yet it did not occur to her to get other attire, which must have been available in
abundance in the place where she was then, which was a tailoring shop. In fact, the shop was a
contractor for the supplying of, precisely, CAT uniforms. 13
Instead of going straight home, which would have been the normal reaction of a young woman
subjected to her traumatic experience, what she did was stay with a friend, the mysterious
Cecile. 14 She stayed there for five days and did not communicate with her mother even once.
Neither did her friend Cecile. In fact, it was only on the fifth day that Cecile's sister saw fit to tell
the complainant's family where Lolita was notwithstanding Lolita's alleged condition at the time.
If, according to Delfin Dalisay, the complainant was "tulala" when he saw her, it would have
been the natural thing for Cecile to inform Lolita's family of her state of shock as soon as
possible.

One also wonders why Rosalita Quinto, the complainant's companion on the night of the alleged
rape, and who was supposed to be in the room when the complainant claimed she was
ravished, was not presented as a witness by the prosecution It is not often that the prosecution
has the good fortune of an actual eyewitness in cases like this, and yet neither the fiscal nor the
private prosecutor saw fit to ask Rosalita to corroborate the testimony of Lolita. Instead, they
presented only the parents of Lolita who testified on what happened after, and not before and
during, the alleged rape.

For its part, the defense was none-too-convincing either and, in the view of the trial court, fatally
flawed. The appellant relied on alibi, an inherently feeble excuse that cannot prevail as against
the positive Identification of the accused. Moreover, the appellant was living in Sisa, in
Sampaloc, only two kilometers or so from his office, 15 where the rape was allegedly
committed. It could have been reached from his house in a matter of minutes, as the trial court
observed, considering the light traffic at 5 o'clock in the morning or thereabouts.

The appellant's first witness, Remy Oriola, testified that Lolita and Rosalita slept in the
appellant's office in the morning of November 8, 1981, and that the appellant returned thereto
the following morning of November 9, 1981. 16 By contrast, the appellant's testimony was that
the two girls slept in his office on November 9, 1981, and that he returned thereto the following
morning of November 10, 1981. 17 And whereas the appellant testified that the complainant
came to his office with a paper bag containing clothes, 18 the witness said Lolita was carrying
only a handbag. 19

The testimony of the other defense witness, Rolando Hermilo, was not only practically useless
but in fact prejudicial to the appellant. In the first place, he testified only up to the time he left the
appellant's office at about 11 o'clock in the night of November 9, 1981, and not on what
happened later to the girls who were left behind. 20 But what makes his testimony suspect was
his admission that he learned of the charge against the appellant, and was asked to testify for
him, only on the date itself of the hearing, in the very morning when he was presented as
witness, 21 and this was more than two years after the alleged rape. On top of this, he was by
his own admission reading the transcript of the appellant's testimony before he was actually
called to the witness stand. 22

The defendant argues that Lolita should have shouted for help but did not; that he would not
have attempted the rape in such a cramped place and with another person in the very room
where the crime was supposedly committed; and that there were no signs of the alleged
stomach blow on the complainant's stomach.

On the other hand, he could not explain why he offered the two girls beer when soft drinks
would have been more appropriate, and also why he allowed them to sleep in his office when
they were just trainees under his command and had no special ties with him. His claim was that
they had left home because Lolita had been scolded by her mother was belied by his own
testimony that he heard Lolita calling her mother on the telephone to say she was sleeping with
a friend. 23

It is unfortunate that the trial court did little to analyze the evidence of the parties and virtually
limited itself to the defense of alibi, which it declared to be untenable. There should have been a
more careful analysis of the other evidence to get to the truth of this unfortunate mess where
there is more than meets the eye. This is not a pat case, so to speak. There are many
unanswered questions. The conduct of both the complainant and the defendant, as narrated by
the requires not a little explaining. The trial judge should have probed deeper instead of simply
relying on the question of alibi, which is only part of the intriguing mosaic.

The basic principle in every criminal prosecution is that accusation is not synonymous with guilt.
The accused is presumed innocent until the contrary is proved by the prosecution. If the
prosecution fails, it fails utterly, even if the defense is weak or, indeed, even if there is no
defense at all. The defendant faces the full panoply of state authority with all "The People of the
Philippines" arrayed against him. In a manner of speaking, he goes to bat with all the bases
loaded. The odds are heavily against him. It is important, therefore, to equalize the positions of
the prosecution and the defense by presuming the innocence of the accused until the state is
able to refute the presumption by proof of guilt beyond reasonable doubt.

The appellant does not deny that he asked the two girls to see him at his office in the evening of
November 9, 1981; that he there offered them beer, which they drank; and that he permitted
them to sleep there that night.

The proper thing to do was to receive these girls at his office at the MLQ where he was working
as commandant of the CAT, and during school hours. Soft drinks would have been a more
appropriate refreshment for the young ladies, especially since such beverages were easily
available. And if it is true, as he says, that the complainant asked to sleep in his office because
she had been scolded by her mother, the appellant, exercising as he did some moral influence
over her as her commandant, should have counseled her to go home. Failing that, he should
have at least caged up the complainant's mother to tell her that Lolita was in his office.

But all these improprieties and omissions come under the heading of indiscretions and not
crimes. Serving beer instead of soft drinks and snowing the use of one's office for sleeping
purposes are not indictable offenses. Moral irresponsibility and thoughtlessness are also not
prohibited under our criminal laws. More importantly, all these indiscretion do not necessarily
lead to the conclusion that the appellant raped the complainant in the morning of November 10,
1981, in his office. The connection is too far-fetched.

The only fact conclusively established by the prosecution is that the complainant was
deflowered on or about the time of the alleged rape, but that is all. The rest of its case is based
on the improbable testimony of the complainant, whose conduct, even before the alleged rape,
was hardly befitting a proper young lady, to say the least.

The almost indifferent reaction of her family is implausible too, if we go by the recorded
testimony. After being informed of Lolita's rape, they did not immediately look for her; and when
they did, their efforts were hardly energetic. The mother testified that they later searched for her
but did not elaborate beyond saying that they asked her friends. They did not inquire from her
classmates in MLQ They did not talk to the alleged rapist, whom Rosalita had Identified. In fact,
when she and her mother informed Delfin Dalisay that Lolita had been raped, he did not ask
where she was — a most natural and logical question to ask at that time. All he did, by his own
account, was blame Rosalita for the incident.

It was only five days later that they teamed of her whereabouts, and this because Cecile's sister
came to see them and informed them. As for Cecile, in whose house the complainant
supposedly stayed for five days, she was not even presented as witness to corroborate Lolita's
testimony. It is significant that although she and Rosalita Quinto played key roles as it were in
this case, they were strangely silent and absent at the trial.

The trouble with the appellant, according to the trial court, is that he could not prove his defense
of alibi. But then how could he? He said he was sleeping in his house with his family. At five
o'clock in the morning, where else could he have been? How could he have produced third
parties as witnesses to testify that he was fast asleep in his own house? His presence in his
own bedroom at that time was not incredible or even improbable but perfectly believable.

What does strain the imagination is the complainant's own implausible story: of a virgin who
visited a casual acquaintance of the opposite sex in his own office on a Sunday evening;
accepted and drank beer with him; asked to sleep in his office; was awakened by the weight of
a person on top of her whom she immediately recognized notwithstanding that her eyes were
not yet accustomed to the dark; suffered a blow in her stomach and recovered consciousness to
discover she had been raped by the appellant who was still seated on the sofa totally naked;
could not leave because her jogging pants were bloodied notwithstanding that she was in a
tailoring shop where clothes were available in abundance; finally went to a friend's house
instead of straight to her mother from whom she normally would have sought solace. Most
significantly, the alleged rape was committed within two arms length of her companion, Rosalita
Quinto, who was sleeping with her in the same room, and could have awakened any time and in
fact did so, according to Lolita, when she moaned after her ravishment.

The theory of the prosecution has too many loose ends that it has failed to tie up to the
satisfaction of this Court. The guilt of the appellant has not been established beyond doubt and
so cannot be affirmed in this appellant The defense is weak, to be sure, but for all the
persuasive arguments of the Solicitor General and the private prosecutor, this Court remains
unconvinced that the appellant raped the complainant. The appellant may have been lying, and
there is evidence of this, but we are not prepared to accept, to the point of moral certainty, that
the complainant was telling the truth. The ambiguous evidence of the prosecution cannot justify
our condemning the appellant to prison for the rest of his life where there are whispers of doubt
that he is guilty.

WHEREFORE, the decision' of the lower court is REVERSED and the appellant is
ACQUITTED, without any pronouncement as to costs. It is so ordered.

G.R. No. 180016               April 29, 2014

LITO CORPUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of Court,
dated November 5, 2007, of petitioner Lito Corpuz (petitioner), seeking to reverse and set aside
the Decision1 dated March 22, 2007 and Resolution2 dated September 5, 2007 of the Court of
Appeals (CA), which affirmed with modification the Decision3 dated July 30, 2004 of the
Regional Trial Court (RTC), Branch 46, San Fernando City, finding the petitioner guilty beyond
reasonable doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of
the Revised Penal Code.

The antecedent facts follow.

Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale Casino in
Olongapo City sometime in 1990. Private complainant was then engaged in the business of
lending money to casino players and, upon hearing that the former had some pieces of jewelry
for sale, petitioner approached him on May 2, 1991 at the same casino and offered to sell the
said pieces of jewelry on commission basis. Private complainant agreed, and as a
consequence, he turned over to petitioner the following items: an 18k diamond ring for men; a
woman's bracelet; one (1) men's necklace and another men's bracelet, with an aggregate value
of ₱98,000.00, as evidenced by a receipt of even date. They both agreed that petitioner shall
remit the proceeds of the sale, and/or, if unsold, to return the same items, within a period of 60
days. The period expired without petitioner remitting the proceeds of the sale or returning the
pieces of jewelry. When private complainant was able to meet petitioner, the latter promised the
former that he will pay the value of the said items entrusted to him, but to no avail.

Thus, an Information was filed against petitioner for the crime of estafa, which reads as follows:

That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, after having received from
one Danilo Tangcoy, one (1) men's diamond ring, 18k, worth ₱45,000.00; one (1) three-baht
men's bracelet, 22k, worth ₱25,000.00; one (1) two-baht ladies' bracelet, 22k, worth
₱12,000.00, or in the total amount of Ninety-Eight Thousand Pesos (₱98,000.00), Philippine
currency, under expressed obligation on the part of said accused to remit the proceeds of the
sale of the said items or to return the same, if not sold, said accused, once in possession of the
said items, with intent to defraud, and with unfaithfulness and abuse of confidence, and far from
complying with his aforestated obligation, did then and there wilfully, unlawfully and feloniously
misappropriate, misapply and convert to his own personal use and benefit the aforesaid
jewelries (sic) or the proceeds of the sale thereof, and despite repeated demands, the accused
failed and refused to return the said items or to remit the amount of Ninety- Eight Thousand
Pesos (₱98,000.00), Philippine currency, to the damage and prejudice of said Danilo Tangcoy
in the aforementioned amount.

CONTRARY TO LAW.
On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of not guilty.
Thereafter, trial on the merits ensued.

The prosecution, to prove the above-stated facts, presented the lone testimony of Danilo
Tangcoy. On the other hand, the defense presented the lone testimony of petitioner, which can
be summarized, as follows:

Petitioner and private complainant were collecting agents of Antonio Balajadia, who is engaged
in the financing business of extending loans to Base employees. For every collection made,
they earn a commission. Petitioner denied having transacted any business with private
complainant.

However, he admitted obtaining a loan from Balajadia sometime in 1989 for which he was made
to sign a blank receipt. He claimed that the same receipt was then dated May 2, 1991 and used
as evidence against him for the supposed agreement to sell the subject pieces of jewelry, which
he did not even see.

After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged in the
Information. The dispositive portion of the decision states:

WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of the felony
of Estafa under Article 315, paragraph one (1), subparagraph (b) of the Revised Penal Code;

there being no offsetting generic aggravating nor ordinary mitigating circumstance/s to vary the
penalty imposable;

accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of liberty
consisting of an imprisonment under the Indeterminate Sentence Law of FOUR (4) YEARS AND
TWO (2) MONTHS of Prision Correccional in its medium period AS MINIMUM, to FOURTEEN
(14) YEARS AND EIGHT (8) MONTHS of Reclusion Temporal in its minimum period AS
MAXIMUM; to indemnify private complainant Danilo Tangcoy the amount of ₱98,000.00 as
actual damages, and to pay the costs of suit.

SO ORDERED.

The case was elevated to the CA, however, the latter denied the appeal of petitioner and
affirmed the decision of the RTC, thus:

WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30, 2004 of
the RTC of San Fernando City (P), Branch 46, is hereby AFFIRMED with MODIFICATION on
the imposable prison term, such that accused-appellant shall suffer the indeterminate penalty of
4 years and 2 months of prision correccional, as minimum, to 8 years of prision mayor, as
maximum, plus 1 year for each additional ₱10,000.00, or a total of 7 years. The rest of the
decision stands.

SO ORDERED.

Petitioner, after the CA denied his motion for reconsideration, filed with this Court the present
petition stating the following grounds:
A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE ADMISSION AND
APPRECIATION BY THE LOWER COURT OF PROSECUTION EVIDENCE, INCLUDING ITS
EXHIBITS, WHICH ARE MERE MACHINE COPIES, AS THIS VIOLATES THE BEST
EVIDENCE RULE;

B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S

FINDING THAT THE CRIMINAL INFORMATION FOR ESTAFA WAS NOT FATALLY
DEFECTIVE ALTHOUGH THE SAME DID NOT CHARGE THE OFFENSE UNDER ARTICLE
315 (1) (B) OF THE REVISED PENAL CODE IN THAT -

1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE

SUBJECT [PIECES OF] JEWELRY SHOULD BE RETURNED, IF UNSOLD, OR
THE MONEY TO BE REMITTED, IF SOLD;

2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE

INFORMATION AS OF 05 JULY 1991 WAS MATERIALLY DIFFERENT FROM
THE ONE TESTIFIED TO BY THE PRIVATE COMPLAINANT WHICH WAS 02
MAY 1991;

C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S

FINDING THAT DEMAND TO RETURN THE SUBJECT [PIECES OF] JEWELRY, IF UNSOLD,
OR REMIT THE PROCEEDS, IF SOLD – AN ELEMENT OF THE OFFENSE – WAS PROVED;

D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S

FINDING THAT THE PROSECUTION'S CASE WAS PROVEN BEYOND REASONABLE
DOUBT ALTHOUGH -

1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS OF THE

INCIDENT;

2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE

STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH HUMAN
EXPERIENCE;

3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED TO

THIS CASE;

4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE STATE.

In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated the
following counter-arguments:

The exhibits were properly admitted inasmuch as petitioner failed to object to their admissibility.

The information was not defective inasmuch as it sufficiently established the designation of the
offense and the acts complained of.

The prosecution sufficiently established all the elements of the crime charged.
This Court finds the present petition devoid of any merit.

The factual findings of the appellate court generally are conclusive, and carry even more weight
when said court affirms the findings of the trial court, absent any showing that the findings are
totally devoid of support in the records, or that they are so glaringly erroneous as to constitute
grave abuse of discretion.4 Petitioner is of the opinion that the CA erred in affirming the factual
findings of the trial court. He now comes to this Court raising both procedural and substantive
issues.

According to petitioner, the CA erred in affirming the ruling of the trial court, admitting in
evidence a receipt dated May 2, 1991 marked as Exhibit "A" and its submarkings, although the
same was merely a photocopy, thus, violating the best evidence rule. However, the records
show that petitioner never objected to the admissibility of the said evidence at the time it was
identified, marked and testified upon in court by private complainant. The CA also correctly
pointed out that petitioner also failed to raise an objection in his Comment to the prosecution's
formal offer of evidence and even admitted having signed the said receipt. The established
doctrine is that when a party failed to interpose a timely objection to evidence at the time they
were offered in evidence, such objection shall be considered as waived.5

Another procedural issue raised is, as claimed by petitioner, the formally defective Information
filed against him. He contends that the Information does not contain the period when the pieces
of jewelry were supposed to be returned and that the date when the crime occurred was
different from the one testified to by private complainant. This argument is untenable. The CA
did not err in finding that the Information was substantially complete and in reiterating that
objections as to the matters of form and substance in the Information cannot be made for the
first time on appeal. It is true that the gravamen of the crime of estafa under Article 315,
paragraph 1, subparagraph (b) of the RPC is the appropriation or conversion of money or
property received to the prejudice of the owner6 and that the time of occurrence is not a material
ingredient of the crime, hence, the exclusion of the period and the wrong date of the occurrence
of the crime, as reflected in the Information, do not make the latter fatally defective. The CA
ruled:

x x x An information is legally viable as long as it distinctly states the statutory designation of the
offense and the acts or omissions constitutive thereof. Then Section 6, Rule 110 of the Rules of
Court provides that a complaint or information is sufficient if it states the name of the accused;

the designation of the offense by the statute; the acts or omissions complained of as constituting
the offense; the name of the offended party; the approximate time of the commission of the
offense, and the place wherein the offense was committed. In the case at bar, a reading of the
subject Information shows compliance with the foregoing rule. That the time of the commission
of the offense was stated as " on or about the fifth (5th) day of July, 1991" is not likewise fatal to
the prosecution's cause considering that Section 11 of the same Rule requires a statement of
the precise time only when the same is a material ingredient of the offense. The gravamen of
the crime of estafa under Article 315, paragraph 1 (b) of the Revised Penal Code (RPC) is the
appropriation or conversion of money or property received to the prejudice of the offender.
Thus, aside from the fact that the date of the commission thereof is not an essential element of
the crime herein charged, the failure of the prosecution to specify the exact date does not
render the Information ipso facto defective. Moreover, the said date is also near the due date
within which accused-appellant should have delivered the proceeds or returned the said [pieces
of jewelry] as testified upon by Tangkoy, hence, there was sufficient compliance with the rules.
Accused-appellant, therefore, cannot now be allowed to claim that he was not properly apprised
of the charges proferred against him.7

It must be remembered that petitioner was convicted of the crime of Estafa under Article 315,
paragraph 1 (b) of the RPC, which reads:

ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means
mentioned hereinbelow.

1. With unfaithfulness or abuse of confidence, namely:

xxxx

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other
personal property received by the offender in trust or on commission, or for administration, or
under any other obligation involving the duty to make delivery of or to return the same, even
though such obligation be totally or partially guaranteed by a bond; or by denying having
received such money, goods, or other property; x x x

The elements of estafa with abuse of confidence are as follows: (a) that money, goods or other
personal property is received by the offender in trust, or on commission, or for administration, or
under any other obligation involving the duty to make delivery of, or to return the same; (b) that
there be misappropriation or conversion of such money or property by the offender or denial on
his part of such receipt; (c) that such misappropriation or conversion or denial is to the prejudice
of another; and (d) that there is a demand made by the offended party on the offender.8

Petitioner argues that the last element, which is, that there is a demand by the offended party on
the offender, was not proved. This Court disagrees. In his testimony, private complainant
narrated how he was able to locate petitioner after almost two (2) months from the time he gave
the pieces of jewelry and asked petitioner about the same items with the latter promising to pay
them. Thus:

PROS. MARTINEZ

q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could have been
finished on 5 July 1991, the question is what happens (sic) when the deadline came?

a I went looking for him, sir.

q For whom?

a Lito Corpuz, sir.

q Were you able to look (sic) for him?

a I looked for him for a week, sir.

q Did you know his residence?

a Yes, sir.

q Did you go there?

a Yes, sir.

q Did you find him?

a No, sir.

q Were you able to talk to him since 5 July 1991?

a I talked to him, sir.

q How many times?

a Two times, sir.

q What did you talk (sic) to him?

a About the items I gave to (sic) him, sir.

q Referring to Exhibit A-2?

a Yes, sir, and according to him he will take his obligation and I asked him where the items are
and he promised me that he will pay these amount, sir.

q Up to this time that you were here, were you able to collect from him partially or full?

a No, sir.9

No specific type of proof is required to show that there was demand.10 Demand need not even
be formal; it may be verbal.11 The specific word "demand" need not even be used to show that it
has indeed been made upon the person charged, since even a mere query as to the
whereabouts of the money [in this case, property], would be tantamount to a demand.12 As
expounded in Asejo v. People:13

With regard to the necessity of demand, we agree with the CA that demand under this kind of
estafa need not be formal or written. The appellate court observed that the law is silent with
regard to the form of demand in estafa under Art. 315 1(b), thus:

When the law does not qualify, We should not qualify. Should a written demand be necessary,
the law would have stated so. Otherwise, the word "demand" should be interpreted in its general
meaning as to include both written and oral demand. Thus, the failure of the prosecution to
present a written demand as evidence is not fatal.

In Tubb v. People, where the complainant merely verbally inquired about the money entrusted
to the accused, we held that the query was tantamount to a demand, thus:
x x x [T]he law does not require a demand as a condition precedent to the existence of the
crime of embezzlement. It so happens only that failure to account, upon demand for funds or
property held in trust, is circumstantial evidence of misappropriation. The same way, however,
be established by other proof, such as that introduced in the case at bar.14

In view of the foregoing and based on the records, the prosecution was able to prove the
existence of all the elements of the crime. Private complainant gave petitioner the pieces of
jewelry in trust, or on commission basis, as shown in the receipt dated May 2, 1991 with an
obligation to sell or return the same within sixty (60) days, if unsold. There was misappropriation
when petitioner failed to remit the proceeds of those pieces of jewelry sold, or if no sale took
place, failed to return the same pieces of jewelry within or after the agreed period despite
demand from the private complainant, to the prejudice of the latter.

Anent the credibility of the prosecution's sole witness, which is questioned by petitioner, the
same is unmeritorious. Settled is the rule that in assessing the credibility of witnesses, this Court
gives great respect to the evaluation of the trial court for it had the unique opportunity to observe
the demeanor of witnesses and their deportment on the witness stand, an opportunity denied
the appellate courts, which merely rely on the records of the case.15 The assessment by the trial
court is even conclusive and binding if not tainted with arbitrariness or oversight of some fact or
circumstance of weight and influence, especially when such finding is affirmed by the
CA.16 Truth is established not by the number of witnesses, but by the quality of their testimonies,
for in determining the value and credibility of evidence, the witnesses are to be weighed not
numbered.17

As regards the penalty, while this Court's Third Division was deliberating on this case, the
question of the continued validity of imposing on persons convicted of crimes involving property
came up. The legislature apparently pegged these penalties to the value of the money and
property in 1930 when it enacted the Revised Penal Code. Since the members of the division
reached no unanimity on this question and since the issues are of first impression, they decided
to refer the case to the Court en banc for consideration and resolution. Thus, several amici
curiae were invited at the behest of the Court to give their academic opinions on the matter.
Among those that graciously complied were Dean Jose Manuel Diokno, Dean Sedfrey M.
Candelaria, Professor Alfredo F. Tadiar, the Senate President, and the Speaker of the House of
Representatives. The parties were later heard on oral arguments before the Court en banc, with
Atty. Mario L. Bautista appearing as counsel de oficio of the petitioner.

After a thorough consideration of the arguments presented on the matter, this Court finds the
following:

There seems to be a perceived injustice brought about by the range of penalties that the courts
continue to impose on crimes against property committed today, based on the amount of
damage measured by the value of money eighty years ago in 1932. However, this Court cannot
modify the said range of penalties because that would constitute judicial legislation. What the
legislature's perceived failure in amending the penalties provided for in the said crimes cannot
be remedied through this Court's decisions, as that would be encroaching upon the power of
another branch of the government. This, however, does not render the whole situation without
any remedy. It can be appropriately presumed that the framers of the Revised Penal Code
(RPC) had anticipated this matter by including Article 5, which reads:
ART. 5. Duty of the court in connection with acts which should be repressed but which are not
covered by the law, and in cases of excessive penalties. - Whenever a court has knowledge of
any act which it may deem proper to repress and which is not punishable by law, it shall render
the proper decision, and shall report to the Chief Executive, through the Department of Justice,
the reasons which induce the court to believe that said act should be made the subject of penal
legislation.

In the same way, the court shall submit to the Chief Executive, through the Department of
Justice, such statement as may be deemed proper, without suspending the execution of the
sentence, when a strict enforcement of the provisions of this Code would result in the imposition
of a clearly excessive penalty, taking into consideration the degree of malice and the injury
caused by the offense.18

The first paragraph of the above provision clearly states that for acts bourne out of a case which
is not punishable by law and the court finds it proper to repress, the remedy is to render the
proper decision and thereafter, report to the Chief Executive, through the Department of Justice,
the reasons why the same act should be the subject of penal legislation. The premise here is
that a deplorable act is present but is not the subject of any penal legislation, thus, the court is
tasked to inform the Chief Executive of the need to make that act punishable by law through
legislation. The second paragraph is similar to the first except for the situation wherein the act is
already punishable by law but the corresponding penalty is deemed by the court as excessive.
The remedy therefore, as in the first paragraph is not to suspend the execution of the sentence
but to submit to the Chief Executive the reasons why the court considers the said penalty to be
non-commensurate with the act committed. Again, the court is tasked to inform the Chief
Executive, this time, of the need for a legislation to provide the proper penalty.

In his book, Commentaries on the Revised Penal Code,19 Guillermo B. Guevara opined that in
Article 5, the duty of the court is merely to report to the Chief Executive, with a recommendation
for an amendment or modification of the legal provisions which it believes to be harsh. Thus:

This provision is based under the legal maxim "nullum crimen, nulla poena sige lege," that is,
that there can exist no punishable act except those previously and specifically provided for by
penal statute.

No matter how reprehensible an act is, if the law-making body does not deem it necessary to
prohibit its perpetration with penal sanction, the Court of justice will be entirely powerless to
punish such act.

Under the provisions of this article the Court cannot suspend the execution of a sentence on the
ground that the strict enforcement of the provisions of this Code would cause excessive or
harsh penalty. All that the Court could do in such eventuality is to report the matter to the Chief
Executive with a recommendation for an amendment or modification of the legal provisions
which it believes to be harsh.20

Anent the non-suspension of the execution of the sentence, retired Chief Justice Ramon C.
Aquino and retired Associate Justice Carolina C. Griño-Aquino, in their book, The Revised
Penal Code,21 echoed the above-cited commentary, thus:

The second paragraph of Art. 5 is an application of the humanitarian principle that justice must
be tempered with mercy. Generally, the courts have nothing to do with the wisdom or justness
of the penalties fixed by law. "Whether or not the penalties prescribed by law upon conviction of
violations of particular statutes are too severe or are not severe enough, are questions as to
which commentators on the law may fairly differ; but it is the duty of the courts to enforce the will
of the legislator in all cases unless it clearly appears that a given penalty falls within the
prohibited class of excessive fines or cruel and unusual punishment." A petition for clemency
should be addressed to the Chief Executive.22

There is an opinion that the penalties provided for in crimes against property be based on the
current inflation rate or at the ratio of ₱1.00 is equal to ₱100.00 . However, it would be
dangerous as this would result in uncertainties, as opposed to the definite imposition of the
penalties. It must be remembered that the economy fluctuates and if the proposed imposition of
the penalties in crimes against property be adopted, the penalties will not cease to change,
thus, making the RPC, a self-amending law. Had the framers of the RPC intended that to be so,
it should have provided the same, instead, it included the earlier cited Article 5 as a remedy. It is
also improper to presume why the present legislature has not made any moves to amend the
subject penalties in order to conform with the present times. For all we know, the legislature
intends to retain the same penalties in order to deter the further commission of those punishable
acts which have increased tremendously through the years. In fact, in recent moves of the
legislature, it is apparent that it aims to broaden the coverage of those who violate penal laws.
In the crime of Plunder, from its original minimum amount of ₱100,000,000.00 plundered, the
legislature lowered it to ₱50,000,000.00. In the same way, the legislature lowered the threshold
amount upon which the Anti-Money Laundering Act may apply, from ₱1,000,000.00 to
₱500,000.00.

It is also worth noting that in the crimes of Theft and Estafa, the present penalties do not seem
to be excessive compared to the proposed imposition of their corresponding penalties. In Theft,
the provisions state that:

Art. 309. Penalties. — Any person guilty of theft shall be punished by:

1. The penalty of prision mayor in its minimum and medium periods, if the value of the
thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos, but if the
value of the thing stolen exceeds the latter amount the penalty shall be the maximum
period of the one prescribed in this paragraph, and one year for each additional ten
thousand pesos, but the total of the penalty which may be imposed shall not exceed
twenty years. In such cases, and in connection with the accessory penalties which may
be imposed and for the purpose of the other provisions of this Code, the penalty shall be
termed prision mayor or reclusion temporal, as the case may be.

2. The penalty of prision correccional in its medium and maximum periods, if the value of
the thing stolen is more than 6,000 pesos but does not exceed 12,000 pesos.

3. The penalty of prision correccional in its minimum and medium periods, if the value of
the property stolen is more than 200 pesos but does not exceed 6,000 pesos.

4. Arresto mayor in its medium period to prision correccional in its minimum period, if the
value of the property stolen is over 50 pesos but does not exceed 200 pesos.

5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50
pesos.
 6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5
pesos.

7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the
circumstances enumerated in paragraph 3 of the next preceding article and the value of
the thing stolen does not exceed 5 pesos. If such value exceeds said amount, the
provision of any of the five preceding subdivisions shall be made applicable.

8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value
of the thing stolen is not over 5 pesos, and the offender shall have acted under the
impulse of hunger, poverty, or the difficulty of earning a livelihood for the support of
himself or his family.

In a case wherein the value of the thing stolen is ₱6,000.00, the above-provision states that the
penalty is prision correccional in its minimum and medium periods (6 months and 1 day to 4
years and 2 months). Applying the proposal, if the value of the thing stolen is ₱6,000.00, the
penalty is imprisonment of arresto mayor in its medium period to prision correccional minimum
period (2 months and 1 day to 2 years and 4 months). It would seem that under the present law,
the penalty imposed is almost the same as the penalty proposed. In fact, after the application of
the Indeterminate Sentence Law under the existing law, the minimum penalty is still lowered by
one degree; hence, the minimum penalty is arresto mayor in its medium period to maximum
period (2 months and 1 day to 6 months), making the offender qualified for pardon or parole
after serving the said minimum period and may even apply for probation. Moreover, under the
proposal, the minimum penalty after applying the Indeterminate Sentence Law is arresto menor
in its maximum period to arresto mayor in its minimum period (21 days to 2 months) is not too
far from the minimum period under the existing law. Thus, it would seem that the present
penalty imposed under the law is not at all excessive. The same is also true in the crime of
Estafa.23

Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen in the
crime of Theft and the damage caused in the crime of Estafa, the gap between the minimum
and the maximum amounts, which is the basis of determining the proper penalty to be imposed,
would be too wide and the penalty imposable would no longer be commensurate to the act
committed and the value of the thing stolen or the damage caused:

I. Article 309, or the penalties for the crime of Theft, the value would be modified but the
penalties are not changed:

1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00 to ₱2,200,000.00, punished by

prision mayor minimum to prision mayor medium (6 years and 1 day to 10 years).

2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punished by

prision correccional medium and to prision correccional maximum (2 years, 4 months
and 1 day to 6 years).24

3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by prision

correccional minimum to prision correccional medium (6 months and 1 day to 4 years
and 2 months).
 4. ₱50.00 to ₱200.00 will become ₱5,000.00 to ₱20,000.00, punishable by arresto
mayor medium to prision correccional minimum (2 months and 1 day to 2 years and 4
months).

5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00, punishable by arresto mayor (1

month and 1 day to 6 months).

6. ₱5.00 will become ₱500.00, punishable by arresto mayor minimum to arresto mayor
medium.

x x x x.

II. Article 315, or the penalties for the crime of Estafa, the value would also be modified but the
penalties are not changed, as follows:

1st. ₱12,000.00 to ₱22,000.00, will become ₱1,200,000.00 to ₱2,200,000.00,

punishable by prision correccional maximum to prision mayor minimum (4 years, 2
months and 1 day to 8 years).25

2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punishable

by prision correccional minimum to prision correccional medium (6 months and 1 day to
4 years and 2 months).26

3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by

arresto mayor maximum to prision correccional minimum (4 months and 1 day to 2 years
and 4 months).

4th. ₱200.00 will become ₱20,000.00, punishable by arresto mayor maximum (4 months
and 1 day to 6 months).

An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici curiae, is that
the incremental penalty provided under Article 315 of the RPC violates the Equal Protection
Clause.

The equal protection clause requires equality among equals, which is determined according to a
valid classification. The test developed by jurisprudence here and yonder is that of
reasonableness,27 which has four requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class.28

According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on substantial
distinctions as ₱10,000.00 may have been substantial in the past, but it is not so today, which
violates the first requisite; the IPR was devised so that those who commit estafa involving higher
amounts would receive heavier penalties; however, this is no longer achieved, because a
person who steals ₱142,000.00 would receive the same penalty as someone who steals
hundreds of millions, which violates the second requisite; and, the IPR violates requisite no. 3,
considering that the IPR is limited to existing conditions at the time the law was promulgated,
conditions that no longer exist today.

Assuming that the Court submits to the argument of Dean Diokno and declares the incremental
penalty in Article 315 unconstitutional for violating the equal protection clause, what then is the
penalty that should be applied in case the amount of the thing subject matter of the crime
exceeds ₱22,000.00? It seems that the proposition poses more questions than answers, which
leads us even more to conclude that the appropriate remedy is to refer these matters to
Congress for them to exercise their inherent power to legislate laws.

Even Dean Diokno was of the opinion that if the Court declares the IPR unconstitutional, the
remedy is to go to Congress. Thus:

xxxx

JUSTICE PERALTA:

Now, your position is to declare that the incremental penalty should be struck down as
unconstitutional because it is absurd.

DEAN DIOKNO:

Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment.

JUSTICE PERALTA:

Then what will be the penalty that we are going to impose if the amount is more than Twenty-
Two Thousand (₱22,000.00) Pesos.

DEAN DIOKNO:

Well, that would be for Congress to ... if this Court will declare the incremental penalty rule
unconstitutional, then that would ... the void should be filled by Congress.

JUSTICE PERALTA:

But in your presentation, you were fixing the amount at One Hundred Thousand (₱100,000.00)
Pesos ...

DEAN DIOKNO:

Well, my presen ... (interrupted)

JUSTICE PERALTA:
For every One Hundred Thousand (₱100,000.00) Pesos in excess of Twenty-Two Thousand
(₱22,000.00) Pesos you were suggesting an additional penalty of one (1) year, did I get you
right?

DEAN DIOKNO:

Yes, Your Honor, that is, if the court will take the route of statutory interpretation.

JUSTICE PERALTA:

Ah ...

DEAN DIOKNO:

If the Court will say that they can go beyond the literal wording of the law...

JUSTICE PERALTA:

But if we de ... (interrupted)

DEAN DIOKNO:

....then....

JUSTICE PERALTA:

Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court cannot fix the
amount ...

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

... as the equivalent of one, as an incremental penalty in excess of Twenty-Two Thousand

(₱22,000.00) Pesos.

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

The Court cannot do that.

DEAN DIOKNO:
Could not be.

JUSTICE PERALTA:

The only remedy is to go to Congress...

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

... and determine the value or the amount.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

That will be equivalent to the incremental penalty of one (1) year in excess of Twenty-Two
Thousand (₱22,000.00) Pesos.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

The amount in excess of Twenty-Two Thousand (₱22,000.00) Pesos.

Thank you, Dean.

DEAN DIOKNO:

Thank you.

x x x x29

Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes cruel and
unusual punishment. Citing Solem v. Helm,30 Dean Diokno avers that the United States Federal
Supreme Court has expanded the application of a similar Constitutional provision prohibiting
cruel and unusual punishment, to the duration of the penalty, and not just its form. The court
therein ruled that three things must be done to decide whether a sentence is proportional to a
specific crime, viz.; (1) Compare the nature and gravity of the offense, and the harshness of the
penalty; (2) Compare the sentences imposed on other criminals in the same jurisdiction, i.e.,
whether more serious crimes are subject to the same penalty or to less serious penalties; and
(3) Compare the sentences imposed for commission of the same crime in other jurisdictions.
However, the case of Solem v. Helm cannot be applied in the present case, because in Solem
what respondent therein deemed cruel was the penalty imposed by the state court of South
Dakota after it took into account the latter’s recidivist statute and not the original penalty for
uttering a "no account" check. Normally, the maximum punishment for the crime would have
been five years imprisonment and a $5,000.00 fine. Nonetheless, respondent was sentenced to
life imprisonment without the possibility of parole under South Dakota’s recidivist statute
because of his six prior felony convictions. Surely, the factual antecedents of Solem are different
from the present controversy.

With respect to the crime of Qualified Theft, however, it is true that the imposable penalty for the
offense is high. Nevertheless, the rationale for the imposition of a higher penalty against a
domestic servant is the fact that in the commission of the crime, the helper will essentially
gravely abuse the trust and confidence reposed upon her by her employer. After accepting and
allowing the helper to be a member of the household, thus entrusting upon such person the
protection and safekeeping of the employer’s loved ones and properties, a subsequent betrayal
of that trust is so repulsive as to warrant the necessity of imposing a higher penalty to deter the
commission of such wrongful acts.

There are other crimes where the penalty of fine and/or imprisonment are dependent on the
subject matter of the crime and which, by adopting the proposal, may create serious
implications. For example, in the crime of Malversation, the penalty imposed depends on the
amount of the money malversed by the public official, thus:

Art. 217. Malversation of public funds or property; Presumption of malversation. — Any public
officer who, by reason of the duties of his office, is accountable for public funds or property,
shall appropriate the same or shall take or misappropriate or shall consent, through
abandonment or negligence, shall permit any other person to take such public funds, or
property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation
of such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount
involved in the misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount
involved is more than two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its
minimum period, if the amount involved is more than six thousand pesos but is less than
twelve thousand pesos.

4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount
involved is more than twelve thousand pesos but is less than twenty-two thousand
pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its
maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value
of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or property with which
he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence
that he has put such missing funds or property to personal use.

The above-provisions contemplate a situation wherein the Government loses money due to the
unlawful acts of the offender. Thus, following the proposal, if the amount malversed is ₱200.00
(under the existing law), the amount now becomes ₱20,000.00 and the penalty is prision
correccional in its medium and maximum periods (2 years 4 months and 1 day to 6 years). The
penalty may not be commensurate to the act of embezzlement of ₱20,000.00 compared to the
acts committed by public officials punishable by a special law, i.e., Republic Act No. 3019 or the
Anti-Graft and Corrupt Practices Act, specifically Section 3,31 wherein the injury caused to the
government is not generally defined by any monetary amount, the penalty (6 years and 1 month
to 15 years)32 under the Anti-Graft Law will now become higher. This should not be the case,
because in the crime of malversation, the public official takes advantage of his public position to
embezzle the fund or property of the government entrusted to him.

The said inequity is also apparent in the crime of Robbery with force upon things (inhabited or
uninhabited) where the value of the thing unlawfully taken and the act of unlawful entry are the
bases of the penalty imposable, and also, in Malicious Mischief, where the penalty of
imprisonment or fine is dependent on the cost of the damage caused.

In Robbery with force upon things (inhabited or uninhabited), if we increase the value of the
thing unlawfully taken, as proposed in the ponencia, the sole basis of the penalty will now be the
value of the thing unlawfully taken and no longer the element of force employed in entering the
premises. It may likewise cause an inequity between the crime of Qualified Trespass to Dwelling
under Article 280, and this kind of robbery because the former is punishable by prision
correccional in its medium and maximum periods (2 years, 4 months and 1 day to 6 years) and
a fine not exceeding ₱1,000.00 (₱100,000.00 now if the ratio is 1:100) where entrance to the
premises is with violence or intimidation, which is the main justification of the penalty. Whereas
in the crime of Robbery with force upon things, it is punished with a penalty of prision mayor (6
years and 1 day to 12 years) if the intruder is unarmed without the penalty of Fine despite the
fact that it is not merely the illegal entry that is the basis of the penalty but likewise the unlawful
taking.

Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty that can be
imposed is arresto mayor in its medium and maximum periods (2 months and 1 day to 6
months) if the value of the damage caused exceeds ₱1,000.00, but under the proposal, the
value of the damage will now become ₱100,000.00 (1:100), and still punishable by arresto
mayor (1 month and 1 day to 6 months). And, if the value of the damaged property does not
exceed ₱200.00, the penalty is arresto menor or a fine of not less than the value of the damage
caused and not more than ₱200.00, if the amount involved does not exceed ₱200.00 or cannot
be estimated. Under the proposal, ₱200.00 will now become ₱20,000.00, which simply means
that the fine of ₱200.00 under the existing law will now become ₱20,000.00. The amount of Fine
under this situation will now become excessive and afflictive in nature despite the fact that the
offense is categorized as a light felony penalized with a light penalty under Article 26 of the
RPC.33 Unless we also amend Article 26 of the RPC, there will be grave implications on the
penalty of Fine, but changing the same through Court decision, either expressly or impliedly,
may not be legally and constitutionally feasible.
There are other crimes against property and swindling in the RPC that may also be affected by
the proposal, such as those that impose imprisonment and/or Fine as a penalty based on the
value of the damage caused, to wit: Article 311 (Theft of the property of the National Library and
National Museum), Article 312 (Occupation of real property or usurpation of real rights in
property), Article 313 (Altering boundaries or landmarks), Article 316 (Other forms of swindling),
Article 317 (Swindling a minor), Article 318 (Other deceits), Article 328 (Special cases of
malicious mischief) and Article 331 (Destroying or damaging statues, public monuments or
paintings). Other crimes that impose Fine as a penalty will also be affected, such as: Article 213
(Frauds against the public treasury and similar offenses), Article 215 (Prohibited Transactions),

Article 216 (Possession of prohibited interest by a public officer), Article 218 (Failure of
accountable officer to render accounts), Article 219 (Failure of a responsible public officer to
render accounts before leaving the country).

In addition, the proposal will not only affect crimes under the RPC. It will also affect crimes
which are punishable by special penal laws, such as Illegal Logging or Violation of Section 68 of
Presidential Decree No. 705, as amended.34 The law treats cutting, gathering, collecting and
possessing timber or other forest products without license as an offense as grave as and
equivalent to the felony of qualified theft.35 Under the law, the offender shall be punished with
the penalties imposed under Articles 309 and 31036 of the Revised Penal Code, which means
that the penalty imposable for the offense is, again, based on the value of the timber or forest
products involved in the offense. Now, if we accept the said proposal in the crime of Theft, will
this particular crime of Illegal Logging be amended also in so far as the penalty is concerned
because the penalty is dependent on Articles 309 and 310 of the RPC? The answer is in the
negative because the soundness of this particular law is not in question.

With the numerous crimes defined and penalized under the Revised Penal Code and Special
Laws, and other related provisions of these laws affected by the proposal, a thorough study is
needed to determine its effectivity and necessity. There may be some provisions of the law that
should be amended; nevertheless, this Court is in no position to conclude as to the intentions of
the framers of the Revised Penal Code by merely making a study of the applicability of the
penalties imposable in the present times. Such is not within the competence of the Court but of
the Legislature which is empowered to conduct public hearings on the matter, consult legal
luminaries and who, after due proceedings, can decide whether or not to amend or to revise the
questioned law or other laws, or even create a new legislation which will adopt to the times.

Admittedly, Congress is aware that there is an urgent need to amend the Revised Penal Code.
During the oral arguments, counsel for the Senate informed the Court that at present, fifty-six
(56) bills are now pending in the Senate seeking to amend the Revised Penal Code,37 each one
proposing much needed change and updates to archaic laws that were promulgated decades
ago when the political, socio-economic, and cultural settings were far different from today’s
conditions.

Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not
usurp legislative powers by judicial legislation and that in the course of such application or
construction, it should not make or supervise legislation, or under the guise of interpretation,
modify, revise, amend, distort, remodel, or rewrite the law, or give the law a construction which
is repugnant to its terms.38 The Court should apply the law in a manner that would give effect to
their letter and spirit, especially when the law is clear as to its intent and purpose. Succinctly
put, the Court should shy away from encroaching upon the primary function of a co-equal
branch of the Government; otherwise, this would lead to an inexcusable breach of the doctrine
of separation of powers by means of judicial legislation.

Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine; hence, it
can be increased by the Court when appropriate. Article 2206 of the Civil Code provides:

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least
three thousand pesos, even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased,
and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every
case be assessed and awarded by the court, unless the deceased on account of
permanent physical disability not caused by the defendant, had no earning capacity at
the time of his death;

(2) If the deceased was obliged to give support according to the provisions of Article
291, the recipient who is not an heir called to the decedent's inheritance by the law of
testate or intestate succession, may demand support from the person causing the death,
for a period not exceeding five years, the exact duration to be fixed by the court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased
may demand moral damages for mental anguish by reason of the death of the
deceased.

In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary
restitution or compensation to the victim for the damage or infraction that was done to the latter
by the accused, which in a sense only covers the civil aspect. Precisely, it is civil indemnity.
Thus, in a crime where a person dies, in addition to the penalty of imprisonment imposed to the
offender, the accused is also ordered to pay the victim a sum of money as restitution. Clearly,
this award of civil indemnity due to the death of the victim could not be contemplated as akin to
the value of a thing that is unlawfully taken which is the basis in the imposition of the proper
penalty in certain crimes. Thus, the reasoning in increasing the value of civil indemnity awarded
in some offense cannot be the same reasoning that would sustain the adoption of the suggested
ratio. Also, it is apparent from Article 2206 that the law only imposes a minimum amount for
awards of civil indemnity, which is ₱3,000.00. The law did not provide for a ceiling. Thus,
although the minimum amount for the award cannot be changed, increasing the amount
awarded as civil indemnity can be validly modified and increased when the present
circumstance warrants it. Corollarily, moral damages under Article 222039 of the Civil Code also
does not fix the amount of damages that can be awarded. It is discretionary upon the court,
depending on the mental anguish or the suffering of the private offended party. The amount of
moral damages can, in relation to civil indemnity, be adjusted so long as it does not exceed the
award of civil indemnity.

In addition, some may view the penalty provided by law for the offense committed as
tantamount to cruel punishment. However, all penalties are generally harsh, being punitive in
nature. Whether or not they are excessive or amount to cruel punishment is a matter that should
be left to lawmakers. It is the prerogative of the courts to apply the law, especially when they are
clear and not subject to any other interpretation than that which is plainly written.
Similar to the argument of Dean Diokno, one of Justice Antonio Carpio’s opinions is that the
incremental penalty provision should be declared unconstitutional and that the courts should
only impose the penalty corresponding to the amount of ₱22,000.00, regardless if the actual
amount involved exceeds ₱22,000.00. As suggested, however, from now until the law is
properly amended by Congress, all crimes of Estafa will no longer be punished by the
appropriate penalty. A conundrum in the regular course of criminal justice would occur when
every accused convicted of the crime of estafa will be meted penalties different from the proper
penalty that should be imposed. Such drastic twist in the application of the law has no legal
basis and directly runs counter to what the law provides.

It should be noted that the death penalty was reintroduced in the dispensation of criminal justice
by the Ramos Administration by virtue of Republic Act No. 765940 in December 1993. The said
law has been questioned before this Court. There is, arguably, no punishment more cruel than
that of death. Yet still, from the time the death penalty was re-imposed until its lifting in June
2006 by Republic Act No. 9346,41 the Court did not impede the imposition of the death penalty
on the ground that it is a "cruel punishment" within the purview of Section 19 (1),42 Article III of
the Constitution. Ultimately, it was through an act of Congress suspending the imposition of the
death penalty that led to its non-imposition and not via the intervention of the Court.

Even if the imposable penalty amounts to cruel punishment, the Court cannot declare the
provision of the law from which the proper penalty emanates unconstitutional in the present
action. Not only is it violative of due process, considering that the State and the concerned
parties were not given the opportunity to comment on the subject matter, it is settled that the
constitutionality of a statute cannot be attacked collaterally because constitutionality issues must
be pleaded directly and not collaterally,43 more so in the present controversy wherein the issues
never touched upon the constitutionality of any of the provisions of the Revised Penal Code.

Besides, it has long been held that the prohibition of cruel and unusual punishments is generally
aimed at the form or character of the punishment rather than its severity in respect of duration or
amount, and applies to punishments which public sentiment has regarded as cruel or obsolete,
for instance, those inflicted at the whipping post, or in the pillory, burning at the stake, breaking
on the wheel, disemboweling, and the like. Fine and imprisonment would not thus be within the
prohibition.44

It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to
be obnoxious to the Constitution. The fact that the punishment authorized by the statute is
severe does not make it cruel and unusual. Expressed in other terms, it has been held that to
come under the ban, the punishment must be "flagrantly and plainly oppressive," "wholly
disproportionate to the nature of the offense as to shock the moral sense of the community."45

Cruel as it may be, as discussed above, it is for the Congress to amend the law and adapt it to
our modern time.

The solution to the present controversy could not be solved by merely adjusting the questioned
monetary values to the present value of money based only on the current inflation rate. There
are other factors and variables that need to be taken into consideration, researched, and
deliberated upon before the said values could be accurately and properly adjusted. The effects
on the society, the injured party, the accused, its socio-economic impact, and the likes must be
painstakingly evaluated and weighed upon in order to arrive at a wholistic change that all of us
believe should be made to our existing law. Dejectedly, the Court is ill-equipped, has no
resources, and lacks sufficient personnel to conduct public hearings and sponsor studies and
surveys to validly effect these changes in our Revised Penal Code. This function clearly and
appropriately belongs to Congress. Even Professor Tadiar concedes to this conclusion, to wit:

xxxx

JUSTICE PERALTA:

Yeah, Just one question. You are suggesting that in order to determine the value of Peso you
have to take into consideration several factors.

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

Per capita income.

PROFESSOR TADIAR:

Per capita income.

JUSTICE PERALTA:

Consumer price index.

PROFESSOR TADIAR:

Yeah.

JUSTICE PERALTA:

Inflation ...

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

... and so on. Is the Supreme Court equipped to determine those factors?

PROFESSOR TADIAR:

There are many ways by which the value of the Philippine Peso can be determined utilizing all
of those economic terms.
JUSTICE PERALTA:

Yeah, but ...

PROFESSOR TADIAR:

And I don’t think it is within the power of the Supreme Court to pass upon and peg the value to
One Hundred (₱100.00) Pesos to ...

JUSTICE PERALTA:

Yeah.

PROFESSOR TADIAR:

... One (₱1.00.00) Peso in 1930.

JUSTICE PERALTA:

That is legislative in nature.

PROFESSOR TADIAR:

That is my position that the Supreme Court ...

JUSTICE PERALTA:

Yeah, okay.

PROFESSOR TADIAR:

... has no power to utilize the power of judicial review to in order to adjust, to make the
adjustment that is a power that belongs to the legislature.

JUSTICE PERALTA:

Thank you, Professor.

PROFESSOR TADIAR:

Thank you.46

Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the view that
the role of the Court is not merely to dispense justice, but also the active duty to prevent
injustice. Thus, in order to prevent injustice in the present controversy, the Court should not
impose an obsolete penalty pegged eighty three years ago, but consider the proposed ratio of
1:100 as simply compensating for inflation. Furthermore, the Court has in the past taken into
consideration "changed conditions" or "significant changes in circumstances" in its decisions.
Similarly, the Chief Justice is of the view that the Court is not delving into the validity of the
substance of a statute. The issue is no different from the Court’s adjustment of indemnity in
crimes against persons, which the Court had previously adjusted in light of current times, like in
the case of People v. Pantoja.47 Besides, Article 10 of the Civil Code mandates a presumption
that the lawmaking body intended right and justice to prevail.

With due respect to the opinions and proposals advanced by the Chief Justice and my
Colleagues, all the proposals ultimately lead to prohibited judicial legislation. Short of being
repetitious and as extensively discussed above, it is truly beyond the powers of the Court to
legislate laws, such immense power belongs to Congress and the Court should refrain from
crossing this clear-cut divide. With regard to civil indemnity, as elucidated before, this refers to
civil liability which is awarded to the offended party as a kind of monetary restitution. It is truly
based on the value of money. The same cannot be said on penalties because, as earlier stated,
penalties are not only based on the value of money, but on several other factors. Further, since
the law is silent as to the maximum amount that can be awarded and only pegged the minimum
sum, increasing the amount granted as civil indemnity is not proscribed. Thus, it can be
adjusted in light of current conditions.

Now, with regard to the penalty imposed in the present case, the CA modified the ruling of the
RTC. The RTC imposed the indeterminate penalty of four (4) years and two (2) months of
prision correccional in its medium period, as minimum, to fourteen (14) years and eight (8)
months of reclusion temporal in its minimum period, as maximum. However, the CA imposed
the indeterminate penalty of four (4) years and two (2) months of prision correccional, as
minimum, to eight (8) years of prision mayor, as maximum, plus one (1) year for each additional
₱10,000.00, or a total of seven (7) years.

In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v. People48 is
highly instructive, thus:

With respect to the imposable penalty, Article 315 of the Revised Penal Code provides:

ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the means
mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum
period, if the amount of the fraud is over 12,000 but does not exceed 22,000 pesos, and if such
amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its
maximum period, adding one year for each additional 10,000 pesos; but the total penalty which
may be imposed shall not exceed twenty years. In such case, and in connection with the
accessory penalties which may be imposed and for the purpose of the other provisions of this
Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be.

The penalty prescribed by Article 315 is composed of only two, not three, periods, in which
case, Article 65 of the same Code requires the division of the time included in the penalty into
three equal portions of time included in the penalty prescribed, forming one period of each of the
three portions. Applying the latter provisions, the maximum, medium and minimum periods of
the penalty prescribed are:

Maximum - 6 years, 8 months, 21 days to 8 years

Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days

Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49

To compute the maximum period of the prescribed penalty, prisión correccional maximum to
prisión mayor minimum should be divided into three equal portions of time each of which portion
shall be deemed to form one period in accordance with Article 6550 of the RPC.51 In the present
case, the amount involved is ₱98,000.00, which exceeds ₱22,000.00, thus, the maximum
penalty imposable should be within the maximum period of 6 years, 8 months and 21 days to 8
years of prision mayor. Article 315 also states that a period of one year shall be added to the
penalty for every additional ₱10,000.00 defrauded in excess of ₱22,000.00, but in no case shall
the total penalty which may be imposed exceed 20 years.

Considering that the amount of ₱98,000.00 is ₱76,000.00 more than the ₱22,000.00 ceiling set
by law, then, adding one year for each additional ₱10,000.00, the maximum period of 6 years, 8
months and 21 days to 8 years of prision mayor minimum would be increased by 7 years.
Taking the maximum of the prescribed penalty, which is 8 years, plus an additional 7 years, the
maximum of the indeterminate penalty is 15 years.

Applying the Indeterminate Sentence Law, since the penalty prescribed by law for the estafa
charge against petitioner is prision correccional maximum to prision mayor minimum, the
penalty next lower would then be prision correccional in its minimum and medium periods.

Thus, the minimum term of the indeterminate sentence should be anywhere from 6 months and
1 day to 4 years and 2 months.

One final note, the Court should give Congress a chance to perform its primordial duty of
lawmaking. The Court should not pre-empt Congress and usurp its inherent powers of making
and enacting laws. While it may be the most expeditious approach, a short cut by judicial fiat is
a dangerous proposition, lest the Court dare trespass on prohibited judicial legislation.

WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of petitioner Lito
Corpuz is hereby DENIED. Consequently, the Decision dated March 22, 2007 and Resolution
dated September 5, 2007 of the Court of Appeals, which affirmed with modification the Decision
dated July 30, 2004 of the Regional Trial Court, Branch 46, San Fernando City, finding
petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315, paragraph
(1), sub-paragraph (b) of the Revised Penal Code, are hereby AFFIRMED with MODIFICATION
that the penalty imposed is the indeterminate penalty of imprisonment ranging from THREE (3)
YEARS, TWO (2) MONTHS and ELEVEN DAYS of prision correccional, as minimum, to
FIFTEEN (15) YEARS of reclusion temporal as maximum.Pursuant to Article 5 of the Revised
Penal Code, let a Copy of this Decision be furnished the President of the Republic of the
Philippines, through the Department of Justice.

Also, let a copy of this Decision be furnished the President of the Senate and the Speaker of the
House of Representatives

G.R. No. 17958             February 27, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
LOL-LO and SARAW, defendants-appellants.

Thos. D. Aitken for appellants.

Acting Attorney-General Tuason for appellee.

MALCOLM, J.:

The days when pirates roamed the seas, when picturesque buccaneers like Captain Avery and
Captain Kidd and Bartholomew Roberts gripped the imagination, when grostesque brutes like
Blackbeard flourished, seem far away in the pages of history and romance. Nevertheless, the
record before us tells a tale of twentieth century piracy in the south seas, but stripped of all
touches of chivalry or of generosity, so as to present a horrible case of rapine and near murder.

On or about June 30, 1920, two boats left matuta, a Dutch possession, for Peta, another Dutch
possession. In one of the boats was one individual, a Dutch subject, and in the other boat
eleven men, women, and children, likewise subjects of Holland. After a number of days of
navigation, at about 7 o'clock in the evening, the second boat arrived between the Islands of
Buang and Bukid in the Dutch East Indies. There the boat was surrounded by
six vintas manned by twenty-four Moros all armed. The Moros first asked for food, but once on
the Dutch boat, too for themselves all of the cargo, attacked some of the men, and brutally
violated two of the women by methods too horrible to the described. All of the persons on the
Dutch boat, with the exception of the two young women, were again placed on it and holes were
made in it, the idea that it would submerge, although as a matter of fact, these people, after
eleven days of hardship and privation, were succored violating them, the Moros finally arrived at
Maruro, a Dutch possession. Two of the Moro marauder were Lol-lo, who also raped one of the
women, and Saraw. At Maruro the two women were able to escape.

Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, Philippine
Islands. There they were arrested and were charged in the Court of First Instance of Sulu with
the crime of piracy. A demurrer was interposed by counsel de officio for the Moros, based on
the grounds that the offense charged was not within the jurisdiction of the Court of First
Instance, nor of any court of the Philippine Islands, and that the facts did not constitute a public
offense, under the laws in force in the Philippine Islands. After the demurrer was overruled by
the trial judge, trial was had, and a judgment was rendered finding the two defendants guilty and
sentencing each of them to life imprisonment (cadena perpetua), to return together with
Kinawalang and Maulanis, defendants in another case, to the offended parties, the thirty-nine
sacks of copras which had been robbed, or to indemnify them in the amount of 924 rupees, and
to pay a one-half part of the costs.

A very learned and exhaustive brief has been filed in this court by the attorney de officio. By a
process of elimination, however, certain questions can be quickly disposed of.

The proven facts are not disputed. All of the elements of the crime of piracy are present. Piracy
is robbery or forcible depredation on the high seas, without lawful authority and done animo
furandi, and in the spirit and intention of universal hostility.

It cannot be contended with any degree of force as was done in the lover court and as is again
done in this court, that the Court of First Instance was without jurisdiction of the case. Pirates
are in law hostes humani generis. Piracy is a crime not against any particular state but against
all mankind. It may be punished in the competent tribunal of any country where the offender
may be found or into which he may be carried. The jurisdiction of piracy unlike all other crimes
has no territorial limits. As it is against all so may it be punished by all. Nor does it matter that
the crime was committed within the jurisdictional 3-mile limit of a foreign state, "for those limits,
though neutral to war, are not neutral to crimes." (U.S. vs. Furlong [1820], 5 Wheat., 184.)

The most serious question which is squarely presented to this court for decision for the first time
is whether or not the provisions of the Penal Code dealing with the crime of piracy are still in
force. Article 153 to 156 of the Penal Code reads as follows:

ART. 153. The crime of piracy committed against Spaniards, or the subjects of another
nation not at war with Spain, shall be punished with a penalty ranging from cadena
temporal to cadena perpetua.

If the crime be committed against nonbelligerent subjects of another nation at war with
Spain, it shall be punished with the penalty of presidio mayor.

ART. 154. Those who commit the crimes referred to in the first paragraph of the next
preceding article shall suffer the penalty of cadena perpetua or death, and those who
commit the crimes referred to in the second paragraph of the same article, from cadena
temporal to cadena perpetua:

1. Whenever they have seized some vessel by boarding or firing upon the same.

2. Whenever the crime is accompanied by murder, homicide, or by any of the

physical injuries specified in articles four hundred and fourteen and four hundred
and fifteen and in paragraphs one and two of article four hundred and sixteen.

3. Whenever it is accompanied by any of the offenses against chastity specified

in Chapter II, Title IX, of this book.

4. Whenever the pirates have abandoned any persons without means of saving
themselves.

5. In every case, the captain or skipper of the pirates.

ART. 155. With respect to the provisions of this title, as well as all others of this code,
when Spain is mentioned it shall be understood as including any part of the national
territory.

ART. 156. For the purpose of applying the provisions of this code, every person, who,
according to the Constitution of the Monarchy, has the status of a Spaniard shall be
considered as such.

The general rules of public law recognized and acted on by the United States relating to the
effect of a transfer of territory from another State to the United States are well-known. The
political law of the former sovereignty is necessarily changed. The municipal law in so far as it is
consistent with the Constitution, the laws of the United States, or the characteristics and
institutions of the government, remains in force. As a corollary to the main rules, laws subsisting
at the time of transfer, designed to secure good order and peace in the community, which are
strictly of a municipal character, continue until by direct action of the new government they are
altered or repealed. (Chicago, Rock Islands, etc., R. Co. vs. McGlinn [1885], 114 U.S., 542.)

These principles of the public law were given specific application to the Philippines by the
Instructions of President McKinley of May 19, 1898, to General Wesley Meritt, the Commanding
General of the Army of Occupation in the Philippines, when he said:

Though the powers of the military occupant are absolute and supreme, and immediately
operate upon the political condition of the inhabitants, the municipal laws of the
conquered territory, such as affect private rights of person and property, and provide for
the punishment of crime, are considered as continuing in force, so far as they are
compatible with the new order of things, until they are suspended or superseded by the
occupying belligerent; and practice they are not usually abrogated, but are allowed to
remain in force, and to be administered by the ordinary tribunals, substantially as they
were before the occupations. This enlightened practice is so far as possible, to be
adhered to on the present occasion. (Official Gazette, Preliminary Number, Jan. 1, 1903,
p. 1. See also General Merritt Proclamation of August 14, 1898.)

It cannot admit of doubt that the articles of the Spanish Penal Code dealing with piracy were
meant to include the Philippine Islands. Article 156 of the Penal Code in relation to article 1 of
the Constitution of the Spanish Monarchy, would also make the provisions of the Code
applicable not only to Spaniards but to Filipinos.

The opinion of Grotius was that piracy by the law of nations is the same thing as piracy by the
civil law, and he has never been disputed. The specific provisions of the Penal Code are similar
in tenor to statutory provisions elsewhere and to the concepts of the public law. This must
necessarily be so, considering that the Penal Code finds its inspiration in this respect in
the Novelas, the Partidas, and the Novisima Recopilacion.

The Constitution of the United States declares that the Congress shall have the power to define
and punish piracies and felonies committed on the high seas, and offenses against the law of
nations. (U.S. Const. Art. I, sec. 8, cl. 10.) The Congress, in putting on the statute books the
necessary ancillary legislation, provided that whoever, on the high seas, commits the crime of
piracy as defined by the law of nations, and is afterwards brought into or found in the United
States, shall be imprisoned for life. (U.S. Crim. Code, sec. 290; penalty formerly death: U.S.
Rev. Stat., sec. 5368.) The framers of the Constitution and the members of Congress were
content to let a definition of piracy rest on its universal conception under the law of nations.

It is evident that the provisions of the Penal Code now in force in the Philippines relating to
piracy are not inconsistent with the corresponding provisions in force in the United States.

By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A logical
construction of articles of the Penal Code, like the articles dealing with the crime of piracy,
would be that wherever "Spain" is mentioned, it should be substituted by the words "United
States" and wherever "Spaniards" are mentioned, the word should be substituted by the
expression "citizens of the United States and citizens of the Philippine Islands." somewhat
similar reasoning led this court in the case of United States vs. Smith ([1919], 39 Phil., 533) to
give to the word "authority" as found in the Penal Code a limited meaning, which would no
longer comprehend all religious, military, and civil officers, but only public officers in the
Government of the Philippine Islands.

Under the construction above indicated, article 153 of the Penal Code would read as follows:

The crime of piracy committed against citizens of the United States and citizens of the
Philippine Islands, or the subjects of another nation not at war with the United States,
shall be punished with a penalty ranging from cadena temporal to cadena perpetua.

If the crime be committed against nonbelligerent subjects of another nation at war with
the United States, it shall be punished with the penalty of presidio mayor.

We hold those provisions of the Penal code dealing with the crime of piracy, notably articles 153
and 154, to be still in force in the Philippines.

The crime falls under the first paragraph of article 153 of the Penal Code in relation to article
154. There are present at least two of the circumstances named in the last cited article as
authorizing either cadena perpetua or death. The crime of piracy was accompanied by (1) an
offense against chastity and (2) the abandonment of persons without apparent means of saving
themselves. It is, therefore, only necessary for us to determine as to whether the penalty
of cadena perpetua or death should be imposed. In this connection, the trial court, finding
present the one aggravating circumstance of nocturnity, and compensating the same by the one
mitigating circumstance of lack of instruction provided by article 11, as amended, of the Penal
Code, sentenced the accused to life imprisonment. At least three aggravating circumstances,
that the wrong done in the commission of the crime was deliberately augmented by causing
other wrongs not necessary for its commission, that advantage was taken of superior strength,
and that means were employed which added ignominy to the natural effects of the act, must
also be taken into consideration in fixing the penalty. Considering, therefore, the number and
importance of the qualifying and aggravating circumstances here present, which cannot be
offset by the sole mitigating circumstance of lack of instruction, and the horrible nature of the
crime committed, it becomes our duty to impose capital punishment.

The vote upon the sentence is unanimous with regard to the propriety of the imposition of the
death penalty upon the defendant and appellant Lo-lo (the accused who raped on of the
women), but is not unanimous with regard to the court, Mr. Justice Romualdez, registers his
nonconformity. In accordance with provisions of Act No. 2726, it results, therefore, that the
judgment of the trial court as to the defendant and appellant Saraw is affirmed, and is reversed
as to the defendant and appellant Lol-lo, who is found guilty of the crime of piracy and is
sentenced therefor to be hung until dead, at such time and place as shall be fixed by the judge
of first instance of the Twenty-sixth Judicial District. The two appellants together with
Kinawalang and Maulanis, defendants in another case, shall indemnify jointly and severally the
offended parties in the equivalent of 924 rupees, and shall pay a one-half part of the costs of
both instances. So ordered.

Araullo, C.J., Johnson, Avanceña, Villamor, Ostrand, Johns and Romualdez, JJ., concur.

G.R. No. L-5270             January 15, 1910

THE UNITED STATES, plaintiff-appellee,
vs.
H. N. BULL, defendant-appellant.

Bruce & Lawrence, for appellant.

Office of the Solicitor-General Harvey, for appellee.

ELLIOTT, J.:

The appellant was convicted in the Court of First Instance of a violation of section 1 of Act No.
55, as amended by section 1 of Act No. 275, and from the judgment entered thereon appealed
to this court, where under proper assignments of error he contends: (1) that the complaint does
not state facts sufficient to confer jurisdiction upon the court; (2) that under the evidence the trial
court was without jurisdiction to hear and determine the case; (3) that Act No. 55 as amended is
in violation of certain provisions of the Constitution of the United States, and void as applied to
the facts of this case; and (4) that the evidence is insufficient to support the conviction.

The information alleges:

That on and for many months prior to the 2d day of December, 1908, the said H. N. Bull
was then and there master of a steam sailing vessel known as the steamship Standard,
which vessel was then and there engaged in carrying and transporting cattle, carabaos,
and other animals from a foreign port and city of Manila, Philippine Islands; that the said
accused H. N. Bull, while master of said vessel, as aforesaid, on or about the 2d day of
December, 1908, did then and there willfully, unlawfully, and wrongly carry, transport,
and bring into the port and city of Manila, aboard said vessel, from the port of Ampieng,
Formosa, six hundred and seventy-seven (677) head of cattle and carabaos, without
providing suitable means for securing said animals while in transit, so as to avoid cruelty
and unnecessary suffering to the said animals, in this, to wit, that the said H. N. Bull,
master, as aforesaid, did then and there fail to provide stalls for said animals so in transit
and suitable means for trying and securing said animals in a proper manner, and did
then and there cause some of said animals to be tied by means of rings passed through
their noses, and allow and permit others to be transported loose in the hold and on the
deck of said vessel without being tied or secured in stalls, and all without bedding; that
by reason of the aforesaid neglect and failure of the accused to provide suitable means
for securing said animals while so in transit, the noses of some of said animals were
cruelly torn, and many of said animals were tossed about upon the decks and hold of
said vessel, and cruelly wounded, bruised, and killed.

All contrary to the provisions of Acts No. 55 and No. 275 of the Philippine Commission.

Section 1 of Act No. 55, which went into effect January 1, 1901, provides that —

The owners or masters of steam, sailing, or other vessels, carrying or transporting cattle,
sheep, swine, or other animals, from one port in the Philippine Islands to another, or
from any foreign port to any port within the Philippine Islands, shall carry with them, upon
the vessels carrying such animals, sufficient forage and fresh water to provide for the
suitable sustenance of such animals during the ordinary period occupied by the vessel in
passage from the port of shipment to the port of debarkation, and shall cause such
animals to be provided with adequate forage and fresh water at least once in every
 twenty-four hours from the time that the animals are embarked to the time of their final
debarkation.

By Act No. 275, enacted October 23, 1901, Act No. 55 was amended by adding to section 1
thereof the following:

The owners or masters of steam, sailing, or other vessels, carrying or transporting cattle,
sheep, swine, or other animals from one port in the Philippine Islands to another, or from
any foreign port to any port within the Philippine Islands, shall provide suitable means for
securing such animals while in transit so as to avoid all cruelty and unnecessary
suffering to the animals, and suitable and proper facilities for loading and unloading
cattle or other animals upon or from vessels upon which they are transported, without
cruelty or unnecessary suffering. It is hereby made unlawful to load or unload cattle upon
or from vessels by swinging them over the side by means of ropes or chains attached to
the thorns.

Section 3 of Act No. 55 provides that —

Any owner or master of a vessel, or custodian of such animals, who knowingly and
willfully fails to comply with the provisions of section one, shall, for every such failure, be
liable to pay a penalty of not less that one hundred dollars nor more that five hundred
dollars, United States money, for each offense. Prosecution under this Act may be
instituted in any Court of First Instance or any provost court organized in the province or
port in which such animals are disembarked.

1. It is contended that the information is insufficient because it does not state that the court was
sitting at a port where the cattle were disembarked, or that the offense was committed on board
a vessel registered and licensed under the laws of the Philippine Islands.

Act No. 55 confers jurisdiction over the offense created thereby on Courts of First Instance or
any provost court organized in the province or port in which such animals are disembarked, and
there is nothing inconsistent therewith in Act No. 136, which provides generally for the
organization of the courts of the Philippine Islands. Act No. 400 merely extends the general
jurisdiction of the courts over certain offenses committed on the high seas, or beyond the
jurisdiction of any country, or within any of the waters of the Philippine Islands on board a ship
or water craft of any kind registered or licensed in the Philippine Islands, in accordance with the
laws thereof. (U.S. vs. Fowler, 1 Phil. Rep., 614.) This jurisdiction may be exercised by the
Court of First Instance in any province into which such ship or water upon which the offense or
crime was committed shall come after the commission thereof. Had this offense been committed
upon a ship carrying a Philippine registry, there could have been no doubt of the Jurisdiction of
the court, because it is expressly conferred, and the Act is in accordance with well recognized
and established public law. But the Standard was a Norwegian vessel, and it is conceded that it
was not registered or licensed in the Philippine Islands under the laws thereof. We have then
the question whether the court had jurisdiction over an offense of this character, committed on
board a foreign ship by the master thereof, when the neglect and omission which constitutes the
offense continued during the time the ship was within the territorial waters of the United States.
No court of the Philippine Islands had jurisdiction over an offenses or crime committed on the
high seas or within the territorial waters of any other country, but when she came within 3 miles
of a line drawn from the headlines which embrace the entrance to Manila Bay, she was within
territorial waters, and a new set of principles became applicable. (Wheaton, Int. Law (Dana ed.),
p. 255, note 105; Bonfils, Le Droit Int., sec 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and
her crew were then subject to the jurisdiction of the territorial sovereign subject through the
proper political agency. This offense was committed within territorial waters. From the line which
determines these waters the Standard must have traveled at least 25 miles before she came to
anchor. During that part of her voyage the violation of the statue continued, and as far as the
jurisdiction of the court is concerned, it is immaterial that the same conditions may have existed
while the vessel was on the high seas. The offense, assuming that it originated at the port of
departure in Formosa, was a continuing one, and every element necessary to constitute it
existed during the voyage across the territorial waters. The completed forbidden act was done
within American waters, and the court therefore had jurisdiction over the subject-matter of the
offense and the person of the offender.

The offense then was thus committed within the territorial jurisdiction of the court, but the
objection to the jurisdiction raises the further question whether that jurisdiction is restricted by
the fact of the nationality of the ship. Every. Every state has complete control and jurisdiction
over its territorial waters. According to strict legal right, even public vessels may not enter the
ports of a friendly power without permission, but it is now conceded that in the absence of a
prohibition such ports are considered as open to the public ship of all friendly powers. The
exemption of such vessels from local jurisdiction while within such waters was not established
until within comparatively recent times. In 1794, Attorney-General Bradford, and in 1796
Attorney-General Lee, rendered opinions to the effect that "the laws of nations invest the
commander of a foreign ship of war with no exemption from the jurisdiction of the country into
which he comes." (1, Op. U.S. Attys. Gen., 46, 87.) This theory was also supported by Lord
Stowell in an opinion given by him to the British Government as late as 1820. In the leading
case of the Schooner Exchange vs. McFadden (7 Cranch (U.S.), 116, 144), Chief Justice
Marshall said that the implied license under which such vessels enter a friendly port may
reasonably be construed as "containing exemption from the jurisdiction of the sovereign within
whose territory she claims the rights of hospitality." The principle was accepted by the Geneva
Arbitration Tribunal, which announced that "the priviledge of exterritoriality accorded to vessels
of war has been admitted in the law of nations; not as an absolute right, but solely as a
proceeding founded on the principle of courtesy and mutual deference between nations."
(2 Moore, Int. Law Dig., secs. 252 and 254; Hall, Int. Law, sec. 55; Taylor, Int. Law, sec. 256;
Ortolan, Dip de la Mer, 2. C.X.)

Such vessels are therefore permitted during times of peace to come and go freely. Local official
exercise but little control over their actions, and offenses committed by their crew are justiciable
by their own officers acting under the laws to which they primarily owe allegiance. This limitation
upon the general principle of territorial sovereignty is based entirely upon comity and
convenience, and finds its justification in the fact that experience shows that such vessels are
generally careful to respect local laws and regulation which are essential to the health, order,
and well-being of the port. But comity and convenience does not require the extension of the
same degree of exemption to merchant vessels. There are two well-defined theories as to
extent of the immunities ordinarily granted to them, According to the French theory and practice,
matters happening on board a merchant ship which do not concern the tranquillity of the port or
persons foreign to the crew, are justiciable only by the court of the country to which the vessel
belongs. The French courts therefore claim exclusive jurisdiction over crimes committed on
board French merchant vessels in foreign ports by one member of the crew against another.
(See Bonfils, Le Droit Int. (quat. ed.), secs. 624-628; Martens, Le Droit Int., tome 2, pp. 338,
339; Ortolan, Dip. de la Mer, tit. 1, p. 292; Masse, Droit Int., tome 2, p. 63.) Such jurisdiction has
never been admitted or claim by Great Britain as a right, although she has frequently conceded
it by treaties. (Halleck, Int. Law (Baker's ed.), vol. 1, 231; British Territorial Waters Act, 1878.)
Writers who consider exterritoriality as a fact instead of a theory have sought to restrict local
jurisdiction, but Hall, who is doubtless the leading English authority, says that —

It is admitted by the most thoroughgoing asserters of the territoriality of merchant

vessels that so soon as the latter enter the ports of a foreign state they become subject
to the local jurisdiction on all points in which the interests of the country are touched.
(Hall, Int. Law, p. 263.)

The United States has adhered consistently to the view that when a merchant vessel enters a
foreign port it is subject to the jurisdiction of the local authorities, unless the local sovereignty
has by act of acquiescence or through treaty arrangements consented to waive a portion of
such jurisdiction. (15 Op. Attys. Gen., U. S., 178; 2 Moore, Int. Law Dig., sec. 204; article by
Dean Gregory, Mich. Law Review, Vol. II, No. 5.) Chief Justice Marshall, in the case of
the Exchange, said that —

When merchant vessels enter for the purpose of trade, in would be obviously in
convinient and dangerous to society and would subject the laws to continual infraction
and the government to degradation if such individual merchants did not owe temporary
and local allegiance, and were not amendable to the jurisdiction of the country.

The Supreme Court of the United States has recently said that the merchant vessels of one
country visiting the ports of another for the purpose of trade, subject themselves to the laws
which govern the ports they visit, so long as they remain; and this as well in war as in peace,
unless otherwise provided by treaty. (U. S. vs. Diekelman, 92 U. S., 520-525.)

Certain limitations upon the jurisdiction of the local courts are imposed by article 13 of the treaty
of commerce and navigation between Sweden and Norway and the United States, of July 4,
1827, which concedes to the consul, vice-consuls, or consular agents of each country "The right
to sit as judges and arbitrators in such differences as may arise between the captains and crews
of the vessels belonging to the nation whose interests are committed to their charge, without the
interference of the local authorities, unless the conduct of the crews or of the captains should
disturb the order or tranquillity of the country." (Comp. of Treaties in Force, 1904, p. 754.) This
exception applies to controversies between the members of the ship's company, and particularly
to disputes regarding wages. (2 Moore, Int. Law Dig., sec. 206, p. 318; Tellefsen vs. Fee, 168
Mass., 188.) The order and tranquillity of the country are affected by many events which do not
amount to a riot or general public disturbance. Thus an assault by one member of the crew
upon another, committed upon the ship, of which the public may have no knowledge whatever,
is not by this treaty withdrawn from the cognizance of the local authorities.

In 1876 the mates of the Swedish bark Frederike and Carolina engaged in a "quarrel" on board
the vessel in the port of Galveston, Texas. They were prosecuted before a justice of the peace,
but the United States district attorney was instructed by the Government to take the necessary
steps to have the proceedings dismissed, and the aid of the governor of Texas was invoked with
the view to "guard against a repetition of similar proceedings." (Mr. Fish, Secretary of State, to
Mr. Grip, Swedish and Norwegian charged, May 16, 1876; Moore, Int. Law Dig.) It does not
appear that this "quarrel" was of such a nature as to amount to a breach of the criminal laws of
Texas, but when in 1879 the mate for the Norwegian bark Livingston was prosecuted in the
courts of Philadelphia County for an assault and battery committed on board the ship while lying
in the port of Philadelphia, it was held that there was nothing in the treaty which deprived the
local courts of jurisdiction. (Commonwealth vs. Luckness, 14 Phila. (Pa.), 363.) Representations
were made through diplomatic channels to the State Department, and on July 30, 1880, Mr.
Evarts, Secretary of State, wrote to Count Lewenhaupt, the Swedish and Norwegian minister,
as follows:

I have the honor to state that I have given the matter careful consideration in connection
with the views and suggestion of your note and the provisions of the thirteenth article of
the treaty of 1827 between the United States and Sweden and Norway. The stipulations
contained in the last clause of that article . . . are those under which it is contended by
you that jurisdiction is conferred on the consular officers, not only in regard to such
differences of a civil nature growing out of the contract of engagement of the seamen,
but also as to disposing of controversies resulting from personal violence involving
offense for which the party may be held amenable under the local criminal law.

This Government does not view the article in question as susceptible of such broad
interpretation. The jurisdiction conferred upon the consuls is conceived to be limited to
their right to sit as judges or abitrators in such differences as may arise between
captains and crews of the vessels, where such differences do not involve on the part of
the captain or crew a disturbance of the order or tranquillity of the country. When,
however, a complaint is made to a local magistrate, either by the captain or one or more
of the crew of the vessel, involving the disturbance of the order or tranquillity of the
country, it is competent for such magistrate to take cognizance of the matter in
furtherance of the local laws, and under such circumstances in the United States it
becomes a public duty which the judge or magistrate is not at liberty voluntarily to
forego. In all such cases it must necessarily be left to the local judicial authorities
whether the procedure shall take place in the United States or in Sweden to determine if
in fact there had been such disturbance of the local order and tranquillity, and if the
complaint is supported by such proof as results in the conviction of the party accused, to
visit upon the offenders such punishment as may be defined against the offense by the
municipal law of the place." (Moore, Int. Law Dig., vol. 2, p. 315.)

The treaty does not therefore deprive the local courts of jurisdiction over offenses committed on
board a merchant vessel by one member of the crew against another which amount to a
disturbance of the order or tranquillity of the country, and a fair and reasonable construction of
the language requires un to hold that any violation of criminal laws disturbs the order or
traquillity of the country. The offense with which the appellant is charged had nothing to so with
any difference between the captain and the crew. It was a violation by the master of the criminal
law of the country into whose port he came. We thus find that neither by reason of the
nationality of the vessel, the place of the commission of the offense, or the prohibitions of any
treaty or general principle of public law, are the court of the Philippine Islands deprived of
jurisdiction over the offense charged in the information in this case.

It is further contended that the complaint is defective because it does not allege that the animals
were disembarked at the port of Manila, an allegation which it is claimed is essential to the
jurisdiction of the court sitting at that port. To hold with the appellant upon this issue would be to
construe the language of the complaint very strictly against the Government. The
disembarkation of the animals is not necessary in order to constitute the completed offense, and
a reasonable construction of the language of the statute confers jurisdiction upon the court
sitting at the port into which the animals are bought. They are then within the territorial
jurisdiction of the court, and the mere fact of their disembarkation is immaterial so far as
jurisdiction is concerned. This might be different if the disembarkation of the animals constituted
a constitutional element in the offense, but it does not.

It is also contended that the information is insufficient because it fails to allege that the
defendant knowingly and willfully failed to provide suitable means for securing said animals
while in transit, so as to avoid cruelty and unnecessary suffering. The allegation of the complaint
that the act was committed willfully includes the allegation that it was committed knowingly. As
said in Woodhouse vs. Rio Grande R.R. Company (67 Texas, 416), "the word 'willfully' carries
the idea, when used in connection with an act forbidden by law, that the act must be done
knowingly or intentionally; that, with knowledge, the will consented to, designed, and directed
the act." So in Wong vs. City of Astoria (13 Oregon, 538), it was said: "The first one is that the
complaint did not show, in the words of the ordinance, that the appellant 'knowingly' did the act
complained of. This point, I think, was fully answered by the respondent's counsel — that the
words 'willfully' and 'knowingly' conveyed the same meaning. To 'willfully' do an act implies that
it was done by design — done for a certain purpose; and I think that it would necessarily follow
that it was 'knowingly' done." To the same effect is Johnson vs. The People (94 Ill., 505), which
seems to be on all fours with the present case.

The evidence shows not only that the defendant's acts were knowingly done, but his defense
rests upon the assertion that "according to his experience, the system of carrying cattle loose
upon the decks and in the hold is preferable and more secure to the life and comfort of the
animals." It was conclusively proven that what was done was done knowingly and intentionally.

In charging an offense under section 6 of General Orders, No. 58, paragraph 3, it is only
necessary to state the act or omission complained of as constituting a crime or public offense in
ordinary and concise language, without repitition. It need not necessarily be in the words of the
statute, but it must be in such form as to enable a person of common understanding to know
what is intended and the court to pronounce judgment according to right. A complaint which
complies with this requirement is good. (U.S. vs. Sarabia, 4 Phil. Rep., 556.)

The Act, which is in the English language, impose upon the master of a vessel the duty to
"provide suitable means for securing such animals while in transit, so as to avoid all cruelty and
unnecessary suffering to the animals." The allegation of the complaint as it reads in English is
that the defendant willfully, unlawfully, and wrongfully carried the cattle "without providing
suitable means for securing said animals while in transit, so as to avoid cruelty and unnecessary
suffering to the said animals in this . . . that by reason of the aforesaid neglect and failure of the
accused to provide suitable means for securing said animals were cruelty torn, and many of
said animals were tossed about upon the decks and hold of said vessels, and cruelty wounded,
bruised, and killed."

The appellant contends that the language of the Spanish text of the information does not charge
him with failure to provide "sufficient" and "adequate" means. The words used are "medios
suficientes" and "medios adecuados." In view of the fact that the original complaint was
prepared in English, and that the word "suitable" is translatable by the words "adecuado,"
"suficiente," and "conveniente," according to the context and circumstances, we determine this
point against the appellant, particularly in view of the fact that the objection was not made in the
court below, and that the evidence clearly shows a failure to provide "suitable means for the
protection of the animals."
2. The appellant's arguments against the constitutionality of Act No. 55 and the amendment
thereto seems to rest upon a fundamentally erroneous conception of the constitutional law of
these Islands. The statute penalizes acts and ommissions incidental to the transportation of live
stock between foreign ports and ports of the Philippine Islands, and had a similar statute
regulating commerce with its ports been enacted by the legislature of one of the States of the
Union, it would doubtless have been in violation of Article I, section 3, of the Constitution of the
United States. (Stubbs vs. People (Colo.), 11 L. R. A., N. S., 1071.)

But the Philippine Islands is not a State, and its relation to the United States is controlled by
constitutional principles different from those which apply to States of the Union. The importance
of the question thus presented requires a statement of the principles which govern those
relations, and consideration of the nature and extent of the legislative power of the Philippine
Commission and the Legislature of the Philippines. After much discussion and considerable
diversity of opinion certain applicable constitutional doctrines are established.

The Constitution confers upon the United States the express power to make war and treaties,
and it has the power possessed by all nations to acquire territory by conquest or treaty. Territory
thus acquired belongs to the United States, and to guard against the possibility of the power of
Congress to provide for its government being questioned, the framers of the Constitution
provided in express terms that Congress should have the power "to dispose of and make all
needful rules and regulations respecting territory and other property belonging to the United
States." (Art. IV, sec. 3, par. 3.) Upon the acquisition of the territory by the United States, and
until it is formally incorporated into the Union, the duty of providing a government therefor
devolves upon Congress. It may govern the territory by its direct acts, or it may create a local
government, and delegate thereto the ordinary powers required for local government.
(Binns vs. U. S., 194 U. S., 486.) This has been the usual procedure. Congress has provided
such governments for territories which were within the Union, and for newly acquired territory
not yet incorporated therein. It has been customary to organize a government with the ordinary
separation of powers into executive, legislative, and judicial, and to prescribe in an organic act
certain general conditions in accordance with which the local government should act. The
organic act thus became the constitution of the government of the territory which had not been
formally incorporated into the Union, and the validity of legislation enacted by the local
legislature was determined by its conformity with the requirements of such organic act. (National
Bank vs. Yankton, 11 Otto (U. S.), 129.) To the legislative body of the local government
Congress has delegated that portion of legislative power which in its wisdom it deemed
necessary for the government of the territory, reserving, however, the right to annul the action of
the local legislature and itself legislate directly for the territory. This power has been exercised
during the entire period of the history of the United States. The right of Congress to delegate
such legislative power can no longer be seriously questioned. (Dorr vs. U. S., 195 U. S., 138; U.
S. vs. Heinszen, 206 U. S., 370, 385.)

The Constitution of the United States does not by its own force operate within such territory,
although the liberality of Congress in legislating the Constitution into contiguous territory tended
to create an impression upon the minds of many people that it went there by its own force.
(Downes vs. Bidwell, 182 U. S., 289.) In legislating with reference to this territory, the power of
Congress is limited only by those prohibitions of the Constitution which go to the very root of its
power to act at all, irrespective of time or place. In all other respects it is plenary. (De
Lima vs. Bidwell, 182 U. S., 1; Downes vs. Bidwell, 182 U. S., 244; Hawaii vs. Mankichi, 190 U.
S., 197; Dorr vs. U. S., 195 U. S., 138; Rassmussen vs. U. S., 197 U. S., 516.)
This power has been exercised by Congress throughout the whole history of the United States,
and legislation founded on the theory was enacted long prior to the acquisition of the present
Insular possessions. Section 1891 of the Revised Statutes of 1878 provides that "The
Constitution and all laws of the United States which are not locally inapplicable shall have the
same force and effect within all the organized territories, and in every Territory hereafter
organized, as elsewhere within the United States." When Congress organized a civil
government for the Philippines, it expressly provided that this section of the Revised Statutes
should not apply to the Philippine Islands. (Sec. 1, Act of 1902.)

In providing for the government of the territory which was acquired by the United States as a
result of the war with Spain, the executive and legislative authorities have consistently
proceeded in conformity with the principles above state. The city of Manila was surrendered to
the United States on August 13, 1898, and the military commander was directed to hold the city,
bay, and harbor, pending the conclusion of a peace which should determine the control,
disposition, and government of the Islands. The duty then devolved upon the American
authorities to preserve peace and protect person and property within the occupied territory.
Provision therefor was made by proper orders, and on August 26 General Merritt assumed the
duties of military governor. The treaty of peace was signed December 10, 1898. On the 22d of
December, 1898, the President announced that the destruction of the Spanish fleet and the
surrender of the city had practically effected the conquest of the Philippine Islands and the
suspension of the Spanish sovereignty therein, and that by the treaty of peace the future
control, disposition, and government of the Islands had been ceded to the United States. During
the periods of strict military occupation, before the treaty of peace was ratified, and the interim
thereafter, until Congress acted (Santiago vs. Noueral, 214 U.S., 260), the territory was
governed under the military authority of the President as commander in chief. Long before
Congress took any action, the President organized a civil government which, however, had its
legal justification, like the purely military government which it gradually superseded, in the war
power. The military power of the President embraced legislative, executive personally, or
through such military or civil agents as he chose to select. As stated by Secretary Root in his
report for 1901 —

The military power in exercise in a territory under military occupation includes executive,
legislative, and judicial authority. It not infrequently happens that in a single order of a
military commander can be found the exercise of all three of these different powers —
the exercise of the legislative powers by provisions prescribing a rule of action; of judicial
power by determination of right; and the executive power by the enforcement of the rules
prescribed and the rights determined.

President McKinley desired to transform military into civil government as rapidly as conditions
would permit. After full investigation, the organization of civil government was initiated by the
appointment of a commission to which civil authority was to be gradually transferred. On
September 1, 1900, the authority to exercise, subject to the approval of the President. "that part
of the military power of the President in the Philippine Islands which is legislative in its
character" was transferred from the military government to the Commission, to be exercised
under such rules and regulations as should be prescribed by the Secretary of War, until such
time as complete civil government should be established, or congress otherwise provided. The
legislative power thus conferred upon the Commission was declared to include "the making of
rules and orders having the effect of law for the raising of revenue by taxes, customs duties, and
imposts; the appropriation and expenditure of public funds of the Islands; the establishment of
an educational system to secure an efficient civil service; the organization and establishment of
courts; the organization and establishment of municipal and departmental government, and all
other matters of a civil nature which the military governor is now competent to provide by rules
or orders of a legislative character." This grant of legislative power to the Commission was to be
exercised in conformity with certain declared general principles, and subject to certain specific
restrictions for the protection of individual rights. The Commission were to bear in mind that the
government to be instituted was "not for our satisfaction or for the expression of our theoretical
views, but for the happiness, peace, and prosperity of the people of the Philippine Island, and
the measures adopted should be made to conforms to their customs, their habits, and even their
prejudices, to the fullest extent consistent with the accomplishment of the indispensable
requisites of just and effective government." The specific restrictions upon legislative power
were found in the declarations that "no person shall be deprived of life, liberty, or property
without due process of law; that private property shall not be taken for public use without just
compensation; that in all criminal prosecutions the accused shall enjoy the right to a speedy and
public trial, to be informed of the nature and cause of the accusation, to be confronted with the
witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to
have the assistance of counsel for his defense; that excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishment inflicted; that no person shall be put
twice in jeopardy for the same offense or be compelled in any criminal case to be a witness
against himself; that the right to be secure against unreasonable searches and seizures shall
not be violated; that neither slavery nor involuntary servitude shall exist except as a punishment
for crime; that no bill of attainder or ex post facto law shall be passed; that no law shall be
passed abridging the freedom of speech or of the press or of the rights of the people to
peaceably assemble and petition the Government for a redress of grievances; that no law shall
be made respecting an establishment of religion or prohibiting the free exercise thereof, and that
the free exercise and enjoyment of religious profession and worship without discrimination or
preference shall forever be allowed."

To prevent any question as to the legality of these proceedings being raised, the Spooner
amendment to the Army Appropriation Bill passed March 2, 1901, provided that "all military,
civil, and judicial powers necessary to govern the Philippine Islands . . . shall until otherwise
provided by Congress be vested in such person and persons, and shall be exercised in such
manner, as the President of the United States shall direct, for the establishment of civil
government, and for maintaining and protecting the inhabitants of said Islands in the free
enjoyment of their liberty, property, and religion." Thereafter, on July 4, 1901, the authority,
which had been exercised previously by the military governor, was transferred to that official.
The government thus created by virtue of the authority of the President as Commander in Chief
of the Army and Navy continued to administer the affairs of the Islands under the direction of the
President until by the Act of July 1, 1902, Congress assumed control of the situation by the
enactment of a law which, in connection with the instructions of April 7, 1900, constitutes the
organic law of the Philippine Islands.

The Act of July 1, 1902, made no substancial changes in the form of government which the
President had erected. Congress adopted the system which was in operation, and approved the
action of the President in organizing the government. Substantially all the limitations which had
been imposed on the legislative power by the President's instructions were included in the law,
Congress thus extending to the Islands by legislative act nor the Constitution, but all its
provisions for the protection of the rights and privileges of individuals which were appropriate
under the conditions. The action of the President in creating the Commission with designated
powers of government, in creating the office of the Governor-General and Vice-Governor-
General, and through the Commission establishing certain executive departments, was
expressly approved and ratified. Subsequently the action of the President in imposing a tariff
before and after the ratification of the treaty of peace was also ratified and approved by
Congress. (Act of March 8, 1902; Act of July 1, 1902; U.S. vs. Heinszen, 206 U.S., 370;
Lincoln vs. U.S., 197 U.S., 419.) Until otherwise provided by law the Islands were to continue to
be governed "as thereby and herein provided." In the future the enacting clause of all statutes
should read "By authority of the United States" instead of "By the authority of the President." In
the course of time the legislative authority of the Commission in all parts of the Islands not
inhabited by Moros or non-Christian tribes was to be transferred to a legislature consisting of
two houses — the Philippine Commission and the Philippine Assembly. The government of the
Islands was thus assumed by Congress under its power to govern newly acquired territory not
incorporated into the United States.

This Government of the Philippine Islands is not a State or a Territory, although its form and
organization somewhat resembles that of both. It stands outside of the constitutional relation
which unites the States and Territories into the Union. The authority for its creation and
maintenance is derived from the Constitution of the United States, which, however, operates on
the President and Congress, and not directly on the Philippine Government. It is the creation of
the United States, acting through the President and Congress, both deriving power from the
same source, but from different parts thereof. For its powers and the limitations thereon the
Government of the Philippines looked to the orders of the President before Congress acted and
the Acts of Congress after it assumed control. Its organic laws are derived from the formally and
legally expressed will of the President and Congress, instead of the popular sovereign
constituency which lies upon any subject relating to the Philippines is primarily in Congress, and
when it exercise such power its act is from the viewpoint of the Philippines the legal equivalent
of an amendment of a constitution in the United States.

Within the limits of its authority the Government of the Philippines is a complete governmental
organism with executive, legislative, and judicial departments exercising the functions
commonly assigned to such departments. The separation of powers is as complete as in most
governments. In neither Federal nor State governments is this separation such as is implied in
the abstract statement of the doctrine. For instance, in the Federal Government the Senate
exercises executive powers, and the President to some extent controls legislation through the
veto power. In a State the veto power enables him to exercise much control over legislation.
The Governor-General, the head of the executive department in the Philippine Government, is a
member of the Philippine Commission, but as executive he has no veto power. The President
and Congress framed the government on the model with which Americans are familiar, and
which has proven best adapted for the advancement of the public interests and the protection of
individual rights and priviliges.

In instituting this form of government of intention must have been to adopt the general
constitutional doctrined which are inherent in the system. Hence, under it the Legislature must
enact laws subject to the limitations of the organic laws, as Congress must act under the
national Constitution, and the States under the national and state constitutions. The executive
must execute such laws as are constitutionally enacted. The judiciary, as in all governments
operating under written constitutions, must determine the validity of legislative enactments, as
well as the legality of all private and official acts. In performing these functions it acts with the
same independence as the Federal and State judiciaries in the United States. Under no other
constitutional theory could there be that government of laws and not of men which is essential
for the protection of rights under a free and orderly government.
Such being the constitutional theory of the Government of the Philippine Islands, it is apparent
that the courts must consider the question of the validity of an act of the Philippine Commission
or the Philippine Legislature, as a State court considers an act of the State legislature. The
Federal Government exercises such powers only as are expressly or impliedly granted to it by
the Constitution of the United States, while the States exercise all powers which have not been
granted to the central government. The former operates under grants, the latter subject to
restrictions. The validity of an Act of Congress depends upon whether the Constitution of the
United States contains a grant of express or implied authority to enact it. An act of a State
legislature is valid unless the Federal or State constitution expressly or impliedly prohibits its
enaction. An Act of the legislative authority of the Philippines Government which has not been
expressly disapproved by Congress is valid unless its subject-matter has been covered by
congressional legislation, or its enactment forbidden by some provision of the organic laws.

The legislative power of the Government of the Philippines is granted in general terms subject to
specific limitations. The general grant is not alone of power to legislate on certain subjects, but
to exercise the legislative power subject to the restrictions stated. It is true that specific authority
is conferred upon the Philippine Government relative to certain subjects of legislation, and that
Congress has itself legislated upon certain other subjects. These, however, should be viewed
simply as enactments on matters wherein Congress was fully informed and ready to act, and
not as implying any restriction upon the local legislative authority in other matters. (See Opinion
of Atty. Gen. of U. S., April 16, 1908.)

The fact that Congress reserved the power to annul specific acts of legislation by the
Government of the Philippine tends strongly to confirm the view that for purposes of
construction the Government of the Philippines should be regarded as one of general instead of
enumerated legislative powers. The situation was unusual. The new government was to operate
far from the source of its authority. To relieve Congress from the necessity of legislating with
reference to details, it was thought better to grant general legislative power to the new
government, subject to broad and easily understood prohibitions, and reserve to Congress the
power to annul its acts if they met with disapproval. It was therefore provided "that all laws
passed by the Government of the Philippine Islands shall be reported to Congress, which
hereby reserves the power and authority to annul the same." (Act of Congress, July 1, 1902,
sec. 86.) This provision does not suspend the acts of the Legislature of the Philippines until
approved by Congress, or when approved, expressly or by acquiescence, make them the laws
of Congress. They are valid acts of the Government of the Philippine Islands until annulled.
(Miners Bank vs. Iowa, 12 How. (U. S.), 1.)

In order to determine the validity of Act No. 55 we must then ascertain whether the Legislature
has been expressly or implication forbidden to enact it. Section 3, Article IV, of the Constitution
of the United States operated only upon the States of the Union. It has no application to the
Government of the Philippine Islands. The power to regulate foreign commerce is vested in
Congress, and by virtue of its power to govern the territory belonging to the United States, it
may regulate foreign commerce with such territory. It may do this directly, or indirectly through a
legislative body created by it, to which its power in this respect if delegate. Congress has by
direct legislation determined the duties which shall be paid upon goods imported into the
Philippines, and it has expressly authorized the Government of the Philippines to provide for the
needs of commerce by improving harbors and navigable waters. A few other specific provisions
relating to foreign commerce may be found in the Acts of Congress, but its general regulation is
left to the Government of the Philippines, subject to the reserved power of Congress to annul
such legislation as does not meet with its approval. The express limitations upon the power of
the Commission and Legislature to legislate do not affect the authority with respect to the
regulation of commerce with foreign countries. Act No. 55 was enacted before Congress took
over the control of the Islands, and this act was amended by Act No. 275 after the Spooner
amendment of March 2, 1901, was passed. The military government, and the civil government
instituted by the President, had the power, whether it be called legislative or administrative, to
regulate commerce between foreign nations and the ports of the territory. (Cross vs. Harrison,
16 How. (U.S.), 164, 190; Hamilton vs. Dillin, 21 Wall. (U.S.), 73, 87.) This Act has remained in
force since its enactment without annulment or other action by Congress, and must be
presumed to have met with its approval. We are therefore satisfied that the Commission had,
and the Legislature now has, full constitutional power to enact laws for the regulation of
commerce between foreign countries and the ports of the Philippine Islands, and that Act No.
55, as amended by Act No. 275, is valid.

3. Whether a certain method of handling cattle is suitable within the meaning of the Act can not
be left to the judgment of the master of the ship. It is a question which must be determined by
the court from the evidence. On December 2, 1908, the defendant Bull brought into and
disembarked in the port and city of Manila certain cattle, which came from the port of Ampieng,
Formosa, without providing suitable means for securing said animals while in transit, so as to
avoid cruelty and unnecessary suffering to said animals, contrary to the provisions of section 1
of Act No. 55, as amended by section 1 of Act No. 275. The trial court found the following facts,
all of which are fully sustained by the evidence:

That the defendant, H. N. Bull, as captain and master of the Norwegian steamer known
as the Standard, for a period of six months or thereabouts prior to the 2d day of
December, 1908, was engaged in the transportation of cattle and carabaos from Chines
and Japanese ports to and into the city of Manila, Philippine Islands.

That on the 2d day of December, 1908, the defendant, as such master and captain as
aforesaid, brought into the city of Manila, aboard said ship, a large number of cattle,
which ship was anchored, under the directions of the said defendant, behind the
breakwaters in front of the city of Manila, in Manila Bay, and within the jurisdiction of this
court; and that fifteen of said cattle then and there had broken legs and three others of
said cattle were dead, having broken legs; and also that said cattle were transported and
carried upon said ship as aforesaid by the defendant, upon the deck and in the hold of
said ship, without suitable precaution and care for the transportation of said animals, and
to avoid danger and risk to their lives and security; and further that said cattle were so
transported abroad said ship by the defendant and brought into the said bay, and into
the city of Manila, without any provisions being made whatever upon said decks of said
ship and in the hold thereof to maintain said cattle in a suitable condition and position for
such transportation.

That a suitable and practicable manner in which to transport cattle abroad steamship
coming into Manila Bay and unloading in the city of Manila is by way of individual stalls
for such cattle, providing partitions between the cattle and supports at the front sides,
and rear thereof, and cross-cleats upon the floor on which they stand and are
transported, of that in case of storms, which are common in this community at sea, such
cattle may be able to stand without slipping and pitching and falling, individually or
collectively, and to avoid the production of panics and hazard to the animals on account
or cattle were transported in this case. Captain Summerville of the steamship Taming, a
very intelligent and experienced seaman, has testified, as a witness in behalf of the
 Government, and stated positively that since the introduction in the ships with which he
is acquainted of the stall system for the transportation of animals and cattle he has
suffered no loss whatever during the last year. The defendant has testified, as a witness
in his own behalf, that according to his experience the system of carrying cattle loose
upon the decks and in the hold is preferable and more secure to the life and comfort of
the animals, but this theory of the case is not maintainable, either by the proofs or
common reason. It can not be urged with logic that, for instance, three hundred cattle
supports for the feet and without stalls or any other protection for them individually can
safely and suitably carried in times of storm upon the decks and in the holds of ships;
such a theory is against the law of nature. One animal falling or pitching, if he is untied or
unprotected, might produce a serious panic and the wounding of half the animals upon
the ship if transported in the manner found in this case.

The defendant was found guilty, and sentenced to pay a fine of two hundred and fifty pesos,
with subsidiary imprisonment in case of insolvency, and to pay the costs. The sentence and
judgment is affirmed. So ordered.

Arellano, C.J., Torres, Johnson, Carson and Moreland, JJ., concur.

G.R. No. L-5887 December 16, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
LOOK CHAW (alias LUK CHIU), defendant-appellant.

Thos. D. Aitken for appellant.

Attorney-General Villamor for appellee.

ARELLANO, C. J.:

The first complaint filed against the defendant, in the Court of First Instance of Cebu, stated that
he "carried, kept, possessed and had in his possession and control, 96 kilogrammes of opium,"
and that "he had been surprised in the act of selling 1,000 pesos worth prepared opium."

The defense presented a demurrer based on two grounds, the second of which was the more
than one crime was charged in the complaint. The demurrer was sustained, as the court found
that the complaint contained two charges, one, for the unlawful possession of opium, and the
other, for the unlawful sale of opium, and, consequence of that ruling, it ordered that the fiscal
should separated one charge from the other and file a complaint for each violation; this, the
fiscal did, and this cause concerns only the unlawful possession of opium. It is registered as No.
375, in the Court of First Instance of Cebu, and as No. 5887 on the general docket of this court.

The facts of the case are contained in the following finding of the trial court:

The evidence, it says, shows that between 11 and 12 o'clock a. m. on the present month
(stated as August 19, 1909), several persons, among them Messrs. Jacks and Milliron,
chief of the department of the port of Cebu and internal-revenue agent of Cebu,
respectively, went abroad the steamship Erroll to inspect and search its cargo, and
found, first in a cabin near the saloon, one sack (Exhibit A) and afterwards in the hold,
another sack (Exhibit B). The sack referred to as Exhibit A contained 49 cans of opium,
and the other, Exhibit B, the larger sack, also contained several cans of the same
substance. The hold, in which the sack mentioned in Exhibit B was found, was under the
defendant's control, who moreover, freely and of his own will and accord admitted that
this sack, as well as the other referred to in Exhibit B and found in the cabin, belonged to
him. The said defendant also stated, freely and voluntarily, that he had bought these
sacks of opium, in Hongkong with the intention of selling them as contraband in Mexico
or Vera Cruz, and that, as his hold had already been searched several times for opium,
he ordered two other Chinamen to keep the sack. Exhibit A.

It is to be taken into account that the two sacks of opium, designated as Exhibits A and B,
properly constitute the corpus delicti. Moreover, another lot of four cans of opium, marked, as
Exhibit C, was the subject matter of investigation at the trial, and with respect to which the chief
of the department of the port of Cebu testified that they were found in the part of the ship where
the firemen habitually sleep, and that they were delivered to the first officer of the ship to be
returned to the said firemen after the vessel should have left the Philippines, because the
firemen and crew of foreign vessels, pursuant to the instructions he had from the Manila
custom-house, were permitted to retain certain amounts of opium, always provided it should not
be taken shore.

And, finally, another can of opium, marked "Exhibit D," is also corpus delicti and important as
evidence in this cause. With regard to this the internal-revenue agent testified as follows:itc-alf

FISCAL. What is it?

WITNESS. It is a can opium which was bought from the defendant by a secret-service
agent and taken to the office of the governor to prove that the accused had opium in his
possession to sell.

On motion by the defense, the court ruled that this answer might be stricken out "because it
refers to a sale." But, with respect to this answer, the chief of the department of customs had
already given this testimony, to wit:

FISCAL. Who asked you to search the vessel?

WITNESS. The internal-revenue agent came to my office and said that a party brought
him a sample of opium and that the same party knew that there was more opium on
board the steamer, and the agent asked that the vessel be searched.

The defense moved that this testimony be rejected, on the ground of its being hearsay
evidence, and the court only ordered that the part thereof "that there was more opium, on board
the vessel" be stricken out.

The defense, to abbreviate proceedings, admitted that the receptacles mentioned as Exhibits A,
B, and C, contained opium and were found on board the steamship Erroll, a vessel of English
nationality, and that it was true that the defendant stated that these sacks of opium were his and
that he had them in his possession.

According to the testimony of the internal-revenue agent, the defendant stated to him, in the
presence of the provincial fiscal, of a Chinese interpreter (who afterwards was not needed,
because the defendant spoke English), the warden of the jail, and four guards, that the opium
seized in the vessel had been bought by him in Hongkong, at three pesos for each round can
and five pesos for each one of the others, for the purpose of selling it, as contraband, in Mexico
and Puerto de Vera Cruz; that on the 15th the vessel arrived at Cebu, and on the same day he
sold opium; that he had tried to sell opium for P16 a can; that he had a contract to sell an
amount of the value of about P500; that the opium found in the room of the other two Chinamen
prosecuted in another cause, was his, and that he had left it in their stateroom to avoid its being
found in his room, which had already been searched many times; and that, according to the
defendant, the contents of the large sack was 80 cans of opium, and of the small one, 49, and
the total number, 129.

It was established that the steamship Erroll was of English nationality, that it came from
Hongkong, and that it was bound for Mexico, via the call ports of Manila and Cebu.

The defense moved for a dismissal of the case, on the grounds that the court had no jurisdiction
to try the same and the facts concerned therein did not constitute a crime. The fiscal, at the
conclusion of his argument, asked that the maximum penalty of the law be imposed upon the
defendant, in view of the considerable amount of opium seized. The court ruled that it did not
lack jurisdiction, inasmuch as the crime had been committed within its district, on the wharf of
Cebu.

The court sentenced the defendant to five years' imprisonment, to pay a fine of P10,000, with
additional subsidiary imprisonment in case of insolvency, though not to exceed one third of the
principal penalty, and to the payment of the costs. It further ordered the confiscation, in favor of
the Insular Government, of the exhibits presented in the case, and that, in the event of an
appeal being taken or a bond given, or when the sentenced should have been served, the
defendant be not released from custody, but turned over to the customs authorities for the
purpose of the fulfillment of the existing laws on immigration.

From this judgment, the defendant appealed to this court.lawphi1.net

The appeal having been heard, together with the allegations made therein by the parties, it is
found: That, although the mere possession of a thing of prohibited use in these Islands, aboard
a foreign vessel in transit, in any of their ports, does not, as a general rule, constitute a crime
triable by the courts of this country, on account of such vessel being considered as an extension
of its own nationality, the same rule does not apply when the article, whose use is prohibited
within the Philippine Islands, in the present case a can of opium, is landed from the vessel upon
Philippine soil, thus committing an open violation of the laws of the land, with respect to which,
as it is a violation of the penal law in force at the place of the commission of the crime, only the
court established in that said place itself had competent jurisdiction, in the absence of an
agreement under an international treaty.

It is also found: That, even admitting that the quantity of the drug seized, the subject matter of
the present case, was considerable, it does not appear that, on such account, the two penalties
fixed by the law on the subject, should be imposed in the maximum degree.

Therefore, reducing the imprisonment and the fine imposed to six months and P1,000,
respectively, we affirm in all other respects the judgment appealed from, with the costs of this
instance against the appellant. So ordered.

Torres, Mapa, Johnson, Carson, Moreland and Trent, JJ., concur.

G.R. No. L-18924             October 19, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant,

vs.
WONG CHENG (alias WONG CHUN), defendant-appellee.

Attorney-General Villa-Real for appellant.

Eduardo Gutierrez Repide for appellee.

ROMUALDEZ, J.:

In this appeal the Attorney-General urges the revocation of the order of the Court of First
Instance of Manila, sustaining the demurrer presented by the defendant to the information that
initiated this case and in which the appellee is accused of having illegally smoked opium,
aboard the merchant vessel Changsa of English nationality while said vessel was anchored in
Manila Bay two and a half miles from the shores of the city.

The demurrer alleged lack of jurisdiction on the part of the lower court, which so held and
dismissed the case.

The question that presents itself for our consideration is whether such ruling is erroneous or not;
and it will or will not be erroneous according as said court has or has no jurisdiction over said
offense.

The point at issue is whether the courts of the Philippines have jurisdiction over crime, like the
one herein involved, committed aboard merchant vessels anchored in our jurisdiction
waters. 1awph!l.net

There are two fundamental rules on this particular matter in connection with International Law;
to wit, the French rule, according to which crimes committed aboard a foreign merchant vessels
should not be prosecuted in the courts of the country within whose territorial jurisdiction they
were committed, unless their commission affects the peace and security of the territory; and the
English rule, based on the territorial principle and followed in the United States, according to
which, crimes perpetrated under such circumstances are in general triable in the courts of the
country within territory they were committed. Of this two rules, it is the last one that obtains in
this jurisdiction, because at present the theories and jurisprudence prevailing in the United
States on this matter are authority in the Philippines which is now a territory of the United
States.

In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch [U. S.], 116), Chief
Justice Marshall said:

. . . When merchant vessels enter for the purposes of trade, it would be obviously
inconvenient and dangerous to society, and would subject the laws to continual
infraction, and the government to degradation, if such individuals or merchants did not
owe temporary and local allegiance, and were not amenable to the jurisdiction of the
country. . . .

In United States vs. Bull (15 Phil., 7), this court held:

 . . . No court of the Philippine Islands had jurisdiction over an offense or crime committed
on the high seas or within the territorial waters of any other country, but when she came
within three miles of a line drawn from the headlands, which embrace the entrance to
Manila Bay, she was within territorial waters, and a new set of principles became
applicable. (Wheaton, International Law [Dana ed.], p. 255, note 105; Bonfils, Le Droit
Int., secs. 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then
subject to the jurisdiction of the territorial sovereign subject to such limitations as have
been conceded by that sovereignty through the proper political agency. . . .

It is true that in certain cases the comity of nations is observed, as in Mali and Wildenhus vs.
Keeper of the Common Jail (120 U.., 1), wherein it was said that:

. . . The principle which governs the whole matter is this: Disorder which disturb only the
peace of the ship or those on board are to be dealt with exclusively by the sovereignty of
the home of the ship, but those which disturb the public peace may be suppressed, and,
if need be, the offenders punished by the proper authorities of the local jurisdiction. It
may not be easy at all times to determine which of the two jurisdictions a particular act of
disorder belongs. Much will undoubtedly depend on the attending circumstances of the
particular case, but all must concede that felonious homicide is a subject for the local
jurisdiction, and that if the proper authorities are proceeding with the case in the regular
way the consul has no right to interfere to prevent it.

Hence in United States vs. Look Chaw (18 Phil., 573), this court held that:

Although the mere possession of an article of prohibited use in the Philippine Islands,
aboard a foreign vessel in transit in any local port, does not, as a general rule, constitute
a crime triable by the courts of the Islands, such vessels being considered as an
extension of its own nationality, the same rule does not apply when the article, the use of
which is prohibited in the Islands, is landed from the vessels upon Philippine soil; in such
a case an open violation of the laws of the land is committed with respect to which, as it
is a violation of the penal law in force at the place of the commission of the crime, no
court other than that established in the said place has jurisdiction of the offense, in the
absence of an agreement under an international treaty.

As to whether the United States has ever consented by treaty or otherwise to renouncing such
jurisdiction or a part thereof, we find nothing to this effect so far as England is concerned, to
which nation the ship where the crime in question was committed belongs. Besides, in his work
"Treaties, Conventions, etc.," volume 1, page 625, Malloy says the following:

There shall be between the territories of the United States of America, and all the
territories of His Britanic Majesty in Europe, a reciprocal liberty of commerce. The
inhabitants of the two countries, respectively, shall have liberty freely and securely to
come with their ships and cargoes to all such places, ports and rivers, in the territories
aforesaid, to which other foreigners are permitted to come, to enter into the same, and to
remain and reside in any parts of the said territories, respectively; also to hire and
occupy houses and warehouses for the purposes of their commerce; and, generally, the
merchants and traders of each nation respectively shall enjoy the most complete
protection and security for their commerce, but subject always to the laws and statutes
of the two countries, respectively. (Art. 1, Commerce and Navigation Convention.)
We have seen that the mere possession of opium aboard a foreign vessel in transit was held by
this court not triable by or courts, because it being the primary object of our Opium Law to
protect the inhabitants of the Philippines against the disastrous effects entailed by the use of
this drug, its mere possession in such a ship, without being used in our territory, does not being
about in the said territory those effects that our statute contemplates avoiding. Hence such a
mere possession is not considered a disturbance of the public order.

But to smoke opium within our territorial limits, even though aboard a foreign merchant ship, is
certainly a breach of the public order here established, because it causes such drug to produce
its pernicious effects within our territory. It seriously contravenes the purpose that our
Legislature has in mind in enacting the aforesaid repressive statute. Moreover, as the Attorney-
General aptly observes:

. . . The idea of a person smoking opium securely on board a foreign vessel at anchor in
the port of Manila in open defiance of the local authorities, who are impotent to lay hands
on him, is simply subversive of public order. It requires no unusual stretch of the
imagination to conceive that a foreign ship may come into the port of Manila and allow or
solicit Chinese residents to smoke opium on board.

The order appealed from is revoked and the cause ordered remanded to the court of origin for
further proceedings in accordance with law, without special findings as to costs. So ordered.

Araullo, C.J., Street, Malcolm, Avanceña, Villamor, Ostrand and Johns, JJ., concur.
G.R. No. L-496 December 31, 1902

THE UNITED STATES, complainant-appellant,

vs.
WILLIAM FOWLER, ET AL., defendants-appellees.

Assistant Attorney-General Constantino, for appellant.

William Lane O'Neill, for appellees.

TORRES, J.:

The two defendants have been accused of the theft of sixteen bottles of champagne of the
value of $20, on the 12th August, 1901, while on board the transport Lawton, then navigating
the high seas, which said bottles of champagne formed part of the cargo of the said vessel and
were the property of Julian Lindsay, and which were taken lucri causa, and with the intent to
appropriate the same, without violence or intimidation, and without the consent of the owner,
against the statute in the case made and provided.

The accused having been brought before the court, the prosecuting attorney being present on
behalf of the Government, counsel for the defendants presented a demurrer, alleging that the
Court of First Instance was without jurisdiction to try the crime charged, inasmuch as it
appeared from the information that the crime was committed on the high seas, and not in the
city of Manila, or within the territory comprising the Bay of Manila, or upon the seas within the 3-
mile limit to which the jurisdiction of the court extends, and asked, upon these grounds, that the
case be dismissed.

This contention was opposed by the prosecuting attorney, who alleged that the court has
original jurisdiction in all criminal cases in which the penalty exceeds six month's imprisonment,
or a fine of over $100; that, in accordance with the orders of the Military Governor and the Civil
Commission admiralty jurisdiction over all crimes committed on board vessel flying the flag of
the United States has been vested in the Court of First Instance of the city of Manila. Among
other laws and orders he cited the order of August 14, 1898, and Acts Nos. 76 and 186 of the
United States Civil Commission. He argued that the President of the United States had
unquestionable authority to authorize the commanding general and the Civil Commission to
establish a judicial system with authority to take cognizance of maritime and admiralty causes,
citing a decision of the Supreme Court of the United States in support of this doctrine, which
was applicable to this Archipelago, which is now analogous to the status of some of the States
of the Union during the Mexican war and the war of secession.

The judge, however, by an order of the 14th of September, 1901, held that the court was without
jurisdiction to try the accused for the theft alleged to have been committed on the high seas,
sustained the demurrer, and ordered the discharge of the defendants, with the costs to the
Government. Against this order the prosecuting attorney appealed, and the case was brought
before this court.

This case deals with a theft committed on board a transport while navigating the high seas. Act
No. 136 of the organic law, as well as Act No. 186 passed by the Civil Commission, and which
repealed the former law, Act No. 76, do not expressly confer jurisdiction or authority upon this
court to take cognizance of all crimes committed on board vessels on the high seas. While the
provisions of the law are clear and precise with respect to civil admiralty or maritime cases, this
is not true with respect to criminal cases. If any doubt could arise concerning the true meaning
of the law applicable to the case, Act No. 400 effectively dissipates such doubts.

This law, which is an addition to Act No. 136, by which the courts of justice of the Philippine
Islands were organized, in article 1 adds to article 56, consisting of seven paragraphs, another
paragraph numbered 8, which reads as follows: "Of all crimes and offenses committed on the
high seas or beyond the jurisdiction of any country, or within any of the navigable waters of the
Philippine Archipelago, on board a ship or water craft of any kind registered or licensed in the
Philippine Islands in accordance with the laws thereof." The purpose of this law was to define
the jurisdiction of the courts of First Instance in criminal cases for crimes committed on board
vessels registered or licensed in the Philippine Islands. The transport Lawton not being a vessel
of this class, our courts are without jurisdiction to take cognizance of a crime committed on
board the same.

Upon these grounds we consider that the order appealed should be affirmed, with the costs de
oficio. So ordered.
G.R. No. L-1960            November 26, 1948

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FLORENTINO ABILONG, defendant-appellant.

Carlos Perfecto for appellant.

Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Manuel Tomacruz for appellee.

MONTEMAYOR, J.:

Florentino Abilong was charged in the Court of First Instance of Manila with evasion of service
of sentence under the following information:

That on or about the 17th day of September, 1947, in the City of Manila, Philippines, the
said accused, being then a convict sentenced and ordered to serve two (2) years, four
(4) months and one (1) day of destierro during which he should not enter any place
within the radius of 100 kilometers from the City of Manila, by virtue of final judgment
rendered by the municipal court on April 5, 1946, in criminal case No. B-4795 for
attempted robbery, did then and there wilfully, unlawfully and feloniously evade the
service of said sentence by going beyond the limits made against him and commit
vagrancy.

Contrary to law.

Upon arraignment he pleaded guilty and was sentenced to two (2) years, four (4) months and
one (1) day of prision correccional, with the accessory penalties of the law and to pay the costs.
He is appealing from that decision with the following assignment of error:

1. The lower court erred in imposing a penalty on the accused under article 157 of the
Revised Penal Code, which does not cover evasion of service of "destierro."

Counsel for the appellant contends that a person like the accused evading a sentence
of destierro is not criminally liable under the provisions of the Revised Penal Code, particularly
article 157 of the said Code for the reason that said article 157 refers only to persons who are
imprisoned in a penal institution and completely deprived of their liberty. He bases his
contention on the word "imprisonment" used in the English text of said article which in part
reads as follows:

Evasion of service of sentence. — The penalty of prision correccional in its medium and
maximum periods shall be imposed upon any convict who shall evade service of his
sentence by escaping during the term of his imprisonment by reason of final judgment.

The Solicitor General in his brief says that had the original text of the Revised Penal Code been
in the English language, then the theory of the appellant could be uphold. However, it is the
Spanish text that is controlling in case of doubt. The Spanish text of article 157 in part reads
thus:
 ART. 157. Quebrantamiento de sentencia. — Sera castigado con prision correccional en
sus grados medio y maximo el sentenciado que quebrantare su condena, fugandose
mientras estuviere sufriendo privacion de libertad por sentencia firme; . . . .

We agree with the Solicitor General that inasmuch as the Revised Penal Code was originally
approved and enacted in Spanish, the Spanish text governs (People vs. Manaba, 58 Phil., 665,
668). It is clear that the word "imprisonment" used in the English text is a wrong or erroneous
translation of the phrase "sufriendo privacion de libertad" used in the Spanish text. It is equally
clear that although the Solicitor General impliedly admits destierro as not constituting
imprisonment, it is a deprivation of liberty, though partial, in the sense that as in the present
case, the appellant by his sentence of destierro was deprived of the liberty to enter the City of
Manila. This view has been adopted in the case of People vs. Samonte, No. 36559 (July 26,
1932; 57 Phil., 968) wherein this Court held, as quoted in the brief of the Solicitor General that
"it is clear that a person under sentence of destierro is suffering deprivation of his liberty and
escapes from the restrictions of the penalty when he enters the prohibited area." Said ruling in
that case was ratified by this Court, though, indirectly in the case of People vs. Jose de Jesus,
(45 Off. Gaz. Supp. to No. 9, p. 370)1, where it was held that one evades the service of his
sentence of destierro when he enters the prohibited area specified in the judgment of
conviction, and he cannot invoke the provisions of the Indeterminate Sentence Law which
provides that its provisions do not apply to those who shall have escaped from confinement or
evaded sentence.

In conclusion we find and hold that the appellant is guilty of evasion of service of sentence
under article 157 of the Revised Penal Code (Spanish text), in that during the period of his
sentence of destierro by virtue of final judgment wherein he was prohibited from entering the
City of Manila, he entered said City.

Finding no reversible error in the decision appealed from, the same is hereby affirmed with
costs against the appellant. So ordered.

Moran, C. J., Paras, Feria, Pablo, Bengzon and Tuason, JJ., concur.

Separate Opinions

PERFECTO, J., dissenting:

The legal question raised in this case is whether or not appellant, for having violated his
judgment of destierro rendered by the Municipal Court of Manila, can be sentenced under
article 157 of the Revised Penal Code which reads as follows:

Evasion of service of sentence. — The penalty of prision correccional in its medium and
maximum periods shall be imposed upon any convict who shall evade service of his
sentence by escaping during the term of his imprisonment by reason of final judgment.
However, if such evasion or escape shall have taken place by means of unlawful entry,
by breaking doors, windows, gates, walls, roofs, or floors, or by using picklocks, false
keys, disguise, deceit, violence or intimidation, or through connivance with other convicts
 or employees of the penal institution, the penalty shall be prision correccional in its
maximum period.

Appellant invokes in his favor the negative opinion of author Guillermo Guevara (Revised Penal
Code, 1946, p. 322). This negative position is supported by another author, Ambrosio Padilla
(Revised Penal Code annotated, p. 474).

The prosecution invokes the decision of this Court in People vs. De Jesus, L-1411,2promulgated
April 16, 1948, but said decision has no application because in said case the legal question
involved in the case at bar was not raised. The Supreme Court did not consider the question of
interpretation of the wording of article 157. Undoubtedly, there was occasion for considering the
question, but the Court nevertheless failed to do so. This failure to see the question, at the time,
is only an evidence that the tribunal is composed of human beings for whom infallibility is
beyond reach.

The prosecution maintains that appellant's contention, supported by two authors who have
considered the question, although tenable under the English text of article 157, is not so under
the Spanish text, which is the one controlling because the Revised Penal Code was originally
enacted by the Legislature in Spanish.

There is no quarrel, therefore, that under the above quoted English text, the appellant is entitled
to acquittal. The question now is whether or not the Spanish text conveys a thing different from
that which can be read in the English text. The Spanish text reads as follows:

ART. 157. Quebrantamiento de sentencia. — Sera castigado con prision correccional en

sus grados medio y maximo el sentenciado que quebrantare su condena, fugandose
mientras estuviere sufriendo privacion de libertad por sentencia firme; pero si la evasion
o fuga se hubiere llevado a efecto con escalamiento, fractura de puertas, ventanas,
verjas, paredes, techos o suelos, o empleado ganzuas, llaves falsas, disfraz, engano,
violencia o intimidacion, o poniendose de acuerdo con otros sentenciados o
dependientes del establecimiento donde a hallare recluido la pena sera prision
correccional en su grado maximo.

The question boils down to the words "fugandose mientras estuviere sufriendo privacion de
libertad por sentencia firme," which are translated into English "by escaping during the term of
his imprisonment by reason of final judgment." The prosecution contends that the words
"privacion de libertad" in the Spanish text is not the same as the word "imprisonment" in the
English text, and that while "imprisonment" cannot include destierro, "privacion de libertad" may
include it.

The reason is, however, the result of a partial point of view because it obliterates the
grammatical, logical, ideological function of the words "fugandose" and "by escaping" in the
Spanish and English texts, respectively. There should not be any question that, whatever
meaning we may want to give to the words "privacion de libertad," it has to be conditioned by
the verb "fugandose," (by escaping). "Privacion de libertad" cannot be considered independently
of "fugandose."

There seems to be no question that the Spanish "fugandose" is correctly translated into the
English "by escaping." Now, is there any sense in escaping from destierro or banishment, where
there is no enclosure binding the hypothetical fugitive? "Fugandose" is one of the forms of the
Spanish verb "fugar," to escape. The specific idea of "evasion" or "escape" is reiterated by the
use of said words after the semi-colon in the Spanish text and after the first period in the English
text. Either the verb "to escape" or the substantive noun "escape" essentially pre-supposes
some kind of imprisonment or confinement, except figuratively, and Article 157 does not talk in
metaphors or parables.

"To escape" means "to get away, as by flight or other conscious effort; to break away, get free,
or get clear, from or out of detention, danger, discomfort, or the like; as to escape from prison.
To issue from confinement or enclosure of any sort; as gas escapes from the mains."
(Webster's New International Dictionary.)

"Escape" means "act of escaping, or fact or having escaped; evasion of or deliverance from
injury or any evil; also the means of escape. The unlawful departure of a prisoner from the limits
of his custody. When the prisoner gets out of prison and unlawfully regains his liberty, it is an
actual escape." (Webster's New International Dictionary.)

"Evasion" means "escape." (Webster's New International Dictionary.) .

The "destierro" imposed on appellant banished him from Manila alone, and he was free to stay
in all the remaining parts of the country, and to go and stay in any part of the globe outside the
country. With freedom to move all over the world, it is farfetched to allege that he is in any
confinement from which he could escape.

The words "privacion de libertad" have been correctly translated into the English
"imprisonment," which gives the idea exactly conveyed by "privacion de libertad" in the Spanish
text. Undoubtedly, the drafters of the latter could have had used a more precise Spanish word,
but the literary error cannot be taken as a pretext to give to the less precise words a broader
meaning than is usually given to them.

"Privacion de libertad," literally meaning "deprivation of liberty or freedom," has always been
used by jurist using the Spanish language to mean "imprisonment." They have never given
them the unbounded philosophical scope that would lead to irretrievable absurdities.

Under that unlimited scope, no single individual in the more than two billion inhabitants of the
world can be considered free, as the freest citizen of the freest country is subject to many
limitations or deprivations of liberty. Under the prosecution's theory, should an accused,
sentenced to pay a fine of one peso, evade the payment of it, because the fine deprives him of
liberty to dispose of his one peso, he will be liable to be punished under article 157 of the
Revised Penal Code to imprisonment of from more that two years to six years. The iniquity and
cruelty of such situation are too glaring and violent to be entertained for a moment under our
constitutional framework.

There is no gainsaying the proposition that to allow the violation of a sentence

of destierro without punishment is undesirable, but even without applying article 157 of the
Revised Penal Code, the act of the appellant cannot remain unpunished, because his violation
of the sentence of destierro may be punished as contempt of court, for which imprisonment up
to six months is provided.

It is deplorable that article 157 should not provide for a situation presented in this case, but the
gap cannot be filled by this Court without encroaching upon the legislative powers of Congress.
Perhaps it is better that evasions of sentence be punished, as provided by the old Penal Code,
by an increased in the evaded penalty. This will be more reasonable that the penalties provided
by article 157, which appear to be disproportionate and arbitrary, because they place on equal
footing the evader of a sentence of one day of imprisonment and a life-termer, one who commits
an insignificant offense and one who perpetrates the most heinous crime. At any rate, this is a
problem for Congress to solve.

The appealed decision should be set aside.

BRIONES, J., concurring:
G.R. No. 217874

OPHELIA HERNAN, Petitioner,
vs.
THE HONORABLE SANDIGANBAYAN,, Respondent

DECISION

PERALTA, J.:

Before the Court is a special civil action for certiorari under Rule 65 of the Rules of Court
seeking to reverse and set aside the Resolution1 dated February 2, 2015 and Decision2 dated
November 13, 2009 of the Sandiganbayan 2nd Division which affirmed, with modification, the
Decision dated June 28, 2002 of the Regional Trial Court (RTC), Branch 7, Baguio City
convicting petitioner of the crime of malversation of public funds in Criminal Case No. 15722-R.

The antecedent facts are as follows:

In October 1982, petitioner Ophelia Hernan joined the Department of Transportation and
Communication (DOTC), Cordillera Administrative Region (CAR) in Baguio City wherein she
served as an accounting clerk. In September 1984, she was promoted to the position of
Supervising Fiscal Clerk by virtue of which she was designated as cashier, disbursement and
collection officer.3 As such, petitioner received cash and other collections from customers and
clients for the payment of telegraphic transfers, toll foes, and special message fees. The
collections she received were deposited at the bank account of the DOTC at the Land Bank of
the Philippines (LBP), Baguio City Branch.4

On December 17, 1996, Maria Imelda Lopez, an auditor of the Commission on

Audit (COA), conducted a cash examination of the accounts handled by petitioner as instructed
by her superior, Sherelyn Narag. As a result, Lopez came across deposit slips dated September
19, 1996 and November 29, 1996 bearing the amounts of ₱11,300.00 and ₱81,348.20,
rcspectively.5 Upon close scrutiny, she noticed that said deposit slips did not bear a stamp of
receipt by the LBP nor was it machine validated. Suspicious about what she found, she and
Narag verified all the reports and other documents turned-over to them by petitioner.6 On the
basis of said findings, Narag sent a letter to the LBP to confirm the remittances made by
petitioner. After adding all the deposits made and upon checking with the teller's blotter,
Nadelline Orallo, the resident auditor of LBP, found that no deposits were made by petitioner for
the account of DOTC on September 19, 1996 for the amount of ₱11,300.00 and November 29,
1996 for the amount of ₱81,340.20.7

Thereafter, the LBP's officer-in-charge, Rebecca R. Sanchez, instructed the bank's teller,
Catalina Ngaosi, to conduct their own independent inquiry. It was discovered that on September
19, 1996, the only deposit in favor of the DOTC was that made by its Ifugao office in the Lagawe
branch of the LBP.8 This prompted Lopez to write to petitioner informing her that the two (2)
aforesaid remittances were not acknowledged by the bank. The auditors then found that
petitioner duly accounted for the ₱81,348.20 remittance but not for the ₱11,300.00. Dissatisfied
with petitioner's explanation as to the whereabouts of the said remittance, Narag reported the
matter to the COA Regional Director who, in turn wrote to the LBP for confirmation. The LBP
then denied receiving any ₱11,300.00 deposit on September 19, 1996 from petitioner for the
account of the DOTC.9 Thus, the COA demanded that she pay the said amount. Petitioner,
however, refused. Consequently, the COA filed a complaint for malversation of public funds
against petitioner with the Office of the Ombudsman for Luzon which, after due investigation,
recommended her indictment for the loss of ₱11,300.00.10 Accordingly, petitioner was charged
before the RTC of Baguio City in an Information, the accusatory portion of which reads:

That on or about September 16, 1996, or sometime prior or subsequent thereto, in the City of
Baguio, Philippines, and within the jurisdiction of this Honourable Court, the above-named
accused, a public officer, being then the Disbursing Officer of the Department of Transportation
and Communications, Baguio City, and as such an accountable officer, entrusted with and
responsible for the amount of ₱1 1,300.00 which accused received and collected for the DOTC,
and intended for deposit under the account of DOTC with the Land Bank of the Philippines-
Baguio City, by reason of her position, while in the performance of her official functions, taking
advantage of her position, did then and there, wilfully, feloniously, and unlawfully misappropriate
or consent, or through abandonment or negligence, permit other persons to take such amount
of ₱11,300.00 to the damage and prejudice of the government.

CONTRARY TO LAW.11

Upon arraignment on July 31, 1998, petitioner pleaded not guilty to the offense charged. Hence,
trial on the merits ensued.

To establish its case, the prosecution presented the testimonies of two (2) COA auditors,
namely, Maria Lopez and Sherelyn Narag as well as three (3) LBP employees, namely,
Rebecca Sanchez, Catalina Ngaosi, and Nadelline Orallo.12 In response, the defense presented
the lone testimony of petitioner, which can be summarized as follows:

On September 19, 1996, petitioner and her supervisor, Cecilia Paraiso, went to the LBP Baguio
branch and personally deposited the exact amount of ₱11,300.00 with accomplished deposit
slips in six (6) copies.13 Since there were many clients who came ahead of her, she decided to
go with her usual arrangement of leaving the money with the teller and telling her that she would
just come back to retrieve the deposit slip. Thus, she handed the money to Teller No. 2, whom
she identified as Catalina Ngaosi. Upon her return at around 3 o'clock in the afternoon, she
retrieved four (4) copies of the deposit slip from Ngaosi. She noticed that the same had no
acknowledgment mark on it. Being contented with the initials of the teller on the deposit slips,
she returned to her office and kept them in her vault. It was only during the cash count
conducted by auditor Lopez when she found out that the said amount was not remitted to the
account of the LBP. When demand was made on her to return the amount, she requested that
she be allowed to pay only after investigation of a complaint of Estafa that she would file with
the National Bureau of Investigation against some personnel of the bank, particularly Catalina
Ngaosi.14 The complaint, however, was eventually dismissed.15

After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged in the
Information. The dispositive portion of the decision states:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered convicting accused
Ophelia Hernan of Malversation and hereby sentences her, after applying the Indeterminate
Sentence Law, to suffer imprisonment from 7 years, 4 months, and 1 day of prision
mayor medium period, as minimum, to 11 years, 6 months and 21 days of prision mayor as
maximum period to reclusion temporal maximum period, as maximum, and to pay a fine of
₱11,300.00.

Accused Ophelia Hernan is further sentenced to suffer the penalty of perpetual special
disqualification.

Likewise, accused Ophelia Hernan is hereby ordered to pay back to the government the amount
of ₱11,300.00 plus legal interest thereon at the rate of 12% per annum to be computed from the
date of the filing of the Information up to the time the same is actually paid.

Costs against the accused.

SO ORDERED.16

Erroneously, petitioner appealed to the Court of Appeals (CA), which affirmed her conviction but
modified the penalty imposed. Upon motion, however, the CA set aside its decision on the
finding that it has no appellate jurisdiction over the case. Instead, it is the Sandiganbayan which
has exclusive appellate jurisdiction over petitioner occupying a position lower than Salary Grade
27.17 Petitioner's new counsel, Atty. Leticia Gutierrez Hayes-Allen, then appealed the case to
the Sandiganbayan. In a Decision dated November 13, 2009, the Sandiganbayan affirmed the
RTC's judgment of conviction but modified the penalty imposed, the dispositive opinion of which
reads:

WHEREFORE, in view of all the foregoing, the appealed decision is hereby AFFIRMED, with
the modifications that the indeterminate penalty to be imposed on the accused should be from 6
years and 1 day of prision mayor as minimum, to 11 years, 6 months, and 21 days of prision
mayor as maximum, together with the accessory penalties under Article 42 of the Revised Penal
Code, and that interest of only 6% shall be imposed on the amount of ₱11,300.00 to be restored
by the accused.

SO ORDERED.18

Petitioner filed a Motion for Reconsideration dated December 21, 2009 alleging that during the
trial before the RTC, her counsel was unable to elicit many facts which would show her
innocence. Said counsel principally failed to present certain witnesses and documents that
would supposedly acquit her from the crime charged. The Sandiganbayan, however, denied the
motion in a Resolution dated August 31, 2010 on the ground that evidence not formally offered
before the court below cannot be considered on appeal.19

On June 26, 2013, the Resolution denying petitioner's Motion for Reconsideration became final
and executory and was recorded in the Book of Entries of Judgments.20 On July 26, 2013,
petitioner's new counsel, Atty. Meshack Macwes, filed an Urgent Motion to Reopen the Case
with Leave of Court and with Prayer to Stay the Execution.21 In a Resolution22 dated December
4, 2013, however, the Sandiganbayan denied the motion and directed the execution of the
judgment of conviction. It noted the absence of the following requisites for the reopening of a
case: (1) the reopening must be before finality of a judgment of conviction; (2) the order is
issued by the judge on his own initiative or upon motion; (3) the order is issued only after a
hearing is conducted; (4) the order intends to prevent a miscarriage of justice; and (5) the
presentation of additional and/or further evidence should be terminated within thirty (30) days
from the issuance of the order.23
Unfazed, petitioner filed on January 9, 2014 a Petition for Reconsideration with Prayer for
Recall of Entry of Judgment in lieu of the Prayer for Stay of Execution of Judgment praying for a
reconsideration of the Sandiganbayan' s recent Resolution, that the case be reopened for
further reception of evidence, and the recall of the Entry of Judgment dated June 26, 2013.24 In
a Resolution dated February 2, 2015, the Sandiganbayan denied the petition for lack of merit.
According to the said court, the motion is clearly a third motion for reconsideration, which is a
prohibited pleading under the Rules of Court. Also, the grounds raised therein were merely a
rehash of those raised in the two previous motions. The claims that the accused could not
contact her counsel on whom she merely relied on for appropriate remedies to be filed on her
behalf, and that she has additional evidence to present, were already thoroughly discussed in
the August 31, 2010 and December 4, 2013 Resolutions. Moreover, the cases relied upon by
petitioner are not on point.25

On May 14, 2015, petitioner filed the instant petition invoking the following arguments:

I.

THE SANDIGANBA YAN GRAVELY ERRED AS IT ACTED WITH GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN CONCLUDING
THAT THE MOTION TO REOPEN WAS FILED OUT OF TIME CONSIDERING TI-IE
EXTRAORDINARY AND EXCEPTIONAL CIRCUMSTANCES SURROUNDING THE CASE.

II.

THE SANDIGANBA YAN GRAVELY ERRED AS IT ACTED WITH GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING THAT
THE EVIDENCE INTENDED TO BE PRESENTED BY PETITIONER SHOULD HER MOTTON
FOR REOPENING BE GRANTED, WAS PASSED UPON BY THE TRIAL COURT.

III.

THE SANDIGANBA YAN GRAVELY ERRED AS IT ACTED WITH GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN PRONOUNCING
THAT THE MOTION TO REOPEN AND THE PETITION FOR RECONSIDERATION FILED BY
PETITIONER ARE CONSIDERED AS THE SECOND AND THIRD MOTIONS TO THE DENIAL
OF THE DECISION.

Petitioner posits that her counsel, Atty. Hayes-Allen, never received the August 31, 2010
Resolution of the Sandiganbayan denying her Motion for Reconsideration. This is because
notice thereof was erroneously sent to said counsel's previous office at Poblacion, La Trinidad,
Benguet, despite the fact that it was specifically indicated in the Motion for Reconsideration that
the new office is at the Public Attorney's Office of Tayug, Pangasinan, following her counsel's
appointment as public attorney. Thus, since her counsel was not properly notified of the subject
resolution, the entry of judgment is premature.26 In support of her assertion, she cites Our ruling
in People v. Chavez,27 wherein We held that an entry of judgment without receipt of the
resolution is premature.

Petitioner also claims that during trial, she could not obtain the necessary evidence for her
defense due to the fact that the odds were against her. Because of this, she asks the Court to
relax the strict application of the rules and consider remanding the case to the lower court for
further reception of evidence.28 In particular, petitioner seeks the reception of an affidavit of a
certain John L. Ziganay, an accountant at the Depaiiment of Science and
Technology (DOST), who previously worked at the DOTC and COA, as well as two (2) deposit
slips. According to petitioner, these pieces of evidence would show that the ₱11,300.00
deposited at the Lagawe branch of the LBP was actually the deposit made by petitioner and not
by a certain Lanie Cabacungan, as the prosecution suggests. This is because the ₱11,300.00
deposit made by Cabacungan consists of two (2) different amounts, which, if proper accounting
procedure is followed, shall be recorded in the bank statement as two (2) separate amounts and
not their total sum of ₱11,300.00.29 Thus, the Sandiganbayan's denial of petitioner's motion to
reopen the case is capricious, despotic, and whimsical since the admission of her additional
evidence will prevent a miscarriage.

Finally, petitioner denies the Sandiganbayan's ruling that her motion to reopen and petition for
reconsideration are considered as a second and third motion for reconsideration, and are thus,
prohibited pleadings. This is because the additional evidence she seeks to introduce were not
available during the trial of her case.

The petition is devoid of merit.

At the outset, the Court notes that as pointed out by respondent Office of the Special
Prosecutor, petitioner's resort to a petition for certiorari under Rule 65 of the Rules of Court is an
improper remedy. In determining the appropriate remedy or remedies available, a party
aggrieved by a cou1i order, resolution or decision must first correctly identify the nature of the
order, resolution or decision he intends to assail.30 It bears stressing that the extraordinary
remedy of certiorari can be availed of only if there is no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law.31 If the Order or Resolution sought to be
assailed is in the nature of a final order, the remedy of the aggrieved party would be to file a
petition for review on certiorari under Rule 45 of the Rules of Court. Otherwise, the appropriate
remedy would be to file a petition for certiorari under Rule 65.32 Petitioner, in the instant case,
seeks to assail the Sandiganbayan's Resolutions dated December 4, 2013 and February 2,
2015 wherein said court denied her motion to reopen the malversation case against her. Said
resolutions are clearly final orders that dispose the proceedings completely. The instant petition
for certiorari under Rule 65 is, therefore, improper.

Even if We assume the propriety of petitioner's chosen action, the Court still cannot grant the
reliefs she prays for, specifically: (1) the reversal of the Sandiganbayan's December 4, 2013
and February 2, 2015 Resolutions denying her motion to reopen and petition for
reconsideration; (2) the reopening of the case for further reception of evidence; and (3) the
recall of the Entry of Judgment dated June 26, 2013.33

First of all, there is no merit in petitioner's claim that since her counsel was not properly notified
of the August 31, 2010 Resolution as notice thereof was erroneously sent to her old office
address, the entry of judgment is premature. As the Court sees it, petitioner has no one but
herself to blame. Time and again, the Court has held that in the absence of a proper and
adequate notice to the court of a change of address, the service of the order or resolution of a
court upon the parties must be made at the last address of their counsel on record.34 It is the
duty of the party and his counsel to device a system for the receipt of mail intended for them,
just as it is the duty of the counsel to inform the court officially of a change in his address.35 If
counsel moves to another address without informing the court of that change, such omission or
neglect is inexcusable and will not stay the finality of the decision. The court cannot be expected
to take judicial notice of the new address of a lawyer who has moved or to ascertain on its own
whether or not the counsel of record has been changed and who the new counsel could
possibly be or where he probably resides or holds office.36

Here, it is undisputed that petitioner's counsel failed to inform the court of the change in her
office address from Poblacion, La Trinidad, Benguet, to the Public Attorney's Office in Tayug,
Pangasinan. The fact that said new address was indicated in petitioner's Motion for
Reconsideration does not suffice as "proper and adequate notice" to the court. As previously
stated, courts cannot be expected to take notice of every single time the counsel of a party
changes address. Besides, it must be noted that petitioner even expressly admitted having
received the subject resolution "sometime in September or October 2010."37 Easily, she could
have informed her counsel of the same. As respondent posits, it is not as if petitioner had no
knowledge of the whereabouts of her counsel considering that at the time of the filing of her
Motion for Reconsideration, said counsel was already with the PA0.38 Moreover, the Court
cannot permit petitioner's reliance on the Chavez case because there, petitioner did not receive
the resolution of the Court of Appeals through no fault or negligence on his paii.39 Here,
however, petitioner's non-receipt of the subject resolution was mainly attributable not only to her
counsel's negligence but hers, as well. Thus, the Court deems it necessary to remind litigants,
who are represented by counsel, that they should not expect that all they need to do is sit back,
relax and await the outcome of their case. They should give the necessary assistance to their
counsel for what is at stake is their interest in the case. It is, therefore, their responsibility to
check the status of their case from time to time.40

To recall, petitioner, on December 21, 2009, filed her Motion for Reconsideration seeking a
reversal of the Sandiganbayan's November 13, 2009 Decision which affirmed the RTC's ruling
convicting her of the crime of malversation. In a Resolution dated August 31, 2010, the
Sandiganbayan denied petitioner's Motion for Reconsideration. Said resolution became final in
the absence of any pleading filed thereafter, and hence, was recorded in the Book of Entries of
Judgments on June 26, 2013. Subsequently, on July 12, 2013, petitioner, through her new
counsel, filed an Urgent Motion to Reopen the Case with Leave of Court and with Prayer to
Stay the Execution, which was denied through the Sandiganbayan's Resolution dated
December 4, 2013.41 Undeterred, petitioner filed her Petition for Reconsideration with Prayer for
Recall of Entry of Judgment in lieu of the Prayer for the Stay of Execution of Judgement on
January 9, 2014 which was likewise denied in the Sandiganbayan's February 2, 2015
Resolution.

It seems, therefore, that petitioner waited almost an entire three (3) year period from the denial
of her Motion for Reconsideration to act upon the malversation case against her through the
filing of her urgent motion to reopen. In fact, her filing of said motion may very well be prompted
only by her realization that the case has finally concluded by reason of the entry of judgment.
Stated otherwise, the Court is under the impression that had she not heard of the recording of
the August 31, 2010 Resolution in the Book of Entries of Judgments on June 26, 2013,
petitioner would not even have inquired about the status of her case. As respondent puts it, the
urgent motion to reopen appears to have been filed as a substitute for the lost remedy of an
appeal via a petition for review on certiorari before the Court.42 On this inexcusable negligence
alone, the Court finds sufficient basis to deny the instant petition.

Second of all, petitioner's claim that the Sandiganbayan's denial of her motion to reopen the
case is capricious, despotic, and whimsical since the admission of her additional evidence will
prevent a miscarriage has no legal nor factual leg to stand on. Section 24, Rule 119 and existing
jurisprudence provide for the following requirements for the reopening a case: (l) the reopening
must be before the finality of a judgment of conviction; (2) the order is issued by the judge on his
own initiative or upon motion; (3) the order is issued only after a hearing is conducted; (4) the
order intends to prevent a miscarriage of justice; and (5) the presentation of additional and/or
further evidence should be terminated within thirty days from the issuance of the order.43

But as the Sandiganbayan ruled, the absence of the first requisite that the reopening must be
before the finality of a judgment of conviction already cripples the motion.1âwphi1 The records
of the case clearly reveal that the August 3l, 2010 Resolution of the Sandiganbayan denying
petitioner's Motion for Reconsideration had already become final and executory and, in fact,
was already recorded in the Entry Book of Judgments on June 26, 2013. Moreover, petitioner's
supposed predicament about her former counsel failing to present witnesses and documents
should have been advanced before the trial court.44 It is the trial court, and neither the
Sandiganbayan nor the Court, which receives evidence and rules over exhibits formally
offered.45 Thus, it was, indeed, too late in the day to advance additional allegations for petitioner
had all the opportunity to do so in the lower court. An appellate court will generally not disturb
the trial court's assessment of factual matters except only when it clearly overlooked certain
facts or where the evidence fails to substantiate the lower court's findings or when the disputed
decision is based on a misapprehension of facts.46

Ultimately, it bears stressing that the Court does not find that the Sandiganbayan acted in a
capricious, despotic, or whimsical manner when it denied petitioner's motion to reopen
especially in view of the fact that the rulings it seeks to refute are legally sound and
appropriately based on the evidences presented by the parties. On this score, the elements of
malversation of public funds under Article 217 of the Revised Penal Code (RPC) are: (1) that
the offender is a public officer; (2) that he had the custody or control of funds or property by
reason of the duties of his office; (3) that those funds or property were public funds or prope1iy
for which he was accountable; and (4) that he appropriated, took, misappropriated or consented
or, through abandonment or negligence, permitted another person to take them. This article
establishes a presumption that when a public officer fails to have duly forthcoming any public
funds with which he is chargeable, upon demand by any duly authorized officer, it shall
be prima facie evidence that he has put such missing funds to personal uses.47

As duly found by the trial court, and affinned by the Sandiganbayan, petitioner's defense that
she, together with her supervisor Cecilia Paraiso, went to the LBP and handed the subject
₱11,300.00 deposit to the teller Ngaosi and, thereafter, had no idea as to where the money
went failed to overcome the presumption of law. For one, Paraiso was never presented to
corroborate her version. For another, when questioned about the subject deposit, not only did
petitioner fail to make the same readily available, she also could not satisfactorily explain its
whereabouts. Indeed, in the crime of malversation, all that is necessary for conviction is
sufficient proof that the accountable officer had received public funds, that she did not have
them in her possession when demand therefor was made, and that she could not satisfactorily
explain her failure to do so.48 Thus, even if it is assumed that it was somebody else who
misappropriated the said amount, petitioner may still be held liable for malversation. The Comi
quotes, with approval, the trial court's ruling, viz.:

Even if the claim of Hernan, i.e., that she actually left the amount of ₱11,300.00 and the
corresponding deposit slip with the Bank Teller Ngaosi and she came back to retrieve the
deposit slip later, is to be believed and then it came out that the said ₱11,300.00 was not
credited to the account of DOTC with the Land Bank and was in fact missing, still
accused Hernan should be convicted of malversation because in this latter situation she
permits through her inexcusable negligence another person to take the money. And this
is still malversation under Article 217.49

Said ruling was, in fact, duly reiterated by the Sandiganbayan in its Decision, thus:

Shifting our gaze to the possibility that it was the bank teller Catalina Ngaosi who
misappropriated the amount and should therefore be held liable, as the accused would want to
poltray, the Court doubts the tenability of that position. As consistently ruled by jurisprudence, a
public officer may be held liable for malversation even if he does not use public property or
funds under his custody for his personal benefit, but consents to the taking thereof by another
person, or, through abandonment or negligence, permitted such taking. The accused, by her
negligence, simply created the opportunity for the misappropriation. Even her
justification that her deposits which were not machine-validated were nonetheless
acknowledged by the bank cannot fortify her defense. On the contrary, it all the more
emphasizes her propensity for negligence each time that she accepted deposit slips
which were not machinevalidated, her only proof of receipt of her deposits. 50

In view of the foregoing, the Court agrees with the Sandiganbayan's finding that petitioner's
motion to reopen and petition for reconsideration are practically second and third motions for
reconsideration from its Decision dated November 13, 2009. Under the rules, the motions are
already prohibited pleadings under Section 5, Rule 37 of the Rules of Court due to the fact that
the grounds raised in the petition for reconsideration are merely a rehash of those raised in the
two (2) previous motions filed before it. These grounds were already thoroughly discussed by
the Sandiganbayan in its subject resolutions. Hence, as duly noted by the Sandiganbayan, in
the law of pleading, courts are called upon to pierce the form and go into the substance, not to
be misled by a false or wrong name given to a pleading because the title thereof is not
controlling and the court should be guided by its averments.51 Thus, the fact that the pleadings
filed by petitioner are entitled Urgent Motion to Reopen the Case with Leave of Court and with
Prayer to Stay Execution and Petition for Reconsideration with Prayer for Recall of Entry of
Judgment in lieu of the Prayer for Stay of Execution of Judgment does not exempt them from
the application of the rules on prohibited pleadings.

Let it be remembered that the doctrine of finality of judgment is grounded on the fundamental
principle of public policy and sound practice that, at the risk of occasional error, the judgment of
courts and the award of quasi-judicial agencies must become final on some definite date fixed
by law. The only exceptions to the general rule are the correction of clerical errors, the so-
called nunc pro tune entries which cause no prejudice to any party, void judgments, and
whenever circumstances transpire after the finality of the decision which render its execution
unjust and inequitable.52 None of the exceptions is present in this case.

Indeed, every litigation must come to an end once a judgment becomes final, executory and
unappealable. Just as a losing party has the right to file an appeal within the prescribed period,
the winning party also has the correlative right to enjoy the finality of the resolution of his case
by the execution and satisfaction of the judgment, which is the "life of the law." To frustrate it by
dilatory schemes on the part of the losing party is to frustrate all the efforts, time and
expenditure of the courts. It is in the interest of justice that this Court should write finis to this
litigation.53
The foregoing notwithstanding, the Court finds that it is still necessary to reopen the instant case
and recall the Entry of Judgment dated June 26, 2013 of the Sandiganbayan, not for further
reception of evidence, however, as petitioner prays for, but in order to modify the penalty
imposed by said court. The general rule is that a judgment that has acquired finality becomes
immutable and unalterable, and may no longer be modified in any respect even if the
modification is meant to correct erroneous conclusions of fact or law and whether it will be made
by the court that rendered it or by the highest court of the land.54 When, however, circumstances
transpire after the finality of the decision rendering its execution unjust and inequitable, the
Court may sit en bane and give due regard to such exceptional circumstance warranting the
relaxation of the doctrine of immutability. The same is in line with Section 3(c),55 Rule II of the
Internal Rules of the Supreme Court, which provides that cases raising novel questions of law
are acted upon by the Court en bane. To the Court, the recent passage of Republic
Act (R.A.) No. 10951 entitled An Act Adjusting the Amount or the Value of Property and
Damage on which a Penalty is Based and the Fines Imposed Under the Revised Penal Code
Amending for the Purpose Act No. 3815 Otherwise Known as the "Revised Penal Code" as
Amended which accordingly reduced the penalty applicable to the crime charged herein is an
example of such exceptional circumstance. Section 40 of said Act provides:

SEC. 40. Article 217 of the same Act, as amended by Republic Act. No. 1060, is hereby further
amended to read as follows:

ART. 217. Malversation of public funds or property; Presumption of malversation. - Any public

officer who, by reason of the duties of his office, is accountable for public funds or property,
shall appropriate the same, or shall take or misappropriate or shall consent, through
abandonment or negligence, shall permit any other person to take such public funds, or
property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation
of such funds or property, shall suffer:

1. The penalty of pnswn correccional in its medium and maximum periods, if the amount
involved in the misappropriation or malversation docs not exceed Forty thousand pesos
(₱40,000.00).

xxxx

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value
of the property embezzled.

Pursuant to the aforequoted provision, therefore, We have here a novel situation wherein the
judgment convicting the accused, petitioner herein, has already become final and executory and
yet the penalty imposed thereon has been reduced by virtue of the passage of said law.
Because of this, not only must petitioner's sentence be modified respecting the settled rule on
the retroactive effectivity of laws, the sentencing being favorable to the accused,56 she may
even apply for probation,57 as long as she does not possess any ground for disqualification,58 in
view of recent legislation on probation, or R.A. No. 10707 entitled An Act Amending Presidential
Decree No. 968, otherwise known as the "Probation Law of 1976," As Amended. allowing an
accused to apply for probation in the event that she is sentenced to serve a maximum term of
imprisonment of not more than six (6) years when a judgment of conviction imposing a non-
probationable penalty is appealed or reviewed, and such judgment is modified through the
imposition of a probationable penalty.59
Thus, in order to effectively avoid any injustice that petitioner may suffer as well as a possible
multiplicity of suits arising therefrom, the Court deems it proper to reopen the instant case and
recall the Entry of Judgment dated June 26, 2013 of the Sandiganbayan, which imposed the
penalty of six (6) years and one (1) day of prision mayor, as minimum, to eleven (11) years, six
(6) months, and twenty-one (21) days of prision mayor, as maximum. Instead, since the amount
involved herein is ₱11,300.00, which does not exceed ₱40,000.00, the new penalty that should
be imposed is prision correccional in its medium and maximum periods, which has a prison term
of two (2) years, four (4) months, and one (1) day, to six (6) years. The Court, however, takes
note of the presence of the mitigating circumstance of voluntary surrender appreciated by the
Sandiganbayan in favor of petitioner.60 Hence, taking into consideration the absence of any
aggravating circumstance and the presence of one (1) mitigating circumstance, the range of the
penalty that must be imposed as the maximum term should be prision correccional medium
to prision correccional maximum in its minimum period, or from two (2) years, four (4) months,
and one (1) day, to three (3) years, six (6) months, and twenty (20) days, in accordance with
Article 6461 of the RPC. Applying the Indeterminate Sentence Law, the range of the minimum
term that should be imposed upon petitioners is anywhere within the period of arresto
mayor, maximum to prision correccional minimum with a range of four (4) months and one (1)
day to two (2) years and four (4) months. Accordingly, petitioner is sentenced to suffer the
indeterminate penalty of six (6) months of arresto mayor, as minimum, to three (3) years, six (6)
months, and twenty (20) days prision correccional, as maximum.

On a final note, judges, public prosecutors, public attorneys, private counsels, and such other
officers of the law are hereby advised to similarly apply the provisions of RA No. 10951
whenever it is, by reason of justice and equity, called for by the facts of each case. Hence, said
recent legislation shall find application in cases where the imposable penalties of the affected
crimes such as theft, qualified theft, estafa, robbery with force upon things, malicious mischief,
malversation, and such other crimes, the penalty of which is dependent upon the value of the
object in consideration thereof, have been reduced, as in the case at hand, taking into
consideration the presence of existing circumstances attending its commission. For as long as it
is favorable to the accused, said recent legislation shall find application regardless of whether its
effectivity comes after the time when the judgment of conviction is rendered and even if service
of sentence has already begun. The accused, in these applicable instances, shall be entitled to
the benefits of the new law warranting him to serve a lesser sentence, or to his release, if he
has already begun serving his previous sentence, and said service already accomplishes the
term of the modified sentence. In the latter case, moreover, the Court, in the interest of justice
and expediency, further directs the appropriate filing of an action before the Court that seeks the
reopening of the case rather than an original petition filed for a similar purpose.

Indeed, when exceptional circumstances exist, such as the passage of the instant amendatory
law imposing penalties more lenient and favorable to the accused, the Court shall not hesitate to
direct the reopening of a final and immutable judgment, the objective of which is to correct not
so much the findings of guilt but the applicable penalties to be imposed.

Henceforth: (1) the Directors of the National Penitentiary and Correctional Institution for Women
are hereby ordered to determine if there are accused serving final sentences similarly situated
as the accused in this particular case and if there are, to coordinate and communicate with the
Public Attorney's Office and the latter, to represent and file the necessary pleading before this
Court in behalf of these convicted accused in light of this Court's pronouncement; (2) For those
cases where the accused are undergoing preventive imprisonment, either the cases against
them are non-bailable or cannot put up the bail in view of the penalties imposable under the old
law, their respective counsels are hereby ordered to file the necessary pleading before the
proper courts, whether undergoing trial in the RTC or undergoing appeal in the appellate courts
and apply for bail, for their provisional liberty; (3) For those cases where the accused are
undergoing preventive imprisonment pending trial or appeal, their respective counsels are
hereby ordered to file the necessary pleading if the accused have already served the minimum
sentence of the crime charged against them based on the penalties imposable under the new
law, R.A. No. 10951, for their immediate release in accordance with A.M. No. 12-11-2-SC or
the Guidelines For Decongesting Holding Jails By Enforcing The Rights Of Accused Persons To
Bail And To Speedy Trial; 62 and (4) Lastly, all courts, including appellate courts, are hereby
ordered to give priority to those cases covered by R.A. No. 10951 to avoid any prolonged
imprisonment.

WHEREFORE, premises considered, the instant petition is DENIED. The Resolution dated

February 2, 2015 and Decision dated November 13, 2009 of the Sandiganbayan 2nd Division
are AFFIRMED with MODIFICATION. Petitioner is hereby sentenced to suffer the indeterminate
penalty of six (6) months of arresto mayor, as minimum term, to three (3) years, six (6) months,
and twenty (20) days prision correccional, as maximum term.

Let copies of this Decision be furnished to the Office of the Court Administrator (OCA) for
dissemination to the First and Second Level courts, and also to the Presiding Justices of the
appellate courts, the Department of Justice, Office of the Solicitor General, Public Attorney's
Office, Prosecutor General's Office, the Directors of the National Penitentiary and Correctional
Institution for Women, and the Integrated Bar of the Philippines for their information, guidance,
and appropriate action.

Likewise, let the Office of the President, the Senate of the Philippines, and the House of
Representatives, be furnished copies of this Decision for their information.

SO ORDERED.
G.R. No. L-3246            November 29, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ABELARDO FORMIGONES, defendant-appellant.

Luis Contreras for appellant.

Office of the Solicitor General Felix Bautista Angelo and Solicitor Felix V. Makasiar for appellee.

MONTEMAYOR, J.:

This is an appeal from the decision of the Court of First Instance of Camarines Sur finding the
appellant guilty of parricide and sentencing him to reclusion perpetua, to indemnify the heirs of
the deceased in the amount of P2,000, and to pay the costs. The following facts are not
disputed.

In the month of November, 1946, the defendant Abelardo Formigones was living on his farm in
Bahao, Libmanan, municipality of Sipocot, Camarines Sur, with his wife, Julia Agricola, and his
five children. From there they went to live in the house of his half-brother, Zacarias Formigones,
in the barrio of Binahian of the same municipality of Sipocot, to find employment as harvesters
of palay. After about a month's stay or rather on December 28, 1946, late in the afternoon, Julia
was sitting at the head of the stairs of the house. The accused, without any previous quarrel or
provocation whatsoever, took his bolo from the wall of the house and stabbed his wife, Julia, in
the back, the blade penetrating the right lung and causing a severe hemorrhage resulting in her
death not long thereafter. The blow sent Julia toppling down the stairs to the ground,
immediately followed by her husband Abelardo who, taking her up in his arms, carried her up
the house, laid her on the floor of the living room and then lay down beside her. In this position
he was found by the people who came in response to the shouts for help made by his eldest
daughter, Irene Formigones, who witnessed and testified to the stabbing of her mother by her
father.

Investigated by the Constabulary, defendant Abelardo signed a written statement, Exhibit D,

wherein he admitted that he killed The motive was admittedly of jealousy because according to
his statement he used to have quarrels with his wife for the reason that he often saw her in the
company of his brother Zacarias; that he suspected that the two were maintaining illicit relations
because he noticed that his had become indifferent to him (defendant).

During the preliminary investigation conducted by the justice of the peace of Sipocot, the
accused pleaded guilty, as shown by Exhibit E. At the trial of the case in the Court of First
Instance, the defendant entered a plea of not guilty, but did not testify. His counsel presented
the testimony of two guards of the provincial jail where Abelardo was confined to the effect that
his conduct there was rather strange and that he behaved like an insane person; that
sometimes he would remove his clothes and go stark naked in the presence of his fellow
prisoners; that at times he would remain silent and indifferent to his surroundings; that he would
refused to take a bath and wash his clothes until forced by the prison authorities; and that
sometimes he would sing in chorus with his fellow prisoners, or even alone by himself without
being asked; and that once when the door of his cell was opened, he suddenly darted from
inside into the prison compound apparently in an attempt to regain his liberty.
The appeal is based merely on the theory that the appellant is an imbecile and therefore exempt
from criminal liability under article 12 of the Revised Penal Code. The trial court rejected this
same theory and we are inclined to agree with the lower court. According to the very witness of
the defendant, Dr. Francisco Gomez, who examined him, it was his opinion that Abelardo was
suffering only from feeblemindedness and not imbecility and that he could distinguish right from
wrong.

In order that a person could be regarded as an imbecile within the meaning of article 12 of the
Revised Penal Code so as to be exempt from criminal liability, he must be deprived completely
of reason or discernment and freedom of the will at the time of committing the crime. The
provisions of article 12 of the Revised Penal Code are copied from and based on paragraph 1,
article 8, of the old Penal Code of Spain. Consequently, the decisions of the Supreme Court of
Spain interpreting and applying said provisions are pertinent and applicable. We quote Judge
Guillermo Guevara on his Commentaries on the Revised Penal Code, 4th Edition, pages 42 to
43:

The Supreme Court of Spain held that in order that this exempting circumstances may
be taken into account, it is necessary that there be a complete deprivation of intelligence
in committing the act, that is, that the accused be deprived of reason; that there be no
responsibility for his own acts; that he acts without the least discernment;1 that there be
a complete absence of the power to discern, or that there be a total deprivation of
freedom of the will. For this reason, it was held that the imbecility or insanity at the time
of the commission of the act should absolutely deprive a person of intelligence or
freedom of will, because mere abnormality of his mental faculties does not exclude
imputability.2

The Supreme Court of Spain likewise held that deaf-muteness cannot be equaled to
imbecility or insanity.

The allegation of insanity or imbecility must be clearly proved. Without positive evidence
that the defendant had previously lost his reason or was demented, a few moments prior
to or during the perpetration of the crime, it will be presumed that he was in a normal
condition. Acts penalized by law are always reputed to be voluntary, and it is improper to
conclude that a person acted unconsciously, in order to relieve him from liability, on the
basis of his mental condition, unless his insanity and absence of will are proved.

As to the strange behaviour of the accused during his confinement, assuming that it was not
feigned to stimulate insanity, it may be attributed either to his being feebleminded or eccentric,
or to a morbid mental condition produced by remorse at having killed his wife. From the case of
United States vs. Vaquilar (27 Phil. 88), we quote the following syllabus:

Testimony of eye-witnesses to a parricide, which goes no further than to indicate that the
accused was moved by a wayward or hysterical burst of anger or passion, and other
testimony to the effect that, while in confinement awaiting trial, defendant acted
absentmindedly at times, is not sufficient to establish the defense of insanity. The
conduct of the defendant while in confinement appears to have been due to a morbid
mental condition produced by remorse.

After a careful study of the record, we are convinced that the appellant is not an imbecile.
According to the evidence, during his marriage of about 16 years, he has not done anything or
conducted himself in anyway so as to warrant an opinion that he was or is an imbecile. He
regularly and dutifully cultivated his farm, raised five children, and supported his family and even
maintained in school his children of school age, with the fruits of his work. Occasionally, as a
side line he made copra. And a man who could feel the pangs of jealousy to take violent
measure to the extent of killing his wife whom he suspected of being unfaithful to him, in the
belief that in doing so he was vindicating his honor, could hardly be regarded as an imbecile.
Whether or not his suspicions were justified, is of little or no import. The fact is that he believed
her faithless.

But to show that his feeling of jealousy had some color of justification and was not a mere
product of hallucination and aberrations of a disordered mind as that an imbecile or a lunatic,
there is evidence to the following effect. In addition to the observations made by appellant in his
written statement Exhibit D, it is said that when he and his wife first went to live in the house of
his half brother, Zacarias Formigones, the latter was living with his grandmother, and his house
was vacant. However, after the family of Abelardo was settled in the house, Zacarias not only
frequented said house but also used to sleep there nights. All this may have aroused and even
partly confirmed the suspicions of Abelardo, at least to his way of thinking.

The appellant has all the sympathies of the Court. He seems to be one of those unfortunate
beings, simple, and even feebleminded, whose faculties have not been fully developed. His
action in picking up the body of his wife after she fell down to the ground, dead, taking her
upstairs, laying her on the floor, and lying beside her for hours, shows his feeling of remorse at
having killed his loved one though he thought that she has betrayed him. Although he did not
exactly surrender to the authorities, still he made no effort to flee and compel the police to hunt
him down and arrest him. In his written statement he readily admitted that he killed his wife, and
at the trial he made no effort to deny or repudiate said written statement, thus saving the
government all the trouble and expense of catching him, and insuring his conviction.

Although the deceased was struck in the back, we are not prepared to find that the aggravating
circumstance of treachery attended the commission of the crime. It seems that the prosecution
was not intent or proving it. At least said aggravating circumstance was not alleged in the
complaint either in the justice of the peace court or in the Court of First Instance. We are
inclined to give him the benefit of the doubt and we therefore declined to find the existence of
this aggravating circumstance. On the other hand, the fact that the accused is feebleminded
warrants the finding in his favor of the mitigating circumstance provided for in either paragraph 8
or paragraph 9 of article 13 of the Revised Penal Code, namely that the accused is "suffering
some physical defect which thus restricts his means of action, defense, or communication with
his fellow beings," or such illness "as would diminish the exercise of his will power." To this we
may add the mitigating circumstance in paragraph 6 of the same article, — that of having acted
upon an impulse so powerful as naturally to have produced passion or obfuscation. The
accused evidently killed his wife in a fit of jealousy.

With the presence of two mitigating circumstances without any aggravating circumstance to
offset them, at first we thought of the possible applicability of the provisions of article 64,
paragraph 5 of the Revised Penal Code for the purpose of imposing the penalty next lower to
that prescribed by article 246 for parricide, which is reclusion perpetua to death. It will be
observed however, that article 64 refers to the application of penalties which contain three
periods whether it be a single divisible penalty or composed of three different penalties, each
one of which forms a period in accordance with the provisions of articles 76 and 77, which is not
true in the present case where the penalty applicable for parricide is composed only of two
indivisible penalties. On the other hand, article 63 of the same Code refers to the application of
indivisible penalties whether it be a single divisible penalty, or two indivisible penalties like that
of reclusion perpetua to death. It is therefore clear that article 63 is the one applicable in the
present case.

Paragraph 2, rule 3 of said article 63 provides that when the commission of the act is attended
by some mitigating circumstance and there is no aggravating circumstance, the lesser penalty
shall be applied. Interpreting a similar legal provision the Supreme Court in the case of United
States vs. Guevara (10 Phil. 37), involving the crime of parricide, in applying article 80,
paragraph 2 (rule 3 of the old Penal Code) which corresponds to article 63, paragraph 2 (rule 3
of the present Revised Penal Code), thru Chief Justice Arellano said the following:

And even though the court should take into consideration the presence of two mitigating
circumstances of a qualifying nature, which it can not afford to overlook, without any
aggravating one, the penalty could not be reduced to the next lower to that imposed by
law, because, according to a ruling of the court of Spain, article 80 above-mentioned
does not contain a precept similar to that contained in Rule 5 of article 81 (now Rule 5,
art. 64 of the Rev. Penal Code.) (Decision of September 30, 1879.)

Yet, in view of the excessive penalty imposed, the strict application of which is inevitable
and which, under the law, must be sustained, this court now resorts to the discretional
power conferred by paragraph 2 of article 2 of the Penal Code; and.

Therefore, we affirm the judgment appealed from with costs, and hereby order that a
proper petition be filed with the executive branch of the Government in order that the
latter, if it be deemed proper in the exercise of the prerogative vested in it by the
sovereign power, may reduce the penalty to that of the next lower.

Then, in the case of People vs. Castañeda (60 Phil. 604), another parricide case, the Supreme
Court in affirming the judgment of conviction sentencing defendant to reclusion perpetua, said
that notwithstanding the numerous mitigating circumstances found to exist, inasmuch as the
penalty for parricide as fixed by article 246 of the Revised Penal Code is composed of two
indivisible penalties, namely, reclusion perpetua to death, paragraph 3 of article 63 of the said
Code must be applied. The Court further observed:

We are likewise convinced that appellant did not have that malice nor has exhibited such
moral turpitude as requires life imprisonment, and therefore under the provisions of
article 5 of the Revised Penal Code, we respectfully invite the attention of the Chief
Executive to the case with a view to executive clemency after appellant has served an
appreciable amount of confinement.

In conclusion, we find the appellant guilty of parricide and we hereby affirm the judgment of the
lower court with the modification that the appellant will be credited with one-half of any
preventive imprisonment he has undergone. Appellant will pay costs.

Following the attitude adopted and the action taken by this same court in the two cases above
cited, and believing that the appellant is entitled to a lighter penalty, this case should be brought
to the attention of the Chief Executive who, in his discretion may reduce the penalty to that next
lower to reclusion perpetua to death or otherwise apply executive clemency in the manner he
sees fit.