PEOPLE VS DE LEON

This is an appeal from the April 4, 2008 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No.
01811 entitled People of the Philippines v. Rodante De Leon y Dela Rosa which affirmed the December
20, 2005 Decision2 in Criminal Case Nos. Q-03-122555-56 of the Regional Trial Court (RTC), Branch 82 in
Quezon City. The RTC found accused-appellant Rodante De Leon guilty of violation of Sections 5 and 11,
Article II of Republic Act No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.

The Facts

The charges against appellant stemmed from the following Informations:

Criminal Case No. Q-03-122555

(Violation of Section 5 [Sale], Article II of RA 9165)

That on or about the 9th day of November, 2003, in the Quezon City, Philippines, the said accused, not
being authorized by law, to sell, dispense, deliver, transport or distribute of any dangerous drug, did,
then and there, wilfully and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the
said transaction zero point sixteen (0.16) gram of methamphetamine hydrochloride a dangerous drug.

Contrary to law.3

Criminal Case No. Q-03-122556

(Violation of Section 11 [Possession], Article II of RA 9165)

That on or about the 9th day of November, 2003, in the Quezon City, Philippines, the said accused, not
being authorized by law, to possess or use any dangerous drug, did, then and there, wilfully, unlawfully
and knowingly have in his/her possession and control zero point eighteen (0.18) gram of
methamphetamine hydrochloride, a dangerous drug.

Contrary to law.4

On February 16, 2004, appellant was arraigned and pleaded "not guilty" to the charge against him. After
the pre-trial conference, trial on the merits ensued.

During the trial, the parties agreed to stipulate on the testimonies of Engr. Leonard Jabonillo, the
Forensic Chemist, and Police Officer 1 (PO1) Oliver Estrelles, the police investigator of these cases. The
prosecution thereafter presented PO2 Noel Magcalayo as its witness. The defense, on the other hand,
presented Rodante De Leon, the accused himself.

The trial court summarized the stipulation of Engr. Jabonillo, as follows:

x x x that he is a Forensic Chemist of the Philippine National Police, that his Office received the request
for laboratory examination marked as Annex "A"; that together with the said request was a plastic
sachet marked as Exh. "B" which contained two (2) plastic sachets marked as Exhibits "B-1" and "B-2";
that he conducted the requested laboratory examination and, in connection therewith he submitted a
Chemistry Report marked as Exhibit "C", the finding thereon showing the specimen positive for
Methylamphetamine Hydrochloride was marked as Exhibit "C-1" and the signature of said police officer
was marked as Exhibit "C-2"; that he then issued a Certification marked as Exhibits "D" and "D-1" and
thereafter turned over the specimen to the evidence custodian x x x. (Order dated September 14,
2004).5

Also, as regards PO1 Estrelles, the following was agreed upon:

x x x that he was the investigator of these cases and in connection with the investigation conducted by
him, he received the evidence, namely: the Joint Affidavit of Apprehension executed by PO2 Noel
Magcalayo and PO2 Cesar Collado marked as Exhibit "E" and "E-1"; that likewise prepared the request
for examination marked as Exhibit "A" and submitted the specimen to the Crime Laboratory and receive
the Chemistry Report marked as Exhibit "C"; that he received the Pre-Operation Report marked as
Exhibit "E" as well as the buy bust money marked as Exhibits "F" and "F-1", that he prepared the letter
request to the City Prosecutor Office marked as Exhibit "G"; and that Exhibit "A" contains
superimposition of the date thereof." (Order dated September 14, 2004).6

The Prosecution’s Version of Facts

On November 9, 2003, at about 5 o’clock in the afternoon, a confidential informant arrived at the office
of the Station Anti-Illegal Drug Special Operation Task Force at the Novaliches Police Station in Quezon
City and reported the illegal activities of a person named "Rodante De Leon."

Thereafter, Police Senior Inspector (P/SInsp.) Nilo Wong formed a team for a buy-bust operation with
PO2 Magcalayo as poseur-buyer and Senior Police Officer 3 (SPO3) Mario Concepcion, PO2 Fernando
Salonga, PO2 Cesar Collado, PO2 Edmund Paculdar, and PO1 Emeterio Mendoza as team members. A
pre-operation report was prepared. P/SInsp. Wong then handed to PO2 Magcalayo two (2) pieces of PhP
100 bills as buy-bust money and on which PO2 Magcalayo wrote his initials "NM."

At around 6:30 p.m. in the evening, the team proceeded to Sarmiento St., Barangay Sta. Monica,
Novaliches, Quezon City, where the confidential informant introduced PO2 Magcalayo to appellant as a
buyer of shabu. PO2 Magcalayo then asked appellant if he had shabu and the latter answered in the
affirmative and asked him how much he would buy. PO2 Magcalayo handed the money and, in return,
appellant handed him one (1) plastic sachet containing white crystalline substance. He then scratched
his head, which was the pre-arranged signal that the transaction was consummated, and thereafter
arrested appellant. He recovered the buy-bust money from appellant as PO2 Collado approached them
and handcuffed appellant. Upon frisking appellant, PO2 Collado discovered another plastic sachet on the
person of appellant.

Afterwards, appellant was brought to the police station for investigation. PO2 Collado then placed his
initials on the sachet he found on appellant. The evidence was subsequently turned over to the police
investigator, PO1 Estrelles, who prepared a request for its laboratory examination.
PO2 Collado, PO1 Mendoza, PO2 Paculdar, and PO2 Magcalayo then brought the transparent plastic
sachets containing the white crystalline substance subject of the buy-bust operation to the Philippine
National Police (PNP) Crime Laboratory, Eastern Police District on St. Francis Street, Mandaluyong City
for examination. Engr. Jabonillo, a Forensic Chemical Officer, conducted a qualitative examination on
the specimens, which yielded positive results for Methylamphetamine Hydrochloride, a dangerous drug.
He issued Chemistry Report No. D-1240-2003 dated November 9, 2003, which showed the following
results:

SPECIMEN SUBMITTED:

Two (2) heat-sealed transparent plastic sachets each containing white crystalline substance having the
following markings and recorded net weights:

A (NM) = 0.16 gm

B (CC) = 0.18 gm

xxxx

PURPOSE OF LABORATORY EXAMINATION:

To determine the presence of dangerous drugs.

xxxx

FINDINGS:

Qualitative examination conducted on the above-stated specimens gave POSITIVE result to the test for
Methylamphetamine Hydrochloride, a dangerous drug. x x x

CONCLUSION:

Specimen A and B contain Methylamphetamine Hydrochloride, a dangerous drug. x x x

Vesion of the Defense

On the other hand, appellant testified that, prior to his arrest, he was a police officer of Station 7,
Araneta, Cubao, Quezon City and had been connected with the PNP for 10 years. On November 9, 2003,
at around 3 o’clock in the afternoon, he went to Sarmiento St., Barangay Sta. Monica, Novaliches,
Quezon City to look for a kumpadre from whom he intended to borrow money when policemen
accosted him and poked their guns at him. The people around him ran, and as he was the only one left
on the scene, the policemen asked him to sit down. He told SPO3 Concepcion, whom he knew, that he
was a police officer but he was told to shut up and to explain his side at the police station instead.

Upon arrival at the police station in Novaliches, Quezon City, his wallet, with his I.D. and police badge,
were taken from him. PO2 Magcalayo told him that he had a fake police I.D. When appellant tried to
explain himself, PO2 Magcalayo allegedly kicked him saying, "Hindi na uso ang pulis, sundalo na ang
nakaupo ngayon."

The following night, he was presented on inquest during which he was charged with violation of Secs. 5
and 11 of RA 9165. He denied all the charges against him claiming that the alleged shabu marked as
Exhibits "B-1" and "B-2" came from the arresting police officers. He did not file a case against them,
because he had no money and because he knew that he was not guilty.

On cross-examination, appellant further testified that he was a follow-up operative at the Station
Investigation Division of Police Station 7. He admitted that he was separated from the service because
he was absent without official leave due to a business problem he had to attend to. He likewise said that
he did not know his arresting officers, whom he saw then for the first time, and that he was not familiar
with RA 9165.

Ruling of the Trial Court

After trial, the RTC convicted appellant. The dispositive portion of its Decision reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

Re: Criminal Case NO. Q-03-122555, the Court finds accused RODANTE DE LEON y DELA ROSA guilty
beyond reasonable doubt of a violation of Section 5, Article II of R.A. No. 9165 otherwise known as the
Comprehensive Dangerous Drugs Act of 2002, and hereby sentences him to suffer the penalty of life
imprisonment and to pay a fine in the amount of P500,000.00;

Re: Criminal Case NO. Q-03-122556, the Court finds accused RODANTE DE LEON y DELA ROSA guilty
beyond reasonable doubt of a violation of Section 11, Article II of R.A. No. 9165 otherwise known as the
Comprehensive Dangerous Drugs Act of 2002, and hereby sentences him to suffer the indeterminate
penalty of twelve (12) years and one (1) day as minimum to fifteen (15) years and one (1) day as
maximum and to pay a fine in the amount of P300,000.00;

SO ORDERED.7

On appeal to the CA, appellant disputed the trial court’s decision finding him guilty beyond reasonable
doubt of the crimes charged. He argued that the alleged buy-bust operation conducted by the police
officers was tainted with irregularities and that the prosecution failed to prove the chain of custody of
the evidence.

Ruling of the Appellate Court

On April 4, 2008, the CA affirmed the judgment of the trial court. The dispositive portion of its Decision
reads:

WHEREFORE, premises considered, the appeal is DENIED for lack of merit. The Decision dated 20
December 2005 of the Regional Trial Court of Quezon City, Branch 82 finding accused-appellant Rodante
De Leon y Dela Rosa guilty beyond reasonable doubt in Criminal Case No. Q-03-122555 for violation of
Section 5, Article II of Republic Act No. 9165 and sentencing him to suffer the penalty of life
imprisonment and to pay a fine in the amount of P500,000.00, and in Criminal Case No. Q-03-122556 for
violation of Section 11, Article II of R.A. No. 9165 otherwise known as the Comprehensive Dangerous
Drugs Act of 2002, sentencing him to suffer the indeterminate penalty of twelve (12) years and one (1)
day as minimum to fifteen (15) years and one (1) day as maximum and to pay a fine in the amount of
P300,000.00, is AFFIRMED.

SO ORDERED.8

Appellant filed a timely notice of appeal of the decision of the CA.

The Issues

Appellant assigns the following errors:

I.

The trial court gravely erred in ignoring the fact that the prosecution failed to prove the chain of custody
of the alleged confiscated items from the accused-appellant.

II.

The trial court gravely erred in finding the accused-appellant guilty of the crimes charged despite the
failure of the prosecution to prove his guilt beyond reasonable doubt.

Our Ruling

We sustain appellant’s conviction.

Guilt of Appellant Was Proved Beyond Reasonable Doubt

Appellant assails his conviction by contending that the trial court failed to prove his guilt beyond
reasonable doubt. According to him, the trial court erroneously convicted him on the basis of the
evidence of the prosecution despite a question of the legality of the buy-bust operation. Further, he
asserts that the trial court relied on the disputable presumption of regularity in the performance of the
police function, despite the police officers violated the rule on chain of custody of the alleged
confiscated items.

The contentions are unmeritorious.

It is a fundamental rule that findings of the trial court which are factual in nature and which involve the
credibility of witnesses are accorded with respect, when no glaring errors, gross misapprehension of
facts, and speculative, arbitrary, and unsupported conclusions can be gathered from such findings.9 The
reason for this is that the trial court is in a better position to decide the credibility of witnesses having
heard their testimonies and observed their deportment and manner of testifying during the trial.10
After a thorough examination of the entire records of this case, this Court has failed to identify any error
committed by the trial court in its appreciation of the evidence presented before it and in the conclusion
it reached.

In the prosecution for the crime of illegal sale of prohibited drugs, the Court has reiterated the essential
elements in People v. Pendatun, to wit: (1) the accused sold and delivered a prohibited drug to another;
and (2) he knew that what he had sold and delivered was a prohibited drug.11 Therefore, what is
material is the proof that the transaction or sale actually took place, coupled with the presentation in
court of evidence of the corpus delicti.12 Corpus delicti is the body or substance of the crime, and
establishes the fact that a crime has actually been committed. It has two elements, namely: (1) proof of
the occurrence of a certain event; and (2) some person’s criminal responsibility for the act.13

In the instant case, the prosecution sufficiently established the elements of the crime. Appellant sold
and delivered the shabu for PhP 200 to PO2 Magcalayo posing as buyer; the said drug was seized and
identified as a prohibited drug and subsequently presented in evidence; there was actual exchange of
the marked money and contraband; and finally, appellant was fully aware that he was selling and
delivering a prohibited drug. In fact, PO2 Magcalayo testified, thus:

Q: Mr. Witness, on November 9, 2003, did you report for duty?

A: Yes, sir.

Q: What happened when you reported for duty?

A: Our confidential informant personally appeared in our station and reporting to us the alleged drug
pushing activity of Rodante De Leon.

Q: What time was that when this confidential informant arrived at your office?

A: Around 5:00 p.m., sir.

Q: What happened when this confidential informant relayed to you the information about this Rodante
De Leon?

A: Our Chief sir, formed a team for possible buy bust operation.

COURT:

Who formed?

A: P/Sr. Inspector Nilo Wong, your honor.

PROS. ANTERO:

Who composed this team?

A: Us, sir. SPO3 Mario Concepcion, PO2 Fernando Salonga, PO2 Cesar Collado, PO2 Edmund Paculdar
and PO1 Emeterio Mendoza, your Honor.

Q: What happened when this team was formed, Mr. Witness?

A: We proceeded to Sarmiento Street, sir, for buy bust operation.

COURT:

Were you among the team?

A: Yes, your Honor.

PROS. ANTERO:

Prior to the dispatch to conduct that buy-bust operation, what happened, if any?

A: We prepared the pre-operation report and our Chief handed to me the two (2) pieces of P100.00 bills
as buy bust money.

Q: What did you do with that two (2) P100.00 bills?

A: Before we were dispatched, I put my initial on the buy-bust money.

Q: What initial?

A: NM, sir.

Q: What [does] NM stand for?

A: Noel Magcalayo, sir.

Q: I am showing you these two (2) P100.00 bills, kindly examine the same whether you know those
P100.00 bills?

A: These are the buy bust money that we used in the operation, sir.

xxxx

Q: What happened after you were given these buy bust money?

A: We proceeded to Sarmiento Street, Barangay Sta. Monica, Novaliches, Quezon City.

Q: What time was that when you proceeded there?

A: At around 6:30 in the afternoon, sir.

Q: What happened, Mr. Witness?

A: We were able to meet Rodante De Leon.

Q: How did you meet this Rodante De Leon?

A: By the help of our confidential informant, sir.

Q: Can you tell this Hon. Court how you made a contact with this Rodante De Leon?

A: We approached him and then our confidential informant introduced me to him as a buyer of shabu.

COURT:

What?

A: I was introduced to him by the confidential informant as a buyer of shabu.

PROS. ANTERO:

What happened thereafter?

A: He made transaction with us, sir.

Q: What happened during the transaction?

A: I asked him sir if he has shabu and then he answered yes and magkano.

Q: What did he tell you, if any?

A: He asked me how much I would buy shabu.

Q: What did you tell, if any?

A: That was the time when I handed to him the money, sir.

Q: What happened when you handed the money to him?

A: In return, sir, he handed to me one (1) plastic sachet containing suspected shabu.

Q: One?

A: Yes, sir.

Q: What happened after he handed to you one plastic sachet?

A: I gave pre-arranged signal to my back-up and immediately effected the arrest, sir.

Q: What was the pre-arranged signal?

A: By scratching my head, sir.

Q: Scratching your head?

A: Yes, sir.

Q: What happened when you made that pre-arranged signal?

A: I effected the arrest, sir, and confiscated the buy bust money from Rodante De Leon.14

Evidently, all the elements of the crime of illegal sale of prohibited drugs were proved in the instant
case. The testimony cited above shows clearly that a sale occurred between appellant, as the seller, and
PO2 Magcalayo, as the buyer, for PhP 200 worth of shabu. In addition, the said testimony illustrated the
seizing of the prohibited drug and the exchange of the marked money. As a matter of fact, the trial
court, in disposing of the case, said:

x x x Set against this legal yardstick, the evidence adduced by the prosecution have sufficiently
established the elements aforesaid. The prosecution witnesses in the person of PO2 Noel Magcalayo,
the one who acted as the poseur buyer in the buy bust operation conducted by his team, described in
detail how the operation was commenced with the help of an informant, his introduction to the
accused, the ensuing negotiation and consummation of the sale of shabu which ended up in the
exchange of the item as well as the buy bust money. Accused was positively identified as the seller
thereof and the source of the plastic sachet which contained crystalline substance later on determined
after laboratory examination as positive for methylamphetamine, a dangerous drug. Said evidence was
presented in court and properly identified as the subject of the buy bust and which was submitted for
examination by the Forensic Chemist. All told, all the elements aforementioned are hereby present.15 x
xx

Further, the chain of custody was clearly established by the prosecution. It is elementary that, in every
prosecution for the illegal sale of prohibited drugs, the presentation of the drug as evidence in court is
material.16 It is, therefore, essential that the identity of the prohibited drug be established beyond
doubt. What is more, the fact that the substance bought during the buy-bust operation is the same
substance offered in court should be established. The chain of custody requirement performs this
function in that it ensures that unnecessary doubts concerning the identity of the evidence are
removed.17

To ensure that the chain of custody is established, the Implementing Rules and Regulations of RA 9165
provide:

SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant
Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia
and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs,
plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for
proper disposition in the following manner:
(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately
after seizure and confiscation, physically inventory and photograph the same in the presence of the
accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the Department of Justice (DOJ), and
any elected public official who shall be required to sign the copies of the inventory and be given a copy
thereof; Provided, that the physical inventory and photograph shall be conducted at the place where the
search warrant is served; or at the nearest police station or at the nearest office of the apprehending
officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-
compliance with these requirements under justifiable grounds, as long as the integrity and evidentiary
value of the seized items are properly preserved by the apprehending officer/team, shall not render void
and invalid such seizures of and custody over said items x x x. (Emphasis supplied.)

A close examination of the law reveals that it admits of certain exceptions. Thus, contrary to the
assertions of appellant, Sec. 21 of the foregoing law need not be followed as an exact science. Non-
compliance with Sec. 21 does not render an accused’s arrest illegal or the items seized/confiscated from
him inadmissible.18 What is essential is "the preservation of the integrity and the evidentiary value of
the seized items, as the same would be utilized in the determination of the guilt or innocence of the
accused."19

In the instant case, there was substantial compliance with the law and the integrity of the drugs seized
from appellant was preserved. The chain of custody of the drugs subject matter of the case was shown
not to have been broken. The factual milieu of the case reveals that after PO2 Magcalayo seized and
confiscated the dangerous drugs, as well as the marked money, appellant was immediately arrested and
brought to the police station for investigation, where the sachet of suspected shabu was marked with
"NM." Immediately thereafter, the confiscated substance, with a letter of request for examination, was
submitted to the PNP Crime Laboratory for examination to determine the presence of any dangerous
drug. Per Chemistry Report No. D-1240-2003 dated November 9, 2003, the specimen submitted
contained methylamphetamine hydrochloride, a dangerous drug. The examination was conducted by
one Engr. Jabonillo, a Forensic Chemical Officer of the PNP Crime Laboratory, whose stipulated
testimony clearly established the chain of custody of the specimens he received. Thus, it is without a
doubt that there was an unbroken chain of custody of the illicit drug purchased from appellant.

Likewise, the prosecution was able to prove that appellant is guilty of illegal possession of dangerous
drugs with moral certainty. In the prosecution for illegal possession of dangerous drugs, the following
elements must be proved with moral certainty: (1) that the accused is in possession of the object
identified as a prohibited or regulatory drug; (2) that such possession is not authorized by law; and (3)
that the accused freely and consciously possessed the said drug.20

Here, appellant was caught in actual possession of the prohibited drugs without showing any proof that
he was duly authorized by law to possess them. Having been caught in flagrante delicto, there is prima
facie evidence of animus possidendi on appellant’s part. As held by this Court, the finding of a dangerous
drug in the house or within the premises of the house of the accused is prima facie evidence of
knowledge or animus possidendi and is enough to convict in the absence of a satisfactory explanation.21
In the case at bar, appellant failed to present any evidence to rebut his animus possidendi of the shabu
found in his pocket during the buy-bust operation.

Buy-Bust Operation Was Valid

Appellant further argues that the buy-bust operation was full of irregularities, rendering it illegal. He
notes that the Pre-Operation Report was full of discrepancies and that the Joint Sworn Affidavit of
Apprehension of PO2 Magcalayo and PO2 Collado failed to mention that they placed their markings on
the plastic sachets.

The arguments are specious. Such irregularities cannot overturn the finding of the presence in this case
of the elements of violations of Secs. 5 and 11, Art. II of RA 9165.

A buy-bust operation is a form of entrapment whereby ways and means are resorted to for the purpose
of trapping and capturing the lawbreakers in the execution of their criminal plan.22 In this jurisdiction,
the operation is legal and has been proved to be an effective method of apprehending drug peddlers,
provided due regard to constitutional and legal safeguards is undertaken.23

In the case at bar, the evidence clearly shows that the buy-bust operation conducted by the police
officers, who made use of entrapment to capture appellant in the act of selling a dangerous drug, was
valid and legal. Moreover, the defense has failed to show any evidence of ill motive on the part of the
police officers. Even appellant himself declared that it was the first time he met the police officers
during his cross-examination. There was, therefore, no motive for the police officers to frame up
appellant.

Likewise, the identity of appellant as the person who sold the dangerous drugs to PO2 Magcalayo and
the one in possession of the shabu cannot be doubted anymore. Such positive identification prevails
over appellant’s defenses of denial and alibi. These defenses have been invariably viewed by the Court
with disfavor, for they can easily be concocted but difficult to prove, and they are common and standard
defense ploys in most prosecutions arising from violations of the Comprehensive Dangerous Drugs
Act.24

Absent any proof of motive to falsely accuse appellant of such a grave offense, the presumption of
regularity in the performance of official duty and the findings of the trial court with respect to the
credibility of witnesses shall prevail over appellant’s bare allegation.25

We, therefore, uphold the presumption of regularity in the performance of official duties and find that
the prosecution has discharged its burden of proving the guilt of appellant beyond reasonable doubt.

WHEREFORE, the appeal is DENIED. The CA’s Decision in CA-G.R. CR-H.C. No. 01811 finding appellant
Rodante De Leon y Dela Rosa guilty of the crimes charged is AFFIRMED.

SO ORDERE
 RAMOS-ANDAN VS PEOPLE

For our resolution is the instant petition for review on certiorari seeking to reverse the Decision[1] and
the Resolution of the Court of Appeals in CA-G.R. CR No. 18379, entitled People of the Philippines,
plaintiff-appellee, versus Anicia Ramos-Andan and Potenciana Nieto, accused, Anicia Ramos Andan,
accused-appellant.

On February 4, 1991, Anicia Ramos-Andan, herein petitioner, and Potenciana Nieto approached
Elizabeth E. Calderon and offered to buy the latters 18-carat heart-shaped diamond ring. Elizabeth
agreed to sell her ring. In turn, Potenciana tendered her three (3) postdated checks. To evidence the
transaction, the parties prepared and signed a receipt which reads as follows:

February 4, 1991

Received from Mrs. Elizabeth Eusebio Calderon the heart-shaped diamond ring which in return Mrs.
Potenciana Nieto and Mrs. Annie Andan had given the checks dated June 30, 1991 worth P23,000.00,
August 30, 1991 worth P25,000.00, and Sept. 30, 1991 worth P25.000.00 as full payment of the said
jewelry.

(Sgd.) DIGNA G. SEVILLA (Sgd.) ANICIA ANDAN

Witness Signature

_______________________

Witness[2]

Inasmuch as the three checks (PDB Check Nos. 14173188, 14173189, and 14173190) were all payable to
cash, Elizabeth required petitioner to endorse them. The latter complied.

When Elizabeth deposited the checks upon maturity with the drawee bank, they bounced for the reason
Account Closed. She then sent Potenciana a demand letter to pay, but she refused.

On July 10, 1997, Elizabeth filed with the Office of the Provincial Prosecutor of Bulacan a Complaint for
Estafa against petitioner and Potenciana. Finding a probable cause for Estafa against them, the
Provincial Prosecutor filed the corresponding Information for Estafa with the Regional Trial Court (RTC),
Branch 8, Malolos, Bulacan. Subsequently, petitioner was arrested but Potenciana has remained at
large. When arraigned, petitioner entered a plea of not guilty to the charge.

During the hearing, petitioner denied buying a diamond ring from Elizabeth, maintaining that she signed
the receipt and the checks merely as a witness to the transaction between Elizabeth and Potenciana.
Thus, she could not be held liable for the bounced checks she did not issue.

After hearing, the trial court rendered its Decision finding petitioner guilty as charged and imposing
upon her an indeterminate prison term 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, and to
indemnify Elizabeth E. Calderon in the amount of P73,000.00 representing the purchase price of the
diamond ring.

The trial court held that while it was Potenciana who issued the checks, nonetheless, it was petitioner
who induced Elizabeth to accept them and who endorsed the same. Accordingly, petitioner cannot
escape liability.

On appeal, the Court of Appeals rendered its Decision dated July 16, 1998 affirming with modification
the RTC Decision. The maximum penalty imposed was increased to seventeen (17) years, four (4)
months and one (1) day of reclusion temporal and the indemnity was reduced to P23,000.00 considering
the RTCs finding that:

Complainant, however, was able to present in Court only Planters Development Bank (Check) No.
14173188, dated June 30, 1991, in the amount of P23,000.00 and the fact of its being dishonored. The
other two checks were neither presented nor the fact of being dishonored proven. Likewise, the two
checks were not mentioned in the demand letter marked as Exhibit C. Although, therefore, it is clear
from the records, in fact admitted by the accused, that the total amount of P23,000.00 as purchase price
of the diamond ring has not been paid, the accused should only be held liable for the dishonor of the
check above-stated as the dishonor of the two other checks was not proven in Court.

Petitioner filed a motion for reconsideration, but this was denied by the Appellate Court.

Hence, the instant petition raising the following basic issues:

(1) Whether the prosecution has proved petitioners guilt beyond reasonable doubt; and (2) whether she
is entitled to the mitigating circumstance of lack of intention to commit so grave a wrong.

On the first issue, petitioner contends that not being the drawer of the checks, she cannot be held
criminally liable.

The Solicitor General counters that this issue is not novel, having long been resolved by this Court in
Zagado v. Court of Appeals,[3] thus:

The contention of the petitioner that he did not commit estafa because he did not issue or indorse the
postdated checks is devoid of merit. While it is true that he did not issue or indorse the postdated
checks, his and Montuertos concerted acts with common design and purpose in encashing the
questioned checks indicate the presence of conspiracy as charged in the information filed against them.

But as correctly ruled by the Court of Appeals, even without discussing the existence of conspiracy,
appellant cannot escape liability by the fact alone that he did not ascertain whether or not Montuerto
had sufficient funds to cover the check (Decision, CA-G.R. No. 02173, p. 4, citing People vs. Isleta, 61
Phil. 332 [1935]).
It must be noted that when the petitioner was in need of money, he asked the financial assistance of his
friend Montuerto, and the latter issued the two postdated checks. Since the petitioner could not encash
the postdated checks at the banks, he and Montuerto went to another friend, Apolinario Mercado.
Mercado brought and introduced the petitioner and Montuerto to complainant Josephine Serrano at
the latters office. Petitioner and Montuerto requested the complainant and her husband to exchange
with cash the two postdated checks which they had in their possession. At first, the Serranos hesitated
but with the assurance of Mercado and the petitioner to the complainant that the checks will be funded
when encashed, the latter exchanged the two postdated checks with cash which she handed to the
petitioner.

This issue has already been laid to rest by this Court in People v. Isleta and Nuevo (61 Phil. 334 [1935])
where appellant without having issued or indorsed the checks in question was held liable because of his
guilty knowledge that his co-accused had no funds in the bank when he negotiated the checks.

In the present case, while Potenciana, who remains at large, was the drawer of the checks, however, it
was petitioner who directly and personally negotiated the same. It was she who signed the receipt
evidencing the sale. It was she who handed the checks to Elizabeth and endorsed them as payment for
the ring. It is thus clear that petitioner and Potenciana acted in concert for the purpose of inducing and
defrauding Elizabeth to part with her jewelry.

The elements of the offense as defined and penalized by Article 315, paragraph 2(d) of the Revised
Penal Code, as amended, are:

(1) postdating or issuance of a check in payment of an obligation contracted at the time the check
was issued;

(2) lack of or insufficiency of funds to cover the check; and

(3) the payee was not informed by the offender and the payee did not know that the offender had no
funds or insufficient funds.

All these elements are present in this case. The prosecution proved that the checks were issued in
payment of a simultaneous obligation, i.e., the checks were issued in payment for the ring. The checks
bounced when Elizabeth deposited them for the reason Account Closed. There is no showing
whatsoever that before petitioner handed and endorsed the checks to Elizabeth, she took steps to
ascertain that Potenciana has sufficient funds in her account. Upon being informed that the checks
bounced, she failed to give an adequate explanation why Potencianas account was closed. In Echaus v.
Court of Appeals,[4] we ruled that the fact that the postdated checkswere not covered by sufficient
funds, when they fell due, in the absence of any explanation or justification by petitioner, satisfied the
element of deceit in the crime of estafa, as defined in paragraph 2 of Article 315 of the Revised Penal
Code.[5]

On the second issue, petitioner claims that she is entitled to the mitigating circumstance of lack of
intention to commit so grave a wrong.
Petitioner employed fraud, the reason why Elizabeth parted with her ring worth P73,000.00. Obviously,
such mitigating circumstance has no place here.

WHEREFORE, the petition is DENIED. We AFFIRM the assailed Decision and the Resolution of the Court
of Appeals in CA-G.R. CR No. 18379. Costs against petitioner.

SO ORDERED.

NIZURTADO VS SANDIGANBAYAN

An information, accusing Felix Nizurtado of having committed the complex crime of malversation of
public funds through falsification of public document, reads:

That on or about August 25, 1983, and for sometime prior or subsequent thereto, in the City of
Caloocan, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, a
public officer, being then the Barangay Captain of Panghulo, Malabon, Metro Manila, did then and
there, willfully, unlawfully and feloniously falsify and attest Resolution No. 17 Series of 1983 by making it
appear that on August 25, 1983 the Barangay council of Panghulo met and identified T-shirt
manufacturing as its livelihood project, when in truth and in fact, as the accused fully well knew, no such
meeting was held, where T-shirt manufacturing was identified and approved by the Barangay Council as
its livelihood project, and thereafter, accused submitted the falsified resolution to the MHS-MMC-KKK
Secretariat which endorsed the same to the Land Bank of the Philippines, which on the basis of said
endorsement and the falsified resolution, encashed LBP check No. 184792 in the amount of TEN
THOUSAND PESOS (P10,000.00), which check was earlier received by him as Barangay Captain of
Panghulo in trust for the Barangay for its livelihood project and for which fund accused became
accountable, and upon receipt thereof herein accused, with deliberate intent and grave abuse of
confidence did then and there willfully, unlawfully and feloniously misappropriate, misapply and convert
to his own personal use and benefit the amount of TEN THOUSAND PESOS (P10,000.00) out of the funds
for which he was accountable, to the damage and prejudice of the government in the said amount.

CONTRARY TO LAW. 1

When arraigned by the Sandiganbayan, Nizurtado pleaded "not guilty" to the charge. During the pre-
trial, held on 17 July 1989, the prosecution and the defense stipulated thusly:

1. That sometime in 1983 and 1984, accused Felix Nizurtado was the Barangay Captain of Barangay
Panghulo of Malabon, Metro Manila and 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) undertook a Livelihood Program for Barangays in Metro Manila
consisting of loans in the amount of P10, 000.00 per barangay.

3. That as Barangay Captain of Barangay Panghulo, accused received a check in the amount of
P10,000.00 for said barangay's livelihood program;
4. That the check, to be encashed, had to be supported by a project proposal to be approved by
the KKK;

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

6. That the accused distributed the amount of P10,000.00 in the form of loans of P1,000.00 each to
members of the barangay council. 2

After evaluating the evidence adduced, the Sandiganbayan came out with its factual findings and
conclusions, hereunder detailed:

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, Malabon, Metro
Manila from 1983 to 1988.

In April or May 1983, Nizurtado and Manuel P. Romero, Barangay Treasurer of Panghulo, attended a
seminar at the University of Life, Pasig, Metro Manila. The seminar was about the Barangay Livelihood
Program of the Ministry of Human Settlements (MHS), the Metro Manila Commission (MMC), and the
Kilusang Kabuhayan at Kaunlaran (KKK). Under the program, the barangays in Metro Manila could avail
of loans of P10,000.00 per barangay to finance viable livelihood projects which the Barangay Councils
would identify from the modules developed by the KKK Secretariat or which, in the absence of such
modules, the Councils would choose subject to the evaluation/validation of the Secretariat.

After the seminar, Nizurtado received a check for P10,000.00 intended for Barangay Panghulo and
issued in his name. The check, however, could be encashed only upon submission to the 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.

In one of its regular sessions, which was on the second Saturday of each month, the Barangay Council of
Panghulo discussed the project in which to invest the P10,000.00. Among the proposals was that of
Romero that a barangay service center be established. But the meeting ended without the Councilmen
agreeing on any livelihood project.

A few days after the meeting, Nizurtado got back the check from Romero, saying that he would return it
because, as admitted by Nizurtado during the trial, the Councilmen could not agree on any livelihood
project. Nizurtado signed a receipt dated August 4, 1983, for the check "to be returned to the Metro
Manila Commission."

After a few more days, Nizurtado asked Romero to sign an unaccomplished resolution in mimeograph
form. All the blank spaces in the form were unfilled-up, except those at the bottom which were
intended for the names of the Barangay Councilmen, Secretary, and Captain, which were already filled-
up and signed by Councilmen Marcelo Sandel, Jose Bautista, Alfredo Aguilar, Alfredo Dalmacio, F.A.
Manalang (the alleged Barangay Secretary), and Nizurtado. In asking Romero to sign, Nizurtado said that
the MMC was hurrying up the matter and that the livelihood project to be stated in the resolution was
that proposed by Romero — barangay service center. Trusting Nizurtado, Romero affixed his signature
above his typewritten name. When he did so, the blank resolution did not yet bear the signatures of
Councilmen Santos Gomez and Ceferino Roldan.

The blank resolution having already been signed by Romero, Nizurtado asked him to talk with Gomez
and secure the latter's signature. Romero obliged and upon his pleading that his proposed barangay
service center would be the one written in the blank resolution, Gomez signed. But before he returned
the resolution, he had it machine copied. The machine copy is now marked Exhibit J.

Unknown to Romero and Gomez, the blank but signed resolution was later on accomplished by writing
in the blank space below the paragraph reading:

WHEREAS, the Barangay Council now in this session had already identified one livelihood project with
the following title and description:

the following:

Title : T-shirt Manufacturing

Description : Manufacture of round neck T-shirts of

various sizes and colors.

The other blank spaces in the resolution were also filled-up. Thus "Panghulo," "Brgy. Hall," and "August
25, 1983" were typewritten in the spaces for the name of the Barangay, the place where and the date
when the council meeting took place, respectively. In the blank spaces for the names of the members of
the Council who attended the meeting were typewritten the names of

Felix Nizurtado Barangay Captain

Marcelo Sandel Barangay Councilman

Alfredo Aguilar Barangay Councilman

Santos Gomez Barangay Councilman

Jose Bautista Barangay Councilman

Alfredo Dalmacio Barangay Councilman

Ceferino RoldanBarangay Councilman

The word "none" was inserted in the space intended for the names of the Councilmen who did not
attend. The resolution was given the number "17" series of "1983." Finally, the last line before the
names and signatures of the Councilmen was completed by typewriting the date so that it now reads:

UNANIMOUSLY APPROVED this 25th day of August, 1983.

The resolution as fully accomplished is now marked Exhibit D.

Other supporting documents for the encashment of the check of P10,000.00 were also prepared, signed,
and filed by Nizurtado. They were: Project Identification (Exhibit B), Project Application in which the
borrower was stated to be Samahang Kabuhayan ng Panghulo (Exhibit C and C-1), Project Location Map
(Exhibit E), and Promissory Note

(Exhibit F).

The application for loan having been approved, the Promissory Note (Exhibit F) was re-dated from
August to October 18, 1983, placed in the name of the Samahang Kabuhayan ng Panghulo represented
by Nizurtado, and made payable in two equal yearly amortizations of P5,000.00 each from its date. The
purpose of the loan was stated to be

T-Shirt Manufacturing of round neck shirts of various sizes and colors.

Nizurtado encashed the check on the same day, October 18, 1983, and re-lent the cash proceeds to
himself, Sandel, Aguilar, Bautista, Dalmacio, and Roldan at P1,000.00, and to Manalang and Oro Soledad,
Barangay Court Secretary and Barangay Secretary, respectively, at P500.00 each.

On April 25, 1984, Nizurtado who was then on leave wrote Sandel, then acting Barangay Captain,
informing him that per record, he, Romero, and Gomez had not made any remittance for the account of
their P1,000.00 loans from the barangay livelihood fund of P10,000.00 and advising him to collect,
through the Secretary or Treasurer.

Since Romero and Gomez had not borrowed any amount from the said fund, they told Sandel to ask
Nizurtado if he had any proof of their alleged loans. So Sandel wrote Nizurtado on May 2, 1984, but the
latter did not answer.

This attempt to collect from Romero and Gomez prompted them to make inquiries. They learned that
the check for P10,000.00 was indeed encashed by Nizurtado and that the blank resolution which they
had signed was filled-up to make it appear that in a Council meeting where all councilmen were present
on August 25, 1983, T-shirt manufacturing was adopted as the livelihood project of Panghulo. But no
such meeting occurred on that day or on any other day. Neither was Nizurtado authorized by the
Council to submit T-shirt Manufacturing as the livelihood project of Panghulo.

On August 9, 1984, Romero and Gomez lodged their complaint against Nizurtado with the Office of the
Tanodbayan. After due preliminary investigation, this case was filed.

As of September 7, 1984, the members of the Council who had received P1,000.00 each, as well as
Bacani (also referred to as Manalang) and Soledad who had received P500.00 each had paid their
respective loans to Nizurtado who, in turn, remitted the payments to the MMC on these dates:

April 16, 1984 P1,450.00

August 14, 1984 3,550.00

September 7, 1984 3,000.00

————

Total P8,000.00

In June 1987, after demands for payment, Dalmacio remitted the balance of P2,000.00 from his pocket
because, as acting Barangay Captain, he did not want to leave the Barangay with an indebtedness. 3

On the basis of its above findings, the Sandiganbayan convicted the accused of the offense charged. The
dispositive portions of its decision, promulgated on 18 September 1992, read:

WHEREFORE, the Court finds Felix Nizurtado y Victa guilty beyond reasonable doubt of the complex
crime of malversation of public funds committed through falsification of public 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 correccional as minimum to EIGHT (8) YEARS, EIGHT (8) MONTHS, and ONE
(1) DAY of prision mayor as maximum; perpetual special disqualification; and a fine of P10,000.00.

No pronouncement is made as to civil liability, there having been complete restitution of the amount
malversed.

With costs.

SO ORDERED. 4

His motion for reconsideration having been denied, Nizurtado has filed the instant petition for review on
certiorari. Petitioner faults the Sandiganbayan in that —

1. It has committed grave abuse of discretion in finding that Resolution No. 17, dated August 25,
1983, of the Barangay Council of Panghulo, Malabon, Metro Manila (Exh. "D") is a falsified document
and that the petitioner is the forger thereof; and

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 capacity as representative of the Samahang Kabuhayan ng Barangay
Panghulo, Malabon, Metro Manila. 5

The Solicitor General Agrees in all respects with the Sandiganbayan in its findings and judgment except
insofar as it has found petitioner to have likewise committed the crime of falsification of a public
document.

Article 217 of the Revised Penal Code provides:

Art. 217. Malversation of public funds or property. — Presumption of malversation. — Any public
officer who, by reason of the duties of his office, is accountable for public funds or property, shall
appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or
negligence, shall permit any other person to take such public funds or property, wholly or partially, or
shall otherwise be guilty the misappropriation or malversation of such funds or property, shall suffer:

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.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is
more than two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum
period, if the amount involved is more than six thousand pesos but is less than twelve thousand pesos.

4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved
is more than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds
the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the
property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is
chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put
such missing funds or property to personal use.

The elements of malversation, essential for the conviction of an accused, under the above penal
provisions are that —

(a) the offender is a public officer;

(b) he has the custody or control of funds or property by reason of the duties of his office;

(c) the funds or property involved are public funds or property for which he is accountable; and

(d) he has appropriated, taken or misappropriated, or has consented to, or through abandonment
or negligence permitted, the taking by another person of, such funds or property.

Nizurtado was a public officer, having been the Barangay Captain of Panghulo, Malabon, Metro Manila,
from 1983 to 1988; in that capacity, he received and later encashed a check for P10,000.00, specifically
intended by way of a loan to the barangay for its livelihood program; and the funds had come from the
Ministry of Human Settlements, the Metro Manila Commission and "Kilusang Kabuhayan at Kaunlaran."

The only point of controversy is whether or not Nizurtado has indeed misappropriated the funds.

Petitioner was able to encash the check on 18 October 1988 on the basis of a resolution of the Barangay
Council, submitted to the KKK Secretariat, to the effect that a livelihood project, i.e., "T-shirt
manufacturing," had already been identified by the council. The money, however, instead of its being
used for the project, was later lent to, along with petitioner, the members of the Barangay Council.
Undoubtedly, the act constituted "misappropriation" within the meaning of the law. 6

Accused-appellant sought to justify the questioned act in that it was only when the members of the
Barangay Council had realized that P10,000.00 was not enough to support the T-shirt manufacturing
project, that they decided to distribute the money in the form of loans to themselves. He submitted, in
support thereof, a belated 7 certification issued by Rodolfo B. Banquicio, Chief of District IV of the
Support Staff and Malabon Sub-District Officer of KKK, to the effect that Barangay Captains were given
discretionary authority to invest the money in any viable project not falling within the list of project
modules provided by the MHS-NCR Management. Lending the unutilized funds to the members of the
Barangay council could have hardly been meant to be the viable project contemplated under that
certification. Furthermore, it would appear that only Regional Action Officer Ismael Mathay, Jr., and
Deputy Regional Action Officer Lilia S. Ledesma were the officials duly authorized to approve such
projects upon the recommendation of the KKK Secretariat. 8 We could see no flaw in the ratiocination of
the Sandiganbayan, when, in rejecting this defense, it said:

The defense evidence that the Barangay Council changed the T-shirt Manufacturing to whatever
business ventures each members of the Council would select for investment of his P1,000.00 has, as
already stated, little, if any, probative value.

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 the modules developed by the KKK Secretariat or, as stipulated in the
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/validation. 9

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 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:
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 Barangay
Councilman Santos A. Gomez and Barangay Treasurer Manuel P. Romero. The two testified that no
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 service center would so later be
indicated in that resolution as the barangay livelihood project.

The established rule is that unless the findings of fact of the Sandiganbayan are bereft of substantial
evidence to support it, those findings are binding on this court.

The Sandiganbayan has considered the mitigating circumstances of voluntary surrender and restitution
in favor of Nizurtado. Deputy Clerk of Court Luisabel Alfonso Cortez, on 17 January 1989, has certified to
the voluntary surrender of the accused thusly:

CERTIFICATION

THIS CERTIFIES that accused FELIX NIZURTADO in criminal Case No: 13304 voluntarily surrendered
before this court on JANUARY 17, 1989 and posted his bail bond in said case.

Manila, Philippines, JANUARY 17, 1989

(sgd.)

LUISABEL ALFONSO CORTEZ

Deputy Clerk of Court 14

Voluntary surrender (Art. 13, par. 7, Revised Penal Code), therefore, may thus be treated as a modifying
circumstance independent and apart from restitution of the questioned funds by petitioner (Art. 13, par.
10, Revised Penal Code). We are convinced, furthermore, that petitioner had no intention to commit so
grave a wrong as that committed. (Art. 13, par. 3, Revised Penal Code), entitling him to three distinct
mitigating circumstances.

Under Article 48 of the Revised Penal Code, when a single act constitutes two or more grave or less
grave felonies, or when an offense is a necessary means for committing the other, the penalty for the
most serious crime shall be imposed, the same (the penalty) to be applied in the maximum period. The
penalty prescribed for the offense of malversation of public funds, when the amount involved exceeds
six thousand pesos but does not exceed twelve thousand pesos, is prision mayor in its maximum period
to reclusion temporal in its minimum period; in addition, the offender shall be sentenced to suffer
perpetual special disqualification and to pay a fine equal to the amount malversed (Art. 217[3], Revised
Penal Code). The penalty of prision mayor and a fine of five thousand pesos is prescribed for the crime
of falsification under Article 171 of the Revised Penal Code. The former (that imposed for the
malversation), being more severe than the latter (that imposed for the falsification), is then the
applicable prescribed penalty to be imposed in its maximum period. The actual attendance of two
separate mitigating circumstances of voluntary surrender and restitution, also found by the
Sandiganbayan and uncontested by the Solicitor General, entitles the accused to the penalty next lower
in degree. For purposes of determining that next lower degree, the full range of the penalty prescribed
by law for the offense, not merely the imposable penalty because of its complex nature, should, a priori,
be considered. It is our considered view that the ruling in People vs. Gonzales, 73 Phil. 549, as opposed
to that of People vs. Fulgencio, 92 Phil. 1069, is the correct rule and it is thus here reiterated. In fine, the
one degree lower than prision mayor maximum to reclusion temporal minimum is prision mayor
minimum to prision mayor medium (being the next two periods in the scale of penalties [see Art. 64, par
5, in relation to Art. 61, par 5, Revised Penal Code]) the full range of which is six years and one day to ten
years. This one degree lower penalty should, conformably with Article 48 of the Code (the penalty for
complex crimes), be imposed in its maximum period or from eight years, eight months and one day to
ten years. The presence of the third mitigating circumstance of praeter intentionem (lack of intention to
commit so grave a wrong as that committed) would result in imposing a period the court may deem
applicable. 15 Considering, however, that the penalty has to be imposed in the maximum period, the
only effect of this additional mitigating circumstance is to impose only the minimum portion of that
maximum period, 16 that is, from eight years, eight months and one day to nine years, six months and
ten days, from which range the maximum of the indeterminate sentence shall be taken.

Under the Indeterminate Sentence Law (which can apply since the maximum term of imprisonment
would exceed one year), the court is to impose an indeterminate sentence, the minimum of which shall
be anywhere within the range of the penalty next lower in degree (i.e., prision correccional in its
medium period to prision correccional in its maximum period or anywhere from two years, four months
and one day to six years) and the maximum of which is that which the law prescribes after considering
the attendant modifying circumstances. In view of the mitigating circumstances present in this case, the
fine of P10,000.00 may also be reduced (Art. 66, Revised Penal Code) and, since the principal penalty is
higher than prision correccional, subsidiary imprisonment would not be warranted. (Art. 39, par. 3,
Revised Penal Code).

The law and the evidence no doubt sustains Nizurtado's conviction. Given all the attendant
circumstances, it is, nevertheless, the personal and humble opinion of the assigned writer of this
ponencia that appellant deserves an executive commutation of the statutory minimum sentence
pronounced by this Court.
WHEREFORE, the decision of the Sandiganbayan convicting Nizurtado for malversation of public funds
through falsification of public document is AFFIRMED but the sentence, given the circumstances here
obtaining, is MODIFIED by imposing on petitioner a reduced indeterminate sentence of from two years,
four months and one day to eight years, eight months and one day, perpetual special disqualification
and a fine of P2,000.00.

SO ORDERED.

PEOPLE VS ABARE

For review before this Court is the July 18, 2005 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-
H.C. No. 00764 which affirmed the Decision2 dated January 18, 2002 of the Regional Trial Court (RTC) of
Calapan City, Oriental Mindoro, Branch 40, finding Marcelino Abare (appellant) guilty of murder
qualified by treachery and sentencing him to suffer the penalty of reclusion perpetua.

The Information in Criminal Case No. C- 5351 reads as follows:

That on or about the 24th day of November 1997 at around 7:30 o'clock in the evening, in Barangay
Bucayao, Municipality of Calapan, Province of Oriental Mindoro, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused with deliberate intent to take the life of SAMSON
CUYOGAN and with treachery and evident premeditation, did then and there willfully, unlawfully,
feloniously, unexpectedly and treacherously attack, assault, and hack the latter with a scythe, wounding
him on the neck and on the different parts of his body, which wounds being necessarily mortal, thereby
causing the direct and immediate death of the said SAMSON CUYOGAN.

Contrary to law.3

When arraigned, appellant pleaded "not guilty."4 Thereafter trial ensued.

The prosecution presented three witnesses: Armando Yabut (Yabut), Magdaleno Gameng (Gameng) and
Dr. Angelita Legaspi. The defense presented appellant and Senior Police 0fficer 1 Agapito Marasigan.

The CA narrated the evidence presented by the parties, to wit:

Armando Yabut, 36 years old and a resident of Bucayao, Calapan City, Oriental Mindoro, testified that at
around 7:30 in the evening of November 24, 1997, he was at the living room of his house at Barangay
Bucayao, Calapan City together with Magdaleno Gameng, Antonio Bernardino and the victim, Samson
Cuyogan who were among his guests in his birthday celebration. The accused Marcelino Abare earlier
arrived at his house at around 11:30 in the morning and left at around 7:30 in the evening. Incidentally,
the accused is his brother-in-law, the accused being his wife's cousin.

While waiting for the liquor they requested to be bought, the witness, together with Gameng,
Bernardino and the victim Cuyogan, engaged in a conversation. He and the victim were seated with their
backs turned against the window of the living room. He was about two (2) feet away from the left side
of the victim who was leaning against the window pane, while on his left was Gameng and on Gameng's
left was Bernardino. They were seated in such a way that they formed a slightly curved line, with
Gameng and Bernardino facing him and the victim. During the conversation, the witness suddenly saw
the victim fall forward with blood oozing from his neck. He also saw the accused standing outside
holding a bloodied scythe. He then went outside and approached the accused and asked him, "Bakit mo
nagawa ang bagay na yan? Bakit mo siya pinatay? Ano ang kanyang kasalanan?" To which the accused
replied, "Amanos na kami, solved na ang problema ko." The witness then grabbed the hand of the
accused and wrested the scythe from him and threw it towards the side of the house. After a few
minutes, several people arrived including the victim's wife who became hysterical after seeing what
happened to her husband. Thereafter, he and several neighbors brought the victim to the Provincial
Hospital where the latter was pronounced dead on arrival.5

On cross-examination, the witness stated that prior to the incident, no altercation transpired between
the victim and another person. He did not actually see the accused hack the victim and when he wrested
the scythe from the accused, the latter did not resist.6

On the other hand, Magdaleno Gameng testified that he arrived at the house of Armando Yabut at
around 5 o'clock in the afternoon of November 24, 1997 and joined the drinking session in celebration
of Yabut's birthday. He was seated at the left side of Yabut facing the latter. By 7:30 in the evening of
said date, he and his companions Yabut, Bernardino, and Cuyogan were already tipsy, having consumed
a lot of liquor and they ordered for more. While waiting for the liquor they requested to be bought, the
victim suddenly fell face down (sumubasob) and his neck was bloodied and almost severed from the
body. He then saw the accused outside the window holding a scythe with blood flowing down from it.
After a while, he saw Yabut go out of the house and confront the accused about what the latter just did.

On cross-examination, the witness said that while he did not actually see the manner by which the
accused stabbed or hacked the victim, the accused was the only one who was holding a scythe outside
the window after the victim fell face down. Finally, he claimed that he did not know if any altercation
had transpired between the accused and the victim prior to the incident.7

Finally, Dr. Angelita Legaspi, the rural health physician of Calapan City, testified that she conducted the
autopsy on the cadaver of the victim on November 25, 1997, and issued a Necropsy Report8 x x x.

xxxx

Dr. Legaspi explained that the victim suffered abrasions on the chin, left side of the chest, upper forearm
and the left 3rd and 4th fingers probably caused by a sharp object or by rubbing on a rough surface, as
in this case when the victim fell down on the floor. She also stated that the victim sustained a hack
wound on the front portion of the neck which is about eight (8) inches long probably caused by a sharp
object like a bolo or scythe. She opined that the assailant could have been in front, at the side or at the
back of the victim when he inflicted the injury on the neck of the victim. She claimed the injury on the
neck was fatal because it contained major blood vessels including the carotid artery and these blood
vessels were cut. She concluded that the victim died because of loss of blood resulting from the wound
on his neck.9
In his defense, accused-appellant testified that while he was at his house on November 24, 1997,
Armando Yabut came to fetch him to attend the former's birthday celebration. At around 5:00 o'clock in
the afternoon, Yabut requested him to buy one case of beer after which they, together with Gameng
and Bernardino, engaged in a drinking spree. At around 6:00 p.m., the victim Samsom Cuyogan arrived
somewhat drunk, requesting that more beer be bought. After one and half (1 ½) cases more beer were
bought, the group continued drinking. After a while, the accused demanded from the victim the amount
of P200.00 as his wages for the excavation and installation of a deep-well tank in Barangay Natulo,
Naujan, Oriental Mindoro. Apparently, the victim was a contractor in the installation of deep-well tanks
while the accused was one of the victim's workers. When the victim told him that he had no money, he
replied that he could give him rice. The victim, however, told him, "problema mo na yan, hindi ko
problema yan!" The witness then saw a scythe on top of the table which they were then using to cut
calamansi fruits, and he and the victim grappled for it. He was able to take possession of the scythe and
when the victim turned his back on him, he struck the former with a scythe thinking that the victim
would just be hit on the shoulders. He then went out of the door, taken aback by what he did. He
claimed that he had not intention to kill the victim. Thereafter, a number of people arrived, among
those was his aunt who patted him on the left shoulder and told him, "Takbo na!" He then got scared
and ran towards his father's house. His father instructed him to go to Barangay Biga, Calapan City,
together with his brother. They then proceeded to the house of his brother-in-law where he slept for a
while. At twelve midnight, his brother and father fetched him to surrender him to the police authorities.
Finally, he reiterated that he did not intend to kill the victim.10

On cross-examination, he testified that he had an altercation with the victim when he demanded the full
payment of wages due him for the the installation of a deep-well in Naujan, Oriental Mindoro. He got
angry about the victim's reply and struck the latter. He did not intend to hit the victim on the neck and
did not see any blood coming out of the body of the victim. He did not remember having told Yabut, "Ay
amanos na kami, solved na ang aking problema." He claimed he voluntarily surrendered to the police.11

The last witness to take the stand was SPO1 Agapito Marasigan, a member of the Philippine National
Police, who testified that on the night of November 24, 1997, somebody arrived at his residence in
Bucayao, Calapan City and informed him about the killing of the victim Samson Cuyogan. He then
proceeded to the crime scene and on his way thereto, he met the father of the accused who told him
that his son was involved in the killing of Cuyogan and intended to surrender the accused to him. The
father of the accused then fetched the former from where he was staying at that time. The witness then
brought the accused to the police detachment in Barangay Sta. Isabel, Calapan City and called up the
Calapan City Police Station. When police investigators from the police station arrived, he informed them
that the accused voluntarily surrendered to him but he was not aware if the same was recorded in the
police blotter or any relevant police record.12 (Emphasis supplied)

The RTC upheld the prosecution evidence and found appellant guilty of the crime of murder.

The dispositive portion of the RTC decision reads as follows:

Accordingly, this Court finds herein accused Marcelino Abare y Isidro guilty beyond reasonable doubt as
principal by direct participation of the crime of Murder qualified by treachery and punishable under
Article 248 of the Revised Penal Code. Considering the absence of any other aggravating nor mitigating
circumstances, said accused is hereby sentenced to suffer the penalty of RECLUSION PERPETUA with all
the accessory penalties as provided for by law and to pay the costs, to indemnify the heirs of the victim
Samson Cuyogan the amount of P50,000 as civil indemnity and another P50,000 as moral damages.

SO ORDERED.13

The RTC decision was appealed to this Court by the appellant; the decision, was, however, referred to
the CA pursuant to People v. Mateo.14

In its Decision dated July 18, 2005, the CA affirmed the decision of the RTC, to wit:

WHEREFORE, premises considered, the present appeal is hereby DISMISSED for lack of merit. The
January 18, 2002 Decision of the Regional Trial Court of Calapan City, Oriental Mindoro, Branch 40, is
hereby AFFIRMED.

SO ORDERED.15

Appellant filed a Motion for Reconsideration,16 which was denied by the CA through a Resolution17
dated January 27, 2006.

Hence, herein appeal.

In his Brief,18 appellant raises the following errors:

I.

THE COURT A QUO ERRED IN FINDING THAT THE GUILT OF ACCUSED- APPELLANT FOR THE CRIME OF
MURDER HAS BEEN PROVEN BEYOND REASONABLE DOUBT.

II.

THE COURT A QUO ERRED IN NOT APPRECIATING THE MITIGATING CIRCUMSTANCE OF VOLUNTARY
SURRENDER.19

The appeal is not meritorious.

Appellant submits that the prosecution was not able to prove beyond an iota of doubt that the crime of
Murder was committed, and that treachery was attendant in the case at bar.20 Appellant argues that
there was no direct eyewitness to the alleged hacking incident.21 More specifically, appellant contends
that the testimonies of prosecution witnesses Yabut and Magdaleno reveal that neither of them saw ho
the hacking commenced.

To bolster his case, appellant relies on this Court's pronouncement in People v. Lug-aw22 (Lug-aw), to
wit:
"Absent any particulars as to the manner in which the aggression commenced, on how the act which
resulted in the death of the victim unfolded, treachery cannot be appreciated to qualify the killing to
Murder." x x x.23

The reliance of appellant on Lug-aw is misplaced, as the factual circumstances therein do not find
application to the case at bar. In Lug-aw, the Court observed:

The trial court drew conclusion of the presence of treachery because the attack was sudden as Pal-loy
was simply going about his task of fencing his kaingin. We find however, that no one witnessed the
initial attack. As Sonia herself testified, she heard the first shot, went up a hill, climbed a tree and from
there, saw Lug-aw shooting her father with the shot reverberating as the second gun report. Nowhere
do we find in the records any evidence that she witnessed the first shot nor how her father reacted to it.
What she did see was her father trying to repel the assault with a bolo but failed when a second shot hit
him. As this Court held in People v. Castor, where the lone eyewitness was not able to observe the
commencement of the assault, he could not testify on how it all began and developed.24 (Emphasis and
underscoring supplied)

In other words, in Lug-aw, the aggravating circumstance of treachery was not appreciated for the
following reasons: first, it was only after the eyewitness had gone up a hill and climbed a tree upon
hearing the first shot that she saw Lug-aw shooting her father for the second time; and second, since the
eyewitness never saw the first shot, she therefore could not testify how the attack on her father by the
accused therein began and developed. Such circumstances do not obtain in the present case. The
eyewitnesses were just seated right beside the victim when they saw appellant behind the victim who
had suddenly fallen face down in front of them. The CA is correct in its observation thus:

It is undisputed and was clearly established that when the victim suddenly fell face down with blood
oozing from his neck, the witnesses, at that instant, saw the accused-appellant standing by the window
just behind the victim, holding a scythe with blood flowing from it. Any man or even a child with
sufficient reason could easily deduce that the accused-appellant committed that act, and it could be
inferred just as easily that the witnesses did not actually see that act of hacking because of the
suddenness of the act.25 (Emphasis supplied)

Furthermore, considering that the victim was seated when appellant hacked him from behind and that
the attack was sudden,26 only one conclusion can be drawn; that is, the victim had no time to react and
defend himself.

Moreover, even the cited cases in Lug-aw do not find application to the case at bar. In People v.
Castor,27 United States v. Perdon,28 and United States v. Pangilion,29 the Court ruled out the presence
of treachery because of one of the following circumstances: first, the presence of numerous stab
wounds would indicate the possibility of a frontal attack; second, there was a possibility that the victim
could have offered resistance; third; there was no proof that the hacking was sudden or unexpected;
fourth, the presence of several wounds (one at the back) makes it impossible to ascertain which blow
was inflicted first; fifth, there was a possibility that a fight occurred before the hacking; sixth, there was
evidence to show that there was a struggle before the eyewitnesses arrived at the scene of the crime.
None of these circumstances are present in the case at bar.

The defense of appellant that he had acted on impulse30 deserves scant consideration. Appellant would
have this Court believe that he felt aggrieved when the victim refused to pay his salary and even further
commented, "Problema mo 'yan, hindi ko problema 'yan!" It was allegedly this feeling that caused him
to attack the victim. On this score, this Court agrees with the observation of the RTC, to wit:

His (the accused) asseverations that after having an altercation with the victim relative to the payment
for the excavation and installation of the a deep-well tank for which the victim uttered, "Problema mo
'yan, hindi ko problema yan," he saw a scythe on top of a table and thereafter, he and the victim
grappled for the possession of the same and after getting hold of the scythe, the victim turned his back
for which he struck the latter hitting the neck is not only unbelievable but runs counter to the normal
course of human behavior. It is quite unnatural for a person who is quarreling with somebody to just
turn his back from his assailant knowing fully well that the latter is armed with a scythe.31 x x x"

Moreover, appellant testified that Lupito Bernardino and Gameng were inside the house when he hit
the victim.32 If an altercation and subsequent struggle between appellant and the victim really
transpired, then someone should have seen or at the very least heard the commotion. On the contrary,
Yabut and Gameng testified that prior to the incident, no altercation transpired between the victim and
appellant. More importantly, Yabut testified that appellant left his house at 7:30 in the evening, and that
the latter was not with their group while they were waiting for liquor.33 This was corroborated by
Gameng who testified that only the victim, Yabut and Bernardino were with him while they were waiting
for liquor.34 No altercation between appellant and the victim could have transpired if appellant was not
there in the first place. Thus, even the contention of appellant to the effect that during the altercation
he did not intend to use a scythe, but that it was the first weapon he saw on the table, is unbelievable
considering that no actual altercation between him and the victim took place.

The following elements must concur in the appreciation of the aggravating circumstance of treachery:

1. that at the time of the attack, the victim was not in a position to defend himself; and

2. that the offender consciously adopted the particular means, method or form of attack employed by
him.35

In the case at bar, considering that the victim was suddenly hacked on his neck as he was seated with his
back turned against the window and that appellant was outside the window when he hacked the victim,
the first element has been satisfied, because no man could have offered any type of defense under
those circumstances. In addition, since it has been established that no altercation transpired between
appellant and the victim prior to the incident, the conclusion is inevitable that appellant has consciously
chosen a scythe and deliberately hacked the victim from behind. Thus, there exists no cogent reason to
disturb the finding of the lower court on the existence of treachery in the case at bar.
In addition, appellant's claim that he only intended to hit the shoulders of the victim36 and his
insistence that the victim got mad at him when he demanded payment for his services37 do not serve to
mitigate his liability. The mitigating circumstances of no intention to commit so grave a wrong as that
committed38 and that sufficient provocation on the part of the offended party immediately preceded
the act,39 find no application to the case at bar. In the first place, the mitigating circumstance of no
intention to commit so grave a wrong cannot be appreciated in cases of murder qualified by
treachery.40 Moreover, the reply of the victim, "Problema mo 'yan, hindi ko problema yan," can hardly
be considered a sufficient provocation to warrant the appreciation of a mitigating circumstance.

As a result of the foregoing finding, and as conceded by appellant,41 it would be unnecessary to discuss
the second issue, as the imposable penalty would not change even if this Court were to appreciate the
mitigating circumstance of voluntary surrender. As correctly observed by the CA:

Be that as it may, whether or not We appreciate the mitigating circumstance of voluntary surrender is
already immaterial as its existence, as correctly pointed out by the Solicitor General, does not warrant
modification of the penalty imposed upon accused-appellant. Article 63 of the Revised Penal Code
provides:

Article 63. Rules for the application of indivisible penalties.

xxxx

In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following
rules shall be observed in the application thereof:

xxxx

3. When the commission of the act is attended by some mitigating circumstances and there is no
aggravating circumstance, the lesser penalty shall be applied.

In this case, the crime committed is Murder, and under Article 48 of the Revised Penal Code, the
imposable penalty is reclusion perpetua to death. Reclusion Perpetua and death are indivisible
penalties. Since there is no aggravating circumstance in the instant case, even if We are to appreciate
the mitigating circumstance of voluntary surrender, the lower penalty of reclusion perpetua shall still be
applied.42 (Emphasis and underscoring supplied)

Lastly, even if this Court were to appreciate the mitigating circumstances of voluntary surrender with
the mitigating circumstances of no intention to commit so grave a wrong as that committed43 or that
sufficient provocation or threat on the part of the offended party immediately preceded the act,44 the
penalty of reclusion perpetua would still be imposed as provided for in paragraph 3, Article 63 of the
Revised Penal Code.

In conclusion, following current jurisprudence, for the death of Samsom Cuyogan, civil indemnity is
awarded in the amount of P50,000.00 without need of proof other than the commission of the crime.45
Moreover, pursuant to this Court's ruling in People v. Ortiz,46 moral damages in the amount of
P50,000.00 are likewise awarded. Lastly, exemplary damages in the amount of P25,000.00 are
warranted because of the presence of the aggravating circumstance of treachery.47

WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R. CR-HC No. 00764
dated July 18, 2005, finding appellant Marcelino Abare guilty beyond reasonable doubt of Murder is
AFFIRMED with modification as to the damages awarded. Appellant is sentenced to suffer the penalty of
Reclusion Perpetua and ORDERED to pay the heirs of the victim, Samson Cuyogan, the amount of
P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P25,000.00 as exemplary damages.

SO ORDERED.

PEOPLE VS SUMAOY

This is an appeal from the decision[1] of the Regional Trial Court, Branch 2, Tagum, Davao in Criminal
Case No. 7245, finding accused-appellant Pacifico Sumaoy guilty of murder and sentencing him to suffer
the penalty of reclusion perpetua, to indemnify the heirs of the deceased, Zandro Vargas, in the sum of
P30,000.00 and to pay the costs.

Accused-appellant was convicted for the killing on July 9, 1988 of Zandro Vargas, a boy 16 years of age,
in Tagum, Davao. Wilbert Vargas, the victims brother, and Patricio Jacobe, Jr. identified accused-
appellant Pacifico Sumaoy as the assailant, together with three others who have remained unidentified
and at large.

The prosecution presented four witnesses: Wilbert Vargas, Patricio Jacobe, Jr., Enriqueta Vargas and Dr.
Jose Lopez.

Patricio Jacobe, Jr. testified that he worked as a pin boy in a billiard hall on Roxas Street, Tagum, Davao.
At 5:45 p.m. of July 9, 1988, he left the billiard hall to have some beer at the Pacings Carinderia on
Sobrecary Street. Afterward, he went back to the billiard hall, passing by the J Spot Carinderia at the
corner of Roxas and Sobrecary Streets, where he saw the deceased Zandro Vargas talking to accused-
appellant Pacifico Sumaoy. Three other men were with them but Jacobe did not recognize the three.

Upon reaching the billiard hall, Patricio Jacobe, Jr. piled some billiard balls, then went out and stood on
the sidewalk. He was startled by the sound of a gunshot. When he turned to find out where the sound
came from, he saw Zandro Vargas running towards Roxas Street with his right arm bleeding. Zandro
Vargas tried to seek refuge at the Try Me beauty parlor, but he was overtaken by accused-appellant who
dragged him towards a waiting tricycle. Accused-appellant had a gun. The accused-appellant and three
other men then boarded the tricycle taking Zandro Vargas with them. Jacobe allegedly heard one of
accused-appellants companion say that they were taking Zandro to the hospital. Later that evening
Jacobe learned that Zandro was found dead in a kangkong field near the Davao Visayan Village.

The other prosecution witness, Wilbert Vargas, is the brother of the deceased. Wilbert testified that at
6:00 p.m., on July 9, 1988, while he was talking to a friend on Roxas Street near the public market, he
was told that his brother Zandro was being beaten up in a carinderia at the corner of Roxas and
Sobrecary Streets. Wilbert immediately proceeded to the J Spot Carinderia. He saw accused-appellant
aiming his gun at Zandro as the latter was running away. Accused-appellant shot Zandro Vargas, hitting
the latter in the forearm, and causing him to fall on his knees. Zandro Vargas was then dragged by
accused-appellant and three unidentified men towards a tricycle. Wilbert Vargas saw his brother loaded
onto the tricycle like a pig, with Zandros feet hanging out. Wilbert tried to come to the aid of his brother
but accused-appellant pointed his gun at him, causing him to run home in fear.

Wilbert Vargas told his parents what had happened to his brother. They searched for Zandro. They went
to Mangga, Davao and there learned from Jose Montilla, the driver of the tricycle which accused-
appellant Sumaoy and his companions hailed, that Zandro had been killed and that his body had been
dumped in a kangkong field in Visayan Village, Tagum, Davao. Wilbert and his parents proceeded to the
place indicated and there found Zandros dead body.

Wilbert Vargas identified Pacifico Sumaoy as one of the assailants. Wilbert testified that he recognized
Sumaoy because the latter was assigned to the military detachment in the Diwalwal mining area where
Wilbert used to work. Dr. Jose Lopez, Municipal Health Officer of Tagum, who examined the body of
Zandro Vargas, issued a death certificate. Under questioning by the prosecutor, Dr. Lopez testified as
follows:

Q You said you placed your findings in the certificate of death, please read the findings, Doctor.

A (Reading) I hereby certify that I have this 10th day of July 1988 performed an autopsy upon the body
of the deceased Zandro Rinia Vargas and that the cause of death was as follows: Shock, irreversible, due
to gunshot wounds located at (1) right frontal into cranial cavity exiting at right upper occipital; (2) right
eyebrow exiting at left lower occipital; (3) left temporal (no exit); (4) right arm lateral going out at
medical and going into right axillary into thoracic cavity (no exit).

Q: Will you explain your findings to us, Doctor?

A: There were four (4) gunshot wounds found on the body of the victim No. 1 was at the right frontal
(witness pointing at his middle forehead) going into the cranial cavity going outside (witness pointing at
the back of his head); No. 2, at the right eyebrow (witness pointing at the middle of the right eyebrow)
going out to the left lower occipital ( witness pointing at the back of his head, left side near the ear); No.
3 wound is found at the temporal without exit (witness pointing at the left side of his head, a little above
the left ear); and the No. 4 wound is found at the right arm lateral (witness pointing at his right-upper
arm, outside) going at medial aspect then same bullet passed into the axillary region into the thoracic
cavity, no more exit, the right-upper arm as entrance and exit inside of the right-upper arm and then
going into the right chest (witness pointing at the right side of his body just about 3 inches below the
armpit).[2]

Accused-appellant denies participation in the killing of Zandro Vargas. He claims that the whole day of
July 9, 1988 he was on duty as an enlisted personnel of the 1103rd Criminal Investigation Services (CIS)
in Tagum, Davao. Accused-appellant identified a document signed by Technical Sergeant Ricardo Go
called Duty Detail showing that accused-appellant was on duty from 8:00 a.m. of July 9, 1988 to 8:00
a.m. of July 10, 1988. Ricardo Go, Technical Sergeant, Philippine Constabulary and Team Leader of the
Criminal Investigation service Command, Tagum, Davao, and Patrolman Narciso Vismanos, corroborated
the accused-appellants alibi.

On June 6, 1991, the Regional Trial Court of Tagum, Davao rendered a decision finding accused-
appellant guilty of murder qualified by treachery. The trial court noted that accused-appellant Sumaoy
shot Zandro while the latter was running away and held that the three bullet wounds sustained by
Zandro in the head showed that he was shot while in a helpless and defenseless condition. The trial
court appreciated the ordinary aggravating circumstance of taking advantage of public position against
accused-appellant Sumaoy.

Accused-appellant Sumaoy has appealed from this decision of the trial court. He contends that the
prosecution evidence does not fulfill the test of moral certainty necessary to support a judgment of
conviction. He points out that no proof was presented as to the type of weapon used in the shooting of
Zandro Vargas, and he challenges the testimony and credibility of witnesses Wilbert Vargas and Patricio
Jacobe, Jr.

On the other hand, the Solicitor General, in representation of the prosecution, argues that the
circumstances established by the prosecution, when taken together, constitute an unbroken chain
leading to the inevitable conclusion that accused-appellant shot and killed Zandro Vargas. While there is
no direct evidence showing that it was indeed accused-appellant who shot Zandro in the head, the
Solicitor General claims that the testimonies of Wilbert Vargas and Patricio Jacobe that Zandro was last
seen alive with accused-appellant and three other men clearly prove that no other person could have
shot and killed Zandro Vargas than accused-appellant Pacifico Sumaoy.

We agree with the Solicitor General that the circumstantial evidence in this case establishes beyond
reasonable doubt that accused-appellant shot and killed Zandro Vargas. These circumstances, as pointed
out by the Solicitor General, are the following:

(a) Zandro was being mauled by appellant and his companions (p. 5, TSN, June 28, 1990);

(b) As Zandro was attempting to run, appellant drew his pistol and shot Zandro (pp. 5-6, Ibid);

(c) Zandro was hit on the arm (p. 6, TSN, Ibid and p. 8 TSN, July 13, 1990);

(d) Zandro fell on his knees (p. 6, TSN, June 28, 1990);

(e) Zandro was dragged towards a motorized pedicab by appellant (p. 6, TSN, June 28, 1990 and p. 8,
TSN, July 13, 1990);

(f) Zandro was loaded on the motorized pedicab and appellant and his companions boarded the same
pedicab (pp. 6-7, TSN, June 28, 1990 and pp. 8-10, TSN, July 13, 1990);

(g) Zandro was found dead (p. 11, TSN, June 28, 1990).[3]
Together these circumstances constitute an unbroken chain which leads to only one fair and reasonable
conclusion that the accused is guilty of the killing of Zandro Vargas.

It was established by positive testimony that accused-appellant Sumaoy shot the deceased in the arm
and thereafter took the victim with him to an undisclosed location with the help of three other men.
Only the accused-appellant was seen with a firearm. Less than 24 hours later, the victim was found
dead. Not only was accused-appellant identified as the person with whom Zandro Vargas was last seen
alive, he was also positively identified as the person who shot Zandro Vargas in the arm. There is thus
proof of aggression on the part of the accused which, taken with the other circumstances, shows he had
the intent to inflict injury upon the victim.

In the case of People v. Fulinara,[4] the accused were convicted of kidnapping with murder based upon
positive testimony that the victim was last seen alive when he was forcibly abducted by two armed men
in army fatigues who were later identified as the accused. After the victim was abducted by the accused
he was later found dead. As in the case before us, there was no eyewitness at the precise moment the
victim was killed.

Accused-appellant contends that he cannot be convicted without the presentation of the gun in
evidence. He alleges that the prosecutions failure to match the slugs recovered from the body of Zandro
Vargas with accused-appellants own firearm precludes his conviction. This contention has no merit. The
presentation and identification of the weapon used are not indispensable to prove the guilt of the
accused.[5] The time which elapsed from the moment the victim was last seen alive and the moment his
body was found narrows the possibility that another agent caused his death,[6] especially where an
agression was established against the victim before he disappeared with the accused.

The accused-appellant tries to discredit the testimonies of the principal prosecution witnesses. He
points out that Patricio Jacobe, Jr. testified that Zandro was shot in the right arm, while Wilbert Vargas
said Zandro was shot in the left. This is, however, an inconsistency concerning a minor matter which
does not impair credibility of the witnesses. The inconsistency negates any suspicion that the
testimonies were perjured or rehearsed.[7] Moreover, findings of fact of trial courts, particularly with
respect to the credibility of witnesses who personally appeared and testified before them, must be
respected on appeal.[8]

Accused-appellants defense of alibi is of no moment. Not only was accused-appellant positively

identified as the person who had shot and taken Zandro Vargas to an undisclosed placed. It is also
settled that for alibi to prosper, it is not enough that accused-appellant prove that he was somewhere
else when the crime was committed. He must demonstrate that he could not have been physically
present at the place of the crime or in its immediate vicinity at the time of its commission. The
testimony of accused-appellant. T/Sgt. Go and Pat. Narciso Vismanos failed to show that it was
impossible for the accused to be at the scene of the crime. The CIS office was only one kilometer away
from the scene of the crime. In addition, Vismanos admitted that he was so absorbed in his work that he
did not really know whether accused-appellant was in the office premises the entire day of the latters
duty.[9]
While the evidence in this case sufficiently establishes the guilt of the accused-appellant for the killing of
victim Zandro Vargas, we think he cannot be held liable for murder because of the absence of evidence
as to the manner of the actual killing. Where no particulars are known as to the manner in which the
aggression was made or how the act which resulted in the death of the victim began and developed, it
cannot be established from mere suppositions that the accused perpetrated the killing with
treachery.[10] The evidence shows that the aggression against the victim began when he was still at the
J Spot Carinderia. As a matter of fact, according to Patricio Jacobe, Jr., the deceased was trying to flee
from the accused-appellant when the latter shot him, thus indicating that the victim had been
forewarned of a greater aggression against him. The assault on the victim cannot be said to have been
made in a sudden or unexpected manner so as to justify a finding of treachery.[11]

The trial court also erred in finding the aggravating circumstance of taking advantage of official position
in the commission of the offense. This circumstance requires that the accused, as a public officer, used
the influence or reputation of his position for the purpose of committing the crime. If the accused could
have perpetrated the crime without occupying his position, then there is no abuse of public position. In
the case before us, no evidence was adduced to show that the killing of Zandro vargas was in any way
facilitated by the accused-appellants public position. It was not even shown whether the accused-
appellant wore his uniform or used his service firearm when he committed the crime.[12]

WHEREFORE, the decision of the Regional Trial Court is MODIFIED, finding accused-appellant Pacifico
Sumaoy guilty of homicide, and SENTENCING him to suffer an indeterminate penalty of 12 years of
prision mayor, as minimum, to 17 years of reclusion temporal, as maximum, to indemnify the heirs of
the deceased Zandro Vargas in the increased sum of P50,000.00 and to pay the costs.

SO ORDERED.

Regalado (Chairman), Romero, Puno, and Torres, Jr., JJ., concur.