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Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 192330 November 14, 2012
ARNOLD JAMES M. YSIDORO, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
ABAD, J.:
This case is about a municipal mayor charged with illegal diversion of food intended for those
suffering from malnutrition to the beneficiaries of reconsideration projects affecting the homes of
victims of calamities.
The Facts and the Case
The Office of the Ombudsman for the Visayas accused Arnold James M. Ysidoro before the
Sandiganbayan in Criminal Case 28228 of violation of illegal use of public propertry (technical
malversation) under Article 220 of the Revised Penal Code.1
The facts show that the Municipal Social Welfare and Development Office (MSWDO) of Leyte,
Leyte, operated a Core Shelter Assistance Program (CSAP) that provided construction materials to
indigent calamity victims with which to rebuild their homes. The beneficiaries provided the labor
needed for construction.
On June 15, 2001 when construction for calamity victims in Sitio Luy-a, Barangay Tinugtogan, was
70% done, the beneficiaries stopped reporting for work for the reason that they had to find food for
their families. This worried Lolita Garcia (Garcia), the CSAP Officer-in-Charge, for such construction
stoppage could result in the loss of construction materials particularly the cement. Thus, she sought
the help of Cristina Polinio (Polinio), an officer of the MSWDO in charge of the municipality’s
Supplemental Feeding Program (SFP) that rationed food to malnourished children. Polinio told
Garcia that the SFP still had sacks of rice and boxes of sardines in its storeroom. And since she had
already distributed food to the mother volunteers, what remained could be given to the CSAP
beneficiaries.
Garcia and Polinio went to petitioner Arnold James M. Ysidoro, the Leyte Municipal Mayor, to seek
his approval. After explaining the situation to him, Ysidoro approved the release and signed the
withdrawal slip for four sacks of rice and two boxes of sardines worth P3,396.00 to CSAP.2 Mayor
Ysidoro instructed Garcia and Polinio, however, to consult the accounting department regarding the
matter. On being consulted, Eldelissa Elises, the supervising clerk of the Municipal Accountant’s
Office, signed the withdrawal slip based on her view that it was an emergency situation justifying the
release of the goods. Subsequently, CSAP delivered those goods to its beneficiaries. Afterwards,
Garcia reported the matter to the MSWDO and to the municipal auditor as per auditing rules.
On August 27, 2001 Alfredo Doller, former member of the Sangguniang Bayan of Leyte, filed the
present complaint against Ysidoro. Nierna Doller, Alfredo's wife and former MSWDO head, testified
that the subject SFP goods were intended for its target beneficiaries, Leyte’s malnourished children.
She also pointed out that the Supplemental Feeding Implementation Guidelines for Local
Government Units governed the distribution of SFP goods.3 Thus, Ysidoro committed technical
malversation when he approved the distribution of SFP goods to the CSAP beneficiaries.
In his defense, Ysidoro claims that the diversion of the subject goods to a project also meant for the
poor of the municipality was valid since they came from the savings of the SFP and the Calamity
Fund. Ysidoro also claims good faith, believing that the municipality’s poor CSAP beneficiaries were
also in urgent need of food. Furthermore, Ysidoro pointed out that the COA Municipal Auditor
conducted a comprehensive audit of their municipality in 2001 and found nothing irregular in its
transactions.
On February 8, 2010 the Sandiganbayan found Ysidoro guilty beyond reasonable doubt of technical
malversation. But, since his action caused no damage or embarrassment to public service, it only
fined him P1,698.00 or 50% of the sum misapplied. The Sandiganbayan held that Ysidoro applied
public property to a pubic purpose other than that for which it has been appropriated by law or
ordinance. On May 12, 2010 the Sandiganbayan denied Ysidoro’s motion for reconsideration. On
June 8, 2010 Ysidoro appealed the Sandiganbayan Decision to this Court.
The Questions Presented
In essence, Ysidoro questions the Sandiganbayan’s finding that he committed technical
malversation. He particularly raises the following questions:
1. Whether or not he approved the diversion of the subject goods to a public purpose
different from their originally intended purpose;
2. Whether or not the goods he approved for diversion were in the nature of savings that
could be used to augment the other authorized expenditures of the municipality;
3. Whether or not his failure to present the municipal auditor can be taken against him; and
4. Whether or not good faith is a valid defense for technical malversation.
The Court’s Rulings
One. The crime of technical malversation as penalized under Article 220 of the Revised Penal
Code4 has three elements: a) that the offender is an accountable public officer; b) that he applies
public funds or property under his administration to some public use; and c) that the public use for
which such funds or property were applied is different from the purpose for which they were
originally appropriated by law or ordinance.5 Ysidoro claims that he could not be held liable for the
offense under its third element because the four sacks of rice and two boxes of sardines he gave the
CSAP beneficiaries were not appropriated by law or ordinance for a specific purpose.
But the evidence shows that on November 8, 2000 the Sangguniang Bayan of Leyte enacted
Resolution 00-133 appropriating the annual general fund for 2001.6 This appropriation was based on
the executive budget7 which allocated P100,000.00 for the SFP and P113,957.64 for the
Comprehensive and Integrated Delivery of Social Services8 which covers the CSAP housing
projects.9 The creation of the two items shows the Sanggunian’s intention to appropriate separate
funds for SFP and the CSAP in the annual budget.
Since the municipality bought the subject goods using SFP funds, then those goods should be used
for SFP’s needs, observing the rules prescribed for identifying the qualified beneficiaries of its
feeding programs. The target clientele of the SFP according to its manual10 are: 1) the moderately
and severely underweight pre-school children aged 36 months to 72 months; and 2) the families of
six members whose total monthly income is P3,675.00 and below.11 This rule provides assurance that
the SFP would cater only to the malnourished among its people who are in urgent need of the
government’s limited resources.
Ysidoro disregarded the guidelines when he approved the distribution of the goods to those
providing free labor for the rebuilding of their own homes. This is technical malversation. If Ysidoro
could not legally distribute the construction materials appropriated for the CSAP housing
beneficiaries to the SFP malnourished clients neither could he distribute the food intended for the
latter to CSAP beneficiaries.
Two. Ysidoro claims that the subject goods already constituted savings of the SFP and that,
therefore, the same could already be diverted to the CSAP beneficiaries. He relies on Abdulla v.
People12 which states that funds classified as savings are not considered appropriated by law or
ordinance and can be used for other public purposes. The Court cannot accept Ysidoro’s argument.
The subject goods could not be regarded as savings. The SFP is a continuing program that ran
throughout the year. Consequently, no one could say in mid-June 2001 that SFP had already
finished its project, leaving funds or goods that it no longer needed. The fact that Polinio had already
distributed the food items needed by the SFP beneficiaries for the second quarter of 2001 does not
mean that the remaining food items in its storeroom constituted unneeded savings. Since the
requirements of hungry mouths are hard to predict to the last sack of rice or can of sardines, the
view that the subject goods were no longer needed for the remainder of the year was quite
premature.
In any case, the Local Government Code provides that an ordinance has to be enacted to validly
apply funds, already appropriated for a determined public purpose, to some other purpose. Thus:
SEC. 336. Use of Appropriated Funds and Savings. – Funds shall be available exclusively for the
specific purpose for which they have been appropriated. No ordinance shall be passed authorizing
any transfer of appropriations from one item to another. However, the local chief executive or the
presiding officer of the sanggunian concerned may, by ordinance, be authorized to augment any
item in the approved annual budget for their respective offices from savings in other items within the
same expense class of their respective appropriations.
The power of the purse is vested in the local legislative body. By requiring an ordinance, the law
gives the Sanggunian the power to determine whether savings have accrued and to authorize the
augmentation of other items on the budget with those savings.
Three. Ysidoro claims that, since the municipal auditor found nothing irregular in the diversion of the
subject goods, such finding should be respected. The SB ruled, however, that since Ysidoro failed to
present the municipal auditor at the trial, the presumption is that his testimony would have been
adverse if produced. Ysidoro argues that this goes against the rule on the presumption of innocence
and the presumption of regularity in the performance of official functions.
Ysidoro may be right in that there is no basis for assuming that had the municipal auditor testified,
his testimony would have been adverse to the mayor. The municipal auditor’s view regarding the
transaction is not conclusive to the case and will not necessarily negate the mayor’s liability if it
happened to be favorable to him. The Court will not, therefore, be drawn into speculations regarding
what the municipal auditor would have said had he appeared and testified.
Four. Ysidoro insists that he acted in good faith since, first, the idea of using the SFP goods for the
CSAP beneficiaries came, not from him, but from Garcia and Polinio; and, second, he consulted the
accounting department if the goods could be distributed to those beneficiaries. Having no criminal
intent, he argues that he cannot be convicted of the crime. 1âwphi1

But criminal intent is not an element of technical malversation. The law punishes the act of
diverting public property earmarked by law or ordinance for a particular public purpose to
another public purpose. The offense is mala prohibita, meaning that the prohibited act is not
inherently immoral but becomes a criminal offense because positive law forbids its
commission based on considerations of public policy, order, and convenience.13 It is the
commission of an act as defined by the law, and not the character or effect thereof, that
determines whether or not the provision has been violated. Hence, malice or criminal intent is
completely irrelevant.14
Dura lex sed lex. Ysidoro’s act, no matter how noble or miniscule the amount diverted, constitutes
the crime of technical malversation. The law and this Court, however, recognize that his offense is
not grave, warranting a mere fine.
WHEREFORE, this Court AFFIRMS in its entirely the assailed Decision of the Sandiganbayan in
Criminal Case 28228 dated February 8, 2010.
SO ORDERED.
ROBERTO A. ABAD
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
DIOSDADO M. PERALTA JOSE PORTUGAL PEREZ*
Associate Justice Associate Justice
JOSE CATRAL MENDOZA
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.
MARIA LOURDES P. A. SERENO
Chief Justice

Footnotes
* Designated Acting Member, per Special Order 1299 dated August 28, 2012.
1
Records, p. 1.
2
Id. at 250.
3
Id. at 260-329.
4
Art. 220. Illegal use of public funds or property. — Any public officer who shall apply any
public fund or property under his administration to any public use other than for which such
fund or property were appropriated by law or ordinance shall suffer the penalty of prision
correccional in its minimum period or a fine ranging from one-half to the total of the sum
misapplied, if by reason of such misapplication, any damages or embarrassment shall have
resulted to the public service. In either case, the offender shall also suffer the penalty of
temporary special disqualification.
If no damage or embarrassment to the public service has resulted, the penalty shall
be a fine from 5 to 50 per cent of the sum misapplied.
5
Parungao v. Sandiganbayan, 274 Phil. 451, 460 (1991).
6
Records, pp. 258-259.
7
SEC. 318. Preparation of the Budget by the Local Chief Executive. – Upon receipt of the
statements of income and expenditures from the treasurer, the budget proposals of the
heads of departments and offices, and the estimates of income and budgetary ceilings from
the local finance committee, the local chief executive shall prepare the executive budget for
the ensuing fiscal year in accordance with the provisions of this Title. The local chief
executive shall submit the said executive budget to the sanggunian concerned not later than
the sixteenth (16th) of October of the current fiscal year. Failure to submit such budget on
the date prescribed herein shall subject the local chief executive to such criminal and
administrative penalties as provided for under this Code and other applicable laws.
(Emphasis supplied)
SEC. 319. Legislative Authorization of the Budget. – On or before the end of the
current fiscal year, the sanggunian concerned shall enact, through an ordinance, the
annual budget of the local government unit for the ensuing fiscal year on the basis of
the estimates of income and expenditures submitted by the local chief executive.
8
Records, p. 254.
9
TSN, May 23, 2006, p. 15 (rollo, pp. 127-128) and TSN, August 2, 2007, pp. 15-16 (rollo, p.
130).
Guidelines on the Management of CRS Supported Supplemental Feeding Program
10

Implemented by the Local Government Units; Sandiganbayan rollo, Vol. I, pp. 260-329.
11
Id. at 263.
12
495 Phil. 70 (2005).
FLORENZ REGALADO, CRIMINAL LAW CONSPECTUS (2003 rev. ed), citing People v.
13

Pavlic, 227 Mich., 563, N.W. 371, 35 ALR.


14
Luciano v. Estrella, 145 Phil. 454, 464-465 (1970).

SECOND DIVISION

[G.R. No. 141066. February 17, 2005]

EVANGELINE LADONGA, petitioner, vs. PEOPLE OF THE


PHILIPPINES, respondent.

DECISION
AUSTRIA-MARTINEZ, J.:

Petitioner Evangeline Ladonga seeks a review of the Decision,[1] dated May 17,
1999, of the Court of Appeals in CA-G.R. CR No. 20443, affirming the Decision dated
August 24, 1996, of the Regional Trial Court (RTC), Branch 3 of Bohol, in Criminal Case
Nos. 7068, 7069 and 7070 convicting her of violation of B.P. Blg. 22, otherwise known
as The Bouncing Checks Law.
The factual background of the case is as follows:
On March 27, 1991, three Informations for violation of B.P. Blg. 22 were filed with
the RTC, docketed as Criminal Case Nos. 7068 - 7070. The Information in Criminal
Case No. 7068 alleges as follows:
That, sometime in May or June 1990, in the City of Tagbilaran, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating, and mutually helping with one another, knowing fully well that they
did not have sufficient funds deposited with the United Coconut Planters Bank
(UCPB), Tagbilaran Branch, did then and there willfully, unlawfully, and feloniously,
draw and issue UCPB Check No. 284743 postdated July 7, 1990 in the amount of
NINE THOUSAND SEVENTY-FIVE PESOS AND FIFTY-FIVE CENTAVOS
(P9,075.55), payable to Alfredo Oculam, and thereafter, without informing the latter
that they did not have sufficient funds deposited with the bank to cover up the amount
of the check, did then and there willfully, unlawfully and feloniously pass on, indorse,
give and deliver the said check to Alfredo Oculam by way of rediscounting of the
aforementioned checks; however, upon presentation of the check to the drawee bank
for encashment, the same was dishonored for the reason that the account of the
accused with the United Coconut Planters Bank, Tagbilaran Branch, had already been
closed, to the damage and prejudice of the said Alfredo Oculam in the aforestated
amount.
Acts committed contrary to the provisions of Batas Pambansa Bilang 22.[2]
The accusatory portions of the Informations in Criminal Case Nos. 7069 and 7070
are similarly worded, except for the allegations concerning the number, date and
amount of each check, that is:
(a) Criminal Case No. 7069 - UCPB Check No. 284744 dated July 22, 1990 in the
amount of P12,730.00;[3]
(b) Criminal Case No. 7070 UCPB Check No. 106136 dated July 22, 1990 in the
amount of P8,496.55.[4]
The cases were consolidated and jointly tried. When arraigned on June 26, 1991,
the two accused pleaded not guilty to the crimes charged.[5]
The prosecution presented as its lone witness complainant Alfredo Oculam. He
testified that: in 1989, spouses Adronico[6] and Evangeline Ladonga became his regular
customers in his pawnshop business in Tagbilaran City, Bohol;[7] sometime in May
1990, the Ladonga spouses obtained a P9,075.55 loan from him, guaranteed by United
Coconut Planters Bank (UCPB) Check No. 284743, post dated to dated July 7, 1990
issued by Adronico;[8] sometime in the last week of April 1990 and during the first week
of May 1990, the Ladonga spouses obtained an additional loan of P12,730.00,
guaranteed by UCPB Check No. 284744, post dated to dated July 26, 1990 issued by
Adronico;[9] between May and June 1990, the Ladonga spouses obtained a third loan in
the amount of P8,496.55, guaranteed by UCPB Check No. 106136, post dated to July
22, 1990 issued by Adronico;[10] the three checks bounced upon presentment for the
reason CLOSED ACCOUNT;[11] when the Ladonga spouses failed to redeem the check,
despite repeated demands, he filed a criminal complaint against them. [12]
While admitting that the checks issued by Adronico bounced because there was no
sufficient deposit or the account was closed, the Ladonga spouses claimed that the
checks were issued only to guarantee the obligation, with an agreement that Oculam
should not encash the checks when they mature; [13] and, that petitioner is not a
signatory of the checks and had no participation in the issuance thereof.[14]
On August 24, 1996, the RTC rendered a joint decision finding the Ladonga
spouses guilty beyond reasonable doubt of violating B.P. Blg. 22, the dispositive portion
of which reads:
Premises considered, this Court hereby renders judgment finding accused Adronico
Ladonga, alias Ronie, and Evangeline Ladonga guilty beyond reasonable doubt in the
aforesaid three (3) criminal cases, for which they stand charged before this Court, and
accordingly, sentences them to imprisonment and fine, as follows:
1. In Criminal Case No. 7068, for (sic) an imprisonment of one (1) year for each of
them, and a fine in the amount of P9,075.55, equivalent to the amount of UCPB
Check No. 284743;
2. In Criminal Case No. 7069, for (sic) an imprisonment for each of them to one (1)
year and a fine of P12, 730.00, equivalent to the amount of UCPB Check No. 284744;
and,
3. In Criminal Case No. 7070, with (sic) an imprisonment of one year for each of
them and a fine of P8,496.55 equivalent to the amount of UCPB Check No. 106136;
4. That both accused are further ordered to jointly and solidarily pay and reimburse
the complainant, Mr. Alfredo Oculam, the sum of P15,000.00 representing actual
expenses incurred in prosecuting the instant cases; P10,000.00 as attorneys fee; and
the amount of P30,302.10 which is the total value of the three (3) subject checks
which bounced; but without subsidiary imprisonment in case of insolvency.
With Costs against the accused.
SO ORDERED.[15]
Adronico applied for probation which was granted.[16] On the other hand, petitioner
brought the case to the Court of Appeals, arguing that the RTC erred in finding her
criminally liable for conspiring with her husband as the principle of conspiracy is
inapplicable to B.P. Blg. 22 which is a special law; moreover, she is not a signatory of
the checks and had no participation in the issuance thereof.[17]
On May 17, 1999, the Court of Appeals affirmed the conviction of petitioner. [18] It
held that the provisions of the penal code were made applicable to special penal laws in
the decisions of this Court in People vs. Parel, [19] U.S. vs. Ponte, [20] and U.S. vs.
Bruhez.[21] It noted that Article 10 of the Revised Penal Code itself provides that its
provisions shall be supplementary to special laws unless the latter provide the contrary.
The Court of Appeals stressed that since B.P. Blg. 22 does not prohibit the applicability
in a suppletory character of the provisions of the Revised Penal Code (RPC), the
principle of conspiracy may be applied to cases involving violations of B.P. Blg. 22.
Lastly, it ruled that the fact that petitioner did not make and issue or sign the checks did
not exculpate her from criminal liability as it is not indispensable that a co-conspirator
takes a direct part in every act and knows the part which everyone performed. The
Court of Appeals underscored that in conspiracy the act of one conspirator could be
held to be the act of the other.
Petitioner sought reconsideration of the decision but the Court of Appeals denied
the same in a Resolution dated November 16, 1999.[22]
Hence, the present petition.
Petitioner presents to the Court the following issues for resolution:
1. WHETHER OR NOT THE PETITIONER WHO WAS NOT THE DRAWER OR
ISSUER OF THE THREE CHECKS THAT BOUNCED BUT HER CO-ACCUSED
HUSBAND UNDER THE LATTERS ACCOUNT COULD BE HELD LIABLE FOR
VIOLATIONS OF BATAS PAMBANSA BILANG 22 AS CONSPIRATOR.
2. ANCILLARY TO THE MAIN ISSUE ARE THE FOLLOWING ISSUES:
A. WHETHER OR NOT CONSPIRACY IS APPLICABLE IN VIOLATIONS
OF BATAS PAMBANSA BILANG 22 BY INVOKING THE LAST SENTENCE OF
ARTICLE 10 OF THE REVISED PENAL CODE WHICH STATES:
Art. 10. Offenses not subject of the provisions of this Code. Offenses which are or in
the future may be punished under special laws are not subject to the provisions of this
Code. This Code shall be supplementary to such laws, unless the latter should
specially provide the contrary.
B. WHETHER OR NOT THE CASES CITED BY THE HONORABLE COURT OF
APPEALS IN AFFIRMING IN TOTO THE CONVICTION OF PETITIONER AS
CONSPIRATOR APPLYING THE SUPPLETORY CHARACTER OF THE
REVISED PENAL CODE TO SPECIAL LAWS LIKE B.P. BLG. 22 IS
APPLICABLE.[23]
Petitioner staunchly insists that she cannot be held criminally liable for violation
of B.P. Blg. 22 because she had no participation in the drawing and issuance of the
three checks subject of the three criminal cases, a fact proven by the checks
themselves. She contends that the Court of Appeals gravely erred in applying the
principle of conspiracy, as defined under the RPC, to violations of B.P. Blg. 22. She
posits that the application of the principle of conspiracy would enlarge the scope of the
statute and include situations not provided for or intended by the lawmakers, such as
penalizing a person, like petitioner, who had no participation in the drawing or issuance
of checks.
The Office of the Solicitor General disagrees with petitioner and echoes the
declaration of the Court of Appeals that some provisions of the Revised Penal Code,
especially with the addition of the second sentence in Article 10, are applicable to
special laws. It submits that B.P. Blg. 22 does not provide any prohibition regarding the
applicability in a suppletory character of the provisions of the Revised Penal Code to it.
Article 10 of the RPC reads as follows:
ART. 10. Offenses not subject to the provisions of this Code. Offenses which are or in
the future may be punishable under special laws are not subject to the provisions of
this Code. This Code shall be supplementary to such laws, unless the latter should
specially provide the contrary.
The article is composed of two clauses. The first provides that offenses which in the
future are made punishable under special laws are not subject to the provisions of the
RPC, while the second makes the RPC supplementary to such laws. While it seems
that the two clauses are contradictory, a sensible interpretation will show that they can
perfectly be reconciled.
The first clause should be understood to mean only that the special penal laws are
controlling with regard to offenses therein specifically punished. Said clause only
restates the elemental rule of statutory construction that special legal provisions prevail
over general ones.[24] Lex specialis derogant generali. In fact, the clause can be
considered as a superfluity, and could have been eliminated altogether. The second
clause contains the soul of the article. The main idea and purpose of the article is
embodied in the provision that the "code shall be supplementary" to special laws, unless
the latter should specifically provide the contrary.
The appellate courts reliance on the cases of People vs. Parel,[25] U.S. vs.
Ponte,[26] and U.S. vs. Bruhez[27] rests on a firm basis. These cases involved the
suppletory application of principles under the then Penal Code to special laws. People
vs. Parel is concerned with the application of Article 22[28] of the Code to violations of
Act No. 3030, the Election Law, with reference to the retroactive effect of penal laws if
they favor the accused. U.S. vs. Ponte involved the application of Article 17[29] of the
same Penal Code, with reference to the participation of principals in the commission of
the crime of misappropriation of public funds as defined and penalized by Act No.
1740. U.S. vs. Bruhez covered Article 45[30] of the same Code, with reference to the
confiscation of the instruments used in violation of Act No. 1461, the Opium Law.
B.P. Blg. 22 does not expressly proscribe the suppletory application of the
provisions of the RPC. Thus, in the absence of contrary provision in B.P. Blg. 22,
the general provisions of the RPC which, by their nature, are necessarily
applicable, may be applied suppletorily. Indeed, in the recent case of Yu vs.
People,[31] the Court applied suppletorily the provisions on subsidiary
imprisonment under Article 39[32] of the RPC to B.P. Blg. 22.
The suppletory application of the principle of conspiracy in this case is analogous to
the application of the provision on principals under Article 17 in U.S. vs. Ponte. For once
conspiracy or action in concert to achieve a criminal design is shown, the act of one is
the act of all the conspirators, and the precise extent or modality of participation of each
of them becomes secondary, since all the conspirators are principals.[33]
All these notwithstanding, the conviction of the petitioner must be set aside.
Article 8 of the RPC provides that a conspiracy exists when two or more persons
come to an agreement concerning the commission of a felony and decide to commit it.
To be held guilty as a co-principal by reason of conspiracy, the accused must be shown
to have performed an overt act in pursuance or furtherance of the complicity. [34] The
overt act or acts of the accused may consist of active participation in the actual
commission of the crime itself or may consist of moral assistance to his co-conspirators
by moving them to execute or implement the criminal plan.[35]
In the present case, the prosecution failed to prove that petitioner performed any
overt act in furtherance of the alleged conspiracy. As testified to by the lone prosecution
witness, complainant Alfredo Oculam, petitioner was merely present when her husband,
Adronico, signed the check subject of Criminal Case No. 7068. [36] With respect to
Criminal Case Nos. 7069-7070, Oculam also did not describe the details of petitioners
participation. He did not specify the nature of petitioners involvement in the commission
of the crime, either by a direct act of participation, a direct inducement of her co-
conspirator, or cooperating in the commission of the offense by another act without
which it would not have been accomplished. Apparently, the only semblance of overt act
that may be attributed to petitioner is that she was present when the first check was
issued. However, this inference cannot be stretched to mean concurrence with the
criminal design.
Conspiracy must be established, not by conjectures, but by positive and conclusive
evidence.[37] Conspiracy transcends mere companionship and mere presence at the
scene of the crime does not in itself amount to conspiracy. [38] Even knowledge,
acquiescence in or agreement to cooperate, is not enough to constitute one as a party
to a conspiracy, absent any active participation in the commission of the crime with a
view to the furtherance of the common design and purpose.[39]
As the Court eloquently pronounced in a case of recent vintage, People vs.
Mandao:[40]
To be sure, conspiracy is not a harmless innuendo to be taken lightly or accepted at
every turn. It is a legal concept that imputes culpability under specific circumstances;
as such, it must be established as clearly as any element of the crime. Evidence to
prove it must be positive and convincing, considering that it is a convenient and
simplistic device by which the accused may be ensnared and kept within the penal
fold.
Criminal liability cannot be based on a general allegation of conspiracy, and a
judgment of conviction must always be founded on the strength of the prosecutions
evidence. The Court ruled thus in People v. Legaspi, from which we quote:
At most, the prosecution, realizing the weakness of its evidence against accused-
appellant Franco, merely relied and pegged the latters criminal liability on its
sweeping theory of conspiracy, which to us, was not attendant in the commission of
the crime.
The rule is firmly entrenched that a judgment of conviction must be predicated on the
strength of the evidence for the prosecution and not on the weakness of the evidence
for the defense. The proof against him must survive the test of reason; the strongest
suspicion must not be permitted to sway judgment. The conscience must be satisfied
that on the defense could be laid the responsibility for the offense charged; that not
only did he perpetrate the act but that it amounted to a crime. What is required then is
moral certainty.
Verily, it is the role of the prosecution to prove the guilt of the appellant beyond
reasonable doubt in order to overcome the constitutional presumption of innocence.
In sum, conviction must rest on hard evidence showing that the accused is guilty
beyond reasonable doubt of the crime charged. In criminal cases, moral certainty --
not mere possibility -- determines the guilt or the innocence of the accused. Even
when the evidence for the defense is weak, the accused must be acquitted when the
prosecution has not proven guilt with the requisite quantum of proof required in all
criminal cases. (Citations omitted)[41]
All told, the prosecution failed to establish the guilt of the petitioner with moral
certainty. Its evidence falls short of the quantum of proof required for conviction.
Accordingly, the constitutional presumption of the petitioners innocence must be upheld
and she must be acquitted.
WHEREFORE, the instant petition is GRANTED. The assailed Decision, dated May
17, 1999, of the Court of Appeals in CA-G.R. CR No. 20443 affirming the Decision,
dated August 24, 1996, of the Regional Trial Court (Branch 3), Bohol, in Criminal Case
Nos. 7068, 7069 and 7070 convicting the petitioner of violation of B.P. Blg. 22 is hereby
REVERSED and SET ASIDE. Petitioner Evangeline Ladonga is ACQUITTED of the
charges against her under B.P. Blg. 22 for failure of the prosecution to prove her guilt
beyond reasonable doubt. No pronouncement as to costs.
SO ORDERED.
Puno, (Chairman), Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.

[1] Penned by Justice Buenaventura J. Guerrero (now retired) and concurred in by Justices Portia Alino-
Hormachuelos and Eloy R. Bello (now retired).
[2] Original Records, pp. 1-2.
[3] Id., p. 3.
[4] Id., p. 5.
[5] Id., pp. 29-31.
[6] Also known as Ronie.
[7] TSN of December 3, 1991, Testimony of Alfredo Oculam, pp. 4-7.
[8] Id., pp. 16-21.
[9] TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 2-3.
[10] TSN of January 28, 1992, Testimony of Alfredo Oculam, pp. 1-2.
[11] TSN of December 3, 1991, Testimony of Alfredo Oculam, p. 19; TSN of December 4, 1991, Testimony
of Alfredo Oculam, pp. 1 and 3; TSN of January 28, 1992, Testimony of Alfredo Oculam, p. 1;
Original Records, p. 128.
[12] TSN of December 4, 1991, Testimony of Alfredo Oculam, pp. 2 and 4; TSN of January 28, 1992,
Testimony of Alfredo Oculam, p. 2; Original Records, p. 125.
[13] TSN of August 23, 1993, Testimony of Evangeline Ladonga, pp. 7-8, 11-12 and 15; TSN of December
20, 1993, Testimony of Adronico Ladonga, p. 18.
[14] TSN of August 23, 1993, Testimony of Evangeline Ladonga, p. 10; TSN of December 20, 1993,
Testimony of Adronico Ladonga, pp. 24-26.
[15] Original Records, p. 124.
[16] Id., p. 126.
[17] Court of Appeals (CA) Rollo, p. 28.
[18] Rollo, p. 133.
[19] No. 18260, January 27, 1923, 44 Phil. 437.
[20] No. 5952, October 24, 1911, 20 Phil. 379.
[21] No. 9268, November 4, 1914, 28 Phil. 305.
[22] Rollo, p. 39.
[23] Rollo, pp. 69-70.
[24] Bayan (Bagong Alyansang Makabayan) vs. Zamora, G.R. No. 138570, October 10, 2000, 342 SCRA
449, 483.
[25] Note No. 19, supra.
[26] Note No. 20, supra.
[27] Note No. 21, supra.
[28] ART. 22. Retroactive effect of penal laws. Penal laws shall have a retroactive effect insofar as they
favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5
of Article 62 of this Code, although at the time of the publication of such laws a final sentence has
been pronounced and the convict is serving the same.
[29] ART. 17. Principals. The following are considered principals:
1. Those who take a direct part in the execution of the act;
2. Those who directly force or induce others to commit it;
3. Those who cooperate in the commission of the offense by another act without which it would not
have been accomplished.
[30] ART. 45. Confiscation and forfeiture of the proceeds or instruments of the crime. Every penalty
imposed for the commission of a felony shall carry with it the forfeiture of the proceeds of the
crime and the instruments or tools with which it was committed.
Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the
Government, unless they be the property of a third person not liable for the offense, but those
articles which are not subject of lawful commerce shall be destroyed.
[31] G.R. No. 134172, September 20, 2004.
[32] ART. 39. Subsidiary penalty. If the convict has no property with which to meet the fine mentioned in
paragraph 3 of the next preceding article, he shall be subject to a subsidiary personal liability at
the rate of one day for each eight pesos, subject to the following rules:
1. If the principal penalty imposed be prision correccional or arresto and fine, he shall remain under
confinement until his fine referred in the preceding paragraph is satisfied, but his subsidiary
imprisonment shall not exceed one-third of the term of the sentence, and in no case shall it
continue for more than one year, and no fraction or part of a day shall be counted against the
prisoner.
2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not exceed
six months, if the culprit shall have been prosecuted for a grave or less grave felony, and shall not
exceed fifteen days, if for a light felony.
3. When the principal penalty imposed is higher than prision correccional no subsidiary
imprisonment shall be imposed upon the culprit.
4. If the principal penalty imposed is not to be executed by confinement in a penal institution, but
such penalty is of fixed duration, the convict, during the period of time established in the
preceding rules, shall continue to suffer the same deprivation as those of which the principal
penalty consists.
5. The subsidiary personal liability which the convict may have suffered by reason of his insolvency
shall not relieve him from the fine in case his financial circumstances should improve.
[33] People vs. Felipe, G.R. No. 142505, December 11, 2003, 418 SCRA 146, 176; People vs. Julianda,
Jr., G.R. No. 128886, November 23, 2001, 370 SCRA 448, 469; People vs. Quinicio, G.R. No.
142430, September 13, 2001, 365 SCRA 252, 266.
[34] People vs. Pickrell, G.R. No. 120409, October 23, 2003, 414 SCRA 19, 33; People vs. Bisda, G.R. No.
140895, July 17, 2003, 406 SCRA 454, 473; People vs. Pagalasan, G.R. Nos. 131926 & 138991,
June 18, 2003, 404 SCRA 275, 291.
[35] People vs. Caballero, G.R. Nos. 149028-30, April 2, 2003, 400 SCRA 424, 437; People vs. Ponce,
G.R. No. 126254, September 29, 2000, 341 SCRA 352, 359-360.
[36] TSN of December 3, 1991, Testimony of Alfredo Oculam, p. 20.
[37] People vs. Tamayo, G.R. No. 138608, September 24, 2002, SCRA 540, 553; People vs. Melencion,
G.R. No. 121902, March 26, 2001, 355 SCRA 113, 123.
[38] People vs. Leao, G.R. No. 138886, October 9, 2001, 366 SCRA 774; People vs. Compo, G.R. No.
112990, May 28, 2001, 358 SCRA 266, 272.
[39] People vs. Natividad, G.R. No. 151072, September 23, 2003, 411 SCRA 587, 595.
[40] People vs. Mandao, G.R. No. 135048, December 3, 2002, 393 SCRA 292.
[41] Id., pp. 304-305.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 174629 February 14, 2008
REPUBLIC OF THE PHILIPPINES, Represented by THE ANTI-MONEY LAUNDERING COUNCIL
(AMLC),petitioner,
vs.
HON. ANTONIO M. EUGENIO, JR., AS PRESIDING JUDGE OF RTC, MANILA, BRANCH 34,
PANTALEON ALVAREZ and LILIA CHENG, respondents.
DECISION
TINGA, J.:
The present petition for certiorari and prohibition under Rule 65 assails the orders and resolutions
issued by two different courts in two different cases. The courts and cases in question are the
Regional Trial Court of Manila, Branch 24, which heard SP Case No. 06-1142001 and the Court of
Appeals, Tenth Division, which heared CA-G.R. SP No. 95198.2 Both cases arose as part of the
aftermath of the ruling of this Court in Agan v. PIATCO3 nullifying the concession agreement
awarded to the Philippine International Airport Terminal Corporation (PIATCO) over the Ninoy
Aquino International Airport – International Passenger Terminal 3 (NAIA 3) Project.
I.
Following the promulgation of Agan, a series of investigations concerning the award of the NAIA 3
contracts to PIATCO were undertaken by the Ombudsman and the Compliance and Investigation
Staff (CIS) of petitioner Anti-Money Laundering Council (AMLC). On 24 May 2005, the Office of the
Solicitor General (OSG) wrote the AMLC requesting the latter’s assistance "in obtaining more
evidence to completely reveal the financial trail of corruption surrounding the [NAIA 3] Project," and
also noting that petitioner Republic of the Philippines was presently defending itself in two
international arbitration cases filed in relation to the NAIA 3 Project.4 The CIS conducted an
intelligence database search on the financial transactions of certain individuals involved in the
award, including respondent Pantaleon Alvarez (Alvarez) who had been the Chairman of the PBAC
Technical Committee, NAIA-IPT3 Project.5 By this time, Alvarez had already been charged by the
Ombudsman with violation of Section 3(j) of R.A. No. 3019.6 The search revealed that Alvarez
maintained eight (8) bank accounts with six (6) different banks.7
On 27 June 2005, the AMLC issued Resolution No. 75, Series of 2005,8 whereby the Council
resolved to authorize the Executive Director of the AMLC "to sign and verify an application to inquire
into and/or examine the [deposits] or investments of Pantaleon Alvarez, Wilfredo Trinidad, Alfredo
Liongson, and Cheng Yong, and their related web of accounts wherever these may be found, as
defined under Rule 10.4 of the Revised Implementing Rules and Regulations;" and to authorize the
AMLC Secretariat "to conduct an inquiry into subject accounts once the Regional Trial Court grants
the application to inquire into and/or examine the bank accounts" of those four individuals.9 The
resolution enumerated the particular bank accounts of Alvarez, Wilfredo Trinidad (Trinidad), Alfredo
Liongson (Liongson) and Cheng Yong which were to be the subject of the inquiry.10 The rationale for
the said resolution was founded on the cited findings of the CIS that amounts were transferred from
a Hong Kong bank account owned by Jetstream Pacific Ltd. Account to bank accounts in the
Philippines maintained by Liongson and Cheng Yong.11 The Resolution also noted that "[b]y
awarding the contract to PIATCO despite its lack of financial capacity, Pantaleon Alvarez caused
undue injury to the government by giving PIATCO unwarranted benefits, advantage, or preference in
the discharge of his official administrative functions through manifest partiality, evident bad faith, or
gross inexcusable negligence, in violation of Section 3(e) of Republic Act No. 3019."12
Under the authority granted by the Resolution, the AMLC filed an application to inquire into or
examine the deposits or investments of Alvarez, Trinidad, Liongson and Cheng Yong before the
RTC of Makati, Branch 138, presided by Judge (now Court of Appeals Justice) Sixto Marella, Jr. The
application was docketed as AMLC No. 05-005.13 The Makati RTC heard the testimony of the Deputy
Director of the AMLC, Richard David C. Funk II, and received the documentary evidence of the
AMLC.14 Thereafter, on 4 July 2005, the Makati RTC rendered an Order (Makati RTC bank inquiry
order) granting the AMLC the authority to inquire and examine the subject bank accounts of Alvarez,
Trinidad, Liongson and Cheng Yong, the trial court being satisfied that there existed "[p]robable
cause [to] believe that the deposits in various bank accounts, details of which appear in paragraph 1
of the Application, are related to the offense of violation of Anti-Graft and Corrupt Practices Act now
the subject of criminal prosecution before the Sandiganbayan as attested to by the Informations,
Exhibits C, D, E, F, and G."15 Pursuant to the Makati RTC bank inquiry order, the CIS proceeded to
inquire and examine the deposits, investments and related web accounts of the four.16
Meanwhile, the Special Prosecutor of the Office of the Ombudsman, Dennis Villa-Ignacio, wrote a
letter dated 2 November 2005, requesting the AMLC to investigate the accounts of Alvarez,
PIATCO, and several other entities involved in the nullified contract. The letter adverted to probable
cause to believe that the bank accounts "were used in the commission of unlawful activities that
were committed" in relation to the criminal cases then pending before the
Sandiganbayan.17 Attached to the letter was a memorandum "on why the investigation of the
[accounts] is necessary in the prosecution of the above criminal cases before the Sandiganbayan."18
In response to the letter of the Special Prosecutor, the AMLC promulgated on 9 December 2005
Resolution No. 121 Series of 2005,19 which authorized the executive director of the AMLC to inquire
into and examine the accounts named in the letter, including one maintained by Alvarez with DBS
Bank and two other accounts in the name of Cheng Yong with Metrobank. The Resolution
characterized the memorandum attached to the Special Prosecutor’s letter as "extensively justif[ying]
the existence of probable cause that the bank accounts of the persons and entities mentioned in the
letter are related to the unlawful activity of violation of Sections 3(g) and 3(e) of Rep. Act No. 3019,
as amended."20
Following the December 2005 AMLC Resolution, the Republic, through the AMLC, filed an
application21 before the Manila RTC to inquire into and/or examine thirteen (13) accounts and two (2)
related web of accounts alleged as having been used to facilitate corruption in the NAIA 3 Project.
Among said accounts were the DBS Bank account of Alvarez and the Metrobank accounts of Cheng
Yong. The case was raffled to Manila RTC, Branch 24, presided by respondent Judge Antonio
Eugenio, Jr., and docketed as SP Case No. 06-114200.
On 12 January 2006, the Manila RTC issued an Order (Manila RTC bank inquiry order) granting
the Ex ParteApplication expressing therein "[that] the allegations in said application to be impressed
with merit, and in conformity with Section 11 of R.A. No. 9160, as amended, otherwise known as the
Anti-Money Laundering Act (AMLA) of 2001 and Rules 11.1 and 11.2 of the Revised Implementing
Rules and Regulations."22 Authority was thus granted to the AMLC to inquire into the bank accounts
listed therein.
On 25 January 2006, Alvarez, through counsel, entered his appearance23 before the Manila RTC in
SP Case No. 06-114200 and filed an Urgent Motion to Stay Enforcement of Order of January 12,
2006.24 Alvarez alleged that he fortuitously learned of the bank inquiry order, which was issued
following an ex parte application, and he argued that nothing in R.A. No. 9160 authorized the AMLC
to seek the authority to inquire into bank accounts ex parte.25 The day after Alvarez filed his motion,
26 January 2006, the Manila RTC issued an Order26 staying the enforcement of its bank inquiry
order and giving the Republic five (5) days to respond to Alvarez’s motion.
The Republic filed an Omnibus Motion for Reconsideration27 of the 26 January 2006 Manila RTC
Order and likewise sought to strike out Alvarez’s motion that led to the issuance of said order. For
his part, Alvarez filed a Reply and Motion to Dismiss28 the application for bank inquiry order. On 2
May 2006, the Manila RTC issued an Omnibus Order29 granting the Republic’s Motion for
Reconsideration, denying Alvarez’s motion to dismiss and reinstating "in full force and effect" the
Order dated 12 January 2006. In the omnibus order, the Manila RTC reiterated that the material
allegations in the application for bank inquiry order filed by the Republic stood as "the probable
cause for the investigation and examination of the bank accounts and investments of the
respondents."30
Alvarez filed on 10 May 2006 an Urgent Motion31 expressing his apprehension that the AMLC would
immediately enforce the omnibus order and would thereby render the motion for reconsideration he
intended to file as moot and academic; thus he sought that the Republic be refrained from enforcing
the omnibus order in the meantime. Acting on this motion, the Manila RTC, on 11 May 2006, issued
an Order32 requiring the OSG to file a comment/opposition and reminding the parties that judgments
and orders become final and executory upon the expiration of fifteen (15) days from receipt thereof,
as it is the period within which a motion for reconsideration could be filed. Alvarez filed his Motion for
Reconsideration33 of the omnibus order on 15 May 2006, but the motion was denied by the Manila
RTC in an Order34 dated 5 July 2006.
On 11 July 2006, Alvarez filed an Urgent Motion and Manifestation35 wherein he manifested having
received reliable information that the AMLC was about to implement the Manila RTC bank inquiry
order even though he was intending to appeal from it. On the premise that only a final and executory
judgment or order could be executed or implemented, Alvarez sought that the AMLC be immediately
ordered to refrain from enforcing the Manila RTC bank inquiry order.
On 12 July 2006, the Manila RTC, acting on Alvarez’s latest motion, issued an Order36 directing the
AMLC "to refrain from enforcing the order dated January 12, 2006 until the expiration of the period to
appeal, without any appeal having been filed." On the same day, Alvarez filed a Notice of
Appeal37 with the Manila RTC.
On 24 July 2006, Alvarez filed an Urgent Ex Parte Motion for Clarification.38 Therein, he alleged
having learned that the AMLC had began to inquire into the bank accounts of the other persons
mentioned in the application for bank inquiry order filed by the Republic.39 Considering that the
Manila RTC bank inquiry order was issued ex parte, without notice to those other persons, Alvarez
prayed that the AMLC be ordered to refrain from inquiring into any of the other bank deposits and
alleged web of accounts enumerated in AMLC’s application with the RTC; and that the AMLC be
directed to refrain from using, disclosing or publishing in any proceeding or venue any information or
document obtained in violation of the 11 May 2006 RTC Order.40
On 25 July 2006, or one day after Alvarez filed his motion, the Manila RTC issued an
Order41 wherein it clarified that "the Ex Parte Order of this Court dated January 12, 2006 can not be
implemented against the deposits or accounts of any of the persons enumerated in the AMLC
Application until the appeal of movant Alvarez is finally resolved, otherwise, the appeal would be
rendered moot and academic or even nugatory."42 In addition, the AMLC was ordered "not to
disclose or publish any information or document found or obtained in [v]iolation of the May 11, 2006
Order of this Court."43 The Manila RTC reasoned that the other persons mentioned in AMLC’s
application were not served with the court’s 12 January 2006 Order. This 25 July 2006 Manila RTC
Order is the first of the four rulings being assailed through this petition.
In response, the Republic filed an Urgent Omnibus Motion for Reconsideration44 dated 27 July 2006,
urging that it be allowed to immediately enforce the bank inquiry order against Alvarez and that
Alvarez’s notice of appeal be expunged from the records since appeal from an order of inquiry is
disallowed under the Anti money Laundering Act (AMLA).
Meanwhile, respondent Lilia Cheng filed with the Court of Appeals a Petition for Certiorari,
Prohibition and Mandamus with Application for TRO and/or Writ of Preliminary Injunction45 dated 10
July 2006, directed against the Republic of the Philippines through the AMLC, Manila RTC Judge
Eugenio, Jr. and Makati RTC Judge Marella, Jr.. She identified herself as the wife of Cheng
Yong46 with whom she jointly owns a conjugal bank account with Citibank that is covered by the
Makati RTC bank inquiry order, and two conjugal bank accounts with Metrobank that are covered by
the Manila RTC bank inquiry order. Lilia Cheng imputed grave abuse of discretion on the part of the
Makati and Manila RTCs in granting AMLC’s ex parte applications for a bank inquiry order, arguing
among others that the ex parte applications violated her constitutional right to due process, that the
bank inquiry order under the AMLA can only be granted in connection with violations of the AMLA
and that the AMLA can not apply to bank accounts opened and transactions entered into prior to the
effectivity of the AMLA or to bank accounts located outside the Philippines.47
On 1 August 2006, the Court of Appeals, acting on Lilia Cheng’s petition, issued a Temporary
Restraining Order48enjoining the Manila and Makati trial courts from implementing, enforcing or
executing the respective bank inquiry orders previously issued, and the AMLC from enforcing and
implementing such orders. On even date, the Manila RTC issued an Order49 resolving to hold in
abeyance the resolution of the urgent omnibus motion for reconsideration then pending before it until
the resolution of Lilia Cheng’s petition for certiorari with the Court of Appeals. The Court of Appeals
Resolution directing the issuance of the temporary restraining order is the second of the four rulings
assailed in the present petition.
The third assailed ruling50 was issued on 15 August 2006 by the Manila RTC, acting on the Urgent
Motion for Clarification51 dated 14 August 2006 filed by Alvarez. It appears that the 1 August 2006
Manila RTC Order had amended its previous 25 July 2006 Order by deleting the last paragraph
which stated that the AMLC "should not disclose or publish any information or document found or
obtained in violation of the May 11, 2006 Order of this Court."52 In this new motion, Alvarez argued
that the deletion of that paragraph would allow the AMLC to implement the bank inquiry orders and
publish whatever information it might obtain thereupon even before the final orders of the Manila
RTC could become final and executory.53 In the 15 August 2006 Order, the Manila RTC reiterated
that the bank inquiry order it had issued could not be implemented or enforced by the AMLC or any
of its representatives until the appeal therefrom was finally resolved and that any enforcement
thereof would be unauthorized.54
The present Consolidated Petition55 for certiorari and prohibition under Rule 65 was filed on 2
October 2006, assailing the two Orders of the Manila RTC dated 25 July and 15 August 2006 and
the Temporary Restraining Order dated 1 August 2006 of the Court of Appeals. Through an Urgent
Manifestation and Motion56 dated 9 October 2006, petitioner informed the Court that on 22
September 2006, the Court of Appeals hearing Lilia Cheng’s petition had granted a writ of
preliminary injunction in her favor.57 Thereafter, petitioner sought as well the nullification of the 22
September 2006 Resolution of the Court of Appeals, thereby constituting the fourth ruling assailed in
the instant petition.58
The Court had initially granted a Temporary Restraining Order59 dated 6 October 2006 and later on a
Supplemental Temporary Restraining Order60 dated 13 October 2006 in petitioner’s favor, enjoining
the implementation of the assailed rulings of the Manila RTC and the Court of Appeals. However, on
respondents’ motion, the Court, through a Resolution61 dated 11 December 2006, suspended the
implementation of the restraining orders it had earlier issued.
Oral arguments were held on 17 January 2007. The Court consolidated the issues for argument as
follows:
1. Did the RTC-Manila, in issuing the Orders dated 25 July 2006 and 15 August 2006 which
deferred the implementation of its Order dated 12 January 2006, and the Court of Appeals, in
issuing its Resolution dated 1 August 2006, which ordered the status quo in relation to the 1
July 2005 Order of the RTC-Makati and the 12 January 2006 Order of the RTC-Manila, both
of which authorized the examination of bank accounts under Section 11 of Rep. Act No.
9160 (AMLA), commit grave abuse of discretion?
(a) Is an application for an order authorizing inquiry into or examination of bank
accounts or investments under Section 11 of the AMLA ex-parte in nature or one
which requires notice and hearing?
(b) What legal procedures and standards should be observed in the conduct of the
proceedings for the issuance of said order?
(c) Is such order susceptible to legal challenges and judicial review?
2. Is it proper for this Court at this time and in this case to inquire into and pass upon the
validity of the 1 July 2005 Order of the RTC-Makati and the 12 January 2006 Order of the
RTC-Manila, considering the pendency of CA G.R. SP No. 95-198 (Lilia Cheng v. Republic)
wherein the validity of both orders was challenged?62
After the oral arguments, the parties were directed to file their respective memoranda, which they
did,63 and the petition was thereafter deemed submitted for resolution.
II.
Petitioner’s general advocacy is that the bank inquiry orders issued by the Manila and Makati RTCs
are valid and immediately enforceable whereas the assailed rulings, which effectively stayed the
enforcement of the Manila and Makati RTCs bank inquiry orders, are sullied with grave abuse of
discretion. These conclusions flow from the posture that a bank inquiry order, issued upon a finding
of probable cause, may be issued ex parte and, once issued, is immediately executory. Petitioner
further argues that the information obtained following the bank inquiry is necessarily beneficial, if not
indispensable, to the AMLC in discharging its awesome responsibility regarding the effective
implementation of the AMLA and that any restraint in the disclosure of such information to
appropriate agencies or other judicial fora would render meaningless the relief supplied by the bank
inquiry order.
Petitioner raises particular arguments questioning Lilia Cheng’s right to seek injunctive relief before
the Court of Appeals, noting that not one of the bank inquiry orders is directed against her. Her
"cryptic assertion" that she is the wife of Cheng Yong cannot, according to petitioner,
"metamorphose into the requisite legal standing to seek redress for an imagined injury or to maintain
an action in behalf of another." In the same breath, petitioner argues that Alvarez cannot assert any
violation of the right to financial privacy in behalf of other persons whose bank accounts are being
inquired into, particularly those other persons named in the Makati RTC bank inquiry order who did
not take any step to oppose such orders before the courts.
Ostensibly, the proximate question before the Court is whether a bank inquiry order issued in
accordance with Section 10 of the AMLA may be stayed by injunction. Yet in arguing that it does,
petitioner relies on what it posits as the final and immediately executory character of the bank inquiry
orders issued by the Manila and Makati RTCs. Implicit in that position is the notion that the inquiry
orders are valid, and such notion is susceptible to review and validation based on what appears on
the face of the orders and the applications which triggered their issuance, as well as the provisions
of the AMLA governing the issuance of such orders. Indeed, to test the viability of petitioner’s
argument, the Court will have to be satisfied that the subject inquiry orders are valid in the first place.
However, even from a cursory examination of the applications for inquiry order and the orders
themselves, it is evident that the orders are not in accordance with law.
III.
A brief overview of the AMLA is called for.
Money laundering has been generally defined by the International Criminal Police Organization
(Interpol) `as "any act or attempted act to conceal or disguise the identity of illegally obtained
proceeds so that they appear to have originated from legitimate sources."64 Even before the passage
of the AMLA, the problem was addressed by the Philippine government through the issuance of
various circulars by the Bangko Sentral ng Pilipinas. Yet ultimately, legislative proscription was
necessary, especially with the inclusion of the Philippines in the Financial Action Task Force’s list of
non-cooperative countries and territories in the fight against money laundering.65 The original AMLA,
Republic Act (R.A.) No. 9160, was passed in 2001. It was amended by R.A. No. 9194 in 2003.
Section 4 of the AMLA states that "[m]oney laundering is a crime whereby the proceeds of an
unlawful activity as [defined in the law] are transacted, thereby making them appear to have
originated from legitimate sources."66 The section further provides the three modes through which
the crime of money laundering is committed. Section 7 creates the AMLC and defines its powers,
which generally relate to the enforcement of the AMLA provisions and the initiation of legal actions
authorized in the AMLA such as civil forefeiture proceedings and complaints for the prosecution of
money laundering offenses.67
In addition to providing for the definition and penalties for the crime of money laundering, the AMLA
also authorizes certain provisional remedies that would aid the AMLC in the enforcement of the
AMLA. These are the "freeze order" authorized under Section 10, and the "bank inquiry order"
authorized under Section 11.
Respondents posit that a bank inquiry order under Section 11 may be obtained only upon the pre-
existence of a money laundering offense case already filed before the courts.68 The conclusion is
based on the phrase "upon order of any competent court in cases of violation of this Act," the word
"cases" generally understood as referring to actual cases pending with the courts.
We are unconvinced by this proposition, and agree instead with the then Solicitor General who
conceded that the use of the phrase "in cases of" was unfortunate, yet submitted that it should be
interpreted to mean "in the event there are violations" of the AMLA, and not that there are already
cases pending in court concerning such violations.69 If the contrary position is adopted, then the bank
inquiry order would be limited in purpose as a tool in aid of litigation of live cases, and wholly inutile
as a means for the government to ascertain whether there is sufficient evidence to sustain an
intended prosecution of the account holder for violation of the AMLA. Should that be the situation, in
all likelihood the AMLC would be virtually deprived of its character as a discovery tool, and thus
would become less circumspect in filing complaints against suspect account holders. After all, under
such set-up the preferred strategy would be to allow or even encourage the indiscriminate filing of
complaints under the AMLA with the hope or expectation that the evidence of money laundering
would somehow surface during the trial. Since the AMLC could not make use of the bank inquiry
order to determine whether there is evidentiary basis to prosecute the suspected malefactors, not
filing any case at all would not be an alternative. Such unwholesome set-up should not come to
pass. Thus Section 11 cannot be interpreted in a way that would emasculate the remedy it has
established and encourage the unfounded initiation of complaints for money laundering.
Still, even if the bank inquiry order may be availed of without need of a pre-existing case under the
AMLA, it does not follow that such order may be availed of ex parte. There are several reasons why
the AMLA does not generally sanction ex parte applications and issuances of the bank inquiry order.
IV.
It is evident that Section 11 does not specifically authorize, as a general rule, the issuance ex
parte of the bank inquiry order. We quote the provision in full:
SEC. 11. Authority to Inquire into Bank Deposits. ― Notwithstanding the provisions of
Republic Act No. 1405, as amended, Republic Act No. 6426, as amended, Republic Act No. 8791,
and other laws, the AMLC may inquire into or examine any particular deposit or investment with any
banking institution or non bank financial institution upon order of any competent court in cases of
violation of this Act, when it has been established that there is probable cause that the deposits or
investments are related to an unlawful activity as defined in Section 3(i) hereof or a money
laundering offense under Section 4 hereof, except that no court order shall be required in cases
involving unlawful activities defined in Sections 3(i)1, (2) and (12).
To ensure compliance with this Act, the Bangko Sentral ng Pilipinas (BSP) may inquire into
or examine any deposit of investment with any banking institution or non bank financial
institution when the examination is made in the course of a periodic or special examination,
in accordance with the rules of examination of the BSP.70 (Emphasis supplied)
Of course, Section 11 also allows the AMLC to inquire into bank accounts without having to obtain a
judicial order in cases where there is probable cause that the deposits or investments are related to
kidnapping for ransom,71certain violations of the Comprehensive Dangerous Drugs Act of
2002,72 hijacking and other violations under R.A. No. 6235, destructive arson and murder. Since
such special circumstances do not apply in this case, there is no need for us to pass comment on
this proviso. Suffice it to say, the proviso contemplates a situation distinct from that which presently
confronts us, and for purposes of the succeeding discussion, our reference to Section 11 of the
AMLA excludes said proviso.
In the instances where a court order is required for the issuance of the bank inquiry order, nothing in
Section 11 specifically authorizes that such court order may be issued ex parte. It might be argued
that this silence does not preclude the ex parte issuance of the bank inquiry order since the same is
not prohibited under Section 11. Yet this argument falls when the immediately preceding provision,
Section 10, is examined.
SEC. 10. Freezing of Monetary Instrument or Property. ― The Court of Appeals,
upon application ex parte by the AMLC and after determination that probable cause exists that any
monetary instrument or property is in any way related to an unlawful activity as defined in Section 3(i)
hereof, may issue a freeze order which shall be effective immediately. The freeze order shall be for
a period of twenty (20) days unless extended by the court.73
Although oriented towards different purposes, the freeze order under Section 10 and the bank
inquiry order under Section 11 are similar in that they are extraordinary provisional reliefs which the
AMLC may avail of to effectively combat and prosecute money laundering offenses. Crucially,
Section 10 uses specific language to authorize an ex parte application for the provisional relief
therein, a circumstance absent in Section 11. If indeed the legislature had intended to authorize ex
parte proceedings for the issuance of the bank inquiry order, then it could have easily expressed
such intent in the law, as it did with the freeze order under Section 10.
Even more tellingly, the current language of Sections 10 and 11 of the AMLA was crafted at the
same time, through the passage of R.A. No. 9194. Prior to the amendatory law, it was the AMLC, not
the Court of Appeals, which had authority to issue a freeze order, whereas a bank inquiry order
always then required, without exception, an order from a competent court.74 It was through the same
enactment that ex parte proceedings were introduced for the first time into the AMLA, in the case of
the freeze order which now can only be issued by the Court of Appeals. It certainly would have been
convenient, through the same amendatory law, to allow a similar ex parte procedure in the case of a
bank inquiry order had Congress been so minded. Yet nothing in the provision itself, or even the
available legislative record, explicitly points to an ex parte judicial procedure in the application for a
bank inquiry order, unlike in the case of the freeze order.
That the AMLA does not contemplate ex parte proceedings in applications for bank inquiry orders is
confirmed by the present implementing rules and regulations of the AMLA, promulgated upon the
passage of R.A. No. 9194. With respect to freeze orders under Section 10, the implementing rules
do expressly provide that the applications for freeze orders be filed ex parte,75 but no similar
clearance is granted in the case of inquiry orders under Section 11.76 These implementing rules were
promulgated by the Bangko Sentral ng Pilipinas, the Insurance Commission and the Securities and
Exchange Commission,77 and if it was the true belief of these institutions that inquiry orders could be
issued ex parte similar to freeze orders, language to that effect would have been incorporated in the
said Rules. This is stressed not because the implementing rules could authorize ex
parte applications for inquiry orders despite the absence of statutory basis, but rather because the
framers of the law had no intention to allow such ex parte applications.
Even the Rules of Procedure adopted by this Court in A.M. No. 05-11-04-SC78 to enforce the
provisions of the AMLA specifically authorize ex parte applications with respect to freeze orders
under Section 1079 but make no similar authorization with respect to bank inquiry orders under
Section 11.
The Court could divine the sense in allowing ex parte proceedings under Section 10 and in
proscribing the same under Section 11. A freeze order under Section 10 on the one hand is aimed at
preserving monetary instruments or property in any way deemed related to unlawful activities as
defined in Section 3(i) of the AMLA. The owner of such monetary instruments or property would thus
be inhibited from utilizing the same for the duration of the freeze order. To make such freeze order
anteceded by a judicial proceeding with notice to the account holder would allow for or lead to the
dissipation of such funds even before the order could be issued.
On the other hand, a bank inquiry order under Section 11 does not necessitate any form of physical
seizure of property of the account holder. What the bank inquiry order authorizes is the examination
of the particular deposits or investments in banking institutions or non-bank financial institutions. The
monetary instruments or property deposited with such banks or financial institutions are not seized in
a physical sense, but are examined on particular details such as the account holder’s record of
deposits and transactions. Unlike the assets subject of the freeze order, the records to be inspected
under a bank inquiry order cannot be physically seized or hidden by the account holder. Said
records are in the possession of the bank and therefore cannot be destroyed at the instance of the
account holder alone as that would require the extraordinary cooperation and devotion of the bank.
Interestingly, petitioner’s memorandum does not attempt to demonstrate before the Court that the
bank inquiry order under Section 11 may be issued ex parte, although the petition itself did devote
some space for that argument. The petition argues that the bank inquiry order is "a special and
peculiar remedy, drastic in its name, and made necessary because of a public necessity… [t]hus, by
its very nature, the application for an order or inquiry must necessarily, be ex parte." This argument
is insufficient justification in light of the clear disinclination of Congress to allow the issuance ex
parte of bank inquiry orders under Section 11, in contrast to the legislature’s clear inclination to allow
the ex parte grant of freeze orders under Section 10.
Without doubt, a requirement that the application for a bank inquiry order be done with notice to the
account holder will alert the latter that there is a plan to inspect his bank account on the belief that
the funds therein are involved in an unlawful activity or money laundering offense.80 Still, the account
holder so alerted will in fact be unable to do anything to conceal or cleanse his bank account records
of suspicious or anomalous transactions, at least not without the whole-hearted cooperation of the
bank, which inherently has no vested interest to aid the account holder in such manner.
V.
The necessary implication of this finding that Section 11 of the AMLA does not generally authorize
the issuance ex parte of the bank inquiry order would be that such orders cannot be issued unless
notice is given to the owners of the account, allowing them the opportunity to contest the issuance of
the order. Without such a consequence, the legislated distinction between ex parte proceedings
under Section 10 and those which are not ex parte under Section 11 would be lost and rendered
useless.
There certainly is fertile ground to contest the issuance of an ex parte order. Section 11 itself
requires that it be established that "there is probable cause that the deposits or investments are
related to unlawful activities," and it obviously is the court which stands as arbiter whether there is
indeed such probable cause. The process of inquiring into the existence of probable cause would
involve the function of determination reposed on the trial court. Determination clearly implies a
function of adjudication on the part of the trial court, and not a mechanical application of a standard
pre-determination by some other body. The word "determination" implies deliberation and is, in
normal legal contemplation, equivalent to "the decision of a court of justice."81
The court receiving the application for inquiry order cannot simply take the AMLC’s word that
probable cause exists that the deposits or investments are related to an unlawful activity. It will have
to exercise its
own determinative function in order to be convinced of such fact. The account holder would be
certainly capable of contesting such probable cause if given the opportunity to be apprised of the
pending application to inquire into his account; hence a notice requirement would not be an empty
spectacle. It may be so that the process of obtaining the inquiry order may become more
cumbersome or prolonged because of the notice requirement, yet we fail to see any unreasonable
burden cast by such circumstance. After all, as earlier stated, requiring notice to the account holder
should not, in any way, compromise the integrity of the bank records subject of the inquiry which
remain in the possession and control of the bank.
Petitioner argues that a bank inquiry order necessitates a finding of probable cause, a characteristic
similar to a search warrant which is applied to and heard ex parte. We have examined the supposed
analogy between a search warrant and a bank inquiry order yet we remain to be unconvinced by
petitioner.
The Constitution and the Rules of Court prescribe particular requirements attaching to search
warrants that are not imposed by the AMLA with respect to bank inquiry orders. A constitutional
warrant requires that the judge personally examine under oath or affirmation the complainant and
the witnesses he may produce,82 such examination being in the form of searching questions and
answers.83 Those are impositions which the legislative did not specifically prescribe as to the bank
inquiry order under the AMLA, and we cannot find sufficient legal basis to apply them to Section 11
of the AMLA. Simply put, a bank inquiry order is not a search warrant or warrant of arrest as it
contemplates a direct object but not the seizure of persons or property.
Even as the Constitution and the Rules of Court impose a high procedural standard for the
determination of probable cause for the issuance of search warrants which Congress chose not to
prescribe for the bank inquiry order under the AMLA, Congress nonetheless disallowed ex
parte applications for the inquiry order. We can discern that in exchange for these procedural
standards normally applied to search warrants, Congress chose instead to legislate a right to notice
and a right to be heard— characteristics of judicial proceedings which are not ex parte.Absent any
demonstrable constitutional infirmity, there is no reason for us to dispute such legislative policy
choices.
VI.
The Court’s construction of Section 11 of the AMLA is undoubtedly influenced by right to privacy
considerations. If sustained, petitioner’s argument that a bank account may be inspected by the
government following an ex parteproceeding about which the depositor would know nothing would
have significant implications on the right to privacy, a right innately cherished by all notwithstanding
the legally recognized exceptions thereto. The notion that the government could be so empowered is
cause for concern of any individual who values the right to privacy which, after all, embodies even
the right to be "let
alone," the most comprehensive of rights and the right most valued by civilized people.84
One might assume that the constitutional dimension of the right to privacy, as applied to bank
deposits, warrants our present inquiry. We decline to do so. Admittedly, that question has proved
controversial in American jurisprudence. Notably, the United States Supreme Court in U.S. v.
Miller85 held that there was no legitimate expectation of privacy as to the bank records of a
depositor.86 Moreover, the text of our Constitution has not bothered with the triviality of allocating
specific rights peculiar to bank deposits.
However, sufficient for our purposes, we can assert there is a right to privacy governing bank
accounts in the Philippines, and that such right finds application to the case at bar. The source of
such right is statutory, expressed as it is in R.A. No. 1405 otherwise known as the Bank Secrecy Act
of 1955. The right to privacy is enshrined in Section 2 of that law, to wit:
SECTION 2. All deposits of whatever nature with banks or banking institutions in the
Philippines including investments in bonds issued by the Government of the
Philippines, its political subdivisions and its instrumentalities, are hereby considered
as of an absolutely confidential natureand may not be examined, inquired or looked into
by any person, government official, bureau or office, except upon written permission of the
depositor, or in cases of impeachment, or upon order of a competent court in cases of
bribery or dereliction of duty of public officials, or in cases where the money deposited or
invested is the subject matter of the litigation. (Emphasis supplied)
Because of the Bank Secrecy Act, the confidentiality of bank deposits remains a basic state policy in
the Philippines.87 Subsequent laws, including the AMLA, may have added exceptions to the Bank
Secrecy Act, yet the secrecy of bank deposits still lies as the general rule. It falls within the zones of
privacy recognized by our laws.88The framers of the 1987 Constitution likewise recognized that bank
accounts are not covered by either the right to information89 under Section 7, Article III or under the
requirement of full public disclosure90 under Section 28, Article II.91 Unless the Bank Secrecy Act is
repealed or
amended, the legal order is obliged to conserve the absolutely confidential nature of Philippine bank
deposits.
Any exception to the rule of absolute confidentiality must be specifically legislated. Section 2 of the
Bank Secrecy Act itself prescribes exceptions whereby these bank accounts may be examined by
"any person, government official, bureau or office"; namely when: (1) upon written permission of the
depositor; (2) in cases of impeachment; (3) the examination of bank accounts is upon order of a
competent court in cases of bribery or dereliction of duty of public officials; and (4) the money
deposited or invested is the subject matter of the litigation. Section 8 of R.A. Act No. 3019, the Anti-
Graft and Corrupt Practices Act, has been recognized by this Court as constituting an additional
exception to the rule of absolute confidentiality,92 and there have been other similar recognitions as
well.93
The AMLA also provides exceptions to the Bank Secrecy Act. Under Section 11, the AMLC may
inquire into a bank account upon order of any competent court in cases of violation of the AMLA, it
having been established that there is probable cause that the deposits or investments are related to
unlawful activities as defined in Section 3(i) of the law, or a money laundering offense under Section
4 thereof. Further, in instances where there is probable cause that the deposits or investments are
related to kidnapping for ransom,94 certain violations of the Comprehensive Dangerous Drugs Act of
2002,95 hijacking and other violations under R.A. No. 6235, destructive arson and murder, then there
is no need for the AMLC to obtain a court order before it could inquire into such accounts.
It cannot be successfully argued the proceedings relating to the bank inquiry order under Section 11
of the AMLA is a "litigation" encompassed in one of the exceptions to the Bank Secrecy Act which is
when "the money deposited or invested is the subject matter of the litigation." The orientation of the
bank inquiry order is simply to serve as a provisional relief or remedy. As earlier stated, the
application for such does not entail a full-blown trial.
Nevertheless, just because the AMLA establishes additional exceptions to the Bank Secrecy Act it
does not mean that the later law has dispensed with the general principle established in the older
law that "[a]ll deposits of whatever nature with banks or banking institutions in the Philippines x x x
are hereby considered as of an absolutely confidential nature."96 Indeed, by force of statute, all bank
deposits are absolutely confidential, and that nature is unaltered even by the legislated exceptions
referred to above. There is disfavor towards construing these exceptions in such a manner that
would authorize unlimited discretion on the part of the government or of any party seeking to enforce
those exceptions and inquire into bank deposits. If there are doubts in upholding the absolutely
confidential nature of bank deposits against affirming the authority to inquire into such accounts,
then such doubts must be resolved in favor of the former. Such a stance would persist unless
Congress passes a law reversing the general state policy of preserving the absolutely confidential
nature of Philippine bank accounts.
The presence of this statutory right to privacy addresses at least one of the arguments raised by
petitioner, that Lilia Cheng had no personality to assail the inquiry orders before the Court of Appeals
because she was not the subject of said orders. AMLC Resolution No. 75, which served as the basis
in the successful application for the Makati inquiry order, expressly adverts to Citibank Account No.
88576248 "owned by Cheng Yong and/or Lilia G. Cheng with Citibank N.A.,"97 whereas Lilia Cheng’s
petition before the Court of Appeals is accompanied by a certification from Metrobank that Account
Nos. 300852436-0 and 700149801-7, both of which are among the subjects of the Manila inquiry
order, are accounts in the name of "Yong Cheng or Lilia Cheng."98 Petitioner does not specifically
deny that Lilia Cheng holds rights of ownership over the three said accounts, laying focus instead on
the fact that she was not named as a subject of either the Makati or Manila RTC inquiry orders. We
are reasonably convinced that Lilia Cheng has sufficiently demonstrated her joint ownership of the
three accounts, and such conclusion leads us to acknowledge that she has the standing to assail via
certiorari the inquiry orders authorizing the examination of her bank accounts as the orders interfere
with her statutory right to maintain the secrecy of said accounts.
While petitioner would premise that the inquiry into Lilia Cheng’s accounts finds root in Section 11 of
the AMLA, it cannot be denied that the authority to inquire under Section 11 is only exceptional in
character, contrary as it is to the general rule preserving the secrecy of bank deposits. Even though
she may not have been the subject of the inquiry orders, her bank accounts nevertheless were, and
she thus has the standing to vindicate the right to secrecy that attaches to said accounts and their
owners. This statutory right to privacy will not prevent the courts from authorizing the inquiry anyway
upon the fulfillment of the requirements set forth under Section 11 of the AMLA or Section 2 of the
Bank Secrecy Act; at the same time, the owner of the accounts have the right to challenge whether
the requirements were indeed complied with.
VII.
There is a final point of concern which needs to be addressed. Lilia Cheng argues that the AMLA,
being a substantive penal statute, has no retroactive effect and the bank inquiry order could not
apply to deposits or investments opened prior to the effectivity of Rep. Act No. 9164, or on 17
October 2001. Thus, she concludes, her subject bank accounts, opened between 1989 to 1990,
could not be the subject of the bank inquiry order lest there be a violation of the constitutional
prohibition against ex post facto laws.
No ex post facto law may be enacted,99 and no law may be construed in such fashion as to
permit a criminal prosecution offensive to the ex post facto clause. As applied to the AMLA, it
is plain that no person may be prosecuted under the penal provisions of the AMLA for acts
committed prior to the enactment of the law on 17 October 2001. As much was understood by
the lawmakers since they deliberated upon the AMLA, and indeed there is no serious dispute on that
point.
Does the proscription against ex post facto laws apply to the interpretation of Section 11, a
provision which does not provide for a penal sanction but which merely authorizes the
inspection of suspect accounts and deposits? The answer is in the affirmative. In this
jurisdiction, we have defined an ex post facto law as one which either:
(1) makes criminal an act done before the passage of the law and which was innocent
when done, and punishes such an act;
(2) aggravates a crime, or makes it greater than it was, when committed;
(3) changes the punishment and inflicts a greater punishment than the law annexed to
the crime when committed;
(4) alters the legal rules of evidence, and authorizes conviction upon less or different
testimony than the law required at the time of the commission of the offense;
(5) assuming to regulate civil rights and remedies only, in effect imposes penalty or
deprivation of a right for something which when done was lawful; and
(6) deprives a person accused of a crime of some lawful protection to which he has
become entitled, such as the protection of a former conviction or acquittal, or a
proclamation of amnesty. (Emphasis supplied)100
Prior to the enactment of the AMLA, the fact that bank accounts or deposits were involved in
activities later on enumerated in Section 3 of the law did not, by itself, remove such accounts from
the shelter of absolute confidentiality. Prior to the AMLA, in order that bank accounts could be
examined, there was need to secure either the written permission of the depositor or a court order
authorizing such examination, assuming that they were involved in cases of bribery or dereliction of
duty of public officials, or in a case where the money deposited or invested was itself the subject
matter of the litigation. The passage of the AMLA stripped another layer off the rule on absolute
confidentiality that provided a measure of lawful protection to the account holder. For that reason,
the application of the bank inquiry order as a means of inquiring into records of transactions entered
into prior to the passage of the AMLA would be constitutionally infirm, offensive as it is to the ex post
facto clause.
Still, we must note that the position submitted by Lilia Cheng is much broader than what we are
willing to affirm. She argues that the proscription against ex post facto laws goes as far as to prohibit
any inquiry into deposits or investments included in bank accounts opened prior to the effectivity of
the AMLA even if the suspect transactions were entered into when the law had already taken effect.
The Court recognizes that if this argument were to be affirmed, it would create a horrible loophole in
the AMLA that would in turn supply the means to fearlessly engage in money laundering in the
Philippines; all that the criminal has to do is to make sure that the money laundering activity is
facilitated through a bank account opened prior to 2001. Lilia Cheng admits that "actual money
launderers could utilize the ex post facto provision of the Constitution as a shield" but that the
remedy lay with Congress to amend the law. We can hardly presume that Congress intended to
enact a self-defeating law in the first place, and the courts are inhibited from such a construction by
the cardinal rule that "a law should be interpreted with a view to upholding rather than destroying
it."101
Besides, nowhere in the legislative record cited by Lilia Cheng does it appear that there was an
unequivocal intent to exempt from the bank inquiry order all bank accounts opened prior to the
passage of the AMLA. There is a cited exchange between Representatives Ronaldo Zamora and
Jaime Lopez where the latter confirmed to the former that "deposits are supposed to be exempted
from scrutiny or monitoring if they are already in place as of the time the law is enacted."102 That
statement does indicate that transactions already in place when the AMLA was passed are indeed
exempt from scrutiny through a bank inquiry order, but it cannot yield any interpretation that records
of transactions undertaken after the enactment of the AMLA are similarly exempt. Due to the
absence of cited authority from the legislative record that unqualifiedly supports respondent Lilia
Cheng’s thesis, there is no cause for us to sustain her interpretation of the AMLA, fatal as it is to
the anima of that law.
IX.
We are well aware that Lilia Cheng’s petition presently pending before the Court of Appeals likewise
assails the validity of the subject bank inquiry orders and precisely seeks the annulment of said
orders. Our current declarations may indeed have the effect of preempting that0 petition. Still, in
order for this Court to rule on the petition at bar which insists on the enforceability of the said bank
inquiry orders, it is necessary for us to consider and rule on the same question which after all is a
pure question of law.
WHEREFORE, the PETITION is DISMISSED. No pronouncement as to costs.
SO ORDERED.
DANTE O. TINGA
Associate Justice

WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson

*MA. ALICIA AUSTRIA MARTINEZ CONCHITA CARPIO MORALES


Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR.


Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson, Second Division

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it
is hereby certified that the conclusions in the above Decision were reached in consultation before
the case was assigned to the writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice

Footnotes
* As replacement of Justice Antonio T. Carpio who inhibited himself per Administrative
Circular No. 84-2007.
1Entitled "In the Matter of the Application for An Order Allowing An Inquiry Into Certain Bank
Accounts or Investments and Related Web of Accounts, The Republic of the Philippines
Represented by the Anti-Money Laundering Council, Applicant."
2Entitled "Lilia Cheng v. Republic of the Philippines represented by the Anti-Money
Laundering Council (AMLC), Hon. Antonio M. Eugenio, As Presiding Judge of the RTC
Manila, Br. 24; Hon. Sixto Marella, Jr., as Presiding Judge of RTC, Makati City, Br. 38; and
John Does."
3 G.R. No. 155001.
4 Rollo, p. 96.
5 Id. at 97.
6Sec. 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:
(j) Knowingly approving or granting any license, permit, privilege or benefit in favor of
any person not qualified for or not legally entitled to such license, permit, privilege or
advantage, or of a mere representative or dummy of one who is not so qualified or
entitled.
7 Rollo, p. 98.
8 Id. at 96-100.
9 Id. at 99-100.
10 Id. at 98.
11 Id.
12 Id. at 99.
13 Id. at 101.
14 Id.
15
Id.
16 Id. at 27.
17 Id. at 104.
18 Id.
19 Id. at 105-107.
20 Id. at 106.
21 See id. at 109-110.
22 Id. at 109.
23 Id. at 111.
24 Id. at 111-117.
25 Id. at 111.
26 Id. at 118.
27 Id. at 119-130.
28 Id. at 131-141.
29 Id. at 142-147.
30 Id. at 146.
31 Id. at 148-149.
32 Id. at 150.
33 Id. at 151-158.
34 Id. at 167.
35 Id. at 168-169.
36 Id. at 171.
37 Id. at 172-173.
38 Id. at 174-175.
39 Id. at 174.
40 Id. at 175.
41 Id. at 68-69.
42 Id. at 69.
43 Id.
44 Id. at 176-186.
45 Id. at 187-249.
46 Id. at 189.
47 Id. at 200-201.
48 Id. at 73-77.
49 Id. at 78.
50 Order dated 15 August 2006, see id. at 71.
51 Id. at 285-287.
52 Id. at 285-286.
53 Id. at 286.
54 Id. at 71.
55 Id. at 6-65.
56 Id. at 299-304.
57 See id. at 310.
58 Id. at 302.
59 Id. at 297-298.
60 Id. at 312-313.
61 Id. at 549-551.
62 Id. at 752-753.
63 See rollo, pp. 786-828; 867-910; 913-936.
64See Funds derived from criminal activities (FOPAC),
(http://www.interpol.int/Public/FinancialCrime/MoneyLaundering/default.asp, last visited 8
December 2007). See also J.M.B. Tirol, The Anti-Money Laundering Law of the Philippines
Annotated (2nd ed., 2007), at 3.
65Tirol, supra note 64, at 4-6. The Financial Action Task Force was established in 1989 by
the so-called Group of 7 countries to formulate and encourage the adoption of international
standards and measures to fight money laundering and related activities. Id. at 28.
66 Republic Act No. 9160 (2002), Sec. 4.
67 Republic Act No. 9160 (2002), Secs. 7(3) and (4).
68 See rollo, pp. 809-810, 932.
69 Id. at 600-601.
70 Republic Act No. 9194 (2003), Sec. 11.
71 Under Article 267 of the Revised Penal Code.
72 Particularly Sections 4, 5, 6, 8, 9, 10, 12, 13, 14, 15, and 16 thereof.
73 Republic Act No. 9194 (2003), Sec. 10.
74Unlike in the present law which authorizes the issuance without need of judicial order when
there is probable cause that the deposits are involved in such specifically enumerated crimes
as kidnapping, hijacking, destructive arson and murder, and violations of some provisions of
the Dangerous Drugs Act of 2002. See Sec. 11, R.A. No. 9194, in connection with Section
3(i).
75"Rule 10.1. When the AMLC may apply for the freezing of any monetary instrument or
property.
(a) after an investigation conducted by the AMLC and upon determination
that probable cause exists that a monetary instrument or property is in any way
related to any unlawful activity as defined under section 3(i). The AMLC may file
an ex-parte application before the the Court of Appeals for the issuance of a
freeze order on any monetary instrument or property subject thereof prior to the
institution or in the course of, the criminal proceedings involving the unlawful activity
to which said monetary instrument or property is any way related." Rule 10.1,
Revised Implementing Rules And Regulations R.A. No. 9160, As Amended By R.A.
No. 9194. (Emphasis supplied)
76 See Rule 11.1, Revised Implementing Rules And Regulations R.A. No. 9160, As Amended
By R.A. No. 9194. "Rule 11.1. Authority to Inquire into Bank Deposits With Court
Order. Notwithstanding the provisions of Republic Act No. 1405, as amended; Republic Act
No. 6426, as amended; Republic Act No. 8791, and other laws, the AMLC may inquire into
or examine any particular deposit or investment with any banking institution or non-bank
financial institution AND THEIR SUBSIDIARIES AND AFFILIATES upon order of any
competent court in cases of violation of this Act, when it has been established that there is
probable cause that the deposits or investments involved are related to an unlawful activity
as defined in Section 3(j) hereof or a money laundering offense under Section 4 hereof;
except in cases as provided under Rule 11.2."
77 Republic Act No. 9160 (See Section 18, AMLA).
78 Effective 15 December 2005.
79
See Title VIII, Sec. 44, Rule Of Procedure In Cases Of Civil Forfeiture, Asset Preservation,
And Freezing Of Monetary Instrument, Property, Or Proceeds Representing, Involving, Or
Relating To An Unlawful Activity Or Money Laundering Offense Under Republic Act No.
9160, As Amended.
80 Republic Act No. 9160 (2002), Sec. 11.
81See J. Tinga, Concurring and Dissenting, Gonzales v. Abaya, G.R. No. 164007, 10 August
2006, 498 SCRA 445, 501; citing 12 Words and Phrases (1954 ed.), p. 478-479 and 1
BOUVIER'S LAW DICTIONARY (8th ed., 1914), p. 858.
82 Const., Art. III, Sec. 2.
83 2000 Rules of Criminal Procedure, Rule 126, Sec. 5.
84Perhaps the prophecy of Justice Brandeis, dissenting in Olmstead v. U.S., 227 U.S. 438,
473 (1928), has come to pass: "[T] ime works changes, brings into existence new conditions
and purposes." Subtler and more far-reaching means of invading privacy have become
available to the Government. Discovery and invention have made it possible for the
Government, by means far more effective than stretching upon the rack, to obtain disclosure
in court of what is whispered in the closet…Moreover, "in the application of a constitution,
our contemplation cannot be only of what has, been but of what may be." The progress of
science in furnishing the Government with means of espionage is not likely to stop with
wiretapping. Ways may someday be developed by which the Government, without removing
papers from secret drawers, can reproduce them in court, and by which it will be enabled to
expose to a jury the most intimate occurrences of the home." Id. at 473-474.
85 425 U.S. 435 (1976).
86"Even if we direct our attention to the original checks and deposit slips, rather than to the
microfilm copies actually viewed and obtained by means of the subpoena, we perceive no
legitimate "expectation of privacy" in their contents. The checks are not confidential
communications but negotiable instruments to be used in commercial transactions. All of the
documents obtained, including financial statements and deposit slips, contain only
information voluntarily conveyed to the banks and exposed to their employees in the ordinary
course of business. The lack of any legitimate expectation of privacy concerning the
information kept in bank records was assumed by Congress in enacting the Bank Secrecy
Act, the expressed purpose of which is to require records to be maintained because they
"have a high degree of usefulness in criminal, tax, and regulatory investigations and
proceedings." Ibid. The passage by the U.S. Congress in 1978 of the Right to Financial
Privacy Act was essentially in reaction to the Miller ruling. Tirol, supra note 64, at 155.
See Tirol, supra note 64, citing Gabriel Singson, Law and Jurisprudence on Secrecy of
87

Bank Deposits, 46 Ateneo Law Journal 670, 682.


88 See Ople v. Torres, 354 Phil. 948 (1998).
89 "The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be provided by
law."
90"Subject to reasonable conditions prescribed by law, the State adopts and implements a
policy of full public disclosure of all its transactions involving public interest."
91Chavez v. PCGG, 360 Phil. 133, 161, citing V Record of the Constitutional Commission 25
(1986).
92 See Phil. National Bank v. Gancayco, et al., 122 Phil. 503, 506-507 (1965).
93Section 8 of R.A. Act No. 6770, or the Ombudsman Act of 1989 empowers the
Ombudsman to "[a dminister oaths, issue subpoena and subpoena duces tecum and take
testimony in any investigation or inquiry, including the power to examine and have access to
bank accounts and records." See Sec. 8, Rep. Act No. 6770 (1989). In Marquez v. Hon.
Desierto, 412 Phil. 387 (2001), the Court, interpreted this provision in line with the
"absolutely confidential" nature of bank deposits under the Bank Secrecy Act, infra, and
mandated: "there must be a pending case before a court of competent jurisdiction[;] the
account must be clearly identified, the inspection limited to the subject matter of the pending
case before the court of competent jurisdiction[;] the bank personnel and the account holder
must be notified to be present during the inspection, and such inspection may cover only the
account identified in the pending case." Id. at 397. With respect to the Ombudsman’s power
of inquiry into bank deposits, Marquez remains good law. See Ejercito v. Sandiganbayan,
G.R. Nos. 157294-95, 30 November 2006, 509 SCRA 190, 224 and 226.
94 Under Article 267 of the Revised Penal Code.
95 Particularly Sections 4, 5, 6, 8, 9, 10, 12, 13, 14, 15, and 16 thereof.
96 Republic Act No. 1405 (1955), Sec. 2.
97 Rollo, p. 98.
98A copy of such certification was attached to Cheng’s Comment as Annex "2". See id. at
421.
99 Const., Art. III, Sec. 22.
In the Matter of the Petition for the Declaration of the Petitioner’s Rights and Duties under
100

Sec. 8 of R.A. No. 6132, 146 Phil. 429, 431-432 (1970). See also Tan v. Barrios, G.R. Nos.
85481-82, 18 October 1990, 703.
101 Interpretate fienda est ut res valeat quam pereat.
102 Rollo, p. 818, citing House Committee Deliberations on 26 September 2001.

FIRST DIVISION
[G.R. No. 125865. January 28, 2000]
JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
YNARES-SANTIAGO, J.:
Petitioner is an economist working with the Asian Development Bank (ADB).
Sometime in 1994, for allegedly uttering defamatory words against fellow ADB
worker Joyce Cabal, he was charged before the Metropolitan Trial Court (MeTC) of
Mandaluyong City with two counts of grave oral defamation docketed as Criminal
Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant issued by
the MeTC. After fixing petitioners bail at P2,400.00 per criminal charge, the MeTC
released him to the custody of the Security Officer of ADB. The next day, the MeTC
judge received an "office of protocol" from the Department of Foreign Affairs (DFA)
stating that petitioner is covered by immunity from legal process under Section 45 of
the Agreement between the ADB and the Philippine Government regarding the
Headquarters of the ADB (hereinafter Agreement) in the country. Based on the said
protocol communication that petitioner is immune from suit, the MeTC judge without
notice to the prosecution dismissed the two criminal cases. The latter filed a motion
for reconsideration which was opposed by the DFA. When its motion was denied, the
prosecution filed a petition for certiorari and mandamus with the Regional Trial Court
(RTC) of Pasig City which set aside the MeTC rulings and ordered the latter court to
enforce the warrant of arrest it earlier issued. After the motion for reconsideration was
denied, petitioner elevated the case to this Court via a petition for review arguing that
he is covered by immunity under the Agreement and that no preliminary investigation
was held before the criminal cases were filed in court.
The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face the communication from the
DFA that petitioner is covered by any immunity. The DFAs determination that a
certain person is covered by immunity is only preliminary which has no binding effect
in courts. In receiving ex-parte the DFAs advice and in motu proprio dismissing the
two criminal cases without notice to the prosecution, the latters right to due process
was violated. It should be noted that due process is a right of the accused as much as it
is of the prosecution. The needed inquiry in what capacity petitioner was acting at the
time of the alleged utterances requires for its resolution evidentiary basis that has yet
to be presented at the proper time. At any rate, it has been ruled that the mere
[1]

invocation of the immunity clause does not ipso facto result in the dropping of the
charges. [2]

Second, under Section 45 of the Agreement which provides:


"Officers and staff of the Bank including for the purpose of this Article
experts and consultants performing missions for the Bank shall enjoy the
following privileges and immunities:
a.).......immunity from legal process with respect to acts performed
by them in their official capacity except when the Bank waives
the immunity."
the immunity mentioned therein is not absolute, but subject to the exception that the
act was done in "official capacity." It is therefore necessary to determine if petitioners
case falls within the ambit of Section 45(a). Thus, the prosecution should have been
given the chance to rebut the DFA protocol and it must be accorded the opportunity to
present its controverting evidence, should it so desire.
Third, slandering a person could not possibly be covered by the immunity
agreement because our laws do not allow the commission of a crime, such as
defamation, in the name of official duty. The imputation of theft is ultra
[3]

vires and cannot be part of official functions. It is well-settled principle of law


that a public official may be liable in his personal private capacity for whatever
damage he may have caused by his act done with malice or in bad faith or
beyond the scope of his authority or jurisdiction. It appears that even the
[4]

governments chief legal counsel, the Solicitor General, does not support the stand
taken by petitioner and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent,
assuming petitioner is such, enjoys immunity from criminal jurisdiction of the
receiving state except in the case of an action relating to any professional or
commercial activity exercised by the diplomatic agent in the receiving state outside
his official functions. As already mentioned above, the commission of a crime is not
[5]

part of official duty.


Finally, on the contention that there was no preliminary investigation conducted,
suffice it to say that preliminary investigation is not a matter of right in cases
cognizable by the MeTC such as the one at bar. Being purely a statutory right,
[6]

preliminary investigation may be invoked only when specifically granted by


law. The rule on criminal procedure is clear that no preliminary investigation is
[7]
required in cases falling within the jurisdiction of the MeTC. Besides, the absence of
[8]

preliminary investigation does not affect the courts jurisdiction nor does it impair the
validity of the information or otherwise render it defective.[9]

WHEREFORE, the petition is DENIED.


SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.2/22/00 9:47 AM

FIRST DIVISION

[G.R. No. 142396. February 11, 2003]

KHOSROW MINUCHER, petitioner, vs. HON. COURT OF APPEALS and


ARTHUR SCALZO, respondents.

DECISION
VITUG, J.:

Sometime in May 1986, an Information for violation of Section 4 of Republic Act No.
6425, otherwise also known as the Dangerous Drugs Act of 1972, was filed against
petitioner Khosrow Minucher and one Abbas Torabian with the Regional Trial Court,
Branch 151, of Pasig City. The criminal charge followed a buy-bust operation conducted
by the Philippine police narcotic agents in the house of Minucher, an Iranian national,
where a quantity of heroin, a prohibited drug, was said to have been seized. The
narcotic agents were accompanied by private respondent Arthur Scalzo who would, in
due time, become one of the principal witnesses for the prosecution. On 08 January
1988, Presiding Judge Eutropio Migrino rendered a decision acquitting the two accused.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional
Trial Court (RTC), Branch 19, of Manila for damages on account of what he claimed to
have been trumped-up charges of drug trafficking made by Arthur Scalzo. The Manila
RTC detailed what it had found to be the facts and circumstances surrounding the case.
"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the
Philippines to study in the University of the Philippines in 1974. In 1976, under the
regime of the Shah of Iran, he was appointed Labor Attach for the Iranian Embassies
in Tokyo, Japan and Manila, Philippines. When the Shah of Iran was deposed by
Ayatollah Khomeini, plaintiff became a refugee of the United Nations and continued
to stay in the Philippines. He headed the Iranian National Resistance Movement in the
Philippines.
He came to know the defendant on May 13, 1986, when the latter was brought to his
house and introduced to him by a certain Jose Iigo, an informer of the Intelligence
Unit of the military. Jose Iigo, on the other hand, was met by plaintiff at the office of
Atty. Crisanto Saruca, a lawyer for several Iranians whom plaintiff assisted as head of
the anti-Khomeini movement in the Philippines.
During his first meeting with the defendant on May 13, 1986, upon the introduction of
Jose Iigo, the defendant expressed his interest in buying caviar. As a matter of fact, he
bought two kilos of caviar from plaintiff and paid P10,000.00 for it. Selling caviar,
aside from that of Persian carpets, pistachio nuts and other Iranian products was his
business after the Khomeini government cut his pension of over $3,000.00 per
month. During their introduction in that meeting, the defendant gave the plaintiff his
calling card, which showed that he is working at the US Embassy in the Philippines,
as a special agent of the Drug Enforcement Administration, Department of Justice, of
the United States, and gave his address as US Embassy, Manila. At the back of the
card appears a telephone number in defendants own handwriting, the number of which
he can also be contacted.
It was also during this first meeting that plaintiff expressed his desire to obtain a US
Visa for his wife and the wife of a countryman named Abbas Torabian. The defendant
told him that he [could] help plaintiff for a fee of $2,000.00 per visa. Their
conversation, however, was more concentrated on politics, carpets and caviar.
Thereafter, the defendant promised to see plaintiff again.
On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at
Mario's Restaurant at Makati. He wanted to buy 200 grams of caviar. Plaintiff brought
the merchandize but for the reason that the defendant was not yet there, he requested
the restaurant people to x x x place the same in the refrigerator. Defendant, however,
came and plaintiff gave him the caviar for which he was paid. Then their conversation
was again focused on politics and business.
On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18
years at Kapitolyo, Pasig. The defendant wanted to buy a pair of carpets which
plaintiff valued at $27,900.00. After some haggling, they agreed at $24,000.00. For
the reason that defendant did not yet have the money, they agreed that defendant
would come back the next day. The following day, at 1:00 p.m., he came back with
his $24,000.00, which he gave to the plaintiff, and the latter, in turn, gave him the pair
of carpets.
At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to
plaintiff's house and directly proceeded to the latter's bedroom, where the latter and
his countryman, Abbas Torabian, were playing chess. Plaintiff opened his safe in the
bedroom and obtained $2,000.00 from it, gave it to the defendant for the latter's fee in
obtaining a visa for plaintiff's wife. The defendant told him that he would be leaving
the Philippines very soon and requested him to come out of the house for a while so
that he can introduce him to his cousin waiting in a cab. Without much ado, and
without putting on his shirt as he was only in his pajama pants, he followed the
defendant where he saw a parked cab opposite the street. To his complete surprise, an
American jumped out of the cab with a drawn high-powered gun. He was in the
company of about 30 to 40 Filipino soldiers with 6 Americans, all armed. He was
handcuffed and after about 20 minutes in the street, he was brought inside the house
by the defendant. He was made to sit down while in handcuffs while the defendant
was inside his bedroom. The defendant came out of the bedroom and out from
defendant's attach case, he took something and placed it on the table in front of the
plaintiff. They also took plaintiff's wife who was at that time at the boutique near his
house and likewise arrested Torabian, who was playing chess with him in the
bedroom and both were handcuffed together. Plaintiff was not told why he was being
handcuffed and why the privacy of his house, especially his bedroom was invaded by
defendant. He was not allowed to use the telephone. In fact, his telephone was
unplugged. He asked for any warrant, but the defendant told him to `shut up. He was
nevertheless told that he would be able to call for his lawyer who can defend him.
The plaintiff took note of the fact that when the defendant invited him to come out to
meet his cousin, his safe was opened where he kept the $24,000.00 the defendant paid
for the carpets and another $8,000.00 which he also placed in the safe together with a
bracelet worth $15,000.00 and a pair of earrings worth $10,000.00. He also
discovered missing upon his release his 8 pieces hand-made Persian carpets, valued at
$65,000.00, a painting he bought for P30,000.00 together with his TV and betamax
sets. He claimed that when he was handcuffed, the defendant took his keys from his
wallet. There was, therefore, nothing left in his house.
That his arrest as a heroin trafficker x x x had been well publicized throughout the
world, in various newspapers, particularly in Australia, America, Central Asia and in
the Philippines. He was identified in the papers as an international drug trafficker. x x
x
In fact, the arrest of defendant and Torabian was likewise on television, not only in
the Philippines, but also in America and in Germany. His friends in said places
informed him that they saw him on TV with said news.
After the arrest made on plaintiff and Torabian, they were brought to Camp Crame
handcuffed together, where they were detained for three days without food and
water."[1]

During the trial, the law firm of Luna, Sison and Manas, filed a special appearance
for Scalzo and moved for extension of time to file an answer pending a supposed advice
from the United States Department of State and Department of Justice on the defenses
to be raised. The trial court granted the motion. On 27 October 1988, Scalzo filed
another special appearance to quash the summons on the ground that he, not being a
resident of the Philippines and the action being one in personam, was beyond the
processes of the court. The motion was denied by the court, in its order of 13 December
1988, holding that the filing by Scalzo of a motion for extension of time to file an answer
to the complaint was a voluntary appearance equivalent to service of summons which
could likewise be construed a waiver of the requirement of formal notice. Scalzo filed a
motion for reconsideration of the court order, contending that a motion for an extension
of time to file an answer was not a voluntary appearance equivalent to service of
summons since it did not seek an affirmative relief. Scalzo argued that in cases
involving the United States government, as well as its agencies and officials, a motion
for extension was peculiarly unavoidable due to the need (1) for both the Department of
State and the Department of Justice to agree on the defenses to be raised and (2) to
refer the case to a Philippine lawyer who would be expected to first review the
case. The court a quo denied the motion for reconsideration in its order of 15 October
1989.
Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R.
No. 17023, assailing the denial. In a decision, dated 06 October 1989, the appellate
court denied the petition and affirmed the ruling of the trial court. Scalzo then elevated
the incident in a petition for review on certiorari, docketed G.R. No. 91173, to this
Court. The petition, however, was denied for its failure to comply with SC Circular No. 1-
88; in any event, the Court added, Scalzo had failed to show that the appellate court
was in error in its questioned judgment.
Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a)
declaring Scalzo in default for his failure to file a responsive pleading (answer) and (b)
setting the case for the reception of evidence. On 12 March 1990, Scalzo filed a motion
to set aside the order of default and to admit his answer to the complaint. Granting the
motion, the trial court set the case for pre-trial. In his answer, Scalzo denied the material
allegations of the complaint and raised the affirmative defenses (a) of Minuchers failure
to state a cause of action in his complaint and (b) that Scalzo had acted in the discharge
of his official duties as being merely an agent of the Drug Enforcement Administration of
the United States Department of Justice. Scalzo interposed a counterclaim of
P100,000.00 to answer for attorneys' fees and expenses of litigation.
Then, on 14 June 1990, after almost two years since the institution of the civil case,
Scalzo filed a motion to dismiss the complaint on the ground that, being a special agent
of the United States Drug Enforcement Administration, he was entitled to diplomatic
immunity. He attached to his motion Diplomatic Note No. 414 of the United States
Embassy, dated 29 May 1990, addressed to the Department of Foreign Affairs of the
Philippines and a Certification, dated 11 June 1990, of Vice Consul Donna Woodward,
certifying that the note is a true and faithful copy of its original. In an order of 25 June
1990, the trial court denied the motion to dismiss.
On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court,
docketed G.R. No. 94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo,
et al.," asking that the complaint in Civil Case No. 88-45691 be ordered dismissed. The
case was referred to the Court of Appeals, there docketed CA-G.R. SP No. 22505, per
this Courts resolution of 07 August 1990. On 31 October 1990, the Court of Appeals
promulgated its decision sustaining the diplomatic immunity of Scalzo and ordering the
dismissal of the complaint against him.Minucher filed a petition for review with this
Court, docketed G.R. No. 97765 and entitled "Khosrow Minucher vs. the Honorable
Court of Appeals, et. al. (cited in 214 SCRA 242), appealing the judgment of the Court
of Appeals. In a decision, dated 24 September 1992, penned by Justice (now Chief
Justice) Hilario Davide, Jr., this Court reversed the decision of the appellate court and
remanded the case to the lower court for trial. The remand was ordered on the theses
(a) that the Court of Appeals erred in granting the motion to dismiss of Scalzo for lack of
jurisdiction over his person without even considering the issue of the authenticity of
Diplomatic Note No. 414 and (b) that the complaint contained sufficient allegations to
the effect that Scalzo committed the imputed acts in his personal capacity and outside
the scope of his official duties and, absent any evidence to the contrary, the issue on
Scalzos diplomatic immunity could not be taken up.
The Manila RTC thus continued with its hearings on the case. On 17 November
1995, the trial court reached a decision; it adjudged:
WHEREFORE, and in view of all the foregoing considerations, judgment is hereby
rendered for the plaintiff, who successfully established his claim by sufficient
evidence, against the defendant in the manner following:
"`Adjudging defendant liable to plaintiff in actual and compensatory damages of
P520,000.00; moral damages in the sum of P10 million; exemplary damages in the
sum of P100,000.00; attorney's fees in the sum of P200,000.00 plus costs.
`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of
the Court on this judgment to answer for the unpaid docket fees considering that the
plaintiff in this case instituted this action as a pauper litigant."
[2]

While the trial court gave credence to the claim of Scalzo and the evidence
presented by him that he was a diplomatic agent entitled to immunity as such, it ruled
that he, nevertheless, should be held accountable for the acts complained of committed
outside his official duties. On appeal, the Court of Appeals reversed the decision of the
trial court and sustained the defense of Scalzo that he was sufficiently clothed with
diplomatic immunity during his term of duty and thereby immune from the criminal and
civil jurisdiction of the Receiving State pursuant to the terms of the Vienna Convention.
Hence, this recourse by Minucher. The instant petition for review raises a two-fold
issue: (1) whether or not the doctrine of conclusiveness of judgment, following the
decision rendered by this Court in G.R. No. 97765, should have precluded the Court of
Appeals from resolving the appeal to it in an entirely different manner, and (2) whether
or not Arthur Scalzo is indeed entitled to diplomatic immunity.
The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would
require 1) the finality of the prior judgment, 2) a valid jurisdiction over the subject matter
and the parties on the part of the court that renders it, 3) a judgment on the merits, and
4) an identity of the parties, subject matter and causes of action. [3] Even while one of the
issues submitted in G.R. No. 97765 - "whether or not public respondent Court of
Appeals erred in ruling that private respondent Scalzo is a diplomat immune from civil
suit conformably with the Vienna Convention on Diplomatic Relations" - is also a pivotal
question raised in the instant petition, the ruling in G.R. No. 97765, however, has not
resolved that point with finality. Indeed, the Court there has made this observation -
"It may be mentioned in this regard that private respondent himself, in his Pre-trial
Brief filed on 13 June 1990, unequivocally states that he would present documentary
evidence consisting of DEA records on his investigation and surveillance of plaintiff
and on his position and duties as DEA special agent in Manila. Having thus reserved
his right to present evidence in support of his position, which is the basis for the
alleged diplomatic immunity, the barren self-serving claim in the belated motion to
dismiss cannot be relied upon for a reasonable, intelligent and fair resolution of the
issue of diplomatic immunity." [4]

Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the
Philippines is a signatory, grants him absolute immunity from suit, describing his
functions as an agent of the United States Drugs Enforcement Agency as conducting
surveillance operations on suspected drug dealers in the Philippines believed to be the
source of prohibited drugs being shipped to the U.S., (and) having ascertained the
target, (he then) would inform the Philippine narcotic agents (to) make the actual
arrest." Scalzo has submitted to the trial court a number of documents -
1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;
2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;
3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;
4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and
5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.
6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department
of Foreign Affairs, dated 27 June 1990 forwarding Embassy Note No. 414 to the
Clerk of Court of RTC Manila, Branch 19 (the trial court);
7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and
8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol,
Department of Foreign Affairs, through Asst. Sec. Emmanuel Fernandez, addressed to
the Chief Justice of this Court.
[5]

The documents, according to Scalzo, would show that: (1) the United States
Embassy accordingly advised the Executive Department of the Philippine Government
that Scalzo was a member of the diplomatic staff of the United States diplomatic
mission from his arrival in the Philippines on 14 October 1985 until his departure on 10
August 1988; (2) that the United States Government was firm from the very beginning in
asserting the diplomatic immunity of Scalzo with respect to the case pursuant to the
provisions of the Vienna Convention on Diplomatic Relations; and (3) that the United
States Embassy repeatedly urged the Department of Foreign Affairs to take appropriate
action to inform the trial court of Scalzos diplomatic immunity. The other documentary
exhibits were presented to indicate that: (1) the Philippine government itself, through its
Executive Department, recognizing and respecting the diplomatic status of Scalzo,
formally advised the Judicial Department of his diplomatic status and his entitlement to
all diplomatic privileges and immunities under the Vienna Convention; and (2) the
Department of Foreign Affairs itself authenticated Diplomatic Note No. 414. Scalzo
additionally presented Exhibits "9" to "13" consisting of his reports of investigation on
the surveillance and subsequent arrest of Minucher, the certification of the Drug
Enforcement Administration of the United States Department of Justice that Scalzo was
a special agent assigned to the Philippines at all times relevant to the complaint, and
the special power of attorney executed by him in favor of his previous counsel [6] to show
(a) that the United States Embassy, affirmed by its Vice Consul, acknowledged Scalzo
to be a member of the diplomatic staff of the United States diplomatic mission from his
arrival in the Philippines on 14 October 1985 until his departure on 10 August 1988, (b)
that, on May 1986, with the cooperation of the Philippine law enforcement officials and
in the exercise of his functions as member of the mission, he investigated Minucher for
alleged trafficking in a prohibited drug, and (c) that the Philippine Department of Foreign
Affairs itself recognized that Scalzo during his tour of duty in the Philippines (14 October
1985 up to 10 August 1988) was listed as being an Assistant Attach of the United States
diplomatic mission and accredited with diplomatic status by the Government of the
Philippines. In his Exhibit 12, Scalzo described the functions of the overseas office of
the United States Drugs Enforcement Agency, i.e., (1) to provide criminal investigative
expertise and assistance to foreign law enforcement agencies on narcotic and drug
control programs upon the request of the host country, 2) to establish and maintain
liaison with the host country and counterpart foreign law enforcement officials, and 3) to
conduct complex criminal investigations involving international criminal conspiracies
which affect the interests of the United States.
The Vienna Convention on Diplomatic Relations was a codification of centuries-old
customary law and, by the time of its ratification on 18 April 1961, its rules of law had
long become stable. Among the city states of ancient Greece, among the peoples of the
Mediterranean before the establishment of the Roman Empire, and among the states of
India, the person of the herald in time of war and the person of the diplomatic envoy in
time of peace were universally held sacrosanct. [7] By the end of the 16th century, when
the earliest treatises on diplomatic law were published, the inviolability of ambassadors
was firmly established as a rule of customary international law. [8] Traditionally, the
exercise of diplomatic intercourse among states was undertaken by the head of state
himself, as being the preeminent embodiment of the state he represented, and the
foreign secretary, the official usually entrusted with the external affairs of the
state. Where a state would wish to have a more prominent diplomatic presence in the
receiving state, it would then send to the latter a diplomatic mission. Conformably with
the Vienna Convention, the functions of the diplomatic mission involve, by and large, the
representation of the interests of the sending state and promoting friendly relations with
the receiving state.[9]
The Convention lists the classes of heads of diplomatic missions to include (a)
ambassadors or nuncios accredited to the heads of state,[10] (b) envoys,[11] ministers
or internuncios accredited to the heads of states; and (c) charges d' affairs[12] accredited
to the ministers of foreign affairs.[13] Comprising the "staff of the (diplomatic) mission" are
the diplomatic staff, the administrative staff and the technical and service staff. Only the
heads of missions, as well as members of the diplomatic staff, excluding the members
of the administrative, technical and service staff of the mission, are accorded diplomatic
rank. Even while the Vienna Convention on Diplomatic Relations provides for immunity
to the members of diplomatic missions, it does so, nevertheless, with an understanding
that the same be restrictively applied. Only "diplomatic agents," under the terms of the
Convention, are vested with blanket diplomatic immunity from civil and criminal
suits. The Convention defines "diplomatic agents" as the heads of missions or members
of the diplomatic staff, thus impliedly withholding the same privileges from all others. It
might bear stressing that even consuls, who represent their respective states in
concerns of commerce and navigation and perform certain administrative and notarial
duties, such as the issuance of passports and visas, authentication of documents, and
administration of oaths, do not ordinarily enjoy the traditional diplomatic immunities and
privileges accorded diplomats, mainly for the reason that they are not charged with the
duty of representing their states in political matters. Indeed, the main yardstick in
ascertaining whether a person is a diplomat entitled to immunity is the
determination of whether or not he performs duties of diplomatic nature.
Scalzo asserted, particularly in his Exhibits 9 to 13, that he was an Assistant Attach
of the United States diplomatic mission and was accredited as such by the Philippine
Government.An attach belongs to a category of officers in the diplomatic establishment
who may be in charge of its cultural, press, administrative or financial affairs. There
could also be a class of attaches belonging to certain ministries or departments of the
government, other than the foreign ministry or department, who are detailed by their
respective ministries or departments with the embassies such as the military, naval, air,
commercial, agricultural, labor, science, and customs attaches, or the like. Attaches
assist a chief of mission in his duties and are administratively under him, but their main
function is to observe, analyze and interpret trends and developments in their respective
fields in the host country and submit reports to their own ministries or departments in
the home government.[14] These officials are not generally regarded as members of the
diplomatic mission, nor are they normally designated as having diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes
Nos. 414, 757 and 791, all issued post litem motam, respectively, on 29 May 1990, 25
October 1991 and 17 November 1992. The presentation did nothing much to alleviate
the Court's initial reservations in G.R. No. 97765, viz:
"While the trial court denied the motion to dismiss, the public respondent gravely
abused its discretion in dismissing Civil Case No. 88-45691 on the basis of an
erroneous assumption that simply because of the diplomatic note, the private
respondent is clothed with diplomatic immunity, thereby divesting the trial court of
jurisdiction over his person.
xxxxxxxxx
And now, to the core issue - the alleged diplomatic immunity of the private
respondent. Setting aside for the moment the issue of authenticity raised by the
petitioner and the doubts that surround such claim, in view of the fact that it took
private respondent one (1) year, eight (8) months and seventeen (17) days from the
time his counsel filed on 12 September 1988 a Special Appearance and Motion asking
for a first extension of time to file the Answer because the Departments of State and
Justice of the United States of America were studying the case for the purpose of
determining his defenses, before he could secure the Diplomatic Note from the US
Embassy in Manila, and even granting for the sake of argument that such note is
authentic, the complaint for damages filed by petitioner cannot be peremptorily
dismissed.
xxxxxxxxx
"There is of course the claim of private respondent that the acts imputed to him were
done in his official capacity. Nothing supports this self-serving claim other than the
so-called Diplomatic Note. x x x. The public respondent then should have sustained
the trial court's denial of the motion to dismiss. Verily, it should have been the most
proper and appropriate recourse. It should not have been overwhelmed by the self-
serving Diplomatic Note whose belated issuance is even suspect and whose
authenticity has not yet been proved. The undue haste with which respondent Court
yielded to the private respondent's claim is arbitrary."
A significant document would appear to be Exhibit No. 08, dated 08 November
1992, issued by the Office of Protocol of the Department of Foreign Affairs and signed
by Emmanuel C. Fernandez, Assistant Secretary, certifying that "the records of the
Department (would) show that Mr. Arthur W. Scalzo, Jr., during his term of office in the
Philippines (from 14 October 1985 up to 10 August 1988) was listed as an Assistant
Attach of the United States diplomatic mission and was, therefore, accredited diplomatic
status by the Government of the Philippines." No certified true copy of such "records,"
the supposed bases for the belated issuance, was presented in evidence.
Concededly, vesting a person with diplomatic immunity is a prerogative of the
executive branch of the government. In World Health Organization vs. Aquino,[15] the
Court has recognized that, in such matters, the hands of the courts are virtually
tied. Amidst apprehensions of indiscriminate and incautious grant of immunity, designed
to gain exemption from the jurisdiction of courts, it should behoove the Philippine
government, specifically its Department of Foreign Affairs, to be most circumspect, that
should particularly be no less than compelling, in its post litem motam issuances. It
might be recalled that the privilege is not an immunity from the observance of the law of
the territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the
exercise of territorial jurisdiction.[16] The government of the United States itself, which
Scalzo claims to be acting for, has formulated its standards for recognition of a
diplomatic agent. The State Department policy is to only concede diplomatic status to
a person who possesses an acknowledged diplomatic title and performs duties of
diplomatic nature.[17] Supplementary criteria for accreditation are the possession of a
valid diplomatic passport or, from States which do not issue such passports, a
diplomatic note formally representing the intention to assign the person to diplomatic
duties, the holding of a non-immigrant visa, being over twenty-one years of age, and
performing diplomatic functions on an essentially full-time basis.[18] Diplomatic missions
are requested to provide the most accurate and descriptive job title to that which
currently applies to the duties performed. The Office of the Protocol would then assign
each individual to the appropriate functional category.[19]
But while the diplomatic immunity of Scalzo might thus remain contentious, it was
sufficiently established that, indeed, he worked for the United States Drug Enforcement
Agency and was tasked to conduct surveillance of suspected drug activities within the
country on the dates pertinent to this case. If it should be ascertained that Arthur Scalzo
was acting well within his assigned functions when he committed the acts alleged in the
complaint, the present controversy could then be resolved under the related doctrine
of State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign state is a
long-standing rule of customary international law then closely identified with the
personal immunity of a foreign sovereign from suit[20] and, with the emergence of
democratic states, made to attach not just to the person of the head of state, or
his representative, but also distinctly to the state itself in its sovereign
capacity.[21] If the acts giving rise to a suit are those of a foreign government done
by its foreign agent, although not necessarily a diplomatic personage, but acting
in his official capacity, the complaint could be barred by the immunity of the
foreign sovereign from suit without its consent. Suing a representative of a state
is believed to be, in effect, suing the state itself. The proscription is not accorded
for the benefit of an individual but for the State, in whose service he is, under the
maxim - par in parem, non habet imperium - that all states are sovereign equals
and cannot assert jurisdiction over one another.[22] The implication, in broad terms, is
that if the judgment against an official would require the state itself to perform an
affirmative act to satisfy the award, such as the appropriation of the amount needed to
pay the damages decreed against him, the suit must be regarded as being against the
state itself, although it has not been formally impleaded.[23]
In United States of America vs. Guinto,[24] involving officers of the United States Air
Force and special officers of the Air Force Office of Special Investigators charged with
the duty of preventing the distribution, possession and use of prohibited drugs, this
Court has ruled -
"While the doctrine (of state immunity) appears to prohibit only suits against the state
without its consent, it is also applicable to complaints filed against officials of the
state for acts allegedly performed by them in the discharge of their duties. x x x. It
cannot for a moment be imagined that they were acting in their private or unofficial
capacity when they apprehended and later testified against the complainant. It follows
that for discharging their duties as agents of the United States, they cannot be directly
impleaded for acts imputable to their principal, which has not given its consent to be
sued. x x x As they have acted on behalf of the government, and within the scope of
their authority, it is that government, and not the petitioners personally, [who were]
responsible for their acts."[25]

This immunity principle, however, has its limitations. Thus, Shauf vs. Court of
Appeals[26] elaborates:
It is a different matter where the public official is made to account in his capacity as
such for acts contrary to law and injurious to the rights of the plaintiff. As was clearly
set forth by Justice Zaldivar in Director of the Bureau of Telecommunications, et al.,
vs. Aligaen, et al. (33 SCRA 368): `Inasmuch as the State authorizes only legal acts by
its officers, unauthorized acts of government officials or officers are not acts of the
State, and an action against the officials or officers by one whose rights have been
invaded or violated by such acts, for the protection of his rights, is not a suit against
the State within the rule of immunity of the State from suit. In the same tenor, it has
been said that an action at law or suit in equity against a State officer or the director of
a State department on the ground that, while claiming to act for the State, he violates
or invades the personal and property rights of the plaintiff, under an unconstitutional
act or under an assumption of authority which he does not have, is not a suit against
the State within the constitutional provision that the State may not be sued without its
consent. The rationale for this ruling is that the doctrine of state immunity cannot be
used as an instrument for perpetrating an injustice.
xxxxxxxxx
(T)he doctrine of immunity from suit will not apply and may not be invoked where
the public official is being sued in his private and personal capacity as an ordinary
citizen. The cloak of protection afforded the officers and agents of the government is
removed the moment they are sued in their individual capacity. This situation usually
arises where the public official acts without authority or in excess of the powers
vested in him. It is a well-settled principle of law that a public official may be liable in
his personal private capacity for whatever damage he may have caused by his act done
with malice and in bad faith or beyond the scope of his authority and jurisdiction. [27]

A foreign agent, operating within a territory, can be cloaked with immunity from suit
but only as long as it can be established that he is acting within the directives of the
sending state.The consent of the host state is an indispensable requirement of basic
courtesy between the two sovereigns. Guinto and Shauf both involve officers and
personnel of the United States, stationed within Philippine territory, under the RP-US
Military Bases Agreement. While evidence is wanting to show any similar agreement
between the governments of the Philippines and of the United States (for the latter to
send its agents and to conduct surveillance and related activities of suspected drug
dealers in the Philippines), the consent or imprimatur of the Philippine government to
the activities of the United States Drug Enforcement Agency, however, can be gleaned
from the facts heretofore elsewhere mentioned. The official exchanges of
communication between agencies of the government of the two countries, certifications
from officials of both the Philippine Department of Foreign Affairs and the United States
Embassy, as well as the participation of members of the Philippine Narcotics Command
in the buy-bust operation conducted at the residence of Minucher at the behest of
Scalzo, may be inadequate to support the "diplomatic status" of the latter but they give
enough indication that the Philippine government has given its imprimatur, if not
consent, to the activities within Philippine territory of agent Scalzo of the United States
Drug Enforcement Agency. The job description of Scalzo has tasked him to conduct
surveillance on suspected drug suppliers and, after having ascertained the target, to
inform local law enforcers who would then be expected to make the arrest. In
conducting surveillance activities on Minucher, later acting as the poseur-buyer during
the buy-bust operation, and then becoming a principal witness in the criminal case
against Minucher, Scalzo hardly can be said to have acted beyond the scope of his
official function or duties.
All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of
the United States Drug Enforcement Agency allowed by the Philippine government to
conduct activities in the country to help contain the problem on the drug traffic, is
entitled to the defense of state immunity from suit.
WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ., concur

[1]
Rollo, pp. 39-42.
[2]
Rollo. p. 51.
[3]
Linzag vs. CA, 291 SCRA 304.
[4]
Minucher vs. Court of Appeals, 214 SCRA 242.
[5]
For documentary Exhibits Nos. 1-8, see Rollo, pp. 143-155.
[6]
For Documentary Exhibits Nos. 9-13, See Rollo, pp. 156-168.
[7]
Eileen Denza, "Diplomatic Law, A Commentary on the Vienna Convention on Diplomatic Relations,"
2nd Edition, Claredon Press, Oxford, 1998, at 210.
[8]
Ibid.
[9]
Article 3 of the Vienna Convention enumerates the functions of the diplomatic mission as
(a) representing the sending State in the receiving State;
(b) protecting in the receiving State the interests of the sending State and of its nationals, within the limits
permitted by international law;
(c) negotiating with the Government of the receiving State;
(d) ascertaining by all lawful means conditions and developments in the receiving State, and reporting
thereon to the Government of the sending State;
(e) promoting friendly relations between the sending State and the receiving State, and developing their
economic, cultural and scientific relations.
[10]
Ambassadors are diplomatic agents of the first class, who deal, as a rule with the Minister of Foreign
Affairs or the Secretary of State, as the case may be. (Melquiades J. Gamboa, "Elements of
Diplomatic and Consular Practice, A Glossary," Central Lawbook Publishing, Co., 1966, p. 19.)
[11]
Envoys are diplomatic agents of the second class. This is the title of the head of legation as
distinguished from an embassy, the head of which is called Ambassador Extraordinary and
Plenipotentiary. Like the Ambassador, the envoy is also accredited to the Head of
State. (Gamboa, p. 190.)
[12]
Charges d' Affairs are either en titre or ad interim. Charges d' Affairs en titre are appointed on a
permanent basis and belong to the fourth class of diplomatic envoys, the other three being
ambassadors, ministers plenipotentiary and envoys extraordinary, and ministers resident. He is
the head of the legation in his own right and is not accredited to the head of State but to the
foreign office. According to Radloric, charges d' affairs are sometimes used to described a person
who has been placed in custody of the archives and other property of a mission in a country with
which formal diplomatic relations are not maintained. Charges d' affairs ad interim, in contrast are
usually those second in command of the diplomatic mission minister, counselor or first secretary,
who are only temporarily in charge of the mission during the absence of the head of the
mission.He is not accredited either to the Head of State or the Foreign Office. (Gamboa, Ibid., pp.
51-52.)
[13]
The classification of diplomatic representatives was considered significant before because direct
communication with the head of state depended on the rank of the diplomat and, moreover, only
powerful states were regarded as entitled to send envoys of the highest rank. At present
however, diplomatic matters are usually discussed not with the head of state but with the foreign
secretary regardless of the diplomat's rank. Moreover, it has become the practice now for even
the smallest and the weakest states to send diplomatic representatives of the highest rank, even
to the major powers. (Cruz, International Law, 1985 Edition, p. 145.)
[14]
Gamboa, supra., pp. 32-33.
[15]
48 SCRA 242.
[16]
J.L. Brierly, "The Law of Nations," Oxford University Press, 6th Edition, 1963, p. 244.
[17]
Denza, supra., at 16.
[18]
Ibid.
[19]
Ibid., at 55.
[20]
Charles G. Fenwick, "International Law," Appleton-Century-Crofts, Inc., New York, 1948, p. 307-308.
[21]
The international law on sovereign immunity of states from suit in the courts of another state has
evolved from national court decisions with good deal of variance in perspectives. Even though
national cases have been the major source of pronouncements on sovereign immunity, it should
be noted that these constitute evidence of customary international law now widely recognized. In
the latter half of the 20th century, a great deal of consensus on what is covered by sovereign
immunity appears to be emerging, i.e., that state immunity covers only acts which deal with the
government functions of a state, and excludes, any of its commercial activities, or activities not
related to "sovereign acts." The consensus involves a more defined differentiation between public
acts (juri imperii) and private acts (jure gestionis). (Gary L. Maris, International Law, An
Introduction, University Press of America, 1984, p. 119; D.W. Grieg, "International Law," London
Butterworths, 1970, p. 221.)
The United States for example, does not claim immunity for its publicly owned or operated merchant
vessels. The Italian courts have rejected claims of immunity from the US Shipping Board,
although a state body, as it could not be identified with the American government on the ground
that undertaking maritime navigation and business as a commercial enterprise do not constitute a
sovereign act. (D.W. Grieg, International Law, London Butterworths, 1970, p. 221.)
[22]
See Schooner Exchange vs. McFaddon, 7 Cranch 116 (1812), cited in Charles G. Fenwick,
"International Law," New York, 3rd Edition (1948), p. 307.
[23]
United States of America, et al. vs. Guinto, etc., et al., G.R. No. 76607, 26 February 1990.
[24]
182 SCRA 644.
[25]
At pp. 653-659.
[26]
191 SCRA 713
[27]
At pp. 727-728.

SECOND DIVISION

ATILANO O. NOLLORA, JR., G.R. No. 191425

Petitioner,

Present:

CARPIO, J., Chairperson,


BRION,
- versus - PERALTA,*

PEREZ, and
MENDOZA,** JJ.

PEOPLE OF THE PHILIPPINES, Promulgated:


Respondent. September 7, 2011
x--------------------------------------------------x
DECISION

CARPIO, J.:

The Case

G.R. No. 191425 is a petition for review1 assailing the Decision2 promulgated on 30
September 2009 as well as the Resolution3 promulgated on 23 February 2010 by the
Court of Appeals (appellate court) in CA-G.R. CR No. 31538. The appellate court
affirmed the 19 November 2007 Decision4 of Branch 215 of the Regional Trial Court
of Quezon City (trial court) in Criminal Case No. Q-04-129031.

The trial court found accused Atilano O. Nollora, Jr. (Nollora) guilty of bigamy under
Article 349 of the Revised Penal Code and sentenced him to suffer imprisonment. Co-
accused Rowena Geraldino (Geraldino) was acquitted for the prosecutions failure to
prove her guilt beyond reasonable doubt.

The Facts

The appellate court recited the facts as follows:

On August 24, 2004, Assistant City Prosecutor Raymond Jonathan B. Lledo filed an
Information against Atilano O. Nollora, Jr. (Nollora) and Rowena P. Geraldino (Geraldino) for
the crime of Bigamy. The accusatory portion of the Information reads:

That on or about the 8th day of December 2001 in Quezon City, Philippines, the above-
named accused ATILANO O. NOLLORA, JR., being then legally married to one
JESUSA PINAT NOLLORA, and as said marriage has not been legally dissolved and
still subsisting, did then and there willfully, unlawfully and feloniously contract a
subsequent or second marriage with her [sic] co-accused ROWENA P. GERALDINO,
who knowingly consented and agreed to be married to her co-accused ATILANO O.
NOLLORA, JR. knowing him to be a married man, to the damage and prejudice of the
said offended party JESUSA PINAT NOLLORA.

Upon his arraignment on April 18, 2005, accused Nollora assisted by counsel, refused to enter
his plea. Hence, a plea of not guilty was entered by the Court for him. Accused Geraldino, on the
other hand, entered a plea of not guilty when arraigned on June 14, 2005. On even date, pre-trial
conference was held and both the prosecution and defense entered the following stipulation of
facts:

1. the validity of the first marriage between Atilano O. Nollora, Jr.


and Jesusa Pinat Nollora solemnized on April 6, 1999 at Sapang Palay, San Jose del
Monte;
2. that Atilano O. Nollora, Jr. contracted the second marriage with Rowena
P. Geraldino on December 8, 2001 in Quezon City;

3. that in the Counter-Affidavit of Atilano O. Nollora, Jr., he admitted that he contracted


the second marriage to Rowena P. Geraldino;

4. that Rowena P. Geraldino attached to her Counter-Affidavit the Certificate of Marriage


with Atilano O. Nollora, Jr. dated December 8, 2001;

5. the fact of marriage of Rowena P. Geraldino with Atilano O. Nollora, Jr. as admitted in
her Counter-Affidavit.

The only issue thus proffered by the prosecution for the RTCs resolution is whether or not the
second marriage is bigamous. Afterwards, pre-trial conference was terminated and the case was
set for initial hearing. Thereafter, trial ensued.

Evidence for the Prosecution

As culled from the herein assailed Decision, the respective testimonies of prosecution witnesses
were as follows:

xxx (W)itness Jesusa Pinat Nollora xxx testified that she and accused Atilano O. Nollora,
Jr. met in Saudi Arabia while she was working there as a Staff Midwife in
King Abdulah Naval Base Hospital. Atilano O. Nollora, Jr. courted her and on April 6,
1999, they got married at the [IE]MELIF Chruch [sic] in Sapang Palay, San Jose del
Monte, Bulacan (Exhibit A). While working in said hospital, she heard rumors that her
husband has another wife and because of anxiety and emotional stress, she left Saudi
Arabia and returned to the Philippines (TSN, October 4, 2005, page 10). Upon arrival in
the Philippines, the private complainant learned that indeed, Atilano O. Nollora, Jr.
contracted a second marriage with co-accused Rowena P. Geraldino on December 8,
2001 (Exhibit B) when she secured a certification as to the civil status
of Atilano O. Nollora, Jr. (Exhibit C) from the National Statistics Office (NSO) sometime
in November 2003.
Upon learning this information, the private complainant confronted Rowena
P. Geraldino at the latters workplace in CBW, FTI, Taguig and asked her if she knew of
the first marriage between complainant and Atilano O. Nollora, Jr. to which Rowena
P. Geraldino allegedly affirmed and despite this knowledge, she allegedly still
married Atilano O. Nollora, Jr. because she loves him so much and because they were
neighbors and childhood friends. Private complainant also knew that Rowena
P. Geraldino knew of her marriage with Atilano O. Nollora, Jr., because when she
(private complainant) was brought by Atilano O. Nollora, Jr. at the latters residence
in Taguig, Metro Manila and introduced her to Atilano O. Nollora, Jr.s parents, Rowena
P. Geraldino was there in the house together with a friend and she heard everything that
they were talking about.

Because of this case, private complainant was not able to return to Saudi Arabia to work
as a Staff Midwife thereby losing income opportunity in the amount of P34,000.00 a
month, more or less. When asked about the moral damages she suffered, she declared that
what happened to her was a tragedy and she had entertained [thoughts] of committing
suicide. She added that because of what happened to her, her mother died and she almost
got raped when Atilano O. Nollora, Jr. left her alone in their residence in Saudi Arabia.
However, she declared that money is not enough to assuage her sufferings. Instead, she
just asked for the return of her money in the amount of P50,000.00 (TSN, July 26, 2005,
pages 4-14).

Prosecution witness Ruth Santos testified that she knew of the marriage between the
private complainant and Atilano O. Nollora, Jr., because she was one of the sponsors in
said wedding. Sometime in November 2003, she was asked by the private complainant to
accompany the latter to the workplace of Rowena P. Geraldino in
FTI, Taguig, Metro Manila. She declared that the private complainant and Rowena
P. Geraldino had a confrontation and she heard that Rowena P. Geraldino admitted that
she (Rowena) knew of the first marriage of Atilano O. Nollora, Jr. and the private
complainant but she still went on to marry Atilano O. Nollora, Jr. because she loves him
very much (TSN, October 24, 2005, pages 3-5).

Evidence for the Defense

The defenses version of facts, as summarized in the herein assailed Decision, is as follows:

Accused Atilano O. Nollora, Jr. admitted having contracted two (2) marriages, the first
with private complainant Jesusa Pinat and the second with Rowena P. Geraldino. He,
however, claimed that he was a Muslim convert way back on January 10, 1992, even
before he contracted the first marriage with the private complainant. As a
[M]uslim convert, he is allegedly entitled to marry four (4) wives as allowed under the
Muslim or Islam belief.
To prove that he is a Muslim convert even prior to his marriage to the private
complainant, Atilano O. Nollora, Jr. presented a Certificate of Conversion dated August
2, 2004 issued by one Hadji Abdul Kajar Madueo and approved by one Khad Ibrahim
A. Alyamin wherein it is stated that Atilano O. Nollora, Jr. allegedly converted as a
Muslim since January 19, 1992 (Exhibit 2, 3 and 4). Aside from said certificate, he also
presented a Pledge of Conversion dated January 10, 1992 issued by the
same Hadji Abdul Kajar Madueo and approved by one KhadIbrahim A. Alyamin (Exhibit
7).

He claimed that the private complaint knew that he was a Muslim convert prior to their
marriage because she [sic] told this fact when he was courting her in Saudi Arabia and
the reason why said private complainant filed the instant case was due to hatred having
learned of his second marriage with Rowena P. Geraldino. She [sic] further testified that
Rowena P. Geraldinowas not aware of his first marriage with the private complainant and
he did not tell her this fact because Rowena P. Geraldino is a Catholic and he does not
want to lose her if she learns of his first marriage.

He explained that in his Marriage Contract with Jesusa Pinat, it is indicated that he was a
Catholic Pentecostal but that he was not aware why it was placed as such on said
contract. In his Marriage Contract with Rowena P. Geraldino, the religion Catholic was
also indicated because he was keeping as a secret his being a Muslim since the society
does not approve of marrying a Muslim. He also indicated that he was single despite his
first marriage to keep said first marriage a secret (TSN, January 30, 2006, pages 2-13).

Defense witness Hadji Abdul Qasar Madueo testified that he is the founder and president
of Balik Islam Tableegh Foundation of the Philippines and as such president, he has the
power and authority to convert any applicant to the Muslim religion. He alleged that
sometime in 1992, he met accused Atilano O. Nollora, Jr. in Mabini (Manila) who was
then going abroad. AtilanoO. Nollora, Jr. applied to become a Muslim (Exhibit 14) and
after receiving the application, said accused was indoctrinated regarding his obligations
as a Muslim. On January 10, 1992, Atilano O. Nollora, Jr. embraced the Muslim faith. He
was then directed to report every Sunday to monitor his development.

In the year 2004, Atilano O. Nollora, Jr. visited him and asked for a certification because
of the filing of the instant case. On October 2, 2004, he issued a Certificate of Conversion
wherein it is stated that Atilano O. Nollora, Jr. is a Muslim convert since January 10,
1992. Apart from the above-mentioned document, their Imam also issued a Pledge of
Conversion (Exhibit 7). He declared that a Muslim convert could marry more than one
according to the Holy Koran. However, before marrying his second, third and fourth
wives, it is required that the consent of the first Muslim wife be secured. Thus, if the first
wife is not a Muslim, there is no necessity to secure her consent (TSN, October 9, 2006,
pages 2-12).

During his cross-examinations, he declared that if a Muslim convert gets married not in
accordance with the Muslim faith, the same is contrary to the teachings of the Muslim
faith. A Muslim also can marry up to four times but he should be able to treat them
equally. He claimed that he was not aware of the first marriage but was aware of the
second. Since his second marriage with Rowena P. Geraldino was not in accordance with
the Muslim faith, he advised Atilano O. Nollora, Jr. to re-marry Rowena P. Geraldino in
accordance with Muslim marriage celebration, otherwise, he will not be considered as a
true Muslim (TSN, June 25, 2007, pages 3-7).

Accused Rowena P. Geraldino alleged that she was only a victim in this incident of
bigamous marriage. She claimed that she does not know the private
complainant Jesusa Pinat Nolloraand only came to know her when this case was filed.
She insists that she is the one lawfully married to Atilano O. Nollora, Jr., having been
married to the latter since December 8, 2001. Upon learning that Atilano O. Nollora, Jr.
contracted a first marriage with the private complainant, she confronted the former who
admitted the said marriage. Prior to their marriage, she asked Atilano O. Nollora, Jr. if he
was single and the latter responded that he was single. She also knew that her husband
was a Catholic prior to their marriage but after she learned of the first marriage of her
husband, she learned that he is a Muslim convert. She also claimed that after learning that
her husband was a Muslim convert, she and Atilano O. Nollora, Jr., also got married in
accordance with the Muslim rites. She also belied the allegations of the private
complainant that she was sought by the private complainant and that they had a
confrontation where she admitted that she knew that Atilano O. Nollora, Jr. was married
to the private complainant and despite this knowledge, she went on to marry him because
she loved him very much. She insisted that she only came to know the private
complainant when she (private complainant) filed this case (TSN, August 14, 2007, pages
2-8).5

The Trial Courts Ruling

In its Decision6 dated 19 November 2007, the trial court convicted Nollora and
acquitted Geraldino.
The trial court stated that there are only two exceptions to prosecution for bigamy:
Article 417 of the Family Code, or Executive Order No. 209, and Article 1808 of the
Code of Muslim Personal Laws of the Philippines, or Presidential Decree No. 1083.
The trial court also cited Article 27 of the Code of Muslim Personal Laws of the
Philippines, which provides the qualifications for allowing Muslim men to have more
than one wife: [N]o Muslim male can have more than one wife unless he can deal
with them in equal companionship and just treatment as enjoined by Islamic Law and
only in exceptional cases.

In convicting Nollora, the trial courts Decision further stated thus:

The principle in Islam is that monogamy is the general rule and polygamy is allowed only to
meet urgent needs. Only with the permission of the court can a Muslim be permitted to have a
second wife subject to certain requirements. This is because having plurality of wives is merely
tolerated, not encouraged, under certain circumstances (Muslim Law on Personal Status in the
Philippines by Amer M. Bara-acal and Abdulmajid J. Astir, 1998 First Edition, Pages 64-65).
Arbitration is necessary. Any Muslim husband desiring to contract subsequent marriages, before
so doing, shall notify the Sharia Circuit Court of the place where his family resides. The clerk of
court shall serve a copy thereof to the wife or wives. Should any of them objects [sic]; an Agama
Arbitration Council shall be constituted. If said council fails to secure the wifes consent to the
proposed marriage, the Court shall, subject to Article 27, decide whether on [sic] not to sustain
her objection (Art. 162, Muslim Personal Laws of the Philippines).

Accused Atilano Nollora, Jr., in marrying his second wife, co-accused Rowena
P. Geraldino, did not comply with the above-mentioned provision of the law. In fact, he did not
even declare that he was a Muslim convert in both marriages, indicating his criminal intent. In
his converting to the Muslim faith, said accused entertained the mistaken belief that he can just
marry anybody again after marrying the private complainant. What is clear, therefore, is [that] a
Muslim is not given an unbridled right to just marry anybody the second, third or fourth time.
There are requirements that the Sharia law imposes, that is, he should have notified
the Sharia Court where his family resides so that copy of said notice should be furnished to the
first wife. The argument that notice to the first wife is not required since she is not a Muslim is of
no moment. This obligation to notify the said court rests upon accused Atilano Nollora, Jr. It is
not for him to interpret the Sharia law. It is the Sharia Court that has this authority.

In an apparent attempt to escape criminal liability, the accused recelebrated their marriage in
accordance with the Muslim rites. However, this can no longer cure the criminal liability that has
already been violated.

The Court, however, finds criminal liability on the person of accused Atilano Nollora, Jr., only.
There is no sufficient evidence that would pin accused Rowena P. Geraldino down. The evidence
presented by the prosecution against her is the allegation that she knew of the first marriage
between private complainant and Atilano Nollora, Jr., is insufficient[,] being open to several
interpretations. Private complainant alleged that when she was brought by Atilano Nollora, Jr., to
the latters house in Taguig, Metro Manila, Rowena P. Geraldino was there standing near the door
and heard their conversation. From this incident, private complainant concluded that said
Rowena P. Geraldino was aware that she and Atilano Nollora, Jr., were married. This conclusion
is obviously misplaced since it could not be reasonably presumed that Rowena
P. Geraldino understands what was going on between her and Atilano Nollora, Jr. It is axiomatic
that (E)verycircumstance favoring accuseds innocence must be taken into account, proof against
him must survive the test of reason and the strongest suspicion must not be permitted to sway
judgment (People vs. Austria, 195 SCRA 700). This Court, therefore, has to acquit Rowena
P. Geraldino for failure of the prosecution to prove her guilt beyond reasonable doubt.

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


a) Finding accused ATILANO O. NOLLORA, JR. guilty beyond reasonable doubt of the crime
of Bigamy punishable under Article 349 of the Revised Penal Code. This court hereby renders
judgment imposing upon him a prison term of two (2) years, four (4) months and one (1) day
of prision correccional, as minimum of his indeterminate sentence, to eight (8) years and one (1)
day of prision mayor, as maximum, plus accessory penalties provided by law.

b) Acquitting accused ROWENA P. GERALDINO of the crime of Bigamy for failure of the
prosecution to prove her guilt beyond reasonable doubt.

Costs against accused Atilano O. Nollora, Jr.

SO ORDERED.9

Nollora filed a notice of appeal and moved for the allowance of his temporary liberty
under the same bail bond pending appeal. The trial court granted Nolloras motion.

Nollora filed a brief with the appellate court and assigned only one error of the trial
court:

The trial court gravely erred in finding the accused-appellant guilty of the crime charged despite
the prosecutions failure to establish his guilt beyond reasonable doubt.10

The Appellate Courts Ruling


On 30 September 2009, the appellate court dismissed Nolloras appeal and affirmed
the trial courts decision.11

The appellate court rejected Nolloras defense that his second marriage
to Geraldino was in lawful exercise of his Islamic religion and was allowed by the
Quran. The appellate court denied Nolloras invocation of his religious beliefs and
practices to the prejudice of the non-Muslim women who married him pursuant to
Philippine civil laws. Nolloras two marriages were not conducted in accordance with
the Code of Muslim Personal Laws, hence the Family Code of the Philippines should
apply. Nolloras claim of religious freedom will not immobilize the State and render it
impotent in protecting the general welfare.

In a Resolution12 dated 23 February 2010, the appellate court denied Nolloras motion
for reconsideration. The allegations in the motion for reconsideration were a mere
rehash of Nolloras earlier arguments, and there was no reason for the appellate court
to modify its 30 September 2009 Decision.

Nollora filed the present petition for review before this Court on 6 April 2010.

The Issue

The issue in this case is whether Nollora is guilty beyond reasonable doubt of the
crime of bigamy.

The Courts Ruling

Nolloras petition has no merit. We affirm the rulings of the appellate court and of the
trial court.

Elements of Bigamy
Article 349 of the Revised Penal Code provides:

Art. 349. Bigamy. ‒ The penalty of prision mayor shall be imposed upon any person who shall
contract a second or subsequent marriage before the former marriage has been legally dissolved,
or before the absent spouse has been declared presumptively dead by means of a judgment
rendered in the proper proceedings.

The elements of the crime of bigamy are:

1. That the offender has been legally married.


2. That the marriage has not been legally dissolved or, in case his or her spouse is absent,
the absent spouse could not yet be presumed dead according to the Civil Code.
3. That he contracts a second or subsequent marriage.
4. That the second or subsequent marriage has all the essential requisites for validity.13

The circumstances in the present case satisfy all the elements of bigamy.
(1) Nollora is legally married to Pinat;14 (2) Nollora and Pinats marriage has not been
legally dissolved prior to the date of the second marriage; (3) Nollora admitted the
existence of his second marriage to Geraldino;15 and
(4) Nollora and Geraldinos marriage has all the essential requisites for validity except
for the lack of capacity of Nollora due to his prior marriage.16

The marriage certificate17 of Nollora and Pinats marriage states


that Nollora and Pinat were married at Sapang Palay IEMELIF Church, Sapang Palay,
San Jose del Monte, Bulacan on 6 April 1999. Rev. Jonathan De Mesa, Minister of the
IEMELIF Church officiated the ceremony. The marriage
certificate18 of Nollora and Geraldinos marriage states
that Nollora and Geraldino were married at Maxs Restaurant, Quezon Avenue,
Quezon City, Metro Manila on 8 December 2001. Rev. Honorato D.
Santos officiated the ceremony.

A certification dated 4 November 2003 from the Office of the Civil Registrar General
reads:
We certify that ATILANO JR O. NOLLORA who is alleged to have been born on February 22,
1968 from ATILANO M. NOLLORA SR and FLAVIANA OCLARIT, appears in our National
Indices of Marriage for Groom for the years 1973 to 2002 with the following information:

Date of Marriage Place of Marriage

a) April 06, 1999 b) SAN JOSE DEL MONTE,


BULACAN
a) December 08, 2001 b) QUEZON CITY, METRO
MANILA (2nd District)19

Before the trial and appellate courts, Nollora put up his Muslim religion as his sole
defense. He alleged that his religion allows him to marry more than once.
Granting arguendo that Nollora is indeed of Muslim faith at the time of celebration of
both marriages,20 Nollora cannot deny that both marriage ceremonies were not
conducted in accordance with the Code of Muslim Personal Laws, or Presidential
Decree No. 1083. The applicable Articles in the Code of Muslim Personal Laws read:

Art. 14. Nature. - Marriage is not only a civil contract but a civil institution. Its nature,
consequences and incidents are governed by this Code and the Sharia and not subject to
stipulation, except that the marriage settlements to a certain extent fix the property relations of
the spouses.

Art. 15. Essential Requisites. - No marriage contract shall be perfected unless the following
essential requisites are complied with:
(a) Legal capacity of the contracting parties;
(b) Mutual consent of the parties freely given;
(c) Offer (ijab) and acceptance (qabul) duly witnessed by at least two competent persons after
the proper guardian in marriage (wali) has given his consent; and
(d) Stipulation of the customary dower (mahr) duly witnessed by two competent persons.
Art. 16. Capacity to contract marriage. - (1) Any Muslim male at least fifteen years of age and
any Muslim female of the age of puberty or upwards and not suffering from any impediment
under the provisions of this Code may contract marriage. A female is presumed to have attained
puberty upon reaching the age of fifteen.
x x x.
Art. 17. Marriage Ceremony. - No particular form of marriage ceremony is required but
the ijab and the qabul in marriage shall be declared publicly in the presence of the person
solemnizing the marriage and the two competent witnesses. The declaration shall be set forth in
an instrument in triplicate, signed or marked by the contracting parties and said witnesses, and
attested by the person solemnizing the marriage. One copy shall be given to the contracting
parties and another sent to the Circuit Registrar by the solemnizing officer who shall keep the
third.

Art. 18. Authority to solemnize marriage. - Marriage maybe solemnized:


(a) By the proper wali by the woman to be wedded;
(b) Upon the authority of the proper wali, by any person who is competent under Muslim law to
solemnize marriage; or
(c) By the judge of the Sharia District Court or Sharia Circuit Court or any person designated by
the judge, should the proper wali refuse without justifiable reason, to authorize
the solemnization.

Art. 19. Place of solemnization. - Marriage shall be solemnized publicly in any mosque, office of
the Sharia judge, office of the Circuit Registrar, residence of the bride or her wali, or at any other
suitable place agreed upon by the parties.

Art. 20. Specification of dower. - The amount or value of dower may be fixed by the contracting
parties (mahr-musamma) before, during or after the celebration of marriage. If the amount or the
value thereof has not been so fixed, a proper dower (mahr-mithl) shall, upon petition of the wife,
be determined by the court according to the social standing of the parties.

Indeed, Article 13(2) of the Code of Muslim Personal Laws states that [i]n case
of a marriage between a Muslim and a non-Muslim, solemnized not in
accordance with Muslim law or this Code, the [Family Code of the Philippines,
or Executive Order No. 209, in lieu of the Civil Code of the Philippines] shall
apply. Nolloras religious affiliation is not an issue here. Neither is the claim
that Nolloras marriages were solemnized according to Muslim law. Thus,
regardless of his professed religion, Nollora cannot claim exemption from
liability for the crime of bigamy.21

Nollora asserted in his marriage certificate with Geraldino that his civil status is
single. Moreover, both of Nolloras marriage contracts do not state that he is a
Muslim. Although the truth or falsehood of the declaration of ones religion in the
marriage certificate is not an essential requirement for marriage, such omissions
are sufficient proofs of Nolloras liability for bigamy. Nolloras false declaration
about his civil status is thus further compounded by these omissions.
[ATTY. CALDINO:]
Q: In your marriage contract, Mr. Witness, with Jesusa Pinat, you indicated here as your religion,
Catholic Pentecostal, and you were saying that since January 10, 1992, you are already a
[M]uslim convert. . . you said, Mr. Witness, that you are already a [M]uslim convert since
January 10, 1992. However, in your marriage contract with Jesusa Pinat, there is no indication
here that you have indicated your religion. Will you please go over your marriage contract?

[NOLLORA:]
A: When we got married, they just placed there Catholic but I didnt know why they did not place
any Catholic there.

xxx

Q: Now, Mr. Witness, I would like to call your attention with respect to your marriage
contract with your co-accused in this case, Rowena Geraldino, x x x will you please tell us,
Mr. Witness, considering that you said that you are already a [M]uslim convert on January
10, 1992, why in the marriage contract with Rowena Geraldino, you indicated there your
religion as Catholic, Mr. Witness?
A: Since I was a former Catholic and since I was then keeping, I was keeping it as a secret
my being my Balik-Islam, thats why I placed there Catholic since I know that the society
doesnt approve a Catholic to marry another, thats why I placed there Catholic as my
religion, sir.

Q: How about under the column, civil status, why did you indicate there that youre single,
Mr. Witness?

A: I also kept it as a secret that I was married, earlier married.22 (Emphasis supplied)

xxx

[PROSECUTOR TAYLOR:]
Q: Would you die for your new religion, Mr. Nollora?

A: Yes, maam.
Q: If you would die for your new religion, why did you allow that your faith be indicated as
Catholic when in fact you were already as you alleged [M]uslim to be put in your marriage
contract?

xxx

[A:] I dont think there is anything wrong with it, I just signed it so we can get married under the
Catholic rights [sic] because after that we even got married under the [M]uslim rights [sic], your
Honor.

xxx

Q: Under your Muslim faith, if you marry a second wife, are you required under your faith to
secure the permission of your first wife to get married?

A: Yes, maam.

Q: Did you secure that permission from your first wife, Jesusa Nollora?

A: I was not able to ask any permission from her because she was very mad at me, at the start,
she was always very mad, maam.23

In his petition before this Court, Nollora casts doubt on the validity of his marriage
to Geraldino. Nollora may not impugn his marriage to Geraldino in order to extricate
himself from criminal liability; otherwise, we would be opening the doors to allowing
the solemnization of multiple flawed marriage ceremonies. As we stated in Tenebro v.
Court of Appeals:24
There is therefore a recognition written into the law itself that such a marriage, although
void ab initio, may still produce legal consequences. Among these legal consequences is
incurring criminal liability for bigamy. To hold otherwise would render the States penal laws on
bigamy completely nugatory, and allow individuals to deliberately ensure that each marital
contract be flawed in some manner, and to thus escape the consequences of contracting multiple
marriages, while beguiling throngs of hapless women with the promise of futurity and
commitment.
WHEREFORE, we DENY the petition. The Decision of the Court of Appeals in
CA-G.R. CR No. 31538 promulgated on 30 September 2009 and the Resolution
promulgated on 23 February 2010 are AFFIRMED. Petitioner Atilano O. Nollora, Jr.
is guilty beyond reasonable doubt of Bigamy in Criminal Case No. Q-04-129031 and
is sentenced to suffer the penalty of imprisonment with a term of two years, four
months and one day of prision correccional as minimum to eight years and one day
of prision mayor as maximum of his indeterminate sentence, as well as the accessory
penalties provided by law.

Costs against petitioner Atilano O. Nollora, Jr.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA JOSE PORTUGAL PEREZ


Associate Justice Associate Justice
JOSE C. MENDOZA
Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons
Attestation, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Courts
Division.

RENATO C. CORONA
Chief Justice
* Designated Acting Member per Special Order No. 1074 dated 6 September 2011.
** Designated Acting Member per Special Order No. 1066 dated 23 August 2011.
1 Under Rule 45 of the 1997 Rules of Civil Procedure.
2 Rollo, pp. 21-37. Penned by Associate Justice Vicente S.E. Veloso, with Associate Justices Andres B. Reyes, Jr.
and Marlene Gonzales-Sison, concurring.
3 Id. at 38. Penned by Associate Justice Vicente S.E. Veloso, with Associate Justices Andres B. Reyes, Jr. and
Marlene Gonzales-Sison, concurring.
4 CA rollo, pp. 26-33. Penned by Judge Ma. Luisa C. Quijano-Padilla.
5 Rollo, pp. 22-27.
6 CA rollo, pp. 26-33.
7 Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years
and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance
where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code,
an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present
must institute a summary proceeding as provided in this Code for the declaration of presumptive death of
the absentee, without prejudice to the effect of reappearance of the absent spouse.
8 Article 180. Law applicable. The provisions of the Revised Penal Code relative to the crime of bigamy shall not
apply to a person married in accordance with the provisions of this Code or, before its effectivity, under Muslim
law.
9 CA rollo, pp. 31-33.
10 Id. at 52.
11 Rollo, pp. 21-37.
12 Id. at 38.
13 Luis B. Reyes, The Revised Penal Code: Criminal Law 907 (1998).
14 Exhibit A, Records, p. 117.
15 TSN, 30 January 2006, p. 4.
16 Exhibit B, Records, p. 118. Also Article 2 of the Family Code of the Philippines, Executive Order No. 209
(1988).
Art. 2. No marriage shall be valid, unless these essential requisites are present:
(1) Legal capacity of the contracting parties who must be a male and a female; and
(2) Consent freely given in the presence of the solemnizing officer.
17 Exhibit A, Records, p. 117.
18 Exhibit B, id. at 118.
19 Exhibit C, id. at 119.
20 Id. at 195-198, 201, 206-207. Nollora presented various proofs of his Muslim affiliation:
Exhibit 1 and submarkings - Balik Islam Tableegh Foundation of the Philippines Membership Application Form
accomplished in handwritten form, dated 10 January 1992;
Exhibit 2 and submarkings - Certificate of Conversion to Islam dated 2 October 2004 issued
by Hadji Abdul Hai Qahar Madueo, President of Balik Islam Tableegh Foundation of the Philippines;
Exhibit 3 and submarkings - Certificate of Conversion to Islam dated 17 December 2003 issued by Abdullah M. Al-
Hamid, Director General of the Riyadh branch of the Ministry of Islamic Affairs, Endowments, Call and Guidance,
Kingdom of Saudi Arabia;
Exhibits 4, 12 and 13 - Certificate of Conversion to Islam dated 17 December 2003 issued by the Civil Registry
of Zamboanga City, Zamboanga del Sur; and
Exhibit 7 and submarkings Nolloras Pledge of Conversion dated 10 January 1992 issued
by Hadji Abdul Hai Qahar Madueo, President of Balik Islam Tableegh Foundation of the Philippines.
21 Supra note 8.
22 TSN, 30 January 2006, pp. 11-12.
23 TSN, 29 May 2006, pp. 6, 9-10.
24 467 Phil. 723, 744 (2004).

EN BANC

[G.R. Nos. 146710-15. March 2, 2001]

JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity


as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST
CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES
FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA,
ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., respondent.

[G.R. No. 146738. March 2, 2001]

JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-


ARROYO, respondent.

DECISION
PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito
Estrada alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo
claims she is the President. The warring personalities are important enough but more
transcendental are the constitutional issues embedded on the parties dispute. While the
significant issues are many, the jugular issue involves the relationship between the ruler and the
ruled in a democracy, Philippine style.
First, we take a view of the panorama of events that precipitated the crisis in the office of the
President.
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President
while respondent Gloria Macapagal-Arroyo was elected Vice-President. Some (10) million
Filipinos voted for the petitioner believing he would rescue them from lifes adversity. Both
petitioner and the respondent were to serve a six-year term commencing on June 30, 1998.
From the beginning of his term, however, petitioner was plagued by a plethora of problems
that slowly but surely eroded his popularity. His sharp descent from power started on October 4,
2000. Ilocos Sur Governos, Luis Chavit Singson, a longtime friend of the petitioner, went on air
and accused the petitioner, his family and friends of receiving millions of pesos
from jueteng lords.[1]
The expos immediately ignited reactions of rage. The next day, October 5, 2000, Senator
Teofisto Guingona Jr, then the Senate Minority Leader, took the floor and delivered a fiery
privilege speech entitled I Accuse. He accused the petitioner of receiving some P220 million
in jueteng money from Governor Singson from November 1998 to August 2000. He also charged
that the petitioner took from Governor Singson P70 million on excise tax on cigarettes intended
for Ilocos Sur. The privilege speech was referred by then Senate President Franklin Drilon, to the
Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee on
Justice (then headed by Senator Renato Cayetano) for joint investigation.[2]
The House of Representatives did no less. The House Committee on Public Order and
Security, then headed by Representative Roilo Golez, decided to investigate the expos of
Governor Singson. On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and
Michael Defensor spearheaded the move to impeach the petitioner.
Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime
Cardinal Sin issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese
of Manila, asking petitioner to step down from the presidency as he had lost the moral authority
to govern.[3] Two days later or on October 13, the Catholic Bishops Conference of the Philippines
joined the cry for the resignation of the petitioner.[4] Four days later, or on October 17, former
President Corazon C. Aquino also demanded that the petitioner take the supreme self-sacrifice of
resignation.[5] Former President Fidel Ramos also joined the chorus. Early on, or on October 12,
respondent Arroyo resigned as Secretary of the Department of Social Welfare and Services[6] and
later asked for petitioners resignation.[7]However, petitioner strenuously held on to his office and
refused to resign.
The heat was on. On November 1, four (4) senior economic advisers, members of the
Council of Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala,
former Prime Minister Cesar Virata, former Senator Vicente Paterno and Washington
Sycip.[8] On November 2, Secretary Mar Roxas II also resigned from the Department of Trade
and Industry.[9] On November 3, Senate President Franklin Drilon, and House Speaker Manuel
Villar, together with some 47 representatives defected from the ruling coalition, Lapian ng
Masang Pilipino.[10]
The month of November ended with a big bang. In a tumultuous session on November 13,
House Speaker Villar transmitted the Articles of Impeachment[11] signed by 115 representatives,
or more than 1/3 of all the members of the House of Representatives to the Senate. This caused
political convulsions in both houses of Congress. Senator Drilon was replaced by Senator
Pimentel as Senate President.Speaker Villar was unseated by Representative Fuentabella.[12] On
November 20, the Senate formally opened the impeachment trial of the petitioner. Twenty-one
(21) senators took their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr.,
presiding.[13]
The political temperature rose despite the cold December. On December 7, the impeachment
trial started.[14] the battle royale was fought by some of the marquee names in the legal
profession. Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte
and Representatives Joker Arroyo, Wigberto Taada, Sergio Apostol, Raul Gonzales, Oscar
Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio
Nachura. They were assisted by a battery of private prosecutors led by now Secretary of Justice
Hernando Perez and now Solicitor General Simeon Marcelo. Serving as defense counsel were
former Chief Justice Andres Narvasa, former Solicitor General and Secretary of Justice Estelito
P. Mendoza, former City Fiscal of Manila Jose Flamiano, former Deputy Speaker of the House
Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The day to day trial
was covered by live TV and during its course enjoyed the highest viewing rating.Its high and low
points were the constant conversational piece of the chattering classes. The dramatic point of the
December hearings was the testimony of Clarissa Ocampo, senior vice president of Equitable-
PCI Bank. She testified that she was one foot away from petitioner Estrada when he affixed the
signature Jose Velarde on documents involving a P500 million investment agreement with their
bank on February 4, 2000.[15]
After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of
Christmas. When it resumed on January 2, 2001, more bombshells were exploded by the
prosecution. On January 11, Atty. Edgardo Espiritu who served as petitioners Secretary of
Finance took the witness stand. He alleged that the petitioner jointly owned BW Resources
Corporation with Mr. Dante Tan who was facing charges of insider trading.[16] Then came the
fateful day of January 16, when by a vote of 11-10[17] the senator-judges ruled against the
opening of the second envelop which allegedly contained evidence showing that petitioner
held P3.3 billion in a secret bank account under the name Jose Velarde. The public and private
prosecutors walked out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate
President.[18] The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit
the streets of the metropolis. By midnight, thousands had assembled at the EDSA Shrine and
speeches full of sulphur were delivered against the petitioner and the eleven (11) senators.
On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering
their collective resignation. They also filed their Manifestation of Withdrawal of Appearance
with the impeachment tribunal.[19] Senator Raul Roco quickly moved for the indefinite
postponement of the impeachment proceedings until the House of Representatives shall have
resolved the issue of resignation of the public prosecutors. Chief Justice Davide granted the
motion.[20]
January 18 saw the high velocity intensification of the call for petitioners resignation. A 10-
kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino
Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the peoples
solidarity in demanding petitioners resignation. Students and teachers walked out of their classes
in Metro Manila to show their concordance. Speakers in the continuing rallies at the EDSA
Shrine, all masters of the physics of persuasion, attracted more and more people.[21]
On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the
petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of
Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the
holding of a snap election for President where he would not be a candidate. It did not diffuse the
growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and General
Reyes, together with the chiefs of all the armed services went to the EDSA Shrine.[22] In the
presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering
demonstrators, General Reyes declared that on behalf of your Armed Forces, the 130,000 strong
members of the Armed Forces, we wish to announce that we are withdrawing our support to this
government.[23] A little later, PNP Chief, Director General Panfilo Lacson and the major service
commanders gave a similar stunning announcement.[24] Some Cabinet secretaries,
undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their
posts.[25] Rallies for the resignation of the petitioner exploded in various parts of the country. To
stem the tide of rage, petitioner announced he was ordering his lawyers to agree to the opening of
the highly controversial second envelop.[26] There was no turning back the tide. The tide had
become a tsunami.
January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations
for the peaceful and orderly transfer of power started at Malacaangs Mabini Hall, Office of the
Executive Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon
Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel
Fernandez, head of the presidential Management Staff, negotiated for the petitioner. Respondent
Arroyo was represented by now Executive Secretary Renato de Villa, now Secretary of Finance
Alberto Romulo and now Secretary of Justice Hernando Perez.[27] Outside the palace, there was a
brief encounter at Mendiola between pro and anti-Estrada protesters which resulted in stone-
throwing and caused minor injuries. The negotiations consumed all morning until the news broke
out that Chief Justice Davide would administer the oath to respondent Arroyo at high noon at the
EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as
President of the Philippines.[28] At 2:30 p.m., petitioner and his family hurriedly left Malacaang
Palace.[29] He issued the following press statement:[30]
20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve oclock noon today, Vice President Gloria Macapagal-Arroyo took her oath
as President of the Republic of the Philippines. While along with many other legal
minds of our country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as President, I do not wish to be a factor that will
prevent the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat of the presidency of
this country, for the sake of peace and in order to begin the healing process of our
nation. I leave the Palace of our people with gratitude for the opportunities given to
me for service to our people. I will not shirk from any future challenges that may
come ahead in the same service of our country.
I call on all my supporters and followers to join me in the promotion of a constructive
national spirit of reconciliation and solidarity.
May the Almighty bless our country and beloved people.
MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA
It also appears that on the same day, January 20, 2001, he signed the following letter:[31]
Sir:
By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my
office. By operation of law and the Constitution, the Vice-President shall be the
Acting President.
(Sgd.) JOSEPH EJERCITO ESTRADA
A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m., on January
20.[32] Another copy was transmitted to Senate President Pimentel on the same day although it
was received only at 9:00 p.m.[33]
On January 22, the Monday after taking her oath, respondent Arroyo immediately
discharged the powers and duties of the Presidency. On the same day, this Court issued the
following Resolution in Administrative Matter No. 01-1-05-SC, to wit:
A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal-Arroyo to
Take her Oath of Office as President of the Republic of the Philippines before the
Chief Justice Acting on the urgent request of Vice-President Gloria Macapagal-
Arroyo to be sworn in as President of the Republic of the Philippines, addressed to the
Chief Justice and confirmed by a letter to the Court, dated January 20, 2001, which
request was treated as an administrative matter, the court Resolved unanimously to
confirm the authority given by the twelve (12) members of the Court then present to
the Chief Justice on January 20, 2001 to administer the oath of office to Vice
President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January
20, 2001.
This resolution is without prejudice to the disposition of any justiciable case that
maybe filed by a proper party.
Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.[34] Recognition of respondent Arroyos government by foreign governments swiftly
followed. On January 23, in a reception or vin d honneur at Malacaang, led by the Dean of the
Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats
recognized the government of respondent Arroyo.[35] US President George W. Bush gave the
respondent a telephone call from the White House conveying US recognition of her
government.[36]
On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.[37] The House then passed Resolution No. 175 expressing the full support of the
House of Representatives to the administration of Her Excellency Gloria Macapagal-Arroyo,
President of the Philippines.[38] It also approved Resolution No. 176 expressing the support of the
House of Representatives to the assumption into office by Vice President Gloria Macapagal-
Arroyo as President of the Republic of the Philippines, extending its congratulations and
expressing its support for her administration as a partner in the attainment of the nations goals
under the Constitution.[39]
On January 26, the respondent signed into law the Solid Waste Management Act.[40] A few
days later, she also signed into law the Political Advertising Ban and Fair Election Practices
Act.[41]
On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.[42] the next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.[43] Senators Miriam Defensor-Santiago, Juan Ponce Enrile,
and John Osmea voted yes with reservations, citing as reason therefore the pending challenge on
the legitimacy of respondent Arroyos presidency before the Supreme Court. Senators Teresa
Aquino-Oreta and Robert Barbers were absent.[44] The House of Representatives also approved
Senator Guingonas nomination in Resolution No. 178.[45] Senator Guingona took his oath as Vice
President two (2) days later.[46]
On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court
is functus officio and has been terminated.[47] Senator Miriam Defensor-Santiago stated for the
record that she voted against the closure of the impeachment court on the grounds that the Senate
had failed to decide on the impeachment case and that the resolution left open the question of
whether Estrada was still qualified to run for another elective post.[48]
Meanwhile, in a survey conducted by Pulse Asia, President Arroyos public acceptance
rating jacked up from 16% on January 20, 2001 to 38% on January 26, 2001.[49] In another survey
conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the
Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada. The survey
also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60% in the
balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased to
52%. Her presidency is accepted by majorities in all social classes:
58% in the ABC or middle-to-upper classes, 64% in the D or mass, and 54%
among the Es or very poor class.[50]
After his fall from the pedestal of power, the petitioners legal problems appeared in
clusters. Several cases previously filed against him in the Office of the Ombudsman were set in
motion. These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23,
2000 for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers
Against Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and
corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct for
government Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines
Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery,
perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on
November 28, 2000 for malversation of public funds, illegal use of public funds and property,
plunder, etc., (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28,
2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080;
and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for
plunder, graft and corruption.
A special panel of investigators was forthwith created by the respondent Ombudsman to
investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman
Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan,
Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the
panel issued an Order directing the petitioner to file his counter-affidavit and the affidavits of his
witnesses as well as other supporting documents in answer to the aforementioned complaints
against him.
Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court
GR No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It
sought to enjoin the respondent Ombudsman from conducting any further proceedings in Case
Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that
may be filed in his office, until after the term of petitioner as President is over and only if legally
warranted. Thru another counsel, petitioner, on February 6, filed GR No. 146738 for Quo
Warranto. He prayed for judgment confirming petitioner to be the lawful and incumbent
President of the Republic of the Philippines temporarily unable to discharge the duties of his
office, and declaring respondent to have taken her oath as and to be holding the Office of the
President, only in an acting capacity pursuant to the provisions of the Constitution. Acting on GR
Nos. 146710-15, the Court, on the same day, February 6, required the respondents to comment
thereon within a non-extendible period expiring on 12 February 2001. On February 13, the Court
ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the filing of the
respondents comments on or before 8:00 a.m. of February 15.
On February 15, the consolidated cases were orally argued in a four-hour hearing. Before
the hearing, Chief Justice Davide, Jr.,[51] and Associate Justice Artemio Panganiban[52] recused
themselves on motion of petitioners counsel, former Senator Rene A. Saguisag. They debunked
the charge of counsel Saguisag that they have compromised themselves by indicating that they
have thrown their weight on one side but nonetheless inhibited themselves. Thereafter, the
parties were given the short period of five (5) days to file their memoranda and two (2) days to
submit their simultaneous replies.
In a resolution dated February 20, acting on the urgent motion for copies of resolution and
press statement for Gag Order on respondent Ombudsman filed by counsel for petitioner in G.R.
No. 146738, the Court resolved:
(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue
a press statement justifying the alleged resolution;
(2) to order the parties and especially their counsel who are officers of the Court under
pain of being cited for contempt to refrain from making any comment or discussing in
public the merits of the cases at bar while they are still pending decision by the Court,
and
(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in
his office against petitioner Joseph E. Estrada and subject of the cases at bar, it
appearing from news reports that the respondent Ombudsman may immediately
resolve the cases against petitioner Joseph E. Estrada seven (7) days after the hearing
held on February 15, 2001, which action will make the cases at bar moot and
academic.[53]
The parties filed their replies on February 24. On this date, the cases at bar were deemed
submitted for decision.
The bedrock issues for resolution of this Court are:
I

Whether the petitions present a justiciable controversy.


II

Assuming that the petitions present a justiciable controversy, whether petitioner


Estrada is a President on leave while respondent Arroyo is an Acting President.
III

Whether conviction in the impeachment proceedings is a condition precedent for the


criminal prosecution of petitioner Estrada. In the negative and on the assumption that
petitioner is still President, whether he is immune from criminal prosecution.
IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of


prejudicial publicity.
We shall discuss the issues in seriatim.
I

Whether or not the cases at bar involve a political question

Private respondents[54] raise the threshold issue that the cases at bar pose a political question,
and hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the legitimacy of the Arroyo administration. They stress that
respondent Arroyo ascended the presidency through people power; that she has already taken her
oath as the 14th President of the Republic; that she has exercised the powers of the presidency
and that she has been recognized by foreign governments. They submit that these realities on
ground constitute the political thicket which the Court cannot enter.
We reject private respondents submission. To be sure, courts here and abroad, have tried to
lift the shroud on political question but its exact latitude still splits the best of legal
minds. Developed by the courts in the 20th century, the political question doctrine which rests on
the principle of separation of powers and on prudential considerations, continue to be refined in
the mills constitutional law.[55] In the United States, the most authoritative guidelines to
determine whether a question is political were spelled out by Mr. Justice Brennan in the 1962
case of Baker v. Carr,[56] viz:
x x x Prominent on the surface on any case held to involve a political question is
found a textually demonstrable constitutional commitment of the issue to a coordinate
political department or a lack of judicially discoverable and manageable standards for
resolving it, or the impossibility of deciding without an initial policy determination of
a kind clearly for nonjudicial discretions; or the impossibility of a courts undertaking
independent resolution without expressing lack of the respect due coordinate branches
of government; or an unusual need for unquestioning adherence to a political decision
already made; or the potentiality of embarrassment from multifarious pronouncements
by various departments on question. Unless one of these formulations is inextricable
from the case at bar, there should be no dismissal for non justiciability on the ground
of a political questions presence. The doctrine of which we treat is one of political
questions, not of political cases.
In the Philippine setting, this Court has been continuously confronted with cases calling for
a firmer delineation of the inner and outer perimeters of a political question.[57] Our leading case
is Tanada v. Cuenco,[58] where this Court, through former Chief Justice Roberto Concepcion,
held that political questions refer to those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the government. It is
concerned with issues dependent upon the wisdom, notlegality of a particular measure. To a
great degree, the 1987 Constitution has narrowed the reach of the political question doctrine
when it expanded the power of judicial review of this court not only to settle actual
controversies involving rights which are legally demandable and enforceable but also to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of government.[59] Heretofore,
the judiciary has focused on the thou shalt nots of the Constitution directed against the exercise
of its jurisdiction.[60]With the new provision, however, courts are given a greater prerogative to
determine what it can do to prevent grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of government. Clearly, the new
provision did not just grant the Court power of doing nothing. In sync and symmetry with
this intent are other provisions of the 1987 Constitution trimming the so called political
thicket. Prominent of these provisions is section 18 of Article VII which empowers this Court in
limpid language to x x x review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ (of habeas corpus) or the extension thereof x x x.
Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver
A. Lozano v. President Corazon C. Aquino, et al.[61] and related cases[62] to support their thesis
that since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo,
they present a political question. A more cerebral reading of the cited cases will show that they
are inapplicable. In the cited cases, we held that the government of former President Aquino was
the result of a successful revolution by the sovereign people, albeit a peaceful one. No less than
the Freedom Constitution[63] declared that the Aquino government was installed through a direct
exercise of the power of the Filipino people in defiance of the provisions of the 1973
Constitution, as amended. It is familiar learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial scrutiny for that government
automatically orbits out of the constitutional loop. In checkered contrast, the government of
respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA
Shrine is the oath under the 1987 Constitution.[64] In her oath, she categorically swore to
preserve and defend the 1987 Constitution. Indeed, she has stressed that she is discharging the
powers of the presidency under the authority of the 1987 Constitution.
In fine, the legal distinction between EDSA People Power I and EDSA People Power II is
clear. EDSA I involves the exercise of the people power of revolution which overthrew the
whole government. EDSA II is an exercise of people power of freedom of speech and
freedom of assembly to petition the government for redress of grievances which only
affected the office of the President. EDSA I is extra constitutional and the legitimacy of the
new government that resulted from it cannot be the subject of judicial review, but EDSA II is
intra constitutional and the resignation of the sitting President that it caused and the succession
of the Vice President as President are subject to judicial review. EDSA I presented political
question; EDSA II involves legal questions. A brief discourse on freedom of speech and of the
freedom of assembly to petition the government for redress of grievance which are the cutting
edge of EDSA People Power II is not inappropriate.
Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these
rights was one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P.
Rizal, raised the clarion call for the recognition of freedom of the press of the Filipinos and
included it as among the reforms sine quibus non.[65] The Malolos Constitution, which is the
work of the revolutionary Congress in 1898, provided in its Bill of Rights that Filipinos shall not
be deprived (1) of the right to freely express his ideas or opinions, orally or in writing, through
the use of the press or other similar means; (2) of the right of association for purposes of human
life and which are not contrary to public means; and (3) of the right to send petitions to the
authorities, individually or collectively. These fundamental rights were preserved when the
United States acquired jurisdiction over the Philippines. In the instruction to the Second
Philippine Commission of April 7, 1900 issued by President McKinley, it is specifically
provided that no law shall be passed abridging the freedom of speech or of the press or of the
rights of the people to peaceably assemble and petition the Government for redress of
grievances. The guaranty was carried over in the Philippine Bill, the Act of Congress of July 1,
1902 and the Jones Law, the Act of Congress of August 29, 1966.[66]
Thence on, the guaranty was set in stone in our 1935 Constitution,[67] and
the 1973[68] Constitution. These rights are now safely ensconced in section 4, Article III of the 1987
Constitution, viz:
Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the government
for redress of grievances.
The indispensability of the peoples freedom of speech and of assembly to democracy is now
self-evident. The reasons are well put by Emerson: first, freedom of expression is essential as a
means of assuring individual fulfillment; second, it is an essential process for advancing
knowledge and discovering truth; third, it is essential to provide for participation in decision-
making by all members of society; and fourth, it is a method of achieving a more adaptable and
hence, a more stable community of maintaining the precarious balance between healthy cleavage
and necessary consensus.[69] In this sense, freedom of speech and of assembly provides a framework in
which the conflict necessary to the progress of a society can take place without destroying the
society.[70] In Hague v. Committee for Industrial Organization,[71] this function of free speech and
assembly was echoed in the amicus curiae brief filed by the Bill of Rights Committee of the
American Bar Association which emphasized that the basis of the right of assembly is the
substitution of the expression of opinion and belief by talk rather than force; and this
means talk for all and by all.[72] In the relatively recent case of
Subayco v. Sandiganbayan, this Court similarly stressed that "... it should be clear even to
[73]

those with intellectual deficits that when the sovereign people assemble to petition for redress of
grievances, all should listen. For in a democracy, it is the people who count; those who are
deaf to their grievances are ciphers.
Needless to state, the cases at bar pose legal and not political questions. The principal issues
for resolution require the proper interpretation of certain provisions in the 1987 Constitution,
notably section 1 of Article II,[74] and section 8[75]of Article VII, and the allocation of
governmental powers under section 11[76] of Article VII. The issues likewise call for a ruling on
the scope of presidential immunity from suit. They also involve the correct calibration of the
right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury v.
Madison,[77] the doctrine has been laid down that it is emphatically the province and duty of
the judicial department to say what the law is . . . Thus, respondents invocation of the doctrine
of political is but a foray in the dark.
II

Whether or not the petitioner resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a
political question. Indeed, it involves a legal question whose factual ingredient is determinable
from the records of the case and by resort to judicial notice. Petitioner denies he resigned as
President or that he suffers from a permanent disability. Hence, he submits that the office of the
President was not vacant when respondent Arroyo took her oath as president.
The issue brings under the microscope of the meaning of section 8, Article VII of the
Constitution which provides:
Sec. 8. In case of death, permanent disability, removal from office or resignation of
the President, the Vice President shall become the President to serve the unexpired
term. In case of death, permanent disability, removal from office, or resignation of
both the President and Vice President, the President of the Senate or, in case of his
inability, the Speaker of the House of Representatives, shall then acts as President
until President or Vice President shall have been elected and qualified.
x x x.
The issue then is whether the petitioner resigned as President or should be considered
resigned as of January 20, 2001 when respondent took her oath as the 14th President of the
Republic. Resignation is not a high level legal abstraction. It is a factual question and
its elements are beyond quibble: there must be an intent to resign and the intent must be
coupled by acts of relinquishment.[78] The validity of a resignation is not governed by any
formal requirement as to form. It can be oral. It can be written. It can be express. It can be
implied. As long as the resignation is clear, it must be given legal effect.
In the cases at bar, the facts shows that petitioner did not write any formal letter of
resignation before he evacuated Malacaang Palace in the Afternoon of January 20, 2001 after the
oath-taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be
determined from his acts and omissions before, during and after January 20, 2001 or by
the totality of prior, contemporaneous and posterior facts and circumstantial evidence
bearing a material relevance on the issue.
Using this totality test, we hold that petitioner resigned as President.
To appreciate the public pressure that led to the resignation of the petitioner, it is important
to follow the succession of events after the expos of Governor Singson. The Senate Blue Ribbon
Committee investigated. The more detailed revelations of petitioners alleged misgovernance in
the Blue Ribbon investigation spiked the hate against him. The Articles of Impeachment filed in
the House of Representatives which initially was given a near cipher chance of succeeding
snowballed. In express speed, it gained the signatures of 115 representatives or more than 1/3 of
the House of Representatives.Soon, petitioners powerful political allies began deserting
him. Respondent Arroyo quit as Secretary of Social Welfare. Senate President Drilon and
Former Speaker Villar defected with 47 representatives in tow. Then, his respected senior
economic advisers resigned together with his Secretary of Trade and Industry.
As the political isolation of the petitioner worsened, the peoples call for his resignation
intensified. The call reached a new crescendo when the eleven (11) members of the impeachment
tribunal refused to open the second envelope. It sent the people to paroxysms of outrage. Before
the night of January 16 was over, the EDSA Shrine was swarming with people crying for redress
of their grievance. Their number grew exponentially. Rallies and demonstration quickly spread
to the countryside like a brush fire.
As events approached January 20, we can have an authoritative window on the state of
mind of the petitioner. The window is provided in the Final Days of Joseph Ejercito Estrada, the
diary of Executive Secretary Angara serialized in the Philippine Daily Inquirer.[79] The Angara
Diary reveals that in morning of January 19, petitioners loyal advisers were worried about the
swelling of the crowd at EDSA, hence, they decided to crate an ad hoc committee to handle
it. Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small
office at the presidential residence and exclaimed: Ed, seryoso na ito. Kumalas na si Angelo
(Reyes) (Ed, this is serious. Angelo has defected.)[80] An hour later or at 2:30, p.m., the petitioner
decided to call for a snap presidential election and stressed he would not be a candidate. The
proposal for a snap election for president in May where he would not be a candidate is an
indicium that petitioner had intended to give up the presidency even at that time.At 3:00
p.m., General Reyes joined the sea of EDSA demonstrators demanding the resignation of the
petitioner and dramatically announced the AFPs withdrawal of support from the petitioner and
their pledge of support to respondent Arroyo. The seismic shift of support left petitioner weak as
a president. According to Secretary Angara, he asked Senator Pimentel to advise petitioner to
consider the option of dignified exit or resignation.[81] Petitioner did nor disagree but listened
intently.[82] The sky was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel repeated to
the petitioner the urgency of making a graceful and dignified exit. He gave the proposal a
sweetener by saying that petitioner would allowed to go abroad with enough funds to support
him and his family.[83] Significantly, the petitioner expressed no objection to the suggestion
for a graceful and dignified exit but said he would never leave the country.[84] At 10:00 p.m.,
petitioner revealed to Secretary Angara, Ed, Angie (Reyes) guaranteed that I would have five
days to a week in the palace.[85] This is proof that petitioner had reconciled himself to the
reality that he had to resign. His mind was already concerned with the five-day grace
period he could stay in the palace. It was a matter of time.
The pressure continued piling up. By 11:00 p.m., former President Ramos called up
Secretary Angara and requested, Ed, magtulungan tayo para magkaroon tayo ng (lets cooperate
to ensure a) peaceful and orderly transfer of power.[86] There was no defiance to the
request. Secretary Angara readily agreed. Again, we note that at this stage, the problem was
already about a peaceful and orderly transfer of power. The resignation of the petitioner
was implied.
The first negotiation for a peaceful and orderly transfer of power immediately started at
12:20 a.m. of January 20, that fateful Saturday. The negotiation was limited to three (3)
points: (1) the transition period of five days after the petitioners resignation; (2) the guarantee of
the safety of the petitioner and his family, and (3) the agreement to open the second envelope to
vindicate the name of the petitioner.[87]Again, we note that the resignation of petitioner was
not a disputed point. The petitioner cannot feign ignorance of this fact. According to
Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three points and the following
entry in the Angara Diary shows the reaction of the petitioner, viz:
xxx
I explain what happened during the first round of
negotiations. The President immediately stresses that he just wants the five-day
period promised by Reyes, as well as to open the second envelope to clear his name.
If the envelope is opened, on Monday, he says, he will leave by Monday.
The President says. Pagod na pagod na ako. Ayoko na masyado nang
masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I dont
want any more of this its too painful. Im tired of the red tape, the bureaucracy,
the intrigue.)
I just want to clear my name, then I will go.[88]
Again, this is high grade evidence that the petitioner has resigned. The intent to resign is
clear when he said x x x Ayoko na masyado nang masakit. Ayoko na are words of resignation.
The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the
following happened:
Oppositions deal
7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagals spokesperson) Rene
Corona. For this round, I am accompanied by Dondon Bagatsing and Macel.
Rene pulls out a document titled Negotiating Points. It reads:
1. The President shall sign a resignation document within the day, 20 January 2001,
that will be effective on Wednesday, 24 January 2001, on which day the Vice
President will assume the Presidency of the Republic of the Philippines.
2. Beginning today, 20 January 2001, the transition process for the assumption of the
new administration shall commence, and persons designated by the Vice president to
various positions and offices of the government shall start their orientation activities
in coordination with the incumbent officials concerned.
3. The Armed Forces of the Philippines and the Philippine National Police shall
function under the Vice President as national military and police effective
immediately.
4. The Armed Forces of the Philippines, through its Chief of Staff, shall guarantee the
security of the president and his family as approved by the national military and police
authority (Vice President).
5. It is to be noted that the Senate will open the second envelope in connection with
the alleged savings account of the President in the Equitable PCI Bank in accordance
with the rules of the Senate, pursuant to the request to the Senate President.
Our deal
We bring out, too, our discussion draft which reads:
The undersigned parties, for and in behalf of their respective principals, agree and
undertake as follows:
1. A transition will occur and take place on Wednesday, 24 January 2001, at which
time President Joseph Ejercito Estrada will turn over the presidency to Vice President
Gloria Macapagal-Arroyo.
2. In return, President Estrada and his families are guaranteed security and safety of
their person and property throughout their natural lifetimes. Likewise, President
Estrada and his families are guaranteed freedom from persecution or retaliation from
government and the private sector throughout their natural lifetimes.
This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP)
through the Chief of Staff, as approved by the national military and police authorities
Vice President (Macapagal).
3. Both parties shall endeavor to ensure that the Senate siting as an impeachment court
will authorize the opening of the second envelope in the impeachment trial as proof
that the subject savings account does not belong to President Estrada.
4. During the five-day transition period between 20 January 2001 and 24 January
2001 (the Transition Period), the incoming Cabinet members shall receive an
appropriate briefing from the outgoing Cabinet officials as part of the orientation
program.
During the Transition Period, the AFP and the Philippine National Police (PNP) shall
function under Vice President (Macapagal) as national military and police authorities.
Both parties hereto agree that the AFP chief of staff and PNP director general shall
obtain all the necessary signatures as affixed to this agreement and insure faithful
implementation and observance thereof.
Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in Annex A heretofore attached to this agreement.[89]
The second round of negotiation cements the reading that the petitioner has
resigned. It will be noted that during this second round of negotiation, the resignation of
the petitioner was again treated as a given fact. The only unsettled points at that time were
the measures to be undertaken by the parties during and after the transition period.
According to Secretary Angara, the draft agreement which was premised on the resignation
of the petitioner was further refined. It was then signed by their side and he was ready to fax it
to General Reyes and Senator Pimentel to await the signature of the United
Opposition. However, the signing by the party of the respondent Arroyo was aborted by her
oath-taking. The Angara Diary narrates the fateful events, viz:[90]
xxx
11:00 a.m. Between General Reyes and myself, there is a firm agreement on the
five points to effect a peaceful transition. I can hear the general clearing all these
points with a group he is with. I hear voices in the background.
Agreement
The agreement starts: 1. The President shall resign today, 20 January 2001, which
resignation shall be effective on 24 January 2001, on which day the Vice President
will assume the presidency of the Republic of the Philippines.
xxx
The rest of the agreement follows:
2. The transition process for the assumption of the new administration shall
commence on 20 January 2001, wherein persons designated by the Vice President to
various government positions shall start orientation activities with incumbent officials.
3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the
safety and security of the President and his families throughout their natural lifetimes
as approved by the national military and police authority Vice President.
4. The AFP and the Philippine National Police (PNP) shall function under the Vice
President as national military and police authorities.
5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject
savings account does not belong to the President.
The Vice President shall issue a public statement in the form and tenor provided for in
Annex B heretofore attached to this agreement.
xxx
11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement, signed
by our side and awaiting the signature of the United Opposition.
And then it happens. General Reyes calls me to say that the Supreme Court has
decided that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.
Bakit hindi naman kayo nakahintay? Paano na ang agreement (Why couldnt you
wait? What about the agreement)? I asked.
Reyes answered: Wala na, sir (Its over, sir).
I asked him: Di yung transition period, moot and academic na?
And General Reyes answer: Oo nga, i-delete na natin, sir (Yes, were deleting that
part).
Contrary to subsequent reports, I do not react and say that there was a double cross.
But I immediately instruct Macel to delete the first provision on resignation since
this matter is already moot and academic. Within moments, Macel erases the first
provision and faxes the documents, which have been signed by myself, Dondon and
Macel to Nene Pimentel and General Reyes.
I direct Demaree Ravel to rush the original document to General Reyes for the
signatures of the other side, as it is important that the provision on security, at
least, should be respected.
I then advise the President that the Supreme Court has ruled that Chief Justice Davide
will administer the oath to Gloria at 12 noon.
The president is too stunned for words.
Final meal
12 noon Gloria takes her oath as President of the Republic of the Philippines.
12:20 p.m. The PSG distributes firearms to some people inside the compound.
The President is having his final meal at the Presidential Residence with the few
friends and Cabinet members who have gathered.
By this time, demonstrators have already broken down the first line of defense at
Mendiola. Only the PSG is there to protect the Palace, since the police and military
have already withdrawn their support for the President.
1 p.m. The Presidents personal staff is rushing to pack as many of the Estrada familys
personal possessions as they can.
During lunch, Ronie Puno mentions that the President needs to release a final
statement before leaving Malacaang.
The statement reads: At twelve oclock noon today, Vice President Gloria
Macapagal-Arroyo took her oath as President of the Republic of the
Philippines. While along with many other legal minds of our country, I have strong
and serious doubts about the legality and constitutionality of her proclamation as
president, I do not wish to be a factor that will prevent the restoration of unity and
order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat of the presidency of
this country, for the sake of peace and in order to begin the healing process of our
nation. I leave the Palace of our people with gratitude for the opportunities given to
me for service to our people. I will not shrik from any future challenges that may
come ahead in the same service of our country.
I call on all my supporters and followers to join me in the promotion of a constructive
national spirit of reconciliation and solidarity.
May the Almighty bless our country and our beloved people.
MABUHAY!
It was curtain time for the petitioner.
In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by
his leaving Malacaang. In the press release containing his final statement, (1) he acknowledged
the oath-taking of the respondent as President of the Republic albeit with the reservation
about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the
sake of peace and in order to begin the healing process of our nation. He did not say he was
leaving the Palace due to any kind of inability and that he was going to re-assume the
presidency as soon as the disability disappears; (3) he expressed his gratitude to the people for
the opportunity to serve them. Without doubt, he was referring to the past opportunity given
him to serve the people as President; (4) he assured that he will not shirk from any future
challenge that may come ahead in the same service of our country. Petitioners reference is to
a future challenge after occupying the office of the president which he has given up; and (5)
he called on his supporters to join him in the promotion of a constructive national spirit of
reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity
could not be attained if he did not give up the presidency. The press release was petitioners
valedictory, his final act of farewell. His presidency is now in the past tense.
It is, however, urged that the petitioner did not resign but only took a temporary leave
of absence due to his inability to govern. In support of this thesis, the letter dated January 20,
2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited. Again,
we refer to the said letter, viz:
Sir
By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my
office. By operation of law and the Constitution, the Vice President shall be the
Acting President.
(Sgd.) Joseph Ejercito Estrada
To say the least, the above letter is wrapped in mystery.[91] The pleadings filed by the
petitioner in the cases at bar did not discuss, nay even intimate, the circumstances that led to its
preparation.Neither did the counsel of the petitioner reveal to the Court these circumstances
during the oral argument. It strikes the Court as strange that the letter, despite its legal
value, was never referred to by the petitioner during the week-long crisis. To be sure, there
was not the slightest hint of its existence when he issued his final press release. It was all too
easy for him to tell the Filipino people in his press release that he was temporarily unable to
govern and that he was leaving the reins of government to respondent Arroyo for the time
being. Under any circumstance, however, the mysterious letter cannot negate the
resignation of the petitioner. If it was prepared before the press release of the petitioner clearly
showing his resignation from the presidency, then the resignation must prevail as a later act. If,
however, it was prepared after the press release, still, it commands scant legal
significance. Petitioners resignation from the presidency cannot be the subject of a
changing caprice nor of a whimsical will especially if the resignation is the result of his
repudiation by the people. There is another reason why this Court cannot give any legal
significance to petitioners letter and this shall be discussed in issue number III of this Decision.
After petitioner contended that as a matter of fact he did not resign, he also argues that
he could not resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act, which allegedly prohibits his
resignation, viz:
Sec. 12. No public officer shall be allowed to resign or retire pending an investigation,
criminal or administrative, or pending a prosecution against him, for any offense
under this Act or under the provisions of the Revised Penal Code on bribery.
A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the
petitioner. RA No. 3019 originated from Senate Bill No. 293. The original draft of the bill, when
it was submitted to the Senate, did not contain a provision similar to section 12 of the law as it
now stands. However, in his sponsorship speech, Senator Arturo Tolentino, the author of the bill,
reserved to propose during the period of amendments the inclusion of a provision to the effect
that no public official who is under prosecution for any act of graft or corruption, or is under
administrative investigation, shall be allowed to voluntarily resign or retire.[92] During the period
of amendments, the following provision was inserted as section 15:
Sec. 15. Termination of office No public official shall be allowed to resign or retire
pending an investigation, criminal or administrative, or pending a prosecution against
him, for any offense under the Act or under the provisions of the Revised Penal Code
on bribery.
The separation or cessation of a public official from office shall not be a bar to his
prosecution under this Act for an offense committed during his incumbency. [93]
The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the
second paragraph of the provision and insisted that the Presidents immunity should extend even
after his tenure.
Senate Bill No. 571, which was substantially similar to Senate Bill No. 293, was thereafter
passed. Section 15 above became section 13 under the new bill, but the deliberations on this
particular provision mainly focused on the immunity of the President which was one of the
reasons for the veto of the original bill. There was hardly any debate on the prohibition against
the resignation or retirement of a public official with pending criminal and administrative cases
against him. Be that as it may, the intent of the law ought to be obvious. It is to prevent the
act of resignation or retirement from being used by a public official as a protective shield to
stop the investigation of a pending criminal or administrative case against him and to
prevent his prosecution under the Anti-Graft Law or prosecution for bribery under the
Revised Penal Code. To be sure, no person can be compelled to render service for that would be
a violation of his constitutional right.[94] A public official has the right not to serve if he really
wants to retire or resign. Nevertheless, if at the time he resigns or retires, a public official is
facing administrative or criminal investigation or prosecution, such resignation or retirement will
not cause the dismissal of the criminal or administrative proceedings against him. He cannot use
his resignation or retirement to avoid prosecution.
There is another reason why petitioners contention should be rejected. In the cases at bar, the
records show that when petitioner resigned on January 20, 2001, the cases filed against him
before the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and
0-00-1758. While these cases have been filed, the respondent Ombudsman refrained from
conducting the preliminary investigation of the petitioner for the reason that as the sitting
President then, petitioner was immune from suit. Technically, the said cases cannot be
considered as pending for the Ombudsman lacked jurisdiction to act on them. Section 12 of RA
No. 3019 cannot therefore be invoked by the petitioner for it contemplates of cases whose
investigation or prosecution do not suffer from any insuperable legal obstacle like the immunity
from suit of a sitting President.
Petitioner contends that the impeachment proceeding is an administrative investigation that,
under section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of
an impeachment proceeding is debatable. But even assuming arguendo that it is an
administrative proceeding, it can not be considered pending at the time petitioner resigned
because the process already broke down when a majority of the senator-judges voted against the
opening of the second envelope, the public and private prosecutors walked out, the public
prosecutors filed their Manifestation of Withdrawal of Appearance, and the proceedings were
postponed indefinitely. There was, in effect, no impeachment case pending against petitioner
when he resigned.
III

Whether or not the petitioner is only temporarily unable to act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to
perform the powers and duties of the presidency, and hence is a President on leave. As
aforestated, the inability claim is contained in the January 20, 2001 letter of petitioner sent on the
same day to Senate President Pimentel and Speaker Fuentebella.
Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the
inability of the petitioner to discharge the powers and duties of the presidency. His significant
submittal is that Congress has the ultimate authority under the Constitution to determine whether
the President is incapable of performing his functions in the manner provided for in section 11 of
Article VII.[95] This contention is the centerpiece of petitioners stance that he is a President on
leave and respondent Arroyo is only an Acting President.
An examination of section 11, Article VII is in order. It provides:
SEC. 11. Whenever the President transmit to the President of the Senate and the
Speaker of the House of Representatives his written declaration that he is unable to
discharge the powers and duties of his office, and until he transmits to them a written
declaration to the contrary, such powers and duties shall be discharged by the Vice-
President as Acting President.
Whenever a majority of all the Members of the Cabinet transmit to the President of
the Senate and to the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and duties of his
office, the Vice-President shall immediately assume the powers and duties of the
office as Acting President.
Thereafter, when the President transmits to the President of the Senate and to the
Speaker of the House of Representatives his written declaration that no inability
exists, he shall reassume the powers and duties of his office. Meanwhile, should a
majority of all the Members of the Cabinet transmit within five days to the President
of the Senate and to the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and duties of his
office, the Congress shall decide the issue. For that purpose, the Congress shall
convene, if it is not in session, within forty-eight hours, in accordance with its rules
and without need of call.
If the Congress, within ten days after receipt of the last written declaration, or, if not
in session within twelve days after it is required to assemble, determines by a two-
thirds vote of both Houses, voting separately, that the President is unable to discharge
the powers and duties of his office, the Vice-President shall act as President;
otherwise, the President shall continue exercising the powers and duties of his office."
That is the law. Now the operative facts:
(1) Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;
(2) Unaware of the letter, respondent Arroyo took her oath of office as President on January
20, 2001 at about 12:30 p.m.;
(3) Despite receipt of the letter, the House of Representative passed on January 24,
2001 House Resolution No. 175;[96]
On the same date, the House of the Representatives passed House Resolution No.
176[97]which states:
RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE
PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER
ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE
NATIONS GOALS UNDER THE CONSTITUTION
WHEREAS, as a consequence of the peoples loss of confidence on the ability of
former President Joseph Ejercito Estrada to effectively govern, the Armed Forces of
the Philippines, the Philippine National Police and majority of his cabinet had
withdrawn support from him;
WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice
President Gloria Macapagal-Arroyo was sworn in as President of the Philippines on
20 January 2001 before Chief Justice Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter, members of the international community had
extended their recognition to Her Excellency, Gloria Macapagal-Arroyo as President
of the Republic of the Philippines;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a
policy of national healing and reconciliation with justice for the purpose of national
unity and development;
WHEREAS, it is axiomatic that the obligations of the government cannot be achieved
if it is divided, thus by reason of the constitutional duty of the House of
Representatives as an institution and that of the individual members thereof of fealty
to the supreme will of the people, the House of Representatives must ensure to the
people a stable, continuing government and therefore must remove all obstacles to the
attainment thereof;
WHEREAS, it is a concomitant duty of the House of Representatives to exert all
efforts to unify the nation, to eliminate fractious tension, to heal social and political
wounds, and to be an instrument of national reconciliation and solidarity as it is a
direct representative of the various segments of the whole nation;
WHEREAS, without surrendering its independence, it is vital for the attainment of all
the foregoing, for the House of Representatives to extend its support and collaboration
to the administration of Her Excellency, President Gloria Macapagal-Arroyo, and to
be a constructive partner in nation-building, the national interest demanding no
less: Now, therefore, be it
Resolved by the House of Representatives, To express its support to the assumption
into office by Vice President Gloria Macapagal-Arroyo as President of the Republic
of the Philippines, to extend its congratulations and to express its support for her
administration as a partner in the attainment of the Nations goals under the
Constitution.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on January 24, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General
On February 7, 2001, the House of the Representatives passed House Resolution No.
178[98] which states:
RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYOS
NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT
OF THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the
assumption to the Presidency of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the
event of such vacancy shall nominate a Vice President from among the members of
the Senate and the House of Representatives who shall assume office upon
confirmation by a majority vote of all members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated
Senate Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of
the Republic of the Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with
integrity, competence and courage; who has served the Filipino people with dedicated
responsibility and patriotism;
WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true
statesmanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit,
Executive Secretary, Secretary of Justice, Senator of the Philippines - qualities which
merit his nomination to the position of Vice President of the Republic: Now,
therefore, be it
Resolved as it is hereby resolved by the House of Representatives, That the House of
Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the
Vice President of the Republic of the Philippines.
Adopted,
(Sgd) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on February 7, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General
(4) Also, despite receipt of petitioners letter claiming inability, some twelve (12)
members of the Senate signed the following:
RESOLUTION
WHEREAS, the recent transition in government offers the nation an opportunity for
meaningful change and challenge;
WHEREAS, to attain desired changes and overcome awesome challenges the nation
needs unity of purpose and resolute cohesive resolute (sic) will;
WHEREAS, the Senate of the Philippines has been the forum for vital legislative
measures in unity despite diversities in perspectives;
WHEREFORE, we recognize and express support to the new government of President
Gloria Macapagal-Arroyo and resolve to discharge our duties to attain desired
changes and overcome the nations challenges.[99]
On February 7, the Senate also passed Senate Resolution No. 82[100] which states:
RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYOS
NOMINATION OF SEN. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is it vacancy in the Office of the Vice-President due to the


assumption to the Presidency of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the
event of such vacancy shall nominate a Vice President from among the members of
the Senate and the House of Representatives who shall assume office upon
confirmation by a majority vote of all members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated
Senate Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of
the Republic of the Phillippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with
integrity, competence, and courage; who has served the Filipino people with dedicated
responsibility and patriotism;
WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true
statesmanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit,
Executive Secretary, Secretary of Justice. Senator of the land - which qualities merit
his nomination to the position of Vice President of the Republic: Now, therefore, be it
Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen.
Teofisto T. Guingona, Jr. as Vice President of the Republic of the Philippines.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate
On the same date, February 7, the Senate likewise passed Senate Resolution No. 83[101] which
states:
RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT
IS FUNCTUS OFFICIO
Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment
Court is functus officio and has been terminated.
Resolved, further, That the Journals of the Impeachment Court of Monday, January
15, Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.
Resolved, further, That the records of the Impeachment Court including the second
envelope be transferred to the Archives of the Senate for proper safekeeping and
preservation in accordance with the Rules of the Senate. Disposition and retrieval
thereof shall be made only upon written approval of the Senate President.
Resolved, finally. That all parties concerned be furnished copies of this Resolution.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL, JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate
(5) On February 8, the Senate also passed Resolution No. 84 certifying to the existence of a
vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to
be held simultaneously with the regular election on May 14, 2001 and the senatorial candidate
garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of
Senator Teofisto T. Guingona, Jr.
(6) Both houses of Congress started sending bills to be signed into law by
respondent Arroyo as President.
(7) Despite the lapse of time and still without any functioning Cabinet, without any
recognition from any sector of government, and without any support from the Armed Forces of
the Philippines and the Philippine National Police, the petitioner continues to claim that his
inability to govern is only momentary.
What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the
premise that the inability of petitioner Estrada is no longer temporary. Congress has
clearly rejected petitioners claim of inability.
The question is whether this Court has jurisdiction to review the claim of temporary
inability of petitioner Estrada and thereafter revise the decision of both Houses
of Congress recognizing respondent Arroyo as President of the Philippines. Following Taada v.
Cuenco,[102] we hold that this Court cannot exercise its judicial power for this is an issue in regard
to which full discretionary authorityhas been delegated to the Legislative x x x branch of the
government. Or to use the language in Baker vs. Carr,[103] there is a textually demonstrable
constitutional commitment of the issue to a coordinate political department or a lack of judicially
discoverable and manageable standards for resolving it. Clearly, the Court cannot pass upon
petitioners claim of inability to discharge the powers and duties of the presidency. The question
is political in nature and addressed solely to Congress by constitutional fiat. It is a
political issue which cannot be decided by this Court without transgressing the principle of
separation of powers.
In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully
claim that he is a President on leave on the ground that he is merely unable to govern
temporarily. That claim has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure President made by a co-equal branch of government cannot be reviewed by
this Court.
IV

Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys immunity, the extent of the immunity
Petitioner Estrada makes two submissions: first, the cases filed against him before the
respondent Ombudsman should be prohibited because he has not been convicted in the
impeachment proceedings against him; and second, he enjoys immunity from all kinds of suit,
whether criminal or civil.
Before resolving petitioners contentions, a revisit of our legal history on executive immunity
will be most enlightening. The doctrine of executive immunity in this jurisdiction emerged as a
case law. In the 1910 case of Forbes, etc. vs. Chuoco tiaco and Crossfield,[104] the respondent
Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the
Philippine Islands, J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret
Service of the City of Manila, respectively, for damages for allegedly conspiring to deport him to
China. In granting a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held:
The principle of nonliability, as herein enunciated, does not mean that the judiciary
has no authority to touch the acts of the Governor-General; that he may, under cover
of his office, do what he will, unimpeded and unrestrained. Such a construction would
mean that tyranny, under the guise of the execution of the law, could walk defiantly
abroad, destroying rights of person and of property, wholly free from interference of
courts or legislatures. This does not mean, either, that a person injured by the
executive authority by an act unjustifiable under the law has no remedy, but must
submit in silence. On the contrary, it means, simply, that the Governor-General, like
the judges of the courts and the members of the Legislature, may not be personally
mulcted in civil damages for the consequences of an act executed in the performance
of his official duties. The judiciary has full power to, and will, when the matter is
properly presented to it and the occasion justly warrants it, declare an act of the
Governor-General illegal and void and place as nearly as possible in status quo any
person who has been deprived his liberty or his property by such act. This remedy is
assured to every person, however humble or of whatever country, when his personal
or property rights have been invaded, even by the highest authority of the state. The
thing which the judiciary can not do is mulct the Governor-General personally in
damages which result from the performance of his official duty, any more that it can a
member of the Philippine Commission or the Philippine Assembly. Public policy
forbids it.
Neither does this principle of nonliability mean that the chief executive may not be
personally sued at all in relation to acts which he claims to perform as such
official. On the contrary, it clearly appears from the discussion heretofore had,
particularly that portion which touched the liability of judges and drew an analogy
between such liability and that of the Governor-General, that the latter is liable when
he acts in a case so plainly outside of his power and authority that he can not be said
to have exercise discretion in determining whether or not he had the right to act. What
is held here is that he will be protected from personal liability for damages not only
when he acts within his authority, but also when he is without authority, provided he
actually used discretion and judgment, that is, the judicial faculty, in determining
whether he had authority to act or not. In other words, he is entitled to protection in
determining the question of his authority. If he decide wrongly, he is still protected
provided the question of his authority was one over which two men, reasonably
qualified for that position, might honestly differ; but he is not protected if the lack of
authority to act is so plain that two such men could not honestly differ over its
determination. In such case, he acts, not as Governor-General but as a private
individual, and, as such, must answer for the consequences of his act.
Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted
immunity from suit, viz: x x x. Action upon important matters of state delayed; the time and
substance of the chief executive spent in wrangling litigation; disrespect engendered for the
person of one of the highest officials of the State and for the office he occupies; a tendency to
unrest and disorder; resulting in a way, in a distrust as to the integrity of government itself.[105]
Our 1935 Constitution took effect but it did not contain any specific provision on
executive immunity. Then came the tumult of the martial law years under the late President
Ferdinand E. Marcos and the 1973 Constitution was born. In 1981, it was amended and one of
the amendments involved executive immunity. Section 17, Article VII stated:
The President shall be immune from suit during his tenure. Thereafter, no suit
whatsoever shall lie for official acts done by him or by others pursuant to his specific
orders during his tenure.
The immunities herein provided shall apply to the incumbent President referred to in
Article XVII of this Constitution.
In his second Vicente G. Sinco Professional Chair Lecture entitled, Presidential Immunity And
All The Kings Men: The Law Of Privilege As A Defense To Actions For
Damages,[106] petitioners learned counsel, former Dean of the UP college of Law, Atty. Pacifico
Agabin, brightlined the modifications effected by this constitutional amendment on the existing
law on executive privilege. To quote his disquisition:
In the Philippines, though, we sought to do the Americans one better by enlarging and
fortifying the absolute immunity concept. First, we extended it to shield the President
not only from civil claims but also from criminal cases and other claims. Second, we
enlarged its scope so that it would cover even acts of the President outside the scope
of official duties. And third, we broadened its coverage so as to include not only the
President but also other persons, be they government officials or private individuals,
who acted upon orders of the President. It can be said that at that point most of us
were suffering from AIDS (or absolute immunity defense syndrome).
The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept
of executive immunity in the 1973 Constitution. The move was led by then Member of
Parliament, now Secretary of Finance, Alberto Romulo, who argued that the after incumbency
immunity granted to President Marcos violated the principle that a public office is a public
trust. He denounced the immunity as a return to the anachronism the king can do no
wrong.[107] The effort failed.
The 1973 Constitution ceased to exist when President Marcos was ousted from office by the
People Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not
reenact the executive immunity provision of the 1973 Constitution. The
following explanation was given by delegate J. Bernas, viz: [108]

Mr. Suarez. Thank you.


The last question is with reference to the committees omitting in the draft proposal the
immunity provision for the President. I agree with Commissioner Nolledo that the
Committee did very well in striking out this second sentence, at the very least, of the
original provision on immunity from suit under the 1973 Constitution. But would the
Committee members not agree to a restoration of at least the first sentence that the
President shall be immune from suit during his tenure, considering that if we do not
provide him that kind of an immunity, he might be spending all his time facing
litigations, as the President-in-exile in Hawaii is now facing litigations almost daily?
Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.
Mr. Suarez. So there is no need to express it here.
Fr. Bernas. There is no need. It was that way before. The only innovation made by the
1973 Constitution was to make that explicit and to add other things.
Mr. Suarez. On that understanding, I will not press for any more query, Madam
President.
I thank the Commissioner for the clarification.
We shall now rule on the contentions of petitioner in the light of this history. We reject his
argument that he cannot be prosecuted for the reason that he must first be convicted in the
impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the
walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on
February 7, 2001, the Senate passed Senate Resolution No. 83 Recognizing that the
Impeachment Court is Functus Officio.[109] Since the Impeachment Court is now functus officio, it
is untenable for petitioner to demand that he should first be impeached and then convicted before
he can be prosecuted. The plea if granted, would put a perpetual bar against his
prosecution. Such a submission has nothing to commend itself for it will place him in a better
situation than a non-sitting President who has not been subjected to impeachment proceedings
and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional
Commission make it clear that when impeachment proceedings have become moot due to the
resignation of the President, the proper criminal and civil cases may already be filed against
him, viz:[110]
xxx
Mr. Aquino. On another point, if an impeachment proceeding has been filed
against the President, for example, and the President resigns before judgment of
conviction has been rendered by the impeachment court or by the body, how does
it affect the impeachment proceeding? Will it be necessarily dropped?
Mr. Romulo. If we decide the purpose of impeachment to remove one from office,
then his resignation would render the case moot and academic. However, as the
provision says, the criminal and civil aspects of it may continue in the ordinary
courts.
This is in accord with our ruling in In re: Saturnino Bermudez[111]that incumbent
Presidents are immune from suit or from being brought to court during the period of their
incumbency and tenure but not beyond. Considering the peculiar circumstance that the
impeachment process against the petitioner has been aborted and thereafter he lost the
presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal
prosecution before the Ombudsman that he be convicted in the impeachment proceedings. His
reliance in the case of Lecaroz vs. Sandiganbayan[112] and related cases[113]are inapropos for they
have a different factual milieu.
We now come to the scope of immunity that can be claimed by petitioner as a non-
sitting President. The cases filed against petitioner Estrada are criminal in character. They
involve plunder, bribery and graft and corruption. By no stretch of the imagination can
these crimes, especially plunder which carries the death penalty, be covered by the allege
mantle of immunity of a non-sitting president.Petitioner cannot cite any decision of this
Court licensing the President to commit criminal acts and wrapping him with post-tenure
immunity from liability. It will be anomalous to hold that immunity is an inoculation from
liability for unlawful acts and omissions. The rule is that unlawful acts of public officials
are not acts of the State and the officer who acts illegally is not acting as such but stands in
the same footing as any other trespasser.[114] Indeed, a critical reading of current literature on
executive immunity will reveal a judicial disinclination to expand the
privilege especially when it impedes the search for truth or impairs the vindication of a
right. In the 1974 case of US v. Nixon,[115] US President Richard Nixon, a sitting President, was
subpoenaed to produce certain recordings and documents relating to his conversations with aids
and advisers. Seven advisers of President Nixons associates were facing charges of conspiracy to
obstruct justice and other offenses which were committed in a burglary of the Democratic
National Headquarters in Washingtons Watergate Hotel during the 1972 presidential
campaign. President Nixon himself was named an unindicted co-conspirator. President Nixon
moved to quash the subpoena on the ground, among others, that the President was not subject to
judicial process and that he should first be impeached and removed from office before he could
be made amenable to judicial proceedings. The claim was rejected by the US Supreme Court. It
concluded that when the ground for asserting privilege as to subpoenaed materials sought for use
in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail
over the fundamental demands of due process of law in the fair administration of criminal
justice. In the 1982 case of Nixon v. Fitzgerald,[116] the US Supreme Court further held that the
immunity of the President from civil damages covers only official acts. Recently, the US
Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v.
Jones[117] where it held that the US Presidents immunity from suits for money damages arising
out of their official acts is inapplicable to unofficial conduct.
There are more reasons not to be sympathetic to appeals to stretch the scope of
executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is
that a public office is a public trust.[118] It declared as a state policy that (t)he State shall
maintain honesty and integrity in the public service and take positive and effective measures
against graft and corruption."[119] It ordained that (p)ublic officers and employees must at all
times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest lives.[120] It set the rule that (t)he right
of the State to recover properties unlawfully acquired by public officials or employees, from
them or from their nominees or transferees, shall not be barred by prescription, laches or
estoppel.[121] It maintained the Sandiganbayan as an anti-graft court.[122] It created the office of the
Ombudsman and endowed it with enormous powers, among which is to "(i)nvestigate on its
own, or on complaint by any person, any act or omission of any public official, employee, office
or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient.[123] The Office of the Ombudsman was also given fiscal autonomy.[124] These
constitutional policies will be devalued if we sustain petitioners claim that a non-sitting
president enjoys immunity from suit for criminal acts committed during his incumbency.
V

Whether or not the prosecution of petitioner Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting
the investigation of the cases filed against him due to the barrage of prejudicial publicity on his
guilt. He submits that the respondent Ombudsman has developed bias and is all set to file the
criminal cases in violation of his right to due process.
There are two (2) principal legal and philosophical schools of thought on how to deal with
the rain of unrestrained publicity during the investigation and trial of high profile
cases.[125] The British approach the problem with the presumption that publicity will prejudice
a jury. Thus, English courts readily stay and stop criminal trials when the right of an accused to
fair trial suffers a threat.[126] The American approach is different. US courts assume
a skeptical approach about the potential effect of pervasive publicity on the right of an accused
to a fair trial. They have developed different strains of tests to resolve this issue, i.e., substantial
probability of irreparable harm, strong likelihood, clear and present danger, etc.
This is not the first time the issue of trial by publicity has been raised in this Court to stop
the trials or annul convictions in high profile criminal cases.[127] In People vs. Teehankee,
Jr.,[128] later reiterated in the case of Larranaga vs. Court of Appeals, et al.,[129] we laid down
the doctrine that:
We cannot sustain appellants claim that he was denied the right to impartial trial due
to prejudicial publicity. It is true that the print and broadcast media gave the case at
bar pervasive publicity, just like all high profile and high stake criminal trials. Then
and now, we now rule that the right of an accused to a fair trial is not incompatible to
a free press. To be sure, responsible reporting enhances an accuseds right to a fair trial
for, as well pointed out, a responsible press has always been regarded as the
handmaiden of effective judicial administration, especially in the criminal field x x
x. The press does not simply publish information about trials but guards against the
miscarriage of justice by subjecting the police, prosecutors, and judicial processes to
extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The
mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage
does not by itself prove that the publicity so permeated the mind of the trial judge and
impaired his impartiality. For one, it is impossible to seal the minds of members of the
bench from pre-trial and other off-court publicity of sensational criminal cases. The
state of the art of our communication system brings news as they happen straight to
our breakfast tables and right to our bedrooms. These news form part of our everyday
menu of the facts and fictions of life. For another, our idea of a fair and impartial
judge is not that of a hermit who is out of touch with the world. We have not installed
the jury system whose members are overly protected from publicity lest they lose their
impartiality. x x x x x x x x x. Our judges are learned in the law and trained to
disregard off-court evidence and on-camera performances of parties to a
litigation. Their mere exposure to publications and publicity stunts does not per
se fatally infect their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the trial
judge due to the barrage of publicity that characterized the investigation and trial of
the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of
possibility of prejudice and adopted the test of actual prejudice as we ruled that to
warrant a finding of prejudicial publicity, there must be allegation and proof that the
judges have been unduly influenced, not simply that they might be, by the barrage of
publicity. In the case at bar, the records do not show that the trial judge
developed actual bias against appellant as a consequence of the extensive media
coverage of the pre-trial and trial of his case. The totality of circumstances of the
case does not prove that the trial judge acquired a fixed opinion as a result of
prejudicial publicity which is incapable if change even by evidence presented during
the trial. Appellant has the burden to prove this actual bias and he has not discharged
the burden.
We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de
Leon, etc.[130] and its companion cases. viz.:
Again, petitioners raise the effect of prejudicial publicity on their right to due process
while undergoing preliminary investigation. We find no procedural impediment to its
early invocation considering the substantial risk to their liberty while undergoing a
preliminary investigation.
xxx
The democratic settings, media coverage of trials of sensational cases cannot be
avoided and oftentimes, its excessiveness has been aggravated by kinetic
developments in the telecommunications industry. For sure, few cases can match the
high volume and high velocity of publicity that attended the preliminary investigation
of the case at bar. Our daily diet of facts and fiction about the case continues unabated
even today. Commentators still bombard the public with views not too many of which
are sober and sublime. Indeed, even the principal actors in the case the NBI, the
respondents, their lawyers and their sympathizers have participated in this media
blitz. The possibility of media abuses and their threat to a fair trial notwithstanding,
criminal trials cannot be completely closed to the press and public. Inn the seminal
case of Richmond Newspapers, Inc. v. Virginia, it was wisely held:
xxx
(a) The historical evidence of the evolution of the criminal trial in Anglo-American
justice demonstrates conclusively that the time this Nations organic laws were
adopted, criminal trials both here and in England had long been presumptively open,
thus giving assurance that the proceedings were conducted fairly to all concerned and
discouraging perjury, the misconduct of participants, or decisions based on secret bias
or partiality. In addition, the significant community therapeutic value of public trials
was recognized: when a shocking crime occurs, a community reaction of outrage and
public protest often follows, and thereafter the open processes of justice serve an
important prophylactic purpose, providing an outlet for community concern, hostility,
and emotion. To work effectively, it is important that societys criminal process satisfy
the appearance of justice, Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct
11, which can best be provided by allowing people to observe such process. From this
unbroken, uncontradicted history, supported by reasons as valid today as in centuries
past, it must be concluded that a presumption of openness inheres in the very nature of
a criminal trial under this Nations system of justice, Cf., e.g., Levine v. United States,
362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication on
matters relating to the functioning of government. In guaranteeing freedoms such as
those of speech and press, the First Amendment can be read as protecting the right of
everyone to attend trials so as give meaning to those explicit guarantees; the First
Amendment right to receive information and ideas means, in the context of trials, that
the guarantees of speech and press, standing alone, prohibit government from
summarily closing courtroom doors which had long been open to the public at the
time the First Amendment was adopted. Moreover, the right of assembly is also
relevant, having been regarded not only as an independent right but also as a catalyst
to augment the free exercise of the other First Amendment rights with which it was
deliberately linked by the draftsmen. A trial courtroom is a public place where the
people generally and representatives of the media have a right to be present, and
where their presence historically has been thought to enhance the integrity and quality
of what takes place.
(c) Even though the Constitution contains no provision which by its terms guarantees
to the public the right to attend criminal trials, various fundamental rights, not
expressly guaranteed, have been recognized as indispensable to the enjoyment of
enumerated rights. The right to attend criminal trial is implicit in the guarantees of the
First Amendment: without the freedom to attend such trials, which people have
exercised for centuries, important aspects of freedom of speech and of the press could
be eviscerated.
Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
in Martelino, et al. vs. Alejandro, et al.,we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly
influenced, not simply that they might be, by the barrage of publicity. In the case at
bar, we find nothing in the records that will prove that the tone and content of the
publicity that attended the investigation of petitioners fatally infected the fairness and
impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of
publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown
and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief
State Prosecutor and Senior State Prosecutors. Their long experience in criminal
investigation is a factor to consider in determining whether they can easily be blinded
by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable
indicia of bias for it does not appear that they considered any extra-record evidence
except evidence properly adduced by the parties. The length of time the investigation
was conducted despite its summary nature and the generosity with which they
accommodated the discovery motions of petitioners speak well of their fairness. At no
instance, we note, did petitioners seek the disqualification of any member of the DOJ
Panel on the ground of bias resulting from their bombardment of prejudicial publicity.
(emphasis supplied)
Applying the above ruling, we hold that there is not enough evidence to warrant this Court to
enjoin the preliminary investigation of the petitioner by the respondent
Ombudsman. Petitioner needs to offer more than hostile headlines to discharge his burden of
proof.[131] He needs to show more weighty social science evidence to successfully prove the
impaired capacity of a judge to render a bias-free decision. Well to note, the cases against the
petitioner are still undergoing preliminary investigation by a special panel of prosecutors in the
office of the respondent Ombudsman. No allegation whatsoever has been made by the petitioner
that the minds of the members of this special panel have already been infected by bias because of
the pervasive prejudicial publicity against him. Indeed, the special panel has yet to come out with
its findings and the Court cannot second guess whether its recommendation will be unfavorable
to the petitioner.
The records show that petitioner has instead charged respondent Ombudsman himself with
bias. To quote petitioners submission, the respondent Ombudsman has been influenced by the
barrage of slanted news reports, and he has buckled to the threats and pressures directed at him
by the mobs.[132] News reports have also been quoted to establish that the respondent Ombudsman
has already prejudged the cases of the petitioner[133]and it is postulated that the prosecutors
investigating the petitioner will be influenced by this bias of their superior.
Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy
of the news reports referred to by the petitioner cannot be the subject of judicial notice by this
Court especially in light of the denials of the respondent Ombudsman as to his alleged prejudice
and the presumption of good faith and regularity in the performance of official duty to which he
is entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the
prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules
of Criminal Procedure, give investigating prosecutors the independence to make their own
findings and recommendations albeit they are reviewable by their superiors.[134] They can be
reversed but they can not be compelled to change their recommendations nor can they be
compelled to prosecute cases which they believe deserve dismissal. In other words, investigating
prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent
Ombudsman resolves to file the cases against the petitioner and the latter believes that the
finding of probable cause against him is the result of bias, he still has the remedy of assailing it
before the proper court.
VI.

Epilogue

A word of caution to the hooting throng. The cases against the petitioner will now acquire a
different dimension and then move to a new stage - - - the Office of the Ombudsman.
Predictably, the call from the majority for instant justice will hit a higher decibel while the
gnashing of teeth of the minority will be more threatening. It is the sacred duty of the respondent
Ombudsman to balance the right of the State to prosecute the guilty and the right of an accused
to a fair investigation and trial which has been categorized as the most fundamental of all
freedoms.[135] To be sure, the duty of a prosecutor is more to do justice and less to prosecute. His
is the obligation to insure that the preliminary investigation of the petitioner shall have a circus-
free atmosphere. He has to provide the restraint against what Lord Bryce calls the impatient
vehemence of the majority. Rights in a democracy are not decided by the mob whose judgment
is dictated by rage and not by reason. Nor are rights necessarily resolved by the power of number
for in a democracy, the dogmatism of the majority is not and should never be the definition of
the rule of law. If democracy has proved to be the best form of government, it is because it has
respected the right of the minority to convince the majority that it is wrong. Tolerance of
multiformity of thoughts, however offensive they may be, is the key to mans progress from the
cave to civilization. Let us not throw away that key just to pander to some peoples prejudice.
IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent
Gloria Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.
SO ORDERED.
Bellosillo, Melo, Quisumbing, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.
Davide, Jr., C.J., no part in view of expression given in the open court and in the extended
explanation.
Vitug, J., see concurring opinion.
Kapunan, J., concur in the result and reserve the right to write a separate opinion.
Mendoza, J., see concurring opinion.
Panganiban, J., no part per letter of Inhibition dated Feb. 15, 2000 mention in footnote 51 of
ponencia.
Pardo, J., in the result; believes that petitioner was constrained to resign and reserve his vote
in immunity from suit
Buena, J., in the result.
Ynares-Santiago, J., concur in the result and reserve the filing of a separate opinion.
Sandoval-Gutierrez, J., concur in the result and reserve the right to write a separate opinion.

[1]
Philippine Daily Inquirer (PDI), October 5, 2000, pp. A1 and A17.
[2]
PDI, October 6, 2000, pp. A1 and A18.
[3]
Ibid., October 12, 2000, pp. A1 and A17.
[4]
Ibid., October 14, 2000, p. A1.
[5]
Ibid., October 18, 2000, p. A1.
[6]
Ibid., October 13, 2000, pp. A1 and A21.
[7]
Ibid., October 26, 2000, p. A1.
[8]
Ibid., November 2, 2000, p. A1.
[9]
Ibid., November 3, 2000, p. A1.
[10]
Ibid., November 4, 2000, p. A1.
[11]
The complaint for impeachement was based on the following grounds: bribery, graft and corruption, betrayal of
public trust, and culpable violation of the Cnstitution.
[12]
Ibid., November 14, 2000, p. A1.
[13]
Ibid., November 21, 2000, p. A1.
[14]
Ibid., December 8, 2000, p. A1.
[15]
Ibid., December 23, 2000, pp. A1 and A19.
[16]
Ibid., January 12, 2001, p. A1.
[17]
Those who voted yes to open the envelop were: Senators Pimentel, Guingona, Drilon, Cayetano, Roco, Legarda,
Magsaysay, Flavier, Biazon, Osmea III. Those who vote no were Senators Ople, Defensor-Santiago, John Osmea,
Aquino-Oreta, Coseteng, Enrile, Honasan, Jaworski, Revilla, Sotto III and Tatad.
[18]
Philippine Star, January 17, 2001, p. 1.
[19]
Ibid., January 18, 2001, p. 4.
[20]
Ibid., p. 1.
[21]
Ibid., January 19, 2001, pp. 1 and 8.
[22]
Eraps Final Hours Told by Edgardo Angara, (hereinafter referred to as Angara Diary), PDI, February 4, 2001, p.
A16.
[23]
Philippine Star, January 20, 2001, p. 4.
[24]
PDI, February 4, 2001, p. A16.
[25]
Philippine Star, January 20, 2001, pp. 1 and 11.
[26]
Ibid., January 20, 2001, p. 3.
[27]
PDI, February 5, 2001, pp. A1 and A6.
[28]
Philippine Star, January 21, 2001, p. 1.
[29]
PDI, February 6, 2001, p. A12.
[30]
Annex A, DOJ-OSG, Joint Comment; Rollo, G.R. Nos. 146710-15, p. 288.
[31]
Annex A-1, Petition, G.R. Nos. 146710-15; Rollo, p. 34.
[32]
Ibid.
[33]
Annex A, Petition, G.R. Nos. 146710-15; Rollo, p. 33.
[34]
Philippine Star, January 21, 2001, p. 1; January 23, 2001, pp. 1 and 4; January 24, 2001, p. 3; PDI, January 25,
2001, pp. A1 and A15.
[35]
Philippine Star, January 24, 2001, p. 1.
[36]
PDI, January 25, 2001, p. 1.
[37]
Ibid., p. 2.
[38]
Annex C, DOJ-OSG Joint Comment; Rollo, GR Nos. 146710-15 p. 290.
[39]
Annex D, id; ibid., p. 292.
[40]
PDI, January 27, 2001, p. 1.
[41]
PDI, February 13, 2001, p. A2.
[42]
Philippine Star, February 13, 2001, p. A2.
[43]
Annex E, id.; ibid., p. 295.
[44]
PDI, February 8, 2001, pp. A1 & A19.
[45]
Annex F, id.; ibid., p. 297.
[46]
PDI, February 10, 2001, p. A2.
[47]
Annex G., id.; ibid., p. 299.
[48]
PDI, February 8, 2001, p. A19.
[49]
Philippine Star, February 3, 2001, p. 4.
[50]
Acceptance of Gloria is Nationwide, Mahar Mangahas, Manila Standard, February 16, 2001, p. 14.
[51]
See The Chief Justices Extended Explanation for His Voluntary Inhibition; Rollo, GR Nos. 146710-15, pp. 525-
527.
[52]
See Letter of Inhibition of Associate Justice Panganiban; Rollo, GR No. 146738, pp. 120-125.
[53]
Rollo, G.R. No. 146738, p. 134.
[54]
Leonard de Vera and Dennis Funa; see their Memorandum, pp. 16-27; Rollo, GR Nos. 146710-15, Vol. III, pp.
809-820.
[55]
Gunther and Sullivan, Constitutional Law, 13th ed., pp. 45-46.
[56]
369 US 186, 82 S.Ct. 691, 7 L ed 2d 663, 686 (1962).
[57]
See e.g., Integrated Bar of the Philippines v. Hon. Zamora, et al., GR No. 141284, 15 August 2000;
Miranda v. Aguirre, 314 SCRA 603 (1999); Santiago v. Guingona, 298 SCRA 756 (1998); Tatad v. Secretary of the
Department of Energy, 281 SCRA 330 (1997); Marcos v. Manglapus, 177 SCRA 668 (1989);
Gonzales v. COMELEC, 129 Phil 7 (1967); Mabanag v. Lopez Vito, 78 Phil 1 (1947); Avelino v. Cuenco 83 Phil.
17 (1949); Vera v. Avelino, 77 Phil 192 (1946); Alejandrino v.Quezon, 46 Phil 83 (1942).
[58]
103 Phil 1051, 1068 (1957).
[59]
Section 1, Article VIII, 1987 Constitution.
[60]
Note that the early treatises on Constitutional Law are discourses on limitations of power typical of which is,
Cooleys Constitutional Limitations.
[61]
Joint Resolution, Lawyers League for a Better Philippines and/or Oliver A. Lozano v. Pres. Corazon C. Aquino,
et al., GR No. 73748; Peoples Crusade for Supremacy of the Constitution, etc. v. Mrs. Cory Aquino, et al., GR No.
73972; and Councilor Clifton U. Ganay v. Corazon C. Aquino, et al., GR No. 73990, May 22, 1986.
[62]
Letter of Associate Justice Reynato S. Puno, 210 SCRA 597 [1992].
[63]
Proclamation No. 3. (1986)
[64]
It states:
I, Gloria Macapagal-Arroyo, Vice President of the Philippines, do solemnly swear that I will faithfully and
conscientiously fulfill my duties as President of the Philippines, preserve and defend its Constitution, execute its
laws, do justice to every man, and consecrate myself to the service of the nation.
So help me God.
(Annex I, Comment of the Ombudsman; Rollo, GR Nos. 146710-15 Vol. II, p. 332)
[65]
See Filipinas Despues de Cien Aos (The Philippines a Century Hence), p. 62.
[66]
The guaranty was taken from Amendment I of the US Constitution which provides: Congress shall make no law
respecting an establishment of religion or prohibiting the free exercise thereof of abridging the freedom of speech, or
of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of
grievance.
[67]
See section 8, Article IV.
[68]
See section 9, Article IV.
[69]
Emerson, The System of Freedom of Expression, 1970 ed., p. 6, et seq.
[70]
Ibid., See also concurring opinion of Justice Branders in Whitney v. California (74 US 357, 375-76) where he
said ... the greatest menace to freedom is an inert people...
[71]
307 US 496 (1939).
[72]
Chafee, Jr., Free Speech in the United States, 1946 ed., pp. 413-415, 421.
[73]
260 SCRA 798 (1996).
[74]
Section 1, Article II of the 1987 Constitution reads:

The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.
[75]
Infra at 26.
[76]
Infra at 41.
[77]
1 Cranch (5 US) 137, 2 L ed 60 (1803).
[78]
Gonzales v. Hernandez, 2 SCRA 228 (1961).
[79]
See its February 4, 5, and 6, 2001 issues.
[80]
PDI, February 4, 2001, p. A1.
[81]
Ibid.
[82]
Ibid.
[83]
Ibid.
[84]
Ibid.
[85]
Ibid.
[86]
PDI, February 5, 2001, p. A1.
[87]
Ibid., p. A-1.
[88]
Ibid.
[89]
PDI, February 5, 2001, p. A6.
[90]
PDI, February 6, 2001, p. A1.
[91]
In the Angara Diary which appeared in the PDI issue of February 5, 2001, Secretary Angara stated that the letter
came from Asst. Secretary Boying Remulla; that he and Political Adviser Banayo opposed it; and that PMS head
Macel Fernandez believed that the petitioner would not sign the letter.
[92]
Congressional Record, 4th Congress, 2nd Session, March 4, 1959, pp. 603-604.
[93]
Id., May 9, 1959, p. 1988.
[94]
Section 18 (2), Article III of the 1987 Constitution provides: No involuntary servitude in any form shall exist
except as a punishment for a crime whereof the party shall have been duly convicted.
[95]
Reply Memorandum, p. 3; Rollo, G.R. Nos. 146710-15, Vol. IV.
[96]
House Resolution No. 175, 11th Congress, 3rd Session (2001), reads:
RESOLUTION EXPRESSING THE FULL SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE
ADMINISTRATION OF HER EXCELLENCY, GLORIA MACAPAGAL-ARROYO, PRESIDENT OF THE
PHILIPPINES
WHEREAS, on January 20, 2001, Vice President Gloria Macapagal-Arroyo was sworn in as the 14th President of
the Philippines;
WHEREAS, her ascension to the highest office of the land under the dictum, the voice of the people is the voice of
God establishes the basis of her mandate on integrity and morality in government;
WHEREAS, the House of Representatives joins the church, youth, labor and business sectors in fully supporting the
Presidents strong determination to succeed;
WHEREAS, the House of representative is likewise one with the people in supporting President Gloria Macapagal-
Arroyos call to start the healing and cleansing process for a divided nation in order to build an edifice of peace,
progress and economic stability for the country: Now, therefore, be it Resolved by the House of Representatives, To
express its full support to the administration of Her Excellency, Gloria Macapagal-Arroyo, 14th President of the
Philippines.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by House of Representatives on January 24, 2001.
(Sgd.) Roberto P. Nazareno
Secretary General
[97]
11th Congress, 3rd Session (2001).
[98]
11th Congress, 3rd Session (2001).
[99]
Annex 2, Comment of Private Respondents De Vera, et al.; Rollo, GR No. 146710-15, Vol. II, p. 231.
[100]
11th Congress, 3rd Session (2001).
[101]
11th Congress, 3rd Session (2001).
[102]
103 Phil 1051, 1067 (1957).
[103]
Baker vs. Carr, supra at 686 headnote 29.
[104]
16 Phil 534 (1910).
[105]
The logical basis for executive immunity from suit was originally founded upon the idea that the King can do
no wrong. [R.J. Gray, Private Wrongs of Public Servants, 47 CAL. L. REV.. 303 (1959)]. The concept thrived at the
time of absolute monarchies in medieval England when it was generally accepted that the seat of sovereignty and
governmental power resides in the throne. During that historical juncture, it was believed that allowing the King to
be sued in his court was a contradiction to the sovereignty of the King.
With the development of democratic thoughts and institutions, this kind of rationalization eventually lost its moral
force. In the United States, for example, the common law maxim regarding the Kings infallibility had limited
reception among the framers of the Constitution. [J. Long, How to Sue the President: A Proposal for Legislation
Establishing the Extent of Presidential Immunity, 30 VAL. U.L. REV. 283 (1995)]. Still, the doctrine of presidential
immunity found its way of surviving in modern political times, retaining both its relevance and vitality. The
privilege, however, is now justified for different reasons. First, the doctrine is rooted in the constitutional tradition of
separation of powers and supported by history. [Nixon v. Fitzgerald, 451 U.S. 731 (1982)]. The separation of powers
principle is viewed as demanding the executives independence from the judiciary, so that the President should not be
subject to the judiciarys whim. Second, by reason of public convenience, the grant is to assure the exercise of
presidential duties and functions free from any hindrance or distraction, considering that the Chief Executive is a job
that, aside from requiring all of the office-holders time, also demands undivided attention. [Soliven v. Makasiar, 167
SCRA 393 (1988)]. Otherwise, the time and substance of the chief executive will be spent on wrangling litigation,
disrespect upon his person will be generated, and distrust in the government will soon follow.[Forbes v. Chouco
Tiaco, 16 Phil. 534 (1910)]. Third, on grounds of public policy, it was recognized that the gains from discouraging
official excesses might be more than offset by the losses from diminished zeal [Agabin, op. cit., at 121.]. Without
immunity, the president would de disinclined to exercise decision-making functions in a manner that might
detrimentally affect an individual or group of individuals. [See H. Schnechter, Immunity of Presidential Aides from
Criminal Prosecution, 57 Geo. Wash. L. Rev. 779 (1989)].1
[106]
62 Phil. L.J. 113 (1987).
[107]
See Bulletin Today, August 16, 1984, p. 1; December 18, 1984, p. 7.
[108]
Records of the Constitutional Commission of 1986, Vol. II, Records, p. 423, July 29, 1986.
[109]
Supra at 47.
[110]
Records of Constitutional Commission, Vol. II, July 28, 1986, p. 355.
[111]
145 SCRA 160 (1986).
[112]
128 SCRA 324 (1984).
[113]
In Re: Raul Gonzales, 160 SCRA 771 (1988); Cuenco v. Fernan, 158 29 (1988); and Jarque v. Desierto, A.C.
No. 4509, 250 SCRA xi-xiv (1995).
[114]
Wallace v. Board of Education, 280 Ala. 635, 197 So 2d 428 (1967).
[115]
418 US 683, 94 S. Ct. 3090, 41 L ed 1039 (1974).
[116]
457 US 731, 73 L ed. 349, 102 S Ct. 2690 (1982).
[117]
520 U.S. 681 (1997).
[118]
See section 1, Art. XI of the 1987 Constitution.
[119]
See section 27, Art. II of the 1987 Constitution.
[120]
See section 1, Art. XI of the 1987 Constitution.
[121]
See section 15, Art. XI of the 1987 Constitution.
[122] See section 4, Art. XI of the 1987 Constitution.

[123]
See section 13 (1), Art. XI of the 1987 Constitution.
[124]
See section 14, Art. XI of the 1987 Constitution.
[125]
See Brandwood, Notes: You Say Fair Trial and I say Free Press: British and American Approaches to Protecting
Defendants Rights in High Profile Trials, NYU Law Rev., Vol. 75, No. 5, pp. 1412-1451 (November 2000).
[126]
Id., p. 1417.
[127]
See e.g., Martelino, et al. V. Alejandro, et al., 32 SCRA 106 (1970); People v. Teehankee, 249 SCRA 54 (1995).
[128]
249 SCRA 54 (1995).
[129]
287 SCRA 581 at pp. 596-597 (1988).
[130]
247 SCRA 652 (1995).
[131]
Extensive publicity did not result in the conviction of well known personalities. E.g., OJ Simpson, John
Mitchell, William Kennedy Smith and Imelda Marcos.
[132]
Memorandum, p. 25; Rollo, GR Nos. 146710-15, Vol. III, p. 647.
[133]
Memorandum, pp. 29-30; Rollo, GR Nos. 146710-15, Vol. III, pp. 572-573.
[134]
See section 4, Rule 112.
[135]
Estes v. Texas, 381 US 532, 540 (1965).

THIRD DIVISION
G.R. No. 190912, January 12, 2015
GARY FANTASTICO AND ROLANDO VILLANUEVA, Petitioners, v. ELPIDIO MALICSE, SR. AND
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
For this Court's consideration is the Petition for Review on Certiorari under Rule 45 of the 1997 Rules of
1

Civil Procedure, dated January 20, 2010 , of petitioners Gary Fantastico and Rolando Villanueva assailing the
Decision2 dated August 31, 2007 and Resolution3 dated January 7, 2010 of the Court of Appeals (CA) in CA-
G. R. CR. No. 31719, affirming the Decision4 dated March 31, 2008 of the Regional Trial Court, Branch 11,
Manila, in Criminal Case No. 93-127049, finding petitioners guilty of attempted murder.

The following are the antecedents:

On the afternoon of June 27, 1993, Elpidio Malicse, Sr. (Elpidio) was outside the house of his sister Isabelita
Iguiron (Isabelita) in Pandacan, Manila when all of a sudden, he heard Isabelita's son, Winston, throwing
invectives at him. Thus, Elpidio confronted Isabelita but she also cursed him, which prompted the former to
slap the latter. On that occasion, Elpidio was under the influence of alcohol.

The Barangay Chairman heard what transpired and went to the place where the commotion was taking place
in order to pacify those who were involved. Elpidio was eventually persuaded to go home where he drank
some coffee. Thereafter, Elpidio went back to the house of Isabelita to offer reconciliation. On his way there,
he passed by the house of Kagawad Andy Antonio and requested the latter to accompany him, but was
instead told to go back home, leaving Elpidio to proceed alone.

Upon reaching Isabelita's house, Elpidio saw the former's son, Titus Iguiron (Titus) and her son-in-law Gary
Fantastico (Gary) and asked the two where he can find their parents. Titus and Gary responded, �putang
ina mo, and kulit mo, lumayas ka, punyeta ka.�

In his anger with the response of Titus and Gary, Elpidio kicked the door open and saw Isabelita's elder son,
Salvador Iguiron (Salvador) behind the door holding a rattan stick or arnis. Salvador hit Elpidio on the right
side of his head that forced the latter to bow his head but Salvador delivered a second blow that hit Elpidio
on the right eyebrow. Salvador attempted to hit Elpidio for the third time but the latter got hold of the rattan
stick and the two wrestled on the floor and grappled for the possession of the same rattan stick. Then Titus
ran towards the two and sprayed something on Elpidio's face. Not being able to free himself from the
clutches of Salvador and to extricate himself, Elpidio bit Salvador's head.

Gary hit Elpidio on the right side of his head with a tomahawk axe when the latter was about to go out of
the house. Elpidio tried to defend himself but was unable to take the tomahawk axe from Gary. Elpidio
walked away from Titus but Gary, still armed with the tomahawk axe and Salvador, with his arnis, including
Titus, chased him.

Roland (Rolly) Villanueva, without any warning, hit Elpidio on the back of his head with a lead pipe which
caused the latter to fall on the ground. Elpidio begged his assailants to stop, but to no avail. Salvador hit
him countless times on his thighs, legs and knees using the rattan stick. While he was simultaneously being
beaten up by Salvador, Titus, Gary, Rolly, Nestor, Eugene and Tommy, he tried to cover his face with his
arm. Gary hit him with the tomahawk axe on his right leg, between the knees and the ankle of his leg, which
caused the fracture on his legs and knees. Rolly hit Elpidio's head with a lead pipe, while Tommy hit him
with a piece of wood on the back of his shoulder.

Thereafter, a certain �Mang Gil� tried to break them off but Titus and Gary shouted at him: �Huwag
makialam, away ng mag-anak ito� and the two continued to maul Elpidio. The people who witnessed the
incident shouted �maawa na kayo� but they only stopped battering him when a bystander fainted because
of the incident. Elpidio then pretended to be dead. It was then that concerned neighbors approached him
and rushed him to the emergency room of the Philippine General Hospital (PGH).

Thus, a case for Attempted Murder under Article 248, in relation to Article 6 of the Revised Penal Code, was
filed against Salvador Iguiron, Titus Malicse Iguiron, Saligan Malicse Iguiron, Tommy Ballesteros, Nestor
Ballesteros, Eugene Surigao and petitioners Gary Fantastico and Rolando Villanueva. The Information
reads:ChanRobles Vi rtua lawlib rary

That on or about June 27, 1993, in the City of Manila, Philippines, the said accused conspiring and
confederating together and helping one another, did then and there willfully, unlawfully and feloniously, with
intent to kill and with treachery and taking advantage of superior strength, commence the commission of
the crime of murder directly by overt acts, to wit: by then and there hitting the head of Elpidio Malicse, Sr. y
de Leon with a piece of rattan, axe, pipe and a piece of wood and mauling him, but the said accused did not
perform all the acts of execution which should have produced the crime of murder, as a consequence, by
reason of causes other than their own spontaneous desistance, that is, the injuries inflicted upon Elpidio
Malicse, Sr. y de Leon are not necessarily mortal.
They all pleaded �not guilty.� The defense, during trial, presented the following version of the events that
transpired:

Around 4:30 p.m. of June 27, 1993, Salvador was at the second floor of their house when he heard his tenth
son Winston crying while the latter was being castigated by Elpidio. He went down and told Elpidio to come
back the next day to settle. His wife Isabelita called the Barangay Chairman two blocks
away. Barangay Chairman Joseph Ramos and Elpidio's wife and daughter went to the house and Elpidio was
given warm water, but he showered his daughter and Winston with it. Elpidio was brought to his house and
the former told the Barangay Chairman that it was a family problem. Elpidio went back to the house of
Salvador where Titus was sitting on the sofa. Elpidio asked Titus to open the door until the former kicked the
door open. Titus escaped through the open door and Salvador went out of the house because another child
was on the roof, afraid that the said child might fall. Thereafter, Elpidio went to the street.

According to petitioner Gary Fantastico, he was inside their house with his wife and Titus when the incident
occurred. He and his wife ran upstairs, while Titus went out when Elpidio hit the door. Elpidio had a
reputation for hurting people when drunk and Gary learned that Elpidio was brought to the hospital because
he was mauled by the people.

During trial, one of the accused, Salvador Iguiron died. Eventually, the trial court, in a Decision dated March
31, 2008, acquitted Titus Iguiron, Saligan Iguiron and Tommy Ballesteros but found Gary Fantastico and
Rolando Villanueva guilty beyond reasonable doubt for Attempted Murder. The dispositive portion of the said
decision reads:ChanRob les Virtualawl ibra ry

WHEREFORE, the foregoing premises considered, the Court finds Gary Fantastico and Rolando Villanueva
GUILTY of the crime of attempted murder and sentences them to an indeterminate penalty of imprisonment
of eight (8) years and one (1) day as minimum, to ten (10) years as maximum. They are also ordered to
pay the actual damages of P17,300.00 and moral damages of P10,000.00.

Accused Titus Iguiron, Saligan Iguiron and Tommy Ballesteros ACQUITTED.

SO ORDERED.
After their motion for reconsideration was denied, petitioners appealed the case to the CA, but the latter
court affirmed the decision of the RTC and disposed the case as follows: ChanRoblesVirt ualawli bra ry

WHEREFORE, finding no reversible error in the decision appealed from, we hereby AFFIRM the same and
DISMISS the instant appeal.

SO ORDERED.
A motion for reconsideration was filed, but it was denied by the same court.

Hence, the present petition.

Petitioners stated the following arguments: ChanRoblesVirt ualawli bra ry

THE CONCLUSIONS DRAWN BY THE COURT OF APPEALS AND THE TRIAL COURT FROM THE FACTS OF THE
CASE ARE INCORRECT.

THE INFORMATION ITSELF IN THIS CASE DOES NOT ALLEGE ALL THE ELEMENTS AND THE NECESSARY
INGREDIENTS OF THE SPECIFIC CRIME OF ATTEMPTED MURDER.

NOT ALL OF THE ELEMENTS OF ATTEMPTED MURDER ARE PRESENT IN THIS CASE.

THERE IS NO TREACHERY OR ANY OTHER QUALIFYING CIRCUMSTANCE TO SPEAK OF IN THIS CASE.

THE LOWER COURT AND THE COURT OF APPEALS FAILED TO CONSIDER THE PRESENCE OF MITIGATING
CIRCUMSTANCES.

THERE ARE MANIFEST MISTAKES IN THE FINDINGS OF FACTS BY THE COURT OF APPEALS AND THE TRIAL
COURT.

THE CONVICTION OF THE PETITIONERS WAS BASED ON THE WEAKNESS OF THE DEFENSE EVIDENCE, NOT
ON THE STRENGTH OF THE PROSECUTION EVIDENCE.

THE TESTIMONY OF THE RESPONDENT THAT IT WAS THE PETITIONERS WHO ATTACKED HIM IS INDEED
UNCORROBORATED AND THUS SELF-SERVING.

CLEARLY, THERE ARE SO MUCH REVERSIBLE ERRORS IN THE DECISION OF THE COURT OF APPEALS AND
THE LOWER COURT THAT INJURIOUSLY AFFECTED THE SUBSTANTIAL RIGHTS OF THE PETITIONERS AND
THESE SHOULD BE CORRECTED BY THIS HONORABLE COURT.
At the outset, it bears stressing that under the Rules of Court, an appeal by certiorari to this Court should
only raise questions of law distinctly set forth in the petition.5 chanRoble svirtual Lawli bra ry

In the present case, the issues and arguments presented by the petitioners involve questions of facts.
Therefore, the present petition is at once dismissible for its failure to comply with the requirement of Rule 45
of the Rules of Court, that the petition should only raise questions of law.

The distinction between a �question of law� and a �question of fact� is settled. There is a �question of
law� when the doubt or difference arises as to what the law is on a certain state of facts, and which does
not call for an examination of the probative value of the evidence presented by the parties-litigants. On the
other hand, there is a �question of fact� when the doubt or controversy arises as to the truth or falsity of
the alleged facts. Simply put, when there is no dispute as to fact, the question of whether or not the
conclusion drawn therefrom is correct, is a question of law.6 chanRoblesv irt ual Lawlib rary

At any rate, the arguments of herein petitioners deserve scant consideration.

It is the contention of the petitioners that the Information filed against them was defective because it did
not state all the elements of the crime charged. However, a close reading of the Information would show the
contrary. The Information partly reads: ChanRobles Vi rtua lawlib rary

x x x but the said accused did not perform all the acts of the execution which should have produced the
crime of murder, as a consequence, by reason of causes other than their own spontaneous desistance, that
is, the injuries inflicted upon Elpidio Malicse, Sr. y de Leon are not necessarily mortal.
From the above-quoted portion of the Information, it is clear that all the elements of the crime of attempted
murder has been included.

The last paragraph of Article 6 of the Revised Penal Code defines an attempt to commit a felony, thus: ChanRoblesVi rtua lawlib rary

There is an attempt when the offender commences the commission of a felony directly by overt acts, and
does not perform all the acts of execution which should produce the felony by reason of some cause or
accident other than his own spontaneous desistance.7 chanRoblesvirt ual Lawlib rary

The essential elements of an attempted felony are as follows:

The offender commences the commission of the felony directly by overt acts;

He does not perform all the acts of execution which should produce the felony;

The offender's act be not stopped by his own spontaneous desistance;

The non-performance of all acts of execution was due to cause or accident other than his spontaneous
desistance.8
The first requisite of an attempted felony consists of two (2) elements, namely: ChanRobles Vi rt ualawlib ra ry

(1) That there be external acts;

(2) Such external acts have direct connection with the crime intended to be committed.9
The Court in People v. Lizada10 elaborated on the concept of an overt or external act, thus: ChanRoblesVi rtua lawlib rary

An overt or external act is defined as some physical activity or deed, indicating the intention to commit a
particular crime, more than a mere planning or preparation, which if carried out to its complete termination
following its natural course, without being frustrated by external obstacles nor by the spontaneous
desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. The raison d'etre
for the law requiring a direct overt act is that, in a majority of cases, the conduct of the accused consisting
merely of acts of preparation has never ceased to be equivocal; and this is necessarily so, irrespective of his
declared intent. It is that quality of being equivocal that must be lacking before the act becomes one which
may be said to be a commencement of the commission of the crime, or an overt act or before any fragment
of the crime itself has been committed, and this is so for the reason that so long as the equivocal quality
remains, no one can say with certainty what the intent of the accused is. It is necessary that the overt act
should have been the ultimate step towards the consummation of the design. It is sufficient if it was the
"first or some subsequent step in a direct movement towards the commission of the offense after the
preparations are made." The act done need not constitute the last proximate one for completion. It is
necessary, however, that the attempt must have a causal relation to the intended crime. In the words of
Viada, the overt acts must have an immediate and necessary relation to the offense.11
Petitioners question the inclusion of the phrase �not necessarily mortal� in the allegations in the
Information. According to them, the inclusion of that phrase means that there is an absence of an intent to
kill on their part. Intent to kill is a state of mind that the courts can discern only through external
manifestations, i.e., acts and conduct of the accused at the time of the assault and immediately thereafter.
In Rivera v. People,12 this Court considered the following factors to determine the presence of an
intent to kill: (1) the means used by the malefactors; (2) the nature, location, and number of
wounds sustained by the victim; (3) the conduct of the malefactors before, at the time, or
immediately after the killing of the victim; and (4) the circumstances under which the crime was
committed and the motives of the accused. This Court also considers motive and the words uttered by
the offender at the time he inflicted injuries on the victim as additional determinative factors.13 All of these,
were proven during the trial. Needless to say, with or without the phrase, what is important is that all the
elements of attempted murder are still alleged in the Information. Section 6, Rule 110 of the Rules on
Criminal Procedure states: ChanRobles Vi rtual awlibra ry

Sec. 6. Sufficiency of complaint or information. � A complaint or information is sufficient if it states the


name of the accused; the designation of the offense by the statute; the acts or omissions complained of as
constituting the offense; the name of the offended party; the approximate time of the commission of the
offense; and the place wherein the offense was committed.
In any case, it is now too late for petitioners to assail the sufficiency of the Information on the ground that
the elements of the crime of attempted murder are lacking. Section 9, Rule 117 of the Rules of Court
provides: Cha nRobles Vi rtua lawlib rary

SEC. 9. Failure to move to quash or to allege any ground therefor.- The failure of the accused to assert any
ground of a motion to quash before he pleads to the complaint or information, either because he did not file
a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections
except those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this Rule.
Anent the probative value and weight given to the testimony of Elpidio by the CA and the RTC, the same is
not ridden with any error. In People v. Alvarado,14 we held that greater weight is given to the positive
identification of the accused by the prosecution witness than the accused's denial and explanation
concerning the commission of the crime. This is so inasmuch as mere denials are self-serving evidence that
cannot obtain evidentiary weight greater than the declaration of credible witnesses who testified on
affirmative matters.15 chanRoblesvi rtua lLawl ibra ry

It is clear from the records that Elpidio was able to make a positive identification of the petitioners as the
assailants, thus: ChanRoblesVi rtua lawlib rary

Q. Then what happened next Mr. Witness?

A. When I was able to free myself from Salvador Iguiron, I got out of the door of the house, then, I saw
Gary was hiding in the kitchen door holding an axe. Tonahawk with blade of ax was dull and had a handle of
one foot, with the diameter of one inch.

Q. Why did you know that the ax blade of the tom was dull? (sic)

A. I also used that.

Q. Where do you usually keep that in the house of Iguiron?

A. In the kitchen.

Q. How far is that kitchen from where Gary emerged from?

A. He is right in the kitchen.

Q. Then what happened?

A. When I was able to free myself from Salvador, Gary Iguiron was hiding in the kitchen door and holding a
tomhack (sic) whose edge is dull and he hit me on my right side and my head and I got injury (sic) and
blood profusely oozing, I want to get hold of the tomhawk (sic).

Q. Were you able to get of the tomhawk (sic) from Gary?

A. No sir.16 chanRoblesvi rtua lLaw lib rary

xxxx

Q. You said while on that street somebody hit you from behind, who was that?

A. Rolly Villanueva.

Q. Why do you say that it was Rolly Villanueva, considering that it was hit from behind?
A. Because they were about 5 of them at the main gate of the compound.

Q. Who are they?

A. Rolando Villanueva, Nestor Ballesteros, Tommy Ballesteros, Eugene Surigao, Saligan Iguiron.

Q. You said you were hit by Rolando from behind, do you have occasion to see first before you were hit?

A. When I was hit I fell down and I was able to see who hit (sic0, I saw him.

Q. When you fell down, you were able to realize it was Rolando Villanueva who hit you, you mean you
realized what he used in hitting you from behind?

A. It was a pipe. 1/2 inch thick, 24 inches in length.

Q. You said you fell down because of the blow of Rolando Villanueva and you saw him holding that pipe, how
was he holding the pipe when you saw him?

A. When I fell down he was about trying to hit me again.17


In connection therewith, one must not forget the well entrenched rule that findings of facts of the trial court,
its calibration of the testimonial evidence of the parties as well as its conclusion on its findings, are accorded
high respect if not conclusive effect. This is because of the unique advantage of the trial court to observe, at
close range, the conduct, demeanor and deportment of the witness as they testify.18 The rule finds an even
more stringent application where the said findings are sustained by the Court of Appeals.19 chanRoble svirtual Lawli bra ry

It is also of utmost significance that the testimony of Elpidio is corroborated by the medico-legal findings as
testified by Dr. Edgar Michael Eufemio, PGH Chief Resident Doctor of the Department of Orthopedics. He
testified as to the following:
Cha n RoblesVirt ualawli bra ry

Q. And as head of that office, Mr. Witness, why are you here today?

A. Actually, I was called upon by the complainant to rectify regarding, the findings supposedly seen when he
was admitted and when I saw him in one of the sessions of our Out Patient Department.

Q. When was this follow-up session at your department did you see this complainant?

A. Based on the chart, I think it was four (4) months post injury when I first saw the patient.

Q. Why does he has (sic) to make a follow up in your department?

A. Based on this chart, he sustained bilateral leg fractures which necessitated casting. Normally, casting
would take around three (3) months only but since the nature of his fracture was relatively unstable, I think
it necessitated prolong immobilization in a case.

PROSECUTOR TEVES:

Q. Did you personally attend on his needs on that date when you saw him?

A. Yes, ma'am.

Q. And what could have been the cause of these injuries he sustained?

A. I think one of his leg has close fracture, meaning, probably it was caused by a blunt injury rather than a
hacking injury, one on the left side, with an open wound which was very much compatible with a hack at the
leg area.20
Petitioners also claim that the prosecution was not able to prove the presence of treachery or any other
qualifying circumstance.

In this particular case, there was no treachery. There is treachery when the offender commits any of the
crimes against persons, employing means, methods, or forms in the execution, which tend directly and
specially to insure its execution, without risk to the offender arising from the defense which the offended
party might make. The essence of treachery is that the attack comes without a warning and in a swift,
deliberate, and unexpected manner, affording the hapless, unarmed, and unsuspecting victim no chance to
resist or escape. For treachery to be considered, two elements must concur: (1) the employment of means
of execution that gives the persons attacked no opportunity to defend themselves or retaliate; and (2) the
means of execution were deliberately or consciously adopted.21 From the facts proven by the prosecution,
the incident was spontaneous, thus, the second element of treachery is wanting. The incident, which
happened at the spur of the moment, negates the possibility that the petitioners consciously adopted means
to execute the crime committed. There is no treachery where the attack was not preconceived and
deliberately adopted but was just triggered by the sudden infuriation on the part of the accused because of
the provocative act of the victim.22 chanRoble svi rtual Lawli bra ry

The RTC, however, was correct in appreciating the qualifying circumstance of abuse of superior strength,
thus:ChanRoblesVirt ualawli bra ry

In the case at bar, the prosecution was able to establish that Salvador Iguiron hit Elpidio Malicsi, Sr. twice
on the head as he was entered (sic) the house of the former. Gary Fantastico hit the victim on the right side
of the head with an axe or tomahawk. The evidence also show that Rolando �Rolly� Villanueva hit the
victim on the head with a lead pipe. And outside while the victim was lying down, Gary hit the legs of the
victim with the tomahawk. lvador also hit the victim with the rattan stick on the thighs, legs and knees. And
Titus Iguiron hit the victim's private organ with a piece of wood. The Provisional Medical Slip (Exh. �D�),
Medico Legal Certificate and Leg Sketch (Exh. �D-2�) and the fracture sheet (Exh. �D-4�) all prove that
the victim suffered injuries to both legs and multiple lacerations on his head. The injury on one leg which
was a close fracture was caused by a blunt instrument like a piece of wood. This injury was caused by
Salvador Iguiron. The other leg suffered an open fracture caused by a sharp object like a large knife or axe.
This was caused by Gary Fantastico who used the tomahawk or axe on the victim. The multiple lacerations
on the head were caused by Gary, Rolly and Salvador as it was proven that they hit Elpidio on the head.
There is no sufficient evidence that the other, accused, namely Saligan Iguiron Y Malicsi, Tommy
Ballesteros, Nestor Ballesteros and Eugene Surigao harmed or injured the victim. Titus having sprayed
Elpidio with the tear gas is not sufficiently proven. Neither was the alleged blow by Titus, using a piece of
wood, on the victim's private organ sufficiently established as the medical certificate did not show any injury
on that part of the body of the victim.

The said injuries inflicted on the complainant after he went back to his sister Isabelita's house. When he
kicked the door, the melee began. And the sequence of the injuries is proven by victim's testimony. But it
was a lopsided attack as the victim was unarmed, while his attackers were all armed (rattan
stick, tomahawk and lead pipe). And the victim was also drunk. This establishes the element of
abuse of superior strength. The suddenness of the blow inflicted by Salvador on Elpidio when he
entered the premises show that the former was ready to hit the victim and was waiting for him
to enter. It afforded Elpidio no means to defend himself. And Salvador consciously adopted the
said actuation. He hit Elpidio twice on the head. Treachery is present in this case and must be
considered an aggravating circumstance against Salvador Iguiron. Rolly Villanueva, Gary Fantastico
and Salvador Iguiron were all armed while Elpidio, inebriated, had nothing to defend himself with. There is
clearly present here the circumstance of abuse of superior strength.23 (Emphasis supplied)
Abuse of superior strength is present whenever there is a notorious inequality of forces between the victim
and the aggressor, assuming a situation of superiority of strength notoriously advantageous for the
aggressor selected or taken advantage of by him in the commission of the crime."24 "The fact that there
were two persons who attacked the victim does not per se establish that the crime was committed with
abuse of superior strength, there being no proof of the relative strength of the aggressors and the
victim."25 The evidence must establish that the assailants purposely sought the advantage, or that they had
the deliberate intent to use this advantage.26 "To take advantage of superior strength means to purposely
use excessive force out of proportion to the means of defense available to the person attacked."27 The
appreciation of this aggravating circumstance depends on the age, size, and strength of the parties.28 chanRoblesv irt ual Lawlib rary

Anent the penalty imposed by the RTC and affirmed by the CA, which is an indeterminate penalty of eight
(8) years and one (1) day as minimum, to ten (10) years as maximum and ordered them to pay actual
damages of P17,300.00 and moral damages of P10,000.00, this Court finds an obvious error.

For the crime of attempted murder, the penalty shall be prision mayor, since Article 51 of the Revised Penal
Code states that a penalty lower by two degrees than that prescribed by law for the consummated felony
shall be imposed upon the principals in an attempt to commit a felony.29 Under the Indeterminate Sentence
Law, the maximum of the sentence shall be that which could be properly imposed in view of the attending
circumstances, and the minimum shall be within the range of the penalty next lower to that prescribed by
the Revised Penal Code. Absent any mitigating or aggravating circumstance in this case, the maximum of
the sentence should be within the range of prision mayor in its medium term, which has a duration of eight
(8) years and one (1) day to ten (10) years; and that the minimum should be within the range of prision
correccional, which has a duration of six (6) months and one (1) day to six (6) years. Therefore, the penalty
imposed should have been imprisonment from six (6) years of prision correccional, as minimum, to eight (8)
years and one (1) day of prision mayor, as maximum.

WHEREFORE, the Petition for Review on Certiorari dated January 20, 2010 of petitioners Gary Fantastico
and Rolando Villanueva is hereby DENIED. Consequently, the Decision dated August 31, 2007 and
Resolution dated January 7, 2010 of the Court of Appeals are hereby AFFIRMED with
the MODIFICATION that the petitioners are sentenced to an indeterminate penalty of imprisonment from
six (6) years of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as
maximum. Petitioners are also ORDERED to pay P17,300.00 as actual damages, as well as P10,000.00
moral damages as originally ordered by the RTC. In addition, interest is imposed on all damages awarded at
the rate of six percent (6%) per annum from date of finality of judgment until fully paid.

SO ORDERED. cralawlawlibra ry

Velasco, Jr., (Chairperson), Villarama, Jr., Reyes, and Jardeleza, JJ., concur.

Endnotes:

Rollo, pp. 3-120.


1

2
Penned by Associate Justice Andres B. Reyes, with Associate Justices Vicente S. E. Veloso and Marlene
Gonzales-Sison, concurring.

Rollo, pp. 26-28.


3

4
Penned by Presiding Judge Cicero D. Jurado, Jr.; id., at 60-65.

5
1997 Rules of Civil Procedure, Rule 45, Sec. 1.

Sarsaba v. Vda. de Te, G.R. No. 175910, July 30, 2009, 594 SCRA 410, 420.
6

Rivera v. People, 515 Phil. 824, 833 (2006).


7

Id., citing People v. Lizada, 444 Phil. 67 (2003).


8

9
Reyes, Revised Penal Code, 1981, Vol. I, p. 98.

10
People v. Lizada, supra note 8.

11
Id. at 98-99.

12
Supra note 7, citing People v. Delim, 444 Phil. 430, 450 (2003).

13
Epifanio v. People, 552 Phil. 620, 630 (2007).

14
341 Phil. 725, 734 (1997).

15
People v. Gidoc, 604 Phil. 702, 713 (2009).

16
TSN, August 29, 1994, pp. 20-22.

17
Id. at 24-26.

18
People v. Dumadag, G.R. No. 147196, June 4, 2004, 431 SCRA 65, 70.

19
People v. Cabugatan, G.R. No. 172019, February 12, 2007, 515 SCRA 537, 547.

20
TSN, July 23, 1996, pp. 5-6.

People of the Philippines v. Danilo Feliciano, Jr., et al., G.R. No. 196735, May 5, 2014, citing People v.
21

Leozar Dela Cruz, G.R. No. 188353, February 16, 2010, 612 SCRA 738, 747 [Per J. Velasco, Third Division],
citing People v. Amazan, 402 Phil. 247, 270 (2001) [Per J. Mendoza, Second Division]; People v. Bato, 401
Phil. 415, 431 (2000) [Per J. Pardo, First Division]; People v. Albarido, G.R. No. 102367, October 25, 2001,
368 SCRA 194.

22
See People v. Tavas, G.R. No. 123969, February 11, 1999, 303 SCRA 86.

Rollo, pp. 63-64.


23

People v. Daquipil, 310 Phil. 327, 348 (1995).


24

People v. Casingal, 312 Phil. 945, 956 (1995).


25

People v. Escoto, 313 Phil. 785, 800-801 (1995).


26

People v. Ventura, 477 Phil. 458, 484 (2004).


27

28
People v. Moka, 273 Phil. 610, 621 (1991).

People v. Adallom, G.R. No. 182522, March 7, 2012, 667 SCRA 652, 680.
29

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-43530 August 3, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
AURELIO LAMAHANG, defendant-appellant.
Honesto K. Bausa for appellant.
Office of the Solicitor-General Hilado for appellee.
RECTO, J.:
The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First
Instance of Iloilo, finding him guilty of attempted robbery and sentencing him to suffer two years and
four months of prision correccional and to an additional penalty of ten years and one day of prision
mayor for being an habitual delinquent, with the accessory penalties of the law, and to pay the costs
of the proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on
Delgado and C.R. Fuentes streets of the City of Iloilo, caught the accused in the act of making an
opening with an iron bar on the wall of a store of cheap goods located on the last named street. At
that time the owner of the store, Tan Yu, was sleeping inside with another Chinaman. The accused
had only succeeded in breaking one board and in unfastening another from the wall, when the
policeman showed up, who instantly arrested him and placed him under custody.
The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the
trial judge and the Solicitor-General, as constituting attempted robbery, which we think is erroneous.
It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which
has a logical relation to a particular, concrete offense; that, which is the beginning of the execution of
the offense by overt acts of the perpetrator, leading directly to its realization and consummation. The
attempt to commit an indeterminate offense, inasmuch as its nature in relation to its objective is
ambiguous, is not a juridical fact from the standpoint of the Penal Code. There is no doubt that in the
case at bar it was the intention of the accused to enter Tan Yu's store by means of violence, passing
through the opening which he had started to make on the wall, in order to commit an offense which,
due to the timely arrival of policeman Tomambing, did not develop beyond the first steps of its
execution. But it is not sufficient, for the purpose of imposing penal sanction, that an act
objectively performed constitute a mere beginning of execution; it is necessary to establish
its unavoidable connection, like the logical and natural relation of the cause and its effect,
with the deed which, upon its consummation, will develop into one of the offenses defined
and punished by the Code; it is necessary to prove that said beginning of execution, if
carried to its complete termination following its natural course, without being frustrated by
external obstacles nor by the voluntary desistance of the perpetrator, will logically and
necessarily ripen into a concrete offense. Thus, in case of robbery, in order that the simple
act of entering by means of force or violence another person's dwelling may be considered
an attempt to commit this offense, it must be shown that the offender clearly intended to take
possession, for the purpose of gain, of some personal property belonging to another. In the
instant case, there is nothing in the record from which such purpose of the accused may reasonably
be inferred. From the fact established and stated in the decision, that the accused on the day in
question was making an opening by means of an iron bar on the wall of Tan Yu's store, it may only
be inferred as a logical conclusion that his evident intention was to enter by means of force said
store against the will of its owner. That his final objective, once he succeeded in entering the store,
was to rob, to cause physical injury to the inmates, or to commit any other offense, there is nothing
in the record to justify a concrete finding.
1avv phil.ñet

It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the
material damage is wanting, the nature of the action intended (accion fin) cannot exactly be
ascertained, but the same must be inferred from the nature of the acts executed (accion
medio). Hence, the necessity that these acts be such that by their very nature, by the facts to
which they are related, by the circumstances of the persons performing the same, and by the
things connected therewith, they must show without any doubt, that they are aimed at the
consummation of a crime. Acts susceptible of double interpretation , that is, in favor as well
as against the culprit, and which show an innocent as well as a punishable act, must not and
can not furnish grounds by themselves for attempted nor frustrated crimes. The relation
existing between the facts submitted for appreciation and the offense which said facts are
supposed to produce must be direct; the intention must be ascertained from the facts and
therefore it is necessary, in order to avoid regrettable instances of injustice, that the mind be
able to directly infer from them the intention of the perpetrator to cause a particular injury.
This must have been the intention of the legislator in requiring that in order for an attempt to
exist, the offender must commence the commission of the felony directly by overt acts, that is
to say, that the acts performed must be such that, without the intent to commit an offense,
they would be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the
commission of the offense, are not punished except when they are aimed directly to its execution,
and therefore they must have an immediate and necessary relation to the offense."
Considering — says the Supreme Court of Spain in its decision of March 21, 1892 — that in
order to declare that such and such overt acts constitute an attempted offense it is necessary
that their objective be known and established, or that said acts be of such nature that they
themselves should obviously disclose the criminal objective necessarily intended, said
objective and finality to serve as ground for the designation of the offense: . . . .
In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does
not constitute attempted robbery but attempted trespass to dwelling (People vs. Tayag and Morales,
59 Phil., 606, and decisions of the Supreme Court of Spain therein cited). Under article 280 of the
Revised Penal Code, this offense is committed when a private person shall enter the dwelling of
another against the latter's will. The accused may be convicted and sentenced for an attempt to
commit this offense in accordance with the evidence and the following allegation contained in the
information: "... the accused armed with an iron bar forced the wall of said store by breaking a board
and unfastening another for the purpose of entering said store ... and that the accused did not
succeed in entering the store due to the presence of the policeman on beat Jose Tomambing, who
upon hearing the noise produced by the breaking of the wall, promptly approached the accused ... ."
Under the circumstances of this case the prohibition of the owner or inmate is presumed. (U.S. vs.
Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21
Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused
must be taken into consideration the aggravating circumstances of nighttime and former convictions,
— inasmuch as the record shows that several final judgments for robbery and theft have been
rendered against him — and in his favor, the mitigating circumstance of lack of instruction. The
breaking of the wall should not be taken into consideration as an aggravating circumstance
inasmuch as this is the very fact which in this case constitutes the offense of attempted trespass to
dwelling.
The penalty provided by the Revised Penal Code for the consummated offense of trespass to
dwelling, if committed with force, is prision correccional in its medium and maximum periods and a
fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted
trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its minimum and medium
periods. Because of the presence of two aggravating circumstances and one mitigating
circumstance the penalty must be imposed in its maximum period. Pursuant to article 29 of the same
Code, the accused is not entitled to credit for one-half of his preventive imprisonment.
Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of
attempted trespass to dwelling, committed by means of force, with the aforesaid aggravating and
mitigating circumstances and sentenced to three months and one day of arresto mayor, with the
accessory penalties thereof and to pay the costs.
Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.

EN BANC

[G.R. No. 143468-71. January 24, 2003]

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


LIZADA @ FREDIE LIZADA, accused-appellant.

DECISION
CALLEJO, SR., J.:

This is an automatic review of the Decision[1] of the Regional Trial Court of Manila,
Branch 54, finding accused-appellant Freedie Lizada guilty beyond reasonable doubt of
four (4) counts of qualified rape and meting on him the death penalty for each count.
I. The Charges

Accused-appellant[2] was charged with four (4) counts of qualified rape under four
separate Informations. The accusatory portion of each of the four Informations reads:
That sometime in August 1998 in the City of Manila, Philippines, the said accused,
with lewd designs, did then and there willfully, unlawfully and feloniously, by means
of force, violence and intimidation upon the person of one ANALIA ORILLOSA y
AGOO, by then and there embracing her, kissing and touching her private parts,
thereafter removing her skirt and panty, placing himself on top of her and trying to
insert his penis into her vagina and succeeded in having carnal knowledge with the
said ANALIA ORILLOSA y AGOO, against her will and consent.
Contrary to law.
XXX
That on or about November 5, 1998, in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and feloniously,
by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her
private parts, thereafter removing her skirt and panty, placing himself on top of her
and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and
consent.
Contrary to law.
XXX
That on or about October 22, 1998, in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and feloniously,
by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her
private parts, thereafter removing her skirt and panty, placing himself on top of her
and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and
consent.
Contrary to law.
XXX
That on or about September 15, 1998, in the City of Manila, Philippines, the said
accused, with lewd designs, did then and there willfully, unlawfully and feloniously,
by means of force, violence and intimidation upon the person of one ANALIA
ORILLOSA Y AGOO, by then and there embracing her, kissing and touching her
private parts, thereafter removing her skirt and panty, placing himself on top of her
and trying to insert his penis into her vagina and succeeded in having carnal
knowledge with the said ANALIA ORILLOSA Y AGOO, against her will and
consent.
Contrary to law. [3]

The four (4) Informations were docketed as Criminal Cases Nos. 99-171390, 99-
171391, 99-171392 and 99-171393, respectively.
Accused-appellant was arraigned on April 15, 1999, assisted by counsel de
parte and entered a plea of not guilty to each of the charges.[4] A joint trial then ensued.

II. Evidence of the Prosecution[5]

Ricardo Orillosa and his wife, Rose Orillosa, natives of San Isidro, Bohol, had three
(3) children, namely: Analia, who was born on December 18, 1985; [6] Jepsy, who was 11
years old, and Rossel, who was nine years old. However, the couple decided to part
ways and live separately. Rose left Bohol and settled in Manila with her young
children. She worked as a waitress to make both ends meet.
In 1994, Rose met accused-appellant. They decided to live together as husband
and wife at No. 1252 Jose Abad Santos Street, Moriones, Tondo, Manila. In 1996, Rose
resigned from her job as a waitress. She secured a loan, bought a truck and used it for
her business.
In the meantime, Rose secured a loan anew and used the proceeds thereof to put
up a video shop in her house. She sold Avon products from house to house to augment
her income.Whenever she was out of their house, Rossel and Analia took turns in
tending the video shop and attending to customers.
Sometime in 1996, Analia was in her room when accused-appellant entered. He laid
on top of her, removed her T-shirt and underwear. He then inserted his finger in her
vagina. He removed his finger and inserted his penis in her vagina. Momentarily, she
felt a sticky substance coming out from his penis. She also felt pain in her sex
organ. Satiated, accused-appellant dismounted but threatened to kill her if she divulged
to anyone what he did to her. Accused-appellant then returned to his room. The incident
lasted less than one hour. Petrified by the threats on her life, Analia kept to herself what
happened to her.[7]
Sometime in August 1997, accused-appellant entered again the room of Analia,
placed himself on top of her and held her legs and arms. He then inserted his finger into
her sex organ (fininger niya ako). Satiated, accused-appellant left the room. During the
period from 1996 to 1998, accused-appellant sexually abused private complainant two
times a week.
On November 5, 1998, at about 3:00 p.m., Analia was in the sala of their house
studying her assignments. Accused-appellant was also in the sala. Rossel tended the
video shop while his mother was away. Analia went into her room and lay down in
bed. She did not lock the door of the room because her brother might enter any
time. She wanted to sleep but found it difficult to do so. Accused-appellant went to his
room next to the room of Analia. He, however, entered the room of Analia. He was
wearing a pair of short pants and was naked from waist up. Analia did not mind
accused-appellant entering her room because she knew that her brother, Rossel was
around. However, accused-appellant sat on the side of her bed, placed himself on top of
her, held her hands and legs and fondled her breasts. She struggled to extricate
herself. Accused-appellant removed her panty and touched her sex organ. Accused-
appellant inserted his finger into her vagina, extricated it and then inserted his penis into
her vagina. Accused-appellant ejaculated. Analia felt pain in her sex
organ. Momentarily, Rossel passed by the room of Analia after drinking water from the
refrigerator, and peeped through the door. He saw accused-appellant on top of
Analia. Accused-appellant saw Rossel and dismounted.Accused-appellant berated
Rossel and ordered him to go to his room and sleep. Rossel did. Accused-appellant
then left the room. Analia likewise left the room, went out of the house and stayed
outside for one hour. Rose arrived home at 6:00 p.m. However, Analia did not divulge to
her mother what accused-appellant had just done to her.
On November 9, 1998, at about 3:00 p.m., Rose left the house. Accused-appellant
was in the sala of the house watching television. Analia tended the video
shop. However, accused-appellant told Analia to go to the sala. She refused, as nobody
would tend the video shop. This infuriated accused-appellant who threatened to slap
and kick her.
Analia ignored the invectives and threats of accused-appellant and stayed in the
video shop. When Rose returned, a heated argument ensued between accused-
appellant and Analia.Rose sided with her paramour and hit Analia. This prompted
Analia to shout. Ayoko na, ayoko na. Shortly thereafter, Rose and Analia left the house
on board the motorcycle driven by her mother in going to Don Bosco Street, Moriones,
Tondo, Manila, to retrieve some tapes which had not yet been returned. When Rose
inquired from her daughter what she meant by her statement, ayoko na, ayoko na, she
told her mother that accused-appellant had been touching the sensitive parts of her
body and that he had been on top of her. Rose was shocked and incensed. The two
proceeded to Kagawad Danilo Santos to have accused-appellant placed under
arrest. On November 10, 1998, the two proceeded to the Western Police District where
Analia gave her Affidavit-Complaint to PO1 Carmelita Nocum in the presence of SPO2
Fe H. Avindante. She related to the police investigator that accused-appellant had
touched her breasts and arms in August, 1998, September 15, 1998, October 22, 1998
and on November 5, 1998, at 3:00 p.m. Analia then submitted herself to genitalia
examination by Dr. Armie Umil, a medico-legal officer of the NBI. The medico-legal
officer interviewed Analia, told him that she was raped in May, 1997 at 3:00 p.m. and
November 5, 1998 at 3:00 p.m.[8]
Dr. Umil prepared and signed a report on Living Case No. MO-98-1265 which
contained her findings during her examination on Analia, thus:
xxx
Fairly nourished, conscious, coherent, cooperative, ambulatory subject. Breasts,
developed, hemispherical, firm. ----, brown, 3.0 cms. in diameter. Nipples brown,
protruding, 0.7 cms. in diameter.
No extragenital physical injuries noted.
GENITAL EXAMINATION:
Pubic hair, fully grown, moderate. Labia majora and minora, coaptated. Fourchette,
tense. Vetibular mucosa, pinkish. Hymen, tall, thick, intact. Hymenal orifice
measures, 1.5 cms. in diameter. Vaginal walls, tight. Rugosities, prominent.
CONCLUSIONS:
1). No evident sign of extragenital physical injuries noted on the body of the subject at
the time of examination.
2). Hymen, intact and its orifice small (1.5 cms. in diameter) as to preclude complete
penetration by an average-sized adult Filipino male organ in full erection without
producing any genital injury. [9]

Subsequently, Analia told her mother that mabuti na lang iyong panghihipo lang ang
sinabi ko. When Rose inquired from her daughter what she meant by her statement,
Analia revealed to her mother that accused-appellant had sexually abused her. On
December 15, 1998, Analia executed a Dagdag na Salaysay ng Paghahabla and
charged accused-appellant with rape.[10]

III. The Defenses and Evidence of Accused-Appellant

Accused-appellant testified in his defense. He declared that after a month of


courtship, he and Rose agreed in 1994 to live together as husband and wife. He was
then a utility worker with the Navotas Branch of the Philippine Banking
Corporation. Rose, on the other hand, was a waitress at the Golden Bird beer house at
Rizal Avenue, Manila.
Accused-appellant denied having raped Analia. He claimed that he loved the
children of Rose as if they were his own children. He took care of them, as in fact he
cooked and prepared their food before they arrived home from school. At times, he
ironed their school uniforms and bathed them, except Analia who was already
big. Analia was hard-headed because she disobeyed him whenever he ordered her to
do some errands. Because of Analias misbehavior, accused-appellant and Rose
oftentimes quarreled. Rose even demanded that accused-appellant leave their
house. Another irritant in his and Roses lives were the frequent visits of the relatives of
her husband.
Sometime in 1997, accused-appellant was retrenched from his employment and
received a separation pay of P9,000.00 which he used to put up the VHS Rental and
Karaoke from which he earned a monthly income of P25,000.00. While living together,
accused-appellant and Rose acquired two colored television sets, two VHS Hi-fi
recorders, one VHS player, one washing machine, one scooter motor, two VHS
rewinders, one sala set, one compact disc player and many other properties.
Accused-appellant ventured that Rose coached her children Analia and Rossel to
testify against him and used them to fabricate charges against him because Rose
wanted to manage their business and take control of all the properties they acquired
during their coverture. Also, Rose was so exasperated because he had no job.

IV. The Verdict

On May 29, 2000, the trial court rendered judgment against accused-appellant
finding him guilty beyond reasonable doubt of four (4) counts of rape, defined and
penalized in the seventh paragraph, no. 1, Art. 335 of the Revised Penal Code, and
meted on him the death penalty for each count. The dispositive portion of the decision
reads:
From all the evidence submitted by the prosecution, the Court concludes that the
accused is guilty beyond reasonable doubt of the crime charged against him in these
four (4) cases, convicts him thereof, and sentences him to DEATH PENALTY in each
and every case as provided for in the seventh paragraph, no. 1, Article 335 of the
Revised Penal Code.
SO ORDERED. [11]

V. Assigned Errors of the Trial Court

Accused-appellant assailed the decision of the court a quo and averred in his brief
that:
THE TRIAL COURT GRAVELY ERRED IN NOT MAKING A FINDING OF FACT IN ITS
DECISION AND SUCH FAILURE IS A REVERSIBLE ERROR.[12]
XXX
THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF
FOUR (4) COUNTS OF RAPE DESPITE FAILURE OF THE PROSECUTION TO
PROVE HIS GUILT BEYOND REASONABLE DOUBT.[13]

VI. Findings of the Court

On the first assignment of error, accused-appellant contends that the decision of the
trial court is null and void as it failed to comply with the requirements of Section 14,
Article VIII of the 1987 Constitution and Section 1, Rule 36 of the 1997 Rules of Civil
Procedure, as amended. He avers that the court a quo made no findings of facts in its
decision. The trial court merely summarized the testimonies of the witnesses of the
prosecution and those of accused-appellant and his witnesses, and forthwith set forth
the decretal portion of said decision. The trial court even failed to state in said decision
the factual and legal basis for the imposition of the supreme penalty of death on
him. The Solicitor General, on the other hand, argues that there should be no
mechanical reliance on the constitutional provision. Trial courts may well-nigh
synthesize and simplify their decisions considering that courts are harassed by crowded
dockets and time constraints. Even if the trial court did not elucidate the grounds as the
legal basis for the penalties imposed, nevertheless the decision is valid. In any event,
the Solicitor General contends that despite the infirmity of the decision, there is no need
to remand the case to the trial court for compliance with the constitutional requirement
as the Court may resolve the case on its merits to avoid delay in the final disposition of
the case and afford accused-appellant his right to a speedy trial.
The contention of accused-appellant is well-taken. Article VIII, paragraph 14 of the
1987 Constitution provides that no decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on which it is based. This
requirement is reiterated and implemented by Rule 120, Section 2 of the 1985 Rules on
Criminal Procedure, as amended, which reads:
SEC. 2. Form and contents of judgment.The judgment must be written in the official
language, personally and directly prepared by the judge and signed by him and shall
contain clearly and distinctly a statement of the facts proved or admitted by the
accused and the law upon which the judgment is based.
If it is of conviction, the judgment shall state (a) the legal qualification of the offense
constituted by the acts committed by the accused, and the aggravating or mitigating
circumstances attending the commission thereof, if there are any; (b) the participation
of the accused in the commission of the offense, whether as principal, accomplice, or
accessory after the fact; (c) the penalty imposed upon the accused; and (d) the civil
liability or damages caused by the wrongful act to be recovered from the accused by
the offended party, if there is any, unless the enforcement of the civil liability by a
separate action has been reserved or waived. [14]

The purpose of the provision is to inform the parties and the person reading the
decision on how it was reached by the court after consideration of the evidence of the
parties and the relevant facts, of the opinion it has formed on the issues, and of the
applicable laws. The parties must be assured from a reading of the decision of the trial
court that they were accorded their rights to be heard by an impartial and responsible
judge.[15] More substantial reasons for the requirement are:
For one thing, the losing party must be given an opportunity to analyze the decision so
that, if permitted, he may elevate what he may consider its errors for review by a
higher tribunal. For another, the decision if well-presented and reasoned, may
convince the losing party of its merits and persuade it to accept the verdict in good
grace instead of prolonging the litigation with a useless appeal. A third reason is that
decisions with a full exposition of the facts and the law on which they are based,
especially those coming from the Supreme Court, will constitute a valuable body of
case law that can serve as useful references and even as precedents in the resolution of
future controversies.[16]

The trial court is mandated to set out in its decision the facts which had been proved
and its conclusions culled therefrom, as well as its resolution on the issues and the
factual and legal basis for its resolution.[17] Trial courts should not merely reproduce the
respective testimonies of witnesses of both parties and come out with its decretal
conclusion.
In this case, the trial court failed to comply with the requirements under the
Constitution and the Rules on Criminal Procedure. It merely summarized the
testimonies of the witnesses of the prosecution and of accused-appellant on direct and
cross examinations and merely made referral to the documentary evidence of the
parties then concluded that, on the basis of the evidence of the prosecution, accused-
appellant is guilty of four (4) counts of rape and sentenced him to death, on each count.
The trial court even failed to specifically state the facts proven by the prosecution
based on their evidence, the issues raised by the parties and its resolution of the factual
and legal issues, as well as the legal and factual bases for convicting accused-appellant
of each of the crimes charged. The trial court rendered judgment against accused-
appellant with the curt declaration in the decretal portion of its decision that it did so
based on the evidence of the prosecution. The trial court swallowed hook, line and
sinker the evidence of the prosecution. It failed to explain in its decision why it believed
and gave probative weight to the evidence of the prosecution. Reading the decision of
the trial court, one is apt to conclude that the trial court ignored the evidence of
accused-appellant. The trial court did not even bother specifying the factual and legal
bases for its imposition of the supreme penalty of death on accused-appellant for each
count of rape. The trial court merely cited seventh paragraph, no. 1, Article 335 of the
Revised Penal Code. The decision of the trial court is a good example of what a
decision, envisaged in the Constitution and the Revised Rules of Criminal Procedure,
should not be.
The Court would normally remand the case to the trial court because of the infirmity
of the decision of the trial court, for compliance with the constitutional
provision. However, to avert further delay in the disposition of the cases, the Court
decided to resolve the cases on their merits considering that all the records as well as
the evidence adduced during the trial had been elevated to the Court. [18] The parties filed
their respective briefs articulating their respective stances on the factual and legal
issues.
In reviewing rape cases, this Court is guided by the following principles: (1) to
accuse a man of rape is easy but to disprove it is difficult though the accused may be
innocent; (2) considering the nature of things, and only two persons are usually involved
in the crime of rape, the testimony of the complainant should be scrutinized with great
caution; (3) the evidence for the prosecution must stand or fall on its own merits and not
be allowed to draw strength from the weakness of the evidence of the defense. [19] By the
very nature of the crime of rape, conviction or acquittal depends almost entirely on the
credibility of the complainants testimony because of the fact that usually only the
participants can testify as to its occurrence. However, if the accused raises a sufficient
doubt as to any material element of the crime, and the prosecution is unable to
overcome it with its evidence, the prosecution has failed to discharge its burden of
proving the guilt of the accused beyond cavil of doubt and hence, the accused is entitled
to an acquittal.
Anent the second assignment of error, we will resolve the same for convenience, as
follows:
Re: CRIMINAL CASES NOS. 99-171392 and 99-171393 (covering the crime of rape
committed on or about October 22, 1998 and on or about September 15, 1998)
Accused-appellant avers that the prosecution failed to adduce the requisite
quantum of evidence that he raped the private complainant precisely on September 15,
1998 and October 22, 1998. Moreover, the medical findings of Dr. Armie Umil show that
the hymen of the private complainant was intact and its orifice so small as to preclude
complete penetration by an average size adult Filipino male organ in full erection
without producing any genital injury. The physical evidence belies private complainants
claim of having been deflowered by accused-appellant on four different occasions. The
Office of the Solicitor General, for its part, contends that the prosecution through the
private complainant proved the guilt of accused-appellant for the crime charged on both
counts.
The contention of accused-appellant does not persuade the Court. The private
complainant testified that since 1996, when she was only eleven years old, until 1998,
for two times a week, accused-appellant used to place himself on top of her and despite
her tenacious resistance, touched her arms, legs and sex organ and inserted his finger
and penis into her vagina.In the process, he ejaculated. Accused-appellant threatened
to kill her if she divulged to anyone what he did to her. [20] Although private complainant
did not testify that she was raped on September 15, 1998 and October 22, 1998,
nevertheless accused-appellant may be convicted for two counts of rape, in light of the
testimony of private complainant.
It bears stressing that under the two Informations, the rape incidents are alleged to
have been committed on or about September 15, 1998 and on or about October 22,
1998. The words on or about envisage a period, months or even two or four years
before September 15, 1998 or October 22, 1998. The prosecution may prove that the
crime charged was committed on or about September 15, 1998 and on or about
October 22, 1998.
In People vs. Gianan,[21] this Court affirmed the conviction of accused-appellant of
five (5) counts of rape, four of which were committed in December 1992 (two counts)
and one each in March and April, 1993 and in November, 1995 and one count of acts of
lasciviousness committed in December 1992, on a criminal complaint for multiple
rape, viz:
That sometime in November 1995, and some occasions prior and/or subsequent
thereto, in the Municipality of Dasmarias, Province of Cavite, and within the
jurisdiction of this Honorable Court, the above-named accused, with lewd designs,
taking advantage of his superior strength over the person of his own twelve (12) year
old daughter, and by means of force, violence and intimidation, did, then and there,
willfully, unlawfully and feloniously, have repeated carnal knowledge of Myra M.
Gianan, against her will and consent, to her damage and prejudice. [22]

On the contention of accused-appellant in said case that his conviction for rape in
December 1992 was so remote from the date (November 1995) alleged in the
Information, so that the latter could no longer be considered as being as near to the
actual date at which the offense was committed as provided under Section 11, Rule 110
of the Rules on Criminal Procedure, as amended, this Court held:
Accused-appellant nevertheless argues that his conviction for rape in December 1992
is so remote from the date (November 1995) alleged in the information, so that the
latter could no longer be considered as being as near to the actual date at which the
offense was committed as provided under Rule 110, 11.
This contention is also untenable. In People v. Garcia, this Court upheld a conviction
for ten counts of rape based on an information which alleged that the accused
committed multiple rape from November 1990 up to July 21, 1994, a time difference
of almost four years which is longer than that involved in the case at bar. In any case,
as earlier stated, accused-appellants failure to raise a timely objection basedon this
ground constitutes a waiver of his right to object.[23]

Moreover, when the private complainant testified on how accused-appellant defiled


her two times a week from 1996 until 1998, accused-appellant raised nary a whimper of
protest.Accused-appellant even rigorously cross-examined the private complainant on
her testimony on direct examination. The presentation by the prosecution, without
objection on the part of accused-appellant, of evidence of rape committed two times a
week from 1996 until 1998 (which includes September 15, 1998 and October 22, 1998)
to prove the charges lodged against him constituted a waiver by accused-appellant of
his right to object to any perceived infirmity in, and in the amendment of, the aforesaid
Informations to conform to the evidence adduced by the prosecution.
The barefaced fact that private complainant remained a virgin up to 1998 does not
preclude her having been repeatedly sexually abused by accused-appellant. The private
complainant being of tender age, it is possible that the penetration of the male organ
went only as deep as her labia. Whether or not the hymen of private complainant was
still intact has no substantial bearing on accused-appellants commission of the
crime.[24] Even the slightest penetration of the labia by the male organ or the mere entry
of the penis into the aperture constitutes consummated rape. It is sufficient that there be
entrance of the male organ within the labia of the pudendum.[25] In People vs. Baculi,
cited in People vs. Gabayron,[26] we held that there could be a finding of rape even if
despite repeated intercourse over a period of four years, the complainant still retained
an intact hymen without injury. In these cases, the private complainant testified that the
penis of accused-appellant gained entry into her vagina:
Fiscal Carisma
(continuing)
After your underwear was removed by the accused, what happened next?
Witness:
He laid himself on top of me, sir.
Q What did he do while he was on top of you?
A He inserted his finger (Finenger nya ako, ipinatong nya yong ano nya)
Q Can you please describe more specifically what is this and I quote Pinatong nya
yong ano nya and where did he place it?
A His organ, sir.
Q Where did he place his organ?
A In my organ, sir. (sa ari ko po.)
Q At this very juncture madam witness, what did you feel?
A I felt pain, sir, and I also felt that there was a sticky substance that was coming out,
sir.[27] (Underlining supplied)
We agree with accused-appellant that he is guilty only of two counts of simple rape,
instead of qualified rape. The evidence on record shows that accused-appellant is the
common-law husband of Rose, the mother of private complainant. The private
complainant, as of October 1998, was still 13 years old, and under Article 335 as
amended by Republic Act 7659, the minority of the private complainant, concurring with
the fact that accused-appellant is the common-law husband of the victims mother, is a
special qualifying circumstance warranting the imposition of the death
penalty.[28] However, said circumstance was not alleged in the Informations as required
by Section 8, Rule 110 of the Revised Rules on Criminal Procedure which was given
retroactive effect by this Court because it is favorable to the accused. [29] Hence, even if
the prosecution proved the special qualifying circumstance of minority of private
complainant and relationship, the accused-appellant being the common-law husband of
her mother, accused-appellant is guilty only of simple rape. Under the given law, the
penalty for simple rape is reclusion perpetua. Conformably with current jurisprudence,
accused-appellant is liable to private complainant for civil indemnity in the amount
of P50,000.00 and moral damages in the amount of P50,000.00 for each count of rape,
or a total of P200,000.00.
Re: Criminal Cases Nos. 99-171390 and 99-171391 (covering the crime committed on
or about August 1998 and November 5, 1998)
Accused-appellant avers that (a) the Information in Criminal Case No. 99-
171390 is defective because the date of the offense on or about August 1998 alleged
therein is too indefinite, in violation of Rule 110, Section 11 of the Revised Rules on
Criminal Procedure which reads:
Sec. 11. Date of commission of the offense.It is not necessary to state in the complaint
or information the precise date the offense was committed except when it is a material
ingredient of the offense. The offense may be alleged to have been committed on a
date as near as possible to the actual date of its commission. (11a) [30]

Accused-appellant further asserts that the prosecution failed to prove that he raped
private complainant in August 1998. Hence, he argues, he should be acquitted of said
charge. The Office of the Solicitor General, for its part, argued that the date on or about
August 1998 is sufficiently definite. After all, the date of the commission of the crime of
rape is not an essential element of the crime. The prosecution adduced conclusive proof
that accused-appellant raped private complainant on or about August 1998, as gleaned
from her testimony during the trial.
The Court does not agree with accused-appellant. It bears stressing that the precise
date of the commission of the crime of rape is not an essential element of the
crime. Failure to specify the exact date when the rape was committed does not render
the Information defective. The reason for this is that the gravamen of the crime of rape
is carnal knowledge of the private complainant under any of the circumstances
enumerated under Article 335 of the Revised Penal Code, as amended. Significantly,
accused-appellant did not even bother to file a motion for a bill of particulars under
Rule 116, Section 9 of the Revised Rules on Criminal Procedure before he was
arraigned. Indeed, accused-appellant was duly arraigned under the Information and
entered a plea of not guilty to the charge without any plaint on the sufficiency of the
Information. Accused-appellant even adduced his evidence after the prosecution had
rested its case. It was only on appeal to this Court that accused-appellant questioned
for the first time the sufficiency of the Information filed against him. It is now too late
in the day for him to do so. Moreover, in People vs. Salalima, this Court held that:
[31]

Failure to specify the exact dates or time when the rapes occurred does not ipso
facto make the information defective on its face. The reason is obvious. The precise
date or time when the victim was raped is not an element of the offense. The
gravamen of the crime is the fact of carnal knowledge under any of the circumstances
enumerated under Article 335 of the Revised Penal Code. As long as it is alleged that
the offense was committed at any time as near to the actual date when the offense was
committed an information is sufficient. In previous cases, we ruled that allegations
that rapes were committed before and until October 15, 1994, sometime in the year
1991 and the days thereafter, sometime in November 1995 and some occasions prior
and/or subsequent thereto and on or about and sometime in the year 1988constitute
sufficient compliance with Section 11, Rule 110 of the Revised Rules on Criminal
Procedure.
In this case, although the indictments did not state with particularity the dates when
the sexual assaults took place, we believe that the allegations therein that the acts were
committed sometime during the month of March 1996 or thereabout, sometime during
the month of April 1996 or thereabout, sometime during the month of May 1996 or
thereabout substantially apprised appellant of the crimes he was charged with since all
the elements of rape were stated in the informations. As such, appellant cannot
complain that he was deprived of the right to be informed of the nature of the cases
filed against him.Accordingly, appellants assertion that he was deprived of the
opportunity to prepare for his defense has no leg to stand on.
The prosecution proved through the testimony of private complainant that accused-
appellant raped her two times a week in 1998. As in Criminal Cases Nos. 99-171392
and 99-171393, accused-appellant is guilty only of simple rape.
As to the crime of rape subject of Criminal Case No. 99-171391, accused-appellant
avers that he is not criminally liable of rape. We agree with accused-appellant. The
collective testimony of private complainant and her younger brother Rossel was that on
November 5, 1998, accused-appellant who was wearing a pair of short pants but naked
from waist up, entered the bedroom of private complainant, went on top of her, held her
hands, removed her panty, mashed her breasts and touched her sex organ. However,
accused-appellant saw Rossel peeping through the door and dismounted. He berated
Rossel for peeping and ordered him to go back to his room and to sleep. Accused-
appellant then left the room of the private complainant. The testimony of private
complainant on direct examination reads:
Fiscal Carisma:
Q In between 1996 and August 1997?
A Yes, sir, sometimes two (2) times a week.
Q In November of 1998, do you recall of any unusual experience that happened to you
again?
A Yes, sir.
Q What was this unusual experience of yours?
A He laid himself on top of me, sir.
Q You said he whom are you referring to?
A Freedie Lizada Jakosalem, sir.
Q The same person you pointed to earlier?
A Yes, sir.
Q You said he placed himself on top of you in November, 1998, what did he do while
he was on top of you?
A Hes smashing my breast and he was also touching my arms and my legs, sir.
Q What else if any madam witness?
A He was also touching my sex organ, sir.
Q What else, if any?
Atty. Estorco:
May we take note of the same objection your honor, the prosecution - - -
Court:
Same ruling. Let the complainant continue considering that she is crying and still
young.
Witness:
None else, sir.
Fiscal Carisma:
With what part of his body did he touch your sex organ?
Atty. Estorco:
Your Honor, that is - - -
Court:
May answer.
Fiscal Carisma:
I will re-propound the question, your honor.
You said that he touched your sex organ, will you tell the court with what part of his
body, did he touch your sex organ?
Witness:
With his hands, sir.
Q What about after November 1998 - - -was this the last incident, this unusual thing
that you experienced from the hands of the accused was this that last time, the
one you narrated in November 1998?
A Yes, sir.[32]
On cross-examination, the private complainant testified, thus:
Atty. Balaba:
Q Who was that somebody who entered the room?
A My stepfather Freedie Lizada, sir.
Q He was fully dressed at that time, during the time, is that correct?
A Yes, sir, he was dressed then, sir.
Q And he had his pants on, is that correct?
A He was wearing a short pants, sir.
Q Was it a T-shirt that he had, at that time or a polo shirt?
A He was not wearing any shirt then, sir, he was naked.
Q When you realized that somebody was entering the room were you not afraid?
A No, sir, I was not afraid.
Q What happened when you realized that somebody entered the room, and the one
who entered was your stepfather, Freedie Lizada?
A I did not mind him entering the room because I know that my brother was around but
suddenly I felt that somebody was holding me.
Q He was holding you, where were you when he held you?
A I was in the bed, sir, lying down.
Q You were lying down?
A Yes, sir.
Q What part of the body did the accused Freedie Lizada touched you?
A My two arms, my legs and my breast, sir.
Q Do you mean to tell us that he was holding your two arms and at the same time your
legs, is that what you are trying to tell us?
A He held me first in my arms and then my legs, sir.
Q He held you first by your arms, is that what you are trying to tell us?
Fiscal Carisma:
Already answered your honor, he held the arms and then the legs.
Court:
Already answered.
Atty. Balaba:
Q Your honor, I am just trying to - -
Court:
Proceed.
Atty. Balaba:
Q He held your arms with his two hands?
A Only with one hand, sir.
Q Which hand were you touched?
A I do not know which hand, sir.
Q Which arm of yours was held by Freedie Lizada?
A I could not recall, sir.
Q Which side of your body was Freedie Lizada at that time?
A I cannot recall, sir.
Q What was the position of Freedie Lizada when he held your arms?
A He was sitting on our bed, sir.
Q Which side of your bed was Freedie Lizada sitting on?
A I do not know, sir. I cannot recall.
Atty. Balaba:
Can we take a recess your honor?
Court:
How long will it take you to finish your cross?
Atty. Balaba:
We will confront the witness with so many things your honor.
Court:
Yes, thats why I am asking you how long will it take you to finish your cross?
Atty. Balaba:
About another hour, sir.
Court:
So we will be finished by 11:15, proceed.
Atty. Balaba:
You cannot also remember which leg was held by Freedie Lizada?
A I cannot recall, sir.
Q When this happened, did you not shout for help?
A I did not ask for help, I was motioning to resist him, so that he would go out, sir. I was
struggling to free myself from him, sir.
Q And you were not able to extricate yourself from him?
A I was not able to extricate myself, sir.
Q You were struggling with one arm of Lizada holding your arm, and the other hand
was holding your leg, is that what you are trying to tell us?
A No, sir, its not like that.
Q Could you tell us, what happened, you did not shout for help and you were trying to
extricate yourself, what happened?
A He suddenly went out of the room, sir.
Q Now, he went - - -
Court:
You did not shout during that time?
A No, your honor.[33]
Rossel, the nine-year old brother of the private complainant corroborated in part his
sisters testimony. He testified on direct examination, thus:
Fiscal Carisma: (continuing)
Q Now, on November 2, 1998 do you recall where you were at about 3:00 oclock?
A I was outside our house, sir.
Q Where was your house again, Mr. witness, at that time? Where was your house at
that date, time and place? At that date and time?
A 1252 Jose Abad Santos, Tondo, Manila, sir.
Court:
Q The same address?
A Yes, sir.
Fiscal Carisma:
Q On that date, time and place, do your recall where your sister Anna Lea Orillosa
was?
A Yes, sir.
Q Where was she?
A She was sleeping, sir.
Q Now, on that date, time and place you said you were outside your house, did you
stay the whole afternoon outside your house?
A No, sir.
Q Where did you go next?
A Inside, sir.
Q For what purpose did you get inside your house?
A Because I was thirsty, sir.
Q So you went to the fridge to get some water?
A Yes, sir.
Q And what happened as you went inside your house to get some water?
A I saw my stepfather removing the panty of my sister and he touched her and then he
laid on top of her, sir.
Q Do you see your stepfather inside the courtroom now?
A Yes, sir.
Q Will you point to him?
A He is the one, sir.
Court Interpreter:
Witness pointing to a male person who when asked answers to the name Freedie
Lizada.
Fiscal Carisma:
Q This thing that your father was that your stepfather did to your elder sister, did you
see this before or after you went to the fridge to get some water?
A I already got water then, sir.
Q What did you do as you saw this thing being done by your stepfather to your elder
sister?
A I was just looking at them when he saw me, sir.
Q Who, you saw who? You are referring to the accused Freedie Lizada?
A Yes, sir.
Q So, what did you do as you were seen by your stepfather?
A He scolded me, he shouted at me, he told me something and after that he went to
the other room and slept, sir.[34]
Rossel testified on cross-examination, thus:
Q So you got thirsty, is that correct, and went inside the house?
A Yes, sir.
Q And you took a glass of water from the refrigerator?
A Yes, sir.
Q And it was at this time that you saw the accused Freedie Lizada touching your
sister?
A Yes, sir.
Q Where was this refrigerator located?
A In front of the room where my sister sleeps, sir.
Q So the door of your sisters room was open?
A Yes, sir.
Q And --- okay, you said your sister was sleeping. What was the position of your sister
when you said the accused removed her panty?
A She was lying straight, but she was resisting, sir.
Q Were you noticed by your sister at that time?
A No, sir.
Q And your sister did not call for help at that time?
A No, sir.
Q And all this time you saw the accused doing this, from the refrigerator where you
were taking a glass of water?
A Yes, sir.
Q Did you not say something to the accused?
A No, sir, I was just looking.
Q So your sister was lying down when the accused removed her panty, is that what
you are trying to tell us?
A Yes, sir.
Q And where was the - - - and the accused saw you when he was removing the panty
of your sister?
A Not yet, sir, but after a while he looked at the refrigerator because he might be
thirsty.
Q So---you said the accused was touching your sister. What part of her body was
touched by the accused?
A Here, sir.
Court Interpreter:
Witness pointing at the lower portion of the body.
Atty. Balaba:
Q You saw with what hand was the accused touching your sister?
A Yes, sir.
Q What hand was he touching your sister?
A This hand, sir.
Court Interpreter:
Witness raising his right hand.
Atty. Balaba:
Q And which part of your sisters body was the accused touching with his right hand?
Your sisters body was the accused touching with his right hand?
A Her right leg, sir.
Q How about his left hand, what was the accused doing with his left hand?
A Removing her panty, sir.
Q Removing her?
A Panty, sir.
Q Which hand of your sister was being removed with the left hand of the accused?
Court:
Which?
Atty. Balaba:
Which hand, which hand?
Fiscal Carisma:
The question is vague, your honor.
Atty. Balaba:
Because he said that removing the hand ---
Fiscal Carisma:
He said removing the panty.
Atty. Balaba:
Is that panty? Im sorry.
Q So, the accused was touching with his right hand the left thigh of your sister ---
Fiscal Carisma:
The right thigh.
Atty. Balaba:
Q Rather the right thigh of your sister and with his left hand removing the panty, is that
what you are telling to tell us?
A Yes, sir.
Q And your sister all the time was trying to ---was struggling to get free, is that not
correct?
A Yes, sir, she was resisting. (witness demonstrating)
Q She was struggling --- was the accused able to remove the panty?
A Yes, sir.
Q And all the time you were there looking with the glass of water in your hand?
A Yes, sir.[35]
In light of the evidence of the prosecution, there was no introduction of the penis of
accused-appellant into the aperture or within the pudendum of the vagina of private
complainant.Hence, accused-appellant is not criminally liable for consummated rape.[36]
The issue that now comes to fore is whether or not accused-appellant is guilty of
consummated acts of lasciviousness defined in Article 336 of the Revised Penal Code
or attempted rape under Article 335 of the said Code, as amended in relation to the last
paragraph of Article 6 of the Revised Penal Code. In light of the evidence on record, we
believe that accused-appellant is guilty of attempted rape and not of acts of
lasciviousness.
Article 336 of the Revised Penal Code reads:
Art. 336. Acts of Lasciviousness.Any person who shall commit any act of
lasciviousness upon other persons of either sex, under any of the circumstances
mentioned in the preceding article, shall be punished by prision correccional. [37]

For an accused to be convicted of acts of lasciviousness, the prosecution is


burdened to prove the confluence of the following essential elements:
1. That the offender commits any act of lasciviousness or lewdness.
2. That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise unconscious; or
c. When the offended party is under 12 years of age. [38]

Lewd is defined as obscene, lustful, indecent, lecherous. It signifies that form of


immorality which has relation to moral impurity; or that which is carried on a wanton
manner.[39]
The last paragraph of Article 6 of the Revised Penal Code reads:
There is an attempt when the offender commences the commission of a felony directly
by overt acts, and does not perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his own spontaneous
desistance.
The essential elements of an attempted felony are as follows:
1. The offender commences the commission of the felony directly by overt acts;
2. He does not perform all the acts of execution which should produce the felony;
3. The offenders act be not stopped by his own spontaneous desistance;
4. The non-performance of all acts of execution was due to cause or accident other
than his spontaneous desistance. [40]

The first requisite of an attempted felony consists of two elements, namely:


(1) That there be external acts;
(2) Such external acts have direct connection with the crime intended to be
committed. [41]

An overt or external act is defined as some physical activity or deed, indicating the
intention to commit a particular crime, more than a mere planning or preparation, which
if carried out to its complete termination following its natural course, without being
frustrated by external obstacles nor by the spontaneous desistance of the perpetrator,
will logically and necessarily ripen into a concrete offense. [42] The raison detre for the law
requiring a direct overt act is that, in a majority of cases, the conduct of the accused
consisting merely of acts of preparation has never ceased to be equivocal; and this is
necessarily so, irrespective of his declared intent. It is that quality of being equivocal
that must be lacking before the act becomes one which may be said to be a
commencement of the commission of the crime, or an overt act or before any fragment
of the crime itself has been committed, and this is so for the reason that so long as the
equivocal quality remains, no one can say with certainty what the intent of the accused
is.[43] It is necessary that the overt act should have been the ultimate step towards the
consummation of the design. It is sufficient if it was the first or some subsequent step in
a direct movement towards the commission of the offense after the preparations are
made.[44] The act done need not constitute the last proximate one for completion. It is
necessary, however, that the attempt must have a causal relation to the intended
crime.[45] In the words of Viada, the overt acts must have an immediate and necessary
relation to the offense.[46]
Acts constitutive of an attempt to commit a felony should be distinguished
from preparatory acts which consist of devising means or measures necessary
for accomplishment of a desired object or end.[47] One perpetrating preparatory
acts is not guilty of an attempt to commit a felony. However, if the preparatory
acts constitute a consummated felony under the law, the malefactor is guilty of
such consummated offense.[48] The Supreme Court of Spain, in its decision of March
21, 1892, declared that for overt acts to constitute an attempted offense, it is necessary
that their objective be known and established or such that acts be of such nature that
they themselves should obviously disclose the criminal objective necessarily intended,
said objective and finality to serve as ground for designation of the offense. [49]
There is persuasive authority that in offenses not consummated as the material
damage is wanting, the nature of the action intended (accion fin) cannot exactly be
ascertained but the same must be inferred from the nature of the acts executed (accion
medio).[50] Hence, it is necessary that the acts of the accused must be such that, by their
nature, by the facts to which they are related, by circumstances of the persons
performing the same, and by the things connected therewith, that they are aimed at the
consummation of the offense. This Court emphasized in People vs. Lamahang[51] that:
The relation existing between the facts submitted for appreciation and the offense
which said facts are supposed to produce must be direct; the intention must be
ascertained from the facts and therefore it is necessary, in order to avoid regrettable
instances of injustice, that the mind be able to cause a particular injury.[52]

If the malefactor does not perform all the acts of execution by reason of his
spontaneous desistance, he is not guilty of an attempted felony.[53] The law does not
punish him for his attempt to commit a felony.[54] The rationale of the law, as explained by
Viada:
La Ley, en efecto, no hiere sino a pesar suyo; prefiere impedir el crimen que
castigarlo. Si el autor de la tentativa, despues de haber comenzado a ejecutar el delito
por actos exteriores, se detiene, por un sentimiento libre y espontaneo, en el borde del
abismo, salvo esta. Es un llamamiento al remordimiento, a la conciencia, una gracia
un perdon que concede la Ley al arrepentimiento voluntario. [55]

As aptly elaborated on by Wharton:


First, the character of an attempt is lost when its execution is voluntarily
abandoned. There is no conceivable overt act to which the abandoned purpose could
be attached. Secondly, the policy of the law requires that the offender, so long as he is
capable of arresting an evil plan, should be encouraged to do so, by saving him
harmless in case of such retreat before it is possible for any evil consequences to
ensue. Neither society, nor any private person, has been injured by his act. There is no
damage, therefore, to redress. To punish him after retreat and abandonment would be
to destroy the motive for retreat and abandonment. [56]

It must be borne in mind, however, that the spontaneous desistance of a


malefactor exempts him from criminal liability for the intended crime but it does
not exempt him from the crime committed by him before his desistance.[57]
In light of the facts established by the prosecution, we believe that accused-
appellant intended to have carnal knowledge of private complainant. The overt
acts of accused-appellant proven by the prosecution were not mere preparatory
acts. By the series of his overt acts, accused-appellant had commenced the
execution of rape which, if not for his spontaneous desistance, will ripen into the
crime of rape. Although accused-appellant desisted from performing all the acts
of execution however his desistance was not spontaneous as he was impelled to
do so only because of the sudden and unexpected arrival of Rossel. Hence,
accused-appellant is guilty only of attempted rape.[58] In a case of similar factual
backdrop as this case, we held:
Applying the foregoing jurisprudence and taking into account Article 6 of the Revised
Penal Code, the appellant can only be convicted of attempted rape. He commenced
the commission of rape by removing his clothes, undressing and kissing his victim
and lying on top of her. However, he failed to perform all the acts of execution which
should produce the crime of rape by reason of a cause other than his own spontaneous
desistance, i.e., by the timely arrival of the victims brother. Thus, his penis merely
touched Mary Joys private organ. Accordingly, as the crime committed by the
appellant is attempted rape, the penalty to be imposed on him should be an
indeterminate prison term of six (6) years of prision correccional as minimum to
twelve (12) years of prision mayor as maximum.
The penalty for attempted rape is prision mayor which is two degrees lower
than reclusion perpetua.[59] Accused-appellant should be meted an indeterminate penalty
the minimum of which should be taken from prision correccional which has a range of
from six months and one day to six years and the maximum of which shall be taken
from the medium period of prision mayor which has a range of from eight years and one
day to ten years, without any modifying circumstance. Accused-appellant is also liable
to private complainant for moral damages in the amount of P25,000.00.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of
Manila, Branch 54, is SET ASIDE. Another judgment is hereby rendered as follows:
1. In Criminal Case No. 99-171390, accused-appellant is hereby found guilty
beyond reasonable doubt of simple rape under Article 335 of the Revised Penal Code
as amended and is hereby meted the penalty of reclusion perpetua. Accused-appellant
is also hereby ordered to pay private complainant Analia Orillosa the amounts
of P50,000.00 by way of civil indemnity and P50,000.00 by way of moral damages;
2. In Criminal Case No. 99-171391, accused-appellant is hereby found guilty of
attempted rape under Article 335 of the Revised Penal Code as amended in relation to
Article 6 of the said Code and is hereby meted an indeterminate penalty of from six
years of prision correccional in its maximum period, as minimum to ten years of prision
mayor in its medium period, as maximum. Accused-appellant is hereby ordered to pay
private complainant Analia Orillosa the amount of P25,000.00 by way of moral
damages; and,
3. In Criminal Cases Nos. 99-171392 and 99-171393, accused-appellant is hereby
found guilty beyond reasonable doubt of two counts of simple rape, defined in Article
335 of the Revised Penal Code as amended and is hereby meted the penalty
of reclusion perpetua for each count. Accused-appellant is hereby ordered to pay to
private complainant Analia Orillosa the amount of P50,000.00 by way of civil indemnity
and the amount of P50,000.00 by way of moral damages for each count, or a total
amount of P200,000.00.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-
Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-
Morales, and Azcuna, JJ., concur.
Bellosillo, J., on leave.

[1]
Penned by Judge Manuel T. Muro.
[2]
Accused-appellant was charged under the name Freedie Lizada.
[3]
Original records, pp. 1-4.
[4]
Id., at 73.
[5]
The prosecution presented four witnesses, namely, Analia Orillosa, Rose Orillosa, Rossel Orillosa & Dr.
Armie Umil.
[6]
Exhibit A.
[7]
Exhibit 2.
[8]
Exhibit C.
[9]
Supra.
[10]
Exhibit 2.
[11]
Records, p. 147. (The name of accused-appellant is erroneously stated as Fredie Lizada.)
[12]
Rollo, p. 51.
[13]
Id., at 53.
[14]
Supra.
[15]
Francisco vs. Permskul, et al., 173 SCRA 327 (1989).
[16]
Vide Note 14.
[17]
Hernandez vs. Hon. Colayco, et al., 64 SCRA 480 (1975).
[18]
People vs. Bugarin, 273 SCRA 384 (1997).
[19]
People vs. Sta. Ana, 291 SCRA 188 (1998).
[20]
TSN, Orillosa, June 3, 1999, pp. 8-28.
[21] 340 SCRA 481 (2000).
[22]
Ibid., p. 489.
[23]
Ibid., p. 488.
[24]
People vs. Cabingas, et al., 329 SCRA 21 (2000).
[25]
People vs. Borja, 267 SCRA 370 (1997).
[26]
278 SCRA 78 (1997).
[27]
TSN, Orillosa, June 3, 1999, pp. 11-12.
[28]
People vs. Torio, 318 SCRA 345 (1999).
[29]
People vs. Alcala, 307 SCRA 330 (1999).
[30]
Id., supra.
[31]
363 SCRA 192 (2001).
[32]
TSN, Orillosa, June 3, 1999, pp. 18-20.
[33]
TSN, Orillosa, June 7, 1999, pp. 39-45.
[34]
TSN, Orillosa, June 28, 1999, pp. 6-10.
[35]
TSN, Orillosa, June 28, 1999, pp. 13-20.
[36]
People vs. Campuhan, 329 SCRA 270 (2000).
[37]
Id., supra.
[38]
Id., supra.
[39]
People vs. Tayag, 329 SCRA 491 (2000).
[40]
Reyes, Revised Penal Code, 1981, Vol. I, p. 98, supra.
[41]
Id., supra, p. 98.
[42]
Id., supra, pp. 98-99.
[43]
People vs. Miller, 2 Cal. 2d., 527, 531-532, 42 P.2d. 308, 310, citing Wharton.
[44]
People vs. Gibson, 94 Cal. App. 2d. 468.
[45]
Wharton, Criminal Law, Vol. 1, 12 ed. 287.
[46]
Vide Note 32, p. 47.
[47]
Wharton, Criminal Law, idem, supra, p. 293.
[48]
Reyes, Revised Penal Code, supra, p. 97.
[49]
People vs. Lamahang, 62 Phil. 703 (1935).
[50]
1 Groizard, p. 99, cited in People vs. M. Lamahang, 61 Phil. 703 (1935).
[51]
See note 48.
[52]
Ibid., p. 707.
[53]
Spontaneous means proceeding from natural feeling or native tendency without external constraint;
synonymous with impulsive, automatic and mechanical. (Webster, Third New International
Dictionary, p. 2204).
[54]
Reyes, idem, supra, p. 104.
[55]
Aquino, Revised Penal Code, Vol. 1, 1987 ed.
[56]
Wharton, Criminal Law, Vol. 1, pp. 307-308, supra.
[57]
Reyes, Revised Penal Code, supra, p. 105.
[58]
People vs. Alcoreza, G.R. No. 135452-53, October 5, 2001.
[59]
Article 51, Revised Penal Code.

EN BANC
[G.R. No. 129433. March 30, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff, vs. PRIMO CAMPUHAN Y
BELLO, accused.
DECISION
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita[1] finally did away with frustrated rape[2] and
allowed only attempted rape and consummated rape to remain in our statute books.
The instant case lurks at the threshold of another emasculation of the stages of
execution of rape by considering almost every attempt at sexual violation of a woman as
consummated rape, that is, if the contrary view were to be adopted. The danger there is
that that concept may send the wrong signal to every roaming lothario, whenever the
opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since
after all any attempted fornication would be considered consummated rape and
punished as such. A mere strafing of the citadel of passion would then be considered a
deadly fait accompli, which is absurd.
In Orita we held that rape was consummated from the moment the offender had
carnal knowledge of the victim since by it he attained his objective. All the
elements of the offense were already present and nothing more was left for the
offender to do, having performed all the acts necessary to produce the crime and
accomplish it. We ruled then that perfect penetration was not essential; any
penetration of the female organ by the male organ, however slight, was sufficient.
The Court further held that entry of the labia or lips of the female organ, even
without rupture of the hymen or laceration of the vagina, was sufficient to warrant
conviction for consummated rape. We distinguished consummated rape from
attempted rape where there was no penetration of the female organ because not
all acts of execution were performed as the offender merely commenced the
commission of a felony directly by overt acts.[3] The inference that may be derived
therefrom is that complete or full penetration of the vagina is not required for
rape to be consummated. Any penetration, in whatever degree, is enough to raise
the crime to its consummated stage.
But the Court in Orita clarified the concept of penetration in rape by requiring
entry into the labia or lips of the female organ, even if there be no rupture of the
hymen or laceration of the vagina, to warrant a conviction for consummated rape.
While the entry of the penis into the lips of the female organ was considered
synonymous with mere touching of the external genitalia, e.g., labia majora, labia
minora, etc.,[4] the crucial doctrinal bottom line is
that touching must be inextricably viewed in light of, in relation to, or as an
essential part of, the process of penile penetration, and not just mere touching in
the ordinary sense. In other words, the touching must be tacked to the
penetration itself. The importance of the requirement of penetration, however
slight, cannot be gainsaid because where entry into the labia or the lips of the
female genitalia has not been established, the crime committed amounts merely
to attempted rape.
Verily, this should be the indicium of the Court in determining whether rape has been
committed either in its attempted or in its consummated stage; otherwise, no substantial
distinction would exist between the two, despite the fact that penalty-wise, this
distinction, threadbare as it may seem, irrevocably spells the difference between life and
death for the accused - a reclusive life that is not even perpetua but only temporal on
one hand, and the ultimate extermination of life on the other. And, arguing on another
level, if the case at bar cannot be deemed attempted but consummated rape, what then
would constitute attempted rape? Must our field of choice be thus limited only to
consummated rape and acts of lasciviousness since attempted rape would no longer be
possible in light of the view of those who disagree with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and
sentenced by the court a quo to the extreme penalty of death,[5] hence this case before
us on automatic review under Art. 335 of the Revised Penal Code as amended by RA
7659.[6]
As may be culled from the evidence on record, on 25 April 1996, at around 4 oclock in
the afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel
Pamintuan, went down from the second floor of their house to prepare Milo chocolate
drinks for her two (2) children. At the ground floor she met Primo Campuhan who was
then busy filling small plastic bags with water to be frozen into ice in the freezer located
at the second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As
Corazon was busy preparing the drinks, she heard one of her daughters cry, "Ayo'ko,
ayo'ko!"[7] prompting Corazon to rush upstairs. Thereupon, she saw Primo Campuhan
inside her childrens room kneeling before Crysthel whose pajamas or "jogging pants"
and panty were already removed, while his short pants were down to his knees.
According to Corazon, Primo was forcing his penis into Crysthels vagina. Horrified, she
cursed the accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He
evaded her blows and pulled up his pants. He pushed Corazon aside when she tried to
block his path. Corazon then ran out and shouted for help thus prompting her brother, a
cousin and an uncle who were living within their compound, to chase the
accused.[8] Seconds later, Primo was apprehended by those who answered Corazon's
call for help. They held the accused at the back of their compound until they were
advised by their neighbors to call the barangay officials instead of detaining him for his
misdeed. Physical examination of the victim yielded negative results. No evident sign of
extra-genital physical injury was noted by the medico-legal officer on Crysthels body as
her hymen was intact and its orifice was only 0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense. He maintained his
innocence and assailed the charge as a mere scheme of Crysthel's mother who
allegedly harbored ill will against him for his refusal to run an errand for her.[9] He
asserted that in truth Crysthel was in a playing mood and wanted to ride on his back
when she suddenly pulled him down causing both of them to fall down on the floor. It
was in this fallen position that Corazon chanced upon them and became hysterical.
Corazon slapped him and accused him of raping her child. He got mad but restrained
himself from hitting back when he realized she was a woman. Corazon called for help
from her brothers to stop him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and accosted Primo.
Vicente punched him and threatened to kill him. Upon hearing the threat, Primo
immediately ran towards the house of Conrado Plata but Vicente followed him there.
Primo pleaded for a chance to explain as he reasoned out that the accusation was not
true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead
pipe, Primo raised his hands and turned his back to avoid the blow. At this moment, the
relatives and neighbors of Vicente prevailed upon him to take Primo to
the barangay hall instead, and not to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997
found him guilty of statutory rape, sentenced him to the extreme penalty of death, and
ordered him to pay his victim P50,000.00 for moral damages, P25,000.00 for exemplary
damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma. Corazon
Pamintuan. He argues that her narration should not be given any weight or credence
since it was punctured with implausible statements and improbabilities so inconsistent
with human nature and experience. He claims that it was truly inconceivable for him to
commit the rape considering that Crysthels younger sister was also in the room playing
while Corazon was just downstairs preparing Milo drinks for her daughters. Their
presence alone as possible eyewitnesses and the fact that the episode happened within
the family compound where a call for assistance could easily be heard and responded
to, would have been enough to deter him from committing the crime. Besides, the door
of the room was wide open for anybody to see what could be taking place inside. Primo
insists that it was almost inconceivable that Corazon could give such a vivid description
of the alleged sexual contact when from where she stood she could not have possibly
seen the alleged touching of the sexual organs of the accused and his victim. He
asserts that the absence of any external signs of physical injuries or of penetration of
Crysthels private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the testimony of Corazon
that she saw Primo with his short pants down to his knees kneeling before Crysthel
whose pajamas and panty were supposedly "already removed" and that Primo was
"forcing his penis into Crysthels vagina." The gravamen of the offense of statutory rape
is carnal knowledge of a woman below twelve (12), as provided in Art. 335, par. (3), of
the Revised Penal Code. Crysthel was only four (4) years old when sexually molested,
thus raising the penalty, from reclusion perpetua to death, to the single indivisible
penalty of death under RA 7659, Sec. 11, the offended party being below seven (7)
years old. We have said often enough that in concluding that carnal knowledge took
place, full penetration of the vaginal orifice is not an essential ingredient, nor is the
rupture of the hymen necessary; the mere touching of the external genitalia by the penis
capable of consummating the sexual act is sufficient to constitute carnal
knowledge.[10] But the act of touching should be understood here as inherently part of the
entry of the penis into the labias of the female organ and not mere touching alone of
the mons pubis or the pudendum.
In People v. De la Pea[11] we clarified that the decisions finding a case for rape even if
the attackers penis merely touched the external portions of the female genitalia were
made in the context of the presence or existence of an erect penis capable of full
penetration. Where the accused failed to achieve an erection, had a limp or flaccid
penis, or an oversized penis which could not fit into the victim's vagina, the Court
nonetheless held that rape was consummated on the basis of the victim's testimony that
the accused repeatedly tried, but in vain, to insert his penis into her vagina and in all
likelihood reached the labia of her pudendum as the victim felt his organ on the lips of
her vulva,[12] or that the penis of the accused touched the middle part of her
vagina.[13] Thus, touching when applied to rape cases does not simply mean mere
epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis
on the external layer of the victims vagina, or the mons pubis, as in this case. There
must be sufficient and convincing proof that the penis
indeed touched the labias or slid into the female organ, and not merely stroked the
external surface thereof, for an accused to be convicted of consummated rape.[14] As
the labias, which are required to be "touched" by the penis, are by their natural situs or
location beneath the mons pubis or the vaginal surface, to touch them with the penis is
to attain some degree of penetration beneath the surface, hence, the conclusion that
touching the labia majora or the labia minora of the pudendum constitutes
consummated rape.
The pudendum or vulva is the collective term for the female genital organs that are
visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the
clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes
hairy after puberty, and is instantly visible within the surface. The next layer is the labia
majora or the outer lips of the female organ composed of the outer convex surface and
the inner surface. The skin of the outer convex surface is covered with hair follicles and
is pigmented, while the inner surface is a thin skin which does not have any hair but has
many sebaceous glands. Directly beneath the labia majora is the labia
minora.[15] Jurisprudence dictates that the labia majora must be entered for rape to be
consummated,[16] and not merely for the penis to stroke the surface of the female organ.
Thus, a grazing of the surface of the female organ or touching the mons pubis of
the pudendum is not sufficient to constitute consummated rape. Absent any showing of
the slightest penetration of the female organ, i.e., touching of either labia of
the pudendumby the penis, there can be no consummated rape; at most, it can only be
attempted rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not been confined to the oft-quoted
"touching of the female organ,"[17] but has also progressed into being described as "the
introduction of the male organ into the labia of the pudendum,"[18] or "the bombardment
of the drawbridge."[19] But, to our mind, the case at bar merely constitutes a "shelling of
the castle of orgasmic potency," or as earlier stated, a "strafing of the citadel of
passion."
A review of the records clearly discloses that the prosecution utterly failed to discharge
its onus of proving that Primos penis was able to penetrate Crysthels vagina however
slight. Even if we grant arguendo that Corazon witnessed Primo in the act of sexually
molesting her daughter, we seriously doubt the veracity of her claim that she saw the
inter-genital contact between Primo and Crysthel. When asked what she saw upon
entering her childrens room Corazon plunged into saying that she saw Primo poking his
penis on the vagina of Crysthel without explaining her relative position to them as to
enable her to see clearly and sufficiently, in automotive lingo, the contact point. It should
be recalled that when Corazon chanced upon Primo and Crysthel, the former was
allegedly in a kneeling position, which Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest of the
accused is pinning down the victim, while his right hand is holding his
penis and his left hand is spreading the legs of the victim).
It can reasonably be drawn from the foregoing narration that Primos kneeling position
rendered an unbridled observation impossible. Not even a vantage point from the side
of the accused and the victim would have provided Corazon an unobstructed view of
Primos penis supposedly reaching Crysthels external genitalia, i.e., labia majora, labia
minora, hymen, clitoris, etc., since the legs and arms of Primo would have hidden his
movements from Corazons sight, not to discount the fact that Primos right hand was
allegedly holding his penis thereby blocking it from Corazons view. It is the burden of
the prosecution to establish how Corazon could have seen the sexual contact and to
shove her account into the permissive sphere of credibility. It is not enough that she
claims that she saw what was done to her daughter. It is required that her claim be
properly demonstrated to inspire belief. The prosecution failed in this respect, thus we
cannot conclude without any taint of serious doubt that inter-genital contact was at all
achieved. To hold otherwise would be to resolve the doubt in favor of the prosecution
but to run roughshod over the constitutional right of the accused to be presumed
innocent.
Corazon insists that Primo did not restrain himself from pursuing his wicked intention
despite her timely appearance, thus giving her the opportunity to fully witness his
beastly act.
We are not persuaded. It is inconsistent with mans instinct of self-preservation to remain
where he is and persist in satisfying his lust even when he knows fully well that his
dastardly acts have already been discovered or witnessed by no less than the mother of
his victim. For, the normal behavior or reaction of Primo upon learning of Corazons
presence would have been to pull his pants up to avoid being caught literally with his
pants down. The interval, although relatively short, provided more than enough
opportunity for Primo not only to desist from but even to conceal his evil design.
What appears to be the basis of the conviction of the accused was Crysthel's answer to
the question of the court -
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily said, "No."
Thus -
Q: But did his penis penetrate your organ?
A: No, sir.[20]
This testimony alone should dissipate the mist of confusion that enshrouds the question
of whether rape in this case was consummated. It has foreclosed the possibility of
Primos penis penetrating her vagina, however slight. Crysthel made a categorical
statement denying penetration,[21] obviously induced by a question propounded to her
who could not have been aware of the finer distinctions
between touching and penetration. Consequently, it is improper and unfair to attach to
this reply of a four (4)-year old child, whose vocabulary is yet as underdeveloped as her
sex and whose language is bereft of worldly sophistication, an adult interpretation that
because the penis of the accused touched her organ there was sexual entry. Nor can it
be deduced that in trying to penetrate the victim's organ the penis of the
accused touched the middle portion of her vagina and entered the labia of
her pudendum as the prosecution failed to establish sufficiently that Primo made efforts
to penetrate Crysthel.[22] Corazon did not say, nay, not even hint that Primo's penis was
erect or that he responded with an erection.[23] On the contrary, Corazon even narrated
that Primo had to hold his penis with his right hand, thus showing that he had yet to
attain an erection to be able to penetrate his victim.
Antithetically, the possibility of Primos penis having breached Crysthels vagina is belied
by the child's own assertion that she resisted Primos advances by putting her legs close
together;[24]consequently, she did not feel any intense pain but just felt "not happy" about
what Primo did to her.[25] Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!"
In cases where penetration was not fully established, the Court had anchored its
conclusion that rape nevertheless was consummated on the victim's testimony that she
felt pain, or the medico-legal finding of discoloration in the inner lips of the vagina, or the
labia minora was already gaping with redness, or the hymenal tags were no longer
visible.[26] None was shown in this case. Although a child's testimony must be received
with due consideration on account of her tender age, the Court endeavors at the same
time to harness only what in her story appears to be true, acutely aware of the equally
guaranteed rights of the accused. Thus, we have to conclude that even on the basis of
the testimony of Crysthel alone the accused cannot be held liable for consummated
rape; worse, be sentenced to death.
Lastly, it is pertinent to mention the medico legal officer's finding in this case that there
were no external signs of physical injuries on complaining witness body to conclude
from a medical perspective that penetration had taken place. As Dr. Aurea P. Villena
explained, although the absence of complete penetration of the hymen does not negate
the possibility of contact, she clarified that there was no medical basis to hold that there
was sexual contact between the accused and the victim.[27]
In cases of rape where there is a positive testimony and a medical certificate, both
should in all respects complement each other; otherwise, to rely on the testimonial
evidence alone, in utter disregard of the manifest variance in the medical certificate,
would be productive of unwarranted or even mischievous results. It is necessary to
carefully ascertain whether the penis of the accused in reality entered the
labial threshold of the female organ to accurately conclude that rape was consummated.
Failing in this, the thin line that separates attempted rape from consummated rape will
significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when
the offender commences the commission of rape directly by overt acts, and does not
perform all the acts of execution which should produce the crime of rape by reason of
some cause or accident other than his own spontaneous desistance. All the elements of
attempted rape - and only of attempted rape - are present in the instant case, hence,
the accused should be punished only for it.
The penalty for attempted rape is two (2) degrees lower than the imposable penalty of
death for the offense charged, which is statutory rape of a minor below seven (7) years.
Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years and
one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the
absence of any mitigating or aggravating circumstance, the maximum of the penalty to
be imposed upon the accused shall be taken from the medium period of reclusion
temporal, the range of which is fourteen (14) years, eight (8) months and (1) day to
seventeen (17) years and four (4) months, while the minimum shall be taken from the
penalty next lower in degree, which is prision mayor, the range of which is from six (6)
years and one (1) day to twelve (12) years, in any of its periods.
WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY"
CAMPUHAN Y BELLO guilty of statutory rape and sentencing him to death and to pay
damages is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and
sentenced to an indeterminate prison term of eight (8) years four (4) months and ten
(10) days of prision mayor medium as minimum, to fourteen (14) years ten (10) months
and twenty (20) days of reclusion temporal medium as maximum. Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo,
Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Panganiban, J., in the result.

[1]
People v. Ceilito Orita alias "Lito," G.R. No. 88724, 3 April 1990, 184 SCRA 105.
[2]
People v. Eriia, 50 Phil. 998 (1927)
[3]
See Note 1.
[4]
People v. Quinaola, G.R. No. 126148, 5 May 1999.
[5]
Decision penned by Judge Benjamin T. Antonio, RTC-Br. 170, Malabon, Metro Manila (Crim. Case No. 16857-
MN)
[6]
An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the Revised Penal
Code, as amended, other Special Penal Laws, and for Other Purposes, effective on 31 December 1993.
[7]
"Ayoko," apparently is a contraction of "ayaw ko." "Ayoko, ayoko" means "I dont like, I dont like."
[8]
Corazons brother Vicente Plata responded to her call, as well as others living within the compound namely,
Criselda Carlos Manalac, Fernando Bondal, Jose Carlos and Reynoso Carlos.
[9]
Accused alleged that the charge of rape was merely concocted by Ma. Corazon Pamintuan because of his refusal
to buy medicine for her, and perform the other tasks asked of him by her relatives.
[10]
See the following American cases where the doctrine originated: Kenny v. State, 65 L.R.A. 316; Rodgers v. State,
30 Tex. App. 510; Brauer v. State, 25 Wis. 413, as cited in People v. Oscar, 48 Phil. 528 (1925)
[11]
G.R. No. 104947, 30 June 1994, 233 SCRA 573.
[12]
People v. Bacalso, G.R. No. 89811, 22 March 1991, 195 SCRA 557; People v. Hangdaan, G.R. No. 90035, 13
September 1991, 201 SCRA 568; People v. De la Pea, G.R. No. 104947, 30 June 1994, 233 SCRA 573; People v.
Clopino, G.R. No. 117322, 21 May 1998, 290 SCRA 432; People v. Quinaola, G.R. No. 126148, 5 May 1999.
[13]
People v. Navarro, G.R. No. 96251, 11 May 1993, 221 SCRA 684.
[14]
In People v. Quinaola (G.R. No. 126148, 5 May 1999) the Court held the word "touching" to be synonymous with
the entry by the penis into the labia declaring that "x x x the crime of rape is deemed consummated even when the
mans penis merely entered the labia or lips of the female organ, or as once said in a case, by the mere touching of
the external genitalia by the penis capable of sexual act x x x x"
[15]
Mishell, Stenchever, Droegemueller, Herbst Comprehensive Gynecology, 3rd Ed., 1997, pp. 42-44.
[16]
People v. Escober, G.R. Nos. 122980-81, 6 November 1997, 281 SCRA 498; People v. Galimba, G.R. Nos.
111563-64, 20 February 1996, 253 SCRA 722; People v. Sanchez, G.R. Nos. 98402-04, 16 November 1995, 250
SCRA 14; People v.Lazaro, G.R. No. 99263, 12 October 1995, 249 SCRA 234; People v. Rejano, G.R. Nos.
105669-70, 18 October 1994, 237 SCRA 627; People v. Salinas, G.R. No. 107204, 6 May 1994, 232 SCRA 274;
People v. Palicte, G.R. No. 101088, 27 January 1994, 229 SCRA 543; People v. Arce, G.R. Nos. 101833-34, 20
October 1993, 227 SCRA 406; People v. Garcia, G.R. No. 92269, 30 July 1993, 244 SCRA 776; People v. Tismo,
No. L-44773, 4 December 1991, 204 SCRA 535; People v. Mayoral, G.R. Nos. 96094-95, 13 November 1991, 203
SCRA 528, People v. Hangdaan, G.R. No. 90035, 13 September 1991, 201 SCRA 568; People v. Caballes, G.R.
Nos. 93437-45, 12 July 1991, 199 SCRA 152; People v. Bacalso, G.R. No. 89811, 22 March 1991, 195 SCRA 557.
[17]
People v. Clopino, G.R. No. 117322, 21 May 1998, 290 SCRA 432.
[18]
See Note 4.
[19]
People v. Escober, G.R. Nos. 122980-81, 6 November 1997, 281 SCRA 498.
[20]
TSN, 7 October 1996, p. 20.
[21]
In Dulla v. CA (G.R. No. 123164, 18 February 2000) the Court considered the testimony of a child aged three (3)
years and ten (10) months old sufficient and credible even if she answered "yes" or "no" to questions propounded to
her. However, the victim therein, who was much younger than Crysthel in the instant case, demonstrated what she
meant when unable to articulate what was done to her, even made graphic descriptions of the accuseds penis and
demonstrated the push and pull movement made by the accused. Yet conspicuously, the Court in the Dulla case
found the accused guilty only of acts of lasciviousness on the basis of certain inconsistencies in the testimony of the
victim on whether or not petitioner took off her underwear.
[22]
In People v. Clopino (G.R. No. 117322, 21 May 1998) the Court rejected the argument of the accused that he
should only be convicted of either attempted rape or acts of lasciviousness. It adopted the reasoning of the Solicitor
General and declared that it was impossible for the penis of accused-appellant not to have touched the labia of the
pudendum in trying to penetrate her. However, such logical conclusion was deduced in the light of evidence
presented that accused-appellant made determined attempts to penetrate and insert his penis into the victims vagina
and even engaged her in foreplay by inserting his finger into her genitalia. The same inference cannot be made in the
instant case because of the variance in the factual milieu.
[23]
Decisions finding the accused guilty of consummated rape even if the attacker's penis merely touched the female
external genitalia were made in the context of the presence of an erect penis capable of full penetration, failing in
which there can be no consummated rape (People v. De la Pea, see Note 11)
[24]
See Note 16, p. 21.
[25]
Ibid.
[26]
People v. Villamayor, G.R. Nos. 97474-76, 18 July 1991, 199 SCRA 472; People v. Palicte, G.R. No. 101088, 27
January 1994, 229 SCRA 543; People v. Sanchez, G.R. Nos. 98402-04, 16 November 1995, 250 SCRA 14; People
v. Gabris, G.R. No. 116221, 11 July 1996, 258 SCRA 663; People v. Gabayron, G.R. No. 102018, 21 August 1997,
278 SCRA 78.
Q: Will you tell the Court, what do you mean by this No. 1 conclusion appearing in Exhibit "A" which I quote
[27]

"no evident sign of extra-genital physical injury noted on the body of the subject at the time of the examination?"
A: That means I was not able to see injuries outside the genital of the victim, sir.
Q: I presumed (sic) that you conducted genital physical examination on the victim in this case?
A: Yes sir.
Q: And you also made the result of the genital physical examination shows (sic) that there is no injury on any part of
the body of the patient, correct, Doctor?
A: Yes sir.
Q: There was no medical basis for saying that might have a contact between the patient and the accused in this case?
A: Yes sir (TSN, 8 October 1996, pp. 3-4)

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 88724 April 3, 1990
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.
C. Manalo for defendant-appellant.

MEDIALDEA, J.:
The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-
031-B before the Regional Trial Court, Branch II, Borongan, Eastern Samar. The information filed in
the said case reads as follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the
offended party, accuses CEILITO ORITA alias LITO of the crime of Rape committed as
follows:
That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at
Victoria St., Poblacion, Borongan, Eastern Samar, Philippines, and within the jurisdiction of
this Honorable Court, above named accused with lewd designs and by the use of a
Batangas knife he conveniently provided himself for the purpose and with threats and
intimidation, did, then and there wilfully, unlawfully and feloniously lay with and succeeded in
having sexual intercourse with Cristina S. Abayan against her will and without her consent.
CONTRARY TO LAW.
Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the
witnesses for the People testified and the exhibits were formally offered and admitted, the
prosecution rested its case. Thereafter, the defense opted not to present any exculpatory evidence
and instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its decision, the
dispositive portion of which reads (pp. 59-60, Rollo):
WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @
LITO, of the crime of Frustrated Rape (Art. 335, RPC), beyond reasonable doubt, with the
aggravating circumstances of dwelling and nightime (sic) with no mitigating circumstance to
offset the same, and considering the provisions of the Indeterminate Sentence Law, imposes
on accused an imprisonment of TEN (10) YEARS and ONE (1) DAY,PRISION MAYOR, as
minimum to TWELVE (12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S.
ABAYAN, the amount of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment
in case of insolvency, and to pay costs.
SO ORDERED.
Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29,
1988, the Court of Appeals rendered its decision, the dispositive portion of which reads (p.
102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty
of the crime of rape, and consequently, sentenced to suffer imprisonment of reclusion
perpetua and to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988
decision and forwarded the case to this Court, considering the provision of Section 9, paragraph 3 of
Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph 3, subparagraph 1 of the
Judiciary Act of 1948.
The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's
College at Borongan, Eastern Samar. Appellant was a Philippine Constabulary (PC) soldier.
In the early morning of March 20, 1983, complainant arrived at her boarding house. Her
classmates had just brought her home from a party (p. 44, tsn, May 23, 1984). Shortly after
her classmates had left, she knocked at the door of her boarding house (p. 5, ibid). All of a
sudden, somebody held her and poked a knife to her neck. She then recognized appellant
who was a frequent visitor of another boarder (pp. 8-9, ibid).
She pleaded with him to release her, but he ordered her to go upstairs with him. Since the
door which led to the first floor was locked from the inside, appellant forced complainant to
use the back door leading to the second floor (p. 77, ibid). With his left arm wrapped around
her neck and his right hand poking a "balisong" to her neck, appellant dragged complainant
up the stairs (p. 14, ibid). When they reached the second floor, he commanded her to look
for a room. With the Batangas knife still poked to her neck, they entered complainant's room.
Upon entering the room, appellant pushed complainant who hit her head on the wall. With
one hand holding the knife, appellant undressed himself. He then ordered complainant to
take off her clothes. Scared, she took off her T-shirt. Then he pulled off her bra, pants and
panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted her. He made her hold his penis
and insert it in her vagina. She followed his order as he continued to poke the knife to her. At
said position, however, appellant could not fully penetrate her. Only a portion of his penis
entered her as she kept on moving (p. 23, ibid).
Appellant then lay down on his back and commanded her to mount him. In this position, only
a small part again of his penis was inserted into her vagina. At this stage, appellant had both
his hands flat on the floor. Complainant thought of escaping (p. 20, ibid).
She dashed out to the next room and locked herself in. Appellant pursued her and climbed
the partition. When she saw him inside the room, she ran to another room. Appellant again
chased her. She fled to another room and jumped out through a window (p. 27, ibid).
Still naked, she darted to the municipal building, which was about eighteen meters in front of
the boarding house, and knocked on the door. When there was no answer, she ran around
the building and knocked on the back door. When the policemen who were inside the
building opened the door, they found complainant naked sitting on the stairs crying. Pat.
Donceras, the first policeman to see her, took off his jacket and wrapped it around her. When
they discovered what happened, Pat. Donceras and two other policemen rushed to the
boarding house. They heard a sound at the second floor and saw somebody running away.
Due to darkness, they failed to apprehend appellant.
Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital
where she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical
Certificate (Exhibit "A") which states:
Physical Examination — Patient is fairly built, came in with loose clothing with no
under-clothes; appears in state of shock, per unambulatory.
PE Findings — Pertinent Findings only.
Neck- — Circumscribed hematoma at Ant. neck.
Breast — Well developed, conical in shape with prominent nipples; linear abrasions
below (L) breast.
Back — Multiple pinpoint marks.
Extremities — Abrasions at (R) and (L) knees.
Vulva — No visible abrasions or marks at the perineal area or over the
vulva, errythematous (sic) areas noted surrounding vaginal orifice, tender, hymen
intact; no laceration fresh and old noted; examining finger can barely enter and with
difficulty; vaginal canal tight; no discharges noted.
As aforementioned, the trial court convicted the accused of frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the
witnesses; and
2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras because they "show
remarkable and vital inconsistencies and its incredibility amounting to fabrication and therefore
casted doubt to its candor, truth and validity." (p. 33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which
are not sufficient to blur or cast doubt on the witnesses' straightforward attestations. Far from being
badges of fabrication, the inconsistencies in their testimonies may in fact be justifiably considered as
manifestations of truthfulness on material points. These little deviations also confirm that the
witnesses had not been rehearsed. The most candid witnesses may make mistakes sometimes but
such honest lapses do not necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-
37400, April 15, 1988, 160 SCRA 98). Rather than discredit the testimonies of the prosecution
witnesses, discrepancies on minor details must be viewed as adding credence and veracity to such
spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16,
1988, 158 SCRA 695). As a matter of fact, complete uniformity in details would be a strong
indication of untruthfulness and lack of spontaneity (People v. Bazar, G.R. No. L-41829, June 27,
1988, 162 SCRA 609). However, one of the alleged inconsistencies deserves a little discussion
which is, the testimony of the victim that the accused asked her to hold and guide his penis in order
to have carnal knowledge of her. According to the accused, this is strange because "this is the only
case where an aggressor's advances is being helped-out by the victim in order that there will be a
consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the
testimony of the victim ended there. The victim testified further that the accused was holding a
Batangas knife during the aggression. This is a material part of the victim's testimony which the
accused conveniently deleted.
We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court
on the credibility of witnesses should be accorded the highest respect because it has the advantage
of observing the demeanor of witnesses and can discern if a witness is telling the truth (People v.
Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's finding regarding
the testimony of the victim (p 56, Rollo):
As correctly pointed out in the memorandum for the People, there is not much to be desired
as to the sincerity of the offended party in her testimony before the court. Her answer to
every question profounded (sic), under all circumstances, are plain and straightforward. To
the Court she was a picture of supplication hungry and thirsty for the immediate vindication
of the affront to her honor. It is inculcated into the mind of the Court that the accused had
wronged her; had traversed illegally her honor.
When a woman testifies that she has been raped, she says in effect all that is necessary to show
that rape was committed provided her testimony is clear and free from contradiction and her sincerity
and candor, free from suspicion (People v Alfonso, G.R. No. 72573, August 31, 1987, 153 SCRA
487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol
G.R. No. 53498, December 16, 1985, 140 SCRA 400). The victim in this case did not only state that
she was raped but she testified convincingly on how the rape was committed. The victim's testimony
from the time she knocked on the door of the municipal building up to the time she was brought to
the hospital was corroborated by Pat. Donceras. Interpreting the findings as indicated in the medical
certificate, Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude)
declared that the abrasions in the left and right knees, linear abrasions below the left breast, multiple
pinpoint marks, circumscribed hematoma at the anterior neck, erythematous area surrounding the
vaginal orifice and tender vulva, are conclusive proof of struggle against force and violence exerted
on the victim (pp. 52-53, Rollo). The trial court even inspected the boarding house and was fully
satisfied that the narration of the scene of the incident and the conditions therein is true (p.
54, Rollo):
. . . The staircase leading to the first floor is in such a condition safe enough to carry the
weight of both accused and offended party without the slightest difficulty, even in the manner
as narrated. The partitions of every room were of strong materials, securedly nailed, and
would not give way even by hastily scaling the same.
A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al.,
G.R. No. L-48731, December 21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):
. . . And the jump executed by the offended party from that balcony (opening) to the ground
which was correctly estimated to be less than eight (8) meters, will perhaps occasion no
injury to a frightened individual being pursued. Common experience will tell us that in
occasion of conflagration especially occuring (sic) in high buildings, many have been saved
by jumping from some considerable heights without being injured. How much more for a
frightened barrio girl, like the offended party to whom honor appears to be more valuable
than her life or limbs? Besides, the exposure of her private parts when she sought
assistance from authorities, as corroborated, is enough indication that something not
ordinary happened to her unless she is mentally deranged. Sadly, nothing was adduced to
show that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We
ruled that:
What particularly imprints the badge of truth on her story is her having been rendered entirely
naked by appellant and that even in her nudity, she had to run away from the latter and
managed to gain sanctuary in a house owned by spouses hardly known to her. All these acts
she would not have done nor would these facts have occurred unless she was sexually
assaulted in the manner she narrated.
The accused questions also the failure of the prosecution to present other witnesses to corroborate
the allegations in the complaint and the non-presentation of the medico-legal officer who actually
examined the victim. Suffice it to say that it is up to the prosecution to determine who should be
presented as witnesses on the basis of its own assessment of their necessity (Tugbang v. Court of
Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989).
As for the non-presentation of the medico-legal officer who actually examined the victim, the trial
court stated that it was by agreement of the parties that another physician testified inasmuch as the
medico-legal officer was no longer available. The accused did not bother to contradict this
statement.
Summing up, the arguments raised by the accused as regards the first assignment of error fall flat
on its face. Some were not even substantiated and do not, therefore, merit consideration. We are
convinced that the accused is guilty of rape. However, We believe the subject matter that really calls
for discussion, is whether or not the accused's conviction for frustrated rape is proper. The trial court
was of the belief that there is no conclusive evidence of penetration of the genital organ of the victim
and thus convicted the accused of frustrated rape only.
The accused contends that there is no crime of frustrated rape. The Solicitor General shares the
same view.
Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:
Art. 335. When and how rape is committed. — Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious and
3. When the woman is under twelve years of age, even though neither of the circumstances
mentioned in the two next preceding paragraphs shall be present.
xxx xxx xxx
Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman
(Black's Law Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies. — Consummated felonies as well
as those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence but which, nevertheless, do not
produce it by reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly by
overt acts, and does not perform all the acts of execution which should produce the felony by
reason of some cause or accident other than his own spontaneous desistance.
Correlating these two provisions, there is no debate that the attempted and consummated stages
apply to the crime of rape. Our concern now is whether or not the frustrated stage applies to the
1âwphi 1

crime of rape.
The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution
which would produce the felony and (2) that the felony is not produced due to causes independent of
the perpetrator's will. In the leading case of United States v. Eduave, 36 Phil. 209, 212, Justice
Moreland set a distinction between attempted and frustrated felonies which is readily understood
even by law students:
. . . A crime cannot be held to be attempted unless the offender, after beginning the
commission of the crime by overt acts, is prevented, against his will, by some outside cause
from performing all of the acts which should produce the crime. In other words, to be an
attempted crime the purpose of the offender must be thwarted by a foreign force or agency
which intervenes and compels him to stop prior to the moment when he has performed all of
the acts which should produce the crime as a consequence, which acts it is his intention to
perform. If he has performed all of the acts which should result in the consummation of the
crime and voluntarily desists from proceeding further, it can not be an attempt. The essential
element which distinguishes attempted from frustrated felony is that, in the latter, there is no
intervention of a foreign or extraneous cause or agency between the beginning of the
commission of the crime and the moment when all of the acts have been performed which
should result in the consummated crime; while in the former there is such intervention and
the offender does not arrive at the point of performing all of the acts which should produce
the crime. He is stopped short of that point by some cause apart from his voluntary
desistance.
Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he
actually attains his purpose and, from that moment also all the essential elements of the offense
have been accomplished. Nothing more is left to be done by the offender, because he has
performed the last act necessary to produce the crime.Thus, the felony is consummated. In a long
line of cases (People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras,
G.R. No. L-31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21,
1974, 58 SCRA 505), We have set the uniform rule that for the consummation of rape, perfect
penetration is not essential. Any penetration of the female organ by the male organ is sufficient.
Entry of the labia or lips of the female organ, without rupture of the hymen or laceration of the vagina
is sufficient to warrant conviction. Necessarily, rape is attempted if there is no penetration of the
female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United States
v. Garcia: 9 Phil. 434) because not all acts of execution was performed. The offender merely
commenced the commission of a felony directly by overt acts. Taking into account the nature,
elements and manner of execution of the crime of rape and jurisprudence on the matter, it is hardly
conceivable how the frustrated stage in rape can ever be committed.
Of course, We are aware of our earlier pronouncement in the case of People v. Eriña 50 Phil. 998
[1927] where We found the offender guilty of frustrated rape there being no conclusive evidence of
penetration of the genital organ of the offended party. However, it appears that this is a "stray"
decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are
aware of Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated
September 12, 1960) and Republic Act No. 4111 (dated March 29, 1965) which provides, in its
penultimate paragraph, for the penalty of death when the rape is attempted or frustrated and a
homicide is committed by reason or on the occasion thereof. We are of the opinion that this
particular provision on frustrated rape is a dead provision. The Eriña case, supra, might have
prompted the law-making body to include the crime of frustrated rape in the amendments introduced
by said laws.
In concluding that there is no conclusive evidence of penetration of the genital organ of the victim,
the trial court relied on the testimony of Dr. Zamora when he "categorically declared that the findings
in the vulva does not give a concrete disclosure of penetration. As a matter of fact, he tossed back to
the offended party the answer as to whether or not there actually was penetration." (p. 53, Rollo)
Furthermore, the trial court stated (p. 57, Rollo):
. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted
by Dr. Reinerio Zamora and the equivocal declaration of the latter of uncertainty whether
there was penetration or not. It is true, and the Court is not oblivious, that conviction for rape
could proceed from the uncorroborated testimony of the offended party and that a medical
certificate is not necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the
citations the people relied upon cannot be applicable to the instant case. The testimony of
the offended party is at variance with the medical certificate. As such, a very disturbing doubt
has surfaced in the mind of the court. It should be stressed that in cases of rape where there
is a positive testimony and a medical certificate, both should in all respect, compliment each
other, for otherwise to rely on the testimony alone in utter disregard of the manifest variance
in the medical certificate, would be productive of mischievous results.
The alleged variance between the testimony of the victim and the medical certificate does not exist.
On the contrary, it is stated in the medical certificate that the vulva was erythematous (which means
marked by abnormal redness of the skin due to capillary congestion, as in inflammation) and tender.
It bears emphasis that Dr. Zamora did not rule out penetration of the genital organ of the victim. He
merely testified that there was uncertainty whether or not there was penetration. Anent this
testimony, the victim positively testified that there was penetration, even if only partially (pp. 302,
304, t.s.n., May 23, 1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
xxx xxx xxx
Q What do you mean when you said comply, or what act do you referred (sic) to, when you
said comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.
The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of
the victim's testimony if credible (People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA
65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA 569; People v. Taduyo,
G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is
merely corroborative and is not an indispensable element in the prosecution of this case (People v.
Alfonso, supra).
Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused
because after a thorough review of the records, We find the evidence sufficient to prove his guilt
beyond reasonable doubt of the crime of consummated rape.
Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is
committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. The
trial court appreciated the aggravating circumstances of dwelling and nighttime. Thus, the proper
imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution
and Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited
Constitutional provision did not declare the abolition of the death penalty but merely prohibits the
imposition of the death penalty, the Court has since February 2, 1987 not imposed the death penalty
whenever it was called for under the Revised Penal Code but instead reduced the same to reclusion
perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion perpetua,
being a single indivisible penalty under Article 335, paragraph 3, is imposed regardless of any
mitigating or aggravating circumstances (in relation to Article 63, paragraph 1, Revised Penal
Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano,
G.R. No. L38449, November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31,
1985, 136 SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito
Orita is hereby found guilty beyond reasonable doubt of the crime of rape and sentenced
to reclusion perpetua as well as to indemnify the victim in the amount of P30,000.00.
SO ORDERED.
Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.

EN BANC

ARISTOTEL VALENZUELA y G. R. No. 160188


NATIVIDAD,
Petitioner, Present:

PUNO, C.J.,
QUISUMBING,
SANTIAGO,
- versus - GUTIERREZ,
CARPIO,
MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, and
PEOPLE OF THE PHILIPPINES NACHURA, JJ.
and HON. COURT OF APPEALS,
Respondents.
Promulgated:
June 21, 2007

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

DECISION

TINGA, J.:

This case aims for prime space in the firmament of our criminal law jurisprudence.
Petitioner effectively concedes having performed the felonious acts imputed
against him, but instead insists that as a result, he should be adjudged guilty of
frustrated theft only, not the felony in its consummated stage of which he was
convicted. The proposition rests on a common theory expounded in two well-
known decisions[1] rendered decades ago by the Court of Appeals, upholding the
existence of frustrated theft of which the accused in both cases were found guilty.
However, the rationale behind the rulings has never been affirmed by this Court.

As far as can be told,[2] the last time this Court extensively considered
whether an accused was guilty of frustrated or consummated theft was in 1918,
in People v. Adiao.[3] A more cursory

treatment of the question was followed in 1929, in People v. Sobrevilla,[4] and in


1984, in Empelis v. IAC.[5] This petition now gives occasion for us to finally and
fully measure if or how frustrated theft is susceptible to commission under the
Revised Penal Code.

I.

The basic facts are no longer disputed before us. The case stems from an
Information[6] charging petitioner Aristotel Valenzuela (petitioner) and Jovy
Calderon (Calderon) with the crime of theft. On 19 May 1994, at around 4:30 p.m.,
petitioner and Calderon were sighted outside the Super Sale Club, a supermarket
within the ShoeMart (SM) complex along North EDSA, by Lorenzo Lago (Lago),
a security guard who was then manning his post at the open parking area of the
supermarket. Lago saw petitioner, who was wearing an identification card with the
mark Receiving Dispatching Unit (RDU), hauling a push cart with cases of
detergent of the well-known Tide brand. Petitioner unloaded these cases in an open
parking space, where Calderon was waiting. Petitioner then returned inside the
supermarket, and after five (5) minutes, emerged with more cartons of Tide
Ultramaticand again unloaded these boxes to the same area in the open parking
space.[7]

Thereafter, petitioner left the parking area and haled a taxi. He boarded the
cab and directed it towards the parking space where Calderon was waiting.
Calderon loaded the cartons of Tide Ultramatic inside the taxi, then boarded the
vehicle. All these acts were eyed by Lago, who proceeded to stop the taxi as it was
leaving the open parking area. When Lago asked petitioner for a receipt of the
merchandise, petitioner and Calderon reacted by fleeing on foot, but Lago fired a
warning shot to alert his fellow security guards of the incident. Petitioner and
Calderon were apprehended at the scene, and the stolen merchandise
recovered.[8] The filched items seized from the duo were four (4) cases of Tide
Ultramatic, one (1) case of Ultra 25 grams, and three (3) additional cases of
detergent, the goods with an aggregate value of P12,090.00.[9]

Petitioner and Calderon were first brought to the SM security office before they
were transferred on the same day to the Baler Station II of the Philippine National
Police, Quezon City, for investigation. It appears from the police investigation
records that apart from petitioner and Calderon, four (4) other persons were
apprehended by the security guards at the scene and delivered to police custody at
the Baler PNP Station in connection with the incident. However, after the matter
was referred to the Office of the Quezon City Prosecutor, only petitioner and
Calderon were charged with theft by the Assistant City Prosecutor, in Informations
prepared on 20 May 1994, the day after the incident.[10]

After pleading not guilty on arraignment, at the trial, petitioner and Calderon both
claimed having been innocent bystanders within the vicinity of the Super Sale Club
on the afternoon of 19 May 1994 when they were haled by Lago and his fellow
security guards after a commotion and brought to the Baler PNP Station. Calderon
alleged that on the afternoon of the incident, he was at the Super Sale Club to
withdraw from his ATM account, accompanied by his neighbor, Leoncio
Rosulada.[11] As the queue for the ATM was long, Calderon and Rosulada decided
to buy snacks inside the supermarket. It was
while they were eating that they heard the gunshot fired by
Lago, leading them to head out of the building to check what was

transpiring. As they were outside, they were suddenly grabbed by a security guard,
thus commencing their detention.[12] Meanwhile, petitioner testified during trial
that he and his cousin, a Gregorio Valenzuela,[13] had been at the parking lot,
walking beside the nearby BLISS complex and headed to ride a tricycle going to
Pag-asa, when they saw the security guard Lago fire a shot. The gunshot caused
him and the other people at the scene to start running, at which point he was
apprehended by Lago and brought to the security office. Petitioner claimed he was
detained at the security office until around 9:00 p.m., at which time he and the
others were brought to the Baler Police Station. At the station, petitioner denied
having stolen the cartons of detergent, but he was detained overnight, and
eventually brought to the prosecutors office where he was charged with
theft.[14]During petitioners cross-examination, he admitted that he had been
employed as a bundler of GMS Marketing, assigned at the supermarket though not
at SM.[15]

In a Decision[16] promulgated on 1 February 2000, the Regional Trial Court (RTC)


of Quezon City, Branch 90, convicted both petitioner and Calderon of the crime of
consummated theft. They were sentenced to an indeterminate prison term of two
(2) years of prision correccional as minimum to seven (7) years of prision
mayor as maximum.[17] The RTC found credible the testimonies of the prosecution
witnesses and established the convictions on the positive identification of the
accused as perpetrators of the crime.

Both accused filed their respective Notices of Appeal,[18] but only petitioner
filed a brief[19] with the Court of Appeals, causing the appellate court to deem
Calderons appeal as abandoned and consequently dismissed. Before the Court of
Appeals, petitioner argued that he should only be convicted of frustrated theft since
at the time he was apprehended, he was never placed in a position to freely dispose
of the articles stolen.[20] However, in its Decision dated 19 June 2003,[21] the Court
of Appeals rejected this contention and affirmed petitioners conviction.[22] Hence
the present Petition for Review,[23] which expressly seeks that petitioners
conviction be modified to only of Frustrated Theft.[24]

Even in his appeal before the Court of Appeals, petitioner effectively conceded
both his felonious intent and his actual participation in the theft of several cases of
detergent with a total value of P12,090.00 of which he was charged.[25] As such,
there is no cause for the Court to consider a factual scenario other than that
presented by the prosecution, as affirmed by the RTC and the Court of Appeals.
The only question to consider is whether under the given facts, the theft should be
deemed as consummated or merely frustrated.

II.

In arguing that he should only be convicted of frustrated theft, petitioner


cites[26] two decisions rendered many years ago by the Court of Appeals: People v.
Dio[27] and People v. Flores.[28] Both decisions elicit the interest of this Court, as
they modified trial court convictions from consummated to frustrated theft and
involve a factual milieu that bears similarity to the present case. Petitioner invoked
the same rulings in his appeal to the Court of Appeals, yet the appellate court did
not expressly consider the import of the rulings when it affirmed the conviction.

It is not necessary to fault the Court of Appeals for giving short shrift to
the Dio and Flores rulings since they have not yet been expressly adopted as
precedents by this Court. For whatever reasons,

the occasion to define or debunk the crime of frustrated theft has not come to pass
before us. Yet despite the silence on our part, Dio and Flores have attained a level
of renown reached by very few other appellate court rulings. They are
comprehensively discussed in the most popular of our criminal law
annotations,[29] and studied in criminal law classes as textbook examples of
frustrated crimes or even as definitive of frustrated theft.

More critically, the factual milieu in those cases is hardly akin to the fanciful
scenarios that populate criminal law exams more than they actually occur in real
life. Indeed, if we finally say that Dio and Flores are doctrinal, such conclusion
could profoundly influence a multitude of routine theft prosecutions, including
commonplace shoplifting. Any scenario that involves the thief having to exit with
the stolen property through a supervised egress, such as a supermarket checkout
counter or a parking area pay booth, may easily call for the application
of Dio and Flores. The fact that lower courts have not hesitated to lay down
convictions for frustrated theft further validates that Dio and Flores and the
theories offered therein on frustrated theft have borne some weight in our
jurisprudential system. The time is thus ripe for us to examine whether those
theories are correct and should continue to influence prosecutors and judges in the
future.

III.

To delve into any extended analysis of Dio and Flores, as well as the
specific issues relative to frustrated theft, it is necessary to first refer to the basic
rules on the three stages of crimes under our Revised Penal Code.[30]

Article 6 defines those three stages, namely the consummated, frustrated and
attempted felonies. A felony is consummated when all the elements necessary for
its execution and accomplishment are present. It is frustrated when the offender
performs all the acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator. Finally, it is attempted when the
offender commences the commission of a felony directly by overt acts, and does
not perform all the acts of execution which should produce the felony by reason of
some cause or accident other than his own spontaneous desistance.
Each felony under the Revised Penal Code has a subjective phase, or that portion
of the acts constituting the crime included between the act which begins the
commission of the crime and the last act performed by the offender which, with
prior acts, should result in the consummated crime.[31] After that point has been
breached, the subjective phase ends and the objective phase begins.[32] It has been
held that if the offender never passes the subjective phase of the offense, the crime
is merely attempted.[33] On the other hand, the subjective phase is completely
passed in case of frustrated crimes, for in such instances, [s]ubjectively the crime is
complete.[34]

Truly, an easy distinction lies between consummated and frustrated felonies


on one hand, and attempted felonies on the other. So long as the offender fails to
complete all the acts of execution despite commencing the commission of a felony,
the crime is undoubtedly in the attempted stage. Since the specific acts of
execution that define each crime under the Revised Penal Code are generally
enumerated in the code itself, the task of ascertaining whether a crime is attempted
only would need to compare the acts actually performed by the accused as against
the acts that constitute the felony under the Revised Penal Code.

In contrast, the determination of whether a crime is frustrated or consummated


necessitates an initial concession that all of the acts of execution have been
performed by the offender. The critical distinction instead is whether the felony
itself was actually produced by the acts of execution. The determination of whether
the felony was produced after all the acts of execution had been performed hinges
on the particular statutory definition of the felony. It is the statutory definition that
generally furnishes the elements of each crime under the Revised Penal Code,
while the elements in turn unravel the particular requisite acts of execution and
accompanying criminal intent.

The long-standing Latin maxim actus non facit reum, nisi mens sit rea supplies an
important characteristic of a crime, that ordinarily, evil intent must unite with an
unlawful act for there to be a crime, and accordingly, there can be no crime when
the criminal mind is wanting.[35] Accepted in this jurisdiction as material in
crimes mala in se,[36] mens reahas been defined before as a guilty mind, a guilty or
wrongful purpose or criminal intent,[37] and essential for criminal liability.[38] It
follows that the statutory definition of our mala in se crimes must be able to supply
what the mens rea of the crime is, and indeed the U.S. Supreme Court has
comfortably held that a criminal law that contains no mens rea requirement
infringes on constitutionally protected rights.[39] The criminal statute must also
provide for the overt acts that constitute the crime. For a crime to exist in our legal
law, it is not enough that mens rea be shown; there must also be an actus reus.[40]

It is from the actus reus and the mens rea, as they find expression in the
criminal statute, that the felony is produced. As a postulate in the craftsmanship of
constitutionally sound laws, it is extremely preferable that the language of the law
expressly provide when the felony is produced. Without such provision, disputes
would inevitably ensue on the elemental question whether or not a crime was
committed, thereby presaging the undesirable and legally dubious set-up under
which the judiciary is assigned the legislative role of defining crimes. Fortunately,
our Revised Penal Code does not suffer from such infirmity. From the statutory
definition of any felony, a decisive passage or term is embeddedwhich attests when
the felony is produced by the acts of execution. For example, the statutory
definition of murder or homicide expressly uses the phrase shall kill another, thus
making it clear that the felony is produced by the death of the victim, and
conversely, it is not produced if the victim survives.

We next turn to the statutory definition of theft. Under Article 308 of the Revised
Penal Code, its elements are spelled out as follows:

Art. 308. Who are liable for theft. Theft is committed by any person who,
with intent to gain but without violence against or intimidation of persons nor
force upon things, shall take personal property of another without the latters
consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall fail to deliver the
same to the local authorities or to its owner;
2. Any person who, after having maliciously damaged the property of
another, shall remove or make use of the fruits or object of the
damage caused by him; and
3. Any person who shall enter an inclosed estate or a field where
trespass is forbidden or which belongs to another and without the
consent of its owner, shall hunt or fish upon the same or shall
gather cereals, or other forest or farm products.

Article 308 provides for a general definition of theft, and three alternative and
highly idiosyncratic means by which theft may be committed.[41] In the present
discussion, we need to concern ourselves only with the general definition since it
was under it that the prosecution of the accused was undertaken and sustained. On
the face of the definition, there is only one operative act of execution by the actor
involved in theft ─ the taking of personal property of another. It is also clear from
the provision that in order that such taking may be qualified as theft, there must
further be present the descriptive circumstances that the taking was with intent to
gain; without force upon things or violence against or intimidation of persons; and
it was without the consent of the owner of the property.

Indeed, we have long recognized the following elements of theft as provided


for in Article 308 of the Revised Penal Code, namely: (1) that there be taking of
personal property; (2) that said property belongs to another; (3) that the taking be
done with intent to gain; (4) that the taking be done without the consent of the
owner; and (5) that the taking be accomplished without the use of violence against
or intimidation of persons or force upon things.[42]

In his commentaries, Judge Guevarra traces the history of the definition of


theft, which under early Roman law as defined by Gaius, was so broad enough as
to encompass any kind of physical handling of property belonging to another
against the will of the owner,[43] a definition similar to that by Paulus that a thief
handles (touches, moves) the property of another.[44] However, with the Institutes
of Justinian, the idea had taken hold that more than mere physical handling, there
must further be an intent of acquiring gain from the object, thus: [f]urtum est
contrectatio rei fraudulosa, lucri faciendi causa vel ipsius rei, vel etiam usus ejus
possessinisve.[45] This requirement of animo lucrandi, or intent to gain, was
maintained in both the Spanish and Filipino penal laws, even as it has since been
abandoned in Great Britain.[46]
In Spanish law, animo lucrandi was compounded with apoderamiento, or
unlawful taking, to characterize theft. Justice Regalado notes that the concept
of apoderamientoonce had a controversial interpretation and application. Spanish
law had already discounted the belief that mere physical taking was constitutive
of apoderamiento, finding that it had to be coupled with the intent to appropriate
the object in order to constitute apoderamiento; and to appropriate means to
deprive the lawful owner of the thing.[47] However, a conflicting line of cases
decided by the Court of Appeals ruled, alternatively, that there must be
permanency in the taking[48] or an intent to permanently deprive the owner of the
stolen property;[49] or that there was no need for permanency in the taking or in its
intent, as the mere temporary possession by the offender or disturbance of the
proprietary rights of the owner already constituted apoderamiento.[50] Ultimately,
as Justice Regalado notes, the Court adopted the latter thought that there was no
need of an intent to permanently deprive the owner of his property to constitute an
unlawful taking.[51]

So long as the descriptive circumstances that qualify the taking are present,
including animo lucrandi and apoderamiento, the completion of the operative
act that is the taking of personal property of another establishes, at least, that
the transgression went beyond the attempted stage. As applied to the present
case, the moment petitioner obtained physical possession of the cases of
detergent and loaded them in the pushcart, such seizure motivated by intent
to gain, completed without need to inflict violence or intimidation against
persons nor force upon things, and accomplished without the consent of the
SM Super Sales Club, petitioner forfeited the extenuating benefit a conviction
for only attempted theft would have afforded him.

On the critical question of whether it was consummated or frustrated theft, we are


obliged to apply Article 6 of the Revised Penal Code to ascertain the answer.
Following that provision, the theft would have been frustrated only, once the acts
committed by petitioner, if ordinarily sufficient to produce theft as a consequence,
do not produce [such theft] by reason of causes independent of the will of the
perpetrator. There are clearly two determinative factors to consider: that the felony
is not produced, and that such failure is due to causes independent of the will of the
perpetrator. The second factor ultimately depends on the evidence at hand in each
particular case. The first, however, relies primarily on a doctrinal definition
attaching to the individual felonies in the Revised Penal Code[52] as to when a
particular felony is not produced, despite the commission of all the acts of
execution.

So, in order to ascertain whether the theft is consummated or frustrated, it is


necessary to inquire as to how exactly is the felony of theft produced. Parsing
through the statutory definition of theft under Article 308, there is one apparent
answer provided in the language of the law that theft is already produced upon the
tak[ing of] personal property of another without the latters consent.

U.S. v. Adiao[53] apparently supports that notion. Therein, a customs inspector was
charged with theft after he abstracted a leather belt from the baggage of a foreign
national and secreted the item in his desk at the Custom House. At no time was the
accused able to get the merchandise out of the Custom House, and it appears that
he was under observation during the entire transaction.[54] Based apparently on
those two circumstances, the trial court had found him guilty, instead, of frustrated
theft. The Court reversed, saying that neither circumstance was decisive, and
holding instead that the accused was guilty of consummated theft, finding that all
the elements of the completed crime of theft are present.[55] In support of its
conclusion that the theft was consummated, the Court cited three (3) decisions of
the Supreme Court of Spain, the discussion of which we replicate below:

The defendant was charged with the theft of some fruit from the land of another.
As he was in the act of taking the fruit[,] he was seen by a policeman, yet it did
not appear that he was at that moment caught by the policeman but sometime
later. The court said: "[x x x] The trial court did not err [x x x ] in considering the
crime as that of consummated theft instead of frustrated theft inasmuch as nothing
appears in the record showing that the policemen who saw the accused take the
fruit from the adjoining land arrested him in the act and thus prevented him from
taking full possession of the thing stolen and even its utilization by him for an
interval of time." (Decision of the Supreme Court of Spain, October 14, 1898.)

Defendant picked the pocket of the offended party while the latter was
hearing mass in a church. The latter on account of the solemnity of the act,
although noticing the theft, did not do anything to prevent it. Subsequently,
however, while the defendant was still inside the church, the offended party got
back the money from the defendant. The court said that the defendant had
performed all the acts of execution and considered the theft as consummated.
(Decision of the Supreme Court of Spain, December 1, 1897.)

The defendant penetrated into a room of a certain house and by means of a


key opened up a case, and from the case took a small box, which was also opened
with a key, from which in turn he took a purse containing 461 reales and 20
centimos, and then he placed the money over the cover of the case; just at this
moment he was caught by two guards who were stationed in another room near-
by. The court considered this as consummated robbery, and said: "[x x x] The
accused [x x x] having materially taken possession of the money from the
moment he took it from the place where it had been, and having taken it with his
hands with intent to appropriate the same, he executed all the acts necessary to
constitute the crime which was thereby produced; only the act of making use of
the thing having been frustrated, which, however, does not go to make the
elements of the consummated crime." (Decision of the Supreme Court of Spain,
June 13, 1882.)[56]

It is clear from the facts of Adiao itself, and the three (3) Spanish decisions cited
therein, that the criminal actors in all these cases had been able to obtain full
possession of the personal property prior to their apprehension. The interval
between the commission of the acts of theft and the apprehension of the thieves did
vary, from sometime later in the 1898 decision; to the very moment the thief had
just extracted the money in a purse which had been stored as it was in the 1882
decision; and before the thief had been able to spirit the item stolen from the
building where the theft took place, as had happened in Adiao and the 1897
decision. Still, such intervals proved of no consequence in those cases, as it was
ruled that the thefts in each of those cases was consummated by the actual
possession of the property belonging to another.

In 1929, the Court was again confronted by a claim that an accused was guilty only
of frustrated rather than consummated theft. The case is People v.
Sobrevilla,[57] where the accused, while in the midst of a crowd in a public market,
was already able to abstract a pocketbook from the trousers of the victim when the
latter, perceiving the theft, caught hold of the [accused]s shirt-front, at the same
time shouting for a policeman; after a struggle, he recovered his pocket-book and
let go of the defendant, who was afterwards caught by a policeman. [58] In rejecting
the contention that only frustrated theft was established, the Court simply said,
without further comment or elaboration:
We believe that such a contention is groundless. The [accused] succeeded in
taking the pocket-book, and that determines the crime of theft. If the pocket-
book was afterwards recovered, such recovery does not affect the [accuseds]
criminal liability, which arose from the [accused] having succeeded in taking
the pocket-book.[59]
If anything, Sobrevilla is consistent with Adiao and the Spanish Supreme Court
cases cited in the latter, in that the fact that the offender was able to succeed in
obtaining physical possession of the stolen item, no matter how momentary, was
able to consummate the theft.

Adiao, Sobrevilla and the Spanish Supreme Court decisions cited therein
contradict the position of petitioner in this case. Yet to simply affirm without
further comment would be disingenuous, as there is another school of thought on
when theft is consummated, as reflected in the Dio and Flores decisions.

Dio was decided by the Court of Appeals in 1949, some 31 years


after Adiao and 15 years before Flores. The accused therein, a driver employed by
the United States Army, had driven his truck into the port area of the South Harbor,
to unload a truckload of materials to waiting U.S. Army personnel. After he had
finished unloading, accused drove away his truck from the Port, but as he was
approaching a checkpoint of the Military Police, he was stopped by an M.P. who
inspected the truck and found therein three boxes of army rifles. The accused later
contended that he had been stopped by four men who had loaded the boxes with
the agreement that they were to meet him and retrieve the rifles after he had passed
the checkpoint. The trial court convicted accused of consummated theft, but the
Court of Appeals modified the conviction, holding instead that only frustrated theft
had been committed.

In doing so, the appellate court pointed out that the evident intent of the
accused was to let the boxes of rifles pass through the checkpoint, perhaps in the
belief that as the truck had already unloaded its cargo inside the depot, it would be
allowed to pass through the check point without further investigation or
checking.[60] This point was deemed material and indicative that the theft had not
been fully produced, for the Court of Appeals pronounced that the fact
determinative of consummation is the ability of the thief to dispose freely of the
articles stolen, even if it were more or less momentary.[61] Support for this
proposition was drawn from a decision of the Supreme Court of Spain dated 24
January 1888 (1888 decision), which was quoted as follows:

Considerando que para que el apoderamiento de la cosa sustraida sea


determinate de la consumacion del delito de hurto es preciso que so haga en
circunstancias tales que permitan al sustractor la libre disposicion de aquella,
siquiera sea mas o menos momentaneamente, pues de otra suerte, dado el concepto
del delito de hurto, no puede decirse en realidad que se haya producido en toda su
extension, sin materializar demasiado el acto de tomar la cosa ajena.[62]

Integrating these considerations, the Court of Appeals then concluded:

This court is of the opinion that in the case at bar, in order to make the
booty subject to the control and disposal of the culprits, the articles stolen must
first be passed through the M.P. check point, but since the offense was
opportunely discovered and the articles seized after all the acts of execution had
been performed, but before the loot came under the final control and disposal of
the looters, the offense can not be said to have been fully consummated, as it was
frustrated by the timely intervention of the guard. The offense committed,
therefore, is that of frustrated theft.[63]

Dio thus laid down the theory that the ability of the actor to freely dispose of
the items stolen at the time of apprehension is determinative as to whether the theft
is consummated or frustrated. This theory was applied again by the Court of
Appeals some 15 years later, in Flores, a case which according to the division of
the court that decided it, bore no substantial variance between the circumstances
[herein] and in [Dio].[64] Such conclusion is borne out by the facts in Flores. The
accused therein, a checker employed by the Luzon Stevedoring Company, issued a
delivery receipt for one empty sea van to the truck driver who had loaded the
purportedly empty sea van onto his truck at the terminal of the stevedoring
company. The truck driver proceeded to show the delivery receipt to the guard on
duty at the gate of the terminal. However, the guards insisted on inspecting the van,
and discovered that the empty sea van had actually contained other merchandise as
well.[65] The accused was prosecuted for theft qualified by abuse of confidence, and
found himself convicted of the consummated crime. Before the Court of Appeals,
accused argued in the alternative that he was guilty only of attempted theft, but the
appellate court pointed out that there was no intervening act of spontaneous
desistance on the part of the accused that literally frustrated the theft. However, the
Court of Appeals, explicitly relying on Dio, did find that the accused was guilty
only of frustrated, and not consummated, theft.

As noted earlier, the appellate court admitted it found no substantial variance


between Dio and Flores then before it. The prosecution in Flores had sought to
distinguish that case from Dio, citing a traditional ruling which unfortunately was
not identified in the decision itself. However, the Court of Appeals pointed out that
the said traditional ruling was qualified by the words is placed in a situation where
[the actor] could dispose of its contents at once.[66] Pouncing on this qualification,
the appellate court noted that [o]bviously, while the truck and the van were still
within the compound, the petitioner could not have disposed of the goods at once.
At the same time, the Court of Appeals conceded that [t]his is entirely different
from the case where a much less bulk and more common thing as money was the
object of the crime, where freedom to dispose of or make use of it is palpably less
restricted,[67] though no further qualification was offered what the effect would
have been had that alternative circumstance been present instead.

Synthesis of the Dio and Flores rulings is in order. The determinative


characteristic as to whether the crime of theft was produced is the ability of the
actor to freely dispose of the articles stolen, even if it were only momentary. Such
conclusion was drawn from an 1888 decision of the Supreme Court of Spain which
had pronounced that in determining whether theft had been consummated, es
preciso que so haga en circunstancias tales que permitan al sustractor de aquella,
siquiera sea mas o menos momentaneamente. The qualifier siquiera sea mas o
menos momentaneamente proves another important consideration, as it implies that
if the actor was in a capacity to freely dispose of the stolen items before
apprehension, then the theft could be deemed consummated. Such circumstance
was not present in either Dio or Flores, as the stolen items in both cases were
retrieved from the actor before they could be physically extracted from the guarded
compounds from which the items were filched. However, as implied in Flores, the
character of the item stolen could lead to a different conclusion as to whether there
could have been free disposition, as in the case where the chattel involved was
of much less bulk and more common x x x, [such] as money x x x.[68]

In his commentaries, Chief Justice Aquino makes the following pointed


observation on the import of the Dio ruling:

There is a ruling of the Court of Appeals that theft is consummated when


the thief is able to freely dispose of the stolen articles even if it were more or less
momentary. Or as stated in another case[[69]], theft is consummated upon the
voluntary and malicious taking of property belonging to another which is realized
by the material occupation of the thing whereby the thief places it under his
control and in such a situation that he could dispose of it at once. This ruling
seems to have been based on Viadas opinion that in order the theft may be
consummated, es preciso que se haga en circumstancias x x x [[70]][71]

In the same commentaries, Chief Justice Aquino, concluding


from Adiao and other cases, also states that [i]n theft or robbery the crime is
consummated after the accused had material possession of the thing with intent to
appropriate the same, although his act of making use of the thing was frustrated.[72]

There are at least two other Court of Appeals rulings that are at seeming
variance with the Dio and Flores rulings. People v. Batoon[73] involved an accused
who filled a container with gasoline from a petrol pump within view of a police
detective, who followed the accused onto a passenger truck where the arrest was
made. While the trial court found the accused guilty of frustrated qualified theft,
the Court of Appeals held that the accused was guilty of consummated qualified
theft, finding that [t]he facts of the cases of U.S. [v.] Adiao x x x and U.S. v.
Sobrevilla x x x indicate that actual taking with intent to gain is enough to
consummate the crime of theft.[74]

In People v. Espiritu,[75] the accused had removed nine pieces of hospital


linen from a supply depot and loaded them onto a truck. However, as the truck
passed through the checkpoint, the stolen items were discovered by the Military
Police running the checkpoint. Even though those facts clearly admit to similarity
with those in Dio, the Court of Appeals held that the accused were guilty of
consummated theft, as the accused were able to take or get hold of the hospital
linen and that the only thing that was frustrated, which does not constitute any
element of theft, is the use or benefit that the thieves expected from the
commission of the offense.[76]

In pointing out the distinction between Dio and Espiritu, Reyes wryly
observes that [w]hen the meaning of an element of a felony is controversial, there
is bound to arise different rulings as to the stage of execution of that
felony.[77] Indeed, we can discern from this survey of jurisprudence that the state of
the law insofar as frustrated theft is concerned is muddled. It fact, given the
disputed foundational basis of the concept of frustrated theft itself, the question can
even be asked whether there is really such a crime in the first place.

IV.

The Court in 1984 did finally rule directly that an accused was guilty of
frustrated, and not consummated, theft. As we undertake this inquiry, we have to
reckon with the import of this Courts 1984 decision in Empelis v. IAC.[78]

As narrated in Empelis, the owner of a coconut plantation had espied four


(4) persons in the premises of his plantation, in the act of gathering and tying some
coconuts. The accused were surprised by the owner within the plantation as they
were carrying with them the coconuts they had gathered. The accused fled the
scene, dropping the coconuts they had seized, and were subsequently arrested after
the owner reported the incident to the police. After trial, the accused were
convicted of qualified theft, and the issue they raised on appeal was that they were
guilty only of simple theft. The Court affirmed that the theft was qualified,
following Article 310 of the Revised Penal Code,[79] but further held that the
accused were guilty only of frustrated qualified theft.
It does not appear from the Empelis decision that the issue of whether the
theft was consummated or frustrated was raised by any of the parties. What does
appear, though, is that the disposition of that issue was contained in only two
sentences, which we reproduce in full:
However, the crime committed is only frustrated qualified theft because
petitioners were not able to perform all the acts of execution which should have
produced the felony as a consequence. They were not able to carry the coconuts
away from the plantation due to the timely arrival of the owner.[80]

No legal reference or citation was offered for this averment, whether Dio, Flores or
the Spanish authorities who may have bolstered the conclusion. There are indeed
evident problems with this formulation in Empelis.

Empelis held that the crime was only frustrated because the actors were not able to
perform all the acts of execution which should have produced the felon as a
consequence.[81] However, per Article 6 of the Revised Penal Code, the crime is
frustrated when the offender performs all the acts of execution, though not
producing the felony as a result. If the offender was not able to perform all the acts
of execution, the crime is attempted, provided that the non-
performance was by reason of some cause or accident other than spontaneous
desistance. Empelis concludes that the crime was

frustrated because not all of the acts of execution were performed due to the timely
arrival of the owner. However, following Article 6 of the Revised Penal Code,
these facts should elicit the conclusion that the crime was only attempted,
especially given that the acts were not performed because of the timely arrival of
the owner, and not because of spontaneous desistance by the offenders.

For these reasons, we cannot attribute weight to Empelis as we consider the present
petition. Even if the two sentences we had cited actually aligned with the
definitions provided in Article 6 of the Revised Penal Code, such passage bears no
reflection that it is the product of the considered evaluation of the relevant legal or
jurisprudential thought. Instead, the passage is offered as if it were sourced from an
indubitable legal premise so settled it required no further explication.

Notably, Empelis has not since been reaffirmed by the Court, or even cited as
authority on theft. Indeed, we cannot see how Empelis can contribute to our present
debate, except for the bare fact that it proves that the Court had once deliberately
found an accused guilty of frustrated theft. Even if Empelis were considered as a
precedent for frustrated theft, its doctrinal value is extremely compromised by the
erroneous legal premises that inform it, and also by the fact that it has not been
entrenched by subsequent reliance.

Thus, Empelis does not compel us that it is an insurmountable given that frustrated
theft is viable in this jurisdiction. Considering the flawed reasoning behind its
conclusion of frustrated theft, it cannot present any efficacious argument to
persuade us in this case. Insofar as Empelis may imply that convictions for
frustrated theft are beyond cavil in this jurisdiction, that decision is subject to
reassessment.

V.

At the time our Revised Penal Code was enacted in 1930, the 1870 Codigo Penal
de Espaa was then in place. The definition of the crime of theft, as provided then,
read as follows:
Son reos de hurto:

1. Los que con nimo de lucrarse, y sin volencia o intimidacin en las personas ni
fuerza en las cosas, toman las cosas muebles ajenas sin la voluntad de su
dueo.

2. Los que encontrndose una cosa perdida y sabiendo quin es su dueo se la


apropriaren co intencin de lucro.

3. Los daadores que sustrajeren o utilizaren los frutos u objeto del dao causado,
salvo los casos previstos en los artίculos 606, nm. 1.0; 607, nms, 1.0, 2.0 y
3.0; 608, nm. 1.0; 611; 613; Segundo prrafo del 617 y 618.

It was under the ambit of the 1870 Codigo Penal that the aforecited Spanish
Supreme Court decisions were handed down. However, the said code would be
revised again in 1932, and several times thereafter. In fact, under the Codigo Penal
Espaol de 1995, the crime of theft is now simply defined as [e]l que, con nimo de
lucro,
tomare las cosas muebles ajenas sin la voluntad de su dueo ser castigado [82]

Notice that in the 1870 and 1995 definition of theft in the penal code
of Spain, la libre disposicion of the property is not an element or a statutory
characteristic of the crime. It does appear that the principle originated and perhaps
was fostered in the realm of Spanish jurisprudence.

The oft-cited Salvador Viada adopted a question-answer form in his 1926


commentaries on the 1870 Codigo Penal de Espaa. Therein, he raised at least three
questions for the reader whether the crime of frustrated or consummated theft had
occurred. The passage cited in Dio was actually utilized by Viada to answer the
question whether frustrated or consummated theft was committed [e]l que en el
momento mismo de apoderarse de la cosa ajena, vindose sorprendido, la arroja al
suelo.[83] Even as the answer was as stated in Dio, and was indeed derived from the
1888 decision of the Supreme Court of Spain, that decisions factual predicate
occasioning the statement was apparently very different from Dio, for it appears
that the 1888 decision involved an accused who was surprised by the employees of
a haberdashery as he was abstracting a layer of clothing off a mannequin, and who
then proceeded to throw away the garment as he fled.[84]

Nonetheless, Viada does not contest the notion of frustrated theft, and
willingly recites decisions of the Supreme Court of Spain that have held to that
effect.[85] A few decades later, the esteemed Eugenio Cuello Caln pointed out the
inconsistent application by the Spanish Supreme Court with respect to frustrated
theft.

Hay frustracin cuando los reos fueron sorprendidos por las guardias
cuando llevaban los sacos de harino del carro que los conducia a otro que tenan
preparado, 22 febrero 1913; cuando el resultado no tuvo efecto por la intervencin
de la policia situada en el local donde se realiz la sustraccin que impidi pudieran
los reos disponer de lo sustrado, 30 de octubre 1950. Hay "por lo menos"
frustracin, si existe apoderamiento, pero el culpale no llega a disponer de la cosa,
12 abril 1930; hay frustracin "muy prxima" cuando el culpable es detenido por el
perjudicado acto seguido de cometer la sustraccin, 28 febrero 1931. Algunos
fallos han considerado la existencia de frustracin cuando, perseguido el culpable
o sorprendido en el momento de llevar los efectos hurtados, los abandona, 29
mayo 1889, 22 febrero 1913, 11 marzo 1921; esta doctrina no es admissible, stos,
conforme a lo antes expuesto, son hurtos consumados.[86]

Ultimately, Cuello Caln attacked the very idea that frustrated theft is actually
possible:

La doctrina hoy generalmente sustentada considera que el hurto se


consuma cuando la cosa queda de hecho a la disposicin del agente. Con este
criterio coincide la doctrina sentada ltimamente porla jurisprudencia espaola que
generalmente considera consumado el hurto cuando el culpable coge o
aprehende la cosa y sta quede por tiempo ms o menos duradero bajo su poder. El
hecho de que ste pueda aprovecharse o no de lo hurtado es indiferente. El delito
no pierde su carcter de consumado aunque la cosa hurtada sea devuelta por el
culpable o fuere recuperada. No se concibe la frustracin, pues es muy dificil que
el que hace cuanto es necesario para la consumacin del hurto no lo consume
efectivamente, los raros casos que nuestra jurisprudencia, muy vacilante,
declara hurtos frustrados son verdaderos delitos consumados.[87] (Emphasis
supplied)

Cuello Calns submissions cannot be lightly ignored. Unlike Viada, who was
content with replicating the Spanish Supreme Court decisions on the matter, Cuello
Caln actually set forth his own thought that questioned whether theft could truly be
frustrated, since pues es muy dificil que el que hace cuanto es necesario para la
consumacin delhurto no lo consume efectivamente. Otherwise put, it would be
difficult to foresee how the execution of all the acts necessary for the completion
of the crime would not produce the effect of theft.

This divergence of opinion convinces us, at least, that there is no weighted


force in scholarly thought that obliges us to accept frustrated theft, as proposed
in Dio and Flores. A final ruling by the Court that there is no crime of frustrated
theft in this jurisdiction will not lead to scholastic pariah, for such a submission is
hardly heretical in light of Cuello Calns position.

Accordingly, it would not be intellectually disingenuous for the Court to


look at the question from a fresh perspective, as we are not bound by the opinions
of the respected Spanish commentators, conflicting as they are, to accept that theft
is capable of commission in its frustrated stage. Further, if we ask the question
whether there is a mandate of statute or precedent that must compel us to adopt
the Dio and Flores doctrines, the answer has to be in the negative. If we did so, it
would arise not out of obeisance to an inexorably higher command, but from the
exercise of the function of statutory interpretation that comes as part and parcel of
judicial review, and a function that allows breathing room for a variety of theorems
in competition until one is ultimately adopted by this Court.
V.

The foremost predicate that guides us as we explore the matter is that it lies
in the province of the legislature, through statute, to define what constitutes a
particular crime in this jurisdiction. It is the legislature, as representatives of the
sovereign people, which determines which acts or combination of acts are criminal
in nature. Judicial interpretation of penal laws should be aligned with what was the
evident legislative intent, as expressed primarily in the language of the law as it
defines the crime. It is Congress, not the courts, which is to define a crime, and
ordain its punishment.[88] The courts cannot arrogate the power to introduce a new
element of a crime which was unintended by the legislature, or redefine a crime in
a manner that does not hew to the statutory language. Due respect for the
prerogative of Congress in defining crimes/felonies constrains the Court to refrain
from a broad interpretation of penal laws where a narrow interpretation is
appropriate. The Court must take heed of language, legislative history and
purpose, in order to strictly determine the wrath and breath of the conduct the law
forbids.[89]

With that in mind, a problem clearly emerges with the Dio/Flores dictum.
The ability of the offender to freely dispose of the property stolen is not a
constitutive element of the crime of theft. It finds no support or extension in Article
308, whether as a descriptive or operative element of theft or as the mens
rea or actus reus of the felony. To restate what this Court has repeatedly held: the
elements of the crime of theft as provided for in Article 308 of the Revised Penal
Code are: (1) that there be taking of personal property; (2) that said property
belongs to another; (3) that the taking be done with intent to gain; (4) that the
taking be done without the consent of the owner; and (5) that the taking be
accomplished without the use of violence against or intimidation of persons or
force upon things.[90]
Such factor runs immaterial to the statutory definition of theft, which is the
taking, with intent to gain, of personal property of another without the latters
consent. While the Dio/Flores dictum is considerate to the mindset of the offender,
the statutory definition of theft considers only the perspective of intent to gain on
the part of the offender, compounded by the deprivation of property on the part of
the victim.

For the purpose of ascertaining whether theft is susceptible of commission in


the frustrated stage, the question is again, when is the crime of theft produced?
There would be all but certain unanimity in the position that theft is produced
when there is deprivation of personal property due to its taking by one with intent
to gain. Viewed from that perspective, it is immaterial to the product of the felony
that the offender, once having committed all the acts of execution for theft, is able
or unable to freely dispose of the property stolen since the deprivation from the
owner alone has already ensued from such acts of execution. This conclusion is
reflected in Chief Justice Aquinos commentaries, as earlier cited, that [i]n theft or
robbery the crime is consummated after the accused had material possession of the
thing with intent to appropriate the same, although his act of making use of the
thing was frustrated.[91]

It might be argued, that the ability of the offender to freely dispose of the
property stolen delves into the concept of taking itself, in that there could be no
true taking until the actor obtains such degree of control over the stolen item. But
even if this were correct, the effect would be to downgrade the crime to its
attempted, and not frustrated stage, for it would mean that not all the acts of
execution have not been completed, the taking not having been accomplished.
Perhaps this point could serve as fertile ground for future discussion, but our
concern now is whether there is indeed a crime of frustrated theft, and such
consideration proves ultimately immaterial to that question. Moreover, such issue
will not apply to the facts of this particular case. We are satisfied beyond
reasonable doubt that the taking by the petitioner was completed in this case. With
intent to gain, he acquired physical possession of the stolen cases of detergent for a
considerable period of time that he was able to drop these off at a spot in the
parking lot, and long enough to load these onto a taxicab.
Indeed, we have, after all, held that unlawful taking, or apoderamiento, is
deemed complete from the moment the offender gains possession of the thing,
even if he has no opportunity to dispose of the same.[92] And long ago, we asserted
in People v. Avila:[93]

x x x [T]he most fundamental notion in the crime of theft is the taking of the thing
to be appropriated into the physical power of the thief, which idea is qualified by
other conditions, such as that the taking must be effected animo lucrandi and
without the consent of the owner; and it will be here noted that the definition does
not require that the taking should be effected against the will of the owner but
merely that it should be without his consent, a distinction of no slight
importance.[94]

Insofar as we consider the present question, unlawful taking is most material


in this respect. Unlawful taking, which is the deprivation of ones personal property,
is the element which produces the felony in its consummated stage. At the same
time, without unlawful taking as an act of execution, the offense could only be
attempted theft, if at all.

With these considerations, we can only conclude that under Article 308 of
the Revised Penal Code, theft cannot have a frustrated stage. Theft can only be
attempted or consummated.

Neither Dio nor Flores can convince us otherwise. Both fail to consider that
once the offenders therein obtained possession over the stolen items, the effect of
the felony has been produced as there has been deprivation of property. The
presumed inability of the offenders to freely dispose of the stolen property does not
negate the fact that the owners have already been deprived of their right to
possession upon the completion of the taking.

Moreover, as is evident in this case, the adoption of the rule that the inability
of the offender to freely dispose of the stolen property frustrates the theft would
introduce a convenient defense for the accused which does not reflect any
legislated intent,[95] since the Court would have carved a viable means for offenders
to seek a mitigated penalty under applied circumstances that do not admit of easy
classification. It is difficult to formulate definite standards as to when a stolen item
is susceptible to free disposal by the thief. Would this depend on the psychological
belief of the offender at the time of the commission of the crime, as implied
in Dio?

Or, more likely, the appreciation of several classes of factual circumstances


such as the size and weight of the property, the location of the property, the
number and identity of people present at the scene of the crime, the number and
identity of people whom the offender is expected to encounter upon fleeing with
the stolen property, the manner in which the stolen item had been housed or stored;
and quite frankly, a whole lot more. Even the fungibility or edibility of the stolen
item would come into account, relevant as that would be on whether such property
is capable of free disposal at any stage, even after the taking has been
consummated.

All these complications will make us lose sight of the fact that beneath all
the colorful detail, the owner was indeed deprived of property by one who intended
to produce such deprivation for reasons of gain. For such will remain the presumed
fact if frustrated theft were recognized, for therein, all of the acts of execution,
including the taking, have been completed. If the facts establish the non-
completion of the taking due to these peculiar circumstances, the effect could be to
downgrade the crime to the attempted stage, as not all of the acts of execution have
been performed. But once all these acts have been executed, the taking has been
completed, causing the unlawful deprivation of property, and ultimately the
consummation of the theft.

Maybe the Dio/Flores rulings are, in some degree, grounded in common


sense. Yet they do not align with the legislated framework of the crime of theft.
The Revised Penal Code provisions on theft have not been designed in such
fashion as to accommodate said rulings. Again, there is no language in Article 308
that expressly or impliedly allows that the free disposition of the items stolen is in
any way determinative of whether the crime of theft has been produced. Dio itself
did not rely on Philippine laws or jurisprudence to bolster its conclusion, and the
later Flores was ultimately content in relying on Dio alone for legal support. These
cases do not enjoy the weight of stare decisis, and even if they did, their erroneous
appreciation of our law on theft leave them susceptible to reversal. The same holds
true of Empilis, a regrettably stray decision which has not since found favor from
this Court.

We thus conclude that under the Revised Penal Code, there is no crime of
frustrated theft. As petitioner has latched the success of his appeal on our
acceptance of the Dio and Flores rulings, his petition must be denied, for we
decline to adopt said rulings in our jurisdiction. That it has taken all these years for
us to recognize that there can be no frustrated theft under the Revised Penal Code
does not detract from the correctness of this conclusion. It will take considerable
amendments to our Revised Penal Code in order that frustrated theft may be
recognized. Our deference to Viada yields to the higher reverence for legislative
intent.

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

DANTE O. TINGA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO


Associate Justice Associate Justice
ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO
Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA


Associate Justice Associate Justice

CONCHITA CARPIO MORALES ADOLFO S. AZCUNA


Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA


Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA


Associate Justice Associate Justice

CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified
that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

[1]
See infra, People v. Dio and People v. Flores.
[2]
Not accounting for those unpublished or unreported decisions, in the one hundred year history of this
Court, which could no longer be retrieved from the Philippine Reports or other secondary sources, due to their
wholesale destruction during the Second World War or for other reasons.
[3]
See People v. Adiao, infra. There have been a few cases wherein the Court let stand a conviction for
frustrated theft, yet in none of those cases was the issue squarely presented that theft could be committed at its
frustrated stage. See People v. Abuyen, 52 Phil. 722 (1929); People v. Flores, 63 Phil. 443 (1936); and People v.
Tapang, 88 Phil. 721 (1951). In People v. Argel G.R. No. L-45975, 25 May 1981, 192 SCRA 21, the Court did
tacitly accept the viability of a conviction for frustrated theft, though the issue expounded on by the Court pertained
to the proper appellate jurisdiction over such conviction.

It would indeed be error to perceive that convictions for frustrated theft are traditionally unconventional in
this jurisdiction, as such have routinely been handed down by lower courts, as a survey of jurisprudence would
reveal. Still, the plain fact remains that this Court , since Adiao in 1918, has yet to directly rule on the legal
foundation of frustrated theft, or even discuss such scenario by way of dicta.

In passing, we take note of a recent decision of the Court of Appeals in People v. Concepcion, C.A.
G.R. CR No. 28280, 11 July 2005 (See at http://ca.supremecourt.gov.ph /cardis/CR28280.pdf), where the appellate
court affirmed a conviction for frustrated theft, the accused therein having been caught inside Meralco property
before he could flee with some copper electrical wire. However, in the said decision, the accused was charged at the
onset with frustrated theft, and the Court of Appeals did not inquire why the crime committed was only frustrated
theft. Moreover, the charge for theft was not under the Revised Penal Code, but under Rep. Act No. 7832, a special
law.
[4]
53 Phil. 226 (1929).
[5]
217 Phil. 377 (1984).
[6]
Records, pp. 1-2.
[7]
Rollo, pp. 21-22.
[8]
Id. at 22.
[9]
See id. at 472.
[10]
See Records, pp. 7-14. A brief comment is warranted regarding these four (4) other apparent suspects.
The affidavits and sworn statements that were executed during the police investigation by security guards Lago and
Vivencio Yanson, by SM employee Adelio Nakar, and by the taxi driver whose cab had been hailed to transport the
accused, commonly point to all six as co-participants in the theft of the detergents. It is not explained in the record
why no charges were brought against the four (4) other suspects, and the prosecutions case before the trial court did
not attempt to draw in any other suspects other than petitioner and Calderon. On the other hand, both petitioner and
Calderon claimed during trial that they were innocent bystanders who happened to be in the vicinity of the Super
Sale Club at the time of the incident when they were haled in, along with the four (4) other suspects by the security
guards in the resulting confusion. See infra. However, both petitioner and Calderon made no move to demonstrate
that the non-filing of the charges against the four (4) other suspects somehow bolstered their plea of innocence.

In any event, from the time this case had been elevated on appeal to the Court of Appeals, no question was
anymore raised on the version of facts presented by the prosecution. Thus, any issue relative to these four (4) other
suspects should bear no effect in the present consideration of the case.
[11]
Also identified in the case record as Rosalada or Rosullado. He happened to be among the four (4) other
suspects also apprehended at the scene and brought for investigation to the Baler PNP Station. See id. Rosulada also
testified in court in behalf of Calderon. See Records, pp. 357-390.
[12]
Records, pp. 330-337.
[13]
A person who was neither among the four (4) other suspects (see note 6) nor a witness for the defense.
[14]
Rollo, p. 25.
[15]
Records, pp. 424-425.
[16]
Id. at 472-474; Penned by Judge Reynaldo B. Daway.
[17]
Id. at 474.
[18]
Id. at 484.
[19]
CA rollo, pp. 54-62.
[20]
Rollo, p. 25.
[21]
Id. at 20-27. Penned by Associate Justice Eubolo G. Verzola of the Court of Appeals Third Division,
concurred in by Associate Justices Martin S. Villarama, Jr. and Mario L. Guaria.
[22]
A motion for reconsideration filed by petitioner was denied by the Court of Appeals in a Resolution
dated 1 October 2003.
[23]
Rollo, pp. 8-15.
[24]
Id. at 12.
[25]
Id. at 9.
[26]
Id. at at 13-14.
[27]
No. 924-R, 18 February 1948, 45 O.G. 3446.
[28]
6 C.A. Rep. 2d 835 (1964).
[29]
See e.g., L.B. REYES, I THE REVISED PENAL CODE: CRIMINAL LAW (13th ed., 2001), at 112-
113 and R. AQUINO, I THE REVISED PENAL CODE (1997 ed.), at 122.
[30]
Act No. 3185, as amended.
[31]
See People v. Caballero, 448 Phil. 514, 534 (2003). Reyes defines the final point of the subjective phase
as that point where [the offender] still has control over his acts, including their (acts) natural course. See L.B.
REYES, I THE REVISED PENAL CODE: CRIMINAL LAW (13th Ed., 2001), at 101.
[32]
People v. Caballero, 448 Phil. 514, 534 (2003).
[33]
See e.g., U.S. v. Eduave, 36 Phil. 209, 212 (1917); People v. Caballero, id.
[34]
U.S. v. Eduave, 36 Phil. 209, 212 (1917).
[35]
People v. Pacana, 47 Phil. 48 (1925); cited in AQUINO, supra note 29, at 39. See also Lecaroz v.
Sandiganbayan, 364 Phil. 890, 905 (1999).
[36]
See Padilla v. Dizon, A.C. No. 3086, 23 February 1988, 158 SCRA 127, 135.
[37]
People v. Moreno, 356 Phil. 231, 248 (1998) citing BLACK'S LAW DICTIONARY, 5th ed., p. 889.
[38]
Jariol, Jr. v. Sandiganbayan, Nos. L-52095-52116, 13 August 1990, 188 SCRA 475, 490.
[39]
City of Chicago v. Morales, 527 U.S. 41 (1999) cited in Separate Opinion, J.Tinga, Romualdez v.
Sandiganbayan, G.R. No. 152259, 29 July 2004, 435 SCRA 371, 400.
[40]
J. Feliciano, Concurring and Dissenting, Umil v. Ramos, G.R. No. 81567, 3 October 1991, 202 SCRA
251, 288.
[41]
See also REVISED PENAL CODE, Art. 310, which qualifies theft with a penalty two degrees higher if
committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail
matter or large cattle or consists of coconuts taken from the premises of the plantation or fish taken 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.
[42]
See People v. Bustinera, G.R. No. 148233, 8 June 2004, 431 SCRA 284, 291, citing People v. Sison, 322
SCRA 345, 363-364 (2000).
[43]
S. GUEVARRA, COMMENTARIES ON THE REVISED PENAL CODE (4th ed., 1946), at 614.
[44]
Id. at 615.
[45]
Id. citing Inst. 4, 1, 1.

[46]
Section 1(2) of the Theft Act of 1968 states: It is immaterial whether the appropriation is made with a
view to gain, or is made for the thiefs own benefit. Sir John Smith provides a sensible rationalization for this
doctrine: Thus, to take examples from the old law, if D takes Ps letters and puts them down on a lavatory or backs Ps
horse down a mine shaft, he is guilty of theft notwithstanding the fact that he intends only loss to P and no gain to
himself or anyone else. It might be thought that these instances could safely and more appropriately have been left to
other branches of the criminal lawthat of criminal damage to property for instance. But there are cases where there is
no such damage or destruction of the thing as would found a charge under another Act. For example, D takes Ps
diamond and flings it into a deep pond. The diamond lies unharmed in the pond and a prosecution for criminal
damage would fail. It seems clearly right that D should be guilty of theft. J. SMITH, SMITH & HOGAN
CRIMINAL LAW (9th ed., 1999), at 534.
[47]
F. REGALADO, CRIMINAL LAW CONSPECTUS (1st ed., 2000), at 520.
[48]
People v. Kho Choc, 50 O.G. 1667, cited in REGALADO, id. at 521.
[49]
People v. Galang, CA, 43 O.G. 577; People v. Rico, CA, 50 O.G. 3103; cf.People v. Roxas, CA-G.R.
No. 14953, 31 October 1956, all cited in REGALADO, supra note 47 at 521.
[50]
People v. Fernandez, CA, 38 O.G. 985; People v. Martisano, CA, 48 O.G. 4417, cited in REGALADO,
supra note 47 at 521.
[51]
REGALADO, supra note 47 at 521 citing Villacorta v. Insurance Commission, G.R. No. 54171, 28
October 1980, 100 SCRA 467; Association of Baptists for World Evangelism v. Fieldmens Ins. Co., No. L-28772, 21
September 1983, 209 Phil. 505 (1983). See also People v. Bustinera, supra note 42.
[52]
The distinction being inconsequential if the criminal charge is based on a special law such as the
Dangerous Drugs Law. See e.g., People v. Enriquez, G.R. No. 99838, October 23 1997, 281 SCRA 103, 120.
[53]
38 Phil. 754 (1918).
[54]
Id. at 755.
[55]
Id.
[56]
Id. at 755-756.
[57]
Supra note 4.
[58]
Supra note 4 at 227.
[59]
Id.
[60]
People v. Dio, supra note 27 at 3450.
[61]
Id.
[62]
Id.
[63]
Id. at 3451.
[64]
People v. Flores, supra note 28 at 840.
[65]
Id. at 836. The Court of Appeals in Flores did not identify the character of these stolen merchandise.
[66]
Id. at 841.
[67]
Id.
[68]
People v. Dio, supra note 27 at 841.
[69]
People v. Naval and Beltran, CA 46 O.G. 2641.
[70]
See note 62.
[71]
AQUINO, supra note 29 at 122.
[72]
Id. at 110.
[73]
C.A. G.R. No. 20105-R, 4 October 1958, 55 O.G. 1388.
[74]
Id. at 1391. Citations omitted.
[75]
CA G.R. No. 2107-R, 31 May 1949.
[76]
Note the similarity between this holding and the observations of Chief Justice Aquino in note 72.
[77]
REYES, supra note 29 at 113.
[78]
Supra note 5.
[79]
REVISED PENAL CODE, Art. 310 states that the crime of theft shall "be punished by the penalties next
higher by two degrees than those respectively expressed in the next preceding article x x x if the property stolen x x
x consists of coconuts taken from the premises of a plantation, x x x." Thus, the stealing of coconuts when they are
still in the tree or deposited on the ground within the premises is qualified theft. When the coconuts are stolen in any
other place, it is simple theft. Stated differently, if the coconuts were taken in front of a house along the highway
outside the coconut plantation, it would be simple theft only.
[In the case at bar, petitioners were seen carrying away fifty coconuts while they were still in the premises
of the plantation. They would therefore come within the definition of qualified theft because the property stolen
consists of coconuts taken from the premises of a plantation.] Empelis v. IAC, supra note 5, at 379, 380.

[80]
Empelis v. IAC, supra note 5, at 380.
[81]
Id.
[82]
Art. 234, Cdigo Penal Espaol de 1995. See Ley Orgnica 10/1995, de 23 de noviembre, del Cdigo Penal,
http://noticias.juridicas.com/base_datos/Penal/lo10-1995.html (Last visited, 15 April 2007). The traditional qualifier
but without violence against or intimidation of persons nor force upon things, is instead incorporated in the
definition of robbery (robos) under Articulo 237 of the same Code (Son reos del delito de robo los que, con nimo de
lucro, se apoderaren de las cosas muebles ajenas empleando fuerza en las cosas para acceder al lugar donde stas
se encuentran o violencia o intimidacin en las personas.)
By way of contrast, the Theft Act 1968 of Great Britain defines theft in the following manner: A person is
guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently
depriving the other of it; and thief and steal shall be construed accordingly. See Section 1(1), Theft Act 1968 (Great
Britain). The most notable difference between the modern British and Spanish laws on theft is the absence in the
former of the element of animo lucrandi. See note 42.
[83]
1 S. VIADA, CODIGO PENAL REFORMADO DE 1870 (1926 ed) at 103.

[84]
Considerando que segn se desprende de la sentencia recurrida, los dependientes de la sastrera de D.
Joaquin Gabino sorprendieron al penado Juan Gomez Lopez al tomar una capa que haba en un maniqu, por lo que
hubo de arrojarla al suelo, siendo detenido despues por agentes de la Autoridad yque esto supuesto es evidente que
el delito no aparece realizado en toda la extensin precisa para poderlo calificar como consumado, etc. Id. at 103-
104.
[85]
The other examples cited by Viada of frustrated theft are in the case where the offender was caught
stealing potatoes off a field by storing them in his coat, before he could leave the field where the potatoes were
taken, see Viada (supra note 83, at 103), where the offender was surprised at the meadow from where he was
stealing firewood, id.
[86]
E. CUELLO CALON, II DERECHO PENAL (1955 ed.), at 799 (Footnote 1).
[87]
Id. at 798-799.
[88]
Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA 243, 266, citing United States v.
Wiltberger, 18 U.S. 76 (1820).
[89]
Laurel v. Abrogar, G.R. No. 155076, 27 February 2006, 483 SCRA 243. See also Dowling v. United
States, 473 U.S. 207 (1985).
[90]
See e.g., People v. Bustinera, supra note 42.

[91]
AQUINO, supra note 29, at 110.
[92]
People v. Obillo, 411 Phil. 139, 150 (2001); People v. Bernabe, 448 Phil. 269, 280 (2003); People v.
Bustinera, supra note 42 at 295.
[93]
44 Phil. 720 (1923).
[94]
Id. at 726.
[95]
Justice Regalado cautions against putting a premium upon the pretensions of an accused geared towards
obtention of a reduced penalty. REGALADO, supra note 47, at 27.

FIRST DIVISION

[G.R No. 134056. July 6, 2000]

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


FIGUEROA and BEATRICE VALERIO, accused.
ROBERT FIGUEROA, accused-appellant.

DECISION
DAVIDE, JR., C.J.:

Accused-appellant ROBERT FIGUEROA (hereafter OBET) appeals from


the 18 May 1998 Decision[1] of the Regional Trial Court of Paraaque City,
Branch 259, in Criminal Case No. 97-306, convicting him of violation of Section
14-A[2], Article III of R.A. No. 6425, otherwise known as the Dangerous Drugs
Act of 1972, as amended by RA. No. 7659. His co-accused Beatrice Valerio
(hereafter Betty) was acquitted.
OBET and Betty were indicted under an information, dated 2 April 1997,
whose accusatory portion reads as follows:
That on 16 February 1997 and for sometime prior thereto in Paraaque City
and within the jurisdiction of this Honorable Court, the above-named accused
without authority of law, conspiring, confederating and helping one another,
did then and there, wilfully, unlawfully and feloniously manufacture, produce,
prepare or process methamphetamine hydrochloride or shabu, a regulated
drug amounting to a 2.4 liters, directly by means of chemical synthesis.
CONTRARY TO LAW. [3]

When arraigned OBET and Betty each entered a plea of not guilty. [4] Trial on
the merits then ensued.
The witnesses presented by the prosecution were NBI Forensic Chemist
Mary Ann T. Aranas, NBI Special Investigator III Pio M. Palencia (hereafter
PALENCIA), and NBI Intelligence Agent II Martin Soriano (hereafter
SORIANO).
PALENCIA testified that on 15 February 1997, he was in the office of
SORIANO at Project 6, Quezon City, when they received a call from their
informant, a woman, who reported that a certain OBET was allegedly engaged
in large-scale drug trafficking in Makati City. PALENCIA and SORIANO
forthwith instructed their informant to establish contact with OBET for a buy-bust
operation. After several hours, the informant reported that OBET was already
waiting for her at No. 1485 Soliman Street, Makati City, with instructions for her
to come alone as soon as she was ready with P150,000. PALENCIA then
caused the dusting of fluorescent powder over ten pieces of authentic P100 bills
as buy-bust money and gave them to the informant.[5]
On board a taxi, PALENCIA, SORIANO and their informant proceeded to
the rendezvous area. They arrived at half past twelve o'clock in the early
morning of 16 February 1997. As the gate was already open, the informant
entered the premises, while PALENCIA and SORIANO discreetly crawled and
positioned themselves near the gate of the house. Strategically positioned,
PALENCIA overheard OBET ask the informant whether she had the money.
PALENCIA then saw the informant hand over the money to OBET. While
counting the money, OBET sensed the presence of other people in the area.
OBET, who was in possession of a .45 caliber pistol, fired it twice toward the
direction of PALENCIA, while hurrying towards the house. OBET then held
hostage his mistress, Estrella Brilliantes, and her two children for the next three
hours until the arrival of one Major Roberto Reyes to whom OBET surrendered.
PALENCIA and SORIANO brought OBET, his firearm and the recovered buy-
bust money to the WPD Headquarters for recording purposes and, thereafter, to
the NBI Headquarters.[6]
At the NBI Headquarters, PALENCIA and SORIANO methodically
interrogated OBET about the source of his shabu. OBET eventually volunteered
that his source was a certain Betty of 263 El Grande Street, B.F. Homes,
Paraaque City. PALENCIA and SORIANO took OBET to Betty's house as a
follow-up operation. They arrived at around 6:00 a.m. of the same day, 16
February 1997. As OBET called Betty earlier to tell her that he was arriving,
Betty already had the gate opened for them. After parking, PALENCIA saw
Betty waiting for them. Upon seeing OBET in handcuffs, Betty asked what
happened. OBET replied that he was just caught in a buy-bust operation.
PALENCIA and SORIANO then tried to convince Betty to surrender the shabu
that OBET insisted was hidden inside the house. As Betty persistently denied
the existence of the shabu, PALENCIA told OBET to confer with Betty. After a
while, OBET proceeded to the kitchen of the guesthouse located outside the
main house, followed by Betty. OBET then promptly pointed to what he termed
as liquid shabu inside a white pail along with other drug paraphernalia, such as
a beaker spray. PALENCIA and SORIANO seized the items.[7]
Thereafter, PALENCIA requested a laboratory examination of all the seized
items and an ultraviolet light examination over the persons of OBET, Betty and
a certain Eva Baluyot.[8] PALENCIA claimed that based on the certification
issued by the Forensic Chemistry Division of the NBI, all the items seized from
Betty's residence were positive for methamphetamine hydrochloride except
specimen no.7; while from among the persons subjected to ultraviolet light
examination, only OBET was found positive for fluorescent powder. [9]
On cross-examination, PALENCIA admitted that he and SORIANO
conducted the search without a search warrant, but with the consent of
Betty.[10] He also admitted that he did not actually see OBET or Betty in the act of
manufacturing shabu.[11]
NBI Intelligence Agent II SORIANO corroborated PALENCIA's testimony.
He likewise admitted that the custodial investigation of OBET, during which he
divulged Betty as the source of shabu, was conducted in the absence of any
counsel. SORIANO also confirmed PALENCIA's testimony that they were not
armed with a search warrant, but that they conducted the follow-up operation at
Betty's house under the hot pursuit theory.[12] He further maintained that OBET,
after conferring with Betty, uttered, Ako na nga, ako na nga"(I will do it, I will do
it). OBET then proceeded to the dirty kitchen, pointed to the refrigerator and
had it moved. Thereafter, SORIANO saw a plastic pail containing liquid with
floating brown substances.
SORIANO admitted that he and PALENCIA neither witnessed OBET and
Betty manufacture shabu in the manner described in Section 2(j) of the
Dangerous Drugs Act[13]; nor did they possess evidence, independent of the
items they had seized, that OBET and Betty were engaged in the labeling or
manufacturing of shabu.[14]
Forensic Chemist Mary Ann T. Aranas testified that on 16 February 1997,
she conducted a laboratory examination for the presence of any prohibited or
regulated drug on eleven different specimens (Exhibits "B"-"L").[15] The result of
the examination disclosed that all the specimens except specimen no. 7 (Exhibit
"H") were positive for methamphetamine hydrochloride.[16] She further observed
that specimen no. 8 (Exhibit I- I-2), the brown liquid with floating solid flakes
contained in a plastic pail, was positive for epedrine, [17] a substance used in the
manufacture of methamphetamine hydrochloride. She opined that this crude
form of shabu would have to undergo chemical processes, like extraction,
crystallization, distillation, before it could be finally converted into shabu's
crystalline form. She also conducted a fluorescent powder examination over the
persons of OBET and Betty. Only OBET gave a positive result.[18]
On the other hand, OBET testified that while he was watching television on
the night of 15 February 1997, he heard the doorbell rang. Upon seeing Eva
Baluyot, his childhood friend, he opened the door for her. Inside the house, Eva
handed him a bundle of money and stated that she was buying shabu from him.
OBET emphatically told Eva that he was not engaged in such illegal trade and
returned the money. OBET then accompanied Eva out of the house. At the
garage, OBET noticed someone peeping from the dark; so he told Eva to go
back inside the house with him. Eva ignored the request. OBET thus left Eva at
the garage and got his .45 caliber gun from his house. While he was locking the
door, his handgun accidentally fired off, as he forgot that it had already been
cocked. This blast was followed by shouts of people outside claiming that they
were NBI men. Uncertain, OBET did not go out of the house but instead told the
alleged NBI men to call the Makati Police, specifically Major Reyes. The NBI
agents, however, persisted in convincing OBET to go out of the house. He did
get out of his house after three hours when he heard the voice of Major Reyes.
OBET gave to Major Reyes his gun. The Makati Police and the NBI men
thereafter conducted a joint search inside OBET's house which, however,
yielded nothing. OBET was then brought to the Makati Police Headquarters
where the incident was recorded. Thereafter, PALENCIA, SORIANO
and another NBI man brought OBET to the house of Betty, his former live-in
partner, at El Grande Street, B.F. Homes, Paraaque City, upon the insistence
and information of Eva Baluyot.[19]
Upon entering B.F. Homes, SORIANO instructed OBET to call and tell Betty
that he was already near. The gate was already opened when they arrived, and
the NBI men freely parked their car at the garage. Then, PALENCIA and
SORIANO alighted from the car and entered Betty's house. OBET was left in
the car under the charge of the third NBI man; hence, he knew nothing of what
happened inside Betty's house.[20]
For her part, Betty admitted that she was romantically involved with OBET
and had a child by him. She recalled that on 16 February 1997, OBET called at
around 6:00 a.m. and requested her to open the gate for him, as he was
already near. She ran down to the garage and opened the gate. Since her car
was parked halfway through the garage, she went to the main house to get her
car keys to make way for OBET's car. But as she came out of the main house,
OBET's car was already parked inside the garage. She noticed that OBET had
two companions with long firearms. The two, whom Betty later found out as NBI
men PALENCIA and SORIANO, informed her that they had just come from a
buy-bust operation and that OBET had led them to her house, as there were
illegal chemicals kept in the premises. Shocked andamazed, she then asked for
a search warrant, but the NBI men could not produce any.[21]
Betty further recalled that the NBI men claimed that they found contraband
items near the dirty kitchen at a small space behind the refrigerator where
cases of softdrinks were stored. Betty denied any knowledge that there were
illegal chemicals inside her house and that these were manufactured into
shabu. She also denied knowing Eva Baluyot.[22]
On cross-examination, Betty disclaimed her alleged consent to the search
of her house, for she specifically asked the NBI men for a search warrant. She
asserted that she did not see the NBI men find the shabu paraphernalia
because she went up to the second floor of her house. She only saw that the
NBI men were bringing several items out of her house.[23]
The trial court agreed with the prosecution's theory that the warrantless
arrests of OBET and Betty were conducted within the purview of valid
warrantless arrests enumerated in Section 5,[24] Rule 113 of the Rules of
Court. It then ruled as valid the consented warrantless search conducted at
the house of Betty. Consequently, it found that the very items seized by the
NBI agents at the kitchen of Betty's guesthouse were admissible as
the corpus delicti of the violation of Section 14-A of the Dangerous Drugs Act.
Thus, the trial court "believed" that the paraphernalia seized were
indispensable to the processing or manufacturing of shabu into crystallized
form. Although it conceded that the prosecution witnesses did not actually
see the crystallization processes, the trial court observed that the Dangerous
Drug Act does not require that there be actual manufacturing activities at the
time of the seizure.
The trial court, however, acquitted Betty for failure of the prosecution to
adduce evidence that she, in conspiracy with OBET, manufactured shabu
without the requisite authority. It did not arrive at a similar conclusion as far as
OBET was concerned, but declared that based on the evidence on record,
OBET's guilt of the crime charged was proved beyond reasonable doubt. Thus,
in the decision of 18 May 1998 the trial court decreed as follows:
WHEREFORE, finding the evidence insufficient to warrant the conviction of
accused Beatrice Valerio y del Rosario for Violation of Sec. 14-a of Article III
of R.A. 6425 as amended by R.A. 7659, this court pronounces her NOT
GUILTY and considering that she is detained at the NBI the NBI is directed to
immediately release her from custody unless there be some reasons for her
detention. Finding, however, accused Robert Figueroa GUILTY as charged
[of] the same offense in the absence of any mitigating or aggravating
circumstances, this Court hereby sentences him to suffer the penalty of
Reclusion Perpetua and to pay a fine of P500,000.00 and to suffer the
accessory penalties provided by law, specifically Art. VI [sic] of the Revised
Penal Code.
The Clerk of Court is directed to prepare the Mittimus for the immediate
transfer of Robert Figueroa to the Bureau of Corrections in Muntinlupa City.
SO ORDERED.
Unsatisfied with the verdict, OBET appealed the decision to us. He
principally premises his prayer for acquittal on the failure of the State to show
by convincing evidence that shortly prior to or during custodial investigation, he
was apprised of his constitutional rights to remain silent, to have a competent
and independent counsel preferably of his own choice, and to be informed of
such rights. He asserts that he did not waive those rights. Thus, whatever
admissions were allegedly extracted from him are inadmissible in evidence.
Even assuming that his extrajudicial statements were admissible, Betty's
acquittal would work in his favor because the indictment is based on
conspiracy. In a conspiracy, the act of one is the act of all. Therefore, the acts
imputed to him were also the acts of Betty, and vice versa. Since the trial court
considered insufficient for conviction the acts of Betty, then he, too, should be
acquitted.
In the Appellee's Brief, the Office of the Solicitor General (OSG) maintains
that not all warrantless searches and seizures are illegal. For one, a warrantless
search and seizure is not unreasonable and offensive to the Constitution if
consent is shown. In this case, the prosecution convincingly proved that Betty
consented to the search of her house. With her consent, Betty validly waived
her constitutional right against unreasonable searches and seizure.
Consequently, the items seized in her house by virtue of the consented search
are admissible in evidence against her and OBET.
The OSG also contends that the acquittal of Betty does not per se work to
absolve OBET of the crime charged. Betty's believable disavowal of the location
of the paraphernalia and other circumstances on record reasonably indicative of
her innocence cannot redound in favor of OBET. The latter apparently knew the
exact location of the hidden paraphernalia. By such disclosure, it is not far-
fetched to conclude that OBET had been actually engaged in the manufacture
of shabu.
We first resolve the question of whether Betty's acquittal would benefit
OBET.
We disagree with the theory of OBET that in an indictment based on
conspiracy, the acquittal of a conspirator likewise absolves a co-conspirator
from criminal liability. Indeed, the rule is well-settled that once a conspiracy is
established, the act of one is the act of all, and each of the conspirators is liable
for the crimes committed by the other conspirators.[25] It follows then that if the
prosecution fails to prove conspiracy, the alleged conspirators should be held
individually responsible for their own respective acts. Accordingly, OBET's
criminal liability in this case must be judged on the basis of his own acts as
established by the quantum of proof required in criminal cases.
We should then determine whether the prosecution was able to establish
beyond reasonable doubt OBET's guilt for unauthorized manufacture of shabu,
a regulated drug.
After a meticulous review of the records and of the evidence adduced by
the parties in this case, we find that what PALENCIA and SORIANO did left
much to be desired, thereby resulting in a bungled prosecution of the case. The
evidence for the prosecution miserably failed to prove OBET's guilt of the
offense charged.
The buy-bust operation was a failure because no shabu or other regulated
or prohibited drug was found in OBET's person and residence. No evidence
was adduced to show that OBET handed shabu over to the informant. Yet, he
was placed in custody. For what offense he was held in custody does not,
initially, appear very clear on the record.
It was established that OBET fired two shots toward the direction of
PALENCIA and SORIANO and held hostage his mistress and her two children.
Yet he was not placed under custodial investigation for such crimes as grave
threats, coercion, illegal possession of firearms, or crimes other than that with
which he was charged.
On the contrary, OBET was held in custody and investigated or interrogated
about the source of the shabu, none of which was found during the buy-bust
operation. In short he was held in custody as a consequence of the failed buy-
bust operation and as a follow-up to link him to the source and establish a
conspiracy in the illegal trade of shabu. Allegedly, he admitted that the source
was Betty. On the basis of that admission, PALENCIA and SORIANO, together
with OBET, proceeded to the residence of Betty. Needless to state, OBET
cannot be investigated for anything in relation to shabu while under custody
without informing him of his rights to remain silent and to have a competent and
independent counsel preferably of his own choice. Any waiver of such rights
should be in writing and made in the presence of a counsel pursuant to Section
12 (1)[26], Article III of theConstitution. It has been held that these rights attach
from the moment the investigation starts, i.e. when the investigating officers
begin to ask questions to elicit information and confessions or admissions from
the suspect.[27]
It is always incumbent upon the prosecution to prove at the trial that prior to
in-custody questioning, the confessant was informed of his constitutional rights.
The presumption of regularity of official acts does not prevail over the
constitutional presumption of innocence.[28] Hence, in the absence of proof that
the arresting officers complied with these constitutional safeguards, extrajudicial
statements, whether inculpatory or exculpatory, made during custodial
investigation are inadmissible and cannot be considered in the adjudication of a
case.[29] In other words, confessions and admissions in violation of Section 12
(1), Article III of the Constitution are inadmissible in evidence against the
declarant and more so against third persons.[30] This is so even if such
statements are gospel truth and voluntarily given.[31] Such statements are
useless except as evidence against the very police authorities who violated the
suspect's rights.[32]
SORIANO admitted that the custodial investigation of OBET was conducted
without the presence of a lawyer, and there is no proof that OBET waived said
right and the right to remain silent. No waiver in writing and in the presence of a
counsel was presented. Thus, pursuant to paragraph 3 of Section 12 of Article
III of the Constitution any admission obtained from OBET in the course of his
custodial investigation was inadmissible against him and cannot be used as a
justification for the search without a warrant.
The search conducted on Betty's house was allegedly consented to by
Betty. Indeed, a consented search is one of the exceptions to the requirement
of a search warrant. In People v. Chua Ho San @ Tsay Ho San,[33] we pointed
out that:
This interdiction against warrantless searches and seizures, however, is not
absolute and such warrantless searches and seizures have long been
deemed permissible by jurisprudence in instances of (1) search of moving
vehicles, (2) seizure in plain view, (3) customs searches, (4) waiver or
consented searches, (5) stop and frisk situations (Terry search), and (6)
search incidental to a lawful arrest. The last includes a valid warrantless
search and seizure pursuant to an equally valid warrantless arrest, for, while
as a rule, an arrest is considered legitimate if effected with a valid warrant of
arrest, the Rules of Court recognize permissible warrantless arrest, to wit: (1)
arrest flagrante delicto, (2) arrest effected in hot pursuit, and (3) arrest of
escaped prisoners.
In case of consented searches or waiver of the constitutional guarantee,
against obtrusive searches, it is fundamental that to constitute, a waiver, it must
first appear that (1) the right exists; (2) that the person involved had knowledge,
either actual or constructive, of the existence of such right; and (3) the said
person had an actual intention to relinquish the right.[34] The third condition does
not exist in the instant case. The fact is, Betty asked for a search warrant, thus:
Q And of course, these NBI Special Investigators informed you of their purpose is that
correct?
A Yes sir.
Q And of course believing that there was nothing in your house you acceded?
A No sir, I was asking for a search warrant.
Q And what was their reply?
A They did not have any but that Figueroa had led them to the property.[35]
Neither can the search be appreciated as a search incidental to a valid
warrantless arrest of either Betty or OBET as intimated by the trial court. First,
Betty's arrest did not precede the search. Second, per the prosecution's
evidence OBET was not arrested for possession or sale of regulated or
prohibited drugs as a consequence of the buy-bust operation. He surrendered
after taking hostage Estrella and her two children, although he was thereafter
held in custody for further questioning on illegal drugs.
There is no showing that the house occupied by Betty and the articles
confiscated therefrom belong to OBET. That OBET pointed to PALENCIA and
SORIANO the places where the articles were found provides no sufficient basis
for a conclusion that they belonged to him. Even if the articles thus seized
actually belonged to him, they cannot be constitutionally and legally used
against him to establish his criminal liability therefor, since the seizure was the
fruit of an invalid custodial investigation.
WHEREFORE, in view of all the foregoing, the 18 May 1998 Decision of the
Regional Trial Court, Branch 259, Paraaque City, convicting herein accused-
appellant Robert Figueroa of violation of Section 14-A, Article III of the
Dangerous Drugs Act, as amended, is hereby REVERSED and SET ASIDE. He
is hereby ACQUITTED of the crime charged, and ORDERED immediately
released from confinement or detention unless his continued detention is
warranted by virtue of a valid legal cause. The Director of the Bureau of
Corrections is directed to submit within five (5) days from receipt of a copy of
this decision a report on the release of accused-appellant.
Costs de oficio.
SO ORDERED.
Puno, Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

[1]
Rollo, 20-37. Per Judge Zosimo V. Escano.
[2]
The Sections reads:
Sec. 14-A. Manufacture of Regulated Drugs. The penalty of reclusion perpetua to death and a fine ranging from five
hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall
engage in the manufacture of any regulated drug.
[3]
Rollo, 13.
[4]
Original Record (OR), 52.
[5]
TSN, 8 September 1997, 7-17.
[6]
TSN, 8 September 1997, 26-49.
[7]
Id., 50-69.
[8]
TSN, 8 September 1997, 93.
[9]
Id., 89-97.
[10]
Id., 133-135.
[11]
Id., 148.
[12]
TSN, 20 October 1997, 78-80.
[13]
Sec. 2(j) Manufacture means the production, preparation, compounding or processing of a dangerous drug either
directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical
synthesis or by a combination of extraction and chemical synthesis, and shall include any packaging, or repacking of
such substance or labeling or relabeling of its container; except that such terms do not include the preparation,
compounding, packaging, or labeling of a drug or other substance by a duly authorized practitioner as an incident to
his administration or dispensing of such drug or substance in the course of his professional practice.
[14]
TSN, 20 October 1997, 83-84.
[15]
TSN, 11 August 1997, 11-24.
[16]
Id., 25-26.
[17]
Id., 26.
[18]
OR, 96.
[19]
TSN, 10 December 1997, 7-20.
[20]
Id., 22-25.
[21]
TSN, 9 February 1998, 13-16.
[22]
TSN, 9 February 1998., 17-19.
[23]
Id., 28-32.
[24]
It reads:
Sec. 5. Arrest, without a warrant; when lawful A peace officer or a private person may, without a warrant,
arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting
to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that
the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred
from one confinement to another.
[25]
People v. Veronas, 179 SCRA 423, 427 (1989); People v. Enriquez, 281 SCRA 103 (1997); People v. Cariquez,
G.R. No. 129304, 27 September 1999.
[26]
It reads:
Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of
his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person
cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing
and in the presence of counsel.
[27]
People v. Rivera, 245 SCRA 421, 431 (1995)
[28]
People v. Wong Chuen Ming, 256 SCRA 182 (1996)
[29]
See People v. Nolasco, 163 SCRA 623 (1988); People v. Lim, 196 SCRA 809 (1991); People v. Javar, 226 SCRA
103 (1993); People v. Januario, 267 SCRA 608 (1997); People v. Santos, 283 SCRA 443 (1997)
[30]
See People v. Ramirez, 169 SCRA 711, 719 (1989)
[31]
People v. Agustin, 240 SCRA 541, 556-557 (1995)
[32]
People v. Ramirez, supra note 30.
[33]
308 SCRA 432, 444 (1999)
[34]
Id., 450, citing People v. Burgos, 144 SCRA 1 (1986)
[35]
TSN, 9 February 1999, 28-29.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-14128 December 10, 1918
THE UNITED STATES, plaintiff-appellee,
vs.
SEVERINO VALDES Y GUILGAN, defendant-appellant.
Ariston Estrada for appellant.
Attorney-General Paredes for appellee.

TORRES, J.:
This cause was instituted by a complaint filed by the prosecuting attorney before the Court of First
Instance of this city, charging Severino Valdes y Guilgan and Hugo Labarro y Bunaladi, alias Hugo
Navarro y Bunadia, with the crime of arson, and, on the 20th of May of the present year, judgment
was rendered whereby Severino or Faustino Valdes u Guilgan was sentenced to six years and one
day of presidio mayor and to pay one-half of the costs. From this judgment this defendant appealed.
With respect to Hugo Labarro or Navarro, the proceedings were dismissed with the other half of the
costs de officio.
Between 8 and 9 o'clock in the morning of April 28th of this year, when M. D. Lewin was absent from
the house in which he was living his family, at No. 328, San Rafael Street, San Miguel, Mrs.
Auckback, who appears to have been a resident of the neighborhood, called Mrs. Lewin and told her
that much smoke was issuing from the lower floor of the latter's house, for until then Mrs. Lewin had
not noticed it, and as soon as her attention was brought to the fact she ordered the servant Paulino
Banal to look for the fire, as he did and he found, so asked with kerosene oil and placed between a
post of the house and a partition of the entresol, a piece of a jute sack and a rag which were burning.
At that moment the defendant Valdes was in the entresol, engaged in his work of cleaning, while, the
other defendant Hugo Labarro was cleaning the horses kept at the place.
On the same morning of the occurrence, the police arrested the defendants, having been called for
the purpose by telephone. Severino Valdes, after his arrest, according to the statement, Exhibit C,
drawn up in the police station, admitted before several policemen that it was he who had set the fire
to the sack and the rag, which had been noticed on the date mentioned. and he also who had
started the several other fires which had occurred in said house on previous days; that he had
performed such acts through the inducement of the other prisoner, Hugo Labarro, for they felt
resentment against, or had trouble with, their masters, and that, as he and his coaccused were
friends, he acted as he did under the promise on Labarro's part to give him a peso for each such fire
that he should start.lawphi1.net

The defendant Severino Valdes admitted, in an affidavit, that he made declarations in the police
station, although he denied having placed the rag and piece of jute sack, soaked with kerosene, in
the place where they were found, and stated, that it was the servant Paulino who had done so. He
alleged that, on being arraigned, he stated that he had set fire to a pile of dry mango leaves that he
had gathered together, which is contrary to the statement he made in the police station, to wit, that
he had set the fire to the said rag and piece of sack under the house.
For lack of evidence and on his counsel's petition, the case was dismissed with respect to the other
defendant Hugo Labarro.
Owing to the repeated attempts made for about a month past, since Severino Valdes Began to serve
the Lewin family, to burn the house above mentioned. occupied by the latter and in which this
defendant was employed, some policemen were watching the building and one of them, Antonio
Garcia del Cid., one morning prior to the commission of the crime, according to his testimony, saw
the defendant Valdes climbing up the wall of the warehouse behind the dwelling house, in which
warehouse there was some straw that had previously been burned, and that, when the defendant
noticed the presence of the policeman, he desisted from climbing the wall and entering the
warehouse.
The fact of setting fire to a jute sack and a rag, soaked with kerosene oil and placed beside an
upright of the house and a partition of the entresol of the building, thus endangering the burning of
the latter, constitutes the crime of frustrated arson of an inhabited house, on an occasion when some
of its inmates were inside of it.. This crime of provided for and punished by article 549, in connection
with articles 3, paragraph 2, and 65 of the Penal Code, and the sole proven perpetrator of the same
by direct participation is the defendant Severino Valdes, for, notwithstanding his denial and
unsubstantiated exculpations, the record discloses conclusive proof that it was he who committed
the said unlawful act, as it was also he who was guilty of having set the other fires that occurred in
said house. In an affidavit the defendant admitted having made declarations in the police station,
and though at the trial he denied that he set fire to the sacks and the rag which were found soaked in
kerosene and burning, and, without proof whatever, laid the blame unto his codefendant, the fact is
that confessed to having set fire to a pile of dry leaves whereby much smoke arose from the lower
part of the house, but which, however, did not forewarn his mistress, Mrs. Lewin, though she should
have noticed it, and he allowed the sack and the rag to continue burning until Mrs. Auckback noticing
a large volume of smoke in the house, gave the alarm. No proof was submitted to substantiate the
accusation he made against the servant Paulino, who apparently is the same persons as the driver
Hugo Labarro.
The crime is classified only as frustrated arson, inasmuch as the defendant performed all the
acts conceive to the burning of said house, but nevertheless., owing to causes independent
of his will, the criminal act which he intended was not produced. The offense committed
cannot be classified as consummated arson by the burning of said inhabited house, for the
reason that no part of the building had yet commenced to burn, although, as the piece of
sack and the rag, soaked in kerosene oil, had been placed near partition of the entresol, the
partition might have started to burn, had the fire not been put out on time.
There is no extenuating or aggravating circumstance to be considered in a connection with the
commission of the crime, and therefore the penalty of presidio mayor immediately inferior in degree
to that specified in article 549 of the Penal Code, should be imposed in its medium degree.
For the foregoing reasons the judgment appealed from should be affirmed, with the modification
however, that the penalty imposed upon the defendant shall be given eight years and one day
of presidio mayor, with the accessory penalties prescribed in article 57 of the Code. The defendant
shall also pay the costs of both instances. So ordered.
Arellano, C.J., Johnson, Araullo, Street, Malcolm and Avanceña, JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 100699 July 5, 1996


PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EDGAR GUTIERREZ y CORTEZ, accused-appellant.

VITUG, J.:p
The accused, Edgar Gutierrez y Cortez, appeals from the 28th February 1991 judgment of the Regional Trial Court (Special Criminal Court)
of Kalookan City, Branch 131, convicting him of arson under Presidential Decree No. 1613, amending the Revised Penal Code, and
imposing on him the penalty of reclusion perpetua (Criminal Case No. C-34173[89]), in an information, dated 16 December 1989, that reads:
That on or about the 14th day of December 1989 in Kalookan City, Metro Manila and
within the jurisdiction of this Honorable Court, the above-named accused, motivated
by a desire for revenge, with deliberate intent to cause damage, did then and there
wilfully, unlawfully and feloniously set fire to the house of one JOSEFA ARROYO y
ALANO, thereby causing damage to the front wooden-made walling located at the
groundfloor thereof in the amount of P500.00, to the damage and prejudice of the
latter in the amount of P500.00.
Contrary to law. 1
The accused pleaded "not guilty" to the charge.
The evidence for the prosecution, briefly, is to the following effect:
In the evening of 14 December 1989, at around eight o'clock, while Felipe Enriquez, a barangay
tanod, was in front of his house in Makabalo Street, Kalookan City, he noticed a commotion at a
distance. Repairing to the place, he saw appellant, bloodied, being embraced by his mother Corazon
Gutierrez. His neighbor Paul Polinga, a policeman of Valenzuela, was, by the time Enriquez arrived
at the scene, already attending to appellant. Enriquez was told by some people around him that
there had been a "fight" between appellant and a son of one Mario Alano.
Later that evening, at about 11:30, while Enriquez and appellant's brother Eric and sister Bolet, were
conversing at the corner of Rajah Soliman and Makabalo Streets about the incident, appellant
passed by carrying a bag containing what seemed to be "gasoline" ("parang gasolina" 2). Enriquez
followed appellant. A few meters away, he saw appellant throw the bag at the house of Mario Alano
and then lit it. The plea of appellant's mother, who screamed "Egay, Egay, huwag," 3 was ignored by
the son. Enriquez yelled '"Mang Mario, Mang Mario, nagliliyab ang bahay ninyo!" 4 Forthwith,
Enriquez saw Mario Alano pouring water on the ablaze portion of the house. Neighbors rushed in to
help put the fire under control.
Mario Alano, testifying, said that he was at home in 104 Rajah Soliman Street, Kalookan City,
watching the television program "Tell the People," 5 when he heard appellant, whose voice he was
familiar with, shouting that he (appellant) would blow-up the house. Mario then heard a sound
resembling that of a piece of wet cloth ("basahan" 6) being hurled at the wall of the house. Instantly,
the wall was aflame.
The following morning, at approximately 8:30, Pat. Celerino Bertes, the desk officer of the Kalookan
City's 6th Avenue police detachment, received a call on the "arson" incident in Makabalo Street.
Police officer Nelson Ombao, together with Pfc. Briccio Fernando and Pat. Bertes, were dispatched
to the place. The group was met by Mario Alano who pointed to appellant as being the author of the
arson. The police officers invited appellant to the police headquarters. He was accompanied by his
mother and an uncle.
P/Sgt. Reyes later conducted an ocular inspection. He took some fragments from the burnt portion of
the house and referred them to the PC Crime Laboratory for examination.
The house, made of light wooden materials and galvanized iron, was owned by Mario Alano's sister,
Josefa Arroyo, an overseas worker. According to Joselito Arroyo, Josefa's son, it was his eldest
sister, Carolina, who lodged the complaint with the police. Carolina informed the witness that a
carpenter placed the cost for the repair of the house at P500.00.
The defense interposed alibi.
Democrito Real, an optician and a member of the Lupong Tagapamayapa, residing at Barangay 36,
testified that while he was on his way home at around 11:15 p.m. on 14 December 1989, he saw
appellant with a bandaged head, contusions on his face and a shut eye. Appellant requested Real to
allow him (appellant) to spend the night at the Real residence so as not to alarm appellant's ailing
mother considering his physical condition at the time. Real agreed. Appellant thus stayed overnight
with the Reals.
Attempting to narrate the events that took place during the evening of 14 December 1989, appellant
said that, between 8:00 to 9:00, while he was on his way home, he lighted a "five-star" firecracker
near the place where his brother and two friends were having a drinking spree. Apparently angered,
appellant's brother stood up, raised his arm and took aim at appellant. Appellant tried to move away.
In the process, he hit the table of the group of young Alano. The table was toppled and bottles of
liquor and the finger food fell to the ground. Alano and company started hitting appellant on the head
and face until his mother succeeded in freeing him away from the group. Paul Polinga, a policeman,
brought appellant to the Jose Reyes Hospital for treatment. From the hospital, he boarded a tricycle
and alighted at Bayani Street. He requested Real to allow him to pass the night in Real's house. The
following morning, at around 7:15, he left the house to look for his brother. Instead, he met Mario
Alano who asked him to admit having been responsible for setting the latter's house on fire. Later, at
the police station, he wanted to relate what had happened but the police took only the statement of
Mario Alano. He was detained until noon when he was escorted to the office of Fiscal Villalon before
whom he admitted having committed the offense.
In its 28th February 1991 decision, the trial court 7 found the accused guilty beyond reasonable doubt
of the offense charged; it concluded:
WHEREFORE, the Court renders judgment CONVICTING the herein accused
EDGAR GUTIERREZ y CORTEZ for the crime of Arson punishable under the
Revised Penal Code, as amended by Presidential Decree 1613 and sentences him
to suffer the maximum penalty of RECLUSION PERPETUA; to pay the owner of the
house Josefa Arroyo the sum of Five Hundred (P500.00) Pesos as actual damages
and to pay the costs.
SO ORDERED. 8
In this appeal, appellant contends that the corpus delicti of the crime of arson has not been
established. 9
Proof of the corpus delicti, indeed, is indispensable in the prosecution of arson 10 as in all kinds of
criminal offenses as well. Corpus delicti means the substance of the crime; it is the fact that a crime
has actually been committed. 11 In arson, the corpus delicti rule rule is generally satisfied by proof of
the bare occurrence of the fire and of its having been intentionally caused. 12 Even the
uncorroborated testimony of a single eyewitness, if credible, may be enough to prove the corpus
delicti and to warrant conviction. 13
In this case, the charge against appellant was amply supported in evidence by the eyewitness
accounts of Felipe Enriquez and Mario Alano. Also offered in evidence were copies of the police
"blotters" of two barangays 14reflecting the report that appellant had thrown a bag of gasoline at the
house of Mario Alano, then lit it and, after setting a portion of the house on fire, fled. As regards
appellant's identity, Enriquez testified that he and appellant's brother and sister were near a Meralco
post when appellant went past them 15 Enriquez followed appellant and saw how the latter threw the
substance he was carrying at Alano's house. The conditions of visibility were favorable. 16Indeed,
even the recognition by Mario Alano of appellant's voice could have sufficed 17 to pin down
culpability.
The evidence against appellant is simply too overwhelming for it to be easily overcome by an
invocation of alibi. Besides, the essential requirements of distance and the impossibility of an
accused being at the scene of the crime at the crucial time must be attendant so as to give this
defense any serious consideration.
Appellant assails the credibility of Enriquez by an assertion that his testimony is "ill-motivated." 18 The
Court itself has reviewed Enriquez's testimony, and it is satisfied that his statements disclose
frankness, cohesiveness, and an absence of any serious dissemblance or
inconsistency. 19 Moreover, the trial court's assessment on the credibility of the witnesses, which has
had the opportunity of observing how they have comported themselves at the witness stand, cannot
just be ignored.
The information charges appellant with "'violation of P.D. 1613" without specifying the
particular provision breached. The information having failed to allege whether or not the
burnt house is inhabited, 20 and not having been established that the house is situated in a
populated or congested area, 21 appellant should be deemed to have only been charged with
plain arson under Section 1 of the decree. Kalookan City might be a densely populated part of
the metropolis but its entire territory cannot be said to be congested. Although the whole 2-
storey wood and galvanized iron house has not been completely gutted by the fire, the crime
committed is still consummated arson. 22 It is enough that a portion thereof is shown to have
been destroyed. 23 Under Section 1 of the decree, the offense of simple arson committed is
punishable by prision mayor. The Court feels that the trial court should not have appreciated the
"special" aggravating circumstance, under Section 4(3) of the decree, of the offender having been
"motivated by spite or hatred towards the owner or occupant of the property burned." The
prosecution does not dispute the mauling of appellant by a son of Mario Alano just a few hours
before the incident. It would appear to us to be more of impulse, heat of anger or risen temper,
rather than real spite or hatred, that has impelled appellant to give vent to his wounded ego.
The prosecution tried to establish the actual amount of damage caused to the house through the
testimony of Joselito Arroyo, the owner's son, who apparently was only told by his sister that,
according to a carpenter, the repair of the house would cost some P500.00. The evidence, being
clearly hearsay, 24 may not be a basis for an award.
There being neither aggravating nor mitigating circumstances to consider, the prescribed penalty is
the medium period of prision mayor or from 8 years and 1 day to 10 years. Applying the
Indeterminate Sentence Law, the prison term that may be imposed on appellant is anywhere within
the range of prision correccional from 6 months and 1 day to 6 years, as minimum. up to anywhere
within the medium period of prision mayor from 8 years and 1 day to 10 years, as maximum.
WHEREFORE, the questioned decision finding appellant Edgar Gutierrez y Cortez guilty beyond
reasonable doubt of the crime of arson is AFFIRMED; however, the sentence imposed on him by the
court a quo is MODIFIED in that appellant should now instead suffer the indeterminate penalty of
imprisonment from a minimum of 2 years, 4 months and 1 day of prision correccional to a maximum
of 8 years and 1 day of prision mayor. The award made by the trial court of P500 by way of actual
damage in favor of Mario and/or Josefa Arroyo is deleted. Costs against appellant.
SO ORDERED.
Padilla, Bellosillo, Kapunan and Hermosisima, Jr., JJ., concur.
Footnotes
1 Rollo, p. 3.
2 TSN, 6 August 1990, p. 7.
3 TSN, 28 June 1990, p. 6.
4 TSN, 6 August 1990, p. 9.
5 TSN, 9 August 1990, p. 12.
6 TSN, 9 August 1990, p. 14.
7 Presided by Judge Antonio J. Fineza.
8 Rollo, pp. 29-30.
9 Rollo, p. 53.
10 People vs. Hidalgo & Gotengco, 102 Phil. 719.
11 People vs. Madlangbayan, 94 SCRA 679.
12 See: MORENO, PHILIPPINE LAW DICTIONARY, 3rd ed., p. 218 citing People vs. Bofil,
48 O.G. 3933 (per Justice J.B.L. Reyes).
13 People vs. Nimo, 227 SCRA 69.
14 Exhs. A & B, Record, pp. 42-43.
15 TSN, 6 August 1990, p. 3; Exh. 3, Record, p. 75.
16 People vs. Galanza, 227 SCRA 526.
17 People vs. Baligod, 227 SCRA 834.
18 Rollo, p. 56.
19 People vs. Arevalo, 214 SCRA 466.
20 See: Ilo vs. Court of Appeals, 108 Phil. 938; People vs. Silvestre, 56 Phil. 353; People vs.
Macalma, 44 Phil. 170.
21 P.D. No. 1744 issued on November 11, 1980 amends Arts. 320, 321 and 322 of the
Revised Penal Code and penalizes destructive arson with reclusion temporal in its maximum
period to death. However, since appellant was charged with violation of P.D. No. 1813, he
should be convicted and penalized under this decree otherwise his right to be informed of the
charge against him would be jeopardized.
22 See: U.S. vs. Valdez, 39 Phil. 240 on frustrated arson.
23 TSN, 28 June 1990, p. 5.
24 TSN, 6 August 1990, p. 17.

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-62439 October 23, 1984
GREGORY JAMES POZAR, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, respondent.
Macario C. Ofilada, Jr. for petitioner.
Gil Venerando R. Racho collaborating counsel for petitioner.
The Solicitor General for respondent.

GUERRERO, J.: ñé+.£ªwph!1

In an Information dated July 22, 1980 and filed with the City Court of Angeles City, Branch I,
docketed thereat as Criminal Case No. CAT-326, petitioner, an American citizen and a permanent
resident of the Philippines, was charged with the crime of Corruption of a Public Official, allegedly
committed as follows: têñ.£îhqw â£

That on or about the 17th day of December, 1979, in the City of Angeles, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, being
then an applicant for probation after he was convicted of an offense by a competent
court, did then and there willfully, unlawfully, and feloniously give to the complainant,
Mr. Danilo Ocampo, the City Probation Officer, the sum of P100.00 in a paper bill
with Serial Nos. BC530309, under circumstances that would make the said City
Probation Officer Mr. Danilo Ocampo liable for bribery.
ALL CONTRARY TO LAW.
Upon arraignment, petitioner pleaded not guilty to the said information and, after trial, the City Court
inits decision of May 15, 1981 found the petitioner guilty of the crime of corruption of a public official,
the dispositive portion of which reads: têñ.£îhqwâ£

WHEREFORE, the Court finds the accused Gregory Pozar guilty of the offense of
Corruption of a Public Official as charged in the Information, and the Court pursuant
to Article 212, in relation to Article 211 of the Revised Penal Code, hereby sentences
the accused Gregory James Pozar to an imprisonment of three (3) months and one
(1) day of Arresto Mayor, and hereby censures him for his actuation in this matter,
with costs against the accused.
The one hundred peso bill is hereby forfeited in favor of the Republic of the
Philippines.
SO ORDERED. 1äw phï1.ñët

The decision was appealed to the Court of Appeals (now In termediate Appellate Court) and
subsequently, the appellate court affirmed the same in toto. Petitioner's motion for reconsideration
was denied on October 19, 1982 and on December 21, 1982, petitioner filed the instant petition for
review of the decision of the respondent court, relying on the constitutional precept that "In all
criminal prosecutions, the accused shall be presumed innocent until the contrary is proved." (Article
IV, Sec. 19), and that the State, having the burden of establishing all the elements of the crime with
which the accused is charged, must prove the guilt of the accused beyond reasonable doubt, has
failed to present and establish the required quantum of proof against the accused petitioner, hence
he is entitled to an acquittal. .
The evidence for the prosecution are stated in the decision of the respondent court, thus: têñ.£îhqw â£

The prosecution presented as its witnesses Mr. Ricardo Manalo, Mrs. Primitiva
Francisco and Mr. Danilo Ocampo. Upon the other hand, the defense placed on the
witness stand appellant himself and his counsel Atty. Reynaldo Suarez.
Ricardo Manalo, Clerk at the Probation Office of Angeles City, declared that he
started working at the Probation Office since May 2, 1978 and came to know
appellant because the latter had gone to said office in connection with his application
for probation; that at about noontime of December 17, 1979, appellant came to the
office looking for Probation Officer Danilo Ocampo and since the latter was out at the
time, appellant gave him a closed envelope bearing the name of Ocampo for delivery
to the latter; that two days later, he gave the envelope to Ocampo who opened the
same in his presence; that the envelope contained some official papers connected
with appellant's application for probation and attached thereto was a hundred peso
bill; that Ocampo then remarked: 'This s something bad that the opening of the
envelope was done on December 19, 1979; that Ocampo kept the envelope and its
contents, including the one hundred peso bill, but within a week's time gave them to
him with instructions to give the same to appellant but the latter never came to the
office and so he returned them to Ocampo; that although he later saw appellant
about two weeks after December 17, 1979, when the latter came to the office to sign
some papers, he never mentioned to appellant the one hundred peso bill (pp. 2-16,
t.s.n., September 16, 1980)
Manalo further declared that at the nine the envelope with the one hundred peso bill
was given to him by appellant for delivery to Ocampo, he already had an inkling or
knowledge that the Probation Office will recommend for the grant of appellant's
application for probation because he was the one who makes the final typing of a
post, sentence investigation report and before said final typing Ocampo usually talks
to him, so that he knows whether the recommendation was for a grant or denial of an
application (pp. 16-19, t.s.n., September 16, 1980).
Mrs. Primitiva Francisco, Assistant Probation Officer of the Angeles City Probation
Office, declared that she knows appellant because the latter was one of the
applicants for probation in 1979 and she was the one assigned to investigate
appellant's case; that as Assistant Probation Officer in the Investigation of
applications for probation and in the case of appellant, she requested him to submit
certain pertinent documents required by their office, such as barangay, police and
court clearances, residence certificate, etc.; that she prepared appellant's post-
sentence Investigation Report (Exhs. "B" to "B-5") that she first saw appellant on
December 7, 1979, when she interviewed him on his social and personal history and
his version of the offense, among others; that she gave the list of documents which
are to be submitted to the office; that the second time she saw appellant was on
December 21, 1979 but appellant was out at the time and when she saw that he was
in his car that broke down in front of the Pampaguena she tried to can him but the
car left as she was about to reach the place (pp. 2-21, tsn, January 26, 1981).
Mrs. Francisco further declared that at the time she saw appellant on December 21,
1979, the latter was asking person to leave for Baguio City but she told him to talk
with Probation Officer, Mr. Ocampo, anent the matter; that she then prepared a draft
of the Post-Sentence Investigation report and thereafter had a conference with
Ocampo who told him not to delete the bribery incident from the report; that it was
first from Manalo and later from Ocampo that she became aware of the bribery or
more accurately corruption of a public official committed by appellant (pp. 21-25,
t.s.n., January 26, 1981).
The third prosecution witness was complaint himself Danilo Ocampo, who declared
that he has been the Probation Officer of an Angeles City, Probation Office since
1977 and that his employees thereat were Ricardo Manalo, Primitiva Francisco and
Ramon de Leon; that at about 9:00 o'clock in the morning of December 19, 1979, he
received a closed letter envelope from his clerk. Manalo, at the Probation Office at
Merlan Building, Angeles City, Manalo informing him that the same came from
appellant; that he opened the envelope on the presence of Manalo and found that
the same contained xerox copies of the passport (Exh. "D") and visa (Exh. "D-1") of
appellant and inserted with said documents. was a hundred peso bill with Serial No.
BC530309 (Exh. "A-l"); that the envelope given him by Manalo was addressed to him
Mr. Danilo Ocampo, Probation Officer, in handwritten for that he could not, however,
produce said envelope the same having been misplaced that he kept the one
hundred peso bill as the same was an evidence against appellant; that when he met
Atty. Reynaldo Suarez, appellant's counsel at the Angeles City Court on January 14,
1980, he told the latter about the envelope received from appellant containing the
passport, visa and the one hundred peso bill inserted with said documents and
intimated to the lawyer that the client should not have inserted said one hundred
peso bill (pp. 46-57, t.s.n. September 16, 1980).
Ocampo further declared that the Post-Sentence Investigation Report was prepared
by Mrs. Francisco who conducted the investigation; that the first time he saw
appellant was on December 10, 1979, when the latter was seeking permission to go
to Baguio City and being a foreigner, he required him to submit to his office copies of
the latter's passport and visa; that the second time he met appellant was in March,
1980, when the hearing of appellant's application for probation was conducted at
Branch I of the Angeles City Court; that he never required appellant to give money,
so that when he saw the one hundred peso bill (Exh. "A") in the envelope handed
him by Manalo, he was very much surprised; that he intended to confront appellant
but was unable to do so but was able to inform Atty. Suarez, appellant's lawyer,
about the matter when he met him at the City Court; that at the time the envelope
containing the documents and money was handed to him on, December 19, 1979,
the Post-Sentence Investigation Report was not yet finished and that the same was
submitted to the City Court by Mrs. Francisco on February 5, 1980; that the fact that
appellant enclosed a one hundred peso bill in the envelope was mentioned in said
report (pp. 60-73, t.s.n., September 16, 1980).
Ocampo further testified that at the time of the hearing of appellant's application or
petition for probation, the Presiding Judge of Branch I of the City Court held a
conference in the court's chamber with appellant's counsel the trial fiscal and himself,
during which they discussed the bribery incident mentioned in the report; that the
presiding judge of Branch I, after some clarifications regarding the incident in
question, suggested that coplainant should lodge a complaint against appellant and
the all should conduct the corresponding preliminary investigation to determine
whether there was a prima facie case (pp. 75-76, 82-86, t.s.n., September 16, 1980).
Finally, Ocampo declared that he approved the Post-Sentence Investigation Report
recommending the granting of appellant's application for probation, notwithstanding
the bribery or corruption incident mentioned in said report, because appellant's act
was not yet a disqualification under the law, as he was still presumed innocent until
he is found guilty by the court (pp. 90-91, t.s.n. December 8, 1980).
The appealed decision tersely cited the evidence for the defense in the following manner: têñ.£îhqw â£

The evidence for the defense is that the one hundred peso bill the accused-appellant
placed in the envelope delivered to the Probation Officer was allegedly intended to
take care of the expenses in the xerox copying or reproduction of documents that
may be needed by the Probation Office. (p. 7, CA Decision).
Considering that the findings of fact in the decision of the respondent court which affirmed the
decision of the trial court, do not mention nor indicate the circumstances surrounding the incident
and the filing of the information against the petitioner other than the admitted fact that the one
hundred peso bill was placed in the envelope together with the visa and passport of the petitioner
which he handed on December 17, 1979 to Mr. Ricardo Manalo and which the latter in turn handed
on December 19, 1979 to Probation Officer Danilo Ocampo, in fairness to the petitioner, We quote
hereunder the decision of the trial court which recited the said circumstances that led to the filing of
the Information against the petitioner, to wit:
têñ.£îhqwâ£

From the evidence presented, the following facts appear to the court to be
indubitable; That the accused was convicted of the crime of less Serious Physical
Injuries, and the crime of Oral Defamation of the City Court of Angeles City, Branch
1, and the said accused was sentenced to an imprisonment of 15 days of Arresto
Menor and to pay a fine of P50.00 and to pay the complaining witness the amount of
P500.00 as moral and exempt damages. After he was sentenced, he, on November
28, 1979 filed an Application for Probation. That after filing the application for
Probation, the accused, together with his lawyer Atty. Reynaldo Suarez, went to the
Probation Office purposely to inquire for the requirements need for his client's petition
for probation. Unfortunately, Atty. Suarez and his client did not reach the Probation
Officer Mr. Danilo Ocampo. It was Mr. Manalo, a clerk of the Probation Office, whom
they reached, and they were re. requested to come back to the office regarding their
inquiry inasmuch as the Probation Officer was not in the office. Later, Atty. Suarez
called through the telephone the Probation Office, and, on that occasion he was able
to talk with the Probation Inspector, Mrs. Primitiva Francisco. He was inquiring from
Mrs. Francisco the necessary documents regarding the application for probation of
his client and Mrs. Francisco suggested that he would come over the office in order
to give him all the necessary information. The lawyer just instructed Mrs. Francisco to
give a list of the requirements to Mr. Pozar, the accused, who was then in the, Office
of the Probation Officer, and accordingly, Mrs. Francisco handed to Mr. Pozar a list
of the documents needed in his probation (see Exhibit E for the prosecution, and
Exhibit 3 for the defense). It also appears that all the re. requirements listed in the list
given by Mrs, Francisco were given to Mrs. Francisco, and at times to Mr. Manalo.
The person who conducted the investigation was actually Mrs. Francisco. On
December 10, 1979, Pozar had an occasion to see the Probation Officer, Mr. Danilo
Ocampo, and in that meeting, aside from the fact that he was asking permission from
the Probation Officer to go to Baguio, the Probation Officer required him to furnish
the Probation Office the xerox copy of his visa, and his I.D. picture, inasmuch as it
was explained to him these were needed, he being a foreigner. On December 17,
1979 Mr. Pozar went to the Probation Office looking for the Probation Officer, and
when the Probation Officer was not there, he handed to Mr. Manalo an envelope
address to the Probation Of officer and asked and requested Mr. Manalo to give the
same to Mr. Ocampo. It was on December 19,1979 when Mr. Manalo handed the
envelope given by Mr. Pozar to Mr. Danilo Ocampo, and when Danilo Ocampo
opened it in the presence of Mr. Manalo, he found enclose in the envelope a xerox
copy of the applicant's passport, xerox copy of his visa, and attached also with the
same document was a one hundred peso bill It would seem that Mr. Ocampo asked
Mr. Manalo to keep the one hundred peso bill and return it to Mr. Pozar, but when
Mr. Pozar did not arrive to the office, Mr. Manalo gave it back to Mr. Ocampo Mr.
Danilo Ocampo kept the one hundred peso bill but made it a point that this incident
regarding the receiving of the one hundred peso being be included in the post-
sentence investigation report which was being prepared by Mrs. Francisco. At that
time when the one hundred peso bill was given, the post-sentence investigation
report was not yet finished. The record shows that the same was submitted to the
court only on February 8, 1980. At the hearing of the application for probation in
March 1980, when the Presiding Judge of City Court of Angeles City, Branch 1,
noted and saw from the report the alleged incident of the accused's giving the one
hundred peso bill he called for a conference and in that conference, he suggested
that the manner should be investigated by the Office of the City F'iscal Acting upon
such suggestion Danilo Ocampo formally filed an Information Sheet against the
accused Gregory Pozar (Exhibit 2). It is also a fact admitted by the defense that after
the one hundred peso bill was handed and the Probation Officer was not able to
return the same, he informed Atty. Suarez at the sala of City Court Branch II
sometime on January 14, 1980. (pages 8-9)
As stated earlier, petitioner was found guilty of the offense of Corruption of Public Official as defined
and penalized in the Revised Penn Code as follows: têñ.£îhqwâ£

Art. 212. Corruption of Public Officials. — The same penalties imposed upon the
officer corrupted, except those of disqualification and suspension, shall be imposed
upon any person who shall have made the offers or promises or given the gifts or
presents as described in the preceding articles.
The preceding Articles of the Revised Penal Code are Articles 210 and 211 which define and
penalize the offenses of direct bribery and indirect bribery, and they provide as follows: têñ.£îhqwâ£

Art. 210. Direct Bribery. — Any public officer who will agree to perform an act
constituting a crime, in connection with the performance of his official duties, in
consideration of any offer, promise, gift or present received by such officer,
personally or through the mediation of another, shag suffer the penalty of prision
correccional in its minimum and medium periods and a fine of not less than the value
of the gift and not more than three times such value, in addition to the penalty
corresponding to the crime agreed upon, ff the same shall have been committed.
If the gift was accepted by the officer in consideration of the execution of an act
which does not constitute a crime, and the officer executed said act, he shall suffer
the same penalty provided in the preceding paragraph, and if said shall not have
been accomplished, the officer shall suffer the penalties of arresto mayor in its
maximum period and a fine of not less than the value of the gift and not more than
twice such value,
If the object for which the gift was received or promised was to make the public
officer refrain from doing something which it was his official duty to do, he shall suffer
the penalties of arresto mayor in its medium and maximum periods and a fine not
less than the value of the gift and not more than three times such value.
In addition to the penalties provided in the preceding paragraphs, the culprit shall
suffer the penalty of special temporary disqualification.
The provisions contained in the preceding paragraphs shall be made applicable to
assessors, arbitrators, appraisal and claim commissioners, experts, or any other
persons performing public duties.
Art. 211. Indirect Bribery. — The penalties of arresto mayor, suspension in its
minimum and medium periods, and public censure shall be imposed upon any public
officer who shall accept gifts offered to him by reason of his office.
It is well to note and distinguish direct bribery from indirect bribery. In both crimes, the public officer
receives gift. While in direct bribery, there is an agreement between the public officer and the giver
of the gift or present, in indirect bribery, usually no such agreement exist. In direct bribery, the
offender agrees to perform or performs an act or refrains from doing something, because of the gift
or promise in indirect bribery, it is not necessary that the officer should do any particular act or even
promise to do an act, as it is enough that he accepts gifts offered to him by reason of his office. (The
Revised Penal Code by Luis P. Reyes, 1975 Ed., p. 332).
In the case at bar, We find that the Information against the petitioner charged that the accused "did
then and there willfully, unlawfully, and feloniously give to the complainant, Mr. Danilo Ocampo, the
City Probation Officer, the sum of one hundred (P100.00) pesos in a paper bill with serial No.
BC530309, under circumstances that would make the said City Probation Officer, Mr. Danilo
Ocampo, liable for bribery.
The trial court found the accused guilty of the offense of Corruption of a Public Official as charged in
the Information and pursuant to Article 212, in relation to Article 211 of the Revised Penal Code,
sentenced the accused to an imprisonment of three (3) months and one (1) day of arresto mayor
and public censure. This is erroneous. The trial court erred in finding the accused guilty of the crime
of Corruption of Public Official as consummated offense (which is affirmed by the respondent
appellant court) for it is clear from the evidence of the prosecution as recited in both decisions of the
trial and appellate courts, that the complainant Probation Officer did not accept the one hundred
peso bill Hence, the crime would be attempted corruption of a public official. (See The Revised
Penal Code by Justice Ramon Aquino, 1976 Ed., Vol. II, p. 1168, citing the cases of Uy Matiao, 1
Phil. 487; Camacan 7 Phil. 329; Tan Gee, 7 Phil. 738; SyGuikao 18 Phil. 482; Te Tong, 26 Phil. 453;
Ng Pek 81 Phil. 562; Ching, CA-G.R. No. 439-R, July 31, 1947). Attempted corruption of a public
official is punished with destierro and is cognizable by inferior courts (See Revised Penal Code by
justice Aquino, Vol. II, 1976 Ed., citing the cases of Uy Chin Hua v. Dinglasan, 86 Phil. 617; Santos y
Bautista, 87 PhiL 687; Dalao v. Geronimo, 92 Phil. 1942; Ng Pek 81 Phil. 562).
Be that as it may, the crucial point is whether the prosecution has established beyond reasonable
doubt that the one hundred peso bill was given to bribe and corrupt the City Probation Officer or that
it will be used to defray expenses in xeroxing or copying of whatever documents needed by the
Probation Office in connection with petitioner's application for probation then pending in said office.
The evidence on record disclose that the petitioner was required by the Assistant Probation Officer,
Primitive Francisco, to submit in connection with his probation application the Court Information (
complaint) Court decision, Custody Status (recognizance or bail bond), clearances from the Police,
the Court, Barangay Certificate, I.D. pictures (3 copies), residence certificate, and told to report once
a week on Mondays. (Exhibit "E"). This was on December 7, 1979.
Aside from these documents, the Probation Officer required of the petitioner on December 10, 1979
when the latter was asking permission to go to Baguio to submit to the office a copy of his visa and
passport. Mrs. Francisco to testified that the petitioner was asking permission from her to leave for
Baguio. And according to the petitioner, "during all the time he was applying for probation, he made
more or less 12 visits in the office as he was directed to report every Monday at 10:00 o'clock in the
morning. He reported for 6 to 7 consecutive weeks and there were times that he went there
unscheduled for conference and clarification of the various re. requirements he needed. During all
the time he went there, he met Manalo, Mrs. Francisco and Mr. Ocampo himself. Mrs. Francisco and
Mr. Ocampo interviewed him He submitted all the requirements to the Probation Officer; at times, he
submitted them directly to Mrs. Francisco, and at other times to Mr. Manalo, and also to Mr.
Ocampo. Other than those listed in the list given by Mrs. Francisco, he was required to submit xerox
copy of his passport, his visa and his pictures. He explained that he gave the requirements to the
person who was interviewing him, primarily Mrs. Francisco, of the documents needed. Later, he
submitted to the office xerox copy of the original He likewise submitted his two passports, and later
xerox copy of his passports. When Mrs. Francisco was asking for the original, which documents are
in the possession of his lawyer at his office, he had to return to get the originals." (Decision of Trial
Court, p. 5). Petitioner's travail is, therefore, quite evident.
From the foregoing, We can fairly deduce that the procedure for processing petitioner's application
for probation in the Probation Office at Angeles City was not precise, explicit and clear cut And since
the accused petitioner is a foreigner and quite unfamiliar with probation rules and procedures, there
is reason to conclude that petitioner was befuddled, if not confused so that his act of providing and
advancing the expenses for whatever documentation was needed further to complete and thus
hasten his probation application, was understandably innocent and not criminal.
In fine, the facts and circumstances on record amply justify and support the claim of the defense as
against the conjectures, speculation and supposition recited in the decision of the trial court and
quoted with approval in the appealed decision under review. The Government's own evidence as
indicated in the Post-Sentence Investigation Report that the giving of the one hundred pesos (
P100.00) was done in good faith, is vital for it belies petitioner's criminal intent. There being no
criminal intent to corrupt the Probation Officer, the accused petitioner is entitled to acquittal of the
crime charged. We hold and rule that the prosecution has not proved the guilt of the accused beyond
reasonable doubt. There is not that moral certainty required to convict him. Even the complainant
himself, the Probation Officer, filed the complaint only on the suggestion of the presiding judge of the
Angeles City Court during the hearing on petitioner's application for probation, the complaint having
been filed in the City Fiscal's Office on June 10, 1980 after a lapse and delay of six (6) months.
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the judgment appealed from is hereby
REVERSED. The accused petitioner is hereby ACQUITTED. No costs.
SO ORDERED. 1äw phï1.ñët

Concepcion, Jr., Escolin and Cuevas, JJ., concur.


Aquino, J., concurs in the result.
Abad Santos, J., took no part.
MAKASIAR, J., dissenting:
1. As stated by the Solicitor General the pretension of the petitioner that he was confused with
respect to the requirements and/or processing of his application for probation pending before the
complaining witness Probation Officer Danilo Ocampo of Angeles City, is incredible. As early as
December 7, 1979, about ten (10) days before December 17, 1979 (the delivery of the P100 peso
bill inside a closed letter envelope petitioner was already interviewed by Mrs. Primitiva Francisco,
Assistant Probation Officer of the Probation Office of Angeles City, who gave him the list of
documents to be submitted to the office. Hence, petitioner already knew then what papers were
required of hint
2. His claim that the P100 peso bill contained in the aforesaid closed letter envelope was for xerox
copies of other documents that may be required of him by the Probation Office, is belied by the
aforesaid fact that as early as December 7, 1979, Assistant Probation Officer Francisco already
gave him the list of documents that he should submit to the Probation Office, and that on December
10, 1979, Probation Officer Ocampo also required him to submit xerox copies only of his passport
and visa as he was a foreigner, in connection with his request for permission to go to Baguio City.
3. If, as he alleged, the P100 bill was intended for xerox copies of other documents that may be
required of him, he should have, as stated by the Solicitor General in his comment and
memorandum, given the same to the clerk Ricardo Manalo of the Probation Office, with instructions
that the same should cover whatever xerox copies of other documents may be needed. Or he should
have attached or clipped the P100 bill to a note addressed to Probation Officer Ocampo that the said
money is to cover expenses for xerox copies of other documents that may be required of him.
4. Petitioner could have just given the P100 bill to his lawyer, Atty. Reynaldo Suarez, with
instructions that the same should be paid for whatever xerox copies of other documents that may be
required of him in connection with his application for probation.
5. Petitioner saw Assistant Probation Officer Francisco on December 21, 1979; but on said date
petitioner did not bother to ask either Assistant Probation Officer Francisco on December 21, 1979;
but on said date petitioner did not bother to ask either Assistant Probation Officer Francisco or the
Probation Clerk Ricardo Manalo, whether the P100 bill was spent for xerox copies of other
documents. He went there that day, December 21, 1979, precisely to reiterate his request for
permission to leave for Baguio City and Assistant Probation Officer Francisco advised him to talk to
Probation Officer Ocampo whom he did not even try to see that day, December 21, 1979.
6. Petitioner could not presume that his application for probation would be favorably acted upon
because he was still then being subjected to an investigation by Assistant Probation petition Officer
Francisco who submitted her post-sentence report to the City Court only on February 5, 1980. Said
report included the statement about the bribe money. Probation Officer Ocampo had to recommend
in March, 1980 approval of petitioner's application for probation; because at that time he had not yet
filed the complaint with the City Fiscal's Office for corruption of public officer against petitioner who,
as stressed by Probation Officer Ocampo, was presumed innocent until adjudged guilty of such
corruption,
Hence, the conviction of petitioner should be affirmed but only for attempted corruption of a public
officer, because Probation officer Ocampo did not accept the money; otherwise, said probation
officer would be equally guilty as the corruptor.

EN BANC
G.R. No. L-1895 October 2, 1948
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. NG
PEK,Defendant-Appellant.
Koh, Aguilar and Koh for appellant.
Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Jose
P. Alejandro for appellee
OZAETA, J.: chanrobles vi rtua l law lib rary

In the Court of First Instance of Manila appellant was accused of,


and pleaded guilty to, attempted bribery. Forthwith he was
sentenced to suffer two months and one day of arresto mayor and
to pay a fine of P3, with subsidiary imprisonment in case of
insolvency, and to pay the costs. chanroblesv irtualawli bra ry chanrob les vi rtual law lib rary

From that sentence he appealed to this Court, contending that (1)


"the lower court erred in considering that the statement given by
the accused during his arraignment to the complaining witness is a
manifestation or a declaration of a plea of guilty," and (2) "the
lower court erred in forthwith sentencing that accused to a prison
term of two months and one day and to pay a fine of P3 on the day
of the arraignment, without giving him a chance to defend
himself.chanroble svi rtualaw lib rary cha nrob les vi rtual law lib rary

Appellant's first assignment of error is promised upon allegations of


fact which were not proven during the trial and do not appear in the
record before us. We cannot sustain an assignment error based on
such allegations. chanroble svirtual awlibra ry chan robles v irt ual law l ibra ry

The record shows that when the case was called for the arraignment
of the accused on November 3, 1947, the accused waived his right
to be assisted by counsel and then and there entered the plea of
guilty. That plea necessarily foreclosed the right of the accused to
defend himself and left the court with no other alternative than to
impose the penalty prescribed by law. Therefore the second
assignment of error is also devoid of merit. chanroblesv irt ualawli bra ry chan robles v irt ual law l ibra ry

The only questions for us to determine in this appeal are (1) the
nature of the crime committed and (2) the propriety of the penalty
imposed. chanroble svirtualawl ibra ry chan roble s virtual law lib rary

1. The offense charged in the information falls under article 212 of


the Revised Penal Code, entitled "Corruption of Public Officials," in
relation to the third paragraph of article 210 of the same Code. The
trial court found the accused guilty of the crime charged in the
information which, according to the contention of the Solicitor
General, is frustrated corruption of a public official. We note,
however, that the penalty imposed by the trial court corresponds to
that of consummated corruption of a public official, as penalized in
article 212, in relation to the third paragraph of article 210, of the
Revised Penal Code. Was the crime alleged in the information
attempted, frustrated, or consummated? chanrobles vi rtua l law lib ra ry

The information charged the appellant with attempted bribery,


alleging that on September 23, 1947, in the city of Manila, he
wilfully, unlawfully, and feloniously did offer and deliver the amount
of one peso to Patrolman M. Garcia in order to dissuade him from
complying with his duty of arresting said accused for a violation of
City Ordinance No. 2646 and filing charges against him, adding,
however (using the language of article 6 of the Revised Penal Code,
which defines an attempt to commit a felony), that "the said
accused did not perform all the acts of execution which should have
produced the crime of bribery as a consequence by reason of a
cause other than his own voluntary desistance, that is, because the
said police officer did not allow himself to be corrupted. This
additional allegation seems to contradict the main allegation that
the accused offered and delivered the money to the police officer.
Be that as it may, assuming that the accused really offered and
delivered the money to the police officer, there is no question that
the latter refused to be corrupted. In similar cases this court has
repeatedly held the crime to be attempted. (U. S. vs. Paua, 6 Phil.,
740; U. S. vs. Camacan, 7 Phil., 329; U. S. vs. Tan Gee, 7 Phil.,
738; U. S. vs. Sy-Suikao, 18 Phil., 482; and U. S. vs. Te Tong, 26
Phil., 453.).
chanroblesvi rtua lawlib rary cha nro bles vi rtua l law lib ra ry

In the last of the cases herein cited, it appears that the accused Te
Tong offered and delivered P500 to a police officer in consideration
of the latter's agreeing to deliver to the Chinaman certain books,
which the police officer had seized from him and which showed that
he was guilty of playing the prohibited game of jueteng, and to
substitute said books with others fraudulently concocted for the
purpose. Immediately after the delivery and substitution of the
books and the receipt of P500, the police officer arrested the
Chinaman. The court said that the only question was whether the
crime was attempted, frustrated, or consummated bribery.
Following the previous cases above cited, which involved similar
facts, the court held that "while there is some authority to the
contrary, we are of the opinion that we should follow the
substantially uniform holding of this court which declares the crime
to be attempted bribery. chan rob lesvi rtualaw lib rary cha nrob les vi rtua l law lib rary

We do not feel inclined to disturb that ruling in this case in the


absence of compelling reasons and in view of the ambiguity of the
information to which the herein appellant pleaded guilty, which
ambiguity should be resolved in his favor. We therefore hold that
the crime committed was attempted corruption of a public
official.
c han roblesv irt ualawli bra ry chan roble s virtual law l ibra ry

2. The penalty prescribe in the third paragraph of article 210, in


relation to article 212, of the Revised Penal Code for
the consummated crime of corruption of a public official is arresto
mayor in its medium and maximum periods and a fine of not less
than the value of the gift and not more than three times such value.
In accordance with article 51 of the Revised Penal Code, a penalty
lower by two degrees than that prescribed by law for the
consummated felony should be imposed upon the principal in an
attempt to commit a felony. Two degrees lower than arresto
mayorin its medium and maximum periods is destierro in its
minimum and medium periods.(Article 71, Revised Penal Code, as
amended by section 3 of Commonwealth Act No. 217.). chanroble svi rtualaw lib rary chan rob les vi rtual law lib rary

Conformably to articles 27 (paragraph 4) and 87 of the Revised


Penal Code, the accused-appellant should be as he is hereby
sentenced to suffer six months and one day of destierro or
banishment, during which period he shall not be permitted to enter
or to be in any place within the radius of twenty-five kilometers
from his present place of residence, 419 T. Pinpin, Manila. As thus
modified, the sentence appealed from is affirmed in all respects,
with costs. So ordered.
Moran, C.J., Paras, Pablo, Perfecto, Bengzon, Briones, Tuason, and
Montemayor, JJ., concur.