3rd Batch

Justifying Circumstances
1. People vs Samson
2. People vs CA and Tangan
3. People vs Narvaez
4. People vs Boholst-Caballero
5. People vs Chua Hiong
6. People vs Yapyuco
7. People Apolinar
8. People vs Toring
9. Ty vs People
10. Baxinela vs People
11. Pomoy vs People
12. Angcaco vs People
13. Tabuena vs People
1. People vs Samson
PEOPLE OF THE PHILIPPINES, G.R. No. 214883
Plaintiff-Appellee,
Present:
CARPIO, J., Chairperson,
- versus - BRION,
DEL CASTILLO,
MENDOZA, and
LEONEN,JJ
CRISTINA SAMSON, Promulgated:
Accused-Appellant.
O2 SEP 20~5- _ ~;Tu
x-----------------------------------DECISION
MENDOZA, J.:
For review in this appeal is the May 6, 2014 Decision 1 of the Court of Appeals (CA) in CA-G.R. CR HC
No. 05832, which affirmed the September 27, 2012 Decision2 of the Regional Trial Court, Branch
65, Tarlac City (RTC) in Criminal Case No. 12285, convicting accused-appellant Cristina Samson
(Cristina) for parricide committed against her husband, Gerry Delmar (Gerry), and sentencing her to
suffer the penalty of reclusion perpetua.
The Antecedents
On August 14, 2002, Cristina was charged with the crime of Parricide, defined and penalized under
Article 246 of the Revised Penal Code (RPC). The Information articulates the following criminal
charges, viz:
That on or about the 27th day of June, 2002 in Tarlac City, Philippines and within the jurisdiction of
this Honorable Court, said accused, willfully, unlawfully and feloniously and with intent to kill her
husband Gerry Delmar, with whom she was united in lawful wedlock, armed herself with a deadly
weapon, a knife, and stabbed said Gerry Delmar on his chest, which resulted to his death.
CONTRARY TO LAW. 3
When arraigned almost four (4) years later, Cristina entered a plea of not guilty. Thereafter, trial on
the merits ensued with the parties agreeing to a reverse trial on account of her invocation of the
justifying circumstance of self-defense.
Version of the Defense

The version of Cristina appears in the Brief for the Accused-Appellant4 as follows:
On June 27, 2002, CRISTINA SAMSON (Cristina) was in their house watching television together with
her children when her husband, Gerry Delmar (Gerry), who was drunk at that time, arrived. Gerry
asked Cristina if she had cooked food already but the latter answered in the negative because she
had no money to buy food. Gerry scolded and uttered words against her, and then slapped her.
They had an altercation for about ten (10) minutes when Cristinas father arrived and pacified
them. Gerry left but after thirty (30) minutes, he returned. He pointed a knife at Cristinas neck. The
latter begged Gerry not to hurt her and to pity their children if something happens to her. Gerry
continued pointing the knife and told Cristina to stop talking or otherwise, he will put a hole in her
neck. Then, Gerry slapped Cristinas face twice. While Gerry was still holding the knife, Cristina
pushed him and he fell on the ground. She took the knife which Gerry was holding and begged him
not to come near her. She was holding the knife near her chest pointed at Gerry when he suddenly
grabbed her and that was the time that the knife went in contact with his chest. When she saw her
husband bloodied, she shouted for help and her father (Rodolfo Samson) and brother (Allan
Samson) came and brought Gerry to the hospital. Her relatives told her that Gerry died in the
hospital. (TSN, September 6, 2006, pp. 14-27)
On June 27, 2002, ALLAN SAMSON (Allan) was at home watching television with his father. He
heard yelling and shouting from the house of his sister Cristina and brother-in-law Gerry. Since it
was just ordinary for him to hear his sister and brother-in-law fight, he and his father just ignored it.
After fifteen (15) minutes of listening to their quarrel, they heard Cristina cry for help. Upon hearing
this, he immediately went to the house of his sister and saw her holding Gerry and she requested
him and his father to bring Gerry to the hospital. They called a tricycle and he, together with his
father, brought Gerry to Talon General Hospital. The doctor, however, declared that Gerry was
already dead. Then, the tanod arrives and Allan instructed the tanod to call the siblings and
relatives of Gerry. When the relatives arrived, they went home. (TSN, November 18, 2006, pp. 4-6)5
Version of the Prosecution
In its Brief for the Appellee,6 the Office of the Solicitor General (OSG) provided the following as its
Counter-Statement of Facts:
On January 25, 1994, appellant Cristina Samson and victim Jerry Delmar were married. They were
blessed with two (2) daughters namely Christine and Cherrie Lou. The couple lived in their own
house which is just adjacent to the house of appellants family. The union of the two was never a
peaceful one. Constant quarrels filled their household and occurred in front of their children and
other relatives.
On June 27, 2002, appellant and the victim had one of their usual fights. As testified by appellant
herself, she and her two children were watching television in their home when the victim arrived
drunk. Victim asked for his dinner but appellant was not able to cook food which led to the fight.
Christine, the youngest daughter of the appellant and the victim, narrated that she witnessed the
fight between her parents, that as the fight escalated, appellant was able to get hold of the knife
which was placed on the roof and stabbed the victim. The victim fell on the ground and crawled
until he reached the door. Cristine remembered that people arrived in their home, helped the
victim board a tricycle and brought him to the hospital. Appellant, on the other hand, ran out and
went to her father and asked for money and left. That was the last night that Christine and Cherry
Lou saw their mother.
The Ruling of the RTC
In its September 27, 2012 Decision, the RTC found the proffered self-defense of Cristina to be
untenable. In its view, there was no longer any threat to her life before she stabbed her husband
Gerry. Though there was an existent danger as there was an altercation before the stabbing
incident, the imminence of such danger ceased when, as admitted by her, Gerry already put down
the knife. The RTC even concluded that it was she who provoked him when she suddenly pushed
him to the ground. She then took the knife and told him not to come near her. When he grabbed
her, she stabbed him. After she took hold of the knife, there was no longer any unlawful
aggression to speak of that would necessitate the need to kill Gerry.8 Thus, the decretal portion of
the RTC decision reads in this wise:
WHEREFORE, finding accused CRISTINA SAMSON guilty beyond reasonable doubt of the felony of
Parricide defined and penalized under Article 246 of the Revised Penal Code, accused CRISTINA
SAMSON is hereby sentenced to suffer a penalty of Reclusion Perpetua pursuant to R.A. 9346 (An
Act Prohibiting the Imposition of Death Penalty in the Philippines).
Accused is also ordered to indemnify the heirs of the victim, Christine S. Delmar and Cherrie Lo S.
Delmar the amount of P75,000.00 as civil indemnity, P75,000.00 as moral damages, P30,000.00 as
exemplary damages and costs of suit.
SO ORDERED.
The Ruling of the CA
The CA affirmed the ruling of the RTC. It stated that although there could have been an unlawful
aggression at the start when Gerry repeatedly slapped Cristina and held a knife at her throat, it
already disappeared when he put down the knife. According to the CA, it was this precise act that
gave Cristina the opportunity to push her husband and gain control of the knife. Moreover, the fact
that she fled and evaded arrest for four (4) years contradicted her claim of innocence.10 The CA
disposed as follows:
WHEREFORE, the Decision dated September 27, 2012 of the RTC, Branch 65, Tarlac City in Criminal
Case No. 12285, finding accused-appellant guilty beyond reasonable doubt of the crime of parricide
and sentencing her to reclusion perpetua and to pay damages and the cost of suit, is AFFIRMED.
SO ORDERED.
Hence, this appeal.
ISSUE
The sole issue to be resolved in this appeal is whether or not the CA erred in not appreciating the
justifying circumstance of self-defense in favor of Cristina.
Let it be underscored that appeal in criminal cases throws the whole case open for review and it is
the duty of the appellate court to correct, cite and appreciate errors in the appealed judgment
whether they are assigned or unassigned.12 Considering that what is at stake here is no less than
the liberty of the accused, this Court has meticulously and thoroughly reviewed and examined the
records of the case and finds that there is merit in her appeal.
There appears to be a conflict between the testimony of Cristina and her daughter, Christine
Delmar (Christine). Cristina claimed that she got the knife from her husband who fell down after
she pushed him. After taking possession of the deadly weapon, she told her husband not to come
near her. She was holding the knife near her chest and pointed towards him when he suddenly
grabbed her and that was the time that the knife went in contact with her husbands chest.
Christine, however, perceived it differently. According to her, she witnessed the fight between her
parents. She narrated that as the fight escalated, her mother was able to get hold of a knife, which
was inserted in the roof, and used it in stabbing her father.
Both the RTC and the CA believed the version of Cristina, but both were of the view that before she
stabbed her husband, there was no more imminent danger to her life. For said reason, her fatal
stabbing of her husband was not justified.
The Courts Ruling
Self -defense, when invoked as a justifying circumstance, implies the admission by the accused that
he committed the criminal act. Generally, the burden lies upon the prosecution to prove the guilt of
the accused beyond reasonable doubt rather than upon the accused that he was in fact innocent.
When the accused, however, admits killing the victim, it is incumbent upon him to prove any
claimed justifying circumstance by clear and convincing evidence.13 Well-settled is the rule that in
criminal cases, self-defense shifts the burden of proof from the prosecution to the defense.14
To invoke self-defense, in order to escape criminal liability, it is incumbent upon the accused to
prove by clear and convincing evidence the concurrence of the following requisites under the
second paragraph of Article 11 of the RPC, viz: (1) unlawful aggression; (2) reasonable necessity
of the means employed to prevent or repel it; and (3) lack of sufficient provocation on the part of
the person defending himself. 15
Presence of Unlawful
Aggression even if
Aggressor was Disarmed
Among the requisites of self-defense, the most important that needs to be proved by the accused,
for it to prosper, is the element of unlawful aggression. It must be proven first in order for selfdefense to be successfully pleaded. There can be no self-defense, whether complete or incomplete,
unless the victim had committed unlawful aggression against the person who resorted to selfdefense. 16 When the Court speaks of unlawful aggression, it is an actual physical assault, or at
least a threat to inflict real imminent injury, upon a person. There is an unlawful aggression on the
part of the victim when he puts the life, limb, or right of the person invoking self-defense in actual
or imminent danger. There must be actual physical force or actual use of a weapon. It is present
only when the one attacked faces real and immediate threat to his life. It must be continuous,
otherwise, it does not constitute aggression warranting self-defense.17
The question now is: was there unlawful aggression when Cristina killed her husband?
The Court answers in the affirmative.
The Court hesitates to share the observation of the RTC and the CA that Cristina failed to discharge
the burden of proving that unlawful aggression was present when she killed her husband.
Contrary to the conclusion of the CA that Gerrys aggression had already ceased when he was
disarmed, it is the Courts view that the aggression still continued. Her perceived peril to her life
continued and persisted until she put an end to it.
It must be noted that after she was able to take hold of the knife from her husband, he did not
stand down but, instead, continued to move towards her despite her plea that he should not come
nearer. He grabbed her by the arm which could have precipitated her well -grounded belief that her
life was still in danger if he would be able to wrest the weapon from her. It was not farfetched to
presume that, being stronger, he could have easily overpowered her and eventually killed her.
A similar situation was presented in the case of People v. Rabandaban18 (Rabandaban), wherein
the Court ruled that despite the fact that the accused succeeded in wresting the bolo from his wife,
he was still justified in using the weapon against her because his life was still in danger. The Court
explained:
xxx When appellant got possession of the bolo he already must have been in a precarious condition
because of his wounds, one of which was described by the sanitary inspector as "fatal" since the
large intestine came out of it. And appellant, we think, was justified in believing that his wife
wanted to finish him off because, according to the evidence, she struggled to regain possession of
the bolo after he had succeeded in wresting it from her. With the aggressor still unsubdued and
showing determination to fight to the finish, it would have been folly on the part of appellant, who
must already have been losing strength due to loss of blood, to throw away the bolo and thus give
his adversary a chance to pick it up and again use it against him.
Having the right to protect his life, appellant was not in duty bound to expose himself to such a
contingency.19
[Emphases Supplied]
In Rabandaban, the victim, instead of running away from the accused husband after the bolo was
wrested from her, continued to struggle with him to regain possession of the bolo. This fact,
together with her husbands compromised condition, being already badly wounded, justified him in
finally neutralizing his wife who was then determined in putting an end to his life. In the case at
bench, the unlawful aggression would have ceased if he just walked away from the scene
considering that Cristina had gained the upper hand, being the one in possession of the knife.
Instead, Gerry chose to ignore her plea not to come near her and continued moving towards her
without regard to his safety despite the fact that the knife was pointed towards his direction.
In both Rabandaban and the present case, the victims, despite having been disarmed, still posed a
threat to the lives of the accused. The danger to their lives persisted leaving them with no other
choice but to defend themselves lest they be the ones to be victimized.
In that situation, Cristina had reasons to believe that her life was still in danger. It is to be noted
that before she was able to take hold of the weapon, her husband held the same knife and pointed
it at her throat. So when he, who was taller and stronger, approached her and grabbed her by the
arm, it was instinctive for her to take the extreme precautionary measure by stabbing him before
he could get back the knife and make good his earlier threat of putting a hole in her throat.
Contrary to the trial courts assessment, she did not show aggression towards her husband when
she pushed him after he pointed the knife away from her. She was, in fact, manifesting a passive
attitude towards him when she just stood her ground, with the knife in hand, asking him not to
come near her.
It would have been a different story if Gerry, after dropping the knife, walked away and Cristina still
went after him. If that were the case, she could not assert self-defense. She was no longer acting in
self-defense but in retaliation for the earlier aggression. Retaliation is inconsistent with self-defense
and in fact belies it. In retaliation, the aggression that was begun by the injured party already
ceased when the accused attacked him; while in self -defense the aggression still existed when the
aggressor was injured by the accused.21
Now that unlawful aggression has already been established, it is well to consider the other two
requisites in order to determine whether the self-defense is complete or incomplete.
Reasonable Necessity of
the Means Employed
The requisite of reasonable necessity of the means employed is met if the person invoking selfdefense used a weapon or a manner equivalent to the means of attack used by the aggressor. The
reasonable necessity of the self-defense utilized by an accused is to defend himself depends upon
the nature or quality of the weapon, the physical condition, the character, the size and other
circumstances of the aggressor; as well as those of the person who invokes self-defense; and also
the place and the occasion of the assault. 22 Moreover, the nature and location of wounds are
considered important indicators whether or not to disprove a plea of self-defense.23
In the case at bench, the lone stab wound located on the victims chest supports the argument that
Cristina feared for her life and this fear impelled her to defend it by stabbing him. It was a
reasonable means chosen by her in view of the attending circumstances, to wit: that her stronger
husband, who had earlier pointed the said knife to her throat, approached her and grabbed her
arm, despite her plea that he refrain from coming near her; and that she had no other available
means or any less deadly weapon to repel the threat other than the knife in her hand. She did not
have the time or sufficient tranquillity of mind to think, calculate and choose the weapon to be
used. In predicaments like this, human nature does not act upon the processes of formal reason but
in obedience to the instinct of self-preservation. 24 When it is apparent that a person has
reasonably acted upon this instinct, it is the duty of the courts to sanction that act or to mitigate his
liability.25
Moreover, the fact that Gerry was no longer armed does not negate the reasonableness of the
means employed by Cristina. Perfect equality between the weapon used by the one defending
himself and that of the aggressor is not required.26 What the law requires is a rational equivalence,
in the consideration of which will enter as principal factors the emergency, the imminent danger to
which the accused is exposed, and the instinct more than reason, that moves or impels his defense;
and the proportionateness thereof does not depend upon the harm done, but upon the imminent
danger of such injury.27
Lack of Sufficient
Provocation
The last requisite to be considered is lack of sufficient provocation on the part of the person
defending himself. The Court cannot sustain the trial courts observation that it was Cristina who
provoked her husband when she suddenly pushed him. Her shoving him cannot be considered a
sufficient provocation proportionate to the act of aggression.28 She merely capitalized on a
window of opportunity, when her husband removed the knife away from her throat, to save herself
from what she had perceived to be a danger to her life. Anybody, in her situation would have acted
in the same reasonable way.
Flight as an Indication of
Guilt or Non-guilt
The CA took the fact of Cristinas flight and evasion of arrest for four
(4) years against her. To the appellate court, it belied her claim of innocence.
Under the attendant circumstances, the Court cannot subscribe to that
view.
Generally, flight, in the absence of a credible explanation, would be a circumstance from which an
inference of guilt might be established, for a truly innocent person would normally grasp the first
available opportunity to defend himself and assert his innocence.29 It has been held, however, that
non-flight may not be construed as an indication of innocence either. There is no law or dictum
holding that staying put is proof of innocence, for the Court is not blind to the cunning ways of a
wolf which, after a kill, may feign innocence and choose not to flee. 30 In Cristina's case, she
explained that she took flight for fear of her safety because of possible retaliation from her
husband's siblings.31 The Court finds such reason for her choice to flee acceptable. She did not hide
from the law but from those who would possibly do her harm.
The R TC and the CA might have some hesitation in accepting her explanation for her choice of
action. Nevertheless, under the circumstances, a cloud of uncertainty lingers. In such a case, it is
the duty of the Court to resolve the doubt in favor of the accused.
Considering that Cristina was justified in killing her husband under Article 11, paragraph 1 of the
RPC, she should be exonerated of the crime charged. For the same reason, the Court finds no act or
omission from which a civil liability may arise.
WHEREFORE, the appeal is GRANTED. The May 6, 2014 Decision of the Court of Appeals, in CA-G.R.
CR HC No. 05832, is REVERSED and SET ASIDE. The accused-appellant, Cristina Samson, is
ACQUITTED of the crime charged.
Let a copy of this Decision be furnished the Superintendent, Correctional Institution for Women,
Mandaluyong City. The Superintendent is DIRECTED to cause the immediate release of appellant,
unless she is being lawfully held for another cause and to report the action she has taken within five
( 5) days from receipt of this Decision.
2. People vs CA and Tangan

VOL. 352, FEBRUARY 23, 2001
599
People vs. Court of Appeals
G.R. No. 103613. February 23, 2001.*
PEOPLE OF THE PHILIPPINES, petitioner, vs. COURT OF APPEALS and ELADIO C. TANGAN, respondents.
G.R. No. 105830. February 23, 2001.*
ELADIO C. TANGAN, petitioner, vs. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.
Remedial Law; Criminal Procedure; Prosecution cannot avail at the same time of the remedies of special
civil action on certiorari, petition for review on certiorari or appeal in criminal cases.In the recent case of
People v. Velasco and Galvez, we held that the prosecution cannot avail of the remedies of special civil
action on certiorari, petition for review on certiorari, or appeal in criminal cases. Previous to that, we
categorically ruled that the writ of certiorari cannot be used by the State in a criminal
________________
* FIRST DIVISION.
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SUPREME COURT REPORTS ANNOTATED
case to correct a lower courts factual findings or evaluation of the evidence.
Criminal Law; Murder; Self-Defense; Incomplete self-defense is not considered as a justifying act but
merely a mitigating circumstance; Absent unlawful aggression, there can never be self-defense, complete
or incomplete.Incomplete self-defense is not considered as a justifying act, but merely a mitigating
circumstance; hence, the burden of proving the crime charged in the information is not shifted to the
accused. In order that it may be successfully appreciated, however, it is necessary that a majority of the
requirements of self-defense be present, particularly the requisite of unlawful aggression on the part of
the victim. Unlawful aggression by itself or in combination with either of the other two requisite suffices to
establish incomplete self-defense. Absent the unlawful aggression, there can never be self-defense,
complete or incomplete, because if there is nothing to prevent or repel, the other two requisites of
defense will have no basis.
Same; Same; Same; A mere threatening or intimidating attitude is not sufficient.A mere threatening or
intimidating attitude is not sufficient. Likewise, the exchange of insulting words and invectives between
Tangan and Generoso Miranda, no matter how objectionable, could not be considered as unlawful
aggression, except when coupled with physical assault. There being no lawful aggression on the part of
either antagonists, the claim of incomplete self-defense falls.
PETITIONS for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.

The Solicitor General for the People.
Singson, Valdez & Associates for Eladio Tangan.
YNARES-SANTIAGO, J.:
At around 11:30 p.m. of December 1, 1984, Navy Captain Eladio C. Tangan was driving alone on Roxas
Boulevard heading south. He had just come from Buendia Avenue on an intelligence operation. At the
same time, Generoso Miranda, a 29-year old optometrist, was driving his car in the same direction along
Roxas Boulevard with his uncle, Manuel Miranda, after coming from the Ra601

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mada Hotel. Generoso was moving ahead of Tangan. Suddenly, firecrackers were thrown in Generosos
way, causing him to swerve to the right and cut Tangans path. Tangan blew his horn several times.
Generoso slowed down to let Tangan pass. Tangan accelerated and overtook Generoso, but when he got in
front, Tangan reduced speed. Generoso tried four or five times to overtake on the right lane but Tangan
kept blocking his lane. As he approached Airport Road, Tangan slowed down to make a U-turn. Generoso
passed him, pulled over and got out of the car with his uncle. Tangan also stopped his car and got out. As
the Mirandas got near Tangans car, Generoso loudly retorted, Putang ina mo, bakit mo ginigitgit ang
sasakyan ko? Generoso and Tangan then exchanged expletives. Tangan pointed his hand to Generoso and
the latter slapped it, saying, Huwag mo akong dinuduro! Sino ka ba, ano ba ang pinagmamalaki mo?
Tangan countered, Ikaw, ano ang gusto mo? With this, Tangan went to his car and got his .38 caliber
handgun on the front seat. The subsequent events per account of the parties respective witnesses were
conflicting:
According to the prosecution witnesses, particularly, Mary Ann Borromeo, Rosalia Cruz and Manuel
Miranda, the accused pointed his gun at Generoso Miranda and when Manuel Miranda tried to intervene,
the accused pointed his gun at Manuel Miranda, and after that the accused pointed again the gun to
Generoso Miranda, the accused shot Generoso Miranda at a distance of about a meter but because the
arm of the accused was extended, the muzzle of the gun reached to about more or less one foot away
from the body of Generoso Miranda. The shot hit the stomach of Generoso Miranda causing the latter to
fall and while still conscious, Generoso Miranda told Manuel Miranda, his uncle, to get the gun. Manuel
Miranda grappled for the possession of the gun and during their grappling, Rosalia Cruz intervened and
took hold of the gun and after Rosalia Cruz has taken hold of the gun, a man wearing a red T-shirt took the
gun from her. The man in T-shirt was chased by Manuel Miranda who was able to get the gun where the
man in red T-shirt placed it.
On the other hand, the defense, particularly the accused and his witness by the name of Nelson Pante
claimed that after the gun was taken by the accused from inside his car, the Mirandas started to grapple
for possession of the gun and during the grappling, and while the two Mirandas were trying to wrest away
the gun from the accused, they fell down at the back of the car of the accused. According to the accused,
he lost the possession of the gun after falling at the back of his car and as soon as
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they hit the ground, the gun fell, and it exploded hitting Generoso Miranda.1
After the gun went off, Tangan ran away. Meanwhile, Generoso lay on the ground bloodied. His uncle,
Manuel, looked for the gun and ran after Tangan, joining the mob that had already pursued him. Tangan
found a policeman who allowed him to enter his patrol car. Manuel arrived and told the policeman that
Tangan had just shot his nephew. Then he went back to where Generoso lay and there found two ladies,
later identified as Mary Ann Borromeo and Rosalina Cruz, helping his nephew board a taxi. Manuel
suggested that Generoso be brought to the hospital in his car. He was rushed to the Philippine General
Hospital but he expired on the way.
Tangan was charged with the crime of murder with the use of an unlicensed firearm.2 After a
reinvestigation, however, the information was amended to homicide with the use of a licensed firearm,3
and he was separately charged with illegal possession of unlicensed firearm.4 On arraignment, Tangan
entered a plea of not guilty in
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1 Rollo in G.R. No. 105830, pp. 125-126.

2 Criminal Case No. T-17587; That on or about the 1st day of December, 1984, in the Municipality of
Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the abovenamed
with intent to kill, with treachery and with the use of an unlicensed firearm, did then and there willfully,
unlawfully and feloniously attack, assault and shot Generoso Miranda III, thereby inflicting upon his mortal
gunshot wounds which directly caused his death, contrary to law. (Rollo in G.R. No. 105830, p. 12).
3 The Amended Information reads: That on or about the 1st day of December, 1984, in the Municipality of
Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the abovenamed
with intent to kill and armed with a gun, did then and there willfully, unlawfully and feloniously attack,
assault and shot with the said firearm (licensed) one Generoso Miranda III, thereby hitting the latter in the
abdomen and inflicting upon him mortal gunshot wounds which directly caused his death, contrary to
law. (Rollo in G.R. No. 105830, p. 12).
4 Criminal Case No. T-19350: That on or about the 1st day of December, 1984, in the Municipality of
Paraaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court the above-named
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the homicide case, but moved to quash the information for illegal possession of unlicensed firearm on
various grounds. The motion to quash was denied, whereupon he filed a petition for certiorari with this
Court.5 On November 5, 1987, said petition was dismissed and the joint trial of the two cases was
ordered.6
During the trial, the prosecution and the defense stipulated on the following: that the amount of
P126,000.00 was incurred for the funeral and burial expenses of the victim;7 that P74,625.00 was incurred
for attorneys fees; and that the heirs of Generoso suffered moral damages, the amount of which is left for
the courts to determine. After trial, the lower court acquitted Tangan of illegal possession of firearm, but
convicted him of homicide. The privileged mitigating circumstance of incomplete self-defense and the
ordinary mitigating circumstances of sufficient provocation on the part of the offended party and of
passion and obfuscation were appreciated in his favor; consequently, the trial court ordered him to suffer
an indeterminate penalty of two (2) months of arresto mayor, as minimum, to two (2) years and four (4)
months of prision correccional, as maximum, and to indemnify the heirs of the victim.8
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accused willfully and feloniously have in possession, custody and control a Smith and Wesson Cal. 38
revolver with Serial No. C61898 (Yoke No. 7566) and five (5) live ammunitions and one (1) empty shell
without having procured the corresponding license or permit therefor and which the said accused used in
the commission of the crime of homicide against the person of Generoso Miranda III, contrary to law.
(Rollo in G.R. No. 105830, p. 13).
5 G.R. No. L-73963.
6 Tangan v. People, 155 SCRA 435 (1987).
7 Rollo, p. 105.
8 The dispositive portion of the Regional Trial Court Decision dated August 16, 1989 penned by Judge x x x
x reads: WHEREFORE, premises considered in Criminal Case No. 178587 for the crime of Homicide defined
and penalized under Article 249 of the Revised Penal Code with the attendance of the privileged mitigating
circumstances of incomplete self defense and ordinary mitigating circumstances of sufficient provocation
on the part of the offended party, and passion and obfuscation. For which reason, the accused is hereby
sentenced to suffer an indeterminate prison term of two (2) months of ARRESTO MAYOR, as minimum to
two (2)
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Tangan was released from detention after the promulgation of judgment9 and was allowed bail in the
homicide case.
Private complainants, the heirs of Generoso Miranda, filed a petition for review with this Court, docketed
as G.R. No. 102677, challenging the civil aspect of the court a quos decision, but the same was dismissed
for being premature. On the other hand, Tangan appealed to the Court of Appeals, which affirmed the
judgment of the trial court but increased the award of civil indemnity to P50,000.00.10 His subsequent
motion for reconsideration and a
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years and four (4) months of PRISION CORRECCIONAL, as maximum, with all the accessories of the law.
The preventive confinement of the accused shall be credited full time in his favor.
The accused is further ordered to pay to the heirs of Generoso Miranda namely, Ruby Miranda and Maria
Miranda the following:
1. P30,000.00 for and as indemnity for causing the death of Generoso Miranda;
2. P42,000.00 for funeral burial and other related expenses;
3. P5,000.00 as attorneys fees.
Costs against the accused.
With respect to Criminal Case No. 19350 for Illegal Possession of Firearms and Ammunitions Used in the
Commission of Homicide, and finding the accused innocent to the charge against him, he is hereby
ACQUITTED. (Rollo in G.R. No. 105830, p. 14).
9 Illegal possession of firearms and homicide with the use of unlicensed firearm are generally non-bailable
offenses under the 1973 Constitution which was in force at the time of the commission of the crimes
herein.
10 The dispositive portion of the CA Decision dated October 30, 1991, penned by Justice Cacdac, Jr. with
Justices de Pano, Jr. and Guingona, concurring consisting of 51-single space pages reads: WHEREFORE, the
decision appealed from is hereby MODIFIED with respect to the indemnity for the death of the victim
Generoso Miranda in the amount of P50,000.00.
In all other respects, the appealed decision is affirmed. Costs against accused-appellant.
SO ORDERED. (Rollo in G.R. No. 105830, p. 131).
605

605
motion to cite the Solicitor General in contempt were denied by the Court of Appeals.11
The Office of the Solicitor General, on behalf of the prosecution, alleging grave abuse of discretion, filed a
petition for certiorari under Rule 65, docketed as G.R. No. 103613, naming as respondents the Court of
Appeals and Tangan, where it prayed that the appellate courts judgment be modified by convicting
accusedappellant of homicide without appreciating in his favor any mitigating circumstance.12
Subsequently, the Office of the Solicitor General, this time acting for public respondent Court of Appeals,
filed a motion for extension to file comment to its own petition for certiorari.13 Discovering its glaring
error, the Office of the Solicitor General later withdrew its motion for extension of time.14 Tangan filed a
Reply asking that the case be submitted for decision.15
Meanwhile, Tangan filed a separate petition for review under Rule 45, docketed as G.R. No. 105830.16
Since the petition for certiorari filed by the Solicitor General remained unresolved, the two cases were
consolidated.17 The Office of the Solicitor General filed a manifestation in G.R. No. 105830, asking that it
be excused from filing a comment to Tangans petition for review, in order to avoid taking contradictory
positions.18
________________
11 CA Resolution promulgated June 23, 1992 penned by Justice De Pano, Jr., with Justices Guingona and
Garcia, concurring; Rollo in G.R. No. 105830, pp. 133-136.
12 Petition for Certiorari filed by the Solicitor General (Francisco Chavez); Rollo in G.R. No. 103613, pp.
105-106.
13 The several motions for extension filed by the Office of the Solicitor General were signed by Solicitor
General Ramon S. Desuasido and the other by Acting Solicitor General Eduardo G. Montenegro.
14 Comment signed by Solicitor General Montenegro dated July 22, 1992; Rollo in G.R. No. 103613, p. 407.
15 Reply to Comment dated September 28, 1992 filed by private respondent in G.R. No. 103613, Rollo, p.
412.
16 Petition for Review, pp. 1-71; Rollo in G.R. No. 105830, pp. 7-77.
17 Rejoinder in G.R. No. 103613 of the new Solicitor General (Raul Goco) dated November 25, 1992, p. 3;
Rollo, p. 422.
18 Manifestation and Motion by the Office of the Solicitor General (Raul Goco) dated December 2, 1992, p.
3; Rollo in G.R. No. 105830, p. 264.
606
606
In the recent case of People v. Velasco and Galvez,19 we held that the prosecution cannot avail of the
remedies of special civil action on certiorari, petition for review on certiorari, or appeal in criminal cases.
Previous to that, we categorically ruled that the writ of certiorari cannot be used by the State in a criminal
case to correct a lower courts factual findings or evaluation of the evidence.20
Rule 117, Section 7, of the Revised Rules of Criminal Procedure, is clear:
Former conviction or acquittal; double jeopardy.When an accused has been convicted or acquitted, or
the case against him dismissed or otherwise terminated without his express consent by a court of
competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and
substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or
acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense
charged, or for any attempt to commit the same Or frustration thereof, or for any offense which
necessarily includes or is necessarily included in the offense charged in the former complaint or
information.
However, the conviction of the accused shall not be a bar to another prosecution for an offense which
necessarily includes the offense charged in the former complaint or information under any of the following
instances:
(a) the graver offense developed due to supervening facts arising from the same act or omission
constituting the former charge;
(b) the facts constituting the graver charge became known or were discovered only after a pleas was
entered in the former complaint or information; or
(c) the plea of guilty to the lesser offense was made without the consent of the fiscal and of the offended
party, except as provided in section 1(f) of Rule 116.
In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he
shall be credited with the same in the event of conviction for the graver offense.
_______________
19 G.R No. 127444, September 13, 2000, 340 SCRA 207.

20 Soriano v. Hon. Angeles, G.R. No. 109920, August 31, 2000, 339 SCRA 366.
607

607
Based on the foregoing, the Solicitor Generals petition for certiorari under Rule 65, praying that no
mitigating circumstance be appreciated in favor of accused-appellant and that the penalty imposed on him
be correspondingly increased, constitutes a violation of Tangans right against double jeopardy and should
be dismissed.
We now come to the petition for review filed by Tangan. It is noteworthy that during the trial, petitioner
Tangan did not invoke self-defense but claimed that Generoso was accidentally shot. As such, the burden
of proving self-defense,21 which normally would have belonged to Tangan, did not come into play.
Although Tangan must prove his defense of accidental firing by clear and convincing evidence,22 the
burden of proving the commission of the crime remained in the prosecution.
Both the trial court and the Court of Appeals appreciated in favor of Tangan the privileged mitigating
circumstance of incomplete self-defense under Article 13(1), in relation to Article 11(1), of the Revised
Penal Code, to wit:
ARTICLE 11. Justifying Circumstances.The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur:
First. Unlawful aggression.
Second. Reasonable necessity of the means employed to prevent or repel it.
Third. Lack of sufficient provocation on the part of the person defending himself.
xxx
xxx
xxx
ARTICLE 13 Mitigating Circumstances.The following are mitigating circumstances:

1. Those mentioned in the preceding Chapter, when all the requisites necessary to justify the act or to
exempt from criminal liability in the respective cases are not attendant.
_______________
21 People v. Galapin, 293 SCRA 474 (1998); People v. Timblor, 285 SCRA 64 (1998).
22 People v. Arroyo, 111 SCRA 689 (1982); People v. Capitania, 49 Phil. 475.
608
608
Incomplete self-defense is not considered as a justifying act, but merely a mitigating circumstance; hence,
the burden of proving the crime charged in the information is not shifted to the accused.23 In order that it
may be successfully appreciated, however, it is necessary that a majority of the requirements of selfdefense be present, particularly the requisite of unlawful aggression on the part of the victim.24 Unlawful
aggression by itself or in combination with either of the other two requisite suffices to establish incomplete
selfdefense. Absent the unlawful aggression, there can never be selfdefense, complete or incomplete,25
because if there is nothing to prevent or repel, the other two requisites of defense will have no basis.26
There is no question that the bullet which hit the victim was fired from the caliber .38, which was issued to
Tangan by the Philippine Navy. The cause of death was severe hemorrhage secondary to gunshot wound of
the abdomen, caused by the bullet fired from a gun of the said caliber. The prosecution claimed that
Tangan shot the victim point-blank in the stomach at a distance of about one foot. On the other hand,
Tangan alleged that when he grappled with Generoso and Manuel Miranda for possession of the gun, it fell
to the ground and accidentally fired, hitting the victim.
When the testimonies of witnesses in open court are conflicting in substantial points, the calibration of the
records on appeal becomes difficult. It is the word of one party against the word of the other. The
reviewing tribunal relies on the cold and mute pages of the records, unlike the trial court which had the
unique opportunity of observing first-hand that elusive and incommunicable evi_______________
23 Rule 119, Section 3. Order of trial.The trial shall proceed in the following order:
xxx
xxx
xxx
(e) However, when the accused admits the act or omission charged in the complaint or information but
interposes a lawful defense, the order of trial may be modified accordingly.
24 See People v. Navarro, 7 Phil. 713; People v. Martin, 89 Phil. 18.
25 People v. Sazon, 189 SCRA 700 (1990); Ortega v. Sandiganbayan, 170 SCRA 38 (1989); People vs.
Picardal, 151 SCRA 170 (1987).
26 People v. Yuman, 61 Phil. 786.
609

609
dence of the witness deportment on the stand while testifying.27 The trial courts assessments of the
credibility of witnesses is accorded great weight and respect on appeal and is binding on this Court,28
particularly when it has not been adequately demonstrated that significant facts and circumstances were
shown to have been overlooked or disregarded by the court below which, if considered, might affect the
outcome hereof.29 The rationale for this has been adequately explained in that,
The trial court has the advantage of observing the witnesses through the different indicators of
truthfulness or falsehood, such as the angry flush of an insisted assertion or the sudden pallor of a
discovered lie or the tremulous mutter of a reluctant answer or the forthright tone of a ready reply; or the
furtive glance, the blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone,
the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the
solemnity of an oath, and carriage and mien.30
Equally, when a person fabricates a story, he usually adopts a simple account because a complex one might
lead to entanglement from which he may find it hard to extricate himself. Along the same line, the
experience of the courts and the general observations of humanity teach us that the natural limitations of
our inventive faculties are such that if a witness delivers in court a false narrative containing numerous
details, he is almost certain to fall into fatal inconsistencies, to make statements which can be readily
refuted, or to expose in his demeanor the falsity of his message.31 Aside from this, it is not also unusual
that the witness may have been coached before he is called to the stand to testify.
_______________
27 People v. Mahinay, G.R. No. 122485, February 1, 1999, 302 SCRA 455.
28 People v. Mamalayan, 280 SCRA 748 (1997); People v. Jagolingay, 280 SCRA 768 (1997); Rabaja v. CA,
280 SCRA 290 (1997); Padilla v. CA 269 SCRA 402 (1997).
29 People v. Dizon, G.R. Nos. 126044-45, July 2, 1999, 309 SCRA 669.
30 People v. Alitagtag, G.R. Nos. 124449-51, June 29, 1999, 309 SCRA 325 citing People v. Quijada, 259
SCRA 191, 212-213 (1996).
31 People v. San Juan, G.R. No. 130969, February 29, 2000, 326 SCRA 786 citing People v. Gana, Jr., 65
SCRA 260 (1996) and US v. Burns, 41 Phil. 418.
610
610

Somewhere along the painstaking review of the evidence on record, one version rings the semblance of
truth, not necessarily because it is the absolute truth, but simply because it is the best approximation of
the truth based on the declarations of witnesses as corroborated by material evidence. Perforce, the other
version must be rejected. Truth and falsehood, it has been well said, are not always opposed to each other
like black and white, but oftentimes, and by design, are made to resemble each other so as to be hardly
distinguishable.32 Thus, after analyzing the conflicting testimonies of the witnesses, the trial court found
that:
When the accused took the gun from his car and when he tried to get out of the car and the two Mirandas
saw the accused already holding the gun, they started to grapple for the possession of the gun that went
off hitting Generoso Miranda at the stomach. The court believes that contrary to the testimony of the
accused, he never lost possession of the gun for if he did and when the gun fell to the ground, it will not
first explode or if it did, somebody is not holding the same, the trajectory of the bullet would not be
perpendicular or horizontal.33
The Court of Appeals agreed
The finding of the lower court that Generoso Miranda III was shot while the accused and the Mirandas
were grappling for the possession of the gun immediately after the accused had taken his gun from inside
his car and before the three allegedly fell to the ground behind the car of the accused is borne out by the
record. The court also agrees with the court below that it was the accused-appellant who shot and killed
Generoso Miranda III. If the accused-appellant did not shoot Generoso III during the scuffle, he-would have
claimed accidental killing by alleging that his gun exploded during the scuffle instead of falsely testifying
that he and the Mirandas fell to the ground behind his car and the gun exploded in the possession of
Manuel Miranda. The theory of the prosecution that the shooting took place while the three were
grappling for the possession of the gun beside the car of appellant is completely in harmony with the
findings and testimony of Dr. Ibarrola regarding the relative position of the three and the precarious
nearness of the victim when accused-appellant pulled the trigger of his gun. Dr. Ibarrola explained that the
gun
________________
32 Johnson v. Emerson (1871).

33 Rollo in G.R. No. 105830, p. 126.
611

611
was about two (2) inches from the entrance wound and that its position was almost perpendicular when it
was fired. It was in fact the closeness of the Mirandas vis--vis appellant during the scuffle for the gun that
the accused-appellant was compelled to pull the trigger in answer to the instinct of self-preservation.34
No convincing reason appears for the Court to depart from these factual findings, the same being ably
supported by the evidence on record. In violent deaths caused by gunshot wounds, the medical report or
the autopsy on the cadaver of the victim must as much as possible narrate the observations on the wounds
examined. It is material in determining the truthfulness of the events narrated by the witnesses presented.
It is not enough that the witness looks credible and assumes that he indeed witnessed the criminal act. His
narration must be substantiated by the physical evidence available to the court.
The medical examiner testified that the distance between the muzzle of the gun and the target was about
2 inches but definitely not more than 3 inches. Based on the point of exit and the trajectory transit of the
wound, the victim and the alleged assailant were facing each other when the shot was made and the
position of the gun was almost perpendicular when fired.35 These findings disprove Tangans claim of
accidental shooting. A revolver is not prone to accidental firing because of the nature of its mechanism,
unless it was already first cocked and pressure was exerted on the trigger. If it were uncocked, then
considerable pressure had to be applied on the trigger to fire the revolver.36
Having established that the shooting was not accidental, the next issue to be resolved is whether Tangan
acted in incomplete self-defense. The element of unlawful aggression in self-defense must not come from
the person defending himself but from the victim.
________________
34 CA Decision, dated October 30, 1991, p. 49; Rollo in G.R. No. 105830, p. 129.
35 Rollo, p. 84.
36 People v. Reyes, 69 SCRA 475 (1976).
612
612
A mere threatening or intimidating attitude is not sufficient.37 Likewise, the exchange of insulting words
and invectives between Tangan and Generoso Miranda, no matter how objectionable, could not be
considered as unlawful aggression, except when coupled with physical assault.38 There being no lawful
aggression on the part of either antagonists, the claim of incomplete self-defense falls. Tangan
undoubtedly had possession of the gun, but the Mirandas tried to wrestle the gun from him. It may be said
that the former had no intention of killing the victim but simply to retain possession of his gun. However,
the fact that the victim subsequently died as a result of the gunshot wound, though the shooter may not
have the intention to kill, does not absolve him from culpability. Having caused the fatal wound, Tangan is
responsible for all the consequences of his felonious act. He brought out the gun, wrestled with the
Mirandas but anticipating that the gun may be taken from him, he fired and fled.
The third requisite of lack of sufficient provocation on the part of the person defending himself is not
supported by evidence. By repeatedly blocking the path of the Mirandas for almost five times, Tangan was
in effect the one who provoked the former. The repeated blowing of horns, assuming it was done by
Generoso, may be irritating to an impatient driver but it certainly could not be considered as creating so
powerful an inducement as to incite provocation for the other party to act violently.
The appreciation of the ordinary mitigating circumstances of sufficient provocation and passion and
obfuscation under Article 13, paragraphs 4 and 6,39 have no factual basis. Sufficient provoca________________
37 People v. Pasco, Jr., 137 SCRA 137 (1985); People v. Rey, 172 SCRA 149 (1989).
38 U.S. v. Carrero, 9 Phil. 544.
39 Article 13. The following are mitigating circumstances:
xxx
xxx
xxx
4. that sufficient provocation or threat on the part of the offended party immediately preceded the act.
xxx
xxx
xxx
6. that of having acted upon an impulse so powerful as naturally to have produced passion or obfuscation.
613

613
tion as a requisite of incomplete self-defense is different from sufficient provocation as a mitigating
circumstance. As an element of self-defense, it pertains to its absence on the part of the person defending
himself; while as a mitigating circumstance, it pertains to its presence on the part of the offended party.
Besides, only one mitigating circumstance can arise out of one and the same act.40 Assuming for the sake
of argument that the blowing of horns, cutting of lanes or overtaking can be considered as acts of
provocation, the same were not sufficient. The word sufficient means adequate to excite a person to
commit a wrong and must accordingly be proportionate to its gravity.41 Moreover, Generosos act of
asking for an explanation from Tangan was not sufficient provocation for him to claim that he was
provoked to kill or injure Generoso.42
For the mitigating circumstance of passion and obfuscation to be appreciated, it is required that (1) there
be an act, both unlawful and sufficient to produce such a condition of mind; and (2) said act which
produced the obfuscation was not far removed from the commission of the crime by a considerable length
of time, during which the perpetrator might recover his normal equanimity.43
In the case at bar, Tangan could not have possibly acted upon an impulse for there was no sudden and
unexpected occurrence which would have created such condition in his mind to shoot the victim. Assuming
that his path was suddenly blocked by Generoso Miranda due to the firecrackers, it can no longer be
treated as a startling occurrence, precisely because he had already passed them and was already the one
blocking their path. Tangans acts were done in the spirit of revenge and lawlessness, for which no
mitigating circumstance of passion or obfuscation can arise.
With respect to the penalty, under the laws then existing, homicide was penalized with reclusion
temporal,44 but if the homicide
_______________
40 People v. delos Santos, 85 Phil. 870.

41 People v. Nabora, 73 Phil. 434.
42 See People v. Laude, 58 Phil. 933.
43 Reyes, The Revised Penal Code, p. 272 (1998).
44 Article 249, Revised Penal Code. The penalty for homicide was not changed by R.A. No. 7659 though
another law (Section 10, R.A. No. 7610)
614
614
was committed with the use of an unlicensed firearm, the penalty shall be death.45 The death penalty,
however, cannot be imposed on Tangan because in the meantime, the 1987 Constitution proscribed the
imposition of death penalty; and although it was later restored in 1994, the retroactive application of the
death penalty is unfavorable to him. Previously, the accused may be prosecuted for two crimes: (1)
homicide or murder under the Revised Penal Code and (2) illegal possession of firearm in its aggravated
form under P.D. 1866.46
P.D. 1866 was amended by R.A. No. 8294,47 which provides that if an unlicensed firearm is used in murder
or homicide, such use of unlicensed firearm shall be appreciated as an aggravating circumstance and no
longer considered as a separate offense,48 which means that only one offense shall be punishedmurder
or homicide. However, this law cannot apply retroactively because it will result in the imposition on Tangan
of the maximum period of the penalty. Moreover, under Rule 110, Section 8 of the Revised Rules of
Criminal Procedure,49 the aggravating circumstance must be alleged in the information. Being favorable,
this new rule can be given retroactive effect as they are applicable to pending cases.50 In any case, Tangan
was acquitted of the illegal possession case. provides that if the victim is under 12 years of age, the penalty
shall be one degree higher.
________________
45 P.D. 1866.
46 Pursuant to the old provisions of Section 1, P.D. 1866 and the courts ruling in People v. Quijada, 328
Phil. 505; 259 SCRA 191 (1996).
47 An act amending the provisions of P.D. 1866, as amended, entitled Codifying the laws on
illegal/unlawful possession, manufacture, dealing in, acquisition or distribution of firearms, ammunitions,
or explosives or instruments used in the manufacture of firearms, ammunitions or explosives and imposing
stiffer penalties for certain violations thereof and for relevant purposes. (Took effect July 6, 1997).
48 People v. Nepomuceno, Jr., G.R. No. 130800, June 29, 1999, 309 SCRA 466 citing People v. Bergante,
286 SCRA 629 (1998); People v. Narvasa, 298 SCRA 637 (1998); People v. Molina, 292 SCRA 742 (1998).
49 Took effect December 1, 2000.
50 See Oriental Assurance v. Solidbank, G.R. No. 139882, August 16, 2000, 338 SCRA 303.
615

615
Consequently, Tangan should be sentenced to suffer the penalty of reclusion temporal. Pursuant to Article
64 of the Revised Penal Code, if the prescribed penalty is composed of three periods, and there is neither
mitigating nor aggravating circumstance, the medium period shall be applied. Applying the Indeterminate
Sentence law, the maximum of the indeterminate penalty shall be that which, in view of the attendant
circumstances, may be properly imposed, which in this case is reclusion temporal medium with an
imprisonment range of from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years
and four (4) months. The minimum of the indeterminate sentence shall be the next lower degree which is
prision mayor with a range of from six (6) years and one (1) day to twelve (12) years.51 Hence, petitioner
Tangan is sentenced to an indeterminate penalty of six (6) years and one (1) day of prision mayor, as
minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum.
The death indemnity of P30,000.00 was correctly increased by the appellate court to P50,000.00 in line
with jurisprudence.52 Moral damages are awarded in criminal cases involving injuries if supported by
evidence on record,53 but the stipulation of the parties in this case substitutes for the necessity of
evidence in support thereof. Though not awarded below, the victims heirs are entitled to moral damages
in the amount of P50,000.00 which is considered reasonable considering the pain and anguish brought by
his death.54
WHEREFORE, the petition in G.R. No. 103613 is DISMISSED. The appealed decision subject of G.R. No.
105830 is AFFIRMED with the following MODIFICATIONS:
(1) Tangan is sentenced to suffer an indeterminate penalty of six (6) years and one (1) day of prision mayor,
as mini
________________
51 People v. Acuram, G.R. No. 117954, April 27, 2000, 331 SCRA 129.
52 People v. Pedroso, G.R. No. 125128, July 19, 2000, 336 SCRA 163.
53 People v. Cayago, G.R. No. 128827, August 18, 1999, 312 SCRA 623 citing People v. Arguelles, 222 SCRA
166 (1993).
54 People v. Reynaldo Langit, G.R. Nos. 134757-58, August 4, 2000, 337 SCRA 323; People v. Mindanao,
G.R. No. 123095, July 6, 2000, 335 SCRA 200.
616
616
Philippine Bank of Communications vs. Court of Appeals
mum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum, with all
the accessory penalties.
(2) Tangan is ordered to pay the victims heirs P50,000.00 as civil indemnity, P42,000.00 as funeral and
burial expenses, P5,000.00 as attorneys fees, and P50,000.00 as moral damages.
SO ORDERED.
Davide, Jr. (C.J.), Puno, Kapunan and Pardo, JJ., concur.
Petition in G.R. No. 103613 dismissed, while in G.R. No. 105830 affirmed with modifications.
Note.The absence of unlawful aggression negates the existence of self-defense. (People vs. Bautista, 312
SCRA 475 [1999])
o0o
3. People vs Narvaez
VOL. 121, APRIL 20, 1983
389
People vs. Narvaez
Nos. L-33466-67. April 20, 1983.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MAMERTO NARVAEZ, defendant-appellant.
Criminal Law; The act of the victims of ordering and actually fencing off the house and rice mill of the
accused constitutes unlawful aggression against property rights.The actuation of deceased Fleischer in
angrily ordering the continuance of the fencing would
_______________
* EN BANC.
390
390
People vs. Narvaez
have resulted in the further chiselling of the walls of appellants house as well as the closure of the access
to and from his house and rice millwhich were not only imminent but were actually in progress. There is
no question, therefore, that there was aggression on the part of the victims: Fleischer was ordering, and
Rubia was actually participating in the fencing. This was indeed aggression, not on the person of appellant,
but on his property rights.
Same; Lease; Where the landlord had given his tenant up to December 31, 1968 within which to vacate the
land, the former should have allowed the latter the peaceful enjoyment of the leased and not fenced-off
and chiselled the estate and house of the latter before the said time. In so doing the landlord committed
an unlawful aggression.In any case, Fleischer had given him up to December 31, 1968 (Exh. 10, p. 2,
Defense Exhibits) within which to vacate the land. He should have allowed appellant the peaceful
enjoyment of his properties up to that time, instead of chiselling the walls of his house and closing
appellants entrance and exit to the highway.
Same; Same; Same; Property.Conformably to the foregoing provisions, the deceased had no right to
destroy or cause damage to appellants house, nor to close his accessibility to the highway while he was
pleading with them to stop and talk things over with him. The assault on appellants property, therefore,
amounts to unlawful aggression as contemplated by law.
Same; Same; Same; Same; Same.In the case at bar, there was an actual physical invasion of appellants
property which he had the right to resist, pursuant to Art. 429 of the Civil Code of the Philippines.
Same; Shooting of the victims by the appellant from the window of his house while the former were
proceeding with the fencing off of appellants rented estate despite the latters plea to stop the same is
disproportionate to the physical aggression of the victims.The reasonableness of the resistance is also a
requirement of the justifying circumstance of self defense or defense of ones rights under paragraph 1 of
Article 11, Revised Penal Code. When the appellant fired his shotgun from his window, killing his two
victims, his resistance was disproportionate to the attack.
Same; Appellant who was sleeping when the victims chiselled his house and fenced off his estate and who
asked them to stop doing
391
VOL. 121, APRIL 20, 1983

391
People vs. Narvaez
so is not guilty of sufficient provocation when he shot the victims who ignored his plea.WE find,
however, that the third element of defense of property is present, i.e., lack of sufficient provocation on the
part of appellant who was defending his property. As a matter of fact, there was no provocation at all on
his part, since he was asleep at first and was only awakened by the noise produced by the victims and their
laborers. His plea for the deceased and their men to stop and talk things over with him was no provocation
at all.
Same; Treachery cannot be appreciated where provocation came from the deceased.The crime
committed is homicide on two counts. The qualifying circumstance of treachery cannot be appreciated in
this case because of the presence of provocation on the part of the deceased.
Same; Treachery is not present where the slayer acted instantaneously.Moreover, in order to appreciate
alevosia, it must clearly appear that the method of assault adopted by the aggressor was deliberately
chosen with a special view to the accomplishment of the act without risk to the assailant from any defense
that the party assailed might have made. This cannot be said of a situation where the slayer acted
instantaneously x x x (People vs. Caete, 44 Phil. 481).
Same; Evidence; Laborer employed by victim is an obviously biased witness.Moreover, the obvious bias
of witness Crisanto Ibaez, as a laborer of the deceased Davis Fleischer, neutralizes his credibility.
Same; Where there is no evidence of planning or preparation to kill, evident premeditation cannot be
appreciated.Since in the case at bar, there was no direct evidence of the planning or preparation to kill
the victims nor that the accused premeditated the killing, and clung to his premeditated act, the trial
courts conclusion as to the presence of such circumstance may not be endorsed. Evident premeditation is
further negated by appellant pleading with the victims to stop the fencing and destroying his house and to
talk things over just before the shooting.
Same; There is passion/obfuscation where the accused awoke to find out that his house is being chiselled
and fenced off.Likewise, WE find that passion and obfuscation attended the commission of the crime.
The appellant awoke to find his house being damaged and
392
392
People vs. Narvaez
its accessibility to the highway as well as of his rice mill bodega being closed. Not only was his house being
unlawfully violated; his business was also in danger of closing down for lack of access to the highway.
These circumstances, coming so near to the time when his first house was dismantled, thus forcing him to
transfer to his only remaining house, must have so aggravated his obfuscation that he lost momentarily all
reason causing him to reach for his shotgun and fire at the victims in defense of his rights. Considering the
antecedent facts of this case, where appellant had thirty years earlier migrated to this so-called land of
promise with dreams and hopes of relative prosperity and tranquility, only to find his castle crumbling at
the hands of the deceased, his dispassionate plea going unheededall these could be too much for any
manhe should be credited with this mitigating circumstances.
Same; Penalty; Where there is incomplete self-defense the accused is entitled to a penalty lower by one or
two degrees. The same may be further reduced where there are two mitigating circumstances.Article
249 of the Revised Penal Code prescribes the penalty for homicide as reclusion temporal. Pursuant to
Article 69, supra, the penalty lower by one or two degrees shall be imposed if the deed is not wholly
excusable by reason of the lack of some of the conditions required to justify the same. Considering that the
majority of the requirements for defense of property are present, the penalty may be lowered by two
degrees, i.e., to prision correccional. And under paragraph 5 of Article 64, the same may further be
reduced by one degree, i.e., arresto mayor, because of the presence of two mitigating circumstances and
no aggravating circumstance.
Same; Damages; Civil liability of accused shall be reduced where the victims contributed to the gravity of
the reaction of the accused.The civil liability of the appellant should be modified. In the case of Zulueta
vs. Pan American World Airways (43 SCRA 397), the award for moral damages was reduced because the
plaintiff contributed to the gravity of defendants reaction. In the case at bar, the victims not only
contributed but they actually provoked the attack by damaging appellants properties and business.
Considering appellants standing in the community, being married to a municipal councilor, the victims
actuations were apparently designed to humiliate him and destroy his reputation. The records disclose that
his wife, councilor Feliza Narvaez, was also charged in these two cases and detained without bail despite
the absence of evidence linking her to the killings. She was dropped as a defendant only upon motion of
the prosecution dated October 31, 1968.
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Same; Same; Inordinate desire of owners/officers of a company with large landholdings already to acquire
more lands thereby uprooting land settlers should be taken to account in reducing the civil liability of the
accused for homicide.Moreover, these cases arose out of an inordinate desire on the part of Fleischer
and Company, despite its extensive landholdings in a Central Visayan province, to extend its accumulation
of public lands to the resettlement areas of Cotabato. Since it had the capabilityfinancial and
otherwiseto carry out its land accumulation scheme, the lowly settlers, who uprooted their families from
their native soil in Luzon to take advantage of the governments resettlement program, but had no
sufficient means to fight the big landowners, were the ones prejudiced. Thus, the moral and material
suffering of appellant and his family deserves leniency as to his civil liability.
Same; R.A. 5465 which abolished subsidiary imprisonment for non-payment of civil indemnity is favorable
to the accused and is given retroactive effect.Furthermore, Article 39 of the Revised Penal Code requires
a person convicted of prision correccional or arresto mayor and fine who has no property with which to
meet his civil liabilities to serve a subsidiary imprisonment at the rate of one (1) day for each P2.50.
However, the amendment introduced by Republic Act No. 5465 on April 21, 1969 made the provisions of
Art. 39 applicable to fines only and not to reparation of the damage caused, indemnification of
consequential damages and costs of proceedings. Considering that Republic Act 5465 is favorable to the
accused who is not a habitual delinquent, it may be given retroactive effect pursuant to Article 22 of the
Revised Penal Code.
Gutierrez, J., separate opinion; dissenting in part:
Criminal Law; Defense of property to be available in prosecutions for murder or homicide must be coupled
with an attack on the person defending it which is not present in the case at bar.Defense of property is
not of such importance as the right to life and defense of property can only be invoked when it is coupled
with some form of attack on the person of one entrusted with said property. The defense of property,
whether complete or incomplete, to be available in prosecutions for murder or homicide must be coupled
with an attack by the one getting the property on the person defending it.
Same; Same.In the case now before Us, there is absolutely no evidence that an attack was attempted,
much less made upon the per394
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son of appellant. The mere utterance No, gademit, proceed, go ahead is not the unlawful aggression
which entitles appellant to the plea of self-defense. I agree with the majority opinion that the crime is
homicide but without any privileged mitigating circumstance.
APPEAL from the decision of the Court of First Instance of South Cotabato, Br. I.

The Solicitor General for plaintiff-appellee.
Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.
MAKASIAR, J.:
This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch I, in Criminal
Cases Nos. 1815 and 1816 for murder which, after a joint trial, resulted in the conviction of the accused in
a decision rendered on September 8, 1970, with the following pronouncement:
Thus, we have a crime of MURDER qualified by treachery with the aggravating circumstance of evident
premeditation offset by the mitigating circumstance of voluntary surrender. The proper penalty imposable,
therefore, is RECLUSION PERPETUA (Arts. 248 and 64, Revised Penal Code).
Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the crime of murder,
(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION PERPETUA, to indemnify the heirs of
the deceased Davis Q. Fleischer in the sum of P12,000.00 as compensatory damages, P10,000.00 as moral
damages, P2,000.00 as attorneys fees, the offended party having been represented by a private
prosecutor, and to pay the costs;
(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION PERPETUA, to indemnify the heirs of
the deceased Flaviano Rubia in the sum of P12,000.00 as compensatory damages, P10,000.00 as moral
damages, P2,000.00 as attorneys fees, the offended party having been represented by a private
prosecutor, and to pay the costs (p. 48, rec.).
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The facts are summarized in the Peoples brief, as follows:
At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Verano and Cesar Ibaez,
together with the two deceased Davis Fleischer and Flaviano Rubia, were fencing the land of George
Fleischer, father of deceased Davis Fleischer. The place was in the boundary of the highway and the
hacienda owned by George Fleischer. This is located in the municipality of Maitum, South Cotabato. At the
place of the fencing is the house and rice drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n., Pieza II).
At that time, appellant was taking his rest, but when he heard that the walls of his house were being
chiselled, he arose and there he saw the fencing going on. If the fencing would go on, appellant would be
prevented from getting into his house and the bodega of his ricemill. So he addressed the group, saying
Pare, if possible you stop destroying my house and if possible we will talk it overwhat is good,
addressing the deceased Rubia, who is appellants compadre. The deceased Fleischer, however, answered:
No, gademit, proceed, go ahead. Appellant apparently lost his equilibrium and he got his gun and shot
Fleischer, hitting him. As Fleischer fell down, Rubia ran towards the jeep, and knowing there is a gun on the
jeep, appellant fired at Rubia, likewise hitting him (pp. 127-133, t.s.n., Defense transcript). Both Fleischer
and Rubia died as a result of the shotting (pp. 9-14, t.s.n., Pieza I; pp. 8-9, Appellants Brief, p. 161, rec.).
It appears, however, that this incident is intertwined with the long drawn out legal battle between the
Fleischer and Co., Inc. of which deceased Fleischer was the secretary-treasurer and deceased Rubia the
assistant manager, on the one hand, and the land settlers of Cotabato, among whom was appellant.
From the available records of the related cases which had been brought to the Court of Appeals (CA-G.R.
Nos. 28858-R and 50583-R) and to this Court on certiorari (G.R. No. L-26757 and L-45504), WE take judicial
notice of the following antecedent facts:
Appellant was among those persons from northern and central Luzon who went to Mindanao in 1937 and
settled in Maitum, a former sitio of Kiamba, and now a separate municipality of South Cotabato. He
established his residence therein, built his house, cultivated the area, and was among those who
petitioned then President Manuel L. Quezon to
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People vs. Narvaez
order the subdivision of the defunct Celebes Plantation and nearby Kalaong Plantation totalling about
2,000 hectares, for distribution among the settlers.
Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American landowner in
Negros Oriental, filed sales application No. 21983 on June 3, 1937 over the same area formerly leased and
later abandoned by Celebes Plantation Company, covering 1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in 1941 but the
survey report was not submitted until 1946 because of the outbreak of the second world war. According to
the survey, only 300 hectares identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, were set aside for Sales
Application No. 21983, while the rest were subdivided into sublots of 5 to 6 hectares each to be distributed
among the settlers (pp. 32-33, G.R. No. L-45504).
The 300 hectares set aside for the sales application of Fleischer and Company was declared open for
disposition, appraised and advertised for public auction. At the public auction held in Manila on August 14,
1948, Fleischer and Company was the only bidder for P6,000.00. But because of protests from the settlers
the corresponding award in its favor was held in abeyance, while an investigator was sent by the Director
of Lands to Kiamba in the person of Atty. Jose T. Gozon. Atty. Gozon came back after ten days with an
amicable settlement signed by the representative of the settlers. This amicable settlement was later
repudiated by the settlers, but the Director of Lands, acting upon the report of Atty. Gozon, approved the
same and ordered the formal award of the land in question to Fleischer and Company. The settlers
appealed to the Secretary of Agriculture and Natural Resources, who, however, affirmed the decision in
favor of the company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of Cotabato which then
consisted only of one sala, for the purpose of annulling the order of the Secretary of Agriculture and
Natural Resources which affirmed the order of the Director of Lands awarding the contested land to the
company. The settlers, as plaintiffs, lost that case in view of the amicable settlement which they had
repudiated
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People vs. Narvaez
as resulting from threats and intimidation, deceit, misrepresentation and fraudulent machination on the
part of the company. They appealed to the Court of Appeals (CA-G.R. No. 28858-R) which likewise affirmed
on August 16, 1965 the decision of the Court of First Instance in favor of the company.
This resulted in the ouster of the settlers by an order of the Court of First Instance dated September 24,
1966, from the land which they had been occupying for about 30 years. Among those ejected was the
appellant who, to avoid trouble, voluntarily dismantled his house, built in 1947 at a cost of around
P20,000.00, and transferred to his other house which he built in 1962 or 1963 near the highway. The
second house is not far from the site of the dismantled house. Its ground floor has a store operated by
Mrs. June Talens who was renting a portion thereof. He also transferred his store from his former
residence to the house near the highway. Aside from the store, he also had a rice mill located about 15
meters east of the house, and a concrete pavement between the rice mill and the house, which is used for
drying grains and copra.
On November 14, 1966, appellant was among the settlers on whose behalf Jose V. Gamboa and other
leaders filed Civil Case No. 755 in the Court of First Instance of Cotabato, Branch I, to obtain an injunction
or annulment of the order of award with prayer for preliminary injunction. During the pendency of this
case, appellant on February 21, 1967 entered into a contract of lease with the company whereby he
agreed to lease an area of approximately 100 to 140 square meters of Lot No. 38 from the company (Exh.
9, p. 1, Folder of Exhibits for Defense) for a consideration of P16.00 monthly. According to him, he signed
the contract although the ownership of the land was still uncertain, in order to avoid trouble, until the
question of ownership could be decided. He never paid the agreed rental, although he alleges that the
milling job they did for Rubia was considered payment. On June 25, 1968, deceased Fleischer wrote him a
letter with the following tenor:
You have not paid six months rental to Fleischers & Co., Inc. for that portion of land in which your house
and ricemill are located as per agreement executed on February 21, 1967. You have not paid
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People vs. Narvaez
even after repeated attempts of collection made by Mr. Flaviano Rubia and myself.
In view of the obvious fact that you do not comply with the agreement, I have no alternative but to
terminate our agreement on this date.
I am giving you six months to remove your house, ricemill, bodega, and water pitcher pumps from the
land of Fleischers & Co., Inc. This six-month period shall expire on December 31, 1966.
In the event the above constructions have not been removed within the six-month period, the company
shall cause their immediate demolition (Exhibit 10, p. 2, supra).
On August 21, 1968, both deceased, together with their laborers, commenced fencing Lot 38 by putting
bamboo posts along the property line parallel to the highway. Some posts were planted right on the
concrete drier of appellant, thereby cutting diagonally across its center (pp. 227-228, t.s.n., Vol. 2), with
the last post just adjacent to appellants house (p. 231, t.s.n., supra). The fence, when finished, would have
the effect of shutting off the accessibility to appellants house and rice mill from the highway, since the
door of the same opens to the Fleischers side. The fencing continued on that fateful day of August 22,
1968, with the installation of four strands of barbed wire to the posts.
At about 2:30 p.m. on the said day, appellant who was taking a nap after working on his farm all morning,
was awakened by some noise as if the wall of his house was being chiselled. Getting up and looking out of
the window, he found that one of the laborers of Fleischer was indeed chiselling the wall of his house with
a crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia was nailing the barbed wire and deceased Fleischer
was commanding his laborers. The jeep used by the deceased was parked on the highway. The rest of the
incident is narrated in the Peoples Brief as above-quoted. Appellant surrendered to the police thereafter,
bringing with him shotgun No. 1119576 and claiming he shot two persons (Exh. P, p. 31, Defense Exhibits).
Appellant now questions the propriety of his conviction, assigning the following errors:
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First Assignment of Error: That the lower court erred in convicting defendant-appellant despite the fact
that he acted in defense of his person; and
Second Assignment of Error: That the court a quo also erred in convicting defendant-appellant although
he acted in defense of his rights (p. 20 of Appellants Brief, p. 145, rec.).
The act of killing of the two deceased by appellant is not disputed. Appellant admitted having shot them
from the window of his house with the shotgun which he surrendered to the police authorities. He claims,
however, that he did so in defense of his person and of his rights, and therefore he should be exempt from
criminal liability.
Defense of ones person or rights is treated as a justifying circumstance under Art. 11, par. 1 of the Revised
Penal Code, but in order for it to be appreciated, the following requisites must occur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part of the person defending himself (Art. 11, par. 1, Revised
Penal Code, as amended).
The aggression referred to by appellant is the angry utterance by deceased Fleischer of the following
words: Hindi, sigue, gademit, avante, in answer to his request addressed to his compadre, the deceased
Rubia, when he said, Pare, hinto mona ninyo at pag-usapan natin kung ano ang mabuti (pp. 227-229,
t.s.n., Vol. 6). This was in reaction to his having been awakened to see the wall of his house being chiselled.
The verbal exchange took place while the two deceased were on the ground doing the fencing and the
appellant was up in his house looking out of his window (pp. 225-227, supra). According to appellant,
Fleischers remarks caused this reaction in him: As if, I lost my senses and unknowingly I took the gun on
the bed and unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr. Fleischer (p. 132, supra).
As for the shooting of Rubia, appellant testified:
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People vs. Narvaez
When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing the shot, Mr. Rubia looked at
Mr. Fleischer and when Mr. Fleischer fell down, Mr. Rubia ran towards the jeep and knowing that there
was a firearm in the jeep and thinking that if he will take that firearm he will kill me, I shot at him (p. 132,
supra, italics supplied).
The foregoing statements of appellant were never controverted by the prosecution. They claim, however,
that the deceased were in lawful exercise of their rights of ownership over the land in question, when they
did the fencing that sealed off appellants access to the highway.
A review of the circumstances prior to the shooting as borne by the evidence reveals that five persons,
consisting of the deceased and their three laborers, were doing the fencing and chiselling of the walls of
appellants house. The fence they were putting up was made of bamboo posts to which were being nailed
strands of barbed wire in several layers. Obviously, they were using tools which could be lethal weapons,
such as nail and hammer, bolo or bamboo cutter, pliers, crowbar, and other necessary gadgets. Besides, it
was not disputed that the jeep which they used in going to the place was parked just a few steps away, and
in it there was a gun leaning near the steering wheel. When the appellant woke up to the sound of the
chiselling on his walls, his first reaction was to look out of the window. Then he saw the damage being
done to his house, compounded by the fact that his house and rice mill will be shut off from the highway
by the fence once it is finished. He therefore appealed to his compadre, the deceased Rubia, to stop what
they were doing and to talk things over with him. But deceased Fleischer answered angrily with gademit
and directed his men to proceed with what they were doing.
The actuation of deceased Fleischer in angrily ordering the continuance of the fencing would have resulted
in the further chiselling of the walls of appellants house as well as the closure of the access to and from his
house and rice millwhich were not only imminent but were actually in progress. There is no question,
therefore, that there was aggression on the part of the victims: Fleischer was ordering, and Rubia was
actually
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participating in the fencing. This was indeed aggression, not on the person of appellant, but on his property
rights.
The question is, was the aggression unlawful or lawful? Did the victims have a right to fence off the
contested property, to destroy appellants house and to shut off his ingress and egress to his residence and
the highway?
Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his land or tenements.
However, at the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of the order of
award to Fleischer and Company was still pending in the Court of First Instance of Cotabato. The parties
could not have known that the case would be dismissed over a year after the incident on August 22, 1968,
as it was dismissed on January 23, 1970 on ground of res judicata, in view of the dismissal in 1965 (by the
Court of Appeals) of Civil Case No. 240 filed in 1950 for the annulment of the award to the company,
between the same parties, which the company won by virtue of the compromise agreement in spite of the
subsequent repudiation by the settlers of said compromise agreement; and that such 1970 dismissal also
carried the dismissal of the supplemental petition filed by the Republic of the Philippines on November 28,
1968 to annul the sales patent and to cancel the corresponding certificate of title issued to the company,
on the ground that the Director of Lands had no authority to conduct the sale due to his failure to comply
with the mandatory requirements for publication. The dismissal of the governments supplemental petition
was premised on the ground that after its filing on November 28, 1968, nothing more was done by the
petitioner Republic of the Philippines except to adopt all the evidence and arguments of plaintiffs with
whom it joined as parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed hoping for a favorable judgment in Civil Case
No. 755 filed on November 14, 1966 and his execution of the contract of lease on February 21, 1967 was
just to avoid trouble. This was explained by him during cross-examination on January 21, 1970, thus:
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People vs. Narvaez
It happened this way: we talked it over with my Mrs. that we better rent the place because even though
we do not know who really owns this portion to avoid trouble. To avoid trouble we better pay while
waiting for the case because at that time, it was not known who is the right owner of the place. So we
decided until things will clear up and determine who is really the owner, we decided to pay rentals (p.
169, t.s.n., Vol. 6).
In any case, Fleischer had given him up to December 31, 1968 (Exh. 10, p. 2, Defense Exhibits) within which
to vacate the land. He should have allowed appellant the peaceful enjoyment of his properties up to that
time, instead of chiselling the walls of his house and closing appellants entrance and exit to the highway.
The following provisions of the Civil Code of the Philippines are in point:
Art. 536. In no case may possession be acquired through force or intimidation as long as there is a
possessor who objects thereto. He who believes that he has an action or a right to deprive another of the
holding of a thing must invoke the aid of the competent court, if the holder should refuse to deliver the
thing.
Art. 539. Every possessor has a right to be respected in his possession; and should he be disturbed therein
he shall be protected in or restored to said possession by the means established by the laws and the Rules
of Court (Articles 536 and 539, Civil Code of the Philippines).
Conformably to the foregoing provisions, the deceased had no right to destroy or cause damage to
appellants house, nor to close his accessibility to the highway while he was pleading with them to stop and
talk things over with him. The assault on appellants property, therefore, amounts to unlawful aggression
as contemplated by law.
Illegal aggression is equivalent to assault or at least threatened assault of immediate and imminent kind
(People vs. Encomiendas, 46 SCRA 522).
In the case at bar, there was an actual physical invasion of appellants property which he had the right to
resist, pursuant
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to Art. 429 of the Civil Code of the Philippines which provides:
Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment
and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or
prevent an actual or threatened unlawful physical invasion or usurpation of his property (italics supplied).
The reasonableness of the resistance is also a requirement of the justifying circumstance of self-defense or
defense of ones rights under paragraph 1 of Article 11, Revised Penal Code. When the appellant fired his
shotgun from his window, killing his two victims, his resistance was disproportionate to the attack.
WE find, however, that the third element of defense of property is present, i.e., lack of sufficient
provocation on the part of appellant who was defending his property. As a matter of fact, there was no
provocation at all on his part, since he was asleep at first and was only awakened by the noise produced by
the victims and their laborers. His plea for the deceased and their men to stop and talk things over with
him was no provocation at all.
Be that as it may, appellants act in killing the deceased was not justifiable, since not all the elements for
justification are present. He should therefore be held responsible for the death of his victims, but he could
be credited with the special mitigating circumstance of incomplete defense, pursuant to paragraph 6,
Article 13 of the Revised Penal Code.
The crime committed is homicide on two counts. The qualifying circumstance of treachery cannot be
appreciated in this case because of the presence of provocation on the part of the deceased. As WE held
earlier in People vs. Manlapaz (55 SCRA 598), the element of a sudden unprovoked attack is therefore
lacking.
Moreover, in order to appreciate alevosia, it must clearly appear that the method of assault adopted by
the aggressor was deliberately chosen with a special view to the accomplishment of the act without risk to
the assailant from any defense that the party assailed might have made. This cannot be said
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People vs. Narvaez
of a situation where the slayer acted instantaneously x x x (People vs. Canete, 44 Phil. 481).
WE likewise find the aggravating (qualifying) circumstance of evident premeditation not sufficienty
established. The only evidence presented to prove this circumstance was the testimony of Crisanto Ibaez,
37 years old, married, resident of Maitum, South Cotabato, and a laborer of Fleischer and Company, which
may be summarized as follows:
On August 20, 1968 (two days before the incident) at about 7:00 A.M., he was drying corn near the house
of Mr. and Mrs. Mamerto Narvaez at the crossing, Maitum, South Cotabato, when the accused and his wife
talked to him. Mrs. Narvaez asked him to help them, as he was working in the hacienda. She further told
him that if they fenced their house, there is a head that will be broken. Mamerto Narvaez added Noy, it is
better that you will tell Mr. Fleischer because there will be nobody who will break his head but I will be the
one. He relayed this to Mr. Flaviano Rubia, but the latter told him not to believe as they were only idle
threats designed to get him out of the hacienda (pp. 297-303, t.s.n., Vol. 2).
This single evidence is not sufficient to warrant appreciation of the aggravating circumstance of evident
premeditation. As WE have consistently held, there must be direct evidence of the planning or
preparation to kill the victim, x x x it is not enough that premeditation be suspected or surmised, but the
criminal intent must be evidenced by notorious outward acts evincing the determination to commit the
crime (People vs. Ordioles, 42 SCRA 238). Besides, there must be a showing that the accused
premeditated the killing; that the culprit clung to their (his) premeditated act; and that there was sufficient
interval between the premeditation and the execution of the crime to allow them (him) to reflect upon the
consequences of the act (People vs. Gida, 102 SCRA 70). Moreover, the obvious bias of witness Crisanto
Ibanez, as a laborer of the deceased Davis Fleischer, neutralizes his credibility.
Since in the case at bar, there was no direct evidence of the planning or preparation to kill the victims nor
that the accused premeditated the killing, and clung to his
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premeditated act, the trial courts conclusion as to the presence of such circumstance may not be
endorsed.
Evident premeditation is further negated by appellant pleading with the victims to stop the fencing and
destroying his house and to talk things over just before the shooting. But the trial court has properly
appreciated the presence of the mitigating circumstance of voluntary surrender, it appearing that
appellant surrendered to the authorities soon after the shooting.
Likewise, WE find that passion and obfuscation attended the commission of the crime. The appellant
awoke to find his house being damaged and its accessibility to the highway as well as of his rice mill
bodega being closed. Not only was his house being unlawfully violated; his business was also in danger of
closing down for lack of access to the highway. These circumstances, coming so near to the time when his
first house was dismantled, thus forcing him to transfer to his only remaining house, must have so
aggravated his obfuscation that he lost momentarily all reason causing him to reach for his shotgun and
fire at the victims in defense of his rights. Considering the antecedent facts of this case, where appellant
had thirty years earlier migrated to this so-called land of promise with dreams and hopes of relative
prosperity and tranquility, only to find his castle crumbling at the hands of the deceased, his dispassionate
plea going unheededall these could be too much for any manhe should be credited with this mitigating
circumstance.
Consequently, appellant is guilty of two crimes of homicide only, the killing not being attended by any
qualifying nor aggravating circumstance, but extenuated by the privileged mitigating circumstance of
incomplete defensein view of the presence of unlawful aggression on the part of the victims and lack of
sufficient provocation on the part of the appellantand by two generic mitigating circumstance of
voluntary surrender and passion and obfuscation.
Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusion temporal. Pursuant
to Article 69, supra, the penalty lower by one or two degrees shall be im406
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People vs. Narvaez
posed if the deed is not wholly excusable by reason of the lack of some of the conditions required to justify
the same. Considering that the majority of the requirements for defense of property are present, the
penalty may be lowered by two degrees, i.e., to prision correccional. And under paragraph 5 of Article 64,
the same may further be reduced by one degree, i.e., arresto mayor, because of the presence of two
mitigating circumstances and no aggravating circumstance.
The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan American World
Airways (43 SCRA 397), the award for moral damages was reduced because the plaintiff contributed to the
gravity of defendants reaction. In the case at bar, the victims not only contributed but they actually
provoked the attack by damaging appellants properties and business. Considering appellants standing in
the community, being married to a municipal councilor, the victims actuations were apparently designed
to humiliate him and destroy his reputation. The records disclose that his wife, councilor Feliza Narvaez,
was also charged in these two cases and detained without bail despite the absence of evidence linking her
to the killings. She was dropped as a defendant only upon motion of the prosecution dated October 31,
1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on November 4, 1968 (p. 58, CFI rec. of
Criminal Case No. 1815).
Moreover, these cases arose out of an inordinate desire on the part of Fleischer and Company, despite its
extensive landholdings in a Central Visayan province, to extend its accumulation of public lands to the
resettlement areas of Cotabato. Since it had the capabilityfinancial and otherwiseto carry out its land
accumulation scheme, the lowly settlers, who uprooted their families from their native soil in Luzon to take
advantage of the governments resettlement program, but had no sufficient means to fight the big
landowners, were the ones prejudiced. Thus, the moral and material suffering of appellant and his family
deserves leniency as to his civil liability.
Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prision correccional or
arresto mayor and fine who has no property with which to meet his civil liabilities
407
VOL. 121, APRIL 20, 1983

407
People vs. Narvaez

to serve a subsidiary imprisonment at the rate of one (1) day for each P2.50. However, the amendment
introduced by Republic Act No. 5465 on April 21, 1969 made the provisions of Art. 39 applicable to fines
only and not to reparation of the damage caused, indemnification of consequential damages and costs of
proceedings. Considering that Republic Act 5465 is favorable to the accused who is not a habitual
delinquent, it may be given retroactive effect pursuant to Article 22 of the Revised Penal Code.
WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONLY TWO (2) HOMICIDES,
MITIGATED BY THE PRIVILEGED EXTENUATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL AS
BY TWO (2) GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND OBFUSCATION,
WITHOUT ANY AGGRAVATING CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN
IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO INDEMNIFY EACH GROUP OF HEIRS OF
DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P4,000.00) PESOS,
WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY AWARD FOR MORAL DAMAGES AND
ATTORNEYS FEES.
CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST FOURTEEN (14) YEARS NOW
SINCE HIS VOLUNTARY SURRENDER ON AUGUST 22, 1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED.
NO COSTS.
SO ORDERED.
Fernando, C.J., Teehankee, Concepcion, Jr., Guerrero, De Castro, Melencio-Herrera, Escolin, Vasquez
and Relova, JJ., concur.
Aquino, J., is on leave.
Abad Santos, J., I dissent. The self-defense of the Revised Penal Code refers to unlawful aggression on
persons, not pro408
408
People vs. Narvaez
perty.
Plana, J., in the result.
Gutierrez, Jr., J., please see separate opinion.
GUTIERREZ, JR., J., Separate Opinion:
While I agree with the order to release the appellant, I am constrained to dissent in part. It is true that Art.
429, Civil Code of the Philippines, provides that the owner or legal possessor of a thing may use such force
as may be reasonably necessary to repel or prevent an actual or tlireatened unlawful physical invasion or
usurpation of his property. It seems to me, however, that an attack on the person defending his property is
an indispensable element where an accused pleads self-defense but what is basically defended is only
property.
Defense of property is not of such importance as the right to life and defense of property can only be
invoked when it is coupled with some form of attack on the person of one entrusted with said property.
The defense of property, whether complete or incomplete, to be available in prosecutions for murder or
homicide must be coupled with an attack by the one getting the property on the person defending it.
In the case now before Us, there is absolutely no evidence that an attack was attempted, much less made
upon the person of appellant. The mere utterance No, gademit, proceed, go ahead is not the unlawful
aggression which entitles appellant to the pela of self-defense. I agree with the majority opinion that the
crime is homicide but without any privileged mitigating circumstance.
Therefore, since the appellant is guilty beyond reasonable doubt of two (2) homicides, mitigated by the
two generic mitigating circumstances of voluntary surrender and obfuscation, without any aggravating
circumstance, the maximum sentence the appellant should have served was prision mayor plus the
indemnification to each group of heirs of Davis Fleischer and of Flamiano Rubia of the sum of Four
Thousand (P4,000.00) Pesos, without subsidiary imprisonment, but without any award for moral damages
and attorneys fees.
409
VOL. 121, APRIL 20, 1983
409
People vs. Ursal
Considering that appellant has been under detention for almost fourteen (14) years now since August 22,
1968, he has served the penalty and should be released.
Appellants immediate release is hereby ordered.
Notes.The appellants theory of self-defense may be belied by the number of wounds on the body of the
victim. (People vs. Santella, 4 SCRA 1005; People vs. Panganiban, 22 SCRA 817.)
The theory of self-defense is unbelievable where the alleged gun of the deceased was not found by the
investigators immediately after the incident but was presented as evidence only at the trial by the defense
and the ownership of the gun was not definitely traced to the deceased. (People vs. Calacala, 14 SCRA
156.)
The theory of self-defense based on the testimonies of the accused cannot overcome the version of two
eyewitnesses and a peace officer presented as prosecution eyewitnesses. (People vs. Empeo, 33 SCRA
40.)
For unlawful aggression to be present in self-defense, there must be real danger to life or personal safety.
(People vs. Sabio, 19 SCRA 901.)
Lack of explanation as to why offended victim first boxed the accused who was a trained boxer before
pulling out a knife, belies the plea of self-defense. (People vs. Alquizar, 92 SCRA 698.)
4. People vs Boholst-Caballero
180
People vs. Boholst-Caballero
No. L-23249. November 25, 1974.*
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CUNIGUNDA BOHOLST-CABALLERO, accusedappellant.
Criminal law; Self-defense; Basis of law on self-defense.The law on self-defense embodied in any penal
system in the civilized world finds justification in man's natural instinct to protect, repel, and save his
person or rights from impending danger or peril; it is based on that impulse of self-preservation born to
man and part of his nature as a human being.
Same; Same; Basis of law on self-defense according to the Classicists and Positivists.To the Classicists in
penal law, lawful defense is grounded on the impossibility on the part of the State to avoid a present
unjust aggression and protect a person unlawfully attacked, and therefore it is inconceivable for the State
to require that the innocent succumb to an unlawful aggression without resistance; while to the Positivists,
lawful defense is an exercise of a right, an act of social justice done to repel the attack of an aggressor.
Same; Same; Requisites.Article 11 of the Revised Penal Code provides that anyone who acts in defense
of his person or rights does not incur any criminal liability provided that the following circumstances
concur: (1) Unlawful aggression; (2) reasonable necessity of the means employed to prevent or repel it;
and (3) lack of sufficient provocation on the part of the person defending himself.
Same; Same; Same; Requisites must be proved by clear and convincing evidence.He who seeks
justification for his act must prove by clear and convincing evidence the presence of the statutory
circumstances, the rationale being that having admitted the wounding or killing of his adversary which is a
felony, he is to be held criminally liable for the crime unless he establishes to the satisfaction of the court
the fact of legitimate self-defense.
Same; Same; Unlawful aygresxion; Where the location of the wound inflicted on the victim confirms the
said victim ax the unlawful awjressor; Case at bar.With her husband kneeling over her as she lay on her
back on the ground and his hand choking her neck, the accused had no other recourse but to pull out the
knife inserted at the left side of her husbands belt and plunge it at his body hitting the left back portion
just below the waist, described by the attending physician as the left lumbar region. The fact that the blow
landed
________________
* FIRST DIVISION.
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VOL. 61, NOVEMBER 25, 1974

181
in the vicinity from where the knife was drawn is a strong indication of the truth of the accuseds
testimony, for as she lay on the ground with her husband bent over her it was quite natural for her right
hand to get hold of the knife tucked in the left side of the mans belt and thrust it at that section of the
body nearest to her hand at the moment.
Same; Same; Reasonable necessity of the means employed to prevent unlawful aggression; Reasonable
necessity of the means employed rests upon the imminent danger of injury; Case at bar.The second
element, that is, reasonable necessity for the means employed, is likewise present. The accused who being
strangled and choked by a furious aggressor and rendered almost unconscious by the strong pressure on
her throat had no other recourse but to get hold of any weapon within her reach to save herself from
impending death. Reasonable necessity of the means employed in self-defense does not depend upon the
harm done but rests upon the imminent danger of such injury. The knife tucked in her husbands belt
afforded the accused the only reasonable means with which she could free and save herself from being
strangled and choked to death.
Same; Same; Lack of sufficient provocation; Imaginary commission of a wrong not a sufficient provocation;
Case at bar.Provocation is sufficient when it is proportionate to the aggression, that is, adequate enough
to impel one to attack the person claiming self-defense. The accused did not give sufficient provocation to
warrant the aggression or attack on her person by her husband. While it was understandable for the
accused to be angry at his wife for finding her on the road in the middle of the night, however, he was not
justified in inflicting bodily punishment with an intent to kill by choking his wifes throat. All that the
accused did was to provoke an imaginary commission of a wrong in the mind of her husband, which is not
a sufficient provocation under the law of self-defense.
Same; Where there are directly conflicting versions of the incident object of the accusation, duty of the
Court to look for other circumstances to determine the truth as between the conflicting versions.Where
there are directly conflicting versions of the incident object of the accusation, the Court in its search for the
truth perforce has to look for some facts or circumstances which can be used as valuable aids in evaluating
the probability or improbability of a testimony, for after all the element of probability is always involved in
weighing testimonial evidence, so much so that when a court as a judicial fact-finder pronounces judgment
that a set of facts constitute the true happening it does so not of its own personal knowledge but as the
result of an evaluating process of the probability or improbability of a fact sought to be proved.
182
182
Same; Same; Absence of motive important in determining the truth as between conflicting versions of the
incident object of the accusation.Although it is the general rule that the presence of motive in the killing
of a person is not indispensable to a conviction especially where the identity of the assailant is duly
established by other competent evidence or is not disputed, nonetheless, the absence of such motive is
important in ascertaining the truth as between two antagonistic theories or versions of the killing.
APPEAL from a judgment of the Court of First Instance of Leyte, Ormoc City branch. Estenzo, J.

Solicitor General Arturo A. Alafriz, Assistant Solicitor General Florencio Villamor and Attorney
Concepcion F. Torrijos for plaintiff-appellee.
Accused-appellant in her own behalf.
MUNOZ PALMA, J.:
Convicted for having killed her husband, Cunigunda Boholst-Caballero seeks a reversal of the judgment of
the Court of First Instance of Ormoc City finding her guilty of PARRICIDE and sentencing her to suffer an
indeterminate imprisonment of from EIGHT (8) YEARS and ONE (1) DAY of prision mayor in its medium
period, as the minimum, to FOURTEEN (14) YEARS, EIGHT (8) MONTHS and ONE (1) DAY of reclusion
temporal in its medium period as the maximum; to indemnify the heirs of Francisco Caballero in the sum of
SIX THOUSAND PESOS (P6,000.00) without subsidiary imprisonment in case of insolvency, and to pay the
costs, and prays for an acquittal based on her plea of self-defense.1
The Solicitor General however asks for the affirmance of the appealed decision predicated on the following
testimonial and documentary evidence presented by the prosecution before the trial court:
Cunigunda Boholst and Francisco Caballero, both at the age of twenty, were married on June 7, 1956, at a
ceremony solemnized by the parish priest of the Roman Catholic Church
________________
1 This appeal was originally elevated to the Court of Appeals; however, in a Resolution promulgated on
May 7, 1964, it forwarded the case to this Court on the ground that the penalty for the crime committed
by the accused is reclusion perpetua.
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183
in Ormoc City.2 The marriage was not a happy one and before the end of the year 1957 the couple
separated. Late in the evening of January 2, 1958, Francisco Caballero and two companions, namely,
Ignacio Barabad and Kakong Sacay, drank tuba in a certain house in barrio Ipil, Ormoc City. At about
midnight, Francisco Caballero and his companions proceeded home. On the way, they saw Franciscos wife,
Cunigunda, standing at the corner of the yard of Igmedio Barabad. Cunigunda called Francisco and when
the latter approached her, Cunigunda suddenly stabbed Francisco with a knife marked by the prosecution
as its Exhibit C. Francisco called for help to his two companions who upon seeing that Francisco was
wounded, brought him to the St. Jude Hospital.3 Dr. Cesar Samson, owner of the hospital, personally
attended to the victim and found a punctured wound on the left lumbar region measuring 1 inch
externally (Exhibit B). First aid was given, but because there was a need for blood transfusion and the
facilities of the hospital were inadequate to provide the necessary treatment, Dr. Samson suggested that
the patient be transported to Cebu City.4 In the meantime, Cunigunda Caballero had gone to the Police
Department of Ormoc City, surrendered to desk sergeant Restituto Mariveles and informed the latter that
she stabbed her husband.5 While Francisco Caballero was confined at the hospital, he was interrogated by
Patrolman Francisco Covero concerning the identity of his assailant and he pointed to his wife Cunigunda.
The questions propounded by Pat. Covero and the answers given by the victim were written down in a
piece of paper on which the victim affixed his thumbmark (Exhibit D) in the presence of his brother,
Cresencio Caballero, and another policeman, Francisco Tomada.6 On January 4, 1958, Francisco Caballero
was brought to Cebu City on board the MV Ormoc but the trip proved futile because the victim died at
noontime of the same day from the stab wound sustained by him.7
________________
2 Marriage contract marked Exhibit G.

3 T.s.n. March 19,1958, pp. 3-7, witness Ignacio Barabad.
4 T.s.n. April 18,1958, pp. 2-7, witness Dr. Cesar Samson.
5 T.s.n. June 24,1958, pp. 16-17, witness Restituto Mariveles.
6 T.s.n. June 24, 1958, pp. 28-32, witness Covero; t.s.n. June 24, 1958, pp. 54-62, 67, witness Tomada; t.s.n.
pp. 72-73 witness Cresencio Caballero.
7 see death certificate marked Exhibit H.
184
184
Appellant, on the other hand, pleads that We discard the proof adduced by the prosecution and believe
instead what she declared before the trial judge briefly summarized as follows:
After her marriage to Francisco Caballero on June 7, 1956, appellant lived with her husband in the house of
her parents in barrio Ipil, Ormoc City, and their marriage, although not a harmonious one, was blessed with
a daughter; her married life was marked by frequent quarrels caused by her husbands gambling, drinking,
and serenading, and there were times when he maltreated and beat her; after more than a year she and
her husband transferred to a house of their own, but a month had hardly passed when Francisco left her
and her child, and she had to go back to live with her parents who bore the burden of supporting her and
her child; in the month of November, 1957, her daughter became sick and she went to her husband and
asked for some help for her sick child but he drove her away and said I dont care if you all would die; in
the evening of January 2, 1958, she went out carolling with her friend, Crispina Barabad, and several men
who played the musical instruments; at about 12:00 oclock midnight they divided the proceeds of the
carolling in the house of Crispina Barabad, after which she went home, but before she could leave the
vicinity of the house of Crispina, she met her husband, Francisco, who upon seeing her, held her by the
collar of her dress and asked her: Where have you been prostituting? You are a son of a bitch.; she
replied: What is your business. Anyway you have already left us. You have nothing to do with us; upon
hearing these words Francisco retorted: What do you mean by saying I have nothing to do with you. I will
kill you all, I will kill you all; Francisco then held her by the hair, slapped her face until her nose bled, and
pushed her towards the ground; to keep herself from falling she held on to his waist and as she did so her
right hand grasped the knife tucked inside the belt line on the left side of his body; because her husband
continued to push her down she fell on her back to the ground; her husband then knelt over her, held her
neck, and choked her saying: Now is the time I can do whatever I want. I will kill you; because she had
no other recourse as she was being choked, she pulled out the knife of her husband and thrust it at him
hitting the left side of his body near the belt line just above his left thigh; when she finally released
herself from the hold of her husband she ran home and on the way she threw the
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185
knife; in the morning of January 3, she went to town, surrendered to the police, and presented the torn
and blood-stained dress worn by her on the night of the incident (see Exhibit I); Pat. Cabral then
accompanied her to look for the weapan but because they could not find it the policeman advised her to
get any knife, and she did, and she gave a knife to the desk sergeant which is the knife now marked as
Exhibit C for the prosecution.8
The sole question thus presented in this appeal is: did appellant stab her husband in the legitimate defense
of her person?
The law on self-defense embodied in any penal system in the civilized world finds justification in mans
natural instinct to protect, repel, and save his person or rights from impending danger or peril; it is based
on that impulse of self-preservation born to man and part of his nature as a human being. Thus, in the
words of the Romans of ancient history: Quod quisque ob tutelam corporis sui fecerit, jure suo fecisse
existimetur.9 To the Classicists in penal law, lawful defense is grounded on the impossibility on the part of
the State to avoid a present unjust aggression and protect a person unlawfully attacked, and therefore it is
inconceivable for the State to require that the innocent succumb to an unlawful aggression without
resistance; while to the Positivists, lawful defense is an exercise of a right, an act of social justice done to
repel the attack of an aggressor.10
Our law on self-defense is found in Art. 11 of the Revised Penal Code which provides:
ART. 11. Justifying circumstances.The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur:
________________
8 T.s.n. August 12, 1958, pp. 58-68, witness Cunigunda Caballero.

9 see 1 Viada, 172, 5th edition. That which anyone should do for the safety of his own person is to be
adjudged as having been done justly in his own favor. (Writers translation).
10 Guillermo B. Guevaras Penal Science and Philippine Criminal Law, 1974 ed. p. 82, citing: Pessina, par.
73; Carrara, par. 291; and Calon, Derecho Penal, 292.
186
186
xx
xx
xx
xx
As part of this law is the settled jurisprudence that he who seeks justification for his act must prove by
clear and convincing evidence the presence of the aforecited circumstances, the rationale being that
having admitted the wounding or killing of his adversary which is a felony, he is to be held criminally liable
for the crime unless he establishes to the satisfaction of the court the fact of legitimate self-defense.11
In this case of Cunigunda Caballero, the trial court did not find her evidence clear and convincing, and gave
these reasons for its conclusion: a) appellants testimony is inherently improbable as brought out by her
demonstration of the incident in question during the trial of the case; b) there was no wound or injury on
appellants body treated by any physician; c) appellants insistence that the weapon used by her was a
Moro hunting knife and not Exh. C is incredible; d) she gave contradictory statements concerning the
report made by her to the police authorities that she was choked by her husband; and e) her husbands
abandonment of her and her child afforded the motive behind appellants attack.12
We are constrained, however, to disagree with the court a quo and depart from the rule that appellate
courts will generally not disturb the findings of the trial court on facts testified to by the witnesses.
An examination of the record discloses that the trial judge overlooked and did not give due importance to
one piece of evidence which more than the testimony of any witness eloquently confirms the narration of
appellant on how she happened to stab her husband on that unfortunate night. We refer to the location of
the wound inflicted on the victim.
________________
11 U.S. vs. Coronel, 30 Phil. 112; People vs. Cruz, 53 Phil. 635; People vs. Ansoyon, 75 Phil. 772; People vs.
Davis, L-13337, Feb. 16, 1961, 1 SCRA 473; People vs. Solana, L-13967, Sept. 29, 1962, 6 SCRA 60; People
vs. Mendoza, L-16392, January 30,1965,13 SCRA 11; People vs. Talaboc, L-25004, October 31, 1969, 30
SCRA 87 People vs. Ordiales, L-30956, November 23, 1971, 42 SCRA 238; People vs. Tingson, L-31228,
October 24, 1972, 47 SCRA 243; People vs. Llamera, L-21604-5-6, May 25, 1973, 51 SCRA 48..
12 pp. 7-9, Decision found in pp. 267-269, original record.
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187
Appellants account of that fatal occurrence as given in her direct testimony follows:
Q
At that precise time when you were going home to the place of your parents, did any unusual incident
occur?
A
Yes, sir.
Q
What was it?
A
At the time when I went down from the house of Crispina Barabad, when I reached near the banana hill,
my husband held me.
Q
What happened when your husband, Francisco Caballero, held you?
A
He asked me from where did I prostitute myself.
Q
What did you answer?
A
I answered that I did not go (on) prostituting. I told him that I was only forced to accompany with the
carolling in order to earn money for our child.
Q
What part of your body did your husband, Francisco Caballero, hold you?
A
He held me at the collar of my dress. (Witness holding the right portion of the collar of her dress.)
Q
After you answered Francisco, what did he do?
A
He said Where have you been prostituting? You are a son of a bitch. Then I told him What is your
business. Anyway you have already left us. You have nothing to do with us.
Q
When Francisco heard these words, what did he do?
A
Francisco said What do you mean by saying I have nothing to do with you. I will kill you all. I will kill you
all.
Q
And then, what happened?
A
He held my hair and slapped my face twice. Then I staggered and my nose was bleeding.
Q
Do you mean to say that blood flowed out of your nose?
A
Yes, sir.
Q
After you were slapped twice and your nose begun to bleed, what happened next?
A
He held the front part of my dress just below the collar and pushed me towards the ground.
Q
While your husband was holding your dress below the neck and tried to push you down, what did you do?
A
I held a part of his body in order that I would not fall to the ground.
Q
And then what happened?
A
Because I struggled hard in order that I would not fall to the ground, I held his belt and that was the time I
got hold of a weapon along his belt line.
Q
After that what happened?
A
He shoved my hands upward and pushed me to the ground
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188
and that was the time my hands were released. He was choking me.
Q
When you said your hands were released, was that before or after you were choked by Francisco
Caballero?
A
At that time when I was about to fall to the ground that was the time I released my hands.
Q
When you were almost fallen to the ground, where were the hands of Francisco Caballero?
A
On my hair.
Q
You mean to say the two hands of Francisco Caballero?
A
One of his hands was holding my hair. The other hand pushed me.
COURT:
Q
What hand was holding your hair?
A
His right hand was holding my hair while his left hand pushed me.
ATTORNEY GARCIA:
Q
When you were fallen to the ground what happened?
A
While I lay prostrate on the ground and believing that I have no other recourse, while his left hand was
holding my neck, I was able to take hold of the weapon from his belt line and I thrust it to him.
Q
What was this weapon which you were able to get from his belt line?
A
It was a hunting knife. (tsn. pp. 53-55, witness Cunigunda Caballero)
On cross-examination, appellant was asked by the private prosecutor to show her position when she
stabbed her husband and she did, and although the stenographic notes on that demonstration are very
sketchy which We quote:
Q
Please demonstrate to this Court when you made the thrust to your husband?
A
When I took hold of the hunting knife I made the thrust in this manner. (Witness held the ruler with her
right hand and kneeled on the floor) (tsn. p. 67, ibid)
still We can get a clear picture of what appellant must have done, from the questions and answers
immediately following the above-quoted portion of the transcript, viz:
Q
You want to make us understand that when you thrust the weapon to the body of your husband you were
lying down flat to the ground ?
A
I was lying flat on the ground face upward. I was a little bit inclined because I tried to struggle trying to get
away from the hold of my husband.
Q
You want to make us understand that your back was touching
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189
the ground when you made the thrust to your husband?

A
Yes, sir.
COURT:
Q
Where were you kneeled by your husband!
A
On my right thigh. (ibid; italics supplied)
Thus, with her husband kneeling over her as she lay on her back on the ground and his hand choking her
neck, appellant, as she said, had no other recourse but to pull out the knife inserted at the left side of her
husbands belt and plunge it at his body hitting the left back portion just below the waist, described by the
attending physician, Dr. Cesar Samson, as the left lumbar region. The fact that the blow landed in the
vicinity from where the knife was drawn is a strong indication of the truth of appellants testimony, for as
she lay on the ground with her husband bent over her it was quite natural for her right hand to get hold of
the knife tucked in the left side of the mans belt and thrust it at that section of the body nearest to her
hand at the moment.
We do not agree with the trial judges observation that as demonstrated by the accused it was physically
impossible for her to get hold of the weapon because the two knees of her husband were on her right
thigh which would have forced her to put her right elbow towards the ground (see p. 9 of Decision), for
even if it were true that the two knees of Francisco were on his wifes right thigh, however, there is
nothing in the record to show that the right arm of the accused was held, pinned down or rendered
immobile, or that she pressed her elbow to the ground, as conjectured by the trial judge, in such a manner
that she could not reach for the knife. On the contrary, as indicated earlier, accused testified and so
demonstrated that she was lying flat on her back, her husband kneeling over her and her right arm free to
pull out the knife and strike with it.
The trial judge also referred to a demonstration made by appellant of that portion of her testimony when
she was held by the hair and pushed down to the ground, and His Honor commented that (S)he could not
be falling to the ground, as shown to the Court by her, considering the fact that the pushing was to and fro
as shown in her demonstration. (p. 8, Decision) The trial judge, however, failed to consider that it is
humanly impossible to have an exact and accurate reproduction or reenactment of an occurrence
especially if it
190
190
involves the participation of persons other than the very protagonists of the incident being reenacted. In
this particular instance appellant was asked by the private prosecutor to show how she was pushed down
by her husband, and her demonstration is described in the stenographic transcript as follows:
Q
Please demonstrate to this Court the position of your husband and you while your husband held your hair.
A
He did this way. (Witness held the hair of the Court Interpreter with his left hand and his right hand held
the right shoulder of the Interpreter and pulled the Interpreter to and fro. The Interpreter represented as
the accused and the accused as the deceased.)
Q
Where were your two hands?
A
My two hands held his waist line. (tsn. 66, witness Cunigunda Caballero; italics supplied)
In that demonstration, accused represented the victim while she in turn was impersonated by the court
interpreter, and so it was difficult if not impossible for the two to give an accurate reenactment
considering that the accused assumed a role not hers during the actual incident and the court interpreter
played a part which was not truly his. At any rate, the accused showed how one hand of her husband held
her hair while the other pushed her down by the shoulder, and to portray how she in turn struggled and
tried to push back her husband to keep herself from falling, she pulled the interpreter (representing the
accused) to and fro. The fact is that Francisco succeeded in forcing appellant down to the ground as
portrayed by the latter when, following the foregoing demonstration, she was asked by the private
prosecutor to show how she stabbed her husbanda matter which is discussed in pages 8 and 9 of this
Decision.
It is this particular location of the wound sustained by the victim which strongly militates against the
credibility of the lone prosecution witness, Ignacio Barabad. This witness declared that on that night when
husband and wife met on the road, Cunigunda called Francisco and when the latter was near, she
immediately stabbed him. If that were true, that is, husband and wife were standing face to face at a
distance of one-half meter when the stabbing occurred (tsn. p. 11, witness Ignacio Barabad), it would have
been more natural and probable for the weapon to have been directed towards the front part of the body
of the victim such as his abdomen or
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chest, rather than at his back, left side, just above the left thigh.
In cases such as the one now before Us where there are directly conflicting versions of the incident object
of the accusation, the Court in its search for the truth perforce has to look for some facts or circumstances
which can be used as valuable aids in evaluating the probability or improbability of a testimony, for after all
the element of probability is always involved in weighing testimonial evidence13, so much so that when a
court as a judicial fact-finder pronounces judgment that a set of facts constitute the true happening it does
so not of its own personal knowledge but as the result of an evaluating process of the probability or
improbability of a fact sought to be proved.
Thus, in People vs. Aquino, L-32390, December 28, 1973, a decision of the First Division of this Court
penned by Chief Justice Querube C. Makalintal, the plea of self-defense of the accused-appellant was
sustained on the basis of certain physical and objective circumstances which proved to be of decisive
importance in ascertaining the veracity of the plea of self-defense, to wit: the location of the wound on
the right side of the throat and right arm of the deceased, the direction of the trajectories of the bullets
fired by the accused, the discovery of bloodstains at the drivers seat, the finding of the dagger and
scabbard of the deceased, and so on.14
In the case of appellant Cunigunda Caballero, We find the location of the fatal wound as a valuable
circumstance which confirms the plea of self-defense.
Another, is the lack of motive of appellant in attacking and killing her husband on that particular night of
January 2. Although it is the general rule that the presence of motive in the killing of a person is not
indispensable to a conviction especially where the identity of the assailant is duly established by other
competent evidence or is not disputed, as in this case, nonetheless, the absence of such motive is
important in ascertaining the truth as between two antagonistic theories or versions of the killing.15
________________
13 Underhills Criminal Evidence, 5th edition, Vol. 1, pp. 2-3, cited in Franciscos Evidence, Vol. VII, Part 1,
p. 68.
14 see also People vs. Maliwanag, et al., L-30302, August 14, 1974 (1st Division)
15 People vs. Zamora, 59 Phil. 568; People vs. Ramponit, 62 Phil. 284; People vs. Divinagracia, 105 Phil.
281; People vs. Ester Murray,
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We disagree with the statement of the court a quo that appellants motive for killing her husband was his
abandonment of her and his failure to support her and her child. While appellant admitted in the course of
her testimony that her marriage was not a happy one, that she and her husband separated in the month of
October, 1957, and since then she and her child lived with her parents who supported them, nevertheless
she declared that notwithstanding their separation she still loved her husband (tsn. p. 59, crossexamination of appellant). As a matter of fact, appellant had been living with her parents for several
months prior to the incident in question and appeared resigned to her fate. Furthermore, there is no
record of any event which occurred immediately prior to January 2 which could have aroused her feelings
to such a degree as to drive her to plan and carry out the killing of her husband.
On the other hand, it was Francisco Caballero who had a reason for attacking his wife, Cunigunda. Meeting
his wife unexpectedly at past midnight on the road, Francisco reacted angrily, and suspecting that she was
out for some bad purpose he held her by the collar of her dress and said: Where have you been
prostituting? You are a son of a bitch. This was followed by a slapping on the face until Cunigundas nose
bled, pulling of her hair, pushing her down to the ground, and strangling herall of which constituted the
unlawful aggression against which appellant had to defend herself.
Next to appellants lack of motive for killing her husband, is her conduct shortly after the occurrence. As
soon as the sun was up that morning of January 3 (the stabbing occurred past midnight of January 2),
Cunigunda went to the city and presented herself at the police headquarters where she reported that she
stabbed her husband and surrendered the blood-stained dress she wore that night. On this point, the trial
judge stated that appellant made contradictory statements in her testimony concerning the report made
by her to the police authorities, for while at the start she declared that she did not report the choking by
her husband, she later changed her testimony and stated that she did relate that fact. (p. 10, Decision)
We have gone over the stenographic transcript of the testimony of appellant on direct examination and
nowhere is
________________
105 Phil. 591; People vs. Macabenta, 106 Phil. 77.

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there a positive and direct statement of hers that she did not report that she was choked by her husband.
What the trial judge asked of appellant was whether or not she told the police about the fist mark on her
face and her answer was No, sir, I forgot. (tsn. p. 55, supra) And on appellants cross-examination, there
was no question propounded and therefore there was no answer given on the subject-matter of
appellants report to the police concerning the incident except for the following:
COURT:
Q
Did you show that dress to the police authorities the following day?
A
I was not able to wear that, Your Honor, because it was torn out.
Q
You did not bring that to the police authorities?
A
I showed it to the police authorities, and they told me to keep it, but not to touch it. (Tsn. p. 65, ibid)
We do not see, therefore, the alleged contradiction in appellants testimony which was singled out by His
Honor as one of his reasons for discrediting her plea of self-defense.
That appellant made it clear to the police that she stabbed her husband because he attacked her is
confirmed by no less than the prosecution witness, Patrolman Restituto Mariveles, who was on duty at the
desk when appellant arrived at the police headquarters. This witness on cross-examination declared:
Q
And she also told you that on that night previous to the incident her husband Francisco Caballero beat her
up, is that right?
A
She told me that she was met on the way by her husband immediately after carolling and she was
manhandled by her husband and when she was struggling to get loose from her husband she happened to
take hold of a knife that was placed under the belt of her husband and because she was already half
conscious she did not know that she was able to thrust said knife to the stomach of her husband. (tsn. p.
23, witness R. Mariveles)
It is indeed regrettable that the statements made by appellant to the police upon her surrender were not
taken down in writing to serve as a faithful and reliable account of her report, nevertheless, We are
satisfied by the fact, which is not disputed, that of her own accord appellant went to the police authorities
early in the morning of January 3, informed policeman Mariveles that she stabbed her husband because he
manhandled her which rendered her half-conscious, and
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brought and showed the dress she wore during the incident which was torn by the collar and with blood
stains due to the bleeding of her nose. Another policeman, Joventino de Leon, who at the time was
property custodian of the Ormoc City police, corroborated appellants testimony concerning the dress
marked Exhibit 1 for the defense. (tsn. p. 70 witness J. de Leon) If there was no clear and positive
statement in appellants testimony either on direct or cross examination that she informed the police that
she was choked by her husband, it was because, as We noted, no question was propounded to her on that
point.
While We are on this subject of appellants surrender, mention is to be made of the knife marked as Exhibit
C for the prosecution. In her testimony, appellant stated that Exhibit C was not the knife actually used by
her in stabbing her husband because the true weapon was her husbands Moro hunting knife with a blade
of around six inches which she threw away immediately after the incident; that when she was asked by
Pat. Mariveles to look for the weapon and she could not find it, she was advised by policeman Cabral who
helped her in the search to get any knife and surrender it to the desk officer and so she took the knife
Exhibit C and presented it to Pat. Mariveles. (tsn. appellant pp. 56-57, 60) This testimony of appellant was
taken against her by the court aquo which held that her declaration could not have been true. We find
however no strong reason for disbelieving the accused on this point. Appellant does not deny that she
turned over Exhibit C to Pat. Mariveles as the knife with which she stabbed her husband but she claims
that she did so upon advise of another policeman, Pat. Cabral, and it is quite significant that the latter was
not called upon by the prosecution to refute such declaration. There is sincerity in appellants attempt to
rectify a misstatement made by her to Pat. Mariveles and We are inclined to believe and in fact We do
believe that the fatal weapon must have had indeed a blade of around six inches as stated by appellant for
it to penetrate through the left lumbar region to the victims large intestine and cause the discharge of
fecal matter, (tsn. Dr. C. Samson, p. 6)
All the elements of self-defense are indeed present in the instant case.
The element of unlawful aggression has been clearly established as pointed out above.
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The second element, that is, reasonable necessity for the means employed is likewise present. Here we
have a woman who being strangled and choked by a furious aggressor and rendered almost unconscious
by the strong pressure on her throat had no other recourse but to get hold of any weapon within her reach
to save herself from impending death. Early jurisprudence of this Court has followed the principle that the
reasonable necessity of the means employed in self-defense does not depend upon the harm done but
rests upon the imminent danger of such injury. (U.S. vs. Paras, 1907, 9 Phil. 367, citing Decision of Dec. 22,
1887) And so the fact that there was no visible injury caused on the body of the appellant which
necessitated medical attention, a circumstance noted by the trial court, is no ground for discrediting selfdefense; what is vital is that there was imminent peril to appellants life caused by the unlawful aggression
of her husband. The knife tucked in her husbands belt afforded appellant the only reasonable means with
which she could free and save herself from being strangled and choked to death. What this Court
expressed in the case of People vs. Lara, 1925, 48 Phil. 153, 160, is very true and applicable to the situation
now before Us, and We quote:
It should be borne in mind that in emergencies of this kind human nature does not act upon processes of
formal reason but in obedience to the instinct of self-preservation; and when it is apparent, as in this case,
that a person has reasonably acted upon this instinct, it is the duty of the courts to sanction the act and to
hold the actor irresponsible in law for the consequences.16
Equally relevant is the time-honored principle: Necessitas Non habet legem. Necessity knows no law.
The third element of self-defense is lack of sufficient provocation on the part of the person defending
himself Provocation is sufficient when it is proportionate to the aggression, that is, adequate enough to
impel one to attack the person claiming self-defense.17 Undoubtedly appellant herein did not give
sufficient provocation to warrant the aggression or attack on her person by her husband, Francisco. While
it was
________________
16 See also People vs. Encomienda, No. L-26750, August 18, 1972, 46 SCRA p. 522.
17 Guevaras supra p. 89, citing Decision of Supreme Court of Spain, February 20, 1893, 50 Jur. Crim. 166168; Padillas Criminal Law, Book I, 1971 ed., p. 197.
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196
understandable for Francisco to be angry at his wife for finding her on the road in the middle of the night,
however, he was not justified in inflicting bodily punishment with an intent to kill by choking his wifes
throat. All that appellant did was to provoke an imaginary commission of a wrong in the mind of her
husband, which is not a sufficient provocation under the law of self-defense. Upon being confronted by her
husband for being out late at night, accused gave a valid excuse that she went carolling with some friends
to earn some money for their child. January 2 was indeed within the Christmas season during which by
tradition people carol from house to house and receive monetary gifts in a Christian spirit of goodwill. The
deceased therefore should have given some consideration to his wifes excuse before jumping to
conclusions and taking the extreme measure of attempting to kill his wife.
IN VIEW OF THE ABOVE CONSIDERATIONS, We find that accused-appellant acted in the legitimate defense
of her person, and We accordingly set aside the judgment of conviction and ACQUIT her with costs de
oficio.
So Ordered.
Makalintal, C.J., Teehankee, Makasiar and Esguerra, JJ., concur.
Castro, J., On leave.
Judgment set aside.
Notes.a) Circumstances which negate plea of self-defense.The nature, number and location of the
wounds of the deceased, the unexplained nonpresentation of the bolo allegedly used by the deceased, the
failure of the appellant concerned to report immediately to the authorities the alleged attempt against him
by the deceased and the lack of motive on the part of the deceased to assault the accused all belie and
negative the plea of self-defense. (People vs. Constantino, L-23558, August 10, 1967).
b) Unlawful aggression.Real aggression presupposes an act positively strong, showing the wrongful
intent of the aggressor, not merely a threatening or intimidating attitude, but a material attack. (U.S. vs.
Banzuela, 31 Phil. 565; U.S. vs. Santos, 17 Phil. 87.) (People vs. Yucierto, CA-G.R. No. 1905-R, Oct. 9, 1947).
c) Reasonable necessity of means employed.As to the reasonable necessity of the means employed to
repel the
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197
Maspil vs. Romero
aggression, it has been held that this does not imply a material commensurability between the means of
attack and defense. What the law requires is rational equivalence, in the consideration of which will enter
as principal factors the emergency, the imminent danger to which the person attacked is exposed, and the
instinct, more than the reason, that moves or impels the defense, and, according to jurisprudence of
courts, the proportionateness thereof does not depend upon the harm done, but rests upon the imminent
danger of such injury. (People vs. Canson, CA-G.R. No. 3357-R, Oct. 25, 1949).
LEGAL RESEARCH SERVICE
See SCRA Quick Index-Digest, volume one, page 570 on Criminal Law.
Aquino, R.C., The Revised Penal Code, 2 vols., 1961 Edition.
Padilla, A., Criminal LawRevised Penal Code Annotated, 3 vols., 1972-74 Edition.
o0o
5. People vs Chua Hiong

(Separate Document)
6. People vs Yapyuco
G.R. Nos. 120744-46. June 25, 2012.*
SALVADOR YAPYUCO y ENRIQUEZ, petitioner, vs. HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE
PHILIPPINES, respondents.
G.R. No. 122677. June 25, 2012.*
MARIO D. REYES, ANDRES S. REYES and VIRGILIO A. MANGUERRA, petitioners, vs. HONORABLE
SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.
G.R. No. 122776. June 25, 2012.*
GERVACIO B. CUNANAN, JR. and ERNESTO PUNO, petitioners, vs. HONORABLE SANDIGANBAYAN and
PEOPLE OF THE PHILIPPINES, respondents.
Evidence; Extrajudicial Confession; The extrajudicial confession or admission of one accused is admissible
only against said accused, but is inadmissible against the other accused.Indeed, the extrajudicial
confession or admission of one accused is admissible only against said accused, but is inadmissible against
the other accused. But if the declarant or admitter repeats in court his extrajudicial admission, as Yapyuco
did in this case, during the trial and the other accused is accorded the opportunity to cross-examine the
admitter, the admission is admissible against both accused because then, it is transposed into a judicial
admission. It is thus perplexing why, despite the extrajudicial statements of Cunanan, Puno and Yapyuco,
as well as the latters testimony implicating them in the incident, they still had chosen to waive their right
to present evidence when, in fact, they could have shown detailed proof of their participation or nonparticipation in the offenses charged. We, therefore, reject their claim that they had been denied due
process in this regard, as they opted not to testify and be cross-examined by the
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* THIRD DIVISION.
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421
Yapyuco vs. Sandiganbayan
prosecution as to the truthfulness in their affidavits and, accordingly, disprove the inculpatory admissions
of their co-accused.
Criminal Law; Justifying Circumstances; Fulfillment of Duty; Lawful Exercise of a Right; The availability of
the justifying circumstance of fulfillment of duty or lawful exercise of a right or office under Article 11 (5) of
the Revised Penal Code rests on proof that (a) the accused acted in the performance of his duty or in the
lawful exercise of his right or office, and (b) the injury caused or the offense committed is the necessary
consequence of the due performance of such duty or the lawful exercise of such right or office.The
availability of the justifying circumstance of fulfillment of duty or lawful exercise of a right or office under
Article 11 (5) of the Revised Penal Code rests on proof that (a) the accused acted in the performance of his
duty or in the lawful exercise of his right or office, and (b) the injury caused or the offense committed is the
necessary consequence of the due performance of such duty or the lawful exercise of such right or office.
The justification is based on the complete absence of intent and negligence on the part of the accused,
inasmuch as guilt of a felony connotes that it was committed with criminal intent or with fault or
negligence. Where invoked, this ground for non-liability amounts to an acknowledgment that the accused
has caused the injury or has committed the offense charged for which, however, he may not be penalized
because the resulting injury or offense is a necessary consequence of the due performance of his duty or
the lawful exercise of his right or office.
Same; Same; Same; Same; A law enforcer in the performance of duty is justified in using such force as is
reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape,
recapture him if he escapes, and protect himself from bodily harm; He is, however, never justified in using
unnecessary force or in treating the offender with wanton violence, or in resorting to dangerous means
when the arrest could be effected otherwise.A law enforcer in the performance of duty is justified in
using such force as is reasonably necessary to secure and detain the offender, overcome his resistance,
prevent his escape, recapture him if he escapes, and protect himself from bodily harm. United States v.
Campo has laid down the rule that in the performance of his duty, an agent of the authorities is not
authorized to use force, except in an extreme case when he is attacked or is the subject of resistance, and
finds no other
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422
means to comply with his duty or cause himself to be respected and obeyed by the offender. In case injury
or death results from the exercise of such force, the same could be justified in inflicting the injury or
causing the death of the offender if the officer had used necessary force. He is, however, never justified in
using unnecessary force or in treating the offender with wanton violence, or in resorting to dangerous
means when the arrest could be effected otherwise.
Same; Mistake of Fact; In the context of criminal law, a mistake of fact is a misapprehension of a fact
which, if true, would have justified the act or omission which is the subject of the prosecution.We find
that the invocation of the concept of mistake of fact faces certain failure. In the context of criminal law, a
mistake of fact is a misapprehension of a fact which, if true, would have justified the act or omission
which is the subject of the prosecution. Generally, a reasonable mistake of fact is a defense to a charge of
crime where it negates the intent component of the crime. It may be a defense even if the offense charged
requires proof of only general intent. The inquiry is into the mistaken belief of the defendant, and it does
not look at all to the belief or state of mind of any other person. A proper invocation of this defense
requires (a) that the mistake be honest and reasonable; (b) that it be a matter of fact; and (c) that it negate
the culpability required to commit the crime or the existence of the mental state which the statute
prescribes with respect to an element of the offense.
Evidence; The prosecution must rely on the strength of its own evidence and not on the evidence of the
accused. The weakness of the defense of the accused does not relieve the prosecution of its responsibility
of proving guilt beyond reasonable doubt.The precept in all criminal cases is that the prosecution is
bound by the invariable requisite of establishing the guilt of the accused beyond reasonable doubt. The
prosecution must rely on the strength of its own evidence and not on the evidence of the accused. The
weakness of the defense of the accused does not relieve the prosecution of its responsibility of proving
guilt beyond reasonable doubt. By reasonable doubt is meant that doubt engendered by an investigation
of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of
guilt. The overriding consideration is not whether the court doubts the innocence of the accused, but
whether it entertains reasonable doubt as to his guilt.
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423
Criminal Law; Conspiracy; Article 8 of the Revised Penal Code provides that there is conspiracy when two
or more persons agree to commit a felony and decide to commit it. Conspiracy need not be proven by
direct evidence; Conspiracy may be implied if it is proved that two or more persons aimed by their acts
towards the accomplishment of the same unlawful object, each doing a part so that their combined acts,
though apparently independent of each other were, in fact, connected and cooperative, indicating a
closeness of personal association and a concurrence of sentiment.Article 8 of the Revised Penal Code
provides that there is conspiracy when two or more persons agree to commit a felony and decide to
commit it. Conspiracy need not be proven by direct evidence. It may be inferred from the conduct of the
accused before, during and after the commission of the crime, showing that they had acted with a
common purpose and design. Conspiracy may be implied if it is proved that two or more persons aimed by
their acts towards the accomplishment of the same unlawful object, each doing a part so that their
combined acts, though apparently independent of each other were, in fact, connected and cooperative,
indicating a closeness of personal association and a concurrence of sentiment. Conspiracy once found,
continues until the object of it has been accomplished and unless abandoned or broken up. To hold an
accused guilty as a co-principal by reason of conspiracy, he must be shown to have performed an overt act
in pursuance or furtherance of the complicity. There must be intentional participation in the transaction
with a view to the furtherance of the common design and purpose.
PETITIONS for review on certiorari of a decision of the Sandiganbayan.
Estelito P. Mendoza for petitioners in G.R. No. 122677.
Ponciano Carreon and Cuevas, De la Cuesta & De las Alas for petitioner in G.R. Nos. 120744-46.
Restituto M. David for petitioners in G.R. No. 122776.
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424
PERALTA,**
J.:
Law enforcers thrust their lives in unimaginable zones of peril. Yet resort to wanton violence is never
justified when their duty could be performed otherwise. A shoot first, think later disposition occupies no
decent place in a civilized society. Never has homicide or murder been a function of law enforcement. The
public peace is never predicated on the cost of human life.
These are petitions for review on certiorari under Rule 45 of the Rules of Court assailing the June 30, 1995
Decision1 of the Sandiganbayan in Criminal Case Nos. 16612, 16613 and 16614cases for murder,
frustrated murder and multiple counts of attempted murder, respectively. The cases are predicated on a
shooting incident on April 5, 1988 in Barangay Quebiawan, San Fernando, Pampanga which caused the
death of Leodevince Licup (Licup) and injured Noel Villanueva (Villanueva). Accused were petitioners
Salvador Yapyuco, Jr. (Yapyuco) and Generoso Cunanan, Jr. (Cunanan) and Ernesto Puno (Puno) who were
members of the Integrated National Police (INP)2 stationed at the Sindalan Substation in San Fernando,
Pampanga; Jose Pamintuan (Pamintuan) and Mario Reyes, who were barangay captains of Quebiawan and
Del Carmen, respectively; Ernesto Puno, Andres Reyes and Virgilio Manguerra (Manguerra), Carlos David,
Ruben Lugtu, Moises Lacson (Lacson), Renato Yu, Jaime Pabalan (Pabalan) and Carlos David (David), who
were either members of the Civil Home Defense Force (CHDF) or civilian volunteer officers in Barangays
Quebiawan, Del Carmen and Telebastagan. They were all charged
_______________
** Acting Chairperson, Per Special Order No. 1228 dated June 6, 2012.
1 Penned by Associate Justice Romeo M. Escareal (Chairman), with Associate Justices Minita V. ChicoNazario and Roberto M. Lagman, concurring; Rollo (G.R. Nos. 120744-46), pp. 7-80.
2 Now known as the Philippine National Police.
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VOL. 674, JUNE 25, 2012

425
with murder, multiple attempted murder and frustrated murder in three Informations, the inculpatory
portions of which read:
Criminal Case No. 16612:
That on or about the 5th day of April 1988, in Barangay Quebiawan, San Fernando, Pampanga,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, all public
officers, being then policemen, Brgy. Captains, Brgy. Tanod and members of the Civil Home Defense Force
(CHDF), respectively, confederating and mutually helping one another, and while responding to
information about the presence of armed men in said barangay and conducting surveillance thereof, thus
committing the offense in relation to their office, did then and there, with treachery and evident
premeditation, willfully, unlawfully and feloniously, and with deliberate intent to take the life of
Leodevince S. Licup, attack the latter with automatic weapons by firing directly at the green Toyota
Tamaraw jitney ridden by Leodevince S. Licup and inflicting multiple gunshot wounds which are necessarily
mortal on the different parts of the body, thereby causing the direct and immediate death of the latter.
CONTRARY TO LAW.3
premeditation, willfully, unlawfully and feloniously, and with intent to kill, attack Eduardo S. Flores,
Alejandro R. de Vera,
_______________
3 Records, Vol. 1, pp. 1-2.
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426
Restituto G. Calma and Raul V. Panlican with automatic weapons by firing directly at the green Toyota
Tamaraw jitney ridden by said Eduardo S. Flores, Alejandro R. de Vera, Restituto G. Calma and Raul V.
Panlican, having commenced the commission of murder directly by overt acts of execution which should
produce the murder by reason of some cause or accident other than their own spontaneous desistance.
CONTRARY TO LAW.4
premeditation, willfully, unlawfully and feloniously, and with intent of taking the life of Noel C. Villanueva,
attack the latter with automatic weapons by firing directly at the green Toyota Tamaraw jitney driven by
said Noel C. Villanueva and inflicting multiple gunshot wounds which are necessarily mortal and having
performed all the acts which would have produced the crime of murder, but which did not, by reason of
causes independent of the defendants will, namely, the able and timely medical assistance given to said
Noel C. Villanueva, which prevented his death.
CONTRARY TO LAW.5
Hailed to court on April 30, 1991 after having voluntarily surrendered to the authorities,6 the accused
except Pabalan
_______________
6 Records, Vol. 1, p. 46.
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427
who died earlier on June 12, 1990,7 and Yapyuco who was then allegedly indisposed8entered individual
pleas of not guilty.9 A month later, Yapyuco voluntarily surrendered to the authorities, and at his
arraignment likewise entered a negative plea.10 In the meantime, Mario Reyes, Andres Reyes, David,
Lugtu, Lacson, Yu and Manguerra jointly filed a Motion for Bail relative to Criminal Case No. 16612.11 Said
motion was heard on the premise, as previously agreed upon by both the prosecution and the defense,
that these cases would be jointly tried and that the evidence adduced at said hearing would automatically
constitute evidence at the trial on the merits.12 On May 10, 1991, the Sandiganbayan granted bail in
Criminal Case No. 16612.13 Yapyuco likewise applied for bail on May 15, 1991 and the same was also
granted on May 21, 1991.14 Pamintuan died on November 21, 1992,15 and accordingly, the charges
against him were dismissed.
At the July 4, 1991 pre-trial conference, the remaining accused waived the pre-trial inquest.16 Hence, joint
trial on the merits ensued and picked up from where the presentation of evidence left off at the hearing on
the bail applications.
The prosecution established that in the evening of April 5, 1988, Villanueva, Flores, Calma, De Vera,
Panlican and Licup were at the residence of Salangsang as guests at the barrio
_______________
7 Accordingly, the charges against him were dismissed. See April 30, 1991 Order, id., at p. 108. TSN, April
30, 1991, pp. 3-5.
8 April 30, 1991 Order, records, Vol. 1, pp. 107-108; TSN, April 30, 1991, pp. 12-14. See also records, Vol. 1,
pp. 191-197.
10 Id., at p. 307.
12 Resolution dated May 10, 1991, records, Vol. 1, pp. 198-205.
13 Id., at p. 205.
14 Id., at pp. 300-308.
15 See certificate of Death, records, Vol. II, p. 707; see also Manifestation dated December 11, 1992, id., at
pp. 703-704.
16 Records, Vol. 1, p. 388.
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428
fiesta celebrations between 5:00 and 7:30 p.m. The company decided to leave at around 7:30 p.m., shortly
after the religious procession had passed. As they were all inebriated, Salangsang reminded Villanueva,
who was on the wheel, to drive carefully and watch out for potholes and open canals on the road. With
Licup in the passenger seat and the rest of his companions at the back of his Tamaraw jeepney, Villanueva
allegedly proceeded at 5-10 kph with headlights dimmed. Suddenly, as they were approaching a curve on
the road, they met a burst of gunfire and instantly, Villanueva and Licup were both wounded and bleeding
profusely.17
Both Flores and Villanueva, contrary to what the defense would claim, allegedly did not see any one on the
road flag them down.18 In open court, Flores executed a sketch19 depicting the relative location of the
Tamaraw jeepney on the road, the residence of Salangsang where they had come from and the house
situated on the right side of the road right after the curve where the jeepney had taken a left turn; he
identified said house to be that of a certain Lenlen Naron where the gunmen allegedly took post and
opened fire at him and his companions. He could not tell how many firearms were used. He recounted that
after the shooting, he, unaware that Licup and Villanueva were wounded, jumped out of the jeepney when
he saw from behind them Pamintuan emerging from the yard of Narons house. Frantic and shaken, he
instantaneously introduced himself and his companions to be employees of San Miguel Corporation but
instead, Pamintuan reproved them for not stopping when flagged. At this point, he was distracted when
Villanueva cried out and told him to summon Salangsang for help as he (Villanueva) and Licup were
wounded. He dashed back to Salangsangs house as instructed and, returning to the scene, he observed
that peti_______________
17 TSN, April 30, 1991, pp. 27-30, 32-34, 37-40, 42-50, 52-53; TSN, July 5, 1991, pp. 20-22.
18 Id.; Id.; TSN, May 2, 1991, pp. 25-26.
19 Exhibits L, L-1 to L-5.
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tioner Yu was also there, and Villanueva and Licup were being loaded into a Sarao jeepney to be taken to
the hospital.20 This was corroborated by Villanueva who stated that as soon as the firing had ceased, two
armed men, together with Pamintuan, approached them and transferred him and Licup to another jeepney
and taken to the nearby St. Francis Hospital.21
Flores remembered that there were two sudden bursts of gunfire which very rapidly succeeded each other,
and that they were given no warning shot at all contrary to what the defense would say.22 He professed
that he, together with his co-passengers, were also aboard the Sarao jeepney on its way to the hospital
and inside it he observed two men, each holding long firearms, seated beside the driver. He continued that
as soon as he and his companions had been dropped off at the hospital, the driver of the Sarao jeepney
immediately drove off together with his two armed companions.23 He further narrated that the day after
the shooting, he brought Licup to the Makati Medical Center where the latter expired on April 7, 1988.24
He claimed that all the accused in the case had not been known to him prior to the incident, except for
Pamintuan whom he identified to be his wifes uncle and with whom he denied having had any rift nor
with the other accused for that matter, which would have otherwise inspired ill motives.25 He claimed the
bullet holes on the Tamaraw jeepney were on the passenger side and that there were no other bullet holes
at the back or in any other portion of the vehicle.26
_______________
20 TSN, May 2, 1991, pp. 6-13, 15-17-19, 22-25, 26-29, 45-46, 52-53; TSN, July 5, 1991, pp. 38-46; 48-49.
21 TSN, April 30, 1991, pp. 27-30, 32-34, 37-40, 42-50, 52-53; TSN, July 5, 1991, pp. 20-22.
22 TSN, May 2, 1991, pp. 25-26.
23 Id., at pp. 31-32, 44-45, 51.
24 Id., at pp. 37 and 55.
25 Id., at p. 16.
26 Id., at pp. 57-59.

430
430
Salangsang, also an electrician at the San Miguel Corporation plant, affirmed the presence of his
companions at his residence on the subject date and time, and corroborated Villanuevas and Flores
narration of the events immediately preceding the shooting. He recounted that after seeing off his guests
shortly after the procession had passed his house and reminding them to proceed carefully on the potholestudded roads, he was alarmed when moments later, he heard a volley of gunfire from a distance which
was shortly followed by Flores frantic call for help. He immediately proceeded to the scene on his bicycle
and saw Pamintuan by the lamppost just outside the gate of Narons house where, inside, he noticed a
congregation of more or less six people whom he could not recognize. 27 At this point, he witnessed Licup
and Villanueva being loaded into another jeepney occupied by three men who appeared to be in uniform.
He then retrieved the keys of the Tamaraw jeepney from Villanueva and decided to deliver it to his
mothers house, but before driving off, he allegedly caught a glance of Mario Reyes on the wheel of an
owner-type jeepney idling in front of the ill-fated Tamaraw; it was the same jeepney which he
remembered to be that frequently used by Yapyuco in patrolling the barangay. He claimed he spent the
night at his mothers house and in the morning, a policeman came looking for him with whom, however,
he was not able to talk.28
Salangsang observed that the scene of the incident was dark because the electric post in front of Narons
house was strangely not lit when he arrived, and that none of the neighboring houses was illuminated. He
admitted his uncertainty as to whether it was Yapyucos group or the group of Pamintuan that brought his
injured companions to the hospital, but he could tell with certainty that it was the Sarao
_______________
27 TSN, July 23, 1991, pp. 38-41; TSN, May 3, 1991, pp. 4-10, 18, 27, 29.
28 Id., at pp. 17-20, 24-26, 41-47; id., at pp. 10-14, 18-23.
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jeepney previously identified by Villanueva and Flores that brought his injured companions to the
hospital.29
Daisy Dabor, forensic chemist at the Philippine National Police Crime Laboratory in Camp Olivas, affirmed
that she had previously examined the firearms suspected to have been used by petitioners in the shooting
and found them positive for gunpowder residue. She could not, however, determine exactly when the
firearms were discharged; neither could she tell how many firearms were discharged that night nor the
relative positions of the gunmen. She admitted having declined to administer paraffin test on petitioners
and on the other accused because the opportunity therefor came only 72 hours after the incident. She
affirmed having also examined the Tamaraw jeepney and found eleven (11) bullet holes on it, most of
which had punctured the door at the passenger side of the vehicle at oblique and perpendicular directions.
She explained, rather inconclusively, that the bullets that hit at an angle might have been fired while the
jeepney was either at a standstill or moving forward in a straight line, or gradually making a turn at the
curve on the road.30 Additionally, Silvestre Lapitan, administrative and supply officer of the INP-Pampanga
Provincial Command tasked with the issuance of firearms and ammunitions to members of the local police
force and CHDF and CVO members, identified in court the memorandum receipts for the firearms he had
issued to Mario Reyes, Andres Reyes, Manguerra, Pabalan and Yapyuco.31
Dr. Pedro Solis, Jr., medico-legal consultant at the Makati Medical Center, examined the injuries of
Villanueva and Licup on April 6, 1988. He recovered multiple metal shrapnel
_______________
29 TSN, May 3, 1991, pp. 14-15.
30 TSN, July 24, 1991, pp. 38-40, 47-55; TSN, November 26, 1991, pp. 4-8, 10-14, 19-20. See Technical
Report No. PI-032-88, Exhibit J.
31 TSN, April 30, 1991, pp. 17-19. See Memorandum Receipts, Exhibits D, E, F, G, H.
432
432
from the occipital region of Villanuevas head as well as from the posterior aspect of his chest; he noted
nothing serious in these wounds in that the incapacity would last between 10 and 30 days only. He also
located a bullet wound on the front lateral portion of the right thigh, and he theorized that this wound
would be caused by a firearm discharged in front of the victim, assuming the assailant and the victim were
both standing upright on the ground and the firearm was fired from the level of the assailants waist; but if
the victim was seated, the position of his thigh must be horizontal so that with the shot coming from his
front, the trajectory of the bullet would be upward. He hypothesized that if the shot would come behind
Villanueva, the bullet would enter the thigh of the seated victim and exit at a lower level.32
With respect to Licup, Dr. Solis declared he was still alive when examined. On the patient, he noted a
lacerated wound at the right temporal region of the headone consistent with being hit by a hard and
blunt object and not a bullet. He noted three (3) gunshot wounds the locations of which suggested that
Licup was upright when fired upon from the front: one is a through-and-through wound in the middle
lateral aspect of the middle portion of the right leg; another, through-and-through wound at the middle
portion of the right forearm; and third one, a wound in the abdomen which critically and fatally involved
the stomach and the intestines. He hypothesized that if Licup was seated in the passenger seat as claimed,
his right leg must have been exposed and the assailant must have been in front of him holding the gun
slightly higher than the level of the bullet entry in the leg. He found that the wound in the abdomen had
entered from the left side and crossed over to and exited at the right, which suggested that the gunman
must have been positioned at Licups left side. He explained that if this wound had been inflicted ahead
_______________
32 TSN, October 22, 1991, pp. 7, 10-11, 13-20, 42-43, 49-50. Dr. Pedro Solis appears to have authored a
book on legal Medicine in 1964. See Medico-legal Report dated April 6, 1988, Exhibit I.
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of that in the forearm, then the former must have been fired after Licup had changed his position as a
reaction to the first bullet that hit him. He said that the wound on the leg must have been caused by a
bullet fired at the victims back and hit the jeepney at a downward angle without hitting any hard surface
prior.33
Dr. Solis believed that the wound on Licups right forearm must have been caused by a bullet fired from
the front but slightly obliquely to the right of the victim. Hypothesizing, he held the improbability of Licup
being hit on the abdomen, considering that he might have changed position following the infliction of the
other wounds, unless there was more than one assailant who fired multiple shots from either side of the
Tamaraw jeepney; however, he proceeded to rule out the possibility of Licup having changed position
especially if the gunfire was delivered very rapidly. He could not tell which of Licups three wounds was
first inflicted, yet it could be that the bullet to the abdomen was delivered ahead of the others because it
would have caused Licup to lean forward and stoop down with his head lying low and steady.34
Finally, Atty. Victor Bartolome, hearing officer at the National Police Commission (NAPOLCOM) affirmed
that the accused police officers Yapyuco, Cunanan and Puno had been administratively charged with and
tried for gross misconduct as a consequence of the subject shooting incident and that he had in fact
conducted investigations thereon sometime in 1989 and 1990 which culminated in their dismissal from
service.35 Dolly Porquerio, stenographer at the NAPOLCOM, testified that at the hearing of the
administrative case, Yapyuco authenticated the report on the shooting incident dated April 5, 1988 which
he had previously prepared at his office. This, according to her, together with the sketch show_______________
33 TSN, October 22, 1991, pp. 21-23, 26-28, 30-34, 37-42, 50-53.
34 Id., at pp. 44-48.
35 TSN, October 7, 1991, pp. 12, 14-15.

434
434
ing the relative position of the responding law enforcers and the Tamaraw jeepney at the scene of the
incident, had been forwarded to the NAPOLCOM Central Office for consideration.36 The Sandiganbayan, in
fact, subpoenaed these documents together with the joint counter-affidavits which had been submitted in
that case by Yapyuco, Cunanan and Puno.
Of all the accused, only Yapyuco took the stand for the defense. He identified himself as the commander of
the Sindalan Police Substation in San Fernando, Pampanga and the superior officer of petitioners Cunanan
and Puno and of the accused Yu whose jurisdiction included Barangays Quebiawan and Telebastagan. He
narrated that in the afternoon of April 5, 1988, he and his men were investigating a physical injuries case
when Yu suddenly received a summon for police assistance from David, who supposedly was instructed by
Pamintuan, concerning a reported presence of armed NPA members in Quebiawan. Yapyuco allegedly
called on their main station in San Fernando for reinforcement but at the time no additional men could be
dispatched. Hence, he decided to respond and instructed his men to put on their uniforms and bring their
M-16 rifles with them.37
Yapyuco continued that at the place appointed, he and his group met with Pamintuan who told him that he
had earlier spotted four (4) men carrying long firearms. As if sizing up their collective strength, Pamintuan
allegedly intimated that he and barangay captain Mario Reyes of nearby Del Carmen had also brought in a
number of armed men and that there were likewise Cafgu members convened at the residence of Naron.
Moments later, Pamintuan announced the approach of his suspects, hence Yapyuco, Cunanan and Puno
took post in the middle of the road at the curve where the Tamaraw jeepney conveying the victims would
make an inevitable turn. As
_______________
36 TSN, October 25, 1991, pp. 17-44.
37 TSN, September 15, 1993, pp. 5-12; TSN, November 8, 1993, p. 10.
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the jeepney came much closer, Pamintuan announced that it was the target vehicle, so he, with Cunanan
and Puno behind him, allegedly flagged it down and signaled for it to stop. He claimed that instead of
stopping, the jeepney accelerated and swerved to its left. This allegedly inspired him, and his fellow police
officers Cunanan and Puno,38 to fire warning shots but the jeepney continued pacing forward, hence they
were impelled to fire at the tires thereof and instantaneously, gunshots allegedly came bursting from the
direction of Narons house directly at the subject jeepney.39
Yapyuco recalled that one of the occupants of the jeepney then alighted and exclaimed at Pamintuan that
they were San Miguel Corporation employees. Holding their fire, Yapyuco and his men then immediately
searched the vehicle but found no firearms but instead, two injured passengers whom they loaded into his
jeepney and delivered to nearby St. Francis Hospital. From there he and his men returned to the scene
supposedly to investigate and look for the people who fired directly at the jeepney. They found no one; the
Tamaraw jeepney was likewise gone.40
Yapyuco explained that the peace and order situation in Barangay Quebiawan at the time was in bad
shape, as in fact there were several law enforcement officers in the area who
_______________
38 Memorandum of Cunanan and Puno filed with the Sandiganbayan, Rollo (G.R. No. 122776), p. 126.
39 TSN, September 15, 1993, pp. 13-15, 18-21; TSN, November 8, 1993, pp. 3, 5, 12, 23-25, 31. See also
Joint Counter Affidavit of Cunanan and Puno, dated July 20, 1988, in which they stated that their team
was forced to fire at the said vehicle when it did not heed the supposed warning shots, Exhibit A. In
their earlier Joint Affidavit dated April 5, 1988, Yapyuco, Cunanan and Puno stated that after firing warning
shots in the air, the subject jeepney accelerated its speed which constrained (them) to fire directly to (sic)
the said fleeing vehicle, Exhibit O.
40 TSN, September 15, 1993, pp. 22-23; TSN, November 8, 1993, pp. 6-7, 10-11, 21-23.
436
436
had been ambushed supposedly by rebel elements,41 and that he frequently patrolled the barangay on
account of reported sightings of unidentified armed men therein.42 That night, he said, his group which
responded to the scene were twelve (12) in all, comprised of Cunanan and Puno from the Sindalan Police
Substation, 43 the team composed of Pamintuan and his men, as well as the team headed by Captain
Mario Reyes. He admitted that all of them, including himself, were armed.44 He denied that they had
committed an ambuscade because otherwise, all the occupants of the Tamaraw jeepney would have been
killed.45 He said that the shots which directly hit the passenger door of the jeepney did not come from him
or from his fellow police officers but rather from Cafgu members assembled in the residence of Naron,
inasmuch as said shots were fired only when the jeepney had gone past the spot on the road where they
were assembled.46
Furthermore, Yapyuco professed that he had not communicated with any one of the accused after the
incident because he was at the time very confused; yet he did know that his co-accused had already been
investigated by the main police station in San Fernando, but the inquiries did not include himself, Cunanan
and Puno.47 He admitted an administrative case against him, Cunanan and Puno at the close of which they
had been ordered dismissed from service; yet on appeal, the decision was reversed and they were
exonerated. He likewise alluded to an investigation independently conducted by their station commander,
S/Supt. Rolando Cinco.48
_______________
41 Id., at pp. 23-25; Id., at p. 4.
42 TSN, November 8, 1993, pp. 12, 15-16.
43 Id., at pp. 6-7.
44 TSN, September 15, 1993, p. 23; TSN, November 8, 1993,
pp. 7-8, 10-11, 20.
45 TSN, November 8, 1993, p. 5.
46 Id., at pp. 8-9.
47 Id., at pp. 21-23.
48 TSN, September 15, 1993, pp. 26-29.
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S/Supt Rolando Cinco, then Station Commander of the INP in San Fernando, Pampanga acknowledged the
volatility of the peace and order situation in his jurisdiction, where members of the police force had fallen
victims of ambuscade by lawless elements. He said that he himself has actually conducted investigations on
the Pamintuan report that rebel elements had been trying to infiltrate the employment force of San Miguel
Corporation plant, and that he has accordingly conducted clearing operations in sugarcane plantations in
the barangay. He intimated that days prior to the incident, Yapyucos team had already been alerted of the
presence of NPA members in the area. Corroborating Yapyucos declaration, he confessed having
investigated the shooting incident and making a report on it in which, curiously, was supposedly attached
Pamintuans statement referring to Flores as being married to a resident of Barangay Quebiawan and
found after surveillance to be frequently visited by NPA members. He affirmed having found that guns
were indeed fired that night and that the chief investigator was able to gather bullet shells from the
scene.49
Cunanan and Puno did not take the witness stand but adopted the testimony of Yapyuco as well as the
latters documentary evidence.50 Mario Reyes, Andres Reyes, Lugtu, Lacson, Yu and Manguera, waived
their right to present evidence and submitted their memorandum as told.51
The Sandiganbayan reduced the basic issue to whether the accused had acted in the regular and lawful
performance of their duties in the maintenance of peace and order either as barangay officials and as
members of the police and the CHDF, and hence, could take shelter in the justifying circumstance provided
in Article 11 (5) of the Revised Penal Code; or
_______________
49 TSN, November 22, 1993, pp. 26-36, 40-43, 46-47.
50 See Order dated April 6, 1994, records, Vol. II, p. 955.
51 See Manifestation and Motion dated May 6, 1993, id., at pp. 759-761, and Resolution dated June 1,
1993, id., at pp. 763-764.
438
438
whether they had deliberately ambushed the victims with the intent of killing them.52 With the evidence
in hand, it found Yapyuco, Cunanan, Puno, Manguera and Mario and Andres Reyes guilty as co-principals in
the separate offense of homicide for the eventual death of Licup (instead of murder as charged in Criminal
Case No. 16612) and of attempted homicide for the injury sustained by Villanueva (instead of frustrated
murder as charged in Criminal Case No. 16614), and acquitted the rest in those cases. It acquitted all of
them of attempted murder charged in Criminal Case No. 16613 in respect of Flores, Panlican, De Vera and
Calma. The dispositive portion of the June 30, 1995 Joint Decision reads:
WHEREFORE, judgment is hereby rendered as follows:
I. In Crim. Case No. 16612, accused Salvador Yapyuco y Enriquez, Generoso Cunanan, Jr. y Basco, Ernesto
Puno y Tungol, Mario Reyes y David, Andres Reyes y Salangsang and Virgilio Manguerra y Adona are hereby
found GUILTY beyond reasonable doubt as co-principals in the offense of Homicide, as defined and
penalized under Article 249 of the Revised Penal Code, and crediting all of them with the mitigating
circumstance of voluntary surrender, without any aggravating circumstance present or proven, each of said
accused is hereby sentenced to suffer an indeterminate penalty ranging from SIX (6) YEARS and ONE (1)
DAY of prision correccional, as the minimum, to TWELVE (12) YEARS and ONE (1) DAY of reclusion
temporal, as the maximum; to indemnify, jointly and severally, the heirs of the deceased victim Leodevince
Licup in the amounts of P77,000.00 as actual damages and P600,000.00 as moral/exemplary damages, and
to pay their proportionate shares of the costs of said action.
II. In Crim. Case No. 16613, for insufficiency of evidence, all the accused charged in the information,
namely, Salvador Yapyuco y Enriquez, Generoso Cunanan, Jr. y Basco, Ernesto Puno y Tungol, Mario Reyes
y David, Carlos David y Baez, Ruben Lugtu y Lacson, Moises Lacson y Adona, Renato Yu y Barrera,
_______________
52 Rollo (G.R. Nos. 120744-46), p. 55.
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Andres Reyes y Salangsang and Virgilio Manguerra y Adona are hereby acquitted of the offense of Multiple
Attempted Murder charged therein, with costs de oficio.
III. In Crim. Case No. 16614, accused Salvador Yapyuco y Enriquez, Generoso Cunanan, Jr. y Basco,
Ernesto Puno y Tungol, Mario Reyes y David, Andres Reyes y Salangsang and Virgilio Manguerra y Adona
are hereby found GUILTY beyond reasonable doubt as co-principals in the offense Attempted Homicide, as
defined and penalized under Article 249, in relation to Article 6, paragraph 3, both of the Revised Penal
Code, and crediting them with the mitigating circumstance of voluntary surrender, without any aggravating
circumstance present or proven, each of said accused is hereby sentenced to suffer an indeterminate
penalty ranging from SIX (6) MONTHS and ONE (1) DAY of prision correccional as the minimum, to SIX (6)
YEARS and ONE (1) DAY of prision mayor as the maximum; to indemnify, jointly and severally, the offended
party Noel Villanueva in the amount of P51,700.00 as actual and compensatory damages, plus P120,000.00
as moral/exemplary damages, and to pay their proportionate share of the costs of said action.
SO ORDERED.53
The Sandiganbayan declared that the shootout which caused injuries to Villanueva and which brought the
eventual death of Licup has been committed by petitioners herein willfully under the guise of maintaining
peace and order;54 that the acts performed by them preparatory to the shooting, which ensured the
execution of their evil plan without risk to themselves, demonstrate a clear intent to kill the occupants of
the subject vehicle; that the fact they had by collective action deliberately and consciously intended to
inflict harm and injury and had voluntarily performed those acts negates their defense of lawful
performance of official duty;55 that the the_______________
53 Id., at pp. 77-79.
54 Id., at pp. 56-57.
55 Id., at pp. 64-66.
440
440
ory of mistaken belief could not likewise benefit petitioners because there was supposedly no showing that
they had sufficient basis or probable cause to rely fully on Pamintuans report that the victims were armed
NPA members, and they have not been able by evidence to preclude ulterior motives or gross inexcusable
negligence when they acted as they did;56 that there was insufficient or total absence of factual basis to
assume that the occupants of the jeepney were members of the NPA or criminals for that matter; and that
the shooting incident could not have been the product of a well-planned and well-coordinated police
operation but was the result of either a hidden agenda concocted by Barangay Captains Mario Reyes and
Pamintuan, or a hasty and amateurish attempt to gain commendation.57
These findings obtain context principally from the open court statements of prosecution witnesses
Villanueva, Flores and Salangsang, particularly on the circumstances prior to the subject incident. The
Sandiganbayan pointed out that the Tamaraw jeepney would have indeed stopped if it had truly been
flagged down as claimed by Yapyuco especially sinceas it turned out after the search of the vehiclethey
had no firearms with them, and hence, they had nothing to be scared of.58 It observed that while
Salangsang and Flores had been bona fide residents of Barangay Quebiawan, then it would be impossible
for Pamintuan, barangay captain no less, not to have known them and the location of their houses which
were not far from the scene of the incident; so much so that the presence of the victims and of the
Tamaraw jeepney in Salangsangs house that evening could not have possibly escaped his notice. In this
regard, it noted that Pamintuans Sworn Statement dated April 11, 1988 did not sufficiently explain his
suspicions as to the identities of the victims as well as his apparent certainty on the identity and where_______________
56 Id., at pp. 69-70.
57 Id., at pp. 64-65.
58 Id., at p. 61.
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abouts of the subject Tamaraw jeepney. 59 It surmised how the defense, especially Yapyuco in his
testimony, could have failed to explain why a large group of armed menwhich allegedly included Cafgu
members from neighboring barangayswere assembled at the house of Naron that night, and how
petitioners were able to identify the Tamaraw jeepney to be the target vehicle. From this, it inferred that
petitioners had already known that their suspect vehicle would be coming from the direction of
Salangsangs housesuch knowledge is supposedly evident first, in the manner by which they
advantageously positioned themselves at the scene to afford a direct line of fire at the target vehicle, and
second, in the fact that the house of Naron, the neighboring houses and the electric post referred to by
prosecution witnesses were deliberately not lit that night.60
The Sandiganbayan also drew information from Flores sketch depicting the position of the Tamaraw
jeepney and the assailants on the road, and concluded that judging by the bullet holes on the right side of
the jeepney and by the declarations of Dr. Solis respecting the trajectory of the bullets that hit Villanueva
and Licup, the assailants were inside the yard of Narons residence and the shots were fired at the jeepney
while it was slowly moving past them. It also gave weight to the testimony and the report of Dabor telling
that the service firearms of petitioners had been tested and found to be positive of gunpowder residue,
therefore indicating that they had indeed been discharged.61
The Sandiganbayan summed up what it found to be overwhelming circumstantial evidence pointing to the
culpability of petitioners: the nature and location of the bullet holes on the jeepney and the gunshot
wounds on the victims, as well as the trajectory of the bullets that caused such damage and
_______________
59 Id., at p. 58.
60 Id., at pp. 60-61.
61 Id., at pp. 60-63.
442
442
injuries; particularly, the number, location and trajectory of the bullets that hit the front passenger side of
the jeepney; the strategic placement of the accused on the right side of the street and inside the front yard
of Narons house; the deliberate shutting off of the lights in the nearby houses and the lamp post; and the
positive ballistic findings on the firearms of petitioners.62
This evidentiary resum, according to the Sandiganbayan, not only fortified petitioners admission that
they did discharge their firearms, but also provided a predicate to its conclusion that petitioners conspired
with one another to achieve a common purpose, design and objective to harm the unarmed and innocent
victims. Thus, since there was no conclusive proof of who among the several accused had actually fired the
gunshots that injured Villanueva and fatally wounded Licup, the Sandiganbayan imposed collective
responsibility on all those who were shown to have discharged their firearms that nightpetitioners
herein.63 Interestingly, it was speculated that the manner by which the accused collectively and
individually acted prior or subsequent to or contemporaneously with the shooting indicated that they were
either drunk or that some, if not all of them, had a grudge against the employees of San Miguel
Corporation;64 and that on the basis of the self-serving evidence adduced by the defense, there could
possibly have been a massive cover-up of the incident by Philippine Constabulary and INP authorities in
Pampanga as well as by the NAPOLCOM.65 It likewise found very consequential the fact that the other
accused had chosen not to take the witness stand; this, supposedly because it was incumbent upon them
to individually explain their participation in the shooting in view of the weight of the prosecution evidence,
their invocation of the
_______________
62 Id., at pp. 73-74.
63 Id., at pp. 74-75.
64 Id., at pp. 64-65.
65 Id., at p. 69.
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justifying circumstance of lawful performance of official duty and the declaration of some of them in their
affidavits to the effect that they had been deployed that evening in the front yard of Narons residence
from which the volley of gunfire was discharged as admitted by Yapyuco himself.66
As to the nature of the offenses committed, the Sandiganbayan found that the qualifying circumstance of
treachery has not been proved because first, it was supposedly not shown how the aggression commenced
and how the acts causing injury to Villanueva and fatally injuring Licup began and developed, and second,
this circumstance must be supported by proof of a deliberate and conscious adoption of the mode of
attack and cannot be drawn from mere suppositions or from circumstances immediately preceding the
aggression. The same finding holds true for evident premeditation because between the time Yapyuco
received the summons for assistance from Pamintuan through David and the time he and his men
responded at the scene, there was found to be no sufficient time to allow for the materialization of all the
elements of that circumstance.67
Finally as to damages, Villanueva had testified that his injury required leave from work for 60 days which
were all charged against his accumulated leave credits;68 that he was earning P8,350.00 monthly;69 and
that he had spent P35,000.00 for the repair of his Tamaraw jeepney.70 Also, Teodoro Licup had stated that
his family had spent P18,000.00 for the funeral of his son, P28,000.00 during the wake, P11,000.00 for the
funeral plot and P20,000.00 in attorneys fees for the prosecution of these cases.71 He also submitted a
certification from San Miguel Corporation reflecting
_______________
66 Id., at pp. 68-69.
67 Id., at pp. 71-73.
68 Exhibit X.
69 TSN, July 5, 1991, pp. 7-9, 27.
70 Id., at pp. 11-12, 17.
71 TSN, January 9, 1991, pp. 4-12.
444
444
the income of his deceased son.72 On these bases, the Sandiganbayan ordered petitioners, jointly and
severally, to indemnify (a) Villanueva P51,700.00 as actual and compensatory damages and P120,000.00 as
moral/exemplary damages, plus the proportionate costs of the action, and (b) the heirs of deceased Licup
in the amount of P77,000.00 as actual damages and P600,000.00 as moral/exemplary damages, plus the
proportionate costs of the action.
Petitioners motion for reconsideration was denied; hence, the present recourse.
In G.R. Nos. 120744-46, Yapyuco disputes the Sandiganbayans finding of conspiracy and labels the same to
be conjectural. He points out that the court a quo has not clearly established that he had by positive acts
intended to participate in any criminal object in common with the other accused, and that his participation
in a supposed common criminal object has not been proved beyond reasonable doubt. He believes the
finding is belied by Flores and Villanueva, who saw him at the scene only after the shooting incident when
the wounded passengers were taken to the hospital on his jeepney.73 He also points out the uncertainty in
the Sandiganbayans declaration that the incident could not have been the product of a well-planned
police operation, but rather was the result of either a hidden agenda concocted against the victims by the
barangay officials involved or an amateurish attempt on their part to earn commendation. He theorizes
that, if it were the latter alternative, then he could hardly be found guilty of homicide or frustrated
homicide but rather of reckless imprudence resulting in homicide and frustrated homicide.74 He laments
that, assuming arguendo that the injuries sustained by the victims were caused by his warning shots, he
must nevertheless be exonerated because he responded to the scene
_______________
72 Exhibit FF.
73 Rollo (G.R. Nos. 120744-46), p. 96.
74 Id., at pp. 93-95.
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445
of the incident as a bona fide member of the police force and, hence, his presence at the scene of the
incident was in line with the fulfillment of his duty as he was in fact in the lawful performance thereofa
fact which has been affirmed by the NAPOLCOM en banc when it dismissed on appeal the complaint for
gross misconduct against him, Cunanan and Puno.75 He also invokes the concept of mistake of fact and
attributes to Pamintuan the responsibility why he, as well as the other accused in these cases, had
entertained the belief that the suspects were armed rebel elements.76
In G.R. No. 122677, petitioners Manguerra, Mario Reyes and Andres Reyes claim that the Sandiganbayan
has not proved their guilt beyond reasonable doubt, and the assailed decision was based on acts the
evidence for which has been adduced at a separate trial but erroneously attributed to them. They explain
that there were two sets of accused, in the case: one, the police officers comprised of Yapyuco, Cunanan
and Puno and, two, the barangay officials and CHDFs comprised of David, Lugtu, Lacson, Yu and themselves
who had waived the presentation of evidence. They question their conviction of the charges vis-a-vis the
acquittal of David, Lugtu, Lacson and Yu who, like them, were barangay officials and had waived their right
to present evidence in their behalf. They emphasize in this regard that all accused barangay officials and
CHDFs did not participate in the presentation of the evidence by the accused police officers and, hence,
the finding that they too had fired upon the Tamaraw jeepney is hardly based on an established fact.77
Also, they believe that the findings of fact by the Sandiganbayan were based on inadmissible evidence,
specifically on evidence rejected by the court itself and those presented in a separate trial. They label the
assailed decision to be speculative, conjectural and suspicious and, hence, antithetical to the quantum of
evidence
_______________
75 Id., at p. 108.
76 Id., at p. 103.
77 Rollo (G.R. No. 122677), pp. 57-65.
446
446
required in a criminal prosecution.78 Finally, they lament that the finding of conspiracy has no basis in
evidence and that the prosecution has not even shown that they were with the other accused at the scene
of the incident or that they were among those who fired at the victims, and neither were they identified as
among the perpetrators of the crime.79
In G.R. No. 122776, Cunanan and Puno likewise dispute the finding of conspiracy. They claim that judging
by the uncertainty in the conclusion of the Sandiganbayan as to whether the incident was the result of a
legitimate police operation or a careless plot designed by the accused to obtain commendation, conspiracy
has not been proved beyond reasonable doubt. This, because they believe the prosecution has not, as far
as both of them are concerned, shown that they had ever been part of such malicious design to commit an
ambuscade as that alluded to in the assailed decision. They advance that as police officers, they merely
followed orders from their commander, Yapyuco, but were not privy to the conversation among the latter,
David and Pamintuan, moments before the shooting. They posit they could hardly be assumed to have had
community of criminal design with the rest of the accused.80 They affirm Yapyucos statement that they
fired warning shots at the subject jeepney,81 but only after it had passed the place where they were
posted and only after it failed to stop when flagged down as it then became apparent that it was going to
speed awayas supposedly shown by bullet holes on the chassis and not on the rear portion of the
jeepney. They also harp on the absence of proof of ill motives that would have otherwise urged them to
commit the crimes charged, especially since none of the victims had been personally or even remotely
known to either of them. That they were not intending to commit a crime is, they be_______________
78 Id., at pp. 75-81.
79 Id., at pp. 82-89.
80 Rollo (G.R. No. 122776), pp. 101-103.
81 Id.
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lieve, shown by the fact that they did not directly aim their rifles at the passengers of the jeepney and that
in fact, they immediately held their fire when Flores identified themselves as employees of San Miguel
Corporation. They conceded that if killing was their intent, then they could have easily fired at the victims
directly.82
Commenting on these petitions, the Office of the Special Prosecutor stands by the finding of conspiracy as
established by the fact that all accused, some of them armed, had assembled themselves and awaited the
suspect vehicle as though having previously known that it would be coming from Salangsangs residence. It
posits that the manner by which the jeepney was fired upon demonstrates a community of purpose and
design to commit the crimes charged.83 It believes that criminal intent is discernible from the posts the
accused had chosen to take on the road that would give them a direct line of fire at the targetas shown
by the trajectories of the bullets that hit the Tamaraw jeepney.84 This intent was supposedly realized
when after the volley of gunfire, both Flores and Licup were wounded and the latter died as a supervening
consequence.85 It refutes the invocation of lawful performance of duty, mainly because there was no
factual basis to support the belief of the accused that the occupants were members of the NPA, as indeed
they have not shown that they had previously verified the whereabouts of the suspect vehicle. But while it
recognizes that the accused had merely responded to the call of duty when summoned by Pamintuan
through David, it is convinced that they had exceeded the performance thereof when they fired upon the
Tamaraw jeepney occupied, as it turned out, by innocent individuals instead.86
_______________
82 Id., at pp. 104-106.
83 Id., at pp. 223-225.
84 Id., at pp. 226-227.
85 Id., at pp. 227-228.
86 Id., at pp. 228-230.
448
448
As to the contention of Mario Reyes, Andres Reyes and Manguerra that the evidence adduced before the
Sandiganbayan as well the findings based thereon should not be binding on them, the OSP explains that
said petitioners, together with Pamintuan, David, Lugtu, Lacson and Yu, had previously withdrawn their
motion for separate trial and as directed later on submitted the case for decision as to them with the filing
of their memorandum. It asserts there was no denial of due process to said petitioners in view of their
agreement for the reproduction of the evidence on the motion for bail at the trial proper as well as by their
manifestation to forego with the presentation of their own evidence. The right to present witnesses is
waivable. Also, where an accused is jointly tried and testifies in court, the testimony binds the other
accused, especially where the latter has failed to register his objection thereto.87
The decision on review apparently is laden with conclusions and inferences that seem to rest on loose
predicates. Yet we have pored over the records of the case and found that evidence nonetheless exists to
support the penultimate finding of guilt beyond reasonable doubt.
I.
It is as much undisputed as it is borne by the records that petitioners were at the situs of the incident on
the date and time alleged in the Informations. Yapyuco, in his testimonywhich was adopted by Cunanan
and Punoas well as Manguerra, Mario Reyes and Andres Reyes in their affidavits which had been offered
in evidence by the prosecution,88 explained that their presence at the scene was in response to the
information relayed by Pamintuan through David that armed rebel elements on board a vehicle described
to be that occupied by the victims were reportedly spotted in Barangay
_______________
87 Rollo (G.R. No. 122677), pp. 230-232.

88 See note 50 and Exhibits A, B, C, N and O.
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449
Quebiawan. It is on the basis of this suspicion that petitioners now appeal to justification under Article 11
(5) of the Revised Penal Code and under the concept of mistake of fact. Petitioners admit that it was not by
accident or mistake but by deliberation that the shooting transpired when it became apparent that the
suspect vehicle was attempting to flee, yet contention arises as to whether or not there was intention to
harm or even kill the passengers aboard, and who among them had discharged the bullets that caused the
eventual death of Licup and injured Villanueva.
The first duty of the prosecution is not to present the crime but to identify the criminal.89 To this end, the
prosecution in these cases offered in evidence the joint counter-affidavit90 of Andres Reyes and
Manguerra; the counter-affidavit91 of Mario Reyes; the joint counter-affidavit92 of Cunanan and Puno; the
counter-affidavit93 of Yapyuco; and the joint counter-affidavit94 of Yapyuco, Cunanan and Puno executed
immediately after the incident in question. In brief, Cunanan and Puno stated therein that [their] team
was forced to fire at the said vehicle when it accelerated after warning shots were fired in air and when it
ignored Yapyucos signal for it to stop;95 in their earlier affidavit they, together with Yapyuco, declared
that they were constrained x x x to fire directly to (sic) the said fleeing vehicle.96 Yapyucos open court
declaration, which was adopted by Cunanan and Puno, is that he twice discharged his firearm: first, to give
warning to the subject jeepney after
_______________
89 People v. Esmale, G.R. Nos. 102981-82, April 21, 1995, 243 SCRA 578, 592.
90 Co-executed by deceased Pabalan, dated September 28, 1988, Exhibit N.
91 Dated September 28, 1988, Exhibit C.
92 Dated July 20, 1988, Exhibit A.
93 Dated July 20, 1988, Exhibit B.
94 Dated April 5, 1988, Exhibit O.
95 Exhibits A-1, O, B and B-1.
96 Exhibit O.
450
450
it allegedly failed to stop when flagged down and second, at the tires thereof when it came clear that it
was trying to escape.97 He suggestedsubstantiating the implication in his affidavit that it was the whole
team [which fired] at the fleeing vehicle98that the bullets which hit the passenger side of the ill-fated
jeepney could have come only from the CHDFs posted inside the yard of Naron where Manguerra, Mario
Reyes and Andres Reyes admitted having taken post while awaiting the arrival of the suspect vehicle.99
Mario Reyes and Andres Reyes, relying on their affidavits, declared that it was only Manguerra from their
group who discharged a firearm but only into the air to give warning shots,100 and that it was the
policemen [who] directly fired upon the jeepney.101 Manguerra himself shared this statement.102 Yet
these accounts do not sit well with the physical evidence found in the bullet holes on the passenger door
of the jeepney which Dabor, in both her report and testimony, described to have come from bullets
sprayed from perpendicular and oblique directions. This evidence in fact supports Yapyucos claim that he,
Cunanan and Puno did fire directly at the jeepney after it had made a right turn and had already moved
past them such that the line of fire to the passengers thereof would be at an oblique angle from behind. It
also bolsters his claim that, almost simultaneously, gunshots came bursting after the jeepney has passed
the spot where he, Cunanan and Puno had taken post, and when the vehicle was already right in front of
the yard of Narons house sitting on the right side of the road after the curve and where Man_______________
97 See notes 38 and 39.
98 Exhibit B-1.
99 See notes 38 and 39. See also Exhibits B and C.
100 Exhibit C.
101 Exhibit N.
102 Id.
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451
guerra, Mario Reyes and Andres Reyes were positioned, such that the line of fire would be direct and
perpendicular to it.103
While Dabors ballistics findings are open to challenge for being inconclusive as to who among the accused
actually discharged their firearms that night, her report pertaining to the examination of the ill-fated
Tamaraw jeepney affirms the irreducible fact that the CHDFs posted within the yard of Narons house had
indeed sprayed bullets at the said vehicle. Manguerra, Mario Reyes and Andres Reyes seek to insulate
themselves by arguing that such finding cannot be applied to them as it is evidence adduced in a separate
trial. But as the OSP noted, they may not evade the effect of their having withdrawn their motion for
separate trial, their agreement to a joint trial of the cases, and the binding effect on them of the testimony
of their co-accused, Yapyuco.104
Indeed, the extrajudicial confession or admission of one accused is admissible only against said accused,
but is inadmissible against the other accused. But if the declarant or admitter repeats in court his
extrajudicial admission, as Yapyuco did in this case, during the trial and the other accused is accorded the
opportunity to cross-examine the admitter, the admission is admissible against both accused because then,
it is transposed into a judicial admission.105 It is thus perplexing why, despite the extrajudicial statements
of Cunanan, Puno and Yapyuco, as well as the latters testimony implicating them in the incident, they still
had chosen to waive their right to present evidence when, in fact, they could have shown detailed proof of
their participation or non-participation in the offenses charged. We, therefore, reject their claim that they
_______________
103 See notes 30, 38 and 39. Refer also to the sketch of Yapyuco and Flores depicting the relative location
of the Tamaraw jeepney at the scene of the incident.
104 Rollo (G.R. No. 122677), pp. 230-232.
105 People v. Panida, G.R. Nos. 127125 and 138952, July 6, 1999, 310 SCRA 66; People v. Buntag, 471 Phil.
82, 95; 427 SCRA 180, 190 (2004).
452
452
had been denied due process in this regard, as they opted not to testify and be cross-examined by the
prosecution as to the truthfulness in their affidavits and, accordingly, disprove the inculpatory admissions
of their co-accused.
II.
The availability of the justifying circumstance of fulfillment of duty or lawful exercise of a right or office
under Article 11 (5) of the Revised Penal Code rests on proof that (a) the accused acted in the performance
of his duty or in the lawful exercise of his right or office, and (b) the injury caused or the offense committed
is the necessary consequence of the due performance of such duty or the lawful exercise of such right or
office.106 The justification is based on the complete absence of intent and negligence on the part of the
accused, inasmuch as guilt of a felony connotes that it was committed with criminal intent or with fault or
negligence.107 Where invoked, this ground for non-liability amounts to an acknowledgment that the
accused has caused the injury or has committed the offense charged for which, however, he may not be
penalized because the resulting injury or offense is a necessary consequence of the due performance of his
duty or the lawful exercise of his right or office. Thus, it must be shown that the acts of the accused relative
to the crime charged were indeed lawfully or duly performed; the burden necessarily shifts on him to
prove such hypothesis.
_______________
106 See People v. Oanis, 74 Phil. 257, 262-263 (1943); People v. Pajenado, G.R. No. L-26458, January 30,
1976, 69 SCRA 172, 177; Baxinela v. People, 520 Phil. 202, 214-215; 485 SCRA 331, 343 (2006); People v.
Belbes, 389 Phil. 500, 508-509; 334 SCRA 161, 169 (2000); People v. Ulep, G.R. No. 132547, September 20,
2000, 340 SCRA 688, 699; Cabanlig v. Sandiganbayan, G.R. No. 148431, July 28, 2005, 464 SCRA 324, 333.
107 People v. Fallorina, G.R. No. 137347, March 4, 2004, 424 SCRA 655, 665, applying Article 3 of the
Revised Penal Code.
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453
We find that the requisites for justification under Article 11 (5) of the Revised Penal Code do not obtain in
this case.
The undisputed presence of all the accused at the situs of the incident is a legitimate law enforcement
operation. No objection is strong enough to defeat the claim that all of themwho were either police and
barangay officers or CHDF members tasked with the maintenance of peace and orderwere bound to, as
they did, respond to information of a suspected rebel infiltration in the locality. Theirs, therefore, is the
specific duty to identify the occupants of their suspect vehicle and search for firearms inside it to validate
the information they had received; they may even effect a bloodless arrest should they find cause to
believe that their suspects had just committed, were committing or were bound to commit a crime. While,
it may certainly be argued that rebellion is a continuing offense, it is interesting that nothing in the
evidence suggests that the accused were acting under an official order to open fire at or kill the suspects
under any and all circumstances. Even more telling is the absence of reference to the victims having
launched such aggression as would threaten the safety of any one of the accused, or having exhibited such
defiance of authority that would have instigated the accused, particularly those armed, to embark on a
violent attack with their firearms in self-defense. In fact, no material evidence was presented at the trial to
show that the accused were placed in real mortal danger in the presence of the victims, except maybe
their bare suspicion that the suspects were armed and were probably prepared to conduct hostilities.
But whether or not the passengers of the subject jeepney were NPA members and whether or not they
were at the time armed, are immaterial in the present inquiry inasmuch as they do not stand as accused in
the prosecution at hand. Besides, even assuming that they were as the accused believed them to be, the
actuations of these responding law enforcers must inevitably be ranged against reasonable expectations
454
454
that arise in the legitimate course of performance of policing duties. The rules of engagement, of which
every law enforcer must be thoroughly knowledgeable and for which he must always exercise the highest
caution, do not require that he should immediately draw or fire his weapon if the person to be accosted
does not heed his call. Pursuit without danger should be his next move, and not vengeance for personal
feelings or a damaged pride. Police work requires nothing more than the lawful apprehension of suspects,
since the completion of the process pertains to other government officers or agencies.108
A law enforcer in the performance of duty is justified in using such force as is reasonably necessary to
secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes,
and protect himself from bodily harm.109 United States v. Campo110 has laid down the rule that in the
performance of his duty, an agent of the authorities is not authorized to use force, except in an extreme
case when he is attacked or is the subject of resistance, and finds no other means to comply with his duty
or cause himself to be respected and obeyed by the offender. In case injury or death results from the
exercise of such force, the same could be justified in inflicting the injury or causing the death of the
offender if the officer had used necessary force.111 He is, however, never justified in using unnecessary
force or in treating the offender with wanton violence, or in resorting to dangerous means when the arrest
could be effected otherwise.112 People v. Ulep113 teaches that
_______________
108 People v. Tan, G.R. Nos. 116200-02, June 21, 2001, 359 SCRA 283, 297-298.
109 People v. Oanis, supra note 106, at p. 262.
110 10 Phil. 97, 99-100 (1908).
111 United States v. Mojica, 42 Phil. 784, 787 (1922).
113 Supra note 106.
455
VOL. 674, JUNE 25, 2012
455
The right to kill an offender is not absolute, and may be used only as a last resort, and under
circumstances indicating that the offender cannot otherwise be taken without bloodshed. The law does
not clothe police officers with authority to arbitrarily judge the necessity to kill. It may be true that police
officers sometimes find themselves in a dilemma when pressured by a situation where an immediate and
decisive, but legal, action is needed. However, it must be stressed that the judgment and discretion of
police officers in the performance of their duties must be exercised neither capriciously nor oppressively,
but within reasonable limits. In the absence of a clear and legal provision to the contrary, they must act in
conformity with the dictates of a sound discretion, and within the spirit and purpose of the law. We cannot
countenance trigger-happy law enforcement officers who indiscriminately employ force and violence upon
the persons they are apprehending. They must always bear in mind that although they are dealing with
criminal elements against whom society must be protected, these criminals are also human beings with
human rights.114
Thus, in People v. Tabag,115 where members of the Davao CHDF had killed four members of a family in
their home because of suspicions that they were NPA members, and the accused sought exoneration by
invoking among others the justifying circumstance in Article 11 (5) of the Revised Penal Code, the Court in
dismissing the claim and holding them liable for murder said, thus:
In no way can Sarenas claim the privileges under paragraphs 5 and 6, Article 11 of the Revised Penal Code,
for the massacre of the Magdasals can by no means be considered as done in the fulfillment of a duty or in
the lawful exercise of an office or in obedience to an order issued by a superior for some lawful purpose.
Other than suspicion, there is no evidence that Welbino Magdasal, Sr., his wife Wendelyn, and their
children were members of the NPA. And even if they were members of the NPA, they were entitled to due
process of law. On that fateful night, they were peacefully resting in their humble home expecting for the
dawn of
_______________
114 People v. Ulep, supra note 106, at p. 700.
115 335 Phil. 579; 268 SCRA 115 (1997).
456
456
another uncertain day. Clearly, therefore, nothing justified the sudden and unprovoked attack, at
nighttime, on the Magdasals. The massacre was nothing but a merciless vigilante-style execution.116
Petitioners rationalize their election to aim their fire directly at the jeepney by claiming that it failed to
heed the first round of warning shots as well as the signal for it to stop and instead tried to flee. While it is
possible that the jeepney had been flagged down but because it was pacing the dark road with its
headlights dimmed missed petitioners signal to stop, and compound to it the admitted fact that the
passengers thereof were drunk from the party they had just been to,117 still, we find incomprehensible
petitioners quick resolve to use their firearms when in fact there was at least one other vehicle at the
scenethe Sarao jeepney owned by Yapyucowhich they could actually have used to pursue their
suspects whom they supposedly perceived to be in flight.
Lawlessness is to be dealt with according to the law. Only absolute necessity justifies the use of force, and
it is incumbent on herein petitioners to prove such necessity. We find, however, that petitioners failed in
that respect. Although the employment of powerful firearms does not necessarily connote unnecessary
force, petitioners in this case do not seem to have been confronted with the rational necessity to open fire
at the moving jeepney occupied by the victims. No explanation is offered why they, in that instant, were
inclined for a violent attack at their suspects except perhaps their over-anxiety or impatience or simply
their careless disposition to take no chances. Clearly, they exceeded the fulfillment of police duties the
moment they actualized such resolve, thereby inflicting Licup with a mortal bullet wound, causing injury to
Villanueva and exposing the rest of the passengers of the jeepney to grave danger to life and limball of
which could
_______________
116 Id., at p. 597; pp. 130-131. (Emphasis has been supplied.)
117 See note 17.
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not have been the necessary consequence of the fulfillment of their duties.
III.
At this juncture, we find that the invocation of the concept of mistake of fact faces certain failure. In the
context of criminal law, a mistake of fact is a misapprehension of a fact which, if true, would have
justified the act or omission which is the subject of the prosecution.118 Generally, a reasonable mistake of
fact is a defense to a charge of crime where it negates the intent component of the crime.119 It may be a
defense even if the offense charged requires proof of only general intent.120 The inquiry is into the
mistaken belief of the defendant,121 and it does not look at all to the belief or state of mind of any other
person.122 A proper invocation of this defense requires (a) that the mistake be honest and reasonable;123
(b) that it be a matter of fact;124 and (c) that it negate the culpa_______________
118 21 Am Jur 2d, 152, p. 232, citing Turner v. State, 210 Ga. App. 303, 436 S.E.2d 229.
119 Id., citing U.S. v. Vasarajs, 908 F.2d 443 and People v. Nash, 282 Ill. App. 3d 982, 218 Ill. Dec. 410, 669
N.E.2d 353.
120 Id., citing Com. V. Simcock, 31 Mass. App. Ct. 184, 575 N.E.2d 1137.
121 Id., citing Johnson v. State, 734 S.W.2d 199.
122 Id.
123 Id., at p. 233, citing U.S. v. Buchannan, 115 F.3d 445; People v. Reed, 53 Cal. App. 4th 389. Generally,
ignorance or mistake of fact constitutes a defense to a criminal charge only if it is not superinduced by fault
or negligence of party doing the charged act. (Crawford v. State, 267 Ga. 543, 480 S.E.2d 573). For a
mistake of fact to negate a mental state required to establish a criminal offense, the mistake must be
reasonable, and the act, to be justified, must be taken under a bona fide mistaken belief (Cheser v. Com.,
904 S.W.2d 239).
124 Id., at p. 233, citing Potter v. State, 684 N.E.2d 1127. If a mistake arises not from ignorance of law, but
from ignorance of an independently determined legal status or condition that is one of the
458
458
bility required to commit the crime125 or the existence of the mental state which the statute prescribes
with respect to an element of the offense.126
The leading authority in mistake of fact as ground for non-liability is found in United States v. Ah Chong,127
but in that setting, the principle was treated as a function of self-defense where the physical circumstances
of the case had mentally manifested to the accused an aggression which it was his instinct to repel. There,
the accused, fearful of bad elements, was woken by the sound of his bedroom door being broken open
and, receiving no response from the intruder after having demanded identification, believed that a robber
had broken in. He threatened to kill the intruder but at that moment he was struck by a chair which he had
placed against the door and, perceiving that he was under attack, seized a knife and fatally stabbed the
intruder who turned out to be his roommate. Charged with homicide, he was acquitted because of his
honest mistake of fact. Finding that the accused had no evil intent to commit the charge, the Court
explained:
x x x The maxim here is Ignorantia facti excusat (Ignorance or mistake in point of fact is, in all cases of
supposed offense, a sufficient excuse).
Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the
act committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from
criminal liability, provided always there is no fault or negligence on his part and as laid down by Baron
Parke, The guilt of the accused must depend on the circumstances as they appear to him. x x x
_______________
operative facts of a crime, such a mistake is one of fact (U.S. v. Lopez-Lima, 738 F.Supp. 1404).
125 Id., at p. 233, citing Potter v. State, 684 N.E.2d 1127; Miller v. State, 815S.W.2d 582.
126 Id., at p. 233, citing Jones v. State, 263 Ga. 835, 439 S.E.2d 645.
127 15 Phil. 488 (1910).

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If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts
which will justify a killingor, in terms more nicely in accord with the principles on which the rule is
founded, if without fault or carelessness he does not believe themhe is legally guiltless of homicide;
though he mistook the facts, and so the life of an innocent person is unfortunately extinguished. In other
words, and with reference to the right of self-defense and the not quite harmonious authorities, it is the
doctrine of reason, and sufficiently sustained in adjudication, that notwithstanding some decisions
apparently adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as they
appear to him. If, without fault or carelessness, he is misled concerning them, and defends himself
correctly according to what he thus supposes the facts to be, the law will not punish him though they are
in truth otherwise, and he has really no occasion for the extreme measure. x x x128
Besides, as held in People v. Oanis129 and Baxinela v. People,130 the justification of an act, which is
otherwise criminal on the basis of a mistake of fact, must preclude negligence or bad faith on the part of
the accused.131 Thus, Ah Chong further explained that
The question then squarely presents itself, whether in this jurisdiction one can be held criminally
responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt from
criminal liability if the facts were as he supposed them to be, but which would constitute the crime of
homicide or assassination if the actor had known the true state of the facts at the time when he committed
the act. To this question we think there can be but one answer, and we hold that under such circumstances
there is no criminal liability, provided always that the alleged ignorance or mistake of fact was not due to
negligence or bad faith.132
_______________
128 Id., at pp. 500-501. (Emphasis supplied)
129 Supra note 106.
130 Supra note 106.
131 People v. Oanis, supra note 106, at p. 264; Baxinela v. People, supra note 106, at p. 215; p. 344.
132 United States v. Ah Chong, supra note 127, at p. 493.
460
460

IV.
This brings us to whether the guilt of petitioners for homicide and frustrated homicide has been
established beyond cavil of doubt. The precept in all criminal cases is that the prosecution is bound by the
invariable requisite of establishing the guilt of the accused beyond reasonable doubt. The prosecution
must rely on the strength of its own evidence and not on the evidence of the accused. The weakness of the
defense of the accused does not relieve the prosecution of its responsibility of proving guilt beyond
reasonable doubt.133 By reasonable doubt is meant that doubt engendered by an investigation of the
whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of
guilt.134 The overriding consideration is not whether the court doubts the innocence of the accused, but
whether it entertains reasonable doubt as to his guilt.135
The prosecution is burdened to prove corpus delicti beyond reasonable doubt either by direct evidence or
by circumstantial or presumptive evidence.136 Corpus delicti consists of two things: first, the criminal act
and second, defendant's agency in the commission of the act.137 In homicide (by dolo) as well as in
murder cases, the prosecution must prove: (a) the death of the party alleged to be dead; (b) that the death
was produced by the criminal act of some other than the deceased and was
_______________
133 People v. Crispin, G.R. No. 128360, March 2, 2000, 327 SCRA 167, 179; People v. Calica, G.R. No.
139178, April 14, 2004, 427 SCRA 336, 362.
134 People v. Dramayo, G.R. No. L-21325, October 29, 1971,
42 SCRA 59, 64; People v. Calica, supra, at p. 347.
135 People v. Gamer, G.R. No. 115984, February 29, 2000, 326 SCRA 660, 674.
136 People v. Delim, G.R. No. 142773, January 28, 2003, 396 SCRA 386, 400, citing People v. Fulinara, G.R.
No. 88326, August 3, 1995, 247 SCRA 28.
137 Gay v. State, 60 Southwestern Reporter, 771 (1901).
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VOL. 674, JUNE 25, 2012

461
not the result of accident, natural cause or suicide; and (c) that defendant committed the criminal act or
was in some way criminally responsible for the act which produced the death. In other words, proof of
homicide or murder requires incontrovertible evidence, direct or circumstantial, that the victim was
deliberately killed (with malice), that is, with intent to kill. Such evidence may consist in the use of weapons
by the malefactors, the nature, location and number of wounds sustained by the victim and the words
uttered by the malefactors before, at the time or immediately after the killing of the victim. If the victim
dies because of a deliberate act of the malefactors, intent to kill is conclusively presumed.138 In such case,
even if there is no intent to kill, the crime is homicide because with respect to crimes of personal violence,
the penal law looks particularly to the material results following the unlawful act and holds the aggressor
responsible for all the consequences thereof.139 Evidence of intent to kill is crucial only to a finding of
frustrated and attempted homicide, as the same is an essential element of these offenses, and thus must
be proved with the same degree of certainty as that required of the other elements of said offenses.140
The records disclose no ill motives attributed to petitioners by the prosecution. It is interesting that, in
negating the allegation that they had by their acts intended to kill the occupants of the jeepney, petitioners
turn to their co-accused Pamintuan, whose picture depicted in the defense evidence is certainly an ugly
one: petitioners affidavits as well as Yapyucos testimony are replete with suggestions that it was
Pamintuan alone who harbored the motive to ambush the suspects as it was he who their (petitioners)
minds that which they later on conceded to be a mistaken belief as to the
_______________
138 People v. Delim, supra note 136, at p. 400.
139 United States v. Gloria, 3 Phil. 333 (1904).
140 Mondragon v. People, G.R. No. L-17666, June 30, 1966, 17 SCRA 476, 480-481; See also Reyes, Luis B.,
Revised Penal Code, Book II, 15th ed. (2001), p. 470.
462
462
identity of the suspects. Cinco, for one, stated in court that Pamintuan had once reported to him that
Flores, a relative of his (Pamintuan), was frequently meeting with NPA members and that the San Miguel
Corporation plant where the victims were employed was being penetrated by NPA members. He also
affirmed Yapyucos claim that there had been a number of ambuscades launched against members of law
enforcement in Quebiawan and in the neighboring areas supposedly by NPA members at around the time
of the incident. But as the Sandiganbayan pointed out, it is unfortunate that Pamintuan had died during
the pendency of these cases even before his opportunity to testify in court emerged.141
Yet whether such claims suffice to demonstrate ill motives evades relevance and materiality. Motive is
generally held to be immaterial inasmuch as it is not an element of a crime. It gains significance when the
commission of a crime is established by evidence purely circumstantial or otherwise inconclusive.142 The
question of motive is important in cases where there is doubt as to whether the defendant is or is not the
person who committed the act, but when there is no doubt that the defendant was the one who caused
the death of the deceased, it is not so important to know the reason for the deed.143
In the instant case, petitioners, without abandoning their claim that they did not intend to kill anyone of
the victims, admit having willfully discharged their service firearms; and the manner by which the bullets
concentrated on the passenger side of the jeepney permits no other conclusion than that the shots were
intended for the persons lying along the line of fire. We do not doubt that instances abound where the
discharge of a firearm at another is not in itself sufficient to
_______________
141 Rollo (G.R. Nos. 120744-46), pp. 67-68.
142 See Crisostomo v. Sandiganbayan, 495 Phil. 718, 745;
456 SCRA 45, 77 (2005), citing People v. Flores, 389 Phil. 532;
328 SCRA 461 (2000).
143 People v. Ramirez, 104 Phil. 720, 726 (1958).
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463
sustain a finding of intention to kill, and that there are instances where the attendant circumstances
conclusively establish that the discharge was not in fact animated by intent to kill. Yet the rule is that in
ascertaining the intention with which a specific act is committed, it is always proper and necessary to look
not merely to the act itself but to all the attendant circumstances so far as they develop in the
evidence.144
The firearms used by petitioners were either M16 rifle, .30 caliber garand rifle and .30 caliber carbine.145
While the use of these weapons does not always amount to unnecessary force, they are nevertheless
inherently lethal in nature. At the level the bullets were fired and hit the jeepney, it is not difficult to
imagine the possibility of the passengers thereof being hit and even killed. It must be stressed that the
subject jeepney was fired upon while it was pacing the road and at that moment, it is not as much too
difficult to aim and target the tires thereof as it is to imagine the peril to which its passengers would be
exposed even assuming that the gunfire was aimed at the tiresespecially considering that petitioners do
not appear to be mere rookie law enforcers or unskilled neophytes in encounters with lawless elements in
the streets.
Thus, judging by the location of the bullet holes on the subject jeepney and the firearms employed, the
likelihood of the passenger next to the driverand in fact even the driver himselfof being hit and injured
or even killed is great to say the least, certain to be precise. This, we find to be consistent with the uniform
claim of petitioners that the impulse to fire directly at the jeepney came when it occurred to them that it
was proceeding to evade their authority. And in instances like this, their natural and logical impulse was to
debilitate the vehicle by firing upon the tires thereof, or to debilitate the driver and hence put the vehicle
to a halt. The evidence we
_______________
144 United States v. Montenegro, 15 Phil. 1, 6 (1910).
145 Exhibits U, U-0, U-1, U-2, W, W-1 and W-2.
464
464
found on the jeepney suggests that petitioners actuations leaned towards the latter.
This demonstrates the clear intent of petitioners to bring forth death on Licup who was seated on the
passenger side and to Villanueva who was occupying the wheel, together with all the consequences arising
from their deed. The circumstances of the shooting breed no other inference than that the firing was
deliberate and not attributable to sheer accident or mere lack of skill. Thus, Cupps v. State146 tells that:
This rule that every person is presumed to contemplate the ordinary and natural consequences of his own
acts, is applied even in capital cases. Because men generally act deliberately and by the determination of
their own will, and not from the impulse of blind passion, the law presumes that every man always thus
acts, until the contrary appears. Therefore, when one man is found to have killed another, if the
circumstances of the homicide do not of themselves show that it was not intended, but was accidental, it is
presumed that the death of the deceased was designed by the slayer; and the burden of proof is on him to
show that it was otherwise.
V.
Verily, the shooting incident subject of these petitions was actualized with the deliberate intent of killing
Licup and Villanueva, hence we dismiss Yapyucos alternative claim in G.R. No. 120744 that he and his copetitioners must be found guilty merely of reckless imprudence resulting in homicide and frustrated
homicide. Here is why:
First, the crimes committed in these cases are not merely criminal negligence, the killing being intentional
and not accidental. In criminal negligence, the injury caused to another should be unintentional, it being
the incident of another
_______________
146 97 Northwestern Reporter, 210 (1903). (Emphasis supplied.)
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VOL. 674, JUNE 25, 2012
465
act performed without malice.147 People v. Guillen148 and People v. Nanquil,149 declare that a deliberate
intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence. And in People
v. Castillo,150 we held that that there can be no frustrated homicide through reckless negligence inasmuch
as reckless negligence implies lack of intent to kill, and without intent to kill the crime of frustrated
homicide cannot exist.
Second, that petitioners by their acts exhibited conspiracy, as correctly found by the Sandiganbayan,
likewise militates against their claim of reckless imprudence.
Article 8 of the Revised Penal Code provides that there is conspiracy when two or more persons agree to
commit a felony and decide to commit it. Conspiracy need not be proven by direct evidence. It may be
inferred from the conduct of the accused before, during and after the commission of the crime, showing
that they had acted with a common purpose and design. Conspiracy may be implied if it is proved that two
or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing
a part so that their combined acts, though apparently independent of each other were, in fact, connected
and cooperative, indicating a closeness of personal association and a concurrence of sentiment. Conspiracy
once found, continues until the object of it has been accomplished and unless abandoned or broken up. To
hold an accused guilty as a co-principal by reason of conspiracy, he must be shown to have performed an
overt act in pursuance or furtherance of the complicity. There must be intentional participation in the
transaction with a view to the furtherance of the common design and purpose.151
_______________
148 47 O.G. 3433, 3440.
149 43 Phil. 232 (1922).
150 42 O.G. 1914, 1921.
151 People v. Bisda, G.R. No. 140895, July 17, 2003, 406 SCRA 454, 473.
466
466
Conspiracy to exist does not require an agreement for an appreciable period prior to the occurrence. From
the legal viewpoint, conspiracy exists if, at the time of the commission of the offense, the accused had the
same purpose and were united in its execution.152 The instant case requires no proof of any previous
agreement among petitioners that they were really bent on a violent attack upon their suspects. While it is
far-fetched to conclude that conspiracy arose from the moment petitioners, or all of the accused for that
matter, had converged and strategically posted themselves at the place appointed by Pamintuan, we
nevertheless find that petitioners had been ignited by the common impulse not to let their suspect jeepney
flee and evade their authority when it suddenly occurred to them that the vehicle was attempting to
escape as it supposedly accelerated despite the signal for it to stop and submit to them. As aforesaid, at
that point, petitioners were confronted with the convenient yet irrational option to take no chances by
preventing the jeepneys supposed escape even if it meant killing the driver thereof. It appears that such
was their common purpose. And by their concerted action of almost simultaneously opening fire at the
jeepney from the posts they had deliberately taken around the immediate environment of the suspects,
conveniently affording an opportunity to target the driver, they did achieve their object as shown by the
concentration of bullet entries on the passenger side of the jeepney at angular and perpendicular
trajectories. Indeed, there is no definitive proof that tells which of all the accused had discharged their
weapons that night and which directly caused the injuries sustained by Villanueva and fatally wounded
Licup, yet we adopt the Sandiganbayans
_______________
152 U.S. v. Ancheta, 1 Phil. 165 (1901-1903); U.S. v. Santos, 2 Phil. 453, 456 (1903); People v. Mandagay
and Taquiawan, 46 Phil. 838, 840 (1923); People v. Agbuya, 57 Phil. 238, 242 (1932); People v. Ibaez, 77
Phil. 664 (1946); People v. Macabuhay, 46 O.G. 5469; People v. San Luis, 86 Phil. 485, 497 (1950); People v.
Dima Binasing, 98 Phil. 902, 908 (1956).
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VOL. 674, JUNE 25, 2012

467
conclusion that since only herein petitioners were shown to have been in possession of their service
firearms that night and had fired the same, they should be held collectively responsible for the
consequences of the subject law enforcement operation which had gone terribly wrong.153
VI.
The Sandiganbayan correctly found that petitioners are guilty as co-principals in the crimes of homicide
and attempted homicide only, respectively for the death of Licup and for the non-fatal injuries sustained by
Villanueva, and that they deserve an acquittal together with the other accused, of the charge of attempted
murder with respect to the unharmed victims.154 The allegation of evident premeditation has not been
proved beyond reasonable doubt because the evidence is consistent with the fact that the urge to kill had
materialized in the minds of petitioners as instantaneously as they perceived their suspects to be
attempting flight and evading arrest. The same is true with treachery, inasmuch as there is no clear and
indubitable proof that the mode of attack was consciously and deliberately adopted by petitioners.
Homicide, under Article 249 of the Revised Penal Code, is punished by reclusion temporal whereas an
attempt thereof, under Article 250 in relation to Article 51, warrants a penalty lower by two degrees than
that prescribed for principals in a consummated homicide. Petitioners in these cases are entitled to the
ordinary mitigating circumstance of voluntary surrender, and there being no aggravating circumstance
proved and applying the Indeterminate Sentence Law, the Sandiganbayan has properly fixed in Criminal
Case No. 16612 the range
_______________
153 Rollo (G.R. Nos. 120744-46), p. 75, citing People v. Toling, G.R. No. L-27097, January 17, 1975, 62 SCRA
17 and People v. Tamani, G.R. Nos. L-22160 and L-22161, January 21, 1974, 55 SCRA 153.
154 Namely, Eduardo Flores, Raul Panlican, Alejandro De Vera and Restituto Calma.
468
468
of the penalty from six (6) years and one (1) day, but should have denominated the same as prision mayor,
not prision correccional, to twelve (12) years and one (1) day of reclusion temporal.
However, upon the finding that petitioners in Criminal Case No. 16614 had committed attempted
homicide, a modification of the penalty is in order. The penalty of attempted homicide is two (2) degrees
lower to that of a consummated homicide, which is prision correccional. Taking into account the mitigating
circumstance of voluntary surrender, the maximum of the indeterminate sentence to be meted out on
petitioners is within the minimum period of prision correccional, which is six (6) months and one (1) day to
two (2) years and four (4) months of prision correccional, whereas the minimum of the sentence, which
under the Indeterminate Sentence Law must be within the range of the penalty next lower to that
prescribed for the offense, which is one (1) month and one (1) day to six (6) months of arresto mayor.
We likewise modify the award of damages in these cases, in accordance with prevailing jurisprudence, and
order herein petitioners, jointly and severally, to indemnify the heirs of Leodevince Licup in the amount of
P77,000.00 as actual damages and P50,000.00 in moral damages. With respect to Noel Villanueva,
petitioners are likewise bound to pay, jointly and severally, the amount of P51,700.00 as actual and
compensatory damages and P20,000.00 as moral damages. The award of exemplary damages should be
deleted, there being no aggravating circumstance that attended the commission of the crimes.
WHEREFORE, the instant petitions are DENIED. The joint decision of the Sandiganbayan in Criminal Case
Nos. 16612, 16613 and 16614, dated June 27, 1995, are hereby AFFIRMED with the following
MODIFICATIONS:
(a) In Criminal Case No. 16612, petitioners are sentenced to suffer the indeterminate penalty of six (6)
years and one (1) day of prision mayor, as the minimum, to twelve (12) years
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VOL. 674, JUNE 25, 2012
469
and one (1) day of reclusion temporal, as the maximum; in Criminal Case No. 16614, the indeterminate
sentence is hereby modified to Two (2) years and four (4) months of prision correccional, as the maximum,
and Six (6) months of arresto mayor, as the minimum.
(b) Petitioners are DIRECTED to indemnify, jointly and severally, the heirs of Leodevince Licup in the
amount of P77,000.00 as actual damages, P50,000.00 in moral damages, as well as Noel Villanueva, in the
amount of P51,700.00 as actual and compensatory damages, and P20,000.00 as moral damages.
SO ORDERED.
Bersamin,*** Abad, Villarama, Jr.**** and Perlas-Bernabe, JJ., concur.
Petitions denied, joint decision affirmed with modifications.
Notes.An effective and vigilant counsel necessarily and logically requires that the lawyer be present and
able to advise and assist his client from the time the confessant answers the first question asked by the
investigating officer until the signing of the extrajudicial confession. (Lumanog vs. People, 630 SCRA 42
[2010])
While it is true that statements made by a conspirator against a co-conspirator are admissible only when
made during the existence of the conspiracy, if the declarant repeats the statement in court, his
extrajudicial confession becomes a judicial admission, making the testimony admissible as to both
conspirators. (People vs. Baharan, 639 SCRA 157 [2011])
o0o
_______________
*** Designated Acting Member in lieu of Associate Justice Jose Catral Mendoza, per Special Order No.
1241 dated June 14, 2012.
**** Designated Acting Member in lieu of Associate Justice Presbitero J. Velasco, Jr., per Special Order No.
1229 dated June 6, 2012.
7. People Apolinar
(Separate Document)
8. People vs Toring
38
People vs. Toring
G.R. No. 56358. October 26, 1990.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LUIS B. TORING, DIOSDADO BERDON and CARMELO B.
BERDIN, accused-appellants.
Evidence; Witnesses; Matters dealing with credibility of witnesses and appreciation of evidence are
primarily the lower courts province but the Supreme Court has the power to determine whether the lower
court has overlooked certain facts which may substantially affect the resolution of the case.While
matters dealing with the credibility of witnesses and appreciation of evidence are primarily the lower
courts province, this Court has the power to determine whether in the performance of its functions, the
lower court overlooked certain matters which may have a substantial effect in the resolution of a case.
Defense witness Joel Escobia was, besides Toring, the only witness whose sworn statement was taken by
the police on May 26, 1980, the day after the fatal assault on Samuel.
Criminal Law; Defense of Relative; Where the accused was motivated by revenge, resentment or evil
motive at the time of the assault, he cannot claim the full benefit of the justifying circumstance of defense
of relative.The presence of unlawful aggression on the part of the victim and the lack of proof of
provocation on the part of Toring notwithstanding, full credence cannot be given to Torings claim of
defense of a relative. Toring himself admitted in court as well as in his sworn statement that in 1979, he
was shot with a .22 caliber revolver by Edgar Augusto, Samuels brother. It cannot be said, therefore, that
in attacking Samuel, Toring was impelled by pure compassion or
_______________
* THIRD DIVISION.
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VOL. 191, OCTOBER 26, 1990

39
People vs. Toring
beneficence or the lawful desire to avenge the immediate wrong inflicted on his cousin. Rather, he was
motivated by revenge, resentment or evil motive because of a running feud between the Augusto and
the Toring brothers. As the defense itself claims, after the incident subject of the instant case occurred,
Torings brother, Arsenio, was shot on the leg by Edgar Augusto. Indeed, vendetta appears to have driven
both camps to commit unlawful acts against each other. Hence, under the circumstances, to justify Torings
act of assaulting Samuel Augusto would give free rein to lawlessness.
Same; Aggravating Circumstances; Nighttime; Nighttime cannot be considered as an aggravating

circumstance in the absence of proof that it was purposely sought to insure the commission of the crime.
The lower court correctly considered the killing as murder in view of the presence of the qualifying
circumstance of treachery. The suddenness of the assault rendered Samuel helpless even to use his
shotgun. We also agree with the lower court that conspiracy and evident premeditation were not proven
beyond reasonable doubt. Moreover, nighttime cannot be considered as an aggravating circumstance.
There is no proof that it was purposely sought to insure the commission of the crime or prevent its
discovery. However, Toring should be credited with the privileged mitigating circumstance of incomplete
defense of relative and the generic mitigating circumstance of voluntary surrender.
APPEAL from the decision of the Circuit Criminal Court of Cebu City.

The Solicitor General for plaintiff-appellee.
Fil C. Veloso counsel de oficio for Luis B. Toring.
Joel P. Alino for Berdon and Berdin.
FERNAN, C.J.:
The appellants herein seek the reversal of the October 28, 1980 decision of the Circuit Criminal Court in
Cebu City in Criminal Case No. CCC-XIV-2170 the dispositive portion of which reads:
WHEREFORE, the Court finds the accused Luis B. Toring guilty beyond reasonable doubt of the crime of
MURDER by direct participation as principal; Diosdado Berdon as accomplice thereto; and Carmelo Berdin
as accessory after the fact.
Appreciating in favor of the accused Luis B. Toring the mitigating
40
40
People vs. Toring
circumstance of voluntary surrender, the said circumstance having been offset by the aggravating
circumstance of nighttime, the accused Luis Toring should be, as he is, hereby sentenced to the penalty of
RECLUSION PERPETUA, with the accessory penalties of law.
There being neither mitigating nor aggravating circumstances on the part of the accused Diosdado Berdon,
the said accused should be as he is hereby sentenced to the indeterminate penalty of from SIX (6) YEARS of
Prision Correccional, as minimum, to TWELVE (12) YEARS and ONE (1) DAY of Reclusion Temporal, as
maximum, with the accessory penalties of the law.
Appreciating in favor of the accused Carmelo Berdin, the privileged mitigating circumstance of minority,
the said accused being only 17 years of age, the accused Carmelo Berdin should be, as he is, sentenced to
the penalty of SIX (6) MONTHS and ONE (1) DAY of Prision Correccional, with the accessory penalties of the
law.
The defendants shall jointly and solidarily indemnify the heirs of the deceased Samuel Augusto for actual
and compensatory damages in the sum of P15,000.00 and for moral damages in the sum of P50,000.00,
without subsidiary imprisonment in case of insolvency.
The instrument of the crime, the knife, Exhibit B, is confiscated in favor of the government.
Proportionate costs.
SO ORDERED.1
According to the prosecution, the antecedent facts are as follows:
In the evening of May 25, 1980, a benefit dance was held at sitio Naga, Babag II, Lapu-lapu City for the last
canvassing of votes for the candidates for princesses who would reign at the sitio fiesta. As one of the
candidates was the daughter of Samuel Augusto, he and the members of his family attended the affair.
Also present were members of the kwaknit gang, a group which was noted for their bird-like way of
dancing and their propensity for drunkenness and provoking trouble. Its president, called the alas king,
was Luis Toring. The group was then outside the dancing area which was ringed by benches.
At around 10:45 p.m., Samuels daughter was proclaimed the winner in the contest. Beer and softdrinks
having been served the parents of the candidates by the officers of the Naga Chapel
_______________
1 Rollo, pp. 24-25.

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People vs. Toring
Association which took charge of the affair, Samuel was tipsy when, after his daughters proclamation, he
stepped out of the dancing area to answer the call of nature.
At that moment, barangay tanod Felix Berdin saw Luis Toring, Carmelo Berdin and Diosdado Berdon
proceed to a dark area while whispering to each other. Diosdado Berdon handed a knife to Luis Toring,2
who then approached Samuel from behind, held Samuels left hand with his left hand, and with his right
hand, stabbed with the knife the right side of Samuels abdomen.3 Upon seeing Felix running towards
them, Luis Toring pulled out the knife and, together with Carmelo Berdin and Diosdado Berdon, ran
towards the dark. Felix tried to chase the three but he was not able to catch them. He returned to where
Samuel had slumped and helped others in taking Samuel to the hospital.
According to Maria Catalina Sorono, who was six (6) meters away from Samuel and Luis when the assault
occurred, Diosdado Berdon and Carmelo Berdin were poised to deliver fist blows on Samuel just before
Luis Toring stabbed him. Diosdado gave the knife to Luis Toring.4
As soon as she saw the stabbing of Samuel, Maria Catalina shouted for help. The three assailants ran
towards the direction of the fields. Jacinto Lobas and Mario Andog responded to her shouts and brought
Samuel to the Opon Emergency Hospital where he died on arrival. According to the necropsy report,5
Samuel, who was thirty years old, died due to massive hemorrhage secondary to the stab wound on the
abdomen. Said wound is described in the report as follows:
Stab wound, with herniation of omental tissues; elliptical, 3.5 cms. long, running vertically downward,
edges clean-cut, superior extremity rounded, inferior extremity sharp, located at the abdominal region,
right anterior aspect, 7.5 cms. to the right of anterior median line and 107.0 cms. above right heel, directed
backward, upward and medially, involving skin and the underlying soft tissues, penetrating right peritoneal
cavity, incising inferior vena cava, attaining an ap_______________
2 TSN, September 23, 1980, p. 30.

3 TSN, supra, pp. 37-38.
4 TSN, October 14, 1980, pp. 35-37.
5 Exhibit E.
42
42
People vs. Toring
proximate depth of 15.0 cms.
The death weapon, a kitchen knife made of stainless steel and with a red-colored handle, was recovered
from the house of Luis Toring. According to Patrolman Pantaleon P. Amodia, the police found out during
the investigation that Luis Toring had left the weapon with Camilo Berdin. When the police confronted
Berdin, the latter led them to the house of Toring which Berdin entered. When he emerged from the
house, Berdin handed the weapon to the police.6
An information for murder was filed against Toring. Subsequently, however, the information was amended
to include Diosdado Berdon and Carmelo Berdin as defendants. The three were charged therein with
conspiracy in killing Samuel Augusto in a treacherous manner. Berdon, it was alleged, conveniently
supplied the death weapon which Toring used in stabbing Samuel while Berdin allegedly concealed the
weapon to prevent its discovery by the police.7 The crime was purportedly committed with the attendance
of the generic aggravating circumstances of evident premeditation and nighttime.
All three accused pleaded not guilty to the offense charged. At the trial, Luis Toring, alias Lowe, testified
that he was not the president of the Kwaknit gang. He went to the benefit dance in the company of Venir
Ybanez, Joel Escobia, Ely Amion, Abel Pongase, Abe Berdon, Genio Berdin and Alex Augusto. Toring and his
group were standing outside the dancing area when, at around eleven oclock in the evening, Samuel, a
known tough guy (maldito), approached them and held Venir Ybanez by his collar. Then Samuel thrust
the butt of his shotgun on the chin of Joel Escobia,8 proceeded to another group who were also gangmates
of Toring, and again, with the barrel of his shotgun, hit Eli Amions chest several times.9
Reacting to what he saw, Toring got his kitchen knife which was tucked in his waist, approached Samuel
from the latters right side and stabbed him once as he did not intend to kill
_______________
6 TSN, October 15, 1980, pp. 23-24.

7 Rollo, pp. 8-9.
8 TSN, October 22, 1980, pp. 23-24.
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People vs. Toring
Samuel. Toring then ran towards the dark portion of the area and went home. There, he left the knife and
proceeded to the hut by the fishpond of one Roman.10
Toring was sleeping in the hut with his older brother, Arsenio, when, at around 4:00 oclock in the morning
of May 26, 1980, Edgar Augusto, the younger brother of Samuel, shot them. Arsenio was hit on the left leg
and he stayed two months in the hospital for the treatment of his wound.11
At 2:00 oclock in the afternoon of May 26, 1980, Toring surrendered to two Philippine Constabulary
soldiers.12 They brought him to the police of Lapu-lapu City on May 28, 1980.13 When the police asked
him about the knife he used in stabbing Samuel, Toring told them to go to Carmelo Berdin because he was
the only person who knew where Toring hid it.14 Asserting that he was the one who returned the knife to
his own house, Toring testified that Carmelo Berdin used to see him hide his weapons upstairs because
Berdin was a frequent visitor of his.15
For his part, Carmelo, a 5-feet tall, asthmatic 17-year-old whom the court described as lilliputian,
admitted that he witnessed the stabbing incident but he ran away with his group immediately after
because he was afraid he might be shot by Samuel. He was with Toring when the latter hid the still
bloodied knife under a trunk in Torings house. He was familiar with the hiding place of the knife because
Toring showed it to him and there were times when he would get the knife there upon Torings request.
Carmelo corroborated Torings testimony that on that fateful night, Toring carried the knife tucked at the
back of his waistline.16
In court, Toring testified that he never saw Diosdado at the dance.17 However, in his sworn statement
dated May 28, 1980 and marked as Exhibit D, Toring stated that he took the knife
_______________

13 TSN, October 13, 1980, p. 7.
14 TSN, October 22, 1980, pp. 42-43.
16 TSN, October 24, 1980, pp. 19-20; 24-25.
17 TSN, October 22, 1980, p. 93.
44
44
People vs. Toring
from Diosdado to stab Samuel. Confronted with said statement, Diosdado said that when he asked Toring
why he implicated him, Toring allegedly replied that he included Diosdado because of the case the
barangay brigade had filed against Toring.18
According to Diosdado, he did not attend the May 25 dance because of the trouble which erupted during
the dance the night before. He did not have anything to do with the stabbing of Samuel. He admitted,
however, that a week after the incident, his family went to barrio Andaliw, Ronda, Cebu, for their yearly
visit to his father-in-law. He stayed there for fifteen days and would have stayed longer had not his mother
informed him of the subpoena addressed to him.19
On October 28, 1980, a day after the last day of hearing, the lower court20 rendered a decision discrediting
Torings claim that the killing of Samuel was justified because it was done in defense of a stranger pursuant
to Article 11 (3) of the Revised Penal Code. The lower court found that Toring was the aggressor acting in
retaliation or revenge by reason of a running feud or long-standing grudge between the Kwaknit gang and
the group of Samuel, who, being the son of the barangay captain, was a power to be reckoned with. It
mentioned the fact that a year before the incident in question, Toring was shot by Edgar Augusto (Samuels
brother) and hence, in his desire to avenge himself, Toring, needed but a little excuse to do away with the
object of his hatred.21
The lower court could not believe that Samuel brought along his shotgun to the dance because he was
not reputed to be a public official or functionary entitled to possess a firearm. Otherwise, the police and
the barangay tanod would have arrested him. The court surmised that if Samuel really carried a shotgun,
he certainly must have had a permit or license to possess the same.
It noted that while Toring testified that Samuel was aiming his shotgun at the chest of Ely Amyon (Amion),
prosecution witness Joel Escobia claimed that he was at the receiving end of
_______________
18 TSN, October 24, 1980, pp. 7-8.

19 TSN, October 24, 1980, pp. 5-6.
20 Presided by Judge Regino Hermosisima, Jr.
21 Decision, pp. 11-12.
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45
People vs. Toring
Samuels thrusts with the butt of his shotgun. To the court, such discrepancy is fatal to the defense
because in appreciating the justifying circumstance of defense of a stranger, the court must know with
definiteness the identity of the stranger defended by the accused.22
The lower court, however, ruled out the existence of conspiracy among the three accused on the ground
that there was no proof on what they were whispering about when Felix saw them. Accordingly, it held
that the accused have individual or separate liabilities for the killing of Samuel: Toring, as a principal,
Diosdado Berdon as an accomplice by his act of giving Toring the knife, and Carmelo Berdin as an accessory
for concealing the weapon. It considered treachery as the qualifying circumstance to the killing, found no
proof as to allegation of evident premeditation but appreciated nighttime as an aggravating circumstance.
It meted the accused the penalties mentioned above.
All three accused appealed.
Toring seeks his exoneration by contending that his assault on Samuel was justified because he acted in
defense of his first cousin, Joel Escobia. Article 11 (3) of the Revised Penal Code provides that no criminal
liability is incurred by anyone who acts in defense of x x x his relatives x x x by consanguinity within the
fourth civil degree, provided that the first and second requisites prescribed in the next preceding
circumstance are present, and the further requisite, in case the provocation was given by the person
attacked, that the one making defense had no part therein. The first and second requisites referred to are
enumerated in paragraph (b) in the same article on self-defense as: (a) unlawful aggression, and (b) lack of
sufficient provocation on the part of the person defending himself.
Joel Escobia, whose chin was hit with the butt of Samuels shotgun, is the first cousin of Toring their fathers
being brothers23 although no explanation appears on record why they have different surnames. At any
rate, this allegation on relationship was not rebutted by the prosecution.
_______________
22 Decision, p. 13.
23 TSN, October 23, 1980, p. 32.
46
46
People vs. Toring
The appreciation of the justifying circumstance of defense of a relative, however, hinges in this case on the
presence of unlawful aggression on the part of the victim. Corollarily, the claim of Toring that Samuel was,
at the time of the assault, carrying a shotgun to intimidate Torings group must be proven.
Understandably, no prosecution witness attested that they saw Samuel with a firearm. The prosecution
even recalled to the witness stand Samuels widow who asserted that her husband did not own any
firearm.24 Going along with the prosecutions evidence, the lower court arrived at the rather gratuitous
conjecture that Samuel could not have had a shotgun with him because no one without a permit would
carry a firearm without risking arrest by the police or the barangay tanod. At the same time, however, the
lower court described Samuel as the son of the barangay captain who had the run of the place and had his
compelling presence felt by all and sundry.25
While matters dealing with the credibility of witnesses and appreciation of evidence are primarily the
lower courts province, this Court has the power to determine whether in the performance of its functions,
the lower court overlooked certain matters which may have a substantial effect in the resolution of a
case.26 Defense witness Joel Escobia was, besides Toring, the only witness whose sworn statement was
taken by the police on May 26, 1980, the day after the fatal assault on Samuel.
In his sworn statement,27 Escobia attested that as he was about to dance with a girl, Samuel stopped him,
pointed his shotgun at him, took a bullet from his jacket pocket, showed it to Escobia and asked him, Do
you like this, Dong? to which Escobia replied, No, Noy, I do not like that. Samuel then placed the bullet
in the shotgun and was thus pointing it at Escobia when Toring came from behind Samuel and stabbed the
latter. Even on cross-examination at the trial, Escobia did not depart from his statement. In fact he added
that Samuel
_______________
24 TSN, October 27, 1980, p. 15.

25 Decision, p. 4.
26 People vs. Ligon, G.R. No. 74041, July 29, 1987, 152 SCRA 419, 426.
27 Exhibit G or Exhibit 2-Toring and Exhibit 3-Berdon and Berdin.
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47
People vs. Toring
pointed the shotgun at his chin and told him to eat the bullet.28
There is no reason to doubt Joel Escobias assertion of Samuels unlawful aggression inasmuch as his sworn
statement29 and testimony in court had not been successfully discredited by the prosecution which also
failed to prove that Joel had reason to prevaricate to favor Toring.
The presence of unlawful aggression on the part of the victim and the lack of proof of provocation on the
part of Toring notwithstanding, full credence cannot be given to Torings claim of defense of a relative.
Toring himself admitted in court30 as well as in his sworn statement31 that in 1979, he was shot with a .22
caliber revolver by Edgar Augusto, Samuels brother. It cannot be said, therefore, that in attacking Samuel,
Toring was impelled by pure compassion or beneficence or the lawful desire to avenge the immediate
wrong inflicted on his cousin. Rather, he was motivated by revenge, resentment or evil motive32 because
of a running feud between the Augusto and the Toring brothers. As the defense itself claims, after the
incident subject of the instant case occurred, Torings brother, Arsenio, was shot on the leg by Edgar
Augusto. Indeed, vendetta appears to have driven both camps to commit unlawful acts against each other.
Hence, under the circumstances, to justify Torings act of assaulting Samuel Augusto would give free rein to
lawlessness.
The lower court correctly considered the killing as murder in view of the presence of the qualifying
circumstance of treachery. The suddenness of the assault rendered Samuel helpless even to use his
shotgun. We also agree with the lower court that conspiracy and evident premeditation were not proven
beyond reasonable doubt. Moreover, nighttime cannot be considered as an aggravating circumstance.
There is no proof that it was purposely sought to insure the commission of the crime or prevent its
discovery.33 However, Toring should be credited
_______________
28 TSN, October 23, 1980, p. 35.

29 Exhibit G.
30 TSN, October 22, 1980, pp. 74-75.
31 Exhibit C.
32 See: People vs. Punzalan, G.R. No. 54562, August 6, 1987, 153 SCRA 1, 12.
33 People vs. Beltran, L-38049, July 15, 1985, 137 SCRA 508.
48
48
People vs. Toring
with the privileged mitigating circumstance of incomplete defense of relative and the generic mitigating
circumstance of voluntary surrender.
The penalty for murder under Article 248 of the Revised Penal Code being reclusion temporal maximum to
death, the imposable penalty is prision mayor maximum to reclusion temporal medium in view of the
presence of the mitigating circumstances of incomplete defense of relative and voluntary surrender (Art.
64 [5]). Applying the Indeterminate Sentence Law, the proper penalty to be meted on Toring is prision
correccional maximum as minimum to prision mayor maximum as maximum penalty.
On the culpability of Diosdado Berdon, the Court holds that his defense of alibi cannot be sustained in the
absence of proof that it was physically impossible for him to be at the scene of the crime when it was
committed.34 His house was only a kilometer away from the place where he supplied the knife to
Toring.35 That distance does not preclude the possibility that Diosdado aided Toring in the perpetration of
the crime as it could be negotiated in just a few minutes by merely walking.36 Moreover, his alibi was
uncorroborated as it was founded only on his own testimony and what appears as a self-exonerating
affidavit.37
But what pins culpability on Diosdado were the testimonies of at least two prosecution witnesses who
positively identified him as the one who gave Toring the knife. Motive, therefore, has become immaterial
in the face of such positive identification38 and hence, even if it were true that he was not a member of
the Kwaknit gang, his participation in the killing has been proven beyond reasonable doubt. Added to this
is the fact that Toring himself in his sworn statement before the police pointed to him as the source of the
knife.39 Verily, Toring could not have
_______________
34 People vs. Renejane, G.R. Nos. 76954-55, February 26, 1988, 158 SCRA 258, 268.
35 TSN, October 24, 1980, p. 9.
36 People vs. Santillan, G.R. No. 68331, January 29, 1988, 157 SCRA 534, 539.
37 Exhibit 4.
38 People vs. Anquillano, G.R. No. 72318, April 30, 1987, 149 SCRA 442.
39 Exhibit D.
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49
People vs. Toring
implicated him because of the incomprehensible reason that a case had been filed against Toring before
the barangay brigade.
Pursuant to Article 52 of the Revised Penal Code, as an accomplice by his previous act of supplying Toring
the death weapon, Diosdado Berdon should be meted the penalty of prision mayor maximum to reclusion
temporal medium which is the penalty next lower in degree to reclusion temporal maximum to death, the
penalty prescribed for murder by Article 248 (Article 6 [3]). There being no mitigating or aggravating
circumstances, the penalty should be in its medium period or reclusion temporal minimum (Article 64 [1]).
Applying the Indeterminate Sentence Law, the minimum penalty should be taken from prision mayor
minimum while the maximum penalty should be within the period of reclusion temporal minimum.
With regards to Carmelo Berdin, his culpability as an accessory to the murder has not been proven beyond
reasonable doubt. The fact that he knew where Toring hid the knife does not imply that he concealed it to
prevent its discovery (Article 19 [2]). There simply is no proof to that effect. On the contrary, Luis Toring in
his sworn statement and testimony during the trial testified that after stabbing the victim, he ran away and
went to his house to hide the murder weapon. Being a close friend of Toring and a frequent visitor to the
latters house, it is not impossible for Carmelo Berdin to know where Toring hid his knives. Significantly,
Carmelo readily acceded to the request of police officers to lead them to the place where Toring kept the
knife. He willingly retrieved it and surrendered it to the police, a behavior we find inconsistent with guilt.
WHEREFORE, the decision of the lower court is hereby affirmed insofar as it convicts Luis Toring as
principal in the murder of Samuel Augusto and Diosdado Berdon as an accom-plice thereto.
The lower courts decision is modified as follows:
(a) Luis Toring shall be imposed the indeterminate penalty of six (6) years of prision correccional maximum
as minimum to twelve (12) years of prision mayor maximum as maximum;
(b) Diosdado Berdon shall suffer the indeterminate penalty of six (6) years and one (1) day of prision mayor
minimum as minimum to twelve (12) years and one (1) day of reclusion temporal minimum as maximum;
50
50
Biala vs. Court of Appeals
(c) Carmelo Berdin is acquitted as an accessory to the murder of Samuel Augusto, and
(d) Luis Toring and Diosdado Berdon shall jointly and severally pay the heirs of Samuel Augusto an
indemnity of thirty thousand pesos (P30,000.00). Costs against appellants Toring and Berdon.
SO ORDERED.
Gutierrez, Jr. and Bidin, JJ., concur.
Feliciano, J., On leave.
Decision affirmed with modification.
Note.Nighttime and uninhabited place not aggravating when not especially sought. (People vs. Mesias,
Jr., 127 SCRA 792.)
o0o
9. Ty vs People
220
Ty vs. People
G.R. No. 149275. September 27, 2004.*
VICKY C. TY, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
Criminal Law; Exempting Circumstances; Defense of Uncontrollable Fear; Requisites for the defense of
acting under an uncontrollable fear to be invoked.The only question of law raisedwhether the defense
of uncontrollable fear is tenable to warrant her exemption from criminal liabilityhas to be resolved in the
negative. For this exempting circumstance to be invoked successfully, the following requisites must concur:
(1) existence of an uncontrollable fear; (2) the fear must be real and imminent; and (3) the fear of an injury
is greater than or at least equal to that committed.
Same; Same; Same; Same; A person invoking uncontrollable fear must show that the compulsion was such
that it reduced him to a mere instrument acting not only without will but against his will as well.It must
appear that the threat that caused the uncontrollable fear is of such gravity and imminence that the
ordinary man would have succumbed to it. It should be based on a real, imminent or reasonable fear for
ones life or limb. A mere threat of a future injury is not enough. It should not be speculative, fanciful, or
remote. A person invoking uncontrollable fear must show therefore that the compulsion was such that it
reduced him to a mere instrument acting not only without will but against his will as well. It must be of
such character as to leave no opportunity to the accused for escape.
_______________
* SECOND DIVISION.
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VOL. 439, SEPTEMBER 27, 2004

221
Ty vs. People
Same; Justifying Circumstances; State of Necessity; Requisites to exempt the actor from liability under par.
4, Art. II of the Revised Penal Code.The law prescribes the presence of three requisites to exempt the
actor from liability under this paragraph: (1) that the evil sought to be avoided actually exists; (2) that the
injury feared be greater than the one done to avoid it; (3) that there be no other practical and less harmful
means of preventing it.
Same; Same; Same; If the evil sought to be avoided is merely expected or anticipated or may happen in the
future, this defense is not applicable.In the instant case, the evil sought to be avoided is merely expected
or anticipated. If the evil sought to be avoided is merely expected or anticipated or may happen in the
future, this defense is not applicable. Ty could have taken advantage of an available option to avoid
committing a crime. By her own admission, she had the choice to give jewelry or other forms of security
instead of postdated checks to secure her obligation.
Same; Same; Same; For the defense of state of necessity to be availing, the greater injury feared should not
have been brought about by the negligence or imprudence, more so, the willful inaction of the actor.For
the defense of state of necessity to be availing, the greater injury feared should not have been brought
about by the negligence or imprudence, more so, the willful inaction of the actor. In this case, the issuance
of the bounced checks was brought about by Tys own failure to pay her mothers hospital bills.
Same; Bouncing Checks Law; Evidence; It is presumed, upon the issuance of the checks, in the absence of
evidence to the contrary, that the same was issued for valuable consideration.As to the issue of
consideration, it is presumed, upon issuance of the checks, in the absence of evidence to the contrary, that
the same was issued for valuable consideration. Section 24 of the Negotiable Instruments Law creates a
presumption that every party to an instrument acquired the same for a consideration or for value. In
alleging otherwise, Ty has the onus to prove that the checks were issued without consideration. She must
present convincing evidence to overthrow the presumption.
Same; Same; Same; The law punishes the mere act of issuing a bouncing check, not the purpose for which
it was issued nor the terms and conditions relating to its issuance.The law punishes the mere
222
222
Ty vs. People
act of issuing a bouncing check, not the purpose for which it was issued nor the terms and conditions
relating to its issuance. B.P. 22 does not make any distinction as to whether the checks within its
contemplation are issued in payment of an obligation or to merely guarantee the obligation. The thrust of
the law is to prohibit the making of worthless checks and putting them into circulation. As this Court held
in Lim v. People of the Philippines, what is primordial is that such issued checks were worthless and the
fact of its worthlessness is known to the appellant at the time of their issuance, a required element under
B.P. Blg. 22.
Same; Same; Same; Knowledge of insufficiency of funds legally presumed from the dishonor of the checks
for insufficiency of funds.Such knowledge is legally presumed from the dishonor of the checks for
insufficiency of funds. If not rebutted, it suffices to sustain a conviction.
Same; Same; Same; The gravamen of the offense is the issuance of a bad check, hence, malice and intent in
the issuance thereof is inconsequential.The knowledge of the payee of the insufficiency or lack of funds
of the drawer with the drawee bank is immaterial as deceit is not an essential element of an offense
penalized by B.P. 22. The gravamen of the offense is the issuance of a bad check, hence, malice and intent
in the issuance thereof is inconsequential.
Same; Same; Penalty; Administrative Circular 12-2000, adopting the rulings in Vaca v. Court of Appeals and
Lim v. People, authorizes the non-imposition of the penalty of imprisonment in B.P. 22 cases subject to
certain conditions.We agree with the Court of Appeals in deleting the penalty of imprisonment, absent
any proof that petitioner was not a first-time offender nor that she acted in bad faith. Administrative
Circular 12-2000, adopting the rulings in Vaca v. Court of Appeals and Lim v. People, authorizes the nonimposition of the penalty of imprisonment in B.P. 22 cases subject to certain conditions.
PETITION for review on certiorari of a decision of the Court of Appeals.

Marvin L. Herrera for petitioner.
223

223
Ty vs. People
TINGA, J.:
Petitioner Vicky C. Ty (Ty) filed the instant Petition for Review under Rule 45, seeking to set aside the
Decision1 of the Court of Appeals Eighth Division in CA-G.R. CR No. 20995, promulgated on 31 July 2001.
The Decision affirmed with modification the judgment of the Regional Trial Court (RTC) of Manila, Branch
19, dated 21 April 1997, finding her guilty of seven (7) counts of violation of Batas Pambansa Blg. 222 (B.P.
22), otherwise known as the Bouncing Checks Law.
This case stemmed from the filing of seven (7) Informations for violation of B.P. 22 against Ty before the
RTC of Manila. The Informations were docketed as Criminal Cases No. 93-130459 to No. 93-130465. The
accusatory portion of the Information in Criminal Case No. 93-130465 reads as follows:
That on or about May 30, 1993, in the City of Manila, Philippines, the said accused did then and there
willfully, unlawfully and feloniously make or draw and issue to Manila Doctors Hospital to apply on
account or for value to Editha L. Vecino Check No. Metrobank 487712 dated May 30, 1993 payable to
Manila Doctors Hospital in the amount of P30,000.00, said accused well knowing that at the time of issue
she did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon
its presentment, which check when presented for payment within ninety (90) days from the date hereof,
was subsequently dishonored by the drawee bank for Account Closed and despite receipt of notice of
such dishonor, said accused failed to pay said Manila Doctors Hospital the amount of the check or to make
arrangement for full payment of the same within five (5) banking days after receiving said notice.
_______________
1 Penned by Justice Perlita J. Tria Tirona, concurred in by Justices Eugenio S. Labitoria and Eloy R. Bello, Jr.
2 Entitled An Act Penalizing the Making or Drawing and Issuance of a Check Without Sufficient Funds or
Credit and for Other Purposes.
224
224
Ty vs. People
Contrary to law.3
The other Informations are similarly worded except for the number of the checks and dates of issue. The
data are hereunder itemized as follows:
Criminal Case No.
Check No.
Postdated
Amount
93-130459
487710
30 March 1993
P30,000.00
93-130460
487711
30 April 1993
P30,000.00
93-130461
487709
01 March 1993
P30,000.00
93-130462
487707
30 December 1992
P30,000.00
93-130463
487706
30 November 1992
P30,000.00
93-130464
487708
30 January 1993
P30,000.00
93-130465
487712
30 May 1993
P30,000.004
The cases were consolidated and jointly tried. At her arraignment, Ty pleaded not guilty.5
The evidence for the prosecution shows that Tys mother Chua Lao So Un was confined at the Manila
Doctors Hospital (hospital) from 30 October 1990 until 4 June 1992. Being the patients daughter, Ty
signed the Acknowledgment of Responsibility for Payment in the Contract of Admission dated 30
October 1990.6 As of 4 June 1992, the Statement of Account7 shows the total liability of the mother in the
amount of P657,182.40. Tys sister, Judy Chua, was also confined at the hospital from 13 May 1991 until 2
May 1992, incurring hospital bills in the amount of P418,410.55.8 The total hospital bills of the two
patients amounted to P1,075,592.95. On 5 June 1992, Ty executed a promissory note wherein she
assumed
_______________
3 Rollo, p. 44; See also Rollo, pp. 92 and 109.

4 Ibid.; See also Rollo, pp. 62 and 93.
5 Id., at pp. 44, 62, 93.
6 Id., at p. 46; Exhibits C and C-1.
7 Ibid.; Exhibits D, D-1 to D-3.
8 Exhibit D-4.
225

225
Ty vs. People
payment of the obligation in installments.9 To assure payment of the obligation, she drew several
postdated checks against Metrobank payable to the hospital. The seven (7) checks, each covering the
amount of P30,000.00, were all deposited on their due dates. But they were all dishonored by the drawee
bank and returned unpaid to the hospital due to insufficiency of funds, with the Account Closed advice.
Soon thereafter, the complainant hospital sent demand letters to Ty by registered mail. As the demand
letters were not heeded, complainant filed the seven (7) Informations subject of the instant case.10
For her defense, Ty claimed that she issued the checks because of an uncontrollable fear of a greater
injury. She averred that she was forced to issue the checks to obtain release for her mother whom the
hospital inhumanely and harshly treated and would not discharge unless the hospital bills are paid. She
alleged that her mother was deprived of room facilities, such as the air-condition unit, refrigerator and
television set, and subject to inconveniences such as the cutting off of the telephone line, late delivery of
her mothers food and refusal to change the latters gown and bedsheets. She also bewailed the hospitals
suspending medical treatment of her mother. The debasing treatment, she pointed out, so affected her
mothers mental, psychological and physical health that the latter contemplated suicide if she would not
be discharged from the hospital. Fearing the worst for her mother, and to comply with the demands of the
hospital, Ty was compelled to sign a promissory note, open an account with Metrobank and issue the
checks to effect her mothers immediate discharge.11
Giving full faith and credence to the evidence offered by the prosecution, the trial court found that Ty
issued the checks
_______________
9 Supra, note 3 at p. 61, citing Exhibits E and E-1.

10 Id., at pp. 46-47; See also Respondents Comment, Rollo, pp. 60-61 and Respondents Memorandum,
Rollo, pp. 90-91.
11 Id., at pp. 47 and 49.
226
226
Ty vs. People
subject of the case in payment of the hospital bills of her mother and rejected the theory of the defense.12
Thus, on 21 April 1997, the trial court rendered a Decision finding Ty guilty of seven (7) counts of violation
of B.P. 22 and sentencing her to a prison term. The dispositive part of the Decision reads:
CONSEQUENTLY, the accused Vicky C. Ty, for her acts of issuing seven (7) checks in payment of a valid
obligation, which turned unfounded on their respective dates of maturity, is found guilty of seven (7)
counts of violations of Batas Pambansa Blg. 22, and is hereby sentenced to suffer the penalty of
imprisonment of SIX MONTHS per count or a total of forty-two (42) months.
SO ORDERED.13
Ty interposed an appeal from the Decision of the trial court. Before the Court of Appeals, Ty reiterated her
defense that she issued the checks under the impulse of an uncontrollable fear of a greater injury or in
avoidance of a greater evil or injury. She also argued that the trial court erred in finding her guilty when
evidence showed there was absence of valuable consideration for the issuance of the checks and the
payee had knowledge of the insufficiency of funds in the account. She protested that the trial court should
not have applied the law mechanically, without due regard to the principles of justice and equity.14
In its Decision dated 31 July 2001, the appellate court affirmed the judgment of the trial court with
modification. It set aside the penalty of imprisonment and instead sentenced Ty to pay a fine of sixty
thousand pesos (P60,000.00) equivalent to double the amount of the check, in each case.15
_______________
12 Id., at p. 48.
13 Id., at pp. 44-45; Written by Honorable Zenaida R. Daguna, Presiding Judge.
14 Id., at p. 51.
15 Id., at p. 53.
227

227
Ty vs. People
In its assailed Decision, the Court of Appeals rejected Tys defenses of involuntariness in the issuance of the
checks and the hospitals knowledge of her checking accounts lack of funds. It held that B.P. 22 makes the
mere act of issuing a worthless check punishable as a special offense, it being a malum prohibitum. What
the law punishes is the issuance of a bouncing check and not the purpose for which it was issued nor the
terms and conditions relating to its issuance.16
Neither was the Court of Appeals convinced that there was no valuable consideration for the issuance of
the checks as they were issued in payment of the hospital bills of Tys mother.17
In sentencing Ty to pay a fine instead of a prison term, the appellate court applied the case of Vaca v. Court
of Appeals18 wherein this Court declared that in determining the penalty imposed for violation of B.P. 22,
the philosophy underlying the Indeterminate Sentence Law should be observed, i.e., redeeming valuable
human material and preventing unnecessary deprivation of personal liberty and economic usefulness, with
due regard to the protection of the social order.19
Petitioner now comes to this Court basically alleging the same issues raised before the Court of Appeals.
More specifically, she ascribed errors to the appellate court based on the following grounds:
A. THERE IS CLEAR AND CONVINCING EVIDENCE THAT PETITIONER WAS FORCED TO OR COMPELLED IN THE
OPENING OF THE ACCOUNT AND THE ISSUANCE OF THE SUBJECT CHECKS.
B. THE CHECKS WERE ISSUED UNDER THE IMPULSE OF AN UNCONTROLLABLE FEAR OF A GREATER INJURY
OR IN AVOIDANCE OF A GREATER EVIL OR INJURY.
_______________
16 Id., at pp. 51-52; Citations omitted.

17 Id., at p. 51.
18 G.R. No. 131714, 16 November 1998, 298 SCRA 656, 659.
19 Supra, note 3 at p. 53.
228
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Ty vs. People
C. THE EVIDENCE ON RECORD PATENTLY SHOW[S] ABSENCE OF VALUABLE CONSIDERATION IN THE
ISSUANCE OF THE SUBJECT CHECKS.
D. IT IS AN UNDISPUTED FACT THAT THE PAYEE OF THE CHECKS WAS FULLY AWARE OF THE LACK OF
FUNDS IN THE ACCOUNT.
E. THE HONORABLE COURT OF APPEALS, AS WELL AS THE HONORABLE TRIAL COURT [,] SHOULD NOT HAVE
APPLIED CRIMINAL LAW MECHANICALLY, WITHOUT DUE REGARD TO THE PRINCIPLES OF JUSTICE AND
EQUITY.
In its Memorandum,20 the Office of the Solicitor General (OSG), citing jurisprudence, contends that a
check issued as an evidence of debt, though not intended to be presented for payment, has the same
effect as an ordinary check; hence, it falls within the ambit of B.P. 22. And when a check is presented for
payment, the drawee bank will generally accept the same, regardless of whether it was issued in payment
of an obligation or merely to guarantee said obligation. What the law punishes is the issuance of a
bouncing check, not the purpose for which it was issued nor the terms and conditions relating to its
issuance. The mere act of issuing a worthless check is malum prohibitum.21
We find the petition to be without merit and accordingly sustain Tys conviction.
Well-settled is the rule that the factual findings and conclusions of the trial court and the Court of Appeals
are entitled to great weight and respect, and will not be disturbed on appeal in the absence of any clear
showing that the trial court overlooked certain facts or circumstances which would substantially affect the
disposition of the case.22 Jurisdiction of
_______________
20 Id., at pp. 90-102; Dated 11 September 2002.

21 Id., at pp. 95-96; Citations omitted.
22 Spouses Villarico v. Court of Appeals, G.R. No. 105912, 28 June 1999, 309 SCRA 193; Lim v. People, G.R.
No. 143231, 26 October 2001, 368 SCRA 436.
229

229
Ty vs. People
this Court over cases elevated from the Court of Appeals is limited to reviewing or revising errors of law
ascribed to the Court of Appeals whose factual findings are conclusive, and carry even more weight when
said court affirms the findings of the trial court, absent any showing that the findings are totally devoid of
support in the record or that they are so glaringly erroneous as to constitute serious abuse of discretion.23
In the instant case, the Court discerns no compelling reason to reverse the factual findings arrived at by the
trial court and affirmed by the Court of Appeals.
Ty does not deny having issued the seven (7) checks subject of this case. She, however, claims that the
issuance of the checks was under the impulse of an uncontrollable fear of a greater injury or in avoidance
of a greater evil or injury. She would also have the Court believe that there was no valuable consideration
in the issuance of the checks.
However, except for the defenses claim of uncontrollable fear of a greater injury or avoidance of a greater
evil or injury, all the grounds raised involve factual issues which are best determined by the trial court.
And, as previously intimated, the trial court had in fact discarded the theory of the defense and rendered
judgment accordingly.
Moreover, these arguments are a mere rehash of arguments unsuccessfully raised before the trial court
and the Court of Appeals. They likewise put to issue factual questions already passed upon twice below,
rather than questions of law appropriate for review under a Rule 45 petition.
The only question of law raisedwhether the defense of uncontrollable fear is tenable to warrant her
exemption from
_______________
23 Alipoon v. Court of Appeals, G.R. No. 127523, 22 March 1999, 305 SCRA 118; Perez v. Court of Appeals,
G.R. No. 107737, 1 October 1999, 316 SCRA 43; Baguio v. Republic of the Philippines, G.R. No. 119682, 21
January 1999, 301 SCRA 450; Lim v. People, G.R. No. 143231, 26 October 2001, 368 SCRA 436.
1
230
230
Ty vs. People
criminal liabilityhas to be resolved in the negative. For this exempting circumstance to be invoked
successfully, the following requisites must concur: (1) existence of an uncontrollable fear; (2) the fear must
be real and imminent; and (3) the fear of an injury is greater than or at least equal to that committed.24
It must appear that the threat that caused the uncontrollable fear is of such gravity and imminence that
the ordinary man would have succumbed to it.25 It should be based on a real, imminent or reasonable fear
for ones life or limb.26 A mere threat of a future injury is not enough. It should not be speculative,
fanciful, or remote.27 A person invoking uncontrollable fear must show therefore that the compulsion was
such that it reduced him to a mere instrument acting not only without will but against his will as well.28 It
must be of such character as to leave no opportunity to the accused for escape.29
In this case, far from it, the fear, if any, harbored by Ty was not real and imminent. Ty claims that she was
compelled
_______________
24 People v. Petenia, No. L-51256, 12 August 1986, 143 SCRA 361, 369.
25 U.S. v. Elicanal, No. 11439, 35 Phil. 209, 212, 213 (1916).
26 People v. Abanes, No. L-30609, 28 September 1976, 73 SCRA 44, 47; People v. Loreno, No. L-54414, 9
July 1984, 130 SCRA 311, 321, 322; People v. Serrano, No. L-45382, 13 May 1985, 136 SCRA 399, 405.
27 People v. Jesus, No. L-2313, 88 Phil. 53, 56 (1951); People v. Palencia, No. L-38957, 30 April 1976, 71
SCRA 679, 690; See also Aquino, THE REVISED PENAL CODE, 1997 Edition, Vol. 1, p. 234 and Gregorio,
FUNDAMENTALS OF CRIMINAL LAW REVIEW, 1997 Edition, p. 79.
28 People v. Tami, G.R. Nos. 101801-03, 2 May 1995, 244 SCRA 1, 23.
29 People v. Villanueva, No. L-9529, 104 Phil. 450, 464 (1958), Citation omitted; People v. De Los Reyes,
G.R. No. 44112, 22 October 1992, 215 SCRA 63, 70; See also People v. Nuez, G.R. Nos. 112429-30, 341
Phil. 817, 828; 276 SCRA 9 (1997).
231

231
Ty vs. People
to issue the checksa condition the hospital allegedly demanded of her before her mother could be
dischargedfor fear that her mothers health might deteriorate further due to the inhumane treatment of
the hospital or worse, her mother might commit suicide. This is speculative fear; it is not the uncontrollable
fear contemplated by law.
To begin with, there was no showing that the mothers illness was so life-threatening such that her
continued stay in the hospital suffering all its alleged unethical treatment would induce a well-grounded
apprehension of her death. Secondly, it is not the laws intent to say that any fear exempts one from
criminal liability much less petitioners flimsy fear that her mother might commit suicide. In other words,
the fear she invokes was not impending or insuperable as to deprive her of all volition and to make her a
mere instrument without will, moved exclusively by the hospitals threats or demands.
Ty has also failed to convince the Court that she was left with no choice but to commit a crime. She did not
take advantage of the many opportunities available to her to avoid committing one. By her very own
words, she admitted that the collateral or security the hospital required prior to the discharge of her
mother may be in the form of postdated checks or jewelry.30 And if indeed she was coerced to open an
account with the bank and issue the checks, she had all the opportunity to leave the scene to avoid
involvement.
Moreover, petitioner had sufficient knowledge that the issuance of checks without funds may result in a
violation of B.P. 22. She even testified that her counsel advised her not to open a current account nor issue
postdated checks because the moment I will not have funds it will be a big problem.31 Besides, apart
from petitioners bare assertion, the record is
_______________
30 Supra, note 3 at 15 and 112; See also TSN dated September 19, 1994, p. 24.
31 TSN dated September 19, 1994, p. 25.
232
232
Ty vs. People
bereft of any evidence to corroborate and bolster her claim that she was compelled or coerced to
cooperate with and give in to the hospitals demands.
Ty likewise suggests in the prefatory statement of her Petition and Memorandum that the justifying
circumstance of state of necessity under par. 4, Art. 11 of the Revised Penal Code may find application in
this case.
We do not agree. The law prescribes the presence of three requisites to exempt the actor from liability
under this paragraph: (1) that the evil sought to be avoided actually exists; (2) that the injury feared be
greater than the one done to avoid it; (3) that there be no other practical and less harmful means of
preventing it.32
In the instant case, the evil sought to be avoided is merely expected or anticipated. If the evil sought to be
avoided is merely expected or anticipated or may happen in the future, this defense is not applicable.33 Ty
could have taken advantage of an available option to avoid committing a crime. By her own admission, she
had the choice to give jewelry or other forms of security instead of postdated checks to secure her
obligation.
Moreover, for the defense of state of necessity to be availing, the greater injury feared should not have
been brought about by the negligence or imprudence, more so, the willful inaction of the actor.34 In this
case, the issuance of the bounced checks was brought about by Tys own failure to pay her mothers
hospital bills.
The Court also thinks it rather odd that Ty has chosen the exempting circumstance of uncontrollable fear
and the justifying circumstance of state of necessity to absolve her of liability. It would not have been half
as bizarre had Ty been able to
_______________
32 Par. 4, Art. 11, REVISED PENAL CODE.

33 Reyes, THE REVISED PENAL CODE, 1998 Edition, Book 1, p. 191.
34 Id., at p. 192.
233
233
Ty vs. People
prove that the issuance of the bounced checks was done without her full volition. Under the
circumstances, however, it is quite clear that neither uncontrollable fear nor avoidance of a greater evil or
injury prompted the issuance of the bounced checks.
Parenthetically, the findings of fact in the Decision of the trial court in the Civil Case35 for damages filed by
Tys mother against the hospital is wholly irrelevant for purposes of disposing the case at bench. While the
findings therein may establish a claim for damages which, we may add, need only be supported by a
preponderance of evidence, it does not necessarily engender reasonable doubt as to free Ty from liability.
As to the issue of consideration, it is presumed, upon issuance of the checks, in the absence of evidence to
the contrary, that the same was issued for valuable consideration.36 Section 2437 of the Negotiable
Instruments Law creates a presumption that every party to an instrument acquired the same for a
consideration38 or for value.39 In alleging otherwise, Ty has the onus to prove that the checks were issued
without considera_______________
35 Entitled So Un Chua v. Manila Doctors Hospital, Civil Case No. 63958, Regional Trial Court of Pasig,
Branch 159.
36 Lim v. People, G.R. No. 143231, 26 October 2001, 368 SCRA 436; Sec. 24, THE NEGOTIABLE
INSTRUMENTS LAW.
37 SEC. 24. Presumption of consideration.Every negotiable instrument is deemed prima facie to have
been issued for valuable consideration; and every person whose signature appears thereon to have
become a party thereto, for value.
38 SEC. 25. Value; What constitutes.Value is any consideration sufficient to support a simple contract. An
antecedent or preexisting debt constitutes value, and is deemed such whether the instrument is payable
on demand or at a future date.
39 SEC. 191. Definitions and meaning of terms.In this Act, unless the context otherwise requires:
xxx
Value means valuable consideration.
234
234
Ty vs. People
tion. She must present convincing evidence to overthrow the presumption.

A scrutiny of the records reveals that petitioner failed to discharge her burden of proof. Valuable
consideration may in general terms, be said to consist either in some right, interest, profit, or benefit
accruing to the party who makes the contract, or some forbearance, detriment, loss or some responsibility,
to act, or labor, or service given, suffered or undertaken by the other aide. Simply defined, valuable
consideration means an obligation to give, to do, or not to do in favor of the party who makes the contract,
such as the maker or indorser.40
In this case, Tys mother and sister availed of the services and the facilities of the hospital. For the care
given to her kin, Ty had a legitimate obligation to pay the hospital by virtue of her relationship with them
and by force of her signature on her mothers Contract of Admission acknowledging responsibility for
payment, and on the promissory note she executed in favor of the hospital.
Anent Tys claim that the obligation to pay the hospital bills was not her personal obligation because she
was not the patient, and therefore there was no consideration for the checks, the case of Bridges v. Vann,
et al.41 tells us that it is no defense to an action on a promissory note for the maker to say that there was
no consideration which was beneficial to him personally; it is sufficient if the consideration was a benefit
conferred upon a third person, or a detriment suffered by the promisee, at the instance of the promissor.
It is enough if the obligee foregoes some right or privilege or suffers some detriment and the release and
extinguishment of the original
_______________
40 Agbayani, Aguedo, COMMENTARIES AND JURISPRUDENCE ON THE COMMERCIAL LAWS OF THE

PHILIPPINES, 1992 Edition, p. 235; Citations omitted.
41 88 Kan 98, 127 Pacific Reporter 604, 9 November 1912; Citations omitted.
235

235
Ty vs. People
obligation of George Vann, Sr., for that of appellants meets the requirement. Appellee accepted one
debtor in place of another and gave up a valid, subsisting obligation for the note executed by the
appellants. This, of itself, is sufficient consideration for the new notes.
At any rate, the law punishes the mere act of issuing a bouncing check, not the purpose for which it was
issued nor the terms and conditions relating to its issuance.42 B.P. 22 does not make any distinction as to
whether the checks within its contemplation are issued in payment of an obligation or to merely guarantee
the obligation.43 The thrust of the law is to prohibit the making of worthless checks and putting them into
circulation.44 As this Court held in Lim v. People of the Philippines,45 what is primordial is that such
issued checks were worthless and the fact of its worthlessness is known to the appellant at the time of
their issuance, a required element under B.P. Blg. 22.
The law itself creates a prima facie presumption of knowledge of insufficiency of funds. Section 2 of B.P. 22
provides:
Section 2. Evidence of knowledge of insufficient funds.The making, drawing and issuance of a check
payment of which is refused by the drawee bank because of insufficient funds in or credit with such bank,
when presented within ninety (90) days from the date of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the
amount due thereon, or makes arrangements for
_______________
42 Llamado v. Court of Appeals, G.R. No. 99032, 26 March 1997, 270 SCRA 423; Aguirre v. People, G.R. No.
144142, 23 August 2001, 363 SCRA 672; Abarquez v. Court of Appeals, G.R. No. 148557, 7 August 2003, 408
SCRA 500; Lazaro v. Court of Appeals, G.R. No. 105461, 11 November 1993, 227 SCRA 723.
43 Llamado v. Court of Appeals, supra.
44 Caram Resources Corp. v. Contreras, Adm. Matter No. MJT-93-849, 26 October 1994, 237 SCRA 724;
Cruz v. Court of Appeals, G.R. No. 108738, 17 June 1994, 233 SCRA 301.
45 G.R. No. 143231, 26 October 2001, 368 SCRA 436.
236
236
Ty vs. People
payment in full by the drawee of such check within five (5) banking days after receiving notice that such
check has not been paid by the drawee.
Such knowledge is legally presumed from the dishonor of the checks for insufficiency of funds.46 If not
rebutted, it suffices to sustain a conviction.47
Petitioner likewise opines that the payee was aware of the fact that she did not have sufficient funds with
the drawee bank and such knowledge necessarily exonerates her liability.
The knowledge of the payee of the insufficiency or lack of funds of the drawer with the drawee bank is
immaterial as deceit is not an essential element of an offense penalized by B.P. 22. The gravamen of the
offense is the issuance of a bad check, hence, malice and intent in the issuance thereof is
inconsequential.48
In addition, Ty invokes our ruling in Magno v. Court of Appeals49 wherein this Court inquired into the true
nature of transaction between the drawer and the payee and finally acquitted the accused, to persuade
the Court that the circumstances surrounding her case deserve special attention and do not warrant a
strict and mechanical application of the law.
Petitioners reliance on the case is misplaced. The material operative facts therein obtaining are different
from those established in the instant petition. In the 1992 case, the bounced checks were issued to cover a
warranty deposit in a lease contract, where the lessor-supplier was also the financier of the deposit. It
was a modus operandi whereby the supplier was able to sell or lease the goods while privately
_______________
46 Meriz v. People, G.R. No. 134498, 13 November 2001, 368 SCRA 524.
47 Rosa Lim v. People, G.R. No. 130038, 18 September 2000, 340 SCRA 497.
48 Cruz v. Court of Appeals, G.R. No. 108738, 17 June 1994, 233 SCRA 301.
49 G.R. No. 96132, 26 June 1992, 210 SCRA 471.
237

237
Ty vs. People
financing those in desperate need so they may be accommodated. The maker of the check thus became an
unwilling victim of a lease agreement under the guise of a leasepurchase agreement. The maker did not
benefit at all from the deposit, since the checks were used as collateral for an accommodation and not to
cover the receipt of an actual account or credit for value.
In the case at bar, the checks were issued to cover the receipt of an actual account or for value.
Substantial evidence, as found by the trial court and Court of Appeals, has established that the checks were
issued in payment of the hospital bills of Tys mother.
Finally, we agree with the Court of Appeals in deleting the penalty of imprisonment, absent any proof that
petitioner was not a first-time offender nor that she acted in bad faith. Administrative Circular 12-2000,50
adopting the rulings in Vaca v. Court of Appeals51 and Lim v. People,52 authorizes the non-imposition of
the penalty of imprisonment in B.P. 22 cases subject to certain conditions. However, the Court resolves to
modify the penalty in view of Administrative Circular 13-200153 which clarified Administrative 12-2000. It
is stated therein:
The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove imprisonment as an
alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in
B.P. Blg. 22.
Thus, Administrative Circular 12-2000 establishes a rule of preference in the application of the penal
provisions of B.P. Blg. 22 such that where the circumstances of both the offense and the offender clearly
indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone
should be considered as the more appropriate penalty. Needless to say, the determi_______________
50 Issued on 21 November 2000.

51 Supra note 14.
52 Supra note 27.
53 Issued on 14 February 2001.
238
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Ty vs. People
nation of whether circumstances warrant the imposition of a fine alone rests solely upon the Judge. Should
the judge decide that imprisonment is the more appropriate penalty, Administrative Circular No. 12-2000
ought not be deemed a hindrance.
It is therefore understood that: (1) Administrative Circular 12-2000 does not remove imprisonment as an
alternative penalty for violations of B.P. 22; (2) the judges concerned may, in the exercise of sound
discretion, and taking into consideration the peculiar circumstances of each case, determine whether the
imposition of a fine alone would best serve the interests of justice, or whether forbearing to impose
imprisonment would depreciate the seriousness of the offense, work violence on the social order, or
otherwise be contrary to the imperatives of justice; (3) should only a fine be imposed and the accused
unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provisions on
subsidiary imprisonment.54
WHEREFORE, the instant Petition is DENIED and the assailed Decision of the Court of Appeals, dated 31 July
2001, finding petitioner Vicky C. Ty GUILTY of violating Batas Pambansa Bilang 22 is AFFIRMED with
MODIFICATIONS. Petitioner Vicky C. Ty is ORDERED to pay a FINE equivalent to double the amount of each
dishonored check subject of the seven cases at bar with subsidiary imprisonment in case of insolvency in
accordance with Article 39 of the Revised Penal Code. She is also ordered to pay private complainant,
Manila Doctors Hospital, the amount of Two Hundred Ten Thousand Pesos (P210,000.00) representing the
total amount of the dishonored checks. Costs against the petitioner.
SO ORDERED.
Puno (Chairman), Austria-Martinez and Callejo, Sr., concur.
_______________
54 Abarquez v. Court of Appeals, G.R. No. 148557, 7 August 2003, 408 SCRA 500.
239

239
Social Security Commission vs. Court of Appeals
Chico-Nazario, J., On Leave.
Petition denied, assailed decision affirmed with modifications.
Note.The gravamen of Batas Pambansa Blg. 22 is the act of making and issuing a worthless check or one
that is dishonored upon its presentment for payment. (Lim vs. People, 340 SCRA 497 [2000])
o0o
10. Baxinela vs People
G.R. No. 149652
March 24, 2006
EDUARDO L. BAXINELA, Petitioner-Appellant,

vs.
THE PEOPLE OF THE PHILIPPINES, Respondent-Appellee.
DECISION
AZCUNA, J.:
Petitioner SPO2 Eduardo L. Baxinela assails his conviction for the crime of homicide by the Regional Trial
Court of Kalibo, Aklan1 (RTC) in Criminal Case No. 4877, as affirmed with modification by the Court of
Appeals (CA) in CA-G.R. CR No. 23348.
On February 19, 1997, an Information charging Baxinela with the crime of homicide was filed as follows:2
That on or about the 19th day of October , 1996, early in the morning, at Poblacion, Municipality of Kalibo,
Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, while armed with a handgun, without justifiable cause and with intent to kill, did
then and there wi[l]lfully, unlawfully and feloniously attack, assault and shoot one RUPERTO F. LAJO,
thereby inflicting upon the latter mortal wounds, to wit:
"A. EXTERNAL FINDINGS:
= .56 cm entrance gunshot wound proximal third lateral aspect left arm with fracture of the
left humerus.
= 1 cm exit wound proximal third medial aspect left arm.
= 1 cm entrance gunshot wound anterior axillary line 5th intercostals space left chest.
B. INTERNAL FINDINGS
= One liter of flood left thoracic cavity
= Perforated left diaphragm.
= One two liters of blood in the abdominal cavity.
= 2 point perforation stomach
= Multiple perforation small, and large intestines and mesenteries.
= (+) Retroperitonial hematoma
DIAGNOSIS: Gunshot wound left of arm with fracture of the humerus, penetrating the (L) thoracic
cavity perforating the diaphragm, abdomen, stomach and, intestines and retroperitoneum with
slugs lodging the vertebral colum[n].
CAUSE OF DEATH: Cardiopulmonary arrest

Secondary to severe bleeding
Secondary to gunshot wound."
as per Autopsy Report issued by Dr. Roel A. Escanillas, Medical Officer III, Dr. Rafael S. Tumbokon Memorial
Hospital, Kalibo, Aklan, which wounds directly caused the death of RUPERTO F. LAJO, as per Certificate of
Death, hereto attached as Annexes "A" and "B" and forming part of this Information.
That as a result of the criminal acts of the accused the heirs of the deceased suffered actual and
compensatory damages in the amount of FIFTY THOUSAND PESOS (P50,000.00).
CONTRARY TO LAW.
On April 30, 1997, Baxinela was arraigned and pleaded NOT GUILTY.3 During pre-trial, Baxinela informed
the RTC that he would be claiming the justifying circumstance of self-defense.4 In accordance with the
Rules of Criminal Procedure, the defense was the first to present evidence.5
The first witness for the defense was Insp. Joel Regimen.6 He testified that on October 19, 1996, at about
12:35 a.m., he and Baxinela were walking along Toting Reyes Street in Kalibo, Aklan when they were
approached by a civilian named Romy Manuba who informed them of a drunken person drawing a gun and
creating trouble inside the Playboy Disco Pub located on the second floor of the Kingsmen building. 7 They
immediately proceeded to the reported place and, upon arrival, recognized a former colleague, SPO4
Legarda, who was with a companion. Legarda invited them to his table and the two obliged. Later, while
seated at the table, they saw someone with a handgun visibly tucked at the back of his waist about 4
meters away. Regimen then instructed Baxinela to take a closer look at this person while he makes a call to
the Kalibo police station but before Regimen could stand up, the man with a gun started to walk towards
the door. As he passed by their table, Baxinela stood up, introduced himself as a policeman and asked the
man why he had a gun with him. The man did not respond and, instead, suddenly drew out his gun.
Baxinela then drew his sidearm and was able to fire first, hitting the man on his upper left arm. When the
man fell down, Baxinela took his gun and wallet and handed them over to Regimen. Regimen then stated
that he enlisted the services of the pubs security guard to bring the wounded man to the hospital while he
and Baxinela proceeded to the Kalibo Police Station and reported the matter to SPO4 Salvador Advincula.
They also went to Camp Pastor Martelino to report the matter to the Officer-in-Charge, Col. Bianson.
The second witness for the defense was Romy Manuba,8 who testified that on October 19, 1996, at around
12:30 a.m., he was on the second floor of the Kingsmen building drinking liquor. While inside, he saw a
drunken man wearing a white polo shirt accosting several persons with a gun. Fearing the man with the
gun, he left the place to go home. On his way home he saw Regimen and Baxinela and he reported to them
what he had seen earlier.
The third witness for the defense was SPO4 Nepomuceno Legarda (Ret.).9 He testified that on October 18,
1996, at about 11:00 p.m., he was inside the Superstar Disco Pub drinking beer with a companion named
Toto Dalida. At about 12:40 a.m., Legarda saw Regimen and Baxinela enter the pub and he invited them
over to his table. Later, as they were seating on the table, he noticed Regimen whisper something to
Baxinela and, at the same time, pointing to a man with a handgun visibly tucked at the back of his waist. He
then observed the armed person heading for the door. But as he passed by their table Baxinela stood up,
approached the man from behind and said "Why do you have a gun. I am a policeman." The man did not
reply and, instead, turned around and drew his gun. As the man was turning, Baxinela also drew his gun
and was able to fire first, hitting the man on his left arm. After the man fell on the floor, Baxinela grabbed
the other mans firearm and handed it over to Regimen. Regimen then requested one of the security
guards to transport the wounded man to the hospital. Regimen and Baxinela then proceeded to the Kalibo
Police Station while Legarda and Dalida went home.
Baxinela took the witness stand as the last witness for the defense.10 He testified that he and Regimen
were walking along Toting Reyes Street, looking for a tricycle to take them home, when they were met by
Manuba. Manuba reported to them that there was an armed person, drunk inside the Superstar Disco Pub
and creating trouble. They then proceeded to the pub to verify the report. Once there, they saw Legarda
occupying a table near the entrance with a companion named Toto Dalida. Legarda invited them to sit at
his table. As they were sitting down, Regimen whispered to him that there was a man with a gun tucked at
the back of his waist and told him to watch that person while he tries to look for a telephone to call the
Kalibo Police Station. As Regimen was about to stand, the armed man started to walk towards the
entrance. When he passed their table, Baxinela stood up, introduced himself as a policeman and asked
why he had a gun. The man did not respond but turned to face Baxinela, drawing his gun. Baxinela
immediately drew his firearm and beat him to the draw, hitting the man on his left arm. When the man fell
to the floor, Baxinela picked up the mans gun and handed it over to Regimen. Baxinela also took his wallet
for identification. Regimen then told one of the security guards to bring the wounded man to the hospital.
Thereafter, Baxinela and Regimen went to the Kalibo Police Station to report the incident and turned over
the wallet. Next, they proceeded to Camp Pastor Martelino and also reported the incident to Col. Bianson.
To rebut the claim of self-defense, the prosecution presented as its first witness, Abelardo
Alvarez.11 Alvarez was a security guard assigned to the Kingsmen building during the incident in question.
He testified that he was already acquainted with Baxinela and that he saw him, together with Legarda and
Regimen, already in the Superstar Disco Pub as early as 11:00 p.m. of October 18, 1996 drinking. At around
12:00 a.m. to 12:30 a.m. there was a minor altercation between the deceased Sgt. Lajo and another
customer at the pub but eventually the two were able to patch things up. Lajo was then on his way out
when Baxinela followed Lajo with a gun already drawn out. Then, from behind, Baxinela held Lajos left
arm and said "Ano ka hay? Mam-an may baril ka?"12 He then heard Lajo respond "I am a MIG, Pare" after
that Alvarez heard an explosion coming from Baxinelas gun. Baxinela then got a gun from Lajos waist and
handed it over to Regimen. Afterwards Baxinela held both of Lajos arms, who was still standing, and
pushed him against the wall and repeated his question. Lajo answered "Why did you shoot me? I am also a
military." At this point Lajo got out his wallet and gave it to Baxinela. Baxinela opened the wallet and
looked at an ID. Afterwards Baxinela and Regimen just left and did nothing to aid Lajo. Alvarez and his
fellow security guard, Rolando Gabriel, then picked up Lajo and boarded him on a tricycle. Gabriel brought
him to the hospital, while Alvarez remained at his post.
The second witness of the prosecution was Rolando Gabriel.13 Gabriel substantially corroborated the
testimony of Alvarez on what occurred on the night in question. He testified that he noticed the presence
of Lajo inside the pub at around 10:30 p.m. of October 18, 1996 while he first saw Baxinela, Regimen and
Legarda there as early as 11:00 p.m. At around 12:45 a.m., he witnessed Lajo going towards the entrance
of the pub where Baxinela was already standing and holding a .45 caliber pistol. Baxinela approached Lajo
from behind and held his left shoulder asking "Who are you?" Lajo responded "I am MIG." Afterwards he
was shot by Baxinela. Baxinela then got Lajos gun from his waist and gave it to Regimen. Thereafter,
Baxinela, with both hands, pushed Lajo against the wall and again asked "What are you?" Lajo got his
wallet from his back pocket and handed it over to Baxinela. After opening the wallet Baxinela and Regimen
left the disco pub. Lajo, still standing, took two steps and then fell down. Gabriel and Alvarez then picked
Lajo up and carried him to a tricycle which took him to the hospital. Gabriel also stated that ten minutes
before the shooting incident there was another incident where Lajo accosted some customer but
afterwards he saw that the two shook hands and embraced each other.
The third witness for the prosecution was Salvador Advincula, the PNP Desk Officer who entered in the
police blotter the incident that occurred in Superstar Disco Pub. He also testified on the events that
occurred inside the precinct wherein the gun of Lajo accidentally fell on the table and fired.
The last witness for the prosecution was the wife of Lajo, Janet O. Lajo, who testified as to damages.14
As a sur-rebuttal witness, the defense presented Ronald Nahil who testified that he was on the ground
floor of Kingsmen building with Alvarez and Gabriel when they heard a shot ring out from the second
floor.15
After receiving all of the evidence, the RTC found the version of the prosecution, that Baxinela shot Lajo as
the latter was turning around and without having drawn his gun, more convincing, and rendered a decision
convicting Baxinela. The RTC, however, considered in favor of Baxinela the mitigating circumstances of
voluntary surrender and provocation. The dispositive portion of the decision is as follows: 16
WHEREFORE, the court finds the accused SPO2 EDUARDO BAXINELA guilty beyond reasonable doubt of the
crime of Homicide, and considering the mitigating circumstances of voluntary surrender and provocation,
and applying the Indeterminate Sentence Law, he is hereby sentenced to suffer the penalty of
imprisonment of 4 years of prision correccional medium as minimum, to 8 years and 1 day of prision mayor
medium as maximum.
The accused is further ordered to pay a) the sum of P50,000.00 as civil indemnity for the death of Sgt.
Ruperto F. Lajo; b) then sum of P81,000.00 as actual and compensatory damages; and c) the sum
of P30,000.00 as moral damages; plus costs of suit.
SO ORDERED.
On appeal, the CA modified Baxinelas conviction by disallowing the mitigating circumstance of sufficient
provocation. Accordingly, the dispositive portion of the appellate courts decision reads as follows: 17
IN LIGHT OF ALL THE FOREGOING, the Decision appealed from finding the Appellant guilty beyond
reasonable doubt of the crime charged is AFFIRMED, with the MODIFICATION, that the Appellant is hereby
meted an indeterminate penalty of from EIGHT (8) YEARS and ONE (1) DAY OF Prision Mayor, as Minimum,
to TWELVE (12) YEARS, TEN (10) MONTHS and TWENTY ONE (21) DAYS of Reclusion Temporal, as
Maximum.
SO ORDERED.
Baxinela filed the present petition for review on certiorari citing the following grounds:
A. THAT THE COURT OF APPEALS AND THE REGIONAL TRIAL COURT ERRED IN GIVING CREDENCE TO THE
VERSION OF THE PROSECUTION.
B. THAT THE COURT OF APPEALS ERRED IN DENYING THE JUSTIFYING CIRCUMSTANCES OF SELF DEFENSE
OR IN THE ALTERNATIVE THE LAWFUL PERFORMANCE OF OFFICIAL DUTY UNDER ARTICLE 11 PARAGRAPHS
1 AND 5, RESPECTIVELY, OF THE REVISED PENAL CODE.
C. THAT THE COURT OF APPEALS AND REGIONAL TRIAL COURT ERRED IN CONVICTING THE ACCUSED.
D. THAT THE COURT OF APPEALS AND REGIONAL TRIAL COURT ERRED IN NOT CONSIDERING THE
QUALIFIED MITIGATING CIRCUMSTANCES IN FAVOR OF THE ACCUSED.
Resolution of the petition will entail an initial determination of which version of the incident will be
accepted. The defense alleges that Baxinela proceeded to the Superstar Disco Pub in response to the
information given by Manuba that there was an armed drunken man accosting several people inside the
pub. Once they arrived, they saw Lajo with a handgun visibly tucked behind his waist. When Baxinela
introduced himself as a policeman and asked why he had a handgun, Lajo suddenly drew on him
prompting Baxinela to pull out his gun and fire upon Lajo, critically wounding him. Thereafter, the defense
claims that Regimen ordered the security guards to bring Lajo to the hospital while they proceed to the
police station to report the incident.
The prosecution, on the other hand, contends that Baxinela was already in the pub drinking with Regimen
and Legarda for more than a couple of hours prior to the shooting incident. After witnessing an altercation
between Lajo and another customer, Baxinela decided to confront Lajo on why he had a gun with him.
Baxinela approached Lajo from behind and held the latter on the left shoulder with one hand while holding
on to his .45 caliber service firearm with the other. As Lajo was turning around, to see who was confronting
him, Baxinela shot him. Baxinela then got Lajos wallet and fled the scene with Regimen.
As mentioned, the RTC and CA accepted the prosecutions version. The Court finds no reason to disturb
such findings. Factual findings of the trial court, when adopted and confirmed by the CA, are final and
conclusive unless circumstances are present that would show that the lower courts have overlooked,
misunderstood or misconstrued cogent facts that may alter the outcome of the case. 18 It does not appear
that the conclusions that led to the conviction of Baxinela were arbitrarily reached by the lower courts and
Baxinela has failed to point out any relevant circumstance that would convince the Court that a reexamination of the facts is warranted. On the contrary, Baxinelas version is challenged by his own
contradicting testimony and other documentary evidence. Early in his testimony, Baxinela maintained that
Lajo had already pulled his handgun and was aiming at him when he fired:
Q. What else did you do after identifying yourself as a policeman and ask[ing] why he has a gun?
A. He did not respond.
Q. What else happened if anything happened?
A. He immediately drew his gun turning towards me and aimed it at me.19
Subsequently, when the trial court propounded clarificatory questions, Baxinelas new assertion was that
the firearm was still at the back of Lajo:
Q. At the moment that you fired, was he already able to dr[a]w his firearm or not yet?
A. Yes sir, already pulled out but still at the back.20
Furthermore, the follow-up investigation conducted by the police yielded a different picture of what
happened. This was entered into the police records as Entry No. 3359 and it reads in part: 21
x x x SPO2 Eduardo Baxinela accosted the victim why he ha[d] in his possession a firearm and when the
victim SGT Ruperto Lajo PA was about to get his wallet on his back pocket for his ID, SPO2 Eduardo
Baxinela anticipated that the victim was drawing his firearm on his waist prompting said policeman to
shoot the victim. x x x
The Court now proceeds to determine if, following the prosecutions version of what happened, Baxinela
can claim the justifying circumstances of self-defense and fulfillment of a duty or lawful exercise of a right
or office.
The requisites for self-defense are: 1) unlawful aggression on the part of the victim; 2) lack of sufficient
provocation on the part of the accused; and 3) employment of reasonable means to prevent and repel and
aggression.22 By invoking self-defense, Baxinela, in effect, admits killing Lajo, thus shifting upon him the
burden of the evidence on these elements.
The first requisite is an indispensable requirement of self-defense. It is a condition sine qua non, without
which there can be no self-defense, whether complete or incomplete.23 On this requisite alone, Baxinelas
defense fails. Unlawful aggression contemplates an actual, sudden and unexpected attack on the life and
limb of a person or an imminent danger thereof, and not merely a threatening or intimidating
attitude.24 The attack must be real, or at least imminent. Mere belief by a person of an impending attack
would not be sufficient. As the evidence shows, there was no imminent threat that necessitated shooting
Lajo at that moment. Just before Baxinela shot Lajo, the former was safely behind the victim and holding
his arm. It was Lajo who was at a disadvantage. In fact, it was Baxinela who was the aggressor when he
grabbed Lajos shoulder and started questioning him. And when Lajo was shot, it appears that he was just
turning around to face Baxinela and, quite possibly, reaching for his wallet. None of these acts could
conceivably be deemed as unlawful aggression on the part of Lajo.
Next, we consider the alternative defense of fulfillment of a duty. In order to avail of this justifying
circumstance it must be shown that: 1) the accused acted in the performance of a duty or in the lawful
exercise of a right or office; and 2) the injury caused or the offense committed is the necessary
consequence of the due performance of duty or the lawful exercise of a right or office. 25 While the first
condition is present, the second is clearly lacking. Baxinelas duty was to investigate the reason why Lajo
had a gun tucked behind his waist in a public place. This was what Baxinela was doing when he confronted
Lajo at the entrance, but perhaps through anxiety, edginess or the desire to take no chances, Baxinela
exceeded his duty by firing upon Lajo who was not at all resisting. The shooting of Lajo cannot be
considered due performance of a duty if at that time Lajo posed no serious threat or harm to Baxinela or to
the civilians in the pub.
Essentially, Baxinela is trying to convince the Court that he should be absolved of criminal liability by
reason of a mistake of fact, a doctrine first enunciated in United States v. Ah Chong.26 It was held in that
case that a mistake of fact will exempt a person from criminal liability so long as the alleged ignorance or
mistake of fact was not due to negligence or bad faith. In examining the circumstances attendant in the
present case, the Court finds that there was negligence on the part of Baxinela. Lajo, when he was shot,
was simply turning around to see who was accosting him. Moreover, he identified himself saying "I am
MIG." These circumstances alone would not lead a reasonable and prudent person to believe that
Baxinelas life was in peril. Thus, his act of shooting Lajo, to the mind of this Court, constitutes clear
negligence. But even if the Court assumes that Lajos actions were aggressive enough to appear that he
was going for his gun, there were a number of procedures that could have been followed in order to avoid
a confrontation and take control of the situation. Baxinela, whom the Court assumes not to be a rookie
policeman, could have taken precautionary measures by simply maintaining his hold on to Lajos shoulders,
keeping Lajo facing away from him, forcing Lajo to raise his hands and then take Lajos weapon. There was
also Regimen who should have assisted Baxinela in disabling and disarming Lajo. The events inside the
disco pub that unnecessarily cost the life of Lajo did not have to happen had Baxinela not been negligent in
performing his duty as a police officer.
The Court will, however, attribute to Baxinela the incomplete defense of fulfillment of a duty as a
privileged mitigating circumstance. In Lacanilao v. Court of Appeals,27 it was held that if the first condition
is fulfilled but the second is wanting, Article 69 of the Revised Penal Code is applicable so that the penalty
lower than one or two degrees than that prescribed by law shall be imposed. 28 Accordingly, the Court
grants in favor of Baxinela a privileged mitigating circumstance and lower his penalty by one degree. His
entitlement to the ordinary mitigating circumstance of voluntary surrender is also recognized, thereby
further reducing his penalty to its minimum.
The Court commiserates with our policemen who regularly thrust their lives in zones of danger in order to
maintain peace and order and acknowledges the apprehensions faced by their families whenever they go
on duty. But the use of unnecessary force or wanton violence is not justified when the fulfillment of their
duty as law enforcers can be effected otherwise. A "shoot first, think later" attitude can never be
countenanced in a civilized society.
WHEREFORE, the decision of the Court of Appeals is MODIFIED. The conviction of appellant Eduardo
Baxinela for the crime of homicide is AFFIRMED but his sentence is reduced to an indeterminate penalty of
four (4) years and two (2) months of prision correccional medium, as minimum, to eight (8) years of prision
mayor minimum, as maximum. The awards of damages are affirmed. No costs.
SO ORDERED.
11. Pomoy vs People

439
Pomoy vs. People
G.R. No. 150647. September 29, 2004.*
ROWENO POMOY, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
Criminal Law; Exempting Circumstances; Accident; Elements; The elements of accident are as follows: (1)
the accused was at the time performing a lawful act with due care; (2) the resulting injury was caused by
mere accident; and (3) on the part of the accused, there was no fault or no intent to cause the injury.The
elements of accident are as follows: 1) the accused was at the time performing a lawful act with due care;
2) the resulting injury was caused by mere accident; and 3) on the part of the accused, there was no fault
or no intent to cause the injury. From the facts, it is clear that all these elements were present. At the time
of the incident, petitioner was a memberspecifically, one of the investigatorsof the Philippine National
Police (PNP) stationed at the Iloilo Provincial Mobile Force Company. Thus, it was in the lawful
performance of his duties as investigating officer that, under the instructions of his superior, he fetched
the victim from the latters cell for a routine interrogation.
_______________
* THIRD DIVISION.
440
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Pomoy vs. People
Same; Same; The participation of petitioner, if any, in the victims death was limited only to acts
committed in the course of the lawful performance of his duties as an enforcer of the lawthe removal of
the gun from its holster, the release of the safety lock, and the firing of two successive shotsall of which
led to the death of the victimwere sufficiently demonstrated to have been consequences of
circumstances beyond the control of petitioner.The participation of petitioner, if any, in the victims
death was limited only to acts committed in the course of the lawful performance of his duties as an
enforcer of the law. The removal of the gun from its holster, the release of the safety lock, and the firing of
the two successive shotsall of which led to the death of the victimwere sufficiently demonstrated to
have been consequences of circumstances beyond the control of petitioner. At the very least, these factual
circumstances create serious doubt on the latters culpability.
Criminal Law; Self-defense Inconsistent with Accident; Self-defense is inconsistent with the exempting
circumstances of accident, in which there is intent to killon the other hand, self-defense necessarily
contemplates a premeditated intent to kill in order to defend oneself from imminent danger; Apparently,
the fatal shots did not occur out of any conscious or premeditated effort to overpower, maim, or kill the
victim for the purpose of self-defense against any aggression; rather, they appeared to be spontaneous
and accidental result of both parties attempts to possess the firearm.Self-defense is inconsistent with
the exempting circumstance of accident, in which there is no intent to kill. On the other hand, self-defense
necessarily contemplates a premeditated intent to kill in order to defend oneself from imminent danger.
Apparently, the fatal shots in the instant case did not occur out of any conscious or premeditated effort to
overpower, maim or kill the victim for the purpose of self-defense against any aggression; rather, they
appeared to be the spontaneous and accidental result of both parties attempts to possess the firearm.
Constitutional Law; Presumption of Innocence; Well-established is the principle that factual findings of the
trial court, when affirmed by the Court of Appeals, are binding on the highest court of the landhowever,
when facts are misinterpreted and the innocence of the accused depends on a proper appreciation of the
factual conclusions, the Supreme Court may conduct a review thereof.Well441

441
Pomoy vs. People
established is the principle that the factual findings of the trial court, when affirmed by the Court of
Appeals, are binding on the highest court of the land. However, when facts are misinterpreted and the
innocence of the accused depends on a proper appreciation of the factual conclusions, the Supreme Court
may conduct a review thereof. In the present case, a careful reexamination convinces this Court that an
accident caused the victims death. At the very least, the testimonies of the credible witnesses create a
reasonable doubt on appellants guilt. Hence, the Court must uphold the constitutional presumption of
innocence.
PETITION for review on certiorari of the decision and resolution of the Court of Appeals.

Ferdinand M. Negre for petitioner.
PANGANIBAN, J.:
Well-established is the principle that the factual findings of the trial court, when affirmed by the Court of
Appeals, are binding on the highest court of the land. However, when facts are misinterpreted and the
innocence of the accused depends on a proper appreciation of the factual conclusions, the Supreme Court
may conduct a review thereof. In the present case, a careful reexamination convinces this Court that an
accident caused the victims death. At the very least, the testimonies of the credible witnesses create a
reasonable doubt on appellants guilt. Hence, the Court must uphold the constitutional presumption of
innocence.
The Case
Before us is a Petition for Review1 under Rule 45 of the Rules of Court, seeking to set aside the February
28, 2001
_______________
1 Rollo, pp. 9-47.

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Pomoy vs. People
Decision2 and the October 30, 2001 Resolution3 of the Court of Appeals (CA) in CA-G.R. CR No. 18759. The
CA affirmed, with modifications, the March 8, 1995 judgment4 of the Regional Trial Court (RTC)5 of Iloilo
City (Branch 25) in Criminal Case No. 36921, finding Roweno Pomoy guilty of the crime of homicide. The
assailed CA Decision disposed as follows:
WHEREFORE, premises considered, MODIFIED as to penalty in the sense that the [Petitioner] ROWENO
POMOY is sentenced to suffer an indeterminate prison term of six (6) years, four (4) months and ten (10)
days of prision mayor minimum, as minimum, to fourteen (14) years eight (8) months and twenty (20) days
of reclusion temporal medium, as maximum, the decision appealed from is hereby AFFIRMED in all other
respects.6
The challenged CA Resolution denied petitioners Motion for Reconsideration.
Petitioner was charged in an Information worded thus:
That on or about the 4th day of January 1990, in the Municipality of Sara, Province of Iloilo, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, armed with his .45 service
pistol, with deliberate intent and decided purpose to kill, and without any justifiable cause or motive, did
then and there willfully, unlawfully and feloniously assault, attack and shoot one TOMAS BALBOA with the
service pistol he was then provided, inflicting upon the latter gunshot wounds on the vital parts of his
body, which directly caused the death of said victim thereafter.7
_______________
2 Id., pp. 49-68. Sixteenth Division. Penned by Justice B.A. Adefuin-de la Cruz (Division chair) and concurred
in by Justices Andres B. Reyes, Jr. and Rebecca de Guia-Salvador (members).
3 Id., p. 70.
4 CA Rollo, pp. 9-20.
5 Written by Judge Bartolome M. Fanual.
6 CA Rollo, p. 8.
7 Dated October 28, 1991; CA Rollo, p. 8.
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Pomoy vs. People
The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG) presented respondents version of the facts as follows:
Tomas Balboa was a master teacher of the Concepcion College of Science and Fisheries in Concepcion,
Iloilo.
On January 4, 1990, about 7:30 in the morning, some policemen arrived at the Concepcion College to
arrest Balboa, allegedly in connection with a robbery which took place in the municipality in December
1989. With the arrest effected, Balboa and the policemen passed by the Concepcion Elementary School
where his wife, Jessica, was in a get-together party with other School Administrators. When his wife asked
him, Why will you be arrested? [H]e answered [Even I] do not know why I am arrested. That is why I am
even going there in order to find out the reason for my arrest.
Balboa was taken to the Headquarters of the already defunct 321st Philippine Constabulary Company at
Camp Jalandoni, Sara, Iloilo. He was detained in the jail thereat, along with Edgar Samudio, another
suspect in the robbery case.
Later that day, about a little past 2 oclock in the afternoon, petitioner, who is a police sergeant, went
near the door of the jail where Balboa was detained and directed the latter to come out, purportedly for
tactical interrogation at the investigation room, as he told Balboa: Lets go to the investigation room. The
investigation room is at the main building of the compound where the jail is located. The jail guard on duty,
Nicostrado Estepar, opened the jail door and walked towards the investigation room.
At that time, petitioner had a gun, a .45 caliber pistol, tucked in a holster which was hanging by the side of
his belt. The gun was fully embedded in its holster, with only the handle of the gun protruding from the
holster.
When petitioner and Balboa reached the main building and were near the investigation room, two (2)
gunshots were heard. When the source of the shots was verified, petitioner was seen still holding a .45
caliber pistol, facing Balboa, who was lying in a pool of blood, about two (2) feet away. When the
Commanding Officer of the Headquarters arrived, he disarmed petitioner and directed that Balboa be
brought to the hospital. Dr. Palma (first name not pro444
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Pomoy vs. People
vided) happened to be at the crime scene as he was visiting his brother in the Philippine Constabulary.
When Dr. Palma examined Balboa, he (Dr. Palma) said that it was unnecessary to bring Balboa to the
hospital for he was dead.
Upon the request of Mrs. Jessica Balboa, the wife of the deceased, Dr. Ricardo Jabonete, the medico-legal
officer of the National Bureau of Investigation, Region VI, Iloilo City, conducted an autopsy on the remains
of Tomas Balboa. The following were his findings:
Pallor, integumens and nailbeds.
Wound, gunshot: (1) ENTRANCE, downwards and medially, edges, modified by sutures, surrounded by
abrasion collar, 0.6 cm. In its chest, left side, 10.0 cms. from anterior midline, 121.0 cms. From left heel,
directed medially backwards from left to right, penetrating chest wall thru 5th intercostals space into
thoracic cavity, perforating thru and thru, upper lobe, left lung, lacerating left ventricular wall causing
punched out fracture, 8th thoracic vertebra and make an EXIT, stallate in shape, 1.0 x 0.8 cm. Edges,
modified by sutures, back, right side, 8.0 cms. From posterior midline, 117.0 cms. From right heel (2)
ENTRANCE, ovaloid, oriented medially downwards, edges sutured, 0.7 cm. on its widest portion, at inferomedial border, hypochondriac region, left side, 4.0 cms. From anterior midline, 105.0 cms. From left heel,
directed backwards, laterally wall into penetrating abdominal cavity, perforating thru and thru, stomach,
head of the pancreas and mesentery, make an exit, ovalid, 1.0 x 0.8 cm., oriented medially upwards, edges,
sutured, back, left side, level of 9th intercostal space, 4.5 cms. From posterior midline, 110.0 cms. From left
heel. x x x.
CAUSE OF DEATH: Hemorrhage, massive secondary to gunshot wounds on chest and abdomen.
REMARKS: Body previously embalmed and autopsied.
Dr. Jaboneta testified that the two (2) wounds he found on x x x Balboas body were gunshot wounds. The
entrance of [W]ound No. 1 was to the left side of the chest about the left nipple and exited to the right
side of the back. Its trajectory was backwards then downwards from left to right. As to the possible
position of the assailant, Dr. Jaboneta opined that the nozzle of the gun was probably in front of the victim
and was more to the left side, and the gun must
445

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Pomoy vs. People
have been a little bit higher than the entrance wound. Wound No. 2 was located immediately below the
arch of the ribs, left side. Its direction was backwards and laterally upwards. Dr. Jaboneta estimated that
when it was inflicted, the assailant must have pointed the guns nozzle to the right side front of the victim.
The distance between the entrance points of wounds No. 1 and No. 2 was found to be about 16.0
centimeters.8
Version of the Defense
The Petition adopted the narration of facts in the assailed CA Decision, which in turn culled them from the
trial court. The RTC summarized the testimonies of Defense Witnesses Erna Basa, the lone eyewitness to
the incident; Eden Legaspi; Dr. Salvador Mallo Jr.; and petitioner himself, as follows:
Erna Basa:
x x x [O]n January 4, 1990, she was working in their office in the camp up to the afternoon; at about past 2
oclock that afternoon while working on the backlogs, she heard some noise and exchange of words which
were not clear, but it seemed there was growing trouble; she opened the door to verify and saw Roweno
Pomoy and Tomas Balboa grappling for the possession of the gun; she was inside the room and one meter
away from the door; Pomoy and Balboa while grappling were two to three meters away from the door; the
grappling happened so fast and the gun of Pomoy was suddenly pulled out from its holster and then there
was explosion; she was not certain who pulled the gun. x x x.
Eden Legaspi:
x x x [A]s early as 1:30 oclock in the afternoon of January 4, 1990 she was inside the investigation room of
the PC at Camp Jalandoni, Sara, Iloilo; at about 2 oclock that same afternoon while there inside, she heard
a commotion outside and she remained seated on the bench; when the commotion started they were
seated on the bench and after the commotion that woman soldier (referring to Erna Basa) stood up and
opened the door
_______________
8 Comment, pp. 2-7; Rollo, pp. 77-82. Citations omitted.

446
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Pomoy vs. People
and she saw two persons grappling for the possession of a gun and immediately two successive shots rang
out; she did not leave the place where she was seated but she just stood up; after the shots, one of the
two men fall down x x x.
Accused-petitioner Roweno Pomoy:
He is 30 years old and a PNP member of the Iloilo Provincial Mobile Force Company then attached to the
defunct 321st PC Company; he was one of the investigators of their outfit; about 2 oclock or past that time
of January 4, 1990 he got Tomas Balboa from their stockade for tactical interrogation; as he was already
holding the door knob of their investigation room and about to open and enter it, all of a sudden he saw
Tomas Balboa approach him and take hold or grab the handle of his gun; Tomas Balboa was a suspect in a
robbery case who was apprehended by the police of Concepcion and then turned over to them (PC) and
placed in their stockade; he asked the sergeant of the guard to let Balboa out of the stockade for
interrogation; from the stockade with Balboa walking with him, he had his .45 caliber pistol placed in his
holster attached to his belt on his waist; then as he was holding the doorknob with his right hand to open
the door, the victim, who was two meters away from him, suddenly approached him and grabbed his gun,
but all of a sudden he held the handle of his gun with his left hand; he released his right hand from the
doorknob and, with that right hand, he held the handle of his gun; Tomas Balboa was not able to take
actual hold of the gun because of his efforts in preventing him (Balboa) from holding the handle of his gun;
he used his left hand to parry the move of Balboa; after he held the handle of his gun with his right hand, in
a matter of seconds, he felt somebody was holding his right hand; he and Balboa grappled and in two or
three seconds the gun was drawn from its holster as both of them held the gun; more grappling followed
and five seconds after the gun was taken from its holster it fired, the victim was to his right side when the
attempt to grab his gun began and was still to his right when the gun was drawn from its holster until it
fired, as they were still grappling or wrestling; his gun was already loaded in its chamber and cocked when
he left his house, and it was locked when it fired; during the grappling he used his left hand to prevent
Balboa from holding his gun, while the victim used his
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Pomoy vs. People
right hand in trying to reach the gun; after the gun fired, they were separated from each other and Balboa
fell; he is taller than Balboa though the latter was bigger in build; he cannot say nor determine who of
them was stronger; after Balboa fell, Sgt. Alag shouted saying stop that and he saw Sgt. Alag approaching;
sometime after, Capt. Rolando Maclang, their commanding officer, came, got his gun, and said that the
case be investigated as to what really happened. He said that when his gun was put in its holster only its
handle protrudes or comes out from it.
Upon cross-examination, he said that Balboa was a suspect in a robbery case that happened during the
first week of December, 1989; he was the one who filed that case in the town of San Dionisio and that case
involves other persons who were also detained; before January 4, 1990 he had also the chance to invite
and interrogate Balboa but who denied any robbery case; x x x [I]t was after he took his lunch that day
when Capt. Maclang called him to conduct the interrogation; when he took Balboa from the stockade he
did not tell him that he (Balboa) was to be investigated in the investigation room which was housed in the
main building which is fifty meters, more or less, from the stockade, likewise houses the administrative
office, the office of the commanding officer, officer of the operations division and that of the signal
division; his gun was in its holster when the victim tried to grab it (gun); from the time he sensed that the
victim tried to grab his gun, he locked the victim; the hand of the victim was on top of his hand and he felt
the victim was attempting to get his gun; that the entire handle of his gun was exposed when placed inside
its holster; he cannot tell whether the victim, while struggling with him, was able to hold any portion of his
gun from the tip of its barrel to the point where its hammer is located; during the incident his gun was fully
loaded and cocked; Sgt. Alag did not approach, but just viewed them and probably reported the incident to
their commanding officer; he was not able to talk to Sgt. Alag as he (Pomoy) was not in his right sense;
when his commanding officer came some five to ten minutes later and took away his gun he did not tell
him anything.
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Pomoy vs. People
Dr. Salvador Mallo, Jr.
He is the Rural Health Physician of Sara who conducted the autopsy on the cadaver of Tomas Balboa that
afternoon of January 4, 1990; in his autopsy findings respecting which he made an autopsy report he said
he found two entrance wounds on the victim, the first on the left chest with trajectory medially downward,
while the second one is on the left side of the stomach with trajectory somewhat going upward; at the
same time of his examination he saw this victim to be wearing a light-colored T-shirt and a jacket; other
than the T-shirt worn by the victim, he did not see or find any powder burns and marks and that those
dotted marks in the T-shirt were believed by him to be powder burns as they look like one; he also found a
deformed slug in the pocket of the jacket of the victim.9
Ruling of the Court of Appeals
The CA anchored its Decision on the following factual findings: 1) the victim was not successful in his
attempts to grab the gun, since petitioner had been in control of the weapon when the shots were fired; 2)
the gun had been locked prior to the alleged grabbing incident and immediately before it went off; it was
petitioner who released the safety lock before he deliberately fired the fatal shots; and 3) the location of
the wounds found on the body of the deceased did not support the assertion of petitioner that there had
been a grappling for the gun.
To the appellate court, all the foregoing facts discredited the claim of petitioner that the death of Balboa
resulted from an accident. Citing People v. Reyes,10 the CA maintained that a revolver is not prone to
accidental firing if it were simply handed over to the deceased as appellant claims because of the nature of
its mechanism, unless it was already first cocked and pressure was exerted on the trigger in the process
_______________
9 Petition, pp. 5-11; Rollo, pp. 13-19. Citations omitted.

10 69 SCRA 474, 479, February 27, 1976.
449

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Pomoy vs. People
of allegedly handing it over. If it were uncocked, then considerable pressure had to be applied on the
trigger to fire the revolver. Either way, the shooting of the deceased must have been intentional because
pressure on the trigger was necessary to make the gun fire.11
Moreover, the appellate court obviously concurred with this observation of the OSG:
[Petitioners] theory of accident would have been easier to believe had the victim been shot only once. In
this case, however, [petitioner] shot the victim not only once but twice, thereby establishing [petitioners]
determined effort to kill the victim. By any stretch of the imagination, even assuming without admitting
that the first shot was accidental, then it should not have been followed by another shot on another vital
part of the body. The fact that [petitioner] shot the victim two (2) times and was hit on two different and
distant parts of the body, inflicted from two different locations or angles, means that there was an intent
to cause the victims death, contrary to [petitioners] pretensions of the alleged accidental firing. It is an
oft-repeated principle that the location, number and gravity of the wounds inflicted on the victim have a
more revealing tale of what actually happened during the incident. x x x.12
Furthermore, the CA debunked the alternative plea of self-defense. It held that petitioner had miserably
failed to prove the attendance of unlawful aggression, an indispensable element of this justifying
circumstance.
While substantially affirming the factual findings of the RTC, the CA disagreed with the conclusion of the
trial court that the aggravating circumstance of abuse of public position had attended the commission of
the crime. Accordingly, the penalty imposed by the RTC was modified by the appellate court in this
manner:
_______________
11 CA Decision, p. 16; Rollo, p. 64.

12 Id., pp. 17 and 65. Italics supplied.
450
450
Pomoy vs. People
x x x [F]or public position to be appreciated as an aggravating circumstance, the public official must use
his influence, prestige and ascendancy which his office gives him in realizing his purpose. If the accused
could have perpetrated the crime without occupying his position, then there is no abuse of public
position. (People vs. Joyno, 304 SCRA 655, 670). In the instant case, there is no showing that the
[petitioner] had a premeditated plan to kill the victim when the former fetched the latter from the
stockade, thus, it cannot be concluded that the public position of the [petitioner] facilitated the
commission of the crime. Therefore, the trial courts finding that the said aggravating circumstance that
[petitioner] took advantage of his public position to commit the crime cannot be sustained. Hence, there
being no aggravating and no mitigating circumstance proved, the maximum of the penalty shall be taken
from the medium period of reclusion temporal, a penalty imposable for the crime of homicide. x x x.13
Hence, this Petition.14
Issues
In his Memorandum, petitioner submitted the following issues for the Courts consideration:
I. The Court of Appeals committed serious and reversible error in affirming petitioners conviction despite
the insufficiency of the prosecutions evidence to convict the petitioner, in contrast to petitioners
overwhelming evidence to support his theory/defense of accident.
II. The Court of Appeals committed grave and reversible error in affirming the conviction of the petitioner
on a manifestly mistaken inference that when the gun fired, the petitioner was in
_______________

14 This case was deemed submitted for decision on January 13, 2003, upon this Courts receipt of
respondents Memorandum, signed by Assistant Solicitor General Josefina C. Castillo and Associate
Solicitor Josephine D. Arias. Petitioners Memorandum, signed by Atty. Ferdinand M. Negre and Atty. Karen
O. Amurao-Dalangin, was filed on October 1, 2002.
451

451
Pomoy vs. People
full control of the handle of the gun, because what the testimonies of disinterested witnesses and the
petitioner reveal was that the gun fired while petitioner and Balboa were both holding the gun in forceful
efforts to wrest the gun from each other.
III. The Court of Appeals gravely erred in affirming the solicitor generals observation that the fact that
petitioner shot the victim twice establishes petitioners determined effort to kill the victim.
IV. The appellate court committed serious misapprehension of the evidence presented when it ruled that
the trajectory of the wounds was front-to-back belying the allegation of petitioner that he and the victim
were side-by-side each other when the grappling ensued.
V. The Court of Appeals failed to discern the real import of petitioners reaction to the incident when it
stated that the dumbfounded reaction of petitioner after the incident strongly argues against his claim of
accidental shooting.
VI. The appellate court committed grave error when it disregarded motive or lack of it in determining the
existence of voluntariness and intent on the part of petitioner to shoot at the victim when the same was
put in serious doubt by the evidence presented.
VII. The Court of Appeals was mistaken in ruling that the defense of accident and self-defense are
inconsistent.
VIII. The Court of Appeals obviously erred in the imposition of the penalties and damages.15
In sum, the foregoing issues can be narrowed down to two: First, whether the shooting of Tomas Balboa
was the result of an accident; and second, whether petitioner was able to prove self-defense.
_______________
15 Petitioners Memorandum, pp. 15-16; Rollo, pp. 126-127. Original in upper case.
452

452
Pomoy vs. People
The Courts Ruling
The Petition is meritorious.
First Issue:
Accidental Shooting
Timeless is the legal adage that the factual findings of the trial court, when affirmed by the appellate court,
are conclusive.16 Both courts possess time-honored expertise in the field of fact finding. But where some
facts are misinterpreted or some details overlooked, the Supreme Court may overturn the erroneous
conclusions drawn by the courts a quo. Where, as in this case, the facts in dispute are crucial to the
question of innocence or guilt of the accused, a careful factual reexamination is imperative.
Accident is an exempting circumstance under Article 12 of the Revised Penal Code:
Article 12. Circumstances which exempt from criminal liability.The following are exempt from criminal
liability:
xxx
xxx
xxx
4. Any person who, while performing a lawful act with due care, causes an injury by mere accident without
fault or intent of causing it.
Exemption from criminal liability proceeds from a finding that the harm to the victim was not due to the
fault or negligence of the accused, but to circumstances that could not have been foreseen or
controlled.17 Thus, in determining whether
_______________
16 Borromeo v. Sun, 375 Phil. 595; 317 SCRA 176, October 22, 1999.
17 People v. Cariquez, 373 Phil. 877; 315 SCRA 247, September 27, 1999. To determine accident, the
following three elements must concur: 1) the accused is performing a lawful act with due care; 2) the
resulting injury is caused by mere accident; and 3) on the part of the accused, there is no fault or intent to
cause the injury.
453

453
Pomoy vs. People
an accident attended the incident, courts must take into account the dual standards of lack of intent to
kill and absence of fault or negligence. This determination inevitably brings to the fore the main question in
the present case: was petitioner in control of the .45 caliber pistol at the very moment the shots were
fired?
Petitioner Not in Control of the Gun When It Fired
The records show that, other than petitioner himself, it was Erna Basa who witnessed the incident
firsthand. Her account, narrated during cross-examination, detailed the events of that fateful afternoon of
January 4, 1990 as follows:
ATTY. TEODOSIO:
Q.
You said that while you were inside the investigation room you heard a commotion. That commotion
which you heard, did you hear any shouting as part of that commot ion which you heard?
A.
Moderately there was shouting and their dialogue was not clear. It could not be understood.
Q.
Did you hear any voices as part of that commotion?
A.
No, sir.
Q.
From the time you entered the investigation room you did not hear any voice while you were inside the
investigation room as part of that commotion?
A.
There was no loud voice and their conversation could not be clarified. They were talking somewhat like
murmuring or in a low voice but there was a sort of trouble in their talks.
COURT:
Q.
Was there a sort of an exchange of words in their conversation?
A.
Yes, sir.
xxx
xxx
xxx
Q.
When you opened the door, you saw Sgt. Pomoy and Mr. Balboa the deceased in this case? Am I correct?
454
454
Pomoy vs. People
A.
Yes, sir.
Q.
And when you saw Sgt. Pomoy was he holding a gun?
A.
Not yet, the gun was still here. (Witness illustrating by pointing to her side) and I saw both of them
grappling for that gun.
Q.
Where was the gun at that time?
A.
The gun was in its holster. (Witness illustrating by pointing to [her] side.)
Q.
When you demonstrated you were according to you saw the hands holding the gun. It was Sgt. Pomoy who
was holding the gun with his right hand?
A.
I saw two hands on the handle of the gun in its holster, the hand of Sir Balboa and Sgt. Pomoy.
COURT:
Q.
At that precise moment the gun was still in its holster?
A.
When I took a look the gun was still in its holster with both hands grappling for the possession of the gun.
Q.
How many hands did you see?
A.
Two.
Q.
One hand of Sgt. Pomoy and one hand is that of the victim?
A.
Yes, sir.
COURT:
Proceed.
ATTY TEODOSIO:
Q.
Which hand of Sgt. Pomoy did you see holding the gun?
A.
Right hand of Sgt. Pomoy.
Q.
And when you see that right hand of Sgt. Pomoy, was it holding the gun?
A.
The right hand of Sgt. Pomoy was here on the gun and Sir Balboas hand was also there. Both of them were
holding the gun.
Q.
Which part of the gun was the right hand of Sgt. Pomoy holding?
A.
The handle.
455

455
Pomoy vs. People
Q.
And was he facing Tomas Balboa when he was holding the gun with his right hand?
A.
At first they were not directly facing each other.
Q.
So later, they were facing each other?
A.
They were not directly facing each other. Their position did not remain steady as they were grappling for
the possession of the gun force against force.
COURT:
Q.
What was the position of the victim when the shots were fired?
A.
When I saw them they were already facing each other.
Q.
What was the distance?
A.
Very close to each other.
Q.
How close?
A.
Very near each other.
Q.
Could it be a distance of within one (1) foot?
A.
Not exactly. They were close to each other in such a manner that their bodies would touch each other.
Q.
So the distance is less than one (1) foot when the gun fired?
A.
One (1) foot or less when the explosions were heard.
Q.
And they were directly facing each other?
A.
Yes, sir.
COURT:
Proceed.
Q.
Were you able to see how the gun was taken out from its holster?
A.
While they were grappling for the possession of the gun, gradually the gun was released from its holster
and then there was an explosion.
Q.
And when the gun fired the gun was on Tomas Balboa?
A.
I could not see towards whom the nozzle of the gun was when it fired because they were grappling for the
possession of the gun.
Q.
Did you see when the gun fired when they were grappling for its possession?
456
456
Pomoy vs. People
A.
Yes sir, I actually saw the explosion. It came from that very gun.
Q.
Did you see the gun fired when it fired for two times?
A.
Yes, sir.
Q.
Did you see the barrel of the gun when the gun fired?
A.
I could not really conclude towards whom the barrel of the gun was pointed to because the gun was
turning.
xxxxxxxxx
Q.
Could you tell the court who was holding the gun when the gun fired?
A.
When the gun exploded, the gun was already in the possession of Sgt. Pomoy. He was the one holding the
gun.
Q.
After the gun went off, you saw the gun was already in the hand of Sgt. Pomoy?
A.
Yes, sir.
Q.
How soon after the gun went off when you saw the gun in the hand of Sgt. Pomoy?
A.
After Balboa had fallen and after they had separated themselves with each other, it was then that I saw
Sgt. Pomoy holding the gun.
COURT:
Proceed.
ATTY. TEODOSIO:
Q.
When the gun was taken out from its holster, Sgt. Pomoy was the one holding the handle of the gun? Am I
correct?
A.
Both of them were holding the handle of the gun.
Q.
So when the gun was still in its holster, two of them were holding the gun?
A.
Yes sir, they were actually holding the gun, Sgt. Pomoy and Sir Balboa.
Q.
It was the right hand of Sgt. Pomoy who was holding the handle of the gun as you testified?
A.
Yes, sir.
457

457
Pomoy vs. People
Q.
Which hand of Balboa was holding the handle of the gun?
A.
Left hand.
Q.
At the time Balboa was holding the handle of the gun with his left hand, was he in front of Sgt. Pomoy?
A.
They had a sort of having their sides towards each other. Pomoys right and Balboas left sides [were]
towards each other. They were side by side at a closer distance towardseach other.
xxx
xxx
xxx
Q.
It was actually Sgt. Pomoy who was holding the handle of the gun during that time?
A.
When I looked out it was when they were grappling for the possession of the gun and the right hand of Sgt.
Pomoy was holding the handle of the gun.
Q.
When you saw them did you see what position of the handle of the gun was being held by Tomas Balboa?
The rear portion of the handle of the gun or the portion near the trigger?
A.
When I looked at them it was the hand of Sgt. Pomoy holding the handle of the gun with his right hand
with the hand of Sir Balboa over the hand of Pomoy, the same hand holding the gun.
Q.
It was in that position when the gun was removed from its holster?
A.
When the gun pulled out from its holster, I was not able to notice clearly anymore whose hand was holding
the gun when I saw both their hands were holding the gun.
Q.
When you said this in [the] vernacular, Daw duha na sila nagakapot, what you really mean?
A.
Both of them were holding the gun.
Q.
But Sgt. Pomoy still holding the handle of the gun?
A.
Still both of them were holding the handle of the gun.
Q.
With the hand of Balboa still on the top of the hand of Sgt. Pomoy as what you have previously said when
the gun was in the holster of Sgt. Pomoy?
458
458
Pomoy vs. People
A.
When the gun was pulled from its holster, I saw that Sgt. Pomoys right hand was still on the handle of the
gun with the left hand of Sir Balboa over his right hand of Sgt. Pomoy, like this (witness illustrating by
showing his right hand with her left hand over her right hand as if holding something. The thumb of the left
hand is somewhat over the index finger of the right hand.)
COURT:
Which hand of the victim was used by him when the gun was already pulled out from its holster and while
the accused was holding the handle of the gun?
A.
Left hand.
Q.
So, he was still using the same left hand in holding a portion of the handle of the gun up to the time when
the gun was pulled out from its holster?
A.
Yes sir, the same left hand and that of Pomoy his right hand because the left hand of Pomoy was used by
him in parrying the right hand of Sir Balboa which is about to grab the handle of the gun.
COURT:
Q.
So in the process of grappling he was using his left hand in pushing the victim away from him?
A.
Yes, sir.
Q.
What about the right hand of the victim, what was he doing with his right hand?
A.
The victim was trying to reach the gun with his right hand and Pomoy was using his left hand to protect the
victim from reaching the gun with his right hand.
COURT:
Proceed.
ATTY. TEODOSIO:
Q.
Did you say a while ago that Mr. Balboa was able to hold the barrel of the gun of Sgt. Pomoy?
A.
Yes, sir.
459

459
Pomoy vs. People
Q.
And that was at the time before the shots were fired?
A.
Yes, he was able to hold the tip of the barrel of the gun using his right hand.
COURT:
Q.
That was before the gun fired?
A.
Yes, sir.18
The foregoing account demonstrates that petitioner did not have control of the gun during the scuffle. The
deceased persistently attempted to wrest the weapon from him, while he resolutely tried to thwart those
attempts. That the hands of both petitioner and the victim were all over the weapon was categorically
asserted by the eyewitness. In the course of grappling for the gun, both hands of petitioner were fully
engagedhis right hand was trying to maintain possession of the weapon, while his left was warding off
the victim. It would be difficult to imagine how, under such circumstances, petitioner would coolly and
effectively be able to release the safety lock of the gun and deliberately aim and fire it at the victim.
It would therefore appear that there was no firm factual basis for the following declaration of the appellate
court: [Petitioner] admitted that his right hand was holding the handle of the gun while the left hand of
the victim was over his right hand when the gun was fired. This declaration would safely lead us to the
conclusion that when the gun went off herein [petitioner] was in full control of the gun.19
Release of the Guns Safety Lock and Firing of the Gun Both Accidental
Petitioner testified that the .45 caliber service pistol was equipped with a safety lock that, unless released,
would prevent the firing of the gun. Despite this safety feature, how_______________
18 TSN, July 29, 1994, pp. 22-40. (Emphasis supplied)

19 CA Decision, pp. 16-17; Rollo, pp. 64-65.
460
460
Pomoy vs. People
ever, the evidence showed that the weapon fired and hit the victimnot just once, but twice. To the
appellate court, this fact could only mean that petitioner had deliberately unlocked the gun and shot at the
victim. This conclusion appears to be non sequitur.
It is undisputed that both petitioner and the victim grappled for possession of the gun. This frenzied
grappling for the weaponthough brief, having been finished in a matter of secondswas fierce and
vicious. The eyewitness account amply illustrated the logical conclusion that could not be dismissed: that in
the course of the scuffle, the safety lock could have been accidentally released and the shots accidentally
fired.
That there was not just one but two shots fired does not necessarily and conclusively negate the claim that
the shooting was accidental, as the same circumstance can easily be attributed to the mechanism of the
.45 caliber service gun. Petitioner, in his technical description of the weapon in question, explained how
the disputed second shot may have been brought about:
x x x Petitioner also testified on cross-examination that a caliber .45 semi-automatic pistol, when fired,
immediately slides backward throwing away the empty shell and returns immediately carrying again a live
bullet in its chamber. Thus, the gun can, as it did, fire in succession. Verily, the location of, and distance
between the wounds and the trajectories of the bullets jibe perfectly with the claim of the petitioner: the
trajectory of the first shot going downward from left to right thus pushing Balboas upper body, tilting it to
the left while Balboa was still clutching petitioners hand over the gun; the second shot hitting him in the
stomach with the bullet going upward of Balboas body as he was falling down and releasing his hold on
petitioners hand x x x.20
_______________
20 Petition, pp. 25-26; Rollo, pp. 33-34.

461

461
Pomoy vs. People
Thus, the appellate courts reliance on People v. Reyes21was misplaced. In that case, the Court disbelieved
the accused who described how his gun had exploded while he was simply handing it over to the victim.
Here, no similar claim is being made; petitioner has consistently maintained that the gun accidentally fired
in the course of his struggle with the victim. More significantly, the present case involves a semi-automatic
pistol, the mechanism of which is very different from that of a revolver, the gun used in Reyes.22 Unlike a
revolver, a semi-automatic pistol, as sufficiently described by petitioner, is prone to accidental firing when
possession thereof becomes the object of a struggle.
Alleged Grappling Not Negated by Frontal Location of Wounds
On the basis of the findings of Dr. Jaboneta showing that the wounds of the deceased were all frontal, the
appellate court rejected petitioners claim that a grappling for the weapon ever occurred. It held that if
there was indeed a grappling between the two, and that they had been side [by] side x x x each other, the
wounds thus inflicted could not have had a front-to-back trajectory which would lead to an inference that
the victim was shot frontally, as observed by Dr. Jaboneta.23
Ordinarily, the location of gunshot wounds is indicative of the positions of the parties at the precise
moment when the gun was fired. Their positions would in turn be relevant to a determination of the
existence of variables such as treachery, aggression and so on.
In the factual context of the present case, however, the location of the wounds becomes inconsequential.
Where, as in
_______________
21 Supra. See 161 Phil. 611, 617; 69 SCRA 474, February 27, 1976, per curiam.
22 Supra.
462
462
Pomoy vs. People
this case, both the victim and the accused were grappling for possession of a gun, the direction of its nozzle
may continuously change in the process, such that the trajectory of the bullet when the weapon fires
becomes unpredictable and erratic. In this case, the eyewitness account of that aspect of the tragic scuffle
shows that the parties positions were unsteady, and that the nozzle of the gun was neither definitely
aimed nor pointed at any particular target. We quote the eyewitness testimony as follows:
Q.
And when the gun fired the gun was on Tomas Balboa?
A.
I could not see towards whom the nozzle of the gun was when it fired because they were grappling for the
possession of the gun.
xxx
Q.
xxx
xxx
Did you see the barrel of the gun when the gun fired?
A.
I could not really conclude towards whom the barrel of the gun was pointed to because the gun was
turning.24
xxx
xxx
xxx
Q
And was he facing Tomas Balboa when he was holding the gun with his right hand?
A
At first, they were not directly facing each other.
Q
So later, they were facing each other?
A
They were not directly facing each other. Their position did not remain steady as they were grappling for
the possession of the gun force against force.25
In his Petition, this explanation is given by petitioner:
x x x. The Court of Appeals erred in concluding that Balboa was shot frontally. First, because the position
of the gun does not necessarily indicate the position of the person or persons holding the gun when it
fired. This is especially true when two persons were
_______________

25 Id., p. 28. Italics and boldface supplied.
463

463
Pomoy vs. People
grappling for the possession of the gun when it fired, as what exactly transpired in this case. x x x.
[The] testimony clearly demonstrates that the petitioner was on the left side of the victim during the
grappling when the gun fired. The second wound was thus inflicted this wise: when the first shot hit
Balboa, his upper body was pushed downward owing to the knocking power of the caliber .45 pistol. But
he did not let go of his grip of the hand of petitioner and the gun, Balboa pulling the gun down as he was
going down. When the gun went off the second time hitting Balboa, the trajectory of the bullet in Balboas
body was going upward because his upper body was pushed downward twisting to the left. It was then
that Balboa let go of his grip. On cross-examination, petitioner testified, what I noticed was that after
successive shots we separated from each other. This sequence of events is logical because the protagonists
were grappling over the gun and were moving very fast. x x x. 26
Presence of All the Elements of Accident
The elements of accident are as follows: 1) the accused was at the time performing a lawful act with due
care; 2) the resulting injury was caused by mere accident; and 3) on the part of the accused, there was no
fault or no intent to cause the injury.27 From the facts, it is clear that all these elements were present. At
the time of the incident, petitioner was a memberspecifically, one of the investigatorsof the Philippine
National Police (PNP) stationed at the Iloilo Provincial Mobile Force Company. Thus, it was in the lawful
performance of his duties as investigating officer that, under the instructions of his superior, he fetched
the victim from the latters cell for a routine interrogation.
Again, it was in the lawful performance of his duty as a law enforcer that petitioner tried to defend his
possession of the weapon when the victim suddenly tried to remove it from his
_______________
26 Petition, pp. 27-28; Rollo, pp. 35-36. Boldface in the original.

27 People v. Cariquez, supra.
464
464
Pomoy vs. People
holster. As an enforcer of the law, petitioner was duty-bound to prevent the snatching of his service
weapon by anyone, especially by a detained person in his custody. Such weapon was likely to be used to
facilitate escape and to kill or maim persons in the vicinity, including petitioner himself.
Petitioner cannot be faulted for negligence. He exercised all the necessary precautions to prevent his
service weapon from causing accidental harm to others. As he so assiduously maintained, he had kept his
service gun locked when he left his house; he kept it inside its holster at all times, especially within the
premises of his working area.
At no instance during his testimony did the accused admit to any intent to cause injury to the deceased,
much less kill him. Furthermore, Nicostrato Estepar, the guard in charge of the detention of Balboa, did not
testify to any behavior on the part of petitioner that would indicate the intent to harm the victim while
being fetched from the detention cell.
The participation of petitioner, if any, in the victims death was limited only to acts committed in the
course of the lawful performance of his duties as an enforcer of the law. The removal of the gun from its
holster, the release of the safety lock, and the firing of the two successive shotsall of which led to the
death of the victimwere sufficiently demonstrated to have been consequences of circumstances beyond
the control of petitioner. At the very least, these factual circumstances create serious doubt on the latters
culpability.
Petitioners Subsequent Conduct Not Conclusive of Guilt
To both the trial and the appellate courts, the conduct of petitioner immediately after the incident was
indicative of remorse. Allegedly, his guilt was evident from the fact that he was dumbfounded, according
to the CA; was mum, pale and trembling, according to the trial court. These behavioral reactions
supposedly point to his guilt. Not necessarily so. His behavior was understandable. After all, a minute
earlier he
465

465
Pomoy vs. People
had been calmly escorting a person from the detention cell to the investigating room; and, in the next
breath, he was looking at his companions bloodied body. His reaction was to be expected of one in a state
of shock at events that had transpired so swiftly and ended so regrettably.
Second Issue:
Self-Defense
Petitioner advanced self-defense as an alternative. Granting arguendo that he intentionally shot Balboa, he
claims he did so to protect his life and limb from real and immediate danger.
Self-defense is inconsistent with the exempting circumstance of accident, in which there is no intent to kill.
On the other hand, self-defense necessarily contemplates a premeditated intent to kill in order to defend
oneself from imminent danger.28 Apparently, the fatal shots in the instant case did
_______________
28 In the assailed Decision, the appellate courtwhile acknowledging the innate differences between
accident and self-defense, the former presupposing the lack of intention to inflict harm and the latter
assuming voluntariness induced by necessitynevertheless submits that the standards to be used in

determining whether the elements of one or the other are extant are one and the same.
The Court disagrees. It is apparent from their varying definitions under the Revised Penal Code that
accident and self-defense are two different circumstances. Accident, as an exempting circumstance,
presupposes that while a crime may have been committed, no criminal is to be held liable. Section 4 of
Article 12 describes accident as an exempting circumstance as follows:
Article 12. Circumstances which are exempt from criminal liability.The following are exempt from
criminal liability:
xxx
xxx
xxx
(4) Any person who, while performing a lawful act with due care, causes an injury by mere accident
without fault or intent of causing it.
466
466
Pomoy vs. People
not occur out of any conscious or premeditated effort to overpower, maim or kill the victim for the
purpose of self-defense against any aggression; rather, they appeared to be the spontaneous and
accidental result of both parties attempts to possess the firearm.
Since the death of the victim was the result of an accidental firing of the service gun of petitioneran
exempting circumstance as defined in Article 12 of the Revised Penal Codea further discussion of
whether the assailed acts of the latter constituted lawful self-defense is unnecessary.
WHEREFORE, the Petition is GRANTED and the assailed Decision REVERSED. Petitioner is ACQUITTED.
No costs.
_______________
xxx
xxx
xxx
On the other hand, the justifying circumstance of self-defense presupposes that no crime has been
committed for which a criminal can be held liable. It is apparent, from a reading of Section 3 of Article 11,
that the law treats the justifying circumstance of self-defense as a totally different circumstance with
another set of elements, as follows:
Article 11. Justifying circumstances.The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights provided that the following circumstances concur:

xxx
xxx
xxx
With their differing elements, one cannot, as the appellate court erroneously did, utilize the standards
used in proving self-defense to prove whether or not under the same facts, accident is extant.
467

467
University of the Philippines vs. Philab Industries, Inc.
SO ORDERED.
Sandoval-Gutierrez, Corona and Carpio-Morales, JJ., concur.
Petition granted, assailed decision reversed. Petitioner acquitted.
Notes.Accident to be an exempting circumstance presupposes that the act done is lawful. (People vs.
Nepomuceno, Jr., 298 SCRA 450 [1998])
Having claimed that the shooting was accidental, petitioner must prove the same by clear and convincing
evidence. However, the burden of proving the commission of the crime remained with the prosecution.
(People vs. Court of Appeals, 352 SCRA 599 [2001])
o0o
12. Angcaco vs People

297
Angcaco vs. People
G.R. No. 146664. February 28, 2002.*
JOHN ANGCACO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
Criminal Law; Murder; Evidence; Affidavits; Affidavits are generally inferior to testimonies in court.
Generally, contradictions between the contents of the witness affidavit and his testimony in court do not
impair his credibility because affidavits are usually taken ex parte and, for that reason, often incomplete
and inaccurate. An affidavit will not always disclose all the facts and will even at times, without being
noticed by the witness, inaccurately describe the occurrences related therein. Thus, we have time and
again held that affidavits are generally inferior to testimonies in court. Affidavits are often prepared only
by the investigator without the affiant or witness having a fair opportunity to narrate in full the incident
which took place, whereas in open court, the latter is subjected to cross-examination by counsel for the
accused.
Same; Same; Same; Same; Witnesses; Where the discrepancies between the affidavit and the witness
testimony on the stand are irreconcilable and unexplained and they refer to material issues, such
inconsistencies may well reflect on the witness candor and even honesty and thus impair his credibility.
However, where the discrepancies between the affidavit and the witness testimony on the stand are
irreconcilable and unexplained and they refer to material issues, such inconsistencies may well reflect on
the witness candor and even honesty and thus impair his credibility. Hence, we have recognized as
exceptions to the general rule instances where the narration in the sworn statement substantially contra______________
* SECOND DIVISION.
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Angcaco vs. People
dicts the testimony in court or where the omission in the affidavit refers to a substantial detail which an
eyewitness, had he been present at the scene at the time of the commission of the crime, could not have
failed to mention.
Same; Same; Same; The constitutional presumption of innocence demands not only that the prosecution
prove that a crime has been committed but, more importantly, the identity of the person or persons who
committed the crime.We are thus left with no clear picture of the events that transpired on September
25, 1980 and of the identity of the shooter or shooters. It cannot be overemphasized that the
constitutional presumption of innocence demands not only that the prosecution prove that a crime has
been committed but, more importantly, the identity of the person or persons who committed the crime.
Same; Same; Same; The rule is that while the prosecution has the burden of establishing the guilt of the
accused, once the defendant admits commission of the act charged, although he invokes a justification for
its commission, the burden of proof is shifted to him to prove the said justifying circumstance.The
conviction of petitioner Angcaco must, however, be upheld in view of his admission that he shot Freddie
Ganancial. The rule is that while the prosecution has the burden of establishing the guilt of the accused,
once the defendant admits commission of the act charged, although he invokes a justification for its
commission, the burden of proof is shifted to him to prove the said justifying circumstance. Petitioner
Angcaco cannot rely on the weakness of the evidence for the prosecution, for even if it is weak, it cannot
be disbelieved after he has admitted the killing itself.
Same; Same; Same; Self-Defense; Elements for petitioner to successfully claim the benefit of Art. 11, par. 3
of the Revised Penal Code.For petitioner to successfully claim the benefit of Art. 11, par. 3 of the Revised
Penal Code, there must be proof of the following elements: (1) unlawful aggression; (2) reasonable
necessity of the means employed to prevent or repel it; and (3) the person defending be not induced by
revenge, resentment, or other evil motive.
Same; Same; Same; Fulfillment of Lawful Duty; Requisites for this justifying circumstance to be
appreciated.For this justifying circumstance to be appreciated, the following must be established: (a)
that the offender acted in the lawful exercise of a right or a duty; and (b) that the injury or offense
committed be the necessary consequence of the due performance of such right or office.
299

299
Angcaco vs. People
Same; Same; Same; Qualifying Circumstances; Treachery; Two conditions for treachery to exist.There is
treachery when the offender commits any of the crimes against the person, employing means, methods, or
forms in the execution thereof which tend directly and specially to insure its execution, without risk to
himself arising from the defense which the offended party might take. For treachery to exist, two
conditions must be present: (1) there must be employment of means of execution that gives the person
attacked no opportunity to defend himself or to retaliate; and (2) the means of execution were
deliberately or consciously adopted.
Same; Same; Same; Same; Evident Premeditation; Elements for evident premeditation to be
appreciated.Evident premeditation requires proof of the following elements: (1) the time when the
accused decided to commit the crime; (2) an overt act manifestly indicating that he has clung to his
determination; and (3) a sufficient lapse of time between decision and execution to allow the accused to
reflect upon the consequences of his act.
PETITION for review on certiorari of a decision of the Court of Appeals.

Campanilla Law Office for petitioner.
MENDOZA, J.:
This is a petition for review on certiorari of the decision,1 dated November 29, 2000, of the Court of
Appeals, which affirmed with modification the decision,2 dated January 31, 1996, of the Regional Trial
Court, Branch 1, Puerto Princesa City, finding petitioner John Angcaco guilty of murder and sentencing him
accordingly.
Petitioner John Angcaco and his co-accused in the trial court, namely, Ramon Decosto, Protacio Edep, Lydio
Lota, and Mario Felizarte, were members of the Integrated National Police of Tay______________
1 Per Justice Bienvenido L. Reyes and concurred in by Justices Ramon A. Barcelona and Rodrigo V. Cosico.
2 Judge Amor A. Reyes tried the case, but the decision was written by Assisting Judge Romulo T. Arellano,
pursuant to Supreme Court Adm. Order 153-94, as amended.
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Angcaco vs. People
tay, Palawan. At the time of the incident, they were serving a warrant of arrest issued by the Municipal
Trial Court of Taytay on Restituto Bergante, who was wanted in connection with a robbery case. Edep was
acting station commander, while Restituto Bergante was the barangay captain of Bato, Taytay, Palawan.
The information against petitioner and his co-accused alleged
That on or about the 25th day of September, 1980, more or less 4:00 oclock in the morning in barangay
Bato, municipality of Taytay, province of Palawan, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring and confederating together and mutually helping one
another, armed with guns, and with treachery and evident premeditation and with intent to kill, did then
and there willfully, unlawfully and feloniously attack, assault, fire at and shoot FREDDIE GANANCIAL, hitting
the latter with gunshots on vital parts of his body and inflicting upon him multiple gunshot wounds which
were the direct and immediate cause of his instant death.3
When arraigned on June 3, 1981, all of the accused, with the exception of Ramon Decosto, entered a plea
of not guilty to the crime charged.4 Decosto, who failed to attend the hearing on that date, was later
arraigned on June 23, 1981, during which he entered a plea of not guilty. Thereafter trial ensued.
The prosecution presented seven witnesses: Noe Bergante,5 Noel Bergante, Dr. Alberto Lim, Honorato
Flores, Henry Pulga, Antonio Arosio, and Adolfo Jagmis. The gist of their testimonies is as follows:
At around 4 oclock in the morning of September 25, 1980, Noe Bergante and his brother Noel Bergante
and his cousin Freddie Ganancial were awakened by the sound of gunfire while they were asleep in their
house in Bato, Taytay, Palawan. Their mother, who was frightened, fainted and had to be helped by Noe.
Noel went to the kitchen and, from there, saw Protacio Edep fire his carbine, as he shouted, Kapitan, you
come down, this is [a] peace officer. He was apparently referring to Restituto Bergante. Noel answered
______________
3 Records, p. 1.
4 Id., p. 21.
5 Also referred to as Vigonte or Vergonte in the transcript of stenographic notes.
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Angcaco vs. People
that his father was not in the house, having gone to Puerto Princesa. Edep then ordered the men in the
house to come out. Noel accordingly went to the gate and later called Noe to also come out of the house.
Noe and his cousin, Freddie Ganancial, did as bidden.
Once they were outside the house, Noe and Freddie were flanked by petitioner Angcaco on the right side
and accused Ramon Decosto on the left side. Decosto pointed an armalite at the two and warned them not
to run. Noe and Freddie joined Noel Bergante. Protacio Edep approached Freddie saying, You are tough,
and pushed him. Then, shots rang out from the armalite and short firearm of Decosto and Edep, as a result
of which Freddie Ganancial turned around and dropped to the ground face down. Decosto was around
three meters away from Freddie.
In fright, Noe and Noel ran inside the house. After a few seconds, Noe saw, through the window, Lota and
Angcaco turning over the body of Freddie Ganancial. After briefly leaving the body, both came back 15
minutes later. Noe said Lota brought with him an object wrapped in a newspaper, which Noe surmised was
a knife. Lota placed the object in the right hand of Freddie Ganancial. Noel, on the other hand, said that he
returned to the crime scene and recovered two empty shells which he gave to a certain Major Silos. Noe
reported the matter to Barangay Tanods Sabino Mahinay and a certain Ramon.6
Antonio Arosio, a neighbor of the Bergantes, corroborated the testimonies of Noe and Noel Bergante.
According to Arosio, at around 4:30 a.m. of September 25, 1980, while he was asleep in his house in Bato,
Taytay, Palawan, he was awakened by the sound of gunfire. He said he heard a commotion outside,
followed by another volley of shots. He claimed he recognized by their voices some of the persons
involved, namely, Protacio Edep, Noel Bergante, and Freddie Ganancial.
Arosio claimed that accused Decosto and Felizarte fetched him from his house a short time later and took
him to Edep, who was then in the house of the barangay captain. Arosio was asked about the whereabouts
of the barangay captain. He told Edep that Resti______________
6 TSM (Noe Bergante), pp. 3-24, Nov. 18, 1981; TSN (Noel Bergante), pp. 4-26, March 25, 1982.
302
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Angcaco vs. People
tuto Bergante, the barangay captain, had gone to Puerto Princesa two days earlier.
Arosio testified that on his way home he saw a person lying on the ground in a prone position. He later
learned it was Freddie Ganancial. Arosio identified in court the policemen whom he saw that morning, that
is, Edep, Decosto, Felizarte, Lota, and Angcaco.
On cross-examination, Arosio claimed that he was investigated by a police officer, whose name he could
not remember, three years after the incident. The investigation was held in the house of Barangay Captain
Restituto Bergante, who told him that he would testify in this case. Although he was reluctant to testify
because of fear, Arosio said he finally agreed to do so in 1984. Prior to the incident, he had not heard
Edeps voice but only assumed that the voice he heard that morning was that of Edep as the latter was the
highest-ranking policeman he later saw.7
Although Dr. Romeo D. Valino conducted the postmortem examination on the body of Freddie Ganancial,
it fell to Dr. Alberto H. Lim, Assistant Provincial Health Officer in Palawan, to identify the medico-legal
report of Dr. Valino and to explain its contents in view of Dr. Valinos death pending the trial of the case.
Dr. Valinos report stated in pertinent parts:
Physical Examination:
1. Gunshot wound lateral aspect D/3rd arm right (entrance) with contusion collar thru and thru passing
thru the medial aspect arm right, entering to the lateral aspect mid axillary line at the level of the 9th rib
hitting ascending colon and small intestine.
2. Gunshot wound at the level of the 7th rib at anterior axillary line right with contusion collar (entrance) to
the epigastric region (exit) 10 cm[s]. x 3 cm[s]. hitting the liver (mascerated).
3. Gunshot wound subcostal region right at the level of mid clavicular line (entrance) right side to the
subcostal region left side (exit at the level of mid mammary line).
4. Stomach with alcoholic smell.
5. Clotted blood at abdominal cavity, about 500 cc.
______________
7 TSN (Antonio Arosio), pp. 3-35, July 18, 1984.

303

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Angcaco vs. People
Cause of Death:
Shock secondary to internal and external hemorrhage due to gunshot woundsbody and abdomen.8
Dr. Lim identified the medical report signed by Dr. Valino because he was familiar with the handwriting of
the latter. As regards the contents of the medical certificate, Dr. Lim stated that Freddie Ganancial, alias
Edgar Gallego, 25 years of age, died as a result of shock secondary to internal and external hemorrhage
due to gunshot wounds on the body and abdomen, which means that the victim died because of loss of
blood resulting in shock due to a gunshot wound in the abdomen. He testified that the victim sustained
three gunshot wounds. The first gunshot entered the body at the lateral aspect distal third arm with
contusion collar, the bullet entering the lateral aspect midaxillary line at the level of the ninth rib and
hitting the colon and small intestine. The second gunshot wound was located at the right side of the body
at the seventh rib at right anterior axillary line with contusion collar (entrance), the bullet passing through
the epigastric region and hitting the liver, which was mascerated. The third gunshot wound was in the right
subcostal region at the level of the midclavicular line (entrance) right side to the left side of the subcostal
region, the bullet exiting below the nipple.
On cross-examination, Dr. Lim said that based on the findings of the medical report, the victim had been
taking liquor prior to his death. He also admitted that he had not undertaken studies on the identification
of handwriting. Dr. Lim claimed that he identified the signature of Dr. Valino in the medical report on the
basis of the other reports the latter had submitted to their office.9
Honorato Flores, senior ballistician of the National Bureau of Investigation (NBI) in Manila, identified the
ballistics report he had prepared and the shell fragments presented to him for examination. He said that
the fragments could have possibly been caused by the impact of the bullet on a human being.
______________
8 Exh. E; Records, p. 959.

9 TSN (Dr. Alberto H. Lim), pp. 4-12, Aug. 30, 1983.
304
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Angcaco vs. People
When cross-examined, Flores said that no armalite rifle was given to him but only shell fragments were
presented to him for examination. He said that the gun and the lead would have to be examined by using
the bullet comparison microscope to determine whether the lead was fired from the same gun. A bone or
a cement flooring could have caused the shell fragments to break, according to Flores. Upon inquiry by the
trial court, he said it was possible that a piece of copper and the lead formed part of one bullet, but it was
also possible that they did not.10
Sgt. Henry Pulga, acting station commander of Taytay, Palawan, testified that on October 6, 1980, he
investigated the complaint filed by Barangay Captain Bergante regarding the killing of the latters nephew,
Freddie Ganancial. He identified the affidavits of Mario Felizarte (Exh. H) and Ramon Decosto (Exh. I),
which he himself prepared. According to Pulga, he informed Felizarte and Decosto of their rights to counsel
and to remain silent and explained to them the import of these rights. He said that Felizarte and Decosto
voluntarily gave their statements before him, although Pulga also admitted that the two did not have
counsel to assist them during the investigation.11
The last witness for the prosecution was Adolfo D. Jagmis, the chief investigator of the Palawan
Constabulary based in Tiniguiban. He testified that on October 6, 1980 he investigated Edep, Lota, and
Angcaco. He said that after Angcaco was apprised of his constitutional rights, the latter executed a
statement (Exh. J),12 which Jagmis identified in court. But Jagmis admitted that the statement was made
without the assistance of counsel.13
On cross-examination by counsel for accused Decosto, Jagmis was confronted with the affidavit of
Angcaco, in which the latter identified an armalite which he allegedly used at the time of the incident.
Jagmis said the armalite and the lead recovered from the scene were both given to the Provincial Fiscals
Office.
______________
10 TSN (Honorato Flores), pp. 5-14, Nov. 17, 1983.

11 TSN (Sgt. Henry Pulga), pp. 3-13, Dec. 14, 1983.
12 Records, pp. 968-969.
13 TSN (Adolfo D. Jagmis), pp. 36-44, July 18, 1984.
305

305
Angcaco vs. People
The defense presented as its witnesses Protacio Edep, Ramon Decosto, John Angcaco, and Lydio Lota,
whose testimonies are as follows:
In the early morning of September 25, 1980, petitioner and his co-accused, led by Edep, went to the house
of Restituto Bergante in Bato, Taytay, Palawan to serve a warrant for the latters arrest. When they
reached the house, Edep and his men took positions as they had been warned that Restituto Bergante
might resist arrest. Decosto and Angcaco were each armed with armalites, Lota had a carbine, Felizarte a
revolver, and Edep a carbine and a revolver. Decosto was on the left side of Edep, around seven to 10
meters from the latter. Angcaco, on the other hand, was on right side of Edep, around four to seven
meters from the latter. Edep called Restituto Bergante to come out of the house as he (Edep) had a
warrant for his arrest. Restitutos wife replied that her husband was not in the house, having gone to
Puerto Princesa. A commotion then took place inside the house and, shortly after, petitioner saw a man
coming down the house. They fired warning shots to stop the man, but petitioner saw another person with
a bolo near Edep. He shouted, Sarge, this is the man who tried to hack you!, and shot the unidentified
man, who fell to the ground face up. At the time of the incident, Decosto was on the left side of Edep,
while petitioner, Felizarte, and Lota were on the right side of Edep. They later learned that the person
killed was Freddie Ganancial.
Edep conducted an investigation and recovered from the scene of the crime empty shells from armalite
bullets, which he turned over to the provincial fiscal. Edep and his men were then taken to Taytay and
investigated by P/Sgt. Adolfo Jagmis. Thereafter, Edep and his men learned that they were charged with
murder. An administrative complaint for grave misconduct was likewise filed against them in the National
Police Commission, but the case was dismissed.14
On January 31, 1996, the trial court rendered a decision, the dispositive portion of which reads:
______________
14 TSN (John Angcaco), pp. 3-18, Oct. 7, 1986; TSN (Protacio Edep), pp. 3-6, Oct. 3, 1986; TSN (Ramon
Decosto), pp. 3-10, Sept. 4, 1986; TSN (Lydio Lota), 9-15, Oct. 17, 1986.
306
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Angcaco vs. People
WHEREFORE, after a careful evaluation of the evidence on record, this court is of the considered opinion,
and so holds, that accused John Angcaco, is GUILTY beyond reasonable doubt of the crime of Murder
defined and penalized in Article 248 of the Revised Penal Code. With the presence of the mitigating
circumstance of lack of intention to commit so grave a wrong and with the application of the
Indeterminate Sentence Law, this Court hereby imposes upon him the penalty of imprisonment ranging
from seventeen (17) years and four (4) months of reclusion temporal as minimum, to twenty (20) years of
reclusion temporal, as maximum, and to pay the heirs of Freddie Ganancial the amount of fifty thousand
pesos (P50,000.00) as death indemnity.
Co-accused Protacio Edep, Ramon Decosto, Lydio Lota and Mario Felizarte are ordered ACQUITTED for
insufficiency of evidence.15
Petitioner Angcaco filed an appeal with the Court of Appeals, which affirmed with modification the trial
courts decision. The dispositive portion of the Court of Appeals decision reads:
WHEREFORE, with the modification only that the mitigating circumstance of incomplete fulfillment of a
lawful duty should be appreciated in determining the imposable penalty, not lack of intention to commit so
grave a wrong, the trial court had correctly imposed the penalty of imprisonment ranging from seventeen
(17) years and four (4) months of reclusion temporal as minimum, to twenty (20) years of reclusion
temporal as maximum the questioned decision is affirmed in all other respects.
Costs against the accused.
SO ORDERED.16
Hence this appeal. Petitioner raises the following issues
I. WHETHER OR NOT THE COURT OF APPEALS OVERLOOKED AND/OR MISCONSTRUED THE EVIDENCE FOR
THE DEFENSE THAT ALL THE ELEMENTS OF DEFENSE OF [THE] PERSON OR RIGHTS OF A STRANGER ARE
PRESENT.
II. WHETHER OR NOT DUE PROCESS OR THE RIGHTS OF PETITIONER-ACCUSED HAS BEEN VIOLATED WHEN
THE HONORABLE COURT OF APPEALS OVERLOOKED OR FAILED TO APPRECIATE THE WEAKNESS OF THE
PROSECUTIONS EVIDENCE AND
______________
15 RTC Decision, pp. 11-12; Records, pp. 1001-1002.

307

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Angcaco vs. People
ITS FAILURE TO ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT.
III. WHETHER OR NOT THE APPELLATE COURT ERRED IN NOT ACQUITTING [PETITIONER] APPELLANT.17
First. Petitioner Angcaco argues that the prosecution evidence failed to prove his guilt beyond reasonable
doubt. He points out inconsistencies and contradictions in the testimonies and affidavits of prosecution
witnesses Noel and Noe Bergante.
We agree with accused-appellants contention. Generally, contradictions between the contents of the
witness affidavit and his testimony in court do not impair his credibility because affidavits are usually
taken ex parte and, for that reason, often incomplete and inaccurate.18 An affidavit will not always
disclose all the facts and will even at times, without being noticed by the witness, inaccurately describe the
occurrences related therein. Thus, we have time and again held that affidavits are generally inferior to
testimonies in court. Affidavits are often prepared only by the investigator without the affiant or witness
having a fair opportunity to narrate in full the incident which took place, whereas in open court, the latter
is subjected to cross-examination by counsel for the accused.19
However, where the discrepancies between the affidavit and the witness testimony on the stand are
irreconcilable and unexplained and they refer to material issues, such inconsistencies may well reflect on
the witness candor and even honesty and thus impair his credibility.20 Hence, we have recognized as
exceptions to the general rule instances where the narration in the sworn statement substantially
contradicts the testimony in court or where the omission in the affidavit refers to a substantial detail which
an eyewitness, had he been present at the scene at the time of the commis______________
17 Petition, p. 7; id., p. 32.

18 See Cariaga v. Court of Appeals, G.R. No. 143561, June 6, 2001, 358 SCRA 583.
19 Sarabia v. People, G.R. No. 142024, July 20, 2001, 361 SCRA 652.
20 People v. Tampon, 258 SCRA 115 (1996) citing People v. Aniscal, 228 SCRA 101 (1993); People v. Casim,
213 SCRA 390 (1992); People v. Tulagan, 143 SCRA 107 (1986).
308
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Angcaco vs. People

sion of the crime, could not have failed to mention.21 The case at bar is such an instance.
Noe Bergante pointed to Decosto and Edep as the ones who shot Freddie Ganancial.22 However, in his
affidavit, dated November 24, 1980, Noe pointed to Decosto as the lone assailant. Noe also failed to
mention the presence of Angcaco at the scene at the time of the commission of the crime.23 Noe tried to
explain these material omissions in his affidavit by claiming that he mentioned these details to the fiscal
but the latter must have forgotten to include them in the affidavit because he (the fiscal) was in a hurry to
leave that day.24 This explanation is too pat to be accepted. To begin with, Noe admitted that the
investigating fiscal, Fiscal Vergara, explained to him the contents of the affidavit before he (Noe) signed
it.25 Noe, therefore, could have noticed the omission of such vital matters which concerned the
identification of the persons responsible for his cousins death and called attention to such omission. The
identity of the malefactors is too important a detail for anyone who allegedly witnessed the incident to
overlook its omission in the very statement of the incident one is giving. The omissions suggest Noes
ignorance of the details of the incident as well as his readiness to perjure himself in order to implicate all of
the accused in this case.
Noel Bergante fared no better than his brother on the witness stand. On direct examination, Noel, like his
brother, identified Edep and Decosto as the assailants of Freddie Ganancial.26 However, Noels affidavit,
dated November 24, 1980, only mentioned Decosto as the person responsible for the killing of Freddie
Ganancial.27 Worse, Noel executed an affidavit earlier on September 26, 1980, in which he identified
Jardiolin,28 Mario Toledo, Lydio Lota, and Mario Gonzales as the companions of Decosto at the time of
______________
21 People v. Castillo, 261 SCRA 493 (1996).

22 TSN (Noe Bergante), p. 12, Nov. 18, 1981.
23 Exh. A; Records, pp. 953-954.
24 TSN (Noe Bergante), pp. 20-22, March 24, 1982.
25 Id., pp. 29-30.
26 TSN (Noel Bergante), p. 12, March 25, 1992.
27 Exh. C; Records, p. 956.
28 Spelled as Hardiolen in the affidavit.
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Angcaco vs. People
the commission of the crime.29 But, in his testimony, Noel said that Decostos companions were Edep,
Angcaco, Felizarte, and Lota.30 When confronted with the discrepancy, Noel said that he really meant to
refer to Angcaco, instead of Jardiolin, and to Ramon Decosto instead of Toledo. When further questioned,
Noel said that he was referring to Lota when he mentioned the name of Toledo,31 thus creating more
confusion with his answers. These contradictions, when taken together with Noels claim that he had
known Jardiolin, Felizarte, and Angcaco for a long time, cast serious doubts on his credibility.
Thus, prosecution witnesses Noel and Noe Bergante failed to give a credible and consistent account of the
identity of the person or persons responsible for the killing of Freddie Ganancial. There is apparent from a
reading of their testimonies a manifest tendency to improvise, modify, and even contradict themselves in
order to implicate each of the accused. It is in fact doubtful whether Noe and Noel saw what they testified
about. Even the trial court disregarded the testimonies of Noe and Noel Bergante and acquitted Edep and
Decosto in spite of their identification by these witnesses.
We are thus left with no clear picture of the events that transpired on September 25, 1980 and of the
identity of the shooter or shooters. It cannot be overemphasized that the constitutional presumption of
innocence demands not only that the prosecution prove that a crime has been committed but, more
importantly, the identity of the person or persons who committed the crime.32 But in the case at bar,
what passed for the prosecution evidence was a befuddling amalgamation of half-truths and lies obviously
fabricated by these supposed eyewitnesses to hold responsible each of the accused in this case for the
killing of their cousin. For this reason, we hold that the prosecution evidence failed to meet the quantum
of proof beyond reasonable doubt necessary for conviction in a criminal case.
______________
29 Exh. D; Records, pp. 957-958.

30 TSN (Noel Bergante), p. 14, March 25, 1982.
31 TSN (Noel Bergante), pp. 4-14, Dec. 16, 1982.
32 People v. Milan, 311 SCRA 461 (1999).
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Angcaco vs. People
Second. The conviction of petitioner Angcaco must, however, be upheld in view of his admission that he
shot Freddie Ganancial. The rule is that while the prosecution has the burden of establishing the guilt of
the accused, once the defendant admits commission of the act charged, although he invokes a justification
for its commission, the burden of proof is shifted to him to prove the said justifying circumstance.33
Petitioner Angcaco cannot rely on the weakness of the evidence for the prosecution, for even if it is weak,
it cannot be disbelieved after he has admitted the killing itself.34 This is because a judicial confession
constitutes evidence of a high order. It is presumed that no sane person would deliberately confess to the
commission of an act unless moved by the desire to reveal the truth.35
Petitioner claims that he acted in defense of Sgt. Protacio Edep, whom Freddie Ganancial was about to
strike with a bolo. We do not agree. For petitioner to successfully claim the benefit of Art. 11, par. 3 of the
Revised Penal Code, there must be proof of the following elements: (1) unlawful aggression; (2) reasonable
necessity of the means employed to prevent or repel it; and (3) the person defending be not induced by
revenge, resentment, or other evil motive.
Unlawful aggression on the part of the victim, which must be sufficiently proven by the defense,36 is
present when there is actual or imminent peril to ones life, limb, or right. There must be actual physical
force or actual use of a weapon by the victim himself.37 In this case, it is contended that the victim, who
was armed with a bolo, approached Edep menacingly. But, there is no other competent evidence to
corroborate this self-serving claim. Edep testified that he heard petitioners warning that an armed man
was behind him.38 However, when asked about the weapon allegedly held by the victim, Edep replied that
he did not see any as he turned
______________
33 Balanay v. Sandiganbayan, 344 SCRA 1 (2000).

34 People v. Mendoza, 327 SCRA 695 (2000).
35 People v. Samolde, 336 SCRA 632 (2000).
36 People v. Basadre, G.R. No. 131851, Feb. 22, 2001, 352 SCRA 573.
37 People v. Peralta, G.R. No. 128116, Jan. 24, 2001, 350 SCRA 198; See People v. Basadre, G.R. No.
131851, Feb. 22, 2001, 352 SCRA 573.
38 TSN (Protacio Edep), p. 11, Sept. 3, 1986.
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Angcaco vs. People
around to face his supposed assailant.39 It was only later that Edep claimed seeing a knife in the area
where the victim fell.40 One is thus led to suspect that Edeps claim that he saw a knife was a mere
afterthought designed to exculpate his fellow officer from the charges against him.
Petitioners own testimony suffers from inconsistencies and improbabilities on material points.
First, there was no reason for the victim, Freddie Ganancial, to attack Sgt. Edep, who was looking for
Restituto, because the latter was not there in his house, having earlier gone to Puerto Princesa. In fact,
Edep admitted he was about to order his men to leave the premises when they found that their quarry was
not there. The victim himself was not wanted by the police. Dr. Lim said Ganancial was drunk. In that
condition, he could have easily have been overpowered by any member of the arresting team, if he made
any aggressive move, without shooting him to prevent him from doing harm to the latter.
Second, when cross-examined about the bolo, petitioner said he could not remember who took it away.41
However, at a later hearing, petitioner stated that it was he who picked up the bolo and turned it over to
Edep, his superior officer.42 But how could he not remember who took the bolo if he was the one who did
so? Once again, petitioner was prevaricating.
Third, petitioner said that he merely intended to fire a warning shot when he saw Ganancial. This claim is
belied by the fact that the victim sustained three gunshot wounds on the chest and abdomen. It is
apparent that petitioner intended to kill the victim and not merely to warn him.
Indeed, even assuming that the victim was charging at Sgt. Edep, it would have been sufficient for
petitioner to warn Sgt. Edep of the danger. Not that petitioner was not expected to pause for a moment
while his colleague was in danger.43 However, the rules of
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39 Id., p. 28.
40 Id., p. 33.
41 TSN (John Angcaco), p. 17, Oct. 7, 1986.
42 Id., p. 2.
43 People v. Ulep, 340 SCRA 688 (2000).
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Angcaco vs. People
engagement do not, on the other hand, require that he should immediately draw or fire his weapon if the
person accosted did not heed his call.44 But rather than confront the victim as to his intended purpose,
petitioner immediately shot the former without further thought.
Petitioner claims the victim was armed with a bolo. The circumstances, however, indicate otherwise.
Petitioner was questioned by the prosecutor on the existence of the bolo during the hearing held on
October 7, 1986. The bolo was presented in court only on October 17, 1986. At the hearing on that date,
petitioner and Lydio Lota both claimed that they could identify the bolo by the markings placed on it by
Sgt. Edep.45 But Sgt. Edep made no mention of having recovered a bolo, much less of marking it. In fact,
Edep at one point testified that he did not see any weapon near the victim. It is doubtful, therefore, that
the bolo offered in evidence by the defense was the one actually recovered from the scene of the crime.46
It is more likely that the idea to offer the bolo in question was a mere afterthought by the defense brought
about by the fiscals own reminder that the presentation of the weapon was crucial to petitioners plea of
defense of stranger.47
Nor can petitioners claim that the killing was done in fulfillment of a lawful duty be sustained, as the Court
of Appeals ruled. For this justifying circumstance to be appreciated, the following must be established: (1)
that the offender acted in the lawful exercise of a right or a duty; and (b) that the injury or offense
committed be the necessary consequence of the due performance of such right or office.48
In this case, the mission of petitioner and his colleagues was to effect the arrest of Restituto Bergante. As
Edep himself explained, the standard procedure in making an arrest was, first, to identify themselves as
police officers and to show the warrant to the arres______________
44 People v. Tan, G.R. Nos. 116200-02, June 21, 2001, 359 SCRA 283.
45 TSN (John Angcaco), pp. 2-3, Oct. 17, 1986; TSN (Lydio Lota), p. 13, Oct. 17, 1986.
46 See People v. Besena, 64 SCRA 84 (1975).
47 TSN, p. 17, Oct. 7, 1986.
48
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Angcaco vs. People
tee and to inform him of the charge against him, and, second, to take the arrestee under custody.49 But, it
was not shown here that the killing of Ganancial was in furtherance of such duty. No evidence was
presented by the defense to prove that Ganancial attempted to prevent petitioner and his fellow officers
from arresting Restituto Bergante. There was in fact no clear evidence as to how Freddie Ganancial was
shot. Indeed, as already stated, any attempt by the victim to arrest the wanted person was pointless as
Restituto Bergante was not in his house. As regards the second requisite, there can be no question that the
killing of Freddie Ganancial was not a necessary consequence of the arrest to be made on Restituto
Bergante.
Reliance by the Court of Appeals on the case of People v. Oanis50 is misplaced. In Oanis, the accused, who
were police officers, shot and killed the victim under the erroneous notion that the latter was the person
they were charged to arrest. The Court held that the first requisitethat the offenders acted in
performance of a lawful dutywas present because the offenders, though overzealous in the performance
of their duty, thought that they were in fact killing the man they have been ordered to take into custody
dead or alive. In this case, petitioner did not present evidence that he mistook Freddie Ganancial for
Restituto Bergante and, therefore, killed him (Ganancial) perhaps because he placed the lives of the
arresting officers in danger.
Third. On the other hand, we think the Court of Appeals erred in appreciating the qualifying circumstance
of treachery against petitioner. There is treachery when the offender commits any of the crimes against
the person, employing means, methods, or forms in the execution thereof which tend directly and specially
to insure its execution, without risk to himself arising from the defense which the offended party might
take.51 For treachery to exist, two conditions must be present: (1) there must be employment of means of
execution that gives the person attacked no opportunity to defend himself or to retaliate; and (2) the
means of execution
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49 TSN (Protacio Edep), p. 17, Sept. 3, 1986.

50 74 Phil. 257 (1943).
51 People v. Natividad, G.R. No. 138017, Feb. 23, 2001, 352 SCRA 651.
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Angcaco vs. People
were deliberately or consciously adopted.52 As has been discussed, the testimonies of prosecution
witnesses Noe and Noel Bergante cannot be given credence. As we already stated, even the trial court
acquitted accused Decosto and Edep, both of whom were implicated as the assailants. Without evidence of
the manner the aggression was made or how the act resulting in the death of the victim began and
developed, it is not possible to appreciate the qualifying circumstance of treachery.53
Nor can evident premeditation be appreciated in this case. Evident premeditation requires proof of the
following elements: (1) the time when the accused decided to commit the crime; (2) an overt act
manifestly indicating that he has clung to his determination; and (3) a sufficient lapse of time between
decision and execution to allow the accused to reflect upon the consequences of his act.54 None of these
elements has been shown in this case.
For the foregoing reasons, petitioner is liable only for homicide, for which the penalty under Art. 249 of the
Revised Penal Code is reclusion temporal. As neither mitigating nor aggravating circumstances attended
the commission of the crime, the penalty must be imposed in its medium period, pursuant to Art. 64(1) of
the Revised Penal Code. Applying the Indeterminate Sentence Law, the minimum imposable penalty on
accused-appellant falls within the range of the penalty next lower in degree, i.e., prision mayor, or from six
(6) years and one (1) day to twelve (12) years. Accordingly, the penalty to be imposed on accusedappellant must be fixed within the range of prision mayor, or from six (6) years and one (1) day to twelve
years (12) years, as minimum, to reclusion temporal medium, or from fourteen (14) years, eight (8)
months, and one (1) day to seventeen (17) years and four (4) months, as maximum.
Petitioner should also be made to pay the heirs of the victim, Freddie Ganancial, the amount of P50,000.00
as moral damages,55
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52 People v. Samudio, G.R. No. 126168, March 7, 2001, 353 SCRA 746.
53 People v. Mationg, G.R. No. 137989, March 27, 2001, 355 SCRA 458.
54 See People v. Tan, G.R. Nos. 116200-02, June 21, 2001, 359 SCRA 283.
55 People v. Gano, G.R. No. 134373, Feb. 28, 2001, 353 SCRA 126.
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Angcaco vs. People
in addition to the amount of P50,000.00 awarded by the trial court and the Court of Appeals as
indemnity.56 The purpose of making such an award of moral damages is not to enrich the heirs of the
victim but to compensate them for injuries to their feelings.57
WHEREFORE, the decision of the Court of Appeals, dated November 29, 2000, is AFFIRMED with the
MODIFICATION that petitioner is found guilty of the crime of homicide and is sentenced to suffer the
penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8)
months, and one (1) day of reclusion temporal, as maximum, and to pay the heirs of the victim, Freddie
Ganancial, P50,000.00 as civil indemnity and P50,000.00 as moral damages.
SO ORDERED.
Bellosillo (Chairman), Quisumbing, Buena and De Leon, Jr., JJ., concur.
Judgment affirmed with modification.
Note.The elements of evident premeditation must be established with equal certainty and clarity as the
criminal act itself before it can be appreciated as a qualifying circumstance. (People vs. Reyes, 287 SCRA
229 [1998])
o0o
13. Tabuena vs People

332
Tabuena vs. Sandiganbayan
G.R. Nos. 103501-03. February 17, 1997.*
LUIS A. TABUENA, petitioner, vs. HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES,
respondents.
G.R. No. 103507. February 17, 1997.
ADOLFO M. PERALTA, petitioner, vs. HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE
PHILIPPINES, represented by the OFFICE OF THE SPECIAL PROSECUTOR, respondents.
Criminal Law; Malversation; Criminal Procedure; Right to be Informed; Malversation is committed either
intentionally or by negligence and even if the mode charged differs from the mode proved, the same
offense of malversation is involved and conviction thereof is proper.We do not agree with Tabuena and
Peralta on this point. Illuminative and controlling is Cabello v. Sandiganbayan where the Court passed
upon similar protestations raised by therein accused-petitioner Cabello whose conviction for the same
crime of malversation was affirmed, in this wise: x x x even on the putative assumption that the evidence
against petitioner yielded a case of malversation by negligence but the information was for intentional
malversation, under the circumstances of this case his conviction under the first mode of misappropriation
would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the
culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged
differs from the mode proved, the same offense of malversation is involved and conviction thereof is
proper. x x x.
Same; Same; Same; Same; While a criminal negligent act is not a simple modality of a willful crime, but a
distinct crime, designated as a quasi-offense in the Penal Code, it may however be said that a conviction
for the former can be had under an information exclusively charging the commission of a willful offense,
upon the theory that the greater includes the lesser offense.In Samson vs. Court of Appeals, et al., we
held that an accused charged with willful or intentional
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* EN BANC.
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falsification can validly be convicted of falsification through negligence, thus: While a criminal negligent
act is not a simple modality of a willful crime, as we held in Quizon vs. Justice of the Peace of Bacolor, G.R.
No. L-6641, July 28, 1995, but a distinct crime in our Penal Code, designated as a quasi offense in our Penal
Code, it may however be said that a conviction for the former can be had under an information exclusively
charging the commission of a willful offense, upon the theory that the greater includes the lesser offense.
This is the situation that obtains in the present case. Appellant was charged with willful falsification but
from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification
which made possible the cashing of the checks in question, appellant did not act with criminal intent but
merely failed to take proper and adequate means to assure himself of the identity of the real claimants as
an ordinary prudent man would do. In other words, the information alleges acts which charge willful
falsification but which turned out to be not willful but negligent. This is a case covered by the rule when
there is a variance between the allegation and proof, and is similar to some of the cases decided by this
Tribunal.
Same; Same; Good faith is a valid defense in a prosecution for malversation for it would negate criminal
intent on the part of the accused.Going now to the defense of good faith, it is settled that this is a valid
defense in a prosecution for malversation for it would negate criminal intent on the part of the accused.
Thus, in the two (2) vintage, but significant malversation cases of US v. Catolico and US v. Elvia, the
Court stressed that: To constitute a crime, the act must, except in certain crimes made such by statute, be
accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences as, in
law, is equivalent to criminal intent. The maxim is actus non facit reum, nisi mens sit reaa crime is not
committed if the mind of the person performing the act complained of is innocent.
Same; Same; Justifying Circumstances; Obedience to Lawful Order of Superior; As a recipient of a directive
coming from the highest official of the land no less, good faith should be read on a subordinate
government officials compliance, without hesitation nor any question, with said order.In so far as
Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum, we are
swayed to give credit to his claim of having caused the disbursement of the P55 Million solely by reason of
such memorandum.
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From this premise flows the following reasons and/or considerations that would buttress his innocence of
the crime of malversation. First, Tabuena had no other choice but to make the withdrawals, for that was
what the MARCOS Memorandum required him to do. He could not be faulted if he had to obey and strictly
comply with the presidential directive, and to argue otherwise is something easier said than done. Marcos
was undeniably Tabuenas superiorthe former being then the President of the Republic who
unquestionably exercised control over government agencies such as the MIAA and PNCC. In other words,
Marcos had a say in matters involving inter-government agency affairs and transactions, such as for
instance, directing payment of liability of one entity to another and the manner in which it should be
carried out. And as a recipient of such kind of a directive coming from the highest official of the land no
less, good faith should be read on Tabuenas compliance, without hesitation nor any question, with the
MARCOS Memorandum. Tabuena therefore is entitled to the justifying circumstance of Any person who
acts in obedience to an order issued by a superior for some lawful purpose. The subordinate-superior
relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained in
the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government
agency (MIAA) to another (PNCC).
Same; Same; Same; Same; Even if the order is illegal if it is patently legal and the subordinate is not aware
of its illegality, the subordinate is not liable, for then there would only be a mistake of fact committed in
good faith.Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its
illegality, the subordinate is not liable, for then there would only be a mistake of fact committed in good
faith. Such is the ruling in Nassif v. People.
Same; Same; Same; Same; The subordinate who, in following an order of a superior, failed to observe all
auditing procedures of disbursement, cannot escape responsibility for such omission but where he acted in
good faith, his liability should only be administrative or civil in nature, not criminal.But this deviation was
inevitable under the circumstances Tabuena was in. He did not have the luxury of time to observe all
auditing procedures of disbursement considering the fact that the MARCOS Memorandum enjoined his
immediate compliance with the directive that he forward to the Presidents Office the P55 Million in
cash. Be that as it may, Tabuena surely cannot escape responsibility for such omission. But
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since he was acting in good faith, his liability should only be administrative or civil in nature, and not
criminal.
Same; Same; Same; Same; The good faith of a subordinate in having delivered the money to the
Presidents office, in strict compliance with the Presidents memorandum, is not at all affected even if it
later turns out that the intended payee never received the money.It must be stressed that the MARCOS
Memorandum directed Tabuena to pay immediately the Philippine National Construction Corporation,
thru this office, the sum of FIFTY FIVE MILLION . . . ., and that was what Tabuena precisely did when he
delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the
President inasmuch as Mrs. Gimenez was Marcos secretary then. Furthermore, Tabuena had reasonable
ground to believe that the President was entitled to receive the P55 Million since he was certainly aware
that Marcos, as Chief Executive, exercised supervision and control over government agencies. And the
good faith of Tabuena in having delivered the money to the Presidents office (thru Mrs. Gimenez), in strict
compliance with the MARCOS Memorandum, was not at all affected even if it later turned out that PNCC
never received the money.
Same; Same; Conspiracy; No criminal liability can be imputed to a subordinate who, pursuant to the
Presidents directive, delivers money which is subsequently malversed where no conspiracy is established
between him and the real embezzlers.Even assuming that the real and sole purpose behind the MARCOS
Memorandum was to siphon-out public money for the personal benefit of those then in power, still, no
criminal liability can be imputed to Tabuena. There is no showing that Tabuena had anything to do
whatsoever with the execution of the MARCOS Memorandum. Nor is there proof that he profited from the
felonious scheme. In short, no conspiracy was established between Tabuena and the real embezzler/s of
the P55 Million. In the cases of US v. Acebedo and Ang v. Sandiganbayan, both also involving the crime
of malversation, the accused therein were acquitted after the Court arrived at a similar finding of nonproof of conspiracy.
Same; Same; Compliance to a patently lawful order is rectitude far better than contumacious
disobedience.This is not a sheer case of blind and misguided obedience, but obedience in good faith of a
duly executed order. Indeed, compliance to a patently lawful order is rectitude far better than
contumacious disobedience. In the case at
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bench, the order emanated from the Office of the President and bears the signature of the President
himself, the highest official of the land. It carries with it the presumption that it was regularly issued. And
on its face, the memorandum is patently lawful for no law makes the payment of an obligation illegal. This
fact, coupled with the urgent tenor for its execution constrains one to act swiftly without question.
Obedientia est legis essentia.
Same; Same; Due Process; Criminal Procedure; An appeal in a criminal case throws the whole case open to
review, and it becomes the duty of the appellate court to correct such errors as may be found in the
judgment appealed from whether they are made the subject of assignments of error or not.But what
appears to be a more compelling reason for their acquittal is the violation of the accuseds basic
constitutional right to due process. Respect for the Constitution, to borrow once again Mr. Justice Cruzs
words, is more important than securing a conviction based on a violation of the rights of the accused.
While going over the records, we were struck by the way the Sandiganbayan actively took part in the
questioning of a defense witness and of the accused themselves. Tabuena and Peralta may not have raised
this as an error, there is nevertheless no impediment for us to consider such matter as additional basis for
a reversal since the settled doctrine is that an appeal throws the whole case open to review, and it
becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed
from whether they are made the subject of assignments of error or not.
Same; Same; Same; Words and Phrases; Confrontation, Probing, and Insinuation, Explained.
Confrontation.Confrontation consists of confronting the witness with damaging facts which he cannot
deny and which are inconsistent with his evidence. It is a destructive technique, but when it fails to destroy
it may still succeed in weakening. Probing.Probing consists of inquiring thoroughly into the details of the
story to discover the flaws. Insinuation.Insinuation consists of leading or forcing the witness by adding
facts at one point and modifying details at another, to give a version of his evidence which is more
favorable to the other side. The Technique of Advocacy, by John H. Munkman, pp. 66-67; p. 75; pp. 91-92.
Same; Same; Same; Judges; The cold neutrality of an impartial judge requirement of due process is
certainly denied the accused
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when the court assumes the dual role of magistrate and advocate.This Court has acknowledged the right
of a trial judge to question witnesses with a view to satisfying his mind upon any material point which
presents itself during the trial of a case over which he presides. But not only should his examination be
limited to asking clarificatory questions, the right should be sparingly and judiciously used; for the rule is
that the court should stay out of it as much as possible, neither interfering nor intervening in the conduct
of the trial. Here, these limitations were not observed. Hardly in fact can one avoid the impression that the
Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the prosecution in
proving the case against Tabuena and Peralta when the Justices cross-examined the witnesses, their crossexaminations supplementing those made by Prosecutor Viernes and far exceeding the latters questions in
length. The cold neutrality of an impartial judge requirement of due process was certainly denied
Tabuena and Peralta when the court, with its overzealousness, assumed the dual role of magistrate and
advocate.
Same; Same; Same; Supreme Court; Constitutional Law; As between a mere apprehension of a dangerous
precedent and an actual violation of constitutionally enshrined rights, it is definitely the latter that merits
the Supreme Courts immediate attention.Furthermore, as between a mere apprehension of a
dangerous precedent and an actual violation of constitutionally enshrined rights, it is definitely the latter
that merits our immediate attention. For the most dangerous precedent arises when we allow ourselves to
be carried away by such fears so that it becomes lawful to sacrifice the rights of an accused to calm the
fearful. In our eagerness to bring to justice the malefactors of the Marcos regime, we must not succumb to
the temptation to commit the greatest injustice of visiting the sins of the wrongdoers upon an innocent.
DAVIDE, JR., J., Dissenting:
Due Process; Judges; The trial judges in this jurisdiction are judges of both the law and the facts, and they
would be negligent in the performance of their duties if they permitted a miscarriage of justice as a result
of a failure to propound a proper question to a witness which might develop some material fact upon
which the judgment of the case should turn.There is no showing at all that the extensive participation by
the Justices of the Sandiganbayan in questioning the appellants and their witness indicated prejudgment
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of guilt, bias, hatred, or hostility against the said appellants. On the contrary, the quoted portions of the
questions propounded by the Justices manifest nothing but a sincere desire to ferret out the facts to arrive
at the truth which are crucial in the determination of the innocence or guilt of the appellants. These
Justices, as trial magistrates, have only exercised one of the inherent rights of a judge in the exercise of
judicial function. What this Court stated eighty-three years ago in United States v. Hudieres needs
repeating: It is very clear, however, from a review of the whole proceedings that the only object of the trial
judge in propounding these questions was to endeavor as far as possible to get at the truth as to the facts
to which the witnesses were testifying. The right of a trial judge to question the witnesses with a view to
satisfying his mind upon any material point which presents itself during the trial of a case over which he
presides is too well established to need discussion. The trial judges in this jurisdiction are judges of both
the law and the facts, and they would be negligent in the performance of their duties if they permitted a
miscarriage of justice as a result of a failure to propound a proper question to a witness which might
develop some material fact upon which the judgment of the case should turn. So in a case where a trial
judge sees that the degree of credit which he is to give the testimony of a given witness may have an
important bearing upon the outcome, there can be no question that in the exercise of a sound discretion
he may put such questions to the witness as will enable him to formulate a sound opinion as to the ability
or willingness of the witness to tell the truth.
Same; Same; Waiver; Rights may be waived unless the waiver is contrary to law, public order, public policy,
morals, or good customs, or is prejudicial to a third person with a right recognized by law.Even granting
arguendo that the conduct of the Justices constituted such a violation, the appellants are forever estopped
from raising that issue on ground of waiver. This Court would risk an accusation of undue partiality for the
appellants were it to give them premium for their torpor and then reward them with an acquittal. Such
waiver is conclusively proven in these cases. From the quoted portions of the testimonies of the witnesses
for the appellants, it is clear that their counsel did not object to, or manifest on record his misgivings on,
the active participation of the Justices in the examination (or cross-examination) of the witnesses. Nothing
could have prevented the counsel for the appellants from doing so. Then, too, as correctly pointed out in
the ponencia, they made no assignment of error on the matter. In our jurisdiction, rights may be waived
unless
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the waiver is contrary to law, public order, public policy, morals, or good customs, or is prejudicial to a
third person with a right recognized by law.
Same; Same; Same; I submit that the right to an impartial trial is waivable.In the cases below, the
perceived violation, if at all it existed, was not of the absolute totality of due process, but more
appropriately of the right to an impartial trial, which is but an aspect of the guarantee of due process. I
submit that the right to an impartial trial is waivable.
Criminal Law; Malversation; Justifying Circumstances; Obedience to Lawful Order of Superior; When then
President Marcos ordered immediate payment, he should not have been understood as to order
suspension of the accepted budgeting, accounting, and auditing rules on the matterhe must only be
understood to order expeditious compliance with the requirements to facilitate immediate release of the
money.Being responsible accountable officers of the MIAA, they were presumed to know that, in light of
the undeferred portion of the repayment of PNCCs advances in the amount of P63.9 million, the MIAAs
unpaid balance was only P34.5 million. They also ought to know the procedure to be followed in the
payment of contractual obligations. First and foremost there were the submission by the PNCC of its claims
with the required supporting documents and the approval of the claims by the appropriate approving
authority of MIAA. When then President Marcos ordered immediate payment, he should not have been
understood as to order suspension of the accepted budgeting, accounting, and auditing rules on the
matter. Parenthetically, it may be stated here that although President Marcos was a dictator, he was
reported to be, and even projected himself as, a faithful advocate of the rule of law. As a matter of fact,
he did not hesitate to issue a decree, letter of instruction, or any presidential issuance in anticipation of
any planned actions or activities to give the latter the facade or semblance of legality, wisdom, or
propriety. When he made the order to appellant Tabuena, President Marcos must only be understood to
order expeditious compliance with the requirements to facilitate immediate release of the money. There
was no way for Tabuena to entertain any fear that disobedience to the order because of its unlawfulness
or delay in the execution of the order due to compliance with the requirements would cause his head or
life. He offered no credible evidence for such fear. This Court should not provide one for him. That
Tabuena served Mr. Marcos until the end of the latters regime and even
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beyond only proved a loyalty not based on fear but on other considerations.
ROMERO, J., Dissenting:
Criminal Law; Malversation; It is one thing to be ordered to pay a due and demandable obligation, it is
another to make such payment to someone other than the lawful obligee and worse, when the
subordinate is forced to breach official channels to comply with the order.In the case at bar, Tabuena
was allegedly ordered by President Marcos to pay the PNCC from MIAAs fund, thus ostensibly meeting the
first requirement but not the others. For there is a qualification which significantly changes the picture. The
payment was to be in cash and immediately made through the Office of the President. It is to be pointed
out that it is one thing to be ordered to pay a due and demandable obligation; it is another to make such
payment to someone other than the lawful obligee and worse, when the subordinate is forced to breach
official channels to comply with the order.
Same; Same; Judgments; Dissenting Opinions; The corroborative value of a dissenting opinion is minimal
precisely, it supports a position contrary to, and obviously unacceptable to the majority.The ponente
cites a dissenting opinion of Justice Isagani A. Cruz in Development Bank of the Philippines v. Pandogar to
uphold his ponencia. Need we remind our respected colleague that the corroborative value of a dissenting
opinion is minimal? Precisely, it supports a position contrary to, and obviously unacceptable to the
majority.
Same; Same; The Sandiganbayans finding that the accused converted and misappropriated the P55 million
cannot simply be brushed aside upon the accuseds claim that the money was delivered in good faith to
the Office of the President under the mistaken assumption that the President was entitled to receive the
same.The Sandiganbayans finding that petitioners converted and misappropriated the P55 million
cannot simply be brushed aside upon petitioners claim that the money was delivered in good faith to the
Office of the President under the mistaken assumption that the President was entitled to receive the same.
They rely on the case of People v. Fabian, which declared that (g)ood faith in the payment of public funds
relieves a public officer from the crime of malversation. But the very same decision also cites Article 217
to the effect that
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malversation may be committed by an accountable public officer by negligence if he permits any other
person to take the public funds or property in his custody. It is immaterial if petitioners actually converted
or misappropriated MIAAs funds for their own benefit, for by their very negligence, they allowed another
person to appropriate the same.
Administrative Law; Public Officers; Accountability of Public Officers; Rank may have its privileges but
certainly a blatant disregard of law and administrative rules is not one of themit must be etched in the
minds of public officials that the underside of privileges is responsibilities.The fact that no conspiracy
was established between petitioners and the true embezzlers of the P55 million is likewise of no moment.
The crime of malversation, as defined under Article 217 of the Code, was consummated the moment
petitioners deliberately turned over and allowed the Presidents private secretary to take custody of public
funds intended as payment of MIAAs obligations to the PNCC, if obligation there was at all. That petitioner
Tabuena who was then General Manager of MIAA personally and knowingly participated in the
misfeasance compounds the maleficence of it all. Rank may have its privileges but certainly a blatant
disregard of law and administrative rules is not one of them. It must be etched in the minds of public
officials that the underside of privileges is responsibilities.
Courts; Judges; Due Process; The true test for the appropriateness or inappropriateness of court queries is
not their quantity but their quality, that is, whether the defendant was prejudiced by the trial courts
actions.The numerous questions asked by the court a quo should have been scrutinized for any possible
influence it may have had in arriving at the assailed decision. The true test for the appropriateness or
inappropriateness of court queries is not their quantity but their quality, that is, whether the defendant
was prejudiced by such questioning. To repeat, petitioners did not feel prejudice by the trial courts
actions; otherwise, they would have raised this issue in the instant petition.
PUNO, J., Dissenting:
Criminal Law; Doctrine of Mistake of Fact; This Court has never applied the doctrine of mistake of fact
when negligence can be imputed to the accused.For the same reason, the majority cannot rely on the
doctrine of mistake of fact as ground to acquit petitioners. It found as a fact that x x x Tabuena acted
under the honest belief
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that the P55 million was a due and demandable debt x x x. This Court has never applied the doctrine of
mistake of fact when negligence can be imputed to the accused. In the old, familiar case of People vs. Ah
Chong, Mr. Justice Carson explained that ignorance or mistake of fact, if such ignorance or mistake of fact
is sufficient to negative a particular intent which under the law is a necessary ingredient of the offense
charged (e.g., in larceny animus furandi, in murder, malice, etc.), cancels the presumption of intent and
works an acquittal, except in those cases where the circumstances demand a conviction under the penal
provisions touching criminal negligence. Hence, Ah Chong was acquitted when he mistook his houseboy as
a robber and the evidence showed that his mistake of fact was not due to negligence. In the case at bar,
the negligence of the petitioners screams from page to page of the records of the case. Petitioners
themselves admitted that the payments they made were out of the ordinary and not based on normal
procedure.
Same; Constitutional Law; Justifying Circumstances; Obedience to Lawful Order of Superior; President; One
of the gospels in constitutional law is that the President is powerful but is not more paramount than the
law, and in criminal law, our catechism teaches us that it is loyalty to the law that saves, not loyalty to any
man.In effect, petitioners shocking submission is that the President is always right, a frightening echo of
the antedeluvian idea that the King can do no wrong. By allowing the petitioners to walk, the majority has
validated petitioners belief that the President should always be obeyed as if the President is above and
beyond the law. I cannot accept this dangerous ruling even if I look at it through the eyes of faith. One of
the gospels in constitutional law is that the President is powerful but is not more paramount than the law.
And in criminal law, our catechism teaches us that it is loyalty to the law that saves, not loyalty to any man.
Let us not bid goodbye to these sacrosanct principles.
PANGANIBAN, J., Dissenting:
Criminal Law; Justifying Circumstances; Obedience to Lawful Order of Superior; The defense of obedience
to a superiors order is already obsolete.The defense of obedience to a superiors order is already
obsolete. Fifty years ago, the Nazi war criminals tried to justify genocide against the Jews and their other
crimes against humanity by alleging they were merely following the orders of Adolf Hitler, their adored
fuehrer. However, the International Military
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Tribunal at Nuremberg in its Judgment dated October 1, 1946, forcefully debunked this Nazi argument and
clearly ruled that (t)he true test x x x is not the existence of the order but whether moral choice was in
fact possible.
Same; Same; Allowing the petitioners to walk deprives this Court of the moral authority to convict any
subaltern of the martial law dictator who was merely following orders.Resurrecting this internationally
discredit Nazi defense will, I respectfully submit, set a dangerous precedent in this country. Allowing the
petitioners to walk deprives this Court of the moral authority to convict any subaltern of the martial law
dictator who was merely following orders. This ludicrous defense can be invoked in all criminal cases
pending not only before this Court but more so before inferior courts, which will have no legal option but
to follow this Courts doctrine.
PETITIONS for review of a decision of the Sandiganbayan.

Siguion Reyna, Montecillo & Ongsiako for Luis A. Tabuena.
Estebal & Associates Law Firm for Adolfo M. Peralta.
The Solicitor General for respondents.
FRANCISCO, J.:
Through their separate petitions for review,1 Luis A. Tabuena and Adolfo M. Peralta (Tabuena and Peralta,
for short) appeal the Sandiganbayan decision dated October 12, 1990,2 as well as the Resolution dated
December 20, 19913
____________________________
1 Taken under Section 7 of P.D. 1606, as amended (the Sandiganbayan Law), Section 1, Rule XIX of the
Revised Rules of the Sandiganbayan and Rule 45 of the Rules of Court. The petitions were ordered
consolidated by the Court in an En Banc Resolution dated October 1, 1992.
2 Promulgated on October 22, 1990; Rendered by the First Division then composed of Justices
Garchitorena (ponente), Hermosisima (now Associate Justice of this Court) and Del Rosario.
3 Promulgated on January 10, 1992.
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denying reconsideration, convicting them of malversation under Article 217 of the Revised Penal Code.
Tabuena and Peralta were found guilty beyond reasonable doubt of having malversed the total amount of
P55 Million of the Manila International Airport Authority (MIAA) funds during their incumbency as General
Manager and Acting Finance Services Manager, respectively, of MIAA, and were thus meted the following
sentence:
(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the penalty of
imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum to twenty (20)
years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS
(P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport
Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from public office.
(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the penalty of
imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum, and twenty (20)
years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS
(P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport
Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from public office.
(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are each sentenced to
suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as
minimum and twenty (20) years of reclusion temporal as maximum and for each of them to pay separately
a fine of FIVE MILLION PESOS (P5,000,000.00) the amount malversed. They shall also reimburse jointly and
severally the Manila International Airport Authority the sum of FIVE MILLION PESOS (P5,000,000.00).
In addition, they shall both suffer the penalty of perpetual special disqualification from public office.
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A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Manager of MIAA, has
remained at large.
There were three (3) criminal cases filed (Nos. 11758, 11759 and 11760) since the total amount of P55
Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the principal
accusedhe being charged in all three (3) cases. The amended informations in criminal case Nos. 11758,
11759 and 11760 respectively read:
That on or about the 10th day of January, 1986, and for sometime subsequent thereto, in the City of
Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and
Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager,
respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds
belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash
accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each
other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take
and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by
applying for the issuance of a managers check for said amount in the name of accused Luis A. Tabuena
chargeable against MIAAs Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila
International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction
Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when
both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the
issuance of the above-mentioned managers check, accused Luis A. Tabuena encashed the same and
thereafter both accused misappropriated and converted the proceeds thereof to their personal use and
benefit, to the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
xxx
Pasay, Philippines and within the jurisdiction of this Honorable Court, accused Luis A.
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346
Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant
General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for
public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the
cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with
each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government,
take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds
by applying for the issuance of a managers check for said amount in the name of accused Luis A. Tabuena
chargeable against MIAAs Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila
International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction
Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when
both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the
issuance of the above-mentioned managers check, accused Luis A. Tabuena encashed the same and
thereafter both accused misappropriated and converted the proceeds thereof to their personal use and
benefit, to the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
xxx
Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Adolfo
M. Peralta, both public officers, being then the General Manager and Acting Manager, Financial Services
Department, respectively, of the Manila International Airport Authority (MIAA), and accountable for public
funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash
accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each
other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take
and misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA funds by applying for
the issuance of a managers check for said amount in the name of accused Luis A. Tabuena chargeable
against MIAAs Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International
Airport in Pasay City, purportedly as partial payment
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347
to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena
would personally take care of, when both accused well knew that there was no outstanding obligation of
MIAA in favor of PNCC, and after the issuance of the above-mentioned managers check, accused Luis A.
Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds
thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid
amount.
CONTRARY TO LAW.
Gathered from the documentary and testimonial evidence are the following essential antecedents:
Then President Marcos instructed Tabuena over the phone to pay directly to the presidents office and in
cash what the MIAA owes the Philippine National Construction Corporation (PNCC), to which Tabuena
replied, Yes, sir, I will do it. About a week later, Tabuena received from Mrs. Fe Roa Gimenez, then
private secretary of Marcos, a Presidential Memorandum dated January 8, 1986 (hereinafter referred to as
MARCOS Memorandum) reiterating in black and white such verbal instruction, to wit:
Office of the President of the Philippines
Malacaang
January 8, 1986
MEMO TO: The General Manager
Manila International Airport Authority
You are hereby directed to pay immediately the Philippine National Construction Corporation, thru this
Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAAs
account with said Company mentioned in a Memorandum of Minister Roberto Ongpin to this Office dated
January 7, 1985 and duly approved by this Office on February 4, 1985. Your immediate compliance is
appreciated.
(Sgd.) FERDINAND MARCOS.4
____________________________
4 Records, Vol. I, p. 26.

348
348
The January 7, 1985 memorandum of then Minister of Tradeand Industry Roberto Ongpin referred to in
the MARCOSMemorandum, reads in full:
MEMORANDUM
F o r : The President
F r o m : Minister Roberto V. Ongpin
D a t e : 7 January 1985
Subject : Approval of Supplemental Contracts and Request for
Partial Deferment of Repayment of PNCCs Advances
for MIA Development Project
May I request your approval of the attached recommendations of Minister Jesus S. Hipolito for eight (8)
supplemental contracts pertaining to the MIA Development Project (MIADP) between the Bureau of Air
Transport (BAT) and Philippine National Construction Corporation (PNCC), formerly CDCP, as follows:
1.
Supplemental Contract No. 12
Package Contract No. 2.

P11,106,600.95
2.
5,758,961.52
3.
Package Contract No. 2

4,586,610.80
4.
1,699,862.69
5.

233,561.22
6.

8,821,731.08
7.

6,110,115.75
8.
Package Contract No. II

16,617,655.49
(xerox copies only; original memo was submitted to the Office of the President on May 28, 1984)
In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly
CDCP, has accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusive of
accomplishments for the aforecited contracts. In accordance with contract provisions, outstanding
advances totalling P93.9 million are to be deducted from said billings which will leave a net amount due to
PNCC of only P4.5 million.
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349

At the same time, PNCC has potential escalation claims amounting to P99 million in the following stages of
approval/evaluation:
Approved by Price Escalation Committee

(PEC) but pended for lack of funds
P1.9 million
Endorsed by project consultants and

currently being evaluated by PEC
30.7 million
Submitted by PNCC directly to PEC

and currently under evaluation
66.5 million
Total
P99.1 million
There has been no funding allocation for any of the above escalation claims due to budgetary constraints.
The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due to
PNCC have not been paid, resulting in undue burden to PNCC due to additional cost of money to service its
obligations for this contract.
To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we
request for His Excellencys approval for a deferment of the repayment of PNCCs advances to the extent of
P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.5
million has been officially recognized by MIADP consultants but could not be paid due to lack of funding.
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds.
This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred
portion of the repayment of advances of P63.9 million.
(Sgd.) ROBERTO V. ONGPIN
Minister5
In obedience to President Marcos verbal instruction and memorandum, Tabuena, with the help of Dabao
and Peralta, caused the release of P55 Million of MIAA funds by means of three (3) withdrawals.
The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date signed
by Tabuena
____________________________
5 Records, Vol. I, pp. 119-120.

350
350
and Dabao requesting the PNB extension office at the MIAAthe depository branch of MIAA funds, to
issue a managers check for said amount payable to Tabuena. The check was encashed, however, at the
PNB Villamor Branch. Dabao and the cashier of the PNB Villamor branch counted the money after which,
Tabuena took delivery thereof. The P25 Million in cash were then placed in peerless boxes and duffle bags,
loaded on a PNB armored car and delivered on the same day to the office of Mrs. Gimenez located at
Aguado Street fronting Malacaang. Mrs. Gimenez did not issue any receipt for the money received.
Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25 Million,
made on January 16, 1986.
The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuenas cosignatory to the letter-request for a managers check for this amount. Peralta accompanied Tabuena to the
PNB Villamor branch as Tabuena requested him to do the counting of the P5 Million. After the counting,
the money was placed in two (2) peerless boxes which were loaded in the trunk of Tabuenas car. Peralta
did not go with Tabuena to deliver the money to Mrs. Gimenez office at Aguado Street. It was only upon
delivery of the P5 Million that Mrs. Gimenez issued a receipt for all the amounts she received from
Tabuena. The receipt, dated January 30, 1986, reads:
Malacaang
Manila
January 30, 1986

RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS (P55,000,000.00) as
of the following dates:
Jan. 10

P25,000,000.00
Jan. 16
25,000,000.00
Jan. 30
5,000,000.00
(Sgd.) Fe Roa-Gimenez
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351
The disbursement of the P55-Million was, as described by Tabuena and Peralta themselves, out of the
ordinary and not based on the normal procedure. Not only were there no vouchers prepared to support
the disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt for the P55 Million was
presented. Defense witness Francis Monera, then Senior Assistant Vice President and Corporate
Comptroller of PNCC, even affirmed in court that there were no payments made to PNCC by MIAA for the
months of January to June of 1986.
The position of the prosecution was that there were no outstanding obligations in favor of PNCC at the
time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena and Peralta, in
short, was that they acted in good faith. Tabuena claimed that he was merely complying with the MARCOS
Memorandum which ordered him to forward immediately to the Office of the President P55 Million in cash
as partial payment of MIAAs obligations to PNCC, and that he (Tabuena) was of the belief that MIAA
indeed had liabilities to PNCC. Peralta for his part shared the same belief and so he heeded the request of
Tabuena, his superior, for him (Peralta) to help in the release of P5 Million.
With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their
conviction, Tabuena and Peralta now set forth a total of ten (10) errors6 committed
____________________________
6 Tabuena avers that the Sandiganbayan:

A
Erred and committed reviewable error in ruling that petitioners withdrawal of the P55 Million was not for
a lawful purpose or for a lawful debt. In the process, the Sandiganbayan clearly ignored several pieces of
evidence submitted by petitioner, and instead misapprehended the full import of the Ongpin
Memorandum (Exh. 2, as attachment of Annex I), to which the Marcos order to pay referred (Exh. 1,
attachment to Annex I). In so concluding, the Sandiganbayan laid its conclusions open to review as its
judgment is in effect based on misapprehension of facts (Cruz vs. Sosing, L-4875, Novem
352
352
by the Sandiganbayan for this Courts consideration. It appears, however, that at the core of their plea that
we acquit them are the following:
_______________
ber 27, 1953); and in ignoring several material pieces of evidence abused its discretion (Buyco vs. People,
51 OG 7927).
B
Erred and committed reviewable error in ruling that the Ongpin Memorandum (Exh. 2 and 2-A, See
Annex I), and the Marcos approval thereof (Exh. 1, id.) did not support the withdrawal and payment of
monies by petitioner. In so concluding, the Sandiganbayan again clearly misapprehended the Ongpin and
Marcos Memoranda, and the ledger of PNCC.
C
Erred and committed reviewable error in ruling that petitioner was in bad faith when he complied with the
presidential order to pay; in thus concluding the Sandiganbayan indulged in speculations and conjectures
(Joaquin vs. Navarro, 93 Phil. 257), or otherwise went beyond the issues (Evangelista vs. Alco, L-11139,
April 23, 1958); the Sandiganbayan also erred in not ruling that petitioner is entitled to justifying
circumstance under Par. 6, Art. 11, and/or the exempting circumstance provided under Pars. 5 and 6 of Art.
12 of the Revised Penal Code.
D
Erred and committed reviewable error in ruling that petitioner was unable to account for the money. In so
doing, the Sandiganbayan contradicted the ruling in U.S. vs. Catolico, 18 Phil. 504. It also erred in holding
petitioner accountable for acts not charged in the amended informations, and in so doing convicted him
without jurisdiction.
E
Erred and committed reviewable error in ruling that petitioner was not entitled to immunity as provided by
Sec. 17, Article VII of the 1973 Constitution. The Sandiganbayan therefore had no jurisdiction to try the
cases.
F
Erred and committed reviewable error in ruling that proof beyond reasonable doubt of petitioners guilt
was submitted by the prosecution. In so doing, the Sandiganbayan wrong
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353
1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and
2) they acted in good faith.
Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional
malversation, as the amended informations commonly allege that:
x x x accused x x x conspiring, confederating and confabulating with each other, did then and there
wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriated the
amount of x x x.
But it would appear that they were convicted of malversation by negligence. In this connection, the Courts
attention is directed to p. 17 of the December 20, 1991 Resolution
____________________________
ly shifted the burden of proof and denied petitioner the benefits of the presumption of innocence, of Secs.
1 and 2, Rule 131, and the absence of demand under the last paragraph of Art. 217 of the Revised Penal
Code.
Peralta for his part claim that:
1. Respondent court grossly and seriously erred in convicting herein accused despite the absence of proof
that he allegedly converted the funds withdrawn to his own personal benefit as charged in the information
in glaring violation of his basic constitutional right to be presumed innocent.
2. Respondent court likewise grossly and seriously erred in convicting herein accused for a crime not
charged in the information again in violation of another constitutional right, that is the right to be informed
of the accusation or right to due process.
3. Respondent court also grossly erred in convicting herein accused on the basis of mere assumptions,
conjectures and inferences devoid of factual basis in another serious and glaring violation of his right to be
presumed innocent until his guilt is established by proof beyond reasonable doubt.
4. Respondent court finally erred in refusing to recognize the applicability of the immunity provision
embodied in the Constitution and of the justifying circumstance of obedience to a lawful order as valid
defenses in this case.
354
354
(denying Tabuenas and Peraltas motion for reconsideration) wherein the Sandiganbayan said:
x x x
xxx
xxx
On the contrary, what the evidence shows is that accused Tabuena delivered the P55 Million to people
who were not entitled thereto, either as representatives of MIAA or of the PNCC.
It proves that Tabuena had deliberately consented or permitted through negligence or abandonment,
some other person to take such public funds. Having done so, Tabuena, by his own narration, has
categorically demonstrated that he is guilty of the misappropriation or malversation of P55 Million of
public funds. (Italics supplied.)
To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue that:
1) While malversation may be committed intentionally or by negligence, both modes cannot be committed
at the same time.
2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where the
amended informations charged them with intentional malversation.7
3) Their conviction of a crime different from that charged violated their constitutional right to be informed
of the accusation.8
We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is Cabello v.
Sandiganbayan9 where the Court passed upon similar protestations raised by therein accused-petitioner
Cabello whose conviction for the same crime of malversation was affirmed, in this wise:
x x x even on the putative assumption that the evidence against petitioner yielded a case of malversation
by negligence but the information was for intentional malversation, under the circum____________________________
7 Citing PNB v. Tugab, 66 Phil. 583 and People v. Pascua, 71 O.G. 2474.
8 Citing Tubb v. People, 101 Phil. 114.
9 197 SCRA 94.
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stances of this case his conviction under the first mode of misappropriation would still be in order.
Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the
offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the
mode proved, the same offense of malversation is involved and conviction thereof is proper. x x x.
In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or intentional
falsification can validly be convicted of falsification through negligence, thus:
While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs. Justice of
the Peace of Bacolor, G.R. No. L-6641, July 28, 1995, but a distinct crime in our Penal Code, designated as a
quasi offense in our Penal Code, it may however be said that a conviction for the former can be had under
an information exclusively charging the commission of a willful offense, upon the theory that the greater
includes the lesser offense. This is the situation that obtains in the present case. Appellant was charged
with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in
effecting the falsification which made possible the cashing of the checks in question, appellant did not act
with criminal intent but merely failed to take proper and adequate means to assure himself of the identity
of the real claimants as an ordinary prudent man would do. In other words, the information alleges acts
which charge willful falsification but which turned out to be not willful but negligent. This is a case covered
by the rule when there is a variance between the allegation and proof, and is similar to some of the cases
decided by this Tribunal.
xxx
Moreover, Section 5, Rule 116, of the Rules of Court does not require that all the essential elements of the
offense charged in the information be proved, it being sufficient that some of said essential elements or
ingredients thereof be established to constitute the crime proved. x x x.
The fact that the information does not allege that the falsification was committed with imprudence is of
no moment for here this deficiency appears supplied by the evidence submitted by appellant himself and
the result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it
would be incongruous to allege at the same time that it was committed with imprudence for a charge of
criminal intent is incompatible with the concept of negligence.
356
356
Subsequently, we ruled in People vs. Consigna, et al., that the aforestated rationale and arguments also
apply to the felony of malversation, that is, that an accused charged with willful malversation, in an
information containing allegations similar to those involved in the present case, can be validly convicted of
the same offense of malversation through negligence where the evidence sustains the latter mode of
perpetrating the offense.
Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for
malversation for it would negate criminal intent on the part of the accused. Thus, in the two (2) vintage,
but significant malversation cases of US v. Catolico10 and US v. Elvia,11 the Court stressed that:
To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a
criminal intent, or by such negligence or indifference to duty or to consequences as, in law, is equivalent to
criminal intent. The maxim is actus non facit reum, nisi mens sit reaa crime is not committed if the mind
of the person performing the act complained of is innocent.
The rule was reiterated in People v. Pacana,12 although this case involved falsification of public
documents and estafa:
Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi
mens sit rea. There can be no crime when the criminal mind is wanting.
American jurisprudence echoes the same principle. It adheres to the view that criminal intent in
embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered
into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is no
wrongful purpose.13 The accused may thus always intro____________________________
10 18 Phil. 504.
11 24 Phil. 230.
12 47 Phil. 48.
13 Lewis v. People, 99 Colo. 102, 60 Pac. [2d] 1089; Lawver v. State, 221 Ind. 101, 46 N.E. [2d] 592; State v.
Schmidt, 72 N. Dak.
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357
duce evidence to show he acted in good faith and that he had no intention to convert.14 And this, to our
mind, Tabuena and Peralta had meritoriously shown.
In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum,
we are swayed to give credit to his claim of having caused the disbursement of the P55 Million solely by
reason of such memorandum. From this premise flows the following reasons and/or considerations that
would buttress his innocence of the crime of malversation.
First, Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS
Memorandum required him to do. He could not be faulted if he had to obey and strictly comply with the
presidential directive, and to argue otherwise is something easier said than done. Marcos was undeniably
Tabuenas superiorthe former being then the President of the Republic who unquestionably exercised
control over government agencies such as the MIAA and PNCC.15 In other words, Marcos had a say in
matters involving inter-government agency affairs and transactions, such as for instance, directing
payment of liability of one entity to another and the manner in which it should be carried out. And as a
recipient of such kind of a directive coming from the highest official of the land no less, good faith should
be read on Tabuenas compliance, without hesitation nor any question, with the MARCOS Memorandum.
Tabuena therefore is entitled to the justifying circumstance of Any person who acts in obedience to an
order issued by a superior for some lawful purpose.16 The subordinate-superior relationship between
Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained in the MARCOS
Memorandum, as it has
____________________________
719, 10 N.W. [2d] 868. Underhills Criminal Evidence, 5th Ed., Book 3, p. 1421.
14 Federal Lindgren v. United States, 260 Fed. 772. Underhill, ibid.
15 Section 8, Article VII of the 1973 Constitution provides:
The President shall have control of all ministries.
16 No. 6, Article II, Revised Penal Code.
358
358

for its purpose partial payment of the liability of one government agency (MIAA) to another (PNCC).
However, the unlawfulness of the MARCOS Memorandum was being argued, on the observation, for
instance, that the Ongpin Memo referred to in the presidential directive reveals a liability of only about
P34.5 Million. The Sandiganbayan in this connection said:
Exhibits 2 and 2-a (pages 1 and 2 of the memorandum of Min. Ongpin to the President dated January
7, 1985) were mainly:
a.) for the approval of eight Supplemental Contracts; and
b.) a request for partial deferment of payment by PNCC for advances made for the MIAA Development
Project, while at the same time recognizing some of the PNCCs escalation billings which would result in
making payable to PNCC the amount of P34.5 million out of existing MIAA Project funds.
Thus:
x x x
request for His Excellencys approval for a deferment of repayment of PNCCs advances to the extent of
million has been officially recognized by MIADP consultants but could not be paid due to lack of funding.
While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to MIAA to the
extent of P99.1 million (Exhibit 2a), a substantial portion thereof was still in the stages of evaluation and
approval, with only P32.6 million having been officially recognized by the MIADP consultants.
If any payments were, therefore, due under this memo for Min. Ongpin (upon which President Marcos
Memo was based) they would only be for a sum of up to P34.5 million.17
_______________
17 Sandiganbayan Decision, pp. 37-38.

359

359
xxx
xxx
xxx
V. Pres. Marcos order to Tabuena dated January 8, 1986 baseless.

Not only was Pres. Marcos Memo (Exhibit 1) for Tabuena to pay P55 million irrelevant, but it was
actually baseless.
This is easy to see.
Exhibit 1 purports to refer itself to the Ongpin Memorandum (Exhibit 2, to 2-a); Exhibit 1, however,
speaks of P55 million to be paid to the PNCC while Exhibit 2 authorized only P34.5 million. The order to
withdraw the amount of P55 million exceeded the approved payment of P34.5 million by P20.5 million.
Min. Ongpins Memo of January 7, 1985 could not therefore serve as a basis for the Presidents order to
withdraw P55 million.18
Granting this to be true, it will not nevertheless affect Tabuenas good faith so as to make him criminally
liable. What is more significant to consider is that the MARCOS Memorandum is patently legal (for on its
face it directs payment of an outstanding liability) and that Tabuena acted under the honest belief that the
P55 million was a due and demandable debt and that it was just a portion of a bigger liability to PNCC. This
belief is supported by defense witness Francis Monera who, on direct examination, testified that:
ATTY. ANDRES
Q
Can you please show us in this Exhibit 7 and 7-a where it is indicated the receivables from MIA as of
December 31, 1985?
A
As of December 31, 1985, the receivables from MIA is shown on page 2, marked as Exhibit 7-a, sir,
P102,475,392.35.
xxx
xxx
x x x.19
ATTY. ANDRES
Q
Can you tell us, Mr. Witness, what these obligations represent?
____________________________
18 Sandiganbayan Decision, p. 41.

19 TSN, March 17, 1989, p. 7; Vol. III, Records, p. 409.
360
360

WITNESS
A
These obligations represent receivables on the basis of our billings to MIA as contract-owner of the project
that the Philippine National Construction Corporation constructed. These are billings for escalation mostly,
sir.
Q
What do you mean by escalation?
A
Escalation is the component of our revenue billings to the contract-owner that are supposed to take care
of price increases, sir.
xxx
xxx
x x x.20
ATTY. ANDRES
Q
When you said these are accounts receivable, do I understand from you that these are due and
demandable?
A
Yes, sir.21
Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the
subordinate is not liable, for then there would only be a mistake of fact committed in good faith.22 Such is
the ruling in Nassif v. People23 the facts of which, in brief, are as follows:
Accused was charged with falsification of commercial document. A mere employee of R.J. Campos, he
inserted in the commercial document alleged to have been falsified the word sold by order of his
principal. Had he known or suspected that his principal was committing an improper act of falsification, he
would be liable either as a co-principal or as an accomplice. However, there being no malice on his part, he
was exempted from criminal liability as he was a mere employee following the orders of his principal.24
____________________________

22 Gregorio, Fundamentals of Criminal Law, 1988 8th Ed., p. 59.

23 78 Phil. 67.
24 Padilla, Revised Penal Code, Book One, Vol. I, 7th Ed. 1974., p. 248. See also: Aquino, The Revised Penal
Code, Vol. I, 1987 Ed., p. 207.
In the very words of the Court in the Nassif case:
El mero acto de escribir un empleado de la categoria del recurrente, en el Exhibit B, la palabra sold, por
orden de su
361

361
Second. There is no denying that the disbursement, which Tabuena admitted as out of the ordinary, did
not comply with certain auditing rules and regulations such as those pointed out by the Sandiganbayan, to
wit:
a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00 should
be made by check (Basic Guidelines for Internal Control dated January 31, 1977 issued by COA)
b) payment of all claims against the government had to be supported with complete documentation (Sec.
4, P.D. 1445, State Auditing Code of the Philippines). In this connection, the Sandiganbayan observed that:
There were no vouchers to authorize the disbursements in question. There were no bills to support the
disbursement. There were no certifications as to the availability of funds for an unquestionably staggering
sum of P55 Million.25
c) failure to protest (Sec. 106, P.D. 1445)
But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury of
time to observe all auditing procedures of disbursement considering the fact that the MARCOS
Memorandum enjoined his immediate compliance with the directive that he forward to the Presidents
Office the P55 Million in cash. Be that as it may, Tabuena surely cannot escape responsibility for such omis____________________________
principal que le paga el sueldo, sin prueba alguna de dolo o malicia de su parte, no crea por si solo ninguna
responsabilidad. Si antes de insertar dicha palabra en el referido documento, o al tiempo de hacerlo, el
recurrente hubiese sabido o sospechado de alguna manera que era para justificar un acto impropio de su
principal, cosa que, pro cierto, no se ha probado, ni puede desprenderse de la decision impugnada,
indudablemente podria hacersele responsable a dicho recurrente, de la falsificacion cometida, si no como
coautor, por lo menos como complice. Todo esto y la circunstancia justificativa invocada por el recurrente,
eximen a este de toda responsabilidad.
25 Decision, p. 45.
362
362
sion. But since he was acting in good faith, his liability should only be administrative or civil in nature, and
not criminal. This follows the decision in Villacorta v. People26 where the Court, in acquitting therein
accused municipal treasurer of Pandan, Catanduanes of malversation after finding that he incurred a
shortage in his cash accountability by reason of his payment in good faith to certain government personnel
of their legitimate wages, leave allowances, etc., held that:
Nor can negligence approximating malice or fraud be attributed to petitioner. If he made wrong
payments, they were in good faith mainly to government personnel, some of them working at the
provincial auditors and the provincial treasurers offices. And if those payments ran counter to auditing
rules and regulations, they did not amount to a criminal offense and he should only be held
administratively or civilly liable.
Likewise controlling is US v. Elvia27 where it was held that payments in good faith do not amount to
criminal appropriation, although they were made with insufficient vouchers or improper evidence. In fact,
the Dissenting Opinions reference to certain provisions in the revised Manual on Certificate of Settlement
and Balancesapparently made to underscore Tabuenas personal accountability, as agency head, for
MIAA fundswould all the more support the view that Tabuena is vulnerable to civil sanctions only.
Sections 29.2 and 29.5 expressly and solely speak of civilly liable to describe the kind of sanction
imposable on a superior officer who performs his duties with bad faith, malice or gross negligence and
on a subordinate officer or employee who commits willful or negligent act x x x which are contrary to law,
morals, public policy and good customs even if he acted under order or instructions of his superiors.
Third. The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the
P55 Million when he delivered the same to Mrs. Gimenez and not to the
____________________________
26 145 SCRA 435.

27 Supra.
363

363
PNCC, proceeding from the following definitions/concepts of conversion:
Conversion, as necessary element of offense of embezzlement, being the fraudulent appropriation to
ones own use of anothers property which does not necessarily mean to ones personal advantage but
every attempt by one person to dispose of the goods of another without right as if they were his own is
conversion to his own use. (Terry v. Water Improvement Dist. No. 5 of Tulsa County, 64 p. 2d 904, 906,
179 Okl. 106)
At p. 207, Words and Phrases,
Permanent Edition 9A.
Conversion is any interference subversive of the right of the owner of personal property to enjoy and
control it. The gist of conversion is the usurpation of the owners right of property, and not the actual
damages inflicted. Honesty of purpose is not a defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)
At page 168, id.
xxx
xxx
xxx
The words convert and misappropriate connote an act of using or disposing of anothers property as if it
were ones own. They presuppose that the thing has been devoted to a purpose or use different from that
agreed upon. To appropriate to ones own use includes not only conversion to ones personal advantage
but every attempt to dispose of the property of another without right.
People vs. Webber, 57
O.G. p. 2933, 2937
By placing them at the disposal of private persons without due authorization or legal justification, he
became as guilty of malversation as if he had personally taken them and converted them to his own use.
People vs. Luntao, 50
O.G. p. 1182, 118328
We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena to pay
immediately the Phil_______________
28 Sandiganbayan Decision, p. 50.

364
364
ippine National Construction Corporation, thru this office, the sum of FIFTY FIVE MILLION . . . ., and that
was what Tabuena precisely did when he delivered the money to Mrs. Gimenez. Such delivery, no doubt, is
in effect delivery to the Office of the President inasmuch as Mrs. Gimenez was Marcos secretary then.
Furthermore, Tabuena had reasonable ground to believe that the President was entitled to receive the P55
Million since he was certainly aware that Marcos, as Chief Executive, exercised supervision and control
over government agencies. And the good faith of Tabuena in having delivered the money to the Presidents
office (thru Mrs. Gimenez), in strict compliance with the MARCOS Memorandum, was not at all affected
even if it later turned out that PNCC never received the money. Thus, it has been said that:
Good faith in the payment of public funds relieves a public officer from the crime of malversation.
xxx
xxx
xxx
Not every unauthorized payment of public funds is malversation. There is malversation only if the public
officer who has custody of public funds should appropriate the same, or shall take or misappropriate or
shall consent, or through abandonment or negligence shall permit any other person to take such public
funds. Where the payment of public funds has been made in good faith, and there is reasonable ground to
believe that the public officer to whom the fund had been paid was entitled thereto, he is deemed to have
acted in good faith, there is no criminal intent, and the payment, if it turns out that it is unauthorized,
renders him only civilly but not criminally liable.29
Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to siphonout public money for the personal benefit of those then in power, still, no criminal liability can be imputed
to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the execution of the
MARCOS Memorandum. Nor is there
____________________________
29 People v. Fabian, No. 10790-CR, March 12, 1973, 69 O.G. 12150, No. 53.
365

365
proof that he profited from the felonious scheme. In short, no conspiracy was established between
Tabuena and the real embezzler/s of the P55 Million. In the cases of US v. Acebedo30 and Ang v.
Sandiganbayan,31 both also involving the crime of malversation, the accused therein were acquitted after
the Court arrived at a similar finding of non-proof of conspiracy. In Acebedo, therein accused, as
municipal president of Palo, Leyte, was prosecuted for and found guilty by the lower court of malversation
after being unable to turn over certain amounts to the then justice of the peace. It appeared, however,
that said amounts were actually collected by his secretary Crisanto Urbina. The Court reversed Acebedos
conviction after finding that the sums were converted by his secretary Urbina without the knowledge and
participation of Acebedo. The Court said, which we herein adopt:
No conspiracy between the appellant and his secretary has been shown in this case, nor did such
conspiracy appear in the case against Urbina. No guilty knowledge of the theft committed by the secretary
was shown on the part of the appellant in this case, nor does it appear that he in any way participated in
the fruits of the crime. If the secretary stole the money in question without the knowledge or consent of
the appellant and without negligence on his part, then certainly the latter can not be convicted of
embezzling the same money or any part thereof.32
In Ang, accused-petitioner, as MWSS bill collector, allowed part of his collection to be converted into
checks drawn in the name of one Marshall Lu, a non-customer of MWSS, but the checks were subsequently
dishonored. Ang was acquitted by this Court after giving credence to his assertion that the conversion of
his collections into checks were thru the machinations of one Lazaro Guinto, another MWSS collector more
senior to him. And we also adopt the Courts observation therein, that:
____________________________
30 18 Phil. 428.
31 197 SCRA 262.
32 Supra, p. 431.
366
366
The petitioners alleged negligence in allowing the senior collector to convert cash collections into checks
may be proof of poor judgment or too trusting a nature insofar as a superior officer is concerned but there
must be stronger evidence to show fraud, malice, or other indicia of deliberateness in the conspiracy
cooked up with Marshall Lu. The prosecution failed to show that the petitioner was privy to the
conspirational scheme. Much less is there any proof that he profited from the questioned acts. Any
suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS, must be converted into
evidence before conviction beyond reasonable doubt may be imposed.33
The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peralta in
relation to the P5 Million for which he is being held accountable, i.e., he acted in good faith when he, upon
the directive of Tabuena, helped facilitate the withdrawal of P5 Million of the P55 Million of the MIAA
funds.
This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly executed
order. Indeed, compliance to a patently lawful order is rectitude far better than contumacious
disobedience. In the case at bench, the order emanated from the Office of the President and bears the
signature of the President himself, the highest official of the land. It carries with it the presumption that it
was regularly issued. And on its face, the memorandum is patently lawful for no law makes the payment of
an obligation illegal. This fact, coupled with the urgent tenor for its execution constrains one to act swiftly
without question. Obedientia est legis essentia. Besides, the case could not be detached from the realities
then prevailing. As aptly observed by Mr. Justice Cruz in his dissenting opinion:
We reject history in arbitrarily assuming that the people were free during the era and that the judiciary
was independent and fearless. We know it was not; even the Supreme Court at that time was not free. This
is an undeniable fact that we can not just blink away. Insisting on the contrary would only make our
sincerity sus____________________________
33 Supra, p. 273.
367

367
pect and even provoke scorn for what can only be described as our incredible credulity.34
But what appears to be a more compelling reason for their acquittal is the violation of the accuseds basic
constitutional right to due process. Respect for the Constitution, to borrow once again Mr. Justice Cruzs
words, is more important than securing a conviction based on a violation of the rights of the accused.35
While going over the records, we were struck by the way the Sandiganbayan actively took part in the
questioning of a defense witness and of the accused themselves. Tabuena and Peralta may not have raised
this as an error, there is nevertheless no impediment for us to consider such matter as additional basis for
a reversal since the settled doctrine is that an appeal throws the whole case open to review, and it
becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed
from whether they are made the subject of assignments of error or not.36
Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the testimony of
Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, Atty. Andres
asked sixteen (16) questions on direct examination. Prosecutor Viernes only asked six (6) questions on
cross-examination in the course of which the court interjected a total of twenty-seven (27) questions
(more than four times Prosecutor Viernes questions and even more than the combined total of direct and
cross-examination questions asked by the counsels). After the defense opted not to conduct any re-direct
examination, the court further asked a total of ten (10) questions.37 The trend intensified during
____________________________
34 Development Bank of the Philippines v. Pundogar, 218 SCRA 118, 163.

35 People v. Exala, Dissenting Opinion, 221 SCRA 494, 503.
36 People v. Olfindo, 47 Phil. 1, citing U.S. v. Abijan, 1 Phil. 83; People v. Borbano, 76 Phil. 703; Perez v.
Court of Appeals, 127 SCRA 636.
37 See TSN of March 17, 1989, Records, Vol. III, pp. 408-423.
368
368
Tabuenas turn on the witness stand. Questions from the court after Tabuenas cross-examination totalled
sixty-seven (67).38 This is more than five times Prosecutor Viernes questions on cross-examination (14),
and more than double the total of direct examination and cross-examination questions which is thirty-one
(31) [17 direct examination questions by Atty. Andres plus 14 cross-examination questions by Prosecutor
Viernes]. In Peraltas case, the Justices, after his cross-examination, propounded a total of forty-one (41)
questions.39
But more importantly, we note that the questions of the court were in the nature of cross examinations
characteristic of confrontation, probing and insinuation.40 (The insinuating type was best exemplified in
one question addressed to Peralta, which will be underscored.) Thus we beg to quote in length from the
transcripts pertaining to witness Monera, Tabuena and Peralta. (Questions from the Court are marked with
asterisks and italicized for emphasis.)
(MONERA)
(As a background, what was elicited from his direct examination is that the PNCC had receivables from
MIAA totalling P102,475,392.35, and although such receivables were largely billings for escalation, they
were nonetheless all due and
____________________________
38 See pp. 1-27 TSN of May 2, 1990, Records, Vol. III, pp. 439-465.
39 See pp. 32-53 of TSN, of May 2, 1990, Records, Vol. III, pp. 470-490.
40 Confrontation.Confrontation consists of confronting the witness with damaging facts which he cannot
deny and which are inconsistent with his evidence. It is a destructive technique, but when it fails to destroy
it may still succeed in weakening.
Probing.Probing consists of inquiring thoroughly into the details of the story to discover the flaws.
Insinuation.Insinuation consists of leading or forcing the witness by adding facts at one point and
modifying details at another, to give a version of his evidence which is more favorable to the other side.
The Technique of Advocacy, by John H. Munkman, pp. 66-67; p. 75; pp. 91-92.
369

369
demandable. What follows are the cross-examination of Prosecutor Viernes and the court questions).
CROSS-EXAMINATION BY PROS. VIERNES
Q
You admit that as shown by these Exhibits 7 and 7-a, the items here represent mostly escalation
billings. Were those escalation billings properly transmitted to MIA authorities?
A
I dont have the documents right now to show that they were transmitted, but I have a letter by our
President, Mr. Olaguer, dated July 6, 1988, following up for payment of the balance of our receivables from
MIA, sir.
*AJ AMORES
*Q
This matter of escalation costs, is it not a matter for a conference between the MIA and the PNCC for the
determination as to the correct amount?
A
I agree, your Honor. As far as we are concerned, our billings are what we deemed are valid receivables.
And, in fact, we have been following up for payment.
*Q
This determination of the escalation costs was it accepted as the correct figure by MIA?
A
I dont have any document as to the acceptance by MIA, your Honor, but our company was able to get a
document or a letter by Minister Ongpin to President Marcos, dated January 7, 1985, with a marginal note
or approval by former President Marcos.
*PJ GARCHITORENA
*Q
Basically, the letter of Mr. Ongpin is to what effect?
A
The subject matter is approval of the supplementary contract and request for partial deferment of
payment for MIA Development Project, your Honor.
*Q
It has nothing to do with the implementation of the escalation costs?
A
The details show that most of the accounts refer to our escalations, your Honor.
*Q
Does that indicate the computation for escalations were already billed or you do not have any proof of
that?
A
Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpin appears to have
confirmed our billings to MIA, your Honor.
370
370
*AJ AMORES
*Q
Were there partial payments made by MIA on these escalation billings?
A
Based on records available as of today, the P102 million was reduced to about P56.7 million, if my
recollection is correct, your Honor.
*PJ GARCHITORENA
*Q
Were the payments made before or after February 1986, since Mr. Olaguer is a new entrant to your
company?
WITNESS
A
The payments were made after December 31, 1985 but I think the payments were made before the entry
of our President, your Honor. Actually, the payment was in the form of: assignments to State Investment of
about P23 million; and then there was P17.8 million application against advances made or formerly given;
and there were payments to PNCC of about P2.6 million and there was a payment for application on
withholding and contractual stock of about P1 million; that summed up to P44.4 million all in all. And you
deduct that from the P102 million, the remaining balance would be about P57 million.
*PJ GARCHITORENA
*Q
What you are saying is that, for all the payments made on this P102 million, only P2 million had been
payments in cash?
A
Yes, your Honor.
*Q
The rest had been adjustments of accounts, assignments of accounts, or offsetting of accounts?
A
Yes, your Honor.
*Q
This is as of December 31, 1985?
A
The P102 million was as of December 31, 1985, your Honor, but the balances is as of August 1987.
*Q
We are talking now about the P44 million, more or less, by which the basic account has been reduced.
These reductions, whether by adjustment or assignment or actual delivery of cash, were made after
December 31, 1985?
WITNESS
A
Yes, your Honor.
*Q
And your records indicate when these adjustments and payments were made?
A
Yes, your Honor.

371

371
*AJ AMORES
*Q
You said there were partial payments before of these escalation billings. Do we get it from you that there
was an admission of these escalation costs as computed by you by MIA, since there was already partial
payments?
A
Yes, your Honor.
*Q
How were these payments made before February 1986, in cash or check, if there were payments made?
A
The P44 million payments was in the form of assignments, your Honor.
*PJ GARCHITORENA
*Q
The question of the Court is, before December 31, 1985, were there any liquidations made by MIA against
these escalation billings?
A
I have not reviewed the details of the record, your Honor. But the ledger card indicates that there were
collections on page 2 of the Exhibit earlier presented. It will indicate that there were collections shown by
credits indicated on the credit side of the ledger.
*AJ AMORES
*Q
Your ledger does not indicate the manner of giving credit to the MIA with respect to the escalation billings.
Was the payment in cash or just credit of some sort before December 31, 1985?
A
Before December 31, 1985, the reference of the ledger are official receipts and I suppose these were
payments in cash, your Honor.
*Q
Do you know how the manner of this payment in cash was made by MIA?
A
I do not know, your Honor.
*PJ GARCHITORENA
*Q
But your records will indicate that?
A
The records will indicate that, your Honor.
*Q
Except that you were not asked to bring them?
A
Yes, your Honor.
*Q
At all events, we are talking of settlement or partial liquidation prior to December 31, 1985?
A
Yes, your Honor.
*PJ GARCHITORENA
*Q
Subsequent thereto, we are talking merely of about P44 million?
A
Yes, your Honor, as subsequent settlements.
372
372
*Q
After December 31, 1985?
A
Yes, your Honor.
*Q
And they have liquidated that, as you described it, by way of assignments, adjustments, by offsets and by
P2 million of cash payment?
A
Yes, your Honor.
*AJ AMORES
*Q
Your standard operating procedure before December 31, 1985 in connection with or in case of cash
payment, was the payment in cash or check?
A
I would venture to say it was by check, your Honor.
*Q
Which is the safest way to do it?
A
Yes, your Honor.
*PJ GARCHITORENA
*Q
And the business way?
A
Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q
You mentioned earlier about the letter of former Minister Ongpin to the former President Marcos, did you
say that that letter concurs with the escalation billings reflected in Exhibits 7 and 7-a?
WITNESS
A
The Company or the management is of the opinion that this letter, a copy of which we were able to get, is
a confirmation of the acceptance of our billings, sir.
*Q
This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of escalation billings as
appearing in Exhibit 7 are dated June 30, 1985, would you still insist that the letter of January 1985
confirms the escalation billings as of June 1985?
A
The entries started June 30 in the ledger card. And as of December 31, 1985, it stood at P102 million after
payments were made as shown on the credit side of the ledger. I suppose that the earlier amount, before
the payment was made, was bigger and therefore I would venture to say that the letter of January 7, 1985
contains an amount that is part of the original contract account. What are indicated in the ledger are
escalation billings.
*PJ GARCHITORENA
*Q
We are talking about the letter of Minister Ongpin?
373

373
A
The letter of Minister Ongpin refers to escalation billings, sir.
*Q
As of what date?
A
The letter is dated January 7, 1985, your Honor.
PJ GARCHITORENA
Continue.
PROS. VIERNES
Q
In accordance with this letter marked Exhibit 7 and 7-a, there were credits made in favor of MIA in July
and November until December 1985. These were properly credited to the account of MIA?
WITNESS
A
Yes, sir.
Q
In 1986, from your records as appearing in Exhibit 7-a, there were no payments made to PNCC by MIA
for the months of January to June 1986?
A
Yes, sir.
Q
And neither was the amount of P22 million remitted to PNCC by MIA?
A
Yes, sir.
PROS VIERNES
That will be all, your Honor.

PJ GARCHITORENA
Redirect?
ATTY. ANDRES
No redirect, your Honor.

*PJ GARCHITORENA
Questions from the Court.
*AJ AMORES
*Q
From your records, for the month of January 1986, there was no payment of this escalation account by
MIA?
WITNESS
A
Yes, your Honor. But on page 2 of Exhibit 7 there appears an assignment of P23 million, that was on
September 25, 1986.
*Q
But that is already under the present administration?
A
After February 1986, your Honor.
*Q
But before February, in January 1986, there was no payment whatsoever by MIA to PNCC?
A
Per record there is none appearing, your Honor.
374
374
*PJ GARCHITORENA
*Q
The earliest payment, whether by delivery of cash equivalent or of adjustment of account, or by
assignment, or by offsets, when did these payments begin?
A
Per ledger card, there were payments in 1985, prior to December 31, 1985, your Honor.
*Q
After December 31, 1985?
A
There appears also P23 million as credit, that is a form of settlement, your Honor.
*Q
This is as of September 25?
A
Yes, your Honor. There were subsequent settlements. P23 million is just part of the P44 million.
*Q
And what you are saying is that, PNCC passed the ac count to State Investment. In other words, State
Investment bought the credit of MIA?
A
Yes, your Honor.
*Q
And the amount of credit or receivables sold by PNCC to State Investment is P23 million?
A
Yes, your Honor.
*Q
Is there a payback agreement?
A
I have a copy of the assignment to State Investment but I have not yet reviewed the same, your Honor.
*AJ AMORES
*Q
As of now, is this obligation of MIA, now NAIA, paid to PNCC?
A
There is still a balance of receivables from MIA as evidenced by a collection letter by our President dated
July 6, 1988, your Honor. The amount indicated in the letter is P55 million.
PJ GARCHITORENA
Any clarifications you would like to make Mr. Estebal?

ATTY. ESTEBAL
None, your Honor.

PJ GARCHITORENA
Mr. Viernes?
PROS VIERNES
No more, your Honor.

375

375
PJ GARCHITORENA
The witness is excused. Thank you very much Mr. Monera. x x x.41
(TABUENA)
(In his direct examination, he testified that he caused the preparation of the checks totalling P55 Million
pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in cash on the three
(3) dates as alleged in the information to Marcos private secretary Mrs. Jimenez at her office at Aguado
Street, who thereafter issued a receipt. Tabuena also denied having used the money for his own personal
use.)
CROSS-EXAMINATION BY PROS. VIERNES
Q
The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were delivered on how many
occasions?
A
Three times, sir.
Q
And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez?
A
Yes, sir.
Q
It was only on January 30, 1986 that this receipt Exhibit 3 was issued by Mrs. Gimenez?
A
Yes, sir.
*PJ GARCHITORENA
*Q
So January 30 is the date of the last delivery?
A
I remember it was on the 31st of January, your Honor. What happened is that, I did not notice the date
placed by Mrs. Gimenez.
*Q
Are you telling us that this Exhibit 3 was incorrectly dated?
A
Yes, your Honor.
*Q
Because the third delivery was on January 31st and yet the receipt was dated January 30?
A
Yes, your Honor.
____________________________
41 TSN, March 17, 1989, pp. 11-21; Records, Vol. III, pp. 413-423.
376
376
*Q
When was Exhibit 3 delivered actually by Mrs. Gimenez?

A
January 31st, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q
You did not go to Malacaang on January 30, 1986?
A
Yes, sir, I did not.
Q
Do you know at whose instance this Exhibit 3 was prepared?
A
I asked for it, sir.
Q
You asked for it on January 31, 1986 when you made the last delivery?
A
Yes, sir.
Q
Did you see this Exhibit 3 prepared in the Office of Mrs. Gimenez?
A
Yes, sir.
Q
This receipt was typewritten in Malacaang stationery. Did you see who typed this receipt?
A
No, sir. What happened is that, she went to her room and when she came out she gave me that receipt.
*PJ GARCHITORENA
*Q
What you are saying is, you do not know who typed that receipt?
WITNESS
A
Yes, your Honor.
*Q
Are you making an assumption that she typed that receipt?
A
Yes, your Honor, because she knows how to type.
*Q
Your assumption is that she typed it herself?
A
Yes, your Honor.
PJ GARCHITORENA
Proceed.
PROS. VIERNES
Q
This receipt was prepared on January 31, although it is dated January 30?
A
Yes, sir, because I was there on January 31st.
Q
In what particular place did Mrs. Gimenez sign this Exhibit 3?
A
In her office at Aguado, sir.
Q
Did you actually see Mrs. Gimenez signing this receipt Exhibit 3?
377
377
A
No, sir, I did not. She was inside her room.
Q
So, she was in her room and when she came out of the room, she handed this receipt to you already typed
and signed?
A
Yes, sir.
*AJ HERMOSISIMA
*Q
So, how did you know this was the signature of Mrs. Gimenez?
WITNESS
A
Because I know her signature, your Honor. I have been receiving letters from her also and when she
requests for something from me. Her writing is familiar to me.
*Q
So, when the Presiding Justice asked you as to how you knew that this was the signature of Mrs. Gimenez
and you answered that you saw Mrs. Gimenez signed it, you were not exactly truthful?
A
What I mean is, I did not see her sign because she went to her room and when she came out, she gave me
that receipt, your Honor.
PJ GARCHITORENA
That is why you have to wait for the question to be finished and listen to it carefully. Because when I asked
you, you said you saw her signed it. Be careful Mr. Tabuena.
WITNESS
Yes, your Honor.

PJ GARCHITORENA
Continue.
PROS VIERNES
Q
Was there another person inside the office of Mrs. Gimenez when she gave you this receipt Exhibit 3?
A
Nobody, sir.
Q
I noticed in this receipt that the last delivery of the sum of P55 million was made on January 30. Do we
understand from you that this date January 30 is erroneous?
A
Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should be January 31st, sir.
PROS VIERNES

PJ GARCHITORENA
Redirect?
ATTY. ANDRES

378
378
*PJ GARCHITORENA
*AJ HERMOSISIMA
*Q
Why did you not ask for a receipt on the first and second deliveries?
A
Because I know that the delivery was not complete yet, your Honor.
*PJ GARCHITORENA
*Q
So you know that the total amount to be delivered was P55 million?
A
Yes, your Honor.
PJ GARCHITORENA
Response by Mr. Peralta to the testimony of Mr. Tabuena.

ATTY. ESTEBAL
We are adopting the testimony of Mr. Tabuena and we will also present the accused, your Honor.
*AJ DEL ROSARIO
*Q
From whom did you receive the Presidents memorandum marked Exhibit 1? Or more precisely, who
handed you this memorandum?
A
Mrs. Fe Roa Gimenez, your Honor.
*Q
Did you ask Mrs. Fe Gimenez for what purpose the money was being asked?
A
The money was in payment for the debt of the MIA Authority to PNCC, your Honor.
*Q
If it was for the payment of such obligation why was there no voucher prepared to cover such payment? In
other words, why was the delivery of the money not covered by any voucher?
A
The instruction to me was to give it to the Office of the President, your Honor.
*PJ GARCHITORENA
*Q
Be that as it may, why was there no voucher to cover this particular disbursement?
A
I was just told to bring it to the Office of the President, your Honor.
*AJ DEL ROSARIO
*Q
Was that normal procedure for you to pay in cash to the Office of the President for obligations of the MIAA
in payment of its obligation to another entity?
379

379
WITNESS
A
No, your Honor, I was just following the Order to me of the President.
*PJ GARCHITORENA
*Q
So the Order was out of the ordinary?
A
Yes, your Honor.
*AJ DEL ROSARIO
*Q
Did you file any written protest with the manner with which such payment was being ordered?
A
No, your Honor.
*Q
Why not?
A
Because with that instruction of the President to me, I followed, your Honor.
*Q
Before receiving this memorandum Exhibit 1, did the former President Marcos discuss this matter with
you?
A
Yes, your Honor.
*Q
When was that?
A
He called me up earlier, a week before that, that he wants to me pay what I owe the PNCC directly to his
office in cash, your Honor.
*PJ GARCHITORENA
*Q
By I OWE, you mean the MIAA?
WITNESS
A
Yes, your Honor.
*AJ DEL ROSARIO
*Q
And what did you say in this discussion you had with him?
A
I just said, Yes, sir, I will do it.
*Q
Were you the one who asked for a memorandum to be signed by him?
A
No, your Honor.
*Q
After receiving that verbal instruction for you to pay MIAAs obligation with PNCC, did you not on your own
accord already prepare the necessary papers and documents for the payment of that obligation?
A
He told me verbally in the telephone that the Order for the payment of that obligation is forthcoming, your
Honor. I will receive it.
*Q
Is this the first time you received such a memorandum from the President?
A
Yes, your Honor.
380
380
*Q
And was that the last time also that you received such a memorandum?
A
Yes, your Honor.
*Q
Did you not inquire, if not from the President, at least from Mrs. Gimenez why this procedure has to be
followed instead of the regular procedure?
A
No, sir.
*AJ DEL ROSARIO
*Q
Why did you not ask?
A
I was just ordered to do this thing, your Honor.
*AJ HERMOSISIMA
*Q
You said there was an I OWE YOU?
A
Yes, your Honor.
*Q
Where is that I OWE YOU now?
A
All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA owes PNCC that amount.
*Q
Was this payment covered by receipt from the PNCC?
A
It was not covered, your Honor.
*Q
So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that payment?
A
Based on the order to me by the former President Marcos ordering me to pay that amount to his office and
then the mechanics will come after, your Honor.
*Q
Is the PNCC a private corporation or government entity?
A
I think it is partly government, your Honor.
*PJ GARCHITORENA
*Q
That is the former CDCP?
A
Yes, your Honor.
*AJ HERMOSISIMA
*Q
Why were you not made to pay directly to the PNCC considering that you are the Manager of MIA at that
time and the PNCC is a separate corporation, not an adjunct of Malacaang?
WITNESS
A
I was just basing it from the Order of Malacaang to pay PNCC through the Office of the President, your
Honor.
*Q
Do you know the President or Chairman of the Board of PNCC?
A
Yes, your Honor.
*Q
How was the obligation of MIAA to PNCC incurred. Was it through the President or Chairman of the Board?
381

381
A
PNCC was the one that constructed the MIA, your Honor.
*Q
Was the obligation incurred through the President or Chairman of the Board or President of the PNCC? In
other words, who signed the contract between PNCC and MIAA?
A
Actually, we inherited this obligation, your Honor. The one who signed for this was the former Director of
BAT which is General Singzon. Then when the MIA Authority was formed, all the obligations of BAT were
transferred to MIAA. So the accountabilities of BAT were transferred to MIAA and we are the ones that are
going to pay, your Honor.
*Q
Why did you agree to pay to Malacaang when your obligation was with the PNCC?
A
I was ordered by the President to do that, your Honor.
*Q
You agreed to the order of the President notwithstanding the fact that this was not the regular course or
Malacaang was not the creditor?
A
I saw nothing wrong with that because that is coming from the President, your Honor.
*Q
The amount was not a joke, amounting to P55 million, and you agreed to deliver money in this amount
through a mere receipt from the private secretary?
A
I was ordered by the President, your Honor.
*PJ GARCHITORENA
*Q
There is no question and it can be a matter of judicial knowledge that you have been with the MIA for
sometime?
A
Yes, your Honor.
*Q
Prior to 1986?
A
Yes, your Honor.
*Q
Can you tell us when you became the Manager of MIA?
A
I became Manager of MIA way back, late 1968, your Honor.
*Q
Long before the MIA was constituted as an independent authority?
A
Yes, your Honor.
*PJ GARCHITORENA
*Q
And by 1986, you have been running the MIA for 18 years?
WITNESS
A
Yes, your Honor.
382
382
*Q
And prior to your joining the MIA, did you ever work for the government?
A
No, your Honor.
*Q
So, is it correct for us to say that your joining the MIA in 1968 as its Manager was your first employment
with the government?
A
Yes, your Honor.
Q
While you were Manager of MIA, did you have other subsequent concurrent positions in the government
also?
A
I was also the Chairman of the Games and Amusement Board, your Honor.
*Q
But you were not the executive or operating officer of the Games and Amusement Board?
A
I was, your Honor.
*Q
As Chairman you were running the Games and Amusement Board?
A
Yes, your Honor.
*Q
What else, what other government positions did you occupy that time?
A
I was also Commissioner of the Game Fowl Commission, your Honor.
*PJ GARCHITORENA
*Q
That is the cockfighting?
WITNESS
A
Yes, your Honor.
*Q
Here, you were just a member of the Board?
A
Yes, your Honor.
*Q
So you were not running the commission?
A
Yes, your Honor.
*Q
Any other entity?
A
No more, your Honor.
*Q
As far as you can recall, besides being the Manager of the MIA and later the MIAA for approximately 18
years, you also ran the Games and Amusement Board as its executive officer?
A
Yes, your Honor.
*Q
And you were a commissioner only of the Game Fowl Commission?
A
Yes, your Honor.
*Q
Who was running the commission at that time?
A
I forgot his name, but he retired already, your Honor.
383

383
*Q
All of us who joined the government, sooner or later, meet with our Resident COA representative?
A
Yes, your Honor.
*PJ GARCHITORENA
*Q
And one of our unfortunate experience (sic) is when the COA Representative comes to us and says:
Chairman or Manager, this cannot be. And we learn later on that COA has reasons for its procedure and
we learn to adopt to them?
WITNESS
A
Yes, your Honor.
*Q
As a matter of fact, sometimes we consider it inefficient, sometimes we consider it foolish, but we know
there is reason in this apparent madness of the COA and so we comply?
A
Yes, your Honor.
*Q
And more than anything else the COA is ever anxious for proper documentation and proper supporting
papers?
A
Yes, your Honor.
*Q
Sometimes, regardless of the amount?
A
Yes, your Honor.
*Q
Now, you have P55 million which you were ordered to deliver in cash, not to the creditor of the particular
credit, and to be delivered in armored cars to be acknowledged only by a receipt of a personal secretary.
After almost 18 years in the government service and having had that much time in dealing with COA
people, did it not occur to you to call a COA representative and say, What will I do here?
A
I did not, your Honor.
*PJ GARCHITORENA
*Q
Did you not think that at least out of prudence, you should have asked the COA for some guidance on this
matter so that you will do it properly?
WITNESS
A
What I was going to do is, after those things I was going to tell that delivery ordered by the President to the
COA, your Honor.
*Q
That is true, but what happened here is that you and Mr. Dabao or you and Mr. Peralta signed requests for
issuance of Managers checks and you were accommodated by
384
384
the PNB Office at Nichols without any internal documentation to justify your request for Managers
checks?
A
Yes, your Honor.
*Q
Of course we had no intimation at that time that Mr. Marcos will win the elections but even then, the Daily
Express, which was considered to be a newspaper friendly to the Marcoses at that time, would occasionally
come with so-called expose, is that not so?
A
Yes, your Honor.
*Q
And worst, you had the so-called mosquito press that would always come out with the real or imagined
scandal in the government and place it in the headline, do you re call that?
A
Yes, your Honor.
*PJ GARCHITORENA
*Q
Under these circumstances, did you not entertain some apprehension that some disloyal employees might
leak you out and banner headline it in some mosquito publications like the Malaya at that time?
WITNESS
A
No, your Honor.
*PJ GARCHITORENA
I bring this up because we are trying to find out different areas of fear. We are in the government and we
in the government fear the COA and we also fear the press. We might get dragged into press releases on
the most innocent thing. You believe that?
A
Yes, your Honor.
*Q
And usually our best defense is that these activities are properly documented?
A
Yes, your Honor.
*Q
In this particular instance, your witnesses have told us about three (3) different trips from Nichols to
Aguado usually late in the date almost in movie style fashion. I mean, the money being loaded in the trunk
of your official car and then you had a back-up truck following your car?
A
Yes, your Honor.
*Q
Is that not quite a fearful experience to you?
A
I did not think of that at that time, your Honor.
*PJ GARCHITORENA
*Q
You did not think it fearful to be driving along Roxas Boulevard with P25 million in the trunk of you car?
385

385
WITNESS
A
We have security at that time your Honor.
ATTY. ANDRES
Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of his car.
*PJ GARCHITORENA
Thank you for the correction. Even P1 million only. How much more with P5 million inside the trunk of your
car, was that not a nervous experience?
A
As I have said, your Honor, I never thought of that.
PJ GARCHITORENA
Thank you very much, Mr. Tabuena. You are excused.

x x x.42
(PERALTA)
(He testified on direct examination that he co-signed with Tabuena a memorandum request for the
issuance of the Managers Check for P5 Million upon order of Tabuena and that he [Peralta] was aware
that MIAA had an existing obligation with PNCC in the amount of around P27 Million. He affirmed having
accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but denied having
misappropriated for his own benefit said amount or any portion thereof.)
CROSS-EXAMINATION BY PROS VIERNES
Q
Will you please tell the Honorable Court why was it necessary for you to co-sign with Mr. Tabuena the
request for issuance of Managers check in the amount of P5 million?
A
At that time I was the Acting Financial Services Manager of MIAA, sir, and all withdrawals of funds should
have my signature because I was one of the signatories at that time.
Q
As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in similar requests for
the issuance of Managers checks by the PNB?
A
That is the only occasion I signed, sir.
____________________________
42 TSN, May 2, 1990, pp. 11-27; Records, Vol. III, pp. 449-465.
386
386
Q
Did you say you were ordered by Mr. Tabuena to sign the request?
A
Yes, sir, and I think the order is part of the exhibits. And based on that order, I co-signed in the request for
the issuance of Managers check in favor of Mr. Luis Tabuena.
PROS VIERNES
Q
Was there a separate written order for you to co-sign with Mr. Tabuena?
WITNESS
A
Yes, sir, an order was given to me by Mr. Tabuena.
*PJ GARCHITORENA
Was that marked in evidence?

WITNESS
Yes, your Honor.

*PJ GARCHITORENA
What exhibit?
WITNESS
I have here a copy, your Honor. This was the order and it was marked as exhibit N.
PROS VIERNES
It was marked as Exhibit M, your Honor.

Q
How did you know there was an existing liability of MIAA in favor of PNCC at that time?
A
Because prior to this memorandum of Mr. Tabuena, we prepared the financial statement of MIAA as of
December 31, 1985 and it came to my attention that there was an existing liability of around
P27,999,000.00, your Honor.
Q
When was that Financial Statement prepared?
A
I prepared it around January 22 or 24, something like that, of 1986, sir.
Q
Is it your usual practice to prepare the Financial Statement after the end of the year within three (3) weeks
after the end of the year?
A
Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on or before the 4th
Friday of the month because there will be a Board of Directors Meeting and the Financial Statement of the
prior month will be presented and discussed during the meeting.
*PJ GARCHITORENA
Q
This matter of preparing Financial Statement was not an annual activity but a monthly activity?
387

387
A
Yes, your Honor.
*Q
This Financial Statement you prepared in January of 1986 recapitulated the financial condition as of the
end of the year?
A
Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q
You made mention of a request for Escalation Clause by former Minister Ongpin. Did you personally see
that request?
A
When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir. I have no file
because I just read it.
Q
It was Mr. Tabuena who showed you the letter of Minister Ongpin?
A
Yes, sir.
*PJ GARCHITORENA
And that will be Exhibit?

ATTY. ANDRES
Exhibit 2 and 2-A, your Honor.

PROS VIERNES
Q
You also stated that you were with Mr. Tabuena when you withdrew the amount of P5 million from the
PNB Extension Office at Villamor?
A
Yes, sir.
Q
Why was it necessary for you to go with him on that occasion?
A
Mr. Tabuena requested me to do the counting by million, sir. So what I did was to bundle count the P5
million and it was placed in two (2) peerless boxes.
Q
Did you actually participate in the counting of the money by bundles?
A
Yes, sir.
Q
Bundles of how much per bundle?
A
If I remember right, the bundles consisted of P100s and P50s, sir.
Q
No P20s and P10s?
A
Yes, sir, I think it was only P100s and P50s.
*PJ GARCHITORENA
*Q
If there were other denominations, you can not recall?
A
Yes, your Honor.
388
388
PROS VIERNES
Q
In how many boxes were those bills placed?

A
The P5 million were placed in two (2) peerless boxes, sir.
Q
And you also went with Mr. Tabuena to Aguado?
A
No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr. Tabuena, I was left
behind and I went back to my office at MIA.
Q
But the fact is that, this P5 million was withdrawn at passed 5:00 oclock in the afternoon?
A
I started counting it I think at around 4:30, sir. It was after office hours. But then I was there at around 4:00
oclock and we started counting at around 4:30 p.m. because they have to place it in a room, which is the
office of the Manager at that time.
Q
And Mr. Tabuena left for Malacaang after 5:00 oclock in the afternoon of that date?
A
Yes, sir. After we have counted the money, it was placed in the peerless boxes and Mr. Tabuena left for
Malacaang.
PROS VIERNES
Q
And you yourself, returned to your office at MIA?
WITNESS
A
Yes, sir.
Q
Until what time do you hold office at the MIA?
A
Usually I overstayed for one (1) or two (2) hours just to finish the paper works in the office, sir.
Q
So, even if it was already after 5:00 oclock in the afternoon, you still went back to your office at MIA?
A
Yes, sir.
PROS VIERNES

PJ GARCHITORENA
Redirect?
ATTY. ESTEBAL

*PJ GARCHITORENA

*AJ DEL ROSARIO
*Q
Did you not consider it as odd that your obligation with the PNCC had to be paid in cash?
389

389
WITNESS
A
Based on the order of President Marcos that we should pay in cash, it was not based on the normal
procedure, your Honor.
*Q
And, as Acting Financial Services Manager, you were aware that all disbursements should be covered by
vouchers?
A
Yes, your Honor, the payments should be covered by vouchers. But then, inasmuch as what we did was to
pre pare a request to the PNB, then this can be covered by Journal Voucher also.
*Q
Was such payment of P5 million covered by a Journal Voucher?
A
Yes, your Honor.
*Q
Did you present that Journal Voucher here in Court?
A
We have a copy, your Honor.
*Q
Do you have a copy or an excerpt of that Journal Voucher presented in Court to show that payment?
A
We have a copy of the Journal Voucher, your Honor.
*Q
Was this payment of P5 million ever recorded in a cashbook or other accounting books of MIAA?
A
The payment of P5 million was recorded in a Journal Voucher, your Honor.
*PJ GARCHITORENA
*Q
In other words, the recording was made directly to the Journal?
WITNESS
A
Yes, your Honor.
*Q
There are no other separate documents as part of the application for Managers Check?
A
Yes, your Honor, there was none.
*AJ DEL ROSARIO
*Q
After the payment was made, did your office receive any receipt from PNCC?
A
I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, your Honor. Inasmuch as
the payment should be made through the Office of the President, I accepted the receipt given by Mrs. Fe
Gimenez to Mr. Tabuena.
*Q
After receiving that receipt, did you prepare the necessary supporting documents, vouchers, and use that
receipt as a supporting document to the voucher?
390
390
A
Your Honor, a Journal Voucher was prepared for that.
*Q
How about a disbursement voucher?
A
Inasmuch as this was a request for Managers check, no disbursement voucher was prepared, your Honor.
*AJ DEL ROSARIO
*Q
Since the payment was made on January 31, 1986, and that was very close to the election held in that year,
did you not entertain any doubt that the amounts were being used for some other purpose?
ATTY. ESTEBAL
With due respect to the Honorable Justice, we are objecting to the question on the ground that it is
improper.
*AJ DEL ROSARIO
I will withdraw the question.

*PJ GARCHITORENA
What is the ground for impropriety?

ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I dont think there was any basis, your Honor.
*PJ GARCHITORENA
Considering the withdrawal of the question, just make the objection on record.
*AJ HERMOSISIMA
*Q
As a Certified Public Accountant and Financial Manager of the MIAA, did you not consider it proper that a
check be issued only after it is covered by a disbursement voucher duly approved by the proper
authorities?
A
Your Honor, what we did was to send a request for a Managers check to the PNB based on the request of
Mr. Tabuena and the order of Mr. Tabuena was based on the Order of President Marcos.
*PJ GARCHITORENA
*Q
In your capacity as Financial Services Manager of the MIAA, did you not think it proper to have this
transaction covered by a disbursement voucher?
WITNESS
A
Based on my experience, payments out of cash can be made through cash vouchers, or even though
Journal Vouchers, or even through credit memo, your Honor.
391

391
*AJ HERMOSISIMA
*Q
This was an obligation of the MIAA to the PNCC. Why did you allow a disbursement by means of check in
favor of Mr. Luis Tabuena, your own manager?
A
We based the payment on the order of Mr. Tabuena because that was the order of President Marcos to
pay PNCC through the Office of the President and it should be paid in cash, your Honor.
*Q
You are supposed to pay only on legal orders. Did you consider that legal?
ATTY. ESTEBAL
With due respect to the Honorable Justice, the question calls for a conclusion of the witness.
*PJ GARCHITORENA
Considering that the witness is an expert, witness may answer.

WITNESS
A
The order of president Marcos was legal at that time because the order was to pay PNCC the amount of P5
million through the Office of the President and it should be paid in cash, your Honor. And at that time, I
know for a fact also that there was an existing P.D. wherein the President of the Republic of the Philippines
can transfer funds from one office to another and the PNCC is a quasi government entity at that time.
*AJ HERMOSISIMA
*Q
Are you saying that this transaction was made on the basis of that P.D. which you referred to?
A
I am not aware of the motive of the President, but then since he is the President of the Philippines, his
order was to pay the PNCC through the Office of the President, your Honor.
*Q
As Financial Manager, why did you allow a payment in cash when ordinarily payment of an obligation of
MIAA is supposed to be paid in check?
A
I caused the payment through the name of Mr. Tabuena because that was the order of Mr. Tabuena and
also he received an order coming from the President of the Philippines at that time, your Honor.
*PJ GARCHITORENA
*Q
Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of
accounts ear
392
392
lier made in the same journal?
In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was
otherwise not recorded.
WITNESS
A
Yes, your Honor.
*Q
Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of
the exceptional nature of the transactions?
A
Yes, your Honor.
*Q
In other words, as an Accountant, you would not normally authorize such a movement of money unless it
is properly documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the question is misleading because what the
witness stated is . . .
*PJ GARCHITORENA
Be careful in your objection because the witness understands the language you are speaking, and
therefore, you might be coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say that . . .
*PJ GARCHITORENA
Please be simple in your objection.

ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in
this particular case was supported, your Honor.
*PJ GARCHITORENA
Overruled, may answer.

WITNESS
A
The transaction was fully documented since we have the order of the General Manager at that time and
the order of President Marcos, your Honor.
*Q
Are you saying the Order of the General Manager is an adequate basis for the movement of money?
A
Yes, your Honor, because at that time we have also a recorded liability of P27 million.
*Q
We are not talking of whether or not there was a liability. What we are saying is, is the order of the General
Man
393

393
ager by itself adequate with no other supporting papers, to justify the movement of funds?
A
Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liability of P27,931,000.00 inas
much as we have that liability and I was shown the order of President Marcos to pay P5 million through the
Office of the President, I considered the order of Mr. Luis Tabuena, the order of President Marcos and also
the existing liability of P27 million sufficient to pay the amount of P5 million. Inasmuch as there is also an
escalation clause of P99.1 million, the payment of P5 million is fully covered by those existing documents.
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not asking you whether or not there was
valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this
particular order of Mr. Tabuena is an adequate basis to justify the movement of funds?
WITNESS
When we pay, your Honor, we always look for the necessary documents and at that time I know for a fact
that there was this existing liability.
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to the question being asked and not to
whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement
that there are all of these memoranda.
*Q
By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate?
WITNESS
A
As far as I am concerned, your Honor, inasmuch as we have a liability and I was shown the Order of
President Marcos to pay PNCC through his office, I feel that the order of the General Manager, the order of
President Marcos, and also the memorandum of Minister Ongpin are sufficient to cause the payment of P5
million.
*PJ GARCHITORENA
*Q
This Presidential Decree which authorizes the President to transfer funds from one department to another,
is this
394
394
not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned?
WITNESS
A
Because at that time, your Honor, I have knowledge that the President is authorized through a Presidential
Decree to transfer government funds from one office to another.
*PJ GARCHITORENA
*Q
Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act?
A
I think the liability was duly recorded and appropriations to pay the amount is . . . . (interrupted)
*PJ GARCHITORENA
*Q
Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the
hope that we will forget what the question is?
A
No, your Honor.
*Q
Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the
payment of this debt would be in the same level as the realignment of funds authorized the President? Or
are you telling us you did not read the Decree?
A
I was aware of that Decree, your Honor.
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of
funds?
ATTY. ESTEBAL
Yes, your Honor.

*PJ GARCHITORENA
*Q
It is true that President Marcos was the President, but he was not an officer of the MIAA, was he?
A
No, your Honor.
*Q
In fact, for purposes of internal control, you have different officers and different officials in any company
either government or private, which are supposed to check and balance each other, is it not?
A
Yes, your Honor.
*Q
So that when disbursements of funds are made, they are made by authority of not only one person alone
so that nobody will restrain him?
A
Yes, your Honor.
395

395
*Q
These checks and balances exist in an entity so that no one person can dispose of funds in any way he
likes?
A
Yes, your Honor.
*Q
And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the
same purpose?
A
Yes, your Honor.
*PJ GARCHITORENA
*Q
In other words, the co-signatories counter check each other?
WITNESS
A
Yes, your Honor.
*Q
In your case, you would be the counter check for Mr. Tabuena?
A
Yes, your Honor.
*Q
In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter
signatory are in a position to tell Mr. Tabuena, I am sorry, you are my superior but this disbursement is
not proper and, therefore, I will not sign it, if in your opinion the disbursement is not proper?
A
Yes, your Honor.
*Q
Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular
transaction?
A
Yes, your Honor.
*Q
And this is something you know by the nature of your position and because you are a Certified Public
Accountant?
A
Yes, your Honor.
*AJ DEL ROSARIO
*Q
You admit that the payment of P5 million and P50 million were unusual in the manner with which they
were disposed?
A
Yes, your Honor.
*Q
Did you submit a written protest to the manner in which such amount was being disposed of?
A
A written protest was not made, your Honor, but I called the attention of Mr. Tabuena that since this
payment was upon the order of President Marcos, then I think as President he can do things which are not
ordinary.
396
396
*Q
If you did not prepare a written protest, did you at least prepare a memorandum for the record that this
was an extra-ordinary transaction?
A
I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and no written note, your
Honor.
PJ GARCHITORENA
Thank you very much Mr. Peralta, you are excused.
x x x.43
This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his
mind upon any material point which presents itself during the trial of a case over which he presides.44 But
not only should his examination be limited to asking clarificatory questions,45 the right should be
sparingly and judiciously used; for the rule is that the court should stay out of it as much as possible,
neither interfering nor intervening in the conduct of the trial.46 Here, these limitations were not observed.
Hardly in fact can one avoid the impression that the Sandiganbayan had allied itself with, or to be more
precise, had taken the cudgels for the prosecution in proving the case against Tabuena and Peralta when
the Justices cross-examined the witnesses, their cross-examinations supplementing those made by
Prosecutor Viernes and far exceeding the latters questions in length. The cold neutrality of an impartial
judge requirement of due process was certainly denied Tabuena and Peralta when the court, with its
overzealousness, assumed the dual role of magistrate and advocate. In this connection, the observation
made in the Dissenting Opinion to the effect that the majority of this Court was unduly disturbed with
the number of court questions alone, is quite inaccurate. A substantial portion of the TSN was incorporated
in the majority opinion not to focus
____________________________
44 US v. Hudieres, 27 Phil. 45; US v. Lim Kui, 35 Phil. 504; US v. Binayao, 35 Phil. 23.
45 People v. Opida, 142 SCRA 295.
46 York v. US, 299 Fed. 778.
397

397
on numbers alone, but more importantly to show that the court questions were in the interest of the
prosecution and which thus depart from that common standard of fairness and impartiality. In fact, it is
very difficult to be, upon review of the records, confronted with numbers without necessarily realizing
the partiality of the Court. In US v. De Sisto (2 Cir., 1961, 289 F 2d 833), for example, a new trial was
required because the trial judge, as in this case, indulged in extensive questioning of defendant and his
witnesses, and the reviewing court also had to amplify on numbers to bolster this. It was pointed out in
the De Sisto case that the judge asked 3,115 questions of all witnesses, the prosecutor asked but 1,381,
defense counsel 3,330. The judges questions to the defendant De Sisto totalled 306, the prosecutors 347,
and the defense counsels 201. After referring to these figures, the court stated:
. . . It is indeed an impressive proportion, but no such mathematical computation is of itself
determinative. However, taking all this in conjunction with the long and vigorous examination of the
defendant himself by the judge, and the repeated belittling by the judge of defendants efforts to establish
the time that Fine left the pier, we fear that in its zeal for arriving at the facts the court here conveyed to
the jury too strong an impression of the courts belief in the defendants probable guilt to permit the jury
freely to perform its own function of independent determination of the facts. x x x
The majority believes that the interference by the Sandiganbayan Justices was just too excessive that it
cannot be justified under the norm applied to a jury trial, or even under the standard employed in a nonjury trial where the judge is admittedly given more leeway in propounding questions to clarify points and
to elicit additional relevant evidence. At the risk of being repetitious, we will amplify on this via some
specific examples. Based on the evidence on record, and on the admission of Tabuena himself, the P55
million was delivered to the Presidents Office thru Mrs. Gimenez, in obedience to the Presidential
directive. One Sandiganbayan Justice, however, hurled the following questions to Peralta:
398
398
AJ DEL ROSARIO
Q:
Since the payment was made on January 31, 1986, and that was very close to the election held in that year,
did you not entertain any doubt that the amounts were being used for some other purposes?
ATTY. ESTEBAL
With due respect to the Honorable Justice, We are objecting to the question on the ground that it is
improper.
AJ DEL ROSARIO
I will withdraw the question.
PJ GARCHITORENA
What is the ground for impropriety?

ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I dont think there was any basis, Your Honor.
PJ GARCHITORENA
Considering the withdrawal of the question, just make the objection on record.
Nothing from the preceding questions of counsels or of the court would serve as basis for this question.
How then, can this be considered even relevant? What is the connection between the payment made to
the Presidents office and the then forthcoming presidential snap election? In another instance, consider
the following questions of Presiding Justice Garchitorena:
*PJ GARCHITORENA
*Q
Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of
accounts earlier made in the same journal?
xxx
*Q
In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was
otherwise not recorded.
xxx
*Q
Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of
the exceptional nature of the transactions?
xxx
399

399
*Q
In other words, as an Accountant, you would not normally authorize such a movement of money unless it
is properly documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the question is misleading because what the
witness stated is . . .
*PJ GARCHITORENA
Be careful in your objection because the witness understands the language you are speaking, and
therefore, you might be coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say that . . .
*PJ GARCHITORENA
Please be simple in your objection.

ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in
this particular case was supported, your Honor.
*PJ GARCHITORENA
Overruled, may answer.

WITNESS
A
The transaction was fully documented since we have the order of the General Manager at that time and
the order of President Marcos, your Honor.
*Q
Are you saying the Order of the General Manager is an adequate basis for the movement of money?
*Q
We are not talking of whether or not there was a liability. What we are saying is, is the order of the General
Manager by itself adequate with no other supporting papers, to justify the movement of funds?
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not asking you whether or not there was
valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this
particular order of Mr. Tabuena is an adequate basis to justify the movement of funds?
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to the question being asked and not to
what400
400
ever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that
there are all of these memoranda.
*Q
By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate?
*PJ GARCHITORENA
*Q
This Presidential Decree which authorizes the President to transfer funds from one department to another,
is this not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned?
*PJ GARCHITORENA
*Q
Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act?
*PJ GARCHITORENA
*Q
Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the
hope that we will forget what the question is?
xxx
*Q
Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the
payment of this debt would be in the same level as the realignment of funds authorized the President? Or
are you telling us you did not read the Decree?
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of
funds?
ATTY. ESTEBAL
Yes, your Honor.

*PJ GARCHITORENA
*Q
It is true that President Marcos was the President, but he was not an officer of the MIAA, was he?
*Q
In fact, for purposes of internal control, you have different officers and different officials in any company
either government or private, which are supposed to check and balance each other, is it not?
*Q
So that when disbursements of funds are made, they are made by authority of not only one person alone
so that nobody will restrain him?
*Q
These checks and balances exist in an entity so that no one person can dispose of funds in any way he
likes?
401

401
*Q
And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the
same purpose?
*PJ GARCHITORENA
*Q
In other words, the co-signatories counter check each other?
*Q
In your case, you would be the counter check for Mr. Tabuena?
*Q
In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter
signatory are in a position to tell Mr. Tabuena, I am sorry, you are my superior but this disbursement is
not proper and, therefore, I will not sign it., if in your opinion the disbursement is not proper?
*Q
Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular
transaction?
*Q
And this is something you know by the nature of your position and because you are a Certified Public
Accountant?47
How can these questions be considered clarificatory when they clearly border more on cross-examination
questions? Thus, the Dissenting Opinions focus on the distinction between the two kinds of trial to justify
the Sandiganbayans active participation in the examination of petitioners Tabuena and Peralta and
witness Monera, with due respect, appears insignificant to this case. Let it, therefore, be emphasized anew
that:
A trial judge should not participate in the examination of witnesses as to create the impression that he is
allied with the prosecution.48
We doubt not that the sole motive of the learned judge was to ascertain the truth of the transaction, but
it is never proper for a judge to discharge the duties of a prosecuting attorney. However anxious a judge
may be for the enforcement of the law, he should always remember that he is as much judge in behalf of
the defen-
____________________________
48 People v. Opida, supra.
402
402
dant accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the state, for the
purpose of safeguarding the interests of society.49
Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length. The
circumstances may be such in a given case as to justify the court in so doing . . . . This court, however, has
more than once said that the examination of witnesses is the more appropriate function of counsel, and
the instances are rare and the conditions exceptional which will justify the presiding judge in conducting an
extensive examination. It is always embarrassing for counsel to object to what he may deem improper
questions by the court. Then, in conducting a lengthy examination, it would be almost impossible for the
judge to preserve a judicial attitude. While he is not a mere figurehead or umpire in a trial, and it is his duty
to see that justice is done, he will usually not find it necessary to conduct such examinations. The extent to
which this shall be done must largely be a matter of discretion, to be determined by the circumstances of
each particular case, but in so doing he must not forget the function of the judge and assume that of an
advocate . . . .50
While it is true that the manner in which a witness shall be examined is largely in the discretion of the trial
judge, it must be understood that we have not adopted in this country the practice of making the presiding
judge the chief inquisitor. It is better to observe our time-honored custom of orderly judicial procedure,
even at the expense of occasional delays . . . . The judge is an important figure in the trial of a cause, and
while he has the right, and it is often his duty, to question witnesses to the end that justice shall prevail, we
can conceive of no other reason, for him to take the trial of the cause out of the hands of counsel.51
The examination of witnesses is the more appropriate function of counsel, and it is believed the instances
are rare and the conditions exceptional in a high degree which will justify the presiding judge in entering
upon and conducting an extended examination of a witness, and that the exercise of a sound discretion
will seldom deem such action necessary or advisable.52
____________________________
49 Murphy v. State, 13 Ga. App. 431, 79 S.E. 228.

50 People v. Bernstein, 250 Ill. 63, 95 N.E. 50.
51 Dreyer v. Ershowsky, 156 App. Div. 27, 140 N.Y. Supp. 819.
52 Dunn v. People, 172 Ill. 582, 50 N.E. 137.
403

403
He [the judge] may properly intervene in a trial of a case to promote expedition, and prevent unnecessary
waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference,
impatience, or participation in the examination of witnesses, or a severe attitude on his part toward
witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to
prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto.53
The impartiality of the judgehis avoidance of the appearance of becoming the advocate of either one
side or the other of the pending controversy is a fundamental and essential rule of special importance in
criminal cases . . . .54
Our courts, while never unmindful of their primary duty to administer justice, without fear or favor, and
to dispose of these cases speedily and in as inexpensive a manner as is possible for the court and the
parties, should refrain from showing any semblance of one-sided or more or less partial attitude in order
not to create any false impression in the minds of the litigants. For obvious reasons, it is the bounden duty
of all to strive for the preservation of the peoples faith in our courts.55
Time and again this Court has declared that due process requires no less than the cold neutrality of an
impartial judge. Bolstering this requirement, we have added that the judge must not only be impartial but
must also appear to be impartial, to give added assurance to the parties that his decision will be just. The
parties are entitled to no less than this, as a minimum guaranty of due process.56
We are well aware of the fear entertained by some that this decision may set a dangerous precedent in
that those guilty of enriching themselves at the expense of the public would be able to escape criminal
liability by the mere expedient of invoking good faith. It must never be forgotten, however, that we
render justice on a case to case basis, always in consideration of the evidence that is presented. Thus,
where the evi____________________________
53 Com. v. Myma, 278 Pa. 505, 123 Atl. 786.

54 Adler v. US, 104 C.C.A. 608, 108 Fed. 464.
55 Companer v. Alano, CA-G.R. No. 2558-R, December 15, 1948.
56 People vs. Opida, supra.
404
404
dence warrants an acquittal, as in this case, we are mandated not only by the dictates of law but likewise
of conscience to grant the same. On the other hand, it does not follow that all those similarly accused will
necessarily be acquitted upon reliance on this case as a precedent. For the decision in this case to be a
precedent, the peculiar circumstances and the evidence that led to the petitioners acquittal must also be
present in subsequent cases.
Furthermore, as between a mere apprehension of a dangerous precedent and an actual violation of
constitutionally enshrined rights, it is definitely the latter that merits our immediate attention. For the
most dangerous precedent arises when we allow ourselves to be carried away by such fears so that it
becomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to justice
the malefactors of the Marcos regime, we must not succumb to the temptation to commit the greatest
injustice of visiting the sins of the wrongdoers upon an innocent.
WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta are hereby
ACQUITTED of the crime of malversation as defined and penalized under Article 217 of the Revised Penal
Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution dated December 20, 1991 are
REVERSED and SET ASIDE.
SO ORDERED.
Narvasa (C.J.), Vitug, Kapunan and Mendoza, JJ., concur.
Padilla, J., I join Justices Davide, Romero and Puno in their Dissenting Opinions.
Regalado, Bellosillo and Torres, Jr., JJ., Pro hac vice.
Davide, Jr., Please see my dissenting opinion.
Romero, J., Please see my dissenting opinion.
Melo, J., I join the dissents.
Puno, J., Please see Dissent.
405

405
Hermosisima, Jr., J., No part. Signatory to SB decision.

Panganiban, J., Please see Dissenting Opinion. I join Mme. Justice Romeros Dissenting Opinion as well
as those of JJ. Davide and Puno.
DISSENTING OPINION
DAVIDE, JR., J.:
Last 20 September 1996 in Regala v. Sandiganbayan,1 this Court erected a barrier to the constitutionally
mandated task to recover ill-gotten wealth and in the punishment of those who dirtied their hands with it.
This the Court did by impliedly granting immunity from civil suit or liability under an expanded
interpretation of the lawyer-client privilege, lawyers who were alleged to have acted as co-conspirators or
dummies of certain parties in the acquisition of such wealth.
The acquittal decreed by the majority in the cases under consideration places another obstacle to such
recovery and punishment by granting immunity from any criminal liability those who were ordered by then
President Marcos to disburse government funds for alleged payment of obligations. This is the immediate
impression anyone can get from the following sweeping pronouncement in the ponencia:2
In the case at bench, the order emanated from the office of the President and bears the signature of the
President himself, the highest official of the land. It carries with it the presumption that it was regularly
issued. And on its face, the memorandum is patently lawful for no law makes the payment of an obligation
illegal. This fact, coupled with the urgent tenor for its execution constrains one to act swiftly without
question. Obedientia est legis essentia . . . .
What this suggests is that no one could disobey then President Marcos, a suggestion made more eloquent
with the quotation of the dissenting opinion of Mr. Justice Cruz in Devel____________________________
1 G.R. No. 105938.

2 Page 26.
406
406
opment Bank of the Philippines v. Pundogar.3 That dissent cannot be used to justify the petitioners
obedience, otherwise, this Court would thus overturn the majority opinion in the said case and adopt the
dissent as the new rule.
Henceforth, all those similarly situated as the appellants or those who could simply provide any reason for
their compelled obedience to Mr. Marcos can go scot-free. The meaning of EDSA and its message for
history would thus be obliterated. The acquittal then perpetuates a sad day for this Courta day of
mourning for those who fought against the dictatorship and of triumph and joy for the dictators
collaborators, nominees, associates, and friends.
I cannot join the majority in these cases.
My analysis of the ponencia indicates that the acquittal is based on the following:
1. The accused-appellants merely acted in obedience to an order by a superior for some lawful purpose;
hence, they incur no criminal liability pursuant to Article 11(6) of the Revised Penal Code.
2. Even granting that the order was not for a lawful purpose, they acted in good faith.
3. Their basic constitutional right to due process was violated by the way the Sandiganbayan actively took
part in the questioning of a defense witness and of the accused themselves.
I
I shall first take up the third.
The ponencia admits that the appellants did not raise as an issue the Sandiganbayans violation of their
right to due process; nevertheless, it ruled that such failure is not an impediment to the consideration of
the violation as additional basis for a reversal since the settled doctrine is that an appeal throws the
whole case open to review, and it becomes the duty of the appellate court to correct such errors as may be
found
____________________________
3 218 SCRA 118, 163 [1993].

407

407
in the judgment appealed from whether they are made the subject of assignments of error or not.4
I beg to disagree.
First, there is no showing at all that the extensive participation by the Justices of the Sandiganbayan in
questioning the appellants and their witness indicated prejudgment of guilt, bias, hatred, or hostility
against the said appellants. On the contrary, the quoted portions of the questions propounded by the
Justices manifest nothing but a sincere desire to ferret out the facts to arrive at the truth which are crucial
in the determination of the innocence or guilt of the appellants. These Justices, as trial magistrates, have
only exercised one of the inherent rights of a judge in the exercise of judicial function. What this Court
stated eighty-three years ago in United States v. Hudieres 5 needs repeating:
It is very clear, however, from a review of the whole proceedings that the only object of the trial judge in
propounding these questions was to endeavor as far as possible to get at the truth as to the facts to which
the witnesses were testifying. The right of a trial judge to question the witnesses with a view to satisfying
his mind upon any material point which presents itself during the trial of a case over which he presides is
too well established to need discussion. The trial judges in this jurisdiction are judges of both the law and
the facts, and they would be negligent in the performance of their duties if they permitted a miscarriage of
justice as a result of a failure to propound a proper question to a witness which might develop some
material fact upon which the judgment of the case should turn. So in a case where a trial judge sees that
the degree of credit which he is to give the testimony of a given witness may have an important bearing
upon the outcome, there can be no question that in the exercise of a sound discretion he may put such
questions to the witness as will enable him to formulate a sound opinion as to the ability or willingness of
the witness to tell the truth. The questions asked by the trial judge in the case at bar were in our opinion
en____________________________
4 Citing People v. Olfindo, 47 Phil. 1 (1924), citing U.S. vs. Abijan, 1 Phil. 83 [1902]; People vs. Borbano, 76
Phil. 703 [1946]; Perez v. Court of Appeals, 127 SCRA 636 [1984].
5 27 Phil. 45, 47-48 [1914].
408
408
tirely proper, their only purpose being to clarify certain obscure phases of the case; and while we are
inclined to agree with counsel that some of the observations of the trial judge in the course of his
examination might well have been omitted, there is no reason whatever to believe that the substantial
rights of the defendants were in anywise prejudiced thereby.
That the appellants themselves did not find any impropriety in the conduct of the Justices, or that if they
did find nothing therein to prejudice their right to due process is bestproven by their failure to assign it as
error.
Second, even granting arguendo that the conduct of the Justices constituted such a violation, the
appellants are forever estopped from raising that issue on ground of waiver. This Court would risk an
accusation of undue partiality for the appellants were it to give them premium for their torpor and then
reward them with an acquittal. Such waiver is conclusively proven in these cases. From the quoted
portions of the testimonies of the witnesses for the appellants, it is clear that their counsel did not object
to, or manifest on record his misgivings on, the active participation of the Justices in the examination (or
cross-examination) of the witnesses. Nothing could have prevented the counsel for the appellants from
doing so. Then, too, as correctly pointed out in the ponencia, they made no assignment of error on the
matter.
In our jurisdiction, rights may be waived unless the waiver is contrary to law, public order, public policy,
morals, or good customs, or is prejudicial to a third person with a right recognized by law.6
In People v. Donato,7 this Court made the following statement on what rights may be waived:
As to what rights and privileges may be waived, the authority is settled:
x x x the doctrine of waiver extends to rights and privileges of any character, and, since the word waiver
covers
____________________________
6 Article 6, Civil Code.

7 198 SCRA 130, 154-155 [1991].
409

409
every conceivable right, it is the general rule that a person may waive any matter which affects his
property, and any alienable right or privilege of which he is the owner or which belongs to him or to which
he is legally entitled, whether secured by contract, conferred with statute, or guaranteed by constitution,
provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe
on the rights of others, and further provided the waiver of the right or privilege is not forbidden by law,
and does not contravene public policy; and the principle is recognized that everyone has a right to waive,
and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the
individual in his private capacity, if it can be dispensed with and relinquished without infringing on any
public right, and without detriment to the community at large. x x x
Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution
may be waived, a waiver in derogation of a statutory right is not favored, and a waiver will be inoperative
and void if it infringes on the rights of others, or would be against public policy or morals and the public
interest may be waived.
While it has been stated generally that all personal rights conferred by statute and guaranteed by
constitution may be waived, it has also been said that constitutional provisions intended to protect
property may be waived, and even some of the constitutional rights created to secure personal liberty are
subjects of waiver.8
In Commonwealth vs. Petrillo,9 it was held:

Rights guaranteed to one accused of a crime fall naturally into two classes: (a) those in which the state, as
well as the accused, is interested; and (b) those which are personal to the accused, which are in the nature
of personal privileges. Those of the first class cannot be waived; those of the second may be.
____________________________
8 Citing 92 C.J.S. 1066-1068 (italics supplied for emphasis).

9 Citing 16 A. 2d 50, 57, 340 Pa. 33, cited in note 71 C.J.S., 1068.
410
410
It is competent for a person to waive a right guaranteed by the Constitution, and to consent to action
which would be invalid if taken against his will.10
This Court has recognized waivers of constitutional rights such as, for example, the right against
unreasonable searches and seizures;11 the right to counsel and to remain silent;12 and the right to be
heard.13
Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights. Section
12(1) of Article III thereof on the right to remain silent and to have a competent and independent counsel,
preferably of his own choice states:
x x x These rights cannot be waived except in writing and in the presence of counsel.
This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests
that the other rights may be waived in some other form or manner provided such waiver will not offend
Article 6 of the Civil Code.
We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a right
which is personal to the accused and whose waiver would not be contrary to law, public order, public
policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.
In the cases below, the perceived violation, if at all it existed, was not of the absolute totality of due
process, but more appropriately of the right to an impartial trial, which is but
____________________________
10 Citing ARTURO M. TOLENTINO, Civil Code of the Philippines, vol. 1, 1985 ed., 31-32, citing Waxman v.
United States, 12 Fed. 2nd, 775.
11 Citing People v. Malasugui, 63 Phil. 221 [1936]; de Garcia v. Locsin, 65 Phil. 689 [1938].
12 Citing People v. Royo, 114 SCRA 304 [1982]; Morales v. Enrile, 121 SCRA 538 [1983]; People v. Colana,
126 SCRA 23 [1983]; People v. Sanchez, 132 SCRA 103 [1984]; People v. Galit, 135 SCRA 465 [1985]; People
v. Quizon, 142 SCRA 362 [1986].
13 Citing Abriol v. Homeres, 84 Phil. 525 [1949]; People v. Dichoso, 96 SCRA 957 [1980].
411

411
an aspect of the guarantee of due process.14 I submit that the right to an impartial trial is waivable.
II
I also disagree with the view of the majority that all the requisites of the sixth justifying circumstance in
Article 11 of the Revised Penal Code are present. I submit that the 8 January 1986 Memorandum of
President Marcos can by no means be considered a lawful order to pay P55 million to the PNCC as
alleged partial payment of the MIAAs account to the former. The alleged basis of such Memorandum is
the 7 January 1985 Memorandum of Trade and Industry Minister Roberto Ongpin, which even confirms the
absence of any factual basis for the order of payment of P55 million:
In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly
CDCP, has accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusive of
accomplishments for the aforecited contracts. In accordance with contract provisions, outstanding
advances totalling P93.9 million are to be deducted from said billings which will leave a net amount due to
PNCC of only P4.5 million, thus: At the same time, PNCC has potential escalation claims amounting to P99
million in the following states of approved/evaluation:
Approved by Price Escalation Committee (PEC) but pending for lack of funds
P 1.9 million
Endorsed by project consultants and currently being evaluated by PEC

30.7 million
Submitted by PNCC directly to PEC and currently under evaluation

66.5 million
Total
P99.1 million
____________________________
14 JOAQUIN G. BERNAS, the Constitution of the Republic of the Philippines, vol. 1 [1987], 387.
412
412
There has been no funding allocation for any of the above escalation claims due to budgetary constraints.
The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due to
PNCC have not been paid, resulting in undue burden to PNCC due to additional cost of money to service its
obligations for this contract.
request for His Excellencys approval for a deferment of the repayment of PNCCs advances to the extent of
million has been officially recognized by MIADP consultants but could not be paid due to lack of fundings.
If Ongpins memorandum is given full faith, it is clear that PNCCs accomplishment billings for work
accomplished, including accomplishments on the supplemental contracts (whose authority therefor was
just sought for), aggregated to P98.4 million. Since there were advances given to PNCC in the total amount
of P93.9 million, the net amount due the PNCC was only P4.5 million.
However, in view of the approval by then President Marcos of Ongpins request for a deferment of the
repayment of PNCCs advances to the extent of P30 million, only P63.9 million of PNCCs advances was to
be deducted from the accomplishment billings of P98.4 million. The net amount due thus became P34.5
million. Hence, as pointed out by the Sandiganbayan, if any payments were due under Ongpins
Memorandum, they would only be for that amount (P34.5 million). The Order of then President Marcos to
withdraw has, therefore, exceeded by P20.5 million. Clearly, the order of payment of P55 million had no
factual and legal basis and was therefore unlawful.
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413
III
Not an iota of good faith was shown in the conduct of the appellants.
Being responsible accountable officers of the MIAA, they were presumed to know that, in light of the
undeferred portion of the repayment of PNCCs advances in the amount of P63.9 million, the MIAAs
unpaid balance was only P34.5 million. They also ought to know the procedure to be followed in the
payment of contractual obligations. First and foremost there were the submission by the PNCC of its claims
with the required supporting documents and the approval of the claims by the appropriate approving
authority of MIAA. When then President Marcos ordered immediate payment, he should not have been
understood as to order suspension of the accepted budgeting, accounting, and auditing rules on the
matter. Parenthetically, it may be stated here that although President Marcos was a dictator, he was
reported to be, and even projected himself as, a faithful advocate of the rule of law. As a matter of fact,
he did not hesitate to issue a decree, letter of instruction, or any presidential issuance in anticipation of
any planned actions or activities to give the latter the facade or semblance of legality, wisdom, or
propriety. When he made the order to appellant Tabuena, President Marcos must only be understood to
order expeditious compliance with the requirements to facilitate immediate release of the money. There
was no way for Tabuena to entertain any fear that disobedience to the order because of its unlawfulness
or delay in the execution of the order due to compliance with the requirements would cause his head or
life. He offered no credible evidence for such fear. This Court should not provide one for him. That
Tabuena served Mr. Marcos until the end of the latters regime and even beyond only proved a loyalty not
based on fear but on other considerations.
Moreover, the manner the appellant effected the withdrawal was most unusual, irregular, and anomalous.
He has not shown any evidence that what he did was the usual practice in his office.
414
414
What happened in this case showed the appellants complicity as principals by direct participation in the
malversation of the MIAAs funds. The appellants should, therefore, be thankful to the Sandiganbayan for
holding them liable therefor only through negligence.
I vote then to AFFIRM in toto the assailed decision.
DISSENTING OPINION
ROMERO, J.:
Obedience, rightly directed, is a virtue well-worth cultivatingobedience of children to their elders;

obedience to lawful authority by citizens; obedience to the behests of what is highest and finest in ones
self.
Misguided, such as indiscriminate obeisance to questionable mandates, no matter if emanating from
authoritative figures whose slightest whisper and scribbled orders are law, this can lead man to perdition.
In government, a pliant bureaucracy that is disinclined to resist unethical, immoral, even downright illegal
directives from above is easily corrupted and can only bring disrepute to the entire system. In this
context, can subordinate public officials like herein petitioner escape criminal prosecution by the simple
expedient of claiming that they were merely following orders from a superior? This disquisition will
demonstrate that certain requisites are indispensable before anyone can claim immunity from penal
sanctions for seemingly justifiable acts.
This dissenting opinion will narrate the facts for the sake of accuracy for the ponencia seems to have
overlooked or glossed over vital circumstances which make the conclusion embodied herein irresistible.
Petitioners were charged with violation of Article 217 of the Revised Penal Code (the Code) for alleged
malversation of a total of P55 million from the public funds of the Manila International Airport Authority
(MIAA). The informations filed on three separate dates in 1986 accused them, as accountable
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415
officers, of intentionally withdrawing said amount for the ostensible purpose of paying a non-existent
obligation of MIAA to the Philippine National Construction Corporation (PNCC), but which they
misappropriated and converted for their personal use and benefit.
In their defense, petitioners claimed they acted in good faith and in compliance with a verbal and later, a
written order from no less than former President Ferdinand E. Marcos. In a Presidential Memorandum (the
Marcos Memorandum) dated January 8, 1986, the latter allegedly commanded petitioner Tabuena, in his
capacity as General Manager of MIAA, to pay immediately the Philippine National Construction
Corporation, thru this Office (Office of the President), the sum of FIFTY FIVE MILLION (P55,000,000.00)
PESOS in cash as partial payment of MIAAs account with said company mentioned in a Memorandum of
(Trade and Industry) Minister Roberto Ongpin to this Office dated January 7, 1985 . . . .1 (The Ongpin
Memorandum). On the assumption that MIAA indeed had a due and demandable debt to PNCC for work
done on the airport, Tabuena, with the help of Gerardo G. Dabao and Adolfo M. Peralta, MIAA Assistant
General Manager and Financial Services Department Acting Manager, respectively, made three
withdrawals from the account of MIAA with the Philippine National Bank first, on January 10, 1986 for P5
million, then on January 16, 1986 for another P25 million and lastly, on January 31, 1986 for P5 million. The
three managers checks covering the withdrawals were all applied for and issued in the name of Tabuena.
Curiously, while the checks were issued by the MIA extension office of PNB, they were encashed at the
Villamor Air Base branch. Each time the cash was delivered directly to the office of Marcos private
secretary, Fe Roa-Gimenez. The latter issued a receipt2 signed by her but only after the last delivery. No
PNCC receipt was ever given to petitioners.
____________________________
1 Exh. 1, Rollo, p. 231.

2 Exh. 3, ibid., p. 234.
416
416
On October 22, 1990, the Sandiganbayans First Division rendered a decision finding petitioners guilty.
Petitioners raise two issues, namely, that they were charged with intentional malversation (which they
labelled as malversation by direct appropriation) but were convicted of malversation by negligence, and
that they acted in good faith. As regards the first argument, the variance between the crime charged and
that proved by the prosecution is immaterial, as stated by the ponente.
As regards the second issue, it is argued that good faith is a valid defense in malversation for it negates
criminal intent. Petitioners claim that when they committed the acts complained of, they were merely
following then President Marcos oral and written directives. They rely on Article 11, paragraph 6 of the
Code which states, inter alia:
ART. 11. Justifying circumstances.The following do not incur any criminal liability:
xxx
xxx
xxx
6. Any person who acts in obedience to an order issued by a superior for some lawful purpose.
For an act to be justified under the abovequoted provision, therefore, three requisites must concur: (a) an
order must have been issued by a superior; (b) the order must be for a lawful purpose; and (c) the means
used by the subordinate in carrying out such order must itself be lawful.3
In the case at bar, Tabuena was allegedly ordered by President Marcos to pay the PNCC from MIAAs fund,
thus ostensibly meeting the first requirement but not the others. For there is a qualification which
significantly changes the picture. The payment was to be in cash and immediately made through the Office
of the President. It is to be pointed out that it is one thing to be ordered to pay a due and demandable
obligation; it is another to make such payment to someone
____________________________
3 Reyes, The Revised Penal Code, I, 1993, pp. 203-204; Kapunan and Faylona, Criminal Law, 1993, p. 82.
417

417
other than the lawful obligee and worse, when the subordinate is forced to breach official channels to
comply with the order.
It must be stressed that Tabuena and his co-accused, Peralta and Dabao, disregarded standard operating
procedures in following the Presidents order. As observed by the Sandiganbayan, there were no vouchers
to authorize the disbursements in question. There were no bills to support the disbursement. There were
no certifications as to the availability of funds for an unquestionably staggering sum of P55 Million.
Disbursement vouchers are specifically required under Sec. 4 (5) of Presidential Decree No. 1445 (P.D. No.
1445), while the certificate of availability of funds is needed to comply with Sec. 47, Title I-B, Bk. V of the
Administrative Code of 19874 and Sec. 344 of the Local Government Code of 1991.5 To compound the
duplicity, the checks, issued by one branch of PNB were encashed in anotherall made in cash instead of
by crossed check payable to PNCC! Conspicuously, such cash outlay was made without prior approval or
authority of the Commission on Audit.6 Finally, the last two payments were made despite the non-issuance
of a receipt for the first. In fact, the receipt given after the delivery of the last installment was not even
issued by the PNCC, the legal obligee and avowed recipient of the money. Instead it emanated from the
office of Roa-Gimenez, a complete stranger to the alleged contract between MIAA and PNCC, who did not
even indicate in what capacity she signed it. To compound the mystery, the money was even delivered to
her office, not in Malacaang, but at nearby Aguado Street. The entire process, done with haste and with a
total disregard of appropriate auditing re____________________________
4 Sec. 607, Chapter 26, Title VII, The Administrative Code.

5 A new provision which was not in Batas Pambansa Blg. 337 (The Local Government Code of 1983).
6 COA Circular No. 91350 dated March 4, 1991, increased the ceiling for cash payments from P5,000.00 to
P10,000.00. The Basic Guidelines for Internal Control, issued by the COA on January 31, 1977, set the
ceiling even lower at P1,000.00.
418
418
quirements was, in the words of petitioners themselves, an extraordinary transaction,7 admittedly out
of the ordinary and not based on normal procedure.8
Disbursement of government funds, especially one as gargantuan as the one made by petitioners, is a
complex process, unlike the basic over-the-counter transaction that they purportedly made it to appear.
Far from being lawful, the payment of the alleged obligation of MIAA to PNCC through the Office of the
President may at best be labelled as irregular. The term irregular expenditure signifies an expenditure
incurred without adhering to established rules, regulations, procedural guidelines, policies, principles or
practices that have gained recognition in law. Irregular expenditures are incurred without conforming with
prescribed usages and rules of discipline. There is no observance of an established pattern, course, mode
of action, behavior, or conduct in the incurrence of an irregular expenditure . . . .9
Specifically, disbursement of public funds must conform with the following principles:
(1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.10
(2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly,
for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when
such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or
government orphanage or leprosarium.11
(3) All money collected on any tax levied for a special purpose shall be treated as a special fund and paid
out for such purpose only. If the purpose for which this special fund was created has been
____________________________
7 TSN, May 2, 1990, p. 53.

8 Ibid., p. 17.
9 COA Circular No. 85-55-A, September 8, 1985.
10 Sec. 29 (1), Art. VI, 1987 Constitution (Sec. 18 [1], Art. VIII, 1973 Constitution).
11 Section 29 (2), ibid. (Section 18 [2], ibid.).
419
419
fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the Government.12
(4) All resources of the government shall be managed, expended or utilized in accordance with law and
regulations and safeguarded against loss or wastage through illegal or improper disposition to ensure
efficiency, economy and effectiveness in the operations of government. The responsibility to take care
such policy is faithfully adhered to rests directly with the chief or head of the government agency
concerned.13
(5) Disbursement or disposition of government funds or property shall invariably bear the approval of the
proper officials.14
(6) Claims against government funds shall be supported with complete documentation.15
(7) All laws and regulations applicable to financial transactions shall be faithfully adhered to.16
(8) Generally accepted principles and practices of accounting as well as of sound management and fiscal
administration shall be observed, provided that they do not contravene existing laws and regulations.17
Assuming arguendo that petitioners acted in good faith in following the Presidents order, undeniably, they
were negligent as found by the trial court. The instructions in the Presidents order should have sufficed to
put any accountable head of an office, Tabuena included, on guard. Why was he being required to pay
MIAAs obligation to the PNCC, if indeed there were any, and not directly to the latter but through the
Office of the President? Why was the entire transaction not coursed through proper channels, viz., the
accounting office?
____________________________
12 Section 29 (3), ibid. (new provision).

13 Section 1, Chapter I, Title I-B, Bk. V, The Administrative Code of 1987 (new).
14 Section 4 (5), P.D. 1445; Section 344, 1991 Local Government Code (new).
15 Section 4 (6) and Section 55 (4), ibid.; COA Circular 78-84, August 1, 1978, COA Circular 81-155.
16 Section 4 (7) and Section 55 (2), ibid.
17 Section 4 (8), ibid.
420
420
Why was such a huge disbursement to be made in cash, instead of by crossed check, which is not only
safer, faster, and more convenient, but in accord with auditing requirements?
Obedience to a superiors order does not connote blind obedience. Being the general manager of such a
mammoth organization like the MIAA, he should, at the very least, have exercised ordinary prudence by
verifying with the proper official under him whether the agency had indeed an outstanding indebtedness
to the PNCC before ordering any payment to be made through official channels. Such routine measures
were cavalierly disregarded. The whole process seemed no different from a petty, personal transaction.
As evidence later revealed, PNCCs receivables from MIAA amounted to P102,475,392.35, the bulk of
which comprised escalation charges. From that time until Corazon C. Aquino assumed the Presidency, a
total of P44.4 million was paid, but only P2 million of this in cash; the rest was set off or compensated
against other debts, or assigned to other creditors. The financial records did not show that PNCC received
any sums of money from MIAA during the period January to June, 1986 when the block payments were
being made in quarter millions. Only on September 25, 1986, long after President Marcos had gone, was an
assignment of P23 million actually made by MIAA in favor of PNCC.18
Even the Ongpin Memorandum, which is the basis of the Marcos Memorandum, failed to show where the
amount of P55 million cropped up. The former contained, inter alia, the following matters: (a) it requested
the Presidents approval of Minister Ongpins recommendations for eight (8) supplemental contracts
pertaining to the MIA Development Project (MIADP) between the Bureau of Air Transport (BAT) and
Philippine National Construction Corporation (PNCC), formerly CDCP, . . . .;19 (b) it informed the President
that PNCC had collectibles from MIAA only in the amount of P4.5 million, which is the difference between
the accomplishment
____________________________
18 TSN, March 17, 1989, pp. 7-20.

19 Exhibit 2, Rollo, p. 232.
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421
billings on the MIADP totalling P98.4 million and PNCCs advances of P93.9 million; and (c) it informed the
President that PNCC had potential escalation claims against MIAA in the amount of P99 million, potential
because they have yet to be approved by the Price Escalation Committee (PEC).
The only remaining piece of evidence which would show that MIAA owed PNCC anything as of the date of
the Marcos Memorandum is MIAAs balance sheet,20 which indicates its liability to PNCC as of December
31, 1985 to be P27,931,000.00.21 How can petitioners claim to have acted in good faith when they
withdrew the P55 million from MIAAs funds knowing fully well that the amount due PNCC was only a little
over half that amount, as shown by their own evidence?
The ponencia states that . . . . the good faith of Tabuena . . . . was not at all affected even if it later turned
out that PNCC never received the money.
It is precisely our thesis that Tabuena did not act in good faith in complying with the Presidents orders
because of the reasons aforestated, summarized as follows:
(a) The Presidents order was out of the ordinary and not based on normal procedure, which would
have entailed making an extraordinary transaction, as admitted by petitioners themselves. This proves
that they were, at the time they received the order, aware that paying MIAAs supposed P55 million
obligation to PNCC through the Office of the President in cash was questionable.
(b) As the head of MIAA, Tabuena should have been more cautious in disbursing the funds. He did not even
stop to think about the legality of the entire process even when he did not receive any kind of receipt for
the first two deliveries of money worth P50 million. When he did get a receipt, it was not an official receipt
from PNCC, the legal creditor, but from the Presidents private secretary. It must also be noted that the
cash was all delivered to Gimenez office at Aguado St., not to her office at Malacaang.
____________________________
20 Exhibit 4, ibid., p. 235.

21 Exhibit 4-a, id.
422
422
(c) Tabuena breached official channels to procure the money. There were no vouchers nor bills to
authorize or support the disbursements. There was also no certificate of availability of funds. The payment
was made in cash without COAs approval, at a time when the ceiling for cash payments was merely
P5,000.00. As stated earlier, no official receipt from PNCC supported the payment. The entire process was
done with haste and with a total disregard of appropriate auditing requirements.
As regards the payments to Roa-Gimenez, these were absolutely unwarranted because whatever
authority she claimed to have emanated, not from the creditor PNCC but from the President. Petitioners
were required by law to settle their indebtedness with PNCC directly, the party in whose favor the
obligation was constituted.22 The only instance when such questionable payment could have been valid
was if it had redounded to PNCCs benefit, which was not proved at all in this case.23 As creditor, the PNCC
was not even bound to accept payment, if any, from the Presidents private secretary, the latter being a
third person who had no interest whatsoever in the discharge of MIAAs obligation.24
The ponencia states that the Marcos Memorandum was patently lawful for no law makes the payment of
an obligation illegal.
This statement is premised on the existence of an established creditor-debtor relationship between the
payor and the payee. In this case, however, the obligor was being made to pay to a party other than the
legal obligee when no novation of the obligation has taken place. How can such an arrangement be
possibly in accord with law?
The preceding established facts clearly show that petitioners were remiss in discharging their duties as
accountable officers. As correctly observed by the court a quo:
____________________________
22 Art. 1240, Civil Code of the Philippines.

23 Art. 1241, par. 2, ibid.
24 Art. 1246, par. 1, id.
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423
. . . . (T)he Ongpin Memorandum could not justify Pres. Marcos memorandum of January 8, 1986; this in
turn could not justify Luis Tabuenas payment of P55 million to Fe Roa Gimenez.
. . . (T)he amount which could be payable by Tabuena in his capacity as head of the MIAA in January of
1986 could not be in excess of P27.931 millionuntil other claims had been duly approved. This approval,
on the other hand, could not come from the President but from the Price Escalation Committee (PEC)
before which, according to the Ongpin Memorandum itself, these claims for escalation had been submitted
for approval.
The PEC was not shown to have approved these amounts as of the time Tabuena made any of the
withdrawals for P55 million.
xxx
xxx
xxx
Tabuena says he had properly accounted for the P55 million he had withdrawn from the MIAAs funds. By
this Tabuena means he gave the money to Fe Roa Gimenez, presumably in representation of Pres.
Ferdinand Marcos.
Neither Pres. Marcos, however, nor Fe Roa Gimenez was entitled to receive or issue acquittance for a debt
in favor of the PNCC. Tabuenas claim, therefore, that he delivered the P55 million to her is not properly
accounting for P55 million.
In fact, when we come right down to it, nobody has issued an acquittance in behalf of the PNCC for the P55
million paid by Luis Tabuena. Since Tabuena says he was paying P55 million to the PNCC, it was incumbent
upon him to show a receipt from or in behalf of the PNCC. Tabuena has shown no receipt.
Tabuena was not authorized to part with government money without receipt.
When Tabuena gave P55 million intended for the PNCC to Fe Roa Gimenez or to Pres. Marcos, Tabuena
was paying government funds to persons not entitled to receive those funds. He was, therefore, guilty of
malversation of those funds.
xxx
xxx
xxx
Tabuena says he has accounted for the money because he has told us where the money went. But to
account, in the more proper use of the term, injects a sense of responsibility for the disposition of funds
for which one is answerable.
So when one asks if Tabuena has accounted for the P55 million belonging to the MIAA, the question really
is whether accused
424
424
Tabuena disposed of the sum in a responsible manner consistent with his duty. The answer must be in the
negative.
Payments must be delivered to payees. Payments intended for the PNCC must be delivered to the PNCC or
to someone authorized by the PNCC to accept payments for it. Neither Pres. Marcos nor Fe Roa Gimenez
are shown to have been authorized to accept money for the PNCC nor to deliver money to the PNCC (or to
any creditor of the MIAA for that matter). In fact, though Pres. Marcos may have been the Supreme
Magistrate of the land and the chief enforcer of the law, the law neither authorized him to pay for the
MIAA nor to accept money for the PNCC.
Accused Tabuenas statement, therefore, that he had presented overwhelming evidence of the delivery of
the P55 million to Pres. Marcos private secretary does not prove that he has accounted for that money,
that is, that he has properly disposed of that sum according to law.
On the contrary, what the evidence shows is that accused Tabuena delivered the P55 million to people
who were not entitled thereto, either as representatives of MIAA or of the PNCC.
It proves that Tabuena had deliberately consented or permitted through negligence or abandonment,
some other person to take such public funds. Having done so, Tabuena, by his own narration, has
categorically demonstrated that he is guilty of the misappropriation or malversation of P55 million of
public funds.25
Time and again, this Court has deferred to the findings of fact of the trial court, owing to its enviable
position of having seen the physical evidence and observed the witnesses as they testified. We see no
reason to depart now from this policy.
Tabuena was also personally accountable for the funds in his custody, being the head of a government
agency such as MIAA and discharging fiscal functions as such. In this regard, the Manual on Certificate of
Settlement and Balances (Rev. 1993) (The Manual) states, inter alia:
TITLE IV. ACCOUNTABILITY, RESPONSIBILITY AND LIABILITY FOR GOVERNMENT FUNDS AND PROPERTY
____________________________
25 Rollo, pp. 385-387.

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Government officials and employees, in the discharge of fiscal functions, shall ensure that all government
resources are managed, expended and utilized in accordance with law, rules and regulations and
safeguarded against loss or wastage thru illegal or improper disposition.
In the implementation of the above functions, they shall be guided by the following provisions:
SECTION 26. ACCOUNTABILITY FOR GOVERNMENT FUNDS AND PROPERTY
26.1.Every officer of any government agency whose duties permit or require the possession or custody of
government funds or property shall be accountable therefor and for the safekeeping thereof in conformity
with law.
26.2. Every accountable officer shall be properly bonded in accordance with law.
SECTION 27. RESPONSIBILITY FOR GOVERNMENT FUNDS AND PROPERTY
The head of any agency of the government is immediately and primarily responsible for all government
funds and property pertaining to his agency.
Persons entrusted with the possession or custody of the funds or property under the agency head shall be
immediately responsible to him without prejudice to the liability of either party to the government.
SECTION 28. SUPERVISION OVER ACCOUNTABLE OFFICERS
The head of any agency or instrumentality of the national government or any government-owned or
controlled corporation and any other self-governing board or commission of the government shall exercise
the diligence of a good father of a family in supervising the accountable officers under his control to
prevent the incurrence of loss of government funds or property, otherwise he shall be jointly and severally
liable with the person primarily accountable therefor. x x x.
SECTION 29. LIABILITY OF ACCOUNTABLE, SUPERIOR AND SUBORDINATE OFFICERS FOR GOVERNMENT
FUNDS
29.1Every officer accountable for government funds shall be liable for all losses resulting from the unlawful
deposit, use, or ap
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plication thereof and for all losses attributable to negligence in the keeping of the funds.
29.2Liability of Superior Officers.A public officer shall not be civilly liable for acts done in the
performance of his official duties, unless there is a clear showing of bad faith, malice or gross negligence.
xxx
xxx
xxx
29.5Liability of Subordinate Officers.No subordinate officer or employee shall be civilly liable for acts
done by him in good faith in the performance of his duties. However, he shall be liable for willful or
negligent acts done by him which are contrary to law, morals, public policy and good customs even if he
acted under order or instructions of his superiors.
SECTION 30. LIABILITY FOR UNLAWFUL/ILLEGAL EXPENDITURES OR USES OF GOVERNMENT FUNDS
30.1.1 Expenditures of government funds or uses of government property in violation of law or regulations
shall be a personal liability of the official or employee found to be directly responsible therefor.
30.1.2 Every expenditure or obligation authorized or incurred in violation of law or of the annual budgetary
measure shall be void. Every payment made in violation thereof shall be illegal and every official or
employee authorizing or making such payment, or taking part therein, and every person receiving such
payment shall be jointly and severally liable for the full amount so paid or received. (Italics supplied)
The ponente points out that our reference to the Manual supports the view that Tabuena was only civilly
liable. This is a misappreciation of the entire sense of the dissent. It must be borne in mind that said
reference was made after the conclusion was reached that Tabuena was indeed criminally liable for his
acts. It is hornbook knowledge that criminal liability carries with it the civil, specially when, as in this case,
the latter arose from the former. Hence, the statement Tabuena was also personally accountable for the
funds in his custody, . . . .
Sections 29.2 and 29.5 of the Manual, which the ponente uses to illustrate his point, actually includes
exceptions to the
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grant of immunity from civil liability of a public officer for acts done in the performance of his official
duties: (a) The preceding statement itself says that the acts must be done in the performance of his
official duties; (b) Sec. 29.2 exempts him from civil liability, unless there is a clear showing of bad faith,
malice or gross negligence; and (c) Sec. 29.5 states that he shall be liable for willful or negligent acts done
by him which are contrary to law, morals, public policy and good customs even if he acted under order or
instructions of his superiors. The quoted provisions have been once more underscored herein.
The ponencia further states that (t)here is no showing that Tabuena has anything to do whatsoever with
the execution of the MARCOS Memorandum. But very clearly, the admitted facts show that it was
precisely Tabuena who implemented or executed the said Memorandum.
The ponencia cites Acebedo where the accused was acquitted after it was shown that it was actually the
latters secretary who collected and converted the money. Tabuenas case is starkly different, for here it
was Tabuena himself who personally turned over the money to the Presidents secretary. It was done with
his full knowledge and consent, the obvious irregularity thereof notwithstanding.
In petitioner Peraltas case, we again yield to the factual findings of the trial court. It said:
. . . . The question is whether or not Peralta properly signed the third application for the issuance of a
Managers check drawn against the MIAAs savings account with the Villamor Office of the Philippine
National Bank.
At the time that accused Peralta signed the request for the issuance of a Managers Check, he was the
Acting Financial Services Manager of the MIAA and all withdrawals of funds required is (sic) co-signature.
The reason for the designation of more than one co-signatory is not merely useless ceremony; it is to serve
as a counter check for the propriety of the disbursement.
While, indeed, accused Luis Tabuena was the highest official in the MIAA and had authority to disburse its
funds, this authority
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was not absolute. It had to be for properly subsisting obligations and the disbursement had to be against
funds existing for that purpose. This is one reason for the need for supporting documentation before
disbursements of funds are authorized. And this is the special need for finance officers such as Adolfo
Peralta, as Financial Services Manager, to be co-signatories (sic): to ascertain the validity of the obligation
and, in this particular instance, the existence of the balance to be covered by the managers check the
application for which had been presented for his co-signature.
In this case, Adolfo Peralta speaks of the existence of (the) P27.9 million liability in favor of the PNCC as
justification for his acts herein. True enough, for that amount was the liability as of December 31, 1985. As
finance officer, however, he could not claim ignorance of the fact that as of January 29, 1986, the date of
the application for a managers check which he signed, two previous managers checks worth P25 million
each had already been applied for and the total amount of P50 million had already been withdrawn . . . .
It was only two weeks after these two withdrawals when Peralta, as Finance Services Manager,
participated in the authorization for the disbursement of another P5 million. This last withdrawal brought
up the total of withdrawals to P55 million for the payment of a P27.9 million obligation.
Thus while it is true, as Adolfo Peralta claims, that there was a liability in favor of the PNCC, there was no
way Peralta could disclaim responsibility for the excessive withdrawals to the extent of P5 million thereof
allegedly to pay that liability. There was no way Peralta could justify his co-signing the application for a
managers check for P5 million on January 29, 1986.
The ponente cites a dissenting opinion of Justice Isagani A. Cruz in Development Bank of the Philippines v.
Pandogar to uphold his ponencia. Need we remind our respected colleague that the corroborative value of
a dissenting opinion is minimal? Precisely, it supports a position contrary to, and obviously unacceptable to
the majority.
Petitioners were found guilty of malversation by negligence, which is possible even if the charge was for
intentional malversation. This does not negate, however, their criminal liability; it merely declares that
negligence takes the place of malice. Article 3 of the Code provides the rationale when it
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explicitly states that felonies are committed not only by means of deceit but also by means of fault.
The Sandiganbayans finding that petitioners converted and misappropriated the P55 million cannot simply
be brushed aside upon petitioners claim that the money was delivered in good faith to the Office of the
President under the mistaken assumption that the President was entitled to receive the same. They rely on
the case of People v. Fabian,26 which declared that (g)ood faith in the payment of public funds relieves a
public officer from the crime of malversation. But the very same decision also cites Article 217 to the
effect that malversation may be committed by an accountable public officer by negligence if he permits
any other person to take the public funds or property in his custody. It is immaterial if petitioners actually
converted or misappropriated MIAAs funds for their own benefit, for by their very negligence, they
allowed another person to appropriate the same.
The fact that no conspiracy was established between petitioners and the true embezzlers of the P55
million is likewise of no moment. The crime of malversation, as defined under Article 217 of the Code,27
was consummated the moment petitioners deliberately turned over and allowed the Presidents private
secretary to take custody of public funds intended as payment of MIAAs obligations to the PNCC, if
obligation there was at all. That petitioner Tabuena who was then General Manager of MIAA personally
and knowingly participated in the misfeasance compounds the maleficence of it all. Rank may have its
privileges but certainly a blatant disregard of law and administrative rules is not one of them. It must be
____________________________
26 Supra.
27 ART. 217. Malversation of public funds or property.Presumption of malversation.Any public officer
who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the
same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit
any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of
the misappropriation or malversation of such funds or property, . . . . (Emphasis supplied)
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etched in the minds of public officials that the underside of privileges is responsibilities.
As accountable officers, petitioners clearly transgressed administrative and legal bounds. Even on the
pretext of obeying a superiors seemingly legitimate orders, their actuations can hardly be justified. To rule
otherwise would set an alarming precedent where all that public officials who have unlawfully enriched
themselves at the peoples expense and those accused of graft and corruption would have to do to
exculpate themselves from any wrongdoing would be to invoke Article 11, paragraph 6 of the Code, thus
gaining instant immunity from criminal prosecution.
Government officials, particularly heads of their agencies who, by virtue of their exalted positions exude
power and authority but pay blind obeisance to orders of those higher up in the bureaucratic hierarchy
regardless of the illegality, impropriety or immorality of such orders, would do well to internalize this
prayer for national leaders delivered by former Senate President Jovito R. Salonga in Malacaang on
November 24, 1996:
x x x
xxx
xxx
When they begin to think of how much power they possess, help them to know the many things that are
beyond their powerthe change of seasons, sun and rain, moonlight and starlight and all the wonders of
Your creation;
When they are led to believe that they are exempt from public accountability, help them to know that they
are ultimately accountable to You, the God of truth and justice and mercy;
xxx
xxx
x x x.
The ponencia makes the final observation that the limitations on the right of judges to ask questions during
the trial were not observed by respondent court; that the three Justices who heard the testimonies asked
37 questions of witness Francis Monera, 67 of Tabuena, and 41 of Peraltamore than what the
prosecutors and defense counsels propounded.
While such numbers unduly disturbed the ponente, it cannot be gainsaid that such action by the members
of the First
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Division of respondent Sandiganbayan was, under the circumstances, not only necessary and called for, but
likewise legally acceptable.
In the first place, even the ponente makes the observation that petitioners did not raise this matter as
error. In other words, they did not feel prejudiced by the respondent courts actuations; nor did they
construe the series of questions asked of them by the Justices as indicative of any unfairness or partiality
violative of their right to due process.
Then, too, it must be noted that there is a difference in the right of a judge in a non-jury system like that
obtaining in the Philippines, to question witnesses or parties themselves, and that of a judge in a jury trial.
The bulk of jurisprudence used in the ponencia was decided in the United States, where the jury system is
extensively utilized in civil as well as in criminal trials. In this regard, (i)t has been noted that the opinion
of the judge, on account of his position and the respect and confidence reposed in him and in his learning
and assumed impartiality, is likely to have great weight with the jury, and such fact of necessity requires
impartial conduct on his part. The judge is a figure of overpowering influence, whose every change in facial
expression is noted, and whose every word is received attentively and acted upon with alacrity and
without question.28
Thus, while a trial judge is expected to be circumspect in his choice of words lest they be construed as signs
of partiality, he is not, however, required to remain silent and passive throughout a jury trial;29 he
should, instead, conduct a trial in an orderly way with a view to eliciting the truth and to attaining justice
between the parties.30
Inasmuch as it is the jury which has the burden of meting out justice, it is acceptable for a judge in a jury
trial to ask
____________________________
28 75 Am Jur 2d, Trial, Sec. 272, citing U.S. v. Candelaria-Gonzalez (CA5 Tex) 547 F2d 291.
29 Ibid.
30 Id., citing U.S. v. Slone (CA6 Ky) 833 F2d 595, 24 Fed Rules Evid Serv 339.
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any question which would be proper for the prosecutor or defense counsel to ask so long as he does not
depart from a standard of fairness and impartiality.31 Questions designed to clarify points and to elicit
additional relevant evidence, particularly in a non-jury trial, are not improper.32
The numerous questions asked by the court a quo should have been scrutinized for any possible influence
it may have had in arriving at the assailed decision. The true test for the appropriateness or
inappropriateness of court queries is not their quantity but their quality, that is, whether the defendant
was prejudiced by such questioning.33 To repeat, petitioners did not feel prejudiced by the trial courts
actions; otherwise, they would have raised this issue in the instant petition.
The ponencia states that he is well aware of the fear entertained by some that this decision may set a
dangerous precedent in that those guilty of enriching themselves at the expense of the public would be
able to escape criminal liability by the mere expedient of invoking good faith. Our position has been
either misinterpreted or misread for we do not merely speak of good faith. In fact, our main thrust is that
such a breed of people who enriched themselves at the expense of the public might handily use as an
excuse or a justifying circumstance to escape liability their having obeyed the lawful orders of their
superior under Article 11, paragraph 6 of the Revised Penal Code.
The ponente makes a plea towards the close of his decision, that we should not act impulsively in the
instant case. In our
____________________________
31 Id., citing Johnston v. Birmingham (Ala App) 338 So 2d 7.

32 Id., citing Eggert v. Mosler Safe Co. (Colo App) 730 P2d 895; Law Offices of Lawrence J Stockler, PC v.
Rose, 174 Mich App 14, 436 NW2d 70, app den 434 Mich 862, reconsideration den (Mich) 1990 Mich LEXIS
962, and reconsideration den (Mich) 1990 Mich LEXIS 963.
33 Id., citing U.S. v. Kelly (CA3 NJ) 329 F2d 314; Woodring v. U.S. (CA8 Mo) 311 F2d 417, cert den 373 US
913, 10 L Ed 2d 414, 83 S Ct 1304.
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eagerness to bring to justice the malefactors of the Marcos regime, we must not succumb to the
temptation to commit the greatest injustice of visiting the sins of the wrongdoers upon an innocent.
In our opinion, precisely, Tabuena and Peralta are wrongdoers, guilty of acts punishable by law. Needless
to say, under our system of laws, they must be meted out the corresponding penalty. We draw attention
to the fact that nowhere in this dissent do we single out the so-called malefactors of the Marcos regime
alone. We addressed ourselves to all who commit venalities at the expense of the people, as defined and
punished by law but who try to justify their actions by invoking the very law which they violated.
For the reasons stated above, I vote to affirm petitioners conviction by respondent court.
DISSENTING OPINION
PUNO, J.:
I join the Dissenting Opinion of Madam Justice Flerida Ruth Romero where I find both right and
righteousness happily intersecting each other. I am, however, constrained to write this brief dissent in view
of the impact of the majority decision to our criminal justice system which many perceive leaves much to
be desired.
I
It should be immediately stressed that petitioners were convicted of the crime of malversation by
negligence. The felony was committed by petitioners not by means of deceit (dolo) but by fault (culpa).
According to Article 3 of the Revised Penal Code, there is fault when the wrongful act results from
imprudence, negligence, lack of foresight, or lack of skill. Justice J.B.L. Reyes explains the difference
between a felony committed by deceit and that committed by fault in this wise: x x x In intentional crimes,
the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude
or condition behind the act, the dangerous
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recklessness, lack of care or foresight, the imprudencia punible.1
In light of this well-carved distinction, the long discourse of the majority decision hailing petitioners good
faith or lack of intent to commit malversation is off-line. To justify the acquittal of petitioners, the majority
should strive to show that petitioners did not commit any imprudence, negligence, lack of foresight or lack
of skill in obeying the order of former President Marcos. This is nothing less than a mission impossible for
the totality of the evidence proves the utter carelessness of petitioners in the discharge of their duty as
public officials. The evidence and their interstices are adequately examined in the dissent of Madame
Justice Romero and they need not be belabored.
For the same reason, the majority cannot rely on the doctrine of mistake of fact as ground to acquit
petitioners. It found as a fact that x x x Tabuena acted under the honest belief that the P55 million was a
due and demandable debt x x x. This Court has never applied the doctrine of mistake of fact when
negligence can be imputed to the accused. In the old, familiar case of People vs. Ah Chong,2 Mr. Justice
Carson explained that ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to
negative a particular intent which under the law is a necessary ingredient of the offense charged (e.g., in
larceny animus furandi, in murder, malice, etc.), cancels the presumption of intent and works an acquittal,
except in those cases where the circumstances demand a conviction under the penal provisions touching
criminal negligence. Hence, Ah Chong was acquitted when he mistook his houseboy as a robber and the
evidence showed that his mistake of fact was not due to negligence. In the case at bar, the negligence of
the petitioners screams from page to page of the records of the case. Petitioners themselves admitted that
the payments they made were out of the ordinary and not based on normal procedure.
____________________________
1 Aquino, The Revised Penal Code, Vol. I, 1976 ed., p. 60.

2 15 Phil. 488, 493.
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As aforestated, the cornerstone of the majority decision is its finding of good faith on the part of the
petitioners. Viewed from a more critical lens, however, the evidence cannot justify a finding of good faith.
The violations of auditing rules are too many yet the majority merely winks at them by ruling that
petitioner Tabuena x x x did not have the luxury of time to observe all auditing procedures of
disbursement considering the fact that the Marcos Memorandum enjoined immediate compliance with
the directive that he forward to the Presidents Office the P55 million in cash. With due respect, I am
disquieted by the mischiefs that will be mothered by this ruling. To begin with, the country was no longer
under martial rule in 1986 and petitioners were under no compulsion to violate our laws. It also ought to
be obvious that the order for immediate compliance even if made by the former President cannot be
interpreted as a green signal by a subordinate official to disregard our laws. Indeed, no person, not even
the President can order the violation of our laws under any excuse whatsoever. The first and foremost duty
of the President is to uphold the sanctity of our laws. Thus, the Constitution requires the President to take
an oath or affirmation where he makes the solemn pledge to the people: I do solemnly swear (or affirm)
that I will faithfully and conscientiously fulfill my duties as President of the Philippines, preserve and
defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of
the Nation. x x x.3 To be sure, the need for petitioners to make an immediate payment is really not that
immediate. The facts show that former President Marcos first called petitioner Tabuena by telephone and
asked him to make the payment. One week after or on January 8, 1986, the former President issued a
written memorandum reiterating the order to pay. Payments were made in three tranchesthe first on
January 10, 1986, the second on January 16, 1986 and the third on January 31, 1986. Clearly then, it took
petitioner one month to comply with the Order. Given the personnel of petitioner Tabuena in
____________________________
3 Section 5, Article VII of the Constitution.

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436
his office, one month provides enough time to comply with the rules. In any event, petitioners did not
request former President Marcos for additional time to comply with the rules if they felt in good faith that
they needed more time. Petitioners short-circuited the rules by themselves. Nothing in the Marcos
Memorandum compelled them to disregard the rules. The Memorandum merely stated Your immediate
compliance is appreciated. The language of the Memorandum was as polite as it could be. I fail to discern
any duress in the request as the majority did.
II
The determination of the degree of participation that should be allowed to a judge in the questioning of a
witness is a slippery slope in constitutional law. To a certain extent, I agree with the majority that some of
the questions propounded by the justices of the respondent Court crossed the limits of propriety. Be that
as it may, I am not prepared to conclude with certainty that the text and tone of the questions denied
petitioners the right to an impartial trial. Bias is a state of mind which easily eludes evidence. On the basis
of the evidence before us, we cannot hold that we have plumbed the depth of prejudice of the justices and
have unearthed their partiality. The more telling evidence against the petitioners are documentary in
nature. They are not derived from the answers elicited by questions from the justices which the majority,
sua sponte, examined and condemned as improper.
III
Finally, I can not but view with concern the probability that the majority decision will chill complaints
against graft pending before the respondent Court. From the majority decision, it is crystalline that
petitioners blindly obeyed the Marcos Memorandum despite its fatal and facial flaws. The majority even
quotes these inculpatory admissions of petitioner Tabuena, viz:4
____________________________
4 See pp. 41-45 of majority decision.

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437
x x x
AJ del Rosario
x x x
Q
If it was for the payment of such obligation why was there no voucher to cover such payment? In other
words, why was the delivery of the money not covered by any voucher?
A
The instruction to me was to give it to the Office of the President, your Honor.
PJ Garchitorena
Q
Be that as it may, why was there no voucher to cover this particular disbursement?
A
I was just told to bring it to the Office of the President, your Honor.
AJ del Rosario
Q
Was that normal procedure for you to pay in cash to the Office of the President for obligations of the MIAA
in payment of its obligation to another entity?
A
No, you Honor, I was just following the Order to me of the President.
PJ Garchitorena
Q
So the Order was out of the ordinary?
A
Yes, your Honor.
AJ del Rosario
Q
Did you file any written protest with the manner with which such payment was being ordered?
A
No, your Honor.
Q
Why not?
A
Because with that instruction of the President to me, I followed your Honor.
x x x
AJ Hermosisima
Q
Why were you not made to pay directly to the PNCC considering that you are the manager of MIA at that
time and the PNCC is a separate corporation, not an adjunct of Malacaang?
A
I was just basing it from the Order of the Malacaang to pay PNCC through the Office of the President,
your Honor.
x x x
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438
Q
You agreed to the order of the President notwithstanding the fact that this was not the regular course or
Malacaang was not the creditor?
A
I saw nothing wrong with that because that is coming from the President, your Honor.
In effect, petitioners shocking submission is that the President is always right, a frightening echo of the
antedeluvian idea that the King can do no wrong. By allowing the petitioners to walk, the majority has
validated petitioners belief that the President should always be obeyed as if the President is above and
beyond the law. I cannot accept this dangerous ruling even if I look at it through the eyes of faith. One of
the gospels in constitutional law is that the President is powerful but is not more paramount than the law.
And in criminal law, our catechism teaches us that it is loyalty to the law that saves, not loyalty to any man.
Let us not bid goodbye to these sacrosanct principles.
DISSENTING OPINION
PANGANIBAN, J.:
In the main, the majority ruled that Petitioners Luis Tabuena and Adolfo Peralta should be acquitted
because they were merely obeying the order of then President Ferdinand E. Marcos to deliver thru this
Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAAs
account with the Philippine National Construction Company. In their Dissenting Opinions, Justices
Romero, Davide and Puno have shown how weak and unpersuasive this ruling is under applicable
Philippine laws and jurisprudence. I will not repeat their illuminative discussions. Let me just stress three
more points:
(1) The defense of obedience to a superiors order is already obsolete. Fifty years ago, the Nazi war
criminals tried to justify genocide against the Jews and their other crimes against humanity by alleging they
were merely following the orders of Adolf Hitler, their adored fuehrer. However, the International Military
Tribunal at Nuremberg in its Judgment
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dated October 1, 1946,1 forcefully debunked this Nazi argument and clearly ruled that (t)he true test x x x
is not the existence of the order but whether moral choice was in fact possible.
In 1947, the United Nations General Assembly adopted a Resolution firmly entrenching the principle of
moral choice, inter alia, as follows:2
The fact that a person acted pursuant to an order of his government or of a superior does not relieve him
from responsibility under international law, provided a moral choice was in fact possible to him.
In the Nuremberg trials, the defendants were military officers of the Third Reich who were duty-bound to
obey direct orders on pain of court martial and death at a time when their country was at war.
Nonetheless, they were meted out death sentences by hanging or long-term imprisonments. In the present
case, the accused are civilian officials purportedly complying with a memorandum of the Chief Executive
when martial law had already been lifted and the nation was in fact just about to vote in the snap
presidential election in 1986. The Sandiganbayan did not impose death but only imprisonment ranging
from seventeen years and one day to twenty years. Certainly a moral choice was not only possible. It was
in fact available to the accused. They could have opted to defy the illegal order, with no risk of court
martial or death. Or they could have resigned. They knew or should have known that the P55 million was
to be paid for a debt that was dubious3 and in a manner that was irregular. That the money was
____________________________
1 41 AJIL 172, 221 (1947).

2 For the full text of the Resolution, please see Salonga and Yap, Public International Law, Third Edition, p.
235-236.
3 Submitted before the Sandiganbayan was a Memorandum of then Minister of Trade Roberto Ongpin
dated January 7, 1985, stating that the MIAA had a total account of P98.4 million due the PNCC.
Subtracting however the outstanding advances totalling P93.9 x x x will leave a net amount due to PNCC
of only P4.5 mil
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440
to be remitted in cold cash and delivered to the private secretary of the President, and not by the normal
crossed check to the alleged creditor, gave them a moral choice to refuse. That they opted to cooperate
compounded their guilt to a blatant conspiracy to defraud the public treasury.
(2)Resurrecting this internationally discredit Nazi defense will, I respectfully submit, set a dangerous
precedent in this country. Allowing the petitioners to walk deprives this Court of the moral authority to
convict any subaltern of the martial law dictator who was merely following orders. This ludicrous defense
can be invoked in all criminal cases pending not only before this Court but more so before inferior courts,
which will have no legal option but to follow this Courts doctrine.4
(3)Mercy and compassion are virtues which are cherished in every civilized society. But before they can be
invoked, there must first be justice. The Supreme Courts duty is to render justice. The power to dispense
pardon lies elsewhere. Verily, the Constitution ordains a final conviction by the courts before the President
can exercise his power to wipe away penalty.5 Such is the legal and natural precedence and order of
things: justice first before mercy. And only he who sincerely repents his sin, restitutes for it, and reforms
his life deserves forgiveness and mercy.
____________________________
lion, explained Mr. Ongpin. Even if the P30 million advances which Pres. Marcos is claimed to have
authorized PNCC to retain, is added to this net amount due of P4.5 million, the total would run up to only
P34.5 millionstill P20.5 million shy of the P55 million actually disbursed.
4 In Ty vs. Trampe, 250 SCRA 500, 521, December 1, 1995, judges were admonished to follow established
laws, doctrines and precedents. Hence, once a case has been decided one way, then another case
involving exactly the same point at issue should be decided in the same manner. Tay Chun Suy vs. Court of
Appeals, 229 SCRA 151, 163, January 7, 1994.
5 In People vs. Salle, Jr., 250 SCRA 581, December 4, 1995 this Court expressly held that Section 19, Article
VII of the present Constitution prohibits the presidential grant of pardon unless there is conviction by final
judgment of the accused.
441

441
Sulit vs. Court of Appeals
I therefore vote to AFFIRM the assailed Sandiganbayan Decision convicting the petitioners of malversation.
Petitioners acquitted.
Notes.Where the information identifies the questioned funds to be public funds and charges that these
funds have been received and misapplied or misappropriated, it adequately expresses in essence the
elements of the crime of malversation. (Ocampo III vs. Sandiganbayan, 236 SCRA 1 [1994])
The act of encashing a check intended for a particular project and subsequently using the money for some
other purpose constitutes misappropriation. (Nizurtado vs. Sandiganbayan, 239 SCRA 33 [1994])
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Justifying Circumstances

2. People vs CA and Tangan

5. People vs Chua Hiong

10. Baxinela vs People

11. Pomoy vs People

12. Angcaco vs People

13. Tabuena vs People

Version of the Defense

Hence, this appeal.

2. People vs CA and Tangan

The facts are stated in the opinion of the Court.

VOL. 352, FEBRUARY 23, 2001

1 Rollo in G.R. No. 105830, pp. 125-126.

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19 G.R No. 127444, September 13, 2000, 340 SCRA 207.

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ARTICLE 13 Mitigating Circumstances.The following are mitigating circumstances:

VOL. 352, FEBRUARY 23, 2001

SUPREME COURT REPORTS ANNOTATED

32 Johnson v. Emerson (1871).

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40 People v. delos Santos, 85 Phil. 870.

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VOL. 121, APRIL 20, 1983

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The facts are stated in the opinion of the Court.

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People vs. Narvaez

VOL. 61, NOVEMBER 25, 1974

The facts are stated in the opinion of the Court.

VOL. 61, NOVEMBER 25, 1974

2 Marriage contract marked Exhibit G.

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8 T.s.n. August 12, 1958, pp. 58-68, witness Cunigunda Caballero.

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the ground when you made the thrust to your husband?

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105 Phil. 591; People vs. Macabenta, 106 Phil. 77.

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5. People vs Chua Hiong

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26 Id., at pp. 57-59.

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35 TSN, October 7, 1991, pp. 12, 14-15.

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