Case #1 [G.R. No. L-9723. June 28, 1957.] the testimony of one eyewitness supported by some circumstantial evidence.
mony of one eyewitness supported by some circumstantial evidence. This witness is Ernesto
THE PEOPLE OF THE PHILIPPINES v. GERONIMO SOLIMAN Y BUENAVENTURA
alias EMONG and SOFRONIO PALIN Y PAZ alias POLONIO
Appellants were charged with murder before the Court of First Instance of Manila and were
sentenced each to suffer the extreme penalty of death, to indemnify the heirs of the deceased in the
sum of P6,000, and to pay the costs. By operation of law, the case was brought before this Court for
review.
In the morning of April 29, 1955, at about 2 o’clock, while Ernesto Basa was sleeping in a pushcart
placed along the sidewalk of Sto. Cristo Street near the southeast corner of that street and Azcarraga,
Manila, and Ernesto Balaktaw was also sleeping on a box situated near the pushcart, with their heads
opposite each other, Balaktaw was awakened when someone kicked his hand. Upon awakening,
Balaktaw saw Sofronio Palin proceed toward the head of Ernesto Basa and hold the latter by the
shoulder at which moment his companion Geronimo Soliman approached Ernesto Basa and stabbed
him many times with a balisong. Thereafter, the assailants ran away.
Balaktaw took Basa to a calesa and proceeded to a police outpost at the corner of Azcarraga and
Elcano Streets and reported the incident to Patrolman Tolentino. The patrolman boarded the calesa
and directed the driver to proceed to Mary Johnston Hospital. From there, the three transferred to an
ambulance and proceeded to the North General Hospital where Basa was treated, but he expired in
the morning of the same day. At 4 o’clock in the afternoon, Dr. Mariano Lara, Chief Medical
Examiner of the Manila Police Department, made an autopsy of the deceased and found that the
cause of death is as follows: "Profuse exsanguinating hemorrhage (only 850 cc. recovered) and shock
due to multiple (7) stab wounds, two (2) being fatal, piercing the pyloric portion of the stomach,
duodenum, jejunum, hepatic flexure of colon and right kidney."
Appellant Soliman testified that prior to the present incident, or on April 21, 1955, the deceased tried
to borrow his pushcart and, as he was not able to lend it to him, the deceased boxed him and as a
consequence, he suffered physical injuries; that that incident was settled amicably on the same day by
the companions of the deceased; that on another occasion the deceased beat up Soliman with an iron
pipe and the latter had to undergo medical treatment; that in the night of April 29, 1955, after he had
eaten in Folgueras St., he proceeded to a truck of the United Bus Line of which he was a watchman;
that while he was passing Sto. Cristo Street, the deceased called him and asked for a drink; that he
told the deceased he had no money, but the deceased forced him to give him money and even boxed
him; that because the deceased had three companions, he pulled out his knife and upon seeing this,
the three companions ran away; that he and the deceased fought in the course of which he stabbed
him; that while they were fighting, one Sofronio Palin came and separated them; and that when they
were separated Palin advised him to surrender to the police, so he went home and asked his brothers
to accompany him to the Meisic Station.
Appellant Palin merely corroborated the testimony of his co- accused by declaring that while he was
eating at a restaurant at the corner of Sto. Cristo and Azcarraga Streets in the morning in question, he
saw Soliman and the deceased grappling with each other; that he tried to separate them and
succeeded in doing so; that after the two were separated, he asked Soliman to surrender and the latter
heeded his advice.
The two appellants are charged with a very serious crime as in fact they were sentenced to the
extreme penalty of death. It is therefore important that we scrutinize carefully the evidence on which
the conviction is made to depend. In this case, we notice that the conviction is mainly predicated on
Balaktaw. Whether this witness has told the truth or not in narrating the aggression which led to the
death of the victim, much depends upon the degree of his credibility. As usual, this is the function of
the trial court. Because of its opportunity to observe the conduct, demeanor and manner of testifying
of the witness, the trial court is in a better position to pass upon and gauge their credibility.
In this respect, we notice that the trial court has been most careful in taking notice not only of the
conduct of the witness during the trial, but of other extraneous matters that may help in reaching a
correct conclusion. The Court found the testimony of Balaktaw worthy of credence not only because
it is in part corroborated by the testimony of appellant Soliman himself who admitted having inflicted
the wounds that caused the death of the victim, (although by way of self-defense) but also because it
is supported by the nature of the wounds as found by Dr. Lara in his autopsy. Thus, in brushing aside
the defense of appellant Soliman because the same runs counter to the nature and character of the
wounds inflicted on the deceased, the court said:
"The contention of the defense that the wounds were inflicted while the deceased Ernesto Basa was
struggling or grappling with Geronimo is belied by the testimony of the medical examiner and by the
nature and character of the wounds on the body of the deceased, as may be seen in Exhibits D, D-1,
D-2 and D-3. An examination of the pictures of the deceased as appears in Exhibits D-1 and D-2,
especially the wound that appears a little above he duodenum, shows clearly that the wounds were
inflicted when the deceased was in a lying position as testified to by the witness for the prosecution,
Ernesto Balaktaw. The wound that may be seen under the left armpit of the deceased could not have
been possibly inflicted if the deceased was in a standing position. This wound under the left armpit is
the result of the stab when the deceased was in a lying position with his hand extended upwards in
self-defense."cralaw virtua1aw library
On the other hand, the trial court made also careful observation of the conduct and demeanor of the
two accused during the trial and in this respect, made the following observation:
"During the course of the hearing, in order to give every iota evidence its proper probatory value, the
Court had paid special attention to the manner in which the accused and the witnesses testified, as
well as their general appearance. The accused Soliman is a well-built man, robust and apparently
strong. The accused Palin a little bigger than the other accused and of stronger physique. The
deceased, as it appears from the pictures, while he may be slightly higher in stature than the accused
Soliman, has a thinner constitution and much smaller than the accused Palin. Judging these two
accused from the manner they testified in court, their apparent indifference to all the court
proceedings in spite of the seriousness of the crime charged against them, and the manner of
testifying in short, curt and confused manner, convinced this Court that they gave little importance to
the case against them and to the proceeding in court."
The defense, however, claims that the testimony of Ernesto Balaktaw should not be given credit
because it is self-contradictory and inconsistent with the testimony of Pat. Tolentino and Det. Senen.
But, aside from the fact that the alleged contradictions refer to unimportant details or circumstances,
they can be explained and reconciled. This was done by the Solicitor General in his brief. After going
over the explanation and reconciliation made by this official, we are satisfied that the alleged
contradictions or inconsistencies cannot destroy the credibility of the witness.
An important flaw pointed out by the defense refers to the manner the witness identified the two
defendants. It is claimed that when this witness was made to identify accused Soliman he pointed to
accused Palin and when he was asked to identify the latter, he pointed to the former. And he also
committed a mistake in designating the nicknames of the two accused.
While it is true that at the start of his testimony this witness was confused in identifying the accused
by their names, however, when he was asked by the court immediately thereafter to put his hands on
each of them, he was able to identify them correctly. The court then made the following observation:
"Witness identified both accused. At the time when he pointed to the accused he apparently made a
mistake may be due to the fact that the accused were both seated together and when be pointed to the
accused he might have been out of his sense of direction." pp. 2-3, t.s.n., Lloren.)
The defense also claims that the trial court erred in not granting its motion for new trial based on
newly discovered evidence which consists of the criminal record of prosecution witness Ernesto
Balaktaw. This claim is untenable. In the first place, the criminal record of Balaktaw cannot be
considered as newly discovered evidence because the same was available to the defense much prior
to the trial of this case. It appears that said record can be obtained from the Criminal Identification
Section of the Manila Police Department for, with the exception of one conviction rendered on
September 1, 1955, all the other convictions and charges date as far back as January 19, 1955, months
prior to the trial of the instant case. In the second place, the fact that a person has been previously
convicted of a crime does not necessarily disqualify him as a witness for he may still prove to be a
truthful one.
The claim that the trial court also erred in not allowing the defense to prove that the deceased had a
violent, quarrelsome or provocative character cannot also deserve consideration. While good or bad
moral character may be availed of as an aid to determine the probability or improbability of the
commission of an offense (Section 15, Rule 123), such is not necessary in a crime of murder where
the killing is committed through treachery or premeditation. The proof of such character may only be
allowed in homicide cases to show "that it has produced a reasonable belief of imminent danger in the
mind of the accused and a justifiable conviction that a prompt defensive action was necessary."
(Moran, Comments on the Rules of Court, 1952 ed., Vol. 3, p. 126. This rule does not apply to cases
of murder.
While the Court is of the opinion that the evidence is sufficient to convict both appellants of the
crime charged, some members however expressed doubt as to the propriety of imposing the extreme
penalty and so, for lack of the necessary number of votes, the Court has resolved to impose upon
them the penalty of reclusion perpetua.
Wherefore, the decision appealed from is modified in the sense of imposing upon appellants merely
the penalty of reclusion perpetua, affirming the decisions in all other respects, with costs.
Case #2 G.R. No. 128096 January 20, 1999
PANFILO M. LACSON v. THE EXECUTIVE SECRETARY, THE SANDIGANBAYAN,
OFFICE OF THE SPECIAL PROSECUTOR, THE DEPARTMENT OF JUSTICE, MYRNA
ABALORA, NENITA ALAP-AP, IMELDA PANCHO MONTERO, and THE PEOPLE OF
THE PHILIPPINES
The constitutionality of Sections 4 and 7 of Republic Act No. 8249 — an act which further defines
the jurisdiction of the Sandiganbayan — is being challenged in this petition for prohibition and
mandamus. Petitioner Panfilo Lacson, joined by petitioners-intervenors Romeo Acop and Francisco
Zubia, Jr., also seeks to prevent the Sandiganbayan from proceedings with the trial of Criminal Cases
Nos. 23047-23057 (for multiple murder) against them on the ground of lack of jurisdiction.
The antecedents of this case, as gathered from the parties' pleadings and documentary proofs, are as
follows:
In the early morning of May 18, 1995, eleven (11) persons believed to be members of the Kuratong
Baleleng gang, reportedly an organized crime syndicate which had been involved in a spate of bank
robberies in Metro Manila, where slain along Commonwealth Avenue in Quezon City by elements of
the Anti-Bank Robbery and Intelligence Task Group (ABRITG) headed by Chieff Superintendent
Jewel Canson of the Philippine National Police (PNP). The ABRITG was composed of police
officers from the Traffic Management Command (TMC) led by petitioner-intervenor Senior
Superintendent Francisco Zubia, Jr.; Presidential Anti-Crime Commission — Task Force Habagat
(PACC-TFH) headed by petitioner Chief Superintendent Panfilo M. Lacson; Central Police District
Command (CPDC) led by Chief Superintendent Ricardo de Leon; and the Criminal Investigation
Command (CIC) headed by petitioner-intervenor Chief Superintendent Romeo Acop.
Acting on a media expose of SPO2 Eduardo delos Reyes, a member of the CIC, that what actually
transpired at dawn of May 18, 1995 was a summary execution (or a rub out) and not a shoot-out
between the Kuratong Baleleng gang members and the ABRITG, Ombudsman Aniano Desierto
formed a panel of investigators headed by the Deputy Ombudsman for Military Affairs, Bienvenido
Blancaflor, to investigate the incident. This panel later absolved from any criminal liability all the
PNP officers and personal allegedly involved in May 18, 1995 incident, with a finding that the said
incident was a legitimate police operation.1
However, a review board led by Overall Deputy Ombudsman Francisco Villa modified modified the
Blancaflor panel's finding and recommended the indictment for multiple murder against twenty-six
(26) respondents, including herein petitioner and intervenors. The recommendation was approved by
the Ombudsman except for the withdrawal of the charges against Chief Supt. Ricardo de Leon.
Thus, on November 2, 1995, petitioner Panfilo Lacson was among those charged as principal in
eleven (11) information for murder2 before the Sandiganbayan's Second Division, while intervenors
Romeo Acop and Francisco Zubia, Jr. were among those charged in the same informations as
accessories after-in-the-fact.
Upon motion by all the accused in the 11 information,3 the Sandiganbayan allowed them to file a
motion for reconsideration of the Ombudsman's action.4
After conducting a reinvestigation, the Ombudsman filed on March 1, 1996 eleven (11) amended
informations5 before the Sandiganbayan, wherein petitioner was charged only as an accessory,
together with Romeo Acop and Francisco Zubia, Jr. and other. One of the accused6 was dropped
from the case.
On March 5-6, 1996, all the accused filed separate motions questioning the jurisdiction of the
Sandiganbayan, asserting that under the amended informations, the cases fall within the jurisdiction
of the Regional Trial Court pursuant to Section 2 (paragraphs a and c) of Republic Act No. 7975.7
They contend that the said law limited the jurisdiction of the Sandiganbayan to cases where one or
more of the "principal accused" are government officials with Salary Grade (SG) 27 or higher, or
PNP officials with the rank of Chief Superintendent (Brigadier General) or higher. The highest
ranking principal accused in the amended informations has the rank of only a Chief Inspector, and
none has the equivalent of at least SG 27.
Thereafter, in a Resolution 8 dated May 8, 1996 (promulgated on May 9, 1996), penned by Justice
Demetriou, with Justices Lagman and de Leon concurring, and Justices Balajadia and Garchitorena
dissenting,9 the Sandiganbayan admitted the amended information and ordered the cases transferred
to the Quezon City Regional Trial Court which has original and exclusive jurisdiction under R.A.
7975, as none of the principal accused has the rank of Chief Superintendent or higher.
On May 17, 1996, the Office of the Special Prosecutor moved for a reconsideration, insisting that the
cases should remain with the Sandiganbayan. This was opposed by petitioner and some of the
accused.
While these motions for reconsideration were pending resolution, and even before the issue of
jurisdiction cropped up with the filing of the amended informations on March 1, 1996, House Bill
No. 229910 and No. 109411 (sponsored by Representatives Edcel C. Lagman and Lagman and
Neptali M. Gonzales II, respectively), as well as Senate Bill No. 84412 (sponsored by Senator Neptali
Gonzales), were introduced in Congress, defining expanding the jurisdiction of the Sandiganbayan.
Specifically, the said bills sought, among others, to amend the jurisdiction of the Sandiganbayan by
deleting the word "principal" from the phrase "principal accused" in Section 2 (paragraphs a and c) of
R.A. No. 7975.
These bills were consolidated and later approved into law as R.A. No. 824913 by the President of the
Philippines on February 5, 1997.
Subsequently, on March 5, 1997, the Sandiganbayan promulgated a Resolution14 denying the motion
for reconsideration of the Special Prosecutor, ruling that it "stands pat in its resolution dated May 8,
1996."
On the same day15 the Sandiganbayan issued and ADDENDUM to its March 5, 1997 Resolution, the
pertinent portion of which reads:
After Justice Lagman wrote the Resolution and Justice Demetriou concurred in it, but before Justice
de Leon. Jr. rendered his concurring and dissenting opinion, the legislature enacted Republic Act
8249 and the President of the Philippines approved it on February 5, 1997. Considering the pertinent
provisions of the new law, Justices Lagman and Demetriou are now in favor of granting, as they are
now granting, the Special Prosecutor's motion for reconsideration. Justice de Leon has already done
so in his concurring and dissenting opinion.
xxx xxx xxx
Considering that three of the accused in each of these cases are PNP Chief Superintendents: namely,
Jewel T. Canson, Romeo M. Acop and Panfilo M. Lacson, and that trial has not yet begun in all these
cases — in fact, no order of arrest has been issued — this court has competence to take cognizance of
these cases.
To recapitulate, the net result of all the foregoing is that by the vote of 3 of 2, the court admitted the
Amended Informations in these cases by the unanimous vote of 4 with 1 neither concurring not
dissenting, retained jurisdiction to try and decide the cases16 (Empahasis supplied)
Petitioner now questions the constitutionality of Section 4 of R.A. No. 8249, including Section 7
thereof which provides that the said law "shall apply to all cases pending in any court over which trial
has not begun as to the approval hereof." Petitioner argues that:
a) The questioned provisions of the statute were introduced by the authors thereof in bad faith as it
was made to precisely suit the situation in which petitioner's cases were in at the Sandiganbayan by
restoring jurisdiction thereof to it, thereby violating his right to procedural due process and the equal
protection clause of the Constitution. Further, from the way the Sandiganbayan has foot-dragged for
nine (9) months the resolution of a pending incident involving the transfer of the cases to the
Regional Trial Court, the passage of the law may have been timed to overtake such resolution to
render the issue therein moot, and frustrate the exercise of petitioner's vested rights under the old
Sandiganbayan law (RA 7975)
b) Retroactive application of the law is plan from the fact that it was again made to suit the peculiar
circumstances in which petitioner's cases were under, namely, that the trial had not yet commenced,
as provided in Section 7, to make certain that those cases will no longer be remanded to the Quezon
City Regional Trial Court, as the Sandiganbayan alone should try them, thus making it an ex post
facto legislation and a denial of the right of petitioner as an accused in Criminal Case Nos. 23047-
23057 to procedural due process.
c) The title of the law is misleading in that it contains the aforesaid "innocuous" provisions in
Sections 4 and 7 which actually expands rather than defines the old Sandiganbayan law (RA 7975),
thereby violating the one-title one-subject requirement for the passage of statutes under Section 26
(1), Article VI of the Constitution.17
For their part, the intervenors, in their petition-in-intervention, add that "while Republic Act No. 8249
innocuously appears to have merely expanded the jurisdiction of the Sandiganbayan, the introduction
of Section 4 and 7 in said statute impressed upon it the character of a class legislation and an ex-post
facto statute intended to apply specifically to the accused in the Kuratong Baleleng case pending
before the Sandiganbayan.18 They further argued that if their case is tried before the Sandiganbayan
their right to procedural due process would be violated as they could no longer avail of the two-tiered
appeal to the Sandiganbayan, which they acquired under R.A. 7975, before recourse to the Supreme
Court.
Both the Office of the Ombudsman and the Solicitor-General filed separate pleadings in support of
the constitutionality of the challenged provisions of the law in question and praying that both the
petition and the petition-in-intervention be dismissed.
This Court then issued a Resolution19 requiring the parties to file simultaneously within a
nonextendible period of ten (10) days from notice thereof additional memoranda on the question of
whether the subject amended informations filed a Criminal Case Nos. 23047-23057 sufficiently
allege the commission by the accused therein of the crime charged within the meaning Section 4 b of
Republic Act No. 8249, so as to bring the said cases within the exclusive original jurisdiction of the
Sandiganbayan.
The parties, except for the Solicitor General who is representing the People of the Philippines, filed
the required supplemental memorandum within the nonextendible reglementary period.
The established rule is that every law has in its favor the presumption of constitutionality, and to
justify its nullification there must be a clear and unequivocal breach of the Constitution, not a
doubtful and argumentative one. 20 The burden of proving the invalidity of the law lies with those
who challenge it. That burden, we regret to say, was not convincingly discharged in the present case.
The creation of the Sandiganbayn was mandated in Section 5, Article XIII of the 1973 Constitution,
which provides:
Sec. 5. The Batasang Pambansa shall create a special court, to be known as Sandiganbayan, which
shall have jurisdiction over criminal and civil cases involving graft and corrupt practices and such
other offenses committed by public officers and employees including those in government-owned or
controlled corporations, in relation to their office as may be determined by law.
The said special court is retained in the new (1987) Constitution under the following provisions in
Article XI, Section 4:
Sec. 4. The present anti-graft court known as the Sandiganbayan shall continue to function and
exercise its jurisdiction as now or hereafter may be provided by law.
Pursuant to the constitutional mandate, Presidential Decree No. 148621 created the Sandiganbayan.
Thereafter, the following laws on the Sandiganbayan, in chronological order, were enacted: P.D. No.
1606,22 Section 20 of Batas Pambansa Blg. 123,23 P.D. No. 1860,24 P.D. No. 1861,25 R.A. No.
7975, 26 and R.A. No. 8249.27 Under the latest amendments introduced by Section 4 of R.A. No.
8249, the Sandiganbayan has jurisdiction over the following cases:
Sec 4. Section 4 of the same decree [P.D. No. 1606, as amended] is hereby further amended to read
as follows:
Sec. 4. Jurisdiction — The Sandiganbayan shall exercise exclusive original jurisdiction in all cases
involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Titile VII, Book II of the Revised
Penal Code, where one or more of the accused are officials occupying the following positions in the
government, whether in a permanent, acting or interim capacity, at the time of the commission of the
offense:
(1) Officials of the executive branch occupying the positions of regional director and higher,
otherwise classified as Grade "27" and higher, of the Compensation and Position Classification Act
of 1989 (Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial
treasurers, assessors, engineers, and other provincial department heads;
(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors,
engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the position of consul and higher;
(d) Philippine Army and air force colonels, naval captains, and all officers of higher rank;
(e) Officers of the Philippines National Police while occupying the position of provincial director and
those holding the rank of senior superintendent or higher.
(f) City of provincial prosecutors and their assistants, and officials and prosecutors in the Office of
the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees or managers of government-owned or controlled corporations,
state universities or educational institutions or foundations;
(2) Members of Congress or officials thereof classified as-Grade "27" and up under the
Compensation and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the Constitution;
(4) Chairman and members of the Constitutional Commissions, without prejudice to the provisions of
the Constitution;
(5) All other national and local officials classified as Grade "27" or higher under the Compensation
and Position Classification Act of 1989.
b. Other offenses or felonies whether simple or complexed with other crimes committed by the public
officials and employees mentioned in Subsection a of this section in relation to their office.
c. Civil and criminal cases filed pursuant to and connection with Executive Orders Nos. 1,2, 14 and
14-A, issued in 1986.
In cases where none of the accused are occupying positions corresponding to salary Grade "27" or
higher, as prescribed in the said Republic Act 6758, or military and PNP officers mentioned above,
exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan
trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their
jurisdictions as privided in Batas Pambansa Blg. 129, as amended.
The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or
orders of regional trial courts whether in the exercise of their own original jurisdiction or of their
appellate jurisdiction as herein provided.
The Sandiganbayan shall have exclusive original jurisdiction over petitions of the issuance of the
writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and
processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo
warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1,
2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be
exclusive of the Supreme Court.
The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the
Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for
review to the Court of Appeals, shall apply to appeals and petitions for review filed with the
Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the
Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the
People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14, and 4-A,
issued in 1986.
In case private individuals are charged as co-principals, accomplices or accessories with the public
officers or employee, including those employed in government-owned or controlled corporations,
they shall be tried jointly with said public officers and employees in the proper courts which shall
exercise exclusive jurisdiction over them.
xxx xxx xxx (Emphasis supplied)
Sec. 7 of R.A. No. 8249 states:
Sec. 7. Transitory provision — This act shall apply to all cases pending in any court over which trial
has not begun as of the approval hereof. (Emphasis supplied)
The Sandiganbayan law prior to R.A. 8249 was R.A. 7975. Section 2 of R.A. 7975 provides:
Sec. 2. Section 4 of the same decree [Presidential Decree No. 1606, as amended) is hereby further
amended to read as follows:
Sec 4. Jurisdiction — The Sandiganbayan shall exercise exclusive original jurisdiction in all cases
involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised
Penal Code, where one or more of the pricipal accused are afficials occupying the following positions
in the government, whether in a permanent, acting or interim capacity, at the time of the commission
of the offense:
(1) Officials of the executive branch occupying the positions of regional director and higher,
otherwise classified as Grade "27" and higher, of the Compensation and Position Classification Act
of 1989 (Republic Act No. 6758), specifically including:
(a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial
treasurers, assessors, engineer, and other provincial department heads;
(b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors,
engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the position of consul and higher;
(d) Philippine Army and air force colonels, naval captains, and all officers of higher rank;
(e) PNP chief superintendent and PNP officers of higher rank;
(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of
the Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of government-owned or controlled corporations,
state universities or educational institutions or foundations;
(2) Members of Congress or officials thereof classified as Grade "27" and up under the Compensation
and Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the Constitution;
(4) Chairman and members of the Constitutional Commissions, without prejudice to the provisions of
the Constitution;
(5) All other national and local officials classified as Grade "27" or higher under the Compensation
and Position Classification Act of 1989.
b. Other offenses or felonies committed by the public officials and employees mentioned in
Subsection a of this section in relation to their office.
c. Civil and criminal cases files pursuant to and in connection with Executive Order Nos. 1, 2, 14, and
4-A.
In cases where none of the principal accused are occupying positions corresponding to salary Grade
"27" or higher, as presribed in the said Republic Act 6758, or PNP officers occupying the rank of
superintendent or higher, or their equivalent, exclusive jurisdiction thereof shall be vested in the
proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial
court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa
Blg. 129.
The Sandiganbayan shall exercise exclusive appellate jurisdiction on appelas from the final judgment,
resolutions or orders of regular court where all the accused are occupying positions lower than grade
"27," or not otherwise covered by the preceding enumeration.

xxx xxx xxx
In case private individuals are charged as co-principals, accomplices or accessories with the public
officers or employees, including those employed in government-owned or controlled corporations,
they shall be tried jointly with said public officers and employees in the proper courts which shall
have exclusive jurisdiction over them.
xxx xxx xxx (Emphasis supplied)
Sec. 7 of R.A. No. 7975 reads:
Sec. 7. Upon the effectivity of this Act, all criminal cases in which trial has not begun in the
Sandiganbayan shall be referred to the proper courts.
Under paragraphs a and c, Section 4 of R.A. 8249, the word "principal" before the word "accused"
appearing in the above-quoted Section 2 (paragraphs a and c) of R.A. 7975, was deleted. It is due to
this deletion of the word "principal" that the parties herein are at loggerheads over the jurisdiction of
the Sandiganbayan. Petitioner and intervenors, relying on R.A. 7975, argue that the Regional Trial
Court, not the Sandiganbayan, has jurisdiction over the subject criminal cases since none of the
principal accused under the amended information has the rank of Superintendent28 or higher. On the
other hand, the Office of the Ombudsman, through the Special Prosecutor who is tasked to represent
the People before the Supreme Court except in certain cases,29 contends that the Sandiganbayan has
jurisdiction pursuant to R.A. 8249.
A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under the exclusive original
jurisdiction of the Sandiganbayan, the following requisites must concur: (1) the offense committed is
a violation of (a) R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act), (b) R.A. 1379
(the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of the Revised Penal Code
(the law on bribery),30 (d) Executive Order Nos. 1, 2, 14, and 14-A, issued in 1986 (sequestration
cases),31 or (e) other offenses or felonies whether simple or complexed with other crimes; (2) the
offender comitting the offenses in items (a), (b), (c) and (e) is a public official or employee32 holding
any of the positions enumerated in paragraph a of Section 4; and (3) the offense committed is in
relation to the office.
Considering that herein petitioner and intervenors are being charged with murder which is a felony
punishable under Title VIII of the Revised Penal Code, the governing on the jurisdictional offense is
not paragraph a but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to "other offenses
or felonies whether simple or complexed with other crimes committed by the public officials and
employees mentioned in subsection a of (Section 4, R.A. 8249) in relation to their office. "The
phrase" other offenses or felonies" is too broad as to include the crime of murder, provided it was
committed in relation to the accused's officials functions. Thus, under said paragraph b, what
determines the Sandiganbayan's jurisdiction is the official position or rank of the offender — that is,
whether he is one of those public officers or employees enumerated in paragraph a of Section 4. The
offenses mentioned in pargraphs a, b and c of the same Section 4 do not make any reference to the
criminal participation of the accused public officer as to whether he is charged as a principal,
accomplice or accessory. In enacting R.A. 8249, the Congress simply restored the original provisions
of P.D. 1606 which does not mention the criminal participation of the public officer as a requisite to
determine the jurisdiction of the Sandiganbayan.
Petitioner and entervenors' posture that Section 4 and 7 of R.A. 8249 violate their right to equal
protection of the law33 because its enactment was particularly directed only to the Kuratong Baleleng
cases in the Sandiganbayan, is a contention too shallow to deserve merit. No concrete evidence and
convincing argument were presented to warrant a declaration of an act of the entire Congress and
signed into law by the highest officer of the co-equal executive department as unconstitutional. Every
classification made by law is presumed reasonable. Thus, the party who challenges the law must
present proof of arbitrariness.34
It is an established precept in constitutional law that the guaranty of the equal protection of the laws
is not violated by a legislation based on reasonable classification. The classification is reasonable and
not arbitrary when there is concurrence of four elements, namely:
(1) it must rest on substantial distinction;
(2) it must be germane to the purpose of the law;
(3) must not be limited to existing conditions only, and
(4) must apply equaly to all members of the same class,35
all of which are present in this case.
The challengers of Sections 4 and 7 of R.A. 8249 failed to rebut the presumption of constitutionality
and reasonables of the questioned provisions. The classification between those pending cases
involving the concerned public officials whose trial has not yet commence and whose cases could
have been affected by the amendments of the Sandiganbayan jurisdiction under R.A. 8249, as against
those cases where trial had already started as of the approval of the law, rests on substantial
distinction that makes real differences.36 In the first instance, evidence against them were not yet
presented, whereas in the latter the parties had already submitted their respective proofs, examined
witnesses and presented documents. Since it is within the power of Congress to define the jurisdiction
of courts subject to the constitutional limitations,37 it can be reasonably anticipated that an alteration
of that jurisdiction would necessarily affect pending cases, which is why it has to privide for a
remedy in the form of a transitory provision. Thus, petitioner and intervenors cannot now claim that
Sections 4 and 7 placed them under a different category from those similarly situated as them.
Precisely, paragraph a of Section 4 provides that it shall apply to "all case involving" certain public
officials and, under the transitory provision in Section 7, to "all cases pending in any court." Contrary
to petitioner and intervenors' argument, the law is not particularly directed only to the Kuratong
Baleleng cases. The transitory provision does not only cover cases which are in the Sandiganbayan
but also in "any court." It just happened that Kuratong Baleleng cases are one of those affected by the
law. Moreover, those cases where trial had already begun are not affected by the transitory provision
under Section 7 of the new law (R.A. 8249).
In their futile attempt to have said sections nullified, heavy reliance is premised on what is perceived
as bad faith on the part of a Senator and two Justices of the Sandiganbaya38 for their participation in
the passage of the said provisions. In particular, it is stressed that the Senator had expressed strong
sentiments against those officials involved in the Kuratong Baleleng cases during the hearings
conducted on the matter by the committee headed by the Senator. Petitioner further contends that the
legislature is biased against him as he claims to have been selected from among the 67 million other
Filipinos as the object of the deletion of the word "principal" in paragraph a, Section 4 of P.D. 1606,
as amended, and of the transitory provision of R.A. 8249.39 R.A 8249, while still a bill, was acted,
deliberated, considered by 23 other Senators and by about 250 Representatives, and was separately
approved by the Senate and House of Representatives and, finally, by the President of the
Philippines.
On the perceived bias that the Sandiganbayan Justices allegedly had against petitioner during the
committe hearings, the same would not constitute sufficient justification to nullify an otherwise valid
law. Their presence and participation in the legislative hearings was deemed necessary by Congress
since the matter before the committee involves the graft court of which one is the head of the
Sandiganbayan and the other a member thereof. The Congress, in its plenary legislative powers, is
particularly empowered by the Constitution to invite persons to appear before it whenever it decides
to conduct inquiries in aid of legislation.40
Petitioner and entervenors further further argued that the retroactive application of R.A. 8249 to the
Kuratong Baleleng cases constitutes an ex post facto law41 for they are deprived of their right to
procedural due process as they can no longer avail of the two-tiered appeal which they had allegedly
acquired under R.A. 7975.
Again, this contention is erroneous. There is nothing ex post facto in R.A. 8249. In Calder v. Bull,42
an ex post facto law is one —
(a) which makes an act done criminal before the passing of the law and which was innocent when
committed, and punishes such action; or
(b) which aggravates a crime or makes it greater than when it was committed; or
(c) which changes the punishment and inflicts a greater punishment than the law annexed to the crime
when it was committed.
(d) which alters the legal rules of evidence and recieves less or different testimony that the law
required at the time of the commission of the offense on order to convict the defendant.43
(e) Every law which, in relation to the offense or its consequences, alters the situation of a person to
his disadvantage.44
This Court added two more to the list, namely:
(f) that which assumes to regulate civil rights and remedies only but in effect imposes a penalty or
deprivation of a right which when done was lawful;
(g) deprives a person accussed of crime of some lawful protection to which he has become entitled,
such as the protection of a former conviction or acquittal, or a proclamation of a amnesty.45
Ex post facto law, generally, prohibits retrospectivity of penal laws.46 R.A. 8249 is not penal law. It
is a substantive law on jurisdiction which is not penal in character. Penal laws are those acts of the
Legislature which prohibit certain acts and establish penalties for their violations;47 or those that
define crimes, treat of their nature, and provide dor their punishment.48 R.A 7975, which amended
P.D. 1606 as regards the Sandiganbayan's jurisdiction, its mode of appeal and other procedural
matters, has been declared by the Court as not a penal law, but clearly a procedural statute, i.e. one
which prescribes rules of procedure by which courts applying laws of all kinds can properly
administer justice.49 Not being a penal law, the retroactive application of R.A. 8249 cannot be
challenged as unconstitutional.
Petitioner's and entervenors' contention that their right to a two-tiered appeal which they acquired
under R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The same contention
has already been rejected by the court several times50 considering that the right to appeal is not a
natural right but statutory in nature that can be regulated by law. The mode of procedure provided for
in the statutory right of appeal is not included in the prohibition against ex post facto laws.51 R.A.
8249 pertains only to matters of procedure, and being merely an amendatory statute it does not
partake the nature of an ex post facto law. It does not mete out a penalty and, therefore, does not
come within the prohibition.52 Moreover, the law did not alter the rules of evidence or the mode of
trial.53 It has been ruled that adjective statutes may be made applicable to actions pending and
unresolved at the time of their passage.54
In any case; R.A. 8249 has preserved the accused's right to appeal to the Supreme Court to review
questions of law.55 On the removal of the intermediate review of facts, the Supreme Court still has
the power of review to determine if he presumption of innocence has been convincing overcome.56
Another point. The challenged law does not violate the one-title-one-subject provision of the
Constitution. Much emphasis is placed on the wording in the title of the law that it "defines" the
Sandiganbayan jurisdiction when what it allegedly does is to "expand" its jurisdiction. The expantion
in the jurisdiction of the Sandiganbayan, if it can be considered as such, does not have to be expressly
stated in the title of the law because such is the necessary consequence of the amendments. The
requirement that every bill must only have one subject expressed in the title57 is satisfied if the title
is comprehensive enough, as in this case, to include subjects related to the general purpose which the
statute seeks to achieve.58 Such rule is liberally interpreted and should be given a practical rather
than a technical construction. There is here sufficient compliance with such requirement, since the
title of R.A. 8249 expresses the general subject (involving the jurisdiction of the Sandiganbayan and
the amendment of P.D. 1606, as amended) and all the provisions of the law are germane to that
general subject.59 The Congress, in employing the word "define" in the title of the law, acted within
its power since Section 2, Article VIII of the Constitution itself empowers the legislative body to
"define, prescribe, and apportion the jurisdiction of various courts.60
There being no unconstitutional infirmity in both the subject amendatory provision of Section 4 and
the retroactive procedural application of the law as provided in Section 7 of R.A. No. 8249, we shall
now determine whether under the allegations in the Informations, it is the Sandiganbayan or Regional
Trial Court which has jurisdictions over the multiple murder case against herein petitioner and
entervenors.
The jurisdiction of a court is defined by the Constitution or statute. The elements of that definition
must appear in the complaint or information so as to ascertain which court has jurisdiction over a
case. Hence the elementary rule that the jurisdiction of a court is determined by the allegations in the
complaint or informations,61 and not by the evidence presented by the parties at the trial.62
As stated earlier, the multiple murder charge against petitioner and intervenors falls under Section 4
[paragraph b] of R.A. 8249. Section 4 requires that the offense charged must be committed by the
offender in relation to his office in order for the Sandiganbayan to have jurisdiction over it.63 This
jurisdictional requirement is in accordance with Section 5, Article XIII of the 1973 Constitution
which mandated that the Sandiganbayan shall have jurisdiction over criminal cases committed by the
public officers and employees, including those in goverment-owned or controlled corporations, "in
relation to their office as may be determined by law." This constitutional mandate was reiterated in
the new (1987) Constitution when it declared in Section 4 thereof that the Sandiganbayan shall
continue to function and exercise its jurisdiction as now or hereafter may be provided by law.
The remaining question to be resolved then is whether the offense of multiple murder was committed
in relation to the office of the accussed PNP officers.
In People vs. Montejo,64 we held that an offense is said to have been committed in relation to the
office if it (the offense) is "intimately connected" with the office of the offender and perpetrated
while he was in the performance of his official functions.65 This intimate relation between the
offense charged and the discharge of official duties "must be alleged in the informations."66
As to how the offense charged be stated in the informations, Section 9, Rule 110 of the Revised Rules
of Court mandates:
Sec. 9 Couse of accusation — The acts or omissions complied of as constituting the offense must be
stated in ordinary and concise language without repetition not necessarily in the terms of the statute
defining the offense, but in such from as is sufficient to enable a person of common understanding to
know what offense is intended to be charged, and enable the court to pronounce proper judgment.
(Emphasis supplied)
As early as 1954 we pronounced that "the factor that characterizes the charge is the actual recital of
the facts."67 The real nature of the criminal charge is determined not from the caption or preamble of
the informations nor from the specification of the provision of law alleged to have been violated, they
being conclusions of law, but by the actual recital of facts in the complaint or information.68
The noble object or written accusations cannot be overemphasized. This was explained in U.S. v.
Karelsen: 69
The object of this written accusations was — First; To furnish the accused with such a descretion 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. In order that the 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 particularly 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. (Emphasis supplied)
It is essential, therefore, that the accused be informed of the facts that are imputed to him as "he is
presumed to have no indefendent knowledge of the facts that constitute the offense."70
Applying these legal principles and doctrines to the present case, we find the amended informations
for murder against herein petitioner and intervenors wanting of specific factual averments to show the
intimate relation/connection between the offense charged and the discharge of official function of the
offenders.
In the present case, one of the eleven (11) amended informations71 for murder reads:
AMENDED INFORMATIONS
The undersigned Special Prosecution Officer III. Office of the Ombudsman hereby accuses CHIEF
INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR INSP.
JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE P. ARNADO, SPO4
ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ,
SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, SPO1 OSMUNDO B.
CARINO, CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMEO M. ACOP, CHIEF SUPT.
PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIA JR., SUPT. ALMARIO A.
HILARIO, CHIEF INSP. CESAR O. MANCAO III, CHIEF INSP. GIL L. MENESES, SENIOR
INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR
TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, SPO2 NORBERTO
LASAGA, PO2 LEONARDO GLORIA, and PO2 ALEJANDRO G. LIWANAG of the crime of
Murder as defined and penalize under Article 248 of the Revised Penal Code committed as follows
That on or about May 18, 1995 in Mariano Marcos Avenue, Quezon City Philippines and within the
jurisdiction of his Honorable Court, the accused CHIEF INSP. MICHAEL RAY AQUINO, CHIEF
INSP. ERWIN T. VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G.
DANDAN, SPO4 VICENTE ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V.
PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1
ROBERTO O. AGBALOG, and SPO1 OSMUNDO B. CARINO, all taking advantage of their public
and official positions as officers and members of the Philippine National Police and committing the
acts herein alleged in relation to their public office, conspiring with intent to kill and using firearms
with treachery evident premeditation and taking advantage of their superior strenghts did then and
there willfully unlawfully and feloniously shoot JOEL AMORA, thereby inflicting upon the latter
mortal wounds which caused his instantaneous death to the damage and prejudice of the heirs of the
said victim.
That accused CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMOE M. ACOP, CHIEF
SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIAM JR., SUPT.
ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO II, CHIEF INSP. GIL L. MENESES,
SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR
TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, PO2 ALEJANDRO G.
LIWANAG committing the acts in relation to office as officers and members of the Philippine
National Police are charged herein as accessories after-the-fact for concealing the crime herein above
alleged by among others falsely representing that there where no arrest made during the read
conducted by the accused herein at Superville Subdivision, Paranaque, Metro Manila on or about the
early dawn of May 18, 1995.
CONTRARY LAW.
While the above-quoted information states that the above-named principal accused committed the
crime of murder "in relation to thier public office, there is, however, no specific allegation of facts
that the shooting of the victim by the said principal accused was intimately related to the discharge of
their official duties as police officers. Likewise, the amended information does not indicate that the
said accused arrested and investigated the victim and then killed the latter while in their custody.
Even the allegations concerning the criminal participation of herein petitioner and intevenors as
among the accessories after-the-facts, the amended information is vague on this. It is alleged therein
that the said accessories concelead "the crime herein-above alleged by, among others, falsely
representing that there were no arrests made during the raid conducted by the accused herein at
Superville Subdivision, Paranaque Metro Manila, on or about the early dawn of May 18, 1995." The
sudden mention of the "arrests made during the raid conducted by the accused" surprises the reader.
There is no indication in the amended information that the victim was one of those arrested by the
accused during the "raid." Worse, the raid and arrests were allegedly conducted "at Superville
Subdivision, Paranaque, Metro Manila" but, as alleged in the immediately preceding paragraph of the
amended information, the shooting of the victim by the principal accused occurred in Mariano
Marcos Avenue, Quezon City." How the raid, arrests and shooting happened in the two places far
away from each other is puzzling. Again, while there is the allegation in the amended information
that the said accessories committed the offense "in relation to office as officers and members of the
(PNP)," we, however, do not see the intimate connection between the offense charged and the
accused's official functions, which, as earlier discussed, is an essential element in determining the
jurisdiction of the Sandiganbayan.
The stringent requirement that the charge be set forth with such particularly as will reasonably
indicate the exact offense which the accused is alleged to have committed in relation to his office
was, sad to say, not satisfied. We believe that the mere allegation in the amended information that the
offense was committed by the accused public officer in relation to his office is not sufficient. That
phrase is merely a conclusion between of law, not a factual avernment that would show the close
intimacy between the offense charged and the discharge of the accused's official duties.
In People vs. Magallanes, 72 where the jurisdiction between the Regional Trial Court and the
Sandiganbayan was at issue, we ruled:
jurisdiction, it is these allegations that shall control, and not the evidence presented by the
prosecution at the trial.
In the aforecited case of People vs. Montejo, it is noteworthy that the phrase committed in relation to
public office "does not appear in the information, which only signifies that the said phrase is not what
determines the jurisdiction of the Sandiganbayan. What is controlling is the specific factual
allegations in the information that would indicate the close intimacy between the discharge of the
accused's official duties and the commission of the offense charged, in order to qualify the crime as
having been committed in relation to public office.
Consequently, for failure to show in the amended informations that the charge of murder was
intimately connected with the discharge of official functions of the accused PNP officers, the offense
charged in the subject criminal cases is plain murder and, therefore, within the exclusive original
jurisdiction of the Regional Trial Court,73 not the Sandiganbayan.
WHEREFORE, the constitutionality of Sections 4 and 7 of R.A. 8249 is hereby sustained. The
Addendum to the March 5, 1997 Resolution of the Sandiganbayan is REVERSED. The
Sandiganbayan is hereby directed to transfer Criminal Cases Nos. 23047 to 23057 (for multiple
murder) to the Regional Trial Court of Quezon City which has exclusive original jurisdiction over the
said cases.1âwphi1.nêt
SO ORDERED.

It is an elementary rule that jurisdiction is determined by the allegations in the complaint or

information and not by the result of evidence after trial.

In (People vs) Montejo (108 Phil 613 (1960), where the amended information alleged

Leroy S. Brown City Mayor of Basilan City, as such, has organized groups of police patrol and
civilian commandoes consisting of regular policeman and . . . special policemen appointed and
provided by him with pistols and higher power guns and then established a camp . . . at Tipo-tipo
which is under his command . . . supervision and control where his co-defendants were stationed
entertained criminal complaints and conducted the corresponding investigations as well as assumed
the authority to arrest and detain person without due process of law and without bringing them to the
proper court, and that in line with this set-up established by said Mayor of Basilan City as such, and
acting upon his orders his co-defendants arrested and maltreated Awalin Tebag who denied in
consequence thereof.

we held that the offense charged was committed in relation to the office of the accused because it was
perpetreated while they were in the performance, though improper or irregular of their official
functions and would not have been committed had they not held their office, besides, the accused had
no personal motive in committing the crime thus, there was an intimate connection between the
offense and the office of the accused.

Unlike in Montejo the informations in Criminal Cases Nos. 15562 and 15563 in the court below do
not indicate that the accused arrested and investigated the victims and then killed the latter in the
course of the investigation. The informations merely allege that the accused for the purpose of
extracting or extortin the sum of P353,000.00 abducted, kidnapped and detained the two victims, and
failing in their common purpose they shot; and killed the said victims. For the purpose of determining

Case #3 G.R. No. 176169, November 14, 2008
ROSARIO NASI-VILLAR v. PEOPLE OF THE PHILIPPINES
This is a Petition for Review1 under Rule 45 of the Rules of Court filed by petitioner Rosario Nasi-
Villar assailing the Decision2 dated 27 June 2005 and Resolution3 dated 28 November 2006 of the
Court of Appeals. This case originated from an Information4 for Illegal Recruitment as defined under
Sections 6 and 7 of Republic Act (R.A.)
No. 80425 filed by the Office of the Provincial Prosecutor of Davao del Sur on 5 October 1998 for
acts committed by petitioner and one Dolores Placa in or about January 1993. The Information reads:
That on [sic] or about the month of [January 1993], in the Municipality of Sta. Cruz, Province of
Davao del Sur, Philippines and within the jurisdiction of the Honorable Court, the aforenamed
accused, conspiring together, confederating with and mutually helping one another through
fraudulent representation and deceitful machination, did then and there [willfully], unlawfully and
feloniously recruit Nila Panilag for employment abroad[,] demand and receive the amount of
P6,500.00 Philippine Currency [sic] as placement fee[,] the said accused being a non-licensee or non-
holder of authority to engage in the recruitment of workers abroad to the damage and prejudice of the
herein offended party.
CONTRARY TO LAW.6
On 3 July 2002, after due trial, the Regional Trial Court (RTC), Br. 18, Digos City, Davao del Sur
found the evidence presented by the prosecution to be more credible than that presented by the
defense and thus held petitioner liable for the offense of illegal recruitment under the Labor Code, as
amended.7 The dispositive portion of the decision reads:
WHEREFORE, premises considered, the Court hereby finds accused ROSARIO NASI-VILLAR
GUILTY BEYOND REASONABLE DOUBT of Illegal Recruitment and, in accordance with the
penalty set forth under the Labor Code, as amended, said accused is hereby sentenced to an
indeterminate penalty ranging from FOUR YEARS as minimum to FIVE YEARS as maximum.
On the civil aspect of the case, there being no substantial proof presented to justify a grant of civil
damages, this Court makes no pronouncement thereon.
With respect to accused Ma. Dolores Placa, who is still at large, the records of this case are hereby
sent to the archives to be retrieved in the event that said accused would be apprehended. Issue an alias
warrant of arrest for the apprehension of said accused.
SO ORDERED.8
Petitioner appealed to the Court of Appeals raising as sole issue the alleged error by the trial court in
finding her guilty of illegal recruitment on the basis of the trial court's appreciation of the evidence
presented by the prosecution.
The Court of Appeals, in its Decision dated 27 June 2005,9 following the principle that an appeal in a
criminal case throws the whole case wide open for review, noted that the criminal acts alleged to
have been committed happened sometime in 1993. However, R.A. No. 8042, under which petitioner
was charged, was approved only on 7 June 1995 and took effect on 15 July 1995. Thus, the Court of
Appeals declared that petitioner should have been charged under the Labor Code, in particular Art.
13(b) thereof, and not under R.A. No. 8042. Accordingly, it made its findings on the basis of the
provisions of the Labor Code and found petitioner liable under Art. 38, in relation to Art. 13(b), and
Art. 39 of the Labor Code. The appellate court affirmed with modification the decision of the RTC,
decreeing in the dispositive portion, thus:
WHEREFORE, in view of all the foregoing, the appealed Decision of the Regional Trial Court, 11th
Judicial Region, Br. 18, City of Digos, Province of Davao del Sur, finding Rosario Nasi-Villar guilty
beyond reasonable doubt o the crime of Illegal Recruitment is AFFIRMED with MODIFICATION in
that Rosario Nasi-Villar is ORDERED to pay Nila Panilag the sum of P10,000.00 as temperate
damages.
SO ORDERED.10
On 28 November 2006, the appellate court denied petitioner's motion for reconsideration.11
Hence, petitioner filed the instant petition for review.
Petitioner alleges that the Court of Appeals erred in failing to consider that R.A. No. 8042 cannot be
given retroactive effect and that the decision of the RTC constitutes a violation of the constitutional
prohibition against ex post facto law. Since R.A. No. 8042 did not yet exist in January 1993 when the
crime was allegedly committed, petitioner argues that law cannot be used as the basis of filing a
criminal action for illegal recruitment. What was applicable in 1993 is the Labor Code, where under
Art. 38, in relation to Art. 39, the violation of the Code is penalized with imprisonment of not less
than four (4) years nor more than eight (8) years or a fine of not less than P20,000.00 and not more
than P100,000.00 or both. On the other hand, Sec. 7(c) of R.A. No. 8042 penalizes illegal recruitment
with a penalty of imprisonment of not less than six (6) years and one (1) day but not more than
twelve (12) years and a fine not less than P200,000.00 nor more than P500,000.00. Thus, the penalty
of imprisonment provided in the Labor Code was raised or increased by R.A. No. 8042. Petitioner
concludes that the charge and conviction of an offense carrying a penalty higher than that provided
by the law at the time of its commission constitutes a violation of the prohibition against ex post facto
law and the retroactive application of R.A. No. 8042.
In its Comment12 dated 7 September 2007, the Office of the Solicitor General (OSG) argues that the
Court of Appeals' conviction of petitioner under the Labor Code is correct. While conceding that
there was an erroneous designation of the law violated by petitioner, the OSG stresses that the
designation of the offense in the Information is not determinative of the nature and character of the
crime charged against her but the acts alleged in the Information. The allegations in the Information
clearly charge petitioner with illegal recruitment as defined in Art. 38, in relation to Art. 13(b) of the
Labor Code, and penalized under Art. 39(c) of the same Code. The evidence on record substantiates
the charge to a moral certainty. Thus, while there was an erroneous specification of the law violated
by petitioner in the Information, the CA was correct in affirming the RTC's imposition of the penalty
for simple illegal recruitment under the Labor Code, the OSG concludes.
The petition is denied. We find no reversible error in the decision arrived at by the Court of Appeals.
In Gabriel v. Court of Appeals,13 we held that the real nature of the crime charged is determined, not
from the caption or preamble of the information nor from the specification of the law alleged to have
been violated–these being conclusions of law–but by the actual recital of facts in the complaint or
information. What controls is not the designation but the description of the offense charged. From a
legal point of view, and in a very real sense, it is of no concern to the accused what the technical
name of the crime of which he stands charged is. If the accused performed the acts alleged in the
body of the information, in the manner stated, then he ought to be punished and punished adequately,
whatever may be the name of the crime which those acts constitute.14
In the case at bar, the prosecution established beyond reasonable doubt that petitioner had performed
the acts constituting the offense defined in Art. 38, in relation to Art. 13(b) and punished by Art. 39
of the Labor Code, as alleged in the body of the Information. To prove illegal recruitment, two
elements must be shown, namely: (1) the person charged with the crime must have undertaken
recruitment activities, or any of the activities enumerated in Article 34 of the Labor Code, as
amended; and (2) said person does not have a license or authority to do so.15 Art. 13(b) defines
"recruitment and placement" as "any act of canvassing, enlisting, contracting, transporting, utilizing,
hiring, or procuring workers, and includes referrals, contract services, promising, or advertising for
employment, locally or abroad, whether for profit or not; Provided that any person or entity which, in
any manner, offers or promises for a fee employment to two or more persons, is considered engaged
in recruitment and placement." The trial court found these two elements had been proven in the case
at bar. Petitioner has not offered any argument or proof that countervails such findings.
The basic rule is that a criminal act is punishable under the law in force at the time of its commission.
Thus, petitioner can only be charged and found guilty under the Labor Code which was in force in
1993 when the acts attributed to her were committed. Petitioner was charged in 1998 under an
Information that erroneously designated the offense as covered by R.A. No. 8042, but alleged in its
body acts which are punishable under the Labor Code. As it was proven that petitioner had
committed the acts she was charged with, she was properly convicted under the Labor Code, and not
under R.A. No. 8042.
There is no violation of the prohibition against ex post facto law nor a retroactive application of R.A.
No. 8042, as alleged by petitioner. An ex post facto law is one which, among others, aggravates a
crime or makes it greater than it was when committed or changes the punishment and inflicts a
greater punishment than the law annexed to the crime when committed.16 Penal laws and laws
which, while not penal in nature, nonetheless have provisions defining offenses and prescribing
penalties for their violation operate prospectively. Penal laws cannot be given retroactive effect,
except when they are favorable to the accused.17
R.A. No. 8042 amended pertinent provisions of the Labor Code and gave a new definition of the
crime of illegal recruitment and provided for its higher penalty. There is no indication in R.A. No.
8042 that said law, including the penalties provided therein, would take effect retroactively. A law
can never be considered ex post facto as long as it operates prospectively since its strictures would
cover only offenses committed after and not before its enactment.18 Neither did the trial court nor the
appellate court give R.A. No. 8042 a retroactive application since both courts passed upon petitioner's
case only under the aegis of the Labor Code. The proceedings before the trial court and the appellate
court did not violate the prohibition against ex post facto law nor involved a retroactive application of
R.A. No. 8042 in any way.
WHEREFORE, the petition is DENIED. The assailed Decision dated 27 June 2005 and Resolution
dated 28 November 2006 of the Court of Appeals are AFFIRMED.
SO ORDERED.

Case #4 G.R. No. 100776 October 28, 1993
ALBINO S. CO v. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES
In connection with an agreement to salvage and refloat asunken vessel — and in payment of his share
of the expenses of the salvage operations therein stipulated — petitioner Albino Co delivered to the
salvaging firm on September 1, 1983 a check drawn against the Associated Citizens' Bank, postdated
November 30, 1983 in the sum of P361,528.00.1 The check was deposited on January 3, 1984. It was
dishonored two days later, the tersely-stated reason given by the bank being: "CLOSED
ACCOUNT."
A criminal complaint for violation of Batas Pambansa Bilang 222 was filed by the salvage company
against Albino Co with the Regional Trial Court of Pasay City. The case eventuated in Co's
conviction of the crime charged, and his being sentenced to suffer a term of imprisonment of sixty
(60) days and to indemnify the salvage company in the sum of P361,528.00.
Co appealed to the Court of Appeals. There he sought exoneration upon the theory that it was
reversible error for the Regional Trial Court to have relied, as basis for its verdict of conviction, on
the ruling rendered on September 21, 1987 by this Court in Que v. People, 154 SCRA 160 (1987)3 —
i.e., that a check issued merely to guarantee the performance of an obligation is nevertheless covered
by B.P. Blg. 22. This was because at the time of the issuance of the check on September 1, 1983,
some four (4) years prior to the promulgation of the judgment in Que v. People on September 21,
1987, the delivery of a "rubber" or "bouncing" check as guarantee for an obligation was not
considered a punishable offense, an official pronouncement made in a Circular of the Ministry of
Justice. That Circular (No. 4), dated December 15, 1981, pertinently provided as follows:
2.3.4. Where issuance of bouncing check is neither estafa nor violation of B.P. Blg. 22.
Where the check is issued as part of an arrangement to guarantee or secure the payment of an
obligation, whether pre-existing or not, the drawer is not criminally liable for either estafa or
violation of B.P. Blg. 22 (Res. No. 438, s. 1981, Virginia Montano vs. Josefino Galvez, June 19,
1981; Res. No. 707, s. 1989; Alice Quizon vs. Lydia Calingo, October 23, 1981, Res. No. 769, s.
1981, Alfredo Guido vs. Miguel A. Mateo, et. al., November 17, 1981; Res. No. 589, s. 1981,
Zenaida Lazaro vs. Maria Aquino, August 7, 1981).
This administrative circular was subsequently reversed by another issued on August 8, 1984
(Ministry Circular No. 12) — almost one (1) year after Albino Co had delivered the "bouncing"
check to the complainant on September 1, 1983. Said Circular No. 12, after observing inter alia that
Circular No. 4 of December 15, 1981 appeared to have been based on "a misapplication of the
deliberation in the Batasang Pambansa, . . . (or) the explanatory note on the original bill, i.e. that the
intention was not to penalize the issuance of a check to secure or guarantee the payment of an
obligation," as follows:4
Henceforth, conforming with the rule that an administrative agency having interpreting authority may
reverse its administration interpretation of a statute, but that its review interpretation applies only
prospectively (Waterbury Savings Bank vs. Danaher, 128 Conn., 476; 20 a2d 455 (1941), in all cases
involving violation of Batas Pambansa Blg. 22 where the check in question is issued after this date,
the claim that the check is issued as a guarantee or part of an arrangement to secure an obligation
collection will no longer be considered a valid defense.
Co's theory was rejected by the Court of Appeals which affirmed his conviction. Citing Senarillos v.
Hermosisima, 101 Phil. 561, the Appellate Court opined that the Que doctrine did not amount to the
passage of new law but was merely a construction or interpretation of a pre-existing one, i.e., BP 22,
enacted on April 3, 1979.
From this adverse judgment of the Court of Appeals, Albino Co appealed to this Court on certiorari
under Rule 45 of the Rules of Court. By Resolution dated September 9, 1991, the Court dismissed his
appeal. Co moved for reconsideration under date of October 2, 1991. The Court required comment
thereon by the Office of the Solicitor General. The latter complied and, in its comment dated
December 13, 1991, extensively argued against the merits of Albino Co's theory on appeal, which
was substantially that proffered by him in the Court of Appeals. To this comment, Albino Co filed a
reply dated February 14, 1992. After deliberating on the parties' arguments and contentions, the Court
resolved, in the interests of justice, to reinstate Albino Co's appeal and adjudicate the same on its
merits.
Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal
system of the Philippines," according to Article 8 of the Civil Code. "Laws shall have no retroactive
effect, unless the contrary is provided," declares Article 4 of the same Code, a declaration that is
echoed by Article 22 of the Revised Penal Code: "Penal laws shall have, a retroactive effect insofar
as they favor the person guilty of a felony, who is not a habitual criminal . . .5
The principle of prospectivity of statutes, original or amendatory, has been applied in many cases.
These include: Buyco v. PNB, 961 2 SCRA 682 (June 30, 1961), holding that Republic Act No. 1576
which divested the Philippine National Bank of authority to accept back pay certificates in payment
of loans, does not apply to an offer of payment made before effectivity of the act; Largado v.
Masaganda, et al., 5 SCRA 522 (June 30, 1962), ruling that RA 2613, s amended by RA 3090 on
June, 1961, granting to inferior courts jurisdiction over guardianship cases, could not be given
retroactive effect, in the absence of a saving clause; Larga v. Ranada, Jr., 64 SCRA 18, to the effect
that Sections 9 and 10 of Executive Order No. 90, amending Section 4 of PD 1752, could have no
retroactive application; People v. Que Po Lay, 94 Phil. 640, holding that a person cannot be convicted
of violating Circular No. 20 of the Central, when the alleged violation occurred before publication of
the Circular in the Official Gazette; Baltazar v. C.A., 104 SCRA 619, denying retroactive application
to P.D. No. 27 decreeing the emancipation of tenants from the bondage of the soil, and P.D. No. 316
prohibiting ejectment of tenants from rice and corn farmholdings, pending the promulgation of rules
and regulations implementing P.D. No. 27; Nilo v. Court of Appeals, 128 SCRA 519, adjudging that
RA 6389 whichremoved "personal cultivation" as a ground for the ejectment of a tenant cannot be
given retroactive effect in the absence of a statutory statement for retroactivity; Tac-An v. CA, 129
SCRA 319, ruling that the repeal of the old Administrative Code by RA 4252 could not be accorded
retroactive effect; Ballardo v. Borromeo, 161 SCRA 500, holding that RA 6389 should have only
prospective application; (see also Bonifacio v. Dizon, 177 SCRA 294 and Balatbat v. CA, 205 SCRA
419).
The prospectivity principle has also been made to apply to administrative rulings and circulars, to
wit: ABS-CBN Broadcasting Corporation v. CTA, Oct. 12, 1981, 108 SCRA 142, holding that a
circular or ruling of the Commissioner of Internal Revenue may not be given retroactive effect
adversely to a taxpayer: Sanchez v. COMELEC, 193 SCRA 317, ruling that Resolution No. 90-0590
of the Commission on Elections, which directed the holding of recall proceedings, had no retroactive
application; Romualdez v. CSC, 197 SCRA 168, where it was ruled that CSC Memorandum Circular
No. 29, s. 1989 cannot be given retrospective effect so as to entitle to permanent appointment an
employee whose temporary appointment had expired before the Circular was issued.
The principle of prospectivity has also been applied to judicial decisions which, "although in
themselves not laws, are nevertheless evidence of what the laws mean, . . . (this being) the reason
whyunder Article 8 of the New Civil Code, 'Judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system . . .'"
So did this Court hold, for example, in Peo. v. Jabinal, 55 SCRA 607, 611:
It will be noted that when appellant was appointed Secret Agent by the Provincial Government in
1962, and Confidential Agent by the Provincial commander in 1964, the prevailing doctrine on the
matter was that laid down by Us in People v. Macarandang (1959) and People v. Lucero (1958).6 Our
decision in People v. Mapa,7 reversing the aforesaid doctrine, came only in 1967. The sole question
in this appeal is: should appellant be acquitted on the basis of Our rulings in Macarandang and
Lucero, or should his conviction stand in view of the complete reverse of the Macarandang and
Lucero doctrine in Mapa? . . .
Decisions of this Court, although in themselves not laws, are nevertheless evidence of what the laws
mean, and this is the reason why under Article 8 of the New Civil Code, "Judicial decisions applying
or interpreting the laws or the Constitution shall form a part of the legal system . . ."The interpretation
upon a law by this Court constitutes, in a way, a part of the law as of the date that law was originally
passed, since this Court's construction merely establishes the contemporaneous legislative intent that
the law thus construed intends to effectuate. The settled rule supported by numerous authorities is a
restatement of the legal maxim "legis interpretation legis vim obtinet" — the interpretation placed
upon the written law by a competent court has the force of law. The doctrine laid down in Lucero and
Macarandang was part of the jurisprudence, hence, of the law, of the land, at the time appellant was
found in possession of the firearm in question and where he was arraigned by the trial court. It is true
that the doctrine was overruled in the Mapa case in 1967, but when a doctrine of this Court is
overruled and a different view is adopted, the new doctrine should be applied prospectively, and
should not apply to parties who had relied on, the old doctrine and acted on the faith thereof. This is
especially true in the construction and application of criminal laws, where it is necessary that the
punishment of an act be reasonably foreseen for the guidance of society.
So, too, did the Court rule in Spouses Gauvain and Bernardita Benzonan v. Court of Appeals, et al.
(G.R. No. 97973) and Development Bank of the Philippines v. Court of Appeals, et al (G.R. No
97998), Jan. 27, 1992, 205 SCRA 515, 527-528:8
We sustain the petitioners' position, It is undisputed that the subject lot was mortgaged to DBP on
February 24, 1970. It was acquired by DBP as the highest bidder at a foreclosure sale on June 18,
1977, and then sold to the petitioners on September 29, 1979.
At that time, the prevailing jurisprudence interpreting section 119 of R.A. 141 as amended was that
enunciated in Monge and Tupas cited above. The petitioners Benzonan and respondent Pe and the
DBP are bound by these decisions for pursuant to Article 8 of the Civil Code "judicial decisions
applying or interpreting the laws or the Constitution shall form a part of the legal system of the
Philippines." But while our decisions form part of the law of the land, they are also subject to Article
4 of the Civil Code which provides that "laws shall have no retroactive effect unless the contrary is
provided." This is expressed in the familiar legal maxim lex prospicit, non respicit, the law looks
forward not backward. The rationale against retroactivity is easy to perceive. The retroactive
application of a law usually divests rights that have already become vested or impairs the obligations
of contract and hence, is unconstitutional (Francisco vs. Certeza, 3 SCRA 565 [1061]).
The same consideration underlies our rulings giving only prospective effect to decisions enunciating
new doctrines. Thus, we emphasized in People v. Jabinal, 55 SCRA 607 [1974]" . . . when a doctrine
of this Court is overruled and a different view is adopted, the new doctrine should be applied
prospectively and should not apply to parties who had relied on the old doctrine and acted on the faith
thereof.
A compelling rationalization of the prospectivity principle of judicial decisions is well set forth in the
oft-cited case of Chicot County Drainage Dist. v. Baxter States Bank, 308 US 371, 374 [1940]. The
Chicot doctrine advocates the imperative necessity to take account of the actual existence of a statute
prior to its nullification, as an operative fact negating acceptance of "a principle of absolute
retroactive invalidity.
Thus, in this Court's decision in Tañada v. Tuvera,9 promulgated on April 24, 1985 — which
declared "that presidential issuances of general application, which have not been published,shall have
no force and effect," and as regards which declaration some members of the Court appeared "quite
apprehensive about the possible unsettling effect . . . (the) decision might have on acts done in
reliance on the validity of these presidential decrees . . ." — the Court said:
. . . . The answer is all too familiar. In similar situation is in the past this Court, had taken the
pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank (308 U.S.
371, 374) to wit:
The courts below have proceeded on the theory that the Act of Congress, having found to be
unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties,
and hence affording no basis for the challenged decree. Norton vs. Shelby County, 118 US 425, 442;
Chicago, I. & L. Ry. Co. v. Hackett, 228 U. S. 559, 566. It is quite clear, however, that such broad
statements as to the effect of a determination of unconstitutionality must be taken with qualifications.
The actual existence of a statute, prior to such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be erased by a new judicial
declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various
aspects — with respect to particular conduct, private and official. Questions of rights claimed to have
become vested, of status, of prior determinations deemed to have finality and acted upon accordingly,
of public policy in the light of the nature both of the statute and of its previous application, demand
examination. These questions are among the most difficult of those who have engaged the attention
of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement
of a principle of absolute retroactive invalidity cannot be justified.
Much earlier, in De Agbayani v. PNB, 38 SCRA 429 — concerning the effects of the invalidation of
"Republic Act No. 342, the moratorium legislation, which continued Executive Order No. 32, issued
by the then President Osmeña, suspending the enforcement of payment of all debts and other
monetary obligations payable by war sufferers," and which had been "explicitly held in Rutter v.
Esteban (93 Phil. 68 [1953] 10 . . . (to be) in 1953 'unreasonable and oppressive, and should not be
prolonged a minute longer . . ." — the Court made substantially the same observations, to wit:11
. . . . The decision now on appeal reflects the orthodox view that an unconstitutional act, for that
matter an executive order or a municipal ordinance likewise suffering from that infirmity, cannot be
the source of any legal rights or duties. Nor can it justify any official act taken under it. Its
repugnancy to the fundamental law once judicially declared results in its being to all intents and
purposes amere scrap of paper. . . . It is understandable why it should be so, the Constitution being
supreme and paramount. Any legislative or executive act contrary to its terms cannot survive.
Such a view has support in logic and possesses the merit of simplicity. lt may not however be
sufficiently realistic. It does not admit of doubt that prior to the declaration of nullity such challenged
legislative or executive act must have been in force and had to be compiled with. This is so as until
after the judiciary, in an appropriate case, declares its invalidity,, it is entitled to obedience and
respect. Parties may have acted under it and may have changed theirpositions, what could be more
fitting than that in a subsequent litigation regard be had to what has been done while such legislative
or executive act was in operation and presumed to be valid in all respects. It is now accepted as a
doctrine that prior to its being nullified, its existence is a fact must be reckoned with. This is merely
to reflect awareness that precisely because the judiciary is the governmental organ which has the final
say on whether or not a legislative or executive measure is valid, a, period of time may have elapsed
before it can exercise the power of judicial review that may lead to a declaration of nullity. It would
be to deprive the law of its quality of fairness and justice then, if there be no recognition of what had
transpired prior to such adjudication.
In the language of an American Supreme Court decision: 'The actual existence of a statute, prior to
such a determination [of unconstitutionality], is an operative fact and may have consequences which
cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect
of the subsequent ruling as to invalidity may have to be considered in various aspects, — with respect
to particular relations, individual and corporate, and particular conduct, private and official (Chicot
County Drainage Dist. v. Baxter States Bank, 308 US 371, 374 [1940]). This language has been
quoted with approval in a resolution in Araneta v. Hill (93 Phil. 1002 [1953]) and the decision in
Manila Motor Co. Inc. v. Flores (99 Phil. 738 [1956]). An even more recent instance is the opinion of
Justice Zaldivar speaking for the Court in Fernandez v. Cuerva and Co. (L-21114, Nov. 28, 1967, 21
SCRA 1095).
Again, treating of the effect that should be given to its decision in Olaguer v. Military Commission
No 34, 12 — declaring invalid criminal proceedings conducted during the martial law regime against
civilians, which had resulted in the conviction and incarceration of numerous persons — this Court,
in Tan vs. Barrios, 190 SCRA 686, at p. 700, ruled as follows:
In the interest of justice and consistently, we hold that Olaguer should, in principle, be applied
prospectively only to future cases and cases still ongoing or not yet final when that decision was
promulgated. Hence, there should be no retroactive nullification of final judgments, whether of
conviction or acquittal, rendered by military courts against civilians before the promulgation of the
Olaguer decision. Such final sentences should not be disturbed by the State. Only in particular cases
where the convicted person or the State shows that there was serious denial of constitutional rights of
the accused, should the nullity of the sentence be declared and a retrial be ordered based on the
violation of the constitutional rights of the accused and not on the Olaguer doctrine. If a retrial is no
longer possible, the accused should be released since judgment against him is null on account of the
violation of his constitutional rights and denial of due process.
xxx xxx xxx
The trial of thousands of civilians for common crimes before the military tribunals and commissions
during the ten-year period of martial rule (1971-1981) which were created under general orders
issued by President Marcos in the exercise of his legislative powers is an operative fact that may not
just be ignored. The belated declaration in 1987 of the unconstitutionality and invalidity of those
proceedings did not erase the reality of their consequences which occurred long before our decision
in Olaguer was promulgated and which now prevent us from carrying Olaguer to the limit of its logic.
Thus did this Court rule in Municipality of Malabang v. Benito, 27 SCRA 533, where the question
arose as to whether the nullity of creation of a municipality by executive order wiped out all the acts
of the local government abolished. 13
It would seem then, that the weight of authority is decidedly in favor of the proposition that the
Court's decision of September 21, 1987 in Que v. People, 154 SCRA 160 (1987) 14 that a check
issued merely to guarantee the performance of an obligation is nevertheless covered by B.P. Blg. 22
— should not be given retrospective effect to the prejudice of the petitioner and other persons
situated, who relied on the official opinion of the Minister of Justice that such a check did not fall
within the scope of B.P. Blg. 22.
Inveighing against this proposition, the Solicitor General invokes U.S. v. Go Chico, 14 Phil. 128,
applying the familiar doctrine that in crimes mala prohibita, the intent or motive of the offender is
inconsequential, the only relevant inquiry being, "has the law been violated?" The facts in Go Chico
are substantially different from those in the case at bar. In the former, there was no official issuance
by the Secretary of Justice or other government officer construing the special law violated; 15 and it
was there observed, among others, that "the defense . . . (of) an honest misconstruction of the law
under legal advice" 16 could not be appreciated as a valid defense. In the present case on the other
hand, the defense is that reliance was placed, not on the opinion of a private lawyer but upon an
official pronouncement of no less than the attorney of the Government, the Secretary of Justice,
whose opinions, though not law, are entitled to great weight and on which reliance may be placed by
private individuals is reflective of the correct interpretation of a constitutional or statutory provision;
this, particularly in the case of penal statutes, by the very nature and scope of the authority that
resides in as regards prosecutions for their violation.17 Senarillos vs. Hermosisima, supra, relied
upon by the respondent Court of Appeals, is crucially different in that in said case, as in U.S. v. Go
Chico, supra, no administrative interpretation antedated the contrary construction placed by the Court
on the law invoked.
This is after all a criminal action all doubts in which, pursuant to familiar, fundamental doctrine, must
be resolved in favor of the accused. Everything considered, the Court sees no compelling reason why
the doctrine of mala prohibita should override the principle of prospectivity, and its clear implications
as herein above set out and discussed, negating criminal liability.
WHEREFORE, the assailed decisions of the Court of Appeals and of the Regional Trial Court are
reversed and set aside, and the criminal prosecution against the accused-petitioner is DISMISSED,
with costs de oficio.
SO ORDERED.

Case #5 G.R. No. 96132 June 26, 1992
ORIEL MAGNO v. HONORABLE COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES
This is an appeal by certiorari under Rule 45 of the Revised Rules of Court, from the decision* of the
respondent Court of Appeals which affirmed in toto the decision of the Regional Trial Court of
Quezon City, Branch 104 finding the accused petitioner, guilty of violations of Batas Pambansa Blg.
22, in Criminal Cases Q-35693 to 35696 before they were elevated on appeal to the respondent
appellate Court under CA-G.R. CR No. 04889.
The antecedent facts and circumstances of the four (4) counts of the offense charged, have been
clearly illustrated, in the Comment of the Office of the Solicitor General as official counsel for the
public respondent, thus:
Petitioner was in the process of putting up a car repair shop sometime in April 1983, but a did not
have complete equipment that could make his venture workable. He also had another problem, and
that while he was going into this entrepreneurship, he lacked funds with which to purchase the
necessary equipment to make such business operational. Thus, petitioner, representing Ultra Sources
International Corporation, approached Corazon Teng, (private complainant) Vice President of
Mancor Industries (hereinafter referred to as Mancor) for his needed car repair service equipment of
which Mancor was a distributor, (Rollo, pp. 40-41)
Having been approached by petitioner on his predicament, who fully bared that he had no sufficient
funds to buy the equipment needed, the former (Corazon Teng) referred Magno to LS Finance and
Management Corporation (LB Finance for brevity) advising its Vice-President, Joey Gomez, that
Mancor was willing and able to supply the pieces of equipment needed if LS Finance could
accommodate petitioner and provide him credit facilities. (Ibid., P. 41)
The arrangement went through on condition that petitioner has to put up a warranty deposit
equivalent to thirty per centum (30%) of the total value of the pieces of equipment to be purchased,
amounting to P29,790.00. Since petitioner could not come up with such amount, he requested Joey
Gomez on a personal level to look for a third party who could lend him the equivalent amount of the
warranty deposit, however, unknown to petitioner, it was Corazon Teng who advanced the deposit in
question, on condition that the same would be paid as a short term loan at 3% interest (Ibid., P. 41)
The specific provision in the Leasing Agreement, reads:
1.1. WARRANTY DEPOSIT — Before or upon delivery of each item of Equipment, the Lessee shall
deposit with the Lessor such sum or sums specified in Schedule A to serve as security for the faithful
performance of its obligations.
This deposit shall be refunded to the Lessee upon the satisfactory completion of the entire period of
Lease, subject to the conditions of clause 1.12 of this Article. (Ibid., p. 17)
As part of the arrangement, petitioner and LS Finance entered into a leasing agreement whereby LS
Finance would lease the garage equipments and petitioner would pay the corresponding rent with the
option to buy the same. After the documentation was completed, the equipment were delivered to
petitioner who in turn issued a postdated check and gave it to Joey Gomez who, unknown to the
petitioner, delivered the same to Corazon Teng. When the check matured, Petitioner requested
through Joey Gomez not to deposit the check as he (Magno) was no longer banking with Pacific
Bank.
To replace the first check issued, petitioner issued another set of six (6) postdated checks. Two (2)
checks dated July 29, 1983 were deposited and cleared while the four (4) others, which were the
subject of the four counts of the aforestated charges subject of the petition, were held momentarily by
Corazon Teng, on the request of Magno as they were not covered with sufficient funds. These checks
were a) Piso Bank Check Nos. 006858, dated August 15, 1983, 006859 dated August 28, 1983 and
006860 dated September 15, 1983, all in the amount of P5,038.43 and No. 006861 dated September
28, 1983, in the amount of P10,076.87. (Ibid., pp. 42 & 43).
Subsequently, petitioner could not pay LS Finance the monthly rentals, thus it pulled out the garage
equipments. It was then on this occasion that petitioner became aware that Corazon Teng was the one
who advanced the warranty deposit. Petitioner with his wife went to see Corazon Teng and promised
to pay the latter but the payment never came and when the four (4) checks were deposited they were
returned for the reason "account closed." (Ibid., p. 43)
After joint trial before the Regional Trial Court of Quezon City, Branch 104, the accused-petitioner
was convicted for violations of BP Blg. 22 on the four (4) cases, as follows:
. . . finding the accused-appellant guilty beyond reasonable doubt of the offense of violations of B.P.
Blg. 22 and sentencing the accused to imprisonment for one year in each Criminal Case Nos. Q-
35693, Q-35695 and Q-35696 and to pay to complainant the respective amounts reflected in subject
checks. (Ibid., pp. 25, 27)
Reviewing the above and the affirmation of the above-stated decision of the court a quo, this Court is
intrigued about the outcome of the checks subject of the cases which were intended by the parties, the
petitioner on the one hand and the private complainant on the other, to cover the "warranty deposit"
equivalent to the 30% requirement of the financing company. Corazon Teng is one of the officers of
Mancor, the supplier of the equipment subject of the Leasing Agreement subject of the high financing
scheme undertaken by the petitioner as lessee of the repair service equipment, which was arranged at
the instance of Mrs. Teng from the very beginning of the transaction.
By the nature of the "warranty deposit" amounting to P29,790.00 corresponding to 30% of the
"purchase/lease" value of the equipments subject of the transaction, it is obvious that the "cash out"
made by Mrs. Teng was not used by petitioner who was just paying rentals for the equipment. It
would have been different if petitioner opted to purchase the pieces of equipment on or about the
termination of the lease-purchase agreement in which case he had to pay the additional amount of the
warranty deposit which should have formed part of the purchase price. As the transaction did not
ripen into a purchase, but remained a lease with rentals being paid for the loaned equipment, which
were pulled out by the Lessor (Mancor) when the petitioner failed to continue paying possibly due to
economic constraints or business failure, then it is lawful and just that the warranty deposit should not
be charged against the petitioner.
To charge the petitioner for the refund of a "warranty deposit" which he did not withdraw as it was
not his own account, it having remained with LS Finance, is to even make him pay an unjust "debt",
to say the least, since petitioner did not receive the amount in question. All the while, said amount
was in the safekeeping of the financing company, which is managed, supervised and operated by the
corporation officials and employees of LS Finance. Petitioner did not even know that the checks he
issued were turned over by Joey Gomez to Mrs. Teng, whose operation was kept from his knowledge
on her instruction. This fact alone evoke suspicion that the transaction is irregular and immoral per
se, hence, she specifically requested Gomez not to divulge the source of the "warranty deposit".
It is intriguing to realize that Mrs. Teng did not want the petitioner to know that it was she who
"accommodated" petitioner's request for Joey Gomez, to source out the needed funds for the
"warranty deposit". Thus it unfolds the kind of transaction that is shrouded with mystery, gimmickry
and doubtful legality. It is in simple language, a scheme whereby Mrs. Teng as the supplier of the
equipment in the name of her corporation, Mancor, would be able to "sell or lease" its goods as in this
case, and at the same time, privately financing those who desperately need petty accommodations as
this one. This modus operandi has in so many instances victimized unsuspecting businessmen, who
likewise need protection from the law, by availing of the deceptively called "warranty deposit" not
realizing that they also fall prey to leasing equipment under the guise of a lease-purchase agreement
when it is a scheme designed to skim off business clients.
This maneuvering has serious implications especially with respect to the threat of the penal sanction
of the law in issue, as in this case. And, with a willing court system to apply the full harshness of the
special law in question, using the "mala prohibitia" doctrine, the noble objective of the law is tainted
with materialism and opportunism in the highest, degree.
This angle is bolstered by the fact that since the petitioner or lessee referred to above in the lease
agreement knew that the amount of P29,790.00 subject of the cases, were mere accommodation-
arrangements with somebody thru Joey Gomez, petitioner did not even attempt to secure the refund
of said amount from LS Finance, notwithstanding the agreement provision to the contrary. To argue
that after the termination of the lease agreement, the warranty deposit should be refundable in full to
Mrs. Teng by petitioner when he did not cash out the "warranty deposit" for his official or personal
use, is to stretch the nicety of the alleged law (B.P. No, 22) violated.
For all intents and purposes, the law was devised to safeguard the interest of the banking system and
the legitimate public checking account user. It did not intend to shelter or favor nor encourage users
of the system to enrich themselves through manipulations and circumvention of the noble purpose
and objective of the law. Least should it be used also as a means of jeopardizing honest-to-goodness
transactions with some color of "get-rich" scheme to the prejudice of well-meaning businessmen who
are the pillars of society.
Under the utilitarian theory, the "protective theory" in criminal law, "affirms that the primary
function of punishment is the protective (sic) of society against actual and potential wrongdoers." It is
not clear whether petitioner could be considered as having actually committed the wrong sought to be
punished in the offense charged, but on the other hand, it can be safely said that the actuations of
Mrs. Carolina Teng amount to that of potential wrongdoers whose operations should also be clipped
at some point in time in order that the unwary public will not be failing prey to such a vicious
transaction (Aquino, The Revised Penal Code, 1987 Edition, Vol. I, P. 11)
Corollary to the above view, is the application of the theory that "criminal law is founded upon that
moral disapprobation . . . of actions which are immoral, i.e., which are detrimental (or dangerous) to
those conditions upon which depend the existence and progress of human society. This
disappropriation is inevitable to the extent that morality is generally founded and built upon a certain
concurrence in the moral opinions of all. . . . That which we call punishment is only an external
means of emphasizing moral disapprobation the method of punishment is in reality the amount of
punishment," (Ibid., P. 11, citing People v. Roldan Zaballero, CA 54 O.G. 6904, Note also Justice
Pablo's view in People v. Piosca and Peremne, 86 Phil. 31).
Thus, it behooves upon a court of law that in applying the punishment imposed upon the accused, the
objective of retribution of a wronged society, should be directed against the "actual and potential
wrongdoers." In the instant case, there is no doubt that petitioner's four (4) checks were used to
collateralize an accommodation, and not to cover the receipt of an actual "account or credit for value"
as this was absent, and therefore petitioner should not be punished for mere issuance of the checks in
question. Following the aforecited theory, in petitioner's stead the "potential wrongdoer", whose
operation could be a menace to society, should not be glorified by convicting the petitioner.
While in case of doubt, the case should have been resolved in favor of the accused, however, by the
open admission of the appellate court below, oven when the ultimate beneficiary of the "warranty
deposit" is of doubtful certainty, the accused was convicted, as shown below:
Nor do We see any merit in appellant's claim that the obligation of the accused to complainant had
been extinguished by the termination of the leasing agreement — by the terms of which the warranty
deposit advanced by complainant was refundable to the accused as lessee — and that as the lessor
L.S. Finance neither made any liquidation of said amount nor returned the same to the accused, it
may he assumed that the amount was already returned to the complainant. For these allegations, even
if true, do not change the fact, admitted by appellant and established by the evidence, that the four
checks were originally issued on account or for value. And as We have already observed, in order
that there may be a conviction under the from paragraph of Section 2 of B.P. Blg 22 — with respect
to the element of said offense that the check should have been made and issued on account or for
value — it is sufficient, all the other elements of the offense being present, that the check must have
been drawn and issued in payment of an obligation.
Moreover, even granting, arguendo, that the extinguishment, after the issuance of the checks, of the
obligation in consideration of which the checks were issued, would have resulted in placing the case
at bar beyond the purview of the prohibition in Section 1 of BP Blg. 22, there is no satisfactory proof
that there was such an extinguishment in the present case. Appellee aptly points out that appellant had
not adduced any direct evidence to prove that the amount advanced by the complainant to cover the
warranty deposit must already have been returned to her. (Rollo, p. 30)
It is indubitable that the respondent Court of Appeals even disregarded the cardinal rule that the
accused is presumed innocent until proven guilty beyond reasonable doubt. On the contrary, the same
court even expected the petitioner-appellant to adduce evidence to show that he was not guilty of the
crime charged. But how can be produce documents showing that the warranty deposit has already
been taken back by Mrs. Teng when she is an officer of Mancor which has interest in the transaction,
besides being personally interested in the profit of her side-line. Thus, even if she may have gotten
back the value of the accommodation, she would still pursue collecting from the petitioner since she
had in her possession the checks that "bounced".
That the court a quo merely relied on the law, without looking into the real nature of the warranty
deposit is evident from the following pronouncement:
And the trail court concluded that there is no question that the accused violated BP Blg. 22, which is
a special statutory law, violations of which are mala prohibita. The court relied on the rule that in
cases of mala prohibita, the only inquiry is whether or not the law had been violated, proof of
criminal intent not being necessary for the conviction of the accused, the acts being prohibited for
reasons of public policy and the defenses of good faith and absence of criminal intent being
unavailing in prosecutions for said offenses." (Ibid., p. 26)
The crux of the matter rests upon the reason for the drawing of the postdated checks by the petitioner,
i.e., whether they were drawn or issued "to apply on account or for value", as required under Section
1 of B.P. Blg, 22. When viewed against the following definitions of the catch-terms "warranty" and
"deposit", for which the postdated checks were issued or drawn, all the more, the alleged crime could
not have been committed by petitioner:
a) Warranty — A promise that a proposition of fact is true. A promise that certain facts are truly as
they are represented to be and that they will remain so: . . . (Black's Law Dictionary, Fifth Edition,
(1979) p. 1423)
A cross-reference to the following term shows:
Fitness for Particular Purpose: —
Where the seller at the time of contracting has reason to know any particular purpose for which the
goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish
suitable goods, there is, unless excluded or modified, an implied warranty that the goods shall be fit
for such purpose, (Ibid., p. 573)
b) Deposit: — Money lodged with a person as an earnest or security for the performance of some
contract, to be forfeited if the depositor fails in his undertaking. It may be deemed to be part payment
and to that extent may constitute the purchaser the actual owner of the estate.
To commit to custody, or to lay down; to place; to put. To lodge for safe- keeping or as a pledge to
intrust to the care of another.
The act of placing money in the custody of a bank or banker, for safety or convenience, to be
withdrawn at the will of the depositor or under rules and regulations agreed on. Also, the money so
deposited, or the credit which the depositor receives for it. Deposit, according to its commonly
accepted and generally understood among bankers and by the public, includes not only deposits
payable on demand and for which certificates, whether interest-bearing or not, may be issued,
payable on demand, or on certain notice or at a fixed future time. (Ibid., pp. 394-395)
Furthermore, the element of "knowing at the time of issue that he does not have sufficient funds in or
credit with the drawee bank for the payment of such check in full upon its presentment, which check
is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have
been dishonored for the same reason . . . is inversely applied in this case. From the very beginning,
petitioner never hid the fact that he did not have the funds with which to put up the warranty deposit
and as a matter of fact, he openly intimated this to the vital conduit of the transaction, Joey Gomez, to
whom petitioner was introduced by Mrs. Teng. It would have been different if this predicament was
not communicated to all the parties he dealt with regarding the lease agreement the financing of
which was covered by L.S. Finance Management.
WHEREFORE, the appealed decision is REVERSED and the accused-petitioner is hereby
ACQUITTED of the crime charged.
SO ORDERED.
Case #6 G.R. No. 192330 November 14, 2012
ARNOLD JAMES M. YSIDORO v. PEOPLE OF THE PHILIPPINES
This case is about a municipal mayor charged with illegal diversion of food intended for those
suffering from malnutrition to the beneficiaries of reconsideration projects affecting the homes of
victims of calamities.
The Facts and the Case
The Office of the Ombudsman for the Visayas accused Arnold James M. Ysidoro before the
Sandiganbayan in Criminal Case 28228 of violation of illegal use of public propertry (technical
malversation) under Article 220 of the Revised Penal Code.1
The facts show that the Municipal Social Welfare and Development Office (MSWDO) of Leyte,
Leyte, operated a Core Shelter Assistance Program (CSAP) that provided construction materials to
indigent calamity victims with which to rebuild their homes. The beneficiaries provided the labor
needed for construction.
On June 15, 2001 when construction for calamity victims in Sitio Luy-a, Barangay Tinugtogan, was
70% done, the beneficiaries stopped reporting for work for the reason that they had to find food for
their families. This worried Lolita Garcia (Garcia), the CSAP Officer-in-Charge, for such
construction stoppage could result in the loss of construction materials particularly the cement. Thus,
she sought the help of Cristina Polinio (Polinio), an officer of the MSWDO in charge of the
municipality’s Supplemental Feeding Program (SFP) that rationed food to malnourished children.
Polinio told Garcia that the SFP still had sacks of rice and boxes of sardines in its storeroom. And
since she had already distributed food to the mother volunteers, what remained could be given to the
CSAP beneficiaries.
Garcia and Polinio went to petitioner Arnold James M. Ysidoro, the Leyte Municipal Mayor, to seek
his approval. After explaining the situation to him, Ysidoro approved the release and signed the
withdrawal slip for four sacks of rice and two boxes of sardines worth P3,396.00 to CSAP.2 Mayor
Ysidoro instructed Garcia and Polinio, however, to consult the accounting department regarding the
matter. On being consulted, Eldelissa Elises, the supervising clerk of the Municipal Accountant’s
Office, signed the withdrawal slip based on her view that it was an emergency situation justifying the
release of the goods. Subsequently, CSAP delivered those goods to its beneficiaries. Afterwards,
Garcia reported the matter to the MSWDO and to the municipal auditor as per auditing rules.
On August 27, 2001 Alfredo Doller, former member of the Sangguniang Bayan of Leyte, filed the
present complaint against Ysidoro. Nierna Doller, Alfredo's wife and former MSWDO head, testified
that the subject SFP goods were intended for its target beneficiaries, Leyte’s malnourished children.
She also pointed out that the Supplemental Feeding Implementation Guidelines for Local
Government Units governed the distribution of SFP goods.3 Thus, Ysidoro committed technical
malversation when he approved the distribution of SFP goods to the CSAP beneficiaries.
In his defense, Ysidoro claims that the diversion of the subject goods to a project also meant for the
poor of the municipality was valid since they came from the savings of the SFP and the Calamity
Fund. Ysidoro also claims good faith, believing that the municipality’s poor CSAP beneficiaries were
also in urgent need of food. Furthermore, Ysidoro pointed out that the COA Municipal Auditor
conducted a comprehensive audit of their municipality in 2001 and found nothing irregular in its
transactions.
On February 8, 2010 the Sandiganbayan found Ysidoro guilty beyond reasonable doubt of technical
malversation. But, since his action caused no damage or embarrassment to public service, it only
fined him P1,698.00 or 50% of the sum misapplied. The Sandiganbayan held that Ysidoro applied
public property to a pubic purpose other than that for which it has been appropriated by law or
ordinance. On May 12, 2010 the Sandiganbayan denied Ysidoro’s motion for reconsideration. On
June 8, 2010 Ysidoro appealed the Sandiganbayan Decision to this Court.
The Questions Presented
In essence, Ysidoro questions the Sandiganbayan’s finding that he committed technical malversation.
He particularly raises the following questions:
1. Whether or not he approved the diversion of the subject goods to a public purpose different from
their originally intended purpose;
2. Whether or not the goods he approved for diversion were in the nature of savings that could be
used to augment the other authorized expenditures of the municipality;
3. Whether or not his failure to present the municipal auditor can be taken against him; and
4. Whether or not good faith is a valid defense for technical malversation.
The Court’s Rulings
One. The crime of technical malversation as penalized under Article 220 of the Revised Penal Code4
has three elements: a) that the offender is an accountable public officer; b) that he applies public
funds or property under his administration to some public use; and c) that the public use for which
such funds or property were applied is different from the purpose for which they were originally
appropriated by law or ordinance.5 Ysidoro claims that he could not be held liable for the offense
under its third element because the four sacks of rice and two boxes of sardines he gave the CSAP
beneficiaries were not appropriated by law or ordinance for a specific purpose.
But the evidence shows that on November 8, 2000 the Sangguniang Bayan of Leyte enacted
Resolution 00-133 appropriating the annual general fund for 2001.6 This appropriation was based on
the executive budget7 which allocated P100,000.00 for the SFP and P113,957.64 for the
Comprehensive and Integrated Delivery of Social Services8 which covers the CSAP housing
projects.9 The creation of the two items shows the Sanggunian’s intention to appropriate separate
funds for SFP and the CSAP in the annual budget.
Since the municipality bought the subject goods using SFP funds, then those goods should be used
for SFP’s needs, observing the rules prescribed for identifying the qualified beneficiaries of its
feeding programs. The target clientele of the SFP according to its manual10 are: 1) the moderately
and severely underweight pre-school children aged 36 months to 72 months; and 2) the families of
six members whose total monthly income is P3,675.00 and below.11 This rule provides assurance
that the SFP would cater only to the malnourished among its people who are in urgent need of the
government’s limited resources.
Ysidoro disregarded the guidelines when he approved the distribution of the goods to those providing
free labor for the rebuilding of their own homes. This is technical malversation. If Ysidoro could not
legally distribute the construction materials appropriated for the CSAP housing beneficiaries to the
SFP malnourished clients neither could he distribute the food intended for the latter to CSAP
beneficiaries.
Two. Ysidoro claims that the subject goods already constituted savings of the SFP and that, therefore,
the same could already be diverted to the CSAP beneficiaries. He relies on Abdulla v. People12
which states that funds classified as savings are not considered appropriated by law or ordinance and
can be used for other public purposes. The Court cannot accept Ysidoro’s argument.
The subject goods could not be regarded as savings. The SFP is a continuing program that ran
throughout the year. Consequently, no one could say in mid-June 2001 that SFP had already finished
its project, leaving funds or goods that it no longer needed. The fact that Polinio had already
distributed the food items needed by the SFP beneficiaries for the second quarter of 2001 does not
mean that the remaining food items in its storeroom constituted unneeded savings. Since the
requirements of hungry mouths are hard to predict to the last sack of rice or can of sardines, the view
that the subject goods were no longer needed for the remainder of the year was quite premature.
In any case, the Local Government Code provides that an ordinance has to be enacted to validly
apply funds, already appropriated for a determined public purpose, to some other purpose. Thus:
SEC. 336. Use of Appropriated Funds and Savings. – Funds shall be available exclusively for the
specific purpose for which they have been appropriated. No ordinance shall be passed authorizing
any transfer of appropriations from one item to another. However, the local chief executive or the
presiding officer of the sanggunian concerned may, by ordinance, be authorized to augment any item
in the approved annual budget for their respective offices from savings in other items within the same
expense class of their respective appropriations.
The power of the purse is vested in the local legislative body. By requiring an ordinance, the law
gives the Sanggunian the power to determine whether savings have accrued and to authorize the
augmentation of other items on the budget with those savings.
Three. Ysidoro claims that, since the municipal auditor found nothing irregular in the diversion of the
subject goods, such finding should be respected. The SB ruled, however, that since Ysidoro failed to
present the municipal auditor at the trial, the presumption is that his testimony would have been
adverse if produced. Ysidoro argues that this goes against the rule on the presumption of innocence
and the presumption of regularity in the performance of official functions.
Ysidoro may be right in that there is no basis for assuming that had the municipal auditor testified, his
testimony would have been adverse to the mayor. The municipal auditor’s view regarding the
transaction is not conclusive to the case and will not necessarily negate the mayor’s liability if it
happened to be favorable to him. The Court will not, therefore, be drawn into speculations regarding
what the municipal auditor would have said had he appeared and testified.
Four. Ysidoro insists that he acted in good faith since, first, the idea of using the SFP goods for the
CSAP beneficiaries came, not from him, but from Garcia and Polinio; and, second, he consulted the
accounting department if the goods could be distributed to those beneficiaries. Having no criminal
intent, he argues that he cannot be convicted of the crime.1âwphi1
But criminal intent is not an element of technical malversation. The law punishes the act of diverting
public property earmarked by law or ordinance for a particular public purpose to another public
purpose. The offense is mala prohibita, meaning that the prohibited act is not inherently immoral but
becomes a criminal offense because positive law forbids its commission based on considerations of
public policy, order, and convenience.13 It is the commission of an act as defined by the law, and not
the character or effect thereof, that determines whether or not the provision has been violated. Hence,
malice or criminal intent is completely irrelevant.14
Dura lex sed lex. Ysidoro’s act, no matter how noble or miniscule the amount diverted, constitutes
the crime of technical malversation. The law and this Court, however, recognize that his offense is
not grave, warranting a mere fine.
WHEREFORE, this Court AFFIRMS in its entirely the assailed Decision of the Sandiganbayan in
Criminal Case 28228 dated February 8, 2010.
SO ORDERED.
Case #7 G.R. No. 121592 July 5, 1996
ROLANDO P. DELA TORRE v. COMMISSION ON ELECTIONS and MARCIAL
VILLANUEVA
Petitioner Rolando P. Dela Torre via the instant petition for certiorari seeks the nullification of two
resolutions issued by the Commission on Elections (COMELEC) allegedly with grave abuse of
discretion amounting to lack of jurisdiction in SPA No. 95-047, a case for disqualification filed
against petitioner before the COMELEC.1
The first assailed resolution dated May 6, 1995 declared the petitioner disqualified from running for
the position of Mayor of Cavinti, Laguna in the last May 8, 1995 elections, citing as the ground
therefor, Section 40(a) of Republic Act No. 7160 (the Local Government Code of 1991)2 which
provides as follows:
Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local
position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment within two (2) years after serving sentence;
(b) xxx xxx xxx.
In disqualifying the petitioner, the COMELEC held that:
Documentary evidence . . . established that herein respondent (petitioner in this case) was found
guilty by the Municipal Trial Court, . . . in Criminal Case No. 14723 for violation of P.D. 1612,
(otherwise known as the Anti-fencing Law) in a Decision dated June 1, 1990. Respondent appealed
the said conviction with the Regional Trial Court . . . , which however, affirmed respondent's
conviction in a Decision dated November 14, 1990. Respondent's conviction became final on January
18, 1991.
xxx xxx xxx
. . . , there exists legal grounds to disqualify respondent as candidate for Mayor of Cavinti, Laguna
this coming elections. Although there is "dearth of jurisprudence involving violation of the Anti-
Fencing Law of 1979 or P.D. 1612" . . . , the nature of the offense under P.D. 1612 with which
respondent was convicted certainly involves moral turpitude . . . .3
The second assailed resolution, dated August 28, 1995, denied petitioner's motion for reconsideration.
In said motion, petitioner claimed that Section 40 (a) of the Local Government Code does not apply
to his case inasmuch as the probation granted him by the MTC on December 21, 1994 which
suspended the execution of the judgment of conviction and all other legal consequences flowing
therefrom, rendered inapplicable Section 40 (a) as well. 4
The two (2) issues to be resolved are:
1. Whether or not the crime of fencing involves moral turpitude.
2. Whether or not a grant of probation affects Section 40 (a)'s applicability.

Particularly involved in the first issue is the first of two instances contemplated in Section 40 (a)
when prior conviction of a crime becomes a ground for disqualification — i.e., "when the conviction
by final judgment is for an offense involving moral turpitude." And in this connection, the Court has
consistently adopted the definition in Black's Law Dictionary of "moral turpitude" as:
. . . an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men,
or to society in general, contrary to the accepted and customary rule of right and duty between man
and woman or conduct contrary to justice, honesty, modesty, or good morals.5
Not every criminal act, however, involves moral turpitude. It is for this reason that "as to what crime
involves moral turpitude, is for the Supreme Court to determine".6 In resolving the foregoing
question, the Court is guided by one of the general rules that crimes mala in se involve moral
turpitude, while crimes mala prohibita do not7, the rationale of which was set forth in "Zari v.
Flores,"8 to wit:
It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable by
law or not. It must not be merely mala prohibita, but the act itself must be inherently immoral. The
doing of the act itself, and not its prohibition by statute fixes the moral turpitude. Moral turpitude
does not, however, include such acts as are not of themselves immoral but whose illegality lies in
their being positively prohibited.9
This guidelines nonetheless proved short of providing a clear-cut solution, for in "International Rice
Research Institute v. NLRC, 10 the Court admitted that it cannot always be ascertained whether
moral turpitude does or does not exist by merely classifying a crime as malum in se or as malum
prohibitum. There are crimes which are mala in se and yet but rarely involve moral turpitude and
there are crimes which involve moral turpitude and are mala prohibita only. In the final analysis,
whether or not a crime involves moral turpitude is ultimately a question of fact and frequently
depends on all the circumstances surrounding the violation of the statue.11
The Court in this case shall nonetheless dispense with a review of the facts and circumstances
surrounding the commission of the crime, inasmuch as petitioner after all does not assail his
conviction. Petitioner has in effect admitted all the elements of the crime of fencing. At any rate, the
determination of whether or not fencing involves moral turpitude can likewise be achieved by
analyzing the elements alone.
Fencing is defined in Section 2 of P.D. 1612 (Anti-Fencing Law) as:
a. . . . the act of any person who, with intent to gain for himself or for another, shall buy, receive,
possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any
article, item, object or anything of value which he knows, or should be known to him, to have been
derived from the proceeds of the crime of robbery or theft.12
From the foregoing definition may be gleaned the elements of the crime of fencing which are:
1. A crime of robbery or theft has been committed;
2. The accused who is not a principal or accomplice in the crime of robbery or theft, buys, receives,
possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in
any article, item, object or anything of value, which have been derived from the proceeds of the said
crime;
3. The accused knows or should have known that the said article, item, object or anything of value
has been derived from the proceeds of the crime of robbery or theft; and [Emphasis supplied.]
4. There is, on the part of the accused, intent to gain for himself or for another.13
Moral turpitude is deducible from the third element. Actual knowledge by the "fence" of the fact that
property received is stolen displays the same degree of malicious deprivation of one's rightful
property as that which animated the robbery or theft which, by their very nature, are crimes of moral
turpitude. And although the participation of each felon in the unlawful taking differs in point in time
and in degree, both the "fence" and the actual perpetrator/s of the robbery or theft invaded one's
peaceful dominion for gain — thus deliberately reneging in the process "private duties" they owe
their "fellowmen" or "society" in a manner "contrary to . . . accepted and customary rule of right and
duty . . . , justice, honesty . . . or good morals." The duty not to appropriate, or to return, anything
acquired either by mistake or with malice is so basic it finds expression in some key provisions of the
Civil Code on "Human Relations" and "Solutio Indebiti", to wit:
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty and good faith.
Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall
indemnify the latter for the same.
Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the damage.
Art. 22. Everyone person who through an act of performance by another, or any other means,
acquires or comes into possession of something at the expense of the latter without just or legal
ground, shall return the same to him.
Art. 2154. If something is received when there is no right to demand it, and it was unduly delivered
through mistake, the obligation to return it arises.
The same underlying reason holds even if the "fence" did not have actual knowledge, but merely
"should have known" the origin of the property received. In this regard, the Court held:
When knowledge of the existence of a particular fact is an element of the offense, such knowledge is
established if a person is aware of the high probability of its existence unless he actually believes that
it does not exist. On the other hand, the words "should know" denote the fact that a person of
reasonable prudence and intelligence would ascertain the fact in the performance of his duty to
another or would govern his conduct upon assumption that such fact exists.14 [Emphasis supplied.]
Verily, circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the
object of the sale may have been derived from the proceeds of robbery or theft. Such circumstances
include the time and place of the sale, both of which may not be in accord with the usual practices of
commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly
engaged in the business of selling goods may likewise suggest the illegality of their source, and
therefor should caution the buyer. This justifies the presumption found in Section 5 of P.D. No. 1612
that "mere possession of any goods, . . . , object or anything of value which has been the subject of
robbery or thievery shall be prima facie evidence of fencing" — a presumption that is, according to
the Court, "reasonable for no other natural or logical inference can arise from the established fact
of . . . possession of the proceeds of the crime of robbery or theft."15 All told, the COMELEC did not
err in disqualifying the petitioner on the ground that the offense of fencing of which he had been
previously convicted by final judgment was one involving moral turpitude.
Anent the second issue where petitioner contends that his probation had the effect of suspending the
applicability of Section 40 (a) of the Local Government Code, suffice it to say that the legal effect of
probation is only to suspend the execution of the sentence.16 Petitioner's conviction of fencing which
we have heretofore declared as a crime of moral turpitude and thus falling squarely under the
disqualification found in Section 40 (a), subsists and remains totally unaffected notwithstanding the
grant of probation. In fact, a judgment of conviction in a criminal case ipso facto attains finality when
the accused applies for probation, although it is not executory pending resolution of the application
for probation.17 Clearly then, petitioner's theory has no merit.
ACCORDINGLY, the instant petition for certiorari is hereby DISMISSED and the assailed
resolutions of the COMELEC dated May 6, 1995 and August 28, 1995 are AFFIRMED in toto.
SO ORDERED.
Case #8 G.R. No. 142396 February 11, 2003
KHOSROW MINUCHER v. HON. COURT OF APPEALS and ARTHUR SCALZO
Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425,
otherwise also known as the "Dangerous Drugs Act of 1972," was filed against petitioner Khosrow
Minucher and one Abbas Torabian with the Regional Trial Court, Branch 151, of Pasig City. The
criminal charge followed a "buy-bust operation" conducted by the Philippine police narcotic agents in
the house of Minucher, an Iranian national, where a quantity of heroin, a prohibited drug, was said to
have been seized. The narcotic agents were accompanied by private respondent Arthur Scalzo who
would, in due time, become one of the principal witnesses for the prosecution. On 08 January 1988,
Presiding Judge Eutropio Migrino rendered a decision acquitting the two accused.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court (RTC),
Branch 19, of Manila for damages on account of what he claimed to have been trumped-up charges
of drug trafficking made by Arthur Scalzo. The Manila RTC detailed what it had found to be the facts
and circumstances surrounding the case.
"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the Philippines to
study in the University of the Philippines in 1974. In 1976, under the regime of the Shah of Iran, he
was appointed Labor Attaché for the Iranian Embassies in Tokyo, Japan and Manila, Philippines.
When the Shah of Iran was deposed by Ayatollah Khomeini, plaintiff became a refugee of the United
Nations and continued to stay in the Philippines. He headed the Iranian National Resistance
Movement in the Philippines.
"He came to know the defendant on May 13, 1986, when the latter was brought to his house and
introduced to him by a certain Jose Iñigo, an informer of the Intelligence Unit of the military. Jose
Iñigo, on the other hand, was met by plaintiff at the office of Atty. Crisanto Saruca, a lawyer for
several Iranians whom plaintiff assisted as head of the anti-Khomeini movement in the Philippines.
"During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose Iñigo,
the defendant expressed his interest in buying caviar. As a matter of fact, he bought two kilos of
caviar from plaintiff and paid P10,000.00 for it. Selling caviar, aside from that of Persian carpets,
pistachio nuts and other Iranian products was his business after the Khomeini government cut his
pension of over $3,000.00 per month. During their introduction in that meeting, the defendant gave
the plaintiff his calling card, which showed that he is working at the US Embassy in the Philippines,
as a special agent of the Drug Enforcement Administration, Department of Justice, of the United
States, and gave his address as US Embassy, Manila. At the back of the card appears a telephone
number in defendant’s own handwriting, the number of which he can also be contacted.
"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his
wife and the wife of a countryman named Abbas Torabian. The defendant told him that he [could]
help plaintiff for a fee of $2,000.00 per visa. Their conversation, however, was more concentrated on
politics, carpets and caviar. Thereafter, the defendant promised to see plaintiff again.
"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's
Restaurant at Makati. He wanted to buy 200 grams of caviar. Plaintiff brought the merchandize but
for the reason that the defendant was not yet there, he requested the restaurant people to x x x place
the same in the refrigerator. Defendant, however, came and plaintiff gave him the caviar for which he
was paid. Then their conversation was again focused on politics and business.
"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at Kapitolyo,
Pasig. The defendant wanted to buy a pair of carpets which plaintiff valued at $27,900.00. After some
haggling, they agreed at $24,000.00. For the reason that defendant did not yet have the money, they
agreed that defendant would come back the next day. The following day, at 1:00 p.m., he came back
with his $24,000.00, which he gave to the plaintiff, and the latter, in turn, gave him the pair of
carpets.1awphi1.nét
"At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's house
and directly proceeded to the latter's bedroom, where the latter and his countryman, Abbas Torabian,
were playing chess. Plaintiff opened his safe in the bedroom and obtained $2,000.00 from it, gave it
to the defendant for the latter's fee in obtaining a visa for plaintiff's wife. The defendant told him that
he would be leaving the Philippines very soon and requested him to come out of the house for a while
so that he can introduce him to his cousin waiting in a cab. Without much ado, and without putting on
his shirt as he was only in his pajama pants, he followed the defendant where he saw a parked cab
opposite the street. To his complete surprise, an American jumped out of the cab with a drawn high-
powered gun. He was in the company of about 30 to 40 Filipino soldiers with 6 Americans, all armed.
He was handcuffed and after about 20 minutes in the street, he was brought inside the house by the
defendant. He was made to sit down while in handcuffs while the defendant was inside his bedroom.
The defendant came out of the bedroom and out from defendant's attaché case, he took something and
placed it on the table in front of the plaintiff. They also took plaintiff's wife who was at that time at
the boutique near his house and likewise arrested Torabian, who was playing chess with him in the
bedroom and both were handcuffed together. Plaintiff was not told why he was being handcuffed and
why the privacy of his house, especially his bedroom was invaded by defendant. He was not allowed
to use the telephone. In fact, his telephone was unplugged. He asked for any warrant, but the
defendant told him to `shut up.’ He was nevertheless told that he would be able to call for his lawyer
who can defend him.
"The plaintiff took note of the fact that when the defendant invited him to come out to meet his
cousin, his safe was opened where he kept the $24,000.00 the defendant paid for the carpets and
another $8,000.00 which he also placed in the safe together with a bracelet worth $15,000.00 and a
pair of earrings worth $10,000.00. He also discovered missing upon his release his 8 pieces hand-
made Persian carpets, valued at $65,000.00, a painting he bought for P30,000.00 together with his TV
and betamax sets. He claimed that when he was handcuffed, the defendant took his keys from his
wallet. There was, therefore, nothing left in his house.
"That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in various
newspapers, particularly in Australia, America, Central Asia and in the Philippines. He was identified
in the papers as an international drug trafficker. x x x
In fact, the arrest of defendant and Torabian was likewise on television, not only in the Philippines,
but also in America and in Germany. His friends in said places informed him that they saw him on
TV with said news.
"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed
together, where they were detained for three days without food and water."1
During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo and
moved for extension of time to file an answer pending a supposed advice from the United States
Department of State and Department of Justice on the defenses to be raised. The trial court granted
the motion. On 27 October 1988, Scalzo filed another special appearance to quash the summons on
the ground that he, not being a resident of the Philippines and the action being one in personam, was
beyond the processes of the court. The motion was denied by the court, in its order of 13 December
1988, holding that the filing by Scalzo of a motion for extension of time to file an answer to the
complaint was a voluntary appearance equivalent to service of summons which could likewise be
construed a waiver of the requirement of formal notice. Scalzo filed a motion for reconsideration of
the court order, contending that a motion for an extension of time to file an answer was not a
voluntary appearance equivalent to service of summons since it did not seek an affirmative relief.
Scalzo argued that in cases involving the United States government, as well as its agencies and
officials, a motion for extension was peculiarly unavoidable due to the need (1) for both the
Department of State and the Department of Justice to agree on the defenses to be raised and (2) to
refer the case to a Philippine lawyer who would be expected to first review the case. The court a quo
denied the motion for reconsideration in its order of 15 October 1989.
Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No. 17023,
assailing the denial. In a decision, dated 06 October 1989, the appellate court denied the petition and
affirmed the ruling of the trial court. Scalzo then elevated the incident in a petition for review on
certiorari, docketed G.R. No. 91173, to this Court. The petition, however, was denied for its failure to
comply with SC Circular No. 1-88; in any event, the Court added, Scalzo had failed to show that the
appellate court was in error in its questioned judgment.
Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring Scalzo in
default for his failure to file a responsive pleading (answer) and (b) setting the case for the reception
of evidence. On 12 March 1990, Scalzo filed a motion to set aside the order of default and to admit
his answer to the complaint. Granting the motion, the trial court set the case for pre-trial. In his
answer, Scalzo denied the material allegations of the complaint and raised the affirmative defenses
(a) of Minucher’s failure to state a cause of action in his complaint and (b) that Scalzo had acted in
the discharge of his official duties as being merely an agent of the Drug Enforcement Administration
of the United States Department of Justice. Scalzo interposed a counterclaim of P100,000.00 to
answer for attorneys' fees and expenses of litigation.
Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo filed a
motion to dismiss the complaint on the ground that, being a special agent of the United States Drug
Enforcement Administration, he was entitled to diplomatic immunity. He attached to his motion
Diplomatic Note No. 414 of the United States Embassy, dated 29 May 1990, addressed to the
Department of Foreign Affairs of the Philippines and a Certification, dated 11 June 1990, of Vice
Consul Donna Woodward, certifying that the note is a true and faithful copy of its original. In an
order of 25 June 1990, the trial court denied the motion to dismiss.
On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed G.R.
No. 94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the
complaint in Civil Case No. 88-45691 be ordered dismissed. The case was referred to the Court of
Appeals, there docketed CA-G.R. SP No. 22505, per this Court’s resolution of 07 August 1990. On
31 October 1990, the Court of Appeals promulgated its decision sustaining the diplomatic immunity
of Scalzo and ordering the dismissal of the complaint against him. Minucher filed a petition for
review with this Court, docketed G.R. No. 97765 and entitled "Khosrow Minucher vs. the Honorable
Court of Appeals, et. al." (cited in 214 SCRA 242), appealing the judgment of the Court of Appeals.
In a decision, dated 24 September 1992, penned by Justice (now Chief Justice) Hilario Davide, Jr.,
this Court reversed the decision of the appellate court and remanded the case to the lower court for
trial. The remand was ordered on the theses (a) that the Court of Appeals erred in granting the motion
to dismiss of Scalzo for lack of jurisdiction over his person without even considering the issue of the
authenticity of Diplomatic Note No. 414 and (b) that the complaint contained sufficient allegations to
the effect that Scalzo committed the imputed acts in his personal capacity and outside the scope of his
official duties and, absent any evidence to the contrary, the issue on Scalzo’s diplomatic immunity
could not be taken up.
The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial court
reached a decision; it adjudged:
"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered for the
plaintiff, who successfully established his claim by sufficient evidence, against the defendant in the
manner following:
"`Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00; moral
damages in the sum of P10 million; exemplary damages in the sum of P100,000.00; attorney's fees in
the sum of P200,000.00 plus costs.
`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court on this
judgment to answer for the unpaid docket fees considering that the plaintiff in this case instituted this
action as a pauper litigant.’"2
While the trial court gave credence to the claim of Scalzo and the evidence presented by him that he
was a diplomatic agent entitled to immunity as such, it ruled that he, nevertheless, should be held
accountable for the acts complained of committed outside his official duties. On appeal, the Court of
Appeals reversed the decision of the trial court and sustained the defense of Scalzo that he was
sufficiently clothed with diplomatic immunity during his term of duty and thereby immune from the
criminal and civil jurisdiction of the "Receiving State" pursuant to the terms of the Vienna
Convention.
Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1) whether
or not the doctrine of conclusiveness of judgment, following the decision rendered by this Court in
G.R. No. 97765, should have precluded the Court of Appeals from resolving the appeal to it in an
entirely different manner, and (2) whether or not Arthur Scalzo is indeed entitled to diplomatic
immunity.
The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require 1) the
finality of the prior judgment, 2) a valid jurisdiction over the subject matter and the parties on the part
of the court that renders it, 3) a judgment on the merits, and 4) an identity of the parties, subject
matter and causes of action.3 Even while one of the issues submitted in G.R. No. 97765 - "whether or
not public respondent Court of Appeals erred in ruling that private respondent Scalzo is a diplomat
immune from civil suit conformably with the Vienna Convention on Diplomatic Relations" - is also a
pivotal question raised in the instant petition, the ruling in G.R. No. 97765, however, has not resolved
that point with finality. Indeed, the Court there has made this observation -
"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on 13
June 1990, unequivocally states that he would present documentary evidence consisting of DEA
records on his investigation and surveillance of plaintiff and on his position and duties as DEA
special agent in Manila. Having thus reserved his right to present evidence in support of his position,
which is the basis for the alleged diplomatic immunity, the barren self-serving claim in the belated
motion to dismiss cannot be relied upon for a reasonable, intelligent and fair resolution of the issue of
diplomatic immunity."4
Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a
signatory, grants him absolute immunity from suit, describing his functions as an agent of the United
States Drugs Enforcement Agency as "conducting surveillance operations on suspected drug dealers
in the Philippines believed to be the source of prohibited drugs being shipped to the U.S., (and)
having ascertained the target, (he then) would inform the Philippine narcotic agents (to) make the
actual arrest." Scalzo has submitted to the trial court a number of documents -
1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;
2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;
3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;
4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and
5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.
6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of Foreign
Affairs, dated 27 June 1990 forwarding Embassy Note No. 414 to the Clerk of Court of RTC Manila,
Branch 19 (the trial court);
7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and
8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol, Department of Foreign
Affairs, through Asst. Sec. Emmanuel Fernandez, addressed to the Chief Justice of this Court.5
The documents, according to Scalzo, would show that: (1) the United States Embassy accordingly
advised the Executive Department of the Philippine Government that Scalzo was a member of the
diplomatic staff of the United States diplomatic mission from his arrival in the Philippines on 14
October 1985 until his departure on 10 August 1988; (2) that the United States Government was firm
from the very beginning in asserting the diplomatic immunity of Scalzo with respect to the case
pursuant to the provisions of the Vienna Convention on Diplomatic Relations; and (3) that the United
States Embassy repeatedly urged the Department of Foreign Affairs to take appropriate action to
inform the trial court of Scalzo’s diplomatic immunity. The other documentary exhibits were
presented to indicate that: (1) the Philippine government itself, through its Executive Department,
recognizing and respecting the diplomatic status of Scalzo, formally advised the "Judicial
Department" of his diplomatic status and his entitlement to all diplomatic privileges and immunities
under the Vienna Convention; and (2) the Department of Foreign Affairs itself authenticated
Diplomatic Note No. 414. Scalzo additionally presented Exhibits "9" to "13" consisting of his reports
of investigation on the surveillance and subsequent arrest of Minucher, the certification of the Drug
Enforcement Administration of the United States Department of Justice that Scalzo was a special
agent assigned to the Philippines at all times relevant to the complaint, and the special power of
attorney executed by him in favor of his previous counsel6 to show (a) that the United States
Embassy, affirmed by its Vice Consul, acknowledged Scalzo to be a member of the diplomatic staff
of the United States diplomatic mission from his arrival in the Philippines on 14 October 1985 until
his departure on 10 August 1988, (b) that, on May 1986, with the cooperation of the Philippine law
enforcement officials and in the exercise of his functions as member of the mission, he investigated
Minucher for alleged trafficking in a prohibited drug, and (c) that the Philippine Department of
Foreign Affairs itself recognized that Scalzo during his tour of duty in the Philippines (14 October
1985 up to 10 August 1988) was listed as being an Assistant Attaché of the United States diplomatic
mission and accredited with diplomatic status by the Government of the Philippines. In his Exhibit
12, Scalzo described the functions of the overseas office of the United States Drugs Enforcement
Agency, i.e., (1) to provide criminal investigative expertise and assistance to foreign law enforcement
agencies on narcotic and drug control programs upon the request of the host country, 2) to establish
and maintain liaison with the host country and counterpart foreign law enforcement officials, and 3)
to conduct complex criminal investigations involving international criminal conspiracies which affect
the interests of the United States.
The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law
and, by the time of its ratification on 18 April 1961, its rules of law had long become stable. Among
the city states of ancient Greece, among the peoples of the Mediterranean before the establishment of
the Roman Empire, and among the states of India, the person of the herald in time of war and the
person of the diplomatic envoy in time of peace were universally held sacrosanct.7 By the end of the
16th century, when the earliest treatises on diplomatic law were published, the inviolability of
ambassadors was firmly established as a rule of customary international law.8 Traditionally, the
exercise of diplomatic intercourse among states was undertaken by the head of state himself, as being
the preeminent embodiment of the state he represented, and the foreign secretary, the official usually
entrusted with the external affairs of the state. Where a state would wish to have a more prominent
diplomatic presence in the receiving state, it would then send to the latter a diplomatic mission.
Conformably with the Vienna Convention, the functions of the diplomatic mission involve, by and
large, the representation of the interests of the sending state and promoting friendly relations with the
receiving state.9
The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or
nuncios accredited to the heads of state,10 (b) envoys,11 ministers or internuncios accredited to the
heads of states; and (c) charges d' affairs12 accredited to the ministers of foreign affairs.13
Comprising the "staff of the (diplomatic) mission" are the diplomatic staff, the administrative staff
and the technical and service staff. Only the heads of missions, as well as members of the diplomatic
staff, excluding the members of the administrative, technical and service staff of the mission, are
accorded diplomatic rank. Even while the Vienna Convention on Diplomatic Relations provides for
immunity to the members of diplomatic missions, it does so, nevertheless, with an understanding that
the same be restrictively applied. Only "diplomatic agents," under the terms of the Convention, are
vested with blanket diplomatic immunity from civil and criminal suits. The Convention defines
"diplomatic agents" as the heads of missions or members of the diplomatic staff, thus impliedly
withholding the same privileges from all others. It might bear stressing that even consuls, who
represent their respective states in concerns of commerce and navigation and perform certain
administrative and notarial duties, such as the issuance of passports and visas, authentication of
documents, and administration of oaths, do not ordinarily enjoy the traditional diplomatic immunities
and privileges accorded diplomats, mainly for the reason that they are not charged with the duty of
representing their states in political matters. Indeed, the main yardstick in ascertaining whether a
person is a diplomat entitled to immunity is the determination of whether or not he performs duties of
diplomatic nature.
Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant Attaché of the
United States diplomatic mission and was accredited as such by the Philippine Government. An
attaché belongs to a category of officers in the diplomatic establishment who may be in charge of its
cultural, press, administrative or financial affairs. There could also be a class of attaches belonging to
certain ministries or departments of the government, other than the foreign ministry or department,
who are detailed by their respective ministries or departments with the embassies such as the military,
naval, air, commercial, agricultural, labor, science, and customs attaches, or the like. Attaches assist a
chief of mission in his duties and are administratively under him, but their main function is to
observe, analyze and interpret trends and developments in their respective fields in the host country
and submit reports to their own ministries or departments in the home government.14 These officials
are not generally regarded as members of the diplomatic mission, nor are they normally designated as
having diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 and
791, all issued post litem motam, respectively, on 29 May 1990, 25 October 1991 and 17 November
1992. The presentation did nothing much to alleviate the Court's initial reservations in G.R. No.
97765, viz:
"While the trial court denied the motion to dismiss, the public respondent gravely abused its
discretion in dismissing Civil Case No. 88-45691 on the basis of an erroneous assumption that simply
because of the diplomatic note, the private respondent is clothed with diplomatic immunity, thereby
divesting the trial court of jurisdiction over his person.
"x x x x x x x x x
"And now, to the core issue - the alleged diplomatic immunity of the private respondent. Setting aside
for the moment the issue of authenticity raised by the petitioner and the doubts that surround such
claim, in view of the fact that it took private respondent one (1) year, eight (8) months and seventeen
(17) days from the time his counsel filed on 12 September 1988 a Special Appearance and Motion
asking for a first extension of time to file the Answer because the Departments of State and Justice of
the United States of America were studying the case for the purpose of determining his defenses,
before he could secure the Diplomatic Note from the US Embassy in Manila, and even granting for
the sake of argument that such note is authentic, the complaint for damages filed by petitioner cannot
be peremptorily dismissed.
"x x x x x x x x x
"There is of course the claim of private respondent that the acts imputed to him were done in his
official capacity. Nothing supports this self-serving claim other than the so-called Diplomatic Note. x
x x. The public respondent then should have sustained the trial court's denial of the motion to dismiss.
Verily, it should have been the most proper and appropriate recourse. It should not have been
overwhelmed by the self-serving Diplomatic Note whose belated issuance is even suspect and whose
authenticity has not yet been proved. The undue haste with which respondent Court yielded to the
private respondent's claim is arbitrary."
A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued by the
Office of Protocol of the Department of Foreign Affairs and signed by Emmanuel C. Fernandez,
Assistant Secretary, certifying that "the records of the Department (would) show that Mr. Arthur W.
Scalzo, Jr., during his term of office in the Philippines (from 14 October 1985 up to 10 August 1988)
was listed as an Assistant Attaché of the United States diplomatic mission and was, therefore,
accredited diplomatic status by the Government of the Philippines." No certified true copy of such
"records," the supposed bases for the belated issuance, was presented in evidence.
Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of
the government. In World Health Organization vs. Aquino,15 the Court has recognized that, in such
matters, the hands of the courts are virtually tied. Amidst apprehensions of indiscriminate and
incautious grant of immunity, designed to gain exemption from the jurisdiction of courts, it should
behoove the Philippine government, specifically its Department of Foreign Affairs, to be most
circumspect, that should particularly be no less than compelling, in its post litem motam issuances. It
might be recalled that the privilege is not an immunity from the observance of the law of the
territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of
territorial jurisdiction.16 The government of the United States itself, which Scalzo claims to be acting
for, has formulated its standards for recognition of a diplomatic agent. The State Department policy is
to only concede diplomatic status to a person who possesses an acknowledged diplomatic title and
"performs duties of diplomatic nature."17 Supplementary criteria for accreditation are the possession
of a valid diplomatic passport or, from States which do not issue such passports, a diplomatic note
formally representing the intention to assign the person to diplomatic duties, the holding of a non-
immigrant visa, being over twenty-one years of age, and performing diplomatic functions on an
essentially full-time basis.18 Diplomatic missions are requested to provide the most accurate and
descriptive job title to that which currently applies to the duties performed. The Office of the Protocol
would then assign each individual to the appropriate functional category.19
But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently
established that, indeed, he worked for the United States Drug Enforcement Agency and was tasked
to conduct surveillance of suspected drug activities within the country on the dates pertinent to this
case. If it should be ascertained that Arthur Scalzo was acting well within his assigned functions
when he committed the acts alleged in the complaint, the present controversy could then be resolved
under the related doctrine of State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of
customary international law then closely identified with the personal immunity of a foreign sovereign
from suit20 and, with the emergence of democratic states, made to attach not just to the person of the
head of state, or his representative, but also distinctly to the state itself in its sovereign capacity.21 If
the acts giving rise to a suit are those of a foreign government done by its foreign agent, although not
necessarily a diplomatic personage, but acting in his official capacity, the complaint could be barred
by the immunity of the foreign sovereign from suit without its consent. Suing a representative of a
state is believed to be, in effect, suing the state itself. The proscription is not accorded for the benefit
of an individual but for the State, in whose service he is, under the maxim - par in parem, non habet
imperium - that all states are sovereign equals and cannot assert jurisdiction over one another.22 The
implication, in broad terms, is that if the judgment against an official would require the state itself to
perform an affirmative act to satisfy the award, such as the appropriation of the amount needed to pay
the damages decreed against him, the suit must be regarded as being against the state itself, although
it has not been formally impleaded.23
In United States of America vs. Guinto,24 involving officers of the United States Air Force and
special officers of the Air Force Office of Special Investigators charged with the duty of preventing
the distribution, possession and use of prohibited drugs, this Court has ruled -
"While the doctrine (of state immunity) appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state for acts allegedly
performed by them in the discharge of their duties. x x x. It cannot for a moment be imagined that
they were acting in their private or unofficial capacity when they apprehended and later testified
against the complainant. It follows that for discharging their duties as agents of the United States,
they cannot be directly impleaded for acts imputable to their principal, which has not given its
consent to be sued. x x x As they have acted on behalf of the government, and within the scope of
their authority, it is that government, and not the petitioners personally, [who were] responsible for
their acts."25
This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals26 elaborates:
"It is a different matter where the public official is made to account in his capacity as such for acts
contrary to law and injurious to the rights of the plaintiff. As was clearly set forth by Justice Zaldivar
in Director of the Bureau of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368):
`Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of government
officials or officers are not acts of the State, and an action against the officials or officers by one
whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit
against the State within the rule of immunity of the State from suit. In the same tenor, it has been said
that an action at law or suit in equity against a State officer or the director of a State department on
the ground that, while claiming to act for the State, he violates or invades the personal and property
rights of the plaintiff, under an unconstitutional act or under an assumption of authority which he
does not have, is not a suit against the State within the constitutional provision that the State may not
be sued without its consent. The rationale for this ruling is that the doctrine of state immunity cannot
be used as an instrument for perpetrating an injustice.
be liable in his personal private capacity for whatever damage he may have caused by his act done
with malice and in bad faith or beyond the scope of his authority and jurisdiction."27
A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long
as it can be established that he is acting within the directives of the sending state. The consent of the
host state is an indispensable requirement of basic courtesy between the two sovereigns. Guinto and
Shauf both involve officers and personnel of the United States, stationed within Philippine territory,
under the RP-US Military Bases Agreement. While evidence is wanting to show any similar
agreement between the governments of the Philippines and of the United States (for the latter to send
its agents and to conduct surveillance and related activities of suspected drug dealers in the
Philippines), the consent or imprimatur of the Philippine government to the activities of the United
States Drug Enforcement Agency, however, can be gleaned from the facts heretofore elsewhere
mentioned. The official exchanges of communication between agencies of the government of the two
countries, certifications from officials of both the Philippine Department of Foreign Affairs and the
United States Embassy, as well as the participation of members of the Philippine Narcotics Command
in the "buy-bust operation" conducted at the residence of Minucher at the behest of Scalzo, may be
inadequate to support the "diplomatic status" of the latter but they give enough indication that the
Philippine government has given its imprimatur, if not consent, to the activities within Philippine
territory of agent Scalzo of the United States Drug Enforcement Agency. The job description of
Scalzo has tasked him to conduct surveillance on suspected drug suppliers and, after having
ascertained the target, to inform local law enforcers who would then be expected to make the arrest.
In conducting surveillance activities on Minucher, later acting as the poseur-buyer during the buy-
bust operation, and then becoming a principal witness in the criminal case against Minucher, Scalzo
hardly can be said to have acted beyond the scope of his official function or duties.
All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States
Drug Enforcement Agency allowed by the Philippine government to conduct activities in the country
to help contain the problem on the drug traffic, is entitled to the defense of state immunity from suit.
WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.
SO ORDERED.

"x x x x x x x x x

"(T)he doctrine of immunity from suit will not apply and may not be invoked where the public
official is being sued in his private and personal capacity as an ordinary citizen. The cloak of
protection afforded the officers and agents of the government is removed the moment they are sued in
their individual capacity. This situation usually arises where the public official acts without authority
or in excess of the powers vested in him. It is a well-settled principle of law that a public official may

Case #9 G.R. No. 125865 January 28, 2000
JEFFREY LIANG (HUEFENG) v. PEOPLE OF THE PHILIPPINES
Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for
allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before
the Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of grave oral defamation
docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant
issued by the MeTC. After fixing petitioner's bail at P2,400.00 per criminal charge, the MeTC
released him to the custody of the Security Officer of ADB. The next day, the MeTC judge received
an "office of protocol" from the Department of Foreign Affairs (DFA) stating that petitioner is
covered by immunity from legal process under Section 45 of the Agreement between the ADB and
the Philippine Government regarding the Headquarters of the ADB (hereinafter Agreement) in the
country. Based on the said protocol communication that petitioner is immune from suit, the MeTC
judge without notice to the prosecution dismissed the two criminal cases. The latter filed a motion for
reconsideration which was opposed by the DFA. When its motion was denied, the prosecution filed a
petition for certiorari and mandamus with the Regional Trial Court (RTC) of Pasig City which set
aside the MeTC rulings and ordered the latter court to enforce the warrant of arrest it earlier issued.
After the motion for reconsideration was denied, petitioner elevated the case to this Court via a
petition for review arguing that he is covered by immunity under the Agreement and that no
preliminary investigation was held before the criminal cases were filed in court.1âwphi1.nêt
The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face the communication from the DFA that
petitioner is covered by any immunity. The DFA's determination that a certain person is covered by
immunity is only preliminary which has no binding effect in courts. In receiving ex-parte the DFA's
advice and in motu propio dismissing the two criminal cases without notice to the prosecution, the
latter's right to due process was violated. It should be noted that due process is a right of the accused
as much as it is of the prosecution. The needed inquiry in what capacity petitioner was acting at the
time of the alleged utterances requires for its resolution evidentiary basis that has yet to be presented
at the proper time.1 At any rate, it has been ruled that the mere invocation of the immunity clause
does not ipso facto result in the dropping of the charges.2
Second, under Section 45 of the Agreement which provides:
Officers and staff of the Bank including for the purpose of this Article experts and consultants
performing missions for the Bank shall enjoy the following privileges and immunities:
a.) immunity from legal process with respect to acts performed by them in their official capacity
except when the Bank waives the immunity.
the immunity mentioned therein is not absolute, but subject to the exception that the acts was done in
"official capacity." It is therefore necessary to determine if petitioner's case falls within the ambit of
Section 45(a). Thus, the prosecution should have been given the chance to rebut the DFA protocol
and it must be accorded the opportunity to present its controverting evidence, should it so desire.
Third, slandering a person could not possibly be covered by the immunity agreement because our
laws do not allow the commission of a crime, such as defamation, in the name of official duty.3 The
imputation of theft is ultra vires and cannot be part of official functions. It is well-settled principle of
law that a public official may be liable in his personal private capacity for whatever damage he may
have caused by his act done with malice or in bad faith or beyond the scope of his authority or
jurisdiction.4 It appears that even the government's chief legal counsel, the Solicitor General, does
not support the stand taken by petitioner and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming
petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state except in the case
of an action relating to any professional or commercial activity exercised by the diplomatic agent in
the receiving state outside his official functions.5 As already mentioned above, the commission of a
crime is not part of official duty.
Finally, on the contention that there was no preliminary investigation conducted, suffice it to say that
preliminary investigation is not a matter of right in cases cognizable by the MeTC such as the one at
bar.6 Being purely a statutory right, preliminary investigation may be invoked only when specifically
granted by law.7 The rule on the criminal procedure is clear that no preliminary investigation is
required in cases falling within the jurisdiction of the MeTC.8 Besides the absence of preliminary
investigation does not affect the court's jurisdiction nor does it impair the validity of the information
or otherwise render it defective.9
WHEREFORE, the petition is DENIED.
SO ORDERED.
Case #10 G.R. No. L-35748 December 14, 1931
THE PEOPLE OF THE PHILIPPINE ISLANDS v. ROMANA SILVESTRE and MARTIN
ATIENZA
Martin Atienza and Romana Silvestre appeal to this court from the judgment of the Court of First
Instance of Bulacan convicting them upon the information of the crime of arson as follows: The
former as principal by direct participation, sentenced to fourteen years, eight months, and one day of
cadena temporal, in accordance with paragraph 2 of article 550, Penal Code; and the latter as
accomplice, sentenced to six years and one day of presidio mayor; and both are further sentenced to
the accessories of the law, and to pay each of the persons whose houses were destroyed by the fire,
jointly and severally, the amount set forth in the information, with costs.
Counsel appointed by the court to defend the accused- appellants de oficio, after delivering his
argument, prayed for the affirmance of the judgment with reference to the appellant Martin Atienza,
and makes the following assignments of error with reference to Romana Silvestre, to wit:
1. The lower court erred in convincing Romana Silvestre as accomplice of the crime charged in the
information.
2. Finally, the court erred in not acquitting said defendant from the information upon the ground of
insufficient evidence, or at the least, of reasonable doubt.
The following facts were proved at the hearing beyond a reasonable doubt:
Romana Silvestre, wife of Domingo Joaquin by her second marriage, cohabited with her codefendant
Martin Atienza from the month of March, 1930, in the barrio of Masocol, municipality of Paombong,
Province of Bulacan. On May 16, 1930, the complaining husband, Domingo Joaquin, filed with the
justice of the peace for that municipality, a sworn complaint for adultery, supported by affidavits of
Gerardo Cabigao and Castor de la Cruz (Exhibit B). On the same date, May 16, 1930, the said
accused were arrested on a warrant issued by said justice of the peace. On the 20th of the month, they
were released on bail, each giving a personal bond of P6,000. Pending the preliminary investigation
of the case, the two defendants begged the municipal president of Paombong, Francisco Suerte
Felipe, to speak to the complaint, Domingo Joaquin, urging him to withdraw the complaint, the two
accused binding themselves to discontinue cohabitation, and promising not to live again in the barrio
of Masocol; Martin Atienza voluntarily signed the promise (Exhibit A). The municipal president
transmitted the defendants' petition to the complaining husband, lending it his support. Domingo
Joaquin acceded to it, and on May 20, 1930, filed a motion for the dismissal of his complaint. In
consideration of this petition, the justice of the peace of Paombong dismissed the adultery case
commenced against the accused, and cancelled the bonds given by them, with the costs against the
complainant.
The accused then left the barrio of Masocol and went to live in that of Santo Niño, in the same
municipality of Paombong.
About November 20, 1930, the accused Romana Silvestre met her son by her former marriage,
Nicolas de la Cruz, in the barrio of Santo Niño, and under pretext of asking him for some nipa leaves,
followed him home to the village of Masocol, and remained there. The accused, Martin Atienza, who
had continued to cohabit with said Romana Silvestre, followed her and lived in the home of Nicolas
de la Cruz. On the night of November 25, 1930, while Nicolas de la Cruz and his wife, Antonia de la
Cruz, were gathered together with the appellants herein after supper, Martin Atienza told said couple
to take their furniture out of the house because he was going to set fire to it. Upon being asked by
Nicolas and Antonia why he wanted to set fire to the house, he answered that that was the only way
he could be revenged upon the people of Masocol who, he said, had instigated the charge of adultery
against him and his codefendant, Romana Silvestre. As Martin Atienza was at that time armed with a
pistol, no one dared say anything to him, not even Romana Silvestre, who was about a meter away
from her codefendant. Alarmed at what Martin Atienza had said, the couple left the house at once to
communicate with the barrio lieutenant, Buenaventura Ania, as to what they had just heard Martin
Atienza say; but they had hardly gone a hundred arms' length when they heard cries of "Fire! Fire!"
Turning back they saw their home in flames, and ran back to it; but seeing that the fire had assumed
considerable proportions, Antonia took refuge in the schoolhouse with her 1 year old babe in her
arms, while Nicolas went to the home of his parents-in-law, took up the furniture he had deposited
there, and carried it to the schoolhouse. The fire destroyed about forty-eight houses. Tomas Santiago
coming from the barrio artesian well, and Tomas Gonzalez, teacher at the barrio school of Masocol,
and Felipe Clemente, an old man 61 years of age, coming from their homes, to the house on fire, saw
Martin Atienza going away from the house where the fire started, and Romana Silvestre leaving
it.lawphil.net
As stated in the beginning, counsel appointed by this court to defend the accused-appellant de oficio,
prays for the affirmance of the judgment appealed from with reference to defendant Martin Atienza.
The facts related heretofore, proved beyond a reasonable doubt at the hearing, justify this petition of
the de oficio counsel, and establish beyond a reasonable doubt said defendant's guilt of arson as
charged, as principal by direct participation.
With respect to the accused-appellant Romana Silvestre, the only evidence of record against her are:
That, being married, she lived adulterously with her codefendant Martin Atienza, a married man; that
both were denounced for adultery by Domingo Joaquin, Romana Silvestre's second husband; that in
view of the petition of the accused, who promised to discontinue their life together, and to leave the
barrio of Masocol, and through the good offices of the municipal president of Paombong, the
complaining husband asked for the dismissal of the complaint; that in pursuance of their promise,
both of the accused went to lived in the barrio of Santo Niño, in the same municipality; that under
pretext for some nipa leaves from her son by her former marriage, Nicolas de la Cruz, who had gone
to the barrio of Santo Niño, Romana Silvestre followed him to his house in the barrio of Masocol on
November 23, 1930, and remained there; that her codefendant, Martin Atienza followed her, and
stayed with his coaccused in the same house; that on the night of November 25, 1930, at about 8
o'clock, while all were gathered together at home after supper, Martin Atienza expressed his intention
of burning the house as the only means of taking his revenge on the Masocol resident, who had
instigated Domingo Joaquin to file the complaint for adultery against them, which compelled them to
leave the barrio of Masocol; that Romana Silvestre listened to her codefendant's threat without raising
a protest, and did not give the alarm when the latter set fire to the house. Upon the strength of these
facts, the court below found her guilty of arson as accomplice.
Article 14 of the Penal Code, considered in connection with article 13, defines an accomplice to be
one who does not take a direct part in the commission of the act, who does not force or induce other
to commit it, nor cooperates in the commission of the act by another act without which it would not
have been accomplished, yet cooperates in the execution of the act by previous or simultaneous
actions.
Now then, which previous or simultaneous acts complicate Romana Silvestre in the crime of arson
committed by her codefendant Martin Atienza? Is it her silence when he told the spouses, Nicolas de
la Cruz and Antonia de la Cruz, to take away their furniture because he was going to set fire to their
house as the only means of revenging himself on the barrio residents, her passive presence when
Martin Atienza set fire to the house, where there is no evidence of conspiracy or cooperation, and her one-half of the costs de oficio. So ordered.
failure to give the alarm when the house was already on fire?

The complicity which is penalized requires a certain degree of cooperation, whether moral, through
advice, encouragement, or agreement, or material, through external acts. In the case of the accused-
appellant Romana Silvestre, there is no evidence of moral or material cooperation, and none of an
agreement to commit the crime in question. Her mere presence and silence while they are
simultaneous acts, do not constitute cooperation, for it does not appear that they encouraged or
nerved Martin Atienza to commit the crime of arson; and as for her failure to give the alarm, that
being a subsequent act it does not make her liable as an accomplice.

The trial court found the accused-appellant Martin Atienza guilty of arson, defined and penalized in
article 550, paragraph 2, of the Penal Code, which reads as follows:

ART. 550. The penalty of cadena temporal shall be imposed upon:

xxx xxx xxx

2. Any person who shall set fire to any inhabited house or any building in which people are
accustomed to meet together, without knowing whether or not such building or house was occupied
at the time, or any freight train in motion, if the damage caused in such cases shall exceed six
thousand two hundred and fifty pesetas.

While the defendant indeed knew that besides himself and his codefendant, Romana Silvestre, there
was nobody in De la Cruz's house at the moment of setting fire to it, he cannot be convicted merely
arson less serious than what the trial court sentenced him for, inasmuch as that house was the means
of destroying the others, and he did not know whether these were occupied at the time or not. If the
greater seriousness of setting fire to an inhabited house, when the incendiary does not know whether
there are people in it at the time, depends upon the danger to which the inmates are exposed, not less
serious is the arson committed by setting fire to inhabited houses by means of another inhabited
house which the firebrand knew to be empty at the moment of committing the act, if he did not know
whether there were people or not in the others, inasmuch as the same danger exists.

With the evidence produced at the trial, the accused-appellant Martin Atienza might have been
convicted of the crime of arson in the most serious degree provided for in article 549 of the Penal
Code, if the information had alleged that at the time of setting fire to the house, the defendant knew
that the other houses were occupied, taking into account that barrio residents are accustomed to retire
at the tolling of the bell for the souls in purgatory, i.e., at 8 o'clock at night.

For all the foregoing considerations, we are of the opinion and so hold, that: (1) Mere passive
presence at the scene of another's crime, mere silence and failure to give the alarm, without evidence
of agreement or conspiracy, do not constitute the cooperation required by article 14 of the Penal Code
for complicity in the commission of the crime witnessed passively, or with regard to which one has
kept silent; and (2) he who desiring to burn the houses in a barrio, without knowing whether there are
people in them or not, sets fire to one known to be vacant at the time, which results in destroying the
rest, commits the crime of arson, defined and penalized in article 550, paragraph 2, Penal Code.

By virtue wherefore, the judgment appealed from is modified as follows: It is affirmed with reference
to the accused-appellant Martin Atienza, and reversed with reference to the accused-appellant
Romana Silvestre, who is hereby acquitted with