G.R. No. 209373 July 30, 2014
Ulysses Lagcao,
JOEL YONGCO and JULIETO LAÑOJAN vs.
PEOPLE OF THE PHILIPPINES, Respondent.
The Case
This treats of the consolidated Petitions for Review on
Certiorari under Rule 45 in relation to Rule 125 of the Rules of
Court, assailing the Decision1 and Resolution of the Court of
Appeals (CA) in CA-G.R. CR No. 00549-MIN, dated January
21, 2013 and September 10, 2013, respectively. Said rulings
affirmed the Regional Trial Court (RTC) Decision convicting
petitioners of qualified theft.
The Facts
Petitioners Joel Yongco, Julieta Lafiojan, and Anecito Tangian,
Jr. were employees of the City Government of Iligan. Tangian
worked as a garbage truck driver for the city, while Yongco and
Lañojanwere security guards assigned to protect the premises
of the City Engineer’s Office (CEO). On November 14, 2005,
an Information was filed before the RTC, Branch 5 in Iligan
City, Lanao del Norte charging the three with Qualified Theft.
The information docketed as Crim. Case No. 12092 reads:
That on or about April 16, 2005, in the City of Ilagan,
Philippines, and within the jurisdiction of this Honorable Court,
the said accused, being then regular and casual employees of
the City government as drivers and helpers respectively, of a
garbage truck with Plate No. 496, conspiring and confederating
togetherand mutually helping each other, with grave abuse of
confidence reposed upon them by the city government, and
with intent to gain, did then and there willfully, unlawfully and
feloniously take, steal and carry away the following articles, to
wit: one (1) unit transmission, boom, differential of Tamaraw
and l-beam of Nissan with a total value of ₱40,000.00,
belonging to the City government of Ilagan, represented by
Atty. Rommel Abragan of the City Legal Office, Iligan City,
withoutthe consent and against the will of the said owner in the
aforesaid sum of ₱40,000.00, Philippine Currency.2
During the arraignment held on February 16, 2006, accused
petitioners entered a plea of not guilty tothe offense charged.
Pre-trial was then conducted and closed on July 25, 2006.
Thereafter, trial on the merits ensued.
Version of the Prosecution
The prosecution presented as one ofits witnesses a casual
employee of the city government, Pablo Salosod,who testified
that on April 16, 2005 at around 1:30 a.m., while attending a
wake at the Cosmopolitan Funeral Parlor, he was fetched and
requestedby petitioner Tangian to accompany him to the CEO.
At the office garage, Salosod and his fellow garbage collectors
were allegedly directed by petitioners Tangian and Yongco to
load car parts that petitioners considered aswaste items, the
subject items of the theft, on the truck driven by Tangian. They
then drove to Tominobo, Iligan City where the materials were
unloaded in front of Delfin Junk Store, and before the truck left
the shop, Salosod allegedly saw petitioner Lañojan giving a
thumbs-up sign to Tangian. On the way back, Tangian
allegedly confessed to Salosod that it was Lañojan who
requested that the items be brought at the junk shop. Another
employee, Rommel Ocaonilla, corroborated the testimony of
Salosod.
Prosecution witness Oliveros Garcia meanwhile testified
witnessing the unloading of the items in front of the junk store,
after which, Lañojan covered the items up with a sack. The
following morning, he allegedly saw Lañojan’s brother-in-law,
who coincidentally works at the shop, take the items inside.
Witnesses Dioscoro Galorio and Atty.
employee and consultant of the city government, respectively,
testified that they conducted investigations relative to the
incidentand found out that the items stolen consisted of one
Nissan transmission,one unit boom, one Nissan I-beam, and
one differential of Tamaraw, with total valuation of PhP 12,000.
Upon their investigation, they recommended tothe city legal
officer the filing of the present criminal case against the three
petitioners.
Version of the Defense
In defense, petitioners testified intheir behalves. Their
testimony is summarized by the CA in the Decision now on
appeal in the following wise:
Joel Yongco, 34, single, x x x and a casual employee, testified
that, on August 9, 2004, he was issued a Job Order and
detailed at the Civil Security Unit (CSU). He was assigned to
guard the building installation of the CEO. On April 15, 2005,
he was on duty with his companion, one Mr. Quintana. They
relieved Lañojan and one Mr. Enumerables. Lañojan gave him
(Yongco) four gate passes and saidthat the area would have to
be cleared because the "Bacod" Iliganvehicle would be
arriving. Yongco read the entries on one of[the] gate passes.
Theyread: "Loaded assorted scraps with remark to be thrown
atthe dump site." At the bottom of the gate pass was the "note"
of EngineerCabahug with the signatures of the guards,
Lañojan and Enumerables. From 5:00 PM to 12:00 midnight on
April 15, 2005, there was only one shipment of scrap iron to
the dump site. The dump truck driven by Tangian entered the
CEO premises at around 11:00 o’clock in the evening of the
same date. Tangian went to the yard where the scrap iron
were situated and asked Yongco to accompany and help him.
Tangian gathered the scrap materials and the four of them
(Tangian, Yongco, and the 2 helpers of Tangian) loaded the
said scrap to the dump truck. At around 12:45 P.M., after
loading the items, Tangian drove away without giving a gate
pass to the guards on duty. Yongco did not ask Tangian for a
gate pass because Yongco had one companion in the guard
house to get the gate pass.
Julieto Lañojan, 48, who was working in the CSU division for
20 years and assigned to guard the CEO, testified that he was
not on duty on April 15 and 16, 2005; he was on duty on April
14, 2005 at 7:00 A.M. up to April 15, 2005 of the same time.
When Yongco and Quintana relieved him on April 15, 2005 at
7:00 in the morning, he gave the four gate passes which were
used to ship outassorted scrap irons to them to be kept for the
file. Engineer Cabahug was the one who directed the removal
of the scrap iron because the area of the CEO would have to
be cleared since new trucks for the government were coming.
His house, which was along the national highway, was about
40-50 metersaway from Delfin Junk Store. He knew Oliveros
Garcia who was a kagawad of Tominobo, Iligan City. Aside
from that, Garcia had filed an ejectment case against him
(Lañojan), which was still pending in court.
xxxx
Anecito Tangian, Jr., 59, garbage truck driver at the City
Engineer’s Office for 16 years, testified that his highest level of
educational attainment was Grade I. It was his tour of duty on
April 15, 2005 at 9:00 o’clock in the evening up to April 16,
2005 at 6:00 o’clock in the morning. At around 5:30 in the
morning of April 15, 2005, Lañojan asked him to load scrap
materials onto the garbage truck and to bring them to the
Delfin Junk Store in Tominobo. He asked Lañojan if there were
any problems about the loading ofthe said items. Lañojan
answered that there were no problems about the loading of the
same, that the City Garbage would have to be cleared
considering that "BACOD" trucks would be arriving at thatarea.
He followed Lañojan because the latter was the guard at the
City Garage. When hearrived for duty at the City Garage at
around 9:00 in the evening, Yongco asked him if Lañojan
already informed him about the loading of the items. After that
he checked up the garbage truck while Yongco and the two
helpers were loading the items. He did not know how many
items were loaded because he only helped the three of them
during the loading of the differential. After loading the scrap
materials, Tangian and the two helpers drove away from the
City Garage. They dropped by the Cosmo Funeral Homes for
more than an hour before they proceeded to Tominobo. When
they reached Delfin Junk Store, Lañojan gave a thumbs-up
sign to Tangian, which meant okay. He then left and started his
work collecting garbage.3
Ruling of the Regional Trial Court
On April 11, 2008, the RTC held petitioners liable for qualified
theft via conspiracy. The dispositive portion of the Decision
reads:
WHEREFORE, premises considered, the Court finds the
accused Julieto Lañojan, Anecito Tangian, Jr., and Joel
Yongco GUILTY beyond reasonable doubt of the crime of
Qualified Theft defined and penalized under Article 310 in
relation to Article 309 of the Revised Penal Code, and the said
accused are hereby sentencedto a penalty of imprisonment of
six (6) years, eight (8) monthsand twenty (20) days of prision
correccionalmaximum as the minimum term, to ten (10) years
and eight (8) months of prision mayormaximum, as the
maximum term, of their indeterminate sentence including the
accessory penalties thereof.
SO ORDERED.4
Aggrieved, petitioners, in their appeal, prayed that the CA
reverse the RTC Decision. Petitioner Tangian reiterated in his
Brief that he should not be considered as a conspirator since
he merely innocentlyobeyed Lañojan’s instructions on the
assumption that the latter was his superior and that Lañojan
was authorized to get rid of the scrap materials in the CEO
premises and that he had no criminal intent whatsoever.
In their joint brief, Yongco and Lañojan also disclaimed the
existence of a conspiracy. Yongco, in his defense, argued that
Tangian and his two other helpers asked for his assistance
which he extended ingood faith, in view of Lañojan’s statement
earlier that day that the office garage has to be cleared.
Lañojan, on the other hand, insisted that he cannot be
considered as a conspirator since he was not present at the
time of taking, and that the mere giving of a thumbs-up sign to
Tangian when the latter delivered the materials to the junk
shop does not amount to conspiracy.
Ruling of the Court of Appeals
On January 21, 2013, the CA issued the assailed Decision
denying petitioners’ appeals. In affirming the RTC Decision in
toto, the CA ruled that there was indeed conspiracy because
Tangian could nothave taken out the items without a gate
pass, but with the security guard Yongco’s participation, he
was able to do justthat. The CA also ruled that it is implausible
that Tangian would just leave the items in front of the junk shop
unattended. Thus, the appellate court appreciated the
testimonies of the prosecution witnesses that Lañojan’s
presence was not merely coincidental and that his thumbs-up
and his subsequent act of covering the materials with sacks
indicate that the plan was for him to receive the said items.
Petitioners, via motion for reconsideration, sought the CA’s
reversal of the Decision only for the appellate court to deny the
same through its challenged Resolution dated September 10,
2013.
Not contented with the adverted Decision of the CA as
reiterated in the Resolution, petitioners Yongco and Lañojan
jointly filed a Petition for Review on Certiorari while petitioner
Tangian separately filed his own.1âwphi1 The two petitions
were later consolidated by this Court for resolution herein.
The Issue
As with most criminal cases, the main issue in the instant case
is whether or not the CA erred in sustaining petitioners’
conviction. Central to resolving this issue is determining
whether or not there indeed existed conspiracy between
petitioners in committing the offense charged.
The Court’s Ruling
The petitions are bereft of merit.
Article 310, in relation to Art. 308,of the Revised Penal Code
(RPC) defines Qualified Theft, thusly:
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 latter’s 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
objects of the damage caused by him; and
3. Any person who shall enter an enclosed estate or a field
where trespass is forbidden or which belongs to another and
without the consent of its owner, shall hunt or fishupon the
same or shall gather fruits, cereals, or other forestor farm
products.
xxxx
ART. 310. Qualified Theft.—The crime of theft shall be
punished by the penalties next higher by two degrees than
those respectively specified in the next preceding article, 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 a plantation, fishtaken from a fishpond or fishery or
if property is taken on the occasion of fire, earthquake,
typhoon, volcanic eruption, or any other calamity, vehicular
accident or civil disturbance. (emphasis added)
Synthesizing the foregoing provisions, the elements of
Qualified Theft, committed with grave abuse of discretion, can
simply be enumerated as follows:
1. Taking of personal property;
2. That the said property belongs to another;
3. That the said taking be done with intent to gain;
4. That it be done without the owner’s consent;
5. That it be accomplished without the use of violence or
intimidation against persons, nor of force upon things; and
6. That it be done with grave abuse of confidence.5
As correctly observed by the appellatecourt, all of the elements
of Qualified Theft are present in this case, viz:
There is no dispute that the items (transmission, boom arm,
differential assembly, and I-beam) which are the subject matter
of this case belong to the CEO of Iligan City.1âwphi1 There is
no dispute that these items, although considered "heap of
scrap," have not yet been declared unserviceable or waste by
the proper authority or office. Nor have they been marked for
proper disposal. Unless properly disposed in accordance with
Section 379 of the Local Government Code, these items are
still government properties or owned by the City of Iligan.
There is also no dispute that these items were taken away
from the CEO and were already under completeand effective
control of the persons taking the same. This is because these
items were loaded onto the garbage truck driven by Tangian
and brought to Tominobo at the Delfin Junk Store.
Apparently, the taking of these items was without the consent
of the CEO of Iligan City because there was no gate pass
issued to that effect. Evidence shows that when the garbage
truck left the premises of the CEO, no gate pass was
surrendered by Tangian. Yongco did not bother to ask for a
gate pass on the pretext that there was another guard on duty
at the gate.
Intent to gain or animus lucrandiis an internal act that is
presumed from the unlawful taking by the offender of the thing
subject to asportation. Actual gain is irrelevant as the important
consideration is the intent to gain. Since these items
werebrought to the junk store, intent to gain becomes obvious.
The presumption of animus lucrandihas not been overturned.
It is equally patent that the taking of these items was done with
grave abuse of confidence. The accused in this case, itbears
stressing, were guards and drivers with access tothe entrance
and exit of the CEO premises. In other words,they enjoyed the
trust and confidence reposed on them by their employer (the
City ofIligan) to haveaccess throughout the CEO premises on
account of their respective duties. More so since the primary
function of the CSU is to guard the properties, including the
said items, of the CEO. It was this trust and confidence that
was gravely abused by them that makes the theft qualified.6
Concisely stated, the fact of taking without consent is
indubitable. Indeed, petitioners hinge their plea for acquittal
and supporting argument primarily on their lack of criminal
intent and the observed conspiracy.
Addressing the issue head on, We uphold the findings of the
appellate court. No error can be ascribed to the CA when it
determined the existence of conspiracy between and among
petitioners in this case.
There is conspiracy when two or more persons come to an
agreement concerning a felony and decide to commit it.7 Well- participation.13 The guilt of one is the guilt of all. It is common
settled is the rule that in conspiracy, direct proof of a
previousagreement is not necessary as it may be deduced
from the mode, method, and manner by which the offense was leading to the same unlawful result. The character and effect of
perpetrated.8 It may be inferred from the acts of the accused
before, during, or after the commission of the crime which,
when taken together, would be enough to reveal a community
of criminaldesign, as the proof of conspiracy is frequently made innocent acts.14 Applying this doctrine in the case at bench, it
by evidenceof a chain of circumstances.9
In the case at bar, even though there is no showing of a prior
agreement among the accused, their separate acts taken and
viewed together are actually connected and
complementedeach other indicating a unity of criminal design
and purpose.10
Tangian’s complicity in the illicit deedwas manifest from the
fact, as he himself admitted, that he was the one who
personally transported the stolen items from the CEO to the
junkshop. His claim that he was not aware of any irregularity in
the act he performed is rendered dubious by his 16 years of
service as truck driver for the City of Iligan. To be sure, his
record of service argues against his claim of ignorance of the
standard protocol that a gate pass to be issued by the CEO
property custodian should first be secured before taking out
items from the CEO compound, including alleged waste
materials. He should also know better than to assume that
Lañojan can authorize the withdrawal of items without the
requisite gate pass since Lañojan’s duty, as security guard, is
precisely to prevent the same.
Similarly, Yongco’s claim of good faith is belied by his own
admission that he knew of the office procedure that a gate
pass is required every time something is taken out of the CEO
premises. In fact, four gate passes were given to him that
morning by Lañojan, covering waste materials withdrawn
during the latter’s shift. At the very least, this should have
reminded him of his duty to demand a gate pass for property
leaving the CEO premises. Neither memory lapses orlapses in
the performance of his duty will explain Yongco’s failure to
demand a gate pass.The only viable explanation is that he was
in connivance with other petitioners.11
Lastly, the RTC, with valid reason, tagged Lañojan as having
instigated and marshalled the entire scheme. To quote the trial
court:
x x x As shown above, it appears that Lañojan broached the
idea to Yongco that the items subject of this case will be
withdrawn under the pretext of clearing the CEO scrap yard of
unserviceable waste materials. Then Lañojan gave Yongco 4
gate passes apparently to be used to coverup or camouflage
the actual withdrawallater that evening. Then Lañojan told
Tangian to load the items under the same ploy of clearing the
scrap yard of unserviceable waste materials and that they will
not encounter any problem. Finally, Lañojan was seen by Brgy.
Kag. Oliveros Garcia at 1:30 o’clock in the morning of April 16,
2005 receiving the items as they were dumped near the Delfin
Junk Store,Tominobo, Iligan City. After the items were
dumped, Lañojan then gave Tangian the "thumbs-up" sign,
meaning everything is okay – clear proof of meeting of minds
between Tangian and Lañojan, and their collusion to steal the
items under the pretext of disposing unserviceable waste
materials. This non-verbal "thumbs-up" sign was also seenby
the truck helper Salosod.12 x x x
In conspiracy, the act of one is the act of all. Once conspiracy
is established, all the conspirators are answerable as co-
principals regardless of the extent or degree of their
design which is the essence of conspiracy—conspirators may
act separately or together in different manners but always
conspiracy are not to be adjudged by dismembering it and
viewing its separate parts but only by looking at it as a whole—
acts done to giveeffect to conspiracy may be, in fact, wholly
can reasonably be concluded that despite Lañojan’s lack of
physical participation in hauling the items to Tangian’s truck
and bringing them to the junk shop, he can still be liable for
Qualified Theft via conspiracy. All told, there is no cogent
reason for us todisturb the findings of the appellate court,
affirmatory of those of the trial court.
 a crime is not commited if the mind of the person performing
WHEREFORE, premises considered, the consolidated the actcomplained of is innocent (malversation cases: US v.
petitions are hereby DENIED for lack of merit. The CA's Catolico, US v. Elvina).
January 21, 2013 Decision and September 10, 2013 3. The Court, based on the evidence presented, found that
Resolution in CA-G.R. CR No. 00549-MIN are hereby Tabuena had no other choice but to actually follow the order
AFFIRMED. stated in the Marcos Memorandum, because, aspresident of
the Philippines, indubitably the head of governmental agencies
SO ORDERED. such as theMIAA and PNCC, Marcos is undeniably the
superior of Tabuena.
CASE DIGEST ON TABUENA v.SANDIGANBAYAN [121 4. Tabuena entitled to the justifying circumstance of ―any
SCRA 389 (1983)] person who acts inobedience to an order issued by a superior
November 10, 2010Facts:? In a Presidential Memorandum (the for some lawful purpose‖ because he is only
Marcos Memorandum) dated Jan. 6, 1986,President Marcos acting in good faith, faithfully and efficiently carrying out orders
allegedly commanded petitioner Tabuena, in his capacity as from the highest officialin the land. Moreover, there was
General nothing in the Marcos Memorandum that may invitesuspicion
Manager of the Manila International Airport Authority (MIAA), –
―to pay immediately the there was no question about the lawfulness of the order
Philippine National Construction Corporation, thru this Office contained in such amemorandum. Tabuena had reason to
(Office of the President), believe that the 55M was indeed part of a dueand demandable
the sum P55M in cash as partial payment of MIAA’s a debt, a portion of a bigger liability to PNCC (existence of such
ccount with said companymentioned in a Memorandum of debtsdetermined from testimonies). So even if the order was
(Trade and Industry) Minister Robert Ongpin to this illegal and Tabuena was notaware of the illegality, he would
Office dated Jan. 7,1985…‖ Tabuena withdrew the sum of 55M not be liable because there would only be a mistake of fact
on three separate committed in good faith.5. Tabuena followed the memorandum
occasions (25M, 25M, 5M to the letter, paying immediately the PNCC,through this office
– (office of the president) the sum of 55M. Tabuena had
with Adolfo Peralta) and delivered them to Gimenez, reasonableground to believe that the President was entitled to
Marcos’s private secretary. receive the money because as Chief Executive, Marcos
? It is without dispute that Tabuena did not follow the normal exercised supervision and control over governmental agencies
procedures inwithdrawal and delivery of the money (no (goodfaith in the payment of public funds relieves a public
disbursement slips and paid in cold cash).? Tabuena was only officer from the crime of malversation).6. While even Tabuena
issued a receipt after the third delivery and it did not admitted that procedures were ignored and that
mentionanything about the purpose of the receipt or the money thedisbursement was unusual, he is found to be excused from
being used to pay PNCC, butmerely acknowledged that such because the MarcosMemorandum enjoined his
Gimenez had received the sum of 55M from Tabuena onthree IMMEDIATE COMPLIANCE. On the other hand, while
occasions. Furthermore, there was no receipt from the PNCC thisallows for the negation of criminal intent, as Tabuena acted
recognizingpayment of debt.? Prosecution: there were no in good faith, he would still
standing obligations in favor of the PNCC at the time be civilly liable (but he’s not criminally liable anymore, escaping
of disbursement of 55M. PNCC said themselves that they the harsher penalties)
didn’t receive the P55M. (see page 362).7. There is no showing that Tabuena had
? Tabuena claimed that he was only complying with the direct anything to do with the creation of theMarcos Memorandum
order of Marcos(plus the Marcos memorandum which –
contained same order) to immediately forward to that even if the real purpose behind the memorandum was to
the office of the President, 55M in cash, as partial payment of
MIAA’s obligations to get 55M from public funds, it is clear that he did and would not
PNCC and that he believed that MIAA indeed had those profit from such and thathe did not have anything to do with the
liabilities to PNCC. In short,that Tabuena acted in good faith.? creation of the memorandum.8. Tabuena case is a case
Sandiganbayan rejected Tabuena’s claim of good faith and concerning obedience in good faith of a duly executedorder.
found him guilty of The order/memorandum came from the Office of the President
malversation by negligence, hence this case.Issue: WON and bears thesignature of the president himself, in effect
Tabuena, in following the orders of his superior, was guilty of allowing for the presumption that such order was regularly
malversation(or if because of the justifying circumstance of issued and patently legal. Furthermore, the wording of the
following the orders of his superior, ingood faith, he would not memorandumexpressed a certain urgency to its execution
be criminally liable, but merely civilly liable)?Held: Tabuena is —
merely civilly liable. The very fact that he was merely following Obedienta est legis essential (act swiftlywithout question).9.
theorders of his superior is a justifying circumstance.Ratio: Main Ratio: Furthermore, the Court itself raises the contention
that the case
1. On the point raised by Tabuena that he cannot be charged involves a violation of the accused’s righ
with intentionalmalversation and be convicted by malversation t to due process in the sense that it wasobvious that the
by negligence, the Court ruled that thedolo and culpa of the Sandiganbayan was overzealous in its attempt to convict
offense is only a modality in the perpetration of the felony. partiesinvolved
Thesame felony is still there and conviction thereof is proper. –
2. On the defense of good faith: it is a valid defense against as seen in the volume of questions asked, and the manner the
malversation becauseit would negate criminal intent. To same wereposed (cross examinations characteristic of
constitute a crime, the act must, except in certain confrontation, probing and insinuation). To
crimes…be accompanied by criminal intent or such negligence quote Justice Cruz, ―Respect for the Constitution is more
or indifference to duty or important that securing aconviction based on a violation of the
to consequences as is equivalent to criminal intent The maxim rights of the accused.‖ Sandiganbayan was
actus non facit reum, nisimens sit rea obviously biased, denying Tabuena and parties involves the
– requirement of the coldneutrality of an impartial judge. As a
consequence of such violation of due process, theorder of
Sandiganbayan was found void. Note that this defense was not
raised byTabuena.Voting:? Four concurred (Narvasa, Vitug,
Kapunan, Mendoza)? Six dissented (Padilla, Davide, Romero,
Puno, Melo, Panganiban)? Justice Hermosisima took no part
as he was a signatory to the SB decision? Regalaso, Bellosillo
and Torres, Jr, Pro hac vice (meaning they join the
majorityopinion but they reserve their right to change their vote
should a similar case with thesame facts arise.)Implication of
pro hac vice: Tabuena v. Sandiganbayan is not precedent for
theproposition that any public official who blindly follows orders
of their superior. Thus, thiscase is not authoritative on Art.
11(6).
Decision: Tabuena and Peralta acquitted.Davide, dissenting:
Davide disagrees with majority that all the requisites of the
sixth justifying circumstance in art 11 of the RPC were present
The sixth circumstance of thesaid article implies 3 things: a)
that the order was issued by a superior; b) such order must be
for some lawful purpose and; c) means used by subordinate to
carry out saidorder must be lawful. According to Davide, facts
show that the debt was only 34.5M soorder of Marcos had
excess of 20.5M
–
said order then had no factual or legal basis andunlawful.

Romero, dissenting: He also believes that not all requisites

were present to warrant a justifying circumstance as Tabuena,
by his own admission, did not follow standardoperating
procedures (no vouchers, no approval by Commission on
Audit, non-issuanceof a receipt in 1st 2 deliveries, non-
issuance of receipt by PNCC, delivery to office of Gimenez [not
office in Malacanang], a stranger to contract between PNCC
and MIAA).The entire process, done with haste and with a total
disregard of appropriate auditingrequi
rements was not based on normal procedure. Tabuena’s rank
does not excuse him
from ignoring such.Puno, dissenting: He concentrates on the
case involving a mistake in fact, citing the AhCHong case
among others, and discussing article 3 in some detail -saying
that mistakein fact should not excuse the accused from
incurring liability. It was also clear from thefacts that it took one
month for Tabuena to comply with order (starting from the
timeMarcos called him up by phone
–
to which the memorandum containing the sameorders followed
a week later), which is more than enough time to comply
withprocedure. He also adds that if there was not enough time,
Tabuena should have askedfor more time or at least
communicated such problems to the president. Moreover,
toacquit the petitioners imply that people believe that the
president is always right, that heor she can do no wrong
–
that the president is above and beyond the law.Panganiban,
dissenting: He is of the same view as Romero, Davide and
Puno but alsorai
ses some points: the defense of obedience to a superior’s
order is already obsolete,
as determined by the Tribunal in Nuremberg, in its judgment
against Nazi war criminalswho put up the defense that they
were merely following orders. The tribunal said thatthe true test
did not lie with the existence of an order but whether a moral
choice was infact, possible. To allow this defense to hold in the
Tabuena case sets a dangerousprecedent in the country
because it would deprive the Courts the moral authority to
convict any subordinate because he or she was ―merely
following the orders of the his
or her superior (allowing the same doctrine to be invoked in
similar criminal casesbefore the SC and even in the inferior
courts who have no choice but to follow thedoctrines set by the
SC).