People vs.

Dramayo

FACTS:

There was a drinking session between all of the accused. It was on that occasion that
Dramayo brought up the idea of killing Estelito Nogaliza so that he could not testify in
the robbery case and the plan on how to kill him. Soon they act acc. to their plan. It was
then that Ecubin hit him with a piece of wood on the side of the head near the right ear.
Dramayo's participation consisted of repeated stabs with a short pointed bolo as he lay
prostrate from the blow of Ecubin. Ecubin’s equanimity appeared undisturbed for early
the next morning, he went to the house of the deceased and informed the, latter's widow
Corazon that he had just seen the cadaver of Estelito. Later Chief of police ,upon
noticing blood stains on the trousers of Dramayo, asked him to explain. The answer was
that a skin ailment of his daughter was the cause thereof. It was on the basis of the
above testimony offered by the prosecution that the lower court reached its decision. Its
dispositive portion found the accused, now appellant Pableo Dramayo and Paterno
Ecubin, guilty beyond reasonable doubt, of the crime of [murder.

WON the criminal libality is established

YES. According to the Constitution, the starting point is the Presumption of

innocence. Accusation is not, according to the fundamental law, synonymous with guilt.
It is incumbent on the prosecution demonstrate that culpability lies. Appellants were not
even called upon then to offer evidence on their behalf. Their freedom is forfeit only if
the requisite quantum of proof necessary for conviction be in existence. Their guilt be
shown beyond reasonable doubt. To such a standard this Court has always been
committed. There is need, therefore, for the most careful scrutiny of the testimony of the
state, both oral and documentary, independently whatever defense is offered by the
accused. Only if judge below and the appellate tribunal could arrive at a conclusion that
the crime had been committed precisely by the person on trial under such an exacting
test should sentence be one of conviction.

The judgment of conviction should not have occasioned any surprise on the part of the
two appellants, as from the evidence deserving of the fullest credence, their guilt had
been more than amply demonstrated. The presumption of innocence could not come to
their rescue as it was more than sufficiently overcome by the proof that was offered by
the prosecution. What would have been a blot on the law is that if, on the facts as
established, no reasonable doubt being entertained, the two appellants would have
been acquitted likewise just because the other five defendants, for the reasons above
stated, were not similarly sentenced.

It must be stated likewise that while squarely advanced for the first time, there had been
cases where this Court, notwithstanding a majority of the defendants being acquitted,
the element of conspiracy likewise being allegedly present, did hold the party or parties,
responsible for the offense guilty of the crime charged, a moral certainty having arisen
as to their capability. 13
It was understandable then why they would want to do away with the principal witness
against them. There was thus a strong inducement for the appellants to have
committed this crime of murder.

With the testimony of record pointing to no other conclusion except the perpetration of
the killing by them, the effort of their counsel, while to be expected from an advocate
zealous in defense of his clients' rights, certainly should not be attended with success. It
suffices to r eiterate the well-settled principle that this Court has invariably respected the
findings of facts of a trial judge who was in a position to weigh and appraise the
testimony before him except when, as was not shown in this case, circumstances
weight or influence were ignored or disregarded by him. 

G.R. No. L-52245 January 22, 1980

PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN,
JR., petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.

Raul M. Gonzales for petitioners

Office of the Solicitor General for respondent.

MELENCIO-HERRERA, J:

This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order
filed by petitioners, in their own behalf and all others allegedly similarly situated, seeking
to enjoin respondent Commission on Elections (COMELEC) from implementing certain
provisions of Batas Pambansa Big. 51, 52, and 53 for being unconstitutional.

The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva
Vizcaya, who has filed his certificate of candidacy for said position of Governor in the
forthcoming elections of January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a
qualified voter and a member of the Bar who, as such, has taken his oath to support the
Constitution and obey the laws of the land. Petitioner, Alfredo Salapantan, Jr., is also a
taxpayer, a qualified voter, and a resident of San Miguel, Iloilo.

Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas

Pambansa Blg. 52 as discriminatory and contrary to the equal protection and due
process guarantees of the Constitution. Said Section 4 provides:

Sec. 4. Special Disqualification in addition to violation of section 10 of Art.

XI I-C of the Constitution and disqualification mentioned in existing laws,
which are hereby declared as disqualification for any of the elective
officials enumerated in section 1 hereof.

Any retired elective provincial city or municipal official who has received
payment of the retirement benefits to which he is entitled under the law,
and who shall have been 6,5 years of age at the commencement of the
term of office to which he seeks to be elected shall not be qualified to run
for the same elective local office from which he has retired (Emphasis
supplied)

Petitioner Dumlao alleges that the aforecited provision is directed insidiously against
him, and that the classification provided therein is based on "purely arbitrary grounds
and, therefore, class legislation."
For their part, petitioners igot and Salapantan, Jr. assail the validity of the following
statutory provisions:

Sec 7. Terms of Office — Unless sooner removed for cause, all local
elective officials hereinabove mentioned shall hold office for a term of six
(6) years, which shall commence on the first Monday of March 1980.

.... (Batas Pambansa Blg. 51) Sec. 4.

Sec. 4. ...

Any person who has committed any act of disloyalty to the State, including
acts amounting to subversion, insurrection, rebellion or other similar
crimes, shall not be qualified to be a candidate for any of the offices
covered by this Act, or to participate in any partisan political activity
therein:

provided that a judgment of conviction for any of the aforementioned

crimes shall be conclusive evidence of such fact and

the filing of charges for the commission of such crimes before a civil court
or military tribunal after preliminary investigation shall be prima fascie
evidence of such fact.

... (Batas Pambansa Big. 52) (Paragraphing and Emphasis supplied).

Section 1. Election of certain Local Officials — ... The election shall be

held on January 30, 1980. (Batas Pambansa, Blg. 52)

Section 6. Election and Campaign Period — The election period shall be

fixed by the Commission on Elections in accordance with Section 6, Art.
XII-C of the Constitution. The period of campaign shall commence on
December 29, 1979 and terminate on January 28, 1980. (ibid.)

In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also
question the accreditation of some political parties by respondent COMELEC, as
authorized by Batas Pambansa Blg. 53, on the ground that it is contrary to section
9(1)Art. XIIC of the Constitution, which provides that a "bona fide candidate for any
public office shall be it. from any form of harassment and discrimination. "The question
of accreditation will not be taken up in this case but in that of Bacalso, et als. vs.
COMELEC et als. No. L-52232) where the issue has been squarely raised,

Petitioners then pray that the statutory provisions they have challenged be declared null
and void for being violative of the Constitution.

I . The procedural Aspect

At the outset, it should be stated that this Petition suffers from basic procedural
infirmities, hence, traditionally unacceptable for judicial resolution. For one, there is a
misjoinder of parties and actions. Petitioner Dumlao's interest is alien to that of
petitioners Igot and Salapantan Petitioner Dumlao does not join petitioners Igot and
Salapantan in the burden of their complaint, nor do the latter join Dumlao in his. The
respectively contest completely different statutory provisions. Petitioner Dumlao has
joined this suit in his individual capacity as a candidate. The action of petitioners Igot
and Salapantan is more in the nature of a taxpayer's suit. Although petitioners plead
nine constraints as the reason of their joint Petition, it would have required only a
modicum more of effort tor petitioner Dumlao, on one hand said petitioners lgot and
Salapantan, on the other, to have filed separate suits, in the interest of orderly
procedure.

For another, there are standards that have to be followed inthe exercise of the function
of judicial review, namely (1) the existence of an appropriate case:, (2) an interest
personal and substantial by the party raising the constitutional question: (3) the plea that
the function be exercised at the earliest opportunity and (4) the necessity that the
constiutional question be passed upon in order to decide the case (People vs. Vera 65
Phil. 56 [1937]).

It may be conceded that the third requisite has been complied with, which is, that the
parties have raised the issue of constitutionality early enough in their pleadings.

This Petition, however, has fallen far short of the other three criteria.

A. Actual case and controversy.

It is basic that the power of judicial review is limited to the determination of actual cases
and controversies.

Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas
Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection clause
guaranteed by the Constitution, and seeks to prohibit respondent COMELEC from
implementing said provision. Yet, Dumlao has not been adversely affected by the
application of that provision. No petition seeking Dumlao's disqualification has been filed
before the COMELEC. There is no ruling of that constitutional body on the matter, which
this Court is being asked to review on Certiorari. His is a question posed in the abstract,
a hypothetical issue, and in effect, a petition for an advisory opinion from this Court to
be rendered without the benefit of a detailed factual record Petitioner Dumlao's case is
clearly within the primary jurisdiction (see concurring Opinion of now Chief Justice
Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as
provided for in section 2, Art. XII-C, for the Constitution the pertinent portion of which
reads:

"Section 2. The Commission on Elections shall have the following power and functions:
 1) xxx

2) Be the sole judge of all contests relating to the elections, returns

and qualifications of all members of the National Assembly and elective
provincial and city officials. (Emphasis supplied)

The aforequoted provision must also be related to section 11 of Art. XII-C, which
provides:

Section 11. Any decision, order, or ruling of the Commission may be

brought to the Supreme Court on certiorari by the aggrieved party within
thirty days from his receipt of a copy thereof.

B. Proper party.

The long-standing rule has been that "the person who impugns the validity of a statute
must have a personal and substantial interest in the case such that he has sustained, or
will sustain, direct injury as a result of its enforcement" (People vs. Vera, supra).

In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their
Petition, that Igot is said to be a candidate for Councilor. Even then, it cannot be denied
that neither one has been convicted nor charged with acts of disloyalty to the State, nor
disqualified from being candidates for local elective positions. Neither one of them has
been calle ed to have been adversely affected by the operation of the statutory
provisions they assail as unconstitutional Theirs is a generated grievance. They have no
personal nor substantial interest at stake. In the absence of any litigate interest, they
can claim no locus standi in seeking judicial redress.

It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's
suit, and that the rule enunciated in People vs. Vera, above stated, has been relaxed in
Pascual vs. The Secretary of Public Works (110 Phil. 331 [1960], thus:

... it is well settled that the validity of a statute may be contested only by
one who will sustain a direct injury in consequence of its enforcement. Yet,
there are many decisions nullifying at the instance of taxpayers, laws
providing for the disbursement of public funds, upon the theory that "the
expenditure of public funds, by an officer of the State for the purpose of
administering an unconstitutional act constitutes a misapplication of such
funds," which may be enjoined at the request of a taxpayer.

In the same vein, it has been held:

In the determination of the degree of interest essential to give the requisite

standing to attack the constitutionality of a statute, the general rule is that
not only persons individually affected, but also taxpayers have sufficient
interest in preventing the illegal expenditure of moneys raised by taxation
 and they may, therefore, question the constitutionality of statutes requiring
expenditure of public moneys. (Philippine Constitution Association, Inc., et
als., vs. Gimenez, et als., 15 SCRA 479 [1965]).

However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51,
and sections 4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of public
funds. While, concededly, the elections to be held involve the expenditure of public
moneys, nowhere in their Petition do said petitioners allege that their tax money is
"being extracted and spent in violation of specific constitutional protections against
abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a
misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of
Public Works, 110 Phil. 331 [1960]), or that public money is being deflected to any
improper purpose. Neither do petitioners seek to restrain respondent from wasting
public funds through the enforcement of an invalid or unconstitutional law. (Philippine
Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine
Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of
a taxpayer's suit, per se is no assurance of judicial review. As held by this Court in Tan
vs. Macapagal (43 SCRA 677 [1972]), speaking through our present Chief Justice, this
Court is vested with discretion as to whether or not a taxpayer's suit should be
entertained.

C. Unavoidability of constitutional question.

Again upon the authority of People vs. Vera, "it is a wellsettled rule that the
constitutionality of an act of the legislature will not be determined by the courts unless
that question is properly raised and presented in appropriate cases and is necessary to
a determination of the case; i.e., the issue of constitutionality must be the very lis mota
presented."

We have already stated that, by the standards set forth in People vs. Vera, the present
is not an "appropriate case" for either petitioner Dumlao or for petitioners Igot and
Salapantan. They are actually without cause of action. It follows that the necessity for
resolving the issue of constitutionality is absent, and procedural regularity would require
that this suit be dismissed.

II. The substantive viewpoint.

We have resolved, however, to rule squarely on two of the challenged provisions, the
Courts not being entirely without discretion in the matter. Thus, adherence to the strict
procedural standard was relaxed in Tinio vs. Mina (26 SCRA 512 [1968]); Edu vs.
Ericta (35 SCRA 481 [1970]); and in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the
Opinion in the Tinio and Gonzalez cases having been penned by our present Chief
Justice. The reasons which have impelled us are the paramount public interest involved
and the proximity of the elections which will be held only a few days hence.
Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him
personally is belied by the fact that several petitions for the disqualification of other
candidates for local positions based on the challenged provision have already been filed
with the COMELEC (as listed in p. 15, respondent's Comment). This tellingly overthrows
Dumlao's contention of intentional or purposeful discrimination.

The assertion that Section 4 of BP Blg. 52 is contrary to the safer guard of equal
protection is neither well taken. The constitutional guarantee of equal protection of the
laws is subject to rational classification. If the groupings are based on reasonable and
real differentiations, one class can be treated and regulated differently from another
class. For purposes of public service, employees 65 years of age, have been validly
classified differently from younger employees. Employees attaining that age are subject
to compulsory retirement, while those of younger ages are not so compulsorily retirable.

In respect of election to provincial, city, or municipal positions, to require that candidates

should not be more than 65 years of age at the time they assume office, if applicable to
everyone, might or might not be a reasonable classification although, as the Solicitor
General has intimated, a good policy of the law would be to promote the emergence of
younger blood in our political elective echelons. On the other hand, it might be that
persons more than 65 years old may also be good elective local officials.

Coming now to the case of retirees. Retirement from government service may or may
not be a reasonable disqualification for elective local officials. For one thing, there can
also be retirees from government service at ages, say below 65. It may neither be
reasonable to disqualify retirees, aged 65, for a 65 year old retiree could be a good local
official just like one, aged 65, who is not a retiree.

But, in the case of a 65-year old elective local official, who has retired from a provincial,
city or municipal office, there is reason to disqualify him from running for the same office
from which he had retired, as provided for in the challenged provision. The need for new
blood assumes relevance. The tiredness of the retiree for government work is present,
and what is emphatically significant is that the retired employee has already declared
himself tired and unavailable for the same government work, but, which, by virtue of a
change of mind, he would like to assume again. It is for this very reason that inequality
will neither result from the application of the challenged provision. Just as that provision
does not deny equal protection neither does it permit of such denial (see People vs.
Vera, 65 Phil. 56 [1933]). Persons similarly situated are sinlilarly treated.

In fine, it bears reiteration that the equal protection clause does not forbid all legal
classification. What is proscribes is a classification which is arbitrary and unreasonable.
That constitutional guarantee is not violated by a reasonable classification based upon
substantial distinctions, where the classification is germane to the purpose of the law
and applies to all Chose belonging to the same class (Peralta vs. Comelec, 82 SCRA
30 [1978] citing Felwa vs. Salas, 18 SCRA 606 [1966]; Rafael v. Embroidery and
Apparel Control and Inspection Board, 21 SCRA 336 [1967]; Inchong etc., et al. vs.
Hernandez 101 Phil. 1155 [1957]). The purpose of the law is to allow the emergence of
younger blood in local governments. The classification in question being pursuant to
that purpose, it cannot be considered invalid "even it at times, it may be susceptible to
the objection that it is marred by theoretical inconsistencies" (Chief Justice Fernando,
The Constitution of the Philippines, 1977 ed., p. 547).

There is an additional consideration. Absent herein is a showing of the clear invalidity of

the questioned provision. Well accepted is the rule that to justify the nullification of a
law, there must be a clear and unequivocal breach of the Constitution, not a doubtful
and equivocal breach. Courts are practically unanimous in the pronouncement that laws
shall not be declared invalid unless the conflict with the Constitution is clear beyond
reasonable doubt (Peralta vs. COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair
4 Dall 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the
compentence of the legislature to prescribe qualifications for one who desires to
become a candidate for office provided they are reasonable, as in this case.

In so far as the petition of Igot and Salapantan are concerned, the second paragraph of
section 4 of Batas Pambansa Blg. 52, quoted in full earlier, and which they challenge,
may be divided in two parts. The first provides:

a. judgment of conviction jor any of the aforementioned crimes shall be

conclusive evidence of such fact ...

The supremacy of the Constitution stands out as the cardinal principle. We are aware of
the presumption of validity that attaches to a challenged statute, of the well-settled
principle that "all reasonable doubts should be resolved in favor of constitutionality," and
that Courts will not set aside a statute as constitutionally defective "except in a clear
case." (People vs. Vera, supra). We are constrained to hold that this is one such clear
case.

Explicit is the constitutional provision that, in all criminal prosecutions, the

accused shall be presumed innocent until the contrary is proved, and shall enjoy
the right to be heard by himself and counsel (Article IV, section 19, 1973
Constitution). An accusation, according to the fundamental law, is not
synonymous with guilt. The challenged proviso contravenes the constitutional
presumption of innocence, as a candidate is disqualified from running for public
office on the ground alone that charges have been filed against him before a civil
or military tribunal. It condemns before one is fully heard. In ultimate effect,
except as to the degree of proof, no distinction is made between a person
convicted of acts of dislotalty and one against whom charges have been filed for
such acts, as both of them would be ineligible to run for public office. A person
disqualified to run for public office on the ground that charges have been filed
against him is virtually placed in the same category as a person already
convicted of a crime with the penalty of arresto, which carries with it the
accessory penalty of suspension of the right to hold office during the term of the
sentence (Art. 44, Revised Penal Code).
And although the filing of charges is considered as but prima facie evidence, and
therefore, may be rebutted, yet. there is "clear and present danger" that because of the
proximity of the elections, time constraints will prevent one charged with acts of
disloyalty from offering contrary proof to overcome the prima facie evidence against
him.

Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the

Courts rather than before an administrative body such as the COMELEC. A highly
possible conflict of findings between two government bodies, to the extreme detriment
of a person charged, will thereby be avoided. Furthermore, a legislative/administrative
determination of guilt should not be allowed to be substituted for a judicial
determination.

Being infected with constitutional infirmity, a partial declaration of nullity of only that
objectionable portion is mandated. It is separable from the first portion of the second
paragraph of section 4 of Batas Pambansa Big. 52 which can stand by itself.

WHEREFORE, 1) the first paragraph of section 4 of Batas pambansa Bilang 52 is

hereby declared valid. Said paragraph reads:

SEC. 4. Special disqualification. — In addition to violation of Section 10 of

Article XII(C) of the Constitution and disqualifications mentioned in existing
laws which are hereby declared as disqualification for any of the elective
officials enumerated in Section 1 hereof, any retired elective provincial,
city or municipal official, who has received payment of the retirement
benefits to which he is entitled under the law and who shall have been 65
years of age at the commencement of the term of office to which he seeks
to be elected, shall not be qualified to run for the same elective local office
from which he has retired.

2) That portion of the second paragraph of section 4 of Batas Pambansa

Bilang 52 providing that "... the filing of charges for the commission of
such crimes before a civil court or military tribunal after preliminary
investigation shall be prima facie evidence of such fact", is hereby
declared null and void, for being violative of the constitutional
presumption of innocence guaranteed to an accused.

SO ORDERED.

Facts: The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya, who has filed
hiscertificate of candidacy for said position of Governor in the forthcoming elections of January 1980. Petitioner,
R.

Igot, is a taxpayer, a qualified voter and a member of the Bar who, as such, has taken his oath to support
theConstitution and obey the laws of the land. Petitioner, A. Salapantan, Jr., is also a taxpayer, a qualified voter, and
aresident of San Miguel, Iloilo.P et i ti oner Dum l ao speci fi cal l y quest i ons t he const i t ut i onal i t y of
sect i on 4 of B at as P am bansa Bl g. 52 as discriminatory and contrary to the equal protection and due
process guarantees of the Constitution. Said Section 4provides:Sec. 4. ... Any person who has committed any act of
disloyalty to the State, including acts amounting to subversion ,insurrection, rebellion or other similar crimes, shall
not be qualified to be a candidate for any of the offices coveredby this Act, or to participate in any partisan political
activity therein :provided that a judgment of conviction for any of the aforementioned crimes shall be conclusive

evidence of such fact and the filing of charges for the commission of such crimes before a civil court
or military tribunal afterpreliminary investigation shall be prima facie evidence of such fact.
Issue: For purposes of disqualification in an election, sec.4 of Batas Blg. 52 says“ the filing of charges for
theCommission of such crimes before a civil court of military tribunal after preliminary investigation shall be
primafacie evidence of such fact (disqualification) valid? (Bernas, page 129, under presumption of innocence)
Ruling: No. This violates the guarantee of presumption of innocence. *>>>Explicit is the constitutional provision
that, in all criminal prosecutions, the accused shall be presumed innocentuntil the contrary is proved, and shall enjoy
the right to be heard by himself and counsel. An accusation, accordingto the fundamental law, is not
synonymous with guilt. The challenged proviso contravenes the constitutional presumption of innocence, as
a candidate is disqualified from running from public office on the ground alone thatcharges have been filed
against him before a civil or military tribunal. It condemns before one is fully heard. Inultimate effect,
except as to the degree of proof, no distinction is made between a person convicted of acts of disloyalty and
one against whom charges have been filed for such acts, as both of them would be ineligible to run for public
office

MARQUEZ, JR vs. COMMISSION ON ELECTIONS and EDUARDO T. RODRIGUEZ, 

FACTS:
Bienvenido Marquez, a defeated candidate for the elective position for the elective
position in the Province of Quezon filed a petition for quo warranto against the winning
candidate, herein private respondent Eduardo Rodriguez. It is on the ground that when
Rodriguez filed his certificate of candidacy, he was a fugitive from justice. Therfore
disqualified to from running for any elective local position under the provisions of
Section 40(e) of the Local Government Code (Republic Act No. 7160).

It is averred that at the time private respondent filed his certificate of candidacy, a
criminal charge against him for ten (10) counts of insurance fraud or grand theft of
personal property was still pending before the Municipal Court of Los Angeles Judicial
District, County of Los Angeles, State of California, U.S.A. A warrant issued by said
court for his arrest, it is claimed, has yet to be served on private respondent on account
of his alleged "flight" from that country.

ISSUE:

WON Private respondent is a “fugitive from justice” having been charged of a pending
criminal case in a foreign country.
RULING:NO. Under Article 73 of the Rules and Regulations Implementing the Local
Government Code of 1991, “fugitives from justice in criminal or non-political cases here
or abroad. Fugitive from justice refers to a person who has been convicted by
final judgment”. It is clear from this provision that fugitives from justice refer only to persons who has
been convicted by final judgment. However, COMELEC did not make any definite finding on whether or
not private respondent is a fugitive from justice when it outrightly denied the petition for quo warranto. The
Court opted to remand the case to COMELEC to resolve and proceed with the case.

People vs. Holgado [G.R. No. L-2809, March 22, 1950]

FACTS:

Appellant Frisco Holgado was charged in the court of First Instance of Romblon with slight illegal
detention because according to the information, being a private person, he did "feloniously and
without justifiable motive, kidnap and detain one Artemia Fabreag in the house of Antero Holgado for
about eight hours thereby depriving said Artemia Fabreag of her personal liberty." Upon
arraignment, he plead guilty without a counsel  and said that he was just instructed
by Mr. Ocampo, which no evidence was presented to indict the latter.. Trail Court
found Holgado guilty

ISSUE: Whether or not the decision of the lower court is valid.

RULING: NO

It is expressly provided in our rules of Court, Rule 112, section 3, when a defendant
appears without attorney, the court has four important duties to comply with: 1 — It must
inform the defendant that it is his right to have attorney before being arraigned; 2 —
After giving him such information the court must ask him if he desires the aid of an
attorney; 3 — If he desires and is unable to employ attorney, the court must assign
attorney de oficio to defend him; and 4 — If the accused desires to procure an attorney
of his own the court must grant him a reasonable time therefor.Not one of these duties
had been complied with by the trial court.

The trial court failed to inquire whether or not the accused was to employ an attorney, to
grant him reasonable time to procure or assign an attorney de oficio. The question
asked by the court to the accused was "Do you have an attorney or are you going to
plead guilty?" Not only did such a question fail to inform the accused that it was his right
to have an attorney before arraignment, but, what is worse, the question was so framed
that it could have been construed by the accused as a suggestion from the court that he
plead guilt if he had no attorney. And this is a denial of fair hearing in violation of the
due process clause contained in our Constitution.

One of the great principles of justice guaranteed by our Constitution is that "no person
shall be held to answer for a criminal offense without due process of law", and that all
accused "shall enjoy the right to be heard by himself and counsel." In criminal cases
there can be no fair hearing unless the accused be given the opportunity to be heard by
counsel. The right to be heard would be of little avail if it does not include the right to be
heard by counsel. Even the most intelligent or educated man may have no skill in the
science of the law, particularly in the rules of procedure, and, without counsel, he may
be convicted not because he is guilty but because he does not know how to establish
his innocence. And this can happen more easily to persons who are ignorant or
uneducated. It is for this reason that the right to be assisted by counsel is deemed so
important that it has become a constitutional right and it is so implemented that under
our rules of procedure it is not enough for the Court to apprise an accused of his right to
have an attorney, it is not enough to ask him whether he desires the aid of an attorney,
but it is essential that the court should assign one de oficio if he so desires and he is
poor grant him a reasonable time to procure an attorney of his own.

Amion vs. Judge Chiongson [A.M. No. RTJ-97-1371, January 22, 1999]

FACTS:

The allegations against respondent judge are premised on his appointment

of a counsel de oficio for accused-complainant despite the latters objection
thereto on the ground that he had his.Complainant-accused asserts that the
aforesaid incidents constitute a clear violation of his right to due process and
a deprivation of his constitutional and statutory right to be defended by
counsel of his own choice.

ISSUE

WON respondent judge’s appointment of a counsel de oficio constitutes a

deprivation of complainant’s constitutional right to be defended by counsel of
his own choice cannot be countenanced by this Court.

RULING

An examination of related provisions in the Constitution concerning the right to

counsel, will show that the “preference in the choice of counsel” pertains more aptly
and specifically to a person under investigation rather than one who is the accused
in a criminal prosecution. Even if we were to extend the application of the concept
of “preference in the choice of counsel” to an accused in a criminal prosecution,
such preferential discretion cannot partake of a discretion so absolute and arbitrary
as would make the choice of counsel refer exclusively to the predilection of the
accused.

The accused’s discretion in a criminal prosecution with respect to his choice of

counsel is not so much as to grant him a plenary prerogative which would preclude
other equally competent and independent counsels from representing him.
Otherwise, the pace of a criminal prosecution will be entirely dictated by the
accused to the detriment of the eventual resolution of the case.

Accused-complainant was not, in any way, deprived of his substantive and

constitutional right to due process as he was duly accorded all the opportunities to
be heard and to present evidence to substantiate his defense but he forfeited this
right, for not appearing in court together with his counsel at the scheduled
hearings. Accused-complainant had more than sufficient time and every available
opportunity to present his side which would have led to the expeditious termination
of the case. A party cannot feign denial of due process when he had the
opportunity to present his side.

There is no denial of the right to counsel where a counsel de oficio was appointed
during the absence of the accused’s counsel de parte pursuant to the court’s desire
to finish the case as early as practicable under the continuous trial system.

G.R. No. 121562. July 10, 1998

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RONNIE QUITLONG

y FRIAS, SALVADOR QUITLONG y FRIAS and EMILIO SENOTO, Jr., y
PASCUA, Accused-Appellants.

DECISION
 VITUG, J.:

The Regional Trial Court of Baguio City finds and declares the accused
RONNIE QUITLONG Y FRIAS, SALVADOR QUITLONG Y FRIAS and EMILIO
SENOTO, JR. Y PASCUA guilty beyond reasonable doubt of the crime of
murder.

The case was generated by an information for murder filed on 25 October

1994 against accused-appellants Salvador Quitlong, Ronnie Quitlong, Emilio
Senoto, Jr., and several other unidentified persons following the killing of
Jonathan Calpito. Accused-appellants, shortly after the filing of the
information, submitted a motion for reinvestigation alleging that it was a
certain Jesus Mendoza who stabbed the victim after getting irked when the
latter urinated near and in front3 of his wife. The trial court acted favorably
on the motion. On 12 December 1994, the City Prosecutor filed a motion to
admit an amended information on the basis of affidavits4 executed by Nonita
F. delos Reyes, Nicanor Ellamil, Lydia Q. Cultura, as well as accused-
appellants Salvador and Ronnie Quitlong themselves, to the effect that it
was Jesus Mendoza who had been responsible for the death of the victim.
The information, as amended, included Jesus Mendoza among the named
accused.5 Unlike accused-appellants who were immediately arrested after
the commission of the crime, Jesus Mendoza remained at large. At their
arraignment, the detained accused pleaded not guilty to the crime charged.

The evidence of the prosecution has narrated how a simple

misunderstanding and relatively so small a matter could lead to so dastardly
and unfortunate an outcome.

At around six oclock in the evening of 20 October 1994, Lito Adjaro, who had
just come from work as a dispatcher of passenger jeepneys plying the
Baguio City-Loakan route, repaired to a nearby game parlor where he saw
19-year-old University of Baguio medical technology student Jonathan
Calpito playing billiards with Jonathan Gosil. Adjaro was Calpitos neighbor
and barkada (gangmate) in Loakan. At past eight oclock, Calpito decided
that it was time to go home. Since at that hour there were no longer
passenger jeepneys bound for Loakan, the three friends decided to walk

Nagfishball tapos kulang sulki

Herbert Soriano,
May nag approach na mga lalaki aggressively

Nasaksak na pala si calpito

Police officers Jerry Patacsil, Arthur Viado and Nito Revivis were on foot
patrol that evening. Tapos dinala sa ospital si calpito

Calpito died at the Baguio General Hospital.

The defense gave no alibi and admitted the presence of accused-appellants

at the vicinity of the crime scene; however, it interposed denial by
appellants of any participation in the commission of the crime.

Appellant Emilio Senoto, Jr., a taxicab driver, testified that out of curiosity,
after parking his cab to buy some cigarettes and getting attracted by the
commotion, went near the scene and saw the victim lying on the ground
beside a cart. He was about to leave the place when several policemen
arrived and arrested him.

Appellant Salvador Quitlong, a food vendor at the Burnham Park and father
of five children, denied having had any participation in the stabbing incident
nor having been acquainted with Jesus Mendoza. He admitted, however, that
on the night in question when he was selling "fishballs" at the park, around
eighty meters away from where Mendoza was selling his wares, the latters
daughter, who was a classmate of his own daughter, asked for help yelling
that her father was in trouble. He rushed over to Mendozas place (puesto)
but barely in time to witness the stabbing of Calpito by Mendoza.

Appellant Ronnie Quitlong, Salvador Quitlongs 26-year-old younger brother,

was also a sidewalk vendor at the waiting shed along Harrison Road. He
learned of the trouble Mendoza got himself into when the latter's daughter
summoned for help. When he and his brother responded, Mendoza had by
then already stabbed Calpito.

Nonita de los Reyes and Lydia Cultura, both sidewalk vendors, corroborated
the story of the Quitlong brothers. According to Nonita, it was Mendoza who
stabbed Calpito. She witnessed the incident from a distance of ten meters
away. Nonita explained that she did not immediately reveal what she saw to
the authorities because of shock. Lydia Cultura, on her part, said that she
saw Jesus Mendoza in the "rumble" with five or six men who had come from
the Genesis Folkden. She saw Mendoza embrace and stab the man in white
t-shirt. Nonita and Alma Balubar followed appellants to the police station but
did not tell the police what she knew because she was busy attending to the
crying pregnant wife of appellant Ronnie Quitlong.
On 21 April 1995, the trial court, following his evaluation of the respective
submissions of the prosecution and the defense, including their rebuttal and
sur-rebuttal evidence, rendered its now assailed decision.

In their assignment of errors, the Quitlong brothers would have it -

1. That the Honorable Lower Court gravely abused its discretion and/or
acted in excess of or without jurisdiction in finding that conspiracy may
readily be inferred inspite of explicit failure to allege in the information or
complaint;

"2. That the Honorable Lower Court gravely abused its discretion and/or
acted in excess of or without jurisdiction in finding that there was conspiracy
between and among the accused-appellants in the commission of the crime;

"3. That the Honorable Lower Court gravely abused its discretion and/or
acted in excess of or without jurisdiction in finding the accused-appellants
guilty of the crime of Murder instead of Homicide.12cräläwvirtualibräry

In his case, appellant Senoto contends that the trial court has erred in
finding conspiracy among the accused and argues that the crime committed
is homicide, not murder, given the circumstances.

On the particular issue of conspiracy, the trial court had this to say:

The question is whether or not the herein three accused participated in, and
may be held guilty as co-principals by reason of conspiracy for, the fatal
stabbing of the victim, Calpito, there being no dispute that the latter died
due to the solitary stab inflicted on him.

"But before proceeding any further, the Court takes notice of the lapse
committed, perhaps inadvertently, by the prosecution in drafting the
indictment. Both the original and amended Informations fail to explicitly
allege conspiracy. This could have been timely cured if obeisance had been
observed of the admonition, often given, that the prosecution should not
take the arraignment stage for granted but, instead, treat the notice thereof
as a reminder to review the case and determine if the complaint or
information is in due form and the allegations therein contained are
sufficient vis--vis the law involved and the evidence on hand. It is fortunate
that in the case at bench conspiracy may readily be inferred from the way
the allegation of abuse of superior strength has been phrased, to wit: `xxx
the above-named accused, being then armed with a knife, with intent to kill
xxx and taking advantage of their numerical superiority and combined
strength did then and there willfully, unlawfully and feloniously attack,
assault and stab JONATHAN CALPITO y CASTRO xxx.13cräläwvirtualibräry

Citing Balmadrid vs. Sandiganbayan,14 the trial court has opined that

"conspiracy may be deemed adequately alleged if the averments in the
Information logically convey that several persons (have been) animated with
the single purpose of committing the offense charged and that they (have)
acted in concert in pursuance of that purpose.15 Holding that no direct proof
is essential and that it suffices that the existence of a common design to
commit the offense charged is shown by the acts of the malefactors and
attendant circumstances, the trial court has concluded:

In the case on hand, it bears repeating that Ronnie Quitlong and Salvador
Quitlong were admittedly responding to Jesus Mendozas call for help through
the latters daughter. They must have, therefore, been disposed, out of
empathy with a fellow sidewalk vendor, to lend Mendoza all the assistance
the latter needed under the circumstances. They were joined, according to
prosecution witnesses Lito Adjaro and Herbert Soriano, by no less than six
others, including Emilio Senoto, Jr. They came upon Mendoza engaged in a
heated altercation with the victim Calpito. When they reached Calpito, they
pushed him and started beating him up and his companion Jonathan Gosil.
Four to five men manhandled Calpito who kept on retreating and even went
around Sorianos parked jeep until he was cornered. Senoto then held
Calpitos body from behind; Ronnie, his left hand; and Salvador, his right
hand, and they mauled him. Calpito struggled to free himself but that proved
futile and, instead, Ronnie stabbed him once. It was only then that he was
released and when he fell down on his back, his attackers still kicked him.
Only the arrival of some policemen made some of the assailants stop and
run away. However, Ronnie, Salvador and Senoto, kept on kicking the victim
and they were restrained and arrested.

"Guided by the jurisprudential authorities heretofore cited, it becomes

ineluctable for the Court to conclude that Ronnie, Salvador and Senoto acted
in a conspiracy and may thus be held liable as co-principals for the death of
Calpito.16cräläwvirtualibräry

Overwhelming, such as it may have been thought of by the trial

court, evidence of conspiracy is not enough for an accused to bear
and to respond to all its grave legal consequences; it is equally
essential that such accused has been apprised when the charge is
made conformably with prevailing substantive and procedural
requirements. Article III, Section 14, of the 1987 Constitution, in
particular, mandates that no person shall be held answerable for a
criminal offense without due process of law and that in all criminal
prosecutions the accused shall first be informed of the nature and
cause of the accusation against him.17 The right to be informed of
any such indictment is likewise explicit in procedural rules. 18 The
practice and object of informing an accused in writing of the charges
against him has been explained as early as the 1904 decision of the
Court in U.S. vs. Karelsen;19 viz:

First. To furnish the accused with such a description of the charge against
him as will enable him to make his defense; and second, to avail himself of
his conviction or acquittal for protection against a further prosecution for the
same cause; and third, to inform the court of the facts alleged, so that it
may decide whether they are sufficient in law to support a conviction, if one
should be had. (United States vs. Cruikshank, 92 U.S., 542). In order that
this requirement may be satisfied, facts must be stated, not conclusions of
law. Every crime is made up of certain acts and intent; these must be set
forth in the complaint with reasonable particularity of time, place, names
(plaintiff and defendant), and circumstances. In short, the complaint must
contain a specific allegation of every fact and circumstance necessary to
constitute the crime charged.

An information, in order to ensure that the constitutional right of the

accused to be informed of the nature and cause of his accusation is not
violated, must state the name of the accused; the designation given to the
offense by the statute; a statement of the acts or omissions so complained
of as constituting the offense; the name of the offended party; the
approximate time and date of the commission of the offense; and the place
where the offense has been committed.20 In embodying the essential
elements of the crime charged, the information must set forth the facts and
circumstances that have a bearing on the culpability and liability of the
accused so that the accused can properly prepare for and undertake his
defense. One such fact or circumstance in a complaint against two or more
accused persons is that of conspiracy. Quite unlike the omission of an
ordinary recital of fact which, if not excepted from or objected to
during trial, may be corrected or supplied by competent proof, an
allegation, however, of conspiracy, or one that would impute
criminal liability to an accused for the act of another or others, is
indispensable in order to hold such person, regardless of the nature
and extent of his own participation, equally guilty with the other or
others in the commission of the crime. Where conspiracy exists and
can rightly be appreciated, the individual acts done to perpetrate the
felony becomes of secondary importance, the act of one being
imputable to all the others. 21 Verily, an accused must know from the
information whether he faces a criminal responsibility not only for
his acts but also for the acts of his co-accused as well.
A conspiracy indictment need not, of course, aver all the components of
conspiracy or allege all the details thereof, like the part that each of the
parties therein have performed, the evidence proving the common design or
the facts connecting all the accused with one another in the web of the
conspiracy. Neither is it necessary to describe conspiracy with the same
degree of particularity required in describing a substantive offense. It is
enough that the indictment contains a statement of the facts relied upon to
be constitutive of the offense in ordinary and concise language, with as
much certainty as the nature of the case will admit, in a manner that can
enable a person of common understanding to know what is intended, and
with such precision that the accused may plead his acquittal or conviction to
a subsequent indictment based on the same facts. It is said, generally,
that an indictment may be held sufficient "if it follows the words of
the statute and reasonably informs the accused of the character of
the offense he is charged with conspiring to commit, or, following
the language of the statute, contains a sufficient statement of an
overt act to effect the object of the conspiracy, or alleges both the
conspiracy and the contemplated crime in the language of the
respective statutes defining them.

The information charging herein appellants for the death of Jonathan Calpito,
as amended, has but simply stated:

That on or about the 20th day of October 1994, in the City of Baguio,

Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, being then armed with a knife, with intent to kill and with
treachery and taking advantage of their numerical superiority and combined
strength, did then and there willfully, unlawfully and feloniously attack,
assault and stab JONATHAN CALPITO Y CASTRO suddenly and unexpectedly,
without any warning whatsoever, inflicting upon him a stab wound at the left
thorax at the level of the 7th rib, left medclavicular line, penetrating the
pereduum and left ventricle causing left remothones of 700 cc and
hemoperecuduum of 250 cc, which directly caused his death.

"CONTRARY TO LAW.23cräläwvirtualibräry

The opinion of the trial court to the effect that conspiracy may
be inferred from the allegation of abuse of superior strength and with the aid
of armed men, i.e., that x x x the above-named accused, being then armed
with a knife, with intent to kill xxx and taking advantage of their numerical
superiority and combined strength, did then and there willfully, unlawfully
and feloniously attack, assault and stab JONATHAN CALPITO Y CASTRO x x
x24 is difficult to accept. Conspiracy arises when two or more persons come
to an agreement concerning the commission of a felony and decide to
commit it. Conspiracy comes to life at the very instant the plotters agree,
expressly or impliedly, to commit the felony and forthwith to actually pursue
it.25 Verily, the information must state that the accused have confederated to
commit the crime or that there has been a community of design, a unity of
purpose or an agreement to commit the felony among the accused. Such an
allegation, in the absence of the usual usage of the words conspired or
confederated or the phrase acting in conspiracy, must aptly appear in the
information in the form of definitive acts constituting conspiracy. In fine, the
agreement to commit the crime, the unity of purpose or the community of
design among the accused must be conveyed such as either by the use of
the term conspire or its derivatives and synonyms or by allegations of basic
facts constituting the conspiracy. Conspiracy must be alleged, not just
inferred, in the information on which basis an accused can aptly enter his
plea, a matter that is not to be confused with or likened to the adequacy of
evidence that may be required to prove it. In establishing conspiracy when
properly alleged, the evidence to support it need not necessarily be shown
by direct proof but may be inferred from shown acts and conduct of the
accused.

In the absence of conspiracy, so averred and proved as heretofore

explained, an accused can only be made liable for the acts committed by him
alone and this criminal responsibility is individual and not collective. 26 And so
it is that must be so held in this case. The conflicting claims of the
prosecution and the defense on who stabbed the victim is an issue that
ultimately and unavoidably goes into the question of whom to believe among
the witnesses. This issue of credibility requires a determination that is
concededly best left to the trial court with its unique position of having been
enabled to observe that elusive and incommunicable evidence of the
deportment of witnesses on the stand.27 Findings of the trial court, following
that assessment, must be given the highest degree of respect absent
compelling reasons to conclude otherwise.28cräläwvirtualibräry

The Court is not, at this time and in this instance, disposed to deviate from
the foregoing rule. In the first place, Lito Adjaro, the eyewitness in the
stabbing of Calpito, has steadfastly stood by, even on rebuttal, to his story
on the commission of the crime. A witness who testifies in a categorical,
straightforward and spontaneous manner, as well as remains consistent on
cross and rebuttal examination, is not likely to be an incredible
witness.29 Secondly, the defense has failed to establish any ill motive on the
part of Adjaro that would have prompted him to testify wrongly against
appellants. Where there is no evidence to indicate that the prosecution
witness has been actuated by any improper motive, it would be hard to
reject the supposition that a person will not prevaricate and cause
damnation to one who has brought him no harm.30 Finally, Herbert Soriano
and the police, who have testified seeing the already wounded Calpito lying
on the ground and still being attacked, both corroborate Adjaros positive
identification of appellants as the persons who did maul Calpito.

After positively pointing to appellants in open court to be the persons who

ganged up on Calpito, Adjaro testified on their respective participations in
the commission of the crime; thus:

PROSECUTOR:

"Q. Now, you pointed to Emilio Senoto, Jr. as one of the persons who held
the deceased Jonathan Calpito. What part of the body of Jonathan Calpito
did he hold?

"A. His body, sir.

"Q. How about Salvador Quitlong whom you also identified in Court. What
part of the body of Jonathan Calpito did he hold?

"A. I saw him hold his hand.

"Q. What hand was held by Salvador Quitlong?

"A. Right hand, sir.

"Q. How about Ronnie Quitlong?

"A. His left hand.

"Q. After Jonathan Calpito was held by these three persons and other, what
happened next?

"A. They mauled (binugbog) Jonathan Calpito.

"Q. Did you notice what part of the body was hit and boxed by these three
persons?

"A. His body and his face.

"Q. What did Jonathan Calpito do, if any, when he is being held by these
three persons and others?

"A. He was struggling, sir.

"Q. Was he able to free himself from the helds (sic) of these persons?
"A. No more, sir.

"Q. What do you mean no more?

"A. He was not able to free himself.

"Q. Yes, why was he not able to free himself anymore?

"A. They held him tightly, he could not struggle.

"Q. And what happened next when you said he could no longer struggle?

"A. They boxed him and also stabbed him, sir.

"Q. Did you see the person who stabbed him?

"A. I saw, sir.

"Q. Will you be able to identify him?

"A. Yes, sir.

"Q. I will request you to again look inside the courtroom and point to the
person whom you saw stab Jonathan Calpito?

"WITNESS:

The person wearing white jacket.

"INTERPRETER:

Witness pointing to a gentleman inside the courtroom wearing cream jacket

who gave his name as Ronnie Quitlong.31cräläwvirtualibräry

Appellant Ronnie Quitlong was a principal by his own act of stabbing Calpito
that caused the latter's death.32 Appellants Salvador Quitlong and Emilio
Senoto, Jr., were holding the hands of Calpito at the precise time that
Ronnie Quitlong was in the act of executing his criminal intent. Simultaneity,
however, would not itself demonstrate the concurrence of will or the unity of
action and purpose that could be a basis for collective responsibility of two or
more individuals;33 indeed, from all indications, the incident would appear to
have occurred at the spur of moment. Appellants Salvador Quitlong and
Emilio Senoto, Jr., shall therefore be held to be mere accomplices
conformably with Article 1834 of the Revised Penal Code.
The crime committed was qualified by abuse of superiority.35 While
superiority in number would not per se mean superiority in strength, enough
proof was adduced, however, to show that the attackers had cooperated in
such a way as to secure advantage of their superiority in strength certainly
out of proportion to the means of defense available to the person
attacked.36cräläwvirtualibräry

Treachery may not be here considered as a generic aggravating

circumstance although it might have ensured the commission of the crime.
In order that treachery may be taken as an aggravating circumstance, there
must be proof that the accused has consciously adopted a mode of attack to
facilitate the perpetration of the killing without risk to himself, i.e., appellant
Ronnie Quitlong in this case.37 No such proof has been adequately shown.

G.R. No. 111399 November 14, 1994

ODON PECHO, petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

A.M. Navarro Law Office for petitioner.

DAVIDE, JR., J.:

Is the attempted or frustrated stage of the offense defined in Section 3(e) of R.A. No.
3019, 1 as amended, otherwise known as the Anti-Graft and Corrupt Practices Act,
punishable? If it is not, may an accused be, nevertheless, convicted for an offense
penalized by the Revised Penal Code which is included in that of the former as
charged?

These are the core issues in this case. The first was resolved in the affirmative by the
Sandiganbayan. The petitioner and the Office of the Solicitor General disagree. The
second is an outcrop of the first.

In Criminal Case No. 14844 of the Sandiganbayan, the petitioner and one Jose Catre
were charged in an information2 with the violation of Section 3(e) of R.A. No. 3019, as
amended, allegedly committed as follows:

That on or about March 16, 1989 and/or sometime prior thereto at Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused ODON PECHO, a public officer being then the Customs
Guard, Miscellaneous Bonded Warehouse Division, Bureau of Customs,
South Harbor, Manila, with the indispensable cooperation and assistance
of the accused JOSE CATRE, whose position, whether public or private,
and address are unknown but representing himself to be a representative
of Eversun Commercial Trading of Cotabato City, a corporation, firm or
partnership which turned-out to be non-existent, fake or fictitious as it is
not registered in the Department of Trade and Industry nor in the
Securities and Exchange Commission and with a fake, spurious or
fictitious Tax Account No. as it was not issued by the Revenue Information
Systems, Inc., Bureau of Internal Revenue, acting in the capacities
aforesaid, with the former taking advantage of his official position and both
accused, motivated and impelled by personal gain, financial and pecuniary
interest, with deliberate intent to cause damage and undue injury to the
Government, through manifest partiality and evident bad faith, conspiring,
confabulating, conniving, confederating and mutually helping one another,
did then and there wilfully, unlawfully and feloniously act, pretend and
feign to be agents or representatives of Eversun Commercial Trading in
the importation of 5 x 20 foot containers STC agricultural disc blades and
irrigation water pumps, and engage, solicit and contract the services of
one Constantino Calica of Labatique, a CPA Customs Broker for the
release of said shipment and/or preparation of the necessary import entry
with the two (2) accused, furnishing, presenting and producing the
necessary shipping documents such as packing list, commercial invoice,
bill of lading and import entry declaration, which led and prompted said
Customs Broker to file BOC Import Entry No. 14081-89 with the computed
taxes and duties amounting to P53,164.00 declaring the shipment as five
(5) containers STC agricultural disc blades and irrigation water pumps,
more particularly described as follows:

5 CONTAINERS STC:
 200 pcs. Agricultural Disc Blades 24 inches in diameter
100 pcs. Agricultural Disc Blades 30 inches in diameter
50 sets Centrifugal Water Pump 5 HP
25 sets Centrifugal Water Pump Diesel Engine 10 H.P.
100 sets Centrifugal Water Pump Diesel engine 25 H.P.

but contrary to the entry declaration, the subject shipment before its
release, upon examination was found and/or discovered to contain 300
units diesel engines Model 4DR50A, to wit, viz.:

1. Contr. No. EKLU-2673966 20' — containing 60 pcs./units

4DR50A diesel engines

2. Contr. No. ITLU-6078177 20' — containing 60 pcs./units

4DR50A diesel engines

3. Contr. No. UFCO-3976925 20' — containing 60 pcs./units

4DR50A diesel engines

4. Contr. No. KLTU-1010988 20' — containing 60 pcs./units

4DR50A diesel engines

5. Contr. No. KXTU-2027369 20' — containing 60 pcs./units

4DR50A diesel engines

and the correct taxes and duties is P1,080,485.00, to the damage and
prejudice of the government in the difference of said amounts or to be
exact in the amount of P1,027,321.00, said offense having been
committed in relation to the office of the above-named accused.

CONTRARY TO LAW.

The investigating prosecutor3 made the following certification in the information:

This is to certify that a preliminary investigation has been conducted in this

case; that there is a reasonable ground to engender a well-founded belief
that a crime has been committed and that the accused are probably guilty
thereof. 4

Warrants for the arrest of the accused were issued. Only the petitioner was brought
under the Sandiganbayan's jurisdiction when he voluntarily surrendered on 15 March
1991. He posted bail.5

After the petitioner had pleaded not guilty at his arraignment on 20 March 1991, 6 trial on
the merits as against him ensued.
In its decision 7 promulgated on 28 June 1993, the Sandiganbayan (Second Division)
found the petitioner guilty as charged and, applying the Indeterminate Sentence Law,
sentenced him "to suffer imprisonment for an indeterminate period of Six (6) years and
One (1) month as minimum penalty,
to Ten (10) years and One (1) day, as maximum penalty, with perpetual disqualification
to hold public office; and to pay the Bureau of Customs, by way of civil liability, the sum
of P1,027,321.00 and to pay the costs." 8

The petitioner's motion for reconsideration based on the following grounds, to wit:

(1) Invalidity of the information as a consequence of non-compliance with

the mandatory provisions of Sections 3 and 4, Rule 112, 9 Rules of Court,
and of Sections 6 and 7, Rules of Procedure of the Office of the
Ombudsman (Administrative Order No. 07);

(2) Failure of the prosecution to overcome by proof beyond reasonable

doubt the presumption of innocence in favor of accused Odon Pecho;

(3) Failure of the prosecution to establish the attendance of the concurring

essential elements of the crime charged; and

(4) There is no such crime as attempted violation of Section 3(e), RA

3019. 10

having been denied in the resolution of the Sandiganbayan of 12 August

1993, 11 he now comes before us with a reiteration of the said grounds.

In its Manifestation in Lieu of Comment 12 filed after having obtained six extensions of

time to file its Comment, or for a total of one hundred and fifty days, the Office of the
Solicitor General submits that there is no merit to the petitioner's claim that the
information is invalid for non-compliance with Sections 3 and 4, Rule 112 of the Rules of
Court and with Sections 6 and 7 of the Rules of Procedure of the Ombudsman
(Administrative Order No. 07), but agrees with the petitioner that the prosecution failed
to prove the elements of the crime charged and the consummation thereof, and, hence,
he should be acquitted. However, it recommends that the petitioner be charged
administratively for the violation of Section 36(b) [28] of P.D. No. 807, otherwise known
as the Civil Service Decree of the Philippines.

In the challenged resolution, the Sandiganbayan rejected the first ground invoked by the
petitioner in his motion for reconsideration because of waiver, having voluntarily entered
his plea of not guilty, participated at the trial, and offered his evidence. As to the second
and third grounds, it ruled that the decision "is supported with proof beyond reasonable
doubt." And as to the fourth ground, it held that the provisions of the Revised Penal
Code on attempted or frustrated felonies do not apply to offenses penalized by special
laws, like the Anti-Graft and Corrupt Practices Act; hence:
 violation of Section 3(e) of RA 3019 is always consummated irrespective
of whether or not the accused has achieved his purpose. The accused's
argument that he did not realize his purpose of depriving the government
in the form of customs tax and duties is of no moment. It is enough that
the accused committed an act that would cause undue injury to the
government to make him liable. 13

We agree with the respondent Sandiganbayan and the Office of the Solicitor General
that, indeed, the procedural issue raised is without merit. Firstly, the certification of the
investigating Prosecutor in the information is sufficient. His failure to state therein that
the accused was informed of the complaint and of the evidence submitted against him
and that he was given an opportunity to submit controverting evidence, which the
petitioner claims is fatal because it is mandatorily required by Sections 3 and 4, Rule
112 of the Rules of Court, is untenable. When the Prosecutor stated under oath
that, inter alia, "a preliminary investigation has been conducted in this case," he gave
the solemn assurance that such preliminary investigation conformed with the
requirements set forth in the said sections. The certification in question is similarly
worded as that involved in Alvizo vs. Sandiganbayan  14 which this Court explicitly
declared to be sufficient. This Court also reiterated therein the doctrine laid down
in People vs. Marquez  15 that the absence of a certification as to the holding of a
preliminary investigation does not invalidate an information because such certification is
not an essential part of the information itself. In Marquez, this Court held:

It should be observed that section 3 of Rule 110 defines an information as

nothing more than "an accusation in writing charging a person with an
offense subscribed by the fiscal and filed with the court." Thus, it is
obvious that such certification is not an essential part of the information
itself and its absence cannot vitiate it as such. True, as already stated,
section 14 of Rule 112 enjoins that "no information . . . shall be filed,
without first giving the accused a chance to be heard in a preliminary
investigation," but, as can be seen, the injunction refers to the non-holding
of the preliminary investigation, not the absence of the certification. In
other words, what is not allowed is the filing of the information without a
preliminary investigation having been previously conducted, and the
injunction that there should be a certification is only a consequence of the
requirement that a preliminary investigation should first be conducted.

If the absence of a certification would not even invalidate the information, then its
presence, although deficient because of some missing clauses or phrases required
under Section 4, Rule 112 of the Rules of Court, can do nothing worse than the former.

The rule is also settled that the right to a preliminary investigation may be waived by the
failure to invoke the right prior to or at least at the time of the accused's plea. 16 Where
the accused pleaded to the charge, he is deemed to have foregone the right of
preliminary investigation and the right to question any irregularity that surrounds
it. 17 The right to a preliminary investigation is not a fundamental right and may be
waived expressly or by silence. 18

Equally devoid of merit is the alleged non-compliance with Sections 6 and 7, Rule II of
the Rules of Procedure of the Office of the Ombudsman. The presumption of regularity
in the performance of official duty 19 on the part of the investigating Prosecutor was not
rebutted. Moreover, the failure to furnish the respondent with a copy of an adverse
resolution pursuant to Section 6 which reads:

Sec. 6. Notice to parties. — The parties shall be served with a copy of the
resolution as finally approved by the Ombudsman or by the proper Deputy
Ombudsman.

does not affect the validity of an information thereafter filed even if a copy of the
resolution upon which the information is based was not served upon the respondent.
The contention that the provision is mandatory in order to allow the respondent to avail
of the 15-day period to file a motion for reconsideration or reinvestigation is not
persuasive for under Section 7 of the said Rule, such motion may, nevertheless, be filed
and acted upon by the Ombudsman if so directed by the court where the information
was filed. Finally, just as in the case of lack of or irregularity in the conduct of the
preliminary investigation, a party, like the petitioner herein, should have seasonably
questioned the procedural error at any time before he entered his plea to the charge.
His failure to do so amounted to a waiver or abandonment of what he believed was his
right under Sections 6 and 7, Rule II of the Rules of Procedure of the Office of the
Ombudsman.

We shall now direct our attention to the core issue in this case, viz., whether the
attempted or frustrated stage of the crime defined in Section 3(e) of R.A. No. 3019 is
punishable. From the facts proved by the prosecution, the plan of the petitioner and his
co-conspirators to defraud the government was foiled. The Sandiganbayan stated:

However, the felonious plan of the two accused to defraud the government
was exposed and foiled through the combined efforts of the employees of
the Bureau of Customs. A spot check on the shipment was conducted on
March 9, 1989 by the Customs Senior Agent Ruperto Santiago. They
discovered that the contents are automotive diesel engines instead of
agricultural disc blades and irrigation pumps as declared in the import
entry and revenue declaration (Exh. A-6) filed with the Bureau of Customs,
more particularly as follows:

xxx xxx xxx

On March 30, 1989, a random computation was made by

Customs Appraiser Mamerto Fernandez based on the
information provided by the Legal Division and he found out
that a discrepancy exists in the total amount of taxes
 equivalent to P1,627,321.00 20 (Exh. E). Consequently, a
hold order and also a warrant of seizure and detention were
issued by the District Collector of Customs covering said
goods. 21

The evidence for the prosecution, as summarized in the challenged decision 22 and in

the Manifestation of the Office of the Solicitor General, 23 established beyond doubt how
the petitioner and his co-accused, Jose Catre, carried out their plan to defraud the
Government.

The petitioner and Catre are from Surigao del Norte. On 15 March 1989, Catre and the
petitioner, then a Customs Guard of the Bureau of Customs assigned at the
Miscellaneous Bonded Warehouse Division, South Harbor, Manila, went to the office of
Constantino Calica, a certified public accountant and a customs broker, at Magallanes
Street, Intramuros, Manila. They introduced themselves to Calica as the duly authorized
representatives of Eversun Commercial Trading, and then engaged him, for an amount
equal to fifty percent (50%) of the authorized brokerage fee, to prepare and file with the
Bureau of Customs the necessary Import Entry and Internal Revenue Declaration
covering Eversun's shipment. The petitioner and Catre submitted to Calica the packing
list (Exhibit "A-3"), the commercial invoice (Exhibit "A-4"), the bill of lading (Exhibit "A-
5"), and the sworn import entry declaration (Exhibit "A-6"). The shipment was declared
as agricultural disc blades and irrigation water pumps more particularly described as
follows:

200 pcs. Agricultural Disc Blades 24 inches in diameter

100 pcs. Agricultural Disc Blades 30 inches in diameter
50 sets Centrifugal Water Pump Diesel engine 5 HP
25 sets Centrifugal Water Pump Diesel engine 10 HP
100 sets Centrifugal Water Pump Diesel engine 25 HP

Based on the foregoing information and the unit HCV in currency per invoice, the
customs duties and taxes due were computed at P53,164.00.

On 16 March 1989, Calica instructed his son Dennis, also a customs broker, to file the
documents with the Manila International Container Port (MICP) and to proceed to K-
Line Shipping in Makati, Metro Manila, for the processing of the delivery permits. Dennis
first dropped by at K-Line Shipping where he was approached by the petitioner and
Catre who introduced themselves as the clients of his father. They invited Dennis to ride
with them in petitioner's car in going to the MICP. Dennis agreed. Upon arrival at the
MICP, Dennis proceeded to the Entry Processing Division of the Bureau of Customs
and filed the import entry and internal revenue declaration (Exhibit "A") and other
supporting documents. Dennis handed to the petitioner and Catre a copy of the import
entry and internal revenue declaration. They then proceeded to Section 6, the
Examiner's Group, of the Bureau of Customs for further processing.
Two days after the documents were submitted to the Entry Processing Division, Catre
called up Calica and requested Calica to assist him and the petitioner when the cargo
will be submitted for actual examination. Calica agreed.

On 21 March 1989 Dennis met again with Catre for the processing of the examination
request. After filing the request with the arrastre operator, Dennis checked the
respective serial numbers of each container. Dennis did not join anymore in the actual
examination of the containers.

On 27 March 1989, Baltazar Morales, Chief Intelligence Officer of the Bureau of

Customs, addressed a formal request (Exhibit "B") to the District Intelligence Officer of
the Bureau for a 100% examination of the shipment consigned to Eversun Commercial
Trading.

On 29 March 1989, Ruperto Santiago, Customs Senior Agent, conducted a spot check
on the questioned shipment to verify the contents of the container van. It was
discovered that the contents were automotive diesel engines instead of agricultural disc
blades and irrigation pumps as declared in the import entry and revenue declaration.
The engines are more particularly described as follows:

1. Contr. No. EKLU-2673966 20' — containing 60 pcs./units DR50A diesel

engine

2. Contr. No. ITLU-6078177 20' — containing 60 pcs./units 4DR50A diesel

engine

3. Contr. No. UFCO-3976925 20' — containing 60 pcs./units 4DR50A

diesel engine

4. Contr. No. KLTU-1010988 20' — containing 60 pcs./units 4DR50A

diesel engine

5. Contr. No. KXTU-2027369 20' — containing 60 pcs./units 4DR50A

diesel engine

The computation of the taxes due thereon made on 30 March 1989 by Mamerto
Fernandez, Customs Appraiser, showed a discrepancy in the total amount of
P1,027,321.00 (Exhibit "E"). Consequently, a hold order and a warrant of seizure and
detention were issued by the District Collector of Customs.

Per the directive of the Commissioner of Customs dated 20 April 1989, Attys. Cesar
Tugday and Crisanto Tamparong of the Internal Inquiry and Prosecution Division
conducted an investigation on the circumstances surrounding the interception and
seizure of the shipment. Their verification with the Securities and Exchange
Commission (SEC) and the Department of Trade and Industry (DTI) disclosed that
Eversun Commercial Trading is a non-existent firm and that the tax account number
used by Eversun in making the Import Entry Declaration was non-existent.

During their investigation, Tugday and Tamparong issued two subpoenas to the
petitioner to appear before them. He did not appear to explain his side. As a result,
Tugday and Tamparong prepared an Investigation Report (Exhibit "I") containing their
findings and recommendations, among which were the filing of criminal charges against
the petitioner, Jose Catre, and a certain Pablito Ampal pursuant to Section 3602 of the
Tariff and Customs Code of the Philippines and the filing of criminal charges against the
petitioner under Section 3610, in relation to Section 3512.

Subsequently, after appropriate preliminary investigation, the information was filed with
the Sandiganbayan.

On the basis of the evidence, the Sandiganbayan concluded that all the elements of
Section 3 (e) of R.A. No. 3019, to wit:

1. The accused is a public officer or private person charged in conspiracy

with him;

2. Said public officer commits the prohibited acts during the

performance of his official duties or in relation to his public position;

3. He causes undue injury to any party, whether the government or private

party;

4. Such undue injury is caused by giving unwarranted benefits, advantage

or preference to such parties; and

5. The public officer has acted with manifest partiality, evident bad faith or
gross inexcusable negligence. 24

are present in this case. More specifically, it said:

Accused Odon Pecho acted in bad faith from the very start when he
conspired with his co-accused Mr. Jose Catre in misleading the
government on the actual contents of the shipments belonging to Eversun
Commercial Trading and thereby evading the payment of correct taxes
due to the government. "Bad faith" does not simply connote bad judgment
or negligence; it imputes a dishonest purpose or some moral obliquity and
conscious doing of a wrong; a breach of sworn duty through some motive
or intent or ill will; it partakes of the nature of fraud. (Spiegel vs. Beacon
Participations 8 NE 2nd Series, 895, 1007). It contemplates a statement of
mind affirmatively operating with furtive design or some motive of self-
interest or ill will for ulterior purposes (Air France vs. Carrascoso, 18
SCRA 155). Evident bad faith connotes a manifest deliberate intent on the
part of accused to do wrong or cause damage.

As Customs Guard, the accused is supposed to safeguard the interest of

the government particularly the Bureau of Customs to which he is
employed. Nonetheless, he allowed himself to be used in this illegal
scheme to give unwarranted benefits or advantage to the importer at the
expense of the government. The accused's participation is positively
established by the testimonies of Messrs. Constantino Calica and his son
Dennis Calica. These two represent the Calica Brokerage contracted by
the two accused Mr. Pecho and Mr. Catre to prepare and file with the
Bureau of Customs the required import entry declaration. The two
accused went straight to Mr. Calica's office and introduced themselves as
the duly authorized representatives of Eversun Commercial Trading which
is based at Surigao del Norte. The contract of services entered into by the
two accused and Mr. Constantino Calica may be said to be peculiar from
the usual contract of this kind. It is limited only to the preparation of the
import entry declaration, the computation of taxes due to the Bureau of
Customs and filing the same with the latter. It was the two accused who
handed
Mr. Calica the shipping documents necessary for the preparation of an
import entry declaration such as the packing list (Exh. A-3), the
commercial invoice (Exh. A-4), bill of lading (Exh. A-3) and the importer's
sworn statement. These documents declare the shipment as five (5)
containers of STC agricultural disc blades and irrigation water pumps
more particularly described as follows:

xxx xxx xxx

Based on the information given by the two accused, the taxes and duties
was computed at P53,164.00.

As the customs representative of Calica Brokerage, Dennis Calica is in-

charge with the filing and posting of documents with the Bureau of
Customs. On March 16, 1989, his father instructed him to file the import
entry declaration covering the importations of Eversun Commercial
Trading with the Bureau of Customs. He dropped first at the head office of
K Line Shipping Company in Makati to process the delivery permits. While
he was there, two men approached him and introduced themselves as Mr.
Pecho and Mr. Catre, the clients of his father. The two accused invited him
to go with them and they boarded Mr. Pecho's car and the three of them
proceeded to the Manila International Container Port. The two accused
accompanied him when the import entry declaration (Exh. A-6) was filed
with the Entry Processing Division, Bureau of Customs. The services of
the Calica Brokerage were again solicited by the two accused in the actual
 examination of the goods. So, on March 21, 1989, Dennis Calica met
again with the two accused for the said purpose.

There is a deliberate intent on the part of the accused to do wrong or

cause damage to the government. This may be inferred from the
actuations of two accused. Their concerted actions show that they
cooperated with each other towards the accomplishment of a common
felonious purpose, in this case, the defraudation of the government
through non-payment of the correct amount of taxes and duties to the
latter (People vs. Catubig, 195 SCRA 505). Accused Pecho assisted his
co-accused Catre in his official capacity as a customs guard in processing
the documents required to insure that the goods consigned to Eversun
Commercial Trading be released without delay and without arousing
suspicion from the government authorities. Accused Pecho's act defeats
the very objective of the government to upgrade the system of collection
with regard to taxes and duties due to the government. Moreover, this is
tantamount to an act of betrayal of the confidence reposed in him when he
was employed as Customs Guard of the Bureau of Customs. 25

There is no doubt in our minds that without the early discovery of the fraud through the
timely recommendation by the Chief Intelligence Officer for a 100% examination of the
shipment and the spot check of the shipment by Customs Senior Agent Ruperto
Santiago, the Government would have been defrauded in the sum of P1,027,321.00
corresponding to the deficiency in taxes. Such discovery and the immediate issuance of
a hold order and a warrant of seizure and detention by the District Collector of Customs
against the said articles effectively prevented the consummation of the offense. The
Government incurred no undue injury or damage. At most then, the violation of Section
3(e) of R.A. No. 3019 reached only the attempted stage because the perpetrators had
commenced the commission of the offense directly by overt acts but failed to perform all
the acts of execution which would have produced the felony as a consequence by
reason or some cause other than their own spontaneous desistance, 26 namely, the
timely intervention of alert customs officials before the release of the cargoes.

Except then as to the third requisite of the offense penalized by Section 3 (e) of R.A.
No. 3019, as amended, viz.: "causing undue injury to any party, including the
Government," we agree with the findings and conclusion of the Sandiganbayan that the
requisites thereof, as laid down in Ponce de Leon vs. Sandiganbayan, 27 are present in
this case. Would the absence of the third requisite, which, therefore, makes the
petitioner's act only an attempted violation of Section 3(e), subject him to the same
penalty as if he had committed the consummated crime? The answer would depend on
whether Article 6 28 of the Revised Penal Code is applicable to offenses punished by
special laws, like R.A. No. 3019, as amended, more specifically to that covered by
Section 3(e) thereof, which is involved in this case.

In United States vs. Basa, 29 this Court held that the last paragraph of Article 3 of the
Old Penal Code relating to attempts to commit crimes is not applicable to offenses
punished "by acts of the Commission," i.e., special laws. In People vs. Ngan Te, 30 this
Court also held that an accused cannot be convicted of a frustrated violation of a crime
punished by a special law (Section 4 of the Gold Reserve Act of Congress of 30
January 1934).

In People vs. Jolliffe, 31 involving a prosecution for the violation of Section 34 of R.A. No.

265, in relation to Section 4 of Central Bank Circular No. 21 which provides:

Any person desiring to export gold in any form, including jewelry, whether
for refining abroad or otherwise, must obtain a license from the Central
Bank. Applicants for export licenses must present satisfactory evidence
that the import of the gold into the country of the importer will not be in
violation of the rules and regulations of such country.

this Court, in rejecting the contention of the defense that the penalty for violations of the
circular refer to consummated exportation not to "attempted or frustrated exportation,"
declared:

This section explicitly applies to "any person desiring to export gold" and,

hence, it contemplates the situation existing prior to the consummation of
the exportation. Indeed, its purpose would be defeated if the penal
sanction were deferred until after the article in question had left the
Philippines, for jurisdiction over it, and over the guilty party, would be lost
thereby.

It may thus be said that the application of Article 6 of the Revised Penal Code to
offenses penalized by special laws would depend on how the latter defines the offense.
This would give life to Article 10 thereof which provides that the Code shall be
supplementary to special laws, unless the latter should specifically provide the contrary.
In the case of Section 4 of Central Bank Circular No. 21, it is clear from the phrase
"desiring to export" that even a mere attempt to export — which is necessarily included
in desiring — is punishable.

There are two principal reasons why Section 3(e) of R.A. No. 3019, as amended, can
be said to penalize only consummated offenses. Firstly, the penalty imposed therefor
per Section 9 is "imprisonment for not less than six years and one month nor more than
fifteen years, perpetual disqualification from office, and confiscation or forfeiture in favor
of the Government of any prohibited interest and unexplained wealth manifestly out of
proportion to his salary and other lawful income." The imposable imprisonment penalty
does not have the nomenclature and duration of any specific penalty in the Revised
Penal Code. Accordingly, there can be no valid basis for the application of, inter alia,
Articles 50 and 51 on the penalty to be imposed on the principal of a frustrated and
attempted felony. The penalty of perpetual disqualification is only from office, unlike
either the perpetual absolute and perpetual special disqualifications under Articles 30
and 31 of the Revised Penal Code. Secondly, the third requisite of Section 3(e), viz.,
"causing undue injury to any party, including the government," could only mean actual
injury or damage which must be established by evidence. The word causing is the
present participle of the word cause. As a verb, the latter means "to be the cause or
occasion of; to effect as an agent; to bring about; to bring into existence; to make to
induce; to compel." 32 The word undue means "more than necessary; not proper;
illegal." 33 And the word injury means "any wrong or damage done to another, either in
his person, rights, reputation or property. The invasion of any legally protected interest
of another." 34 Taken together, proof of actual injury or damage is required. Thus,
in Alejandro vs. People, 35 which involves a prosecution for the violation of Section 3(e)
of R.A. No. 3019, as amended, this Court, in acquitting the accused declared:

Moreover, one of the elements of the crime described in Sec. 3(e) of the
Anti-Graft and Corrupt Practices Act is that there should be undue injury
caused to any party. However, in the 30 July 1987 decision of the
respondent Sandiganbayan, it is recognized that there was no proof of
damage caused to the employees of the hospital since they were in fact
paid on 27 October 1982 their salaries for the entire third quarter of 1982.

In Fernando vs. Sandiganbayan, 36 this Court, quoting the ruling in Alejandro, also

stated:

There is no evidence whatsoever to show that the acts of the petitioners

were done with evident bad faith or gross negligence. Neither is there
proof that there was undue injury caused to any party. Who is the party
injured? There is nothing in the records to show injury to any party, least
of all the government. The urgent repairs were completed. The Bureau of
Customs personnel and the public dealing with them were benefited but
nobody was injured. But most of all, there was no evident partiality.

No actual injury or damage having been caused to the Government due to the timely
100% examination of the shipment and the subsequent issuance of a hold order and a
warrant of seizure and detention, the petitioner must, perforce, be acquitted of the
violation of Section 3(e) of R.A. No. 3019. Fortunately, for the State, the offense
charged in the information in Criminal Case No. 14844 necessarily includes the complex
crime of estafa (under paragraph 2(a), Article 315, Revised Penal Code) through
falsification of public documents (under Article 171, Revised Penal Code). Article 315
reads:

Art. 315. Swindling (estafa). — Any person who shall defraud another by

any of the means mentioned herein below.

xxx xxx xxx

2. By means of any of the following false pretenses or fraudulent acts

executed prior to or simultaneously with the commission of the fraud:
 (a) By using fictitious name, or falsely pretending to possess
power, influence, qualifications, property, credit, agency,
business or imaginary transactions, or by means of other
similar deceits.

The information alleges in no uncertain terms the essential ingredients of estafa

under said paragraph 2 (a), viz., (1) false or fraudulent representation of co-
accused Jose Catre that he was the duly authorized representative of Eversun
Commercial Trading, the alleged importer of agricultural disc blades and
irrigation water pumps in the container van when, in truth and in fact, said
importer is non-existent or fictitious with an equally spurious Tax Account
Number, and that the cargoes imported were not as declared but 300 units of
diesel engines, which fraudulent acts were done with the use of falsified
documents such as import entry declaration, packing list, commercial invoice and
bill of lading; (2) the false pretenses or fraudulent acts were executed prior to the
commission of the fraud; and (3) the defraudation of the Government in the
amount of P1,027,321.00 in taxes representing the difference between the
correct taxes and duties due and that earlier computed on the basis of the false
declaration. In other words some of the essential ingredients of the offense
charged constitute the essential requisites of estafa through falsification of official
documents. If duly proved by the evidence for the prosecution that satisfies the
quantum of proof required for conviction, the petitioner can, under the information
be convicted of estafa through falsification of official and commercial documents,
an offense which is, as stated earlier, included in that which is charged.

Section 4, Rule 120 of the Rules of Court provides:

Sec. 4. Judgment in case of variance between allegation and proof. —

When there is variance between the offense charged in the complaint or
information, and that proved or established by the evidence, and the
offense as charged is included in or necessarily includes the offense
proved, the accused shall be convicted of the offense proved included in
that which is charged, or of the offense charged included in that which is
proved.

Analyzing this provision, this Court stated in Esquerra vs. People: 37

Stated differently, an accused may be convicted of an offense provided it

is included in the charge, or of an offense charged which is included in
that proved. Still stated differently, an accused can be convicted of an
offense only when it is both charged and proved. If it is not charged
although proved, or if it is not proved although charged, the accused
cannot be convicted thereof. In other words, variance between the
allegation and proof cannot justify conviction for either the offense charged
or the offense proved unless either is included in the other.
Section of Rule 120 states when an offense includes or is included in the other:

Sec. 5. When an offense includes or is included in another. — An offense

charged necessarily includes that which is proved, when some of the
essential elements or ingredients of the former, as this is alleged in the
complaint or information, constitute the latter. And an offense charged is
necessarily included in the offense proved, when the essential ingredients
of the former constitute or form a part of those constituting the latter.

In view of the aforesaid rules, it follows then that:

a. When the offense proved is less serious than, and is necessarily

included in, the offense charged (as when the offense proved is homicide
and the offense charged is murder), in which case the defendant shall be
convicted of the offense proved (U.S. vs. Macalintal, 2 Phil.
448; . . .).

b. When the offense proved is more serious than and includes the offense
charged (as when the offense proved is serious physical injuries and the
offense charged is slight physical injuries), in which case the defendant
shall be convicted only of the offense charged (U.S. vs. Guzman, 8 Phil.
21 . . .). 38

As earlier adverted to, the evidence established by the prosecution proves beyond
reasonable doubt that the crime of estafa was only at its attempted stage and that it was
sought to be consummated through the falsification of the following documents: the
packing list (Exhibit "A-3") and Invoice (Exhibit "A-4"), which appear to be prepared by
the exporter, Kowa Tsusho Co. Ltd. through one Masayuki Higuchi, its general
manager; Bill of Lading (Exhibit "A-5") which appears to be issued in Yokohama by the
Kisen Kaishe Ltd.; the sworn Import Entry Declaration (Exhibit "A-6") all of which show
that the cargoes imported were "agricultural disc blades and irrigation water pumps; as
well as the Import Entry and Internal Revenue Declaration signed by customs broker
Constantino Calica and prepared on the basis of the foregoing documents. The
falsifications consist in making it appear that the importer-consignee indicated is a
legitimate importer or an existing importer which had participated in such importation
and authorized the accused to request the release of the imported articles although, in
truth, it is non-existent and, therefore, had no participation in the importation; and in the
untruthful statements that what were imported were agricultural disc blades and
irrigation water pumps when in truth they were automotive diesel engines.

The information in this case can also be considered as charging two offenses: the
violation of Section 3(e) of R.A. No. 3019 and the complex crime of attempted estafa
through falsification of official and commercial documents. The accused having failed to
object before trial to the duplicitous information, he may be validly convicted of both or
either of the offenses charged and proved. 39
The Import Entry Declaration (Exhibit "A-6"), a public and official document, is required
by Section 1301 of the Revised Tariff and Customs Code of the Philippines. 40 Under
the said section, the parties authorized to make the import entry are (a) the importer,
being the holder of the bill of lading, (b) a duly licensed customs broker acting under
authority from a holder of the bill of lading, or (c) a person duly empowered to act as
agent or attorney in fact for such holder. If the entry is filed by a party other than the
importer, the importer shall himself be required to declare under oath and under
penalties for falsification or perjury that the declarations and statements contained in the
entry are true and correct. Such statements under oath shall constitute prima
facie evidence of knowledge and consent of the importer of a violation against
applicable provisions of the Code should the importation turn out to be unlawful or
irregular.

The falsifications then of the aforesaid official and commercial documents were the
necessary means for the commission of the attempted estafa.

There was no direct proof that the petitioner and his co-conspirator, Jose Catre, were
the authors of the falsification. Nevertheless, since it was shown with moral certainty
from the testimony of the Calicas that the petitioner and Catre were in possession of the
falsified documents and personally delivered them to Dennis Calica and that they
showed extraordinary personal interest in securing the release of the cargoes for a
fictitious importer, then the petitioner and Catre are presumed to be the authors of the
falsified documents. A rule, well-buttressed upon reason, is that in the absence of
satisfactory explanation one found in possession of and who used a forged document is
the forger and therefore guilty of falsification. 41 It is, however, essential that the use
must be so closely connected in time with the forging such that the utterer or user may
be proved to have the capacity of forging, or such close connection with the forger that it
becomes, when so accomplished, probable proof of complicity in the forgery. 42

In People vs. Sendaydiego, 43 this Court reiterated the rule thus:

The rule is that if a person had in his possession a falsified document and
he made use of it (uttered it), taking advantage of it and profiting thereby,
the presumption is that he is the material author of the falsification. This is
especially true if the use or uttering of the forged documents was so
closely connected in time with the forgery that the user or possessor may
be proven to have the capacity of committing the forgery, or to have close
connection with the forgers, and, therefore, had complicity in the forgery.
(U.S. vs. Castillo, 6 Phil. 453; People vs. De Lara, 45 Phil. 754; People vs.
Domingo, 49 Phil. 28; People vs. Astudillo, 60 Phil. 338; People vs.
Manansala, 105 Phil. 1253).

In the absence of a satisfactory explanation, one who is found in

possession of a forged document and who used or uttered it is presumed
to be the forger (Alarcon vs. Court of Appeals, L-21846, March 31, 1967,
 19 SCRA 688; People vs. Caragao, L-28258, December 27, 1969, 30
SCRA 993).

No explanation at all having been given by the petitioner as to why he and his co-
accused were in possession of and used the falsified official and commercial
documents, they are deemed to be the forgers thereof.

Accordingly, the petitioner is liable for and can be validly convicted of the complex crime
of attempted estafa through falsification of official and commercial documents under
paragraph 2(a) of Article 315 and Article 171 of the Revised Penal Code. Pursuant to
Article 48, the penalty for the more serious crime shall be applied in its maximum
period.

If the crime of estafa had been consummated, the Government would have been
defrauded in the amount of P1,027,321.00. Hence, the applicable penalty under Article
315 of the Revised Penal Code would have been prision correccional in its maximum
period to prision mayor in its minimum period, with an additional one (1) year for every
P10,000.00 in excess of the first P22,000.00; provided, that the total penalty should not
exceed twenty years.

Since what was established was only attempted estafa, then the applicable penalty
would be that which is two degrees lower than that prescribed by law for the
consummated felony pursuant to Article 51, in relation to Article 61(5), of the Revised
Penal Code, viz., arresto mayor in its medium period to arresto mayor in its maximum
period.

On the other hand, the penalty for falsification under Article 171 is prision mayor and a
fine not exceeding P5,000.00. Obviously then, this is the more serious crime which shall
be imposed upon the petitioner pursuant to Article 48. Since he is entitled to the benefits
of the Indeterminate Sentence Law, 44 he can be sentenced to an indeterminate penalty
ranging from two (2) years, four (4) months, and one (1) day of prision
correccional medium as minimum to ten (10) years and one (1) day of prision
mayor maximum as maximum and a fine of P2,000.00. The maximum of the duration is
in conformity with Article 48 which mandates that the penalty for the more serious crime
shall be applied in its maximum period.

The foregoing disquisitions clearly suggest that those in charge of investigating criminal
complaints against public officials and employees and of filing the corresponding
informations in court must carefully determine under what law the offenders should be
prosecuted. They should note that the offenses enumerated in Section 3 of the Anti-
Graft and Corrupt Practices Act (R.A.
No. 3019, as amended) are but in addition to acts or omissions of public officers
already penalized by existing law. Thus, to attain the very purpose of said law and
further enhance the constitutional mandate that a public office is a public trust and all
public officers and employees "must at all times be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, and efficiency," 45 prosecutors should
not limit their action to the additional offenses. To be more logical, they should initially
consider if the questioned acts are already penalized by the Revised Penal Code and
should the rule on double jeopardy be inapplicable, to exhaust all the available
remedies of the State against the offender. It is a cardinal rule that the protection
against double jeopardy may be invoked only for the same offense. 46

WHEREFORE, the instant petition is DENIED; however, the judgment of the

Sandiganbayan in Criminal Case No. 14844 is modified, and, as modified, the petitioner
is hereby declared guilty beyond reasonable doubt of the complex crime of attempted
estafa through falsification of official and commercial documents and, applying the
Indeterminate Sentence Law, is hereby sentenced to suffer an imprisonment penalty
ranging from TWO (2) YEARS, FOUR (4) MONTHS, and ONE (1) DAY of prision
correccional medium as minimum to TEN (10) YEARS and ONE (1) DAY of prision
mayor maximum as maximum, with the accessories thereof and to pay a fine of Two
Thousand Pesos (P2,000.00).

Costs against the petitioner.

SO ORDERED.