G.R. No.

225696, April 08, 2019

ATTY. BERNARDO T. CONSTANTINO, PETITIONER, v. PEOPLE OF THE

PHILIPPINES, RESPONDENT.

DECISION

LEONEN, J.:

For a notary public to be found guilty of falsifying a notarial will, the prosecution must
prove that he or she has falsified or simulated the signatures of the testator or the
instrumental witnesses to make it appear that they participated in the execution of the
document when they did not.

This resolves a Petition for Review on Certiorari 1 assailing the January 19, 2016
Decision2 and June 9, 2016 Resolution3 of the Court of Appeals in CA-G.R. CR No.
36327. The Court of Appeals affirmed the Regional Trial Court November 28, 2013
Judgment4 finding Atty. Bernardo T. Constantino (Atty. Constantino) guilty of falsification
of a public document under Article 171(2) of the Revised Penal Code.

On May 27, 2008, an Information was filed against Atty. Constantino and Teresita C.
Saliganan (Saliganan), charging them with falsification of a public document. 5 The
Information read:

That on or about September 9, 2001 in the City of Laoag, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, ATTY. BERNARDO
CONSTANTINO taking advantage of his being a notary public for Laoag City and Ilocos
Norte, together with TERESITA C. SALIGANAN, conspiring, confederating and mutually
helping each other, did then and there willfully, unlawfully and feloniously cause to
appear in the LAST WILL AND TESTAMENT executed by Severino C. Cabrales in favor
of the accused TERESITA C. SALIGANAN, known as Doc. No. 15909, Page No. 71,
Book No. XXXI, Series of 2001 of the Notarial Register of Atty. BERNARDO
CONSTANTINO, a notary public for Laoag City and Province of Ilocos Norte, that
SEVERINO C. CABRALES participated in the execution of the LAST WILL AND
TESTAMENT, when in fact he did not so participate, and making it appear that the
testator Severino Cabrales and the attesting witnesses, Dr. Eliezer Asuncion, Mary
Balintona and Dr. Justino Balintona acknowledge the Last Will and Testament before
Atty. Bernardo Constantino while in truth they never appeared to acknowledge the
same.6

On June 13, 2008, warrants of arrest were issued against Atty. Constantino and
Saliganan. On September 24, 2008, Atty. Constantino filed a Motion for Recognizance
in Lieu of Bail as he was unable to post the required bond of P24,000.00. 7
In its October 28, 2008 Order, the Regional Trial Court denied the Motion. Atty.
Constantino, through his wife Editha, was able to post bail on August 23, 2010.
Saliganan, however, remained at large. 8

On arraignment, Atty. Constantino pleaded not guilty to the crime charged. Thus, trial on
the merits ensued.9

According to the prosecution, sometime in June 1998, Severino Cabrales (Severino),

the father of Saliganan, suffered a stroke and was rushed to the hospital, where he was
confined for two (2) weeks. When he was discharged, he returned to the family home in
Laoag City. There, Saliganan stayed and took care of Severino until his death on
December 6, 2003.10

On February 8, 2005, a Petition for Probate of Severino's alleged Last Will and
Testament was filed before the Regional Trial Court of Laoag City.

Upon learning of the probate proceedings, Fernando Cabrales (Fernando), a son of

Severino, secured a copy of the purported Last Will and Testament. He claimed that the
signature in the document was not Severino's. The document was notarized by Atty.
Constantino and registered in Book No. 31, Page No. 71 of Atty. Constantino's Notarial
Register, series of 2001. The witnesses who signed it were Rosalinda Cu (Cu), Dr.
Justino Balintona and his wife Mary Balintona (the Balintona Spouses), and Dr. Eliezer
John Asuncion (Dr. Asuncion).11

The Joint Acknowledgment in the Last Will and Testament read:

JOINT ACKNOWLEDGMENT

BEFORE ME, a notary public for and in the City of Laoag, Philippines, this 9 th day of
September, 2001, personally appeared:

The testator, SEVERINO CABRALES, with Community Tax Certificate No. 06002287
dated January 2, 2001, issued in Laoag City;

Witness, DR. JUSTINO G. BALINTONA, with Community Tax Certificate No. _____
dated _____[;]

Witness, MRS. MARY B. BALINTONA, with Community Tax Certificate No. 06030819
dated April 10, 2001[;]

Witness, DR. ELIEZER ASUNCION, with Community Tax Certificate No. 08214902
dated January 6, 2001;

Witness, MRS. ROSALINDA F. CU, with Community Tax Certificate No. 06022789
dated 03, 18, 2001 [;] (sic)
All known to me to be the same persons who signed the foregoing will, the first as
testator and the last four as instrumental witnesses, and they respectively
acknowledged to me that they signed the same as their own free act and deed.

This Will consists of three (3) pages, including this page of the acknowledgment, and
has been signed on the left hand margin of the first and third pages and above their
respective names on the second page, by the testator and his witnesses and sealed
with my notarial seal.

IN WITNESS HEREOF, I have hereunto set my hand the, [sic] month, year and place
above written.

[sgd]
  BERNARDO T. CONSTANTINO
Notary Public12

Fernando immediately spoke to Dr. Asuncion, who told him that Rene Ferrer, Jr.
(Ferrer), Saliganan's son-in-law, had gone to his clinic and asked him to sign the
document. Dr. Asuncion did as asked, having known Ferrer as a member of his
motorcycle club. He also told Fernando that only he, Ferrer, and some patients were
present when he signed the document. 13

In his defense, Atty. Constantino alleged that Severino had been of sound mind and
could walk with a cane when he started visiting Atty. Constantino to prepare his Last
Will and Testament. Atty. Constantino had advised him to bring a listing of his assets
and properties, with which Severino complied.14

Atty. Constantino further alleged that when he asked Severino why he was executing a
will, Severino told him that he wanted his only child, Saliganan, to have his properties
since Fernando was going around claiming to be his son. Atty. Constantino claimed that
Severino had also admitted promising to bequeath Fernando all his properties in
Solsona, Ilocos Norte, provided that Saliganan approve of it. 15

Atty. Constantino further narrated that in the morning of September 9, 2001, he brought
three (3) typed copies of the Last Will and Testament to Severino's house for signing.
Together in the room were Severino, Atty. Constantino, his wife Editha and son Bernard
Christian, the Balintona Spouses, Cu, Saliganan, and one (1) other person. 16

Atty. Constantino stated that Severino's hands were trembling as he attempted to sign
the first page of the document, so he asked Saliganan to hold his wrist to sign all three
(3) copies. The three (3) instrumental witnesses present—the Balintona Spouses and
Cu—then signed the document, after which Atty. Constantino affixed his signature.
Upon seeing a stamp pad nearby, Atty. Constantino asked Severino if he would like to
place his thumbmark on the documents. Severino agreed and again asked Saliganan to
assist him.17
Addressing the absence of Dr. Asuncion, whose name was indicated as an instrumental
witness, Atty. Constantino assured Severino that only three (3) witnesses were needed
for the document. He then allegedly instructed Severino to leave the document as it was
and "not make any erasures or crossing-out on it [in] order not to make it dirty." 18 Atty.
Constantino took a copy of the document and gave the other two (2) to Severino. 19

On his way out, Atty. Constantino alleged that Saliganan took his copy of the document,
telling him that Dr. Asuncion had already arrived. Sometime later, Saliganan returned
the copy, but Atty. Constantino stated that he did not check if Dr. Asuncion had signed
it.20

In its November 28, 2013 Judgment,21 the Regional Trial Court found Atty. Constantino
guilty beyond reasonable doubt of falsification of a public document under Article 171(2)
of the Revised Penal Code. It pointed out that while only a photocopy of the allegedly
falsified document was presented, the parties nonetheless did not dispute its
execution.22 The trial court, however, found that the prosecution failed to establish that
Severino had not been of sound mind when the Last Will and Testament was
executed.23

Nonetheless, the trial court found Atty. Constantino liable for making it appear that Dr.
Asuncion appeared before him and witnessed the execution of the Last Will and
Testament. It ruled that Atty. Constantino should have been aware of the legal
consequences to leaving Dr. Asuncion's name on the document despite his absence. 24

Likewise, the trial court cited the 2004 Rules on Notarial Practice, which prohibited
notaries public from notarizing incomplete documents or false information. It pointed out
that removing Dr. Asuncion's name from the document was easy and could have been
accomplished within minutes. Thus, it did not give credence to Atty. Constantino's
defense that he instructed Severino not to make any markings on the document. 25

Moreover, the trial court considered Atty. Constantino's failure to immediately surrender
to authorities as indicative of his guilt, as he only posted bail two (2) years after warrants
of arrest had been issued.26

The dispositive portion of the Regional Trial Court Judgment read:

WHEREFORE, the accused Atty. Bernardo Constantino is found GUILTY beyond

reasonable doubt of Falsification of Public Document under Article 171 (2) of the
Revised Penal Code and is sentenced to an indeterminate penalty ranging from two
years of prision correccional as minimum to eight years and one day of prision
mayor as maximum. He is also ordered to pay a fine of three thousand pesos
(P3,000.00). Costs against the said accused.

SO ORDERED.27

Atty. Constantino appealed before the Court of Appeals. 28

In its January 19, 2016 Decision,29 the Court of Appeals affirmed the Decision of the
Regional Trial Court.

Agreeing with the trial court, the Court of Appeals found that Atty. Constantino could
have easily removed Dr. Asuncion's name if he believed in good faith that only three (3)
witnesses were needed. Instead, the Court of Appeals pointed out that Atty.
Constantino made it appear as if Dr. Asuncion were present before him as a witness. It
also noted his testimony that he knew Dr. Asuncion would still want to sign the
document, which was why he gave his copy to Saliganan. It held that Atty. Constantino
should have checked the copy when it was returned to him. 30

The Court of Appeals, likewise, affirmed the trial court's finding that Atty. Constantino's
failure to immediately surrender was a manifestation of his guilt, as he had no
persuasive reason to do so.31

Atty. Constantino moved for reconsideration, but his Motion was denied in the Court of
Appeals June 9, 2016 Resolution.32 Hence, he filed this Petition.33

Petitioner claims that it would have been difficult for him to remove Dr. Asuncion's name
at the time of signing. Due to his muscular dystrophy, he had to be accompanied by his
wife and two (2) sons to climb to the second floor of the house. Additionally, there was
no typewriter, clerk, or typist in Severino's house for the corrections to be done.
Petitioner also alleges that he wanted the notarization to be made in Severino's
residence to honor the testator's wish. Then and there, he asserts, he notarized the
document to avoid going up the steep stairway again. 34

Petitioner argues that precisely due to his physical condition, he has relied on his
secretary to file the office documents. As such, he was not able to check the Last Will
and Testament when Saliganan returned it to his secretary. While he admits that he had
been negligent for failing to cross out Dr. Asuncion's name in the document, he asserts
that it should not be taken against him, but on Dr. Asuncion, who admitted to signing the
document without reading it.35

Petitioner, likewise, explains that his failure to immediately surrender was due to his
failing health and his wife being abroad to take care of their two (2) daughters. He
alleges that as litigation had started in 2008, Saliganan assured him on the phone not to
worry as she was trying to settle the case as a family misunderstanding, which was why
he did not pay attention to the case. 36

The Office of the Solicitor General, on the other hand, claims that petitioner raises
questions of fact improper in a Rule 45 petition. 37 Maintaining that there was no error in
the finding of guilt, it asserts that all the elements of the crime of falsification of a public
document under Article 171 (2) of the Revised Penal Code were duly proven by the
evidence on record.38 However, it requests that this Court impose with leniency any
penalty it will have ruled due to petitioner's advanced age and physical condition. 39
In rebuttal, petitioner contends that there are recognized exceptions to Rule 45 that
apply to this case, considering that his conviction was "overtly based on conjectures,
presumptions[,] and speculations, not proof beyond reasonable doubt[.]" 40

The issue for this Court's resolution is whether or not the prosecution has proven
beyond reasonable doubt that petitioner Atty. Bernardo T. Constantino was guilty of
falsifying a public document under Article 171(2) of the Revised Penal Code.

Before this issue can be passed upon, however, this Court must first address the
procedural question of whether the Petition presents questions of fact not cognizable in
a petition for review on certiorari under Rule 45 of the Rules of Court.

The Constitution guarantees that an accused is presumed innocent until the contrary is
proven.41 Thus, every conviction requires no less than proof beyond reasonable doubt.
Rule 133, Section 2 of the Rules of Court provides:

SECTION 2. Proof beyond reasonable doubt. — In a criminal case, the accused is

entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof
beyond reasonable doubt does not mean such a degree of proof as, excluding
possibility of error, produces absolute certainty. Moral certainty only is required, or that
degree of proof which produces conviction in an unprejudiced mind.

The burden of proof rests with the prosecution. Guilt must be founded on the strength of
the prosecution's evidence, not on the weakness of the defense. 42 Reasonable doubt on
the evidence presented will result in an acquittal. In People v. Capili:43

Proof beyond reasonable doubt is needed to overcome the presumption of innocence.

Accused-appellant's guilt must be proved beyond reasonable doubt[;] otherwise, the
Court would be left without any other recourse but to rule for acquittal. Courts should be
guided by the principle that it would be better to set free ten men who might be probably
guilty of the crime charged than to convict one innocent man for a crime he did not
commit.44

In criminal cases, courts must evaluate the evidence in relation to the elements of the
crime charged. Thus, the finding of guilt is always a question of fact. 45

The Petition before this Court, however, is one filed under Rule 45 of the Rules of Court.
Rule 45 mandates that only questions of law may be raised in a petition for review on
certiorari.46 Thus, this Court generally gives great respect to the factual findings of the
trial court, which had the opportunity to observe the witnesses' demeanor during trial
and assess their testimonies.47

Considering that criminal cases involve the constitutional right to liberty and the
constitutional guarantee of the presumption of innocence, appeals of criminal cases
before this Court are not necessarily treated in the same manner as appeals in civil
cases. In Ferrer v. People:48

It is a well-settled rule that an appeal in a criminal case throws the whole case wide
open for review and that it becomes the duty of the Court to correct such errors as may
be found in the judgment appealed from, whether they are assigned as errors or not. 49

Appeals of criminal cases confer upon the reviewing court full jurisdiction and render it
competent to examine the records, revise the judgment from which an appeal arose,
increase the penalty, and cite the appropriate penal law provision. 50

Thus, this Court may still review the factual findings of the trial court "if it is not
convinced that [such findings] are conformable to the evidence of record and to its own
impressions of the credibility of the witnesses." 51 Significant facts and circumstances
may have been overlooked, which, if properly considered, could affect the result of the
case.52

Here, however, the factual findings are not disputed. Severino executed a Last
Will and Testament on September 9, 2001, which was notarized by petitioner. The
Joint Acknowledgment indicated that the Balintona Spouses, Cu, and Dr.
Asuncion were all present as witnesses and personally appeared before
petitioner. This makes it appear that Dr. Asuncion signed the document in the
presence of petitioner when, in reality, he did not. It was later discovered that Dr.
Asuncion signed it after it had been notarized. Neither party disputes this
sequence of events.

The prosecution's theory, however, is that a falsity in a public document occurred

because petitioner failed to delete Dr. Asuncion's name in the Joint
Acknowledgment. Petitioner's main defense, on the other hand, is that he ordered
the testator, Severino, not to delete Dr. Asuncion's name. This Court is, thus,
confronted with the legal question of whether petitioner, as a notary public,
falsified a public document, punishable under Article 171(2) of the Revised Penal
Code, when he failed to delete Dr. Asuncion's name in the Joint Acknowledgment
upon notarization.

II

Before one can be held criminally liable for falsification of public documents, it is
essential that the document allegedly falsified is a public document.

Public documents are defined in Cacnio v. Baens53 as "those instruments authorized by

a notary public or by a competent public official with all the solemnities required by
law[.]"54 By this definition, any notarized document is considered a public document.

Rule 132, Section 19 of the Rules of Court, however, provides:

SECTION 19. Classes of documents. — For the purpose of their presentation in
evidence, documents are either public or private.

Public documents are:

(a) The written official acts, or records of the official acts of the sovereign authority,
official bodies and tribunals, and public officers, whether of the Philippines, or of
a foreign country;
   
(b) Documents acknowledged before a notary public except last wills and
testaments; and
   
(c) Public records, kept in the Philippines, of private documents required by law to be
entered therein.

All other writings are private. (Emphasis supplied)

Notarization confers a public character upon private documents so that, for the
purposes of admissibility in court, no further evidence is required to prove the
document's authenticity.55 The notary public swears to the truth of the document's
contents and its due execution. In Antillon v. Barcelon:56

The principal function of a notary public is to authenticate documents. When a notary

public certifies the due execution and delivery of a document under his hand and seal
he thereby gives such a document the force of evidence.

....

Indeed, one of the very purposes of requiring documents to be acknowledged before a

notary public, in addition to the solemnity which should surround the execution and
delivery of documents, is to authorize such documents to be given in evidence without
further proof of their execution and delivery.57

Thus, notaries public are cautioned to take due care in notarizing documents to ensure
the public's confidence in notarized documents. In Ramirez v. Ner:58

A notarial document is by law entitled to full faith and credit upon its face, and for this
reason notaries public must observe the utmost care to comply with the elementary
formalities in the performance of their duties. Otherwise the confidence of the public in
the integrity of this form of conveyancing would be undermined. 59

Under the Rules on Evidence, notarized documents are clothed with the presumption of
regularity; that is, that the notary public had the authority to certify the documents as
duly executed. A last will and testament, however, is specifically excluded from the
application of Rule 132, Section 19 of the Rules of Court. This implies that when the
document being presented as evidence is a last will and testament, further evidence is
necessary to prove its due execution, whether notarized or not.

A last will and testament is a "species of conveyance whereby a person is permitted,

with the formalities prescribed by law, to control to a certain degree the disposition of his
estate after his death."60 A notarial will is one that is "acknowledged before a notary
public by a testator and the attesting witnesses[.]" 61 Moreover, Article 806 of the Civil
Code provides:

ARTICLE 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the will, or
file another with the office of the Clerk of Court.

This acknowledgment is embodied in an attestation clause at the end of the instrument.

An attestation clause, in Caneda v. Court of Appeals,62 is:

. . . that part of an ordinary will whereby the attesting witnesses certify that the
instrument has been executed before them and to the manner of the execution of the
same. It is a separate memorandum or record of the facts surrounding the conduct of
execution and once signed by the witnesses, it gives affirmation to the fact that
compliance with the essential formalities required by law has been observed. It is made
for the purpose of preserving in a permanent form a record of the facts that attended the
execution of a particular will, so that in case of failure of the memory of the attesting
witnesses, or other casualty, such facts may still be proved. 63

By this definition, the formalities required by law to prove a notarial will's authenticity do
not pertain to the notarization, but to the attestation and subscription of the testator and
the attesting witnesses. In Caneda, this Court further explained:

[T]he subscription of the signatures of the testator and the attesting witnesses is made
for the purpose of authentication and identification, and thus indicates that the will is the
very same instrument executed by the testator and attested to by the witnesses.

Further, by attesting and subscribing to the will, the witnesses thereby declare the due
execution of the will as embodied in the attestation clause. The attestation clause,
therefore, provides strong legal guaranties for the due execution of a will and to insure
the authenticity thereof. As it appertains only to the witnesses and not to the testator, it
need be signed only by them. Where it is left unsigned, it would result in the invalidation
of the will as it would be possible and easy to add the clause on a subsequent occasion
in the absence of the testator and the witnesses. 64

Hence, an authentic attestation clause must not only contain the names of the
instrumental witnesses. Mere mention of their names in the attestation clause will not
accurately represent the fact of their attestation and subscription. Instead, the
instrumental witnesses must also sign the instrument before it is notarized by the notary
public.

Here, petitioner was found guilty beyond reasonable doubt of violating Article 171(2) of
the Revised Penal Code. The provision reads:

ARTICLE 171. Falsification by Public Officer, Employee or Notary or Ecclesiastic

Minister. — The penalty of prisión mayor and a fine not to exceed 5,000 pesos shall be
imposed upon any public officer, employee, or notary who, taking advantage of his
official position, shall falsify a document by committing any of the following acts:

....

2. Causing it to appear that persons have participated in any act or proceeding when
they did not in fact so participate [.]

There is falsification of a public document when the public document is simulated "in a
manner so as to give it the appearance of a true and genuine instrument, thus, leading
others to errors as to its authenticity[.]" 65 Moreover, "[w]hat is punished in falsification of
public document is principally the undermining of the public faith and the destruction of
truth as solemnly proclaimed therein."66

When a notary public falsifies a public document, his or her act effectively undermines
the public's trust and reliance on notarized documents as evidence. Thus, he or she is
held criminally liable for the offense when the falsity committed leads others to believe
the document was authentic when it is not.

In falsification of public documents under Article 171(2) of the Revised Penal Code, the
prosecution must prove that these elements exist:

1. That the offender is a public officer, employee, or notary public.

2. That he takes advantage of his official position.

3. That he falsifies a document by causing it to appear that persons have participated in

any act or proceeding.

4. That such person or persons did not in fact so participate in the proceeding. 67

Here, the first element has already been proven since both the prosecution and the
defense stipulate that petitioner is a notary public. The second element is presumed
when the alleged falsity committed by the notary public pertains to the notarization,
since only notaries public have the duty and authority to notarize documents.

Thus, the elements that remain to be proven by the prosecution are: (1) that petitioner
falsified a document "by causing it to appear that persons have participated in any act or
proceeding"; and (2) that "such person or persons did not in fact so participate in the
proceeding."68

The due execution of a notarized will is proven through the validity of its attestation
clause. The prosecution must prove that either the testator could not have authored the
instrument, or the instrumental witnesses had no capacity to attest to the due execution
of the will. This requires that the notary public must have falsified or simulated the
signatures appearing on the attestation clause.

Here, petitioner was found to have falsely certified in the Joint Acknowledgment that Dr.
Asuncion was an instrumental witness to the execution of Severino's Last Will and
Testament since he did not sign it in petitioner's presence.

The trial court and the Court of Appeals, however, disregarded one crucial detail from its
finding of facts: Dr. Asuncion signed the Joint Acknowledgment after it was notarized by
petitioner.

Based on the findings of the trial court, at the time petitioner notarized the Last Will and
Testament, only three (3) witnesses had signed it. The trial court, however, did not
make any finding that petitioner had falsified the participation of the three (3) witnesses
who attested and subscribed to its due execution. It likewise found that Dr. Asuncion
signed the document at the urging of Saliganan's son-in-law, Ferrer, and that petitioner
seemed unaware that Dr. Asuncion later signed the document. Dr. Asuncion also
admitted that his signature was genuine and that he was aware of what he was signing.

Since Dr. Asuncion did not sign the Joint Acknowledgment before it was notarized, he
cannot be considered as having attested and subscribed to its due execution at the time
of its notarization. Thus, when petitioner certified that the persons who attested and
subscribed to the document were present before him, there could have been no falsity.
It was not petitioner who made it appear that Dr. Asuncion participated in the execution
of the Joint Acknowledgment, but Ferrer and Dr. Asuncion himself. Petitioner, therefore,
must be acquitted.

Nonetheless, while petitioner's acts may be inadequate to find him criminally liable, he
may still be liable for administrative sanctions.

Petitioner's failure to cross out Dr. Asuncion's name when he notarized the Joint
Acknowledgment has allowed Dr. Asuncion to still sign the document despite not having
participated in its due execution. This is the mischief being guarded against in
disallowing notaries public to notarize incomplete documents. Rule XI, Section l(b)(9), in
relation to Rule IV, Section 569 of the 2004 Rules on Notarial Practice, states:

RULE XI
Revocation of Commission and Disciplinary Sanctions

SECTION 1. Revocation and Administrative Sanctions. — . . .

(b) In addition, the Executive Judge may revoke the commission of, or impose
appropriate administrative sanctions upon, any notary public who:

...

(9) executes a false or incomplete certificate under Section 5, Rule IV[.]

To be sure, the incidents here occurred in 2001, or before the 2004 Rules on Notarial
Practice was promulgated. While the previous Notarial Law 70 did not contain a provision
on false and incomplete certificates, this Court has already cautioned notaries public
from notarizing incomplete documents even before the applicability of the 2004 Rules
on Notarial Practice. In Bote v. Eduardo:71

Respondent [notary public] was . . . negligent when he notarized the deed with unfilled
spaces and incomplete entries, making uncertified and fraudulent insertions easy to
accomplish. Notarization is not an empty, meaningless, routinary act. It is invested with
such substantial public interest that only those who are qualified or authorized may act
as notaries public. Notarization converts a private document into a public document,
making that document admissible in evidence without further proof of its authenticity.
For this reason, notaries must observe with utmost care the basic requirements in the
performance of their duties. Otherwise, the confidence of the public in the integrity of
this form of conveyance would be undermined.72

WHEREFORE, the Petition is GRANTED. The January 19, 2016 Decision and June 9,
2016 Resolution of the Court of Appeals in CA-G.R. CR No. 36327
are REVERSED and SET ASIDE. Petitioner Atty. Bernardo T. Constantino
is ACQUITTED of the crime of falsification of a public document, and the bail bond
posted for his provisional liberty is ordered canceled.

Let a copy of this Decision be furnished to the Office of the Bar Confidant for the filing of
the appropriate administrative action.

SO ORDERED.

Peralta (Chairperson), A. Reyes, Jr., Hernando, and Carandang,*JJ., concur

G.R. No. 225696, April 08, 2019

ATTY. BERNARDO T. CONSTANTINO, PETITIONER, v. PEOPLE OF THE

PHILIPPINES, RESPONDENT.

DECISION

LEONEN, J.:
For a notary public to be found guilty of falsifying a notarial will, the prosecution must
prove that he or she has falsified or simulated the signatures of the testator or the
instrumental witnesses to make it appear that they participated in the execution of the
document when they did not.

This resolves a Petition for Review on Certiorari 1 assailing the January 19, 2016
Decision2 and June 9, 2016 Resolution3 of the Court of Appeals in CA-G.R. CR No.
36327. The Court of Appeals affirmed the Regional Trial Court November 28, 2013
Judgment4 finding Atty. Bernardo T. Constantino (Atty. Constantino) guilty of falsification
of a public document under Article 171(2) of the Revised Penal Code.

On May 27, 2008, an Information was filed against Atty. Constantino and Teresita C.
Saliganan (Saliganan), charging them with falsification of a public document. 5 The
Information read:

That on or about September 9, 2001 in the City of Laoag, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, ATTY. BERNARDO
CONSTANTINO taking advantage of his being a notary public for Laoag City and Ilocos
Norte, together with TERESITA C. SALIGANAN, conspiring, confederating and mutually
helping each other, did then and there willfully, unlawfully and feloniously cause to
appear in the LAST WILL AND TESTAMENT executed by Severino C. Cabrales in favor
of the accused TERESITA C. SALIGANAN, known as Doc. No. 15909, Page No. 71,
Book No. XXXI, Series of 2001 of the Notarial Register of Atty. BERNARDO
CONSTANTINO, a notary public for Laoag City and Province of Ilocos Norte, that
SEVERINO C. CABRALES participated in the execution of the LAST WILL AND
TESTAMENT, when in fact he did not so participate, and making it appear that the
testator Severino Cabrales and the attesting witnesses, Dr. Eliezer Asuncion, Mary
Balintona and Dr. Justino Balintona acknowledge the Last Will and Testament before
Atty. Bernardo Constantino while in truth they never appeared to acknowledge the
same.6

On June 13, 2008, warrants of arrest were issued against Atty. Constantino and
Saliganan. On September 24, 2008, Atty. Constantino filed a Motion for Recognizance
in Lieu of Bail as he was unable to post the required bond of P24,000.00. 7

In its October 28, 2008 Order, the Regional Trial Court denied the Motion. Atty.
Constantino, through his wife Editha, was able to post bail on August 23, 2010.
Saliganan, however, remained at large. 8

On arraignment, Atty. Constantino pleaded not guilty to the crime charged. Thus, trial on
the merits ensued.9

According to the prosecution, sometime in June 1998, Severino Cabrales (Severino),

the father of Saliganan, suffered a stroke and was rushed to the hospital, where he was
confined for two (2) weeks. When he was discharged, he returned to the family home in
Laoag City. There, Saliganan stayed and took care of Severino until his death on
December 6, 2003.10

On February 8, 2005, a Petition for Probate of Severino's alleged Last Will and
Testament was filed before the Regional Trial Court of Laoag City.

Upon learning of the probate proceedings, Fernando Cabrales (Fernando), a son of

Severino, secured a copy of the purported Last Will and Testament. He claimed that the
signature in the document was not Severino's. The document was notarized by Atty.
Constantino and registered in Book No. 31, Page No. 71 of Atty. Constantino's Notarial
Register, series of 2001. The witnesses who signed it were Rosalinda Cu (Cu), Dr.
Justino Balintona and his wife Mary Balintona (the Balintona Spouses), and Dr. Eliezer
John Asuncion (Dr. Asuncion).11

The Joint Acknowledgment in the Last Will and Testament read:

JOINT ACKNOWLEDGMENT

BEFORE ME, a notary public for and in the City of Laoag, Philippines, this 9 th day of
September, 2001, personally appeared:

The testator, SEVERINO CABRALES, with Community Tax Certificate No. 06002287
dated January 2, 2001, issued in Laoag City;

Witness, DR. JUSTINO G. BALINTONA, with Community Tax Certificate No. _____
dated _____[;]

Witness, MRS. MARY B. BALINTONA, with Community Tax Certificate No. 06030819
dated April 10, 2001[;]

Witness, DR. ELIEZER ASUNCION, with Community Tax Certificate No. 08214902
dated January 6, 2001;

Witness, MRS. ROSALINDA F. CU, with Community Tax Certificate No. 06022789
dated 03, 18, 2001 [;] (sic)

All known to me to be the same persons who signed the foregoing will, the first as
testator and the last four as instrumental witnesses, and they respectively
acknowledged to me that they signed the same as their own free act and deed.

This Will consists of three (3) pages, including this page of the acknowledgment, and
has been signed on the left hand margin of the first and third pages and above their
respective names on the second page, by the testator and his witnesses and sealed
with my notarial seal.
IN WITNESS HEREOF, I have hereunto set my hand the, [sic] month, year and place
above written.

[sgd]
  BERNARDO T. CONSTANTINO
Notary Public12

Fernando immediately spoke to Dr. Asuncion, who told him that Rene Ferrer, Jr.
(Ferrer), Saliganan's son-in-law, had gone to his clinic and asked him to sign the
document. Dr. Asuncion did as asked, having known Ferrer as a member of his
motorcycle club. He also told Fernando that only he, Ferrer, and some patients were
present when he signed the document. 13

In his defense, Atty. Constantino alleged that Severino had been of sound mind and
could walk with a cane when he started visiting Atty. Constantino to prepare his Last
Will and Testament. Atty. Constantino had advised him to bring a listing of his assets
and properties, with which Severino complied.14

Atty. Constantino further alleged that when he asked Severino why he was executing a
will, Severino told him that he wanted his only child, Saliganan, to have his properties
since Fernando was going around claiming to be his son. Atty. Constantino claimed that
Severino had also admitted promising to bequeath Fernando all his properties in
Solsona, Ilocos Norte, provided that Saliganan approve of it. 15

Atty. Constantino further narrated that in the morning of September 9, 2001, he brought
three (3) typed copies of the Last Will and Testament to Severino's house for signing.
Together in the room were Severino, Atty. Constantino, his wife Editha and son Bernard
Christian, the Balintona Spouses, Cu, Saliganan, and one (1) other person. 16

Atty. Constantino stated that Severino's hands were trembling as he attempted to sign
the first page of the document, so he asked Saliganan to hold his wrist to sign all three
(3) copies. The three (3) instrumental witnesses present—the Balintona Spouses and
Cu—then signed the document, after which Atty. Constantino affixed his signature.
Upon seeing a stamp pad nearby, Atty. Constantino asked Severino if he would like to
place his thumbmark on the documents. Severino agreed and again asked Saliganan to
assist him.17

Addressing the absence of Dr. Asuncion, whose name was indicated as an instrumental
witness, Atty. Constantino assured Severino that only three (3) witnesses were needed
for the document. He then allegedly instructed Severino to leave the document as it was
and "not make any erasures or crossing-out on it [in] order not to make it dirty." 18 Atty.
Constantino took a copy of the document and gave the other two (2) to Severino. 19

On his way out, Atty. Constantino alleged that Saliganan took his copy of the document,
telling him that Dr. Asuncion had already arrived. Sometime later, Saliganan returned
the copy, but Atty. Constantino stated that he did not check if Dr. Asuncion had signed
it.20

In its November 28, 2013 Judgment,21 the Regional Trial Court found Atty. Constantino
guilty beyond reasonable doubt of falsification of a public document under Article 171(2)
of the Revised Penal Code. It pointed out that while only a photocopy of the allegedly
falsified document was presented, the parties nonetheless did not dispute its
execution.22 The trial court, however, found that the prosecution failed to establish that
Severino had not been of sound mind when the Last Will and Testament was
executed.23

Nonetheless, the trial court found Atty. Constantino liable for making it appear that Dr.
Asuncion appeared before him and witnessed the execution of the Last Will and
Testament. It ruled that Atty. Constantino should have been aware of the legal
consequences to leaving Dr. Asuncion's name on the document despite his absence. 24

Likewise, the trial court cited the 2004 Rules on Notarial Practice, which prohibited
notaries public from notarizing incomplete documents or false information. It pointed out
that removing Dr. Asuncion's name from the document was easy and could have been
accomplished within minutes. Thus, it did not give credence to Atty. Constantino's
defense that he instructed Severino not to make any markings on the document. 25

Moreover, the trial court considered Atty. Constantino's failure to immediately surrender
to authorities as indicative of his guilt, as he only posted bail two (2) years after warrants
of arrest had been issued.26

The dispositive portion of the Regional Trial Court Judgment read:

WHEREFORE, the accused Atty. Bernardo Constantino is found GUILTY beyond

reasonable doubt of Falsification of Public Document under Article 171 (2) of the
Revised Penal Code and is sentenced to an indeterminate penalty ranging from two
years of prision correccional as minimum to eight years and one day of prision
mayor as maximum. He is also ordered to pay a fine of three thousand pesos
(P3,000.00). Costs against the said accused.

SO ORDERED.27

Atty. Constantino appealed before the Court of Appeals. 28

In its January 19, 2016 Decision,29 the Court of Appeals affirmed the Decision of the
Regional Trial Court.

Agreeing with the trial court, the Court of Appeals found that Atty. Constantino could
have easily removed Dr. Asuncion's name if he believed in good faith that only three (3)
witnesses were needed. Instead, the Court of Appeals pointed out that Atty.
Constantino made it appear as if Dr. Asuncion were present before him as a witness. It
also noted his testimony that he knew Dr. Asuncion would still want to sign the
document, which was why he gave his copy to Saliganan. It held that Atty. Constantino
should have checked the copy when it was returned to him. 30

The Court of Appeals, likewise, affirmed the trial court's finding that Atty. Constantino's
failure to immediately surrender was a manifestation of his guilt, as he had no
persuasive reason to do so.31

Atty. Constantino moved for reconsideration, but his Motion was denied in the Court of
Appeals June 9, 2016 Resolution.32 Hence, he filed this Petition.33

Petitioner claims that it would have been difficult for him to remove Dr. Asuncion's name
at the time of signing. Due to his muscular dystrophy, he had to be accompanied by his
wife and two (2) sons to climb to the second floor of the house. Additionally, there was
no typewriter, clerk, or typist in Severino's house for the corrections to be done.
Petitioner also alleges that he wanted the notarization to be made in Severino's
residence to honor the testator's wish. Then and there, he asserts, he notarized the
document to avoid going up the steep stairway again. 34

Petitioner argues that precisely due to his physical condition, he has relied on his
secretary to file the office documents. As such, he was not able to check the Last Will
and Testament when Saliganan returned it to his secretary. While he admits that he had
been negligent for failing to cross out Dr. Asuncion's name in the document, he asserts
that it should not be taken against him, but on Dr. Asuncion, who admitted to signing the
document without reading it.35

Petitioner, likewise, explains that his failure to immediately surrender was due to his
failing health and his wife being abroad to take care of their two (2) daughters. He
alleges that as litigation had started in 2008, Saliganan assured him on the phone not to
worry as she was trying to settle the case as a family misunderstanding, which was why
he did not pay attention to the case. 36

The Office of the Solicitor General, on the other hand, claims that petitioner raises
questions of fact improper in a Rule 45 petition. 37 Maintaining that there was no error in
the finding of guilt, it asserts that all the elements of the crime of falsification of a public
document under Article 171 (2) of the Revised Penal Code were duly proven by the
evidence on record.38 However, it requests that this Court impose with leniency any
penalty it will have ruled due to petitioner's advanced age and physical condition. 39

In rebuttal, petitioner contends that there are recognized exceptions to Rule 45 that
apply to this case, considering that his conviction was "overtly based on conjectures,
presumptions[,] and speculations, not proof beyond reasonable doubt[.]" 40

The issue for this Court's resolution is whether or not the prosecution has proven
beyond reasonable doubt that petitioner Atty. Bernardo T. Constantino was guilty of
falsifying a public document under Article 171(2) of the Revised Penal Code.
Before this issue can be passed upon, however, this Court must first address the
procedural question of whether the Petition presents questions of fact not cognizable in
a petition for review on certiorari under Rule 45 of the Rules of Court.

The Constitution guarantees that an accused is presumed innocent until the contrary is
proven.41 Thus, every conviction requires no less than proof beyond reasonable doubt.
Rule 133, Section 2 of the Rules of Court provides:

SECTION 2. Proof beyond reasonable doubt. — In a criminal case, the accused is

entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof
beyond reasonable doubt does not mean such a degree of proof as, excluding
possibility of error, produces absolute certainty. Moral certainty only is required, or that
degree of proof which produces conviction in an unprejudiced mind.

The burden of proof rests with the prosecution. Guilt must be founded on the strength of
the prosecution's evidence, not on the weakness of the defense. 42 Reasonable doubt on
the evidence presented will result in an acquittal. In People v. Capili:43

Proof beyond reasonable doubt is needed to overcome the presumption of innocence.

Accused-appellant's guilt must be proved beyond reasonable doubt[;] otherwise, the
Court would be left without any other recourse but to rule for acquittal. Courts should be
guided by the principle that it would be better to set free ten men who might be probably
guilty of the crime charged than to convict one innocent man for a crime he did not
commit.44

In criminal cases, courts must evaluate the evidence in relation to the elements of the
crime charged. Thus, the finding of guilt is always a question of fact. 45

The Petition before this Court, however, is one filed under Rule 45 of the Rules of Court.
Rule 45 mandates that only questions of law may be raised in a petition for review on
certiorari.46 Thus, this Court generally gives great respect to the factual findings of the
trial court, which had the opportunity to observe the witnesses' demeanor during trial
and assess their testimonies.47

Considering that criminal cases involve the constitutional right to liberty and the
constitutional guarantee of the presumption of innocence, appeals of criminal cases
before this Court are not necessarily treated in the same manner as appeals in civil
cases. In Ferrer v. People:48

It is a well-settled rule that an appeal in a criminal case throws the whole case wide
open for review and that it becomes the duty of the Court to correct such errors as may
be found in the judgment appealed from, whether they are assigned as errors or not. 49
Appeals of criminal cases confer upon the reviewing court full jurisdiction and render it
competent to examine the records, revise the judgment from which an appeal arose,
increase the penalty, and cite the appropriate penal law provision. 50

Thus, this Court may still review the factual findings of the trial court "if it is not
convinced that [such findings] are conformable to the evidence of record and to its own
impressions of the credibility of the witnesses." 51 Significant facts and circumstances
may have been overlooked, which, if properly considered, could affect the result of the
case.52

Here, however, the factual findings are not disputed. Severino executed a Last Will and
Testament on September 9, 2001, which was notarized by petitioner. The Joint
Acknowledgment indicated that the Balintona Spouses, Cu, and Dr. Asuncion were all
present as witnesses and personally appeared before petitioner. This makes it appear
that Dr. Asuncion signed the document in the presence of petitioner when, in reality, he
did not. It was later discovered that Dr. Asuncion signed it after it had been notarized.
Neither party disputes this sequence of events.

The prosecution's theory, however, is that a falsity in a public document occurred

because petitioner failed to delete Dr. Asuncion's name in the Joint Acknowledgment.
Petitioner's main defense, on the other hand, is that he ordered the testator, Severino,
not to delete Dr. Asuncion's name. This Court is, thus, confronted with the legal
question of whether petitioner, as a notary public, falsified a public document,
punishable under Article 171(2) of the Revised Penal Code, when he failed to delete Dr.
Asuncion's name in the Joint Acknowledgment upon notarization.

II

Before one can be held criminally liable for falsification of public documents, it is
essential that the document allegedly falsified is a public document.

Public documents are defined in Cacnio v. Baens53 as "those instruments authorized by

a notary public or by a competent public official with all the solemnities required by
law[.]"54 By this definition, any notarized document is considered a public document.

Rule 132, Section 19 of the Rules of Court, however, provides:

SECTION 19. Classes of documents. — For the purpose of their presentation in

evidence, documents are either public or private.

Public documents are:

(a) The written official acts, or records of the official acts of the sovereign authority,
official bodies and tribunals, and public officers, whether of the Philippines, or of
a foreign country;
   
(b) Documents acknowledged before a notary public except last wills and
testaments; and
   
(c) Public records, kept in the Philippines, of private documents required by law to be
entered therein.

All other writings are private. (Emphasis supplied)

Notarization confers a public character upon private documents so that, for the
purposes of admissibility in court, no further evidence is required to prove the
document's authenticity.55 The notary public swears to the truth of the document's
contents and its due execution. In Antillon v. Barcelon:56

The principal function of a notary public is to authenticate documents. When a notary

public certifies the due execution and delivery of a document under his hand and seal
he thereby gives such a document the force of evidence.

....

Indeed, one of the very purposes of requiring documents to be acknowledged before a

notary public, in addition to the solemnity which should surround the execution and
delivery of documents, is to authorize such documents to be given in evidence without
further proof of their execution and delivery.57

Thus, notaries public are cautioned to take due care in notarizing documents to ensure
the public's confidence in notarized documents. In Ramirez v. Ner:58

A notarial document is by law entitled to full faith and credit upon its face, and for this
reason notaries public must observe the utmost care to comply with the elementary
formalities in the performance of their duties. Otherwise the confidence of the public in
the integrity of this form of conveyancing would be undermined. 59

Under the Rules on Evidence, notarized documents are clothed with the presumption of
regularity; that is, that the notary public had the authority to certify the documents as
duly executed. A last will and testament, however, is specifically excluded from the
application of Rule 132, Section 19 of the Rules of Court. This implies that when the
document being presented as evidence is a last will and testament, further evidence is
necessary to prove its due execution, whether notarized or not.

A last will and testament is a "species of conveyance whereby a person is permitted,

with the formalities prescribed by law, to control to a certain degree the disposition of his
estate after his death."60 A notarial will is one that is "acknowledged before a notary
public by a testator and the attesting witnesses[.]" 61 Moreover, Article 806 of the Civil
Code provides:

ARTICLE 806. Every will must be acknowledged before a notary public by the testator
and the witnesses. The notary public shall not be required to retain a copy of the will, or
file another with the office of the Clerk of Court.

This acknowledgment is embodied in an attestation clause at the end of the instrument.

An attestation clause, in Caneda v. Court of Appeals,62 is:

. . . that part of an ordinary will whereby the attesting witnesses certify that the
instrument has been executed before them and to the manner of the execution of the
same. It is a separate memorandum or record of the facts surrounding the conduct of
execution and once signed by the witnesses, it gives affirmation to the fact that
compliance with the essential formalities required by law has been observed. It is made
for the purpose of preserving in a permanent form a record of the facts that attended the
execution of a particular will, so that in case of failure of the memory of the attesting
witnesses, or other casualty, such facts may still be proved. 63

By this definition, the formalities required by law to prove a notarial will's authenticity do
not pertain to the notarization, but to the attestation and subscription of the testator and
the attesting witnesses. In Caneda, this Court further explained:

[T]he subscription of the signatures of the testator and the attesting witnesses is made
for the purpose of authentication and identification, and thus indicates that the will is the
very same instrument executed by the testator and attested to by the witnesses.

Further, by attesting and subscribing to the will, the witnesses thereby declare the due
execution of the will as embodied in the attestation clause. The attestation clause,
therefore, provides strong legal guaranties for the due execution of a will and to insure
the authenticity thereof. As it appertains only to the witnesses and not to the testator, it
need be signed only by them. Where it is left unsigned, it would result in the invalidation
of the will as it would be possible and easy to add the clause on a subsequent occasion
in the absence of the testator and the witnesses. 64

Hence, an authentic attestation clause must not only contain the names of the
instrumental witnesses. Mere mention of their names in the attestation clause will not
accurately represent the fact of their attestation and subscription. Instead, the
instrumental witnesses must also sign the instrument before it is notarized by the notary
public.

Here, petitioner was found guilty beyond reasonable doubt of violating Article 171(2) of
the Revised Penal Code. The provision reads:

ARTICLE 171. Falsification by Public Officer, Employee or Notary or Ecclesiastic

Minister. — The penalty of prisión mayor and a fine not to exceed 5,000 pesos shall be
imposed upon any public officer, employee, or notary who, taking advantage of his
official position, shall falsify a document by committing any of the following acts:

....

2. Causing it to appear that persons have participated in any act or proceeding when
they did not in fact so participate [.]

There is falsification of a public document when the public document is simulated "in a
manner so as to give it the appearance of a true and genuine instrument, thus, leading
others to errors as to its authenticity[.]" 65 Moreover, "[w]hat is punished in falsification of
public document is principally the undermining of the public faith and the destruction of
truth as solemnly proclaimed therein."66

When a notary public falsifies a public document, his or her act effectively undermines
the public's trust and reliance on notarized documents as evidence. Thus, he or she is
held criminally liable for the offense when the falsity committed leads others to believe
the document was authentic when it is not.

In falsification of public documents under Article 171(2) of the Revised Penal Code, the
prosecution must prove that these elements exist:

1. That the offender is a public officer, employee, or notary public.

2. That he takes advantage of his official position.

3. That he falsifies a document by causing it to appear that persons have participated in

any act or proceeding.

4. That such person or persons did not in fact so participate in the proceeding. 67

Here, the first element has already been proven since both the prosecution and the
defense stipulate that petitioner is a notary public. The second element is presumed
when the alleged falsity committed by the notary public pertains to the notarization,
since only notaries public have the duty and authority to notarize documents.

Thus, the elements that remain to be proven by the prosecution are: (1) that petitioner
falsified a document "by causing it to appear that persons have participated in any act or
proceeding"; and (2) that "such person or persons did not in fact so participate in the
proceeding."68

The due execution of a notarized will is proven through the validity of its attestation
clause. The prosecution must prove that either the testator could not have authored the
instrument, or the instrumental witnesses had no capacity to attest to the due execution
of the will. This requires that the notary public must have falsified or simulated the
signatures appearing on the attestation clause.
Here, petitioner was found to have falsely certified in the Joint Acknowledgment that Dr.
Asuncion was an instrumental witness to the execution of Severino's Last Will and
Testament since he did not sign it in petitioner's presence.

The trial court and the Court of Appeals, however, disregarded one crucial detail from its
finding of facts: Dr. Asuncion signed the Joint Acknowledgment after it was notarized by
petitioner.

Based on the findings of the trial court, at the time petitioner notarized the Last Will and
Testament, only three (3) witnesses had signed it. The trial court, however, did not
make any finding that petitioner had falsified the participation of the three (3) witnesses
who attested and subscribed to its due execution. It likewise found that Dr. Asuncion
signed the document at the urging of Saliganan's son-in-law, Ferrer, and that petitioner
seemed unaware that Dr. Asuncion later signed the document. Dr. Asuncion also
admitted that his signature was genuine and that he was aware of what he was signing.

Since Dr. Asuncion did not sign the Joint Acknowledgment before it was notarized, he
cannot be considered as having attested and subscribed to its due execution at the time
of its notarization. Thus, when petitioner certified that the persons who attested and
subscribed to the document were present before him, there could have been no falsity.
It was not petitioner who made it appear that Dr. Asuncion participated in the execution
of the Joint Acknowledgment, but Ferrer and Dr. Asuncion himself. Petitioner, therefore,
must be acquitted.

Nonetheless, while petitioner's acts may be inadequate to find him criminally liable, he
may still be liable for administrative sanctions.

Petitioner's failure to cross out Dr. Asuncion's name when he notarized the Joint
Acknowledgment has allowed Dr. Asuncion to still sign the document despite not having
participated in its due execution. This is the mischief being guarded against in
disallowing notaries public to notarize incomplete documents. Rule XI, Section l(b)(9), in
relation to Rule IV, Section 569 of the 2004 Rules on Notarial Practice, states:

RULE XI
Revocation of Commission and Disciplinary Sanctions

SECTION 1. Revocation and Administrative Sanctions. — . . .

(b) In addition, the Executive Judge may revoke the commission of, or impose
appropriate administrative sanctions upon, any notary public who:

...

(9) executes a false or incomplete certificate under Section 5, Rule IV[.]

To be sure, the incidents here occurred in 2001, or before the 2004 Rules on Notarial
Practice was promulgated. While the previous Notarial Law 70 did not contain a provision
on false and incomplete certificates, this Court has already cautioned notaries public
from notarizing incomplete documents even before the applicability of the 2004 Rules
on Notarial Practice. In Bote v. Eduardo:71

Respondent [notary public] was . . . negligent when he notarized the deed with unfilled
spaces and incomplete entries, making uncertified and fraudulent insertions easy to
accomplish. Notarization is not an empty, meaningless, routinary act. It is invested with
such substantial public interest that only those who are qualified or authorized may act
as notaries public. Notarization converts a private document into a public document,
making that document admissible in evidence without further proof of its authenticity.
For this reason, notaries must observe with utmost care the basic requirements in the
performance of their duties. Otherwise, the confidence of the public in the integrity of
this form of conveyance would be undermined.72

WHEREFORE, the Petition is GRANTED. The January 19, 2016 Decision and June 9,
2016 Resolution of the Court of Appeals in CA-G.R. CR No. 36327
are REVERSED and SET ASIDE. Petitioner Atty. Bernardo T. Constantino
is ACQUITTED of the crime of falsification of a public document, and the bail bond
posted for his provisional liberty is ordered canceled.

Let a copy of this Decision be furnished to the Office of the Bar Confidant for the filing of
the appropriate administrative action.

SO ORDERED.

Peralta (Chairperson), A. Reyes, Jr., Hernando, and Carandang,*JJ., concur

G.R. No. 182291               September 22, 2010

PHILIP S. YU, Petitioner,
vs.
HERNAN G. LIM, Respondent.

DECISION

PEREZ, J.:

The Case

In this Petition for Review1 on Certiorari, petitioner Philip S. Yu seeks to set aside the
Decision2 dated 20 December 2007 and the Resolution 3 dated 18 March 2008 of the Court of
Appeals in CA-G.R. SP No. 99893. The challenged Decision and Resolution granted respondent’s
petition for certiorari which sought the nullification of. the Resolution 4 dated 4 September 2006 of the
Secretary of Justice which, in turn, ordered the filing of an Information against respondent for the
crime of Perjury.

The Antecedents

On 5 February 2004, respondent, as representative of HGL Development Corporation (HGL), filed

before the Regional Trial Court (RTC) of Zamboanga City a "Petition to Declare New Owner’s
Duplicate of Transfer Certificate of Title Nos. T-107, 353, T-107,354, T-107,355, T-103,790 as Null
and Void and to Revive the Old Owner’s Duplicate." 5 This petition was docketed as Cadastral Case
No. 04-09 before Branch 14 of said court.

It appears that petitioner and his co-owners of the aforementioned parcels of land sold the same to
HGL by virtue of a Deed of Absolute Sale dated 19 August 2003. 6 HGL then sought the cancellation
of the Transfer Certificate of Titles (TCTs) in the names of the vendors, and the issuance of new
TCTs in its name, with the Register of Deeds of Zamboanga City. The latter, however, refused to do
so on the ground that new owner’s duplicate copies of the TCTs covering the subject parcels of land
had been issued to the vendors by virtue of an order of RTC, Branch 16, Zamboanga City dated 7
July 1995.7 Apparently, the vendors succeeded in having the TCTs in their possession cancelled,
and new owner’s duplicates thereof issued to them, by alleging the loss of their copies of the
TCTs.8 Hence, the refusal of the Register of Deeds of Zamboanga City to cancel the TCTs
presented by HGL, it appearing that the same had already been cancelled as far back as 1995.

Demands were then made by respondent upon the vendors to surrender the new owner’s duplicate
copies of the TCTs to enable HGL to secure their cancellation and the issuance of new TCTs in its
name, but the vendors unreasonably refused to comply with the demands. 9 Thus, the filing of
Cadastral Case No. 04-09, wherein HGL, through herein respondent, prayed for the declaration as
null and void of the new owner’s duplicate TCTs and the revival of the original owner’s duplicate
TCTs in the possession of HGL.10 The petition was dismissed by the trial court on 20 May 2004 for
lack of merit.11

On 2 June 2004, HGL filed a complaint12 before the Regional Trial Court of Caloocan City against
some of the vendors, namely: Sy Pek Ha, Ricafort S. Yu, and herein petitioner Philip S. Yu, for
"Specific Performance and Surrender of Owner’s Duplicate Titles, Declaratory Relief or Reformation
of Instrument, Cancellation and Issuance of New Titles, and Damages," praying, among others, that
defendants be ordered to surrender to plaintiff the new owner’s duplicate TCTs and that the Register
of Deeds of Zamboanga City be ordered to cancel all TCTs in the name of the vendors and new
ones be issued to HGL. The complaint was docketed as Civil Case No. C-20899(04).

On 18 August 2005, petitioner filed before the Office of the City Prosecutor of Caloocan City a
criminal complaint13 for Perjury against respondent, alleging that as the representative of HGL, the
latter made untruthful statements in the Verification and Certification Against Forum Shopping which
he signed and attached to the above-mentioned civil complaint for specific performance. Petitioner
claimed that respondent’s statement that HGL has not commenced any other action or filed any
claim involving the same issues in any other court, tribunal or quasi-judicial agency is absolutely
false since the corporation had earlier filed Cadastral Case No. 04-09 with the RTC of Zamboanga
City.14

The Ruling of the Office of the City Prosecutor of Caloocan City

In its Resolution15 dated 15 February 2006, the Office of the Assistant City Prosecutor of Caloocan
City dismissed, for lack of merit, petitioner’s complaint for perjury. It found that while the Zamboanga
case and the Caloocan case involve the same res, they do not involve the same parties and the
same rights or relief prayed for. The causes of action in the two cases are likewise not the same,
being founded on different acts. In other words, none of the requisites of forum shopping were
satisfied. Hence, it concluded, it follows that respondent did not commit perjury when he made his
representations in the Certificate of Non-Forum Shopping. 16

Petitioner filed an appeal from the Resolution of the city prosecutor dismissing his complaint. In his
Petition for Review17 before the Department of Justice, petitioner claimed that the city prosecutor of
Caloocan City committed manifest and reversible error in dismissing the criminal complaint against
respondent since all the elements of perjury are present in this case.18 He thus prayed for the
reversal and setting aside of the Resolution of the city prosecutor. 19

The Ruling of the Department of Justice

In its Resolution20 dated 4 September 2006, the Department of Justice granted the petition for review
and directed the filing of an Information for Perjury against respondent. It held that Cadastral Case
No. 04-09, filed in Zamboanga City, involved the same TCTs, the same relief for the declaration of
nullity of the TCTs in the possession of the vendors, the same parties and essentially the same facts
and issues as Civil Case No. 20899(04) pending in the RTC of Caloocan City. 21 Thus, it is clear that
respondent should have disclosed in his Verification and Certification Against Forum Shopping the
previous filing of Cadastral Case No. 04-09.22

Respondent filed a Motion for Reconsideration23 dated 8 September 2006 praying for the reversal of
the aforesaid Resolution but the same was denied in a Resolution dated 29 June 2007. 24

As a result, respondent filed a Petition for Certiorari with an Urgent Application for a Temporary
Restraining Order and Writ of Preliminary Injunction25 with the Court of Appeals praying that the
appellate court declare that no probable cause exists to indict him for perjury, that the criminal
complaint be dismissed, and that a writ of preliminary injunction be issued directing the Secretary of
Justice to cease and desist from implementing his assailed resolutions. 26 Respondent claimed that in
issuing the questioned resolutions, the Secretary of the Department of Justice committed grave
abuse of discretion amounting to lack or excess of jurisdiction. He maintained that there is absolutely
no probable cause to indict him for perjury as he has not made any willful and deliberate assertion of
a falsehood in his Verification and Certification Against Forum Shopping. 27

The Ruling of the Court of Appeals

In its Decision28 dated 20 December 2007, the Court of Appeals granted respondent’s petition,
nullified and set aside the assailed resolutions, and prohibited the Secretary of Justice and the Office
of the City Prosecutor of Caloocan and their agents from prosecuting respondent for perjury. The
Court of Appeals held that the lack of probable cause against respondent herein is glaringly evident
from the records; hence, the Secretary of Justice committed grave abuse of discretion amounting to
excess or lack of jurisdiction when he issued the challenged resolutions. 29

Petitioner filed a motion for reconsideration but the same was denied by the Court of Appeals in a
Resolution dated 18 March 2008. 30

Hence, this petition for review on certiorari.

The Issue
 The lone issue for consideration in the case at bar is whether or not the Court of Appeals erred in
modifying and setting aside the resolutions of the Department of Justice directing the filing of an
Information for Perjury against respondent herein.

Petitioner claims that all the elements of perjury –

(a) That the accused made a statement under oath or executed an affidavit upon a material
matter;

(b) That the statement or affidavit was made before a competent officer authorized to receive
and administer oaths;

(c) That in the statement or affidavit, the accused made a willful and deliberate assertion of a
falsehood; and

(d) That the sworn statement or affidavit containing the falsity is required by law or made for
a legal purpose

-- are present in this case. The Verification and Certification Against Forum Shopping is a statement
under oath, subscribed and sworn to before a duly commissioned notary public, in which respondent
made a willful and deliberate assertion of a falsehood. The falsehood consists in respondent’s
pronouncement that the corporation which he represents has not commenced any other action or
filed any claim, involving the same issues, in any other court, tribunal or quasi-judicial agency.
Petitioner maintains that this statement is absolutely false considering the earlier act of respondent
of filing a cadastral case in Zamboanga City involving substantially the same parties, facts, issues
and reliefs prayed for.31 According to petitioner, the two cases have one and the same legal
objective: the cancellation of the new owner’s duplicate copies of titles in the possession of the
defendants (the vendors) in the Caloocan City case and the upholding of the owner’s duplicate
copies of titles in the corporation’s possession. Thus, respondent had the legal obligation to disclose
the previous filing and dismissal of the cadastral case.32

Petitioner further contends that the matter of whether the act of making a "false certification" should
subject the offender to prosecution for perjury is to be tested not by the elements of forum shopping
but by the elements of perjury. Consequently, regardless of whether or not respondent is guilty of
forum shopping, what is at issue in the criminal complaint is whether respondent made a willful and
deliberate assertion in a public document of a falsehood upon a material matter regarding which he
had the legal obligation to state the truth. Petitioner submits that respondent had done so, making
the latter liable for prosecution for the crime of perjury under Article 183 of the Revised Penal Code. 33

Finally, petitioner asserts that concomitant with his authority and power to control the prosecution of
criminal offenses, it is the public prosecutor who is vested with the discretionary power to determine
whether a prima facie case exists or not. Given this latitude and authority granted by law to the
investigating prosecutor, the rule is that courts will not interfere with the conduct of preliminary
investigations or the determination of what constitutes sufficient probable cause for the filing of the
corresponding information against an offender. Courts are not empowered to substitute their own
judgment for that of the executive branch. As a matter of whether to prosecute or not is purely
discretionary on the part of the public prosecutor, his findings on the existence of probable cause are
not subject to review by the courts, unless these are patently shown to have been made with grave
abuse of discretion.34

The Ruling of the Court

At the outset, it must be stated that what the Court is essentially called upon to resolve in this case is
the existence of probable cause sufficient to indict respondent for perjury.

Petitioner correctly pointed out that this Court will not ordinarily interfere with the conduct of
preliminary investigation and leave to the investigating prosecutor adequate latitude of discretion in
the determination of what constitutes sufficient evidence as will establish probable cause for the
filing of an information against an offender.35 Nonetheless, as petitioner himself admitted, the rule
applies unless such determination is patently shown to have been made with grave abuse of
discretion. Thus, as an exception, this Court may inquire into the determination of probable cause
during preliminary investigation if, based on the records, the prosecutor committed grave abuse of
discretion.36

The exception to the rule finds application here. As properly found by the Court of Appeals, the
Secretary of Justice manifestly acted with or in excess of his authority when he ordered the filing of
an information for perjury against respondent despite the absence of probable cause against him. 37

Petitioner insists that the existence – or absence – of perjury should be defined by its own elements,
and not those of forum shopping. Hence, petitioner argued, even if the elements of forum shopping
may not all be present, such fact does not relieve the affiant from liability for perjury if all the
elements of this latter offense are otherwise present. 38

What this argument failed to consider, however, is that since perjury requires a willful and deliberate
assertion of a falsehood in a statement under oath or in an affidavit, and the statement or affidavit in
question here is respondent’s verification and certification against forum shopping, it then becomes
necessary to consider the elements of forum shopping to determine whether or not respondent has
committed perjury. In other words, since the act of respondent allegedly constituting perjury consists
in the statement under oath which he made in the certification of non-forum shopping, the existence
of perjury should be determined vis-à-vis the elements of forum shopping.

It is significant to note that, notwithstanding his protests and insistence against the application of the
elements of forum shopping in deciding whether or not perjury exists, petitioner himself, in his
petition, utilized the elements of forum shopping to support his argument that the statement of
respondent that "the corporation has not commenced any other action or filed any claim involving the
same issues in any other court" is "absolutely false". Thus, petitioner claimed that:

"(a) As to the principal party. HGL Development Corporation is the petitioner in both cases. x
x x. The fact that in the civil case, x x x the parties involved are HGL and private respondent,
among others, is of no moment. It is apparent that the parties are substantially identical, if
not the same. x x x.

"(b) As to the essential facts. In both cases HGL Development Corporation is asserting legal
ownership of five parcels of land located at Zamboanga City x x x.

"(c) As to the essential issues. The essential issues are identical in both cases. These issues
refer to (a) the legal ownership of the subject parcels of land; (b) who between the parties
are validly entitled to the owner’s duplicate copies of the titles; and (c) which of the titles –
the ones in the corporation’s possession or in the other parties’ possession – should be
declared valid. In both the cadastral case in Zamboanga City and the civil case in Caloocan
City, HGL Development Corporation prayed for the upholding of its right of ownership over
the properties and of the validity of the owner’s duplicate copies of titles in its possession
and, inevitably, the cancellation or declaration as null and void of contrary owner’s duplicate
copies of titles over the same properties.
 "(d) As to the relief prayed for. In both cases, the corporation prayed for the declaration as
null and void of the new owner’s duplicate copies and for the revival or restoration of the
original duplicate copies in its possession. x x x."39

The foregoing is explicit acknowledgement of the necessity of determining first whether or not the
elements of forum shopping are present in order to finally resolve the issue of perjury.

Forum shopping exists when the elements of litis pendentia are present or where a final judgment in
one case will amount to res judicata in another. Litis pendentia requires the concurrence of the
following requisites: (1) identity of parties, or at least such parties as those representing the same
interests in both actions; (2) identity of rights asserted and reliefs prayed for, the reliefs being
founded on the same facts; and (3) identity with respect to the two preceding particulars in the two
cases, such that any judgment that may be rendered in the pending case, regardless of which party
is successful, would amount to res judicata in the other case. 40

What is pivotal in determining whether forum shopping exists or not is the vexation caused the
courts and parties-litigants by a party who asks different courts and/or administrative agencies to
rule on the same or related cases and/or grant the same or substantially the same reliefs, in the
process creating the possibility of conflicting decisions being rendered by the different courts and/or
administrative agencies upon the same issues.41

Based on the foregoing considerations, respondent did not have the legal obligation to disclose the
previous filing and subsequent dismissal of the cadastral case in Zamboanga City.

As correctly put by the Assistant City Prosecutor of Caloocan City in his Resolution dismissing
petitioner’s complaint for perjury:

"A perusal of the two cases would show that while it involves the same res, it does not involve the
same parties or rights or relief prayed for. In sum, none of the requisites [of forum shopping were]
satisfied.

"The case in Caloocan was of course founded upon the complainants’ failure to comply with its
obligations as vendor, and therefore, it cannot be gainsaid that the rights asserted (by respondent as
buyer and relief sought therein i.e., specific performance contract of sale) were entirely different from
those asserted in Zamboanga (revival of the old owner’s duplicate that had been thought to be
lost).  The latter case stemmed from the finding of the old certificates, leading to respondent’s filing a
1avvphi1

petition to declare the new certificates null and void and to revive the old owner’s duplicate. The
former case arose from the deed of absolute sale and the failure of the complainant to fulfill its
obligation under the contract of sale between the parties herein.

"The causes of action in the two cases are not the same: they are founded on different acts; the
rights violated are different; and the relief sought is also different. The res judicata test when applied
to the two cases in question shows that regardless of whoever will ultimately prevail in the
Zamboanga case, the final judgment therein-whether granting or denying the petition-will not be
conclusive between the parties in the Caloocan case, and vice versa. x x x." 42

Moreover, in the Zamboanga case, what was invoked was the court’s cadastral or administrative
authority, the issue being administrative in nature, involving as it does the correction of a wrongful
issuance of duplicate titles. There were no judicial issues that required resolution.
In the Caloocan case, on the other hand, the issues are civil in nature, concerning the rights and
responsibilities of the parties under the Deed of Absolute Sale which they executed. Hence, in this
case, the Caloocan court is called upon to exercise its judicial powers.

Clearly, it cannot be said that respondent committed perjury when he failed to disclose in his
Certification Against Forum Shopping the previous filing of the cadastral case.

More importantly, it must be emphasized that perjury is the willful and corrupt assertion of a
falsehood under oath or affirmation administered by authority of law on a material matter. Thus, a
mere assertion of a false objective fact or a falsehood is not enough. The assertion must be
deliberate and willful.43

In the case at bar, even assuming that respondent was required to disclose the Zamboanga case,
petitioner failed to establish that respondent’s failure to do so was willful and deliberate. Thus, an
essential element of the crime of perjury is absent. As a result, there is no reason to disturb the
ruling of the Court of Appeals.

WHEREFORE, the instant petition is hereby DENIED. The Decision and Resolution of the Court of
Appeals in CA-G.R. SP No. 99893 dated 20 December 2007 and 18 March 2008, respectively, are
hereby AFFIRMED. Costs against petitioner.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:

G.R. No. 161693               June 28, 2005

MANOLO P. SAMSON, petitioner,
vs.
HON. VICTORIANO B. CABANOS, In his capacity as Acting Presiding Judge,
Regional Trial Court of Antipolo City, Branch 71,
PEOPLE OF THE PHILIPPINES and CATERPILLAR, INC., respondents.

DECISION

PUNO, J.:

Petitioner Manolo P. Samson seeks the reversal of the orders dated January 22, 2003
and November 17, 2003 issued by Presiding Judge Felix S. Caballes and Acting
Presiding Judge Victoriano B. Cabanos, respectively, of the Regional Trial Court (RTC)
of Antipolo City, Branch 71, in relation to Criminal Case No. 02-23183. The assailed
orders denied petitioner’s motion to quash the information for unfair competition filed
against him before said court.1 Petitioner also prayed that a temporary restraining order
and/or preliminary injunction be issued to enjoin respondent judge from further
proceeding with Criminal Case No. 02-23183 until the resolution of the instant petition.
The Court issued a temporary restraining order on February 18, 2004. 2

The background facts: Petitioner was charged with the crime of unfair competition
before the RTC of Antipolo City in an Information that states:

The undersigned Senior State Prosecutor of the Department of Justice hereby accuses
MANOLO P. SAMSON for violation of Sec. 168.3 (a) in relation to Secs. 123.1 (e),
131.3 and 170 of RA 8293 otherwise known as the Intellectual Property Code of the
Philippines, committed as follows:

That on or about the first week of November 1999 and sometime prior or subsequent
thereto, in Cainta, Rizal, Philippines, and within the jurisdiction of this Honorable Court,
above-named accused, owner/proprietor of ITTI Shoes Corporation located at F.P. Felix
Avenue, Cainta, Rizal, did then and there willfully, unlawfully and feloniously distribute,
sell and/or offer for sale CATERPILLAR products such as footwear, garments, clothing,
bags, accessories and paraphernalia which are closely identical to and/or colorable
imitations of the authentic Caterpillar products and likewise using trademarks, symbols
and/or designs as would cause confusion, mistake or deception on the part of the
buying public to the damage and prejudice of CATERPILLAR, INC., the prior adopter,
user and owner of the following internationally famous marks: "CATERPILLAR", "CAT",
"CATERPILLAR", "CAT", "CATERPILLAR & DESIGN", "CAT AND DESIGN",
"WALKING MACHINES" and "TRACK-TYPE TRACTOR & DESIGN".

CONTRARY TO LAW.3

Petitioner moved to quash the information on the ground that the court has no
jurisdiction over the offense charged in the Information. He argued that Section 170 of
Republic Act (R.A.) No. 82934 provides that the penalty for violation of Section 168
thereof is imprisonment from two (2) to five (5) years and a fine ranging from fifty
thousand pesos (₱50,000.00) to two hundred thousand pesos (₱200,000.00), and R.A.
No. 76915 amending Batas Pambansa (B.P.) Blg. 1296 vested the Metropolitan Trial
Courts (MTC) exclusive original jurisdiction over all offenses punishable with
imprisonment not exceeding six (6) years irrespective of the amount of the
fine.7 Presiding Judge Felix S. Caballes denied the motion for lack of merit in his order
dated January 22, 2003.8 Petitioner filed a motion for reconsideration which was
likewise denied by Acting Presiding Judge Victoriano B. Cabanos. 9

Petitioner filed the instant petition for certiorari before this Court on pure question of law:

Whether or not the respondent Regional Trial Court has jurisdiction over the offenses
charged in the subject information where the penalty therein range from two (2) years to
five (5) years, pursuant to Section 170 of R.A. 8293, in the light of the enactment of
Republic Act No. 7691, amending B.P. Blg. 129, which vests exclusive original
jurisdiction on the Metropolitan Trial Courts over all offenses punishable with
"imprisonment not exceeding six (6) years irrespective of the amount of fine", in relation
to Section 163 of R.A. No. 8293.10

Petitioner reiterates his argument before the trial court in support of his motion to quash.
He contends that Section 170 of R.A. No. 8293 provides that the penalty to be imposed
upon any person guilty of violation of Section 168 of the law is "imprisonment from two
(2) to five (5) years and a fine ranging from fifty thousand pesos (₱50,000.00) to two
hundred thousand pesos (₱200,000.00)." Under Section 2 of R.A. No. 7691, amending
Section 32 of B.P. 129, the MTC shall exercise exclusive original jurisdiction over all
offenses punishable with imprisonment not exceeding six (6) years irrespective of the
fine. As petitioner is charged with an offense penalized by imprisonment not exceeding
six (6) years, the jurisdiction to try the case lies with the MTC and not the RTC. In
addition, petitioner submits that the old Trademark Law, R.A. No. 166, conferring
jurisdiction on the Courts of First Instance (now RTC) over complaints for unfair
competition, has been repealed by Section 239 of R.A. No. 8293. He cites the Court’s
decision in Mirpuri vs. Court of Appeals.11

The petition must be dismissed.

It appears that petitioner had already raised the same issue and argument before this
Court in the case of Samson vs. Daway,12 decided on July 21, 2004. That case
involved exactly the same facts and issue as in this case, except that the information for
unfair competition against petitioner was filed before the RTC of Quezon City. We held
in that case:

The issues posed for resolution are - (1) Which court has jurisdiction over criminal and
civil cases for violation of intellectual property rights? xxx

Under Section 170 of R.A. No. 8293, which took effect on January 1, 1998, the criminal
penalty for infringement of registered marks, unfair competition, false designation of
origin and false description or representation, is imprisonment from 2 to 5 years and a
fine ranging from Fifty Thousand Pesos to Two Hundred Thousand Pesos, to wit:

SEC. 170. Penalties. - Independent of the civil and administrative sanctions imposed by

law, a criminal penalty of imprisonment from two (2) years to five (5) years and a fine
ranging from Fifty thousand pesos (₱50,000.00) to Two hundred thousand pesos
(₱200,000.00) shall be imposed on any person who is found guilty of committing any of
the acts mentioned in Section 155 [Infringement], Section 168 [Unfair Competition] and
Section 169.1 [False Designation of Origin and False Description or Representation].

Corollarily, Section 163 of the same Code states that actions (including criminal and
civil) under Sections 150, 155, 164, 166, 167, 168 and 169 shall be brought before the
proper courts with appropriate jurisdiction under existing laws, thus -
SEC. 163. Jurisdiction of Court. - All actions under Sections 150, 155, 164 and 166 to
169 shall be brought before the proper courts with appropriate jurisdiction under
existing laws. (Emphasis supplied)

The existing law referred to in the foregoing provision is Section 27 of R.A. No. 166 (The
Trademark Law) which provides that jurisdiction over cases for infringement of
registered marks, unfair competition, false designation of origin and false description or
representation, is lodged with the Court of First Instance (now Regional Trial Court) -

SEC. 27. Jurisdiction of Court of First Instance. - All actions under this Chapter [V -
Infringement] and Chapters VI [Unfair Competition] and VII [False Designatiion of Origin
and False Description or Representation], hereof shall be brought before the Court of
First Instance.1avvphi1.net

We find no merit in the claim of petitioner that R.A. No. 166 was expressly repealed by
R.A. No. 8293. The repealing clause of R.A. No. 8293, reads -

SEC. 239. Repeals. - 239.1. All Acts and parts of Acts inconsistent herewith, more
particularly Republic Act No. 165, as amended; Republic Act No. 166, as amended; and
Articles 188 and 189 of the Revised Penal Code; Presidential Decree No. 49, including
Presidential Decree No. 285, as amended, are hereby repealed. (Emphasis added)

Notably, the aforequoted clause did not expressly repeal R.A. No. 166 in its entirety,
otherwise, it would not have used the phrases "parts of Acts" and "inconsistent
herewith;" and it would have simply stated "Republic Act No. 165, as amended;
Republic Act No. 166, as amended; and Articles 188 and 189 of the Revised Penal
Code; Presidential Decree No. 49, including Presidential Decree No. 285, as amended
are hereby repealed." It would have removed all doubts that said specific laws had been
rendered without force and effect. The use of the phrases "parts of Acts" and
"inconsistent herewith" only means that the repeal pertains only to provisions which are
repugnant or not susceptible of harmonization with R.A. No. 8293. Section 27 of R.A.
No. 166, however, is consistent and in harmony with Section 163 of R.A. No. 8293. Had
R.A. No. 8293 intended to vest jurisdiction over violations of intellectual property rights
with the Metropolitan Trial Courts, it would have expressly stated so under Section 163
thereof.

Moreover, the settled rule in statutory construction is that in case of conflict between a
general law and a special law, the latter must prevail. Jurisdiction conferred by a special
law to Regional Trial Courts must prevail over that granted by a general law to Municipal
Trial Courts.

In the case at bar, R.A. No. 8293 and R.A. No. 166 are special laws conferring
jurisdiction over violations of intellectual property rights to the Regional Trial Court. They
should therefore prevail over R.A. No. 7691, which is a general law. Hence, jurisdiction
over the instant criminal case for unfair competition is properly lodged with the Regional
Trial Court even if the penalty therefor is imprisonment of less than 6 years, or from 2 to
5 years and a fine ranging from ₱50,000.00 to ₱200,000.00.

In fact, to implement and ensure the speedy disposition of cases involving violations of
intellectual property rights under R.A. No. 8293, the Court issued A.M. No. 02-1-11-SC
dated February 19, 2002 designating certain Regional Trial Courts as Intellectual
Property Courts. On June 17, 2003, the Court further issued a Resolution consolidating
jurisdiction to hear and decide Intellectual Property Code and Securities and Exchange
Commission cases in specific Regional Trial Courts designated as Special Commercial
Courts.

The case of Mirpuri v. Court of Appeals, invoked by petitioner finds no application in the
present case. Nowhere in Mirpuri did we state that Section 27 of R.A. No. 166 was
repealed by R.A. No. 8293. Neither did we make a categorical ruling therein that
jurisdiction over cases for violation of intellectual property rights is lodged with the
Municipal Trial Courts. The passing remark in Mirpuri on the repeal of R.A. No. 166 by
R.A. No. 8293 was merely a backgrounder to the enactment of the present Intellectual
Property Code and cannot thus be construed as a jurisdictional pronouncement in
cases for violation of intellectual property rights.

The foregoing ruling is the law of the case and thus lays to rest the issue posed by
petitioner. We see no reason in this case to deviate therefrom. It is a basic legal
principle that whatever is once irrevocably established as the controlling legal rule or
decision between the same parties in the case continues to be the law of the case,
whether correct on general principles or not, so long as the facts on which such decision
was predicated continue to be the facts of the case before the court. 13

IN VIEW WHEREOF, the petition is DISMISSED. The temporary restraining order

issued by this Court on February 18, 2004 is hereby LIFTED.

SO ORDERED.

Austria-Martinez, Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.

G.R. No. 200396

MARTIN VILLAMOR y TAYSON, and VICTOR BONAOBRA y GIANAN, Petitioners

vs
PEOPLE OF THE PIDLIPPINES, Respondents

DECISION

DEL CASTILLO, J.:

The Constitution guarantees the right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures of whatever
nature and for any purpose.1 A mere tip from an unnamed informant does not vest
police officers with the authority to barge into private homes without first securing a valid
warrant of arrest or search warrant. While there are instances where arrests and
searches may be made without a warrant, the Court finds that the constitutionally-
protected right against unreasonable searches and seizures was violated in the case at
bar.

This Petition for Review under Rule 45 of the Rules of Court seeks to set aside the June
13, 2011 Decision2 of the Court of Appeals (CA) in CA-G.R. CR No. 30457 which
affirmed the October 25, 2006 Judgment3 of the Regional Trial Court (RTC), Branch 43
of Virac, Catanduanes in Criminal Case Nos. 3463 and 3464) convicting both petitioners
for Violation of Presidential Decree (PD) No. 1602 as amended by Republic Act (RA)
No. 9287, otherwise known as "An Act Increasing the Penalties for Illegal Numbers
Games Amending Certain Provisions of PD 1602 and for Other Purposes." Petitioner
Martin T. Villamor (Villamor) was convicted as a collector of bets in the illegal numbers
game of "lotteng" under Section 3(c) of RA 9287, while petitioner Victor G. Bonaobra
(Bonaobra) was convicted as a coordinator, controller, or supervisor under Section 3(d)
of the said Jaw. The RTC sentenced Villamor to suffer the penalty of imprisonment from
eight (8) years and one (1) day as minimum to nine (9) years as maximum, while
Bonaobra was sentenced to suffor the penalty of imprisonment of ten (10) years and
one (1) day as minimum to eleven (11) years as maximum.

Factual Antecedents

Villamor was charged with violation of Section 3(c) of RA 9287 for collecting and
soliciting bets for an illegal numbers game locally known as "lotteng' and possessing a
list of various numbers, a calculator, a cellphone, and cash. The charge stemmed from
the following lnformation:4

That on or ahout the 17th day of June 2005 in the morning, in barangay Francia,

municipality of Virac, province of Catanduanes, Philippines, \vi thin the jurisdiction of
this Honorable Court the said accused with intent [to] gain thru illegal means did then
and there, [ willfully ], unlawfully and feloniously engage, collect [and] solicit x x x bets
for illegal numbers game locally known as "Lotteng" by having in his possession [a]
calculator, cellphone, [list] of various numbers and money and lotteng paraphernalias.

CONTRARY TO LAW.

Another Information5 was filed in the same court charging Bonaobra with violation of the
same law, committed as follows:

That on or about the 17th day of June 2005 in the morning, in barangay Francia,
municipality of Virac, province of Catanduanes, Philippines, within the jurisdiction of this
Honorable Court the said accused with intent [to] gain thru illegal means did then and
there, [willfully], unlawfully and feloniously maintain and operate illegal numbers game
locally known as "lotteng" while in possession of gambling paraphernalias, such as [a]
calculator, cellphone, list of various numbers and cash in the amount of ₱1,500.00
representing collection of bets.

CONTRARY TO LAW.

Petitioners filed t1eir respective Motions for Reinvestigation, which were both granted
by the RTC. Subsequently, the Office of the Provincial Prosecutor issued separate
Resolutions both dated September 13, 2005 amending the Informations in both cases.

In the Amended Information, the phrase "acting as a collector" was included to charge
Villamor as a collector in an illegal numbers game. The Amended Information 6 provides:

That on or about the 17th day of June 2005 in the morning, in barangay Francia,
municipality of Virac, province of Catanduanes, Philippines, within the jurisdiction of this
Honorable Court the said accused acting as a collector with intent [to] gain thru illegal
means[,] did then and there, willfully, unlawfully and foloniously engage, collect and
solicit bets for illegal numbers game locally known as "Lotteng" by having in his
possession [a] calculator, cellphone, [list] of various numbers and money and lotteng
paraphernalias.

CONTRARY TO LAW.

On the other hand, Bonaobra was charged as a manager or operator in the Amended
Info1mation,7 the incriminatory paragraph of which states:

That on or about the 17th day of June 2005 in the morning, in barangay Francia,
municipality of Virac, province of Catanduanes, Philippines, within the jurisdiction of this
Honorable Court the said accused acting as manager and operator with intent [to] gain
thru illegal means did then and there, [willfully], unlawfully and feloniously maintain and
operate illegal numbers game locally known as "lotteng" while in possession of
gambling paraphernalia, such as [a] calculator, cellphone, lists of variott5 numbers and
cash in the amount of ₱l,500,00 representing colleciion of bets.
CONTRARY TO LAW.

When separately arraigned, Villamor, on October 4, 2005 and Bonaobra, on November

29, 2005, both pleaded not guilty to the respective charges filed against them. After the
pre-trial conference, a joint trial on the merits followed.

Version of the Prosecution

The prosecution presented four witnesses, namely: Domingo Tejerero (Tejerero),

Provincial Director, Police Superintendent Francisco Penaflor (PD Peñaflor), SP04
Severino Malasa, Jr., and POI David Adrian Saraspi (POI Saraspi). Culled from the
records were the following facts:

On June 17, 2005, at around 9:00 a.m., PD Peñaflor received a call from an infonnant
regarding an ongoing illegal numbers game at Barangay Francia, Virac, Catanduanes,
specifically at the residence of Bonaobra. A team composed of PD Peñaflor, Saraspi,
PO 1 Rolando Ami, a driver, and a civilian asset proceeded to Bonaobra's residence to
confirm the report.

Upon arrival at the target area, the team parked their service vehicle outside the
compound fenced by bamboo slats installed two inches apart which allowed them to
see the goings on inside. According to the police officers, they saw petitioners in the act
of counting bets, described by the Bicol term "revisar," which means collating and
examining numbers placed in "papelitos," which are slips of paper containing bet
numbers, and counting money bets.

When they entered the gate of the compound, they introduced themselves as police
officers and confiscated the items found on the table consisting of cash amounting to
₱l,500.00 in different denominations, the "papelitos," a calculator, a cellular phone, and
a pen. Petitioners were then brought to Camp Francisco Camacho where they were
investigated for illegal gambling. Subsequently, a case was filed against the petitioners
before the Office of the Provincial Prosecutor.

Version of the Defense

The defense presented six witnesses, namely Villamor, Bonaobra, Demetrio Bonaobra.
the brother of Bonaobra, Florencio Bonaobra (Florencio), the father of Bonaobra, Juan
Vargas, and Jonah Bonaobra (Jonah), the wife of Bonaobra. Their testimonies are
summarized below.

On June 17, 2005, at around 8:30 a.m., Villamor went to Bonaobra's house to pay a
debt he owed to the latter's wife, Jonah. At that time, Bonaobra was having coffee with
his father Florencio inside their house. Villamor gave Bonaobra ₱2,000.00 which the
latter placed on top of the table. Bonaobra then went outside the house to answer his
cellphone. When Bonaobra was at the door, a man later identified as PD Peñaflor
kicked the fence of Bonaobra's house, grabbed Bonaobra's right arm, and said, "Caught
in the act ka!" Florencio went outside and asked PD Peñaflor if he had a search
warrant. Two more men entered the house and took the money from the table.
Petitioners were then made to board the service vehicle and brought in for investigation
at the police headquarters.

Ruling of the Regional Trial Court

On October 25, 2006, the RTC of Virac, Catanduanes, Branch 43 rendered its
Judgment finding petitioners guilty beyond reasonable doubt of committing illegal
numbers game locally known as ''lotteng," a variant of the game Last Two,8 respectively
as a collector or agent under Section 3(c), and as a coordinator, controller, or supervisor
under Section 3(d), of RA 9287.

The RTC gave credence to the testimonies of the arresting officers and held that
petitioners were caught in flagrante delicto committing an illegal numbers game
locally known as "lotteng," a variant of Last Two. The RTC held that petitioners were
seen by the arresting officers in the act of counting bets before the arrest was made
inside Bonaobra' s compound. 1he petitioners were also caught
holding "'papelitos," which contained the three rows of two-number combinations. Since
the winning combination in "lotteng" is taken from the first two numbers of the winning
combinations in the daily draw of the lotto in the Philippine Charity Sweepstakes, the
RTC held that the number combinations shown in the ''papelitos" were meant to
correspond to the lotto results.

The RTC further held that Villamor's participation in the illegal numbers game was that
of a collector since he brought bet money to Bonaobra while the latter was that of a
coordinator, controller, or supervisor after it was shown that he received the money from
Villamor.

The dispositive part of the Judgment of the RTC reads:

WHEREFORE, applying the Indeterminate Sentence Law, this Court hereby

SENTENCES Martin Villamor to suffer a penalty of imprisonment from eight (8) years
and one (1) day as minimum to nine (9) years as maximum, and Victor Bonaobra to
suffer a penalty of ten (10) years and one (1) day as minimum to eleven (11) years as
maximum. Likewise, the money amounting to ₱l,500.00 and the other personal
properties used as gambling paraphernalia, like the calculator, ballpen and cellular
phone are confiscated in favor of the state.

SO ORDERED9

Ruling of the Court of Appeals

On June 13, 2011, the CA affirmed the RTC's Decision. The CA brushed aside
Bonaobra's argument that his right to due process was violated when he was convicted
of a crime different from that with which he was charged. The CA held that the
classification of a maintainer, manager, or operator includes a coordinator, controller, or
supervisor.10 The CA ratiocinated that to hold a maintainer guilty of the lesser offense of
acting as a coordinator will not be violative of his right to be informed of the nature and
cause of his accusation since the graver offense of acting as a maintainer necessarily
includes being a coordinator.

With respect to Villamor, the CA gave more weight and credence to the testimonies of
the arresting officer who were presumed to have acted regularly in the performance of
their official functions. The CA held that Villamor' s denials cannot prevail over the
positive assertions of the police officers who caught him in the act of revising and
counting bets.

The CA disposed the case as follows:

IN VIEW OF THE FOREGOING, the decision appealed from is affirmed.

SO ORDERED.11

Hence, this Petition.

Issue

The main issue in this case is whether the petitioners' conviction for violation of RA
9287 as collector or agent under Section 3(c) for Villamor, and as coordinator,
controller, or supervisor m1der Section 3(d) for Bonaobra, should be upheld.

Our Ruling

We find the Petition meritorious.

In criminal cases, an appeal throws the entire "case wide open for review and the
reviewing tribunal can correct errors, though unassigned in the appealed judgment, or
even reverse the trial court's decision [based on] x x x grounds other than those that the
parties raised as errors."12

The Court finds that the right of the petitioners against unreasonable searches and
seizures was violated by the arresting officers when they barged into Bonaobra's
compound without a valid warrant of arrest or a search warrant. While there are
exceptions to the rule requiring a warrant for a valid search and seizure, none applies in
the case at bar. Consequently, the evidence obtained by the police officers is
inadmissible against the petitioners, the same having been obtained in violation of the
said right.

Section 2, Article Ill of the 1987 Constitution requires a judicial warrant based on the
existence of probable cause before a search and an arrest may be effected by law
enforcement agents. Without the said warrant, a search or seizure becomes
unreasonable within the context of the Constitution and any evidence obtained on the
occasion of such unreasonable search and seizure shall be inadmissible in evidence for
any purpose in any proceeding.13 "Evidence obtained and confiscated on the occasion
of such an unreasonable search and seizure is tainted and should be excluded for being
the proverbial fruit of the poisonous tree." 14

In this case, the apprehending officers claim that petitioners were caught in flagrante
delicto, or caught in the act of committing an offense. PD Peñaflor and his team of
police officers claim that petitioners were committing the offense of illegal numbers
game when they were arrested without a warrant.

We are not persuaded.

Under Section 5 of Rule 113 of the Rules of Court, a lawful arrest may be effected even
without a warrant of arrest in the following instances:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may,
without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has probable cause
to believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail and shall be
proceeded against in accordance with Section 7 of Rule 112.

In warrantless arrests made pursuant to Section 5(a), Rule 113, two elements must
concur, namely "(a) the person to be arrested must execute an overt act indicating that
he has just committed, is actually committing, or is attempting to commit a crime; and
(b) such overt act is done in the presence or within the view of the arresting officer." 15

After a judicious review of the records of the case, the Court finds that there was no
valid warrantless arrest on petitioners.1âwphi1 It was not properly established that
petitioners had just committed, or were actually committing, or attempting to commit a
crime and that said act or acts were done in the presence of the arresting officers.
Based on the testimonies of PO1 Saraspi and PD Peñaflor, they were positioned some
15 to 20 meters away from petitioners. PO 1 Saraspi's testimony during cross
examination reveals the following:

ATTY. SAMONTE:

Q While you were outside the compound of Bonaobra, what was your distance to
accused Martin Villamor and Victor Bonaobra?

A More or less fifteen (15) to twenty (20) meters.

Q Is it not that the compound of Bonaobra is surrounded with fence?

A Yes, sir.

Q Bamboo fence, right?

A Yes, sir, without a gate.

Q Are you sure it's without a gate?

A Probably it was open.

Q Can you determine the height of the fence?

A Between 5'7" to 5'9".

Q More than your height?

A Yes, sir.

Q Can you tell us whether you can see what the person is doing inside the compound
while you are outside?

A The fence is made up [sic] of bamboo and there were gaps as far as the fence is
concerned that is why when we alighted from the Frontier we saw what was inside the
compound.

Q And the space of each bamboo, can you determine [sic]?

A One and half to two inches apart.

Q When you were already outside the compound what were the accused doing?

A They were sitting and they were revising.

Q Were they seated with [sic] a table?

A They were sitting and Victor Bonaobra was without a shirt.

Q What were they holding?

A 'Papelitos'.

Q What else?

A While they were holding 'papelitos' the monies were just on the table.

Q At the distance of 15 to 10 meters can you determine the contents of the
'papelitos'?

A No, sir.

Q So you are not sure whether those are gambling paraphernalia?

A No, sir.

Q Because you do not know the contents of that and you are not sure whether those
are gambling paraphernalia you went inside, is that right?

A After we introduced ourselves that we are [sic] police officers we entered the
compound.

Q Meaning to say you were outside the compound and saying you are policemen?

A We entered first and we introduced ourselves.

Q Which is first, going inside or introducing yourselves?

A While entering we were also introducing ourselves simultaneously.

Q When you reached inside, what did you determine?

A We determined that there were lotteng paraphernalia on the table.

Q That is the only time that you determined that those were gambling paraphernalia?

A No, even on the [sic] outside we identified it already.

Q A while ago you said at a distance of 15 to 10 meters you can determine whether
they were in possession of the illegal gambling paraphernalia?

A What I am trying to say is that I cannot identify those that are written on the 'papelitos'
at the distance and I saw the calculator, the money bets.
Q So what you saw within a distance of 15 to 10 meters are calculators, money and
cellphone?

A Yes, sir.

Q Do you consider money gambling paraphernalia?

A Yes, sir.

Q So every time you see money you will consider that a gambling paraphernalia?

A In other situations.

Q How about calculator, do you consider calculator gambling paraphernalia?

A Yes, sir.

Q When you go to a department store there are calculators, do you consider those
calculators gambling paraphernalia?

A If you are going to consolidate all these items in a table all of these are gambling
paraphernalia

Q So when you consolidate these items and papers and calculators, if you see those
items at Century Trading, will you consider those as gambling paraphernalia? 16

Considering that 15 to 20 meters is a significant distance between the police officers

and the petitioners, the Court finds it doubtful that the police officers were able to
determine that a c1iminal activity was ongoing to allow them to validly effect an in
flagrante delicto warrantless arrest and a search incidental to a warrantless arrest
thereafter. The police officers even admitted that the compound was surrounded by a
bamboo fence 5'7" to 5'9" in height, which made it harder to see what was happening
inside the compound. It appears that the police officers acted based solely on the
information received from PD Peñaflor's informant and not on personal knowledge that
a crime had just been c01m11itted, was actually being committed, or was about to be
committed in their presence. The Court finds it doubtful that the police officers
witnessed any overt act before entering the private home of Bonaobra immediately
preceding the arrest. PO1 Saraspi even admitted that from his position outside the
compound, he could not read the contents of the so-called "papelitos;" yet, upon seeing
the calculator, phone, papers and money on the table, he readily concluded the same to
be gambling paraphernalias.

On the part of PD Peñaflor, he likewise admitted that from his position outside the
compound, he could not determine the activities of the persons inside. It was only after
he had illegally entered the compound, since he was not armed with a warrant, that he
supposedly saw the gambling paraphernalia. PD Peñaflor's testimony in this regard is
as follows:

Q Can you tell the Honorable Court, Mr. Witness, the distance of the house of Victor
Bonaobra to that place where you parked your vehicle when you arrived in the vicinity?

A When I parked my vehicle in front of the compound because that is a street, the
distance from the street to that place where there is an on-going 'revisar' of 'lotteng',
more or less 15 to 20 meters, I believe, from the gate.

Q So, you did not immediately go inside the compound of Victor Bonaobra?

A Yes, sir. I verified first if there is really [sic] persons in the compound.

Q So, at that distance of 15 to 20 meters, you were able to verify what they were doing
on the particular 1ime, Mt. Witness?

A No, sir.17

During his direct examination, Bonaobra testified that he was only answering his
cellphone when PD Peñaflor barged into his compound and arrested him. The relevant
portions of his testimony reveals the following:

ATTY SAMONTE:

Q At around 9:00 a.m. of June 17, 2005, what were you doing if you still remember?

A I stood up and I went out and made [sic] three steps from the door to answer the
cellphone and later on I was surprised when the police whom I could not identify, kicked
the door.

Q Mr. Witness, which door [are you] referring to [that] was kicked by the police?

A The gate outside of our fence.

xxxx

Q You said a while ago that the policeman kicked the door of your fence x

xx who was that policeman, if you know him?

A: Provincial Director Peñaflor.

Q: Who was with PD Peñaflor on [sic] that particular time, if any, Mr. Witness?

A Two (2) persons in civilian clothes.

xx xx

Q After PD Peñaflor kicked the door of your fence, what happened next, Mr. Witness?

A He held my hand and he seized my cellphone.

xxxx

Q After PD Peñaflor seized your cellphone, what else did he do?

A He said, "caught in the act."

Q Which comes first, Mr. Witness, the utterance made by PD Peñaflor that you were
caught in the act or the utterance made by your father whether they had a warrant?

A When my father asked them whether they have a warrant.

Q And what was the answer of PD Peñaflor when your father asked that question?

A He said, "caught in the act."

Q And what was the reply of your father?

A My father said that what you am doing is wrong, that is prohibited.

Q And what did PD Peñaflor answered [sic] to your father?

A He shouted at my father, "Di na kailangan yan" (That is not needed). 18

From the circumstances above, it is highly suspect that PD Peñaflor had witnessed any
overt act indicating that the petitioners were actually committing a crime. While PD
Peñaflor claims that he caught the petitioners in the act of collecting bets and counting
bet money, this observation was highly improbable given the distance of the police from
the petitioners and the fact that the compound was surrounded by a bamboo fence.

For his part, Villamor claimed that he was at the Bonaobra compound to repay his loan
to Jonah. The prosecution, through Prosecutor Tañon, even admitted this fact during
Jonah's direct examination. The following exchange between the prosecution and the
defense was quite revealing:

ATTY. SAMONTE:

Your Honor, please, [may] I respectfully offer the testimony of Jona[h] Bonaobra to
show that she is the ·wife of Victor Bonaobra; that at around 8:30 a.m. of June 17, 2005
she was inside their residence at Bonaobra's compound, Francia, Virac, Catanduances
and on that particular time and date, Martin Villamor arrived to pay his debt and she
personally witnessed the unlawful act committed by the policemen who entered their
dwelling on that particular lime and date and such other matters relative thereto, Your
Honor.

COURT:

Any comment from the prosecution?

PROS. TAÑON:

We will admit that she is the wife of Victor Bonaobra; that on Jw1e 17, 2005 at 8:30 in
the morning she was inside the residence of Bonaobra's compound; that accused
Martin Villamor arrived to pay his debt. We are to contest on that she personally
witnessed the unlawful act.

A1TY. SAMONTE:

To clarify that, the prosecution is admitting the fact that Martin arrived to pay the loan on
that particular day?

PROS. TAÑON:

Yes, Your Honor.

COURT:

Okay, so that we can proceed to the other matters.19 (Emphasis supplied)

From the exchange above, it is clear that the prosecution admitted that Villamor went to
Bonaobra's house to pay his loan to Jonah. Thus, at the exact moment of the arrest,
neither Bonaobra, who was answering his cellphone, nor Villarr1or, who was paying his
loan. was performing any overt act constitutive of a crime.

Verily, the warrantless arrest conducted by PD Peñaflor and his team was unlawful as
the same does not satisfy the requirements of an in flagrante delicto arrest.
Consequently, the search and seizure of the effects found inside the house of Bonaobra
are likewise illegal since there could be no valid search incident to an illegal warrantless
arrest. Thus, evidence seized from Bonaobra's house is inadmissible for being a fruit of
the poisonous tree.

The Court is aware that any question regarding the legality of a warrantless arrest must
be raised before arraignment. Failure to do so constitutes a waiver of the right to
question the legality of the arrest especially when the accused actively participated
during trial as in this case. However, we have clarified that such waiver is only confined
to the defects of the arrest and not on the inadmissibility of the evidence seized during
an illegal arrest. In People v. Racho,20 the Court held that:
Obviously, this is an instance of seizure of the 'fruit of the poisonous tree', hence, the
confiscated item is inadmissible in evidence consonant with Article III, Section 3(2) of
the 1987 Constitution, 'any evidence obtained in violation of this or the preceding
section shall be inadmissible for any purpose in any proceeding'.

Without the confiscated shabu, appellant's conviction cannot be sustained based on the

remaining evidence. Thus, an acquittal is warranted, despite the waiver of appellant of
his right to question the illegality of his arrest by entering a plea and his active
participation in the trial of the case. As earlier mentioned, the legality of an arrest affects
only the jurisdiction of the court over the person of the accused. A waiver of an illegal,
warrantless arrest does not carry with it a waiver of the inadmissibility of evidence
seized during an illegal warrantless arrest. (Emphasis supplied)

In this case, the prosecution failed to clearly establish the acts that constitute the
offense of illegal gambling as a collector or an agent under Section 3(c), and as a
coordinator, controller, or supervisor under Section 3(d), of RA 9287. Under the said
law, a collector or agent is "any person who collects, solicits or produces bets in behalf
of his/her principal for any illegal numbers game who is usually in possession of
gambling paraphernalia."21 On the other hand, a coordinator, controller, or supervisor is
defined as, ''any person who exercises control and supervision over the collector or
agent."22 The prosecution merely relied on the alleged illegal gambling paraphernalia
found and confiscated inside the house of Bonaobra and not on the specific overt acts
that constitute the offense.

All told, the evidence purportedly seized from the Bonaobra compound is inadmissible
in evidence since it was obtained in violation of Section 3(2), Article III of the 1987
Constitution. Since the alleged illegal gambling paraphernalia is the very corpus
delicti of the crime charged, the Court acquits petitioners.

WHEREFORE, the June 13, 2011 Decision of the Court of Appeals in CA-G.R. CR No.
30457 which affirmed the Judgment of the Regional Trial Court of Virac, Catanduanes,
Branch 43 in Criminal Case Nos. 3463 and 3464 is hereby REVERSED and SET
ASIDE. Petitioners Martin Villamor y Tayson and Victor Bonaobra y Gianan are
ACQUITTED and are ordered to be immediately RELEASED from detention, unless
they are confined for any other lawful cause.

The Director of the Bureau of Corrections is DIRECTED to IMPLEMENT this Decision

and to report to this Court the action taken hereon within five days from receipt.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:
G.R. No. 238141

WILLIAM CRUZ y FERNANDEZ and VIRGILIO FERNANDEZ y TORRES, Petitioners

vs.
PEOPLE OF THE PHILIPPINES, Respondent

DECISION

PERLAS-BERNABE, J.:

Before this Court is a petition for review on certiorari1 seeking to annul and set aside the
Decision2 dated November 29, 2017 and the Resolution 3 dated March 14, 2018 of the
Court of Appeals (CA) in CA-G.R. CR. No. 38062, which affirmed the Joint
Decision4 dated September 29, 2015 of the Regional Trial Court of Lingayen,
Pangasinan, Branch 69 (RTC) in Criminal Case Nos. L-10557 and L-10558 finding
petitioners Virgilio Fernandez y Torres (Virgilio) and William Cruz y Fernandez (William;
collectively, petitioners) guilty beyond reasonable doubt of violating Section 3 (c) 5 of
Republic Act No. (RA) 9287,6 otherwise known as the "Illegal Gambling Law."

The Facts

This case stemmed from two (2) Informations7 filed before the RTC, charging petitioners
with violation of Section 3 (d)8 of RA 9287 for unlawfully engaging in an illegal gambling
bookies activity. The prosecution alleged that on July 10, 2015, the Chief of Police of
Binmaley, Pangasinan, instructed Police Officer 3 Ramon de Guzman (PO3 de
Guzman) and Police Officer 2 Joel Sabordo (PO2 Sabordo) to conduct a surveillance of
illegal gambling activities along Mabini Street in Barangay Poblacion, Binmaley,
Pangasinan. Upon arriving thereat, PO3 de Guzman and PO2 Sabordo saw petitioners
from a distance of around five (5) meters carrying ball pens, papelitos, and money and
allegedly collecting jueteng9 bets from some persons. They then approached petitioners
and asked them if they were employees of Meredien Vista Gaming Corporation
(MVGC). When petitioners failed to show any authority to conduct business, PO3 de
Guzman and PO2 Sabordo began arresting them, confiscated their ball pens, papelitos,
and money, and thereafter, brought them to the police station. 10

Both petitioners pleaded not guilty to the crime charged, 11 but only Virgilio testified
during trial. 12 He maintained that at the time of the incident, he went to see his wife in
Mabini Street and saw William along the way. Moments later, some policemen arrived
and invited them to the police station for questioning. At the police station, they
discovered that they were being charged with violation of RA 9287 for allegedly
participating in an illegal numbers game. Virgilio, however, denied the charges. 13

The RTC Ruling

In a Joint Decision14 dated September 29, 2015, the RTC found petitioners guilty
beyond reasonable doubt of violating Section 3 (c) of RA. 9287, and accordingly,
sentenced each of them to suffer the penalty of imprisonment for an indeterminate
period of eight (8) years and one (1) day, as maximum, to nine (9) years, as
maximum. 15 It upheld the validity of petitioners' warrantless arrest as it was shown that
they were caught in flagrante delicto collecting and soliciting bets for an illegal numbers
game called ''jueteng." It pointed out that their acts of receiving money and writing on
some pieces of paper engendered a well-founded belief on the part of the police officers
that they were actually committing an offense under RA 9287. 16 It likewise observed
that the seized papelitos contained number combinations and bet amounts that were
used in the game of jueteng, and that mere possession of such gambling paraphernalia
is deemed prima facie evidence of a violation of RA 9287. 17

Aggrieved, petitioners appealed18 to the CA.

The CA Ruling

In a Decision19 dated November 29, 2017, the CA affirmed in toto petitioners' conviction.

It held that petitioners' bare denials cannot be given credence in light of the arresting
officers' positive and categorical statement that they caught petitioners in the act of
soliciting bets for jueteng; and as such, they had conducted a valid in flagrante
delicto arrest on petitioners. 20

Undaunted, petitioners filed a motion for reconsideration, 21 which was likewise denied in
a Resolution22 dated March 14, 2018; hence, this petition.

The Issue Before the Court

The issue to be resolved by the Court is whether or not the CA erred in affirming the
conviction of petitioners for violation of Section 3 (c) of RA 9287.

The Court's Ruling

"At the outset, it must be stressed that in criminal cases, an appeal throws the entire
case wide open for review and the reviewing tribunal can correct errors, though
unassigned in the appealed judgment, or even reverse the trial court's decision based
on grounds other than those that the parties raised as errors. The appeal confers the
appellate court full jurisdiction over the case and renders such court competent to
examine records, revise the judgment appealed from, increase the penalty, and cite the
proper provision of the penal law."23

Guided by this consideration, and as will be explained hereunder, the Court believes
that petitioners' conviction must be set aside.

Section 2, Article III24 of the 1987 Constitution mandates that a search and seizure
must be carried out through or on the strength of a judicial warrant predicated
upon the existence of probable cause, absent which, such search and seizure
becomes 'unreasonable' within the meaning of said constitutional provision . To
protect the people from unreasonable searches and seizures, Section 3 (2), Article
III25 of the 1987 Constitution provides that evidence obtained from unreasonable
searches and seizures shall be inadmissible in evidence for any purpose in any
proceeding. In other words, evidence obtained and confiscated on the occasion of
such unreasonable searches and seizures are deemed tainted and should be excluded
for being the proverbial fruit of a poisonous tree. 26

One of the recognized exceptions to the need for a warrant before a search may be
affected is a search incidental to a lawful arrest. In this instance, the law requires that
there first be a lawful arrest before a search can be made - the process cannot be
reversed.27 Relatedly, a lawful arrest may be effected with or without a warrant. With
respect to the latter, a warrantless arrest may be done when, inter alia, the accused is
caught in flagrante delicto pursuant to Section 5 (a), Rule 113 of the Revised Rules on
Criminal Procedure, which states:

Section 5. Arrest without warrant; when lawful. - A peace officer or a private person
may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually

committing, or is attempting to commit an offense[.] (Emphasis and underscoring
supplied)

Case law requires two (2) requisites for a valid in flagrante delicto warrantless arrest,
namely, that: (a) the person to be arrested must execute an overt act indicating that
he has just committed, is actually committing, or is attempting to commit a crime; and
(b) such overt act is done in the presence or within the view of the arresting officer.
Essentially, the arresting officer must have personal knowledge of the fact of the
commission of an offense, i.e., he must have personally witnessed the same.28

In Villamar v. People,29 a case which also involved alleged illegal gambling activities, the
Court held that the conduct of an in flagrante delicto warrantless arrest therein is
unlawful because of the arresting officers' failure to reasonably ascertain that the
criminal activity was afoot before proceeding with the same. In that case, the Court
remarked that it was highly suspect for the apprehending officers to have witnessed an
overt act indicating that the accused therein had just committed, were actually
committing, or were attempting to commit a violation of RA 9287, considering, inter alia,
the distance of the police officers from the purported locus criminis, viz.:

[T]he Court finds it doubtful that the police officers were able to determine that a
criminal activity was ongoing to allow them to validly effect an in flagrante
delicto warrantless arrest and a search incidental to a warrantless arrest thereafter. x x
x It appears that the police officers acted based solely on the information
received from PD Peñaflor's informant and not on personal knowledge that a
crime had iust been committed, was actually being committed, or was about to be
committed in their presence. x x x PO1 Saraspi even admitted that from his position
outside the compound, he could not read the contents of the so-called
"papelitos"; yet, upon seeing the calculator, phone, papers and money on the
table, he readily concluded the same to be gambling [paraphernalia].

On the part of PD Peñaflor, he likewise admitted that from his position outside the
compound, he could not determine the activities of the persons inside. x x x.

xxxx

From the circumstances above, it is highly suspect that PD Peñaflor had witnessed any
overt act indicating that the petitioners were actuatly committing a crime. While PD
Peñaflor claims that he caught the petitioners in the act of collecting bets and counting
bet money, this observation was highly improbable given the distance of the
police from the petitioners and the fact that the compound was surrounded by a
bamboo fence.30 (Emphases and underscoring supplied)

In this case, the Court similarly finds that there could have been no lawful in flagrante
delicto warrantless arrest made on petitioners. Based on the records, PO3 de Guzman
himself admitted that he and PO2 Sabordo. were about five (5) meters away from
petitioners when they allegedly saw petitioners carrying papelitos, ball pens, and
money. Perceiving that the same constitute gambling paraphernalia, the arresting
officers immediately concluded that petitioners were engaged in illegal gam8ling
activities, i.e., collecting jueteng bets, prompting them to swoop in with the intention of
arresting petitioners. Pertinent portions of PO3 de Guzman's testimony reads:

[Prosecutor Jeffrey Catungal]: When conducting surveillance particular place [sic], did
you proceed to conduct surveillance?

[PO3 de Guzman]: We conduct surveillance at Brgy. Poblacion particularly Mabini

Street Binmaley, Pangasinan, sir.

Q: In going to the said place, what purposes of conducting surveillance [sic], was there
anything that called your attention?

A: Yes, there were two (2) male factors, sir.

Q: What were you able to see or observe from them, if any?

A: They were collecting bets, sir.

Q: How sure are you that they were collecting bets?

A: They have [paraphernalia), sir.

Q: When you said they have [paraphernalia], what [paraphernalia]?

A: In collecting jueteng bets, sir.
Q: How far were you from them?

A: Almost 5 meters away, sir.

COURT:

Q: What those [paraphernalia) you are referring to?

A: [Ball pen), papelitos and money, sir.31 (Emphases and underscoring supplied)

Considering that the arresting officers were at a considerable distance of about five (5)
meters away from the supposed criminal transaction, it would be highly implausible for
them - even assuming that they have perfect vision - to ascertain with reasonable
accuracy that the aforesaid items were being used as gambling paraphernalia. In an
effort to legitimize the warrantless arrest and the consequent search made incidental
thereto, the arresting officers insist that the arrest was made only after ascertaining that
petitioners were not MVGC employees. However, the fact that petitioners were: (a)
holding ball pens, papelitos, and money; and (b) not MVGC employees do not, by
themselves, constitute an illegal gambling activity punishable under RA 9287. Notably,
there was no other overt act that could be properly attributed to petitioners so as to
rouse suspicion in the minds of the arresting officers that the former had just committed,
were committing, or were about to commit a crime. Verily, these circumstances are not
enough to justify a valid in flagrante delicto warrantless arrest on petitioners.

As a consequence of petitioners' unlawful warrantless arrest, it necessarily follows that

there could have been no valid search incidental to a lawful arrest which had yielded the
alleged illegal gambling paraphernalia from petitioners. Notably, while petitioners are
deemed to have waived any objections as to the legality of their arrest due to their
failure to question the same before arraignment and their active participation in trial, it
must be clarified that the foregoing constitutes a waiver only as to any question
concerning any defects in their arrest, and not with regard to the inadmissibility of the
evidence seized during an illegal warrantless arrest. 32 In Sindac v. People,33 the Court
held:

We agree with the respondent that the petitioner did not timely object to the irregularity
of his arrest before his arraignment as required by the Rules. In addition, he actively
participated in the trial of the case. As a result, the petitioner is deemed to have
submitted to the jurisdiction of the trial court, thereby curing any defect in his arrest.

However, this waiver to question an illegal arrest only affects the jurisdiction of
the court over his person.1âшphi1 It is well-settled that a waiver of an illegal,
warrantless arrest does not carry with it a waiver of the inadmissibility of
evidence seized during an illegal warrantless arrest.
Since the shabu was seized during an illegal arrest, its inadmissibility as evidence
precludes conviction and justifies the acquittal of the petitioner. 34 (Emphasis and
underscoring supplied)

In fine, since the items seized by the police officers are inadmissible against petitioners
- as they were obtained in violation of petitioners' right against unreasonable searches
and seizures - and given that the alleged illegal gambling paraphernalia is the
very corpus delicti of the crime charged,35 the Court is hereby constrained to acquit
petitioners.

WHEREFORE, the petition is GRANTED. The Decision dated November 29, 2017 and
the Resolution dated March 14, 2018 of the Court of Appeals in CA-G.R. CR. No. 38062
are hereby REVERSED and SET ASIDE. Accordingly, petitioners William
Cruz y Fernandez and Virgilio Fernandez y Torres are ACQUITTED of the crime
charged.

SO ORDERED.

Carpio (Senior Associate Justice, Chairperson), Caguioa, J. Reyes, Jr. and Lazaro-

Javier, JJ., concur.

G.R. No. L-7295             June 28, 1957

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARINA PADAN Y ALOVA, COSME ESPINOSA, ERNESTO REYES and JOSE
FAJARDO, defendants.
MARINA PADAN Y ALOVA and JOSE FAJARDO, defendants-appellants.

Augusto Revilla for appellant Jose Fajardo.

W. M. Bayhon for appellant Marina Padan y Alova.
Office of the Solicitor General Ambrosio Padilla and Solicitor Jose P. Alejandro for
appellee.

MONTEMAYOR, J.:

In the Court of First Instance of Manila, Marina Padan, Jose Fajardo y Garcia, Cosme
Espinosa, and Ernesto Reyes were charged with a violation of Article 201 of the
Revised Penal Code, said to have been committed as follows:

That on or about the 13th day of September, 1953, in the city of Manila,
Philippines, the said accused conspiring and confederating together and mutually
helping one another, did then and there willfully, unlawfully and feloniously exhibit
or cause to be exhibited inside a building at the corner of Camba Ext. and Morga
Ext., Tondo, this City, immoral scenes and acts, to wit: the said accused Jose
Fajador y Garcia, being then the manager and Ernesto Reyes y Yabut, as ticket
 collector and or exhibitor, willfully ,unlawfully and feloniously hired their co-
accused Marina Palan y Alova and Cosme Espinosa y Abordo to act as
performers or exhibitionists to perform and in fact performed sexual intercourse
in the presence of many spectators, thereby exhibiting or performing highly
immoral and indecent acts or shows thereat.

Upon arraignment, all pleaded not guilty. Later, however, Marina Padan, with the
assistance of her counsel de parte and counsel de oficio, asked for permission to
withdraw her former plea of not guilty, which was granted, and upon rearraignment, she
pleaded guilty to the charge. In a decision dated October 12, 1953, Marina Padan was
found guilty as charged and sentenced to six months and one day of prision
correccional and a fine of P200, with subsidiary imprisonment in case of insolvency, not
to exceed one-third of the principal penalty, with the accessory penalties prescribed by
the law, and to pay the proportionate costs. After trial of the three remaining accused,
they were all found guilty; Cosme Espinosa and Ernesto Reyes were sentenced each to
not less than six months and one day of prision correccional and not more than one
year, one month and eleven days of prision correccional, to pay a fine of P500, with
subsidiary imprisonment in case of insolvency, not to exceed one-third of the principal
penalty, and to pay the proportionate costs. Jose Fajardo was sentenced to not less
than one year, one month and ten days of prision correccional and not more than one
year eight months and twenty days, also of prision correccional, to pay a fine of P1,000,
with subsidiary imprisonment in case of insolvency, not to exceed one-third of the
principal penalty and to pay the proportionate costs. The army steel bed, the army
woolen blanket, the pillow, the ladies' panties, and the men's underwear, described in
Exhibit C, were declared confiscated.

The four accused appealed in the decision, the appeal having been sent to us.
Appellants Espinosa and Reyes failed to file their briefs within the period prescribed by
law and their appeal was dismissed by resolution of this Court of November 25, 1955,
and the decision as to them became final and executory on January 7, 1956, as
appears from the entry of judgment.

Because of her plea of guilty in the lower court, appellant Marina in her appeal do not
question her conviction; she merely urges the reduction of the penalty by eliminating the
prison sentence. We do not feel warranted in interfering with the exercise of discretion
in this matter, made by the lower court presided by Judge Magno S. Gatmaitan.
According to his decision of October 12, 1953, in imposing the sentence, he already
considered Marina's plea of leniency, and so despite the recommendation of the fiscal
that she be fined P600.00 in addition to the prison sentence of six months and one day,
his honor reduced the fine to only P200.

We believe that the penalty imposed fits the crime, considering its seriousness. As far
as we know, this is the first time that the courts in this jurisdiction, at least this Tribunal,
have been called upon to take cognizance of an offense against morals and decency of
this kind. We have had occasion to consider offenses like the exhibition of still moving
pictures of women in the nude, which we have condemned for obscenity and as
offensive to morals. In those cases, one might yet claim that there was involved the
element of art; that connoisseurs of the same, and painters and sculptors might find
inspiration in the showing of pictures in the nude, or the human body exhibited in sheer
nakedness, as models in tableaux vivants. But an actual exhibition of the sexual act,
preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no
room for art. One can see nothing in it but clear and unmitigated obscenity, indecency,
and an offense to public morals, inspiring and causing as it does, nothing but lust and
lewdness, and exerting a corrupting influence specially on the youth of the land. We
repeat that because of all this, the penalty imposed by the trial court on Marina, despite
her plea of guilty, is neither excessive nor unreasonable.

Going to the appeal of Jose Fajardo y Garcia, while he does not deny the fact of the
commission of the offense charged, he in its that he was not the manager or the person
incharge of the show or proceedings on the night of September 13, 1953; that his
participation, if he participate at all, was to play the role of an innocent bystander, but
that because of his popularity in the neighborhood, being popularly known as a "siga-
siga" character, he was requested by the spectators to select the man and the woman
to engage or indulge in the actual act of coitus before the spectators; that after making
the selection, he did not even care to witness the act but left the scene and returned to it
only when he heard a commotion produced by the raid conducted by the police.

The evidence on his active participation and that he was the manager and one in
charge of the show is however ample, even conclusive. We have carefully examined
such evidence, and we are satisfied that they fully support the findings of the trial court.
Such facts may be briefly stated as follows: At the corner of Morga Extension and
Camba Extension, Tondo, Manila, was a one story building which judging from the
picture exhibited is nothing but a shed, with a floor space of eight by fifteen meters
which was mainly used for playing ping-pong. A ping-pong table must have been placed
in the center and on two sides were built benches in tiers, so that the spectators seated
on them could look down and see the game. On September 13, 1953, however, the
building was used for a different purpose. It was to be the scene of what was said to be
an exhibition of human "fighting fish", the actual act of coitus or copulation. It must have
been advertised by word of mouth; tickets therefor were sold at P3 each, and the show
was supposed to begin at 8:00 o'clock in the evening. About that time of the night, there
was already a crowd around the building, but the people were not admitted into it until
about an hour later, and the show did not begin until about 9:15. The Manila Police
Department must have gotten wind of the affair; it bought tickets and provided several of
its members who later attended the show, but in plain clothes, and after the show
conducted a raid and made arrests. At the trial, said policemen testified as to what
actually took place inside the building. About two civilians who attended the affair gave
testimony as to what they saw.

The customers not provided with tickets actually paid P3 at the entrance to defendant
Ernesto Reyes. He also collected tickets. In all, there were about ninety paying
customers, while about sixteen were allowed to enter free, presumably friends of the
management. Jose Fajardo y Garcia was clearly the manager of the show. He was at
the door to see to it that the customers either were provided with tickets or paid P3.00
entrance fee. He even asked them from whom they had bought the tickets. He ordered
that an army steel bed be placed at the center of the floor, covered with an army blanket
and provided with a pillow. Once the spectators, about 106 in number, were crowded
inside that small building, the show started. Fajardo evidently to arouse more interest
among the customers, asked them to select among two girls presented who was to be
one of the principal actors. By pointing to or holding his hand over the head of each of
the two women one after the other, and judging by the shouts of approval emitted by the
spectators, he decided that defendant Marina Padan was the subject of popular
approval, and he selected her. After her selection, the other woman named Concha,
left. Without much ado, Fajardo selected Cosme Espinosa to be Marina's partner.
Thereafter, Cosme and Marina proceeded to disrobe while standing around the bed.
When completely naked, they turned around to exhibit their bodies to the spectators.
Then they indulged in lascivious acts, consisting of petting, kissing, and touching the
private parts of each other. When sufficiently aroused, they lay on the bed and
proceeded to consummate the act of coitus in three different positions which we deem
unnecessary to describe. The four or five witnesses who testified for the Government
when asked about their reaction to what they saw, frankly admitted that they were
excited beyond description. Then the police who were among the spectators and who
were previously provided with a search warrant made the raid, arrested the four
defendants herein, and took pictures of Marina and Cosme still naked and of the army
bed, which pictures were presented as exhibits during the trial. From all this, there can
be no doubt that Jose Fajardo y Garcia contrary to what he claims, was the person in
charge of the show. Besides, as found by the trial court and as shown by some of the
tickets collected from the spectators, submitted as exhibits, said tickets while bearing on
one side printed matter regarding an excursion to Balara to be held on August 30, 1953
from 7:00 a.m. to 5:00 p.m., sponsored by a certain club, on the other side appears the
following typewritten form, reading:

P3.00 Admit one

PLEASURE SHOW
Place:       P. Morga Ext. and Camba Ext.
Time :       8:00 o'clock sharp,

and superimposed on the same is the rubber stamped name "Pepe Fajardo," which
defendant Fajardo admits to be his name. Considering all the above circumstances, we
agree with the trial court that Jose Fajardo is the most guilty of the four, for he was the
one who conducted the show and presumably derived the most profit or gain from the
same.

As regards the penalty imposed by the trial court on appellant Fajardo, we agree with
the Solicitor General that the same is correct, except the minimum thereof which is
beyond the legal range, and which should be reduced from one year, one month, and
ten days of prision correccional to only six months of arresto mayor.
With the modification above-mentioned, the decision appealed from by Marina Padan
and Jose Fajardo are hereby affirmed, with costs against both.

Paras, C.J., Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L.,
Endencia and Felix, JJ., concur.

G.R. No. 184389, September 24, 2019

ALLAN MADRILEJOS, ALLAN HERNANDEZ, GLENDA GIL, AND LISA

GOKONGWEI-CHENG, PETITIONERS, v. LOURDES GATDULA, AGNES LOPEZ,
HILARION BUBAN, AND THE OFFICE OF THE CITY PROSECUTOR OF MANILA,
RESPONDENTS.

DECISION

JARDELEZA, J.:

This is a petition for prohibition with prayer for the issuance of a preliminary injunction
and/or temporary restraining order,1 seeking to prevent respondents from carrying out
the preliminary investigation of the criminal complaint entitled Abante, et al. v.
Asumbrado, et al., docketed as I.S. No. 08G-12234, on the ground that Ordinance No.
7780 is unconstitutional.

On July 7, 2008, 12 pastors and preachers from various churches filed a joint complaint-
affidavit2 against the officers and publishers of seven men's magazines and tabloids.
The complainants alleged that sometime during the period of September 2007 to July
2008, the identified magazines and tabloids, which were printed, published, distributed,
circulated, and/or sold in the City of Manila, contained material which were "clearly
scandalous, obscene, and pornographic within the meaning and in violation of Articles
200 and 201 of the Revised Penal Code and Ordinance No. 7780 of the City of Manila." 3

Articles 200 and 201 of the Revised Penal Code (RPC) provide:

Art. 200. Grave scandal. – The penalties of arresto mayor and public censure shall be
imposed upon any person who shall offend against decency or good customs by any
highly scandalous conduct not expressly falling within any other article of this Code.

Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows.
– The penalty of prision mayor or a fine ranging from six thousand to twelve thousand
pesos, or both such imprisonment and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to public
morals;
2.(a) The authors of obscene literature, published with their knowledge in any form; the
editors publishing such literature; and the owners/operators of the establishment selling
the same;

(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or
immoral plays, scenes, acts or shows, it being understood that the obscene literature or
indecent or immoral plays, scenes or shows, whether live or in film, which are
prescribed by virtue hereof, shall include those which: (1) glorify criminals or condone
crimes; (2) serve no other purpose but to satisfy the market for violence, lust or
pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of
prohibited drugs; and (5) are contrary to law, public order, morals, and good customs,
established policies, lawful orders, decrees and edicts;

3. Those who shall sell, give away or exhibit films, prints, engravings, sculptures, or
literature which are offensive to morals.

The pertinent portions of Ordinance No. 7780, 4 on the other hand, read as follows:

Sec. 2. Definition of Terms: As used in this ordinance, the terms:

A. Obscene shall refer to any material or act that is indecent, erotic, lewd or offensive,
or contrary to morals, good customs or religious beliefs, principles or doctrines, or to
any material or act that tends to corrupt or deprive the human mind, or is calculated to
excite impure imagination or arouse prurient interest, or is unfit to be seen or heard,
or which violates the proprieties of language or behavior, regardless of the motive of the
printer, publisher, seller, distributor, performer or author of such act or material, such as
but not limited to:

1. Printing, showing, depicting or describing sexual acts;

2. Printing, showing, depicting or describing children in sexual acts;

3. Printing, showing, depicting or describing completely nude human bodies; and

4. Printing, showing, depicting or describing the human sexual organs or the female
breasts.

B. Pornographic or pornography shall refer to such objects or subjects of

photography, movies, music records, video and VHS tapes, laser discs, billboards,
television, magazines, newspapers, tabloids, comics and live shows calculated to
excite or stimulate sexual drive or impure imagination, regardless of motive of the
author thereof, such as, but not limited to the following:

1. Performing live sexual acts in whatever form;

2. Those other than live performances showing, depicting or describing sexual acts;
3. Those showing, depicting or describing children in sex acts;

4. Those showing, depicting or describing completely nude human body, or showing,

depicting or describing the human sexual organs or the female breasts.

C. Materials shall refer to magazines, newspapers, tabloids, comics, writings,

photographs, drawings, paintings, billboards, decals, movies, music records, video and
VHS tapes, laser discs, and similar matters.

Sec. 3. Prohibited Acts The printing, publishing, distribution, circulation, sale and

exhibition of obscene and pornographic acts and materials and the production, public
showing and viewing of video and VHS tapes, laser discs, theatrical or stage and other
live performances and private showing for public consumption, whether for free or for a
fee, of pornographic pictures as herein defined are hereby prohibited within the City of
Manila and accordingly penalized as provided herein.

Sec. 4. Penalty Clause: any person violating this ordinance shall be punished as

follows:

1. For printing, publishing, distribution or circulation of obscene or

pornographic materials; the production or showing of obscene movies,
television shows, stage and other live performances; for producing or
renting obscene vidoes and VHS tapes, laser discs, for viewing obscene
movies, television shows, videos and VHS tapes, laser discs or stage and
other live performances; and for performing obscene act on stage and
other live performances – imprisonment of one (1) year or fine of five
thousand pesos (P5,000.00), or both, at the discretion of the court.
2. For the selling of obscene or pornographic materials – imprisonment of not
less than six (6) months nor more than one (1) year or a fine of not less
than one (1) thousand (P1,000.00), nor more than three thousand
(P3,000.00) pesos.

Provided, that in case the offender is a juridical person, the President and the members
of the board of directors, shall be held criminally liable; Provided, further, that in case of
conviction, all pertinent permits and licenses issued by the City of Government to the
offender shall be confiscated in favor of the City Government for destruction; Provided,
furthermore, that in case the offender is a minor and unemancipated and unable to pay
the fine, his parents or guardian shall be liable to pay such fine; provided, finally, that
this ordinance shall not apply to materials printed, distributed, exhibited, sold, filmed,
rented, viewed, or produced by reason of or in connection with or in furtherance of
science and scientific research and medical or medically related art, profession, and for
educational purposes (Emphasis supplied; underscoring in the original.)

Among those charged were petitioners Allan Madrilejos (Madrilejos), Allan Hernandez
(Hernandez), and Glenda Gil (Gil), Editor-in-Chief, Managing Editor, and Circulation
Manager, respectively, of For Him Magazine Philippines (FHM Philippines), with Lance
Y. Gokongwei and Lisa Gokongwei-Cheng, Chairman and President, respectively, of
Summit Publishing, FHM Philippines' publisher.5

On July 24, 2008, the Office of the City Prosecutor of Manila (OCP Manila) issued a
subpoena requiring petitioners to submit, within 10 days from notice, their counter-
affidavit, among others, and appear before the proper authorities to testify under oath or
answer clarificatory questions.6 On August 14, 2008, petitioners appeared before
respondent Lourdes Gatdula (Gatdula). They were informed of the creation of a panel of
prosecutors, composed of respondent Gatdula with co-respondents Agnes Lopez
(Lopez) and Hilarion Buban (Buban), to conduct the preliminary investigation in the
case. When petitioners requested for additional time within which to study the complaint
and prepare their respective counter-affidavits, preliminary investigation was again reset
to August 28, 2008.

Instead of filing their respective counter-affidavits, however, petitioners, prior to the

August 28, 2008 hearing, filed an urgent motion for bill of particulars. According to
petitioners: the joint complaint-affidavit failed to apprise them of the specific acts they
allegedly committed as to enable them to adequately and properly prepare their
counter-affidavits; since all seven publishers were charged in the same case, it would
appear that they were being charged as conspirators; yet, the specific acts supposedly
committed by petitioners in all the other publications were not indicated in the joint
complaint-affidavit with such particularity as to allow them to know and understand the
accusations against them.7 This was opposed by complainants.8

Meanwhile, on September 24, 2008, and pending the resolution of their urgent motion
for bill of particulars, petitioners filed the present action "on the ground that Ordinance
No. 7780 is invalid on its face for being patently offensive to their constitutional right to
free speech and expression, repugnant to due process and privacy rights, and violative
of the constitutionally established principle of separation of church and state." 9

In their comment, respondents urged the Court to dismiss the petition on the grounds
that: (1) the petition does not allege that the OCP Manila is conducting the preliminary
investigation proceedings without or in excess of its jurisdiction; (2) criminal
prosecutions cannot be enjoined; (3) petitioners are not the proper parties to challenge
the validity of Ordinance No. 7780; and (4) Ordinance No. 7780 enjoys the presumption
of constitutionality.10

On November 11, 2013, petitioners informed the Court that the OCP Manila had already
issued a Resolution dated June 25, 2013, which dismissed the charges for violation of
Article 200 of the RPC and Ordinance No. 7780 but nevertheless ordered the filing of
criminal informations for violation of Article 201(3) of the RPC. The pertinent portion of
the Resolution reads as follows:

xxxx
If the act or acts of the offender are punished under another article of the Revised Penal
Code, Article 200 is not applicable. Considering that the subject matter of the complaint
is the obscene publication under Article 201 of the Revised Penal Code, [petitioners]
should not be liable for Grave Scandal; hence, the complaint for Grave Scandal should
be dismissed.

On the other hand, considering that the subject matter covered by the city ordinance of
Manila is likewise the printing, publication, sale, distribution and exhibition of obscene
and pornographic acts and materials, it is already absorbed in Article 201 of the Revised
Penal Code and the complaint for violation of the city ordinance should likewise be
dismissed.

xxxx

Any person who has something to do with the printing, publication, circulation and sale
of the obscene publications should be made liable. Hence, except for respondents
Eugenio Lopez III, who was charged being the Chairman of the Board of ABS-CBN
Publishing, Inc., Ernesto M. Lopez, being the President of the said publishing company,
Lance Y. Gokongwei and Lisa Y. Gokongwei-Cheng, being the Chairman of the Board
and President, respectively of Summit Publishing, their actual knowledge, consent,
and/or participation in the obscene publications not having been clearly established by
the evidence, said respondents should not be made liable thereto. However, all the
other respondents being persons responsible for the publication, circulation and sale of
the subject obscene publications should be made liable thereto.

All the other respondents, either being the Editor-in-Chief, Managing Director, General
Manager or Circulation Manager of their respective publishing companies should be
made liable for Violation of Section 201 paragraph 2(a) of the Revised Penal Code.

x x x x11

The criminal case against petitioners for violation of Article 201(3) was docketed as
Criminal Case No. 13-30084 and assigned to Branch 16 of the Regional Trial Court
(RTC) of Manila.

Despite the dismissal of the charge for violation of Ordinance No. 7780, petitioners did
not move to withdraw the present action, adamant that the Ordinance "violates the
constitutional guarantees to free speech and expression, violates the right to due
process, and offends privacy rights." 12 On April 26, 2016 and upon petitioners' motion,
Criminal Case No. 13-30084 was ordered dismissed with prejudice. 13

We dismiss the petition on the following grounds:

(1) The dismissal of the criminal charges against petitioners for violation of the
provisions of Ordinance No. 778014 has rendered this case moot and academic; and
(2) Ordinance No. 7780, an anti-obscenity law, cannot be facially attacked on the
ground of overbreadth because obscenity is unprotected speech.

In light of the dismissal with prejudice of all criminal charges against petitioners, this
case has clearly been rendered moot and academic. A moot and academic case is one
that ceases to present a justiciable controversy by virtue of supervening events, so that
a declaration thereon would be of no practical use or value. Generally, courts decline
jurisdiction over such case or dismiss it on ground of mootness. 15 This pronouncement
traces its current roots from the express constitutional rule under paragraph 2 of Section
1, Article VIII of the 1987 Constitution that "[j]udicial power includes the duty of the
courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable x x x."16 Judicial power, in other words, must be based on
an actual justiciable controversy at whose core is the existence of a case involving
rights which are legally demandable and enforceable. Without this feature, courts have
no jurisdiction to act.17

True, exceptions to the general principle on moot and academic have been developed
and recognized through the years. At present, courts will decide cases, otherwise moot
and academic, if it feels that: (a) there is a grave violation of the Constitution; (b) the
situation is of exceptional character and paramount public interest is involved; (c) the
constitutional issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public; and (d) the case is capable of repetition yet evading
review.18 Further discussion will bear out that none of these exceptions obtains here.

It has been advanced that a ruling, however, on the merits of the petition must still be
had under the fourth exception to the doctrine on mootness since the Ordinance
remains valid within the City of Manila, and as such, the dismissal of the criminal
charges against petitioners does not mean that no other person will be charged or
penalized under it. This is not, however, how the exception applies.

The "capable of repetition, yet evading review" exception to the mootness doctrine was
first laid down by the United States (US) Supreme Court in the 1911 case of Southern
Pacific Terminal Co. v. Interstate Commerce Commission.19 There, a challenge was
made against an Order of the Interstate Commerce Commission (ICC) prohibiting the
terminal from granting a particular shipper preferential wharfage charges. By the time
the US Supreme Court was ready to decide the case, the cease and desist order, which
had a validity period of only two years, had already expired. In rejecting the motion to
dismiss the case on the ground of mootness, the Court held that:

In the case at bar the order of the Commission may to some extent (the exact extent it
is unnecessary to define) be the basis of further proceedings. But there is a broader
consideration. The question involved in the orders of the Interstate Commerce
Commission are usually continuing (as are manifestly those in the case at bar), and
these considerations ought not to be, as they might be, defeated, by short-term orders,
capable of repetition, yet evading review, and at one time the government, and at
another time the carriers, have their rights determined by the Commission without a
chance of redress.

Southern Pacific Terminal Co. was first cited in Our jurisdiction in the 1997 case
of Alunan III v. Mirasol.20 There, the Court held that the question of "whether the
COMELEC can validly vest in the DILG the control and supervision of SK (Sangguniang
Kabataan) elections is likely to arise in connection with every SK election and yet the
question may not be decided before the date of such elections." 21Alunan cited, among
other cases,22Roe v. Wade,23 where the petitioner, a pregnant woman, brought suit in
1970 to challenge the anti-abortion statutes of Texas and Georgia on the ground that
she had a constitutional right to terminate her pregnancy. Though the case was not
decided until three years later, long after the termination of petitioner's 1970 pregnancy,
the US Supreme Court refused to dismiss the case as moot:

[W]hen, as here, pregnancy is a significant fact in the litigation, the normal 266-day
human gestation period is so short that the pregnancy will come to term before the
usual appellate process is complete. If that termination makes a case moot, pregnancy
litigation seldom will survive much beyond the trial stage, and appellate review will be
effectively denied. Our law should not be that rigid. Pregnancy often comes more than
once to the same woman, and in the general population, if man is to survive, it will
always be with us. Pregnancy provides a classic justification for a conclusion of
nonmootness. It truly could be "capable of repetition, yet evading review." 24

Over the years, however, the US Supreme Court has increasingly limited the application
of the "capable of repetition, yet evading review" exception. Beginning in the 1975 case
of Sosna v. Iowa,25 a class action challenging the Iowa durational residency requirement
for divorce, the US Supreme Court held:

In Southern Pacific Terminal Co. v. ICC, 219 U. S. 498 (1911), where a challenged ICC
order had expired, and in Moore v. Ogilvie, 394 U. S. 814 (1969), where petitioners
sought to be certified as candidates in an election that had already been held, the Court
expressed its concern that the defendants in those cases could be expected again to
act contrary to the rights asserted by the particular named plaintiffs involved, and in
each case the controversy was held not to be moot because the questions presented
were "capable of repetition, yet evading review.'' That situation is not presented in
appellant's case, for the durational residency requirement enforced by Iowa does not at
this time bar her from the Iowa courts. Unless we were to speculate that she may move
from Iowa, only to return and later seek a divorce within one year from her return, the
concerns that prompted this Court's holdings in Southern Pacific and Moore do not
govern appellant's situation. But even though appellees in this proceeding might not
again enforce the Iowa durational residency requirement against appellant, it is
clear that they will enforce it against those persons in the class that appellant
sought to represent and that the District Court certified. In this sense the case
before us is one in which state officials will undoubtedly continue to enforce the
challenged statute and yet, because of the passage of time, no single challenger
will remain subject to its restrictions for the period necessary to see such a
lawsuit to its conclusion.26 (Emphasis and underscoring supplied.)

In the subsequent case of Weinstein, et al. v. Bradford,27 the US Supreme Court

rejected a plea to resolve an issue alleged to be "capable of repetition, yet evading
review."28 The Court found that the suit did not involve a class action—as in fact the
District Court refused Bradford's earlier motion to have it declared as such—and that
there is no demonstrated probability that Bradford will again be subjected to the parole
system. Thus, following Sosna, "the capable of repetition, yet evading review" exception
was limited to the situation where two elements must concur:

(1) the challenged action was in its duration too short to be fully litigated prior to
its cessation or expiration, and (2) there was a reasonable expectation that the
same complaining party would be subjected to the same action again. The instant
case, not a class action, clearly does not satisfy the latter element. While petitioners will
continue to administer the North Carolina parole system with respect to those who at
any given moment are subject to their jurisdiction, there is no demonstrated probability
that respondent will again be among that number. 29 (Emphasis supplied.)

The requirement that these two elements must concur has continuously been reiterated
in a number of later US cases.30

We would also adopt the two-requirement rule in this jurisdiction, beginning with Justice
Brion's Concurring and Dissenting Opinion in the En Banc Decision in Province of North
Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral
Domain (GRP)31 Dissenting, Justice Brion wrote:

Finally, let me clarify that the likelihood that a matter will be repeated does not mean
that there will be no meaningful opportunity for judicial review so that an exception to
mootness should be recognized. For a case to dodge dismissal for mootness under the
"capable of repetition yet evading review" exception, two requisites must be satisfied:
(1) the duration of the challenged action must be too short to be fully litigated prior to its
cessation or expiration; and (2) there must be reasonable expectation that the same
complaining party will be subjected to the same action again.

The time constraint that justified Roe v. Wade, to be sure, does not inherently exist
under the circumstances of the present petition so that judicial review will be evaded in
a future litigation. As this Court has shown in this case, we can respond as fast as the
circumstances require. I see nothing that would bar us from making a concrete ruling in
the future should the exercise of our judicial power, particularly the exercise of the
power of judicial review, be justified. 32 (Citations omitted.)

Two years later, the Court En Banc would categorically adopt th two-requirement rule
in Pormento v. Estrada,33 to wit:
While there are exceptions to this rule, none of the exceptions applies in this
case. What may most probably come to mind is the "capable of repetition yet
evading review" exception. However, the said exception applies only where the
following two circumstances concur: (1) the challenged action is in its duration
too short to be fully litigated prior to its cessation or expiration and (2) there is a
reasonable expectation that the same complaining party would be subjected to
the same action again. The second of these requirements is absent in this case. It
is highly speculative and hypothetical that petitioner would be subjected to the same
action again. It is highly doubtful if he can demonstrate a substantial likelihood that he
will "suffer a harm" alleged in his petition.34 (Emphasis supplied.)

This ruling in Pormento would be affirmed in the later cases of International Service for
the Acquisition of Agri-Biotech Applications, Inc. v. Greenpeace Southeast Asia
(Philippines)35 and Philippine Association of Detective and Protective Agency Operators
v. COMELEC.36

What has developed and prevailed over time, therefore, is a consensus that the
"capable of repetition, yet evading review" exception to mootness is not meant to be
applied literally. In the cases where the exception was correctly applied, time constraint
was a significant factor. As the US Supreme Court would later caution in Murphy v.
Hunt,37 a mere physical or theoretical possibility was never sufficient to satisfy the test
stated in Weinstein.38 If this were true, virtually any matter of short duration would be
reviewable.39 There must be a "reasonable expectation" or a "demonstrated probability"
that the same controversy will recur involving the same complaining party. 40

To employ the exception here would be to disregard the two-requirement rule laid down
in Weinstein. The often cited cases of David v. Macapagal-Arroyo41 and Belgica v.
Ochoa, Jr.42 also do not find application because the circumstances in these cases differ
from the circumstances here.

First. David involved suits challenging Proclamation No. 1017 and General Order No. 5
issued by then President Gloria Macapagal-Arroyo declaring a state of national
emergency and calling out the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP) to prevent and suppress acts of terrorism and lawless violence in
the country. Despite the lifting of said state of emergency one week later, the Court
refused to dismiss the case and justified its assumption of jurisdiction over the matter as
follows:

The "moot and academic" principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution; second, the exceptional
character of the situation and the paramount public interest is involved; third, when
constitutional issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public; and fourth, the case is capable of repetition yet evading
review.
All the foregoing exceptions are present here and justify this Court's assumption
of jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP
1017 and G.O. No. 5 violates the Constitution. There is no question that the issues
being raised affect the public's interest, involving as they do the people's basic rights to
freedom of expression, of assembly and of the press. Moreover, the Court has the duty
to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the
symbolic function of educating the bench and the bar, and in the present petitions, the
military and the police, on the extent of the protection given by constitutional
guarantees. And lastly, respondents' contested actions are capable of repetition.
Certainly, the petitions are subject to judicial review. 43

As observed by Justice Brion, David properly applied the principle owing to the history

of "emergencies" which had attended the administration of President Macapagal-Arroyo
since she assumed office. Given such history, it was not far-fetched for the then
President to again make a similar declaration in the future, or to possibly "act contrary to
the rights asserted by the particular named plaintiffs involved." 44

In Belgica, on the other hand, the Court rejected the view that th constitutionality issues
related to the assailed Priority Development Assistance Fund (PDAF) in the 2013
General Appropriations Act had been rendered moot and academic by the reforms
undertaken by the Executive Department and former President Benigno Simeon S.
Aquino III's declaration that he had already "abolished the PDAF." 45 The Court held that
the application of the "capable of repetition, yet evading review" exception was called
for because the preparation and passage of the national budget is, by constitutional
imprimatur, an affair of annual occurence:

The relevance of the issues before the Court does not cease with the passage of a
PDAF free budget for 2014. The evolution of the "Pork Barrel System," by its
multifarious iterations throughout the course of history, lends a semblance of truth to
petitioners' claim that "the same dog will just resurface wearing a different collar."
In Sanlakas v. Executive Secretary, the government had already backtracked on a
previous course of action yet the Court used the "capable of repetition but evading
review" exception in order "to prevent similar questions from re-emerging." The situation
similarly holds true to these cases. Indeed, the myriad of issues underlying the manner
in which certain public funds are spent, if not resolved at this most opportune time, are
capable of repetition and hence, must not evade judicial review. 46

In this case, it must be noted that petitioners' purpose in filing the present action was to
stop the conduct of the preliminary investigation into their alleged violation of an
unconstitutional statute—a process that concludes with an Order whether or not to indict
petitioners. Relatedly, and as it happened in this case, such an Order, if and when
issued, is not of such inherently short duration that it will lapse before petitioners are
able to see it challenged before a higher prosecutorial authority (i.e., the Department of
Justice) or the courts. In fact, and unless reversed by the Secretary of Justice or by the
courts, an order to indict does not lapse. Thus, the time constraint that justified the
application of the exception in Southern Pacific Terminal Co. (two-year validity of an
ICC cease and desist order) and Roe (266-day human gestation period) does not exist
here.47

Furthermore, when the criminal charges against petitioners were dismissed with
prejudice, they can no longer be refiled without offending the constitutional proscription
against double jeopardy. Petitioners have also failed to demonstrate a reasonable
likelihood that they will once again be hailed before the OCP Manila for the same or
another violation of Ordinance No. 7780.48 It should be noted that the OCP Manila did
not even question the dismissal of the case. There is likewise no showing that the
pastors and preachers who initiated the complaint here filed, or have threatened to
file, new charges against petitioners, over new material published in FHM Philippines
alleged to be obscene, after the case below was dismissed as early as July 19, 2016. 49

II

Even granting, for the sake of argument, that petitioners' case has not been mooted by
the dismissal of the charge for violation of Ordinance No. 7780 against them, they have
still failed to establish a cause of action to warrant a ruling in their favor.

Petitioners challenge the constitutionality of Ordinance No. 7780, alleging that it defines
the terms "obscene" and "pornography" in such a way that a very broad range of
speech and expression are placed beyond the protection of the Constitution, thus
violating the constitutional guarantee to free speech and expression. 50 Specifically,
petitioners take issue with the "expansive" language of Ordinance No. 7780 which,
petitioners claim, paved the way for complainants, a group of pastors and preachers, to
impose their view of what is "unfit to be seen or heard" and "violate[s] the proprieties of
language and behavior."51

Petitioners' arguments are facial attacks against Ordinance No. 7780 on the ground of
overbreadth. As will be shown, however, the overbreadth doctrine finds special and
limited application only to free speech cases. The present petition does not involve a
free speech case; it stemmed, rather, from an obscenity prosecution. As both this
Court and the US Supreme Court have consistently held, obscenity is not protected
speech. No court has recognized a fundamental right to create, sell, or distribute
obscene material. Thus, a facial overbreadth challenge is improper as against an anti-
obscenity statute.

Associate Justice Vicente V. Mendoza explained in his Separate Opinion in Estrada v.

Sandiganbayan52 why a facial overbreadth challenge is limited to cases involving
protected speech:

A facial challenge is allowed to be made to a vague statute and to one which is

overbroad because of possible "chilling effect" upon protected speech. The theory is
that "[w]hen statutes regulate or proscribe speech and no readily apparent construction
suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes with no requirement that the person
making the attack demonstrate that his own conduct could not be regulated by a statute
drawn with narrow specificity." The possible harm to society in permitting some
unprotected speech to go unpunished is outweighed by the possibility that the protected
speech of others may be deterred and perceived grievances left to fester because of
possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is
allowed for this reason alone, the State may well be prevented from enacting laws
against socially harmful conduct. In the area of criminal law, the law cannot take
chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to
free speech cases. They are inapt for testing the validity of penal statutes. As the
US Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not
recognized an 'overbreadth' doctrine outside the limited context of the First
Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms,
seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained
at all, have been curtailed when invoked against ordinary criminal laws that are sought
to be applied to protected conduct." For this reason, it has been held that "a facial
challenge to a legislative Act is ... the most difficult challenge to mount successfully,
since the challenger must establish that no set of circumstances exists under which the
Act would be valid." x x x

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing "on their faces" statutes in free speech cases or, as they are
called in American law, First Amendment cases. They cannot be made to do service
when what is involved is a criminal statute. With respect to such statute, the established
rule is that "one to whom application of a statute is constitutional will not be heard to
attack the statute on the ground that impliedly it might also be taken as applying to other
persons or other situations in which its application might be unconstitutional." 53 x x x
(Emphasis supplied.)

Justice Mendoza's Opinion has since become the controlling rule in cases where the
validity of criminal statutes is challenged on the ground of vagueness or overbreadth.
Quoting it at length, this Court in Romualdez v. Sandiganbayan54 held that:

[A]n "on-its-face" invalidation of criminal statutes would result in a mass acquittal of

parties whose cases may not have even reached the courts. Such invalidation would
constitute a departure from the usual requirement of "actual case and controversy" and
permit decisions to be made in a sterile abstract context having no factual
concreteness.
 xxxx

For this reason, generally disfavored is an on-its-face invalidation of statutes, described

as a "manifestly strong medicine" to be employed "sparingly and only as a last resort."
In determining the constitutionality of a statute, therefore, its provisions that have
allegedly been violated must be examined in the light of the conduct with which the
defendant has been charged.55

In Romualdez v. Comelec,56 the Court again relied on the Opinion of Justice Mendoza

in Estrada, reaffirming that it remains good law:

The rule established in our jurisdiction is, only statutes on free speech, religious
freedom, and other fundamental rights may be facially challenged. Under no case may
ordinary penal statutes be subjected to a facial challenge. The rationale is obvious. If a
facial challenge to a penal statute is permitted, the prosecution of crimes maybe
hampered. No prosecution would be possible. A strong criticism against employing a
facial challenge in the case of penal statutes, if the same is allowed, would effectively
go against the grain of the doctrinal requirement of an existing and concrete controversy
before judicial power may be appropriately exercised. A facial challenge against a penal
statute is, at best, amorphous and speculative. It would, essentially, force the court to
consider third parties who are not before it.57

Ordinance No. 7780 is a local legislation which criminalizes obscenity. Obscenity is

unprotected speech. This rule is doctrinal both her and in the US.

It was in 1942 when the US Supreme Court first held in the landmark case
of Chaplinsky v. New Hampshire58 that the lewd and the obscene are not protected
speech and therefore falls outside the protection of the First Amendment, thus:

Allowing the broadest scope to the language and purpose of the Fourteenth
Amendment, it is well understood that the right of free speech is not absolute at all times
and under all circumstances. There are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of which have never been thought to
raise any Constitutional problem. These include the lewd and obscene, the profane,
the libelous, and the insulting or "fighting" words — those which, by their very utterance
inflict injury or tend to incite an immediate breach of the peace. It has been well
observed that such utterances are no essential part of any exposition of ideas, and are
of such slight social value as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order and morality.

Beginning from Roth v. United States59 (implicit in the history of the First Amendment is

the rejection of obscenity) to Miller v. California,60 (this much has been categorically
settled by the Court, that obscene material is unprotected by the First Amendment), the
US Supreme Court has invariably held that obscene materials do not come under the
protection of the First Amendment. This doctrine continues to be valid to this day, as
exemplified in the later case of New York v. Ferber,61 where the US Supreme Court
noted that "[i]n Chaplinsky[,] x x x the Court laid the foundation for the excision of
obscenity from the realm of constitutionally protected expression." In Ferber, the Court
not only upheld the constitutionality of the child pornography statute of New York, it also
allowed the States greater leeway in the regulation of pornographic depictions of
children by essentially holding that the test for child pornography is lower than the
obscenity standard enunciated in Miller.62

As earlier stated, this Court has long accepted Chaplinsky's analysis that obscenity is

unprotected speech. In 1985, We held, in the case of Gonzalez v. Katigbak,63 that the
law on freedom of expression frowns on obscenity and rightly so. 64 The Court quoted
with approval Roth v. United States,65 which, in turn, cited Chaplinsky:

All ideas having even the slightest redeeming social importance—unorthodox ideas,
controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full
protection of the guaranties, unless excludable because they encroach upon the limited
area of more important interests. But implicit in the history of the First Amendment
is the rejection of obscenity as utterly without redeeming social importance. This
rejection for that reason is mirrored in the universal judgment that obscenity should be
restrained, reflected in the international agreement of over 50 nations, in the obscenity
laws of all of the 48 States, and in the 20 obscenity laws enacted by the Congress from
1842 to 1956.66

In Pita v. Court of Appeals,67 the Court declared that "[u]ndoubtedly, 'immoral' lore or

literature comes within the ambit of expression, although not its protection." 68 In Soriano
v. Laguardia,69 the Court reiterated that:

Indeed, as noted in Chaplinsky v. State of New Hampshire, "there are certain well-
defined and narrowly limited classes of speech that are harmful, the prevention and
punishment of which has never been thought to raise any Constitutional problems." In
net effect, some forms of speech are not protected by the Constitution, meaning that
restrictions on unprotected speech may be decreed without running afoul of the freedom
of speech clause. A speech would fall under the unprotected type if the utterances
involved are "no essential part of any exposition of ideas, and are of such slight social
value as a step of truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality." Being of little or no value, there
is, in dealing with or regulating them, no imperative call for the application of the clear
and present danger rule or the balancing-of-interest test, they being essentially modes
of weighing competing values, or, with like effect, determining which of the clashing
interests should be advanced.

Petitioner asserts that his utterance in question is a protected form of speech.

The Court rules otherwise. It has been established in this jurisdiction that unprotected
speech or low-value expression refers to libelous statements, obscenity or
pornography, false or misleading advertisement, insulting or "fighting words," i.e.,
those which by their very utterance inflict injury or tend to incite an immediate breach of
peace and expression endangering national security. 70 (Emphasis supplied.)

As this Court has recognized, laws that regulate or proscribe classes of speech falling
beyond the ambit of constitutional protection cannot, therefore, be subject to facial
invalidation because there is no "transcendent value to all society" that would justify
such attack.71

This is not to suggest, however, that these laws are absolutely invulnerable to
constitutional attack.

A litigant who stands charged under a law that regulates unprotected speech can still
mount a challenge that a statute is unconstitutional as it is applied to him or her. In such
a case, courts are left to examine the provisions of the law allegedly violated in light of
the conduct with which the litigant has been charged. 72 If the litigant prevails, the courts
carve away the unconstitutional aspects of the law by invalidating its improper
applications on a case to case basis.73

Under the circumstances, the proper recourse for petitioners would have been to go to
trial to allow the RTC, as the trier of fact, to judicially determine whether the materials
complained of as obscene were indeed proscribed under the language of Ordinance
No. 7780. As part of their defense, petitioners can probably argue for the adoption of
the Miller standards, which requires the trier of fact to ascertain:

(a) whether "the average person, applying contemporary community standards" would
find that the work, taken as a whole, appeals to the prurient interest; (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and (c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value. 74

Thereafter, petitioners can argue that, applying said standards to the specific material
over which they were being prosecuted, they should be acquitted.

On the other hand, the trial court, assuming it adopts Miller, will then have to receive
evidence and render opinion on such issues as to: (a) who is the "average" Filipino; (b)
what is the "community" against which "contemporary standards" are to be measured;
(c) whether the subject material appeals to the "prurient" interest; (d) whether the
material depicts "patently offensive" sexual conduct; and (e) whether the material "taken
as a whole" has serious value.

The decision of the RTC, whether or not in favor of petitioners, may then be brought up
on appeal to the Court of Appeals (CA), whose decision may later on be brought to this
Court for review. Such is the process observed by the US Supreme Court in all of the
obscenity cases cited by the ponencia which led to the adoption of the Miller standards
in the US. The cases, including Miller, all involved appellate review conducted with the
benefit of a full record. To stress, none of those cases involved a facial attack of the
challenged government regulation on the ground of overbreadth.

Hence, to grant the petition would be to declare Ordinance No. 7780 (and by implication
Article 201[3] of the RPC)75 unconstitutional in a complete vacuum. To recall, petitioners
were charged for selling or printing alleged obscene materials appearing in 14 pages
from four different issues of their magazines. While allegedly marked as annexes of the
joint complaint-affidavit, it does not even appear, however, that said pages were
attached by petitioners as annexes to their petition. There would thus be no basis even
for this Court to rule on the constitutionality of the Ordinance as applied to petitioners.

Indeed, the process We suggest here may take longer to resolve than a direct recourse
to this Court on an overbreadth challenge. Nevertheless, such is the process required of
Us by the Constitution. We must be mindful that the power of judicial review is not
boundless; it is limited by the actual case and controversy requirement and the
hierarchy of courts.

Equally important, under the separation of powers ordained by the Constitution, this
Court is vested only with judicial power, legislative power being entrusted exclusively
with the Congress. Were We to declare Ordinance No. 7780 unconstitutional in this
case, and impose the Miller standards on Congress and the City of Manila, We may be
faulted (and not without reason) for engaging in judicial legislation.

We stress at this point that the Court in Miller did not impose that the standards it laid
down be legislated. On the contrary, the Court there was very careful not to overstep its
judicial boundaries:

We emphasize that it is not our function to propose regulatory schemes for the
States. That must await their concrete legislative efforts. It is possible, however,
to give a few plain examples of what a state statute could define for regulation
under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or

perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory

functions, and lewd exhibition of the genitals.76 (Emphasis supplied.)

In fact, Miller explicitly held that the obscene conduct depicted or described in materials

which is sought to be regulated "must be specifically defined by the applicable state law,
as written or authoritatively construed." The Court in Miller, through Chief Justice
Burger, added that it was not holding, "as Mr. Justice Brennan intimates, that all States
other than Oregon must now enact new obscenity statutes. Other existing state
statutes, as construed heretofore or hereafter, may well be adequate." Indeed, it does
not appear that US Federal laws on obscenity have been amended subsequent to the
promulgation of Miller to suit or reflect said Decision's exact language.77 Accordingly,
whether a material is obscene or not is still for the Court to decide as it applies or
construes a specific statute in a particular case.

Finally, the path followed by the Court in adopting the "actual malice" rule in libel law is
instructive. In 1964, the US Supreme Court laid down its precedential ruling in the case
of New York Times v. Sullivan.78 There, the US Court held that a public official may not
successfully sue for libel unless the official can prove actual malice, which was defined
as with knowledge that the statement was false or with reckless disregard as to whether
or not it was true.

The Philippines eventually adopted the New York Times rule, but only after an actual
case involving a criminal prosecution for libel is presented to the Court under the
regular appeals process. Such an opportunity presented itself in 1999 when the Court,
thru Associate Justice Vicente V. Mendoza,79 categorically adopted the New York
Times rule as applied to the actual facts of the case and as part of the Decision's ratio
decidendi. This is the proper precedent to follow if the Court were to consider adopting
the Miller standard in our jurisdiction. Thus, and until the proper case presents itself,
prudence dictates that the Court should exercise judicial restraint.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

Bersamin, C.J., On official business.

Peralta, Caguioa, A. Reyes, Jr., J. Reyes, Jr., Hernando, Lazaro-Javier,
Inting, and Zalameda, JJ., concur.
Carpio, Acting C.J.,* I join the dissent of J. Marvic Leonen.
Perlas-Bernabe, J., Please see Dissenting Opinion.
Leonen, J., I dissent. see separate opinion.
Gesmundo, J., On official business.
Carandang, J., I join the dissent of J. MVF Leonen.