THIRD DIVISION

[G.R. No. 150723. July 11, 2006.]

RAMONITO MANABAN, petitioner, vs. COURT OF APPEALS and

THE PEOPLE OF THE PHILIPPINES, respondents.

DECISION

CARPIO, J : p

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 o'clock 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 Prosecution's 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").AEIHaS

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 Bautista's 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 Bautista's 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 Bautista's 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 victim's 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
Bautista's 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
of P5,050 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 Health
Center 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 husband's death, she spent more than
P111,000 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. Piñano 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 Defense's 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 issued to Bautista and saw that the receipt indicated that a
wrong PIN was entered. Manaban informed Bautista that the ATM captured Bautista's
ATM card because he entered the wrong PIN. He then advised Bautista to return the
following day when the staff in charge of servicing the ATM would be around.

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.cEITCA

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
Bautista's 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 Court's 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 Bautista's 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 Manaban's claim, Bautista was not about to draw his gun to
shoot Manaban. Evidence show that Bautista's 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
rejected Manaban's 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 court's 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 victim's 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 petitioner's self-defense on
the sole fact that the entrance of the deceased victim's 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 Court's Ruling

The petition is partly meritorious. AacSTE

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 court's 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 defendant's 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 Manaban's 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 victim's 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 victim's 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 victim's gun still tucked on his
waistline?

A: Yes, sir.

Q: And his hand was merely placed on his hips. The victim's 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. CADHcI

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 victim's 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 victim's
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 to "makipagsabayan."

xxx xxx xxx

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 Manaban's firearm was already aimed at
Bautista.HITAEC

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 one's 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 Bautista's 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.

Quisumbing, Carpio Morales, Tinga and Velasco, Jr., JJ., concur.

Footnotes

1.Under Rule 45 of the 1997 Rules of Civil Procedure.

2.Penned by Associate Justice Portia Aliño-Hormachuelos, with Associate Justices Fermin A.

Martin, Jr. and Mercedes Gozo-Dadole, concurring.

3.Penned by Associate Justice Portia Aliño-Hormachuelos, with Associate Justices Martin S.

Villarama, Jr. and Mercedes Gozo-Dadole, concurring.

4.Rollo, p. 47.

5.CA rollo, p. 12; Records, p. 1.

6.The trial court Decision erroneously stated that the arraignment was on 5 December 1996.
However, the Certificate of Arraignment, Minutes, and Order of the trial court show
that Manaban was arraigned on 4 December 1996. Records, pp. 28-30.

7.TSN, 27 January 1998.

8.Rollo, pp. 48-49; TSN, 5 and 19 May 1997.

9.TSN, 7 August 1997.

10.TSN, 13 November 1997.

11.Exh. "X," records, p. 173.

12.Exh. "Y," records, p. 174.

13.Records, p. 167.

14.This was the service firearm confiscated from Manaban.

15.FID Report No. 603-11-1096, dated 15 October 1996. Records, pp. 167-168.

16.Editha submitted a list of expenses incurred with a total of P111,324. Exh. "LL," records, p.
187.

17.See Exhs. "II," "JJ," "KK," and "LL," records, pp. 184-187.
18.TSN, 10 June 1997, pp. 44-46. See certification letter of Tan and Piñano, dated 14 October
1996, addressed to the State Investigation and Intelligence Division of the Philippine
National Police in Quezon City, records, p. 164.

19.TSN, 29 July 1998, pp. 5-24.

20.Id. at 25-42.

21.TSN, 14 October 1998.

22.TSN, 18 November 1998.

23.TSN, 21 October 1998.

24.Rollo, p. 56. Records, p. 319.

25.Rollo, pp. 11-12.

26.People v. Jubail, G.R. No. 143718, 19 May 2004, 428 SCRA 478.

27.Senoja v. People, G.R. No. 160341, 19 October 2004, 440 SCRA 695; People v. Gadia, 418
Phil. 30 (2001).

28.People v. Gallego, 453 Phil. 825 (2003).

29.Catalina Security Agency v. Gonzales-Decano, G.R. No. 149039, 27 May 2004, 429 SCRA
628; People v. Pansensoy, 437 Phil. 499 (2002).

30.People v. Gallego, supra note 28.

31.People v. Gadia, 418 Phil. 30 (2001).

32.People v. Gallego, supra.

33.People v. Catbagan, G.R. Nos. 149430-32, 23 February 2004, 423 SCRA 535.

34.Toledo v. People, G.R. No. 158057, 24 September 2004, 439 SCRA 94.

35.People v. Catbagan, supra.

36.Cabuslay v. People, G.R. No. 129875, 30 September 2005, 471 SCRA 241; People v.
Escarlos, G.R. No. 148912, 10 September 2003, 410 SCRA 463; Roca v. Court of
Appeals, G.R. No. 114917, 29 January 2001, 350 SCRA 414.

37.TSN, 29 July 1998, pp. 28-41, 46 (Emphasis supplied).

 38.People v. Damitan, 423 Phil. 113 (2001).

39.Senoja v. People, supra note 27.

40.People v. Pansensoy, supra note 29.

41.People v. Malejana, G.R. No. 145002, 24 January 2006.

42.See Certificate of Identification of Dead Body (Exh. "U"), records, p. 196; Certificate of
Post-Mortem Examination (Exh. "X"), records, p. 199; Autopsy Report No. N-96-2047
(Exh. "Y"), records, p. 200.

43.It was the accused, Ramonito Manaban, who was 26 years old at the time of the shooting
incident.

44.See Service Record of Bautista (Exh. "HH"), records, p. 183. The mistake may be due to the
testimony of Editha that Bautista was receiving a monthly salary of P5,050 (or an
annual salary of P60,600) at the time of his death.

45.Pleyto v. Lomboy, G.R. No. 148737, 16 June 2004, 432 SCRA 329; People v. Agudez, G.R.
Nos. 138386-87, 20 May 2004, 428 SCRA 692; Tugade, Sr. v. Court of Appeals, 455
Phil. 258 (2003).

46.Exh. "LL," records, p. 187.

47.See People v. Agudez, supra.

48.Pleyto v. Lomboy, supra.

49.Exh. "II," records, p. 184.

50.Exh. "JJ," records, p. 185.

51.Id.

52.Exh. "KK," records, p. 186.

53.People v. Quirol, G.R. No. 149259, 20 October 2005, 473 SCRA 509; People v. Catbagan,
supra note 33; People v. Daniela, 449 Phil. 547 (2003); People v. Escote, Jr., 448 Phil.
749 (2003); People v. Dungca, 428 Phil. 682 (2002).

||| (Manaban v. Court of Appeals, G.R. No. 150723, [July 11, 2006], 527 PHIL 84-108)
 SECOND DIVISION

[G.R. No. 160341. October 19, 2004.]

EXEQUIEL SENOJA, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION

CALLEJO, SR., J : p

Before us is a petition for review on certiorari of the Decision 1 of the Court of Appeals
(CA) in People v. Exequiel Senoja, docketed as CA-G.R. CR No. 26564, affirming with
modification the Decision 2 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 Leon's 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 Crisanto's 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 o'clock 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. aSADIC

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 o'clock 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
Crisanto's 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 Leon's 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 Calica's 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
appellant's 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 Calica's 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 Calica's 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. DIETHS

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 appellant's testimony, Leon Lumasac's actions can be divided into
two (2) phases: the first phase, when Leon entered Crisanto Reguyal's 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 Reguyal's 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 Leon's 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. Appellant's testimony is that when he was two meters
outside the hut, Leon turned around to face him saying "if you're not only my
godson" in a threatening way, then approached and hacked him (with Calica's
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 one's 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 petitioner's 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 petitioner's 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. TECIaH
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 victim's 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 latter's 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 1/2 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 1/2 inch to the right of the anterior median line at the level of the
xyphoid process 3 1/2 inches deep running superiorly.

(+) stab wound at the level of the L nipple L anterior axillary line 4 1/2 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. cHCaIE

(+) 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
petitioner's 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. cIHDaE

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 don't 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
petitioner's claim that the victim was armed with a bolo is hard to believe because he
even failed to surrender the bolo. 30

Fourth. The petitioner's 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.
cDIHES

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 don't 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. CIAacS

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 appellant's 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. AaDSTH

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 appellant's injuries, it is clear that they were sustained in the course of the
victim's attempt to defend himself as shown by the lacerated wound on the
victim's 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.

Puno, Austria-Martinez and Tinga, JJ ., concur.

Chico-Nazario, J ., is on leave.

Footnotes

1.Penned by Associate Justice Portia Aliño-Hormachuelos, with Associate Justices Perlita J.

Tria-Tirona and Rosalinda Asuncion Vicente, concurring.

2.Penned by Acting Presiding Judge Armando A. Yanga.

3.Rollo, pp. 52–53.

4.Records, p. 1.

5.Rollo, pp. 11–12.

6.Id. at 22–23.

7.Id. at 13.

8.Id. at 16–17.

9.Id. at 32–33.

10.People v. Noay, 296 SCRA 292 (1998).

11.Bishop, A Treatise on Criminal Law, 9th ed., Vol. I, pp. 599–600.

12.Id. at 180.

13.Wharton, Criminal Law, 12th ed., Vol. I, pp. 176–177.

14.People v. Langres, 316 SCRA 769 (1999).

15.Id. at 845–846.

16.People v. Arizala, 317 SCRA 244 (1999).

17.People v. Bitoon, Sr., 309 SCRA 209 (1999).

18.Bishop, supra, p. 617.

19.Wharton Criminal Law, 12th ed., Vol. I, p. 186.

20.People v. Arizala, 317 SCRA 244 (1999); People v. Real, 308 SCRA 244 (1999).

21.TSN, 7 September 2001, pp. 6–7.

22.Id. at 8–9.

23.Exhibit "A," Records, p. 13.

24.TSN, 20 November 1997, p. 8.

25.Id. at 7.
 26.Id. at 8.

27.People v. More, 321 SCRA 538 (1999); People v. Real, 308 SCRA 244 (1999).

28.TSN, 7 September 2001, p. 9.

29.People v. Sunpongco, 163 SCRA 222 (1988).

30.People v. Piamonte, 303 SCRA 577 (1999).

31.TSN, 7 September 2001, p. 8.

32.Id. at 7.

33.TSN, 29 January 2002, p. 13.

34.TSN, 12 February 2002, pp. 3–4.

35.TSN, 14 March 2001, pp. 3–4.

36.Ibid.

37.Rollo, p. 33.

||| (Senoja v. People, G.R. No. 160341, [October 19, 2004], 483 PHIL 716-734)

SECOND DIVISION

[G.R. No. 107874. August 4, 1994.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GEORGE

DECENA y ROCABERTE, accused-appellant.

DECISION

REGALADO, J : p

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. 3LexLib

A motion for reconsideration filed by appellant was denied ion 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 cdphil

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. cdphil
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, bin 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 discharged, otherwise conviction would follows
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. LLpr

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 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
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. prLL

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. prLL
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 of 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 was about 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. cdll

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 as 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 fact per 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. llcd

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 surrender 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. prcd

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.

Footnotes

1.Proverbs, 12:16.

2.Criminal Case No. D-10303, Regional Trial Court, Branch 44, Dagupan City; Judge Crispin
C. Laron, presiding; Original Record, 1.

3.Original Record, 90.

4.Ibid., 103-104.

5.Brief for the Appellant, 3; Rollo, 30.

6.TSN, April 10, 1991, 4-9; Exhibit E, Original Record, 9.

7.Ibid., April 3, 1991, 5-7; April 10, 1991, 12-13.

8.TSN, May 2, 1991, 4-6; June 10, 1991, 4-5.

9.People vs. Uribe, G.R. Nos. 76493-94, February 26, 1990, 182 SCRA 624; People vs.
Amania, et al., G. R. No. 97612, March 23, 1993, 220 SCRA 347.

10.People vs. Ansoyon, 75 Phil. 772 (1946); People vs. Caparas, et al., L-47411, February 20,
1981, 102 SCRA 781; People vs. Gadiano, L-31818, July 30, 1982, 115 SCRA 559;
People vs. Amania, et al., ante.
11.People vs. Madali, et al., G.R. Nos. 67803-04, July 30, 1990, 188 SCRA 69.

12.1 Viada, Codigo Penal Reformado de 1870, Quinto Edicion, 173.

13.U.S. vs. Laurel, 22 Phil. 252 (1912); People vs. Berio, 59 Phil. 533 (1934); People vs.
Dofilez, L-35103, July 25, 1984, 130 SCRA 603; Borguilla vs. Court of Appeals, et al.,
L-47286 January 7, 1987, 147 SCRA 9.

14.TSN, June 10, 1991, 8.

15.See Reyes, L.B. The Revised Penal Code, 13th ed. (1993), Book One, 153-54.

16.TSN, June 10, 1991, 7-8, 11; June 24, 1991, 7.

17.TSN, June 24, 1991, 8; June 10, 1991, 7; Exhibit E, Original Record, 13.

18.People vs. Gargoles, L-40885, May 18, 1978, 83 SCRA 282; People vs. Ancheta, et al., L-
29581-82, October 30, 1974, 60 SCRA 333; People vs. Magallanes, G.R. No. 89036,
January 29, 1993, 218 SCRA 109.

19.TSN, June 10, 1991, 4, 14.

20.Original Record, 86-87.

21.TSN, June 10, 1991, 14.

22.People vs. Manlulu, G.R. No. 102140, April 22, 1994.

23.TSN, May 2, 1991, 5-11.

24.TSN, June 10, 1991, 7, 12.

25.People vs. Villalobos, et al., G.R. No. 71526, May 27, 1992, 209 SCRA 304.

26.People vs. Alfonso, G.R. No. 78954, June 18, 1990, 186 SCRA 576.

27.People vs. Tiongson, L-35123-24, July 25, 1984, 130 SCRA 614; People vs. Manalo, G.R.
No. 55177, February 27, 1987, 148 SCRA 98; People vs. Atienza, G.R. No. 68481,
February 27, 1987, 148 SCRA 147.

28.People vs. Young, 83 Phil. 702 (1949); People vs. Talay, et al., L-24852, November 28,
1980, 101 SCRA 332; People vs. Ruiz, L-33609, December 14, 1981, 110 SCRA 155.

29.People vs. Tumaob, 83 Phil. 738, 742 (1949); People vs. Tugbo, Jr., G.R. No. 75894, April
22, 1991, 196 SCRA 133.
 30.People vs. Berbal, et al., G.R. 71527, August 10, 1989, 176 SCRA 202; Cf. People vs.
Mangsant, 65 Phil. 548 (1938); People vs. Ursal, et al., L-33768, April 20, 1983, 121
SCRA 409.

||| (People v. Decena y Rocaberte, G.R. No. 107874, [August 4, 1994])

EN BANC

[G.R. No. 128359. December 6, 2000.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERTO

E. DELA CRUZ, accused-appellant.

The Solicitor General for plaintiff-appellee.

Atty. Pompeyo L. Bautista for accused-appellant.

SYNOPSIS

In an information filed before the Regional Trial Court of Cabanatuan City, herein
accused was charged with the crime of qualified illegal possession of firearm and
ammunition with homicide for unlawfully and feloniously attacking one Daniel
Macapagal, by shooting the latter with the use of an unlicensed caliber .38 snub nose
firearm, thereby inflicting upon him gunshot wounds on different parts of his body,
which caused also his death. During arraignment, the accused pled not guilty to the crime
charged, and thereafter trial ensued. Unmoved by the claim of self-defense invoked by
the accused, the trial court rendered judgment finding the accused guilty beyond
reasonable doubt of the crime charged and sentenced him to suffer the penalty of death.
He is likewise ordered to indemnify the heirs of the deceased victim in the sum of
P50,000.00; to pay actual damages in the sum of P65,000.00 representing burial and
interment expenses; and the sum of P2,865,600.00 representing loss of income. In his
plea to the Court, accused-appellant contended that the decision of the court a quo was
bereft of factual and legal justification.

The Court scarcely found reversible error on the part of the trial court in rejecting the
claim of self-defense. 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 — but, most
importantly, at the time the defensive action was taken against the aggressor. True, the
victim barged into the house of accused-appellant and his live-in partner and banging at
the master bedroom door with his firearm. Accused-appellant, however, upon opening the
door and seeing the victim pointing a gun at him, was able to prevent at this stage harm to
himself by promptly closing the door. He could have stopped there. Instead, accused-
appellant, taking his .38 caliber revolver, again opened the bedroom door and brandishing
his own firearm, forthwith confronted the victim. At this encounter, accused-appellant
would be quite hardput to still claim self-defense. The trial court erred, however, in
imposing the death penalty on accused-appellant. Presidential Decree No. 1866 was
already amended by Republic Act No. 8294. Section 1, third paragraph, of the
amendatory law provides that "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." The provision is clear, and there would be no need to still
belabor the matter. The decision appealed from was modified. Accused-appellant was
held guilty of homicide with the use of an unlicensed firearm and sentenced to suffer the
indeterminate penalty. The award of P2,865,600.00 for loss of earning was reduced to
P1,432,800.00.

SYLLABUS

1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; SELF DEFENSE;

REQUISITES; WHEN SELF-DEFENSE IS INVOKED, THE BURDEN OF
EVIDENCE SHIFTS TO THE ACCUSED TO SHOW THAT THE KILLING HAS
BEEN LEGALLY JUSTIFIED. — Unmoved by the claim of self-defense invoked by the
accused, the trial court pronounced a judgment of guilt and handed a death sentence.
"WHEREFORE, premises considered, the Court finds and so declares the accused
ROBERTO DELA CRUZ guilty beyond reasonable doubt of the crime of Qualified
Illegal Possession of Firearm and Ammunition with Homicide, which is penalized under
Presidential Decree 1866, Sec. 1, and he is hereby sentenced to suffer death; he is,
likewise ordered to indemnify the heirs of the deceased victim in the sum of P50,000.00;
to pay actual damages in the sum of P65,000.00 representing burial and interment
expenses; and the sum of P2,865,600.00 representing loss of income." When self-defense
is invoked, the burden of evidence shifts to the accused to show that the killing has been
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 that he might be
able to rightly avail himself of the 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. The Court scarcely finds reversible
error on the part of the trial court in rejecting the claim of self-defense.

2. ID.; ID.; ID.; UNLAWFUL AGGRESSION; PRESUPPOSED AN ACTUAL,

SUDDEN AND UNEXPECTED ATTACK OR IMMINENT DANGER ON THE LIFE
AND LIMB OF A PERSON, NOT A MERE THREATENING OR INTIMIDATING
ATTITUDE. — 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 — but, most
importantly, at the time the defensive action was taken against the aggressor. True, the
victim barged into the house of accused-appellant and his live-in partner and, banging at
the master bedroom door with his firearm, he yelled, "come out." Accused-appellant,
however, upon opening the door and seeing the victim pointing a gun at him, was able to
prevent at this stage harm to himself by promptly closing the door. He could have
stopped there. Instead, accused-appellant, taking his .38 caliber revolver, again opened
the bedroom door and, brandishing his own firearm, forthwith confronted the victim. At
this encounter, accused-appellant would be quite hard put to still claim self-defense.

3. ID.; ILLEGAL POSSESSION OF FIREARM; ELEMENTS; LACK OF ANIMUS

POSSIDENDI; NOT PROVEN IN CASE AT BAR. — The elements of illegal
possession of firearm are (1) the existence of the subject firearm, (2) the ownership or
possession of the firearm, and (3) the absence of the corresponding license therefor.
Accused-appellant claims that he did not have animus possidendi in the use and
possession of the .38 caliber revolver since he has used it for just a "fleeting moment" to
defend himself. This assertion is not supported by the evidence. Apparently, the subject
revolver has all the while been kept in the house of accused-appellant and his live-in
partner.ECaAHS

4. ID.; MITIGATING CIRCUMSTANCES; VOLUNTARY SURRENDER; PRESENT

IN CASE AT BAR. — The mitigating circumstance of voluntary surrender should be
considered in favor of accused-appellant. Immediately following the shooting incident, he
instructed his live-in partner to call the police and report the incident. He waited for the
arrival of the authorities and readily acknowledge before them his having been
responsible for the shooting of the victim.

DECISION

VITUG, J : p
For automatic review is the decision, dated 27 November 1996, of the Regional Trial
Court, Branch 27, of Cabanatuan City, which has sentenced to death Roberto E. de la
Cruz for "Qualified Illegal Possession of Firearm and Ammunition with Homicide."

The information charging the accused with the offense, to which he pled "not guilty"
when arraigned, read:

"That on or about the 27th day of May, 1996, in the City of Cabanatuan,
Republic of the Philippines and within the jurisdiction of this Honorable Court,
the abovenamed accused, with intent to kill, did then and there, wilfully,
unlawfully and feloniously attack, assault and use personal violence upon the
person of one DANIEL MACAPAGAL, by shooting the latter with the use of
an unlicensed Caliber .38 snub nose firearm, with Serial No. 120958, thereby
inflicting upon him gunshot wounds on different parts of his body, which
caused also his death." 1

The facts relied upon by the trial court in its judgment were narrated by the Office of the
Solicitor General in the People's brief.

"The victim Daniel Macapagal, a married man, had been a live-in partner of
prosecution witness Ma. Luz Perla San Antonio for about two to three years
before San Antonio took appellant Roberto dela Cruz, widower, as lover and
live-in partner. At the time of the incident on May 27, 1996, appellant and San
Antonio were living in a house being rented by San Antonio at 094 Valino
District, Magsaysay Norte, Cabanatuan City (pp. 2-3, TSN, July 6, 1996).

"At around 6:00 o'clock in the evening on May 27, 1996, San Antonio and
appellant were resting in their bedroom when they heard a car stop in front of
their house and later knocks on their door. San Antonio opened the front door
and she was confronted by Macapagal who made his way inside the house
holding a gun in his hand, despite San Antonio's refusal to let him in. He
seemed to be looking for something or somebody as Macapagal walked passed
San Antonio and inspected the two opened bedrooms of the house. He then
went to the closed bedroom where appellant was and banged at the door with
his gun while yelling 'Come out. Come out' (p. 4, Ibid.). Appellant then opened
the door but he was greeted by Macapagal's gun which was pointed at him.
Appellant immediately closed the door while Macapagal continued banging at
it. When appellant again opened the door moments later, he was himself armed
with a .38 caliber revolver. The two at that instant immediately grappled for
each other's firearm. A few moments later shots were heard. Macapagal fell
dead on the floor.

"Appellant told San Antonio to call the police on the phone. After a few minutes
police officers arrived at the scene. They saw the dead body of Macapagal
slumped on the floor holding a gun. San Antonio met them on the door and
appellant was by then sitting. He stood up to pick his .38 caliber revolver which
 he surrendered to SPO3 Felix Castro, Jr. Appellant told the police that he shot
Macapagal in self-defense and went with them to the police station.

"Dr. Jun Concepcion, Senior Medical Officer of the Cabanatuan City General
Hospital, performed an autopsy on the cadaver of Macapagal and submitted a
report thereon (Exhibit H). Macapagal sustained four (4) gunshot wounds.
Three of the wounds were non-penetrating or those that did not penetrate a vital
organ of the human body. They were found in the upper jaw of the left side of
the face, below the left shoulder and the right side of the waist. Another gunshot
wound on the left side of the chest penetrated the heart and killed Macapagal
instantly.

"It was later found by the police that the firearm used by Macapagal was a 9mm
caliber pistol. It had one magazine loaded with twelve (12) live ammunition but
an examination of the gun showed that its chamber was not loaded.

"Macapagal had a license to carry said firearm. On the other hand, appellant,
who denied ownership of the .38 caliber revolver he used, had no license
therefor." 2

Unmoved by the claim of self-defense invoked by the accused, the trial court pronounced
a judgment of guilt and handed a death sentence.

"WHEREFORE, premises considered, the Court finds and so declares the

accused ROBERTO DELA CRUZ guilty beyond reasonable doubt of the crime
of Qualified Illegal Possession of Firearm and Ammunition with Homicide,
which is penalized under Presidential Decree 1866, Sec. 1, and he is hereby
sentenced to suffer death; he is, likewise ordered to indemnify the heirs of the
deceased victim in the sum of P50,000.00; to pay actual damages in the sum of
P65,000.00 representing burial and interment expenses; and the sum of
P2,865,600.00 representing loss of income." 3

In his plea to this Court, accused-appellant submits that the decision of the court a quo is
bereft of factual and legal justification.

When self-defense is invoked, the burden of evidence shifts to the accused to show that
the killing has been legally justified. 4 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 that he might be able to rightly avail himself of the extenuating
circumstance. 5 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. 6 All these conditions must
concur. 7

Here, the Court scarcely finds reversible error on the part of the trial court in rejecting the
claim of self-defense.

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 8 — but, most importantly, at the time the
defensive action was taken against the aggressor. True, the victim barged into the house
of accused-appellant and his live-in partner and, banging at the master bedroom door with
his firearm, he yelled, "come out." Accused-appellant, however, upon opening the door
and seeing the victim pointing a gun at him, was able to prevent at this stage harm to
himself by promptly closing the door. He could have stopped there. Instead, accused-
appellant, taking his .38 caliber revolver, again opened the bedroom door and,
brandishing his own firearm, forthwith confronted the victim. At this encounter, accused-
appellant would be quite hardput to still claim self-defense. 9

The second element of self-defense would demand that the means employed to quell the
unlawful aggression were reasonable and necessary. The number of the wounds sustained
by the deceased in this case would negate the existence of this indispensable component
of self-defense. 10 The autopsy report would show that the victim sustained four gunshot
wounds —

"1. Gunshot wound on the (L) shoulder as point of entry with trajectory toward
the (L) supra-scapular area as point of exit (through-through);

"2. Gunshot wound on the abdomen ® side laterally as point of entry (+) for
burned gun powder superficially with trajectory towards on the same side as
point of exit, through-through;

"3. Gunshot wound on the anterior chest (L) mid-clavicular line, level 5th ICS
as point of entry with trajectory towards the (L) flank as point of exit (through-
through) Internally: penetrating the heart (through-through) anterior then
posterior then (L) hemidia-prhagm and stomach; and HIDCTA

"4. Lacerated wound linear 1/2 inch in length (L) cheek area" 11 —

which would, in fact, indicate a determined effort to kill. 12

It would be essential, finally, for self-defense to be aptly invoked that there be lack of
sufficient provocation on the part of the person defending himself. When accused-
appellant, opening the bedroom door the second time, confronted, instead of merely
taking precautionary measures against, the victim with his own gun he had taken from the
cabinet, accused-appellant could no longer correctly argue that there utterly was no
provocation on his part.

The elements of illegal possession of firearm are (1) the existence of the subject firearm,
(2) the ownership or possession of the firearm, and (3) the absence of the corresponding
license therefor. 13

Accused-appellant claims that he did not have animus possidendi in the use and
possession of the .38 caliber revolver since he has used it for just a "fleeting moment" to
defend himself. This assertion is not supported by the evidence. Apparently, the subject
revolver has all the while been kept in the house of accused-appellant and his live-in
partner. Accused-appellant himself has thusly testified:

"Q When for the first time did you see that firearm inside the drawer of Candy?

"A Since the last week of April, sir.

"Q Did you ask Candy why she was in possession of that gun?

"A Once I opened her drawer and I asked her who owns that gun, sir.

"Q And what was her reply as to who owns that gun?

"A According to her that firearm was used as payment by a group of persons
who were her customers at the Videoke, sir.

"Q And what else did Candy tell you about that firearm, if you know?

"A She also told me that we can use that gun for protection, sir." 14

The trial court has erred, however, in imposing the death penalty on accused-appellant.
Presidential Decree No. 1866 is already amended by Republic Act No. 8294. Section 1,
third paragraph, of the amendatory law provides that "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." The provision is clear, and there would be
no need to still belabor the matter. 15

The mitigating circumstance of voluntary surrender should be considered in favor of

accused-appellant. Immediately following the shooting incident, he instructed his live-in
partner to call the police and report the incident. He waited for the arrival of the
authorities and readily acknowledged before them his having been responsible for the
shooting of the victim. 16
The aggravating circumstance of the use of unlicensed firearm being effectively offset by
the mitigating circumstance of voluntary surrender, 17 the penalty prescribed by law for
the offense should be imposed in its medium period. 18 Article 249 of the Revised Penal
Code prescribes the penalty of reclusion temporal in the crime of homicide, the range of
which is twelve (12) years and one (1) day to twenty (20) years. Applying the
Indeterminate Sentence Law, the maximum of the penalty shall be taken from the
medium period of reclusion temporal, i.e., from fourteen (14) years, eight (8) months,
and one (1) day to seventeen (17) years and four (4) months, while the minimum shall be
taken from the penalty next lower in degree, which is prision mayor, anywhere in its
range of from six (6) years and one (1) day to twelve (12) years.

The amount of P2,865,600.00 awarded by the trial court as damages for loss of earning
capacity should be modified. The testimony of the victim's surviving spouse, Marina
Villa Juan Macapagal, on the earning capacity of her husband Daniel Macapagal
sufficiently established the basis for making possible such an award. 19 The deceased was
44 years old at the time of his death in 1996, with a gross monthly income of P9,950.00.
20 In accordance with the American Expectancy Table of Mortality adopted in several
cases 21 decided by this Court, the loss of his earning capacity should be calculated
thusly:

Gross less living

Net earning capacity (x) = life expectancy x annual - expenses

income (50% of gross

annual income)

or

x = 2(80-44) x [119,400.00 - 59,700.00]

———

= 24 x 59,700.00

= P1,432,800.00

============

WHEREFORE, the decision appealed from is MODIFIED. Accused-appellant

ROBERTO DELA CRUZ y ESGUERRA is hereby held guilty of HOMICIDE with the
use of an unlicensed firearm, an aggravating circumstance that is offset by the mitigating
circumstance of voluntary surrender, and he is accordingly sentenced to an indeterminate
penalty of nine (9) years and one (1) day of prision mayor as minimum to sixteen (16)
years and one (1) day of reclusion temporal as maximum. The award of P2,865,600.00
for loss of earning is reduced to P1,432,800.00. In other respects, the judgment of the trial
court is AFFIRMED.

In the service of his sentence, accused-appellant shall be credited with the full time of his
preventive detention if they have agreed voluntarily and in writing to abide by the same
disciplinary rules imposed upon convicted prisoners pursuant to Article 29 of the Revised
Penal Code. IDATCE

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing,
Pardo, Buena, Gonzaga-Reyes, Yñares-Santiago, and De Leon, Jr., JJ., concur.

Footnotes

1.Rollo, p. 11.

2.Rollo, pp. 125-127.

3.Rollo, p. 38.

4.People vs. Galapin, 293 SCRA 474.

5.People vs. Baniel, 275 SCRA 472.

6.See People vs. Demonteverde, 290 SCRA 175.

7.Art. 11, par. 1, Revised Penal Code.

8.People vs. De Gracia, 264 SCRA 200.

9.Unlawful aggression is, of course, primordial; it must be real, i.e., an actual, sudden, and
unexpected attack or an imminent danger thereof, and not just a threatening or
intimidating attitude. (People vs. Maalat, 275 SCRA 206.)

10.People vs. Babor, 262 SCRA 359.

11.Rollo, p. 34.

12.People vs. Maceda, 197 SCRA 499.

 13.People vs. Bergante, 286 SCRA 629.

14.TSN, 17 October 1969, p. 20.

15.People vs. Molina, 292 SCRA 742.

16.The elements of voluntary surrender are that (1) the offender has not been actually arrested;
(2) he surrender himself to a person in authority or an agent of a person in authority;
and (3) his surrender was voluntary (People vs. Medina, 286 SCRA 44).

17.Presidential Decree No. 1866 not having provided otherwise.

18.Article 64, Revised Penal Code.

19.People vs. Verde, 302 SCRA 690; Pantranco North Express, Inc. vs. Baesa, 179 SCRA
384.

20.TSN of Marina Macapagal, 15 August 1996, p. 10.

21.People vs. Verde, 302 SCRA 690; Sanitary Steam Laundry, Inc. vs. Court of Appeals, 300
SCRA 20; Metro Manila Transit Corp. vs. Court of Appeals, 298 SCRA 495; Negros
Navigation Co., Inc. vs. Court of Appeals, 281 SCRA 534; Villa-Rey Transit, Inc. vs.
Court of Appeals, 31 SCRA 511.

||| (People v. Dela Cruz, G.R. No. 128359, [December 6, 2000], 400 PHIL 872-883)

SECOND DIVISION

[Adm. Matter 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.

SYLLABUS
 1. CRIMINAL LAW; HOMICIDE; EXEMPTING CIRCUMSTANCES;
DEFENSE OF HONOR. — 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.
2. ID.; ID.; ID.; ID.; CASE AT BAR. — 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; there was
and there could be no possibility of her being raped. And when she gave A. C. a thrust
at the base of the left side of his neck inflicting upon him a mortal wound 4½ inches
deep, causing his death a few moments later, the means employed by her in the defense
of her honor was evidently excessive. Held: That she cannot be legally declared
completely exempt from criminal liability.
3. ID.; ID.; MITIGATING CIRCUMSTANCES; VOLUNTARY
SURRENDER OBFUSCATION. — The fact that defendant and appellant immediately
and voluntarily and unconditionally surrendered to the barrio lieutenant, admitting
having stabbed the deceased, 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,
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.
4. ID.; ID.; ID.; LACK OF INTENTION TO COMMIT so GRAVE A WRONG
AS THAT ACTUALLY COMMITTED. — It appearing that defendant and appellant
merely wanted to punish the offending hand of the deceased with her knife, as shown
by the fact that she inflected upon him only one single wound, the mitigating
circumstance of lack of intention to commit so grave a wrong as that actually committed
should be considered in her favor.
5. ID.; ID.; AGGRAVATING CIRCUMSTANCES; COMMISSION OF
OFFENSE IN CONSECRATED PLACE. — The aggravating circumstance that the
killing was done in a place dedicated to religious worship, cannot be legally considered,
where there is no evidence to show that the defendant and appellant had murder in her
heart when she entered the chapel the fatal night.

DECISION
DE JOYA, J : p

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 mayor to thirteen years, nine months and eleven days of reclusion temporal,
with the accessory penalties provided by law, to indemnify the heirs of the deceased,
Amado Capiña, 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 donor 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 attented 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 Capiña 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 Capiña 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 breast, on account of
which Avelina, a 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 Capiña was seated on the other
side of the chapel. Upon observing the presence of Avelina Jaurigue, Amado Capiña
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 Capiña, 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
41/2 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 Capiña 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 and
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, may 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, 61 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 people 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, if 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 a 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 Capiña, 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 Capiña a thrust at the base of the left
side of his neck, inflicting upon him a mortal wound 41/2 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 Capiña, 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 the 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 of prision correccional, as maximum, with the
accessory penalties prescribed by law, to indemnify the heirs of the deceased Amado
Capiña, 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.

Separate Opinions
HILADO, J., concurring:

In past dissenting and concurring opinions my view regarding the validity or

nullity of judicial proceedings in the Japanese-sponsored courts which functioned in
the Philippines during the Japanese occupation has been consistent. I am not
abandoning it. But in deference to the majority who sustain the opposite view, and
because no party litigant herein has raised the question, I have taken part in the
consideration of this case on the merits. And, voting on the merits, I concur in the
foregoing decision penned by Justice De Joya.
||| (People v. Jaurigue, Adm. Matter No. 384, [February 21, 1946], 76 PHIL 174-183)

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.

SYLLABUS
1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCE; NOT SATISFIED AS THE
CASE AT BAR. — 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. I of the Revised Penal Code, but in order for it to be
appreciated, the following requisites must occur: Unlawful aggression; Reasonable
necessity of the means employed to prevent or repel it; Lack of sufficient provocation on
the part of the person defending himself (Art. II, par. 1, Revised Penal Code, as
amended). There is no question that there was aggression on the part of the victims:
Fleiseher 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
reasonableness of the resistance is also a requirement of the justifying circumstance of
self defense or defense of one's rights under paragraph I 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.

2. ID.; MITIGATING CIRCUMSTANCE; SPECIAL MITIGATING CIRCUMSTANCE

OF INCOMPLETE DEFENSE. — 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.

3. ID.; HOMICIDE; QUALIFYING CIRCUMSTANCE NOT APPRECIATED. — 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. 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 Ibañez, 37
years old, married, resident of Maitum, South Cotabato, and a laborer of Fleischer and
Company. 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).
4. ID.; MITIGATING CIRCUMSTANCE; VOLUNTARY SURRENDER. — 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.

5. ID.; ID.; PASSION AND OBFUSCATION. — 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 hit rights.

6. ID.; PENALTY; REDUCTION IN THE IMPOSITION THEREOF. — 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.

7. ID.; CIVIL LIABILITY; MODIFICATION. — The civil liability of the appellant

should be modified. In We 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. Thus, the moral and material suffering of appellant and his family
deserves leniency as to his civil liability.

8. ID.; PENAL STATUTE; RETROACTIVE EFFECT APPLIED IN THE CASE AT

BAR. — Article 39 of the Revised Penal Code requires a person convicted of prision
correctional 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 P2.50.
However, the amendment introduced by Republic Act No. 5465 on April 21, 1969 made
the provision of Art. 39 applicable to fines only and not to reparation of the damage
caused, indemnification of consequential damages and costs of proceedings. Considering
that Republic Act 5465 is favorable to the accused who is not a habitual delinquent, it
may be given retroactive effect pursuant to Article 22 of the Revised Penal Code.
GUTIERREZ, Jr., J., separate opinion:

1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; SELL DEFENSE; DEFENSE

OF PROPERTY; INVOKED ONLY WHEN COUPLED WITH SOME FORM OF
ATTACK ON PERSON OF ONE ENTRUSTED WITH SAID 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 front 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.

2. ID.; ID.; ID.; UNLAWFUL AGGRESSION; ABSENT IN CASE AT BAR. — 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 plea of self defense.
I agree with the majority opinion that the crime is homicide but without any privileged
mitigating circumstance.

3. ID.; HOMICIDE; PENALTY; LOWERED BY TWO GENERIC MITIGATING

CIRCUMSTANCES. — Since the appellant is guilty beyond reasonable doubt of two (2)
homicides, mitigated by the two generic mitigating circumstances of voluntary surrender
and obfuscation, without any aggravating circumstance, the maximum sentence the
appellant should have served was prision mayor plus the indemnification to each group of
heirs of Davis Fleischer and of Flamiano Rubia of the sum of Four Thousand (P4,000.00)
Pesos, without subsidiary imprisonment, but without any award for moral damages and
attorney's fees.

DECISION

MAKASIAR, J : p

This is an appeal from the decision of the Court of First Instance of South Cotabato,
Branch I, in Criminal Cases Nos. 1815 and 1816 for murder which, after a joint trial,
resulted in the conviction of the accused in a decision rendered on September 8, 1970,
with the following pronouncement:

"Thus, we have a crime of MURDER qualified by treachery with the

aggravating circumstance of evident premeditation offset by the mitigating
circumstance of voluntary surrender. The proper penalty imposable, therefore, is
RECLUSION PERPETUA (Arts. 248 and 64, Revised Penal Code).
 "Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the
crime of murder,

"(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION

PERPETUA, to indemnify the heirs of the deceased Davis Q. Fleischer in the
sum of P12,000,00 as compensatory damages, P10,000.00 as moral damages,
P2,000.00 as 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 represented 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 Ibañez, 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
shooting' (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. LibLex
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 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. prcd

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. P, p. 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 toward s 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. LLphil

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: LLjur

"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. cdrep

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. Cañete, 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 Ibañez, 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 Ibañez, 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.cdll

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. cdll

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 arresto mayor and fine who has no property with which to meet his civil
liabilities to serve a subsidiary imprisonment at the rate of one (1) day for each P2.50.
However, the amendment introduced by Republic Act No. 5465 on April 21, 1969 made
the provisions of Art. 39 applicable to fines only and not to reparation of the damage
caused, indemnification of consequential damages and costs of proceedings. Considering
that Republic Act 5465 is favorable to the accused who is not a habitual delinquent, it
may be given retroactive effect pursuant to Article 22 of the Revised Penal Code. LibLex

WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT

OF ONLY TWO (2) HOMICIDES, MITIGATED BY THE PRIVILEGED
EXTENUATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL
AS BY TWO (2) GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY
SURRENDER AND OBFUSCATION, WITHOUT ANY AGGRAVATING
CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN
IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO INDEMNIFY
EACH GROUP OF HEIRS OF DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN
THE SUM OF FOUR THOUSAND (P4,000.00) PESOS, WITHOUT SUBSIDIARY
IMPRISONMENT AND WITHOUT ANY AWARD FOR MORAL DAMAGES AND
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.

Aquino, J., is on leave.

Plana, J., concur in the result.

Separate Opinions
ABAD SANTOS, J., dissenting:

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

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. prLL

In the case now before Us, there is absolutely no evidence that an attack was attempted,
much less made upon the person of appellant. The mere utterance "No, gademit, proceed,
go ahead" is not the unlawful aggression which entitles appellant to the pela of self-
defense. I agree with the majority opinion that the crime is homicide but without any
privileged mitigating circumstance.

Therefore, since the appellant is guilty beyond reasonable doubt of two (2) homicides,
mitigated by the two generic mitigating circumstances of voluntary surrender and
obfuscation, without any aggravating circumstance, the maximum sentence the appellant
should have served was prision mayor plus the indemnification to each group of heirs of
Davis Fleischer and of Flamiano Rubia of the sum of Four Thousand (P4,000.00) Pesos,
without subsidiary imprisonment, but without any award for moral damages and
attorney's fees. llcd

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.

||| (People v. Narvaez, G.R. Nos. L-33466-67, [April 20, 1983], 206 PHIL 314-333)

SECOND DIVISION

[G.R. No. 168818. March 9, 2007.]

NILO SABANG, petitioner, vs. THE PEOPLE OF THE

PHILIPPINES, respondent.

DECISION

TINGA, J : p

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 prosecution's
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:SEAHID

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. HIcTDE

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 Petitioner's 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 Randy's 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 Payud's testimony that Butad was holding a glass
and not a gun when he uttered those words. 14

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

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 Butad's waist. He pointed the gun at Butad and fired a
shot at the latter's chest. 17 Payud and Andresa Villamor both saw petitioner fire two (2)
more shots near Butad's 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 Butad's 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 victim's body and not close range as claimed by petitioner. 20

The Court of Appeals affirmed petitioner's 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 Butad's 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. DcSTaC

Petitioner theorizes that the fact that Butad was then fully clothed could have accounted
for the absence of powder burns on Butad's body. He disputes the trial court's 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 Villamor's
testimony is allegedly confined to seeing Butad sprawled on the ground.

The Office of the Solicitor General insists on petitioner's 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 petitioner's insistence on the justifying
circumstance of defense of relative deserves merit. cIaHDA

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 petitioner's 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 son's
life. Payud unequivocally testified that petitioner even dismissed Butad's utterance
saying, "Just try to shoot my child because I'll never fight for him because he is a spoiled
brat."

This indicates to us that petitioner did not consider Butad's 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 petitioner's 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 Butad's 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 EISCaD

On this point, the defense's 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 prosecution's 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, Butad's body did not have any powder
burns. In response to the court's queries, Dr. Calipayan testified:

COURT'S 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 Butad's 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 defense's theory of
accidental firing. 38ScaEIT

On the credibility of the prosecution's witnesses, the defense questions Payud's 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 o'clock 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.

Mahusay's 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 Payud's 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, attorney's 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 TDcAaH

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. CIAHDT

SO ORDERED.

Quisumbing, Carpio, Carpio-Morales and Velasco, Jr., JJ., concur.

Footnotes

1.TSN, May 28, 1999, pp. 6-10, 15; August 21, 1997, p. 8.
2.TSN, August 21, 1997, pp. 8-9.

3.TSN, May 28, 1999, p. 30.

4.Records, pp. 160-161.

5.Id. at 159.

6.TSN, May 28, 1999, pp. 13-14.

7.TSN, December 4, 1998, pp. 8-9.

8.TSN, February 11, 1999, p. 15.

9.Id. at 16.

10.TSN, August 24, 1998, p. 16; May 28, 1999, p. 21.

11.TSN, May 28, 1999, pp. 28-30.

12.TSN, August 24, 1998, pp. 17-20.

13.TSN, August 21, 1997, pp. 8-9.

14.TSN, June 16, 1997, p. 10.

15.TSN, August 21, 1997, p. 10.

16.TSN, June 16, 1997, p. 11; August 21, 1997, p. 10.

17.TSN, August 21, 1997, pp. 11-13.

18.Id. at 13; TSN, June 16, 1997, pp. 14-15.

19.Records, pp. 406-410. The dispositive portion of the Judgment reads:

Wherefore, the Court finds the accused Nilo Sabang GUILTY beyond reasonable doubt of the
crime of homicide as charged, and hereby penalizes him after appreciating one
mitigating circumstance of voluntary surrender, to an indeterminate imprisonment of 8
years and 1 day prision mayor as minimum to 12 years and 1 day reclusion temporal as
maximum, and to pay the offended party the sum of P50,000.00 as indemnity; sum of
P50,000.00 as burial expense; the sum of P180,000.00 as loss of income at a reasonable
life expectancy of the victim at 3 years; the sum of P100,000.00 for moral damages;
and P40,000.00 as attorney's fees including P1,000.00 per appearance.
If the accused was detained, the period of his detention shall be credited to him in full if he
abides by the terms for convicted prisoners, for only 4/5 thereof.

SO ORDERED.

20.TSN, August 4, 1999, pp. 12-17.

21.Rollo, pp. 30-38; Penned by Associate Justice Pampio A. Abarintos and concurred in by
Associate Justices Mercedes Gozo-Dadole and Ramon M. Bato, Jr.

22.Id. at 39-40.

23.Id. at 3-29.

24.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.

2. Anyone who acts in defense of the person or rights of his spouses, ascendants, descendants,
or legitimate, natural, or adopted brothers or sisters or his relatives by affinity in the
same degrees, and those by consanguinity within the fourth civil degree, provided that
the first and second requisites prescribed in the next preceding circumstance are
present, and the further requisite, in case the provocation was given by the person
attacked, that the one making defense had no part therein.

25.Rollo, pp. 55-69.

26.REVISED PENAL CODE, Art. 11.

27.People v. Ventura, G.R. Nos. 148145-46, July 5, 2004, 433 SCRA 389, 409.

28.Cabuslay v. People, G.R. No. 129875, September 30, 2005, 471 SCRA 241, 256-257.

29.People v. Alba, 425 Phil. 666 (2002).

30.People v. Barnuevo, 418 Phil. 521 (2001).

31.Records, p. 25.
 32.TSN, August 24, 1998, p. 20.

33.TSN, May 28, 1999, pp. 38 and 44.

34.PEDRO P. SOLIS, LEGAL MEDICINE (1987), p. 354.

35.Id. at 357-358. A short range fire covers a distance of 1 to 15 cm while a medium range fire
covers a distance of more than 15 cm but less than 60 cm.

36.Id. at 350.

37.TSN, August 4, 1999, pp. 15-16.

38.PEDRO P. SOLIS, LEGAL MEDICINE, supra note 34 at 354.

39.TSN, May 5, 1998, pp. 8-10, 18.

40.TSN, August 21, 1997, pp. 6-7.

41.TSN, June 16, 1997, pp. 13-15; 36-37.

42.REVISED PENAL CODE, Art. 64(2).

43.People v. Opuran, G.R. Nos. 147674-75, March 17, 2004, 425 SCRA 654, 673.

44.Butad's widow testified that his income is P5,000.00 a month; RTC Records, p. 408.

45.Marzonia v. People, G.R. No. 153794, June 26, 2006, 492 SCRA 627.

46.CIVIL CODE, Art. 2230.

||| (Sabang v. People, G.R. No. 168818, [March 9, 2007], 546 PHIL 673-685)

FIRST DIVISION

[G.R. No. 153875. August 16, 2006.]

 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO
DAGANI y REYES and OTELLO SANTIANO Y LEONIDA,
accused-appellants.

DECISION

AUSTRIA-MARTINEZ, J : p

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 Javier's 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. CDESIA

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 . . . .

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] attorney's 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:

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 attorney's 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 C A affirmed the findings of fact as well as the salient portions of the RTC Decision,
but deleted the award of attorney's 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. HEIcDT

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 one's 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 Dagani's 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 hands of 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
Santiano's 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 Marinay's
testimony that PNR security officers work in two 12-hour shifts, from 7:00 a.m.
to 7:00 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. SCHTac

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 conspiracy because 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 Dagani's 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 latter' s hands, was for the purpose of enabling Santiano to shoot at Javier. The
prosecution had the burden to show Dagani's 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 Dagani's 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 . . .

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 of prision 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 attorney's 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 the foregoing 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 husband's 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 attorney's 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. TIAEac

SO ORDERED.

Panganiban, C.J., Ynares-Santiago, Callejo, Sr. and Chico-Nazario, JJ., concur.

Footnotes

1.Penned by Associate Justice Juan Q. Enriquez, Jr., with Associate Justices Eugenio S.
Labitoria and Mariano C. Del Castillo, concurring, CA rollo, pp. 203-210.

2.Records, p. 1.

3.CA rollo, pp. 88-89.

4.Id. at 121.

5.Id. at 209.

6.Rollo, pp. 6-7.

7.Id. at 3-87.

8.CA rollo, pp. 121-122.

9.Id. at 123-124.

10.People v. Dela Cruz, 400 Phil. 872, 878 (2000); Cabuslay v. People, G.R. No. 129875,
September 30, 2005, 471 SCRA 241, 253.
11.People v. Dela Cruz, supra note 10; Toledo v. People, G.R. No. 158057, September 24,
2004, 439 SCRA 94, 109; People v. Escarlos, 457 Phil. 580, 596 (2003).

12.People v. Dela Cruz, supra note 10.

13.People v. Escarlos, supra note 11, at 595; People v. Sarmiento, G.R. No. 126145, April 30,
2001, 357 SCRA 447, 457.

14.People v. Escarlos, supra note 11, at 596; People v. Damitan, 423 Phil. 113, 123 (2001).

15.CA rollo, p. 206.

16.People v. Escarlos, supra note 11, at 597; People v. Calabroso, 3 94 Phil. 658, 670 (2000);
People v. Maalat, 341 Phil. 200, 206 (1997).

17.People v. Escarlos, supra note 11, at 597; People v. Rabanal, 402 Phil. 709, 715 (2001).

18.People v. Escarlos, supra note 11, at 597; People v. Geneblazo, 4 14 Phil. 103, 110 (2001).

19.People v. Escarlos, id.

20.Cabuslay v. People, supra note 10, at 262.

21.See Senoja v. People, G.R. No. 160341, October 19, 2004, 440 SCRA 695, 708; People v.
Escarlos, supra note 11, at 597; People v. Ubaldo, 419 Phil. 718, 730 (2001); People v.
Basadre, G.R. No. 131851, February 22, 2001, 352 SCRA 573, 585; People v. More,
378 Phil. 1153, 1161 (1999); People v. Real, 367 Phil. 524, 535-536 (1999).

22.CA rollo, p. 51.

23.Id. at 75.

24.Id.

25.Id. at 120.

26.See People v. Escarlos, supra note 11; People v. Dela Cruz, supra note 10, at 879; People
v. Babor, 330 Phil. 923, 930-931 (1996).

27.Toledo v. People, supra note 11, at 110.

28.Senoja v. People, supra note 21, at 703; People v. Noay, 357 Phil. 295, 308 (1998).

29.CA rollo, p. 124.

30.Id. at 125, citing, e.g., People v. Mojica, 42 Phil. 784.

31.People v. Catbagan, G.R. Nos. 149430-32, February 23, 2004, 423 SCRA 535, 553; People
v. Peralta, 403 Phil. 72, 89 (2001); People v. Ulep, 395 Phil. 78, 87 (2000); People v.
Belbes, 389 Phil. 500, 509 (2000).

32.CA rollo, p. 207.

33.See People v. Catbagan, supra note 31, at 554.

34.Supra note 31.

35.Id. at 92.

36.CA rollo, p. 88.

37.Id. at 207-208.

38.See People v. Legaspi, 387 Phil. 108 (2000).

39.Crisostomo v. Sandiganbayan, G.R. No. 152398, April 14, 2005, 456 SCRA 45, 73; People
v. Agda, 197 Phil. 306, 314 (1982).

40.Crisostomo v. Sandiganbayan, supra note 39, at 73-74; People v. Dorico, 153 Phil. 458,
475 (1973).

41.Crisostomo v. Sandiganbayan, supra note 39, at 74.

42TSN, Hearing of June 18, 1990, p. 10.

43.CA rollo, pp. 87-88.

44.Id. at 208.

45.People v. Caratao, 451 Phil. 588, 606-607 (2003); People v. Gonzalez, Jr., 411 Phil. 893,
915 (2001); People v. Cabodoc, 331 Phil. 491, 510 (1996); People v. Malabago, 333
Phil. 20, 34 (1996).

46.People v. Gonzalez, Jr., supra.

47.Id.; People v. Cadag, 112 Phil. 314, 319 (1961); People v. Ardisa, 154 Phil. 229, 243
(1974); People v. Genial, G.R. No. 105692, December 7, 1993, 228 SCRA 283, 291.

48.People v. Gonzalez, Jr., supra note 45, at 915-916; People v. Caratao, supra note 45, at
607; Luces v. People, 443 Phil. 636, 646 (2003).
 49.People v. Gonzalez, Jr., supra note 45, at 916; Sison v. People, 320 Phil. 112, 135 (1995);
People v. Abapo, G.R. Nos. 93632-33, December 28, 1994, 239 SCRA 469, 479.

50.People v. Gonzalez, Jr., supra note 45, at 917; People v. Manalo, G.R. No. L-55177,
February 27, 1987, 148 SCRA 98, 108.

51.People v. Gonzalez, Jr., supra note 45.

52.People v. Caratao, supra note 45, at 607; People v. Gonzalez, Jr., supra note 45; People v.
Cabodoc, supra note 45, at 510-511; People v. Malabago, supra note 45.

53.See People v. Ulep, supra note 31, at 88.

54.People v. Caratao, supra note 45, at 608; People v. Fernandez, 434 Phil. 224, 239 (2002).

55.See People v. Tabion, G.R. No. L-32629, October 23, 1979, 93 SCRA 566, 572; People v.
Madrid, 88 Phil. 1, 15 (1951); ANTONIO L. GREGORIO, FUNDAMENTALS OF
CRIMINAL LAW REVIEW 114 (1997).

56.People v. Malinao, G.R. No. 128148, February 16, 2004, 423 SCRA 34, 53; People v.
Solamillo, 452 Phil. 261, 281 (2003).

57.TSN, April 20, 1990, pp. 1-2; TSN April 30, 1990, pp. 1-2; Exhibit "X;" RTC Decision, CA
rollo, p. 59; Formal Offer of Evidence of the Prosecution dated April 26, 1990, p. 6.

58.Moreover, under Article 2208 of the Civil Code, attorney's fees may be recovered when
exemplary damages have been awarded. See, e.g., Nueva España v. People, G.R. No.
163351, June 21, 2005, 460 SCRA 547, 560.

59.People v. Ibañez, 455 Phil. 133, 166-167 (2003).

60.Nueva España v. People, supra note 58, at 558; People v. Malinao, supra note 56, at 55.

||| (People v. Dagani y Reyes, G.R. No. 153875, [August 16, 2006], 530 PHIL 501-524)

FIRST DIVISION

[G.R. No. 165483. September 12, 2006.]

RUJJERIC Z. PALAGANAS, 1 petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.
 DECISION

CHICO-NAZARIO, J : p

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 Appellant's 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 Café 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
brother's 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 attorney's
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 Café 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 (5'6"-5'8"); 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

Petitioner's 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. . . . .

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 defendant's 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

Petitioner's 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 petitioner's 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 petitioner's 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, petitioner's 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.

Petitioner's 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 latter's 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 court's 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 offender's 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.

Panganiban, C.J., Ynares-Santiago, Austria-Martinez and Callejo, Sr., JJ., concur.

Footnotes

1.Also referred to as Rojeric Palaganas y Zarate in the Informations, and Decisions of the trial
court and the Court of Appeals.

2.Music by Paul Anka; Sung and popularized by Frank Sinatra.

3.Rollo, pp. 9-23.

4.Penned by Associate Justice Vicente S.E. Veloso with Associate Justices Roberto A. Barrios
and Amelita G. Tolentino, concurring; rollo, pp. 24-43.

5.Penned by Judge Modesto C. Juanson; id. at 44-75.

6.Records, Volume I, pp. 1-2, Volume II, pp. 1-2 and Volume III, p. 1.

7.RULES AND REGULATIONS ON: (A) BEARING, CARRYING OR TRANSPORTING

FIREARMS OR OTHER DEADLY WEAPONS; (B) SECURITY PERSONNEL OR
BODYGUARDS; (C) BEARING ARMS BY ANY MEMBER OF SECURITY OR
POLICE ORGANIZATION OF GOVERNMENT AND OTHERS; (D)
ORGANIZATION OR MAINTENANCE OF REACTION FORCES DURING THE
ELECTION PERIOD IN CONNECTION WITH THE MAY 11, 1998 ELECTIONS.
(Promulgated on December 23, 1997).

8.Omnibus Election Code of the Philippines (December 3, 1985), Article XXII — ELECTION
OFFENSES, Sec. 261. Prohibited Acts. — par. (p): Deadly weapons — Any person
who carries any deadly weapon in the polling place and within a radius of one hundred
meters thereof during the days and hours fixed by law for the registration of voters in
the polling place, voting, counting of votes, or preparation of the election returns.
However, in cases of affray, turmoil, or disorder, any peace officer or public officer
authorized by the Commission to supervise the election is entitled to carry firearms or
any other weapon for the purpose of preserving order and enforcing the law . . . . Par.
(q) Carrying firearms outside residence or place of business. — Any person who,
although possessing a permit to carry firearms, carries any firearms outside his
residence or place of business during the election period, unless authorized in writing
by the Commission . . . .

9.Rollo, pp. 45-47.

10.Records, Volume I, p. 43; Volume II, p. 39, and Volume III, p. 41.

11.Id. at 35-36; id. at 43-44; and id. at 52.

12.Id. at 37 and id. at 45.

13.Rollo, pp. 101-119.

14.CA rollo, pp. 123-148.

15.Rollo, pp. 44-75.

16.Id.
17.Id.

18.Id. at 68-69.

19.Id. at p. 69.

20.Id. at pp. 69-70.

21.Id. at pp. 70-71.

22.Id. at 71-72.

23.Id. at 72.

24.Id. at 73-75.

25.Id. at 39.

26.Id. at 39-41.

27.Id. at 41-42.

28.Id. at 17.

29.Id. at 17-18.

30.Id. at 18-19.

31.People v. Alconga, 78 Phil. 366, 374 (1947).

32.People v. Arizala, 375 Phil. 666, 675 (1999).

33.People v. Bausing, G.R. No. 64965, 8 July 1991, 199 SCRA 355, 361.

34.People v. Crisostomo, 195 Phil. 162, 172 (1981).

35.Senoja v. People, G.R. No. 160341, 19 October 2004, 440 SCRA 695, 703.

36.Records, TSN, 2 July 1998, pp. 7-10.

37.CA rollo, p. 132.

38.Roca v. People., G.R. No. 114917, 29 January 2001, 350 SCRA 414, 423.

39.Id.
40.Rollo, pp. 18-19.

41.CA rollo, p. 40, records, TSN, 6 July 1998, pp. 8-12.

42.Id. at 41-42, records, TSN, 27 July 1998, pp. 2-8.

43.Id.

44.Id. at 42-43; records, TSN, 27 July 1998, pp. 2-8.

45.Rollo, p. 117.

46.Id.

47.People v. Cario, G.R. No. 123325, 31 March 1998, 288 SCRA 404, 417.

48.People v. Gallego, 453 Phil. 825, 839 (2003).

49.People v. Caratao, 451 Phil. 588, 602 (2002).

50.People v. Encomienda, 150-B Phil. 419, 433-434 (1972).

51.Rollo, p. 70.

52.Rendon v. People, G.R. No. 127089, 19 November 2004, 443 SCRA 142, 146.

53.People v. Castillano, Sr., 448 Phil. 482, 499-500 (2003).

54.People v. Castillo, G.R. No. 118912, 28 May 2004, 430 SCRA 40, 50.

55.People v. Costales, 424 Phil. 321, 334 (2002).

56.People v. Castillo, 426 Phil. 752, 768 (2002).

57.People v. Asuela, 426 Phil. 428, 452 (2002).

58.Supra note 43.

59.Id.

60.Rule 110, Sections 8 and 9 of the Revised Rules on Criminal Procedure.

61.People v. Agguihao, G.R. No. 104725, 10 March 1994, 231 SCRA 9, 21.

62.Supra note 59.

63.CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION,
MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION, OF
FIREARMS, AMMUNITION OR EXPLOSIVES; AND IMPOSING STIFFER
PENALTIES FOR CERTAIN VIOLATIONS THEREOF AND FOR RELEVANT
PURPOSES.

64.AN ACT AMENDING THE PROVISIONS OF PRESIDENTIAL DECREE NO. 1866, AS

AMENDED, ENTITLED: CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL
POSSESSION, MANUFACTURE, DEALING IN, ACQUISITION OR
DISPOSITION, OF FIREARMS, AMMUNITION OR EXPLOSIVES; AND
IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS THEREOF AND
FOR RELEVANT PURPOSES.( 6 June 1997)

65.Rollo, pp. 71-72.

66.Id. at 72.

67.Id.

68.People v. Lumilan, 380 Phil. 130, 145 (2000); People v. Castillo, 382 Phil. 503 (2002);
People v. Malinao, G.R. No. 128148, 16 February 2004, 423 SCRA 34, 51.

69.ART. 64. Rules for the application of penalties which contain three periods. — In cases in
which the penalties prescribed by law contain three periods, whether it be a single
divisible penalty or composed of three different penalties, each one of which forms a
period in accordance with the provisions of articles 76 and 77, the courts shall observe
for the application of the penalty the following rules, according to whether there are or
are no mitigating or aggravating circumstances:

xxx xxx xxx

3. When only an aggravating circumstance is present in the commission of the act, they shall
impose the penalty in its maximum period.

70.People v. Bangcado, G.R. No. 132330, 28 November 2000, 346 SCRA 189, 213; People v.
Panado, G.R. No. 133439, 26 December 2000, 348 SCRA 679, 691.

71.Nueva España v. People, G.R. No. 163351, 21 June 2005, 460 SCRA 547, 556.

72.The rule is that documentary evidence should be presented to substantiate a claim for loss of
earning capacity. By way of exception, damages therefore may be awarded despite the
absence of documentary evidence if there is testimony that the victim was either (1)
self-employed, earning less than the minimum wage under current labor laws, and
judicial notice is taken of the fact that in the victim's line of work, no documentary
evidence is available; of (2) employed as a daily-wage worker earning less than the
minimum wage under current labor laws. Id. at 556.
 73.People v. Manambay, G.R. No. 130684, 5 February 2004, 422 SCRA 73, 90.

74.Lamis v. Ong, G.R. No. 148923, 11 August 2005, 466 SCRA 510, 519-520.

75.ART. 51. Penalty to be imposed upon principals of attempted crime. — The penalty lower
by two degrees than that prescribed by law for the consummated felony shall be
imposed upon the principals in an attempt to commit a felony.

76.ART. 50. Penalty to be imposed upon principals of a frustrated crime. — The penalty next
lower in degree than that prescribed by law for the consummated felony shall be
imposed upon the principal in a frustrated felony.

77.ART. 249. Homicide. — Any person who, not falling within the provisions of article 246
shall kill another without the attendance of any of the circumstances enumerated in the
next preceding article, shall be deemed guilty of homicide and be punished by reclusion
temporal.

SECOND DIVISION

[G.R. Nos. L-30527-28. March 29, 1974.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PIO

RICOHERMOSO, SEVERO PADERNAL, JUAN PADERNAL,
ROSENDO PERPEÑAN, MACARIO MONTEREY and RITO
MONTEREY, defendants, JUAN PADERNAL and SEVERO
PADERNAL, defendants-appellants.

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.

DECISION

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
Perpeñan, 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 Silañgan, 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 Silañgan, he stopped at Ricohermoso's

place. It was about two o'clock in the afternoon. I 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 1/2 inches, directed anteriorly, 3
inches deep.

3. Wound, incised, waist, dorsal, 1 1/2 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 so 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.

Zaldivar (Chairman), Fernando, Barredo and Fernandez, JJ., concur.

Antonio, J., did not take part.

||| (People v. Padernal, G.R. Nos. L-30527-28, [March 29, 1974], 155 PHIL 412-420)

FIRST DIVISION

[G.R. No. L-18660. December 22, 1922.]

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs. FELIPE DELIMA, defendant-appellant.

Tancinco & Rosales for the appellant.

Attorney-General Villa-Real for appellee.

SYLLABUS

1. CRIMINAL LAW; HOMICIDE; PERFORMANCE OF A DUTY. — A

policeman finds a fugitive from jail and demands his surrender. The latter, instead of
doing so, attacks the policeman with a piece of bamboo, pointed does not hit him. The
criminal runs away without parting with his weapon. The policeman goes after him
and again fires against him, this time hitting and killing him. Held: That the
policeman did not commit any crime, that the killing was done in the performance of
a duty, and, therefore, under article 8, No. 11, of the Penal Code, he must be
acquitted.

DECISION
ROMUALDEZ, J : p

Lorenzo Napilon had escapes 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.
The 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 prove to be fatal,
was justified by the circumstances.
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.
Araullo, C.J., Street, Malcolm, Avanceña, Villamor, Ostrand, and Johns, JJ.,
concur.
||| (People v. Delima, G.R. No. L-18660, [December 22, 1922])

SECOND DIVISION

[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.

SYLLABUS
 1. CRIMINAL LAW; MURDER, SERIOUS PHYSICAL INJURIES AND
EVASION THRU NEGLIGENCE; PRISONERS GUARD'S NEGLIGENCE. — The
evidence is conclusive to the effect that the escape of prisoner E. L. was due to the
negligence of the appellant. The six prisoners were supposed to work in the plaza of
the provincial capitol and to return to jail after said work, but appellant allowed them
instead to go to the nursery to gather gabi, without any apparent authority to do so.
2. ID.; ID.; ID.; — 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 by the trial court is in accordance with law.
3. ID.; ID.; PRISONERS' GUARD; ESCAPE OF PRISONERS TO BE
AVOIDED; FIRING AT OR KILLING PRISONERS WITHOUT ABSOLUTE
NECESSITY IS ILLEGAL AND IMPROPER. — There is no question that the
escape of L scared appellant, according to him, because of the experience of the
guards who were dismissed from office or their custody, and that it was his duty to
fire against the prisoners if he wanted to be exempt from any responsibility. Even if
appellant sincerely believed, although erroneously, that in firing the shots he acted in
the performance of his official duty, the circumstance of the case show that there was
no necessity for him to fire directly against the prisoners, so as to seriously wound one
of them and kill instantaneously another. While custodians of prisoners should take
care to avoid the latter's escape, only absolute necessity would authorize them to fire
against them. Theirs is the burden of proof as to such necessity. The summary
liquidation of prisoners, under flimsy pretexts of attempts of escape, which has been
and is being practiced in dictatorial systems of government, has always been and is
shocking to the universal conscience of humanity.
4. ID.; ID.; ID.; ID.; ID.; HUMAN LIFE, VALUE OF; MANDATE OF
GOSPEL "THOU SHALT NOT KILL." — Human life is valuable, albeit, sacred.
Cain has been the object of unrelentless curse for centuries and millennia and his
name will always be remembered in shame as long as there are human generations
able to read the Genesis. Twenty centuries of Christianity have not been enough o
make less imperative the admonition that " Thou shalt not kill," uttered by the greatest
pundit and prophet of Israel. Laws, constitutions, world charters have been written to
protect human life. Still it is imperative that all men be imbued with the spirit of the
Sermon on the Mount that the words of the gospels be translated into reality, and that
their meaning fill all horizons with the eternal aroma of encyclic love of mankind.

DECISION

PERFECTO, J : p
 The witnesses in this case testified in substance as follows:
PROSECUTION
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. Lagata, 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 prisoners 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 national 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 meters 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 and the rest were with Lagata. Tipace was about three or four
meters 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 saw that my other
companions 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. (10). Then
he brought me to the Samar Provincial 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 prisoners 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." (13-14). 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 Ibañez, 25, married, detained prisoner, Zumarraga, Samar. — On
October 3, 1946, he was in the provincial jail as a detained prisoner. After breakfast,
six prisoners were called: Epifanio Labong, Ceferino Tipace, Eustaquio Galet, Jesus
Mañoso, Eusebio Abria and the witness, Mariano Ibañez. 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 to the
nursery to gather gabi, 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 with talahib plants growing thereon. While the prisoners were
picking gabi, Lagata was standing by the side of a mango tree. At the call of Lagata,
only five prisoners assembled. Labong was absent, and Lagata ordered 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 Abria
then went to the camote plantation. He found footprints and he called Ignacio Lagata
to inform him that he saw footprints. On account of this report of Eusebio Abria that
he saw flattened grass and that he was unable to look for Epifanio Labong so Ignacio
Lagata fired at him and he was hit on the left arm." He was at about three meters from
Lagata. (22). The witness was at the left side of Ceferino Tipace at about two meters
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). "Once we 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 meters 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.
(23-24). One morning, Lagata gave the witness fistic blows on the abdominal region
and kicked him at the back, because the previous 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 towards
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 prisoners 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 meters away from 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 did not answer." (39)
The talahib plants growing in the place "were taller than myself." Lagata "ordered us
to search for Epifanio Labong. We went around the place and then crossed the
national highway and went up the mountain until we reached to a 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 telling him 'Mano, I am wounded,' and immediately
placed his hand at his wound and then got near to 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 guards." His companion then was Jesus Mañoso. 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 the 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 Mañoso ran away with the witness, but
Ceferino Tipace and Mariano Ibañez 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 resusciting 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. (46 47). 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 was completely cut."
(49). "Powder-burn was noticeable in all the vital parts of the tissues destroyed from
outward and inward." (50).
DEFENSE
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 around
the mango tree. (65). While he was looking back, Epifanio Labong took advantage
and escaped. "I did not discover that but when I called them to assemble I found out
that one was missing. I asked the rest of the prisoners as to where Epifanio Labong
was. I told them that what shall we do he is already far and they said that in that place
there is plenty of gabi. 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 we
went up. When we reached above, they were already far from me. 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 Ibañez 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." (6769). The witness saw Ibañez 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 Ibañez. 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." Ibañez
testified against the accused because the latter fired at his father-in-law. (72). One
day, the accused maltreated Ibañez. 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
sidewise 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 (P2,000) and pay the costs of this
action;
"(b) For serious physical injuries (Case No. 810) — An indeterminate
imprisonment of two (2) years and four (4) months as minimum to four (4)
years, nine (9) months and ten (10) days of prision correccional as maximum
and to pay the costs of this action; and.
"(c) For evasion through negligence (Case No. 811) — An indeterminate
imprisonment of two (2) months and one (1) day of arresto mayor as minimum
to one (1) year, one (1) month and ten (10) days of prision correccional as
maximum, and to pay the costs," (p. 45, rec.)"
The evidence is conclusive to the effect that the escape of prisoner Epifanio
Labong was due to the negligence of the appellant. The six prisoners were supposed
to work in the plaza of the provincial capitol and to return to jail after said work, but
appellant 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 the 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 he was
only three meters 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 five meters
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, and with 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 been 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 Ibañez) 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 down
and give up your arm. He did not heed my advice.
"Inasmuch as he did not heed my advice so I fired at him.
"His direction while he was running was 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 policemen 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). (Italics 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 or
that he attempted to escape. According to Lagata, "he was running towards and then
around me." (Italics 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 guards 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 prisoners if he wanted to be exempt from any
responsibility. Even if appellant sincerely believed, although erroneously, 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 to seriously wound one of them and kill instantaneously another. While
custodians of prisoners should take all care to avoid the latter's escape, only absolute
necessity would authorize them to fire against them. Theirs is the burden of proof as
to such necessity. The summary liquidation of prisoners, under flimsy pretexts of
attempts of escape, which has been and is being practiced in dictatorial systems 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 unrelentless
curse for centuries and millennia and his name will always be remembered in shame
as long as there are human generations able to read the Genesis. Twenty centuries of
Cristianity have not been enough to make less imperative the admonition that "Thou
shalt not kill," uttered by the greatest pundit and prophet of Israel. Laws,
constitutions, world charters have been written to protect human life. Still it is
imperative that all men be imbued with the spirit of the Sermon on the Mount that the
words of the gospels be translated into reality, and that their meaning fill all horizons
with the eternal aroma of encyclic love of mankind.
As recommended by the prosecution, appellant is entitled to the benefit of the
mitigating circumstance of incomplete justifying circumstance defined in paragraph 5
of Article 11 of the Revised Penal Code. Consequently, appellant should be sentenced
for homicide to an indeterminate penalty of six years and one 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.
Feria, Briones, Tuason and Reyes, JJ., concur.
Moran, C. J., concurs in the result.

Separate Opinions
PARAS, J., dissenting:

The accused, Ignacio Lagata, a provincial guard of Catbalogan, Samar, was in

charge of six prisoners charged with murder, assigned to clean the capitol plaza of
Samar. On their return to the prison compound, he gave said prisoners permission to
gather gabi, in the presence of the accused who remained at a distance of about six
meters. Instantly, he discovered that prisoner Epifanio Labong had escaped. The
accused then asked the remaining prisoners to help in locating him, but in so doing he
was led by said prisoners to places where escape was much easier. The accused fired
his gun in the air in order to stop the fleeing prisoners. Some of the prisoners were
already going to the nearby mountain apparently in attempt also to escape.
Whereupon the accused decided to aim his gun at those who were fleeing until one of
them was hurt and another was killed.
The question now is, under the circumstances, what was the duty of the
appellant guard? If he allowed them to escape, he would have been charged with
infidelity in the custody of prisoners. He was provided with a gun for some purpose.
In my opinion, he made use of it legally in the performance of his official duty.
(United States vs. Magno, 8 Phil., 320, 321; People vs. Delima, 46 Phil., 738.) To
hold otherwise would be to plainly encourage the escape of prisoners, what with the
many jailbreaks that had already taken place.
 As stated in the majority opinion, appellant fired at Eusebio Abria because, as
the latter himself stated on direct examination at the trial, he did not approach the
appellant guard when called. Indeed, he further stated that "when I saw my other
companions run away, I ran also."
Eustaquio Galet, a prosecution witness, on direct question by counsel de oficio,
stated: "I heard Epifanio Labong ask Lagata to accompany the group to the nursery to
gather gabi." "About how many minutes was the interval between the shot of Eusebio
Abria and the next shot that you heard?" Galet answered: "About 15 minutes."
The accused fired three shots, one in the air to call the prisoners back or as a
warning that they should not run away; the second hit Abria; and the third hit
Ceferino Tipace. "And it was during the time that the rest were running when you
heard the next shot and you ran too?" Asked this question, Abria answered: "Yes,
Sir." As may be seen, the testimony of the very witness for the prosecution confirms
the statement of the accused that he fired at Abria when he was running away with the
rest of the prisoners. (See p. 71, t. s. n.)

PABLO, M.:

Concurro con la absolucion del acusado.

BENGZON, J.:

I also vote to acquit.

MONTEMAYOR, J.:

I concur in this opinion of Mr. Justice Paras.

||| (People v. Lagata, G.R. Nos. L-1940-42, [March 24, 1949], 83 PHIL 150-163)

FIRST DIVISION

[G.R. No. 149152. February 2, 2007.]

RUFINO S. MAMANGUN, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION
GARCIA, J : p

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, " Magnanakaw . . .
Magnanakaw." Several residents responded and thereupon chased the suspect who
entered the yard of Antonio Abacan and proceeded to the rooftop of Abacan's house.
At about 9:00 o'clock 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. AacCHD

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 layman's 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 victim's 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 Abacan's 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 o'clock that
same evening.

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

PO2 Mamangun, along with PO2 Cruz and PO2 Diaz, 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 latter's 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,
PO1 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.
STaIHc

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
petitioner's 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 correccional 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. HCSDca
As we see it, petitioner's 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 Sandiganbayan's 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 victim's 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, petitioner's 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 petitioner's mind. We are thus inclined to believe that the alleged
actuation of Contreras, which could have justified petitioner's 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. CAETcH

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 Ayson's 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 Ayson's 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, petitioner's 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
petitioner's 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.

Puno, C.J., Sandoval-Gutierrez, Corona and Azcuna, JJ., concur.

Footnotes

1.Penned by Associate Justice Nicodemo T. Ferrer with Associate Justices Narciso S. Nario
and Rodolfo G. Palatao, concurring; Rollo, pp. 25-46.

2.Sandiganbayan Record, Vol. I, p. 1.

3.As culled from the Sandiganbayan decision, Id. at 29.

4.Supra note 1.

5.Resoso v. Sandiganbayan, G.R. No. 124140, November 25, 1999, 319 SCRA 238, 244.

6.TSN, p. 11; Hearing on May 27, 1996.

7.People v. Cawaling, G.R. No. 117970, July 28, 1998, 293 SCRA 267.

8.TSN, pp. 22, 29. Hearing on March 23, 1995.

 9.People v. Givera, G.R. No. 132159, January 18, 2001, 349 SCRA 513, 530. ADCIca

10.TSN, pp. 9-10, March 23, 1996.

11.Ibid at p. 20.

12.Ibid at p. 15.

||| (Mamangun v. People, G.R. No. 149152, [February 2, 2007], 543 PHIL 42-53)

FIRST DIVISION

[G.R. No. 153875. August 16, 2006.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO

DAGANI y REYES and OTELLO SANTIANO Y LEONIDA,
accused-appellants.

DECISION

AUSTRIA-MARTINEZ, J : p

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 Javier's 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. CDESIA

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 . . . .

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] attorney's 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:

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 attorney's 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 C A affirmed the findings of fact as well as the salient portions of the RTC Decision,
but deleted the award of attorney's 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. HEIcDT

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 one's 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 Dagani's 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 hands of 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
Santiano's 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 Marinay's
testimony that PNR security officers work in two 12-hour shifts, from 7:00 a.m.
to 7:00 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. SCHTac

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 conspiracy because 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 Dagani's 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 latter' s hands, was for the purpose of enabling Santiano to shoot at Javier. The
prosecution had the burden to show Dagani's 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 Dagani's 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 . . .

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 of prision 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 attorney's 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 the foregoing 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 husband's 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 attorney's 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. TIAEac

SO ORDERED.

Panganiban, C.J., Ynares-Santiago, Callejo, Sr. and Chico-Nazario, JJ., concur.

Footnotes
1.Penned by Associate Justice Juan Q. Enriquez, Jr., with Associate Justices Eugenio S.
Labitoria and Mariano C. Del Castillo, concurring, CA rollo, pp. 203-210.

2.Records, p. 1.

3.CA rollo, pp. 88-89.

4.Id. at 121.

5.Id. at 209.

6.Rollo, pp. 6-7.

7.Id. at 3-87.

8.CA rollo, pp. 121-122.

9.Id. at 123-124.

10.People v. Dela Cruz, 400 Phil. 872, 878 (2000); Cabuslay v. People, G.R. No. 129875,
September 30, 2005, 471 SCRA 241, 253.

11.People v. Dela Cruz, supra note 10; Toledo v. People, G.R. No. 158057, September 24,
2004, 439 SCRA 94, 109; People v. Escarlos, 457 Phil. 580, 596 (2003).

12.People v. Dela Cruz, supra note 10.

13.People v. Escarlos, supra note 11, at 595; People v. Sarmiento, G.R. No. 126145, April 30,
2001, 357 SCRA 447, 457.

14.People v. Escarlos, supra note 11, at 596; People v. Damitan, 423 Phil. 113, 123 (2001).

15.CA rollo, p. 206.

16.People v. Escarlos, supra note 11, at 597; People v. Calabroso, 3 94 Phil. 658, 670 (2000);
People v. Maalat, 341 Phil. 200, 206 (1997).

17.People v. Escarlos, supra note 11, at 597; People v. Rabanal, 402 Phil. 709, 715 (2001).

18.People v. Escarlos, supra note 11, at 597; People v. Geneblazo, 4 14 Phil. 103, 110 (2001).

19.People v. Escarlos, id.

20.Cabuslay v. People, supra note 10, at 262.

21.See Senoja v. People, G.R. No. 160341, October 19, 2004, 440 SCRA 695, 708; People v.
Escarlos, supra note 11, at 597; People v. Ubaldo, 419 Phil. 718, 730 (2001); People v.
Basadre, G.R. No. 131851, February 22, 2001, 352 SCRA 573, 585; People v. More,
378 Phil. 1153, 1161 (1999); People v. Real, 367 Phil. 524, 535-536 (1999).

22.CA rollo, p. 51.

23.Id. at 75.

24.Id.

25.Id. at 120.

26.See People v. Escarlos, supra note 11; People v. Dela Cruz, supra note 10, at 879; People
v. Babor, 330 Phil. 923, 930-931 (1996).

27.Toledo v. People, supra note 11, at 110.

28.Senoja v. People, supra note 21, at 703; People v. Noay, 357 Phil. 295, 308 (1998).

29.CA rollo, p. 124.

30.Id. at 125, citing, e.g., People v. Mojica, 42 Phil. 784.

31.People v. Catbagan, G.R. Nos. 149430-32, February 23, 2004, 423 SCRA 535, 553; People
v. Peralta, 403 Phil. 72, 89 (2001); People v. Ulep, 395 Phil. 78, 87 (2000); People v.
Belbes, 389 Phil. 500, 509 (2000).

32.CA rollo, p. 207.

33.See People v. Catbagan, supra note 31, at 554.

34.Supra note 31.

35.Id. at 92.

36.CA rollo, p. 88.

37.Id. at 207-208.

38.See People v. Legaspi, 387 Phil. 108 (2000).

39.Crisostomo v. Sandiganbayan, G.R. No. 152398, April 14, 2005, 456 SCRA 45, 73; People
v. Agda, 197 Phil. 306, 314 (1982).
40.Crisostomo v. Sandiganbayan, supra note 39, at 73-74; People v. Dorico, 153 Phil. 458,
475 (1973).

41.Crisostomo v. Sandiganbayan, supra note 39, at 74.

42TSN, Hearing of June 18, 1990, p. 10.

43.CA rollo, pp. 87-88.

44.Id. at 208.

45.People v. Caratao, 451 Phil. 588, 606-607 (2003); People v. Gonzalez, Jr., 411 Phil. 893,
915 (2001); People v. Cabodoc, 331 Phil. 491, 510 (1996); People v. Malabago, 333
Phil. 20, 34 (1996).

46.People v. Gonzalez, Jr., supra.

47.Id.; People v. Cadag, 112 Phil. 314, 319 (1961); People v. Ardisa, 154 Phil. 229, 243
(1974); People v. Genial, G.R. No. 105692, December 7, 1993, 228 SCRA 283, 291.

48.People v. Gonzalez, Jr., supra note 45, at 915-916; People v. Caratao, supra note 45, at
607; Luces v. People, 443 Phil. 636, 646 (2003).

49.People v. Gonzalez, Jr., supra note 45, at 916; Sison v. People, 320 Phil. 112, 135 (1995);
People v. Abapo, G.R. Nos. 93632-33, December 28, 1994, 239 SCRA 469, 479.

50.People v. Gonzalez, Jr., supra note 45, at 917; People v. Manalo, G.R. No. L-55177,
February 27, 1987, 148 SCRA 98, 108.

51.People v. Gonzalez, Jr., supra note 45.

52.People v. Caratao, supra note 45, at 607; People v. Gonzalez, Jr., supra note 45; People v.
Cabodoc, supra note 45, at 510-511; People v. Malabago, supra note 45.

53.See People v. Ulep, supra note 31, at 88.

54.People v. Caratao, supra note 45, at 608; People v. Fernandez, 434 Phil. 224, 239 (2002).

55.See People v. Tabion, G.R. No. L-32629, October 23, 1979, 93 SCRA 566, 572; People v.
Madrid, 88 Phil. 1, 15 (1951); ANTONIO L. GREGORIO, FUNDAMENTALS OF
CRIMINAL LAW REVIEW 114 (1997).

56.People v. Malinao, G.R. No. 128148, February 16, 2004, 423 SCRA 34, 53; People v.
Solamillo, 452 Phil. 261, 281 (2003).
 57.TSN, April 20, 1990, pp. 1-2; TSN April 30, 1990, pp. 1-2; Exhibit "X;" RTC Decision, CA
rollo, p. 59; Formal Offer of Evidence of the Prosecution dated April 26, 1990, p. 6.

58.Moreover, under Article 2208 of the Civil Code, attorney's fees may be recovered when
exemplary damages have been awarded. See, e.g., Nueva España v. People, G.R. No.
163351, June 21, 2005, 460 SCRA 547, 560.

59.People v. Ibañez, 455 Phil. 133, 166-167 (2003).

60.Nueva España v. People, supra note 58, at 558; People v. Malinao, supra note 56, at 55.

||| (People v. Dagani y Reyes, G.R. No. 153875, [August 16, 2006], 530 PHIL 501-524)

EN BANC

[G.R. No. L-4445. February 28, 1955.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

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

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

Prospero C. Sanidad and Claro M. Recto for defendant, Filipino Velasco.

Solicitor General Juan R. Liwag and Solicitors Jaime R. de los Angeles and
Martiniano P. Vivo for appellee.

SYLLABUS

1. CRIMINAL LAW; CRIMES COMMITTED UPON ORDERS OF

SUPERIOR OFFICERS; LACK OF CRIMINAL INTENT. — Where the accused
acted upon orders of 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, the act is not accompanied by 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 be innocent. (U. S. vs.
Catolico, 18 Phil., 507; People 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).
2. ID.; GUERILLA AMNESTY PROCLAMATION; DOUBTS AS TO
WHETHER CASE FALLS WITHIN PROCLAMATION SHALL BE RESOLVED
IN FAVOR OF ACCUSED. — Where the evidence on record regarding the date of
liberation of the area is contradictory, the accused should not be denied their claim to
the benefits of the Guerrilla Amnesty Proclamation No. 8 (42 Off. Gaz., 2072) on the
ground that the slaying of the deceased took place after actual liberation of the area
from enemy control and occupation, because "any reasonable doubt as to whether a
given case falls within the amnesty proclamation shall be resolved in favor of the
accused." (People vs. Gajo, 46 Off. Gaz., (No. 12) p. 6093.)
3. ID.; ID.; ID. — The concurrence of personal hatred and collaboration with
the enemy as motives for the liquidation of persons accused of and convicted of
treason, espionage, or aiding and abetting of the enemy does not operate to exclude
the case from the benefits of the Guerrilla Amnesty Proclamation.

DECISION

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

This is an appeal by accused Manuel Beronilla, Policarpo 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,
Policarpo 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 counts and imposed upon him the death penalty (Exhibits M
to M-2). Pursuant to instructions 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.
(Exhibits 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
15 INFANTRY, USAFIP
NL 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 but independent
way of handling the whole case.
Best regards,
(Sgd.) R. H. ARNOLD
Lieut.-Colonel, 15th Infantry, PA
Commanding
Received April 26, 1945 7:00 a.m.
(Sgd.) MANUEL BERONILLA
Military Mayor, La Paz, Abra"
(Exhibit 21, 21-a)
Two years thereafter, Manuel Beronilla as military mayor, Policarpo 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 defendants
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, altho
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 participate 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, Policarpo 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. (Exhibits 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 points 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 Colonel 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:
VOLCKMAN TO ARNOLD CLN UNDERSTAND THAT
MUNICIPALITIES OF ABRA HAVE ORGANIZED JURY SYSTEM PD
BELIEVE THAT THIS BODY IS ILLEGAL AND CANNOT TRY PERSONS
FOR ESPIONAGE OR COLLABORATION NOR METE OUT
PUNISHMENTS THEREOF PD SPECIFIC INSTANCE IS BROUGHT TO
YOUR ATTENTION FOR 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 (Exhibits 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 the 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 unusual occurrence that
transpired in La Paz, Abra?. — A. Yes, sir.
Q. Will you state what is that 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 Manuel
Beronilla. Mayor Borjal wanted to know the reason why he would be
tied, as he has 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 order 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, 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 22, 1945, write in reply (Exhibits 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 sit 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 consequences, as, in law, is equivalent to criminal intent. The maxim is,
actus non facit reum, nisi mens rea-a is not committed if the mind of the person
performing the act complained of be innocent." (U. S. vs. Catolico, 18 Phil., 507).
But even assuming that the accused-appellants did commit the crime with
which 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) of 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, Judges 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 even if they are, we believe these appellants should be 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, 84 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.
Paras, C. J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista
Angelo and Concepcion, JJ., concur.
Footnotes

*89 Phil., 414.

||| (People v. Beronilla, G.R. No. L-4445, [February 28, 1955], 96 PHIL 566-577)

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.

Siguion Reyna, Montecillo & Ongsiako for petitioner in G.R. No. 103501-03.

Estebal & Associates Law Firm for petitioner in G.R. No. 103507.

The Solicitor General for respondents.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; VARIANCE BETWEEN THE

CRIME CHARGED AND THAT PROVED, IMMATERIAL. — Tabuena and Peralta
stress that they were being charged with intentional malversation. But they were convicted
of malversation by negligence. Their theory is that such variance is a reversible flaw. We
do not agree with Tabuena and Peralta on this point. Illuminative and controlling is
"Cabello v. Sandiganbayan" where the Court passed upon similar protestations raised by
therein accused-petitioner Cabello whose conviction for the same crime of malversation
was affirmed, in this wise: ". . . 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."

2. CRIMINAL LAW; MALVERSATION; GOOD FAITH, VALID DEFENSE. — Good

faith is a valid defense in a prosecution for malversation for it would negate criminal intent
on the part of the accused.

3. ID.; ID.; ID.; CASE AT BAR. — 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. 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. 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." 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). 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. 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. 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.
4. ID.; ID.; ID.; ADMINISTRATIVE OR CIVIL LIABILITY FOR FAILURE TO
COMPLY WITH AUDITING RULES. — There is no denying that the disbursement,
which Tabuena admitted as "out of the ordinary," did not comply with certain auditing
rules and regulations. 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.

5. ID.; ID.; CONVERSION; NEGATED WHERE MONEY WAS DELIVERED TO

SECRETARY OF THE PRESIDENT; MEMORANDUM DIRECTED ACCUSED TO
PAY IMMEDIATELY PNCC, THRU THE OFFICE OF THE PRESIDENT. — 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. 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.

6. ID.; ID.; CONSPIRACY TO SIPHON-OUT PUBLIC MONEY FOR PERSONAL

BENEFIT OF THOSE THEN IN POWER; NOT PROVEN IN CASE AT BAR. — Even
assuming that the real and sole purpose behind the MARCOS Memorandum was to siphon-
out public money for the personal benefit of those then in power, still, no criminal liability
can be imputed to Tabuena. There is no showing that Tabuena had anything to do
whatsoever with the execution of the MARCOS Memorandum. Nor is there proof that he
profited from the felonious scheme. In short, no conspiracy was established between
Tabuena and the real embezzler/s of the P55 Million.

7. POLITICAL LAW; BILL OF RIGHTS; DUE PROCESS; ACCUSED DENIED

THEREOF WHERE THE SANDIGANBAYAN ACTIVELY TOOK PART IN THE
QUESTIONING OF A DEFENSE WITNESS AND OF THE ACCUSED THEMSELVES.
— 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." 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. 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.

8. REMEDIAL LAW; ACTIONS; APPEALS; APPEAL THROWS THE WHOLE CASE

OPEN TO REVIEW. — 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.

9. JUDICIAL ETHICS; JUDGES; EXAMINATION OF WITNESSES MUST BE

LIMITED TO CLARIFICATORY QUESTIONS. — The Court has acknowledged the
right of a trial judge to question witnesses with a view to satisfying his mind upon any
material point which presents itself during the trial of a case over which he presides. But
not only should his examination be limited to asking "clarificatory" questions, the right
should be sparingly and judiciously used; for the rule is that the court should stay out of it
as much as possible neither interfering nor intervening in the conduct of the trial. "A trial
judge should not participate in the examination of witnesses as to create the impression that
he is allied with the prosecution."

DAVIDE, J., Dissenting Opinion:

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; EXTENSIVE

QUESTIONING BY JUSTICES OF THE SANDIGANBAYAN OF APPELLANTS AND
THEIR WITNESSES, NOT A VIOLATION THEREOF. — 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." I beg to disagree. 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. 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.

2. ID.; ID.; RIGHT TO AN IMPARTIAL JUDGE, SUBJECT TO WAIVER. — 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. In the cases below, the perceived violation, if
at all it existed, was not of the absolute totality of due process, but more appropriately of
the right to an impartial trial, which is but an aspect of the guarantee of due process. I
submit that the right to an impartial trial is waivable.

3. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCE; OBEDIENCE TO LAWFUL

ORDER; MEMORANDUM OF PRESIDENT MARCOS TO DELIVER THRU HIS
OFFICES, THE SUM OF P55,000,000.00 IN CASH AS PARTIAL PAYMENT OF
MIAA'S ACCOUNT, UNLAWFUL. — I also disagree with the view of the majority that
all the requisites of the sixth justifying circumstance in Article II 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. 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.

4. ID.; MALVERSATION; GOOD FAITH, VALID DEFENSE; GOOD FAITH

NEGATED BY NON-OBSERVANCE OF PROCEDURES IN PAYMENT OF
OBLIGATION. — 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

ROMERO, J., Dissenting Opinion:

1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; OBEDIENCE TO A

LAWFUL ORDER; REQUISITES. — For an act to be justified under Article 11(6) of the
Revised Penal Code 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.

2. ID.; ID.; ID.; ID.; UNLAWFUL MEANS IN CARRYING OUT UNLAWFUL ORDER;
CASE AT BAR. — 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." 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. 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 Malacañang, 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," admittedly
"out of the ordinary" and "not based on normal procedure." 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.

3. ID.; MALVERSATION; GOOD FAITH, VALID DEFENSE; LIABILITY SUBSISTS

WHERE ACCUSED WERE NEGLIGENT. — 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. 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. Even the Ongpin Memorandum, which is the basis of the
Marcos Memorandum, failed to show where the amount of P55 million cropped up. 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, which indicates its
liability to PNCC as of December 31, 1985 to be P27,931,000.00. 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?

4. CIVIL LAW; OBLIGATIONS AND CONTRACTS; OBLIGATION NOT

EXTINGUISHED WHERE PAYMENT WAS MADE TO A THIRD PERSON. — 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. 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. 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. 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?

5. REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDINGS OF FACT OF THE

TRIAL COURT, GENERALLY UPHELD ON APPEAL. — 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. 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, 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.

6. CRIMINAL LAW; CRIMINAL LIABILITY; CARRIES WITH IT CIVIL LIABILITY.

— 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.

7. ID.; MALVERSATION; IMMUNITY FROM CIVIL LIABILITY FOR ACTS DONE

IN OFFICIAL DUTIES; BAD FAITH, MALICE OR GROSS NEGLIGENCE MUST BE
WANTING. — 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.

8. ID.; CRIMINAL PROCEDURE; VARIANCE IN CRIME CHARGED AND THAT

PROVED, IMMATERIAL. — The variance between the crime charged and that proved
by the prosecution is immaterial, as stated by the ponente. 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."

9. ID.; MALVERSATION; CONSPIRACY NOT NECESSARY WHERE ACCUSED

PERSONALLY AND KNOWINGLY PERMITTED OTHER PERSON TO TAKE
PUBLIC FUNDS. — The fact that no conspiracy was established between petitioners and
the true embezzlers of the P55 million is likewise of no moment. The crime of
malversation, as defined under Article 217 of the Code, was consummated the moment
petitioners deliberately turned over and allowed the 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.

10. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; QUESTIONS

FROM JUSTICE ELICITING THE TRUTH, NOT A DENIAL THEREOF. — 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. 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. 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"; he should,
instead, "conduct a trial in an orderly way with a view to eliciting the truth and to attaining
justice between the parties." The numerous questions asked by the court a quo should have
been scrutinized for any possible influence it may have had in arriving at the assailed
decision. The true test for the appropriateness or inappropriateness of court queries is not
their quantity but their quality, that is, whether the defendant was prejudiced by such
questioning. To repeat, petitioners did not feel prejudiced by the trial court's actions;
otherwise, they would have raised this issue in the instant petition.

PUNO, J., Dissenting Opinion:

1. CRIMINAL LAW; MALVERSATION BY NEGLIGENCE; GOOD FAITH, NOT A

DEFENSE. — 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." 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.

2. ID.; CRIMINAL LIABILITY; DOCTRINE OF MISTAKE OF FACT; NEVER

APPLIED WHERE NEGLIGENCE CAN BE IMPUTED TO THE ACCUSED. — For the
same reason, the majority cannot rely on the doctrine of mistake of fact as ground to acquit
petitioners. It found as a fact that ". . . 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, 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 a conviction under the penal provisions
touching criminal negligence. Hence, Ah Chong was acquitted when he mistook his
houseboy as a robber and the evidence showed that his mistake of fact was not due to
negligence. In the case at bar, the negligence of the petitioners screams from page to page
of the records of the case. Petitioners themselves admitted that the payments they made
were "out of the ordinary" and "not based on normal procedure."

3. ID.; MALVERSATION; GOOD FAITH AS A DEFENSE; GOOD FAITH NEGATED

WHERE ACCUSED VIOLATED AUDITING RULES. — 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. 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.

PANGANIBAN, J., Dissenting Opinion:

CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; OBEDIENCE TO A LAWFUL
ORDER; DEFENSE UNTENABLE WHEN A MORAL CHOICE WAS IN FACT
POSSIBLE TO THE ACCUSED. — The defense of "obedience to a superior's order" is
already obsolete. In 1947 the United Nations General Assembly adopted a Resolution
firmly entrenching the principle of moral choice, inter alia, as follows: "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 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 dubious 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.

DECISION

FRANCISCO, J : p

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, 1991 3 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 (P 25,000,000.00).
 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 10th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines, and within the jurisdiction of this
Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public
officers, being then the General Manager and Assistant General Manager,
respectively, of the Manila International Airport Authority (MIAA), and
accountable for public funds belonging to the MIAA, they being the only ones
authorized to make withdrawals against the cash accounts of MIAA pursuant to
its board resolutions, conspiring, confederating and confabulating with each
other, did then and there wilfully, unlawfully, feloniously, and with intent to
defraud the government, take and misappropriate the amount of TWENTY FIVE
MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the
issuance of a 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.lexlib

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

Malacañang

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

F o r : The President

F r o m : Minister Roberto V. Ongpin

D a t e : 7 January 1985

Subject : Approval of Supplemental Contracts and Request for Partial Deferment

of Repayment of 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

Minister" 5

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 Malacañang. 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:

"Malacañang Manila
 January 30, 1986

RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY

FIVE MILLION PESOS (P55,000,000.00) as of the following dates:

Jan. 10 — P25,000,000.00

Jan. 16 — 25,000,000.00

Jan. 30 — 5,000,000.00

(Sgd.) Fe Roa-Gimenez"

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) errors 6 6a
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 confabulating with each other, did
then and there willfully, 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 significant malversation cases of "US v. Catolico" 10 and
"US v. Elviña," 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 its

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 good faith so as to
make him criminally liable. What is more significant to consider is that the MARCOS
Memorandum is patently legal (for on its face it directs payment of an outstanding
liability) and that Tabuena acted under the honest belief that the P55 million was a
due and demandable debt and that it was just a portion of a bigger liability to PNCC.
This belief is supported by defense witness Francis Monera who, on direct
examination, testified that:

"ATTY. ANDRES

Q. Can you please show us in this Exhibit "7" and "7-a" where it is indicated the
receivables from MIA as of December 31, 1985?

A. As of December 31, 1985, the receivables from MIA is shown on page 2,

marked as Exhibit "7-a", sir, P102,475,392.35.

xxx xxx 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. Elviña" 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 29.5 expressly and solely speak of "civilly liable" to describe the kind of sanction
imposable on a superior officer who performs his duties with "bad faith, malice or gross
negligence"' and on a subordinate officer or employee who commits "willful or negligent
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. 106)

—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 P55 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 on these escalation billings?

A. Based on records available as of today, the P102 million was reduced to about
P56.7 million, if my recollection is correct, your Honor.

*PJ GARCHITORENA

*Q. Were the payments made before or after February 1986, since Mr. Olaguer
is a new entrant to your company ?

WITNESS
A. The payments were made after December 31, 1985 but I think the payments
were made before the entry of our President, your Honor. Actually, the
payment was in the form of assignments to State Investment of about P23
million; and then there was P17.8 million application against advances
made or formerly given; and there were payments to PNCC of about P2.6
million and there was a payment for application on withholding and
contractual stock of about P1 million; that summed up to P44.4 million
all in all. And you deduct that from the P102 million, the remaining
balance would be about P57 million.

*PJ GARCHITORENA

*Q. What you are saying is that, for all the payments made on this P102 million,
only P2 million had been payments in cash?

A. Yes, your Honor.

*Q. The rest had been adjustments of accounts, assignments of accounts, or

offsetting of accounts?

A. Yes, your Honor.

*Q. This is as of December 31, 1985?

A. The P102 million was as of December 31, 1985, your Honor, but the balances
is as of August 1987.

*Q. We are talking now about the P44 million, more or less, by which the basic
account has been reduced. These reductions, whether by adjustment or
assignment or actual delivery of cash, were made after December 31,
1985?

WITNESS

A. Yes, your Honor.

*Q. And your records indicate when these adjustments and payments were made?

A. Yes, your Honor.

*AJ AMORES

*Q. You said there were partial payments before of these escalation billings. Do
we get it from you that there was an admission of these escalation costs
as computed by you by MIA, since there was already partial payments?
A. Yes, your Honor.

*Q. How were these payments made before February 1986, in cash or check, if
there were payments made?

A. The P44 million payments was in the form of assignments, your Honor.

*PJ GARCHITORENA

*Q. The question of the Court is, before December 31, 1985, were there any
liquidations made by MIA against these escalation billings?

A. I have not reviewed the details of the record, your Honor. But the ledger card
indicates that there were collections on page 2 of the Exhibit earlier
presented. It will indicate that there were collections shown by credits
indicated on the credit side of the ledger.

*AJ AMORES

*Q. Your ledger does not indicate the manner of giving credit to the MIA with
respect to the escalation billings. Was the payment in cash or just credit
of some sort before December 31, 1985?

A. Before December 31, 1985, the reference of the ledger are official receipts and
I suppose these were payments in cash, your Honor.

*Q. Do you know how the manner of this payment in cash was made by MIA?

A. I do not know, your Honor.

*PJ GARCHITORENA

*Q But your records will indicate that?

A. The records will indicate that, your Honor.

*Q. Except that you were not asked to bring them?

A. Yes, your Honor.

*Q. At all events, we are talking of settlement or partial liquidation prior to

December 31, 1985?

A. Yes, your Honor.

*PJ GARCHITORENA

*Q. Subsequent thereto, we are talking merely of about P44 million?

A. Yes, your Honor, as subsequent settlements.

*Q. After December 31, 1985?

A. Yes, your Honor.

*Q. And they have liquidated that, as you described it, by way of assignments,
adjustments, by offsets and by P2 million of cash payment?

A. Yes, your Honor.

*AJ AMORES

*Q. Your standard operating procedure before December 31, 1985 in connection
with or in case of cash payment, was the payment in cash or check?

A. I would venture to say it was by check, your Honor

*Q. Which is the safest way to do it?

A. Yes, your Honor

*PJ GARCHITORENA

*Q. And the business way?

A. Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q. You mentioned earlier about the letter of former Minister Ongpin to the former
President Marcos, did you say that that letter concurs with the escalation
billings reflected in Exhibits "7" and "7-a"?

WITNESS
A. The Company or the management is of the opinion that this letter, a copy of
which we were able to get, is a confirmation of the acceptance of our
billings, sir.

Q. This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of
escalation billings as appearing in Exhibit "7" are dated June 30, 1985,
would you still insist that the letter of January 1985 confirms the
escalation billings as of June 1985?

A. The entries started June 30 in the ledger card. And as of December 31, 1985,
it stood at P102 million after payments were made as shown on the credit
side of the ledger. I suppose that the earlier amount, before the payment
was made, was bigger and therefore I would venture to say that the letter
of January 7, 1985 contains an amount that is part of the original contract
account. What are indicated in the ledger are escalation billings.

*PJ GARCHITORENA

*Q We are talking about the letter of Minister Ongpin?

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

"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 Malacañang 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 Malacañang 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

*Q. So, when the Presiding Justice asked you as to how you knew that this was
the signature of Mrs. Gimenez and you answered that you saw Mrs.
Gimenez signed it, you were not exactly truthful?

A. What I mean is, I did not see her sign because she went to her room and when
she came out, she gave me that receipt, your Honor.

PJ GARCHITORENA
 That is why you have to wait for the question to be finished and listen to
it carefully. Because when I asked you, you said you saw her signed it. Be
careful Mr. Tabuena.

WITNESS

Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS. VIERNES

Q. Was there another person inside the office of Mrs. Gimenez when she gave
you this receipt Exhibit "3"?

A. Nobody, sir.

Q. I noticed in this receipt that the last delivery of the sum of P55 million was
made on January 30. Do we understand from you that this date January
30 is erroneous?

A. Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should
be January 31st, sir.

PROS. VIERNES

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 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.

*A J 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

*Q. Did you file any written protest with the manner with which such payment
was being ordered?

A. No, your Honor.

*Q. Why not?

A. Because with that instruction of the President to me, I followed, your Honor.

*Q. Before receiving this memorandum Exhibit "I", did the former President
Marcos discuss this matter with you ?

A. Yes, your Honor.

*Q. When was that?

A. He called me up earlier, a week before that, that he wants to me pay what I

owe the PNCC directly to his office in cash, your Honor.

*PJ GARCHITORENA

*Q. By "I OWE", you mean the MIAA?

WITNESS

A. Yes, your Honor.

*A J 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.

*A J 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.

*A J 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 Malacañang?

WITNESS

A. I was just basing it from the Order of Malacañang 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 Malacañang 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 Malacañang 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 Game Fowl Commission ?

A. Yes, your Honor.

*Q. Who was running the commission at that time?

A. I forgot his name, but he retired already, your Honor.

*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

*Q. Under these circumstances, did you not entertain some apprehension that
some disloyal employees might leak you out and banner headline it in
some mosquito publications like the Malaya at that time?

WITNESS
A. No, your Honor.

*PJ GARCHITORENA

I bring this up because we are trying to find out different areas of fear.
We are in the government and we in the government fear the COA and we
also fear the press. We might get dragged into press releases on the most
innocent thing. You believe that?

A. Yes, your Honor.

*Q. And usually our best defense is that these activities are properly
documented?

A. Yes, your Honor.

*Q. In this particular instance, your witnesses have told us about three (3)
different trips from Nichols to Aguado usually late in the 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, sir.

Q. And you also went with Mr. Tabuena to Aguado?

A. No, sir, I was left behind at Nichols. After it was placed at the trunk of the car
of Mr. Tabuena, I was left behind and I went back to my office at MIA.

Q. But the fact is that, this P5 million was withdrawn at passed 5:00 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 Malacañang 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 Malacañang .

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.

*A J 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.

*A J 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.

*A J DEL ROSARIO

*Q. Since the payment was made on January 31, 1986, and that was very close
to the election held in that year, did you not entertain any doubt that the
amounts were being used for some other purpose?

ATTY. ESTEBAL

With due respect to the Honorable Justice, we are objecting to the question
on the ground that it is improper.

*A J 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.

*A J 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.

*A J HERMOSISIMA

*Q. This was an obligation of the MIAA to the PNCC. Why did you allow a
disbursement by means of check in favor of Mr. Luis Tabuena, your own
manager?

A. We based the payment on the order of Mr. Tabuena because that was the order
of President Marcos to pay PNCC through the Office of the President and
it should be paid in cash, your Honor.

*Q. You are supposed to pay only on legal orders. Did you consider that legal?

ATTY. ESTEBAL

With due respect to the Honorable Justice, the question calls for a
conclusion of the witness.

*PJ GARCHITORENA

Considering that the witness is an expert, witness may answer

WITNESS

A. The order of President Marcos was legal at that time because the order was to
pay PNCC the amount of P5 million through the Office of the President
and it should be paid in cash, your Honor. And at that time, I know for a
fact also that there was an existing P.D. wherein the President of the
Republic of the Philippines can transfer funds from one office to another
and the PNCC is a quasi government entity at that time.

*A J 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 concerned?

WITNESS

A. Because at that time, your Honor, I have knowledge that the President is
authorized through a Presidential Decree to transfer government funds
from one office to another.

*PJ GARCHITORENA

*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by
the Appropriation Act?

A. I think the liability was duly recorded and appropriations to pay the amount is
(interrupted)

*PJ GARCHITORENA
*Q. Tell me honestly, is your answer responsive to the question or are you just
throwing words at us in the hope that we will forget what the question is?

A. No, your Honor.

*Q. Are you telling us that the debts incurred by MIAA are covered by the
Appropriations Act so that the payment of this debt would be in the same
level as the realignment of funds authorized the President? Or are you
telling 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 other words, even if Mr. Tabuena is the Manager, you as Financial
Services Manager and as counter signatory are in a position to tell Mr.
Tabuena, "I am sorry, you are my superior but this disbursement is not
proper and, therefore, I will not sign it", if in your opinion the
disbursement is not proper?

A. Yes, your Honor.

*Q. Therefore, as co-signatory, you are expected to exercise your judgment as to

the propriety of a particular transaction?

A. Yes, your Honor.

*Q. And this is something you know by the nature of your position and because
you are a Certified Public Accountant?

A. Yes, your Honor.

*AJ DEL ROSARIO

*Q. You admit that the payment of P5 million and P50 million were unusual in
the manner with which they were disposed?

A. Yes, your Honor.

*Q. Did you submit a written protest to the manner in which such amount was
being disposed of?

A. A written protest was not made, your Honor, but I called the attention of Mr.
Tabuena that since this payment was upon the order of President Marcos,
then I think as President he can do things which are not ordinary.
 *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?

xxx xxx xxx

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

xxx xxx xxx

*Q. Therefore, when you said that a Journal Voucher here is proper, you are
saying it is proper only because of the exceptional nature of the
transactions?

xxx xxx xxx

*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 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 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. lexlib

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, Kapunanand Mendoza, JJ ., concur.

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

Hermosisima, Jr., J., took no part; signatory to the Sandiganbayan decision.

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. Hudieres 5 needs repeating:

It is very clear, however, from a review of the whole proceedings that the only
object of the trial judge in propounding these questions was to endeavor as far as
possible to get at the truth as to the facts to which the witnesses were testifying.
The right of a trial judge to question the witnesses with a view to satisfying his
mind upon any material point which presents itself during the trial of a case over
which he presides is too well established to need discussion. The trial judges in
this jurisdiction are judges of both the law and the facts, and they would be
negligent in the performance of their duties if they permitted a miscarriage of
justice as a result of a failure to propound a proper question to a witness which
might develop some material fact upon which the judgment of the case should
turn. So in a case where a trial judge sees that the degree of credit which he is to
give the testimony of a given witness may have an important bearing upon the
outcome, there can be no question that in the exercise of a sound discretion he
may put such questions to the witness as will enable him to formulate a sound
opinion as to the ability or willingness of the witness to tell the truth. The
questions asked by the trial judge in the case at bar were in our opinion 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

—————

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 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 llcd

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.

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 the PNB, they were encashed at the Villamor Air Base branch.
Each time the case was delivered directly to the office of Marcos' private secretary, Fe Roa-
Gimenez. The latter issued a receipt 2 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 1987. 4 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
Malacañang, 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. 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; and (c) it informed the President that the 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 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 aforestated, 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 Malacañang. cdasia

(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 a good father of
a family in supervising the accountable officers under his control to prevent the
incurrence of loss of government funds or property, otherwise he shall be jointly
and severally liable with the person primarily accountable therefore. . . .

SEC. 29. LIABILITY OF ACCOUNTABLE, SUPERIOR AND SUBORDINATE

OFFICERS FOR GOVERNMENT FUNDS

29.1. Every officer accountable for government funds shall be liable for all losses
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. 2 9. 2
exempts him from civil liability, "unless there is a clear showing of bad faith, malice or
gross negligence;"and (c) Sec. 29.5 states that "he shall be liable for willful or negligent
acts done by him which are contrary to law, morals, public policy and good customs even
if he acted under order or instructions of his superiors." The quoted provisions have been
once more underscored herein.
The ponencia further states that "(t)here is no showing that Tabuena has anything to do
whatsoever with the execution of the MARCOS Memorandum." But very clearly, the
admitted facts show that it was precisely Tabuena who implemented or executed the said
Memorandum.

The ponencia cites Acebedo where the accused was acquitted after it was shown that it was
actually the 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 Malacañang 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;

xxx xxx xxx

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.

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 punishable." 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 fruendi, in murder, malice, etc.), cancels the presumption of intent and works an
acquittal, except in those cases where the circumstances demand a conviction under the
penal provisions touching criminal negligence. Hence, Ah Chong was acquitted when he
mistook his houseboy as a robber and the evidence showed that his mistake of fact was not
due to negligence. In the case at bar, the negligence of the petitioners screams from page
to page of the records of the case. Petitioners themselves admitted that the payments they
made were "out of the ordinary" and "not based on normal procedure."

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. LexLib

III

Finally, I can not but view with concern the probability that the majority decision will chill
complaints against graft pending before the respondent Court. From the majority decision,
it is crystalline that petitioners blindly obeyed the Marcos Memorandum despite its fatal
and facial flaws. The majority even quotes these inculpatory admissions of petitioner
Tabuena, viz: 4

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, you Honor, I was just following the Order to me of the President.

PJ Garchitorena
 "Q . So the Order was out of the ordinary?

"A. Yes, your Honor.

AJ del Rosario

"Q . Did you file any written protest with the manner with which such payment
was being ordered?

"A. No, your Honor.

"Q . Why not?

"A. Because with that instruction of the President to me, I followed your Honor.

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 Malacañang?

"A. I was just basing it from the Order of the Malacañang 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 Malacañang 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.

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 fuerher. 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 dubious 3 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 convicting the petitioners
of malversation.

Padilla, Panganiban, JJ., joins Davide, Romero and Puno, JJ., in their Dissenting
Opinions.

Footnotes

1.Taken under Section 7 of P.D. 1606, as amended (the Sandiganbayan Law), Section 1, Rule
XIX of the Revised Rules of the Sandiganbayan and Rule 45 of the Rules of Court. The
petitions were ordered consolidated by the Court in an En Banc Resolution dated October
1, 1992.

2.Promulgated on October 22, 1990; Rendered by the First Division then composed of Justices
Garchitorena (ponente), Hermosisima (now Associate Justice of this Court) and Del
Rosario.

3.Promulgated on January 10, 1992.

4.Records, Vol. I, p. 26.

5.Records, Vol. I, pp. 119-120.

6.Tabuena avers that the Sandiganbayan:

"A.

Erred and committed reviewable error in ruling that petitioner's withdrawal of the P55 Million
was not for a lawful purpose or for a lawful debt. In the process, the Sandiganbayan
 clearly ignored several pieces of evidence submitted by petitioner, and instead
misapprehended the full import of the Ongpin Memorandum (Exh. "2", as attachment of
Annex "I"), to which the Marcos order to pay referred (Exh. "1", attachment to Annex
"I"). In so concluding, the Sandiganbayan laid its conclusions open to review as its
judgment is in effect based on misapprehension of facts (Cruz vs. Sosing, L-4875,
November 27, 1953); and in ignoring several material pieces of evidence abused its
discretion (Buyco vs. People, 51 OG 7927).

B.

Erred and committed reviewable error in ruling that the Ongpin Memorandum (Exh. "2" and
"2-A", See Annex "I"), and the Marcos approval thereof (Exh. "1", id.) did not support
the withdrawal and payment of monies by petitioner. In so concluding, the
Sandiganbayan again clearly misapprehended the Ongpin and Marcos Memoranda, and
the ledger of PNCC.

C.

Erred and committed reviewable error in ruling that petitioner was in bad faith when he
complied with the presidential order to pay; in thus concluding the Sandiganbayan
indulged in speculations and conjectures (Joaquin vs. Navarro, 93 Phil. 257), or otherwise
went beyond the issues (Evangelista vs. Alco, L-11139, April 23, 1958); the
Sandiganbayan also erred in not ruling that petitioner is entitled to justifying
circumstance under Par. 6, Art. 11, and/or the exempting circumstance provided under
Pars. 5 and 6 of Art. 12 of the Revised Penal Code.

D.

Erred and committed reviewable error in ruling that petitioner was unable to account for the
money. In so doing, the Sandiganbayan contradicted the ruling in U.S. vs. Catolico. 18
Phil. 504. It also erred in holding petitioner accountable for acts not charged in the
amended informations, and in so doing convicted him without jurisdiction.

E.

Erred and committed reviewable error in ruling that petitioner was not entitled to immunity as
provided by Sec. 17, Article VII of the 1973 Constitution. The Sandiganbayan therefore
had no jurisdiction to try the cases.

F.

Erred and committed reviewable error in ruling that proof beyond reasonable doubt of
petitioner's guilt was submitted by the prosecution. In so doing, the Sandiganbayan
wrongly shifted the burden of proof and denied petitioner the benefits of the presumption
of innocence, of Secs. 1 and 2, Rule 131, and the absence of demand under the last
paragraph of Art. 217 of the Revised Penal Code."
6a.Peralta for his part claim that:

"1. Respondent court grossly and seriously erred in convicting herein accused despite the
absence of proof that he allegedly converted the funds withdrawn to his own personal
benefit as charged in the information in glaring violation of his basic constitutional right
to be presumed innocent.

"2. Respondent court likewise grossly and seriously erred in convicting herein accused for a
crime not charged in the information again in violation of another constitutional right,
that is the right to be informed of the accusation or right to due process.

"3. Respondent court also grossly erred in convicting herein accused on the basis of mere
assumptions, conjectures and inferences devoid of factual basis in another serious and
glaring violation of his right to be presumed innocent until his guilt is established by
proof beyond reasonable doubt.

"4. Respondent court finally erred in refusing to recognize the applicability of the immunity
provision embodied in the Constitution and of the justifying circumstance of obedience
to a lawful order as valid defenses in this case."

7.Citing PNB v. Tugab, 66 Phil. 583 and People v. Pascua, 71 O.G. 2474.

8.Citing Tubb v. People, 101 Phil. 114.

9.197 SCRA 94.

10.18 Phil. 504.

11.24 Phil. 230.

12. 47 Phil. 48.

13.Lewis v. People, 99 Colo. 102, 60 Pac. [2d] 1089; Lawyer v. State, 221 Ind. 101, 46 N.E. [2d]
592; State v. Schmidt, 72 N. Dak. 719, 10 N.W. [2d] 868. Underhill's Criminal Evidence,
5th Ed., Book 3, p. 1421.

14.Federal Lindgren v. United States, 260 Fed. 772. Underhill, ibid.

15.Section 8, Article VII of the 1973 Constitution provides:

"The President shall have control of all ministries."

16.No. 6. Article II, Revised Penal Code.

17.Sandiganbayan Decision, pp. 37-38.

18.Sandiganbayan Decision, p. 41.

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

20.TSN, March 17, 1989, p. 8; Vol. III, Records, p. 410.

21.TSN, March 17, 1989, p. 10; Vol. III, Records, p. 412.

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

23.78 Phil. 67.

24.Padilla, Revised Penal Code, Book One, Vol. I, 7th Ed. 1974., p. 248. See also: Aquino, The
Revised Penal Code, Vol. I, 1987 Ed., p. 207.

In the very words of the Court in the "Nassif" case:

"El mero acto de escribir un empleado de la categoria del recurrente, en el Exhibit B,

la palabra "sold," por orden de su principal que le paga el sueldo, sin prueba
alguna de dolo o malicia de su parte, no crea por si solo ninguna
responsabilidad. Si antes de insertar dicha palabra en el referido documento, o
al tiempo de hacerlo, el recurrente hubiese sabido o sospechado de alguna
manera que era para justificar un acto impropio de su principal, cosa que, por
cierto, no se ha probado, ni puede desprenderse de la decision impugnada,
indudablemente podria hacersele responsable a dicho recurrente, de la
falsificacion cometida, si no como coautor, por lo menos como complice. Todo
esto y la circumstancia justificativa invocada por el recurrente, eximen a este
de toda responsabilidad."

25.Decision, p. 45.

26.145 SCRA 435.

27.Supra .

28.Sandiganbayan Decision, p. 50.

29.People v. Fabian, No. 10790-CR, March 12, 1973. 69 O.G. 12150, No. 53.

30.18 Phil. 428.

31.197 SCRA 262.

32.Supra, p. 431.

33.Supra, p. 273.
34.Development Bank of the Philippines v. Pundogar, 218 SCRA 118,163.

35.People v. Exala, Dissenting Opinion, 221 SCRA 494,503

36.People v. Olfindo, 47 Phil. 1, citing U.S. v. Abijan, 1 Phil. 83; People v. Borbano, 76 Phil.
703; Perez v Court of Appeals, 127 SCRA 636.

37.See TSN of March 17, 1989, Records, Vol. III, pp. 408-423.

38.See pp. 1-27 TSN of May 2, 1990, Records, Vol. III, pp. 439-465.

39.See pp. 32-53 of TSN, of May 2, 1990, Records, Vol. III, pp. 470-490.

40.Confrontation. — Confrontation consists of confronting the witness with damaging facts

which he cannot deny and which are inconsistent with his evidence. It is a destructive
technique, but when it fails to destroy it may still succeed in weakening.

Probing. — Probing consists of inquiring thoroughly into the details of the story to discover the
flaws.

Insinuation. — Insinuation consists of leading or forcing the witness by adding facts at one point
and modifying details at another, to give a version of his evidence which is more
favorable to the other side. The Technique of Advocacy, by John H. Munkman, pp. 66-
67; p. 75: pp. 91-92.

41.TSN, March 17, 1989, pp. 11-21; Records, Vol. III, pp. 413-423.

42.TSN, May 2, 1990, pp. 11-27; Records, Vol. III, pp. 449-465.

43.TSN, May 2, 1990, pp. 35-53; Records, Vol. III, pp. 473-490.

44.US v. Hudieres, 27 Phil. 45; Us v. Lim Kui, 35 Phil. 504; US v. Binayao, 35 Phil. 23.

45.People v. Opida, 142 SCRA 295.

46.York v. US, 299 Fed. 778.

47.TSN, May 2, 1990, pp. 35-53; Records, Vol. III, pp. 473-490.

48.People v. Opida, supra.

49.Murphy v. State, 13 Ga. App. 431, 79 S.E. 228.

50.People v. Bernstein, 250 Ill. 63, 95 N.E. 50.

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

53.Com. v. Myma, 278 Pa. 505,123 Atl. 786.

54.Adler v. US, 104 C.C.A. 608, 108 Fed. 464.

55.Campaner v. Alano, CA-G.R. No. 2558-R, December 15, 1948.

56.People v. Opida, supra.

DAVIDE, JR., J., dissenting:

1.G.R. No. 105938.

2.Page 26.

3.218 SCRA 118, 163 [1993].

4.Citng People v. Olfindo, 47 Phil. 1 [1924], citing U.S. vs. Abijan, 1 Phil. 83 [1902]; People v.
Borbano, 76 Phil. 703, [1946]; Perez v. Court of Appeals, 127 SCRA 636 [1984].

5.27 Phil. 45, 47-48 [1914].

6.Article 6, Civil Code.

7.198 SCRA 130, 154-155 [1991].

8.Citing 92 C.J.S., 1066-1068 (emphasis supplied for emphasis).

9.Citing 16 A. 2d 50, 57, 340 Pa. 33, cited in note 71 C.J.S., 1068.

10.Citing ARTURO M. TOLENTINO, Civil Code of the Philippines, vol. 1, 1985 ed., 31-32,
citing Waxman v. United States, 12 Fed. 2nd, 775.

11.Citing People v. Malasugui, 63 Phil. 221 [1936]; de Garcia v. Locsin, 65 Phil. 689 [1938].

12.Citing People v. Royo, 114 SCRA 304 [1982]; Morales v. Enrile, 121 SCRA 538 [1983];
People v. Colana, 126 SCRA 23 [1983]; People v. Sanchez, 132 SCRA 103 [1984];
People v. Galit, 135 SCRA 465 [1985]; People v. Quizon, 142 SCRA 362 [1986].

13.Citing Abriol v. Homeres, 84 Phil. 525 [1949]; People v. Dichoso, 96 SCRA 957 [1980].

14.JOAQUIN G. BERNAS, The Constitution of the Republic of the Philippines, vol. 1 [1987],
387.

ROMERO, J., dissenting:

1.Exh. "1," Rollo, p. 231.

2.Ex. "3," ibid., p. 234.

3.Reyes, The Revised Penal Code, I, 1993, pp. 203-204; Kapunan and Faylona, Criminal Law,
1993, p. 82.

4.Sec. 607, Chapter 26, Title VII, The Administrative Code.

5.A new provision which was not in Batas Pambansa Blg. 337 (The Local Government Code of
1983).

6.COA Circular No. 91-350 dated March 4, 1991, increased the ceiling for cash payments from
P5,000.00 to P10,000.00. The Basic Guidelines for Internal Control, issued by the COA
on January 31, 1977, set the ceiling even lower at P1,000.00.

7.TSN, May 2, 1990, p. 53.

8.Ibid., p. 17.

9.COA Circular No. 85-55-a, September 8, 1985.

10.Sec. 29 (1), Art. VI, 1987 Constitution (Sec. 18 [1], Art. VIII, 1973 Constitution).

11.Section 29 (2), Ibid. (Section 18 [2], Ibid.).

12.Section 29 (3), Ibid., (new provision).

13.Section 1, Chapter I, Title I-B, Bk. V, The Administrative Code of 1987 (new).

14.Section 4 (5), P.D. 1445; Section 344, 1991 Local Government Code (new).

15.Section 4 (6) and Section 55 (4), Ibid.; COA Circular 78-84, August 1, 1978; COA Circular
81-155.

16.Section 4 (7) and Section 55 (2), Ibid.

17.Section 4 (8), Ibid.

18.TSN, March 17, 1989, pp. 7-20.

19.Exhibit "2," Rollo, p. 232.

20.Exhibit "4," Ibid., p. 235.

21.Exhibit "4-a," Id.

22.Art. 1240, Civil Code of the Philippines.

23.Art. 1241, par. 2, Ibid.

24.Art. 1246, par. 1, Id.

25.Rollo, pp. 385-387.

26.Supra.

27.ART. 217.Malversation of public funds or property. — Presumption of malversation. — Any

public officer who, by reason of the duties of his office, is accountable for public funds
or property, shall appropriate the same, or shall take or misappropriate or shall consent,
or through abandonment or negligence, shall permit any other person to take such public
funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation
or malversation of such funds or property, . . . . (Emphasis supplied)

28.75 Am Jur 2d, Trial, Sec. 272, citing U.S. v. Candelaria-Gonzalez (CA5 Tex) 547 F2d 291.

29.Ibid.

30.Id., citing U.S. v. Slone (CA6 Ky) 833 F2d 595, 24 Fed Rules Evid Serv 339.

31.Id., citing Johnston v. Birmingham (Ala App) 338 So 2d 7.

32.Id., citing Egret v. Mosler Safe Co. (Colo App) 730 P2d 895; Law Offices of Lawrence J
Stockler, PC v. Rose, 174 Mich App 14, 436 NW2d 70, app den 434 Mich 862,
reconsideration den (Mich) 1990 Mich LEXIS 962, and reconsideration den (Mich) 1990
Mich LEXIS 963.

33.Id., citing U.S. v. Kelly (CA3 NJ) 329 F2d 314; Woodring v. U.S. (CA8 Mo) 311 F2d 417,
cert den 373 US 913, 10 L Ed 2d 414, 83 S Ct 1304.

PUNO, J., dissenting:

1. Aquino, The Revised Penal Code, Vol. I, 1976 ed., p. 60 .

2.15 Phil. 488, 493.

3. Section 5, Article VII of the Constitution.

4.See pp. 41-4 5 of majority decision.

PANGANIBAN, J., dissenting:

1.AJIL 172, 221 (1947).

2.For the full text of the Resolution, please see Salonga and Yap, Public International Law, Third
Edition, p. 235-236.

3.Submitted before the Sandiganbayan was a Memorandum of then Minister of Trade Roberto
Ongpin dated January 7, 1985, stating that the MIAA had a total account of P98.4 million
due the PNCC. Subtracting however the "outstanding advances totalling P93.9 . . . will
leave a net amount due to PNCC of only P4.5 million," explained Mr. Ongpin. Even if
the P30 million advances which Pres. Marcos is claimed to have authorized PNCC to
retain, is added to this "net amount due": of P4.5 million, the total would run up to only
P34.5 million — still P20.5 million shy of the P55 million actually disbursed.

4.In Ty vs. Trampe, 250 SCRA 500, 521, December 1, 1995, judges were admonished to follow
"established laws, doctrines and precedents." Hence, "once a case has been decided one
way, then another case involving exactly the same point at issue should be decided in the
same manner." Tay Chun Suy vs. Court of Appeals, 229 SCRA 151, 163, January 7, 1994.

5.In People vs. Salle, Jr., 250 SCRA 581, December 4, 1995 this Court expressly held that
Section 19, Article VII of the present Constitution prohibits the presidential grant of
pardon unless there is "conviction by final judgment" of the accused.