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G.R. No.

L-2971

April 20, 1951

FELICIANO MANIEGO y CATU, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent. Llorente and Yumul for petitioner. Office of the Solicitor General Felix Bautista Angelo and Solicitor Augusto M. Luciano for respondent. BENGZON, J.: This petitioner was convicted, by the Fifth Division of the Court of Appeals, of a violation of article 210 of the Revised Penal Code. He pleads for acquittal, insisting upon purely legal points. The facts found by that appellate court are substantially the following: That on February 27, 1947, the accused, although appointed as a laborer, had been placed in charge of issuing summons and subpoenas for traffic violations in the Sala of Judge Crisanto Aragon of the Municipal Court of the City of Manila. It appears furthermore, from the testimony of Clerk of Court Baltazar and Fiscal De la Merced, then Deputy Fiscal attending to traffic violations, that the accused had been permitted to write motions for dismissal of prescribed traffic cases against offenders without counsel, and to submit them to the Court for action, without passing through the regular clerk. On the day in question, Felix Rabia, the complainant herein, appeared and inquired from the accused about a subpoena that he received. He was informed that it was in connection with a traffic violation for which said Rabia had been detained and given traffic summons by an American MP. The accused after a short conversation went to Fiscal De la Merced and informed the Fiscal that the case had already prescribed. The Fiscal having found such to be the case, instructed the accused that if the traffic violator had no lawyer, he could write the motion for dismissal and have it signed by the party concerned. This was done by the accused and after the signing by Felix Rabia the matter was submitted to the Court, which granted the petition for dismissal. According to Felix Rabia and Agent No. 19 (La forteza) of the National Bureau of Investigation, the accused informed Rabia that the latter was subject to a fine of P15; that Rabia inquired whether the same could be reduced because he had no money, and that the accused informed Rabia that he could fix the case if Rabia would pay him P10; which Rabia did and the accused pocketed. This charged was denied by the accused. The pertinent portion of article 210 of the Revised Penal Code reads: Any public officer who shall agree to perform an act constituting a crime, in connection with the performance of his official duties, in consideration of any offer, promise, gift or present received by such officer, personally or through the mediation of another, shall suffer the penalty of prision correccional in its minimum and medium periods and fine of not lees than the value to the penalty corresponding to the crime agreed upon if the same shall have been committed. If the gift was accepted by the officer in consideration of the execution of an act which does not constitute a crime, and the officer executed said act, he shall suffer the same penalty provided in the preceding paragraph. . . . As correctly indicated by counsel for petitioner the four essential elements of the offense are: (1) the the accused is a public officer within the scope of article 203 of the Revised Penal Code; (2) that the accused received by himself or thru another, some gift or present, offer or promise; (3) that such gift, present or promises has been given in consideration of his commission of some crime or any act not constituting a crime; (4) that the crime or act relates to the exercise of the functions of the public officer.

There can be no question that petitioner was a public officer within the meaning of article 203, which includes all persons "who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Philippine Government, or shall perform in said government or any of its branches, public duties as an employee, agent or subordinate official or any rank or class." That definition is quite comprehensive, embracing as it does, every public servant from the highest to the lowest. For the purposes of the Penal Code, it obliterates the standard distinction in the law of public officers between "officer" and "employee". Petitioner, however, contending that the Court of Appeals erred in regarding him as a public officer, expounded and discussed several grounds arranged under the following hearings: a. The doctrine of "the temporary performance of public functions by a laborer" should not apply in defendant's case. b. The overt act imputed on the accused does not constitute a circumstance by which he may be considered a public official. c. His appointment as laborer came from one source, while the designation and delimitation of the functions of his appointment came from another source. After having carefully considered the expository argumentation, we are unconvinced. The law is clear, and we perceive no valid reason to deny validity to the view entertained by the Spanish Supreme Court that, for the purposes of punishing bribery, the temporary performance of public functions is sufficient to constitute a person a public official. This opinion, it must be stated, was followed and applied by the Court of Appeals because the accused, although originally assigned to the preparation of summons and subpoenas, had been allowed in some instance to prepare motions for dismissal of traffic cases. And this Tribunal has practically concurred with the Spanish court when it opined1 that a laborer in the Bureau of Post temporarily detailed as filer of money orders was a public officer within the meaning of article 203 of the Revised Penal Code. Indeed, common sense indicates that the receipt of bribe money is just as pernicious when committed by temporary employees as when committed by permanent officials. The second essential element has likewise been proven. The Court of Appeals said this petitioner received ten pesos from Rabia (and pocketed the money) in consideration of his "fixing" Rabia's case, and thereafter he "fixed" it by filing a motion for dismissal, which was approved in due course. In connection with the last two elements of the offense, it should be stated that our pronouncements under the first sufficiently answer petitioner's propositions elaborated in several parts of his brief, revolving around the thesis that since he was a mere laborer by appointment he may not be convicted, because the preparation of motions for dismissal is not surely the official function of a laborer. Enough to recall that although originally appointed as a mere laborer, this defendant was on several occasions designated or given the work to prepare motions for dismissal. He was consequently temporarily discharging such public functions. And as in the performance thereof he accepted, even solicited, monetary reward, he certainly guilty as charged. Wherefore, there being no issue about the penalty imposed, the decision of the Court of Appeals is affirmed in toto. With costs. Paras, C.J., Feria, Pablo, Tuason, Montemayor, Jugo and Bautista Angelo, JJ., concur.

A.M. No. RTJ-02-1673

August 11, 2004

xxx The CHARGE filed against the accused is categorized as Mala en se (sic) which requires the indispensable presence of criminal intent/dolo. The felony on BIGAMY as defined and penalized by the Revised Penal Code explicitly mandates that it must be committed with criminal intent. In other words, there must be an unquestionable demonstration on the part of the perpetrator that he/she criminally, willfully and unlawfully contracted a second marriage despite knowledge that his/her first marriage is still existing. As borne out by the evidence adduced, the accused contracted the second marriage after she was informed and furnished of the Divorce Decree which was granted by the Family District Court of Harris County Texas in her favor. As an ordinary laywoman accused being a recipient of a divorce decree, she entertains the impression that she can contract a subsequent marriage which she did when she married the late Manuel Diego. To the honest evaluation of the Court the act complained of against the accused is not patently illegal for the reason that she acted in good faith believing that her marriage was already annulled by a foreign judgment.3 Complainant herein alleges that the decision rendered by the respondent Judge is manifestly against the law and contrary to the evidence. He questions the evidentiary weight and admissibility of the divorce decree as a basis for the finding of good faith. In addition, complainant stresses that the evidence on record negates respondent Judges finding of good faith on the part of the accused. Thus, complainant urges this Court to impose sanctions upon respondent Judge as, according to complainant, these acts amount to knowingly rendering an unjust judgment and/or gross ignorance of the law. In his comment, respondent Judge explains that what was in issue was the criminal culpability of the accused under Article 349 of the Revised Penal Code. Respondent Judge does not dispute that the second marriage was bigamous because at the time it was contracted, the first marriage was still subsisting since divorce is not recognized in our country and because the accuseds first husband was still alive. Respondent Judge, however, maintains that what was controlling was whether by virtue of the divorce decree the accused honestly believed, albeit mistakenly, that her first marriage had been severed and she could marry again. According to respondent Judge, the same is a state of mind personal to the accused. He further stressed that knowledge of the law should not be exacted strictly from the accused since she is a lay person, and that ineptitude should not be confused with criminal intent. By separate manifestations, both parties agreed to submit the case for resolution based on the pleadings. The Disputed Decision A careful study of the disputed decision reveals that respondent Judge had been less than circumspect in his study of the law and jurisprudence applicable to the bigamy case. In his comment, respondent Judge stated: "That the accused married Manuel P. Diego in the honest belief that she was free to do so by virtue of the decree of divorce is a mistake of fact."

EDUARDO P. DIEGO, complainant, vs. JUDGE SILVERIO Q. CASTILLO, REGIONAL TRIAL COURT, DAGUPAN CITY, BRANCH 43, respondent. DECISION AZCUNA, J.: This is an administrative complaint against Regional Trial Court Judge Silverio Q. Castillo for allegedly knowingly rendering an unjust judgment in a criminal case and/or rendering judgment in gross ignorance of the law. The facts and circumstances of the criminal case are summarized, as follows: a) On January 9, 1965, accused Lucena Escoto contracted marriage with Jorge de Perio, Jr., solemnized before then Mayor Liberato Reyna of Dagupan City. The couple were both Filipinos. In the marriage contract, the accused used and adopted the name Crescencia Escoto, with a civil status of single; b) In a document dated February 15, 1978, denominated as a "Decree of Divorce" and purportedly issued to Jorge de Perio as petitioner by the Family District Court of Harris County, Texas (247th Judicial District), it was "ordered, adjudged and decreed, that the bonds of matrimony heretofore existing between Jorge de Perio and Crescencia de Perio are hereby Dissolved, Cancelled and Annulled and the Petitioner is hereby granted a Divorce." c) Subsequently, on June 4, 1987, the same Crescencia Escoto contracted marriage with herein complainants brother, Manuel P. Diego, solemnized before the Rev. Fr. Clemente T. Godoy, parish priest of Dagupan City. The marriage contract shows that this time, the accused used and adopted the name Lucena Escoto, again, with a civil status of single.1 After trial of the criminal case for bigamy, respondent Judge promulgated a decision, on February 24, 1999, the dispositive part of which stated: WHEREFORE, for failure of the STATE to prove accuseds guilt beyond whisper of doubt, the COURT hereby orders her ACQUITTAL with costs de oficio. SO ORDERED.2 The decision states that the main basis for the acquittal was good faith on the part of the accused. Respondent Judge gave credence to the defense of the accused that she acted without any malicious intent. The combined testimonial and documentary evidence of the defense was aimed at convincing the court that accused Lucena Escoto had sufficient grounds to believe that her previous marriage to Jorge de Perio had been validly dissolved by the divorce decree and that she was legally free to contract the second marriage with Manuel P. Diego. In rendering the decision, respondent Judge reasoned, thus: While it is true that in our jurisdiction the matrimonial bond between Jorge de Perio and the accused are not yet annulled, it remains undisputed that cessation of the same was decreed in the Family District Court of Harris County, Texas, 247th Judicial District, effective February 15, 1978.

This Court, in People v. Bitdu,4 carefully distinguished between a mistake of fact, which could be a basis for the defense of good faith in a bigamy case, from a mistake of law, which does not excuse a person, even a lay person, from liability. Bitdu held that even if the accused, who had obtained a divorce under the Mohammedan custom, honestly believed that in contracting her second marriage she was not committing any violation of the law, and that she had no criminal intent, the same does not justify her act. This Court further stated therein that with respect to the contention that the accused acted in good faith in contracting the second marriage, believing that she had been validly divorced from her first husband, it is sufficient to say that everyone is presumed to know the law, and the fact that one does not know that his act constitutes a violation of the law does not exempt him from the consequences thereof.5 Moreover, squarely applicable to the criminal case for bigamy, is People v. Schneckenburger, 6 where it was held that the accused who secured a foreign divorce, and later remarried in the Philippines, in the belief that the foreign divorce was valid, is liable for bigamy. These findings notwithstanding, the issue before us is whether or not respondent Judge should be held administratively liable for knowingly rendering an unjust judgment and/or gross ignorance of the law. Knowingly Rendering an Unjust Judgment Knowingly rendering an unjust judgment is a criminal offense defined and penalized under Article 2047 of the Revised Penal Code. For conviction to lie, it must be proved that the judgment is unjust and that the judge knows that it is unjust. Knowingly means consciously, intelligently, willfully or intentionally. It is firmly established in this jurisdiction that for a judge to be held liable for knowingly rendering an unjust judgment, it must be shown that the judgment is unjust as it is contrary to law or is not supported by the evidence, and that the same was made with conscious and deliberate intent to do an injustice.8 The law requires that (a) the offender is a judge; (b) he renders a judgment in a case submitted to him for decision; (c) the judgment is unjust; (d) he knew that said judgment is unjust.9 This Court reiterates that in order to hold a judge liable, it must be shown that the judgment is unjust and that it was made with conscious and deliberate intent to do an injustice. That good faith is a defense to the charge of knowingly rendering an unjust judgment remains the law.10 As held in Alforte v. Santos,11 even assuming that a judge erred in acquitting an accused, she still cannot be administratively charged lacking the element of bad faith, malice or corrupt purpose. Malice or bad faith on the part of the judge in rendering an unjust decision must still be proved and failure on the part of the complainant to prove the same warrants the dismissal of the administrative complaint.12 There is, therefore, no basis for the charge of knowingly rendering an unjust judgment. Gross Ignorance of the Law Anent the charge of gross ignorance of the law, Maozca v. Domagas, is instructive. Therein respondent judge was charged with gross ignorance of the law resulting in a manifestly unjust judgment for granting a demurrer to the evidence in a bigamy case. The grant of the demurrer to the evidence was based on the judges finding of good faith on the part of the accused, anchored upon a document denominated as a "Separation of Property with Renunciation of Rights." This Court stated that said act of the judge exhibited ignorance of the law, and accordingly he was fined in the amount of P5,000. Also, in Guillermo v. Reyes, Jr.,14 where therein respondent judge was given a reprimand with a stern warning of a more severe penalty should the same or similar act be committed in the future, this Court explained:
13

We have heretofore ruled that a judge may not be held administratively accountable for every erroneous order or decision he renders. To unjustifiably hold otherwise, assuming that he has erred, would be nothing short of harassment and would make his position doubly unbearable, for no one called upon to try the facts or interpret the law in the process of administering justice can be infallible in his judgment. The error must be gross or patent, malicious, deliberate or in evident bad faith. It is only in this latter instance, when the judge acts fraudulently or with gross ignorance, that administrative sanctions are called for as an imperative duty of this Court. As a matter of public policy then, the acts of a judge in his official capacity are not subject to disciplinary action, even though such acts are erroneous. Good faith and absence of malice, corrupt motives or improper considerations are sufficient defenses in which a judge charged with ignorance of the law can find refuge. It does not mean, however, that a judge, given the leeway he is accorded in such cases, should not evince due care in the performance of his adjudicatory prerogatives. Furthermore, in Wingarts v. Mejia,15 where therein respondent judge, although absolved of any guilt for the charge of knowingly rendering an unjust judgment, was still imposed sanctions by this Court, thus: In any event, respondent judge deserves to be appropriately penalized for his regrettably erroneous action in connection with Criminal Case No. 2664 of his court. We have repeatedly stressed that a municipal trial judge occupies the forefront of the judicial arm that is closest in reach to the public he serves, and he must accordingly act at all times with great constancy and utmost probity. Any kind of failure in the discharge of this grave responsibility cannot be countenanced, in order to maintain the faith of the public in the judiciary, especially on the level of courts to which most of them resort for redress.16 Applying these precedents to the present case, the error committed by respondent Judge being gross and patent, the same constitutes ignorance of the law of a nature sufficient to warrant disciplinary action. Penalty After evaluation of the merits of the case, the Office of the Court Administrator (OCA) recommended that respondent Judge be reprimanded with a stern warning of a more severe penalty in the future. The act of respondent Judge in rendering the decision in question took place on February 24, 1999 or before the effectivity, on October 1, 2001, of A.M. No. 01-8-10-SC which classified gross ignorance of the law as a serious charge and penalized the offense with a fine of not less than P20,000 but not more than P40,000. Applying the rule as then prevailing,17 and in line with applicable jurisprudence,18 the sanction on respondent Judge should be a fine in the amount of P10,000. WHEREFORE, Regional Trial Court Judge Silverio Q. Castillo is hereby FINED in the amount of Ten Thousand Pesos (P10,000) with a STERN WARNING that a repetition of the same or similar acts will be dealt with more severely. SO ORDERED. Davide, Jr., C.J., (Chairman), Quisumbing, Ynares-Santiago, and Carpio, JJ., concur.

G.R. No. 7540 THE UNITED STATES, plaintiff-appellee, vs. VICENTE MENDOZA, defendant-appellant. Mauricio Ilagan and Fermin Mariano, for appellant. Attorney-General Villamor, for appellee. TORRES, J.: Appeal by the defendant from a judgment of conviction rendered in this case by the Honorable Julio Llorente, judge. About 8 o'clock in the evening of August 1, 1910, Bernabe Mangunay, mounted on a carabao, approached the house of Mateo del Rosario, situated in the barrio of Apulid, of the pueblo of Paniqui, Tarlac, to ask for something to eat. As he was then carrying a papaya firebrand and got too close to the house, the eaves thereof caught fire and its nipa roof immediately started to burn, a large part of it being consumed. Thereupon Silveria Marcoleta, wife of the owner of the house, Rosario, who was not in at the time but a neighbor's, called out for help and immediately left the house to escape from the fire, taking her two children and little brother with her. Owing to the prompt arrival of the husband and several neighbors, the fire was put out before it had burned the whole house. On the following day the owner of the house, Mateo del Rosario, reported the occurrence to Vicente Mendoza, the lieutenant of the aforesaid barrio, and accused Bernabe Mangunay of starting the fire. Mendoza thereupon ordered the junior lieutenant, Candido Yabut, to summon the accused. But when the latter appeared, said Mendoza took no action whatever, nor did he even report the facts to the proper higher authority, but, on the contrary, permitted the incendiary to return home. For the foregoing reasons, and in view of the preliminary investigations made by the justice of the peace of Paniqui, the provincial fiscal, on September 5, 1910, filed an information in the Court of First Instance of Tarlac, charging Vicente Mendoza as accessory after the fact in the crime of arson. After due trial, judgment was rendered on May 22, 1911, whereby the defendant was sentenced to the penalty of two years four months and one day of presidio correccional, to the accessories, with allowance of one-half of the time of his detention, and to payment of the costs; from which judgment he appealed. Had the accused barrio-lieutenant incurred responsibility by his conduct, he should have been charged with the crime of "prevaricacion" under article 355 of the Penal Code, for neglect of the duties of his office maliciously failing to move the prosecution and punishment of the delinquent. However, the present case was instituted through an information for concealment of crime, and as it has been proved that the alleged incendiary, Bernabe Mangunay, was acquitted for lack of evidence, by judgment rendered in Case No. 544 prosecuted against him in the same court of Tarlac, so it remains to be determined whether, notwithstanding the acquittal of the principal actor in the crime, said complaint for concealment can be maintained, and the alleged accessory after the fact convicted. The responsibility of the accessory after the fact is subordinate to that of the principal in a crime, because the accessory's participation therein is subsequent to its commission, and his guilt is very directly related to the principal delinquent in the punishable act; for if the facts alleged are not proven in the prosecution instituted, or do not constitute a crime, no legal grounds exists for convicting a defendant as an accessory after the fact of a crime not perpetrated or of parties not guilty. (U.S. vs. Abison, 3 Phil. Rep., 191.) In the case at bar there are indications that the fire was accidental and, if so, the acquittal of the accused in the other case was perhaps due to the lack of proof of his guilt as an incendiary and to the fact that the acts charged do not constitute a crime. Therefore, upon this hypothesis, and because the alleged

incendiary was acquitted, it is neither proper nor possible to convict the defendant, Mendoza, as accessory after the fact, of Bernabe Mangunay, who was acquitted of the said crime of arson. For the foregoing reasons, with reversal of the judgment appealed from, it is proper to acquit, as we do hereby, Vicente Mendoza, the lieutenant of the barrio of Apulid, Paniqui, with the costs of both instances de oficio. Arellano, C.J., Mapa, Johnson, Carson and Trent, JJ., concur. .

G.R. No. 156685

July 27, 2004

NAZARIO N. MARIFOSQUE, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION YNARES-SANTIAGO, J.: This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure which assails the decision dated September 23, 2002 and the Resolution dated January 3, 2003 of the Sandiganbayan in Criminal Case No. 17030 finding petitioner Nazario Marifosque guilty beyond reasonable doubt of the crime of direct bribery, defined and penalized under the second paragraph of Article 210 of the Revised Penal Code, as amended. Petitioner was charged with direct bribery in an Information which reads: That on or about October 13, 1990 in Legazpi City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused a public officer being a qualified member of the Police Force of Legazpi City, now under the Philippine National Police, taking advantage of his official/public position and committing the crime herein charged in relation to his office, did then and there willfully, unlawfully, and feloniously demand, obtain and/or receive directly from Yu Su Pong1 and Hian Hian Sy2 the total amount of FIVE THOUSAND EIGHT HUNDRED PESOS (P5,800.00) Philippine Currency in consideration for his recovery from alleged robbers, eighteen Shellane gas filled cylinder/s tanks, to the damage and prejudice of the aforementioned victims in the aforesaid amount. CONTRARY TO LAW.
3

By way of defense, petitioner Marifosque testified that in the morning of October 13, 1990, a police asset came to his house and reported that he witnessed a robbery at the gasoline station of Yu So Pong. Petitioner went to the gasoline station of Yu So Pong and relayed to him the information. Thereafter, petitioner and Yu So Pong proceeded to the police station to report the robbery to the desk officer, PFC Jesus Fernandez, who then dispatched petitioner and a certain Pat. Garcia to conduct an investigation. As they were leaving the police station, the asset approached petitioner asking if he could get P350.00 per cylinder tank as his reward. Petitioner relayed the message to Yu So Pong, who said he was amenable "if that [was] the only way to recover the cylinders and to apprehend the robbers."4 Based on information furnished by the asset, the police investigators proceeded to the house of Edgardo Arnaldo in San Roque Legazpi City, where they found the stolen gas tanks. The group loaded the gas tanks into the vehicle. Meanwhile, Arnaldo arrived. Petitioner did not arrest him at that time because he promised to lead them to the other stolen cylinder tanks.5 The group returned to the police station where petitioner made a written report of the recovery of the gas tanks. Elmer Arnaldo testified that he worked as an asset of the Legazpi City police force and occasionally received rewards from the police for any information of the criminal activities. On October 13, 1990 at around 4:00 in the morning, he went out to buy bread and saw three individuals stealing gas cylinder tanks in the nearby gasoline station. He later visited petitioner and reported to him the robbery. He went back to his house to feed the chickens. Sometime thereafter, he dropped by the police station to discuss with petitioner the reward of P350.00 per cylinder tank recovered. Petitioner gave him 1,000.00 and told him to return at 6:00 p.m. for the remainder. At 7:00 p.m., he and petitioner went to the store of Yu So Pong to collect the balance of the reward money. Petitioner went inside the store and Arnaldo, who was left outside, saw a woman giving him a folded newspaper. Suddenly, armed men apprehended the petitioner, so he ran away. On September 23, 2002, the Sandiganbayan rendered a decision convicting petitioner of direct bribery, the dispositive portion of which reads:6 WHEREFORE, in view of the foregoing and considering that the agreed act, which did not constitute a crime, was executed, judgment is hereby rendered finding the accused NAZARIO MARIFOSQUE Y NUEZ GUILTY beyond reasonable doubt of the crime of Direct Bribery, defined and penalized under the second paragraph of Art. 210 of the Revised Penal Code as amended. The accused is sentenced to an indeterminate penalty of imprisonment of 3 years 6 months and 5 days of Prision Correccional medium and maximum periods as the Minimum and 7 years, 8 months and 9 days of Prision Mayor minimum and medium periods as the Maximum considering that there is no mitigating nor aggravating circumstance and a fine in the amount of THREE THOUSAND PESOS (P3,000.00). The accused shall also suffer the penalty of special temporary disqualification. SO ORDERED.7 His motion for reconsideration having been denied, petitioner interposes the present appeal raising the following issues: I THE ACT OF PETITIONER RECEIPT OF THE SUMS OF MONEY FOR DELIVERY TO HIS ASSET DOES NOT CONSITUTE AN OFFENSE DEFINED AND PENALIZED UNDER SECOND PARAGRAPH OF ARTICLE 210 OF THE REVISED PENAL CODE, AS AMENDED.

The antecedent facts as culled from the records are as follows: On October 13, 1990 at around 5:00 in the afternoon, Hian Hian Yu Sy and her husband, Arsenio Sy, went to the office of Captain Alberto Salvo, Chief of the Intelligence and Operating Division stationed at the Criminal Investigation Service (CIS) in Region 5, to report the robbery of Shellane tanks at the gasoline station of her father, Yu So Pong, and the alleged extortion attempt by petitioner, Police Sergeant Narciso Marifosque, in exchange for the recovery of the lost items. Captain Salvo and his men set up a plan to entrap the petitioner. Hian Hian Yu Sy prepared the pay-off money in the amount of P4,800.00 and listed down the serial numbers of the bills. The pay-off was scheduled at 7:00 in the evening of that day in Golden Grace Department Store which was owned by Yu So Pong. At around 6:15 p.m., Captain Calvo and his men arrived at the target area and strategically positioned themselves outside the Golden Grace Department Store to await the arrival of the suspect. Shortly thereafter, petitioner Marifosque arrived on board a tricycle. He went inside the store and demanded the money from Hian Hian Yu Sy and Yu So Pong. The latter handed to him the marked money, which was wrapped in a newspaper. When petitioner stepped out of the store, Arsenio Sy gave the pre-arranged signal, whereupon the arresting operatives swooped down upon the suspect and arrested him. Hian Hian Yu Sy testified that petitioner demanded the amount of P7,200.00 but she bargained for P4,800.00 only because that was all she had at the time. She proposed that petitioner return the following morning to pick up the balance.

II THE HONORABLE SANDIGANBAYAN COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN FINDING THE PETITIONER GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF DIRECT BRIBERY. 8 In the first assigned error, petitioner contends that the testimonies of the prosecution witnesses do not demonstrate with certainty that the receipt of the alleged "bribe money" constitutes the act punishable by the offense as defined by the Revised Penal Code. He draws attention to the following findings of fact by the appellate court, namely: (1) that he was not the one who asked for reward from private complainant Yu So Pong but the asset; and (2) that Hian Hian Yu Sy had no direct knowledge of the alleged transaction, i.e., the demand for money in consideration of the return/recovery of twenty-one Shellane gas tanks, between private complainant Yu So Pong and the accused. In the second assigned error, petitioner argues that the prosecution failed to establish his guilt beyond reasonable doubt because there was no competent evidence to prove that the amount was really intended for him and not for his asset. He anchors his defense on the fact that: (1) he merely relayed to Yu So Pong the assets request for a reward money; and (2) Yu So Pong was agreeable to the request. He further contends that the act of receiving money for the asset is not one of those punishable under the law as direct bribery. Petitioner cannot feign innocence and profess good faith since all the indicia point to his guilt and malicious intent. First, petitioner did not introduce his asset or mention his name to Yu So Pong or his daughter at the time of the illegal transaction. His claim that he previously gave P1,000.00 to his asset, which purportedly represented a partial payment of the reward money, was not corroborated by his asset. When he was arrested and interrogated at Camp Ibalon, he made no attempt to present his asset to explain and justify his receipt of the reward money. Instead, he accepted his arrest and investigation with an air of resignation, which is characteristic of a culprit who is caught red-handed. Captain Calvo, one of the arresting CIS officers, testified that petitioner attempted to give back the money to Yu So Pong when they were about to arrest him.9 This was a clear showing that he was well aware of the illegality of his transaction. Had he been engaged in a legitimate deal, he would have faced courageously the arresting officers and indignantly protested the violation of his person, which is the normal reaction of an innocent man. Instead, he meekly submitted to the indignity of arrest and went along the eventual investigation with the docility of a man at a loss for a satisfactory explanation. Second, petitioners solicitous and overly eager conduct in pursuing the robbery incident betrays an intention not altogether altruistic. On the contrary, it denotes a corrupt desire on his part to obtain pecuniary benefits from an illegal transaction. At the time petitioner was notified by his asset of the robbery incident, he was no longer on duty, having been assigned to the night shift the day before. He was too overzealous to meet with Yu So Pong although the case was already assigned to another police investigator. His justification that he wanted to encourage the victim to pursue the case against the robbers rings hollow and untrue. It is clearly an afterthought. As shown in the testimony of prosecution witness Hian Hian Yu Sy, petitioner met with Yu So Pong for no apparent reason than to demand money. There was no mention of any attempt by him to investigate, much less encourage the victims to file charges against the malefactors. More telling is petitioners persistence in obtaining the monetary reward for the asset although the latter was no longer complaining about the P1,000.00 he supposedly received earlier, thus: Pros. Agcaoili:

Since the asset was not complaining at the time, you should not have gone back anymore to Yu So Pong? Accused Marifosque: Why would I not go back? My purpose was to encourage him to pursue the matter. If he would not pursue this matter, then we would be the laughing stock of the thieves we arrested and then we cannot charge them. Q. So Mr. Witness, you went to Yu So Pong after you received the P1,000.00 without any intention to receive additional amount for the asset, am I right? A: No, maam. That was not the purpose. In fact, Yu So Pong had told me earlier to see him again in order to prepare for the cash and to see if an additional amount would be needed for my asset.10 While petitioner supposedly supports the "reward system," yet he denied that he previously gave incentives to the assets for the recovery of stolen items, to wit: PJ: Sometimes you would ask for reward for your assets? A: I myself voluntarily give them a reward. Q: That is not the question. The question is, in the past when you would recover stolen articles, would you ask the owner of the articles to give some incentive or tip to your assets? A: That has not happened, your Honor. PJ: Next question. Pros. Agcaoili: And, in fact, Mr. Witness, you did not give any incentive to your asset on that incident that happened in the house of Yu So Pong which is the subject matter of this case? A. For that particular case alone, Mr. Yu so Pong gave me something and I gave it to my asset. xxx Pros. Agcaoili In fact, Mr. Witness, you said that these tips were just given as an incentive? xxx xxx

A I would be the one to give the incentives to my asset. But in that particular instance, the P1,000.00 which Mr. Yu So Pong gave me, I turned it over to my own asset. Q To your own assessment, Mr. Witness, is P1,000.00 not enough to serve as an incentive to your asset? A I do not know whether P1,000.00 is enough or not. The fact, is, that was the amount I got from Yu So Pong which I gave to my asset. PJ: Was the asset complaining that was not enough? A. No, Your Honor.11 Third, the conduct of the petitioner during the recovery of the stolen articles leaves much to be desired. He did not apprehend Edgardo Arnaldo or invite him for investigation although the cylinder tanks were found in his possession. His flimsy excuse that the latter promised to deliver additional cylinder tanks is unworthy of credence considering that, as a police officer with years of experience, he should have known that the proper action, under the circumstances, was to at least invite him to the police precinct for investigation. Curiously, the prime suspect Edgardo Arnaldo turned out to be the brother of petitioners police asset who, we recall, directed the police officers to the location of the stashed articles. This strange coincidence may well indicate a conspiracy between the petitioner and the thieves to steal from the victim and later cash in on the recovery of the lost items. In the final analysis, this case boils down to an issue of credibility. In this regard, the prosecution witnesses gave clear and straightforward testimonies. The Sandiganbayan did not err in giving full weight and credence to their version of the events. Petitioners conviction must be affirmed. The crime of direct bribery as defined in Article 210 of the Revised Penal Code consists of the following elements: (1) that the accused is a public officer; (2) that he received directly or through another some gift or present, offer or promise; (3) that such gift, present or promise has been given in consideration of his commission of some crime, or any act not constituting a crime, or to refrain from doing something which it is his official duty to do; and (4) that the crime or act relates to the exercise of his functions as a public officer. There is no question that petitioner was a public officer within the contemplation of Article 203 of the Revised Penal Code, which includes all persons "who, by direct provision of law, popular election or appointment by competent authority, shall take part in the performance of public functions in the Philippine Government, or shall perform in said government or any of its branches, public duties as an employee, agent or subordinate official or any rank or class." At the time of the incident, petitioner was a police sergeant assigned to the Legazpi City Police Station. He directly received the bribe money from Yu So Pong and his daughter Hian Hian Yu Sy in exchange for the recovery of the stolen cylinder tanks, which was an act not constituting a crime within the meaning of Article 210 of the Revised Penal Code. The act of receiving money was connected with his duty as a police officer. The instant case falls within the second paragraph of Article 210 of the Revised Penal Code, which is quoted hereunder:

Art. 210. Direct Bribery. Any public officer who shall agree to perform an act constituting a crime, in connection with the performance of his official duties, in consideration of any offer, promise, gift or present received by such officer, personally or through the mediation of another, shall suffer the penalty of prision mayor in its minimum and medium periods and a fine of not less than three times the value of the gift, in addition to the penalty corresponding to the crime agreed upon, if the same shall have been committed. If the gift was accepted by the officer in consideration of the execution of an act which does not constitute a crime, and the officer executed said act, he shall suffer the same penalty provided in the preceding paragraph; and if said act shall not have been accomplished, the officer shall suffer the penalties of prision correccional in its medium period and a fine of not less than twice the value of such gift. If the object for which the gift was received or promised was to make the public officer refrain from doing something which it was his official duty to do, he shall suffer the penalties of prision correccional in its maximum period to prision mayor in its minimum period and a fine not less than three times the value of the gift. In addition to the penalties provided in the preceding paragraphs, the culprit shall suffer the penalty of special temporary disqualification. While the Sandiganbayan imposed the correct prison term in applying the Indeterminate Sentence Law, the amount of the fine is erroneous. Paragraph 1 of Article 210 of the Revised Penal Code, in relation to paragraph 2 thereof, provides that if the act does not constitute a crime, the fine shall not be less than three times the value of the amount received. Evidence shows that petitioner received an aggregate amount of P5,800.00.12 He should therefore be ordered to pay a fine not less than 3 times its value. Accordingly, a fine of P18,000.00 is deemed reasonable. WHEREFORE, in view of the foregoing, the petition is DENIED. The decision of the Sandiganbayan in Criminal Case No. 17030, finding petitioner guilty beyond reasonable doubt of the crime of Direct Bribery and imposing upon him the indeterminate prison term of 3 years, 6 months, and 5 days of prision correccional, as minimum, to 7 years, 8 months, and 9 days of prision mayor, as maximum, is AFFIRMED with the MODIFICATION that the fine is increased to P18,000.00. In addition, petitioner shall suffer the penalty of special temporary disqualification. SO ORDERED. Davide, Jr., C.J., Quisumbing, Carpio, and Azcuna, JJ., concur.

[G.R. No. L-5284. September 11, 1953.] THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellant, vs. EDUARDO ABESAMIS, Defendant-Appellee. DECISION REYES, J.: On April 1, 1950, the Provincial Fiscal of Isabela filed with the Court of First Instance of that province the following information against Eduardo A. Abesamis: "The undersigned Provincial Fiscal accuses EDUARDO A. ABESAMIS, of the crime of DIRECT BRIBERY, provided for and penalized under article 210, of the Revised Penal Code, committed as follows: "That on or about the 13th day of August, 1947, in the municipality of Echague, province of Isabela, Philippines, and within the jurisdiction of this Honorable Court, the said accused being then the Justice of the Peace of Echague and Angadanan, Isabela, and as such is a public officer, did then and there willfully, unlawfully and feloniously, demand and receive from Marciana Sauri the amount of P1,100, with the agreement that he would dismiss the case for Robbery in Band with Rape against Emiliano Castillo, son of said Marciana Sauri, which was then pending in his Court. "Contrary to law." Dismissed in that court on a motion to quash on the grounds "that the facts alleged in the information do not sufficiently charge the crime of Direct Bribery," the case has been appealed to this Court by the Solicitor General. The information denominates the crime charged as "direct bribery" under article 210 of the Revised Penal Code presumably under the first and second paragraphs thereof, which read: "ART. 210. Direct Bribery. Any public officer who shall agree to perform an act constituting a crime, in connection with the performance of his official duties, in consideration of any offer, promise, gift or present received by such officer, personnally or through the mediation of another, shall suffer the penalty of prision correccional in its minimum and medium periods and a fine not less than the value of the gift and not more than three times such value, in addition to the penalty corresponding to the crime agreed upon, if the same shall have been committed. "If the gift was accepted by the officer in consideration of the execution of an act which does not constitute a crime, and the officer executed said act, he shall suffer the same penalty provided in the preceding paragraph; and if said act shall not have been accomplished, the officer shall suffer the penalties of arresto mayor in its maximum period and a fine of not less than the value of the gift and not more than twice such value." The crime charged does not come under the first paragraph. To fall within that paragraph the act which the public officer has agreed to perform must be criminal. To dismiss a criminal complaint, as the accused is alleged to have agreed to do in the present case, does not necessarily constitute a criminal

act, for the dismissal may be proper, there being no allegation to the contrary. (U.S. vs. Gacutan, 28 Phil., 100). It is possible, under the allegations of the information to regard the crime charged as falling within the second paragraph of article 210. This paragraph, however, distinguishes between two cases: one in which the act agreed to be performed has been executed and one in which the said act has not been accomplished, but there is telling whether the information is for one or the other. The information is, therefore, defective in that aspect. But while the information is insufficient to hold the accused for trial for direct bribery under the first or second paragraph of article 210, it is a sufficient indictment for indirect bribery under article 211. And since it is the allegations of fact rather than the denomination of the offense by the provincial fiscal that determine the crime charged, the information in the present case may be sustained as one for indirect bribery under the said article 211 of the Revised Penal Code. Such being the case, the information in question should not have been dismissed. Wherefore, the order appealed from is revoked and the case remanded to the court of origin for further proceedings, with costs against the appellee. Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Jugo, Bautista Angelo and Labrador, JJ., concur.

TIMOTEO A. GARCIA, Petitioner, - versus SANDIGANBAYAN, Respondent.

G.R. No. 155574 November 20, 2006

The fifty-six other Informations are similarly worded except for the alleged dates of commission of the offense, and the types/descriptions of the vehicles allegedly borrowed by them. The pertinent data in the other informations are as follows: (table)

24078 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x p.

Withdrawn per Court Resolution dated July 3, 1998, 103 Crim. Case # 24042

DECISION

On 22 August 1997, the Sandiganbayan issued orders for the arrest of the three accused[5] and for the holding of their departure from the country.[6] On 6 October 1997, petitioner posted a consolidated surety bond for his provisional liberty.[7] In a resolution dated 3 July 1998, the withdrawal of the information in Criminal Case No. 24078 was granted.[8] On 17 August 1998, when arraigned, petitioner and accused Tagupa, assisted by counsel de parte, pleaded not guilty to the charges.[9] Accused Nabo remains at large. On 15 October 1998, pre-trial was concluded.[10] Thereafter, trial ensued. The evidence of the prosecution, as summarized by the Sandiganbayan, are as follows: ESTANISLAO BARRETE YUNGAO (hereinafter, Yungao) declared that he was employed as the driver and liaison officer of the Oro Asian Automotive Center Corporation (hereinafter, the Company), an establishment engaged in the assembly of motor vehicles, during the period covering the years 1991 to 1995. As such, Yungao had to officially report to the Land Transportation Office (LTO) of Cagayan de Oro City all the engine and chassis numbers prior to the assembly of any motor vehicle. In the process, the Company had to secure from the LTO a Conduct Permit after a motor vehicle has been completely assembled, for purposes of carrying out the necessary road testing of the vehicle concerned. After the said road testing and prior to its eventual sale/disposition, the vehicle has to be first properly registered with the LTO. Accused Garcia, in his capacity as the Director of the LTO of Cagayan de Oro City, during all times relevant to the instant cases, was the approving authority on the aforesaid reportorial requirements and the signatory of the said Conduct Permits. By reason thereof, Yungao knew accused Garcia since January of 1991. Yungao would always personally talk to accused Garcia regarding the issuance of the required Conduct Permit for any newly assembled vehicle. Yungao would secure from accused Garcia as many as 30 to 40 of such permits in a year. In the process, accused Garcia would regularly summon Yungao to his office to tell him to inform either Aurora or Alonzo Chiong, the owners of the Company, that he (accused Garcia) would borrow a motor vehicle for purposes of visiting his farm. When Yungao could not be contacted, accused Garcia would personally call up the Company and talk to the owners thereof to borrow the vehicle. Accused Garcia confided to Yungao that he could not utilize the assigned government vehicle for his own personal use during Saturdays and Sundays. It was for this reason that he had to borrow vehicles from the Chiongs to enable him to visit his farm. Yungao maintained that accused Garcia had been regularly borrowing motor vehicles from the Chiongs during the period covering January of 1993 up to

CHICO-NAZARIO, J.: Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court which seeks to set aside and nullify the Decision[1] of the Sandiganbayan dated 6 May 2002 which convicted petitioner Timoteo A. Garcia of 56 counts of violation of Section 3(b) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, in Criminal Cases Nos. 24042 to 24098 (except 24078), and its Resolution[2] dated 2 October 2002 denying petitioners Motion for Reconsideration. The instant case stemmed from the Complaint of Maria Lourdes Miranda against petitioner, then Regional Director, Land Transportation Office (LTO), Region X, Gilbert G. Nabo and Nery Tagupa, employees of the same office, for violation of the Anti-Graft and Corrupt Practices Act for their alleged frequent borrowing of motor vehicles from Oro Asian Automotive Center Corporation (Company). Finding probable cause for violation thereof, Graft Investigation Officer II Gay Maggie F. Balajadia-Violan recommended that petitioner, Gilbert G. Nabo and Nery Tagupa be indicted for violation of Section 3(b) of Republic Act No. 3019, as amended. On 14 August 1997, 57 Informations were filed with the Sandiganbayan against petitioner, Gilbert G. Nabo and Nery Tagupa for violation of Section 3(b) of Republic Act No. 3019, as amended. The Information in Criminal Case No. 24042 reads: That on or about the period covering January 9, 1993 to January 10, 1993 or sometime prior thereto, in Cagayan de Oro City, Philippines, within the jurisdiction of this Honorable Court, the said accused, TIMOTEO A. GARCIA, GILBERT G. NABO and NERY TAGUPA, being then public officers or employees of the Land Transportation Office (LTO), Cagayan de Oro City, taking advantage of their respective official positions, and conspiring, confederating and mutually helping one another and with intent to gain personal use or benefit, did then and there willfully, unlawfully and feloniously borrow One (1) unit Asian Automotive Centers Service Vehicle Fiera Blue KBK-732, in good running condition, spare tire, tools from Oro Asian Automotive Corporation, which is engaged in the business of vehicle assembly and dealership in Cagayan de Oro City, knowing that said corporation regularly transacts with the accuseds LTO Office for the registration of its motor vehicles, in the reporting of its engine and chassis numbers as well as the submission of its vehicle dealers report and other similar transactions which require the prior approval and/or intervention of the said accused Regional Director and employees and/or their said LTO office in Cagayan de Oro City, to the damage and prejudice of and undue injury to said Oro Asian Automotive Corporation, including complainant Maria Lourdes Miranda.[3]

and until November of 1994. Accused Garcia would always ask his representative to take the Companys vehicle on a Saturday morning. However, Yungao never reported for work on Saturdays; thus, he was not the one who actually released the borrowed motor vehicles to the representative of accused Garcia. Nonetheless, Yungao would be aware of the fact that accused Garcia borrowed the vehicles requested because, for every such instance, a corresponding delivery receipt is issued, which is placed on top of his table for him to place in the Companys record files on the following working day. The numerous delivery receipts would show and indicate the actual number of times accused Garcia had borrowed vehicles from the Company. Finally, Yungao identified the affidavit which he executed in connection with the subject cases. On cross-examination, Yungao testified that it was his duty to keep the permits relating to the road testing of the motor vehicles assembled by the Company. These permits were secured by him from accused Garcia before the vehicles were eventually put on display or presented to potential buyers. Although there was a Regulation Officer at the LTO before whom the request for the issuance of a Conduct Permit is to be presented, Yungao was often told to go straight up to the room of accused Garcia so that the latter could personally sign the said permit. It was only when accused Garcia is absent or is not in office that the papers submitted to the LTO were attended to by his assistant. Yungao testified that accused Garcia would always make his request to borrow the Companys motor vehicle verbally and on a Friday. However, Yungao admitted that he was not very familiar with the signature of accused Garcia, and that the latters signature did not appear in any of the delivery receipts. During all these years, Yungao could only recall one (1) instance when accused Garcia failed to approve the Companys request, and this was a request for an extension of the usual 5-day road test period granted to the Company. Nonetheless, the Company found the said disapproval to be acceptable and proper. On questions propounded by the Court, Yungao testified that the names and signatures of the persons who actually received the Companys vehicles were reflected on the faces of the delivery receipts. However, Yungao does not recognize the signatures appearing on the said delivery receipts, including those purportedly of accused Tagupa, because Yungao was not present when the vehicles were taken. The prosecution had intended to present another witness in the person of Ms. Ma. Lourdes V. Miranda (hereinafter, Miranda), who was present at the time Yungao testified. Prior to her presentation, however, the parties agreed to enter into stipulations and admissions. Thus, it was stipulated that Miranda was the mother of a child named Jane, who was run over and killed in a vehicular accident; that the driver of the ill-fated motor vehicle was accused Nabo; that Miranda, thereafter, successfully traced the said vehicle and eventually discovered the existence of numerous delivery receipts in the files and possession of the Company; and that said discovery led to the institution of the subject criminal cases against herein accused. As a result of such admissions and stipulations, the proposed testimony of Miranda was, thereafter, dispensed with.

AURORA J. CHIONG (hereinafter, Chiong) declared that she is the VicePresident and General Manager of the Company, a business establishment engaged in the assembly of motor vehicles. In the process, the Company has to submit a Dealers Report to the LTO prior to the assembly of a motor vehicle. After the assembly is completed, the Company has to secure a permit from the LTO for purposes of conducting the necessary road testing of the newly assembled motor vehicle. In 1993, accused Garcia was the Regional Director of the LTO in Cagayan de Oro City. He was the officer who approves the needed Conduction Permit of newly assembled motor vehicles. He was also the LTO officer who approves and signs the Companys annual LTO Accreditation Certificate. Chiong recounted that accused Garcia has a farm, and that he would need a vehicle to transport water thereto. For this purpose, he would, on a weekly basis, borrow from the Company a motor vehicle, either by asking from Chiong directly through telephone calls or through Yungao, her Liaison Officer. Everytime accused Garcia would borrow a motor vehicle, the Company would issue a delivery receipt for such purpose, which has to be signed by the person whom accused Garcia would send to pick up the motor vehicle. Chiong was usually the company officer who signed the delivery receipt for the release of the borrowed motor vehicle to the representative of accused Garcia. When she was not in office, she would authorize her personnel to place [their] initials on top of her name. On several occasions, Chiong had seen accused Nabo affixing his signature on the delivery receipt before taking out the borrowed motor vehicles. Chiong was very sure that the driver who picked up the motor vehicle from the Company was the personnel of accused Garcia because the latter would always call her up first before sending his representative to get a vehicle. Chiong was likewise very familiar with the voice of accused Garcia because she had been dealing with him for a long period of time already, and all the while she had always maintained a cordial relationship with him. On questions propounded by the Court, Chiong testified that accused Garcia would ask his driver to get a vehicle on a Saturday at around 6:30 oclock in the morning. He would return it in the late afternoon of the same day. There was only one instance when accused Garcia returned the motor vehicle on the day after, and this was the time when the said vehicle had figured in a vehicular accident which resulted in the death of a certain Jane, the daughter of Miranda. Chiong was not the complainant in the said vehicular accident case because she could not afford to offend or antagonize accusedGarcia, and she had always considered the lending of motor vehicles to accused Garcia as a public relation thing. Chiong clarified that the subject motor vehicles occasionally borrowed by accused Garcia were all company service cars and not newly assembled vehicles. Finally, she testified that she gets irritated whenever accused Garcia would ask for a vehicle at a time when she herself would also need it. However, under the circumstances, she had to give in to his request.[11]

For the defense, petitioner took the witness stand, while accused Tagupa did not present any evidence. Petitioner testified that he was the Regional Director of the 10th Regional Office of the LTO from August, 1987 to December, 1994. He downright denied borrowing any motor vehicle from the

Company arguing that his signatures never appeared in the Delivery Receipts[12] submitted by the prosecution.[13] He admitted, though, that the Company has been continually transacting business with his office properly and officially, and has not, even for a single instance, violated any rules with respect to assembly of motor vehicles, and that there was no reason for the owners of the Company to harbor any ill-feelings against him.[14] He further admitted that he had known Atty. Aurora Chiong, VicePresident and General Manager of the Company, even before he became Regional Director when he was still the Chief of the Operations Division.[15] He added that employees of the LTO are used to borrowing vehicles from their friends and that this practice has been going on prior to his being Regional Director. He claimed he repeatedly warned his subordinates about the illegality of the same but they merely turned a deaf ear.[16] Lastly, he said his driver, accused Nabo, had, on several occasions, driven motor vehicles and visited him at his farm, and that he rode with him in going home without allegedly knowing that the vehicles driven by Nabo were merely borrowed from his (Nabo) friends.[17] On 6 May 2002, the Sandiganbayan promulgated the assailed decision convicting petitioner of fifty-six counts of violation of Section 3(b) of Republic Act No. 3019, as amended. Accused Tagupa was acquitted, while the cases against accused Nabo, who remained at large, were archived. The decretal portion of the decision reads: WHEREFORE, judgment is hereby rendered finding accused TIMOTEO A GARCIA GUILTY beyond reasonable doubt of fifty-six (56) counts of violation of Section 3(b) of Republic Act No. 3019, otherwise known as The Anti-Graft and Corrupt Practices Act. Accordingly, said accused is hereby sentenced to: (i) in each case, suffer an indeterminate sentence of imprisonment for a period of six (6) years and one (1) month, as minimum, to twelve (12) years and one (1) month, as maximum; (ii) suffer all accessory penalties consequent thereto; and (iii) pay the costs. With respect to accused NERY TAGUPA, by reason of the total lack of any evidence against him, he is hereby ACQUITED. As for accused Gilbert G. Nabo, considering that he remained at large and jurisdiction over his person had yet to be acquired, let the case as against him be achieved.[18]

SUPPLIED THE DEFICIENCIES IN THE EVIDENCE OF THE PROSECUTION WITH ASSUMPTIONS WHICH WERE NOT AT ALL SUPPORTED BY THE EVIDENCE ON RECORD; 5. THE SANDIGANBAYAN ERRED WHEN IT OBSERVED DIFFERENT STANDARDS OF JUSTICE BY ACQUITTING THE PETITIONERS CO-ACCUSED TAGUPA AND CONVICTING THE HEREIN PETITIONER WHEN THE SAME REASONING SHOULD HAVE LED ALSO TO THE ACQUITTAL OF THE PETITIONER.

In any criminal prosecution, it is necessary that every essential ingredient of the crime charged must be proved beyond reasonable doubt in order to overcome the constitutional right of the accused to be presumed innocent.[19] To be convicted of violation of Section 3(b)[20] of Republic Act No. 3019, as amended, the prosecution has the burden of proving the following elements: (1) the offender is a public officer; (2) who requested or received a gift, a present, a share a percentage, or a benefit (3) on behalf of the offender or any other person; (4) in connection with a contract or transaction with the government; (5) in which the public officer, in an official capacity under the law, has the right to intervene.[21] Petitioner maintains that not all the elements of Section 3(b) have been established by the prosecution. Petitioner focuses primarily on the fourth element. He argues that the prosecution failed to show the specific transactions of the Company with the LTO of Cagayan de Oro that petitioner approved and/or intervened in so that he could borrow from, or be lent by, the Company a vehicle. Inasmuch as he was convicted by the Sandiganbayan of fifty-six counts of violation of Section 3(b) for allegedly borrowing the Companys vehicle fifty-six times, the Sandiganbayan, he stresses, should have at least pointed out what these transactions were. This, petitioner claims, the Sandiganbayan failed to show with certainty in its decision. Petitioner adds that the prosecution did not even attempt to introduce evidence to show what contract or transaction was pending before the LTO over which petitioner had the right to intervene being the Regional Director when, at the period stated in all the fifty-six informations, he borrowed a vehicle. We agree with petitioner that the prosecution miserably failed to prove the existence of the fourth element. It is very clear from Section 3(b) that the requesting or receiving of any gift, present, share, percentage, or benefit must be in connection with a contract or transaction [22] wherein the public officer in his official capacity has to intervene under the law. In the case at bar, the prosecution did not specify what transactions the Company had with the LTO that petitioner intervened in when he allegedly borrowed the vehicles from the Company. It is insufficient that petitioner admitted that the Company has continually transacted with his office. What is required is that the transaction involved should at least be described with particularity and proven. To establish the existence of the fourth element, the relation of the fact of requesting and/or receiving, and that of the transaction involved must be clearly shown. This, the prosecution failed to do. The prosecutions allegation that the Company regularly transacts with petitioners LTO Office for the registration of its motor vehicles, in the reporting of its engine and chassis numbers, as well as the submission of its vehicle dealers report, and other similar transactions, will not suffice. This general statement failed to show the link between the 56 alleged borrowings with their corresponding transactions. Failing to prove one of the other elements of the crime charged, we find no need to discuss the presence or absence of the elements. The next question to be resolved is: Can petitioner be convicted of any other crime (i.e., Direct Bribery or Indirect Bribery) charged in the informations? The crime of direct bribery as defined in Article 210[23] of the Revised Penal Code consists of the following elements: (1) that the accused is a public officer; (2) that he received directly or through another some gift or present, offer or promise; (3) that such gift, present or promise has been given in

Petitioner is now before us assigning as errors the following: 1. THE SANDIGANBAYAN ERRED IN HOLDING THAT ALL THE ELEMENTS OF SECTION 3(B) OF REPUBLIC ACT NO. 3019 WERE PRESENT IN CRIM. CASES NOS. 24042 TO 24098 (EXCEPT 24078) AND IN FINDING THE HEREIN PETITIONER GUILTY OF FIFTY SIX (56) COUNTS OF VIOLATION THEREOF; THE SANDIGANBAYAN ERRED IN FINDING THE HEREIN PETITIONER GUILTY BEYOND REASONABLE DOUBT OF FIFTY SIX (56) COUNTS OF VIOLATION OF SECTION 3(B) OF REPUBLIC ACT NO. 3019 ON THE BASIS OF FATALLY DEFECTIVE INFORMATIONS WHEREIN THE FACTS CHARGED NEVER CONSTITUTED AN OFFENSE; THE SANDIGANBAYAN ERRED IN FINDING THE HEREIN PETITIONER GUILTY BEYOND REASONABLE DOUBT OF FIFTY SIX (56) COUNTS OF VIOLATION OF SECTION 3(B) OF REPUBLIC ACT NO. 3019 ON THE BASIS OF EVIDENCE WHICH IS INSUFFICIENT TO CONVICT (EVEN FOR A SINGLE COUNT); THE SANDIGANBAYAN ERRED AND IN THE PROCESS VIOLATED THE CONSTITUTIONAL AND LEGAL RIGHTS OF THE HEREIN PETITIONER WHEN IT

2.

3.

4.

consideration of his commission of some crime, or any act not constituting a crime, or to refrain from doing something which it is his official duty to do; and (4) that the crime or act relates to the exercise of his functions as a public officer.[24] Thus, the acts constituting direct bribery are: (1) by agreeing to perform, or by performing, in consideration of any offer, promise, gift or present an act constituting a crime, in connection with the performance of his official duties; (2) by accepting a gift in consideration of the execution of an act which does not constitute a crime, in connection with the performance of his official duty; or (3) by agreeing to refrain, or by refraining, from doing something which is his official duty to do, in consideration of any gift or promise.[25] In the case under consideration, there is utter lack of evidence adduced by the prosecution showing that petitioner committed any of the three acts constituting direct bribery. The two prosecution witnesses did not mention anything about petitioner asking for something in exchange for his performance of, or abstaining to perform, an act in connection with his official duty. In fact, Atty. Aurora Chiong, Vice-President and General Manager of the Company, testified that the Company complied with all the requirements of the LTO without asking for any intervention from petitioner or from anybody else from said office.[26] From the evidence on record, petitioner cannot likewise be convicted of Direct Bribery. Can petitioner be found guilty of Indirect Bribery? Indirect bribery is committed by a public officer who shall accept gifts offered to him by reason of his office. The essential ingredient of indirect bribery as defined in Article 211[27] of the Revised Penal Code is that the public officer concerned must have accepted the gift or material consideration. In the case at bar, was the prosecution able to show that petitioner indeed accepted a gift from the Company? The alleged borrowing of a vehicle by petitioner from the Company can be considered as the gift in contemplation of the law. To prove that petitioner borrowed a vehicle from the Company for 56 times, the prosecution adduced in evidence 56 delivery receipts[28] allegedly signed by petitioners representative whom the latter would send to pick up the vehicle. The prosecution was not able to show with moral certainty that petitioner truly borrowed and received the vehicles subject matter of the 56 informations. The prosecution claims that petitioner received the vehicles via his representatives to whom the vehicles were released. The prosecution relies heavily on the delivery receipts. We, however, find that the delivery receipts do not sufficiently prove that petitioner received the vehicles considering that his signatures do not appear therein. In addition, the prosecution failed to establish that it was petitioners representatives who picked up the vehicles. The acquittal of one of the accused (Nery Tagupa) who allegedly received the vehicles from the Company further strengthens this argument. If the identity of the person who allegedly picked up the vehicle on behalf of the petitioner is uncertain, there can also be no certainty that it was petitioner who received the vehicles in the end. Factual findings of the Sandiganbayan are conclusive upon this Court except where: (1) the conclusion is a finding grounded entirely on speculation, surmise and conjectures; (2) the inference made is manifestly an error or founded on a mistake; (3) there is grave abuse of discretion; (4) the judgment is based on misapprehension of facts; and (5) the findings of fact are premised on a want of evidence and are contradicted by evidence on record.[29] In the case before us, we are constrained to apply the exception rather than the rule. We find that the ruling of the Sandiganbayan that petitioners actually received the vehicles through his representatives is grounded entirely on speculation, surmise, and conjectures, and not supported by evidence on record. The certainty of petitioners receipt of the vehicle for his alleged personal use was not substantiated. WHEREFORE, all the above considered, the petition is GRANTED. The Decision of the Sandiganbayan in Criminal Cases Nos. 24042 to 24077 and 24079 to 24098 isREVERSED and SET ASIDE. For insufficiency of evidence, the petitioner is hereby ACQUITTED of the crime charged in the informations. No costs.

SO ORDERED.

G.R. No. L-19982 December 29, 1922 (202-203) "EL DEBATE," INC., petitioner, vs. JOSE TOPACIO, Director of Posts, respondent. Manuel C. Briones, Melencio, Virata and De la Rama and Feliciano B. Gardiner for petitioner. Attorney-General Villa-Real for respondent. MALCOLM, J.: On November 16, 1922, El Debate, a newspaper of the City of Manila, published a full page announcement which in translation reads as follows: P18,000.00 HOW WIN THEM? READ THE FOLLOWING GRAND NUMBER CONTEST El Debate opens on this date two contests: The first contest is for the award of prizes for the nearest approximate guesses as to the total number of votes that will be cast for any of the winning candidates for Carnival Queen either in the provinces or in Manila. This contest will close at noon, December 23d. The second contest is for the award for the nearest approximate guesses as to the total number of votes that the Queen elect will receive for the Carnival queenship. This second contest will close at noon of the day in which the final canvass of the Carnival queen contest will take place. CONDITIONS TO PARTICIPATE IN THE CONTESTS

THE VERDICT The decision of the first as well as the second contest will be made immediately after the Carnival Headquarters had made public the result of the provincial elections and the final election, respectively. As soon as a certificate of the results in the provinces and of the final result is received in our office, we will proceed to select from the estimates (guesses), those that are the nearest in order to award the prize winners. The statements or explanations of the winning participants upon which their estimate (guess) was based will be punished in El Debatefor the satisfaction of the public. The checking of the winners will be made in the office of El Debate, 2 De la Rama Bldg., Sta. Cruz, Manila. THE PRIZES There are 110 prizes of the total value of P6,000 for the first contest, and for the second contest there are 215 prizes, the total value of which is P12,000, that is, a grand total of P18,000, based upon 20% of the value of 6,000 full subscriptions for one year, which is the present circulation of El Debate, and should this total value not be covered in the meantime, a proportional reduction of the number and of the amount of the prizes will be made.lawphil.net THE PRIZES FOR THE FIRST CONTEST First Prize ....................................................... Second Prize ...................................................... Third Prize ....................................................... Two prizes of P200.00 each .............................. Five prizes of P100.00 each ............................. Ten prizes of P50.00 each ............................... Twenty prizes of P20.00 ................................. Seventy prizes of P10.00 ................................ 110 prizes ..................................................... THE PRIZES FOR THE SECOND CONTEST P2,000.00 1,000.00 500.00 400.00 500.00 500.00 400.00 700.00 6,000.00

Any subscriber to El Debate may participate in these two contests by paying in advance at least the amount of the subscription of a quarter under the following conditions: The person who pays the price of a quarterly subscription shall be given a coupon for the first contest and another coupon for the second contest. He who pays for two quarters shall be given two coupons for the first contest and two for the second contest. He who pays for three quarters, that is to say, nine months, will receive three coupons for each of the said contests. And the one paying for a whole year will receive four coupons for each of the said contests. But payment is to be strictly in advance. EACH "CALCULO" (ESTIMATE OR GUESS) MUST BE EXPLAINED Each clculo (estimate or guess) for any of the two contests must be accompanied by a brief statement or explanation containing the facts upon which it is based. This explanatory statement may be in English, or Spanish, or in any Philippine dialect. And in order that the participants may have some basis for making a correct estimate (guess), El Debate will publish every day information about the partial results that will be made from day to day at the Carnival offices, circulation or newspapers, etc. Estimates (guesses) without the corresponding explanatory note will not be considered.

First Prize ....................................................... Second Prize ............................... Third Prize ............................... Two prizes of P400.00 each ............................... Ten prizes of P100.00 each ............................... Twenty prizes of P50.00 each ............................... Forty prizes of P20.00 ............................... 140 prizes of P10.00 ............................... 215 prizes .....................................................

P4,000.00 2,000.00 1,000.00 800.00 1,000.00 1,000.00 800.00 1,400.00 12,000.00

The Director of Posts, following the advice of the Attorney-General, refused to admit the issues of El Debate, containing the advertisement, to the mails, for the reason that it fell within the provisions of the Administrative Code concerning non-mailable matter. Not satisfied with the ruling of the Director of Posts, the publishers of El Debate have had recourse to these original proceedings in mandamus to settle the controversy between the newspaper and the Government. The argument, while brilliant and informative to an unusually high degree, has covered a somewhat wider range than is essential. The issues will be more sharply defined and, correspondingly, our burden will be lightened, if all extraneous matter is thrown overboard. The demurrer interposed by the Government serves to admit the fact pleaded in the complaint. The applicable law is, likewise, conceded, as is also the extent of power of the Director of Posts. Section 1954 (a) of the Administrative Code includes, as absolutely non-mailable matter, "Written or printed matter in any form advertising, describing, or in any manner pertaining to, or conveying or purporting to convey any information concerning any lottery, gift enterprise or similar scheme depending in whole or in part upon lot or chance. . . ." As previously announced, the courts will not interfere with the decision of the Director of Posts as to what is, and what is not, mailable matter, unless clearly of opinion that it was wrong. (Sotto vs. Ruiz [1921], 41 Phil., 468; Reyes vs. Topacio, p. 207, ante.) In the next place, the fact that an Attorney-General of the Philippines had held one way and another Attorney-General an opposite way (and to make the record complete, we would add that an AttorneyGeneral in 1912 also rendered an opinion on the subject), with reference to carnival lotteries and newspaper guessing schemes; the fact that three Attorneys-General of the United States sustained the validity of guessing contests, only to be overruled by an Attorney-General subsequently in office; the fact that the older authorities in the United States refused to hold such contests illegal, while a contrary view is now entertained; and the fact that guessing contests are held not to be lotteries in England, Canada, and other foreign countries, is relatively unimportant. Passing by the historical phases, what we want to know is the actual state of the law, and if the doctrines announced in the authorities rest on a sound basis of reason. In the next place, advancing one step further toward the issues, while countless definitions of lottery have been attempted, the authoritative one for this jurisdiction is that of the United States Supreme Court, in analogous cases having to do with the power of the United States Postmaster General, viz.: The term "lottery" extends to all schemes for the distribution of prizes by chance, such as policy playing, gift exhibitions, prize concerts, raffles at fairs, etc., and various forms of gambling. The three essential elements of lottery are: First, consideration; second, prize; and third, chance. (Horner vs. United States [1892], 147 U.S., 449; Public Clearing House vs. Coyne [1903], 194 U. S. 497; U. S. vs. Filart and Singson [1915], 30 Phil., 80; U. S. vs. Olsen and Marker [1917], 36 Phil., 395; U. S. vs. Baguio [1919], 39 Phil., 962; Valhalla Hotel Construction Company vs. Carmona, p. 233, ante.) Reverting then to the admitted facts, to the admitted law, and to the admitted judicial doctrines, the fundamental question is this: Was the decision of the Director of Posts, refusing the privileges of the mails to El Debate, clearly erroneous? And the subsidiary question is this: Is the guessing contest of El Debate a "lottery, gift enterprise, or similar scheme depending in whole or in part upon lot or chance" within the meaning of the law? Counsel for the petitioner is the first to admit that the element of prize is present. We are, therefore, relieved from considering this point. But he maintains that the element of chance "has been reduced to a minimum and is practically nil, while the element of consideration is totally absent." Taking up, therefore, these two points in order, we finally arrive at our task.

What may be termed "the pure chance doctrine" is no longer upheld by the weight of authority in the United States. The element of chance is present even though it may be accompanied by an element of calculation or even of certainly. Counsel, therefore, practically admits himself out of court when he concedes that any element of chance is present, for let it be remembered that our law includes the phrase "depending in whole or in part upon lot or chance." (Public Clearing House vs. Coyne, supra; People ex rel. Ellison vs. Lavin [1904], 179 N. Y., 164; 66 L. R. A., 601 [estimate of the number of cigars on which a tax is paid during a specified month]; 25 Ops. Atty.-Gen. U. S., 286 [estimate of the total number of paid admissions to the World's Fair at St. Louis, Missouri, from its opening to its close, and estimate of the popular vote cast for the winning candidate for President of the United States in 1904]; Stevens vs. Cincinnati Times-Star Company [1905], 72 Ohio St., 112; 106 A. S. R., 586 [guessing the number of votes that will be cast for a public officer at an election]; Waite vs. Press Publishing Association [1907], 155 Fed., 58; 12 Ann. Cas., 319 [estimate of the total popular votes to be cast in the election for the office of President of the United States].) It is difficult to select one of the cases cited to elucidate the point under consideration, because each and everyone of them contains well considered opinions. It was thus the decision of the United States Supreme Court in Public Clearing House vs. Coyne which marked the turning point toward a stricter application of the law. It was the decision of the Court of Appeals of the State of New York in People ex rel. Ellison vs. Lavin, which included the best dissertation on the philosophical subject of what constitutes chance. While it was the decision of the Federal Court in Waite vs. Press Publishing Association which had a splendid rsum of the situation, followed by all the encyclopedias. We choose the latter because the more recent and because the briefest. As indicated, in the case of Waite vs. Press Publishing Association, the question before the court was whether a guessing contest inaugurated by a publishing association prior to an election, offering certain rewards or prizes to those persons who, prior to such election, submitted to the association the nearest correct estimates of the total number of votes cast for the office of President of the United States, and at the time paid a certain sum as the subscription to a named periodical, was a contest of chance and a lottery, in violation of the laws of the United States and the laws of the State of Michigan. We quote: Several years ago it was a doubtful question whether a so-called guessing contest was valid or not. Three attorneys-general of the United States (Miller, Griggs, and Knox) had in formal opinions sustained the validity of similar contests, and following them, Judge Thomas, in the case of United States vs. Rosenblum (121 Fed. Rep., 180), had refused to hold such a contest illegal, and had sustained a demurrer to an information against the president of a corporation then engaged in carrying on one. These rulings were in accordance with the trend of authorities in this country and England, the cases being cited in the opinion of Judge Thomas (121 Fed. Rep., 182). The exception to be noted was the case of Hudelson vs. State (94 Ind., 426; 48 Am. Rep., 171), in which the Supreme Court of Indiana held that a contest dependent upon the guessing of the nearest to the number of beans contained in a glass globe was a lottery or gift enterprise. The cases which sustained the validity of the various guessing contests all held that, since the correct number either did or would exist, more or less skill and judgment could be exercised in guessing it, and therefore the estimate of the nearest number to the correct one could not properly be considered a matter of mere chance. On the other hand, in the Hudelson case the court, for the first time, drew attention to the fact that, while the number of beans in the glass globe would be fixed and definite, the ascertainment of that number could be nothing other than a mere matter of guessing, for it was impossible under the circumstances to ascertain the information upon which a correct estimate could alone be made. Subsequent to the decision in the Hudelson case came that of the Supreme Court of the United States in Public Clearing House vs. Coyne (194 U.S., 497; 24 U. S. Sup. Ct. Rep., 789; 48 U. S. [L. ed.], 1092; and People vs. Lavin, 179 N. Y., 164; 1 Ann. Cas., 165; 71 N. E. Rep., 753; 66 L. R. A., 601). In the Coyne case the court sustained a fraud order issued by the post-office department, directing the rejection of the mail of "The Public Clearing House"

on the ground that it was a fraudulent scheme and constituted a lottery. It is unnecessary to describe the details of the scheme; the facts will be found in the opinion. The court, speaking by Mr. Justice Brown, disposes of the matter by saying: "The scheme lacks the elements of a legitimate business enterprise, and we think there was no error in holding it to be lottery within the meaning of the statute." This case was followed by Preferred Mercantile Co. vs. Hibbard (142 Fed. Rep., 877), decided by Judge Lowell. In the Lavin case (179 N. Y., 164; 1 Ann. Cas., 165; 71 N. E. Rep., 753; 66 L. R. A., 601), the scheme provided for the distribution of money among those purchasers of certain brands of cigars who should estimate most closely the number of cigars of all brands upon which the government would collect taxes during the month named. Discussing what constitutes chance, Judge Cullen, speaking for the court, says (page 168 of 179 N. Y., page 754 of 71 N. E. Rep.): "It is strictly and philosophically true in nature and reason that there is no such thing as chance or accident; it being evident that these words do not signify anything really existing, anything that is truly an agent or cause of any event; but they signify merely men's ignorance of the real and immediate cause. But though nothing occurs in the world as a result of chance, the occurrence may be a matter of chance to the observer from his ignorance of antecedent causes or of the laws of their operation." The court refers at some length to the Coyne Case (194 U. S., 497; 24 U. S. Sup. Ct. Rep., 789; 48 U. S. [L. ed.], 1092), and reaches the conclusion that the scheme before it falls far within the requisites of a lottery as defined in that case, under a statute very similar to the New York one. The two cases referred to, the Coyne case and the Lavin case, are cited by AttorneyGeneral Moody in his opinion of Nov. 28, 1904 (25 Opinions of Attorneys-General, 286), as authority for the reversal of the opinions of his predecessors holding that "guessing contest" were not within the prohibition of the federal statutes. The schemes presented to AttorneyGeneral Moody for his decision were dependent, the one upon estimates of the total number of paid admissions to the World's Fair at St. Louis, and the other upon estimates of the total vote cast for President in 1904. The conclusions he reached were as follows: "Conceding that the estimates in such a contest (the World's Fair contest) will be to some extent affected by intelligent calculation, the conclusion is, nevertheless, irresistible that it is largely a matter of chance which competitor will submit the nearest correct estimate. The estimates cannot be predicated upon natural and fixed laws, since the total number of admissions may be affected by many conditions over which the participants in this scheme have no control and cannot possibly foresee." (Page 290.) And again: "Neither of these contests is a "legitimate business enterprise." In each thousands invest small sums in the hope and expectation that luck will enable them to win large returns. A comparatively small percentage of the participants will realize their expectations, and thousands will get nothing. They are, in effect, lotteries, under the guise of 'guessing contests,' "(Page 291.)

The last case to which we care to call attention upon the general question is that of Stevens vs. Cincinnati Times-Star Co. (72 Ohio St., 112; 73 N. E. Rep., 1058; 106 Am. St. Rep., 586). In this case the Supreme Court of Ohio passed upon a number of guessing contests carried on by newspapers in Ohio. They involved the total vote for a state officer at a coming state election. Respecting the nature of these contests, the court said (page 150 of 72 Ohio St., page 1061 of 73 N. E. Rep.): "It is true that one acquainted with the results of the elections of the state in previous years and educated in politics would have some advantages over one ignorant in those respects, yet it must be apparent even to a casual observer that the result would depend upon so many uncertain and unascertainable causes that the estimate of the most learned would be after all nothing more than a random and undecisive judgment. In the sense above indicated there is an element of skill, possibly certainty, involved, but it is clear that the controlling predominating element is mere chance. It was a chance as to what the total vote would be; it was equally a chance as to what the guesses of the other guessers would be." xxx xxx xxx We think, for the reasons given by the courts in the cases from which we have already quoted, the guessing contest before us came within the terms of the Michigan law and the mischief at which it was aimed. At the time the estimates on which this suit is based were submitted, the vote was yet to be cast; indeed, on June 6, 1904, when the Battrick estimate was sent in, one of the leading candidates for President had not yet been nominated. The number of persons who would be qualified to vote at the election, and the number who would cast votes which would be counted, were not only undetermined but impossible of ascertainment at the time the estimates were submitted. A thousand causes might, in one way or another, intervene to affect the total vote cast, so that at the best an estimate, if at all near the total vote cast, would be but a lucky guess. In so great a vote the necessary margin of chance would be so large that no element of skill or experience could operated to predict the result. While one skilled in national politics and conversant with existing conditions might make a closer estimate than one wholly ignorant, yet, after all, the successful persons in such a contest would be but makers of lucky guesses in which skill and judgment could play no effective part. Conceding that the views of the American decisions are sound, and upon this point they are so full and clear that little remains to be said; conceding that the estimates in the contest of El Debate will, to some extent, and possibly to a great extent, be effected by intelligent calculation, as has been ingeniously argued by counsel for the petitioner, the conclusion is nevertheless irresistible that the scheme depends in part upon chance. The estimates cannot be predicated upon natural and fixed laws, since the total number of votes that will be cast for the winning candidates for carnival queen may be affected by many conditions, over which the participants in this scheme have no control and cannot possibly foresee. We think it is perfectly clear that the dominating and controlling factor in the awarding of the prizes is chance. In respect to the last element of consideration, the law does not condemn the gratuitous distribution of property by chance, if no consideration is derived directly or indirectly from the party receiving the chance, but does condemn as criminal, schemes in which a valuable consideration of some kind is paid directly or indirectly for the chance to draw a prize. But what may appear on its face to be a gratuitous distribution of property by chance, has often been held to be merely a device to evade the law. Predicated on these legal assumptions, it is argued here with much force that there is no consideration, for the reason that a subscriber to El Debate receives the full value of his money by receiving the paper

every day for the number of months that he subscribes. The position is tenable, as respects those persons who would subscribe to the paper regardless of the inducement to win a prize, for as to them there is no consideration. The position is fallacious, as to other persons who subscribe merely to win a prize (and it is to such persons that the scheme is directed), for as to them it means the payment of a sum of money for the consideration of participating in a lottery. Moreover, the subscriber do not all receive the same amount, for there are a few of them who will receive more than the others, and more, too, than the value paid for their subscriptions, through the chance of a drawing. (17 R. C. L., 1222; U. S. vs. Wallis [1893], 58 Fed., 942; State vs. Mumford [1881], 73 Mo., 647.) The general rule, therefore, is that guessing competitions or contests are lotteries within the statutes prohibiting lotteries. Indeed, it is very difficult, if not impossible, for the most ingenious and subtle mind to devise any scheme or plan short of a gratuitous distribution of property, which will not be held to be in violation of the Gambling Law, and repugnant to the Postal law. It is for the courts to look beyond the fair exterior, to the substance, in order to unmask the real element and the pernicious tendencies which the law is seeking to prevent. The purpose of El Debate in devising its advertising scheme was to augment its circulation and thus to increase the number of newspaper readers in the Philippines which is commendable. But the advertisement carries along with it a lottery scheme which is not commendable. The evils to society arising from the encouragement of the gambling spirit have been recognized here and elsewhere. Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the widespread pestilence of lotteries. The former are confined to a few persons and places, but the latter infest the whole community; they enter every dwelling; they reach every class; they prey upon the hard-earned wages of the poor; they plunder the ignorant and simple. Punitive and condemnatory laws must, therefore, be interpreted and enforced by the courts in a way calculated to secure the object sought. (U. S. vs. Salaveria [1918], 39 Phil., 102; Phalen vs. Commonwealth of Virginia [1850], 8 How., 161; Stone vs. Mississippi [1880], 101 U.S., 814.) Open the door of chance but a little, for one scheme, however ingeniously and meritoriously conceived, to pass through, and soon the whole country will be flooded with lotteries. Meeting, therefore, the issues in the case, we rule that the Director of Posts acted advisedly in refusing the use of the mails for the issue of El Debate which contained the announcement of its guessing contest, and that said contests is a lottery, or gift enterprise depending in part upon lot or chance, within the meaning of the Postal Law. The demurrer interposed by the Attorney-General is sustained, and unless the petitioner shall, within five days, so amend the complaint as to state a cause of action, the case shall be dismissed, with costs. So ordered. Araullo, C. J., Avancea, Villamor, Ostrand, Johns, and Romualdez, JJ., concur.

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