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434

SUPREME COURT REPORTS ANNOTATED


Amper vs. Sandiganbayan
*

G.R. No. 120391. September 24, 1997.

SIMPLICIO AMPER, petitioner, vs. SANDIGANBAYAN


and PEOPLE OF THE PHILIPPINES, respondents.
Criminal Law; Witnesses; Absent a showing that the prosecution
witnesses were actuated by any improper motive, their testimony is
entitled to full faith and credit.No ill-motives have been shown to
induce the abovementioned witnesses to falsely testify against the
petitioner and maliciously implicate him in the said crime. The
petitioners representation that Mayor Duterte had an axe to grind

_______________
*

THIRD DIVISION.

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Amper vs. Sandiganbayan


against him because he did not support the latter in the past
elections is unsupported by evidence and cannot, thus, be accorded
any iota of consideration. At the risk of being repetitious, we state
here the well established rule that absent a showing that the
prosecution witnesses were actuated by any improper motive, their
testimony is entitled to full faith and credit. This being so, the
petitioners claim of non-involvement must necessarily fail, for
denial, to reiterate, cannot prevail over positive identification.
Same; Same; With respect to who as between the prosecution

and the defense witnesses are to be believed, the trial courts


assessment thereof enjoys a badge of respect for the reason that the
trial court has the advantage of observing the demeanor of the
witnesses as they testify.Moreover, what the petitioner ultimately
assails are the factual findings and evaluation of witnesses
credibility by the trial court. It is a settled tenet, however, that the
findings of fact of the trial court is accorded not only with great
weight and respect on appeal but at times finality, provided that it
is supported by substantial evidence on record, as in this case. With
respect to who as between the prosecution and the defense
witnesses are to be believed, the trial courts assessment thereof
enjoys a badge of respect for the reason that the trial court has the
advantage of observing the demeanor of the witnesses as they
testify.
Same; Criminal Procedure; New Trial; Evidence; Newly
Discovered Evidence; The requisites for newly discovered evidence as
a ground for new trial are: (a) the evidence was discovered after the
trial; (b) such evidence could not have been discovered and produced
at the trial with reasonable diligence; and (c) that it is material, not
merely cumulative, corroborative or impeaching, and is of such
weight that, if admitted, will probably change the judgment.Anent
the petitioners attempt to obtain a new trial of his case on the
ground of newly discovered evidence, suffice it to state that it
simply cannot be allowed as correctly ruled by the Sandiganbayan
for the undeniable reason that the testimonies of Francisco Chavez
and Segundo Tan which the petitioner seeks to belatedly present do
not constitute newly discovered evidence. Under the Rules of Court,
the requisites for newly discovered evidence as a ground for new
trial are: (a) the evidence was discovered after the trial; (b) such
evidence could not have been discovered and produced at the trial
with reasonable diligence; and (c) that it is material, not merely
cumulative, corroborative or impeaching, and is of such weight that,
if admitted, will probably change the judgment. All three requisites
must charac436

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SUPREME COURT REPORTS ANNOTATED


Amper vs. Sandiganbayan

terize the evidence sought to be introduced at the new trial.


Unfortunately, by petitioners own admission, it is not clear on the

record why were (sic) they (testimonies of Francisco Chavez and


Segundo Tan) not presented (but) the accused (herein petitioner)
had manifested that they should have been presented x x x. Aside
from the petitioners bare assertion that the non-presentation of
these testimonies was not due to his fault or negligence, he
miserably failed to offer any evidence that the same could not have
been discovered and produced at the trial despite reasonable
diligence.
Same; Anti-Graft and Corrupt Practices Act; A person who, by
taking advantage of his official position in the city government, is
able to use for his personal gain, a government owned property
without any consideration and without any authority from the
government, causes undue injury to the city government.By taking
advantage of his official position as Assistant City Engineer of
Davao City, the petitioner was able to use for his personal gain, a
city government owned Allis Backhoe without any consideration
and without any authority from the city government, thereby
causing undue injury to the Davao City government consisting in
the undue wear and tear caused to the said equipment and its use
without consideration.

PETITION for review of a decision of the Court of Appeals.


The facts are stated in the opinion of the Court.
Arniel N. Bondoc for petitioner.
FRANCISCO, J.:
The petitioner, SIMPLICIO AMPER, was charged with the
violation of Section 3(e) of Republic Act No. 3019 otherwise
known as the Anti-Graft and Corrupt Practices Act which
provides as follows:
Sec. 3. Corrupt practices of public officers.In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and
are hereby declared to be unlawful:
xxx
xxx
xxx
(e) Causing any undue injury to any party, including the
Government, or giving advantage or preference in the discharge of
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Amper vs. Sandiganbayan

437

his official administrative or judicial functions through manifest


partiality, evident bad faith, or gross inexcusable negligence. This
provision shall apply to officers and employees of offices or
government corporations charged with the grant of licenses or
permits or other concessions.

The Information against him reads:


That on or about August 7, 1988, in the City of Davao, Philippines,
and within the jurisdiction of this Honorable Court, the
abovementioned accused, a public officer, being then the Assistant
City Engineer of Davao City, taking advantage of his official
position, with manifest partiality and bad faith in the discharge of
his official duties, did then and there wilfully-(sic) unlawfully, and
criminally, cause undue injury to the Republic of the Philippines by
using for his personal benefit and advantage, to treasure hunt, one
(1) unit Allis Backhoe, belonging to the City Government of Davao,
without the knowledge, consent and authority from the latter, to the
damage and prejudice of the City Government of Davao.
1
CONTRARY TO LAW.

Upon arraignment the petitioner pleaded not guilty and


trial ensued. The prosecution presented its witnesses
whose testimonies are succinctly summarized in the
Comment filed by the Office of the Solicitor General (OSG),
the pertinent portions of which we quote hereunder with
approval.
On August 1, 1988, Filemon Cantela was visiting his two sistersin-Christ near the vicinity of the Guzman Estate at Matina
District, Davao City when he chanced upon petitioner Simplicio
Amper, Assistant City Engineer, Davao City, together with two
others, scanning the area with the use of detector. After petitioner
had left, he inquired and gathered from the landowner, Emilio
Alvarez-Guzman, that petitioner and his companions were looking
for hidden treasure and that they were planning to operate in the
area with the use of a backhoe which is a heavy equipment used for
excavating. Apprehensive that appellant, being the Assistant City
Engineer, and as such had at his disposal the use of the city
government_______________
1

DECISION promulgated March 6, 1995 in Criminal Case No. 14197, p. 1;

Rollo, p. 28.

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SUPREME COURT REPORTS ANNOTATED


Amper vs. Sandiganbayan

owned backhoe, might actually make use of the said equipment,


he advised his sister-in-Christ to inform him if and when
petitioner would actually resume his treasure hunting operation in
the area. (TSN, April 11, 1991, pp. 14-19).
On August 6, 1988, around 6:00 oclock in the afternoon (sic),
Cantela was informed by his sister-in-Christ that petitioner and
five others were earlier in the area clearing the premises and
preparing to resume their treasure hunting operation that night.
Together with Mike Lusenara and Marcelo Gervacio, Jr. of the Civil
Security Unit, he prepared to conduct a surveillance on petitioner
and his companions that evening (Ibid., pp. 19-20).
They went to the area at about 8:30 in the evening and
discreetly waited for the arrival of petitioner and his companions.
Around 11:30 in (sic) the same evening, petitioner arrived on board
a Toyota Land Cruiser, together with two others who were on board
another vehicle. Shortly, after the arrival of petitioner and his
companions, a backhoe, bearing inscription on its sides that it is
owned by the city government of Davao City, arrived (Ibid., pp. 2226). The backhoe was being operated by Tobias Porta, a heavy
equipment operator assigned at the City Engineers Office, who was
with his assistant, Timoteo Borongan. Thereafter, Porta, upon the
instruction of petitioner, began to excavate the area with the use of
the backhoe. Cantela requested Henry Adriano to go to the house of
Davao City Mayor Rodrigo Duterte and inform him of petitioners
illegal activity (Ibid., pp. 27-30).
Around 2:15 in the morning of August 7, 1988, Mayor Duterte
arrived, together with several policemen, and surprised petitioner
and his companions who were still in the act of excavating the area.
However, before the Mayor could actually order their arrest, some of
petitioners companions scampered, leaving only petitioner, Porta
and Borongan (Ibid., p. 31).
Thereupon, Mayor Duterte ordered Porta to stop the engine of
the backhoe and confronted him as to what he was digging in the
area. Porta replied that he was ordered by appellant to dig for gold.
Mayor Duterte likewise confronted Borongan, who upon being
asked the same question, gave the same reply (Ibid.).
Duterte ordered one of the members of the Civil Security Unit to
pick up petitioner, who was then sitting in his vehicle parked
nearby. Mayor Duterte confronted petitioner and shortly thereafter,
ordered petitioner, Porta and Borongan to follow him to the Tolomo
Police Station (Ibid., p. 32).

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Amper vs. Sandiganbayan


Mayor Duterte declared that there are four (4) backhoes owned by
the city government of Davao City including the subject backhoe;
that he checked it out with the Office of the City Engineer and he
found out that no permission was granted to petitioner to use the
subject backhoe for private purposes (TSN, April 29, 1993, p. 12).
While in the past, the use of the city government-owned
backhoe for private purposes was allowed upon payment of the
corresponding rental, Mayor Duterte disallowed the same during
his administration because the city government which had so many
projects to undertake needed those equipment for the aforesaid
projects. He allowed the lease of the city-government-owned
backhoes to private individuals but not as matter of policy and only
2
in extreme cases upon payment of rental (Ibid.).

The petitioner denied the allegations against him and


asserted that contrary to Mayor Dutertes claim that the
use of the subject backhoe was unauthorized, the same was
in fact officially leased by the Davao City government to
Francisco Chavez of F.T. Chavez Construction, thus,3 its use
on the private property of Segundo Tan was proper. Public
respondent
Sandiganbayan
found
the
foregoing
asseveration to be without merit considering that
petitioner was caught en flagrante delicto directing the use
and operation of the said backhoe for his own treasure
hunting operations. Furthermore, the petitioner failed to
present either Francisco Chavez or Segundo Tan to
corroborate his testimony that the backhoe subject of the
instant case was the same backhoe
which Francisco Chavez
4
rented from the city government.
In a decision promulgated on March 6, 1995, the
Sandiganbayan convicted the petitioner of violating Section
3(e) of R.A. No. 3019 and sentenced him to suffer the
penalty of imprisonment of SIX (6) YEARS, ONE (1)
MONTH and ONE (1)
_______________
2

COMMENT in G.R. No. 120391 dated March 4, 1996, pp. 2-5; Rollo,

pp. 98-101.
3

PETITION FOR REVIEW in G.R. No. 120391 dated July 25, 1995, p.

9; Rollo, p. 21.
4

Supra, p. 15; Rollo, p. 42.


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SUPREME COURT REPORTS ANNOTATED


Amper vs. Sandiganbayan

day, to further suffer perpetual special


disqualification
5
from public office, and to pay the costs.
We have carefully reviewed the records of this case and
find nothing therein to warrant a reversal of the assailed
decision of the Sandiganbayan.
The petitioners conviction was anchored mainly on the
prosecution witnesses uniform testimonies that they saw
him in the actual perpetration of the crime charged.
Filomeno Cantela attested to the petitioners presence at
the scene of the crime from the inception of the treasure
hunting operation at around 11:30 in the evening of August
6, 1988 until his subsequent apprehension by the group of
Mayor Duterte at around 2:00 oclock in the morning of the
next day. Petitioners participation in the commission of the
said crime was categorically established also by Filomeno
Cantela who further testified that the backhoe
began to
6
operate upon the instructions of the petitioner. And no less
than the Mayor of Davao City whose group effected the7
petitioners arrest corroborated this eyewitness account.
Furthermore, even the backhoe operator, Tobias Porta,
belied the petitioners futile denials when he testified that
on the night of August 6, 1988, the petitioner asked him to
proceed to the vacant lot in front of the A-Mart in Matina
District, Davao City on the pretext that they were going to
install concrete culverts but upon reaching the said
lot,
8
petitioner ordered him to excavate the area for gold.
No ill-motives have been shown to induce the
abovementioned witnesses to falsely testify against the
petitioner and maliciously implicate him in the said crime.
The petitioners representation that Mayor Duterte had an
axe to grind against him because he did not support the
latter in the past elections is unsupported by evidence and
cannot, thus, be accorded any iota of consideration. At the
risk of being repeti_______________

Supra, p. 18; Rollo, p. 45.

Supra, pp. 12-13; Rollo, pp. 39-40.

Ibid.

Supra, p. 11; Rollo, p. 38.


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Amper vs. Sandiganbayan


tious, we state here the well established rule that absent a
showing that the prosecution witnesses were actuated by
any improper motive,
their testimony is entitled to full
9
faith and credit. This being so, the petitioners claim of
non-involvement must necessarily fail, for denial,
to
10
reiterate, cannot prevail over positive identification.
Moreover, what the petitioner ultimately assails are the
factual findings and evaluation of witnesses credibility by
the trial court. It is a settled tenet, however, that the
findings of fact of the trial court is accorded not only with
great weight and respect on appeal but at times finality,
provided that it is supported by substantial evidence on
record, as in this case. With respect to who as between the
prosecution and the defense witnesses are to be believed,
the trial courts assessment thereof enjoys a badge of
respect for the reason that the trial court has the
advantage of
observing the demeanor of the witnesses as
11
they testify.
Anent the petitioners attempt to obtain a new trial of
his case on the ground of newly discovered evidence, suffice
it to state that it simply cannot be allowed as correctly
ruled by the Sandiganbayan for the undeniable reason that
the testimonies of Francisco Chavez and Segundo Tan
which the petitioner seeks to belatedly present do not
constitute
newly discovered evidence. Under the Rules of
12
Court, the requisites for newly discovered evidence as a
ground for new trial are:
________________
9

People of the Philippines vs. Piandiong y Calda, et al., G.R. No.

118140, February 19, 1997; People of the Philippines vs. Calvo, Jr., et al.,
G.R. No. 91694, March 14, 1997; People vs. De la Cruz, 229 SCRA 754
[1994]; People vs. Perciano, 233 SCRA 393 [1994].
10

People vs. Calvo, Jr., ibid.; People vs. Herbieto, et al., G.R. No.

103611, March 13, 1997; People vs. Ferrer, 255 SCRA 19 [1996]; People
vs. Porras, 255 SCRA 514 [1996].
11

Pat. Rudy Almeda vs. Court of Appeals, et al., G.R. No. 120853,

March 13, 1997; People vs. Sumalpong, G.R. No. 123404, February 26,
1997; People vs. Herbieto, et al., ibid.; People vs. Panlilio, 255 SCRA 503
[1996]; People vs. Gamiao, 240 SCRA 254 [1995].
12

Section 2, Rule 121 of the Rules of Court; also Section 1, Rule 37 of

the Rules of Court.


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SUPREME COURT REPORTS ANNOTATED


Amper vs. Sandiganbayan

(a) the evidence was discovered after the trial; (b) such
evidence could not have been discovered and produced at
the trial with reasonable diligence; and (c) that it is
material, not merely cumulative, corroborative or
impeaching, and is of such weight that, if admitted, will
probably change the judgment. All three requisites must
characterize
the evidence sought to be introduced at the
13
new trial. Unfortunately, by petitioners own admission,
it is not clear on the record why were (sic) they
(testimonies of Francisco Chavez and Segundo Tan) not
presented (but) the accused (herein petitioner) had
14
manifested that they should have been presented x x x.
Aside from the petitioners bare assertion that the nonpresentation of these testimonies was not due to his fault
or negligence, he miserably failed to offer any evidence that
the same could not have been discovered
and produced at
15
the trial despite reasonable diligence. We also agree with
the Office of the Solicitor General (OSG) which accurately
observed that the testimonies sought to be introduced as
newly discovered evidence would not alter the judgment
even if admitted, thus:
Petitioner himself testified that he asked Tobias Porta to operate
the backhoe at the behest of Segundo Tan, who about one or two
days before August 7, 1988, requested him to look for a backhoe
operator, because he would be installing reinforced concrete culverts
along his property at the J.P. Laurel, McArthur Highway, Davao
City. However, Mayor Rodrigo Duterte, City Mayor of Davao City
caught petitioner en flagrante delicto directing the use and
operation of the backhoe, not for the purpose of installing reinforced
concrete culverts but for his own personal gold treasure hunting

operation (TSN, April 29, 1993, p. 9). Assuming, therefore, that the
testimonies of Francisco Chavez and Segundo Tan may be admitted
as newly discovered evidence, petitioner can still be held liable for
_______________
13

Commissioner of Internal Revenue vs. A. Soriano Corporation, et al., G.R.

No. 113703, January 31, 1997; Dapin vs. Dionaldo, 209 SCRA 38 [1992];
Bernardo vs. Court of Appeals, 216 SCRA 224 [1992]; Tumang vs. Court of
Appeals, 172 SCRA 328 [1989].
14
15

REPLY TO PUBLIC RESPONDENTS COMMENT, p. 3.


Commissioner of Internal Revenue vs. A. Soriano Corporation, et al.,

supra.

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VOL. 279, SEPTEMBER 24, 1997

443

Amper vs. Sandiganbayan


unauthorized use of the backhoe, because he was not himself
authorized to use the backhoe for treasure hunting operation; thus,
causing the government of Davao City undue injury because of the
16
undue wear and tear caused to the said equipment.

As a last recourse, the petitioner insists that the


testimonies of Francisco Chavez and Segundo Tan should
be admitted as newly discovered evidence since the
Sandiganbayan relied on the adverse presumption arising
from their non-presentation in convicting him. This
contention is unfounded and misleading. It is true that
according to the Sandiganbayan, the failure on the part of
the defense to present these vital witnesses without
offering any valid reason therefor, raised the presumption
that the testimonies of Francisco Chavez and Segundo Tan
would be adverse to petitioners interest if they were
actually presented. However, as discussed earlier, the
petitioners conviction was based on the overwhelming and
unrebutted evidence of his positive identification by the
prosecution witnesses, and not, as petitioner would have us
believe, on the presumption that the testimonies of
Francisco Chavez and Segundo Tan if presented would be
adverse to the defenses case. There is, in fact, only one
short paragraph in the entire nineteen (19) page decision of
the Sandiganbayan which adverts to the non-presentation
of Francisco Chavez and Segundo Tan as witnesses for the

17

defense. A close scrutiny of the assailed decision reveals


that the antecedent facts of this case as culled from the
testimonies of the witnesses
were painstakingly
18
established by the ponente in order to arrive at the correct
conclusions both of fact and of law. We cannot, thus,
subscribe to the petitioner's view and reduce the said
decision into a conviction premised on an erroneous
presumption.
By taking advantage of his official position as Assistant
City Engineer of Davao City, the petitioner was able to use
for
_______________
16

Supra, p. 6; Rollo, p. 102.

17

Supra, p. 15; Rollo, p. 42.

18

Sandiganbayan Justice, Sabino R. De Leon, Jr.


444

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SUPREME COURT REPORTS ANNOTATED


Amper vs. Sandiganbayan

his personal gain, a city government owned Allis Backhoe


without any consideration and without any authority from
the city government, thereby causing undue injury to the
Davao City government consisting in the undue wear and
tear caused to
the said equipment and its use without
19
consideration.
WHEREFORE,
the
assailed
decision
of
the
Sandiganbayan is hereby AFFIRMED in toto.
SO ORDERED.
Narvasa (C.J., Chairman), Romero, Melo and
Pangani-ban, JJ., concur.
Judgment affirmed in toto.
Notes.The three modes of committing the offense
under Sec. 3(e) of R.A. 3019 are distinct and different from
each other, and proof of the existence of any of these modes
suffices
to
warrant
conviction.
(Fonacier
vs.
Sandiganbayan, 238 SCRA 655 [1994])
A private individual hired on a contractual basis as
Project Manager for a government undertaking falls under

the non-career service category of the Civil Service and


thus is a public officer as defined by Sec. 2(b) of R.A. 3019.
(Preclaro vs. Sandiganbayan, 247 SCRA 454 [1995])
o0o
_______________
19

Supra, p. 19; Rollo, p. 46.


445

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