THIRD DIVISION

RAMONITO MANABAN, G.R. No. 150723

Petitioner,
QUISUMBING, J.,
Chairperson,
- versus - CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
COURT OF APPEALS and Promulgated:
THE PEOPLE OF THE PHILIPPINES,
Respondents. July 11, 2006

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D E C I S I O N

CARPIO, J.:

The Case

This is a petition for review[1] of the Decision[2] dated 21 May 2001 and the
Resolution[3] dated 8 November 2001 of the Court of Appeals in CA-G.R. CR No.
23790. In its 21 May 2001 Decision, the Court of Appeals affirmed the Decision of
the Regional Trial Court of Quezon City, Branch 219 (trial court), finding Ramonito
Manaban (Manaban) guilty of the crime of homicide. In its 8 November 2001
Resolution, the Court of Appeals modified its Decision by reducing the award for
loss of earning capacity.

The Facts
The facts as narrated by the trial court are as follows:

On October 11, 1996, at around 1:25 oclock in the morning, Joselito Bautista, a
father and a member of the UP Police Force, took his daughter, Frinzi, who
complained of difficulty in breathing, to the UP Health Center. There, the doctors
prescribed certain medicines to be purchased. Needing money therefore, Joselito
Bautista, who had taken alcoholic drinks earlier, proceeded to the BPI Kalayaan
Branch to withdraw some money from its Automated Teller Machine (ATM).

Upon arrival at the bank, Bautista proceeded to the ATM booth but because he could
not effectively withdraw money, he started kicking and pounding on the machine. For
said reason, the bank security guard, Ramonito Manaban, approached and asked him
what the problem was. Bautista complained that his ATM was retrieved by the machine
and that no money came out of it. After Manaban had checked the receipt, he
informed Bautista that the Personal Identification Number (PIN) entered was wrong
and advised him to just return the next morning. This angered Bautista all the more
and resumed pounding on the machine. Manaban then urged him to calm down and
referred him to their customer service over the phone. Still not mollified,
Bautista continued raging and striking the machine. When Manaban could no longer
pacify him, he fired a warning shot. That diverted the attention of Bautista.
Instead of venting his ire against the machine, he confronted Manaban. After some
exchange of words, a shot rang out fatally hitting Bautista.[4]

On 24 October 1996, Manaban was charged with the crime of murder. The Information
states:
That on or about the 11th day of October 1996, in Quezon City, Philippines, the
above-named accused, armed with a gun, and with intent to kill, qualified by
treachery, did then and there wilfully, unlawfully and feloniously attack, assault
and employ personal violence upon the person of one JOSELITO BAUTISTA, by then and
there, shooting him at the back portion of his body, thereby inflicting upon said
JOSELITO BAUTISTA mortal wounds which were the direct and immediate cause of his
untimely death, to the damage and prejudice of the heirs of the said JOSELITO
BAUTISTA.[5]
When arraigned on 4 December 1996,[6] Manaban pleaded not guilty to the offense
charged. Trial then followed.

The Trial

The Prosecutions Version

The prosecution presented six witnesses: (1) Faustino Delariarte (Delariarte); (2)
SPO1 Dominador Salvador (SPO1 Salvador); (3) Rodolfo Bilgera (Bilgera); (4)
Celedonia H. Tan (Tan); (5) Dr. Eduardo T. Vargas (Dr. Vargas); and (6) Editha
Bautista (Editha).

Delariarte was a security guard who was employed by the same security agency as
Manaban. Delariarte testified that in the early morning of 11 October 1996, their
duty officer, Diosdado Morga, called him and informed him that one of the guards
stationed at the BPI Kalayaan Branch (BPI Kalayaan) was involved in a shooting
incident. When he arrived at the bank, Delariarte saw Manaban inside the bank using
the phone. He also saw Joselito Bautista (Bautista) lying on the ground but still
alive. He then told their company driver, Virgilio Cancisio (Cancisio), to take
Bautista to the hospital but to be careful since there was a gun tucked in
Bautistas waist. Bautista allegedly reeked of alcohol. Delariarte further testified
that when Manaban came out of the bank, Manaban admitted to Delariarte that he shot
Bautista.[7]
SPO1 Salvador was a police investigator assigned at Station 10, Philippine National
Police-Central Police District Command (PNP-CPDC) of Quezon City. SPO1 Salvador
testified that on 11 October 1996, about 2:05 a.m., the duty desk officer SPO2
Redemption Negre sent him, SPO1 Jerry Abad and SPO1 Ruben Reyes to BPI Kalayaan to
investigate an alleged shooting incident. SPO1 Salvador testified that when they
arrived at BPI Kalayaan, they were met by Delariarte and Cancisio. Manaban then
approached them and surrendered his service firearm, a .38 caliber revolver, to
SPO1 Salvador. Manaban allegedly admitted shooting Bautista. SPO1 Salvador and his
team investigated the crime scene. According to SPO1 Salvador, he saw Bautista
lying on his back near the Automated Teller Machine (ATM). A .38 caliber revolver
inside a locked holster was tucked in Bautistas right waist. SPO1 Salvador noticed
that Bautista, who was still breathing, had been shot in the back. They brought
Bautista to the East Avenue Medical Center where Bautista later died. Thereafter,
they proceeded to the police station and turned over Manaban to their desk officer
for proper disposition and investigation.[8]

Dr. Vargas, National Bureau of Investigation (NBI) Medico-Legal Officer, conducted

an autopsy on Bautistas cadaver. Dr. Vargas testified that Bautista died of a
gunshot wound. According to him, the point of entry of the bullet was at the back,
on the right side of the body and there was no exit point. He stated that he was
able to recover the slug from the left anterior portion of the victims body and
that he later submitted the slug to the NBI Ballistics Division. Dr. Vargas further
stated that the bullet wound was fatal because the bullet hit the right lung and
lacerated parts of the liver, stomach and the pancreas. Based on the location of
the gunshot wound, Dr. Vargas deduced that the assailant must have been behind the
victim, on the right side, when he shot the victim.[9] Dr. Vargas also testified
that the absence of signs of near-fire indicates that the distance between the
muzzle of the gun and the point of entry was more than 24 inches. During cross-
examination, Dr. Vargas testified that he was able to take blood samples from the
victim which, based on the NBI Chemistry Division analysis, tested positive for
alcohol.[10] Dr. Vargas issued a certificate of post-mortem examination[11] and an
autopsy report.[12]

Bilgera was a ballistician at the Firearms Investigation Division (FID) of the NBI.
Bilgera testified that upon receiving a letter-request dated 11 October 1996 from
PNP Police Inspector Percival Fontanilla, he conducted a ballistic examination on
the following specimens submitted to him:

1. One (1) ARMSCOR 2015, Caliber .38 Revolver, SN-28909 marked DBS;
2. One (1) ARMSCOR 200, Caliber .38 Revolver, SN-P03471 marked DBS;
3. One (1) Caliber .38 one badly deformed copper coated lead bullet marked RM;
4. Two (2) Caliber .38 empty shells marked RM-1 and RM-2;
5. One (1) Caliber .38 misfired ammunition marked RM-3;
6. Nine (9) Caliber .38 ammunition marked RM-4, RM-5, RM-6 and JB-1 to JB-6; and
7. One (1) Caliber .38 deformed copper coated lead bullet marked JB. (Re-FID No.
606-14-1096 [N-96-2047]).[13]

Based on the examination, Bilgera concluded that the bullet which was extracted
from Bautistas body by the medico-legal officer was fired from the ARMSCOR 2015 .38
Caliber revolver with Serial No. 28909[14] and that the empty shells also came from
the same gun. Bilgera submitted a written report[15] on the result of his
examination.

Editha, the widow of Joselito Bautista, testified that she was married to Bautista
on 22 December 1993 in civil rites and that they have four children, the eldest of
whom was 13 years old. Editha stated that her husband, who was a member of the
University of the Philippines Police Force (UP Police Force) since 1985, was
receiving a monthly salary ofP5,050 at the time of his death. She narrated that on
11 October 1996, about 1:25 a.m., her husband brought their daughter Frinzi who had
an asthma attack to the UP HealthCenter where she was confined for three days.
According to Editha, her husband then left to withdraw money at BPI Kalayaan for
the purchase of medicines. Later, she was fetched by members of the UP Police Force
who informed her that her husband had been shot. Editha claimed that as a
consequence of her husbands death, she spent more thanP111,000[16] for the nine-day
wake, embalmment and funeral services.[17]

The prosecution and the defense agreed to dispense with the testimony of Tan, the
Assistant Manager of BPI Kalayaan. Instead, they just agreed to stipulate that on
11 October 1996, about 7:45 a.m., Tan and BPI Custodian Elma R. Piano retrieved BPI
Express Teller Card No. 3085-2616-21 issued to Bautista which was captured by the
ATM because a wrong Personal Identification Number (PIN) was entered.[18]

The Defenses Version

The defense presented four witnesses: (1) Manaban; (2) Renz Javelona (Javelona);
(3) Tan; and (4) Patrick Peralta (Peralta).
Manaban, the accused, testified that he was employed by Eagle Star Security Agency
as a security guard and was assigned at BPI Kalayaan. On 10 October 1996, he was on
duty from 7:00 p.m. until 7:00 a.m. the following day.

Manaban narrated that on 11 October 1996, about 1:40 a.m., Bautista tried to
withdraw money from the ATM. Manaban then saw Bautista pounding and kicking the
ATM. When Manaban asked Bautista what was the problem, Bautista replied that no
money came out from the machine. According to Manaban, Bautista appeared to be
intoxicated.

Manaban looked at the receipt
that a wrong PIN was entered.
Bautistas ATM card because he
return the following day when
around.
issued to Bautista and saw that the receipt indicated
Manaban informed Bautista that the ATM captured
entered the wrong PIN. He then advised Bautista to
the staff in charge of servicing the ATM would be

Bautista replied that he needed the money very badly and then resumed pounding on
the ATM. Manaban tried to stop Bautista and called by telephone the ATM service
personnel to pacify Bautista. Bautista talked to the ATM service personnel and
Manaban heard him shouting invectives and saw him pounding and kicking the ATM
again.

When Manaban failed to pacify Bautista, Manaban fired a warning shot in the air.
Bautista then faced him and told him not to block his way because he needed the
money very badly. Bautista allegedly raised his shirt and showed his gun which was
tucked in his waist. Manaban stepped back and told Bautista not to draw his gun,
otherwise he would shoot.

However, Bautista allegedly kept on moving toward Manaban, who again warned
Bautista not to come near him or he would be forced to shoot him. Bautista suddenly
turned his back and was allegedly about to draw his gun. Fearing that he would be
shot first, Manaban pulled the trigger and shot Bautista.

Manaban recounted that he then went inside the bank and called the police and his
agency to report the incident. While he was inside the bank, a fellow security
guard arrived and asked what happened. Manaban answered, wala yan, lasing.

Later, a mobile patrol car arrived. Manaban related the incident to the police
officer and informed him that Bautista was still alive and had a gun. Manaban then
surrendered his service firearm to the police officer. According to Manaban, he
fired his gun twice once in the air as a warning shot and the second time at
Bautista who was about four meters from him.[19]

On cross-examination, Manaban further explained that after he fired the warning

shot, Bautista kept coming toward him. Manaban pointed his gun at Bautista and
warned him not to come closer. When Bautista turned his back, Manaban thought
Bautista was about to draw his gun when he placed his right hand on his waist.
Fearing for his life, he pulled the trigger and shot Manaban. According to Manaban,
[n]oong makita ko siya na pabalikwas siya, na sadya bubunot ng baril, sa takot ko
na baka maunahan niya ako at mapatay, doon ko na rin nakalabit yung gatilyo ng
baril. Manaban declared that it did not occur to him to simply disable the victim
for fear that Bautista would shoot him first.[20]

Javelona was an ATM Service Assistant of BPI. Javelona testified that on 11 October
1996, between 1:30 a.m. and 2:00 a.m., she received a call from a client at BPI
Kalayaan.The client, who was later identified as Bautista, complained: Nagwi-
withdraw ako dito sa ATM Kalayaan. Mali daw yung PIN ko, alam ko tama yung PIN ko.
Ilang beses ko nang ginamit, mali pa rin. Kailangan kong mag-withdraw.

Javelona tried to placate Bautista and advised him not to insert his card anymore
because it might be captured by the machine and to try again later in the morning.
Bautista allegedly answered angrily: Na capture na nga, eh! Tama na nga yung PIN
number [sic]. Hindi ako pwedeng hindi makakuha ng pera. Kailangan kong bumili ng
gamot para sa anak ko. Hindi ko naman kasalanan ito. Javelona replied: Sir, hindi
ho natin makukuha ang card ninyo ngayon kasi ang makaka-open lang ho ng ATM machine
ay ang officer ng Kalayaan Branch. Even if makuha natin ang card ninyo ngayon,
hindi pa ninyo magagamit ngayon. Magagamit lang ninyo as soon as mag-pa-encode kayo
ng PIN number [sic].

Bautista then reiterated angrily his dire need to withdraw money for the medicine
of his daughter. Javelona apologized to Bautista and informed him that there was
really nothing she could do at that time. She also advised Bautista to go back to
the bank at 9:00 a.m. to get his ATM card and also to withdraw money over the
counter. Bautista refused to be pacified and started cursing so Javelona decided to
hang up the phone.[21]

Tan, the Assistant Manager of BPI Kalayaan, testified that when she reported for
work in the morning of 11 October 1996, she discovered that the ATM was out of
order. According to Tan, the ATM keyboard was not properly mounted and the keys
were damaged. Also, the telephone beside the ATM was hung up. Tan then called
Peralta, the technician, to have the ATM repaired. When Peralta opened the ATM,
they found Bautistas ATM card which was captured by the machine.[22]

Peralta, a Customer Engineer Specialist, testified that on 11 October 1996, BPI

Kalayaan sought his assistance regarding their ATM. When Peralta arrived at BPI
Kalayaan, he talked to Tan and then proceeded to the ATM to assess the damage.
According to Peralta, the ATM keyboard was damaged and mis-aligned.[23]

The Trial Courts Ruling

On 14 April 1999, the trial court rendered judgment, the dispositive portion of
which reads:

WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of
Homicide, the Court hereby sentences the accused to suffer the penalty of
imprisonment ranging from FOUR (4) YEARS and TWO (2) MONTHS of Prision
Correccional, as minimum, to EIGHT (8) YEARS and ONE (1) DAY of Pris[i]on Mayor, as
maximum; to pay indemnity to the heirs of Joselito Bautista for his death in the
amount of P75,000.00; and actual damages in the amount of P111,324.00 for the nine-
day wake, embalm[ing] and funeral services, and P1,418,040.00 for the loss of
Bautistas earning capacity, the last to be paid by installment at least P3,030.00 a
month until fully paid with the balance earning interest at the rate of six percent
(6%) per annum; and to pay the costs.

SO ORDERED.[24]

The trial court held that the defense failed to establish self-defense as a
justifying circumstance. According to the trial court, unlawful aggression, which
is the most essential element to support the theory of self-defense, was lacking in
this case. The trial court found that, contrary to Manabans claim, Bautista was not
about to draw his gun to shoot Manaban. Evidence show that Bautistas gun was still
tucked in his waist inside a locked holster. Furthermore, the trial court held that
Bautista could not have surprised Manaban with a preemptive attack because Manaban
himself testified that he already had his gun pointed at Bautista when they were
facing each other. The trial court likewise rejectedManabans claim of exemption
from criminal liability because he acted under the impulse of an uncontrollable
fear of an equal or greater injury. The trial court held that the requisites for
the exempting circumstance of uncontrollable fear under paragraph 6, Article 12 of
the Revised Penal Code are not present in this case. However, the trial court
credited Manaban with two mitigating circumstances: voluntary surrender and
obfuscation.

The Court of Appeals Ruling

On appeal, the Court of Appeals affirmed the trial courts decision. The Court of
Appeals later reconsidered and modified its decision with respect only to the award
of loss of earning capacity. Using the formula 2/3 [80 age at the time of death] x
[gross annual income 80% gross annual income], the Court of Appeals recomputed the
award for loss of earning capacity. In its Resolution dated 8 November 2001, the
Court of Appeals reduced the award for the loss of the victims earning capacity
from P1,418,040 to P436,320.

The Issues

In his petition for review, Manaban submits that:

1. The Respondent Court gravely erred in affirming the erroneous factual

appreciation and interpretation by the trial court a quo in practically affirming
the decision of the latter court which are based on a clear misappreciation of
facts and findings grounded entirely on speculations, surmises or conjectures in a
way probably not in accord with law or with the applicable jurisprudence of the
Supreme Court.
2. The Respondent Court gravely erred in ignoring petitioners self-defense on the
sole fact that the entrance of the deceased victims wound was from the back.

3. The Respondent Court gravely erred in concluding that petitioner failed to

establish unlawful aggression just because the holster of the victim was still in a
lock position.

4. Granting arguendo that petitioner made a mistake in his appreciation that there
was an attempt on the part of the deceased victim to draw his gun who executed
bumalikwas, such mistake of fact is deemed justified.

5. Finally, the Respondent Court gravely erred in awarding exorbitant and baseless
award of damages to the heirs of deceased victim.[25]

The Courts Ruling

The petition is partly meritorious.

An appeal in a criminal case opens the entire case for review. The reviewing
tribunal can correct errors though unassigned in the appeal, or reverse the lower
courts decision on grounds other than those the parties raised as errors.[26]
Unlawful Aggression is an Indispensable Requisite of Self-Defense
When the accused invokes self-defense, he in effect admits killing the victim and
the burden is shifted to him to prove that he killed the victim to save his life.
[27] The accused must establish by clear and convincing evidence that all the
requisites of self-defense are present.[28]
Under paragraph 1, Article 11 of the Revised Penal Code, the three requisites to
prove self-defense as a justifying circumstance which may exempt an accused from
criminal liability are: (1) unlawful aggression on the part of the victim; (2)
reasonable necessity of the means employed to prevent or repel the aggression; and
(3) lack of sufficient provocation on the part of the accused or the person
defending himself.[29] Unlawful aggression is an indispensable requisite of self-
defense.[30] Self-defense is founded on the necessity on the part of the person
being attacked to prevent or repel the unlawful aggression.[31] Thus, without prior
unlawful and unprovoked attack by the victim, there can be no complete or
incomplete self-defense.[32]

Unlawful aggression is an actual physical assault or at least a threat to attack or

inflict physical injury upon a person.[33] A mere threatening or intimidating
attitude is not considered unlawful aggression,[34] unless the threat is offensive
and menacing, manifestly showing the wrongful intent to cause injury.[35] There
must be an actual, sudden, unexpected attack or imminent danger thereof, which puts
the defendants life in real peril.[36]

In this case, there was no unlawful aggression on the part of the victim. First,
Bautista was shot at the back as evidenced by the point of entry of the bullet.
Second, when Bautista was shot, his gun was still inside a locked holster and
tucked in his right waist. Third, when Bautista turned his back at Manaban, Manaban
was already pointing his service firearm at Bautista. These circumstances clearly
belie Manabans claim of unlawful aggression on Bautista's part. Manaban testified:

ATTY. ANCANAN

Q: You said the victim showed his gun by raising his shirt?
A: Yes, sir.

Q: The victim never drew his gun?

A: He was about to draw the gun when he turned around.

Q: My question is when the victim was facing you, the victim never drew his gun?
A: Not yet, sir.

Q: And when you told the victim not to come close, he did not come closer anymore?
A: He walked towards me, sir.

Q: For how many steps?

A: I cannot remember how many steps.

Q: And according to you, while he was facing you and walking towards you he
suddenly turned his back to you, is that correct?
A: Bumalikwas po at parang bubunot ng baril.

Q: Let us get the meaning of bumalikwas, tumalikod sa iyo?

A: Bumalikwas po (witness demonstrating).

Q: Will you please demonstrate to us how the victim bumalikwas?

A: When he was facing me and I told him, Sir, you just be there otherwise I am
going to take the gun and at that moment, he, the victim turned his back and
simultaneously drew the gun.

Q: When he was facing you, the victim never drew his gun, is that correct?
A: Not yet, sir.

Q: And according to you, it was at that point when he turned his back on you that
he tried to draw his gun?
A: Yes, sir.

Q: You said that he tried to draw, but the fact is he merely placed his hand on his
waist?
A: No, sir, when I saw him, when he was hit, I saw him, the hand was already on the
gun but still tucked on his waist (witness places his hand on his right waist with
fingers open).

Q: And it was at that precise moment while the victims back was turned on you that
you fired your shot?
A: When he was about to turn his back and it seems about to take his gun, that is
the time I shot him because of my fear that he would be ahead in pulling his gun
and he might kill me.
Q: When you said, when you fired your shot, the victims gun was still tucked in his
right waist, is that correct?
A: Yes, sir, his hand was on his waist.

Q: You just answer the question. Was the victims gun still tucked on his waistline?
A: Yes, sir.

Q: And his hand was merely placed on his hips. The victims right hand was merely
placed on his right hip?

ATTY. CARAANG

I object. The witness testified that he was about to draw his gun.

COURT

He is asking the question so he has to answer.

A: No, sir, the gun was on his waist.

ATTY. ANCANAN

Q: At the precise time that you fired your second shot, you could have aimed your
gun at the extremities of the victim, meaning legs or arms, is that correct?
A: When I saw him that he was about to draw his gun because of my fear that he
would get ahead of me and he would kill me, I did not mind anymore, I just inunahan
ko siya.

ATTY. CARAANG

May I request that the answer of the witness be quoted as is?

A: Noong makita ko siya na pabalikwas siya, na sabay bubunot ng baril, sa takot ko

na baka maunahan niya ako at mapatay, doon ko na rin nakalabit yung gatilyo ng
baril ko.

ATTY. ANCANAN

Q: Mr. Witness, how long have you been a security guard before this incident?
A: Around 7 months, sir.

Q: Now, before you were employed as security guard by the Eagle Star Security
Agency, did you undergo any training as a security guard?
A: Yes, sir.

Q: Where?
A: Camp Crame, sir.

Q: For how long?

A: Three (3) days, sir.
Q: And what did you learn from those 3 days training as security guard?
A: Our duties as security guard were lectured to us, sir.

Q: Now, were you not taught during the training that in any given situation, your
first duty is to disable first an aggressor?

ATTY. CARAANG

Objection, your Honor, I think that is no longer material besides, that is not part
of my direct examination.

COURT

Witness may answer.

A: It was taught to us, sir, but it depends on my situation. If the person kept on
doing what I told him not to do and it would reach a point that it would endanger
my life, of course even if you were in my place, you would do the same thing, so
nakipagsabayan na ako, sir.
Q: But in this particular case when you fired your second shot, the victims back
was towards you, is that not correct?

ATTY. CARAANG

Objection, already answered, your Honor.

COURT

Witness may answer.

A: No, sir, I shot him only once, not twice.

Q: Please answer the question. When you fired your second shot . . .
A: Bumalikwas ho yon eh.

Q: Please answer the question.

A: Yes, sir.

Q: And because his back was towards you, you could have easily disabled him by
firing at his leg or at his arms, is that not correct?

ATTY. CARAANG

I object, your Honor, it was already answered. He said he was not given the
opportunity to have a second thought and at that moment he was able to pull the
trigger of his gun.

ATTY. ANCANAN

The witness already admitted that when he fired his gun, the victims back was
towards the witness, so my last question is just a follow-up.

ATTY. CARAANG

But the witness testified that he was not given the opportunity to have a second
thought, that is why right then and there, he pulled the trigger of his gun.

COURT

Objection noted, witness may answer.

A: What I was thinking at that time, was just to disarm him but when he turned,
bumalikwas, and I saw that he was going to draw a firearm and that was when I
decided tomakipagsabayan.

x x x x x x x x x
RE-DIRECT EXAMINATION
ATTY. CARAANG

Q: Mr. Witness, when you and the victim were facing each other, the gun was already
pointed to him, is it not? Your gun?
A: Yes, sir, I pointed my gun at him.[37]

The allegation of Manaban that Bautista was about to draw his gun when he turned
his back at Manaban is mere speculation. Besides, Manaban was already aiming his
loaded firearm at Bautista when the latter turned his back. In that situation, it
was Bautista whose life was in danger considering that Manaban, who had already
fired a warning shot, was pointing his firearm at Bautista. Bautista, who was a
policeman, would have realized this danger to his life and would not have attempted
to draw his gun which was still inside a locked holster tucked in his waist.
Furthermore, if Manaban really feared that Bautista was about to draw his gun to
shoot him, Manaban could have easily disabled Bautista by shooting his arm or leg
considering that Manabans firearm was already aimed at Bautista.
Aggression presupposes that the person attacked must face a real threat to his life
and the peril sought to be avoided is imminent and actual, not imaginary.[38]
Absent such actual or imminent peril to ones life or limb, there is nothing to
repel and there is no justification for taking the life or inflicting injuries on
another.[39]

Voluntary Surrender and Obfuscation

The trial court credited Manaban with two mitigating circumstances: voluntary
surrender and obfuscation.

It is undisputed that Manaban called the police to report the shooting incident.
When the police arrived, Manaban surrendered his service firearm and voluntarily
went with the police to the police station for investigation. Thus, Manaban is
entitled to the benefit of the mitigating circumstance of voluntary surrender.

On obfuscation, we find that the facts of the case do not entitle Manaban to such
mitigating circumstance. Under paragraph 6, Article 13 of the Revised Penal Code,
the mitigating circumstance of passion and obfuscation is appreciated where the
accused acted upon an impulse so powerful as naturally to have produced passion or
obfuscation. The requisites of the mitigating circumstance of passion or
obfuscation are: (1) that there should be an act both unlawful and sufficient to
produce such condition of mind; and (2) that the 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.[40]

In his testimony, Manaban admitted shooting Bautista because Bautista turned around
and was allegedly about to draw his gun to shoot Manaban. The act of Bautista in
turning around is not unlawful and sufficient cause for Manaban to lose his reason
and shoot Bautista. That Manaban interpreted such act of Bautista as preparatory to
drawing his gun to shoot Manaban does not make Bautistas act unlawful. The threat
was only in the mind of Manaban and is mere speculation which is not sufficient to
produce obfuscation which is mitigating.[41] Besides, the threat or danger was not
grave or serious considering that Manaban had the advantage over Bautista because
Manaban was already pointing his firearm at Bautista when the latter turned his
back. The defense failed to establish by clear and convincing evidence the cause
that allegedly produced obfuscation.
Award of Damages
The records[42] reveal that Bautista was 36 years old at the time of his death and
not 26 years old as stated by the trial court and the Court of Appeals.[43]
Moreover, the annual salary of Bautista at the time of his death was already
P60,864 and not P60,600.[44] We likewise modify the formula applied by the Court of
Appeals in the computation of the award for loss of earning capacity. In accordance
with current jurisprudence,[45] the formula for the indemnification for loss of
earning capacity is:

Net Earning = Life Expectancy x [Gross Annual Living Expenses]

Capacity Income (GAI)
= 2/3(80 age of deceased) x (GAI 50% of GAI)

Using this formula, the indemnification for loss of earning capacity should be:
Net Earning Capacity = 2/3 (80 36) x [P60,864 (50% x P60,864)]
= 29.33 x P30,432
= P892,570.56

With regard to actual damages, the records show that not all the expenses that the
Bautista family allegedly incurred were supported by competent evidence. Editha
failed to present receipts or any other competent proof for food expenses and
rental fee for jeeps for the funeral. Editha merely submitted a typewritten Summary
of Food Expenses & Others.[46] A mere list of expenses, without any official
receipts or any other evidence obtainable, does not to prove actual expenses
incurred.[47] Competent proof of the actual expenses must be presented to justify
an award for actual damages.[48] In this case, only the following expenses were
duly supported by official receipts and other proof :
1. Embalming fee[49] P11,000
2. Bronze Casket[50] 25,000
3. Cadillac Hearse fee[51] 3,500
4. Funeral Services[52] 30,000
Total P69,500

Thus, we reduce the actual damages granted from P111,324 to P69,500.

We likewise reduce the indemnity for death from P75,000 to P50,000 in accordance
with prevailing jurisprudence.[53]

WHEREFORE, we AFFIRM with MODIFICATION the Decision of the Court of Appeals dated
21 May 2001 and its Resolution dated 8 November 2001. We find petitioner Ramonito
Manaban guilty beyond reasonable doubt of the crime of Homicide. Applying the
Indeterminate Sentence Law and taking into account the mitigating circumstance of
voluntary surrender, Ramonito Manaban is hereby sentenced to suffer an
indeterminate penalty ranging from six years and one day of prision mayor as
minimum to 12 years and one day of reclusion temporal as maximum. Ramonito Manaban
is ordered to pay the heirs of Joselito Bautista: P892,570.56 as indemnity for loss
of earning capacity; P69,500 as actual damages; and P50,000 as indemnity for death.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice
SECOND DIVISION
G.R. No. 160341 October 19, 2004
EXEQUIEL SENOJA, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
D E C I S I O N
CALLEJO, SR., J.:
Before us is a petition for review on certiorari of the Decision1 of the Court of
Appeals (CA) in People v. Exequiel Senoja, docketed as CA-G.R. CR No. 26564,
affirming with modification the Decision2 of the Regional Trial Court (RTC) of
Baler, Aurora, Branch 96, in Criminal Case No. 2259, for homicide.
The Case For the People
As culled by the Office of the Solicitor General (OSG) in its comment on the
petition, the case stemmed from the following:
1. On April 16, 1997, petitioner Exequiel Senoja, Fidel Senoja, Jose Calica, and
Miguel Lumasac were drinking gin in the hut of Crisanto Reguyal in Barangay Zarah,
San Luis, Aurora. An angry Leon Lumasac suddenly arrived at the said place, holding
a bolo in his right hand and looking for his brother Miguel. Petitioner and Jose
tried to pacify Leon. But when petitioner approached Leon, the latter tried to hack
him so he embraced Leon and Jose took Leons bolo. Then, Leon and petitioner talked
things out and later reconciled (pp. 2-4, TSN, November 16, 1998; pp. 2-4, TSN,
August 30, 2002; p. 2, TSN, April 21, 1998; p. 5, TSN, March 14, 2001; p. 2, CA
Decision).
2. Subsequently, Leon walked out of Crisantos hut followed by petitioner.
Suddenly, about ten meters from the hut, petitioner stabbed Leon at the back. When
Leon turned around, petitioner continued stabbing him until he fell to the ground.
Then, petitioner ran towards the barangay road and threw away the "kolonial" knife
he used in stabbing Leon. The latter died on the spot (pp. 2-6, TSN, November 22,
2000; p. 5, TSN, August 30, 2002; p. 3, CA Decision).
3. Dr. Pura Deveza Valenzuela-Uy, San Luis Municipal Health Officer, examined the
cadaver of Leon and found multiple lesions on his body and five fatal wounds on his
chest. Dr. Uy issued a medico-legal report and death certificate (Exhibits A and B,
pp. 13-14, Records; pp. 3-5, TSN, November 20, 1997).3
On August 13, 1997, an Information was filed charging petitioner Exequiel Senoja
with homicide, the accusatory portion of which reads:
That on April 16, 1997 at around 11 oclock in the morning in Barangay Zarah, San
Luis, Aurora, Philippines, and within the jurisdiction of this Honorable Court, the
said accused, did then and there, willfully, unlawfully, and feloniously, with
intent to kill, attack, assault, and use personal violence upon the person of one
Leon Lumasac by then and there stabbing him with a bladed weapon locally known as
"kolonyal" at the different parts of his body thereby inflicting upon the latter
mortal stab wounds which were the direct and immediate cause of his death
thereafter.
CONTRARY TO LAW.4
The petitioner admitted killing the victim but invoked the affirmative defense of
self-defense. His version of the fatal incident is set forth in his petition at
bar:
1. On April 16, 1997 at about 11 oclock in the morning, Crisanto Reguyal, Fidel
Senoja, Jose Calica, Miguel Lumasac, and Exequiel Senoja were in the hut of
Crisanto Reguyal in Barangay Zarah, San Luis, Aurora, drinking gin;
2. Leon Lumasac suddenly arrived holding a bolo and hacked the doorpost of
Crisantos hut, angrily demanding for his brother, Miguel Lumasac, whom he
suspected of drying up the ricefield he was plowing;
3. At this time, Miguel Lumasac was no longer inside the hut but fetching water;
4. To prevent Leon Lumasac from entering the hut, Exequiel Senoja (appellant) and
Jose Calica stood by the door while simultaneously trying to pacify Leon Lumasac;
5. Exequiel Senoja with a knife then went outside and tried to pacify Leon Lumasac
but the latter angered by the gestures of the former tried to hack Exequiel Senoja;
6. To avoid any injury, Exequiel Senoja embraced Leon which gave an opportunity to
disarm the duo. Jose Calica got the bolo of Leon and threw it away while Fidel
Senoja took the "colonial" knife of Exequiel;
7. Jose Calica and Fidel Senoja were able to pacify Leon Lumasac so they invited
him to get inside the hut. Inside the hut, Leon Lumasac tried to box Fidel Senoja
for siding with his brother, Miguel, but was prevented by Exequiel Senoja who held
Leons hands;
8. After a while, Leon Lumasac left but returned and angrily demanded for his bolo.
Jose Calica gave his own bolo with a sabbard to replace the bolo of Leon which he
threw away;
9. With Jose Calicas bolo in him, Leon Lumasac left but only after leaving a
threat that something will happen to Exequiel Senoja for siding with his brother;
10. After walking for about 10 meters away from the hut, Leon Lumasac turned around
and saw Exequiel Senoja on his way home following him;
11. Leon Lumasac walked back to meet Exequiel Senoja and upon reaching him, the
former suddenly and treacherously hacked the latter at the left side of his head
and right thigh;
12. Unable to evade the treacherous attack by Leon Lumasac who persisted in his
criminal design, Exequiel Senoja drew his "colonial" knife and stabbed Leon Lumasac
in self-defense, inflicting upon him multiple wounds which caused his death.5
On June 7, 2002, the trial court rendered judgment against the petitioner, finding
him guilty beyond reasonable doubt of the crime charged. The fallo of the decision
reads:
WHEREFORE, premises considered, this Court finds accused Exequiel Senoja GUILTY
beyond reasonable doubt of the crime of Homicide for the death of victim Leon
Lumasac and hereby sentences him, applying Article 64, paragraph 1 of the Revised
Penal Code and Section 1 of the Indeterminate Sentence Law, (a) to suffer the
penalty of twelve (12) years of prision mayor as minimum to seventeen (17) years
and four (4) months of reclusion temporal as maximum; (b) to pay the heirs of the
victim the amount of Fifteen (sic) Thousand Pesos (Php 50,000.00) by way of civil
indemnity; and (c) to pay the costs.
SO ORDERED.6
In due course, the petitioner appealed the decision to the CA which rendered
judgment affirming, with modification, the decision of the RTC. The petitioner now
seeks relief from this Court, contending that:
The Honorable Court of Appeals failed to appreciate vital facts which, if
considered, would probably alter the result of this case on appeal finding
appellants plea of self-defense credible.7
The petitioner faults the CA for its analysis of his testimony, as follows:
The injuries suffered by the petitioner at the left side of his head and right
thigh was confirmed by Dr. Rodolfo Eligio in open court. The relative positions of
the wounds clearly show that the drunken Leon Lumasac brandished and executed
several hacking blows against Exequiel Senoja before he was stabbed, neutralized
and finished by the latter. It would be physically and highly improbable for the
victim if he was treacherously hit at the left buttock and as he turned around to
face the petitioner, the latter stabbed him successively and without let-up hitting
him 9 times resulting in 9 fatal wounds. This did not give a chance to the victim
to retaliate and inflict those wounds upon the aggressor. The victim used Mr. Jose
Calicas bolo which was secured by its scabbard. Unless earlier drawn, it would be
impossible for the victim to use it in defending himself from the surprise attack
and stabbing at a lightning fashion inflicting nine (9) fatal wounds. Time element
was the essence of this encounter which, as narrated by the Honorable Court, after
the assailant poked the victim at the left side of the buttock with the use of the
"colonial" knife he stabbed him successively until he fell down dead. Under these
circumstances, how could Exequiel Senoja suffered (sic) those hacking (sic) wounds
inflicted by the victim using Calicas bolo? In all indications, it was Leon
Lumasac who attacked his adversary first but lost in the duel considering that he
was older than Exequiel Senoja and drunk. Clearly, therefore, it was Leon Lumasac
who was the aggressor both in the first and second phases of the incident and
Exequiel Senoja was compelled to defend himself.
A closer scrutiny of the attending circumstances which resulted in this stabbing
incident shows that Exequiel Senoja has no compelling reasons to kill his
godfather. On that same occasion, Mr. Exequiel Senoja was with the brother of the
victim, Miguel Lumasac, which only shows that there was no pre-existing grudge
between these families. And still, what titillates our imagination is the fact that
Miguel Lumasac, who was then with the group drinking gin at the hut of Crisanto
Reguyal did not clearly impute this crime to petitioner. On the contrary, when he
was presented to the witness stand, he was very evasive in answering the questions
profounded by the prosecutors if he wanted the petitioner to be imprisoned. Miguel
Lumasac could have told the real truth that Senoja murdered his brother.8
The CA declared that, based on the evidence on record:
As seen from appellants testimony, Leon Lumasacs actions can be divided into two
(2) phases: the first phase, when Leon entered Crisanto Reguyals hut, up to the
time he and the appellant reconciled. The second phase was when Leon left to go
home. In phase one where Leon entered Reguyals hut, Leon was the aggressor but his
aggression was mostly directed to his brother Miguel who was not inside the hut
anymore, although it was also partly directed at the appellant and even at Fidel
Soneja (sic). But Leons aggression against the appellant and Fidel Senoja ceased
since, as appellant testified, when Leon tried to box Fidel Senoja and he
(appellant) told Leon "Huwag po, Huwag po," Leon was pacified.
In the second phase, when Leon left the hut to go home, his aggression had already
ceased.
It is uncontroverted that the appellant followed the victim when the latter went
out of the hut to go home. Appellants testimony is that when he was two meters
outside the hut, Leon turned around to face him saying "if youre not only my
godson" in a threatening way, then approached and hacked him (with Calicas bolo)
inflicting wounds on the left side of his head and his right thigh, thus, he
(appellant) attacked the victim with the kolonial knife he was holding. That
appellant suffered such injuries was corroborated by the testimony of Dr. Rodolfo
Eligio.9
The petition is denied.
Paragraph 1, Article 11, of the Revised Penal Code 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;
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.
The affirmative defense of self-defense may be complete or incomplete. It is
complete when all the three essential requisites are present; it is incomplete if
only unlawful aggression on the part of the victim and any of the two essential
requisites were present. In fine, unlawful aggression on the part of the victim is
a condition sine qua non to self-defense, complete or incomplete. Whether or not
the accused acted in self-defense is a question of fact. Like alibi, the
affirmative defense of self-defense is inherently weak because, as experience has
demonstrated, it is easy to fabricate and difficult to disprove.10
The right of self-defense proceeds from necessity and limited by it. The right
begins where necessity does, and ends where it ends.11 There is, however, a
perceptible difference between necessity and self-defense, which is that, self-
defense excuses the repulse of a wrong; necessity justifies the invasion of a
right. Hence, it is essential to self-defense that it should be a defense against a
present unlawful attack.12
Life can be taken under the plea of necessity, when necessary for the preservation
of the life on the party setting up the plea. Self-defense is an act to save life;
hence, it is right and not a crime.13 There is a need for one, indeed, for it is a
natural right for one to defend oneself when confronted by an unlawful aggression
by another. It is a settled rule that to constitute aggression, the person attacked
must be confronted by a real threat on his life and limb; and the peril sought to
be avoided is imminent and actual, not merely imaginary. Absent such an actual or
imminent peril to ones life or limb, there is nothing to repel; there is no
necessity to take the life or inflict injuries on another.14
But then what is the standard to use to determine whether the person defending
himself is confronted by a real and imminent peril to his life or limb? We rule
that the test should be: does the person invoking the defense believe, in due
exercise of his reason, his life or limb is in danger? After all, the rule of law
founded on justice and reason: Actus no facit remin, nisi mens sit rea. Hence, the
guilt of the accused must depend upon the circumstances as they reasonably appear
to him.15
Unlawful aggression presupposes an actual, sudden, unexpected attack or imminent
danger thereof, not merely a threatening or intimidating attitude.16 Hence, when an
inceptual/unlawful aggression ceases to exist, the one making a defense has no
right to kill or injure the former aggressor.17 After the danger has passed, one is
not justified in following up his adversary to take his life. The conflict for
blood should be avoided if possible.18 An assault on his person, he cannot punish
when the danger or peril is over. When the danger is over, the right of self-
defense ceases. His right is defense, not retribution.19
When the accused offers the affirmative defense of self-defense, he thereby admits
killing the victim or inflicting injuries on him. The burden of evidence is shifted
on the accused to prove, with clear and convincing evidence, that he killed the
victim or inflicted injuries on him to defend himself. The accused must rely on the
strength of his own evidence and not on the weakness of that of the prosecution
because if the evidence of the prosecution were weak, the accused can no longer be
acquitted.20
We agree with the CA that, as gleaned, even from the testimony of the petitioner,
there were two separate but interrelated incidents that culminated in the
petitioners stabbing and killing of the victim Leon Lumasac. The first was the
arrival of the victim, who was armed with a bolo, in the hut of Crisanto Reguyal,
looking for his brother Miguel Lumasac, whom he was angry at. The victim hacked the
wall of the house in anger. The petitioner, who was armed with a knife, tried to
pacify the victim. The victim attempted to hack the petitioner; nevertheless, the
latter embraced and managed to pacify the victim. Forthwith, Jose Calica took the
bolo of the victim and threw it away. For his part, Fidel Senoja took the
petitioners knife. As it was, the victim was already pacified. He and the
petitioner were already reconciled.21 Fidel even gave back the knife to the
petitioner.
The second incident took place when the victim demanded that Calica return his bolo
as he wanted to go home already. Because he had thrown away the victims bolo,
Calica was, thus, impelled to give his own. The victim then warned the petitioner
three times, "May mangyayari sa iyo, kung hindi ngayon, bukas," and left the hut.
When the victim had already gone about ten meters from the hut, the petitioner
followed the victim. The victim turned around and told the petitioner, "Kung hindi
lang kita inaanak." The victim then hacked the petitioner, hitting the latter on
the left side of his head and thigh. Believing that the victim would attack him
anew, the petitioner stabbed the victim frontally several times.22 He also stabbed
the victim on the left buttock. The petitioner could not recall how many times he
stabbed the victim and what parts of the latters body had been hit.
The first episode inside the hut had been completed with the protagonist, the
victim, and the petitioner reconciled. The second episode commenced inside the hut
and continued outside, and ended with the petitioner stabbing the victim several
times.
The trial and the appellate courts gave no credence and probative weight to the
testimony of the petitioner. So do we.
First. The findings of fact of the trial court and its conclusions based on the
said findings are accorded by this Court high respect, if not conclusive effect,
especially when affirmed by the CA. This is because of the unique advantage of the
trial court of having been able to observe, at close range, the demeanor and
behavior of the witnesses as they testify. This rule, however, is inapplicable if
the trial court ignored, overlooked, or misinterpreted cogent facts and
circumstances which, if considered, will alter or reverse the outcome of the case.
We have reviewed the records and found no justification for a reversal of the
findings of the trial court and its conclusions based thereon.
Second. The victim sustained six hack wounds and one lacerated wound. This is
gleaned from the Necropsy Report of Dr. Pura Uy, to wit:
FINDINGS: The victim lies in supine position, stocky in built; his clothing
completely soaked with fresh blood.
CHEST:
(+) stab wound 2 inches below the L nipple 4 inches deep running medially to the
anterior median line.
(+) stab wound 2 inches to the L of the anterior median line at the level of the L
nipple 5 inches deep running posteriorly.
(+) stab wound 1 inch above the L nipple 4 inches deep running inferomedially.
(+) stab wound 2 inches to the left of the anterior median line 4 inches deep
running inferoposteriorly.
(+) stab wound 1 inch to the right of the anterior median line at the level of the
second right intercostal space 0.5 inch in depth.
(+) stab wound inch to the right of the anterior median line at the level of the
xyphoid process 3 inches deep running superiorly.
(+) stab wound at the level of the L nipple L anterior axillary line 4 inches in
depth running superiorly to the left armpit.
(+) hack wound at the left armpit 3 inches long injuring the muscles and the blood
vessels.
(+) lacerated wound on the left palm almost cutting off the proximal phalanx of the
left thumb.23
Five of the wounds of the victim on his chest were fatal.24 The victim also
sustained a stab wound on the left buttock. According to the doctor, it was
unlikely for the victim to have survived even with medical attention.25 After the
doctor made her initial autopsy and submitted her report, she noted that the victim
sustained a stab wound of about two inches deep at the left buttock, thus:
Q In this medico-legal report, you indicated that the cause of death of the victim
is "Hypovolemic shock 2 to multiple stab wounds, chest." Will you please explain
this?
A "Ito pong nakalagay o dahilan ng pagkamatay ng biktima sa sobrang natapon na dugo
gawa ng maraming saksak na tinamo ng biktima sa kanyang dibdib ang nagbigay ng daan
sa kanyang kamatayan."
Q Will you please tell us, Dr. Uy, if there is one amont (sic) these lesions that
is located at the back of the victim?
A I forgot to tell you that a day after I submitted the report, the funeral parlor
which attended the victim has called my attention because of the wound at the back
of the victim and I attended immediately to see these lesions at the home of the
victim. I reviewed for (sic) these lesions and I saw one lesion located at the left
buttock of the victim.
Q What is the nature of the injury?
A Stab wound, about two inches deep.
Q By the nature of the lesion, is it not fatal?
A It is not that fatal.
Q In your expert opinion, by the nature of the wound sustained by the victim, what
could have been the relative position of the victim in relation to his assailant?
A Based on my examination, I think the victim and the assailant were facing each
other. "Masyadong malapit."
Q How many fatal wounds have (sic) the victim sustained in his chest?
A Five fatal stab wounds on the chest.26
Considering the number, nature and location of the wounds sustained by the victim,
the petitioners plea of self-defense is incredible.27 It bears stressing that the
petitioner resolutely denied stabbing the victim at the buttock and insisted that
he stabbed the victim frontally:
Q As a matter of fact, he sustained an injury at the back of his buttock (pigi) and
when he faced you, you stabbed him again several times?
A That is not true, Sir.
Q But you are admitting that you stabbed him several times frontally?
A Yes, Sir, because I am (sic) defending myself.
Q You also stabbed him in his left armpit?
A I dont know, Sir.
Q But you knew that you stabbed him in his buttock?
A No, Sir.
Q After stabbing him several times and felt that he was already dead, you already
left the place?
A Yes, Sir.28
The testimony of the petitioner is belied by the physical evidence on record. The
settled rule is that physical evidence is evidence of the highest order; it speaks
more eloquently than a hundred witnesses.29
Third. The petitioner threw away his knife and failed to surrender it to the
policemen; neither did he inform the policemen that he killed the victim in self-
defense. The petitioners claim that the victim was armed with a bolo is hard to
believe because he even failed to surrender the bolo.30
Fourth. The petitioners version of the events that transpired immediately before
he stabbed the victim does not inspire belief. He claims that when he saw the
victim emerged from the hut, the victim walked towards the petitioner saying, "Kung
hindi lang kita inaanak," but hit and hacked the latter on the left buttock.31 As
gleaned from his statement, the victim was not disposed, much less determined to
assault the petitioner. And yet, the petitioner insists that without much ado, the
victim, nevertheless, hit him on the head and on the thigh with his bolo.
Fifth. According to the petitioner, the victim warned him three times before
leaving the hut, "May mangyayari sa iyo, kung hindi ngayon, bukas." The petitioner
testified that shortly before the victim uttered these words, the latter even
touched the blade of the bolo to see if it was sharp.32 The petitioner was, thus,
aware of the peril to his life if he followed the victim. The petitioner,
nevertheless, followed the victim and left the hut after the victim had gone barely
ten meters. He should have waited until after the victim had already gone far from
the hut before going home to avoid any untoward incident.
Sixth. The petitioner presented his brother-in-law Ruben Dulay to corroborate his
testimony that the victim stabbed the petitioner and that this impelled the latter
to stab the former. But the testimony of Dulay contradicted the testimony of the
petitioner:
Q When Exequiel Senoja stabbed Leon Lumasac several times, he immediately fell to
the ground and was fatal[ly] wounded, immediately died because of several stabs and
lay (sic) down?
A I did not see that scene because Exequiel Senoja stabbed Leon Lumasac, I turn
(sic) back upon seeing Leon Lumasac hack Exequiel Senoja, I turn (sic) back because
I was afraid then. When I turn (sic) back I saw them embracing each other, Sir.
Q And that is the time when Exequiel Senoja stabbed Leon Lumasac?
A I did not see the stabbing. What I only saw was that they were embracing each
other, Sir.
Q So you are now changing your answer, you actually saw Exequiel Senoja stabbing
Leon Lumasac several times, after he was hack[ed] by Leon Lumasac?
A I did not see that Exequiel Senoja stab Leon Lumasac, Sir.33
Seventh. The bare fact that the petitioner sustained a five-centimeter wound at the
left temporal region and an eight-centimeter hack wound on the anterior portion of
his right thigh does not preclude the fact that he was the unlawful aggressor; nor
buttress his plea that he acted in self-defense. The petitioner failed to inform
the doctor that he sustained the wounds to defend himself. Moreover, the doctor
testified that the wounds the petitioner sustained were slight:
Pros. Ronquillo:
Q Does (sic) the wound at the right anterior thigh vertical, diagonal or what?
A I did not place it, Sir.
Q So, you dont know?
A It is vertical, Sir, but I did not place it on the record. And the hack wound on
the temporal region is oblique.
Q Were the injuries only slight?
A Yes, Sir.
Q So, it is (sic) possible that these injuries were self-inflicted?
A Probably, Sir, but I cannot comment on that.
Q You said that the patient was under the influence of alcohol? Would you say that
the patient was then so drunk at that time?
A When I saw him at that time, he was moderately drunk.34
The doctor gave the petitioner due medications for 30 minutes and the petitioner
then went home:
Q How did it happen that you were able to kill the victim in this case Mr. Leon
Lumasac?
A Because when I went out, he hacked me, Sir.
Q Were you hit by the hack made by the victim in this case?
A Yes, Sir.
Q Where?
A Here, Sir.
And Witness is pointing to his left head.
Q Where else?
A (His) right thigh.
Q In what place did this incident happen?
A In the hut of Tata Santos, Sir.
Q What is his real name?
A Crisanto Reguyal, Sir.35
If, as claimed by the petitioner, the victim stabbed him frontally, it is
incredible that the victim was able to hack the anterior part of his right thigh.
Eighth. The testimony of the petitioner that the victim stabbed him outside the hut
on the left side of his head and the anterior portion of his right thigh is belied
by his testimony on direct examination that the victim stabbed him while still
inside the hut of Reguyal:
Q How did it happen that you were able to kill the victim in this case Mr. Leon
Lumasac?
A Because when I went out, he hacked me, Sir.
Q Were you hit by the hack made by the victim in this case?
A Yes, Sir.
Q Where?
A Here, Sir.
And Witness is pointing to his left head.
Q Where else?
A (His) right thigh.
Q In what place did this incident happen?
A In the hut of Tata Santos, Sir.
Q What is his real name?
A Crisanto Reguyal, Sir.36
But then, after the said incident, the petitioner and the victim had reconciled. We
agree with the following findings of the appellate court:
The question that must be resolved is whether or not the victim was the unlawful
aggressor as the appellants testimony pictures him to be. The Court rules in the
negative. The victim had already left the hut and was ten (10) meters away from it.
There is no showing that the victim, who was drunk, was aware that appellant was
following him, or that the appellant called out to him so that he (the victim) had
to turn around and notice him. It is clear that at that point in time, the victim
was simply walking toward his home; he had stopped being an aggressor. It was the
appellant who, smarting from the earlier incident in the hut where Leon told him
"hindi ka tatagal, sa loob ng tatlong araw mayroong mangyayari sa iyo, kung hindi
ngayon, bukas" repeated three times, wanted a confrontation. Appellant stabbed or
poked the victim in the left buttock resulting in the non-fatal wound, and when the
latter turned around, successively stabbed and hacked the victim in the armpit and
chest until he fell. In all, the victim suffered nine (9) wounds.
It is the well-considered finding of this Court that while Leon Lumasac had ceased
being the aggressor after he left the hut to go home, accused Exequiel Senoja was
now the unlawful aggressor in this second phase of their confrontation. It bears
mentioning that appellant contradicted himself with respect for (sic) the reason
why he left the hut. First, it was to pacify Leon and the second reason was that he
was going home.
As for appellants injuries, it is clear that they were sustained in the course of
the victims attempt to defend himself as shown by the lacerated wound on the
victims left palm, a defensive wound.37
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed Decision of the
Court of Appeals is AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 107874 August 4, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
GEORGE DECENA y ROCABERTE, accused-appellant.
The Solicitor General for plaintiff-appellee.
Aquilino P. Bolinas for accused-appellant.

REGALADO, J.:
It is said that a fool shows his annoyance at once, but a prudent man overlooks an
insult. 1 Had herein accused-appellant George Decena reflected upon and hearkened
to this biblical precept, he would not have found himself charged with murder for
allegedly stabbing to death one Jaime Ballesteros in San Fabian, Pangasinan on of
all dates December 25, 1990. 2
Appellant thereafter stood trial on a plea of not guilty. On September 20, 1991,
judgment was rendered by the trial court convicting him of murder, imposing on him
the penalty of reclusion perpetua, and ordering him to indemnify the heirs of the
deceased in the amount of P50,000.00, plus the additional amounts of P4,500.00 and
P2,300.00 representing the funeral expenses for the victim, with costs. 3
A motion for reconsideration filed by appellant was denied on August 26, 1992 for
lack of merit, 4 hence this appellate review wherein appellant contends, in his
assigned errors, that the lower court blundered in disregarding his claim of self-
defense, and in not appreciating the mitigating circumstance of voluntary surrender
in his favor, granting arguendo that he is guilty. 5
The case for the prosecution, anchored mainly on the testimony of Luzviminda
Ballesteros, a 14-year old daughter of the victim, is to the effect that on
Christmas Day of 1990, at around 4:00 P.M., said Luzviminda was playing with her
siblings at home. She recalled being asked by her mother, Teresita Ballesteros, to
fetch her father, Jaime Ballesteros, who was then watching a game in the basketball
court. On her way to the hardcourt, Luzviminda met her father walking home in an
intoxicated state. Suddenly, she saw appellant rushing towards her father with a
long bladed weapon, prompting Luzviminda to warn her father to run for safety by
shouting in the vernacular "Batik kila, Tatay!" Instead, Jaime simply raised his
hand, thus allowing appellant to stab him on the right chest just below the nipple.
Appellant then fled from the crime scene, while the victim also managed to run but
stumbled and fell to the ground. 6
Finding that her father was too heavy for her to carry, Luzviminda called for her
mother at their house, which was only fifteen meters away from the scene of the
crime, saying: "Mother, come! My father has been stabbed by George Decena." Her
mother immediately called for a tricycle and rushed Jaime to the Provincial
Hospital where, however, the victim was declared dead on arrival. 7
A different account of the incident was presented by the defense. It was claimed
that at about 4:00 P.M. of that day, appellant was watching a basketball game. The
victim, Jaime Ballesteros, went around the basketball court, walking in a wobbly
manner due to drunkenness. Jaime stopped near the place where appellant was sitting
and, for no apparent reason, held the latter by the neck with one arm and, at the
same time, poking a fork against it with the other arm. Barangay Tanod Romeo Decena
who was also watching the basketball game, intervened. He took the fork from Jaime
and advised appellant to go home. The latter left and was followed later by Jaime.
Fernando Biala, an uncle of appellant, additionally testified that while he was
walking on the barangay road of Longos-Patalan, he chanced upon Jaime attacking
appellant with a balisong. Fortunately, he claims, appellant was able to parry the
stabbing blow and a struggle ensued between them. Appellant overpowered Jaime and
succeeded in twisting the wrist of the victim and thrusting the knife into the
latter's body. 8
In criminal cases, the burden of proof is, of course, on the prosecution which must
rely on the strength of its evidence and not on the weakness of the defense. Herein
appellant, however, invokes self-defense, thereby shifting the burden of evidence
to him and the onus of which he must satisfactorily discharge, otherwise conviction
would follow from his admission that he killed the victim. 9 Furthermore, appellant
must this time rely on the strength of his own evidence and not on the weakness of
that of the prosecution, for even if that was weak, it cannot be disbelieved after
appellant himself admitted the killing. 10
The basic requirement for self-defense, as a justifying circumstance, is that there
was an unlawful aggression against the person defending himself. It must be
positively shown that there was a previous unlawful and unprovoked attack that
placed the life of the accused in danger and forced him to inflict more or less
severe wounds upon his assailant, employing therefor reasonable means to resist
said attack. 11 The primal issue in this case, therefore, is whether or not
appellant acted in complete self-defense in killing Jaime Ballesteros, as claimed,
thus absolving him from criminal liability.
Long has it been accepted that for the right of defense to exist, it is necessary
that one be assaulted or that he be attacked, or at least that he be threatened
with an attack in an immediate manner, as, for example, brandishing a knife with
which to stab him or pointing a gun to be discharged against him. 12 So
indispensable is unlawful aggression in self-defense that, without it, there is no
occasion to speak of the other two requisites for such a defense because both
circumstances presuppose an unlawful aggression.
The theory of the defense is that the unlawful aggression started in the basketball
court, when the victim tried to poke a fork on the neck of appellant, and continued
thereafter. Even on the elementary rule that when the aggressor leaves, the
unlawful aggression ceases, it follows that when appellant and Jaime heeded the
advice of the barangay tanod for them to go home, the unlawful aggression had
ended. Consequently, since unlawful aggression no longer existed, appellant had no
right whatsoever to kill or even wound the former aggressor. The supposed
continuation of the unlawful aggression which could have justified self-defense
would have been the circumstance that Jaime persisted in his design to attack
appellant while the latter was already in front of his house. This fact, however,
the defense ruefully failed to establish.
It is an old but a respected and consistent rule that courts must determine by a
balance of probabilities who of the participants in a fight had, in the natural
order of things, the reason to commence the aggression. 13 When appellant claimed
that Jaime suddenly and without any provocation tried to strangle him and poked a
fork against his neck, in front of so many people in the basketball court, 14 then
he must necessarily have been deeply offended, if not insulted, and this fact
undoubtedly fired him with a desire to get even with the deceased.
The case at bar calls to mind the scenario and logical view that when a person had
inflicted slight physical injuries on another, without any intention to inflict
other injuries, and the latter attacked the former, the one making the attack was
an unlawful aggressor. The attack made was evidently a retaliation. And, we find
this an opportune occasion to emphasize that retaliation is different from an act
of self-defense. In retaliation, the aggression that was begun by the injured party
already ceased to exist when the accused attacked him. In
self-defense, the aggression was still existing when the aggressor was injured or
disabled by the person making a defense. 15 We find these observations apropos to
the situation presented by the instant case.
It will be recalled that, as claimed by appellant, the unlawful aggression
complained of also took place in front of his house, where Jaime allegedly tried to
attack him with a balisong, and not only in the basketball court. To support his
theory of continuing aggression, appellant alleged that whenever the victim was
drunk, he would look for trouble. Again, the defense utterly failed to prove this
hypothesis. On the contrary, the wife of the victim testified that the latter has
no such record in their barangay 16 and, significantly, her said testimony was
never refuted nor objected to by appellant.
Witnesses for and against the appellant testified that throughout the incident
Jaime was inebriated and that he was staggering or wobbling as he walked. 17 If he
had such difficulty even in performing the normal bodily function of locomotion, it
could not be expected that he would muster enough courage to persist in attacking
and attempting to kill appellant, as posited by the defense, considering that the
latter was decidedly stronger than him.
Essentially involved, in view of the conflicting submissions of the parties, is the
matter of the credibility of their respective witnesses. Accordingly, we are
constrained to once again advert to the jurisprudential rule that the evaluation of
the credibility of witnesses is within the province of the trial court which is
better circumstanced because of its direct role in the reception of the testimonial
evidence. 18 After examining and evaluating the conflicting versions of the
prosecution and the defense, we agree with the court a quo that the prosecution's
account is deserving of more credence. On the other hand, we note grave
inconsistencies in the declarations of the defense witnesses.
First. Appellant, in his direct examination, testified that a fork was poked at his
neck but, on cross-examination, he vacillated and testified that it was a knife
instead.19 Surely, appellant must know the difference between a fork and a knife.
Second. Appellant insisted that after the stabbing incident in the late afternoon
of December 25, 1990 and until his surrender early next morning,
he never went out of his house. This is contradicted by the unchallenged Entry No.
173 of the local police blotter, especially its follow-up entry which the court
below quoted in its decision:
Relative entry no. 173, elements of this station proceeded to Barangay Longos this
town to locate the suspect and returned station with the information that said
suspect fled after the incident. One deformed
fork submitted by the father of the suspect Francisco Decena to Sgt. R.B. Diagan
allegedly owned by the victim. Under follow-up. Sgd. Ricardo Abrio, Pfc/PNP. 20
Third. Appellant's smug excuse for not immediately divulging to
Sgt. Romeo Diagan that he was not at fault for the death of Jaime was that he was
terribly afraid to do so. Strangely, however, this was not his demeanor and
attitude when he boldly professed and contended that it was Jaime who first poked a
fork against his neck while he was watching a basketball game. Parenthetically, the
other half of the story was deliberately not narrated. 21 Be that as it may, the
Court has heretofore noted that a righteous individual will not cower but would
readily admit the killing at the earliest opportunity if he were legally and
morally justified in doing so. A belated plea or denial suggests that it is false
and only an afterthought made as a last ditch effort to avoid the consequences of
the crime. 22
Fourth. The supposed eyewitness of the defense who is appellant's uncle, Fernando
Biala, impresses us as either an imaginative or a coached witness. He avowed that
he saw the stabbing incident, but shock and surprise allegedly prevented him from
going near Jaime or appellant, when he saw Jaime about to stab appellant. However,
on cross-examination, he said that he merely chanced on them at the time when Jaime
was already actually stabbing appellant, for the reason that he did not see where
appellant or Jaime came from before the incident. When asked how long the fight
transpired, he vaguely answered that he could not tell because when he went up the
road, the two were already fighting. However, he again vacillated by saying that
when Jaime wasabout to deliver the stabbing blow, appellant caught the hand of
Jaime "squeezed and pushed it forward and Jaime Ballesteros hit himself." 23 This
is a mercurial account since, to repeat, this witness categorically admitted that
even as he was still going up the road, the supposed combatants were already
fighting and that fight actually lasted only a few seconds.
Appellant declared that he is related to the victim's wife, that they are
neighbors, and that there was no grudge between him and the victim, nor with any
member of the family of the latter. 24 This was apparently to bolster his theory
that he had no motive to assault the victim. His assertions, however, work both
ways for it also established the fact that Luzviminda would likewise not just
indiscriminately and improvidently point her finger at anybody but to the culprit
himself, in order to obtain justice for the death of her father.
That the principal witness is the victim's daughter even lends more credence to her
testimony as her natural interest in securing the conviction of the guilty would
deter her from implicating persons other than the culprits, for otherwise the
latter would thereby gain immunity. 25 This observation, however, could not be said
for the defense witnesses who are all relatives of appellant. As such, they may be
expected to cover up for the crime. While relationship between the accused and his
witnesses is not necessarily detrimental to the former's line of defense, this
relationship, taken together with the want of logic (of) in the declarations of
said witnesses, yields the conclusion that their testimonies lack credibility. 26
In contrast, and further reinforcing the case for the People, is the fact that when
Luzviminda shouted, "Mother, come! My father has been stabbed by George Decena,"
that outcry and the identification of the culprit were unrehearsed and
spontaneously made at the spur of the moment. Having been given shortly after a
startling occurrence took place before the eyes of Luzviminda, who had thereby no
opportunity to concoct or contrive a story, that statement has all the earmarks of
the truth of what she said. Under the environmental circumstances hereinbefore
related, it easily passes the tests not only of admissibility in evidence but also
of weight in its veracity.
We, however, reject the trial court's holding that the killing of the victim was
attended by treachery. Any circumstance which would qualify a killing to murder
must be proven as indubitably as the crime itself. 27 Here, the qualifying
circumstance of treachery cannot be appreciated, for none of the prosecution's
arguments can uphold its allegation that, in the language of the law, appellant
committed the crime by employing means, methods or forms in the execution thereof
which tended directly and especially to insure its execution, without risk to
himself arising from the defense which the offended party might make. It is true
that the attack was sudden, but that factper se does not bespeak the circumstance
of alevosia. 28 It is further required that the means, methods or forms were
deliberated upon or consciously adopted by the offender. 29 The crime committed,
therefore, was simple homicide.
The reasons advanced by the lower court for appreciating the aggravating
circumstance of disregard of age are not persuasive. There was no showing that
appellant deliberately intended to insult the age of Jaime. We hold that for this
circumstance to constitute an aggravation of criminal liability, it is necessary to
prove the specific fact or circumstance, other than that the victim is an old man,
showing insult or disregard of age in order that it may be considered as an
aggravating circumstance. 30 In the case at bar, that consideration does not
obtain, aside from the fact that while the victim was forty-three years of age, he
was not necessarily old, nor was there a radical disparity between his age and that
of appellant who was twenty-five years old.
The rule is that the mitigating circumstance of voluntary surrender may properly be
appreciated if the following requisites concur: (a) the offender had not actually
been arrested; (b) the offender surrendered himself to a person in authority or to
an agent of a person in authority; and (c) the surrender was voluntary. We believe
that the mitigating circumstance of voluntary surrender may be awarded to
appellant. The records disclose that appellant was, evidently with his concurrence,
accompanied and surrendered by his father to a person in authority, Sgt. Romeo
Diagan, early in the morning after the incident and before he could actually be
arrested. That mitigating circumstance can, therefore, be properly considered in
his favor to impose the penalty in its minimum period.
WHEREFORE, the appealed judgment of the court a quo is hereby MODIFIED by finding
accused-appellant George Decena y Rocaberte guilty of the crime of homicide, and
imposing upon him an indeterminate sentence of eight (8) years of prision mayor, as
minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as
maximum. In all other respects, the said judgment is hereby AFFIRMED.
SO ORDERED.
Narvasa, C.J., Padilla, Puno and Mendoza, JJ., concur.
EN BANC
C.A. No. 384 February 21, 1946
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.
Jose Ma. Recto for appellant.
Assistant Solicitor General Enriquez and Solicitor Palma for appellee..
DE JOYA, J.:
Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First
Instance of Tayabas, for the crime of murder, of which Nicolas Jaurigue was
acquitted, but defendant Avelina Jaurigue was found guilty of homicide and
sentenced to an indeterminate penalty ranging from seven years, four months and one
day of prision mayorto thirteen years, nine months and eleven days of reclusion
temporal, with the accessory penalties provided by law, to indemnify the heirs of
the deceased, Amando Capina, in the sum of P2,000, and to pay one-half of the
costs. She was also credited with one-half of the period of preventive imprisonment
suffered by her.
From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court
of Appeals for Southern Luzon, and in her brief filed therein on June 10, 1944,
claimed
(1) That the lower court erred in not holding that said appellant had acted in the
legitimate defense of her honor and that she should be completely absolved of all
criminal responsibility;
(2) That the lower court erred in not finding in her favor the additional
mitigating circumstances that (a) she did not have the intention to commit so grave
a wrong as that actually committed, and that (b) she voluntarily surrendered to the
agents of the authorities; and
(3) That the trial court erred in holding that the commission of the alleged
offense was attended by the aggravating circumstance of having been committed in a
sacred place.
The evidence adduced by the parties, at the trial in the court below, has
sufficiently established the following facts:
That both the defendant and appellant Avelina Jaurigue and the deceased Amado
Capina lived in the barrio of Sta. Isabel, City of San Pablo, Province of Laguna;
that for sometime prior to the stabbing of the deceased by defendant and appellant,
in the evening of September 20, 1942, the former had been courting the latter in
vain, and that on one occasion, about one month before that fatal night, Amado
Capina snatched a handkerchief belonging to her, bearing her nickname "Aveling,"
while it was being washed by her cousin, Josefa Tapay.
On September 13, 1942, while Avelina was feeding a dog under her house, Amado
approached her and spoke to her of his love, which she flatly refused, and he
thereupon suddenly embraced and kissed her and touched her breasts, on account of
which Avelina, resolute and quick-tempered girl, slapped Amado, gave him fist blows
and kicked him. She kept the matter to herself, until the following morning when
she informed her mother about it. Since then, she armed herself with a long fan
knife, whenever she went out, evidently for self-protection.
On September 15, 1942, about midnight, Amado climbed up the house of defendant and
appellant, and surreptitiously entered the room where she was sleeping. He felt her
forehead, evidently with the intention of abusing her. She immediately screamed for
help, which awakened her parents and brought them to her side. Amado came out from
where he had hidden under a bed in Avelina's room and kissed the hand of Nicolas
Jaurigue, her father, asking for forgiveness; and when Avelina's mother made an
attempt to beat Amado, her husband prevented her from doing so, stating that Amado
probably did not realize what he was doing. Nicolas Jaurigue sent for the barrio
lieutenant, Casimiro Lozada, and for Amado's parents, the following morning.
Amado's parents came to the house of Nicolas Jaurigue and apologized for the
misconduct of their son; and as Nicolas Jaurigue was then angry, he told them to
end the conversation, as he might not be able to control himself.
In the morning of September 20, 1942, Avelina received information that Amado had
been falsely boasting in the neighborhood of having taken liberties with her person
and that she had even asked him to elope with her and that if he should not marry
her, she would take poison; and that Avelina again received information of Amado's
bragging at about 5 o'clock in the afternoon of that same day.
At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas
Jaurigue went to the chapel of the Seventh Day Adventists of which he was the
treasurer, in their barrio, just across the provincial road from his house, to
attend religious services, and sat on the front bench facing the altar with the
other officials of the organization and the barrio lieutenant, Casimiro Lozada.
Inside the chapel it was quite bright as there were electric lights.
Defendant and appellant Avelina Jaurigue entered the chapel shortly after the
arrival of her father, also for the purpose of attending religious services, and
sat on the bench next to the last one nearest the door. Amado Capina was seated on
the other side of the chapel. Upon observing the presence of Avelina Jaurigue,
Amado Capina went to the bench on which Avelina was sitting and sat by her right
side, and, without saying a word, Amado, with the greatest of impudence, placed his
hand on the upper part of her right thigh. On observing this highly improper and
offensive conduct of Amado Capina, Avelina Jaurigue, conscious of her personal
dignity and honor, pulled out with her right hand the fan knife marked Exhibit B,
which she had in a pocket of her dress, with the intention of punishing Amado's
offending hand. Amado seized Avelina's right hand, but she quickly grabbed the
knife with her left hand and stabbed Amado once at the base of the left side of the
neck, inflicting upon him a wound about 4 1/2 inches deep, which was necessarily
mortal. Nicolas Jaurigue, who was seated on one of the front benches, saw Amado
bleeding and staggering towards the altar, and upon seeing his daughter still
holding the bloody knife, he approached her and asked: "Why did you do that," and
answering him Avelina said: "Father, I could not endure anymore." Amado Capina died
from the wound a few minutes later. Barrio lieutenant Casimiro Lozada, who was also
in the same chapel, approached Avelina and asked her why she did that, and Avelina
surrendered herself, saying: "Kayo na po ang bahala sa aquin," meaning: "I hope you
will take care of me," or more correctly, "I place myself at your disposal."
Fearing that Amado's relatives might retaliate, barrio lieutenant Lozada advised
Nicolas Jaurigue and herein defendant and appellant to go home immediately, to
close their doors and windows and not to admit anybody into the house, unless
accompanied by him. That father and daughter went home and locked themselves up,
following instructions of the barrio lieutenant, and waited for the arrival of the
municipal authorities; and when three policemen arrived in their house, at about 10
o'clock that night, and questioned them about the incident, defendant and appellant
immediately surrendered the knife marked as Exhibit B, and informed said policemen
briefly of what had actually happened in the chapel and of the previous acts and
conduct of the deceased, as already stated above, and went with said policemen to
the police headquarters, where her written statements were taken, and which were
presented as a part of the evidence for the prosecution.
The high conception of womanhood that our people possess, however humble they may
be, is universal. It has been entertained and has existed in all civilized
communities.
A beautiful woman is said to be a jewel; a good woman, a treasure; and that a
virtuous woman represents the only true nobility. And they are the future wives and
mothers of the land. Such are the reasons why, in the defense of their honor, when
brutally attacked, women are permitted to make use of all reasonable means
available within their reach, under the circumstances. Criminologists and courts of
justice have entertained and upheld this view.
On the other hand, it is the duty of every man to protect and show loyalty to
womanhood, as in the days of chivalry. There is a country where women freely go out
unescorted and, like the beautiful roses in their public gardens, they always
receive the protection of all. That country is Switzerland.
In the language of Viada, aside from the right to life on which rests the
legitimate defense of our own person, we have the right to property acquired by us,
and the right to honor which is not the least prized of our patrimony (1 Viada,
Codigo Penal, 5th ed., pp. 172, 173).
The attempt to rape a woman constitutes an unlawful aggression sufficient to put
her in a state of legitimate defense, inasmuch as a woman's honor cannot but be
esteemed as a right as precious, if not more, than her very existence; and it is
evident that a woman who, thus imperiled, wounds, nay kills the offender, should be
afforded exemption from criminal liability, since such killing cannot be considered
a crime from the moment it became the only means left for her to protect her honor
from so great an outrage (1 Viada, Codigo Penal, 5th ed., p. 301; People vs. Luague
and Alcansare, 62 Phil., 504). .
As long as there is actual danger of being raped, a woman is justified in killing
her aggressor, in the defense of her honor. Thus, where the deceased grabbed the
defendant in a dark night at about 9 o'clock, in an isolated barrio trail, holding
her firmly from behind, without warning and without revealing his identity, and, in
the struggle that followed, touched her private parts, and that she was unable to
free herself by means of her strength alone, she was considered justified in making
use of a pocket knife in repelling what she believed to be an attack upon her
honor, and which ended in his death, since she had no other means of defending
herself, and consequently exempt from all criminal liability (People vs. De la
Cruz, 16 Phil., 344).
And a woman, in defense of her honor, was perfectly justified in inflicting wounds
on her assailant with a bolo which she happened to be carrying at the time, even
though her cry for assistance might have been heard by people nearby, when the
deceased tried to assault her in a dark and isolated place, while she was going
from her house to a certain tienda, for the purpose of making purchases (United
States vs. Santa Ana and Ramos, 22 Phil., 249).
In the case, however, in which a sleeping woman was awakened at night by someone
touching her arm, and, believing that some person was attempting to abuse her, she
asked who the intruder was and receiving no reply, attacked and killed the said
person with a pocket knife, it was held that, notwithstanding the woman's belief in
the supposed attempt, it was not sufficient provocation or aggression to justify
her completely in using deadly weapon. Although she actually believed it to be the
beginning of an attempt against her, she was not completely warranted in making
such a deadly assault, as the injured person, who turned out to be her own brother-
in-law returning home with his wife, did not do any other act which could be
considered as an attempt against her honor (United States vs. Apego, 23 Phil.,
391)..
In the instant case, if defendant and appellant had killed Amado Capina, when the
latter climbed up her house late at night on September 15, 1942, and
surreptitiously entered her bedroom, undoubtedly for the purpose of raping her, as
indicated by his previous acts and conduct, instead of merely shouting for help,
she could have been perfectly justified in killing him, as shown by the authorities
cited above..
According to the facts established by the evidence and found by the learned trial
court in this case, when the deceased sat by the side of defendant and appellant on
the same bench, near the door of the barrio chapel and placed his hand on the upper
portion of her right thigh, without her consent, the said chapel was lighted with
electric lights, and there were already several people, about ten of them, inside
the chapel, including her own father and the barrio lieutenant and other
dignitaries of the organization; and under the circumstances, there was and there
could be no possibility of her being raped. And when she gave Amado Capina a thrust
at the base of the left side of his neck, inflicting upon him a mortal wound 4 1/2
inches deep, causing his death a few moments later, the means employed by her in
the defense of her honor was evidently excessive; and under the facts and
circumstances of the case, she cannot be legally declared completely exempt from
criminal liability..
But the fact that defendant and appellant immediately and voluntarily and
unconditionally surrendered to the barrio lieutenant in said chapel, admitting
having stabbed the deceased, immediately after the incident, and agreed to go to
her house shortly thereafter and to remain there subject to the order of the said
barrio lieutenant, an agent of the authorities (United States vs. Fortaleza, 12
Phil., 472); and the further fact that she had acted in the immediate vindication
of a grave offense committed against her a few moments before, and upon such
provocation as to produce passion and obfuscation, or temporary loss of reason and
self-control, should be considered as mitigating circumstances in her favor (People
vs. Parana, 64 Phil., 331; People vs. Sakam, 61 Phil., 27; United States vs.
Arribas, 1 Phil., 86).
Defendant and appellant further claims that she had not intended to kill the
deceased but merely wanted to punish his offending hand with her knife, as shown by
the fact that she inflicted upon him only one single wound. And this is another
mitigating circumstance which should be considered in her favor (United States vs.
Brobst, 14 Phil., 310; United States vs. Diaz, 15 Phil., 123).
The claim of the prosecution, sustained by the learned trial court, that the
offense was committed by the defendant and appellant, with the aggravating
circumstance that the killing was done in a place dedicated to religious worship,
cannot be legally sustained; as there is no evidence to show that the defendant and
appellant had murder in her heart when she entered the chapel that fatal night.
Avelina is not a criminal by nature. She happened to kill under the greatest
provocation. She is a God-fearing young woman, typical of our country girls, who
still possess the consolation of religious hope in a world where so many others
have hopelessly lost the faith of their elders and now drifting away they know not
where.
The questions raised in the second and third assignments of error appear,
therefore, to be well taken; and so is the first assignment of error to a certain
degree.
In the mind of the court, there is not the least doubt that, in stabbing to death
the deceased Amado Capina, in the manner and form and under the circumstances above
indicated, the defendant and appellant committed the crime of homicide, with no
aggravating circumstance whatsoever, but with at least three mitigating
circumstances of a qualified character to be considered in her favor; and, in
accordance with the provisions of article 69 of the Revised Penal Code, she is
entitled to a reduction by one or two degrees in the penalty to be imposed upon
her. And considering the circumstances of the instant case, the defendant and
appellant should be accorded the most liberal consideration possible under the law
(United States vs. Apego, 23 Phil., 391; United States vs. Rivera, 41 Phil., 472;
People vs. Mercado, 43 Phil., 950)..
The law prescribes the penalty of reclusion temporal for the crime of homicide; and
if it should be reduced by two degrees, the penalty to be imposed in the instant
case is that of prision correccional; and pursuant to the provisions of section 1
of Act No. 4103 of the Philippine Legislature, known as the Indeterminate Sentence
Law, herein defendant and appellant should be sentenced to an indeterminate penalty
ranging from arresto mayor in its medium degree, to prision correccional in its
medium degree. Consequently, with the modification of judgment appealed from,
defendant and appellant Avelina Jaurigue is hereby sentenced to an indeterminate
penalty ranging from two months and one day of arresto mayor, as minimum, to two
years, four months, and one day ofprision correccional, as maximum, with the
accessory penalties prescribed by law, to indemnify the heirs of the deceased Amado
Capina, in the sum of P2,000, and to suffer the corresponding subsidiary
imprisonment, not to exceed 1/3 of the principal penalty, in case of insolvency,
and to pay the costs. Defendant and appellant should also be given the benefit of
1/2 of her preventive imprisonment, and the knife marked Exhibit B ordered
confiscated. So ordered..
Ozaeta, Perfecto, and Bengzon, JJ., concur.
EN BANC

G.R. Nos. L-33466-67 April 20, 1983

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MAMERTO NARVAEZ, defendant-appellant.

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 P 12,000.00 as
compensatory damages, P 10,000.00 as moral damages, P 2,000.00 as attorney's 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 attorney's fees,
the offended party having been represent by a private prosecutor, and to pay the
costs (p. 48, rec.).

The facts are summarized in the People's brief, as follows:

At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Verano and
Cesar Ibanez 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 over what is good,' addressing the deceased Rubia, who is appellant's
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, Appellant's 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 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 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 as as 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 appellant's house (p. 231, t.s.n., supra). The fence, when finished,
would have the effect of shutting off the accessibility to appellant's 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 People's Brief
as above-quoted. Appellant surrendered to the police thereafter, bringing with him
shotgun No. 1119576 and claiming he shot two persons (Exh. Pp. 31, Defense
Exhibits).

Appellant now questions the propriety of his conviction, assigning the following
errors:

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
Appellant's 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 one's 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, Fleischer's 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:

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,
Emphasis 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
appellant's 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 appellant's 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 appellant's
house as well as the closure of the access to and from his house and rice mill-
which 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.

The question is, was the aggression unlawful or lawful? Did the victims have a
right to fence off the contested property, to destroy appellant's 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 government's
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:

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 appellant's 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 appellant's 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 appellant's 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 appellant's property
which he had the right to resist, pursuant 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 (Emphasis supplied).

The reasonableness of the resistance is also a requirement of the justifying

circumstance of self-defense or defense of one's 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, appellant's 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 of a situation where the
slayer acted instantaneously ..." (People vs. Caete, 44 Phil. 481).

WE likewise find the aggravating (qualifying) circumstance of evident premeditation

not sufficiently 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, .... 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 Ibaez, 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 premeditated act, the trial court's 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 unheeded-all these could be too much
for any man-he 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 defense-in view of the
presence of unlawful aggression on the part of the victims and lack of sufficient
provocation on the part of the appellant-and 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 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.

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 defendant's reaction. In the
case at bar, the victims not only contributed but they actually provoked the attack
by damaging appellant's properties and business. Considering appellant's 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 capability-financial and otherwise-to carry out its land
accumulation scheme, the lowly settlers, who uprooted their families from their
native soil in Luzon to take advantage of the government's 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 arrests 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 P 2.50. 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 (P 4,000.00) PESOS, WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT
ANY AWARD FOR MORAL DAMAGES AND ATTORNEY'S 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.

Separate Opinions

ABAD SANTOS, J., dissenting:

I dissent. The self-defense of the Revised Penal Code refers to unlawful aggression
on persons, not property Plana, J., in the result.

GUTIERREZ, JR., J., dissenting:

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 threatened 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, maximum the
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 attorney's fees.

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.

SECOND DIVISION
NILO SABANG, G.R. No. 168818
Petitioner,
Present:

QUISUMBING, J.,
- versus - Chairperson,
CARPIO,
CARPIO MORALES,
TINGA, and
THE PEOPLE OF THE VELASCO, JR., JJ.
PHILIPPINES,
Respondent.
Promulgated:
March 9, 2007

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

D E C I S I O N

TINGA, J.:

On January 17, 1997, in the midst of a drinking spree on the eve of the fiesta in
Liloan, Ormoc City, an intoxicated Nicanor Butad uttered the ominous words I will
shoot you to Randy Sabang, to the horror of young Sabang's father, Nilo, and the
other onlookers. Within moments, Butad himself lay dead from four gunshot wounds on
his body. Nilo Sabang, petitioner herein, who was charged with and later convicted
for the homicide, admits to the killing of Butad, but claims
that the shooting was accidental and done as a means of defending his son. An array
of witnesses for the prosecution and the defense provides a competing set of
particulars as to the shooting. Ultimately, the prosecutions version, supported by
the physical evidence, stands out as the truth.

This much is admitted. At around 6:30 p.m. on that fateful night, petitioner and
Butad were having drinks together with spouses Cruz and Andresa Villamor outside
the store of Melania Sombilon in Sitio Landing, Barangay Liloan, Ormoc City.[1]
Butad, a civilian agent with the Philippine National Police, was then armed with
a .38-caliber revolver which was tucked in his holster. In the midst of the
drinking spree, Randy Sabang suddenly and unexpectedly appeared before the group.
His appearance triggered a negative reaction from Butad, who then uttered the words
I will shoot you to Randy Sabang.[2]

Certain circumstances attaching to this evident threat are disputed, as are the
events that consequently followed. What is certain is that shortly afterwards,
Butad lay dead, having sustained four (4) gunshot wounds from his own revolver.
Petitioner appears to have fled but voluntarily surrendered thereafter, turning
over the revolver as he surrendered.[3]

Photographs of Butad as he lay dead on the scene were presented in evidence,[4] as

was the official report on his autopsy, prepared by the City Health Office of Ormoc
City. The autopsy report[5] indicated the following findings:

GENERAL SURVEY:

Examined a fairly nourished/fairly developed male cadaver with approximate height

of 165 cm & weight of 65 kg in state of rigor mortis.

FINDINGS:

1. Bullet wound 1.0 x 0.5 cm at anterior chest wall, 14 cm from midline, right,
along 3rd intercostal space anterior axillary line penetrating thoracic cavity
lacerating upper lobe of right lung.
2. Bullet wound 0.7 x 0.5 cm at 4th intercostal space mid-axillary line, right,
penetrating thoracic cavity lacerating upper lobe of right lung.
3. Bullet wound 1.5 x 0.7 cm at distal 3rd lateral aspect of right arm injuring
skin & muscles.
4. Bullet wound 0.7 cm x 0.7 cm at mid vertebral column fracturing spine of 8th
thoracic vertebra.

CAUSE OF DEATH:

Hypovolemia 2 to multiple bullet wound.

During arraignment, petitioner pleaded innocence, but during the presentation of

the evidence for the defense, he claimed to have acted in defense of a relative.
Petitioner and four (4) other witnesses testified for the defense. The following
facts were sought to be established by petitioner:

By the time Butad had joined what was to be his last drinking spree, he was already
in a belligerent mood. Earlier that afternoon, he

had been chasing after Ramil Perez when the latter demanded payment for a bet Butad
had lost over a cockfight.[6]
The chase was witnessed by Celso Pepito, who would testify for the defense.[7] As
to the shooting itself, testifying for the defense were petitioner himself, the
storekeeper Sombilon, and an eyewitness, Laurito Caparoso, who was situated right
across the road when the shooting occurred.

Sombilon testified that when Butad told Randy Sabang, I will shoot you, the
deceased already had his revolver aimed at Randy.[8] At this point, Andresa
Villamor, a niece of the deceased, told Butad, Please don't[,] tiyo, he's the son
of Nilo.[9] Petitioner and Caparoso also testified that at that time, Butad had his
revolver pointed at Randy.[10] Petitioner claimed that he then grabbed the arm of
Butad, attempting to twist it toward his body and away from his son. As they were
grappling and the revolver was pointed towards the body of

Butad, petitioner claimed he heard gunshots, and only after the shots were fired
was he able to take the gun from Butad.[11] Petitioners account is substantially
corroborated by Caparoso.[12]

This version of the shooting, however, stands in sharp contrast to that presented
by the prosecution.

Natividad Payud, an eyewitness to the incident, testified that while the group of
the deceased Butad, petitioner, and the spouses Cruz and Andresa Villamor was
having a drinking spree, Randy suddenly entered the scene. Butad, appearing
surprised, thrust a glass of Tanduay near Randys mouth and uttered the words, I
will shoot you. Payud is certain that at this point, Butad was not holding any gun.
[13] Andresa Villamor, another eyewitness to the incident, confirmed Payuds
testimony that Butad was holding a glass and not a gun when he uttered those words.
[14]

Petitioner reacted to Butads statement saying, Just try to shoot my child because
Ill never fight for him because he is a spoiled brat.[15] Andresa Villamor then
chided Butad and said, Do not say that tiyo[,] because its [sic] the son of Nilo
Sabang.[16]

Unexpectedly, a person appeared on the scene and punched Butad causing the latter
to fall down lying partially on his back. Petitioner, who was then sitting across
Butad, stood up and pulled the gun tucked in Butads waist. He pointed the gun at
Butad and fired a shot at the latters chest.[17] Payud and Andresa Villamor both
saw petitioner fire two (2) more shots near Butads chest.[18]

In a Judgment[19] dated November 22, 1999, the trial court convicted petitioner
principally on the strength of the testimony of Dr. Edilberto P. Calipayan, the
physician who conducted the post mortem examination of Butads body, to the effect
that the absence of powder burns indicates that the gunshots were fired at a
distance of more than 10 inches from the victims body and not close range as
claimed by petitioner.[20]

The Court of Appeals affirmed petitioners conviction in a Decision[21] dated August

16, 2004 and denied reconsideration in a Resolution[22] dated July 6, 2005.

In this Petition,[23] petitioner prays for his acquittal contending that he acted
in defense of his son, a justifying circumstance under Art. 11[24] of the Revised
Penal Code. He claims that Butads act of aiming a gun at his son while uttering the
words I will shoot you was an aggression of the most imminent kind which prompted
him to try to wrestle the gun from Butad leading to the accidental firing of the
fatal shots.

Petitioner theorizes that the fact that Butad was then fully clothed could have
accounted for the absence of powder burns on Butads body. He disputes the trial
courts finding that the wounds would have looked oblique had the shots been fired
during a struggle, claiming that round entrance wounds could likewise be produced
in near contact fire.

He further avers that Payud was not really an eyewitness to the event, pointing to
the testimony of Benjamin Mahusay that he and Payud were already out of Sitio
Landing and were heading home when they heard the gunshots. Likewise, Andresa
Villamors testimony is allegedly confined to seeing Butad sprawled on the ground.

The Office of the Solicitor General insists on petitioners conviction but asks that
the award of moral damages be reduced from P100,000.00 to P50,000.00.[25]

We shall first resolve the question of whether petitioners insistence on the

justifying circumstance of defense of relative deserves merit.

In order to successfully claim that he acted in defense of a relative, the accused

must prove the concurrence of the following requisites: (1) unlawful aggression on
the part of the person killed or injured; (2) reasonable necessity of the means
employed to prevent or repel the unlawful aggression; and (3) the person defending
the relative had no part in provoking the assailant, should any provocation been
given by the relative attacked.[26] Unlawful aggression is a

primary and indispensable requisite without which defense of relative, whether

complete or otherwise, cannot be validly invoked.[27]

It is well-settled in this jurisdiction that once an accused has admitted that he

inflicted the fatal injuries on the deceased, it is incumbent upon him in order to
avoid criminal liability, to prove the justifying circumstance claimed by him with
clear, satisfactory and convincing evidence. He cannot rely on the weakness of the
prosecution but on the strength of his own evidence, for even if the evidence of
the prosecution were weak it could not be disbelieved after the accused himself had
admitted the killing. Thus, petitioner must establish with clear and convincing
evidence that the killing was justified, and that he incurred no criminal liability
therefor.[28]

Unlawful aggression must be clearly established by the evidence. In this case,

there is a divergence in the testimonies of the prosecution and defense witnesses
as to whether Butad aimed a gun at petitioners son as he uttered the words I will
shoot you. With this conflict emerges the question of whether petitioner sensed an
imminent threat to his sons life. Payud unequivocally testified that petitioner
even dismissed Butads utterance saying, Just try to shoot my child because Ill
never fight for him because he is a spoiled brat.

This indicates to us that petitioner did not consider Butads words a threat at all.

These circumstances led the trial court to conclude that there was no unlawful
aggression on the part of Butad which could have precipitated petitioners actions.
This finding, affirmed by the Court of Appeals, is conclusive on the Court barring
any showing of any arbitrariness or oversight of material facts that could change
the result.[29]

Furthermore, the presence of four (4) gunshot wounds on Butads body negates the
claim that the killing was justified but instead indicates a determined effort to
kill him. Even assuming that it was Butad who initiated the attack, the fact that
petitioner was able to wrest the gun from him signifies that the aggression which
Butad had started already ceased. Petitioner became the unlawful aggressor when he
continued to shoot Butad even as he already lay defenseless on the ground.[30]

On this point, the defenses own witness, Caparoso, said in his Counter
Affidavit[31] and during direct examination that after the first shot was fired, he
saw petitioner take possession of the gun as Butad released his hold of it. It was
after petitioner already had the gun that Caparoso heard more gunshots.[32] Even
petitioner admitted that he had an easy time twisting the hand with which Butad was
supposedly holding his revolver because the latter was already very drunk having
started drinking before noon that day.[33]

Another crucial point to consider is that the prosecutions theory is consistent

with the physical evidence.

The distance from which a shot is fired affects the nature and extent of the injury
caused on the victim. In close range fire, the injury is not only due to the
missile but also due to the pressure of the expanded gases, flame and other solid
products of combustion. In
contrast, distant fire usually produces the characteristic effect of the bullet
alone.[34] A shot fired from a distance of more than 60 cm or about two (2) feet
does not produce the burning, smudging or tattooing typically present in loose
contact or near fire, short range fire and medium range fire.[35]

Powder burns is a term commonly used by physicians whenever there is blackening of

the margin at the entrance of the gunshot wound. The blackening is due to smoke
smudging, gunpowder tattooing and, to a certain extent, burning of the wound
margin.[36] As found by the medico-legal officer in this case, Butads body did not
have any powder burns. In response to the courts queries, Dr. Calipayan testified:

COURTS QUESTIONS

Q Being an expert, is it a scientific fact that every gun burst within ten (10)
inches distance as you said, is it always a fact that there is presence of powder
burns?

A It is always a fact, if the caliber of the firearm is higher or I can say, may be
.22 caliber as well as there is a gun powder that burst. If it is fired about less
than ten (10) inches from the surface of the skin, it will always cause powder
burns.

Q And in this case, you cannot indicate the presence of powder burns?
A Because I did not find any.[37]

The fact that there were no powder burns on Butads body indicates that the shots
were fired at a distance of more than two (2) feet and not at close range as the
defense suggests. Moreover, Butad sustained four (4) gunshot wounds, three (3) of
which were in the chest area, circumstances which are inconsistent with the
defenses theory of accidental firing.[38]

On the credibility of the prosecutions witnesses, the defense questions Payuds

testimony averring that its witness, Benjamin Mahusay, testified that he and Payud
were already on their way home
when they heard the gunshots. According to Mahusay, he attended a cockfight which
ended at 5 oclock in the afternoon of January 17, 1997. He went home afterwards and
claimed to have met Payud on the way home at around 5 in the afternoon.[39] It was
at this time that he and Payud supposedly heard gunshots.

Mahusays account, however, conflicts with the established fact that Butad was shot
to death at around 6:30 that night. His testimony all the more loses significance
in the face of Payuds compelling testimony that she went back to Sitio Landing to
fetch her children and witnessed the killing.[40]

Moreover, it is not true, as the defense insists, that Andresa Villamor did not
witness the actual shooting. She unequivocally testified that she turned back and
saw Sabang take the pistol from Butad and point the gun at the latter. She
instinctively covered her eyes shouting, Do not shoot my uncle! She uncovered her
eyes after hearing the first gunshot, saw petitioner still pointing the gun at
Butad, and watched as petitioner shot Butad two (2) more times.[41]

In the final analysis, petitioner failed to demonstrate any reason to disturb the
findings and conclusions of the trial court and the Court of Appeals. His
conviction of the crime of homicide is certain. Under Art. 249 of the Revised Penal
Code, homicide is punished by reclusion temporal. There being one (1) mitigating
circumstance of voluntary surrender, the penalty shall be imposed in its minimum
period.[42] Applying the benefits of the Indeterminate Sentence Law, the trial
court correctly imposed an indeterminate penalty ranging from eight (8) years and
one (1) day of prision mayor as minimum to twelve (12) years and one (1) day of
reclusion temporal as maximum.

As regards the matter of damages, we affirm the award of civil indemnity in the
amount of P50,000.00 for the heirs of Butad in line with recent jurisprudence.
Civil indemnity is mandatory and is granted to the heirs of the victim without need
of proof other than the commission of the crime.[43] We also affirm the award of
P180,000.00 representing loss of earning capacity at a reasonable life expectancy
of three (3) years considering that Butad was already 67 years old at the time of
the incident.[44] Likewise affirmed are the award of P50,000.00 as burial expenses
duly proven, attorneys fees of P40,000.00, and appearance fee of P1,000.00 per
hearing.

We, however, agree with the Office of the Solicitor General that consistent with
pertinent jurisprudence, the award of moral damages should be reduced from
P100,000.00 to P50,000.00.[45] Finally, in the absence of any aggravating
circumstance, the trial court correctly withheld the award of exemplary damages.
[46]

WHEREFORE, the instant petition is DENIED for lack of merit. The assailed Decision
of the Court of Appeals dated August 16, 2004 and its Resolution dated July 6,
2005, affirming the Judgment rendered by the Regional Trial Court dated November
26,
1999, are AFFIRMED with the MODIFICATION that the award of moral damages is reduced
to P50,000.00. Costs against petitioner.

SO ORDERED.
FIRST DIVISION

RUJJERIC Z. PALAGANAS,[1]
Petitioner,

- versus -

PEOPLE OF THE PHILIPPINES,

Respondent.

G.R. No. 165483

Present:

PANGANIBAN, C.J.
Chairperson,
YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.

Promulgated:

September 12, 2006

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

D E C I S I O N

CHICO-NAZARIO, J.:

For what is a man, what has he got?

If not himself, then he has naught.
To say the things he truly feels;
And not the words of one who kneels.
The record shows I took the blows -
And did it my way!

The song evokes the bitterest passions. This is not the first time the song My
Way[2] has triggered violent behavior resulting in people coming to blows. In the
case at bar, the few lines of the song depicted what came to pass when the victims
and the aggressors tried to outdo each other in their rendition of the song.

In this Petition for Review on Certiorari[3] under Rule 45 of the Revised Rules of
Court, petitioner Rujjeric Z. Palaganas prays for the reversal of the Decision of
the Court of Appeals in CA-G.R. CR No. 22689 dated 30 September 2004,[4] affirming
with modification the Decision of the Regional Trial Court (RTC), Branch 46, of
Urdaneta, Pangasinan, in Criminal Cases No. U-9608, U-9609, and U-9610 and U-9634,
dated 28 October 1998,[5] finding petitioner guilty beyond reasonable doubt of the
crime of Homicide under Article 249 of the Revised Penal Code, and two (2) counts
of Frustrated Homicide under Article 249 in relation to Articles 6 and 50 of the
same Code.

On 21 April 1998, petitioner and his older brother, Ferdinand Z. Palaganas

(Ferdinand), were charged under four (4) separate Informations[6] for two (2)
counts of Frustrated Murder, one (1) count of Murder, and one (1) count for
Violation of COMELEC Resolution No. 2958[7] relative to Article 22, Section 261, of
the Omnibus Election Code,[8] allegedly committed as follows:

CRIMINAL CASE NO. U-9608

That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan
and within the jurisdiction of this Honorable Court, the above-named accused armed
with an unlicensed firearm, with intent to kill, treachery and evident
premeditation, conspiring together, did then and there willfully, unlawfully and
feloniously shoot SERVILLANO FERRER, JR. y Juanatas, inflicting upon him gunshot
wound penetrating perforating abdomen, urinary bladder, rectum bullet sacral
region, the accused having thus performed all the acts of execution which would
have produced the crime of Murder as a consequence, but which nevertheless, did not
produce it by reason of the causes independent of the will of the accused and that
is due to the timely medical assistance rendered to said Servillano J. Ferrer, Jr.
which prevented his death, to his damage and prejudice.

CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal
Code, as amended.

CRIMINAL CASE NO. U-9609

That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan
and within the jurisdiction of this Honorable Court, the above-named accused armed
with an unlicensed firearm, with intent to kill, treachery and evident
premeditation, conspiring together, did then and there willfully, unlawfully and
feloniously shoot MICHAEL FERRER alias Boying Ferrer, inflicting upon him gunshot
wound on the right shoulder, the accused having thus performed all the acts of
execution which would have produced the crime of murder as a consequence, but which
nevertheless, did not produce it by reason of the causes independent of the will of
the accused and that is due to the medical assistance rendered to said Michael
Boying Ferrer which prevented his death, to his damage and prejudice.

CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal
Code, as amended.
CRIMINAL CASE NO. U-9610

That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan
and within the jurisdiction of this Honorable Court, the above-named accused armed
with an unlicensed firearm, with intent to kill, treachery and evident
premeditation, conspiring together, did then and there willfully, unlawfully and
feloniously shoot MELTON FERRER alias TONY FERRER, inflicting upon him mortal
gunshot wounds in the head and right thigh which caused the instantaneous death of
said Melton Tony Ferrer, to the damage and prejudice of his heirs.

CONTRARY to Art. 248 of the Revised Penal Code, as amended by R.A. 7659.

CRIMINAL CASE NO. U-9634

That on or about January 16, 1998 which is within the election period at Poblacion,
Manaoag, Pangasinan, and within the jurisdiction of this Honorable Court, the
above-named accused did then and there willfully, unlawfully and feloniously bear
and carry one (1) caliber .38 without first securing the necessary permit/license
to do the same.

CONTRARY to COMELEC RES. 2958 in relation with SEC. 261 of the OMNIBUS ELECTION
CODE, as amended.[9] (Underscoring supplied.)

When arraigned on separate dates,[10] petitioner and Ferdinand entered separate

pleas of Not Guilty. Upon motion of Ferdinand,[11] the four cases were consolidated
and were assigned to Branch 46 of the RTC in Urdaneta, Pangasinan.[12]

The factual antecedents as viewed by the prosecution, are summarized in the Comment
dated 18 April 2005 of the Office of the Solicitor General,[13] to wit:

On January 16, 1998, around 8:00 in the evening, brothers Servillano, [Melton] and
Michael, all surnamed Ferrer were having a drinking spree in their house because
[Melton], who was already living in San Fernando, La Union, visited his three
brothers and mother at their house in Sitio Baloking, Poblacion, Manaoag,
Pangasinan. At 9:45 in the evening, the three brothers decided to proceed to
Tidbits Videoke bar located at the corner of Malvar and Rizal Streets, Poblacion,
Manaoag to continue their drinking spree and to sing. Inside the karaoke bar, they
were having a good time, singing and drinking beer.

Thereafter, at 10:30 in the evening, Jaime Palaganas arrived together with

Ferdinand Palaganas and Virgilio Bautista. At that time, only the Ferrer brothers
were the customers in the bar. The two groups occupied separate tables. Later, when
Jaime Palaganas was singing, [Melton] Ferrer sang along with him as he was familiar
with the song [My Way]. Jaime however, resented this and went near the table of the
Ferrer brothers and said in Pangasinan dialect As if you are tough guys. Jaime
further said You are already insulting me in that way. Then, Jaime struck
Servillano Ferrer with the microphone, hitting the back of his head. A rumble
ensued between the Ferrer brothers on the one hand, and the Palaganases, on the
other hand. Virgilio Bautista did not join the fray as he left the place. During
the rumble, Ferdinand went out of the bar. He was however pursued by Michael. When
Servillano saw Michael, he also went out and told the latter not to follow
Ferdinand. Servillano and Michael then went back inside the bar and continued their
fight with Jaime.

Meantime, Edith Palaganas, sister of Jaime and the owner of the bar, arrived and
pacified them. Servillano noticed that his wristwatch was missing. Unable to locate
the watch inside the bar, the Ferrer brothers went outside. They saw Ferdinand
about eight (8) meters away standing at Rizal Street. Ferdinand was pointing at
them and said to his companion, later identified as petitioner [Rujjeric]
Palaganas, Oraratan paltog mo lara, meaning They are the ones, shoot them.
Petitioner then shot them hitting Servillano first at the left side of the abdomen,
causing him to fall on the ground, and followed by [Melton] who also fell to the
ground. When Servillano noticed that [Melton] was no longer moving, he told Michael
Bato, bato. Michael picked up some stones and threw them at petitioner and
Ferdinand. The latter then left the place. Afterwards, the police officers came and
the Ferrer brothers were brought to the Manaoag Hospital and later to Villaflor
Hospital in Dagupan. Servillano later discovered that [Melton] was fatally hit in
the head while Michael was hit in the right shoulder.

On the other hand, the defense, in its Appellants Brief dated 3 December 1999,[14]
asserted the following set of facts:

On January 16, 1998, at around 11:00 in the evening, after a drinking session at
their house, the brothers Melton (Tony), Servillano (Junior) and Michael (Boying),
all surnamed Ferrer, occupied a table inside the Tidbits Caf and Videoke Bar and
started drinking and singing. About thirty minutes later, Jaime Palaganas along
with his nephew Ferdinand (Apo) and friend Virgilio Bautista arrived at the bar and
occupied a table near that of the Ferrers.

After the Ferrers turn in singing, the microphone was handed over to Jaime
Palaganas, who then started to sing. On his third song [My Way], Jaime was joined
in his singing by Tony Ferrer, who sang loudly and in an obviously mocking manner.
This infuriated Jaime, who then accosted Tony, saying, You are already insulting
us. The statement resulted in a free for all fight between the Ferrers, on one
hand, and the Palaganases on the other. Jaime was mauled and Ferdinand, was hit on
the face and was chased outside of the bar by Junior and Boying Ferrer.

Ferdinand then ran towards the house of the appellant Rujjeric Palaganas, his
brother, and sought the help of the latter. Rujjeric, stirred from his sleep by his
brothers shouts, went out of his house and, noticing that the van of his uncle was
in front of the Tidbits Videoke Bar, proceeded to that place. Before reaching the
bar, however, he was suddenly stoned by the Ferrer brothers and was hit on
different parts of his body, so he turned around and struggled to run towards his
house. He then met his brother, Ferdinand, going towards the bar, so he tugged him
and urged him to run towards the opposite direction as the Ferrer brothers
continued pelting them with large stones. Rujjeric then noticed that Ferdinand was
carrying a gun, and, on instinct, grabbed the gun from the latter, faced the Ferrer
brothers and fired one shot in the air to force the brothers to retreat. Much to
his surprise, however, the Ferrer brothers continued throwing stones and when (sic)
the appellant was again hit several times. Unable to bear the pain, he closed his
eyes and pulled the trigger.

On 28 October 1998, the trial court rendered its Decision finding petitioner guilty
only of the crime of Homicide and two (2) counts of Frustrated Homicide.[15] He
was, however, acquitted of the charge of Violation of COMELEC Resolution No. 2958
in relation to Section 261 of the Omnibus Election Code.[16] On the other hand,
Ferdinand was acquitted of all the charges against him.[17]

In holding that petitioner is liable for the crimes of Homicide and Frustrated
Homicide but not for Murder and Frustrated Murder, the trial court explained that
there was no conspiracy between petitioner and Ferdinand in killing Melton and
wounding Servillano and Michael.[18] According to the trial court, the mere fact
that Ferdinand pointed to where the Ferrer brothers were and uttered to petitioner
Araratan, paltog mo lara! (They are the ones, shoot them!), does not in itself
connote common design or unity of purpose to kill. It also took note of the fact
that petitioner was never a participant in the rumble inside the Tidbits Cafe
Videoke Bar (videoke bar) on the night of 16 January 1998. He was merely called by
Ferdinand to rescue their uncle, Jaime, who was being assaulted by the Ferrer
brothers. It further stated that the shooting was instantaneous and without any
prior plan or agreement with Ferdinand to execute the same. It found that
petitioner is solely liable for killing Melton and for wounding Servillano and
Michael, and that Ferdinand is not criminally responsible for the act of
petitioner.

Further, it declared that there was no treachery that will qualify the crimes as
murder and frustrated murder since the Ferrer brothers were given the chance to
defend themselves during the shooting incident by stoning the petitioner and
Ferdinand.[19] It reasoned that the sudden and unexpected attack, without the
slightest provocation on the part of the victims, was absent. In addition, it
ratiocinated that there was no evident premeditation as there was no sufficient
period of time that lapsed from the point where Ferdinand called the petitioner for
help up to the point of the shooting of the Ferrer brothers.[20] Petitioner was
sleeping at his house at the time he heard Ferdinand calling him for help.
Immediately, petitioner, still clad in pajama and sleeveless shirt, went out of his
room to meet Ferdinand. Thereafter, both petitioner and Ferdinand went to the
videoke bar where they met the Ferrer brothers and, shortly afterwards, the
shooting ensued. In other words, according to the trial court, the sequence of the
events are so fast that it is improbable for the petitioner to have ample time and
opportunity to then plan and organize the shooting.

Corollarily, it also stated that petitioner cannot successfully invoke self-defense

since there was no actual or imminent danger to his life at the time he and
Ferdinand saw the Ferrer brothers outside the videoke bar.[21] It noted that when
petitioner and Ferdinand saw the Ferrer brothers outside the videoke bar, the
latter were not carrying any weapon. Petitioner then was free to run or take cover
when the Ferrer brothers started pelting them with stones. Petitioner, however,
opted to shoot the Ferrer brothers. It also stated that the use by petitioner of a
gun was not a reasonable means to prevent the attack of the Ferrer brothers since
the latter were only equipped with stones, and that the gun was deadlier compared
to stones. Moreover, it also found that petitioner used an unlicensed firearm in
shooting the Ferrer brothers.[22]
As regards the Violation of COMELEC Resolution No. 2958, in relation to Section 261
of the Omnibus Election Code, the trial court acquitted the petitioner of the
offense as his use and possession of a gun was not for the purpose of disrupting
election activities.[23] In conclusion, the trial court held:

WHEREFORE, JUDGMENT is hereby rendered as follows:

1. Under CRIM. CASE NO. U-9610, [Rujjeric] PALAGANAS is hereby

CONVICTED beyond reasonable doubt of the crime of HOMICIDE (Not Murder) with the
use of an unlicensed firearm. The penalty imposable is in its maximum period which
is 20 years. The Court sentences [Rujjeric] Palaganas to suffer the penalty of
Reclusion Temporal in its maximum period or 20 years of imprisonment; and to pay
the heirs of [MELTON] Ferrer the sum of P7,791.50 as actual medical expenses of
[MELTON] Ferrer; P500,000.00 as moral damages representing unearned income of
[MELTON]; P50,000.00 for the death of [MELTON]; P50,000.00 for exemplary damages
and P100,000.00 for burial and funeral expenses.

Ferdinand Palaganas is hereby ACQUITTED for failure of the prosecution to prove

conspiracy and likewise, for failure to prove the guilt of Ferdinand Palaganas
beyond reasonable doubt.

2. Under CRIM. CASE NO. U-9608, [Rujjeric] PALAGANAS is hereby

CONVICTED beyond reasonable doubt of the crime of FRUSTRATED HOMICIDE (Not
Frustrated Murder), with the use of an unlicensed firearm, the Court sentences him
to suffer the penalty of Prision Mayor in its maximum period or 12 years of
imprisonment and to pay Servillano Ferrer the sum of P163,569.90 for his medical
expenses and P50,000.00 for exemplary damages;

Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove conspiracy

and likewise, for failure to prove the guilt of Ferdinand Palaganas beyond
reasonable doubt.

3. Under CRIM. CASE NO. U-9609, [Rujjeric] PALAGANAS is hereby

CONVICTED beyond reasonable doubt of the crime of FRUSTRATED HOMICIDE (Not
Frustrated Murder), with the use of an unlicensed firearm, the Court sentences him
to suffer the penalty of Prision Mayor in its maximum period or 12 years of
imprisonment; and to pay Michael Ferrer the sum of P2,259.35 for his medical
expenses and P50,000.00 for exemplary damages;

Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove conspiracy

and likewise, for failure to prove the guilt of Ferdinand Palaganas beyond
reasonable doubt.

Ordering accused [Rujjeric] Palaganas to pay Mrs. Elena Ferrer, the mother of the
Ferrer brothers, the amount of P100,000.00 as attorneys fees in CRIM. CASES NOS. U-
9608, U-9609, U-9610.

4. Under CRIM. CASE NO. U-9634, for failure of the prosecution to

prove the guilt of [Rujjeric] Palaganas beyond reasonable doubt of the crime of
Violation of COMELEC Resolution No. 2958 in relation with Section 261 of the
Omnibus Election Code, the Court ACQUITS [RUJJERIC] PALAGANAS.[24]

Aggrieved, the petitioner appealed the foregoing Decision of the RTC dated 28
October 1998, before the Court of Appeals. In its Decision dated 30 September 2004,
the Court of Appeals affirmed with modifications the assailed RTC Decision. In
modifying the Decision of the trial court, the appellate court held that the
mitigating circumstance of voluntary surrender under Article 13, No. 7, of the
Revised Penal Code should be appreciated in favor of petitioner since the latter,
accompanied by his counsel, voluntarily appeared before the trial court, even prior
to its issuance of a warrant of arrest against him.[25] It also stated that the
Indeterminate Sentence Law should be applied in imposing the penalty upon the
petitioner.[26] The dispositive portion of the Court of Appeals Decision reads:

WHEREFORE, the judgment of conviction is hereby AFFIRMED, subject to the

MODIFICATION that the penalty to be imposed for the crimes which the appellant
committed are as follows:

(1) For Homicide (under Criminal Case No. U-9610), the appellant is ordered to
suffer imprisonment of ten (10) years of prision mayor as minimum to seventeen (17)
years and four (4) months of reclusion temporal as maximum. Appellant is also
ordered to pay the heirs of Melton Ferrer civil indemnity in the amount of
P50,000.00, moral damages in the amount of P50,000.00 without need of proof and
actual damages in the amount of P43,556.00.

(2) For Frustrated Homicide (under Criminal Case No. U-9609), the appellant is
hereby ordered to suffer imprisonment of four (4) years and two (2) months of
prision correcional as minimum to ten (10) years of prision mayor as maximum.
Appellant is also ordered to pay Michael Ferrer actual damages in the amount of
P2,259.35 and moral damages in the amount of P30,000.00.

(3) For Frustrated Homicide (under Criminal Case No. U-9608), the appellant is
hereby penalized with imprisonment of four (4) years and two (2) months of prision
correcional as minimum to ten (10) years of prision mayor as maximum. Appellant is
also ordered to pay Servillano Ferrer actual damages in the amount of P163,569.90
and moral damages in the amount of P30,000.00.[27]

On 16 November 2004, petitioner lodged the instant Petition for Review before this
Court on the basis of the following arguments:

I.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT OF CONVICTION OF THE
TRIAL COURT.

II.
THE HONORABLE COURT OF APPEALS ERRED IN NOT ACQUITTING ACCUSED-APPELLANT ON THE
GROUND OF LAWFUL SELF-DEFENSE.[28]

Anent the first issue, petitioner argued that all the elements of a valid self-
defense are present in the instant case and, thus, his acquittal on all the charges
is proper; that when he fired his gun on that fateful night, he was then a victim
of an unlawful aggression perpetrated by the Ferrer brothers; that he, in fact,
sustained an injury in his left leg and left shoulder caused by the stones thrown
by the Ferrer brothers; that the appellate court failed to consider a material
evidence described as Exhibit O; that Exhibit O should have been given due weight
since it shows that there was slug embedded on the sawali wall near the sign
Tidbits Caf and Videoke Bar; that the height from which the slug was taken was
about seven feet from the ground; that if it was true that petitioner and Ferdinand
were waiting for the Ferrer brothers outside the videoke bar in order to shoot
them, then the trajectory of the bullets would have been either straight or
downward and not upward considering that the petitioner and the Ferrer brothers
were about the same height (56-58); that the slug found on the wall was, in fact,
the warning shot fired by the petitioner; and, that if this exhibit was properly
appreciated by the trial court, petitioner would be acquitted of all the charges.
[29]
Moreover, petitioner contended that the warning shot proved that that the Ferrer
brothers were the unlawful aggressors since there would have been no occasion for
the petitioner to fire a warning shot if the Ferrer brothers did not stone him;
that the testimony of Michael in the trial court proved that it was the Ferrer
brothers who provoked petitioner to shoot them; and that the Ferrer brothers pelted
them with stones even after the warning shot.[30]

Petitioners contention must fail.

Article 11, paragraph (1), of the Revised Penal Code provides for the elements
and/or requisites in order that a plea of self-defense may be validly considered in
absolving a person from criminal liability, viz:

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;

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.
x x x.

As an element of self-defense, unlawful aggression refers to an assault or attack,

or a threat thereof in an imminent and immediate manner, which places the
defendants life in actual peril.[31] It is an act positively strong showing the
wrongful intent of the aggressor and not merely a threatening or intimidating
attitude.[32] It is also described as a sudden and unprovoked attack of immediate
and imminent kind to the life, safety or rights of the person attacked.[33]

There is an unlawful aggression on the part of the victim when he puts in actual or
imminent peril the life, limb, or right of the person invoking self-defense. There
must be actual physical force or actual use of weapon.[34] In order to constitute
unlawful aggression, the person attacked must be confronted by a real threat on his
life and limb; and the peril sought to be avoided is imminent and actual, not
merely imaginary.[35]

In the case at bar, it is clear that there was no unlawful aggression on the part
of the Ferrer brothers that justified the act of petitioner in shooting them. There
were no actual or imminent danger to the lives of petitioner and Ferdinand when
they proceeded and arrived at the videoke bar and saw thereat the Ferrer brothers.
It appears that the Ferrer brothers then were merely standing outside the videoke
bar and were not carrying any weapon when the petitioner arrived with his brother
Ferdinand and started firing his gun.[36]

Assuming, arguendo, that the Ferrer brothers had provoked the petitioner to shoot
them by pelting the latter with stones, the shooting of the Ferrer brothers is
still unjustified. When the Ferrer brothers started throwing stones, petitioner was
not in a state of actual or imminent danger considering the wide distance (4-5
meters) of the latter from the location of the former.[37] Petitioner was not
cornered nor trapped in a specific area such that he had no way out, nor was his
back against the wall. He was still capable of avoiding the stones by running away
or by taking cover. He could have also called or proceeded to the proper
authorities for help. Indeed, petitioner had several options in avoiding dangers to
his life other than confronting the Ferrer brothers with a gun.

The fact that petitioner sustained injuries in his left leg and left shoulder,
allegedly caused by the stones thrown by the Ferrer brothers, does not signify that
he was a victim of unlawful aggression or that he acted in self-defense.[38] There
is no evidence to show that his wounds were so serious and severe. The
superficiality of the injuries sustained by the petitioner is no indication that
his life and limb were in actual peril.[39]

Petitioners assertion that, despite the fact that he fired a warning shot, the
Ferrer brothers continued to pelt him with stones,[40] will not matter exonerate
him from criminal liability. Firing a warning shot was not the last and only option
he had in order to avoid the stones thrown by the Ferrer brothers. As stated
earlier, he could have run away, or taken cover, or proceeded to the proper
authorities for help. Petitioner, however, opted to shoot the Ferrer brothers.

It is significant to note that the shooting resulted in the death of Melton, and
wounding of Servillano and Michael. With regard to Melton, a bullet hit his right
thigh, and another bullet hit his head which caused his instant death.[41] As
regards Servillano, a bullet penetrated two of his vital organs, namely, the large
intestine and urinary bladder.[42] He underwent two (2) surgeries in order to
survive and fully recover.[43] Michael, on the other hand, sustained a gunshot
wound on the right shoulder.[44] It must also be noted that the Ferrer brothers
were shot near the videoke bar, which contradict petitioners claim he was chased by
the Ferrer brothers. Given the foregoing circumstances, it is difficult to believe
that the Ferrer brothers were the unlawful aggressors. As correctly observed by the
prosecution, if the petitioner shot the Ferrer brothers just to defend himself, it
defies reason why he had to shoot the victims at the vital portions of their body,
which even led to the death of Melton who was shot at his head.[45] It is an oft-
repeated rule that the nature and number of wounds inflicted by the accused are
constantly and unremittingly considered important indicia to disprove a plea of
self-defense.[46]

Let it not be forgotten that unlawful aggression is a primordial element in self-

defense.[47] It is an essential and indispensable requisite, for without unlawful
aggression on the part of the victim, there can be, in a jural sense, no complete
or incomplete self-defense.[48] Without unlawful aggression, self-defense will not
have a leg to stand on and this justifying circumstance cannot and will not be
appreciated, even if the other elements are present.[49] To our mind, unlawful
aggression, as an element of self-defense, is wanting in the instant case.

The second element of self-defense requires that the means employed by the person
defending himself must be reasonably necessary to prevent or repel the unlawful
aggression of the victim. The reasonableness of the means employed may take into
account the weapons, the physical condition of the parties and other circumstances
showing that there is a rational equivalence between the means of attack and the
defense.[50] In the case at bar, the petitioners act of shooting the Ferrer
brothers was not a reasonable and necessary means of repelling the aggression
allegedly initiated by the Ferrer brothers. As aptly stated by the trial court,
petitioners gun was far deadlier compared to the stones thrown by the Ferrer
brothers.[51]

Moreover, we stated earlier that when the Ferrer brothers allegedly threw stones at
the petitioner, the latter had other less harmful options than to shoot the Ferrer
brothers. Such act failed to pass the test of reasonableness of the means employed
in preventing or repelling an unlawful aggression.

With regard to the second issue, petitioner asserts that the Court of Appeals erred
in not acquitting him on the ground of lawful self-defense.
Petitioners argument is bereft of merit.

In resolving criminal cases where the accused invokes self-defense to escape

criminal liability, this Court consistently held that where an accused admits
killing the victim but invokes self-defense, it is incumbent upon the accused to
prove by clear and convincing evidence that he acted in self-defense.[52] As the
burden of evidence is shifted on the accused to prove all the elements of self-
defense, he must rely on the strength of his own evidence and not on the weakness
of the prosecution.[53]

As we have already found, there was no unlawful aggression on the part of the
Ferrer brothers which justified the act of petitioner in shooting them. We also
ruled that even if the Ferrer brothers provoked the petitioner to shoot them, the
latters use of a gun was not a reasonable means of repelling the act of the Ferrer
brothers in throwing stones. It must also be emphasized at this point that both the
trial court and the appellate court found that petitioner failed to established by
clear and convincing evidence his plea of self-defense. In this regard, it is
settled that when the trial courts findings have been affirmed by the appellate
court, said findings are generally conclusive and binding upon this Court.[54] In
the present case, we find no compelling reason to deviate from their findings.
Verily, petitioner failed to prove by clear and convincing evidence that he is
entitled to an acquittal on the ground of lawful self-defense.

On another point, while we agree with the trial court and the Court of Appeals that
petitioner is guilty of the crime of Homicide for the death of Melton in Criminal
Case No. U-9610, and Frustrated Homicide for the serious injuries sustained by
Servillano in Criminal Case No. U-9608, we do not, however, concur in their ruling
that petitioner is guilty of the crime of Frustrated Homicide as regards to Michael
in Criminal Case No. U-9609. We hold that petitioner therein is guilty only of the
crime of Attempted Homicide.

Article 6 of the Revised Penal Code states and defines the stages of a felony in
the following manner:

ART. 6. Consummated, frustrated, and attempted felonies. Consummated felonies, as

well as those which are frustrated and attempted, are punishable.

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

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

Based on the foregoing provision, the distinctions between frustrated and attempted
felony are summarized as follows:

1.) In frustrated felony, the offender has performed all the acts of
execution which should produce the felony as a consequence; whereas in attempted
felony, the offender merely commences the commission of a felony directly by overt
acts and does not perform all the acts of execution.
2.) In frustrated felony, the reason for the non-accomplishment of the
crime is some cause independent of the will of the perpetrator; on the other hand,
in attempted felony, the reason for the non-fulfillment of the crime is a cause or
accident other than the offenders own spontaneous desistance.

In addition to these distinctions, we have ruled in several cases that when the
accused intended to kill his victim, as manifested by his use of a deadly weapon in
his assault, and his victim sustained fatal or mortal wound/s but did not die
because of timely medical assistance, the crime committed is frustrated murder or
frustrated homicide depending on whether or not any of the qualifying circumstances
under Article 249 of the Revised Penal Code are present.[55] However, if the
wound/s sustained by the victim in such a case were not fatal or mortal, then the
crime committed is only attempted murder or attempted homicide.[56] If there was no
intent to kill on the part of the accused and the wound/s sustained by the victim
were not fatal, the crime committed may be serious, less serious or slight physical
injury.[57]

Based on the medical certificate of Michael, as well as the testimony of the

physician who diagnosed and treated Michael, the latter was admitted and treated at
the Dagupan Doctors-Villaflor Memorial Hospital for a single gunshot wound in his
right shoulder caused by the shooting of petitioner.[58] It was also stated in his
medical certificate that he was discharged on the same day he was admitted and that
the treatment duration for such wound would be for six to eight days only.[59]
Given these set of undisputed facts, it is clear that the gunshot wound sustained
by Michael in his right shoulder was not fatal or mortal since the treatment period
for his wound was short and he was discharged from the hospital on the same day he
was admitted therein. Therefore, petitioner is liable only for the crime of
attempted homicide as regards Michael in Criminal Case No. U-9609.

With regard to the appreciation of the aggravating circumstance of use of an

unlicensed firearm, we agree with the trial court and the appellate court that the
same must be applied against petitioner in the instant case since the same was
alleged in the informations filed against him before the RTC and proven during the
trial. However, such must be considered as a special aggravating circumstance, and
not a generic aggravating circumstance.

Generic aggravating circumstances are those that generally apply to all crimes such
as those mentioned in Article 14, paragraphs No. 1, 2, 3, 4, 5, 6, 9, 10, 14, 18,
19 and 20, of the Revised Penal Code. It has the effect of increasing the penalty
for the crime to its maximum period, but it cannot increase the same to the next
higher degree. It must always be alleged and charged in the information, and must
be proven during the trial in order to be appreciated.[60] Moreover, it can be
offset by an ordinary mitigating circumstance.

On the other hand, special aggravating circumstances are those which arise under
special conditions to increase the penalty for the offense to its maximum period,
but the same cannot increase the penalty to the next higher degree. Examples are
quasi-recidivism under Article 160 and complex crimes under Article 48 of the
Revised Penal Code. It does not change the character of the offense charged.[61] It
must always be alleged and charged in the information, and must be proven during
the trial in order to be appreciated.[62] Moreover, it cannot be offset by an
ordinary mitigating circumstance.

It is clear from the foregoing that the meaning and effect of generic and special
aggravating circumstances are exactly the same except that in case of generic
aggravating, the same CAN be offset by an ordinary mitigating circumstance whereas
in the case of special aggravating circumstance, it CANNOT be offset by an ordinary
mitigating circumstance.

Aside from the aggravating circumstances abovementioned, there is also an

aggravating circumstance provided for under Presidential Decree No. 1866,[63] as
amended by Republic Act No. 8294,[64] which is a special law. Its pertinent
provision states:

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

In interpreting the same provision, the trial court reasoned that such provision is
silent as to whether it is generic or qualifying.[65] Thus, it ruled that when the
law is silent, the same must be interpreted in favor of the accused.[66] Since a
generic aggravating circumstance is more favorable to petitioner compared to a
qualifying aggravating circumstance, as the latter changes the nature of the crime
and increase the penalty thereof by degrees, the trial court proceeded to declare
that the use of an unlicensed firearm by the petitioner is to be considered only as
a generic aggravating circumstance.[67] This interpretation is erroneous since we
already held in several cases that with the passage of Republic Act. No. 8294 on 6
June 1997, the use of an unlicensed firearm in murder or homicide is now considered
as a SPECIAL aggravating circumstance and not a generic aggravating circumstance.
[68] Republic Act No. 8294 applies to the instant case since it took effect before
the commission of the crimes in 21 April 1998. Therefore, the use of an unlicensed
firearm by the petitioner in the instant case should be designated and appreciated
as a SPECIAL aggravating circumstance and not merely a generic aggravating
circumstance.

As was previously established, a special aggravating circumstance cannot be offset

by an ordinary mitigating circumstance. Voluntary surrender of petitioner in this
case is merely an ordinary mitigating circumstance. Thus, it cannot offset the
special aggravating circumstance of use of unlicensed firearm. In accordance with
Article 64, paragraph 3 of the Revised Penal Code, the penalty imposable on
petitioner should be in its maximum period.[69]

As regards the civil liability of petitioner, we deem it necessary to modify the

award of damages given by both courts.

In Criminal Case No. U-9610 for Homicide, we agree with both courts that the proper
amount of civil indemnity is P50,000.00, and that the proper amount for moral
damages is P50,000.00 pursuant to prevailing jurisprudence.[70] However, based on
the receipts for hospital, medicine, funeral and burial expenses on record, and
upon computation of the same, the proper amount of actual damages should be
P42,374.18, instead of P43,556.00. Actual damages for loss of earning capacity
cannot be awarded in this case since there was no documentary evidence to
substantiate the same.[71] Although there may be exceptions to this rule,[72] none
is availing in the present case. Nevertheless, since loss was actually established
in this case, temperate damages in the amount of P25,000.00 may be awarded to the
heirs of Melton Ferrer. Under Article 2224 of the New Civil Code, temperate or
moderate damages may be recovered when the court finds that some pecuniary loss was
suffered but its amount cannot be proved with certainty. Moreover, exemplary
damages should be awarded in this case since the presence of special aggravating
circumstance of use of unlicensed firearm was already established.[73] Based on
prevailing jurisprudence, the award of exemplary damages for homicide is
P25,000.00.[74]

In Criminal Cases No. U-9608 and U-9609, we agree with both courts as to the award
of actual damages and its corresponding amount since the same is supported by
documentary proof therein. The award of moral damages is also consistent with
prevailing jurisprudence. However, exemplary damages should be awarded in this case
since the presence of special aggravating circumstance of use of unlicensed firearm
was already established. Based on prevailing jurisprudence, the award of exemplary
damages for both the attempted and frustrated homicide shall be P25,000.00 for
each.

WHEREFORE, premises considered, the decision of the Court of Appeals dated 30

September 2004 is hereby AFFIRMED with the following MODIFICATIONS:

(1) In Criminal Case No. U-9609, the petitioner is found guilty of the crime of
attempted homicide. The penalty imposable on the petitioner is prision correccional
under Article 51 of the Revised Penal Code.[75] There being a special aggravating
circumstance of the use of an unlicensed firearm and applying the Indeterminate
Sentence of Law, the penalty now becomes four (4) years and two (2) months of
arresto mayor as minimum period to six (6) years of prision correccional as maximum
period. As regards the civil liability of petitioner, the latter is hereby ordered
to pay Michael Ferrer exemplary damages in the amount of P25,000.00 in addition to
the actual damages and moral damages awarded by the Court of Appeals.

(2) In Criminal Case No. U-9608, the penalty imposable on the petitioner for the
frustrated homicide is prision mayor under Article 50 of the Revised Penal Code.
[76] There being a special aggravating circumstance of the use of an unlicensed
firearm and applying the Indeterminate Sentence Law, the penalty now becomes six
(6) years of prision correccional as minimum period to twelve (12) years of prision
mayor as maximum period. As regards the civil liability of petitioner, the latter
is hereby ordered to pay Servillano Ferrer exemplary damages in the amount of
P25,000.00 in addition to the actual damages and moral damages awarded by the Court
of Appeals.

(3) In Criminal Case No. U-9610, the penalty imposable on petitioner for the
homicide is reclusion temporal under Article 249 of the Revised Penal Code.[77]
There being a special aggravating circumstance of the use of an unlicensed firearm
and applying the Indeterminate Sentence Law, the penalty now is twelve (12) years
of prision mayor as minimum period to twenty (20) years of reclusion temporal as
maximum period. As regards the civil liability of petitioner, the latter is hereby
ordered to pay Melton Ferrer exemplary damages in the amount of P25,000.00 in
addition to the actual damages and moral damages awarded by the Court of Appeals.
The actual damages likewise awarded by the Court of Appeals is hereby reduced to
P42,374.18.

SO ORDERED.
G.R. Nos. L-30527-28 March 29, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PIO RICOHERMOSO, SEVERO PADERNAL, JUAN PADERNAL, ROSENDO PERPEAN, MACARIO MONTEREY
and RITO MONTEREY, defendants, JUAN PADERNAL and SEVERO PADERNAL, defendants-
appellants.

Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General

Antonio A. Torres and Trial Attorney Lolita C. Dumlao for plaintiff-appellee.

Rogerio S. T. Cadag for defendants-appellants.

AQUINO, J.:p
Severo Padernal and Juan Padernal appealed from the decision of the Circuit
Criminal Court at Lucena City, convicting them of murder, sentencing each of them
to reclusion perpetua and ordering them to pay solidarily the sum of twelve
thousand pesos to the heirs of Geminiano de Leon and to pay the costs (Criminal
Case No. CCC-IX-37-Quezon or 1922-CFI-Gumaca).

In the same decision they were convicted of lesiones leves. Each one was sentenced
to suffer the penalty of fifteen (15) days of arresto menor and to pay the costs.
Rosendo Perpean, Rito Monterey and Macario Monterey were acquitted (Criminal Case
No. CCC-IX-38-Quezon or 1923-CFI-Gumaca).

The facts disclosed in the prosecution's evidence, on which the judgment of

conviction was based, are as follows:

At about nine o'clock in the morning of January 30, 1965 Geminiano de Leon,
together with his thirty-three-year old common-law wife Fabiana Rosales, his
twenty-four-year old son Marianito de Leon and one Rizal Rosales, encountered Pio
Ricohermoso in Barrio Tagbacan Silangan, Catanauan, Quezon.

Geminiano owned a parcel of land in that barrio which Ricohermoso cultivated as

kaingin. Geminiano asked Ricohermoso about his share of the palay harvest. He added
that he should at least be allowed to taste the palay harvested from his land.
Ricohermoso answered that Geminiano could go to his house anytime and he would give
the latter palay. Geminiano rejoined that he could not get the palay that morning
because he was on his way to Barrio Bagobasin but, on his return, he would stop at
Ricohermoso's house and get the palay.

When Geminiano returned to Barrio Tagbacan Silangan, he stopped at Ricohermoso's

place. It was about two o'clock in the afternoon. Geminiano sat on a sack beside
Fabiana Rosales in front of the house while Marianito stood about three meters
behind his father. A .22 caliber rifle was slung on Marianito's right shoulder.
Ricohermoso stood near the door of his house while Severo Padernal was stationed
near the eaves of the house.

Geminiano asked Ricohermoso about the palay. The latter, no longer conciliatory and
evidently hostile, answered in a defiant tone: "Whatever happens, I will not give
you palay." Geminiano remonstrated: "Why did you tell us to pass by your house, if
you were not willing to give the palay?"

At that juncture, as if by pre-arrangement, Ricohermoso unsheathed his bolo and

approached Geminiano from the left, while Severo Padernal (Ricohermoso's father-in-
law) got an axe and approached Geminiano from the right. The latter looked up to
the sexagenarian Severo Padernal, with both hands raised and pleaded: "Mamay
(Grandpa), why will you do this to us. We will not fight you." While Geminiano was
still looking up to Severo Padernal on his right, Ricohermoso walked to Geminiano's
left, and, when about one meter from him, stabbed him on the neck with his bolo.
Geminiano fell face downward on the ground. While in that helpless position, he was
hacked on the back with an axe by Severo Padernal.

At that same place and time, while Severo Padernal and Ricohermoso were assaulting
Geminiano de Leon, another episode was taking place. Juan Padernal (Ricohermoso's
brother-in-law and the son of Severo) suddenly embraced Marianito de Leon from
behind, with his right arm locked around Marianito's neck and his left hand
pressing Marianito's left forearm. They grappled and rolled downhill towards a
camote patch. Marianito passed out. When he regained consciousness, his rifle was
gone. He walked uphill, saw his mortally wounded father Geminiano in his death
throes, and embraced him. He carried Geminiano for a short distance. The fifty-one
year old Geminiano died at two o'clock on that same day.
Doctor Isabela A. Matundan certified that Geminiano de Leon sustained the following
wounds:

1. Wound, incised, neck, lateral aspect, left, cutting the carotid artery and
jugular vein, 4 inches in length crosswise with fracture of the cervical vertebra.

2. Wound, incised, back lumbar region, left, 4 inches, directed anteriorly, 3

inches deep.

3. Wound, incised, waist, dorsal, 1 inches, skin only.

4. Hematoma, forearm, upper third, left. (Exh. B).

Doctor Matundan said that the first wound was fatal. It could have caused
instantaneous death because it was a deep wound which pierced the carotid artery
and jugular vein (Exh. C). The second wound on the back could likewise have caused
the victim's death if it had penetrated the kidney.

Doctor Matundan found that Marianito de Leon sustained multiple abrasions on the
neck and abdomen and a lacerated wound on the left foot which would heal from one
to nine days even without medical treatment.

Appellants' version is that in the afternoon of January 30, 1965, when Ricohermoso
refused to give any palay to Geminiano de Leon, because the land tilled by the
former was allegedly a public land, Geminiano approached Ricohermoso. When
Geminiano unsheathed his bolo, Ricohermoso met him, drew his bolo and struck
Geminiano on the left side of the neck. The latter tried to parry the blow. He was
wounded in the wrist. As Geminiano turned right to flee, Ricohermoso struck him
again on the left side of his body, causing him to fall on the ground. Geminiano
died on the spot due to the bleeding from the wound on his neck.

While Geminiano was being assaulted, his son Marianito tried to shoot with his
rifle but Juan Padernal disabled him and wrested the gun. Marianito suffered
abrasions on the neck and other parts of the body (Pages 1 to 3, appellants'
brief).

It is manifest that the defendants fashioned their version in such a way as to

shift the responsibility for the killing to Ricohermoso, a fugitive from justice
who has not been tried. They also tried to exculpate Severo Padernal and to prove
that Ricohermoso acted in self-defense.

The appellants filed their brief on February 6, 1970. Later, Severo Padernal
withdrew his appeal. The withdrawal was granted in the resolution dated November 3,
1970 (Page 206, Rollo). That withdrawal strengthened the case for the prosecution
or the appellee and rendered inoperative appellants' version of the case. Severo
Padernal in effect accepted as correct the prosecution's version of the tragic
incident and the trial court's finding that he conspired with Ricohermoso and his
son, Juan, to kill Geminiano de Leon.

The only issue in this appeal, which concerns Juan Padernal, is whether he
conspired with Ricohermoso and Severo Padernal to kill Geminiano de Leon.

The trial court rationalized its conclusion that there was conspiracy by stating
that their conduct revealed unity of purpose and a concerted effort to encompass
Geminiano's death.

Appellant Juan Padernal invokes the justifying circumstance of avoidance of a

greater evil or injury (par. 4, Art. 11, Revised Penal Code) in explaining his act
of preventing Marianito de Leon from shooting Ricohermoso and Severo Padernal. His
reliance on that justifying circumstance is erroneous. The act of Juan Padernal in
preventing Marianito de Leon from shooting Ricohermoso and Severo Padernal, who
were the aggressors, was designed to insure the killing of Geminiano de Leon
without any risk to his assailants.

Juan Padernal was not avoiding any evil when he sought to disable Marianito.
Padernal's malicious intention was to forestall any interference in the felonious
assault made by his father and brother-in-law on Geminiano. That situation is
unarguably not the case envisaged in paragraph 4 of article 11.

Juan Padernal contends that he was not a co-principal because he did not take any
direct part in the killing of Geminiano, that he did not force or induce
Ricohermoso to stab Geminiano and that he allegedly did not cooperate in its
commission. That contention is not well-taken.

It should be recalled that, in the morning, Geminiano had an understanding with

Ricohermoso that he (Geminiano) would return in the afternoon to get his share of
the palay harvest. Ricohermoso gave Geminiano the impression that he (Ricohermoso)
was amenable to giving Geminiano his share of the harvest. However, during the
interval, Ricohermoso changed his mind. Instead of remaining steadfast to his
original intention to give Geminiano palay, Ricohermoso planned with his father-in-
law, Severo Padernal, and his brother-in-law, appellant Juan Padernal, the manner
of liquidating Geminiano as to stop him from pestering Ricohermoso with demands for
a share in the harvest.

So, when Geminiano reappeared at Ricohermoso's place in the afternoon, Severo

Padernal, Ricohermoso Juan Padernal, like actors in a well-rehearsed play,
performed their assigned roles with dramatic precision. Severo Padernal and
Ricohermoso, one armed with an axe and the other with a bolo, in a pincer movement,
confronted Geminiano de Leon. Simultaneously with that maneuver, the thirty-five-
year old Juan Padernal embraced Marianito de Leon and prevented him from firing at
Severo Padernal and Ricohermoso or from helping his father.

Considering the trio's behavior and appellant Juan Padernal's close relationship to
Ricohermoso and Severo Padernal, the ineluctable conclusion is that he acted in
conspiracy with them. He coordinated and timed his seizure of Marianito with the
assault of Ricohermoso and Severo Padernal on Geminiano. It is doubtful if the
assailants could have consummated the killing of Geminiano, without their suffering
any injury, if Marianito had not been rendered helpless by appellant Juan Padernal.

The circumstances surrounding the killing of Geminiano de Leon alevosia or

treachery. His hands were raised and he was pleading for mercy with Severo
Padernal, when Ricohermoso struck him on the neck with a bolo. The fact that an
exchange of words preceded the assault would not negate the treacherous character
of the attack. Geminiano did not expect that Ricohermoso would renege on his
promise to give him palay and that he would adopt a bellicose attitude. Juan
Padernal's role of weakening the defense, by disabling Marianito de Leon, was part
and parcel of the means of execution deliberately resorted to by the assailants to
insure the assassination of Geminiano de Leon without any risk to themselves (Par.
16, Article 14, Revised Penal Code).

Treachery was appreciated in a case where the accused fired at the victim who, with
hands upraised, pleaded in a loud voice: "Do not shoot me; investigate first what
was my fault" (People vs. Barba, 97 Phil. 991. See People vs. Dagundong, 108 Phil.
682, 684, 693).

As to the other case, L-30528, the charge against the appellants was attempted
murder with respect to Marianito de Leon. The trial court convicted them lesiones
leves. The case was included in this appeal apparently pursuant to the provision in
section 17(1) of the Judiciary Law that a case arising out of the same occurrence,
as that in which reclusion perpetua was imposed, is appealable to this Court.

Inasmuch as Juan Padernal did not touch upon the lesiones leves case in his brief,
he, like his father Severo, seems to have acquiesced in the correctness of the
trial court's decision.

WHEREFORE, the judgment of the lower court as to appellant Juan Padernal is

affirmed with costs against him.

SO ORDERED.
G.R. No. L-18660 December 22, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
FELIPE DELIMA, defendant-appellant.

Tancinco & Rosales for appellant.

Attorney-General Villa-Real for appellee.

ROMUALDEZ, J.:

Lorenzo Napilon had escaped from the jail where he was serving sentence.

Some days afterwards the policeman Felipe Delima, who was looking for him, found
him in the house of Jorge Alegria, armed with a pointed piece of bamboo in the
shape of a lance, and demanded his surrender. The fugitive answered with a stroke
of his lance. The policeman dodged, it, and to impose his authority fired his
revolver, but the bullet did not hit him. The criminal ran away, without parting
with his weapon. These peace officer went after him and fired again his revolver,
this time hitting and killing him.

The policeman was tried and convicted for homicide and sentenced to reclusion
temporal and the accessory penalties. He appeals from that judgment which must be
reversed.

That killing was done in the performance of a duty. The deceased was under the
obligation to surrender, and had no right, after evading service of his sentence,
to commit assault and disobedience with a weapon in the hand, which compelled the
policeman to resort to such an extreme means, which, although it proved to be
fatal, was justified by the circumstances.lawphil.net

Article 8, No. 11, of the Penal Code being considered, Felipe Delima committed no
crime, and he is hereby acquitted with the costs de oficio. So ordered.

EN BANC

G.R. Nos. L-1940-42 March 24, 1949

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
IGNACIO LAGATA, defendant-appellant.

Vicente del Villar for appellant.

Assistant Solicitor General Guillermo E. Torres and Solicitor Jaime de los Angeles
for appellee.

PERFECTO, J.:

The witnesses in the this case testified in substance as follows:

P R O S E C U T I O N

1. Eusebio Abria 20 single farmer Jinangutdan, Santa Rita Samar. On October 3,

1946 he was in the provincial jail detained for illegal possession of firearm, but
his case was dismissed. Ignacio Lagata was a provincial guard Six Prisoners were
then assigned to work in the capitol's plaza; Jesus, Tipace, Eusebio Mariano the
witness and Epifanio Labong. their guard ordered them to go to the nursery to pick
up gabi. Not long afterwards they were called to assemble. Epifanio Labong was
missing. The nursery is near the provincial hospital in Catbalogan. The place was
grassy. Lagata ordered the five prisoner to call Labong (4-7). As Labong did not
answer Lagata ordered the five prisoners to look for him. They followed the trail.
Upon reaching the nation highway, Lagata called them. As Labong did not answer
their call Lagata ordered the five to look farther for him. The five prisoners went
towards the mountain. Upon reaching a camote plantation, "I saw footprints. I
called my companions. While we were all in the camote plantation I did not know
that I was shot by Ignacio Lagata. He was about four meter away from me. He fired
at my left arm." At the time the witness was standing one of his companions was at
his right side three or four meter behind him. All walked almost together at the
moment because they wanted to see the footprints pointed by the witness. "At the
moment that he was hit he immediately called the attention of Ignacio Lagata 'Mano,
I am wounded.' He said it is because you did not approach to me." (8-9). "When I
saw that he again manipulated the chamber of his gun I ran away. When I say that my
other companion ran away, I ran also. I noticed that my left arm was wounded. When
I was already sitting by the front of the coconut tree I heard another gun shot."
Tipace is already dead "I did not see him anymore. When Ignacio Lagata passed by
where I was I Requested him to take me. He brought me to the justice building
Hospital. My left arm is amputated just right at the joint between the shoulder and
the arm. It is not yet completely healed." The witness had no intention to run from
Lagata. (11). Labong asked Lagata permission to gather gabi. The other prisoner did
not say anything. Lagata told them to go to the nursery. While they were gathering
gabi Lagata was near them. (12). But he could not see everybody because there was
talahib growing in the place and it was tall. The witness heard three shots. The
second one hit him. After the first shot "we were all assembled." (132-14). The
witness did not see Tipace being shot. "The reason as to why I ran was because I
was afraid that I might be shot again." (16). His companions were probably scared
and that is why they ran. (17).

2. Mariano Ibaez, 25, married detained prisoner Zumarraga, Samar. On October 3,

1946, he was in the provincial jail as a detained prisoner. After breakfast, six
prisoner were called: Epifanio Labong Ceferino Tipace, Eustaquio Galet, Jesus
Manoso, Eusebio Abria and the witness, Mariano Ibanez. They went to work in the
plaza of the provincial jail. At about 11:00 o'clock they were taking a rest and
while they were taking a rest the witness heard Lagata inviting the prisoners to go
the nursery to gather near the provincial hospital. They scattered to get gabi. "We
scarcely got three gabis when I heard Ignacio Lagata calling us to assemble." The
place was grassy were picking gabi Lagata was standing by the side of a mango tree.
At the call of Lagata only five them to call for him. (19-21). "Inasmuch as
Epifanio Labong did not answer our call Ignacio Lagata ordered us to go to the
mountain and look for Epifanio Labong. Eusebio then went to the camote plantation.
He foundfootprints and he called Ignacio Lagata to inform him that he saw
footprints. On account of this report of Eusebio that he saw flattened grass and
that hewas unable to look for Epifanio Labong sa Ignacio Lagata filed at him and he
was hit on the left arm." He was at about three meter from Lagata. (22). The
witness was at the left side of Ceferino Tipace at about two meter from Abria.Abria
said, "Mano, I am wounded." Lagata said in turn, "Come around assemble here." Abria
came to the right side of Lagata. (23). "Oncewe were already assembled there
Ignacio Lagata cocked his gun and shot Ceferino Tipace and when I saw that Ceferino
Tipace was hit then I ran away because I had in mind that had i not ran I would
have been shot also." At the time Tipace was "standing and carrying with him on his
left arm some gabi and when he turned to the left that was the time when he was
shot by Ignacio Lagata. The bullet penetrated from the left side of the armpit and
came out from the right side of the body." Tipace was at about two meter then from
Lagata. "At about 4:00 o'clock in the afternoon of that day I returned to the
provincial jail. I did not return immediately because I was afraid." Tipace was
killed. (23). One morning, Lagata gave the witness fist blow on the abdominal
region and kicked him at the back Because the pervious night the witness told the
prisoners not to make much noise. "I did not have ill-feeling because he had the
right to maltreat me even if I was not at fault." (29). At the time they were
searching for Labong before the shooting they were walking in an ordinary way
looking toward the ground one after another at about half a meter from each other.
Lagata was behind all of them. (31).

3. Gilberto C. Rosales 63, married, president Sanitary Division Catbalogan, Samar.

On October 17, 1946, the cadaver of Ceferino Tipace was exhumed. (35). The
witness found in it, "A gun shot wound which went through the body from the lower
left axillary region to the right shoulder." (36).

4. Eustaquio Galet, 20, married detained prisoner. On October 3, 1946, he was one
of the six prisoner who worked in the premises of the capitol building. (38). "We
went to the nursery and each one of us got gabi. The guard Ignacio Lagata was under
the mango tree. I was about ten meter awayfrom him. It was grassy in the place
where we were picking gabi. Not long after we were called by Ignacio Lagata because
we were going home already. One was missing, Epifanio Labong. Ignacio Lagata
ordered us to call Epifanio Labong but Epifanio Labong but Epifanio Labong did not
answer." (39) The talahib plants growing in the place were taller than myself. "
Lagata orderedus to search for Epifanio Labong. We went around the place and then
crossed the national highway and went up the mountain until we reached tom place
where cogon grass were growing. Eusebio Abria and myself saw flattened grass. We
informed Ignacio Lagata that there was a trace where a person had passed by or he
may have gone that way. Then Ignacio Lagata fired one time. While we were searching
for Epifanio Labong each one of us were bent and leaning looking downward. I heard
a gun shot and that was the time when Eusebio Abria was shot and then once he was
hit he called Ignacio Lagata his hand at his wound and then got near Ignacio
Lagata." (40). "Upon seeing that one of our companions was already shot without
fault, I ran away and came down to the capitol building and then went to the
provincial jail and reported the matter to the sergeant of the guard." His
companion then was Jesus Maoso. They reached the provincial jail at about 12
o'clock noon. The shooting took place at about 11:30. (41). The witness heard
Labong ask Lagata to accompany their group to the nursery to gather gabi. When he
was shot Abria was bent and leaning his body downward to the ground while Lagata
was behind him. (42). The witness heard the shot that killed Ceferino Tipace. "I
was already descending near the Capitol building that was the time when I heard the
shot." (43). Jesus Manoso ran away with the witness, but Ceferino Tipaceand Mariano
Ibanez remained. The treatment received by the witness from Lagata was good. (44).

5. Pedro Mayuga, 39, married, chief, Samar Provincial Hospital. On October 3,

1946, prisoner Eusebio Abria was brought to the hospital with a wound on the upper
side of his left arm which was amputated from the shoulder joint. "The patient was
at first given resuscitating medical treatment to combat the shock caused by the
hemorrhage and later the shoulder joint was disarticulated." After his arm was cut,
he was confined in the hospital until November 6. The wound must have been produced
by a gun shot. There are indications that the shot was fired at close range. Very
likely around five meters. (48). There was no possibility of saving the arm because
"all the vital tissues were destroyed and the bone in all the vital parts of the
tissues destroyed from outward and inward." (50).

D E F E N S E

1. Andres Saludario, 49, married, nursery foreman, Catbalogan, Samar. On October

3, 1946, he saw Lagata in the nursery guarding six prisoners. (53-54). The
prisoners were just within the premises of the nursery just beyond the mango tree.
Lagata was about seven meters from them and he was looking at them all the time.
The place was grassy. The grass was about half a meter tall. (55). The ground near
the hill was covered with cogon and talahib. By the height they could cover a man
in standing position. The witness heard about the disappearance of prisoner
Epifanio Labong. At the time, the witness was already far, because he had to attend
to several laborers detained at the capitol building. When he returned from the
capitol building, he was informed that Epifanio Labong disappeared. (57-59). The
witness did not hear any gun shot explosion in the nursery. He saw the accused
guarding the prisoners at about 8:00 o'clock in the morning. (60). The witness
stayed in the nursery until about 8:30, when he came to the capitol building. (61).

2. Ignacio Lagata, 27, married, Catbalogan. On October 3, 1946, he accompanied

the six prisoners from the provincial jail to the plaza of the provincial capitol.
He remained there until 10 o'clock in the morning, when he told them to return to
the provincial jail. The six prisoners requested him to allow them to get some gabi
in the nursery. Lagata went with them to a spot around the mango tree. (63-64). The
grass in the place was knee-high. Lagata was under a mango tree about five meters
from the prisoners. He was watching all of them. They were scattered back, Epifanio
Labong took advantage and escaped. "I did not discover that but when I called them
to assemble I found out that one missing. I asked the rest of the prisoners as to
where Epifanio Labong was. I told the prisoners to go to that spot. We went there
and the prisoners were ahead because they know the place. (66). When we arrived at
the place, we did not see Labong and Tipace called our attention telling us that
this is the place through which Epifanio Labong passed." The witness did not see
the track of Epifanio Labong but the prisoners, however, were the ones who
indicated to him the place through which Epifanio Labong passed. "I followed them.
Up to above the national highway. When we reached up the place another prisoner
called also our attention telling us that here is the place through which Labong
passed and so went up. When we reached above, they were already far from here. So I
told them to stop because they were already far from me. They did not heed my order
to stop. Then I fired up to the air. They scattered. I could only see two of them I
also saw one of them running towards the mountain. So I fired at him." It was
Eusebio Abria, and he was at about five meters from him. "He was going up the
mountain. After I fired at Eusebio Abria, I saw him running. I just left him
because I was looking for the rest. I saw also Ibanez running. He was running
towards me and then around me. I called his attention and told him to stop from
running or else lie down and give up your arm. He did not heed my order. I fired at
him." (67-69). The witness saw Ibanez running before him towards the south road. He
was Tipace. One minute elapsed from the time the witness fired at Abria to the time
he fired at Ibaez. The witness fired at them because he sympathizes with other
policemen from whom other prisoners escaped. (70). "Because if it so happened that
a prisoner escaped under my custody, I would be the one to be put in jail and if I
cannot fire at him, I will be the one to be put in jail. "The truth is that they
ran away." At the time he fired at Tipace and Abria, they were running away. (71).
"What was in my mind was that if I could overtake them and not fire at them, I
would meet the same situation as what other guards met under whose custody
prisoners escaped and some of them were discharged from their duty." Ibanez
testified against the accused because the latter fired at his father-in-law. (72).
One day, the accused maltreated Ibanez. He slapped him two times. He was the only
prisoner he slapped. (73). At the time they were looking for Labong, the prisoners
were walking in line one meter from one to another. The accused was near them.
(77). When he fired at Abria, the latter was about five meters from him and when he
fired at Tipace, the latter was four meters from him. At the time, Tipace was
running side-wise to the accused and he could see where the accused was. His face
was facing the accused. (78). When he fired at Abria, he lost hope to recover
Labong. "I was hopeless already." (80) The picking up of gabi was not part of the
work of the prisoners. (81).

Appellant was charged with murder, serious physical injuries and evasion through
negligence in three separate cases which have been tried jointly.Finding him
guilty, the trial court sentenced him as follows:

(a) For Murder (Case No. 809) Reclusion Perpetua with civil interdiction for life
and perpetual absolute disqualification, indemnify the heirs of Ceferino Tipace Two
Thousand Pesos (2,000) and pay the costs of this action

(b) For serious physical injuries (Case No. 810) An indeterminate imprisonment of
two (2) year and four (4) month as minimum to four (4) year nine (9) month and ten
(10) days of prison correccional as maximum and pay the cost of this action; and

(c) For evasion through negligence (Case No. 811) An indeterminate imprisonment
of two (2) months one (1) day of arresto mayor as minimum to one (1) year one (1)
month and ten (10) days of prison correccional and pay the costs, (p. 45, rec.)

The evidence is conclusion to the effect that the escape of prisoner Epifanio
Labong was due to the negligence of the appellant. The six prisoner were supposed
to work in the plaza of the provincial capitol and to return to jail after said
work but appellants allowed them instead to go to the nursery to gather gabi
without any apparent authority to do so.

Considering that the place was grassy and tall talahib was growing therein the
height of which could conceal persons in standing position appellant must have seen
immediately that it was a choice place for any prisoner that may want to escape.
Such negligence of appellant is punishable under article 224 of the Revised Penal
code, and the penalty imposed by trial court is in accordance with law.

As regards the shooting of Abria and Tipace we are convinced that the facts were as
narrated by the witnesses for the prosecution. Abria was shot when by the witnesses
for then prosecution. Abria was shot when he was onlythree meter away from
appellant and the latter has not even shown that Abria attempted to escape. Tipace
was also shot when he was about four or fivemeter away from appellant. The latter's
allegation that Tipace was running conveying the idea that said prisoner was in
the act of escaping appears to be inconsistent with his own testimony to the
effect that Tipace was running sidewise with his face looking towards appellant
andwith the undisputed fact that Tipace was hit near one axilla, the bullet coming
out from the opposite shoulder. If Tipace's purpose was to escape the natural thing
for him to do would have to give his back to appellant.

The criminal responsibility of appellant regarding the killing of Tipace can be

exacted from him on the basis of his own testimony. The way he fired at Tipace
( whom he misnamed first as Ibaez) is described by appellant in the following
words:.

He was running towards me and then around me.

I called his attention and told him to stop from running or else lie downand give
up your arm. He did not heed my advice.

Inasmuch as he did not heed my advised so I fired at him.

His direction while he was running not exactly towards me but running in front of
me to the left side. (69).

Explaining his reason for firing at Abria and Tipace, appellant gave the following
reason: "Because I sympathize with the other policeman from whom prisoners
escaped." (70). "If it so happened that a prisoner escaped under my custody, I
would be the one to be put in jail and if I cannot fire at him I will be the one to
be put in jail." (71). (Emphasis ours)

It is clear that Lagata had absolutely no reason to fire at Tipace. Lagata could
have fired at him in self defense or if absolutely necessary to avoid his escape.
The record does not show that Tipace was bent on committing any act of aggression
"he was running towards and then around me". (Emphasis ours) How could anyone in
his senses imagine that Tipace intended to escape by running towards and around the
very guard he was supposed to escape from?

There is no question that the escape of Labong scared appellant according to him
because of the experience of other guard who were dismissed from office or even
prosecuted because of prisoners who had escaped under their custody and that it was
his duty to fire against the prisoner if he wanted to be exempt from any
responsibility. Even if appellant sincerely believe, althougherroneously that in
firing the shots be acted in the performance of his official duty the circumstances
of the case show that there was no necessity for him to fire directly against the
prisoners so as seriously wound one of them and kill instantaneously another. While
custodians of prisoners should necessity would authorize them to fire against them.
Their is the burden of proof as to such necessity. The summary liquidation of
Prisoner under flimsy pretexts of attempts of escape, which has been and is being
practiced in dictatorial system of government has always been and is shocking to
the universal conscience of humanity.

Human life is valuable albeit sacred. Cain has been the object of unrelentlesscurse
for centuries and millennia and his name will always be remembered in shame as long
as there are human generation able to read the Genesis. Twenty centuries of
Christianity have not been enough to make less imperative the admonition that Thou
shall not kill," uttered by greatest pundit and prophet of Israel. Laws
constitution world charters have been written to protect human life. Still it is
imperative that all men be imbued with spirit of the Sermon on the Mount that the
words of the gospels be translated into reality and that their meaning fill all
horizon with the eternal aroma of encyclical love of mankind.

As recommended by the prosecuted appellants is entitled to the benefit of the

mitigating circumstance of incomplete justifying circumstance in paragraph5 of
Article 11 of the Revised Penal Code. Consequently appellant shouldbe sentenced for
homicide to an indeterminate penalty of six years andone day of prision mayor to
twelve years and one day of reclusion temporal and in the case of serious physical
injuries to an indeterminate penalty of four months and one day of arresto mayor to
two years, four months and one day of prision correccional.

Modified as above stated the appealed decision is affirmed with costs against
appellant.

Feria, Briones, Tuason and Reyes JJ., concur.

Moran, C.J., concurs in the result.
FIRST DIVISION

RUFINO S. MAMANGUN,
Petitioner,

- versus -

PEOPLE OF THE PHILIPPINES,

Respondent.

G.R. No. 149152

Present:

PUNO, C.J., Chairperson,

SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA, and
GARCIA, JJ.

Promulgated:

February 2, 2007

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

D E C I S I O N

GARCIA, J.:

In this petition for review under Rule 45 of the Rules of Court, petitioner Rufino
Mamangun y Silverio seeks the reversal of the Decision[1] dated January 19, 2001
(promulgated on February 13, 2001) of the Sandiganbayan in its Criminal Case No.
21131, convicting him of the crime of Homicide.
The factual backdrop:
On September 12, 1994, herein petitioner, then a police officer, was charged before
the Sandiganbayan with the crime of Murder, allegedly committed, per the indicting
Information,[2] docketed as Criminal Case No. 21131, as follows:
That on or about the 31st day of July 1992, in the Municipality of Meycauyan, (sic)
Province of Bulacan, Philippines, and within the jurisdiction of this Honorable
Court, the said accused Rufino S. Mamangun, a public officer, being then a Police
Officer (PO2), duly appointed as such and acting in relation to his office, armed
with a gun, with intent to kill, did then and there willfully, unlawfully and
feloniously, with treachery, evident premeditation and abuse of superior strength,
attack, assault and shoot one Gener M. Contreras with the said gun, hitting the
latter on his body, thereby inflicting (sic) him serious physical injuries which
directly cause (sic) his death.

CONTRARY TO LAW.

On arraignment, petitioner, as accused below, duly assisted by a counsel de oficio,

entered a plea of Not Guilty.

In the ensuing trial, the prosecution presented in evidence the testimonies of

Crisanto Ayson (Ayson), an alleged eyewitness, and Dr. Benito Caballero, then the
designated Medico-Legal Officer of Bulacan who performed an autopsy on the cadaver
of the victim.

For its part, the defense adduced in evidence the testimonies of the accused
himself, Rufino Mamangun, his co-policemen at the Philippine National Police (PNP),
namely, PO2 Carlito Cruz, PO4 Hobert O. Diaz and Police Investigator SPO-1 Hernando
B. Banez, all assigned at the Meycauayan Police Station; and those of Lorenzo S.
Abacan and Rogelio Ingco, son and son-in-law, respectively, of Antonio Abacan,
owner of the house on which rooftop the shooting of the victim took place.

It is not disputed that on July 31, 1992, at about 8:00 in the evening, in Brgy.
Calvario, Meycauayan, Bulacan a certain Liberty Contreras was heard shouting,
MagnanakawMagnanakaw. Several residents responded and thereupon chased the suspect
who entered the yard of Antonio Abacan and proceeded to the rooftop of Abacans
house.

At about 9:00 oclock that same evening, the desk officer of the Meycauayan PNP
Police Station, upon receiving a telephone call that a robbery-holdup was in
progress in Brgy. Calvario, immediately contacted and dispatched to the scene the
crew of Patrol Car No. 601 composed of Team Leader SPO1 Andres Legaspi, with PO2
Eugenio Aminas and herein petitioner PO2 Rufino S. Mamangun; and Patrol Car No. 602
composed of Team Leader PO3 Sandiego San Gabriel, with PO2 Carlito Cruz and PO2
Hobert Diaz. With the permission of Abacan, petitioner Mamangun, PO2 Diaz and PO2
Cruz went to the rooftop of the house whereat the suspect was allegedly taking
refuge.

The three policemen, i.e., petitioner, Diaz and Cruz, each armed with a drawn
handgun, searched the rooftop. There, they saw a man whom they thought was the
robbery suspect. At that instance, petitioner Mamangun, who was walking ahead of
the group, fired his handgun once, hitting the man. The man turned out to be Gener
Contreras (Contreras) who was not the robbery suspect.
Contreras died from the gunshot wound. The autopsy conducted by Dr. Benito B.
Caballero yielded the following findings:
The cause of death was Shock due to massive external and internal hemorrhage due to
multiple gunshot wounds in the left arm side of the thorax, penetrating the left
lung and vertebral column. There were several wounds caused by one (1) bullet.

As shown on the sketch of human body attached to the Certificate of Death, and as
testified on by Dr. Caballero, the bullet entered through the lower third of the
left arm, left side of the thorax and it penetrated the left lung and vertebral
column and that is where the slug was found. From a laymans appreciation of the
sketch, the bullet entered the outer, upper left arm of the victim, exited through
the inner side of the said upper left arm, a little lower than the left armpit and
the slug lodging on the victims back where it was recovered at the vertebral
column.[3]

From the foregoing admitted or undisputed facts, the prosecution and the defense
presented conflicting versions as to how the fatal shooting of Contreras by
petitioner Mamangun actually happened.

According to Ayson, the lone eyewitness for the prosecution, he accompanied the
three policemen (Mamangun, Diaz and Cruz) to the rooftop of Abacans house. He was
following petitioner Mamangun who was ahead of the group. They passed through the
second-floor door of the house to the rooftop. The roof was lighted by an
incandescent bulb from an adjacent house. He was beside Mamangun when they saw,
some four to five arms-length away, a man whom he (witness) recognized as Gener
Contreras. Mamangun pointed his .45 cal. pistol at the man, who instantly
exclaimed, Hindi ako, hindi ako!, to which Mamangun replied, Anong hindi ako?
Before he (Ayson) could say anything, Mamangun fired his gun, hitting the man who
turned out to be Contreras. He (witness) approached the victim who was then lying
on his left side unconscious. He brought down the victim and they rushed him to the
hospital where he died at about 10:00 oclock that same evening.

The defense has its own account of what purportedly actually transpired.

PO2 Mamangun, along with PO2 Cruz and PO2Diaz, denied the presence of Ayson at the
rooftop during the shooting incident. Corroborating one another, the three
testified that they were the only ones at the scene of the shooting, and that it
was dark. They claimed that each of them, with Mamangun on the lead, went on
separate directions around a water tank. As they met each other at the other side
of the tank, PO2 Cruz pointed to a person crouching at the edge of the roof of the
garage. Thinking that the person was the suspect they were looking for, Mamangun
chased said person. They announced that they were police officers but the person
continued to run in a crouching position until Mamangun caught up with him and
shouted, Pulis. Tigil, whereupon the person suddenly stopped, turned around, faced
Mamangun, and raised a stainless steel pipe towards the latters head but Mamangun
was able to evade the attack. This prompted Mamangun to shoot the person on the
left arm. All three claimed that it was only at this point that PO2 Cruz and Diaz
approached Contreras who told them, Hindi ako. Hindi ako. Mamangun went near
Contreras and asked, Why did you go to the rooftop? You know there are policemen
here. Contreras was thereafter brought to the hospital where he died. After the
shooting incident, Mamangun reported the same to the desk officer, POI Filomeno de
Luna, who advised him to remain in the police station. De Luna directed Police
Investigator Hernando Banez to investigate the incident. That same evening,
Investigator Banez went to the place where the shooting happened. Banez allegedly
found a steel pipe about three (3) feet long on the depressed portion of the roof.

On January 19, 2001, after due proceedings, the Sandiganbayan came out with its
decision[4] finding the petitioner guilty beyond reasonable doubt of only the crime
of Homicide. In so finding, the Sandiganbayan did not appreciate the presence of
the aggravating circumstances of treachery, evident premeditation and abuse of
superior strength to qualify the killing to Murder. But even as the said court
rejected the petitioners claim that the shooting was justified by self-defense, it
nonetheless ruled that the crime of Homicide was attended by an incomplete
justifying circumstance of the petitioner having acted in the performance of his
duty as a policeman, and also appreciated in his favor the generic mitigating
circumstance of voluntary surrender. Dispositively, the decision reads:

WHEREFORE, the accused, RUFINO S. MAMANGUN, is hereby found GUILTY beyond

reasonable doubt of the crime of Homicide, defined and penalized under Article 249,
Revised Penal Code, and taking into account the attendance of one (1) privileged
mitigation (sic) circumstance, one generic circumstance and no aggravating
circumstance, he is hereby sentenced under the Indeterminate Sentence Law, to
suffer the penalty of imprisonment of from Three (3) Years and Three (3) Months of
prision correctional as minimum, to Seven (7) years of prision mayor, as maximum,
to indemnify the heirs (parents) of Gener Contreras in the total amount of
P352,025.00, and to past the costs.

SO ORDERED.

Unable to accept the judgment of conviction, petitioner is now with this Court via
the present recourse alleging that the Sandiganbayan committed reversible error in
failing to apply paragraph 5, Article 11, of the Revised Penal Code, which would
have absolved him from criminal liability on the basis of his submission that the
shooting in question was done in the performance of a duty or in the lawful
exercise of a right or office.

First off, petitioner insists that the shooting, which ultimately caused the demise
of Contreras, was justified because he was repelling Contreras unlawful attack on
his person, as Contreras was then about to strike him on the head with a steel
pipe.

We are not persuaded.

Well-settled is the rule that factual findings of the Sandiganbayan are conclusive
upon the Court except where: (1) the conclusion is a finding grounded entirely on
speculations, surmises and conjectures; (2) the inference made is manifestly
mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on
misapprehension of facts and the findings of fact are premised on the absence of
evidence and are contradicted by the evidence on record.[5] None of these
exceptions obtains in this case.

Having admitted[6] the fatal shooting of Contreras on the night of July 31, 1992,
petitioner is charged with the burden of adducing convincing evidence to show that
the killing was done in the fulfillment of his duty as a policeman.

The justifying circumstance of fulfillment of duty under paragraph 5, Article II,

of the Revised Penal Code may be invoked only after the defense successfully proves
that: (1) the accused acted in the performance of a duty; and (2) the injury
inflicted or offense committed is the necessary consequence of the due performance
or lawful exercise of such duty.[7]

Concededly, the first requisite is present in this case. Petitioner, a police

officer, was responding to a robbery-holdup incident. His presence at the situs of
the crime was in accordance with the performance of his duty. However, proof that
the shooting and ultimate death of Contreras was a necessary consequence of the due
performance of his duty as a policeman is essential to exempt him from criminal
liability.
As we see it, petitioners posturing that he shot Contreras because the latter tried
to strike him with a steel pipe was a mere afterthought to exempt him from criminal
liability.

We see no plausible basis to depart from the Sandiganbayans findings that there was
no reason for the petitioner to shoot Contreras. The latter was unarmed and had
already uttered, Hindi po ako, Hindi po ako before the petitioner fatally shot him
on the left arm. Prosecution witness Ayson, who was then behind the petitioner when
the latter shot Contreras, testified that to the victims utterances, the petitioner
even responded, Anong hindi ako, and immediately shot Contreras.[8] As correctly
observed by the Sandiganbayan:

Besides being self-serving (with respect to the accused) and biased (with respect
to his co-policemen-witnesses), We find (1) the claim of the accused and his co-
policemen-witnesses that the victim (Contreras) attacked the said accused and (2)
their seemingly positive identification of the stainless steel pipe (more of a rod)
as his weapon, to be of doubtful credibility, for the following reasons:

(1) We have no doubt that, as claimed by PO2 Carlito Cruz and PO2 Hobert Diaz, the
three policemen appropriately identified themselves as police officers as they
started chasing the man they saw crouching, and, as claimed by accused PO2 Rufino
Mamangun, that, as he was about to catch up with said man, he shouted, Pulis!
Tigil! With all these introductions and forewarnings, it is utterly incredible and
contrary to human experience that, that man, later identified to be Gener Contreras
and admittedly not the person they were looking for, purportedly armed only with a
stainless steel lead pipe (more of a rod) would suddenly stop, turn around and
attack one of the three policemen who were chasing him, one after the other, with
drawn guns.

(2) When the victim (Gener Contreras) fell down after being shot by accused PO2
Mamangun, and as the latter went near the fallen victim, said accused asked, Why
did you go to the rooftop. You know there are policemen here. He admits that he did
not ask the victim, Why did you try to hit me, if you are not the one? This
admission clearly belies the claim of the police-witnesses that Gener Contreras
attacked the accused policeman with an iron pipe when he was shot, for the accused
should have asked the latter question.

(3) The location of the entry of the bullet fired by accused Mamangun which is at
the outer left arm at about the bicep of the victim and its trajectory as it
penetrated his body hitting his vital organs along the way belies the claim of the
accused that the victim was facing him and had just missed his head with an iron
pipe, as instead the victim must have instinctively shielded his body with his left
arm.

Moreover, petitioners pretense that Contreras struck him with a steel pipe is
intriguing. As it is, petitioner did not report the same to Police Investigator
Banez when he reported back to the police station after the shooting incident. It
was only when a lead pipe was recovered from the scene and brought to the police
station that petitioner conveniently remembered Contreras trying to hit him with a
pipe. Such a vital information could not have escaped the petitioners mind. We are
thus inclined to believe that the alleged actuation of Contreras, which could have
justified petitioners shooting him, was nothing but a concocted story to evade
criminal liability. Indeed, knowing that he shot Contreras, the least that the
petitioner should have done was to bring with him to the police station the very
pipe with which Contreras tried to attack him. As borne by the evidence, however,
it was only after a police investigator referred to the scene that the lead pipe
surfaced.

Petitioner would likewise argue that the testimony of prosecution witness Ayson was
incredible and riddled with inconsistencies.
The alleged contradictions cited by the petitioner, i.e. where the victim was shot,
where he died, and as to whether Ayson left his house after the shooting incident,
are but minor details which do not affect Aysons credibility. We have held time and
again that few discrepancies and inconsistencies in the testimony of a witness
referring to minor details and not in actuality touching upon the central fact of
the crime, do not impair his credibility. Quite the contrary, such minor
inconsistencies even tend to strengthen credibility because they discount the
possibility that the testimony was rehearsed.[9]

For sure, the record reveals that Aysons answers to the questions propounded by the
defense counsel are clear and categorical. As to where the victim died, Ayson
clarified that the victim was already at the rooftop even before the arrival of the
police officers. As to why he was not able to warn Mamangun that the victim was his
relative, Ayson explained that he was not able to utter any word because when
Contreras said Hindi ako. Hindi ako, petitioner suddenly fired at the latter.[10]
As to the claim that Ayson was also on the roof, record shows that the robbery-
holdup happened at around 8:00 in the evening. Before the policemen arrived, Ayson
and Contreras were already pursuing the robber.[11] Ayson also testified that when
the victim was shot by the petitioner, the former fell on his left side
unconscious; that he did not leave his house after the incident because he was
afraid that the policemen would detain him.[12]
Self-defense, whether complete or incomplete, cannot be appreciated as a valid
justifying circumstance in this case. For, from the above admitted, uncontroverted
or established facts, the most important element of unlawful aggression on the part
of the victim to justify a claim of self defense was absent. Lacking this essential
and primary element of unlawful aggression, petitioners plea of self-defense,
complete or incomplete, must have to fail.

To be sure, acts in the fulfillment of a duty, without more, do not completely

justify the petitioners firing the fatal gunshot at the victim. True, petitioner,
as one of the policemen responding to a reported robbery then in progress, was
performing his duty as a police officer as well as when he was trying to effect the
arrest of the suspected robber and in the process, fatally shoot said suspect,
albeit the wrong man. However, in the absence of the equally necessary justifying
circumstance that the injury or offense committed be the necessary consequence of
the due performance of such duty, there can only be incomplete justification, a
privileged mitigating circumstance under Articles 13 and 69 of the Revised Penal
Code.

There can be no quibbling that there was no rational necessity for the killing of
Contreras. Petitioner could have first fired a warning shot before pulling the
trigger against Contreras who was one of the residents chasing the suspected
robber.

All told, we find no reversible error committed by the Sandiganbayan in convicting

the petitioner of the crime of Homicide attended by the privileged mitigating
circumstance of incomplete justifying circumstance of having acted in the
performance of his duty as a policeman and the generic mitigating circumstance of
voluntary surrender.

IN VIEW WHEREOF, the instant petition is DENIED and the assailed decision of the
Sandiganbayan is AFFIRMED in all respects.
No pronouncement as to costs.

SO ORDERED.
FIRST DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 153875

Plaintiff-Appellee,
Present:

- versus - PANGANIBAN, C.J.,

(Chairperson)
YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,

ROLANDO DAGANI y REYES CALLEJO, SR. and

CHICO-NAZARIO, JJ.
and OTELLO SANTIANO Y
LEONIDA, Promulgated:
Accused-Appellants. August 16, 2006
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - x

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

For review before the Court is the Decision dated June 20, 2002[1] of the Court of
Appeals (CA) which affirmed the Decision of the Regional Trial Court of the City of
Manila, Branch 12 (RTC), dated February 18, 1993, in Criminal Case No. 89-77467,
finding the accused-appellants Otello Santiano y Leonida (Santiano) and Rolando
Dagani y Reyes (Dagani) guilty of the crime of Murder.

The accusatory portion of the Information reads:

That on or about September 11, 1989, in the City of Manila, Philippines, the said
accused conspiring and confederating together and mutually helping each other did
then and there, willfully, unlawfully and feloniously, with intent to kill, evident
premeditation and treachery, attack, assault and use of personal violence upon one
ERNESTO JAVIER Y FELIX by then and there shooting him with a .38 caliber revolver,
thereby inflicting upon the said ERNESTO JAVIER Y FELIX mortal gunshot wounds which
were the direct and immediate cause of his death thereafter.

CONTRARY TO LAW.[2]

Upon arraignment, the appellants pleaded not guilty. Trial ensued where the
prosecution adduced evidence to establish the following:

At about 4:45 in the afternoon of September 11, 1989, a group composed of Ernesto
Javier (Javier), Lincoln Miran (Miran), and two other individuals had been drinking
at the canteen located inside the compound of the Philippine National Railways
(PNR) along C.M. Recto Avenue, Tondo, Manila. All of a sudden, appellants, who were
security officers of the PNR and covered by the Civil Service Rules and
Regulations, entered the canteen and approached the group. Appellant Dagani shoved
Miran, causing the latter to fall from his chair. Dagani then held Javier while
Santiano shot Javier twice at his left side, killing the latter.

The defense proceeded to prove their version of the facts:

Appellants testified that they were ordered by their desk officer to investigate a
commotion at the canteen. Upon reaching the place, Santiano ordered his co-accused,
Dagani, to enter, while the former waited outside.

Dagani approached Javier who had been striking a bottle of beer on the table.
Javier then pulled out a .22 caliber revolver and attempted to fire at Dagani, but
the gun failed to go off. Then suddenly, while outside the canteen, Santiano heard
gunfire and, from his vantage point, he saw Javier and Dagani grappling for a .22
caliber gun which belonged to Javier. During the course of the struggle, the gun
went off, forcing Santiano to fire a warning shot. He heard Javiers gun fire again,
so he decided to rush into the canteen. Santiano then shot Javier from a distance
of less than four meters.

Appellants invoked the justifying circumstances of self-defense and lawful

performance of official duty as PNR security officers. They also argued that the
prosecution failed to establish treachery and conspiracy.

The RTC rendered its Decision, the dispositive portion of which reads:

WHEREFORE, finding both accused Otello Santiano y Leonida and Rolando Dagani y
Reyes guilty beyond reasonable doubt of the crime of Murder defined and punished
under Art. 248, RPC, with the presence of the mitigating circumstance of voluntary
surrender and granting them the benefit of [the] Indeterminate Sentence Law, both
accused are hereby sentenced to each suffer an Indeterminate prison term of TEN
(10) YEARS and ONE (1) DAY of prision mayor as minimum, to EIGHTEEN (18) YEARS and
ONE (1) DAY of reclusion temporal x x x.

Both accused are hereby ordered to indemnify the heirs of the victim the sum of
P50,000.00 as death indemnity, the sum of P31,845.00 as funeral and burial
expenses, the sum of
P30,000.00 as and for [sic] attorneys fees and the further sum of P1,000.00 per
appearance of counsel.

Both accused shall be credited with the full extent of their preventive
imprisonment. Both accused are hereby committed to the Director, National
Penitentiary, Muntinlupa, Metro Manila for service of Sentence.
SO ORDERED.[3]

In brief, the RTC held that appellants failed to prove that Javier attempted to
squeeze the trigger of the .22 caliber gun when he pointed it at Dagani; that
during the course of the struggle for the possession of the .22 caliber gun, the
danger to the life of the accused ceased to be imminent; that in grappling for the
weapon, Dagani controlled the hands of Javier and pushed them away from his body;
that the appellants failed to produce the two empty shells as physical evidence of
the gunfire allegedly caused by Javier; that no points of entry or bullet markings
on the walls of the canteen were shown; that, in light of these findings, no
unlawful aggression was present on the part of the victim; that the appellants
failed to prove that they were on official duty at the time of the incidence; that,
since it was not established that Javier actually fired his gun, the injury
inflicted upon him cannot be regarded as a necessary consequence of the due
performance of an official duty; that the appellants were acting in conspiracy;
that the qualifying circumstance of treachery attended the killing, considering
that Javier had been shot while his hands were being held by Dagani and as his body
was out of balance and about to fall; and that the mitigating circumstance of
voluntary surrender should be appreciated in favor of the appellants.
The appellants appealed to the CA and assigned the following errors:
I

THE LOWER COURT GRAVELY ERRED IN NOT APPRECIATING SELF DEFENSE ON THE PART OF THE
ACCUSED.

II

THE LOWER COURT ERRED WHEN IT FAILED TO CONSIDER THE FACT THAT THE ACCUSED-
APPELLANTS WERE IN LAWFUL PERFORMANCE OF AN OFFICIAL DUTY.

III

THE LOWER COURT GRAVELY AND SERIOUSLY ERRED IN RULING THAT THERE WAS CONSPIRACY.

IV

THE LOWER COURT GRAVELY ERRED IN FINDING THAT THE PROSECUTION WAS ABLE TO ESTABLISH
BEYOND REASONABLE DOUBT THAT THE ACCUSED ARE GUILTY OF MURDER.[4]

The CA rendered its Decision, the dispositive portion of which states:

WHEREFORE, the appealed judgment of conviction is MODIFIED. Appellants are hereby

sentenced to reclusion perpetua. The award for attorneys fees and appearance fees
for counsel are hereby deleted. In all the other aspects, the appealed decision is
maintained.

Let the entire records of the case be elevated to the Supreme Court for the
mandated review.

SO ORDERED.[5]

The CA affirmed the findings of fact as well as the salient portions of the RTC
Decision, but deleted the award of attorneys fees and the per appearance fees of
counsel since, the

CA reasoned, the instant case is criminal in nature which is under the control of
the public prosecutor, and, additionally, the RTC failed to justify this award in
the body of its Decision. And last, the CA found that the RTC erroneously applied
the Indeterminate Sentence Law since the penalty for Murder, at the time of the
incident, was reclusion perpetua which is an indivisible penalty to be imposed in
its entirety, regardless of the attending mitigating circumstance of voluntary
surrender.

Appellants are now before this Court submitting for resolution the same matters
argued before the CA. Through their Manifestation dated February 11, 2003,[6]
appellants prayed to dispense with the filing of additional briefs.

As of date, the records show that despite the efforts exerted by the surety and the
responsible law officers to locate the appellants, the latter could not be found
and have jumped bail.[7]

The appeal is partly meritorious.

Appellants argue that the courts a quo misappreciated the facts and erred in
finding that there was no unlawful aggression on the part of the victim.They insist
that the victim, Javier, had been armed with a revolver at the time he was
struggling with appellant Dagani; that the former could have easily killed the
latter; that, given the fact that Javier had been drinking, it is quite probable
for Javier to act harshly and aggressively towards

peace officers such as the accused;[8] and that Javier actually fired three shots
from his .22 caliber gun.[9]

We are not convinced.

When self-defense is invoked, the burden of evidence shifts to the accused to show
that the killing was legally justified. Having owned the killing of the victim, the
accused should be able to prove to the satisfaction of the Court the elements of
self-defense in order to avail of this extenuating circumstance. He must discharge
this burden by clear and convincing evidence. When successful, an otherwise
felonious deed would be excused, mainly predicated on the lack of criminal intent
of the accused. Self-defense requires that there be (1) an unlawful aggression by
the person injured or killed by the offender, (2) reasonable necessity of the means
employed to prevent or repel that unlawful aggression, and (3) lack of sufficient
provocation on the part of the person defending himself. All these conditions must
concur.[10]

Unlawful aggression, a primordial element of self-defense, would presuppose an

actual, sudden and unexpected attack or imminent danger on the life and limb of a
person not a mere threatening or intimidating attitude[11] but most importantly, at
the time the defensive action was taken against the aggressor.[12] To invoke self-
defense successfully, there must have been an

unlawful and unprovoked attack that endangered the life of the accused, who was
then forced to inflict severe wounds upon the assailant by employing reasonable
means to resist the attack.[13]

In the instant case, the assertions that it was quite probable that Javier, during
the course of the struggle for the firearm, could have easily killed the appellants
are uncertain and speculative. There is aggression in contemplation of the law only
when the one attacked faces real and immediate threat to ones life. The peril
sought to be avoided must be imminent and actual, not just speculative.[14]

To sum up the matter, we quote the findings of the CA:

The defense was unable to prove that there was unlawful aggression on the part of
Javier. They were unable to present evidence that the victim actually fired his
gun. No spent shells from the .22 caliber pistol were found and no bullets were
recovered from the scene of the incident. Javier also tested negative for gunpowder
residue. Moreover, the trial court found appellant Daganis account of the incident
to be incredible and self-serving. In sum, the defense presented a bare claim of
self-defense without any proof of the existence of its requisites.[15]

Even if it were established that Javier fired his gun as the appellants so insist,
the imminence of the danger to their lives had already ceased the moment Dagani
held down the victim and grappled for the gun with the latter. After the victim had
been thrown off-balance, there was no longer any unlawful aggression

that would have necessitated the act of killing.[16] When an unlawful aggression
that has begun no longer exists, the one who resorts to self-defense has no right
to kill or even to wound the former aggressor.[17] When Javier had been caught in
the struggle for the possession of the gun with appellant Dagani, the grave peril
envisaged by appellant Santiano, which impelled him to fire at the victim, had then
ceased to a reasonable extent,[18]and undoubtedly, Santiano went beyond the call of
self-preservation when he proceeded to inflict the excessive and fatal injuries on
Javier, even when the alleged unlawful aggression had already ceased.[19]

The second element of self-defense demands that the means employed to neutralize
the unlawful aggression are reasonable and necessary. It is settled that reasonable
necessity of the means employed does not imply material commensurability between
the means of attack and defense. What the law requires is rational equivalence.[20]
The circumstances in their entirety which surround the grappling of the firearm by
Dagani and Javier, such as the nature and number of gunshot wounds sustained by the
victim[21] which amounted to two fatal wounds,[22] that Dagani was able to restrain
the handsof Javier and push

them away from his body,[23] that Dagani was larger than Javier and had finished
Special Weapons and Tactics (SWAT) hand-to-
hand combat training,[24] and Javier, as admitted by the appellants, was inebriated
at the time of the incident,[25] do not justify appellant Santianos act of fatally
shooting the victim twice.[26]
All things considered, the appellants plea of self-defense is not corroborated by
competent evidence. The plea of self-defense cannot be justifiably entertained
where it is not only uncorroborated by any separate competent evidence but is in
itself extremely doubtful.[27] Whether the accused acted in self-defense is a
question of fact. Like alibi, the affirmative defense of self-defense is inherently
weak because, as experience has demonstrated, it is easy to fabricate and difficult
to disprove.[28] This Court, therefore, finds no reversible error on the part of
the courts a quo in rejecting the claim of self-defense.

Appellants set up the defense that they were in the lawful performance of their
official duties. They specifically aver that they had been ordered by their desk
officer to proceed to the canteen in response to a telephone call stating that
there was a group creating trouble; that they were in the call of duty and
exercising their functions and responsibilities as members of the PNR Civil
Security Office to preserve peace and order and

protect the lives and property in the PNR Compound;[29] and that, invoking
jurisprudence, as security officers in the performance of duty, like the police,
they must stand their ground and overcome the opponent, and the force that may be
exerted must differ from that which ordinarily may be offered in self-defense.[30]
Article 11 of the Revised Penal Code provides that a person who acts in the
fulfillment of a duty or in the lawful exercise of a right or office does not incur
any criminal liability. Two requisites must concur before this defense can prosper:
1) the accused must have 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
should have been the necessary consequence of such lawful exercise.[31] These
requisites are absent in the instant case.

As found by the CA:

The defense failed to prove that the security officers were in fact on duty at the
time they were at the canteen. The trial court gave weight to the fact that the
appellants were unable to submit their daily time records to show that they were on
duty at the time. Appellants assertion that they were ordered to go on 24-hour duty
was belied by PNR Security Investigator Rolando Marinays testimony that PNR
security officers work in two 12-hour shifts, from 7:00 a.m. to7:00 p.m. and from
7:00 p.m. to 7:00 a.m.

Moreover, since it was not established that Javier fired his gun, the injury
inflicted upon him cannot be regarded as a necessary consequence of appellants due
performance of an official duty.[32]

As stated, considering that the imminent or actual danger to the life of the
appellants had been neutralized when Dagani grappled with Javier and restrained his
hands; that Javier had been thrown off-balance; that Dagani had been specially
trained for these purposes; and that Javier had been drinking immediately prior to
the scuffle, this Court holds that the fatal injuries that appellant Santiano
inflicted on the victim cannot be deemed to be necessary consequences of the
performance of his duty as a PNR security officer.[33] While it is recognized that
police officers if indeed the appellants can be likened to them must stand their
ground and overwhelm their opponents, in People v. Ulep,[34] this Court counseled:

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.[35]

But this Court cannot agree with the findings of the courts a quo that the
appellants were in conspiracy.

The RTC simply held:

The Information cited conspiracy of the accused. Since it can also be committed
thru simultaneous/concerted action and considering that Javier was shot by Santiano
while being held by Dagani, under jurisprudence, conspiracy is present.[36]

The tenor of the factual findings of the CA is equally unsatisfactory:

Moreover, the facts show that Javier was shot by appellant Santiano as he was being
subdued by appellant Dagani. The trial court held that the manner of the attack was
indicative of a joint purpose and design by the appellants.[37]

Courts must judge the guilt or innocence of the accused based on facts and not on
mere conjectures, presumptions, or suspicions.[38] Other than the plain fact that
the victim had been shot by one of the accused while being held by a co-accused,
there is no other evidence that the appellants were animated by the same purpose or
were moved by a previous common accord. It follows that the liability of the
accused must be determined on an individual basis. While no formal agreement is
necessary to establish conspiracy because conspiracy may be inferred from the
circumstances attending the commission of the crime, yet, conspiracy must be
established by clear and convincing evidence.[39]

This Court has held that even if all the malefactors joined in the killing, such
circumstance alone does not satisfy the requirement of conspiracybecause the rule
is that

neither joint nor simultaneous action is per se sufficient proof of conspiracy.

Conspiracy must be shown to exist
as clearly and convincingly as the commission of the offense itself.[40] Thus, even
assuming that Javier was simultaneously attacked, this does not prove conspiracy.
No evidence was presented to show that the appellants planned to kill Javier or
that Daganis overt acts facilitated that alleged plan. The prosecution did not
establish that the act of Dagani in trying to wrestle the gun from Javier and in
the process, held the latters hands, was for the purpose of enabling Santiano to
shoot at Javier. The prosecution had the burden to show Daganis intentional
participation to the furtherance of a common design and purpose[41] or that his
action was all part of a scheme to kill Javier. That Dagani did not expect Santiano
to shoot the victim is established when Santiano testified that Dagani seem[ed] to
be shocked, he was standing and looking at the victim as Javier gradually fell to
the ground.[42] And since Daganis conviction can only be sustained if the crime had
been carried out through a conspiracy duly proven, in view of the failure of the
prosecution to discharge that burden, this Court is constrained to acquit him.
And this Court cannot say that treachery attended the attack. The RTC declared:

[T]he Court believes that Javier was shot while his body was out-balanced and about
to fall to the right side and while his hands were being held by Dagani.Javier,
therefore, was shot at when he has no means to defend himself, hence, the killing
was attended by the qualifying circumstance of treachery.[43]

which the CA affirmed as follows:

The findings of the court a quo clearly showed that Javier was being held down and
could not effectively use his weapon. As such, the trial court held that Javier
could not be considered to be an armed man as he was being held down and was
virtually helpless.

It has been held that when an assault is made with a deadly weapon upon an unarmed
and unsuspecting victim who [was] given no immediate provocation for the attack and
under conditions which made it impossible for him to evade the attack, flee or make
[a] defense, the act is properly qualified as treachery, and the homicide resulting
therefrom is classified as murder.[44] x x x

Treachery under par.16 of Article 14 of the Revised Penal Code is defined as the
deliberate employment of means, methods or forms in the execution of a crime
against persons which tend directly and specially to insure its execution, without
risk to the offender arising from the defense which the intended victim might
raise. Treachery is present when two conditions concur, namely: (1) that the means,
methods and forms of execution employed gave the person attacked no opportunity to
defend himself or to retaliate; and (2) that such means, methods and forms of
execution were deliberately and consciously adopted by the accused without danger
to his person.[45]

This Court has held that the suddenness of the attack, the infliction of the wound
from behind the victim, the vulnerable position of the victim at the time the
attack was made, or the fact that the victim was unarmed, do not by themselves
render the

attack as treacherous.[46] This is of particular significance in a case of an

instantaneous attack made by the accused whereby he gained an advantageous position
over the victim when the latter accidentally fell and was rendered defenseless.[47]
The means employed for the commission of the crime or the mode of attack must be
shown to have been consciously or deliberately adopted by the accused to insure the
consummation of the crime and at the same time eliminate or reduce the risk of
retaliation from the intended victim.[48] For the rules on treachery to apply, the
sudden attack must have been preconceived by the accused, unexpected by the victim,
and without provocation on the part of the latter.[49] Treachery is never presumed.
Like the rules on conspiracy, it is required that the manner of attack must be
shown to have been attended by treachery as conclusively as the crime itself.[50]

The prosecution failed to convincingly prove that the assault by the appellants had
been deliberately adopted as a mode of attack intended to insure the killing of
Javier and without the latter having the opportunity to defend himself. Other than
the bare fact that Santiano shot Javier while the latter had been struggling with
Dagani over the possession of the .22 caliber gun, no other fact had been adduced
to show that the appellants consciously planned or predetermined the methods to
insure the commission of the crime, nor had the risk of the victim to

retaliate been eliminated during the course of the struggle over the weapon, as the
latter, though struggling, had not been
completely subdued. As already stated, this Court must emphasize that the mere
suddenness of the attack, or the vulnerable position of the victim at the time of
the attack, or yet even the fact that the victim was unarmed, do not by themselves
make the attack treacherous.[51] It must be shown beyond reasonable doubt that the
means employed gave the victim no opportunity to defend himself or retaliate, and
that such means had been deliberately or consciously adopted without danger to the
life of the accused.[52]

For these reasons, the Court is inclined to look upon the helpless position of
Javier as merely incidental to the attack, and that the decision to shoot Javier
was made in an instant.[53]

Considering the rule that treachery cannot be inferred but must be proved as fully
and convincingly as the crime itself, any doubt as to its existence must be
resolved in favor of Santiano. Accordingly, for failure of the prosecution to prove
treachery to qualify the killing to Murder, appellant Santiano may only be
convicted of Homicide.[54] The penalty, therefore, under Article 249 of the Revised
Penal Code, as amended, is reclusion temporal.

The Office of the Solicitor General is correct in that the courts a quo failed to
consider the aggravating circumstance of

taking advantage of official position under Article 14 (1) of the Revised Penal
Code, since the accused, a PNR security officer
covered by the Civil Service, committed the crime with the aid of a gun he had been
authorized to carry as such.[55] Considering that the mitigating circumstance of
voluntary surrender, as duly appreciated by the courts a quo, shall be offset
against the aggravating circumstance of taking advantage of official position, the
penalty should be imposed in its medium period, pursuant to Article 64 (4) of the
aforesaid Code.
Applying the Indeterminate Sentence Law, the sentence of appellant Santiano will
consist of a minimum that is anywhere within the full range ofprision mayor, and a
maximum which is anywhere within reclusion temporal in its medium period. This
Court hereby fixes it to be from 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.

As to the award of damages, prevailing jurisprudence entitles the heirs of the

deceased to the amount of P50,000.00 as civil indemnity for the death of the victim
without need of any evidence or proof of damages.[56]

The CA erred in deleting the attorneys fees and per appearance fees for lack of
factual basis. Although the CA is correct in noting that the RTC failed to justify
these awards in the body of its Decision, this appeal opens the entire case for
review and, accordingly, the records show that theforegoing

amounts had been stipulated by the parties,[57] thereby dispensing with the need to
prove the same.[58]
As to moral damages, however, the widow of the victim, Erlinda Javier, is not
entitled to the same. She did not testify on any mental anguish or emotional
distress which she suffered as a result of her husbands death. No other heirs of
Javier testified in the same manner.[59]

Inasmuch as the aggravating circumstance of taking advantage of official position

attended the killing, the Court awards exemplary damages in the amount of
P25,000.00 in accordance with Articles 2230 and 2234 of the Civil Code and
prevailing jurisprudence.[60]
WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 15304 dated June
20, 2002 is MODIFIED. Appellant Otello Santiano y Leonida is found GUILTY beyond
reasonable doubt of Homicide and is sentenced to suffer the penalty of an
indeterminate sentence from 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.Appellant Santiano is further ordered to pay the heirs of the
victim the amounts of P50,000.00 as death indemnity, P31,845.00 as funeral and
burial expenses, P25,000.00 as exemplary damages, P30,000.00 as attorneys fees and
P1,000.00

per appearance of counsel. Appellant Santiano shall be credited with the full
extent of his preventive imprisonment.

Appellant Rolando Dagani y Reyes is hereby ACQUITTED.

SO ORDERED.

EN BANC
G.R. No. L-4445 February 28, 1955

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MANUEL BERONILLA, FILIPINO VELASCO, POLICARPIO PACULDO, and JACINTO ADRIATICO,
defendants-appellants.

Agripino A. Brillantes, Valera, Eufemio and Bernardez for appellants.

Prospero C. Sanidad and Claro M. Recto for defendant.
Office of the Solicitor General Juan R. Liwag and Solicitor Jaime R. de los Angeles
and Martiniano P. Vivo for appellee.

REYES, J.B.L., J.:

This is an appeal by accused Manuel Beronilla, Policarpio Paculdo, Filipino

Velasco, and Jacinto Adriatico from the judgment of the Court of First Instance of
Abra (Criminal Case No. 70) convicting them of murder for the execution of Arsenio
Borjal in the evening of April 18, 1945, in the town of La Paz , Province of Abra.

Arsenio Borjal was the elected mayor of La Paz, Abra, at the outbreak of war, and
continued to serve as Mayor during the Japanese occupation, until March 10, 1943,
when he moved to Bangued because of an attempt upon his life by unknown persons. On
December 18, 1944, appellant Manuel Beronilla was appointed Military Mayor of La
Paz by Lt. Col. R. H. Arnold, regimental commander of the 15th Infantry, Philippine
Army, operating as a guerrilla unit in the province of Abra. Simultaneously with
his appointment as Military Mayor, Beronilla received copy of a memorandum issued
by Lt. Col. Arnold to all Military Mayors in Northern Luzon, authorizing them "to
appoint a jury of 12 bolomen to try persons accused of treason, espionage, or the
aiding and abetting (of ) the enemy" (Exhibit 9). He also received from the
Headquarters of the 15th Infantry a list of all puppet government officials of the
province of Abra (which included Arsenio Borjal, puppet mayor of La Paz), with a
memorandum instructing all Military Mayors to investigate said persons and gather
against them complaints from people of the municipality for collaboration with the
enemy (Exhibit 12-a).

Sometime in March, 1945, while the operations for the liberation of the province of
Abra were in progress, Arsenio Borjal returned to La Paz with his family in order
to escape the bombing of Bangued. Beronilla, pursuant to his instructions, placed
Borjal under custody and asked the residents of La Paz to file complaints against
him. In no time, charges of espionage, aiding the enemy, and abuse of authority
were filed against Borjal; a 12-man jury was appointed by Beronilla, composed of
Jesus Labuguen as chairman, and Benjamin Adriatico, Andres Afos, Juanito Casal,
Santiago Casal, Benjamin Abella, Servillano Afos, Mariano Ajel, Felimon Labuguen,
Felix Murphy, Pedro Turqueza, and Delfin Labuguen as members; while Felix Alverne
and Juan Balmaceda were named prosecutors, Policarpio Paculdo as clerk of the jury,
and Lino Inovermo as counsel for the accused. Later, Atty. Jovito Barreras
voluntarily appeared and served as counsel for Borjal. Sgt. Esteban Cabanos
observed the proceedings for several days upon instructions of Headquarters, 15th
Infantry. The trial lasted 19 days up to April 10, 1945; the jury found Borjal
guilty on all accounts and imposed upon him instruction from his superiors. Mayor
Beronilla forwarded the records of the case to the Headquarters of the 15th
Infantry for review. Said records were returned by Lt. Col. Arnold to Beronilla on
April 18, 1945 with the following instructions:

HEADQUARTERS 3RD MILITARY DISTRICT

15TH INFANTRY, USAFIP
In the Field

16 April 1945
Msg. No. 337
Subject: Arsenio Borjal, Charges Against
To: Military Mayor of La Paz, Abra.

1. Returned herewith are the papers on the case of Arsenio Borjal.

2. This is a matter best handled by your government and whatever disposition you
make of the case is hereby approved.

(Sgd.) R. H. ARNOLD
Lieut.-Colonel, 15th Inf., PA
Commanding

Received April 18, 1945, 10:35 a.m.

(Sgd.) MANUEL BERONILLA

Military Mayor, La Paz, Abra

(Exhibit 8, 8-a)

and on the night of the same day, April 18, 1945, Beronilla ordered the execution
of Borjal. Jacinto Adriatico acted as executioner and Antonio Palope as grave
digger. Father Luding of the Roman Catholic Church was asked to administer the last
confession to the prisoner, while Father Filipino Velasco of the Aglipayan Church
performed the last rites over Borjal's remains. Immediately after the execution,
Beronilla reported the matter to Col. Arnold who in reply to Beronilla's report,
sent him the following message:

HEADQUARTERS 3RD MILITARY DISTRICT

15TH INFANTRY, USAFIP
In the Field

22 April 1945

Msg. No. 398

Subject: Report and information Re Borjal case
To: Military Mayor Beronilla

1. Received your letter dated 18 April 1945, subject, above.

2. My request that you withhold action in this case was only dictated because of a
query from Higher Headquarters regarding same. Actually, I believe there was no
doubt as to the treasonable acts of the accused Arsenio Borjal and I know that your
trial was absolutely impartial and fair. Consequently, I Can only compliment you
for your impartial independent way of handling the whole case.

(Sgd.) R. H. ARNOLD
Lieut.-Colonel, 15th Inf., PA
Commanding

Received April 26, 1947 7:00 a.m.

(Sgd.) MANUEL BERONILLA

Military Mayor, La Paz, Abra

(Exhibit 21, 21-a)

Two years thereafter, Manuel Beronilla as military mayor, Policarpio Paculdo as

Clerk of the jury, Felix Alverne and Juan Balmaceda as prosecutors, Jesus Labuguen,
Delfin Labuguen, Filemon Labuguen, Servillano Afos, Andres Afos, Benjamin
Adriatico, Juanito Casel, Santiago Casel, Mariano Ajel, Felix Murphy, Benjamin
Abella, and Pedro Turqueza as members of the jury, Jacinto Adriatico as
executioner, Severo Afos as grave digger, and Father Filipino Velasco as an alleged
conspirator, were indicted in the Court of First Instance of Abra for murder, for
allegedly conspiring and confederating in the execution of Arsenio Borjal. Soon
thereafter, the late President Manuel A. Roxas issued Executive Proclamation No. 8,
granting amnesty to all persons who committed acts penalized under the Revised
Penal Code in furtherance of the resistance to the enemy against persons aiding in
the war efforts of the enemy. Defendant Jesus Labuguen, then a master sergeant in
the Philippine Army, applied for and was granted amnesty by the Amnesty Commission,
Armed Forces of the Philippines (Records, pp. 618-20). The rest of the defendant
filed their application for amnesty with the Second Guerrilla Amnesty Commission,
who denied their application on the ground that the crime had been inspired by
purely personal motives, and remanded the case to the Court of First Instance of
Abra for trial on the merits.

Upon motion of defense counsel, the case against defendant Jesus Labuguen, who had
been granted amnesty by the Amnesty Commission of the Armed Forces of the
Philippines, was ordered provisionally dismissed: defendant Juan Balmaceda was
discharged from the information so that he might be utilized as state witness,
although actually he was not called to testify; while the case against defendants
Antonio Palope (the grave digger) and Demetrio Afos( a boloman) was dismissed for
lack of sufficient evidence.

Trial proceeded against the rest of the defendants; and on July 10, 1950, the Court
below rendered judgment, acquitting the members of the jury and the grave digger
Antonio Palope on the ground that they did not participated in the killing of
Arsenio Borjal; acquitting defendants Jesus Labuguen, Felix Alverne, Severo Afos,
and Lauro Parado upon insufficiency of evidence to establish their participation in
the crime; but convicting defendants Manuel Beronilla, Policarpio Paculdo, Filipino
Velasco, and Jacinto Adriatico as conspirator and co-principals of the crime of
murder, and sentencing them to suffer imprisonment of from 17 years, 4 months and 1
day of reclusion temporal to reclusion perpetua, to indemnify the heirs of Arsenio
Borjal jointly and severally in the amount of P4,000 with subsidiary imprisonment
in case of insolvency, and each to pay one fourth of the costs. In convicting said
defendants the Court a quo found that while the crime committed by them fell within
the provisions of the Amnesty Proclamation, they were not entitled to the benefits
thereof because the crime was committed after the expiration of the time limit
fixed by the amnesty proclamation;: i.e., that the deceased Arsenio Borjal was
executed after the liberation of La Paz, Abra.

In view of the sentence meted by the Court below, the accused Beronilla, Paculdo,
Velasco and Adriatico appealed to this Court.

The records are ample to sustain the claim of the defense that the arrest,
prosecution and trial of the late Arsenio Borjal were done pursuant to express
orders of the 15th Infantry Headquarters. (Exhibit 9 and 12-a), instructing all
military mayors under its jurisdiction to gather evidence against puppet officials
and to appoint juries of at least 12 bolomen to try the accused and find them
guilty by two thirds vote. It is to be noted that Arsenio Borjal was specifically
named in the list of civilian officials to be prosecuted (Exhibit 12-b).

In truth, the prosecution does not seriously dispute that the trial and sentencing
of Borjal was done in accordance with instructions of superior military
authorities, altho it point to irregularities that were due more to ignorance of
legal processes than personal animosity against Borjal. The state, however,
predicates its case principally on the existence of the radiogram Exhibit H from
Col. Volckmann, overall area commander, to Lt. Col. Arnold, specifically calling
attention to the illegality of Borjal's conviction and sentence, and which the
prosecution claims was known to the accused Beronilla. Said message is as follows:

"Message:

VOLCKMANN TO ARNOLD CLN UNDERSTAND THAT MUNICIPALITIES OF ABRA HAVE ORGANIZED JURY
SYSTEM PD BELIEVE THAT THIS BODY IS ILLEGAL AND CANNOT TRY PUNISHMENTS THEREOF PD
SPECIFIC INSTANCE IS BROUGHT TO YOUR ATTENTION FRO PROPER AND IMMEDIATE ACTION ON
ONE ARSENIO BORJAL OF LA PAZ WHO HAS BEEN TRIED CMA CONVICTED AND SENTENCED TO BE
HANGED PD REPORT ACTION TAKEN BY YOU ON THIS MATTER PD MSG BEGINS CLN"

(EXH. H)

The crucial question thus becomes whether or not this message, originally sent to
Arnold's quarters in San Esteban, Ilocos Sur, was relayed by the latter to
appellant Beronilla in La Paz, Abra, on the morning of April 18, 1945, together
with the package of records of Borjal's trial that was admittedly returned to and
received by Beronilla on that date, after review thereof by Arnold (Exhibit 8-8-a).
Obviously, if the Volckmann message was known to Beronilla, his ordering the
execution of Borjal on the night of April 18, 1945 can not be justified.

We have carefully examined the evidence on this important issue, and find no
satisfactory proof that Beronilla did actually receive the radiogram Exhibit H or
any copy thereof. The accused roundly denied it. The messenger, or "runner", Pedro
Molina could not state what papers were enclosed in the package he delivered to
Beronilla on that morning in question, nor could Francisco Bayquen (or Bayken), who
claimed to have been present at the delivery of the message, state the contents
thereof.

The only witness who asserted that Beronilla received and read the Volckmann
message, Exhibit H, was Rafael Balmaceda, a relative of Borjal, who claimed to have
been, as Beronilla's bodyguard, present at the receipt of the message and to have
read it over Beronilla's shoulder. This testimony, however, can not be accorded
credence, for the reason that in the affidavit executed by this witness before
Fiscal Antonio of Abra (Exhibit 4), Balmaceda failed to make any mention of the
reading, or even the receipt, of the message. In the affidavit, he stated:

Q. In your capacity as policeman, do you know of any usual occurrence that

transpired in La Paz, Abra? A. Yes, sir.

Q. Will you state what is the event? A. On April 17, 1945, I was assigned as
guard at the Presidencia where Mayor Arsenio Borjal is confined. On the 18th of
April, 1945, six bolomen came to me while I was on duty as guard, that Mayor Borjal
should be tied, on orders of Mayor Beronilla, Mayor Borjal wanted to know the
reason why he would be tied, as he had not yet learned of the decision of the jury
against him. Mayor Borjal wrote a note to Mayor Beronilla, asking the reason for
his being ordered to be tied. I personally delivered the note of Borjal to Mayor
Beronilla. Mayor Beronilla did not answer the note, but instead told me that I
should tie Mayor Borjal, as tomorrow he would die, as he cannot escape. I returned
to the Presidencia, and Mayor Borjal was tied, as that was the ordered of Mayor
Beronilla.

The plain import of the affidavit is that the witness Rafael Balmaceda was not with
Beronilla when the message arrived, otherwise Beronilla would have given him his
orders direct, as he (Balmaceda) testified later at the trial. Moreover, it is
difficult to believe that having learned of the contents of the Volckmann message,
Balmaceda should not have relayed it to Borjal , or to some member of the latter's
family, considering that they were relatives. In addition to Balmaceda was
contradicted by Bayken, another prosecution witness, as to the hatching of the
alleged conspiracy to kill Borjal. Balmaceda claimed that the accused-appellants
decided to kill Borjal in the early evening of April 18, while Bayken testified
that the agreement was made about ten o'clock in the morning, shortly after the
accused had denied Borjal's petition to be allowed to hear mass.

Upon the other hand, Beronilla's conduct belies his receipt of the Volckmann
message. Had he executed Borjal in violation of superior orders, he would not have
dared to report it to Arnold's headquarters on the very same day, April 18th, 1945,
as he did (Exhibit 20), half an hour after the execution. And what is even more
important, if Borjal was executed contrary to instructions, how could Lt. Colonel
Arnold on April 21, 1945, write in reply (Exhibit 21, 21-a) "I can only compliment
you for your impartial but independent way of handling the whole case" instead of
berating Beronilla and ordering his court martial for disobedience?

Our conclusion is that Lt. Col. Arnold, for some reason that can not now be
ascertained, failed to transmit the Volckmann message to Beronilla. And this being
so, the charge of criminal conspiracy to do away with Borjal must be rejected,
because the accused had no need to conspire against a man who was, to their
knowledge, duly sentenced to death.

The state claims that the appellants held grudges against the late Borjal. Even so,
it has been already decided that the concurrence of personal hatred and
collaboration with the enemy as motives for a liquidation does not operate to
exclude the case from the benefits of the Amnesty claimed by appellants, since then
"it may not be held that the manslaughter stemmed from purely personal motives"
(People vs. Barrioquinto,* G. R. Nos. L-2011 and 2267, June 30, 1951). Actually,
the conduct of the appellants does not dispose that these appellants were impelled
by malice (dolo). The arrest and trial of Borjal were made upon express orders of
the higher command; the appellants allowed Borjal to be defended by counsel, one of
them (attorney Jovito Barreras) chosen by Borjal's sister; the trial lasted
nineteen (19) days; it was suspended when doubts arose about its legality, and it
was not resumed until headquarters (then in Langangilang, Abra) authorized its
resumption and sent an observer (Esteban Cabanos, of the S-5) to the proceedings,
and whose suggestions on procedure were followed; and when the verdict of guilty
was rendered and death sentence imposed, the records were sent to Arnold's
headquarters for review, and Borjal was not punished until the records were
returned eight days later with the statement of Arnold that "whatever disposition
you make of the case is hereby approved" (Exhibit 8), which on its face was an
assent to the verdict and the sentence. The lower Court, after finding that the
late Arsenio Borjal had really committed treasonable acts, (causing soldiers and
civilians to be tortured, and hidden American officers to be captured by the
Japanese) expressly declared that "the Court is convinced that it was not for
political or personal reason that the accused decided to kill Arsenio Borjal"
(Decision, p. 9; Record, p. 727).

It appearing that the charge is the heinous crime of murder, and that the accused-
appellants acted upon orders, of a superior officers that they, as military
subordinates, could not question, and obeyed in good faith, without being aware of
their illegality, without any fault or negligence on their part, we can not say
that criminal intent has been established (U. S. vs. Catolico, 18 Phil., 507; Peo.
vs. Pacana, 47 Phil., 48; Sent. of the Tribunal Supremo of Spain, 3 July 1886; 7
January 1901; 24 March 1900; 21 Feb. 1921; 25 March 1929). Actus non facit reum
nisi mens si rea.

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 consequence, as, in law, is equivalent to criminal intent. The maxim is,
actus non facit reum, nisi mens rea-a crime is not committed if the minds of the
person performing the act complained of be innocent. (U. S. vs. Catolico, 18 Phil.,
507).
But even assuming that the accused-appellant did commit crime with they are
charged, the Court below should not have denied their claim to the benefits of the
Guerrilla Amnesty Proclamation No. 8 (42 Off. Gaz., 2072)on the ground that the
slaying of Arsenio Borjal took place after actual liberation of the area from enemy
control and occupation. The evidence on record regarding the date of liberation of
La Paz, Abra, is contradictory. The Military Amnesty Commission that decided the
case of one of the original accused Jesus Labuguen, held that La Paz, Abra, was
liberated on July 1, 1945, according to its records; and this finding was accepted
by Judge Letargo when he dismissed the case against said accused on March 15, 1949.
On the other hand, Judge Bocar and Hilario, who subsequently took cognizance of the
case, relied on Department Order No. 25, of the Department of the Interior, dated
August 12, 1948, setting the liberation of the Province of Abra on April 4, 1945,
fifteen days before Borjal was slain. The two dates are not strictly contradictory;
but given the benefit of the Presidential directive to the Amnesty Commissions
(Adm. Order No. 11, of October 2, 1946) that "any reasonable doubt as to whether a
given case falls within the (amnesty) proclamation shall be resolved in favor of
the accused" (42 Off. Gaz., 2360), as was done in People vs. Gajo, Phil., 107 46
Off. Gaz., (No. 12) p. 6093.

For the reasons stated, the judgment appealed from is reversed and the appellants
are acquitted, with costs de oficio.
EN BANC
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.

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 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.
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 accused he 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 16th 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 manager's check for said amount in the
name of accused Luis A. Tabuena chargeable against MIAA's 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 manager's
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 xxx xxx

That on or about the 16th 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 manager.s check for said amount in the
name of accused Luis A. Tabuena chargeable against MIAA's 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 manager's
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 xxx xxx

That on or about the 29th 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 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 manager's check
for said amount in the name of accused Luis A. Tabuena chargeable against MIAA's
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 manager's 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
president's 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
Malacanang

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 MIAA's 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

The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto
Ongpin referred to in the MARCOS Memorandum, reads in full:

MEMORANDUM
For: The President

From: Minister Roberto V. Ongpin

Date: 7 January 1985

Subject: Approval of Supplemental Contracts and Request for Partial Deferment of

Repayment of PNCC's 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. Supplemental Contract No. 13

5,758,961.52

3. Supplemental Contract No. 14

Package Contract No. 2 4,586,610.80

4. Supplemental Contract No. 15

1,699,862.69

5. Supplemental Contract No. 16

Package Contract No. 2 233,561.22

6. Supplemental Contract No. 17

Package Contract No. 2 8,821,731.08

7. Supplemental Contract No. 18

Package Contract No. 2 6,110,115.75

8. Supplemental Contract No. 3

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.

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 Excellency's approval for a
deferment of the repayment of PNCC's 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 and Dabao requesting the PNB extension office
at the MIAA the depository branch of MIAA funds, to issue a manager's 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
Malacanang. 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 Tabuena's co-signatory to the letter- request for a manager's 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 Tabuena's 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:

Malacanang
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 P 25,000,000.00
Jan. 16 25,000,000.00
Jan. 30 5,000,000.00

(Sgd.) Fe Roa-Gimenez

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 MIAA's 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 by the Sandiganbayan for this Court's consideration. It
appears, however, that at the core of their plea that we acquit them are the
following:

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:

. . . accused . . . conspiring, confederating and other, then and there wilfully,

unlawfully, feloniously, and with intent to defraud the government, take and
misappropriated the amount of . . . .

But it would appear that they were convicted of malversation by negligence. In this
connection, the Court's attention is directed to p. 17 of the December 20, 1991
Resolution (denying Tabuena's and Peralta's motion for reconsideration) wherein the
Sandiganbayan said:

xxx 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. (Emphasis
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. Sandiganbayan" 9 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:

. . . 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. . . .

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 xxx 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. . . .

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.

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 significantmalversation cases of
"US v. Catolico" 10 and "US v. Elvina," 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 rea a 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 introduce 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 Tabuena's superior the
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 Tabuena's 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 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 PNCC's
escalation billings which would result in making payable to PNCC the amount of
P34.5 million out of existing MIAA Project funds.

Thus:

"xxx xxx xxx

To allow PNCC to collect partially its billings, and in consideration of ifs

pending escalation billings, may we request for His Excellency's approval for a
deferment of repayment of PNCC's advances to the extent of P30 million
corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which
P32.6 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."

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

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", "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. Ongpin's Memo
of January 7, 1985 could not therefore serve as a basis for the President's order
to withdraw P55 million. 18

Granting this to be true, it will not nevertheless affect Tabuena's goad 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 xxx 19

ATTY. ANDRES

Q Can you tell us, Mr. Witness, what these obligations represent?

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 xxx 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. People"23 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

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 President's Office the P55 Million in
cash. Be that as it may, Tabuena surely cannot escape responsibility for such
omission. 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. People"26 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 auditor's and the provincial treasurer's 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. Elvina" 27 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 Opinion's
reference to certain provisions in the revised Manual on Certificate of Settlement
and Balances apparently made to underscore Tabuena's personal accountability, as
agency head, for MIAA funds would all the more support the view that Tabuena is
vulnerable to civil sanctions only Sections 29.2 and 295 expressly and solely speak
of "civilly liable," 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 acts . . . 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 PNCC, proceeding from the following definitions/concepts of "conversion":

"Conversion", as necessary element of offense of embezzlement, being the fraudulent

"appropriation to one's own use' of another's property which does not necessarily
mean to one's 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
owner 's 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

another's property as if it were one's own. They presuppose that the thing has been
devoted to a purpose or use different from that agreed upon. To appropriate to
one's own use includes not only conversion to one's 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, 1183 28

We do not agree. 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
President's 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 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 P5
Million. In the cases of "US v. Acebedo"30 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 Acebedo's 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 Court's observation
therein, that:

The petitioner's 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 suspect
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 accused's basic constitutional right to due process. "Respect for
the Constitution", to borrow once again Mr. Justice Cruz's 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 Tabuena's turn on the
witness stand. Questions from the court after Tabuena's 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 Peralta's 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 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 don't 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 don't 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.

*AJ AMORES

*Q Were there partial payments made by MIA an 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.

*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 case 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.

*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 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 hat 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?

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.

*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 account 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.

PJ GARCHITORENA

The witness is excused. Thank you very much Mr. Monera. . . .41

(TABUENA)

(In his direct examination, he testified
checks totalling P55 Million pursuant to
thereafter delivered said amount in cash
information to Marcos' private secretary
Street, who thereafter issued a receipt.
for his own personal use.)
that he caused the preparation of the
the MARCOS Memorandum and that he
on the three (3) dates as alleged in the
Mrs. Jimenez at her office at Aguado
Tabuena also denied having used the money

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.

*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"?

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.

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

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

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY. ANDRES

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*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 President's 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?

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

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 maitter 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 MIAA's 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.

*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 Malacanang 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?

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.

*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 Came 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.

*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 Manager's checks and you were accommodated
by the PNB Office at Nichols without any internal documentation to justify your
request for Manager's 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 recall that?

A Yes, your Honor.

*PJ GARCHITORENA

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 day 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 your car?

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. . . . 42

(PERALTA)

(He testified on direct examination that he co-signed with Tabuena a memorandum

request for the issuance of the Manager's 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 Manager's 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 Manager's checks by the PNB?

A That is the only occasion I signed, sir.

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 Manager's 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?
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.

PROS VIERNES

Q In how many boxes were those bills placed?

A The P5 million were placed in two (2) peerless boxes,

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 o'clock 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 o'clock 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 o'clock 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 Malacanang.

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 over-stayed 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 o'clock in the afternoon, you still
went back to your office at MIA?

A Yes, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY. ESTEBAL

No redirect, your Honor.

*PJ GARCHITORENA
Questions from the Court.

*AJ DEL ROSARIO

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

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 prepare 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

Manager's 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?

A Your Honor, a Journal Voucher was prepared for that.

*Q How about a disbursement voucher?

A Inasmuch as this was a request for Manager's check, no disbursement voucher

was prepared, your Honor.

*AJ DEL ROSARIO

*Q Since the payment was made on January 31, I986, 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 don't 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 Manager's 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.

*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 tire 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 earlier 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 Manager 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, inasmuch 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 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 ate 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 as 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.

*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 the 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 a co-signatory, you expected to exercise your judgment as to

the propriety of a particular transactions?

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.

*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. . . . 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 latter's
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 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 judge's
questions to the defendant De Sisto totalled 306, the prosecutor's 347, and the
defense counsel's, 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 defendant's 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 court's belief in the
defendant's probable guilt to permit the jury freely to perform its own function of
independent determination of the facts. . . .

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 non-jury 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 President's
Office thru Mrs. Gimenez, in obedience to the Presidential directive. One
Sandiganbayan Justice, however, hurled the following questions to Peralta:

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 don't 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 President's 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?
x x x x x x x x x

*Q In other words, really what you are telling us is that, a Journal Voucher is
to explain a transaction was otherwise not recorded.

x x x x x x x x x

*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?

x x x x x x x x x

*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 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?

*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 xxx 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 as 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 in 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?

*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 Opinion's focus on the
distinction between the two kinds of trial to justify the Sandiganbayan's 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 defendant
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

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 judge his 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 people's 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 evidence 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 petitioner's 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., cocnur.

Regalado, Bellosillo, and Torres, Jr., JJ., pro hac vice.

Hermosisima, Jr,., J., took no part.

Separate Opinions

DAVIDE, JR., J., dissenting:

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 Development 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 Court a day of mourning for
those who fought against the dictatorship and of triumph and joy for the dictator's
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 shall first take up the third.

The ponencia admits that the appellants did not raise as an issue the
Sandiganbayan's 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 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. Hudieres5 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 entirely
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 they find nothing therein to prejudice their right to
due process is best proven 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:

. . . the doctrine of waiver extends to rights and privileges of any character,

and, since the word "waiver" covers 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. . . .

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.

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:

. . . 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 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 MIAA's 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

T o t a l 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 Excellency's approval for a
deferment of the repayment of PNCC's 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 fundings.

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.

If Ongpin's memorandum is given full faith, it is clear that PNCC's "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 Ongpin's request "for
a deferment of the repayment of PNCC's advances to the extent of P30 million," only
P63.9 million of PNCC's 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 Ongpin's
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.

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 PNCC's advances in
the amount of P63.9 million, the MIAA's 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 latter's
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.

What happened in this case showed the appellants' complicity as principals by

direct participation in the malversation of the MIAA's 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.

Padilla, Melo and Panganiban, JJ., concur.

ROMERO, J., dissenting:

Obedience, rightly directed, is a virtue well-worth cultivating obedience of

children to their elders; obedience to lawful authority by citizens; obedience to
the behests of what is highest and finest in one's 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 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 MIAA's
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 P25 million, then on
January 16, 1986 for another P25 million and lastly, on January 31, 1986 for P5
million. The three manager's 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.

On October 22, 1990, the Sandiganbayan's 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 MIAA's 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.

It must be stressed that Tabuena and his co-accused, Peralta and Dabao, disregarded
standard operating procedures in following the President's 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
another all 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
requirements 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 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 President's
order, undeniably, they were negligent as found by the trial court. The
instructions in the President's order should have sufficed to put any accountable
head of an office, Tabuena included, on guard. Why was he being required to pay
MIAA's 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? 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 superior's 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, PNCC's 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 President's approval of Minister
Ongpin's 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 billings
on the MIADP totalling P98.4 million and PNCC's 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 MIAA's 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 MIAA's 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 President's orders because of the reasons aforesatated, summarized as follows:

(a) The President's 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 MIAA's 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 President's 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.

(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 COA's
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 PNCC's 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
President's private secretary, the latter being a third person who had no interest
whatsoever in the discharge of MIAA's 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:

. . .(T)he Ongpin Memorandum could not justify Pres. Marcos' memorandum of January
8, 1986; this in turn could not justify Luis Tabuena's 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 million until 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 MIAA's 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. Tabuena's 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 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 Tabuena's 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

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:

Sec. 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.

Sec. 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.

Sec. 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 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. . . .

Sec. 29. LIABILITY OF ACCOUNTABLE, SUPERIOR AND SUBORDINATE OFFICERS FOR

GOVERNMENT FUNDS

29.1 Every officer accountable for government funds shall be liable for alllosses
resulting from the unlawful deposit, use, or application thereof and for all losses
attributable to negligence in the keeping of the funds.

29.2 Liability 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

29.5 Liability 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.

Sec. 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. (Emphasis 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 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 futher 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 latter's secretary who collected and converted the money.
Tabuena's case is starkly different, for here it was Tabuena himself who personally
turned over the money to the President's secretary. It was done with his full
knowledge and consent, the obvious irregularity thereof notwithstanding.

In petitioner Peralta's 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 Manager's Check drawn against the MIAA's 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 Manager's
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 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 manager's
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 manager's check which he signed, two previous
manager's 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 manager's 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 explicitly states that
"felonies are committed not only by means of deceit but also by means of fault."

The Sandiganbayan's 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 MIAA's 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 President's private secretary to take
custody of public funds intended as payment of MIAA's 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.

As accountable officers, petitioners clearly transgressed administrative and legal

bounds. Even on the pretext of obeying a superior's 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 people's 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
Malacanang on November 24, 1996:

xxx xxx xxx

When they begin to think of how much power they possess, help them to know the many
things that are beyond their power the 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;

x x x x x x 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 Peralta more 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 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 court's 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 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
court's 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 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.

Padilla, Melo and Panganiban, JJ., concur.

PUNO, J., dissenting:

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: ". .
. 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 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 ". . . Tabuena acted under
the honest belief that the P55 million was a due and demandable debt. . . ." 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 charge (e.g., in larceny animus furendi,
in murder, malice, etc.), cancels the presumption of intent and works an acquittal,
except in those cases where the circumstances demand 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."

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 ". . . 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 President's 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. . . .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
tranches the 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 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 againsts 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

xxx xxx xxx

AJ del Rosario

xxx xxx xxx

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, 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.

xxx xxx xxx

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 Malacanang?

A I was just basing it from the Order of the Malacanang to pay PNCC through the
Office of the President, your Honor.

xxx xxx xxx

Q You agreed to the order of the President notwithstanding the fact that this
was not the regular course or Malacanang 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.

Padilla, Melo and Panganiban, JJ., concur.

PANGANIBAN, J., dissenting:

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 MIAA's 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 superior's 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 dated October 1, 1946,1 forcefully debunked
this Nazi argument and clearly ruled that "(t)he true test . . . 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 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 discredited 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 Court's 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
Court's 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.

I therefore vote to AFFIRM the assailed Sandiganbayan Decision onvicting the

petitioners of malversation.
Padilla, Melo and Panganiban, JJ., concur.

Separate Opinions

DAVIDE, JR., J., dissenting:

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 Development 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 Court a day of mourning for
those who fought against the dictatorship and of triumph and joy for the dictator's
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
Sandiganbayan's 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 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. Hudieres5 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 entirely
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 they find nothing therein to prejudice their right to
due process is best proven 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:

. . . the doctrine of waiver extends to rights and privileges of any character,

and, since the word "waiver" covers 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. . . .

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.

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:

. . . 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 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 MIAA's 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

T o t a l 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 Excellency's approval for a
deferment of the repayment of PNCC's 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 fundings.
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.

If Ongpin's memorandum is given full faith, it is clear that PNCC's "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 Ongpin's request "for
a deferment of the repayment of PNCC's advances to the extent of P30 million," only
P63.9 million of PNCC's 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 Ongpin's
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.

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 PNCC's advances in
the amount of P63.9 million, the MIAA's 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 latter's
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.

What happened in this case showed the appellants' complicity as principals by

direct participation in the malversation of the MIAA's 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.

Padilla, Melo and Panganiban, JJ., concur.

ROMERO, J., dissenting:

Obedience, rightly directed, is a virtue well-worth cultivating obedience of

children to their elders; obedience to lawful authority by citizens; obedience to
the behests of what is highest and finest in one's 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 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 MIAA's
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 P25 million, then on
January 16, 1986 for another P25 million and lastly, on January 31, 1986 for P5
million. The three manager's 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.

On October 22, 1990, the Sandiganbayan's 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 MIAA's 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.

It must be stressed that Tabuena and his co-accused, Peralta and Dabao, disregarded
standard operating procedures in following the President's 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
another all 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
requirements 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 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 President's
order, undeniably, they were negligent as found by the trial court. The
instructions in the President's order should have sufficed to put any accountable
head of an office, Tabuena included, on guard. Why was he being required to pay
MIAA's 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? 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 superior's 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, PNCC's 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 President's approval of Minister
Ongpin's 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 billings
on the MIADP totalling P98.4 million and PNCC's 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 MIAA's 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 MIAA's 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 President's orders because of the reasons aforesatated, summarized as follows:

(a) The President's 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 MIAA's 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 President's 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.
(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 COA's
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 PNCC's 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
President's private secretary, the latter being a third person who had no interest
whatsoever in the discharge of MIAA's 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:

. . .(T)he Ongpin Memorandum could not justify Pres. Marcos' memorandum of January
8, 1986; this in turn could not justify Luis Tabuena's 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 million until 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 MIAA's 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. Tabuena's 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 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 Tabuena's 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

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:
Sec. 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.

Sec. 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.

Sec. 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 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. . . .

Sec. 29. LIABILITY OF ACCOUNTABLE, SUPERIOR AND SUBORDINATE OFFICERS FOR

GOVERNMENT FUNDS

29.1 Every officer accountable for government funds shall be liable for alllosses
resulting from the unlawful deposit, use, or application thereof and for all losses
attributable to negligence in the keeping of the funds.

29.2 Liability 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

29.5 Liability 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.

Sec. 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. (Emphasis 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 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 futher 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 latter's secretary who collected and converted the money.
Tabuena's case is starkly different, for here it was Tabuena himself who personally
turned over the money to the President's secretary. It was done with his full
knowledge and consent, the obvious irregularity thereof notwithstanding.

In petitioner Peralta's 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 Manager's Check drawn against the MIAA's 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 Manager's
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 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 manager's
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 manager's check which he signed, two previous
manager's 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 manager's 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 explicitly states that
"felonies are committed not only by means of deceit but also by means of fault."

The Sandiganbayan's 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 MIAA's 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 President's private secretary to take
custody of public funds intended as payment of MIAA's 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.

As accountable officers, petitioners clearly transgressed administrative and legal

bounds. Even on the pretext of obeying a superior's 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 people's 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
Malacanang on November 24, 1996:

xxx xxx xxx

When they begin to think of how much power they possess, help them to know the many
things that are beyond their power the 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;

x x x x x x 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 Peralta more 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 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 court's 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 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
court's 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 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.

Padilla, Melo and Panganiban, JJ., concur.

PUNO, J., dissenting:

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.

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: ". .
. 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 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 ". . . Tabuena acted under
the honest belief that the P55 million was a due and demandable debt. . . ." 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 charge (e.g., in larceny animus furendi,
in murder, malice, etc.), cancels the presumption of intent and works an acquittal,
except in those cases where the circumstances demand 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."

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 ". . . 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 President's 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. . . .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
tranches the 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 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 againsts 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

xxx xxx xxx

AJ del Rosario

xxx xxx xxx

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, 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.

xxx xxx xxx

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 Malacanang?

A I was just basing it from the Order of the Malacanang to pay PNCC through the
Office of the President, your Honor.

xxx xxx xxx

Q You agreed to the order of the President notwithstanding the fact that this
was not the regular course or Malacanang 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.

Padilla, Melo and Panganiban, JJ., concur.

PANGANIBAN, J., dissenting:

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 MIAA's 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 superior's 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 dated October 1, 1946,1 forcefully debunked
this Nazi argument and clearly ruled that "(t)he true test . . . 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 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 discredited 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 Court's 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
Court's 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.

I therefore vote to AFFIRM the assailed Sandiganbayan Decision onvicting the

petitioners of malversation.

Padilla, Melo and Panganiban, JJ., concur.

EN BANC G.R. No. L-37673 March 31, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
POTENCIANO TANEO, defendant-appellant.

Carlos S. Tan for appellant.

Attorney-General Jaranilla for appellee.

AVANCEA, C.J.:

Potenciano Tadeo live with his wife in his parent's house of the barrio of Dolores,
municipality of Ormoc, Leyte. On January 16, 1932, a fiesta was being celebrated in
the said barrio and visitors were entertained in the house. Among them were Fred
Tanner and Luis Malinao. Early that afternoon, Potenciano Taneo, went to sleep and
while sleeping, he suddenly got up, left the room bolo in hand and, upon meeting
his wife who tried to stop him, he wounded her in the abdomen. Potenciano Taneo
attacked Fred Tanner and Luis Malinao and tried to attack his father after which he
wounded himself. Potenciano's wife who was then seven months pregnant, died five
days later as a result of her wound, and also the foetus which was asphyxiated in
the mother's womb.

An information for parricide was filed against Potenciano Taneo, and upon
conviction he was sentenced by the trial court to reclusion perpetua with the
accessory penalties, to indemnity the heirs of the deceased in the sum of P500 and
to pay the costs. From this sentence, the defendant appealed.

It appears from the evidence that the day before the commission of the crime the
defendant had a quarrel over a glass of "tuba" with Enrique Collantes and Valentin
Abadilla, who invited him to come down to fight, and when he was about to go down,
he was stopped by his wife and his mother. On the day of the commission of the
crime, it was noted that the defendant was sad and weak, and early in the afternoon
he had a severe stomachache which made it necessary for him to go to bed. It was
then when he fell asleep. The defendant states that when he fell asleep, he dreamed
that Collantes was trying to stab him with a bolo while Abadilla held his feet, by
reason of which he got up; and as it seemed to him that his enemies were inviting
him to come down, he armed himself with a bolo and left the room. At the door, he
met his wife who seemed to say to him that she was wounded. Then he fancied seeing
his wife really wounded and in desperation wounded himself. As his enemies seemed
to multiply around him, he attacked everybody that came his way.

The evidence shows that the defendant not only did not have any trouble with his
wife, but that he loved her dearly. Neither did he have any dispute with Tanner and
Malinao, or have any motive for assaulting them.

Our conclusion is that the defendant acted while in a dream and his acts, with
which he is charged, were not voluntary in the sense of entailing criminal
liability.

In arriving at this conclusion, we are taking into consideration the fact that the
apparent lack of a motive for committing a criminal act does not necessarily mean
that there are none, but that simply they are not known to us, for we cannot probe
into depths of one's conscience where they may be found, hidden away and
inaccessible to our observation. We are also conscious of the fact that an extreme
moral perversion may lead a man commit a crime without a real motive but just for
the sake of committing it. But under the special circumstances of the case, in
which the victim was the defendant's own wife whom he dearly loved, and taking into
consideration the fact that the defendant tried to attack also his father, in whose
house and under whose protection he lived, besides attacking Tanner and Malinao,
his guests, whom he himself invited as may be inferred from the evidence presented,
we find not only a lack of motives for the defendant to voluntarily commit the acts
complained of, but also motives for not committing said acts.

Doctor Serafica, an expert witness in this case, is also of the same opinion. The
doctor stated that considering the circumstances of the case, the defendant acted
while in a dream, under the influence of an hallucination and not in his right
mind.

We have thus far regarded the case upon the supposition that the wound of the
deceased was direct result of the defendant's act performed in order to inflict it.
Nevertheless we may say further that the evidence does not clearly show this to
have been the case, but that it may have been caused accidentally. Nobody saw how
the wound was inflicted. The defendant did not testify that he wounded his wife. He
only seemed to have heard her say that she was wounded. What the evidence shows is
that the deceased, who was in the sala, intercepted the defendant at the door of
the room as he was coming out. The defendant did not dream that he was assaulting
his wife but he was defending himself from his enemies. And so, believing that his
wife was really wounded, in desperation, he stabbed himself.

In view of all these considerations, and reserving the judgment appealed from, the
courts finds that the defendant is not criminally liable for the offense with which
he is charged, and it is ordered that he be confined in the Government insane
asylum, whence he shall not be released until the director thereof finds that his
liberty would no longer constitute a menace, with costs de oficio. So ordered.

Street, Ostrand, Abad Santos, and Butte, JJ., concur.

EN BANC

G.R. No. L-45130 February 17, 1937

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CELESTINO BONOAN Y CRUZ, defendant-appellant.

Paulino Sevilla, Fernando Arce and Gaudencio Garcia for appellant.

Undersecretary of Justice for appellee.

LAUREL, J.:

On January 5, 1935, the prosecuting attorney of the City of Manila filed an

information charging Celestino Bonoan, the defendant-appellant herein, with the
crime of murder, committed as follows:

That on or about the 12th day of December, 1934, in the City of Manila, Philippine
Islands, the said accused, with evident premeditation and treachery, did then and
there willfully, unlawfully and feloniously, without any justifiable motive and
with the decided purpose to kill one Carlos Guison, attack, assault and stab the
said Carlos Guison on the different parts of his body with a knife, thereby
inflicting upon him the following injuries, to wit:

"One stab wound at the right epigastric region penetrating one cm. into the
superior surace of the right lobe of the liver; and three non-penetrating stab
wounds located respectively at the posterior and lateral lumbar region, and left
elbow", which directly caused the death of the said Carlos Guison three days
afterwards.

On January 16, 1935, the case was called for the arraignment of the accused. The
defense counsel forthwith objected to the arraignment on the ground that the
defendant was mentally deranged and was at the time confined in the Psychopatic
Hospital. The court thereupon issued an order requiring the Director of the
Hospital to render a report on the mental condition of the accused. Accordingly,
Dr. Toribio Joson, assistant alientist, rendered his report,Exhibit 4, hereinbelow
incorporated. On March 23, 1935, the case was again called for the arraignment of
the accused, but in view of the objection of the fiscal, the court issued another
order requiring the doctor of the Psyhopatic Hospital who examined the defendant to
appear and produce the complete record pertaining to the mental condition of the
said defendant. Pursuant to this order, Dr. Toribio Joson appeared before the court
on March 26, 1935 for the necessary inquiry. Thereafter, the prosecution and the
defense asked the court to summon the other doctors of the hospital for questioning
as to the mental condition of the accused, or to place the latter under a competent
doctor for a closer observation. The trial court then issued an order directing
that the accused be placed under the chief alienist or an assistant alienist of the
Psychopatic Hospital for his personal observation and the subsequent submission of
a report as to the true mental condition of the patient. Dr. Jose A. Fernandez,
assistant alienist of the Psychopathic Hospital, rendered his report, Exhibit 5, on
June 11, 1935. On June 28, 1935, the case was called again. Dr. Fernandez appeared
before the court and ratified his report, Exhibit 5, stating that the accused was
not in a condition to defend himself. In view thereof, the case was suspended
indefinitely.

On January 21, 1936, Dr. Dr. Fernandez reported to the court that the defendant
could be discharged from the hospital and appear for trial, as he was "considered a
recovered case." Summoned by the court, Dr. Fernandez, appeared and testified that
the accused "had recovered from the disease." On February 27, 1936, the accused was
arraigned, pleaded "not guilty" and trial was had.

After trial, the lower court found the defendant guilty of the offense charged in
the information above-quoted and sentenced him to life imprisonment, to indemnify
the heirs of the deceased in the sum of P1,000, and to pay the costs.

The defendant now appeals to this court and his counsel makes the following
assignment of errors:

A. The court a quo erred in finding that the evidence establishes that the accused
has had dementia only occasionally and intermittently and has not had it
immediately prior to the commission of the defense.

B. The court a quo erred in finding that the evidence in this case further shows
that during and immediately after the commission of the offense, the accused did
not show any kind of abnormality either in behavior, language and appearance, or
any kind of action showing that he was mentally deranged.

C. The court a quo erred in declaring that under the circumstances that burden was
on the defense to show hat the accused was mentally deranged at the time of the
commission of the offense, and that the defense did not establish any evidence to
this effect.

D. The court a quo in finding the accused guilty of the offense charged and in not
acquitting him thereof.

It appears that in the morning of December 12, 1934, the defendant Celestino Bonoan
met the now deceased Carlos Guison on Avenida Rizal near a barbershop close to
Tom's Dixie Kitchen. Francisco Beech, who was at the time in the barbershop, heard
the defendant say in Tagalog, "I will kill you." Beech turned around and saw the
accused withdrawing his right hand, which held a knife, from the side of Guison who
said, also in Tagalog, "I will pay you", but Bonoan replied saying that he would
kill him and then stabbed Guison thrice on the left side. The assaultt was
witnessed by policeman Damaso Arnoco who rushed to the scene and arrested Bonoan
and took possession of the knife, Exhibit A. Guison was taken to the Philippine
General Hospital where he died two days later. Exhibit C is the report of the
autopsy performed on December 15, 1934, by Dr. Sixto de los Angeles.

As the killing of the deceased by the defendant-appellant is admitted, it does not

seem necessary to indulge in any extended analysis of the testimony of the
witnesses for the prosecution. The defense set up being that of insanity, the only
question to be determined in this appeal is whether or not the defendant-appellant
was insane at the time of the commission of the crime charged.

On the question of insanity as a defense in criminal cases, and the incidental

corollaries as to the legal presumption and the kind and quantum of evidence
required, theories abound and authorities are in sharp conflict. Stated generally,
courts in the United States proceed upon three different theories. (See Herzog,
Alfred W., Medical Jurisprudence [1931], sec. 655 et seq., p. 479 et seq.; also
Lawson, Insanity in Criminal Cases, p. 11 et seq.) The first view is that insanity
as a defense in a confession and avoidance and as must be proved beyond reasonable
doubt when the commission of a crime is established, and the defense of insanity is
not made out beyond a reasonable doubt, conviction follows. In other words, proof
of insanity at the time of committing the criminal act should be clear and
satisfactory in order to acquit the accused on the ground of insanity (Hornblower,
C. J., in State vs. Spencer, 21 N. J. L., 196). The second view is that an
affirmative verdict of insanity is to be governed by a preponderance of evidence,
and in this view, insanity is not to be established beyond a reasonable doubt.
According to Wharton in his "Criminal Evidence" (10th ed.,vol. I, sec. 338), this
is the rule in England (Reg. vs. Layton, 4 Cox, C. C., 149; Reg. vs. Higginson, 1
Car. & K., 130), and in Alabama, Arkansas, California, Georgia, Idaho, Iowa,
Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Nevada,
New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Texas,
Virginia and West Virginia. The third view is that the prosecution must prove
sanity beyond a reasonable doubt (Dais vs. United States, 160 U. S. 496; 40 Law.
ed., 499; 16 Sup. Ct. Rep., 353; Hotema vs. United States, 186 U. S., 413; 46 Law.
ed., 1225; 22 Sup. Ct. Rep., 895; United States vs. Lancaster, 7 Biss., 440; Fed.
Cas. No. 15,555; United States vs. Faulkner, 35 Fed., 730). This liberal view is
premised on the proposition that while it is true that the presumption of sanity
exists at the outset, the prosecution affirms every essential ingredients of the
crime charged, and hence affirms sanity as one essential ingredients, and that a
fortiori where the accused introduces evidence to prove insanity it becomes the
duty of the State to prove the sanity of the accused beyond a reasonable doubt.

In the Philippines, we have approximated the first and stricter view (People vs.
Bacos [1922], 44 Phil., 204). The burden, to be sure, is on the prosecution to
prove beyond a reasonable doubt that the defendant committed the crime, but
insanity is presumed, and ". . . when a defendant in a criminal case interposes the
defense of mental incapacity, the burden of establishing that fact rests upon
him. . . ." (U. S. vs. Martinez [1916], 34 Phil., 305, 308, 309; U. S. vs. Bascos,
supra.) We affirm and reiterate this doctrine.

In the case at bar, the defense interposed being that the defendant was insane at
the time he killed the deceased, the obligation of proving that affirmative
allegation rests on the defense. Without indulging in fine distinctions as to the
character and degree of evidence that must be presented sufficiently convincing
evidence, direct or circumstantial, to a degree that satisfies the judicial mind
that the accused was insane at the time of the perpetration of the offense? In
order to ascertain a person's mental condition at the time of the act, it is
permissible to receive evidence of the condition of his mind a reasonable period
both before and after that time. Direct testimony is not required (Wharton,
Criminal Evidence, p. 684; State vs. Wright, 134 Mo., 404; 35 S. W., 1145; State
vs. Simms, 68 Mo., 305; Rinkard vs. State, 157 Ind., 534; 62 N. E., 14; People vs.
Tripler, I Wheeler, Crim. Cas., 48), nor are specific acts of derangement essential
(People vs. Tripler, supra) to established insanity as a defense. Mind can only be
known by outward acts. Thereby, we read the thoughts, the motives and emotions of a
person and come to determine whether his acts conform to the practice of people of
sound mind. To prove insanity, therefore, cicumstantial evidence, if clear and
convincing, suffice (People vs. Bascos [1922], 44 Phil., 204).

The trial judge arrived at the conclusion that the defendantwas not insane at the
time of the commission of the act for which he was prosecuted on the theory that
the insanity was only occassional or intermittent and not permanentor continuous
(32 C. J., sec. 561, p. 757). We are appraised of the danger of indulging in the
preseumption ofcontinuity in cases of temporary or spasmodic insanity.We appreciate
the reason forthe contrary rule. To be sure, courts should be careful to
distinguish insanity in law from passion or eccentricity, mental weakness or mere
depression resulting from physical ailment. The State should guard against sane
murderers escaping punishment through a general plea of insanity. In the case at
bar, however, we are not cconcerned with connecting two or more attacks of insanity
to show the continuance thereof during the intervening period or periods but with
the continuity of a particular and isolated attack prior to the commission of the
crime charged, and ending with a positive diagnosis of insanity immediately
following the commission of the act complained of. Upon the other hand, there are
facts and circumstances of record which can not be overlooked.The following
considerations have weighed heavily upon the minds of the majority of this court in
arriving at a conclusion different from that reached by the court below:.

(a) From the evidence presented by the defense, uncontradicted by the prosecution,
it appears that the herein defendant-appellant, during the periods from April 11 to
April 26, 1922, and from January 6 to January 10, 1926, was confined in the insane
department of the San Lazaro Hospital suffering from a disease diagnosed as
dementia prcox. His confinement during these periods, it is true, was long before
the commission of the offense on December 12, 1934, but this is a circumstance
which tends to show that the recurrence of the ailment at the time of the occurence
of the crime is not entirely lacking of any rational or scientific foundation.

(b) All persons suffering from dementia prcox are clearly to be regarded as having
mental disease to a degree that disqualifies them for legal responsibility for
their actions (Mental Disorder in Medico-Legal Relations by Dr. Albert M. Barrett
in Peterson, Haines and Webster, Legal Medicine and Toxology, vol. I, p. 613).
According to Dr. Elias Domingo, chief alienist of the Insular Psychopathic
Hospital, the symptoms of dementia prcox, in certain peeriods of excitement, are
similar to those of manic depresive psychosis (p. 19, t. s. n.) and, in either
case, the mind appears "deteriorated" because, "when a person becomes affected by
this kind of disease, either dementia prcox or manic depresive psychosis, during
the period of excitement, he has no control whatever of his acts." (P. 21, t. s.
n.) Even if viewed under the general medico-legal classification of manic-
depressive insanity, "it is largely in relation with the question of irrestible
impulse that forensic relations of manic actions will have to be considered. There
is in this disorder a pathologic lessening or normal inhibitions and the case with
which impulses may lead to actions impairs deliberations and the use of normal
checks to motor impulses" (Peterson, Haines and Webster, Legal Medicine and
Toxology [2d ed., 1926], vol, I, p. 617).

(c) According to the uncontradicted testimony of Dr. Celedonio S. Francisco, at one

time an interne at San LazaroHospital, for four (4) days immediately preceding
December 12, 1934 the date when the crime was committed the defendant and
appellant had "an attack of insomnia", which is one of the symptoms of, and may
lead to, dementia prcox (Exhibit 3, defense testimony of Dr. Celedonio S.
Francisco, pp. 13, 14, t. s. n.).

(d) The defendant-appellant appears to have been arrested and taken to the police
station on the very same day of the perpetration of the crime, and although
attempted were made by detectives to secure a statement from him (see Exhibit B and
D and testimony of Charles Strabel, t. s. n. pp. 9, 10) he was sent by the police
department to the Psychopathic Hospital the day following the commission of the
crime. This is an indication that the police authorities themselves doubted the
mental normalcy of the acused, which doubt found confirmation in the official
reports submitted by the specialists of the San Lazaro Hospital.

(e) According to the report (Exhibit 4) of the alienist in charge, Dr. Toribio
Joson, which report was made within the first month of treatment, the defendant was
suffering from a form of psychosis, called manic depressive psychosis.We quote the
report in full:

INSULAR PSYCHOPATIC HOSPITAL

MANDALUYONG, RIZAL

January 15, 1935.

MEMORANDUM FOR: The chief Alienist, Insular Psychopatic

Hospital, Mandaluyong, Rizal.
SUBJECT: Patient Celestino Bonoan, male,
Filipino, 30 years old, sent by the
Secret Service of the City of Manila
for mental examinition.
1. MENTAL STATUS:

(a) General behavior. The patient is undetective, staying most of the time in his
bed with his eyes closed and practically totally motionless. At other times,
however, but on very rare occassions and at short intervals he apparently wakes up
and then he walks around, and makes signs and ritualistic movements with the
extremities and other parts of the body. Ordinarily he takes his meal but at times
he refuses to take even the food offered by his mother or sister, so that there
have been days in the hospital when he did not take any nourishment. On several
occassions he refused to have the bath, or to have his hair cut and beard shaved,
and thus appear untidy. He would also sometimes refuse his medicine, and during
some of the intervals he displayed impulsive acts, such as stricking his chest or
other parts of the body with his fists and at one time after a short interview, he
struck strongly with his fist the door of the nurse's office without apparent
motivation. He also sometimes laughs, or smiles, or claps his hands strongly
without provocation.

(b) Stream of talk. Usually the patient is speechless, can't be persuaded to

speak, and would not answer in any form the questions propounded to him. Very often
he is seen with his eyes closed apparently praying as he was mumbling words but
would not answer at all when talked to. At one time he was seen in this condition
with a cross made of small pieces of strick in his hand. He at times during the
interviews recited passages in the literature as for example the following.

"La virtud y las buenas costumbres son la verdadera nobleza del hombre.
(Truthfulness, honesty and loyalty are among the attributes of a dependable
character.)"

At one time he tried to recite the mass in a very loud voice in the hospital.

(c) Mood. Patient is usually apathetic and indifferent but at times he looks
anxious and rather irritable. He himself states that the often feels said in the
hospital.

(d) Orientation. During the periods that he was acccessible he was found oriented
as to place and person but he did not know the day or the date.

(e) Illusion and hallucination. The patient states that during the nights that he
could not sleep he could hear voices telling him many things. Voices, for example,
told that he should escape. That he was going to be killed because he was
benevolet. That he could sometimes see the shadow of his former sweetheart in the
hospital. There are times however when he could not hear or see at all anything.

(f ) Delusion and misinterpretation. On one occassion he told the examiner that

he could not talk in his first day in the hospital because of a mass he felt he had
in his throat. He sometimes thinks that he is already dead and already buried in
the La Loma Cemetery.

(g) Compulsive phenomena. None.

(h) Memory. The patient has a fairly good memory for remote events, but his
memory for recent events or for example, for events that took place during his stay
in the hospital he has no recollection at all.

(i) Grasp of general informartion. He has a fairly good grasp of general

information. He could not, however, do simple numerial tests as the 100-7 test.

( j) Insight and judgment. At his fairly clear periods he stated that he might
have been insane during his first days in the hospital, but just during the
interview on January 14, 1935, he felt fairly well. Insight and judgment were, of
course, nil during his stuporous condition. During the last two days he has shown
marked improvement in his behavior as to be cooperative, and coherent in his
speech.

2. OPINION AND DIAGNOSIS:

The patient during his confinement in the hospital has been found suffering from a
form of physchosis, called Manic depressive psychosis.

(Sgd.) TORIBIO JOSON, M. D.

Assistant Alienist

In the subsequent report, dated June 11, 1935 (Exhibit 5), filed by Dr. Jose A.
Fernandez, another assistant alienist in the Insular Pshychopatic Hospital, the
following conclusion was reached:

I am of the opinion that actually this patient is sick. He is suffering from the
Manic Depressive form of psychosis. It might be premature to state before the court
has decided this case, but I believe it a duty to state, that this person is not
safe to be at large. He has a peculiar personality make-up, a personality lacking
in control, overtly serious in his dealings with the every day events of this
earthly world, taking justice with his own hands and many times executing it in an
impulsive manner as to make his action over proportionate beyond normal
acceptance. He is sensitive, overtly religious, too idealistic has taste and
desires as to make him queer before the average conception of an earthly man.

He will always have troubles and difficulaties with this world of realities.

(Sgd.) J. A. Fernandez, M. D.
Assistant Alienist
To prove motive and premeditation and, indirectly, mental normlacy of the accused
at the time of the commission of the crime, the prosecution called on policeman
Damaso Arnoco. Arnoco testified that upon arresting the defendant-appellant he
inquired from the latter for the reason for the assault and the defendant-appellant
replied that the deceased Guison owed him P55 and would pay; that appellant bought
the knife, Exhibit A, for 55 centavos in Tabora Street and that for two days he had
been watching for Guison in order to kill him (pp. 5, 6, t. s. n.). Benjamin Cruz,
a detective, was also called and corroborated the testimony of policeman Arnoco.
That such kind of evidence is not necessarily proof of the sanity of the accused
during the commission of the offense, is clear from what Dr. Sydney Smith, Regius
Professor of Forensic Medicine, University of Edinburg, said in his work on
Forensic Medicine (3d ed. [London], p. 382), that in the type of dementia prcox,
"the crime is ussually preceded by much complaining and planning. In these people,
homicidal attcks are common, because of delusions that they are being interfered
with sexually or that their property is being taken."

In view of the foregoing, we are of the opinion that the defendant-appellant was
demented at the time he perpetrated the serious offense charged in the information
and that conseuently he is exempt from criminal liability. Accordingly, the
judgment of the lower court is hereby reversed, and the defendant-appellant
acquitted, with costs de oficio in both instances. In conforminty with paragraph 1
of article 12 of the Revised Penal Code, the defendant shall kept in confinement in
the San Lazaro Hospital or such other hospital for the insane as may be desiganted
by the Director of the Philippine Health Service, there to remain confined until
the Court of First Instance of Manila shall otherwise order or decree. So ordered.

Avancea, C.J., Villa-Real and Abad Santos, JJ., concur.

SECOND DIVISION

G.R. No. 89420 July 31, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROSALINO DUNGO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

PARAS, J.:

This is an automatic review of the Decision* of the Regional Trial Court of the
Third Judicial Region, Branch 54, Macabebe, Pampanga, convicting the accused of the
crime of murder.

The pertinent facts of the case are:

On March 24, 1987, the prosecuting attorney of the Province of Pampanga filed an
information charging Rosalino Dungo, the defendant-appellant herein, with the
felony of murder, committed as follows:

That on or about the 16th day of March, 1987 in the Municipality of Apalit,
Province of Pampanga, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused ROSALINO DUNGO, armed with a knife, with deliberate
intent to kill, by means of treachery and with evident premeditation, did then and
there willfully, unlawfully and feloniously attack, assault and stab Mrs. Belen
Macalino Sigua with a knife hitting her in the chest, stomach, throat and other
parts of the body thereby inflicting upon her fatal wounds which directly caused
the death of said Belen Macalino Sigua.

All contrary to law, and with the qualifying circumstance of alevosia, evident
premeditation and the generic aggravating circumstance of disrespect towards her
sex, the crime was committed inside the field office of the Department of Agrarian
Reform where public authorities are engaged in the discharge of their duties,
taking advantage of superior strength and cruelty. (Record, p. 2)

On arraignment, accused-appellant Rosalino Dungo pleaded not guilty to the crime

charged. Trial on the merits thereafter ensued.
The prosecution, through several witnesses, has established that on March 16, 1987
between the hours of 2:00 and 3:00 o'clock in the afternoon, a male person,
identified as the accused, went to the place where Mrs. Sigua was holding office at
the Department of Agrarian Reform, Apalit, Pampanga. After a brief talk, the
accused drew a knife from the envelope he was carrying and stabbed Mrs. Sigua
several times. Accomplishing the morbid act, he went down the staircase and out of
the DAR's office with blood stained clothes, carrying along a bloodied bladed
weapon. (TSN, pp. 4-19, 33-46, April 13, 1987; TSN, pp. 5-21, 28-38, April 20,
1987).

The autopsy report (Exh. "A") submitted by Dra. Melinda dela Cruz Cabugawan reveals
that the victim sustained fourteen (14) wounds, five (5) of which were fatal.

Rodolfo Sigua, the husband of the deceased, testified that, sometime in the latter
part of February, 1987, the accused Rosalino Dungo inquired from him concerning the
actuations of his wife (the victim) in requiring so many documents from the
accused. Rodolfo Sigua explained to the accused the procedure in the Department of
Agrarian Reform but the latter just said "never mind, I could do it my own way."
Rodolfo Sigua further testified that his wife's annual salary is P17,000.00, and he
spent the amount of P75,000.00 for the funeral and related expenses due to the
untimely death of his wife. (TSN, pp. 4-21, April 22, 1987).

The accused, in defense of himself, tried to show that he was insane at the time of
the commission of the offense.

The defense first presented the testimony of Andrea Dungo, the wife of the accused.
According to her, her husband had been engaged in farming up to 1982 when he went
to Lebanon for six (6) months. Later, in December 1983, her husband again left for
Saudi Arabia and worked as welder. Her husband did not finish his two-year contract
because he got sick. Upon his arrival, he underwent medical treatment. He was
confined for one week at the Macabali Clinic. Thereafter he had his monthly check-
up. Because of his sickness, he was not able to resume his farming. The couple,
instead, operated a small store which her husband used to tend. Two weeks prior to
March 16, 1987, she noticed her husband to be in deep thought always; maltreating
their children when he was not used to it before; demanding another payment from
his customers even if the latter had paid; chasing any child when their children
quarrelled with other children. There were also times when her husband would inform
her that his feet and head were on fire when in truth they were not. On the fateful
day of March 16, 1987, at around noon time, her husband complained to her of
stomach ache; however, they did not bother to buy medicine as he was immediately
relieved of the pain therein. Thereafter, he went back to the store. When Andrea
followed him to the store, he was no longer there. She got worried as he was not in
his proper mind. She looked for him. She returned home only when she was informed
that her husband had arrived. While on her way home, she heard from people the
words "mesaksak" and "menaksak" (translated as "stabbing" and "has stabbed"). She
saw her husband in her parents-in-law's house with people milling around, including
the barangay officials. She instinctively asked her husband why he did such act,
but he replied, "that is the only cure for my ailment. I have a cancer in my
heart." Her husband further said that if he would not be able to kill the victim in
a number of days, he would die, and that he chose to live longer even in jail. The
testimony on the statements of her husband was corroborated by their neighbor
Thelma Santos who heard their conversation. (See TSN, pp. 12-16, July 10, 1987).
Turning to the barangay official, her husband exclaimed, "here is my wallet, you
surrender me." However, the barangay official did not bother to get the wallet from
him. That same day the accused went to Manila. (TSN, pp. 6-39, June 10, 1981)

Dra. Sylvia Santiago and Dr. Nicanor Echavez of the National Center for Mental
Health testified that the accused was confined in the mental hospital, as per order
of the trial court dated August 17, 1987, on August 25, 1987. Based on the reports
of their staff, they concluded that Rosalino Dungo was psychotic or insane long
before, during and after the commission of the alleged crime and that his insanity
was classified under organic mental disorder secondary to cerebro-vascular accident
or stroke. (TSN, pp. 4-33, June 17, 1988; TSN, pp. 5-27, August 2, 1988).

Rosalino Dungo testified that he once worked in Saudi Arabia as welder. However, he
was not able to finish his two-year contract when he got sick. He had undergone
medical treatment at Macabali Clinic. However, he claimed that he was not aware of
the stabbing incident nor of the death of Mrs. Belen Sigua. He only came to know
that he was accused of the death of Mrs. Sigua when he was already in jail. (TSN,
pp. 5-14, July 15, 1988)

Rebuttal witnesses were presented by the prosecution. Dr. Vicente Balatbat

testified that the accused was his patient. He treated the accused for ailments
secondary to a stroke. While Dr. Ricardo Lim testified that the accused suffered
from oclusive disease of the brain resulting in the left side weakness. Both
attending physicians concluded that Rosalino Dungo was somehow rehabilitated after
a series of medical treatment in their clinic. Dr. Leonardo Bascara further
testified that the accused is functioning at a low level of intelligence. (TSN, pp.
620, September 1, 1988; TSN, pp. 4-29, November 7, 1988).

On January 20, 1989, the trial court rendered judgment the dispositive portion of
which reads:

WHEREFORE, finding the accused guilty beyond reasonable doubt as principal for the
crime of murder, the Court hereby renders judgment sentencing the accused as
follows:

1. To suffer the penalty of reclusion perpetua and the accessories of the law;

2. To indemnify the family of the victim in the amount of P75,000.00 as actual

damage, P20,000.00 as exemplary damages and P30,000.00 as moral damages.

SO ORDERED. (p. 30, Rollo)

The trial court was convinced that the accused was sane during the perpetration of
the criminal act. The act of concealing a fatal weapon indicates a conscious
adoption of a pattern to kill the victim. He was apprehended and arrested in Metro
Manila which indicates that he embarked on a flight in order to evade arrest. This
to the mind of the trial court is another indication that the accused was sane when
he committed the crime.

It is an exercise in futility to inquire into the killing itself as this is already

admitted by the defendant-appellant. The only pivotal issue before us is whether or
not the accused was insane during the commission of the crime changed.

One who suffers from insanity at the time of the commission of the offense charged
cannot in a legal sense entertain a criminal intent and cannot be held criminally
responsible for his acts. His unlawful act is the product of a mental disease or a
mental defect. In order that insanity may relieve a person from criminal
responsibility, it is necessary that there be a complete deprivation of
intelligence in committing the act, that is, that the accused be deprived of
cognition; that he acts without the least discernment; that there be complete
absence or deprivation of the freedom of the will. (People v. Puno, 105 SCRA 151)

It is difficult to distinguish sanity from insanity. There is no definite defined

border between sanity and insanity. Under foreign jurisdiction, there are three
major criteria in determining the existence of insanity, namely: delusion test,
irresistible impulse test, and the right and wrong test. Insane delusion is
manifested by a false belief for which there is no reasonable basis and which would
be incredible under the given circumstances to the same person if he is of compos
mentis. Under the delusion test, an insane person believes in a state of things,
the existence of which no rational person would believe. A person acts under an
irresistible impulse when, by reason of duress or mental disease, he has lost the
power to choose between right and wrong, to avoid the act in question, his free
agency being at the time destroyed. Under the right and wrong test, a person is
insane when he suffers from such perverted condition of the mental and moral
faculties as to render him incapable of distinguishing between right and wrong.
(See 44 C.J.S. 2)

So far, under our jurisdiction, there has been no case that lays down a definite
test or criterion for insanity. However, We can apply as test or criterion the
definition of insanity under Section 1039 of the Revised Administrative Code, which
states that insanity is "a manifestation in language or conduct, of disease or
defect of the brain, or a more or less permanently diseased or disordered condition
of the mentality, functional or organic, and characterized by perversion,
inhibition, or by disordered function of the sensory or of the intellective
faculties, or by impaired or disordered volition." Insanity as defined above is
evinced by a deranged and perverted condition of the mental faculties which is
manifested in language or conduct. An insane person has no full and clear
understanding of the nature and consequence of his act.

Thus, insanity may be shown by surrounding circumstances fairly throwing light on

the subject, such as evidence of the alleged deranged person's general conduct and
appearance, his acts and conduct inconsistent with his previous character and
habits, his irrational acts and beliefs, and his improvident bargains.

Evidence of insanity must have reference to the mental condition of the person
whose sanity is in issue, at the very time of doing the act which is the subject of
inquiry. However, it is permissible to receive evidence of his mental condition for
a reasonable period both before and after the time of the act in question. Direct
testimony is not required nor the specific acts of derangement essential to
establish insanity as a defense. The vagaries of the mind can only be known by
outward acts: thereby we read the thoughts, motives and emotions of a person; and
through which we determine whether his acts conform to the practice of people of
sound mind. (People v. Bonoan, 64 Phil. 87)

In the case at bar, defense's expert witnesses, who are doctors of the National
Center for Mental Health, concluded that the accused was suffering from psychosis
or insanity classified under organic mental disorder secondary to cerebro-vascular
accident or stroke before, during and after the commission of the crime charged.
(Exhibit L, p. 4). Accordingly, the mental illness of the accused was characterized
by perceptual disturbances manifested through impairment of judgment and impulse
control, impairment of memory and disorientation, and hearing of strange voices.
The accused allegedly suffered from psychosis which was organic. The defect of the
brain, therefore, is permanent.

Dr. Echavez, defense's expert witness, admitted that the insanity of the accused
was permanent and did not have a period for normal thinking. To quote

Q Is there such a lucid intervals?

A In this case, considering the nature of the organic mental disorder, the
lucid intervals unfortunately are not present, sir.

(TSN, p. 36, August 2, 1988)

However, Dr. Echavez disclosed that the manifestation or the symptoms of psychosis
may be treated with medication. (TSN, p. 26, August 2, 1988). Thus, although the
defect of the brain is permanent, the manifestation of insanity is curable.

Dr. Echavez further testified that the accused was suffering from psychosis since
January of 1987, thus:

Q In your assessment of the patient, did you determine the length of time the
patient has been mentally ill?

A From his history, the patient started (sic) or had a stroke abroad. If I may
be allowed to scan my record, the record reveals that the patient had a stroke in
Riyadh about seven (7) months before his contract expired and he was brought home.
Sometime in January of 1987, the first manifestation is noted on the behavioral
changes. He was noted to be in deep thought, pre-occupied self, complaining of
severe headache, deferment of sleep and loss of appetite; and that was about
January of 1987, Sir. (TSN, pp. 21-22, August 2, 1988)

The defense reposed their arguments on the findings of the doctors of the National
Center for Mental Health, specifically on Dr. Echavez's assessment that the accused
has been insane since January of 1987 or three (3) months before the commission of
the crime charged. The doctors arrived at this conclusion based on the testimonies
of the accused's wife and relatives, and after a series of medical and
psychological examinations on the accused when he was confined therein. However, We
are still in quandary as to whether the accused was really insane or not during the
commission of the offense.

The prosecution aptly rebutted the defense proposition, that the accused, though he
may be insane, has no lucid intervals. It is an undisputed fact that a month or few
weeks prior to the commission of the crime charged the accused confronted the
husband of the victim concerning the actuations of the latter. He complained
against the various requirements being asked by the DAR office, particularly
against the victim. We quote hereunder the testimony of Atty. Rodolfo C. Sigua:

Q In the latter part of February 1987 do you remember having met the accused
Rosalino Dungo?

A Yes, sir.

Q Where?

A At our residence, sir, at San Vicente, Apalit, Pampanga.

Q Could you tell us what transpired in the latter part of February 1987, when
you met the accused at your residence?

A Accused went to our residence. When I asked him what he wanted, accused told
me that he wanted to know from my wife why she was asking so many documents: why
she was requiring him to be interviewed and file the necessary documents at the
Office of the DAR. Furthermore, he wanted to know why my wife did not want to
transfer the Certificate of Land Transfer of the landholding of his deceased father
in his name.

x x x x x x x x x

Q When the accused informed you in the latter part of February 1987 that your
wife the late Belen Macalino Sigua was making hard for him the transfer of the
right of his father, what did you tell him?

A I asked the accused, "Have you talked or met my wife? Why are you asking this
question of me?"

Q What was his answer?

A Accused told me that he never talked nor met my wife but sent somebody to her
office to make a request for the transfer of the landholding in the name of his
deceased father in his name.

Q When you informed him about the procedure of the DAR, what was the comment of
the accused?

A The accused then said, "I now ascertained that she is making things difficult
for the transfer of the landholding in the name of my father and my name."

(TSN, pp. 5-7, April 22, 1987)

If We are to believe the contention of the defense, the accused was supposed to be
mentally ill during this confrontation. However, it is not usual for an insane
person to confront a specified person who may have wronged him. Be it noted that
the accused was supposed to be suffering from impairment of the memory, We infer
from this confrontation that the accused was aware of his acts. This event proves
that the accused was not insane or if insane, his insanity admitted of lucid
intervals.

The testimony of defense witness Dr. Nicanor Echavez is to the effect that the
appellant could have been aware of the nature of his act at the time he committed
it. To quote:

Q Could you consider a person who is undergoing trial, not necessarily the
accused, when asked by the Court the whereabouts of his lawyer he answered that his
lawyer is not yet in Court and that he is waiting for his counsel to appear and
because his counsel did not appear, he asked for the postponement of the hearing of
the case and to reset the same to another date. With those facts, do you consider
him insane?

A I cannot always say that he is sane or insane, sir.

Q In other words, he may be sane and he may be insane?

A Yes, sir.

COURT

Q How about if you applied this to the accused, what will be your conclusion?

A Having examined a particular patient, in this particular case, I made a

laboratory examination, in short all the assessment necessary to test the behavior
of the patient, like for example praying for postponement and fleeing from the
scene of the crime is one situation to consider if the patient is really insane or
not. If I may elaborate to explain the situation of the accused, the nature of the
illness, the violent behavior, then he appears normal he can reason out and at the
next moment he burst out into violence regardless motivated or unmotivated. This is
one of the difficulties we have encountered in this case. When we deliberated
because when we prepared this case we have really deliberation with all the members
of the medical staff so those are the things we considered. Like for example he
shouted out "Napatay ko si Mrs. Sigua!" at that particular moment he was aware of
what he did, he knows the criminal case.

COURT
Q With that statement of yours that he was aware when he shouted that he killed
the victim in this case, Mrs. Sigua, do we get it that he shouted those words
because he was aware when he did the act?

A The fact that he shouted, Your Honor, awareness is there. (TSN, pp. 37-41,
August 2, 1983; emphasis supplied)

Insanity in law exists when there is a complete deprivation of intelligence. The

statement of one of the expert witnesses presented by the defense, Dr. Echavez,
that the accused knew the nature of what he had done makes it highly doubtful that
accused was insane when he committed the act charged. As stated by the trial court:

The Court is convinced that the accused at the time that he perpetrated the act was
sane. The evidence shows that the accused, at the time he perpetrated the act was
carrying an envelope where the fatal weapon was hidden. This is an evidence that
the accused consciously adopted a pattern to kill the victim. The suddenness of the
attack classified the killing as treacherous and therefore murder. After the
accused ran away from the scene of the incident after he stabbed the victim several
times, he was apprehended and arrested in Metro Manila, an indication that he took
flight in order to evade arrest. This to the mind of the Court is another indicia
that he was conscious and knew the consequences of his acts in stabbing the victim
(Rollo, p. 63)

There is no ground to alter the trial court's findings and appreciation of the
evidence presented. (People v. Claudio, 160 SCRA 646). The trial court had the
privilege of examining the deportment and demeanor of the witnesses and therefore,
it can discern if such witnesses were telling the truth or not.

Generally, in criminal cases, every doubt is resolved in favor of the

accused.1wphi1 However, in the defense of insanity, doubt as to the fact of
insanity should be resolved in fervor of sanity. The burden of proving the
affirmative allegation of insanity rests on the defense. Thus:

In considering the plea of insanity as a defense in a prosecution for crime, the

starting premise is that the law presumes all persons to be of sound mind. (Art.
800, Civil Code: U.S. v. Martinez, 34 Phil. 305) Otherwise stated, the law presumes
all acts to be voluntary, and that it is improper to presume that acts were done
unconsciously (People v. Cruz, 109 Phil. 288). . . . Whoever, therefore, invokes
insanity as a defense has the burden of proving its existence. (U.S. v. Zamora, 52
Phil. 218) (People v. Aldemita, 145 SCRA 451)

The quantum of evidence required to overthrow the presumption of sanity is proof

beyond reasonable doubt. Insanity is a defense in a confession and avoidance and as
such must be proved beyond reasonable doubt. Insanity must be clearly and
satisfactorily proved in order to acquit an accused on the ground of insanity.
Appellant has not successfully discharged the burden of overcoming the presumption
that he committed the crime as charged freely, knowingly, and intelligently.

Lastly, the State should guard against sane murderer escaping punishment through a
general plea of insanity. (People v. Bonoan, supra) PREMISES CONSIDERED, the
questioned decision is hereby

AFFIRMED without costs.