Tabuena v.

Sandiganbayan, GR 103501-03, 2/17/97

Main Point: To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a
criminal intent, or by such negligence or indifference to duty or to consequences as, in law, is equivalent to criminal
intent. The maxim is actus non facit reum, nisi mens sit rea - a crime is not committed if the mind of the person
performing the act complained of is innocent. 1. Good faith in the payment of public funds relieves a public officer
from the crime of malversation. 2. Compliance to a patently lawful order is rectitude far better than contumacious
disobedience. In the case at bench, the order emanated from the Office of the President and bears the signature of the
President himself, the highest official of the land.

Facts: Manila International Airport Authority (MIAA) owes the Philippine National Construction Corporation
(PNCC) P99.1 million for the construction of the MIA. The accused are Luis A. Tabuena and Adolfo M. Peralta, all
public officers, being then the General Manager and Acting Manager of MIAA and accountable for public funds
belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA
pursuant to its board resolutions.

Then President Marcos ordered Tabuena over the phone to withdraw P55million from MIAA’s accounts with PNB as
partial payment to PNCC. Tabuena obeyed and a Presidential Memorandum reiterating in black and white such verbal
instruction was issued. Three withdrawals were made in three different occasions. First withdrawal was for the amount
of 25 million, second was for 25 million, and third was for 5 million. After the manager’s check was issued and
encashed, the money was delivered to Mrs. Gimenez, presidential secretary of Marcos. The disbursement of the P55
Million was out of the ordinary and not based on the normal procedure. Not only were there no vouchers prepared to
support the disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt for the P55 Million was
presented.

The Sandiganbayan made the finding that Tabuena and Peralta had already converted and misappropriated the P55
Million when he delivered the same to Mrs. Gimenez and not to the PNCC, proceeding from the following
definitions/concepts of conversion: Conversion, as necessary element of offense of embezzlement, being the fraudulent
appropriation to ones own use of another’s property which does not necessarily mean to ones personal advantage but
every attempt by one person to dispose of the goods of another without right as if they were his own is conversion to
his own use.

Both accused were found guilty beyond reasonable doubt. Tabuena and Peralta filed separate petitions for review,
raising the defense of good faith and obedience to a lawful order.

Issue: Whether the petitioners can raise the defense of good faith and obedience of a lawful order, given the fact that it
was the President himself who gave such order

Ruling: Yes. Tabuena and Peralta were acquitted. First. Tabuena had no other choice but to make the withdrawals, for
that was what the MARCOS Memorandum required him to do. He could not be faulted if he had to obey and strictly
comply with the presidential directive, and to argue otherwise is something easier said than done. Marcos was
undeniably Tabuena’s superior the former being then the President who unquestionably exercised control over
government agencies such as the MIAA and PNCC. Tabuena therefore is entitled to the justifying circumstance of Any
person who acts in obedience to an order issued by a superior for some lawful purpose.

Second. There is no denying that the disbursement, which Tabuena admitted as out of the ordinary But this deviation
was inevitable under the circumstances Tabuena was in. He did not have the luxury of time to observe all auditing
procedures of disbursement considering the fact that the MARCOS Memorandum enjoined his immediate compliance
with the directive that he forward to the Presidents Office the P55 Million in cash. Be that as it may, Tabuena surely
cannot escape responsibility for such omission. But since he was acting in good faith, his liability should only be
administrative or civil in nature, and not criminal.