ARTICLE 11 by an Information filed before the Regional
Trial Court (RTC) of Surigao del Sur, the measure his courage!, referring to Edencito
SECOND DIVISION accusatory portion of which reads:
PEOPLE OF THE PHILIPPINES, That on or about 3:30 oclock in the
Appellee, afternoon of April 25, 1996 at Bandola
Street, Pob. Municipality of Hinatuan,
- versus - Province of Surigao del Sur, Philippines and
within the jurisdiction of this Honorable
JAIME LOPEZ, ROGELIO REGALADO, Court, the above-named accused
AND ROMEO ARAGON, conspiring, confederating and mutually
Appellants. helping one another for a common purpose,
G.R. No. 177302 with treachery and evident premeditation
and with deliberate intent to kill, and armed
Present: with sharp bladed instruments (knives and
Tare), did then and there willfully, unlawfully
QUISUMBING, J., Chairperson, and feloniously attack, assault, box and stab
CARPIO MORALES, to death EDENCITO CHU Y
TINGA, VILLAHERMOSA, thereby inflicting upon the
VELASCO, JR., and latter fatal multiple stab wounds as certified
BRION, JJ. to by a doctor, which caused his
instantaneous death, to the damage and
prejudice of the heirs of the said CHU.
Promulgated:
April 16, 2009 CONTRARY TO LAW: (In violation of Article
248 of the Revised Penal Code of the
x------------------------------- Philippines, with the aggravating
-------------------x circumstances of superior strength).[1]
From the evidence for the prosecution, the
DECISION following version of events is culled:[2]
At around 3:30 P.M. of April 25, 1996,
appellant Rogelio Regalado (Regalado),
CARPIO MORALES, J.: who was outside Bantogan[3] Tailoring, a
Jaime Lopez, Rogelio Regalado and Romeo tailoring shop at Bandola street corner
Aragon (appellants) were charged of Murder Villaluz, Hinaruan, Surigao del Sur, called
out: You let Bonjong come out so we could
Chu (Chu) whose nickname is Bonjong. Chu
thereupon emerged from his mothers
bakery, Purity Bakery, fronting the tailor
shop, put his arms around Regalados
shoulders and asked for forgiveness.
Regalado, however, pushed Chus arms
aside, drew a curved four to five inches long
knife as he uttered Putang Ina, ka Jong! and
stabbed Chu below the left nipple.
As Chu ran towards Villaluz street, Regalado
chased him and picked up two pieces of
firewood along the way with which he hit
Chu.
Appellant Jaime Lopez (Lopez) in the
meantime surfaced from a house beside the
tailoring shop and, armed with a hunting
knife, joined the chase.
Soon appellant Romeo Aragon (Aragon)
also surfaced from the back of the tailoring
shop and also joined the chase.
The three appellants caught up with Chu at
the corner of Lindo and Bandola streets at
which Aragon boxed Chu, causing the latter
to fall. Aragon kicked Chu. Lopez then
stabbed Chu several times as Regalado
looked on. When Chu was no longer
moving, the three appellants left. Chu
expired before reaching the hospital.
Post-mortem examination of Chus body
yielded the following findings:
STAB WOUND LEFT DELTOID 4CM
MUSCLE DEEP
PENETRATING STAB WOUND LEFT
POSTERIOR AXILLARY LINE AT THE
LEVEL OF T10, 3CM
1
PENETRATING STAB WOUND RIGHT
POSTERIOR AXILLARY LINE AT THE
LEVEL OF T8, 1.5 CM
PENETRATING STAB WOUND RIGHT
ANTERIOR TRUNK AT THE LEVEL OF T10,
1 CM
PENETRATING STAB WOUND LEFT
ANTERIOR AXILLARY LINE 1 CM
STAB WOUND LEFT NIPPLE 1 CM
SUBCUTANEOUS DEEP
2 LACERATED WOUNDS LEFT ELBOWS
SKIN DEEP 0.5 CM EACH[4]
Autopsy of Chus body yielded results which
coincided with those of the post-mortem
examination, thus:
Body, embalmed, well-preserved.
Embalming incisions, sutured: neck, antero-
lateral aspect, right, 3.5 cm.; supra-
umbilibical region, right, 1.0 cm.
Contused-abrasions, patellar region,
bilateral right, 5.0 x 11. 5cm; left, 11.0 x
12.0cm.
Incised wounds, modified by suturing and
embalming: chest, infra-mammary region,
right, 1.5 cm.; inguinal region, right, 1.5 cm.;
forearm, proximal third, postero-lateral
aspect, left, 1.6 cm.
Stab wounds, modified by suturing and
embalming:
1. Roughly curved-shaped, 4.5cm.,
edges are clean-cut, oriented vertically,
superior extremity is blunt, inferior extremity
is sharp. Located at the left arm, proximal
third, antero-lateral aspect, 23.0cm. above
the left elbow, directed backward,
downward, and laterally, involving the soft
tissue, cutting the major blood vessels with
an approximate depth of 7.5cm.
2. Roughly spindle-shaped, 2.3cm.,
edges are clean-cut, oriented vertically,
superior extremity is sharp, inferior extremity
is blunt. Located at infra-mammary region,
between sixth (6th) and seventh (7th)
intercostal space, lateral aspect, left,
16.0cm. from anterior median line, directed,
backward, downward, and medially,
involving the soft tissues, into the thoracic
cavity, into the pericardial sac, penetrating
the left ventricle of the heart with an
approximate depth of 10.0cm.
3. Roughly spindle-shaped, 1.8cm.,
edges are clean-cut oriented vertically,
superior extremity is sharp, inferior extremity
is blunt. Located at supra-mammary region;
left, 1.0cm. from anterior median line,
directed backward, sideward, and medially
involving the soft tissues, cutting the
sternum superficially, with an approximate
depth of 5.0cm.
4. Roughly spindle-shaped, 2.0cm.,
edges are clean-cut, oriented vertically,
superior extremity is blunt, inferior extremity
is sharp. Located at the infra-scapular
region, right, 20.0cm. from posterior median
line, directed forward, downward, and
laterally, involving the soft tissues only, with
an approximate depth of 5.0cm.
5. Roughly curved-shaped, 3.5 edges
are clean-cut, oriented horizontally, lateral
extremity is blunt, medial extremity is sharp.
Located at the infra-scapular region, 11.0cm.
from posterior medial line, directed forward,
downward and medially, involving the soft
tissues only with an approximate depth of
5.2cm.
Hemopericardium, residual clotted blood
250cc.
Brain & other visceral organs, pale,
embalmed.
Stomach small amount of grayish food
particles.[5]
Dr. Ricardo M. Rodaje, who conducted the
autopsy, explained that wounds 1 and 5
were caused by a curve-shaped weapon.[6]
At the witness stand,[7] Regalado claimed
as follows:
At 3:00 P.M. on April 25, 1996, after he
bought a hotcake from the hotcake stand of
Angelina Aragon (Angelina), wife of
appellant Aragon and daughter of appellant
Regalado, at the corner of Bandola and
Villaluz streets, Chu approached and choked
him.
He elbowed Chu and extricated himself. He
then left but Chu pursued him as he
(Regalado) proceeded to Angelinas house at
the corner of Espaa and Villaluz streets
where he hid for around two minutes.
When he returned to the hotcake stand, his
son-in-law appellant Lopez summoned him,
telling him I have done something, you
accompany me in going to the police station
because I am going to surrender.
He and Lopez thereupon boarded a tricycad
and repaired to the police station where
Lopez surrendered, handed a knife to the
police, and was detained. As he (Regalado)
2
was about to go home, he was restrained as
he might be waylaid by Chu. The following
morning, he was detained because the
police found him to have participated in the
killing of Chu.
As for appellant Lopez, he interposed
defense of relative and self-defense.[8]
His version goes as follows:
At 3:00 P.M. of April 25, 1996, while he was
at one Lily Balbuenas mahjong house along
Villaluz street, he heard a womans voice
shouting. Police, police, police! He thus
stepped out and saw Chu chasing
Regalado, his father-in-law, prompting him to
go to Regalados nearby house to get a
knife, and to thereafter follow Chu as he was
chasing Regalado. Lopez soon
intercepted Chu who boxed him as he (Chu)
posed Are you going to defend your father-
in-law? He thereupon stabbed Chu several
times and surrendered to the police station
in the company of Regalado.
Appellant Aragon invoked alibi,[9] claiming
that at 3:00 P.M. of April 25, 1996, he went
to the wharf which is 40 meters away from
Angelinas hotcake stand to buy fish. He
waited for 30 minutes for fishermen but no
one came, so he went home. Before
reaching his house he was surprised to see
many people at the corners of Villaluz and
Bandola streets. Angelina soon met him and
told him that Lopez had stabbed Chu
because he choked Regalado.
He later learned that police investigator
Pedic Mangin was looking for him, hence, he
visited the latter who told him that they
would talk things over at the municipal hall.
When he reached the municipal hall, he was
immediately detained.
The defense presented evidence of Chus
supposed reputation as a bully who picked
fights for no reason and who had an existing
criminal record.[10]
Branch 29 of the Bislig City RTC found the
three appellants to have killed Chu, qualified
by treachery which absorbed abuse of
superior strength. The trial court thus
disposed:
WHEREFORE, finding the accused JAIME
LOPEZ alias DODONG, ROGELIO
REGALADO alias ROGER, and ROMEO
ARAGON, all co-principals by direct
participation, guilty beyond reasonable doubt
of the crime of MURDER defined and
penalized under Article 248 of the Revised
Penal Code, as amended by Republic Act
No. 7659, this Court hereby sentences them
to suffer the penalty of Reclusion Perpetua
with all the accessory penalties provided by
law.
To pay the heirs of the victim the sum of one
hundred nine thousand six hundred seventy
five pesos and forty (P109,675.40) centavos
as interment and burial expenses, fifty
thousand (P50,000.00) pesos as life
indemnity twenty-three thousand
(P23,000.00) pesos as attorneys fees, and
ten thousand (P10,000) pesos as exemplary
damages.
To pay the cost.
SO ORDERED.[11]
On appeal, appellants faulted the trial court
for
I
x x x FINDING THAT CONSPIRACY
ATTENDED THE KILLING OF THE VICTIM.
II
x x x NOT CONSIDERING THE DEFENSES
INTERPOSED BY THE ACCUSED-
APPELLANTS.[12]
III
x x x CONVICTING THE ACCUSED
APPELLANTS OF MURDER.[13]
The Court of Appeals affirmed the trial courts
decision,[14] hence, the present appeal.[15]
The appeal is bereft of merit.
This Court finds no reason to overturn the
factual findings of the trial court, especially
since the prosecutions version is culled from
the testimony of eyewitnesses.
Appellants disclaimer of the presence of
conspiracy fails. The evidence shows that
they cooperated in a common design to kill
Chu. Regalado initiated the killing when he
stabbed Chu on the chest, and the two other
appellants joined Regalado in chasing Chu,
with Regalado hitting Chu with firewood
3
along the way. Then, when the three of them
had cornered Chu, Aragon boxed and kicked
Chu, enabling Lopez to stab him several
times. These indicate a conspiracy.
Aragons alibi does not persuade. As the trial
court held:
x x x From the ocular inspection of the wharf
conducted in Hinatuan, Surigao del Sur on
February 26, 2000,[16] it was established
that the wharf was located at the dead-end
portion of Villaluz Street. Aragon was at the
wharf at about the same date and time of the
stabbing incident, allegedly to buy fish. He
was seated at the last step of the wharf. He
stayed there for thirty (30) minutes to wait for
a pump boat bringing in fish but there was
none. At about the time of the incident, the
water level was supposed to be low tide[17]
so that no pump boat, if there was any, can
dock on the wharf. Applying common sense,
nobody in his right mind would wait for about
thirty (30) minutes just to buy fish where no
pump boat is in sight. x x x Aragon was
positively identified by prosecution
witnesses, hence his defense of being at the
wharf does not hold water. For alibi to
prosper, accused must prove not only (1)
that he was somewhere else when the crime
was committed; but (2) it must likewise be
demonstrated that he was so far away that
he could not have been physically present at
the place of the crime or its immediate
vicinity at the time of its commission. In this
case, the wharf was only a few meters from
the scene of the incident. Ergo, Aragon
could have been physically present at the
place or its immediate vicinity at the time of
the commission of the crime. (Citations
omitted)[18]
Neither does Lopezs defense of relative. As
the Court of Appeals held:
Under [Paragaraph 2 of Article 11 of the
Revised Penal Code], the elements of the
justifying circumstance of defense of
relatives are as follows:
1. Unlawful aggression;
2. Reasonable necessity of the means
employed to prevent or repel it;
3. In case provocation was given by the
person attacked, that the one making the
defense had no part therein.
Even if We adopt accused-appellants
version of the incident, We still find the
foregoing elements absent in the case at
bar.
As alleged by Lopez, he merely heard
someone shouting police, police, police! and
when he looked out he allegedly saw his
father-in-law being chased by Chu. He then
went to Regalados house to get a knife and
when he caught up with Chu, he no longer
saw accused-appellant Regalado and it was
only Chu who was there. He allegedly
stabbed Chu because of the latters
threatening words, Are you going to defend
your father-in-law?
We cannot, by any stretch of imagination,
consider said remarks threatening as to
consider it unlawful aggression. It bears
stressing that unlawful aggression, as
defined under the Revised Penal Code,
contemplates assault or at least threatened
assault of an immediate and imminent kind.
There is unlawful aggression when the peril
to ones life, limb or right is either actual or
imminent. To constitute unlawful aggression,
it is necessary that an attack or material
aggression, an offensive act positively
determining the intent of the aggressor to
cause injury shall have been made. A mere
threatening or intimidating attitude is not
sufficientthere must be a real danger to life
and personal safety.
Even assuming ex gratia argumenti, that
there was unlawful aggression on Chus part
when he chased Regalado, Lopez was not
justified in stabbing Chu since as admitted
by him, he did not see accused-appellant
Regalado anymore when he was able to
catch up with Chu. The unlawful aggression
of Chu, had it indeed been present, had
already ceased when upon reaching Chu, as
Regalado, whom Lopez allegedly wanted to
protect, was no longer there. 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.
4
We further do not find any reasonable
necessity in the means employed by Lopez
to repel Chus alleged aggression.
Nowhere in the records is it shown that
when Chu allegedly chased Regalado, the
former was wielding a weapon. Thus, the
intention of Lopez to get a knife for his
protection and that of his father-in-law was
unwarranted.
The fact that Chu allegedly boxed and
taunted him prompting him to stab the victim
several times in retaliation negates the
reasonableness of the means employed to
repel Chus aggression assuming that
indeed, Chu started the aggression. x x x
xxxx
The wounds sustained by Chu xxx indicate
that the assailant who inflicted the same was
more in a killing rage than one who was
merely acting in defense of a relative.[19]
(Underscoring supplied)
Finally, appellants denial of the existence of
treachery in this wise does not convince:
x x x Based on the prosecution witnesses
testimony, the victim was allegedly asking
forgiveness from accused-appellant Rogelio
Regalado and placed his hands on his
shoulder when the latter stabbed the former.
Based from the foregoing, it is apparent that
the victim committed a wrongful act against
herein accused-appellant, which was so
grave that there was a need for him to ask
for forgiveness. Thus, x x x the victim was
expecting a retaliation from herein accused-
appellant.[20] (Underscoring supplied)
The essence of treachery is a deliberate and
sudden attack that renders the victim unable
and unprepared to defend himself by reason
of the suddenness and severity of the attack.
[21]
In the case at bar, Chu was caught off-guard
when, after he was asking forgiveness from
Regalado, the latter suddenly drew a curved
knife and stabbed and pursued the following
victim. And once Regalado and his co-
appellants cornered Chu, Aragon kicked and
punched him while Lopez stabbed him
several times to thus preclude Chua from
defending himself.
WHEREFORE, the appeal is DENIED. The
September 22, 2008 Decision of the Court of
Appeals is AFFIRMED.
Costs against appellant.
SO ORDERED.
===
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. L-33466-67April 20, 1983
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
MAMERTO NARVAEZ, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Gonzalo B. Callanta (counsel de oficio) for
defendant-appellant.
MAKASIAR, J.:
This is an appeal from the decision of the
Court of First Instance of South Cotabato,
Branch I, in Criminal Cases Nos. 1815 and
1816 for murder which, after a joint trial,
resulted in the conviction of the accused in a
decision rendered on September 8, 1970,
with the following pronouncement:
Thus, we have a crime of MURDER qualified
by treachery with the aggravating
circumstance of evident premeditation offset
by the mitigating circumstance of voluntary
surrender. The proper penalty imposable,
therefore, is RECLUSION PERPETUA (Arts.
248 and 64, Revised Penal Code).
Accordingly, finding Mamerto Narvaez guilty
beyond reasonable doubt of the crime of
murder,
5
(a) In Criminal Case No. 1815, he is
hereby sentenced to RECLUSION
PERPETUA, to indemnify the heirs of the
deceased Davis Q. Fleischer in the sum of P
12,000.00 as compensatory damages, P
10,000.00 as moral damages, P 2,000.00 as
attorney's fees, the offended party having
been represented by a private prosecutor,
and to pay the costs;
(b) In Criminal Case No. 1816, he is
hereby sentenced to RECLUSION
PERPETUA, to indemnify the heirs of the
deceased Flaviano Rubia in the sum of
P12,000.00 as compensatory damages,
P10,000.00 as moral damages, P2,000.00
as attorney's fees, the offended party having
been represent by a private prosecutor, and
to pay the costs (p. 48, rec.).
The facts are summarized in the People's
brief, as follows:
At about 2:30 in the afternoon of August 22,
1968, Graciano Juan, Jesus Verano and
Cesar Ibanez together with the two
deceased Davis Fleischer and Flaviano
Rubia, were fencing the land of George
Fleischer, father of deceased Davis
Fleischer. The place was in the boundary of
the highway and the hacienda owned by
George Fleischer. This is located in the
municipality of Maitum, South Cotabato. At
the place of the fencing is the house and rice
drier of appellant Mamerto Narvaez (pp.
179-182, t.s.n., Pieza II). At that time,
appellant was taking his rest, but when he
heard that the walls of his house were being
chiselled, he arose and there he saw the
fencing going on. If the fencing would go on,
appellant would be prevented from getting
into his house and the bodega of his ricemill.
So he addressed the group, saying 'Pare, if
possible you stop destroying my house and
if possible we will talk it over what is good,'
addressing the deceased Rubia, who is
appellant's compadre. The deceased
Fleischer, however, answered: 'No, gademit,
proceed, go ahead.' Appellant apparently
lost his equilibrium and he got his gun and
shot Fleischer, hitting him. As Fleischer fell
down, Rubia ran towards the jeep, and
knowing there is a gun on the jeep, appellant
fired at Rubia, likewise hitting him (pp.
127-133, t.s.n., Defense transcript). Both
Fleischer and Rubia died as a result of the
shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9,
Appellant's Brief, p.161, rec.).
It appears, however, that this incident is
intertwined with the long drawn out legal
battle between the Fleischer and Co., Inc. of
which deceased Fleischer was the
secretary-treasurer and deceased Rubia the
assistant manager, on the one hand, and the
land settlers of Cotabato, among whom was
appellant.
From the available records of the related
cases which had been brought to the Court
of Appeals (CA-G.R. Nos. 28858-R and
50583-R) and to this Court on certiorari
(G.R. No. L-26757 and L-45504), WE take
judicial notice of the following antecedent
facts:
Appellant was among those persons from
northern and central Luzon who went to
Mindanao in 1937 and settled in Maitum, a
former sitio of Kiamba and now a separate
municipality of South Cotabato. He
established his residence therein, built his
house, cultivated the area, and was among
those who petitioned then President Manuel
L. Quezon to order the subdivision of the
defunct Celebes Plantation and nearby
Kalaong Plantation totalling about 2,000
hectares, for distribution among the settlers.
Shortly thereafter, Fleischer and Company,
headed by George W. Fleischer, an
American landowner in Negros Oriental, filed
sales application No. 21983 on June 3, 1937
over the same area formerly leased and
later abandoned by Celebes Plantation
Company, covering 1,017.2234 hectares.
Meanwhile, the subdivision was ordered and
a public land surveyor did the actual survey
in 1941 but the survey report was not
submitted until 1946 because of the
outbreak of the second world war. According
to the survey, only 300 hectares Identified as
Lots Nos. 22, 26 and 38, Ps. 176 Kiamba,
were set aside for Sales Application No.
21983, while the rest were subdivided into
sublots of 5 to 6 hectares each to be
distributed among the settlers (pp. 32-33,
G.R. No. L-45504).
6
The 300 hectares set aside for the sales
application of Fleischer and Company was
declared open for disposition, appraised and
advertised for public auction. At the public
auction held in Manila on August 14, 1948,
Fleischer and Company was the only bidder
for P6,000.00. But because of protests from
the settlers the corresponding award in its
favor was held in abeyance, while an
investigator was sent by the Director of
Lands to Kiamba in the person of Atty. Jose
T. Gozon Atty. Gozon came back after ten
days with an amicable settlement signed by
the representative of the settlers. This
amicable settlement was later repudiated by
the settlers, but the Director of Lands, acting
upon the report of Atty. Gozon, approved the
same and ordered the formal award of the
land in question to Fleischer and Company.
The settlers appealed to the Secretary of
Agriculture and Natural Resources, who,
however, affirmed the decision in favor of the
company.
On May 29, 1950, the settlers filed Civil
Case No. 240 in the Court of First Instance
of Cotabato which then consisted only of
one sala, for the purpose of annulling the
order of the Secretary of Agriculture and
Natural Resources which affirmed the order
of the Director of Lands awarding the
contested land to the company. The settlers
as plaintiffs, lost that case in view of the
amicable settlement which they had
repudiated as resulting from threats and
intimidation, deceit, misrepresentation and
fraudulent machination on the part of the
company. They appealed to the Court of
Appeals (CA-G.R. No. 28858-R) which
likewise affirmed on August 16, 1965 the
decision of the Court of First Instance in
favor of the company.
This resulted in the ouster of the settlers by
an order of the Court of First Instance dated
September 24, 1966, from the land which
they had been occupying for about 30 years.
Among those ejected was the appellant who,
to avoid trouble, voluntarily dismantled his
house, built in 1947 at a cost of around
P20,000.00, and transferred to his other
house which he built in 1962 or 1963 near
the highway. The second house is not far
from the site of the dismantled house. Its
ground floor has a store operated by Mrs.
June Talens who was renting a portion
thereof. He also transferred his store from
his former residence to the house near the
highway. Aside from the store, he also had a
rice mill located about 15 meters east of the
house and a concrete pavement between
the rice mill and the house, which is used for
drying grains and copra.
On November 14, 1966, appellant was
among the settlers on whose behalf Jose V.
Gamboa and other leaders filed Civil Case
No. 755 in the Court of First Instance of
Cotabato, Branch I. to obtain an injunction or
annulment of the order of award with prayer
for preliminary injunction. During the
pendency of this case, appellant on
February 21, 1967 entered into a contract of
lease with the company whereby he agreed
to lease an area of approximately 100 to 140
square meters of Lot No. 38 from the
company (Exh. 9, p. 1, Folder of Exhibits for
Defense) for a consideration of P16.00
monthly. According to him, he signed the
contract although the ownership of the land
was still uncertain, in order to avoid trouble,
until the question of ownership could be
decided. He never paid the agreed rental,
although he alleges that the milling job they
did for Rubia was considered payment. On
June 25, 1968, deceased Fleischer wrote
him a letter with the following tenor:
You have not paid six months rental to
Fleischers & Co., Inc. for that portion of land
in which your house and ricemill are located
as per agreement executed on February 21,
1967. You have not paid as as even after
repeated attempts of collection made by Mr.
Flaviano Rubia and myself.
In view of the obvious fact that you do not
comply with the agreement, I have no
alternative but to terminate our agreement
on this date.
I am giving you six months to remove your
house, ricemill, bodega, and water pitcher
pumps from the land of Fleischers & Co.,
Inc. This six- month period shall expire on
December 31, 1966.
In the event the above constructions have
not been removed within the six- month
period, the company shall cause their
7
immediate demolition (Exhibit 10, p. 2,
supra).
On August 21, 1968, both deceased,
together with their laborers, commenced
fencing Lot 38 by putting bamboo posts
along the property line parallel to the
highway. Some posts were planted right on
the concrete drier of appellant, thereby
cutting diagonally across its center (pp.
227-228, t.s.n., Vol. 2), with the last post just
adjacent to appellant's house (p. 231, t.s.n.,
supra). The fence, when finished, would
have the effect of shutting off the
accessibility to appellant's house and rice
mill from the highway, since the door of the
same opens to the Fleischers' side. The
fencing continued on that fateful day of
August 22, 1968, with the installation of four
strands of barbed wire to the posts.
At about 2:30 p.m. on the said day, appellant
who was taking a nap after working on his
farm all morning, was awakened by some
noise as if the wall of his house was being
chiselled. Getting up and looking out of the
window, he found that one of the laborers of
Fleischer was indeed chiselling the wall of
his house with a crowbar (p. 129, t.s.n., Vol.
6), while deceased Rubia was nailing the
barbed wire and deceased Fleischer was
commanding his laborers. The jeep used by
the deceased was parked on the highway.
The rest of the incident is narrated in the
People's Brief as above-quoted. Appellant
surrendered to the police thereafter, bringing
with him shotgun No. 1119576 and claiming
he shot two persons (Exh. Pp. 31, Defense
Exhibits).
Appellant now questions the propriety of his
conviction, assigning the following errors:
First Assignment of Error: That the lower
court erred in convicting defendant-appellant
despite the fact that he acted in defense of
his person; and
Second Assignment of Error: That the court
a quo also erred in convicting defendant-
appellant although he acted in defense of his
rights (p. 20 of Appellant's Brief, p. 145,
rec.).
The act of killing of the two deceased by
appellant is not disputed. Appellant admitted
having shot them from the window of his
house with the shotgun which he
surrendered to the police authorities. He
claims, however, that he did so in defense of
his person and of his rights, and therefore he
should be exempt from criminal liability.
Defense of one's person or rights is treated
as a justifying circumstance under Art. 11,
par. 1 of the Revised Penal Code, but in
order for it to be appreciated, the following
requisites must occur:
First. Unlawful aggression;
Second. Reasonable necessity of the
means employed to prevent or repel it;
Third. Lack of sufficient provocation on the
part of the person defending himself (Art. 11,
par. 1, Revised Penal Code, as amended).
The aggression referred to by appellant is
the angry utterance by deceased Fleischer
of the following words: "Hindi, sigue,
gademit, avante", in answer to his request
addressed to his compadre, the deceased
Rubia, when he said, "Pare, hinto mona
ninyo at pag-usapan natin kung ano ang
mabuti" (pp. 227-229, t.s.n., Vol. 6). This
was in reaction to his having been
awakened to see the wall of his house being
chiselled. The verbal exchange took place
while the two deceased were on the ground
doing the fencing and the appellant was up
in his house looking out of his window (pp.
225-227, supra). According to appellant,
Fleischer's remarks caused this reaction in
him: "As if, I lost my senses and
unknowingly I took the gun on the bed and
unknowingly also I shot Mr. Fleischer,
without realizing it, I shot Mr. Fleischer" (p.
132, supra). As for the shooting of Rubia,
appellant testified:
When I shot Davis Fleischer, Flaviano Rubia
was nailing and upon hearing the shot, Mr.
Rubia looked at Mr. Fleischer and when Mr.
Fleischer fell down, Mr. Rubia ran towards
the jeep and knowing that there was a
firearm in the jeep and thinking that if he will
take that firearm he will kill me, I shot at him
(p. 132, supra, Emphasis supplied).
8
The foregoing statements of appellant were
never controverted by the prosecution. They
claim, however, that the deceased were in
lawful exercise of their rights of ownership
over the land in question, when they did the
fencing that sealed off appellant's access to
the highway.
A review of the circumstances prior to the
shooting as borne by the evidence reveals
that five persons, consisting of the deceased
and their three laborers, were doing the
fencing and chiselling of the walls of
appellant's house. The fence they were
putting up was made of bamboo posts to
which were being nailed strands of barbed
wire in several layers. Obviously, they were
using tools which could be lethal weapons,
such as nail and hammer, bolo or bamboo
cutter, pliers, crowbar, and other necessary
gadgets. Besides, it was not disputed that
the jeep which they used in going to the
place was parked just a few steps away, and
in it there was a gun leaning near the
steering wheel. When the appellant woke up
to the sound of the chiselling on his walls,
his first reaction was to look out of the
window. Then he saw the damage being
done to his house, compounded by the fact
that his house and rice mill will be shut off
from the highway by the fence once it is
finished. He therefore appealed to his
compadre, the deceased Rubia, to stop what
they were doing and to talk things over with
him. But deceased Fleischer answered
angrily with 'gademit' and directed his men
to proceed with what they were doing.
The actuation of deceased Fleischer in
angrily ordering the continuance of the
fencing would have resulted in the further
chiselling of the walls of appellant's house as
well as the closure of the access to and from
his house and rice mill-which were not only
imminent but were actually in progress.
There is no question, therefore, that there
was aggression on the part of the victims:
Fleischer was ordering, and Rubia was
actually participating in the fencing. This was
indeed aggression, not on the person of
appellant, but on his property rights.
The question is, was the aggression
unlawful or lawful? Did the victims have a
right to fence off the contested property, to
destroy appellant's house and to shut off his
ingress and egress to his residence and the
highway?
Article 30 of the Civil Code recognizes the
right of every owner to enclose or fence his
land or tenements.
However, at the time of the incident on
August 22, 1968, Civil Case no. 755 for
annulment of the order of award to Fleischer
and Company was still pending in the Court
of First Instance of Cotabato. The parties
could not have known that the case would
be dismissed over a year after the incident
on August 22, 1968, as it was dismissed on
January 23, 1970 on ground of res judicata,
in view of the dismissal in 1965 (by the Court
of Appeals) of Civil Case No. 240 filed in
1950 for the annulment of the award to the
company, between the same parties, which
the company won by virtue of the
compromise agreement in spite of the
subsequent repudiation by the settlers of
said compromise agreement; and that such
1970 dismissal also carried the dismissal of
the supplemental petition filed by the
Republic of the Philippines on November 28,
1968 to annul the sales patent and to cancel
the corresponding certificate of title issued to
the company, on the ground that the Director
of Lands had no authority to conduct the
sale due to his failure to comply with the
mandatory requirements for publication. The
dismissal of the government's supplemental
petition was premised on the ground that
after its filing on November 28, 1968,
nothing more was done by the petitioner
Republic of the Philippines except to adopt
all the evidence and arguments of plaintiffs
with whom it joined as parties-plaintiffs.
Hence, it is reasonable to believe that
appellant was indeed hoping for a favorable
judgment in Civil Case No. 755 filed on
November 14, 1966 and his execution of the
contract of lease on February 21, 1967 was
just to avoid trouble. This was explained by
him during cross-examination on January
21, 1970, thus:
It happened this way: we talked it over with
my Mrs. that we better rent the place
because even though we do not know who
really owns this portion to avoid trouble. To
avoid trouble we better pay while waiting for
9
the case because at that time, it was not
known who is the right owner of the place.
So we decided until things will clear up and
determine who is really the owner, we
decided to pay rentals (p. 169, t.s.n., Vol.6).
In any case, Fleischer had given him up to
December 31, 1968 (Exh.10, p. 2, Defense
Exhibits) within which to vacate the land. He
should have allowed appellant the peaceful
enjoyment of his properties up to that time,
instead of chiselling the walls of his house
and closing appellant's entrance and exit to
the highway.
The following provisions of the Civil Code of
the Philippines are in point:
Art. 536. In no case may possession
be acquired through force or intimidation as
long as there is a possessor who objects
thereto. He who believes that he has an
action or a right to deprive another of the
holding of a thing must invoke the aid of the
competent court, if the holder should refuse
to deliver the thing.
Art. 539. Every possessor has a right
to be respected in his possession; and
should he be disturbed therein he shall be
protected in or restored to said possession
by the means established by the laws and
the Rules of Court (Articles 536 and 539,
Civil Code of the Philippines).
Conformably to the foregoing provisions, the
deceased had no right to destroy or cause
damage to appellant's house, nor to close
his accessibility to the highway while he was
pleading with them to stop and talk things
over with him. The assault on appellant's
property, therefore, amounts to unlawful
aggression as contemplated by law.
Illegal aggression is equivalent to assault or
at least threatened assault of immediate and
imminent kind (People vs. Encomiendas, 46
SCRA 522).
In the case at bar, there was an actual
physical invasion of appellant's property
which he had the right to resist, pursuant to
Art. 429 of the Civil Code of the Philippines
which provides:
Art. 429. The owner or lawful possessor of a
thing has the right to exclude any person
from the enjoyment and disposal thereof.
For this purpose, he may use such force as
may be reasonably necessary to repel or
prevent an actual or threatened unlawful
physical invasion or usurpation of his
property (Emphasis supplied).
The reasonableness of the resistance is also
a requirement of the justifying circumstance
of self-defense or defense of one's rights
under paragraph 1 of Article 11, Revised
Penal Code. When the appellant fired his
shotgun from his window, killing his two
victims, his resistance was disproportionate
to the attack.
WE find, however, that the third element of
defense of property is present, i.e., lack of
sufficient provocation on the part of
appellant who was defending his property.
As a matter of fact, there was no provocation
at all on his part, since he was asleep at first
and was only awakened by the noise
produced by the victims and their laborers.
His plea for the deceased and their men to
stop and talk things over with him was no
provocation at all.
Be that as it may, appellant's act in killing the
deceased was not justifiable, since not all
the elements for justification are present. He
should therefore be held responsible for the
death of his victims, but he could be credited
with the special mitigating circumstance of
incomplete defense, pursuant to paragraph
6, Article 13 of the Revised Penal Code.
The crime committed is homicide on two
counts. The qualifying circumstance of
treachery cannot be appreciated in this case
because of the presence of provocation on
the part of the deceased. As WE held earlier
in People vs. Manlapaz (55 SCRA 598), the
element of a sudden unprovoked attack is
therefore lacking.
Moreover, in order to appreciate alevosia, "it
must clearly appear that the method of
assault adopted by the aggressor was
deliberately chosen with a special view to
the accomplishment of the act without risk to
the assailant from any defense that the party
assailed might have made. This cannot be
10
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.
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
11
the part of the appellant-and by two generic
mitigating circumstance of voluntary
surrender and passion and obfuscation.
Article 249 of the Revised Penal Code
prescribes the penalty for homicide as
reclusion temporal. Pursuant to Article 69,
supra, the penalty lower by one or two
degrees shall be imposed if the deed is not
wholly excusable by reason of the lack of
some of the conditions required to justify the
same. Considering that the majority of the
requirements for defense of property are
present, the penalty may be lowered by two
degrees, i.e., to prision correccional And
under paragraph 5 of Article 64, the same
may further be reduced by one degree, i.e.,
arresto mayor, because of the presence of
two mitigating circumstances and no
aggravating circumstance.
The civil liability of the appellant should be
modified. In the case of Zulueta vs. Pan
American World Airways (43 SCRA 397), the
award for moral damages was reduced
because the plaintiff contributed to the
gravity of defendant's reaction. In the case at
bar, the victims not only contributed but they
actually provoked the attack by damaging
appellant's properties and business.
Considering appellant's standing in the
community, being married to a municipal
councilor, the victims' actuations were
apparently designed to humiliate him and
destroy his reputation. The records disclose
that his wife, councilor Feliza Narvaez, was
also charged in these two cases and
detained without bail despite the absence of
evidence linking her to the killings. She was
dropped as a defendant only upon motion of
the prosecution dated October 31, 1968. (p.
14, CFI rec. of Crim. Case No. 1816), but
acted upon on November 4, 1968 (p. 58, CFI
rec. of Criminal Case No. 1815).
Moreover, these cases arose out of an
inordinate desire on the part of Fleischer and
Company, despite its extensive landholdings
in a Central Visayan province, to extend its
accumulation of public lands to the
resettlement areas of Cotabato. Since it had
the capability-financial and otherwise-to
carry out its land accumulation scheme, the
lowly settlers, who uprooted their families
from their native soil in Luzon to take
advantage of the government's resettlement
program, but had no sufficient means to fight
the big landowners, were the ones
prejudiced. Thus, the moral and material
suffering of appellant and his family
deserves leniency as to his civil liability.
Furthermore, Article 39 of the Revised Penal
Code requires a person convicted of prision
correccional or arrests mayor and fine who
has no property with which to meet his civil
liabilities to serve a subsidiary imprisonment
at the rate of one (1) day for each P 2.50.
However, the amendment introduced by
Republic Act No. 5465 on April 21, 1969
made the provisions of Art. 39 applicable to
fines only and not to reparation of the
damage caused, indemnification of
consequential damages and costs of
proceedings. Considering that Republic Act
5465 is favorable to the accused who is not
a habitual delinquent, it may be given
retroactive effect pursuant to Article 22 of the
Revised Penal Code.
WHEREFORE, FINDING APPELLANT
GUILTY BEYOND REASONABLE DOUBT
OF ONLY TWO (2) HOMICIDES,
MITIGATED BY THE PRIVILEGED
EXTENUATING CIRCUMSTANCE OF
INCOMPLETE SELF-DEFENSE AS WELL
AS BY TWO (2) GENERIC MITIGATING
CIRCUMSTANCES OF VOLUNTARY
SURRENDER AND OBFUSCATION,
WITHOUT ANY AGGRAVATING
CIRCUMSTANCE, APPELLANT IS HEREBY
SENTENCED TO SUFFER AN
IMPRISONMENT OF FOUR (4) MONTHS
OF ARRESTO MAYOR, TO INDEMNIFY
EACH GROUP OF HEIRS OF DAVIS
FLEISCHER AND OF FLAVIANO RUBIA IN
THE SUM OF FOUR THOUSAND (P
4,000.00) PESOS, WITHOUT SUBSIDIARY
IMPRISONMENT AND WITHOUT ANY
AWARD FOR MORAL DAMAGES AND
ATTORNEY'S FEES.
CONSIDERING THAT APPELLANT HAS
BEEN UNDER DETENTION FOR ALMOST
FOURTEEN (14) YEARS NOW SINCE HIS
VOLUNTARY SURRENDER ON AUGUST
22,1968, HIS IMMEDIATE RELEASE IS
HEREBY ORDERED. NO COSTS.
SO ORDERED.
12
Fernando, C.J., Teehankee, Concepcion Jr.,
Guerrero, De Castro, Melencio-Herrera,
Escolin Vasquez and Relova, JJ., concur.
Aquino, J., is on leave.
Plana, J., 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 Plana, J., in the result.
GUTIERREZ, JR., J., dissenting:
While I agree with the order to release the
appellant, I am constrained to dissent in
part. It is true that Art. 429, Civil Code of the
Philippines, provides that the owner or legal
possessor of a thing may use such force as
may be reasonably necessary to repel or
prevent an actual or threatened unlawful
physical invasion or usurpation of his
property. It seems to me, however, that an
attack on the person defending his property
is an indispensable element where an
accused pleads self-defense but what is
basically defended is only property.
Defense of property is not of such
importance as the right to life and defense of
property can only be invoked when it is
coupled with some form of attack on the
person of one entrusted with said property.
The defense of property, whether complete
or incomplete, to be available in
prosecutions for murder or homicide must be
coupled with an attack by the one getting the
property on the person defending it.
In the case now before Us, there is
absolutely no evidence that an attack was
attempted, much less made upon the person
of appellant. The mere utterance "No,
gademit proceed, go ahead" is not the
unlawful aggression which entitles appellant
to the pela of self-defense. I agree with the
majority opinion that the crime is homicide
but without any privileged mitigating
circumstance.
Therefore, since the appellant is guilty
beyond reasonable doubt of two (2)
homicides, mitigated by the two generic
mitigating circumstances of voluntary
surrender and obfuscation, without any
aggravating circumstance, maximum the
sentence the appellant should have served
was prision mayor plus the indemnification
to each group of heirs of Davis Fleischer and
of Flamiano Rubia of the sum of Four
Thousand (P4,000.00) Pesos, without
subsidiary imprisonment, but without any
award for moral damages and attorney's
fees.
Considering that appellant has been under
detention for almost fourteen (14) years now
since August 22, 1968, he has served the
penalty and should be released.
Separate Opinions
ABAD SANTOS, J., dissenting:
I dissent. The self-defense of the Revised
Penal Code refers to unlawful aggression on
persons, not property Plana, J., in the result.
GUTIERREZ, JR., J., dissenting:
While I agree with the order to release the
appellant, I am constrained to dissent in
part. It is true that Art. 429, Civil Code of the
Philippines, provides that the owner or legal
possessor of a thing may use such force as
may be reasonably necessary to repel or
prevent an actual or threatened unlawful
physical invasion or usurpation of his
property. It seems to me, however, that an
attack on the person defending his property
is an indispensable element where an
accused pleads self-defense but what is
basically defended is only property.
Defense of property is not of such
importance as the right to life and defense of
property can only be invoked when it is
coupled with some form of attack on the
person of one entrusted with said property.
The defense of property, whether complete
13
or incomplete, to be available in
prosecutions for murder or homicide must be
coupled with an attack by the one getting the
property on the person defending it.
In the case now before Us, there is
absolutely no evidence that an attack was
attempted, much less made upon the person
of appellant. The mere utterance "No,
gademit proceed, go ahead" is not the
unlawful aggression which entitles appellant
to the pela of self-defense. I agree with the
majority opinion that the crime is homicide
but without any privileged mitigating
circumstance.
Therefore, since the appellant is guilty
beyond reasonable doubt of two (2)
homicides, mitigated by the two generic
mitigating circumstances of voluntary
surrender and obfuscation, without any
aggravating circumstance, maximum the
sentence the appellant should have served
was prision mayor plus the indemnification
to each group of heirs of Davis Fleischer and
of Flamiano Rubia of the sum of Four
Thousand (P4,000.00) Pesos, without
subsidiary imprisonment, but without any
award for moral damages and attorney's
fees.
Considering that appellant has been under
detention for almost fourteen (14) years now
since August 22, 1968, he has served the
penalty and should be released.
===
FIRST DIVISION
[G.R. No. 155258. October 7, 2003]
CONRADO CANO y SAMPANG, petitioner,
vs. PEOPLE OF THE PHILIPPINES,
respondent.
DECISION
YNARES-SANTIAGO, J.:
The primordial issue to be resolved in this
petition for certiorari is whether or not
petitioner killed his brother in self-defense.
Petitioner Conrado Cano y Sampang and his
deceased brother Orlando Cano were rivals
in the Rush ID Photo business and had
booths along the sidewalk of Rizal Avenue,
Sta. Cruz, Manila fronting the Philippine
Trust Bank and Uniwide Sales Department
Store. The fateful altercation which
culminated in the fatal stabbing of Orlando
Cano stemmed out of this rivalry, particularly
the incident where Conrado took the
business permit from the booth of Orlando
without his permission thus incurring the
latters ire.
The prosecutions version of what transpired
as summarized in the Peoples brief[1] shows
that in the morning of May 31, 1993, at
about 7:00 oclock, the victim Orlando Cano
arrived at the Rush ID Booth of petitioner
located below the LRT line in Rizal Avenue,
Sta. Cruz, Manila. The victim asked David
Olivario, an employee of petitioner, where
the latter was. The victim angrily said that
petitioner was pakialamero. He also said,
Putang ina niya! Why did he Xerox our
permit. Since petitioner had not yet arrived,
the victim returned to his own Rush ID booth
located several meters away.[2]
Later, at about 9:30 a.m., petitioner arrived
at his Rush ID booth. After giving supplies to
Olivario, petitioner said he was going to the
City Hall. He faced the mirror and started to
comb his hair. The victim suddenly arrived
and held petitioner on the shoulders and
turned him around. The victim asked him,
Anong gusto mong mangyari? Accused did
not answer.[3]
The victim tried to stab petitioner with a
balisong but the latter was able to run and
lock himself inside the dark room inside his
booth. The victim followed him and tried to
open the door of the dark room and shouted,
Lumabas ka diyan! Putang ina mo,
papatayin kita! Petitioner did not come out.
The victim tried to force the door open by
kicking it and stabbed the door with his
balisong. The door of the dark room
suddenly opened and petitioner emerged
carrying a pair of scissors. The victim and
petitioner struck at each other. During the
scuffle, the scissors fell from petitioners
hand. He then grabbed the knife of the
victim who, in turn, picked up the scissors.
They again attacked each other.[4]
The victim fell and his wife rushed to his
side. Petitioner fled from the scene. The
victims wife asked for assistance from the
14
people in the vicinity. The victim was then
loaded on a jeep and was rushed to a
hospital, but he was dead on arrival.[5]
The autopsy report submitted by the medico-
legal officer of the Western Police District,
Dr. Manuel Lagonera, shows that the victim
sustained at least thirty (30) stab wounds,
six (6) of which were fatal.[6] On the other
hand, petitioner suffered only an incised
wound on the right hand measuring six (6)
cm., which required less than nine (9) days
of treatment.
Petitioner had a different account of what
transpired. He testified that on May 31, 1993
at around 9:30 a.m. he went to his Rush ID
booth in front of the Philtrust Bank to deliver
supplies to his photographer, David Olivario.
[7] After handing over said supplies to
Olivario, petitioner intended to go to the
Manila City Hall to apply for a business
permit.[8]
Petitioners earlier application for a permit
was denied.[9] He sought a reconsideration
from the city officials and argued that his
brother was issued a similar permit. In order
to prove his point, he borrowed the permit of
his brother from his nephew, Wilson Reyes,
to have it machine copied.[10] After doing
so, petitioner returned it.[11] The victim
apparently resented this because petitioner
was informed by David Olivario that Gloria
Cano later went to petitioners stall angrily
inquiring why they got the permit.[12]
As petitioner was combing his hair and
preparing to leave for the Manila City Hall,
the victim, Orlando, suddenly appeared from
behind, grabbed him by the left shoulder and
jerked him around so that they were face to
face.[13] As they stood face to face, Orlando
menacingly said, Anong gusto mong
mangyari?[14] Petitioner noticed Orlando
holding a balisong, and he ran to the dark
room of his stall.[15]
The victim pursued him and tried to force
open the locked dark room door by kicking it
and stabbing it with the fan knife.[16] He
kept shouting, Get out of there! Pakialamero
ka! Get out of there and I will kill you![17]
The door suddenly gave way and, as it
opened, the victim charged at petitioner, but
he was able to evade the attack. Snatching
a pair of scissors nearby, petitioner retaliated
but the scissors fell from his grasp because
it was parried by the victim.[18] Petitioner
then grabbed the hand of the victim holding
the balisong and they grappled to gain
possession thereof. He eventually wrested
control of the knife and as he stood
momentarily, the victim picked up the
scissors and again lunged at him.[19]
With nowhere to go, petitioner was forced to
defend himself from the onslaught of the
victim who was armed with the nine-inch
long pair of pointed scissors.[20] No
bystanders tried to pacify them as they
engaged in their deadly struggle for almost
two (2) minutes. Suddenly, the victim
collapsed and fell bloodied to the floor.[21]
Petitioner stooped to lift his brother up,
intending to bring him to the hospital.
However, he was hit by the victims wife with
a chair. Then, she started shouting,
Holdupper![22] Petitioner was forced to flee
from the scene for fear of being lynched by
the people who had gathered around armed
with clubs. The people pursued him but
when he saw a policeman coming in his
direction, he threw the balisong away and
raised his hands in surrender.[23] He was
then brought to the police precinct and later
to the hospital for treatment of his injuries.
[24]
Petitioner was charged with Homicide in an
Information[25] which alleges
That on or about May 31, 1993, in the City of
Manila, Philippines, the said accused, with
intent to kill, did then and there willfully,
unlawfully and feloniously attack, assault
and use personal violence upon one
ORLANDO CANO y SAMPANG, by then
and there stabbing the latter on the different
parts of his body, thereby inflicting upon the
said ORLANDO CANO Y SAMPANG mortal
and fatal wounds which were the direct and
immediate cause of his death thereafter.
Contrary to law.
The case was docketed as Criminal Case
No. 93-121668 and filed with the Regional
Trial Court of Manila, Branch 31.
15
Upon arraignment, petitioner pleaded not
guilty to the offense charged. The case
thereupon proceeded to trial. After trial, the
court a quo rendered judgment[26] finding
petitioner guilty beyond reasonable doubt of
the crime and sentencing him to serve an
imprisonment of seventeen (17) years, four
(4) months and one (1) day of reclusion
temporal and to indemnify the heirs of the
deceased P50,000.00 plus costs.
Petitioner interposed an appeal to the Court
of Appeals, where it was docketed as CA-
G.R. CR No. 19254.
During the pendency of the appeal,[27]
Gloria Cano, the widow of the victim,
executed a Sinumpaang Salaysay[28]
stating, among others, that petitioner merely
acted in self-defense and that she was
withdrawing the charge against him. This
sworn statement became the basis of an
Urgent Motion for New Trial[29] on the
ground of newly discovered evidence filed
by counsel for petitioner.
This motion for new trial was, however,
denied by the Court of Appeals in a
Resolution dated March 19, 1998.[30]
The appellate court subsequently rendered
judgment affirming petitioners conviction but
modifying the penalty to an indeterminate
sentence of imprisonment ranging from nine
(9) years and one (1) day of prision mayor,
as minimum, to fourteen (14) years and
eight (8) months of reclusion temporal, as
maximum. Petitioner was likewise ordered to
pay the heirs of the victim actual damages of
P24,605.75; P50,000.00 as moral damages
and another P50,000.00 as civil indemnity
ex delicto plus costs.[31]
Preliminarily, the Solicitor General argues
that the petition raises merely factual issues,
such as whether or not petitioner is entitled
to the justifying circumstance of self-defense
and the mitigating circumstance of
provocation or threat and voluntary
surrender. These issues, says the Solicitor,
are not proper for a petition for review under
Rule 45 of the Rules of Civil Procedure.
Concededly, those who seek to avail of the
remedies provided by the rules must adhere
to the requirements thereof, failure of which
the right to do so is lost. It is, however,
equally settled that rules of procedure are
not to be applied in a very rigid, technical
sense and are used only to help secure
substantial justice. If a technical and rigid
enforcement of the rules is made, their aim
would be defeated.[32] They should be
liberally construed so that litigants can have
ample opportunity to prove their claims and
thus prevent a denial of justice due to
technicalities.[33]
Therefore, we shall proceed to resolve the
issue of whether or not petitioner is entitled
to invoke the justifying circumstance of self-
defense, considering that what is at stake is
not merely his liberty, but also the distinct
possibility that he will bear the stigma of a
convicted felon and be consigned to the fate
of being a social pariah for the rest of his life.
As can be seen from the foregoing, the
prosecution and the defense have
diametrically opposed factual versions of
what transpired immediately preceding the
killing. Our task is to determine which of
them is the truth. In resolving such conflict,
dealing as it does with the credibility of
witnesses, the usual rule is for us to respect
the findings of the trial court considering that
it was in a better position to decide the
question, having heard the witnesses
themselves and having observed their
deportment and manner of testifying during
trial.[34] Nonetheless, this rule is
circumscribed by well-established
exceptions.[35]
In the case at bar, the record shows
circumstances of weight and influence which
have been overlooked, or the significance of
which has been misinterpreted, that if
considered would affect the result of the
case.[36]
For self-defense to prosper, petitioner must
prove by clear and convincing evidence the
following elements: (1) unlawful aggression
on the part of the victim; (2) reasonable
necessity of the means employed to prevent
or repel it; and (3) lack of sufficient
provocation on the part of the person
defending himself.[37] Although all the three
elements must concur, self-defense must
rest firstly on proof of unlawful aggression on
16
the part of the victim. If no unlawful
aggression has been proved, no self-
defense may be successfully pleaded,
whether complete or incomplete.[38] In other
words in self-defense, unlawful aggression is
a primordial element. It presupposes 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.[39]
In the case at bar, there are several material
circumstances which were ignored by both
the court a quo and the appellate tribunal.
First, contrary to the findings of both the
appellate and trial courts, there are facts
extant on record which clearly shows that it
was an armed victim who initially attacked
the petitioner with a balisong. Petitioner
testified on the assault thus:
Atty. Ferrer:
What happened after that when Orlando
Cano grabbed you and came face to face
with him?
A. I answered him none but he was in a
menacing position with his hands around
something and I suddenly ran away.
Q. What was that something in the hands of
Orlando Cano that made you run away?
A. Balisong 29, Sir.
Atty. Ferrer:
And where did you run to?
A. I went inside my booth because that is the
only place I can run to.
Q. And what happened inside your booth, if
any?
A. He also ran after me and then when I was
inside we were having a tug of war of the
doorknob which I tried to close and which he
tried to open.
Q. What happened after that?
A. But I was able to close the door but he
kept on kicking the door that I turned deaf.
Q. What else happened, if any?
A. While he was kicking, he was also
stabbing the door with the 29 (balisong) he
was holding.
Q. And you said you heard the thudding of
the door making noise, what happened if
any?
A. He kept on shouting, Get out of there!
Pakialamero ka! Get out of there and I will
kill you.
Q. What did you do did you go out?
A. While he was shouting I did not notice
that the door was not completely closed
because the lock went on and the door
suddenly opened.
Q. What happened after the door got open?
A. When the door opened he again rushed
me, stabbed and I was able to evade it.
Atty. Ferrer:
What else happened?
Witness:
A. I was able to grab a scissors and that was
the time I retaliated.
Q. Who owned this scissors?
A. That scissors was mine because it is
used in cutting paper.
Q. Now, you said you retaliated after
grabbing a pair of scissors where did you
retaliate?
A. I was about to retaliate in the door of the
room because the room was very small.
Q. Where you able to retaliate?
A. No, sir, I was not able to retaliate because
the scissors fell when he was able to parry it.
17
Q. What happened after that, after that piece
of scissors fell from your hold?
A. I took hold of his hand holding the
balisong and we had a scuffle to get hold or
possession of the balisong.
Q. What happened after the scuffling for the
balisong?
A. After one (1) minute I was able to grab
possession of the balisong.
Q. What happened after that?
A. When I was able to get hold of the
balisong I just remained standing and I
just . . .
Q. What else happened?
A. He was able to pick up the scissors that I
dropped and he again launched [himself] at
me [with] the scissors.
Q. What did you do, if any?
A. That was the time when my mind was
confused and I dont have any place to go
and I tried to defend myself and we fought
each other.
Atty. Ferrer :
And at the time when you said you fought
each other, Orlando Cano was holding the
scissors and you were holding the balisong,
correct?
A. Yes, sir.[40]
David Olivario, who was five meters away
and saw what transpired, corroborated
petitioners account.[41] He remained
steadfast and unwavering on cross-
examination despite intense grilling by the
prosecution[42] and further clarificatory
questioning from the trial court itself.[43]
Second, the physical evidence is more in
accord with petitioners version of what
transpired, specifically his assertion that it
was the victim who was armed and persisted
in his attack on the petitioner even though
the latter locked himself inside the dark room
of his stall to protect himself. The findings of
Police Investigator SPO3 Julian Z.
Bustamante contained in his Advance
Information Report[44] discloses that [H]oles
were observed at the door near the door
lock of suspects rush ID photo booth
apparently made by a hard pointed
instrument[45] Aside from stating that a fan
knife and a pair of scissors which both
yielded positive results for traces of human
blood were recovered, the report went
further to note that the bloodied scissor were
(sic) recovered in front of suspects rush ID
photo booth door.[46]
The foregoing entries of the Advance
Information Report, particularly that referring
to the location of the bloodied scissors,
supports petitioners claim that when he
could no longer avoid the unlawful
aggression of the victim, he was compelled
to grab at the instrument inside the booth to
defend himself. However, the scissors fell
from his grasp, thus forcing him to
desperately grapple for possession of the
fan knife.
Third, circumstances prior to the fatal
incident shows that it was the victim who
purposely sought to confront the petitioner
because the latter had his business permit
machine copied without his permission.
Maria Cano, an aunt of the victim and
petitioner, testified thus:
Q: And Orlando Cano, did he tell you any
reason why he was waiting for Conrado
Cano [at] that particular morning?
A: Because he was very angry and said that
there will be an encounter between them.
Atty. Ferrer:
What did you do, if any?
Witness:
A: You brothers you should calm down
because you are brothers.
Q: By the way what was the reason why, if
you know why, Orlando told you that silay
magtutuos, quoting your own words?
18
A: Orlando Cano is mad because Conrado
Cano got Orlandos business permit and had
it xeroxed and after xeroxing it and he
returned the permit of Orlando Cano.
Q: Could you tell us how Orlando Cano
uttered those words magtutuos?
A: Orlando Cano told me this is the day
when we will have a confrontation and at this
juncture, I even tapped [his] right pocket, I
did not see what was there but I saw the
handle.
xxxxxxxxx
Q: As the aunt of the two (2) what was your
reaction when Orlando told you that?
A: I told, Orlando, calm down because you
are brothers and if something bad that will
happen (sic) your mother will suffer because
of the incident.
Atty. Ferrrer:
And what was the reaction of Orlando, if any,
after you said those words of advice?
A: Orlando Cano answered me, well, shall I
remain silent and will not utter any word at
all?
Q: And was that that (sic) word confined to
Orlando?
A: No, Sir, because I also advised Gloria.
Q And what was the advise you gave
Gloria?
A: I told Gloria because the only one who
can prevent this incident is you because
Orlando is your husband.
Q: And what was the reaction, if any of
Gloria Cano?
A: Gloria told me, there is nothing I can do
because they are brothers and they are
responsible for their own lives.
Q: What else happened, if any?
A: That was the time I bid goodbye.[47]
(emphasis and italics supplied)
Fourth, the record reveals that while indeed
numerous wounds were sustained by the
victim, the Medico-Legal Officer who
conducted the autopsy admitted that of the
thirty-five (35) wounds supposedly inflicted,
thirty-three (33) were scratches and
contusions while only six (6) were
penetrating or stab wounds.[48] As regards
the finding that petitioner suffered only one
hand wound, it should be stressed that the
superficiality of the nature of the wounds
inflicted on the accused does not, per se,
negate self-defense. Indeed, to prove self-
defense, the actual wounding of the person
defending himself is not necessary. It is
sufficient that the aggression be attempted
so as to give rise to the right to prevent it.
[49] The act of a person armed with a bladed
weapon pursuing another constitutes
unlawful aggression because it signifies the
pursuers intent to commit an assault with
this weapon.[50]
The particular circumstances which
confronted the petitioner at the time of the
incident condoned the means he employed
to protect his life. It must be remembered
that the measure of rational necessity is to
be found in the situation as it appeared to
petitioner at the time when the blow was
struck. The law does not require that he
should mete out his blows in such manner
that upon a calm and deliberate review of
the incident it will not appear that he
exceeded the precise limits of what was
absolutely necessary to put his antagonist
hors de combat, or that he struck one blow
more than was absolutely necessary to save
his own life; or that he failed to hold his hand
so as to avoid inflicting a fatal wound where
a less severe stroke might have served the
purpose. Under such conditions, an accused
cannot be expected to reflect coolly nor wait
after each blow to determine the effects
thereof.[51]
. . . the reasonableness of the means
employed to repel an actual and positive
aggression should not be gauged by the
standards that the mind of a judge, seated in
a swivel chair in a comfortable office, free
from care and unperturbed in his security,
may coolly and dispassionately set down.
19
The judge must place himself in the position
of the object of the aggression or his
defender and consider his feelings, his
reactions to the events or circumstances. It
is easy for one to state that the object of the
aggression or his defender could have taken
such action, adopted such remedy, or
resorted to other means. But the defendant
has no time for cool deliberation, no
equanimity of mind to find the most
reasonable action, remedy or means to. He
must act from impulse, without time for
deliberation. The reasonableness of the
means employed must be gauged by the
defenders hopes and sincere beliefs, not by
the judges.[52]
Fifth, there was lack of sufficient provocation
on the part of petitioner. When the law
speaks of provocation either as a mitigating
circumstance or as an essential element of
self-defense, it requires that the same be
sufficient or proportionate to the act
committed and that it be adequate to arouse
one to its commission. It is not enough that
the provocative act be unreasonable or
annoying.[53] This third requisite of self-
defense is present: (1) when no provocation
at all was given to the aggressor; (2) when,
even if provocation was given, it was not
sufficient; (3) when even if the provocation
was sufficient, it was not given by the person
defending himself; or (4) when even if a
provocation was given by the person
defending himself, it was not proximate and
immediate to the act of aggression.[54]
Petitioner borrowed the permit of the victim
and had it photocopied without the latters
permission two (2) days before the incident.
[55] The victim and his wife resented this.
However, this can hardly be considered a
provocation sufficient to merit so deadly an
assault with a bladed weapon. Moreover, the
act was neither immediate nor proximate.
[56] What, in fact, appears on record is the
bellicose temperament of the victim and his
spouse who, despite the advice of their Aunt
Maria Cano to calm down, still persisted in
confronting petitioner. When the question is
raised who between the accused and the
offended party gave provocation, the
circumstances of subjective, objective and
social character may be considered in
reaching a definite conclusion.[57] Thus an
accused, to prove provocation in connection
with his plea of self-defense, may show that
the victim, as in this case, had a
quarrelsome and irascible disposition.[58]
Sixth, two other notable circumstances on
record tend to show that petitioner was
impelled by the instinct of self-preservation
rather than the murderous urge of one bent
on killing. The first is when petitioner was
able to wrest the balisong from the victim, he
never took advantage of the opportunity to
attack his already weaponless brother.
Rather, he stood still and was forced to act
only when the victim picked up the scissors
and lunged at him again.[59] The second
instance is when the victim fell. Had
petitioner been actuated by homicidal
intentions, he would have persisted in his
attack on his prostrate brother. He did
nothing of the sort. He, in fact, intended to lift
the victim up and bring him to the hospital
but the sudden appearance of the victims
wife who hit him with a chair forced him to
flee. Moreover, armed people were attracted
by the shouts of the victims wife and had
gathered and started pursuing him.[60]
Seventh, while the general policy is for the
courts not to attach any persuasive
evidentiary value to the affidavit of retraction
of the victims widow, such sworn statement
acquires a weightier and more decisive
evidentiary consideration when taken in
conjunction with the other prevailing facts in
this case. Thus, it has oft been said that
where inculpatory facts and circumstances
are susceptible of two or more
interpretations, one of which is consistent
with the innocence of the accused while the
others may be compatible with a finding of
guilt, the Court must acquit the accused
because the evidence does not fulfill the test
of moral certainty required for conviction.[61]
All told, evidence shows that petitioner acted
in lawful self-defense. Hence, his act of
killing the victim was attended by a justifying
circumstance, for which no criminal and civil
liability can attach.[62] Article 11 (1) of the
Revised Penal Code expressly provides that
anyone who acts in lawful self-defense does
not incur any criminal liability. Likewise,
petitioner is not civilly liable for his lawful act.
The only instance when a person who
commits a crime with the attendance of a
20
justifying circumstance incurs civil liability is
when he, in order to avoid an evil or injury,
does an act which causes damage to
another, pursuant to subdivision 4 of Article
11 of the Revised Penal Code.[63]
Otherwise stated, if a person charged with
homicide successfully pleads self-defense,
his acquittal by reason thereof will extinguish
his civil liability.[64]
WHEREFORE, in view of all the foregoing,
the judgment appealed from is REVERSED
and SET ASIDE. Petitioner Conrado Cano y
Sampang is ACQUITTED of the crime
charged against him and his immediate
release from custody is ordered unless there
is another cause for his continued detention.
Costs de oficio.
SO ORDERED.
===
GERMAN MANAGEMENT AND SERVICES
INC. VS CA (177 SCRA 495)
===
EN BANC
[G.R. No. 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.
DECISION
FRANCISCO, J.:
Through their separate petitions for review,
[1] Luis A. Tabuena and Adolfo M. Peralta
(Tabuena and Peralta, for short) appeal the
Sandiganbayan decision dated October 12,
1990,[2] as well as the Resolution dated
December 20, 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
(P25,000,000.00).
In addition, he shall suffer the penalty of
perpetual special disqualification from public
office.
(2) In Criminal Case No. 11759, accused
Luis A. Tabuena is sentenced to suffer the
penalty of imprisonment of seventeen (17)
years and one (1) day of reclusion temporal
as minimum, and twenty (20) years of
reclusion temporal as maximum, and to pay
a fine of TWENTY-FIVE MILLION PESOS
(P25,000,000.00), the amount malversed.
He shall also reimburse the Manila
International Airport Authority the sum of
TWENTY-FIVE MILLION PESOS
(P25,000,000.00).
In addition, he shall suffer the penalty of
perpetual special disqualification from public
office.
(3) In Criminal Case No. 11760, accused
Luis A. Tabuena and Adolfo M. Peralta are
each sentenced to suffer the penalty of
imprisonment of seventeen (17) years and
one (1) day of reclusion temporal as
minimum and twenty (20) years of reclusion
temporal as maximum and for each of them
to pay separately a fine of FIVE MILLION
PESOS (P5,000,000.00) the amount
malversed. They shall also reimburse jointly
and severally the Manila International Airport
Authority the sum of FIVE MILLION PESOS
(P5,000,000.00).
21

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 managers check for said
amount in the name of accused Luis A.
Tabuena chargeable against MIAAs Savings
Account No. 274-500-354-3 in the PNB
Extension Office at the Manila International
Airport in Pasay City, purportedly as partial
payment to the Philippine National
Construction Corporation (PNCC), the
mechanics of which said accused Tabuena
would personally take care of, when both
accused well knew that there was no
outstanding obligation of MIAA in favor of
PNCC, and after the issuance of the above-
mentioned managers check, accused Luis A.
Tabuena encashed the same and thereafter
both accused misappropriated and
converted the proceeds thereof to their
personal use and benefit, to the damage and
prejudice of the government in the aforesaid
amount.
CONTRARY TO LAW.
xxx
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 managers check for said
amount in the name of accused Luis A.
Tabuena chargeable against MIAAs Savings
Account No. 274-500-354-3 in the PNB
Extension Office at the Manila International
Airport in Pasay City, purportedly as partial
payment to the Philippine National
Construction Corporation (PNCC), the
mechanics of which said accused Tabuena
would personally take care of, when both
accused well knew that there was no
outstanding obligation of MIAA in favor of
PNCC, and after the issuance of the above-
mentioned managers check, accused Luis A.
Tabuena encashed the same and thereafter
both accused misappropriated and
converted the proceeds thereof to their
personal use and benefit, to the damage and
prejudice of the government in the aforesaid
amount.
CONTRARY TO LAW.
xxx
That on or about the 29th day of January,
1986, and for sometime subsequent thereto,
in the City of Pasay, Philippines, and within
22
the jurisdiction of this Honorable Court,
accused Luis A. Tabuena and Adolfo M.
Peralta, both public officers, being then the
General Manager and Acting Manager,
Financial Services Department, respectively,
of the Manila International Airport Authority
(MIAA), and accountable for public funds
belonging to the MIAA, they being the only
ones authorized to make withdrawals
against the cash accounts of MIAA pursuant
to its board resolutions, conspiring,
confederating and confabulating with each
other, did then and there wilfully, unlawfully,
feloniously, and with intent to defraud the
government, take and misappropriate the
amount of FIVE MILLION PESOS
(P5,000,000.00) from MIAA funds by
applying for the issuance of a managers
check for said amount in the name of
accused Luis A. Tabuena chargeable against
MIAAs Savings Account No. 274-500-354-3
in the PNB Extension Office at the Manila
International Airport in Pasay City,
purportedly as partial payment to the
Philippine National Construction Corporation
(PNCC), the mechanics of which said
accused Tabuena would personally take
care of, when both accused well knew that
there was no outstanding obligation of MIAA
in favor of PNCC, and after the issuance of
the above-mentioned managers check,
accused Luis A. Tabuena encashed the
same and thereafter both accused
misappropriated and converted the proceeds
thereof to their personal use and benefit, to
the damage and prejudice of the
government in the aforesaid amount.
CONTRARY TO LAW.
Gathered from the documentary and
testimonial evidence are the following
essential antecedents:
Then President Marcos instructed Tabuena
over the phone to pay directly to the
presidents office and in cash what the MIAA
owes the Philippine National Construction
Corporation (PNCC), to which Tabuena
replied, Yes, sir, I will do it. About a week
later, Tabuena received from Mrs. Fe Roa-
Gimenez, then private secretary of Marcos,
a Presidential Memorandum dated January
8, 1986 (hereinafter referred to as MARCOS
Memorandum) reiterating in black and white
such verbal instruction, to wit:
Office of the President
of the Philippines
Malacaang
January 8, 1986
MEMO TO: The General Manager
Manila International Airport Authority
You are hereby directed to pay immediately
the Philippine National Construction
Corporation, thru this Office, the sum of
FIFTY FIVE MILLION (P55,000,000.00)
PESOS in cash as partial payment of MIAAs
account with said Company mentioned in a
Memorandum of Minister Roberto Ongpin to
this Office dated January 7, 1985 and duly
approved by this Office on February 4, 1985.
Your immediate compliance is appreciated.
(Sgd.) FERDINAND MARCOS.[4]
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 PNCCs Advances for MIA Development
Project
May I request your approval of the attached
recommendations of Minister Jesus S.
Hipolito for eight (8) supplemental contracts
pertaining to the MIA Development Project
(MIADP) between the Bureau of Air
Transport (BAT) and Philippine National
Construction Corporation (PNCC), formerly
CDCP, as follows:
23

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
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
24
escalation billings, may we request for His
Excellencys approval for a deferment of the
repayment of PNCCs advances to the extent
of P30 million corresponding to about 30%
of P99.1 million in escalation claims of
PNCC, of which P32.5 million has been
officially recognized by MIADP consultants
but could not be paid due to lack of
funding.Korte
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 managers check for said amount
payable to Tabuena. The check was
encashed, however, at the PNB Villamor
Branch. Dabao and the cashier of the PNB
Villamor branch counted the money after
which, Tabuena took delivery thereof. The
P25 Million in cash were then placed in
peerless boxes and duffle bags, loaded on a
PNB armored car and delivered on the same
day to the office of Mrs. Gimenez located at
Aguado Street fronting Malacaang. Mrs.
Gimenez did not issue any receipt for the
money received.
Similar circumstances surrounded the
second withdrawal/encashment and delivery
of another P25 Million, made on January 16,
1986.
The third and last withdrawal was made on
January 31, 1986 for P5 Million. Peralta was
Tabuenas co-signatory to the letter- request
for a managers check for this amount.
Peralta accompanied Tabuena to the PNB
Villamor branch as Tabuena requested him
to do the counting of the P5 Million. After the
counting, the money was placed in two (2)
peerless boxes which were loaded in the
trunk of Tabuenas car. Peralta did not go
with Tabuena to deliver the money to Mrs.
Gimenez office at Aguado Street. It was only
upon delivery of the P5 Million that Mrs.
Gimenez issued a receipt for all the amounts
she received from Tabuena. The receipt,
dated January 30, 1986, reads:
Malacaang
Manila
January 30, 1986
RECEIVED FROM LOUIE TABUENA THE
TOTAL AMOUNT OF FIFTY FIVE MILLION
PESOS (P55,000,000.00) as of the following
dates:
Jan. 10 - P25,000,000.00
Jan. 16 - 25,000,000.00
Jan. 30 - 5,000,000.00
(Sgd.) Fe Roa-Gimenez
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
25
cash as partial payment of MIAAs
obligations to PNCC, and that he (Tabuena)
was of the belief that MIAA indeed had
liabilities to PNCC. Peralta for his part
shared the same belief and so he heeded
the request of Tabuena, his superior, for him
(Peralta) to help in the release of P5 Million.
With the rejection by the Sandiganbayan of
their claim of good faith which ultimately led
to their conviction, Tabuena and Peralta now
set forth a total of ten (10) errors[6]
committed by the Sandiganbayan for this
Courts 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:
x x x accused x x x conspiring, confederating
and confabulating with each other, did then
and there wilfully, unlawfully, feloniously, and
with intent to defraud the government, take
and misappropriated the amount of x x x.
But it would appear that they were convicted
of malversation by negligence. In this
connection, the Courts attention is directed
to p. 17 of the December 20, 1991
Resolution (denying Tabuenas and Peraltas
motion for reconsideration) wherein the
Sandiganbayan said:
xxxxxxxxx
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.Sclaw
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. (Underscoring
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:
x x x even on the putative assumption that
the evidence against petitioner yielded a
case of malversation by negligence but the
information was for intentional malversation,
under the circumstances of this case his
conviction under the first mode of
misappropriation would still be in order.
Malversation is committed either
intentionally or by negligence. The dolo or
the culpa present in the offense is only a
modality in the perpetration of the felony.
Even if the mode charged differs from the
mode proved, the same offense of
malversation is involved and conviction
thereof is proper. x x x.
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
26
Quizon vs. Justice of the Peace of Bacolor,
G.R. No. L-6641, July 28, 1995, but a
distinct crime in our Penal Code, designated
as a quasi offense in our Penal Code, it may
however be said that a conviction for the
former can be had under an information
exclusively charging the commission of a
willful offense, upon the theory that the
greater includes the lesser offense. This is
the situation that obtains in the present case.
Appellant was charged with willful
falsification but from the evidence submitted
by the parties, the Court of Appeals found
that in effecting the falsification which made
possible the cashing of the checks in
question, appellant did not act with criminal
intent but merely failed to take proper and
adequate means to assure himself of the
identity of the real claimants as an ordinary
prudent man would do. In other words, the
information alleges acts which charge willful
falsification but which turned out to be not
willful but negligent. This is a case covered
by the rule when there is a variance between
the allegation and proof, and is similar to
some of the cases decided by this Tribunal.
xxx
Moreover, Section 5, Rule 116, of the Rules
of Court does not require that all the
essential elements of the offense charged in
the information be proved, it being sufficient
that some of said essential elements or
ingredients thereof be established to
constitute the crime proved. x x x.
The fact that the information does not allege
that the falsification was committed with
imprudence is of no moment for here this
deficiency appears supplied by the evidence
submitted by appellant himself and the result
has proven beneficial to him. Certainly,
having alleged that the falsification has been
willful, it would be incongruous to allege at
the same time that it was committed with
imprudence for a charge of criminal intent is
incompatible with the concept of negligence.
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. Elvia,[11] the Court
stressed that:
To constitute a crime, the act must, except in
certain crimes made such by statute, be
accompanied by a criminal intent, or by such
negligence or indifference to duty or to
consequences as, in law, is equivalent to
criminal intent. The maxim is actus non facit
reum, nisi mens sit 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
27
premise flows the following reasons and/or
considerations that would buttress his
innocence of the crime of malversation.
First. Tabuena had no other choice but to
make the withdrawals, for that was what the
MARCOS Memorandum required him to do.
He could not be faulted if he had to obey
and strictly comply with the presidential
directive, and to argue otherwise is
something easier said than done. Marcos
was undeniably Tabuenas 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
Tabuenas compliance, without hesitation nor
any question, with the MARCOS
Memorandum. Tabuena therefore is entitled
to the justifying circumstance of Any person
who acts in obedience to an order issued by
a superior for some lawful purpose.[16] The
subordinate-superior relationship between
Tabuena and Marcos is clear. And so too, is
the lawfulness of the order contained in the
MARCOS Memorandum, as it has for its
purpose partial payment of the liability of one
government agency (MIAA) to another
(PNCC). However, the unlawfulness of the
MARCOS Memorandum was being argued,
on the observation, for instance, that the
Ongpin Memo referred to in the presidential
directive reveals a liability of only about
P34.5 Million. The Sandiganbayan in this
connection said:
Exhibits 2 and 2-a (pages 1 and 2 of the
memorandum of Min. Ongpin to the
President dated January 7, 1985) were
mainly:
a.) for the approval of eight Supplemental
Contracts; and
b.) a request for partial deferment of
payment by PNCC for advances made for
the MIAA Development Project, while at the
same time recognizing some of the PNCCs
escalation billings which would result in
making payable to PNCC the amount of
P34.5 million out of existing MIAA Project
funds.
Thus:
xxx
To allow PNCC to collect partially its billings,
and in consideration of its pending
escalation billings, may we request for His
Excellencys approval for a deferment of
repayment of PNCCs advances to the extent
of P30 million corresponding to about 30%
of P99.1 million in escalation claims of
PNCC, of which P32.6 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]
xxxxxxxxx
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.
28
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. Ongpins Memo of January 7,
1985 could not therefore serve as a basis for
the Presidents order to withdraw P55 million.
[18]
Granting this to be true, it will not
nevertheless affect Tabuenas good faith so
as to make him criminally liable. What is
more significant to consider is that the
MARCOS Memorandum is patently legal (for
on its face it directs payment of an
outstanding liability) and that Tabuena acted
under the honest belief that the P55 million
was a due and demandable debt and that it
was just a portion of a bigger liability to
PNCC. This belief is supported by defense
witness Francis Monera who, on direct
examination, testified that:
ATTY ANDRES
Q Can you please show us in this Exhibit 7
and 7-a where it is indicated the receivables
from MIA as of December 31, 1985?
A As of December 31, 1985, the receivables
from MIA is shown on page 2, marked as
Exhibit 7-a, sir, P102,475,392.35.
x x x x x x x x x.[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.
x x x x x x x x x.[20]
ATTY ANDRES
Q When you said these are accounts
receivable, do I understand from you that
these are due and demandable?
A Yes, sir.[21]
Thus, even if the order is illegal if it is
patently legal and the subordinate is not
aware of its illegality, the subordinate is not
liable, for then there would only be a mistake
of fact committed in good faith.[22] Such is
the ruling in Nassif v. 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:
29
There were no vouchers to authorize the
disbursements in question. There were no
bills to support the disbursement. There
were no certifications as to the availability of
funds for an unquestionably staggering sum
of P55 Million.[25]
c) failure to protest (Sec. 106, P.D. 1445)
But this deviation was inevitable under the
circumstances Tabuena was in. He did not
have the luxury of time to observe all
auditing procedures of disbursement
considering the fact that the MARCOS
Memorandum enjoined his immediate
compliance with the directive that he forward
to the Presidents Office the P55 Million in
cash. Be that as it may, Tabuena surely
cannot escape responsibility for such
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 auditors and
the provincial treasurers offices. And if those
payments ran counter to auditing rules and
regulations, they did not amount to a
criminal offense and he should only be held
administratively or civilly liable.
Likewise controlling is US v. Elvia[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 Opinions reference to certain
provisions in the revised Manual on
Certificate of Settlement and Balances -
apparently made to underscore Tabuenas
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 x x x which
are contrary to law, morals, public policy and
good customs even if he acted under order
or instructions of his superiors.
Third. The Sandiganbayan made the finding
that Tabuena had already converted and
misappropriated the P55 Million when he
delivered the same to Mrs. Gimenez and not
to the PNCC, proceeding from the following
definitions/concepts of conversion:
Conversion, as necessary element of
offense of embezzlement, being the
fraudulent appropriation to ones own use of
anothers property which does not
necessarily mean to ones personal
advantage but every attempt by one person
to dispose of the goods of another without
right as if they were his own is conversion to
his own use. (Terry v. Water Improvement
Dist. No. 5 of Tulsa County, 64 p. 2d 904,
906, 179 Okl. 106)
- At p. 207, Words and Phrases,
Permanent Edition 9A.
Conversion is any interference subversive of
the right of the owner of personal property to
enjoy and control it. The gist of conversion is
the usurpation of the owners right of
property, and not the actual damages
inflicted. Honesty of purpose is not a
defense. (Ferrera v. Parks, 23 p. 883, 885
19 Or. 141)
- At page 168, id.
xxxxxxxxx
The words convert and misappropriate
connote an act of using or disposing of
anothers property as if it were ones own.
They presuppose that the thing has been
devoted to a purpose or use different from
that agreed upon. To appropriate to ones
own use includes not only conversion to
ones personal advantage but every attempt
30
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
Presidents office (thru Mrs. Gimenez), in
strict compliance with the MARCOS
Memorandum, was not at all affected even if
it later turned out that PNCC never received
the money. Thus, it has been said that:
Good faith in the payment of public funds
relieves a public officer from the crime of
malversation.
xxxxxxxxx
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 Acebedos conviction after finding
that the sums were converted by his
secretary Urbina without the knowledge and
participation of Acebedo. The Court said,
which we herein adopt:
No conspiracy between the appellant and
his secretary has been shown in this case,
nor did such conspiracy appear in the case
against Urbina. No guilty knowledge of the
theft committed by the secretary was shown
on the part of the appellant in this case, nor
does it appear that he in any way
participated in the fruits of the crime. If the
secretary stole the money in question
without the knowledge or consent of the
appellant and without negligence on his part,
then certainly the latter can not be convicted
of embezzling the same money or any part
thereof.[32]
31
In Ang, accused-petitioner, as MWSS bill
collector, allowed part of his collection to be
converted into checks drawn in the name of
one Marshall Lu, a non-customer of MWSS,
but the checks were subsequently
dishonored. Ang was acquitted by this Court
after giving credence to his assertion that
the conversion of his collections into checks
were thru the machinations of one Lazaro
Guinto, another MWSS collector more senior
to him. And we also adopt the Courts
observation therein, that:
The petitioners alleged negligence in
allowing the senior collector to convert cash
collections into checks may be proof of poor
judgment or too trusting a nature insofar as
a superior officer is concerned but there
must be stronger evidence to show fraud,
malice, or other indicia of deliberateness in
the conspiracy cooked up with Marshall Lu.
The prosecution failed to show that the
petitioner was privy to the conspirational
scheme. Much less is there any proof that
he profited from the questioned acts. Any
suspicions of conspiracy, no matter how
sincerely and strongly felt by the MWSS,
must be converted into evidence before
conviction beyond reasonable doubt may be
imposed.[33]
The principles underlying all that has been
said above in exculpation of Tabuena
equally apply to Peralta in relation to the P5
Million for which he is being held
accountable, i.e., he acted in good faith
when he, upon the directive of Tabuena,
helped facilitate the withdrawal of P5 Million
of the P55 Million of the MIAA funds.
This is not a sheer case of blind and
misguided obedience, but obedience in good
faith of a duly executed order. Indeed,
compliance to a patently lawful order is
rectitude far better than contumacious
disobedience. In the case at bench, the
order emanated from the Office of the
President and bears the signature of the
President himself, the highest official of the
land. It carries with it the presumption that it
was regularly issued. And on its face, the
memorandum is patently lawful for no law
makes the payment of an obligation illegal.
This fact, coupled with the urgent tenor for
its execution constrains one to act swiftly
without question. Obedientia est legis
essentia. Besides, the case could not be
detached from the realities then prevailing.
As aptly observed by Mr. Justice Cruz in his
dissenting opinion:
We reject history in arbitrarily assuming that
the people were free during the era and that
the judiciary was independent and fearless.
We know it was not; even the Supreme
Court at that time was not free. This is an
undeniable fact that we can not just blink
away. Insisting on the contrary would only
make our sincerity 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 accuseds basic constitutional right to
due process. Respect for the Constitution, to
borrow once again Mr. Justice Cruzs words,
is more important than securing a conviction
based on a violation of the rights of the
accused.[35] While going over the records,
we were struck by the way the
Sandiganbayan actively took part in the
questioning of a defense witness and of the
accused themselves. Tabuena and Peralta
may not have raised this as an error, there is
nevertheless no impediment for us to
consider such matter as additional basis for
a reversal since the settled doctrine is that
an appeal throws the whole case open to
review, and it becomes the duty of the
appellate court to correct such errors as may
be found in the judgment appealed from
whether they are made the subject of
assignments of error or not.[36]
Simply consider the volume of questions
hurled by the Sandiganbayan. At the taking
of the testimony of Francis Monera, then
Senior Assistant Vice President and
Corporate Comptroller of PNCC, Atty.
Andres asked sixteen (16) questions on
direct examination. Prosecutor Viernes only
asked six (6) questions on cross-
examination in the course of which the court
interjected a total of twenty-seven (27)
questions (more than four times Prosecutor
Viernes questions and even more than the
combined total of direct and cross-
examination questions asked by the
counsels). After the defense opted not to
conduct any re-direct examination, the court
32
further asked a total of ten (10) questions.
[37] The trend intensified during Tabuenas
turn on the witness stand. Questions from
the court after Tabuenas cross-examination
totalled sixty-seven (67).[38] This is more
than five times Prosecutor Viernes questions
on cross-examination (14), and more than
double the total of direct examination and
cross-examination questions which is thirty-
one (31) [17 direct examination questions by
Atty. Andres plus 14 cross-examination
questions by Prosecutor Viernes]. In
Peraltas case, the Justices, after his cross-
examination, propounded a total of forty-one
(41) questions.[39]
But more importantly, we note that the
questions of the court were in the nature of
cross examinations characteristic of
confrontation, probing and insinuation.[40]
(The insinuating type was best exemplified
in one question addressed to Peralta, which
will be underscored.) Thus we beg to quote
in length from the transcripts pertaining to
witness Monera, Tabuena and Peralta.
(Questions from the Court are marked with
asterisks and italicized for emphasis.)
(MONERA)
(As a background, what was elicited from his
direct examination is that the PNCC had
receivables from MIAA totalling
P102,475,392.35, and although such
receivables were largely billings for
escalation, they were nonetheless all due
and demandable. What follows are the
cross-examination of Prosecutor Viernes
and the court questions).
CROSS-EXAMINATION BY PROS.
VIERNES
Q You admit that as shown by these Exhibits
7 and 7-a, the items here represent mostly
escalation billings. Were those escalation
billings properly transmitted to MIA
authorities?
A I dont have the documents right now to
show that they were transmitted, but I have
a letter by our President, Mr. Olaguer, dated
July 6, 1988, following up for payment of the
balance of our receivables from MIA, sir.
*AJ AMORES
*Q This matter of escalation costs, is it not a
matter for a conference between the MIA
and the PNCC for the determination as to
the correct amount?
A I agree, your Honor. As far as we are
concerned, our billings are what we deemed
are valid receivables. And, in fact, we have
been following up for payment.
*Q This determination of the escalation costs
was it accepted as the correct figure by
MIA?
A I dont have any document as to the
acceptance by MIA, your Honor, but our
company was able to get a document or a
letter by Minister Ongpin to President
Marcos, dated January 7, 1985, with a
marginal note or approval by former
President Marcos.
*PJ GARCHITORENA
*Q Basically, the letter of Mr. Ongpin is to
what effect?
A The subject matter is approval of the
supplementary contract and request for
partial deferment of payment for MIA
Development Project, your Honor.
*Q It has nothing to do with the
implementation of the escalation costs?
A The details show that most of the accounts
refer to our escalations, your Honor.
*Q Does that indicate the computation for
escalations were already billed or you do not
have any proof of that?
A Our subsidiary ledger was based on
billings to MIA and this letter of Minister
Ongpin appears to have confirmed our
billings to MIA, your Honor.
*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
33
million, if my recollection is correct, your
Honor.
*PJ GARCHITORENA
*Q Were the payments made before or after
February 1986, since Mr. Olaguer is a new
entrant to your company?
WITNESS
A The payments were made after December
31, 1985 but I think the payments were
made before the entry of our President, your
Honor. Actually, the payment was in the form
of: assignments to State Investment of about
P23 million; and then there was P17.8
million application against advances made
or formerly given; and there were payments
to PNCC of about P2.6 million and there was
a payment for application on withholding and
contractual stock of about P1 million; that
summed up to P44.4 million all in all. And
you deduct that from the P102 million, the
remaining balance would be about P57
million.
*PJ GARCHITORENA
*Q What you are saying is that, for all the
payments made on this P102 million, only
P2 million had been payments in cash?
A Yes, your Honor.
*Q The rest had been adjustments of
accounts, assignments of accounts, or
offsetting of accounts?
A Yes, your Honor.
*Q This is as of December 31, 1985?
A The P102 million was as of December 31,
1985, your Honor, but the balances is as of
August 1987.
*Q We are talking now about the P44 million,
more or less, by which the basic account
has been reduced. These reductions,
whether by adjustment or assignment or
actual delivery of cash, were made after
December 31, 1985?
WITNESS
A Yes, your Honor.
*Q And your records indicate when these
adjustments and payments were made?
A Yes, your Honor.
*AJ AMORES
*Q You said there were partial payments
before of these escalation billings. Do we get
it from you that there was an admission of
these escalation costs as computed by you
by MIA, since there was already partial
payments?
A Yes, your Honor.
*Q How were these payments made before
February 1986, in case or check, if there
were payments made?
A The P44 million payments was in the form
of assignments, your Honor.
*PJ GARCHITORENA
*Q The question of the Court is, before
December 31, 1985, were there any
liquidations made by MIA against these
escalation billings?
A I have not reviewed the details of the
record, your Honor. But the ledger card
indicates that there were collections on page
2 of the Exhibit earlier presented. It will
indicate that there were collections shown by
credits indicated on the credit side of the
ledger.
*AJ AMORES
*Q Your ledger does not indicate the manner
of giving credit to the MIA with respect to the
escalation billings. Was the payment in cash
or just credit of some sort before December
31, 1985?
A Before December 31, 1985, the reference
of the ledger are official receipts and I
suppose these were payments in cash, your
Honor.
34
*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
adjustments, by offsets and by P2 million of WITNESS
cash payment?
A The Company or the management is of
A Yes, your Honor. the opinion that this letter, a copy of which
we were able to get, is a confirmation of the
*AJ AMORES acceptance of our billings, sir.

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

A Yes, your Honor, as subsequent Continue. *PJ GARCHITORENA

settlements.
*Q After December 31, 1985?
A Yes, your Honor.
*Q And they have liquidated that, as you
described it, by way of assignments,
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?
*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?

35
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?
36
A I have a copy of the assignment to State (TABUENA) *Q So January 30 is the date of the last
Investment but I have not yet reviewed the delivery?
same, your Honor. (In his direct examination, he testified that he
caused the preparation of the checks A I remember it was on the 31st of January,
*AJ AMORES totalling P55 Million pursuant to the your Honor. What happened is that, I did not
MARCOS Memorandum and that he notice the date placed by Mrs. Gimenez.
*Q As of now, is this obligation of MIA, now thereafter delivered said amount in cash on
NAIA, paid to PNCC? the three (3) dates as alleged in the *Q Are you telling us that this Exhibit 3 was
information to Marcos private secretary Mrs. incorrectly dated?
A There is still a balance of receivables from Jimenez at her office at Aguado Street, who
MIA as evidenced by a collection letter by thereafter issued a receipt. Tabuena also A Yes, your Honor.
our President dated July 6, 1988, your denied having used the money for his own
Honor. The amount indicated in the letter is personal use.) *Q Because the third delivery was on
P55 million. January 31st and yet the receipt was dated
CROSS-EXAMINATION BY PROS. January 30?
PJ GARCHITORENA VIERNES
A Yes, your Honor.
Any clarifications you would like to make Mr. Q The amount of P55 million as covered by
Estebal? the three (3) checks Mr. Tabuena, were *Q When was Exhibit 3 delivered actually by
delivered on how many occasions? Mrs. Gimenez?
ATTY ESTEBAL
A Three times, sir. A January 31st, your Honor.
None, your Honor.
Q And so, on the first two deliveries, you did PJ GARCHITORENA
PJ GARCHITORENA not ask for a receipt from Mrs. Gimenez?
Continue.
Mr. Viernes? A Yes, sir.
PROS VIERNES
PROS VIERNES Q It was only on January 30, 1986 that this
receipt Exhibit 3 was issued by Mrs. Q You did not go to Malacaang on January
No more, your Honor. Gimenez? 30, 1986?

PJ GARCHITORENA A Yes, sir. A Yes, sir, I did not.

The witness is excused. Thank you very *PJ GARCHITORENA Q Do you know at whose instance this
much Mr. Monera. x x x.[41] Exhibit 3 was prepared?

37
A I asked for it, sir.
A Yes, your Honor. A Because I know her signature, your Honor.
Q You asked for it on January 31, 1986 I have been receiving letters from her also
when you made the last delivery? PJ GARCHITORENA and when she requests for something from
me. Her writing is familiar to me.
A Yes, sir. Proceed.
*Q So, when the Presiding Justice asked
Q Did you see this Exhibit 3 prepared in the PROS. VIERNES you as to how you knew that this was the
Office of Mrs. Gimenez? signature of Mrs. Gimenez and you
Q This receipt was prepared on January 31, answered that you saw Mrs. Gimenez
A Yes, sir. although it is dated January 30? signed it, you were not exactly truthful?

Q This receipt was typewritten in Malacaang A Yes, sir, because I was there on January A What I mean is, I did not see her sign
stationery. Did you see who typed this 31st. because she went to her room and when
receipt? she came out, she gave me that receipt,
Q In what particular place did Mrs. Gimenez your Honor.
A No, sir. What happened is that, she went sign this Exhibit 3?
to her room and when she came out she PJ GARCHITORENA
gave me that receipt. A In her office at Aguado, sir.
That is why you have to wait for the question
*PJ GARCHITORENA Q Did you actually see Mrs. Gimenez to be finished and listen to it carefully.
signing this receipt Exhibit 3? Because when I asked you, you said you
*Q What you are saying is, you do not know saw her signed it. Be careful Mr. Tabuena.
who typed that receipt? A No, sir, I did not. She was inside her room.
WITNESS
WITNESS Q So, she was in her room and when she
came out of the room, she handed this Yes, your Honor.
A Yes, your Honor. receipt to you already typed and signed?
PJ GARCHITORENA
*Q Are you making an assumption that she A Yes, sir.
typed that receipt? Continue.
*AJ HERMOSISIMA
A Yes, your Honor, because she knows how PROS VIERNES
to type. *Q So, how did you know this was the
signature of Mrs. Gimenez? Q Was there another person inside the office
*Q Your assumption is that she typed it of Mrs. Gimenez when she gave you this
herself? WITNESS receipt Exhibit 3?
38
A Nobody, sir.
Q I noticed in this receipt that the last
delivery of the sum of P55 million was made
on January 30. Do we understand from you
that this date January 30 is erroneous?
A Yes, sir, that January 30 is erroneous. I
noticed it only afterwards. This should be
January 31st, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY. ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ HERMOSISIMA
*Q Why did you not ask for a receipt on the
first and second deliveries?
A Because I know that the delivery was not
complete yet, your Honor.
*PJ GARCHITORENA
*Q So you know that the total amount to be
delivered was P55 million?
A Yes, your Honor.
PJ GARCHITORENA
Response by Mr. Peralta to the testimony of
Mr. Tabuena.
ATTY. ESTEBAL
We are adopting the testimony of Mr.
Tabuena and we will also present the
accused, your Honor.
*AJ DEL ROSARIO
*Q From whom did you receive the
Presidents memorandum marked Exhibit 1?
Or more precisely, who handed you this
memorandum?
A Mrs. Fe Roa Gimenez, your Honor.
*Q Did you ask Mrs. Fe Gimenez for what
purpose the money was being asked?
A The money was in payment for the debt of
the MIA Authority to PNCC, your Honor.
*Q If it was for the payment of such
obligation why was there no voucher
prepared to cover such payment? In other
words, why was the delivery of the money
not covered by any voucher?Calrky
A The instruction to me was to give it to the
Office of the President, your Honor.
*PJ GARCHITORENA
*Q Be that as it may, why was there no
voucher to cover this particular
disbursement?
A I was just told to bring it to the Office of the
President, your Honor.
*AJ DEL ROSARIO
*Q Was that normal procedure for you to pay
in cash to the Office of the President for
obligations of the MIAA in payment of its
obligation to another entity?
WITNESS
A No, your Honor, I was just following the
Order to me of the President.
*PJ GARCHITORENA
*Q So the Order was out of the ordinary?
A Yes, your Honor.
*AJ DEL ROSARIO
*Q Did you file any written protest with the
manner with which such payment was being
ordered?
39
A No, your Honor.
*Q Why not?
A Because with that instruction of the
President to me, I followed, your Honor.
*Q Before receiving this memorandum
Exhibit 1, did the former President Marcos
discuss this matter with you?
A Yes, your Honor.
*Q When was that?
A He called me up earlier, a week before
that, that he wants to me pay what I owe the
PNCC directly to his office in cash, your
Honor.
*PJ GARCHITORENA
*Q By I OWE, you mean the MIAA?
WITNESS
A Yes, your Honor.
*AJ DEL ROSARIO
*Q And what did you say in this discussion
you had with him?
A I just said, Yes, sir, I will do it/
*Q Were you the one who asked for a
memorandum to be signed by him?
A No, your Honor.
*Q After receiving that verbal instruction for
you to pay MIAAs obligation with PNCC, did
you not on your own accord already prepare
the necessary papers and documents for the
payment of that obligation?
A He told me verbally in the telephone that
the Order for the payment of that obligation
is forthcoming, your Honor. I will receive it.
*Q Is this the first time you received such a
memorandum from the President?
A Yes, your Honor.
*Q And was that the last time also that you
received such a memorandum?
A Yes, your Honor.
*Q Did you not inquire, if not from the
President, at least from Mrs. Gimenez why
this procedure has to be followed instead of
the regular procedure?
A: No, sir.
*AJ DEL ROSARIO
*Q Why did you not ask?
A I was just ordered to do this thing, your
Honor.
*AJ HERMOSISIMA
*Q You said there was an I OWE YOU?
A Yes, your Honor.
*Q Where is that I OWE YOU now?
A All I know is that we owe PNCC the
amount of P99.1 million, your Honor. MIAA
owes PNCC that amount.
*Q Was this payment covered by receipt
from the PNCC?
A It was not covered, your Honor.
*Q So the obligation of MIAA to PNCC was
not, for the record, cancelled by virtue of that
payment?
A Based on the order to me by the former
President Marcos ordering me to pay that
amount to his office and then the mechanics
will come after, your Honor.
*Q Is the PNCC a private corporation or
government entity?
A I think it is partly government, your Honor.
*PJ GARCHITORENA
*Q That is the former CDCP?
A Yes, your Honor.
40
*AJ HERMOSISIMA
*Q Why were you not made to pay directly to
the PNCC considering that you are the
Manager of MIA at that time and the PNCC
is a separate corporation, not an adjunct of
Malacaang?
WITNESS
A I was just basing it from the Order of
Malacaang to pay PNCC through the Office
of the President, your Honor.
*Q Do you know the President or Chairman
of the Board of PNCC?
A Yes, your Honor.
*Q How was the obligation of MIAA to PNCC
incurred. Was it through the President or
Chairman of the Board?
A PNCC was the one that constructed the
MIA, your Honor.
*Q Was the obligation incurred through the
President or Chairman of the Board or
President of the PNCC? In other words, who
signed the contract between PNCC and
MIAA?
A Actually, we inherited this obligation, your
Honor. The one who signed for this was the
former Director of BAT which is General
Singzon. Then when the MIA Authority was
formed, all the obligations of BAT were
transferred to MIAA. So the accountabilities
of BAT were transferred to MIAA and we are
the ones that are going to pay, your Honor.
*Q Why did you agree to pay to Malacaang
when your obligation was with the PNCC?
A I was ordered by the President to do that,
your Honor.
*Q You agreed to the order of the President
notwithstanding the fact that this was not the
regular course or Malacaang was not the
creditor?
A I saw nothing wrong with that because that
is coming from the President, your Honor.
*Q The amount was not a joke, amounting to
P55 million, and you agreed to deliver
money in this amount through a mere receipt
from the private secretary?
A I was ordered by the President, your
Honor.
*PJ GARCHITORENA
*Q There is no question and it can be a
matter of judicial knowledge that you have
been with the MIA for sometime?
A Yes, your Honor.
*Q Prior to 1986?
A Yes, your Honor.
*Q Can you tell us when you became the
Manager of MIA?
A I became Manager of MIA way back, late
1968, your Honor.
*Q Long before the MIA was constituted as
an independent authority?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And by 1986, you have been running the
MIA for 18 years?
WITNESS
A Yes, your Honor.
*Q And prior to your joining the MIA, did you
ever work for the government?
A No, your Honor.
*Q So, is it correct for us to say that your
joining the MIA in 1968 as its Manager was
your first employment with the government?
A Yes, your Honor.
*Q While you were Manager of MIA, did you
have other subsequent concurrent positions
in the government also?
41
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.
42

*PJ GARCHITORENA
*Q Did you not think that at least out of
prudence, you should have asked the COA
for some guidance on this matter so that you
will do it properly?
WITNESS
A What I was going to do is, after those
things I was going to tell that delivery
ordered by the President to the COA, your
Honor.
*Q That is true, but what happened here is
that you and Mr. Dabao or you and Mr.
Peralta signed requests for issuance of
Managers checks and you were
accommodated by the PNB Office at Nichols
without any internal documentation to justify
your request for Managers checks?
A Yes, your Honor.
*Q Of course we had no intimation at that
time that Mr. Marcos will win the elections
but even then, the Daily Express, which was
considered to be a newspaper friendly to the
Marcoses at that time, would occasionally
come with so-called expose, is that not so?
A Yes, your Honor.
*Q And worst, you had the so-called
mosquito press that would always come out
with the real or imagined scandal in the
government and place it in the headline, do
you 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.
43

PJ GARCHITORENA
Thank you very much, Mr. Tabuena. You are
excused. x x x.[42]
(PERALTA)
(He testified on direct examination that he
co-signed with Tabuena a memorandum
request for the issuance of the Managers
Check for P5 Million upon order of Tabuena
and that he [Peralta] was aware that MIAA
had an existing obligation with PNCC in the
amount of around P27 Million. He affirmed
having accompanied Tabuena at the PNB
Villamor Branch to withdraw the P5 Million,
but denied having misappropriated for his
own benefit said amount or any portion
thereof.)
CROSS-EXAMINATION BY PROS
VIERNES
Q Will you please tell the Honorable Court
why was it necessary for you to co-sign with
Mr. Tabuena the request for issuance of
Managers check in the amount of P5
million?
A At that time I was the Acting Financial
Services Manager of MIAA, sir, and all
withdrawals of funds should have my
signature because I was one of the
signatories at that time.
Q As Acting Financial Services Manager of
MIAA, you always co-sign with Mr. Tabuena
in similar requests for the issuance of
Managers checks by the PNB?
A That is the only occasion I signed, sir.
Q Did you say you were ordered by Mr.
Tabuena to sign the request?
A Yes, sir, and I think the order is part of the
exhibits. And based on that order, I co-
signed in the request for the issuance of
Managers check in favor of Mr. Luis
Tabuena.
PROS VIERNES
Q Was there a separate written order for you
to co-sign with Mr. Tabuena?
WITNESS
A Yes, sir, an order was given to me by Mr.
Tabuena.
*PJ GARCHITORENA
Was that marked in evidence?
WITNESS
Yes, your Honor.
*PJ GARCHITORENA
What exhibit?
WITNESS
I have here a copy, your Honor. This was the
order and it was marked as exhibit N.
PROS VIERNES
It was marked as Exhibit M, your Honor.
Q How did you know there was an existing
liability of MIAA in favor of PNCC at that
time?
A Because prior to this memorandum of Mr.
Tabuena, we prepared the financial
statement of MIAA as of December 31, 1985
and it came to my attention that there was
an existing liability of around
P27,999,000.00, your Honor.
Q When was that Financial Statement
prepared?
A I prepared it around January 22 or 24,
something like that, of 1986, sir.
Q Is it your usual practice to prepare the
Financial Statement after the end of the year
within three (3) weeks after the end of the
year?
A Yes, sir, it was a normal procedure for the
MIAA to prepare the Financial Statement on
or before the 4th Friday of the month
44
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 oclock in the
afternoon?
A I started counting it I think at around 4:30,
sir. It was after office hours. But then I was
there at around 4:00 oclock and we started
counting at around 4:30 p.m. because they
45
have to place it in a room, which is the office
of the Manager at that time.
Q And Mr. Tabuena left for Malacaang after
5:00 oclock in the afternoon of that date?
A Yes, sir. After we have counted the money,
it was placed in the peerless boxes and Mr.
Tabuena left for Malacaang.
PROS VIERNES
Q And you yourself, returned to your office at
MIA?
WITNESS
A Yes, sir.
Q Until what time do you hold office at the
MIA?
A Usually I 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 oclock
in the afternoon, you still went back to your
office at MIA?
A Yes, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY. ESTEBAL
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ DEL ROSARIO
*Q Did you not consider it as odd that your
obligation with the PNCC had to be paid in
cash?
WITNESS
A Based on the order of President Marcos
that we should pay in cash, it was not based
on the normal procedure, your Honor.
*Q And, as Acting Financial Services
Manager, you were aware that all
disbursements should be covered by
vouchers?
A Yes, your Honor, the payments should be
covered by vouchers. But then, inasmuch as
what we did was to prepare a request to the
PNB, then this can be covered by Journal
Voucher also.
*Q Was such payment of P5 million covered
by a Journal Voucher?
A Yes, your Honor.
*Q Did you present that Journal Voucher
here in Court?
A We have a copy, your Honor.
*Q Do you have a copy or an excerpt of that
Journal Voucher presented in Court to show
that payment?
A We have a copy of the Journal Voucher,
your Honor.
*Q Was this payment of P5 million ever
recorded in a cashbook or other accounting
books of MIAA?
A The payment of P5 million was recorded in
a Journal Voucher, your Honor.
*PJ GARCHITORENA
*Q In other words, the recording was made
directly to the Journal?
WITNESS
A Yes, your Honor.
*Q There are no other separate documents
as part of the application for Managers
Check?
A Yes, your Honor, there was none.
*AJ DEL ROSARIO
46

*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
Managers check, no disbursement voucher
was prepared, your Honor.
*AJ DEL ROSARIO
*Q Since the payment was made on January
31, 1986, and that was very close to the
election held in that year, did you not
entertain any doubt that the amounts were
being used for some other purpose?
ATTY. ESTEBAL
With due respect to the Honorable Justice,
we are objecting to the question on the
ground that it is improper.
*AJ DEL ROSARIO
I will withdraw the question.
*PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination,
and secondly, I dont think there was any
basis, your Honor.
*PJ GARCHITORENA
Considering the withdrawal of the question,
just make the objection on record.
*AJ HERMOSISIMA
*Q As a Certified Public Accountant and
Financial Manager of the MIAA, did you not
consider it proper that a check be issued
only after it is covered by a disbursement
voucher duly approved by the proper
authorities?
A Your Honor, what we did was to send a
request for a Managers check to the PNB
based on the request of Mr. Tabuena and
the order of Mr. Tabuena was based on the
Order of President Marcos.
*PJ GARCHITORENA
*Q In your capacity as Financial Services
Manager of the MIAA, did you not think it
proper to have this transaction covered by a
disbursement voucher?
WITNESS
A Based on my experience, payments out of
cash can be made through cash vouchers,
or even though Journal Vouchers, or even
through credit memo, your Honor.
*AJ HERMOSISIMA
*Q This was an obligation of the MIAA to the
PNCC. Why did you allow a disbursement
by means of check in favor of Mr. Luis
Tabuena, your own manager?
A We based the payment on the order of Mr.
Tabuena because that was the order of
President Marcos to pay PNCC through the
Office of the President and it should be paid
in cash, your Honor.
*Q You are supposed to pay only on legal
orders. Did you consider that legal?
ATTY. ESTEBAL
With due respect to the Honorable Justice,
the question calls for a conclusion of the
witness.
47
*PJ GARCHITORENA
Considering that the witness is an expert,
witness may answer.
WITNESS
A The order of president Marcos was legal at
that time because the order was to pay
PNCC the amount of P5 million through the
Office of the President and it should be paid
in cash, your Honor. And at that time, I know
for a fact also that there was an existing P.D.
wherein the President of the Republic of the
Philippines can transfer funds from one
office to another and the PNCC is a quasi
government entity at that time.
*AJ HERMOSISIMA
*Q Are you saying that this transaction was
made on the basis of that P.D. which you
referred to?
A I am not aware of the motive of the
President, but then since he is the President
of the Philippines, his order was to pay the
PNCC through the Office of the President,
your Honor.
*Q As Financial Manager, why did you allow
a payment in cash when ordinarily payment
of an obligation of MIAA is supposed to be
paid in check?
A I caused the payment through the name of
Mr. Tabuena because that was the order of
Mr. Tabuena and also he received an order
coming from the President of the Philippines
at that time, your Honor.
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers
merely entries in the Journals to correct
certain statements of accounts 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?
48

A Yes, your Honor, because at that time we
have also a recorded liability of P27 million.
*Q We are not talking of whether or not there
was a liability. What we are saying is, is the
order of the General Manager by itself
adequate with no other supporting papers, to
justify the movement of funds?
A Yes, your Honor. The order of Mr. Luis
Tabuena was based on our existing liability
of P27,931,000.00, inasmuch as we have
that liability and I was shown the order of
President Marcos to pay P5 million through
the Office of the President, I considered the
order of Mr. Luis Tabuena, the order of
President Marcos and also the existing
liability of P27 million sufficient to pay the
amount of P5 million. Inasmuch as there is
also an escalation clause of P99.1 million,
the payment of P5 million is fully covered by
those existing documents.
*PJ GARCHITORENA
You keep flooding us with details we are not
asking for. We are not asking you whether or
not there was valid obligation. We are not
asking you about the escalation clause. We
are asking you whether or not this particular
order of Mr. Tabuena is an adequate basis to
justify the movement of funds?
WITNESS
When we pay, your Honor, we always look
for the necessary documents and at that
time I know for a fact that there was this
existing liability.
*PJ GARCHITORENA
When we ask questions and when we
answer them, we must listen to the question
being asked and not to whatever you wanted
to say. I know you are trying to protect
yourself. We are aware of your statement
that there are all of these memoranda.
*Q By your disbursement of such amount,
you are saying that the order of Mr. Tabuena
by itself is adequate?
WITNESS
A As far as I am concerned, your Honor,
inasmuch as we have a liability and I was
shown the Order of President Marcos to pay
PNCC through his office, I feel that the order
of the General Manager, the order of
President Marcos, and also the
memorandum of Minister Ongpin are
sufficient to cause the payment of P5 million.
*PJ GARCHITORENA
*Q This Presidential Decree which
authorizes the President to transfer funds
from one department to another, is this not
the one that refers to the realignment of
funds insofar as the Appropriation Act is
concerned?
WITNESS
A Because at that time, your Honor, I have
knowledge that the President is authorized
through a Presidential Decree to transfer
government funds from one office to
another.
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are
payments of debts of the MIAA covered by
the Appropriation Act?
A I think the liability was duly recorded and
appropriations to pay the amount is.....
(interrupted)
*PJ GARCHITORENA
*Q Tell me honestly, is your answer
responsive to the question or are you just
throwing words at us in the hope that we will
forget what the question is?
A No, your Honor.
*Q Are you telling us that the debts incurred
by MIAA 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.
49

*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
50

Thank you very much Mr. Peralta, you are
excused. x x x.[43]
This Court has acknowledged the right of a
trial judge to question witnesses with a view
to satisfying his mind upon any material
point which presents itself during the trial of
a case over which he presides.[44] But not
only should his examination be limited to
asking clarificatory questions,[45] the right
should be sparingly and judiciously used; for
the rule is that the court should stay out of it
as much as possible, neither interfering nor
intervening in the conduct of the trial.[46]
Here, these limitations were not observed.
Hardly in fact can one avoid the impression
that the Sandiganbayan had allied itself with,
or to be more precise, had taken the cudgels
for the prosecution in proving the case
against Tabuena and Peralta when the
Justices cross-examined the witnesses, their
cross-examinations supplementing those
made by Prosecutor Viernes and far
exceeding the latters questions in length.
The cold neutrality of an impartial judge
requirement of due process was certainly
denied Tabuena and Peralta when the court,
with its overzealousness, assumed the dual
role of magistrate and advocate. In this
connection, the observation made in the
Dissenting Opinion to the effect that the
majority of this Court was unduly disturbed
with the number of court questions alone, is
quite inaccurate. A substantial portion of the
TSN was incorporated in the majority
opinion not to focus on numbers alone, but
more importantly to show that the court
questions were in the interest of the
prosecution and which thus depart from that
common standard of fairness and
impartiality. In fact, it is very difficult to be,
upon review of the records, confronted with
numbers without necessarily realizing the
partiality of the Court. In US v. De Sisto (2
Cir., 1961, 289 F 2d 833), for example, a
new trial was required because the trial
judge, as in this case, indulged in extensive
questioning of defendant and his witnesses,
and the reviewing court also had to amplify
on numbers to bolster this. It was pointed
out in the De Sisto case that the judge asked
3,115 questions of all witnesses, the
prosecutor asked but 1,381, defense
counsel 3,330. The judges questions to the
defendant De Sisto totalled 306, the
prosecutors 347, and the defense counsels,
201. After referring to these figures, the court
stated:
. . . It is indeed an impressive proportion, but
no such mathematical computation is of
itself determinative. However, taking all this
in conjunction with the long and vigorous
examination of the defendant himself by the
judge, and the repeated belittling by the
judge of defendants efforts to establish the
time that Fine left the pier, we fear that in its
zeal for arriving at the facts the court here
conveyed to the jury too strong an
impression of the courts belief in the
defendants probable guilt to permit the jury
freely to perform its own function of
independent determination of the facts. x x x
The majority believes that the interference
by the Sandiganbayan Justices was just too
excessive that it cannot be justified under
the norm applied to a jury trial, or even
under the standard employed in a 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
Presidents 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
51
I will withdraw the question.
PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination,
and secondly, I dont think there was any
basis, Your Honor.
PJ GARCHITORENA
Considering the withdrawal of the question,
just make the objection on record.
Nothing from the preceding questions of
counsels or of the court would serve as
basis for this question. How then, can this be
considered even relevant? What is the
connection between the payment made to
the Presidents office and the then
forthcoming presidential snap election? In
another instance, consider the following
questions of Presiding Justice Garchitorena:
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers
merely entries in the Journals to correct
certain statements of accounts earlier made
in the same journal?
xxx
*Q In other words, really what you are telling
us is that, a Journal Voucher is to explain a
transaction was otherwise not recorded.
xxx
*Q Therefore, when you said that a Journal
Voucher here is proper, you are saying it is
proper only because of the exceptional
nature of the transactions?
xxx
*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
52
are asking you whether or not this particular
order of Mr. Tabuena is an adequate basis to
justify the movement of funds?
*PJ GARCHITORENA
When we ask questions and when we
answer them, we must listen to the question
being asked and not to whatever you wanted
to say. I know you are trying to protect
yourself. We are aware of your statement
that there are all of these memoranda.
*Q By your disbursement of such amount,
you are saying that the order of Mr. Tabuena
by itself is adequate?
*PJ GARCHITORENA
*Q This Presidential Decree which
authorizes the President to transfer funds
from one department to another, is this not
the one that refers to the realignment of
funds insofar as the Appropriation Act is
concerned?
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are
payments of debts of the MIAA covered by
the Appropriation Act?
*PJ GARCHITORENA
*Q Tell me honestly, is your answer
responsive to the question or are you just
throwing words at us in the hope that we will
forget what the question is?
xxx
*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
53
on cross-examination questions? Thus, the
Dissenting Opinions focus on the distinction
between the two kinds of trial to justify the
Sandiganbayans active participation in the
examination of petitioners Tabuena and
Peralta and witness Monera, with due
respect, appears insignificant to this case.
Let it, therefore, be emphasized anew that:
A trial judge should not participate in the
examination of witnesses as to create the
impression that he is allied with the
prosecution.[48]
We doubt not that the sole motive of the
learned judge was to ascertain the truth of
the transaction, but it is never proper for a
judge to discharge the duties of a
prosecuting attorney. However anxious a
judge may be for the enforcement of the law,
he should always remember that he is as
much judge in behalf of the 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
54
reasons, it is the bounden duty of all to strive
for the preservation of the peoples faith in
our courts.[55]
Time and again this Court has declared that
due process requires no less than the cold
neutrality of an impartial judge. Bolstering
this requirement, we have added that the
judge must not only be impartial but must
also appear to be impartial, to give added
assurance to the parties that his decision will
be just. The parties are entitled to no less
than this, as a minimum guaranty of due
process.[56]
We are well aware of the fear entertained by
some that this decision may set a dangerous
precedent in that those guilty of enriching
themselves at the expense of the public
would be able to escape criminal liability by
the mere expedient of invoking good faith. It
must never be forgotten, however, that we
render justice on a case to case basis,
always in consideration of the evidence that
is presented. Thus, where the 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 petitioners
acquittal must also be present in subsequent
cases.
Furthermore, as between a mere PEOPLE OF THE PHILIPPINES,
apprehension of a dangerous precedent and Plaintiff-Appellee,
an actual violation of constitutionally
enshrined rights, it is definitely the latter that - versus -
merits our immediate attention. For the most
dangerous precedent arises when we allow HENRY ARPON y JUNTILLA,
ourselves to be carried away by such fears Accused-Appellant.
so that it becomes lawful to sacrifice the
rights of an accused to calm the fearful. In G.R. No. 183563
our eagerness to bring to justice the
malefactors of the Marcos regime, we must Present:
not succumb to the temptation to commit the
greatest injustice of visiting the sins of the CORONA, C.J.,
wrongdoers upon an innocent. Chairperson,
LEONARDO-DE CASTRO,
WHEREFORE, in view of the foregoing, BERSAMIN,
herein petitioners Luis A. Tabuena and DEL CASTILLO, and
Adolfo M. Peralta are hereby ACQUITTED of VILLARAMA, JR., JJ.
the crime of malversation as defined and
penalized under Article 217 of the Revised Promulgated:
Penal Code. The Sandiganbayan Decision
of October 12, 1990 and the Resolution December 14, 2011
dated December 20, 1991 are REVERSED x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
and SET ASIDE. - - - - - - - - - - - - - - - - - - -x
SO ORDERED.
DECISION
===
ARTICLE 12 LEONARDO-DE CASTRO, J.:
Republic of the Philippines
Supreme Court Assailed before Us is the Decision[1] of the
Manila Court of Appeals dated February 8, 2008 in
CA-G.R. CR.-H.C. No. 00560, which
FIRST DIVISION affirmed with modification the Decision[2]
dated September 9, 2002 of the Regional
55
Trial Court (RTC) of Tacloban City, Branch 7,
in Criminal Case Nos. 2001-01-46 to
2001-01-53, finding the accused-appellant
Henry Arpon y Juntilla guilty beyond
reasonable doubt of one (1) count of
statutory rape and seven (7) counts of rape
against the private complainant AAA.[3]
On December 29, 1999, the accused-
appellant was charged[4] with eight (8)
counts of rape in separate informations, the
accusatory portions of which state:
Criminal Case No. 2000-01-46
That sometime in the year 1995 in the
municipality of [XXX], Province of Leyte,
Philippines, and within the jurisdiction of this
Honorable Court, the said accused, who is
the uncle of [AAA], the offended party,
actuated by lust, did, then and there, willfully,
unlawfully and feloniously, succeed in having
carnal knowledge of the said [AAA], who
was then only eight (8) years old, without her
consent and against her will.
Contrary to law with the aggravating
circumstance that the victim is under
eighteen (18) years of age and the offender
is a relative by consanguinity within the third
civil degree.[5]
Criminal Case No. 2000-01-47
That sometime in the month of July, 1999 in
the municipality of [XXX], Province of Leyte,
Philippines, and within the jurisdiction of this
Honorable Court, the said accused, who is
the uncle of [AAA], the twelve-year-old
offended party, actuated by lust, did, then
and there, willfully, unlawfully and
feloniously, and with the use of force and
violence succeed in having carnal
knowledge of the said [AAA], without her
consent and against her will.
Contrary to law with the aggravating
circumstance that the victim is under
eighteen (18) years of age and the offender
is a relative by consanguinity within the third
civil degree.[6]
Criminal Case No. 2000-01-48
That sometime in the month July 1999 in the
municipality of [XXX], Province of Leyte,
Philippines, and within the jurisdiction of this
Honorable Court, the said accused, who is
the uncle of [AAA], the twelve-year-old
offended party, actuated by lust, did, then
and there, willfully, unlawfully and
feloniously, and with the use of force and
violence succeed in having carnal
knowledge of the said [AAA], without her
consent and against her will.
Contrary to law with the aggravating
circumstance that the victim is under
eighteen (18) years of age and the offender
is a relative by consanguinity within the third
civil degree.[7]
Criminal Case No. 2000-01-49
That sometime in the month of July, 1999 in
the municipality of [XXX], Province of Leyte,
Philippines, and within the jurisdiction of this
Honorable Court, the said accused, who is
the uncle of [AAA], the twelve-year-old
offended party, actuated by lust, did, then
and there, willfully, unlawfully and
feloniously, and with the use of force and
violence succeed in having carnal
knowledge of the said [AAA], without her
consent and against her will.
Contrary to law with the aggravating
circumstance that the victim is under
eighteen (18) years of age and the offender
is a relative by consanguinity within the third
civil degree.[8]
Criminal Case No. 2000-01-50
That sometime in the month of July, 1999 in
the municipality of [XXX], Province of Leyte,
Philippines, and within the jurisdiction of this
Honorable Court, the said accused, who is
the uncle of [AAA], the twelve-year-old
offended party, actuated by lust, did, then
and there, willfully, unlawfully and
feloniously, and with the use of force and
violence succeed in having carnal
knowledge of the said [AAA], without her
consent and against her will.
Contrary to law with the aggravating
circumstance that the victim is under
eighteen (18) years of age and the offender
is a relative by consanguinity within the third
civil degree.[9]
56

Criminal Case No. 2000-01-51
That sometime in the month of July, 1999 in
the municipality of [XXX], Province of Leyte,
Philippines, and within the jurisdiction of this
Honorable Court, the said accused, who is
the uncle of [AAA], the twelve-year-old
offended party, actuated by lust, did, then
and there, willfully, unlawfully and
feloniously, and with the use of force and
violence succeed in having carnal
knowledge of the said [AAA], without her
consent and against her will.
Contrary to law with the aggravating
circumstance that the victim is under
eighteen (18) years of age and the offender
is a relative by consanguinity within the third
civil degree.[10]
Criminal Case No. 2000-01-52
That sometime in the month of August, 1999
in the municipality of [XXX], Province of
Leyte, Philippines, and within the jurisdiction
of this Honorable Court, the said accused,
who is the uncle of [AAA], the twelve-year-
old offended party, actuated by lust, did, then
and there, willfully, unlawfully and
feloniously, and with the use of force and
violence succeed in having carnal
knowledge of the said [AAA], without her
consent and against her will.
Contrary to law with the aggravating
circumstance that the victim is under
eighteen (18) years of age and the offender
is a relative by consanguinity within the third
civil degree.[11]
Criminal Case No. 2000-01-47
That sometime in the month of August, 1999
in the municipality of [XXX], Province of
Leyte, Philippines, and within the jurisdiction
of this Honorable Court, the said accused,
who is the uncle of [AAA], the twelve-year-
old offended party, actuated by lust, did, then
and there, willfully, unlawfully and
feloniously, and with the use of force and
violence succeed in having carnal
knowledge of the said [AAA], without her
consent and against her will.
Contrary to law with the aggravating
circumstance that the victim is under
eighteen (18) years of age and the offender
is a relative by consanguinity within the third
civil degree.[12] (Emphases ours.)
During the arraignment of the accused-
appellant on November 28, 2000, he entered
a plea of not guilty.[13] On March 13, 2001,
the pre-trial conference of the cases was
conducted and the parties stipulated on the
identity of the accused-appellant in all the
cases, the minority of the victim and the fact
that the accused appellant is the uncle of the
victim.[14]
The pre-trial order containing the foregoing
stipulations was signed by the accused and
his counsel. The cases were then heard on
consolidated trial.
The prosecution presented the lone
testimony of AAA to prove the charges
against the accused-appellant. AAA testified
that she was born on November 1, 1987.[15]
In one afternoon when she was only eight
years old, she stated that the accused-
appellant raped her inside their house. She
could not remember, though, the exact
month and date of the incident. The
accused-appellant stripped off her shorts,
panties and shirt and went on top of her. He
had his clothes on and only pulled down his
zipper. He then pulled out his organ, put it in
her vagina and did the pumping motion. AAA
felt pain but she did not know if his organ
penetrated her vagina. When he pulled out
his organ, she did not see any blood. She
did so only when she urinated.[16]
AAA also testified that the accused-appellant
raped her again in July 1999 for five times
on different nights. The accused-appellant
was then drinking alcohol with BBB, the
stepfather of AAA, in the house of AAAs
neighbor. He came to AAAs house, took off
her panty and went on top of her. She could
not see what he was wearing as it was
nighttime. He made her hold his penis then
he left. When asked again how the accused-
appellant raped her for five nights in July of
the said year, AAA narrated that he pulled
down her panty, went on top of her and
pumped. She felt pain as he put his penis
into her vagina. Every time she urinated,
57
thereafter, she felt pain. AAA said that she
recognized the accused-appellant as her
assailant since it was a moonlit night and
their window was only covered by cloth. He
entered through the kitchen as the door
therein was detached.[17]
AAA further related that the accused-
appellant raped her again twice in August
1999 at nighttime. He kissed her and then
he took off his shirt, went on top of her and
pumped. She felt pain in her vagina and in
her chest because he was heavy. She did
not know if his penis penetrated her vagina.
She related that the accused-appellant was
her uncle as he was the brother of her
mother. AAA said that she did not tell
anybody about the rapes because the
accused-appellant threatened to kill her
mother if she did. She only filed a complaint
when he proceeded to also rape her
younger sister, DDD.[18]
After the testimony of AAA, the prosecution
formally offered its documentary evidence,
consisting of: (1) Exhibit A - the Medico-
Legal Report,[19] which contained the
results of the medical examination
conducted on AAA by Dr. Rommel
Capungcol and Dr. Melissa Adel Gagala on
October 26, 1999; and (2) Exhibit B - the
Social Case Study Report[20] pertaining to
AAAs case, which was issued by the
Municipal Social Welfare and Development
Office of the Province of Leyte.
The Medico-Legal Report stated the
following findings:
P. E. Findings: Surg. Findings:
- (-) Physical injuries.
OB- NOTES:
- Patient came in with history of rape since 8
year old for so many times. last act was
March 1999.
O: Pelvic Exam:
Ext. Genetalia grossly normal.
Introitus: Old, healed incomplete laceration
at 3 & 9 oclock position
Speculum Exam: not done due to
resistance.
Internal Exam:
Vaginal smear for presence of spermatozoa:
= NEGATIVE[21]
Upon the other hand, the defense called the
accused-appellant to the witness stand to
deny the informations filed against him and
to refute the testimony of AAA. He testified
that when the first incident of rape allegedly
happened in 1995, he was only 13 years old
as he was born on February 23, 1982. In
1995, he worked in Sagkahan, Tacloban City
as a houseboy for a certain Gloria Salazar
and he stayed there up to 1996. He stated
that he was working in Tacloban City when
the alleged rapes happened in the
municipality of XXX. When he would go
home from Tacloban, he would stay at the
house of a certain Fred Antoni. He did not go
to the house of AAA as the latters parents
were his enemies. He said that he had a
quarrel with AAAs parents because he did
not work with them in the ricefields. He
further recounted that in July 1999, he was
also living in Tacloban City and worked there
as a dishwasher at a restaurant. He worked
there from 1998 up to September 1999. The
accused-appellant likewise stated that in
August 1999, he was still working at the
same restaurant in Tacloban City. While
working there, he did not go home to XXX as
he was busy with work. He denied that he
would have drinking sprees with AAAs
stepfather, BBB, because they were
enemies.[22]
On cross-examination, the accused-
appellant admitted that the mother of AAA
was his sister and they were close to each
other. He said that his parents were still alive
in 1995 up to October 1999 and the latter
then resided at Calaasan, Alangalang,
Leyte. He indicated that his parents house
was about two kilometers away from the
house of AAA. While he was working at the
restaurant in Tacloban City, he would visit his
parents once every month, mainly on
Sundays.[23]
The Judgment of the RTC
On September 9, 2002, the RTC of Tacloban
City, Branch 7, rendered a Decision
convicting the accused-appellant as follows:
58
WHEREFORE, premises considered,
pursuant to Art. 266-A and 266-B of the
Revised Penal Code as amended, and
further amended by R.A. 8353 (Rape Law of
1997) and R.A. 7659 (Death Penalty Law)
the Court found accused HENRY ARPON,
GUILTY beyond reasonable doubt of ONE
COUNT OF STATUTORY RAPE and
SEVEN COUNTS OF RAPE charged under
the informations and sentenced to suffer the
maximum penalty of DEATH, and to
indemnify the victim, [AAA] the amount of
Fifty Thousand (P50,000.00) Pesos for each
count of Rape and pay moral damages in
the amount of Fifty Thousand (P50,000.00)
Pesos and pay the cost.[24] (Emphases in
the original.)
The court a quo found more credible the
testimony of AAA. The fact that AAA was in
tears when she testified convinced the trial
court of the truthfulness of her rape charges
against the accused-appellant. If there were
inconsistencies in AAAs testimony, the trial
court deemed the same understandable
considering that AAA was pitted against a
learned opposing counsel. The delay in the
reporting of the rape incidents was not also
an indication that the charges were
fabricated. Moreover, the trial court ruled
that the findings of the medico-legal officer
confirmed that she was indeed raped. The
accused-appellants defense of alibi was
likewise disregarded by the trial court,
declaring that it was not physically
impossible for him to be present in XXX at
any time of the day after working hours while
he was working in Tacloban City. The trial
court stated that the accused-appellant was
positively identified by AAA as the person
who sexually abused her and she held no
grudge against him. The trial court imposed
the penalty of death as it found that AAA was
less than 18 years old at the time of the
commission of the rape incidents and the
accused-appellant was her uncle, a relative
by consanguinity within the third civil degree.
The trial court also appreciated against the
accused-appellant the aggravating
circumstances of abuse of confidence and
nighttime.
The accused-appellant filed a Motion for
Reconsideration[25] of the RTC Decision,
asserting that the trial court failed to
consider his minority as a privileged
mitigating circumstance. As stated in his
direct examination, the accused-appellant
claimed that he was born on February 23,
1982, such that he was only 13 and 17 years
old when the incidents of rape allegedly
occurred in 1995 and 1999, respectively. In
a Resolution[26] dated November 6, 2002,
the trial court denied the accused-appellants
motion, holding that the latter failed to
substantiate with clear and convincing
evidence his allegation of minority.
The cases were elevated to the Court on
automatic review and were docketed as
G.R. Nos. 165201-08.[27] The parties then
filed their respective briefs.[28] On February
7, 2006, we resolved[29] to transfer the
cases to the Court of Appeals pursuant to
our ruling in People v. Mateo.[30] The cases
were docketed in the appellate court as CA-
G.R. CR.-H.C. No. 00560.
The Decision of the Court of Appeals
On February 8, 2008, the Court of Appeals
promulgated its assailed decision, decreeing
thus:
WHEREFORE, the Decision dated
September 9, 2002 of the Regional Trial
Court, Branch 7, Tacloban City in Criminal
Case Nos. 2001-01-46 to 2001-01-53 is
AFFIRMED with modification awarding
exemplary damages to [AAA] in the amount
of Twenty[-]Five Thousand (P25,000.00)
Pesos for each count of rape and
clarification that the separate award of Fifty
Thousand (P50,000.00) Pesos as moral
damages likewise pertains to each count of
rape. The death penalty imposed is reduced
to reclusion perpetua in accord with Rep. Act
No. 9346.[31]
The Court of Appeals adjudged that the
inconsistencies pointed out by the accused-
appellant in the testimony of AAA were not
sufficient to discredit her. The appellate court
held that the exact age of AAA when the
incidents of rape occurred no longer
mattered, as she was still a minor at the
time. More significant was her
straightforward, categorical and candid
testimony that she was raped eight times by
59
the accused-appellant. The Court of Appeals
also agreed with the ruling of the RTC that
AAAs charges of rape conformed with the
physical evidence and the accused-
appellants uncorroborated defense of alibi
could not stand against the positive
identification made by AAA.
As regards the attendant circumstances, the
Court of Appeals ruled that the relationship
of the accused-appellant to AAA was both
alleged in the informations and admitted by
the accused-appellant. The appellate court,
however, differed in appreciating against the
accused-appellant the qualifying
circumstance of AAAs minority. The lone
testimony of AAA on the said circumstance
was held to be an insufficient proof therefor.
The aggravating circumstance of nighttime
was also ruled to be inapplicable as it was
not shown that the same was purposely
sought by the accused-appellant or that it
facilitated the commission of the crimes of
rape. In view of the presence of the
qualifying circumstance of relationship, the
Court of Appeals awarded exemplary
damages in favor of AAA.
The accused-appellant filed a Notice of
Appeal[32] of the above decision and the
same was given due course by the Court of
Appeals in a Resolution[33] dated May 27,
2008.
On November 17, 2008, the Court resolved
to accept the appeal and required the parties
to file their respective supplemental briefs, if
they so desire, within 30 days from notice.
[34] Thereafter, in a Manifestation and
Motion[35] filed on December 24, 2008, the
plaintiff-appellee, through the Office of the
Solicitor General, prayed that it be excused
from filing a supplemental brief. On February
3, 2009, the accused-appellant submitted a
Supplemental Brief.[36]
The Issues
In the accused-appellants brief, the following
issues were invoked:
I discounted as insignificant. He further insists
THE COURT A QUO GRAVELY ERRED IN
CONVICTING THE ACCUSED-APPELLANT
OF THE CRIMES CHARGED DESPITE
THE FAILURE OF THE PROSECUTION TO
PROVE HIS GUILT BEYOND
REASONABLE DOUBT.
II
THE COURT A QUO GRAVELY ERRED IN
GIVING WEIGHT AND CREDENCE TO
THE INCREDIBLE AND INCONSISTENT
TESTIMONY OF THE PRIVATE
COMPLAINANT.
III
THE COURT A QUO GRAVELY ERRED IN
IMPOSING THE SUPREME PENALTY OF
DEATH.[37]
The accused-appellant insists that it was
error on the part of the RTC to give weight to
the incredible testimony of AAA. He alleges
that AAA could not state with consistency the
exact date when she was first supposedly
raped, as well as her age at that time. The
accused-appellant also avers that AAA could
not remember the dates of the other
incidents of rape charged, all of which were
allegedly described in a uniform manner.
Contrary to the judgment of the Court of
Appeals, the accused-appellant posits that
the above inconsistencies cannot merely be
that the qualifying circumstances of AAAs
minority and her relationship to the accused-
appellant were not duly proven by the
prosecution. The accused-appellant, thus,
prays for a judgment of acquittal.
The Ruling of the Court
After a careful examination of the records of
this case, the Court resolves to deny the
appeal, but with a modification of the
penalties and the amount of indemnities
awarded.
To recall, the RTC and the Court of Appeals
found the accused-appellant guilty of one (1)
count of statutory rape and seven (7) counts
of qualified rape.
Under the information in Criminal Case No.
2000-01-46, the first incident of rape was
alleged to have occurred in 1995 when AAA
was only eight years old. However, the
60
accused-appellant points out that the
prosecution failed to substantiate the said
fact as AAAs testimony thereon was too
inconsistent and incredible to be worthy of
any belief. He explains that AAA initially
claimed that she was raped for the first time
when she was eight years old. Nonetheless,
during her testimony regarding the incidents
of rape that occurred in July 1999, she said
that the accused did the same thing that he
did to her when she was only seven years
old. On her redirect examination, AAA then
stated that she was first raped in 1998 when
she was eleven (11) years old.
Presently, Article 266-A of the Revised Penal
Code defines the crime of rape by sexual
intercourse as follows:
ART. 266-A. Rape, When and How
Committed. Rape is committed
1. By a man who shall have carnal
knowledge of a woman under any of the
following circumstances:
a. Through force, threat or intimidation;
b. When the offended party is deprived of
reason or is otherwise unconscious;
c. By means of fraudulent machination or
grave abuse of authority;
d. When the offended party is under twelve
(12) years of age or is demented, even
though none of the circumstances
mentioned above be present.
In particular, Article 266-A(1)(d) spells out
the definition of the crime of statutory rape,
the elements of which are: (1) that the
offender had carnal knowledge of a woman;
and (2) that such a woman is under twelve
(12) years of age or is demented.[38]
The above provision came into existence by
virtue of Republic Act No. 8353,[39] or the
Anti-Rape Law of 1997, which took effect on
October 22, 1997.[40] Prior to this date, the
crime of rape was penalized under Article
335 of the Revised Penal Code,[41] which
provides:
ART. 335. When and how rape is committed.
Rape is committed by having carnal
knowledge of a woman under any of the
following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or
otherwise unconscious; and
3. When the woman is under twelve years of
age or is demented.
In People v. Macafe,[42] we explained the
concept of statutory rape under Article 335
of the Revised Penal Code in this wise:
Rape under paragraph 3 of [Article 335] is
termed statutory rape as it departs from the
usual modes of committing rape. What the
law punishes in statutory rape is carnal
knowledge of a woman below twelve years
old. Hence, force and intimidation are
immaterial; the only subject of inquiry is the
age of the woman and whether carnal
knowledge took place. The law presumes
that the victim does not and cannot have a
will of her own on account of her tender
years; the child's consent is immaterial
because of her presumed incapacity to
discern evil from good.[43] (Emphasis ours.)
Manifestly, the elements of statutory rape in
the above-mentioned provisions of law are
essentially the same. Thus, whether the first
incident of rape charged in this case did
occur in 1995, i.e., before the amendment of
Article 335 of the Revised Penal Code, or in
1998, after the effectivity of the Anti-Rape
Law of 1997, the prosecution has the burden
to establish the fact of carnal knowledge and
the age of AAA at the time of the
commission of the rape.
Contrary to the posturing of the accused-
appellant, the date of the commission of the
rape is not an essential element of the crime
of rape, for the gravamen of the offense is
carnal knowledge of a woman.[44]
Inconsistencies and discrepancies in details
which are irrelevant to the elements of the
crime are not grounds for acquittal.[45]
As regards the first incident of rape, the RTC
credited with veracity the substance of AAAs
61
testimony. On this matter, we reiterate our
ruling in People v. Condes[46] that:
Time and again, the Court has held that
when the decision hinges on the credibility of
witnesses and their respective testimonies,
the trial court's observations and conclusions
deserve great respect and are often
accorded finality. The trial judge has the
advantage of observing the witness'
deportment and manner of testifying. Her
"furtive glance, blush of conscious shame,
hesitation, flippant or sneering tone,
calmness, sigh, or the scant or full
realization of an oath" are all useful aids for
an accurate determination of a witness'
honesty and sincerity. The trial judge,
therefore, can better determine if witnesses
are telling the truth, being in the ideal
position to weigh conflicting testimonies.
Unless certain facts of substance and value
were overlooked which, if considered, might
affect the result of the case, its assessment
must be respected for it had the opportunity
to observe the conduct and demeanor of the
witnesses while testifying and detect if they
were lying. The rule finds an even more
stringent application where said findings are
sustained by the [Court of Appeals].[47]
In the instant case, we have thoroughly
scrutinized the testimony of AAA and we
found no cogent reason to disturb the finding
of the RTC that the accused-appellant
indeed committed the first incident of rape
charged. AAA positively identified the
accused-appellant as the perpetrator of the
dastardly crimes. With tears in her eyes, she
clearly and straightforwardly narrated the
said incident of rape as follows:
[PROSECUTOR EDGAR SABARRE]
Q: Do you recall of any unusual incident that
happened when you were still 8 years old?
[AAA]
A: There was but I cannot anymore
remember the exact month and date.
Q: Just tell what happened to you when you
were still 8 years old?
A: I was raped by Tiyo Henry.
Q: How did he rape you?
A: He stripped me of my panty, shorts and
shirts.
Q: Do you remember what place did he rape
you?
A: Yes, sir in our house.
Q: Who were the persons present then at
that time?
A: My younger brother and I.
Q: About your mother and step father where
were they?
A: In the ricefield.
PROS. SABARRE:
May we make it of record that the witness is
crying.
COURT:
Have it on record.
PROS. SABARRE:
Q: Do you still recall was it in the morning, in
the afternoon or evening?
A: In the afternoon.
xxxx
Q: After your clothes and [panty] were taken
off by accused what did he do to you next if
any?
A: He went on top of me.
Q: Was he still with his clothes on or already
naked?
A: He has still clothes on, he did not take off
his pants, he only pulled down the zipper.
Q: And when he pulled down the zipper and
went on top of you what did he do next if
any?
A: He was pumping on me.
Q: Did he pull out his organ?
A: Yes, sir.
Q: And where did he place his organ?
A: In my vagina.
62
Q: When he kept on pumping what did you Q: You have companions why were you Q: You said you were raped on that July
feel? raped? evening for five nights how did he rape you?
A: Pain.[48] A: Because they were sleeping. A: (witness did not answer)

Q: How did he rape you on that July night for PROS. SABARRE:
The above testimony of AAA was also five times, will you please narrate to the
corroborated by the Medico-Legal Report of court? Make it of record that the witness is crying
Dr. Capungcol and Dr. Gagala, who found A: Because they have been drinking, he again.
old, healed, incomplete hymenal lacerations came to our house, pulled out my panty and
on the private part of AAA. [W]hen the went on top of me. Q: Why are you crying?
testimony of a rape victim is consistent with A: I am angry and hurt.
the medical findings, there is sufficient basis Q: With whom was he drinking?
to conclude that there has been carnal A: With my step father. PROS. SABARRE:
knowledge.[49]
Q: Where did they drink? Your honor please may I be allowed to
Anent the five incidents of rape that were A: In our neighbor. suspend the proceeding considering that the
alleged to have been committed in July witness is psychologically incapable of
1999, the Court disagrees with the ruling of Q: When he took off your shorts and panty further proceeding.
the trial court that all five counts were proven what was the accused wearing at that time?
with moral certainty. The testimony of AAA A: I do not know because I could not see xxxx
on the said incidents is as follows: since it was night time.
Q: I have asked you how did the accused
Q: How many times did [the accused- Q: When he was on top of [you] was he still rape you will you please narrate the whole
appellant] rape you in July 1999? wearing something? incident to this honorable court?
A: Five times. A: No, sir. A: The same that he did when I was 8 years
old, he went on top of me.
Q: Was it in the daytime or night time? Q: What did he do with his penis?
A: Night time. A: He made me hold it. Q: What was the same thing you are talking
about?
Q: Was it in different nights or on the same Q: Then after he made you hold it what did A: He pulled down my panty and went on top
night? he do with it? of me and pump.
A: Different nights. A: He left.
Q: When he pump what did you feel?
Q: Who were present then at that time when xxxx A: Pain.
he raped you five times?
A: My Kuya and other siblings. ATTY. SABARRE:

63
COURT:
Why did you feel pain?
A: He placed his penis inside my vagina,
everytime I urinate I feel pain.
ATTY. SABARRE;
How did you recognize that it was Henry
Arpon when it was night time?
A: It was a moonlight night and our window
was only covered by cloth as cover.[50]
From the above testimony, AAA merely
described a single incident of rape. She
made no reference whatsoever to the other
four instances of rape that were likewise
supposedly committed in the month of July
1999.
The same is also true for the two (2) counts
of rape allegedly committed in August 1999.
AAA narrated only one incident of rape in
this manner:
Q: How many times did [the accused-
appellant] rape you in the month of August
1999?
A: Two times.
Q: Was it during day time or night time?
A: Nighttime.
Q: How did he rape you again that August
1999?
A: He kissed me.
Q: After kissing you what did he do next?
A: He took off his shirts.
Q: After he took off his shirts what
happened?
A: He went on top of me and pump.
Q: When he made a pumping motion on top
of you what did you feel?
A: My vagina was painful and also my chest
because he was heavy.
Q: Why did you feel pain in your vagina?
A: Because he was raping me.
Q: Did his penis penetrate your vagina?
A: I do not know.
Q: If this Henry Arpon is present now in court
could you recognize him?
A: Yes, sir.
Q: Where is he?
A: That man (witness pointing a detention
prisoner when asked his name answered
Henry Arpon).[51]
It is settled that each and every charge of
rape is a separate and distinct crime that the
law requires to be proven beyond
reasonable doubt. The prosecution's
evidence must pass the exacting test of
moral certainty that the law demands to
satisfy the burden of overcoming the
appellant's presumption of innocence.[52]
Thus, including the first incident of rape, the
testimony of AAA was only able to establish
three instances when the accused-appellant
had carnal knowledge of her.
The allegation of the accused-appellant that
the testimony of AAA described the incidents
of rape in a uniform manner does not
convince this Court. To our mind, AAAs
narration of the sexual abuses committed by
the accused-appellant contained an
adequate recital of the evidentiary facts
constituting the crime of rape, i.e., that he
placed his organ in her private part.[53]
Etched in our jurisprudence is the doctrine
that a victim of a savage crime cannot be
expected to mechanically retain and then
give an accurate account of every lurid detail
of a frightening experience a verity born[e]
out of human nature and experience.[54]
We uphold the ruling of the RTC that the
accused-appellants defense of alibi
deserves scant consideration. Alibi is an
inherently weak defense because it is easy
to fabricate and highly unreliable. To merit
approbation, the accused must adduce clear
and convincing evidence that he was in a
place other than the situs criminis at the time
the crime was committed, such that it was
physically impossible for him to have been at
the scene of the crime when it was
committed.[55] [S]ince alibi is a weak
defense for being easily fabricated, it cannot
prevail over and is worthless in the face of
the positive identification by a credible
64
witness that an accused perpetrated the
crime.[56]
In the instant case, we quote with approval
the findings of fact of the trial court that:
The distance of [XXX] to Tacloban City is
just a few kilometers and can be negotiated
by passenger bus in less than one (1) hour,
hence, it is not impossible for the accused to
be present in [XXX] at any time of the day
after working hours while working in
Tacloban. Besides, the accused has his day
off every Sunday, which according to him he
spent in [XXX], Leyte.
The accused was positively identified by the
victim as the person who sexually molested
her beginning that afternoon of 1995, and
subsequently thereafter in the coming years
up to August 1999. She can not be mistaken
on the identity of the accused, because the
first sexual molestation happened during the
daytime, besides, she is familiar with him
being her uncle, the brother of her mother.
[57]
Furthermore, the Court rejects the
contention of the accused-appellant that
AAA may have been prompted to falsely
testify against him (accused-appellant) in
view of the latters quarrel with AAAs parents
when he refused to work with them in the
rice fields.[58] Aside from being
uncorroborated, we find the same specious
and implausible. Where the charges against
the appellant involve a heinous offense, a
minor disagreement, even if true, does not
amount to a sufficient justification for
dragging a young girl's honor to a merciless
public scrutiny that a rape trial brings in its
wake.[59]
As to the accused-appellants objection that
there was no proof of the age of the victim,
we affirm the trial courts finding that the
prosecution sufficiently established the age
of AAA when the incidents of rape were
committed. The testimony of AAA that she
was born on November 1, 1987,[60] the
voluntary stipulation of the accused, with
assistance of counsel, regarding the minority
of the victim during pre-trial and his
testimony regarding his recollection of the
age of the victim,[61] his own niece, all
militate against accused-appellants theory.
In People v. Pruna,[62] the Court established
the guidelines in appreciating age, either as
an element of the crime or as a qualifying
circumstance, as follows:
1. The best evidence to prove the age of the
offended party is an original or certified true
copy of the certificate of live birth of such
party.
2. In the absence of a certificate of live birth,
similar authentic documents such as
baptismal certificate and school records
which show the date of birth of the victim
would suffice to prove age.
3. If the certificate of live birth or authentic
document is shown to have been lost or
destroyed or otherwise unavailable, the
testimony, if clear and credible, of the
victim's mother or a member of the family
either by affinity or consanguinity who is
qualified to testify on matters respecting
pedigree such as the exact age or date of
birth of the offended party pursuant to
Section 40, Rule 130 of the Rules on
Evidence shall be sufficient under the
following circumstances:
a. If the victim is alleged to be below 3 years
of age and what is sought to be proved is
that she is less than 7 years old;
b. If the victim is alleged to be below 7 years
of age and what is sought to be proved is
that she is less than 12 years old;
c. If the victim is alleged to be below 12
years of age and what is sought to be
proved is that she is less than 18 years old.
4. In the absence of a certificate of live birth,
authentic document, or the testimony of the
victim's mother or relatives concerning the
victim's age, the complainant's testimony will
suffice provided that it is expressly and
clearly admitted by the accused.
5. It is the prosecution that has the burden of
proving the age of the offended party. The
failure of the accused to object to the
testimonial evidence regarding age shall not
be taken against him. (Emphases ours.)
65

Notably, in its Decision, the trial court
observed that at the time she took the
witness stand (when she was 14 years old),
the victim, as to her body and facial features,
was indeed a minor.[63]
That the carnal knowledge in this case was
committed through force, threat or
intimidation need no longer be belabored
upon. [I]n rape committed by close kin, such
as the victims father, step-father, uncle, or
the common-law spouse of her mother, it is
not necessary that actual force or
intimidation be employed. Moral influence or
ascendancy takes the place of violence and
intimidation.[64]
Penalties
On the penalties imposable in the instant
case, the former Article 335 of the Revised
Penal Code, as amended, punishes the
crime of rape with reclusion perpetua. The
sixth paragraph thereof also provides that:
The death penalty shall also be imposed if
the crime of rape is committed with any of
the following attendant circumstances:
1. when the victim is under eighteen (18)
years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third civil
degree, or the common law-spouse of the
parent of the victim. (Emphases ours.)
Similarly, the present Article 266-B of the
Revised Penal Code relevantly recites:
ART. 266-B. Penalties. - Rape under
paragraph 1 of the next preceding article
shall be punished by reclusion perpetua.
xxxx
The death penalty shall also be imposed if
the crime of rape is committed with any of
the following aggravating/qualifying
circumstances:
1. When the victim is under eighteen (18)
years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third civil
degree, or the common law spouse of the
parent of the victim. (Emphases ours.)
The Court finds that the circumstances of
minority and relationship qualify the three (3)
counts of rape committed by the accused-
appellant. As a special qualifying
circumstance of the crime of rape, the
concurrence of the victims minority and her
relationship to the accused must be both
alleged and proven beyond reasonable
doubt.[65] In the instant case, the
informations alleged that AAA was less than
eighteen (18) years of age when the
incidents of rape occurred and the accused-
appellant is her uncle, a relative by
consanguinity within the third civil degree.
The said circumstances were also admitted
by the accused-appellant during the pre-trial
conference of the case and again admitted
by him during his testimony.[66]
In People v. Pepito,[67] the Court explained
that [t]he purpose of entering into a
stipulation or admission of facts is to
expedite trial and to relieve the parties and
the court, as well, of the costs of proving
facts which will not be disputed on trial and
the truth of which can be ascertained by
reasonable inquiry. These admissions during
the pre-trial conference are worthy of credit.
Being mandatory in nature, the admissions
made by appellant therein must be given
weight. Consequently, for the first incident of
rape, regardless of whether the same
occurred in 1995 or in 1998, the imposition
of the death penalty is warranted. For the
second and third counts of rape, the
imposable penalty is also death.
Nonetheless, a reduction of the above
penalty is in order.
The RTC and the Court of Appeals failed to
consider in favor of the accused-appellant
the privileged mitigating circumstance of
minority. Although this matter was not
among the issues raised before the Court,
we still take cognizance of the same in
accordance with the settled rule that [i]n a
criminal case, an appeal throws open the
entire case wide open for review, and the
appellate court can correct errors, though
unassigned, that may be found in the
appealed judgment.[68]
66

Pertinently, the first paragraph of Section 7
of Republic Act No. 9344, otherwise known
as the Juvenile Justice and Welfare Act of
2006, provides for the rule on how to
determine the age of a child in conflict with
the law,[69] viz:
SEC. 7. Determination of Age. The child in
conflict with the law shall enjoy the
presumption of minority. He/She shall enjoy
all the rights of a child in conflict with the law
until he/she is proven to be eighteen (18)
years of age or older. The age of a child may
be determined from the child's birth
certificate, baptismal certificate or any other
pertinent documents. In the absence of
these documents, age may be based on
information from the child himself/herself,
testimonies of other persons, the physical
appearance of the child and other relevant
evidence. In case of doubt as to the age of
the child, it shall be resolved in his/her favor.
Furthermore, in Sierra v. People,[70] we
clarified that, in the past, the Court deemed
sufficient the testimonial evidence regarding
the minority and age of the accused
provided the following conditions concur,
namely: (1) the absence of any other
satisfactory evidence such as the birth
certificate, baptismal certificate, or similar
documents that would prove the date of birth
of the accused; (2) the presence of
testimony from accused and/or a relative on
the age and minority of the accused at the
time of the complained incident without any
objection on the part of the prosecution; and
(3) lack of any contrary evidence showing
that the accused's and/or his relatives'
testimonies are untrue.[71]
In the instant case, the accused-appellant
testified that he was born on February 23,
1982 and that he was only 13 years old
when the first incident of rape allegedly
happened in 1995.[72] Other than his
testimony, no other evidence was presented
to prove the date of his birth. However, the
records of this case show neither any
objection to the said testimony on the part of
the prosecution, nor any contrary evidence
to dispute the same. Thus, the RTC and the
Court of Appeals should have appreciated
the accused-appellants minority in
ascertaining the appropriate penalty.
Although the acts of rape in this case were
committed before Republic Act No. 9344
took effect on May 20, 2006, the said law is
still applicable given that Section 68 thereof
expressly states:
SEC. 68. Children Who Have Been
Convicted and are Serving Sentences.
Persons who have been convicted and are
serving sentence at the time of the effectivity
of this Act, and who were below the age of
eighteen (18) years at the time of the
commission of the offense for which they
were convicted and are serving sentence,
shall likewise benefit from the retroactive
application of this Act. They shall be entitled
to appropriate dispositions provided under
this Act and their sentences shall be
adjusted accordingly. They shall be
immediately released if they are so qualified
under this Act or other applicable law.
People v. Sarcia[73] further stressed that
[w]ith more reason, the Act should apply to
[a] case wherein the conviction by the lower
court is still under review.
Thus, in the matter of assigning criminal
responsibility, Section 6 of Republic Act No.
9344 is explicit in providing that:
SEC. 6. Minimum Age of Criminal
Responsibility. A child fifteen (15) years of
age or under at the time of the commission
of the offense shall be exempt from criminal
liability. However, the child shall be
subjected to an intervention program
pursuant to Section 20 of the Act.
A child above fifteen (15) years but below
eighteen (18) years of age shall likewise be
exempt from criminal liability and be
subjected to an intervention program, unless
he/she has acted with discernment, in which
case, such child shall be subjected to the
appropriate proceedings in accordance with
this Act.
The exemption from criminal liability herein
established does not include exemption from
civil liability, which shall be enforced in
accordance with existing laws. (Emphases
ours.)
67

As held in Sierra, the above provision
effectively modified the minimum age limit of
criminal irresponsibility in paragraphs 2 and
3 of the Revised Penal Code, as amended,
[74] i.e., from under nine years of age and
above nine years of age and under fifteen
(who acted without discernment) - to fifteen
years old or under and above fifteen but
below 18 (who acted without discernment) in
determining exemption from criminal liability.
[75]
Accordingly, for the first count of rape, which
in the information in Criminal Case No.
2000-01-46 was allegedly committed in
1995, the testimony of the accused-
appellant sufficiently established that he was
only 13 years old at that time. In view of the
failure of the prosecution to prove the exact
date and year of the first incident of rape,
i.e., whether the same occurred in 1995 or in
1998 as previously discussed, any doubt
therein should be resolved in favor of the
accused, it being more beneficial to the
latter.[76] The Court, thus, exempts the
accused-appellant from criminal liability for
the first count of rape pursuant to the first
paragraph of Section 6 of Republic Act No.
9344. The accused-appellant, nevertheless,
remains civilly liable therefor.
For the second and third counts of rape that
were committed in the year 1999, the
accused-appellant was already 17 years old.
We likewise find that in the said instances,
the accused-appellant acted with
discernment. In Madali v. People,[77] the
Court had the occasion to reiterate that
[d]iscernment is that mental capacity of a
minor to fully appreciate the consequences
of his unlawful act. Such capacity may be
known and should be determined by taking
into consideration all the facts and
circumstances afforded by the records in
each case. In this case, the fact that the
accused-appellant acted with discernment
was satisfactorily established by the
testimony of AAA, which we had already
found to be credible. Verily, AAA testified that
she at first did not tell anybody about the
sexual assault she suffered at the hands of
the accused-appellant because the latter
told her that he would kill her mother if she
did so. That the accused-appellant had to
threaten AAA in an effort to conceal his
dastardly acts only proved that he knew full
well that what he did was wrong and that he
was aware of the consequences thereof.
Accordant with the second paragraph of
Article 68 of the Revised Penal Code, as
amended, and in conformity with our ruling
in Sarcia, when the offender is a minor
under eighteen (18) years of age, the
penalty next lower than that prescribed by
law shall be imposed, but always in the
proper period. However, for purposes of
determining the proper penalty because of
the privileged mitigating circumstance of
minority, the penalty of death is still the
penalty to be reckoned with. Thus, for the
second and third counts of rape, the proper
penalty imposable upon the accused-
appellant is reclusion perpetua for each
count.
Had the trial court correctly appreciated in
favor of the accused-appellant the
circumstance of his minority, the latter would
have been entitled to a suspension of
sentence for the second and third counts of
rape under Section 38 of Republic Act No.
9344, which reads:
SEC. 38. Automatic Suspension of
Sentence. Once the child who is under
eighteen (18) years of age at the time of the
commission of the offense is found guilty of
the offense charged, the court shall
determine and ascertain any civil liability
which may have resulted from the offense
committed. However, instead of pronouncing
the judgment of conviction, the court shall
place the child in conflict with the law under
suspended sentence, without need of
application. Provided, however, That
suspension of sentence shall still be
supplied even if the juvenile is already
eighteen years (18) of age or more at the
time of the pronouncement of his/her guilt.
Upon suspension of sentence and after
considering the various circumstances of the
child, the court shall impose the appropriate
disposition measures as provided in the
Supreme Court Rule on Juvenile in Conflict
with the Law.
68
Be that as it may, the suspension of
sentence may no longer be applied in the
instant case given that the accused-
appellant is now about 29 years of age and
Section 40 of Republic Act No. 9344 puts a
limit to the application of a suspended
sentence, namely, when the child reaches a
maximum age of 21. The said provision
states:
SEC. 40. Return of the Child in Conflict with
the Law to Court. If the court finds that the
objective of the disposition measures
imposed upon the child in conflict with the
law have not been fulfilled, or if the child in
conflict with the law has willfully failed to
comply with the conditions of his/her
disposition or rehabilitation program, the
child in conflict with the law shall be brought
before the court for execution of judgment.
If said child in conflict with the law has
reached eighteen (18) years of age while
under suspended sentence, the court shall
determine whether to discharge the child in
accordance with this Act, to order execution
of sentence, or to extend the suspended
sentence for a certain specified period or
until the child reaches the maximum age of
twenty-one (21) years. (Emphasis ours.)
Nonetheless, the disposition set forth under
Section 51 of Republic Act No. 9344 is
warranted in the instant case, to wit:
SEC. 51. Confinement of Convicted Children
in Agricultural Camps and Other Training
Facilities. A child in conflict with the law may
after conviction and upon order of the court,
be made to serve his/her sentence, in lieu of
confinement in a regular penal institution, in
an agricultural camp and other training
facilities that may be established,
maintained, supervised and controlled by the
[Bureau of Corrections], in coordination with
the [Department of Social Welfare and
Development].
Additionally, the civil liability of the accused-
appellant for the second and third incidents
of rape shall not be affected by the above
disposition and the same shall be enforced
in accordance with law and the
pronouncements in the prevailing
jurisprudence.
Civil Liability
The Court recently ruled in People v.
Masagca, Jr.[78] that [c]ivil indemnity is
mandatory when rape is found to have been
committed. Based on prevailing
jurisprudence, we affirm the award of
P75,000.00 to the rape victim as civil
indemnity for each count. We also explained
in Sarcia that [t]he litmus test x x x in the
determination of the civil indemnity is the
heinous character of the crime committed,
which would have warranted the imposition
of the death penalty, regardless of whether
the penalty actually imposed is reduced to
reclusion perpetua.[79] The trial courts
award of civil indemnity of P50,000.00 for
each count of rape is therefore increased to
P75,000.00 for each of the three (3) counts
of rape committed in the instant case.
Anent the award of moral damages, the
same is justified without need of proof other
than the fact of rape because it is assumed
that the victim has suffered moral injuries
[from the experience she underwent].[80]
We also increase the trial courts award of
P50,000.00 to P75,000.00 for each of the
three (3) counts of rape herein established in
keeping with the recent case law.[81]
Lastly, we affirm the Court of Appeals award
of exemplary damages. As held in People v.
Llanas, Jr.,[82] [t]he award of exemplary
damages is also proper not only to deter
outrageous conduct, but also in view of the
aggravating circumstances of minority and
relationship surrounding the commission of
the offense, both of which were alleged in
the information and proved during the trial.
The appellate courts award of P25,000.00
as exemplary damages is raised to
P30,000.00 for each of the three (3) counts
of rape in keeping with the current
jurisprudence on the matter.[83]
WHEREFORE, in light of the foregoing, the
appeal is DENIED. The Decision dated
February 8, 2008 of the Court of Appeals in
CA-G.R. CR.-H.C. No. 00560 is hereby
AFFIRMED with the following
MODIFICATIONS:
69

(1) For the first count of rape herein
established, the accused-appellant Henry
Arpon y Juntilla is hereby EXEMPTED from
criminal liability.
(2) For the second and third counts of
rape, the accused-appellant is found
GUILTY beyond reasonable doubt of two (2)
counts of QUALIFIED RAPE and is hereby
sentenced to suffer the penalty of reclusion
perpetua for each count.
(3) As to the civil liability, the accused-
appellant is ORDERED to pay AAA for each
of the three (3) counts of rape P75,000.00
as civil indemnity, P75,000.00 as moral
damages and P30,000.00 as exemplary
damages, plus legal interest on all damages
awarded at the legal rate of 6% from the
date of finality of this Decision.
(4) The case is hereby REMANDED to
the court of origin for its appropriate action in
accordance with Section 51 of Republic Act
No. 9344.
No costs.
SO ORDERED.
===
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 167179 January 28, 2008
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee,
vs.
ELMER CEREDON y PAGARAN, accused-
appellant.
DECISION
REYES R.T., J.:
Sa mga karumal-dumal na krimen, walang
higit na nagpapasiklab ng galit,
pagkarimarim at pagkapoot kaysa sa
panghahalay sa sariling laman. Ito ay
kasuklam-suklam at nakapandidiri na
marapat lamang na maramdaman ng
nagkasala ang ngalit at pagtatakwil sa kanya
ng lipunan. Sa pagkaka-repeal ng Death
Penalty Law noong June 24, 2006 sa
pamamagitan ng Republic Act (R.A.) No.
9346, ang akusadong umaapela ay
sampung ulit na hinahatulan ng reclusion
perpetua. Sa piitan na lilipas ang kanyang
mga araw kasama ang umuusig na gunita
ng pagkakasala sa kanyang batang-batang
kapatid.
AMONG the heinous crimes, none stirs up
so much public outrage, repulsion and
hatred than incestuous rape. It is so odious
and disgusting that the perpetrator rightfully
must feel the anger and spurn of society.1
With the repeal of the Death Penalty Law2
on June 24, 2006 through the passage of
R.A. No. 9347,3 accused-appellant is
sentenced ten times to reclusion perpetua.
He is to live out his days under incarceration
with thoughts of his crimes against his sister
of tender age to haunt his conscience.
The Case
Appellant Elmer Ceredon y Pagaran was
indicted for ten (10) counts of rape, defined
and penalized under Article 266(A) and (B)
of the Revised Penal Code, as amended by
R.A. No. 8353 and R.A. No. 7659, allegedly
committed as follows:
1. In Criminal Case No. 08-1296:
That sometime in 1995, in the Municipality of
Gattaran, Province of Cagayan, and within
the jurisdiction of this Honorable Court, the
above-named accused armed with a knife,
with lewd design, by use of force or
intimidation, did then and there willfully,
unlawfully, and feloniously have carnal
knowledge of the herein offended party,
AAA,4 his youngest sister, a minor, ten (10)
years of age, all against her will and
consent.
CONTRARY TO LAW.5
2. In Criminal Case No. 08-1297:
That sometime in 1995, in the Municipality of
Gattaran, Province of Cagayan, and within
the jurisdiction of this Honorable Court, the
70
above-named accused armed with a knife,
with lewd design, by use of force or
intimidation, did then and there willfully,
unlawfully, and feloniously have carnal
knowledge of the herein offended party,
AAA, his youngest sister, a minor, ten (10)
years of age, all against her will and
consent.
CONTRARY TO LAW.6
3. In Criminal Case No. 08-1298:
That sometime in 1995, in the Municipality of
Gattaran, Province of Cagayan, and within
the jurisdiction of this Honorable Court, the
above-named accused armed with a knife,
with lewd design, by use of force or
intimidation, did then and there willfully,
unlawfully, and feloniously have carnal
knowledge of the herein offended party,
AAA, his youngest sister, a minor, ten (10)
years of age, all against her will and
consent.
CONTRARY TO LAW.7
4. In Criminal Case No. 08-1299:
That sometime in 1995, in the Municipality of
Gattaran, Province of Cagayan, and within
the jurisdiction of this Honorable Court, the
above-named accused armed with a knife,
with lewd design, by use of force or
intimidation, did then and there willfully,
unlawfully, and feloniously have carnal
knowledge of the herein offended party,
AAA, his youngest sister, a minor, ten (10)
years of age, all against her will and
consent.
CONTRARY TO LAW.8
5. In Criminal Case No. 08-1300:
That sometime in 1995, in the Municipality of
Gattaran, Province of Cagayan, and within
the jurisdiction of this Honorable Court, the
above-named accused armed with a knife,
with lewd design, by use of force or
intimidation, did then and there willfully,
unlawfully, and feloniously have carnal
knowledge of the herein offended party,
AAA, his youngest sister, a minor, ten (10)
years of age, all against her will and
consent.
CONTRARY TO LAW.9
6. In Criminal Case No. 08-1301:
That sometime in 1996, in the Municipality of
Gattaran, Province of Cagayan, and within
the jurisdiction of this Honorable Court, the
above-named accused armed with a knife,
with lewd design, by use of force or
intimidation, did then and there willfully,
unlawfully, and feloniously have carnal
knowledge of the herein offended party,
AAA, his youngest sister, a minor, eleven
(11) years of age, all against her will and
consent.
CONTRARY TO LAW.10
7. In Criminal Case No. 08-1302:
That sometime in 1996, in the Municipality of
Gattaran, Province of Cagayan, and within
the jurisdiction of this Honorable Court, the
above-named accused armed with a knife,
with lewd design, by use of force or
intimidation, did then and there willfully,
unlawfully, and feloniously have carnal
knowledge of the herein offended party,
AAA, his youngest sister, a minor, eleven
(11) years of age, all against her will and
consent.
CONTRARY TO LAW.11
8. In Criminal Case No. 08-1303:
That sometime in 1998, in the Municipality of
Gattaran, Province of Cagayan, and within
the jurisdiction of this Honorable Court, the
above-named accused armed with a knife,
with lewd design, by use of force or
intimidation, did then and there willfully,
unlawfully, and feloniously have carnal
knowledge of the herein offended party,
AAA, his youngest sister, a minor, thirteen
(13) years of age, all against her will and
consent.
CONTRARY TO LAW.12
9. In Criminal Case No. 08-1304:
That sometime in 1998, in the Municipality of
Gattaran, Province of Cagayan, and within
71
the jurisdiction of this Honorable Court, the
above-named accused armed with a knife,
with lewd design, by use of force or
intimidation, did then and there willfully,
unlawfully, and feloniously have carnal
knowledge of the herein offended party,
AAA, his youngest sister, a minor, thirteen
(13) years of age, all against her will and
consent.
CONTRARY TO LAW.13
10. In Criminal Case No. 08-1305:
That sometime in 2000, in the Municipality of
Gattaran, Province of Cagayan, and within
the jurisdiction of this Honorable Court, the
above-named accused armed with a knife,
with lewd design, by use of force or
intimidation, did then and there willfully,
unlawfully, and feloniously have carnal
knowledge of the herein offended party,
AAA, his youngest sister, a minor, fifteen
(15) years of age, all against her will and
consent.
CONTRARY TO LAW.14
On August 13, 2001, at his arraignment
before the Regional Trial Court (RTC),
Branch 8, Aparri, Cagayan, appellant
pleaded "not guilty" to all ten (10) charges.
However, on September 3, 2001, during the
pre-trial conference, his counsel manifested
before the trial court the desire of appellant
to change his plea to "guilty" on all ten (10)
counts. Said manifestation was granted and
appellant was re-arraigned.14-a
Thereafter, joint trial on the merits ensued.
Teresa Andres-Teresa, Grade IV teacher of
private complainant AAA, and AAA herself
took the witness stand for the prosecution.
No evidence was presented for the defense.
The Facts
Criminal Case No. 08-1296
The corruption of AAA's childhood innocence
commenced sometime in 1995 when she
was merely ten (10) years of age. It occurred
at mid-day in her own home at Baraoidan,
Gattaran, Cagayan.15 She was playing with
her brothers BBB and CCC when appellant
beckoned to her. She ignored him for fear of
getting whipped. His calls unheeded,
appellant came out of the house and
ordered their two brothers to go down to the
river. BBB and CCC did as they were told.16
Holding AAA by the arms, appellant then
brought her into the house. She cried but
appellant told her in Ilocano "Uki ni nam, ta
bedbedak ta ngiwat mo" which roughly
translates to "Vulva of your mother, I will gag
your mouth." Appellant proceeded to search
for a handkerchief.17
AAA ran towards her youngest brother's
cradle but appellant pulled her away to
another room where he gagged her and
whipped her with a belt.18 After that,
appellant tied her hands together behind her
back with a rope, pulled her dress down, laid
her on a bed and, with more rope, tied each
of her legs to separate corners of the bed.19
Appellant then left the room.20
When he returned, he was wielding a pair of
scissors. He snipped off AAA's shorts and
underwear then shed his own clothes.
Appellant then mounted her and inserted his
penis into her vagina. The penetration
caused her great pain.21 Afterwards,
appellant wiped her genital region with a
handkerchief and showed it to her. It was
covered with blood.22
Moments later, appellant heard their sister
DDD's voice prompting him to procure a
towel with which to cover AAA. Having
concealed her nudity in this manner,
appellant hastily donned his garments and
left laughing.23
When DDD and their brothers BBB and CCC
entered the room, they found AAA still tied to
the bed. One of her brothers pulled off the
towel and untied her.24 AAA did not tell them
that appellant had raped her because of her
fear of appellant and his threats that he
would kill them all.25
Criminal Case No. 1297
The second incident of rape also occurred in
1995.26 AAA was tending to their youngest
brother when appellant summoned her to
72
extract his armpit hairs. She turned a deaf
ear. Appellant then instructed their brother
BBB to take their youngest sibling to the
river to bathe him. BBB complied.27 Left
alone now with AAA, appellant dragged her
inside a room and ordered her to remove her
clothes.28 When she refused, he forcibly
undressed her at knife-point.29
Stripped naked, AAA was then brought to
the bed - the same bed on which appellant
had previously committed the dastardly
deed. While lying on the bed, appellant
disrobed and, while poking her with his knife,
mounted her. He then penetrated her vagina
with his penis. After satisfying himself, he
again threatened to kill all of them should
she report the matter to anyone.30
Criminal Case No. 08-1298
Later that same year, appellant raped AAA
for the third time.31 At the time of the
incident, their parents were out of the house.
32 While sleeping on top of their trunk, AAA
was awakened when appellant started
undressing her. She cried and begged him
to stop, but he disregarded her pleas and
proceeded to sexually abuse her.33 Despite
her protestations, appellant proceeded to
insert his penis into the young girl's vagina.
34 After his lust had been sated, he
reiterated his threat to kill them all should
she reveal the incident to anyone.35
Criminal Case No. 08-1299
A few days after the third rape, AAA was
again sexually abused by appellant inside
their house, in the same room and upon the
same bed. As in the previous incidents,
appellant poked a knife at her to compel her
to submit to his bestial urges.36 Out of fear,
she did not struggle or resist. Thereafter,
appellant, had carnal knowledge of her.37
Criminal Case No. 08-1300
The fifth rape happened in the same year.38
By this time, appellant was already married.
39 His bestial acts towards his own sister
nonetheless continued. It was noontime and
AAA had just come home from visiting their
grandfather.40 When she entered the
bedroom, appellant quickly followed her in,
closed the door behind him and locked it.41
Poking his knife at her, he told her to strip.
When she refused, appellant forcibly
undressed her. He then removed his own
clothes and laid her on the bed.42 While
pointing a knife at her, he mounted her and
inserted his penis into her vagina.43
She pleaded with appellant to stop doing it
to her by saying, "Manong kaasiandak kadin,
husto na kadin," which means "Brother, have
pity on me, please stop it." Appellant,
however, just slapped her mouth and
proceeded to rape her. Afterwards, he
issued his threat not to divulge the matter to
anyone lest he would kill them all.44
Criminal Case No. 08-1301
In 1996, appellant, for the sixth time, raped
AAA45 who had turned eleven (11) years
old. She was playing alone in front of their
house when she saw appellant approaching
her. As she was afraid of him, she tried to
run away. She stumbled, however, and he
was able to catch up with her. Appellant then
dragged her inside where he laid her on the
living room floor. They were alone at home
as the rest of the family had gone to harvest
rice at their kaingin.46
Appellant proceeded to remove AAA's dress
and underwear. Then, he removed his own
clothes. Subsequently, he mounted her and
inserted his penis into her vagina against her
will.47 Afterwards, he uttered the same
threats to kill everyone should she expose
her defloration to anyone.48
Criminal Case No. 08-1302
The seventh occurrence of rape was also in
1996. The family had just transferred to a
new house situated at the foot of a mountain
in Baraoidan, Gattaran, Cagayan. They were
forced to relocate to a new house after their
old home was swept away in a flood.49
When probed by the prosecutor as to the
details of the seventh incident of rape, AAA
disclosed that she could no longer
remember the exact manner how appellant
perpetrated the rape. She was, however,
certain that she was twice raped in 1996 by
the same.50
73

Criminal Case No. 08-1303
The eighth incident of rape took place in
199851 when AAA was thirteen (13) years of
age. She was then lying alone inside their
house. Her parents, along with her other
siblings, were out working in their kaingin.52
Suddenly, appellant appeared and moved
closer to her. She tried to rise but he pushed
her back down. Appellant then forcibly
removed the young girl's clothes, her shorts
and panty. He then proceeded to unbutton
his pants. 53
According to her, she could not have
escaped while appellant was undressing
because she feared what he might do to her.
After removing his own clothes, appellant
went on top of her and commenced raping
her.54
Just as she did countless times before, AAA
pleaded with appellant "Manong, kuston
kaasiannak kadin" ("Brother, enough, have
pity on me"). Instead of desisting, appellant
slapped her in the mouth. After the sexual
abuse, he issued the same threatening
statements to her.55
Criminal Case No. 08-1304
Also in 1998, the ninth rape happened. It
occurred under similar circumstances. The
rest of their family had gone to their kaingin
and private complainant AAA was left alone
in their house at the foot of the mountain.56
Seeing that she was left alone to tend the
house, appellant again pounced on the
opportunity to impose his bestial urges on
his young sister. At that time, AAA was still
thirteen (13) years old.
As in the previous offenses, appellant forced
AAA to undress. After ridding himself of his
clothing, appellant mounted her fragile frame
and penetrated the young girl's vagina.57
Criminal Case No. 08-1305
was then fifteen (15) years old. It was
committed in a new house, also in
Baraoidan, Gattaran, Cagayan, where they
transferred.59 Appellant had his own house
by then situated about five hundred (500)
meters away.60 Their father was lying in
state at appellant's house.61
On said date at noontime, their mother sent
AAA home to feed the chickens.62 She
obeyed and went inside their house to fetch
rice with which to feed them when appellant
followed and grabbed her. She resisted and
kicked him in the abdomen. He fell down
and she tried to run but he was able to grab
her foot causing her to stumble and fall.63
Thereafter, appellant removed all her
clothes. He kissed her lips and breasts
several times, mounted her, then sexually
violated her.64 All the while, he was flaunting
his perversion by telling his sister, "Nagimas
gayam ti kabagis ko" ("I derived so much
satisfaction from my sister"). Afterwards, he
issued the same previous threats to her.65
Subsequent Events
However, on September 18, 2000, AAA
reached the end of her rope.
Notwithstanding appellant's threats, she
revealed to her sister DDD, friend Giselle
and teacher Teresa that she was raped by
appellant, her brother.66 Teresa, upon
hearing AAA's revelation, accompanied her
to their head teacher Felix Salvador. Then,
together, they went to the barangay captain
who told them to report the matter to the
police. This they did.67
On September 20, 2000, policemen were
dispatched to bring appellant to the police
station. There, a confrontation arose
between AAA and appellant. Upon seeing
appellant, AAA punched him and said
"Hayop ka, baboy, nirape mo ako" ("You
animal, pig, you raped me").68
On September 21, 2000, there was a
second confrontation.69 Present were their
mother, their sister DDD, their uncle
Raymundo Bumanglag, appellant's wife
Josephine, and AAA's teachers Charito
Elesterio, Jerry Roque and Elpidio
Salvatierra. In said confrontation, AAA
accused her brother, appellant, of raping her
ten (10) times, while he admitted to having
raped her thrice only. Josephine, appellant's
74
wife, told him to admit so that AAA could
forgive him.70 He then admitted that he had
raped her ten (10) times and asked for
forgiveness, beseeching her to take pity on
his family. AAA replied that she could no
longer forgive him because her heart had
"already hardened like stone." Appellant
cried.71
RTC and CA Dispositions
On January 8, 2002, the trial court rendered
its decision72 convicting appellant on all ten
counts of rape, with the following disposition:
WHEREFORE, the Court finds accused
Elmer Ceredon y Pagaran "GUILTY" beyond
reasonable doubt in all the ten (10) Criminal
Informations for "RAPE" and is hereby
sentence (sic) to suffer the supreme penalty
of "DEATH" in each of the ten (10) criminal
informations.
SO ORDERED.73 (Underscoring supplied)
Hence, the automatic appeal to the Supreme
Court. However, on the strength of People v.
Mateo,74 the case was forwarded to the
Court of Appeals (CA) for intermediate
review.
In its Decision75 dated January 28, 2005,
the CA affirmed the judgment of the trial
court but with modification providing for
damages, thus:
WHEREFORE, the judgment of conviction is
AFFIRMED with the MODIFICATION that for
each count of rape the accused should pay
private complainant the amount of (1)
P75,000.00 as civil indemnity; (2)
P50,000.00 as moral damages; and (3)
P25,000.00 as exemplary damages.
Let the entire records of this case be
elevated to the Supreme Court for review
pursuant to A.M. No. 00-5-03-SC
(Amendments to the Revised Rules of
Criminal Procedure to Govern Death Penalty
Cases), which took effect on October 15,
2004.
SO ORDERED.76 (Underscoring supplied)
Issues
Since the Office of the Solicitor General, on
behalf of the People, and the Public
Attorney's Office, as defense counsel to
appellant, had both submitted Manifestations
in lieu of Supplemental Briefs, the Court is
now faced in this review with the same
assignment of errors appellant presented
before the CA, to wit:
I THE DATE OF THE COMMISSION OF THE
THE TRIAL COURT GRAVELY ERRED IN
FINDING ACCUSED-APPELLANT GUILTY
BEYOND REASONABLE DOUBT OF THE
CRIME CHARGED BASED ON AN
IMPROVIDENT PLEA OF GUILTY.
II
ASSUMING ARGUENDO THAT THERE
WAS NO IMPROVIDENT PLEA OF GUILTY,
THE TRIAL COURT ERRED IN
CONVICTING ACCUSED-APPELLANT IN
CRIMINAL CASES NOS. 08-1296; 08-1297;
08-1298; 08-1299; 08-1300; 08-1301;
08-1302; 08-1303 AND 08-1304;
CONSIDERING THAT THE SAID
INFORMATIONS FAILED TO
SUFFICIENTLY ESTABLISH WITH
PARTICULARITY THE DATES OF THE
COMMISSION OF THE OFFENSE.
III
ASSUMING AGAIN THAT THERE WAS NO
IMPROVIDENT PLEA OF GUILTY, THE
TRIAL COURT GRAVELY ERRED IN
IMPOSING THE DEATH PENALTY UPON
THE ACCUSED-APPELLANT IN CRIMINAL
CASE NO. 08-1305.
IV
ASSUMING FURTHER THAT THE
PROSECUTION HAS SUFFICIENTLY
ESTABLISH (SIC) WITH PARTICULARITY
OFFENSE, THE TRIAL COURT GRAVELY
ERRED IN IMPOSING THE DEATH
PENALTY ON THE ACCUSED AS THE
QUALIFYING CIRCUMSTANCE THAT THE
ACCUSED IS THE BROTHER OF THE
VICTIM AND, HENCE, A RELATIVE WITHIN
THE SECOND DEGREE OF
75
CONSANGUINITY WAS NOT PROPERLY
ALLEGED.77 (Underscoring supplied)
Our Ruling
No Improvident Plea of Guilt
Appellant claims that the trial court based its
ruling of conviction on his "improvident plea
of guilt," relying on Section 3, Rule 116 of
the Rules of Court, to wit:
Section 3. Plea of guilty to capital offense;
reception of evidence. - When the accused
pleads guilty to a capital offense, the court
shall conduct a searching inquiry into the
voluntariness and full comprehension of the
consequences of his plea and shall require
the prosecution to prove his guilt and the
precise degree of culpability. The accused
may present evidence in his behalf.78
He argues that when he was re-arraigned
and he pleaded "guilty" to all ten charges of
rape levelled against him, he was not fully
apprised of the consequences of his change
of plea from "not guilty" to "guilty." According
to him, the trial court did not inquire as to the
voluntariness of his plea and that it failed to
explain fully to him that once convicted, he
would be meted the death penalty under
R.A. No. 7659. Hence, he contends, his
conviction should be set aside.
We cannot agree.
The rule is where the accused desires to
plead guilty to a capital offense, the court is
enjoined to observe the following:
1. It must conduct a searching inquiry into
the voluntariness and full comprehension of
the consequences of his plea;
2. The court must require the prosecution to
present evidence to prove the guilt of the
accused and the precise degree of his
culpability; and
3. The court must ask the accused if he
desires to present evidence in his behalf and
allow him to do so if he desires.79
There is no definite and concrete rule on
how a trial judge may go about the matter of
a proper "searching inquiry" as required by
the aforecited rule. It is incumbent upon a
trial judge to ascertain and be fully
convinced that the plea of guilty was
voluntarily made and its consequences fully
comprehended by the accused.80
Records reveal that appellant was duly
assisted by his counsel, both in his first
arraignment and re-arraignment. In fact, it
was his counsel who manifested before the
trial court that appellant desired to change
his plea from "not guilty" to "guilty" on all ten
charges of rape filed against him by his
younger sister.
Besides being assisted by counsel all
throughout the proceedings, when appellant
was re-arraigned, the charges were read
and explained to him in Ilocano, his native
tongue.81 He cannot now claim that he was
unaware of the consequences of his change
of plea.
More than that, appellant admitted raping
private complainant AAA. When confronted
by AAA, their mother, sister DDD, and their
uncle Raymundo Bumanglag, appellant
readily admitted to violating his sister AAA
on at least three occasions. Sensing that
AAA was only angered by his fractional
admission, and through the prodding of his
wife Josephine for him to admit the whole
truth, appellant confessed to the ten counts
of rape.
At any rate, contrary to appellant's assertion,
he was convicted by the trial court, not on
the basis of his plea of guilty, but on the
strength of the evidence adduced by the
prosecution. As consistently held by the
Court,82 while convictions based on pleas of
guilt to capital offenses have been set aside
because of the improvidence of the plea, the
same holds true only when such plea is the
sole basis of the judgment.
When, as in this case, the trial court relied
on sufficient and credible evidence to convict
the accused beyond reasonable doubt, the
same must be sustained for the simple
reason that the conviction is predicated not
on the guilty plea of accused but on the
convincing evidence proving his commission
of the offenses charged.
76

Indeed, there were instances, such as in
People v. Lakindanum,83 where even when
the court found that the judge was remiss in
his duty to conduct a searching inquiry, the
conviction was sustained in the interest of
justice:
The Court observes that, indeed, the
manner by which the trial court judge
conducted the inquiry into the voluntariness
and full comprehension of the accused-
appellant's plea of guilty leaves much to be
desired.
xxxx
From the records of the proceedings in the
court below, it can be gleaned that the trial
judge's manner of apprising Lakindanum of
the consequences of his plea was at best,
cursory, to wit:
xxxx
From the foregoing, it is clear that the judge
can hardly be said to have satisfied the
requirement of conducting a searching
inquiry into the voluntariness and full
comprehension by the accused of entering a
guilty plea. Worse, the judge erroneously
informed Lakindanum that by pleading guilty,
the latter forfeited his right to testify and to
adduce evidence in his defense. x x x.
xxxx
From the foregoing positive identification by
the child victim of her rapist and her candid
narration of the circumstances surrounding
the rape, it is clear that accused-appellant
was properly convicted for robbing Catherine
of her innocence and childhood. This Court
cannot, on mere procedural grounds, allow
the revolting perversion of the accused-
appellant to go unpunished.84 (Emphasis
supplied)
Appellant's conviction must be upheld as
there was no such error of accepting an
improvident plea committed by the trial
court.
There can only be an improvident plea of
guilt under Section 3, Rule 116 where there
is a possibility of an accused being meted
out the supreme penalty of death. In the
words of said section, "When accused
pleads guilty to a capital offense, the court
shall conduct a searching inquiry x x x, etc."
The obvious rationale for this is to ascertain
that accused truly understands the dire
consequences of his plea. Considering that
R.A. No. 9346 has prohibited the imposition
of the death penalty, the raison d'etre behind
said rule is absent in the case at bar.
Exact dates of commission
need not be alleged.
Appellant next contends that the
Informations filed against him do not
sufficiently charge the offenses committed
because the exact dates of commission are
not alleged. Hence, his conviction is not
warranted.
The contention is without merit.
The date or time of the commission of the
rape need not be alleged with precision. It is
enough for the information or complaint to
state that the crime has been committed at a
time as near as possible to the date of its
actual commission. Failure to allege the
exact date when the crime happened does
not render the information defective, much
less void.85
An information is valid as long as it distinctly
states the elements of the offense and the
constitutive acts or omissions. The exact
date of the commission of a crime is not an
essential element of it.86 Thus, in a
prosecution for rape, the material fact or
circumstance to be considered is the
occurrence of the rape, not the time of its
commission.87 The failure to specify the
exact date or time when it was committed
does not ipso facto make the information
defective on its face.88
The date or time of the commission of rape
is not a material ingredient of the said crime
because the gravamen of rape is carnal
knowledge of a woman through force and
intimidation. In fact, the precise time when
the rape takes place has no substantial
bearing on its commission. As such, the date
or time need not be stated with absolute
accuracy. It is sufficient that the complaint or
77
information states that the crime has been
committed at any time as near as possible to
the date of its actual commission.89
Besides, as succinctly explained by the trial
court:
[Private-complainant] was only ten (10)
years old in 1995 and about eleven (11)
years old in 1996 she being born on
February 18, 1985. It is but natural for her
not to remember the dates. More so when it
has a very negative, horrifying and traumatic
effect and impact on her life.90
Further, it is already too late in the day for
appellant to question the sufficiency of the
information. He had all the time to raise this
issue during the course of the trial,
particularly during his arraignment. He could
have filed for a bill of particulars in order to
be properly informed of the dates of the
alleged rapes. However, appellant chose to
be silent and never lifted a finger to question
the information. As a result, he is deemed to
have waived whatever objections he had; he
cannot now be heard to seek affirmative
relief. Furthermore, objections as to matters
of form in the information cannot be made
for the first time on appeal.91
Relationship as qualifying circumstance
may be alleged in layman's terms.
Nor was there any defect in the Informations
when they merely averred that the victim
was the youngest sister of appellant. We do
not agree with the defense that in order for
relationship to qualify in this case, it must be
mentioned that the victim is a "relative within
the second degree of consanguinity."
This is not a novel question. The same issue
was addressed by the Court in People v.
Sanchez.92 In the said case, appellant
argued that he could not be meted the death
penalty for raping his sister for failure of the
information to allege that said private
complainant was a "relative within the third
civil degree of consanguinity."
The Court struck down appellant's argument
in the following tenor:
We have held in People v. Ferolino, that:
"If the offender is merely a relation - not a
parent, ascendant, stepparent, or guardian
or common law spouse of the mother of the
victim - it must be alleged in the information
that he is a relative by consanguinity or
affinity (as the case may be) within the civil
degree. That relationship by consanguinity
or affinity was not alleged in the informations
in these cases. Even if it was, it was still
necessary to further allege that such
relationship was within the third civil degree."
The present case is not within the
contemplation of said ruling considering that
in the Ferolino case, the victim is a niece of
the offender while in the present case the
victim is a sister of the offender. It was
deemed necessary in the Ferolino case to
require that it must be specifically alleged in
the Information that the offender is "a
relative by consanguinity or affinity (as the
case may be) within the third civil degree"
because we acknowledge the fact that there
are niece-uncle relationships which are
beyond the third civil degree, in which case,
death penalty cannot be imposed on an
accused found guilty of rape. However, a
sister-brother relationship is obviously in the
second civil degree and no other sister-
brother relationship exists in civil law that
falls beyond the third civil degree.
Consequently, it is not necessary in this
case that the Information should specifically
state that the appellant is a relative by
consanguinity within the third civil degree of
the victim. This is an exception to the
requirement enunciated in the Ferolino case.
93
Further, what is required by the Rules is that
"the acts or omissions complained of as
constituting the offense and the qualifying
and aggravating circumstances must be
stated in ordinary and concise language and
not necessarily in the language used in the
statute but in terms sufficient to enable a
person of common understanding to know
what offense is being charged as well as its
qualifying and aggravating circumstances
and for the court to pronounce judgment."94
Perusing the ten (10) Informations for rape,
private complainant AAA was categorically
identified as appellant's younger sister.
Verily, the requirement of allegation as to
relationship was more than satisfied.
78

Testimony of AAA as to her own
age is sufficient evidence.
Appellant argues that in Criminal Case No.
08-1305, no evidence was presented as to
the age of the victim, AAA. This is false. On
the issue of age of the victim, it is enough
that the victim testified on her age vis-a-vis
the time she was raped by appellant.
In People v. Pruna,95 the Court set out
guidelines as to the appreciation of age,
either as an element of the crime or as a
qualifying circumstance. In that case, the
rule was laid out, once and for all, that
although the best evidence to prove the age
of the offended party is an original or
certified true copy of the certificate of live
birth of such party, its presentation into
evidence is not a sine qua non requirement
to prove her age for the appreciation of
minority, either as an element of the crime or
as a qualifying circumstance. The decision
goes on to state that in the absence of (a)
certificate of live birth, (b) authentic
document, or (c) testimony of the victim's
mother or relatives concerning the victim's
age, complainant's testimony will suffice
provided that it is expressly and clearly
admitted by the accused.
In the case at bar, private complainant
categorically disclosed that she was only ten
(10) years old at the time of the first rape in
199596 and fifteen (15) years of age when
she was last raped by appellant.97 Appellant
Ceredon admitted these in a confrontation
between him and private complainant,
witnessed by their mother and other
relatives.98
More than that, not only did the defense fail
to object to complainant's claim to minority
when it was consistently bared during the
trial; the accused, through his plea of guilt,
admitted to the victim's age as alleged in the
informations against him.99 Furthermore,
appellant cannot claim ignorance of the age
of the victim as she is his own sister.100
Anent the Pruna requirement that the court
make a categorical finding as to age, the
RTC had this to say:101
True, AAA was not able to tell the exact
month and date of the first nine incidents but
this is not fatal to her credibility. She is only
about ten (10) years old in 1995 and about
eleven (11) years old in 1996, she being
born on February 18, 1985 and therefore it is
but natural for her not to remember the
dates more so when it has a very negative,
horrifying and traumatic effect and impact on
her life. (Underscoring supplied)
Death penalty repeal and damages
In order that the rape be qualified, there
need only be one qualifying circumstance
present. Here, We have two - relationship
and age. Even assuming that the
circumstance of age had not been duly
proven, it makes no difference as to the final
outcome of this case as the circumstance of
relationship of appellant to the victim cannot
be denied.
As the death penalty has been repealed
through R.A. No. 9346,102 entitled "An Act
Prohibiting the Imposition of Death Penalty
in the Philippines," appellant's sentence
should be downgraded from death to
reclusion perpetua. Section 2 of the said law
pertinently provides:
Section 2. In lieu of the death penalty, the
following shall be imposed:
(a) the penalty of reclusion perpetua, when
the law violated makes use of the
nomenclature of the penalties of the Revised
Penal Code; or
(b) the penalty of life imprisonment, when
the law violated does not make use of the
nomenclature of the penalties of the Revised
Penal Code.
Notwithstanding the reduction of the penalty
imposed on appellant, he is not eligible for
parole following Section 3 of the law, which
reads:
Section 3. Persons convicted of offenses
punished with reclusion perpetua, or whose
sentences will be reduced to reclusion
perpetua, by reason of this Act, shall not be
eligible for parole under Act No. 4103,
otherwise known as the Indeterminate
Sentence Law, as amended.
79

Anent the CA award of damages, civil
indemnity in the amount of P75,000.00 is
correct as each count of rape is qualified by
circumstances which warrant the imposition
of the death penalty.103 With respect to
moral damages, the awarded amount of
P50,000.00 must be increased to
P75,000.00, without need of pleading or
proof of basis.104 The additional amount of
P25,000.00 as exemplary damages to AAA
is likewise justified due to the presence of
the qualifying circumstances of minority and
relationship.105
WHEREFORE, the Court of Appeals
judgment of conviction is AFFIRMED with
the MODIFICATION that the penalty
imposed in each case is hereby changed
from death to reclusion perpetua, without
eligibility for parole. Further, the award of
moral damages to AAA in the amount of
P50,000.00 is increased to P75,000.00.
SO ORDERED.
===
FIRST DIVISION
[G.R. No. 130602. March 15, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. MICHAEL FRONDA y
QUINDARA, ANTONINO FLORA y
SABADO, JR., LAURO MILLAMINA y
CINENSE, JR., accused.
MICHAEL FRONDA y QUINDARA, accused-
appellant.
DECISION
DAVIDE, JR., C.J.:
Accused Michael Fronda (hereafter
FRONDA); Antonino Flora, Jr.; and Lauro
Millamina, Jr., were charged with and tried
for violation of Section 4, Article II of R.A.
No. 6425,[1] as amended, before the
Regional Trial Court of Baguio City, Branch
6, in Criminal Case No. 14570-R under an
information whose accusatory portion reads
as follows:
That on or about the 8th day of October,
1996, in the City of Baguio, Philippines, and
within the jurisdiction of this Honorable
Court, the above-named accused,
conspiring, confederating and mutually
aiding one another, did then and there
wilfully, unlawfully and feloniously sell and
deliver to PO3 June Corpuz and PO2
Ceasary Harry Bedey, members of the
Philippine National Police, Baguio City, one
(1) kilo marijuana leaves wrapped with
newspaper, a prohibited drug, well knowing
that the sale and delivery of such drug is
prohibited without authority of law to do so,
in violation of the aforementioned provisions
of law.
CONTRARY TO LAW.[2]
Accused entered a plea of not guilty upon
arraignment.
At the trial, the prosecution presented as
witnesses PO2 Ceasary Harry Bedey and
PO3 June Corpuz, who arrested the
accused, and Police Senior Inspector Alma
Margarita Villaseor, the forensic chemist.
After its Demurrer to Evidence was denied,
the defense presented as witnesses the
three accused and their landlady, Mrs. Lolita
Flora.
The prosecutions evidence was faithfully
summarized by the Office of the Solicitor
General (OSG) in its Manifestation and
Motion in Lieu of Appellees Brief as follows:
On October 8, 1998, around 12:00 high
noon, Police Officer Cesary Harry Bedey,
Desk Officer at the Baguio City Police Office,
was informed by a "concerned citizen" thru
telephone that somebody was engaged in
selling marijuana at No. 341 A. Bonifacio
Street, Baguio City (TSN, December 11,
1996, p.3). The caller mentioned the names
of Michael Fronda, Antonino Flora, Jr. and
Lauro Millamina, Jr., as the marijuana
dealers (TSN, ibid., p.6).
After referring the matter to his superior,
Officer Bedey was advised to look for Police
Officer June Corpuz who was also a resident
of No. 341 A. Bonifacio Street (TSN, ibid., p.
4).
80
When Officer June Corpuz arrived at the
police station around 8:30 in the evening,
Bedey immediately relayed to him the
information about the drug dealing activities
at the given address (TSN, ibid., pp. 4-5).
Both of them then agreed to verify "the
information" and proceeded to 341 Bonifacio
Street, which was also Corpuz residence
(TSN, ibid., p.5).
There were actually two (2) houses at 341 A.
Bonifacio Street. The first house was the
residence of the land lady, Lolita Flora, while
the second house was a two-storey building
leased to bedspacers. There were 2 rooms
at the first floor and also two rooms at the
second floor. One room at the first floor was
occupied by Fronda, Flora and Millamina
and beside it was another room occupied by
one Gilbert Mugot. At the second floor,
Officer Corpuz occupied the room directly
above that of the accused (TSN, December
3, 1996, pp. 8-9).
To avoid detection, Corpuz then went ahead
of Bedey and a woman companion. Upon
reaching the place, he joined the drinking
session held at the room of Gilbert Mugot
(TSN, December 3, 1996, pp. 4-5, 10).
Meanwhile, Bedey and his woman
companion following Corpuz, proceeded to
the house of the landlady and inquired
where the appellant and his co-accused
resided (TSN, December 3, 1996, pp. 5-6;
TSN, December 11, 1996, p. 5). After Lolita
Flora had pointed to one of the rooms at the
first floor, Bedey proceeded there and
knocked at the door (TSN, December 11,
1996, p.7). Somebody from inside then
pulled the door open half-way and asked,
"What do you want?" (TSN, ibid., pp.
8-9,11,13).
As soon as the door was opened, Bedey
stepped backwards, about 3 to 4 meters
(TSN, December 11, 1996, p.9), and then
asked if he could buy marijuana (TSN, ibid.,
pp.9,13).
Someone answered, "there is," and a square
package wrapped in newspaper about 1 to 2
inches thick, 8 inches in width and 11 inches
long was then handed to Bedey (TSN, ibid.,
pp. 9, 15, 16).
Bedey immediately opened the package a
little, smelled it and determined that the
contents were marijuana (TSN, ibid., p. 20).
At the same time, he asked, "How
much?" (TSN, ibid., pp. 13-18).
When somebody answered "P1,000.00,"
Bedey immediately shouted "positive" (TSN,
ibid., pp. 19-20).
Upon hearing Bedey, officer June Corpuz
immediately rushed towards him from the
next room (TSN, December 3, 1996, p. 11).
He and Bedey then advised/invited the
occupants of the room to come out (TSN,
December 3, 1996, ibid; December 11,
1996, p. 20) Michael Fronda, Lauro
Millamina., Jr., and Antonino Flora, Jr. came
out of the room (TSN, December 11, 1996,
p. 22; December 3, 1996, pp. 11,14, 16-17).
The three were immediately brought to the
police station and charged with selling
marijuana (TSN, December 3, 1996, p. 18;
December 11, 1996, p. 32). Meanwhile, the
brick of marijuana was turned over to the
PNP Crime Laboratory where Alma
Margarita Villaseor, Forensic Chemist,
subjected it to physical, chemical and
confirmatory tests (TSN, December 3, 1996,
p. 38). The package, weighing 1.1
kilograms, was confirmed to be marijuana, a
prohibited drug (TSN, ibid., pp. 38-40,
Exhibit "D").
The accuseds defense is denial. Their
version of the incident was also succinctly
summarized by the OSG in its Manifestation
and Motion in Lieu of Appellees Brief, thus:
[The accused] claimed that they hailed from
Talogtog, Nueva Ecija and were freshmen
students at the University of Baguio (TSN,
February 4, 1997, pp. 13-14; February 6,
1997, p. 2). Since June 1996, they stayed as
bedspacers at the boarding house/
apartment of Mrs. Lolita Flora at No. 341 A.
Bonifacio Street, Baguio City (TSN,
February 4, 1997, p. 3; February 6, 1997,
ibid).
From June 16 to September 30, 1996, only
the three of them occupied a room located at
the first floor of the apartment. However, on
October 1, 1996, one Ramil (Rommel) Oroy
81
from Kapangan, Benguet, was taken in by
Mrs. Lolita Flora as another bedspacer and
stayed with them in their room (TSN,
February 4, 1997, pp. 3-4; February 5, 1997,
p. 2; February 6, 1997, p. 8).
Around 7:00 oclock in the evening of
October 8, 1996, Fronda, Flora and
Millamina came home one after the other
from their respective classes at the
University of Baguio. At the time, Oroy was
inside, talking with two (2) unidentified
visitors. They did not mind Oroy and his
visitors and proceeded to eat their supper.
Thereafter, the three of them went to sleep
(TSN, February 4, 1997, pp. 6-7, 19 24;
February 5, 1997, pp. 9-10; February 6,
1997, pp. 4-6).
They were suddenly awakened when they
heard someone calling their names and
ordering them to go out of their room (TSN,
February 4, 1997, pp. 8-9; February 5, 1997,
p. 4.). As soon as they went out, they were
surprised when they were handcuffed and
brought to the police station for allegedly
dealing in marijuana (TSN, February 4,
1997, pp. 9-12; February 5, 1997, pp. 6-8;
February 6, 1997, pp. 6-7).
Mrs. Lolita Flora confirmed on the stand that,
indeed, on October 8, 1996, appellant
Fronda, Flora and Millamina were sharing
their room with a new boarder, Rommel/
Ramil Oroy.
All the accused vigorously denied having
anything to do with the brick of marijuana
recovered on the night of 8 October 1996,
which they allegedly saw for the first time
only during the trial.[3] FRONDA claimed
that he did not even know what a marijuana
was.[4] Millamina denied that he was
engaged in selling marijuana, and that any
one of them handed the marijuana to PO2
Bedey.[5]
In its Decision of 6 March 1997,[6] the trial
court found the prosecutions evidence
sufficient to prove that the accused
conspired in delivering or dealing in
marijuana. It reasoned that (1) the accused
were literally caught flagrante delicto,
delivering or dealing a brick of marijuana to
PO2 Bedey; (2) only the accused came out
of the room where the brick of marijuana
was obtained; (3) the marijuana was sold
and delivered by the three of them, if not by
one of them; (4) since the accused chose to
cover up for each other, they must have
acted together in dealing in the marijuana;
and (5) notwithstanding the fact that no
money was exchanged, there was a
transaction of the delivery of the marijuana
and the "twin elements of the selling
transaction and the corpus delicti were
present to uphold a conviction under Section
4, Article II of the Dangerous Drugs Act, as
amended."
The trial court did not find credible accuseds
claim that they were mere students, since
their classcards, enrollment or registration
papers, or even their teachers and
classmates were not presented. It dismissed
as concocted and fabricated the defenses
story that a fourth bedspacer named
Rommel Oroy/Ramil Uroy was inside the
room of the accused with two unidentified
visitors in the night of 8 October 1996 when
the marijuana was obtained by PO2 Bedey,
considering that PO3 Corpuz testified
categorically that only the three accused
came out of the room as occupants. If
indeed Ramil Oroy and his two unidentified
visitors were inside the room on that
occasion, they could not have escaped the
attention of the policemen, there being only
one door to the room and the two policemen
were outside that door when they asked the
occupants to come out. Besides, when
caught, the accused did not tell the police
that there were other occupants in the room.
The Court disbelieved Lolita Floras
corroborative testimony that a certain Ramil
Oroy was also a bedspacer in that room and
considered it as a last minute attempt on her
part to help out the three accused to create
a doubt on who were inside the room at the
time.
The trial court thus convicted all the accused
of violation of Republic Act No. 6425, as
amended, and sentenced them to suffer the
penalty of reclusion perpetua and to pay a
fine of P500,000, plus costs.
On 11 March 1997, all the three accused
filed a Notice of Appeal.[7] However, two
days later, Flora and Millamina filed a Motion
82
for Suspension of Sentence[8] under the
provision of P.D. No. 603, as amended.[9]
Pending its resolution, the trial court issued
an Order[10] holding in abeyance Flora and
Millaminas Notice of Appeal until their
motion was resolved. It also stated that
FRONDAs appeal would be forwarded to us
only after the resolution of his co-accuseds
motion for suspension of sentence.
During the hearing of the motion, the trial
court informed Atty. Jaime Ulep, Flora and
Millaminas new counsel, that should the
Supreme Court ultimately rule that the
movants were not entitled to a suspended
sentence, they might lose their right to
appeal because by their move to avail
themselves of the benefit of the suspended
sentence, they could be deemed to have
withdrawn their appeal and not to have
disputed the trial courts finding of guilt. Thus,
Flora and Millamina were required to
manifest to the court whether
(1) they are pursuing only the appeal of the
decision in this case and therefore their
appeal should be forwarded immediately to
the Supreme Court and that they are
withdrawing their Motion for Suspension of
Sentence which shall no longer be resolved
by the court; or
(2) they are pursuing only the motion to
suspend sentence and therefore
withdrawing their notice of appeal in which
case the court will resolve the Motion to
Suspend Sentence immediately; or
(3) they are pursuing their motion for a
suspension of sentence which should
therefore be resolved by the court and in the
event the accused minors do not qualify,
their appeal of the decision of the court
convicting them should nevertheless be
forwarded to the Supreme Court as they are
also pursuing the appeal.[11]
In his Manifestation of 26 May 1997 Atty.
Ulep stated that accused Flora and
Millamina were "pursuing their motion for a
suspension of sentence and/or for the
suspension of further proceedings under
Article 192 of P.D. 603, as amended"; and in
the possibility that they would not qualify,
they would file a petition to be admitted to
bail and to avail themselves of their right to
appeal the decision.[12]
On 4 June 1997, the trial court granted Flora
and Millaminas motion for suspension of
sentence[13] and amended its decision by
(1) reducing their penalty to an
indeterminate penalty ranging from 6 years
and 1 day of prision mayor as minimum to
14 years, 8 months and 1 day of reclusion
temporal as maximum on ground of the
privileged mitigating circumstance of
minority, both being below 18 years of age at
the time the offense was committed; (2)
suspending their sentence for two years
from 4 June 1997; (3) releasing Flora and
Millamina and committing them to the
custody of their parents and grandparents,
respectively, with the supervision of the
Department of Social Welfare and
Development (DSWD) in Nueva Ecija; and
(4) stating that should they behave properly,
they would be discharged and their case
would be dismissed; otherwise, they would
be returned to the court for pronouncement
of their penalty.
In its Order of 9 June 1997, the trial court
forwarded to us the records of the case "for
purposes of the appeal of Michael Fronda
only,"[14] and ordered FRONDAs
commitment to the Bureau of Corrections in
Muntinlupa City for preventive imprisonment
pending appeal.[15]
In our Resolution of 19 January 1998 we
accepted not only the appeal of FRONDA,
but also those of Flora and Millamina. The
acceptance of the appeals of Flora and
Millamina was erroneous because they did
not appeal from the Amended Decision.
Consequently, we shall deal only with
FRONDAs appeal.
FRONDA alleges that (a) the trial court erred
in convicting him solely on the basis of
circumstantial evidence, and in totally
disregarding the evidence for the defense;
(b) the prosecutions evidence is insufficient
to warrant a conviction; and (c) there being
no factual or legal basis, the decision is a
complete nullity.
For the State, the Office of the Solicitor
General (OSG) filed a Manifestation and
Motion in Lieu of Appellees Brief, submitting
83
that the prosecutions evidence fails to meet
the quantum of evidence required to
overcome the constitutional presumption of
innocence; and thus, regardless of the
supposed weakness of their defense, all the
accused are entitled to acquittal. It therefore
recommends the acquittal not only of
appellant FRONDA, but also of his co-
accused, Flora and Millamina.
In every criminal prosecution, the identity of
the offender or offenders, like the crime
itself, must be established by proof beyond
reasonable doubt. Identification which does
not preclude a reasonable possibility of
mistake cannot be accorded any evidentiary
force.[16] Thus, where eyewitnesses
contradict themselves on the identity of the
malefactor, the element of reasonable doubt
is injected and cannot be lightly disregarded.
[17] In the absence of proof beyond
reasonable doubt as to the identity of the
culprit, the accuseds constitutional right of
presumption of innocence until the contrary
is proved is not overcome, and he is entitled
to an acquittal[18] even though his
innocence may be doubted.[19] The
constitutional presumption of innocence
guaranteed to every individual is of primary
importance, and the conviction of the
accused must rest not on the weakness of
the defense but on the strength of the
evidence for the prosecution.[20]
In the instant case, as correctly pointed out
by both FRONDA and the OSG, the trial
courts finding that FRONDA and the other
accused were "literally caught flagrante
delicto, delivering or dealing in a brick of
marijuana to Police Officer Bedey" is not
supported by the evidence adduced by the
prosecution. Flagrante delicto means "[i]n
the very act of committing the crime."[21] To
be caught flagrante delicto, therefore,
necessarily implies positive identification by
the eyewitness or eyewitnesses. Such is a
"direct evidence" of culpability, which is "that
which proves the fact in dispute without the
aid of any inference or presumption"[22] in
contrast to circumstantial evidence which is
"the proof of facts from which, taken
collectively, the existence of the particular
fact in dispute may be inferred as a
necessary or probable consequence."[23]
Circumstantial evidence, however, is not a
weaker form of evidence vis--vis direct
evidence, for our rules make no distinction
between direct evidence of fact and
evidence of circumstances from which the
existence of a fact may be inferred.[24] No
greater degree of certainty is required when
the evidence is circumstantial than when it is
direct; for in either case, the trier of fact must
be convinced beyond reasonable doubt of
the guilt of the accused.[25]
In this case, as pointed out by the parties,
neither PO2 Bedey, who transacted with and
obtained the brick of marijuana from
"somebody" in the room at 341 A. Bonifacio
St., Baguio City, nor PO3 Corpuz, who
rushed to the scene upon hearing Bedey
shout "Positive," could identify the person or
persons Bedey was talking to and dealing
with prior to and at the time the brick of
marijuana was obtained. Thus, the trial court
had to resort to inference that since Bedey
obtained the brick of marijuana from
"somebody" from the same room occupied
by FRONDA and the other accused who,
when their names were called, "volunteered"
as occupants of the room, then one or some
of them must be responsible for selling and
delivering to Bedey the marijuana.
From the testimony of PO2 Bedey on the
circumstances resulting in the delivery of a
brick of marijuana, it is clear that none of the
accused was caught flagrante delicto selling
or delivering marijuana. Due to the darkness
and lack of illumination inside and outside
the door where the transaction took place,
Bedey could not identify the person he was
dealing with. He was not even sure how
many person or persons he was talking to
that night in question. Significantly, he
admitted that there were several persons
who came out of the room other than the
accused. Like PO3 Corpuz, he did not even
bother to enter the room to check whether
there were persons other than the accused.
When Bedey was given the final chance to
identify who among the three accused talked
to him and handed him the marijuana, he
could not do so.[26]
PO3 Corpuz, who was in another room
when Bedey obtained the marijuana, neither
witnessed the transaction leading to the
delivery of marijuana. His testimony that only
the accused came out of the room was
84
materially contradicted by Bedeys testimony
that besides the accused, there were other
persons who came out of the room.
Moreover, Corpuz also admitted during
cross examination that, like Bedey, he did
not enter the room of the accused and thus
could not definitely rule out the possibility
that there were other persons in the room
aside from the three.[27]
In view of the admissions by the police
officers who conducted the "operation" that
they could not identify the person or persons
who transacted with Bedey and delivered
the brick of marijuana, and that they did not
bother to enter the room where the
marijuana was obtained, there is no moral
certainty that FRONDA and the other
accused were responsible for the delivery of
marijuana to Bedey.
Indeed, far from having been caught
flagrante delicto, the evidence against
FRONDA and his co-accused is, at most,
only circumstantial in nature. Where the
evidence is purely circumstantial, there
should be an even greater need than usual
to apply with vigor the rule that the
prosecution cannot depend on the weakness
of the defense and that any conviction must
rest on nothing less than a moral certainty of
guilt of the accused.[28] Under the Rules of
Court, circumstantial evidence would be
sufficient for conviction if the following
concur: (a) there is more than one
circumstance; (b) the facts from which the
inferences are derived are proved; and (c)
the combination of all the circumstances is
such as to produce a conviction beyond
reasonable doubt. Or, as jurisprudentially
formulated, a judgment of conviction based
on circumstantial evidence can be upheld
only if the circumstances proven constitute
an unbroken chain which leads to one fair
and reasonable conclusion pointing to the
accused, to the exclusion of all others, as
the guilty person; i.e., the circumstances
proven must be consistent with each other
and consistent with the hypothesis that the
accused is guilty.[29]
The only circumstantial evidence clearly
established by the prosecution against the
accused are the following: (1) the fact that a
brick of marijuana was obtained by Bedey
from "somebody" inside the room which the
appellants were also occupying; and (2)
when called out, the accused "volunteered"
to come out of the room. The concordant
combination and cumulative effect of these
circumstances do not satisfy the
requirements of Section 4, Rule 133 of the
Rules of Court. They do not conclusively
establish the guilt of the accused beyond
any reasonable doubt. They do not exclude
the possibility that other persons might have
been the ones who transacted with Bedey
and handed him the marijuana principally
because the police officers failed to seal off
the area from other curious boarders and to
enter the room to ensure that no other
persons were still inside that room. Notably,
Bedey testified that there were other
persons besides the accused who came out
of the room.
The foregoing disquisitions render
unnecessary a discussion on the trial courts
finding of conspiracy.
A final word on the fate of Flora and
Millamina is in order. We disagree with the
view of the trial court that the application and
grant of Flora and Millaminas suspension of
sentence presupposed their acceptance of
the finding of guilt against them and
constituted a waiver of the right to appeal. It
must be emphasized that an application for
suspension of sentence under the provisions
of Article 192 of the Child and Youth Welfare
Code is not the same as an application for
probation, which is deemed a waiver of their
right to appeal.[30] There is nothing in the
said Code which prohibits a youthful
offender from appealing his conviction after
he proves to be incorrigible and the trial
court proceeds to pronounce its judgment of
guilty and sentence against him.[31] In fact,
as amended by P.D. No. 1179, Article 197 of
the Code expressly provides that the
convicted offender may still apply for
probation under the provisions of P. D. No.
968. Conversely, the accused may pursue
his appeal if he chooses not to avail himself
of the benefits of probation. Although the
right to appeal is a statutory right, it is an
essential part of the judicial system. Courts
should proceed with caution so as not to
deprive a party of this right; they should,
instead, afford every party-litigant the
85
amplest opportunity for the proper and just
disposition of his cause, free from the
constraints of technicalities.[32]
At any rate, even if Flora and Millamina did
not pursue their appeal, the acquittal of
FRONDA and our finding that the
prosecution has not established the guilt of
all the accused beyond reasonable doubt
must, perforce, benefit Flora and Millamina.
[33] First, neither the charge of conspiracy
nor their individual liability was proved
beyond reasonable doubt. Second, under
Section 11 (a), Rule 122 of the Rules on
Criminal Procedure, an "[a]ppeal taken by
one or more of several accused shall not
affect those who did not appeal, except in so
far as the judgment of the appellate court is
favorable and applicable to the latter." After
all, the grant of suspended sentence to
accused Flora and Millamina does not mean
that they are already exonerated from the
crime charged; only that the pronouncement
of judgment and the service of sentence are
suspended[34] until their return to court for
final disposition depending on their conduct
and the progress of rehabilitation.[35]
Should the criminal case against them be
dismissed based on their observance of
good conduct, it would only mean that they
would suffer no penalty.[36]
WHEREFORE, the Amended Decision of the
RTC, Baguio City, Branch 6, in Criminal
Case No. 14570-R is hereby REVERSED. A
new judgment is hereby rendered
ACQUITTING MICHAEL FRONDA y
QUINDARA and his co-accused ANTONINO Promulgated:
FLORA y SABADO, JR., and LAURO
MILLAMINA y CINENSE, JR. The Director of July 23, 2008
the Bureau of Corrections is directed to
immediately release from confinement x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
MICHAEL FRONDA unless his further - - - - - - - - - - - - - - - - - - -x
detention is warranted by virtue of any lawful DECISION
cause, and to make a report of such release
QUISUMBING, J.:
within five (5) days from notice hereof.
This petition for review assails the
Decision[1] dated April 19, 2005 and
Costs de oficio.
Resolution[2] dated June 14, 2005, of the
Court of Appeals in CA-G.R. SP No. 86977
SO ORDERED.
which had respectively dismissed Michael
Paduas petition for certiorari and denied his
===
motion for reconsideration. Paduas petition
for certiorari before the Court of Appeals
SECOND DIVISION
assailed the Orders dated May 11, 2004[3]
and July 28, 2004[4] of the Regional Trial
MICHAEL PADUA, Court (RTC), Branch 168, Pasig City, which
Petitioner, had denied his petition for probation.
The facts, culled from the records, are as
- versus - follows:
On June 16, 2003, petitioner Michael Padua
PEOPLE OF THE PHILIPPINES, and Edgar Allan Ubalde were charged
Respondent. before the RTC, Branch 168, Pasig City of
G.R. No. 168546 violating Section 5,[5] Article II of Republic
Act No. 9165,[6] otherwise known as the
Present: Comprehensive Dangerous Drugs Act of
2002, for selling dangerous drugs.[7] The
QUISUMBING, J., Chairperson, Information reads:
CARPIO MORALES, The Prosecution, through the undersigned
Public Prosecutor, charges Edgar Allan
TINGA,
Ubalde y Velchez a.k.a. Allan and Michael
VELASCO, JR., and
Padua y Tordel a.k.a. Mike, with the crime of
BRION, JJ. violation of Sec. 5, Art. II, Republic Act No.
86
9165 in relation to R.A. [No.] 8369, Sec. 5
par. (a) and (i), committed as follows:
On or about June 6, 2003, in Pasig City, and
within the jurisdiction of this Honorable
Court, the accused, Edgar Allan Ubalde y
Velchez and Michael Padua y Tordel, a
minor, seventeen (17) years old, conspiring
and confederating together and both of them
mutually helping and aiding one another, not
being lawfully authorized to sell any
dangerous drug, did then and there willfully,
unlawfully and feloniously sell, deliver and
give away to PO1 Roland A. Panis, a police
poseur-buyer, one (1) folded newsprint
containing 4.86 grams of dried marijuana
fruiting tops, which was found positive to the
tests for marijuana, a dangerous drug, in
violation of the said law.
Contrary to law.[8]
When arraigned on October 13, 2003,
Padua, assisted by his counsel de oficio,
entered a plea of not guilty.[9]
During the pre-trial conference on February
2, 2004, however, Paduas counsel
manifested that his client was willing to
withdraw his plea of not guilty and enter a
plea of guilty to avail of the benefits granted
to first-time offenders under Section 70[10]
of Rep. Act No. 9165. The prosecutor
interposed no objection.[11] Thus, the RTC
on the same date issued an Order[12]
stating that the former plea of Padua of not
guilty was considered withdrawn. Padua was
re-arraigned and pleaded guilty. Hence, in a
Decision[13] dated February 6, 2004, the
RTC found Padua guilty of the crime
charged:
In view of the foregoing, the Court finds
accused Michael Padua y Tordel guilty of
[v]iolation of Sec. 5 Art. II of R.A. No. 9165 in
relation to R.A. No. 8369 Sec. 5 par. (a) and
(i) thereof, and therefore, sentences him to
suffer an indeterminate sentence of six (6)
years and one (1) day of Prision Mayor as
minimum to seventeen (17) years and four
(4) months of reclusion temporal as
maximum and a fine of Five Hundred
Thousand Pesos (P500,000.00).
No subsidiary imprisonment, however, shall
be imposed should [the] accused fail to pay
the fine pursuant to Art. 39 par. 3 of the
Revised Penal Code.
SO ORDERED.[14]
Padua subsequently filed a Petition for
Probation[15] dated February 10, 2004
alleging that he is a minor and a first-time
offender who desires to avail of the benefits
of probation under Presidential Decree No.
968[16] (P.D. No. 968), otherwise known as
The Probation Law of 1976 and Section 70
of Rep. Act No. 9165. He further alleged that
he possesses all the qualifications and none
of the disqualifications under the said laws.
The RTC in an Order[17] dated February 10,
2004 directed the Probation Officer of Pasig
City to conduct a Post-Sentence
Investigation and submit a report and
recommendation within 60 days from receipt
of the order. The City Prosecutor was also
directed to submit his comment on the said
petition within five days from receipt of the
order.
On April 6, 2004, Chief Probation and Parole
Officer Josefina J. Pasana submitted a Post-
Sentence Investigation Report to the RTC
recommending that Padua be placed on
probation.[18]
However, on May 11, 2004, public
respondent Pairing Judge Agnes Reyes-
Carpio issued an Order denying the Petition
for Probation on the ground that under
Section 24[19] of Rep. Act No. 9165, any
person convicted of drug trafficking cannot
avail of the privilege granted by the
Probation Law. The court ruled thus:
Before this Court now is the Post-Sentence
Investigation Report (PSIR) on minor
Michael Padua y Tordel prepared by Senior
Parole and Probation Officer Teodoro
Villaverde and submitted by the Chief of the
Pasig City Parole and Probation Office,
Josefina J. Pasana.
In the aforesaid PSIR, Senior PPO Teodoro
Villaverde recommended that minor Michael
Padua y Tordel be placed on probation,
anchoring his recommendation on Articles
189 and 192 of P.D. 603, otherwise known
as the Child and Welfare Code, as
amended, which deal with the suspension of
sentence and commitment of youthful
offender. Such articles, therefore, do not find
application in this case, the matter before
the Court being an application for probation
by minor Michael Padua y Tordel and not the
suspension of his sentence.
87
On the other hand, Section 70 is under
Article VIII of R.A. 9165 which deals with the
Program for Treatment and Rehabilitation of
Drug Dependents. Sections 54 to 76, all
under Article VIII of R.A. 9165 specifically
refer to violations of either Section 15 or
Section 11. Nowhere in Article VIII was
[v]iolation of Section 5 ever mentioned.
More importantly, while the provisions of
R.A. 9165, particularly Section 70 thereof
deals with Probation or Community Service
for First- Time Minor Offender in Lieu of
Imprisonment, the Court is of the view and
so holds that minor Michael Padua y Tordel
who was charged and convicted of violating
Section 5, Article II, R.A. 9165, cannot avail
of probation under said section in view of the
provision of Section 24 which is hereunder
quoted:
Sec. 24. Non-Applicability of the Probation
Law for Drug Traffickers and Pushers. Any
person convicted for drug trafficking or
pushing under this Act, regardless of the
penalty imposed by the Court, cannot avail
of the privilege granted by the Probation Law
or Presidential Decree No. 968, as
amended. (underlining supplied)
WHEREFORE, premises considered, the
Petition for Probation filed by Michael Padua
y Tord[e]l should be, as it is hereby DENIED.
SO ORDERED.[20]
Padua filed a motion for reconsideration of
the order but the same was denied on July
28, 2004. He filed a petition for certiorari
under Rule 65 with the Court of Appeals
assailing the order, but the Court of Appeals,
in a Decision dated April 19, 2005,
dismissed his petition. The dispositive
portion of the decision reads:
WHEREFORE, in view of the foregoing, the
petition is hereby DENIED for lack of merit
and ordered DISMISSED.
SO ORDERED.[21]
Padua filed a motion for reconsideration of
the Court of Appeals decision but it was
denied. Hence, this petition where he raises
the following issues:
I.
WHETHER OR NOT THE COURT OF
APPEALS ERRED IN AFFIRMING THE
DENIAL OF THE PETITION FOR
PROBATION WHICH DEPRIVED
PETITIONERS RIGHT AS A MINOR
UNDER ADMINISTRATIVE ORDER NO.
[02-1-18-SC] OTHERWISE KNOWN AS
[THE] RULE ON JUVENILES IN CONFLICT
WITH THE LAW.
II.
WHETHER OR NOT [THE] ACCUSED[S]
RIGHT [TO BE RELEASED UNDER
RECOGNIZANCE] HAS BEEN VIOLATED
OR DEPRIVED IN THE LIGHT OF R.A.
9344 OTHERWISE KNOWN AS AN ACT
ESTABLISHING A COMPREHENSIVE
JUVENILE JUSTICE AND WELFARE
SYSTEM, CREATING THE JUVENILE
JUSTICE AND WELFARE COUNCIL
UNDER DEPARTMENT OF JUSTICE
APPROPRIATING FUNDS THEREFOR
AND OTHER PURPOSES.[22]
The Office of the Solicitor General (OSG),
representing public respondent, opted to
adopt its Comment[23] as its Memorandum.
In its Comment, the OSG countered that
I.
THE TRIAL COURT AND THE COURT OF
APPEALS HAVE LEGAL BASIS IN
APPLYING SECTION 24, ARTICLE II OF
R.A. 9165 INSTEAD OF SECTION 70,
ARTICLE VIII OF THE SAME LAW.
II.
SECTION 32 OF A.M. NO. 02-1-18-SC
OTHERWISE KNOWN AS THE RULE ON
JUVENILES IN CONFLICT WITH THE LAW
HAS NO APPLICATION TO THE INSTANT
CASE.[24]
Simply, the issues are: (1) Did the Court of
Appeals err in dismissing Paduas petition for
certiorari assailing the trial courts order
denying his petition for probation? (2) Was
Paduas right under Rep. Act No. 9344,[25]
the Juvenile Justice and Welfare Act of
2006, violated? and (3) Does Section 32[26]
of A.M. No. 02-1-18-SC otherwise known as
the Rule on Juveniles in Conflict with the
Law have application in this case?
As to the first issue, we rule that the Court of
Appeals did not err in dismissing Paduas
petition for certiorari.
For certiorari to prosper, the following
requisites must concur: (1) the writ is
directed against a tribunal, a board or any
officer exercising judicial or quasi-judicial
functions; (2) such tribunal, board or officer
has acted without or in excess of jurisdiction,
or with grave abuse of discretion amounting
to lack or excess of jurisdiction; and (3) there
is no appeal or any plain, speedy and
88
adequate remedy in the ordinary course of
law.[27]
Without jurisdiction means that the court
acted with absolute lack of authority. There
is excess of jurisdiction when the court
transcends its power or acts without any
statutory authority. Grave abuse of discretion
implies such capricious and whimsical
exercise of judgment as to be equivalent to
lack or excess of jurisdiction. In other words,
power is exercised in an arbitrary or despotic
manner by reason of passion, prejudice, or
personal hostility, and such exercise is so
patent or so gross as to amount to an
evasion of a positive duty or to a virtual
refusal either to perform the duty enjoined or
to act at all in contemplation of law.[28]
A review of the orders of the RTC denying
Paduas petition for probation shows that the
RTC neither acted without jurisdiction nor
with grave abuse of discretion because it
merely applied the law and adhered to
principles of statutory construction in
denying Paduas petition for probation.
Padua was charged and convicted for
violation of Section 5, Article II of Rep. Act
No. 9165 for selling dangerous drugs. It is
clear under Section 24 of Rep. Act No. 9165
that any person convicted of drug trafficking
cannot avail of the privilege of probation, to
wit:
SEC. 24. Non-Applicability of the Probation
Law for Drug Traffickers and Pushers. Any
person convicted for drug trafficking or
pushing under this Act, regardless of the
penalty imposed by the Court, cannot avail
of the privilege granted by the Probation Law
or Presidential Decree No. 968, as
amended. (Emphasis supplied.)
The law is clear and leaves no room for
interpretation. Any person convicted for drug
trafficking or pushing, regardless of the
penalty imposed, cannot avail of the
privilege granted by the Probation Law or
P.D. No. 968. The elementary rule in
statutory construction is that when the words
and phrases of the statute are clear and
unequivocal, their meaning must be
determined from the language employed
and the statute must be taken to mean
exactly what it says.[29] If a statute is clear,
plain and free from ambiguity, it must be
given its literal meaning and applied without
attempted interpretation. This is what is
known as the plain-meaning rule or verba
legis. It is expressed in the maxim, index
animi sermo, or speech is the index of
intention.[30] Furthermore, there is the
maxim verba legis non est recedendum, or
from the words of a statute there should be
no departure.[31]
Moreover, the Court of Appeals correctly
pointed out that the intention of the
legislators in Section 24 of Rep. Act No.
9165 is to provide stiffer and harsher
punishment for those persons convicted of
drug trafficking or pushing while extending a
sympathetic and magnanimous hand in
Section 70 to drug dependents who are
found guilty of violation of Sections 11[32]
and 15[33] of the Act. The law considers the
users and possessors of illegal drugs as
victims while the drug traffickers and
pushers as predators. Hence, while drug
traffickers and pushers, like Padua, are
categorically disqualified from availing the
law on probation, youthful drug dependents,
users and possessors alike, are given the
chance to mend their ways.[34] The Court of
Appeals also correctly stated that had it
been the intention of the legislators to
exempt from the application of Section 24
the drug traffickers and pushers who are
minors and first time offenders, the law could
have easily declared so.[35]
The law indeed appears strict and harsh
against drug traffickers and drug pushers
while protective of drug users. To illustrate, a
person arrested for using illegal or
dangerous drugs is meted only a penalty of
six months rehabilitation in a government
center, as minimum, for the first offense
under Section 15 of Rep. Act No. 9165,
while a person charged and convicted of
selling dangerous drugs shall suffer life
imprisonment to death and a fine ranging
from Five Hundred Thousand Pesos
(P500,000.00) to Ten Million Pesos
(P10,000,000.00) under Section 5, Rep. Act
No. 9165.
As for the second and third issues, Padua
cannot argue that his right under Rep. Act
No. 9344, the Juvenile Justice and Welfare
Act of 2006 was violated. Nor can he argue
that Section 32 of A.M. No. 02-1-18-SC
otherwise known as the Rule on Juveniles in
Conflict with the Law has application in this
case. Section 68[36] of Rep. Act No. 9344
89
and Section 32 of A.M. No. 02-1-18-SC both
pertain to suspension of sentence and not
probation.
Furthermore, suspension of sentence under
Section 38[37] of Rep. Act No. 9344 could
no longer be retroactively applied for
petitioners benefit. Section 38 of Rep. Act
No. 9344 provides that once a child under
18 years of age is found guilty of the offense
charged, instead of pronouncing the
judgment of conviction, the court shall place
the child in conflict with the law under
suspended sentence. Section 40[38] of Rep.
Act No. 9344, however, provides that once
the child reaches 18 years of age, the court
shall determine whether to discharge the
child, order execution of sentence, or extend
the suspended sentence for a certain
specified period or until the child reaches the
maximum age of 21 years. Petitioner has
already reached 21 years of age or over and
thus, could no longer be considered a
child[39] for purposes of applying Rep. Act
9344. Thus, the application of Sections 38
and 40 appears moot and academic as far
as his case is concerned.
WHEREFORE, the petition is DENIED. The
assailed Decision dated April 19, 2005 and
the Resolution dated June 14, 2005 of the
Court of Appeals are AFFIRMED.
SO ORDERED.
===
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 193507 January 30, 2013
PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee,
vs.
REY MONTICALVO y MAGNO, Accused-
Appellant.
DECISION
PEREZ, J.:
This is an appeal from the Decision1 of the
Court of Appeals in CA-G.R. CR-HC No.
00457 dated 3 December 2009 affirming in
toto the Decision2 of Branch 19 of the
Regional Trial Court (RTC) of Catarman,
Northern Samar, in Criminal Case No.
C-3460 dated 18 October 2005 finding
herein appellant Rey Monticalvo y Magno
guilty beyond reasonable doubt of the crime
of rape of a demented person committed
against AAA,3 thereby imposing upon him
the penalty of reclusion perpetua and
ordering him to pay P50,000.00 as civil
indemnity, P50,000.00 as moral damages
and P25,000.00 as exemplary damages.
Appellant Rey Monticalvo y Magno was
charged with raping AAA in an Information4
dated 30 April 2003, the accusatory portion
of which reads:
That on or about the 9th day of December
2002 at about 7:00 o’clock in the evening in
Bgy. XXX, Municipality of XXX, Province of
XXX, Philippines and within the jurisdiction
of this Honorable Court, the above-named
appellant, actuated by lust and with lewd
design, with force and intimidation, did, then
and there, willfully, unlawfully and feloniously
have carnal knowledge with AAA, 12 years
old and is suffering from mental disorder or
is demented or has mental disability, without
the consent and against the will of said
victim.5 [Emphasis supplied].
On arraignment, appellant, with the
assistance of counsel de oficio, pleaded
NOT GUILTY6 to the crime charged.
At the pre-trial conference, the prosecution
and the defense failed to make any
stipulation of facts.7 The pre-trial conference
was then terminated and trial on the merits
thereafter ensued.
The prosecution presented the following
witnesses: (1) AAA, the private offended
party; (2) BBB, mother of AAA; (3) Analiza
Pait (Analiza), neighbor and friend of AAA;
(4) Dr. Jesus Emmanuel Nochete (Dr.
Nochete), Medical Officer IV, Northern
Samar Provincial Hospital; and (5) Dr.
Vincent Anthony M. Belicena (Dr. Belicena),
Medical Specialist II, Northern
SamarProvincial Hospital. Their testimonies
established the following facts:
90
AAA is a mental retardate and was 12 years
and 11 months old at the time of the rape
incident.8 She and appellant, who was then
17 years old,9 are neighbors − their
respective houses are adjoining each other.
10
In the afternoon of 9 December 2002, AAA
and her friend, Analiza, were in front of the
sari-sari store of AAA’s mother, BBB, while
appellant was inside the fence of their house
adjacent to the said sari-sari store. Shortly,
thereafter, appellant invited AAA to go with
him to the kiln at the back of their house.
AAA acceded and went ahead.11
Upon seeing appellant and AAA going to the
kiln, Analiza, pretending to look for her one
peso coin, followed them until she reached a
papaya tree located three and a half meters
away from the place. Analiza hid under the
papaya tree and from there she saw
appellant undress AAA by removing the
latter’s shorts and panty. Appellant, however,
glanced and saw Analiza. Frightened,
Analiza ran away and went back to the sari-
sari store of BBB without telling BBB what
she saw.12
Appellant proceeded to satisfy his bestial
desire. After undressing AAA, appellant
made her lie down. He then placed himself
on top of AAA and made push and pull
movements. Afterwards, appellant stopped,
allowed AAA to sit down for a while and then
sent her home.13
When AAA arrived at their house around
7:30 p.m., she was asked by her mother,
BBB, where she came from and why she
came home late. AAA replied that she was at
the back of their house as appellant brought
her there and had sexual intercourse with
her.14
The following day, BBB brought AAA to the
police station and then to the Northern
Samar Provincial Hospital where AAA was
examined by Dr. Nochete.15 The medical
examination yielded the following:
The findings are:
= Confluent abrasion 1 x 1 inches, 2 inches
below the umbilicus.
Genitalia Exam:
= Admits 1 finger with ease.
= (-) vulvar swelling, (-) erythema.
= (+) complete healed hymenal laceration at
5 o’clock, 7 o’clock & 10 o’clock position.
Gram Stain Result: Negative for
spermatozoa.16
Dr. Nochete explained that AAA could have
possibly sustained those complete healed
hymenal lacerations more than a month prior
to the date of the examination. He also
clarified that even though AAA has no fresh
hymenal laceration it does not necessarily
mean that no sexual intercourse was
committed on her on 9 December 2002. It is
possible that AAA did not sustain any fresh
hymenal laceration because the vaginal
canal has become loose. He did not also
find any trace of spermatozoa on AAA’s
vagina, its presence being dependent on
whether the appellant did ejaculate or not.17
AAA was also examined by Dr. Belicena, a
Psychiatrist at the Northern Samar
Provincial Hospital, who found that AAA is
suffering from moderate to severe mental
retardation, meaning, AAA is suffering from
the specific form of below average
intelligence that has a low reproduction
functioning resulting in impaired functioning.
This finding was obtained through mental
examination and actual interview of AAA. Dr.
Belicena, however, recommended a full
battery of psychological testing to determine
AAA’s exact mental age.18 Dr. Belicena’s
finding was reduced into writing as
evidenced by a Medical Certificate19 dated
18 May 2004.
For its part, the defense offered the
testimonies of (1) Pio Campos (Pio),
neighbor and friend of appellant; (2) Cesar
Monticalvo (Cesar), appellant’s father; (3)
Alexander Sanico (Alexander), Local Civil
Registrar of Bobon, Northern Samar; and (4)
appellant, who invoked the defense of denial
and alibi to exonerate himself from the crime
charged.
91
Appellant denied having raped AAA. He
claimed that on 9 December 2002, at around
1:00 p.m., he, together with Pio and a
certain Dinnes Samson, was having a
drinking spree in the house of one Adolfo
Congayao (Adolfo). They finished drinking at
around 6:00 p.m. As he was too drunk, Pio
assisted him in going home. He went to
sleep and woke up only at 12:00 midnight as
he needed to urinate. He went back to sleep
and woke up at 6:00 a.m. of the following
day, i.e., 10 December 2002. He was
surprised that AAA charged him with rape.
He was then arrested at around 3:00 p.m. of
10 December 2002.20
Appellant disclosed, however, that the house
of Adolfo, where they had their drinking
spree, is more or less six (6) meters away
from the house of AAA. In fact, he could still
see the house of AAA even when he was in
the house of Adolfo. He similarly admitted
that he knew very well that AAA is suffering
from mental abnormalities. He also divulged
that he asked Pio to testify on his behalf.21
Appellant’s testimony was corroborated on
all material points by Pio and his father,
Cesar, who also admitted that he personally
knew AAA as she is their neighbor. Cesar
also knew that AAA is suffering from mental
disorder.22 Both Pio and Cesar confirmed
that on 9 December 2002, they brought
appellant to his bedroom and let him sleep
there because he was too drunk. Thereafter,
Pio and Cesar engaged in a drinking spree
inside the latter’s house, particularly at the
kitchen that is more than two (2) meters
away from appellant’s bedroom, which
lasted until 11:00 p.m. Pio and Cesar
likewise stated that there was no moment
that appellant went out of his bedroom since
the time they brought him there.23
Alexander, another defense witness,
presented appellant’s Certificate of Live
Birth24 to prove that the latter was only 17
years old during the commission of the
crime, i.e., 9 December 2002.25
The trial court, convinced about the merits of
the prosecution’s case rendered a Decision
on 18 October 2005, finding the appellant
guilty beyond reasonable doubt of the crime
of rape of a demented person and
sentenced him to an imprisonment term of
reclusion perpetua and ordered him to
indemnify AAA in the amount of P50,000.00
as civil indemnity, P50,000.00 as moral
damages and P25,000.00 as exemplary
damages.
On appeal, the following errors were
assigned:
I.
THE TRIAL COURT GRAVELY ERRED IN
CONVICTING THE APPELLANT FOR THE
CRIME OF RAPE OF A DEMENTED
PERSON DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT
BEYOND REASONABLE DOUBT.
II.
THE TRIAL COURT FAILED TO
APPRECIATE APPELLANT’S AGE, BEING
A MINOR, ATTHE TIME OF THE
COMMISSION OF THE CRIME.
III.
THE TRIAL COURT FAILED TO IMPOSE
THE PROPER PENALTY.26
The Court of Appeals rendered the assailed
Decision on 3 December 2009 affirming in
toto the trial court’s Decision dated 18
October 2005.
Hence, this appeal.
Appellant contends that the prosecution
failed to prove his guilt beyond reasonable
doubt as the testimonies of AAA, BBB,
Analiza and Dr. Nochete were replete with
inconsistencies and improbabilities. Firstly,
while the Information stated that appellant
raped AAA on or about the 9th day of
December 2002 at around 7:00 p.m., Analiza
testified that it was in the afternoon of the
same day when she saw and heard
appellant calling AAA to go to the kiln at the
back of their house, and while she saw
appellant undress AAA, she did not actually
see the sexual intercourse because the
appellant saw her watching them, so she ran
away. Secondly, BBB’s testimony that on 9
December 2002, AAA confided to her that
she was raped by appellant early that night
92
was inconsistent with the testimony of
Analiza that it was in the afternoon of the
same day when she saw appellant and AAA
going to the kiln, where the former
undressed the latter. Thirdly, Dr. Nochete’s
testimony clearly stated that the hymenal
lacerations on AAA’s vagina could have
possibly been sustained by her a month ago,
which does not support AAA’s claim of rape
on 9 December 2002. Even granting that
appellant, indeed, raped AAA on 9
December 2002, it is highly implausible that
the hymenal lacerations on her vagina were
already completely healed when she was
examined by Dr. Nochete on 10 December
2002, which was only after less than 24-
hours from the date the alleged rape was
committed.
Appellant also questions the credibility of
AAA as a witness given her condition as a
mental retardate. Appellant opines that AAA,
could not perceive and is not capable of
making known her perception to others. As
such, she can be easily coached on what to
say or do.
Appellant finally avers that granting
arguendo that he is guilty of the crime
charged, he was only 17 years old at the
time of its commission as evidenced by his
Certificate of Live Birth. This fact was even
attested to by the Local Civil Registrar of
Bobon, Northern Samar. Given his minority
at the time of the commission of the crime
charged, the court should have considered
the same as privileged mitigating
circumstance in imposing the penalty
against him.
This Court affirms appellant’s conviction.
At the outset, paragraph 1, Article 266-A of
the Revised Penal Code, as amended by
Republic Act No. 8353,27 provides for two
(2) circumstances when carnal knowledge of
a woman with mental disability is considered
rape. Subparagraph (b) thereof refers to
rape of a person "deprived of reason" while
subparagraph (d) refers to rape of a
"demented person."28 The term "deprived of
reason" has been construed to encompass
those suffering from mental abnormality,
deficiency or retardation.29 The term
"demented," on the other hand, means
having dementia, which Webster defines as
mental deterioration; also madness, insanity.
30 Dementia has also been defined in
Black’s Law Dictionary as a "form of mental
disorder in which cognitive and intellectual
functions of the mind are prominently
affected; x x x total recovery not possible
since cerebral disease is involved."31 Thus,
a mental retardate can be classified as a
person "deprived of reason," not one who is
"demented" and carnal knowledge of a
mental retardate is considered rape under
subparagraph (b), not subparagraph (d) of
Article 266-A(1) of the Revised Penal Code,
as amended.32
In this case, both the trial court and the
appellate court incorrectly used the word
demented to characterize AAA’s mental
condition and mistakenly categorized the
rape committed by appellant under
subparagraph (d), Article 266-A(1) of the
Revised Penal Code, as amended, instead
of under subparagraph (b) thereof.
Nonetheless, the mistake would not
exonerate appellant. Otherwise stated, his
conviction or criminal liability for rape stands
though not under subparagraph (d) of Article
266-A(1) of the Revised Penal Code, as
amended, but under subparagraph (b)
thereof.
Neither can it be said that appellant’s right to
be properly informed of the nature and
cause of the accusation against him was
violated. This Court is not unaware that the
Information was worded, as follows: "AAA is
suffering from mental disorder or is
demented or has mental disability." This fact,
however, will not render the Information
defective and will not bar this Court from
convicting appellant under subparagraph (b)
of Article 266-A(1) of the Revised Penal
Code, as amended.
In Olivarez v. Court of Appeals,33 this Court
pronounced that:
x x x In People v. Rosare,34 the information
did not allege that the victim was a mental
retardate which is an essential element of
the crime of statutory rape. This Court
however sustained the trial court’s judgment
of conviction holding that the resolution of
the investigating prosecutor which formed
the basis of the information, a copy of which
93
is attached thereto, stated that the offended
party is suffering from mental retardation. It
ruled that there was substantial compliance
with the mandate that an accused be
informed of the nature of the charge against
him. Thus:
Appellant contends that he cannot be
convicted of statutory rape because the fact
that the victim was a mental retardate was
never alleged in the information and, absent
this element, the acts charged negate the
commission of the offense for which he was
convicted by the lower court.
Pursuant to Section 8, Rule 112 of the Rules
of Court, we have decided to motu proprio
take cognizance of the resolution issued by
the investigating prosecutor in I.S. No.
92-0197 dated June 2, 1992, which formed
the basis of and a copy of which was
attached to the information for rape filed
against herein appellant. Therein, it is clearly
stated that the offended party is suffering
from mental retardation. We hold, therefore,
that this should be deemed a substantial
compliance with the constitutional mandate
that an accused be informed of the nature of
the charge against him x x x (citation
omitted).35 [Emphasis supplied].
In this case, both the Complaint36 and the
Resolution37 of the Municipal Trial Court of
Northern Samar, which formed the basis of
the Information and copies of which were
attached in the records, stated that AAA is
suffering from mental abnormalities – she
looked like a retardate and her focus is not
normal. Even, the Resolution38 of the Acting
Provincial Prosecutor concurred with the
aforesaid findings. From the aforesaid, it can
be gleaned that AAA’s mental disorder or
mental disability is that of being a mentally
retarded and not demented. Thus, there was
substantial compliance with the mandate to
inform the accused of the nature of the
accusation.39 More so, as discussed
hereunder, the prosecution was able to
prove that AAA is, indeed, a mental
retardate. Even the appellant affirmed the
said mental condition of the victim.
To repeat, the term "deprived of reason" has
been construed to encompass those
suffering from mental abnormality, deficiency
or retardation.40 Hence, carnal knowledge
of a mental retardate is rape under
subparagraph (b) not subparagraph (d) of
Article 266-A(1) of the Revised Penal Code,
as amended.41
The gravamen of the crime of rape under
Art. 266-A(1) is sexual intercourse with a
woman against her will or without her
consent.42 Article 266-A(1) of the Revised
Penal Code, as amended, specifically states
that:
ART. 266-A. Rape; When and How
Committed. — Rape is committed.
1) By a man who have carnal knowledge of
a woman under any of the following
circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of
reason or otherwise unconscious;
c) By means of fraudulent machination or
grave abuse of authority; and
d) When the offended party is under twelve
(12) years of age or is demented, even
though none of the circumstances
mentioned above be present.[Emphasis
supplied].
From the foregoing, for the charge of rape to
prosper, the prosecution must prove that the
offender had carnal knowledge of a woman
through any of the four enumerated
circumstances. Without doubt, carnal
knowledge of a woman who is a mental
retardate is rape under the aforesaid
provisions of law. Proof of force or
intimidation is not necessary, as a mental
retardate is not capable of giving consent to
a sexual act. What needs to be proven are
the facts of sexual congress between the
accused and the victim, and the mental
retardation of the latter.43
In People v. Dalandas,44 citing People v.
Dumanon,45 this Court held that mental
retardation can be proven by evidence other
than medical/clinical evidence, such as the
testimony of witnesses and even the
observation by the trial court.46
94
In the present case, the prosecution was
able to establish that AAA is, indeed, a
mental retardate through, (1) the testimony
of her mother; (2) the trial court’s
observation; and (3) the mental examination
and actual interview of AAA conducted by
Dr. Belicena, a Psychiatrist at the Northern
Samar Provincial Hospital, who found AAA
to be suffering from moderate to severe
mental retardation, meaning, AAA is
suffering from the "specific form of below
average intelligence which has a low
reproduction functioning which result to
impairment functioning."47 It is also worthy
to note that the defense did not dispute,
even admitted the fact that AAA is suffering
from mental retardation. The findings of the
lower courts about AAA’s mental condition
must be upheld.
The prosecution was also able to establish
the fact of sexual congress between
appellant and AAA. Despite the latter’s
mental condition, she narrated before the
court in the best way she could her ordeal in
the hands of appellant. As stated by the
appellate court, AAA conveyed her ideas by
words and demonstrations.48 AAA
recounted how the appellant sexually
abused her on 9 December 2002 by inviting
her to go to the kiln at the back of their
house. Thereupon, appellant suddenly
undressed her by removing her shorts and
panty. This fact was attested to by Analiza,
one of the prosecution witnesses, who
actually witnessed appellant undressing AAA
by removing the latter’s shorts and panty.
AAA further testified that after undressing
her, appellant made her lie down, placed
himself on top of her and made push and
pull movements. Thereafter, appellant
stopped, made her sit down and sent her
home.49 This testimony of AAA was
correctly found by the trial court and the
appellate court as coherent and given in a
detailed manner.50
Emphasis must be given to the fact that the
competence and credibility of mentally
deficient rape victims as witnesses have
been upheld by this Court where it is shown
that they can communicate their ordeal
capably and consistently. Rather than
undermine the gravity of the complainant’s
accusations, it even lends greater credence
to her testimony, that, someone as feeble-
minded and guileless could speak so
tenaciously and explicitly on the details of
the rape if she has not in fact suffered such
crime at the hands of the accused.
Moreover, it has been jurisprudentially
settled that when a woman says she has
been raped, she says in effect all that is
necessary to show that she has been raped
and her testimony alone is sufficient if it
satisfies the exacting standard of credibility
needed to convict the accused.51
Worth stressing also is the fact that during
AAA’s testimony, she positively identified the
appellant as the person who raped her.52
Thus, the straightforward narration of AAA of
what transpired, accompanied by her
categorical identification of appellant as the
malefactor, sealed the case for the
prosecution.53
The allegation of inconsistencies in the
testimonies of AAA, BBB, Analiza and Dr.
Nochete as regards the exact date and time
the alleged rape incident happened, as well
as the absence of fresh hymenal lacerations
on AAA’s vagina, pointed to by appellant
cannot work in his favor.
Evidently, these inconsistencies refer only to
trivial and inconsequential matters that do
not alter the essential fact of the commission
of rape.54 A witness is not expected to
remember with perfect recollection every
minute detail of her harrowing experience. A
minor mistake as to the exact time of the
commission of the rape is immaterial and
cannot discredit the testimony of a witness.
This Court has repeatedly held that the
exact date of the commission of the rape is
not an essential element of the crime.55
Indeed, the precise time of the crime has no
substantial bearing on its commission.56
What is decisive in a rape charge is that the
commission of the rape by the accused
against the complainant has been
sufficiently proven. Inconsistencies and
discrepancies as to minor matters which are
irrelevant to the elements of the crime
cannot be considered grounds for acquittal.
57
In the same way, the absence of fresh
hymenal lacerations and spermatozoa on
AAA’s vagina do not negate the fact of rape.
95
A freshly broken hymen, as well as the
presence or absence of spermatozoa, is not
also an essential element of rape.58 As
clarified by Dr. Nochete, the absence of
fresh hymenal laceration on AAA’s vagina
does not necessarily mean that she did not
engage in sexual intercourse on 9
December 2002. Possibly, AAA did not
sustain any fresh hymenal laceration as her
vaginal canal had become loose. And, he did
not find any trace of spermatozoa because
its presence depends on whether or not the
appellant ejaculated.
Indeed, a mental retardate is not, by reason
of such handicap alone, be disqualified from
testifying in court.59 Mental retardation per
se does not affect credibility. A mentally
retarded may be a credible witness. The
acceptance of her testimony depends on the
quality of her perceptions and the manner
she can make them known to the court.60 If
the testimony of a mental retardate is
coherent, the same is admissible in court.61
Neither can it be said that AAA was merely
coached as a witness by her mother. It is
highly unthinkable that a mother would draw
her daughter, a mental retardate at that, into
a rape story with all its attendant scandal
and humiliation if the rape did not really
happen. No mother in her right mind would
possibly wish to stamp her child with the
stigma that follows the despicable crime of
rape.62 Moreover, appellant failed to show
any ill-motive on the part of AAA and her
mother to falsely testify against him.
In light of the straightforward and credible
testimony of AAA, her positive identification
of appellant as her assailant and the lack of
ill-motive on her part to falsely testify against
appellant, the latter’s defense of denial and
alibi must necessarily fail.
Denial is an inherently weak defense and
has always been viewed upon with disfavor
by the courts due to the ease with which it
can be concocted. Denial as a defense
crumbles in the light of positive identification
of the accused, as in this case. The defense
of denial assumes significance only when
the prosecution’s evidence is such that it
does not prove guilt beyond reasonable
doubt. Verily, mere denial, unsubstantiated
by clear and convincing evidence, is
negative self-serving evidence which cannot
be given greater evidentiary weight than the
testimony of the complaining witness who
testified on affirmative matters.63
Like denial, alibi is not looked upon with
favor by the trial court. It also cannot prevail
over witnesses’ positive identification of
appellant as the perpetrator of the crime. In
any event, for the defense of alibi to prosper,
it is not enough that the accused can prove
his presence at another place at the time of
its commission, it is likewise essential that
he show physical impossibility for him to be
at the locus delicti,64 which the appellant in
this case failed to do.
As aptly observed by the trial court:
The houses of the offended party and the
appellant are only divided by a fence and the
place of the incident is only at the back of
the house of the appellant. The defense of
alibi must fail. In addition to the positive
identification made by AAA and the place of
the incident is adjacent to the houses of the
victim and the appellant, being neighbors,
the fact that the appellant alleged that he
was having drinking spree at that time and
that he was dead drunk at around 6:00 p.m.
of that date, there is no impossibility for the
appellant to be physically present at the
scene of the incident, because of its
proximity.
Corroborative testimony is not credible if
tainted with bias particularly in cases where
the witnesses are closely associated to the
appellant as to be interested in the
appellant’s acquittal. In this case, the
appellant’s witnesses are his alleged
drinking buddy and his father. Considering
that they are bound by friendship and
affiliation, it is conceivable that they would
be inclined to make excuses for him
appellant from culpability.65
All told, appellant’s guilt has been proven by
the prosecution beyond reasonable doubt,
thus, his conviction stands.
As to penalty. Under Article 266-B66 in
relation to Article 266-A(1) of the Revised
Penal Code, as amended, simple rape is
punishable by reclusion perpetua. However,
96
when rape is committed by an assailant who
has knowledge of the victim’s mental
retardation, the penalty is increased to
death. But this circumstance must be
alleged in the information being a qualifying
circumstance which increases the penalty to
death and changes the nature of the offense
from simple to qualified rape.67 In the case
at bench, while appellant categorically
admitted that he knew AAA to be suffering
from mental abnormalities, the prosecution
failed to allege this fact in the information. As
such, even if it was proved, it cannot be
appreciated as a qualifying circumstance.
Thus, appellant’s conviction is only for
simple rape for which he should be meted
the penalty of reclusion perpetua.
Nonetheless, a reasonable ground exists in
this case that calls for the modification of the
penaltyof reclusion perpetua imposed by
both lower courts upon the appellant.
This Court finds merit in appellant’s
assertion that he was a minor during the
commission of the crime charged. During
trial, upon order of the trial court, the Local
Civil Registrar of Bobon, Northern Samar,
brought before it their office records,
particularly appellant’s Certificate of Live
Birth containing the fact of birth of the latter.
Appellant’s Certificate of Live Birth shows
that he was born on 23 February 1985.
Indeed, at the time of the commission of the
crime charged on 9 December 2002,
appellant was only 17 years old, a minor.
Thus, he is entitled to the privileged
mitigating circumstance of minority pursuant
to Article 68(2) of the Revised Penal Code,
as amended,68 which specifically states
that:
ART. 68. – Penalty to be imposed upon a
person under eighteen years of age. – When
the offender is a minor under eighteen years
and his case is one coming under the
provisions of the paragraph next to the last
of article 80 of this Code, the following rules
shall be observed:
xxxx
2. Upon a person over fifteen and under
eighteen years of age the penalty next lower
than that prescribed by the law shall be
imposed, but always in the proper period.69
[Emphasis supplied].
Applying the privileged mitigating
circumstance, the proper imposable penalty
upon appellant is reclusion temporal, being
the penalty next lower to reclusion perpetua
- the penalty prescribed by law for simple
rape. Being a divisible penalty, the
Indeterminate Sentence Law is applicable.
70
Applying the Indeterminate Sentence Law,
appellant can be sentenced to an
indeterminate penalty the minimum of which
shall be within the range of prision mayor
(the penalty next lower in degree to
reclusion temporal), that is 6 years and 1
day to 12 years, and maximum of which
shall be within the range of reclusion
temporal in its medium period (there being
no other modifying circumstances attendant
to the crime), that is 14 years, 8 months and
1 day to 17 years and 4 months.71 With
that, the indeterminate penalty of 10 years of
prision mayor, as minimum, to 17 years and
4 months of reclusion temporal, as
maximum, should be imposed upon the
appellant. However, the case of appellant
does not, as it normally should, end at this
point. On 20 May 2006, Republic Act No.
9344, otherwise known as the "Juvenile
Justice and Welfare Act of 2006," took effect.
Section 68 thereof specifically provides for
its retroactive application, thus:72
SEC. 68. Children Who Have Been
Convicted and are Serving Sentence. –
Persons who have been convicted and are
serving sentence at the time of the effectivity
of this Act, and who were below the age of
eighteen (18) years at the time of the
commission of the offense for which they
were convicted and are serving sentence,
shall likewise benefit from the retroactive
application of this Act. They shall be entitled
to appropriate dispositions provided under
this Act and their sentences shall be
adjusted accordingly. They shall be
immediately released if they are so qualified
under this Act or other applicable law.
[Emphasis supplied].
Clearly, Republic Act No. 9344 is applicable
in this case even though the crime was
97
committed four (4) years prior to its
enactment and effectivity. Parenthetically,
with more reason should Republic Act No.
9344 apply to this case as the 2005
conviction by the lower courts was still under
review when the law took effect in 2006.73
Section 38 of Republic Act No. 9344
warrants the suspension of sentence of a
child in conflict with the law notwithstanding
that he/she has reached the age of majority
at the time the judgment of conviction is
pronounced.74 It reads, thus:
SEC. 38. Automatic Suspension of
Sentence. – Once the child who is under
eighteen (18) years of age at the time of the
commission of the offense is found guilty of
the offense charged, the court shall
determine and ascertain any civil liability
which may have resulted from the offense
committed. However, instead of pronouncing
the judgment of conviction, the court shall
place the child in conflict with the law under
suspended sentence, without need of
application: Provided, however, That
suspension of sentence shall still be applied
even if the juvenile is already eighteen (18)
of age or more at the time of the
pronouncement of his/her guilt.
Upon suspension of sentence and after
considering the various circumstances of the
child, the court shall impose the appropriate
disposition measures as provided in the
Supreme Court Rule on Juveniles in Conflict
with the Law. [Emphasis supplied].
However, while Section 38 of Republic Act
No. 9344 provides that suspension of
sentence can still be applied even if the child
in conflict with the law is already eighteen
(18) years of age or more at the time of the
pronouncement of his/her guilt, Section 40 of
the same law limits the said suspension of
sentence until the said child reaches the
maximum age of 21, thus:75
SEC. 40. Return of the Child in Conflict with
the Law to Court. – If the court finds that the
objective of the disposition measures
imposed upon the child in conflict with the
law have not been fulfilled, or if the child in
conflict with the law has willfully failed to
comply with the conditions of his/her
disposition or rehabilitation program, the
child in conflict with the law shall be brought
before the court for execution of judgment.
If said child in conflict with the law has
reached eighteen (18) years of age while
under suspended sentence, the court shall
determine whether to discharge the child in
accordance with this Act, to order execution
of sentence, or to extend the suspended
sentence for a certain specified period or
until the child reaches the maximum age of
twenty-one (21) years. [Emphasis supplied].
At present, appellant is already 27 years of
age, and the judgment of the trial court was
promulgated prior to the effectivity of
Republic Act No. 9344. Therefore, the
application of Sections 38 and 40 of the said
law is already moot and academic.
Be that as it may, to give meaning to the
legislative intent of Republic Act No. 9344,
the promotion of the welfare of a child in
conflict with the law should extend even to
one who has exceeded the age limit of 21
years, so long as he/she committed the
crime when he/she was still a child. The
offender shall be entitled to the right to
restoration, rehabilitation and reintegration in
accordance with Republic Act No. 9344 in
order that he/she is given the chance to live
a normal life and become a productive
member of the community. The age of the
child in conflict with the law at the time of the
promulgation of the judgment of conviction is
not material. What matters is that the
offender committed the offense when he/she
was still of tender age.76 The appellant,
therefore, shall be entitled to appropriate
disposition under Section 51 of Republic Act
No. 9344, which provides for the
confinement of convicted children as follows:
77
SEC. 51. Confinement of Convicted Children
in Agricultural Camps and Other Training
Facilities. – A child in conflict with the law
may, after conviction and upon order of the
court, be made to serve his/her sentence, in
lieu of confinement in a regular penal
institution, in an agricultural camp and other
training facilities that may be established,
maintained, supervised and controlled by the
BUCOR, in coordination with the DSWD.
98

To conform to this Court’s ruling in People
v.Sarcia,78 the case shall be remanded to
the court of origin to effect appellant’s
confinement in an agricultrual camp or other
training facility.79
As to damages. The civil liability resulting
from the commission of the offense is not
affected by the appropriate disposition
measures and shall be enforced in
accordance with law.80 This Court affirms
both the civil indemnity of P50,000.00 and
moral damages of P50,000.00 awarded by
the lower courts in favor of AAA. Civil
indemnity, which is actually in the nature of
actual or compensatory damages, is
mandatory upon the finding of the fact of
rape. Case law also requires automatic
award of moral damages to a rape victim
without need of proof because from the
nature of the crime, it can be assumed that
she has suffered moral injuries entitling her
to such award. Such award is separate and
distinct from civil indemnity.81
In consonance with prevailing jurisprudence
on simple rape wherein exemplary damages
are awarded to set a public example and to
protect hapless individuals from sexual
molestation, this Court likewise affirms the
lower courts award of exemplary damages
but increased the same from P25,000.00 to
P30,000.00 to conform to recent
jurisprudence.82
WHEREFORE, premises considered, the
Decision of the Court of Appeals in CA-G.R.
CR-HC No. 00457 dated 3 December 2009
is hereby MODIFIED as follows: (I) appellant
is found guilty of rape under subparagraph
(b) of Article 266-A( I) of the Revised Penal
Code, as amended, and not under
subparagraph (d) thereof; (2) in view of the
privileged mitigating circumstance
appreciated in favor of appellant the penalty
of reclusion perpetua is reduced to reclusion
temporal and being a divisible penalty, the
Indeterminate Sentence Law applies and the
indeterminate penalty of I 0 years of prision
mayor, as minimum, to 17 years and 4
months of reclusion temporal, as maximum,
is imposed upon the appellant; and (3) the
amount of exemplary damages awarded by
the lower courts is increased from
P25,000.00 to P30,000.00. The award of
civil indemnity and moral damages both in
the amount of P50,000.00 are maintained.
This case, however, shall be REMANDED to
the court a quo for appropriate disposition in
accordance with Section 51 of Republic Act
No. 9344.
SO ORDERED.
===
FIRST DIVISION
[G.R. No. 120027. April 21, 1999]
EDNA A. RAYNERA, for herself and on
behalf of the minors RIANNA and REIANNE
RAYNERA, petitioners, vs. FREDDIE
HICETA and JIMMY ORPILLA, respondents.
DECISION
PARDO, J.:
The case is a petition for review on certiorari
of the decision of the Court of Appeals,[1]
reversing that of the Regional Trial Court,
Branch 45, Manila.[2]
The rule is well-settled that factual findings
of the Court of Appeals are generally
considered final and may not be reviewed on
appeal. However, this principle admits of
certain exceptions, among which is when the
findings of the appellate court are contrary to
those of the trial court, a re-examination of
the facts and evidence may be undertaken.
[3] This case falls under the cited exception.
The antecedent facts are as follows:
Petitioner Edna A. Raynera was the widow
of Reynaldo Raynera and the mother and
legal guardian of the minors Rianna and
Reianne, both surnamed Raynera.
Respondents Freddie Hiceta and Jimmy
Orpilla were the owner and driver,
respectively, of an Isuzu truck-trailer, with
plate No. NXC 848, involved in the accident.
On March 23, 1989, at about 2:00 in the
morning, Reynaldo Raynera was on his way
home. He was riding a motorcycle traveling
on the southbound lane of East Service
Road, Cupang, Muntinlupa. The Isuzu truck
was travelling ahead of him at 20 to 30
99
kilometers per hour.[4] The truck was loaded
with two (2) metal sheets extended on both
sides, two (2) feet on the left and three (3)
feet on the right. There were two (2) pairs of
red lights, about 35 watts each, on both
sides of the metal plates.[5] The asphalt
road was not well lighted.
At some point on the road, Reynaldo
Raynera crashed his motorcycle into the left
rear portion of the truck trailer, which was
without tail lights. Due to the collision,
Reynaldo sustained head injuries and truck
helper Geraldino D. Lucelo[6] rushed him to
the Paraaque Medical Center. Upon arrival
at the hospital, the attending physician, Dr.
Marivic Aguirre,[7] pronounced Reynaldo
Raynera dead on arrival.
At the time of his death, Reynaldo was
manager of the Engineering Department,
Kawasaki Motors (Phils.) Corporation. He
was 32 years old, had a life expectancy of
sixty five (65) years, and an annual net
earnings of not less than seventy three
thousand five hundred (P73,500.00) pesos,
[8] with a potential increase in annual net
earnings of not less than ten percent (10%)
of his salary.[9]
On May 12, 1989, the heirs of the deceased
demanded[10] from respondents payment of
damages arising from the death of Reynaldo
Raynera as a result of the vehicular
accident. The respondents refused to pay
the claims.
On September 13, 1989, petitioners filed
with the Regional Trial Court, Manila[11] a
complaint[12] for damages against
respondents owner and driver of the Isuzu
truck.
In their complaint against respondents,
petitioners sought recovery of damages for
the death of Reynaldo Raynera caused by
the negligent operation of the truck-trailer at
nighttime on the highway, without tail lights.
In their answer filed on April 4, 1990,
respondents alleged that the truck was
travelling slowly on the service road, not
parked improperly at a dark portion of the
road, with no tail lights, license plate and
early warning device.
At the trial, petitioners presented Virgilio
Santos. He testified that at about 1:00 and
2:00 in the morning of March 23, 1989, he
and his wife went to Alabang market, on
board a tricycle. They passed by the service
road going south, and saw a parked truck
trailer, with its hood open and without tail
lights. They would have bumped the truck
but the tricycle driver was quick in avoiding a
collision. The place was dark, and the truck
had no early warning device to alert passing
motorists.[13]
On the other hand, respondents presented
truck helper Geraldino Lucelo.[14] He
testified that at the time the incident
happened, the truck was slowly traveling at
approximately 20 to 30 kilometers per hour.
Another employee of respondents, auto-
mechanic Rogoberto Reyes,[15] testified
that at about 3:00 in the afternoon of March
22, 1989, with the help of Lucelo, he
installed two (2) pairs of red lights, about 30
to 40 watts each, on both sides of the steel
plates.[16] On his part, traffic investigation
officer Cpl. Virgilio del Monte[17] admitted
that these lights were visible at a distance of
100 meters.
On December 19, 1991, the trial court
rendered decision in favor of petitioners. It
found respondents Freddie Hiceta and
Jimmy Orpilla negligent in view of these
circumstances: (1) the truck trailer had no
license plate and tail lights; (2) there were
only two pairs of red lights, 50 watts[18]
each, on both sides of the steel plates; and
(3) the truck trailer was improperly parked in
a dark area.
The trial court held that respondents
negligence was the immediate and
proximate cause of Reynaldo Rayneras
death, for which they are jointly and
severally liable to pay damages to
petitioners. The trial court also held that the
victim was himself negligent, although this
was insufficient to overcome respondents
negligence. The trial court applied the
doctrine of contributory negligence[19] and
reduced the responsibility of respondents by
20% on account of the victims own
negligence.
100
The dispositive portion of the lower courts
decision reads as follows:
All things considered, the Court is of the
opinion that it is fair and reasonable to fix the
living and other expenses of the deceased
the sum of P54,000.00 a year or about
P4,500.00 a month (P150.00 p/d) and that,
consequently, the loss or damage sustained
by the plaintiffs may be estimated at
P1,674,000.00 for the 31 years of Reynaldo
Rayneras life expectancy.
Taking into account the cooperative
negligence of the deceased Reynaldo
Raynera, the Court believes that the
demand of substantial justice are satisfied
by allocating the damages on 80-20 ratio.
Thus, P1,337,200.00 shall be paid by the
defendants with interest thereon, at the legal
rate, from date of decision, as damages for
the loss of earnings. To this sum, the
following shall be added:
(a) P33,412.00, actually spent for funeral
services, interment and memorial lot;
(b) P20,000.00 as attorneys fees;
(c) cost of suit.
SO ORDERED.[20]
On January 10, 1992, respondents Hiceta
and Orpilla appealed to the Court of
Appeals.[21]
After due proceedings, on April 28, 1995, the
Court of Appeals rendered decision setting
aside the appealed decision. The appellate
court held that Reynaldo Rayneras bumping
into the left rear portion of the truck was the
proximate cause of his death,[22] and
consequently, absolved respondents from
liability.
Hence, this petition for review on certiorari.
In this petition, the heirs of Reynaldo
Raynera contend that the appellate court
erred in: (1) overturning the trial courts
finding that respondents negligent operation
of the Isuzu truck was the proximate cause
of the victims death; (2) applying the
doctrine of last clear chance; (3) setting
aside the trial courts award of actual and
compensatory damages.
The issues presented are (a) whether
respondents were negligent, and if so, (b)
whether such negligence was the proximate
cause of the death of Reynaldo Raynera.
Petitioners maintain that the proximate
cause of Reynaldo Rayneras death was
respondents negligence in operating the
truck trailer on the highway without tail lights
and license plate.
The Court finds no reason to disturb the
factual findings of the Court of Appeals.
Negligence is the omission to do something
which a reasonable man, guided by those
considerations which ordinarily regulate the
conduct of human affairs, would do, or the
doing of something, which a prudent and
reasonable man would not do.[23]
Proximate cause is that cause, which, in
natural and continuous sequence, unbroken
by any efficient intervening cause, produces
the injury, and without which the result would
not have occurred.[24]
During the trial, it was established that the
truck had no tail lights. The photographs
taken of the scene of the accident showed
that there were no tail lights or license plates
installed on the Isuzu truck. Instead, what
were installed were two (2) pairs of lights on
top of the steel plates, and one (1) pair of
lights in front of the truck. With regard to the
rear of the truck, the photos taken and the
sketch in the spot report proved that there
were no tail lights.
Despite the absence of tail lights and license
plate, respondents truck was visible in the
highway. It was traveling at a moderate
speed, approximately 20 to 30 kilometers
per hour. It used the service road, instead of
the highway, because the cargo they were
hauling posed a danger to passing
motorists. In compliance with the Land
Transportation Traffic Code (Republic Act
No. 4136)[25] respondents installed 2 pairs
of lights on top of the steel plates, as the
vehicles cargo load extended beyond the
bed or body thereof.
101
We find that the direct cause of the accident
was the negligence of the victim. Traveling
behind the truck, he had the responsibility of
avoiding bumping the vehicle in front of him.
He was in control of the situation. His
motorcycle was equipped with headlights to
enable him to see what was in front of him.
He was traversing the service road where
the prescribed speed limit was less than that
in the highway.
Traffic investigator Cpl. Virgilio del Monte
testified that two pairs of 50-watts bulbs
were on top of the steel plates,[26] which
were visible from a distance of 100 meters.
[27] Virgilio Santos admitted that from the
tricycle where he was on board, he saw the
truck and its cargo of iron plates from a
distance of ten (10) meters.[28] In light of
these circumstances, an accident could
have been easily avoided, unless the victim
had been driving too fast and did not
exercise due care and prudence demanded
of him under the circumstances.
Virgilio Santos testimony strengthened
respondents defense that it was the victim
who was reckless and negligent in driving
his motorcycle at high speed. The tricycle
where Santos was on board was not much
different from the victims motorcycle that
figured in the accident. Although Santos
claimed the tricycle almost bumped into the
improperly parked truck, the tricycle driver
was able to avoid hitting the truck.
It has been said that drivers of vehicles who
bump the rear of another vehicle are
presumed to be the cause of the accident,
unless contradicted by other evidence.[29]
The rationale behind the presumption is that
the driver of the rear vehicle has full control
of the situation as he is in a position to
observe the vehicle in front of him.
We agree with the Court of Appeals that the
responsibility to avoid the collision with the
front vehicle lies with the driver of the rear
vehicle.
Consequently, no other person was to blame
but the victim himself since he was the one
who bumped his motorcycle into the rear of
the Isuzu truck. He had the last clear chance
of avoiding the accident.
WHEREFORE, we DENY the petition for
review on certiorari and AFFIRM the
decision of the Court of Appeals in CA-G. R.
CV No. 35895, dismissing the amended
complaint in Civil Case No. 89-50355,
Regional Trial Court, Branch 45, Manila.
No costs.
SO ORDERED.
===
ARTICLE 13
FIRST DIVISION
[G.R. No. 103613. February 23, 2001]
PEOPLE OF THE PHILIPPINES, petitioner,
vs. COURT OF APPEALS and ELADIO C.
TANGAN, respondents.
[G.R. No. 105830. February 23, 2001]
ELADIO C. TANGAN, petitioner, vs.
PEOPLE OF THE PHILIPPINES and
COURT OF APPEALS, respondents.
DECISION
YNARES-SANTIAGO, J.:
At around 11:30 p.m. of December 1, 1984,
Navy Captain Eladio C. Tangan was driving
alone on Roxas Boulevard heading south.
He had just come from Buendia Avenue on
an intelligence operation. At the same time,
Generoso Miranda, a 29-year old
optometrist, was driving his car in the same
direction along Roxas Boulevard with his
uncle, Manuel Miranda, after coming from
the Ramada Hotel. Generoso was moving
ahead of Tangan. Suddenly, firecrackers
were thrown in Generosos way, causing him
to swerve to the right and cut Tangans path.
Tangan blew his horn several times.
Generoso slowed down to let Tangan pass.
Tangan accelerated and overtook Generoso,
but when he got in front, Tangan reduced
speed. Generoso tried four or five times to
overtake on the right lane but Tangan kept
blocking his lane. As he approached Airport
Road, Tangan slowed down to make a U-
turn. Generoso passed him, pulled over and
got out of the car with his uncle. Tangan also
stopped his car and got out. As the Mirandas
got near Tangans car, Generoso loudly
102
retorted, Putang ina mo, bakit mo ginigitgit
ang sasakyan ko? Generoso and Tangan
then exchanged expletives. Tangan pointed
his hand to Generoso and the latter slapped
it, saying, Huwag mo akong dinuduro! Sino
ka ba, ano ba ang pinagmamalaki mo?
Tangan countered, Ikaw, ano ang gusto mo?
With this, Tangan went to his car and got
his .38 caliber handgun on the front seat.
The subsequent events per account of the
parties respective witnesses were
conflicting:
According to the prosecution witnesses,
particularly, Mary Ann Borromeo, Rosalia
Cruz and Manuel Miranda, the accused
pointed his gun at Generoso Miranda and
when Manuel Miranda tried to intervene, the
accused pointed his gun at Manuel Miranda,
and after that the accused pointed again the
gun to Generoso Miranda, the accused shot
Generoso Miranda at a distance of about a
meter but because the arm of the accused
was extended, the muzzle of the gun
reached to about more or less one foot away
from the body of Generoso Miranda. The
shot hit the stomach of Generoso Miranda
causing the latter to fall and while still
conscious, Generoso Miranda told Manuel
Miranda, his uncle, to get the gun. Manuel
Miranda grappled for the possession of the
gun and during their grappling, Rosalia Cruz
intervened and took hold of the gun and
after Rosalia Cruz has taken hold of the gun,
a man wearing a red T-shirt took the gun
from her. The man in T-shirt was chased by
Manuel Miranda who was able to get the
gun where the man in red T-shirt placed it.
On the other hand, the defense, particularly
the accused and his witness by the name of
Nelson Pante claimed that after the gun was
taken by the accused from inside his car, the
Mirandas started to grapple for possession
of the gun and during the grappling, and
while the two Mirandas were trying to wrest
away the gun from the accused, they fell
down at the back of the car of the accused.
According to the accused, he lost the
possession of the gun after falling at the
back of his car and as soon as they hit the
ground, the gun fell, and it exploded hitting
Generoso Miranda.[1]
After the gun went off, Tangan ran away.
Meanwhile, Generoso lay on the ground
bloodied. His uncle, Manuel, looked for the
gun and ran after Tangan, joining the mob
that had already pursued him. Tangan found
a policeman who allowed him to enter his
patrol car. Manuel arrived and told the
policeman that Tangan had just shot his
nephew. Then he went back to where
Generoso lay and there found two ladies,
later identified as Mary Ann Borromeo and
Rosalina Cruz, helping his nephew board a
taxi. Manuel suggested that Generoso be
brought to the hospital in his car. He was
rushed to the Philippine General Hospital but
he expired on the way.
Tangan was charged with the crime of
murder with the use of an unlicensed
firearm.[2] After a reinvestigation, however,
the information was amended to homicide
with the use of a licensed firearm,[3] and he
was separately charged with illegal
possession of unlicensed firearm.[4] On
arraignment, Tangan entered a plea of not
guilty in the homicide case, but moved to
quash the information for illegal possession
of unlicensed firearm on various grounds.
The motion to quash was denied,
whereupon he filed a petition for certiorari
with this Court.[5] On November 5, 1987,
said petition was dismissed and the joint trial
of the two cases was ordered.[6]
During the trial, the prosecution and the
defense stipulated on the following: that the
amount of P126,000.00 was incurred for the
funeral and burial expenses of the victim;[7]
that P74,625.00 was incurred for attorneys
fees; and that the heirs of Generoso suffered
moral damages, the amount of which is left
for the courts to determine. After trial, the
lower court acquitted Tangan of illegal
possession of firearm, but convicted him of
homicide. The privileged mitigating
circumstance of incomplete self-defense and
the ordinary mitigating circumstances of
sufficient provocation on the part of the
offended party and of passion and
obfuscation were appreciated in his favor;
consequently, the trial court ordered him to
suffer an indeterminate penalty of two (2)
months of arresto mayor, as minimum, to
two (2) years and four (4) months of prision
correccional, as maximum, and to indemnify
the heirs of the victim.[8] Tangan was
103
released from detention after the
promulgation of judgment[9] and was
allowed bail in the homicide case.
Private complainants, the heirs of Generoso
Miranda, filed a petition for review with this
Court, docketed as G.R. No. 102677,
challenging the civil aspect of the court a
quos decision, but the same was dismissed
for being premature. On the other hand,
Tangan appealed to the Court of Appeals,
which affirmed the judgment of the trial court
but increased the award of civil indemnity to
P50,000.00.[10] His subsequent motion for
reconsideration and a motion to cite the
Solicitor General in contempt were denied
by the Court of Appeals.[11]
The Office of the Solicitor General, on behalf
of the prosecution, alleging grave abuse of
discretion, filed a petition for certiorari under
Rule 65, docketed as G.R. No. 103613,
naming as respondents the Court of Appeals
and Tangan, where it prayed that the
appellate courts judgment be modified by
convicting accused-appellant of homicide
without appreciating in his favor any
mitigating circumstance.[12] Subsequently,
the Office of the Solicitor General, this time
acting for public respondent Court of
Appeals, filed a motion for extension to file
comment to its own petition for certiorari.[13]
Discovering its glaring error, the Office of the
Solicitor General later withdrew its motion for
extension of time.[14] Tangan filed a Reply
asking that the case be submitted for
decision.[15]
Meanwhile, Tangan filed a separate petition
for review under Rule 45, docketed as G.R.
No. 105830.[16] Since the petition for
certiorari filed by the Solicitor General
remained unresolved, the two cases were
consolidated.[17] The Office of the Solicitor
General filed a manifestation in G.R. No.
105830, asking that it be excused from filing
a comment to Tangans petition for review, in
order to avoid taking contradictory positions.
[18]
In the recent case of People v. Velasco and
Galvez,[19] we held that the prosecution
cannot avail of the remedies of special civil
action on certiorari, petition for review on
certiorari, or appeal in criminal cases.
Previous to that, we categorically ruled that
the writ of certiorari cannot be used by the
State in a criminal case to correct a lower
courts factual findings or evaluation of the
evidence.[20]
Rule 117, Section 7, of the Revised Rules of
Criminal Procedure, is clear:
Former conviction or acquittal; double
jeopardy. - When an accused has been
convicted or acquitted, or the case against
him dismissed or otherwise terminated
without his express consent by a court of
competent jurisdiction, upon a valid
complaint or information or other formal
charge sufficient in form and substance to
sustain a conviction and after the accused
had pleaded to the charge, the conviction or
acquittal of the accused or the dismissal of
the case shall be a bar to another
prosecution for the offense charged, or for
any attempt to commit the same or
frustration thereof, or for any offense which
necessarily includes or is necessarily
included in the offense charged in the former
complaint or information.
However, the conviction of the accused shall
not be a bar to another prosecution for an
offense which necessarily includes the
offense charged in the former complaint or
information under any of the following
instances:
(a) the graver offense developed due to
supervening facts arising from the same act
or omission constituting the former charge;
(b) the facts constituting the graver charge
became known or were discovered only after
a pleas was entered in the former complaint
or information; or
(c) the plea of guilty to the lesser offense
was made without the consent of the fiscal
and of the offended party, except as
provided in section 1(f) of Rule 116.
In any of the foregoing cases, where the
accused satisfies or serves in whole or in
part the judgment, he shall be credited with
the same in the event of conviction for the
graver offense.
104
Based on the foregoing, the Solicitor
Generals petition for certiorari under Rule
65, praying that no mitigating circumstance
be appreciated in favor of accused-appellant
and that the penalty imposed on him be
correspondingly increased, constitutes a
violation of Tangans right against double
jeopardy and should be dismissed.
We now come to the petition for review filed
by Tangan. It is noteworthy that during the
trial, petitioner Tangan did not invoke self-
defense but claimed that Generoso was
accidentally shot. As such, the burden of
proving self-defense,[21] which normally
would have belonged to Tangan, did not
come into play. Although Tangan must prove
his defense of accidental firing by clear and
convincing evidence,[22] the burden of
proving the commission of the crime
remained in the prosecution.
Both the trial court and the Court of Appeals
appreciated in favor of Tangan the privileged
mitigating circumstance of incomplete self-
defense under Article 13 (1), in relation to
Article 11 (1), of the Revised Penal Code, to
wit:
ARTICLE 11. Justifying circumstances. - The
following do not incur any criminal liability:
1. Anyone who acts in defense of his person
or rights, provided that the following
circumstances concur:
First. Unlawful aggression.
Second. Reasonable necessity of the means
employed to prevent or repel it.
Third. Lack of sufficient provocation on the
part of the person defending himself.
xxxxxxxxx
ARTICLE 13. Mitigating Circumstances. The
following are mitigating circumstances:
1. Those mentioned in the preceding
Chapter, when all the requisites necessary
to justify the act or to exempt from criminal
liability in the respective cases are not
attendant.
Incomplete self-defense is not considered as
a justifying act, but merely a mitigating
circumstance; hence, the burden of proving
the crime charged in the information is not
shifted to the accused.[23] In order that it
may be successfully appreciated, however, it
is necessary that a majority of the
requirements of self-defense be present,
particularly the requisite of unlawful
aggression on the part of the victim.[24]
Unlawful aggression by itself or in
combination with either of the other two
requisite suffices to establish incomplete
self-defense. Absent the unlawful
aggression, there can never be self-defense,
complete or incomplete,[25] because if there
is nothing to prevent or repel, the other two
requisites of defense will have no basis.[26]
There is no question that the bullet which hit
the victim was fired from the caliber. 38,
which was issued to Tangan by the
Philippine Navy. The cause of death was
severe hemorrhage secondary to gunshot
wound of the abdomen, caused by the bullet
fired from a gun of the said caliber. The
prosecution claimed that Tangan shot the
victim point-blank in the stomach at a
distance of about one foot. On the other
hand, Tangan alleged that when he grappled
with Generoso and Manuel Miranda for
possession of the gun, it fell to the ground
and accidentally fired, hitting the victim.
When the testimonies of witnesses in open
court are conflicting in substantial points, the
calibration of the records on appeal
becomes difficult. It is the word of one party
against the word of the other. The reviewing
tribunal relies on the cold and mute pages of
the records, unlike the trial court which had
the unique opportunity of observing first-
hand that elusive and incommunicable
evidence of the witness deportment on the
stand while testifying.[27] The trial courts
assessments of the credibility of witnesses is
accorded great weight and respect on
appeal and is binding on this Court,[28]
particularly when it has not been adequately
demonstrated that significant facts and
circumstances were shown to have been
overlooked or disregarded by the court
below which, if considered, might affect the
outcome hereof.[29] The rationale for this
has been adequately explained in that,
105
The trial court has the advantage of
observing the witnesses through the
different indicators of truthfulness or
falsehood, such as the angry flush of an
insisted assertion or the sudden pallor of a
discovered lie or the tremulous mutter of a
reluctant answer or the forthright tone of a
ready reply; or the furtive glance, the blush
of conscious shame, the hesitation, the
sincere or the flippant or sneering tone, the
heat, the calmness, the yawn, the sigh, the
candor or lack of it, the scant or full
realization of the solemnity of an oath, and
carriage and mien.[30]
Equally, when a person fabricates a story, he
usually adopts a simple account because a
complex one might lead to entanglement
from which he may find it hard to extricate
himself. Along the same line, the experience
of the courts and the general observations of
humanity teach us that the natural limitations
of our inventive faculties are such that if a
witness delivers in court a false narrative
containing numerous details, he is almost
certain to fall into fatal inconsistencies, to
make statements which can be readily
refuted, or to expose in his demeanor the
falsity of his message.[31] Aside from this, it
is not also unusual that the witness may
have been coached before he is called to
the stand to testify.
Somewhere along the painstaking review of
the evidence on record, one version rings
the semblance of truth, not necessarily
because it is the absolute truth, but simply
because it is the best approximation of the
truth based on the declarations of witnesses
as corroborated by material evidence.
Perforce, the other version must be rejected.
Truth and falsehood, it has been well said,
are not always opposed to each other like
black and white, but oftentimes, and by
design, are made to resemble each other so
as to be hardly distinguishable.[32] Thus,
after analyzing the conflicting testimonies of
the witnesses, the trial court found that:
When the accused took the gun from his car
and when he tried to get out of the car and
the two Mirandas saw the accused already
holding the gun, they started to grapple for
the possession of the gun that it went off
hitting Generoso Miranda at the stomach.
The court believes that contrary to the
testimony of the accused, he never lost
possession of the gun for if he did and when
the gun fell to the ground, it will not first
explode or if it did, somebody is not holding
the same, the trajectory of the bullet would
not be perpendicular or horizontal.[33]
The Court of Appeals agreed -
The finding of the lower court that Generoso
Miranda III was shot while the accused and
the Mirandas were grappling for the
possession of the gun immediately after the
accused had taken his gun from inside his
car and before the three allegedly fell to the
ground behind the car of the accused is
borne out by the record. The court also
agrees with the court below that it was the
accused-appellant who shot and killed
Generoso Miranda III. If the accused-
appellant did not shoot Generoso III during
the scuffle, he would have claimed
accidental killing by alleging that his gun
exploded during the scuffle instead of falsely
testifying that he and the Mirandas fell to the
ground behind his car and the gun exploded
in the possession of Manuel Miranda. The
theory of the prosecution that the shooting
took place while the three were grappling for
the possession of the gun beside the car of
appellant is completely in harmony with the
findings and testimony of Dr. Ibarrola
regarding the relative position of the three
and the precarious nearness of the victim
when accused-appellant pulled the trigger of
his gun. Dr. Ibarrola explained that the gun
was about two (2) inches from the entrance
wound and that its position was almost
perpendicular when it was fired. It was in
fact the closeness of the Mirandas vis--vis
appellant during the scuffle for the gun that
the accused-appellant was compelled to pull
the trigger in answer to the instinct of self-
preservation.[34]
No convincing reason appears for the Court
to depart from these factual findings, the
same being ably supported by the evidence
on record. In violent deaths caused by
gunshot wounds, the medical report or the
autopsy on the cadaver of the victim must as
much as possible narrate the observations
on the wounds examined. It is material in
determining the truthfulness of the events
narrated by the witnesses presented. It is
106
not enough that the witness looks credible
and assumes that he indeed witnessed the
criminal act. His narration must be
substantiated by the physical evidence
available to the court.
The medical examiner testified that the
distance between the muzzle of the gun and
the target was about 2 inches but definitely
not more than 3 inches. Based on the point
of exit and the trajectory transit of the
wound, the victim and the alleged assailant
were facing each other when the shot was
made and the position of the gun was almost
perpendicular when fired.[35] These findings
disprove Tangans claim of accidental
shooting. A revolver is not prone to
accidental firing because of the nature of its
mechanism, unless it was already first
cocked and pressure was exerted on the
trigger. If it were uncocked, then
considerable pressure had to be applied on
the trigger to fire the revolver.[36]
Having established that the shooting was not
accidental, the next issue to be resolved is
whether Tangan acted in incomplete self-
defense. The element of unlawful
aggression in self-defense must not come
from the person defending himself but from
the victim.
A mere threatening or intimidating attitude is
not sufficient.[37] Likewise, the exchange of
insulting words and invectives between
Tangan and Generoso Miranda, no matter
how objectionable, could not be considered
as unlawful aggression, except when
coupled with physical assault.[38] There
being no lawful aggression on the part of
either antagonists, the claim of incomplete
self-defense falls. Tangan undoubtedly had
possession of the gun, but the Mirandas
tried to wrestle the gun from him. It may be
said that the former had no intention of
killing the victim but simply to retain
possession of his gun. However, the fact that
the victim subsequently died as a result of
the gunshot wound, though the shooter may
not have the intention to kill, does not
absolve him from culpability. Having caused
the fatal wound, Tangan is responsible for all
the consequences of his felonious act. He
brought out the gun, wrestled with the
Mirandas but anticipating that the gun may
be taken from him, he fired and fled.
The third requisite of lack of sufficient
provocation on the part of the person
defending himself is not supported by
evidence. By repeatedly blocking the path of
the Mirandas for almost five times, Tangan
was in effect the one who provoked the
former. The repeated blowing of horns,
assuming it was done by Generoso, may be
irritating to an impatient driver but it certainly
could not be considered as creating so
powerful an inducement as to incite
provocation for the other party to act
violently.
The appreciation of the ordinary mitigating
circumstances of sufficient provocation and
passion and obfuscation under Article 13,
paragraphs 4 and 6,[39] have no factual
basis. Sufficient provocation as a requisite of
incomplete self-defense is different from
sufficient provocation as a mitigating
circumstance. As an element of self-
defense, it pertains to its absence on the
part of the person defending himself; while
as a mitigating circumstance, it pertains to
its presence on the part of the offended
party. Besides, only one mitigating
circumstance can arise out of one and the
same act.[40] Assuming for the sake of
argument that the blowing of horns, cutting
of lanes or overtaking can be considered as
acts of provocation, the same were not
sufficient. The word sufficient means
adequate to excite a person to commit a
wrong and must accordingly be
proportionate to its gravity.[41] Moreover,
Generosos act of asking for an explanation
from Tangan was not sufficient provocation
for him to claim that he was provoked to kill
or injure Generoso.[42]
For the mitigating circumstance of passion
and obfuscation to be appreciated, it is
required that (1) there be an act, both
unlawful and sufficient to produce such a
condition of mind; and (2) said act which
produced the obfuscation was not far
removed from the commission of the crime
by a considerable length of time, during
which the perpetrator might recover his
normal equanimity.[43]
In the case at bar, Tangan could not have
possibly acted upon an impulse for there
107
was no sudden and unexpected occurrence
which wuld have created such condition in
his mind to shoot the victim. Assuming that
his path was suddenly blocked by Generoso
Miranda due to the firecrackers, it can no
longer be treated as a startling occurrence,
precisely because he had already passed
them and was already the one blocking their
path. Tangans acts were done in the spirit of
revenge and lawlessness, for which no
mitigating circumstance of passion or
obfuscation can arise.
With respect to the penalty, under the laws
then existing, homicide was penalized with
reclusion temporal,[44] but if the homicide
was committed with the use of an unlicensed
firearm, the penalty shall be death.[45] The
death penalty, however, cannot be imposed
on Tangan because in the meantime, the
1987 Constitution proscribed the imposition
of death penalty; and although it was later
restored in 1994, the retroactive application
of the death penalty is unfavorable to him.
Previously, the accused may be prosecuted
for two crimes: (1) homicide or murder under
the Revised Penal Code and (2) illegal
possession of firearm in its aggravated form
under P.D. 1866.[46]
P.D. 1866 was amended by R.A. No. 8294,
[47] which provides that if an unlicensed
firearm is used in murder or homicide, such
use of unlicensed firearm shall be
appreciated as an aggravating circumstance
and no longer considered as a separate
offense,[48] which means that only one
offense shall be punished murder or
homicide. However, this law cannot apply
retroactively because it will result in the
imposition on Tangan of the maximum
period of the penalty. Moreover, under Rule
110, Section 8 of the Revised Rules of
Criminal Procedure,[49] the aggravating
circumstance must be alleged in the
information. Being favorable, this new rule
can be given retroactive effect as they are
applicable to pending cases.[50] In any
case, Tangan was acquitted of the illegal
possession case.
Consequently, Tangan should be sentenced
to suffer the penalty of reclusion temporal.
Pursuant to Article 64 of the Revised Penal
Code, if the prescribed penalty is composed
of three periods, and there is neither
mitigating nor aggravating circumstance, the
medium period shall be applied. Applying the
Indeterminate Sentence law, the maximum
of the indeterminate penalty shall be that
which, in view of the attendant
circumstances, may be properly imposed,
which in this case is reclusion temporal
medium with an imprisonment range of from
fourteen (14) years, eight (8) months and
one (1) day to seventeen (17) years and four
(4) months. The minimum of the
indeterminate sentence shall be the next
lower degree which is prision mayor with a
range of from six (6) years and one (1) day
to twelve (12) years.[51] Hence, petitioner
Tangan is sentenced to an indeterminate
penalty of six (6) years and one (1) day of
prision mayor, as minimum, to fourteen (14)
years, eight (8) months and one (1) day of
reclusion temporal, as maximum.
The death indemnity of P30,000.00 was
correctly increased by the appellate court to
P50,000.00 in line with jurisprudence.[52]
Moral damages are awarded in criminal
cases involving injuries if supported by
evidence on record,[53] but the stipulation of
the parties in this case substitutes for the
necessity of evidence in support thereof.
Though not awarded below, the victims heirs
are entitled to moral damages in the amount
of P50,000.00 which is considered
reasonable considering the pain and
anguish brought by his death.[54]
WHEREFORE, the petition in G.R. No.
103613 is DISMISSED. The appealed
decision subject of G.R. No. 105830 is
AFFIRMED with the following
MODIFICATIONS:
(1) Tangan is sentenced to suffer an
indeterminate penalty of six (6) years and
one (1) day of prision mayor, as minimum, to
fourteen (14) years, eight (8) months and
one (1) day of reclusion temporal, as
maximum, with all the accessory penalties.
(2) Tangan is ordered to pay the victims
heirs P50,000.00 as civil indemnity,
P42,000.00 as funeral and burial expenses,
P5,000.00 as attorneys fees, and
P50,000.00 as moral damages.
SO ORDERED.
108
 bakery.[4] He is married to Wilma Grace information. The case then proceeded to
=== Ignas, by whom he has a son of minor be heard on the merits.

age.[5] Wilma Grace used to be the

PEOPLE VS PARANA (64 PHIL 331)
cashier of Windfield Enterprise, which is Gleaned from the records, the facts of
= = =
owned by Pauline Gumpic.[6] Pauline this case are as follows:

had a brother, Nemesio Lopate. It was

EN BANC
he whom appellant fatally shot.
Sometime in September 1995,
[G.R. Nos. 140514-15. September 30, appellants wife, Wilma Grace Ignas,
2003]
In the amended Information,[7] pursuant confided to her close friend,
to Section 14, Rule 110[8] of the 1985 Romenda[10] Foyagao, that she was
PEOPLE OF THE PHILIPPINES, plaintiff- Rules of Criminal Procedure, the having an affair with Nemesio Lopate.
appellee, vs. JUNE IGNAS y Provincial Prosecutor of Benguet [11]

SANGGINO, accused-appellant.
charged appellant as follows:

D E C I S I O N
QUISUMBING, J.:
That on or about the 10th day of March
In the amended decision[1] dated June
2, 1999, in Criminal Case No. 96-
CR-2522, the Regional Trial Court (RTC)
of La Trinidad, Benguet, Branch 8, found
appellant June Ignas y Sanggino guilty
of murder aggravated especially by the
use of an unlicensed firearm. Appellant
was initially sentenced to suffer the
penalty of reclusion perpetua,[2] but on
On the evening of October 16, 1995,
Wilma Grace, Romenda, and Nemesio
1996 at Trading Post, Km. 5, went to Manila. Romenda and Nemesio
Municipality of La Trinidad, Province of were sending off Wilma Grace at the
Benguet, Philippines, and within the Ninoy Aquino International Airport as
jurisdiction of this Honorable Court, she was leaving for Taiwan to work as a
without any authority of law or without domestic helper. Upon arrival in Manila,
any lawful permit did then and there the trio checked at Dangwa Inn, with
willfully, unlawfully and knowingly have Nemesio and Wilma Grace sharing a
in his possession, control and custody a room.[12] All three of them stayed at the
Cal. .38 hand gun and two (2) inn until October 18, 1995, when Wilma
ammunitions, (sic) which firearm and Grace left for Taiwan.[13]

motion for reconsideration by the ammunitions were used by the accused

prosecution, the penalty was upgraded in unlawfully killing NEMESIO LOPATE at Thereafter, Romenda received from
to death by lethal injection.[3] Hence, the above-mentioned place and date in Taiwan four letters written by Wilma
the case is now before us for automatic violation of the said law.
Grace on various dates. Although all the
review.
letters were addressed to Romenda, two
CONTRARY TO LAW.[9]
of them were meant by Wilma Grace to
Appellant is an elementary school be read by her paramour, Nemesio.[14]
graduate. He resided at Cruz, La Appellant was arraigned and pleaded In the other two letters, Wilma Grace
Trinidad, Benguet, where he operated a not guilty to the foregoing amended
109
instructed Romenda to reveal to
appellant her affair with Nemesio.
until things had cooled down.[21]
person who tucked a handgun into his
It was only sometime late in February
1996 that Romenda, following her
bosom friends written instructions,
informed appellant about the
extramarital affair between Wilma Grace
a glimpse of his face.[29] She
and Nemesio. Romenda informed him
that the two had spent a day and a night
together in a room at Dangwa Inn in
Manila.[15] Appellant became furious.
He declared Addan to aldaw na dayta
several years. Witness Bayanes was five
nga Nemesio, patayek dayta nga
Nemesio (There will be a day for that
Nemesio. I will kill that Nemesio).[16]
Appellant then got all the letters of
Wilma Grace from Romenda.[17]
vegetables, she was at the Trading Post,
That same week Alfred Mayamnes,
appellants neighbor who was presented
at the trial as a prosecution witness, had
a talk with appellant. Mayamnes was an
elder of the Kankanaey tribe to which
appellant belonged. He wanted to
confirm whether Nemesio Lopate, who
was likewise from the same tribe, [18]
was having an affair with appellants
Witness Manis saw that the fallen victim
spouse. Talk apparently had reached the
tribal elders and they wanted the
problem resolved as soon as possible.
[19] A visibly angry appellant confirmed
the gossip.[20] Mayamnes also testified
that he advised Nemesio to stay at the
Mountain Trail Kankanaey community
Shortly after their talk, appellant closed
down his bakeshop and offered his
equipment for sale. Among the potential
buyers he approached was Mayamnes,
but the latter declined the offer.[22]
Sometime during the first week of
March, Mayamnes saw appellant load
his bakery equipment on board a hired
truck and depart for Nueva Vizcaya.[23]
At around 10:00 p.m. of March 10, 1996,
according to another prosecution
witness, Annie Bayanes, a trader in
aided her recognition of appellant.[30]
La Trinidad, Benguet.[24] The Trading
Post is a popular depot where vegetable
growers in the Cordilleras bring their
produce late in the evenings for sale to
wholesalers and retailers. Witness
Bayanes said she was at the unloading
area (bagsakan), conversing with
another dealer at the latters booth, when
suddenly two gunshots shattered the
quiet evening.[25]
Bayanes turned towards the place
where the sound of the gunshots came
from. She testified that she saw a
person falling to the ground.[26]
Standing behind the fallen individual,
some 16 inches away,[27] was another
waistband and casually walked away.
[28]
Initially, she only saw the gunmans
profile, but when he turned, she caught
immediately recognized him as the
appellant June Ignas. She said she was
familiar with him as he was her
townmate and had known him for
or six meters away from the scene, and
the taillight of a parked jeepney, which
was being loaded with vegetables, plus
the lights from the roof of the bagsakan,
Also at the bagsakan area that night was
prosecution witness Marlon Manis. He
testified that on hearing gunshots from
the Trading Post entrance, he
immediately looked at the place where
the gunfire came from. He saw people
converging on a spot where a bloodied
figure was lying on the ground.[31]
was Nemesio Lopate, whom he said he
had known since Grade 2 in elementary
school.[32] Manis then saw another
person, some 25 meters away, hastily
walking away from the scene. He could
not see the persons face very well, but
110
from his gait and build, he identified the According to witness on the scene, Dr. Jovellanos determined the cause of
latter as his close friend and neighbor, responding policemen immediately death to be Hypovolemia due to
June Ignas.[33] Manis said that the brought the victim, Nemesio Lopate, to gunshot wound, back, right, (Point of
scene was very dimly lit and the only the Benguet General Hospital where he Entry fifth intercostal space subscapular
illumination was from the lights of was pronounced dead on arrival.[41]
area).[43] She further stated on the
passing vehicles, but he was familiar witness stand that she recovered a
with appellants build, hairstyle, and Dr. Doris C. Jovellanos, Municipal Health bullet from the victims left shoulder,
manner of walking.[34]
Officer of La Trinidad, Benguet, testified which she turned over to the police
during that trial that she conducted the investigators.[44] According to her, given
Prosecution witness Mona Barredo, a post-mortem examination of the victims the blackened edges of the gunshot
bakery worker, testified that she knew cadaver. Among her findings were:
wound at the victims back, Nemesio
appellant. She said they were co- was shot from a distance of less than
workers formerly at the Annaliza Bakery 1. Ovaloid hole, 2.0 x 5.0 cm. dms., with three (3) feet.[45]

at Km. 10, Shilan, La Trinidad, Benguet. blackened edges (1.8 x 1.3 cms. span),
[35] Barredo declared that at around on the right side of the mouth, above the On March 14, 1996, police investigators
10:30 p.m. of March 10, 1996, appellant edge of the upper lip
accompanied by one of appellants
came to her residence at Pico, La brother as well as prosecution witness
Trinidad. After being served x x x
Julio Bayacsan, a friend of appellant,
refreshments, appellant took out a went to Kayapa, Nueva Vizcaya, to invite
handgun from his jacket and removed 3. Exit hole on the left side of the mouth, appellant to shed light on the slaying of
the empty shells from the chamber.[36] 5.0 x 1.3 cm. dms., with avulsion of the Nemesio. The law enforcers found
Appellant then told her to throw the upper lip on the left side
appellant selling bread at Kayapa and
empty cartridges out of the window. brought him back to La Trinidad,
Because of nervousness she complied. x x x
Benguet.[46]

[37] Barredo also said that appellant

disclosed to her that he had just shot his 9. Circular hole, penetrating, on the Witness Bayacsan testified that shortly
wifes paramour.[38] Appellant then back, right side, 0.7 cm. x 0.7 cm. diam., after they arrived from Kayapa, he had
stayed at her house for 8 or 9 hours; he with blackened edges (0.9 x 0.9 cm. an opportunity to talk with appellant at
left only in the morning of March 11, span), at the level of the fifth intercostal the La Trinidad Police Station. There,
1996,[39] according to her. Police space, subscapular area, 13 cm. from appellant disclosed to this witness that
investigators later recovered the spent the midline, directed to the left side of he shot and killed Nemesio.[47]
gun shells from witness Barredos sweet the chest, 38.0 cm. from the embedded Bayacsan, however, did not inform the
potato garden.[40]
bullet slug of the left shoulder.[42]
police about appellants revelation as he

111
considered appellant his good friend.
[48]
added, he immediately seized the
Prosecution witness Pauline Gumpic,
the victims sister, testified that she and
appellant had a private talk, while the
latter was in police custody, and
appellant admitted to her that he killed
her brother.[49] Gumpic declared that
appellant revealed to her that he shot
Nemesio for having illicit relations with
appellants wife and failing to ask for his
forgiveness.[50]
1996. He and Anoma were engrossed in
SPO4 Arthur Bomagao[51] of the La
Trinidad police, who headed the team
that investigated the fatal shooting of
Reclusion Perpetua. He is further
Nemesio, declared on the stand that
appellant voluntarily admitted to him
that he shot the victim with a .38 caliber
handgun.[52] Bomagao further testified
that appellant surrendered to him the
letters of Wilma Grace, wherein the latter
admitted her affair with Nemesio.[53]
proposed a partnership with appellant in
Appellant interposed the defense of
alibi. Sometime during the last week of
February 1996, he said, he entered into
a partnership with a friend and fellow
baker, Ben Anoma, to operate a bakery
in Kayapa, Nueva Vizcaya.[54] Appellant
claimed that he was having a hard time
operating his bakeshop in La Trinidad as
he had no helpers. When Anoma
proposed a business arrangement, he
defense and sustained the prosecutions
opportunity.[55] On March 8, 1996, he
and Anoma then transferred his
equipment to Anomas bakery in Kayapa,
[56] which is some four (4) to five (5)
hours away from La Trinidad, according
to appellant. He averred that he was
baking bread with Anoma in Kayapa on
the night Nemesio was killed.[57] Under
oath, appellant said that he never left
Kayapa since his arrival on March 8,
aggravating circumstance of the use of
baking and marketing their produce, he
testified, until the policemen from La
Trinidad brought him back to Benguet
for questioning on March 14, 1996.[58]
Defense witness Ben Anoma
corroborated appellants alibi. Anoma
declared that during the last week of
February 1996, he met with appellant in
La Trinidad. There, the witness said, he
2. P1,800,000.00 for unearned income;
the baking business to be based in
Kayapa.[59] Appellant agreed and on
March 8, 1996, they transferred
appellants equipment to Kayapa.[60]
They immediately commenced their
operations and on the evening of March
10, 1996, he and appellant baked bread
at his bakery in Kayapa until 11:00 p.m.,
when they rested for the night.[61]
The trial court disbelieved appellants
version. Its initial judgment reads:
WHEREFORE, premises considered, the
accused June Ignas is hereby found
GUILTY beyond reasonable doubt of the
crime of MURDER as defined and
penalized under Article 248 of the
Revised Penal Code, and considering
the aggravating circumstances of
treachery, nighttime and the special
an unlicensed firearm, without any
mitigating circumstance, he is hereby
sentenced to suffer the penalty of
sentenced to pay the heirs of the
VICTIM the following sums:
1. P150,000.00 for funeral expenses and
those incurred for and during the wake;
3. P50,000.00 as death compensation
established by jurisprudence; and
4. P50,000.00 as and for moral
damages; and
5. P20,000.00 as attorneys fees.
Costs against the accused.
112
 ADMISSIONS MADE BY ACCUSED-
SO ORDERED in Chambers this 18th 2. P2,040,000.00 for unearned income;
APPELLANT DESPITE ITS BEING
day of February 1999 at La Trinidad, HEARSAY IN NATURE AND IN
Benguet, Philippines.[62]
3. P50,000.00 as death compensation VIOLATION OF HIS RIGHTS UNDER
established by jurisprudence; and
CUSTODIAL INVESTIGATION.

Both the prosecution and the defense

filed their respective motions for 4. P50,000.00 as and for moral III

reconsideration. The prosecution sought damages; and

the imposition of the death penalty.[63] THE TRIAL COURT GRAVELY ERRED IN
The defense prayed for acquittal on the 5. P20,000.00 as attorneys fees.
NOT GIVING PROBATIVE VALUE TO
ground of reasonable doubt.
THE DEFENSE OF ALIBI INTERPOSED
Costs against the accused.
BY ACCUSED-APPELLANT.

On June 2, 1999, the trial court granted

the prosecutions motion. It amended its SO ORDERED in Chambers.[64]
IV

judgment to read as follows:

Hence, this automatic review, with ASSUMING ARGUENDO THAT THE

WHEREFORE, premises considered, the appellant imputing the following errors ACCUSED-APPELLANT IS GUILTY, THE
accused June Ignas is hereby found to the court a quo:
TRIAL COURT GRAVELY ERRED WHEN
GUILTY beyond reasonable doubt of the IT RULED THAT THE KILLING OF THE
crime of MURDER as defined and I
DECEASED WAS ATTENDED BY
penalized under Article 248 of the EVIDENT PREMEDITATION,
Revised Penal Code, and considering THE TRIAL COURT GRAVELY ERRED IN TREACHERY AND NIGHTTIME.

the aggravating circumstances of FINDING THE ACCUSED-APPELLANT

treachery, nighttime and the special GUILTY BEYOND REASONABLE V

aggravating circumstance of the use of DOUBT OF THE CRIME OF MURDER

an unlicensed firearm, without any DESPITE THE WEAKNESS OF THE THE TRIAL COURT COMMITTED
mitigating circumstance, he is hereby CIRCUMSTANTIAL EVIDENCE OF THE REVERSIBLE ERROR WHEN IT
sentenced to suffer the penalty of death PROSECUTION.
APPRECIATED THE ALLEGED USE OF
by lethal injection. He is further AN UNLICENSED .38 CALIBER
sentenced to pay the heirs of the victim II
FIREARM AS AN AGGRAVATING
the following sums:
CIRCUMSTANCE IN THE COMMISSION
THE TRIAL COURT GRAVELY ERRED IN OF THE CRIME OF MURDER WITHOUT
1. P150,000.00 for funeral expenses and GIVING EVIDENTIARY WEIGHT TO THE ANY FACTUAL AND LEGAL BASIS.

those incurred for and during the wake;

ALLEGED EXTRA-JUDICIAL
113
VI
Assuming arguendo that the evidence
on record suffices to sustain the
THE TRIAL COURT COMMITTED appellants conviction for the unlawful
REVERSIBLE ERROR WHEN IT DID killing of Nemesio Lopate, the question
NOT APPRECIATE IN FAVOR OF THE arises: Was the killing murder as found
ACCUSED-APPELLANT THE by the trial court or mere homicide?
MITIGATING CIRCUMSTANCES OF Note that the amended information
IMMEDIATE VINDICATION OF A GRAVE under which the appellant stands
OFFENSE, PASSION AND charged does not, unlike the original
the trial court to consider the same in
adjudging appellant guilty of murder. As
worded, we find that the amended
information under which appellant was
charged and arraigned, at best indicts
him only for the crime of homicide. Any
conviction should, thus, fall under the
scope and coverage of Article 249[67] of
the Revised Penal Code.

OBFUSCATION AND VOLUNTARY information, charge appellant with

SURRENDER.
murder but with mere unlawful killing As for the separate case for illegal
albeit through the use of an unlicensed possession of firearm, we agree with the
VII
firearm. Note further that the amended trial courts order to dismiss the
information does not definitely and information for illegal possession of
THE TRIAL COURT COMMITTED categorically state that the unlawful firearm and ammunition in Criminal Case
REVERSIBLE ERROR WHEN IT killing was attended by the aggravating No. 97-CR-2753.[68] Under R.A. No.
AWARDED EXCESSIVE DAMAGES IN or qualifying circumstances of treachery, 8294,[69] which took effect on July 8,
THE FORM OF FUNERAL EXPENSES evident premeditation, and nocturnity.
1997, where murder or homicide is
AND UNEARNED INCOME OF THE committed with the use of an unlicensed
DECEASED WHICH WERE NOT The 2000 Revised Rules of Criminal firearm, the separate penalty for illegal
SUFFICIENTLY PROVEN.[65]
Procedure requires that the qualifying possession of firearm shall no longer be
and aggravating circumstances must be imposed since it becomes merely a
Appellants assigned errors may be specifically alleged in the information. special aggravating circumstance.[70]
reduced to the following pertinent [66] Although the Revised Rules of This Court has held in a number of
issues: (1) the nature of the crime Criminal Procedure took effect only on cases[71] that there can be no separate
committed, if any; (2) the sufficiency of December 1, 2000 or long after the fatal conviction of the crime of illegal
the prosecutions evidence to prove shooting of Nemesio Lopate, as a possession of firearm where another
appellants guilt; (3) the correctness of procedural rule favorable to the crime, as indicated by R.A. No. 8294, is
the penalty; and (4) the propriety of the accused, it should be given committed. Although R.A. No. 8294 took
damages awarded.
retrospective application. Hence, absent effect over a year after the alleged
specific allegations of the attendant offense was committed, it is
1. Murder or Homicide
circumstances of treachery, evident advantageous to the appellant insofar as
premeditation, and nocturnity in the it spares him from a separate conviction
amended information, it was error for for illegal possession of firearms and
114
thus should be given retroactive commotion and fear distracted their
application.[72]
powers of observation. Appellant insists person tucking a gun in his waistband
that given these considerations, the
2. Sufficiency of the Prosecutions testimonies of Bayanes and Manis failed
Evidence
to show that he was at the scene of the ten (10) years before the incident and
crime, much less prove that he was the
But is the prosecutions evidence gunman.
She was only five or six meters away
sufficient to sustain a conviction for
homicide?
For the appellee, the Office of the able to fully look at the face of the
Solicitor General (OSG) contends that
Appellant primarily contests the the failure of Manis to see the actual
accuracy of the identification made by shooting is irrelevant, as such was not
the prosecution witnesses who testified the purpose for which his testimony was
that they saw him at the locus criminis, offered in evidence. Rather, Manis
tucking a gun in his pants and casually testimony was meant to provide
walking away. For one, he contends that circumstantial evidence tending to show
the prosecution witnesses who were the physical description of Nemesios
present at the scene did not in fact see attacker, and not as an eyewitness
appellant as the person who allegedly testimony to positively identify said
shot the victim. Witness Marlon Manis assailant. Neither was Bayanes
was not certain that the person he saw presented to testify as an eyewitness to
walking away from the fallen victim was the shooting, but to declare that she got
appellant. As per Manis own admission, a clear look at the face of the suspected
he merely presumed that it was gunman.
and identification. Under the
appellant. As to witness Annie Bayanes,
her identification of appellant as the We note that at the heart of the
assailant was equally doubtful. The fact prosecutions case is the familiarity of
is she did not see the alleged gunmans Annie Bayanes and Marlon Manis with
face, considering that the only appellant. Absent this familiarity, the
illumination on the scene was a vehicles prosecutions theory that circumstantial
witnesses to recognize him as the
and walking away from the fallen victim.
Bayanes had known appellant for some
even described him as a good man.[73]
from the scene of the crime and was
person tucking a gun in his pants and
walking away. Familiarity with the
physical features, particularly those of
the face, is actually the best way to
identify the person.[74] That the only
illumination in the area came from the
taillight of a parked vehicle and the
lights on the roof of the bagsakan does
not discredit her account. We have held
that moonlight,[75] starlight,[76]
kerosene lamps,[77] a flashlight,[78] and
lights of passing vehicles[79] may be
adequate to provide illumination
sufficient for purposes of recognition
circumstances of these cases, this Court
believes that Bayanes was in the
position and had a fair opportunity to
identify appellant as the person leaving
the crime scene with a gun tucked in his
waist.

taillight. Appellant stresses that both
Bayanes and Manis were in a state of
excitement and nervousness as a result
of the incident, hence the resultant
evidence shows that appellant killed
Nemesio would collapse like a house of
cards. It was precisely this familiarity
with appellant, which enabled said
Her testimony was buttressed by that of
witness Marlon Manis. A former
neighbor of appellant, he had known
115
appellant since 1993. He was a frequent
customer at appellants bakery. In the
rural areas, people tend to be more
familiar with their neighbors. This
familiarity may extend to body
movements, which cannot easily be
effaced from memory. Hence, Manis
testimony that he could recognize
appellant even just from his build and
manner of walking is not improbable.
His declaration that he was some
twenty-five (25) meters away from the
person walking away from the victim
does not make recognition far-fetched.
Once a person has gained familiarity
with another, identification is an easy
after the witnesses for the prosecution
task, even from that distance.[80]
Evidence should only be considered for
the purpose it was formally offered.[81]
As the Solicitor General points out, the
statements of Bayanes and Manis were
not offered to positively identify
appellant as the assailant, but to provide
circumstantial evidence concerning
Nemesios assailant, tending to prove
that appellant did shoot the victim.
Thus, the court a quo committed no
reversible error in giving weight and
credence to the testimonies of Bayanes
and Manis for the stated purposes
therefor.
an honest misapprehension of fact on
the elements of the crime. It is axiomatic
Appellant next assails the testimonies of
the following prosecution witnesses: (1)
Pauline Gumpic for being inconsistent
and flawed with contradictions; (2) Annie
Bayanes and Julio Bayacsan for their
unexplained delay in giving their
respective sworn statements to the
police; and (3) Mona Barredo for flip-
flopping with respect to the alleged
admission to her by appellant and how
the police investigators knew about said
admission, after she claimed that she
did not tell anyone about his revelation.
Appellant submits that the trial court
erred in giving weight to the
aforementioned testimonies.
had testified. It does not follow,
For appellee, the OSG argues that with
respect to Gumpics alleged
contradictions, they refer only to
unimportant and collateral matters; they
do not affect her credibility. With respect
to the delay or vacillation by Bayacsan
and Bayanes in giving their statements
to the authorities, the OSG points out
that a reading of their declarations in
court will show that the alleged delay
was adequately explained. As to
Barredos testimony, a closer reading of
her supposed flip-flopping shows that
the alleged contradictions were due to
matters, which have nothing to do with
her part.
When the issue boils down to the
credibility of witnesses, the appellate
court will not generally disturb the
findings of the trial court because the
latter is in the vantage position of
observing witnesses through the various
indicia of truthfulness or falsehood.[82]
However, this rule is not absolute. One
exception is where the judge who wrote
the decision did not personally hear the
prosecutions evidence.[83] In this case,
the records show that Judge Angel V.
Colet, who authored the assailed
decision, took over from Judge Benigno
M. Galacgac only on April 29, 1997 or
however, that a judge who was not
present at the trial cannot render a just
and valid judgment. The records and the
transcripts of stenographic notes are
available to him as basis for his
decision.
After going over the transcripts of the
witnesses testimonies, we find no
reason to disturb the findings of the trial
court. With respect to the statements of
Gumpic, we agree with the Solicitor
General that alleged inconsistencies
refer only to irrelevant and collateral
that slight variations in the testimony of
116
a witness as to minor details or collateral
matters do not affect his or her
credibility as these variations are in fact
indicative of truth and show that the
witness was not coached to fabricate or
dissemble.[84] An inconsistency, which
has nothing to do with the elements of a
crime, is not a ground to reverse a
conviction.[85]
confronted with a strange, startling, or
We likewise find no basis for appellants
contention that Bayanes and Bayacsan
failed to give a satisfactory explanation
for the delay or vacillation in disclosing
to the authorities what they knew.
Bayanes gave a satisfactory reason for
her delay in reporting to the authorities
what she knew. She had simply gone
about her normal business activities for
some months, unaware that a case had
been filed concerning the killing of
Nemesio. It was only nine (9) months
after the incident that she read a notice
for help posted by the victims relatives
at the Trading Post, appealing to
those made to appellant to Bayacsan
possible witnesses to the killing to come
forth and assist them in their quest for
justice. It was only then that she
decided to reveal to the authorities what
she knew.
her that he killed the victim. We find
As to Bayacsan, he candidly admitted in
court that he considered appellant his
friend and he wanted to protect him and
hence, he only disclosed appellants
admission to him when the police
started questioning him. There is no rule
that the suspect in a crime should
immediately be named by a witness.[86]
Different people react differently to a
given situation and there is no standard
form of human behavior when one is
need not necessarily affect their
frightful experience.[87] The Court
understands the natural reluctance or
aversion of some people to get involved
in a criminal case.[88] More so where, as
in these cases, a townmate of Bayanes
and Bayacsan is involved. We have
taken notice that when their townmates
are involved in a criminal case, most
people turn reticent.[89] Hence, the
failure of Bayanes and Bayacsan to
immediately volunteer information to the
police investigators will not lessen the
probative value of their respective
testimonies. The delay, having been
satisfactorily explained, has no effect on
their credibility.[90]
We have likewise closely scrutinized the
testimony of Mona Barredo regarding
the alleged admission by appellant to
nothing flip-flopping about her
testimony. Instead, we find a witness
who admitted she was nervous that she
might not be able to answer all the
questions.[91] Said nervousness was
engendered by her erroneous belief that
to be a credible witness, she must have
personal knowledge of the crime.[92]
Even the most candid witnesses make
mistakes and may give some
contradictory or inconsistent
statements, but such honest lapses
credibility. Ample margin should be
accorded a witness who is tension-filled
with the novelty of testifying before a
court.[93]
Appellant further contends that the trial
court erred in giving credence to the
verbal admissions of guilt he made to
Gumpic and SPO4 Bomagao inside the
police station since said admissions are
inadmissible in evidence as
uncounseled confessions.
The OSG submits that said verbal
admissions of complicity, as well as
and Barredo, are admissible as
statements forming part of the res
gestae. We agree on this point with the
OSG.
The requisites of res gestae are: (1) the
principal act or res gestae must be a
startling occurrence; (2) the statement is
spontaneous or was made before the
117
declarant had time to contrive or devise
a false statement, and the statement
Lopate fall to the ground;
was made during the occurrence or
immediately prior or subsequent to
thereto; and (3) the statement made
must concern the occurrence in
question and its immediately attending
circumstances.[94] All these elements
are present in appellants verbal
admission to Barredo that he killed the
that of appellant walking away from the
victim when he went to the latters house
half an hour after the fatal shooting of
Nemesio.
convict if the following requisites are
The verbal admission by appellant to
Barredo was made before appellant had
the time and opportunity to contrive a
falsehood. Similar statements have been
held to be part of the res gestae: (1) a
childs declaration made an hour after an
alleged assault;[95] (2) the testimony of
a police officer as to what the victim
revealed to him some 30 minutes after
for the night;
the commission of an alleged crime;[96]
and (3) a victims declaration made some
5 to 10 minutes after an alleged felony
took place.[97] Note that since
appellants admission was not solicited
by police officers in the course of a
found two (2) bullet entry wounds on the
custodial investigation, but was made to
a private person, the provisions of the
Bill of Rights on custodial investigation
do not apply. The Rules of Court[98]
provides that an admission made to a
private person is admissible in evidence
against the declarant.[99]
Prosecutions evidence here is
admittedly circumstantial. But in the
absence of an eyewitness, reliance on
circumstantial evidence is inevitable.
[100] Resort thereto is essential when
the lack of direct evidence would result
in setting a felon free.[101]
Circumstantial evidence suffices to
5. At around 10:30 p.m. of March 10,
met: (1) there is more than one
circumstance; (2) the facts from which
the inferences are derived are proven;
and (3) the combination of all the
circumstances is such as to produce a
conviction beyond reasonable doubt.
[102] In our mind, the following pieces of
circumstantial evidence show with moral
certainty that appellant was responsible
for the death of Nemesio:
1. Appellant had the motive to kill
Nemesio Lopate for having an affair with
his wife, and appellant had openly
expressed his desire and intention to do
so;
2. At around 10:00 p.m. of March 10,
1996, Annie Bayanes and Marlon Manis
heard two gun shots at the Trading Post,
La Trinidad, Benguet and saw Nemesio
3. Bayanes saw appellant behind the
victim, tucking a gun into his waistband,
and walking away;
4. From another angle, Manis also saw a
person whose gait and built resembled
crime scene;
1996, appellant went to the house of
Mona Barredo, brought out a handgun,
emptied it of two spent .38 caliber shells
and instructed Barredo to throw the
shells out of the window, which she did;
6. Appellant then told Barredo that he
had shot and killed his wifes paramour,
after which he stayed at Barredos house
7. On March 11, 1996, Dr. Doris C.
Jovellanos, Municipal Health Officer of
La Trinidad, Benguet recovered a .38
caliber slug from Nemesios corpse and
said cadaver;
8. On March 18, 1996, police
investigators, assisted by Barredo,
recovered two (2) spent .38 caliber
118
shells from Barredos sweet potato
patch, immediately outside her
residence wherein appellant had slept a
week before.
scene of the crime.[105] Physical
The foregoing circumstances clearly
show that appellant had the motive, the
opportunity, and the means to commit
the crime at the place and time in
question. Simply put, the circumstantial
evidence adduced by the prosecution
has successfully overcome the claim of
innocence by appellant. Under the
proved circumstances, appellants
defense of alibi is untenable. More so, in
this situation where prosecution witness
Bayanes unflinchingly declared that she
saw appellant standing behind the
necessary quantum of proof.
victim, tucking a gun in his pants,
moments after the latter was shot. As
we held in People v. Salveron,[103] and
reiterated in People v. Sesbreo,[104]
special aggravating circumstance of use
where an eyewitness saw the accused
with a gun, seconds after the gunshot
information, the matter must be proven
and after the victim fell to the ground,
the reasonable conclusion is that said
accused killed the victim.
homicide, it follows that he cannot,
Appellants alibi cannot prevail over the
positive testimony of Bayanes
concerning appellants identification and
presence at the crime scene. Basic is
the rule that for alibi to prosper, the
accused must prove that he was
somewhere else when the crime was
committed and that it was physically
impossible for him to have been at the
More specifically, may the special
impossibility refers to the distance
between the place where the appellant
was when the crime transpired and the
place where it was committed, as well
as the facility of access between the two
places.[106] In these cases, the defense
admitted that the distance between La
Trinidad, Benguet and Kayapa, Nueva
Vizcaya is 79 kilometers, which can be
negotiated in 4 or 5 hours.[107] Clearly,
it was not physically impossible for
appellant to be at the locus criminis at
the time of the killing. Hence, the
defense of alibi must fail.
In sum, we find that the prosecutions
evidence suffices to sustain the
appellants conviction for homicide.
3. Crime and its Punishment
As appellant can only be convicted of
prove: (1) the existence of the subject
under the provisions of RA No. 7659, be
sentenced to suffer the death penalty.
The penalty for homicide under Article
249 of the Revised Penal Code is
reclusion temporal. Our task now is to
determine whether there are aggravating
or mitigating circumstances which could
modify the penalty.
aggravating circumstance of use of an
unlicensed firearm be taken against the
appellant?
Appellant argues that the trial court
erred in appreciating the special
aggravating circumstance of use of
unlicensed firearm in the present case.
Like the killing, said aggravating
circumstance must likewise be proved
beyond reasonable doubt, says the
appellant. On this point, he adds, the
prosecution failed to adduce the
We find merit in the appellants
contentions. It is not enough that the
of unlicensed firearm be alleged in the
with the same quantum of proof as the
killing itself. Thus, the prosecution must
firearm; and (2) the fact that the accused
who owned or possessed it does not
have the corresponding license or
permit to own or possess the same.[108]
The records do not show that the
prosecution presented any evidence to
prove that appellant is not a duly
119
licensed holder of a caliber .38 firearm.
The prosecution failed to offer in
evidence a certification from the
Philippine National Police Firearms and
Explosives Division to show that
appellant had no permit or license to
own or possess a .38 caliber handgun.
Nor did it present the responsible police
officer on the matter of licensing as a
prosecution witness. Absent the proper
evidentiary proof, this Court cannot
immediate. This view is not entirely
validly declare that the special
aggravating circumstance of use of
unlicensed firearm was satisfactorily
established by the prosecution. Hence
such special circumstance cannot be
considered for purposes of imposing the
penalty in its maximum period.
infidelity. Nor could passion and
Coming now to the obverse side of the
case, is the appellant entitled to benefit
from any mitigating circumstance?
Appellant became aware of the
Appellant, firstly contends that assuming
without admitting that he is guilty, the
lower court should have considered at
least the mitigating circumstance of
immediate vindication of a grave offense
as well as that of passion and
obfuscation. Appellant points out that
the victims act of maintaining an
adulterous relationship with appellants
wife constituted a grave offense to his
honor, not to mention the shame,
anguish, and anxiety he was subjected
to. Even the mere sight of the victim
must have triggered an uncontrollable
emotional outburst on appellants part,
so that even a chance meeting caused
in him an irresistible impulse powerful
enough to overcome all reason and
restraint. Secondly, appellant points out
that the trial court failed to consider his
voluntary surrender as a mitigating
circumstance.
The Solicitor General counters that there
was literally no immediate vindication to
speak of in this case. Appellant had
sufficient time to recover his serenity
following the discovery of his wifes
between the grave offense and the
obfuscation be appreciated in appellants
favor because the killing was not
proximate to the time of the offense.
prompted proximately though not
treatment offensive to his dignity as a
husband and to the peace and
tranquility of his home two weeks earlier.
This interval between the revelation of
his wifes adultery and the fatal shooting
was ample and sufficient for reason and
self-control to reassert themselves in
appellants mind. As to the mitigating
circumstance of voluntary surrender, the
OSG stresses that his supposed
surrender at Kayapa, Nueva Vizcaya was
actually due to the efforts of law
enforcers who came looking for him.
There he did not resist, but lack of
resistance alone is not tantamount to
voluntary surrender, which denotes a
positive act and not merely passive
conduct.
According to the OSG, for the mitigating
circumstance of vindication of a grave
offense to apply, the vindication must be
accurate. The word immediate in the
English text is not the correct translation
of the controlling Spanish text of the
Revised Penal Code, which uses the
word proxima.[109] The Spanish text, on
this point, allows a lapse of time
actual vindication.[110] Thus, in an
earlier case involving the infidelity of a
wife, the killing of her paramour
immediately by the desire to avenge the
wrong done, was considered an
extenuating circumstance in favor of the
accused.[111] The time elapsed
between the offense and the suspected
cause for vindication, however, involved
only hours and minutes, not days.
Hence, we agree with the Solicitor
General that the lapse of two (2) weeks
between his discovery of his wifes
infidelity and the killing of her supposed
paramour could no longer be considered
120
proximate. The passage of a fortnight is
more than sufficient time for appellant to
have recovered his composure and
assuaged the unease in his mind. The
established rule is that there can be no
immediate vindication of a grave offense
when the accused had sufficient time to
years, eight (8) months and one (1) day
recover his serenity.[112] Thus, in this
case, we hold that the mitigating
circumstance of immediate vindication
of a grave offense cannot be considered
in appellants favor.
circumstance. On this point, the
We likewise find the alleged mitigating
circumstance of passion and
obfuscation inexistent. The rule is that
the mitigating circumstances of
vindication of a grave offense and
passion and obfuscation cannot be
claimed at the same time, if they arise
from the same facts or motive.[113] In
other words, if appellant attacked his
victim in proximate vindication of a
grave offense, he could no longer claim
in the same breath that passion and
obfuscation also blinded him. Moreover,
for passion and obfuscation to be well
founded, the following requisites must
support the claim.[117] The records
concur: (1) there should be an act both
unlawful and sufficient to produce such
condition of mind; and (2) 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 moral equanimity.[114] To
repeat, the period of two (2) weeks
which spanned the discovery of his
wifes extramarital dalliance and the
killing of her lover was sufficient time for
appellant to reflect and cool off.
Appellant further argues that the lower
court erred in failing to consider
voluntary surrender as a mitigating
Appellant and the Solicitor General are
following requirements must be
satisfied: (1) the offender has not
actually been arrested; (2) the offender
surrendered himself to a person in
authority; and (3) the surrender was
voluntary.[115] Records show, however,
that leaflets and posters were circulated
for information to bring the killer of
Nemesio to justice. A team of police
investigators from La Trinidad, Benguet
then went to Kayapa, Nueva Vizcaya to
invite appellant for questioning. Only
then did he return to Benguet. But he
denied the charge of killing the victim.
Clearly, appellants claimed surrender
was neither spontaneous nor voluntary.
Absent any aggravating or mitigating
circumstance for the offense of
homicide the penalty imposable under
Art. 64 of the Revised Penal Code is
reclusion temporal in its medium period.
Applying the Indeterminate Sentence
Law, the penalty which could actually be
imposed on appellant is an
indeterminate prison term consisting of
eight (8) years and one (1) day of prision
mayor as minimum to fourteen (14)
of reclusion temporal as maximum.
4. Proper Award of Damages
one in contending that the trial court
awarded excessive actual damages
without adequate legal basis. Thus, the
amount of P150,000.00 was awarded for
funeral and burial expenses without any
supporting evidence on record.[116]
This cannot be sustained in this review.
In order for actual damages to be
recovered, the amount of loss must not
only be capable of proof but must
actually be proven with reasonable
degree of certainty, premised upon
competent proof or best evidence
obtainable of the actual amount thereof,
such as receipts or other documents to
clearly show in this case that only the
amount of P7,000 as funeral expenses
was duly supported by a receipt.[118]
Hence, the award of actual damages
should be limited to P7,000 only.
121
Appellant further contests the award of
P2,040,000 for loss of earning capacity
as unconscionable. Since the victims
widow could not present any income tax
return of her husband to substantiate
her claim that his net income was
P60,000 annually, then according to
appellant, there is no basis for this
award at all. At best, appellant says,
The Death Certificate of Nemesio Lopate
shows that he died at the age of 29.
[119] His widows detailed testimony
shows that their average annual net
income from vegetable farming was
P60,000.[120] The victims share of the
annual net income from the couples
farm is half thereof, or P30,000. Using
The award of P20,000 in attorneys fees
should be maintained. Records show
that the victims widow had to hire the
services of a private prosecutor to
actively prosecute the civil aspect of this
case,[121] and in line with Article 2208
of the Civil Code,[122] reasonable
attorney fees may be duly recovered.

only temperate or nominal damages the American Expectancy Table of

may be awarded.
Mortality, the life expectancy of the WHEREFORE, the judgment of the
victim at age 29 is set at 34 years.
Regional Trial Court of La Trinidad,
The OSG responds that the award for Benguet, Branch 8, in Criminal Case No.
loss of earning capacity has adequate Therefore, total loss of Earning Capacity 96-CR-2522 is MODIFIED as follows:

basis as the prosecution presented (X) should be computed as follows:

sufficient evidence on the productivity of Appellant June Ignas y Sanggino is

the landholdings being tilled by the X = 2/3 (80-29) x P30,000
found GUILTY beyond reasonable doubt
deceased and the investments made by of the crime of HOMICIDE as defined
the Lopate family from their income. X = 2/3 (51) x P30,000
and penalized under Article 249 of the
Hence, said the OSG, it was not a Revised Penal Code, as amended. There
product of sheer conjecture or X = 34 x P30,000
being neither aggravating nor mitigating
speculation. Nonetheless, the OSG circumstance, he is hereby sentenced to
submits that the original amount of X = P1,020,000
suffer an indeterminate penalty of ten
P1,800,000 for loss of earning capacity (10) years and one (1) day of prision
should be restored as it is this amount This amount should form part of the mayor as minimum, to fourteen (14)
which takes into account only a damages awarded to the heirs.
years, eight (8) months, and one (1) day
reasonable portion of annual net income of reclusion temporal as maximum.

which would have been received as We sustain the award of P50,000 as

support by the heirs.
indemnity ex delicto. But there being no Appellant June Ignas y Sanggino is
testimony or other proof thereon, the ORDERED TO PAY the heirs of the
In setting said award at P2,040,000, award of P50,000 as moral damages victim, Nemesio Lopate, the following
amended from P1,800,000, for lost cannot now be sustained. Instead, sums: a) P7,000 as actual damages; b)
earnings, the trial court took note of the temperate damages in the amount of P1,020,000 for loss of earning capacity;
following factors in its computations:
P25,000 should be awarded.
c) P50,000 as civil indemnity; d) P25,000
122
as temperate damages; and e) P20,000 murder, allegedly committed as follows: crime of MURDER, qualified by
as attorneys fees. Costs de oficio.
Sjcj
treachery, and is meted the penalty of
reclusion perpetua and to indemnify the
SO ORDERED.
"On June 29, 1991, at about 7:00 heirs of the deceased ROLANDO
o'clock in the evening, at Poblacion, El MANABAT the jurisprudential sum of fifty
= = =
Salvador, Misamis Oriental, which is thousand (P50,000.00) pesos, without
within the jurisdiction of the Honorable subsidiary imprisonment in case of
TARAYA GR 13551
Court, the above-named accused, with insolvency and to pay the cost of the
intent to kill and treachery did, then and suit.

===
there, wilfully, unlawfully and feloniously
and with the use of his armalite rifle, SO ORDERED."[4]

SECOND DIVISION
shoot at one Orlando[1] Manabat who
was just standing on the highway The records disclose that on June 29,
[G.R. No. 117954. April 27, 2000]
waiting for a ride towards home, thus, 1991, at around seven o'clock in the
hitting and wounding the latter on the evening, Rolando Manabat, Oscar
PEOPLE OF THE PHILIPPINES, plaintiff- right leg or thigh, which caused his Manabat, Bartolome Nabe, and
appellee, vs. ORLANDO ACURAM, death the following day.
Peterson Valendres, after the day's
accused-appellant.
work, proceeded to the market in El
CONTRARY TO and in violation of Salvador, Misamis Oriental, to buy fish.
D E C I S I O N
Article 248, paragraph 1, of the Revised Since no fish was available at that time,
Penal Code.[2]
they decided to head for home instead.
QUISUMBING, J.:
They went to the national highway,
Upon arraignment appellant, assisted by stood at the right side facing east
On appeal is the decision rendered on counsel, entered a plea of not guilty to towards the direction of Cagayan de Oro
August 24, 1994, by the Regional Trial the charge.[3] Thereafter, trial on the City and waited for a ride there. They
Court of Cagayan de Oro City, Branch merits ensued. Subsequently, the trial flagged down an approaching
22, in Criminal Case No. 91-1161, court rendered judgment, disposing as passenger jeepney which, however,
finding accused-appellant Orlando follows: Scjj
swerved dangerously towards them. At
Acuram guilty of murder. Supreme
this juncture, Rolando Manabat shouted
"WHEREFORE, in the light of the at the jeep "Pesteng yawa-a kamo,
On September 30, 1991, Assistant foregoing facts, convincingly proved by Manligis man kamo " (You devils, why
Provincial Prosecutor Benber Apepe the prosecution, the accused, did you try to run over us?). A passenger
charged appellant with the crime of ORLANDO ACURAM, is hereby found inside the jeepney shouted back,
guilty beyond reasonable doubt, of the "Noano man diay, isog mo?" (Why? Are
123
you brave?). Immediately thereafter, two
gunshots rang out in the air,
accompanied by sparks coming from
the front right side of the jeepney. Then
Rolando shouted, "Agay. I was shot."
The vehicle did not stop but instead
speeded towards the direction of
Cagayan de Oro City. Wounded on the
right knee, Rolando was brought by his
companions to the Cagayan de Oro
father-in-law. Moreover, he said that the
Medical Center. Later on, they were
informed that Rolando needed blood
transfusion and so they transferred him
at around 11:25 P.M. to the Northern
Mindanao Regional Hospital in the same
city. Jjsc
421st PNP Company based at San
Upon arrival at the hospital, Rolando
was examined by Dr. Ismael Naypa, Jr.
The doctor found the victim's blood
pressure to be just forty over zero (40/0)
and the victim's right leg was heavily
bandaged. He decided to operate on the
victim when the latter's blood pressure
stabilized. At about 5:00 A.M. the
following day, the victim underwent
surgery. Unfortunately, the victim died at
around 11:00 A.M. Dr. Naypa later
testified that the cause of Rolando's
death was "secondary to huddle
respiratory syndrome secondary to
blood loss, secondary to gunshot
wounds", or briefly, massive loss of
blood due to gunshot wound. He stated
that under normal circumstances, the
wound would not necessarily cause
death but in this case where the wound
transected the major part of the leg, the
wound was fatal. He clarified that the
victim sustained only one gunshot
wound which entered at the front portion
of the right knee and exited at the back
of the right knee, causing two wounds.
[5]
The El Salvador police conducted
investigation on the incident. It was
discovered that appellant Orlando
Acuram, a policeman assigned with the
defense weak, self-serving and
Martin, Villanueva, Misamis Oriental,
was among the passengers of the errant
jeepney. He was seated at the front,
right side of the jeepney and was the
only one among its passengers who was
carrying a firearm. Pending investigation,
he was restricted to the camp effective
July 1, 1991, upon orders of his
commanding officer, Major Rodolfo De
La Piedra.[6] Appellant was later
surrendered by his commanding officer
to the custody of the court on the basis
of the warrant of arrest issued by MCTC
Judge Evelyn Nery.[7] On motion by the
prosecution and without objection from
the defense, the trial court suspended
appellant from the service and ordered
his detention at the provincial jail.[8]
During the trial, appellant admitted that
he was on board the mentioned jeepney
and had a gun at that time but denied
firing it. He claimed that it was
impossible for him to fire his rifle during
that time since he was sitting at the front
seat of the jeepney, sandwiched
between the driver and the latter's
rifle was locked and wrapped by his
jacket and its barrel was even pointed
towards the driver.[9]
The trial court found the version of the
unreliable. On the basis of the evidence
presented by the prosecution, the court
found appellant guilty as charged.
Insisting on his innocence, appellant
readily filed his notice of appeal.[10] In
his brief, appellant raises the following
errors allegedly committed by the trial
court: Edpmis
"I
THE TRIAL COURT GRAVELY ERRED IN
CONCLUDING THAT ACCUSED
APPELLANT TOOK FLIGHT OR
ESCAPED AFTER THE NIGHT OF THE
INCIDENT OR IN FAILING TO
CONSIDER THE MITIGATING
124
CIRCUMSTANCE OF VOLUNTARY We shall take up in seriatim the did not present himself before the police
SURRENDER.
challenges posed by appellant to the in El Salvador, Misamis Oriental. Instead,
credibility and sufficiency of the he was conveniently nowhere to be
II
evidence for the prosecution. We shall found. Misoedp

also consider the weight and credibility

THE TRIAL COURT ERRED IN of his defense.
Thus, appellant's first contention that he
DECLARING THAT THE KILLING WAS is entitled to the mitigating circumstance
ATTENDED BY THE QUALIFYING To begin with, while appellant denies of voluntary surrender, in our view, is
CIRCUMSTANCE OF TREACHERY, that he fled and hid after the shooting quite untenable. The essence of
GRANTING ARGUENDO THAT THE incident, we find that his behavior voluntary surrender is spontaneity and
ACCUSED APPELLANT IS GUILTY.
proves otherwise. Appellant admits that the intent of the accused to give himself
he was at the scene of the crime at the up and submit himself unconditionally to
III
time the shooting happened. the authorities either because he
Considering that he is a law acknowledges his guilt or he wishes to
THE TRIAL COURT ERRED IN RULING enforcement officer, the unusual incident save them the trouble and expense
THAT ACCUSED-APPELLANT IS THE should have at least elicited his curiosity necessarily incurred in his search and
PERPETRATOR OF THE CRIME and he should have inquired about it. capture.[13] In this case, it was
CHARGED, DESPITE THE FACT THAT However, he chose to ignore the appellant's commanding officer who
ACCUSED WAS NOT PROPERLY AND incident and go his way.[12] That a surrendered him to the custody of the
CONCLUSIVELY IDENTIFIED, AND THE policeman could display such court. Being restrained by one's
ALLEGED WEAPON NOT POSITIVELY indifference to a crime committed in his superiors to stay within the camp
TESTED.
presence is highly incredible. While it without submitting to the investigating
was true that he reported for duty the authorities concerned, is not tantamount
IV
day after the incident, the following day, to voluntary surrender as contemplated
he was ordered by his commanding by law. The trial court is correct in not
THAT THE TRIAL COURT GRAVELY officer restricted within the camp appreciating the mitigating circumstance
ERRED IN DISREGARDING EVIDENCE pending investigation of the case. By of voluntary surrender in appellant's
POINTING TO THE INNOCENCE OF this time, appellant must have learned favor. Misedp

THE ACCUSED-APPELLANT, THAT IS, that his commanding officer had

THE EXISTENCE OF EFFICIENT received a radio message and that he On his second assignment of error,
INTERVENING CAUSE, WHICH IS THE was already a suspect. As the trial court however, we find convincing merit.
PROXIMATE CAUSE OF THE DEATH OF noted, no superior officer will hold back Appellant asserts that the trial court
THE VICTIM."[11]
from any of his men involved, such a erred in concluding that the killing was
grave charge. Despite these, appellant qualified by treachery. On this point, we
125
agree. For treachery to be considered an
aggravating circumstance, there must
be proof that the accused consciously
adopted a mode of attack to facilitate
the perpetration of the killing without risk
to himself.[14] In this case, the shooting
was done at the spur of the moment. As
observed by the trial court, the victim
had shouted damning curses at the
driver and the passengers of the
jeepney. The shooting was on
instantaneous response to the cursing,
as appellant correctly claimed.[15]
Treachery cannot be appreciated where
the accused shot the victim as a result
of a rash and impetuous impulse rather
than from a deliberate act of the will.[16]
is that there be proof beyond reasonable
Thirdly, appellant contends that the trial
court erred in ruling that he was the
perpetrator of the crime. He claims he
was not conclusively identified and the
alleged fatal weapon was not positively
tested. True, prosecution witnesses did
not positively identify appellant as the
one who fired the gun at the victim.
Nevertheless, direct evidence of the
commission of the crime is not the only
matrix where the trial court may draw its
conclusions and findings of guilt.[17] It is
settled that conviction may be based on
circumstantial evidence provided that
the following requisites must concur: (a)
there is more than one circumstance; (b)
the facts from which the inferences are
derived are proven; and (c) the
combination of all the circumstances is
such as to produce a conviction beyond
reasonable doubt.[18] Circumstantial
evidence could be of similar weight and
probative value as direct evidence. From
direct evidence of a minor fact or facts,
by a chain of circumstances the mind is
led intuitively, or by a conscious process
of reasoning, towards a conviction that
from said fact or facts some other facts
may be validly inferred.[19] No greater
degree of certainty is required when the
evidence is circumstantial than when it
is direct. In either case, what is required
authorities to present himself until after a
doubt that the crime was committed and
that the accused committed the crime.
[20]
As noted by the trial court and the
Solicitor General, the evidence for the
prosecution is replete with details, duly
proven by the prosecution and to some
extent by admissions of the defense,
enough to sustain the guilt of appellant.
These are: (1) The appellant was a
former member of the Philippine
Constabulary and, during the incident,
was a member of the Philippine National
Police. He was skilled in handling
firearms. (2) The appellant was issued a
firearm (armalite rifle) by his command,
which he was then carrying with him
before, during and after the incident. (3)
At the particular date, time and place of
the incident, appellant was carrying his
duly issued armalite rifle inside the
jeepney from where the gunfire came
from. (4) The appellant was sitting on the
extreme front-right-side of the jeepney
where the sparks of the gunbursts were
seen and heard by the witnesses. (5)
There were no other persons with a rifle
inside the jeepney except the appellant.
(6) The empty shells of an armalite rifle
were recovered at the place where the
fatal shooting occurred. (7) The
appellant did not go forward to the
warrant of arrest was issued and, in fact,
until his actual arrest.[21]
The aforecited circumstances taken
together constitute an unbroken chain
leading to a reasonable conclusion that
appellant, to the exclusion of others,
was responsible for the victim's death.
They constitute proof beyond
reasonable doubt that appellant was the
perpetrator of the offense. It is the
height of desperation on appellant's part
to insist that there should be an
eyewitness to the precise moment the
shot was fired considering the sudden
and completely unexpected shooting of
126
the victim.[22] Here, circumstantial
evidence suffices. Edp
given blood transfusion at the Northern
Appellant's insistence on his innocence
in view of the absence of paraffin and
ballistic tests, in our view, is far from
convincing. Suffice it to state that even
negative findings of the paraffin test do
not conclusively show that a person did
not fire a gun. The absence of nitrates
could be explained if a person
discharged a firearm with gloves on, or if
he thoroughly washed his hands
thereafter.[23]
the victim. The perceived delay in giving
Lastly, in his attempt to exculpate
himself, appellant blames the death of
the victim on the lack of prompt and
proper medical attention given. He
insists that the delay in giving proper
medical attendance to the victim
constitutes an efficient intervening cause
which exempts him from criminal
responsibility. This assertion is
disingenuous, to say the least. Appellant
never introduced proof to support his
allegation that the attending doctors in
this case were negligent in treating the
victim. On the contrary, Dr. Ismael
Naypa, Jr., testified that the attending
doctor at the Cagayan de Oro Medical
Center tried his best in treating the
victim by applying bandage on the
injured leg to prevent hemorrhage. He
added that the victim was immediately
just accounting for their acts by merely
Mindanao Regional Hospital when the
doctor found out that the victim had a
very low blood pressure. Thereafter, the
victim's blood pressure stabilized. Then,
the doctor operated the victim as the
main blood vessel of the victim's right
leg was cut, thereby causing massive
loss of blood. The surgery was finished
in three hours. Unfortunately, the victim
died hours later. We cannot hold the
attending doctors liable for the death of
found by the trial court or shown after a
medical treatment to the victim does not
break at all the causal connection
between the wrongful act of the
appellant and the injuries sustained by
the victim. It does not constitute efficient
intervening cause. The proximate cause
of the death of the deceased is the
shooting by the appellant. It is settled
that anyone inflicting injuries is
responsible for all the consequences of
his criminal act such as death that
supervenes in consequence of the
injuries. The fact that the injured did not
receive proper medical attendance
would not affect appellant's criminal
responsibility. The rule is founded on the
practical policy of closing to the
wrongdoer a convenient avenue of
escape from the just consequences of
his wrongful act. If the rule were
otherwise, many criminals could avoid
establishing a doubt as to the immediate
cause of death.[24]
To conclude, since the qualifying
circumstance was not proved in this
case, the crime committed is only
homicide, not murder. Under Article 249
of the Revised Penal Code, the
applicable penalty for homicide is only
reclusion temporal. As there is neither
aggravating nor mitigating circumstance
review of the records, the penalty in this
case shall be fixed in its medium period
of reclusion temporal, which ranges
from a minimum of 14 years, 8 months
and 1 day to a maximum of 17 years
and 4 months. Further applying the
Indeterminate Sentence Law, the
imposable penalty shall be within the
range of prision mayor as a minimum to
reclusion temporal in its medium period
as the maximum. The range of prision
mayor is from 6 years and 1 day to 12
years. The span of reclusion temporal,
medium, is from 14 years, 8 months and
1 day to 17 years and 4 months. Edpsc
WHEREFORE, the assailed DECISION of
the Regional Trial Court of Cagayan de
Oro City, Branch 22, in Criminal Case
No. 91-1161, is hereby MODIFIED.
127
Appellant Orlando Acuram is hereby Q-96-68120, finding accused-appellant unlawfully and feloniously, lie and
found GUILTY of HOMICIDE and Antonio Magat y Londonio guilty of succeeded in having sexual intercourse
sentenced to suffer a prison term of 10 raping his daughter, Ann Fideli L. Magat, with Ann Fideli Limpoco Magat."[1]

years of the medium period of prision on two occasions and sentencing him to
mayor, as minimum, to 15 years and 10 suffer the extreme penalty of death for

months and 1 day of the medium period each case, and to pay the sum of
of reclusion temporal, as maximum, with P750,000.00 as compensatory, moral CRIMINAL CASE NO. Q-96-68120

accessory penalties provided by law, to and exemplary damages.

indemnify the heirs of the deceased "The undersigned, upon sworn

Rolando Manabat in the amount of The two (2) Informations, charging complaint of the offended party,
P50,000.00, without subsidiary accused-appellant with rape reads:
nineteen year old (19) ANN FIDELI
imprisonment in case of insolvency, and LIMPOCO MAGAT, accuses ANTONIO
to pay the costs.

MAGAT y LON DONIO, her father, of the
crime of rape defined and penalized
SO ORDERED.
CRIMINAL CASE NO.Q-96-68119
under Article 335, Revised Penal Code,
as amended by RA 7659, committed as
===
"The undersigned, upon sworn follows:

complaint of the offended party,

EN BANC
nineteen year old (19) ANN FIDELI That on or about the 1st day of
LIMPOCO MAGAT, accuses ANTONIO September1996, in Barangay Holy
[G.R. No. 130026. May 31, 2000]
MAGAT y LONDONIO, her father, of the Spirit, Quezon City, and within the
crime of rape defined and penalized jurisdiction of this Honorable Court,
PEOPLE OF THE PHILIPPINES, plaintiff- under Article 335, Revised Penal code, accused ANTONIO MAGAT Y
appellee, vs. ANTONIO MAGAT y as amended by RA 7659, committed as LONDONIO, with lewd designs and by
LONDONIO, accused-appellant.
follows:
means of threat and violence, did then
and there, unlawfully and feloniously, lie
D E C I S I O N
"That on or about the 14th day of and succeeded in having sexual
August 1994, during the 17th birthday of intercourse with Ann Fideli Limpoco
PER CURIAM: batas
Ann Fideli L. Magat in Kasunduan, Magat."[2]

Quezon City and within the jurisdiction

Before this court for automatic review is
the joint decision of the Regional Trial
Court of Quezon City, Branch 103, in
Criminal Cases Nos. Q-96-68119 and
of the Honorable Court, accused
ANTONIO MAGAT Y LONDONIO, with
lewd designs, and by means of threat
and violence, did then and there,
Upon arraignment on January 10, 1997,
accused-appellant pleaded guilty but
bargained for a lesser penalty for each
case. Complainant's mother, Ofelia
128
Limpoco Magat, and the public April 15, 1997 where he entered a plea amended, beyond reasonable doubt and
prosecutor, Rio Espiritu agreed with the of not guilty.[5]
accordingly, sentences him as follows:

plea bargain. Consequently, the trial

court issued, on that same day, an Thereafter, trial on the merits ensued 1.......In Crim. Case No. Q-96-68119, the
Order, the fallo of which reads: with the prosecution presenting Dr. Ida accused Antonio Magat y Londonio is
katarungan
Daniel, medico-legal officer of the sentenced to DEATH by lethal injection;
National Bureau of Investigation and and

"On arraignment, accused with the complainant's mother.

assistance of his counsel Atty. Diosdado 2.......In Crim. Case No. Q-96-68120, the
Savellano and upon the request of the On July 3, 1997 accused-appellant accused Antonio Magat y Londonio is
accused, the information was read and entered anew a plea of guilty.[6] The sentenced to DEATH by lethal injection.

explained to him in tagalog, a dialect court read to him the Informations in

known to him and after which accused
entered a plea of "GUILTY" to the crime
charged against him, and further pleads
for a lower penalty to which the Hon.
Public Prosecutor interpose no
damages; further sum of P200,000.00 as
objection.
ACCORDINGLY, the court hereby finds
English and Tagalog and repeatedly On the civil aspect, the accused Antonio
asked whether he understood his Magat y Londonio is hereby ordered to
change of plea and propounded pay Ann Fideli Limpoco Magat the sum
questions as to his understanding of the of P50,000.00 as compensatory
consequences of his plea.[7]
moral damages and another sum of
Convinced of accused-appellant's P500,000.00 as exemplary and
voluntariness of his plea of guilty, the corrective damages.

the accused ANTONIO LON DONIO court required the taking of

MAGAT, GUILTY beyond reasonable complainant's testimony. The accused- SO ORDERED."[8]

doubt of the crime of Violation of Article appellant did not present any evidence.

335, RPC in relation to RA 7659 and he Hence, this automatic review.

is hereby sentenced to suffer a jail term On July 15, 1997, the trial court
of ten (10) years imprisonment for each rendered judgment, the decretal portion Accused-appellant contends that the
case."[3]
of which reads: HTML
trial court erred in re-arraigning and
proceeding into trial despite the fact that
After three months, the cases were "CONSEQUENTLY, the court renders he was already convicted per Order of
revived at the instance of the judgment finding the accused ANTONIO the trial court dated January 10,1997
complainant on the ground that the MAGAT y LONDONIO, GUILTY of the based on his plea of guilt. He also
penalty imposed was "too light."[4]As a crime of Rape in violation of Article 335 argues that when the court rendered
consequence, accused-appellant was of the Revised Penal Code, as judgment convicting him, the
re-arraigned on both Informations on prosecution did not appeal nor move for
129
reconsideration or took steps to set
aside the order. Consequently, the
conviction having attained finality can no
longer be set aside or modified even if
the prosecution later realizes that the
for a conditional plea of guilty, or one
penalty imposed was too light.
Accused-appellant likewise posit that
the re-arraignment and trial on the same
information violated his right against
would, therefore, require a full-blown
double jeopardy.
The January 10, 1997 order of the trial
court convicting the accused-appellant
on his own plea of guilt is void ab initio
on the ground that accused-appellant's
plea is not the plea bargaining
contemplated and allowed by law and
the rules of procedure. The only instance
where a plea bargaining is allowed under
the Rules is when an accused pleads
guilty to a lesser offense. Thus, Section
2, Rule 116 of Revised Rules of Court
not lie.
provides:
"Sec. 2. Plea of guilty to a lesser
offense.- The accused, with the consent
of the offended party and the fiscal, may
be allowed by the trial court to plead
guilty to a lesser offense, regardless of
whether or not it is necessarily included
in the crime charged, or is cognizable by
a court of lesser jurisdiction than the trial
right to question the same[13] and
court. No amendment of the complaint
or information is necessary. CODES
"A conviction under this plea shall be
equivalent to a conviction of the offense
charged for purposes of double
jeopardy."
Here, the reduction of the penalty is only
a consequence of the plea of guilt to a
lesser penalty.
trial before judgment may be rendered.
It must be emphasized that accused-
appellant did not plead to a lesser
offense but pleaded guilty to the rape
charges and only bargained for a lesser
penalty. In short, as aptly observed by
the Solicitor General, he did not plea
bargain but made conditions on the
penalty to be imposed. This is erroneous
because by pleading guilty to the
offense charged, accused-appellant
should be sentenced to the penalty to
which he pleaded.
It is the essence of a plea of guilty that
the accused admits absolutely and
unconditionally his guilt and
responsibility for the offense imputed to
him.[9] Hence, an accused may not foist
a conditional plea of guilty on the court
by admitting his guilt provided that a
certain penalty will be meted unto him.
[10]
yacats
Accused-appellant's plea of guilty is
undoubtedly a conditional plea. Hence,
the trial court should have vacated such
a plea and entered a plea of not guilty
subject to the proviso that a certain
penalty be imposed upon him, is
equivalent to a plea of not guilty and
[11]
In effect, the judgment rendered by the
trial court which was based on a void
plea bargaining is also void ab initio and
can not be considered to have attained
finality for the simple reason that a void
judgment has no legality from its
inception.[12] Thus, since the judgment
of conviction rendered against accused-
appellant is void, double jeopardy will
Nonetheless, whatever procedural
infirmity in the arraignment of the
accused-appellant was rectified when
he was re-arraigned and entered a new
plea. Accused-appellant did not
question the procedural errors in the first
arraignment and having failed to do so,
he is deemed to have abandoned his
waived the errors in procedure.[14]
130

Accused-appellant also maintains that
assuming that there was proper basis
for setting aside the Order of January
10,1997, the trial court erred in not
finding that he made an improvident
plea of guilty. He faults the trial court in
not complying with the procedure laid
down in the Section 3, Rule 116 of the
Revised Rules of Court.[15] He claims
that the record of the case fails to
support the trial court's assertion that it
conducted a searching inquiry to
determine that the accused-appellant
voluntarily entered his plea of guilty with
full understanding of the consequences
of his plea. He claims that there is no
evidence that the trial court conducted
searching inquiry in accordance with the
rules.
such procedure may remove any doubt
Under the present rule, if the accused
pleads guilty to capital offense, trial
courts are now enjoined: (a) to conduct
searching inquiry into the voluntariness
and full comprehension of the
consequences of his plea; (b) to require
the prosecution to present evidence to
prove the guilt of the accused and the
precise degree of his culpability; and (c)
to ask the accused if he so desires to
present evidence in his behalf and allow
him to do so if he desires.[16]
understanding of accused-appellants'
This Court, in a long line of decisions
imposed upon trial judges to comply
with the procedure laid down in the rules
of arraignment, particularly the rules
governing a plea of guilty to a capital
offense in order to preclude any room
for reasonable doubt in the mind of
either the trial court or of this Court, on
review, as to the possibility that there
might have been some
misunderstanding on the part of the
accused as to the nature of the charges
to which he pleaded guilty and to
ascertain the circumstances attendant
to the commission of the crime which
justify or require the exercise of a greater
or lesser degree of severity in the
imposition of the prescribed penalties.
[17] Apart from the circumstances that
Moreover, the prosecution has already
that the accused fully understood the
consequences of his plea is the fact that
the evidence taken thereon is essential
to the fulfillment by this Court of its duty
of review of automatic appeals from
death sentences.[18]
We have carefully reviewed the record of
this case and are convinced that the trial
judge has faithfully discharged his
bounden duty as minister of the law to
determine the voluntariness and full
and she and her younger brother David
plea of guilty. The absence of the
transcript of stenographic notes of the
proceedings during the arraignment do
not make the procedure flawed. The
minutes of the proceedings[19]
indubitably show that the judge read the
Informations to the accused-appellant
both in English and Tagalog, asked him
questions as to his understanding of the
consequences of his plea, his
educational attainment and occupation.
Accused-appellant could have known of
the consequence of his plea having
pleaded twice to the charges against
him. In fact, in the two (2) letters sent to
the trial court judge, accused-appellant
not only admitted his "sins" but also
asked for forgiveness and prayed for a
chance to reform.[20] olanski
presented its evidence. Thus, even
assuming that there was an improvident
plea of guilt, the evidence on record can
sustain the conviction of the accused-
appellant.
The testimony of the complainant, as
summarized by the Solicitor General,
reveal:
"Complainant's x x x parents separated
when she was only seven (7) years old
were left with her father, accused-
131
appellant, while another brother,
Jonathan, and sister, Abigail, stayed
with their mother (TSN, July 15, 1997, p.
46; May 22, 1997, pp. 38-41; 49-51).
would just beat her if she did (TSN,
that there was nothing wrong with what
"On her 9th birthday, her father first
raped her and she was beaten when she
resisted, thus, she found it futile to resist
every time her father touched her after
that (TSN, supra, pp. 24-25).
appellant who even beat her with a whip
"August 14, 1994, was complainant's
17th birthday. That evening, while
sleeping together with accused-
appellant and her brother in their rented
house at Kasunduan, Quezon City, she
was awakened by the kisses of her
father. He then removed her clothes and
after removing his own clothes, went on
top of her and inserted his penis inside
her vagina as he had done to her many
times before this incident. After he had
finished, he told her to wash her vagina
which she did (TSN, supra, pp. 12-17).
'Gextex' (should be Gestex) if her
"On September 1, 1996, complainant
who was already 19 years old, was at
home with accused-appellant and her
brother after 'selling' when her father
ordered her and her brother to go to
sleep. Her brother fell asleep but
complainant could not sleep and was
restless that night. Again, accused-
appellant raped her on the same bed
where her brother was also sleeping.
She did not resist him anymore because
nothing would happen anyway and he
further made to believe by her father
supra, 21-25). haideem
"x x x complainant further revealed that
she was not only sexually abused but
also physically abused by accused-
complainant's testimony. Dr. Ida P.
while being tied and struck her with a
bag containing tin cans causing head
injuries necessitating her hospitalization.
She also confirmed that her father
started raping her on her 9th birthday
which was repeated several times after
that. She likewise revealed that she felt
some fluid ('katas') coming out of her
fathers penis every time he raped her
but she did not become pregnant
because her father made her drink the
water from boiled guava leaves and a
medicine she identified as
complete penetration of an average-
menstruation was delayed. In fact, when
her menstrual period was delayed for
three (3) months, her father even boxed
her stomach after making her drink the
water boiled from guava leaves and
Gextex thereby causing her to bleed
profusely. She was not able to report or
reveal what her father did to her
because she was warned by him that he
would kill her, her brother, her mother
and her relatives if ever she would
escape and reveal the rape. Besides,
she had nowhere else to go and was
he was doing to her because it was not
forbidden by the Bible."
The medical examination confirmed
Daniel of the NBI testified that
complainant had "lax fourchette" and
"distensible hymen" which may be
caused by sexual intercourse or
penetration of a hard blunt object such
as a penis. She also concluded that the
"shallow rugosities" inside her vagina
lead to the conclusion that there was
more than one or even more than ten
(10) times of sexual intercourse or
penetration of a hard blunt object that
passed through her vaginal canal.
Moreover, her hymen orifice can allow
sized Filipino adult penis in its erect
stage which is from 2.5 to 3.0 cms. in
diameter.[21] hustisya
Surprisingly, accused-appellant did not
present any evidence to rebut the
prosecution's evidence nor testified in
his behalf to deny the in culpatory
testimony of the complainant, giving us
132
the impression that he acknowledges No. 7659. The proper penalty should be
the charges against him.
Accused-appellant further impugns the reclusion perpetua pursuant to Article
trial court's imposition of the death 335 of the Revised Penal Code. Jksm

While we have in a catena of cases set penalty in Criminal Case No.

aside convictions based on pleas of Q-96-68120 contending that the However, the extreme penalty of death
guilty in capital offenses because of the complainant was already nineteen (19) should be imposed in Criminal Case No.
improvidence of the plea, we did so only years old when the alleged rape Q-96-68119, complainant being only 17
when such plea is the sole basis of the occurred.
years of age when accused-appellant,
judgment of the condemnatory his father, raped her.

judgment. Thus, when the trial court in Republic Act No. 7659 which amended
obedience to this Court's injunction, Article 335 of the Revised Penal Code Finally, accused-appellant likewise
receives evidence to determine precisely provides:
assails the award of P750,000.00
whether or not the accused has erred in damages claiming that the same is
admitting guilt, the manner in which the "The death penalty shall also be excessive.

plea of guilty is made loses legal imposed if the crime of rape is

significance, for the simple reason that committed with any of the following With regard to the award of
the conviction is predicated not on the attendant circumstances:
compensatory damages, we have ruled
plea but on the evidence proving the in People vs. Victor,[26] which was later
commission by the accused of the 1.......when the victim is under eighteen reaffirmed in People vs. Prades,[27] that
offense charged.[22] In such case, it (18) years of age and the offender is a "if the crime of rape is committed or
cannot be claimed that defendant was parent, ascendant, step-parent, effectively qualified by any of the
sentenced to death without having been guardian, relative by consanguinity or circumstances under which the death
previously informed of the nature of the affinity within the third civil degree, or penalty is authorized by the present
charges against him and of the the common-law spouse of the parent of amended law, the indemnity of the
qualifying and aggravating the victim." (Underscoring supplied)
victim shall be in the increased amount
circumstances recited in the information, of not less than P75,000.00."[28]
as he is fully apprised not only of the Complainant was born on August 14, Accordingly, in Criminal Case NO.
allegations in the information but of the 1977.[25] On September 1, 1996, when Q-96-68119, the award of
entire evidence of the prosecution.[23]
the rape was committed (Criminal Case compensatory damages should be
No. Q-96-68120), complainant was increased from P50,000.00 to
Additionally, accused-appellant's already nineteen (19) years of age. P75,000.00. In Criminal Case No.
second plea of guilty validated his first Therefore, the same does not fall under Q-96-68120 however, while appellant
plea of guilt. It removed any reasonable the last paragraph of Article 335 of the was sentenced to reclusion perpetua,
doubt as to his guilt.[24]
Revised Penal Code, as amended by RA the compensatory damage should be
133
the same (P75,000.00). As rightly argued pleadings are filed wherein such
by the Solicitor General, the trauma, allegations can be made.
WHEREFORE, judgment is hereby
ignominy, pain and shame suffered by rendered as follows:

the complainant can not be treated or "Corollarily, the fact that complainant
regarded any lesser.
has suffered the trauma of mental, 1.......In Criminal Case No. Q - 96 -
physical and psychological sufferings 68119, the decision of the Regional Trial
The award of civil indemnity "is not only which constitute the bases for moral Court convicting accused-appellant
a reaction to the apathetic societal damages are too obvious to still require Antonio Magat y Londonio of rape and
perception of the penal law and the the recital thereof at the trial by the sentencing him to the Supreme Penalty
financial fluctuations overtime, but also victim, since the Court itself even of DEATH is hereby AFFIRMED with the
an expression of the displeasure of the assumes and acknowledges such agony modification that the award of
Court over the incidence of heinous on her part as a gauge of her credibility. compensatory damages be increased to
crimes against chastity."[29] More so, if What exists by necessary implication as Seventy - Five Thousand Pesos
the crime is committed by the father being ineludibly present in the case (75,000.00), moral damages is reduced
against his own flesh and blood.
need not go through the superfluity of to Fifty Thousand Pesos (P50,000.00)
still being proved through a testimonial and exemplary damages deleted. Esm

With respect to the award of moral charade."

damages, we have in People vs. 2.......In Criminal Case No. Q- 96-68120,

Prades[30] held: Chiefx
Nevertheless, we find the award of
" x x x The Court has also resolved that
in crimes of rape, such as that under
consideration, moral damages may
additionally be awarded to the victim in
the criminal proceeding, in such amount
Seventy - Five Thousand Pesos
as the Court deems just, without the
need for pleading or proof of the basis
thereof as has heretofore been the
practice. Indeed, the conventional
the decision of the Regional Trial Court
P200,000.00 moral damages excessive.
An award of P50,000.00 for each count
of rape is to our mind more reasonable.
However, we are deleting the award of
exemplary or corrective damages, in the
absence of any legal basis therefor.
Four members of the Court maintain
their position that Republic Act No.
7659, insofar as it prescribes the death
convicting accused - appellant of rape
and sentencing him to the Supreme
Penalty of DEATH is hereby reduced to
RECLUSION PERPETUA. The award of
compensatory damages is increased to
(P75,000.00) , moral damages is
reduced to Fifty Thousand Pesos
(P50,000.00) and exemplary damages is
deleted.

requirement of allegata et probata in civil penalty, is unconstitutional; nevertheless

procedure and for essentially civil cases they submit to the ruling of the Court, by In accordance with Section 25 of the RA
should be dispensed within criminal majority vote, that the law is 7659, amending Article 83 of the
prosecution for rape with the civil aspect constitutional and the death penalty Revised Penal Code, upon the finality of
included therein, since no appropriate should be imposed accordingly.
this Decision, let the records of this case
134
be forthwith forwarded to the Office of murder and sentencing him to reclusion to the transcript of stenographic notes,
the President for the possible exercise perpetua.
are as follows:[5]

of executive clemency or pardoning

power.
On January 11, 1991, an Information[3] At around nine oclock in the evening
was filed against the appellant charging (9:00 p.m.) of January 10, 1991 at
SO ORDERED.
him as follows:
Alkalde Jose Street, Barrio Kapasigan,
Pasig, Metro Manila, Dante Deopante
= = =
That on or about the 10th day of was having a conversation with his
January, 1991, in the Municipality of friend Renato Molina when they saw
THIRD DIVISION
Pasig, Metro Manila, Philippines, and appellant Rogelio Deopante coming
[G.R. No. 102772. October 30, 1996]
within the jurisdiction of this Honorable towards their direction. Renato noticed
Court, the above-named accused, that as appellant was fast approaching,
PEOPLE OF THE PHILIPPINES, plaintiff- armed with a fan knife (balisong), with the latter was drawing out an open fan
appellee, vs. ROGELIO DOEPANTE y intent to kill and with evident knife (balisong) from his right back pants
CARILLO, accused-appellant.
premeditation and treachery did then pocket. Sensing danger, Renato
D E C I S I O N
and there willfully, unlawfully and immediately called out to Dante and told
PANGANIBAN, J.:
feloniously stab with a fan knife one the latter to flee the place. As Dante
Dante Deopante on the different parts of took flight, so did Renato in another
In deciding this appeal, the Court finds his body, thereby inflicting upon the direction. (pp. 3-4, 6, 8, t.s.n. June 3,
occasion to reiterate some well-settled latter mortal wounds which directly 1991)

doctrines in appreciating evident caused his death.

premeditation as a qualifying Appellant ran after Dante and

circumstance in the crime of murder, Contrary to law.
overpowered the latter at basketball
and in evaluating claims of self-defense, court located in a lot between Alkalde
voluntary surrender and physical defect.
Arraigned on March 8, 1991, the Jose and Pariancillo Streets. Appellant
accused, assisted by counsel de oficio, and victim grappled with each other and
This is an appeal from the decision[1] pleaded not guilty to charge.[4]
both fell on the ground. Appellant was
dated September 6, 1991 of the able to assume the dominant position
Regional Trial Court of Pasig, Metro The Facts
and as Dante lay flat on his back the
Manila, National Capital Judicial Region, former proceeded to stab the latter
Branch 164,[2] in Criminal Case No. According to the Prosecution
twice with his fan knife. Immediately
85155, convicting accused Rogelio thereafter, appellant stood up and fled
Deopante y Carillo of the crime of The facts as summarized by the Solicitor the scene leaving Dante mortally
General, who added the page references wounded. Bystanders milling around
135
Pariancillo Street then rushed victim to recovered a fan knife from appellant
the Rizal Medical Center. (pp. 3-5, t.s.n., measuring around ten (10) inches when
April 25, 1991; pp. 8, 9, 11, t.s.n. June 3, opened. He sent the fan knife to the
1991)
P.N.P. Crime Laboratory Service for the Pasig Police Station testified that he
examination. (pp. 8-9, t.s.n., May 15,
At about the same time on the aforesaid 1991)
after receiving a report on the killing, and
date, the Pasig Police Station received a
telephone call from the Rizal Medical The autopsy report shows a total of
Center informing them that a stabbing seven (7) wounds all over victims body.
victim has been brought to said hospital Of these wounds, two (2) were stab
for treatment. Patrolman Crispin Pio wounds (Wound Nos. 2 & 3) and the rest
proceeded to the hospital and there mere abrasions. Dr. Emmanuel Aranas,
received the information that appellant the medico-legal officer of the P.N.P.
was the one who stabbed Dante. Said Crime Laboratory Service who
policeman later obtained the sworn conducted the autopsy testified that the
statement of Nestor Deopante indicating stab wounds were caused by a sharp
that appellant stabbed the victim. pointed object like a balisong or fan
Renato refused to give his sworn knife. He further declared that Wound
statement to the police, but insisted that No. 2, a stab wound located at the left
indeed it was appellant who stabbed side of the chest, lacerated the
Dante. (pp. 5-7, t.s.n., May 15, 1991)
diaphragm, liver (left lobe) and stomach complaint[6] of Dante Deopante.
of the victim causing the latters
At around eleven oclock (11:00 p.m.) of instantaneous death. Moreover, he
the same evening, Patrolman Crispin Pio concluded that the fan knife sent to him
included Manolo Angeles and Renato
Molina, who gave eyewitness accounts
of the stabbing. Patrolman Crispin Pio of
invited the accused for investigation
that upon frisking the accused, he found
and recovered from him a 10-inch fan
knife which he submitted to the crime
lab for examination. Alfonso Reyes,
barangay captain of Barangay
Kapasigan, Pasig, Metro Manila,
testified that on August 19, 1989, Dante
Deopante made a personal complaint to
him as barangay captain, that Rogelio
Deopante had threatened to kill him
(Dante). He testified that his office kept a
logbook of the all the incidents that
happened in the barangay and that the
same contained a record of the said
However, on cross-examination, he
admitted that he was not the one who
personally made the entry.

and two (2) other police officers went to for examination could have been used in
the house of appellant located at No. 12 stabbing a person since it showed Version of the Defense

Alkalde Jose Street, Barrio Kapasigan,
Pasig, Metro Manila. After informing
appellant of the allegation against him,
that the victim was killed with evident
they invited the former to the police
station for investigation. Appellant went
with the police officers and maintained
his innocence throughout the
investigation. Patrolman Crispin Pio
minute traces of human blood. (pp. 7-8,
t.s.n., April 19, 1991; p. 17. t.s.n., May
30, 1991)
The prosecution presented six
witnesses. Aside from Dr. Emmanuel L.
Aranas, who testified on the results of
the autopsy, the other witnesses
In contrast to the prosecutions theory
premeditation, the defense claimed that
the fatal injuries inflicted by accused-
appellant upon the victim were done in
self-defense.[7] The defense presented
three witnesses, viz.: the accused
136
himself, his longtime friend Benito
Carrasco, and the son of the accused,
Vladimir Deopante. Their version of the
event was as follows:
victim for being a drug addict when he
On January 10, 1991, at about 9:00
oclock in the evening, in Alcalde Jose
Street, Pasig, Metro Manila, while the
appellant was allegedly on his way
the costs.
home he was seen by his nephew, the
victim (Dante Deopante) and the witness
for the prosecution, Renato Molina, who
at that time were allegedly both drunk.
(TSN June 6, 1991, page 3). The victim
(Dante Deopante) suddenly boxed him
and the said appellant ran away and
(was) pursued by the victim and Renato
Molina. The appellant was overtaken by
the victim by holding the back portion of
his shirt. Both of them fell. The victim
pulled-out a knife which appellant
allegedly wrested x x x away from Dante
Deopante. After he (appellant) wrested
the knife from the victim, they continued
rolling over and over the ground and he
does not know whether he stab (sic) the
the mitigating circumstances of
victim or not (TSN June 6, 1991, page
4). Said appellant sustained also injuries
on (the) little finger of his right hand and
abrasion on his right leg, left knee and
left hand (sic). The said appellant was
self-defense.
treated by one Dr. Leonides Pappa on
January 11, 1991, and issued medical
certificate, marked as Exhibits 1, 1-A. 1-
B and 1-C for the defense. (TSN June 6,
1991, pages 5-6); Appellant claimed that
he placed behind bars (incarcerated) the
penalty of reclusion perpetua, there
was still a policeman and member of the
Police Department of Pasig. Renato
Molina eluded arrest by him, for being a
drug addict too. (TSN June 6, 1991,
page 6).[8]
On cross-examination, accused Rogelio
Deopante testified that he was a former
member of the Pasig Police Department
but was discharged for having been
absent without leave, by reason of a
complaint filed against him by Manolo
Angeles before the National Police
Commission, and in which case the
victim, Dante Deopante, was presented
as witness for complainant Angeles. He
further testified that his left hand was
completely severed at the wrist when it
was hacked off by his brother Nestor
Deopante.
The Trial Courts Ruling
On September 6, 1991, the trial court
rendered a decision convicting the
appellant of murder, the decretal portion
of which reads as follows:
ACCORDINGLY, the Court finds the
accused Rogelio Deopante y Carillo
GUILTY beyond reasonable doubt of the
crime of Murder as charged; and
therefore hereby imposes upon him the
being no other generic aggravating or
mitigating circumstance adduced; and
to indemnify the heirs of the victim the
amount of P50,000.00 as well as to pay
SO ORDERED.
The Issues
In his brief, the appellant charges that
the trial court erred
I In considering the entry in the
(barangay) peace and order chairmans
blotter under entry no. 0097, page 58
(logbook) as a basis in holding the
commission of the offense with evident
premeditation.
II. In not affording the accused-appellant
voluntary surrender and his physical
condition.
III. In not considering appellants claim of
IV. In not considering the flaws and
inconsistencies of the testimonies of the
137
prosecutions witnesses and its biased
character and wanting of credibility (sic).
accused-appellant had threatened to kill
V. In not considering the provision of
report to the barangay captain that the Metro Manila when the accused Rogelio
Deopante arrived. He told Dante
him. We hold that the record contains Deopante to run away. Both of them ran
sufficient basis for the finding of evident but in different directions.

Article 69 of the Revised Penal Code in premeditation. The first and third
the imposition of penalty.
elements were proven by the testimony That he told Dante Deopante to run
of the barangay captain, Alfonso Reyes, away because the latter and the
The Courts Ruling
as to the report made by the deceased accused had a pervious (sic)
about the threat on his life, taken misunderstanding and the accused
First Issue: Evident Premeditation
together with the record of the report in always threatened Dante Deopante after
the barangay logbook,[10] all of which the latter testified against the accused
Very familiar by now to members of the established the time when appellant for shooting a certain Maning Angeles.

legal profession are the elements which
need to be proven before evident
premeditation can be appreciated.
These are: (1) the time when the
accused decided to commit the crime;
(2) an overt act manifestly indicating that
decided to commit the crime. The period
of time between the said report and the
killing (January 10, 1991) constituted a
sufficient lapse of time between the
determination to commit the crime and
the execution of the same, to enable the
That he also told Dante Deopante to run
away because he saw the accused
carrying a fan knife in his back pocket.
He saw it because the place was lighted
as there was a lamp post.

the accused had clung to his accused to coolly consider and reflect
determination to commit the crime; and upon his resolution to do away with the x x x x x x x x x

(3) a sufficient lapse of time between the victim. Finally, the second element was
decision to commit the crime and the proven by the eyewitness testimony of x x x x x x x x x

execution thereof, to allow the accused Renato Molina, friend of the victim since
to reflect upon the consequences of his childhood, who was present from the This witness (Molina) testified that when
act. Mere lapse of time is not enough, inception to the culmination of the he saw the accused more than six feet
however, because premeditation is not assault launched by the appellant away and was approaching them, he
presumed from the mere lapse of time. against the victim. We quote with immediately warned his childhood friend
[9] It must be evident from his overt act.
approval the trial courts ratiocination, to and victim Dante Deopante to run away
wit:
which the latter did. At the time, the
Considering the evidence on record, and accused was seen by this witness about
the events leading up to the killing, we That at around 9:00 oclock in the to draw a knife from his back pants
cannot agree with appellants contention evening of January 10, 1991, he (Renato pocket; and that he, too, ran away but
that the lower court based its finding of Molina) and Dante Deopante were took the opposite direction. Having
evident premeditation on the victims conversing at Alkalde Jose St., Pasig, traversed a short distance, he stopped
138
and looked back and saw the accused reason for an accuseds supposed
chasing his victim and nephew until the So it is that from this very actuation of surrender is to ensure his safety, his
former caught up with the latter, took the accused at the time, it is obviously arrest being inevitable, the surrender is
hold of him and they both fell to the clear that he clung to this determination not spontaneous and, hence, not
ground.
to kill Dante Deopante when he could voluntary.[12] It will be observed in this
have stopped at anytime between the case that there was no conscious effort
The accused could have desisted from moment that his nephew ran away until on the part of the accused -- who was
carrying his plan to kill into effect had he the time that he dealt the fatal blows fetched from his house by police officers
stopped when his nephew took off and that ultimately caused the death of to go to police headquarters for
ran away from him. The latter did so Dante Deopante.[11] (underscoring ours)
investigation -- to voluntarily surrender
because he knew in his heart that his and/or acknowledge his guilt. He went
uncle was about to kill him and this was The three elements having been duly with them for the purpose of clearing his
also felt by eyewitness Molina because proven, the presence of evident name as he in fact tried to do during the
of the immediate warning given by him premeditation in the case at bar is investigation where he professed his
to his friend.
therefore conclusive.
innocence. The fact alone that he did
not resist but went peacefully with the
But then, although he saw his nephew Second Issue: Voluntary Surrender and lawmen does not mean that he
sprinting away, he nevertheless did Physical Defect as Mitigating voluntarily surrendered.[13] On this
chase him for a distance and all the Circumstances?
point, it is apt to quote the decision of
while he could have stopped and go this Court in People vs. Flores[14] where
home to his residence situated only a Contrary to appellants protestations, the we stated that:

few maters away.

trial court was correct in finding no
voluntary surrender in this case. In order Neither can we accept accused-
Again he could have let go the victim to appreciate voluntary surrender by an appellants plea of voluntary surrender.
when he caught up and took hold of accused, the same must be shown to He did not surrender to the police. In
him. He did not, but on the contrary, have been spontaneous and made in fact, the evidence adduced shows that it
when they both fell and rolled on the such a manner that it shows the intent of was the police authorities who came to
ground, he grappled with his victim and the accused to surrender unconditionally the factory looking for him. It was there
at the very first opportune moment, to the authorities, either because he that accused-appellant was pointed to
mercilessly stabbed his nephew, not acknowledges his guilt or he wishes to them. With the police closing in,
only once but twice, inflicting, very save them the trouble and expense accused-appellant actually had no
serious blows, one of which was most necessarily incurred in his search and choice but to go with them. Seeing that
fatal and could have caused capture. In the absence of any of these the police were already approaching
instantaneous death on his prey.
reasons, and in the event hat the only him, accused-appellant did not offer any
139
resistance and peacefully went with already open and ready for use in his hand in no way limited his freedom to
them. To be sure, no surrender was back pocket, and that he had already action to commit the crime.

made by accused-appellant.
drawn the same even during the chase.
Molinas testimony[16] is as follows:
Third Issue: Self defense

The fact that appellant suffers from a

physical defect, a severed left hand, Q You said that this Rogelio Deopante Equally well-known and well-understood
does not mean that he should arrived while you were conversing with by now are the requirements in order for
automatically be credited with the Dante Deopante and you ask (asked) self-defense to be appreciated. The
mitigating circumstance contained in Dante Deopante to run away, why did accused must prove that there was
paragraph 8, Article 13 of the Revised you ask Dante Deopante to run away?
unlawful aggression by the victim, that
Penal Code. In order for this condition to the means employed to prevent or repel
be appreciated, it must be shown that A Because, Sir I saw the open fan knife the unlawful aggression were
such physical defect limited his means on his pocket, Sir at his back.
reasonable, and that there was lack of
to act, defend himself or communicate sufficient provocation on his part.[17]
with his fellow beings to such an extent Q When you said that you have seen an And having admitted that he killed his
that he did not have complete freedom open fan knife at his pocket, to whom nephew Dante Deopante, the burden of
of action, consequently resulting in are you referring to?
the evidence that he acted in self-
diminution of the element of defense was shifted to the accused-
voluntariness.[15] Such cannot be A. Rogelio Deopantes, Sir.
appellant. It is hornbook doctrine that
appreciated in the case at bar where the when self-defense is invoked, the
appellants physical condition clearly did x x x x x x x x x
burden of evidence shifts to the
not limit his means of action, defense or appellant to show that the killing was
communication, nor affect his free will. Q. How did you notice the fan knife justified and that he incurred no criminal
In fact, despite his handicap, appellant which is placed at the back if (sic) his liability therefor. He must rely on the
nevertheless managed to attack, pocket?
strength of his own evidence and not on
overcome and fatally stab his victim.
the weakness of the prosecutions
A. Because at the time, Sir he was evidence, for, even if the latter were
At this point, one might wonder how a drawing it out.
weak, it could not be disbelieved after
one-handed attacker can open a fan his open admission of responsibility for
knife and grapple with and overcome his Hence, at the time the accused- the killing.[18] Hence, he must prove the
two-handed prey. This was answered by appellant chased the victim, the former essential requisites of self-defense
the testimony of Renato Molina who already had the balisong in hand. aforementioned.

revealed that at the time the accused Clearly, the fact that he had only one
closed in for the kill, his balisong was
140
In the case at bar, appellant failed to (I saw Rogelio Deopante chasing Dante (Testimony of Renato Molina)

prove unlawful aggression by the victim, Deopante with intention of stabbing).

hence, his claim of self-defense cannot Q If you know, what did Rogelio
be sustained. The self-serving and COURT:
Deopante do with the knife that he was
unsupported allegation of appellant that then carrying?

he wrested the knife away from the Q You mean by tikad-tikad, habol?

victim while they were struggling and x x x x x x x x x

rolling around on the ground (in the A Yes, your Honor.

process sustaining only a minor scratch COURT:

on his little finger and abrasion on the ATTY. VALERIO:

right knee) does not inspire belief, when Witness may answer.

contrasted with the positive and Q How far were you when you were
categorical eyewitness accounts of urinating from the place where the victim A He used (it) in stabbing Dante
Renato Molina and Manolo Angeles that was chased by the accused?
Deopante

appellant ran after and stabbed the

victim. The latters testimonies are A More or less twenty (20) meters, sir.
Q How did he (use) it?

corroborated by the number and extent

of the stab wounds sustained by the Q What happened after that?
A They were both lying on the ground
victim.
when this Rogelio Deopante used that
A He overtook him and stabbed him.
Balisong or fan knife in stabbing the
(Testimony of Manolo Angeles)
victim, only I did not know how many
Q Can you remember how many stabs stabs he made on the victim (but
Q While you were urinating at a post in that the deceased received from the witness demonstrating as if he is
Parancillo, can you remember if there accused?
stabbing) somebody from his right hand
was an unusual incident that happened going downward).[20]

at that time?
A Two (2), Sir.

Due to appellants failure to prove

A Yes, sir.
Q Did you see the position of the unlawful aggression by the victim, and in
deceased while he was being stabbed?
view of the prosecutions evidence
Q What was that unusual incident?
conclusively showing that it was
A At that time Dante Deopante was lying appellant who was the unlawful
A Nakita ko po si Rogelio Deopante na on his back and this Rogelio Deopante aggressor, appellants claims of self-
tikad-tikad ng saksak si Dante Deopante stabbed him.[19]
defense must be completely discounted,
since even incomplete self-defense, by
141
its very nature and essence, always accused and who witnessed the latter We see no reason to disturb the trial
would require the attendance of unlawful grappling with the victim on the ground, courts evaluation and assessment of the
aggression initiated by the victim which did not see Dante took out a knife and credibility of witnesses, the same not
must clearly be shown.[21] We agree that the accused managed to wrest it being tainted by any arbitrariness or
with the finding of the trial court that:
away or else the defense would certainly palpable error. Jurisprudence teaches us
underscore such an event and made that the findings of the trial court judge
There is no gainsaying the fact that the much of it during his testimony in court. who tried the case and heard the
accused herein was responsible for The fact that he did not state such a witnesses are not to be disturbed on
slaying his nephew and victim Dante circumstance gave the lie to such appeal unless there are substantial facts
Deopante. Only, by way of avoidance, posture taken by the accused.[22]
and circumstances which have been
the accused stated that while he and his overlooked and which, if properly
nephew were rolling and grappling on Furthermore, based on the number of considered, might affect the result of the
the ground, the latter took a knife out of stab wounds sustained by the victim, we case. The trial judges evaluation of the
nowhere but he managed to wrest it are convinced that the accused did not witness credibility deserves utmost
away from his nephew and he stabbed act in self-defense in killing the former. It respect in the absence of arbitrariness.
him (Dante Deopante) with it.
is an oft-repeated rule that the presence [24] Furthermore, conclusions and
of a large number of wounds on the part findings of the trial court are entitled to
Such a posture adopted by the accused of the victim negates self-defense; great weight on appeal and should not
deserves scant consideration from the instead it indicates a determined effort be disturbed unless for strong and valid
Court.
to kill the victim.[23] Accused, after reasons because the trial court is in a
struggling with the victim, had the latter better position to examine the demeanor
For one, the victim would not have time on his back and in obviously helpless of the witnesses while testifying on the
to draw a knife from his person and then and vulnerable position. Even assuming case.[25]

opened it while at the same time arguendo that it was the deceased who
grappling with his uncle while both were had initiated the attack and accused We reviewed the entire record of the
rolling on the ground.
was merely defending himself, clearly case, and found that the trial court
there could not have been any need for correctly gave credence to the
For another, such declaration was self- him to stab the victim twice if the testimonies of Manolo Angeles and
serving on the part of the accused and purpose was simply to disable the victim Renato Molina. As aptly stated by it:

remains unsupported by the evidence. or make him desist from his unlawful
Even the accuseds own witness and assault.
So it is that the Court gave full credence
fried for a long time Benito Carrasco to the eyewitnesses accounts of
who professed that he was only about Fourth Issue: Credibility of Witnesses
prosecution witnesses Manolo Angeles
five to seven meters away from the and Renato Molina.

142

Both are disinterested eyewitnesses.
theory of self-defense:
at the scene when he was his father and
Manolo Angeles would not testify falsely
against accused because the latter is
the uncle of the full blood of his wife,
being the daugther of the sister of the
accused. He would not dare incur the
wrath of his wife and her family,
specially of the accused whose
which definitely tends to negate the
Again, another defense witness
presented was Vladimir Deopante, son
of the accused who mentioned in
passing during the course of his
testimony that when informed of an on-
going quarrel involving hid father, he
immediately proceeded to the place
It may be that this witness was actually
cousin were grappling on the ground
and seeing that his father had a knife in
his hand and had the upper hand as well
as in control of the situation, he did not
interfere but turned back and went
home and informed his mother. This
would be more in keeping with the
natural course of events.[27]

temperament he well knew.

where the incident was going on and
there and then saw his father grappling Fifth issue: Incomplete Self-Defense

The same is true with Renato Molina. He on the ground with his cousin Dante and
resides nearby and in the same locality the latter was holding a weapon with his Appellant argues that the trial court
as the accused and the victim, the latter left hand so much so that he went back should have applied Art. 69 of the
being his childhood friend.
home and informed his mother about Revised Penal Code which provides for
the matter and he was instructed to go imposition of a penalty lower by one or
Knowing the accused very well and his back and pacify the protagonists.
two degrees than that prescribed by law
reputation, he dare not trifle with the where the killing is not wholly excusable,
truth and testify falsely against him. In This portion of the testimony of Vladimir as in the case at bar, given the absence
fact, he was very reluctant to testify and Deopante sounded incredulous and of some of the requisites to justify the
it took the coercive process of the Court unbelievable.
killing. Appellant is in error. Said
to bring him to the witness stand.
provision of law applies only where a
Confronted with a like situation, a son, majority of the conditions required to
Besides his presence at the scene of the seeing that his father being justify a criminal act or exempt from
stabbing incident was even (beleaguered) and in immediate danger liability are present. Such is not the
acknowledged by the accused himself of being stabbed and possibly killed, situation in the case at bar. Unlawful
during the trial so that this witness would instinctively and intuitively rush in, aggression is indispensable in self-
testimony is well worth considering."[26]
come (to) succor and render immediate defense, complete or otherwise. When
assistance to his endangered parent and unlawful aggression (by the victim) alone
Furthermore, we note and concur in the would not turn back on his father and go is proved, such incomplete self-defense
court a quos assessment of the back home to await instructions on what is to be appreciated as an ordinary
testimony of the son of the accused, to do under the premises.
mitigating circumstance under Article
13, paragraph 1 of the Revised Penal
143
Code. When it is combined with another SANDIGANBAYAN and PEOPLE OF THE approved by the Barangay Council as its
element of self-defense, such PHILIPPINES, respondents.
livelihood project, and thereafter,
incomplete self-defense becomes a accused submitted the falsified
privileged mitigating circumstance under Melquiades P. De Leon for petitioner.
resolution to the MHS-MMC-KKK
Article 69 of the same Code.[28] But in Secretariat which endorsed the same to
the instant case, as already mentioned Eugene C. Paras collaborating counsel the Land Bank of the Philippines, which
above, it was conclusively shown that for the petitioner.
on the basis of said endorsement and
appellant was the aggressor.
the falsified resolution, encashed LBP
check No. 184792 in the amount of TEN
WHEREFORE, the herein appealed VITUG, J.:
THOUSAND PESOS (P10,000.00), which
Decision convicting appellant Rogelio check was earlier received by him as
Deopante y Carillo of the crime of An information, accusing Felix Nizurtado Barangay Captain of Panghulo in trust
murder and imposing on him the penalty of having committed the complex crime for the Barangay for its livelihood project
of reclusion perpetua and the payment of malversation of public funds through and for which fund accused became
to the victims heirs of civil indemnity in falsification of public document, reads:
accountable, and upon receipt thereof
the amount of P50,000.00 is hereby herein accused, with deliberate intent
AFFIRMED in toto. No costs.
That on or about August 25, 1983, and and grave abuse of confidence did then
for sometime prior or subsequent and there willfully, unlawfully and
SO ORDERED.
thereto, in the City of Caloocan, feloniously misappropriate, misapply
Philippines and within the jurisdiction of and convert to his own personal use and
= = =
this Honorable Court, the abovenamed benefit the amount of TEN THOUSAND
accused, a public officer, being then the PESOS (P10,000.00) out of the funds for
Republic of the Philippines
Barangay Captain of Panghulo, which he was accountable, to the
SUPREME COURT
Malabon, Metro Manila, did then and damage and prejudice of the
Manila
there, willfully, unlawfully and feloniously government in the said amount.

falsify and attest Resolution No. 17

EN BANC
Series of 1983 by making it appear that CONTRARY TO LAW. 1

on August 25, 1983 the Barangay

council of Panghulo met and identified When arraigned by the Sandiganbayan,

T-shirt manufacturing as its livelihood Nizurtado pleaded "not guilty" to the
G.R. No. 107383 December 7, 1994
project, when in truth and in fact, as the charge. During the pre-trial, held on 17
accused fully well knew, no such July 1989, the prosecution and the
FELIX NIZURTADO, petitioner,
meeting was held, where T-shirt defense stipulated thusly:

vs.
manufacturing was identified and
144
1. That sometime in 1983 and 1984,
accused Felix Nizurtado was the
Barangay Captain of Barangay Panghulo
of Malabon, Metro Manila and
name. The check, however, could be
discharged his functions as such;
2. That sometime in 1983, the
Ministry of Human Settlements, the
Metro Manila Commission and Kilusang
Kabuhayan at Kaunlaran (KKK)
After evaluating the evidence adduced,
the Sandiganbayan came out with its
factual findings and conclusions,
hereunder detailed:
encashed only upon submission to the
It appears from the evidence, testimonial
and documentary, as well as from the
stipulations of the parties that accused
Felix V. Nizurtado was the Barangay
Captain of Barangay Panghulo,
After the seminar, Nizurtado received a
check for P10,000.00 intended for
Barangay Panghulo and issued in his
Secretariat of a resolution approved by
the Barangay Council identifying the
livelihood project in which the loan
would be invested. He entrusted the
check to Romero for safekeeping.

undertook a Livelihood Program for Malabon, Metro Manila from 1983 to

Barangays in Metro Manila consisting of 1988.
In one of its regular sessions, which was
loans in the amount of P10, 000.00 per on the second Saturday of each month,
barangay.
In April or May 1983, Nizurtado and the Barangay Council of Panghulo
Manuel P. Romero, Barangay Treasurer discussed the project in which to invest
3. That as Barangay Captain of of Panghulo, attended a seminar at the the P10,000.00. Among the proposals
Barangay Panghulo, accused received a University of Life, Pasig, Metro Manila. was that of Romero that a barangay
check in the amount of P10,000.00 for The seminar was about the Barangay service center be established. But the
said barangay's livelihood program;
Livelihood Program of the Ministry of meeting ended without the Councilmen
Human Settlements (MHS), the Metro agreeing on any livelihood project.

4. That the check, to be encashed, Manila Commission (MMC), and the

had to be supported by a project
proposal to be approved by the KKK;
Under the program, the barangays in
5. That the accused encashed the
check received by him in the amount of
P10,000.00 with the Land Bank of the
Philippines; and
the modules developed by the KKK
6. That the accused distributed the
Kilusang Kabuhayan at Kaunlaran (KKK). A few days after the meeting, Nizurtado
got back the check from Romero, saying
Metro Manila could avail of loans of that he would return it because, as
P10,000.00 per barangay to finance admitted by Nizurtado during the trial,
viable livelihood projects which the the Councilmen could not agree on any
Barangay Councils would identify from livelihood project. Nizurtado signed a
receipt dated August 4, 1983, for the
Secretariat or which, in the absence of check "to be returned to the Metro
such modules, the Councils would Manila Commission."

amount of P10,000.00 in the form of choose subject to the evaluation/

loans of P1,000.00 each to members of validation of the Secretariat.
After a few more days, Nizurtado asked
the barangay council. 2
Romero to sign an unaccomplished
resolution in mimeograph form. All the
145
blank spaces in the form were unfilled- Unknown to Romero and Gomez, the Santos Gomez Barangay
up, except those at the bottom which blank but signed resolution was later on Councilman

were intended for the names of the accomplished by writing in the blank Jose Bautista Barangay
Barangay Councilmen, Secretary, and space below the paragraph reading:
Councilman

Captain, which were already filled-up Alfredo Dalmacio Barangay

and signed by Councilmen Marcelo WHEREAS, the Barangay Council now Councilman

Sandel, Jose Bautista, Alfredo Aguilar, in this session had already identified one Ceferino Roldan Barangay
Alfredo Dalmacio, F.A. Manalang (the livelihood project with the following title Councilman

alleged Barangay Secretary), and and description:

Nizurtado. In asking Romero to sign, The word "none" was inserted in the
Nizurtado said that the MMC was the following:
space intended for the names of the
hurrying up the matter and that the Councilmen who did not attend. The
livelihood project to be stated in the Title : T-shirt Manufacturing
resolution was given the number "17"
resolution was that proposed by Romero Description : Manufacture of series of "1983." Finally, the last line
— barangay service center. Trusting round neck T-shirts of
before the names and signatures of the
Nizurtado, Romero affixed his signature various sizes and colors.
Councilmen was completed by
above his typewritten name. When he typewriting the date so that it now
did so, the blank resolution did not yet The other blank spaces in the resolution reads:

bear the signatures of Councilmen were also filled-up. Thus "Panghulo,"

Santos Gomez and Ceferino Roldan.
"Brgy. Hall," and "August 25, 1983" UNANIMOUSLY APPROVED this 25th
were typewritten in the spaces for the day of August, 1983.

The blank resolution having already name of the Barangay, the place where
been signed by Romero, Nizurtado and the date when the council meeting The resolution as fully accomplished is
asked him to talk with Gomez and took place, respectively. In the blank now marked Exhibit D.

secure the latter's signature. Romero spaces for the names of the members of
obliged and upon his pleading that his the Council who attended the meeting Other supporting documents for the
proposed barangay service center were typewritten the names of
encashment of the check of P10,000.00
would be the one written in the blank were also prepared, signed, and filed by
resolution, Gomez signed. But before he Felix Nizurtado Barangay Captain
Nizurtado. They were: Project
returned the resolution, he had it Marcelo Sandel Barangay Identification (Exhibit B), Project
machine copied. The machine copy is Councilman
Application in which the borrower was
now marked Exhibit J.
Alfredo Aguilar Barangay stated to be Samahang Kabuhayan ng
Councilman
Panghulo (Exhibit C and C-1), Project

146
Location Map (Exhibit E), and and advising him to collect, through the As of September 7, 1984, the members
Promissory Note
Secretary or Treasurer.
of the Council who had received
(Exhibit F).
P1,000.00 each, as well as Bacani (also
Since Romero and Gomez had not referred to as Manalang) and Soledad
The application for loan having been borrowed any amount from the said who had received P500.00 each had
approved, the Promissory Note (Exhibit fund, they told Sandel to ask Nizurtado paid their respective loans to Nizurtado
F) was re-dated from August to October if he had any proof of their alleged loans. who, in turn, remitted the payments to
18, 1983, placed in the name of the So Sandel wrote Nizurtado on May 2, the MMC on these dates:

Samahang Kabuhayan ng Panghulo 1984, but the latter did not answer.

represented by Nizurtado, and made April 16, 1984 P1,450.00

payable in two equal yearly This attempt to collect from Romero and August 14, 1984 3,550.00

amortizations of P5,000.00 each from its Gomez prompted them to make September 7, 1984 3,000.00

date. The purpose of the loan was inquiries. They learned that the check for ————

stated to be
P10,000.00 was indeed encashed by
T-Shirt Manufacturing of round neck Nizurtado and that the blank resolution Total P8,000.00

shirts of various sizes and colors.

which they had signed was filled-up to
make it appear that in a Council meeting In June 1987, after demands for
Nizurtado encashed the check on the where all councilmen were present on payment, Dalmacio remitted the balance
same day, October 18, 1983, and re-lent August 25, 1983, T-shirt manufacturing of P2,000.00 from his pocket because,
the cash proceeds to himself, Sandel, was adopted as the livelihood project of as acting Barangay Captain, he did not
Aguilar, Bautista, Dalmacio, and Roldan Panghulo. But no such meeting want to leave the Barangay with an
at P1,000.00, and to Manalang and Oro occurred on that day or on any other indebtedness.3

Soledad, Barangay Court Secretary and day. Neither was Nizurtado authorized
Barangay Secretary, respectively, at by the Council to submit T-shirt On the basis of its above findings, the
P500.00 each.
Manufacturing as the livelihood project Sandiganbayan convicted the accused
of Panghulo.
of the offense charged. The dispositive
On April 25, 1984, Nizurtado who was portions of its decision, promulgated on
then on leave wrote Sandel, then acting On August 9, 1984, Romero and Gomez 18 September 1992, read:

Barangay Captain, informing him that lodged their complaint against Nizurtado
per record, he, Romero, and Gomez had with the Office of the Tanodbayan. After WHEREFORE, the Court finds Felix
not made any remittance for the account due preliminary investigation, this case Nizurtado y Victa guilty beyond
of their P1,000.00 loans from the was filed.
reasonable doubt of the complex crime
barangay livelihood fund of P10,000.00 of malversation of public funds
committed through falsification of public
147
document and, appreciating in his
favor . . . two mitigating circumstances
and applying the Indeterminate
Sentence Law, imposes upon him the
penalties of imprisonment ranging from
FOUR (4) YEARS, NINE (9) MONTHS,
and ELEVEN (11) DAYS of prision
2. It has committed serious error of
law and gravely abused its discretion in
finding petitioner guilty of malversation
of the amount of P10,000.00 which he
had received as a loan from the then
Metro Manila Commission in his
1. The penalty of prision
correccional in its medium and
maximum periods, if the amount
involved in the misappropriation or
malversation does not exceed two
hundreds pesos.

correccional as minimum to EIGHT (8) capacity as representative of the

YEARS, EIGHT (8) MONTHS, and ONE Samahang Kabuhayan ng Barangay 2. The penalty of prision mayor in its
(1) DAY of prision mayor as maximum; Panghulo, Malabon, Metro Manila. 5
minimum and medium periods, if the
perpetual special disqualification; and a amount involved is more than two
fine of P10,000.00.
The Solicitor General Agrees in all hundred pesos but does not exceed six
respects with the Sandiganbayan in its thousand pesos.

No pronouncement is made as to civil findings and judgment except insofar as

liability, there having been complete it has found petitioner to have likewise 3. The penalty of prision mayor in its
restitution of the amount malversed.
committed the crime of falsification of a maximum period to reclusion temporal
public document.
in its minimum period, if the amount
With costs.
involved is more than six thousand
Article 217 of the Revised Penal Code pesos but is less than twelve thousand
SO ORDERED.4
provides:
pesos.

His motion for reconsideration having Art. 217. Malversation of public 4. The penalty of reclusion temporal
been denied, Nizurtado has filed the funds or property. — Presumption of in its medium and maximum periods, if
instant petition for review on certiorari. malversation. — Any public officer who, the amount involved is more than twelve
Petitioner faults the Sandiganbayan in by reason of the duties of his office, is thousand pesos but is less than twenty-
that —
accountable for public funds or property, two thousand pesos. If the amount
shall appropriate the same, or shall take exceeds the latter, the penalty shall be
1. It has committed grave abuse of or misappropriate or shall consent, or reclusion temporal in its maximum
discretion in finding that Resolution No. through abandonment or negligence, period to reclusion perpetua.

17, dated August 25, 1983, of the shall permit any other person to take
Barangay Council of Panghulo, such public funds or property, wholly or In all cases, persons guilty of
Malabon, Metro Manila (Exh. "D") is a partially, or shall otherwise be guilty the malversation shall also suffer the penalty
falsified document and that the misappropriation or malversation of of perpetual special disqualification and
petitioner is the forger thereof; and
such funds or property, shall suffer:
a fine equal to the amount of the funds
148
malversed or equal to the total value of 1988; in that capacity, he received and loans to themselves. He submitted, in
the property embezzled.
later encashed a check for P10,000.00, support thereof, a belated 7 certification
specifically intended by way of a loan to issued by Rodolfo B. Banquicio, Chief of
The failure of a public officer to have the barangay for its livelihood program; District IV of the Support Staff and
duly forthcoming any public funds or and the funds had come from the Malabon Sub-District Officer of KKK, to
property with which he is chargeable, Ministry of Human Settlements, the the effect that Barangay Captains were
upon demand by any duly authorized Metro Manila Commission and "Kilusang given discretionary authority to invest
officer, shall be prima facie evidence that Kabuhayan at Kaunlaran."
the money in any viable project not
he has put such missing funds or falling within the list of project modules
property to personal use.
The only point of controversy is whether provided by the MHS-NCR
or not Nizurtado has indeed Management. Lending the unutilized
The elements of malversation, essential misappropriated the funds.
funds to the members of the Barangay
for the conviction of an accused, under council could have hardly been meant to
the above penal provisions are that —
Petitioner was able to encash the check be the viable project contemplated
on 18 October 1988 on the basis of a under that certification. Furthermore, it
(a) the offender is a public officer;
resolution of the Barangay Council, would appear that only Regional Action
submitted to the KKK Secretariat, to the Officer Ismael Mathay, Jr., and Deputy
(b) he has the custody or control of effect that a livelihood project, i.e., "T- Regional Action Officer Lilia S. Ledesma
funds or property by reason of the shirt manufacturing," had already been were the officials duly authorized to
duties of his office;
identified by the council. The money, approve such projects upon the
however, instead of its being used for recommendation of the KKK Secretariat.
(c) the funds or property involved are the project, was later lent to, along with 8 We could see no flaw in the
public funds or property for which he is petitioner, the members of the Barangay ratiocination of the Sandiganbayan,
accountable; and
Council. Undoubtedly, the act when, in rejecting this defense, it said:

constituted "misappropriation" within

(d) he has appropriated, taken or the meaning of the law.6
The defense evidence that the Barangay
misappropriated, or has consented to, Council changed the T-shirt
or through abandonment or negligence Accused-appellant sought to justify the Manufacturing to whatever business
permitted, the taking by another person questioned act in that it was only when ventures each members of the Council
of, such funds or property.
the members of the Barangay Council would select for investment of his
had realized that P10,000.00 was not P1,000.00 has, as already stated, little, if
Nizurtado was a public officer, having enough to support the T-shirt any, probative value.

been the Barangay Captain of Panghulo, manufacturing project, that they decided
Malabon, Metro Manila, from 1983 to to distribute the money in the form of
149
But assuming there was such a change,
the same is of no avail. The Resolution
marked Exhibit D expressly stated that
the P10,000.00 "shall only be
appropriated for the purpose/s as
provided in the issued policies and
guidelines of the program." The
guidelines, in turn, prescribed that the
livelihood project shall be identified from
Barangay Councilman Santos A. Gomez
the modules developed by the KKK
Secretariat or, as stipulated in the
Romero. The two testified that no
Resolution itself, in the absence of such
modules, shall be chosen by the
Samahang Kabuhayan "subject to the
evaluation/validation of the KKK
Secretariat." There is absolutely no
showing that the alleged substitute
projects which each lendee of P1,000.00
would select were among those of the
developed modules or were submitted
to the KKK Secretariat for evaluation/
service center would so later be
validation.9
barangay livelihood project.
Accused-appellant criticizes the
Sandiganbayan for its having failed to
consider the fact that no valid demand
has been made, or could have been
made, for the repayment of the loaned
support it, those findings are binding on
sum. Demand merely raises a prima
facie presumption that missing funds
have been put to personal use. The
demand itself, however, is not an
element of, and not indispensable to
constitute, malversation. Even without a
demand, malversation can still be
committed when enough facts, such as
here, are extant to prove it. 10
Accused-appellant was charged with
having committed the crime through the
falsification of a public document
punishable under paragraph 2 of Article
171 of the Revised Penal Code.
The pertinent provisions read:
Art. 171. Falsification by public
officer, employee or notary or
ecclesiastic minister. — The penalty of
prision mayor and a fine not to exceed
5,000 pesos shall be imposed upon any
public officer, employee, or notary who,
taking advantage of his official position,
shall falsify a document by committing
any of the following acts:
indicated in that resolution as the
xxx xxx xxx
2. Causing it to appear that persons
have participated in any act or
proceeding when they did not in fact so
participate;
In falsification under the above-quoted
paragraph, the document need not be
an authentic official paper since its
simulation, in fact, is the essence of
falsification. So, also, the signatures
appearing thereon need not necessarily
be forged. 11
In concluding that the Barangay Council
resolution, Exhibit "D," 12 was a falsified
document for which petitioner should be
held responsible, the Sandiganbayan
gave credence to the testimonies of
and Barangay Treasurer Manuel P.
meeting had actually taken place on 25
August 1983, the date when
"T-shirt manufacturing" was allegedly
decided to be the barangay livelihood
project. The Sandiganbayan concluded
that Nizurtado had induced Romero and
Gomez to sign the blank resolution,
Exhibit "J" 13 on the representation that
Romero's proposal to build a barangay
The established rule is that unless the
findings of fact of the Sandiganbayan
are bereft of substantial evidence to
this court.
The Sandiganbayan has considered the
mitigating circumstances of voluntary
surrender and restitution in favor of
Nizurtado. Deputy Clerk of Court
150
Luisabel Alfonso Cortez, on 17 January or more grave or less grave felonies, or degree, the full range of the penalty
1989, has certified to the voluntary when an offense is a necessary means prescribed by law for the offense, not
surrender of the accused thusly:
for committing the other, the penalty for merely the imposable penalty because
the most serious crime shall be of its complex nature, should, a priori,
C E R T I F I C A T I O N
imposed, the same (the penalty) to be be considered. It is our considered view
applied in the maximum period. The that the ruling in People vs. Gonzales,
THIS CERTIFIES that accused FELIX penalty prescribed for the offense of 73 Phil. 549, as opposed to that of
NIZURTADO in criminal Case No: 13304 malversation of public funds, when the People vs. Fulgencio, 92 Phil. 1069, is
voluntarily surrendered before this court amount involved exceeds six thousand the correct rule and it is thus here
on JANUARY 17, 1989 and posted his pesos but does not exceed twelve reiterated. In fine, the one degree lower
bail bond in said case.
thousand pesos, is prision mayor in its than prision mayor maximum to
maximum period to reclusion temporal reclusion temporal minimum is prision
Manila, Philippines, JANUARY 17, 1989
in its minimum period; in addition, the mayor minimum to prision mayor
offender shall be sentenced to suffer medium (being the next two periods in
(sgd.)
perpetual special disqualification and to the scale of penalties [see Art. 64, par 5,
pay a fine equal to the amount in relation to Art. 61, par 5, Revised
LUISABEL ALFONSO CORTEZ
malversed (Art. 217[3], Revised Penal Penal Code]) the full range of which is
Deputy Clerk of Court 14
Code). The penalty of prision mayor and six years and one day to ten years. This
a fine of five thousand pesos is one degree lower penalty should,
Voluntary surrender (Art. 13, par. 7, prescribed for the crime of falsification conformably with Article 48 of the Code
Revised Penal Code), therefore, may under Article 171 of the Revised Penal (the penalty for complex crimes), be
thus be treated as a modifying Code. The former (that imposed for the imposed in its maximum period or from
circumstance independent and apart malversation), being more severe than eight years, eight months and one day
from restitution of the questioned funds the latter (that imposed for the to ten years. The presence of the third
by petitioner (Art. 13, par. 10, Revised falsification), is then the applicable mitigating circumstance of praeter
Penal Code). We are convinced, prescribed penalty to be imposed in its intentionem (lack of intention to commit
furthermore, that petitioner had no maximum period. The actual attendance so grave a wrong as that committed)
intention to commit so grave a wrong as of two separate mitigating would result in imposing a period the
that committed. (Art. 13, par. 3, Revised circumstances of voluntary surrender court may deem applicable. 15
Penal Code), entitling him to three and restitution, also found by the Considering, however, that the penalty
distinct mitigating circumstances.
Sandiganbayan and uncontested by the has to be imposed in the maximum
Solicitor General, entitles the accused to period, the only effect of this additional
Under Article 48 of the Revised Penal the penalty next lower in degree. For mitigating circumstance is to impose
Code, when a single act constitutes two purposes of determining that next lower only the minimum portion of that
151
maximum period, 16 that is, from eight ponencia that appellant deserves an EMMANUEL ARANAS, PALERMO SIA,
years, eight months and one day to nine executive commutation of the statutory RONNIE RAMBUYON, PRIMO
years, six months and ten days, from minimum sentence pronounced by this NAVARRO and NOEL NAVARRO,
which range the maximum of the Court.
petitioners,

indeterminate sentence shall be taken.

vs.

WHEREFORE, the decision of the JUDGE SINFOROSO V. TABAMO, JR.

Under the Indeterminate Sentence Law Sandiganbayan convicting Nizurtado for respondent.

(which can apply since the maximum malversation of public funds through
term of imprisonment would exceed one falsification of public document is Hermosisima, Sision & Inso for
year), the court is to impose an AFFIRMED but the sentence, given the petitioners.

indeterminate sentence, the minimum of circumstances here obtaining, is

which shall be anywhere within the MODIFIED by imposing on petitioner a R E S O L U T I O N

range of the penalty next lower in reduced indeterminate sentence of from

degree (i.e., prision correccional in its two years, four months and one day to
medium period to prision correccional in eight years, eight months and one day, KAPUNAN, J.:

its maximum period or anywhere from perpetual special disqualification and a

two years, four months and one day to fine of P2,000.00.
For this Court's consideration is a letter-
six years) and the maximum of which is complaint, dated May 5, 1992 of
that which the law prescribes after SO ORDERED.
Governor Antonio A. Gallardo of the
considering the attendant modifying Province of Camiguin and other officials
circumstances. In view of the mitigating = = =
of the said province, charging Judge
circumstances present in this case, the Sinforoso V. Tabamo, Jr. of the Regional
fine of P10,000.00 may also be reduced Republic of the Philippines
Trial Court, Branch 28, at Mambajao,
(Art. 66, Revised Penal Code) and, since SUPREME COURT
Camiguin with manifest bias and
the principal penalty is higher than Manila
partiality and highly irregular and
prision correccional, subsidiary outrightly illegal acts in connection with
imprisonment would not be warranted. EN BANC
two cases filed before his court, namely:

(Art. 39, par. 3, Revised Penal Code).

A. Special Civil Case No. 465
The law and the evidence no doubt entitled "Pedro P. Romualdo vs.
sustains Nizurtado's conviction. Given A.M. No. RTJ-92-881 June 2, 1994
Governor Antonio A. Gallardo, et al." for
all the attendant circumstances, it is, Injunction, Prohibition, and Mandamus
nevertheless, the personal and humble ANTONIO A. GALLARDO, ANTONIO with Prayer for the Issuance of a Writ of
opinion of the assigned writer of this AREVALO, CRESENCIO ECHAVEZ,
152
Preliminary Injunction and Restraining
Order; and
according to complainant, were
B. Criminal Case No. 561 entitled
"People vs. Ruel D. Dagondon, et al." for
Illegal Possession of Indian Hemp
(marijuana).
1992 elections. This Court, in a
In Special Civil Action No. 465,
respondent judge issued an Order
restraining the continuance of various
public works projects being undertaken
by the provincial government and the
disbursement of funds therefor, allegedly
imposed by the Omnibus Election Code
in violation of a 45-day ban on public
works imposed by the Omnibus Election
Code. Complainant alleged that
approved detailed engineering plans and
respondent Judge, in spite of the fact
that it was the Commission on Elections,
not the Regional Trial Court, which had
jurisdiction over the case, took
cognizance of the same and issued the
temporary restraining order.
congressmen and governor,
In Criminal Case No. 561, respondent
Judge is accused to have imposed the
reviewed by the Department of Budget
wrong sentence in violation of specific
provisions of the Dangerous Drugs Law,
the Indeterminate Sentence Law and the
projects requiring massive outlay or
Revised Penal Code in order to afford
the accused in said case the right to
avail of provisions of the Probation Law.
before the Regional Trial Court of
Respondent Judge's actuations,
Provincial Auditor, the Provincial
intended to favor the political faction of
Congressman Pedro P. Romualdo in the
struggle with the group of Governor
Gallardo for political supremacy in the
undertaking and/or pursuing certain
resolution dated March 18, 1993,
referred the administrative matter to
Justice Salome A. Montoya of the Court
of Appeals for investigation, report and
recommendation. Complying with said
resolution, Justice Montoya, in her final
report, found the evidence as follows:
A. Re: SPECIAL CIVIL ACTION NO.
465:
It appears that Cong. Pedro P.
Romualdo and Gov. Antonio R. Gallardo
were both candidates in the May 11,
1992 elections for the positions of
that locally funded projects had been
respectively, of Camiguin. They
belonged to opposing political factions
and were in a bitter electoral battle.
On April 10, 1992 or about a month
before the elections,
Cong. Romualdo filed a petition
docketed as Special Civil Action No. 465
to corrupt voters and induce them to
Camiguin (Br. 28) presided over by
respondent Judge Tabamo against Gov.
Gallardo, the Provincial Treasurer, the
Engineer, and the Provincial Budget
Officer as respondents. In this petition
Cong. Romualdo sought to prohibit and
restrain the respondents from
public works projects and from
disbursing, releasing, and/or spending
public funds for said projects, allegedly
because, among other reasons, said
projects were undertaken in violation of
the 45-day ban on public works
(B.P. Blg. 881); that the public works
projects were commenced without the
specification and corresponding
program of works; that the expenditures
of the 20% development fund for
projects other than for maintenance
violated the Local Government Code;
pursued without the provincial budget
having been first approved, and
and Management; and that the illegal
prosecution of the said public works
public funds during the election period
was done maliciously and intentionally
support the candidacy of Gov. Gallardo
153
and his ticket in the May 11, 1992 prayer for the issuance of a preliminary release of their salaries. Most of the
elections.
injunction for hearing on April 24, 1992 placards expressed contempt and
at 8:30 A.M.
ridicule for the judge and referred to him
In the afternoon of the same day that the as the "tuta" of Cong. Romualdo and to
petition was filed, Judge Tabamo issued Gov. Gallardo testified that when he the RTC as the "Romualdo-Tabamo-
a temporary restraining order as prayed received a copy of the restraining order Court" and "Romualdo Tabamo-
for by the petitioner Cong. Romualdo, as and reviewed the petition filed, being a Corruption".

follows:
lawyer, he at once saw that the same
It appearing from the verified petition in
this case that great and irreparable
damage and/or injury shall be caused to
the petitioner as candidate and taxpayer,
such damage or injury taking the form
and shape occasioned by the alleged
wanton, excessive, abusive and flagrant
waste of public money, before the
matter can be heard on notice, the
respondents are hereby Temporarily
Restrained from pursuing or prosecuting
the project itemized in Annexes "A" and
"A-1" of the petition; from releasing,
disbursing and/or spending any public
funds for such projects; from issuing,
Tabamo, and the laborers did not feel
using or availing of treasury warrants or
was not within the jurisdiction of the
Regional Trial Court. He said that the
elections were nearing and all their
projects were suspended, the laborers
could not get their salaries, and the
judge had set the hearing of the
injunction on April 24, 1992 or very close
to the elections of May 11, 1992.
Believing that he could not get justice
from the respondent court, he decided
to go to the Supreme Court where he
filed a petition for certiorari (docketed as
G.R. No. L-104848) questioning the
issuance of the temporary restraining
order and the jurisdiction of the court
over Special Civil Action No. 465.
Respondent Judge Tabamo testified in
this regard that the rallyists were
laborers affected by the restraining
order. They were taken from all over the
island of Camiguin and loaded in several
cargo trucks chartered by the followers
of Gov. Gallardo. Judge Tabamo saw
some of his relatives among the rallyists
and when he asked them why they were
there, he was told that the laborers were
gathered on the representation that they
would collect their salaries in Mambajao,
they were told that they could not
receive their salaries because of the
restraining order issued by Judge
good about it.

any device undertaking future delivery of xxx xxx xxx

money, goods, or other things of value xxx xxx xxx

chargeable against public funds in On April 13, 1992 a rally or

connection with the said projects.
demonstration was held in front of the In the afternoon of April 23, 1992 Judge
premises of the Regional Trial Court of Tabamo received a telegram from the
In the same Order of April 10, 1993 the Camiguin. People, composed mostly of Supreme Court in connection with G.R.
judge gave the respondents ten (10) the unpaid laborers, carried placards No. L-104848, the petition for certiorari
days from receipt of a copy of the which protested the restraining order filed by Gov. Gallardo reading as
petition to answer the same, and set the and urged Judge Tabamo to order the follows:

154

SUPREME COURT IN AN ORDER
his life was placed in danger.
DATED APRIL 20 IN G.R. NUMBER
104848 ENTITLED ANTONIO
GALLARDO ET AL. VERSUS
HONORABLE SINFOROSO TABAMO
JR. ET AL. REQUEST RESPONDENTS
TO COMMENT ON PETITION WITHIN
TEN DAYS FROM NOTICE AS WELL AS
Gallardo and Cong. Romualdo. Gov.
ISSUED TEMPORARY RESTRAINING
ORDER EFFECTIVE IMMEDIATELY AND
CONTINUING UNTIL FURTHER
ORDERS FROM COURT ORDERING
RESPONDENTS JUDGE TO CEASE
AND DESIST FROM IMPLEMENTING
AND ENFORCING YOUR QUESTIONED
ORDER DATED APRIL 10, 1992 AND
FROM CONTINUING WITH THE
PROCEEDINGS IN SPECIAL ACTION
NUMBER 465 ENTITLED PEDRO
ROMUALDO VERSUS GOVERNOR
ANTONIO GALLARDO ET AL. STOP
FORMAL ORDERS FOLLOWS END.
SUPREME COURT ASSISTANT CLERK
LUZVIMINDA PUNO.
latter heard the announcement, he told
After receiving this telegram Judge
Tabamo issued an Order on the same
and reported the matter, as shown in the
day of April 23, 1992 canceling the
hearing of the application for a writ of
preliminary injunction which had been
previously set for April 24, 1992. He also
said that he decided not to go to court
on April 24, 1992 in order to avoid being
caught in the crossfire between the two
great political leaders in his province.
It appears that on April 24, 1992 people
came to the premises of the court for
the hearing of the application for
injunction in SP No. 465. They were
composed of followers of both Gov.
son of Romualdo tried to hit him and still
Gallardo said he went there to inform the
judge about the temporary restraining
order issued by the Supreme Court,
thinking that the same had not been
communicated to the judge. Cong.
Romualdo was then likewise present.
The Clerk of Court of Judge Tabamo
announced that the case would not be
heard any more as the Supreme Court
had issued an order for Judge Tabamo
not to hear the case. After this
announcement, Cong. Romualdo
announced to the people that he had
already ordered Gov. Gallardo to give
the salaries of the laborers and when the
held down by his bodyguards.
the people that it was not Cong.
Romualdo responsible for the release of
the salaries.
Thereafter, there were passionate
exchanges of words between the two
factions and a rumble occurred among
the followers of Cong. Romualdo and
Gov. Gallardo, where many were hurt
and during which Gov. Gallardo claims
Aristeo Marbella, Jr., who testified in this
case for the complainants, said that he
was then with Gov. Gallardo and he was
choked by Jayjay Romualdo, the eldest
son of the congressman; that another
another son, Gogo Romualdo, also
choked him; that thereafter, Jayjay and
Gogo attacked Rollie Gallardo, brother
of Gov. Gallardo, and when he (Marbella)
turned around, Cong. Romualdo himself
choked him and wrestled with him; that
he pleaded with the congressman who
was his godfather but the latter
continued to pull and wrestle with him
and then the brother of the
congressman pulled his hair and George
Romualdo, a son of the congressman,
hit him at the back, and he fell down.
Marbella said that Gov. Gallardo tried to
help him and Rollie Gallardo but was
Thereafter, Marbella went to the police
police blotter of the Mambajao Police
Station. He said that he decided not to
file a case knowing that the same would
fall in the sala of Judge Tabamo and it
would be useless as Judge Tabamo is
the "tuta" or tool of Cong. Romualdo.
155

Another witness for the complainants on
rebuttal was Camilo Abanil, who testified
that on April 23, 1992 he was with
Edmundo Damisa and Ruben Cloma in a
Ford Fiera going around the province of
Camiguin on request of Gov. Gallardo
who asked them to announce to the
laborers that they could already collect
their salaries from the province; that
when they reached the town of Sagay,
they were stopped by Mayor Talian and
Vice Mayor Mabolo who was angry and
said that they were poisoning the minds
of the people; that the younger brother
of Vice Mayor Mabolo pulled down
Damisa from the Ford Fiera where they
were riding; that he (witness) went down
to pacify the person who pulled Damisa
but he was the one mauled; and that he
pleaded to the men and to the Mayor,
asking the latter to forgive him as they
had not committed any fault but only
followed Gov. Gallardo.
to, believing that the case will fall in the
Abanil said that he too reported the
matter to the police station where the
incident was placed in the blotter, and
that he later had himself examined by a
doctor who gave him a medical
RTC or Romualdo-Tabamo-Court even
certificate. Thereafter, he filed a case for
slight physical injuries against Tata
Mabolo (Crim. Case No. 3488).
testimony of Camilo Abanil on the
Abanil also testified on the incident of
April 24, 1992 when he went to the court
premises to witness the hearing
because he was among those not paid
his salary. He said he saw Junar
Marbella being mauled by the group of
Cong Romualdo and Rollie Gallardo
being chased by the same group; that
he saw Gov. Gallardo trying to help his
brother and Jun Marbella and when he
(witness) tried to go near Gov. Gallardo,
he was also chased by the group of
Cong. Romualdo who caught him at the
steps of the Capitol Building where
Cong. Romualdo boxed him, and
Dandan Romualdo kicked him, Gogo
Romualdo boxed him, and Dandan
Romualdo wrestled with him; that he fell
to the ground and the group of Cong.
Romualdo took turns kicking him; that
he has a medical certificate to show the
injuries he sustained; and that he at first
thought of filing a case but decided not
Capitol because the commotion was
sala of Judge Tabamo who is the ‘tuta'
or tool of Cong. Romualdo. He further
claimed that the reputation of Judge
Tabamo in Camiguin is no longer good
and that his court is termed RTC or
Romualdo-Tabamo-Court.
Edmundo Damisa, corroborated the
cockpit because he participates in
incident of April 23, 1992 when they
went around the province to announce
that the laborers can get their salaries
already, adding that Mayor Talian told
them to leave the municipality of Sagay,
otherwise they would be killed. He also
testified that on April 24, 1992 he was
outside the Capitol Building when he
noticed a big commotion in front of the
RTC which was about 30 to 40 meters
away; that he saw Rollie Gallardo being
chased by the men of Cong. Romualdo
and saw Junar Marbella being chased
and then choked and boxed by the
group of the congressman; that he also
saw Gov. Gallardo being held tightly by
his security men as he wanted to free
himself and help Marbella and Rollie
Gallardo; that he also saw the group run
after and maul Camilo Abanil; that he
himself was chased by Cong. Romualdo
who was holding a small gun so he ran
up the stairs of the Capitol; and that he
helped Gov. Gallardo get inside the
already very tense.
Damisan said he had known Judge
Tabamo since childhood days; that the
judge is not popular and is nicknamed
in the billiard halls and cockpit; and that
Judge Tabamo is often seen in the
derbies. He denied that Judge Tabamo
156
had told him to look for a lawyer instead
of making demands in the streets on
April 24, 1992 and said that what Judge
Tabamo told him was that it was not
easy for him to lift the restraining order
because he has children and it is Cong.
Romualdo, who is the godfather of one
In a judgment dated July 18, 1991 the
respondent Judge Sinforoso V. Tabamo,
Jr. found the accused guilty as charged
and sentenced him to an imprisonment
for the indeterminate period of from 2
years, 4 months and 1 day of prision
the appreciation of the court and that
even if these circumstances were
directly or indirectly touched during the
presentation of the defense of the
accused, their acceptability or credibility
is left to the sound discretion of the
judge.

of his children, who can help them; and
that Judge Tabamo also said that he
knew very well on whose side Damisa
was and the latter also knew on whose
Judgment dated July 18, 1991, by
side he (Judge Tabamo) was.
On January 29, 1993 the Supreme Court
rendered its Decision in G.R. No.
L-104848, the petition for certiorari filed
by Gov. Antonio Gallardo, et al. against
the respondent Judge Sinforoso V.
Tabamo, Jr. and Cong. Pedro P.
correccional in its medium period to 8
years and 1 day of prision mayor in its
medium period, and to pay a fine of
P6,000.00.
amending the penalty imposed on the
After this judgment was promulgated on
July 31, 1991, the accused Dagondon
filed a Notice of Appeal on the same
day. On August 7, 1991, however, the
accused withdrew his Notice of Appeal
and instead filed a Motion for
Reconsideration of the Judgment on
On August 26, 1991 respondent Judge
issued an Order modifying the
accused Dagondon to a minimum of 2
years, 4 months and 1 day of prision
correccional on its medium period to 6
years of prision correccional in its
maximum period, "in view of the
mitigating circumstances of extreme
poverty and voluntary surrender."

Romualdo, granting the same. The
Supreme Court ruled that the
respondent court had no jurisdiction
over Special Civil Action No. 465 and
ordered its dismissal. The challenged
August 9, 1991, praying that the penalty
imposed upon him be reconsidered and
that the following circumstances be
considered as mitigating in his favor: (1)
that the accused did not intend to
This modified judgment was
promulgated in open court on August
30, 1991 in the presence of the accused
Dagondon and his counsel.

temporary restraining order of April 10, commit so grave a wrong, (2) extreme
1992 was set aside.
poverty of the accused, (3) lack of Subsequently, the accused Dagondon
proper education, and (4) voluntary applied for probation, which the
B. RE: CRIMINAL CASE NO. 561:
surrender. The respondent Judge asked respondent judge granted in an Order
Public Prosecutor Julio A. Vivares to dated November 13, 1991.

One Ruel Dagondon was charged of comment on the motion. The latter filed
Illegal Possession of Indian Hemp a Comment dated August 19, 1991 Complainants charge that Judge
(Marijuana) in Criminal Case No. 561 stating that the bases for the motion for Tabamo modified the penalty so that
filed before the Regional Trial Court of reconsideration are matters that should Dagondon can apply for probation, upon
Camiguin (Branch 28).
have been established during the trial for orders of Cong. Pedro P. Romualdo who
157
was approached by a close relative of
Dagondon.
stated that Cong. Romualdo often goes
In support of this allegation, the
after the decision is read and that in the
complainants presented only the bare
testimony of Ceferino E. Chan, Jr., a
former process server in the court of the
respondent judge. Chan testified in this
regard that he was employed as process
server in Branch 28 from January, 1978
to April 1992 when he took a leave of
absence; that he is familiar with Criminal
Case No. 561 because sometime in
August, 1991 he served a copy of an
Order modifying the judgment to the
mother of Ruel Dagondon as the latter
was then not in the house; and that he
told Dagondon's mother that it was
good that the decision was changed
and the latter answered that they had
gone to Cong. Romualdo to ask for help.
their motorcycles.
Judge Tabamo denied that Cong.
Chan further testified that he resigned
from his position as process server
sometime in July, 1992 because the
people in Camiguin no longer respect
the court and even make fun of it, like
saying that the RTC means Romualdo-
Tabamo-Court; that people would also
say that it one wants to win a case in the
sala of Judge Tabamo, he should first
kiss the hand of Cong. Romualdo; and
that people used to ask where else they
could go since the court is already
controlled by Cong. Romualdo. He
promulgated in open court and that his
to the chambers of Judge Tabamo
sometimes only in shorts and T-shirts.
The respondent judge presented Alfreda
Daiz, OIC Clerk of Court of Branch 28 of
the RTC of Camiguin. She testified that
although Chan did not tell her the real
reason for his resignation from the court,
there was a time that Chan told them
that his mother wanted him to
administer their vast idle lands because
even they, the owners, did not know the
location and boundaries of their lands;
and that Chan also had the plan to put
up a business, particularly that of selling
motor parts, because he noticed the
motorcycle drivers travel as far as
Cagayan de Oro just to buy parts for
Judge Tabamo denied that he had sent
Chan to serve a copy of the modified
decision to the residence of Dagondon.
He stated that the modified decision
was promulgated in open court on
August 30, 1991, during which the
accused was present with his counsel,
hence there was no need to serve a
copy of the decision in his house. The
judge maintained that in all his 23 years
in the judiciary it was never his practice
to serve copies of decisions in criminal
cases to parties because they are
practice was to furnish their counsels
Dagondon case the lawyer was
furnished a copy of the modified
judgment in open court. He added that if
Chan had served a copy of the decision
before it was promulgated, then Chan
had leaked it out and should have been
made to answer for the act had he
known earlier about it.
At any rate, Judge Tabamo points out
that Chan has not presented any proof
to show that he served a copy of the
decision to Dagondon's mother and the
records of the case indeed do not show
that the alleged service was made.
Romualdo goes often to his chambers in
shorts and T-shirts, since the
congressman stays most of the time in
Manila and goes home only for special
occasions. He explained that Cong.
Romualdo used to go around the
province to inspect his projects and visit
his leaders and constituents, in the
same manner that Gov. Gallardo, being
a lawyer, makes it a point to visit the
offices of the Register of Deeds, the
fiscals, the courts and other offices and
engage the officials in conferences
158
regarding matters of vital concern, like FINDINGS —
projects were stopped and the laborers
the construction of the Hall of Justice.
could not get paid, he had to find a
RE: SPECIAL CIVIL ACTION NO. 465:
scapegoat, thus, the rally against
Judge Tabamo said that he had to
maintain a healthy relationship with the It may be conceded that on the basis
officials of the province. Incidentally, the alone of the actuations of respondent
Mayor of Mambajao is the wife of Cong. Judge in relation to Special Civil Case
Romualdo.
No. 465, there may be no clear and Special Civil Case No. 465 and issuing a
convincing evidence that respondent
Judge Tabamo further testified that Judge had acted with manifest bias and
before Chan resigned on July 1, 1992, partiality for Cong. Romualdo.
on the ground that it violated the 45-day
the latter went on leave to campaign for
his father who ran for mayor of The staging of the rally in front of the
Mambajao; that Chan's father lost in the courthouse on April 13, 1992 cannot be
elections but Chan refused to go back imputed to respondent Judge.
to work; and that he had to send Alfreda Obviously, the rally was orchestrated by
Daiz to tell Chan to go back to work or the group of Gov. Gallardo who picked
to resign. Judge Tabamo also said that up the participants from the different
Chan was bitter because a sister of his parts of the province. Also, the chaos
lost a estafa case in the court and a that took place on April 24, 1992 after
brother-in-law of Chan also lost his first this Court set aside the temporary
case before the court.
restraining order issued by respondent Zaldivar vs. Estenzo (23 SCRA 533)
Judge was occasioned by the attempt
The complainants point out in regard to of Cong. Romualdo to get the credit for
Criminal Case No. 561 that the court the fact that the laborers would now be
considered the mitigating circumstance paid. This was resented by Gov.
of voluntary surrender in favor of Gallardo and his followers, resulting in
Dagondon when the records show that the clash between the two contending
he was arrested in a buy-bust operation; groups. The motive of Gov. Gallardo in
and that the court imposed a maximum initiating the rally is not hard to find. He
of six (6) years and one (1) day provided had sponsored a number of public
under B.P. Blg. 179 for the offense works projects and hired hundreds of
committed by Dagondon.
laborers, which fact boosted his provisions, and the hospitable scope
chances of political victory. When the
respondent Judge.
However, respondent Judge can hardly
justify his acts not only of entertaining
temporary restraining order stopping the
prosecution of the public works projects
ban on public works imposed by the
Omnibus Election Code, but also, as will
be discussed later, of imposing a wrong
penalty in Criminal Case No. 561 and,
almost simultaneously, reducing the
penalty with the evident purpose of
allowing the accused to avail of the
benefits of the Probation Law. Being an
experienced judge, it is highly
inconceivable that he was not aware of
where this Court categorically held that
considering that the COMELEC is
vested by the Constitution with the
exclusive charge of the enforcement of
all laws relative to the conduct of
elections, the assumption of jurisdiction
by the trial court over a case involving
the enforcement of the Election Code "is
at war with the plain constitutional
command, the implementing statutory
159
afforded such grant of authority so clear
and unmistakable in recent decisions."
provincial offices.
accused guilty as charged of Illegal
RE: CRIMINAL CASE NO. 561:
Nonetheless, the facts as established in
We agree with respondent Judge that
the testimony of Ceferino E. Chan, Jr.
hardly deserves any credence.
Respondent Judge emphasized without
contradiction that he had never served
copies of his decisions in criminal cases
to the parties; he promulgated his
decisions in open court and thereafter
furnished copies thereof to counsels. If,
indeed, Chan served a copy of
respondent Judge's order modifying his
decision to the mother of Ruel
Dagondon, during which the mother
allegedly blurted out her having gone to
Cong. Romualdo to ask for his help to
reduce her son's penalty, proof of
service of the order to the accused's
mother should have been presented in
evidence. The bare testimony of Chan
lacks any corroboration.
therefore, difficult for this Court to
Neither was Chan's declaration that
Cong. Romualdo frequented respondent
Judge's chambers buttressed by any
independent proof. Respondent Judge
admitted though that at times, Cong.
circumstances of extreme poverty and
Romualdo would make official visits to
his court regarding matters like the
construction of the Hall of Justice, in the
same way that he would also visit other
and sentenced him to imprisonment for
their totality, more particularly
respondent Judge's taking cognizance
of Special Civil Case No. 465, despite
his lack of jurisdiction, his issuance of a
temporary restraining order in said case,
his imposition of the penalty in Criminal
Case No. 561 which was
unconscionably unwarranted given the
facts and the law applicable, and his
reduction of the penalty by the
application of two non-existent
mitigating circumstances with the
obvious result of enabling the accused
to avail of the Probation Law,
demonstrate an unmistakable pattern of
highly irregular acts constitutive of gross
ignorance of the law and grave
arbitrariness. Respondent Judge has a
long experience as a judge, having been
in the judiciary for over 20 years. It is,
minimum of two (2) years, four (4)
sustain the contention that what he had
done were mere errors of judgment. In
fact, no discretion was required in both
instances: the applicable legal
provisions are crystal clear and need no
interpretation.
In his July 18, 1991 judgment in Criminal
Case No. 561 (People vs. Dagondon, et
al.), respondent judge found the
Possession of Indian Hemp (marijuana)
an indeterminate period of from two (2)
years, four (4) months and one (1) day of
prision correccional in its medium period
to eight (8) years and one (1) day of
prision mayor in its medium period.
Additionally, the accused was ordered to
pay a fine of Six Thousand Pesos
(P6,000.00).
On the same day judgment was
promulgated, the accused filed a notice
of appeal which he later withdrew in
favor of a Motion for Reconsideration of
Judgment praying that the
circumstances of voluntary surrender,
extreme poverty and lack of proper
education be considered as mitigating in
his favor. On August 26, 1991,
respondent judge issued an order
amending the penalty imposed to a
months and one (1) day of prision
correccional in its medium period to six
(6) years of prision correccional in its
maximum period. In modifying the
judgment, the alleged mitigating
voluntary surrender were taken into
consideration by the respondent judge.
The reduction of the penalty enabled the
160
accused, Ruel Dagondon to apply for
probation which was granted by
respondent Judge in an Order dated
November 13, 1991.
1 day to 12 years, provided for the
It should be noted that the accused was
charged with violation of B.P. Blg. 179
(Dangerous Drugs Act), a special law.
Under the Indeterminate Sentence Law,
when an offense is punishable by a law
other than the Revised Penal Code, the
court should sentence the accused to
an indeterminate sentence, the
maximum term of which shall not
exceed the maximum fixed by law and
the minimum shall not be less than the
minimum term prescribed by the same.
The accused Dagondon should have
been sentenced to imprisonment
anywhere from six (6) years and one (1)
day to twelve (12) years as mandated by
B.P. 179. In applying the Indeterminate
Sentence Law after finding no mitigating
or aggravating circumstances, the
minimum penalty originally imposed by
respondent Judge should not have been
two (2) years, four (4) months and one
(1) day but six (6) years and one (1) day.
The incorrect minimum penalty was
the only mistake committed by
obviously mistakenly arrived at by
applying the rule applicable only for
crimes punishable under the Revised
Penal code, not a special law like B.P.
179. The basic error of respondent
Judge stemmed from his unwarranted
assumption that the penalty of
imprisonment ranging from 6 years and
Extreme poverty is not among the
offense involved by Sec. 8 of the
governing law, is the same as prision
mayor despite the fact that the technical
terminology of penalties for felonies in
the Revised Penal Code were not used
in the Dangerous Drugs Act at that time.
He should likewise have readily noted
that neither were the terms prision
correccional or reclusion temporal used
therein and, for that matter, life
imprisonment and not reclusion
perpetua was used in and imposed
under that law then in force. The
inexorable conclusion, therefore, is that
drug offenses were then considered, not
as felonies, but as crimes punished
under a special law, hence the
provisions of Arts. 13, 64, 71 and 76 of
the Revised Penal Code could not be
given suppletory effect. Consequently,
the indeterminate sentence should have
been within the range for offenses
punished by special laws as provided in
Sec. 1 of the Indeterminate Sentence
Law.
To compound his error, respondent
Judge considered in favor of the
accused the mitigating circumstances of
extreme poverty and voluntary
surrender. Justice Montoya noted:
mitigating circumstances enumerated in
Article 13 of the Revised Penal Code
and it is doubtful whether it may be
considered as a circumstance of a
similar nature or analogous to those
mentioned in said Article. On the other
hand, there appears to be no voluntary
surrender on the part of the accused
because the decision itself states that
the accused was arrested by the
authorities in a buy-bust operation and
was brought to the police station in
Mambajao, and later to the PC-INP
Headquarters at Camp Gen. Bonifacio
Aranas. In stating that there was
voluntary surrender, the respondent
postulated in his Order modifying the
judgment that the accused, after
committing the crime and having all the
chances to escape, voluntarily gave
himself up to the authorities.
It might, perhaps, have been easy for
this Court to act with extreme leniency if
respondent Judge was the application
of Article 64 of the Revised Penal Code
to an offense punishable by a special
law. However, the pattern of the "errors"
committed one after another, which
161
eventually enabled the respondent
Judge to apply the provisions of the
THOUSAND PESOS (P10,000.00) with a
Probation Law in letting off the accused
with a virtual slap in the wrist was so
gross as to be unconscionable.
solemn end — to promote justice by
Considering his experience in the bench
and the ready availability of legal
sources and materials from which he
could check and verify his findings and
conclusions, respondent Judge was
clearly negligent in misapplying the law.
He knew or ought to know that our laws
impose severe penalties on violations of
our dangerous drugs laws;
consequently, he should have been
alerted to the possibility of error when
the penalty imposed was finally reduced
to a ridiculously lenient one. The
inexplicably low penalty which
respondent Judge meted out on the
accused in Criminal Case No. 561, was
certainly out of proportion to the crime
for which the latter had been convicted
of.
Rule 3.02 — In every case, a judge shall
The policy of the law in imposing strict
penalties for violations of the Dangerous
Drugs Act cannot be gainsaid. The
intendment of the law is to eradicate a
menace to our society by a pernicious
evil which day in and day out victimizes
our youth. To lightly dismiss the
respondent judge's mistakes in Criminal
Case No. 561 would be to send the impose on him a fine of TEN
wrong signals.
STERN WARNING that a repetition of
The office of a judge exists for one the same or similar act or acts in the
future will be dealt with more severely.
administering it fairly and impartially. The
judge is the visible representation of the SO ORDERED.
law and justice. A judge who, through
gross ignorance of the law or serious
misconduct frustrates the ends of justice
commits a rank disservice to the cause
of justice which calls for the application
of appropriate disciplinary measures
(Villa vs. Amonoy, 194 SCRA 48 [1991]).
Finally, respondent Judge failed to meet
the standard mandated by Rules 3.01
and 3.02 of Canon 3 of the Code of
Judicial Conduct, to wit:
Rule 3.01 — A judge shall be faithful to
the law and maintain professional
competence.
endeavor diligently to ascertain the fact
and the applicable law unswayed by
partisan interests, public opinion or fear
of criticism.
ACCORDINGLY, the Court resolved to
hold respondent Judge administratively
liable for gross ignorance of the law and
with grave abuse of discretion, and to
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