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People v. Delos Santos

Facts:

On the early morning of October 5, 1995, at the Maitum Highway in Cagayan

de Oro City, a team of PNP members undergoing a Special Training Course were performing an Endurance Run. They were jogging at the right side of thelane. A speeding Isuzu Elf ran into them, resulting to deaths and injuries. Theaccused surrendered to the Governor, and was eventually convicted ofMultiple Murder, Multiple Frustrated Murder, and Multiple AttemptedMurder. He was sentenced to death by the Trial Court. Hence, this automaticreview.

Issue:

Whether there was intentional killing or attempt to kill the policemen, or amere reckless imprudence

Held:

From the convergence of circumstances, we are inclined to believe that thetragic event was more a product of reckless imprudence than of a maliciousintent on Glenn’s part. First, as testified to by prosecution rebuttal witnessDanilo Olarita, the place of the incident was "very dark," as there was nomoon. And according to PAGASA’s observed weather report within the vicinity

of Cagayan de Oro City covering a radius of 50 kilometers, at the time theevent took place, the sky was overcast, i.e., there was absolutely no break inthe thick clouds covering the celestial dome globe; hence, there was no way forthe moon and stars to be seen. Neither were there lampposts that illuminatedthe highway. Second, the jogging trainees and the rear guards were all wearing black T-shirts, black short pants, and black and green combat shoes, whichmade them hard to make out on that dark and cloudy night. The rear guardshad neither reflectorized vests or gloves nor flashlights in giving hand signals.Third, GLENN was driving on the proper side of the road, the right lane. Onthe other hand, the jogging trainees were occupying the wrong lane, the same

lane as Glenn’s vehicle was traversing. Worse, they were facing the samedirection as Glenn’s truck such that their backs were turned towards theoncoming vehicles from behind. Fourth, no convincing evidence waspresented to rebut Glenn’s testimony that he had been momentarily blinded by the very bright and glaring lights of the oncoming vehicle at the oppositedirection as his truck rounded the curve. He must have been still reeling fromthe blinding effect of the lights coming from the other vehicle when he plowed



into the group of police trainees. Indeed, as pointed out by appellant, instincttells one “to stop or swerve to a safe place the moment he sees a cow, dog, orcat on the road, in order to avoid bumping or killing the same"; and more so ifthe one on the road is a person. It would therefore be inconceivable forGLENN, then a young college graduate with a pregnant wife and three very

young children who were dependent on him for support, to have deliberatelyhit the group with his truck.

We are convinced that the incident, tragic though it was in light of the numberof persons killed and seriously injured, was an accident and not an intentionalfelony. It is significant to note that there is no shred of evidence that GLENNhad an axe to grind against the police trainees that would drive him intodeliberately hitting them with intent to kill. Glenn’s offense is in failing toapply the brakes, or to swerve his vehicle to the left or to a safe place themovement he heard and felt the first bumping thuds. Had he done so, many

trainees would have been spared.

The test for determining whether a person is negligent in doing an act wherebyinjury or damage results to the person or property of another is this: Could aprudent man, in the position of the person to whom negligence is attributed,foresee harm to the person injured as a reasonable consequence of the courseactually pursued? If so, the law imposes a duty on the actor to refrain fromthat course or to take precautions to guard against its mischievous results, andthe failure to do so constitutes negligence. Reasonable foresight of harm,followed by the ignoring of the admonition born of this prevision, is always

necessary before negligence can be held to exist.

GLENN showed an inexcusable lack of precaution. Article 365 of the RevisedPenal Code states that reckless imprudence consists in voluntarily, but withoutmalice, doing or failing to do an act from which material damage results byreason of inexcusable lack of precaution on the part of the person performingor failing to perform such act, taking into consideration (1) his employment oroccupation; (2) his degree of intelligence; (4) his physical condition; and (3)other circumstances regarding persons, time and place.

GLENN, being then a young college graduate and an experienced driver,should have known to apply the brakes or swerve to a safe place immediatelyupon hearing the first bumping thuds to avoid further hitting the othertrainees. By his own testimony, it was established that the road was slipperyand slightly going downward; and, worse, the place of the incident was foggyand dark. He should have observed due care in accordance with the conduct ofa reasonably prudent man, such as by slackening his speed, applying his



brakes, or turning to the left side even if it would mean entering the oppositelane (there being no evidence that a vehicle was coming from the oppositedirection). It is highly probable that he was driving at high speed at the time. And even if he was driving within the speed limits, this did not mean that he was exercising due care under the existing circumstances and conditions at the

time.

Considering that the incident was not a product of a malicious intent butrather the result of a single act of reckless driving, GLENN should be heldguilty of the complex crime of reckless imprudence resulting in multiplehomicide with serious physical injuries and less serious physical injuries.

INSULAR LIFE G.R. No. 163255

ASSURANCE COMPANY,

LIMITED, Present:

Petitioner,

Puno, C.J.,

Chairperson,

Sandoval-Gutierrez,

- versus - Corona,

Azcuna, and

Garcia, JJ.

Promulgated:



MANUEL M. SERRANO,

Respondent. June 22, 2007

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

D E C I S I O N

PUNO, C.J .:

Before us is a petition for review of the October 9, 2003 decision and April 15, 2004 resolution of

the Court of Appeals in CA-G.R. SP No. 76341.

First, the antecedent facts.

In June 1987 respondent Manuel M. Serrano bought from petitioner Insular Life Assurance

Company, Limited, a life insurance policy called ―Diamond Jubilee, Participating‖ on hisunderstanding that he shall be



POLICY-HOLDERS

IF YOU ARE A VICTIM OF INSULAR LIFE ASSURANCE’S REFUSAL TO HONOR ITS

REPRESENTATION THAT YOUR POLICY BECOMES SELF-LIQUIDATING AFTER A LAPSE OF

SEVEN (7) YEARS, PLEASE ATTEND A SPECIAL MEETING OF SIMILARLY SITUATED POLICY

HOLDERS AND CO-OWNERS OF INSULAR LIFE ON OCTOBER 16, 1996, 2:00 P.M. AT THE

MAKATI SPORTS CLUB, ALFARO ST., SALCEDO VILLAGE, MAKATI, TO CONSIDER

COLLECTIVE ACTION TO PROTECT YOUR INTERESTS. RSVP – CALL MRS. VILLAROYA OR

MRS. CARIAGA AT 817-22-35 OR 816-25-64

In addition, respondent filed on December 11, 1996 a civil case for specific performance, sum of

money, and damages before the Regional Trial Court of Makati City against petitioner, Atty. Montalban,

Insurance Underwriter Mila Ramos, Agency Manager Portia Valdez, and District Sales Manager Alfredo

Sta. Maria, docketed as Civil Case No. 96-2009.

In turn, petitioner filed in May 1997 a complaint for libel against respondent before the City

Prosecution Office of Makati City. The complaint alleged that the published notice was libelous as it

depicted petitioner as having “victimized’ or “conned” its policyholders by refusing to honor an alleged

representation that its Diamond Jubilee Life Insurance policies were self-liquidating after 7 years.

Petitioner maintained that the policies it issued bore no such representation. As a result of the libelous

publication, petitioner allegedly suffered dishonor, discredit and damage in an amount not less than

P100,000,000.00.

In his answer to the complaint, respondent contended that the wor d ―victim‖ truthfully signified

his situation as owner of six Diamond Jubilee Life Insurance policies which petitioner‘s agents

represented to be self-liquidating after 7 years but which turned out to be not.

On October 6, 1997, the City Prosecutor of Makati dismissed petitioner’s complaint for lack of

probable cause, ruling that there was no defamatory imputation, and no malice in the publication.

Petitioner’s



motion for reconsideration was denied.

Petitioner sought a review before the Secretary of Justice. On April 18, 2002, the Secretary of

Justice affirmed the dismissal of petitioner‘s complaint for lack of probable cause.

Petitioner assailed the ruling before the Court of Appeals via a petition for certiorari. On

October 9, 2003, the Court of Appeals dismissed the petition, finding no grave abuse of

discretion on the part of the Secretary of Justice in affirming the dismissal of petitioner‘s

complaint. Petitioner‘s motion for reconsideration was denied. Hence, this petition.

Petitioner assigns the following errors:

I.

THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THEINCORRECT FINDINGS OF THE DEPARTMENT OF JUSTICE INSOFARAS IT CONCLUDED THAT THE ELEMENT OF DEFAMATORYIMPUTATION IS MISSING, HENCE, THE PUBLICATION, SUBJECT OFTHE CRIMINAL COMPLAINT IS NOT LIBELOUS.

II.

THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING THATTHERE WAS GRAVE ABUSE OF DISCRETION ON THE PART OF THEDEPARTMENT OF JUSTICE WHEN IT REFUSED TO FILE THEINFORMATION AGAINST RESPONDENT DESPITE THE PUBLICATIONOF THE SUBJECT LIBELOUS NOTICE.

The general rule is that the courts do not interfere with the discretion of the public prosecutor in

determining the specificity and adequacy of the averments in a criminal complaint. Thedetermination of probable cause



for the purpose of filing an information in court is an executive function which pertains at the

first instance to the public prosecutor and then to the Secretary of Justice. The duty of the Court

in appropriate cases is merely to determine whether the executive determination was done

without or in excess of jurisdiction or with grave abuse of discretion. Resolutions of the

Secretary of Justice are not subject to review unless made with grave abuse.

In the case at bar, the City Prosecutor dismissed petitioner‘s complaint for libel because two

elements of the crime were missing, defamatory imputation and malice. Under Article 353 of the

Revised Penal Code, an accused may be held liable for the crime if the following elements

concur, viz : (1) the allegation of a discreditable act or condition concerning another, (2)

publication of the charge, (3) identity of the person defamed, and (4) existence of malice.

It is not disputed that the second and third elements are present. The subject article was

published in the October 8 and 11, 1996 issues of the Manila Bulletin, and alluded to petitioner‘s

refusal to honor an alleged representation that its Diamond Jubilee Life Insurance policies were

self-liquidating after 7 years. Determination of probable cause in the case at bar, therefore,

hinged on the existence of the first and last elements.

In concluding that there was no defamatory imputation and that there was no attendant malice,

the City Prosecutor explained:

x x x [P]robable cause does not exist against respondent Manuel Serrano towarrant his indictment in Court for the crime of libel, considering that he did not

act with malice in causing the publication of the notice in question in the issuesof Manila Bulletin, on October 8 and 11, 1996, since he can be considered as a

victim or was made to suffer from an act of the Insular Life Assurance Co. Ltd. innot honoring that his insurance policies will self-liquidate after paying premiumsthereon for a period of seven (7) years. The notice in question did not portray

Insular Life Assurance Co. Ltd. as a swindler but it merely notifies (sic )

Diamond Jubilee policy holders similarly situated as himself to meet andconsider collective action in order to protect their rights and interests which tothe respondent‘s personal perception have been violated by the said insurancecompany for its refusal to honor the representation of its agents that his insurance policies will become self-liquidating after the lapse of seven (7) years. It must benoted that Serrano even filed a complaint before the Regional Trial Court ofMakati, Branch 150, for Specific Performance, Sum of Money and Damages



against the Insular Life Assurance Co. Ltd. and its agents in order to vindicate thewrong committed against him by the said insurance company and its agents.

Furthermore, the fact that it took the complainant insurance company seven (7)months to file the case against herein respondent Serrano from the last day of the

publication of the notice in question x x x certainly cast doubts ( sic), [on] theveracity of the instant complaint. (emphases ours)

Corroborating the City Prosecutor‘s conclusion, the Secretary of Justice added:

x x x x It is our perception that respondent acted with utmost good faith and

without malice when he caused the publication of the alleged libelous “urgentnotice” to all those who may feel victim of Insular Life‘s refusal to honor its

representation that their policy becomes self-liquidating after a lapse of seven (7)years. In the first place, we see nothing libelous in the published “urgent

notice.”

To say in public that Insular Life Assurance refused to honor its representationthat the policy issued becomes self-liquidating after a lapse of seven (7) yearsdoes not amount to an imputation of a ―crime, or of a vice or defect, real or

imaginary, or any act, omission, condition, status or circumstance that tends tocause the dishonor, discredit or contempt of the person defamed.‖ x x x But if it is[at] all defamatory, it is qualified privileged communication made on an occasionof privilege without actual malice. Through the published ―urgent notice,‖

respondent apparently made in good faith a communication on a subject matter inwhich he has an interest or in reference to which he has duty of reaching out toother persons having corresponding interest or duty, although it may containmatters which, without this privilege would be actionable, and although the dutyis not a legal one but only a moral or social duty of imperfect obligation.Circumstances exist or are reasonably believed to exist which cast uponrespondent the duty of making a communication to certain third persons in the performance of such duty or where the person [is] so situated that it becomes rightin the interest of society that he should tell third persons certain facts which he, ingood faith, proceeds to do (People v. Cantos [CA] 51 O.G. 2995; 33 Am. Jur.124-125). (emphases ours)

In determining whether there was prima facie case for libel against respondent, the City

Prosecutor and the Secretary of Justice viewed the subject article in its entirety, and considered



the same as a mere notice of meeting addressed to Diamond Jubilee policyholders. The words

―victim‖ and ―refusal to honor its representation,‖ although used in the notice, were dismissed as

not defamatory per se. Mere assertion that a person failed or refused to perform a contractual

obligation does not, in and of itself, injure that person‘s business reputation or deprive him of

public confidence. Whatever defamatory interpretation of which the subject notice may have

been susceptible of was considered debunked by the good faith that motivated the respondent in

causing the publication of the notice, i.e., to redress what he considered to be a violation of his

rights and those of others similarly situated as himself. Res pondent‘s action was considered

inconsistent with ―malice‖ which is characterized by a reckless disregard of the truth or falsity of

one‘s remarks.

In arriving at their unanimous conclusion — that no probable cause for libel exists — the public prosecutor and the Secretary of Justice had deliberated on the factual and legal backdrops of the

case. Their shared conclusion was arrived at neither whimsically nor capriciously as to be

correctable by certiorari. Grave abuse of discretion is familiarly defined as a capricious and

whimsical exercise of judgment that is so patent and gross as to amount to an evasion or a virtual

refusal to perform a duty enjoined by law or to act at all in contemplation of law, as when the

power is exercised in an arbitrary and despotic manner by reason of passion or hostility. Such

grave abuse of discretion was not shown in the case at bar, as correctly ruled by the Court of

Appeals. Even assuming that the Secretary of Justice may have erred in considering the subject

publication as qualifiedly privileged, the error does not appear to be so grave or malevolent as to

be correctable by certiorari. A reading of the Justice Secretary‘s resolution dated April 18, 2002

shows that his supposition as to the privileged character of the subject notice was merely his

riposte to the assumption that the notice was defamatory. At any rate, not every erroneous

conclusion of law or fact is an abuse of discretion. Erroneous inferences of fact or conclusions of

law are correctable by certiorari only if they are of such a degree as to amount to a clear case of

abuse of discretion of the grave and malevolent kind.

Considering the foregoing, application of the Court‘s policy of non-interference in the conduct of

preliminary investigations is warranted. The Court will not interfere with the executive

determination of probable cause for the purpose of filing an information in court, in the absence

of grave abuse of discretion. We reiterate:



The institution of a criminal action depends upon the sound discretion of the[prosecutor]. He may or may not file the complaint or information, follow or notfollow that presented by the offended party, according to whether the evidence inhis opinion, is sufficient or not to establish the guilt of the accused beyond

reasonable doubt. The reason for placing the criminal prosecution under thedirection and control of the [prosecutor] is to prevent malicious or unfounded prosecution by private persons. x x x Prosecuting officers under the power vestedin them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shownto be guilty of a crime committed within the jurisdiction of their office. They haveequally the legal duty not to prosecute when after an investigation they becomeconvinced that the evidence adduced is not sufficient to establish a prima facie

case.

x x x The Courts cannot interfere with the [prosecutor]‘s discretion and control of

the criminal prosecution. It is not prudent or even permissible for a Court tocompel the [prosecutor] to prosecute a proceeding originally initiated by him onan information, if he finds that the evidence relied upon by him is insufficient forconviction. Neither has the Court any power to order a [prosecutor] to prosecuteor file an information within a certain period of time, since this would interferewith the [prosecutor]‘s discretion and control of criminal prosecutions. x x x In aclash of views between a judge who did not investigate and the [prosecutor] whodid, or between the [prosecutor] and the offended party or the defendant, those ofthe [prosecutor]‘s should normally prevail. x x x

IN VIEW WHEREOF, the petition is DENIED. The assailed Decision dated October 9, 2003

and Resolution dated April 15, 2004 of the Court of Appeals in CA-G.R. SP No. 76341 are

AFFIRMED.

SO ORDERED.

G.R. No. 146848 October 17, 2006

GMA NETWORK, INC. (formerly known as "REPUBLIC BROADCASTING SYSTEM,

INC.") and REY VIDAL, petitioners,vs.JESUS G. BUSTOS, M.D., TEODORA R. OCAMPO, M.D., VICTOR V. BUENCAMINO,

M.D., CESAR F. VILLAFUERTE, M.D., ARTEMIO T. ORDINARIO, M.D., and

VIRGILIO C. BASILIO, M.D., respondents.



D E C I S I O N

GARCIA, J .:

Assailed and sought to be set aside in this petition for review1 under Rule 45 of the Rules ofCourt is the decision2 dated January 25, 2001 of the Court of Appeals (CA) in CA-G.R. CV No.52240 which reversed and set aside an earlier decision3 of the Regional Trial Court (RTC) ofMakati City, Branch 64, in Civil Case No. 88-1952, an action for damages thereat commenced by the herein respondents Jesus G. Bustos, Teodora R. Ocampo, Victor V. Buencamino, Cesar F.Villafuerte, Artemio T. Ordinario and Virgilio C. Basilio, all physicians by profession and theformer chairman and members, respectively, of the Board of Medicine, against the herein petitioners GMA Network, Inc. (formerly Republic Broadcasting System, Inc.) and Rey Vidal.

The facts:

In August 1987, the Board of Medicine of the Professional Regulation Commission (PRC)conducted the physicians‘ licensure examinations. Out of the total two thousand eight hundred

thirty-five (2,835) examinees who took the examinations, nine hundred forty-one (941) failed.

On February 10, 1988, a certain Abello and over two hundred other unsuccessful examinees fileda Petition for Mandamus before the RTC of Manila to compel the PRC and the board of medicalexaminers to re-check and reevaluate the test papers. As alleged, mistakes in the counting of thetotal scores and erroneous checking of answers to test questions vitiated the results of theexaminations.

As news writer and reporter of petitioner GMA Network, Inc. assigned to gather news fromcourts, among other beats, its co-petitioner Rey Vidal covered the filing of the mandamus petition. After securing a copy of the petition, Vidal composed and narrated the news coveragefor the ten o‘clock evening news edition of GMA‘s Channel 7 Headline News.

The text of the news report,4 as drafted and narrated by Vidal and which GMA Network, Inc.aired and televised on February 10, 1988, runs:

Some 227 examinees in the last August Physician Licensure Examinations today askedthe Manila [RTC] to compel the [PRC] and the Medical Board of Examiners to recheckthe August 1987 test papers. The petitioners [examinees] today went to the Presiding

Judge to also ask for a special raffling of the case considering that the next physiciansexaminations have been scheduled for February [1988] …. They said that the gross,

massive, haphazard, whimsical and capricious checking that must have been going on foryears should now be stopped once and for all.

The last examination was conducted last August … at the PRC central offices, the Far

Eastern University and the Araullo High School, the exams on multiple choice or

http://www.lawphil.net/judjuris/juri2006/oct2006/gr_146848_2006.html#fnt1
















matching type involve 12 subjects including general medicine, biochemistry, surgery andobstetrics and gynecology.

21 schools participated in the examination represented by some 2,835 medical studentgraduates, 1,894 passed and 141 failed.

The results of the exams were released December 9 and were published the following dayin metropolitan papers last years (sic).

A group of failing examinees enlisted the help of the Offices of the President and theVice President and as a result were allowed by PRC … to obtain the official set of testquestions. The students then researched … and produced the key answers to the keyquestions.

The petitioners were also allowed to see their own test papers, most of them copying the papers ….

With these copies, they were able to match the scores and the correct answers in theexaminations. They found that the errors in checking were so material that they actuallylowered the scores that formed the individual ratings of the examinees in the varioussubjects.

Examples of the discrepancies are to be found in identical answers being rated asincorrect in one examinee‘s paper but correct in another. There is also the case of two

different answers being rated as correct. There are indications of wrong counting of totalscores per subject so that the totals are either short by two up to four points.

Finally, there are raw scores that have been transmuted incorrectly so that a passing scorewas rendered a failure. The petitioners said that the haphazard and whimsical andcapricious checking should now be stopped once and for all. They said that the nine yearsformal studies and the one year internship not to mention the expenses and the blood,sweat, and tears of the students and their families will have been rendered nugatory. The petitioners also noted that Com. Francia had promised last January 12 to rectify the errorsin the checking and yet they have not received the appropriate action promised whereasthe next exams have been set for Feb. 20, 21, 27 and 28. (Words in bracket added.)

Stung by what they claim to be a false, malicious and one-sided report filed and narrated by aremorseless reporter, the herein respondents instituted on September 21, 1988 with the RTC of

Makati City a damage suit against Vidal and GMA Network, Inc., then known as the RepublicBroadcasting System, Inc. In their complaint,5 docketed as Civil Case No. 88-1952 and raffled toBranch 64 of the court, the respondents, as plaintiffs a quo, alleged, among other things, thatthen defendants Vidal and GMA Network, Inc., in reckless disregard for the truth, defamed them by word of mouth and simultaneous visual presentation on GMA Network, Inc.‘s Channel 7.They added that, as a measure to make a forceful impact on their audience, the defendants madeuse of an unrelated and old footage (showing physicians wearing black armbands) to make itappear that other doctors were supporting and sympathizing with the complaining unsuccessful







examinees. According to the plaintiffs, the video footage in question actually related to a 1982demonstration staged by doctors and personnel of the Philippine General Hospital (PGH)regarding wage and economic dispute with hospital management.

In their answer with counterclaim, the defendants denied any wrongdoing, maintaining that their

February 10, 1988 late evening telecast on the filing of the mandamus petition was contextually aconcise and objective narration of a matter of public concern. They also alleged that the pressfreedom guarantee covered the telecast in question, undertaken as it was to inform, withoutmalice, the viewing public on the conduct of public officials. And vis-à-vis the particularallegation on the film footages of the PGH demonstration, defendants tagged such footages as"neutral." Pressing the point, defendants hastened to add that the footages were accompanied,when shown, by an appropriate voiceover, thus negating the idea conjured by the plaintiffs tocreate an effect beyond an obligation to report.

In the course of trial, the plaintiffs presented testimonial evidence to prove their allegations aboutthe Vidal report having exposed them, as professionals, to hatred, contempt and ridicule. And in

a bid to establish malice and bad faith on the part of the defendants, the plaintiffs adducedevidence tending to show that the former exerted no effort toward presenting their (plaintiffs‘)

side in subsequent telecasts.

In a decision6 dated October 17, 1995, the trial court found for the herein petitioners, asdefendants a quo, on the postulate that the Vidal telecast report in question is privileged.Dispositively, the decision reads:

WHEREFORE, in view of the foregoing considerations, plaintiffs‘ complaint fordamages against defendants Republic Broadcasting System Incorporated and Rey Vidalis hereby DISMISSED.

The defendants‘ counterclaim for damages is likewise dismissed.

SO ORDERED.

Following the denial of their motion for reconsideration,7 herein respondents went on appeal tothe CA in CA-G.R. CV No. 52240. As stated at the threshold hereof, the appellate court, in itsdecision8 of January 25, 2001, reversed and set aside that of the trial court, to wit:

WHEREFORE, the Decision dated October 17, 1995 is hereby REVERSED and SET

ASIDE and [petitioners] are hereby ordered to pay, in solidum, the following:

a) the amount of P100,000.00 for each of the [respondents] as moral damages;

b) the amount of P100,000.00 for each of the [respondents] as exemplary damages;

c) the amount of P20,000.00 as attorney‘s fee;

d) and cost of suit.













SO ORDERED. (Words in brackets added.)

Hence, petitioners‘ present recourse, submitting for the Court‘s consideration the followingquestions:

A.

WHETHER OR NOT THE CA, AFTER DECLARING THE NEWS TELECAST OFFEBRUARY 10, 1988 AS QUALIFIEDLY PRIVILEGED COMMUNICATION,COMMITTED REVERSIBLE ERROR AND ABUSED ITS DISCRETION ININJECTING ACTUAL MALICE TO THE NEWS TELECAST OF FEBRUARY 10,1988 JUST SO THAT RESPONDENT BOARD OF MEDICINE COULD RECOVERMORAL AND EXEMPLARY DAMAGES.

B.

WHETHER OR NOT THE CA COMMITTED REVERSIBLE ERROR AND ABUSEDITS DISCRETION IN COMPLETELY REJECTING PETITIONERS‘ EVIDENCETHAT THE CHARACTER GENERATED WORDS ‗FILE VIDEO‘ WERE

INDICATED ON SCREEN TO IDENTIFY THE SHOWING OF THE OLD FILMFOOTAGE IN THE NEWS TELECAST OF FEBRUARY 10, 1988.

C.

WHETHER OR NOT THE CA COMMITTED REVERSIBLE ERROR … INIMPUTING MALICE UPON PETITIONERS FOR NOT PRESENTING A TAPECOPY OF THE NEWS TELECAST OF FEBRUARY 10, 1988 ON THE

GRATUITOUS DECLARATION THAT A TAPE COPY COULD BE EASILYSECURED FROM THE NATIONAL TELECOMMUNICATIONS COMMISSION(NTC) WHICH ALLEGEDLY KEEPS FILE COPIES OF ALL SHOWS FOR ACERTAIN PERIOD OF TIME.

D.

WHETHER OR NOT RESPONDENT BOARD OF MEDICINE CHAIRMAN ANDMEMBERS THEREOF, WHO NEVER QUESTIONED THE COURT OF APPEALS‘

DECISION DATED JANUARY 25, 2001 IN A SEPARATE AND INDEPENDENTPETITION BEFORE THE HONORABLE COURT, CAN ASK FOR AN INCREASED

AWARD IN DAMAGES FROM THE HONORABLE COURT UNDER THEIRCOMMENT DATED 7 MAY 2001.

Summed up, the issues tendered in this petition boil down to the following: (1) whether or notthe televised news report in question on the filing of the petition for mandamus against therespondents is libelous; and (2) whether or not the insertion of the old film footage depicting thedoctors and personnel of PGH in their 1982 demonstrations constitutes malice to warrant theaward of damages to the respondents.



It bears to stress, at the outset, that the trial court found the disputed news report not actionableunder the law on libel, hence no damages may be recovered. Wrote that court:

This Court finds the telecast of February 10, 1988 aired over Channel 7 by [petitioner]Rey Vidal as a straight news report of the acts and conduct of the members of the

Medical Board of Examiners who are public officers, devoid of comment or remarks, andthus privileged, and recognized under the 1987 Constitution.

A comparative examination of the telecast of the disputed news report with the Petitionfor Mandamus entitled Abello, et al., vs. Professional Regulation Commission … filed

before the [RTC] by the medical examinees reveals that the disputed news report is but anarration of the allegations contained in and circumstances attending the filing of the saidPetition for Mandamus. In the case of Cuenco vs. Cuenco, G.R. No. L-29560, March 31,1976 …, [it was] … held that the correct rule is that a fair and true report of a complaint

filed in Court without remarks nor comments even before an answer is filed or a decision promulgated should be covered by the privilege. xxx. This Court adopts the ruling [in

Cuenco] to support its finding of fact that the disputed news report consists merely of asummary of the allegations in the said Petition for Mandamus, filed by the medicalexaminees, thus the same falls within the protected ambit of privileged communication.

xxx xxx xxx

Thus, [petitioners], in consideration of the foregoing observations … cannot be held

liable for damages claimed by [respondents] for simply bringing to fore information onsubjects of public concern.9 (Words in brackets supplied.)

The CA, too, regarded the text of the news telecast as not libelous and as a qualifiedly privileged

communication, "[it having been] merely lifted or quoted from the contents and allegations inthe said petition [for mandamus]."10 But unlike the trial court, the CA saw fit to award damagesto the respondents, it being its posture that the insertion to the news telecast of the unrelated 1982PGH picket film footage is evidence of malice. Without quite saying so, the CA viewed thefootage insertion as giving a televised news report otherwise privileged a libelous dimension. Inthe precise words of the appellate court:

While it is the duty of the media to report to the public matters of public concern andinterest, the report should be a fair, accurate and true report of the proceedings. Thesubject telecast failed in this aspect. The insertion of the film footage showing the

doctors‟ demonstration at the PGH several times during the news report on the

petition filed by the board flunkers undoubtedly created an impression that the saiddemonstration was related to the filing of the case by the board flunkers. The

insertion of the film footage without the words „file video‟, and which had no

connection whatsoever to the petition, was done with the knowledge of the

[petitioners], thus, in wanton and reckless disregard of their duty to the public to render afair, accurate and true report of the same.

xxx xxx xxx











Privileged matters may be absolute or qualified.14 Absolutely privileged matters are notactionable regardless of the existence of malice in fact. In absolutely privileged communications,the mala or bona fides of the author is of no moment as the occasion provides an absolute bar tothe action. Examples of these are speeches or debates made by Congressmen or Senators in theCongress or in any of its committees. On the other hand, in qualifiedly or conditionally

privileged communications, the freedom from liability for an otherwise defamatory utterance isconditioned on the absence of express malice or malice in fact. The second kind of privilege, infine, renders the writer or author susceptible to a suit or finding of libel provided the prosecutionestablished the presence of bad faith or malice in fact. To this genre belongs " private

communications" and " fair and true report without any comments or remarks" falling under anddescribed as exceptions in Article 354 of the Revised Penal Code.15

To be sure, the enumeration under the aforecited Article 354 is not an exclusive list ofconditional privilege communications as the constitutional guarantee of freedom of the speechand of the press has expanded the privilege to include fair commentaries on matters of publicinterest.16 .

In the case at bench, the news telecast in question clearly falls under the second kind of privileged matter, the same being the product of a simple narration of the allegations set forth inthe mandamus petition of examinees Abello, et al ., devoid of any comment or remark. Both theCA and the trial court in fact found the narration to be without accompanying distortive ordefamatory comments or remarks. What at bottom petitioners Vidal and GMA Network, Inc.,then did was simply to inform the public of the mandamus petition filed against the respondentdoctors who were admittedly the then chairman and members of the Board of Medicine. It wasclearly within petitioner Vidal‘s job as news writer and reporter assigned to cover government

institutions to keep the public abreast of recent developments therein. It must be reiterated thatthe courts a quo had determined the news report in question to be qualifiedly privilegedcommunication protected under the 1987 Constitution.

This brings us to the more important question of whether or not the complaining respondents, intheir effort to remove the protection accorded by the privilege, succeeded in establishing ill-willand malice on the part of the petitioners in their televised presentation of the news report indispute, thus committing libel.

The CA, adopting the respondents‘ line on the matter of malice, resolved the question in theaffirmative. As the CA noted, the insertion of an old film footage showing doctors wearing blackarmbands and demonstrating at the PGH, without the accompanying character-generated words" file video," created the impression that other doctors were supporting and sympathizing with theunsuccessful examinees.

The Court disagrees.

Contrary to the CA‘s findings, the identifying character -generated words " file video" appeared tohave been superimposed on screen, doubtless to disabuse the minds of televiewers of the ideathat a particular footage is current. In the words of the trial court, the phrase " file video" was"indicated on screen purposely to prevent misrepresentation so as not to confuse the viewing















public."17 The trial court added the observation that "the use of file footage in TV news reportingis a standard practice."18 At any rate, the absence of the accompanying character-generatedwords " file video" would not change the legal situation insofar as the privileged nature of theaudio-video publication complained of is concerned. For, with the view we take of the state ofthings, the video footage was not libel in disguise; standing without accompanying sounds or

voices, it was meaningless, or, at least, conveyed nothing derogatory in nature.

And lest it be overlooked, personal hurt or embarrassment or offense, even if real, is notautomatically equivalent to defamation. The law against defamation protects one‘s interest inacquiring, retaining and enjoying a reputation "as good as one‘s character and conduct warrant"in the community.19 Clearly then, it is the community, not personal standards, which shall betaken into account in evaluating any allegations of libel and any claims for damages on accountthereof.

So it is that in Bulletin Publishing Corp. v. Noel ,20 we held:

The term "community" may of course be drawn as narrowly or as broadly as the user ofthe term and his purposes may require. The reason why for purposes of the law on libelthe more general meaning of community must be adopted in the ascertainment of relevantstandards, is rooted deep in our constitutional law. That reason relates to the fundamental public interest in the protection and promotion of free speech and expression, an interestshared by all members of the body politic and territorial community. A newspaper …should be free to report on events and developments in which the public has a legitimateinterest, wherever they may take place within the nation and as well in the outside world,with minimum fear of being hauled to court by one group or another (however defined inscope) on criminal or civil charges for libel, so long as the newspaper respects and keepwithin the general community. Any other rule on defamation, in a national community

like ours with many, diverse cultural, social, religious an other groupings, is likely to produce an unwholesome "chilling effect" upon the constitutionally protected operationsof the press and other instruments of information and education.

It cannot be over-emphasized furthermore that the showing of the 1982 film footage, assumingfor argument that it contained demeaning features, was actually accompanied or simultaneouslyvoiced over by the narration of the news report lifted from the filing of the mandamus petition.As aptly put by the petitioners without controversion from the respondents, there was nothing inthe news report to indicate an intent to utilize such old footages to create another news story beyond what was reported.21

To be sure, actual malice, as a concept in libel, cannot plausibly be deduced from the fact of petitioners having dubbed in their February 10, 1988 telecast an old unrelated video footage. Asit were, nothing in the said footage, be it taken in isolation or in relation to the narrated Vidalreport, can be viewed as reputation impeaching; it did not contain an attack, let alone a false one,on the honesty, character or integrity or like personal qualities of any of the respondents, whowere not even named or specifically identified in the telecast. It has been said that if the matter isnot per se libelous, malice cannot be inferred from the mere fact of publication.22 And as recordstend to indicate, the petitioners, particularly Vidal, do not personally know or had dealings with



























any of the respondents. The Court thus perceives no reason or motive on the part of either petitioner for malice. The respondents too had failed to substantiate by preponderant evidencethat petitioners were animated by a desire to inflict them unjustifiable harm or at least to placethem in a discomforting light.

Surely, the petitioners‘ failure, perhaps even their indisposition, to obtain and telecast therespondents‘ side is not an indicia of malice. Even the CA, by remaining mum on this point,

agrees with this proposition and with the petitioners‘ proffered defense on the matter. As

petitioner Vidal said while on the witness box, his business as a reporter is to report what the public has the right to know, not to comment on news and events, obviously taking a cue fromthe pronouncement of the US Fifth Circuit Court of Appeals in New York Times Co. v. Connor

23 that "a reporter … may rely on statements made by a single source even though they reflect only

one side of the story without fear of libel prosecution by a public official ."

What is more, none of the herein respondents ever made a claim or pretence that he or all ofthem collectively was or were among the demonstrating PGH doctors in the 1982 video footage.

It thus puzzles the mind how they could claim to have been besmirched by the use of the samevideo in the subject news telecast.

Given the foregoing considerations, the propriety of the award by the CA of moral andexemplary damages need not detain us long. Suffice it to state that moral damages may berecovered only if the existence of the factual and legal bases for the claim and their causalconnection to the acts complained of are satisfactorily proven.24 Sadly, the required quantum of proof is miserably wanting in this case. This is as it should be. For, moral damages, albeitincapable of pecuniary estimation, are designed not to impose a penalty but to compensate onefor injury sustained and actual damages suffered.25 Exemplary damages, on the other hand, mayonly be awarded if the claimants, respondents in this case, were able to establish their right to

moral, temperate, liquidated or compensatory damages.

26

Not being entitled to moral damages,neither may the respondents lay claim for exemplary damages.

In all, the Court holds and so rules that the subject news report was clearly a fair and true report,a simple narration of the allegations contained in and circumstances surrounding the filing by theunsuccessful examinees of the petition for mandamus before the court, and made without malice.Thus, we find the petitioners entitled to the protection and immunity of the rule on privilegedmatters under Article 354 (2) of the Revised Penal Code. It follows that they too cannot be heldliable for damages sought by the respondents, who, during the period material, were holding public office.

We close this ponencia with the following oft-quoted excerpts from an old but still very muchapplicable holding of the Court on how public men should deport themselves in the face ofcriticism:

The interest of society and the maintenance of good government demand a full discussionof public affairs. Complete liberty to comment on the conduct of public men is a scalpelin the case of free speech. The sharp incision of its probe relieves the abscesses ofofficialdom. Men in public life may suffer under a hostile and unjust accusation; the



















wound can be assuaged by the balm of clear conscience. A public officer must not be toothin-skinned with reference to comment upon his officials acts. Only thus can theintelligence and dignity of the individual be exalted. xxx.27

IN VIEW WHEREOF, the petition is GRANTED. Accordingly, the assailed decision dated

January 25, 2001 of the appellate court in CA-G.R. CV No. 52240 is REVERSED and SETASIDE and that of the trial court is REINSTATED and AFFIRMED in toto.

No pronouncement as to costs.

SO ORDERED.

G.R. No. L-40624 June 27, 1975

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. RICARDO

NEPOMUCENO, JR. Y BERNARDINO, Accused-Appellant .

ESGUERRA, J.:

The decision of the Court of First Instance of Bulacan, Branch V (Sta. Maria), convictingaccused Ricardo Nepomuceno, Jr. y Bernardo of "Bigamy punishable under the provisions ofArticle 349, of the Revised Penal Code, and sentencing him to suffer an indeterminate penalty ofSix (6) Months and One (1) day of Prision Correccional , as minimum, to Six (6) Years and Four(4) Months of Prision Mayor , as maximum, with costs", is now before Us for review because theCourt of Appeals (Division of Five Justices) in its Resolution of April 14, 1975, in CA-G.R. No.12641-CR, by a four to one vote ruled that only a question of law is involved in the appeal, anddecision on the case is not dependent on factual findings to be made so as to bring the case

within the competence of the appellate court. The dissenting opinion holds that there is noquestion of law involved as what is to be decided is the question of whether or not theinformation filed was defective for not including the second wife as an accused and, hence, theCourt of Appeals could have decided it on the merits by affirming the decision of the lowercourt.virtualawlibrary virtuallaw library

The uncontested facts are:

The Information dated December 8, 1969 reads as follows:

"The undersigned Provincial Fiscal accuses Ricardo Nepomuceno,

Jr. of the crime of bigamy, penalized under the provisions ofArticle 349 of the Revised Penal Code, committed as follows: virtuallaw library

That on or about the 16th day of August, 1969, in the municipalityof Norzagaray, province of Bulacan, Philippines, and within theJurisdiction of this Honorable Court, the said accused Ricardo Nepomuceno, Jr., being then previously united in lawful marriagewith one Dolores Desiderio, and without the said marriage having







Appellant's contention that the crime of bigamy entails the joint liability of two persons whomarry each other, while the previous marriage of one or the other is valid and subsisting iscompletely devoid of merit. Even a cursory scrutiny of Art. 349 of the Revised Penal Code willdisclose that the crime of bigamy can be committed by one person who contracts a subsequentmarriage while, the former marriage is valid and subsisting. Bigamy is not similar to the crimes

of adultery and concubinage, wherein the law (Art. 344, first and third pars., Revised PenalCode, and Sec. 4, Rule 110, Rules of Court) specifically requires that the culprits, if both arealive, should he prosecuted or included in the information. In the crime of bigamy, both the firstand second spouses may be the offended parties depending on the circumstances, as when thesecond spouse married the accused without being aware of his previous marriage. Only if thesecond spouse had knowledge of the previous undissolved marriage of the accused could she beincluded in the information as a co-accused. Bigamy is a public offense and a crime againststatus, while adultery and concubinage are private offenses and are crimes against chastity. Inadultery and concubinage, pardon by the offended party will bar the prosecution of the case,which is not so in bigamy. It is, therefore, clear that bigamy is not similar to adultery orconcubinage. virtualawlibrary virtuallaw library

When the accused raised the question of defective information for non-inclusion of the secondwife as an accused for the first time in a motion to quash, the lower court ruled:

The information is clear and it is only the accused Ricardo Nepomuceno, Jr. whocontracted a second marriage, he being previously united in lawful marriage withone Dolores Desiderio, and without the same having been legally dissolved, andthere being no showing in the recitation of facts in the information to the effect

that Norma Jimenez, the second wife, had knowledge of the first marriage, anddespite said knowledge she contracted the second marriage with the accused; nor

is there any showing that Norma Jimenez had had a previous marriage of her ofher own, we see no reason for the inclusion of Norma Jimenez , the second wife,in the information. (Emphasis for emphasis)

Whether or not the second spouse, Norma Jimenez, should be included in the information is aquestion of fact that was determined by the fiscal who conducted the preliminary investigation inthis case. That the fiscal did not include Norma Jimenez in the information simply showsabsence of evidence that could make her liable for the crime. Her non-inclusion in theinformation as a co-accused of appellant Nepomuceno in the crime of bigamy is not a defect inthe information filed against Nepomuceno alone since her inclusion or not in said informationdepended upon available evidence against her. The conclusion is, therefore, irresistible that thelower court committed no error when it refused to quash the information against the accused, Nepomuceno, on the mere flimsy ground that the second wife was not included therein.virtualawlibrary virtuallaw library

WHEREFORE, the decision of the trial court convicting the appellant, Ricardo Nepomuceno, Jr.y Bernardino, and sentencing him accordingly, as stated on pages one (1) and three (3) hereof, isaffirmed with costs against the accused-appellant. virtualawlibrary virtuallaw library

SO ORDERED.



August 22, 1935

G.R. No. L-42757

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.

FEDERICO ZAPATA, ET AL., defendants. FEDERICO ZAPATA, appellant.

Jesus O. Serrano for appellant.

Office of the Solicitor-General Hilado for appellee.

Vickers, J.:

The brothers Federico Zapata and Celestino Zapata were tried for frustrated murder in the Court of First

Instance of Abra on an information alleging:

Que en o hacia el 3 de marzo de 1934, en el Municipio de Dolores, Provincia de Abra, Islas Filipinas, los

referidos acusados, cooperando y ayundadose mutuamente y obrando de consuno, voluntaria, ilegal y

criminalmente, y sin motivo justificado agredieron con alevosia y premeditacion conocida con armas

mortiferas, a saber, con bolos, a Simeon Turqueza, infiriendole al efecto varias heridas mortales en

diferentes partes de su cuerpo, ejecutando asi todos los actos de ejecucion que hubieran causado la

muerte del ofendido, y si dichas heridas no le causaron la muerte del mismo, esto era debido a causas

independientes de la voluntad y propio desistimiento de los referidos acusados.

The trial judge found that the guilt of Celestino Zapata was not proved beyond a reasonable doubt and

acquitted him, with one-half of the costs de oficio, but found Federico Zapata guilty of frustrated

homicide, and sentenced him to suffer an indeterminate sentence from two years of prision correccional

to eight years and one day of prision mayor , to indemnify the offended party in the sum of P210, and to

pay one-half of the costs.

The attorney for the appellant Federico Zapata alleges that the lower court erred in not finding that the

appellant acted in legitimate self-defense, and in finding him guilty of frustrated homicide and

sentencing him therefor.

It appears from the evidence that the two brothers, Federico and Celestino Zapata, attacked the

offended party in the provincial road at the time and place mentioned in the information and inflicted

upon him several wounds with their bolos; that the injured man took refuge under the batalan of a

nearby house where he fell down unconscious; that his assailants continued to strike him with their

bolos until they saw Calixto Reyes approaching, when they ran away. The offended party received

wounds on the head and neck, in the back, and on the arms and legs and the left heel, sixteen in all.

Many of them were serious, and some of them might easily have proved fatal. All the wounds were

caused with a cutting instrument or instruments. Some of the more serious were the wound on the back

of the neck 2 Â½ inches long and one-half inch deep; that in the back 7 inches long and 2 Â½ inches



deep; two wounds on the right leg, one 2 inches long and Â½ inch deep, the other 5 inches long and 1

Â½ inches deep; the wound on the left leg 4 inches long and 1 inch deep; two wounds on the left heel 3

to 4 inches long and 1 Â½ inches deep. The injured man received medical treatment for two months, for

which he paid his physician P200. The lower court found that the offended party was entitled to recover

a further sum of P10 for loss of wages.

The appellant testified that he was alone when he met the offended party, armed with a bolo and a

cane; that the offended party challenged him to fight and struck him on the left arm with the cane; that

the offended party stooped down to pick up a stone and the appellant struck him on the head and back

with his bolo; that the offended party then went under the house of one Josefa Bajo and began to throw

stones at the appellant; that the appellant followed the offended party, and they had a fight with their

bolos, but as the bolo of the offended party was shorter than that of the appellant the offended party

was not able to wound the appellant; that the offended party fell down and the appellant continued to

slash him with the bolo. The appellant took the offended party's bolo and went home.

The story of the appellant impresses us as being obviously untrue. The motive for the commission of the

crime was shown to be the fact that the offended party had seduced the sister of the defendants but

refused to marry her. If the offended party was provided with a bolo and a heavy cane as alleged by the

appellant, it seems most improbable that he would stoop down to pick up a stone to throw at the

appellant. Although the appellant received a bruise on the arm, and claims that he was struck by the

offended party with a cane, no cane was found at the place where the incident occurred. Likewise

improbable seems the testimony of the appellant that he took possession of and carried home the bolo

of the offended party. Two bolos were found in the house of the appellant, the longer of which he

admittedly made use of in wounding the offended party; the shorter one was claimed by the appellant

to be the bolo of the offended party. The offended party testified that he was unarmed, and that he

parried the blows with arms. This testimony of the offended party seems to be corroborated by the

wounds he received on the arms and the fact that the appellant was not scratched. The offended party

identified the smaller bolo, Exhibit B, as the bolo used by appellant's brother.

The trial judge found that the qualifying circumstance of treachery was not duly proved, and in this we

concur, because it does not clearly appear that the offended party was suddenly attacked from behind

without any warning. Taking into consideration the number and seriousness of the wounds inflicted

upon the offended party, we agree with the lower court that it was clearly the intention of the appellant

to take the life of the offended party. In view of the circumstances of the case, we increase the

minimum sentence to be served by the appellant from two to four years of prision correccional . As thus

modified, the decision appealed from is affirmed, with the costs against the appellant.

Avanceña, C.J., Abad Santos, Hull, and Recto, JJ., concur. .



Wong vs. Court of Appeals [GR 117857, 2 February 2001]Second Division, Quisumbing (J): 4 concur

Facts: Luis S. Wong was an agent of Limtong Press Inc. (LPI), a manufacturer of calendars. LPI

would print sample calendars, then give them to agents to present to customers. The agentswould get the purchase orders of customers and forward them to LPI. After printing thecalendars, LPI would ship the calendars directly to the customers. Thereafter, the agents wouldcome around to collect the payments. Wong, however, had a history of unremitted collections,which he duly acknowledged in a confirmation receipt he co-signed with his wife. Hence,Wong's customers were required to issue postdated checks before LPI would accept their purchase orders. In early December 1985, Wong issued 6 postdated checks totaling P18,025.00,all dated 30 December 1985 and drawn payable to the order of LPI. These checks were initiallyintended to guarantee the calendar orders of customers who failed to issue post-dated checks.However, following company policy, LPI refused to accept the checks as guarantees. Instead, the parties agreed to apply the checks to the payment of Wong's unremitted collections for 1984

amounting to P18,077.07. LPI waived the P52.07 difference. Before the maturity of the checks,Wong prevailed upon LPI not to deposit the checks and promised to replace them within 30days. However, Wong reneged on his promise. Hence, on 5 June 1986, LPI deposited the checkswith Rizal Commercial Banking Corporation (RCBC). The checks were returned for the reason"account closed." The dishonor of the checks was evidenced by the RCBC return slip. On 20June 1986, LPI through counsel notified Wong of the dishonor. Wong failed to makearrangements for payment within 5 banking days. On 6 November 1987, Wong was charged with3 counts of violation of BP 22 under three separate Informations for the three checks amountingto P5,500.00, P3,375.00, and P6,410.00 (Criminal Case CBU-12055, 12057, and 12058. Uponarraignment, Wong pleaded not guilty. Trial ensued. On 30 August 1990, the trial court issued itsdecision, finding Wong guilty beyond reasonable doubt of the offense of Violations of Section 1of BP 22 in 3 Counts and sentencing Wong to serve an imprisonment of 4 months for each count;to pay Limtong the sums of P5,500.00, P6,410.00 and P3,375.00 corresponding to the amountsindicated in Allied Banking Checks 660143451, 66[0]143464 and 660143463 all issued on 30December 1985 together with the legal rate of interest from the time of the filing of the criminalcharges in Court and pay the costs. Wong appealed his conviction to the Court of Appeals. On 28October 1994, it affirmed the trial court's decision in toto. Wong filed the petition for review oncertiorari.

I ssue: Whether the presumption of knowledge of lack of funds under Section 2 of BP 22 shouldnot apply to Wong, as he avers that LPI deposited the checks 157 days after the 30 December1985 maturity date, and that he should not be expected to keep his bank account active andfunded beyond the 90-day period.

Held: Section 2 (Evidence of knowledge of insufficient funds) of BP 22 provides that "Themaking, drawing and issuance of a check payment of which is refused by the drawee because ofinsufficient funds in or credit with such bank, when presented within ninety (90) days from thedate of the check, shall be prima facie evidence of knowledge of such insufficiency of funds orcredit unless such maker or drawer pays the holder thereof the amount due thereon, or makesarrangements for payment in full by the drawee of such check within five (5) banking days after



receiving notice that such check has not been paid by the drawee." An essential element of theoffense is "knowledge" on the part of the maker or drawer of the check of the insufficiency of hisfunds in or credit with the bank to cover the check upon its presentment. Since this involves astate of mind difficult to establish, the statute itself creates a prima facie presumption of suchknowledge where payment of the check "is refused by the drawee because of insufficient funds

in or credit with such bank when presented within 90 days from the date of the check." Tomitigate the harshness of the law in its application, the statute provides that such presumptionshall not arise if within 5 banking days from receipt of the notice of dishonor, the maker ordrawer makes arrangements for payment of the check by the bank or pays the holder the amountof the check. Contrary to Wong's assertions, nowhere in said provision does the law require amaker to maintain funds in his bank account for only 90 days. Rather, the clear import of the lawis to establish a prima facie presumption of knowledge of such insufficiency of funds under thefollowing conditions (1) presentment within 90 days from date of the check, and (2) the dishonorof the check and failure of the maker to make arrangements for payment in full within 5 bankingdays after notice thereof. That the check must be deposited within 90 days is simply one of theconditions for the prima facie presumption of knowledge of lack of funds to arise. It is not an

element of the offense. Neither does it discharge Wong from his duty to maintain sufficient fundsin the account within a reasonable time thereof. Under Section 186 of the Negotiable InstrumentsLaw, "a check must be presented for payment within a reasonable time after its issue or thedrawer will be discharged from liability thereon to the extent of the loss caused by the delay." Bycurrent banking practice, a check becomes stale after more than 6 months, or 180 days. LPIdeposited the checks 157 days after the date of the check. Hence said checks cannot beconsidered stale. Only the presumption of knowledge of insufficiency of funds was lost, but suchknowledge could still be proven by direct or circumstantial evidence. LPI did not deposit thechecks because of the reassurance of Wong that he would issue new checks. Upon his failure todo so, LPI was constrained to deposit the said checks. After the checks were dishonored, Wongwas duly notified of such fact but failed to make arrangements for full payment within 5 bankingdays thereof. There is sufficient evidence that Wong had knowledge of the insufficiency of hisfunds in or credit with the drawee bank at the time of issuance of the checks.

FIRST DIVISION

[G.R. Nos. 115150-55. September 27, 1996]

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

CALONZO Y AMBROSIO, accused-appellant .

D E C I S I O N

BELLOSILLO, J .:

REYDANTE CALONZO Y AMBROSIO was charged with Illegal Recruitment in

Large Scale and five (5) counts of Estafa by Bernardo Miranda, Danilo delos Reyes, Elmer Clamor, Belarmino Torregrosa and Hazel de Paula. On 5April 1994 the Regional Trial Court of Pasig found the accused guilty ascharged and sentenced -



1. In Criminal Case No. 98850 for Estafa, to suffer an indeterminate prisonterm of eleven (11) years, eleven (11) months and eleven (11) days of prision mayor to fifteen (15) years, eight (8) months and twenty-one (21)days of reclusion temporal , to reimburse the complainant-victim BernardoMiranda in the amount of P120,000.00 and to pay the costs.

2. In Criminal Case No. 98851 for Estafa, to suffer an indeterminate prisonterm of eleven (11) years, eleven (11) months and eleven (11) days of prision mayor to fifteen (15) years, eight (8) months and twenty-one(21) days of reclusion temporal , to reimburse thecomplainant-victim Danilo de los Reyes in the amount of P120,000.00 and topay the costs.

3. In Criminal Case No. 98852 for Estafa, to suffer an indeterminate prisonterm of eleven (11) years, eleven (11) months and eleven (11) days of prision mayor to fifteen (15) years, eight (8) months and twenty-one (21)days of reclusion temporal , to reimburse the complainant-victim ElmerClamor in the amount of P120,000.00 and to pay the costs.

4. In Criminal Case No. 98853 for Estafa, to suffer an indeterminate prisonterm of nine (9) years, eleven (11) months and eleven (11) days of prision

mayor to thirteen (13) years, eight (8) months and twenty-one (21) days ofreclusion temporal , to reimburse the complainant-victim BelarminoTorregrosa in the amount of P100,000.00 and to pay the costs.

5. In Criminal Case No. 98854 for Estafa, to suffer an indeterminate prison

term of eleven (11) years, eleven (11) months and eleven (11) days ofprision mayor to fifteen (15) years, eight (8) months and twenty-one (21)days of reclusion temporal, to reimburse the complainant-victim Hazel dePaula in the amount of P120,000.00 and to pay the costs.

6. In Criminal Case No. 98855 for Illegal Recruitment (Large Scale), tosuffer the penalty of life imprisonment, to pay a fine of One HundredThousand Pesos (P100,000.00) and to pay the costs.

In the successive service of his sentences, the accused shall be credited infull with the period of his preventive imprisonment.

The above terms shall also be subject to the application of the Three-FoldRule.[1]

Accused-appellant in this appeal assails his conviction by the trial court. Heclaims that the court below erred in disregarding the testimony of NenitaMercado, an employee of the Philippine Overseas Employment



Administration (POEA), who categorically stated that their records indicatedthat Calonzo never processed complainants' applications for employmentabroad. He concludes from that fact alone that he cannot be deemed tohave engaged in the recruitment of workers for employment abroad.

As regards the estafa cases, accused-appellant contends that the court aquo erred in giving credence to the testimonies of prosecution witnessesconsidering that the amounts claimed to have been collected by him did notcorrespond to the amounts indicated in the receipts presented by thecomplaining witnesses.

The antecedents: Sometime in February 1992 Danilo de los Reyes and hisbrother-in-law Belarmino Torregrosa met Reydante Calonzo in the house ofLoreta Castañeda at No. 10 P. Burgos Street, Pasig, Metro Manila. In thatmeeting Calonzo lost no time in informing them that he could provide thememployment abroad, particularly Italy, for a fee. Calonzo was so glib andpersuasive that De los Reyes and Torregrosa were quickly convinced to casttheir lot with him. Upon returning home they took stock of their assets andresources and came up with the figures sufficient for the processing of theirapplications for employment abroad. Two months after their initial meeting,or on 13 April 1992, De los Reyes gave Calonzo P50,000.00. He alsopledged the Ford Fiera of his brother-in-law to Calonzo for P70,000.00 inorder to come up with the P120,000.00 processing fee imposed by Calonzo.The latter then informed De los Reyes of his "scheduled" departure for Italyon 29 April 1992. However, despite the lapse of the period, De los Reyesand Torregrosa remained in the Philippines although their recruiter reiterated

his promise to send them to Italy.

On 1 May 1992, instead of sending them to Italy, they were billeted at AlohaHotel along Roxas Boulevard. The following day, or on 2 May 1992, theyboarded a plane that was supposed to take them to Italy. But Calonzo hadanother destination in mind. They landed in Bangkok instead where theirvisas for Italy, according to Calonzo, would be processed. They stayed atP.S. Guest Hotel for one and a half months. While in Bangkok the accusedagain collected money from them purportedly to defray the expenses fortheir visas. They also incurred expenses for food and accommodation, andfor overstaying, De los Reyes had to pay 2800 bahts to the immigrationauthorities only to discover to their utter dismay that Calonzo had alreadyreturned to the Philippines.

In their helplessness in a foreign land they sought the help of LoretaCastañeda by calling her up in Manila. Castañeda promptly fetched themfrom Bangkok and brought them back to the Philippines. The day followingtheir arrival they went to the office of Calonzo on Padre Faura. Despite



their frustrations in Bangkok Calonzo still insisted that he would send themto Italy as he promised. In their naivetè which was no match to theunmitigated audacity of Calonzo, De los Reyes and Torregrosa still clung tothe promises of Calonzo hoping against hope that the latter would still fulfillthem. However the promises remained unfulfilled so they looked again for

Calonzo. But this time their quarry had already absconded.

They verified from the POEA whether Calonzo or his R. A. C. Business Agency was duly authorized and licensed to recruit people for employmentabroad. The POEA certified that R. A. C. Business Agency was not licensedto recruit workers for overseas employment.

Torregrosa substantiated the above account. He testified that he gaveCalonzo a total of P100,000.00. On cross-examination however hestated that he gave such amount on 27 April 1992 and not on 13 April1992 as testified to by De los Reyes. But the date appearing on the receiptmarked Exhibit A is 13 April 1992. Torregrosa also claimed that while inBangkok he gave Calonzo an additional amount of US$100.00.

On her part, Hazel de Paula testified that she first met appellant and theother complainants at the house of Loreta Castañeda at No. 10 P. BurgosStreet, Pasig, Metro Manila. Convinced that she would eventually beemployed in Italy as a domestic helper she gave Calonzo P120,000.00.Unlike the other complaining witnesses, she was not able to fly to Bangkokon 2 May 1992 as her passport was not yet available. She left only on 6May 1992 where she was met by Calonzo at the airport and brought to the

P.S. Guest Hotel where her companions who had arrived earlier werealready billeted. She said that while in Bangkok Calonzo asked money againfrom her.

Elmer Clamor, a 28-year old resident of Gen. Trias, Cavite, was similarlysituated with Hazel de Paula. Clamor narrated that he gave CalonzoP120,000.00 for the latter's commitment to send him to Italy, and in factwhile in Bangkok he gave Calonzo US$250.00 more.

Bernardo Miranda, a construction worker from Talisay, Batangas, wasanother victim of Calonzo. Lured by the latter's assurances that he would besent to Italy, he gave Calonzo a total of P120,000.00 for the processing ofhis application for work in Italy. But, like all the rest of them, Miranda onlyreached Bangkok. The promised job, his hard-earned money and Calonzohimself eventually disappeared.



Senior Labor Employment Officer Nenita Mercado of the POEA confirmed thatneither Reydante Calonzo nor his R. A. C. Business Agency was authorized torecruit workers for employment abroad.

Reydante Calonzo tells us his own story. He admits being engaged in the

consultancy business through his R. A. C. Business Agency but denies anyinvolvement in recruitment activities. He admits knowing Loreta Castañedaand Leticia Solis as the two have sought his assistance regarding their realestate business. He denies knowing the complaining witnesses exceptDanilo de los Reyes and Belarmino Torregrosa who once visited him in hisoffice. While he disclaims the receipts presented by the prosecution asofficial receipts of his R. A. C. Business Agency he admits that thesignatures thereon were similar to his.

We frustrate the expectations of the accused. Article 13, par. (b), of theLabor Code defines recruitment and placement as -

(A)ny act of canvassing, enlisting, contracting, transporting, utilizing, hiringor procuring workers, and includes referrals, contract services, promising oradvertising for employment, locally or abroad, whether for profit or not;Provided, that any person or entity which, in any manner, offers or promisesfor a fee employment to two or more persons shall be deemed engaged inrecruitment and placement.

Illegal recruitment is specifically defined in Art. 38 of the Code thus -

(a) Any recruitment activities, including the prohibited practicesenumerated under Article 34 of this Code, to be undertaken by non-licenseesor non-holders of authority shall be deemed illegal and punishable underArticle 39 of this Code x x x x

(b) Illegal recruitment when committed by a syndicate or in large scale shallbe considered an offense involving economic sabotage and shall be penalizedin accordance with Article 39 hereof.

Illegal recruitment is deemed committed by a syndicate if carried out by agroup of three (3) or more persons conspiring and/or confederating with

one another in carrying out any unlawful or illegal transaction, enterpriseor scheme defined under the first paragraph hereof. Illegal recruitment isdeemed committed in large scale if committed against three (3) or morepersons individually or as a group.

All the five (5) complaining witnesses met each other for the first time at thehouse of Loreta Castañeda. They were not in any way acquainted with one



another prior to that meeting save for Danilo de los Reyes and his brother-in-law Belarmino Torregrosa. They all came from different places, yet, theywere all united in pointing to the Calonzo as the person who enticed them toapply for employment abroad. Of course, Calonzo could not explain whatmotivated the complaining witnesses to file these cases against him. The

most that Calonzo could do on the witness stand was to deny all the chargesagainst him. Alas, his denial is at most lame and cannot prevail over thepositive assertions of the complaining witnesses. In People v. Villafuerte [2] we ruled -

x x x The absence of evidence as to an improper motive actuating theprincipal witnesses of the prosecution strongly tends to sustain no impropermotive existed and their testimony is worthy of full faith and credit.Accused-appellant's denial cannot prevail over the positive assertions ofcomplainants who had no motive to testify falsely against her except to tellthe truth.

Illegal recruitment in large scale is committed when a person "(a)undertakes any recruitment activity defined under Article 13(b) or anyprohibited practice enumerated under Article 34 of the Labor Code; (b) doesnot have a license or authority to lawfully engage in the recruitment andplacement of workers; and (c) commits the same against three ormore persons, individually or as a group."[3] The testimony ofcomplainants evidently showed that Calonzo was engaged in recruitmentactivities in large scale. Firstly, he deluded complainants into believingthat jobs awaited them in Italy by distinctly impressing upon them that he

had the facility to send them for work abroad. He even showed them hispassport to lend credence to his claim. To top it all, he brought them toBangkok and not to Italy. Neither did he have any arrangements inBangkok for the transfer of his recruits to Italy. Secondly,R. A. C. Business Agency was licensed to recruit workers for employment abroad. Appellantadmitted this fact himself. Thirdly, appellant recruited five (5) workers thusmaking the crime illegal recruitment in large scale constituting economicsabotage. POEA likewise certified that neither Calonzo nor

In his attempt to exculpate himself, although belatedly, Calonzo denieshaving received money from the complainants. But as against their positivetestimonies, this denial of appellant is worthless and at most self-serving.All the complaining witnesses testified that they gave their money to Calonzothrough Loreta Castañeda who in turn gave the amounts to Calonzo in theirpresence. In support thereof complainants even presented receipts issuedby the R. A. C. Business Agency with Calonzo's signature affixed thereon.Nobody corroborated Calonzo's denial. Even Loreta who could haveconfirmed such denial testified that all the amounts given by the



complainants were turned over by her to Calonzo. The attempt of thedefense at reinforcing such denial proved futile when it presented CarmeoAlix to testify that appellant owned another import-export business as it hadno relevance to his defense.

As regards the conviction of Calonzo for estafa on five (5) counts we ruled inPeople v. Turda[4] that recruitment of persons for overseas employmentwithout the necessary recruiting permit or authority from the POEAconstitutes illegal recruitment; however, where some other crimes orfelonies are committed in the process, conviction under the Labor Codedoes not preclude punishment under other statutes. In People v.

Romero[5] we said that the elements of estafa were: (a) that the accuseddefrauded another by abuse of confidence or by means of deceit, and (b)that damage or prejudice capable of pecuniary estimation is caused to theoffended party or third person. Corollarily, Art. 315 of the Revised PenalCode provides for its penalty thus -

1st. The penalty of prision correccional in its maximum period to prision

mayor in its minimum period, if the amount of the fraud is over P12,000 butdoes not exceed P22,000, and if such amount exceeds the latter sum, thepenalty provided in this paragraph shall be imposed in its maximum period,adding one year for each additional P10,000; but the total penalty whichmay be imposed shall not exceed twenty years. In such a case, and inconnection with the accessory penalties which may be imposed and for thepurpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal , as the case may be.

In the case before us, we are convinced that Calonzo defraudedcomplainants through deceit. They were obviously misled into believing thathe could provide them employment in Italy. As a result, the five (5)complainants who desperately wanted to augment their income and improvetheir lot parted with their hard-earned money. In Crim. Cases Nos. 98850,98851, 98852 and 98854 the amount defrauded of each complainant wasP120,000.00. In consonance with Art. 315 of the Revised Penal Code, theimposable penalty is prision correccional in its maximum period to prisionmayor in its minimum period the range of which is four (4) years, two (2)months and one (1) day, to five (5) years, five (5) months and ten (10)days as minimum, while the medium period is from five (5) years, five (5)months and eleven (11) days, to six (6) years, eight (8) months andtwenty (20) days, and the maximum is six (6) years, eight (8) months andtwenty-one (21) days, to eight (8) years. Since the amount of P120,000.00was defrauded in each case, the maximum penalty should betaken from the maximum period of the penalty prescribed, plus one (1)year for every P10,000.00 in excess of P22,000.00 which, in these four (4)



cases is equivalent to nine (9) additional years. Hence, the maximumimposable penalty should be fifteen (15) years, eight (8) months andtwenty-one (21) days, to seventeen (17) years of reclusion temporal prision

correccional minimum to prision correccional medium in any of its periods.Prision correccional minimum to prision correccionalprision mayor medium,

to fifteen (15) years, eight (8) months and twenty-one (21) days ofreclusion temporal medium, is properly within the range of the imposablepenalty. medium. Applying the Indeterminate Sentence Law, the minimumpenalty shall be within the range of the penalty next lower in degree to thatprescribed in the Code, i.e., medium ranges from six (6) months and one(1) day, to four (4) years and two (2) months. Clearly, the penaltyimposed by the court below in each of the aforesaid cases, which is eleven(11) years, eleven (11) months and eleven (11) days of

The same principle would apply to Crim. Case No. 98853 where the amountdefrauded was P100,000.00. The trial court therefore correctly imposed thepenalty of nine (9) years, eleven (11) months and eleven (11) days of prision mayor medium, to thirteen (13) years, eight (8) months and twenty-one (21) days of reclusion temporal minimum, which is properly within therange of the imposable penalty.

WHEREFORE, the judgment of the court a quo finding accused-appellantREYDANTE CALONZO Y AMBROSIO guilty of Illegal Recruitment in

Large Scale in Crim. Case No. 98855 (G.R. No. 115155), and of Estafa inCrim. Case No. 98850 (G.R. No. 115150), Crim. Case No. 98851 (G.R. No.115151), Crim. Case No. 98852 (G.R. No. 115152), Crim. Case No. 98853

(G.R. No. 115153) and Crim. Case No. 98854 (G.R. No. 115154) as well asthe corresponding penalties imposed by the court a quo is AFFIRMED, withcosts against accused-appellant.

In the service of the various prison terms herein imposed upon accused-appellant, the provisions of Art. 70 of the Revised Penal Code shall beobserved.

SO ORDERED.

[G.R. No. 173654-765, August 28, 2008]

PEOPLE OF THE PHILIPPINES, PETITIONERS, VS. TERESITA PUIG AND ROMEO

PORRAS, RESPONDENT.

D E C I S I O N

CHICO-NAZARIO, J.:



This is a Petition for Review under Rule 45 of the Revised Rules of Court with petitioner Peopleof the Philippines, represented by the Office of the Solicitor General, praying for the reversal ofthe Orders dated 30 January 2006 and 9 June 2006 of the Regional Trial Court (RTC) of the 6th Judicial Region, Branch 68, Dumangas, Iloilo, dismissing the 112 cases of Qualified Theft filedagainst respondents Teresita Puig and Romeo Porras, and denying petitioner's Motion for

Reconsideration, in Criminal Cases No. 05-3054 to 05-3165.

The following are the factual antecedents:

On 7 November 2005, the Iloilo Provincial Prosecutor's Office filed before Branch 68 of theRTC in Dumangas, Iloilo, 112 cases of Qualified Theft against respondents Teresita Puig (Puig)and Romeo Porras (Porras) who were the Cashier and Bookkeeper, respectively, of privatecomplainant Rural Bank of Pototan, Inc. The cases were docketed as Criminal Cases No. 05-3054 to 05-3165.

The allegations in the Informations[1] filed before the RTC were uniform and pro-forma, except

for the amounts, date and time of commission, to wit:INFORMATION

That on or about the 1st day of August, 2002, in the Municipality of Pototan, Province of Iloilo,Philippines, and within the jurisdiction of this Honorable Court, above-named [respondents],conspiring, confederating, and helping one another, with grave abuse of conf idence, being theCashier and Bookkeeper of the Rural Bank of Pototan, Inc., Pototan, Iloilo, without theknowledge and/or consent of the management of the Bank and with intent of gain, did then andthere willfully, unlawfully and feloniously take, steal and carry away the sum of FIFTEENTHOUSAND PESOS (P15,000.00), Philippine Currency, to the damage and prejudice of the said bank in the aforesaid amount.

After perusing the Informations in these cases, the trial court did not find the existence of probable cause that would have necessitated the issuance of a warrant of arrest based on thefollowing grounds:

(1) the element of `taking without the consent of the owners' was missing on the ground thatit is the depositors-clients, and not the Bank, which filed the complaint in these cases, whoare the owners of the money allegedly taken by respondents and hence, are the real parties-in-interest; and

(2) the Informations are bereft of the phrase alleging " dependence, guardianship or vigilance

between the respondents and the offended party that would have created a high

degree of confidence between them which the respondents could have abused ."

It added that allowing the 112 cases for Qualified Theft filed against the respondents to pushthrough would be violative of the right of the respondents under Section 14(2), Article III of the1987 Constitution which states that in all criminal prosecutions, the accused shall enjoy the rightto be informed of the nature and cause of the accusation against him. Following Section 6, Rule112 of the Revised Rules of Criminal Procedure, the RTC dismissed the cases on 30 January2006 and refused to issue a warrant of arrest against Puig and Porras.

A Motion for Reconsideration[2] was filed on 17 April 2006, by the petitioner.



In determining the existence of probable cause to issue a warrant of arrest, the RTC judge foundthe allegations in the Information inadequate. He ruled that the Information failed to state factsconstituting the qualifying circumstance of grave abuse of confidence and the element of takingwithout the consent of the owner, since the owner of the money is not the Bank, but the

depositors therein. He also cites People v. Koc Song,

[4]

in which this Court held:There must be allegation in the information and proof of a relation, by reason of dependence,guardianship or vigilance, between the respondents and the offended party that has created a highdegree of confidence between them, which the respondents abused. At this point, it needs stressing that the RTC Judge based his conclusion that there was no probable cause simply on the insufficiency of the allegations in the Informations concerning the

facts constitutive of the elements of the offense charged. This, therefore, makes the issue ofsufficiency of the allegations in the Informations the focal point of discussion.

Qualified Theft, as defined and punished under Article 310 of the Revised Penal Code, iscommitted as follows, viz :

ART. 310. Qualified Theft . - The crime of theft shall be punished by the penalties next higher bytwo degrees than those respectively specified in the next preceding article, if committed by adomestic servant, or with grave abuse of confi dence , or if the property stolen is motor vehicle,mail matter or large cattle or consists of coconuts taken from the premises of a plantation, fishtaken from a fishpond or fishery or if property is taken on the occasion of fire, earthquake,typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.(Emphasis supplied.)Theft, as defined in Article 308 of the Revised Penal Code, requires the physical taking ofanother's property without violence or intimidation against persons or force upon things. Theelements of the crime under this Article are:

1. Intent to gain;

2. Unlawful taking;

3. Personal property belonging to another;

4. Absence of violence or intimidation against persons or force upon things.

To fall under the crime of Qualified Theft, the following elements must concur:

1. Taking of personal property;

2. That the said property belongs to another;

3. That the said taking be done with intent to gain;

4. That it be done without the owner's consent;

5. That it be accomplished without the use of violence or intimidation against persons, norof force upon things;



6. That it be done with grave abuse of confidence.

On the sufficiency of the Information, Section 6, Rule 110 of the Rules of Court requires, interalia, that the information must state the acts or omissions complained of as constitutive of theoffense.

On the manner of how the Information should be worded, Section 9, Rule 110 of the Rules ofCourt, is enlightening:Section 9. Cause of the accusation. The acts or omissions complained of as constituting theoffense and the qualifying and aggravating circumstances must be stated in ordinary and conciselanguage and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifyingand aggravating circumstances and for the court to pronounce judgment.It is evident that the Information need not use the exact language of the statute in alleging theacts or omissions complained of as constituting the offense. The test is whether it enables a person of common understanding to know the charge against him, and the court to render

judgment properly.

[5]

The portion of the Information relevant to this discussion reads:[A]bove-named [respondents], conspiring, confederating, and helping one another, with graveabuse of conf idence, being the Cashier and Bookkeeper of the Rural Bank of Pototan, Inc.,Pototan, Iloilo, without the knowledge and/or consent of the management of the Bank x x x.It is beyond doubt that tellers, Cashiers, Bookkeepers and other employees of a Bank who comeinto possession of the monies deposited therein enjoy the confidence reposed in them by theiremployer. Banks, on the other hand, where monies are deposited, are considered the ownersthereof. This is very clear not only from the express provisions of the law, but from established jurisprudence. The relationship between banks and depositors has been held to be that of creditorand debtor. Articles 1953 and 1980 of the New Civil Code, as appropriately pointed out by petitioner, provide as follows:Article 1953. A person who receives a loan of money or any other fungible thing acquires theownership thereof, and is bound to pay to the creditor an equal amount of the same kind andquality.

Article 1980. Fixed, savings, and current deposits of money in banks and similar institutionsshall be governed by the provisions concerning loan.In a long line of cases involving Qualified Theft, this Court has firmly established the nature of possession by the Bank of the money deposits therein, and the duties being performed by itsemployees who have custody of the money or have come into possession of it. The Court hasconsistently considered the allegations in the Information that such employees acted with graveabuse of confidence, to the damage and prejudice of the Bank, without particularly referring to itas owner of the money deposits, as sufficient to make out a case of Qualified Theft. For a graphicillustration, we cite Roque v. People ,

[6] where the accused teller was convicted for QualifiedTheft based on this Information:That on or about the 16th day of November, 1989, in the municipality of Floridablanca, provinceof Pampanga, Philippines and within the jurisdiction of his Honorable Court, the above-namedaccused ASUNCION GALANG ROQUE, being then employed as teller of the Basa Air Base



Savings and Loan Association Inc. (BABSLA) with office address at Basa Air Base,Floridablanca, Pampanga, and as such was authorized and reposed with the responsibility toreceive and collect capital contributions from its member/contributors of said corporation, andhaving collected and received in her capacity as teller of the BABSLA the sum of TENTHOUSAND PESOS (P10,000.00), said accused, with intent of gain, with grave abuse of

confidence and without the knowledge and consent of said corporation , did then and therewillfully, unlawfully and feloniously take, steal and carry away the amount of P10,000.00,Philippine currency, by making it appear that a certain depositor by the name of Antonio Salazarwithdrew from his Savings Account No. 1359, when in truth and in fact said Antonio Salazar didnot withdr[a]w the said amount of P10,000.00 to the damage and prejudice of BABSLA in thetotal amount of P10,000.00, Philippine currency.In convicting the therein appellant, the Court held that:[S]ince the teller occupies a position of confidence, and the bank places money in the teller's possession due to the confidence reposed on the teller, the felony of qualified theft would becommitted.[7] Also in People v. Sison ,[8] the Branch Operations Officer was convicted of the crime of Qualified

Theft based on the Information as herein cited:That in or about and during the period compressed between January 24, 1992 and February 13,1992, both dates inclusive, in the City of Manila, Philippines, the said accused did then and therewilfully, unlawfully and feloniously, with intent of gain and without the knowledge and consentof the owner thereof, take, steal and carry away the following, to wit:

Cash money amounting to P6,000,000.00 in different denominations belonging to thePHILIPPINE COMMERCIAL INTERNATIONAL BANK (PCIBank for brevity), LunetaBranch, Manila represented by its Branch Manager, HELEN U. FARGAS, to the damage and prejudice of the said owner in the aforesaid amount of P6,000,000.00, Philippine Currency.

That in the commission of the said offense, herein accused acted with grave abuse of confidenceand unfaithfulness, he being the Branch Operation Off icer of the said complainant and as suchhe had free access to the place where the said amount of money was kept.

The judgment of conviction elaborated thus:

The crime perpetuated by appellant against his employer, the Philippine Commercial andIndustrial Bank (PCIB), is Qualified Theft. Appellant could not have committed the crime had henot been holding the position of Luneta Branch Operation Officer which gave him not only soleaccess to the bank vault xxx. The management of the PCIB reposed its trust and confidence inthe appellant as its Luneta Branch Operation Officer, and it was this trust and confidence whichhe exploited to enrich himself to the damage and prejudice of PCIB x x x.[9] From another end, People v. Locson,[10] in addition to People v. Sison , described the nature of possession by the Bank. The money in this case was in the possession of the defendant asreceiving teller of the bank, and the possession of the defendant was the possession of the Bank.The Court held therein that when the defendant, with grave abuse of confidence, removed themoney and appropriated it to his own use without the consent of the Bank, there was taking ascontemplated in the crime of Qualified Theft.[11]



Conspicuously, in all of the foregoing cases, where the Informations merely alleged the positionsof the respondents; that the crime was committed with grave abuse of confidence, with intent togain and without the knowledge and consent of the Bank, without necessarily stating the phrase being assiduously insisted upon by respondents, " of a r elati on by reason of dependence,guardianshi p or vigi lance, between the respondents and the off ended par ty that has created a

hi gh degree of conf idence between them, which respondents abused,"

[12]

and withoutemploying the word "owner" in lieu of the "Bank" were considered to have satisfied the test ofsufficiency of allegations.

As regards the respondents who were employed as Cashier and Bookkeeper of the Bank in thiscase, there is even no reason to quibble on the allegation in the Informations that they acted withgrave abuse of confidence. In fact, the Information which alleged grave abuse of confidence byaccused herein is even more precise, as this is exactly the requirement of the law in qualifyingthe crime of Theft.

In summary, the Bank acquires ownership of the money deposited by its clients; and the

employees of the Bank, who are entrusted with the possession of money of the Bank due to theconfidence reposed in them, occupy positions of confidence. The Informations, therefore,sufficiently allege all the essential elements constituting the crime of Qualified Theft.

On the theory of the defense that the DOJ is the principal party who may file the instant petition,the ruling in Mobilia Products, Inc. v. Hajime Umezawa

[13] is instructive. The Court thusenunciated:In a criminal case in which the offended party is the State, the interest of the private complainantor the offended party is limited to the civil liability arising therefrom. Hence, if a criminal case isdismissed by the trial court or if there is an acquittal, a reconsideration of the order of dismissalor acquittal may be undertaken, whenever legally feasible, insofar as the criminal aspect thereofis concerned and may be made only by the public prosecutor; or in the case of an appeal, by theState only, through the OSG. x x x.On the alleged wrong mode of appeal by petitioner, suffice it to state that the rule is well-settledthat in appeals by certiorari under Rule 45 of the Rules of Court, only errors of law may beraised,[14] and herein petitioner certainly raised a question of law.

As an aside, even if we go beyond the allegations of the Informations in these cases, a closerlook at the records of the preliminary investigation conducted will show that, indeed, probablecause exists for the indictment of herein respondents. Pursuant to Section 6, Rule 112 of theRules of Court, the judge shall issue a warrant of arrest only upon a finding of probable causeafter personally evaluating the resolution of the prosecutor and its supporting evidence. Solivenv. Makasiar ,[15] as reiterated in Al lado v. Dr iokno,

[16] explained that probable cause for the

issuance of a warrant of arrest is the existence of such facts and circumstances that would lead areasonably discreet and prudent person to believe that an offense has been committed by the person sought to be arrested.[17] The records reasonably indicate that the respondents may have,indeed, committed the offense charged.

Before closing, let it be stated that while it is truly imperative upon the fiscal or the judge, as thecase may be, to relieve the respondents from the pain of going through a trial once it is



ascertained that no probable cause exists to form a sufficient belief as to the guilt of therespondents, conversely, it is also equally imperative upon the judge to proceed with the caseupon a showing that there is a prima facie case against the respondents.

WHEREFORE, premises considered, the Petition for Review on Certiorari is hereby

GRANTED. The Orders dated 30 January 2006 and 9 June 2006 of the RTC dismissingCriminal Cases No. 05-3054 to 05-3165 are REVERSED and SET ASIDE. Let thecorresponding Warrants of Arrest issue against herein respondents TERESITA PUIG andROMEO PORRAS. The RTC Judge of Branch 68, in Dumangas, Iloilo, is directed to proceedwith the trial of Criminal Cases No. 05-3054 to 05-3165, inclusive, with reasonable dispatch. No pronouncement as to costs.

SO ORDERED.

G.R. No. 132470 April 27, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.FERNANDO SULTAN y LATO, accused-appellant.

BELLOSILLO, J.:

FERNANDO SULTAN y LATO appeals from the Decision of the trial court finding himguilty of the special complex crime of robbery with rape, sentencing him to reclusion perpetua and ordering him to return to his victim one (1) wrist watch, one (1) ring, one(1) pair of earrings, and one (1) necklace valued at P1,600.00, P850.00, P500.00, andP2,100.00, respectively, and cash of P130.00; otherwise, to pay P5,180,00 if restitutionbe no longer feasible. He was further ordered to pay P50,000.00 for moral damages. 1

The evidence for the prosecution was based principally on the testimony of complainingwitness Juditha M. Bautista. According to her, on 2 June 1997 at 9:00 o'clock in theevening she was on her way home from a visit to her cousin Cristina Mansilongan inNovaliches, Quezon City; when she passed the dark alley in her cousin's compound shewas accosted by someone, later identified as accused-appellant Fernando L. Sultan,who pointed a sharp instrument at her neck and announcing it was a "hold-up." Hegrabbed her and brought her to a house along the alley which turned out to be his.Once inside the house, he made her sit down. He offered her a drink; she refused it.Then he started divesting her of her watch, ring, earrings, and necklace the values ofwhich are now reflected in the Decision of the court a quo, and her cash of P130.00.

After taking her valuables, he started kissing her on the lips and cheeks. As if todiscourage him from making further sexual advances, she told him that she was married



with two (2) children but accused-appellant was not dissuaded from pursuing hisintentions. While pointing an ice pick at her he ordered her to undress. She acceded forfear that he would kill her as she was under constant threat. After she had completelyundressed, accused-appellant ordered her to lie down on the floor. He then kissed heragain from head down. Still she could not resist him because of fear. He went on top of

her, held her two (2) hands on the level of her head, spread her thighs and inserted hispenis into her vagina. The coital encounter lasted for ten (10) to fifteen (15) minutes. 2

After satisfying his lust, he ordered her to put on her bra and panty, tied her hands andwent out of the room to smoke. After ten (10) to fifteen (15) minutes, he came back,untied her, and once again with threat and intimidation sexually abused her. Thereafter,he tied her hands to a protruding piece of wood in the room and held her in his arms.She cried. He told her that he loved her and that he would answer for what he had doneto her. They talked until noon the following day without sleeping. 3

In her effort to release herself from his clutches she "agreed" to elope with him. Perhaps

convinced that she was going to run away with him, he allowed her to go home at noonto get her things. She was then staying with her cousin Nita del Rosario, at No. 9 Sta.Eleuteria Street, Gulod, Novaliches, Quezon City. He even accompanied her to thehighway to get a ride home. 4

When Juditha arrived home she saw her sister Antonette in the house. She was notactually residing there but went there only that day. Juditha lost no time in narrating herharrowing experience to her sister. Immediately Antonette called her brother SPO1Fernando M. Bautista who resides in Bulacan. 5 SPO1 Bautista arrived at ground 3:00 or4:00 o'clock in the afternoon and was told about what happened. 6 He then advisedJuditha to go back to the house of accused-appellant for the "planned elopement" so

that he and his two (2) companions

7

could stage an arrest.

8

On their way to the house of accused-appellant, Juditha rode in a passenger jeep withher sister Antonette and cousin Nita while her brother and his two (2) companionsfollowed them on board an XLT Van. Juditha alighted near the house of accused-appellant while her companions waited for her and accused-appellant along thehighway. When she arrived at accused-appellant's place, he was already waiting for heroutside the store nearby. They went inside his house and came out twenty (20) minuteslater. They boarded a passenger bus while SPO1 Bautista and his companions trailedthem. When the bus reached the corner of Forest Hill Subdivision, Gulod, Novaliches, itslowed down because of the traffic thus making it easier for SPO1 Bautista and hiscompanions to board the bus. Upon seeing her brother and his companions, Judithamotioned to them. They immediately approached accused-appellant and boxed himbefore they could arrest him. The other passengers of the bus joined in hitting accused-appellant. This caused a commotion in the bus. Some policemen who were in thebarangay hall across the street saw the disturbance. They boarded the bus to find outwhat happened. Then they assisted in facilitating the arrest of accused-appellant andbrought him to the barangay hall. He was later on transferred to the police headquartersfor further interrogation.



At the police station the authorities investigated Juditha who readily identified accused-appellant as her robber and rapist. The police then requested for physical examinationto find signs of sexual abuse. Medico-Legal Inspector Dr. Dennis G. Bellin found noexternal signs of violence although there was a deep fresh laceration at 5 o'clockposition in Juditha's hymen. He also discovered other lacerations, deep healed, at 3, 7

and 9 o'clock positions. Dr. Bellin also observed that Juditha's external vaginal orificeoffered moderate resistance to his examining index finger and virgin-sized vaginalspeculum. She was no longer a virgin when the alleged rape transpired. 9

On 5 June 1997 an Information 10 for the special complex crime of robbery with rapewas filed against accused-appellant Fernando Sultan y Lato, docketed as Crim. CaseNo. Q-97-71353. But accused-appellant brushed aside the charge and claimed that itwas simply a sexual congress of consenting adults.

Finding the complaining witness' version more credible, the trial court, on 5 June 1998,found accused-appellant guilty as charged and sentenced him to reclusion perpetua. He

was ordered to return to Juditha Bautista one (1) wrist watch valued at P1,600.00, one(1) ring worth P850.00, one (1) pair of earrings worth P500.00, one (1) necklace worthP2,100.00 and cash in the amount of P130.00, or the payment of P5,180.00 if returnwas not possible. Accused-appellant was further directed to pay his victim P50,000.00for moraldamages. 11

In this appeal, accused-appellant submits that there is no convincing proof that he isguilty of the crime charged.

As to the robbery, he contends that the testimony of complainant that she was robbed of

her personal valuables should not be given weight and credence as (a) no evidencewas presented in court to prove her claim and that (b) if he had really robbed her, whydid she not ask him for restitution of her valuables after the alleged threat had ceased,i .e., when there was already an agreement between them to elope?

These arguments fail to persuade us. The testimony of complainant as to the taking ofher cash and valuables is evidence enough to sustain a conviction for robberyconsidering that we find no fault in the pronouncement of the trial court that hertestimony is credible. The persuasive value of the declaration of credibility is bolsteredby our own scrutiny of the testimony of complainant showing her answers to the incisivequestions propounded to her to be firm and straightforward.

While there may have been no effort on the part of complainant to retrieve her personalbelongings from accused-appellant even after all threats had ceased, her failure to doso does not under the circumstances necessarily dispute the commission of robbery.

Article 293 of the Revised Penal Code provides that "[a]ny person who, with intent togain, shall take any personal property belonging to another, by means of violenceagainst or intimidation of person, or using force upon anything, shall be guilty ofrobbery." When accused-appellant divested complaining witness of her personal



belongings he committed the crime of robbery. All the elements necessary for itsexecution and accomplishment were present, i .e., (a) personal property belonging toanother, (b) unlawful taking, (c) intent to gain, and (d) violence or intimidation. It istherefore immaterial that she failed to ask for the return of her personal things.Moreover, her actuation could only be fairly interpreted to mean that she did not want

accused-appellant to be suspicious of her moves.

As for the charge of rape, accused-appellant maintains that the requisite force orintimidation was not proved by the prosecution beyond reasonable doubt; that there wassome form of consent to the sexual intercourse as complainant did not put up tenaciousresistance despite lack of threat on her life during the alleged rape; and, thatcomplainant on cross-examination was not certain whether accused-appellant wasarmed at the commencement of the rape.

We likewise find these contentions of accused-appellant unconvincing. The prosecutionfor rape in the instant case is based solely on the testimony of complaining witness.

Thus, the basic issue that must be addressed is her credibility. Doctrinally, the trialcourt's assessment of the credibility of witnesses is accorded the highest respect andweight by the appellate courts. It is normally sustained unless material facts andcircumstances have been overlooked, misunderstood or misapplied. 12 There is no suchshowing in this case.

Accused-appellant might not have employed force in committing the rape but hedefinitely used intimidation which was sufficient to make complainant submit herself tohim against her will for fear of life and personal safety. Accused-appellant grabbed herand dragged her to his house. He was armed with an ice pick and threatened to kill herwith it if she did not follow his wishes. She was naturally intimidated and her intimidation

started from that moment on, and subsisted in her mind when the rape was started untilits consummation. Intimidation is subjective so it must be viewed in the light of thevictim's perception and judgment at the time of the commission of the crime, and not byany hard and fast rule. It is enough that it produces fear, as in the present case, fearthat if the complainant does not yield to the bestial demands of accused-appellantsomething would happen to her at that moment or even thereafter. Thus, it is irrelevantthat she was not certain when cross-examined that accused-appellant was armed withan ice pick when the rape commenced; it was enough that he was holding somethingthat looked like an ice pick which engendered fear in her. With fear instilled in her mind,it is understandable that she did not offer any resistance since any attempt to do sowould only be futile. Such failure on her part should not be taken to mean consent so asto make her a willing participant in the sexual confrontation.

The Information charges accused-appellant with the special complex crime of robberywith rape. The record shows that the prosecution has established that he committedboth robbery and rape with the intent to take personal property of another preceding therape. Under Art. 294, par. (1), of the Revised Penal Code, ". . . [a]ny person guilty ofrobbery with the use of violence against or intimidation of persons shall suffer: 1. Thepenalty of reclusion perpetua to death, . . . when the robbery shall have been



accompanied by rape . . . ." Complaining witness Juditha Bautista was raped twice onthe occasion of the robbery. In this regard, this Court had declared in some cases thatthe additional rapes committed on the same occasion of robbery would not increase thepenalty. 1 There were also cases; however, where this Court ruled that the multiplicity of rapes committed could be appreciated

as an aggravating circumstance. 14 Finally, in the recent case of People v . Regala, 15 the Court held that the additional rapes

committed should not be appreciated as an aggravating circumstance despite a resultant "anomalous situation" wherein robbery

with rape would be on the same level as robbery with multiple rapes in terms of gravity. 16 The Court realized that there was no law

providing for the additional rape/s or homicide/s for that matter to be considered as aggravating circumstance. It further observed

that the enumeration of aggravating circumstances under Art. 14 of the Revised Penal Code is exclusive, unlike in Art. 13 of the

same Code which enumerates the mitigating circumstances where analogous circumstances may be considered, hence, the

remedy lies with the legislature. Consequently, unless and until a law is passed providing that the additional rape/s or homicide/s

may be considered aggravating, the Court must construe the penal law in favor of the offender as no person may be brought within

its terms if he is not clearly made so by the statute. Under this view, the additional rape committed by accused-appellant is not

considered an aggravating circumstance. Applying Art. 63, par. (2), of the Revised Penal Code which provides that "[i]n all cases in

which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application

thereof . . . . 2. [w]hen there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty

shall be applied," the lower penalty of reclusion perpetua should be imposed on accused-appellant.

As to the award of damages to the complaining witness, an additional amount of P50,000.00 may be given as damages ex delicto in

line with recent jurisprudence. 17

WHEREFORE, the Decision of the court a quo finding accused-appellant FERNANDO SULTAN Y LATO GUILTY of the special

complex crime of robbery with rape and sentencing him to reclusion perpetua, to pay Juditha M. Bautista P50,000.00 for moral

damages, P5,180.00 for actual damages representing the value of the personal properties plus the cash amount of P130.00 taken

from her is AFFIRMED with the MODIFICATION that the amount of P50,000.00 be added as civil indemnity in conformity with

prevailing jurisprudence. Costs against accused-appellant.

SO

G.R. No. 129970 April 5, 2000 PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.EDUARDO PAVILLARE y VARONA and SOTERO SANTOS y CRUZ, accused,EDUARDO PAVILLARE y VARONA, accused-appellant.

PER CURIAM:

Before us is an appeal from the decision of the Regional Trial Court of Quezon City,Branch 219 in Criminal Case no. Q96-65214 entitled People vs. Eduardo Pavillare yVarona, a prosecution for kidnapping for ransom.

On March 14, 1996 the accused-appellant and his co-accused were criminally chargedas follows:

INFORMATION



to the private complainant to prove that he is indeed in their custody. The kidnappersalso told Lakhvir that his cousin, Sukhjinder, raped their companion and threatened thatunless Lakhvir pays one hundred thousand pesos for Sukhjinder's release "tutuluyannamin ito". Lakhvir told the kidnappers he does not have that much money and aftersome haggling the kidnappers settled for twenty five thousand pesos. 3 The kidnappers

also gave instructions to deliver the money outside the Aurora Boulevard branch of theLand Bank near the old Arcega's movie house. Lakhvir stated in court that he did asinstructed. When he and another relative reached the designated place three menapproached him and one of them, whom he identified in court as the accused-appellantherein, asked him "Ano dala mo ang pera?" Lakhvir said "yes" but he refused to give themoney until he saw his cousin. One of the kidnappers told him to follow them and theyproceeded to a mini-grocery nearby. A few minutes later one of the kidnappers camewith his cousin. Lakhvir handed the money to the accused-appellant who counted itbefore leaving with his companions. 4

SPO1 Eduardo Frias testified for the prosecution that he was the police officer who took

the sworn statement of the private complainant on February 14, 1996 pertaining to theFebruary 12, 1996 incident. 5 When the accused-appellant was apprehended inconnection with another case involving the kidnapping of another Indian national theprivate complainant herein again showed up at the police station on March 11, 1996and identified the accused-appellant as one of his kidnappers. Another sworn statementwas executed by the private complainant after he identified the accused-appellant at thepolice station. 6

For the defense, the accused-appellant testified that on the whole day of February 12,1996, the alleged date of the incident, he was at the job site in Novaliches where he hadcontracted to build the house of a client and that he could not have been anywhere near

Roces Avenue at the time the complainant was allegedly kidnapped.

7

One of hisemployees, an electrician, testified that the accused-appellant was indeed at the job sitein Novaliches the whole day of February 12, 1996. 8

On July 15, 1997 the trial court rendered judgment as follows:

WHEREFORE, finding EDUARDO PAVILLARE guilty beyond reasonable doubt of havingcommitted the crime of kidnapping for the purpose of ransom, the Court herebysentences him to suffer the penalty of Death; to indemnify the private complainant in theamount of P20,000.00, as actual damages, with interest at 6% percent per annum fromFebruary 12, 1996; to pay him the amount of P50,000.00 as moral damages; and to paythe costs.

The Branch clerk of Court is hereby directed to immediately transmit the entire records ofthe case to the Supreme Court for automatic review.

9

This case is before us on automatic review.

The accused-appellant Pavillare prays for an acquittal based on reasonable doubt. OnMarch 10, 1996 the accused-appellant was apprehended in connection with thekidnapping of another Indian national. While under police custody the appellant was



required to stand in a police line-up where he was supposedly identified by the privatecomplainant as one of his abductors. Five separate charges arising from five separateincidents of kidnapping, all of whom were Indian nationals, were filed against him. Heclaims that he was identified by the private complainant as one of his abductorsbecause the Indians needed a "scapegoat" for the other four cases of kidnapping of

Indian nationals then pending.

The appellant argues that the private complainant could not identify his captors byhimself which is shown by the inconsistencies in his testimony and by the impropersuggestion made by the investigating police officer pointing to the accused-appellant asone of the malefactors. In court the private complainant stated that he described hisabductors to the police investigator while the latter typed his sworn statement. He saidthat two of the abductors look like policemen, the third one was "tall, a little bit aged"and the other one was the driver. Their female companion was pretty. Pavillare pointsout however, that the sworn statement given by the private complainant does notcontain a physical description of the kidnappers and that SPO1 Frias, who took the

complainant's statement, testified in court that the complainant described one of hisabductors as short, bejeweled and with a pock marked face. The different descriptionsallegedly given by the private complainant and the absence of a physical description ofthe kidnappers in his sworn statement supports the accused-appellant's contention thatthe complainant could not describe his abductors. Pavillare contends that his arrest inconnection with a different case for the kidnapping of another Indian national providedthe complainant an improper suggestion that he was indeed one of the culprits in thiscase. The appellant claims that SPO1 Frias pointed to him and conversed with theprivate complainant before the latter was asked to identify the kidnappers. The timeinterval from the date of the incident on February 12, 1996 up to the day the accused-appellant was identified at the police line-up on March 11, 1996 further weakened thecomplainant's vague recognition of the culprits. Pavillare finally argues that he shouldnot have been convicted of kidnapping for ransom but only of simple robbery as it isborne by the undisputed facts that the offenders were motivated by an intent to gain andnot to deprive the complainant of his liberty. The money demanded by the offenderswas not ransom money but one in the nature of a bribe to drop the accusation for rapeof their lady companion.

The Solicitor-General filed brief praying for the affirmance in toto of the appealeddecision. The appellee contends that in court the private complainant unhesitatingly andconsistently identified the accused-appellant Pavillare as one of the kidnappers.Throughout his narration of the incident in court the complainant referred to Pavillare asone of the kidnappers because he was the one who made the phone call and the onewho received the ransom money. The complainant had more than adequate opportunityto observe his abductors and he testified in court that Pavillare is one of them. As a signof the complainant's candor, he admitted in court that he does not recognize the otherco-accused, Sotero Santos, as one of his abductors and for which reason the case wasdismissed against him. The complainant's failure to state an accurate description of thekidnappers in his sworn statement does not belie his identification of Pavillare in courtas it is the general rule that affidavits are often inaccurate and incomplete. The



argument of the accused-appellant that his identification in the police line-up was madewith improper motive either from the other Indian nationals who were at the policestation or from SPO1 Frias is without evidentiary basis. Moreover, the complainant'stestimony is corroborated by the testimony of his cousin who met the kidnappers andhanded over the ransom money to them. The trial court did not err in giving credence to

the complainant's identification of Pavillare as one of the abductors.

The Solicitor-General further contends that the accused-appellant's alibi that he inNovaliches when the crime was committed cannot stand against the positiveidentification of two witnesses and that his alibi does not make it physically impossiblefor him to be at the crime scene at the time it happened. As regards accused-appellant'splea to be convicted instead of simple robbery is without legal nor factual basis. Thecomplainant was restrained of his liberty even if only for a few hours and his captorsdemanded money for his release which in fact they did after the ransom money waspaid. Whether or not the kidnappers only wanted money from the complainant themanner by which they compelled him to give money, i .e. by restraining his liberty until

the ransom money was paid, constitutes kidnapping for ransom. Finally, the submissionthat the offenders demanded a bribe and not ransom money is likewise unfounded.There is no evidence that any one of the kidnappers was a public officer in theperformance of his duties when they demanded money from the complainant inexchange for his liberty.

Accused-appellant Pavillare filed Reply brief to reiterate his contention that theprosecution did not controvert his testimony to the effect that the complainant could notrecognize his abductors and that it was SPO1 Frias who pinpointed him to the privatecomplainant as one of the malefactors. Pavillare cites the complainant's failure toidentify his own relative who met him at the police station after the arrest of the

accused-appellant and argues that considering that the complainant was held captiveonly for about two hours and the interval of almost one month from the day of theincident up to the time the accused-appellant was identified at the police line-up, thecomplainant was deprived of any reliable recollection of his captors. The complainant'sfailure to give a physical description of the abductors when he gave a sworn statementto the police two days after the incident supports the accused-appellant's contention thatthe complainant could not identify his captors. It is also claimed that the improperidentification of the accused-appellant at the police line-up without the assistance ofcounsel renders the said identification, including that made in court, inadmissible inevidence.

The appeal is without merit.

The accused-appellant's defense that the identification made by the private complainantin the police line-up is inadmissible because the appellant stood at the line-up withoutthe assistance of counsel is without merit.

Sec. 12 (1) Art III of the Constitution states that "Any person under investigation for thecommission of an offense shall have the right to remain silent and to have competent



and independent counsel preferably of his own choice. If the person cannot afford theservices of counsel, he must be provided with one. These rights cannot be waivedexcept in writing and in the presence of counsel." Thus the prohibition for custodialinvestigation conducted without the assistance of counsel. Any evidence obtained inviolation of the constitutional mandate is inadmissible in evidence. 10 The prohibition

however, does not extend to a person in a police line-up because that stage of aninvestigation is not yet a part of custodial investigation. 11 It has been repeatedly heldthat custodial investigation commences when a person is taken into custody and issingled out as a suspect in the commission of the crime under investigation and thepolice officers begin to ask questions on the suspect's participation therein and whichtend to elicit an admission. 12 The stage of an investigation wherein a person is asked tostand in a police line-up has been held to be outside the mantle of protection of the rightto counsel because it involves a general inquiry into an unsolved crime and is purelyinvestigatory in nature. 13 It has also been held that an uncounseled identification at thepolice line-up does not preclude the admissibility of an in-court identification. 14 Theidentification made by the private complainant in the police line-up pointing to Pavillare

as one of his abductors is admissible in evidence although the accused-appellant wasnot assisted by counsel. In court, the private complainant positively identified Paviallareas one of his captors and testified as follows:

Q: Were you able to recognize the faces of the men and woman whoabducted you on the afternoon of February 12, 1996?

A: Yes, sir I can recognize if I see them again.

Q: If you see them in court will you be able to identify them?

A: Yes, sir.

Q: Please point to them if the accused are inside the court room?

A: That man, sir.

INTERPRETER:

Witness pointing at a man seated inside the court room and when askedto identify himself he gave his name as Eduardo Pavillare.

ATTY. CRUZ:

Q: Other than the accused Pavillare, do you recognize anybody else inthis court room if among those who abducted you in the afternoon ofFebruary 12, 1996?

A: None, sir.

Q: Tell us how were you abducted by the accused Pavillare and hiscompanions in that particular date in the afternoon of February 12, 1996?



Q: Incidentally, can you tell us who among your abductors who actuallytalked to Lakvir over the telephone?

A: He is the one, sir.

INTERPRETER:

Again, witness is referring to accused earlier identified as Pavillare.

ATTY. CRUZ:

Q: Why do you know that it was the accused Pavillare who was talking toLakhvir over the telephone?

A: Because I was near him and I saw him talking to Lakhvir, sir.

xxx xxx xxx

ATTY. CRUZ:

Q: Where did the two of you go?

A: Inside the mini-grocery, sir.

Q: After you went inside this mini-grocery, what happened next, if any?

A: I saw my cousin Lakhvir. He asked me if I am okey and I told him thatthey bit me up but I am still fine, sir.

Q: After you told your cousin that you are okey except for the beating

that you got but you are fine, what transpired next, if any? A: Lakhvir gave the P20,000.00, sir.

ATTY. CRUZ:

Q: To whom did Lakhvir handed the P20,000.00?

A: To him sir.

INTERPRETER:

Witness pointed to the accused Pavillare earlier identified. ATTY. CRUZ:

Q: Why do you know that only P20,000.00 was handed over by accusedPavillare?

A: Because they counted the money and they complained about it, sir.



Q: Who counted the money?

A: He was the one who counted the money, sir.

INTERPRETER:

Witness pointing to accused Pavillare earlier identified.

ATTY. CRUZ:

Q: Were you present when Pavillare counted the money?

A: Yes, sir.

Q: After Pavillare got the P20,000.00, what happened next, if any?

A: They left immediately and they left me too, and we went to get mymotorcycle, sir.

15

On cross-examination the complainant stood firm on his identification of the accused-appellant as one of the abductors. He testified:

ATTY. MALLABO:

Q: You said that at approximately 12:00 o'clock noon of February 12,1996 while you are going back to your motorcycle you were blocked byfour persons, is that correct?

ATTY. CRUZ:

Misleading, he said 3 persons, your Honor.

COURT:

Reform.

ATTY. MALLABO:

Q: You were blocked by 3 persons, is that correct?

A: Yes, sir.

Q: Who was the person immediately in front of you when you wereblocked?

A: He was the one, sir.

INTERPRETER:

Witness pointing to accused Eduardo Pavillare which was earlieridentified.



ATTY. MALLABO:

Q: What about the two (2) other persons?

WITNESS:

A: They were behind me, sir.

ATTY. MALLABO:

Q: What was the distance if you can tell us?

A: Almost together and then when they asked me my name I replied andthey hold my arms, sir.

Q: Who hold your arms?

A: He was the first, sir.

INTERPRETER:

Witness pointed to accused Eduardo Pavillare which was identifiedearlier.

xxx xxx xxx

ATTY. MALLABO:

Q: You said that there were 5 persons who abducted you?

A: Yes, sir. 4 male and one female.

Q: On March 11, 1996 your cousin informed you or your friend informedyou that there were persons apprehended because also of kidnappingincident?

A: Yes, sir. There were 4 of them arrested and when I went to see them Ionly recognized one of them, sir.

ATTY. MALLABO:

Q: Who was that person?

A: He is the one, sir.

INTERPRETER:

Witness pointing to accused Eduardo Pavillare.

ATTY. MALLABO:



That would be all for the witness, your Honor.

COURT:

Any redirect?

ATTY. CRUZ:

Few redirect, your Honor.

ATTY. CRUZ:

Q: Mr. Witness, before you went to the police station on March 11, 1996you were aware of how many suspects were in custody of kidnapping ofGormel, is it not?

A: Yes, sir they were 4 of them.

Q: You were aware that 4 persons were arrested for the kidnapping ofyour friend Gormel?

A: Yes, sir.

Q: These 4 people were shown to you, were they not?

A: Yes, sir.

ATTY. CRUZ:

Q: But when you were asked to identify who among them were involved

in your kidnapping you only pointed one of them? A: Yes, sir.

Q: You did not point to the other accused?

A: No, sir.

Q: The only one whom you pointed as being involved in your kidnappingwas none other than the person of the accused Pavillare?

A: Yes, sir.16

Moreover, the complainant's cousin Lakhvir Singh who met the kidnappers to pay theransom money corroborated the complainant's identification of the accused-appellantPavillare. Lakhvir Singh testified as follows:

Q: After reaching the designated area somewhere along AuroraBoulevard, what happened next, if any?



A: As we parked our motorcycle near Land Bank, the kidnappersimmediately approached us, sir.

Q: How many kidnappers approached you?

A: Three (3) of them, sir.

ATTY. CRUZ:

Q: How were you able to know that they are the kidnappers?

A: Because when they approached us one of them said: "Ano dala moand pera?"

Q: Tell us, were you able to recognize the faces of these three personswho approached you and demanded to you whether you brought themoney?

A: Yes, sir. Q: If you see anyone inside the courtroom, please point to him.

INTERPRETER:

Witness pointing at a man sitting inside the courtroom and when askedto identify himself, he gave his name as EDUARDO PAVILLARE.

ATTY. CRUZ:

Q: After Pavillare demanded to you whether you brought with you themoney, what did you do next, if any?

A: I told them "I have the money with me but I would not hand the moneyto you until I see Sukhjinder Singh."

Q: What was the response of the accused Pavillare after you told himthat Sukhjinder Singh be first shown to you before you turn over themoney?

A: One of them told us to follow him and they would bring SukhjinderSingh, sir.

Q: From that place, where did you go if you can still recall?

A: We proceeded to a small grocery store near Land Bank, sir.

Q: After going inside this grocery store near Land Bank, tell us whathappened next, if any?

A: After a few minutes, one of the kidnappers arrived together withSukhjinder Singh, sir.



ATTY. CRUZ:

Q: After you saw Sukhjinder Singh together with one of his kidnappers,what did you do next, if any?

A: I immediately approached Sukhjinder Singh and I asked him if he was

hurt by the kidnappers and he said "yes but I am now okey."

Q: After Sukhjinder confirmed to you that he was previously beaten andthat he was already okey at that time, what did you do next, if any?

WITNESS:

A: After that, one of the kidnappers said: "Andiyan na ang tao ninyoibinigay mo sa akin ang pera".

ATTY. CRUZ:

Q: Who among the kidnappers who said that? A: That person, sir.

INTERPRETER:

Witness pointing to the accused earlier identified as Eduardo Pavillare.

ATTY. CRUZ:

Q: After Pavillare demanded that you turn-over to him the money, whatdid you do next, if any?

A: I gave him the money, sir.

Q: When you said "him", to whom are you referring to?

A: To him, sir.

INTERPRETER:

Witness pointing to accused earlier identified as Eduardo Pavillare.

ATTY. CRUZ:

If you recall, how many money all in all did you give to Eduardo Pavillarethat afternoon of February 12, 1996?

A: P20,000.00, sir.17

xxx xxx xxx



We find that the trial court did not err in giving due weight and credence to theidentification in open court of the accused-appellant by the private complainant and hiscousin as one of the kidnappers. Both witnesses had ample opportunity to observe thekidnappers and to remember their faces. The complainant had close contact with thekidnappers when he was abducted and beaten up, and later when the kidnappers

haggled on the amount of the ransom money. His cousin met Pavillare face to face andactually dealt with him when he paid the ransom money. The two-hour period that thecomplainant was in close contact with his abductors was sufficient for him to have arecollection of their physical appearance. Complainant admitted in court that he wouldrecognize his abductors if he sees them again and upon seeing Pavillare heimmediately recognized him as one of the malefactors as he remembers him as the onewho blocked his way, beat him up, haggled with the complainant's cousin and receivedthe ransom money. As an indicium of candor the private complainant admitted that hedoes not recognize the co-accused, Sotero Santos for which reason the case wasdismissed against him. It bears repeating that the finding of the trial court as to thecredibility of witnesses is given utmost respect and as a rule will not be disturbed on

appeal because it had the opportunity to closely observe the demeanor of the witness incourt.

As regards the alibi forwarded by the appellant, we find that the positive identificationmade by two eyewitnesses for the prosecution pointing to the appellant as one of thekidnappers prevails over it. The appellant's employee who testified to corroborate hisalibi only stated that in the month of February 1996 the accused-appellant was at theNovaliches job site everyday. 18 The trial court properly took judicial notice that it willtake only a few hours drive from Novaliches, where the accused-appellant claimed to beon the day of the incident, to Roces Ave., in Quezon City, where the complainant waskidnapped. 19 Absent any competent proof that Pavillare could not have been at thescene of the crime at the time and day it was committed, the trial court correctly deniedweight and credence to the appellant's alibi.

Pavillare's argument that the complainant could not have identified his abductors were itnot for the improper suggestion made by the police investigator is based on the bareand uncorroborated allegation of the accused-appellant himself. The police investigatorwas not confronted with this accusation 20 and the defense did not present any evidenceto support it. It is on record that when Pavillare's counsel made an attempt to questionthe police investigator, SPO1 Frias, on a matter not covered by the direct examination,i .e., where SPO1 Frias recorded the physical description given by the complainant of hisabductors, the trial court suggested that the defense may later call SPO1 Frias to thestand as a defense witness apparently to give the defense a chance to prove itsallegation that the complainant did not give any physical description of his abductorsand that the identification at the police line-up is tainted with an improper suggestion. 21 The defense counsel never called SPO1 Frias to the stand. The appellant must provethe veracity of his own defense 22 and the prosecution could not controvert what was notpresented in evidence. In the same vein, the defense did not present any competentproof that Pavillare was identified by the complainant only as a scapegoat for the fourother kidnapping cases committed against other Indian nationals.



The cited variance between the complainant's testimony in court and his affidavit onwhether or not the complainant gave a physical description of his abductors before thepolice investigator pertains to a minor detail. Both the complainant and policeinvestigator SPO1 Frias testified that the former gave a physical description of theabductors to the police. The complainant testified that he gave the physical description

of the kidnappers while the police typed his affidavit but no such physical description ofthe kidnappers is stated in the affidavit. On the other hand, the police investigatortestified that the said description was entered in the police logbook. The defense neverrequired SPO1 Frias to produce the logbook in court to ascertain whether such adescription was given during the investigation. As a rule, variance between the privatecomplainant's affidavit and his testimony in court, as long as it does not deviate from thenature of the crime as stated in the Information, does not weaken the credibility of thetestimony in court. 23

Finally, the accused-appellant's argument that he should have been convicted of simplerobbery and not kidnapping with ransom because the evidence proves that the prime

motive of the accused-appellant and his companions is to obtain money and that thecomplainant was detained only for two hours, are both unmeritorious. Art. 267 of theRevised Penal Code states:

Art. 267. Kidnapping and serious illegal detention. — any private individual who shallkidnap or detain another, or in any other manner deprive him of liberty, shall suffer thepenalty of reclusion perpetua to death;

1. If the kidnapping or detention shall have lasted morethan three days.

2 If it shall have been committed simulating publicauthority.

3. If any serious physical injuries shall have beeninflicted upon the person kidnapped or detained; or ifthreats to kill him shall have been made.

4. If the person kidnapped or detained shall be a minor,except when the accused is any of the parents, femaleor a public officer.

The penalty shall be death where the kidnapping or detention was committed for thepurpose of extorting ransom from the victim or any other person, even if none of thecircumstances above mentioned were present in the commission of the offense.

When the victim is killed or dies as a consequence of the detention or is raped, or is thesubjected to torture or dehumanizing acts, the maximum penalty shall be imposed.

24

The testimonies of both the private complainant and his cousin are replete with positivedeclarations that the accused-appellant and his companions demanded money for thecomplainant's release. The pretense that the money was supposedly in exchange forthe dropping of the charges for rape is not supported by the evidence. The



complainant's cousin testified that at the agreed drop-off point Pavillare demanded theransom money and stated, "Andiyan na ang tao ninyo ibigay mo sa akin ang pera". Theaccused-appellant released the complainant when the money was handed over to himand after counting the money Pavillare and his companions immediately left the scene.This clearly indicated that the payment of the ransom money is in exchange for the

liberty of the private complainant. The death penalty was properly imposed by the trialcourt. 25

The duration of the detention even if only for a few hours does not alter the nature of thecrime committed. The crime of kidnapping is committed by depriving the victim of libertywhether he is placed in an enclosure or simply restrained from going home. 26 Assquarely expressed in Article 267, above-quoted the penalty of death is imposablewhere the detention is committed for the purpose of extorting ransom, and the durationof the detention is not material.

Four Members of the court maintain their position that RA 7659 is unconstitutional

insofar as it prescribes the death penalty. Nonetheless they submit to the ruling of themajority of this Court i .e., that the law is constitutional and the death penalty should beimposed in this case.

WHEREFORE, the decision of the Regional Trial Court of Quezon City in Criminal CaseNo. Q96-65214 finding the accused-appellant Eduardo Pavillare y Varona guilty ofkidnapping for ransom and imposing the DEATH penalty and the awards for actual andmoral damages is AFFIRMED in toto.

SO ORDERED.1âwphi1.nêt

G.R. No. 171653 April 24, 2007 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,vs.JUDITH JATULAN y PONCE, Accused-Appellant.

D E C I S I O N

GARCIA, J.:

Under mandatory review is the decision1 dated 16 December 2005 of the Court of Appeals (CA)

in CA-G.R. CR-H.C. No. 01596, affirming an earlier decision of the Regional Trial Court (RTC)of Antipolo City which found herein appellant JUDITH JATULAN y PONCE @ "Lito"GUILTY beyond reasonable doubt of the crime of KIDNAPPING for RANSOM and sentencedhim to the extreme penalty of death by lethal injection.

On 20 February 1995, in the RTC of Antipolo City, an Information2 for KIDNAPPING forRANSOM under Article 267 of the Revised Penal Code was filed against herein appellantJUDITH JATULAN y PONCE @ "Lito" and three others, namely: Paul Liporada y Honorio,

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Meil Liporada y Honorio and Gilbert Denyega y Musico. Docketed in the same court as CriminalCase No. 95-11947 and raffled to Branch 73 thereof, the Information alleged:

That at about 12:30 in the afternoon of 13 February, 1995 at Teremil Subdivision, Mambugan,Antipolo, Rizal and within the jurisdiction of this Honorable Court, the above-named accused,

together with some other persons whose liabilities are still being determined in a preliminaryinvestigation, conspiring, confederating and mutually helping one another, did then and there,willfully, unlawfully and feloniously take, carry away and kidnap KARWIN AMADO, a minor being only five (5) years old, against his will and without the knowledge and consent of his parents, and thereafter brought him to a safehouse in a mountainous area at Sitio Tagisan,Mayamot, Antipolo Rizal where he was kept, detained and deprived of his liberty for the purposeof extorting ransom in the amount of TWO HUNDRED FIFTY THOUSANDPESOS(P250,000.00) for his release.

CONTRARY TO LAW.

Arraigned on 21 March 1995, all four accused, assisted by their counsel de oficio with the threeminor co-accused further assisted by their respective parents, entered a plea of "NOT GUILTY"to the offense charged against them. In time, trial ensued in the course of which the prosecution presented in evidence the oral testimonies of its witnesses, to wit: the victim himself, KarwinAmado, admittedly only about five (5) years old at the time of the incident; his mother, TeresitaAmado; his sister, Karen Amado; and Inspector Jose Molave Dueñas, deputy chief of policeintelligence of Task Force Habagat, and elements of the Presidential Anti-Crime Commission(PACC) who all testified on matters relating to their investigation of the case and the operationsthey conducted to rescue the kidnapped victim.

For its part, the defense offered in evidence the oral testimony of appellant himself and those of

his three (3) minor co-accused, all three of whom denied any knowledge as to appellant‘s plan tokidnap Karwin and who substantially declared that they were tricked by appellant into performing several tasks for the latter in connection with the kidnapping of Karwin and thesubsequent demand for ransom.

In a decision3 dated 3 September 2002, the trial court found appellant GUILTY beyondreasonable doubt of the offense charged in the Information and meted upon him the extreme penalty of death by lethal injection but ACQUITTED the three (3) minor co-accused forinsufficiency of evidence against them. We quote the fallo of the decision:

WHEREFORE, in view of the foregoing considerations, accused Judith Jatulan is hereby foundguilty beyond reasonable doubt for kidnapping Karwin Amado for the purpose of extortingransom from the latter‘s family. Judith Jatulan is hereby sentenced to the extreme penalty of

death by lethal injection and to pay the costs of the proceedings.

For insufficiency of evidence Paul Liporada y Honorio, Meil Liporada y Honorio and GlenbertDenyega y Musico are hereby ACQUITTED.

SO ORDERED.






From the trial court, the case went directly to this Court for automatic review. The parties werethen required by the Court to file, as they did file, their respective appellant‘s and appellee‘s

brief. A reply brief was also filed by appellant.

Thereafter, and consistent with this Court‘s decision in People v. Efren Mateo y Garcia4 which

modified the provisions of the Revised Rules on Criminal Procedure insofar as they provide forautomatic direct appeals from the RTC to this Court in cases where the penalty imposed is deathor reclusion perpetua or life imprisonment, the case, including its entire records and the briefsearlier filed by the parties, was transferred to the CA for appropriate action and disposition.Thereat, the appeal was docketed as CA-G.R. CR-H.C. No. 01595.

In a decision5 dated 16 December 2005, the CA dismissed the appeal and affirmed the judgmentof conviction rendered against appellant, thus:

WHEREFORE, premises considered, the present appeal is hereby DISMISSED, for lack ofmerit. The appealed decision dated September 3, 2002 of the court a quo finding the accused

guilty beyond reasonable doubt of the crime of kidnapping for ransom under Art. 267 of theRevised Penal Code, as amended by R.A. No. 7659, and sentencing accused-appellant JUDITHJATULAN y PONCE to death by lethal injection is hereby AFFIRMED and UPHELD.

With costs against the accused-appellant.

Pursuant to Section 13, Rule 124 (A.M. No. 00-5-03-SC in re: Amendment to the Revised Rulesof Criminal Procedure to Govern Death Penalty Cases), let the entire records of the case beforwarded to the Honorable Supreme Court for review.

SO ORDERED.

In its Resolution of 24 March 2004, the Court accepted the case after undergoing an intermediatereview by the CA, and required the parties to file their respective supplemental briefs if they sodesire. In its subsequent Resolution of 20 June 2006, the Court noted the parties‘ separate

manifestations that they are no longer filing any supplemental brief because all the argumentsthey intend to raise before the Court have been thoroughly discussed in their respective briefs before the CA.

Based on the evidence adduced by the prosecution, the CA found the following facts to have been duly established:

In the early afternoon of February 13, 1995, infront of their house at Teremil Subdivision,Mambugan, Antipolo, Rizal, Karwin Amado who was then only five (5) years old, wasapproached by accused Judith "Lito" Jatulan. Lito told the child he will give him a "shaider" toy but they have to go to the mountain to get it. The child then went with Lito. At about five (5)o‘clock in the afternoon, Karwin‘s mother, Teresita Amado arrived from work and failing to find

Karwin inside the house, asked the boy‘s playmates who told her they did not play with Karwin.

She then inquired from their neighbors who informed her that they did not see Karwin the whole










afternoon. They looked for Karwin until dark but still did not find him. At about eight (8)o‘clock in the evening, she reported the matter to the police authorities.

The following morning, February 14, 1995, the family of Karwin received a sealed envelopewith a ransom note inside, which was left at their gate and reads as follows:

Bago ang lahat ay binabati kita ng Happy B-day. Ang iyong anak ay nasa mabuting kalagayan athindi sya maaano kung susundin nyo and aming kagustuhan, magpadala kayo ng salapi P250,000thousand para sa kabayaran ng inyong anak na bunso. [A]ng maghahatid ng Pera ay and inyonganak na babae at ihahatid nya sa tapat ng paaralan ng mayamot ELEM. School sa dyip na siradadalhin ang salapi sa araw ng merkules alas 3:00 ng hapon. [L]agi nyong tatandaan walangmakakaalam na mga pulis o kung sino man kung hindi alam nyo na ang mangyayari lalung-lalona kung hindi makararating ang taong binigyan nyo ng pera sa takdang oras.

(A SKETCH OF THE SPOT WHERE PAY-OFF WILL TAKE PLACE)

Ang inyong anak ay maluwalhating makakauwi sa inyo pag nasa amin na ang salapi magingtapat lamang kayo at ganyan din naman kami.

Hindi mapapahamak ang anak [ninyo] kung tutupad kayo sa ating kasunduan.

Because she had no money for ransom, Karwin‘s mother sought help from the Presidential Anti-Crime Commission (PACC). The Task Force Habagat of the PACC immediately orderedsurveillance, investigation and operation using boodle money for the scheduled pay-off thefollowing day.

On February 15, 1995, at around 2:15 in the afternoon, Karen Amado, Karwin‘s 16 year-old

sister, proceeded to the designated place infront of Mayamot Elementary School. She wascarrying the ransom (boodle) money inside a black attaché case. Shortly thereafter, three (3) boys, later identified as co-accused Paul Liporada, Glenbert Denyega and Meil Liporada, arrived.Paul asked her if she was waiting for someone and she said she was just waiting for a jeepney.Paul and Glenbert went to accused Jatulan, who was hiding in a nearby alley, while Meil was leftto watch on the girl. When they returned to the jeep, they showed her a paper on which waswritten "Karwin Amado". Karen told them she would not give them the money until they haveher brother. Again, the two (2) went to the alley and upon returning told Karen that Karwin willgo home at La Colina (Subdivision) the following morning. The two (2) taller boys (Paul andGlenbert) kept going back to the alley while the smallest boy (Meil) guarded Karen. When it wasalready three (3) o‘clock, Karen gave them the attaché case. As the boys were walking towardsthe alley carrying the attaché case, PACC agents and policemen who were monitoring the pay-off at a distance, suddenly appeared. Paul and Glenbert were arrested while accused Lito andMeil ran away. Meil was apprehended later by policemen at his house at around six (6) o‘clockin the evening. The three (3) boys were brought to PACC and being minors, they were detainedfirst at Camp Crame in Quezon City for three (3) months and thereafter at the National TrainingSchool for Boys (Boy‘s Town).



On February 16, 1995, after a follow-up operation by the PACC Task Force Habagat, Jatulanwas arrested in an old nipa hut in a mountainous area at Cogeo, Antipolo, Rizal, where they alsorescued the kidnapped child, Karwin. The alleged mastermind, a certain Benjamin Ponce, Jr.,alias "Onyok", a cousin of Jatulan, remained at large.6

On the other hand, the defense has its own account of the incident. We quote from no less his brief 7 appellant‘s version of what supposedly transpired:

Accused-appellant JUDITH JATULAN, on the other hand, testified that on 15 February 1995 atabout 3:00 o‘clock p.m., the three (3) other accused who were accompanied by PACC men went

to his house to look for his counsel Benjamin Ponce, Jr. alias "Onyok." That was the first time hemet the three (3) other accused. A certain Insp. Dueñas requested him to accompany them to the place where Onyok was hiding. So they proceeded first to Onyok‘s uncle in Kamias, then they

went back to Mrs. Amado‘s residence. They continued to look for Onyok until he remembered

the place where Onyok used to stay in Mayamot, Antipolo, Rizal. They went to the place andfound the child alone. The boy was made to sit on his lap and a picture was taken of them.

Contrary to Mrs. Amado‘s claim, no arrest was made in the said place. He was brought to CampCrame so that his statement could be taken. But in Camp Crame, no statement was taken fromhim. Instead, the attaché case was brought out, opened, and placed in front of a certain colonel.Without any question, they asked him to point his finger to said attaché case. He was forced todo it because somebody was punching his side. The people around during that time were thechildren, Mrs. Amado, Commissioner Fajardo, and others. Some were armed with .45 caliberfirearms and armalites while he was all alone and not even assisted by a lawyer when he wasinvestigated.

As he did in the CA, appellant presently maintains that the prosecution failed to muster therequired proof beyond reasonable doubt to justify his conviction for the offense charged. He

submits that there was no deprivation of liberty on the part of Karwin, insisting that the lattervoluntarily went with a certain "Onyok" to get the promised "Shaider" toy and that during the period that Karwin was with him (appellant) at the hut where he was eventually rescued, the boy"could do as he wished," including escaping, but did not.

The appeal must fail.

Article 267 of the Revised Penal Code, as amended by Republic Act No. 7659,8 defines thecrime of kidnapping, viz:

ART. 267. Kidnapping and serious illegal detention.--Any private individual who shall kidnap ordetain another, or in any other manner deprive him of liberty, shall suffer the penalty of reclusion perpetua to death:

1. If the kidnapping or detention shall have lasted more than three days.

2. If it shall have been committed simulating public authority.















A: Yes, sir.

Q: Please look around in this courtroom and point to him if he is around.

A: The one in yellow. (Witness pointing to a person who identified himself as Judith Jatulan).

Q: How did you know this Lito Jatulan?

A: He was introduced to me by my playmates.

Q: Where is that?

A: At the chapel.

Q: Do you know the livelihood of this Lito?

A: He is writing.

Q: Have you seen Lito Jatulan near your house?

A: Yes, sir.

Q: What does he do there?

A: He is trimming the grasses. He trims the grass near the chapel.

Q: Do you remember having seen Lito Jatulan some months ago, specifically in the month of

February?

A: Yes, sir.

Q: This Lito Jatulan talked to you?

A: Yes, sir.

Q: What did he tell you, if any?

A: That he will bring me a toy.

Q: What did you answer when Lito told you that he will bring you a toy?

A: He told me that the toy is in the mountain and he brought me along.

xxx xxx xxx

COURT: Did Lito say what kind of toy he would give you or buy for you?



A: A shraider toy.

xxx xxx xxx

PUBLIC PROSECUTOR:

When Lito told you that the toy is still in the mountain, did you go with him to the mountain?

A: Yes. sir.

Q: Was there a house in the mountain where Lito brought you?

A: Yes, sir, a hut.

xxx xxx xxx

Q: Was Lito alone or was there any other person in the hut in the mountain where Lito broughtyou or was there another person?

A: Only the two of us.

Q: Do you know a person by the name of Onyok?

A: Yes, sir.

Q: Was Onyok there in that hut where Lito brought you?

A: Yes, sir.

Q: When Lito did not give you the toy in the hut in the mountain, what did you say to Lito?

A: I cried, sir.

Q: Did you tell Lito that you wanted to go home already?

A: I told him.

Q: Did he let you go home?

A: No, sir. (TSN, December 5, 1995, pp. 3-8)

Appellant insists that there was no deprivation of liberty in this case because Karwin voluntarilywent with him to the mountainous area of Mayamot to get the promised "Shaider" toy, and thatduring the period that Karwin was with him, the boy was always left alone at the hut where hecould do anything he wished, including escaping.



The argument does not persuade. There is deprivation of liberty even if the victim wentvoluntarily with the accused where the voluntary action was induced by the accused‘s false

inducement without which the victim would not have gone with him.13 Here, Karwin, a 5-yearold boy, was enticed by appellant to go with him to the mountain side on the pretext thatappellant will give Karwin a toy, a promise that was never fulfilled. And when Karwin signified

his desire to go home, appellant told him to stay put because he had to wait for the ransom.Again, we quote the boy‘s testimony in this regard:

Q: Did you not tell Lito that you want to go home already?

A: I told him.

Q: Did he let you go home?

A: No, sir.

Q: Why, what did he tell you why he did not want you to go home?

A: Lito told me that they should get the money before they allow me to go home.

Q: From whom will they get the money?

A: From my mother.

Q: How many days did you stay in that hut?

A: Three days (TSN, December 5, 1999, p. 9).

In any event, even assuming arguendo that Karwin could do anything he wished to while atappellant‘s custody, it is not hard to imagine that the boy could not have gone home, brought as

he was to an unfamiliar and deserted place at the mountain side. Indeed, it could well be thatappellant left the boy alone without any restraint precisely because he knew that it wasimpossible for the 5-year old Karwin to escape and go home.1a\^/phi1.net

Appellant was charged with the crime of kidnapping for ransom. Ransom means money, price orconsideration paid or demanded for the redemption of a captured person that would release himfrom captivity. No specific form of ransom is required to consummate the felony of kidnappingfor ransom as long as the ransom was intended as a bargaining chip in exchange for the victim‘s

freedom.

14

Whether or not the ransom is actually paid to or received by the perpetrator is of nomoment.15

The Court entertains no doubt at all that appellant kidnapped Karwin to extort P250,000.00 fromthe latter‘s family in exchange for his freedom. The testimony of Karwin‘s sister, Karen, whogave to one of the three young boys the bag containing the boodle money for delivery toappellant who hid himself at the nearby alley stands unrebutted. More than that is the ransomnote itself placed at the gate of the Amado‘s residence by Gilbert accompanied by Meil. Gilbert















VELASCO, JR., J.:

This is an appeal from the Decision dated June 29, 2007 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00651, modifying the Decision dated October 27, 2004 of the Regional TrialCourt (RTC), Branch 276 in Muntinlupa City in Criminal Case No. 00-410. The RTC adjudged

accused-appellant Roger Mendoza guilty of rape.

The Facts

On April 28, 2000, accused-appellant was charged with rape in an Information which reads asfollows:

That on or about the 25th day of April 2000, in the city of Muntinlupa, Philippines andwithin the jurisdiction of this Honorable Court, the above-named accused, with lewddesign, with force, intimidation and grave abuse of confidence, accused being employedas a driver in the business of the father of [AAA],1 a six (6) year old minor, did then and

there willfully, unlawfully and feloniously insert his finger inside the latter‘s vaginaagainst the will and consent of the said complainant.

Contrary to law.2

When arraigned, accused-appellant entered a plea of not guilty.

During trial, the prosecution presented AAA and both her parents as witnesses. Accused-appellant appeared as the lone witness for the defense.

The gist of AAA‘s account of the incident is as follows: It occurred in the early afternoon of

April 25, 2000 after her parents had left for work. She was then six (6) years old. At home withher on that day was the maid and accused-appellant, who was reapplying as family driver. As shewas playing with the water hose in the garage, her dress got wet forcing her to repair to her roomto change. Accused-appellant followed. Once inside the room, accused-appellant tried to undressher, tightly held her hands, and told her to lie in the bed. He thereupon pulled her panties down.In reaction, she pulled it up but accused-appellant quickly pulled it down again. It was at thismoment when, according to AAA, accused-appellant touched her vagina with his fingers andkissed her on the left cheek. All the while, he repeatedly assured her of being her friend and thatthey were just playing the mother-and-father roles. Shortly after, she ran to her parents‘ roomand locked the door. Accused-appellant followed but left after AAA ignored his insistence tocontinue with the father-mother game.

Later in the evening, AAA told her parents about her ordeal, after which they reported the matterto barangay officials and the police. AAA was then asked to undergo a medical examination.3

In the course of her direct examination, AAA was presented a sketch of a female body to assisther pinpoint what part of her body accused-appellant touched. In response, she shaded the area in between the legs of the female figure.4

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AAA‘s father testified that accused-appellant first applied as a driver in 1995. He came back toreapply on April 24, 2000, was asked to drive on that day, and stayed for the night. Thefollowing morning, her father left early for work leaving the still sleeping applicant behind.

The father narrated what his daughter disclosed when he arrived home from work, adding that,

when he routinely called the house at about 3:00 in the afternoon, the answering AAA calledaccused-appellant "bastos" and explained why so.

AAA‘s mother corroborated for the most part her husband‘s testimony. She attested that AAAwas only six years old when it happened.

Testifying in his defense, accused-appellant admitted to being at AAA‘s family home on April

24, 2000 and staying overnight. He remained in the house the following day waiting for AAA‘s

father to return so he could collect what he earned for a day‘s work. To while his time away, he

went outside to watch and talk to persons doing road repair work. And while outside, hesuddenly felt water falling upon him. As it turned out, AAA was playing in the yard with the

water hose aimed at him, which he did not mind.

5

She continued to play with the hose and endedup flooding the garage. Thereafter, he asked the road workers about the possibility of workingwith them only to be told he would need a barangay clearance. He then left, returning a few dayslater to submit his clearance to the workers‘ foreperson and to collect his one-day salary.According to accused-appellant, AAA‘s father was so angry at him for not waiting last April 25,

2000 that he pushed accused-appellant and banged his head against the garage wall. AfterAAA‘s mother pacified her irate husband, barangay officials arrived and brought accused-appellant to the police station. Once there, accused-appellant was charged with molesting AAA,who, however, did not say anything at the police station; it was her mother who answered all thequestions of the police investigator. He was charged with fingering the sexual organ of AAA. Hedenied the accusation, asserting that he did not touch the child, being outside their house on the

day in question watching men doing road repair work .

6

On October 27, 2004, the RTC rendered judgment finding accused-appellant guilty of rape. Thedispositive portion of the RTC‘s decision reads:

Under these declarations and these statutes, the Court is convinced that the crime of Rapehas been committed by accused ROGER MENDOZA Y DELA CRUZ as defined and penalized by the aforesaid laws. He is therefore sentenced to suffer imprisonment for allof his natural life or to life imprisonment. This sentence will be served at the New BilibidPrison, pending appeal should he desire to so appeal. The Jail Warden is thereforedirected to commit the said Accused, to the said prison.

It is SO ORDERED.7

Accused-appellant appealed the RTC decision to the CA. Before the appellate court, accused-appellant raised the following errors allegedly committed by the trial court: (1) in not dismissingthe case on account of the violation of his right to speedy trial; (2) in considering the prosecution‘s testimonial evidence which was not formally offered; and (3) in convicting him for

rape without the prosecution presenting proof of his guilt beyond reasonable doubt.















As preliminarily indicated, the CA modified the RTC‘s decision, the modification consisting of

downgrading the crime to and finding accused-appellant guilty of acts of lasciviousness, a crimewhich is necessarily included in the offense charged in the underlying Information. The fallo ofthe CA decision dated June 29, 2007 reads, as follows:

WHEREFORE, in light of all the foregoing, the October 27, 2004 Decision of theRegional Trial Court of Muntinlupa City, Branch 276 in Criminal Case No. 00-410finding accused-appellant guilty of the crime of rape and sentencing him to lifeimprisonment, is hereby MODIFIED. Accused-appellant Roger Mendoza y De La Cruzis found guilty beyond reasonable doubt of the crime of acts of lasciviousness, as definedand penalized under article 336 of the Revised Penal Code, in relation to Article III,Section 5 (b), of Republic Act No. 7610, and is sentenced to suffer the indeterminate penalty of 12 years and 1 day of reclusion temporal, as minimum, to 15 years, 6 [months]and 20 days of reclusion temporal as maximum and to pay the victim the amount ofP30,000.00.

SO ORDERED.

8

The CA predicated its modificatory disposition on the interplay of the following premises: TheRTC hastily concluded that rape was committed because there was insertion by accused-appellant‘s finger into the private part of AAA.

9 The records, however, show that accused-appellant merely stroked the external surface of AAA‘s vagina.

10 The medical findings alsoshowed that there was no physical manifestation of insertion into AAA‘s vagina, bolstering the

inference that no insertion took place.11

On July 12, 2007, accused-appellant filed his Notice of Appeal of the CA decision.

On February 18, 2008, the Court required the parties to submit supplemental briefs if they sodesired. They, however, manifested willingness to submit the case on the basis of availablerecords, logically suggesting that they are, in the main, reiterating the very same arguments theyraised before the CA.

Thus, the issues tendered in this appeal may be formulated, as follows:

1) whether or not accused-appellant‘s right to speedy trial was violated below;

2) whether or not the trial court erred in considering the testimonial evidence of the prosecution not formally offered;

3) whether or not the CA erred in convicting accused-appellant for the crime of acts oflasciviousness on the basis of the evidence presented.

The Court‟s Ruling

Right to Speedy Trial Not Violated



















Accused-appellant states that while he has been detained since April 26, 2000, his arraignmentcame only on March 2, 2001 and the prosecution started to present its evidence only on May 9,2001. To compound matters, the prosecution was not deemed to have terminated its presentationof evidence until April 14, 2004.12 Accused-appellant thus argues that the delays attending hiscase should have been enough for the trial court to have dismissed it.

The Court is not convinced.

The right to speedy trial, as an adjunct to the right of all persons to a speedy disposition of theircases before judicial and quasi-judicial bodies, requires that court proceedings should beconducted according to fixed rules and must be free from vexatious, capricious, and oppressivedelays.13 The same right may also be considered violated when unjustified postponements of thetrial are asked for and secured; or when without cause or justifiable motive, a long period of timeis allowed to elapse without the parties having their case tried.14 None of these circumstancesare, to us, present in the instant case. While perhaps there might have been delays, accused-appellant does not state in some detail what or who caused the delays, or whether these are of the

vexatious or oppressive kind.

What is more, accused-appellant belatedly invoked his right to speedy trial only before the CA.The proceedings cannot now be claimed to be attended by vexatious, capricious, and oppressivedelays. Accused-appellant cannot plausibly seek the protection of the law to benefit from theadverse effects of his failure to assert his right at the first instance.15 As the CA correctly and judiciously observed:

As can be gleaned from the records, accused-appellant never invoked in the RTC that hehas been deprived of his right to speedy trial and speedy disposition of case. As it is, anyallegation of violations of rights should first be ventilated with the RTC concomitant with

the prayer to dismiss the case with prejudice. It is a bit too late in the day for hereinaccused-appellant to invoke now his right to speedy trial (People vs. Tee, 395 SCRA 443[2003]). By raising this point belatedly with the [CA], accused-appellant has thus waivedhis objection and accordingly forfeits his right to the aforesaid constitutionalguarantees.16 x x x

Objection to Prosecution‟s Defective Offer of Evidence Waived

Accused-appellant next questions the manner in which AAA‘s testimonial evidence was offered.He claims that her testimony was only offered for the purpose of establishing her minority,17 notto establish the fact of molestation. The trial court, he says, supposedly erred in consideringevidence which did not conform to the purpose specified in the offer, in accordance with Section34 of Rule 132 of the Rules of Court.18

Accused-appellant posture is valid to a point. But despite the improper formal offer of AAA‘s

testimony, the defense failed to make a timely objection to the presentation of such testimonialevidence. Accused-appellant in fact proceeded with the trial of the case and, as the CA noted,"even subjected the witness to a rigorous cross-examination."19 The unyielding rule is thatevidence not objected to may be deemed admitted and be validly considered by the court in



































arriving at its judgment.20 In point is People v. Sanchez ,21 in which the prosecution called several persons to testify. No formal offer of testimonial evidence was made prior to or after theirtestimonies. The trial court, nonetheless, considered the testimonies owing to the adverse party‘sfailure to object to the presentation of such testimonial evidence. The Court sustained the trialcourt, reproducing what it earlier said in People v. Java:

x x x Section 36 [of Rule 132 of the Rules of Cour t22] requires that an objection in thecourse of the oral examination of a witness should be made as soon as the grounds[therefor] shall become reasonably apparent. Since no objection to the admissibility ofevidence was made in the court below, an objection raised for the first time on appealshall not be considered.23

Accused-appellant‘s belated invocation of the strict application of the rules on evidence to suit

his purpose is quite misplaced, for evidence not objected to, AAA‘s testimony in this case,

becomes the property of the case, and all the parties to the case are considered amenable to anyfavorable or unfavorable effects resulting from the evidence.24

The Prosecution Presented Sufficient Proof of Accused-Appellant‟s Guilt

In a bid to escape liability owing to insufficiency of evidence, accused-appellant avers, incontext, that the medical findings presented in court do not support the conclusion made by thetrial court that accused-appellant inserted his fingers into AAA‘s sexual organ, causing it to hurt.He likewise insists that the testimonies of AAA‘s parents were hearsay.

25

The direct examination of AAA yields the following:

Q And where did he touch you after he pulled down your shorts and panties?

A Here.

Q What do you call that here?

ATTY GARCIA

Witness pointing to the private part. You just say, what do you call that? What doyou call that? When you pointed to this, what do you call that?

x x x x

COURT

What part of your body did he touch? You stand and point.

ATTY GARCIA



























You just point. May I request, Your Honor that the witness be made to draw inher own capacity to identify this. You draw a female. Draw a woman.

COURT

We are going to put that on record. The part of the body that she pointed.

ATTY. GARCIA

Q Where did Roger touch you? Which part is this? Is this your belly or is this yourstomach or is this your vagina?

COURT

Where did she [point] to?

ATTY. GARCIA

The vagina.

Q That is put in between your legs, the Judge is asking?

A Yes, Ma‘am.

Q Aside from touching your private part, that part between your legs. Where else didRoger touch you?

A No more.

Q And aside from touching you, what else did he do?

COURT:

No answer?

ATTY. GARCIA:

There was an answer, Your Honor.

A He was over the window. He was telling me that we were friends. I did not listen tohim and he already went out of our house. He was already out.

Q Let‘s go back to touching first, [AAA]. So after he touched you, what else did he doto you? Did he kiss you [AAA]?

A Yes, Ma‘am.



After he touched you[,] you said he went out of your room. When did he [put]your dry panty [back on,] after he [touched] you[?] You said he went out of theroom. How about your dry panty?

A After he touched me.

COURT

He removed your wet panties and then he put on the dry one. When did thathappen[?] After he touched you or before? Because you said he went out.

ATTY. GARCIA

The answer was before, Your Honor.

COURT

You said that he pulled down your shirt. Then he pulled down your wet pantiesand then you said that he touched your part in between your legs and then he puton your dry panties. Was it before he touched your private part or after you weretouched?

A Before.

COURT

So you mean when he touched you in between the legs you already [had] the dry

panties or no panties yet?

A No panties yet.26

The Court need not belabor the issue of whether or not accused-appellant is guilty of rape whichin turn resolves itself into the question of whether or not he inserted his fingers into AAA‘ssexual organ. The issue has been peremptorily answered in the negative by the CA, basing itsresolution on the relevant finding of the examining doctor and on the testimony of AAA, who, at best, was tentative in her response when queried about the finger-insertion aspect of the incident.Also, the People does not challenge the determination. And precisely because of the fact of non-insertion that the appellate court was impelled, and rightly so, to downgrade the criminal act to

acts of lasciviousness. The records appear to support the a ppellate court‘s modificatory action.Consider the following answer given by AAA to the prosecution‘s question: "Where did Roger

touch you?" AAA pointed to the vagina of a female figure she had drawn.27

The following exchanges subsequently between the trial court and AAA, however, while provingin a convincing way malicious touching, provoke doubts whether indeed accused-appellantinserted his finger into the child‘s vagina.











consonance with Article 266-A, paragraph 2 of the Revised Penal Code, as amended by RepublicAct No. 8353, which provides:

Art. 266-A. Rape; when and how committed. – Rape is committed –

1) By a man who shall have carnal knowledge of a woman under any of the followingcircumstances:

a) Through force, threat or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented, eventhough none of the circumstances mentioned above be present.

2) By any person who, under any of the circumstances mentioned in paragraph 1

hereof, shall commit an act of sexual assault by inserting his penis into another

person‟s mouth or anal orifice, or any instrument or object, into the genital or anal

orifice of another person.

(Emphasis supplied.)

Rape through sexual assault, thus, requires that the assault be specifically done through"insertion" into the genital or anal orifices of the victim, a circumstance absent in this case, or atleast not established by the required quantum of evidence.

Accused-appellant‘s virtual contention that his guilt for acts of lasciviousness has not been

proved by proof beyond reasonable doubt deserves scant consideration. While the RTC and theCA had disagreed as to what crime was committed, the disagreement stemming from theirdiffering findings on whether or not accused-appellant inserted his fingers into AAA‘s vagina,

both the courts were one in saying that accused-appellant indeed kissed AAA on the face andfondled her most private part, or, in fine, that he committed lascivious acts on a six-year girl.31 The Court loathes to disturb the ensuing findings of the CA, confirmatory of that of the RTC:

The prosecution‘s evidence introduced during the entire trial established the presence ofall the elements of the crime of acts of lasciviousness. The testimony of the victim shows

that accused-appellant committed lewd acts against her when he pulled down her panties,kissed her on her left cheek, touched her private part and then squeezing her arm causingher extreme pain.32 x x x

As the CA observed, AAA‘s telling testimony deserves full faith and credit, given as it were in acategorical manner by a young and an immature girl who had no motive – and none was ascribed by the defense – to falsely impute the commission of a serious crime against the accused.33 And ifwe may add, in cases of acts of lasciviousness, the lone testimony of the offended party, if















credible, is sufficient to establish the guilt of the accused.34 The Court, thus, need not dwell intothe probative value of the corroborative testimony on the molestation incident of AAA‘s parents

which accused-appellant assails as hearsay.

Finally, we also sustain the award of moral damages in the amount of PhP 30,000 in accordance

with prevailing jurisprudence.

35

WHEREFORE, the appeal is DENIED. The CA Decision dated June 29, 2007 in CA-G.R. CR-H.C. No. 00651 finding accused-appellant Roger Mendoza y Dela Cruz guilty of acts oflasciviousness and imposing upon him the penalty defined therein is AFFIRMED.

No costs.

SO ORDERED.

[G.R. No. 147786. January 20, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. ERIC GUILLERMO y GARCIA, appellant .

D E C I S I O N

QUISUMBING, J .:

For automatic review is the judgment of the Regional Trial Court (RTC) of Antipolo City,Branch 73, dated March 7, 2001, in Criminal Case No. 98-14724, finding appellant EricGuillermo y Garcia guilty of murder and sentencing him to suffer the penalty of death.

In an Information dated March 23, 1998, appellant was charged by State Prosecutor JaimeAugusto B. Valencia, Jr., of murdering his employer, Victor Francisco Keyser, committed asfollows:

That on or about the 22nd day of March 1998, in the Municipality of Antipolo, Province of Rizal,Philippines and within the jurisdiction of this Honorable Court, the above-named accused, armedwith a piece of wood and a saw, with intent to kill, by means of treachery and with evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and hitwith a piece of wood and thereafter, cut into pieces using said saw one Victor F. Keyser, therebyinflicting upon the latter mortal injuries which directly caused his death.

CONTRARY TO LAW.

When arraigned on April 3, 1998, the appellant, assisted by counsel de oficio, pleaded guilty tothe charge.

On April 23, 1998, however, appellant moved to withdraw his plea of guilty and prayed for a re-arraignment. The trial court granted the motion and on April 28, 1998, he was re-arraigned.Assisted by counsel de parte, he entered a plea of not guilty. The case then proceeded to trial.











The facts, as gleaned from the records, are as follows.

The victim, Victor Francisco Keyser, was the owner and manager of Keyser PlasticManufacturing Corp. (Keyser Plastics for brevity), with principal place of business at SitioHalang, Lornaville, San Roque, Antipolo City. Keyser Plastics shared its building with

Greatmore Corporation, a manufacturer of faucets. Separating the respective spaces beingutilized by the two firms in their operations was a wall, the lower portion of which was made ofconcrete hollow blocks, while the upper portion was of lawanit boards. The part of the wall madeof lawanit had two large holes, which could allow a person on one side of the wall to see whatwas on the other side.

On March 22, 1998, prosecution witness Romualdo Campos, a security guard assigned toGreatmore was on duty. At around 8:00 a.m., he saw appellant Eric G. Guillermo enter the premises of Keyser Plastics. Campos ignored Guillermo, as he knew him to be one of the trustedemployees of Keyser Plastics. An hour later, he saw Victor F. Keyser arrive. Keyser checked the pump motor of the deep well, which was located in the area of Greatmore, after which he also

went inside the part of the building occupied by Keyser Plastics. Campos paid scant attention toKeyser.

Later, at around 10:00 a.m., Campos was making some entries in his logbook, when he heardsome loud noises (―kalabugan‖) coming from the Keyser Plastics area. He stopped to listen, butthinking that the noise was coming from the machines used to make plastics, he did not paymuch attention to the sound.

At around noontime, Campos was suddenly interrupted in the performance of his duties when hesaw appellant Guillermo look through one of the holes in the dividing wall. According toCampos, appellant calmly told him that he had killed Victor Keyser and needed Campos‘

assistance to help him carry the corpse to the garbage dump where he could burn it. Shocked bythis revelation, Campos immediately dashed off to telephone the police. The police told him toimmediately secure the premises and not let the suspect escape, while a reaction team was beingdispatched to the scene.

Ten minutes later, a team composed of SPO4 Felix Bautista, SPO1 Carlito Reyes, and PoliceAide Jovenal Dizon, Jr., all from the Antipolo Philippine National Police (PNP) Station, arrivedat the crime scene. With them was Felix Marcelo, an official police photographer. They wereimmediately met by Campos, who informed them that Guillermo was still inside the building.The law enforcers tried to enter the premises of Keyser Plastics, but found the gates securelylocked. The officers then talked to Guillermo and after some minutes, persuaded him to givethem the keys. This enabled the police to open the gate. Once inside, SPO4 Bautista and SPO1Reyes immediately accosted Guillermo who told them, ―Sir, hindi ako lalaban, susuko ako,

haharapin ko ito.‖ (―Sir, I shall not fight you, I am surrendering, and I shall face the

consequences.‖) Guillermo was clad only in a pair of shorts, naked from the waist up. SPO1Reyes then asked him where the body of the victim was and Guillermo pointed to somecardboard boxes. On opening the boxes, the police found the dismembered limbs and choppedtorso of Victor F. Keyser. The victim‘s head was found stuffed inside a cement bag.



When the police asked how he did it, according to the prosecution witness, Guillermo said thathe bashed the victim on the head with a piece of wood, and after Keyser fell, he dismembered the body with a carpenter‘s saw. He then mopped up the blood on the floor with a plastic foam.Guillermo then turned over to the police a bloodstained, two-foot long piece of coconut lumberand a carpenter‘s saw. Photographs were taken of the suspect, the dismembered corpse, and the

implements used in committing the crime. When asked as to his motive for the killing, Guillermoreplied that Keyser had been maltreating him and his co-employees. He expressed no regretwhatsoever about his actions.

The police then brought Guillermo to the Antipolo PNP Station for further investigation. SPO1Carlos conducted the investigation, without apprising the appellant about his constitutional rightsand without providing him with the services of counsel. SPO1 Carlos requested the NationalBureau of Investigation (NBI) to conduct a post-mor tem examination on Keyser‘s remains. TheAntipolo police then turned over the bloodstained piece of wood and saw, recovered from thelocus delicti, to the PNP Crime Laboratory for testing.

Dr. Ravell Ronald R. Baluyot, a medico-legal officer of the NBI, autopsied Keyser‘s remains. Hefound that the cadaver had been cut into seven (7) pieces. He found that the head had sustainedthirteen (13) contusions, abrasions, and other traumatic injuries, all of which had been caused by―forcible contact with hard blunt object,‖ such as a ―lead pipe, baseball bat, or a piece of wood.‖

He found the cause of death to be ―traumatic head injury.‖ Dr. Baluyot declared that since the

amputated body parts had irregular edges on the soft tissues, it was most likely that a sharp-edged, toothed instrument, like a saw, had been used to mutilate the corpse. He further declaredthat it was possible that the victim was dead when sawn into pieces, due to cyanosis or the presence of stagnant blood in the body, but on cross-examination, he admitted that he could notdiscount the possibility that the victim might still have been alive when mutilated.

Dr. Olga Bausa, medico-legal pathologist of the PNP Crime Laboratory, testified that shesubjected the bloodstained piece of coco lumber as well as the saw recovered from the crimescene to a bio-chemical examination to determine if the bloodstains were of human origin. Bothtested positive for the presence of human blood. However, she could not determine if the bloodwas of the same type as that of the victim owing to the insufficient amount of bloodstains on theitems tested.

Keyser‘s death shocked the nation. Appellant Guillermo, who was then in police custody, wasinterviewed on separate occasions by two TV reporters, namely: Augusto ―Gus‖ Abelgas ofABS-CBN News and Kara David of GMA Channel 7. Both interviews were subsequently broadcast nationwide. Appellant admitted to David that he committed the crime and never gaveit second thought. He disclosed to David the details of the crime, including how he struck Keyseron the head and cut up his body into pieces, which he placed in sacks and cartons. When askedwhy he killed his employer, Guillermo stated that Keyser had not paid him for years, did not feedhim properly, and treated him ―like an animal.‖ Both Abelgas and David said that Guillermo

expressed absolutely no remorse over his alleged misdeed during the course of their respectiveinterviews with him.



At the trial, appellant Guillermo‘s defense consisted of outright denial. He alleged he was avictim of police ―frame-up.‖ He testified that he had been an employee of Keyser for more thana year prior to the latter‘s death. On the date of the incident, he was all alone at the KeyserPlastics factory compound as a ―stay-in‖ employee. Other employees have left allegedly due toKeyser‘s maltreatment of them.

In the morning of March 22, 1998, appellant said Keyser instructed him to report for overtimework in the afternoon. He proceeded to the factory premises at one o‘clock in the afternoon, butsince his employer was not around, he said, he just sat and waited till he fell asleep. He wasawakened sometime later when he heard people calling him from outside. He then looked outand saw persons with firearms, who told him that they wanted to enter the factory. Once inside,they immediately handcuffed him and looked around the premises. When they returned, theywere carrying boxes and sacks. He said he was then brought to the police station where he wasadvised to admit having killed his employer since there was no other person to be blamed. Whenhe was made to face the media reporters, he said the police instructed him what to say. Heclaimed that he could no longer recall what he told the reporters. The appellant denied having

any grudge or ill feelings against his employer or his family.On cross-examination, appellant admitted that he was the shirtless person in the photographstaken at the crime scene, while the persons with him in the photographs were policemen wearinguniforms. He likewise admitted that the cartons and sacks found by the police inside the factory premises contained the mutilated remains of his employer. He claimed, however, that he wassurprised by the contents of said cartons and sacks. Appellant admitted that a bloodstained pieceof wood and a saw were also recovered by the police, but he insisted that the police made himhold the saw when they took photographs.

The trial court disbelieved appellant‘s version of the incident, but found the prosecution‘s

evidence against him weighty and worthy of credence. It convicted the appellant, thus:The guilt of the accused has been proven beyond reasonable doubt to the crime of murder ascharged in [the] information. WHEREFORE, the accused is meted the maximum penalty and ishereby sentenced to die by lethal injection.

The accused is also hereby ordered to pay the mother of the victim, Victor Keyser, the followingamounts:

1. Death Indemnity P50,000.00

2. Funeral Expenses P50,000.00

3. Compensatory Damages P500,000.00

4. Moral Damages P500,000.00

5. Exemplary Damages P300,000.00



6. Attorney‘s Fees P100,000.00 plus P3,000.00 per Court appearance.

SO ORDERED.

Hence, the case is now before us for automatic review.

In his brief, appellant assigns the following errors:

I

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THEACCUSED-APPELLANT FOR THE CRIME OF MURDER HAS BEEN PROVENBEYOND REASONABLE DOUBT.

II

THE COURT A QUO ERRED IN IMPOSING THE EXTREME PENALTY OF DEATH.

III

THE COURT A QUO GRAVELY ERRED IN AWARDING THE FOLLOWING DAMAGES:DEATH INDEMNITY P50,000.00; FUNERAL EXPENSES P50,000.00; COMPENSATORYDAMAGES P500,000.00; MORAL DAMAGES P500,000.00; EXEMPLARY DAMAGESP300,000.00; AND ATTORNEY‘S FEES OF P100,000.00 PLUS P3,000 PER COURT

APPEARANCE.

Briefly stated, the issues for resolution concern: (1) the sufficiency of the prosecution‘s evidence

to prove the appellant‘s guilt beyond reasonable doubt; (2) the propriety of the death penaltyimposed on appellant; and (3) the correctness of the award of damages.

Appellant contends that his conviction was based on inadmissible evidence. He points out thatthere is no clear showing that he was informed of his constitutional rights nor was he made tounderstand the same by the police investigators. In fact, he says, he was only made to read saidrights in printed form posed on the wall at the police precinct. He was not provided with theservices of counsel during the custodial investigation, as admitted by SPO1 Reyes. In view of noshowing on record that he had waived his constitutional rights, appellant argues that anyevidence gathered from him, including his alleged confession, must be deemed inadmissible.

For the State, the Office of the Solicitor General (OSG) counters that the evidence clearly showsthat the appellant admitted committing the crime in several instances, not just during thecustodial investigation. First, he admitted having killed his employer to the security guard,Campos, and even sought Campos‘ help in disposing of Keyser‘s body. This admission may be

treated as part of the res gestae and does not partake of uncounselled extrajudicial confession,according to the OSG. Thus, OSG contends said statement is admissible as evidence against theappellant. Second, the appellant‘s statements before members of the media are likewise

admissible in evidence, according to the OSG, as these statements were made in response to



questions by news reporters, not by police or other investigating officer. The OSG stresses thatappellant was interviewed by media on two separate occasions, and each time he made free andvoluntary statements admitting his guilt before the news reporters. He even supplied the detailson how he committed the crime. Third, the OSG points out that appellant voluntarily confessedto the killing even before the police could enter the premises and even before any question could

be posed to him. Furthermore, after the police investigators had entered the factory, the appellant pointed to the place where Keyser‘s corpse was found. The OSG submits that at these points intime, appellant was not yet under custodial investigation. Rather his statements to the police atthe crime scene were spontaneous and voluntary, not elicited through questioning, and hencemust be treated as part of the res gestae and thus, says the OSG, admissible in evidence.

The OSG contends that not every statement made to the police by a suspect in a crime fallswithin the ambit of constitutional protection. Hence, if not made under ―custodial investigation‖or ―under investigation for the commission of an offense,‖ the statement is not protected by the

Bill of Rights.

However, in our view, the confession appellant made while he was under investigation by SPO1Carlito Reyes for the killing of Keyser at the Antipolo PNP Station, falls short of the protectivestandards laid down by the Constitution. Under Article III of the Constitution, a confession to beadmissible must satisfy the following requisites: (a) the confession must be voluntary; (b) theconfession must be made with the assistance of competent and independent counsel; (c) theconfession must be express; and (d) the confession must be in writing. In the instant case, thetestimony of SPO1 Reyes on cross-examination clearly shows the cavalier treatment by the police of said constitutional guarantees. This can readily be gleaned from the transcript ofReyes‘ testimony, which we excerpt:

Q: What did you do next upon arriving at the police station?

A: When we arrived at the police station, I pointed to him and asked him to read what waswritten on the wall which was his constitutional rights.

Q: Did he read the same?

A: Yes, ma‘m.

Q: Did you ask the accused if he did understand what he read?

A: Yes, ma‘m.

Q: So Mr. Witness, you did continue your investigation at the police station?

A: Yes, ma‘m.

COURT:



What did the accused say when you asked him if he understood what was written on the wallwhich was his constitutional rights?

A: He said he understood what was written on the wall and he has no regrets.

COURT:

Proceed.

DEFENSE COUNSEL:

Who were present at the police station during your investigation?

A: There were many people around when I conducted the investigation at the police station.My companions were there but I do not know the other persons who were present.

Q: How was the investigation that you conducted at the police station?

A: I inquired again from Eric Guillermo why he did it, the reason why he did it.

Q: And was your investigation being recorded in the police station?

A: No, ma’m.

Q: Let me just clarify, I did not mean like a tape recorder. Was it written?

A: I only asked him but it was not written down or recorded.

Q: During the investigation, was there any lawyer or counsel that was called during theinvestigation?

A: None, ma’m.

Q: Did you inform the accused that he has the right to get a counsel during the investigation?

A: Yes, ma‘m.

Q: What did the accused say, Mr. Witness?

A: He did not utter any word.

Q: During the investigation at the police station, did you exert effort to provide him with

counsel before you asked him questions?

A: No, ma’m.



Q: Why?

A: Because during that time, it was Sunday afternoon and there was no counsel around andbecause he already admitted that he perpetrated the crime and that was explained to him, his

constitutional rights which was on the wall. We did not provide anymore a counsel.

…

Q: I would just like to ask the reason why you made the accused read the written rights that

was posted on the wall of your police station?

A: So that he would be apprised of his constitutional rights.

Q: So, you mean that you made him understand his rights?

A: Yes, ma’m.

Q: So, you mean to say before you asked him to read his rights, you presumed that he does not

understand what his constitutional rights are?

A: I think he knows his constitutional rights because he admitted the crime.

…

Q: And did the accused understand his rights?

A: I believe he understood because he answered, ―wala akong dapat pagsisihan.‖ (―I have

nothing to regret.‖).

Appellant‘s alleged confession at the police station lacks the safeguards required by the Bill ofRights. The investigating officer made no serious effort to make appellant aware of his basicrights under custodial investigation. While the investigating officer was aware of the appellant‘s

right to be represented by counsel, the officer exerted no effort to provide him with one on theflimsy excuse that it was a Sunday. Despite the absence of counsel, the officer proceeded withsaid investigation. Moreover, the record is bare of any showing that appellant had waived hisconstitutional rights in writing and in the presence of counsel. As well said in People v. Dano,even if the admission or confession of an accused is gospel truth, if it was made without theassistance of counsel, it is inadmissible in evidence regardless of the absence of coercion or even

if it had been voluntarily given.

The right of a person under interrogation ―to be informed‖ implies a correlative obligation on the

part of the police investigator to explain and contemplates an effective communication thatresults in an understanding of what is conveyed. Absent that understanding, there is a denial ofthe right ―to be informed,‖ as it cannot be said that the person has been truly ―informed‖ of his

rights. Ceremonial shortcuts in the communication of abstract constitutional principles ought not be allowed for it diminishes the liberty of the person facing custodial investigation.



Be that as it may, however, the inadmissibility of the appellant‘s confession to SPO1 Reyes at

the Antipolo PNP Station as evidence does not necessarily lead to his acquittal. Forconstitutional safeguards on custodial investigation (known, also as the Miranda principles) donot apply to spontaneous statements, or those not elicited through questioning by lawenforcement authorities but given in an ordinary manner whereby the appellant verbally admits

to having committed the offense. The rights enumerated in the Constitution, Article III, Section12, are meant to preclude the slightest use of the State‘s coercive power as would lead anaccused to admit something false. But it is not intended to prevent him from freely andvoluntarily admitting the truth outside the sphere of such power.

The facts in this case clearly show that appellant admitted the commission of the crime not justto the police but also to private individuals. According to the testimony of the security guard,Romualdo Campos, on the very day of the killing the appellant called him to say that he hadkilled his employer and needed assistance to dispose of the cadaver. Campos‘ testimony was not

rebutted by the defense. As the Solicitor General points out, appellant‘s statements to Campos

are admissible for being part of the res gestae. Under the Rules of Court, a declaration is deemed

part of the res gestae and admissible in evidence as an exception to the hearsay rule when thefollowing requisites concur: (1) the principal act, the res gestae is a startling occurrence; (2) thestatements were made before the declarant had time to contrive or devise; and (3) the statementsmust concern the occurrence in question and its immediately attending circumstances. All theserequisites are present in the instant case. Appellant had just been through a startling andgruesome occurrence, the death of his employer. His admission to Campos was made while hewas still under the influence of said startling occurrence and before he had an opportunity toconcoct or contrive a story. His declaration to Campos concerned the circumstances surroundingthe killing of Keyser. Appellant‘s spontaneous statements made to a private security guard, not

an agent of the State or a law enforcer, are not covered by the Miranda principles and, as res

gestate, admissible in evidence against him.

Further, when interviewed on separate occasions by the media, appellant not only agreed to beinterviewed by the news reporters, but he spontaneously admitted his guilt to them. He evensupplied the details regarding the commission of the crime to reporter Kara David of GMAChannel 7, who testified in court, to wit:

PUBLIC PROSECUTOR:

Q: Could you tell us what you found out in the interview?

A: The first question I think I asked was, if he admits the crime and he gladly said yes he did it,the details about the crime, how he saw the body and where he put it, and the reason why he didit.

…

COURT:

To what crime did he admit?



A: He said he got mad with (sic) his boss, so he got a piece of wood, ―dos por dos,‖ he hit his boss in the back and then after that, I think he got a saw and sawed the body to eight pieces.

…

PUBLIC PROSECUTOR:

You said the interview was done inside the room of Col. Quintana, how many were youinside the room at that time?

A: I really could not remember but I was with my cameraman, an assistant, Col. Quintana and Ithink two more escorts. I could not remember the others.

Q: You mentioned a while ago that he gladly admitted what he did, can you explain gladlyadmitted?

A: Usually when I interview suspects, either they deny or [are] in hysterics, but Eric seems(sic) calm when I interviewed him.

I said, ―ginawa mo ba ang krimen,‖ and he said, ―Oo.‖ ―Hindi ka ba nagdalawang isip?‖

―Hindi.‖ It was kind of eerie.

Q: You also mentioned that he gave details of the crime he committed, aside from what youalready mentioned like his boss being hit in the head and cut to eight pieces, what did he tellyou?

A: He told me where he put it, like he looked for sacks and cartons, and he told me where he

put the head but I could not remember.

But I remember him saying he put the head in the bag and he said he asked help from thesecurity guard, Campos. Basically, that‘s it. And he told me the reason why he did it.

Q: Why did he do it?

A: Because he was not being paid for what he has done and Mr. Keyser treated him like ananimal, things like that.

He said that what he did was just right, just justice.

The TV news reporters‘ testimonies on record show that they were acting as media professionals

when they interviewed appellant. They were not under the direction and control of the police.There was no coercion for appellant to face the TV cameras. The record also shows that theinterviews took place on several occasions, not just once. Each time, the appellant did not protestor insist on his innocence. Instead, he repeatedly admitted what he had done. He even supplieddetails of Keyser‘s killing. As held in Andan, statements spontaneously made by a suspect tonews reporters during a televised interview are voluntary and admissible in evidence.



Thus, we have no hesitation in saying that, despite the inadmissibility of appellant‘s alleged

confession to the police, the prosecution has amply proven the appellant‘s guilt in the killing of

Victor F. Keyser. The bare denial raised by the appellant in open court pales in contrast to thespontaneous and vivid out-of-court admissions he made to security guard Campos and the twomedia reporters, Abelgas and David. The positive evidence, including the instruments of the

crime, together with the medical evidence as well as the testimonies of credible prosecutionwitnesses, leaves us no doubt that appellant killed his employer, Victor Francisco Keyser, in thegruesome manner vividly described before the trial court.

But was appellant‘s offense murder for which appellant should suffer the death penalty, or onlyhomicide for which a lesser penalty is appropriate?

Appellant argues that the prosecution failed to prove either treachery or evident premeditation toqualify the killing as murder. He points out that there was not a single eyewitness to show howthe crime was committed and hence, absent an eyewitness to show the manner in which thecrime was committed, he cannot be held liable for murder.

For the appellee, the OSG submits that as recounted by the appellant himself, he repeatedlystruck the victim, with a piece of coco lumber (dos por dos), at the back of his head, while thevictim‘s back was turned towards him. The suddenness of the attack, coupled with the manner in

which it was executed clearly indicates treachery. The OSG agrees with appellant, however, thatevident premeditation was not adequately established. Hence, we shall now deal only with thedisputed circumstance, treachery.

Treachery or alevosia is present when the offender commits any crime against personsemploying means, methods or forms in the execution thereof, which tend directly and speciallyto insure its execution without risk to the offender arising from any defense which the offended

party might make. Two essential requisites must concur for treachery to be appreciated: (a) theemployment of means of execution that gives the person attacked no opportunity to defendhimself or to retaliate; and (b) the said means of execution was deliberately or consciouslyadopted.

A qualifying circumstance like treachery changes the nature of the crime and increases theimposable penalties for the offense. Hence, like the delict itself, it must be proven beyondreasonable doubt. In the instant case, we find insufficient the prosecution‘s evidence to provethat the attack on the victim came without warning and that he had absolutely no opportunity todefend himself, or to escape. None of the prosecution witnesses could know how the attack wasinitiated or carried out, simply because there was no eyewitness to the offense. In addition,appellant‘s narration in his taped interview with Channel 7 is not too clear on this point, thus:

ERIC GUILLERMO:

Mura pa rin ng mura. Nagtataka ako kung bakit ganoon na lamang kainit ito. Bigla niya akonginano dito sa batok ko tapos itinuturo niya ang dito ko (pointing to his head) itinuturo-turo niyaang dito ko.



Ayon mura ng mura, hindi ko napigilan ang sarili ko, dinampot ko iyong kahoy.

ARNOLD CLAVIO:

Sa mga oras na ‗yon, nagdilim, napuno ng galit ang kanyang mga mata, nakita niya ang isang dos

por dos sa kanyang tabi at agad dinampot habang nakatalikod ang kanyang amo.

ERIC GUILLERMO:

Nang gawin ko sa sarili ko iyon kalmadong kalmado ako noong ginawa ko ‗yon. Nasa sarili ako

noong ginawa ko iyon.

ARNOLD CLAVIO:

Hawak ang mahabang kahoy, hinampas ni Eric si Mr. Keyser, hinampas hanggang sa mawalan ngmalay. Tila hindi pa nakuntento sa kanyang nagawa, napagbalingan naman ni Eric ang isang

lagare sa kanyang tabi at isinagawa na ang karumal-dumal na krimen.

From the foregoing, all that can be discerned is that the victim was scolding the appellant, andthe victim‘s back was turned towards the appellant when the latter picked up the piece of wood.

It does not, however, show that there was any deliberate effort on the part of the appellant toadopt the particular means, method, or form of attack to ensure the commission of the crimewithout affording the victim any means to defend himself.

Dr. Ravell Ronald R. Baluyot, the NBI pathologist who autopsied the victim‘s body, observedthat it was difficult to determine the position of the victim in relation to his assailant. Nor was theexpert testimony of Dr. Baluyot definitive as to the relative position of the assailant and the

victim, to wit:

DEFENSE COUNSEL:

I would like also to ask from your medical knowledge thru the blows that the deceased received inhis head which caused the head injury, would you be able to ascertain also in what position wasthe attacker or where the attacker was?

A: Based on the location of the injuries at the head, it would be very difficult to determine therelative position of the victim and assailant as well as the position of the victim when hesustained said injury, because there are injuries located at the front, at the left and right portions

of the head although there were none located at the back (stress supplied). Based on theseinjuries, I would say that the position would probably be maybe in front, maybe to the left or theright in order for him to inflict the injuries to the front, to the left and right sides of the head.

Noteworthy, Dr. Baluyot pointed out that based on the injuries sustained by the victim, there isan indication that he tried to defend himself against the blows being inflicted upon him, thus:

PUBLIC PROSECUTOR:



Q: The wound that you found at the back of the hand, which is at the back of the right hand,would you characterize this as [a] defense wound?

A: It is a defense wound. All injuries especially at the upper extremities they could be taggedas defense wounds to fend off…attacks and these upper extremities are usually used to protect

the head and the body.

The gap in the prosecution‘s evidence cannot be filled with mere speculation. Treachery cannot

be appreciated absent the particulars as to the manner in which the aggression commenced orhow the act unfolded and resulted in the victim‘s demise. Any doubt as to its existence must,

perforce, be resolved in favor of appellant.

One attendant circumstance, however, is amply proved by the prosecution‘s evidence whichshows that the victim‘s corpse was sawn by appellant into seven (7) pieces. Under Art. 248 (6) of

the Revised Penal Code, ―outraging or scoffing at the corpse‖ is a qualifying circumstance. Dismemberment of a dead body is one manner of outraging or scoffing at the corpse of the

victim. In the instant case, the corpse of Victor F. Keyser was dismembered by appellant whosawed off the head, limbs, and torso. The Information categorically alleges this qualifyingcircumstance, when it stated that the appellant ―thereafter, cut into pieces using said saw oneVictor F. Keyser.‖ This being the case, as proved by the prosecution, appellant is guilty not justof homicide but of murder.

The penalty for murder is reclusion perpetua to death. There being neither aggravating normitigating circumstances in the instant case, the lesser penalty of reclusion perpetua should beimposed upon appellant.

Both appellant and appellee claim that the trial court erred in awarding damages. They submit

that the trial court‘s award of P50,000.00 for funeral expenses has insufficient basis, for onlyreceipts amounting to P38,068.00 as proof of funeral expenses were presented in evidence.Thus, this award should be reduced accordingly. Concerning the award of moral damages in theamount of P500,000, compensatory damages also for P500,000 and exemplary damages in theamount of P300,000, appellant submits that these cited sums are exorbitant, and not in accordwith prevailing jurisprudence. The OSG agrees, hence modification of said amounts is in order.

The amount of moral damages should be reduced to P50,000, pursuant to prevailing jurisprudence, as the purpose for such award is to compensate the heirs of the victim for theinjuries to their feelings and not to enrich them. Award of exemplary damages is justified inview of the gruesome mutilation of the victim‘s corpse, but the amount thereof should also bereduced to only P25,000, following current case law.

The award of P500,000 in compensatory damages lacks proof and ought to be deleted. Thevictim‘s mother, Remedios Keyser, testified that the victim was earning around P50,000.00 amonth as shown in the receipt issued by Rosetti Electronics Phils. Co. However, said receiptshows that it was made out to her, and not the victim. Moreover, it does not show what period iscovered by the receipt. Hence, the actual value of the loss of earning capacity was notadequately established. Awards for the loss of earning capacity partake of the nature of



damages, and must be proved not only by credible and satisfactory evidence but also by unbiased proof.

Civil indemnity for the victim‘s death, however, was left out by the trial court, although now it is

automatically granted without need of proof other than the fact of the commission of the crime.

Hence, conformably with prevailing jurisprudence, the amount of P50,000.00 as civil indemnityshould be awarded in favor of the victim‘s heirs.

Nothing on the record shows the actual expenses incurred by the heirs of the victim forattorney‘s fees and lawyer‘s appearance fees. Attorney‘s fees are in the concept of actual or

compensatory damages and allowed under the circumstances provided for in Article 2208 of theCivil Code, one of which is when the court deems it just and equitable that attorne y‘s fees should be recovered. In this case, we find an award of P25,000 in attorney‘s fees and litigation expenses

reasonable and equitable.

WHEREFORE, the assailed judgment of the Regional Trial Court of Antipolo City, Branch 73,

dated March 7, 2001 in Criminal Case No. 98-14724, finding appellant ERIC GUILLERMO yGARCIA GUILTY of the murder of Victor Francisco Keyser is AFFIRMED withMODIFICATION. Appellant‘s sentence is hereby REDUCED TO RECLUSION PERPETUA.He is also ORDERED to pay the heirs of the victim, Victor Francisco Keyser, the sum ofP50,000.00 as civil indemnity, P38,068.00 as actual damages, P50,000.00 as moral damages,P25,000.00 as exemplary damages, and P25,000.00 as attorney‘s fees, without subsidiaryimprisonment in case of insolvency. Costs de oficio.

SO ORDERED.

G.R. No. 139576 September 2, 2002

PEOPLE OF THE PHILIPPINES, appellee,vs.ROGER or ROGELIO PUEDAN, appellant.

PANGANIBAN, J.:

By invoking the defense of surprising his spouse in the very act of sexual intercourse with thevictim, the accused admits authorship of the killing. Having waived his constitutional right to be presumed faultless, he now bears the burden of proving his innocence. Furthermore, his flightnegates his self-righteous proclamation of being the victim of in flagrante adultery. Indeed, if

what he claims is true, he should have reported the incident to the authorities immediately,instead of hiding from them for over three years.

The Case

Rogelio Puedan appeals the June 16, 1999 Decision1 of the Regional Trial Court (RTC) of theCity of Malaybalay (Branch 8) in Criminal Case No. 7482-95, finding him guilty of murder andsentencing him to reclusion perpetua, as follows:



"WHEREFORE, judgment is hereby rendered finding accused Rogelio Puedan guilty beyond reasonable doubt of murder qualified by treachery. In the absence of any otheraggravating and/or a mitigating circumstance, accused is hereby sentenced to suffer the penalty of reclusion perpetua, and to indemnify the heirs of his victim Florencio Ilar thesum of P50,000.00."2

The Information3 dated June 20, 1995, charged appellant in these words:

"That on or about the 21st day of February, 1995, in the morning, at Purok 2, [B]arangayPaitan, Municipality of Quezon, [P]rovince of Bukidnon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill [and] by means of treachery and evident premeditation, armed with a sharp bladed instrument(flamingo), did then and there wilfully, unlawfully and criminally attack, assault and stabFLORENCIO ILAR, hitting and inflicting upon the latter the following, to wit:

- Multiple stab wounds

which caused the instant[an]eous death of FLORENCIO ILAR, to the damage and prejudice of the legal heirs of FLORENCIO ILAR in such amount as may be allowed bylaw."4

Upon his arraignment on June 9, 1998,5 appellant, assisted by his counsel,6 pleaded not guilty.After trial in due course, the court a quo rendered the assailed Decision.

The Facts

Version of the Prosecution

In its Brief,7 the Office of the Solicitor General (OSG) presents the prosecution‘s version of thefacts as follows:

"In the morning of February 21, 1995, Florencio Ilar, accompanied by his six-year oldgrandson, Reymark Anthony Ilar, went to the house of Luceno Tulo to buy a piglet.

"Luceno Tulo was fashioning out a mortar (for pounding palay) near his house whenFlorencio and his grandson arrived.

"Florencio told Luceno that he wanted to buy a piglet from him.

"Appellant Roger Puedan suddenly arrived and stabbed Florencio five (5) times, first inthe abdomen, with a sharp, pointed knife locally known as ‗plamingco‘. Terrified of what

he witnessed, Luceno fled towards the house of his neighbor. Young Reymark ran backto his parents‘ house and told his mother, Erlinda Ilar, what transpired.

"Erlinda Ilar ran swiftly to Luceno‘s place but Florencio was already dead when she

arrived. Florencio was bathed in his own blood and lying by the side of the rice paddy.



"The body of Florencio Ilar remained where it had fallen until the arrival of the policelater that day."8 (Citations omitted)

Version of the Defense

Appellant contends that he deserves acquittal, because the killing falls under the exceptionalcircumstance referred to in Article 247 of the Revised Penal Code. He claims to have surprisedhis spouse whom he had caught in the act of committing sexual intercourse with another person.Appellant narrates his version of the facts in the following manner:

"The defense had a different version of the incident that led to the death of Florencio Ilar.To lay the basis of the questionable character of the deceased[,] [t]he defense presentedthe testimony of JENNEFER NADELA, who claimed that she was once a house help inthe residence of the Ilars‘. During her stay, which lasted only from July 1 to July 30,

1992, the deceased used to fondle her private parts against her will. The deceasedlikewise proposed an amorous relationship with her, in exchange for some money, which

she declined.1âwphi1.nêt

"Corroborative of the testimony of Nadela, anent the character of the deceased, was thetestimony of witness VINESA QUINTERO. Quintero‘s father and the deceased weredrinking buddies. Sometime in December 1982, when she took her vacation at her parent‘s house, her father and Florencio Ilar had a drinking session. When the duo werethrough drinking, she washed the drinking glasses of their kitchen. Florencio Ilar,however, followed her inside the kitchen and without warning embraced and kissed her.Ilar then proposed that they go outside in exchange for some amount of money. Shedeclined the proposition. The incident was repeated during the next weekend when herfather and Ilar had another drinking session. The witness likewise averred that she heard

one of Florencio Ilar‘s daughter -in-law, Erlinda, confiding to her mother that FlorencioIlar was a sex maniac, who was bent on molesting her.

"LEAH PUEDAN, the wife of the accused, admitted having an illicit relationship withthe deceased, Florencio Ilar. The illicit relationship had been going on for two years andwas known in their barangay, except her husband. On February 21, 1995, at about 8:00o‘clock in the morning, Florencio Ilar came to their house, while she was breast feedingher child, and was looking for her husband, Roger Puedan. When she retorted that Rogerwas out putting the carabao in a shade, Florencio then suggested that they have a quicksexual intercourse, and ordered her to remove her skirt and panty, while also undressinghimself. While they were having sex, Roger suddenly appeared and was stunned by whathe saw. Roger then struck Florencio with his bolo and the two men grappled with eachother. She then gathered her young child and ran away from the house.

"Accused ROGER PUEDAN, testifying on his behalf, averred that Florencio Ilar wasone of the patrons in the ricefields [where] he works. As such patron, Florencio usually[brought] him wine and ‗pulutan ‘ which they partook at his house. On February 21,1995, at around 8:00 o‘clock in the morning, he brought his carabao to a shade. Upon his

return, he heard some noises emanating from their bedroom. His curiosity aroused, he



incident, appellant claims that Reymark and Erlinda merely underscored the fact that Florenciohad been stabbed. Thus, appellant argues that these witnesses were not able to contradict hisdefense.

Well-settled is the rule that the evaluation of the credibility of witnesses and their testimonies is

best undertaken by the trial court, because it had the opportunity to observe them firsthand and tonote their demeanor and conduct on the witness stand. For this reason, its findings on suchmatters, absent any arbitrariness or oversight of facts or circumstances of weight and substance,are final and conclusive upon this Court and will not to be disturbed on appeal. 15

In this case, the RTC found the prosecution witnesses to be credible and convincing. It observedthat Tulo, Reymark and Erlinda were candid and straightforward in relating their versions of thestabbing incident. Tulo narrated that he was outside his house fashioning a mortar whenFlorencio -- accompanied by his then five-year-old grandson, Reymark -- arrived in order to buya piglet. Standing about a meter away, Tulo recounted that appellant suddenly appeared andstabbed Florencio on the abdomen with a knife. Tulo testified thus:

"Q Yes, you said that Roger Puedan stabbed Florencio Ilar, did you see him [stab]Florencio Ilar?

A That was the time when I turned my head as I was making a mortar.

Q You mean, that was the time you saw Puedan [stab] Ilar?

A Yes.

Q Now, at the time you were making a mortar, where was this incident [happening], at

your front, at your back or at your side?

A On my side. (Witness referring to his right side).

Q How far were you [from] them when this incident happened?

A Just more than a meter.

COURT: (to witness)

Q You mean, while Florencio Ilar was there to buy [a] piglet you continued to work

on your mortar?

A Yes, Your Honor.

Q Before Roger Puedan actually stabbed Florencio Ilar, did you see him coming?

A He came suddenly, he passed this way.



(Witness pointing to his front side).

Q He passed by in front of you or by your side?

A On my front, as I was making a mortar.

Q Was he running, walking fast or was walking naturally?

A He was walking fast.

Q Did you hear Puedan say anything when he stabbed Florencio Ilar?

A No, Your honor.

Q What did he use in stabbing Florencio Ilar?

A A knife. (plamingco).

Q Where was Florencio Ilar hit?

A On his abdomen.

Q What was the position of Florencio Ilar when he was stabbed?

A He was standing on my side."16

After witnessing the knife thrust, Tulo out of fear immediately ran to his neighbor‘s house. He

explained:

"Q Now, after you saw this Puedan [stab] Ilar, what did you do?

A I ran away.

Q How many times did you see Puedan stab Ilar?

A Only once.

Q And you said you ran away, towards where?

A To my neighbor."17

Minutes later, Tulo with some other people went back to the crime scene and found Florencioalready dead, lying several meters away from the former‘s house.

18

Similarly, young Reymark testified that appellant had stabbed his grandfather Florencio fivetimes. He testified thus:



"Q How many times [was he] stabbed by Roger?

A Five (5) times.

Q What instrument did Roger use in stabbing your Lolo?

A A knife.

Q Where did Roger Puedan stab your Lolo, in what place?

A In the rice paddies.

COURT: (to witness)

Q Were you able to see all the incident?

A Yes, Your Honor.

Q You were at the rice paddies also?

A Yes, Your Honor.

Q Why were you there?

A Because he asked me to accompany him.

Q Who asked you?

A Lolo."19

There had been no untoward incident between appellant and Florencio immediately before thestabbing, as shown by Reymark‘s testimony:

"COURT: (to witness)

Q Were you and your Lolo able to reach the house of Ceno before he was stabbed?

A Yes, Your Honor.

Q So your Lolo was able to talk with Ceno?

A No.

Q Why?

A Because [he] was stabbed.



Q So he was still walking towards Ceno before he was stabbed?

A Not yet.

x x x x x x x x x

Q Did Roger Puedan and your Lolo have a fight before your Lolo was stabbed?

A No.

Q Did they have [an] argument?

A No, Your Honor.

Q Who arrived at Ceno‘s place first, your Lolo or Roger?

A Lolo.

Q Where was your Lolo hit the first time he was stabbed?

A On his abdomen."20

Reymark at first stated in his testimony that, before being stabbed, his grandfather had not beenable to talk to Tulo. From the boy‘s statement, appellant concludes that Tulo was not at or evennear the crime scene.21 This inconsistency was clarified when the trial court again questionedReymark, who this time stated that his grandfather had indeed been able to see Tulo on thatfateful morning.22 As posited by the prosecution, such inconsistency in the testimony of

Reymark may be explained by the fact that he was very young when the incident happened --only five years of age -- and was still very young when he testified on the witness stand threeyears later. Nonetheless, it was established that he and his grandfather were at Tulo‘s place to

buy a piglet, that the boy himself saw his Lolo stabbed by appellant, and that Tulo was there butdisappeared immediately after the first knife thrust.

Even assuming arguendo that Tulo was not at the crime scene, Reymark‘s testimony is sufficient

to prove that appellant actually stabbed Florencio.

Appellant further alleges that Erlinda, who was the first to arrive at the locus criminis, did notsee Tulo anywhere. This allegation, however, is consistent with the testimony of Tulo that he ran

to his neighbor‘s house right after the first knife thrust.

Furthermore, the physical evidence shows that Florencio lay dead near Tulo‘s -- not appellant‘s -- house. Erlinda testified that his body remained unmoved and untouched where it had fallenuntil the policemen came.23 In addition, SPO4 Antonio Inihao‘s testimony on the attendantcircumstances inspires belief. He testified that the body lay 80 meters away from appellant‘s

house and only about 15 meters away from Tulo‘s.24 This statement contradicts the claim of



appellant that he and Florencio grappled outside the former‘s house, where the latter fell and was

subsequently killed.

When found, the body of Florencio was fully clothed in a shirt and a pair of pants, all its buttonsintact.25 We agree with the RTC that had the victim been caught by surprise while engaged in the

sex act, he would not have had the opportunity to put on his pants, parry the forthcoming bolothrusts, and then grapple with appellant.

Appellant’s Flight

Further eroding the defense of appellant is the fact that he immediately fled from the crime sceneright after the stabbing incident. He hid for about three years26 until he was arrested by theauthorities on March 16, 1998.27 His flight betrays his defense, because he could have easilyrelayed his story to the proper authorities, if he had indeed caught his wife and Florencio in flagrante delicto.

Through flight, one impedes the course of justice by avoiding arrest, detention, or thecontinuance of criminal proceedings.28 As with self-defense, the exceptional circumstance provided under Article 247 of the Revised Penal Code may not prevail in the face of the flight ofappellant from the crime scene and his failure to inform the authorities of the incident.29 Flight bespeaks guilt and gives credence to the version of the prosecution in this case.30

Second Issue

Treachery

Similarly without merit is appellant‘s contention that treachery did not attend the killing. For

treachery to be present, the means, methods or forms of execution should give the personattacked no opportunity for self-defense or retaliation. And it must be proven that such means,methods or forms of execution were deliberately and consciously adopted without danger toappellant.31

In the present case, the RTC correctly ruled that treachery attended the killing. Appellant camefrom nowhere and suddenly stabbed the unsuspecting Florencio five (5) times. He deliberatelyand consciously adopted his mode of attack by lunging at the victim with his knife without anywarning whatsoever, giving the latter no opportunity to defend himself.1âwphi1.nêt

WHEREFORE, the appeal is hereby DENIED and the assailed Decision AFFIRMED . Costs

against appellant.SO ORDERED

G.R. No. L-47941 April 30, 1985

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. JAIME TOMOTORGO y

ALARCON, Defendant-Appellant .



ALAMPAY, J.:

Jaime Tomotorgo y Alarcon, the accused-appellant in this case, appeals from the decision

rendered on December 22, 1977, by the Court of First Instance of Camarines Sur, Branch IV, inCriminal Case No. 403 of said court finding him guilty of the crime of parricide for having killedhis wife Magdalena de los Santos. The dispositive portion of said judgment reads, as follows:

WHEREFORE, in view of the foregoing considerations, the accused Jaime Tomotorgo y Alarconis hereby condemned to suffer the penalty of reclusion perpetua and to indemnify the heirs of thedeceased Magdalena delos Santos in the sum of P12,000.00 without subsidiary imprisonment, plus costs. And considering the circumstances under which the offense was committed, the courthereby recommends executive clemency for him, after serving the minimum of the medium penalty of prision mayor.chanroblesvirtualawlibrary chanroblesvirtuallaw library

Let copy of this decision be furnished, his Excellency, the President of the Philippines, and theChairman of the Board of Pardons and Parole.chanroblesvirtualawlibrary chanroblesvirtuallaw library

SO ORDERED.chanroblesvirtualawlibrary chanroblesvirtuallaw library

Given at Naga City, this 22nd day of December, 1977. chanroblesvirtuallaw library

SGD. ALFREDO S. REBUENAJudge (Rollo, pg. 10) chanroblesvirtuallaw library

The facts of this case as recited in the decision of the trial court and in the appellee's brief standuncontroverted and undisputed. From the evidence submitted it is disclosed that the victim,Magdalena de los Santos, was the wife of the herein accused. Several months prior to theoccurrence of the fatal incident on June 23, 1977, Magdalena de los Santos had been persistentlyasking her husband to sell the conjugal home which was then located at Sitio Dinalungan,Barangay Cabugao, Municipality of Siruma, Camarines Sur. She wanted their family to transferto the house of her husband's in-laws which is in the town of Tinambac, Camarines Sur. (TSN, pp. 6-10, December 13, 1977). Accused Tomotorgo would not accede to his wife's request. Hedid not like to abandon the house wherein he and his wife were then living. Furthermore, he hadno inclination to leave because he has many plants and improvements on the land which he was

then farming in said municipality of Siruma, Camarines Sur, a town very far from the place ofhis in-laws where his wife desired their family to transfer to. chanroblesvirtualawlibrary chanroblesvirtuallaw library

On June 23, 1977, at about seven o'clock in the morning, the accused left his home to work onhis farm Upon his return at about nine o'clock that same morning. He found his wife and histhree-month old baby already gone. He proceeded to look for both of them and sometime lateron, on a trail about two hundred (200) meters from their home, he finally saw his wife carryinghis infant son and bringing a bundle of clothes. He asked and pleaded with his wife that she



should return home with their child but she adamantly refused to do so. When appellant soughtto take the child from his wife, the latter threw the baby on the grassy portion of the trail herebycausing the latter to cry. This conduct of his wife aroused the ire of the herein accused. Incensedwith wrath and his anger beyond control, appellant picked lip a piece of wood nearby and startedhitting his wife with it until she fell to the ground complaining of severe pains on her chest.

Realizing what he had done, the accused picked his wife in his arms and brought her to theirhome. He then returned to the place where the child was thrown and he likewise took this infanthome. Soon thereafter, Magdalena de los Santos died despite the efforts of her husband toalleviate her pains.chanroblesvirtualawlibrary chanroblesvirtuallaw library

After the accused changed the dress of his wife, he reported the tragic incident to the BarangayCaptain of their place who brought him to Policeman Arellosa to whom the accused surrendered.He also brought with him the piece of wood he used in beating his wife. chanroblesvirtualawlibrary chanroblesvirtuallaw library

Charged with the crime of parricide, the accused at his arraignment on November 24, 1977, withassistance from his counsel de-oficio, pleaded not guilty to the said offense. However, when his

case was called for trial on December 13, 1977, his counsel manifested to the court that after hisconference with the accused, the latter expressed a desire to change his previous plea of notguilty to that of guilty. Accordingly, and upon motion by the counsel of the accused and withoutobjection on the part of the prosecution, the trial court allowed the accused to withdraw hisoriginal plea. Upon being re-arraigned, the accused entered a plea of guilty. He confirmed themanifestations made by his counsel to the court regarding his desire to change his initial plea. Heexpressed his realization of the gravity of the offense charged against him and the consequencesof his plea. His counsel was then permitted by the court to establish the mitigating circumstanceswhich were then invoked in favor of the accused. chanroblesvirtualawlibrary chanroblesvirtuallaw library

After the accused had testified and upon his plea given in open court, the court below found him

guilty of the crime of parricide, but with three mitigating circumstances in his favor, namely:voluntary surrender, plea of guilty, and that he acted upon an impulse so powerful as naturally tohave produced passion and obfuscation. chanroblesvirtualawlibrary chanroblesvirtuallaw library

With the imposition by the court below of the penalty of reclusion perpetua on the hereinaccused and the subsequent denial of his motion for reconsideration of the judgment renderedagainst him, the accused through his counsel filed a notice of appeal to this Court. chanroblesvirtualawlibrary chanroblesvirtuallaw library

In his appeal, accused argues and contends that the lower court erred:

1. In disregarding its own findings of fact which showed manifest lack of intent to kill; chanroblesvirtuallaw library

2. In disregarding the provisions of Article 49 of the Revised Penal Code which prescribes the proper applicable penalty where the crime committed is different from that intended; chanroblesvirtuallaw library

3. In not following the mandatory sequence of procedures for determining the correct applicable penalty; chanroblesvirtuallaw library



Appellant maintains the belief that he should be punished only for the offense he intended tocommit which he avers to be serious physical injuries, qualified by the fact that the offended party is his spouse. Pursuant to the sub-paragraph of paragraph 4 of Art. 263 of the RevisedPenal Code and as his wife is among the persons mentioned in Art. 246 of the same code,appellant contends that the penalty imposable should then be reclusion temporal in its medium

and maximum periods. On this mistaken premise, appellant therefore claims that the penalty prescribed by law for his offense is divisible and he should thus be entitled to the benefits of theIndeterminate Sentence Law.chanroblesvirtualawlibrary chanroblesvirtuallaw library

These contentions of the accused are manifestly untenable and incorrect. Article 4 of the RevisedPenal Code expressly states that criminal liability shall be incurred by any person committing afelony (delito) although the wrongful act be different from that which he intended and that theaccused is liable for all the consequences of his felonious acts. chanroblesvirtualawlibrary chanroblesvirtuallaw library

The reference made by the accused to Article 263 of the Revised Penal Code which prescribesgraduated penalties for the corresponding physical injuries committed is entirely misplaced and

irrelevant considering that in this case the victim died very soon after she was assaulted. It will be, therefore, illogical to consider appellant's acts as falling within the scope of Article 263 of theRevised Penal Code. The crime committed is parricide no less. chanroblesvirtualawlibrary chanroblesvirtuallaw library

We are in complete accord with and we sustain the ruling made by the courts below that theaccused is not entitled to the benefits of the Indeterminate Sentence Law. The court sustains thesubmissions of the appellee that -

... Article 49 of the Revised Penal Code does not apply to cases where more seriousconsequences not intended by the offender result from his felonious act because, under Article 4, par. I of the same Code, he is liable for all the direct and natural consequences of his unlawful

act. His lack of intention to commit so grave a wrong is, at best mitigating (Article 13, par. 3).chanroblesvirtualawlibrary

chanroblesvirtuallaw library

Article 49 applies only to cases where the crime committed is different from that intended andwhere the felony committed befalls a different person (People vs. Albuquerque, 59 Phil. 150).chanroblesvirtualawlibrary chanroblesvirtuallaw library

Article 246 of the Revised Penal Code punished parricade with the penalty of reclusion perpetuato death, which are two indivisible penalties. As the commission of the act was attended bymitigitating circumstances with no aggravating circumstances, the lesser penalty, which isreclusion perpetua, should be imposed (People vs. Laureano, et al., 71 Phil. 530; People vs.Francisco, 78 Phil. 697; People vs. Belarmino, 91 Phil. 118) Appellee's Brief, pp. 6-7).(Emphasis supplied)

We hold that the fact that the appellant intended to maltreat the victim only or inflict physicalimjuries does not exempt him from liability for the resulting and more serious crime committed.In the case of People vs. Climaco Demiar, 108 Phil. 651, where the accused therein had chokedhis mother in a fit of anger because the latter did not prepare any food for him, it was ruled thathte crime committed by Demiar is parricide (Article 246, Revised Penal Code), the deceasedvictim of his criminal act being his legitimate mother. Said crime was declared as punishablewith reclusion perpetua to death. As the mitigating circumstance of alck of intent to commit so



grave a wrong. (Article 13 (3 Id.) The penalty imposed on the herein accused is therefore correctin the light of the relevant provisions of law and jurisprudence. chanroblesvirtualawlibrary chanroblesvirtuallaw library

The trial court in its consideration of this case had added a recommendation that "executiveclemency be extended to the accused-appellant after his service of the minimum of the medium

penalty of prison mayor." The Solicitor General likewise concludes and prays in the People'sBrief that in view of the circumstances which attended the commission of the offense, arecommendation for the commutation of the penalty would be appropriate. (Appellee's Brief, pg.7). This Court is constrained to take note that the accused-appellant is said to have been indetention since June 23, 1977 or for more than seven years already. This Court can do no lessthan express its hope that hte accused-appellant can be now extended an absolute or conditional pardon by the President of the Republic of the Philippines or that there be a commutation of hissentence so that he may qualify and be eligible for parole. chanroblesvirtualawlibrary chanroblesvirtuallaw library

WHEREFORE, the appealed judgment is hereby affirmed without any pronouncement as tocosts.chanroblesvirtualawlibrary chanroblesvirtuallaw library

Considering the circumstances which attended the commission of the offense, the manifestrepentant attitude of the accused and his remorse for his act which even the trial court made particular mention of in its decision and the recommendation made by the Office of the SolicitorGeneral as well as number of years that the accused-appellant had been imprisoned, this Courtcan do no less than recommend that executive clemency be extended to the accused-appellant,Jaime Tomotorgo y Alarcon, or that his sentence be commuted so that he can now qualify and beconsidered eligible for parole. This recommendation of the Court should be promptly brought tothe attention of the President of the Republic of the Philippines by the proper authorities inwhose custody the herein accused has been placed. chanroblesvirtualawlibrary chanroblesvirtuallaw library

Aside from this, let copy of this decision be furnished the Office of the President of the Republicof the Philippines and the Chairman of the Board of Pardons and Parole.chanroblesvirtualawlibrary chanroblesvirtuallaw library

SO ORDERED.

G.R. No. 91649 May 14, 1991

ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES MARANANAND LORENZO SANCHEZ, petitioners,vs.PHILIPPINE AMUSEMENTS AND GAMING CORPORATION (PAGCOR), respondent.

H.B. Basco & Associates for petitioners.

Valmonte Law Offices collaborating counsel for petitioners.

Aguirre, Laborte and Capule for respondent PAGCOR.



PARAS, J .: p

A TV ad proudly announces:

"The new PAGCOR — responding through responsible gaming."

But the petitioners think otherwise, that is why, they filed the instant petition seeking toannul the Philippine Amusement and Gaming Corporation (PAGCOR) Charter — PD1869, because it is allegedly contrary to morals, public policy and order, and because —

A. It constitutes a waiver of a right prejudicial to a third person with a right recognized by law. It waived the Manila Citygovernment's right to impose taxes and license fees, which is recognized by law;

B. For the same reason stated in the immediately preceding paragraph, the law has intruded into the localgovernment's right to impose local taxes and license fees. This, in contravention of the constitutionally enshrinedprinciple of local autonomy;

C. It violates the equal protection clause of the constitution in that it legalizes PAGCOR — conducted gambling, whilemost other forms of gambling are outlawed, together with prostitution, drug trafficking and other vices;

D. It violates the avowed trend of the Cory government away from monopolistic and crony economy, and toward freeenterprise and privatization. (p. 2, Amended Petition; p. 7, Rollo)

In their Second Amended Petition, petitioners also claim that PD 1869 is contrary to thedeclared national policy of the "new restored democracy" and the people's will asexpressed in the 1987 Constitution. The decree is said to have a "gambling objective"and therefore is contrary to Sections 11, 12 and 13 of Article II, Sec. 1 of Article VIII andSection 3 (2) of Article XIV, of the present Constitution (p. 3, Second Amended Petition;p. 21, Rollo).

The procedural issue is whether petitioners, as taxpayers and practicing lawyers

(petitioner Basco being also the Chairman of the Committee on Laws of the City Councilof Manila), can question and seek the annulment of PD 1869 on the alleged groundsmentioned above.

The Philippine Amusements and Gaming Corporation (PAGCOR) was created by virtueof P.D. 1067-A dated January 1, 1977 and was granted a franchise under P.D. 1067-Balso dated January 1, 1977 "to establish, operate and maintain gambling casinos onland or water within the territorial jurisdiction of the Philippines." Its operation wasoriginally conducted in the well known floating casino "Philippine Tourist." The operationwas considered a success for it proved to be a potential source of revenue to fundinfrastructure and socio-economic projects, thus, P.D. 1399 was passed on June 2,

1978 for PAGCOR to fully attain this objective.

Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable theGovernment to regulate and centralize all games of chance authorized by existingfranchise or permitted by law, under the following declared policy —

Sec. 1. Declaration of Policy . — It is hereby declared to be the policy of the State to centralize and integrate all gamesof chance not heretofore authorized by existing franchises or permitted by law in order to attain the following objectives:



(a) To centralize and integrate the right and authority to operate and conduct games of chance into one corporate entityto be controlled, administered and supervised by the Government.

(b) To establish and operate clubs and casinos, for amusement and recreation, including sports gaming pools,(basketball, football, lotteries, etc.) and such other forms of amusement and recreation including games of chance,which may be allowed by law within the territorial jurisdiction of the Philippines and which will: (1) generate sources ofadditional revenue to fund infrastructure and socio-civic projects, such as flood control programs, beautification,sewerage and sewage projects, Tulungan ng Bayan Centers, Nutritional Programs, Population Control and such other

essential public services; (2) create recreation and integrated facilities which will expand and improve the country'sexisting tourist attractions; and (3) minimize, if not totally eradicate, all the evils, malpractices and corruptions that arenormally prevalent on the conduct and operation of gambling clubs and casinos without direct government involvement.(Section 1, P.D. 1869)

To attain these objectives PAGCOR is given territorial jurisdiction all over thePhilippines. Under its Charter's repealing clause, all laws, decrees, executive orders,rules and regulations, inconsistent therewith, are accordingly repealed, amended ormodified.

It is reported that PAGCOR is the third largest source of government revenue, next tothe Bureau of Internal Revenue and the Bureau of Customs. In 1989 alone, PAGCORearned P3.43 Billion, and directly remitted to the National Government a total of P2.5Billion in form of franchise tax, government's income share, the President's Social Fundand Host Cities' share. In addition, PAGCOR sponsored other socio-cultural andcharitable projects on its own or in cooperation with various governmental agencies,and other private associations and organizations. In its 3 1/2 years of operation underthe present administration, PAGCOR remitted to the government a total of P6.2 Billion.

As of December 31, 1989, PAGCOR was employing 4,494 employees in its nine (9)casinos nationwide, directly supporting the livelihood of Four Thousand Four HundredNinety-Four (4,494) families.

But the petitioners, are questioning the validity of P.D. No. 1869. They allege that thesame is "null and void" for being "contrary to morals, public policy and public order,"monopolistic and tends toward "crony economy", and is violative of the equal protectionclause and local autonomy as well as for running counter to the state policiesenunciated in Sections 11 (Personal Dignity and Human Rights), 12 (Family) and 13(Role of Youth) of Article II, Section 1 (Social Justice) of Article XIII and Section 2(Educational Values) of Article XIV of the 1987 Constitution.

This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and themost deliberate consideration by the Court, involving as it does the exercise of what hasbeen described as "the highest and most delicate function which belongs to the judicialdepartment of the government." (State v. Manuel, 20 N.C. 144; Lozano v. Martinez, 146SCRA 323).

As We enter upon the task of passing on the validity of an act of a co-equal andcoordinate branch of the government We need not be reminded of the time-honoredprinciple, deeply ingrained in our jurisprudence, that a statute is presumed to be valid.Every presumption must be indulged in favor of its constitutionality. This is not to saythat We approach Our task with diffidence or timidity. Where it is clear that thelegislature or the executive for that matter, has over-stepped the limits of its authority



under the constitution, We should not hesitate to wield the axe and let it fall heavily, asfall it must, on the offending statute (Lozano v. Martinez, supra).

In Victoriano v . Elizalde Rope Workers' Union, et al , 59 SCRA 54, the Court thru Mr.Justice Zaldivar underscored the —

. . . thoroughly established principle which must be followed in all cases where questions of constitutionality as obtain inthe instant cases are involved. All presumptions are indulged in favor of constitutionality; one who attacks a statutealleging unconstitutionality must prove its invalidity beyond a reasonable doubt; that a law may work hardship does notrender it unconstitutional; that if any reasonable basis may be conceived which supports the statute, it will be upheldand the challenger must negate all possible basis; that the courts are not concerned with the wisdom, justice, policy orexpediency of a statute and that a liberal interpretation of the constitution in favor of the constitutionality of legislationshould be adopted. (Danner v. Hass, 194 N.W. 2nd 534, 539; Spurbeck v. Statton, 106 N.W. 2nd 660, 663; 59 SCRA66; see also e.g. Salas v. Jarencio, 46 SCRA 734, 739 [1970]; Peralta v. Commission on Elections, 82 SCRA 30, 55[1978]; and Heirs of Ordona v. Reyes, 125 SCRA 220, 241-242 [1983] cited in Citizens Alliance for ConsumerProtection v. Energy Regulatory Board, 162 SCRA 521, 540)

Of course, there is first, the procedural issue. The respondents are questioning the legalpersonality of petitioners to file the instant petition.

Considering however the importance to the public of the case at bar, and in keepingwith the Court's duty, under the 1987 Constitution, to determine whether or not the otherbranches of government have kept themselves within the limits of the Constitution andthe laws and that they have not abused the discretion given to them, the Court hasbrushed aside technicalities of procedure and has taken cognizance of this petition.(Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas Inc. v. Tan, 163 SCRA371)

With particular regard to the requirement of proper party as applied in the cases before us, We hold that the same issatisfied by the petitioners and intervenors because each of them has sustained or is in danger of sustaining animmediate injury as a result of the acts or measures complained of. And even if, strictly speaking they are not coveredby the definition, it is still within the wide discretion of the Court to waive the requirement and so remove theimpediment to its addressing and resolving the serious constitutional questions raised.

In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed to question the constitutionality ofseveral executive orders issued by President Quirino although they were involving only an indirect and general interestshared in common with the public. The Court dismissed the objection that they were not proper parties and ruled that"the transcendental importance to the public of these cases demands that they be settled promptly and definitely,brushing aside, if we must technicalities of procedure." We have since then applied the exception in many other cases.(Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343).

Having disposed of the procedural issue, We will now discuss the substantive issuesraised.

Gambling in all its forms, unless allowed by law, is generally prohibited. But theprohibition of gambling does not mean that the Government cannot regulate it in the

exercise of its police power.

The concept of police power is well-established in this jurisdiction. It has been definedas the "state authority to enact legislation that may interfere with personal liberty orproperty in order to promote the general welfare." (Edu v. Ericta, 35 SCRA 481, 487) Asdefined, it consists of (1) an imposition or restraint upon liberty or property, (2) in orderto foster the common good. It is not capable of an exact definition but has been,



purposely, veiled in general terms to underscore its all-comprehensive embrace.(Philippine Association of Service Exporters, Inc. v. Drilon, 163 SCRA 386).

Its scope, ever-expanding to meet the exigencies of the times, even to anticipate thefuture where it could be done, provides enough room for an efficient and flexible

response to conditions and circumstances thus assuming the greatest benefits. (Edu v.Ericta, supra)

It finds no specific Constitutional grant for the plain reason that it does not owe its originto the charter. Along with the taxing power and eminent domain, it is inborn in the veryfact of statehood and sovereignty. It is a fundamental attribute of government that hasenabled it to perform the most vital functions of governance. Marshall, to whom theexpression has been credited, refers to it succinctly as the plenary power of the state "togovern its citizens". (Tribe, American Constitutional Law, 323, 1978). The police powerof the State is a power co-extensive with self-protection and is most aptly termed the"law of overwhelming necessity." (Rubi v. Provincial Board of Mindoro, 39 Phil. 660,

708) It is "the most essential, insistent, and illimitable of powers." (Smith Bell & Co. v.National, 40 Phil. 136) It is a dynamic force that enables the state to meet the agenciesof the winds of change.

What was the reason behind the enactment of P.D. 1869?

P.D. 1869 was enacted pursuant to the policy of the government to "regulate andcentralize thru an appropriate institution all games of chance authorized by existingfranchise or permitted by law" (1st whereas clause, PD 1869). As was subsequentlyproved, regulating and centralizing gambling operations in one corporate entity — thePAGCOR, was beneficial not just to the Government but to society in general. It is a

reliable source of much needed revenue for the cash strapped Government. It providedfunds for social impact projects and subjected gambling to "close scrutiny, regulation,supervision and control of the Government" (4th Whereas Clause, PD 1869). With thecreation of PAGCOR and the direct intervention of the Government, the evil practicesand corruptions that go with gambling will be minimized if not totally eradicated. Publicwelfare, then, lies at the bottom of the enactment of PD 1896.

Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of Manilato impose taxes and legal fees; that the exemption clause in P.D. 1869 is violative of theprinciple of local autonomy. They must be referring to Section 13 par. (2) of P.D. 1869which exempts PAGCOR, as the franchise holder from paying any "tax of any kind orform, income or otherwise, as well as fees, charges or levies of whatever nature,whether National or Local."

(2) Income and other taxes. — a) Franchise Holder: No tax of any kind or form, income or otherwise as well as fees,charges or levies of whatever nature, whether National or Local, shall be assessed and collected under this franchisefrom the Corporation; nor shall any form or tax or charge attach in any way to the earnings of the Corporation, except afranchise tax of five (5%) percent of the gross revenues or earnings derived by the Corporation from its operationsunder this franchise. Such tax shall be due and payable quarterly to the National Government and shall be in lieu of allkinds of taxes, levies, fees or assessments of any kind, nature or description, levied, established or collected by anymunicipal, provincial or national government authority (Section 13 [2]).



Their contention stated hereinabove is without merit for the following reasons:

(a) The City of Manila, being a mere Municipal corporation has no inherent right toimpose taxes (Icard v. City of Baguio, 83 Phil. 870; City of Iloilo v. Villanueva, 105 Phil.337; Santos v. Municipality of Caloocan, 7 SCRA 643). Thus, "the Charter or statute

must plainly show an intent to confer that power or the municipality cannot assume it"(Medina v. City of Baguio, 12 SCRA 62). Its "power to tax" therefore must always yieldto a legislative act which is superior having been passed upon by the state itself whichhas the "inherent power to tax" (Bernas, the Revised [1973] Philippine Constitution, Vol.1, 1983 ed. p. 445).

(b) The Charter of the City of Manila is subject to control by Congress. It should bestressed that "municipal corporations are mere creatures of Congress" (Unson v.Lacson, G.R. No. 7909, January 18, 1957) which has the power to "create and abolishmunicipal corporations" due to its "general legislative powers" (Asuncion v. Yriantes, 28Phil. 67; Merdanillo v. Orandia, 5 SCRA 541). Congress, therefore, has the power of

control over Local governments (Hebron v. Reyes, G.R. No. 9124, July 2, 1950). And ifCongress can grant the City of Manila the power to tax certain matters, it can alsoprovide for exemptions or even take back the power.

(c) The City of Manila's power to impose license fees on gambling, has long beenrevoked. As early as 1975, the power of local governments to regulate gambling thruthe grant of "franchise, licenses or permits" was withdrawn by P.D. No. 771 and wasvested exclusively on the National Government, thus:

Sec. 1. Any provision of law to the contrary notwithstanding, the authority of chartered cities and other localgovernments to issue license, permit or other form of franchise to operate, maintain and establish horse and dog racetracks, jai-alai and other forms of gambling is hereby revoked.

Sec. 2. Hereafter, all permits or franchises to operate, maintain and establish, horse and dog race tracks, jai-alai andother forms of gambling shall be issued by the national government upon proper application and verification of thequalification of the applicant . . .

Therefore, only the National Government has the power to issue "licenses or permits"for the operation of gambling. Necessarily, the power to demand or collect license feeswhich is a consequence of the issuance of "licenses or permits" is no longer vested inthe City of Manila.

(d) Local governments have no power to tax instrumentalities of the NationalGovernment. PAGCOR is a government owned or controlled corporation with anoriginal charter, PD 1869. All of its shares of stocks are owned by the National

Government. In addition to its corporate powers (Sec. 3, Title II, PD 1869) it alsoexercises regulatory powers thus:

Sec. 9. Regulatory Power . — The Corporation shall maintain a Registry of the affiliated entities, and shall exercise allthe powers, authority and the responsibilities vested in the Securities and Exchange Commission over such affiliatingentities mentioned under the preceding section, including, but not limited to amendments of Articles of Incorporationand By-Laws, changes in corporate term, structure, capitalization and other matters concerning the operation of theaffiliated entities, the provisions of the Corporation Code of the Philippines to the contrary notwithstanding, except onlywith respect to original incorporation.



imperium in imperio. Local government in such a system can only mean a measure of decentralization of the functionof government. (emphasis supplied)

As to what state powers should be "decentralized" and what may be delegated to localgovernment units remains a matter of policy, which concerns wisdom. It is therefore apolitical question. (Citizens Alliance for Consumer Protection v. Energy Regulatory

Board, 162 SCRA 539).

What is settled is that the matter of regulating, taxing or otherwise dealing with gamblingis a State concern and hence, it is the sole prerogative of the State to retain it ordelegate it to local governments.

As gambling is usually an offense against the State, legislative grant or express charter power is generally necessary toempower the local corporation to deal with the subject . . . . In the absence of express grant of power to enact,ordinance provisions on this subject which are inconsistent with the state laws are void . (Ligan v. Gadsden, Ala App.107 So. 733 Ex-Parte Solomon, 9, Cals. 440, 27 PAC 757 following in re Ah You, 88 Cal. 99, 25 PAC 974, 22 Am St.Rep. 280, 11 LRA 480, as cited in Mc Quinllan Vol. 3 Ibid , p. 548, emphasis supplied)

Petitioners next contend that P.D. 1869 violates the equal protection clause of the

Constitution, because "it legalized PAGCOR — conducted gambling, while mostgambling are outlawed together with prostitution, drug trafficking and other vices" (p. 82,Rollo).

We, likewise, find no valid ground to sustain this contention. The petitioners' postureignores the well-accepted meaning of the clause "equal protection of the laws." Theclause does not preclude classification of individuals who may be accorded differenttreatment under the law as long as the classification is not unreasonable or arbitrary(Itchong v. Hernandez, 101 Phil. 1155). A law does not have to operate in equal forceon all persons or things to be conformable to Article III, Section 1 of the Constitution(DECS v. San Diego, G.R. No. 89572, December 21, 1989).

The "equal protection clause" does not prohibit the Legislature from establishing classesof individuals or objects upon which different rules shall operate (Laurel v. Misa, 43 O.G.2847). The Constitution does not require situations which are different in fact or opinionto be treated in law as though they were the same (Gomez v. Palomar, 25 SCRA 827).

Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of theequal protection is not clearly explained in the petition. The mere fact that somegambling activities like cockfighting (P.D 449) horse racing (R.A. 306 as amended byRA 983), sweepstakes, lotteries and races (RA 1169 as amended by B.P. 42) arelegalized under certain conditions, while others are prohibited, does not render the

applicable laws, P.D. 1869 for one, unconstitutional.

If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances towhich it might have been applied. (Gomez v. Palomar, 25 SCRA 827)

The equal protection clause of the 14th Amendment does not mean that all occupations called by the same name mustbe treated the same way; the state may do what it can to prevent which is deemed as evil and stop short of thosecases in which harm to the few concerned is not less than the harm to the public that would insure if the rule laid downwere made mathematically exact. (Dominican Hotel v. Arizona, 249 US 2651).



Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the CoryGovernment away from monopolies and crony economy and toward free enterprise andprivatization" suffice it to state that this is not a ground for this Court to nullify P.D. 1869.If, indeed, PD 1869 runs counter to the government's policies then it is for the ExecutiveDepartment to recommend to Congress its repeal or amendment.

The judiciary does not settle policy issues. The Court can only declare what the law is and not what the law should be.Under our system of government, policy issues are within the domain of the political branches of government and of thepeople themselves as the repository of all state power. (Valmonte v. Belmonte, Jr., 170 SCRA 256).

On the issue of "monopoly," however, the Constitution provides that:

Sec. 19. The State shall regulate or prohibit monopolies when public interest so requires. No combinations in restraintof trade or unfair competition shall be allowed. (Art. XII, National Economy and Patrimony)

It should be noted that, as the provision is worded, monopolies are not necessarilyprohibited by the Constitution. The state must still decide whether public interestdemands that monopolies be regulated or prohibited. Again, this is a matter of policy for

the Legislature to decide.

On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity) 12(Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIIIand Section 2 (Educational Values) of Article XIV of the 1987 Constitution, suffice it tostate also that these are merely statements of principles and, policies. As such, they arebasically not self-executing, meaning a law should be passed by Congress to clearlydefine and effectuate such principles.

In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for enforcementthrough the courts. They were rather directives addressed to the executive and the legislature. If the executive and thelegislature failed to heed the directives of the articles the available remedy was not judicial or political. The electoratecould express their displeasure with the failure of the executive and the legislature through the language of the ballot.

(Bernas, Vol. II, p. 2)

Every law has in its favor the presumption of constitutionality (Yu Cong Eng v. Trinidad,47 Phil. 387; Salas v. Jarencio, 48 SCRA 734; Peralta v. Comelec, 82 SCRA 30; Abbasv. Comelec, 179 SCRA 287). Therefore, for PD 1869 to be nullified, it must be shownthat there is a clear and unequivocal breach of the Constitution, not merely a doubtfuland equivocal one. In other words, the grounds for nullity must be clear and beyondreasonable doubt. (Peralta v. Comelec, supra) Those who petition this Court to declarea law, or parts thereof, unconstitutional must clearly establish the basis for such adeclaration. Otherwise, their petition must fail. Based on the grounds raised bypetitioners to challenge the constitutionality of P.D. 1869, the Court finds that petitioners

have failed to overcome the presumption. The dismissal of this petition is therefore,inevitable. But as to whether P.D. 1869 remains a wise legislation considering theissues of "morality, monopoly, trend to free enterprise, privatization as well as the stateprinciples on social justice, role of youth and educational values" being raised, is up forCongress to determine.

As this Court held in Citizens' Alliance for Consumer Protection v . Energy RegulatoryBoard , 162 SCRA 521 —



Presidential Decree No. 1956, as amended by Executive Order No. 137 has, in any case, in its favor the presumptionof validity and constitutionality which petitioners Valmonte and the KMU have not overturned. Petitioners have notundertaken to identify the provisions in the Constitution which they claim to have been violated by that statute. ThisCourt, however, is not compelled to speculate and to imagine how the assailed legislation may possibly offend someprovision of the Constitution. The Court notes, further, in this respect that petitioners have in the main put in questionthe wisdom, justice and expediency of the establishment of the OPSF, issues which are not properly addressed to thisCourt and which this Court may not constitutionally pass upon. Those issues should be addressed rather to the politicaldepartments of government: the President and the Congress.

Parenthetically, We wish to state that gambling is generally immoral, and this isprecisely so when the gambling resorted to is excessive. This excessivenessnecessarily depends not only on the financial resources of the gambler and his familybut also on his mental, social, and spiritual outlook on life. However, the mere fact thatsome persons may have lost their material fortunes, mental control, physical health, oreven their lives does not necessarily mean that the same are directly attributable togambling. Gambling may have been the antecedent , but certainly not necessarily thecause. For the same consequences could have been preceded by an overdose of food,drink, exercise, work, and even sex.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Bidin, Sarmiento,Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

Separate Opinions

PADILLA, J., concurring:

I concur in the result of the learned decision penned by my brother Mr. Justice Paras.This means that I agree with the decision insofar as it holds that the prohibition, control,and regulation of the entire activity known as gambling properly pertain to "state policy ."

It is, therefore, the political departments of government, namely, the legislative and theexecutive that should decide on what government should do in the entire area ofgambling, and assume full responsibility to the people for such policy.

The courts, as the decision states, cannot inquire into the wisdom, morality orexpediency of policies adopted by the political departments of government in areaswhich fall within their authority, except only when such policies pose a clear and present



danger to the life, liberty or property of the individual. This case does not involve such afactual situation.

However, I hasten to make of record that I do not subscribe to gambling in any form. Itdemeans the human personality, destroys self-confidence and eviscerates one's self-

respect, which in the long run will corrode whatever is left of the Filipino moralcharacter. Gambling has wrecked and will continue to wreck families and homes; it is anantithesis to individual reliance and reliability as well as personal industry which are thetouchstones of real economic progress and national development.

Gambling is reprehensible whether maintained by government or privatized. Therevenues realized by the government out of "legalized" gambling will, in the long run, bemore than offset and negated by the irreparable damage to the people's moral values.

Also, the moral standing of the government in its repeated avowals against "illegalgambling" is fatally flawed and becomes untenable when it itself engages in the very

activity it seeks to eradicate.

One can go through the Court's decision today and mentally replace the activity referredto therein as gambling , which is legal only because it is authorized by law and run bythe government, with the activity known as prostitution. Would prostitution be any lessreprehensible were it to be authorized by law, franchised, and "regulated" by thegovernment, in return for the substantial revenues it would yield the government to carryout its laudable projects, such as infrastructure and social amelioration? The question, Ibelieve, answers itself. I submit that the sooner the legislative department outlaws allforms of gambling, as a fundamental state policy , and the sooner the executiveimplements such policy, the better it will be for the nation.

Melencio-Herrera, J., concur.

Separate Opinions

PADILLA, J., concurring:

I concur in the result of the learned decision penned by my brother Mr. Justice Paras.This means that I agree with the decision insofar as it holds that the prohibition, control,

and regulation of the entire activity known as gambling properly pertain to "state policy ."It is, therefore, the political departments of government, namely, the legislative and theexecutive that should decide on what government should do in the entire area ofgambling, and assume full responsibility to the people for such policy.

The courts, as the decision states, cannot inquire into the wisdom, morality orexpediency of policies adopted by the political departments of government in areaswhich fall within their authority, except only when such policies pose a clear and present



danger to the life, liberty or property of the individual. This case does not involve such afactual situation.

However, I hasten to make of record that I do not subscribe to gambling in any form. Itdemeans the human personality, destroys self-confidence and eviscerates one's self-

respect, which in the long run will corrode whatever is left of the Filipino moralcharacter. Gambling has wrecked and will continue to wreck families and homes; it is anantithesis to individual reliance and reliability as well as personal industry which are thetouchstones of real economic progress and national development.

Gambling is reprehensible whether maintained by government or privatized. Therevenues realized by the government out of "legalized" gambling will, in the long run, bemore than offset and negated by the irreparable damage to the people's moral values.

Also, the moral standing of the government in its repeated avowals against "illegalgambling" is fatally flawed and becomes untenable when it itself engages in the very

activity it seeks to eradicate.

One can go through the Court's decision today and mentally replace the activity referredto therein as gambling , which is legal only because it is authorized by law and run bythe government, with the activity known as prostitution. Would prostitution be any lessreprehensible were it to be authorized by law, franchised, and "regulated" by thegovernment, in return for the substantial revenues it would yield the government to carryout its laudable projects, such as infrastructure and social amelioration? The question, Ibelieve, answers itself. I submit that the sooner the legislative department outlaws allforms of gambling, as a fundamental state policy , and the sooner the executiveimplements such policy, the better it will be for the nation.

Melencio-Herrera, J., concurs.

G.R. No. 111097 July 20, 1994

MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE ORO, petitioners,vs.PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE AMUSEMENT ANDGAMING CORPORATION, respondents.

Aquilino G. Pimentel, Jr. and Associates for petitioners.

R.R. Torralba & Associates for private respondent.

CRUZ, J.:



There was instant opposition when PAGCOR announced the opening of a casino inCagayan de Oro City. Civic organizations angrily denounced the project. The religiouselements echoed the objection and so did the women's groups and the youth.Demonstrations were led by the mayor and the city legislators. The media trumpetedthe protest, describing the casino as an affront to the welfare of the city.

The trouble arose when in 1992, flush with its tremendous success in several cities,PAGCOR decided to expand its operations to Cagayan de Oro City. To this end, itleased a portion of a building belonging to Pryce Properties Corporation, Inc., one of theherein private respondents, renovated and equipped the same, and prepared toinaugurate its casino there during the Christmas season.

The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift andhostile. On December 7, 1992, it enacted Ordinance No. 3353 reading as follows:

ORDINANCE NO. 3353

AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS PERMIT ANDCANCELLING EXISTING BUSINESS PERMIT TO ANY ESTABLISHMENT FOR THEUSING AND ALLOWING TO BE USED ITS PREMISES OR PORTION THEREOF FORTHE OPERATION OF CASINO.

BE IT ORDAINED by the Sangguniang Panlungsod of the City of Cagayan de Oro, insession assembled that:

Sec. 1. — That pursuant to the policy of the city banning the operation of casino within itsterritorial jurisdiction, no business permit shall be issued to any person, partnership orcorporation for the operation of casino within the city limits.

Sec. 2. — That it shall be a violation of existing business permit by any persons,partnership or corporation to use its business establishment or portion thereof, or allowthe use thereof by others for casino operation and other gambling activities.

Sec. 3. — PENALTIES. — Any violation of such existing business permit as defined inthe preceding section shall suffer the following penalties, to wit:

a) Suspension of the business permit for sixty (60) daysfor the first offense and a fine of P1,000.00/day

b) Suspension of the business permit for Six (6) monthsfor the second offense, and a fine of P3,000.00/day

c) Permanent revocation of the business permit andimprisonment of One (1) year, for the third andsubsequent offenses.

Sec. 4. — This Ordinance shall take effect ten (10) days from publication thereof.

Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93reading as follows:



ORDINANCE NO. 3375-93

AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND PROVIDINGPENALTY FOR VIOLATION THEREFOR.

WHEREAS, the City Council established a policy as early as 1990 against CASINO

under its Resolution No. 2295;

WHEREAS, on October 14, 1992, the City Council passed another Resolution No. 2673,reiterating its policy against the establishment of CASINO;

WHEREAS, subsequently, thereafter, it likewise passed Ordinance No. 3353, prohibitingthe issuance of Business Permit and to cancel existing Business Permit to anyestablishment for the using and allowing to be used its premises or portion thereof for theoperation of CASINO;

WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the Local GovernmentCode of 1991 (Rep. Act 7160) and under Art. 99, No. (4), Paragraph VI of theimplementing rules of the Local Government Code, the City Council as the Legislative

Body shall enact measure to suppress any activity inimical to public morals and generalwelfare of the people and/or regulate or prohibit such activity pertaining to amusement orentertainment in order to protect social and moral welfare of the community;

NOW THEREFORE,

BE IT ORDAINED by the City Council in session duly assembled that:

Sec. 1. — The operation of gambling CASINO in the City of Cagayan de Oro is herebyprohibited.

Sec. 2. — Any violation of this Ordinance shall be subject to the following penalties:

a) Administrative fine of P5,000.00 shall be imposed against the proprietor, partnership orcorporation undertaking the operation, conduct, maintenance of gambling CASINO in theCity and closure thereof;

b) Imprisonment of not less than six (6) months nor more than one (1) year or a fine inthe amount of P5,000.00 or both at the discretion of the court against the manager,supervisor, and/or any person responsible in the establishment, conduct andmaintenance of gambling CASINO.

Sec. 3. — This Ordinance shall take effect ten (10) days after its publication in a localnewspaper of general circulation.

Pryce assailed the ordinances before the Court of Appeals, where it was joined byPAGCOR as intervenor and supplemental petitioner. Their challenge succeeded. OnMarch 31, 1993, the Court of Appeals declared the ordinances invalid and issued thewrit prayed for to prohibit their enforcement. 1

Reconsideration of this decision wasdenied on July 13, 1993. 2



Cagayan de Oro City and its mayor are now before us in this petition for review underRule 45 of the Rules of Court. 3

They aver that the respondent Court of Appeals erred inholding that:

1. Under existing laws, the Sangguniang Panlungsod of the City of Cagayan de Oro doesnot have the power and authority to prohibit the establishment and operation of a

PAGCOR gambling casino within the City's territorial limits.

2. The phrase "gambling and other prohibited games of chance" found in Sec. 458, par.(a), sub-par. (1) — (v) of R.A. 7160 could only mean "illegal gambling."

3. The questioned Ordinances in effect annul P.D. 1869 and are therefore invalid on thatpoint.

4. The questioned Ordinances are discriminatory to casino and partial to cockfighting andare therefore invalid on that point.

5. The questioned Ordinances are not reasonable, not consonant with the general

powers and purposes of the instrumentality concerned and inconsistent with the laws orpolicy of the State.

6. It had no option but to follow the ruling in the case of Basco, et al. v. PAGCOR, G.R.No. 91649, May 14, 1991, 197 SCRA 53 in disposing of the issues presented in thispresent case.

PAGCOR is a corporation created directly by P.D. 1869 to help centralize and regulateall games of chance, including casinos on land and sea within the territorial jurisdictionof the Philippines. In Basco v. Philippine Amusements and Gaming Corporation, 4

thisCourt sustained the constitutionality of the decree and even cited the benefits of theentity to the national economy as the third highest revenue-earner in the government,

next only to the BIR and the Bureau of Customs.

Cagayan de Oro City, like other local political subdivisions, is empowered to enactordinances for the purposes indicated in the Local Government Code. It is expresslyvested with the police power under what is known as the General Welfare Clause nowembodied in Section 16 as follows:

Sec. 16. — General Welfare. — Every local government unit shall exercise the powersexpressly granted, those necessarily implied therefrom, as well as powers necessary,appropriate, or incidental for its efficient and effective governance, and those which areessential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the

preservation and enrichment of culture, promote health and safety, enhance the right ofthe people to a balanced ecology, encourage and support the development ofappropriate and self-reliant scientific and technological capabilities, improve publicmorals, enhance economic prosperity and social justice, promote full employment amongtheir residents, maintain peace and order, and preserve the comfort and convenience oftheir inhabitants.

In addition, Section 458 of the said Code specifically declares that:



Sec. 458. — Powers, Duties, Functions and Compensation. — (a) The SangguniangPanlungsod, as the legislative body of the city, shall enact ordinances, approveresolutions and appropriate funds for the general welfare of the city and its inhabitantspursuant to Section 16 of this Code and in the proper exercise of the corporate powers ofthe city as provided for under Section 22 of this Code, and shall:

(1) Approve ordinances and pass resolutions necessary for an efficient and effective citygovernment, and in this connection, shall:

xxx xxx xxx

(v) Enact ordinances intended to prevent, suppress andimpose appropriate penalties for habitual drunkenness inpublic places, vagrancy, mendicancy, prostitution,establishment and maintenance of houses of ill repute,gambling and other prohibited games of chance,fraudulent devices and ways to obtain money orproperty, drug addiction, maintenance of drug dens, drugpushing, juvenile delinquency, the printing, distribution or

exhibition of obscene or pornographic materials orpublications, and such other activities inimical to thewelfare and morals of the inhabitants of the city;

This section also authorizes the local government units to regulate properties andbusinesses within their territorial limits in the interest of the general welfare. 5

The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsodmay prohibit the operation of casinos because they involve games of chance, which aredetrimental to the people. Gambling is not allowed by general law and even by theConstitution itself. The legislative power conferred upon local government units may beexercised over all kinds of gambling and not only over "illegal gambling" as therespondents erroneously argue. Even if the operation of casinos may have beenpermitted under P.D. 1869, the government of Cagayan de Oro City has the authority toprohibit them within its territory pursuant to the authority entrusted to it by the LocalGovernment Code.

It is submitted that this interpretation is consonant with the policy of local autonomy asmandated in Article II, Section 25, and Article X of the Constitution, as well as variousother provisions therein seeking to strengthen the character of the nation. In giving thelocal government units the power to prevent or suppress gambling and other socialproblems, the Local Government Code has recognized the competence of suchcommunities to determine and adopt the measures best expected to promote thegeneral welfare of their inhabitants in line with the policies of the State.

The petitioners also stress that when the Code expressly authorized the localgovernment units to prevent and suppress gambling and other prohibited games ofchance, like craps, baccarat, blackjack and roulette, it meant all forms of gamblingwithout distinction. Ubi lex non distinguit, nec nos distinguere debemos. 6

Otherwise, itwould have expressly excluded from the scope of their power casinos and other formsof gambling authorized by special law, as it could have easily done. The fact that it did



not do so simply means that the local government units are permitted to prohibit allkinds of gambling within their territories, including the operation of casinos.

The adoption of the Local Government Code, it is pointed out, had the effect ofmodifying the charter of the PAGCOR. The Code is not only a later enactment than P.D.

1869 and so is deemed to prevail in case of inconsistencies between them. More thanthis, the powers of the PAGCOR under the decree are expressly discontinued by theCode insofar as they do not conform to its philosophy and provisions, pursuant to Par.(f) of its repealing clause reading as follows:

(f) All general and special laws, acts, city charters, decrees, executive orders,proclamations and administrative regulations, or part or parts thereof which areinconsistent with any of the provisions of this Code are hereby repealed or modifiedaccordingly.

It is also maintained that assuming there is doubt regarding the effect of the LocalGovernment Code on P.D. 1869, the doubt must be resolved in favor of the petitioners,

in accordance with the direction in the Code calling for its liberal interpretation in favor ofthe local government units. Section 5 of the Code specifically provides:

Sec. 5. Rules of Interpretation. — In the interpretation of the provisions of this Code, thefollowing rules shall apply:

(a) Any provision on a power of a local government unit shall be liberally interpreted in itsfavor, and in case of doubt, any question thereon shall be resolved in favor of devolutionof powers and of the lower local government unit . Any fair and reasonable doubt as to theexistence of the power shall be interpreted in favor of the local government unitconcerned;

xxx xxx xxx (c) The general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgradingthe quality of life for the people in the community; . . . (Emphasis supplied.)

Finally, the petitioners also attack gambling as intrinsically harmful and cite variousprovisions of the Constitution and several decisions of this Court expressive of thegeneral and official disapprobation of the vice. They invoke the State policies on thefamily and the proper upbringing of the youth and, as might be expected, call attentionto the old case of U.S. v. Salaveria, 7

which sustained a municipal ordinance prohibitingthe playing of panguingue. The petitioners decry the immorality of gambling. They also

impugn the wisdom of P.D. 1869 (which they describe as "a martial law instrument") increating PAGCOR and authorizing it to operate casinos "on land and sea within theterritorial jurisdiction of the Philippines."

This is the opportune time to stress an important point.

The morality of gambling is not a justiciable issue. Gambling is not illegal per se. While itis generally considered inimical to the interests of the people, there is nothing in the



Constitution categorically proscribing or penalizing gambling or, for that matter, evenmentioning it at all. It is left to Congress to deal with the activity as it sees fit. In theexercise of its own discretion, the legislature may prohibit gambling altogether or allow itwithout limitation or it may prohibit some forms of gambling and allow others forwhatever reasons it may consider sufficient. Thus, it has prohibited jueteng and monte

but permits lotteries, cockfighting and horse-racing. In making such choices, Congresshas consulted its own wisdom, which this Court has no authority to review, much lessreverse. Well has it been said that courts do not sit to resolve the merits of conflictingtheories. 8

That is the prerogative of the political departments. It is settled that questionsregarding the wisdom, morality, or practicibility of statutes are not addressed to the

judiciary but may be resolved only by the legislative and executive departments, towhich the function belongs in our scheme of government. That function is exclusive.Whichever way these branches decide, they are answerable only to their ownconscience and the constituents who will ultimately judge their acts, and not to thecourts of justice.

The only question we can and shall resolve in this petition is the validity of OrdinanceNo. 3355 and Ordinance No. 3375-93 as enacted by the Sangguniang Panlungsod ofCagayan de Oro City. And we shall do so only by the criteria laid down by law and notby our own convictions on the propriety of gambling.

The tests of a valid ordinance are well established. A long line of decisions 9 has held

that to be valid, an ordinance must conform to the following substantive requirements:

1) It must not contravene the constitution or any statute.

2) It must not be unfair or oppressive.

3) It must not be partial or discriminatory.

4) It must not prohibit but may regulate trade.

5) It must be general and consistent with public policy.

6) It must not be unreasonable.

We begin by observing that under Sec. 458 of the Local Government Code, localgovernment units are authorized to prevent or suppress, among others, "gambling andother prohibited games of chance." Obviously, this provision excludes games of chance

which are not prohibited but are in fact permitted by law. The petitioners are less thanaccurate in claiming that the Code could have excluded such games of chance but didnot. In fact it does. The language of the section is clear and unmistakable. Under therule of noscitur a sociis, a word or phrase should be interpreted in relation to, or giventhe same meaning of, words with which it is associated. Accordingly, we conclude thatsince the word "gambling" is associated with "and other prohibited games of chance,"the word should be read as referring to only illegal gambling which, like the otherprohibited games of chance, must be prevented or suppressed.



We could stop here as this interpretation should settle the problem quite conclusively.But we will not. The vigorous efforts of the petitioners on behalf of the inhabitants ofCagayan de Oro City, and the earnestness of their advocacy, deserve more than shortshrift from this Court.

The apparent flaw in the ordinances in question is that they contravene P.D. 1869 andthe public policy embodied therein insofar as they prevent PAGCOR from exercising thepower conferred on it to operate a casino in Cagayan de Oro City. The petitioners havean ingenious answer to this misgiving. They deny that it is the ordinances that havechanged P.D. 1869 for an ordinance admittedly cannot prevail against a statute. Theirtheory is that the change has been made by the Local Government Code itself, whichwas also enacted by the national lawmaking authority. In their view, the decree hasbeen, not really repealed by the Code, but merely "modified pro tanto" in the sense thatPAGCOR cannot now operate a casino over the objection of the local government unitconcerned. This modification of P.D. 1869 by the Local Government Code ispermissible because one law can change or repeal another law.

It seems to us that the petitioners are playing with words. While insisting that the decreehas only been "modified pro tanto," they are actually arguing that it is already dead,repealed and useless for all intents and purposes because the Code has shornPAGCOR of all power to centralize and regulate casinos. Strictly speaking, itsoperations may now be not only prohibited by the local government unit; in fact, theprohibition is not only discretionary but mandated by Section 458 of the Code if the word"shall" as used therein is to be given its accepted meaning. Local government unitshave now no choice but to prevent and suppress gambling, which in the petitioners'view includes both legal and illegal gambling. Under this construction, PAGCOR willhave no more games of chance to regulate or centralize as they must all be prohibited

by the local government units pursuant to the mandatory duty imposed upon them bythe Code. In this situation, PAGCOR cannot continue to exist except only as a toothlesstiger or a white elephant and will no longer be able to exercise its powers as a primesource of government revenue through the operation of casinos.

It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause,conveniently discarding the rest of the provision which painstakingly mentions thespecific laws or the parts thereof which are repealed (or modified) by the Code.Significantly, P.D. 1869 is not one of them. A reading of the entire repealing clause,which is reproduced below, will disclose the omission:

Sec. 534. Repealing Clause. — (a) Batas Pambansa Blg. 337, otherwise known as the

"Local Government Code," Executive Order No. 112 (1987), and Executive Order No.319 (1988) are hereby repealed.

(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders,instructions, memoranda and issuances related to or concerning the barangay are herebyrepealed.

(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospitalfund; Section 3, a (3) and b (2) of Republic Act. No. 5447 regarding the Special



Education Fund; Presidential Decree No. 144 as amended by Presidential Decree Nos.559 and 1741; Presidential Decree No. 231 as amended; Presidential Decree No. 436 asamended by Presidential Decree No. 558; and Presidential Decree Nos. 381, 436, 464,477, 526, 632, 752, and 1136 are hereby repealed and rendered of no force and effect.

(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded

projects. (e) The following provisions are hereby repealed or amended insofar as they areinconsistent with the provisions of this Code: Sections 2, 16, and 29 of PresidentialDecree No. 704; Sections 12 of Presidential Decree No. 87, as amended; Sections 52,53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as amended;and Section 16 of Presidential Decree No. 972, as amended, and

(f) All general and special laws, acts, city charters, decrees, executive orders,proclamations and administrative regulations, or part or parts thereof which areinconsistent with any of the provisions of this Code are hereby repealed or modifiedaccordingly.

Furthermore, it is a familiar rule that implied repeals are not lightly presumed in theabsence of a clear and unmistakable showing of such intention. In Lichauco & Co. v.

Apostol , 10 this Court explained:

The cases relating to the subject of repeal by implication all proceed on the assumptionthat if the act of later date clearly reveals an intention on the part of the lawmaking powerto abrogate the prior law, this intention must be given effect; but there must always be asufficient revelation of this intention, and it has become an unbending rule of statutoryconstruction that the intention to repeal a former law will not be imputed to the Legislaturewhen it appears that the two statutes, or provisions, with reference to which the questionarises bear to each other the relation of general to special.

There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary, asthe private respondent points out, PAGCOR is mentioned as the source of funding intwo later enactments of Congress, to wit, R.A. 7309, creating a Board of Claims underthe Department of Justice for the benefit of victims of unjust punishment or detention orof violent crimes, and R.A. 7648, providing for measures for the solution of the powercrisis. PAGCOR revenues are tapped by these two statutes. This would show that thePAGCOR charter has not been repealed by the Local Government Code but has in factbeen improved as it were to make the entity more responsive to the fiscal problems ofthe government.

It is a canon of legal hermeneutics that instead of pitting one statute against another in

an inevitably destructive confrontation, courts must exert every effort to reconcile them,remembering that both laws deserve a becoming respect as the handiwork of acoordinate branch of the government. On the assumption of a conflict between P.D.1869 and the Code, the proper action is not to uphold one and annul the other but togive effect to both by harmonizing them if possible. This is possible in the case beforeus. The proper resolution of the problem at hand is to hold that under the LocalGovernment Code, local government units may (and indeed must) prevent andsuppress all kinds of gambling within their territories except only those allowed by



statutes like P.D. 1869. The exception reserved in such laws must be read into theCode, to make both the Code and such laws equally effective and mutuallycomplementary.

This approach would also affirm that there are indeed two kinds of gambling, to wit, the

illegal and those authorized by law. Legalized gambling is not a modern concept; it isprobably as old as illegal gambling, if not indeed more so. The petitioners' suggestionthat the Code authorizes them to prohibit all kinds of gambling would erase thedistinction between these two forms of gambling without a clear indication that this is thewill of the legislature. Plausibly, following this theory, the City of Manila could, by mereordinance, prohibit the Philippine Charity Sweepstakes Office from conducting a lotteryas authorized by R.A. 1169 and B.P. 42 or stop the races at the San LazaroHippodrome as authorized by R.A. 309 and R.A. 983.

In light of all the above considerations, we see no way of arriving at the conclusionurged on us by the petitioners that the ordinances in question are valid. On the contrary,

we find that the ordinances violate P.D. 1869, which has the character and force of astatute, as well as the public policy expressed in the decree allowing the playing ofcertain games of chance despite the prohibition of gambling in general.

The rationale of the requirement that the ordinances should not contravene a statute isobvious. Municipal governments are only agents of the national government. Localcouncils exercise only delegated legislative powers conferred on them by Congress asthe national lawmaking body. The delegate cannot be superior to the principal orexercise powers higher than those of the latter. It is a heresy to suggest that the localgovernment units can undo the acts of Congress, from which they have derived theirpower in the first place, and negate by mere ordinance the mandate of the statute.

Municipal corporations owe their origin to, and derive their powers and rights wholly fromthe legislature. It breathes into them the breath of life, without which they cannot exist. Asit creates, so it may destroy. As it may destroy, it may abridge and control. Unless thereis some constitutional limitation on the right, the legislature might, by a single act, and ifwe can suppose it capable of so great a folly and so great a wrong, sweep from existenceall of the municipal corporations in the State, and the corporation could not prevent it. Weknow of no limitation on the right so far as to the corporation themselves are concerned.They are, so to phrase it, the mere tenants at will of the legislature.

11

This basic relationship between the national legislature and the local government unitshas not been enfeebled by the new provisions in the Constitution strengthening thepolicy of local autonomy. Without meaning to detract from that policy, we here confirm

that Congress retains control of the local government units although in significantlyreduced degree now than under our previous Constitutions. The power to create stillincludes the power to destroy. The power to grant still includes the power to withhold orrecall. True, there are certain notable innovations in the Constitution, like the directconferment on the local government units of the power to tax, 12

which cannot now bewithdrawn by mere statute. By and large, however, the national legislature is still theprincipal of the local government units, which cannot defy its will or modify or violate it.



I.

It must at once be noted that private respondent Pryce Properties Corporation (PRYCE)directly filed with the Court of Appeals its so-called petition for prohibition, therebyinvoking the said court's original jurisdiction to issue writs of prohibition under Section

9(1) of B.P. Blg. 129. As I see it, however, the principal cause of action therein is one fordeclaratory relief: to declare null and unconstitutional — for, inter alia, having beenenacted without or in excess of jurisdiction, for impairing the obligation of contracts, andfor being inconsistent with public policy — the challenged ordinances enacted by theSangguniang Panglungsod of the City of Cagayan de Oro. The intervention therein ofpublic respondent Philippine Amusement and Gaming Corporation (PAGCOR) furtherunderscores the "declaratory relief" nature of the action. PAGCOR assails theordinances for being contrary to the non-impairment and equal protection clauses of theConstitution, violative of the Local Government Code, and against the State's nationalpolicy declared in P.D. No. 1869. Accordingly, the Court of Appeals does not have

jurisdiction over the nature of the action. Even assuming arguendo that the case is one

for prohibition, then, under this Court's established policy relative to the hierarchy ofcourts, the petition should have been filed with the Regional Trial Court of Cagayan deOro City. I find no special or compelling reason why it was not filed with the said court. Ido not wish to entertain the thought that PRYCE doubted a favorable verdict therefrom,in which case the filing of the petition with the Court of Appeals may have been impelledby tactical considerations. A dismissal of the petition by the Court of Appeals wouldhave been in order pursuant to our decisions in People vs. Cuaresma (172 SCRA 415,[1989]) and Defensor-Santiago vs. Vasquez (217 SCRA 633 [1993]). In Cuaresma, thisCourt stated:

A last word. This court's original jurisdiction to issue writs of certiorari (as well asprohibition, mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is

shared by this Court with Regional Trial Courts (formerly Courts of First Instance), whichmay issue the writ, enforceable in any part of their respective regions. It is also shared bythis court, and by the Regional Trial Court, with the Court of Appeals (formerly,Intermediate Appellate Court), although prior to the effectivity of Batas Pambansa Bilang129 on August 14, 1981, the latter's competence to issue the extraordinary writs wasrestricted by those "in aid of its appellate jurisdiction." This concurrence of jurisdiction isnot, however, to be taken as according to parties seeking any of the writs an absolute,unrestrained freedom of choice of the court to which application therefor will be directed.There is after all a hierarchy of courts. That hierarchy is determinative of the revenue ofappeals, and should also serve as a general determinant of the appropriate forum forpetitions for the extraordinary writs. A becoming regard for that judicial hierarchy mostcertainly indicates that petitions for the issuance of extraordinary writs against first level("inferior") courts should be filed with the Regional Trial Court, and those against the

latter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special andimportant reasons therefor, clearly and specifically set out in the petition. This isestablished policy. It is a policy that is necessary to prevent inordinate demands upon theCourt's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket. Indeed, theremoval of the restriction of the jurisdiction of the Court of Appeals in this regard, supra — resulting from the deletion of the qualifying phrase, "in aid of its appellate jurisdiction"— was evidently intended precisely to relieve this Court pro tanto of the burden of dealing



with applications for extraordinary writs which, but for the expansion of the AppellateCourt's corresponding jurisdiction, would have had to be filed with it. (citations omitted)

And in Vasquez , this Court said:

One final observation. We discern in the proceedings in this case a propensity on the part

of petitioner, and, for that matter, the same may be said of a number of litigants whoinitiate recourses before us, to disregard the hierarchy of courts in our judicial system byseeking relief directly from this Court despite the fact that the same is available in thelower courts in the exercise of their original or concurrent jurisdiction, or is evenmandated by law to be sought therein. This practice must be stopped, not only becauseof the imposition upon the previous time of this Court but also because of the inevitableand resultant delay, intended or otherwise, in the adjudication of the case which often hasto be remanded or referred to the lower court as the proper forum under the rules ofprocedure, or as better equipped to resolve the issues since this Court is not a trier offacts. We, therefore, reiterate the judicial policy that this Court will not entertain directresort to it unless the redress desired cannot be obtained in the appropriate courts orwhere exceptional and compelling circumstances justify availment of a remedy within andcalling for the exercise of our primary jurisdiction.

II.

The challenged ordinances are (a) Ordinance No. 3353 entitled, " An OrdinanceProhibiting the Issuance of Business Permit and Canceling Existing Business Permit To

Any Establishment for the Using and Allowing to be Used Its Premises or PortionThereof for the Operation of Casino," and (b) Ordinance No. 3375-93 entitled, " AnOrdinance Prohibiting the Operation of Casino and Providing Penalty for ViolationTherefor ." They were enacted to implement Resolution No. 2295 entitled, "ResolutionDeclaring As a Matter of Policy to Prohibit and/or Not to Allow the Establishment of theGambling Casino in the City of Cagayan de Oro," which was promulgated on 19

November 1990 — nearly two years before PRYCE and PAGCOR entered into acontract of lease under which the latter leased a portion of the former's Pryce PlazaHotel for the operation of a gambling casino — which resolution was vigorouslyreiterated in Resolution No. 2673 of 19 October 1992.

The challenged ordinances were enacted pursuant to the Sangguniang Panglungsod'sexpress powers conferred by Section 458, paragraph (a), subparagraphs (1)-(v), (3)-(ii),and (4)-(i), (iv), and (vii), Local Government Code, and pursuant to its implied powerunder Section 16 thereof (the general welfare clause) which reads:

Sec. 16. General Welfare. — Every local government unit shall exercise the powers

expressly granted, those necessarily implied therefrom, as well as powers necessary,appropriate, or incidental for its efficient and effective governance, and those which areessential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, thepreservation and enrichment of culture, promote health and safety, enhance the right ofthe people to a balanced ecology, encourage and support the development ofappropriate and self-reliant scientific and technological capabilities, improve publicmorals, enhance economic prosperity and social justice, promote full employment amongtheir residents, maintain peace and order, and preserve the comfort and convenience oftheir inhabitants.



However, despite the legality of the opening and operation of a casino in Cagayan deOro City by respondent PAGCOR, I wish to reiterate my view that gambling in any formruns counter to the government's own efforts to re-establish and resurrect the Filipinomoral character which is generally perceived to be in a state of continuing erosion.

It is in the light of this alarming perspective that I call upon government to carefullyweigh the advantages and disadvantages of setting up more gambling facilities in thecountry.

That the PAGCOR contributes greatly to the coffers of the government is not enoughreason for setting up more gambling casinos because, undoubtedly, this will not helpimprove, but will cause a further deterioration in the Filipino moral character.

It is worth remembering in this regard that, 1) what is legal is not always moral and 2)the ends do not always justify the means.

As in Basco, I can easily visualize prostitution at par with gambling . And yet, legalizationof the former will not render it any less reprehensible even if substantial revenue for thegovernment can be realized from it. The same is true of gambling.

In the present case, it is my considered view that the national government (throughPAGCOR) should re-examine and re-evaluate its decision of imposing the gamblingcasino on the residents of Cagayan de Oro City; for it is abundantly clear that publicopinion in the city is very much against it, and again the question must be seriouslydeliberated: will the prospects of revenue to be realized from the casino outweigh thefurther destruction of the Filipino sense of values?

DAVIDE, JR., J., concurring:

While I concur in part with the majority, I wish, however, to express my views on certainaspects of this case.

I.

It must at once be noted that private respondent Pryce Properties Corporation (PRYCE)directly filed with the Court of Appeals its so-called petition for prohibition, therebyinvoking the said court's original jurisdiction to issue writs of prohibition under Section9(1) of B.P. Blg. 129. As I see it, however, the principal cause of action therein is one for

declaratory relief: to declare null and unconstitutional — for, inter alia, having beenenacted without or in excess of jurisdiction, for impairing the obligation of contracts, andfor being inconsistent with public policy — the challenged ordinances enacted by theSangguniang Panglungsod of the City of Cagayan de Oro. The intervention therein ofpublic respondent Philippine Amusement and Gaming Corporation (PAGCOR) furtherunderscores the "declaratory relief" nature of the action. PAGCOR assails theordinances for being contrary to the non-impairment and equal protection clauses of theConstitution, violative of the Local Government Code, and against the State's national



policy declared in P.D. No. 1869. Accordingly, the Court of Appeals does not have jurisdiction over the nature of the action. Even assuming arguendo that the case is onefor prohibition, then, under this Court's established policy relative to the hierarchy ofcourts, the petition should have been filed with the Regional Trial Court of Cagayan deOro City. I find no special or compelling reason why it was not filed with the said court. I

do not wish to entertain the thought that PRYCE doubted a favorable verdict therefrom,in which case the filing of the petition with the Court of Appeals may have been impelledby tactical considerations. A dismissal of the petition by the Court of Appeals wouldhave been in order pursuant to our decisions in People vs. Cuaresma (172 SCRA 415,[1989]) and Defensor-Santiago vs. Vasquez (217 SCRA 633 [1993]). In Cuaresma, thisCourt stated:

A last word. This court's original jurisdiction to issue writs of certiorari (as well asprohibition, mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It isshared by this Court with Regional Trial Courts (formerly Courts of First Instance), whichmay issue the writ, enforceable in any part of their respective regions. It is also shared bythis court, and by the Regional Trial Court, with the Court of Appeals (formerly,

Intermediate Appellate Court), although prior to the effectivity of Batas Pambansa Bilang129 on August 14, 1981, the latter's competence to issue the extraordinary writs wasrestricted by those "in aid of its appellate jurisdiction." This concurrence of jurisdiction isnot, however, to be taken as according to parties seeking any of the writs an absolute,unrestrained freedom of choice of the court to which application therefor will be directed.There is after all a hierarchy of courts. That hierarchy is determinative of the revenue ofappeals, and should also serve as a general determinant of the appropriate forum forpetitions for the extraordinary writs. A becoming regard for that judicial hierarchy mostcertainly indicates that petitions for the issuance of extraordinary writs against first level("inferior") courts should be filed with the Regional Trial Court, and those against thelatter, with the Court of Appeals. A direct invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only when there are special andimportant reasons therefor, clearly and specifically set out in the petition. This isestablished policy. It is a policy that is necessary to prevent inordinate demands upon theCourt's time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further over-crowding of the Court's docket. Indeed, theremoval of the restriction of the jurisdiction of the Court of Appeals in this regard, supra — resulting from the deletion of the qualifying phrase, "in aid of its appellate jurisdiction"— was evidently intended precisely to relieve this Court pro tanto of the burden of dealingwith applications for extraordinary writs which, but for the expansion of the AppellateCourt's corresponding jurisdiction, would have had to be filed with it. (citations omitted)

And in Vasquez , this Court said:

One final observation. We discern in the proceedings in this case a propensity on the partof petitioner, and, for that matter, the same may be said of a number of litigants who

initiate recourses before us, to disregard the hierarchy of courts in our judicial system byseeking relief directly from this Court despite the fact that the same is available in thelower courts in the exercise of their original or concurrent jurisdiction, or is evenmandated by law to be sought therein. This practice must be stopped, not only becauseof the imposition upon the previous time of this Court but also because of the inevitableand resultant delay, intended or otherwise, in the adjudication of the case which often hasto be remanded or referred to the lower court as the proper forum under the rules ofprocedure, or as better equipped to resolve the issues since this Court is not a trier offacts. We, therefore, reiterate the judicial policy that this Court will not entertain directresort to it unless the redress desired cannot be obtained in the appropriate courts or



where exceptional and compelling circumstances justify availment of a remedy within andcalling for the exercise of our primary jurisdiction.

II.

The challenged ordinances are (a) Ordinance No. 3353 entitled, " An OrdinanceProhibiting the Issuance of Business Permit and Canceling Existing Business Permit To

Any Establishment for the Using and Allowing to be Used Its Premises or PortionThereof for the Operation of Casino," and (b) Ordinance No. 3375-93 entitled, " AnOrdinance Prohibiting the Operation of Casino and Providing Penalty for ViolationTherefor ." They were enacted to implement Resolution No. 2295 entitled, "ResolutionDeclaring As a Matter of Policy to Prohibit and/or Not to Allow the Establishment of theGambling Casino in the City of Cagayan de Oro," which was promulgated on 19November 1990 — nearly two years before PRYCE and PAGCOR entered into acontract of lease under which the latter leased a portion of the former's Pryce PlazaHotel for the operation of a gambling casino — which resolution was vigorouslyreiterated in Resolution No. 2673 of 19 October 1992.

The challenged ordinances were enacted pursuant to the Sangguniang Panglungsod'sexpress powers conferred by Section 458, paragraph (a), subparagraphs (1)-(v), (3)-(ii),and (4)-(i), (iv), and (vii), Local Government Code, and pursuant to its implied powerunder Section 16 thereof (the general welfare clause) which reads:

Sec. 16. General Welfare. — Every local government unit shall exercise the powersexpressly granted, those necessarily implied therefrom, as well as powers necessary,appropriate, or incidental for its efficient and effective governance, and those which areessential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, thepreservation and enrichment of culture, promote health and safety, enhance the right of

the people to a balanced ecology, encourage and support the development ofappropriate and self-reliant scientific and technological capabilities, improve publicmorals, enhance economic prosperity and social justice, promote full employment amongtheir residents, maintain peace and order, and preserve the comfort and convenience oftheir inhabitants.

The issue that necessarily arises is whether in granting local governments (such as theCity of Cagayan de Oro) the above powers and functions, the Local Government Codehas, pro tanto, repealed P.D. No. 1869 insofar as PAGCOR's general authority toestablish and maintain gambling casinos anywhere in the Philippines is concerned.

I join the majority in holding that the ordinances cannot repeal P.D. No. 1869.

III.

The nullification by the Court of Appeals of the challenged ordinances asunconstitutional primarily because it is in contravention to P.D. No. 1869 is unwarranted.

A contravention of a law is not necessarily a contravention of the constitution. In anycase, the ordinances can still stand even if they be conceded as offending P.D. No.



of accused-appellant, conducted a surveillance, and observed that there were persons coming inand out of Padua‘s house talking to the latter. They then went back to the other police officers

and told them the place where accused-appellant was. Thereafter, PO2 Aguilar and the asset proceeded to the house of accused-appellant. The asset called Sonny, and when the latter wentout of his house, the asset introduced PO2 Aguilar to him as a delivery truck driver who had just

arrived from a provincial trip and in dire need of shabu for his personal consumption. Aguilarhanded the P200.00 marked money to the accused-appellant, who folded and placed it on his left pocket. Accused-appellant then took something from his right pocket and handed an aluminumsachet to PO2 Aguilar. Subsequently, PO2 Aguilar removed his cap, the pre-arranged signal tothe rest of the buy-bust team that he had already bought the shabu. When PO1 Esparagozaarrived, PO2 Aguilar frisked and arrested the accused-appellant. He recovered the buy-bustmoney in the left pocket and four sachets in the right pocket of the accused-appellant. Heinformed accused-appellant of his right to remain silent, and of the fact that he would be chargedwith violation of Republic Act No. 9165. They brought him to the police station. Later, PO2Aguilar turned over the seized drugs to the investigator, who thereafter brought the evidence tothe SPD Crime Laboratory Office, Fort Bonifacio, Taguig City.

For failure of PO3 Cirilo Zamora to appear on the April 3, 2003 hearing,11 PO1 MichaelEsparagoza to appear on the July 24, 2003 hearing,12 and PO2 Robert Jovenir to appear at the November 12, 2003 hearing,13 despite notices, their testimonies were deemed waived.

The prosecution also adduced documentary and object evidence to buttress the testimony of itswitness, to wit: (1) joint affidavit of the arresting officers signed by SPO2 Nilo Banzuela, PO3Cirilo Zamora, PO2 Dante Aguilar, PO3 Felix Mayuga, PO2 Roberto Jovenir and PO1 MichaelEsparagoza;14 (2) request for laboratory examination dated August 18, 2002;15 (3) PhysicalScience Report No. D-1237-02 dated August 18, 2002, signed by Forensic Chemist Maria AnaRivera-Dagasdas;16 (4) one heat-sealed transparent plastic sachet containing 0.20 gram of shabu;(5) four heat-sealed transparent plastic sachets each containing 0.20 gram, 0.10 gram, 0.20 gramand 0.20 gram respectively, of shabu; and (6) photocopy of two one-hundred-peso bills withserial numbers FW840532 and YR684136.17

The defense, on the other hand, had an entirely different version of what transpired that morning.It presented two witnesses: accused-appellant Sonny Padua and Miranda Estanislao. Thetestimony of Alice Padua, the wife of the accused was dispensed with, on the stipulation that if presented she will just corroborate the testimony of the accused.

Accused-appellant testified that there was no buy-bust operation on August 18, 2002. On directexamination, accused-appellant asserted that at around 8:00 to 9:00 o‘clock in the morning of

August 18, 2002, he was awakened by the operatives who went to his house located at No. 216,Mozo Street, Purok 2, Barangay Napindan, Taguig City. When he opened his eyes, a gun was poked at him. He was handcuffed by the police officers and was brought to DDEU at FortBonifacio, where he was detained. While inside the vehicle on their way to Fort Bonifacio,accused-appellant alleged that the police officers asked him to give them money in the amount ofP120,000.00 otherwise a case will be filed against him.

http://www.lawphil.net/judjuris/juri2010/jul2010/gr_174097_2010.html#fnt11






























In his Supplemental Brief ,22 accused-appellant assigned the following errors:

I.

THE GUILT OF THE ACCUSED-APPELLANT WAS NOT PROVEN BEYOND

REASONABLE DOUBT FOR FAILURE OF THE PROSECUTION TO ESTABLISH THECHAIN OF CUSTODY OF THE SPECIMEN.

II.

THE APPELLATE COURT, WITH DUE RESPECT, GRAVELY ERRED IN CONVICTINGTHE ACCUSED-APPELLANT DESPITE FAILURE OF THE PROSECUTION TO PRESENTTHE ALLEGED INFORMANT.

Accused-appellant asserts that the police officers failed to account for the chain of custody of theseized items alleged to be shabu. He questions the non-presentation as witness of the alleged

investigator, the officer on duty who received the specimen together with the request forlaboratory examination from PO2 Aguilar. He maintains that the specimen, which PO2 Aguilarturned over to Forensic Chemist Rivera-Dagasdas, may no longer be the same specimen takenfrom him by PO2 Aguilar.

Contrary to accused-appellant‘s claim, there is no broken chain in the custody of the seized

items, found to be shabu, from the time PO2 Aguilar got the shabu, to the time it was turned overto the investigating officer, and up to the time it was brought to the forensic chemist at the PNPCrime Laboratory for laboratory examination.

The procedure for the custody and disposition of confiscated, seized and/or surrendered

dangerous drugs, among others, is provided under paragraph 1, Section 21, Article II of RepublicAct No. 9165, as follows:

(1) The apprehending team having initial custody and control of the drugs shall, immediatelyafter seizure and confiscation, physically inventory and photograph the same in the presence ofthe accused or the person/s from whom such items were confiscated and/or seized, or his/herrepresentative 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 begiven a copy thereof.

Section 21(a), Article II of the Implementing Rules and Regulations of Republic Act No. 9165,

which implements said provision, stipulates:(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, orhis/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 inventoryand be given a copy thereof: x x x Provided, further, that non-compliance with these







requirements under justifiable grounds, as long as the integrity and the evidentiary value of theseized items are properly preserved by the apprehending officer/team, shall not render void andinvalid such seizures of and custody over said items.

Under the same proviso, non-compliance with the stipulated procedure, under justifiable

grounds, shall not render void and invalid such seizures of and custody over said items, for aslong as the integrity and evidentiary value of the seized items are properly preserved by theapprehending officers.

Clearly, the purpose of the procedure outlined in the implementing rules is centered on the preservation of the integrity and evidentiary value of the seized items. The testimony of PO2Aguilar outlines the chain of custody of the confiscated items, i.e., sachets of shabu:

Q What else did you do when you arrested Sonny Padua?

A I frisked him.

Q When you say frisk him, who is that?

A Sonny Padua.

Q What else did you do when you arrested Sonny Padua?

A After I arrested him I recovered from him the buy-bust money in his left pocket and the4 sachets of shabu in his right pocket.

Q What else did you do?

A And I apprised him of his violation of 9165.

Q If this person is shown to you, will you be able to recognize him?

A Yes, sir.

Q Is he here in this court-room today?

A Yes, sir.

Q Will you please stand up and point to him?

A Witness is pointing to a man wearing a yello (sic) t-shirt who when asked he replied heis Sonny Padua.

Q I am showing to you a brown envelope inside the same brown envelope is a plasticsachet of shabu, will you please go over the same and tell us if this is the plastic sachet



the prosecution. The matter of presentation of witnesses by the prosecution is not for the court todecide. The prosecution has the discretion as to how to present its case and it has the right tochoose whom it wishes to present as witnesses.

What determines if there was, indeed, a sale of dangerous drugs in a buy-bust operation is proof

of the concurrence of all the elements of the offense, to wit: (1) the identity of the buyer and theseller, the object, and the consideration; and (2) the delivery of the thing sold and the paymenttherefor, which the prosecution has satisfactorily established. The prosecution satisfactorily proved the illegal sale of dangerous drugs and presented in court the evidence of corpus delicti.30

In the instant case, all the elements of the crime have been sufficiently established by the prosecution. The witness for the prosecution was able to prove that the buy-bust operation indeedtook place, and the shabu subject of the sale was brought to and duly identified in court. The poseur-buyer (PO2 Aguilar) positively identified accused-appellant as the one who had sold tohim one heat-sealed, transparent plastic sachet containing twenty decigrams (0.20 gram) ofshabu. After accused-appellant received the marked money and handed to PO2 Aguilar one

plastic sachet of shabu, the latter called his team mates and right away frisked the accused-appellant. From the body search, PO2 Aguilar recovered from the possession of accused-appellant, specifically from the latter‘s right pocket, another four sachets of shabu.

On the other hand, for an accused to be convicted of illegal possession of prohibited or regulateddrugs, the following elements must concur: (1) the accused is in possession of an item or objectwhich is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3)the accused freely and consciously possesses the said drug.31

With respect to the charge of illegal possession of dangerous drugs under Section 11, Article IIof Republic Act No. 9165, all of these elements were present and duly proven in Criminal Case

No. 11596-D. These are: (1) accused-appellant was found to be in possession of .70 gram ofshabu, a dangerous drug; (2) the identity of accused-appellant as the person found in possessionof the dangerous drug was established; and (3) accused-appellant, the person found to be in possession, was not authorized to possess the dangerous drug. The prosecution has establishedthat the arresting officers were able to retrieve four more plastic sachets of shabu in accused-appellant‘s possession when he was directed to empty his pockets upon being arrested in

flagrante delicto in the buy-bust operation.

PO2 Aguilar straightforwardly narrated the circumstances leading to the consummation of thesale of illegal drugs, the possession of four plastic sachets of shabu and the arrest of accused-appellant. Credence was properly accorded to the testimony of prosecution witness PO2 Aguilarwho is a law enforcer. The testimony of the police officers carried with it the presumption ofregularity in the performance of official functions. Law enforcers are presumed to have performed their duties regularly in the absence of evidence to the contrary. When police officershave no motive for testifying falsely against the accused, courts are inclined to uphold the presumption of regularity in the performance of their duties32 and no evidence whatsoever was presented that would suggest any improper motive on the part of the police enforcers. This Courtaccords great respect to and treats with finality the findings of the trial court on the matter ofcredibility of witnesses, absent any palpable error or arbitrariness in its findings.















Accused-appellant also contends that the prosecution failed to prove that he received the moneyas payment for the sale of illegal drugs, by its failure to prove that he was positive for ultravioletfluorescent powder. The accused-appellant fails to persuade us. Since the prosecution hasdischarged its onus of proving the accusation, as in fact it presented the prohibited drug andidentified accused-appellant as the offender, it is immaterial that prosecution present report that

accused-appellant was indeed positive for ultraviolet fluorescent powder.

In a last-ditch but futile attempt to evade culpability, the accused-appellant tried to argue on his behalf that no surveillance was conducted before the buy-bust operation.

A prior surveillance is not a prerequisite for the validity of an entrapment or buy-bust operation,the conduct of which has no rigid or textbook method. Flexibility is a trait of good police work.However the police carry out its entrapment operations, for as long as the rights of the accusedhave not been violated in the process, the courts will not pass on the wisdom thereof .33 The police officers may decide that time is of the essence and dispense with the need for priorsurveillance.34

Since accused-appellant‘s violation of Sections 5 and 11, Article II of Republic Act No. 9165

were duly established by the prosecution‘s evidence, we shall now ascertain the penaltiesimposable on him.

Under Section 5, Article II of Republic Act No. 9165, the unauthorized sale of shabu, regardlessof its quantity and purity, carries with it the penalty of life imprisonment to death and a fineranging from Five Hundred Thousand Pesos (P500,000.00) to Ten Million Pesos(P10,000,000.00).

Pursuant, however, to the enactment of Republic Act No. 9346, entitled "An Act Prohibiting the

Imposition of Death Penalty in the Philippines," only life imprisonment and fine shall beimposed. Thus, the RTC and the Court of Appeals were correct in imposing the penalty of lifeimprisonment and fine of P500,000.00 on appellant in Criminal Case No. 11595-D.

Section 11(3), Article II of Republic Act No. 9165 provides that illegal possession of less thanfive grams of shabu is penalized with imprisonment of twelve (12) years and one day to twenty(20) years, plus a fine ranging from Three hundred thousand pesos (P300,000.00) to Fourhundred thousand pesos (P400,000.00).1avvphi1

Accused-appellant was charged with and found to be guilty of illegal possession of 0.70 gram ofshabu in Criminal Case No. 11596-D. Hence, the RTC and the Court of Appeals aptly sentencedappellant to imprisonment of 12 years and one day, as minimum, to 20 years, as maximum, andfined him P300,000.00, since said penalties are within the range of penalties prescribed by theaforequoted provision.

WHEREFORE, the Decision dated May 25, 2006 of the Court of Appeals in CA-G.R. CR.-H.C. No. 00553 is hereby AFFIRMED in toto.

SO ORDERED.











[G.R. No. 157870, November 03, 2008]

SOCIAL JUSTICE SOCIETY (SJS), PETITIONER, VS. DANGEROUS DRUGS BOARD

AND PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), RESPONDENTS.

[G.R. No. 158633]

ATTY. MANUEL J. LASERNA, JR., PETITIONER, VS. DANGEROUS DRUGS BOARD

AND PHILIPPINE DRUG ENFORCEMENT AGENCY, RESPONDENTS.

[G.R. No. 161658]

AQUILINO Q. PIMENTEL, JR., PETITIONER, VS. COMMISSION ON ELECTIONS,

RESPONDENT.

D E C I S I O N

VELASCO JR., J.:

In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165,otherwise known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requiresmandatory drug testing of candidates for public office, students of secondary and tertiaryschools, officers and employees of public and private offices, and persons charged before the prosecutor's office with certain offenses, among other personalities, is put in issue.

As far as pertinent, the challenged section reads as follows:SEC. 36. Authorized Drug Testing .â€‖Authorized drug testing shall be done by any government

forensic laboratories or by any of the drug testing laboratories accredited and monitored by theDOH to safeguard the quality of the test results. x x x The drug testing shall employ, amongothers, two (2) testing methods, the screening test which will determine the positive result aswell as the type of drug used and the confirmatory test which will confirm a positive screeningtest. x x x The following shall be subjected to undergo drug testing:

x x x x

(c) Students of secondary and tertiary schools.â€‖Students of secondary and tertiary schoolsshall, pursuant to the related rules and regulations as contained in the school's student handbookand with notice to the parents, undergo a random drug testing x x x;

(d) Officers and employees of public and private offices.â€‖Officers and employees of publicand private offices, whether domestic or overseas, shall be subjected to undergo a random drugtest as contained in the company's work rules and regulations, x x x for purposes of reducing therisk in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or termination, subject tothe provisions of Article 282 of the Labor Code and pertinent provisions of the Civil ServiceLaw;



x x x x

(f) All persons charged before the prosecutor's office with a criminal offense having animposable penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a

mandatory drug test;

(g) All candidates for public office whether appointed or elected both in the national or localgovernment shall undergo a mandatory drug test.

In addition to the above stated penalties in this Section, those found to be positive for dangerousdrugs use shall be subject to the provisions of Section 15 of this Act.

G.R. No. 161658 ( Aquilino Q. Pimentel, Jr. v. Commission on Elections)

On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the rules and regulations on the mandatory drug testing of candidates for public

office in connection with the May 10, 2004 synchronized national and local elections. The pertinent portions of the said resolution read as follows:WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:

SEC. 36. Authorized Drug Testing .â€‖x x x

x x x x

(g) All candidates for public office x x x both in the national or local government shall undergo

a mandatory drug test.

WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers andemployees must at all times be accountable to the people, serve them with utmost responsibility,integrity, loyalty and efficiency;

WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know thequality of candidates they are electing and they will be assured that only those who can servewith utmost responsibility, integrity, loyalty, and efficiency would be elected x x x.

NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under theConstitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other electionlaws, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulationson the conduct of mandatory drug testing to candidates for public office[:]

SECTION 1. Coverage.â€‖All candidates for public office, both national and local, in the

May 10, 2004 Synchronized National and Local Elections shall undergo mandatory drug testin government forensic laboratories or any drug testing laboratories monitored and accredited bythe Department of Health.

SEC. 3. x x x



On March 25, 2004, in addition to the drug certificates filed with their respective offices, theComelec Offices and employees concerned shall submit to the Law Department two (2) separatelists of candidates. The first list shall consist of those candidates who complied with themandatory drug test while the second list shall consist of those candidates who failed to comply

x x x.

SEC. 4. Preparation and publication of names of candidates.â€‖Before the start of the campaign

period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consistof those candidates who complied with the mandatory drug test while the second list shall consistof those candidates who failed to comply with said drug test. x x x

SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate.â€‖No

person elected to any public office shall enter upon the duties of his office until he has undergonemandatory drug test and filed with the offices enumerated under Section 2 hereof the drug testcertificate herein required. (Emphasis supplied.)

Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re-election inthe May 10, 2004 elections,[1] filed a Petition for Certiorari and Prohibition under Rule 65. In it,he seeks (1) to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 datedDecember 23, 2003 for being unconstitutional in that they impose a qualification for candidatesfor senators in addition to those already provided for in the 1987 Constitution; and (2) to enjointhe COMELEC from implementing Resolution No. 6486.

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, whichstates:SECTION 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines,and, on the day of the election, is at least thirty-five years of age, able to read and write, aregistered voter, and a resident of the Philippines for not less than two years immediately preceding the day of the election.According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications forone to be a candidate for, elected to, and be a member of the Senate. He says that both theCongress and COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorialaspirant, among other candidates, to undergo a mandatory drug test, create an additionalqualification that all candidates for senator must first be certified as drug free. He adds that thereis no provision in the Constitution authorizing the Congress or COMELEC to expand thequalification requirements of candidates for senator.

G.R. No. 157870 (Social Justice Society v. Dangerous Drugs Board and Philippine Drug Enforcement Agency)

In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine DrugEnforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA9165 on the ground that they are constitutionally infirm. For one, the provisions constitute unduedelegation of legislative power when they give unbridled discretion to schools and employers todetermine the manner of drug testing. For another, the provisions trench in the equal protection



clause inasmuch as they can be used to harass a student or an employee deemed undesirable.And for a third, a person's constitutional right against unreasonable searches is also breached bysaid provisions.

G.R. No. 158633 ( Atty. Manuel J. Laserna, Jr. v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition forCertiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struckdown as unconstitutional for infringing on the constitutional right to privacy, the right againstunreasonable search and seizure, and the right against self-incrimination, and for being contraryto the due process and equal protection guarantees.

The Issue on Locus Standi

First off, we shall address the justiciability of the cases at bench and the matter of the standing of petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Lasernafailed to allege any incident amounting to a violation of the constitutional rights mentioned intheir separate petitions.[2]

It is basic that the power of judicial review can only be exercised in connection with a bona fide controversy which involves the statute sought to be reviewed.[3] But even with the presence ofan actual case or controversy, the Court may refuse to exercise judicial review unless theconstitutional question is brought before it by a party having the requisite standing to challengeit.[4] To have standing, one must establish that he or she has suffered some actual or threatenedinjury as a result of the allegedly illegal conduct of the government; the injury is fairly traceableto the challenged action; and the injury is likely to be redressed by a favorable action.[5]

The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non-traditional plaintiffs, like ordinary citizens, taxpayers, and legislators when the public interest sorequires, such as when the matter is of transcendental importance, of overarching significance tosociety, or of paramount public interest.[6] There is no doubt that Pimentel, as senator of thePhilippines and candidate for the May 10, 2004 elections, possesses the requisite standing sincehe has substantial interests in the subject matter of the petition, among other preliminaryconsiderations. Regarding SJS and Laserna, this Court is wont to relax the rule on locus standi owing primarily to the transcendental importance and the paramount public interest involved inthe enforcement of Sec. 36 of RA 9165.

The Consolidated Issues

The principal issues before us are as follows:

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additionalqualification for candidates for senator? Corollarily, can Congress enact a law prescribingqualifications for candidates for senator in addition to those laid down by the Constitution? and

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do



these paragraphs violate the right to privacy, the right against unreasonable searches and seizure,and the equal protection clause? Or do they constitute undue delegation of legislative power?

Pimentel Petition

(Constitutionality of Sec. 36[g] of RA 9165 and

COMELEC Resolution No. 6486)

In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486illegally impose an additional qualification on candidates for senator. He points out that, subjectto the provisions on nuisance candidates, a candidate for senator needs only to meet thequalifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voterregistration, (3) literacy, (4) age, and (5) residency. Beyond these stated qualificationrequirements, candidates for senator need not possess any other qualification to run for senatorand be voted upon and elected as member of the Senate. The Congress cannot validly amend orotherwise modify these qualification standards, as it cannot disregard, evade, or weaken the forceof a constitutional mandate,[7] or alter or enlarge the Constitution.

Pimentel's contention is well-taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it ishereby declared as, unconstitutional. It is basic that if a law or an administrative rule violates anynorm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with theConstitution.[8] In the discharge of their defined functions, the three departments of governmenthave no choice but to yield obedience to the commands of the Constitution. Whatever limits itimposes must be observed.[9]

Congress' inherent legislative powers, broad as they may be, are subject to certain limitations.As early as 1927, in Government v. Springer , the Court has defined, in the abstract, the limits onlegislative power in the following wise:Someone has said that the powers of the legislative department of the Government, like the boundaries of the ocean, are unlimited. In constitutional governments, however, as well asgovernments acting under delegated authority, the powers of each of the departments x x x arelimited and confined within the four walls of the constitution or the charter, and each departmentcan only exercise such powers as are necessarily implied from the given powers. TheConstitution is the shore of legislative authority against which the waves of legislative enactmentmay dash, but over which it cannot leap.[10] Thus, legislative power remains limited in the sense that it is subject to substantive andconstitutional limitations which circumscribe both the exercise of the power itself and theallowable subjects of legislation.[11] The substantive constitutional limitations are chiefly foundin the Bill of Rights[12] and other provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for senators.

In the same vein, the COMELEC cannot, in the guise of enforcing and administering electionlaws or promulgating rules and regulations to implement Sec. 36(g), validly imposequalifications on candidates for senator in addition to what the Constitution prescribes. IfCongress cannot require a candidate for senator to meet such additional qualification, theCOMELEC, to be sure, is also without such power. The right of a citizen in the democratic process of election should not be defeated by unwarranted impositions of requirement not



otherwise specified in the Constitution.[13]

Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution,effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of theConstitution. As couched, said Sec. 36(g) unmistakably requires a candidate for senator to be

certified illegal-drug clean, obviously as a pre-condition to the validity of a certificate ofcandidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed as senator-elect. The COMELEC resolution completes the chain with the proviso that "[n]o person elected to any public office shall enter upon the duties of his officeuntil he has undergone mandatory drug test." Viewed, therefore, in its proper context, Sec. 36(g)of RA 9165 and the implementing COMELEC Resolution add another qualification layer towhat the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether ornot the drug-free bar set up under the challenged provision is to be hurdled before or afterelection is really of no moment, as getting elected would be of little value if one cannot assumeoffice for non-compliance with the drug-testing requirement.

It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not expressly state that non-compliance with the drug test imposition is adisqualifying factor or would work to nullify a certificate of candidacy. This argument may beaccorded plausibility if the drug test requirement is optional. But the particular section of thelaw, without exception, made drug-testing on those covered mandatory, necessarily suggestingthat the obstinate ones shall have to suffer the adverse consequences for not adhering to thestatutory command. And since the provision deals with candidates for public office, it stands toreason that the adverse consequence adverted to can only refer to and revolve around the electionand the assumption of public office of the candidates. Any other construal would reduce themandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and effectwhatsoever.

While it is anti-climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longerenforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronizedelections and the candidates running in that electoral event. Nonetheless, to obviate repetition,the Court deems it appropriate to review and rule, as it hereby rules, on its validity as animplementing issuance.

It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA9165 is rooted on its having infringed the constitutional provision defining the qualification oreligibility requirements for one aspiring to run for and serve as senator.

SJS Petition

(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiarylevel students and public and private employees, while mandatory, is a random and suspicionlessarrangement. The objective is to stamp out illegal drug and safeguard in the process "the well being of [the] citizenry, particularly the youth, from the harmful effects of dangerous drugs."This statutory purpose, per the policy-declaration portion of the law, can be achieved via the



after he refused to undertake the urinalysis drug testing. Acton forthwith sued, claiming that theschool's drug testing policy violated, inter alia, the Fourth Amendment[19] of the USConstitution.

The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the

following: (1) schools stand in loco parentis over their students; (2) school children, while notshedding their constitutional rights at the school gate, have less privacy rights; (3) athletes haveless privacy rights than non-athletes since the former observe communal undress before and aftersports events; (4) by joining the sports activity, the athletes voluntarily subjected themselves to ahigher degree of school supervision and regulation; (5) requiring urine samples does not invade astudent's privacy since a student need not undress for this kind of drug testing; and (6) there isneed for the drug testing because of the dangerous effects of illegal drugs on the young. The USSupreme Court held that the policy constituted reasonable search under the Fourth[20] and 14thAmendments and declared the random drug-testing policy constitutional.

In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a

drug test for high school students desiring to join extra-curricular activities. Lindsay Earls, amember of the show choir, marching band, and academic team declined to undergo a drug testand averred that the drug-testing policy made to apply to non-athletes violated the Fourth and14th Amendments. As Earls argued, unlike athletes who routinely undergo physicalexaminations and undress before their peers in locker rooms, non-athletes are entitled to more privacy.

The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even amongnon-athletes on the basis of the school's custodial responsibility and authority. In so ruling, saidcourt made no distinction between a non-athlete and an athlete. It ratiocinated that schools andteachers act in place of the parents with a similar interest and duty of safeguarding the health ofthe students. And in holding that the school could implement its random drug-testing policy, theCourt hinted that such a test was a kind of search in which even a reasonable parent might needto engage.

In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to theirstudents; (2) minor students have contextually fewer rights than an adult, and are subject to thecustody and supervision of their parents, guardians, and schools; (3) schools, acting in loco

parentis, have a duty to safeguard the health and well-being of their students and may adopt suchmeasures as may reasonably be necessary to discharge such duty; and (4) schools have the rightto impose conditions on applicants for admission that are fair, just, and non-discriminatory.

Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of studentsare constitutional. Indeed, it is within the prerogative of educational institutions to require, as acondition for admission, compliance with reasonable school rules and regulations and policies.To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitablerequirements.



The Court can take judicial notice of the proliferation of prohibited drugs in the country thatthreatens the well-being of the people,[21] particularly the youth and school children who usuallyend up as victims. Accordingly, and until a more effective method is conceptualized and put inmotion, a random drug testing of students in secondary and tertiary schools is not onlyacceptable but may even be necessary if the safety and interest of the student population,

doubtless a legitimate concern of the government, are to be promoted and protected. To borrowfrom Vernonia, "[d]eterring drug use by our Nation's schoolchildren is as important as enhancingefficient enforcement of the Nation's laws against the importation of drugs"; the necessity for theState to act is magnified by the fact that the effects of a drug-infested school are visited not justupon the users, but upon the entire student body and faculty.[22] Needless to stress, the randomtesting scheme provided under the law argues against the idea that the testing aims to incriminateunsuspecting individual students.

Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the same reason. The Court notes in this regard that petitioner

SJS, other than saying that "subjecting almost everybody to drug testing, without probable cause,is unreasonable, an unwarranted intrusion of the individual right to privacy,"[23] has failed toshow how the mandatory, random, and suspicionless drug testing under Sec. 36(c) and (d) of RA9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art.III, Secs. 1 and 2 of the Constitution.[24] Petitioner Laserna's lament is just as simplistic,sweeping, and gratuitous and does not merit serious consideration. Consider what he wrotewithout elaboration:The US Supreme Court and US Circuit Courts of Appeals have made various rulings on theconstitutionality of mandatory drug tests in the school and the workplaces. The US courts have been consistent in their rulings that the mandatory drug tests violate a citizen's constitutionalright to privacy and right against unreasonable search and seizure. They are quoted extensivelyhereinbelow.[25] The essence of privacy is the right to be left alone. [26] In context, the right to privacy means theright to be free from unwarranted exploitation of one's person or from intrusion into one's privateactivities in such a way as to cause humiliation to a person's ordinary sensibilities.[27] And whilethere has been general agreement as to the basic function of the guarantee against unwarrantedsearch, "translation of the abstract prohibition against `unreasonable searches and seizures' intoworkable broad guidelines for the decision of particular cases is a difficult task," to borrow fromC. Camara v. Municipal Court .[28] Authorities are agreed though that the right to privacy yieldsto certain paramount rights of the public and defers to the state's exercise of police power.[29]

As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held,"reasonableness" is the touchstone of the validity of a government search or intrusion.[30] Andwhether a search at issue hews to the reasonableness standard is judged by the balancing of thegovernment-mandated intrusion on the individual's privacy interest against the promotion ofsome compelling state interest.[31] In the criminal context, reasonableness requires showing of probable cause to be personally determined by a judge. Given that the drug-testing policy foremployeesâ€‖and students for that matterâ€‖under RA 9165 is in the nature of administrative

search needing what was referred to in Vernonia as "swift and informal disciplinary procedures,"the probable-cause standard is not required or even practicable. Be that as it may, the review



should focus on the reasonableness of the challenged administrative search in question.

The first factor to consider in the matter of reasonableness is the nature of the privacy interestupon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of theConstitution, intrudes. In this case, the office or workplace serves as the backdrop for the

analysis of the privacy expectation of the employees and the reasonableness of drug testingrequirement. The employees' privacy interest in an office is to a large extent circumscribed bythe company's work policies, the collective bargaining agreement, if any, entered into bymanagement and the bargaining unit, and the inherent right of the employer to maintaindiscipline and efficiency in the workplace. Their privacy expectation in a regulated officeenvironment is, in fine, reduced; and a degree of impingement upon such privacy has beenupheld.

Just as defining as the first factor is the character of the intrusion authorized by the challengedlaw. Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, asformulated in Ople v. Torres, is the enabling law authorizing a search "narrowly drawn" or

"narrowly focused"?

[32]

The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and itsimplementing rules and regulations (IRR), as couched, contain provisions specifically directedtowards preventing a situation that would unduly embarrass the employees or place them under ahumiliating experience. While every officer and employee in a private establishment is under thelaw deemed forewarned that he or she may be a possible subject of a drug test, nobody is reallysingled out in advance for drug testing. The goal is to discourage drug use by not telling inadvance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165itself prescribes what, in Ople, is a narrowing ingredient by providing that the employeesconcerned shall be subjected to "random drug test as contained in the company's work rules andregulations x x x for purposes of reducing the risk in the work place."

For another, the random drug testing shall be undertaken under conditions calculated to protectas much as possible the employee's privacy and dignity. As to the mechanics of the test, the lawspecifies that the procedure shall employ two testing methods, i.e., the screening test and theconfirmatory test, doubtless to ensure as much as possible the trustworthiness of the results. Butthe more important consideration lies in the fact that the test shall be conducted by trained professionals in access-controlled laboratories monitored by the Department of Health (DOH) tosafeguard against results tampering and to ensure an accurate chain of custody.[33] In addition,the IRR issued by the DOH provides that access to the drug results shall be on the "need toknow" basis;[34] that the "drug test result and the records shall be [kept] confidential subject tothe usual accepted practices to protect the confidentiality of the test results."[35] Notably, RA9165 does not oblige the employer concerned to report to the prosecuting agencies anyinformation or evidence relating to the violation of the Comprehensive Dangerous Drugs Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into theemployees' privacy, under RA 9165, is accompanied by proper safeguards, particularly againstembarrassing leakages of test results, and is relatively minimal.

To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus



protect the well-being of the citizens, especially the youth, from the deleterious effects ofdangerous drugs. The law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse policy in the workplace via a mandatoryrandom drug test.[36] To the Court, the need for drug testing to at least minimize illegal drug useis substantial enough to override the individual's privacy interest under the premises. The Court

can consider that the illegal drug menace cuts across gender, age group, and social- economiclines. And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs,with their ready market, would be an investor's dream were it not for the illegal and immoralcomponents of any of such activities. The drug problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid back stancewith respect to this modern-day scourge. Drug enforcement agencies perceive a mandatoryrandom drug test to be an effective way of preventing and deterring drug use among employeesin private offices, the threat of detection by random testing being higher than other modes. TheCourt holds that the chosen method is a reasonable and enough means to lick the problem.

Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of

the employees, the compelling state concern likely to be met by the search, and the well-definedlimits set forth in the law to properly guide authorities in the conduct of the random testing, wehold that the challenged drug test requirement is, under the limited context of the case,reasonable and, ergo, constitutional.

Like their counterparts in the private sector, government officials and employees also labor underreasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service.[37] And ifRA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable atall times to the people and to serve them with utmost responsibility and efficiency.[38]

Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of unduedelegation of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not so extensively drawn as to give unbridled options to schools andemployers to determine the manner of drug testing. Sec. 36 expressly provides how drug testingfor students of secondary and tertiary schools and officers/employees of public/private officesshould be conducted. It enumerates the persons who shall undergo drug testing. In the case ofstudents, the testing shall be in accordance with the school rules as contained in the studenthandbook and with notice to parents. On the part of officers/employees, the testing shall take intoaccount the company's work rules. In either case, the random procedure shall be observed,meaning that the persons to be subjected to drug test shall be picked by chance or in anunplanned way. And in all cases, safeguards against misusing and compromising theconfidentiality of the test results are established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with theDOH, Department of the Interior and Local Government, Department of Education, andDepartment of Labor and Employment, among other agencies, the IRR necessary to enforce thelaw. In net effect then, the participation of schools and offices in the drug testing scheme shallalways be subject to the IRR of RA 9165. It is, therefore, incorrect to say that schools and



employers have unchecked discretion to determine how often, under what conditions, and wherethe drug tests shall be conducted.

The validity of delegating legislative power is now a quiet area in the constitutionallandscape.[39] In the face of the increasing complexity of the task of the government and the

increasing inability of the legislature to cope directly with the many problems demanding itsattention, resort to delegation of power, or entrusting to administrative agencies the power ofsubordinate legislation, has become imperative, as here.

Laserna Petition (Constitutionality of Sec. 36[c], [d],

[f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory drug testing for persons accused of crimes. In the case of students, theconstitutional viability of the mandatory, random, and suspicionless drug testing for studentsemanates primarily from the waiver by the students of their right to privacy when they seek entry

to the school, and from their voluntarily submitting their persons to the parental authority ofschool authorities. In the case of private and public employees, the constitutional soundness ofthe mandatory, random, and suspicionless drug testing proceeds from the reasonableness of thedrug test policy and requirement.

We find the situation entirely different in the case of persons charged before the public prosecutor's office with criminal offenses punishable with six (6) years and one (1) dayimprisonment. The operative concepts in the mandatory drug testing are "randomness" and"suspicionless." In the case of persons charged with a crime before the prosecutor's office, amandatory drug testing can never be random or suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made defendants in a criminal complaint. Theyare not randomly picked; neither are they beyond suspicion. When persons suspected ofcommitting a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office and peaceablysubmitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy.[40] To impose mandatory drug testing on theaccused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contraryto the stated objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons areveritably forced to incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declaresSec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; andto PARTIALLY GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined fromimplementing Sec. 36(f) and (g) of RA 9165. No costs.

SO ORDERED.



THIRD DIVISION

[G.R. No. 176735, June 26, 2008]

THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JERRY SANTOS

Y MACOL AND RAMON CATOC Y PICAYO, ACCUSED-APPELLANTS.

D E C I S I O N

CHICO-NAZARIO, J.:

Assailed before Us is the Decision[1] of the Court of Appeals dated 29 November 2006 in CA-G.R. C.R.-HC No. 01291 which affirmed the Decision[2] of the Regional Trial Court (RTC) ofPasig City, Branch 70, in Criminal Cases No. 12193-D and No. 12194-D, finding accused-appellants Jerry Santos y Macol and Ramon Catoc y Picayo guilty of illegal sale ofmethamphetamine hydrochloride, more popularly known as shabu, and finding accused-

appellant Ramon Catoc y Picayo guilty of illegal possession of the said prohibited drug,respectively.

On 10 March 2003, two Informations were filed against appellants Jerry Santos y Macol andRamon Catoc y Picayo before the RTC of Pasig City, for violating the provisions of RepublicAct No. 9165 or the Comprehensive Dangerous Drugs Act of 2002.

In Criminal Case No. 12193-D, appellants Santos and Catoc allegedly violated Section 5, ArticleII of Republic Act No. 9165[3] in the following manner:On or about March 8, 2003, in Pasig City and within the jurisdiction of this Honorable Court, theaccused, conspiring and confederating together and both of them mutually helping and

aiding one another, not being lawfully authorized by law, did then and there willfully,unlawfully and feloniously sell, deliver and give away to PO3 Carlo Luna, a police poseur

buyer, one (1) heat-sealed transparent plastic sachet containing three (3) centigrams (0.03

gram) of white crystalline substance, which was found positive to the test for

methylamphethamine hydrochloride, a dangerous drug, in violation of the said law.[4] (Emphasis ours).On the other hand, in Criminal Case No. 12194-D, appellant Catoc was additionally chargedwith violation of Section 11, Article II of the same law,[5] committed as follows:On or about March 8 2003, in Pasig City and within the jurisdiction of this Honorable Court, theaccused, not being lawfully authorized to possess any dangerous drug, did then and therewillfully, unlawfully and feloniously have in his possession and under his custody and

control one (1) heat-sealed transparent plastic sachet containing three (3) centigrams (0.03

gram) of white crystalline substance, which was found positive to the test for

methylamphethamine hydrochloride, a dangerous drug, in violation of the said law.[6] (Emphasis ours).During their arraignment on 19 May 2003, appellants Santos and Catoc pleaded not guilty to theabove-mentioned charges.[7]

On 3 June 2003, the Pre-Trial Conference of the cases was terminated without the prosecution



and the defense agreeing to any stipulation of facts.[8]

On 5 August 2003, the parties, however, agreed to re-open the Pre-Trial Conference and theyentered into a stipulation of facts as to the testimony to be given by the first prosecution witness,Forensic Chemist Police Inspector (P/Insp.) Lourdeliza Cejes.[9] As contained in the Pre-Trial

Order dated 5 August 2003, the parties stipulated on: (1) the due execution and genuineness ofthe Request for Laboratory Examination dated 8 March 2003, and the stamp showing receiptthereof by the Philippine National Police (PNP) Crime Laboratory; (2) the due execution,genuineness and truth of the contents of Physical Science Report No. D-405-03E issued byForensic Chemist P/Insp. Lourdeliza Cejes, the finding or conclusion appearing on the report,and the signature of the forensic chemist over her typewritten name appearing therein; and (3)the existence of the plastic sachets, but not their source or origin, contained in a brown envelope,the contents of which were the subject of the Request for Laboratory Examination.[10]

Thereafter, the cases were consolidated and tried jointly.[11]

The prosecution presented two witnesses: (1) Police Officer (PO)3 Carlo Luna

[12]

and (2) SeniorPolice Officer (SPO)3 Leneal Matias,[13] both members of the Station Drug Enforcement Unit(SDEU)[14] of the Pasig City Police Station.

The defense, on the other hand, presented (1) appellant Jerry Santos y Macol[15]; (2) appellantRamon Catoc y Picayo[16]; (3) Maria Violeta Catoc,[17] sister of appellant Catoc; and (4) EricSantos,[18] brother of appellant Santos.

The People's version of the facts shows that on 8 March 2003, the SDEU operatives of the PasigCity Police conducted a buy-bust operation in a residential area along Dr. Sixto Antonio Avenue,Brgy. Rosario, Pasig City, on the basis of reports that a certain alias Monching Labo was sellingillegal drugs in the said locality.[19] Accompanied by a confidential informant, the police teamcomposed of PO3 Carlo Luna, SPO3 Leneal Matias, PO1 Michael Espares and PO1 MichaelFamilara, proceeded to the target area at around 1:15 to 1:20 a.m. on the above-mentioned date.PO3 Carlo Luna was to act as the poseur-buyer, whereas the other members of the team were toserve as his backup.[20]

Upon reaching the designated place, PO3 Luna and the informant alighted from their vehicle,while the rest of the team were left inside.[21] The informant then pointed to two personsstanding along the target area, one of whom was Monching Labo, later identified as appellantRamon Catoc y Picayo.[22] After approaching, the informant introduced PO3 Luna as a shabu customer to one of the persons, later identified as appellant Jerry Santos y Macol. AppellantSantos then asked PO3 Luna how much worth of shabu he was buying and asked for the money.PO3 Luna gave appellant Santos the buy-bust money consisting of a pre-marked P100.00 bill.[23] Appellant Santos handed this money to appellant Catoc, who took out from his pocket a sealedtransparent plastic sachet containing a white crystalline substance,[24] which he handed back toappellant Santos. When appellant Santos gave the plastic sachet to PO3 Luna, the latter nabbedthe former and introduced himself as a policeman.[25]

At that point, the other members of the team arrived and likewise held and arrested appellant



Catoc. SPO3 Matias then ordered appellant Catoc to empty the contents of his pockets. Afterhaving done so, another plastic sachet containing a similar crystalline substance[26] wasrecovered from appellant Catoc, together with the marked P100.00 buy-bust money.[27] Immediately thereafter, the policemen marked the two plastic sachets.[28] The sachet handed byappellant Santos to PO3 Luna was marked with the latter's initials "CEL," his signature, and

appellant Santos's initials "JMS."

[29]

On the other hand, the sachet recovered from appellantCatoc by SPO3 Matias was marked with the latter's initials "LTM," his signature and appellantCatoc's initials "RPC."[30] The policemen then informed the appellants of their violations andapprised them of their constitutional rights.[31] Afterwards, appellants Santos and Catoc were brought to the Pasig City Police Station at Pariancillo Park, Pasig City, for proper investigation.

PO3 Luna submitted the two plastic sachets containing the white crystalline substance to thePNP Crime Laboratory Service, Eastern Police District in Mandaluyong City for an examinationof the contents thereof.[32] The laboratory test results as contained in Chemistry Report No. D-405-03E[33] stated the following:SPECIMEN SUBMITTED:

Two (2) heat-sealed transparent plastic sachets with markings "CEL/JMS 030803 and RPC/LTM030803" containing 0.03 gram of white crystalline substance and marked as A and Brespectively.

x x x x

FINDINGS:

Qualitative examination conducted on the above-stated specimens gave [a] POSITIVE result tothe tests for Methylamphetamine hydrochloride, a dangerous drug. x x x

CONCLUSION:

Specimens A and B contains (sic) Methylamphetamine hydrochloride, a dangerous drug.As expected, the appellants offered a version of the facts that was diametrically opposed to thatof the prosecution. According to them, there was no buy-bust operation to speak of and that priorto their arrests, they were literally strangers to each other.

Appellant Jerry Santos y Macol testified that on 8 March 2003, at around 12:00 midnight to 1:00a.m., while he was watching television at their house at 151 Dr. Sixto Antonio Avenue, Barangay(Brgy.) Rosario, Pasig City, and was about to sleep, five male persons in civilian clothingsuddenly entered and handcuffed him.[34] Santos claimed that he voluntarily went with the menwhen they tried to arrest him because his ailing mother, who was then awakened, was already becoming nervous.[35] Santos was brought outside and placed in a tricycle, and the entire groupleft for the police station. There, Santos was detained and questioned about the marked money,which he said he knew nothing about. Santos was then charged with the offense of selling illegaldrugs in violation of Section 5, Article II of Republic Act No. 9165.[36] It was also at that time inthe police station where he first met appellant Catoc.[37]



For his part, appellant Ramon Catoc y Picayo narrated that on 8 March 2003, between the hoursof 11:00 p.m. and 12:00 midnight, he awoke to a loud sound at the door of their house at 125 Dr.Sixto Antonio Avenue, Brgy. Rosario, Pasig City.[38] When Catoc opened the door, five male persons with guns entered their house.[39] The men frisked Catoc and searched his house. After being likewise awakened, Catoc's mother asked the men what his son's fault was. They replied

that they were looking for the drugs that Catoc was selling.

[40]

When their search yieldednothing, the men mauled Catoc. Afterwards, Catoc was placed in a tricycle and the groupheaded for a gasoline station along J. E. Manalo Street. There, Catoc was transferred to a parkedvan; inside the vehicle was appellant Jerry Santos y Macol, whom the former saw for the firsttime.[41] The men took the appellants to the police station in Pariancillo Park where they wereagain mauled. The policemen who arrested the appellants produced two plastic sachets of shabu and a P100.00 bill and alleged that the same were taken from Catoc's possession. The appellantswere then charged with violation of Sections 5 and 11, Article II of Republic Act No. 9165.[42]

On 4 May 2005, the trial court rendered its decision, the pertinent portion of which states:The Court is more inclined to give credence to the testimonies of the prosecution witnesses given

the presumption of regularity in the performance of official duty accorded to them by law and jurisprudence vis-Ã -vis the self-serving disclaimers of the herein accused whose version of theincident as narrated above hardly inspires belief.

It has been clearly established from the evidence adduced by the State that at around 1:00 in themorning of March 8, 2003, accused Jerry Santos and Ramon Catoc, in conspiracy with oneanother, sold or traded and delivered, to PO3 Carlo Luna, in a buy-bust operation, onetransparent plastic sachet of shabu containing white crystalline substance (Exh. "C-1") inconsideration of the amount of PHP 100.00 (Exh. "D"). x x x

That there was [a] conspiracy between the two accused as alleged in the information in CriminalCase No. 12193-D, is evident. The transaction was successfully consummated between the poseur buyer PO3 Luna, on the one hand, and the accused Ramon Catoc, together with his co-accused, Jerry Santos, on the other, with accused Santos receiving the marked money from the poseur buyer and thereafter handing the same to his co-accused Catoc who, thereafter, took outfrom his right pocket a plastic sachet of shabu which he gave to Santos, and which the latter inturn handed to PO3 Luna. There can be no other conclusion that can be drawn from the aboveconcerted actions of both accused, but that they were bound by a common purpose andcommunity of interest, indicative of conspiracy, in committing the offense charged against them.

On the same occasion of the buy-bust operation, the police officers were also able to recoverfrom the possession of accused Ramon Catoc another sachet of shabu weighing 0.03 grams (Exh."C-2") which is in violation of Section 11 (Possession of Dangerous Drugs), Article II of thesame law, subject of Criminal Case No. 12194-D, which penalizes the mere possession ofdangerous drugs w/o (sic) being authorized by law.

x x x x

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



In Criminal Case No. 12193-D, both accused, JERRY SANTOS y MACOL and RAMON

CATOC y PICAYO are hereby found GUILTY beyond reasonable doubt of the offense ofViolation of Section 5, Article II, Republic Act [No.] 9165 (illegal sale of shabu) and are herebysentenced to LIFE IMPRISONMENT and to solidarily pay a Fine of Five Hundred

Thousand Pesos (PHP500,000.00).

In Criminal Case No. 12194-D, accused RAMON CATOC y PICAYO is hereby foundGUILTY beyond reasonable doubt of the offense of Violation of Section 11, Article II, RepublicAct [No.] 9165 (illegal possession of shabu) and is hereby sentenced to Twelve (12) Years andOne (1) Day to Twenty (20) Years and to pay a Fine of Three Hundred Thousand Pesos

(PHP 300,000.00).

Considering the penalty imposed by the Court, [t]he immediate commitment of accused JerrySantos and Ramon Catoc to the National Penitentiary, New Bilibid Prisons, Muntinlupa City ishereby ordered.

Pursuant to Section 20 of Republic Act [No.] 9165, the amount of PHP 100.00 recovered fromaccused Ramon Catoc representing the proceeds from the illegal sale of the transparent plasticsachet of shabu is hereby ordered forfeited in favor of the government.

Again, pursuant to Section 21 of the same law, representatives from the Philippine DrugEnforcement Agency (PDEA) is (sic) hereby ordered to take charge and have custody over thesachets of shabu subject of these cases, for proper disposition.[43] In an Order dated 21 June 2005, the trial court elevated the entire records of the case to the Courtof Appeals for automatic review in accordance with our ruling in People v. Mateo.[44]

On 29 November 2006, the Court of Appeals rendered its decision, the dispositive portion ofwhich reads:WHEREFORE, the Decision appealed from is hereby AFFIRMED.In sustaining the trial court, the Court of Appeals ruled that the buy-bust operation conducted bythe SDEU operatives was legitimate and regular.[45] Furthermore, the testimonies of theappellants and their witnesses were said to have contained irreconcilable inconsistencies and thatno ill motive for the alleged frame-up was put forth by the appellants.[46]

Appellants Santos and Catoc filed a Notice of Appeal assailing the appellate court's decision before the Supreme Court.[47]

In a Resolution[48] dated 4 June 2007, the Court required the parties to file their respectivesupplemental briefs, if they so desired, within 30 days from notice. The parties manifested theirintention not to file their supplemental briefs anymore, as their respective Briefs alreadyencapsulated all the matters and arguments that support their positions.[49]

In pleading for their innocence, appellants assign the following errors:I.

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANTS



OF VIOLATION OF SECTIONS 5 AND 11, ARTICLE II, OF THE REPUBLIC ACT NO.9165, WHEN THE LATTER'S GUILT WERE NOT PROVEN BEYOND REASONABLEDOUBT.

II.

THE TRIAL COURT GRAVELY ERRED IN FINDING [THAT] THE ACCUSED-APPELLANTS CONSPIRED IN COMMITTING ILLEGAL SELLING AND ILLEGALPOSSESSION OF DANGEROUS DRUGS.Appellants contend that the trial court erred in convicting them, as their guilt was not proven beyond reasonable doubt, considering that the prosecution failed to prove that a buy-bustoperation took place and that their arrests without warrant were not legally effected. Appellantsalso maintain that there was no basis for the trial court's conclusion that a conspiracy existed between them.

The arguments put forth by the appellants fail to persuade.

Fundamental is the principle that findings of the trial courts which are factual in nature andwhich involve the credibility of witnesses are accorded respect when no glaring errors; grossmisapprehension of facts; and speculative, arbitrary and unsupported conclusions can begathered from such findings. The reason for this is that the trial court is in a better position todecide the credibility of witnesses, having heard their testimonies and observed their deportmentand manner of testifying during the trial. The rule finds an even more stringent applicationwhere said findings are sustained by the Court of Appeals.[50]

After a careful evaluation of the entire records of the instant case, we find no error in the trial andthe appellate courts' factual findings and conclusions.

For the successful prosecution of offenses involving the illegal sale of drugs under Section 5,Article II of Republic Act No. 9165, the following elements must be proven: (1) the identity ofthe buyer and seller, object, and consideration; and (2) the delivery of the thing sold and the payment therefor.[51] What is material to the prosecution for illegal sale of dangerous drugs isthe proof that the transaction or sale actually took place, coupled with the presentation in court ofevidence of corpus delicti.

[52]

In the present case, all the elements of the crime have been sufficiently established. The prosecution witnesses PO3 Luna and SPO3 Matias consistently testified that a buy-bustoperation did indeed take place, and the shabu subject of the sale was presented and dulyidentified in open court. PO3 Luna, being the poseur-buyer, positively identified appellantsSantos and Catoc as the persons who sold the sachet containing a white crystalline substance,[53] which was later confirmed by a chemical analysis thereof to be shabu.[54]

The relevant portions of PO3 Luna's testimony that detailed the events leading to the arrests ofappellants are as follows:Q: Do you remember having been assigned as a poseur buyer on said date, March 8, 2003?

A: Yes, sir.



Q: Against whom was supposed to be the task that you are going to perform as a poseur buyer?

A: Against Monching Labo, sir.

x x x x

Q: What was the basis of this planned operation against Monching Labo?

A: Because we have been receiving reports that this certain Monching Labo has been sellingillegal drugs along Dr. Sixto Avenue in Pasig, sir.

Q: Are you trying to say that March 8 was not the first time that you received informationregarding Monching Labo?

A: Yes, sir.

Q: But it was only March 8 that you decided to conduct a buy-bust operation against MonchingLabo?

A: Yes, sir.

Q: Were there preparations made by your office or by you regarding this plan, buy-bustoperation, to be conducted against Monching Labo?

A: Yes, sir, we contacted an informant to confirm where Monching Labo sells illegal drugs.

x x x x

Q: What are you going to use in buying?

A: Marked money, sir.

Q: Did you prepare for that also?

A: Yes, sir.

Q: Were there other police personnel that were assigned, aside from you, to conduct this buy- bust operation against Monching Labo?

A: Yes, sir, SPO3 Leneal Matias, PO1 Michael Espares and PO1 Michael Familara.

x x x x

Q: What were supposed to be the role of these other police officers that were going toaccompany you particularly, Matias, Espares and Familara?



A: They will act as back-up, sir.

Q: You said you prepared for a buy-money, how much was this?

A: One Hundred (PHP 100.00) Peso bill, sir.

x x x x

Q: Did you proceed, as plan, to the target area?

A: Yes, sir.

Q: And where was this, mr. (sic) witness?

A: Along Dr. Sixto Antonio, Brgy. Rosario, Pasig City, sir.

Q: What time did you reach that place?

A: About 1:15 to 1:20, sir.

Q: Of?

A: In the early morning of 1:15 to 1:20 a.m., sir.

Q: What else happened after you reached the place?

A: When we were ten (10) meters away from the designated area, the informant pointed to usto two persons who were standing along Dr. Sixto Antonio Avenue, Rosario, Pasig City, sir.

x x x x

Q: Who are these two persons, if you know?

A: According to the informant, he is Monching Labo, sir.

Q: Meaning, one of them is Monching Labo?

A: Yes, sir.

Q: After one of them has been identified by your informant, what else did you do if any, mr.(sic) witness?

A: The informant and I approached them, and I was introduced by the informant, sir.

Q: How were you introduced?



A: That I was a customer for shabu, and that I wanted to buy, sir.

Q: To whom did he tell from these two persons that you were interested to buy?

A: I was introduced to Jerry Santos, sir.

Q: In other words, the other person is a certain Jerry Santos?

A: Yes, sir.

x x x x

Q: After you were introduced as [an] interested buyer to said Jerry Santos, what else happenedafter that?

A: He asked me how much would I buy, and he asked me for the money. And then, I told himust PHP100.00, sir.

Q: And when Jerry Santos asked you for the money, did you give him the money?

A: Yes, sir.

Q: And after you gave him the money, what happened next?

A: I saw Jerry handed the money to the other person, sir.

Q: When you say other person, this is Monching Labo?

A: Yes, sir.

Q: And after Jerry Santos handed the One Hundred (PHP100.00) Peso bill to Monching Labo,what else happened, if any?

A: Monching Labo took the PHP100.00 bill. After that, he put it inside his pocket, and then, hegot something from his pocket and handed it to Jerry, sir.

Q: And after this something was handed to Jerry Santos, what else happened?

A: Jerry Santos gave to me what was given to him by Monching, sir.

Q: And to your personal knowledge, what is that something that was given by Monching toJerry Santos who, Jerry Santos in turn handed to you?

A: That was the shabu I was buying which was contained in a plastic sachet, sir.



Q: When you say contained in a plastic sachet, you mean there is only one (1)?

A: Yes, sir.

Q: After you received this one alleged plastic sachet of shabu from Jerry Santos, what else did

you do, if any?

A: I held Jerry Santos and introduced myself as a police officer, sir.

Q: After that, what happened next, if any?

A: My companions arrived and then, they also held Monching Labo sir.

Q: What else happened after that, mr. (sic) witness?

A: Police Officer Matias ordered Monching Labo to empty the contents of his pocket, sir.

Q: And did Monching Labo comply?

A: Yes, sir.

Q: Would you know what Matias discovered after Monching Labo complied with his order toempty his pocket?

A: Yes, sir, because he also recovered another plastic sachet, sir.

Q: Who recovered?

A: SPO3 Matias, sir.

Q: Which came from the pocket of Monching Labo?

A: Yes, sir.

Q: After this, what did you do or, your team do to the two persons?

A: We brought them to our office at the Headquarters for proper investigation, sir.

Q: How about the two plastic sachets, the first one that was sold and the other one that wasrecovered by SPO3 Matias, what was your disposition about it?

A: Right there and then at the place, we already placed the markings on the sachets, sir.

Q: After that, what else did you do with these two sachets?

A: We submitted the same to the laboratory for examination, sir.



Q: Do you remember who delivered it personally?

A: Yes, sir.

Q: Who?

A: I did, sir.

Q: Did you come to know later the true identity of Jerry Santos and Monching Labo to whomyou have transaction?

A: Yes, sir.

Q: Would Jerry Santos [be] the true name of this Jerry Santos you mentioned earlier?

A: Yes, sir.Q: How about this Monching Labo, did you come to know what is his true name?

A: Yes, sir. After we have brought him to the police station, that's when we discovered his realname, sir.

Q: And what is his real name?

A: Ramon Catoc, sir.The testimony of SPO3 Matias on the conduct of the buy-bust operation corroborated the abovetestimony of PO3 Luna on all material points and was equally clear and categorical.

Also proven from the testimonies of both PO3 Luna and SPO3 Matias is the charge againstappellant Catoc in Criminal Case No. 12194-D for violation of Section 11, Article II, RepublicAct No. 9165 (illegal possession of dangerous drugs). It was shown that appellant knowinglycarried with him the plastic sachet of shabu without legal authority at the time he was caughtduring the buy-bust operation.

On the other hand, the appellants' contention that no buy-bust operation took place was plainlyanchored on the testimonies of both appellants, who both gave different versions of whattranspired during the time and date in question; of Maria Violeta Catoc, sister of appellantRamon Catoc; and of Eric Santos, the brother of appellant Jerry Santos. Both appellantschorused a single line â€― alibi. They strongly insisted that they were in their respective houses

during the alleged operations.

The singular reliance of the appellants on their alibis to argue their cases was misplaced. Asobserved by the trial court, the self-serving disclaimers of the appellants inspired less belief thanthe testimonies of the prosecution witnesses, who had in their favor a presumption of regularityaccorded to them by law.[56] The respective alibis of appellants and their witnesses also



contained irreconcilable inconsistencies that only weakened their worth.

We uphold the presumption of regularity in the performance of official duties. This presumptionin favor of PO3 Luna and SPO3 Matias was not overcome. As testified to by the appellants, theydid not know any of the policemen who arrested them, and it was only during the trial in open

court that they came to know of the identities of the above-mentioned policemen.

[57]

Thus, therewas no indication that the police were impelled by any improper motive in making the arrests.

In appellant Jerry Santos's testimony on the events leading to his arrest, he repeatedly changedhis answer upon being asked why he voluntarily went with the five men who entered his houseon the night in question. In his direct testimony, appellant Santos testified that he went with themen so that his mother's nervousness would not be further aggravated.[58] During his cross-examination, he then stated that he voluntarily went with the men so as not to awaken hissleeping mother.[59] Upon being confronted with these statements, Santos then changed hisanswer again and stated that his mother was already awake at the time he went with the policemen.[60]

More glaring than the above-mentioned inconsistencies, however, are the discrepancies in thetestimonies of appellants Jerry Santos and Ramon Catoc on the manner in which they were takento the police station and the circumstances of their first meeting. The very premise of theirdefense is that they were total strangers to each other; thus, they could not have been together atthe time when they were arrested, much less were they in conspiracy with each other in thealleged commission of the crimes charged.

Appellant Jerry Santos testified that after he was brought out of his house, he was placed in atricycle and was then taken straight to the police station in Pariancillo Park, Pasig City.[61] Whilein detention, he allegedly met Ramon Catoc for the first time. [62]

Appellant Ramon Catoc, on the other hand, gave an entirely contradictory account of the saidevents. Catoc narrated in his direct testimony that after the men took him and placed him in atricycle, he was taken to a gasoline station along J. E. Manalo Street and was transferred to a parked van. Aboard the vehicle, he said, was appellant Santos, whom he claimed he saw andcame to know for the first time.[63]

Even the testimony of defense witness Eric Santos, the brother of appellant Jerry Santos,contained some noticeable incongruity with the appellants' narration of events. As remarkedupon by the Court of Appeals,[64] Eric Santos testified that the arrest of his brother was made at8:00 p.m. on 8 March 2003.[65] The timeline of both the prosecution and the defense, however, puts the occurrence of the events in question between the hours of 11:00 p.m. and 1:00 a.m.[66]

The testimonies of Maria Violeta Catoc, sister of appellant Catoc, and Eric Santos, brother ofappellant Santos, are also suspect. Without clear and convincing evidence, no credence can beaccorded them.

In all of the above instances, no satisfactory explanation was offered by appellants to resolve theconflicting accounts. No other evidence was likewise offered to buttress these testimonies,



thereby weakening appellants' alibis, as against the candid and straightforward testimonies of the prosecution witnesses.

As consistently enunciated by this Court, the established doctrine is that, for the defense of alibito prosper, the accused must prove not only that he was at some other place at the time of the

commission of the crime, but also that it was physically impossible for him to be at the locuscriminis or within its immediate vicinity. The defense of alibi must be established by positive,clear and satisfactory evidence, the reason being that it is easily manufactured and usually sounreliable that it can rarely be given credence. This is especially true in case of positiveidentification of the culprit by reliable witnesses, which renders their alibis worthless. Positiveidentification prevails over denials and alibis.[67]

What is quite important to note at this point is the fact that the defense failed to point out anysingle mistake or inconsistency in the testimonies of either policeman. Consequently, therespective rulings of the trial court and the Court of Appeals upholding the regularity and thelegitimacy of the conduct of the buy-bust operation in this case are hereby affirmed.

The claim of appellants that their warrantless arrests were illegal also lacks merit. The Courtnotes that nowhere in the records did we find any objection by appellants to the irregularity oftheir arrests prior to their arraignment. We have held in a number of cases that the illegal arrestof an accused is not a sufficient cause for setting aside a valid judgment rendered upon asufficient complaint after a trial free from error; such arrest does not negate the validity of theconviction of the accused. It is much too late in the day to complain about the warrantless arrestafter a valid information has been filed, the accused arraigned, trial commenced and completed,and a judgment of conviction rendered against him.[68]

Nevertheless, our ruling in People v. Cabugatan[69] provides that:

The rule is settled that an arrest made after an entrapment does not require a warrant inasmuch asit is considered a valid warrantless arrest pursuant to Rule 113, Section 5(a) of the Rules ofCourt, which states:SEC. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, withouta warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or isattempting to commit an offense.As we have already declared the legality of the buy-bust operation that was conducted by the police, it follows that the subsequent warrantless arrests were likewise legally effected.Furthermore, any search resulting from the lawful warrantless arrests was also valid, because theappellants committed a crime in flagrante delicto; that is, the persons arrested committed a crimein the presence of the arresting officers.[70]

As for appellants' contention that the trial court erred in finding the existence of a conspiracy, thesame should also fail. Contrary to appellants' assertions,[71] the findings of the trial court that theyconspired with each other is limited only to the crime of illegal sale of dangerous drugs inCriminal Case No. 12193-D, and does not pertain to the crime of illegal possession of dangerousdrugs in Criminal Case No. 12194-D.



There is conspiracy when two or more persons come to an agreement concerning the commissionof a felony and decide to commit it. The same degree of proof necessary to prove the crime isrequired to support a finding of criminal conspiracy. Direct proof, however, is not essential toshow conspiracy.[72] It need not be shown that the parties actually came together and agreed in

express terms to enter into and pursue a common design. Proof of concerted action before,during and after the crime, which demonstrates their unity of design and objective issufficient.[73] As correctly held by the trial court, the act of appellant Santos in receiving themarked money from PO3 Luna and handing the same to appellant Catoc, who in turn gave asachet containing shabu to appellant Santos to give the policeman, unmistakably revealed acommon purpose and a community of interest indicative of a conspiracy between theappellants.[74]

In light of the foregoing, we rule that the guilt of appellants Santos and Catoc has beenestablished beyond reasonable doubt. A determination of the appropriate penalties to be imposedupon them is now in order.

Under the law, the illegal sale of shabu carries with it the penalty of life imprisonment to deathand a fine ranging from five hundred thousand pesos (P500,000.00) to ten million pesos(P10,000,000.00), regardless of the quantity and purity of the substance involved or shall act as a broker in any such transaction.[75] On the other hand, the illegal possession of less than five (5)grams of said dangerous drug is penalized with imprisonment of twelve (12) years and one (1)day to twenty (20) years and a fine ranging from three hundred thousand pesos (P300,000.00) tofour hundred thousand pesos (P400,000.00).[76]

In accordance with Section 98, Article XIII of Republic Act No. 9165, the provisions of theRevised Penal Code find limited applicability with respect to the provisions of the said Act.Section 98 reads:Sec. 98. Limited Applicability of the Revised Penal Code. â€― Notwithstanding any law, rule or

regulation to the contrary, the provisions of the Revised Penal Code (Act No. 3815), as amended,shall not apply to the provisions of this Act, except in the case of minor offenders. Where theoffender is a minor, the penalty for acts punishable by life imprisonment to death provided hereinshall be reclusion perpetua to death.Thus, in determining the imposable penalty, Article 63(2) of the Revised Penal Code shall not beapplied. Under this article, in all cases in which the law prescribes a penalty composed of twoindivisible penalties, the lesser penalty shall be applied when there are neither mitigating noraggravating circumstances.[77] Since Section 98 of the Drugs Law contains the word "shall," thenon-applicability of the Revised Penal Code provisions is mandatory, subject to exception onlyin case the offender is a minor.[78]

In the imposition of the proper penalty, the courts, taking into account the circumstancesattendant in the commission of the offense, are given the discretion to impose either lifeimprisonment or death, and the fine as provided for by law. In light, however, of the effectivityof Republic Act No. 9346 entitled, "An Act Prohibiting the Imposition of Death Penalty in thePhilippines," the imposition of the supreme penalty of death has been prohibited. Consequently,the penalty to be meted out to appellant shall only be life imprisonment and fine.[79] Hence, the



penalty of life imprisonment and a fine of P500,000.00 were properly imposed on appellantsJerry Santos y Macol and Ramon Catoc y Picayo in Criminal Case No. 12193-D for illegal saleof shabu.

Likewise, the conviction of appellant Ramon Catoc y Picayo and the imposition of the penalty of

twelve (12) years and one (1) day to fifteen (15) years imprisonment and the fine of P300,000.00meted out by the trial court with respect to Criminal Case No. 12194-D for illegal possession of shabu, are affirmed.

WHEREFORE, premises considered, the Decision dated 29 November 2006 of the Court ofAppeals in CA-G.R. CR-H.C. No. 01291, affirming in toto the Decision of the Regional TrialCourt of Pasig City, Branch 70, in Criminal Case No. 12193-D and Criminal Case No. 12194-D,is hereby AFFIRMED. No costs.

SO ORDERED.

PEOPLE OF THE PHILIPPINES,

Appellee,

- versus -

CHRISTOPHER DE MESA and EMMANUEL

GONZALES,

Appellants.

G.R. No. 188570

Present:

CARPIO, J.,

Chairperson,

NACHURA,

LEONARDO-DE CASTR0,

ABAD, and

MENDOZA, JJ.

Promulgated:

July 6, 2010

http://sc.judiciary.gov.ph/jurisprudence/2010/july2010/188570.htm#_ftn1






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

DECISION

NACHURA, J .:

Before this Court is an appeal by Christopher de Mesa and Emmanuel

Gonzales, accused in Criminal Case No. 04-0445, filed beforethe Regional Trial Court of Parañaque City. Appellants were charged with and

convicted of Illegal Sale of Dangerous Drugs, punishable under Republic Act (R.A.)

No. 9165.[1] Their conviction was affirmed by the Court of Appeals (CA) in a

Decision dated February 27, 2009.[2]

The prosecution’s evidence showed that, at around 10:00 a.m. of April 7,

2004, while Police Officer 2 (PO2) Peter Sistemio was at the Philippine DrugEnforcement Agency (PDEA) office in Quezon City, one of their confidential

informants arrived and notified their team leader, Police Senior Inspector Jaime

Santos (S/Insp. Santos), of the illegal drug activities of a certain “Pulo,” later

identified as appellant De Mesa. S/Insp. Santos immediately instructed the

confidential informant to contact De Mesa by cellular phone, and order 50 grams

of shabu. The confidential informant and “Pulo” agreed to meet at

KFC, Redemptorist Road, Baclaran, Parañaque City, at around 1:00 p.m. of the

same date.[3]

S/Insp. Santos then formed a team to undertake a buy-bust operation.

During their briefing, PO2 Sistemio was designated to act as a poseur-buyer, while

Police Officer 1 (PO1) Reywin Bariuad was to act as his immediate backup. S/Insp.

Santos also handed PO2 Sistemio one piece of genuine Five Hundred Peso















(P500.00) bill, on which the latter wrote his initials (“PVS”), and some boodle

money to be used for the purchase of the shabu.[4]

The team then proceeded to the target area. The members of the teampositioned themselves in their designated places. De Mesa, alias “Pulo,” and his

companion, a certain “Kamote,” who was later identified as appellant Emmanuel

Gonzales, arrived and approached PO2 Sistemio and the confidential informant.

PO1 Bariuad, on the other hand, positioned himself four tables away from

appellants. After the confidential informant introduced PO2 Sistemio as the buyer

of shabu, De Mesa asked if the latter had the money. PO2 Sistemio answered in

the affirmative. De Mesa then handed to PO2 Sistemio a blue SM Department

Store plastic bag containing 10 plastic sachets of white crystalline substancesuspected to beshabu. De Mesa then ordered Gonzales to take the money from

PO2 Sistemio. Gonzales then allegedly told PO2 Sistemio, “First class yan, pare,

direkta kasi kami .”[5] At that instance, PO2 Sistemio introduced himself as a PDEA

agent, and PO1 Bariuad closed in. The police officers then arrested appellants

and brought them first to a barangay hall at the back ofBaclaran Church before

they proceeded to the PDEA office. [6]

At the PDEA office, the arresting officers prepared documents for inquestproceedings, as well as a letter-request for the laboratory examination of the

specimen.[7] Upon examination at the Philippine National Police (PNP) Crime

Laboratory, it was learned that the white crystalline specimen, weighing 45.79

grams, recovered from appellants was positive as Methylamphetamine

Hydrochloride or shabu.[8]

PO1 Bariuad corroborated PO2 Sistemio’s testimony.[9]

The defense, on the other hand, presented its own version of the facts.

Appellant De Mesa narrated that, at around 12 noon of April 7, 2004, he and

Gonzales went to the KFC restaurant on Redemptorist Road,



























The Clerk of Court is hereby directed to forward the specimen subject of this case

to the Philippine Drugs (sic) Enforcement Agency (PDEA) for proper disposition and to

prepare the Mittimus for the immediate transfer of both accused to the New Bilibid

Prisons Muntinlupa.

SO ORDERED.[12]

Appellants appealed their conviction to the CA. On February 27, 2009, the

CA rendered judgment dismissing the appeal and affirming the trial court’s

decision.[13]

In their Supplemental Brief ,[14] appellants reiterated their arguments before

the CA. They aver that the prosecution failed to indubitably establish that

the shabu presented in court as evidence was the very same white crystalline

substance allegedly sold by and seized from them. They allege that the police

officers failed to strictly abide by the requirements of the law on the proper

handling and custody of dangerous drugs in the course of the alleged buy-bust

operation. They claim that no photographs of the seized items were taken and noinventory report was made by the apprehending officers. They also claim that the

police officers’ testimonies failed to establish when and where the seized items

were marked.

The appeal has no merit and must be dismissed.

In a prosecution for illegal sale of dangerous drugs, the following elements

must be proven: (1) that the transaction or sale took place; (2) that the corpus

delicti or the illicit drug was presented as evidence; and (3) that the buyer and

seller were identified.[15] The presence of these elements is sufficient to support

the trial court’s finding of appellants’ guilt.[16] What is material is the proof that























the transaction or sale actually took place, coupled with the presentation in court

of the prohibited or regulated drug. The delivery of the contraband to the poseur-

buyer and the receipt of the marked money consummate the buy-

bust transaction between the entrapping officers and the accused.[17] The

presentation in court of the corpus delicti — the body or substance of the crime – establishes the fact that a crime has actually been committed.[18]

Records disclose that the prosecution successfully established the elements

of the crime.

Appellants tried to pin the crime on an unknown third person, who wasallegedly the actual target of the buy-bust operation, and claimed that they were

erroneously implicated in the crime. The claim, however, is incredible. There is no

proof that they were merely picked up with the “true” suspect who was allegedly

released from detention before they were arraigned. Appellants have not

satisfactorily explained why this person was not charged along with them.

Moreover, nothing in the record even remotely indicates that there was

indeed a third person arrested with them. Immediately after their arrest,

appellants were brought to a barangay hall where a barangay official witnessed

the inventory of the items seized, and signed the Certification.[19] The Certification

contains only the names of herein appellants De Mesa and Gonzales, along with

the name and signature of Reynaldo Go, Executive Officer of Barangay Baclaran.

Even if, as appellants claim, the third person arrested with them made a “deal”

with the PDEA officers later on, this third person’s arrest should have likewise

been reflected in all the documents pertaining to their arrest, which were all

executed before such deal was allegedly made. In addition, the request forphysical examination[20] and drug dependency examination[21] of appellants

indicates the names of only the two appellants.[22]

























Likewise, the letter of S/Insp. Santos, requesting appropriate legal action by

the city prosecutor dated April 8, 2004, states that there were only two

suspects.[23] The joint affidavit of arrest[24] prepared by PO2 Sistemio and PO1

Bariuad narrated the buy-bust operation and arrest of appellants as the only two

suspects in the case. All in all, the evidence clearly and convincingly proves thatherein appellants were the subject of the buy-bust operation conducted by PDEA

operatives on April 7, 2004.

In contrast, the trial court found that the arresting officers testified in a

straightforward manner[25] such that the court was convinced that “no ill motive

or wrong doing could be ascribed” to the latter.[26] The trial court also held that

“unlike in many other cases tried before this Court where certain irregularitieswere committed by police operatives that cast doubt on the credibility of the

operations, this operation appears to have been made without abuse and in a

regular manner.”[27]

In cases involving violations of the Dangerous Drugs Law, appellate courts

tend to rely heavily on the trial court’s assessment of the credibility of witnesses,

because the latter had the unique opportunity, denied to the appellate courts, to

observe the witnesses and to note their demeanor, conduct, and attitude underdirect and cross-examination. Hence, its factual findings are accorded great

respect, even finality, absent any showing that certain facts of weight and

substance bearing on the elements of the crime have been overlooked,

misapprehended, or misapplied.[28]

Next, appellants contend that the police officers failed to strictly abide by

the requirements of the law as regards the proper handling and custody ofdangerous drugs seized in the course of an alleged buy-bust operation.[29]

This contention is likewise unmeritorious.






























Section 21 of R.A. No. 9165 states:

Sec. 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:

(1) The apprehending team having initial custody and control ofthe 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[.]

On the other hand, the Implementing Rules and Regulations (IRR) of R.A.

No. 9165 states:

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 electedpublic 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 the

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[.]

As this Court has held in a number of previous cases, non-compliance with

Section 21 is not fatal and will not render an accused’s arrest illegal or make the

items seized inadmissible. What is of utmost importance is the preservation of the

integrity and evidentiary value of the seized items.[30]

Contrary to appellants’ assertion, the prosecution presented an unbroken

chain of custody of the dangerous drugs seized from appellants at the time of the

buy-bust operation until the items seized were examined at the PNP Crime

Laboratory, all of which took place in only a matter of hours. The request for

laboratory examination was given on the same day, April 7, 2004.[31] The Initial

Laboratory Report on the items seized was also issued on the same day.[32] The

laboratory report was signed by no less than three police officers.

The integrity of the evidence is presumed to have been preserved unless

there is a showing of bad faith, ill will, or proof that the evidence has been

tampered with. Appellants in this case bear the burden of showing that the















evidence was tampered or meddled with in order to overcome a presumption of

regularity in the handling of exhibits by public officers and a presumption that

public officers properly discharged their duties.[33] Appellants in this case failed to

present any plausible reason to impute ill motive on the part of the arresting

officers. Thus, the testimonies of the apprehending officers deserve full faith andcredit.[34]

WHEREFORE, the foregoing premises considered, the appeal is

hereby DISMISSED and the Decision of the Court of Appeals in CA-G.R. CR-H.C.

No. 02581 dated February 27, 2009 is AFFIRMED.

SO ORDERED.

NELSON T. LLUZ and

CATALINO C. ALDEOSA,

Petitioners,

G.R. No. 172840

Present:

PUNO,* C.J.,

QUISUMBING,**

YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,

CARPIO,

AUSTRIA-MARTINEZ,

CORONA,

- versus - CARPIO MORALES,

AZCUNA,







http://sc.judiciary.gov.ph/jurisprudence/2007/june2007/172840.htm#_ftn1












TINGA,

CHICO-NAZARIO,

GARCIA,

VELASCO, JR., and

NACHURA, JJ.

COMMISSION ON ELECTIONS Promulgated:

and CAESAR O. VICENCIO,

Respondents. June 7, 2007

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

D E C I S I O N

CARPIO, J.:

The Case

This petition for certiorari[1] seeks to annul the Resolutions of the

Commission on Elections (COMELEC) En Banc dated 1 February 2006 and 25 May







2006 in E.O. Case No. 04-5. The 1 February 2006 resolution ruled that no probable

cause exists to charge private respondent Caesar O. Vicencio with violation of

Section 262 in relation to Section 74 of BatasPambansa Blg. 881 (B.P. 881),

otherwise known as the Omnibus Election Code. The 25 May 2006 resolution

denied petitioners Nelson T. Lluz and Catalino C. Aldeosa’s motion forreconsideration of the 1 February 2006 resolution.

The Facts

Private respondent was a candidate for the postof punong barangay of Barangay 2, Poblacion, Catubig, Samar in the 15 July

2002 Synchronized Barangay and Sangguniang KabataanElections. In his

certificate of candidacy, private respondent stated his profession or occupation as

a certified public accountant (CPA). Private respondent won in the elections.

Sometime after private respondent’s proclamation, petitioners charged him

before the Law Department of the COMELEC (Law Department) with violation ofSection 262 in relation to Section 74 of B.P. 881. Petitioners claimed they had

proof that private respondent misrepresented himself as a CPA. Attached to

petitioners’ complaint was a Certification signed by JoseAriola, Director II,

Regulations Office of the Professional Regulation Commission (PRC), stating that

private respondent’s name does not appear in the book of the Board of

Accountancy. The book contains the names of those duly authorized to practice

accountancy in the Philippines.

In his Answer, private respondent maintained that he was a CPA and alleged

that he passed the CPA Board Examinations in 1993 with a rating of 76%. Private

respondent argued that he could not be held liable for an election offense

because his alleged misrepresentation of profession was not material to his

eligibility as a candidate.



On 21 September 2004, the Law Department through its

Director Alioden D. Dalaig issued a subpoena requiring the Chief of

the PRC’s Records Section to appear before it and settle the controversy on

whether private respondent was indeed a CPA. On 6 October 2004, PRC Records

Section Officer-in-Charge Emma T. Francisco appeared before the Law

Department and produced a Certification showing that private respondent had

taken the 3 October 1993 CPA Board Examinations and obtained a failing mark of

40.71%.

Nevertheless, the Law Department recommended the dismissal of

petitioners’ complaint. Citing the rulings of this Court in Romualdez-Marcos v.

COMELEC [2] and Salcedo II v. COMELEC ,[3]

the Law Department held that the

misrepresentation in private respondent’s certificate of candidacy was not

material to his eligibility as a candidate and could not be a ground for his

prosecution.

However, upon motion of petitioners, the COMELEC En Banc by Resolution

dated 5 October 2005 ordered the Law Department to file an information againstprivate respondent for violation of Section 262 in relation to Section 74 of B.P.

881. In reversing the resolution of the Law Department, the COMELEC En

Banc ruled that Romualdez-Marcos and Salcedo were disqualification cases not

applicable to the case of private respondent who is sought to be prosecuted for

an election offense. As such, the misrepresentation made by private respondent

need not be material to his eligibility as a candidate in order to hold him liable

under Section 262. The COMELEC En Banc further ruled that election offenses

are mala prohibita, in which case no proof of criminal intent is required and good

faith, ignorance, or lack of malice are not valid defenses.

On 18 October 2005, private respondent moved for reconsideration.










The Ruling of the COMELEC

On 1 February 2006, the COMELEC En Banc reconsidered its earlierResolution, explaining thus:

After a careful evaluation x x x [w]e rule to grant the motion for reconsideration.

Criminal intent is not absolutely disregarded in election offense cases. A good

example is the provision of Section 261(y)(17) of [B.P. 881], which requires malicious

intent in order that a person may be charged for omitting, tampering, or transferring to

another list the name of a registered voter from the official list of voters posted outside

the polling place.

In relation thereto, the fact that an offense is malum prohibitum does not exempt

the same from the coverage of the general principles of criminal law. In this case, the

provisions of Section 261 of [B.P. 881] must not be taken independent of the concepts

and theories of criminal law.

The offense allegedly committed by the respondent is for failure to disclose his

true occupation as required under Section 74 of [B.P. 881]. Apparently, respondent

misrepresented himself as a CPA when in fact he is not. The misrepresentation having

been established, the next issue posited by the parties is whether or not the

misrepresentation should be material before it can be considered as an election

offense.

We answer in the affirmative. Violation of Section 74 is a species of perjury,

which is the act of knowingly making untruthful statements under oath. Settled is the

rule that for perjury to be committed, it must be made with regard to a material matter.



Clearly, the principle of materiality remains to be a crucial test in determining

whether a person can be charged with violating Section 74 of [B.P. 881] in relation to

Section 262 thereof.

The case of [Salcedo] sheds light as to what matters are deemed material with

respect to the certificate of candidacy, to wit: citizenship, residency and other

qualifications that may be imposed. The nature of a candidate’s occupation is definitely

not a material matter. To be sure, we do not elect a candidate on the basis of his

occupation.[4]

Petitioners filed a motion for reconsideration, which the COMELEC En

Banc denied in the assailed Resolution dated 25 May 2006. The COMELEC

declared that while it “condemn*ed] in the strongest possible terms” private

respondent’s “morally appalling, devious, calculating, *and+ deceitful” act, it could

not prosecute private respondent for an election offense, but possibly only for an

administrative or criminal offense.

Hence, this petition.

The Issues

Petitioners argue that:

1. The assailed resolutions failed to consider that a violation of Section

262 in relation to Section 74 of B.P. 881 is malum prohibitum;







2. The ruling in Salcedo is not applicable to petitioners’

complaint, that is, a fact misrepresented in a certificate of

candidacy need not be material in order to constitute a violation of

Section 262 in relation to Section 74 of B.P. 881; and

3. Assuming arguendo that materiality of a misrepresentation

is required to constitute a violation of Section 262 in relation

to Section 74 of B.P. 881, the assailed resolutions should have

held material private respondent’s misrepresentation because it

increased his chances of winning in the elections.

The Ruling of the Court

Petitioners come to us on a single question of law: is an alleged

misrepresentation of profession or occupation on a certificate of candidacy

punishable as an election offense under Section 262 in relation to Section 74 of

B.P. 881?

We rule in the negative.

In urging the Court to order the COMELEC to file the necessary information

against private respondent, petitioners invoke Sections 262 and 74 of B.P. 881,

which we reproduce below:

Section 262. Other election offenses.—Violation of the provisions, or pertinent

portions, of the following sections of this Code shall constitute election

offenses: Sections 9, 18, 74, 75, 76, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 95, 96, 97, 98,

99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 122, 123, 127, 128,



129, 132, 134, 135, 145, 148, 150, 152, 172, 173, 174, 178, 180, 182, 184, 185, 186, 189,

190, 191, 192, 194, 195, 196, 197, 198, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211,

212, 213, 214, 215, 216, 217, 218, 219, 220, 223, 229, 230, 231, 233, 234, 235, 236, 239

and 240. (Emphasis supplied)

Section 74. Contents of certificate of candidacy.—The certificate of candidacy

shall state that the person filing it is announcing his candidacy for the office stated

therein and that he is eligible for said office; if for Member of the Batasang Pambansa,

the province, including its component cities, highly urbanized city or district or sector

which he seeks to represent; the political party to which he belongs; civil status; his date

of birth; residence; his post office address for all election purposes; his profession or

occupation; that he will support and defend the Constitution of the Philippines and will

maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and

decrees promulgated by the duly constituted authorities; that he is not a permanentresident or immigrant to a foreign country; that the obligation imposed by his oath is

assumed voluntarily, without mental reservation or purpose of evasion; and that the

facts stated in the certificate of candidacy are true to the best of his knowledge.

Unless a candidate has officially changed his name through a courtapproved proceeding, a candidate shall use in a certificate of candidacy the name by which he has been baptized, or he has not been baptized in any church orreligion, the name registered in the office of the local civil registrar or any other

name allowed under the provisions of existing law or, in the case [of] a Muslim,his Hadji name after performing the prescribed religious pilgrimage: Provided,That when there are two or more candidates for an office with the same name andsurname, each candidate, upon being made aware or such fact, shall state his paternal and maternal surname, except the incumbent who may continue to usethe name and surname stated in his certificate of candidacy when he was elected.He may also include one nickname or stage name by which he is generally or popularly known in the locality.

The person filing a certificate of candidacy shall also affix his latest photograph,

passport size; a statement in duplicate containing his bio-data and program ofgovernment not exceeding one hundred words, if he so desires. (Emphasis supplied)

The penal coverage of Section 262 is limited.



From a cursory reading of Sections 262 and 74 of B.P. 881, one may possibly

conclude that an act or omission in violation of any of the provisions of Section

74 ipso factoconstitutes an election offense. Indeed, petitioners point out that

private respondent’s misrepresentation of profession having been proved before

the COMELEC, the latter is compelled to prosecute him for violation of Section

262. Petitioners argue that such a violation being an election offense, it

is malum prohibitum and immediately gives rise to criminal liability upon proof of

commission.

Petitioners’ stance assumes that Section 262 penalizes without qualification

the violation of the sections it enumerates. This assumption is uncalled for in viewof the wording of Section 262.

The listing of sections in Section 262 is introduced by the clause: “Violation

of the provisions, or pertinent portions, of the following sections shall constitute

election offenses: x xx.” The phraseology of this introductory clause alerts us

that Section 262 itself possibly limits its coverage to only pertinent portions of

Section 74. That such a possibility exists must not be taken lightly for two reasons.First, were the phrase not necessary, the law’s framers would have instead

directly declared that violation of “the provisions” or “any provision” of the

enumerated sections — without any qualification — would constitute an election

offense. It is a settled principle in statutory construction that whenever possible, a

legal provision, phrase, or word must not be so construed as to be meaningless

and a useless surplusage in the sense of adding nothing to the law or having no

effect on it.[5] Second, equally well-settled is the rulethat a statute

imposing criminal liability should be construed narrowly in its coverage such that

only those offenses clearly included, beyond reasonable doubt, will be considered

within the operation of the statute.[6] A return to Section 74 is thus imperative.











Section 74 enumerates all information which a person running for public

office must supply the COMELEC in a sworn certificate of candidacy. Section 74

specifies that a certificate of candidacy shall contain, among others, a statement

that the person is announcing his or her candidacy for the office and is eligible forsuch office, the unit of government which the person seeks to represent, his or

her political party, civil status, date of birth, residence, and profession or

occupation. Section 74 further requires that the person make several

declarations: “that he will support and defend the Constitution of the Philippines

and will maintain true faith and allegiance” to it, “that he will obey the laws, legal

orders, and decrees promulgated by the duly constituted authorities,” “that he is

not a permanent resident or immigrant to a foreign country,” “that the obligation

imposed by his oath is assumed voluntarily,” and “that the facts stated in the

certificate of candidacy are true to the best of his knowledge.”

Section 74 does not expressly mention which portion in its provisions is

pertinent to Section 262, or which among its provisions when

violated is punishable as an election offense.Nothing in Section 74 partakes

unmistakably of a penal clause or a positive prohibition comparable to those

found in other sections[7]

also mentioned in Section 262 that use the words “shallnot.” The Court is then left to interpret the meaning of Section 74 to determine

which of its provisions are penalized under Section 262, and particularly if

disclosure of profession or occupation is among such provisions.

Our rulings in Abella v. Larrazabal

and Salcedo clarify the concept of

misrepresentation under B.P. 881.







The issue in this case is novel, yet the facts and provisions of law now before

us call to mind the cases of Abella v. Larrazabal [8] and Salcedo, perhaps the closest

this case has to a relevant precedent.

Abella dwelt on the issue of misrepresentation of residence in a certificate

of candidacy. Petitioner Abella had filed a case against private

respondent Larrazabal before the COMELEC on the ground that the latter falsely

claimed to be a resident of Kananga, Leyte in her certificate of candidacy. In the

course of the hearing, Larrazabal moved for clarification of the nature of the

proceedings, asking the COMELEC to determine under what law her qualifications

were being challenged. The COMELEC, by process of elimination, determined thatthe proceeding was not (1) intended against a nuisance candidate under Section

69 of B.P. 881, as Larrazabal was obviously a bona fide candidate; (2) a petition

for quo warranto under Section 253 which could be filed only

after Larrazabal’s proclamation, as Larrazabal had not yet been proclaimed; (3) a

petition to deny due course to Larrazabal’s certificate of candidacy under Section

78, asAbella’s petition did not contain such prayer and was not filed in the

manner required by the COMELEC Rules of Procedure; or (4) a petition for

disqualification under Section 68, asLarrazabal was not being charged with thecommission of any election offense mentioned under the section. The COMELEC

concluded that “the subject of the petition, to wit, misrepresentation in the

certificate of candidacy, was actually a violation of Section 74” and must be

prosecuted as an election offense under Section 262. The COMELEC dismissed the

petition and referred the case to its Law Department for prosecution.

We held that the dismissal was improper. There we reasoned that the issue

of residence having been squarely raised before the COMELEC —

x x x it should not have been shunted aside to the Law Department for a

roundabout investigation of [Larrazabal’s] qualification through the filing of a criminal

prosecution, if found to be warranted, with resultant disqualification of the accused in







case of conviction. The COMELEC should have opted for a more direct and speedy

process available under the law, considering the vital public interest involved and the

necessity of resolving the question at the earliest possible time for the benefit of the

inhabitants of Leyte.[9]

By “direct and speedy process,” the Court referred to Section 78 of B.P. 881,

which states:

Section 78. Petition to deny due course to or cancel a certificate of

candidacy. — A verified petition seeking to deny due course or to cancel a

certificate of candidacy may be filed by the person exclusively on the groundthat any material representation contained therein as required under Section74 hereof is false. The petition may be filed at any time not later than twenty-fivedays from the time of the filing of the certificate of candidacy and shall bedecided, after due notice and hearing, not later than fifteen days before theelection. (Emphasis supplied)

Thus, upon considering the facts and seeing

that Larrazabal’s misrepresentation of her residence put her qualification as acandidate at issue,[10] the Court found that the case fell squarely within the

provisions of Section 78 and directed the COMELEC to determine the residence

qualification of Larrazabal. Notably, the Court did not make a finding

that Abella had no cause of action under Section 262, but only characterized the

criminal case as involving a “roundabout investigation” seeking an end —

Larrazabal’s disqualification — that could be achieved more speedily through an

administrative proceeding under Section 78. The ruling in Abella recognizedthat Larrazabal’s act of misrepresenting her residence, a fact required to be stated

in her certificate of candidacy under Section 74 and which was also a qualification

for all elective local officials, gave rise to two causes of action against her under

B.P. 881: one, a criminal complaint under Section 262; and second, a petition to

deny due course to or cancel a certificate of candidacy under Section 78.











The case of Salcedo six years after Abella tested the limits of Section 78 on

the specific question of what constitutes a material misrepresentation. In Salcedo,

petitioner VictorinoSalcedo prayed for the disqualification of private

respondent Emelita Salcedo (Emelita) from the mayoralty race in Sara, Iloilo on

the basis of the use of her surname. Petitioner alleged thatEmelita’s marriage

to Neptali Salcedo (Neptali) was void and therefore Emelita’s use

of Neptali’s surname constituted a material misrepresentation. The COMELEC

ruled in favor of Emelita, finding that she committed no misrepresentation. On

appeal by petitioner, the Court held:

In case there is a material misrepresentation in the certificate of candidacy,

the Comelec is authorized to deny due course to or cancel such certificate upon the

filing of a petition by any person pursuant to Section 78 x x x.

x x x x

As stated in the law, in order to justify the cancellation of the certificate of

candidacy under Section 78, it is essential that the false representation mentioned

therein pertain[s] to a material matter for the sanction imposed by this provision

would affect the substantive rights of a candidate—

the right to run for the electivepost for which he filed the certificate of candidacy. Although the law does not specify

what would be considered as a “material representation,” the Court has interpreted this

phrase in a line of decisions applying Section 78 of [B.P. 881].

x x x x

Therefore, it may be concluded that the material misrepresentationcontemplated by Section 78 of the Code refer[s] to qualifications for elective office.

This conclusion is strengthened by the fact that the consequences imposed upon a

candidate guilty of having made a false representation in [the] certificate of candidacy

are grave — to prevent the candidate from running or, if elected, from serving, or to

prosecute him for violation of the election laws. It could not have been the intention of



the law to deprive a person of such a basic and substantive political right to be voted for

a public office upon just any innocuous mistake.

x x x x

Aside from the requirement of materiality, a false representation under Section

78 must consist of a “deliberate attempt to mislead, misinform, or hide a fact which

would otherwise render a candidate ineligible.” In other words, it must be made with an

intention to deceive the electorate as to one’s qualifications for public office.

x x x[11] (Emphasis supplied)

From these two cases several conclusions follow. First, a misrepresentation

in a certificate of candidacy is material when it refers to a qualification for elective

office and affects the candidate’s eligibility. Second, when a candidate commits a

material misrepresentation, he or she may be proceeded against through a

petition to deny due course to or cancel a certificate of candidacy under Section

78, or through criminal prosecution under Section 262 for violation of Section 74.

Third, a misrepresentation of a non-material fact, or a non-material

misrepresentation, is not a ground to deny due course to or cancel a certificate ofcandidacy under Section 78. In other words, for a candidate’s certificate of

candidacy to be denied due course or canceled by the COMELEC, the fact

misrepresented must pertain to a qualification for the office sought by the

candidate.

Profession or occupation is not a qualification

for elective office, and therefore not a material

fact in a certificate of candidacy.







No elective office, not even the office of the President of the Republic of

the Philippines, requires a certain profession or occupation as a qualification. For

local elective offices including that of punong barangay, Republic Act No. 7160

(R.A. 7160) or the Local Government Code of 1991 prescribes only qualifications

pertaining to citizenship, registration as a voter, residence, and language. Section

39 of R.A. 7160 states:

Section 39. Qualifications. –

(a) An elective local official must be a citizen of the Philippines; a registered voter

in the barangay, municipality, city, or province or, in the case of a member of

the sangguniang panlalawigan, sangguniangpanlungsod, or sangguniang bayan, the

district where he intends to be elected; a resident therein for at least one (1) year

immediately preceding the day of the election; and able to read and write Filipino or any

other local language or dialect.

x x x x

Profession or occupation not being a qualification for elective office,

misrepresentation of such does not constitute a material misrepresentation.

Certainly, in a situation where a candidate misrepresents his or her profession or

occupation in the certificate of candidacy, the candidate may not be disqualified

from running for office under Section 78 as his or her certificate of candidacy

cannot be denied due course or canceled on such ground.

In interpreting a law, the Court must avoid



an unreasonable or unjust construction.

Were we to follow petitioners’ line of thought, for misrepresentation of a

non-material fact, private respondent could be prosecuted for an election offense

and, if found guilty,penalized with imprisonment and other accessory penalties.

B.P. 881 prescribes a uniform penalty for all election offenses under it to cover

those defined in Sections 262 and 261, to wit:

Section 264. Penalties. –— Any person found guilty of any election offense under

this Code shall be punished with imprisonment of not less than one year but not more

than six years and shall not be subject to probation. In addition, the guilty party shall be

sentenced to suffer disqualification to hold public office and deprivation of the right of

suffrage. If he is a foreigner, he shall be sentenced to deportation which shall be

enforced after the prison term has been served. Any political party found guilty shall be

sentenced to pay a fine of not less than ten thousand pesos, which shall be imposed

upon such party after criminal action has been instituted in which their corresponding

officials have been found guilty.

The position taken by petitioners merely highlights for us the absurdity of

not applying here the reasons given by the Court in Salcedo, a mere

disqualification case. In the present case, private respondent not only could be

disqualified from holding public office and from voting but could also be deprived

of his liberty were the COMELEC to pursue a criminal case against him. If

in Salcedo the Court could not conceive the law to have intended that a person be

deprived “of such a basic and substantive political right to be voted for a publicoffice upon just any innocuous mistake” on the certificate of candidacy, weightier

considerations here demand that materiality of the misrepresentation also be

held an essential element of any violation of Section 74. Otherwise, every detail

or piece of information within the four corners of the certificate of candidacy,



even that which has no actual bearing upon the candidate’s eligibility, could be

used as basis for the candidate’s criminal prosecution.

Further compelling us to dismiss this petition is the consideration that anycomplaint against private respondent for perjury under the Revised Penal Code

would necessarily have to allege the element of materiality. The pertinent section

of the Revised Penal Code states:

Art. 183. False testimony in other cases and perjury in solemn affirmation.— The

penalty of arresto mayor in its maximum period to prision correccional in its minimum

period shall be imposed upon any person who, knowingly making untruthful

statements and not being included in the provision of the next preceding articles, shall

testify under oath, or make an affidavit, upon any material matter before a competent

person authorized to administer an oath in cases in which the law so requires. (Emphasis

supplied)

The basis of the crime of perjury is the willful assertion of a falsehood under

oath upon a material matter. Although the term “material matter” under Article183 takes on a fairly general meaning, that is, it refers to the main fact which is

the subject of inquiry,[12] in terms of being an element in the execution of a

statement under oath it must be understood as referring to a fact which has an

effect on the outcome of the proceeding for which the statement is being

executed.[13] Thus, in the case of a certificate of candidacy, a material matter is a

fact relevant to the validity of the certificate and which could serve as basis to

grant or deny due course to the certificate in case it is assailed under Section 78.

Of course, such material matter would then refer only to the qualifications for

elective office required to be stated in the certificate of candidacy.

Perjury under Article 183 of the Revised Penal Code carries the penalty

of arresto mayor in its maximum period to prision correccional in its minimum

period and translates to imprisonment for four months and one day up to two











years and four months. The duration of this imprisonment is a far cry from that

meted by Section 264 of B.P. 881, which is a minimum of one year up to a

maximum of six years. With the gravity of the punishment provided by B.P. 881

for violation of election offenses, we glean the intention of the law to limit

culpability under Section 262 for violation of Section 74 only to a materialmisrepresentation. We thus adhere to the more reasonable construction of the

term “pertinent portions” found in Section 262, in particular reference to Section

74, to mean only those portions of Section 74 which prescribe qualification

requirements of a candidate.

WHEREFORE, we DISMISS the petition. We AFFIRM the En Banc Resolutions

of the Commission on Elections dated 1 February 2006 and 25 May 2006.

SO ORDERED.

ERIBERTO S. MASANGKAY, G.R. No. 164443 Petitioner ,

Present:

- versus - CORONA, C.J., Chairperson,

VELASCO, JR., LEONARDO-DE CASTRO, DEL CASTILLO, and PEREZ, JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:

Respondent. June 18, 2010 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N



DEL CASTILLO, J.:

Every criminal conviction must draw its strength from the prosecution‘s

evidence. The evidence must be such that the constitutional presumption of innocence is

overthrown and guilt is established beyond reasonable doubt. The prosecutorial burden isnot met when the circumstances can yield to different inferences. Such equivocation

betrays a lack of moral certainty to support a judgment of conviction.

This Petition for Review[1] assails the March 16, 2004 Decision[2] and the July 9,2004 Resolution[3] of the Court of Appeals (CA) in CA-G.R. CR No. 25775. Thedispositive portion of the assailed Decision reads:

WHEREFORE, the petition is DENIED, and the appealed Decision isAFFIRMED with the MODIFICATION that Eriberto Masangkay is instead meted the

penalty of imprisonment for a term of Six (6) months and One (1) day of prisioncorreccional minimum.

SO ORDERED.[4]

Factual Antecedents

Petitioner Eriberto Masangkay (Eriberto), his common-law wife MagdalenaRicaros (Magdalena), Cesar Masangkay (Cesar) and his wife Elizabeth Masangkay(Elizabeth), and Eric Dullano were the incorporators and directors of Megatel Factors,Inc. (MFI) which was incorporated in June 1990.[5]

On December 29, 1993 Eriberto filed with the Securities and ExchangeCommission (SEC) a Petition for the Involuntary Dissolution[6] of MFI for violation ofSection 6 of Presidential Decree (PD) No. 902-A. The named respondents were MFI,Cesar and Elizabeth.[7] The said petition was made under oath before a notary public, andalleged among others:

3. At or around September 1, 1993, respondent Elizabeth A. Masangkay prepared or caused to be prepared a Secretary‘s Certificate which states:

That at a special meeting of the Board of Directors of the saidcorporation held at its principal office on December 5, 1992, thefollowing resolution by unanimous votes of the directors present at saidmeeting and constituting a quorum was approved and adopted:




























RESOLVED, as it is hereby resolved that Lot No. 2069-A-2

situated at Bo. Canlalay, Biñan, Laguna containing an area of 3,014square meters covered by Transfer Certificate of Title No. T-210746 beexchanged with 3,700 shares of stock of the corporation worth or valued

at P370,000.00 by way of a ―Deed of Exchange with Cancellation ofUsufruct‖.

x x x x4. Said secretary‘s cer tificate is absolutely fictitious and simulated because the

alleged meeting of the Board of Directors held on December 5, 1992 did not actually

materialize.

x x x x

5. Using the said falsified and spurious document, x x x respondents executed

another fictitious document known as the ―Deed of Exchange with Cancellation ofUsufruct‖.

The contract purporting to be a transfer of 3,700 shares of stock of MFI in returnfor a piece of a land (Lot No. 2064-A-2) located at Canlalay, Biñan, Laguna and owned by minor child Gilberto Ricaros Masangkay is void.

Article 1409 of the New Civil Code states:

―Art. 1409. The following contracts are inexistent and void from the beginning.

x x x x

(2) Those which are absolutely simulated or fictitious;

(3) Those whose cause or object did not exist at the time of thetransaction;

x x x x

These contracts cannot be ratified. Neither can the right to set up thedefense of illegality be waived.‖

The aforementioned contract is indeed simulated and fictitious because theydefrauded minor child Gilberto Ricaros Masangkay and deprived him of his own property without any consideration at all.

Records of the MFI revealed that minor child Gilberto Ricaros Masangkay [or]his alleged guardian Magdalena S. Ricaros never became a stockholder at any point intime of MFI.



x x x x[8]

The case remains pending to date.[9]

Claiming that Eriberto lied under oath when he said that there was no meeting ofthe Board held on December 5, 1992 and that the Deed of Exchange with Cancellation ofUsufruct is a fictitious instrument, the respondent in the SEC case, Cesar, filed acomplaint for perjur y[10] against Eriberto before the Office of the Provincial Prosecutor ofRizal.

Eriberto raised the defense of primary jurisdiction. He argued that what isinvolved is primarily an intra-corporate controversy; hence, jurisdiction lies with the SEC

pursuant to Section 6 of PD 902-A, as amended by PD No. 1758. He also insisted that

there was a prejudicial question because the truth of the allegations contained in his petition for involuntary dissolution has yet to be determined by the SEC. These defenseswere sustained by the assistant provincial prosecutor and the complaint for perjury wasdismissed for lack of merit.[11]

It was however reinstated upon petition for review[12] before the Department ofJustice.[13] Chief State Prosecutor Zenon L. De Guia held that the petition for involuntarydissolution is an administrative case only and thus cannot possibly constitute a prejudicialquestion to the criminal case. He also rejected the claim that the SEC has exclusiveauthority over the case. The Chief State Prosecutor explained that the prosecution andenforcement department of the SEC has jurisdiction only over criminal and civil casesinvolving a violation of a law, rule, or regulation that is administered and enforced by theSEC. Perjury, penalized under Article 183 of the Revised Penal Code (RPC), is notwithin the SEC‘s authority.[14] Thus, he ordered the conduct of a preliminaryinvestigation, which eventually resulted in the filing of the following information:

That sometime in the month of December 1992,[15] in the City of Mandaluyong,

Philippines, a place within the jurisdiction of this Honorable Court, the above-namedaccused, did then and there, willfully, unlawfully and feloniously commit acts of perjuryin his Petition for Involuntary Dissolution of Megatel Factors, Inc. based on violation ofSection 6 of Presidential Decree 902-A against Megatel Factors, Inc., Cesar Masangkay,Jr. and Elizabeth Masangkay which he made under oath before a notary authorized toreceive and administer oath and filed with the Securities and Exchange Commission,wherein he made willful and deliberate assertion of a falsehood on a material matterwhen he declared the following, to wit: a) the secretary certificate dated September 1,


































1993, proposed by Elizabeth Masangkay is fictitious and simulated because the allegedDecember 5, 1992, meeting never took place; and, b) the Deed of Exchange withCancellation of Usufruct is a fictitious document , whereby the respondents defrauded theminor child Gilberto Ricaros Masangkay, by exchanging the child‘s 3,014 square meters

lot with 3, 700 shares of stock of the corporation, when in fact no consideration for the

transfer was made as Gilberto Ricaros Masangkay or his guardian Magdalena Ricaroshas never been a stockholder of the Corporation at any point in time, when in truth and infact the accused well knew that the same statements he made in his petition and which hereaffirmed and made use as part of his evidence in the Securities and ExchangeCommission (SEC) are false.[16]

The information was docketed as Criminal Case No. 56495 and raffled to theMetropolitan Trial Court (MeTC) of Mandaluyong City, Branch 59.

Eriberto filed a motion to quash,[17] insisting that it is the SEC which has primary jurisdiction over the case. He also argued that the truth of the allegations contained in theinformation is still pending resolution in SEC Case No. 12-93-4650, thereby constitutinga prejudicial question to the perjury case.

The MeTC denied the motion to quash for lack of merit.[18] It held that the factthat the parties to the criminal case are mostly stockholders of the same corporation doesnot automatically make the case an intra-corporate dispute that is within the SEC

jurisdiction. It likewise held that the fact that the parties are stockholders is merelyincidental and that the subject of the case is a criminal act and hence within the general

jurisdiction of the MeTC. As regards the issue of prejudicial question, the MeTC ruledthat the petition before the SEC has nothing to do with the criminal case. The truth of thestatements for which he is being indicted is a matter of defense which the defendant mayraise in the criminal case.

Eriberto filed a petition for certiorari before Branch 158 of the Pasig CityRegional Trial Court (RTC) to assail the denial of his motion to quash. The denial was

affirmed.[19] He then filed a petition for certiorari before the CA, which was denied for being a wrong mode of appeal.[20]

Failing to suspend the criminal proceedings, Eriberto entered a plea of not guiltyduring arraignment.[21] He then waived the conduct of a pre-trial conference.[22]































During trial, the prosecution presented the private complainant Cesar as its solewitness.[23] He testified that on December 5, 1992, a meeting of the Board of Directorswas held at9:00 o‘clock in the morning at the office of MFI in Canlalay, Biñan,Laguna. He presented the minutes of the alleged meeting and reiterated the details

contained therein indicating that the Board unanimously approved Magdalena‘s proposalto exchange her son‘s (Gilberto Masangkay [Gilberto]) property with MFI shares of

stock .[24] The prosecution established that one of the signatures appearing in the minutes belongs to Eriberto.[25] This allegedly belies Eriberto‘s statement that the December 5,1992 meeting ―did not actually materialize,‖ and shows that he knew his statement to be

false because he had attended the meeting and signed the minutes thereof. The prosecution also pointed out that in the proceedings before the guardianship court toobtain approval for the exchange of properties, Eriberto had testified in support of the

exchange.

[26]

The guardianship court subsequently approved the proposedtransaction.[27] The resulting Deed of Exchange contained Eriber to‘s signature as first

party.[28]

As for Eriberto‘s statement that the Deed of Exchange was simulated, the

prosecution disputed this by again using the minutes of the December 5, 1992 meeting,which states that the property of Gilberto will be exchanged for 3,700 MFI shares.

For his defense, Eriberto asserted that the December 5, 1992 meeting did not

actually take place. While he admitted signing, reading and understanding the minutes ofthe alleged meeting, he explained that the minutes were only brought by Cesar andElizabeth to his house for signing, but there was no actual meeting.[29]

To support the claim that no meeting took place in 1992, the defense presentedElizabeth, the MFI corporate secretary, who could not remember with certainty if she hadsent out any notice for the December 5, 1992 meeting and could not produce any copythereof.

The defense also presented a notice of meeting dated October 19, 1993, whichcalled for the MFI board‘s initial meeting ―since its business operations started,‖ to be

held on November 9, 1993. Emphasizing the words ―initial meeting,‖ Eriberto argued

that this proves that prior to November 9, 1993, no meeting (including the December 5,1992 meeting) had ever taken place.































As for the charge that he perjured himself when he stated that the Deed ofExchange was fictitious and simulated for lack of consideration, Eriberto explained thatMFI never issued stock certificates in favor of his son Gilberto. Corporate secretaryElizabeth corroborated this statement and admitted that stock certificates were never

issued to Gilberto or any of the stockholders.[30]

While he admitted supporting the proposed exchange and seeking its approval bythe guardianship court, Eriberto maintained that he did so because he was convinced by

private complainant Cesar that the exchange would benefit his son Gilberto. He howeverreiterated that, to date, Gilberto is not a stockholder of MFI, thus has not received anyconsideration for the exchange.

On r ebuttal, the prosecution refuted Eriberto‘s claim that the board had its firstactual meeting only on November 9, 1993. It explained that the November 9,1993 meeting was the initial meeting ―since business operations began‖, because MFI

obtained permit to conduct business only in 1993. But the November 9, 1993 meetingwas not the first meeting ever held by the board of directors. The prosecution presentedthe secretary‘s certificates of board meetings held on April 6, 1992[31] and September 5,1992[32] -- both before November 9, 1993 and both signed by Eriberto.[33] At this time, business operations have not yet begun because the company‘s hotel building was still

under construction. The said secretary‘s certificates in fact show that MFI was still

sourcing additional funds for the construction of its hotel.[34]

Ruling of the Metropolitan Trial Court

On October 18, 2000, the MeTC rendered a judgment[35] holding that the prosecution was able to prove that the December 5, 1992 meeting actually took place andthat petitioner attended the same as evidenced by his signature in the minutes thereof. Asfor Eriberto‘s statement that the Deed of Exchange was ―fictitious,‖ the MeTC held that

his participation in the approval and execution of the document, as well as his avowals before the guardianship court regarding the proposed exchange all militate against his previous statement. Petitioner was thus found guilty as charged and sentenced toimprisonment of two months of arresto mayor minimum and medium, as minimum, toone year and one day of arresto mayor maximum and prison correccional minimum, asmaximum.[36]






























Ruling of the Regional Trial Court

Eriberto appealed[37] his conviction to the RTC of Mandaluyong City, Branch 213,which eventually affirmed the appealed judgment.[38] The fallo of the Decision states

that:

WHEREFORE, the decision of October 18, 2000 by Metropolitan Trial Court,Branch 59, Mandaluyong City, convicting the accused-appellant Eriberto S. Masangkay of the crime of perjury under Article 183 of the Revised Penal Code ishereby affirmed in toto.

SO ORDERED.[39]

Ruling of the Court of Appeals

The CA affirmed the appealed ruling of the trial courts, holding that the prosecution was able to prove that the falsehoods in the petition for involuntarydissolution were deliberately made. It explained that Eriberto‘s signatures on the two

allegedly fictitious documents show that he participated in the execution of the Deed ofExchange and was present in the December 5, 1992 meeting. Having participated inthese two matters, Eriberto knew that these were not simulated and fictitious, as he

claimed in his verified petition for involuntary dissolution of MFI. Thus, he deliberatelylied in his petition.[40]

The CA rejected petitioner‘s argument that the two statements were not

material. It ruled that they were material because petitioner even cited them as principal basis for his petition for involuntary dissolution.[41]

The appellate court found no merit in the issue of prejudicial question. It held thatthe result of the petition for involuntary dissolution will not be determinative of the

criminal case, which can be resolved independently.[42]

The CA however, corrected the imposed penalty on the ground that the trial courtwas imprecise in its application of the Indeterminate Sentence Law. The CA meted the

penalty of imprisonment for a term of six months and one day of prision

correccional minimum.[43]






























Petitioner moved for reconsideration[44] which was denied.[45]

Hence, this petition.[46]

Issues

Petitioner submits the following issues for review: I

WHETHER THERE WAS DELIBERATE ASSERTION OF FALSEHOOD

IIWHETHER THE TRUTHFUL ALLEGATION IN THE PETITION FOR

INVOLUNTARY DISSOLUTION THAT THERE WAS NO MEETING IS

MATERIAL TO THE PETITION

IIIWHETHER PERJURY COULD PROSPER WHILE THE MAIN CASE REMAINS

PENDING[47]

Since this is a case involving a conviction in a criminal case, the issues boil downto whether the prosecution was able to prove the accused‘s guilt beyond reasonable

doubt.

Our Ruling

We rule that the prosecution failed to prove the crime of perjury beyondreasonable doubt.

Article 183 of the RPC provides:

False testimony in other cases and perjury in solemn affirmation. – The penalty

of arresto mayor in its maximum period to prision correccional in its minimum periodshall be imposed upon any person who, knowingly making untruthful statements and not being included in the provisions of the next preceding articles shall testify under oath, ormake an affidavit, upon any material matter before a competent person authorized toadminister an oath in cases in which the law so requires.

















Any person who, in case of a solemn affirmation made in lieu of an oath, shallcommit any of the falsehoods mentioned in this and the three preceding articles of thissection, shall suffer the respective penalties provided therein.

For perjury to exist, (1) there must be a sworn statement that is required bylaw; (2) it must be made under oath before a competent officer; (3) the statement containsa deliberate assertion of falsehood ; and (4) the false declaration is with regard to a

material matter .[48]

The presence of the first two elements is not disputed by the petitioner and theyare indeed present in the instant case. The sworn statements which contained the allegedfalsehoods in this case were submitted in support of the petition for involuntary

dissolution, as required by Sections 105 and 121 of the Corporation Code.

The petition was also verified by the petitioner before a notary public[49] — anofficer duly authorized by law to administer oaths. This verification was done incompliance with Section 121 of the Corporation Code.[50]

It is the elements of deliberate falsehood and materiality of the false statements tothe petition for involuntary dissolution which are contested.

On the element of materiality, a material matter is the main fact which is thesubject of the inquiry or any fact or circumstance which tends to prove that fact, or anyfact or circumstance which tends to corroborate or strengthen the testimony relative to thesubject of inquiry, or which legitimately affects the credit of any witness who testifies.[51]

Petitioner filed a petition for involuntary dissolution of MFI based on Section 105of the Corporate Code, which states:

Section 105. Withdrawal of stockholder or dissolution of corporation. – Inaddition and without prejudice to the other rights and remedies available to a stockholderunder this Title, any stockholder of a close corporation may, for any reason, compel thesaid corporation to purchase his shares at their fair value, which shall not be less thantheir par or issued value, when the corporation has sufficient assets in his books to coverits debts and liabilities exclusive of capital stock: Provided, That any stockholder of aclose corporation may, by written petition to the Securities and Exchange Commission,compel the dissolution of such corporation whenever any of the acts of the directors,officers or those in control of the corporation is illegal, or fraudulent, or dishonest, or


















oppressive or unfairly prejudicial to the corporation or any stockholder, or whenevercorporate assets are being misapplied or wasted.

He stated in his petition for involuntary dissolution that:

x x x x

4. Said secretary‘s certificate is absolutely fictitious and simulated, becausethe alleged meeting of the Board of Directors held on December 5, 1992 did not actuallymaterialize.

x x x x

5. Using the said falsified and spurious document, x x x respondentsexecuted another fictitious document known as the Deed of Exchange with Cancellationof Usufruct.

x x x x


x x x x

8. The foregoing acts and deeds of the respondents, done in evident badfaith and in conspiracy with one another, are seriously fraudulent and illegal becausethey constitute estafa through falsification of documents, punishable under Articles 315and 171 of the Revised Penal Code.

9. Likewise, said acts and deeds are feloniously prejudicial to thestockholders of MFI, including petitioner, as corporate assets are being misapplied andwasted.

10. MFI should therefore be ordered dissolved after appropriate proceedings before this Honorable Commission, in accordance with Sections 105 and 121 of the New

Corporation Code x x x.[52]

The statements for which the petitioner is tried for perjury are the very grounds he reliedupon in his petition for corporate dissolution. They refer to acts of the MFI directorswhich are allegedly fraudulent, illegal and prejudicial, and which would allegedly justify







corporate dissolution under Section 105 of the Corporation Code. Evidently, thesestatements are material to his petition for involuntary dissolution. The element ofmateriality is therefore present.

The prosecution, however, failed to prove the element of deliberate falsehood.

The prosecution has the burden of proving beyond reasonable doubt the falsehoodof petitioner‘s statement that the December 5, 1992 meeting ―did not actually

materialize.‖ In other words, the prosecution has to establish that the said meeting in facttook place, i.e., that the directors were actually and physically present in one place at thesame time and conferred with each other.

To discharge this burden, the prosecution relied mainly on the minutes of thealleged December 5, 1992 meeting, signed by the accused, which are inconsistent withhis statement that the December 5, 1992 meeting did not actually materialize. Accordingto the minutes, a meeting actually took place. On the other hand, according to the petitioner‘s statement in the petition for dissolution, the meeting did not actuallymaterialize or take place. The two statements are obviously contradictory or inconsistentwith each other. But the mere contradiction or inconsistency between the two statementsmerely means that one of them is false. It cannot tell us which of the two statements isactually false. The minutes could be true and the sworn statement false. But it is equally

possible that the minutes are false and the sworn statement is true, as explained by the petitioner who testified that the minutes were simply brought to his house for signature, but no meeting actually transpired. Given the alternative possibilities, it is the prosecution‘s burden to affirmatively prove beyond reasonable doubt that the firststatement (the minutes) is the true one, while the other statement (in the petition fordissolution) is the false one.

We have held before that a conviction for perjury cannot be obtained by the

prosecution by merely showing the inconsistent or contradictory statements of theaccused, even if both statements are sworn. The prosecution must additionally provewhich of the two statements is false and must show the statement to be false byevidence other than the contradictory statement.[53] The rationale for requiring evidenceother than a contradictory statement is explained thus:







x x x Proof that accused has given contradictory testimony under oath at adifferent time will not be sufficient to establish the falsity of his testimony charged as perjury, for this would leave simply one oath of the defendant as against another, and itwould not appear that the testimony charged was false rather than the testimonycontradictory thereof. The two statements will simply neutralize each other; there must

be some corroboration of the contradictory testimony. Such corroboration, however,may be furnished by evidence aliunde tending to show perjury independently of thedeclarations of testimony of the accused.[54]

In this case, however, the prosecution was unable to prove, by convincingevidence other than the minutes, that the December 5, 1992 meeting actually took

place. It merely presented, aside from the minutes, the testimony of private complainantCesar, who is a respondent in the corporate dissolution case filed by the petitioner and istherefore not a neutral or disinterested witness.[55] The prosecution did not present thetestimony of the other directors or participants in the alleged meeting who could havetestified that the meeting actually occurred. Neither did the prosecution offer anyexplanation why such testimony was not presented. It likewise failed to present anyevidence that might circumstantially prove that on December 5, 1992, the directors were

physically gathered at a single place, and there conferred with each other and came upwith certain resolutions. Notably, the prosecution failed to present the notice for thealleged meeting. The corporate secretary, Elizabeth, who was presented by the petitioner,could not even remember whether she had sent out a prior notice to the directors for the

alleged December 5, 1992 meeting. The lack of certainty as to the sending of a noticeraises serious doubt as to whether a meeting actually took place, for how could thedirectors have been gathered for a meeting if they had not been clearly notified that sucha meeting would be taking place?

The insufficiency of the prosecution‘s evidence is particularly glaring considering

that the petitioner had already explained the presence of his signature in the minutes ofthe meeting. He testified that while the meeting did not actually take place, the minuteswere brought to his house for his signature. He affixed his signature thereto because he

believed that the proposed exchange of the assets, which was the subject of the minutes,would be beneficial to his child, Gilberto. Acting on this belief, he also supported theapproval of the exchange by the guardianship court.

Under these circumstances, we cannot say with moral certainty that the prosecution was able to prove beyond reasonable doubt that the December 5,











1992 meeting actually took place and that the petitioner‘s statement denying the same

was a deliberate falsehood.

The second statement in the petition for involuntary dissolution claimed to be

perjurious reads:

5. Using the said falsified and spurious document, respondents executedanother fictitious document known as the Deed of Exchange with Cancellation ofUsufruct.

The contract purporting to be a transfer of 3,700 shares of stock of MFI in returnfor a piece of land (Lot No. 2064-A-2) located at Canlalay, Biñan, Laguna and owned byminor child Gilberto Masangkay is void.

Article 1409 of the New Civil Code states:

Article 1409. The following contracts are inexistent and void from the beginning:

x x x x

(2) those which are absolutely simulated or fictitious;

(3) those whose cause or object did not exist at the time of thetransaction;

x x x x

These contracts cannot be ratified. Neither can the right to set up thedefense of illegality be waived.


Records of the MFI revealed that minor child Gilberto Ricaros Masangkay [or]his alleged guardian Magdalena S. Ricaros never became a stockholder at any point intime of MFI.

In short, the petitioner is being charged with deliberate falsehood for his statementthat the deed of exchange is fictitious. To support the accusation, the prosecution provedthat petitioner assented to the said Deed of Exchange by virtue of his signatures in theminutes of the alleged December 5, 1992 meeting and on the instrument itself, and his



participation in procuring the guardianship court‘s approval of the transaction. Theseallegedly show that the exchange was not fictitious and that Eriberto knew it.

We cannot agree with this line of reasoning. Petitioner‘s imputation of

fictitiousness to the Deed of Exchange should not be taken out of context. He explainedin paragraph 5 of his petition for involuntary dissolution that the Deed of Exchange issimulated and fictitious pursuant to Article 1409 of the Civil Code, because it deprived

Gilberto Masangkay of his property without any consideration at all. To justify hisallegation that Gilberto did not receive anything for the exchange, he stated in the same

paragraph that Gilberto never became a stockholder of MFI (MFI stocks were supposedto be the consideration for Gilberto‘s land). This fact was subsequently proven by the

petitioner through the corporate secretary Elizabeth, who admitted that MFI never issued

stocks in favor of the stockholders. This testimony was never explained or rebutted bythe prosecution. Thus, petitioner‘s statement that the exchange was ―simulated and

fictitious x x x because they x x x deprived [Gilberto] of his own property without anyconsideration at all‖ cannot be considered a deliberate falsehood. It is simply hischaracterization of the transaction, based on the fact that Gilberto did not receiveconsideration for the exchange of his land.

As importantly, petitioner‘s statements in paragraph 5 of the petition for

involuntary dissolution about the nature of the Deed of Exchange are conclusions of law,

and not factual statements which are susceptible of truth or falsity. They are his opinionregarding the legal character of the Deed of Exchange. He opined that the Deed ofExchange was fictitious or simulated under Article 1409 of the Civil Code, because MFIsupposedly did not perform its reciprocal obligation to issue stocks to Gilberto inexchange for his land. His opinion or legal conclusion may have been wrong (as failureof consideration does not make a contract simulated or fictitious),[56] but it is an opinionor legal conclusion nevertheless. An opinion or a judgment cannot be taken as anintentional false statement of facts.[57]

We recognize that perjury strikes at the very administration of the laws; that it isthe policy of the law that judicial proceedings and judgments shall be fair and free fromfraud; that litigants and parties be encouraged to tell the truth, and that they be punished ifthey do not.[58] However, it is also at the heart of every criminal proceeding that every

person is presumed innocent until proven guilty beyond reasonable doubt.















Given the foregoing findings, there is no more need to discuss the issue involvingthe propriety of proceeding with the perjury case while the civil case for corporatedissolution is pending.

WHEREFORE, the petition is GRANTED. The assailed March 16,2004 Decision of the Court of Appeals in CA-G.R. GR No. 25775 and its July 9,2004 Resolution, areREVERSED and SET ASIDE. Petitioner Eriberto S. Masangkayis ACQUITTED of the charge of perjury on the ground of REASONABLE DOUBT.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT Manila

SECOND DIVISION

G.R. No. 160257 January 31, 2006

ROBERT LASTRILLA, Petitioner,vs.RAFAEL A. GRANDA, Respondent.

D E C I S I O N

PUNO, J .:

Petitioner Robert Lastrilla seeks the partial reversal of the July 18, 2003 Decision of the Court of Appeals (CA) in CA-G.R. No. 26273 which modified the May 8, 2002 Resolution of the Departmentof Justice (DOJ), finding probable cause to file three (3) informations charging him with the crime ofFalsification of Public Document under Article 172 (1), in relation to Article 171 (1), (2) and (5) of theRevised Penal Code.

The facts are as follows:

Respondent Rafael Granda is a grandson and legal heir of the deceased spouses Rafael and Aurora

Granda, who died in June 1989 and September 16, 2000, respectively. The Granda spouses had tenchildren, namely: Blanquita Serafica, Jesse[1] Granda, Aurora Sumcad, Violeta Cuenca, Rafael R.Granda, Olivia Walker, Lourdes Manabat, Fernando Granda, Benjamin Granda and Silvina Granda.Respondent's father, Jesse Granda, predeceased the spouses.

During Aurora's lifetime, she owned several parcels of land with some improvements thereon inTacloban City, covered by Transfer Certificate of Title (TCT) Nos. T-249, T-1312, T-816 and T-9874,all registered in her name.[2] Said parcels of land were allegedly sold by the Granda spouses, asevidenced by the following deeds of absolute sale, all dated December 7, 1985, witnessed by



properties subject of the assailed deeds and to collect and receive all rentals from the occupants ofthe buildings therein; (d) As attorney-in-fact, Silvina executed lease contracts dated February 4,2000[11] with some of the lessees of the office spaces in the commercial building located in the twolots covered by TCT Nos. T-1312 and T-249; (e) As per Certification from the Clerk of Court of theRegional Trial Court of the 8th Judicial Region, the three deeds of absolute sale were not among theavailable notarized documents submitted to said office for the year 1985; and (f) the subject deeds

were registered with the Register of Deeds only on February 28, 2000 or almost fifteen (15) yearsafter the alleged sales. Respondent claimed that petitioner conspired with Silvina and Atty.Camenforte in falsifying the three deeds by signing as an instrumental witness therein. Also,petitioner and the other vendees allegedly conspired by benefiting from the use of said publicdocuments in transferring the titles of the properties from the name of Aurora to their names.

Petitioner's co-respondent sibling Elsa Uy submitted her counter-affidavit,[12] averring that sometimein 1998, Aurora repeatedly offered the sale of the subject properties to her. After conferring with hersiblings, she agreed to buy Aurora's properties for a total consideration of P18,000,000 subject to theconditions: (1) That the preparation, documentation, notarization and registration of the document ofsale, the cancellation of the TCTs in Aurora's name and the issuance of the new TCTs in the namesof the vendees would be Aurora's sole and exclusive responsibility; (2) That all the expenses fordocumentation, registration of documents, capital gains tax, documentary stamps tax, transfer tax,sales tax, fees for the cancellation and issuance of titles and expenses for similar purposes would befor the exclusive and sole account of Aurora; (3) That as soon as the TCTs in the names of thevendees are issued, Aurora would turn over the new TCTs to them; (4) That all the necessarydocuments would be executed by Aurora and/or by any and all persons who may have any interest,lien or claim over the properties at the instance of Aurora and at her expense, in order that the saidproperties would be free from any lien or encumbrance; and (5) That the mode and manner ofpayment for the consideration of the sale would be as directed by Aurora.

Aurora allegedly agreed to the said terms and conditions subject to an increase in the totalconsideration from P18,000,000 to P18,800,000. As directed by Aurora, periodic payments weremade to her totaling P8,800,000. Partial advance payments of P1,000,000 each were likewise madeto Aurora's children Silvina and Lourdes. Thereafter, Elsa and her siblings, Mary Uy Cua, Necita Uy,

Rosa Uy, Tinong Uy and Andres Uy, gave Aurora's children P1,000,000 each or a total ofP8,000,000. The share of Aurora's deceased son Jesse Granda was divided equally among thelatter's seven (7) children, one of whom is respondent, who received his share of P142,857.14.Subsequently, all the heirs of Aurora executed separate documents denominated as "Deed of

Assignment."[13] The Deed of Assignment dated April 20, 2000, signed by respondent under thename "Rafaelito" on "2/16/2000," together with the latter's siblings, states that:

For and in consideration of the sum of ONE MILLION PESOS (P1,000,000.00), Philippine Currency,receipt of the amount from MARY UY CUA, NECITA UY, ELSA UY, ANDRES UY, TINONG UY andROSA UY, is hereby acknowledged and confessed by us to our entire and full satisfaction x x x and

We do hereby confirm and acknowledge the fact that our grandmother, Aurora Ratcliffe de Granda,has the lawful right to dispose of the above described parcels of land and such other real propertiesshe has wherever located, as she is the absolute and exclusive owner being her exclusive andparaphernal properties.[14] (citation omitted)

Elsa contended that she and her siblings were innocent purchasers in good faith and for valuableconsideration. It was sometime in September 2000 when TCT Nos. T-6696 and T-54401 werepresented to them, together with the ten (10) separate Deeds of Assignment executed by Aurora'sheirs. Her siblings, namely Mary Uy Cua, Necita Uy, Andres Uy, Tinong Uy and Rosa Uy, never metor personally conferred with Aurora or her heirs. Nor were they in possession or control of the three



(3) subject deeds and the owner's duplicates of TCT Nos. T-1312, T-249, T-816 and T-9874 as saiddocuments remained in the absolute control of Aurora. They were never involved in the preparation,execution, notarization and registration of the three (3) deeds of absolute sale and the payment ofthe required fees, taxes, the cancellation of the certificates of title and the issuance in their names ofTCT Nos. T-6696, T-54400 and T-54401 as the same were all made and effected by Aurora. Shedenied having taken advantage of or profited from the subject deeds and certificates of title. She

contended that the filing of the instant complaint is "an act of utter bad faith, done for some evilmotives and with malicious criminal intent"[15] as complainant was the very same person who gavehis conformity and consent to the questioned sales, confirmed the sales and acknowledged receiptof P1,000,000 by executing, together with his siblings, the Deed of Assignment dated April 20, 2000.

Allegedly, it was complainant who unjustly enriched himself at their expense when he received fromthem his share of P142,857.14. That respondent filed the instant case only after his grandmother'sdeath allegedly shows his sinister scheme to preclude his grandmother from divulging the truth. Sheclaimed that complainant was a party to the alleged falsification and perpetrated an act of fraud totheir damage and prejudice.

Alleging the same statement of facts and defenses, petitioner's other siblings, Necita Uy, Rosa Uy,Mary Uy Cua, Tinong Uy and Andres Uy, filed their Joint Counter-Affidavit[16] and petitioner'sspouse, Norma Lastrilla, filed her own counter-affidavit.[17] Atty. Camenforte also submitted hiscounter-affidavit[18] containing his personal defenses. In response, respondent filed his Reply

Affidavit,[19] contending that petitioner and Silvina should be deemed to have admitted theallegations in the complaint for their failure to file their respective counter-affidavits despite duenotice. Petitioner eventually submitted his own counter-affidavit[20] on the same day that his co-respondent siblings and spouse filed their Rebuttal-Affidavits.[21]

In his defense, petitioner adopted the allegations of his co-respondents insofar as they were materialto the charges against him. He contended that the charge against him is "malicious and bereft oftruth, designed mainly to cast a cloud of doubt on the title of the vendees."[22] He claimed that thefiling of the complaint was merely aimed at making him and his siblings submit to additionalmonetary consideration being demanded by respondent

who must have felt shortchanged because he had to share his deceased father's P1,000,000-sharewith his six (6) siblings. Respondent allegedly threatened him with criminal prosecution after he andhis siblings refused to heed his demands. Petitioner claimed that it was only Elsa and Aurora whonegotiated for the sale of the properties in question. His other siblings participated only with respectto their respective contributions to the purchase price and he was the one tasked to ensure that thesignatures on the subject deeds were all authentic and genuine as they were parting with millions ofhard earned money. Upon Aurora's request, he readily agreed to affix his signatures in the subjectdeeds as a witness, thinking that such act would seal the validity of the sale. He contended that thefact that the sale was only registered on February 28, 2000 is not evidence of falsification. In fact, heand his wife were the named vendees in one of the deeds and paid a total of P200,000 for theproperties therein described. However, they did not benefit from the said sale because contrary towhat was stated in the deed of sale, only Lot 4691 was covered by T-6736, Lot 2455 was anunregistered land and has an adverse claimant thereto while Lot 4693 was covered by TCT No. T-9874. In view of the misrepresentation, they never acquired title to the properties they bought and infact suffered pecuniary loss in the amount of P200,000.

Further, petitioner claimed that "although the Application in the Office of the Register of Deeds ofTacloban City, denominated as Control No. 183, requesting registration of title to the properties"subject of the deeds of absolute sale bears his signature, the same "is not evidence that it was not

Aurora Granda who caused the registration of said Deeds of Sale... because the truth of the matteris that the same application was just given to [him] by someone sent by Aurora Granda requestingthat [he] affix [his] signature thereto." It is likewise "not evidence that [he] was the one who



personally submitted the same to the Office of the Register of Deeds."[23] He did not deny that thecorresponding real property tax and special (SEF) tax for the parcels of land were in his name andthat of Washington Trading but he contended that the same does not prove that respondent vendeeswere the ones who paid said taxes, for the truth of the matter is that Aurora, in consonance with heragreement with Elsa Uy, fulfilled her part of the conditions of the sale that she would cause thepreparation, documentation and notarization of the deeds of absolute sale and paid the taxes in his

name and Washington Trading.

On May 5, 2001, the Office of the City Prosecution of Tacloban issued a Resolution, the dispositiveportion of which states:

In view of the foregoing, it appearing that Camilo Camenforte and Silvina Granda conspired witheach other to falsify the three Deeds of Sale, the filing of three (3) informations, one for each Deed ofSale, charging the respondents with the crime of Falsification by Public Officers by forging thesignatures of Aurora and Rafael Granda to make it appear that the said persons have participated inan act or proceedings when they did not in fact participated (sic) penalized and defined in Art. 171,sub-par. 2 of the Revised Penal Code.[24]

In dismissing the complaint against petitioner, his wife and his siblings, the investigating prosecutorreasoned that:

The question to be resolved is, [w]ho falsified these documents? It can not be the respondents, ElsaUy, Tinong Uy, Necita Uy, Andres Uy, Mary Uy Cua, as alleged by the complainant since they havepaid a total amount of P18,800,000.00 to Aurora Granda and her heirs for the purchase of saidproperties.

It must be noted that the complainant himself never denied that they received the amount. In fact, inthe Deed of Assignment that the complainant and his co-heirs executed they admitted havingreceived P1,000,000.00 as their share in the purchase of the said properties. It is highly improbablefor someone to part with such an amount as a consideration for the purchase of a property and atthe same time conspire to forge the very same documents that is the basis of the sale. Why pay

P18.8M and risk losing the said amount on a forged document?

Nor can it be Robert and Normal (sic) Lastrilla for the same reason. In fact, these two respondentsincurred losses since they have already paid the consideration of P200,000.00 without havingacquired the property since the description of the property in the Deed of Sale is erroneous.

The ruling of the Supreme Court in the case of People vs. Sandangdiego, 81 SCRA 120, cited by thecomplainant does not apply to the above-named respondents because it cannot be said that theytook advantage of it and profited thereby since the respondents acquired the said properties forvaluable consideration.[25]

Respondent filed a petition for partial review of the Resolution of the Office of the City Prosecution of

Tacloban with the DOJ, questioning the dismissal of the complaint against petitioner, his spouse andhis siblings. The petition for partial review was dismissed by then Secretary Hernando B. Perez,holding that:

Suffice it to state that apart from the bare allegations of complainant that respondents-appelleesconspired with respondents Silvina Granda and Camilo Camenforte in the falsification of the subjectdeeds, no evidence has been presented to substantiate the charge. From the record, it is unclearhow respondents-appellees participated in the falsification of the subject documents. x x x



While respondent-appellee Robert signed as a witness in all of the three (3) subject documents, thedetermination of probable cause against him will not depend alone on a finding of forgery because acareful scrutiny of the evidence adduced reveals that there are valid and complete defensesavailable in his (Robert) favor that would negate any criminal intent on his part to commit the offenseof falsification.

Firstly. It is significant to note that the complainant did not question the effectiveness andconsummation of the sale transactions in questions (sic) much less did he assail the authority of

Aurora to do so. In fact, complainant himself confirmed the validity of the sale made by Aurora of herproperties by executing the Deed of Assignment dated April 20, 2000 and which deed he signed onFebruary 16, 2000, the day he received his share from the proceeds thereof as one of the children ofthe late Jessie Granda.

Secondly. Neither did complainant allege that the sales transactions were without or for inadequate,fictitious or simulated consideration. It is without dispute that respondent-appellee Robert Lastrilla,together with his brothers and sisters, paid the sum of P18.8 M. By paying such a substantial sum ofP18.8 M, it was unlikely for respondent-appellee Robert to have intentionally and maliciouslyparticipated in the falsification of the subject documents because it would be adverse to his owninterests and that of his siblings. It would be the height of absurdity that respondent-appellee wouldhave consented to having falsified documents evidencing the subject transactions considering thathis primary and paramount concern was to protect his own interests and that of his siblings.

Thirdly. It is worthy to note that complainant was not joined in his complaint by any of the survivingheirs of Aurora Granda. If, indeed, complainant and the other heirs of the estate of Aurora werecheated by respondents-appellees of the properties in question because of the execution of thesubject documents, the least that the other heirs could have done was to join complainant in theinstant complaint. Such failure lends credence to the claim of respondents-appellees that the saletransactions in question were regular and that they bought the subject properties from Aurora ingood faith and for a valuable consideration.

Fourth. No right of complainant was violated by the execution of the subject deeds. The deceased

Aurora had the free disposition of the properties such that whatever means and method adopted by Aurora in causing the transfer of her properties to the respondents-appellees is beyondcomplainant's concern much less did he have any right whatsoever to question the said disposition.Obviously, complainant could not allege that he had sustained damage as a result of the sale simplybecause no right of his could have been violated. On the contrary, complainant admittedly benefitedfrom the sale.

Fifth. We find it rather odd for complainant to have initiated the instant action only after the death ofher (sic) grandmother Aurora. It is noted that as early as October 1999 and February 2000,complainant admits having learned about the sale of Aurora's properties to other persons. In fact, asearlier stated, on February 16, 2000 he signed a document denominated as Deed of Assignmentwherein he not only recognized the validity of the sale by Aurora in favor of the respondents-

appellees of the properties described therein but he also acknowledged receipt of the amount ofP142,857.14 representing his share of the proceeds of the said sale as heir of the deceased JesseGranda. These facts clearly create doubt as to the real motive of the complainant in filing the instantcomplaint.

Indeed, the foregoing circumstances clearly establish respondent-appellee Robert Lastrilla's lack ofcriminal intent in the falsification of the subject document. Par. no. 1 of Article 172 of the RevisedPenal Code in conjunction with Par. no. 1 of Article 171 of the same Code penalizes a private



individual who forges a signature of another in public document. However, in the absence of criminalintent, there is no falsification and the absence of damage negates criminal intent. x x x[26]

Subsequently, respondent filed a petition for review under Rule 43 of the Rules of Court with the CA.In its Decision dated July 18, 2003, the CA modified the Resolution dated May 8, 2002 issued by theSecretary of Justice, as follows:

WHEREFORE, the Resolution dated May 8, 2002 issued by the Department of Justice is herebyMODIFIED. Finding probable cause against private respondent Robert Lastrilla, we hereby direct theOffice of the Prosecutor of Tacloban City to issue a recommendation for the filing of three (3)informations charging Robert Lastrilla of the crime of Falsification of Public Document under Article172 (1), in relation to Article 171 (1), (2) and (5) of the Revised Penal Code.

SO ORDERED.[27] (emphases supplied)

The CA ratiocinated that:

In the case of Robert Lastrilla, there are allegations that: first, he knew that the three deeds of sale

were falsified and, despite such knowledge, he still signed them as an instrumental witness; second,he was personally and directly responsible for registering the falsified deeds with the Register ofDeeds of Tacloban City; third, he caused the cancellation of the Transfer Certificates of Title in thename of Aurora Granda; finally, he effected the issuance of the new Transfer Certificates of Title.

The foregoing circumstances convinces us of the presence of probable cause against privaterespondent Robert Lastrilla, as the evidence will show that there is a reasonable ground forpresumption that a falsification exists as would lead the prosecutor to believe that he is probablyguilty of the offense charged and can be held for trial.[28]

Petitioner's partial motion for reconsideration proved futile.[29] Hence, he filed the instant petition,assigning as lone error that:

[THE] COURT OF APPEALS GRAVELY ERRED IN FINDING PROBABLE CAUSE AGAINST[PETITIONER] ROBERT A. LASTRILLA FOR FALSIFICATION OF PUBLIC DOCUMENT UNDER

ARTICLE 172 (1), IN RELATION TO ARTICLE 171 (1), (2), AND (5) OF THE REVISED PENALCODE.[30]

Articles 172 (1) and 171 (1), (2) and (5) of the Revised Penal Code, state that:

Art. 172. Falsification by private individuals and use of falsified documents.-- The penalty of prisioncorreccional in its medium and maximum periods and a fine of not more than P5,000 shall beimposed upon:

1. Any private individual who shall commit any of the falsifications enumerated in the next precedingarticle in any public or official document or letter of exchange or any other kind of commercialdocument; x x x

Article 171. x x x

1. Counterfeiting or imitating any handwriting, signature or rubric;



2. Causing it to appear that persons have participated in any act or proceeding when they did not infact so participate; x x x

5. Altering true dates; x x x

In the case at bar, there is no question that all the elements of falsification are present. The issue is

whether there is probable cause to engender the belief that petitioner is one of the authors of thefalsification.

Petitioner questions the findings of the CA that: (a) he knew that the three deeds of absolute sale inquestion were falsified but still signed the same as an instrumental witness; and (b) despite suchknowledge, he personally and directly caused the registration of the same with the Register ofDeeds of Tacloban, the cancellation of the TCTs in the name of Aurora and the issuance of the newTCTs in the names of the respective vendees. He contends that the decision of the CA findingprobable cause to file three (3) informations for Falsification of Public Document under Article 172(1)in relation to Article 171(1), (2) and (5) of the Revised Penal Code against him is merely based onthe allegations of respondent, unsubstantiated by any evidence on record.[31]

We disagree.

In a preliminary investigation, probable cause for the filing of an information by the prosecutor hasbeen defined as "the existence of such facts and circumstances as would excite the belief, in areasonable mind, acting on the facts within the knowledge of the prosecutor, that the person chargedwas guilty of the crime for which he was prosecuted."[32] It is well-settled that "a finding of probablecause needs only to rest on evidence showing that more likely than not a crime has been committedand was committed by the suspects. Probable cause need not be based on clear and convincingevidence of guilt, neither on evidence establishing guilt beyond reasonable doubt, and definitely noton evidence establishing absolute certainty of guilt."[33]

From the records, there is no question that petitioner signed as an instrumental witness to thesubject deeds of absolute sale. As such, he attested that the Granda spouses, as vendors, signedthe said deeds in his presence on December 7, 1985. By petitioner's own admission, however, thenegotiations for the sales only started in 1998, thus, the deeds were admittedly antedated. Theinvestigating prosecutor, the DOJ and the CA also unanimously found probable cause to believe thatthe signatures of the Granda spouses were falsified as evidenced by: (a) the PNP Crime Laboratoryreport which concluded that the specimen signatures of the spouses did not match the signaturesaffixed in the subject deeds; and (b) the undisputed fact that vendor-spouse Rafael died in June1989. The disputable presumption is that a person intends the ordinary consequences of hisvoluntary act and takes ordinary care of his concerns.[34] This presumption assumes greatersignificance to the case of petitioner who, as "the one tasked [by his siblings] to ensure that thesignatures on the subject deeds were all authentic and genuine," is naturally expected to not havevoluntarily affixed his signature in the subject deeds unless he understood the clear significance ofhis act.

Moreover, there is sufficient evidence to prove that petitioner "was personally and directlyresponsible for registering the falsified deeds with the Register of Deeds of Tacloban City" and that"he caused the cancellation of the Transfer Certificates of Title in the name of Aurora" and "effectedthe issuance of the new Transfer Certificates of Title." The following pieces of evidence support suchfindings: (a) a copy of Control No. 183 dated February 28, 2000 and the certification of the Registerof Deeds state that petitioner "presented for registration" the three deeds in question to the Registerof Deeds;[35] and (b) a copy of the entries in the Receiving and Releasing Book of the Office of theRegister of Deeds of Tacloban City and the Certification dated July 4, 2001 of the Register of Deeds



show that the deeds in question were released to petitioner on March 3, 2000.[36] Petitioner'sdefense that it was actually Aurora who effected the transfer cannot overcome the presumption infavor of the Register of Deeds that in issuing the certifications, official duty has been regularlyperformed.[37] Notably, other than his bare assertion, petitioner did not present any other evidenceto corroborate his claim, i.e., the testimony of the alleged representative of Aurora who made himsign the questioned application form. In the absence of satisfactory explanation, one found in

possession of and who used a forged document is the forger of said document.[38] If a person hadin his possession a falsified document and he made use of it, taking advantage of it and profitingthereby, the clear presumption is that he is the material author of the falsification.[39]

The presumptions elicited by the evidence on record are not of little significance. The effect of apresumption upon the burden of proof is to create the need of presenting evidence to overcome theprima facie case created, thereby which, if no contrary proof is offered, will prevail.[40]

Petitioner lays stress on the ruling of the DOJ that "in the absence of criminal intent, there is nofalsification and the absence of damage negates criminal intent." The following circumstancesallegedly show lack of criminal intent on his part, viz: (a) Respondent did not question theeffectiveness and consummation of the sale transactions in question or assail the authority of Aurorato do so. In fact, complainant himself confirmed the validity of the sale made by Aurora of herproperties by executing the Deed of Assignment dated April 20, 2000; (b) Petitioner and his siblingspaid the sum of P18,800,000, hence, could not have intentionally and maliciously participated in thefalsification of the subject documents as it would be adverse to their interests; (c) The other heirs of

Aurora did not join respondent in filing the instant complaint, thus, giving credence to the claim ofpetitioner that the sale transactions were regular, done in good faith and for valuable consideration;(d) Respondent had no right which was violated by the execution of the subject deeds as Aurora hadthe free disposition of her properties during her lifetime; and (e) It is rather "odd" for complainant tohave initiated the instant action only after the death of his grandmother Aurora. Finally, petitioneralso invokes the defense of good faith. He contends that assuming he knew or had a hand in thefalsification of the three (3) deeds of absolute sale and used the same to process the issuance of thenew TCTs, said act is not a punishable act of falsification as the same was authorized by the heirs of

Aurora, including respondent.[41]

The arguments are unmeritorious.

The mentioned circumstances in the ruling of the DOJ which allegedly negate the existence ofcriminal intent on the part of petitioner are unavailing. First, the contention that the validity of the saletransactions was not disputed is contrary to the allegations of respondent and the evidence onrecord. In his complaint-affidavit, respondent alleged that "the purported sale of the subjectproperties on 07 December 1985 is false and fraudulent."[42] Moreover, the new TCTs issued in thenames of the vendees through the deeds in question have an annotation of respondent's adverseclaim that "the deed[s] of sale are simulated."[43] Second, petitioner's reliance on the deeds ofassignment signed by respondent and his co-heirs to prove the validity of the sale transactions isshaky. By said deeds, the heirs of Aurora merely acknowledged that they received certain sums ofmoney from the Uys and that they "assign[ed], transfer[red] and convey[ed] unto and in favor of"

Aurora "all [the] rights, interests, and participation that [they] have or may have in any and all parcelsof land,[44] wherever located, together with all the improvements thereon, two parcels of land" ofwhich were particularly described as the ones covered by TCT No. T-816. No reference was madeto the alleged contracts of sale between Aurora and the Uys. Likewise, said deeds contain a markedcontradiction: if indeed, the properties were the "exclusive and paraphernal properties" of Aurora,why was there a need for her heirs (which included respondent) to assign their rights to her? Finally,the attribution of ill-motive to respondent by the fact that the complaint was only filed after Auroradied and that respondent was not joined in by his co-heirs in filing the complaint are speculative and



are not sufficient to overcome the legal presumptions establishing a prima facie case for falsificationagainst petitioner.

In any case, even assuming that the payment of the sum of P18,800,000 shows lack of damage onthe part of respondent and his co-heirs, petitioner's conclusion that there can be no criminal intent inthe absence of damage is hasty, to say the least. Criminal intent is a mental state, the existence of

which is shown by the overt acts of a person.[45] We have clarified that the absence of damagedoes not necessarily imply that there can be no falsification as it is merely an element to beconsidered to determine whether or not there is criminal intent to commit falsification.[46] It is asettled rule that in the falsification of public or official documents, it is not necessary that there bepresent the idea of gain or the intent to injure a third person for the reason that in the falsification of apublic document, the principal thing punished is the violation of the public faith and the destruction ofthe truth as therein solemnly proclaimed.[47] In this case, petitioner's voluntary acts of: (a) signing aswitness to the three antedated notarized deeds of absolute sale, attesting that the Granda spouses,as vendors, signed the same in his presence, when there is probable cause to believe that suchsignatures were falsified; and (b) knowingly causing the registration of the three falsified deeds withthe Register of Deeds to effect the cancellation of the old TCTs and the issuance of the new TCTs inhis name and the names of his siblings, evidence malice and willful transgression of the law.

We likewise reject petitioner's defense of good faith. As pointed out by respondent, the contentionthat even assuming petitioner had a hand in the falsification and use of the falsified instruments, heis not liable because he was authorized by Aurora and her heirs, was belatedly raised on appeal.

Also, as logically pointed out by respondent, he is an heir of Aurora and definitely, he did notauthorize petitioner to falsify the subject deeds and use the same to effect the transfer of the TCTsfrom the name of Aurora to his name and that of his siblings. Furthermore, the finding that there isprobable cause to believe that the signatures of both Aurora and Rafael were falsified and the datesof the instruments were antedated lay serious doubt on the claim that the conveyance was indeedauthorized by Aurora herself. To further sow doubt on the claim of authority, respondent's claim thatin 1999, his grandmother Aurora was already "too sickly and frail to execute said documents," findssupport in the evidence on record. A certain Rebecca Araza, a househelp in the residence of Aurora,attested that in 1999, she was one of those who took care of Aurora who was then "very sickly,"

"could hardly recognize faces,… remember names and events and very rarely talked" and whose"condition worsened starting January 1999."[48] Also bolstering respondent's claim is the noticeablefact that Aurora signed the GPOA dated February 14, 1999 in favor of Silvina by affixing herthumbmark instead of her customary signature.[49]

While it is this Court’s general policy not to interfere in the conduct of preliminary investigations,leaving the investigating officers sufficient discretion to determine probable cause,[50] we havenonetheless made some exceptions to the general rule, such as when the acts of the officer arewithout or in excess of authority.[51] Although there is no general formula or fixed rule for thedetermination of probable cause since the same must be decided in the light of the conditionsobtaining in given situations and its existence depends to a large degree upon the finding or opinionof the judge conducting the examination, such a finding should not disregard the facts before the

judge nor run counter to the clear dictates of reason.[52] From the records of the case at bar, it isclear that a prima facie case for falsification exists against petitioner.

IN VIEW WHEREOF, the petition is DENIED. The July 18, 2003 Decision of the Court of Appeals inCA-G.R. No. 26273 is hereby AFFIRMED.

SO ORDERED.



Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 114138 June 16, 1995

PONCIANO LAYUG, Petitioner , vs. THE HON. SANDIGANBAYAN and PEOPLE OF THE

PHILIPPINES, Respondents.

PADILLA, J.: virtuallaw library

In four (4) separate Informations filed in Criminal Cases Nos. 13517, 13518, 13519 and 13520, petitioner Ponciano Layug wascharged with the crime of Estafa through Falsification of Public Documents as defined and penalized under Articles 315 and 171of the Revised Penal Code. virtualawlibrary virtuallaw library

The Informations are phrased in substantially identical language and differ from each other only as to particulars referring todates of the commission of the offense and amounts involved. They charge the accused (herein petitioner) of falsifying his dailytime records (DTRs) for the months of January, February, March and April 1986 by making it appear therein that he performedhis assigned work as Guidance Counselor in the Davao del Sur National High School during the dates shown in said daily timerecords, thereby enabling him to collect and receive his corresponding salaries for the said months, when in truth and in fact, saidaccused did not actually perform his duties and functions as Guidance Counselor for the said periods. virtualawlibrary virtuallaw library

A warrant for petitioner's arrest was issued on 9 May 1989 which was referred on 26 May 1989 to the National Bureau ofInvestigation for implementation. However, it appears that on 17 May 1989, petitioner voluntarily surrendered and posted his bail

bond with the Regional Trial Court, Branch 18, Digos, Davao del Sur. Upon arraignment on 21 July 1989, petitioner entered a plea of not guilty to all the charges against him.virtualawlibrary virtuallaw library

After joint trial of the cases, the Sandiganbayan 1 found petitioner guilty beyond reasonable doubt of the crime charged. Thedispositive part of its decision dated 31 January 1991 reads as follows:

WHEREFORE, accused Ponciano M. Layug is hereby declared GUILTY beyond reasonable doubt as principal of the crime of Estafa Thru Falsification of Public Documents defined and penalized under Articles315 and 171 in relation to Article 48 of the Revised Penal Code in Crim. Case Nos. 13517, 13518, 13519 and13520. Appreciating in his favor the mitigating circumstance of voluntary surrender and applying theIndeterminate Sentence Law, he is hereby sentenced to suffer, for each case, an indeterminate penalty rangingfrom TWO (2) YEARS, FOUR (4) MONTHS and ONE (1) DAY of prision correcional as minimum to TEN(10) YEARS and ONE (1) DAY of prision mayor as maximum; to pay a fine of P2,000.00 without subsidiaryimprisonment in case of insolvency; to indemnify the government of the Republic of the Philippines in theamount of P612.80 in Crim. Case No. 13517, P421.30 in Crim. Case No. 13518, P229.80 in Crim. Case No.13519 and P153.20 in Crim. Case No. 13520; and to pay the costs. virtualawlibrary virtuallaw library

SO ORDERED. 2 virtuallaw library

Petitioner's motion for reconsideration filed on 15 February 1995 was denied on 23 February 1995 for lack of merit.virtualawlibrary virtuallaw library

In the present petition for review, petitioner Layug assails the Sandiganbayan's decision as contrary to law and not substantiated by the evidence on record.virtualawlibrary virtuallaw library

Petitioner contends that Exhibit "L", 3 on which the Sandiganbayan based mainly its judgment of conviction, is not a crediblerecord of his attendance in the Guidance Office for the periods involved in the charges. virtualawlibrary virtuallaw library



Petitioner avers that the entries in said Exhibit "L" are mere fabrications and not factual. He cites in particular the testimony ofMrs. Lizbeth Sur, Guidance Counselor, who testified that she made a daily record of petitioner's attendance at the GuidanceOffice. She declared:

JUSTICE BALAJADIA virtuallaw library

Q When you monitored the arrival of Mr. Layug you assumed that when he arrived at hisdesk that was the time he arrived in the office. virtualawlibrary virtuallaw library

A When he reported at the Guidance Office. virtualawlibrary virtuallaw library


Q That was the time when you recorded it? virtuallaw library

A You did not determine first whether he passed by the library before reporting to hisdesk. [ sic]. virtualawlibrary virtuallaw library

A No, your Honor. virtualawlibrary virtuallaw library

Q Did Mr. Layug have any classes? virtuallaw library

A I do not know, your Honor. virtualawlibrary virtuallaw library

Q You did not know? virtuallaw library

A I did not know. virtualawlibrary virtuallaw library

Q And when Mr. Layug would leave the Guidance Office you assume that he left theschool?virtuallaw library

A Yes, your Honor. virtualawlibrary virtuallaw library

Q You did not determine whether he passed by the library and work there? virtuallaw library

A No, sir because the instruction was to monitor his attendance once he report to theGuidance Office.virtualawlibrary virtuallaw library

PJ GARCHITORENA virtuallaw library

Q Mrs. Sur, when you put a dash that means a working day and Mr. Layug is absent? virtuallaw library


Q And when you have the date encircled, that means a Saturday or a Sunday? virtuallaw library


Q And for the first week of February according to you, in 1986, February 1 was aSaturday and February 2nd was a Sunday? virtuallaw library


Q But February 7 was snap election, is that not so? virtuallaw library




Q And therefore, there was no classes? virtuallaw library


Q Why did you not encircle it, instead you put a dash and that means that like any otherworking day Mr. Layug did not show up. Because if it was a holiday you would haveencircled it, is that not so? virtuallaw library


Q Now refreshing your memory, was not that whole week ending February 7 non-working days? virtuallaw library


Q You did not encircle February 3 to February 7, instead you put dashes to indicate thatMr. Layug was absent, is that not so? Of course he was absent, all of you were absent, isthat not correct.virtualawlibrary virtuallaw library

A (No answer). virtualawlibrary virtuallaw library

Q Is that not correct Mrs. Sur? The whole week, February 3 to February 7 were notregular working days, and, therefore, it should have been encircled? virtuallaw library


Q In fact you put dash there up to the next working day, is that correct? virtuallaw library


Q And that was February 8? virtuallaw library

A February 10, your Honor. virtualawlibrary virtuallaw library

Q Was February 10, Monday after election day was a working day? virtuallaw library

A There is a dash. virtualawlibrary virtuallaw library

Q You put a dash meaning it was a regular school. In actual fact was it a school day. virtualawlibrary virtuallaw library

A I cannot remember, your Honor. virtualawlibrary virtuallaw library

Q You are not sure. So, at least for the first week of February your daily time record for

the appearance of Mr. Layug is not reliable. virtualawlibrary virtuallaw library

A Classes were suspended I think from January 27 to February 7, but in the province wehave the option to report. virtualawlibrary virtuallaw library

Q If that is the case even your daily time record of Mr. Layug for the month of January isunreliable because from January 27 to January 31 you also put dashes to indicate thatthese are regular school days and that Mr. Layug was absent, and yet you did not encircleJanuary 27? virtuallaw library




Q In fact from January 27 to February 7, 1986 you did not even show up in school? virtuallaw library

A I was there.virtualawlibrary virtuallaw library

Q Why were you there? There was no classes? virtuallaw library

A I was there from January 27 because we have the option to report to the office. (TSN, pp. 81-85, June 6, 1986).

xxx xxx xxx


Q When you encircled a date there your intention was to indicate that the data encircledwas a Saturday or a Sunday? virtuallaw library


Q Did you intend to encircle a day which is not a Saturday or a Sunday but a non-working day? virtuallaw library


Q What indication did you make to show that a day which is not a Saturday or a Sundaywas a non-working day? virtuallaw library

A I put a dash. virtualawlibrary virtuallaw library

PJ GARCHITORENA virtuallaw library

Q So, you are telling us that the whole month of February except for the dates wherethere are time indicated, are all dashes and, therefore, they were non-working days. Forthe whole month of February there was not a single working day except for the hoursindicated there, is that what you mean? virtuallaw library


Q Now, Mrs. Sur, let us stop playing games and be honest. Did you actually prepare thisdaily time record on the specific dates of each month represented by this daily timerecord?virtuallaw library

A Yes, your Honor, I was the one who prepared this one. virtualawlibrary virtuallaw library

Q That is not the question. The question is, did you fill this up on the specific datesindicated there. That is what you told Atty. Manzano that on each particular day you fillup the particular blank, so we ask you now, do you insist in that answer? virtuallaw library

A These are the times indicated here. I just cannot recall the holidays. virtualawlibrary virtuallaw library

Q You cannot recall the holidays. So on holidays what did you put? virtuallaw library

A I just put a dash.virtualawlibrary virtuallaw library



Q So, how would you distinguish? We go back to the old question of Justice Balajadia.How would you distinguish a non-class day where nobody show-up with a regular classday where Mr. Layug did not show-up? How would you differentiate? virtuallaw library

A These dates sir I placed dash. virtualawlibrary virtuallaw library

Q That is not the question. You must listen to the question. As a good guidancecounsellor [sic] you must listen. So, listen again. virtualawlibrary virtuallaw library

Q How would you be able to distinguish whether it is not a class day or whether it is aregular class day and Mr. Layug is gallivanting downtown? How would you be able todifferentiate by looking at your daily time record. virtualawlibrary virtuallaw library

A For February, Saturdays and Sundays I put circle. virtualawlibrary virtuallaw library

Q You answer the question. You see now you are avoiding. That is a bad habit of aguidance counsellor. [ sic] Answer the question. virtualawlibrary virtuallaw library

A I cannot distinguish anymore.virtualawlibrary virtuallaw library

Q And yet the purpose of this daily time record is precisely to distinguish the dates when.Mr. Layug is gallivanting if he is gallivanting, and the dates when he shows up, is thatcorrect? virtuallaw library


Q And when he shows up the purpose at [ sic] this daily time record is to determine whenhe shows up for a short while and when he shows up according to the prescribedschedule, is that correct? virtuallaw library


Q And, therefore in that respect this daily time record has failed to perform its function,

at least in February, is that correct. virtualawlibrary virtuallaw library

A (No answer). virtualawlibrary virtuallaw library

PJ GARCHITORENA.virtualawlibrary virtuallaw library

Make it of record that the witness does not answer. Thank you Mrs. Sur, you are nowexcused. (TSN, pp. 85-88, June 6,199) 4 [sic]

According to petitioner, even the private complainant, Mr. Ramon Presto, principal of the Davao del Sur National High School,chiefly relied on the inaccurate Exhibit "L" as basis for his knowledge of the attendance at the Guidance Office of petitionerLayug. In other words, Presto's testimony is not based on his own personal knowledge. Thus -

Direct Examination virtuallaw library

PROS. QUERUBIN virtuallaw library

Q Mr. Presto, I am showing to you these Daily Time Records of Mr. Layug for themonths of January, February, March and April 1986. Of course, you do not deny that thesignatures appearing above the name Ramon Presto is your signature? virtual law library

A Yes, sir.virtualawlibrary virtuallaw library



Q These Daily Time Records, particularly Exhibits "G", "H" and "I", show that Mr.Layug has a perfect attendance for all these three months (January, February and March1986). Do you know of your own personal knowledge whether this attendance reflectedon Exhibits "G", "H" and "I" are correct? virtuallaw library


Of your own knowledge. virtualawlibrary virtuallaw library

A Not correct, sir. virtualawlibrary virtuallaw library

PROS. QUERUBIN.virtualawlibrary virtuallaw library

Q How about the time of arrival and time of departure of Mr. Layug reflected in theDairy Time Record for the month of April 1986, do you know if these time of arrival andtime of departure are correct? virtuallaw library

A They are not correct, sir. virtualawlibrary virtuallaw library


Q How did you know that they are not correct? virtuallaw library

A As shown by the report of the Guidance Counselor that this record is not correct, yourHonor. virtualawlibrary virtuallaw library

Q What you are saying is, on the bais [ sic] of the report of some other people, youlearned that the statements in the Daily Time Records from January to April 1986 wereincorrect?virtuallaw library


Q Did you see him also absent on the dates he said he was present? virtuallaw library

A I did not, your Honor. virtualawlibrary virtuallaw library

Q so, [ sic] your only source of information is the report of the Guidance Counselor. virtualawlibrary virtuallaw library


Q Is that what has been marked as Exhibit "L"? virtuallaw library

A Yes, your Honor. (TSN, pp. 18-19, June 5, 1990) 5

It is clear from the records that the conviction of petitioner rests mainly on the testimonies of the principal witnesses, namely:

Mrs. Jesusa Trinidad, Department Head of the Guidance Office; Mrs. Lizbeth Sur, Guidance Counselor; and Mr. Ramon Presto,school Principal.virtualawlibrary virtuallaw library

Mrs. Trinidad testified that she received a memorandum dated 6 January 1986 from the school principal, instructing her tomonitor the attendance of Ponciano Layug. She instructed Mrs. Sur and other guidance counselors to also keep a record ofLayug's daily attendance. She stated that on two (2) occasions (January and February 1986) she reported to Mr. Presto Layug'sirregular attendance and he refused to sign his (Layug's) DTRs for the said months and that she never informed Layug that shewas monitoring his attendance everyday.virtualawlibrary virtuallaw library



Mrs. Sur testified that after she was instructed by Mrs. Trinidad to record the attendance and working hours of Layug, she startedmonitoring his daily attendance; that she was never absent during the period she was monitoring Layug's attendance from Januaryup to April 1986; that her observation of Layug's actual attendance and hours of work is confined to the Guidance Office and thatshe did not bother to know his whereabouts outside said office. However, she could not explain why she placed dashes (toindicate that Layug was absent during regular working days) instead of circles for Saturdays, Sundays and non-working days inLayug's DTRs.virtualawlibrary virtuallaw library

Mr. Presto admitted he did not personally observe Layug coming to and going from work at the Guidance Office but merelyrelied on the reports of the guidance counselors. When asked by the trial court why he signed Layug's daily time records forJanuary, February, March and April 1986 despite having been informed of his irregular attendance, Presto claimed he signedthese DTRs in good faith, and since there were around 200 DTRs he had to sign, he might have signed those of Layug thruoversight. virtualawlibrary virtuallaw library

This Court has previously held that -

On appeal, the findings of the trial court on the credibility of witnesses would not normally be disturbed, indeference to the trial court's peculiar advantage of having observed in the first instance, the demeanor ordeportment of the witnesses in giving their testimony. But it has been consistently held that this rule ofappreciation of evidence must yield to the superior and immutable rule that the guilt of the accused must be

proved beyond reasonable doubt. It is fundamental that an accused is presumed innocent. And this presumption must prevail unless overturned by competent and credible proof. 6

virtuallaw library

It can readily be seen from the testimonies of prosecution witnesses that there was a concerted effort on the part of said witnessesto pass off Exhibit "L" as an accurate and correct record of the petitioner's daily school attendance and hours of work. Yet, fromthe admission of Mrs. Sur, the author of said Exhibit "L", it can readily be seen that her record of the regular school days andholidays or non-working days was not precise to say the least. She admitted that she could not distinguish from her record whichwere working and which were non-working days. virtualawlibrary virtuallaw library

The Court does not agree with the Sandiganbayan that the inconsistencies in the testimony of witness Sur are minor ones. Beingthe basis for the petitioner's conviction, it had to be true and credible evidence unimpaired by material discrepancies. She wasemphatic in her testimony that she was never absent from January to April 1986, personally entering the data on daily attendanceof Layug for the said period. Yet, she recorded supposed absences of petitioner even during holidays or non-working days,

particularly in January and February 1986. Exhibit "L" cannot thus be considered a credible record of petitioner's attendance inthe Guidance office for the period involved therein. virtualawlibrary virtuallaw library

The Court likewise rejects Mr. Presto's posture that he signed the inaccurate or false daily time records (DTRs) of petitioner ingood faith. As early as January 1986, he had received information about Layug's attendance. It is unthinkable that despite hisknowledge of the alleged irregular attendance of petitioner, he did not take extra care to segregate and scrutinize petitioner'sDTRs starting in January 1986 so as to give himself (Presto) justification not to sign the same. Likewise, if he were diligent andserious enough about pursuing the subject of his memorandum to the department head, he would not have signed the daily timerecords without her initials.virtualawlibrary virtuallaw library

We do not agree with respondent court that the signature/approval by the principal of petitioner's DTRs is completely irrelevantand immaterial. Without the said signature of the principal, petitioner could not have collected or received his salaries for thecorresponding months. If petitioner did not receive his salaries, no damage and prejudice could have been caused thegovernment. virtualawlibrary virtuallaw library

For evidence to be believed, it is basic that it must not only proceed from the mouth of a credible witness; it must be credible initself such as the common experience and observation of mankind can approve as probable under the circumstances. 7

Respondent court found the evidence for the defense not convincing as it was not corroborated by other witnesses. Although theevidence for the defense is weak, criminal conviction must come from the strength of the prosecution's evidence and not from theweakness of the defense. 8

After a thorough review of the evidence and the records, it is the Court's conclusion that the prosecution failed to prove the guiltof petitioner beyond reasonable doubt. The evidence presented by the prosecution is not sufficiently reliable and convincing so asto overcome the constitutional presumption of innocence in favor of the accused. The crime charged has not been proved beyondreasonable doubt or with moral certainty. Hence, petitioner must be acquitted. virtualawlibrary virtuallaw library