G.R. No.
L-52245 January 22, 1980 Petitioner Dumlao alleges that the aforecited provision is directed insidiously
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)
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.
G.R. No. 112889 April 18, 1995
BIENVENIDO O. MARQUEZ, JR., petitioner,
vs.
COMMISSION ON ELECTIONS and EDUARDO T.
RODRIGUEZ, respondents.
VITUG, J.:
The Court is called upon, in this petition for certiorari, to resolve the
conflicting claims of the parties on the meaning of the term "fugitive from
justice as that phrase is so used under the provisions of Section 40(e) of the
Local Government Code (Republic Act No. 7160). That law states:
Sec. 40. Disqualifications. The following persons are
disqualified from running for any elective local position:
xxx xxx xxx
(e) Fugitive from justice in criminal or non-political cases
here or abroad(.)
Bienvenido Marquez, a defeated candidate for the elective
position for the elective position in the Province of Quezon in
the 11th May 1992 elections filed this petition
for certiorari praying for the reversal of the resolution of the
Commission on Elections ("COMELEC") which dismissed his
petition for quo warranto against the winning candidate,
herein private respondent Eduardo Rodriguez, for being
allegedly a fugitive from justice.
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.
Before the 11th May 1992 elections, a petition for cancellation (SPA 92-065)
of respondent's certificate of candidacy, on the ground of the candidate's
disqualification under Section 40(e) of the Local Government Code, was filed
by petitioner with the COMELEC. On 08 May 1992, the COMELEC
dismissed the petition.
Petitioner's subsequent recourse to this Court (in G.R. No. 105310) from the
08th May 1992 resolution of COMELEC was dismissed without prejudice,
however, to the filing in due time of a possible post-election quo
warranto proceeding against private respondent. The Court, in its resolution
of 02 June 1992, held:
Evidently, the matter elevated to this Court was a pre-
proclamation controversy. Since the private respondent had
already been proclaimed as the duly elected Governor of the
Province of Quezon, the petition below for disqualification
has ceased to be a pre-proclamation controversy.
In Casimiro vs. Commission on Elections, G.R. Nos. 84462-
63 and Antonio vs. Commission on Elections, G.R. Nos.
84678-79, jointly decided on 29 March 1989, 171 SCRA 468,
this court held that a pre-proclamation controversy is no
longer viable at this point of time and should be dismissed.
The proper remedy of the petitioner is to pursue the
disqualification suit in a separate proceeding.
ACCORDINGLY, the Court Resolved to DISMISS the
petition, without prejudice to the filing of the appropriate
proceedings in the proper forum, if so desired, within ten (10)
days from notice. 1
Private respondent was proclaimed Governor-elect of Quezon on 29 May
1992. Forthwith, petitioner instituted quo warranto proceedings (EPC 92-28)
against private respondent before the COMELEC. In its 02 February 1993
resolution, the COMELEC (Second Division) dismissed the petition. The
COMELEC En Banc, on 02 December 1993, denied a reconsideration of the
resolution.
Hence, this petition for certiorari, the core issue of which, such as to be
expected, focuses on whether private respondent who, at the time of the
filing of his certificate of candidacy (and to date), is said to be facing
a criminal charge before a foreign court and evading a warrant for his arrest
comes within the term "fugitive from justice" contemplated by Section 40(e)
of the Local Government Code and, therefore, disqualified from being a
candidate for, and thereby ineligible from holding on to, an elective local
office.
Petitioner's position is perspicuous and to the point. The law, he asseverates,
needs no further interpretation and construction. Section 40(e) of Republic
Act No. 7160, is rather clear, he submits, and it disqualifies "fugitive from
justice" includes not only those who flee after conviction to avoid punishment
but likewise those who, after being charged flee to avoid prosecution. This
definition truly finds support from jurisprudence (Philippine Law Dictionary,
Third Edition, p. 399, by F.B. Moreno; Black's Law Dictionary, Sixth Edition,
p. 671; King vs. Noe, 244 S.C. 344, 137 S.E. 2d 102, 103; Hughes vs.
PFlanz, 138 Federal Reporter 980; Tobin vs. Casaus, 275 Pacific Reporter,
2d., p. 792), and it may be so conceded as expressing the general and
ordinary connotation of the term.
In turn, private respondent would have the Court respect the conclusions of
the Oversight Committee which, conformably with Section 5332 of R.A. 7160,
was convened by the President to "formulate and issue the appropriate rules
and regulations necessary for the efficient and effective implementation of
any and all provisions of the Code to ensure compliance with the principles of
Local Autonomy.
Here are some excerpts from the committee's deliberations:
CHAIRMAN MERCADO. Session is resumed.
So, we are in agreement to retain Line 12, Page
36, as is. So next, Page 39.
CHAIRMAN DE PEDRO. Kay Benny Marquez.
REP. CUENCO: What does he want?
CHAIRMAN DE PEDRO. Kung puwede i-retain
lang iyan. Bahala na kung kuwestiyunin ang
constitutionality nito before the Supreme Court
later on.
REP. CUENCO. Anong nakalagay diyan?
CHAIRMAN DE PEDRO. Iyong disqualification to
run for public office.
Any person who is a fugitive from justice in
criminal or nonpolitical cases here or abroad.
Mabigat yung abroad. One who is facing criminal
charges with the warrant of arrest pending,
unserved. . .
HONORABLE SAGUISAG. I think that is even a
good point, ano — what is a fugitive? It is not
defined. We have loose understanding. . .
CHAIRMAN DE PEDRO. So isingit na rin sa
definition of terms iyong fugitive.
Si Benny umalis na, with the understanding na
okay na sa atin ito.
THE CHAIRMAN. Whether we have this rule or
not she can run. She is not a fugitive from justice.
Mrs. Marcos can run at this point and I have held
that for a long time ago. So can. . .
MS. DOCTOR. Mr. Chairman. . .
THE CHAIRMAN. Yes.
MS. DOCTOR. Let's move to. . .
THE CHAIRMAN. Wait, wait, wait. Can we just
agree on the wording, this is very important.
Manny, can you come up?
MR. REYES. Let's use the word conviction by
final judgment.
THE CHAIRMAN. Fugitive means somebody who
is convicted by final judgment. Okay,. Fugitive
means somebody who is convicted by final
judgment. Insert that on Line 43 after the semi-
colon. Is that approved? No objection, approved
(TSN, Oversight Committee, 07 May 1991).
xxx xxx xxx
THE CHAIRMAN. Andy, saan ba naman itong
amendment on page 2? Sino ba ang gumawa
nito? Okay, on page 2, lines 43 and 44, "fugitive
from justice". What "fugitive"? Sino ba ang
gumawa nito, ha?
MR. SANCHEZ. Yes, I think, well, last time, Mr.
Chairman, we agree to clarify the word "fugitive".
THE CHAIRMAN. "Fugitive from justice means a
person" ba ito, ha?
MR. SANCHEZ. Means a person...
THE CHAIRMAN. Ha?
HON. REYES. A person who has been
convicted.
THE CHAIRMAN; Yes, fugitive from justice,
oo. Fugitive from justice shall mean or means
one who has been convicted by final judgment. It
means one who has been convicted by final
judgment.
HON. DE PEDRO. Kulang pa rin ang ibig sabihin
niyan.
THE CHAIRMAN. Ano? Sige, tingnan natin.
HON. DE PEDRO. Kung nasa loob ng presuhan,
fugitive pa rin siya?
THE CHAIRMAN. O, tama na yan, fugitive from
justice. He has been convicted by final judgment,
meaning that if he is simply in jail and because
he put up, post bail, but the case is still being
reviewed, that is not yet conviction by final
judgment. 3
The Oversight Committee evidently entertained serious apprehensions on
the possible constitutional infirmity of Section 40(e) of Republic Act No. 7160
if the disqualification therein meant were to be so taken as to embrace those
who merely were facing criminal charges. A similar concern was expressed
by Senator R. A. V. Saguisag who, during the bicameral conference
committee of the Senate and the House of Representatives, made this
reservation:
. . . de ipa-refine lang natin 'yung language especially 'yung, the scope of
fugitive. Medyo bothered ako doon, a. 4
The Oversight Committee finally came out with Article 73 of the Rules and
Regulations Implementing the Local Government Code of 1991. It provided:
Art. 73. Disqualifications. — The following persons shall be
disqualified from running for any elective local position:
(a) . . .
(e) 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.5 (Emphasis supplied)
Private respondent reminds us that the construction placed upon law by the
officials in charge of its enforcement deserves great and considerable weight
(Atlas Consolidated Mining and Development Corp. vs. CA, 182 SCRA 166,
181). The Court certainly agrees; however, when there clearly is no obscurity
and ambiguity in an enabling law, it must merely be made to apply as it is so
written. An administrative rule or regulation can neither expand nor constrict
the law but must remain congruent to it. The Court believes and thus
holds, albeit with some personal reservations of the ponente (expressed
during the Court's en banc deliberations), that Article 73 of the Rules and
Regulations Implementing the Local Government Code of 1991, to the extent
that it confines the term "fugitive from justice" to refer only to a person (the
fugitive) "who has been convicted by final judgment." is an inordinate and
undue circumscription of the law.
Unfortunately, the COMELEC did not make any definite finding on whether or
not, in fact, private respondent is a "fugitive from justice" as such term must
be interpreted and applied in the light of the Court's opinion. The omission is
understandable since the COMELEC dismissed outrightly the petition for quo
warranto on the basis instead of Rule 73 of the Rules and Regulations
promulgated by the Oversight Committee. The Court itself, not being a trier of
facts, is thus constrained to remand the case to the COMELEC for a
determination of this unresolved factual matter.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FRISCO HOLGADO, defendant-appellant.
Mauricio Carlos for appellant.
Assistant Solicitor General Manuel P. Barcelona and Solicitor Felix V.
Makasiar for appellee.
MORAN, C.J.:
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." On may 8, 1948, the day set for the trial, the trial court proceeded as
follows:
Court:
        Is this the case ready for trial?

WHEREFORE, the questioned resolutions of the Commission on Elections Fiscal:

are REVERSED and SET ASIDE, and the case is hereby REMANDED to the
Commission which is DIRECTED to proceed and resolve the case with         I am ready, your honor.
dispatch conformably with the foregoing opinion. No special pronouncement
on costs. Court: — to the accused.

SO ORDERED. Q. do you have an attorney or are you going to plead guilty? — A. I

have no lawyer and I will plead guilty.

Court:

        Arraign the accused.

Note:

        Interpreter read the information to the accused in the local

dialect after which he was asked this question.

G.R. No. L-2809             March 22, 1950 Q. What do you plead? — A. I plead guilty, but I was instructed by
one Mr. Ocampo.
 Q. Who is that Mr. Ocampo, what is his complete name? — A. Mr.
Numeriano Ocampo.
        The provincial fiscal is hereby ordered to investigate that man.
Fiscal:
        I have investigated this case and found out that this Ocampo
has nothing to do with the case and I found no evidence against this
Ocampo.
Court:
        Sentenced reserved.
Two days later, or on May 10, 1948, the trial court rendered the following
judgment:
[Criminal Case No. V-118]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRISCO
HOLGADO defendant-appellant.
SLIGHT ILLEGAL DETENTION
SENTENCE
The accused, Frisco Holgado, stands charged with the crime of
kidnapping and serious illegal detention in the following
INFORMATION
That on or about December 11, 1947, in the municipality of
Concepcion, Province of Romblon, Philippines and within the
jurisdiction of this Honorable Court, the said accused being a
private individual, did then and there wilfully, unlawfully and
feloniously, and without justifiable motive, kidnap and detain
one Artemia Fabreag in the house of Antero Holgado for
about 8 hours thereby depriving said Artemia Fabreag of her
personal liberty.
Contrary to law.
This case is called for trial on May 8, 1948. Upon arraignment the
accused pleaded guilty to the information above described.
The offense committed by the accused is kidnapping and serious
illegal detention as defined by article 267 of the Revised Penal Code
as amended by section 2 of Republic Act No. 18 and punished
by reclusion temporal in it minimum period to death. Applying
indeterminate sentence law the penalty shall be  prision mayor in its
maximum degree to reclusion temporal in the medium degree as
minimum, or ten years (10) and one (1) day of prision mayor to
twenty (20) years, with the accessory penalties provided for by law,
with costs. The accused is entitled to one-half of his preventive
imprisonment.
It must be noticed that in the caption of the case as it appears in the
judgment above quoted, the offense charged is named SLIGHT ILLEGAL
DETENTION while in the body of the judgment if is said that the accused
"stands charged with the crime of kidnapping and serious illegal detention."
In the formation filed by the provincial fiscal it is said that he "accuses Frisco
Holgado of the crime of slight illegal detention." The facts alleged in said
information are not clear as to whether the offense is named therein or
capital offense of "kidnapping and serious illegal detention" as found by the
trial judge in his judgment. Since the accused-appellant pleaded guilty and
no evidence appears to have been presented by either party, the trial judge
must have deduced the capital offense from the facts pleaded in the
information.
Under the circumstances, particularly the qualified plea given by the accused
who was unaided by counsel, it was not prudent, to say the least, for the trial
court to render such a serious judgment finding the accused guilty of a
capital offense, and imposing upon him such a heavy penalty as ten years
and one day of prision mayor to twenty years, without absolute any evidence
to determine and clarify the true facts of the case.
The proceedings in the trial court are irregular from the beginning. It is
expressly provided in our rules of Court, Rule 112, section 3, that:
If the defendant appears without attorney, he must be informed by
the court that it is his right to have attorney being arraigned., and
must be asked if he desires the aid of attorney, the Court must
assign attorney de oficio to defend him. A reasonable time must be
allowed for procuring attorney.
Under this provision, 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 record
discloses that said court did not inform the accused of his right to have an
attorney nor did it ask him if he desired the aid of one. 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.
It must be added, in the instant case, that the accused who was unaided by
counsel pleaded guilty but with the following qualification: "but I was
instructed by one Mr. Ocampo." The trial court failed to inquire as to the true
import of this qualification. the record does not show whether the supposed
instructions was real and whether it had reference to the commission of the
offense or to the making of the plea guilty. No investigation was opened by
the court on this matter in the presence of the accused and there is now no
way of determining whether the supposed instruction is a good defense or
may vitiate the voluntariness of the confession. Apparently the court became
satisfied with the fiscal's information that he had investigated Mr. Ocampo
and found that the same had nothing to do with this case. Such attitude of
the court was wrong for the simple reason that a mere statement of the fiscal
was not sufficient to overcome a qualified plea of the accused. But above all,
the court should have seen to it that the accused be assisted by counsel
specially because of the qualified plea given by him and the seriousness of
the offense found to be capital by the court.
The judgment appealed from is reversed and the case is remanded to the
Court below for a new arraignment and a new trial after the accused is
apprised of his right to have and to be assisted by counsel. So ordered.
Baltazar D. Amion, complainant, vs. Judge Roberto S.
Chiongson, Branch 50, Regional Trial Court, Bacolod
City, Respondent.
DECISION
MARTINEZ, J.:
A verified complaint dated August 29, 19961 was filed by Baltazar
D. Amion with this Court on October 7, 1996 charging Judge
Roberto S. Chiongson, Regional Trial Court (RTC), Branch 50,
Bacolod City with Ignorance of the law and Oppression relative to
Criminal Case No. 94-159772 pending in said trial court and in
which complainant is the accused.
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 own
retained counsel in the person of Atty. Reynaldo C. Depasucat.
Accused-complainant explains that respondent judge appointed
another lawyer in the person of Atty. Manuel Lao Ong of the Free
Legal Aid to act as counsel de oficio for the scheduled hearing of
the aforecited criminal case on March 28, and 29 1996. He further
avers that his retained counsel was ready for hearing on said dates
but on March 27, 1996, the day before the scheduled hearing, he
was informed that Atty. Depasucat was ill.
It was for this reason that accused-complainant was not
represented by his defense lawyer in the scheduled hearing which
prompted respondent judge to appoint Free Legal Aid lawyer Atty.
Manuel Lao Ong. Notwithstanding complainant-accuseds vehement
opposition, respondent judge proceeded with the trial on March 28,
1996 with Atty. Ong representing the complainant-accused as
counsel de oficio. He also claims that Atty. Ong did not have
sufficient knowledge of the case and that no prior conference was
held between said counsel de oficio and himself.
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.
Consequently, complainant-accused filed a Manifestation and
Urgent Motion2 stating therein that he is not accepting the legal
services of counsel de oficio Atty. Ong since he can afford to hire a
counsel de parte of his own choice. He further states that
respondent judge is not fair and just and does not have the cold
neutrality of an impartial judge. He likewise asseverates that
respondent judge is ignorant of the basic law which makes him
unfit to be a judge in any judicial tribunal.
Complainant-accused also alludes oppression to respondent judge
when the latter was still a Municipal Trial Judge of MTCC, Branch 3,
Bacolod City. Complainant was then the offended party in a
criminal case for Slander and it took a year before respondent
judge decided to dismiss the same. He complains that now that he
is the accused in Criminal Case No. 94-15772, respondent judge
appears to be "very active" and wants the case to be terminated
immediately.
In addition, accused-complainant charges respondent judge with
gross ignorance of the law when the latter, as then municipal trial
judge of Bacolod City, heard Criminal Case No. 55099 for violation
of B.P. 22 against accused-complainant in the absence of his
counsel.
In a resolution dated March 12, 1997,3 this Court required
respondent judge to file his Comment on the aforementioned
charges.
Judge Roberto S. Chiongson, in his Comment dated April 21,
1997,4 explained that accused-complainant would not have filed
the administrative case had he acceded to the latters plea for his
inhibition which he denied, there being no ground therefor. He
claimed that accused-complainant is a police officer charged in
Criminal Case No. 94-15772 for having allegedly killed a fellow
policeman on January 24, 1994. From the time he assumed office
as Presiding Judge of said court on November 27, 1995, other than
the arraignment of accused- complainant on September 25, 1995
before Judge Emma Labayen (former judge of said court) in which
accused-complainant pleaded not guilty, the case has not moved.
When respondent judge set the case for hearing on January 9,
1996, trial was not held because accused-complainants counsel
Atty. Depasucat, was not feeling well. The hearing was reset to
January 19, 1996 with a warning that no further postponement
would be entertained. On said date of hearing, Atty. Depasucat
again failed to appear in court. In order to avoid further delay, the
court appointed Atty. Apollo Jacildo of the Public Attorneys Office
(PAO) as counsel de oficio. Atty. Jacildo, however, filed a
Manifestation explaining that it is the policy of their office not to
represent a party who has retained the services of a counsel of his
own choice.
At the next scheduled hearing of February 21, 1996,5 accused-
complainants counsel de parte still did not show up in court, thus,
prompting private complainant Mrs. Antonietta Vaflor (the victims
wife) to speak in open court and pour out all her frustration about
the long delay in the resolution of the case.
In view of the fact that Mrs. Vaflor and another government
witness, PO3 Richard Dejores, both reside at Escalante, about 70
to 80 kilometers from Bacolod City, and that the appearance of
Atty. Depasucat remained uncertain, Judge Chiongson appointed
Atty. Manuel Lao-Ong from the Free Legal Aid Office to represent
accused-complainant. The court, however, made it of record that
the appointment of Atty. Ong was without prejudice to the
appearance of counsel de parte.6 Due to the continued absence of
Atty. Depasucat, the counsel de parte, Atty. Ong, represented the
accused-complainant at the March 28, 1996 hearing which was
opposed by the accused in a Manifestation and Motion filed on
March 29, seeking the nullification of the March 28, 1998 hearing
and the inhibition of Judge Chiongson. The hearings were then
rescheduled on May 13 and 17, 1996.
On May 8, 1996, accused-complainants counsel, Atty. Depasucat,
filed a motion for postponement alleging that the motion for
inhibition should be resolved and that he would not be available on
the rescheduled dates for hearings as he would be out of the
country during those times.
An order denying the accused-complainants Motion for Inhibition
and Motion to Set Aside the proceedings of March 28, 1996 was
issued by the court on July 18, 1996 on the ground that the claim
of bias and prejudice was without legal basis.7cräläwvirtualibräry
At the scheduled hearing on August 1, 1996, Atty. Depasucat
asked the court that he be allowed to withdraw as counsel de
parte of the accused-complainant causing further delay. The trial of
the case was again reset to September 2, 5, and 6, 1996 with a
warning that the court will not grant any further postponement and
that if the accused-complainant was still without counsel, a
counsel de oficio will be appointed.
Thereafter, the accused-complainant engaged the services of
different counsels who continued to adopt the dilatory tactics
utilized by the previous counsel de parte.
Atty. Rosslyn Morana, who entered his appearance as counsel on
September 2, 1996, filed on October 14, 1996 a Motion for
Voluntary Inhibition of respondent judge on account of a pending
administrative case against the latter. On October 24, 1996, Atty.
Morana submitted an Explanation to the court stating that he could
not represent the accused-complainant as the latter failed to give
him the records of the case.
On November 14, 1996, the prosecution filed a motion to cite the
accused in contempt for filing a series of motions for inhibition and
for filing an administrative case against the presiding judge which
are plain acts of harassment.
Atty. Salvador Sabio entered his appearance as counsel for the
accused-complainant on December 2, 1996 and asked for the
cancellation of the scheduled hearings on December 5 and 6, 1996
as he had to study the case. The court granted the request for
postponement of Atty. Sabio and reset the case on January 24,
1997 with a strong warning that it will not allow any further
dilatory postponement. In the afternoon of January 23, 1997, the
court received another motion for postponement filed by Atty.
Sabio requesting for the cancellation of the January 24 hearing.
The court, considering the same as another delaying tactic,
immediately issued an order denying the motion. In spite of the
denial of the motion for postponement, Atty. Sabio failed to
appear.
On February 4, 1997, accused-complainant again asked for the
voluntary inhibition of the presiding judge which the court again
denied for being merely a dilatory scheme.
On March 24, 1997, when the case was called for hearing, Atty.
Sabio informed the court that he received a written note from the
accused-complainant discharging him as counsel, to which the
court respondent by ruling that Atty. Sabio would only be allowed
to withdraw as accused-complainants lawyer upon the entry of
appearance of a new defense counsel.
In a Resolution of the Court of Appeals promulgated on April 29,
1997, Judge Chiongson was required to submit a COMMENT 8 on a
Petition for Certiorari and Mandamus filed by accused-complainant.
Said document has also been submitted to the Court as
Supplemental Comment to this Administrative
Case.9cräläwvirtualibräry
Respondent judge reiterated his belief that his appointment of a
counsel de oficio to represent the accused-complainant is justified
because of the vexatious and oppressive delay on the latters part
who has been represented by a counsel de parte who refuses or
fails to appear during hearings. He averred that the records of the
case will show that the accused-complainant and his lawyers have
employed every means fair, but mostly foul, to delay the resolution
of Criminal Case No. 94-15772. He added that the Petition
for Certiorari and the Administrative Case were filed for the
purpose of not only delaying the resolution of the case but also to
pressure him into inhibiting himself.
As to the allegation of oppression in connection with s criminal case
for slander where accused-complainant was the alleged offended
party while respondent judge was then the Municipal Trial Judge of
MTC, Branch 3, Bacolod City to which the case was being tried,
Judge Chiongson belies the same. He explains that the prosecution
in the said case had rested while the defense filed a demurrer
which was granted.
He narrates that the case for slander was filed by herein accused-
complainant against Mrs. Esparcia, a school teacher and sister of a
victim alleged to have been killed by the accused-complainant,
when said Mrs. Esparcia told the accused-complainant Murderer,
why are you not in jail or words to that effect. This was made when
accused-complainant was seen roaming around the vicinity of the
police station when he was supposed to be a detention prisoner.
Accordingly, respondent judge granted the Demurrer on the finding
of the court that the utterance of Mrs. Esparcia was not slanderous
but was merely an expression of exasperation and disgust.
On the charge of Gross Ignorance of the law, for having tried
Criminal Case No. 55099 for violation of B.P. 22 against accused-
complainant in the absence of counsel, respondent judge asserts
that accused-complainant has nothing to do with said criminal case
as can be gleaned from the Order relied upon as basis for the
aforementioned charge.
Respondent judge concludes that the sequence of events
hereinabove discussed, exposes clearly the false and dissembled
charges filed against him as well as the determined efforts of the
accused-complainant and his counsel to frustrate the ends of
justice.
We find this administrative complaint devoid of merit.
Verily, the facts and circumstances of this case point to the
pervasive and prevaricated procrastination of the proceedings
undertaken by the accused-complainant and his counsel. Contrary
to what accused-complainant would want to impress upon this
Court, it seems that he has been the oppressor while respondent
judge Roberto Chiongson appears to be the oppressed. Through
the course of the proceedings in the subject criminal case,
accused-complainant had filed several Motions for Inhibition, a
Petition for Certiorari and Mandamus and this administrative
complaint with the view of delaying the eventual disposition of the
case.
A Memorandum of the Office of the Court Administrator (OCA)
dated January 14, 199810 noted that Criminal Case No. 94-15772
has been pending for almost four (4) years already and the
prosecution has yet to rest its case. Complainant has thrown every
strategy in the book to delay the trial. x x x
The claim of accused-complainant that respondent judges
appointment of a counsel de oficio constitutes a clear violation of
his right to due process and a deprivation of his constitutional right
to be defended by counsel of his own choice cannot be
countenanced by this Court.
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
investigation11 rather than one who is the accused in criminal
prosecution.12cräläwvirtualibräry
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.
As held by this Court in the case of People vs.
Barasina:13cräläwvirtualibräry
Withal, the word preferably under Section 12(1), Article 3 of
the 1987 Constitution does not convey the message that the
choice of a lawyer by a person under investigation is
exclusive as to preclude other equally competent and
independent attorneys from handling his defense. If the rule
were otherwise, then, the tempo of a custodial
investigation, will be solely in the hands of the accused who
can impede, nay, obstruct the progress of the interrogation
by simply selecting a lawyer, who for one reason or another,
is not available to protect his interest. This absurd scenario
could not have been contemplated by the framers of the
charter
Applying this principle enunciated by the Court, we may likewise
say that the accuseds 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.14
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.15cräläwvirtualibräry
Moreover, there is no denial of the right to counsel where a
counsel de oficio was appointed during the absence of the accuseds
counsel de parte pursuant to the courts desire to finish the case as
early as practicable under the continuous trial
system.16cräläwvirtualibräry
Thus, it has been held by this Court in the case of Lacambra v.
Ramos:17cräläwvirtualibräry
The Court cannot help but note the series of legal
maneuvers resorted to and repeated importunings of the
accused or his counsel, which resulted in the protracted trial
of the case, thus making a mockery of the judicial process,
not to mention the injustice caused by the delay to the
victims family.
Undoubtedly, it was accused-complainants own strategic
machinations which brought upon the need for the appointment of
a counsel de oficio in as much as the criminal case had been
dragging on its lethargic course.
As to the charges of oppression and gross ignorance of the law
against respondent judge relative to cases under him while he was
still in the Municipal Trial Court, the same have been sufficiently
answered in the Comments submitted in this case. The explanation
by the respondent judge indicate that the aforesaid allegations
have neither legal nor factual basis and that the conclusions made
therein are merely conjectural.
The actuation of respondent judge in this murder does not warrant
reproach and reprimand, but in fact, merits the acknowledgment
and approval of this Court. Such manifestation of zeal clearly show
respondent judges ardent determination to expedite the case and
render justice.
The Code of Judicial Conduct mandates that a judge should
administer justice impartially and without delay.18 A judge should
always be imbued with a high sense of duty and responsibility in
the discharge of his obligation to promptly administer
justice.19cräläwvirtualibräry
WHEREFORE, in view of the foregoing, the Court RESOLVED to:
1. DISMISS the administrative complaint against Judge Roberto S.
Chiongson of RTC, Branch 50, Bacolod City for lack of merit.
2. IMPOSE a FINE of FIVE THOUSAND PESOS (P5,000.00) and ADMONISH
accused-complainant Baltazar D. Amion for filing a malicious and
unmeritorious complaint against Judge Roberto S. Chiongson to delay and
prolong the prosecution of the case.
3. DIRECT Judge Roberto S. Chiongson to continue hearing the case and
finally dispose of the same with utmost dispatch.
SO ORDERED.
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, Branch 5, 1 disposed of
Criminal Case No. 13336-R; thus:
WHEREFORE, the Court 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 as charged and hereby sentences EACH of them to
suffer an indeterminate penalty of TWENTY (20) YEARS
of reclusion temporal, as minimum, to FORTY (40) YEARS
of reclusion perpetua, as maximum; to indemnify, jointly and
severally, the heirs of the deceased Jonathan Calpito y Castro in
the sums of P50,000.00 for the latters death; P35,700.00 as
consequential damages; and P100,000.00 as moral damages, plus
their proportionate shares in the costs.
"In the service of their sentence, the said accused shall be credited
with their preventive imprisonment under the terms and conditions
prescribed in Article 29 of the Revised Penal Code, as amended.
"Conformably with Section 1, Rule 111 of the 1985 Rules on
Criminal Procedure, as amended, the corresponding filing fee for
the P100,000.00 moral damages herein awarded shall constitute a
first lien on this judgment.
"The evidence knife, Exhibit `B, is hereby declared forfeited in
favor of the Government.
"Pursuant to Circular No. 4-92-A of the Court Administrator, the
Warden of the City Jail of Baguio is directed to immediately
transfer the same accused to the custody of the Bureau of
Corrections, Muntinlupa, Metro Manila.
"Let a copy of this Decision be furnished the Warden of the City Jail
of Baguio for his information and guidance.
"There being no indication that the remaining accused, Jesus
Mendoza, and several John Does could be arrested/identified and
arrested shortly, let the case against them be, as it is hereby,
archived without prejudice to its prosecution upon their
apprehension.
"SO ORDERED.2cräläwvirtualibräry
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 down to Harrison Road behind the Melvin Jones
grandstand to grab a taxicab. The area was well-lighted. Wanting
to partake of some "fishballs," Calpito and Gosil approached a
fishball vendor about three to four meters away. The two returned
with three sticks of fishballs worth fifteen pesos. When Calpito
counted the change for his 100-peso bill, he saw that he had only
been handed back thirty five pesos. Confronted by Calpito and
Gosil, the fishball vendor would not admit that he had short-
changed Calpito.
Herbert Soriano, a civil engineer driving a passenger-type jeep on
his way to Loakan from the Dominican Hill, was seen passing by.
Adjaro, his neighbor, hailed him. Soriano positioned his jeep
around four or five meters from where Gosil and Calpito were still
having an argument with the fishball vendor. Soriano called out to
the two to board the jeep but they ignored him. Moments later,
Soriano saw eight men rushing towards Gosil and Calpito from the
direction of the taxicab-stand behind his jeep. Some of the men
later backed out but four of them pursued Calpito who, meanwhile,
had started to retreat from the group. The four men, however,
succeeded in cornering Calpito. Soriano saw Calpito fall to the
ground and thought that the latter had just been weakened by the
men's punches but, when Calpito was carried on board his jeep,
Soriano realized that Calpito had been stabbed.
Adjaro saw no less than eight men approach and aggressively
confront Calpito and Gosil. Seeing that his friends were
outnumbered, Adjaro shouted at Calpito and Gosil to run
posthaste. Adjaro promptly boarded Sorianos jeep. From where he
sat, Adjaro could see appellant Emilio Senoto embracing Calpito
from behind and appellants Salvador Quitlong and Ronnie Quitlong
holding Calpitos right hand and left hand, respectively. Calpito
struggled unsuccessfully to free himself. Suddenly, appellant
Ronnie Quitlong stabbed Calpito at the left side of the body just
below the nipple. Once the three men had released their hold on
Calpito, the latter fell to the ground. Despite the condition that
Calpito was already in, his assailants still went on hitting him with
their feet.
Police officers Jerry Patacsil, Arthur Viado and Nito Revivis were on
foot patrol that evening. Attracted by the commotion along
Harrison Road, the police officers hurriedly proceeded to the
brightly-lighted place and saw Calpito lying on the ground. Three of
the malefactors started to flee upon seeing the approaching police
officers but the rest kept on with their attack on Calpito. Patacsil
drew out his service firearm and told the attackers to freeze.
Seeing that the victim had bloodstains on his left chest, Patacsil
advised the victims companions to rush him to the hospital.
Soriano, Gosil and Adjaro took Calpito to the Baguio General
Hospital on board Sorianos jeep.
The police officers brought accused-appellants to the police station.
SPO1 Gabriel Isican prepared the complaint assignment
sheet6 before turning them over to the investigation division. SPO4
Avelino Tolean, officer-in-charge of the police investigation division
on the 4:00 p.m. to 12:00 midnight shift, also received a call from
the Baguio General Hospital about the incident. SPO4 Tolean, along
with SPO1 Rafael Ortencio, Jr., and two "Bombo" radio reporters,
went to the hospital where Calpito was by then in the operating
room. The police officers interviewed Adjaro and Gosil at the
hospitals emergency room and then repaired to the crime scene
and searched the area. Recovered near the flowering plants beside
the electric post was a stainless knife 7 with bloodstains on its
blade. Adjaro recognized the knife to be the one used in stabbing
Calpito. SPO4 Gerardo Tumbaga prepared Form 1 of the National
Crime Reporting System indicating that accused-appellants were
arrested and that a certain Mendoza escaped and went into hiding.
The report also disclosed that Adjaro and Gosil had a drinking
spree with the victim at the Genesis Folkden before the stabbing
incident. SPO4 Tumbaga based his findings on the documents
attached to the records of the case.
That same evening of 20 October 1994, at 8:55, Calpito died at the
Baguio General Hospital. Dr. Kathryna Ayro, the hospitals medico-
legal officer, conducted the autopsy on the victim upon the request
of Dr. Samuel Cosme, the attending surgeon, and of First Assistant
City Prosecutor Herminio Carbonell, with the consent of a brother
of Calpito.8 Dr. Ayro found a solitary stab wound that penetrated
Calpitos left thoracic cavity at the level of the 5 th intercostal space
that caused a "through and through" laceration of his anterior
pericardium and the apex of the left ventricle of his heart. 9 Dr.
Ayro indicated the cause of Calpitos death as being one of
hypovolemic shock secondary to stab wound. 10 She opined that a
knife, single or double bladed, must have been used in inflicting
the stab wound. Abrasions were also found on different parts of
Calpitos body.
Precy Calpito, the mother of the victim, testified that the family
had spent the amount of P37,500.0011 for his wake, burial and 9-
day prayers. Her youngest sons death left her losing hope in life
and "feeling very badly."
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.22cräläwvirtualibräry
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 x 24 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 "A. Right hand, sir.
having been enabled to observe that elusive and incommunicable
evidence of the deportment of witnesses on the stand. 27 Findings of "Q. How about Ronnie Quitlong?
the trial court, following that assessment, must be given the
highest degree of respect absent compelling reasons to conclude "A. His left hand.
otherwise.28cräläwvirtualibräry
"Q. After Jonathan Calpito was held by these three persons and other,
The Court is not, at this time and in this instance, disposed to what happened next?
deviate from the foregoing rule. In the first place, Lito Adjaro, the
eyewitness in the stabbing of Calpito, has steadfastly stood by, "A. They mauled (binugbog) Jonathan Calpito.
even on rebuttal, to his story on the commission of the crime. A
witness who testifies in a categorical, straightforward and "Q. Did you notice what part of the body was hit and boxed by these three
spontaneous manner, as well as remains consistent on cross and persons?
rebuttal examination, is not likely to be an incredible
witness.29 Secondly, the defense has failed to establish any ill "A. His body and his face.
motive on the part of Adjaro that would have prompted him to
testify wrongly against appellants. Where there is no evidence to "Q. What did Jonathan Calpito do, if any, when he is being held by these
indicate that the prosecution witness has been actuated by any three persons and others?
improper motive, it would be hard to reject the supposition that a
person will not prevaricate and cause damnation to one who has "A. He was struggling, sir.
brought him no harm.30 Finally, Herbert Soriano and the police,
who have testified seeing the already wounded Calpito lying on the "Q. Was he able to free himself from the helds (sic) of these persons?
ground and still being attacked, both corroborate Adjaros positive
identification of appellants as the persons who did maul Calpito. "A. No more, sir.

After positively pointing to appellants in open court to be the "Q. What do you mean no more?
persons who ganged up on Calpito, Adjaro testified on their
respective participations in the commission of the crime; thus: "A. He was not able to free himself.

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

"Q. Now, you pointed to Emilio Senoto, Jr. as one of the persons who held "A. They held him tightly, he could not struggle.
the deceased Jonathan Calpito. What part of the body of Jonathan Calpito
did he hold? "Q. And what happened next when you said he could no longer struggle?

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

"Q. How about Salvador Quitlong whom you also identified in Court. What "Q. Did you see the person who stabbed him?
part of the body of Jonathan Calpito did he hold?
"A. I saw, sir.
"A. I saw him hold his hand.
"Q. Will you be able to identify him?
"Q. What hand was held by Salvador Quitlong?
"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.
Under Article 248 of the Revised Penal Code, the crime of murder
is punishable by reclusion temporal maximum to death. There
being neither aggravating nor mitigating circumstances to
appropriately appreciate in this case, appellant Ronnie Quitlong, as
principal, shall suffer the penalty of reclusion perpetua. The
indeterminate penalty of twenty (20) years of reclusion temporal,
as minimum to forty (40) years of reclusion perpetua, as
maximum, has been imposed by the trial court on the premise
that reclusion perpetua is a divisible penalty. In the Court's
Resolution of 09 January 1995, clarifying its decision38 in People vs.
Lucas,39 the Court has said that -
x x x although Section 17 of R.A. No. 7659 has fixed the duration
of reclusion perpetua from twenty (20) years and one (1) day to
forty (40) years, there was no clear legislative intent to alter its
original classification as an indivisible penalty. It shall then remain
as an indivisible penalty.40cräläwvirtualibräry
The two accomplices, appellants Salvador Quitlong and Emilio
Senoto, Jr., shall be subject to the imposition of the penalty next
lower in degree than reclusion temporal maximum to death or,
accordingly, prision mayor in its maximum period to reclusion
temporal in its medium period. Absent any mitigating or
aggravating circumstance, the penalty that may be imposed
is reclusion temporal minimum. Applying the Indeterminate
Sentence Law to them, each may be held to suffer the
indeterminate sentence of anywhere from prision correccional in its
maximum period to prision mayor in its medium period, as the
minimum penalty, to anywhere within the range of reclusion
temporal minimum, as the maximum penalty.
The trial court correctly imposed the payment of a civil indemnity
of P50,000.00 in favor of the heirs of the victim. The consequential
(actual) damages in the amount of P35,700.00 not having been
substantiated, except for the amount P12,000.00 paid to the
memorial chapel, is disallowed. The award of moral damages
recoverable under Article 2219(1), in relation to Article 2206, of
the Civil Code is reduced from P100,000.00 to P20,000.00.
WHEREFORE, appellant Ronnie Quitlong is found guilty of the
crime of murder for the killing of Jonathan Calpito and sentenced to
suffer the penalty of reclusion perpetua and further ordered to
indemnify the heirs of the victim in the amount of P50,000.00, to
reimburse them the actual damages of P12,000.00 and to pay
moral damages of P50,000.00. Appellants Salvador Quitlong and
Emilio Senoto, Jr., are found guilty as accomplices in the
commission of the crime, and each shall suffer the indeterminate
sentence of nine (9) years and four (4) months of prision
mayor minimum period, as minimum penalty, to thirteen (13)
years and nine (9) months and ten (10) days of reclusion
temporal minimum period, as maximum penalty. Appellants
Salvador Quitlong and Emilio Senoto, Jr., are also hereby held
solidarily liable with appellant Ronnie Quitlong in the payment of
the damages hereinabove mentioned. Costs against appellants.
SO ORDERED.
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.
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

If the crime of estafa had been consummated, the Government would have
Sandiganbayan in Criminal Case No. 14844 is modified, and, as modified,
been defrauded in the amount of P1,027,321.00. Hence, the applicable
the  petitioner is hereby declared guilty beyond reasonable doubt of the
penalty under Article 315 of the Revised Penal Code would have
complex crime of attempted estafa through falsification of official and
been prision correccional in its maximum period to prision mayor  in its
commercial documents and, applying the Indeterminate Sentence Law, is
minimum period, with an additional one (1) year for every P10,000.00 in
hereby sentenced to suffer an imprisonment penalty ranging from TWO (2)
excess of the first P22,000.00; provided, that the total penalty should not
YEARS, FOUR (4) MONTHS, and ONE (1) DAY of  prision
exceed twenty years.
correccional  medium as minimum to TEN (10) YEARS and ONE (1) DAY
of prision mayor  maximum as maximum, with the accessories thereof and to
Since what was established was only attempted estafa, then the applicable pay a fine of Two Thousand Pesos (P2,000.00).
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),
Costs against the petitioner.
of the Revised Penal Code, viz., arresto mayor  in its medium period
to arresto mayor in its maximum period.
SO ORDERED.
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