MODULE 5: JUSTIFYING CIRCUMSTANCES AND ABSOLUTORY CAUSES

A. Defense of self, relatives, and strangers (Art. 11 (1), (2), and (3), RPC)
Art. 11. Justifying circumstances. — The following do not incur any criminal liability:
1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;
First. Unlawful aggression.
Second. Reasonable necessity of the means employed to prevent or repel it.
Third. Lack of sufficient provocation on the part of the person defending himself.
2. Any one who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate, natural or adopted
brothers or sisters, or his relatives by affinity in the same degrees and those consanguinity within the fourth civil degree, provided that
the first and second requisites prescribed in the next preceding circumstance are present, and the further requisite, in case the
revocation was given by the person attacked, that the one making defense had no part therein.
3. Anyone who acts in defense of the person or rights of a stranger, provided that the first and second requisites mentioned in the first
circumstance of this Art. are present and that the person defending be not induced by revenge, resentment, or other evil motive.

1. Manaban v. Court of Appeals

G.R. No. 150723             July 11, 2006

RAMONITO MANABAN, petitioner,
vs.
COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

DECISION

CARPIO, J.:

The Case

This is a petition for review1 of the Decision2 dated 21 May 2001 and the Resolution3 dated 8 November 2001 of the Court of Appeals
in CA-G.R. CR No. 23790. In its 21 May 2001 Decision, the Court of Appeals affirmed the Decision of the Regional Trial Court of
Quezon City, Branch 219 ("trial court"), finding Ramonito Manaban ("Manaban") guilty of the crime of homicide. In its 8 November
2001 Resolution, the Court of Appeals modified its Decision by reducing the award for loss of earning capacity.

The Facts

The facts as narrated by the trial court are as follows:

On October 11, 1996, at around 1:25 o’clock in the morning, Joselito Bautista, a father and a member of the UP Police Force,
took his daughter, Frinzi, who complained of difficulty in breathing, to the UP Health Center. There, the doctors prescribed
certain medicines to be purchased. Needing money therefore, Joselito Bautista, who had taken alcoholic drinks earlier,
proceeded to the BPI Kalayaan Branch to withdraw some money from its Automated Teller Machine (ATM).

Upon arrival at the bank, Bautista proceeded to the ATM booth but because he could not effectively withdraw money, he
started kicking and pounding on the machine. For said reason, the bank security guard, Ramonito Manaban, approached and
asked him what the problem was. Bautista complained that his ATM was retrieved by the machine and that no money came
out of it. After Manaban had checked the receipt, he informed Bautista that the Personal Identification Number (PIN) entered
was wrong and advised him to just return the next morning. This angered Bautista all the more and resumed pounding on the
machine. Manaban then urged him to calm down and referred him to their customer service over the phone. Still not
mollified, Bautista continued raging and striking the machine. When Manaban could no longer pacify him, he fired a warning
shot. That diverted the attention of Bautista. Instead of venting his ire against the machine, he confronted Manaban. After
some exchange of words, a shot rang out fatally hitting Bautista. 4

On 24 October 1996, Manaban was charged with the crime of murder. The Information states:

That on or about the 11th day of October 1996, in Quezon City, Philippines, the above-named accused, armed with a gun,
and with intent to kill, qualified by treachery, did then and there wilfully, unlawfully and feloniously attack, assault and
employ personal violence upon the person of one JOSELITO BAUTISTA, by then and there, shooting him at the back
portion of his body, thereby inflicting upon said JOSELITO BAUTISTA mortal wounds which were the direct and
immediate cause of his untimely death, to the damage and prejudice of the heirs of the said JOSELITO BAUTISTA. 5

When arraigned on 4 December 1996,6 Manaban pleaded not guilty to the offense charged. Trial then followed.

The Trial

The Prosecution’s Version

The prosecution presented six witnesses: (1) Faustino Delariarte ("Delariarte"); (2) SPO1 Dominador Salvador ("SPO1 Salvador"); (3)
Rodolfo Bilgera ("Bilgera"); (4) Celedonia H. Tan ("Tan"); (5) Dr. Eduardo T. Vargas ("Dr. Vargas"); and (6) Editha Bautista
("Editha").

Delariarte was a security guard who was employed by the same security agency as Manaban. Delariarte testified that in the early
morning of 11 October 1996, their duty officer, Diosdado Morga, called him and informed him that one of the guards stationed at the
BPI Kalayaan Branch ("BPI Kalayaan") was involved in a shooting incident. When he arrived at the bank, Delariarte saw Manaban
inside the bank using the phone. He also saw Joselito Bautista ("Bautista") lying on the ground but still alive. He then told their
company driver, Virgilio Cancisio ("Cancisio"), to take Bautista to the hospital but to be careful since there was a gun tucked in
Bautista’s waist. Bautista allegedly reeked of alcohol. Delariarte further testified that when Manaban came out of the bank, Manaban
admitted to Delariarte that he shot Bautista.7

SPO1 Salvador was a police investigator assigned at Station 10, Philippine National Police-Central Police District Command (PNP-
CPDC) of Quezon City. SPO1 Salvador testified that on 11 October 1996, about 2:05 a.m., the duty desk officer SPO2 Redemption
Negre sent him, SPO1 Jerry Abad and SPO1 Ruben Reyes to BPI Kalayaan to investigate an alleged shooting incident. SPO1
Salvador testified that when they arrived at BPI Kalayaan, they were met by Delariarte and Cancisio. Manaban then approached them
and surrendered his service firearm, a .38 caliber revolver, to SPO1 Salvador. Manaban allegedly admitted shooting Bautista. SPO1
Salvador and his team investigated the crime scene. According to SPO1 Salvador, he saw Bautista lying on his back near the
Automated Teller Machine ("ATM"). A .38 caliber revolver inside a locked holster was tucked in Bautista’s right waist. SPO1
Salvador noticed that Bautista, who was still breathing, had been shot in the back. They brought Bautista to the East Avenue Medical
Center where Bautista later died. Thereafter, they proceeded to the police station and turned over Manaban to their desk officer for
proper disposition and investigation.8

Dr. Vargas, National Bureau of Investigation (NBI) Medico-Legal Officer, conducted an autopsy on Bautista’s cadaver. Dr. Vargas
testified that Bautista died of a gunshot wound. According to him, the point of entry of the bullet was at the back, on the right side of
the body and there was no exit point. He stated that he was able to recover the slug from the left anterior portion of the victim’s body
and that he later submitted the slug to the NBI Ballistics Division. Dr. Vargas further stated that the bullet wound was fatal because
the bullet hit the right lung and lacerated parts of the liver, stomach and the pancreas. Based on the location of the gunshot wound, Dr.
Vargas deduced that the assailant must have been behind the victim, on the right side, when he shot the victim. 9 Dr. Vargas also
testified that the absence of signs of near-fire indicates that the distance between the muzzle of the gun and the point of entry was
more than 24 inches. During cross-examination, Dr. Vargas testified that he was able to take blood samples from the victim which,
based on the NBI Chemistry Division analysis, tested positive for alcohol.10 Dr. Vargas issued a certificate of post-mortem
examination11 and an autopsy report.12

Bilgera was a ballistician at the Firearms Investigation Division (FID) of the NBI. Bilgera testified that upon receiving a letter-request
dated 11 October 1996 from PNP Police Inspector Percival Fontanilla, he conducted a ballistic examination on the following
specimens submitted to him:

1. One (1) ARMSCOR 2015, Caliber .38 Revolver, SN-28909 marked "DBS";

2. One (1) ARMSCOR 200, Caliber .38 Revolver, SN-P03471 marked "DBS";

3. One (1) Caliber .38 one badly deformed copper coated lead bullet marked "RM";

4. Two (2) Caliber .38 empty shells marked "RM-1" and "RM-2";

5. One (1) Caliber .38 misfired ammunition marked "RM-3";

6. Nine (9) Caliber .38 ammunition marked "RM-4", "RM-5", "RM-6" and "JB-1" to "JB-6"; and

7. One (1) Caliber .38 deformed copper coated lead bullet marked "JB". (Re-FID No. 606-14-1096 [N-96-2047]). 13

Based on the examination, Bilgera concluded that the bullet which was extracted from Bautista’s body by the medico-legal officer was
fired from the ARMSCOR 2015 .38 Caliber revolver with Serial No. 2890914 and that the empty shells also came from the same gun.
Bilgera submitted a written report15 on the result of his examination.

Editha, the widow of Joselito Bautista, testified that she was married to Bautista on 22 December 1993 in civil rites and that they have
four children, the eldest of whom was 13 years old. Editha stated that her husband, who was a member of the University of the
Philippines Police Force ("UP Police Force") since 1985, was receiving a monthly salary of P5,050 at the time of his death. She
narrated that on 11 October 1996, about 1:25 a.m., her husband brought their daughter Frinzi who had an asthma attack to the UP
Health Center where she was confined for three days. According to Editha, her husband then left to withdraw money at BPI Kalayaan
for the purchase of medicines. Later, she was fetched by members of the UP Police Force who informed her that her husband had been
shot. Editha claimed that as a consequence of her husband’s death, she spent more than P111,00016 for the nine-day wake,
embalmment and funeral services.17

The prosecution and the defense agreed to dispense with the testimony of Tan, the Assistant Manager of BPI Kalayaan. Instead, they
just agreed to stipulate that on 11 October 1996, about 7:45 a.m., Tan and BPI Custodian Elma R. Piñano retrieved BPI Express Teller
Card No. 3085-2616-21 issued to Bautista which was captured by the ATM because a wrong Personal Identification Number (PIN)
was entered.18

The Defense’s Version

The defense presented four witnesses: (1) Manaban; (2) Renz Javelona ("Javelona"); (3) Tan; and (4) Patrick Peralta ("Peralta").
Manaban, the accused, testified that he was employed by Eagle Star Security Agency as a security guard and was assigned at BPI
Kalayaan. On 10 October 1996, he was on duty from 7:00 p.m. until 7:00 a.m. the following day.

Manaban narrated that on 11 October 1996, about 1:40 a.m., Bautista tried to withdraw money from the ATM. Manaban then saw
Bautista pounding and kicking the ATM. When Manaban asked Bautista what was the problem, Bautista replied that no money came
out from the machine. According to Manaban, Bautista appeared to be intoxicated.

Manaban looked at the receipt issued to Bautista and saw that the receipt indicated that a wrong PIN was entered. Manaban informed
Bautista that the ATM captured Bautista’s ATM card because he entered the wrong PIN. He then advised Bautista to return the
following day when the staff in charge of servicing the ATM would be around.

Bautista replied that he needed the money very badly and then resumed pounding on the ATM. Manaban tried to stop Bautista and
called by telephone the ATM service personnel to pacify Bautista. Bautista talked to the ATM service personnel and Manaban heard
him shouting invectives and saw him pounding and kicking the ATM again.

When Manaban failed to pacify Bautista, Manaban fired a warning shot in the air. Bautista then faced him and told him not to block
his way because he needed the money very badly. Bautista allegedly raised his shirt and showed his gun which was tucked in his
waist. Manaban stepped back and told Bautista not to draw his gun, otherwise he would shoot.

However, Bautista allegedly kept on moving toward Manaban, who again warned Bautista not to come near him or he would be
forced to shoot him. Bautista suddenly turned his back and was allegedly about to draw his gun. Fearing that he would be shot first,
Manaban pulled the trigger and shot Bautista.

Manaban recounted that he then went inside the bank and called the police and his agency to report the incident. While he was inside
the bank, a fellow security guard arrived and asked what happened. Manaban answered, "wala yan, lasing."

Later, a mobile patrol car arrived. Manaban related the incident to the police officer and informed him that Bautista was still alive and
had a gun. Manaban then surrendered his service firearm to the police officer. According to Manaban, he fired his gun twice – once in
the air as a warning shot and the second time at Bautista who was about four meters from him.19

On cross-examination, Manaban further explained that after he fired the warning shot, Bautista kept coming toward him. Manaban
pointed his gun at Bautista and warned him not to come closer. When Bautista turned his back, Manaban thought Bautista was about
to draw his gun when he placed his right hand on his waist. Fearing for his life, he pulled the trigger and shot Manaban. According to
Manaban, "[n]oong makita ko siya na pabalikwas siya, na sadya bubunot ng baril, sa takot ko na baka maunahan niya ako at
mapatay, doon ko na rin nakalabit yung gatilyo ng baril." Manaban declared that it did not occur to him to simply disable the victim
for fear that Bautista would shoot him first.20

Javelona was an ATM Service Assistant of BPI. Javelona testified that on 11 October 1996, between 1:30 a.m. and 2:00 a.m., she
received a call from a client at BPI Kalayaan. The client, who was later identified as Bautista, complained: "Nagwi-withdraw ako dito
sa ATM Kalayaan. Mali daw yung PIN ko, alam ko tama yung PIN ko. Ilang beses ko nang ginamit, mali pa rin. Kailangan kong
mag-withdraw."

Javelona tried to placate Bautista and advised him not to insert his card anymore because it might be captured by the machine and to
try again later in the morning. Bautista allegedly answered angrily: "Na capture na nga, eh! Tama na nga yung PIN number [sic].
Hindi ako pwedeng hindi makakuha ng pera. Kailangan kong bumili ng gamot para sa anak ko. Hindi ko naman kasalanan ito."
Javelona replied: "Sir, hindi ho natin makukuha ang card ninyo ngayon kasi ang makaka-open lang ho ng ATM machine ay ang
officer ng Kalayaan Branch. Even if makuha natin ang card ninyo ngayon, hindi pa ninyo magagamit ngayon. Magagamit lang ninyo
as soon as mag-pa-encode kayo ng PIN number [sic]."

Bautista then reiterated angrily his dire need to withdraw money for the medicine of his daughter. Javelona apologized to Bautista and
informed him that there was really nothing she could do at that time. She also advised Bautista to go back to the bank at 9:00 a.m. to
get his ATM card and also to withdraw money over the counter. Bautista refused to be pacified and started cursing so Javelona
decided to hang up the phone.21

Tan, the Assistant Manager of BPI Kalayaan, testified that when she reported for work in the morning of 11 October 1996, she
discovered that the ATM was out of order. According to Tan, the ATM keyboard was not properly mounted and the keys were
damaged. Also, the telephone beside the ATM was hung up. Tan then called Peralta, the technician, to have the ATM repaired. When
Peralta opened the ATM, they found Bautista’s ATM card which was captured by the machine.22

Peralta, a Customer Engineer Specialist, testified that on 11 October 1996, BPI Kalayaan sought his assistance regarding their ATM.
When Peralta arrived at BPI Kalayaan, he talked to Tan and then proceeded to the ATM to assess the damage. According to Peralta,
the ATM keyboard was damaged and mis-aligned.23

The Trial Court’s Ruling

On 14 April 1999, the trial court rendered judgment, the dispositive portion of which reads:

WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of Homicide, the Court hereby sentences the
accused to suffer the penalty of imprisonment ranging from FOUR (4) YEARS and TWO (2) MONTHS of Prision
Correccional, as minimum, to EIGHT (8) YEARS and ONE (1) DAY of Pris[i]on Mayor, as maximum; to pay indemnity to
the heirs of Joselito Bautista for his death in the amount of P75,000.00; and actual damages in the amount of P111,324.00 for
the nine-day wake, embalm[ing] and funeral services, and P1,418,040.00 for the loss of Bautista’s earning capacity, the last
 to be paid by installment at least P3,030.00 a month until fully paid with the balance earning interest at the rate of six percent
(6%) per annum; and to pay the costs.

SO ORDERED.24

The trial court held that the defense failed to establish self-defense as a justifying circumstance. According to the trial court, unlawful
aggression, which is the most essential element to support the theory of self-defense, was lacking in this case. The trial court found
that, contrary to Manaban’s claim, Bautista was not about to draw his gun to shoot Manaban. Evidence show that Bautista’s gun was
still tucked in his waist inside a locked holster. Furthermore, the trial court held that Bautista could not have surprised Manaban with a
preemptive attack because Manaban himself testified that he already had his gun pointed at Bautista when they were facing each other.
The trial court likewise rejected Manaban’s claim of exemption from criminal liability because he acted under the impulse of an
uncontrollable fear of an equal or greater injury. The trial court held that the requisites for the exempting circumstance of
uncontrollable fear under paragraph 6, Article 12 of the Revised Penal Code are not present in this case. However, the trial court
credited Manaban with two mitigating circumstances: voluntary surrender and obfuscation.

The Court of Appeals’ Ruling

On appeal, the Court of Appeals affirmed the trial court’s decision. The Court of Appeals later reconsidered and modified its decision
with respect only to the award of loss of earning capacity. Using the formula 2/3 [80 – age at the time of death] x [gross annual
income – 80% gross annual income], the Court of Appeals recomputed the award for loss of earning capacity. In its Resolution dated 8
November 2001, the Court of Appeals reduced the award for the loss of the victim’s earning capacity from P1,418,040 to P436,320.

The Issues

In his petition for review, Manaban submits that:

1. The Respondent Court gravely erred in affirming the erroneous factual appreciation and interpretation by the trial court a
quo in practically affirming the decision of the latter court which are based on a clear misappreciation of facts and findings
grounded entirely on speculations, surmises or conjectures "in a way probably not in accord with law or with the applicable
jurisprudence of the Supreme Court."

2. The Respondent Court gravely erred in ignoring petitioner’s self-defense on the sole fact that the entrance of the deceased
victim’s wound was from the back.

3. The Respondent Court gravely erred in concluding that petitioner failed to establish unlawful aggression just because the
holster of the victim was still in a lock position.

4. Granting arguendo that petitioner made a mistake in his appreciation that there was an attempt on the part of the deceased
victim to draw his gun who executed "bumalikwas," such mistake of fact is deemed justified.

5. Finally, the Respondent Court gravely erred in awarding exorbitant and baseless award of damages to the heirs of deceased
victim.25

The Court’s Ruling

The petition is partly meritorious.

An appeal in a criminal case opens the entire case for review. The reviewing tribunal can correct errors though unassigned in the
appeal, or reverse the lower court’s decision on grounds other than those the parties raised as errors. 26

Unlawful Aggression is an Indispensable Requisite of Self-Defense

When the accused invokes self-defense, he in effect admits killing the victim and the burden is shifted to him to prove that he killed
the victim to save his life.27 The accused must establish by clear and convincing evidence that all the requisites of self-defense are
present.28

Under paragraph 1, Article 11 of the Revised Penal Code, the three requisites to prove self-defense as a justifying circumstance which
may exempt an accused from criminal liability are: (1) unlawful aggression on the part of the victim; (2) reasonable necessity of the
means employed to prevent or repel the aggression; and (3) lack of sufficient provocation on the part of the accused or the person
defending himself.29 Unlawful aggression is an indispensable requisite of self-defense. 30 Self-defense is founded on the necessity on
the part of the person being attacked to prevent or repel the unlawful aggression.31 Thus, without prior unlawful and unprovoked attack
by the victim, there can be no complete or incomplete self-defense.32

Unlawful aggression is an actual physical assault or at least a threat to attack or inflict physical injury upon a person. 33 A mere
threatening or intimidating attitude is not considered unlawful aggression, 34 unless the threat is offensive and menacing, manifestly
showing the wrongful intent to cause injury.35 There must be an actual, sudden, unexpected attack or imminent danger thereof, which
puts the defendant’s life in real peril.36

In this case, there was no unlawful aggression on the part of the victim. First, Bautista was shot at the back as evidenced by the point
of entry of the bullet. Second, when Bautista was shot, his gun was still inside a locked holster and tucked in his right waist. Third,
when Bautista turned his back at Manaban, Manaban was already pointing his service firearm at Bautista. These circumstances clearly
belie Manaban’s claim of unlawful aggression on Bautista's part. Manaban testified:
ATTY. ANCANAN

Q: You said the victim showed his gun by raising his shirt?

A: Yes, sir.

Q: The victim never drew his gun?

A: He was about to draw the gun when he turned around.

Q: My question is when the victim was facing you, the victim never drew his gun?

A: Not yet, sir.

Q: And when you told the victim not to come close, he did not come closer anymore?

A: He walked towards me, sir.

Q: For how many steps?

A: I cannot remember how many steps.

Q: And according to you, while he was facing you and walking towards you he suddenly turned his back to you, is that
correct?

A: Bumalikwas po at parang bubunot ng baril.

Q: Let us get the meaning of "bumalikwas", tumalikod sa iyo?

A: Bumalikwas po (witness demonstrating).

Q: Will you please demonstrate to us how the victim "bumalikwas"?

A: When he was facing me and I told him, "Sir, you just be there otherwise I am going to take the gun" and at that moment,
he, the victim turned his back and simultaneously drew the gun.

Q: When he was facing you, the victim never drew his gun, is that correct?

A: Not yet, sir.

Q: And according to you, it was at that point when he turned his back on you that he tried to draw his gun?

A: Yes, sir.

Q: You said that he tried to draw, but the fact is he merely placed his hand on his waist?

A: No, sir, when I saw him, when he was hit, I saw him, the hand was already on the gun but still tucked on his waist
(witness places his hand on his right waist with fingers open).

Q: And it was at that precise moment while the victim’s back was turned on you that you fired your shot?

A: When he was about to turn his back and it seems about to take his gun, that is the time I shot him because of my
fear that he would be ahead in pulling his gun and he might kill me.

Q: When you said, when you fired your shot, the victim’s gun was still tucked in his right waist, is that correct?

A: Yes, sir, his hand was on his waist.

Q: You just answer the question. Was the victim’s gun still tucked on his waistline?

A: Yes, sir.

Q: And his hand was merely placed on his hips. The victim’s right hand was merely placed on his right hip?

ATTY. CARAANG

I object. The witness testified that he was about to draw his gun.

COURT
 He is asking the question so he has to answer.

A: No, sir, the gun was on his waist.

ATTY. ANCANAN

Q: At the precise time that you fired your second shot, you could have aimed your gun at the extremities of the victim,
meaning legs or arms, is that correct?

A: When I saw him that he was about to draw his gun because of my fear that he would get ahead of me and he would
kill me, I did not mind anymore, I just inunahan ko siya.

ATTY. CARAANG

May I request that the answer of the witness be quoted as is?

A: Noong makita ko siya na pabalikwas siya, na sabay bubunot ng baril, sa takot ko na baka maunahan niya ako at
mapatay, doon ko na rin nakalabit yung gatilyo ng baril ko.

ATTY. ANCANAN

Q: Mr. Witness, how long have you been a security guard before this incident?

A: Around 7 months, sir.

Q: Now, before you were employed as security guard by the Eagle Star Security Agency, did you undergo any
training as a security guard?

A: Yes, sir.

Q: Where?

A: Camp Crame, sir.

Q: For how long?

A: Three (3) days, sir.

Q: And what did you learn from those 3 days training as security guard?

A: Our duties as security guard were lectured to us, sir.

Q: Now, were you not taught during the training that in any given situation, your first duty is to disable first an
aggressor?

ATTY. CARAANG

Objection, your Honor, I think that is no longer material besides, that is not part of my direct examination.

COURT

Witness may answer.

A: It was taught to us, sir, but it depends on my situation. If the person kept on doing what I told him not to do and it
would reach a point that it would endanger my life, of course even if you were in my place, you would do the same
thing, so nakipagsabayan na ako, sir.

Q: But in this particular case when you fired your second shot, the victim’s back was towards you, is that not correct?

ATTY. CARAANG

Objection, already answered, your Honor.

COURT

Witness may answer.

A: No, sir, I shot him only once, not twice.

Q: Please answer the question. When you fired your second shot . . .
 A: Bumalikwas ho ’yon eh.

Q: Please answer the question.

A: Yes, sir.

Q: And because his back was towards you, you could have easily disabled him by firing at his leg or at his arms, is
that not correct?

ATTY. CARAANG

I object, your Honor, it was already answered. He said he was not given the opportunity to have a second thought
and at that moment he was able to pull the trigger of his gun.

ATTY. ANCANAN

The witness already admitted that when he fired his gun, the victim’s back was towards the witness, so my last
question is just a follow-up.

ATTY. CARAANG

But the witness testified that he was not given the opportunity to have a second thought, that is why right then and
there, he pulled the trigger of his gun.

COURT

Objection noted, witness may answer.

A: What I was thinking at that time, was just to disarm him but when he turned, bumalikwas, and I saw that he was
going to draw a firearm and that was when I decided to "makipagsabayan."

xxx   xxx   xxx

RE-DIRECT EXAMINATION

ATTY. CARAANG

Q: Mr. Witness, when you and the victim were facing each other, the gun was already pointed to him, is it not? Your
gun?

A: Yes, sir, I pointed my gun at him.37

The allegation of Manaban that Bautista was about to draw his gun when he turned his back at Manaban is mere speculation. Besides,
Manaban was already aiming his loaded firearm at Bautista when the latter turned his back. In that situation, it was Bautista whose life
was in danger considering that Manaban, who had already fired a warning shot, was pointing his firearm at Bautista. Bautista, who
was a policeman, would have realized this danger to his life and would not have attempted to draw his gun which was still inside a
locked holster tucked in his waist. Furthermore, if Manaban really feared that Bautista was about to draw his gun to shoot him,
Manaban could have easily disabled Bautista by shooting his arm or leg considering that Manaban’s firearm was already aimed at
Bautista.

Aggression presupposes that the person attacked must face a real threat to his life and the peril sought to be avoided is imminent and
actual, not imaginary.38 Absent such actual or imminent peril to one’s life or limb, there is nothing to repel and there is no justification
for taking the life or inflicting injuries on another.39

Voluntary Surrender and Obfuscation

The trial court credited Manaban with two mitigating circumstances: voluntary surrender and obfuscation.

It is undisputed that Manaban called the police to report the shooting incident. When the police arrived, Manaban surrendered his
service firearm and voluntarily went with the police to the police station for investigation. Thus, Manaban is entitled to the benefit of
the mitigating circumstance of voluntary surrender.

On obfuscation, we find that the facts of the case do not entitle Manaban to such mitigating circumstance. Under paragraph 6, Article
13 of the Revised Penal Code, the mitigating circumstance of passion and obfuscation is appreciated where the accused acted upon an
impulse so powerful as naturally to have produced passion or obfuscation. The requisites of the mitigating circumstance of passion or
obfuscation are: (1) that there should be an act both unlawful and sufficient to produce such condition of mind; and (2) that the act
which produced the obfuscation was not far removed from the commission of the crime by a considerable length of time, during which
the perpetrator might recover his normal equanimity.40

In his testimony, Manaban admitted shooting Bautista because Bautista turned around and was allegedly about to draw his gun to
shoot Manaban. The act of Bautista in turning around is not unlawful and sufficient cause for Manaban to lose his reason and shoot
Bautista. That Manaban interpreted such act of Bautista as preparatory to drawing his gun to shoot Manaban does not make Bautista’s
act unlawful. The threat was only in the mind of Manaban and is mere speculation which is not sufficient to produce obfuscation
which is mitigating.41 Besides, the threat or danger was not grave or serious considering that Manaban had the advantage over Bautista
because Manaban was already pointing his firearm at Bautista when the latter turned his back. The defense failed to establish by clear
and convincing evidence the cause that allegedly produced obfuscation.

Award of Damages

The records42 reveal that Bautista was 36 years old at the time of his death and not 26 years old as stated by the trial court and the
Court of Appeals.43 Moreover, the annual salary of Bautista at the time of his death was already P60,864 and not P60,600.44 We
likewise modify the formula applied by the Court of Appeals in the computation of the award for loss of earning capacity. In
accordance with current jurisprudence,45 the formula for the indemnification for loss of earning capacity is:

Net Earning = Life Expectancy x [Gross Annual – Living Expenses]

Capacity Income (GAI)
  = 2/3(80 – age of deceased) x (GAI – 50% of GAI)

Using this formula, the indemnification for loss of earning capacity should be:

Net Earning = 2/3 (80 – 36) x [P60,864 – (50% x P60,864)]

Capacity
  = 29.33 x P30,432
  = P892,570.56

With regard to actual damages, the records show that not all the expenses that the Bautista family allegedly incurred were supported
by competent evidence. Editha failed to present receipts or any other competent proof for food expenses and rental fee for jeeps for the
funeral. Editha merely submitted a typewritten "Summary of Food Expenses & Others." 46 A mere list of expenses, without any official
receipts or any other evidence obtainable, does not to prove actual expenses incurred.47 Competent proof of the actual expenses must
be presented to justify an award for actual damages.48 In this case, only the following expenses were duly supported by official
receipts and other proof :

1. Embalming fee49 P11,000

2. Bronze Casket50 25,000
3. Cadillac Hearse fee51 3,500
4. Funeral Services52   30,000
    Total P69,500

Thus, we reduce the actual damages granted from P111,324 to P69,500.

We likewise reduce the indemnity for death from P75,000 to P50,000 in accordance with prevailing jurisprudence.53

WHEREFORE, we AFFIRM with MODIFICATION the Decision of the Court of Appeals dated 21 May 2001 and its Resolution
dated 8 November 2001. We find petitioner Ramonito Manaban guilty beyond reasonable doubt of the crime of Homicide. Applying
the Indeterminate Sentence Law and taking into account the mitigating circumstance of voluntary surrender, Ramonito Manaban is
hereby sentenced to suffer an indeterminate penalty ranging from six years and one day of prision mayor as minimum to 12 years and
one day of reclusion temporal as maximum. Ramonito Manaban is ordered to pay the heirs of Joselito Bautista: P892,570.56 as
indemnity for loss of earning capacity; P69,500 as actual damages; and P50,000 as indemnity for death.

SO ORDERED.
 2. Senoja v. People

G.R. No. 160341             October 19, 2004

EXEQUIEL SENOJA, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in People v. Exequiel Senoja, docketed as
CA-G.R. CR No. 26564, affirming with modification the Decision2 of the Regional Trial Court (RTC) of Baler, Aurora, Branch 96, in
Criminal Case No. 2259, for homicide.

The Case For the People

As culled by the Office of the Solicitor General (OSG) in its comment on the petition, the case stemmed from the following:

1. On April 16, 1997, petitioner Exequiel Senoja, Fidel Senoja, Jose Calica, and Miguel Lumasac were drinking gin in the hut
of Crisanto Reguyal in Barangay Zarah, San Luis, Aurora. An angry Leon Lumasac suddenly arrived at the said place,
holding a bolo in his right hand and looking for his brother Miguel. Petitioner and Jose tried to pacify Leon. But when
petitioner approached Leon, the latter tried to hack him so he embraced Leon and Jose took Leon’s bolo. Then, Leon and
petitioner talked things out and later reconciled (pp. 2-4, TSN, November 16, 1998; pp. 2-4, TSN, August 30, 2002; p. 2,
TSN, April 21, 1998; p. 5, TSN, March 14, 2001; p. 2, CA Decision).

2. Subsequently, Leon walked out of Crisanto’s hut followed by petitioner. Suddenly, about ten meters from the hut,
petitioner stabbed Leon at the back. When Leon turned around, petitioner continued stabbing him until he fell to the ground.
Then, petitioner ran towards the barangay road and threw away the "kolonial" knife he used in stabbing Leon. The latter died
on the spot (pp. 2-6, TSN, November 22, 2000; p. 5, TSN, August 30, 2002; p. 3, CA Decision).

3. Dr. Pura Deveza Valenzuela-Uy, San Luis Municipal Health Officer, examined the cadaver of Leon and found multiple
lesions on his body and five fatal wounds on his chest. Dr. Uy issued a medico-legal report and death certificate (Exhibits A
and B, pp. 13-14, Records; pp. 3-5, TSN, November 20, 1997).3

On August 13, 1997, an Information was filed charging petitioner Exequiel Senoja with homicide, the accusatory portion of which
reads:

That on April 16, 1997 at around 11 o’clock in the morning in Barangay Zarah, San Luis, Aurora, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, did then and there, willfully, unlawfully, and feloniously, with intent to
kill, attack, assault, and use personal violence upon the person of one Leon Lumasac by then and there stabbing him with a
bladed weapon locally known as "kolonyal" at the different parts of his body thereby inflicting upon the latter mortal stab
wounds which were the direct and immediate cause of his death thereafter.

CONTRARY TO LAW.4

The petitioner admitted killing the victim but invoked the affirmative defense of self-defense. His version of the fatal incident is set
forth in his petition at bar:

1. On April 16, 1997 at about 11 o’clock in the morning, Crisanto Reguyal, Fidel Senoja, Jose Calica, Miguel Lumasac, and
Exequiel Senoja were in the hut of Crisanto Reguyal in Barangay Zarah, San Luis, Aurora, drinking gin;
 2. Leon Lumasac suddenly arrived holding a bolo and hacked the doorpost of Crisanto’s hut, angrily demanding for his
brother, Miguel Lumasac, whom he suspected of drying up the ricefield he was plowing;

3. At this time, Miguel Lumasac was no longer inside the hut but fetching water;

4. To prevent Leon Lumasac from entering the hut, Exequiel Senoja (appellant) and Jose Calica stood by the door while
simultaneously trying to pacify Leon Lumasac;

5. Exequiel Senoja with a knife then went outside and tried to pacify Leon Lumasac but the latter angered by the gestures of
the former tried to hack Exequiel Senoja;

6. To avoid any injury, Exequiel Senoja embraced Leon which gave an opportunity to disarm the duo. Jose Calica got the
bolo of Leon and threw it away while Fidel Senoja took the "colonial" knife of Exequiel;

7. Jose Calica and Fidel Senoja were able to pacify Leon Lumasac so they invited him to get inside the hut. Inside the hut,
Leon Lumasac tried to box Fidel Senoja for siding with his brother, Miguel, but was prevented by Exequiel Senoja who held
Leon’s hands;

8. After a while, Leon Lumasac left but returned and angrily demanded for his bolo. Jose Calica gave his own bolo with a
sabbard to replace the bolo of Leon which he threw away;

9. With Jose Calica’s bolo in him, Leon Lumasac left but only after leaving a threat that something will happen to Exequiel
Senoja for siding with his brother;

10. After walking for about 10 meters away from the hut, Leon Lumasac turned around and saw Exequiel Senoja on his way
home following him;

11. Leon Lumasac walked back to meet Exequiel Senoja and upon reaching him, the former suddenly and treacherously
hacked the latter at the left side of his head and right thigh;

12. Unable to evade the treacherous attack by Leon Lumasac who persisted in his criminal design, Exequiel Senoja drew his
"colonial" knife and stabbed Leon Lumasac in self-defense, inflicting upon him multiple wounds which caused his death. 5

On June 7, 2002, the trial court rendered judgment against the petitioner, finding him guilty beyond reasonable doubt of the crime
charged. The fallo of the decision reads:

WHEREFORE, premises considered, this Court finds accused Exequiel Senoja GUILTY beyond reasonable doubt of the
crime of Homicide for the death of victim Leon Lumasac and hereby sentences him, applying Article 64, paragraph 1 of the
Revised Penal Code and Section 1 of the Indeterminate Sentence Law, (a) to suffer the penalty of twelve (12) years of prision
mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum; (b) to pay the heirs of the
victim the amount of Fifteen (sic) Thousand Pesos (Php 50,000.00) by way of civil indemnity; and (c) to pay the costs.

SO ORDERED.6

In due course, the petitioner appealed the decision to the CA which rendered judgment affirming, with modification, the decision of
the RTC. The petitioner now seeks relief from this Court, contending that:

The Honorable Court of Appeals failed to appreciate vital facts which, if considered, would probably alter the result of this
case on appeal finding appellant’s plea of self-defense credible.7

The petitioner faults the CA for its analysis of his testimony, as follows:

The injuries suffered by the petitioner at the left side of his head and right thigh was confirmed by Dr. Rodolfo Eligio in open
court. The relative positions of the wounds clearly show that the drunken Leon Lumasac brandished and executed several
hacking blows against Exequiel Senoja before he was stabbed, neutralized and finished by the latter. It would be physically
and highly improbable for the victim if he was treacherously hit at the left buttock and as he turned around to face the
petitioner, the latter stabbed him successively and without let-up hitting him 9 times resulting in 9 fatal wounds. This did not
give a chance to the victim to retaliate and inflict those wounds upon the aggressor. The victim used Mr. Jose Calica’s bolo
which was secured by its scabbard. Unless earlier drawn, it would be impossible for the victim to use it in defending himself
from the surprise attack and stabbing at a lightning fashion inflicting nine (9) fatal wounds. Time element was the essence of
this encounter which, as narrated by the Honorable Court, after the assailant poked the victim at the left side of the buttock
with the use of the "colonial" knife he stabbed him successively until he fell down dead. Under these circumstances, how
could Exequiel Senoja suffered (sic) those hacking (sic) wounds inflicted by the victim using Calica’s bolo? In all
indications, it was Leon Lumasac who attacked his adversary first but lost in the duel considering that he was older than
Exequiel Senoja and drunk. Clearly, therefore, it was Leon Lumasac who was the aggressor both in the first and second
phases of the incident and Exequiel Senoja was compelled to defend himself.

A closer scrutiny of the attending circumstances which resulted in this stabbing incident shows that Exequiel Senoja has no
compelling reasons to kill his godfather. On that same occasion, Mr. Exequiel Senoja was with the brother of the victim,
Miguel Lumasac, which only shows that there was no pre-existing grudge between these families. And still, what titillates
our imagination is the fact that Miguel Lumasac, who was then with the group drinking gin at the hut of Crisanto Reguyal did
not clearly impute this crime to petitioner. On the contrary, when he was presented to the witness stand, he was very evasive
 in answering the questions profounded by the prosecutors if he wanted the petitioner to be imprisoned. Miguel Lumasac
could have told the real truth that Senoja murdered his brother.8

The CA declared that, based on the evidence on record:

As seen from appellant’s testimony, Leon Lumasac’s actions can be divided into two (2) phases: the first phase, when Leon
entered Crisanto Reguyal’s hut, up to the time he and the appellant reconciled. The second phase was when Leon left to go
home. In phase one where Leon entered Reguyal’s hut, Leon was the aggressor but his aggression was mostly directed to his
brother Miguel who was not inside the hut anymore, although it was also partly directed at the appellant and even at Fidel
Soneja (sic). But Leon’s aggression against the appellant and Fidel Senoja ceased since, as appellant testified, when Leon
tried to box Fidel Senoja and he (appellant) told Leon "Huwag po, Huwag po," Leon was pacified.

In the second phase, when Leon left the hut to go home, his aggression had already ceased.

It is uncontroverted that the appellant followed the victim when the latter went out of the hut to go home. Appellant’s
testimony is that when he was two meters outside the hut, Leon turned around to face him saying "if you’re not only my
godson" in a threatening way, then approached and hacked him (with Calica’s bolo) inflicting wounds on the left side of his
head and his right thigh, thus, he (appellant) attacked the victim with the kolonial knife he was holding. That appellant
suffered such injuries was corroborated by the testimony of Dr. Rodolfo Eligio.9

The petition is denied.

Paragraph 1, Article 11, of the Revised Penal Code provides:

ART. 11. Justifying circumstances. – The following do not incur any criminal liability:

1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself.

The affirmative defense of self-defense may be complete or incomplete. It is complete when all the three essential
requisites are present; it is incomplete if only unlawful aggression on the part of the victim and any of the two
essential requisites were present. In fine, unlawful aggression on the part of the victim is a condition sine qua non to
self-defense, complete or incomplete. Whether or not the accused acted in self-defense is a question of fact. Like
alibi, the affirmative defense of self-defense is inherently weak because, as experience has demonstrated, it is easy
to fabricate and difficult to disprove.10

The right of self-defense proceeds from necessity and limited by it. The right begins where necessity does, and ends where it
ends.11 There is, however, a perceptible difference between necessity and self-defense, which is that, self-defense excuses the repulse
of a wrong; necessity justifies the invasion of a right. Hence, it is essential to self-defense that it should be a defense against a present
unlawful attack.12

Life can be taken under the plea of necessity, when necessary for the preservation of the life on the party setting up the plea. Self-
defense is an act to save life; hence, it is right and not a crime.13 There is a need for one, indeed, for it is a natural right for one to
defend oneself when confronted by an unlawful aggression by another. It is a settled rule that to constitute aggression, the person
attacked must be confronted by a real threat on his life and limb; and the peril sought to be avoided is imminent and actual, not merely
imaginary. Absent such an actual or imminent peril to one’s life or limb, there is nothing to repel; there is no necessity to take the life
or inflict injuries on another.14

But then what is the standard to use to determine whether the person defending himself is confronted by a real and imminent peril to
his life or limb? We rule that the test should be: does the person invoking the defense believe, in due exercise of his reason, his life or
limb is in danger? After all, the rule of law founded on justice and reason: Actus no facit remin, nisi mens sit rea. Hence, the guilt of
the accused must depend upon the circumstances as they reasonably appear to him.15

Unlawful aggression presupposes an actual, sudden, unexpected attack or imminent danger thereof, not merely a threatening or
intimidating attitude.16 Hence, when an inceptual/unlawful aggression ceases to exist, the one making a defense has no right to kill or
injure the former aggressor.17 After the danger has passed, one is not justified in following up his adversary to take his life. The
conflict for blood should be avoided if possible.18 An assault on his person, he cannot punish when the danger or peril is over. When
the danger is over, the right of self-defense ceases. His right is defense, not retribution.19

When the accused offers the affirmative defense of self-defense, he thereby admits killing the victim or inflicting injuries on him. The
burden of evidence is shifted on the accused to prove, with clear and convincing evidence, that he killed the victim or inflicted injuries
on him to defend himself. The accused must rely on the strength of his own evidence and not on the weakness of that of the
prosecution because if the evidence of the prosecution were weak, the accused can no longer be acquitted. 20

We agree with the CA that, as gleaned, even from the testimony of the petitioner, there were two separate but interrelated incidents
that culminated in the petitioner’s stabbing and killing of the victim Leon Lumasac. The first was the arrival of the victim, who was
armed with a bolo, in the hut of Crisanto Reguyal, looking for his brother Miguel Lumasac, whom he was angry at. The victim hacked
the wall of the house in anger. The petitioner, who was armed with a knife, tried to pacify the victim. The victim attempted to hack the
petitioner; nevertheless, the latter embraced and managed to pacify the victim. Forthwith, Jose Calica took the bolo of the victim and
threw it away. For his part, Fidel Senoja took the petitioner’s knife. As it was, the victim was already pacified. He and the petitioner
were already reconciled.21 Fidel even gave back the knife to the petitioner.

The second incident took place when the victim demanded that Calica return his bolo as he wanted to go home already. Because he
had thrown away the victim’s bolo, Calica was, thus, impelled to give his own. The victim then warned the petitioner three times,
"May mangyayari sa iyo, kung hindi ngayon, bukas," and left the hut. When the victim had already gone about ten meters from the
hut, the petitioner followed the victim. The victim turned around and told the petitioner, "Kung hindi lang kita inaanak." The victim
then hacked the petitioner, hitting the latter on the left side of his head and thigh. Believing that the victim would attack him anew, the
petitioner stabbed the victim frontally several times.22 He also stabbed the victim on the left buttock. The petitioner could not recall
how many times he stabbed the victim and what parts of the latter’s body had been hit.

The first episode inside the hut had been completed with the protagonist, the victim, and the petitioner reconciled. The second episode
commenced inside the hut and continued outside, and ended with the petitioner stabbing the victim several times.

The trial and the appellate courts gave no credence and probative weight to the testimony of the petitioner. So do we.

First. The findings of fact of the trial court and its conclusions based on the said findings are accorded by this Court high respect, if
not conclusive effect, especially when affirmed by the CA. This is because of the unique advantage of the trial court of having been
able to observe, at close range, the demeanor and behavior of the witnesses as they testify. This rule, however, is inapplicable if the
trial court ignored, overlooked, or misinterpreted cogent facts and circumstances which, if considered, will alter or reverse the
outcome of the case. We have reviewed the records and found no justification for a reversal of the findings of the trial court and its
conclusions based thereon.

Second. The victim sustained six hack wounds and one lacerated wound. This is gleaned from the Necropsy Report of Dr. Pura Uy, to
wit:

FINDINGS: The victim lies in supine position, stocky in built; his clothing completely soaked with fresh blood.

CHEST:

(+) stab wound 2 inches below the L nipple 4 inches deep running medially to the anterior median line.

(+) stab wound 2 inches to the L of the anterior median line at the level of the L nipple 5½ inches deep running
posteriorly.

(+) stab wound 1 inch above the L nipple 4 inches deep running inferomedially.

(+) stab wound 2 inches to the left of the anterior median line 4 inches deep running inferoposteriorly.

(+) stab wound 1 inch to the right of the anterior median line at the level of the second right intercostal space 0.5
inch in depth.

(+) stab wound ½ inch to the right of the anterior median line at the level of the xyphoid process 3½ inches deep
running superiorly.

(+) stab wound at the level of the L nipple L anterior axillary line 4½ inches in depth running superiorly to the left
armpit.

(+) hack wound at the left armpit 3 inches long injuring the muscles and the blood vessels.

(+) lacerated wound on the left palm almost cutting off the proximal phalanx of the left thumb.23

Five of the wounds of the victim on his chest were fatal.24 The victim also sustained a stab wound on the left buttock. According to the
doctor, it was unlikely for the victim to have survived even with medical attention.25 After the doctor made her initial autopsy and
submitted her report, she noted that the victim sustained a stab wound of about two inches deep at the left buttock, thus:

Q In this medico-legal report, you indicated that the cause of death of the victim is "Hypovolemic shock 2º to multiple stab
wounds, chest." Will you please explain this?

A "Ito pong nakalagay o dahilan ng pagkamatay ng biktima sa sobrang natapon na dugo gawa ng maraming saksak na tinamo
ng biktima sa kanyang dibdib ang nagbigay ng daan sa kanyang kamatayan."

Q Will you please tell us, Dr. Uy, if there is one amont (sic) these lesions that is located at the back of the victim?

A I forgot to tell you that a day after I submitted the report, the funeral parlor which attended the victim has called my
attention because of the wound at the back of the victim and I attended immediately to see these lesions at the home of the
victim. I reviewed for (sic) these lesions and I saw one lesion located at the left buttock of the victim.

Q What is the nature of the injury?

 A Stab wound, about two inches deep.

Q By the nature of the lesion, is it not fatal?

A It is not that fatal.

Q In your expert opinion, by the nature of the wound sustained by the victim, what could have been the relative position of
the victim in relation to his assailant?

A Based on my examination, I think the victim and the assailant were facing each other. "Masyadong malapit."

Q How many fatal wounds have (sic) the victim sustained in his chest?

A Five fatal stab wounds on the chest.26

Considering the number, nature and location of the wounds sustained by the victim, the petitioner’s plea of self-defense is
incredible.27 It bears stressing that the petitioner resolutely denied stabbing the victim at the buttock and insisted that he stabbed the
victim frontally:

Q As a matter of fact, he sustained an injury at the back of his buttock (pigi) and when he faced you, you stabbed him again
several times?

A That is not true, Sir.

Q But you are admitting that you stabbed him several times frontally?

A Yes, Sir, because I am (sic) defending myself.

Q You also stabbed him in his left armpit?

A I don’t know, Sir.

Q But you knew that you stabbed him in his buttock?

A No, Sir.

Q After stabbing him several times and felt that he was already dead, you already left the place?

A Yes, Sir.28

The testimony of the petitioner is belied by the physical evidence on record. The settled rule is that physical evidence is evidence of
the highest order; it speaks more eloquently than a hundred witnesses. 29

Third. The petitioner threw away his knife and failed to surrender it to the policemen; neither did he inform the policemen that he
killed the victim in self-defense. The petitioner’s claim that the victim was armed with a bolo is hard to believe because he even failed
to surrender the bolo.30

Fourth. The petitioner’s version of the events that transpired immediately before he stabbed the victim does not inspire belief. He
claims that when he saw the victim emerged from the hut, the victim walked towards the petitioner saying, "Kung hindi lang kita
inaanak," but hit and hacked the latter on the left buttock.31 As gleaned from his statement, the victim was not disposed, much less
determined to assault the petitioner. And yet, the petitioner insists that without much ado, the victim, nevertheless, hit him on the head
and on the thigh with his bolo.

Fifth. According to the petitioner, the victim warned him three times before leaving the hut, "May mangyayari sa iyo, kung hindi
ngayon, bukas." The petitioner testified that shortly before the victim uttered these words, the latter even touched the blade of the bolo
to see if it was sharp.32 The petitioner was, thus, aware of the peril to his life if he followed the victim. The petitioner, nevertheless,
followed the victim and left the hut after the victim had gone barely ten meters. He should have waited until after the victim had
already gone far from the hut before going home to avoid any untoward incident.

Sixth. The petitioner presented his brother-in-law Ruben Dulay to corroborate his testimony that the victim stabbed the petitioner and
that this impelled the latter to stab the former. But the testimony of Dulay contradicted the testimony of the petitioner:

Q When Exequiel Senoja stabbed Leon Lumasac several times, he immediately fell to the ground and was fatal[ly] wounded,
immediately died because of several stabs and lay (sic) down?

A I did not see that scene because Exequiel Senoja stabbed Leon Lumasac, I turn (sic) back upon seeing Leon Lumasac hack
Exequiel Senoja, I turn (sic) back because I was afraid then. When I turn (sic) back I saw them embracing each other, Sir.

Q And that is the time when Exequiel Senoja stabbed Leon Lumasac?

A I did not see the stabbing. What I only saw was that they were embracing each other, Sir.
 Q So you are now changing your answer, you actually saw Exequiel Senoja stabbing Leon Lumasac several times, after he
was hack[ed] by Leon Lumasac?

A I did not see that Exequiel Senoja stab Leon Lumasac, Sir.33

Seventh. The bare fact that the petitioner sustained a five-centimeter wound at the left temporal region and an eight-centimeter hack
wound on the anterior portion of his right thigh does not preclude the fact that he was the unlawful aggressor; nor buttress his plea that
he acted in self-defense. The petitioner failed to inform the doctor that he sustained the wounds to defend himself. Moreover, the
doctor testified that the wounds the petitioner sustained were slight:

Pros. Ronquillo:

Q Does (sic) the wound at the right anterior thigh vertical, diagonal or what?

A I did not place it, Sir.

Q So, you don’t know?

A It is vertical, Sir, but I did not place it on the record. And the hack wound on the temporal region is oblique.

Q Were the injuries only slight?

A Yes, Sir.

Q So, it is (sic) possible that these injuries were self-inflicted?

A Probably, Sir, but I cannot comment on that.

Q You said that the patient was under the influence of alcohol? Would you say that the patient was then so drunk at that
time?

A When I saw him at that time, he was moderately drunk.34

The doctor gave the petitioner due medications for 30 minutes and the petitioner then went home:

Q How did it happen that you were able to kill the victim in this case Mr. Leon Lumasac?

A Because when I went out, he hacked me, Sir.

Q Were you hit by the hack made by the victim in this case?

A Yes, Sir.

Q Where?

A Here, Sir.

And Witness is pointing to his left head.

Q Where else?

A (His) right thigh.

Q In what place did this incident happen?

A In the hut of Tata Santos, Sir.

Q What is his real name?

A Crisanto Reguyal, Sir.35

If, as claimed by the petitioner, the victim stabbed him frontally, it is incredible that the victim was able to hack the anterior part of his
right thigh.

Eighth. The testimony of the petitioner that the victim stabbed him outside the hut on the left side of his head and the anterior portion
of his right thigh is belied by his testimony on direct examination that the victim stabbed him while still inside the hut of Reguyal:

Q How did it happen that you were able to kill the victim in this case Mr. Leon Lumasac?

A Because when I went out, he hacked me, Sir.

 Q Were you hit by the hack made by the victim in this case?

A Yes, Sir.

Q Where?

A Here, Sir.

And Witness is pointing to his left head.

Q Where else?

A (His) right thigh.

Q In what place did this incident happen?

A In the hut of Tata Santos, Sir.

Q What is his real name?

A Crisanto Reguyal, Sir.36

But then, after the said incident, the petitioner and the victim had reconciled. We agree with the following findings of the appellate
court:

The question that must be resolved is whether or not the victim was the unlawful aggressor as the appellant’s testimony
pictures him to be. The Court rules in the negative. The victim had already left the hut and was ten (10) meters away from it.
There is no showing that the victim, who was drunk, was aware that appellant was following him, or that the appellant called
out to him so that he (the victim) had to turn around and notice him. It is clear that at that point in time, the victim was simply
walking toward his home; he had stopped being an aggressor. It was the appellant who, smarting from the earlier incident in
the hut where Leon told him "hindi ka tatagal, sa loob ng tatlong araw mayroong mangyayari sa iyo, kung hindi ngayon,
bukas" repeated three times, wanted a confrontation. Appellant stabbed or poked the victim in the left buttock resulting in the
non-fatal wound, and when the latter turned around, successively stabbed and hacked the victim in the armpit and chest until
he fell. In all, the victim suffered nine (9) wounds.

It is the well-considered finding of this Court that while Leon Lumasac had ceased being the aggressor after he left the hut to
go home, accused Exequiel Senoja was now the unlawful aggressor in this second phase of their confrontation. It bears
mentioning that appellant contradicted himself with respect for (sic) the reason why he left the hut. First, it was to pacify
Leon and the second reason was that he was going home.

As for appellant’s injuries, it is clear that they were sustained in the course of the victim’s attempt to defend himself as shown
by the lacerated wound on the victim’s left palm, a defensive wound.37

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed Decision of the Court of Appeals is AFFIRMED.

SO ORDERED.
 3. People v. Decena

G.R. No. 107874 August 4, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GEORGE DECENA y ROCABERTE, accused-appellant.

The Solicitor General for plaintiff-appellee.

Aquilino P. Bolinas for accused-appellant.

REGALADO, J.:

It is said that a fool shows his annoyance at once, but a prudent man overlooks an insult. 1 Had herein accused-appellant George
Decena reflected upon and hearkened to this biblical precept, he would not have found himself charged with murder for allegedly
stabbing to death one Jaime Ballesteros in San Fabian, Pangasinan on — of all dates — December 25, 1990. 2

Appellant thereafter stood trial on a plea of not guilty. On September 20, 1991, judgment was rendered by the trial court convicting
him of murder, imposing on him the penalty of reclusion perpetua, and ordering him to indemnify the heirs of the deceased in the
amount of P50,000.00, plus the additional amounts of P4,500.00 and P2,300.00 representing the funeral expenses for the victim, with
costs. 3

A motion for reconsideration filed by appellant was denied on August 26, 1992 for lack of merit, 4 hence this appellate review wherein
appellant contends, in his assigned errors, that the lower court blundered in disregarding his claim of self-defense, and in not
appreciating the mitigating circumstance of voluntary surrender in his favor, granting arguendo that he is guilty. 5

The case for the prosecution, anchored mainly on the testimony of Luzviminda Ballesteros, a 14-year old daughter of the victim, is to
the effect that on Christmas Day of 1990, at around 4:00 P.M., said Luzviminda was playing with her siblings at home. She recalled
being asked by her mother, Teresita Ballesteros, to fetch her father, Jaime Ballesteros, who was then watching a game in the
basketball court. On her way to the hardcourt, Luzviminda met her father walking home in an intoxicated state. Suddenly, she saw
appellant rushing towards her father with a long bladed weapon, prompting Luzviminda to warn her father to run for safety by
shouting in the vernacular "Batik kila, Tatay!" Instead, Jaime simply raised his hand, thus allowing appellant to stab him on the right
chest just below the nipple. Appellant then fled from the crime scene, while the victim also managed to run but stumbled and fell to
the ground. 6

Finding that her father was too heavy for her to carry, Luzviminda called for her mother at their house, which was only fifteen meters
away from the scene of the crime, saying: "Mother, come! My father has been stabbed by George Decena." Her mother immediately
called for a tricycle and rushed Jaime to the Provincial Hospital where, however, the victim was declared dead on arrival. 7

A different account of the incident was presented by the defense. It was claimed that at about 4:00 P.M. of that day, appellant was
watching a basketball game. The victim, Jaime Ballesteros, went around the basketball court, walking in a wobbly manner due to
drunkenness. Jaime stopped near the place where appellant was sitting and, for no apparent reason, held the latter by the neck with one
arm and, at the same time, poking a fork against it with the other arm. Barangay Tanod Romeo Decena who was also watching the
basketball game, intervened. He took the fork from Jaime and advised appellant to go home. The latter left and was followed later by
Jaime.

Fernando Biala, an uncle of appellant, additionally testified that while he was walking on the barangay road of Longos-Patalan, he
chanced upon Jaime attacking appellant with a balisong. Fortunately, he claims, appellant was able to parry the stabbing blow and a
struggle ensued between them. Appellant overpowered Jaime and succeeded in twisting the wrist of the victim and thrusting the knife
into the latter's body. 8

In criminal cases, the burden of proof is, of course, on the prosecution which must rely on the strength of its evidence and not on the
weakness of the defense. Herein appellant, however, invokes self-defense, thereby shifting the burden of evidence to him and
the onus of which he must satisfactorily discharge, otherwise conviction would follow from his admission that he killed the
victim. 9 Furthermore, appellant must this time rely on the strength of his own evidence and not on the weakness of that of the
prosecution, for even if that was weak, it cannot be disbelieved after appellant himself admitted the killing. 10

The basic requirement for self-defense, as a justifying circumstance, is that there was an unlawful aggression against the person
defending himself. It must be positively shown that there was a previous unlawful and unprovoked attack that placed the life of the
accused in danger and forced him to inflict more or less severe wounds upon his assailant, employing therefor reasonable means to
resist said attack. 11 The primal issue in this case, therefore, is whether or not appellant acted in complete self-defense in killing Jaime
Ballesteros, as claimed, thus absolving him from criminal liability.

Long has it been accepted that for the right of defense to exist, it is necessary that one be assaulted or that he be attacked, or at least
that he be threatened with an attack in an immediate manner, as, for example, brandishing a knife with which to stab him or pointing a
gun to be discharged against him. 12 So indispensable is unlawful aggression in self-defense that, without it, there is no occasion to
speak of the other two requisites for such a defense because both circumstances presuppose an unlawful aggression.

The theory of the defense is that the unlawful aggression started in the basketball court, when the victim tried to poke a fork on the
neck of appellant, and continued thereafter. Even on the elementary rule that when the aggressor leaves, the unlawful aggression
ceases, it follows that when appellant and Jaime heeded the advice of the barangay tanod for them to go home, the unlawful
aggression had ended. Consequently, since unlawful aggression no longer existed, appellant had no right whatsoever to kill or even
wound the former aggressor. The supposed continuation of the unlawful aggression which could have justified self-defense would
have been the circumstance that Jaime persisted in his design to attack appellant while the latter was already in front of his house. This
fact, however, the defense ruefully failed to establish.

It is an old but a respected and consistent rule that courts must determine by a balance of probabilities who of the participants in a
fight had, in the natural order of things, the reason to commence the aggression. 13 When appellant claimed that Jaime suddenly and
without any provocation tried to strangle him and poked a fork against his neck, in front of so many people in the basketball
court, 14 then he must necessarily have been deeply offended, if not insulted, and this fact undoubtedly fired him with a desire to get
even with the deceased.

The case at bar calls to mind the scenario and logical view that when a person had inflicted slight physical injuries on another, without
any intention to inflict other injuries, and the latter attacked the former, the one making the attack was an unlawful aggressor. The
attack made was evidently a retaliation. And, we find this an opportune occasion to emphasize that retaliation is different from an act
of self-defense. In retaliation, the aggression that was begun by the injured party already ceased to exist when the accused attacked
him. In
self-defense, the aggression was still existing when the aggressor was injured or disabled by the person making a defense. 15 We find
these observations apropos to the situation presented by the instant case.

It will be recalled that, as claimed by appellant, the unlawful aggression complained of also took place in front of his house, where
Jaime allegedly tried to attack him with a balisong, and not only in the basketball court. To support his theory of continuing
aggression, appellant alleged that whenever the victim was drunk, he would look for trouble. Again, the defense utterly failed to prove
this hypothesis. On the contrary, the wife of the victim testified that the latter has no such record in their barangay  16 and,
significantly, her said testimony was never refuted nor objected to by appellant.

Witnesses for and against the appellant testified that throughout the incident Jaime was inebriated and that he was staggering or
wobbling as he walked. 17 If he had such difficulty even in performing the normal bodily function of locomotion, it could not be
expected that he would muster enough courage to persist in attacking and attempting to kill appellant, as posited by the defense,
considering that the latter was decidedly stronger than him.

Essentially involved, in view of the conflicting submissions of the parties, is the matter of the credibility of their respective witnesses.
Accordingly, we are constrained to once again advert to the jurisprudential rule that the evaluation of the credibility of witnesses is
within the province of the trial court which is better circumstanced because of its direct role in the reception of the testimonial
evidence. 18 After examining and evaluating the conflicting versions of the prosecution and the defense, we agree with the court a
quo that the prosecution's account is deserving of more credence. On the other hand, we note grave inconsistencies in the declarations
of the defense witnesses.

First. Appellant, in his direct examination, testified that a fork was poked at his neck but, on cross-examination, he vacillated and
testified that it was a knife instead.19 Surely, appellant must know the difference between a fork and a knife.

Second. Appellant insisted that after the stabbing incident in the late afternoon of December 25, 1990 and until his surrender early
next morning,
he never went out of his house. This is contradicted by the unchallenged Entry No. 173 of the local police blotter, especially its
follow-up entry which the court below quoted in its decision:

Relative entry no. 173, elements of this station proceeded to Barangay Longos this town to locate the suspect and
returned station with the information that said suspect fled after the incident. One deformed
fork submitted by the father of the suspect Francisco Decena to Sgt. R.B. Diagan allegedly owned by the victim.
Under follow-up. Sgd. Ricardo Abrio, Pfc/PNP. 20

Third. Appellant's smug excuse for not immediately divulging to

Sgt. Romeo Diagan that he was not at fault for the death of Jaime was that he was terribly afraid to do so. Strangely, however, this was
not his demeanor and attitude when he boldly professed and contended that it was Jaime who first poked a fork against his neck while
he was watching a basketball game. Parenthetically, the other half of the story was deliberately not narrated. 21 Be that as it may, the
Court has heretofore noted that a righteous individual will not cower but would readily admit the killing at the earliest opportunity if
he were legally and morally justified in doing so. A belated plea or denial suggests that it is false and only an afterthought made as a
last ditch effort to avoid the consequences of the crime. 22

Fourth. The supposed eyewitness of the defense who is appellant's uncle, Fernando Biala, impresses us as either an imaginative or a
coached witness. He avowed that he saw the stabbing incident, but shock and surprise allegedly prevented him from going near Jaime
or appellant, when he saw Jaime about to stab appellant. However, on cross-examination, he said that he merely chanced on them at
the time when Jaime was already actually stabbing appellant, for the reason that he did not see where appellant or Jaime came from
before the incident. When asked how long the fight transpired, he vaguely answered that he could not tell because when he went up
the road, the two were already fighting. However, he again vacillated by saying that when Jaime was about to deliver the stabbing
blow, appellant caught the hand of Jaime "squeezed and pushed it forward and Jaime Ballesteros hit himself." 23 This is a mercurial
account since, to repeat, this witness categorically admitted that even as he was still going up the road, the supposed combatants were
already fighting and that fight actually lasted only a few seconds.

Appellant declared that he is related to the victim's wife, that they are neighbors, and that there was no grudge between him and the
victim, nor with any member of the family of the latter. 24 This was apparently to bolster his theory that he had no motive to assault the
victim. His assertions, however, work both ways for it also established the fact that Luzviminda would likewise not just
indiscriminately and improvidently point her finger at anybody but to the culprit himself, in order to obtain justice for the death of her
father.

That the principal witness is the victim's daughter even lends more credence to her testimony as her natural interest in securing the
conviction of the guilty would deter her from implicating persons other than the culprits, for otherwise the latter would thereby gain
immunity. 25 This observation, however, could not be said for the defense witnesses who are all relatives of appellant. As such, they
may be expected to cover up for the crime. While relationship between the accused and his witnesses is not necessarily detrimental to
the former's line of defense, this relationship, taken together with the want of logic (of) in the declarations of said witnesses, yields the
conclusion that their testimonies lack credibility. 26

In contrast, and further reinforcing the case for the People, is the fact that when Luzviminda shouted, "Mother, come! My father has
been stabbed by George Decena," that outcry and the identification of the culprit were unrehearsed and spontaneously made at the
spur of the moment. Having been given shortly after a startling occurrence took place before the eyes of Luzviminda, who had thereby
no opportunity to concoct or contrive a story, that statement has all the earmarks of the truth of what she said. Under the
environmental circumstances hereinbefore related, it easily passes the tests not only of admissibility in evidence but also of weight in
its veracity.

We, however, reject the trial court's holding that the killing of the victim was attended by treachery. Any circumstance which would
qualify a killing to murder must be proven as indubitably as the crime itself. 27 Here, the qualifying circumstance of treachery cannot
be appreciated, for none of the prosecution's arguments can uphold its allegation that, in the language of the law, appellant committed
the crime by employing means, methods or forms in the execution thereof which tended directly and especially to insure its execution,
without risk to himself arising from the defense which the offended party might make. It is true that the attack was sudden, but that
fact per se does not bespeak the circumstance of alevosia. 28 It is further required that the means, methods or forms were deliberated
upon or consciously adopted by the offender. 29 The crime committed, therefore, was simple homicide.

The reasons advanced by the lower court for appreciating the aggravating circumstance of disregard of age are not persuasive. There
was no showing that appellant deliberately intended to insult the age of Jaime. We hold that for this circumstance to constitute an
aggravation of criminal liability, it is necessary to prove the specific fact or circumstance, other than that the victim is an old man,
showing insult or disregard of age in order that it may be considered as an aggravating circumstance. 30 In the case at bar, that
consideration does not obtain, aside from the fact that while the victim was forty-three years of age, he was not necessarily old, nor
was there a radical disparity between his age and that of appellant who was twenty-five years old.

The rule is that the mitigating circumstance of voluntary surrender may properly be appreciated if the following requisites concur: (a)
the offender had not actually been arrested; (b) the offender surrendered himself to a person in authority or to an agent of a person in
authority; and (c) the surrender was voluntary. We believe that the mitigating circumstance of voluntary surrender may be awarded to
appellant. The records disclose that appellant was, evidently with his concurrence, accompanied and surrendered by his father to a
person in authority, Sgt. Romeo Diagan, early in the morning after the incident and before he could actually be arrested. That
mitigating circumstance can, therefore, be properly considered in his favor to impose the penalty in its minimum period.

WHEREFORE, the appealed judgment of the court a quo is hereby MODIFIED by finding accused-appellant George Decena y
Rocaberte guilty of the crime of homicide, and imposing upon him an indeterminate sentence of eight (8) years of prision mayor, as
minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as maximum. In all other respects, the said judgment is
hereby AFFIRMED.

SO ORDERED.
 4. People v. Dela Cruz

G.R. No. 128359               December 6, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROBERTO E. DELA CRUZ, accused-appellant.

DECISION

VITUG, J.:

For automatic review is the decision, dated 27 November 1996, of the Regional Trial Court, Branch 27, of Cabanatuan City, which has
sentenced to death Roberto E. de la Cruz for "Qualified Illegal Possession of Firearm and Ammunition with Homicide."

The information charging the accused with the offense, to which he pled "not guilty" when arraigned, read:

"That on or about the 27th day of May, 1996, in the City of Cabanatuan, Republic of the Philippines and within the jurisdiction of this
Honorable Court, the abovenamed accused, with intent to kill, did then and there, willfully, unlawfully and feloniously attack, assault
and use personal violence upon the person of one DANIEL MACAPAGAL, by shooting the latter with the use of an unlicensed
Caliber .38 snub nose firearm, with Serial No. 120958, thereby inflicting upon him gunshot wounds on different parts of his body,
which caused also his death."1

The facts relied upon by the trial court in its judgment were narrated by the Office of the Solicitor General in the People’s brief.

"The victm Daniel Macapagal, a married man, had been a live-in partner of prosecution witness Ma. Luz Perla San Antonio for about
two to three years before San Antonio took appellant Roberto de la Cruz, widower, as lover and live-in partner. At the time of the
incident on May 27, 1996, appellant and San Antonio were living in a house being rented by San Antonio at 094 Valino District,
Magsaysay Norte, Cabanatuan City (pp. 2-3, TSN, July 6, 1996).

"At around 6:00 o’clock in the evening on May 27, 1996, San Antonio and appellant were resting in their bedroom when they heard a
car stop in front of their house and later knocks on their door. San Antonio opened the front door and she was confronted by
Macapagal who made his way inside the house holding a gun in his hand, despite San Antonio’s refusal to let him in. He seemed to be
looking for something or somebody as Macapagal walked passed San Antonio and inspected the two opened bedrooms of the house.
He then went to the close bedroom where the appellant was and banged at the door with his gun while yelling ‘Come out. Come out’
(p. 4, Ibid.). Appellant then opened the door but he was greeted by Macapagal’s gun which was pointed at him. Appellant immediately
closed the door while Macapagal continued banging at it. When appellant again opened the door moments later, he was himself armed
with a .38 caliber revolver. The two at that instant immediately grappled for each other’s firearm. A few moments later shots were
heard. Macapagal fell dead on the floor.

"Appellant told San Antonio to call the police on the phone. After a few minutes police officers arrived at the scene. They saw the
dead body of Macapagal slumped on the floor holding a gun. San Antonio met them on the door and appellant was by then sitting. He
stood up to pick his .38 caliber revolver which he surrendered to SPO3 Felix Castro, Jr. Appellant told the police that he shot
Macapagal in self-defense and went with them to the police station.

Dr. Jun Concepcion, Senior Medical Officer of the Cabanatuan City General Hospital, performed an autopsy on the cadaver of
Macapagal and submitted a report thereon (Exhibit H). Macapagal sustained four (4) gunshot wounds. Three of the wounds were non-
penetrating or those that did not penetrate a vital organ of the human body. They were found in the upper jaw of the left side of the
face, below the left shoulder and the right side of the waist. Another gunshot wound on the left side of the chest penetrated the heart
and killed Macapagal instantly.

It was later found by the police that the firearm used by Macapagal was a 9mm caliber pistol. It had one magazine loaded with twelve
(12) live ammunition but an examination of the gun showed that its chamber was not loaded.
"Macapagal had a license to carry said firearm. On the other hand, appellant, who denied ownership of the .38 caliber revolver he
used, had no license therefore."2

Unmoved by the claim of self-defense invoked by the accused, the trial court pronounced a judgment of guilt and handed a death
sentence.

"WHEREFORE, premises considered, the Court finds and so declares the accused ROBERTO DELA CRUZ guilty beyond reasonable
doubt of the crime of Qualified Illegal Possession of Firearm and Ammunition with Homicide, which is penalized under Presidential
Decree 1866, Sec. 1, and he is hereby sentenced to suffer death; he is, likewise ordered to indemnify the heirs of the deceased victim
in the sum of P50,000.00; to pay actual damages in the sum of P65,000.00 representing burial and interment expenses; and the sum of
P2,865,600.00 representing loss of income."3

In his plea to this Court, accused-appellant submits that the decision of the court a quo is bereft of factual and legal justification.

When self-defense is invoked, the burden of evidence shifts to the accused to show that the killing has been legally justified. 4 Having
owned the killing of the victim, the accused should be able to prove to the satisfaction of the court the elements of self-defense in
order that the might be able to rightly avail himself of the extenuating circumstance. 5 He must discharge this burden by clear and
convincing evidence. When successful, an otherwise felonious deed would be excused mainly predicated on the lack of criminal intent
of the accused. Self-defense requires that there be (1) an unlawful aggression by the person injured or killed by the offender, (2)
reasonable necessity of the means employed to prevent or repel that unlawful aggression, and (3) lack of sufficient provocation on the
part of the person defending himself.6 All these conditions must concur.7

Here, the Court scarcely finds reversible error on the part of the trial court in rejecting the claim of self-defense.

Unlawful aggression, a primordial element of self-defense, would presuppose an actual, sudden and unexpected attack or imminent
danger on the life and limb of a person – not a mere threatening or intimidating attitude 8 - but most importantly, at the time the
defensive action was taken against the aggressor. True, the victim barged into the house of accused-appellant and his live-in partner
and, banging at the master bedroom door with his firearm, he yelled, "come out." Accused-appellant, however, upon opening the door
and seeing the victim pointing a gun at him, was able to prevent at this stage harm to himself by promptly closing the door. He could
have stopped there. Instead, accused-appellant, taking his .38 caliber revolver, again opened the bedroom door and, brandishing his
own firearm, forthwith confronted the victim. At this encounter, accused-appellant would be quite hardput to still claim self-defense. 9

The second element of self-defense would demand that the means employed to quell the unlawful aggression were reasonable and
necessary. The number of the wounds sustained by the deceased in this case would negate the existence of this indispensable
component of self-defense.10 The autopsy report would show that the victim sustained four gunshot wounds –

"1. Gunshot wound on the (L) shoulder as point of entry with trajectory toward the (L) supra-scapular area as point to exit (through-
through);

"2. Gunshot wound on the abdomen ® side laterally as point of entry (+) for burned gun powder superficially with trajectory towards
on the same side as point of exit, through-through;

"3. Gunshot wound on the anterior chest (L) mid-clavicular line, level 5th ICS as point of entry with trajectory towards the (L) flank as
point of exit (through-through) Internally: penetrating the heart (through-through) anterior then posterior then (L) hemidia –prhagm
and stomach; and

"4. Lacerated wound linear ½ inch in length (L) cheek area" 11 -

which would, in fact, indicate a determined effort to kill.12

It would be essential, finally, for self-defense to be aptly invoked that there be lack of sufficient provocation on the part of the person
defending himself. When accused-appellant, opening the bedroom door the second time confronted, instead of merely taking
precautionary measures against, the victim with his own gun he had taken from the cabinet, accused-appellant could no longer
correctly argue that there utterly was no provocation on his part.

The elements of illegal possession of firearm are (1) the existence of the subject firearm, (2) the ownership or possession of the
firearm, and (3) the absence of the corresponding license therefor.13

Accused-appellant claims that he did not have animus possidendi in the use and possession of the .38 caliber revolver since he has
used it for just a "fleeting moment" to defend himself. This assertion is not supported by the evidence. Apparently, the subject revolver
has all the while been kept in the house of accused-appellant and his live-in partner. Accused-appellant himself has thusly testified:

"Q: When for the first time did you see that firearm inside the drawer of Candy?

"A: Since the last week of April, sir.

"Q: Did you ask Candy why she was in possession of that gun?

"A: Once I opened her drawer and I asked her who owns that gun, sir.

"Q: And what was her reply as to who owns that gun?
"A: According to her that firearm was used as payment by a group of persons who were her customers at the Videoke, sir.

"Q: And what else did Candy tell you about that firearm, if you know?

"A: She also told me that we can use that gun for protection, sir."14

The trial court has erred, however, in imposing the death penalty on accused-appellant.1âwphi1 Presidential Decree No. 1866 is
already amended by Republic Act No. 8294. Section 1, third paragraph, of the amendatory law provides that "if homicide or murder is
committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating
circumstance." The provision is clear, and there would be no need to still belabor the matter. 15

The mitigating circumstance of voluntary surrender should be considered in favor of accused-appellant. Immediately following the
shooting incident, he instructed his live-in partner to call the police and report the incident. He waited for the arrival of the authorities
and readily acknowledge before them his having been responsible for the shooting of the victim.16

The aggravating circumstance of the use of unlicensed firearm being effectively offset by the mitigating circumstance of voluntary
surrender,17 the penalty prescribed by law for the offense should be imposed in its medium period. 18 Article 249 of the Revised Penal
Code prescribes the penalty of reclusion temporal in the crime of homicide, the range of which is twelve (12) years and one (1) day to
twenty (20) years. Applying the Indeterminate Sentence Law, the maximum penalty shall be taken from the medium period
of reclusion temporal, i.e., from fourteen (14) years, eight (8) months, and one (1) day to seventeen (17) years and four (4) months,
while the minimum shall be taken from the penalty next lower in degree, which is prision mayor, anywhere in its range of from six (6)
years and one (1) day to twelve (12) years.

The amount of P2,865,600.00 awarded by the trial court as damages for loss of earning capacity should be modified. The testimony of
the victim’s surviving spouse, Marina Villa Juan Macapagal, on the earning capacity of her husband Daniel Macapagal sufficiently
established the basis for making possible such an award.19 The deceased was 44 years old at the time of his death in 1996, with a gross
monthly income of P9,950.00.20 In accordance with the American Expectancy Table of Mortality adopted in several cases 21 decided by
this Court, the loss of his earning capacity should be calculated thusly:

Net earning capacity (x) = life expectancy x Gross annual income less living expenses (50% of gross income annual)
or
2(80-44)
(x) = x [119,400.00 - 59,700.00]
3
x = 24 x 59,700.00
x = P1,432,800.00
===========

WHEREFORE, the decision appealed from is MODIFIED. Accused-appellant ROBERTO DELA CRUZ y ESGUERRA is hereby
held guilty of HOMICIDE with the use of an unlicensed firearm, an aggravating circumstance that is offset by the mitigating
circumstance of voluntary surrender, and he is accordingly sentenced to an indeterminate penalty of nine (9) years and one (1) day
of prision mayor as minimum to sixteen (16) years and one (1) day of reclusion temporal as maximum. The award of P2,865,600.00
for loss of earning is reduced to P1,432,800.00. In other respects, the judgment of the trial court is AFFIRMED.

In the service of his sentence, accused-appellant shall be credited with the full time of his preventive detention if they have agreed
voluntarily and in writing to abide the same disciplinary rules imposed upon convicted prisoners pursuant to Article 29 of the Revised
Penal Code.

SO ORDERED.
 5. People v. Jaurigue

C.A. No. 384             February 21, 1946

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NICOLAS JAURIGUE and AVELINA JAURIGUE, defendants.
AVELINA JAURIGUE, appellant.

Jose Ma. Recto for appellant.

Assistant Solicitor General Enriquez and Solicitor Palma for appellee..

DE JOYA, J.:

Nicolas Jaurigue and Avelina Jaurigue were prosecuted in the Court of First Instance of Tayabas, for the crime of murder, of which
Nicolas Jaurigue was acquitted, but defendant Avelina Jaurigue was found guilty of homicide and sentenced to an indeterminate
penalty ranging from seven years, four months and one day of prision mayor to thirteen years, nine months and eleven days
of reclusion temporal, with the accessory penalties provided by law, to indemnify the heirs of the deceased, Amando Capina, in the
sum of P2,000, and to pay one-half of the costs. She was also credited with one-half of the period of preventive imprisonment suffered
by her.

From said judgment of conviction, defendant Avelina Jaurigue appealed to the Court of Appeals for Southern Luzon, and in her brief
filed therein on June 10, 1944, claimed —

(1) That the lower court erred in not holding that said appellant had acted in the legitimate defense of her honor and that she
should be completely absolved of all criminal responsibility;

(2) That the lower court erred in not finding in her favor the additional mitigating circumstances that (a) she did not have the
intention to commit so grave a wrong as that actually committed, and that (b) she voluntarily surrendered to the agents of the
authorities; and

(3) That the trial court erred in holding that the commission of the alleged offense was attended by the aggravating
circumstance of having been committed in a sacred place.

The evidence adduced by the parties, at the trial in the court below, has sufficiently established the following facts:

That both the defendant and appellant Avelina Jaurigue and the deceased Amado Capina lived in the barrio of Sta. Isabel, City of San
Pablo, Province of Laguna; that for sometime prior to the stabbing of the deceased by defendant and appellant, in the evening of
September 20, 1942, the former had been courting the latter in vain, and that on one occasion, about one month before that fatal night,
Amado Capina snatched a handkerchief belonging to her, bearing her nickname "Aveling," while it was being washed by her cousin,
Josefa Tapay.

On September 13, 1942, while Avelina was feeding a dog under her house, Amado approached her and spoke to her of his love, which
she flatly refused, and he thereupon suddenly embraced and kissed her and touched her breasts, on account of which Avelina, resolute
and quick-tempered girl, slapped Amado, gave him fist blows and kicked him. She kept the matter to herself, until the following
morning when she informed her mother about it. Since then, she armed herself with a long fan knife, whenever she went out, evidently
for self-protection.

On September 15, 1942, about midnight, Amado climbed up the house of defendant and appellant, and surreptitiously entered the
room where she was sleeping. He felt her forehead, evidently with the intention of abusing her. She immediately screamed for help,
which awakened her parents and brought them to her side. Amado came out from where he had hidden under a bed in Avelina's room
and kissed the hand of Nicolas Jaurigue, her father, asking for forgiveness; and when Avelina's mother made an attempt to beat
Amado, her husband prevented her from doing so, stating that Amado probably did not realize what he was doing. Nicolas Jaurigue
sent for the barrio lieutenant, Casimiro Lozada, and for Amado's parents, the following morning. Amado's parents came to the house
of Nicolas Jaurigue and apologized for the misconduct of their son; and as Nicolas Jaurigue was then angry, he told them to end the
conversation, as he might not be able to control himself.
In the morning of September 20, 1942, Avelina received information that Amado had been falsely boasting in the neighborhood of
having taken liberties with her person and that she had even asked him to elope with her and that if he should not marry her, she would
take poison; and that Avelina again received information of Amado's bragging at about 5 o'clock in the afternoon of that same day.

At about 8 o'clock in the evening of the same day, September 20, 1942, Nicolas Jaurigue went to the chapel of the Seventh Day
Adventists of which he was the treasurer, in their barrio, just across the provincial road from his house, to attend religious services,
and sat on the front bench facing the altar with the other officials of the organization and the barrio lieutenant, Casimiro Lozada.
Inside the chapel it was quite bright as there were electric lights.

Defendant and appellant Avelina Jaurigue entered the chapel shortly after the arrival of her father, also for the purpose of attending
religious services, and sat on the bench next to the last one nearest the door. Amado Capina was seated on the other side of the chapel.
Upon observing the presence of Avelina Jaurigue, Amado Capina went to the bench on which Avelina was sitting and sat by her right
side, and, without saying a word, Amado, with the greatest of impudence, placed his hand on the upper part of her right thigh. On
observing this highly improper and offensive conduct of Amado Capina, Avelina Jaurigue, conscious of her personal dignity and
honor, pulled out with her right hand the fan knife marked Exhibit B, which she had in a pocket of her dress, with the intention of
punishing Amado's offending hand. Amado seized Avelina's right hand, but she quickly grabbed the knife with her left hand and
stabbed Amado once at the base of the left side of the neck, inflicting upon him a wound about 4 1/2 inches deep, which was
necessarily mortal. Nicolas Jaurigue, who was seated on one of the front benches, saw Amado bleeding and staggering towards the
altar, and upon seeing his daughter still holding the bloody knife, he approached her and asked: "Why did you do that," and answering
him Avelina said: "Father, I could not endure anymore." Amado Capina died from the wound a few minutes later. Barrio lieutenant
Casimiro Lozada, who was also in the same chapel, approached Avelina and asked her why she did that, and Avelina surrendered
herself, saying: "Kayo na po ang bahala sa aquin," meaning: "I hope you will take care of me," or more correctly, "I place myself at
your disposal." Fearing that Amado's relatives might retaliate, barrio lieutenant Lozada advised Nicolas Jaurigue and herein defendant
and appellant to go home immediately, to close their doors and windows and not to admit anybody into the house, unless accompanied
by him. That father and daughter went home and locked themselves up, following instructions of the barrio lieutenant, and waited for
the arrival of the municipal authorities; and when three policemen arrived in their house, at about 10 o'clock that night, and questioned
them about the incident, defendant and appellant immediately surrendered the knife marked as Exhibit B, and informed said
policemen briefly of what had actually happened in the chapel and of the previous acts and conduct of the deceased, as already stated
above, and went with said policemen to the police headquarters, where her written statements were taken, and which were presented
as a part of the evidence for the prosecution.

The high conception of womanhood that our people possess, however humble they may be, is universal. It has been entertained and
has existed in all civilized communities.

A beautiful woman is said to be a jewel; a good woman, a treasure; and that a virtuous woman represents the only true nobility. And
they are the future wives and mothers of the land. Such are the reasons why, in the defense of their honor, when brutally attacked,
women are permitted to make use of all reasonable means available within their reach, under the circumstances. Criminologists and
courts of justice have entertained and upheld this view.

On the other hand, it is the duty of every man to protect and show loyalty to womanhood, as in the days of chivalry. There is a country
where women freely go out unescorted and, like the beautiful roses in their public gardens, they always receive the protection of all.
That country is Switzerland.

In the language of Viada, aside from the right to life on which rests the legitimate defense of our own person, we have the right to
property acquired by us, and the right to honor which is not the least prized of our patrimony (1 Viada, Codigo Penal, 5th ed., pp. 172,
173).

The attempt to rape a woman constitutes an unlawful aggression sufficient to put her in a state of legitimate defense, inasmuch as a
woman's honor cannot but be esteemed as a right as precious, if not more, than her very existence; and it is evident that a woman who,
thus imperiled, wounds, nay kills the offender, should be afforded exemption from criminal liability, since such killing cannot be
considered a crime from the moment it became the only means left for her to protect her honor from so great an outrage (1 Viada,
Codigo Penal, 5th ed., p. 301; People vs. Luague and Alcansare, 62 Phil., 504). .

As long as there is actual danger of being raped, a woman is justified in killing her aggressor, in the defense of her honor. Thus, where
the deceased grabbed the defendant in a dark night at about 9 o'clock, in an isolated barrio trail, holding her firmly from behind,
without warning and without revealing his identity, and, in the struggle that followed, touched her private parts, and that she was
unable to free herself by means of her strength alone, she was considered justified in making use of a pocket knife in repelling what
she believed to be an attack upon her honor, and which ended in his death, since she had no other means of defending herself, and
consequently exempt from all criminal liability (People vs. De la Cruz, 16 Phil., 344).

And a woman, in defense of her honor, was perfectly justified in inflicting wounds on her assailant with a bolo which she happened to
be carrying at the time, even though her cry for assistance might have been heard by people nearby, when the deceased tried to assault
her in a dark and isolated place, while she was going from her house to a certain tienda, for the purpose of making purchases (United
States vs. Santa Ana and Ramos, 22 Phil., 249).

In the case, however, in which a sleeping woman was awakened at night by someone touching her arm, and, believing that some
person was attempting to abuse her, she asked who the intruder was and receiving no reply, attacked and killed the said person with a
pocket knife, it was held that, notwithstanding the woman's belief in the supposed attempt, it was not sufficient provocation or
aggression to justify her completely in using deadly weapon. Although she actually believed it to be the beginning of an attempt
against her, she was not completely warranted in making such a deadly assault, as the injured person, who turned out to be her own
brother-in-law returning home with his wife, did not do any other act which could be considered as an attempt against her honor
(United States vs. Apego, 23 Phil., 391)..
In the instant case, if defendant and appellant had killed Amado Capina, when the latter climbed up her house late at night on
September 15, 1942, and surreptitiously entered her bedroom, undoubtedly for the purpose of raping her, as indicated by his previous
acts and conduct, instead of merely shouting for help, she could have been perfectly justified in killing him, as shown by the
authorities cited above..

According to the facts established by the evidence and found by the learned trial court in this case, when the deceased sat by the side
of defendant and appellant on the same bench, near the door of the barrio chapel and placed his hand on the upper portion of her right
thigh, without her consent, the said chapel was lighted with electric lights, and there were already several people, about ten of them,
inside the chapel, including her own father and the barrio lieutenant and other dignitaries of the organization; and under the
circumstances, there was and there could be no possibility of her being raped. And when she gave Amado Capina a thrust at the base
of the left side of his neck, inflicting upon him a mortal wound 4 1/2 inches deep, causing his death a few moments later, the means
employed by her in the defense of her honor was evidently excessive; and under the facts and circumstances of the case, she cannot be
legally declared completely exempt from criminal liability..

But the fact that defendant and appellant immediately and voluntarily and unconditionally surrendered to the barrio lieutenant in said
chapel, admitting having stabbed the deceased, immediately after the incident, and agreed to go to her house shortly thereafter and to
remain there subject to the order of the said barrio lieutenant, an agent of the authorities (United States vs. Fortaleza, 12 Phil., 472);
and the further fact that she had acted in the immediate vindication of a grave offense committed against her a few moments before,
and upon such provocation as to produce passion and obfuscation, or temporary loss of reason and self-control, should be considered
as mitigating circumstances in her favor (People vs. Parana, 64 Phil., 331; People vs. Sakam, 61 Phil., 27; United States vs. Arribas, 1
Phil., 86).

Defendant and appellant further claims that she had not intended to kill the deceased but merely wanted to punish his offending hand
with her knife, as shown by the fact that she inflicted upon him only one single wound. And this is another mitigating circumstance
which should be considered in her favor (United States vs. Brobst, 14 Phil., 310; United States vs. Diaz, 15 Phil., 123).

The claim of the prosecution, sustained by the learned trial court, that the offense was committed by the defendant and appellant, with
the aggravating circumstance that the killing was done in a place dedicated to religious worship, cannot be legally sustained; as there
is no evidence to show that the defendant and appellant had murder in her heart when she entered the chapel that fatal night. Avelina is
not a criminal by nature. She happened to kill under the greatest provocation. She is a God-fearing young woman, typical of our
country girls, who still possess the consolation of religious hope in a world where so many others have hopelessly lost the faith of their
elders and now drifting away they know not where.

The questions raised in the second and third assignments of error appear, therefore, to be well taken; and so is the first assignment of
error to a certain degree.

In the mind of the court, there is not the least doubt that, in stabbing to death the deceased Amado Capina, in the manner and form and
under the circumstances above indicated, the defendant and appellant committed the crime of homicide, with no aggravating
circumstance whatsoever, but with at least three mitigating circumstances of a qualified character to be considered in her favor; and, in
accordance with the provisions of article 69 of the Revised Penal Code, she is entitled to a reduction by one or two degrees in the
penalty to be imposed upon her. And considering the circumstances of the instant case, the defendant and appellant should be
accorded the most liberal consideration possible under the law (United States vs. Apego, 23 Phil., 391; United States vs. Rivera, 41
Phil., 472; People vs. Mercado, 43 Phil., 950)..

The law prescribes the penalty of reclusion temporal for the crime of homicide; and if it should be reduced by two degrees, the penalty
to be imposed in the instant case is that of prision correccional; and pursuant to the provisions of section 1 of Act No. 4103 of the
Philippine Legislature, known as the Indeterminate Sentence Law, herein defendant and appellant should be sentenced to an
indeterminate penalty ranging from arresto mayor in its medium degree, to prision correccional in its medium degree. Consequently,
with the modification of judgment appealed from, defendant and appellant Avelina Jaurigue is hereby sentenced to an indeterminate
penalty ranging from two months and one day of arresto mayor, as minimum, to two years, four months, and one day of prision
correccional, as maximum, with the accessory penalties prescribed by law, to indemnify the heirs of the deceased Amado Capina, in
the sum of P2,000, and to suffer the corresponding subsidiary imprisonment, not to exceed 1/3 of the principal penalty, in case of
insolvency, and to pay the costs. Defendant and appellant should also be given the benefit of 1/2 of her preventive imprisonment, and
the knife marked Exhibit B ordered confiscated. So ordered..
 6. People v. Narvaez, G.R. No. L-33466-67, 20 April 1983 (see also dissents of J. Abad Santos and J. Gutierrez, Jr.)

G.R. Nos. L-33466-67 April 20, 1983

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MAMERTO NARVAEZ, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.

MAKASIAR, J.:

This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch I, in Criminal Cases Nos. 1815 and 1816
for murder which, after a joint trial, resulted in the conviction of the accused in a decision rendered on September 8, 1970, with the
following pronouncement:

Thus, we have a crime of MURDER qualified by treachery with the aggravating circumstance of evident
premeditation offset by the mitigating circumstance of voluntary surrender. The proper penalty imposable, therefore,
is RECLUSION PERPETUA (Arts. 248 and 64, Revised Penal Code).

Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the crime of murder,

(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION PERPETUA, to indemnify the heirs of the
deceased Davis Q. Fleischer in the sum of P 12,000.00 as compensatory damages, P 10,000.00 as moral damages, P
2,000.00 as attorney's fees, the offended party having been represented by a private prosecutor, and to pay the costs;

(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION PERPETUA, to indemnify the heirs of the
deceased Flaviano Rubia in the sum of P12,000.00 as compensatory damages, P10,000.00 as moral damages,
P2,000.00 as attorney's fees, the offended party having been represent by a private prosecutor, and to pay the costs
(p. 48, rec.).

The facts are summarized in the People's brief, as follows:

At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Verano and Cesar Ibanez together with the
two deceased Davis Fleischer and Flaviano Rubia, were fencing the land of George Fleischer, father of deceased
Davis Fleischer. The place was in the boundary of the highway and the hacienda owned by George Fleischer. This is
located in the municipality of Maitum, South Cotabato. At the place of the fencing is the house and rice drier of
appellant Mamerto Narvaez (pp. 179-182, t.s.n., Pieza II). At that time, appellant was taking his rest, but when he
heard that the walls of his house were being chiselled, he arose and there he saw the fencing going on. If the fencing
would go on, appellant would be prevented from getting into his house and the bodega of his ricemill. So he
addressed the group, saying 'Pare, if possible you stop destroying my house and if possible we will talk it over what
is good,' addressing the deceased Rubia, who is appellant's compadre. The deceased Fleischer, however, answered:
'No, gademit, proceed, go ahead.' Appellant apparently lost his equilibrium and he got his gun and shot Fleischer,
hitting him. As Fleischer fell down, Rubia ran towards the jeep, and knowing there is a gun on the jeep, appellant
fired at Rubia, likewise hitting him (pp. 127-133, t.s.n., Defense transcript). Both Fleischer and Rubia died as a
result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9, Appellant's Brief, p.161, rec.).

It appears, however, that this incident is intertwined with the long drawn out legal battle between the Fleischer and Co., Inc. of which
deceased Fleischer was the secretary-treasurer and deceased Rubia the assistant manager, on the one hand, and the land settlers of
Cotabato, among whom was appellant.
From the available records of the related cases which had been brought to the Court of Appeals (CA-G.R. Nos. 28858-R and 50583-R)
and to this Court on certiorari (G.R. No. L-26757 and L-45504), WE take judicial notice of the following antecedent facts:

Appellant was among those persons from northern and central Luzon who went to Mindanao in 1937 and settled in Maitum, a former
sitio of Kiamba and now a separate municipality of South Cotabato. He established his residence therein, built his house, cultivated
the area, and was among those who petitioned then President Manuel L. Quezon to order the subdivision of the defunct Celebes
Plantation and nearby Kalaong Plantation totalling about 2,000 hectares, for distribution among the settlers.

Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American landowner in Negros Oriental, filed sales
application No. 21983 on June 3, 1937 over the same area formerly leased and later abandoned by Celebes Plantation Company,
covering 1,017.2234 hectares.

Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in 1941 but the survey report was not
submitted until 1946 because of the outbreak of the second world war. According to the survey, only 300 hectares Identified as Lots
Nos. 22, 26 and 38, Ps. 176 Kiamba, were set aside for Sales Application No. 21983, while the rest were subdivided into sublots of 5
to 6 hectares each to be distributed among the settlers (pp. 32-33, G.R. No. L-45504).

The 300 hectares set aside for the sales application of Fleischer and Company was declared open for disposition, appraised and
advertised for public auction. At the public auction held in Manila on August 14, 1948, Fleischer and Company was the only bidder
for P6,000.00. But because of protests from the settlers the corresponding award in its favor was held in abeyance, while an
investigator was sent by the Director of Lands to Kiamba in the person of Atty. Jose T. Gozon Atty. Gozon came back after ten days
with an amicable settlement signed by the representative of the settlers. This amicable settlement was later repudiated by the settlers,
but the Director of Lands, acting upon the report of Atty. Gozon, approved the same and ordered the formal award of the land in
question to Fleischer and Company. The settlers appealed to the Secretary of Agriculture and Natural Resources, who, however,
affirmed the decision in favor of the company.

On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of Cotabato which then consisted only of one
sala, for the purpose of annulling the order of the Secretary of Agriculture and Natural Resources which affirmed the order of the
Director of Lands awarding the contested land to the company. The settlers as plaintiffs, lost that case in view of the amicable
settlement which they had repudiated as resulting from threats and intimidation, deceit, misrepresentation and fraudulent machination
on the part of the company. They appealed to the Court of Appeals (CA-G.R. No. 28858-R) which likewise affirmed on August 16,
1965 the decision of the Court of First Instance in favor of the company.

This resulted in the ouster of the settlers by an order of the Court of First Instance dated September 24, 1966, from the land which they
had been occupying for about 30 years. Among those ejected was the appellant who, to avoid trouble, voluntarily dismantled his
house, built in 1947 at a cost of around P20,000.00, and transferred to his other house which he built in 1962 or 1963 near the
highway. The second house is not far from the site of the dismantled house. Its ground floor has a store operated by Mrs. June Talens
who was renting a portion thereof. He also transferred his store from his former residence to the house near the highway. Aside from
the store, he also had a rice mill located about 15 meters east of the house and a concrete pavement between the rice mill and the
house, which is used for drying grains and copra.

On November 14, 1966, appellant was among the settlers on whose behalf Jose V. Gamboa and other leaders filed Civil Case No. 755
in the Court of First Instance of Cotabato, Branch I. to obtain an injunction or annulment of the order of award with prayer for
preliminary injunction. During the pendency of this case, appellant on February 21, 1967 entered into a contract of lease with the
company whereby he agreed to lease an area of approximately 100 to 140 square meters of Lot No. 38 from the company (Exh. 9, p. 1,
Folder of Exhibits for Defense) for a consideration of P16.00 monthly. According to him, he signed the contract although the
ownership of the land was still uncertain, in order to avoid trouble, until the question of ownership could be decided. He never paid the
agreed rental, although he alleges that the milling job they did for Rubia was considered payment. On June 25, 1968, deceased
Fleischer wrote him a letter with the following tenor:

You have not paid six months rental to Fleischers & Co., Inc. for that portion of land in which your house and
ricemill are located as per agreement executed on February 21, 1967. You have not paid as as even after repeated
attempts of collection made by Mr. Flaviano Rubia and myself.

In view of the obvious fact that you do not comply with the agreement, I have no alternative but to terminate our
agreement on this date.

I am giving you six months to remove your house, ricemill, bodega, and water pitcher pumps from the land of
Fleischers & Co., Inc. This six- month period shall expire on December 31, 1966.

In the event the above constructions have not been removed within the six- month period, the company shall cause
their immediate demolition (Exhibit 10, p. 2, supra).

On August 21, 1968, both deceased, together with their laborers, commenced fencing Lot 38 by putting bamboo posts along the
property line parallel to the highway. Some posts were planted right on the concrete drier of appellant, thereby cutting diagonally
across its center (pp. 227-228, t.s.n., Vol. 2), with the last post just adjacent to appellant's house (p. 231, t.s.n., supra). The fence, when
finished, would have the effect of shutting off the accessibility to appellant's house and rice mill from the highway, since the door of
the same opens to the Fleischers' side. The fencing continued on that fateful day of August 22, 1968, with the installation of four
strands of barbed wire to the posts.

At about 2:30 p.m. on the said day, appellant who was taking a nap after working on his farm all morning, was awakened by some
noise as if the wall of his house was being chiselled. Getting up and looking out of the window, he found that one of the laborers of
Fleischer was indeed chiselling the wall of his house with a crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia was nailing the
barbed wire and deceased Fleischer was commanding his laborers. The jeep used by the deceased was parked on the highway. The rest
of the incident is narrated in the People's Brief as above-quoted. Appellant surrendered to the police thereafter, bringing with him
shotgun No. 1119576 and claiming he shot two persons (Exh. Pp. 31, Defense Exhibits).

Appellant now questions the propriety of his conviction, assigning the following errors:

First Assignment of Error: That the lower court erred in convicting defendant-appellant despite the fact that he acted
in defense of his person; and

Second Assignment of Error: That the court a quo also erred in convicting defendant-appellant although he acted in
defense of his rights (p. 20 of Appellant's Brief, p. 145, rec.).

The act of killing of the two deceased by appellant is not disputed. Appellant admitted having shot them from the window of his house
with the shotgun which he surrendered to the police authorities. He claims, however, that he did so in defense of his person and of his
rights, and therefore he should be exempt from criminal liability.

Defense of one's person or rights is treated as a justifying circumstance under Art. 11, par. 1 of the Revised Penal Code, but in order
for it to be appreciated, the following requisites must occur:

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself (Art. 11, par. 1, Revised Penal
Code, as amended).

The aggression referred to by appellant is the angry utterance by deceased Fleischer of the following words: "Hindi, sigue, gademit,
avante", in answer to his request addressed to his compadre, the deceased Rubia, when he said, "Pare, hinto mona ninyo at pag-usapan
natin kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6). This was in reaction to his having been awakened to see the wall of his house
being chiselled. The verbal exchange took place while the two deceased were on the ground doing the fencing and the appellant was
up in his house looking out of his window (pp. 225-227, supra). According to appellant, Fleischer's remarks caused this reaction in
him: "As if, I lost my senses and unknowingly I took the gun on the bed and unknowingly also I shot Mr. Fleischer, without realizing
it, I shot Mr. Fleischer" (p. 132, supra). As for the shooting of Rubia, appellant testified:

When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing the shot, Mr. Rubia looked at Mr.
Fleischer and when Mr. Fleischer fell down, Mr. Rubia ran towards the jeep and knowing that there was a firearm in
the jeep and thinking that if he will take that firearm he will kill me, I shot at him (p. 132, supra, Emphasis
supplied).

The foregoing statements of appellant were never controverted by the prosecution. They claim, however, that the deceased were in
lawful exercise of their rights of ownership over the land in question, when they did the fencing that sealed off appellant's access to
the highway.

A review of the circumstances prior to the shooting as borne by the evidence reveals that five persons, consisting of the deceased and
their three laborers, were doing the fencing and chiselling of the walls of appellant's house. The fence they were putting up was made
of bamboo posts to which were being nailed strands of barbed wire in several layers. Obviously, they were using tools which could be
lethal weapons, such as nail and hammer, bolo or bamboo cutter, pliers, crowbar, and other necessary gadgets. Besides, it was not
disputed that the jeep which they used in going to the place was parked just a few steps away, and in it there was a gun leaning near
the steering wheel. When the appellant woke up to the sound of the chiselling on his walls, his first reaction was to look out of the
window. Then he saw the damage being done to his house, compounded by the fact that his house and rice mill will be shut off from
the highway by the fence once it is finished. He therefore appealed to his compadre, the deceased Rubia, to stop what they were doing
and to talk things over with him. But deceased Fleischer answered angrily with 'gademit' and directed his men to proceed with what
they were doing.

The actuation of deceased Fleischer in angrily ordering the continuance of the fencing would have resulted in the further chiselling of
the walls of appellant's house as well as the closure of the access to and from his house and rice mill-which were not only imminent
but were actually in progress. There is no question, therefore, that there was aggression on the part of the victims: Fleischer was
ordering, and Rubia was actually participating in the fencing. This was indeed aggression, not on the person of appellant, but on his
property rights.

The question is, was the aggression unlawful or lawful? Did the victims have a right to fence off the contested property, to destroy
appellant's house and to shut off his ingress and egress to his residence and the highway?

Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his land or tenements.

However, at the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of the order of award to Fleischer and
Company was still pending in the Court of First Instance of Cotabato. The parties could not have known that the case would be
dismissed over a year after the incident on August 22, 1968, as it was dismissed on January 23, 1970 on ground of res judicata, in
view of the dismissal in 1965 (by the Court of Appeals) of Civil Case No. 240 filed in 1950 for the annulment of the award to the
company, between the same parties, which the company won by virtue of the compromise agreement in spite of the subsequent
repudiation by the settlers of said compromise agreement; and that such 1970 dismissal also carried the dismissal of the supplemental
petition filed by the Republic of the Philippines on November 28, 1968 to annul the sales patent and to cancel the corresponding
certificate of title issued to the company, on the ground that the Director of Lands had no authority to conduct the sale due to his
failure to comply with the mandatory requirements for publication. The dismissal of the government's supplemental petition was
premised on the ground that after its filing on November 28, 1968, nothing more was done by the petitioner Republic of the
Philippines except to adopt all the evidence and arguments of plaintiffs with whom it joined as parties-plaintiffs.

Hence, it is reasonable to believe that appellant was indeed hoping for a favorable judgment in Civil Case No. 755 filed on November
14, 1966 and his execution of the contract of lease on February 21, 1967 was just to avoid trouble. This was explained by him during
cross-examination on January 21, 1970, thus:

It happened this way: we talked it over with my Mrs. that we better rent the place because even though we do not
know who really owns this portion to avoid trouble. To avoid trouble we better pay while waiting for the case
because at that time, it was not known who is the right owner of the place. So we decided until things will clear up
and determine who is really the owner, we decided to pay rentals (p. 169, t.s.n., Vol.6).

In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2, Defense Exhibits) within which to vacate the land. He
should have allowed appellant the peaceful enjoyment of his properties up to that time, instead of chiselling the walls of his house and
closing appellant's entrance and exit to the highway.

The following provisions of the Civil Code of the Philippines are in point:

Art. 536. In no case may possession be acquired through force or intimidation as long as there is a possessor who
objects thereto. He who believes that he has an action or a right to deprive another of the holding of a thing must
invoke the aid of the competent court, if the holder should refuse to deliver the thing.

Art. 539. Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be
protected in or restored to said possession by the means established by the laws and the Rules of Court (Articles 536
and 539, Civil Code of the Philippines).

Conformably to the foregoing provisions, the deceased had no right to destroy or cause damage to appellant's house, nor to close his
accessibility to the highway while he was pleading with them to stop and talk things over with him. The assault on appellant's
property, therefore, amounts to unlawful aggression as contemplated by law.

Illegal aggression is equivalent to assault or at least threatened assault of immediate and imminent kind (People vs.
Encomiendas, 46 SCRA 522).

In the case at bar, there was an actual physical invasion of appellant's property which he had the right to resist, pursuant to Art. 429 of
the Civil Code of the Philippines which provides:

Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and
disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an
actual or threatened unlawful physical invasion or usurpation of his property (Emphasis supplied).

The reasonableness of the resistance is also a requirement of the justifying circumstance of self-defense or defense of one's rights
under paragraph 1 of Article 11, Revised Penal Code. When the appellant fired his shotgun from his window, killing his two victims,
his resistance was disproportionate to the attack.

WE find, however, that the third element of defense of property is present, i.e., lack of sufficient provocation on the part of appellant
who was defending his property. As a matter of fact, there was no provocation at all on his part, since he was asleep at first and was
only awakened by the noise produced by the victims and their laborers. His plea for the deceased and their men to stop and talk things
over with him was no provocation at all.

Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the elements for justification are present. He
should therefore be held responsible for the death of his victims, but he could be credited with the special mitigating circumstance of
incomplete defense, pursuant to paragraph 6, Article 13 of the Revised Penal Code.

The crime committed is homicide on two counts. The qualifying circumstance of treachery cannot be appreciated in this case because
of the presence of provocation on the part of the deceased. As WE held earlier in People vs. Manlapaz (55 SCRA 598), the element of
a sudden unprovoked attack is therefore lacking.

Moreover, in order to appreciate alevosia, "it must clearly appear that the method of assault adopted by the aggressor was deliberately
chosen with a special view to the accomplishment of the act without risk to the assailant from any defense that the party assailed might
have made. This cannot be said of a situation where the slayer acted instantaneously ..." (People vs. Cañete, 44 Phil. 481).

WE likewise find the aggravating (qualifying) circumstance of evident premeditation not sufficiently established. The only evidence
presented to prove this circumstance was the testimony of Crisanto Ibañez, 37 years old, married, resident of Maitum, South Cotabato,
and a laborer of Fleischer and Company, which may be summarized as follows:

On August 20, 1968 (two days before the incident) at about 7:00 A.M., he was drying corn near the house of Mr.
and Mrs. Mamerto Narvaez at the crossing, Maitum, South Cotabato, when the accused and his wife talked to him.
Mrs. Narvaez asked him to help them, as he was working in the hacienda. She further told him that if they fenced
their house, there is a head that will be broken. Mamerto Narvaez added 'Noy, it is better that you will tell Mr.
Fleischer because there will be nobody who will break his head but I will be the one.' He relayed this to Mr.
Flaviano Rubia, but the latter told him not to believe as they were only Idle threats designed to get him out of the
hacienda (pp. 297-303, t.s.n., Vol. 2).
This single evidence is not sufficient to warrant appreciation of the aggravating circumstance of evident premeditation. As WE have
consistently held, there must be "direct evidence of the planning or preparation to kill the victim, .... it is not enough that premeditation
be suspected or surmised, but the criminal intent must be evidenced by notorious outward acts evincing the determination to commit
the crime" (People vs. Ordioles, 42 SCRA 238). Besides, there must be a "showing" that the accused premeditated the killing; that the
culprit clung to their (his) premeditated act; and that there was sufficient interval between the premeditation and the execution of the
crime to allow them (him) to reflect upon the consequences of the act" (People vs. Gida, 102 SCRA 70).

Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the deceased Davis Fleischer, neutralizes his credibility.

Since in the case at bar, there was no direct evidence of the planning or preparation to kill the victims nor that the accused
premeditated the killing, and clung to his premeditated act, the trial court's conclusion as to the presence of such circumstance may not
be endorsed.

Evident premeditation is further negated by appellant pleading with the victims to stop the fencing and destroying his house and to
talk things over just before the shooting.

But the trial court has properly appreciated the presence of the mitigating circumstance of voluntary surrender, it appearing that
appellant surrendered to the authorities soon after the shooting.

Likewise, We find that passion and obfuscation attended the commission of the crime. The appellant awoke to find his house being
damaged and its accessibility to the highway as well as of his rice mill bodega being closed. Not only was his house being unlawfully
violated; his business was also in danger of closing down for lack of access to the highway. These circumstances, coming so near to
the time when his first house was dismantled, thus forcing him to transfer to his only remaining house, must have so aggravated his
obfuscation that he lost momentarily all reason causing him to reach for his shotgun and fire at the victims in defense of his rights.
Considering the antecedent facts of this case, where appellant had thirty years earlier migrated to this so-called "land of promise" with
dreams and hopes of relative prosperity and tranquility, only to find his castle crumbling at the hands of the deceased, his
dispassionate plea going unheeded-all these could be too much for any man-he should be credited with this mitigating circumstance.

Consequently, appellant is guilty of two crimes of homicide only, the killing not being attended by any qualifying nor aggravating
circumstance, but extenuated by the privileged mitigating circumstance of incomplete defense-in view of the presence of unlawful
aggression on the part of the victims and lack of sufficient provocation on the part of the appellant-and by two generic mitigating
circumstance of voluntary surrender and passion and obfuscation.

Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusion temporal. Pursuant to Article 69, supra, the
penalty lower by one or two degrees shall be imposed if the deed is not wholly excusable by reason of the lack of some of the
conditions required to justify the same. Considering that the majority of the requirements for defense of property are present, the
penalty may be lowered by two degrees, i.e., to prision correccional And under paragraph 5 of Article 64, the same may further be
reduced by one degree, i.e., arresto mayor, because of the presence of two mitigating circumstances and no aggravating circumstance.

The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan American World Airways (43 SCRA 397), the
award for moral damages was reduced because the plaintiff contributed to the gravity of defendant's reaction. In the case at bar, the
victims not only contributed but they actually provoked the attack by damaging appellant's properties and business. Considering
appellant's standing in the community, being married to a municipal councilor, the victims' actuations were apparently designed to
humiliate him and destroy his reputation. The records disclose that his wife, councilor Feliza Narvaez, was also charged in these two
cases and detained without bail despite the absence of evidence linking her to the killings. She was dropped as a defendant only upon
motion of the prosecution dated October 31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on November 4, 1968 (p.
58, CFI rec. of Criminal Case No. 1815).

Moreover, these cases arose out of an inordinate desire on the part of Fleischer and Company, despite its extensive landholdings in a
Central Visayan province, to extend its accumulation of public lands to the resettlement areas of Cotabato. Since it had the capability-
financial and otherwise-to carry out its land accumulation scheme, the lowly settlers, who uprooted their families from their native soil
in Luzon to take advantage of the government's resettlement program, but had no sufficient means to fight the big landowners, were
the ones prejudiced. Thus, the moral and material suffering of appellant and his family deserves leniency as to his civil liability.

Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prision correccional or arrests mayor and fine who
has no property with which to meet his civil liabilities to serve a subsidiary imprisonment at the rate of one (1) day for each P 2.50.
However, the amendment introduced by Republic Act No. 5465 on April 21, 1969 made the provisions of Art. 39 applicable to fines
only and not to reparation of the damage caused, indemnification of consequential damages and costs of proceedings. Considering that
Republic Act 5465 is favorable to the accused who is not a habitual delinquent, it may be given retroactive effect pursuant to Article
22 of the Revised Penal Code.

WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONLY TWO (2) HOMICIDES,
MITIGATED BY THE PRIVILEGED EXTENUATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL AS
BY TWO (2) GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND OBFUSCATION, WITHOUT
ANY AGGRAVATING CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN IMPRISONMENT OF
FOUR (4) MONTHS OF ARRESTO MAYOR, TO INDEMNIFY EACH GROUP OF HEIRS OF DAVIS FLEISCHER AND OF
FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS, WITHOUT SUBSIDIARY IMPRISONMENT
AND WITHOUT ANY AWARD FOR MORAL DAMAGES AND ATTORNEY'S FEES.

CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST FOURTEEN (14) YEARS NOW SINCE
HIS VOLUNTARY SURRENDER ON AUGUST 22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS.

SO ORDERED.
Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, De Castro, Melencio-Herrera, Escolin Vasquez and Relova, JJ., concur.

Aquino, J., is on leave.

Plana, J., in the result.

Separate Opinions

ABAD SANTOS, J., dissenting:

I dissent. The self-defense of the Revised Penal Code refers to unlawful aggression on persons, not property Plana, J., in the result.

GUTIERREZ, JR., J., dissenting:

While I agree with the order to release the appellant, I am constrained to dissent in part. It is true that Art. 429, Civil Code of the
Philippines, provides that the owner or legal possessor of a thing may use such force as may be reasonably necessary to repel or
prevent an actual or threatened unlawful physical invasion or usurpation of his property. It seems to me, however, that an attack on the
person defending his property is an indispensable element where an accused pleads self-defense but what is basically defended is only
property.

Defense of property is not of such importance as the right to life and defense of property can only be invoked when it is coupled with
some form of attack on the person of one entrusted with said property. The defense of property, whether complete or incomplete, to be
available in prosecutions for murder or homicide must be coupled with an attack by the one getting the property on the person
defending it.

In the case now before Us, there is absolutely no evidence that an attack was attempted, much less made upon the person of appellant.
The mere utterance "No, gademit proceed, go ahead" is not the unlawful aggression which entitles appellant to the pela of self-
defense. I agree with the majority opinion that the crime is homicide but without any privileged mitigating circumstance.

Therefore, since the appellant is guilty beyond reasonable doubt of two (2) homicides, mitigated by the two generic mitigating
circumstances of voluntary surrender and obfuscation, without any aggravating circumstance, maximum the sentence the appellant
should have served was prision mayor plus the indemnification to each group of heirs of Davis Fleischer and of Flamiano Rubia of the
sum of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment, but without any award for moral damages and attorney's
fees.

Considering that appellant has been under detention for almost fourteen (14) years now since August 22, 1968, he has served the
penalty and should be released.

Separate Opinions

ABAD SANTOS, J., dissenting:

I dissent. The self-defense of the Revised Penal Code refers to unlawful aggression on persons, not property Plana, J., in the result.

GUTIERREZ, JR., J., dissenting:

While I agree with the order to release the appellant, I am constrained to dissent in part. It is true that Art. 429, Civil Code of the
Philippines, provides that the owner or legal possessor of a thing may use such force as may be reasonably necessary to repel or
prevent an actual or threatened unlawful physical invasion or usurpation of his property. It seems to me, however, that an attack on the
person defending his property is an indispensable element where an accused pleads self-defense but what is basically defended is only
property.

Defense of property is not of such importance as the right to life and defense of property can only be invoked when it is coupled with
some form of attack on the person of one entrusted with said property. The defense of property, whether complete or incomplete, to be
available in prosecutions for murder or homicide must be coupled with an attack by the one getting the property on the person
defending it.

In the case now before Us, there is absolutely no evidence that an attack was attempted, much less made upon the person of appellant.
The mere utterance "No, gademit proceed, go ahead" is not the unlawful aggression which entitles appellant to the pela of self-
defense. I agree with the majority opinion that the crime is homicide but without any privileged mitigating circumstance.

Therefore, since the appellant is guilty beyond reasonable doubt of two (2) homicides, mitigated by the two generic mitigating
circumstances of voluntary surrender and obfuscation, without any aggravating circumstance, maximum the sentence the appellant
should have served was prision mayor plus the indemnification to each group of heirs of Davis Fleischer and of Flamiano Rubia of the
sum of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment, but without any award for moral damages and attorney's
fees.
Considering that appellant has been under detention for almost fourteen (14) years now since August 22, 1968, he has served the
penalty and should be released.

7. Sabang v. People, G.R. No. 168818

G.R. No. 168818             March 9, 2007

NILO SABANG, Petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

TINGA, J.:

On January 17, 1997, in the midst of a drinking spree on the eve of the fiesta in Liloan, Ormoc City, an intoxicated Nicanor Butad
uttered the ominous words "I will shoot you" to Randy Sabang, to the horror of young Sabang's father, Nilo, and the other onlookers.
Within moments, Butad himself lay dead from four gunshot wounds on his body. Nilo Sabang, petitioner herein, who was charged
with and later convicted for the homicide, admits to the killing of Butad, but claims

that the shooting was accidental and done as a means of defending his son. An array of witnesses for the prosecution and the defense
provides a competing set of particulars as to the shooting. Ultimately, the prosecution’s version, supported by the physical evidence,
stands out as the truth.

This much is admitted. At around 6:30 p.m. on that fateful night, petitioner and Butad were having drinks together with spouses Cruz
and Andresa Villamor outside the store of Melania Sombilon in Sitio Landing, Barangay Liloan, Ormoc City. 1 Butad, a civilian agent
with the Philippine National Police, was then armed with a .38-caliber revolver which was tucked in his holster. In the midst of the
drinking spree, Randy Sabang suddenly and unexpectedly appeared before the group. His appearance triggered a negative reaction
from Butad, who then uttered the words "I will shoot you" to Randy Sabang.2

Certain circumstances attaching to this evident threat are disputed, as are the events that consequently followed. What is certain is that
shortly afterwards, Butad lay dead, having sustained four (4) gunshot wounds from his own revolver. Petitioner appears to have fled
but voluntarily surrendered thereafter, turning over the revolver as he surrendered. 3

Photographs of Butad as he lay dead on the scene were presented in evidence, 4 as was the official report on his autopsy, prepared by
the City Health Office of Ormoc City. The autopsy report5 indicated the following findings:

GENERAL SURVEY:

Examined a fairly nourished/fairly developed male cadaver with approximate height of 165 cm & weight of 65 kg in state of rigor
mortis.

FINDINGS:

1. Bullet wound 1.0 x 0.5 cm at anterior chest wall, 14 cm from midline, right, along 3rd intercostal space anterior axillary
line penetrating thoracic cavity lacerating upper lobe of right lung.

2. Bullet wound 0.7 x 0.5 cm at 4th intercostal space mid-axillary line, right, penetrating thoracic cavity lacerating upper lobe
of right lung.

3. Bullet wound 1.5 x 0.7 cm at distal 3rd lateral aspect of right arm injuring skin & muscles.

4. Bullet wound 0.7 cm x 0.7 cm at mid vertebral column fracturing spine of 8th thoracic vertebra.

CAUSE OF DEATH:

Hypovolemia 2° to multiple bullet wound.

During arraignment, petitioner pleaded innocence, but during the presentation of the evidence for the defense, he claimed to have
acted in defense of a relative. Petitioner and four (4) other witnesses testified for the defense. The following facts were sought to be
established by petitioner:

By the time Butad had joined what was to be his last drinking spree, he was already in a belligerent mood. Earlier that afternoon, he

had been chasing after Ramil Perez when the latter demanded payment for a bet Butad had lost over a cockfight. 6

The chase was witnessed by Celso Pepito, who would testify for the defense. 7 As to the shooting itself, testifying for the defense were
petitioner himself, the storekeeper Sombilon, and an eyewitness, Laurito Caparoso, who was situated right across the road when the
shooting occurred.

Sombilon testified that when Butad told Randy Sabang, "I will shoot you," the deceased already had his revolver aimed at Randy. 8 At
this point, Andresa Villamor, a niece of the deceased, told Butad, "Please don't[,] tiyo, he's the son of Nilo." 9 Petitioner and Caparoso
also testified that at that time, Butad had his revolver pointed at Randy. 10 Petitioner claimed that he then grabbed the arm of Butad,
attempting to twist it toward his body and away from his son. As they were grappling and the revolver was pointed towards the body
of Butad, petitioner claimed he heard gunshots, and only after the shots were fired was he able to "take the gun" from
Butad.11 Petitioner’s account is substantially corroborated by Caparoso.12

This version of the shooting, however, stands in sharp contrast to that presented by the prosecution.

Natividad Payud, an eyewitness to the incident, testified that while the group of the deceased Butad, petitioner, and the spouses Cruz
and Andresa Villamor was having a drinking spree, Randy suddenly entered the scene. Butad, appearing surprised, thrust a glass of
Tanduay near Randy’s mouth and uttered the words, "I will shoot you." Payud is certain that at this point, Butad was not holding any
gun.13 Andresa Villamor, another eyewitness to the incident, confirmed Payud’s testimony that Butad was holding a glass and not a
gun when he uttered those words.14

Petitioner reacted to Butad’s statement saying, "Just try to shoot my child because I’ll never fight for him because he is a spoiled
brat."15 Andresa Villamor then chided Butad and said, "Do not say that tiyo[,] because it’s [sic] the son of Nilo Sabang." 16

Unexpectedly, a person appeared on the scene and punched Butad causing the latter to fall down lying partially on his back. Petitioner,
who was then sitting across Butad, stood up and pulled the gun tucked in Butad’s waist. He pointed the gun at Butad and fired a shot
at the latter’s chest.17 Payud and Andresa Villamor both saw petitioner fire two (2) more shots near Butad’s chest.18

In a Judgment19 dated November 22, 1999, the trial court convicted petitioner principally on the strength of the testimony of Dr.
Edilberto P. Calipayan, the physician who conducted the post mortem examination of Butad’s body, to the effect that the absence of
powder burns indicates that the gunshots were fired at a distance of more than 10 inches from the victim’s body and not close range as
claimed by petitioner.20

The Court of Appeals affirmed petitioner’s conviction in a Decision 21 dated August 16, 2004 and denied reconsideration in a
Resolution22 dated July 6, 2005.

In this Petition,23 petitioner prays for his acquittal contending that he acted in defense of his son, a justifying circumstance under Art.
1124 of the Revised Penal Code. He claims that Butad’s act of aiming a gun at his son while uttering the words "I will shoot you" was
an aggression of the most imminent kind which prompted him to try to wrestle the gun from Butad leading to the accidental firing of
the fatal shots.

Petitioner theorizes that the fact that Butad was then fully clothed could have accounted for the absence of powder burns on Butad’s
body. He disputes the trial court’s finding that the wounds would have looked oblique had the shots been fired during a struggle,
claiming that round entrance wounds could likewise be produced in near contact fire.

He further avers that Payud was not really an eyewitness to the event, pointing to the testimony of Benjamin Mahusay that he and
Payud were already out of Sitio Landing and were heading home when they heard the gunshots. Likewise, Andresa Villamor’s
testimony is allegedly confined to seeing Butad sprawled on the ground.

The Office of the Solicitor General insists on petitioner’s conviction but asks that the award of moral damages be reduced from
₱100,000.00 to ₱50,000.00.25

We shall first resolve the question of whether petitioner’s insistence on the justifying circumstance of defense of relative deserves
merit.

In order to successfully claim that he acted in defense of a relative, the accused must prove the concurrence of the following
requisites: (1) unlawful aggression on the part of the person killed or injured; (2) reasonable necessity of the means employed to
prevent or repel the unlawful aggression; and (3) the person defending the relative had no part in provoking the assailant, should any
provocation been given by the relative attacked.26 Unlawful aggression is a

primary and indispensable requisite without which defense of relative, whether complete or otherwise, cannot be validly invoked. 27

It is well-settled in this jurisdiction that once an accused has admitted that he inflicted the fatal injuries on the deceased, it is
incumbent upon him in order to avoid criminal liability, to prove the justifying circumstance claimed by him with clear, satisfactory
and convincing evidence. He cannot rely on the weakness of the prosecution but on the strength of his own evidence, "for even if the
evidence of the prosecution were weak it could not be disbelieved after the accused himself had admitted the killing." Thus, petitioner
must establish with clear and convincing evidence that the killing was justified, and that he incurred no criminal liability therefor. 28

Unlawful aggression must be clearly established by the evidence. In this case, there is a divergence in the testimonies of the
prosecution and defense witnesses as to whether Butad aimed a gun at petitioner’s son as he uttered the words "I will shoot you." With
this conflict emerges the question of whether petitioner sensed an imminent threat to his son’s life. Payud unequivocally testified that
petitioner even dismissed Butad’s utterance saying, "Just try to shoot my child because I’ll never fight for him because he is a spoiled
brat."

This indicates to us that petitioner did not consider Butad’s words a threat at all.

These circumstances led the trial court to conclude that there was no unlawful aggression on the part of Butad which could have
precipitated petitioner’s actions. This finding, affirmed by the Court of Appeals, is conclusive on the Court barring any showing of
any arbitrariness or oversight of material facts that could change the result.29

Furthermore, the presence of four (4) gunshot wounds on Butad’s body negates the claim that the killing was justified but instead
indicates a determined effort to kill him. Even assuming that it was Butad who initiated the attack, the fact that petitioner was able to
wrest the gun from him signifies that the aggression which Butad had started already ceased. Petitioner became the unlawful aggressor
when he continued to shoot Butad even as he already lay defenseless on the ground.30

On this point, the defense’s own witness, Caparoso, said in his Counter Affidavit 31 and during direct examination that after the first
shot was fired, he saw petitioner take possession of the gun as Butad released his hold of it. It was after petitioner already had the gun
that Caparoso heard more gunshots. 32 Even petitioner admitted that he had an easy time twisting the hand with which Butad was
supposedly holding his revolver because the latter was already very drunk having started drinking before noon that day.33

Another crucial point to consider is that the prosecution’s theory is consistent with the physical evidence.

The distance from which a shot is fired affects the nature and extent of the injury caused on the victim. In close range fire, the injury is
not only due to the missile but also due to the pressure of the expanded gases, flame and other solid products of combustion. In

contrast, distant fire usually produces the characteristic effect of the bullet alone. 34 A shot fired from a distance of more than 60 cm or
about two (2) feet does not produce the burning, smudging or tattooing typically present in loose contact or near fire, short range fire
and medium range fire.35

Powder burns is a term commonly used by physicians whenever there is blackening of the margin at the entrance of the gunshot
wound. The blackening is due to smoke smudging, gunpowder tattooing and, to a certain extent, burning of the wound margin. 36 As
found by the medico-legal officer in this case, Butad’s body did not have any powder burns. In response to the court’s queries, Dr.
Calipayan testified:

COURT’S QUESTIONS

Q Being an expert, is it a scientific fact that every gun burst within ten (10) inches distance as you said, is it always a fact that there is
presence of powder burns?

A It is always a fact, if the caliber of the firearm is higher or I can say, may be .22 caliber as well as there is a gun powder that burst. If
it is fired about less than ten (10) inches from the surface of the skin, it will always cause powder burns.

Q And in this case, you cannot indicate the presence of powder burns?

A Because I did not find any.37

The fact that there were no powder burns on Butad’s body indicates that the shots were fired at a distance of more than two (2) feet
and not at close range as the defense suggests. Moreover, Butad sustained four (4) gunshot wounds, three (3) of which were in the
chest area, circumstances which are inconsistent with the defense’s theory of accidental firing.38

On the credibility of the prosecution’s witnesses, the defense questions Payud’s testimony averring that its witness, Benjamin
Mahusay, testified that he and Payud were already on their way home

when they heard the gunshots. According to Mahusay, he attended a cockfight which ended at 5 o’clock in the afternoon of January
17, 1997. He went home afterwards and claimed to have met Payud on the way home at around 5 in the afternoon. 39 It was at this time
that he and Payud supposedly heard gunshots.

Mahusay’s account, however, conflicts with the established fact that Butad was shot to death at around 6:30 that night. His testimony
all the more loses significance in the face of Payud’s compelling testimony that she went back to Sitio Landing to fetch her children
and witnessed the killing.40

Moreover, it is not true, as the defense insists, that Andresa Villamor did not witness the actual shooting. She unequivocally testified
that she turned back and saw Sabang take the pistol from Butad and point the gun at the latter. She instinctively covered her eyes
shouting, "Do not shoot my uncle!" She uncovered her eyes after hearing the first gunshot, saw petitioner still pointing the gun at
Butad, and watched as petitioner shot Butad two (2) more times. 41
In the final analysis, petitioner failed to demonstrate any reason to disturb the findings and conclusions of the trial court and the Court
of Appeals. His conviction of the crime of homicide is certain. Under Art. 249 of the Revised Penal Code, homicide is punished
by reclusion temporal. There being one (1) mitigating circumstance of voluntary surrender, the penalty shall be imposed in its
minimum period.42 Applying the benefits of the Indeterminate Sentence Law, the trial court correctly imposed an indeterminate
penalty ranging from eight (8) years and one (1) day of prision mayor as minimum to twelve (12) years and one (1) day of reclusion
temporal as maximum.

As regards the matter of damages, we affirm the award of civil indemnity in the amount of ₱50,000.00 for the heirs of Butad in line
with recent jurisprudence. Civil indemnity is mandatory and is granted to the heirs of the victim without need of proof other than the
commission of the crime.43 We also affirm the award of ₱180,000.00 representing loss of earning capacity at a reasonable life
expectancy of three (3) years considering that Butad was already 67 years old at the time of the incident. 44 Likewise affirmed are the
award of ₱50,000.00 as burial expenses duly proven, attorney’s fees of ₱40,000.00, and appearance fee of ₱1,000.00 per hearing.

We, however, agree with the Office of the Solicitor General that consistent with pertinent jurisprudence, the award of moral damages
should be reduced from ₱100,000.00 to ₱50,000.00.45 Finally, in the absence of any aggravating circumstance, the trial court correctly
withheld the award of exemplary damages.46

WHEREFORE, the instant petition is DENIED for lack of merit. The assailed Decision of the Court of Appeals dated August 16, 2004
and its Resolution dated July 6, 2005, affirming the Judgment rendered by the Regional Trial Court dated November 26,

1999, are AFFIRMED with the MODIFICATION that the award of moral damages is reduced to ₱50,000.00. Costs against petitioner.

SO ORDERED.

8. People v. Dagani, G.R. No. 153875

G.R. No. 153875 August 16, 2006

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ROLANDO DAGANI y REYES and OTELLO SANTIANO Y LEONIDA, Accused-Appellants.

DECISION

AUSTRIA-MARTINEZ, J.:

For review before the Court is the Decision dated June 20, 2002 1 of the Court of Appeals (CA) which affirmed the Decision of the
Regional Trial Court of the City of Manila, Branch 12 (RTC), dated February 18, 1993, in Criminal Case No. 89-77467, finding the
accused-appellants Otello Santiano y Leonida (Santiano) and Rolando Dagani y Reyes (Dagani) guilty of the crime of Murder.

The accusatory portion of the Information reads:

That on or about September 11, 1989, in the City of Manila, Philippines, the said accused conspiring and confederating together and
mutually helping each other did then and there, willfully, unlawfully and feloniously, with intent to kill, evident premeditation and
treachery, attack, assault and use of personal violence upon one ERNESTO JAVIER Y FELIX by then and there shooting him with
a .38 caliber revolver, thereby inflicting upon the said ERNESTO JAVIER Y FELIX mortal gunshot wounds which were the direct
and immediate cause of his death thereafter.

CONTRARY TO LAW.2

Upon arraignment, the appellants pleaded not guilty. Trial ensued where the prosecution adduced evidence to establish the following:

At about 4:45 in the afternoon of September 11, 1989, a group composed of Ernesto Javier (Javier), Lincoln Miran (Miran), and two
other individuals had been drinking at the canteen located inside the compound of the Philippine National Railways (PNR) along C.M.
Recto Avenue, Tondo, Manila. All of a sudden, appellants, who were security officers of the PNR and covered by the Civil Service
Rules and Regulations, entered the canteen and approached the group. Appellant Dagani shoved Miran, causing the latter to fall from
his chair. Dagani then held Javier while Santiano shot Javier twice at his left side, killing the latter.

The defense proceeded to prove their version of the facts:

Appellants testified that they were ordered by their desk officer to investigate a commotion at the canteen. Upon reaching the place,
Santiano ordered his co-accused, Dagani, to enter, while the former waited outside.

Dagani approached Javier who had been striking a bottle of beer on the table. Javier then pulled out a .22 caliber revolver and
attempted to fire at Dagani, but the gun failed to go off. Then suddenly, while outside the canteen, Santiano heard gunfire and, from
his vantage point, he saw Javier and Dagani grappling for a .22 caliber gun which belonged to Javier. During the course of the
struggle, the gun went off, forcing Santiano to fire a warning shot. He heard Javier’s gun fire again, so he decided to rush into the
canteen. Santiano then shot Javier from a distance of less than four meters.

Appellants invoked the justifying circumstances of self-defense and lawful performance of official duty as PNR security officers.
They also argued that the prosecution failed to establish treachery and conspiracy.
The RTC rendered its Decision, the dispositive portion of which reads:

WHEREFORE, finding both accused Otello Santiano y Leonida and Rolando Dagani y Reyes guilty beyond reasonable doubt of the
crime of Murder defined and punished under Art. 248, RPC, with the presence of the mitigating circumstance of voluntary surrender
and granting them the benefit of [the] Indeterminate Sentence Law, both accused are hereby sentenced to each suffer an Indeterminate
prison term of TEN (10) YEARS and ONE (1) DAY of prision mayor as minimum, to EIGHTEEN (18) YEARS and ONE (1) DAY
of reclusion temporal x x x.

Both accused are hereby ordered to indemnify the heirs of the victim the sum of P50,000.00 as death indemnity, the sum
of P31,845.00 as funeral and burial expenses, the sum of

P30,000.00 as and for [sic] attorney’s fees and the further sum of P1,000.00 per appearance of counsel.

Both accused shall be credited with the full extent of their preventive imprisonment. Both accused are hereby committed to the
Director, National Penitentiary, Muntinlupa, Metro Manila for service of Sentence.

SO ORDERED.3

In brief, the RTC held that appellants failed to prove that Javier attempted to squeeze the trigger of the .22 caliber gun when he
pointed it at Dagani; that during the course of the struggle for the possession of the .22 caliber gun, the danger to the life of the
accused ceased to be imminent; that in grappling for the weapon, Dagani "controlled" the hands of Javier and pushed them away from
his body; that the appellants failed to produce the two empty shells as physical evidence of the gunfire allegedly caused by Javier; that
no points of entry or bullet markings on the walls of the canteen were shown; that, in light of these findings, no unlawful aggression
was present on the part of the victim; that the appellants failed to prove that they were on official duty at the time of the incidence;
that, since it was not established that Javier actually fired his gun, the injury inflicted upon him cannot be regarded as a necessary
consequence of the due performance of an official duty; that the appellants were acting in conspiracy; that the qualifying circumstance
of treachery attended the killing, considering that Javier had been shot while his hands were being held by Dagani and as his body was
out of balance and about to fall; and that the mitigating circumstance of voluntary surrender should be appreciated in favor of the
appellants.

The appellants appealed to the CA and assigned the following errors:

THE LOWER COURT GRAVELY ERRED IN NOT APPRECIATING SELF DEFENSE ON THE PART OF THE ACCUSED.

II

THE LOWER COURT ERRED WHEN IT FAILED TO CONSIDER THE FACT THAT THE ACCUSED-APPELLANTS WERE
IN LAWFUL PERFORMANCE OF AN OFFICIAL DUTY.

III

THE LOWER COURT GRAVELY AND SERIOUSLY ERRED IN RULING THAT THERE WAS CONSPIRACY.

IV

THE LOWER COURT GRAVELY ERRED IN FINDING THAT THE PROSECUTION WAS ABLE TO ESTABLISH BEYOND
REASONABLE DOUBT THAT THE ACCUSED ARE GUILTY OF MURDER.4

The CA rendered its Decision, the dispositive portion of which states:

WHEREFORE, the appealed judgment of conviction is MODIFIED. Appellants are hereby sentenced to reclusion perpetua. The
award for attorney’s fees and appearance fees for counsel are hereby deleted. In all the other aspects, the appealed decision is
maintained.

Let the entire records of the case be elevated to the Supreme Court for the mandated review.

SO ORDERED.5

The CA affirmed the findings of fact as well as the salient portions of the RTC Decision, but deleted the award of attorney’s fees and
the per appearance fees of counsel since, the

CA reasoned, the instant case is criminal in nature which is under the control of the public prosecutor, and, additionally, the RTC
failed to justify this award in the body of its Decision. And last, the CA found that the RTC erroneously applied the Indeterminate
Sentence Law since the penalty for Murder, at the time of the incident, was reclusion perpetua which is an indivisible penalty to be
imposed in its entirety, regardless of the attending mitigating circumstance of voluntary surrender.

Appellants are now before this Court submitting for resolution the same matters argued before the CA. Through their Manifestation
dated February 11, 2003,6 appellants prayed to dispense with the filing of additional briefs.
As of date, the records show that despite the efforts exerted by the surety and the responsible law officers to locate the appellants, the
latter could not be found and have jumped bail.7

The appeal is partly meritorious.

Appellants argue that the courts a quo misappreciated the facts and erred in finding that there was no unlawful aggression on the part
of the victim. They insist that the victim, Javier, had been armed with a revolver at the time he was struggling with appellant Dagani;
that the former "could have easily killed the latter;" that, given the fact that Javier had been drinking, "it is quite probable for Javier to
act harshly and aggressively towards

peace officers such as the accused;"8 and that Javier actually fired three shots from his .22 caliber gun.9

We are not convinced.

When self-defense is invoked, the burden of evidence shifts to the accused to show that the killing was legally justified. Having owned
the killing of the victim, the accused should be able to prove to the satisfaction of the Court the elements of self-defense in order to
avail of this extenuating circumstance. He must discharge this burden by clear and convincing evidence. When successful, an
otherwise felonious deed would be excused, mainly predicated on the lack of criminal intent of the accused. Self-defense requires that
there be (1) an unlawful aggression by the person injured or killed by the offender, (2) reasonable necessity of the means employed to
prevent or repel that unlawful aggression, and (3) lack of sufficient provocation on the part of the person defending himself. All these
conditions must concur.10

Unlawful aggression, a primordial element of self-defense, would presuppose an actual, sudden and unexpected attack or imminent
danger on the life and limb of a person – not a mere threatening or intimidating attitude 11 – but most importantly, at the time the
defensive action was taken against the aggressor. 12 To invoke self-defense successfully, there must have been an

unlawful and unprovoked attack that endangered the life of the accused, who was then forced to inflict severe wounds upon the
assailant by employing reasonable means to resist the attack. 13

In the instant case, the assertions that it was "quite probable" that Javier, during the course of the struggle for the firearm, "could have
easily killed" the appellants are uncertain and speculative. There is aggression in contemplation of the law only when the one attacked
faces real and immediate threat to one’s life. The peril sought to be avoided must be imminent and actual, not just speculative. 14

To sum up the matter, we quote the findings of the CA:

The defense was unable to prove that there was unlawful aggression on the part of Javier. They were unable to present evidence that
the victim actually fired his gun. No spent shells from the .22 caliber pistol were found and no bullets were recovered from the scene
of the incident. Javier also tested negative for gunpowder residue. Moreover, the trial court found appellant Dagani’s account of the
incident to be incredible and self-serving. In sum, the defense presented a bare claim of self-defense without any proof of the existence
of its requisites.15

Even if it were established that Javier fired his gun as the appellants so insist, the imminence of the danger to their lives had already
ceased the moment Dagani held down the victim and grappled for the gun with the latter. After the victim had been thrown off-
balance, there was no longer any unlawful aggression

that would have necessitated the act of killing. 16 When an unlawful aggression that has begun no longer exists, the one who resorts to
self-defense has no right to kill or even to wound the former aggressor. 17 When Javier had been caught in the struggle for the
possession of the gun with appellant Dagani, the grave peril envisaged by appellant Santiano, which impelled him to fire at the victim,
had then ceased to a reasonable extent,18 and undoubtedly, Santiano went beyond the call of self-preservation when he proceeded to
inflict the excessive and fatal injuries on Javier, even when the alleged unlawful aggression had already ceased. 19

The second element of self-defense demands that the means employed to neutralize the unlawful aggression are reasonable and
necessary. It is settled that reasonable necessity of the means employed does not imply material commensurability between the means
of attack and defense. What the law requires is rational equivalence. 20 The circumstances in their entirety which surround the
grappling of the firearm by Dagani and Javier, such as the nature and number of gunshot wounds sustained by the victim 21 which
amounted to two fatal wounds,22 that Dagani was able to restrain the hands of Javier and push

them away from his body,23 that Dagani was larger than Javier and had finished Special Weapons and Tactics (SWAT) hand-to-

hand combat training,24 and Javier, as admitted by the appellants, was inebriated at the time of the incident, 25 do not justify appellant
Santiano’s act of fatally shooting the victim twice.26

All things considered, the appellants’ plea of self-defense is not corroborated by competent evidence. The plea of self-defense cannot
be justifiably entertained where it is not only uncorroborated by any separate competent evidence but is in itself extremely
doubtful.27 Whether the accused acted in self-defense is a question of fact. Like alibi, the affirmative defense of self-defense is
inherently weak because, as experience has demonstrated, it is easy to fabricate and difficult to disprove. 28 This Court, therefore, finds
no reversible error on the part of the courts a quo in rejecting the claim of self-defense.

Appellants set up the defense that they were in the lawful performance of their official duties. They specifically aver that they had
been ordered by their desk officer to proceed to the canteen in response to a telephone call stating that there was a group "creating
trouble;" that they were in the call of duty and exercising their functions and responsibilities as members of the PNR Civil Security
Office to preserve peace and order and
protect the lives and property in the PNR Compound;29 and that, invoking jurisprudence, as security officers in the performance of
duty, like the police, they must stand their ground and overcome the opponent, and the force that may be exerted must differ from that
which ordinarily may be offered in self-defense.30

Article 11 of the Revised Penal Code provides that a person who acts in the fulfillment of a duty or in the lawful exercise of a right or
office does not incur any criminal liability. Two requisites must concur before this defense can prosper: 1) the accused must have
acted in the performance of a duty or in the lawful exercise of a right or office; and 2) the injury caused or the offense committed
should have been the necessary consequence of such lawful exercise.31 These requisites are absent in the instant case.

As found by the CA:

The defense failed to prove that the security officers were in fact on duty at the time they were at the canteen. The trial court gave
weight to the fact that the appellants were unable to submit their daily time records to show that they were on duty at the time.
Appellants’ assertion that they were ordered to go on 24-hour duty was belied by PNR Security Investigator Rolando Marinay’s
testimony that PNR security officers work in two 12-hour shifts, from 7:00 a.m. to 7:00 p.m. and from 7:00 p.m. to 7:00 a.m.

Moreover, since it was not established that Javier fired his gun, the injury inflicted upon him cannot be regarded as a necessary
consequence of appellants’ due performance of an official duty.32

As stated, considering that the imminent or actual danger to the life of the appellants had been neutralized when Dagani grappled with
Javier and restrained his hands; that Javier had been thrown off-balance; that Dagani had been specially trained for these purposes; and
that Javier had been drinking immediately prior to the scuffle, this Court holds that the fatal injuries that appellant Santiano inflicted
on the victim cannot be deemed to be necessary consequences of the performance of his duty as a PNR security officer. 33 While it is
recognized that police officers – if indeed the appellants can be likened to them – must stand their ground and overwhelm their
opponents, in People v. Ulep,34 this Court counseled:

The right to kill an offender is not absolute, and may be used only as a last resort, and under circumstances indicating that the offender
cannot otherwise be taken without bloodshed. The law does not clothe police officers with authority to arbitrarily judge the necessity
to kill. It may be true that police officers sometimes find themselves in a dilemma when pressured by a situation where an immediate
and decisive, but legal, action is needed. However, it must be stressed that the judgment and discretion of police officers in the
performance of their duties must be exercised neither capriciously nor oppressively, but within reasonable limits. In the absence of a
clear and legal provision to the contrary, they must act in conformity with the dictates of a sound discretion, and within the spirit and
purpose of the law. We cannot countenance trigger-happy law enforcement officers who indiscriminately employ force and violence
upon the persons they are apprehending. They must always bear in mind that although they are dealing with criminal elements against
whom society must be protected, these criminals are also human beings with human rights.35

But this Court cannot agree with the findings of the courts a quo that the appellants were in conspiracy.

The RTC simply held:

The Information cited conspiracy of the accused. Since it can also be committed thru simultaneous/concerted action and considering
that Javier was shot by Santiano while being held by Dagani, under jurisprudence, conspiracy is present.36

The tenor of the factual findings of the CA is equally unsatisfactory:

Moreover, the facts show that Javier was shot by appellant Santiano as he was being subdued by appellant Dagani. The trial court held
that the manner of the attack was indicative of a joint purpose and design by the appellants.37

Courts must judge the guilt or innocence of the accused based on facts and not on mere conjectures, presumptions, or
suspicions.38 Other than the plain fact that the victim had been shot by one of the accused while being held by a co-accused, there is no
other evidence that the appellants were animated by the same purpose or were moved by a previous common accord. It follows that
the liability of the accused must be determined on an individual basis. While no formal agreement is necessary to establish conspiracy
because conspiracy may be inferred from the circumstances attending the commission of the crime, yet, conspiracy must be
established by clear and convincing evidence.39

This Court has held that even if all the malefactors joined in the killing, such circumstance alone does not satisfy the requirement of
conspiracy because the rule is that

neither joint nor simultaneous action is per se sufficient proof of conspiracy. Conspiracy must be shown to exist

as clearly and convincingly as the commission of the offense itself. 40 Thus, even assuming that Javier was simultaneously attacked,
this does not prove conspiracy. No evidence was presented to show that the appellants planned to kill Javier or that Dagani’s overt acts
facilitated that alleged plan. The prosecution did not establish that the act of Dagani in trying to wrestle the gun from Javier and in the
process, held the latter’s hands, was for the purpose of enabling Santiano to shoot at Javier. The prosecution had the burden to show
Dagani’s intentional participation to the furtherance of a common design and purpose 41 or that his action was all part of a scheme to
kill Javier. That Dagani did not expect Santiano to shoot the victim is established when Santiano testified that Dagani "seem[ed] to be
shocked, he was standing and looking at the victim" as Javier gradually fell to the ground. 42 And since Dagani’s conviction can only
be sustained if the crime had been carried out through a conspiracy duly proven, in view of the failure of the prosecution to discharge
that burden, this Court is constrained to acquit him.

And this Court cannot say that treachery attended the attack. The RTC declared:
[T]he Court believes that Javier was shot while his body was out-balanced and about to fall to the right side and while his hands were
being held by Dagani. Javier, therefore, was shot at when he has no means to defend himself, hence, the killing was attended by the
qualifying circumstance of treachery.43

which the CA affirmed as follows:

The findings of the court a quo clearly showed that Javier was being held down and could not effectively use his weapon. As such, the
trial court held that Javier could not be considered to be an armed man as he was being held down and was virtually helpless.

It has been held that when an assault is made with a deadly weapon upon an unarmed and unsuspecting victim who [was] given no
immediate provocation for the attack and under conditions which made it impossible for him to evade the attack, flee or make [a]
defense, the act is properly qualified as treachery, and the homicide resulting therefrom is classified as murder. 44 x x x

Treachery under par.16 of Article 14 of the Revised Penal Code is defined as the deliberate employment of means, methods or forms
in the execution of a crime against persons which tend directly and specially to insure its execution, without risk to the offender
arising from the defense which the intended victim might raise. Treachery is present when two conditions concur, namely: (1) that the
means, methods and forms of execution employed gave the person attacked no opportunity to defend himself or to retaliate; and (2)
that such means, methods and forms of execution were deliberately and consciously adopted by the accused without danger to his
person.45

This Court has held that the suddenness of the attack, the infliction of the wound from behind the victim, the vulnerable position of the
victim at the time the attack was made, or the fact that the victim was unarmed, do not by themselves render the

attack as treacherous.46 This is of particular significance in a case of an instantaneous attack made by the accused whereby he gained
an advantageous position over the victim when the latter accidentally fell and was rendered defenseless. 47 The means employed for the
commission of the crime or the mode of attack must be shown to have been consciously or deliberately adopted by the accused to
insure the consummation of the crime and at the same time eliminate or reduce the risk of retaliation from the intended victim. 48 For
the rules on treachery to apply, the sudden attack must have been preconceived by the accused, unexpected by the victim, and without
provocation on the part of the latter.49 Treachery is never presumed. Like the rules on conspiracy, it is required that the manner of
attack must be shown to have been attended by treachery as conclusively as the crime itself.50

The prosecution failed to convincingly prove that the assault by the appellants had been deliberately adopted as a mode of attack
intended to insure the killing of Javier and without the latter having the opportunity to defend himself. Other than the bare fact that
Santiano shot Javier while the latter had been struggling with Dagani over the possession of the .22 caliber gun, no other fact had been
adduced to show that the appellants consciously planned or predetermined the methods to insure the commission of the crime, nor had
the risk of the victim to

retaliate been eliminated during the course of the struggle over the weapon, as the latter, though struggling, had not been

completely subdued. As already stated, this Court must emphasize that the mere suddenness of the attack, or the vulnerable position of
the victim at the time of the attack, or yet even the fact that the victim was unarmed, do not by themselves make the attack
treacherous.51 It must be shown beyond reasonable doubt that the means employed gave the victim no opportunity to defend himself or
retaliate, and that such means had been deliberately or consciously adopted without danger to the life of the accused. 52

For these reasons, the Court is inclined to look upon the helpless position of Javier as merely incidental to the attack, and that the
decision to shoot Javier was made in an instant.53

Considering the rule that treachery cannot be inferred but must be proved as fully and convincingly as the crime itself, any doubt as to
its existence must be resolved in favor of Santiano. Accordingly, for failure of the prosecution to prove treachery to qualify the killing
to Murder, appellant Santiano may only be convicted of Homicide. 54 The penalty, therefore, under Article 249 of the Revised Penal
Code, as amended, is reclusion temporal.

The Office of the Solicitor General is correct in that the courts a quo failed to consider the aggravating circumstance of

taking advantage of official position under Article 14 (1) of the Revised Penal Code, since the accused, a PNR security officer

covered by the Civil Service, committed the crime with the aid of a gun he had been authorized to carry as such. 55 Considering that the
mitigating circumstance of voluntary surrender, as duly appreciated by the courts a quo, shall be offset against the aggravating
circumstance of taking advantage of official position, the penalty should be imposed in its medium period, pursuant to Article 64 (4)
of the aforesaid Code.

Applying the Indeterminate Sentence Law, the sentence of appellant Santiano will consist of a minimum that is anywhere within the
full range of prision mayor, and a maximum which is anywhere within reclusion temporal in its medium period. This Court hereby
fixes it to be from eight (8) years and one (1) day of prision mayor as minimum, to fourteen (14) years, eight (8) months, and one (1)
day of reclusion temporal, as maximum.

As to the award of damages, prevailing jurisprudence entitles the heirs of the deceased to the amount of P50,000.00 as civil indemnity
for the death of the victim without need of any evidence or proof of damages.56

The CA erred in deleting the attorney’s fees and per appearance fees for lack of factual basis. Although the CA is correct in noting that
the RTC failed to justify these awards in the body of its Decision, this appeal opens the entire case for review and, accordingly, the
records show that the foregoing
amounts had been stipulated by the parties,57 thereby dispensing with the need to prove the same.58

As to moral damages, however, the widow of the victim, Erlinda Javier, is not entitled to the same. She did not testify on any mental
anguish or emotional distress which she suffered as a result of her husband’s death. No other heirs of Javier testified in the same
manner.59

Inasmuch as the aggravating circumstance of taking advantage of official position attended the killing, the Court awards exemplary
damages in the amount of P25,000.00 in accordance with Articles 2230 and 2234 of the Civil Code and prevailing jurisprudence. 60

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 15304 dated June 20, 2002 is MODIFIED. Appellant
Otello Santiano y Leonida is found GUILTY beyond reasonable doubt of Homicide and is sentenced to suffer the penalty of an
indeterminate sentence from eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months, and
one (1) day of reclusion temporal as maximum. Appellant Santiano is further ordered to pay the heirs of the victim the amounts
of P50,000.00 as death indemnity, P31,845.00 as funeral and burial expenses, P25,000.00 as exemplary damages, P30,000.00 as
attorney’s fees and P1,000.00

per appearance of counsel. Appellant Santiano shall be credited with the full extent of his preventive imprisonment.

Appellant Rolando Dagani y Reyes is hereby ACQUITTED.

SO ORDERED.

9. Palaganas v. People, G.R. No. 165483

G.R. No. 165483             September 12, 2006

RUJJERIC Z. PALAGANAS,1 petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

CHICO-NAZARIO, J.:

For what is a man, what has he got?

If not himself, then he has naught.
To say the things he truly feels;
And not the words of one who kneels.
The record shows I took the blows -
And did it my way!

The song evokes the bitterest passions. This is not the first time the song "My Way" 2 has triggered violent behavior resulting in people
coming to blows. In the case at bar, the few lines of the song depicted what came to pass when the victims and the aggressors tried to
outdo each other in their rendition of the song.

In this Petition for Review on Certiorari3 under Rule 45 of the Revised Rules of Court, petitioner Rujjeric Z. Palaganas prays for the
reversal of the Decision of the Court of Appeals in CA-G.R. CR No. 22689 dated 30 September 2004, 4 affirming with modification
the Decision of the Regional Trial Court (RTC), Branch 46, of Urdaneta, Pangasinan, in Criminal Cases No. U-9608, U-9609, and U-
9610 and U-9634, dated 28 October 1998, 5 finding petitioner guilty beyond reasonable doubt of the crime of Homicide under Article
249 of the Revised Penal Code, and two (2) counts of Frustrated Homicide under Article 249 in relation to Articles 6 and 50 of the
same Code.

On 21 April 1998, petitioner and his older brother, Ferdinand Z. Palaganas (Ferdinand), were charged under four (4) separate
Informations6 for two (2) counts of Frustrated Murder, one (1) count of Murder, and one (1) count for Violation of COMELEC
Resolution No. 29587 relative to Article 22, Section 261, of the Omnibus Election Code,8 allegedly committed as follows:

CRIMINAL CASE NO. U-9608

That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the jurisdiction of this
Honorable Court, the above-named accused armed with an unlicensed firearm, with intent to kill, treachery and evident
premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot SERVILLANO FERRER,
JR. y Juanatas, inflicting upon him "gunshot wound penetrating perforating abdomen, urinary bladder, rectum bullet sacral
region," the accused having thus performed all the acts of execution which would have produced the crime of Murder as a
consequence, but which nevertheless, did not produce it by reason of the causes independent of the will of the accused and
that is due to the timely medical assistance rendered to said Servillano J. Ferrer, Jr. which prevented his death, to his
damage and prejudice.
 CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal Code, as amended.

CRIMINAL CASE NO. U-9609

That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the jurisdiction of this
Honorable Court, the above-named accused armed with an unlicensed firearm, with intent to kill, treachery and evident
premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot MICHAEL FERRER alias
"Boying Ferrer", inflicting upon him gunshot wound on the right shoulder, the accused having thus performed all the acts of
execution which would have produced the crime of murder as a consequence, but which nevertheless, did not produce it by
reason of the causes independent of the will of the accused and that is due to the medical assistance rendered to said Michael
"Boying" Ferrer which prevented his death, to his damage and prejudice.

CONTRARY to Art. 248 in relation with Arts. 6 and 50, all of the Revised Penal Code, as amended.

CRIMINAL CASE NO. U-9610

That on or about January 16, 1998, in the evening at Poblacion, Manaoag, Pangasinan and within the jurisdiction of this
Honorable Court, the above-named accused armed with an unlicensed firearm, with intent to kill, treachery and evident
premeditation, conspiring together, did then and there willfully, unlawfully and feloniously shoot MELTON FERRER alias
"TONY FERRER", inflicting upon him mortal gunshot wounds in the head and right thigh which caused the  instantaneous
death of said Melton "Tony" Ferrer, to the damage and prejudice of his heirs.

CONTRARY to Art. 248 of the Revised Penal Code, as amended by R.A. 7659.

CRIMINAL CASE NO. U-9634

That on or about January 16, 1998 which is within the election period at Poblacion, Manaoag, Pangasinan, and within the
jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously bear
and carry one (1) caliber .38 without first securing the necessary permit/license to do the same.

CONTRARY to COMELEC RES. 2958 in relation with SEC. 261 of the OMNIBUS ELECTION CODE, as
amended.9 (Underscoring supplied.)

When arraigned on separate dates, 10 petitioner and Ferdinand entered separate pleas of "Not Guilty." Upon motion of Ferdinand, 11 the
four cases were consolidated and were assigned to Branch 46 of the RTC in Urdaneta, Pangasinan.12

The factual antecedents as viewed by the prosecution, are summarized in the Comment dated 18 April 2005 of the Office of the
Solicitor General,13 to wit:

On January 16, 1998, around 8:00 in the evening, brothers Servillano, [Melton] and Michael, all surnamed Ferrer were
having a drinking spree in their house because [Melton], who was already living in San Fernando, La Union, visited his three
brothers and mother at their house in Sitio Baloking, Poblacion, Manaoag, Pangasinan. At 9:45 in the evening, the three
brothers decided to proceed to Tidbits Videoke bar located at the corner of Malvar and Rizal Streets, Poblacion, Manaoag to
continue their drinking spree and to sing. Inside the karaoke bar, they were having a good time, singing and drinking beer.

Thereafter, at 10:30 in the evening, Jaime Palaganas arrived together with Ferdinand Palaganas and Virgilio Bautista. At that
time, only the Ferrer brothers were the customers in the bar. The two groups occupied separate tables. Later, when Jaime
Palaganas was singing, [Melton] Ferrer sang along with him as he was familiar with the song [My Way]. Jaime however,
resented this and went near the table of the Ferrer brothers and said in Pangasinan dialect "As if you are tough guys." Jaime
further said "You are already insulting me in that way." Then, Jaime struck Servillano Ferrer with the microphone, hitting the
back of his head. A rumble ensued between the Ferrer brothers on the one hand, and the Palaganases, on the other hand.
Virgilio Bautista did not join the fray as he left the place. During the rumble, Ferdinand went out of the bar. He was however
pursued by Michael. When Servillano saw Michael, he also went out and told the latter not to follow Ferdinand. Servillano
and Michael then went back inside the bar and continued their fight with Jaime.

Meantime, Edith Palaganas, sister of Jaime and the owner of the bar, arrived and pacified them. Servillano noticed that his
wristwatch was missing. Unable to locate the watch inside the bar, the Ferrer brothers went outside. They saw Ferdinand
about eight (8) meters away standing at Rizal Street. Ferdinand was pointing at them and said to his companion, later
identified as petitioner [Rujjeric] Palaganas, "Oraratan paltog mo lara", meaning "They are the ones, shoot them." Petitioner
then shot them hitting Servillano first at the left side of the abdomen, causing him to fall on the ground, and followed by
[Melton] who also fell to the ground. When Servillano noticed that [Melton] was no longer moving, he told Michael
"Bato, bato." Michael picked up some stones and threw them at petitioner and Ferdinand. The latter then left the place.
Afterwards, the police officers came and the Ferrer brothers were brought to the Manaoag Hospital and later to Villaflor
Hospital in Dagupan. Servillano later discovered that [Melton] was fatally hit in the head while Michael was hit in the right
shoulder.

On the other hand, the defense, in its Appellant's Brief dated 3 December 1999,14 asserted the following set of facts:

On January 16, 1998, at around 11:00 in the evening, after a drinking session at their house, the brothers Melton (Tony),
Servillano (Junior) and Michael (Boying), all surnamed Ferrer, occupied a table inside the Tidbits Café and Videoke Bar and
started drinking and singing. About thirty minutes later, Jaime Palaganas along with his nephew Ferdinand (Apo) and friend
Virgilio Bautista arrived at the bar and occupied a table near that of the Ferrers'.
 After the Ferrers' turn in singing, the microphone was handed over to Jaime Palaganas, who then started to sing. On his third
song [My Way], Jaime was joined in his singing by Tony Ferrer, who sang loudly and in an obviously mocking manner. This
infuriated Jaime, who then accosted Tony, saying, "You are already insulting us." The statement resulted in a free for all fight
between the Ferrers', on one hand, and the Palaganases on the other. Jaime was mauled and Ferdinand, was hit on the face
and was chased outside of the bar by Junior and Boying Ferrer.

Ferdinand then ran towards the house of the appellant Rujjeric Palaganas, his brother, and sought the help of the latter.
Rujjeric, stirred from his sleep by his brother's shouts, went out of his house and, noticing that the van of his uncle was in
front of the Tidbits Videoke Bar, proceeded to that place. Before reaching the bar, however, he was suddenly stoned by the
Ferrer brothers and was hit on different parts of his body, so he turned around and struggled to run towards his house. He
then met his brother, Ferdinand, going towards the bar, so he tugged him and urged him to run towards the opposite direction
as the Ferrer brothers continued pelting them with large stones. Rujjeric then noticed that Ferdinand was carrying a gun, and,
on instinct, grabbed the gun from the latter, faced the Ferrer brothers and fired one shot in the air to force the brothers to
retreat. Much to his surprise, however, the Ferrer brothers continued throwing stones and when (sic) the appellant was again
hit several times. Unable to bear the pain, he closed his eyes and pulled the trigger.

On 28 October 1998, the trial court rendered its Decision finding petitioner guilty only of the crime of Homicide and two (2) counts of
Frustrated Homicide.15 He was, however, acquitted of the charge of Violation of COMELEC Resolution No. 2958 in relation to
Section 261 of the Omnibus Election Code.16 On the other hand, Ferdinand was acquitted of all the charges against him.17

In holding that petitioner is liable for the crimes of Homicide and Frustrated Homicide but not for Murder and Frustrated Murder, the
trial court explained that there was no conspiracy between petitioner and Ferdinand in killing Melton and wounding Servillano and
Michael.18 According to the trial court, the mere fact that Ferdinand "pointed" to where the Ferrer brothers were and uttered to
petitioner "Araratan, paltog mo lara!" (They are the ones, shoot them!), does not in itself connote common design or unity of purpose
to kill. It also took note of the fact that petitioner was never a participant in the rumble inside the Tidbits Cafe Videoke Bar (videoke
bar) on the night of 16 January 1998. He was merely called by Ferdinand to rescue their uncle, Jaime, who was being assaulted by the
Ferrer brothers. It further stated that the shooting was instantaneous and without any prior plan or agreement with Ferdinand to
execute the same. It found that petitioner is solely liable for killing Melton and for wounding Servillano and Michael, and that
Ferdinand is not criminally responsible for the act of petitioner.

Further, it declared that there was no treachery that will qualify the crimes as murder and frustrated murder since the Ferrer brothers
were given the chance to defend themselves during the shooting incident by stoning the petitioner and Ferdinand. 19 It reasoned that the
sudden and unexpected attack, without the slightest provocation on the part of the victims, was absent. In addition, it ratiocinated that
there was no evident premeditation as there was no sufficient period of time that lapsed from the point where Ferdinand called the
petitioner for help up to the point of the shooting of the Ferrer brothers. 20 Petitioner was sleeping at his house at the time he heard
Ferdinand calling him for help. Immediately, petitioner, still clad in pajama and sleeveless shirt, went out of his room to meet
Ferdinand. Thereafter, both petitioner and Ferdinand went to the videoke bar where they met the Ferrer brothers and, shortly
afterwards, the shooting ensued. In other words, according to the trial court, the sequence of the events are so fast that it is improbable
for the petitioner to have ample time and opportunity to then plan and organize the shooting.

Corollarily, it also stated that petitioner cannot successfully invoke self-defense since there was no actual or imminent danger to his
life at the time he and Ferdinand saw the Ferrer brothers outside the videoke bar. 21 It noted that when petitioner and Ferdinand saw the
Ferrer brothers outside the videoke bar, the latter were not carrying any weapon. Petitioner then was free to run or take cover when the
Ferrer brothers started pelting them with stones. Petitioner, however, opted to shoot the Ferrer brothers. It also stated that the use by
petitioner of a gun was not a reasonable means to prevent the attack of the Ferrer brothers since the latter were only equipped with
stones, and that the gun was deadlier compared to stones. Moreover, it also found that petitioner used an unlicensed firearm in
shooting the Ferrer brothers.22

As regards the Violation of COMELEC Resolution No. 2958, in relation to Section 261 of the Omnibus Election Code, the trial court
acquitted the petitioner of the offense as his use and possession of a gun was not for the purpose of disrupting election activities. 23 In
conclusion, the trial court held:

WHEREFORE, JUDGMENT is hereby rendered as follows:

1. Under CRIM. CASE NO. U-9610, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable doubt of the
crime of HOMICIDE (Not Murder) with the use of an unlicensed firearm. The penalty imposable is in its maximum period
which is 20 years. The Court sentences [Rujjeric] Palaganas to suffer the penalty of Reclusion Temporal in its maximum
period or 20 years of imprisonment; and to pay the heirs of [MELTON] Ferrer the sum of P7,791.50 as actual medical
expenses of [MELTON] Ferrer; P500,000.00 as moral damages representing unearned income of [MELTON]; P50,000.00
for the death of [MELTON]; P50,000.00 for exemplary damages and P100,000.00 for burial and funeral expenses.

Ferdinand Palaganas is hereby ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to
prove the guilt of Ferdinand Palaganas beyond reasonable doubt.

2. Under CRIM. CASE NO. U-9608, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable doubt of the
crime of FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use of an unlicensed firearm, the Court sentences
him to suffer the penalty of Prision Mayor in its maximum period or 12 years of imprisonment and to pay Servillano Ferrer
the sum of P163,569.90 for his medical expenses and P50,000.00 for exemplary damages;

Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to prove the
guilt of Ferdinand Palaganas beyond reasonable doubt.

3. Under CRIM. CASE NO. U-9609, [Rujjeric] PALAGANAS is hereby CONVICTED beyond reasonable doubt of the
crime of FRUSTRATED HOMICIDE (Not Frustrated Murder), with the use of an unlicensed firearm, the Court sentences
 him to suffer the penalty of Prision Mayor in its maximum period or 12 years of imprisonment; and to pay Michael Ferrer the
sum of P2,259.35 for his medical expenses and P50,000.00 for exemplary damages;

Ferdinand Palaganas is ACQUITTED for failure of the prosecution to prove conspiracy and likewise, for failure to prove the
guilt of Ferdinand Palaganas beyond reasonable doubt.

Ordering accused [Rujjeric] Palaganas to pay Mrs. Elena Ferrer, the mother of the Ferrer brothers, the amount
of P100,000.00 as attorney's fees in CRIM. CASES NOS. U-9608, U-9609, U-9610.

4. Under CRIM. CASE NO. U-9634, for failure of the prosecution to prove the guilt of [Rujjeric] Palaganas beyond
reasonable doubt of the crime of Violation of COMELEC Resolution No. 2958 in relation with Section 261 of the Omnibus
Election Code, the Court ACQUITS [RUJJERIC] PALAGANAS.24

Aggrieved, the petitioner appealed the foregoing Decision of the RTC dated 28 October 1998, before the Court of Appeals. In its
Decision dated 30 September 2004, the Court of Appeals affirmed with modifications the assailed RTC Decision. In modifying the
Decision of the trial court, the appellate court held that the mitigating circumstance of voluntary surrender under Article 13, No. 7, of
the Revised Penal Code should be appreciated in favor of petitioner since the latter, accompanied by his counsel, voluntarily appeared
before the trial court, even prior to its issuance of a warrant of arrest against him. 25 It also stated that the Indeterminate Sentence Law
should be applied in imposing the penalty upon the petitioner.26 The dispositive portion of the Court of Appeals' Decision reads:

WHEREFORE, the judgment of conviction is hereby AFFIRMED, subject to the MODIFICATION that the penalty to be
imposed for the crimes which the appellant committed are as follows:

(1) For Homicide (under Criminal Case No. U-9610), the appellant is ordered to suffer imprisonment of ten (10) years
of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum. Appellant is
also ordered to pay the heirs of Melton Ferrer civil indemnity in the amount of  P50,000.00, moral damages in the amount
of P50,000.00 without need of proof and actual damages in the amount of P43,556.00.

(2) For Frustrated Homicide (under Criminal Case No. U-9609), the appellant is hereby ordered to suffer imprisonment of
four (4) years and two (2) months of prision correcional as minimum to ten (10) years of prision mayor as maximum.
Appellant is also ordered to pay Michael Ferrer actual damages in the amount of P2,259.35 and moral damages in the amount
of P30,000.00.

(3) For Frustrated Homicide (under Criminal Case No. U-9608), the appellant is hereby penalized with imprisonment of four
(4) years and two (2) months of prision correcional as minimum to ten (10) years of prision mayor as maximum. Appellant is
also ordered to pay Servillano Ferrer actual damages in the amount of P163,569.90 and moral damages in the amount
of P30,000.00.27

On 16 November 2004, petitioner lodged the instant Petition for Review before this Court on the basis of the following arguments:

I.

THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT OF CONVICTION OF THE
TRIAL COURT.

II.

THE HONORABLE COURT OF APPEALS ERRED IN NOT ACQUITTING ACCUSED-APPELLANT ON THE

GROUND OF LAWFUL SELF-DEFENSE.28

Anent the first issue, petitioner argued that all the elements of a valid self-defense are present in the instant case and, thus, his acquittal
on all the charges is proper; that when he fired his gun on that fateful night, he was then a victim of an unlawful aggression perpetrated
by the Ferrer brothers; that he, in fact, sustained an injury in his left leg and left shoulder caused by the stones thrown by the Ferrer
brothers; that the appellate court failed to consider a material evidence described as "Exhibit O"; that "Exhibit O" should have been
given due weight since it shows that there was slug embedded on the sawali wall near the sign "Tidbits Café and Videoke Bar"; that
the height from which the slug was taken was about seven feet from the ground; that if it was true that petitioner and Ferdinand were
waiting for the Ferrer brothers outside the videoke bar in order to shoot them, then the trajectory of the bullets would have been either
straight or downward and not upward considering that the petitioner and the Ferrer brothers were about the same height (5'6"-5'8");
that the slug found on the wall was, in fact, the "warning shot" fired by the petitioner; and, that if this exhibit was properly appreciated
by the trial court, petitioner would be acquitted of all the charges.29

Moreover, petitioner contended that the warning shot proved that that the Ferrer brothers were the unlawful aggressors since there
would have been no occasion for the petitioner to fire a warning shot if the Ferrer brothers did not stone him; that the testimony of
Michael in the trial court proved that it was the Ferrer brothers who provoked petitioner to shoot them; and that the Ferrer brothers
pelted them with stones even after the "warning shot."30

Petitioner's contention must fail.

Article 11, paragraph (1), of the Revised Penal Code provides for the elements and/or requisites in order that a plea of self-defense
may be validly considered in absolving a person from criminal liability, viz:

ART. 11. Justifying circumstances. – The following do not incur any criminal liability:
 1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur;

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself. x x x.

As an element of self-defense, unlawful aggression refers to an assault or attack, or a threat thereof in an imminent and immediate
manner, which places the defendant's life in actual peril. 31 It is an act positively strong showing the wrongful intent of the aggressor
and not merely a threatening or intimidating attitude. 32 It is also described as a sudden and unprovoked attack of immediate and
imminent kind to the life, safety or rights of the person attacked. 33

There is an unlawful aggression on the part of the victim when he puts in actual or imminent peril the life, limb, or right of the person
invoking self-defense. There must be actual physical force or actual use of weapon. 34 In order to constitute unlawful aggression, the
person attacked must be confronted by a real threat on his life and limb; and the peril sought to be avoided is imminent and actual, not
merely imaginary.35

In the case at bar, it is clear that there was no unlawful aggression on the part of the Ferrer brothers that justified the act of petitioner in
shooting them. There were no actual or imminent danger to the lives of petitioner and Ferdinand when they proceeded and arrived at
the videoke bar and saw thereat the Ferrer brothers. It appears that the Ferrer brothers then were merely standing outside the videoke
bar and were not carrying any weapon when the petitioner arrived with his brother Ferdinand and started firing his gun.36

Assuming, arguendo, that the Ferrer brothers had provoked the petitioner to shoot them by pelting the latter with stones, the shooting
of the Ferrer brothers is still unjustified. When the Ferrer brothers started throwing stones, petitioner was not in a state of actual or
imminent danger considering the wide distance (4-5 meters) of the latter from the location of the former. 37 Petitioner was not cornered
nor trapped in a specific area such that he had no way out, nor was his back against the wall. He was still capable of avoiding the
stones by running away or by taking cover. He could have also called or proceeded to the proper authorities for help. Indeed,
petitioner had several options in avoiding dangers to his life other than confronting the Ferrer brothers with a gun.

The fact that petitioner sustained injuries in his left leg and left shoulder, allegedly caused by the stones thrown by the Ferrer brothers,
does not signify that he was a victim of unlawful aggression or that he acted in self-defense. 38 There is no evidence to show that his
wounds were so serious and severe. The superficiality of the injuries sustained by the petitioner is no indication that his life and limb
were in actual peril.39

Petitioner's assertion that, despite the fact that he fired a warning shot, the Ferrer brothers continued to pelt him with stones, 40 will not
matter exonerate him from criminal liability. Firing a warning shot was not the last and only option he had in order to avoid the stones
thrown by the Ferrer brothers. As stated earlier, he could have run away, or taken cover, or proceeded to the proper authorities for
help. Petitioner, however, opted to shoot the Ferrer brothers.

It is significant to note that the shooting resulted in the death of Melton, and wounding of Servillano and Michael. With regard to
Melton, a bullet hit his right thigh, and another bullet hit his head which caused his instant death. 41 As regards Servillano, a bullet
penetrated two of his vital organs, namely, the large intestine and urinary bladder. 42 He underwent two (2) surgeries in order to survive
and fully recover.43 Michael, on the other hand, sustained a gunshot wound on the right shoulder. 44 It must also be noted that the Ferrer
brothers were shot near the videoke bar, which contradict petitioner's claim he was chased by the Ferrer brothers. Given the foregoing
circumstances, it is difficult to believe that the Ferrer brothers were the unlawful aggressors. As correctly observed by the prosecution,
if the petitioner shot the Ferrer brothers just to defend himself, it defies reason why he had to shoot the victims at the vital portions of
their body, which even led to the death of Melton who was shot at his head. 45 It is an oft-repeated rule that the nature and number of
wounds inflicted by the accused are constantly and unremittingly considered important indicia to disprove a plea of self-defense. 46

Let it not be forgotten that unlawful aggression is a primordial element in self-defense. 47 It is an essential and indispensable requisite,
for without unlawful aggression on the part of the victim, there can be, in a jural sense, no complete or incomplete self-
defense.48 Without unlawful aggression, self-defense will not have a leg to stand on and this justifying circumstance cannot and will
not be appreciated, even if the other elements are present. 49 To our mind, unlawful aggression, as an element of self-defense, is
wanting in the instant case.

The second element of self-defense requires that the means employed by the person defending himself must be reasonably necessary
to prevent or repel the unlawful aggression of the victim. The reasonableness of the means employed may take into account the
weapons, the physical condition of the parties and other circumstances showing that there is a rational equivalence between the means
of attack and the defense.50 In the case at bar, the petitioner's act of shooting the Ferrer brothers was not a reasonable and necessary
means of repelling the aggression allegedly initiated by the Ferrer brothers. As aptly stated by the trial court, petitioner's gun was far
deadlier compared to the stones thrown by the Ferrer brothers.51

Moreover, we stated earlier that when the Ferrer brothers allegedly threw stones at the petitioner, the latter had other less harmful
options than to shoot the Ferrer brothers. Such act failed to pass the test of reasonableness of the means employed in preventing or
repelling an unlawful aggression.

With regard to the second issue, petitioner asserts that the Court of Appeals erred in not acquitting him on the ground of lawful self-
defense.

Petitioner's argument is bereft of merit.

In resolving criminal cases where the accused invokes self-defense to escape criminal liability, this Court consistently held that where
an accused admits killing the victim but invokes self-defense, it is incumbent upon the accused to prove by clear and convincing
evidence that he acted in self-defense. 52 As the burden of evidence is shifted on the accused to prove all the elements of self-defense,
he must rely on the strength of his own evidence and not on the weakness of the prosecution.53

As we have already found, there was no unlawful aggression on the part of the Ferrer brothers which justified the act of petitioner in
shooting them. We also ruled that even if the Ferrer brothers provoked the petitioner to shoot them, the latter's use of a gun was not a
reasonable means of repelling the act of the Ferrer brothers in throwing stones. It must also be emphasized at this point that both the
trial court and the appellate court found that petitioner failed to established by clear and convincing evidence his plea of self-defense.
In this regard, it is settled that when the trial court's findings have been affirmed by the appellate court, said findings are generally
conclusive and binding upon this Court.54 In the present case, we find no compelling reason to deviate from their findings. Verily,
petitioner failed to prove by clear and convincing evidence that he is entitled to an acquittal on the ground of lawful self-defense.

On another point, while we agree with the trial court and the Court of Appeals that petitioner is guilty of the crime of Homicide for the
death of Melton in Criminal Case No. U-9610, and Frustrated Homicide for the serious injuries sustained by Servillano in Criminal
Case No. U-9608, we do not, however, concur in their ruling that petitioner is guilty of the crime of Frustrated Homicide as regards to
Michael in Criminal Case No. U-9609. We hold that petitioner therein is guilty only of the crime of Attempted Homicide.

Article 6 of the Revised Penal Code states and defines the stages of a felony in the following manner:

ART. 6. Consummated, frustrated, and attempted felonies. – Consummated felonies, as well as those which are frustrated
and attempted, are punishable.

A felony is consummated when all the elements necessary for the for its execution and accomplishment are present; and it
is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but
which, nevertheless, do not produce it by reason or causes independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all
the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous
desistance (italics supplied).

Based on the foregoing provision, the distinctions between frustrated and attempted felony are summarized as follows:

1.) In frustrated felony, the offender has performed all the acts of execution which should produce the felony as a
consequence; whereas in attempted felony, the offender merely commences the commission of a felony directly by overt acts
and does not perform all the acts of execution.

2.) In frustrated felony, the reason for the non-accomplishment of the crime is some cause independent of the will of the
perpetrator; on the other hand, in attempted felony, the reason for the non-fulfillment of the crime is a cause or accident other
than the offender's own spontaneous desistance.

In addition to these distinctions, we have ruled in several cases that when the accused intended to kill his victim, as manifested by his
use of a deadly weapon in his assault, and his victim sustained fatal or mortal wound/s but did not die because of timely medical
assistance, the crime committed is frustrated murder or frustrated homicide depending on whether or not any of the qualifying
circumstances under Article 249 of the Revised Penal Code are present. 55 However, if the wound/s sustained by the victim in such a
case were not fatal or mortal, then the crime committed is only attempted murder or attempted homicide. 56 If there was no intent to kill
on the part of the accused and the wound/s sustained by the victim were not fatal, the crime committed may be serious, less serious or
slight physical injury.57

Based on the medical certificate of Michael, as well as the testimony of the physician who diagnosed and treated Michael, the latter
was admitted and treated at the Dagupan Doctors-Villaflor Memorial Hospital for a single gunshot wound in his right shoulder caused
by the shooting of petitioner.58 It was also stated in his medical certificate that he was discharged on the same day he was admitted and
that the treatment duration for such wound would be for six to eight days only. 59 Given these set of undisputed facts, it is clear that the
gunshot wound sustained by Michael in his right shoulder was not fatal or mortal since the treatment period for his wound was short
and he was discharged from the hospital on the same day he was admitted therein. Therefore, petitioner is liable only for the crime of
attempted homicide as regards Michael in Criminal Case No. U-9609.

With regard to the appreciation of the aggravating circumstance of use of an unlicensed firearm, we agree with the trial court and the
appellate court that the same must be applied against petitioner in the instant case since the same was alleged in the informations filed
against him before the RTC and proven during the trial. However, such must be considered as a special aggravating circumstance, and
not a generic aggravating circumstance.

Generic aggravating circumstances are those that generally apply to all crimes such as those mentioned in Article 14, paragraphs No.
1, 2, 3, 4, 5, 6, 9, 10, 14, 18, 19 and 20, of the Revised Penal Code. It has the effect of increasing the penalty for the crime to its
maximum period, but it cannot increase the same to the next higher degree. It must always be alleged and charged in the information,
and must be proven during the trial in order to be appreciated.60 Moreover, it can be offset by an ordinary mitigating circumstance.

On the other hand, special aggravating circumstances are those which arise under special conditions to increase the penalty for the
offense to its maximum period, but the same cannot increase the penalty to the next higher degree. Examples are quasi-recidivism
under Article 160 and complex crimes under Article 48 of the Revised Penal Code. It does not change the character of the offense
charged.61 It must always be alleged and charged in the information, and must be proven during the trial in order to be
appreciated.62 Moreover, it cannot be offset by an ordinary mitigating circumstance.
It is clear from the foregoing that the meaning and effect of generic and special aggravating circumstances are exactly the same except
that in case of generic aggravating, the same CAN be offset by an ordinary mitigating circumstance whereas in the case of special
aggravating circumstance, it CANNOT be offset by an ordinary mitigating circumstance.

Aside from the aggravating circumstances abovementioned, there is also an aggravating circumstance provided for under Presidential
Decree No. 1866,63 as amended by Republic Act No. 8294,64 which is a special law. Its pertinent provision states:

If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be
considered as an aggravating circumstance.

In interpreting the same provision, the trial court reasoned that such provision is "silent as to whether it is generic or
qualifying."65 Thus, it ruled that "when the law is silent, the same must be interpreted in favor of the accused." 66 Since a generic
aggravating circumstance is more favorable to petitioner compared to a qualifying aggravating circumstance, as the latter changes the
nature of the crime and increase the penalty thereof by degrees, the trial court proceeded to declare that the use of an unlicensed
firearm by the petitioner is to be considered only as a generic aggravating circumstance. 67 This interpretation is erroneous since we
already held in several cases that with the passage of Republic Act. No. 8294 on 6 June 1997, the use of an unlicensed firearm in
murder or homicide is now considered as a SPECIAL aggravating circumstance and not a generic aggravating
circumstance.68 Republic Act No. 8294 applies to the instant case since it took effect before the commission of the crimes in 21 April
1998. Therefore, the use of an unlicensed firearm by the petitioner in the instant case should be designated and appreciated as a
SPECIAL aggravating circumstance and not merely a generic aggravating circumstance.

As was previously established, a special aggravating circumstance cannot be offset by an ordinary mitigating circumstance. Voluntary
surrender of petitioner in this case is merely an ordinary mitigating circumstance. Thus, it cannot offset the special aggravating
circumstance of use of unlicensed firearm. In accordance with Article 64, paragraph 3 of the Revised Penal Code, the penalty
imposable on petitioner should be in its maximum period.69

As regards the civil liability of petitioner, we deem it necessary to modify the award of damages given by both courts.

In Criminal Case No. U-9610 for Homicide, we agree with both courts that the proper amount of civil indemnity is  P50,000.00, and
that the proper amount for moral damages is P50,000.00 pursuant to prevailing jurisprudence. 70 However, based on the receipts for
hospital, medicine, funeral and burial expenses on record, and upon computation of the same, the proper amount of actual damages
should be P42,374.18, instead of P43,556.00. Actual damages for loss of earning capacity cannot be awarded in this case since there
was no documentary evidence to substantiate the same. 71 Although there may be exceptions to this rule, 72 none is availing in the
present case. Nevertheless, since loss was actually established in this case, temperate damages in the amount of  P25,000.00 may be
awarded to the heirs of Melton Ferrer. Under Article 2224 of the New Civil Code, temperate or moderate damages may be recovered
when the court finds that some pecuniary loss was suffered but its amount cannot be proved with certainty. Moreover, exemplary
damages should be awarded in this case since the presence of special aggravating circumstance of use of unlicensed firearm was
already established.73 Based on prevailing jurisprudence, the award of exemplary damages for homicide is P25,000.00.74

In Criminal Cases No. U-9608 and U-9609, we agree with both courts as to the award of actual damages and its corresponding amount
since the same is supported by documentary proof therein. The award of moral damages is also consistent with prevailing
jurisprudence. However, exemplary damages should be awarded in this case since the presence of special aggravating circumstance of
use of unlicensed firearm was already established. Based on prevailing jurisprudence, the award of exemplary damages for both the
attempted and frustrated homicide shall be P25,000.00 for each.

WHEREFORE, premises considered, the decision of the Court of Appeals dated 30 September 2004 is hereby  AFFIRMED with the
following MODIFICATIONS:

(1) In Criminal Case No. U-9609, the petitioner is found guilty of the crime of attempted homicide. The penalty imposable on the
petitioner is prision correccional under Article 51 of the Revised Penal Code.75 There being a special aggravating circumstance of the
use of an unlicensed firearm and applying the Indeterminate Sentence of Law, the penalty now becomes four (4) years and two (2)
months of arresto mayor as minimum period to six (6) years of prision correccional as maximum period. As regards the civil liability
of petitioner, the latter is hereby ordered to pay Michael Ferrer exemplary damages in the amount of P25,000.00 in addition to the
actual damages and moral damages awarded by the Court of Appeals.

(2) In Criminal Case No. U-9608, the penalty imposable on the petitioner for the frustrated homicide is prision mayor under Article 50
of the Revised Penal Code.76 There being a special aggravating circumstance of the use of an unlicensed firearm and applying the
Indeterminate Sentence Law, the penalty now becomes six (6) years of prision correccional as minimum period to twelve (12) years
of prision mayor as maximum period. As regards the civil liability of petitioner, the latter is hereby ordered to pay Servillano Ferrer
exemplary damages in the amount of P25,000.00 in addition to the actual damages and moral damages awarded by the Court of
Appeals.

(3) In Criminal Case No. U-9610, the penalty imposable on petitioner for the homicide is  reclusion temporal under Article 249 of the
Revised Penal Code.77 There being a special aggravating circumstance of the use of an unlicensed firearm and applying the
Indeterminate Sentence Law, the penalty now is twelve (12) years of prision mayor as minimum period to twenty (20) years
of reclusion temporal as maximum period. As regards the civil liability of petitioner, the latter is hereby ordered to pay Melton Ferrer
exemplary damages in the amount of P25,000.00 in addition to the actual damages and moral damages awarded by the Court of
Appeals. The actual damages likewise awarded by the Court of Appeals is hereby reduced to P42,374.18.

SO ORDERED.

B. Avoidance of greater evil (Art. 11 (4), RPC)

4. Any person who, in order to avoid an evil or injury, does an act which causes damage to another, provided that the
following requisites are present;
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid it;
Third. That there be no other practical and less harmful means of preventing it.

10. People v. Ricohermoso, G.R. No. L-30527-28

G.R. Nos. L-30527-28 March 29, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PIO RICOHERMOSO, SEVERO PADERNAL, JUAN PADERNAL, ROSENDO PERPEÑAN, MACARIO MONTEREY and
RITO MONTEREY, defendants, JUAN PADERNAL and SEVERO PADERNAL, defendants-appellants.

Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Antonio A. Torres and Trial Attorney Lolita C. Dumlao
for plaintiff-appellee.

Rogerio S. T. Cadag for defendants-appellants.

AQUINO, J.:p

Severo Padernal and Juan Padernal appealed from the decision of the Circuit Criminal Court at Lucena City, convicting them of
murder, sentencing each of them to reclusion perpetua and ordering them to pay solidarily the sum of twelve thousand pesos to the
heirs of Geminiano de Leon and to pay the costs (Criminal Case No. CCC-IX-37-Quezon or 1922-CFI-Gumaca).

In the same decision they were convicted of lesiones leves. Each one was sentenced to suffer the penalty of fifteen (15) days
of arresto menor and to pay the costs. Rosendo Perpeñan, Rito Monterey and Macario Monterey were acquitted (Criminal Case No.
CCC-IX-38-Quezon or 1923-CFI-Gumaca).

The facts disclosed in the prosecution's evidence, on which the judgment of conviction was based, are as follows:

At about nine o'clock in the morning of January 30, 1965 Geminiano de Leon, together with his thirty-three-year old common-law
wife Fabiana Rosales, his twenty-four-year old son Marianito de Leon and one Rizal Rosales, encountered Pio Ricohermoso in Barrio
Tagbacan Silangan, Catanauan, Quezon.

Geminiano owned a parcel of land in that barrio which Ricohermoso cultivated as kaingin. Geminiano asked Ricohermoso about his
share of the palay harvest. He added that he should at least be allowed to taste the palay harvested from his land. Ricohermoso
answered that Geminiano could go to his house anytime and he would give the latter palay. Geminiano rejoined that he could not get
the palay that morning because he was on his way to Barrio Bagobasin but, on his return, he would stop at Ricohermoso's house and
get the palay.

When Geminiano returned to Barrio Tagbacan Silangan, he stopped at Ricohermoso's place. It was about two o'clock in the afternoon.
Geminiano sat on a sack beside Fabiana Rosales in front of the house while Marianito stood about three meters behind his father.
A .22 caliber rifle was slung on Marianito's right shoulder. Ricohermoso stood near the door of his house while Severo Padernal was
stationed near the eaves of the house.

Geminiano asked Ricohermoso about the palay. The latter, no longer conciliatory and evidently hostile, answered in a defiant tone:
"Whatever happens, I will not give you palay." Geminiano remonstrated: "Why did you tell us to pass by your house, if you were not
willing to give the palay?"

At that juncture, as if by pre-arrangement, Ricohermoso unsheathed his bolo and approached Geminiano from the left, while Severo
Padernal (Ricohermoso's father-in-law) got an axe and approached Geminiano from the right. The latter looked up to the sexagenarian
Severo Padernal, with both hands raised and pleaded: "Mamay (Grandpa), why will you do this to us. We will not fight you." While
Geminiano was still looking up to Severo Padernal on his right, Ricohermoso walked to Geminiano's left, and, when about one meter
from him, stabbed him on the neck with his bolo. Geminiano fell face downward on the ground. While in that helpless position, he
was hacked on the back with an axe by Severo Padernal.

At that same place and time, while Severo Padernal and Ricohermoso were assaulting Geminiano de Leon, another episode was taking
place. Juan Padernal (Ricohermoso's brother-in-law and the son of Severo) suddenly embraced Marianito de Leon from behind , with
his right arm locked around Marianito's neck and his left hand pressing Marianito's left forearm. They grappled and rolled downhill
towards a camote patch. Marianito passed out. When he regained consciousness, his rifle was gone. He walked uphill, saw his
mortally wounded father Geminiano in his death throes, and embraced him. He carried Geminiano for a short distance. The fifty-one
year old Geminiano died at two o'clock on that same day.

Doctor Isabela A. Matundan certified that Geminiano de Leon sustained the following wounds:
 1. Wound, incised, neck, lateral aspect, left, cutting the carotid artery and jugular vein, 4 inches in length crosswise
with fracture of the cervical vertebra.

2. Wound, incised, back lumbar region, left, 4 ½ inches, directed anteriorly, 3 inches deep.

3. Wound, incised, waist, dorsal, 1 ½ inches, skin only.

4. Hematoma, forearm, upper third, left. (Exh. B).

Doctor Matundan said that the first wound was fatal. It could have caused instantaneous death because it was a deep wound which
pierced the carotid artery and jugular vein (Exh. C). The second wound on the back could likewise have caused the victim's death if it
had penetrated the kidney.

Doctor Matundan found that Marianito de Leon sustained multiple abrasions on the neck and abdomen and a lacerated wound on the
left foot which would heal from one to nine days even without medical treatment.

Appellants' version is that in the afternoon of January 30, 1965, when Ricohermoso refused to give any palay to Geminiano de Leon,
because the land tilled by the former was allegedly a public land, Geminiano approached Ricohermoso. When Geminiano unsheathed
his bolo, Ricohermoso met him, drew his bolo and struck Geminiano on the left side of the neck. The latter tried to parry the blow. He
was wounded in the wrist. As Geminiano turned right to flee, Ricohermoso struck him again on the left side of his body, causing him
to fall on the ground. Geminiano died on the spot due to the bleeding from the wound on his neck.

While Geminiano was being assaulted, his son Marianito tried to shoot with his rifle but Juan Padernal disabled him and wrested the
gun. Marianito suffered abrasions on the neck and other parts of the body (Pages 1 to 3, appellants' brief).

It is manifest that the defendants fashioned their version in such a way as to shift the responsibility for the killing to Ricohermoso, a
fugitive from justice who has not been tried. They also tried to exculpate Severo Padernal and to prove that Ricohermoso acted in self-
defense.

The appellants filed their brief on February 6, 1970. Later, Severo Padernal withdrew his appeal. The withdrawal was granted in the
resolution dated November 3, 1970 (Page 206, Rollo). That withdrawal strengthened the case for the prosecution or the appellee and
rendered inoperative appellants' version of the case. Severo Padernal in effect accepted as correct the prosecution's version of the
tragic incident and the trial court's finding that he conspired with Ricohermoso and his son, Juan, to kill Geminiano de Leon.

The only issue in this appeal, which concerns Juan Padernal, is whether he conspired with Ricohermoso and Severo Padernal to kill
Geminiano de Leon.

The trial court rationalized its conclusion that there was conspiracy by stating that their conduct revealed unity of purpose and a
concerted effort to encompass Geminiano's death.

Appellant Juan Padernal invokes the justifying circumstance of avoidance of a greater evil or injury (par. 4, Art. 11, Revised Penal
Code) in explaining his act of preventing Marianito de Leon from shooting Ricohermoso and Severo Padernal. His reliance on that
justifying circumstance is erroneous. The act of Juan Padernal in preventing Marianito de Leon from shooting Ricohermoso and
Severo Padernal, who were the aggressors, was designed to insure the killing of Geminiano de Leon without any risk to his assailants.

Juan Padernal was not avoiding any evil when he sought to disable Marianito. Padernal's malicious intention was to forestall any
interference in the felonious assault made by his father and brother-in-law on Geminiano. That situation is unarguably not the case
envisaged in paragraph 4 of article 11.

Juan Padernal contends that he was not a co-principal because he did not take any direct part in the killing of Geminiano, that he did
not force or induce Ricohermoso to stab Geminiano and that he allegedly did not cooperate in its commission. That contention is not
well-taken.

It should be recalled that, in the morning, Geminiano had an understanding with Ricohermoso that he (Geminiano) would return in the
afternoon to get his share of the palay harvest. Ricohermoso gave Geminiano the impression that he (Ricohermoso) was amenable to
giving Geminiano his share of the harvest. However, during the interval, Ricohermoso changed his mind. Instead of remaining
steadfast to his original intention to give Geminiano palay, Ricohermoso planned with his father-in-law, Severo Padernal, and his
brother-in-law, appellant Juan Padernal, the manner of liquidating Geminiano as to stop him from pestering Ricohermoso with
demands for a share in the harvest.

So, when Geminiano reappeared at Ricohermoso's place in the afternoon, Severo Padernal, Ricohermoso Juan Padernal, like actors in
a well-rehearsed play, performed their assigned roles with dramatic precision. Severo Padernal and Ricohermoso, one armed with an
axe and the other with a bolo, in a pincer movement, confronted Geminiano de Leon. Simultaneously with that maneuver, the thirty-
five-year old Juan Padernal embraced Marianito de Leon and prevented him from firing at Severo Padernal and Ricohermoso or from
helping his father.

Considering the trio's behavior and appellant Juan Padernal's close relationship to Ricohermoso and Severo Padernal, the ineluctable
conclusion is that he acted in conspiracy with them. He coordinated and timed his seizure of Marianito with the assault of
Ricohermoso and Severo Padernal on Geminiano. It is doubtful if the assailants could have consummated the killing of Geminiano,
without their suffering any injury, if Marianito had not been rendered helpless by appellant Juan Padernal.
The circumstances surrounding the killing of Geminiano de Leon alevosia or treachery. His hands were raised and he was pleading
for mercy with Severo Padernal, when Ricohermoso struck him on the neck with a bolo. The fact that an exchange of words preceded
the assault would not negate the treacherous character of the attack. Geminiano did not expect that Ricohermoso would renege on his
promise to give him palay and that he would adopt a bellicose attitude. Juan Padernal's role of weakening the defense, by disabling
Marianito de Leon, was part and parcel of the means of execution deliberately resorted to by the assailants to insure the assassination
of Geminiano de Leon without any risk to themselves (Par. 16, Article 14, Revised Penal Code).

Treachery was appreciated in a case where the accused fired at the victim who, with hands upraised, pleaded in a loud voice: "Do not
shoot me; investigate first what was my fault" (People vs. Barba, 97 Phil. 991. See People vs. Dagundong, 108 Phil. 682, 684, 693).

As to the other case, L-30528, the charge against the appellants was attempted murder with respect to Marianito de Leon. The trial
court convicted them lesiones leves. The case was included in this appeal apparently pursuant to the provision in section 17(1) of the
Judiciary Law that a case arising out of the same occurrence, as that in which reclusion perpetua was imposed, is appealable to this
Court.

Inasmuch as Juan Padernal did not touch upon the lesiones leves case in his brief, he, like his father Severo, seems to have acquiesced
in the correctness of the trial court's decision.

WHEREFORE, the judgment of the lower court as to appellant Juan Padernal is affirmed with costs against him.

SO ORDERED.

11. People v. Norma Hernandez, CA-G.R. No. 22553-R

C. Fulfillment of duty (Art. 11 (5), RPC)

5. Any person who acts in the fulfillment of a duty or in the lawful exercise of a right or office.

12. People v. Delima, G.R. No. L-18660

G.R. No. L-18660 December 22, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
FELIPE DELIMA, defendant-appellant.

Tancinco & Rosales for appellant.

Attorney-General Villa-Real for appellee
ROMUALDEZ, J.:

Lorenzo Napilon had escaped from the jail where he was serving sentence.

Some days afterwards the policeman Felipe Delima, who was looking for him, found him in the house of Jorge Alegria, armed with a
pointed piece of bamboo in the shape of a lance, and demanded his surrender. The fugitive answered with a stroke of his lance. The
policeman dodged, it, and to impose his authority fired his revolver, but the bullet did not hit him. The criminal ran away, without
parting with his weapon. These peace officer went after him and fired again his revolver, this time hitting and killing him.

The policeman was tried and convicted for homicide and sentenced to reclusion temporal and the accessory penalties. He appeals
from that judgment which must be reversed.

That killing was done in the performance of a duty. The deceased was under the obligation to surrender, and had no right, after
evading service of his sentence, to commit assault and disobedience with a weapon in the hand, which compelled the policeman to
resort to such an extreme means, which, although it proved to be fatal, was justified by the circumstances.lawphil.net

Article 8, No. 11, of the Penal Code being considered, Felipe Delima committed no crime, and he is hereby acquitted with the costs  de
oficio. So ordered.

13. People v. Lagata, G.R. No. L-1940-42

G.R. Nos. L-1940-42             March 24, 1949

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
IGNACIO LAGATA, defendant-appellant.

Vicente del Villar for appellant.

Assistant Solicitor General Guillermo E. Torres and Solicitor Jaime de los Angeles for appellee.

PERFECTO, J.:
The witnesses in the this case testified in substance as follows:

PROSECUTION

1. Eusebio Abria 20 single farmer Jinangutdan, Santa Rita Samar. — On October 3, 1946 he was in the provincial jail detained for
illegal possession of firearm, but his case was dismissed. Ignacio Lagata was a provincial guard Six Prisoners were then assigned to
work in the capitol's plaza; Jesus, Tipace, Eusebio Mariano the witness and Epifanio Labong. their guard ordered them to go to the
nursery to pick up gabi. Not long afterwards they were called to assemble. Epifanio Labong was missing. The nursery is near the
provincial hospital in Catbalogan. The place was grassy. Lagata ordered the five prisoner to call Labong (4-7). As Labong did not
answer Lagata ordered the five prisoners to look for him. They followed the trail. Upon reaching the nation highway, Lagata called
them. As Labong did not answer their call Lagata ordered the five to look farther for him. The five prisoners went towards the
mountain. Upon reaching a camote plantation, "I saw footprints. I called my companions. While we were all in the camote plantation I
did not know that I was shot by Ignacio Lagata. He was about four meter away from me. He fired at my left arm." At the time the
witness was standing one of his companions was at his right side three or four meter behind him. All walked almost together at the
moment because they wanted to see the footprints pointed by the witness. "At the moment that he was hit he immediately called the
attention of Ignacio Lagata 'Mano, I am wounded.' He said it is because you did not approach to me." (8-9). "When I saw that he again
manipulated the chamber of his gun I ran away. When I say that my other companion ran away, I ran also. I noticed that my left arm
was wounded. When I was already sitting by the front of the coconut tree I heard another gun shot." Tipace is already dead "I did not
see him anymore. When Ignacio Lagata passed by where I was I Requested him to take me. He brought me to the justice building
Hospital. My left arm is amputated just right at the joint between the shoulder and the arm. It is not yet completely healed." The
witness had no intention to run from Lagata. (11). Labong asked Lagata permission to gather gabi. The other prisoner did not say
anything. Lagata told them to go to the nursery. While they were gathering gabi Lagata was near them. (12). But he could not see
everybody because there was talahib growing in the place and it was tall. The witness heard three shots. The second one hit him. After
the first shot "we were all assembled." (132-14). The witness did not see Tipace being shot. "The reason as to why I ran was because I
was afraid that I might be shot again." (16). His companions were probably scared and that is why they ran. (17).

2. Mariano Ibañez, 25, married detained prisoner Zumarraga, Samar. — On October 3, 1946, he was in the provincial jail as a detained
prisoner. After breakfast, six prisoner were called: Epifanio Labong Ceferino Tipace, Eustaquio Galet, Jesus Manoso, Eusebio Abria
and the witness, Mariano Ibanez. They went to work in the plaza of the provincial jail. At about 11:00 o'clock they were taking a rest
and while they were taking a rest the witness heard Lagata inviting the prisoners to go the nursery to gather near the provincial
hospital. They scattered to get gabi. "We scarcely got three gabis when I heard Ignacio Lagata calling us to assemble." The place was
grassy were picking gabi Lagata was standing by the side of a mango tree. At the call of Lagata only five them to call for him. (19-21).
"Inasmuch as Epifanio Labong did not answer our call Ignacio Lagata ordered us to go to the mountain and look for Epifanio Labong.
Eusebio then went to the camote plantation. He foundfootprints and he called Ignacio Lagata to inform him that he saw footprints. On
account of this report of Eusebio that he saw flattened grass and that hewas unable to look for Epifanio Labong sa Ignacio Lagata filed
at him and he was hit on the left arm." He was at about three meter from Lagata. (22). The witness was at the left side of Ceferino
Tipace at about two meter from Abria.Abria said, "Mano, I am wounded." Lagata said in turn, "Come around assemble here." Abria
came to the right side of Lagata. (23). "Oncewe were already assembled there Ignacio Lagata cocked his gun and shot Ceferino Tipace
and when I saw that Ceferino Tipace was hit then I ran away because I had in mind that had i not ran I would have been shot also." At
the time Tipace was "standing and carrying with him on his left arm some gabi and when he turned to the left that was the time when
he was shot by Ignacio Lagata. The bullet penetrated from the left side of the armpit and came out from the right side of the body."
Tipace was at about two meter then from Lagata. "At about 4:00 o'clock in the afternoon of that day I returned to the provincial jail. I
did not return immediately because I was afraid." Tipace was killed. (23). One morning, Lagata gave the witness fist blow on the
abdominal region and kicked him at the back Because the pervious night the witness told the prisoners not to make much noise. "I did
not have ill-feeling because he had the right to maltreat me even if I was not at fault." (29). At the time they were searching for
Labong before the shooting they were walking in an ordinary way looking toward the ground one after another at about half a meter
from each other. Lagata was behind all of them. (31).

3. Gilberto C. Rosales 63, married, president Sanitary Division Catbalogan, Samar. — On October 17, 1946, the cadaver of Ceferino
Tipace was exhumed. (35). The witness found in it, "A gun shot wound which went through the body from the lower left axillary
region to the right shoulder." (36).

4. Eustaquio Galet, 20, married detained prisoner. — On October 3, 1946, he was one of the six prisoner who worked in the premises
of the capitol building. (38). "We went to the nursery and each one of us got gabi. The guard Ignacio Lagata was under the mango
tree. I was about ten meter away from him. It was grassy in the place where we were picking gabi. Not long after we were called by
Ignacio Lagata because we were going home already. One was missing, Epifanio Labong. Ignacio Lagata ordered us to call Epifanio
Labong but Epifanio Labong but Epifanio Labong did not answer." (39) The talahib plants growing in the place were taller than
myself. " Lagata orderedus to search for Epifanio Labong. We went around the place and then crossed the national highway and went
up the mountain until we reached tom place where cogon grass were growing. Eusebio Abria and myself saw flattened grass. We
informed Ignacio Lagata that there was a trace where a person had passed by or he may have gone that way. Then Ignacio Lagata fired
one time. While we were searching for Epifanio Labong each one of us were bent and leaning looking downward. I heard a gun shot
and that was the time when Eusebio Abria was shot and then once he was hit he called Ignacio Lagata his hand at his wound and then
got near Ignacio Lagata." (40). "Upon seeing that one of our companions was already shot without fault, I ran away and came down to
the capitol building and then went to the provincial jail and reported the matter to the sergeant of the guard." His companion then was
Jesus Mañoso. They reached the provincial jail at about 12 o'clock noon. The shooting took place at about 11:30. (41). The witness
heard Labong ask Lagata to accompany their group to the nursery to gather gabi. When he was shot Abria was bent and leaning his
body downward to the ground while Lagata was behind him. (42). The witness heard the shot that killed Ceferino Tipace. "I was
already descending near the Capitol building that was the time when I heard the shot." (43). Jesus Manoso ran away with the witness,
but Ceferino Tipaceand Mariano Ibanez remained. The treatment received by the witness from Lagata was good. (44).

5. Pedro Mayuga, 39, married, chief, Samar Provincial Hospital. — On October 3, 1946, prisoner Eusebio Abria was brought to the
hospital with a wound on the upper side of his left arm which was amputated from the shoulder joint. "The patient was at first given
resuscitating medical treatment to combat the shock caused by the hemorrhage and later the shoulder joint was disarticulated." After
his arm was cut, he was confined in the hospital until November 6. The wound must have been produced by a gun shot. There are
indications that the shot was fired at close range. Very likely around five meters. (48). There was no possibility of saving the arm
because "all the vital tissues were destroyed and the bone in all the vital parts of the tissues destroyed from outward and inward." (50).

DEFENSE

1. Andres Saludario, 49, married, nursery foreman, Catbalogan, Samar. — On October 3, 1946, he saw Lagata in the nursery guarding
six prisoners. (53-54). The prisoners were just within the premises of the nursery just beyond the mango tree. Lagata was about seven
meters from them and he was looking at them all the time. The place was grassy. The grass was about half a meter tall. (55). The
ground near the hill was covered with cogon and talahib. By the height they could cover a man in standing position. The witness heard
about the disappearance of prisoner Epifanio Labong. At the time, the witness was already far, because he had to attend to several
laborers detained at the capitol building. When he returned from the capitol building, he was informed that Epifanio Labong
disappeared. (57-59). The witness did not hear any gun shot explosion in the nursery. He saw the accused guarding the prisoners at
about 8:00 o'clock in the morning. (60). The witness stayed in the nursery until about 8:30, when he came to the capitol building. (61).

2. Ignacio Lagata, 27, married, Catbalogan. — On October 3, 1946, he accompanied the six prisoners from the provincial jail to the
plaza of the provincial capitol. He remained there until 10 o'clock in the morning, when he told them to return to the provincial jail.
The six prisoners requested him to allow them to get some gabi in the nursery. Lagata went with them to a spot around the mango tree.
(63-64). The grass in the place was knee-high. Lagata was under a mango tree about five meters from the prisoners. He was watching
all of them. They were scattered back, Epifanio Labong took advantage and escaped. "I did not discover that but when I called them to
assemble I found out that one missing. I asked the rest of the prisoners as to where Epifanio Labong was. I told the prisoners to go to
that spot. We went there and the prisoners were ahead because they know the place. (66). When we arrived at the place, we did not see
Labong and Tipace called our attention telling us that this is the place through which Epifanio Labong passed." The witness did not
see the track of Epifanio Labong but the prisoners, however, were the ones who indicated to him the place through which Epifanio
Labong passed. "I followed them. Up to above the national highway. When we reached up the place another prisoner called also our
attention telling us that here is the place through which Labong passed and so went up. When we reached above, they were already far
from here. So I told them to stop because they were already far from me. They did not heed my order to stop. Then I fired up to the
air. They scattered. I could only see two of them I also saw one of them running towards the mountain. So I fired at him." It was
Eusebio Abria, and he was at about five meters from him. "He was going up the mountain. After I fired at Eusebio Abria, I saw him
running. I just left him because I was looking for the rest. I saw also Ibanez running. He was running towards me and then around me.
I called his attention and told him to stop from running or else lie down and give up your arm. He did not heed my order. I fired at
him." (67-69). The witness saw Ibanez running before him towards the south road. He was Tipace. One minute elapsed from the time
the witness fired at Abria to the time he fired at Ibañez. The witness fired at them because he sympathizes with other policemen from
whom other prisoners escaped. (70). "Because if it so happened that a prisoner escaped under my custody, I would be the one to be put
in jail and if I cannot fire at him, I will be the one to be put in jail. "The truth is that they ran away." At the time he fired at Tipace and
Abria, they were running away. (71). "What was in my mind was that if I could overtake them and not fire at them, I would meet the
same situation as what other guards met under whose custody prisoners escaped and some of them were discharged from their duty."
Ibanez testified against the accused because the latter fired at his father-in-law. (72). One day, the accused maltreated Ibanez. He
slapped him two times. He was the only prisoner he slapped. (73). At the time they were looking for Labong, the prisoners were
walking in line one meter from one to another. The accused was near them. (77). When he fired at Abria, the latter was about five
meters from him and when he fired at Tipace, the latter was four meters from him. At the time, Tipace was running side-wise to the
accused and he could see where the accused was. His face was facing the accused. (78). When he fired at Abria, he lost hope to
recover Labong. "I was hopeless already." (80) The picking up of gabi was not part of the work of the prisoners. (81).

Appellant was charged with murder, serious physical injuries and evasion through negligence in three separate cases which have been
tried jointly.Finding him guilty, the trial court sentenced him as follows:

(a) For Murder (Case No. 809) — Reclusion Perpetua with civil interdiction for life and perpetual absolute disqualification,
indemnify the heirs of Ceferino Tipace Two Thousand Pesos (2,000) and pay the costs of this action

(b) For serious physical injuries (Case No. 810) — An indeterminate imprisonment of two (2) year and four (4) month as
minimum to four (4) year nine (9) month and ten (10) days of prison correccional as maximum and pay the cost of this
action; and

(c) For evasion through negligence (Case No. 811) — An indeterminate imprisonment of two (2) months one (1) day of
arresto mayor as minimum to one (1) year one (1) month and ten (10) days of  prison correccional and pay the costs, (p. 45,
rec.)

The evidence is conclusion to the effect that the escape of prisoner Epifanio Labong was due to the negligence of the appellant. The
six prisoner were supposed to work in the plaza of the provincial capitol and to return to jail after said work but appellants allowed
them instead to go to the nursery to gather gabi without any apparent authority to do so.

Considering that the place was grassy and tall talahib was growing therein the height of which could conceal persons in standing
position appellant must have seen immediately that it was a choice place for any prisoner that may want to escape. Such negligence of
appellant is punishable under article 224 of the Revised Penal code, and the penalty imposed by trial court is in accordance with law.

As regards the shooting of Abria and Tipace we are convinced that the facts were as narrated by the witnesses for the prosecution.
Abria was shot when by the witnesses for then prosecution. Abria was shot when he was onlythree meter away from appellant and the
latter has not even shown that Abria attempted to escape. Tipace was also shot when he was about four or fivemeter away from
appellant. The latter's allegation that Tipace was running — conveying the idea that said prisoner was in the act of escaping — appears
to be inconsistent with his own testimony to the effect that Tipace was running sidewise with his face looking towards appellant
andwith the undisputed fact that Tipace was hit near one axilla, the bullet coming out from the opposite shoulder. If Tipace's purpose
was to escape the natural thing for him to do would have to give his back to appellant.
The criminal responsibility of appellant regarding the killing of Tipace can be exacted from him on the basis of his own testimony.
The way he fired at Tipace ( whom he misnamed first as Ibañez) is described by appellant in the following words:.

He was running towards me and then around me.

I called his attention and told him to stop from running or else lie downand give up your arm. He did not heed my advice.

Inasmuch as he did not heed my advised so I fired at him.

His direction while he was running not exactly towards me but running in front of me to the left side. (69).

Explaining his reason for firing at Abria and Tipace, appellant gave the following reason: "Because I sympathize with the other
policeman from whom prisoners escaped." (70). "If it so happened that a prisoner escaped under my custody, I would be the one to be
put in jail and if I cannot fire at him I will be the one to be put in jail." (71). (Emphasis ours)

It is clear that Lagata had absolutely no reason to fire at Tipace. Lagata could have fired at him in self defense or if absolutely
necessary to avoid his escape. The record does not show that Tipace was bent on committing any act of aggression " he was running
towards and then around me". (Emphasis ours) How could anyone in his senses imagine that Tipace intended to escape by running
towards and around the very guard he was supposed to escape from?

There is no question that the escape of Labong scared appellant according to him because of the experience of other guard who were
dismissed from office or even prosecuted because of prisoners who had escaped under their custody and that it was his duty to fire
against the prisoner if he wanted to be exempt from any responsibility. Even if appellant sincerely believe, althougherroneously that in
firing the shots be acted in the performance of his official duty the circumstances of the case show that there was no necessity for him
to fire directly against the prisoners so as seriously wound one of them and kill instantaneously another. While custodians of prisoners
should necessity would authorize them to fire against them. Their is the burden of proof as to such necessity. The summary liquidation
of Prisoner under flimsy pretexts of attempts of escape, which has been and is being practiced in dictatorial system of government has
always been and is shocking to the universal conscience of humanity.

Human life is valuable albeit sacred. Cain has been the object of unrelentlesscurse for centuries and millennia and his name will
always be remembered in shame as long as there are human generation able to read the Genesis. Twenty centuries of Christianity have
not been enough to make less imperative the admonition that Thou shall not kill," uttered by greatest pundit and prophet of Israel.
Laws constitution world charters have been written to protect human life. Still it is imperative that all men be imbued with spirit of the
Sermon on the Mount that the words of the gospels be translated into reality and that their meaning fill all horizon with the eternal
aroma of encyclical love of mankind.

As recommended by the prosecuted appellants is entitled to the benefit of the mitigating circumstance of incomplete justifying
circumstance in paragraph5 of Article 11 of the Revised Penal Code. Consequently appellant shouldbe sentenced for homicide to an
indeterminate penalty of six years andone day of prision mayor to twelve years and one day of reclusion temporal and in the case of
serious physical injuries to an indeterminate penalty of four months and one day of arresto mayor to two years, four months and one
day of prision correccional.

Modified as above stated the appealed decision is affirmed with costs against appellant.

Feria, Briones, Tuason and Reyes JJ., concur.

Moran, C.J., concurs in the result.

14. Mamangun v. People, G.R. No. 149152

G.R. No. 149152             February 2, 2007

RUFINO S. MAMANGUN, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION
GARCIA, J.:

In this petition for review under Rule 45 of the Rules of Court, petitioner Rufino Mamangun y Silverio seeks the reversal of the
Decision1 dated January 19, 2001 (promulgated on February 13, 2001) of the Sandiganbayan in its Criminal Case No. 21131,
convicting him of the crime of Homicide.

The factual backdrop:

On September 12, 1994, herein petitioner, then a police officer, was charged before the Sandiganbayan with the crime of Murder,
allegedly committed, per the indicting Information,2 docketed as Criminal Case No. 21131, as follows:

That on or about the 31st day of July 1992, in the Municipality of Meycauyan, (sic) Province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the said accused Rufino S. Mamangun, a public officer, being then a Police Officer (PO2), duly
appointed as such and acting in relation to his office, armed with a gun, with intent to kill, did then and there willfully, unlawfully and
feloniously, with treachery, evident premeditation and abuse of superior strength, attack, assault and shoot one Gener M. Contreras
with the said gun, hitting the latter on his body, thereby inflicting (sic) him serious physical injuries which directly cause (sic) his
death.

CONTRARY TO LAW.

On arraignment, petitioner, as accused below, duly assisted by a counsel de oficio, entered a plea of "Not Guilty."

In the ensuing trial, the prosecution presented in evidence the testimonies of Crisanto Ayson (Ayson), an alleged eyewitness, and Dr.
Benito Caballero, then the designated Medico-Legal Officer of Bulacan who performed an autopsy on the cadaver of the victim.

For its part, the defense adduced in evidence the testimonies of the accused himself, Rufino Mamangun, his co-policemen at the
Philippine National Police (PNP), namely, PO2 Carlito Cruz, PO4 Hobert O. Diaz and Police Investigator SPO-1 Hernando B. Banez,
all assigned at the Meycauayan Police Station; and those of Lorenzo S. Abacan and Rogelio Ingco, son and son-in-law, respectively,
of Antonio Abacan, owner of the house on which rooftop the shooting of the victim took place.

It is not disputed that on July 31, 1992, at about 8:00 in the evening, in Brgy. Calvario, Meycauayan, Bulacan a certain Liberty
Contreras was heard shouting, "Magnanakaw…Magnanakaw." Several residents responded and thereupon chased the suspect who
entered the yard of Antonio Abacan and proceeded to the rooftop of Abacan’s house.

At about 9:00 o’clock that same evening, the desk officer of the Meycauayan PNP Police Station, upon receiving a telephone call that
a robbery-holdup was in progress in Brgy. Calvario, immediately contacted and dispatched to the scene the crew of Patrol Car No. 601
composed of Team Leader SPO1 Andres Legaspi, with PO2 Eugenio Aminas and herein petitioner PO2 Rufino S. Mamangun; and
Patrol Car No. 602 composed of Team Leader PO3 Sandiego San Gabriel, with PO2 Carlito Cruz and PO2 Hobert Diaz. With the
permission of Abacan, petitioner Mamangun, PO2 Diaz and PO2 Cruz went to the rooftop of the house whereat the suspect was
allegedly taking refuge.

The three policemen, i.e., petitioner, Diaz and Cruz, each armed with a drawn handgun, searched the rooftop. There, they saw a man
whom they thought was the robbery suspect. At that instance, petitioner Mamangun, who was walking ahead of the group, fired his
handgun once, hitting the man. The man turned out to be Gener Contreras (Contreras) who was not the robbery suspect.

Contreras died from the gunshot wound. The autopsy conducted by Dr. Benito B. Caballero yielded the following findings:

The cause of death was "Shock due to massive external and internal hemorrhage due to multiple gunshot wounds in the left arm side
of the thorax, penetrating the left lung and vertebral column." There were several wounds caused by one (1) bullet.

As shown on the sketch of human body attached to the Certificate of Death, and as testified on by Dr. Caballero, the bullet entered
through the "lower third of the left arm, left side of the thorax and it penetrated the left lung and vertebral column and that is where the
slug was found." From a layman’s appreciation of the sketch, the bullet entered the outer, upper left arm of the victim, exited through
the inner side of the said upper left arm, a little lower than the left armpit and the slug lodging on the victim’s back where it was
recovered at the vertebral column.3

From the foregoing admitted or undisputed facts, the prosecution and the defense presented conflicting versions as to how the fatal
shooting of Contreras by petitioner Mamangun actually happened.

According to Ayson, the lone eyewitness for the prosecution, he accompanied the three policemen (Mamangun, Diaz and Cruz) to the
rooftop of Abacan’s house. He was following petitioner Mamangun who was ahead of the group. They passed through the second-
floor door of the house to the rooftop. The roof was lighted by an incandescent bulb from an adjacent house. He was beside
Mamangun when they saw, some four to five arms-length away, a man whom he (witness) recognized as Gener Contreras. Mamangun
pointed his .45 cal. pistol at the man, who instantly exclaimed, "Hindi ako, hindi ako!," to which Mamangun replied, "Anong hindi
ako?" Before he (Ayson) could say anything, Mamangun fired his gun, hitting the man who turned out to be Contreras. He (witness)
approached the victim who was then lying on his left side unconscious. He brought down the victim and they rushed him to the
hospital where he died at about 10:00 o’clock that same evening.

The defense has its own account of what purportedly actually transpired.1awphi1.net

PO2 Mamangun, along with PO2 Cruz and PO2Diaz, denied the presence of Ayson at the rooftop during the shooting incident.
Corroborating one another, the three testified that they were the only ones at the scene of the shooting, and that it was dark. They
claimed that each of them, with Mamangun on the lead, went on separate directions around a water tank. As they met each other at the
other side of the tank, PO2 Cruz pointed to a person crouching at the edge of the roof of the garage. Thinking that the person was the
suspect they were looking for, Mamangun chased said person. They announced that they were police officers but the person continued
to run in a crouching position until Mamangun caught up with him and shouted, "Pulis. Tigil," whereupon the person suddenly
stopped, turned around, faced Mamangun, and raised a stainless steel pipe towards the latter’s head but Mamangun was able to evade
the attack. This prompted Mamangun to shoot the person on the left arm. All three claimed that it was only at this point that PO2 Cruz
and Diaz approached Contreras who told them, "Hindi ako. Hindi ako." Mamangun went near Contreras and asked, "Why did you go
to the rooftop? You know there are policemen here." Contreras was thereafter brought to the hospital where he died. After the
shooting incident, Mamangun reported the same to the desk officer, POI Filomeno de Luna, who advised him to remain in the police
station. De Luna directed Police Investigator Hernando Banez to investigate the incident. That same evening, Investigator Banez went
to the place where the shooting happened. Banez allegedly found a steel pipe about three (3) feet long on the depressed portion of the
roof.

On January 19, 2001, after due proceedings, the Sandiganbayan came out with its decision 4 finding the petitioner guilty beyond
reasonable doubt of only the crime of Homicide. In so finding, the Sandiganbayan did not appreciate the presence of the aggravating
circumstances of treachery, evident premeditation and abuse of superior strength to qualify the killing to Murder. But even as the said
court rejected the petitioner’s claim that the shooting was justified by self-defense, it nonetheless ruled that the crime of Homicide was
attended by an incomplete justifying circumstance of the petitioner having acted in the performance of his duty as a policeman, and
also appreciated in his favor the generic mitigating circumstance of voluntary surrender. Dispositively, the decision reads:

WHEREFORE, the accused, RUFINO S. MAMANGUN, is hereby found GUILTY beyond reasonable doubt of the crime of
Homicide, defined and penalized under Article 249, Revised Penal Code, and taking into account the attendance of one (1) privileged
mitigation (sic) circumstance, one generic circumstance and no aggravating circumstance, he is hereby sentenced under the
Indeterminate Sentence Law, to suffer the penalty of imprisonment of from Three (3) Years and Three (3) Months of prision
correctional as minimum, to Seven (7) years of prision mayor, as maximum, to indemnify the heirs (parents) of Gener Contreras in the
total amount of P352,025.00, and to past the costs.

SO ORDERED.

Unable to accept the judgment of conviction, petitioner is now with this Court via the present recourse alleging that the
Sandiganbayan committed reversible error in failing to apply paragraph 5, Article 11, of the Revised Penal Code, which would have
absolved him from criminal liability on the basis of his submission that the shooting in question was done in the performance of a duty
or in the lawful exercise of a right or office.

First off, petitioner insists that the shooting, which ultimately caused the demise of Contreras, was justified because he was repelling
Contreras’ unlawful attack on his person, as Contreras was then about to strike him on the head with a steel pipe.

We are not persuaded.

Well-settled is the rule that factual findings of the Sandiganbayan are conclusive upon the Court except where: (1) the conclusion is a
finding grounded entirely on speculations, surmises and conjectures; (2) the inference made is manifestly mistaken; (3) there is grave
abuse of discretion; (4) the judgment is based on misapprehension of facts and the findings of fact are premised on the absence of
evidence and are contradicted by the evidence on record.5 None of these exceptions obtains in this case.

Having admitted6 the fatal shooting of Contreras on the night of July 31, 1992, petitioner is charged with the burden of adducing
convincing evidence to show that the killing was done in the fulfillment of his duty as a policeman.

The justifying circumstance of fulfillment of duty under paragraph 5, Article II, of the Revised Penal Code may be invoked only after
the defense successfully proves that: (1) the accused acted in the performance of a duty; and (2) the injury inflicted or offense
committed is the necessary consequence of the due performance or lawful exercise of such duty.7

Concededly, the first requisite is present in this case. Petitioner, a police officer, was responding to a robbery-holdup incident. His
presence at the situs of the crime was in accordance with the performance of his duty. However, proof that the shooting and ultimate
death of Contreras was a necessary consequence of the due performance of his duty as a policeman is essential to exempt him from
criminal liability.

As we see it, petitioner’s posturing that he shot Contreras because the latter tried to strike him with a steel pipe was a mere
afterthought to exempt him from criminal liability.

We see no plausible basis to depart from the Sandiganbayan’s findings that there was no reason for the petitioner to shoot Contreras.
The latter was unarmed and had already uttered, "Hindi po ako, Hindi po ako" before the petitioner fatally shot him on the left arm.
Prosecution witness Ayson, who was then behind the petitioner when the latter shot Contreras, testified that to the victim’s utterances,
the petitioner even responded, "Anong hindi ako," and immediately shot Contreras. 8 As correctly observed by the Sandiganbayan:

Besides being self-serving (with respect to the accused) and biased (with respect to his co-policemen-witnesses), We find (1) the claim
of the accused and his co-policemen-witnesses that the victim (Contreras) attacked the said accused and (2) their seemingly "positive"
identification of the stainless steel pipe (more of a rod) as his weapon, to be of doubtful credibility, for the following reasons:

(1) We have no doubt that, as claimed by PO2 Carlito Cruz and PO2 Hobert Diaz, the three policemen appropriately
identified themselves as police officers as they started chasing the man they saw "crouching," and, as claimed by accused
PO2 Rufino Mamangun, that, as he was about to catch up with said man, he shouted, "Pulis! Tigil!" With all these
introductions and forewarnings, it is utterly incredible and contrary to human experience that, that man, later identified to be
Gener Contreras and admittedly not the person they were looking for, purportedly armed only with a stainless steel "lead"
 pipe (more of a rod) would suddenly stop, turn around and attack one of the three policemen who were chasing him, one after
the other, with drawn guns.

(2) When the victim (Gener Contreras) fell down after being shot by accused PO2 Mamangun, and as the latter went near the
fallen victim, said accused asked, "Why did you go to the rooftop. You know there are policemen here." He admits that he
did not ask the victim, "Why did you try to hit me, if you are not the one?" This admission clearly belies the claim of the
police-witnesses that Gener Contreras attacked the accused policeman with an iron pipe when he was shot, for the accused
should have asked the latter question.

(3) The location of the entry of the bullet fired by accused Mamangun which is at the outer left arm at about the bicep of the
victim and its trajectory as it penetrated his body hitting his vital organs along the way belies the claim of the accused that the
victim was facing him and had just missed his head with an iron pipe, as instead the victim must have instinctively shielded
his body with his left arm.

Moreover, petitioner’s pretense that Contreras struck him with a steel pipe is intriguing. As it is, petitioner did not report the same to
Police Investigator Banez when he reported back to the police station after the shooting incident. It was only when a lead pipe was
recovered from the scene and brought to the police station that petitioner conveniently remembered Contreras trying to hit him with a
pipe. Such a vital information could not have escaped the petitioner’s mind. We are thus inclined to believe that the alleged actuation
of Contreras, which could have justified petitioner’s shooting him, was nothing but a concocted story to evade criminal liability.
Indeed, knowing that he shot Contreras, the least that the petitioner should have done was to bring with him to the police station the
very pipe with which Contreras tried to attack him. As borne by the evidence, however, it was only after a police investigator referred
to the scene that the lead pipe surfaced.

Petitioner would likewise argue that the testimony of prosecution witness Ayson was incredible and riddled with inconsistencies.

The alleged contradictions cited by the petitioner, i.e. where the victim was shot, where he died, and as to whether Ayson left his
house after the shooting incident, are but minor details which do not affect Ayson’s credibility. We have held time and again that few
discrepancies and inconsistencies in the testimony of a witness referring to minor details and not in actuality touching upon the central
fact of the crime, do not impair his credibility. Quite the contrary, such minor inconsistencies even tend to strengthen credibility
because they discount the possibility that the testimony was rehearsed. 9

For sure, the record reveals that Ayson’s answers to the questions propounded by the defense counsel are clear and categorical. As to
where the victim died, Ayson clarified that the victim was already at the rooftop even before the arrival of the police officers. As to
why he was not able to warn Mamangun that the victim was his relative, Ayson explained that he was not able to utter any word
because when Contreras said "Hindi ako. Hindi ako," petitioner suddenly fired at the latter. 10 As to the claim that Ayson was also on
the roof, record shows that the robbery-holdup happened at around 8:00 in the evening. Before the policemen arrived, Ayson and
Contreras were already pursuing the robber.11 Ayson also testified that when the victim was shot by the petitioner, the former fell on
his left side unconscious; that he did not leave his house after the incident because he was afraid that the policemen would detain
him.12

Self-defense, whether complete or incomplete, cannot be appreciated as a valid justifying circumstance in this case. For, from the
above admitted, uncontroverted or established facts, the most important element of unlawful aggression on the part of the victim to
justify a claim of self defense was absent. Lacking this essential and primary element of unlawful aggression, petitioner’s plea of self-
defense, complete or incomplete, must have to fail.

To be sure, acts in the fulfillment of a duty, without more, do not completely justify the petitioner’s firing the fatal gunshot at the
victim. True, petitioner, as one of the policemen responding to a reported robbery then in progress, was performing his duty as a police
officer as well as when he was trying to effect the arrest of the suspected robber and in the process, fatally shoot said suspect, albeit
the wrong man. However, in the absence of the equally necessary justifying circumstance that the injury or offense committed be the
necessary consequence of the due performance of such duty, there can only be incomplete justification, a privileged mitigating
circumstance under Articles 13 and 69 of the Revised Penal Code.

There can be no quibbling that there was no rational necessity for the killing of Contreras. Petitioner could have first fired a warning
shot before pulling the trigger against Contreras who was one of the residents chasing the suspected robber.

All told, we find no reversible error committed by the Sandiganbayan in convicting the petitioner of the crime of Homicide attended
by the privileged mitigating circumstance of incomplete justifying circumstance of having acted in the performance of his duty as a
policeman and the generic mitigating circumstance of voluntary surrender.

IN VIEW WHEREOF, the instant petition is DENIED and the assailed decision of the Sandiganbayan is AFFIRMED in all respects.

No pronouncement as to costs.

SO ORDERED.

15. . People v. Dagani, G.R. No. 153875

G.R. No. 153875 August 16, 2006

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
ROLANDO DAGANI y REYES and OTELLO SANTIANO Y LEONIDA, Accused-Appellants.
 DECISION

AUSTRIA-MARTINEZ, J.:

For review before the Court is the Decision dated June 20, 2002 1 of the Court of Appeals (CA) which affirmed the Decision of the
Regional Trial Court of the City of Manila, Branch 12 (RTC), dated February 18, 1993, in Criminal Case No. 89-77467, finding the
accused-appellants Otello Santiano y Leonida (Santiano) and Rolando Dagani y Reyes (Dagani) guilty of the crime of Murder.

The accusatory portion of the Information reads:

That on or about September 11, 1989, in the City of Manila, Philippines, the said accused conspiring and confederating together and
mutually helping each other did then and there, willfully, unlawfully and feloniously, with intent to kill, evident premeditation and
treachery, attack, assault and use of personal violence upon one ERNESTO JAVIER Y FELIX by then and there shooting him with
a .38 caliber revolver, thereby inflicting upon the said ERNESTO JAVIER Y FELIX mortal gunshot wounds which were the direct
and immediate cause of his death thereafter.

CONTRARY TO LAW.2

Upon arraignment, the appellants pleaded not guilty. Trial ensued where the prosecution adduced evidence to establish the following:

At about 4:45 in the afternoon of September 11, 1989, a group composed of Ernesto Javier (Javier), Lincoln Miran (Miran), and two
other individuals had been drinking at the canteen located inside the compound of the Philippine National Railways (PNR) along C.M.
Recto Avenue, Tondo, Manila. All of a sudden, appellants, who were security officers of the PNR and covered by the Civil Service
Rules and Regulations, entered the canteen and approached the group. Appellant Dagani shoved Miran, causing the latter to fall from
his chair. Dagani then held Javier while Santiano shot Javier twice at his left side, killing the latter.

The defense proceeded to prove their version of the facts:

Appellants testified that they were ordered by their desk officer to investigate a commotion at the canteen. Upon reaching the place,
Santiano ordered his co-accused, Dagani, to enter, while the former waited outside.

Dagani approached Javier who had been striking a bottle of beer on the table. Javier then pulled out a .22 caliber revolver and
attempted to fire at Dagani, but the gun failed to go off. Then suddenly, while outside the canteen, Santiano heard gunfire and, from
his vantage point, he saw Javier and Dagani grappling for a .22 caliber gun which belonged to Javier. During the course of the
struggle, the gun went off, forcing Santiano to fire a warning shot. He heard Javier’s gun fire again, so he decided to rush into the
canteen. Santiano then shot Javier from a distance of less than four meters.

Appellants invoked the justifying circumstances of self-defense and lawful performance of official duty as PNR security officers.
They also argued that the prosecution failed to establish treachery and conspiracy.

The RTC rendered its Decision, the dispositive portion of which reads:

WHEREFORE, finding both accused Otello Santiano y Leonida and Rolando Dagani y Reyes guilty beyond reasonable doubt of the
crime of Murder defined and punished under Art. 248, RPC, with the presence of the mitigating circumstance of voluntary surrender
and granting them the benefit of [the] Indeterminate Sentence Law, both accused are hereby sentenced to each suffer an Indeterminate
prison term of TEN (10) YEARS and ONE (1) DAY of prision mayor as minimum, to EIGHTEEN (18) YEARS and ONE (1) DAY
of reclusion temporal x x x.

Both accused are hereby ordered to indemnify the heirs of the victim the sum of P50,000.00 as death indemnity, the sum
of P31,845.00 as funeral and burial expenses, the sum of

P30,000.00 as and for [sic] attorney’s fees and the further sum of P1,000.00 per appearance of counsel.

Both accused shall be credited with the full extent of their preventive imprisonment. Both accused are hereby committed to the
Director, National Penitentiary, Muntinlupa, Metro Manila for service of Sentence.

SO ORDERED.3

In brief, the RTC held that appellants failed to prove that Javier attempted to squeeze the trigger of the .22 caliber gun when he
pointed it at Dagani; that during the course of the struggle for the possession of the .22 caliber gun, the danger to the life of the
accused ceased to be imminent; that in grappling for the weapon, Dagani "controlled" the hands of Javier and pushed them away from
his body; that the appellants failed to produce the two empty shells as physical evidence of the gunfire allegedly caused by Javier; that
no points of entry or bullet markings on the walls of the canteen were shown; that, in light of these findings, no unlawful aggression
was present on the part of the victim; that the appellants failed to prove that they were on official duty at the time of the incidence;
that, since it was not established that Javier actually fired his gun, the injury inflicted upon him cannot be regarded as a necessary
consequence of the due performance of an official duty; that the appellants were acting in conspiracy; that the qualifying circumstance
of treachery attended the killing, considering that Javier had been shot while his hands were being held by Dagani and as his body was
out of balance and about to fall; and that the mitigating circumstance of voluntary surrender should be appreciated in favor of the
appellants.

The appellants appealed to the CA and assigned the following errors:

 I

THE LOWER COURT GRAVELY ERRED IN NOT APPRECIATING SELF DEFENSE ON THE PART OF THE ACCUSED.

II

THE LOWER COURT ERRED WHEN IT FAILED TO CONSIDER THE FACT THAT THE ACCUSED-APPELLANTS WERE
IN LAWFUL PERFORMANCE OF AN OFFICIAL DUTY.

III

THE LOWER COURT GRAVELY AND SERIOUSLY ERRED IN RULING THAT THERE WAS CONSPIRACY.

IV

THE LOWER COURT GRAVELY ERRED IN FINDING THAT THE PROSECUTION WAS ABLE TO ESTABLISH BEYOND
REASONABLE DOUBT THAT THE ACCUSED ARE GUILTY OF MURDER.4

The CA rendered its Decision, the dispositive portion of which states:

WHEREFORE, the appealed judgment of conviction is MODIFIED. Appellants are hereby sentenced to reclusion perpetua. The
award for attorney’s fees and appearance fees for counsel are hereby deleted. In all the other aspects, the appealed decision is
maintained.

Let the entire records of the case be elevated to the Supreme Court for the mandated review.

SO ORDERED.5

The CA affirmed the findings of fact as well as the salient portions of the RTC Decision, but deleted the award of attorney’s fees and
the per appearance fees of counsel since, the

CA reasoned, the instant case is criminal in nature which is under the control of the public prosecutor, and, additionally, the RTC
failed to justify this award in the body of its Decision. And last, the CA found that the RTC erroneously applied the Indeterminate
Sentence Law since the penalty for Murder, at the time of the incident, was reclusion perpetua which is an indivisible penalty to be
imposed in its entirety, regardless of the attending mitigating circumstance of voluntary surrender.

Appellants are now before this Court submitting for resolution the same matters argued before the CA. Through their Manifestation
dated February 11, 2003,6 appellants prayed to dispense with the filing of additional briefs.

As of date, the records show that despite the efforts exerted by the surety and the responsible law officers to locate the appellants, the
latter could not be found and have jumped bail.7

The appeal is partly meritorious.

Appellants argue that the courts a quo misappreciated the facts and erred in finding that there was no unlawful aggression on the part
of the victim. They insist that the victim, Javier, had been armed with a revolver at the time he was struggling with appellant Dagani;
that the former "could have easily killed the latter;" that, given the fact that Javier had been drinking, "it is quite probable for Javier to
act harshly and aggressively towards

peace officers such as the accused;"8 and that Javier actually fired three shots from his .22 caliber gun.9

We are not convinced.

When self-defense is invoked, the burden of evidence shifts to the accused to show that the killing was legally justified. Having owned
the killing of the victim, the accused should be able to prove to the satisfaction of the Court the elements of self-defense in order to
avail of this extenuating circumstance. He must discharge this burden by clear and convincing evidence. When successful, an
otherwise felonious deed would be excused, mainly predicated on the lack of criminal intent of the accused. Self-defense requires that
there be (1) an unlawful aggression by the person injured or killed by the offender, (2) reasonable necessity of the means employed to
prevent or repel that unlawful aggression, and (3) lack of sufficient provocation on the part of the person defending himself. All these
conditions must concur.10

Unlawful aggression, a primordial element of self-defense, would presuppose an actual, sudden and unexpected attack or imminent
danger on the life and limb of a person – not a mere threatening or intimidating attitude 11 – but most importantly, at the time the
defensive action was taken against the aggressor. 12 To invoke self-defense successfully, there must have been an

unlawful and unprovoked attack that endangered the life of the accused, who was then forced to inflict severe wounds upon the
assailant by employing reasonable means to resist the attack. 13

In the instant case, the assertions that it was "quite probable" that Javier, during the course of the struggle for the firearm, "could have
easily killed" the appellants are uncertain and speculative. There is aggression in contemplation of the law only when the one attacked
faces real and immediate threat to one’s life. The peril sought to be avoided must be imminent and actual, not just speculative. 14
To sum up the matter, we quote the findings of the CA:

The defense was unable to prove that there was unlawful aggression on the part of Javier. They were unable to present evidence that
the victim actually fired his gun. No spent shells from the .22 caliber pistol were found and no bullets were recovered from the scene
of the incident. Javier also tested negative for gunpowder residue. Moreover, the trial court found appellant Dagani’s account of the
incident to be incredible and self-serving. In sum, the defense presented a bare claim of self-defense without any proof of the existence
of its requisites.15

Even if it were established that Javier fired his gun as the appellants so insist, the imminence of the danger to their lives had already
ceased the moment Dagani held down the victim and grappled for the gun with the latter. After the victim had been thrown off-
balance, there was no longer any unlawful aggression

that would have necessitated the act of killing. 16 When an unlawful aggression that has begun no longer exists, the one who resorts to
self-defense has no right to kill or even to wound the former aggressor. 17 When Javier had been caught in the struggle for the
possession of the gun with appellant Dagani, the grave peril envisaged by appellant Santiano, which impelled him to fire at the victim,
had then ceased to a reasonable extent,18 and undoubtedly, Santiano went beyond the call of self-preservation when he proceeded to
inflict the excessive and fatal injuries on Javier, even when the alleged unlawful aggression had already ceased. 19

The second element of self-defense demands that the means employed to neutralize the unlawful aggression are reasonable and
necessary. It is settled that reasonable necessity of the means employed does not imply material commensurability between the means
of attack and defense. What the law requires is rational equivalence. 20 The circumstances in their entirety which surround the
grappling of the firearm by Dagani and Javier, such as the nature and number of gunshot wounds sustained by the victim 21 which
amounted to two fatal wounds,22 that Dagani was able to restrain the hands of Javier and push

them away from his body,23 that Dagani was larger than Javier and had finished Special Weapons and Tactics (SWAT) hand-to-

hand combat training,24 and Javier, as admitted by the appellants, was inebriated at the time of the incident, 25 do not justify appellant
Santiano’s act of fatally shooting the victim twice.26

All things considered, the appellants’ plea of self-defense is not corroborated by competent evidence. The plea of self-defense cannot
be justifiably entertained where it is not only uncorroborated by any separate competent evidence but is in itself extremely
doubtful.27 Whether the accused acted in self-defense is a question of fact. Like alibi, the affirmative defense of self-defense is
inherently weak because, as experience has demonstrated, it is easy to fabricate and difficult to disprove. 28 This Court, therefore, finds
no reversible error on the part of the courts a quo in rejecting the claim of self-defense.

Appellants set up the defense that they were in the lawful performance of their official duties. They specifically aver that they had
been ordered by their desk officer to proceed to the canteen in response to a telephone call stating that there was a group "creating
trouble;" that they were in the call of duty and exercising their functions and responsibilities as members of the PNR Civil Security
Office to preserve peace and order and

protect the lives and property in the PNR Compound;29 and that, invoking jurisprudence, as security officers in the performance of
duty, like the police, they must stand their ground and overcome the opponent, and the force that may be exerted must differ from that
which ordinarily may be offered in self-defense.30

Article 11 of the Revised Penal Code provides that a person who acts in the fulfillment of a duty or in the lawful exercise of a right or
office does not incur any criminal liability. Two requisites must concur before this defense can prosper: 1) the accused must have
acted in the performance of a duty or in the lawful exercise of a right or office; and 2) the injury caused or the offense committed
should have been the necessary consequence of such lawful exercise.31 These requisites are absent in the instant case.

As found by the CA:

The defense failed to prove that the security officers were in fact on duty at the time they were at the canteen. The trial court gave
weight to the fact that the appellants were unable to submit their daily time records to show that they were on duty at the time.
Appellants’ assertion that they were ordered to go on 24-hour duty was belied by PNR Security Investigator Rolando Marinay’s
testimony that PNR security officers work in two 12-hour shifts, from 7:00 a.m. to 7:00 p.m. and from 7:00 p.m. to 7:00 a.m.

Moreover, since it was not established that Javier fired his gun, the injury inflicted upon him cannot be regarded as a necessary
consequence of appellants’ due performance of an official duty.32

As stated, considering that the imminent or actual danger to the life of the appellants had been neutralized when Dagani grappled with
Javier and restrained his hands; that Javier had been thrown off-balance; that Dagani had been specially trained for these purposes; and
that Javier had been drinking immediately prior to the scuffle, this Court holds that the fatal injuries that appellant Santiano inflicted
on the victim cannot be deemed to be necessary consequences of the performance of his duty as a PNR security officer. 33 While it is
recognized that police officers – if indeed the appellants can be likened to them – must stand their ground and overwhelm their
opponents, in People v. Ulep,34 this Court counseled:

The right to kill an offender is not absolute, and may be used only as a last resort, and under circumstances indicating that the offender
cannot otherwise be taken without bloodshed. The law does not clothe police officers with authority to arbitrarily judge the necessity
to kill. It may be true that police officers sometimes find themselves in a dilemma when pressured by a situation where an immediate
and decisive, but legal, action is needed. However, it must be stressed that the judgment and discretion of police officers in the
performance of their duties must be exercised neither capriciously nor oppressively, but within reasonable limits. In the absence of a
clear and legal provision to the contrary, they must act in conformity with the dictates of a sound discretion, and within the spirit and
purpose of the law. We cannot countenance trigger-happy law enforcement officers who indiscriminately employ force and violence
upon the persons they are apprehending. They must always bear in mind that although they are dealing with criminal elements against
whom society must be protected, these criminals are also human beings with human rights.35

But this Court cannot agree with the findings of the courts a quo that the appellants were in conspiracy.

The RTC simply held:

The Information cited conspiracy of the accused. Since it can also be committed thru simultaneous/concerted action and considering
that Javier was shot by Santiano while being held by Dagani, under jurisprudence, conspiracy is present.36

The tenor of the factual findings of the CA is equally unsatisfactory:

Moreover, the facts show that Javier was shot by appellant Santiano as he was being subdued by appellant Dagani. The trial court held
that the manner of the attack was indicative of a joint purpose and design by the appellants.37

Courts must judge the guilt or innocence of the accused based on facts and not on mere conjectures, presumptions, or
suspicions.38 Other than the plain fact that the victim had been shot by one of the accused while being held by a co-accused, there is no
other evidence that the appellants were animated by the same purpose or were moved by a previous common accord. It follows that
the liability of the accused must be determined on an individual basis. While no formal agreement is necessary to establish conspiracy
because conspiracy may be inferred from the circumstances attending the commission of the crime, yet, conspiracy must be
established by clear and convincing evidence.39

This Court has held that even if all the malefactors joined in the killing, such circumstance alone does not satisfy the requirement of
conspiracy because the rule is that

neither joint nor simultaneous action is per se sufficient proof of conspiracy. Conspiracy must be shown to exist

as clearly and convincingly as the commission of the offense itself. 40 Thus, even assuming that Javier was simultaneously attacked,
this does not prove conspiracy. No evidence was presented to show that the appellants planned to kill Javier or that Dagani’s overt acts
facilitated that alleged plan. The prosecution did not establish that the act of Dagani in trying to wrestle the gun from Javier and in the
process, held the latter’s hands, was for the purpose of enabling Santiano to shoot at Javier. The prosecution had the burden to show
Dagani’s intentional participation to the furtherance of a common design and purpose 41 or that his action was all part of a scheme to
kill Javier. That Dagani did not expect Santiano to shoot the victim is established when Santiano testified that Dagani "seem[ed] to be
shocked, he was standing and looking at the victim" as Javier gradually fell to the ground. 42 And since Dagani’s conviction can only
be sustained if the crime had been carried out through a conspiracy duly proven, in view of the failure of the prosecution to discharge
that burden, this Court is constrained to acquit him.

And this Court cannot say that treachery attended the attack. The RTC declared:

[T]he Court believes that Javier was shot while his body was out-balanced and about to fall to the right side and while his hands were
being held by Dagani. Javier, therefore, was shot at when he has no means to defend himself, hence, the killing was attended by the
qualifying circumstance of treachery.43

which the CA affirmed as follows:

The findings of the court a quo clearly showed that Javier was being held down and could not effectively use his weapon. As such, the
trial court held that Javier could not be considered to be an armed man as he was being held down and was virtually helpless.

It has been held that when an assault is made with a deadly weapon upon an unarmed and unsuspecting victim who [was] given no
immediate provocation for the attack and under conditions which made it impossible for him to evade the attack, flee or make [a]
defense, the act is properly qualified as treachery, and the homicide resulting therefrom is classified as murder. 44 x x x

Treachery under par.16 of Article 14 of the Revised Penal Code is defined as the deliberate employment of means, methods or forms
in the execution of a crime against persons which tend directly and specially to insure its execution, without risk to the offender
arising from the defense which the intended victim might raise. Treachery is present when two conditions concur, namely: (1) that the
means, methods and forms of execution employed gave the person attacked no opportunity to defend himself or to retaliate; and (2)
that such means, methods and forms of execution were deliberately and consciously adopted by the accused without danger to his
person.45

This Court has held that the suddenness of the attack, the infliction of the wound from behind the victim, the vulnerable position of the
victim at the time the attack was made, or the fact that the victim was unarmed, do not by themselves render the

attack as treacherous.46 This is of particular significance in a case of an instantaneous attack made by the accused whereby he gained
an advantageous position over the victim when the latter accidentally fell and was rendered defenseless. 47 The means employed for the
commission of the crime or the mode of attack must be shown to have been consciously or deliberately adopted by the accused to
insure the consummation of the crime and at the same time eliminate or reduce the risk of retaliation from the intended victim. 48 For
the rules on treachery to apply, the sudden attack must have been preconceived by the accused, unexpected by the victim, and without
provocation on the part of the latter.49 Treachery is never presumed. Like the rules on conspiracy, it is required that the manner of
attack must be shown to have been attended by treachery as conclusively as the crime itself.50

The prosecution failed to convincingly prove that the assault by the appellants had been deliberately adopted as a mode of attack
intended to insure the killing of Javier and without the latter having the opportunity to defend himself. Other than the bare fact that
Santiano shot Javier while the latter had been struggling with Dagani over the possession of the .22 caliber gun, no other fact had been
adduced to show that the appellants consciously planned or predetermined the methods to insure the commission of the crime, nor had
the risk of the victim to

retaliate been eliminated during the course of the struggle over the weapon, as the latter, though struggling, had not been

completely subdued. As already stated, this Court must emphasize that the mere suddenness of the attack, or the vulnerable position of
the victim at the time of the attack, or yet even the fact that the victim was unarmed, do not by themselves make the attack
treacherous.51 It must be shown beyond reasonable doubt that the means employed gave the victim no opportunity to defend himself or
retaliate, and that such means had been deliberately or consciously adopted without danger to the life of the accused. 52

For these reasons, the Court is inclined to look upon the helpless position of Javier as merely incidental to the attack, and that the
decision to shoot Javier was made in an instant.53

Considering the rule that treachery cannot be inferred but must be proved as fully and convincingly as the crime itself, any doubt as to
its existence must be resolved in favor of Santiano. Accordingly, for failure of the prosecution to prove treachery to qualify the killing
to Murder, appellant Santiano may only be convicted of Homicide. 54 The penalty, therefore, under Article 249 of the Revised Penal
Code, as amended, is reclusion temporal.

The Office of the Solicitor General is correct in that the courts a quo failed to consider the aggravating circumstance of

taking advantage of official position under Article 14 (1) of the Revised Penal Code, since the accused, a PNR security officer

covered by the Civil Service, committed the crime with the aid of a gun he had been authorized to carry as such. 55 Considering that the
mitigating circumstance of voluntary surrender, as duly appreciated by the courts a quo, shall be offset against the aggravating
circumstance of taking advantage of official position, the penalty should be imposed in its medium period, pursuant to Article 64 (4)
of the aforesaid Code.

Applying the Indeterminate Sentence Law, the sentence of appellant Santiano will consist of a minimum that is anywhere within the
full range of prision mayor, and a maximum which is anywhere within reclusion temporal in its medium period. This Court hereby
fixes it to be from eight (8) years and one (1) day of prision mayor as minimum, to fourteen (14) years, eight (8) months, and one (1)
day of reclusion temporal, as maximum.

As to the award of damages, prevailing jurisprudence entitles the heirs of the deceased to the amount of P50,000.00 as civil indemnity
for the death of the victim without need of any evidence or proof of damages.56

The CA erred in deleting the attorney’s fees and per appearance fees for lack of factual basis. Although the CA is correct in noting that
the RTC failed to justify these awards in the body of its Decision, this appeal opens the entire case for review and, accordingly, the
records show that the foregoing

amounts had been stipulated by the parties,57 thereby dispensing with the need to prove the same.58

As to moral damages, however, the widow of the victim, Erlinda Javier, is not entitled to the same. She did not testify on any mental
anguish or emotional distress which she suffered as a result of her husband’s death. No other heirs of Javier testified in the same
manner.59

Inasmuch as the aggravating circumstance of taking advantage of official position attended the killing, the Court awards exemplary
damages in the amount of P25,000.00 in accordance with Articles 2230 and 2234 of the Civil Code and prevailing jurisprudence. 60

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 15304 dated June 20, 2002 is MODIFIED. Appellant
Otello Santiano y Leonida is found GUILTY beyond reasonable doubt of Homicide and is sentenced to suffer the penalty of an
indeterminate sentence from eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months, and
one (1) day of reclusion temporal as maximum. Appellant Santiano is further ordered to pay the heirs of the victim the amounts
of P50,000.00 as death indemnity, P31,845.00 as funeral and burial expenses, P25,000.00 as exemplary damages, P30,000.00 as
attorney’s fees and P1,000.00

per appearance of counsel. Appellant Santiano shall be credited with the full extent of his preventive imprisonment.

Appellant Rolando Dagani y Reyes is hereby ACQUITTED.

SO ORDERED.

D. Obedience to a lawful order of a superior (Art. 11 (6), RPC)

6. Any person who acts in obedience to an order issued by a superior for some lawful purpose.
 16. People v. Beronilla, G.R. No. L-4445

G.R. No. L-4445             February 28, 1955

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MANUEL BERONILLA, FILIPINO VELASCO, POLICARPIO PACULDO, and JACINTO ADRIATICO, defendants-
appellants.

Agripino A. Brillantes, Valera, Eufemio and Bernardez for appellants.

Prospero C. Sanidad and Claro M. Recto for defendant.
Office of the Solicitor General Juan R. Liwag and Solicitor Jaime R. de los Angeles and Martiniano P. Vivo for appellee.

REYES, J.B.L., J.:

This is an appeal by accused Manuel Beronilla, Policarpio Paculdo, Filipino Velasco, and Jacinto Adriatico from the judgment of the
Court of First Instance of Abra (Criminal Case No. 70) convicting them of murder for the execution of Arsenio Borjal in the evening
of April 18, 1945, in the town of La Paz , Province of Abra.

Arsenio Borjal was the elected mayor of La Paz, Abra, at the outbreak of war, and continued to serve as Mayor during the Japanese
occupation, until March 10, 1943, when he moved to Bangued because of an attempt upon his life by unknown persons. On December
18, 1944, appellant Manuel Beronilla was appointed Military Mayor of La Paz by Lt. Col. R. H. Arnold, regimental commander of the
15th Infantry, Philippine Army, operating as a guerrilla unit in the province of Abra. Simultaneously with his appointment as Military
Mayor, Beronilla received copy of a memorandum issued by Lt. Col. Arnold to all Military Mayors in Northern Luzon, authorizing
them "to appoint a jury of 12 bolomen to try persons accused of treason, espionage, or the aiding and abetting (of ) the enemy"
(Exhibit 9). He also received from the Headquarters of the 15th Infantry a list of all puppet government officials of the province of
Abra (which included Arsenio Borjal, puppet mayor of La Paz), with a memorandum instructing all Military Mayors to investigate
said persons and gather against them complaints from people of the municipality for collaboration with the enemy (Exhibit 12-a).

Sometime in March, 1945, while the operations for the liberation of the province of Abra were in progress, Arsenio Borjal returned to
La Paz with his family in order to escape the bombing of Bangued. Beronilla, pursuant to his instructions, placed Borjal under custody
and asked the residents of La Paz to file complaints against him. In no time, charges of espionage, aiding the enemy, and abuse of
authority were filed against Borjal; a 12-man jury was appointed by Beronilla, composed of Jesus Labuguen as chairman, and
Benjamin Adriatico, Andres Afos, Juanito Casal, Santiago Casal, Benjamin Abella, Servillano Afos, Mariano Ajel, Felimon
Labuguen, Felix Murphy, Pedro Turqueza, and Delfin Labuguen as members; while Felix Alverne and Juan Balmaceda were named
prosecutors, Policarpio Paculdo as clerk of the jury, and Lino Inovermo as counsel for the accused. Later, Atty. Jovito Barreras
voluntarily appeared and served as counsel for Borjal. Sgt. Esteban Cabanos observed the proceedings for several days upon
instructions of Headquarters, 15th Infantry. The trial lasted 19 days up to April 10, 1945; the jury found Borjal guilty on all accounts
and imposed upon him instruction from his superiors. Mayor Beronilla forwarded the records of the case to the Headquarters of the
15th Infantry for review. Said records were returned by Lt. Col. Arnold to Beronilla on April 18, 1945 with the following instructions:

HEADQUARTERS 3RD MILITARY DISTRICT

15TH INFANTRY, USAFIP
In the Field

16 April 1945

Msg. No. 337

Subject: Arsenio Borjal, Charges Against
To: Military Mayor of La Paz, Abra.

1. Returned herewith are the papers on the case of Arsenio Borjal.

2. This is a matter best handled by your government and whatever disposition you make of the case is hereby approved.

(Sgd.) R. H. ARNOLD
Lieut.-Colonel, 15th Inf., PA
Commanding

Received April 18, 1945, 10:35 a.m.

(Sgd.) MANUEL BERONILLA

Military Mayor, La Paz, Abra

(Exhibit 8, 8-a)

and on the night of the same day, April 18, 1945, Beronilla ordered the execution of Borjal. Jacinto Adriatico acted as executioner and
Antonio Palope as grave digger. Father Luding of the Roman Catholic Church was asked to administer the last confession to the
prisoner, while Father Filipino Velasco of the Aglipayan Church performed the last rites over Borjal's remains. Immediately after the
execution, Beronilla reported the matter to Col. Arnold who in reply to Beronilla's report, sent him the following message:
 HEADQUARTERS 3RD MILITARY DISTRICT
15TH INFANTRY, USAFIP
In the Field

22 April 1945

Msg. No. 398

Subject: Report and information Re Borjal case
To: Military Mayor Beronilla

1. Received your letter dated 18 April 1945, subject, above.

2. My request that you withhold action in this case was only dictated because of a query from Higher Headquarters regarding
same. Actually, I believe there was no doubt as to the treasonable acts of the accused Arsenio Borjal and I know that your
trial was absolutely impartial and fair. Consequently, I Can only compliment you for your impartial independent way of
handling the whole case.

(Sgd.) R. H. ARNOLD
Lieut.-Colonel, 15th Inf., PA
Commanding

Received April 26, 1947 7:00 a.m.

(Sgd.) MANUEL BERONILLA

Military Mayor, La Paz, Abra

(Exhibit 21, 21-a)

Two years thereafter, Manuel Beronilla as military mayor, Policarpio Paculdo as Clerk of the jury, Felix Alverne and Juan Balmaceda
as prosecutors, Jesus Labuguen, Delfin Labuguen, Filemon Labuguen, Servillano Afos, Andres Afos, Benjamin Adriatico, Juanito
Casel, Santiago Casel, Mariano Ajel, Felix Murphy, Benjamin Abella, and Pedro Turqueza as members of the jury, Jacinto Adriatico
as executioner, Severo Afos as grave digger, and Father Filipino Velasco as an alleged conspirator, were indicted in the Court of First
Instance of Abra for murder, for allegedly conspiring and confederating in the execution of Arsenio Borjal. Soon thereafter, the late
President Manuel A. Roxas issued Executive Proclamation No. 8, granting amnesty to all persons who committed acts penalized under
the Revised Penal Code in furtherance of the resistance to the enemy against persons aiding in the war efforts of the enemy. Defendant
Jesus Labuguen, then a master sergeant in the Philippine Army, applied for and was granted amnesty by the Amnesty Commission,
Armed Forces of the Philippines (Records, pp. 618-20). The rest of the defendant filed their application for amnesty with the Second
Guerrilla Amnesty Commission, who denied their application on the ground that the crime had been inspired by purely personal
motives, and remanded the case to the Court of First Instance of Abra for trial on the merits.

Upon motion of defense counsel, the case against defendant Jesus Labuguen, who had been granted amnesty by the Amnesty
Commission of the Armed Forces of the Philippines, was ordered provisionally dismissed: defendant Juan Balmaceda was discharged
from the information so that he might be utilized as state witness, although actually he was not called to testify; while the case against
defendants Antonio Palope (the grave digger) and Demetrio Afos( a boloman) was dismissed for lack of sufficient evidence.

Trial proceeded against the rest of the defendants; and on July 10, 1950, the Court below rendered judgment, acquitting the members
of the jury and the grave digger Antonio Palope on the ground that they did not participated in the killing of Arsenio Borjal; acquitting
defendants Jesus Labuguen, Felix Alverne, Severo Afos, and Lauro Parado upon insufficiency of evidence to establish their
participation in the crime; but convicting defendants Manuel Beronilla, Policarpio Paculdo, Filipino Velasco, and Jacinto Adriatico as
conspirator and co-principals of the crime of murder, and sentencing them to suffer imprisonment of from 17 years, 4 months and 1
day of reclusion temporal to reclusion perpetua, to indemnify the heirs of Arsenio Borjal jointly and severally in the amount of
P4,000 with subsidiary imprisonment in case of insolvency, and each to pay one fourth of the costs. In convicting said defendants the
Court a quo found that while the crime committed by them fell within the provisions of the Amnesty Proclamation, they were not
entitled to the benefits thereof because the crime was committed after the expiration of the time limit fixed by the amnesty
proclamation;: i.e., that the deceased Arsenio Borjal was executed after the liberation of La Paz, Abra.

In view of the sentence meted by the Court below, the accused Beronilla, Paculdo, Velasco and Adriatico appealed to this Court.

The records are ample to sustain the claim of the defense that the arrest, prosecution and trial of the late Arsenio Borjal were done
pursuant to express orders of the 15th Infantry Headquarters. (Exhibit 9 and 12-a), instructing all military mayors under its jurisdiction
to gather evidence against puppet officials and to appoint juries of at least 12 bolomen to try the accused and find them guilty by two
thirds vote. It is to be noted that Arsenio Borjal was specifically named in the list of civilian officials to be prosecuted (Exhibit 12-b).

In truth, the prosecution does not seriously dispute that the trial and sentencing of Borjal was done in accordance with instructions of
superior military authorities, altho it point to irregularities that were due more to ignorance of legal processes than personal animosity
against Borjal. The state, however, predicates its case principally on the existence of the radiogram Exhibit H from Col. Volckmann,
overall area commander, to Lt. Col. Arnold, specifically calling attention to the illegality of Borjal's conviction and sentence, and
which the prosecution claims was known to the accused Beronilla. Said message is as follows:

"Message:

VOLCKMANN TO ARNOLD CLN UNDERSTAND THAT MUNICIPALITIES OF ABRA HAVE ORGANIZED JURY
SYSTEM PD BELIEVE THAT THIS BODY IS ILLEGAL AND CANNOT TRY PUNISHMENTS THEREOF PD
SPECIFIC INSTANCE IS BROUGHT TO YOUR ATTENTION FRO PROPER AND IMMEDIATE ACTION ON ONE
 ARSENIO BORJAL OF LA PAZ WHO HAS BEEN TRIED CMA CONVICTED AND SENTENCED TO BE HANGED
PD REPORT ACTION TAKEN BY YOU ON THIS MATTER PD MSG BEGINS CLN"

(EXH. H)

The crucial question thus becomes whether or not this message, originally sent to Arnold's quarters in San Esteban, Ilocos Sur, was
relayed by the latter to appellant Beronilla in La Paz, Abra, on the morning of April 18, 1945, together with the package of records of
Borjal's trial that was admittedly returned to and received by Beronilla on that date, after review thereof by Arnold (Exhibit 8-8-a).
Obviously, if the Volckmann message was known to Beronilla, his ordering the execution of Borjal on the night of April 18, 1945 can
not be justified.

We have carefully examined the evidence on this important issue, and find no satisfactory proof that Beronilla did actually receive the
radiogram Exhibit H or any copy thereof. The accused roundly denied it. The messenger, or "runner", Pedro Molina could not state
what papers were enclosed in the package he delivered to Beronilla on that morning in question, nor could Francisco Bayquen (or
Bayken), who claimed to have been present at the delivery of the message, state the contents thereof.

The only witness who asserted that Beronilla received and read the Volckmann message, Exhibit H, was Rafael Balmaceda, a relative
of Borjal, who claimed to have been, as Beronilla's bodyguard, present at the receipt of the message and to have read it over
Beronilla's shoulder. This testimony, however, can not be accorded credence, for the reason that in the affidavit executed by this
witness before Fiscal Antonio of Abra (Exhibit 4), Balmaceda failed to make any mention of the reading, or even the receipt, of the
message. In the affidavit, he stated:

Q. In your capacity as policeman, do you know of any usual occurrence that transpired in La Paz, Abra? — A. Yes, sir.

Q. Will you state what is the event? — A. On April 17, 1945, I was assigned as guard at the Presidencia where Mayor
Arsenio Borjal is confined. On the 18th of April, 1945, six bolomen came to me while I was on duty as guard, that Mayor
Borjal should be tied, on orders of Mayor Beronilla, Mayor Borjal wanted to know the reason why he would be tied, as he
had not yet learned of the decision of the jury against him. Mayor Borjal wrote a note to Mayor Beronilla, asking the reason
for his being ordered to be tied. I personally delivered the note of Borjal to Mayor Beronilla. Mayor Beronilla did not answer
the note, but instead told me that I should tie Mayor Borjal, as tomorrow he would die, as he cannot escape. I returned to the
Presidencia, and Mayor Borjal was tied, as that was the ordered of Mayor Beronilla.

The plain import of the affidavit is that the witness Rafael Balmaceda was not with Beronilla when the message arrived, otherwise
Beronilla would have given him his orders direct, as he (Balmaceda) testified later at the trial. Moreover, it is difficult to believe that
having learned of the contents of the Volckmann message, Balmaceda should not have relayed it to Borjal , or to some member of the
latter's family, considering that they were relatives. In addition to Balmaceda was contradicted by Bayken, another prosecution
witness, as to the hatching of the alleged conspiracy to kill Borjal. Balmaceda claimed that the accused-appellants decided to kill
Borjal in the early evening of April 18, while Bayken testified that the agreement was made about ten o'clock in the morning, shortly
after the accused had denied Borjal's petition to be allowed to hear mass.

Upon the other hand, Beronilla's conduct belies his receipt of the Volckmann message. Had he executed Borjal in violation of superior
orders, he would not have dared to report it to Arnold's headquarters on the very same day, April 18th, 1945, as he did (Exhibit 20),
half an hour after the execution. And what is even more important, if Borjal was executed contrary to instructions, how could Lt.
Colonel Arnold on April 21, 1945, write in reply (Exhibit 21, 21-a) "I can only compliment you for your impartial but independent
way of handling the whole case" instead of berating Beronilla and ordering his court martial for disobedience?

Our conclusion is that Lt. Col. Arnold, for some reason that can not now be ascertained, failed to transmit the Volckmann message to
Beronilla. And this being so, the charge of criminal conspiracy to do away with Borjal must be rejected, because the accused had no
need to conspire against a man who was, to their knowledge, duly sentenced to death.

The state claims that the appellants held grudges against the late Borjal. Even so, it has been already decided that the concurrence of
personal hatred and collaboration with the enemy as motives for a liquidation does not operate to exclude the case from the benefits of
the Amnesty claimed by appellants, since then "it may not be held that the manslaughter stemmed from purely personal motives"
(People vs. Barrioquinto,* G. R. Nos. L-2011 and 2267, June 30, 1951). Actually, the conduct of the appellants does not dispose that
these appellants were impelled by malice (dolo). The arrest and trial of Borjal were made upon express orders of the higher command;
the appellants allowed Borjal to be defended by counsel, one of them (attorney Jovito Barreras) chosen by Borjal's sister; the trial
lasted nineteen (19) days; it was suspended when doubts arose about its legality, and it was not resumed until headquarters (then in
Langangilang, Abra) authorized its resumption and sent an observer (Esteban Cabanos, of the S-5) to the proceedings, and whose
suggestions on procedure were followed; and when the verdict of guilty was rendered and death sentence imposed, the records were
sent to Arnold's headquarters for review, and Borjal was not punished until the records were returned eight days later with the
statement of Arnold that "whatever disposition you make of the case is hereby approved" (Exhibit 8), which on its face was an assent
to the verdict and the sentence. The lower Court, after finding that the late Arsenio Borjal had really committed treasonable acts,
(causing soldiers and civilians to be tortured, and hidden American officers to be captured by the Japanese) expressly declared that
"the Court is convinced that it was not for political or personal reason that the accused decided to kill Arsenio Borjal" (Decision, p. 9;
Record, p. 727).

It appearing that the charge is the heinous crime of murder, and that the accused-appellants acted upon orders, of a superior officers
that they, as military subordinates, could not question, and obeyed in good faith, without being aware of their illegality, without any
fault or negligence on their part, we can not say that criminal intent has been established (U. S. vs. Catolico, 18 Phil., 507; Peo. vs.
Pacana, 47 Phil., 48; Sent. of the Tribunal Supremo of Spain, 3 July 1886; 7 January 1901; 24 March 1900; 21 Feb. 1921; 25 March
1929). Actus non facit reum nisi mens si rea.

To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent, or by
such negligence or indifference to duty or to consequence, as, in law, is equivalent to criminal intent. The maxim is,  actus
 non facit reum, nisi mens rea-a crime is not committed if the minds of the person performing the act complained of be
innocent. (U. S. vs. Catolico, 18 Phil., 507).

But even assuming that the accused-appellant did commit crime with they are charged, the Court below should not have denied their
claim to the benefits of the Guerrilla Amnesty Proclamation No. 8 (42 Off. Gaz., 2072)on the ground that the slaying of Arsenio
Borjal took place after actual liberation of the area from enemy control and occupation. The evidence on record regarding the date of
liberation of La Paz, Abra, is contradictory. The Military Amnesty Commission that decided the case of one of the original accused
Jesus Labuguen, held that La Paz, Abra, was liberated on July 1, 1945, according to its records; and this finding was accepted by
Judge Letargo when he dismissed the case against said accused on March 15, 1949. On the other hand, Judge Bocar and Hilario, who
subsequently took cognizance of the case, relied on Department Order No. 25, of the Department of the Interior, dated August 12,
1948, setting the liberation of the Province of Abra on April 4, 1945, fifteen days before Borjal was slain. The two dates are not
strictly contradictory; but given the benefit of the Presidential directive to the Amnesty Commissions (Adm. Order No. 11, of October
2, 1946) that "any reasonable doubt as to whether a given case falls within the (amnesty) proclamation shall be resolved in favor of the
accused" (42 Off. Gaz., 2360), as was done in People vs. Gajo, Phil., 107 46 Off. Gaz., (No. 12) p. 6093.

For the reasons stated, the judgment appealed from is reversed and the appellants are acquitted, with costs de oficio.
 17. Tabuena v. Sandiganbayan, G.R. No. 103501- 03

G.R. Nos. 103501-03 February 17, 1997

LUIS A. TABUENA, petitioner,
vs.
HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES, respondents.

G.R. No. 103507 February 17, 1997

ADOLFO M. PERALTA, petitioner,
vs.
HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES, represented by the OFFICE OF
THE SPECIAL PROSECUTOR, respondents.

FRANCISCO, J.:

Through their separate petitions for review, 1 Luis A. Tabuena and Adolfo M. Peralta (Tabuena and Peralta, for short) appeal the
Sandiganbayan decision dated October 12, 1990, 2 as well as the Resolution dated December 20. 1991 3 denying reconsideration,
convicting them of malversation under Article 217 of the Revised Penal Code. Tabuena and Peralta were found guilty beyond
reasonable doubt Of having malversed the total amount of P55 Million of the Manila International Airport Authority (MIAA) funds
during their incumbency as General Manager and Acting Finance Services Manager, respectively, of MIAA, and were thus meted the
following sentence:

(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of
seventeen (17) years and one (1) day of reclusion temporal as minimum to twenty (20) years of reclusion
temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount
malversed. He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE
MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public office,

(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of
seventeen (17) years and one (1) day of reclusion temporal as minimum, and twenty (20) years of reclusion
temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount
malversed. He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE
MILLION PESOS (P25,000,000.00).

In addition, he shall suffer the penalty of perpetual special disqualification from public office.

(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are each sentenced to suffer the
penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum and twenty (20)
years of reclusion temporal as maximum and for each of them to pay separately a fine of FIVE MILLION PESOS
(P5,000,000.00) the amount malversed. They shall also reimburse jointly and severally the Manila International
Airport Authority the sum of FIVE MILLION PESOS (P5,000,000.00).

In addition, they shall both suffer the penalty of perpetual special disqualification from public office.

A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Manager of MIAA, has remained at
large.

There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount of P55 Million was taken on three (3)
separate dates of January, 1986. Tabuena appears as the principal accused — he being charged in all three (3) cases. The amended
informations in criminal case nos. 11758, 11759 and 11760 respectively read:

That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay,
Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao,
both public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila
International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the
only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions,
conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously,
and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION
PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a manager's check for said amount in
the name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB
Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine
National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take
care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and
after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena encashed the same and
thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the
damage and prejudice of the government in the aforesaid amount.
 CONTRARY TO LAW.

xxx xxx xxx

That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay.
Philippines and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao,
both public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila
International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the
only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions,
conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously,
and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION
PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a manager.s check for said amount in
the name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB
Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine
National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take
care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and
after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena encashed the same and
thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the
damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW.

xxx xxx xxx

That on or about the 29th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay,
Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Adolfo M. Peralta,
both public officers, being then the General Manager and Acting Manager, Financial Services Department,
respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to
the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to
its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully,
unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of FIVE
MILLION PESOS (P5,000,000.00) from MIAA funds by applying for the issuance of a manager's check for said
amount in the name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500- 354-3
in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the
Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would
personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of
PNCC, and after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena encashed the same
and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to
the damage and prejudice of the government in the aforesaid amount.

CONTRARY TO LAW.

Gathered from the documentary and testimonial evidence are the following essential antecedents:

Then President Marcos instructed Tabuena over the phone to pay directly to the president's office and in cash what the MIAA owes
the Philippine National Construction Corporation (PNCC), to which Tabuena replied, "Yes, sir, I will do it." About a week later,
Tabuena received from Mrs. Fe Roa-Gimenez, then private secretary of Marcos, a Presidential Memorandum dated January 8, 1986
(hereinafter referred to as MARCOS Memorandum) reiterating in black and white such verbal instruction, to wit:

Office of the President

of the Philippines
Malacanang

January
8, 1986

MEMO TO: The General Manager

Manila International Airport Authority

You are hereby directed to pay immediately the Philippine National Construction Corporation, thru this Office, the
sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAA's account with said
Company mentioned in a Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985 and duly
approved by this Office on February 4, 1985.

Your immediate compliance is appreciated.

(Sgd.) FERDINAND MARCOS.4

The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin referred to in the MARCOS
Memorandum, reads in full:

MEMORANDUM
For: The President

From: Minister Roberto V. Ongpin

Date: 7 January 1985

Subject: Approval of Supplemental Contracts and Request for Partial Deferment

of Repayment of PNCC's Advances for MIA Development Project

May I request your approval of the attached recommendations of Minister Jesus S. Hipolito for eight (8)
supplemental contracts pertaining to the MIA Development Project (MIADP) between the Bureau of Air Transport
(BAT) and Philippine National Construction Corporation (PNCC), formerly CDCP, as follows:

1. Supplemental Contract No. 12

Package Contract No. 2 P11,106,600.95

2. Supplemental Contract No. 13

5,758,961.52

3. Supplemental Contract No. 14

Package Contract No. 2 4,586,610.80

4. Supplemental Contract No. 15

1,699,862.69

5. Supplemental Contract No. 16

Package Contract No. 2 233,561.22

6. Supplemental Contract No. 17

Package Contract No. 2 8,821,731.08

7. Supplemental Contract No. 18

Package Contract No. 2 6,110,115.75

8. Supplemental Contract No. 3

Package Contract No. II 16,617,655.49

(xerox copies only; original memo was submitted to the Office of the President on May 28, 1984)

In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly CDCP,
has accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusive of
accomplishments for the aforecited contracts. In accordance with contract provisions, outstanding advances totalling
P93.9 million are to be deducted from said billings which will leave a net amount due to PNCC of only P4.5 million.

At the same time, PNCC has potential escalation claims amounting to P99 million in the following stages of
approval/evaluation:

— Approved by Price Escalation Committee

(PEC) but pended for lack of funds P1.9 million

— Endorsed by project consultants and

currently being evaluated by PEC 30.7 million

— Submitted by PNCC directly to PEC

and currently under evaluation 66.5 million
——————
Total P99.1 million

There has been no funding allocation for any of the above escalation claims due to budgetary constraints.

The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due to PNCC
have not been paid, resulting in undue burden to PNCC due to additional cost of money to service its obligations for
this contract.

To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we
request for His Excellency's approval for a deferment of the repayment of PNCC's advances to the extent of P30
million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has been
officially recognized by MIADP consultants but could not be paid due to lack of funding.

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This
amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the
repayment of advances of P63.9 million.
 (Sgd.) ROBERTO V.
ONGPIN
Minister5

In obedience to President Marcos' verbal instruction and memorandum, Tabuena, with the help of Dabao and Peralta, caused the
release of P55 Million of MIAA funds by means of three (3) withdrawals.

The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date signed by Tabuena and Dabao
requesting the PNB extension office at the MIAA — the depository branch of MIAA funds, to issue a manager's check for said
amount payable to Tabuena. The check was encashed, however, at the PNB Villamor Branch. Dabao and the cashier of the PNB
Villamor branch counted the money after which, Tabuena took delivery thereof. The P25 Million in cash were then placed in peerless
boxes and duffle bags, loaded on a PNB armored car and delivered on the same day to the office of Mrs. Gimenez located at Aguado
Street fronting Malacanang. Mrs. Gimenez did not issue any receipt for the money received

Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25 Million, made on January 16, 1986.

The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuena's co-signatory to the letter- request
for a manager's check for this amount. Peralta accompanied Tabuena to the PNB Villamor branch as Tabuena requested him to do the
counting of the P5 Million. After the counting, the money was placed in two (2) peerless boxes which were loaded in the trunk of
Tabuena's car. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez' office at Aguado Street. It was only upon
delivery of the P5 Million that Mrs. Gimenez issued a receipt for all the amounts she received from Tabuena. The receipt, dated
January 30, 1986, reads:

Malacanang
Manila

January
30, 1986

RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS (P55,000,000.00) as of the
following dates:

Jan. 10 — P 25,000,000.00
Jan. 16 — 25,000,000.00
Jan. 30 — 5,000,000.00

(Sgd.)
Fe Roa-
Gimene
z

The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, "out of the ordinary" and "not based on the
normal procedure". Not only were there no vouchers prepared to support the disbursement, the P55 Million was paid in cold cash.
Also, no PNCC receipt for the P55 Million was presented. Defense witness Francis Monera, then Senior Assistant Vice President and
Corporate Comptroller of PNCC, even affirmed in court that there were no payments made to PNCC by MIAA for the months of
January to June of 1986.

The position of the prosecution was that there were no outstanding obligations in favor of PNCC at the time of the disbursement of the
P55 Million. On the other hand, the defense of Tabuena and Peralta, in short, was that they acted in good faith. Tabuena claimed that
he was merely complying with the MARCOS Memorandum which ordered him to forward immediately to the Office of the President
P55 Million in cash as partial payment of MIAA's obligations to PNCC, and that he (Tabuena) was of the belief that MIAA indeed
had liabilities to PNCC. Peralta for his part shared the same belief and so he heeded the request of Tabuena, his superior, for him
(Peralta) to help in the release of P5 Million.

With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their conviction, Tabuena and Peralta
now set forth a total of ten (10) errors 6 committed by the Sandiganbayan for this Court's consideration. It appears, however, that at the
core of their plea that we acquit them are the following:

1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and

2) they acted in good faith.

Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional malversation, as the amended
informations commonly allege that:

. . . accused . . . conspiring, confederating and other, then and there wilfully, unlawfully, feloniously, and with intent
to defraud the government, take and misappropriated the amount of . . . .

But it would appear that they were convicted of malversation by negligence. In this connection, the Court's attention is
directed to p. 17 of the December 20, 1991 Resolution (denying Tabuena's and Peralta's motion for reconsideration) wherein
the Sandiganbayan said:
 xxx xxx xxx

On the contrary, what the evidence shows is that accused Tabuena delivered the P55 Million to people who were not
entitled thereto, either as representatives of MIAA or of the PNCC.

It proves that Tabuena had deliberately consented or permitted through negligence or abandonment, some other
person to take such public funds. Having done so, Tabuena, by his own narration, has categorically demonstrated
that he is guilty of the misappropriation or malversation of P55 Million of public funds. (Emphasis supplied.)

To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue that:

1) While malversation may be committed intentionally or by negligence, both modes cannot be committed at the same time.

2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where the amended informations
charged them with intentional malversation.7

3) Their conviction of a crime different from that charged violated their constitutional right to be informed of the accusation. 8

We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is "Cabello v. Sandiganbayan" 9 where the Court
passed upon similar protestations raised by therein accused-petitioner Cabello whose conviction for the same crime of malversation
was affirmed, in this wise:

. . . even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence
but the information was for intentional malversation, under the circumstances of this case his conviction under the
first mode of misappropriation would still be in order. Malversation is committed either intentionally or by
negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if
the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof
is proper. . . .

In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or intentional falsification can
validly be convicted of falsification through negligence, thus:

While a criminal negligent act is not a simple modality of a willful crime, as we held in  Quizon vs. Justice of the
Peace of Bacolor. G.R. No. L-6641, July 28, 1995, but a distinct crime in our Penal Code, designated as a quasi
offense in our Penal Code, it may however be said that a conviction for the former can be had under an information
exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense.
This is the situation that obtains in the present case. Appellant was charged with willful falsification but from the
evidence submitted by the parties, the Court of Appeals found that in effecting the falsification which made possible
the cashing of the checks in question, appellant did not act with criminal intent but merely failed to take proper and
adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In other
words, the information alleges acts which charge willful falsification but which turned out to be not willful but
negligent. This is a case covered by the rule when there is a variance between the allegation and proof, and is similar
to some of the cases decided by this Tribunal.

xxx xxx xxx

Moreover; Section 5, Rule 116, of the Rules of Court does not require that all the essential elements of the offense
charged in the information be proved, it being sufficient that some of said essential elements or ingredients thereof
be established to constitute the crime proved. . . .

The fact that the information does not allege that the falsification was committed with imprudence is of no moment
for here this deficiency appears supplied by the evidence submitted by appellant himself and the result has proven
beneficial to him. Certainly, having alleged that the falsification has been willful, it would be incongruous to allege
at the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the
concept of negligence.

Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale and arguments also apply to the
felony of malversation, that is, that an accused charged with willful malversation, in an information containing
allegations similar to those involved in the present case, can be validly convicted of the same offense of
malversation through negligence where the evidence sustains the latter mode of perpetrating the offense.

Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for malversation for it would negate
criminal intent on the part of the accused. Thus, in the two (2) vintage, but significantmalversation cases of "US v. Catolico"  10 and
"US v. Elvina," 11 the Court stressed that:

To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal
intent, or by such negligence or indifference to duty or to consequences as, in law, is equivalent to criminal intent.
The maxim is actus non facit reum, nisi mens sit rea — a crime is not committed if the mind of the person
performing the act complained of is innocent.

The rule was reiterated in "People v. Pacana," 12 although this case involved falsification of public documents and estafa:
 Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi mens sit rea.
There can be no crime when the criminal mind is wanting.

American jurisprudence echoes the same principle. It adheres to the view that criminal intent in embezzlement is not based
on technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the
mind of the person doing the act is innocent or if there is no wrongful purpose. 13 The accused may thus always introduce
evidence to show he acted in good faith and that he had no intention to convert. 14 And this, to our mind, Tabuena and Peralta
had meritoriously shown.

In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum we are swayed to give credit
to his claim of having caused the disbursement of the P55 Million solely by reason of such memorandum. From this premise flows the
following reasons and/or considerations that would buttress his innocence of the crime of malversation.

First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS Memorandum required him to do.
He could not be faulted if he had to obey and strictly comply with the presidential directive, and to argue otherwise is something easier
said than done. Marcos was undeniably Tabuena's superior — the former being then the President of the Republic who unquestionably
exercised control over government agencies such as the MIAA and PNCC. 15 In other words, Marcos had a say in matters involving
inter-government agency affairs and transactions, such as for instance, directing payment of liability of one entity to another and the
manner in which it should be carried out. And as a recipient of such kind of a directive coming from the highest official of the land no
less, good faith should be read on Tabuena's compliance, without hesitation nor any question, with the MARCOS Memorandum.
Tabuena therefore is entitled to the justifying circumstance of "Any person who acts in obedience to an order issued by a superior for
some lawful purpose."16 The subordinate-superior relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of
the order contained in the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government agency
(MIAA) to another (PNCC). However, the unlawfulness of the MARCOS Memorandum was being argued, on the observation, for
instance, that the Ongpin Memo referred to in the presidential directive reveals a liability of only about P34.5 Million. The
Sandiganbayan in this connection said:

Exhibits "2" and "2-a" (pages 1 and 2 of the memorandum of Min. Ongpin to the President dated January 7, 1985)
were mainly:

a.) for the approval of eight Supplemental Contracts; and

b.) a request for partial deferment of payment by PNCC for advances made for the MIAA Development Project,
while at the same time recognizing some of the PNCC's escalation billings which would result in making payable to
PNCC the amount of P34.5 million out of existing MIAA Project funds.

Thus:

"xxx xxx xxx

To allow PNCC to collect partially its billings, and in consideration of ifs pending escalation
billings, may we request for His Excellency's approval for a deferment of repayment of PNCC's
advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation
claims of PNCC, of which P32.6 million has been officially recognized by MIADP consultants but
could not be paid due to lack of funding.

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA
Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million
over the undeferred portion of the repayment of advances of P63.9 million."

While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to MIAA to the extent of
P99.1 million (Exhibit 2a), a substantial portion thereof was still in the stages of evaluation and approval, with only
P32.6 million having been officially recognized by the MIADP consultants.

If any payments were, therefore, due under this memo for Min. Ongpin (upon which President Marcos' Memo was
based) they would only be for a sum of up to P34.5 million. 17

xxx xxx xxx

V. Pres. Marcos' order to Tabuena dated January 8, 1986 baseless.

Not only was Pres. Marcos' Memo (Exhibit "1") for Tabuena to pay P55 million irrelevant, but it
was actually baseless.

This is easy to see.

Exhibit "1" purports to refer itself to the Ongpin Memorandum (Exhibit "2", "2-a"); Exhibit "1",
however, speaks of P55 million to be paid to the PNCC while Exhibit "2" authorized only P34.5
million. The order to withdraw the amount of P55 million exceeded the approved payment of
P34.5 million by P20.5 million. Min. Ongpin's Memo of January 7, 1985 could not therefore serve
as a basis for the President's order to withdraw P55 million. 18
 Granting this to be true, it will not nevertheless affect Tabuena's goad faith so as to make him criminally liable. What is more
significant to consider is that the MARCOS Memorandum is patently legal (for on its face it directs payment of an
outstanding liability) and that Tabuena acted under the honest belief that the P55 million was a due and demandable debt and
that it was just a portion of a bigger liability to PNCC. This belief is supported by defense witness Francis Monera who, on
direct examination, testified that:

ATTY ANDRES

Q Can you please show us in this Exhibit "7" and "7-a" where it is indicated the receivables from
MIA as of December 31, 1985?

A As of December 31, 1985, the receivables from MIA is shown on page 2, marked as Exhibit "7-
a", sir, P102,475.392.35

xxx xxx xxx 19

ATTY. ANDRES

Q Can you tell us, Mr. Witness, what these obligations represent?

WITNESS

A These obligations represent receivables on the basis of our billings to MIA as contract-owner of
the project that the Philippine National Construction Corporation constructed. These are billings
for escalation mostly, sir.

Q What do you mean by escalation?

A Escalation is the component of our revenue billings to the contract-owner that are supposed to
take care of price increases, sir.

xxx xxx xxx 20

ATTY ANDRES

Q When you said these are accounts receivable, do I understand from you that these are due and
demandable?

A Yes, sir. 21

Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not
liable, for then there would only be a mistake of fact committed in good faith. 22 Such is the ruling in "Nassif v. People" 23 the
facts of which, in brief, are as follows:

Accused was charged with falsification of commercial document. A mere employee of R.J. Campos, he inserted in
the commercial document alleged to have been falsified the word "sold" by order of his principal. Had he known or
suspected that his principal was committing an improper act of falsification, he would be liable either as a co-
principal or as an accomplice. However, there being no malice on his part, he was exempted from criminal liability
as he was a mere employee following the orders of his principal. 24

Second. There is no denying that the disbursement, which Tabuena admitted as "out of the ordinary", did not comply with certain
auditing rules and regulations such as those pointed out by the Sandiganbayan, to wit:

a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00 should be made by check (Basic
Guidelines for Internal Control dated January 31, 1977 issued by COA)

b) payment of all claims against the government had to be supported with complete documentation (Sec. 4, P.D. 1445, "State Auditing
Code of the Philippines). In this connection, the Sandiganbayan observed that:

There were no vouchers to authorize the disbursements in question. There were no bills to support the disbursement.
There were no certifications as to the availability of funds for an unquestionably staggering sum of P55 Million. 25

c) failure to protest (Sec. 106, P.D. 1445)

But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury of time to observe all
auditing procedures of disbursement considering the fact that the MARCOS Memorandum enjoined his "immediate
compliance" with the directive that he forward to the President's Office the P55 Million in cash. Be that as it may, Tabuena
surely cannot escape responsibility for such omission. But since he was acting in good faith, his liability should only be
administrative or civil in nature, and not criminal. This follows the decision in "Villacorta v. People" 26 where the Court, in
acquitting therein accused municipal treasurer of Pandan, Catanduanes of malversation after finding that he incurred a
shortage in his cash accountability by reason of his payment in good faith to certain government personnel of their legitimate
wages leave allowances, etc., held that:
 Nor can negligence approximating malice or fraud be attributed to petitioner. If he made wrong payments, they were
in Good faith mainly to government personnel, some of them working at the provincial auditor's and the provincial
treasurer's offices And if those payments ran counter to auditing rules and regulations, they did not amount to a
criminal offense and he should only be held administratively or civilly liable.

Likewise controlling is "US v. Elvina" 27 where it was held that payments in good faith do not amount to criminal
appropriation, although they were made with insufficient vouchers or improper evidence. In fact, the Dissenting Opinion's
reference to certain provisions in the revised Manual on Certificate of Settlement and Balances — apparently made to
underscore Tabuena's personal accountability, as agency head, for MIAA funds — would all the more support the view that
Tabuena is vulnerable to civil sanctions only Sections 29.2 and 295 expressly and solely speak of "civilly liable," describe the
kind of sanction imposable on a superior officer who performs his duties with "bad faith, malice or gross negligence"' and on
a subordinate officer or employee who commits "willful or negligent acts . . . which are contrary to law, morals, public
policy and good customs even if he acted under order or instructions of his superiors."

Third. The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the P55 Million when he
delivered the same to Mrs. Gimenez and not to the PNCC, proceeding from the following definitions/concepts of "conversion":

"Conversion", as necessary element of offense of embezzlement, being the fraudulent "appropriation to one's own
use' of another's property which does not necessarily mean to one's personal advantage but every attempt by one
person to dispose of the goods of another without right as if they were his own is conversion to his own use." (Terry
v. Water Improvement Dist. No. 5 of Tulsa County, 64 p, 2d 904, 906, 179 Okl. 106)

— At p. 207, Words and Phrases,

Permanent Edition 9A.

Conversion is any interference subversive of the right of the owner of personal property to enjoy and control it. The
gist of conversion is the usurpation of the owner 's right of property, and not the actual damages inflicted. Honesty
of purpose is not a defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)

— At page 168, id.

xxx xxx xxx

The words "convert" and "misappropriate" connote an act of using or disposing of another's property as if it were
one's own. They presuppose that the thing has been devoted to a purpose or use different from that agreed upon. To
appropriate to one's own use includes not only conversion to one's personal advantage but every attempt to dispose
of the property of another without right.

— People vs. Webber, 57 O.G.

p. 2933, 2937

By placing them at the disposal of private persons without due authorization or legal justification, he became as
guilty of malversation as if he had personally taken them and converted them to his own use.

— People vs. Luntao, 50 O.G.

p. 1182, 1183 28

We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena "to pay immediately the Philippine
National Construction Corporation, thru this office the sum of FIFTY FIVE MILLION. . .", and that was what Tabuena
precisely did when he delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the
President inasmuch as Mrs. Gimenez was Marcos' secretary then. Furthermore, Tabuena had reasonable ground to believe
that the President was entitled to receive the P55 Million since he was certainly aware that Marcos, as Chief Executive,
exercised supervision and control over government agencies. And the good faith of Tabuena in having delivered the money
to the President's office (thru Mrs. Gimenez), in strict compliance with the MARCOS Memorandum, was not at all affected
even if it later turned out that PNCC never received the money. Thus, it has been said that:

Good faith in the payment of public funds relieves a public officer from the crime of malversation.

xxx xxx xxx

Not every unauthorized payment of public funds is malversation. There is malversation only if the public officer
who has custody of public funds should appropriate the same, or shall take or misappropriate or shall consent, or
through abandonment or negligence shall permit any other person to take such public funds. Where the payment of
public funds has been made in good faith, and there is reasonable ground to believe that the public officer to whom
the fund had been paid was entitled thereto, he is deemed to have acted in good faith, there is no criminal intent, and
the payment, if it turns out that it is unauthorized, renders him only civilly but not criminally liable. 29

Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to siphon-out public money for the
personal benefit of those then in power, still, no criminal liability can be imputed to Tabuena. There is no showing that Tabuena had
anything to do whatsoever with the execution of the MARCOS Memorandum. Nor is there proof that he profited from the felonious
scheme. In short, no conspiracy was established between Tabuena and the real embezzler/s of the P5 Million. In the cases of "US v.
Acebedo"30 and "Ang v. Sandiganbayan",31 both also involving the crime of malversation, the accused therein were acquitted after the
Court arrived at a similar finding of non-proof of conspiracy. In "Acebedo", therein accused, as municipal president of Palo, Leyte,
was prosecuted for and found guilty by the lower court of malversation after being unable to turn over certain amounts to the then
justice of the peace. It appeared, however, that said amounts were actually collected by his secretary Crisanto Urbina. The Court
reversed Acebedo's conviction after finding that the sums were converted by his secretary Urbina without the knowledge and
participation of Acebedo. The Court said, which we herein adopt:

No conspiracy between the appellant and his secretary has been shown in this case, nor did such conspiracy appear
in the case against Urbina. No guilty knowledge of the theft committed by the secretary was shown on the part of the
appellant in this case, nor does it appear that he in any way participated in the fruits of the crime. If the secretary
stole the money in question without the knowledge or consent of the appellant and without negligence on his part,
then certainly the latter can not be convicted of embezzling the same money or any part thereof. 32

In "Ang", accused-petitioner, as MWSS bill collector, allowed part of his collection to be converted into checks drawn in the
name of one Marshall Lu, a non-customer of MWSS, but the checks were subsequently dishonored. Ang was acquitted by
this Court after giving credence to his assertion that the conversion of his collections into checks were thru the machinations
of one Lazaro Guinto, another MWSS collector more senior to him. And we also adopt the Court's observation therein, that:

The petitioner's alleged negligence in allowing the senior collector to convert cash collections into checks may be
proof of poor judgment or too trusting a nature insofar as a superior officer is concerned but there must be stronger
evidence to show fraud, malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall Lu.
The prosecution failed to show that the petitioner was privy to the conspirational scheme. Much less is there any
proof that he profited from the questioned acts. Any suspicions of conspiracy, no matter how sincerely and strongly
felt by the MWSS, must be converted into evidence before conviction beyond reasonable doubt may be imposed. 33

The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peralta in relation to the P5
Million for which he is being held accountable, i.e., he acted in good faith when he, upon the directive of Tabuena, helped
facilitate the withdrawal of P5 Million of the P55 Million of the MIAA funds.

This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly executed order. Indeed, compliance to
a patently lawful order is rectitude far better than contumacious disobedience. In the case at bench, the order emanated from the Office
of the President and bears the signature of the President himself, the highest official of the land. It carries with it the presumption that
it was regularly issued. And on its face, the memorandum is patently lawful for no law makes the payment of an obligation illegal.
This fact, coupled with the urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis essentia.
Besides, the case could not be detached from the realities then prevailing As aptly observed by Mr Justice Cruz in his dissenting
opinion:

We reject history in arbitrarily assuming that the people were free during the era and that the Judiciary was
independent and fearless. We know it was not: even the Supreme Court at that time was not free. This is an
undeniable fact that we can not just blink away. Insisting on the contrary would only make our sincerity suspect and
even provoke scorn for what can only be described as our incredible credulity. 34

But what appears to be a more compelling reason for their acquittal is the violation of the accused's basic constitutional right to due
process. "Respect for the Constitution", to borrow once again Mr. Justice Cruz's words, "is more important than securing a conviction
based on a violation of the rights of the accused."35 While going over the records, we were struck by the way the Sandiganbayan
actively took part in the questioning of a defense witness and of the accused themselves. Tabuena and Peralta may not have raised this
as an error, there is nevertheless no impediment for us to consider such matter as additional basis for a reversal since the settled
doctrine is that an appeal throws the whole case open to review, and it becomes the duty of the appellate court to correct such errors as
may be found in the judgment appealed from whether they are made the subject of assignments of error or not. 36

Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the testimony of Francis Monera. then Senior
Assistant Vice President and Corporate Comptroller of PNCC, Atty. Andres asked sixteen (16) questions on direct examination.
Prosecutor Viernes only asked six (6) questions on cross-examination in the course of which the court interjected a total of twenty-
seven (27) questions (more than four times Prosecutor Viernes' questions and even more than the combined total of direct and cross-
examination questions asked by the counsels) After the defense opted not to conduct any re-direct examination, the court further asked
a total of ten (10) questions.37 The trend intensified during Tabuena's turn on the witness stand. Questions from the court after
Tabuena's cross-examination totalled sixty-seven (67). 38 This is more than five times Prosecutor Viernes' questions on cross-
examination (14), and more than double the total of direct examination and cross-examination questions which is thirty-one (31) [17
direct examination questions by Atty. Andres plus 14 cross-examination questions by Prosecutor Viernes]. In Peralta's case, the
Justices, after his cross-examination, propounded a total of forty-one (41) questions. 39

But more importantly, we note that the questions of the court were in the nature of cross examinations characteristic of confrontation,
probing and insinuation. 40 (The insinuating type was best exemplified in one question addressed to Peralta, which will be
underscored.) Thus we beg to quote in length from the transcripts pertaining to witness Monera, Tabuena and Peralta. (Questions from
the Court are marked with asterisks and italicized for emphasis.)

(MONERA)

(As a background, what was elicited from his direct examination is that the PNCC had receivables from MIAA totalling
P102,475,392.35, and although such receivables were largely billings for escalation, they were nonetheless all due and demandable.
What follows are the cross-examination of Prosecutor Viernes and the court questions).

CROSS-EXAMINATION BY PROS. VIERNES

Q You admit that as shown by these Exhibits "7" and "7- a", the items here represent mostly
escalation billings. Were those escalation billings properly transmitted to MIA authorities?
A I don't have the documents right now to show that they were transmitted, but I have a letter by
our President, Mr. Olaguer, dated July 6, 1988, following up for payment of the balance of our
receivables from MIA, sir.

*AJ AMORES

*Q This matter of escalation costs, is it not a matter for a conference between the MIA and the
PNCC for the determination as to the correct amount?

A I agree, your Honor. As far as we are concerned, our billings are what we deemed are valid
receivables And, in fact, we have been following up for payment.

*Q This determination of the escalation costs was it accepted as the correct figure by MIA ?

A I don't have any document as to the acceptance by MIA your Honor, but our company was able
to get a document or a letter by Minister Ongpin to President Marcos, dated January 7, 1985, with
a marginal note or approval by former President Marcos.

*PJ GARCHITORENA

*Q Basically, the letter of Mr. Ongpin is to what effect?

A The subject matter is approval of the supplementary contract and request for partial deferment
of payment for MIA Development Project, your Honor.

*Q It has nothing to do with the implementation of the escalation costs?

A The details show that most of the accounts refer to our escalations, your Honor.

*Q Does that indicate the computation for escalations were already billed or you do not have any
proof of that

A Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpin appears
to have confirmed our billings to MIA, your Honor.

*AJ AMORES

*Q Were there partial payments made by MIA an these escalation billings?

A Based on records available as of today, the P102 million was reduced to about P56.7 million, if
my recollection is correct, your Honor.

*PJ GARCHITORENA

*Q Were the payments made before or after February 1986, since Mr. Olaguer is a new entrant to
your company?

WITNESS

A The payments were made after December 31, 1985 but I think the payments were made before
the entry of our President, your Honor. Actually, the payment was in the form of: assignments to
State Investment of about P23 million; and then there was P17.8 million application against
advances made or formerly given; and there were payments to PNCC of about P2.6 million and
there was a payment for application on withholding and contractual stock of about P1 million; that
summed up to P44.4 million all in all. And you deduct that from the P102 million, the remaining
balance would be about P57 million.

*PJ GARCHITORENA

*Q What you are saying is that, for all the payments made on this P102 million, only P2 million
had been payments in cash ?

A Yes, your Honor.

*Q The rest had been adjustments of accounts, assignments of accounts, or offsetting of accounts?

A Yes, your Honor.

*Q This is as of December 31, 1985?

A The P102 million was as of December 31, 1985, your Honor, but the balances is as of August
1987.

*Q We are talking now about the P44 million, more or less, by which the basic account has been
reduced. These reductions, whether by adjustment or assignment or actual delivery of cash, were
made after December 31, 1985?

WITNESS

A Yes, your Honor.

*Q And your records indicate when these adjustments and payments were made?

A Yes, your Honor.

*AJ AMORES

*Q You said there were partial payments before of these escalation billings. Do we get it from you
that there was an admission of these escalation costs as computed by you by MIA, since there was
already partial payments?

A Yes, your Honor.

*Q How were these payments made before February 1986, in case or check, if there were
payments made?

A The P44 million payments was in the form of assignments, your Honor.

*PJ GARCHITORENA

*Q The question of the Court is, before December 31, 1985, were there any liquidations made by
MIA against these escalation billings?

A I have not reviewed the details of the record, your Honor. But the ledger card indicates that
there were collections on page 2 of the Exhibit earlier presented. It will indicate that there were
collections shown by credits indicated on the credit side of the ledger.

*AJ AMORES

*Q Your ledger does not indicate the manner of giving credit to the MIA with respect to the
escalation billings. Was the payment in cash or just credit of some sort before December 31,
1985?

A Before December 31, 1985, the reference of the ledger are official receipts and I suppose these
were payments in cash, your Honor.

*Q Do you know how the manner of this payment in cash was made by MIA?

A I do not know, your Honor.

*PJ GARCHITORENA

*Q But your records will indicate that?

A The records will indicate that, your Honor.

*Q Except that you were not asked to bring them?

A Yes, your Honor.

*Q At all events, we are talking of settlement or partial liquidation prior to December 31, 1985?

A Yes, your Honor.

*PJ GARCHITORENA

*Q Subsequent thereto, we are talking merely of about P44 million?

A Yes, your Honor, as subsequent settlements.

 *Q After December 31, 1985?

A Yes, your Honor.

*Q And they have liquidated that, as you described it, by way of assignments, adjustments, by
offsets and by P2 million of cash payment?

A Yes, your Honor.

*AJ AMORES

*Q Your standard operating procedure before December 31, 1985 in connection with or in case of
cash payment, was the payment in cash or check?

A I would venture to say it was by check, your Honor.

*Q Which is the safest way to do it?

A Yes, your Honor.

"PJ GARCHITORENA

*Q And the business way?

A Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q You mentioned earlier about the letter of former Minister Ongpin to the former President
Marcos, did you say that letter concurs with the escalation billings reflected in Exhibits "7" and
"7-a"?

WITNESS

A The Company or the management is of the opinion that this letter, a copy of which we were able
to get, is a confirmation of the acceptance of our billings, sir.

Q This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of escalation
billings as appearing in Exhibit "7" are dated June 30, 1985, would you still insist that the letter of
January 1985 confirms the escalation billings as of June 1985?

A The entries started June 30 in the ledger card. And as of December 31, 1985, it stood at P102
million after payments were made as shown on the credit side of the ledger. I suppose hat the
earlier amount, before the payment was made, was bigger and therefore I would venture to say
that the letter of January 7, 1985 contains an amount that is part of the original contract account.
What are indicated in the ledger are escalation billings.

*PJ GARCHITORENA

*Q We are talking about the letter of Minister Ongpin?

A The letter of Minister Ongpin refers to escalation billings, sir.

*Q As of what date?

A The letter is dated January 7, 1985, your Honor.

PJ GARCHITORENA

Continue.

PROS. VIERNES

Q In accordance with this letter marked Exhibit "7" and "7-a", there were credits made in favor of
MIA in July and November until December 1985. These were properly credited to the account of
MIA?
WITNESS

A Yes, sir.

Q In 1986. from your records as appearing in Exhibit "7-a", there were no payments made to
PNCC by MIA for the months of January to June 1986?

A Yes, sir.

Q And neither was the amount of P22 million remitted to PNCC by MIA?

A Yes, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY ANDRES

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ AMORES

*Q From your records, for the month of January 1986, there was no payment of this escalation
account by MIA?

WITNESS

A Yes, your Honor. But on page 2 of Exhibit "7" there appears an assignment of P23 million, that
was on September 25, 1986.

*Q But that is already under the present administration?

A After February 1986, your Honor.

*Q But before February, in January 1986, there was no payment whatsoever by MIA to PNCC?

A Per record there is none appearing, your Honor.

*PJ GARCHITORENA

*Q The earliest payment, whether by delivery of cash equivalent or of adjustment of account, or

by assignment, or by offsets, when did these payments begin?

A Per ledger card, there were payments in 1985, prior to December 31, 1985, your Honor.

*Q After December 31, 1985?

A There appears also P23 million as credit, that is a form of settlement, your Honor.

*Q This is as of September 25?

A Yes, your Honor. There were subsequent settlements P23 million is just part of the P44 million.

*Q And what you are saying is that, PNCC passed the account to State Investment. In other words,
State Investment bought the credit of MIA?

A Yes, your Honor.

*Q And the amount of credit or receivables sold by PNCC to State Investment is P23 million?

A Yes, your Honor.

 *Q Is there a payback agreement?

A I have a copy of the assignment to State Investment but I have not yet reviewed the same, your
Honor.

*AJ AMORES

*Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?

A There is still a balance of receivables from MIA as evidenced by a collection letter by our
President dated July 6, 1988, your Honor. The amount indicated in the letter is P55 million.

PJ GARCHITORENA

Any clarifications you would like to make Mr. Estebal?

ATTY ESTEBAL

None, your Honor.

PJ GARCHITORENA

Mr. Viernes?

PROS VIERNES

No more, your Honor.

PJ GARCHITORENA

The witness is excused. Thank you very much Mr. Monera. . . .41

(TABUENA)

(In his direct examination, he testified that he caused the preparation of the checks totalling P55 Million pursuant to the MARCOS
Memorandum and that he thereafter delivered said amount in cash on the three (3) dates as alleged in the information to Marcos'
private secretary Mrs. Jimenez at her office at Aguado Street, who thereafter issued a receipt. Tabuena also denied having used the
money for his own personal use.)

CROSS-EXAMINATION BY PROS. VIERNES

Q The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were delivered on
how many occasions?

A Three times, sir.

Q And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez?

A Yes, sir.

Q It was only on January 30, 1986 that this receipt Exhibit "3" was issued by Mrs. Gimenez?

A Yes, sir.

*PJ GARCHITORENA

*Q So January 30 is the date of the last delivery?

A I remember it was on the 31st of January, your Honor What happened is that, I did not notice
the date placed by Mrs. Gimenez.

Q Are you telling us that this Exhibit "3" was incorrectly dated

A Yes, your Honor.

*Q Because the third delivery was on January 31st and yet the receipt was dated January 30?

A Yes, your Honor.

*Q When was Exhibit "3" delivered actually by Mrs. Gimenez?

A January 31st, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q You did not go to Malacañang on January 30, 1986?

A Yes, sir, I did not.

Q Do you know at whose instance this Exhibit "3" was prepared?

A I asked for it, sir.

Q You asked for it on January 31, 1986 when you made the last delivery?

A Yes, sir.

Q Did you see this Exhibit "3" prepared in the Office of Mrs. Gimenez?

A Yes, sir.

Q This receipt was typewritten in Malacañang stationery. Did you see who typed this receipt?

A No, sir. What happened is that, she went to her room and when she came out she gave me that
receipt.

*PJ GARCHITORENA

Q What you are saying is, you do not know who typed that receipt?

WITNESS

A Yes, your Honor.

*Q Are you making an assumption that she typed that receipt?

A Yes, your Honor, because she knows how to type.

*Q Your assumption is that she typed it herself?

A Yes, your Honor.

PJ GARCHITORENA

Proceed.

PROS. VIERNES

Q This receipt was prepared on January 31, although it is dated January 30?

A Yes, sir, because I was there on January 31st.

Q In what particular place did Mrs. Gimenez sign this Exhibit "3"?

A In her office at Aguado, sir.

Q Did you actually see Mrs. Gimenez signing this receipt Exhibit "3"?

A No, sir, I did not. She was inside her room.

Q So, she was in her room and when she came out of the room, she handed this receipt to you
already typed and signed?

A Yes, sir.

*AJ HERMOSISIMA
*Q So, how did you know this was the signature of Mrs. Gimenez?

WITNESS

A Because I know her signature, your Honor. I have been receiving letters from her also and when
she requests for something from me. Her writing is familiar to me.

So, when the Presiding Justice asked you as to how you knew that this was the signature of Mrs.
Gimenez and you answered that you saw Mrs. Gimenez signed it, you were not exactly truthful?

A What I mean is, I did not see her sign because she went to her room and when she came out, she
gave me that receipt, your Honor.

PJ GARCHITORENA

That is why you have to wait for the question to be finished and listen to it carefully. Because
when I asked you, you said you saw her signed it. Be careful Mr. Tabuena.

WITNESS

Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Was there another person inside the office of Mrs. Gimenez when she gave you this receipt
Exhibit "3"?

A Nobody, sir.

Q I noticed in this receipt that the last delivery of the sum of P55 million was made on January 30.
Do we understand from you that this date January 30 is erroneous?

A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should be January 31st,
sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA

Redirect?

ATTY. ANDRES

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ HERMOSISIMA

*Q Why did you not ask for a receipt on the first and second deliveries?

A Because I know that the delivery was not complete yet, your Honor.

*PJ GARCHITORENA

*Q So you know that the total amount to be delivered was P55 million')

A Yes, your Honor.

PJ GARCHITORENA

Response by Mr. Peralta to the testimony of Mr. Tabuena.

ATTY. ESTEBAL

We are adopting the testimony of Mr. Tabuena and we will also present the accused, your Honor.

*AJ DEL ROSARIO

"Q From whom did you receive the President's memorandum marked Exhibit "1"? Or more
precisely, who handed you this memorandum?

A Mrs. Fe Roa Gimenez, your Honor.

Q Did you ask Mrs, Fe Gimenez for what purpose the money was being asked?

A The money was in payment for the debt of the MIA Authority to PNCC, your Honor.

*Q If it was for the payment of such obligation why was there no voucher prepared to cover such
payment? In other words, why was the delivery of the money not covered by any voucher?

A The instruction to me was to give it to the Office of the President, your Honor.

*PJ GARCHITORENA

*Q Be that as it may, why was there no voucher to cover this particular disbursement?

A I was just told to bring it to the Office of the President, your Honor.

*AJ DEL ROSARIO

*Q Was that normal procedure for you to pay in cash to the Office of the President for obligations
of the MIAA in payment of its obligation to another entity?

WITNESS

A No, your Honor, I was just following the Order to me of the President.

*PJ GARCHITORENA

*Q So the Order was out of the ordinary?

A Yes, your Honor.

*AJ DEL ROSARIO

Did you file any written protest with the manner with which such payment was being ordered?

A No, your Honor.

*Q Why not?

A Because with that instruction of the President to me, I followed, your Honor.

*Q Before receiving this memorandum Exhibit "1", did the former President Marcos discuss this
maitter with you?

A Yes, your Honor.

*Q When was that?

A He called me up earlier, a week before that, that he wants to me pay what I owe the PNCC
directly to his office in cash, your Honor.

*PJ GARCHITORENA

*Q By "I OWE ", you mean the MIAA?

WITNESS

A Yes, your Honor.

*AJ DEL ROSARIO

*Q And what did you say in this discussion you had with him?

A I just said, "Yes, sir, I will do it/"

*Q Were you the one who asked for a memorandum to be signed by him?

A No, your Honor.

*Q After receiving that verbal instruction for you to pay MIAA's obligation with PNCC, did you
not on your own accord already prepare the necessary papers and documents for the payment of
that obligation?

A He told me verbally in the telephone that the Order for the payment of that obligation is
forthcoming, your Honor. I will receive it.

*Q Is this the first time you received such a memorandum from the President?

A Yes, your Honor.

*Q And was that the last time also that you received such a memorandum?

A Yes, your Honor.

*Q Did you not inquire, if not from the President, at least from Mrs. Gimenez why this procedure
has to be followed instead of the regular procedure?

A No, sir.

*AJ DEL ROSARIO

*Q Why did you not ask?

A I was just ordered to do this thing, your Honor.

*AJ HERMOSISIMA

*Q You said there was an "I OWE YOU"?

A Yes, your Honor.

*Q Where is that "I OWE YOU" now?

A All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA owes PNCC
that amount.

*Q Was this payment covered by receipt from the PNCC?

A It was not covered, your Honor.

*Q So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that
payment?

A Based on the order to me by the former President Marcos ordering me to pay that amount to his
office and then the mechanics will come after, your Honor.

*Q Is the PNCC a private corporation or government entity?

A I think it is partly government, your Honor.

*PJ GARCHITORENA

*Q That is the former CDCP?

A Yes, your Honor.

*AJ HERMOSISIMA

*Q Why were you not made to pay directly, to the PNCC considering that you are the Manager of
MIA at that time and the PNCC is a separate corporation, not an adjunct of Malacañang?
WITNESS

A I was just basing it from the Order of Malacanang to pay PNCC through the Office of the
President, your Honor.

*Q Do you know the President or Chairman of the Board of PNCC?

A Yes, your Honor.

"Q How was the obligation of MIAA to PNCC incurred. Was it through the President or Chairman
of the Board?

A PNCC was the one that constructed the MIA, your Honor.

*Q Was the obligation incurred through the President or Chairman of the Board or President of the
PNCC? In other words, who signed the contract between PNCC and MIAA?

A Actually, we inherited this obligation, your Honor. The one who signed for this was the former
Director of BAT which is General Singzon. Then when the MIA Authority was formed, all the
obligations of BAT were transferred to MIAA. So the accountabilities of BAT were transferred to
MIAA and we are the ones that are going to pay, your Honor.

*Q Why did you agree to pay to Malacañang when your obligation was with the PNCC?

A I was ordered by the President to do that, your Honor.

*Q You agreed to the order of the President notwithstanding the fact that this was not the regular
course or Malacañang was not the creditor?

A I saw nothing wrong with that because that is coming, from the President, your Honor.

*Q The amount was not a joke, amounting to P55 million, and you agreed to deliver money in this
amount through a mere receipt from the private secretary?

A I was ordered by the President, your Honor.

*PJ GARCHITORENA

*Q There is no question and it can be a matter of judicial knowledge that you have been with the
MIA for sometime?

A Yes, your Honor.

*Q Prior to 1986?

A Yes, your Honor.

*Q Can you tell us when you became the Manager of MIA?

A I became Manager of MIA way back, late 1968, your Honor.

*Q Long before the MIA was constituted as an independent authority?

A Yes, your Honor.

*PJ GARCHITORENA

*Q And by 1986, you have been running the MIA for 18 years?

WITNESS

A Yes, your Honor.

*Q And prior to your Joining the MIA, did you ever work for the government?

A No, your Honor.

*Q So, is it correct for us to say that your joining the MIA in 1968 as its Manager was your first
employment ,with the government?
A Yes, your Honor.

*Q While you were Manager of MIA, did you have other subsequent concurrent positions in the
government also?

A I was also the Chairman of the Games and Amusement Board, your Honor.

*Q But you were not the executive or operating officer of the Games and Amusement Board?

A I was, your Honor.

*Q As Chairman you were running the Games and Amusement Board?

A Yes, your Honor.

*Q What else, what other government positions did you occupy that time?

A I was also Commissioner of the Game Fowl Commission, your Honor.

*PJ GARCHITORENA

*Q That is the cockfighting?

WITNESS

A Yes, your Honor.

*Q Here, you were just a member of the Board?

A Yes, your Honor.

*Q So you were not running the commission?

A Yes, your Honor.

*Q Any other entity?

A No more, your Honor.

*Q As far as you can recall, besides being the Manager of the MIA and later the MIAA for
approximately 18 years, you also ran the Games and Amusement Board as its executive officer?

A Yes, your Honor.

*Q And you were a commissioner only of the Came Fowl Commission?

A Yes, your Honor.

*Q Who was running the commission at that time?

A I forgot his name, but he retired already, your Honor.

*Q All of us who joined the government, sooner or later, meet with our Resident COA
representative?

A Yes, your Honor.

*PJ GARCHITORENA

*Q And one of our unfortunate experience (sic) is when the COA Representative comes to us and
says: "Chairman or Manager, this cannot be". And we learn later on that COA has reasons for its
procedure and we learn to adopt to them?

WITNESS

A Yes, your Honor.

*Q As a matter of fact, sometimes we consider it inefficient, sometimes we consider it foolish, but

we know there is reason in this apparent madness of the COA and so we comply?
A Yes, your Honor.

*Q And more than anything else the COA is ever anxious for proper documentation and proper
supporting papers?

A Yes, your Honor.

*Q Sometimes, regardless of the amount?

A Yes, your Honor.

*Q Now, you have P55 million which you were ordered to deliver in cash, not to the creditor of
the particular credit, and to be delivered in armored cars to be acknowledged only by a receipt of a
personal secretary. After almost 18 years in the government service and having had that much
time in dealing with COA people, did it not occur to you to call a COA representative and say,
"What will I do here?"

A I did not, your Honor.

*PJ GARCHITORENA

*Q Did you not think that at least out of prudence, you should have asked the COA for some
guidance on this matter so that you will do it properly?

WITNESS

A What I was going to do is, after those things I was going to tell that delivery ordered by the
President to the COA, your Honor.

*Q That is true, but what happened here is that you and Mr. Dabao or you and Mr. Peralta signed
requests for issuance of Manager's checks and you were accommodated by the PNB Office at
Nichols without any internal documentation to justify your request for Manager's checks?

A Yes, your Honor.

*Q Of course we had no intimation at that time that Mr. Marcos will win the elections but even
then, the Daily Express, which was considered to be a newspaper friendly to the Marcoses at that
time, would occasionally come with so-called expose, is that not so?

A Yes, your Honor.

*Q And worst, you had the so-called mosquito press that would always come out with the real or
imagined scandal in the government and place it in the headline, do you recall that?

A Yes, your Honor.

*PJ GARCHITORENA

Under these circumstances, did you not entertain some apprehension that some disloyal employees
might leak you out and banner headline it in some mosquito publications like the Malaya at that
time?

WITNESS

A No, your Honor.

*PJ GARCHITORENA

I bring this up because we are trying to find out different areas of fear. We are in the government
and we in the government fear the COA and we also fear the press. We might get dragged into
press releases on the most innocent thing. You believe that?

A Yes, your Honor.

*Q And usually our best defense is that these activities are properly documented?

A Yes, your Honor.

*Q In this particular instance, your witnesses have told us about three (3) different trips from
Nichols to Aguado usually late in the day almost in movie style fashion. I mean, the money being
loaded in the trunk of your official car and then you had a back-up truck following your car?
 A Yes, your Honor.

*Q Is that not quite a fearful experience to you ?

A I did not think of that at that time, your Honor.

*PJ GARCHITORENA

"Q You did not think it fearful to be driving along Roxas Boulevard with P25 million in the trunk
of your car?

WITNESS

A We have security at that time your Honor.

ATTY. ANDRES

Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of his car.

*PJ GARCHITORENA

Thank you for the correction. Even P1 million only. How much more with P5 million inside the
trunk of your car, was that not a nervous experience?

A As I have said, your Honor, I never thought of that.

PJ GARCHITORENA

Thank you very much, Mr. Tabuena. You are excused. . . . 42

(PERALTA)

(He testified on direct examination that he co-signed with Tabuena a memorandum request for the issuance of the Manager's Check
for P5 Million upon order of Tabuena and that he [Peralta] was aware that MIAA had an existing obligation with PNCC in the amount
of around P27 Million. He affirmed having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but denied
having misappropriated for his own benefit said amount or any portion thereof.)

CROSS-EXAMINATION BY PROS VIERNES

Q Will you please tell the Honorable Court why was it necessary for you to co-sign with Mr.
Tabuena the request for issuance of Manager's check in the amount of P5 million?

A At that time I was the Acting Financial Services Manager of MIAA, sir, and all withdrawals of
funds should have my signature because I was one of the signatories at that time.

Q As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in
similar requests for the issuance of Manager's checks by the PNB?

A That is the only occasion I signed, sir.

Q Did you say you were ordered by Mr. Tabuena to sign the request?

A Yes, sir, and I think the order is part of the exhibits and based on that order, I co-signed in the
request for the issuance of Manager's check in favor of Mr. Luis Tabuena.

PROS VIERNES

Q Was there a separate written order for you to co-sign with Mr. Tabuena?

WITNESS

A Yes, sir, an order was given to me by Mr. Tabuena.

*PJ GARCHITORENA

Was that marked in evidence?

WITNESS

Yes, your Honor.

*PJ GARCHITORENA

What exhibit?

WITNESS

I have here a copy, your Honor. This was the order and it was marked as exhibit "N".

PROS VIERNES

It was marked as Exhibit "M", your Honor.

Q How did you know there was an existing liability of MIAA in favor of PNCC at that time?

A Because prior to this memorandum of Mr. Tabuena, we prepared the financial statement of
MIAA as of December 31, 1985 and it came to my attention that there was an existing liability of
around P27,999,000.00, your Honor.

Q When was that Financial Statement prepared?

A I prepared it around January 22 or 24, something like that, of 1986, sir.

Q Is it your usual practice to prepare the Financial Statement after the end of the year within three
(3) weeks after the end of the year?

A Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on or
before the 4th Friday of the month because there will be a Board of Directors Meeting and the
Financial Statement of the prior month will be presented and discussed during the meeting.

*PJ GARCHITORENA

*Q This matter of preparing Financial Statement was not an annual activity but a monthly
activity?

A Yes, your Honor.

*Q This Financial Statement you prepared in January of 1986 recapitulated the financial condition
as of the end of the year?

A Yes, your Honor.

PJ GARCHITORENA

Continue.

PROS VIERNES

Q You made mention of a request for Escalation Clause by former Minister Ongpin. Did you
personally see that request?

A When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir. I have no
file because I just read it.

Q It was Mr. Tabuena who showed you the letter of Minister Ongpin?

A Yes, sir.

*PJ GARCHITORENA

And that will be Exhibit?

ATTY. ANDRES

Exhibit "2" and "2-A", your Honor.

PROS VIERNES

Q You also stated that you were with Mr. Tabuena when you withdrew the amount of P5 million
from the PNB Extension Office at Villamor?
A Yes, sir.

Q Why was it necessary for you to go with him on that occasion?

A Mr. Tabuena requested me to do the counting by million, sir. So what I did was to bundle count
the P5 million and it was placed in two (2) peerless boxes.

Q Did you actually participate in the counting of the money by bundles?

A Yes, sir.

Q Bundles of how much per bundle?

A If I remember right, the bundles consisted of P100s and P50s, sir.

Q No P20s and P10s?

A Yes, sir, I think it was only P100s and P50s.

*PJ GARCHITORENA

*Q If there were other denominations, you can not recall?

A Yes, your Honor.

PROS VIERNES

Q In how many boxes were those bills placed?

A The P5 million were placed in two (2) peerless boxes,

Q And you also went with Mr. Tabuena to Aguado?

A No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr. Tabuena, I
was left behind and I went back to my office at MIA.

Q But the fact is that, this P5 million was withdrawn at passed 5:00 o'clock in the afternoon?

A I started counting it I think at around 4:30, sir. It was after office hours. But then I was there at
around 4:00 o'clock and we started counting at around 4:30 p.m. because they have to place it in a
room, which is the office of the Manager at that time.

Q And Mr. Tabuena left for Malacañang after 5:00 o'clock in the afternoon of that date?

A Yes, sir. After we have counted the money, it was placed in the peerless boxes and Mr. Tabuena
left for Malacanang.

PROS VIERNES

Q And you yourself, returned to your office at MIA?

WITNESS

A Yes, sir.

Q Until what time do you hold office at the MIA?

A Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in the office, sir.

Q So, even if it was already after 5:00 o'clock in the afternoon, you still went back to your office
at MIA?

A Yes, sir.

PROS VIERNES

That will be all, your Honor.

PJ GARCHITORENA
Redirect?

ATTY. ESTEBAL

No redirect, your Honor.

*PJ GARCHITORENA

Questions from the Court.

*AJ DEL ROSARIO

*Q Did you not consider it as odd that your obligation with the PNCC had to be paid in cash?

WITNESS

A Based on the order of President Marcos that we should pay in cash, it was not based on the
normal procedure, your Honor.

*Q And, as Acting Financial Services Manager, you were aware that all disbursements should be
covered by vouchers?

A Yes, your Honor, the payments should be covered by vouchers. But then, inasmuch as what we
did was to prepare a request to the PNB, then this can be covered by Journal Voucher also.

*Q Was such payment of P5 million covered by a Journal Voucher?

A Yes, your Honor.

*Q Did you present that Journal Voucher here in Court?

A We have a copy, your Honor.

*Q Do you have a copy or an excerpt of that Journal Voucher presented in Court to show that
payment?

A We have a copy of the Journal Voucher, your Honor.

*Q Was this payment of P5 million ever recorded in a cashbook or other accounting books of
MIAA ?

A The payment of P5 million was recorded in a Journal Voucher, your Honor.

*PJ GARCHITORENA

*Q In other words, the recording was made directly to the Journal?

WITNESS

A Yes, your Honor.

*Q There are no other separate documents as part of the application for Manager's Check?

A Yes, your Honor, there was none.

*AJ DEL ROSARIO

*Q After the payment was made, did your office receive any receipt from PNCC?

A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, your Honor.
Inasmuch as the payment should be made through the Office of the president, I accepted the
receipt given by Mrs. Fe Gimenez to Mr. Tabuena.

*Q After receiving that receipt, did you prepare the necessary supporting documents, vouchers,
and use that receipt as a supporting document to the voucher?

A Your Honor, a Journal Voucher was prepared for that.

*Q How about a disbursement voucher?

A Inasmuch as this was a request for Manager's check, no disbursement voucher was prepared,
your Honor.

*AJ DEL ROSARIO

*Q Since the payment was made on January 31, I986, and that was very close to the election held
in that year, did you not entertain any doubt that the amounts were being used for some other
purpose?

ATTY. ESTEBAL

With due respect to the Honorable Justice, we are objecting to the question on the ground that it is
improper.

*AJ DEL ROSARIO

I will withdraw the question.

*PJ GARCHITORENA

What is the ground for impropriety?

ATTY. ESTEBAL

This is not covered in the direct examination, and secondly, I don't think there was any basis, your
Honor.

*PJ GARCHITORENA

Considering the withdrawal of the question, just make the objection on record.

*AJ HERMOSISIMA

*Q As a Certified Public Accountant and Financial Manager of the MIAA, did you not consider it
proper that a check be issued only after it is covered by a disbursement voucher duly approved by
the proper authorities ?

A Your Honor, what we did was to send a request for a Manager's check to the PNB based on the
request of Mr. Tabuena and the order of Mr. Tabuena was based on the Order of President
Marcos.

*PJ GARCHITORENA

*Q In your capacity as Financial Services Manager of the MIAA, did you not think it proper to
have this transaction covered by a disbursement voucher?

WITNESS

A Based on my experience, payments out of cash can be made through cash vouchers, or even
though Journal Vouchers, or even through credit memo, your Honor.

*AJ HERMOSISIMA

*Q This was an obligation of the MIAA to the PNCC. Why did you allow a disbursement by
means of check in favor of Mr. Luis Tabuena, your own manager?

A We based the payment on the order of Mr. Tabuena because that was the order of President
Marcos to pay PNCC through the Office of the President and it should be paid in cash, your
Honor.

*Q You are supposed to pay only on legal orders. Did you consider that legal?

ATTY. ESTEBAL

With due respect to the Honorable Justice, the question calls for a conclusion of the witness.

*PJ GARCHITORENA

Considering that tire witness is an expert, witness may answer.

WITNESS

A The order of president Marcos was legal at that time because the order was to pay PNCC the
amount of P5 million through the Office of the President and it should be paid in cash, your
Honor. And at that time, I know for a fact also that there was an existing P.D. wherein the
President of the Republic of the Philippines can transfer funds from one office to another and the
PNCC is a quasi government entity at that time.

*AJ HERMOSISIMA

*Q Are you saying that this transaction was made on the basis of that P.D. which you referred to?

A I am not aware of the motive of the President, but then since he is the President of the
Philippines, his order was to pay the PNCC through the Office of the President, your Honor.

*Q As Financial Manager, why did you allow a payment in cash when ordinarily payment of an
obligation of MIAA is supposed to be paid in check?

A I caused the payment through the name of Mr. Tabuena because that was the order of Mr.
Tabuena and also he received an order coming from the President of the Philippines at that time,
your Honor.

*PJ GARCHITORENA

*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain
statements of accounts earlier made in the same journal?

In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction
was otherwise not recorded.

WITNESS

A Yes, your Honor.

*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper
only because of the exceptional nature of the transactions?

A Yes, your Honor.

*Q In other words, as an Accountant, you would not normally authorize such a movement of
money unless it is properly documented?

ATTY. ESTEBAL

With due respect to the Honorable Presiding Justice, I think the question is misleading because
what the witness stated is. . .

*PJ GARCHITORENA

Be careful in your objection because the witness understands the language you are speaking, and
therefore, you might be coaching him.

ATTY. ESTEBAL

No, your Honor. I am also an accountant that is why I could say that. . .

*PJ GARCHITORENA

Please be simple in your objection.

ATTY. ESTEBAL

The question is misleading on the ground that what the witness stated earlier is that the Journal
Voucher in this particular case was supported, your Honor.

*PJ GARCHITORENA

Overruled, may answer.

WITNESS
A The transaction was fully documented since we have the order of the General Manager at that
time and the order of President Marcos, your Honor.

*Q Are you saying the Order of the General Manager is an adequate basis for the movement of
money?

A Yes, your Honor, because at that time we have also a recorded liability of P27 million.

*Q we are not talking of whether or not there was a liability. What we are saying is, is the order of
the General Manager by itself adequate with no other supporting papers, to justify the movement
of funds?

A Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liability of
P27,931,000.00, inasmuch as we have that liability and I was shown the order of President Marcos
to pay P5 million through the Office of the President, I considered the order of Mr. Luis Tabuena,
the order of President Marcos and also the existing liability of P27 million sufficient to pay the
amount of P5 million. Inasmuch as there is also an escalation clause of P99.1 million, the payment
of P5 million is fully covered by those existing documents.

*PJ GARCHITORENA

You keep flooding us with details we are not asking for. We are not asking you whether or not
there was valid obligation. We are not asking you about the escalation clause. We are asking you
whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of
funds?

WITNESS

When we pay, your Honor, we always look for the necessary documents and at that time I know
for a fact that there was this existing liability.

*PJ GARCHITORENA

When we ask questions and when we answer them, we must listen to the question being asked and
not to whatever you wanted to say. I know you are trying to protect yourself. We are aware of
your statement that there are all of these memoranda.

*Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is
adequate?

WITNESS

A As far as I am concerned, your Honor, inasmuch as we have a liability and I was shown the
Order of President Marcos to pay PNCC through his office, I feel that the order of the General
Manager, the order of President Marcos, and also the memorandum of Minister Ongpin are
sufficient to cause the payment of P5 million.

*PJ GARCHITORENA

*Q This Presidential Decree which authorizes the President to transfer funds from one department
to another, is this not the one that refers to the realignment of funds insofar as the Appropriation
Act is concerned?

WITNESS

A Because at that time, your Honor, I have knowledge that the President is authorized through a
Presidential Decree to transfer government funds from one office to another.

*PJ GARCHITORENA

*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the
Appropriation Act?

A I think the liability was duly recorded and appropriations to pay the amount is. . . . (interrupted)

*PJ GARCHITORENA

*Q Tell me honestly, is your answer responsive to the question or are you just throwing words at
us in the hope that we will forget what the question is?

A No, your Honor.

*Q Are you telling us that the debts incurred by MIAA ate covered by the Appropriations Act so
that the payment of this debt would be in the same level as the realignment of funds authorized the
President? Or are you telling as you did not read the Decree?

A I was aware of that Decree, your Honor.

*PJ GARCHITORENA

Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this
movement of funds?

ATTY. ESTEBAL

Yes, your Honor.

*PJ GARCHITORENA

*Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was
he?

A No, your Honor.

*Q In fact, for purposes of internal control, you have different officers and different officials in
any company either government or private, which are supposed to check and balance each other, is
it not?

A Yes, your Honor.

*Q So that when disbursements of funds are made, they are made by authority of not only one
person alone so that nobody will restrain him?

A Yes, your Honor.

*Q These checks and balances exist in an entity so that no one person can dispose of funds in any
way he likes?

A Yes, your Honor.

*Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents
is for the same purpose?

A Yes, your Honor.

*PJ GARCHITORENA

*Q In other words, the co-signatories counter check each other?

WITNESS

A Yes, your Honor.

*Q In your case, you would be the counter check for Mr. Tabuena?

A Yes, your Honor.

*Q In the other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager
and as counter signatory are in a position to tell Mr. Tabuena, "I am sorry, you are my superior but
this disbursement is not proper and, therefore, I will not sign it"., if in your opinion the
disbursement is not proper?

A Yes, your Honor.

*Q Therefore, as a co-signatory, you expected to exercise your judgment as to the propriety of a

particular transactions?

A Yes, your Honor.

*Q And this is something you know by the nature of your position and because you are a Certified
Public Accountant?
 A Yes, your Honor.

*AJ DEL ROSARIO

*Q You admit that the payment of P5 million and P50 million were unusual in the manner with
which they were disposed?

A Yes, your Honor.

*Q Did you submit a written protest to the manner in which such amount was being disposed of?

A A written protest was not made, your Honor, but I called the attention of Mr. Tabuena that since
this payment was upon the order of President Marcos, then I think as President he can do things
which are not ordinary.

*Q If you did not prepare a written protest, did you at least prepare a memorandum for the record
that this was an extra-ordinary transaction?

A I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and no written
note, your Honor.

PJ GARCHITORENA

Thank you very much Mr. Peralta, you are excused. . . . 43

This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind upon any material point
which presents itself during the trial of a case over which he presides. 44 But not only should his examination be limited to asking
"clarificatory" questions, 45 the right should be sparingly and judiciously used; for the rule is that the court should stay out of it as
much as possible, neither interfering nor intervening in the conduct of the trial. 46 Here, these limitations were not observed. Hardly in
fact can one avoid the impression that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the
prosecution in proving the case against Tabuena and Peralta when the Justices cross-examined the witnesses, their cross- examinations
supplementing those made by Prosecutor Viernes and far exceeding the latter's questions in length. The " cold neutrality of an
impartial judge" requirement of due process was certainly denied Tabuena and Peralta when the court, with its overzealousness,
assumed the dual role of magistrate and advocate. In this connection, the observation made in the Dissenting Opinion to the effect that
the majority of this Court was "unduly disturbed" with the number of court questions alone, is quite inaccurate. A substantial portion
of the TSN was incorporated in the majority opinion not to focus on "numbers" alone, but more importantly to show that the court
questions were in the interest of the prosecution and which thus depart from that common standard of fairness and impartiality. In fact,
it is very difficult to be, upon review of the records, confronted with "numbers" without necessarily realizing the partiality of the
Court. In "US v. De Sisto" (2 Cir., 1961, 289 F 2d 833), for example, a new trial was required because the trial judge, as in this case,
indulged in extensive questioning of defendant and his witnesses, and the reviewing court also had to amplify on "numbers" to bolster
this. It was pointed out in the "De Sisto" case that the judge asked 3,115 questions of all witnesses, the prosecutor asked but 1,381,
defense counsel 3,330. The judge's questions to the defendant De Sisto totalled 306, the prosecutor's 347, and the defense counsel's,
201. After referring to these figures, the court stated:

. . . It is indeed an impressive proportion, but no such mathematical computation is of itself determinative. However,
taking all this in conjunction with the long and vigorous examination of the defendant himself by the judge, and the
repeated belittling by the judge of defendant's efforts to establish the time that Fine left the pier, we fear that in its
zeal for arriving at the facts the court here conveyed to the jury too strong an impression of the court's belief in the
defendant's probable guilt to permit the jury freely to perform its own function of independent determination of the
facts. . . .

The majority believes that the interference by the Sandiganbayan Justices was just too excessive that it cannot be justified
under the norm applied to a jury trial, or even under the standard employed in a non-jury trial where the judge is admittedly
given more leeway in propounding questions to clarify points and to elicit additional relevant evidence. At the risk of being
repetitious, we will amplify on this via some specific examples. Based on the evidence on record, and on the admission of
Tabuena himself, the P55 million was delivered to the President's Office thru Mrs. Gimenez, in obedience to the Presidential
directive. One Sandiganbayan Justice, however, hurled the following questions to Peralta:

AJ DEL ROSARIO

Q: Since the payment was made on January 31, 1986, and that was very close to the election held
in that year, did you not entertain any doubt that the amounts were being used for some other
purposes?

ATTY. ESTEBAL

With due respect to the Honorable Justice, We are objecting to the question on the ground that it is
improper.

AJ DEL ROSARIO

I will withdraw the question.

 PJ GARCHITORENA

What is the ground for impropriety?

ATTY. ESTEBAL

This is not covered in the direct examination, and secondly, I don't think there was any basis, Your
Honor.

PJ GARCHITORENA

Considering the withdrawal of the question, just make the objection on record.

Nothing from the preceding questions of counsels or of the court would serve as basis for this question. How then, can this be
considered even relevant? What is the connection between the payment made to the President's office and the then
forthcoming presidential "snap election"? In another instance, consider the following questions of Presiding Justice
Garchitorena:

*PJ GARCHITORENA

*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain
statements of accounts earlier made in the same journal?

x x x           x x x          x x x

*Q In other words, really what you are telling us is that, a Journal Voucher is to explain a
transaction was otherwise not recorded.

x x x           x x x          x x x

*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper
only because of the exceptional nature of the transactions?

x x x           x x x          x x x

*Q In other words, as an Accountant, you would not normally authorize such a movement of
money unless it is properly documented?

ATTY. ESTEBAL

With due respect to the Honorable Presiding Justice, I think the question is misleading because
what the witness stated is . . .

*PJ GARCHITORENA

Be careful in your objection because the witness understands the language you are speaking, and
therefore, you might be coaching him.

ATTY. ESTEBAL

No, your Honor. I am also an accountant that is why I could say that . . .

*PJ GARCHITORENA

Please be simple in your objection.

ATTY. ESTEBAL

The question is misleading on the ground that what the witness stated earlier is that the Journal
Voucher in this particular case was supported, your Honor.

*PJ GARCHITORENA

Overruled may answer.

WITNESS

A The transaction was fully documented since we have the order of the General Manager at that
time and the order of President Marcos, your Honor.
*Q Are you saying the Order of the General Manager is an adequate basis for the movement of
money?

*Q We are not talking of whether or not there was a liability. What we are saying is, is the order of
the General Manager by itself adequate with no other supporting papers, to justify the movement
of funds?

*PJ GARCHITORENA

You keep flooding us with details we are not asking for. We are not asking you whether or not
there was valid obligation. We are not asking you about the escalation clause. We are asking you
whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of
funds?

*PJ GARCHITORENA

When we ask questions and when we answer them, we must listen to the question being asked and
not to whatever you wanted to say. I know you are trying to protect yourself. We are aware of
your statement that there are all of these memoranda.

*Q By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is
adequate?

*PJ GARCHITORENA

*Q This Presidential Decree which authorizes the President to transfer funds from one department
to another, is this not the one that refers to the realignment of funds insofar as the Appropriation
Act is concerned?

*PJ GARCHITORENA

*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the
Appropriation Act?

*PJ GARCHITORENA

*Q Tell me honestly, is your answer responsive to the question or are you just throwing words at
us in the hope that we will forget what the question is?

xxx xxx xxx

*Q Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so
that the payment of this debt would be in the same level as the realignment of funds authorized the
President? Or are you telling as you did not read the Decree?

*PJ GARCHITORENA

Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this
movement of funds?

ATTY. ESTEBAL

Yes, your Honor.

*PJ GARCHITORENA

*Q It is true that President Marcos was the President, but he was not an officer of the MIAA, was
he?

*Q In fact, for purposes of internal control, you have different in officers and different officials in
any company either government or private, which are supposed to check and balance each other, is
it not?

*Q So that when disbursements of funds are made, they are made by authority of not only one
person alone so that nobody will restrain him?

*Q These checks and balances exist in an entity so that no one person can dispose of funds in any
way he likes?

*Q And in fact, the purpose for having two (2) signatories to documents and negotiable documents
is for the same purpose?
 *PJ GARCHITORENA

*Q In other words, the co-signatories counter check each other?

*Q In your case, you would be the counter check for Mr. Tabuena?

*Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as
counter signatory are in a position to tell Mr. Tabuena, "I am sorry, you are my superior but this
disbursement is not proper and, therefore, I will not sign it.", if in your opinion the disbursement is
not proper?

*Q Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a
particular transaction ?

*Q And this is something you know by the nature of your position and because you are a Certified
Public Accountant? 47

How can these questions be considered clarificatory when they clearly border more on cross-examination questions? Thus,
the Dissenting Opinion's focus on the distinction between the two kinds of trial to justify the Sandiganbayan's active
participation in the examination of petitioners Tabuena and Peralta and witness Monera, with due respect, appears
insignificant to this case. Let it, therefore, be emphasized anew that:

A trial judge should not participate in the examination of witnesses as to create the impression that he is allied with
the prosecution.48

We doubt not that the sole motive of the learned judge was to ascertain the truth of the transaction, but it is never
proper for a judge to discharge the duties of a prosecuting attorney. However anxious a judge may be for the
enforcement of the law, he should always remember that he is as much judge in behalf of the defendant accused of
crime, and whose liberty is in jeopardy, as he is judge in behalf of the state, for the purpose of safeguarding the
interests of society. 49

Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length. The circumstances
may be such in a given case as to justify the court in so doing. . . . This court, however, has more than once said that
the examination of witnesses is the more appropriate function of counsel, and the instances are rare and the
conditions exceptional which will justify the presiding judge in conducting an extensive examination. It is always
embarrassing for counsel to object to what he may deem improper questions by the court. Then, in conducting a
lengthy examination, it would be almost impossible for the judge to preserve a judicial attitude. While he is not a
mere figurehead or umpire in a trial, and it is his duty to see that justice is done, he will usually not find it necessary
to conduct such examinations. The extent to which this shall be done must largely be a matter of discretion, to be
determined by the circumstances of each particular case, but in so doing he must not forget the function of the judge
and assume that of an advocate. . . 50

While it is true that the manner in which a witness shall be examined is largely in the discretion of the trial judge, it
must be understood that we have not adopted in this country the practice of making the presiding judge the chief
inquisitor. It is better to observe our time-honored custom of orderly judicial procedure, even at the expense of
occasional delays. . . . The judge is an important figure in the trial of a cause, and while he has the right, and it is
often his duty, to question witnesses to the end that justice shall prevail, we can conceive of no other reason, for him
to take the trial of the cause out of the hands of counsel. 51

The examination of witnesses is the more appropriate function of counsel, and it is believed the instances are rare
and the conditions exceptional in a high degree which will justify the presiding judge in entering upon and
conducting an extended examination of a witness, and that the exercise of a sound discretion will seldom deem such
action necessary or advisable. 52

He [the judge] may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of
time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or
participation in, the examination of witnesses, or a severe attitude on his part toward witnesses, especially those who
are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the
cause, or the ascertainment of the truth in respect thereto. 53

The impartiality of the judge — his avoidance of the appearance of becoming the advocate of either one side or the
other of the pending controversy is a fundamental and essential rule of special importance in criminal cases. . . 54

Our courts, while never unmindful of their primary duty to administer justice, without fear or favor, and to dispose
of these cases speedily and in as inexpensive a manner as is possible for the court and the parties, should refrain
from showing any semblance of one-sided or more or less partial attitude in order not to create any false impression
in the minds of the litigants. For obvious reasons, it is the bounden duty of all to strive for the preservation of the
people's faith in our courts.55

Time and again this Court has declared that due process requires no less than the cold neutrality of an impartial
judge. Bolstering this requirement, we have added that the judge must not only be impartial but must also appear to
be impartial, to give added assurance to the parties that his decision will be just. The parties are entitled to no less
than this, as a minimum guaranty of due process. 56
We are well aware of the fear entertained by some that this decision may set a dangerous precedent in that those guilty of enriching
themselves at the expense of the public would be able to escape criminal liability by the mere expedient of invoking "good faith". It
must never be forgotten, however, that we render justice on a case to case basis, always in consideration of the evidence that is
presented. Thus, where the evidence warrants an acquittal, as in this case, we are mandated not only by the dictates of law but likewise
of conscience to grant the same. On the other hand, it does not follow that all those similarly accused will necessarily be acquitted
upon reliance on this case as a precedent. For the decision in this case to be a precedent, the peculiar circumstances and the evidence
that led to the petitioner's acquittal must also be present in subsequent cases.

Furthermore, as between a mere apprehension of a "dangerous precedent" and an actual violation of constitutionally enshrined rights,
it is definitely the latter that merits our immediate attention. For the most dangerous precedent arises when we allow ourselves to be
carried away by such fears so that it becomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to bring
to justice the malefactors of the Marcos regime, we must not succumb to the temptation to commit the greatest injustice of visiting the
sins of the wrongdoers upon an innocent.

WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta are hereby ACQUITTED of the
crime of malversation as defined and penalized under Article 217 of the Revised Penal Code. The Sandiganbayan Decision of October
12, 1990 and the Resolution dated December 20, 1991 are REVERSED and SET ASIDE.

SO ORDERED.

Narvasa, C.J., Vitug, Kapunan and Mendoza, JJ., cocnur.

Regalado, Bellosillo, and Torres, Jr., JJ., pro hac vice.

Hermosisima, Jr,., J., took no part.

Separate Opinions

DAVIDE, JR., J., dissenting:

Last 20 September 1996 in Regala v. Sandiganbayan,1 this Court erected a barrier to the constitutionally mandated task to recover ill-
gotten wealth and in the punishment of those who dirtied their hands with it. This the Court did by impliedly granting immunity from
civil suit or liability under an expanded interpretation of the lawyer-client privilege, lawyers who were alleged to have acted as co-
conspirators or dummies of certain parties in the acquisition of such wealth.

The acquittal decreed by the majority in the cases under consideration places another obstacle to such recovery and punishment by
granting immunity from any criminal liability those who were ordered by then President Marcos to disburse government funds for
alleged payment of obligations. This is the immediate impression anyone can get from the following sweeping pronouncement in
the ponencia.2

In the case at bench, the order emanated from the office of the President and bears the signature of the President
himself, the highest official of the land. It carries with it the presumption that it was regularly issued. And on its
face, the memorandum is patently lawful for no law makes the payment of an obligation illegal. This fact, coupled
with the urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis essentia. . .
.

What this suggests is that no one could disobey then President Marcos, a suggestion made more eloquent with the quotation
of the dissenting opinion of Mr. Justice Cruz in Development Bank of the Philippines v. Pundogar.3 That dissent cannot be
used to justify the petitioners' "obedience," otherwise, this Court would thus overturn the majority opinion in the said case
and adopt the dissent as the new rule.

Henceforth, all those similarly situated as the appellants or those who could simply provide any reason for their  compelled obedience
to Mr. Marcos can go scot-free. The meaning of EDSA and its message for history would thus be obliterated. The acquittal then
perpetuates a sad day for this Court — a day of mourning for those who fought against the dictatorship and of triumph and joy for the
dictator's collaborators, nominees, associates, and friends.

I cannot join the majority in these cases.

My analysis of the ponencia indicates that the acquittal is based on the following:

1. The accused-appellants merely acted in obedience to an order by a superior for some lawful
purpose; hence, they incur no criminal liability pursuant to Article 11(6) of the Revised Penal
Code.

2. Even granting that the order was not for a lawful purpose, they acted in good faith.
 3. Their basic constitutional right to due process was violated by the way the Sandiganbayan
actively took part in the questioning of a defense witness and of the accused themselves.

I shall first take up the third.

The ponencia admits that the appellants did not raise as an issue the Sandiganbayan's violation of their right to due process;
nevertheless, it ruled that such failure is not an impediment to the consideration of the violation "as additional basis for a reversal since
the settled doctrine is that an appeal throws the whole case open to review, and it becomes the duty of the appellate court to correct
such errors as may be found in the judgment appealed from whether they are made the subject of assignments of error or not. 4

I beg to disagree.

First, there is no showing at all that the extensive participation by the Justices of the Sandiganbayan in questioning the appellants and
their witness indicated prejudgment of guilt, bias, hatred, or hostility against the said appellants. On the contrary, the quoted portions
of the questions propounded by the Justices manifest nothing but a sincere desire to ferret out the facts to arrive at the truth which are
crucial in the determination of the innocence or guilt of the appellants. These Justices, as trial magistrates, have only exercised one of
the inherent rights of a judge in the exercise of judicial function. What this Court stated eighty-three years ago in United States
v. Hudieres5 needs repeating:

It is very clear, however, from a review of the whole proceedings that the only object of the trial judge in
propounding these questions was to endeavor as far as possible to get at the truth as to the facts to which the
witnesses were testifying. The right of a trial judge to question the witnesses with a view to satisfying his mind upon
any material point which presents itself during the trial of a case over which he presides is too well established to
need discussion. The trial judges in this jurisdiction are judges of both the law and the facts, and they would be
negligent in the performance of their duties if they permitted a miscarriage of justice as a result of a failure to
propound a proper question to a witness which might develop some material fact upon which the judgment of the
case should turn. So in a case where a trial judge sees that the degree of credit which he is to give the testimony of a
given witness may have an important bearing upon the outcome, there can be no question that in the exercise of a
sound discretion he may put such questions to the witness as will enable him to formulate a sound opinion as to the
ability or willingness of the witness to tell the truth. The questions asked by the trial judge in the case at bar were in
our opinion entirely proper, their only purpose being to clarify certain obscure phases of the case; and while we are
inclined to agree with counsel that some of the observations of the trial judge in the course of his examination might
well have been omitted, there is no reason whatever to believe that the substantial rights of the defendants were in
anywise prejudiced thereby.

That the appellants themselves did not find any impropriety in the conduct of the Justices, or that if they did they find nothing therein
to prejudice their right to due process is best proven by their failure to assign it as error.

Second, even granting arguendo that the conduct of the Justices constituted such a violation, the appellants are forever estopped from
raising that issue on ground of waiver. This Court would risk an accusation of undue partiality for the appellants were it to give them
premium for their torpor and then reward them with an acquittal. Such waiver is conclusively proven in these cases. From the quoted
portions of the testimonies of the witnesses for the appellants, it is clear that their counsel did not object to, or manifest on record his
misgivings on, the active participation of the Justices in the examination (or cross-examination) of the witnesses. Nothing could have
prevented the counsel for the appellants from doing so. Then, too, as correctly pointed out in the ponencia, they made no assignment
of error on the matter.

In our jurisdiction, rights may be waived unless the waiver is contrary to law, public order, public policy, morals, or good customs, or
is prejudicial to a third person with a right recognized by law.6

In People v. Donato,7 this Court made the following statement on what rights may be waived:

As to what rights and privileges may be waived, the authority is settled:

. . . the doctrine of waiver extends to rights and privileges of any character, and, since the word
"waiver" covers every conceivable right, it is the general rule that a person may waive any matter
which affects his property, and any alienable right or privilege of which he is the owner or which
belongs to him or to which he is legally entitled, whether secured by contract, conferred with
statute, or guaranteed by constitution, provided such rights and privileges rest in the individual,
are intended for his sole benefit, do not infringe on the rights of others, and further provided the
waiver of the right or privilege is not forbidden by law, and does not contravene public policy; and
the principle is recognized that everyone has a right to waive, and agree to waive, the advantage of
a law or rule made solely for the benefit and protection of the individual in his private capacity, if
it can be dispensed with and relinquished without infringing on any public right, and without
detriment to the community at large. . . .

Although the general rule is that any right or privilege conferred by statute or guaranteed by
constitution may be waived, a waiver in derogation of a statutory right is not favored, and a waiver
will be inoperative and void if it infringes on the rights of others, or would be against public policy
or morals and the public interest may be waived.
 While it has been stated generally that all personal rights conferred by statute and guaranteed by
constitution may be waived, it has also been said that constitutional provisions intended to protect
property may be waived, and even some of the constitutional rights created to secure personal
liberty are subjects of waiver.8

In Commonwealth vs. Petrillo,9 it was held:

Rights guaranteed to one accused of a crime fall naturally into two classes: (a) those in which the
state, as well as the accused, is interested; and (b) those which are personal to the accused, which
are in the nature of personal privileges. Those of the first class cannot be waived; those of the
second may be.

It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action which would
be invalid if taken against his will. 10

This Court has recognized waivers of constitutional rights such as, for example, the right against unreasonable
searches and seizures; 11 the right to counsel and to remain silent; 12 and the right to be heard. 13

Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights. Section 12(1) of
Article III thereof on the right to remain silent and to have a competent and independent counsel, preferably of his
own choice states:

. . . These rights cannot be waived except in writing and in the presence of counsel.

This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests that the
other rights may be waived in some other form or manner provided such waiver will not offend Article 6 of the Civil
Code.

We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a right which is
personal to the accused and whose waiver would not be contrary to law, public order, public policy, morals, or good
customs, or prejudicial to a third person with a right recognized by law.

In the cases below, the perceived violation, if at all it existed, was not of the absolute totality of due process, but more appropriately of
the right to an impartial trial, which is but an aspect of the guarantee of due process. 14 I submit that the right to an impartial trial is
waivable.

II

I also disagree with the view of the majority that all the requisites of the sixth justifying circumstance in Article 11 of the Revised
Penal Code are present. I submit that the 8 January 1986 Memorandum of President Marcos can by no means be considered a "lawful"
order to pay P55 million to the PNCC as alleged partial payment of the MIAA's account to the former. The alleged basis of such
Memorandum is the 7 January 1985 Memorandum of Trade and Industry Minister Roberto Ongpin, which even confirms the absence
of any factual basis for the order of payment of P55 million:

In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly CDCP,
has accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusive of
accomplishments for the aforecited contracts. In accordance with contract provisions, outstanding advances totalling
P93.9 million are to be deducted from said billings which will leave a net amount due to PNCC of only P4.5 million,
thus:

At the same time, PNCC has potential escalation claims amounting to P99 million in the following states of
approved/evaluation:

— Approved by Price Escalation Committee

(PEC) but pending for lack of funds P 1.9 million

— Endorsed by project consultants and

currently being evaluated by PEC 30.7 million

— Submitted by PNCC directly to PEC

and currently under evaluation 66.5 million
—————
T o t a l P99.1 million

There has been no funding allocation for any of the above escalation claims due to budgetary constraints.

The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due to PNCC
have not been paid, resulting in undue burden to PNCC due to additional cost of money to service its obligations for
this contract.

To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we
request for His Excellency's approval for a deferment of the repayment of PNCC's advances to the extent of P30
 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has been
officially recognized by MIADP consultants but could not be paid due to lack of fundings.

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This
amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the
repayment of advances of P63.9 million.

If Ongpin's memorandum is given full faith, it is clear that PNCC's "accomplishment billings" for work accomplished, including
accomplishments on the "supplemental contracts" (whose authority therefor was just sought for), aggregated to P98.4 million. Since
there were advances given to PNCC in the total amount of P93.9 million, the net amount due the PNCC was only P4.5 million.

However, in view of the approval by then President Marcos of Ongpin's request "for a deferment of the repayment of PNCC's
advances to the extent of P30 million," only P63.9 million of PNCC's advances was to be deducted from the accomplishment billings
of P98.4 million. The net amount due thus became P34.5 million. Hence, as pointed out by the Sandiganbayan, if any payments were
due under Ongpin's Memorandum they would only be for that amount (P34.5 million). The Order of then President Marcos to
withdraw has, therefore, exceeded by P20.5 million. Clearly, the order of payment of P55 million had no factual and legal basis and
was therefore unlawful.

III

Not an iota of good faith was shown in the conduct of the appellants.

Being responsible accountable officers of the MIAA, they were presumed to know that, in light of "the undeferred portion of the
repayment" of PNCC's advances in the amount of P63.9 million, the MIAA's unpaid balance was only P34.5 million. They also ought
to know the procedure to be followed in the payment of contractual obligations. First and foremost there were the submission by the
PNCC of its claims with the required supporting documents and the approval of the claims by the appropriate approving authority of
MIAA. When then President Marcos ordered immediate payment, he should not have been understood as to order suspension of the
accepted budgeting, accounting, and auditing rules on the matter. Parenthetically, it may be stated here that although President Marcos
was a dictator, he was reported to be, and even projected himself as, a "faithful" advocate of the rule of law. As a matter of fact, he did
not hesitate to issue a decree, letter of instruction, or any presidential issuance in anticipation of any planned actions or activities to
give the latter the facade or semblance of legality, wisdom, or propriety. When he made the order to appellant Tabuena, President
Marcos must only be understood to order expeditious compliance with the requirements to facilitate immediate release of the money.
There was no way for Tabuena to entertain any fear that disobedience to the order because of its unlawfulness or delay in the
execution of the order due to compliance with the requirements would cause his head or life. He offered no credible evidence for such
fear. This Court should not provide one for him. That Tabuena served Mr. Marcos until the end of the latter's regime and even beyond
only proved a loyalty not based on fear but on other considerations.

Moreover, the manner the appellant effected the withdrawal was most unusual, irregular, and anomalous. He has not shown any
evidence that what he did was the usual practice in his office.

What happened in this case showed the appellants' complicity as principals by direct participation in the malversation of the MIAA's
funds. The appellants should, therefore, be thankful to the Sandiganbayan for holding them liable therefor only through negligence.

I vote then to AFFIRM in toto the assailed decision.

Padilla, Melo and Panganiban, JJ., concur.

ROMERO, J., dissenting:

Obedience, rightly directed, is a virtue well-worth cultivating — obedience of children to their elders; obedience to lawful authority by
citizens; obedience to the behests of what is highest and finest in one's self.

Misguided, such as indiscriminate obeisance to questionable mandates, no matter if emanating from authoritative figures whose
slightest whisper and scribbled orders are law, this can lead man to perdition.

In government, a pliant bureaucracy that is disinclined to resist unethical, immoral, even downright illegal directives from "above" is
easily corrupted and can only bring disrepute to the entire system. In this context, can subordinate public officials like herein petitioner
escape criminal prosecution by the simple expedient of claiming that they were merely following orders from a superior? This
disquisition will demonstrate that certain requisites are indispensable before anyone can claim immunity from penal sanctions for
seemingly justifiable acts.

This dissenting opinion will narrate the facts for the sake of accuracy for the ponencia seems to have overlooked or glossed over vital
circumstances which make the conclusion embodied herein irresistible.

Petitioners were charged with violation of Article 217 of the Revised Penal Code (the Code) for alleged malversation of a total of P55
million from the public funds of the Manila International Airport Authority (MIAA). The informations filed on three separate dates in
1986 accused them, as accountable officers, of intentionally withdrawing said amount for the ostensible purpose of paying a non-
existent obligation of MIAA to the Philippine National Construction Corporation (PNCC), but which they misappropriated and
converted for their personal use and benefit.

In their defense, petitioners claimed they acted in good faith and in compliance with a verbal and later, a written order from no less
than former President Ferdinand E. Marcos. In a Presidential Memorandum (the Marcos Memorandum) dated January 8, 1986, the
latter allegedly commanded petitioner Tabuena, in his capacity as General Manager of MIAA, "to pay immediately the Philippine
National Construction Corporation, thru this Office (Office of the President), the sum of FIFTY FIVE MILLION (P55,000,000.00)
PESOS in cash as partial payment of MIAA's account with said Company mentioned in a Memorandum of (Trade and Industry)
Minister Roberto Ongpin to this Office dated January 7, 1985 . . . ." 1 (The Ongpin Memorandum). On the assumption that MIAA
indeed had a due and demandable debt to PNCC for work done on the airport, Tabuena, with the help of Gerardo G. Dabao and
Adolfo M. Peralta, MIAA Assistant General Manager and Financial Services Department Acting Manager, respectively, made three
withdrawals from the account of MIAA with the Philippine National Bank first, on January 10, 1986 for P25 million, then on January
16, 1986 for another P25 million and lastly, on January 31, 1986 for P5 million. The three manager's checks covering the withdrawals
were all applied for and issued in the name of Tabuena. Curiously, while the checks were issued by the MIA extension office of PNB,
they were encashed at the Villamor Air Base branch. Each time the cash was delivered directly to the office of Marcos' private
secretary, Fe Roa-Gimenez. The latter issued a receipt 2 signed by her but only after the last delivery. No PNCC receipt was ever given
to petitioners.

On October 22, 1990, the Sandiganbayan's First Division rendered a decision finding petitioners guilty.

Petitioners raise two issues, namely, that they were charged with intentional malversation (which they labelled as malversation by
direct appropriation) but were convicted of malversation by negligence, and that they acted in good faith.

As regards the first argument, the variance between the crime charged and that proved by the prosecution is immaterial, as stated by
the ponente.

As regards the second issue, it is argued that good faith is a valid defense in malversation for it negates criminal intent. Petitioners
claim that when they committed the acts complained of, they were merely following then President Marcos' oral and written
directives. They rely on Article 11, paragraph 6 of the Code which states, inter alia:

Art. 11. Justifying circumstances. — The following do not incur any criminal liability:

xxx xxx xxx

6. Any person who acts in obedience to an order issued by a superior for some lawful purpose.

For an act to be justified under the abovequoted provision, therefore, three requisites must concur: (a) an order must have been issued
by a superior; (b) the order must be for a lawful purpose; and (c) the means used by the subordinate in carrying out such order must
itself be lawful.3

In the case at bar, Tabuena was allegedly ordered by President Marcos to pay the PNCC from MIAA's fund, thus ostensibly meeting
the first requirement but not the others. For there is a qualification which significantly changes the picture. The payment was to be in
cash and immediately made through the Office of the President. It is to be pointed out that it is one thing to be ordered to pay a due
and demandable obligation; it is another to make such payment to someone other than the lawful obligee and worse, when the
subordinate is forced to breach official channels to comply with the order.

It must be stressed that Tabuena and his co-accused, Peralta and Dabao, disregarded standard operating procedures in following the
President's order. As observed by the Sandiganbayan, "there were no vouchers to authorize the disbursements in question. There were
no bills to support the disbursement. There were no certifications as to the availability of funds for an unquestionably staggering sum
of P55 Million." Disbursement vouchers are specifically required under Sec. 4 (5) of Presidential Decree No. 1445 (P.D. No. 1445),
while the certificate of availability of funds is needed to comply with Sec. 47, Title I-B, Bk. V of the Administrative Code of
19874 and Sec. 344 of the Local Government Code of 1991. 5 To compound the duplicity, the checks, issued by one branch of PNB
were encashed in another — all made in cash instead of by crossed check payable to PNCC! Conspicuously, such cash outlay was
made without prior approval or authority of the Commission on Audit. 6 Finally, the last two payments were made despite the non-
issuance of a receipt for the first. In fact, the receipt given after the delivery of the last installment was not even issued by the PNCC,
the legal obligee and avowed recipient of the money. Instead it emanated from the office of Roa-Gimenez, a complete stranger to the
alleged contract between MIAA and PNCC, who did not even indicate in what capacity she signed it. To compound the mystery, the
money was even delivered to her office, not in Malacañang, but at nearby Aguado Street. The entire process, done with haste and with
a total disregard of appropriate auditing requirements was, in the words of petitioners themselves, an extraordinary
transaction," 7 admittedly "out of the ordinary" and "not based on normal procedure."8

Disbursement of government funds, especially one as gargantuan as the one made by petitioners, is a complex process, unlike the
basic over-the-counter transaction that they purportedly made it to appear. Far from being lawful, the payment of the alleged
obligation of MIAA to PNCC through the Office of the President may at best be labelled as irregular. "The term 'irregular expenditure'
signifies an expenditure incurred without adhering to established rules, regulations, procedural guidelines, policies, principles or
practices that have gained recognition in law. Irregular expenditures are incurred without conforming with prescribed usages and rules
of discipline. There is no observance of an established pattern, course, mode of action, behavior, or conduct in the incurrence of an
irregular expenditure. . . . ."9

Specifically, disbursement of public funds must conform with the following principles:

(1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. 10

(2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use,
benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest,
preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or
dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. 11
 (3) All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for
such purpose only. If the purpose for which this special fund was created has been fulfilled or abandoned, the
balance, if any, shall be transferred to the general funds of the Government. 12

(4) All resources of the government shall be managed, expended or utilized in accordance with law and regulations
and safeguarded against loss or wastage through illegal or improper disposition to ensure efficiency, economy and
effectiveness in the operations of government. The responsibility to take care such policy is faithfully adhered to
rests directly with the chief or head of the government agency concerned. 13

(5) Disbursement or disposition of government funds or property shall invariably bear the approval of the proper
officials. 14

(6) Claims against government funds shall be supported with complete documentation. 15

(7) All laws and regulations applicable to financial transactions shall be faithfully adhered to. 16

(8) Generally accepted principles and practices of accounting as well as of sound management and fiscal
administration shall be observed, provided that they do not contravene existing laws and regulations. 17

Assuming arguendo that petitioners acted in good faith in following the President's order, undeniably, they were negligent as found by
the trial court. The instructions in the President's order should have sufficed to put any accountable head of an office, Tabuena
included, on guard. Why was he being required to pay MIAA's obligation to the PNCC, if indeed there were any, and not directly to
the latter but through the Office of the President? Why was the entire transaction not coursed through proper channels, viz., the
accounting office? Why was such a huge disbursement to be made in cash, instead of by crossed check, which is not only safer, faster,
and more convenient, but in accord with auditing requirements?

Obedience to a superior's order does not connote blind obedience. Being the general manager of such a mammoth organization like the
MIAA, he should, at the very least, have exercised ordinary prudence by verifying with the proper official under him whether the
agency had indeed an outstanding indebtedness to the PNCC before ordering any payment to be made through official channels. Such
routine measures were cavalierly disregarded. The whole process seemed no different from a petty, personal transaction.

As evidence later revealed, PNCC's receivables from MIAA amounted to P102,475,392.35, the bulk of which comprised escalation
charges. From that time until Corazon C. Aquino assumed the Presidency, a total of P44.4 million was paid, but only P2 million of this
in cash; the rest was set off or compensated against other debts, or assigned to other creditors. The financial records did not show that
PNCC received any sums of money from MIAA during the period January to June, 1986 when the block payments were being made
in quarter millions. Only on September 25, 1986, long after President Marcos had gone, was an assignment of P23 million actually
made by MIAA in favor of PNCC. 18

Even the Ongpin Memorandum, which is the basis of the Marcos Memorandum, failed to show where the amount of P55 million
cropped up. The former contained, inter alia, the following matters: (a) it requested the President's approval of Minister Ongpin's
recommendations "for eight (8) supplemental contracts pertaining to the MIA Development Project (MIADP) between the Bureau of
Air Transport (BAT) and Philippine National Construction Corporation (PNCC), formerly CDCP, . . . ."; 19 (b) it informed the
President that PNCC had collectibles from MIAA only in the amount of P4.5 million, which is the difference between the
accomplishment billings on the MIADP totalling P98.4 million and PNCC's advances of P93.9 million; and (c) it informed the
President that PNCC had potential escalation claims against MIAA in the amount of P99 million, "potential" because they have yet to
be approved by the Price Escalation Committee (PEC).

The only remaining piece of evidence which would show that MIAA owed PNCC anything as of the date of the Marcos Memorandum
is MIAA's balance sheet, 20 which indicates its liability to PNCC as of December 31, 1985 to be P27,931,000.00. 21 How can
petitioners claim to have acted in good faith when they withdrew the P55 million from MIAA's funds knowing fully well that the
amount due PNCC was only a little over half that amount, as shown by their own evidence?

The ponencia states that ". . . . the good faith of Tabuena . . . . was not at all affected even if it later turned out that PNCC never
received the money."

It is precisely our thesis that Tabuena did not act in good faith in complying with the President's orders because of the reasons
aforesatated, summarized as follows:

(a) The President's order was "out of the ordinary" and "not based on normal procedure," which would have entailed
making an "extraordinary transaction," as admitted by petitioners themselves. This proves that they were, at the time
they received the order, aware that paying MIAA's supposed P55 million obligation to PNCC through the Office of
the President in cash was questionable.

(b) As the head of MIAA, Tabuena should have been more cautious in disbursing the funds. He did not even stop to
think about the legality of the entire process even when he did not receive any kind of receipt for the first two
deliveries of money worth P50 million. When he did get a receipt, it was not an official receipt from PNCC, the
legal creditor, but from the President's private secretary. It must also be noted that the cash was all delivered to
Gimenez' office at Aguado St., not to her office at Malacañang.

(c) Tabuena breached official channels to procure the money. There were no vouchers nor bills to authorize or
support the disbursements. There was also no certificate of availability of funds. The payment was made in cash
without COA's approval, at a time when the ceiling for cash payments was merely P5,000.00. As stated earlier, no
 official receipt from PNCC supported the payment. The entire process was "done with haste and with a total
disregard of appropriate auditing requirements."

As regards the payments to Roa-Gimenez, these were absolutely unwarranted because whatever "authority" she claimed to have
emanated, not from the creditor PNCC but from the President. Petitioners were required by law to settle their indebtedness with PNCC
directly, the party in whose favor the obligation was constituted. 22 The only instance when such questionable payment could have
been valid was if it had redounded to PNCC's benefit, which was not proved at all in this case.  23 As creditor, the PNCC was not even
bound to accept payment, if any, from the President's private secretary, the latter being a third person who had no interest whatsoever
in the discharge of MIAA's obligation. 24

The ponencia states that the Marcos Memorandum was "patently lawful for no law makes the payment of an obligation illegal."

This statement is premised on the existence of an established creditor-debtor relationship between the payor and the payee. In this,
case, however, the obligor was being made to pay to a party other than the legal obligee when no novation of the obligation has taken
place. How can such an arrangement be possibly in accord with law?

The preceding established facts clearly show that petitioners were remiss in discharging their duties as accountable officers. As
correctly observed by the court a quo:

. . .(T)he Ongpin Memorandum could not justify Pres. Marcos' memorandum of January 8, 1986; this in turn could
not justify Luis Tabuena's payment of P55 million to Fe Roa Gimenez.

. . . (T)he amount which could be payable by Tabuena in his capacity as head of the MIAA in January of 1986 could
not be in excess of P27.931 million — until other claims had been duly approved. This approval, on the other hand,
could not come from the President but from the Price Escalation Committee (PEC) before which, according to the
Ongpin Memorandum itself, these claims for escalation had been submitted for approval.

The PEC was not shown to have approved these amounts as of the time Tabuena made any of the withdrawals for
P55 million.

xxx xxx xxx

Tabuena says he had properly accounted for the P55 million he had withdrawn from the MIAA's funds. By this
Tabuena means he gave the money to Fe Roa Gimenez, presumably in representation of Pres. Ferdinand Marcos.

Neither Pres. Marcos, however, nor Fe Roa Gimenez was entitled to receive or issue acquittance for a debt in favor
of the PNCC. Tabuena's claim, therefore, that he delivered the P55 million to her is not properly accounting for P55
million.

In fact, when we come right down to it, nobody has issued an acquittance in behalf of the PNCC for the P55 million
paid by Luis Tabuena. Since Tabuena says he was paying P55 million to the PNCC, it was incumbent upon him to
show a receipt from or in behalf of the PNCC. Tabuena has shown no receipt.

Tabuena was not authorized to part with government money without receipt

When Tabuena gave P55 million intended for the PNCC to Fe Roa Gimenez or to Pres. Marcos, Tabuena was
paying government funds to persons not entitled to receive those funds. He was, therefore, guilty of malversation of
those funds.

xxx xxx xxx

Tabuena says he has accounted for the money because he has told us where the money went. But to account, in the
more proper use of the term, injects a sense of responsibility for the disposition of funds for which one is
answerable.

So when one asks if Tabuena has accounted for the P55 million belonging to the MIAA, the question really is
whether accused Tabuena disposed of the sum in a responsible manner consistent with his duty. The answer must be
in the negative.

Payments must be delivered to payees. Payments intended for the PNCC must be delivered to the PNCC or to
someone authorized by the PNCC to accept payments for it. Neither Pres. Marcos nor Fe Roa Gimenez are shown to
have been authorized to accept money for the PNCC nor to deliver money to the PNCC (or to any creditor of the
MIAA for that matter). In fact, though Pres. Marcos may have been the Supreme Magistrate of the land and the chief
enforcer of the law, the law neither authorized him to pay for the MIAA nor to accept money for the PNCC.

Accused Tabuena's statement, therefore, that he had presented overwhelming evidence of the delivery of the P55
million to Pres. Marcos' private secretary does not prove that he has accounted for that money, that is, that he has
properly disposed of that sum according to law.

On the contrary, what the evidence shows is that accused Tabuena delivered the P55 million to people who were not
entitled thereto, either as representatives of MIAA or of the PNCC.
 It proves that Tabuena had deliberately consented or permitted through negligence or abandonment, some other
person to take such public funds. Having done so, Tabuena, by his own narration, has categorically demonstrated
that he is guilty of the misappropriation or malversation of P55 million of public funds. 25

Time and again, this Court has deferred to the findings of fact of the trial court, owing to its enviable position of having seen the
physical evidence and observed the witnesses as they testified. We see no reason to depart now from this policy.

Tabuena was also personally accountable for the funds in his custody, being the head of a government agency such as MIAA and
discharging fiscal functions as such. In this regard, the Manual on Certificate of Settlement and Balances (Rev. 1993) (The Manual)
states, inter alia:

TITLE IV. ACCOUNTABILITY, RESPONSIBILITY AND LIABILITY FOR GOVERNMENT FUNDS AND
PROPERTY

Government officials and employees, in the discharge of fiscal functions, shall ensure that all government resources
are managed, expended and utilized in accordance with law, rules and regulations and safeguarded against loss or
wastage thru illegal or improper disposition.

In the implementation of the above functions, they shall be guided by the following provisions:

Sec. 26. ACCOUNTABILITY FOR GOVERNMENT FUNDS AND PROPERTY

26.1. Every officer of any government agency whose duties permit or require the possession or custody of
government funds or property shall be accountable therefor and for the safekeeping thereof in conformity with law.

26.2 Every accountable officer shall be properly bonded in accordance with law.

Sec. 27. RESPONSIBILITY FOR GOVERNMENT FUNDS AND PROPERTY

The head of any agency of the government is immediately and primarily responsible for all government funds and
property pertaining to his agency.

Persons entrusted with the possession or custody of the funds or property under the agency head shall be
immediately responsible to him without prejudice to the liability of either party to the government.

Sec. 28. SUPERVISION OVER ACCOUNTABLE OFFICERS

The head of any agency or instrumentality of the national government or any government-owned or controlled
corporation and any other self-governing board or commission of the government shall exercise the diligence of
good father of a family in supervising the accountable officers under his control to prevent the incurrence of loss of
government funds or property, otherwise he shall be jointly and severally liable with the person primarily
accountable therefor. . . .

Sec. 29. LIABILITY OF ACCOUNTABLE, SUPERIOR AND SUBORDINATE OFFICERS FOR

GOVERNMENT FUNDS

29.1 Every officer accountable for government funds shall be liable for alllosses resulting from the unlawful deposit,
use, or application thereof and for all losses attributable to negligence in the keeping of the funds.

29.2 Liability of Superior Officers. — A public officer shall not be civilly liable for acts done in the performance of
his official duties, unless there is a clear showing of bad faith, malice or gross negligence.

xxx xxx xxx

29.5 Liability of Subordinate Officers. — No subordinate officer or employee shall be civilly liable for acts done by
him in good faith in the performance of his duties. However, he shall be liable for willful or negligent acts done by
him which are contrary to law, morals, public policy and good customs even if he acted under order or instructions
of his superiors.

Sec. 30. LIABILITY FOR UNLAWFUL/ILLEGAL EXPENDITURES OR USES OF GOVERNMENT FUNDS

30.1.1 Expenditures of government funds or uses of government property in violation of law or regulations shall be
a personal liability of the official or employee found to be directly responsible therefor.

30.1.2 Every expenditure or obligation authorized or incurred in violation of law or of the annual budgetary measure
shall be void. Every payment made in violation thereof shall be illegal and every official or employee authorizing or
making such payment, or taking part therein, and every person receiving such payment shall be jointly and severally
liable for the full amount so paid or received. (Emphasis supplied)

The ponente points out that our reference to the Manual supports the view that Tabuena was only civilly liable.
This is a misappreciation of the entire sense of the dissent. It must be borne in mind that said reference was made after the conclusion
was reached that Tabuena was indeed criminally liable for his acts. It is hornbook knowledge that criminal liability carries with it the
civil, specially when, as in this case, the latter arose from the former. Hence, the statement: "Tabuena was also personally accountable
for the funds in his custody, . . . ."

Sections 29.2 and 29.5 of the Manual, which the ponente uses to illustrate his point, actually includes exceptions to the grant of
immunity from civil liability of a public officer for acts done in the performance of his official duties: (a) The preceding statement
itself says that the acts must be done "in the performance of his official duties;" (b) Sec. 29.2 exempts him from civil liability, "unless
there is a clear showing of bad faith, malice or gross negligence;" and (c) Sec. 29.5 states that "he shall be liable for willful or
negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acted under order or
instructions of his superiors." The quoted provisions have been once more underscored herein.

The ponencia futher states that "(t)here is no showing that Tabuena has anything to do whatsoever with the execution of the
MARCOS Memorandum." But very clearly, the admitted facts show that it was precisely Tabuena who implemented or executed the
said Memorandum.

The ponencia cites Acebedo where the accused was acquitted after it was shown that it was actually the latter's secretary who
collected and converted the money. Tabuena's case is starkly different, for here it was Tabuena himself who personally turned over the
money to the President's secretary. It was done with his full knowledge and consent, the obvious irregularity thereof notwithstanding.

In petitioner Peralta's case, we again yield to the factual findings of the trial court. It said:

. . . . The question is whether or not Peralta properly signed the third application for the issuance of a Manager's
Check drawn against the MIAA's savings account with the Villamor Office of the Philippine National Bank.

At the time that accused Peralta signed the request for the issuance of a Manager's Check, he was the Acting
Financial Services Manager of the MIAA and all withdrawals of funds required is (sic) co-signature.

The reason for the designation of more than one co-signatory is not merely useless ceremony; it is to serve as a
counter check for the propriety of the disbursement.

While, indeed, accused Luis Tabuena was the highest official in the MIAA and had authority to disburse its funds,
this authority was not absolute. It had to be for properly subsisting obligations and the disbursement had to be
against funds existing for that purpose. This is one reason for the need for supporting documentation before
disbursements of funds are authorized. And this is the special need for finance officers such as Adolfo Peralta, as
Financial Services Manager, to be co-signatories (sic): to ascertain the validity of the obligation and, in this
particular instance, the existence of the balance to be covered by the manager's check the application for which had
been presented for his co-signature.

In this case, Adolfo Peralta speaks of the existence of (the) P27.9 million liability in favor of the PNCC as
justification for his acts herein. True enough, for that amount was the liability as of December 31, 1985. As finance
officer, however, he could not claim ignorance of the fact that as of January 29, 1986, the date of the application for
a manager's check which he signed, two previous manager's checks worth P25 million each had already been applied
for and the total amount of P50 million had already been withdrawn . . . .

It was only two weeks after these two withdrawals when Peralta, as Finance Services Manager, participated in the
authorization for the disbursement of another P5 million. This last withdrawal brought up the total of withdrawals to
P55 million for the payment of a P27.9 million obligation.

Thus while it is true, as Adolfo Peralta claims, that there was a liability in favor of the PNCC, there was no way
Peralta could disclaim responsibility for the excessive withdrawals to the extent of P5 million thereof allegedly to
pay that liability. There was no way Peralta could justify his co-signing the application for a manager's check for P5
million on January 29, 1986.

The ponente cites a dissenting opinion of Justice Isagani A. Cruz in Development Bank of the Philippines v. Pandogar to uphold
his ponencia. Need we remind our respected colleague that the corroborative value of a dissenting opinion is minimal? Precisely, it
supports a position contrary to, and obviously unacceptable to the majority.

Petitioners were found guilty of malversation by negligence, which is possible even if the charge was for intentional malversation.
This does not negate, however, their criminal liability; it merely declares that negligence takes the place of malice. Article 3 of the
Code provides the rationale when it explicitly states that "felonies are committed not only by means of deceit but also by means of
fault."

The Sandiganbayan's finding that petitioners converted and misappropriated the P55 million cannot simply be brushed aside upon
petitioners' claim that the money was delivered in good faith to the Office of the President under the mistaken assumption that the
President was entitled to receive the same. They rely on the case of People v. Fabian, 26 which declared that "(g)ood faith in the
payment of public funds relieves a public officer from the crime of malversation." But the very same decision also cites Article 217 to
the effect that malversation may be committed by an accountable public officer by negligence if he permits any other person to take
the public funds or property in his custody. It is immaterial if petitioners actually converted or misappropriated MIAA's funds for their
own benefit, for by their very negligence, they allowed another person to appropriate the same.

The fact that no conspiracy was established between petitioners and the true embezzlers of the P55 million is likewise of no moment.
The crime of malversation, as defined under Article 217 of the Code, 27 was consummated the moment petitioners deliberately turned
over and allowed the President's private secretary to take custody of public funds intended as payment of MIAA's obligations to the
PNCC, if obligation there was at all. That petitioner Tabuena who was then General Manager of MIAA personally and knowingly
participated in the misfeasance compounds the maleficence of it all. Rank may have its privileges but certainly a blatant disregard of
law and administrative rules is not one of them. It must be etched in the minds of public officials that the underside of privileges is
responsibilities.

As accountable officers, petitioners clearly transgressed administrative and legal bounds. Even on the pretext of obeying a superior's
seemingly legitimate orders, their actuations can hardly be justified. To rule otherwise would set an alarming precedent where all
that public officials who have unlawfully enriched themselves at the people's expense and those accused of graft and corruption would
have to do to exculpate themselves from any wrongdoing would be to invoke Article 11, paragraph 6 of the Code, thus gaining instant
immunity from criminal prosecution.

Government officials, particularly heads of their agencies who, by virtue of their exalted positions exude power and authority but pay
blind obeisance to orders of those higher up in the bureaucratic hierarchy regardless of the illegality, impropriety or immorality of
such orders, would do well to internalize this prayer for national leaders delivered by former Senate President Jovito R. Salonga in
Malacanang on November 24, 1996:

xxx xxx xxx

When they begin to think of how much power they possess, help them to know the many things that are beyond their
power — the change of seasons, sun and rain, moonlight and starlight and all the wonders of Your creation;

When they are led to believe that they are exempt from public accountability, help them to know that they are
ultimately accountable to You, the God of truth and justice and mercy;

x x x           x x x          x x x

The ponencia makes the final observation that the limitations on the right of judges to ask questions during the trial were not observed
by respondent court; that the three Justices who heard the testimonies asked 37 questions of witness Francis Monera, 67 of Tabuena,
and 41 of Peralta — more than what the prosecutors and defense counsels propounded.

While such numbers unduly disturbed the ponente, it cannot be gainsaid that such action by the members of the First Division of
respondent Sandiganbayan was, under the circumstances, not only necessary and called for, but likewise legally acceptable.

In the first place, even the ponente makes the observation that petitioners did not raise this matter as error. In other words, they did not
feel prejudiced by the respondent court's actuations; nor did they construe the series of questions asked of them by the Justices as
indicative of any unfairness or partiality violative of their right to due process.

Then, too, it must be noted that there is a difference in the right of a judge in a non-jury system, like that obtaining in the Philippines,
to question witnesses or parties themselves, and that of a judge in a jury trial. The bulk of jurisprudence used in the  ponencia was
decided in the United States, where the jury system is extensively utilized in civil as well as in criminal trials. In this regard, "(i)t has
been noted that the opinion of the judge, on account of his position and the respect and confidence reposed in him and in his learning
and assumed impartiality, is likely to have great weight with the jury, and such fact of necessity requires impartial conduct on his part.
The judge is a figure of overpowering influence, whose every change in facial expression is noted, and whose every word is received
attentively and acted upon with alacrity and without question." 28

Thus, while a trial judge is expected to be circumspect in his choice of words lest they be construed as signs of partiality, he "is not,
however, required to remain silent and passive throughout a jury trial;" 29 he should, instead, "conduct a trial in an orderly way with a
view to eliciting the truth and to attaining justice between the parties." 30

Inasmuch as it is the jury which has the burden of meting out justice, it is acceptable for a judge in a jury trial to "ask any question
which would be proper for the prosecutor or defense counsel to ask so long as he does not depart from a standard of fairness and
impartiality."31 "Questions designed to clarify points and to elicit additional relevant evidence, particularly in a non-jury trial, are not
improper." 32

The numerous questions asked by the court a quo should have been scrutinized for any possible influence it may have had in arriving
at the assailed decision. The true test for the appropriateness or inappropriateness of court queries is not their quantity but their quality,
that is, whether the defendant was prejudiced by such questioning.33 To repeat, petitioners did not feel prejudiced by the trial court's
actions; otherwise, they would have raised this issue in the instant petition.

The ponencia states that he is "well aware of the fear entertained by some that this decision may set a dangerous precedent in that
those guilty of enriching themselves at the expense of the public would be able to escape criminal liability by the mere expedient of
invoking "good faith." Our position has been either misinterpreted or misread for we do not merely speak of "good faith." In fact, our
main thrust is that such a breed of people who enriched themselves at the expense of the public might handily use as an excuse or a
justifying circumstance to escape liability their having obeyed the "lawful orders" of their superior under Article 11, paragraph 6 of the
Revised Penal Code.

The ponente makes a plea towards the close of his decision, that we should not act impulsively in the instant case. "In our eagerness to
bring to justice the malefactors of the Marcos regime, we must not succumb to the temptation to commit the greatest injustice of
visiting the sins of the wrongdoers upon an innocent."

In our opinion, precisely, Tabuena and Peralta are wrongdoers, guilty of acts punishable by law. Needless to say, under our system of
laws, they must be meted out the corresponding penalty. We draw attention to the fact that nowhere in this dissent do we single out the
so-called "malefactors of the Marcos regime" alone. We addressed ourselves to all who commit venalities at the expense of the people,
as defined and punished by law but who try to justify their actions by invoking the very law which they violated.

For the reasons stated above, I vote to affirm petitioners' conviction by respondent court.

Padilla, Melo and Panganiban, JJ., concur.

PUNO, J., dissenting:

I join the Dissenting Opinion of Madam Justice Flerida Ruth Romero where I find both right and righteousness happily intersecting
each other. I am, however, constrained to write this brief dissent in view of the impact of the majority decision to our criminal justice
system which many perceive leaves much to be desired.

It should be immediately stressed that petitioners were convicted of the crime of malversation by negligence. The felony was
committed by petitioners not by means of deceit (dolo) but by fault (culpa). According to Article 3 of the Revised Penal Code, there is
fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. Justice J.B.L. Reyes explains the
difference between a felony committed by deceit and that committed by fault in this wise: ". . . In intentional crimes, the act itself is
punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous
recklessness, lack of care or foresight, the imprudencia punible."1

In light of this well-carved distinction, the long discourse of the majority decision hailing petitioners' good faith or lack of intent to
commit malversation is off-line. To justify the acquittal of petitioners, the majority should strive to show that petitioners did not
commit any imprudence, negligence, lack of foresight or lack of skill in obeying the order of former President Marcos. This is nothing
less than a mission impossible for the totality of the evidence proves the utter carelessness of petitioners in the discharge of their duty
as public officials. The evidence and their interstices are adequately examined in the dissent of Madame Justice Romero and they need
not be belabored.

For the same reason, the majority cannot rely on the doctrine of mistake of fact as ground to acquit petitioners. It found as a fact that ".
. . Tabuena acted under the honest belief that the P55 million was a due and demandable debt. . . ." This Court has never applied the
doctrine of mistake of fact when negligence can be imputed to the accused. In the old, familiar case of People vs. Ah Chong,2 Mr.
Justice Carson explained that ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a particular
intent which under the law is a necessary ingredient of the offense charge (e.g., in larceny animus furendi, in murder, malice, etc.),
cancels the presumption of intent and works an acquittal, except in those cases where the circumstances demand conviction under the
penal provisions touching criminal negligence. Hence, Ah Chong was acquitted when he mistook his houseboy as a robber and the
evidence showed that his mistake of fact was not due to negligence. In the case at bar, the negligence of the petitioners screams from
page to page of the records of the case. Petitioners themselves admitted that the payments they made were "out of the ordinary" and
"not based on normal procedure."

As aforestated, the cornerstone of the majority decision is its finding of good faith on the part of the petitioners. Viewed from a more
critical lens, however, the evidence cannot justify a finding of good faith. The violations of auditing rules are too many yet the
majority merely winks at them by ruling that petitioner Tabuena ". . . did not have the luxury of time to observe all auditing
procedures of disbursement considering the fact that the Marcos Memorandum enjoined 'immediate compliance' with the directive that
he forward to the President's Office the P55 million in cash." With due respect, I am disquieted by the mischiefs that will be mothered
by this ruling. To begin with, the country was no longer under martial rule in 1986 and petitioners were under no compulsion to
violate our laws. It also ought to be obvious that the order for immediate compliance even if made by the former President cannot be
interpreted as a green signal by a subordinate official to disregard our laws. Indeed, no person, not even the President can order the
violation of our laws under any excuse whatsoever. The first and foremost duty of the President is to uphold the sanctity of our laws.
Thus, the Constitution requires the President to take an oath or affirmation where he makes the solemn pledge to the people: "I do
solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President of the Philippines, preserve and
defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation. . . . 3 To be sure,
the need for petitioners to make an immediate payment is really not that immediate. The facts show that former President Marcos first
called petitioner Tabuena by telephone and asked him to make the payment. One week after or on January 8, 1986, the former
President issued a written memorandum reiterating the order to pay. Payments were made in three tranches — the first on January 10,
1986, the second on January 16, 1986 and the third on January 31, 1986. Clearly then, it took petitioner one month to comply with the
Order. Given the personnel of petitioner Tabuena in his office, one month provides enough time to comply with the rules. In any
event, petitioners did not request former President Marcos for additional time to comply with the rules if they felt in good faith that
they needed more time. Petitioners short-circuited the rules by themselves. Nothing in the Marcos Memorandum compelled them to
disregard the rules. The Memorandum merely stated "Your immediate compliance is appreciated". The language of the Memorandum
was as polite as it could be. I fail to discern any duress in the request as the majority did.

II

The determination of the degree of participation that should be allowed to a judge in the questioning of a witness is a slippery slope in
constitutional law. To a certain extent, I agree with the majority that some of the questions propounded by the justices of the
respondent Court crossed the limits of propriety. Be that as it may, I am not prepared to conclude with certainty that the text and tone
of the questions denied petitioners the right to an impartial trial. Bias is a state of mind which easily eludes evidence. On the basis of
the evidence before us, we cannot hold that we have plumbed the depth of prejudice of the justices and have unearthed their partiality.
The more telling evidence against the petitioners are documentary in nature. They are not derived from the answers elicited by
questions from the justices which the majority, sua sponte, examined and condemned as improper.
 III

Finally, I can not but view with concern the probability that the majority decision will chill complaints againsts graft pending before
the respondent Court. From the majority decision, it is crystalline that petitioners blindly obeyed the Marcos Memorandum despite its
fatal and facial flaws. The majority even quotes these inculpatory admissions of petitioner Tabuena, viz:4

xxx xxx xxx

AJ del Rosario

xxx xxx xxx

Q If it was for the payment of such obligation why was there no voucher to cover such payment?
In other words, why was the delivery of the money not covered by any voucher?

A The instruction to me was to give it to the Office of the President, your Honor.

PJ Garchitorena

Q Be that as it may, why was there no voucher to cover this particular disbursement?

A I was just told to bring it to the Office of the President, your Honor.

AJ del Rosario

Q Was that normal procedure for you to pay in cash to the Office of the President for obligations
of the MIAA in payment of its obligation to another entity?

A No, your Honor, I was just following the Order to me of the President.

PJ Garchitorena

Q So the Order was out of the ordinary?

A Yes, your Honor.

AJ del Rosario

Q Did you file any written protest with the manner with which such payment was being ordered?

A No, your Honor.

Q Why not?

A Because with that instruction of the President to me, I followed your Honor.

xxx xxx xxx

AJ Hermosisima

Q Why were you not made to pay directly to the PNCC considering that you are the manager of
MIA at that time and the PNCC is a separate corporation, not an adjunct of Malacanang?

A I was just basing it from the Order of the Malacanang to pay PNCC through the Office of the
President, your Honor.

xxx xxx xxx

Q You agreed to the order of the President notwithstanding the fact that this was not the regular
course or Malacanang was not the creditor?

A I saw nothing wrong with that because that is coming from the President, your Honor.

In effect, petitioners' shocking submission is that the President is always right, a frightening echo of the antedeluvian idea
that the King can do no wrong. By allowing the petitioners to walk, the majority has validated petitioners' belief that the
President should always be obeyed as if the President is above and beyond the law. I cannot accept this dangerous ruling even
if I look at it through the eyes of faith. One of the gospels in constitutional law is that the President is powerful but is not
more paramount than the law. And in criminal law, our catechism teaches us that it is loyalty to the law that saves, not loyalty
to any man. Let us not bid goodbye to these sacrosanct principles.
Padilla, Melo and Panganiban, JJ., concur.

PANGANIBAN, J., dissenting:

In the main, the majority ruled that Petitioners Luis Tabuena and Adolfo Peralta should be acquitted because they were merely
obeying the order of then President Ferdinand E. Marcos to deliver "thru this Office, the sum of FIFTY FIVE MILLION
(P55,000,000.00) PESOS in cash as partial payment of MIAA's account" with the Philippine National Construction Company. In their
Dissenting Opinions, Justices Romero, Davide and Puno have shown how weak and unpersuasive this ruling is under applicable
Philippine laws and jurisprudence. I will not repeat their illuminative discussions. Let me just stress three more points:

(1) The defense of "obedience to a superior's order" is already obsolete. Fifty years ago, the Nazi war criminals tried to justify
genocide against the Jews and their other crimes against humanity by alleging they were merely following the orders of Adolf Hitler,
their adored fuehrer. However, the International Military Tribunal at Nuremberg in its Judgment dated October 1, 1946, 1 forcefully
debunked this Nazi argument and clearly ruled that "(t)he true test . . . is not the existence of the order but whether moral choice was
in fact possible."

In 1947, the United Nations General Assembly adopted a Resolution firmly entrenching the principle of moral choice, inter alia, as
follows:2

The fact that a person acted pursuant to an order of his government or of a superior does not relieve him from
responsibility under international law, provided a moral choice was in fact possible to him.

In the Nuremberg trials, the defendants were military officers of the Third Reich who were duty-bound to obey direct orders on pain of
court martial and death at a time when their country was at war. Nonetheless, they were meted out death sentences by hanging or
long-term imprisonments. In the present case, the accused are civilian officials purportedly complying with a memorandum of the
Chief Executive when martial law had already been lifted and the nation was in fact just about to vote in the "snap" presidential
election in 1986. The Sandiganbayan did not impose death but only imprisonment ranging from seventeen years and one day to twenty
years. Certainly a moral choice was not only possible. It was in fact available to the accused. They could have opted to defy the illegal
order, with no risk of court martial or death. Or they could have resigned. They knew or should have known that the P55 million was
to be paid for a debt that was dubious 3 and in a manner that was irregular. That the money was to be remitted in cold cash and
delivered to the private secretary of the President, and not by the normal crossed check to the alleged creditor, gave them a moral
choice to refuse. That they opted to cooperate compounded their guilt to a blatant conspiracy to defraud the public treasury.

(2) Resurrecting this internationally discredited Nazi defense will, I respectfully submit, set a dangerous precedent in this
country. Allowing the petitioners to walk deprives this Court of the moral authority to convict any subaltern of the martial law
dictator who was merely "following orders." This ludicrous defense can be invoked in all criminal cases pending not only before this
Court but more so before inferior courts, which will have no legal option but to follow this Court's doctrine. 4

(3) Mercy and compassion are virtues which are cherished in every civilized society. But before they can be invoked, there must first
be justice. The Supreme Court's duty is to render justice. The power to dispense pardon lies elsewhere. Verily, the Constitution
ordains a final conviction by the courts before the President can exercise his power to wipe away penalty. 5 Such is the legal and
natural precedence and order of things: justice first before mercy. And only he who sincerely repents his sin, restitutes for it, and
reforms his life deserves forgiveness and mercy.

I therefore vote to AFFIRM the assailed Sandiganbayan Decision onvicting the petitioners of malversation.

Padilla, Melo and Panganiban, JJ., concur.

Separate Opinions

DAVIDE, JR., J., dissenting:

Last 20 September 1996 in Regala v. Sandiganbayan,1 this Court erected a barrier to the constitutionally mandated task to recover ill-
gotten wealth and in the punishment of those who dirtied their hands with it. This the Court did by impliedly granting immunity from
civil suit or liability under an expanded interpretation of the lawyer-client privilege, lawyers who were alleged to have acted as co-
conspirators or dummies of certain parties in the acquisition of such wealth.

The acquittal decreed by the majority in the cases under consideration places another obstacle to such recovery and punishment by
granting immunity from any criminal liability those who were ordered by then President Marcos to disburse government funds for
alleged payment of obligations. This is the immediate impression anyone can get from the following sweeping pronouncement in
the ponencia.2

In the case at bench, the order emanated from the office of the President and bears the signature of the President
himself, the highest official of the land. It carries with it the presumption that it was regularly issued. And on its
face, the memorandum is patently lawful for no law makes the payment of an obligation illegal. This fact, coupled
with the urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis essentia. . .
.

What this suggests is that no one could disobey then President Marcos, a suggestion made more eloquent with the quotation
of the dissenting opinion of Mr. Justice Cruz in Development Bank of the Philippines v. Pundogar.3 That dissent cannot be
 used to justify the petitioners' "obedience," otherwise, this Court would thus overturn the majority opinion in the said case
and adopt the dissent as the new rule.

Henceforth, all those similarly situated as the appellants or those who could simply provide any reason for their  compelled obedience
to Mr. Marcos can go scot-free. The meaning of EDSA and its message for history would thus be obliterated. The acquittal then
perpetuates a sad day for this Court — a day of mourning for those who fought against the dictatorship and of triumph and joy for the
dictator's collaborators, nominees, associates, and friends.

I cannot join the majority in these cases.

My analysis of the ponencia indicates that the acquittal is based on the following:

1. The accused-appellants merely acted in obedience to an order by a superior for some lawful
purpose; hence, they incur no criminal liability pursuant to Article 11(6) of the Revised Penal
Code.

2. Even granting that the order was not for a lawful purpose, they acted in good faith.

3. Their basic constitutional right to due process was violated by the way the Sandiganbayan
actively took part in the questioning of a defense witness and of the accused themselves.

I shall first take up the third.

The ponencia admits that the appellants did not raise as an issue the Sandiganbayan's violation of their right to due process;
nevertheless, it ruled that such failure is not an impediment to the consideration of the violation "as additional basis for a reversal since
the settled doctrine is that an appeal throws the whole case open to review, and it becomes the duty of the appellate court to correct
such errors as may be found in the judgment appealed from whether they are made the subject of assignments of error or not. 4

I beg to disagree.

First, there is no showing at all that the extensive participation by the Justices of the Sandiganbayan in questioning the appellants and
their witness indicated prejudgment of guilt, bias, hatred, or hostility against the said appellants. On the contrary, the quoted portions
of the questions propounded by the Justices manifest nothing but a sincere desire to ferret out the facts to arrive at the truth which are
crucial in the determination of the innocence or guilt of the appellants. These Justices, as trial magistrates, have only exercised one of
the inherent rights of a judge in the exercise of judicial function. What this Court stated eighty-three years ago in United States
v. Hudieres5 needs repeating:

It is very clear, however, from a review of the whole proceedings that the only object of the trial judge in
propounding these questions was to endeavor as far as possible to get at the truth as to the facts to which the
witnesses were testifying. The right of a trial judge to question the witnesses with a view to satisfying his mind upon
any material point which presents itself during the trial of a case over which he presides is too well established to
need discussion. The trial judges in this jurisdiction are judges of both the law and the facts, and they would be
negligent in the performance of their duties if they permitted a miscarriage of justice as a result of a failure to
propound a proper question to a witness which might develop some material fact upon which the judgment of the
case should turn. So in a case where a trial judge sees that the degree of credit which he is to give the testimony of a
given witness may have an important bearing upon the outcome, there can be no question that in the exercise of a
sound discretion he may put such questions to the witness as will enable him to formulate a sound opinion as to the
ability or willingness of the witness to tell the truth. The questions asked by the trial judge in the case at bar were in
our opinion entirely proper, their only purpose being to clarify certain obscure phases of the case; and while we are
inclined to agree with counsel that some of the observations of the trial judge in the course of his examination might
well have been omitted, there is no reason whatever to believe that the substantial rights of the defendants were in
anywise prejudiced thereby.

That the appellants themselves did not find any impropriety in the conduct of the Justices, or that if they did they find nothing therein
to prejudice their right to due process is best proven by their failure to assign it as error.

Second, even granting arguendo that the conduct of the Justices constituted such a violation, the appellants are forever estopped from
raising that issue on ground of waiver. This Court would risk an accusation of undue partiality for the appellants were it to give them
premium for their torpor and then reward them with an acquittal. Such waiver is conclusively proven in these cases. From the quoted
portions of the testimonies of the witnesses for the appellants, it is clear that their counsel did not object to, or manifest on record his
misgivings on, the active participation of the Justices in the examination (or cross-examination) of the witnesses. Nothing could have
prevented the counsel for the appellants from doing so. Then, too, as correctly pointed out in the ponencia, they made no assignment
of error on the matter.

In our jurisdiction, rights may be waived unless the waiver is contrary to law, public order, public policy, morals, or good customs, or
is prejudicial to a third person with a right recognized by law.6

In People v. Donato,7 this Court made the following statement on what rights may be waived:

As to what rights and privileges may be waived, the authority is settled:

 . . . the doctrine of waiver extends to rights and privileges of any character, and, since the word
"waiver" covers every conceivable right, it is the general rule that a person may waive any matter
which affects his property, and any alienable right or privilege of which he is the owner or which
belongs to him or to which he is legally entitled, whether secured by contract, conferred with
statute, or guaranteed by constitution, provided such rights and privileges rest in the individual,
are intended for his sole benefit, do not infringe on the rights of others, and further provided the
waiver of the right or privilege is not forbidden by law, and does not contravene public policy; and
the principle is recognized that everyone has a right to waive, and agree to waive, the advantage of
a law or rule made solely for the benefit and protection of the individual in his private capacity, if
it can be dispensed with and relinquished without infringing on any public right, and without
detriment to the community at large. . . .

Although the general rule is that any right or privilege conferred by statute or guaranteed by
constitution may be waived, a waiver in derogation of a statutory right is not favored, and a waiver
will be inoperative and void if it infringes on the rights of others, or would be against public policy
or morals and the public interest may be waived.

While it has been stated generally that all personal rights conferred by statute and guaranteed by
constitution may be waived, it has also been said that constitutional provisions intended to protect
property may be waived, and even some of the constitutional rights created to secure personal
liberty are subjects of waiver.8

In Commonwealth vs. Petrillo,9 it was held:

Rights guaranteed to one accused of a crime fall naturally into two classes: (a) those in which the
state, as well as the accused, is interested; and (b) those which are personal to the accused, which
are in the nature of personal privileges. Those of the first class cannot be waived; those of the
second may be.

It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action which would
be invalid if taken against his will. 10

This Court has recognized waivers of constitutional rights such as, for example, the right against unreasonable
searches and seizures; 11 the right to counsel and to remain silent; 12 and the right to be heard. 13

Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights. Section 12(1) of
Article III thereof on the right to remain silent and to have a competent and independent counsel, preferably of his
own choice states:

. . . These rights cannot be waived except in writing and in the presence of counsel.

This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests that the
other rights may be waived in some other form or manner provided such waiver will not offend Article 6 of the Civil
Code.

We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a right which is
personal to the accused and whose waiver would not be contrary to law, public order, public policy, morals, or good
customs, or prejudicial to a third person with a right recognized by law.

In the cases below, the perceived violation, if at all it existed, was not of the absolute totality of due process, but more appropriately of
the right to an impartial trial, which is but an aspect of the guarantee of due process. 14 I submit that the right to an impartial trial is
waivable.

II

I also disagree with the view of the majority that all the requisites of the sixth justifying circumstance in Article 11 of the Revised
Penal Code are present. I submit that the 8 January 1986 Memorandum of President Marcos can by no means be considered a "lawful"
order to pay P55 million to the PNCC as alleged partial payment of the MIAA's account to the former. The alleged basis of such
Memorandum is the 7 January 1985 Memorandum of Trade and Industry Minister Roberto Ongpin, which even confirms the absence
of any factual basis for the order of payment of P55 million:

In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly CDCP,
has accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusive of
accomplishments for the aforecited contracts. In accordance with contract provisions, outstanding advances totalling
P93.9 million are to be deducted from said billings which will leave a net amount due to PNCC of only P4.5 million,
thus:

At the same time, PNCC has potential escalation claims amounting to P99 million in the following states of
approved/evaluation:

— Approved by Price Escalation Committee

(PEC) but pending for lack of funds P 1.9 million
 — Endorsed by project consultants and
currently being evaluated by PEC 30.7 million

— Submitted by PNCC directly to PEC

and currently under evaluation 66.5 million
—————
T o t a l P99.1 million

There has been no funding allocation for any of the above escalation claims due to budgetary constraints.

The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due to PNCC
have not been paid, resulting in undue burden to PNCC due to additional cost of money to service its obligations for
this contract.

To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we
request for His Excellency's approval for a deferment of the repayment of PNCC's advances to the extent of P30
million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has been
officially recognized by MIADP consultants but could not be paid due to lack of fundings.

Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This
amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the
repayment of advances of P63.9 million.

If Ongpin's memorandum is given full faith, it is clear that PNCC's "accomplishment billings" for work accomplished, including
accomplishments on the "supplemental contracts" (whose authority therefor was just sought for), aggregated to P98.4 million. Since
there were advances given to PNCC in the total amount of P93.9 million, the net amount due the PNCC was only P4.5 million.

However, in view of the approval by then President Marcos of Ongpin's request "for a deferment of the repayment of PNCC's
advances to the extent of P30 million," only P63.9 million of PNCC's advances was to be deducted from the accomplishment billings
of P98.4 million. The net amount due thus became P34.5 million. Hence, as pointed out by the Sandiganbayan, if any payments were
due under Ongpin's Memorandum they would only be for that amount (P34.5 million). The Order of then President Marcos to
withdraw has, therefore, exceeded by P20.5 million. Clearly, the order of payment of P55 million had no factual and legal basis and
was therefore unlawful.

III

Not an iota of good faith was shown in the conduct of the appellants.

Being responsible accountable officers of the MIAA, they were presumed to know that, in light of "the undeferred portion of the
repayment" of PNCC's advances in the amount of P63.9 million, the MIAA's unpaid balance was only P34.5 million. They also ought
to know the procedure to be followed in the payment of contractual obligations. First and foremost there were the submission by the
PNCC of its claims with the required supporting documents and the approval of the claims by the appropriate approving authority of
MIAA. When then President Marcos ordered immediate payment, he should not have been understood as to order suspension of the
accepted budgeting, accounting, and auditing rules on the matter. Parenthetically, it may be stated here that although President Marcos
was a dictator, he was reported to be, and even projected himself as, a "faithful" advocate of the rule of law. As a matter of fact, he did
not hesitate to issue a decree, letter of instruction, or any presidential issuance in anticipation of any planned actions or activities to
give the latter the facade or semblance of legality, wisdom, or propriety. When he made the order to appellant Tabuena, President
Marcos must only be understood to order expeditious compliance with the requirements to facilitate immediate release of the money.
There was no way for Tabuena to entertain any fear that disobedience to the order because of its unlawfulness or delay in the
execution of the order due to compliance with the requirements would cause his head or life. He offered no credible evidence for such
fear. This Court should not provide one for him. That Tabuena served Mr. Marcos until the end of the latter's regime and even beyond
only proved a loyalty not based on fear but on other considerations.

Moreover, the manner the appellant effected the withdrawal was most unusual, irregular, and anomalous. He has not shown any
evidence that what he did was the usual practice in his office.

What happened in this case showed the appellants' complicity as principals by direct participation in the malversation of the MIAA's
funds. The appellants should, therefore, be thankful to the Sandiganbayan for holding them liable therefor only through negligence.

I vote then to AFFIRM in toto the assailed decision.

Padilla, Melo and Panganiban, JJ., concur.

ROMERO, J., dissenting:

Obedience, rightly directed, is a virtue well-worth cultivating — obedience of children to their elders; obedience to lawful authority by
citizens; obedience to the behests of what is highest and finest in one's self.

Misguided, such as indiscriminate obeisance to questionable mandates, no matter if emanating from authoritative figures whose
slightest whisper and scribbled orders are law, this can lead man to perdition.
In government, a pliant bureaucracy that is disinclined to resist unethical, immoral, even downright illegal directives from "above" is
easily corrupted and can only bring disrepute to the entire system. In this context, can subordinate public officials like herein petitioner
escape criminal prosecution by the simple expedient of claiming that they were merely following orders from a superior? This
disquisition will demonstrate that certain requisites are indispensable before anyone can claim immunity from penal sanctions for
seemingly justifiable acts.

This dissenting opinion will narrate the facts for the sake of accuracy for the ponencia seems to have overlooked or glossed over vital
circumstances which make the conclusion embodied herein irresistible.

Petitioners were charged with violation of Article 217 of the Revised Penal Code (the Code) for alleged malversation of a total of P55
million from the public funds of the Manila International Airport Authority (MIAA). The informations filed on three separate dates in
1986 accused them, as accountable officers, of intentionally withdrawing said amount for the ostensible purpose of paying a non-
existent obligation of MIAA to the Philippine National Construction Corporation (PNCC), but which they misappropriated and
converted for their personal use and benefit.

In their defense, petitioners claimed they acted in good faith and in compliance with a verbal and later, a written order from no less
than former President Ferdinand E. Marcos. In a Presidential Memorandum (the Marcos Memorandum) dated January 8, 1986, the
latter allegedly commanded petitioner Tabuena, in his capacity as General Manager of MIAA, "to pay immediately the Philippine
National Construction Corporation, thru this Office (Office of the President), the sum of FIFTY FIVE MILLION (P55,000,000.00)
PESOS in cash as partial payment of MIAA's account with said Company mentioned in a Memorandum of (Trade and Industry)
Minister Roberto Ongpin to this Office dated January 7, 1985 . . . ." 1 (The Ongpin Memorandum). On the assumption that MIAA
indeed had a due and demandable debt to PNCC for work done on the airport, Tabuena, with the help of Gerardo G. Dabao and
Adolfo M. Peralta, MIAA Assistant General Manager and Financial Services Department Acting Manager, respectively, made three
withdrawals from the account of MIAA with the Philippine National Bank first, on January 10, 1986 for P25 million, then on January
16, 1986 for another P25 million and lastly, on January 31, 1986 for P5 million. The three manager's checks covering the withdrawals
were all applied for and issued in the name of Tabuena. Curiously, while the checks were issued by the MIA extension office of PNB,
they were encashed at the Villamor Air Base branch. Each time the cash was delivered directly to the office of Marcos' private
secretary, Fe Roa-Gimenez. The latter issued a receipt 2 signed by her but only after the last delivery. No PNCC receipt was ever given
to petitioners.

On October 22, 1990, the Sandiganbayan's First Division rendered a decision finding petitioners guilty.

Petitioners raise two issues, namely, that they were charged with intentional malversation (which they labelled as malversation by
direct appropriation) but were convicted of malversation by negligence, and that they acted in good faith.

As regards the first argument, the variance between the crime charged and that proved by the prosecution is immaterial, as stated by
the ponente.

As regards the second issue, it is argued that good faith is a valid defense in malversation for it negates criminal intent. Petitioners
claim that when they committed the acts complained of, they were merely following then President Marcos' oral and written
directives. They rely on Article 11, paragraph 6 of the Code which states, inter alia:

Art. 11. Justifying circumstances. — The following do not incur any criminal liability:

xxx xxx xxx

6. Any person who acts in obedience to an order issued by a superior for some lawful purpose.

For an act to be justified under the abovequoted provision, therefore, three requisites must concur: (a) an order must have been issued
by a superior; (b) the order must be for a lawful purpose; and (c) the means used by the subordinate in carrying out such order must
itself be lawful.3

In the case at bar, Tabuena was allegedly ordered by President Marcos to pay the PNCC from MIAA's fund, thus ostensibly meeting
the first requirement but not the others. For there is a qualification which significantly changes the picture. The payment was to be in
cash and immediately made through the Office of the President. It is to be pointed out that it is one thing to be ordered to pay a due
and demandable obligation; it is another to make such payment to someone other than the lawful obligee and worse, when the
subordinate is forced to breach official channels to comply with the order.

It must be stressed that Tabuena and his co-accused, Peralta and Dabao, disregarded standard operating procedures in following the
President's order. As observed by the Sandiganbayan, "there were no vouchers to authorize the disbursements in question. There were
no bills to support the disbursement. There were no certifications as to the availability of funds for an unquestionably staggering sum
of P55 Million." Disbursement vouchers are specifically required under Sec. 4 (5) of Presidential Decree No. 1445 (P.D. No. 1445),
while the certificate of availability of funds is needed to comply with Sec. 47, Title I-B, Bk. V of the Administrative Code of
19874 and Sec. 344 of the Local Government Code of 1991. 5 To compound the duplicity, the checks, issued by one branch of PNB
were encashed in another — all made in cash instead of by crossed check payable to PNCC! Conspicuously, such cash outlay was
made without prior approval or authority of the Commission on Audit. 6 Finally, the last two payments were made despite the non-
issuance of a receipt for the first. In fact, the receipt given after the delivery of the last installment was not even issued by the PNCC,
the legal obligee and avowed recipient of the money. Instead it emanated from the office of Roa-Gimenez, a complete stranger to the
alleged contract between MIAA and PNCC, who did not even indicate in what capacity she signed it. To compound the mystery, the
money was even delivered to her office, not in Malacañang, but at nearby Aguado Street. The entire process, done with haste and with
a total disregard of appropriate auditing requirements was, in the words of petitioners themselves, an extraordinary
transaction," 7 admittedly "out of the ordinary" and "not based on normal procedure."8
Disbursement of government funds, especially one as gargantuan as the one made by petitioners, is a complex process, unlike the
basic over-the-counter transaction that they purportedly made it to appear. Far from being lawful, the payment of the alleged
obligation of MIAA to PNCC through the Office of the President may at best be labelled as irregular. "The term 'irregular expenditure'
signifies an expenditure incurred without adhering to established rules, regulations, procedural guidelines, policies, principles or
practices that have gained recognition in law. Irregular expenditures are incurred without conforming with prescribed usages and rules
of discipline. There is no observance of an established pattern, course, mode of action, behavior, or conduct in the incurrence of an
irregular expenditure. . . . ."9

Specifically, disbursement of public funds must conform with the following principles:

(1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. 10

(2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use,
benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest,
preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or
dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. 11

(3) All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for
such purpose only. If the purpose for which this special fund was created has been fulfilled or abandoned, the
balance, if any, shall be transferred to the general funds of the Government. 12

(4) All resources of the government shall be managed, expended or utilized in accordance with law and regulations
and safeguarded against loss or wastage through illegal or improper disposition to ensure efficiency, economy and
effectiveness in the operations of government. The responsibility to take care such policy is faithfully adhered to
rests directly with the chief or head of the government agency concerned. 13

(5) Disbursement or disposition of government funds or property shall invariably bear the approval of the proper
officials. 14

(6) Claims against government funds shall be supported with complete documentation. 15

(7) All laws and regulations applicable to financial transactions shall be faithfully adhered to. 16

(8) Generally accepted principles and practices of accounting as well as of sound management and fiscal
administration shall be observed, provided that they do not contravene existing laws and regulations. 17

Assuming arguendo that petitioners acted in good faith in following the President's order, undeniably, they were negligent as found by
the trial court. The instructions in the President's order should have sufficed to put any accountable head of an office, Tabuena
included, on guard. Why was he being required to pay MIAA's obligation to the PNCC, if indeed there were any, and not directly to
the latter but through the Office of the President? Why was the entire transaction not coursed through proper channels, viz., the
accounting office? Why was such a huge disbursement to be made in cash, instead of by crossed check, which is not only safer, faster,
and more convenient, but in accord with auditing requirements?

Obedience to a superior's order does not connote blind obedience. Being the general manager of such a mammoth organization like the
MIAA, he should, at the very least, have exercised ordinary prudence by verifying with the proper official under him whether the
agency had indeed an outstanding indebtedness to the PNCC before ordering any payment to be made through official channels. Such
routine measures were cavalierly disregarded. The whole process seemed no different from a petty, personal transaction.

As evidence later revealed, PNCC's receivables from MIAA amounted to P102,475,392.35, the bulk of which comprised escalation
charges. From that time until Corazon C. Aquino assumed the Presidency, a total of P44.4 million was paid, but only P2 million of this
in cash; the rest was set off or compensated against other debts, or assigned to other creditors. The financial records did not show that
PNCC received any sums of money from MIAA during the period January to June, 1986 when the block payments were being made
in quarter millions. Only on September 25, 1986, long after President Marcos had gone, was an assignment of P23 million actually
made by MIAA in favor of PNCC. 18

Even the Ongpin Memorandum, which is the basis of the Marcos Memorandum, failed to show where the amount of P55 million
cropped up. The former contained, inter alia, the following matters: (a) it requested the President's approval of Minister Ongpin's
recommendations "for eight (8) supplemental contracts pertaining to the MIA Development Project (MIADP) between the Bureau of
Air Transport (BAT) and Philippine National Construction Corporation (PNCC), formerly CDCP, . . . ."; 19 (b) it informed the
President that PNCC had collectibles from MIAA only in the amount of P4.5 million, which is the difference between the
accomplishment billings on the MIADP totalling P98.4 million and PNCC's advances of P93.9 million; and (c) it informed the
President that PNCC had potential escalation claims against MIAA in the amount of P99 million, "potential" because they have yet to
be approved by the Price Escalation Committee (PEC).

The only remaining piece of evidence which would show that MIAA owed PNCC anything as of the date of the Marcos Memorandum
is MIAA's balance sheet, 20 which indicates its liability to PNCC as of December 31, 1985 to be P27,931,000.00. 21 How can
petitioners claim to have acted in good faith when they withdrew the P55 million from MIAA's funds knowing fully well that the
amount due PNCC was only a little over half that amount, as shown by their own evidence?

The ponencia states that ". . . . the good faith of Tabuena . . . . was not at all affected even if it later turned out that PNCC never
received the money."
It is precisely our thesis that Tabuena did not act in good faith in complying with the President's orders because of the reasons
aforesatated, summarized as follows:

(a) The President's order was "out of the ordinary" and "not based on normal procedure," which would have entailed
making an "extraordinary transaction," as admitted by petitioners themselves. This proves that they were, at the time
they received the order, aware that paying MIAA's supposed P55 million obligation to PNCC through the Office of
the President in cash was questionable.

(b) As the head of MIAA, Tabuena should have been more cautious in disbursing the funds. He did not even stop to
think about the legality of the entire process even when he did not receive any kind of receipt for the first two
deliveries of money worth P50 million. When he did get a receipt, it was not an official receipt from PNCC, the
legal creditor, but from the President's private secretary. It must also be noted that the cash was all delivered to
Gimenez' office at Aguado St., not to her office at Malacañang.

(c) Tabuena breached official channels to procure the money. There were no vouchers nor bills to authorize or
support the disbursements. There was also no certificate of availability of funds. The payment was made in cash
without COA's approval, at a time when the ceiling for cash payments was merely P5,000.00. As stated earlier, no
official receipt from PNCC supported the payment. The entire process was "done with haste and with a total
disregard of appropriate auditing requirements."

As regards the payments to Roa-Gimenez, these were absolutely unwarranted because whatever "authority" she claimed to have
emanated, not from the creditor PNCC but from the President. Petitioners were required by law to settle their indebtedness with PNCC
directly, the party in whose favor the obligation was constituted. 22 The only instance when such questionable payment could have
been valid was if it had redounded to PNCC's benefit, which was not proved at all in this case.  23 As creditor, the PNCC was not even
bound to accept payment, if any, from the President's private secretary, the latter being a third person who had no interest whatsoever
in the discharge of MIAA's obligation. 24

The ponencia states that the Marcos Memorandum was "patently lawful for no law makes the payment of an obligation illegal."

This statement is premised on the existence of an established creditor-debtor relationship between the payor and the payee. In this,
case, however, the obligor was being made to pay to a party other than the legal obligee when no novation of the obligation has taken
place. How can such an arrangement be possibly in accord with law?

The preceding established facts clearly show that petitioners were remiss in discharging their duties as accountable officers. As
correctly observed by the court a quo:

. . .(T)he Ongpin Memorandum could not justify Pres. Marcos' memorandum of January 8, 1986; this in turn could
not justify Luis Tabuena's payment of P55 million to Fe Roa Gimenez.

. . . (T)he amount which could be payable by Tabuena in his capacity as head of the MIAA in January of 1986 could
not be in excess of P27.931 million — until other claims had been duly approved. This approval, on the other hand,
could not come from the President but from the Price Escalation Committee (PEC) before which, according to the
Ongpin Memorandum itself, these claims for escalation had been submitted for approval.

The PEC was not shown to have approved these amounts as of the time Tabuena made any of the withdrawals for
P55 million.

xxx xxx xxx

Tabuena says he had properly accounted for the P55 million he had withdrawn from the MIAA's funds. By this
Tabuena means he gave the money to Fe Roa Gimenez, presumably in representation of Pres. Ferdinand Marcos.

Neither Pres. Marcos, however, nor Fe Roa Gimenez was entitled to receive or issue acquittance for a debt in favor
of the PNCC. Tabuena's claim, therefore, that he delivered the P55 million to her is not properly accounting for P55
million.

In fact, when we come right down to it, nobody has issued an acquittance in behalf of the PNCC for the P55 million
paid by Luis Tabuena. Since Tabuena says he was paying P55 million to the PNCC, it was incumbent upon him to
show a receipt from or in behalf of the PNCC. Tabuena has shown no receipt.

Tabuena was not authorized to part with government money without receipt

When Tabuena gave P55 million intended for the PNCC to Fe Roa Gimenez or to Pres. Marcos, Tabuena was
paying government funds to persons not entitled to receive those funds. He was, therefore, guilty of malversation of
those funds.

xxx xxx xxx

Tabuena says he has accounted for the money because he has told us where the money went. But to account, in the
more proper use of the term, injects a sense of responsibility for the disposition of funds for which one is
answerable.
 So when one asks if Tabuena has accounted for the P55 million belonging to the MIAA, the question really is
whether accused Tabuena disposed of the sum in a responsible manner consistent with his duty. The answer must be
in the negative.

Payments must be delivered to payees. Payments intended for the PNCC must be delivered to the PNCC or to
someone authorized by the PNCC to accept payments for it. Neither Pres. Marcos nor Fe Roa Gimenez are shown to
have been authorized to accept money for the PNCC nor to deliver money to the PNCC (or to any creditor of the
MIAA for that matter). In fact, though Pres. Marcos may have been the Supreme Magistrate of the land and the chief
enforcer of the law, the law neither authorized him to pay for the MIAA nor to accept money for the PNCC.

Accused Tabuena's statement, therefore, that he had presented overwhelming evidence of the delivery of the P55
million to Pres. Marcos' private secretary does not prove that he has accounted for that money, that is, that he has
properly disposed of that sum according to law.

On the contrary, what the evidence shows is that accused Tabuena delivered the P55 million to people who were not
entitled thereto, either as representatives of MIAA or of the PNCC.

It proves that Tabuena had deliberately consented or permitted through negligence or abandonment, some other
person to take such public funds. Having done so, Tabuena, by his own narration, has categorically demonstrated
that he is guilty of the misappropriation or malversation of P55 million of public funds. 25

Time and again, this Court has deferred to the findings of fact of the trial court, owing to its enviable position of having seen the
physical evidence and observed the witnesses as they testified. We see no reason to depart now from this policy.

Tabuena was also personally accountable for the funds in his custody, being the head of a government agency such as MIAA and
discharging fiscal functions as such. In this regard, the Manual on Certificate of Settlement and Balances (Rev. 1993) (The Manual)
states, inter alia:

TITLE IV. ACCOUNTABILITY, RESPONSIBILITY AND LIABILITY FOR GOVERNMENT FUNDS AND
PROPERTY

Government officials and employees, in the discharge of fiscal functions, shall ensure that all government resources
are managed, expended and utilized in accordance with law, rules and regulations and safeguarded against loss or
wastage thru illegal or improper disposition.

In the implementation of the above functions, they shall be guided by the following provisions:

Sec. 26. ACCOUNTABILITY FOR GOVERNMENT FUNDS AND PROPERTY

26.1. Every officer of any government agency whose duties permit or require the possession or custody of
government funds or property shall be accountable therefor and for the safekeeping thereof in conformity with law.

26.2 Every accountable officer shall be properly bonded in accordance with law.

Sec. 27. RESPONSIBILITY FOR GOVERNMENT FUNDS AND PROPERTY

The head of any agency of the government is immediately and primarily responsible for all government funds and
property pertaining to his agency.

Persons entrusted with the possession or custody of the funds or property under the agency head shall be
immediately responsible to him without prejudice to the liability of either party to the government.

Sec. 28. SUPERVISION OVER ACCOUNTABLE OFFICERS

The head of any agency or instrumentality of the national government or any government-owned or controlled
corporation and any other self-governing board or commission of the government shall exercise the diligence of
good father of a family in supervising the accountable officers under his control to prevent the incurrence of loss of
government funds or property, otherwise he shall be jointly and severally liable with the person primarily
accountable therefor. . . .

Sec. 29. LIABILITY OF ACCOUNTABLE, SUPERIOR AND SUBORDINATE OFFICERS FOR

GOVERNMENT FUNDS

29.1 Every officer accountable for government funds shall be liable for alllosses resulting from the unlawful deposit,
use, or application thereof and for all losses attributable to negligence in the keeping of the funds.

29.2 Liability of Superior Officers. — A public officer shall not be civilly liable for acts done in the performance of
his official duties, unless there is a clear showing of bad faith, malice or gross negligence.

xxx xxx xxx

 29.5 Liability of Subordinate Officers. — No subordinate officer or employee shall be civilly liable for acts done by
him in good faith in the performance of his duties. However, he shall be liable for willful or negligent acts done by
him which are contrary to law, morals, public policy and good customs even if he acted under order or instructions
of his superiors.

Sec. 30. LIABILITY FOR UNLAWFUL/ILLEGAL EXPENDITURES OR USES OF GOVERNMENT FUNDS

30.1.1 Expenditures of government funds or uses of government property in violation of law or regulations shall be
a personal liability of the official or employee found to be directly responsible therefor.

30.1.2 Every expenditure or obligation authorized or incurred in violation of law or of the annual budgetary measure
shall be void. Every payment made in violation thereof shall be illegal and every official or employee authorizing or
making such payment, or taking part therein, and every person receiving such payment shall be jointly and severally
liable for the full amount so paid or received. (Emphasis supplied)

The ponente points out that our reference to the Manual supports the view that Tabuena was only civilly liable.

This is a misappreciation of the entire sense of the dissent. It must be borne in mind that said reference was made after the conclusion
was reached that Tabuena was indeed criminally liable for his acts. It is hornbook knowledge that criminal liability carries with it the
civil, specially when, as in this case, the latter arose from the former. Hence, the statement: "Tabuena was also personally accountable
for the funds in his custody, . . . ."

Sections 29.2 and 29.5 of the Manual, which the ponente uses to illustrate his point, actually includes exceptions to the grant of
immunity from civil liability of a public officer for acts done in the performance of his official duties: (a) The preceding statement
itself says that the acts must be done "in the performance of his official duties;" (b) Sec. 29.2 exempts him from civil liability, "unless
there is a clear showing of bad faith, malice or gross negligence;" and (c) Sec. 29.5 states that "he shall be liable for willful or
negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acted under order or
instructions of his superiors." The quoted provisions have been once more underscored herein.

The ponencia futher states that "(t)here is no showing that Tabuena has anything to do whatsoever with the execution of the
MARCOS Memorandum." But very clearly, the admitted facts show that it was precisely Tabuena who implemented or executed the
said Memorandum.

The ponencia cites Acebedo where the accused was acquitted after it was shown that it was actually the latter's secretary who
collected and converted the money. Tabuena's case is starkly different, for here it was Tabuena himself who personally turned over the
money to the President's secretary. It was done with his full knowledge and consent, the obvious irregularity thereof notwithstanding.

In petitioner Peralta's case, we again yield to the factual findings of the trial court. It said:

. . . . The question is whether or not Peralta properly signed the third application for the issuance of a Manager's
Check drawn against the MIAA's savings account with the Villamor Office of the Philippine National Bank.

At the time that accused Peralta signed the request for the issuance of a Manager's Check, he was the Acting
Financial Services Manager of the MIAA and all withdrawals of funds required is (sic) co-signature.

The reason for the designation of more than one co-signatory is not merely useless ceremony; it is to serve as a
counter check for the propriety of the disbursement.

While, indeed, accused Luis Tabuena was the highest official in the MIAA and had authority to disburse its funds,
this authority was not absolute. It had to be for properly subsisting obligations and the disbursement had to be
against funds existing for that purpose. This is one reason for the need for supporting documentation before
disbursements of funds are authorized. And this is the special need for finance officers such as Adolfo Peralta, as
Financial Services Manager, to be co-signatories (sic): to ascertain the validity of the obligation and, in this
particular instance, the existence of the balance to be covered by the manager's check the application for which had
been presented for his co-signature.

In this case, Adolfo Peralta speaks of the existence of (the) P27.9 million liability in favor of the PNCC as
justification for his acts herein. True enough, for that amount was the liability as of December 31, 1985. As finance
officer, however, he could not claim ignorance of the fact that as of January 29, 1986, the date of the application for
a manager's check which he signed, two previous manager's checks worth P25 million each had already been applied
for and the total amount of P50 million had already been withdrawn . . . .

It was only two weeks after these two withdrawals when Peralta, as Finance Services Manager, participated in the
authorization for the disbursement of another P5 million. This last withdrawal brought up the total of withdrawals to
P55 million for the payment of a P27.9 million obligation.

Thus while it is true, as Adolfo Peralta claims, that there was a liability in favor of the PNCC, there was no way
Peralta could disclaim responsibility for the excessive withdrawals to the extent of P5 million thereof allegedly to
pay that liability. There was no way Peralta could justify his co-signing the application for a manager's check for P5
million on January 29, 1986.
The ponente cites a dissenting opinion of Justice Isagani A. Cruz in Development Bank of the Philippines v. Pandogar to uphold
his ponencia. Need we remind our respected colleague that the corroborative value of a dissenting opinion is minimal? Precisely, it
supports a position contrary to, and obviously unacceptable to the majority.

Petitioners were found guilty of malversation by negligence, which is possible even if the charge was for intentional malversation.
This does not negate, however, their criminal liability; it merely declares that negligence takes the place of malice. Article 3 of the
Code provides the rationale when it explicitly states that "felonies are committed not only by means of deceit but also by means of
fault."

The Sandiganbayan's finding that petitioners converted and misappropriated the P55 million cannot simply be brushed aside upon
petitioners' claim that the money was delivered in good faith to the Office of the President under the mistaken assumption that the
President was entitled to receive the same. They rely on the case of People v. Fabian, 26 which declared that "(g)ood faith in the
payment of public funds relieves a public officer from the crime of malversation." But the very same decision also cites Article 217 to
the effect that malversation may be committed by an accountable public officer by negligence if he permits any other person to take
the public funds or property in his custody. It is immaterial if petitioners actually converted or misappropriated MIAA's funds for their
own benefit, for by their very negligence, they allowed another person to appropriate the same.

The fact that no conspiracy was established between petitioners and the true embezzlers of the P55 million is likewise of no moment.
The crime of malversation, as defined under Article 217 of the Code, 27 was consummated the moment petitioners deliberately turned
over and allowed the President's private secretary to take custody of public funds intended as payment of MIAA's obligations to the
PNCC, if obligation there was at all. That petitioner Tabuena who was then General Manager of MIAA personally and knowingly
participated in the misfeasance compounds the maleficence of it all. Rank may have its privileges but certainly a blatant disregard of
law and administrative rules is not one of them. It must be etched in the minds of public officials that the underside of privileges is
responsibilities.

As accountable officers, petitioners clearly transgressed administrative and legal bounds. Even on the pretext of obeying a superior's
seemingly legitimate orders, their actuations can hardly be justified. To rule otherwise would set an alarming precedent where all
that public officials who have unlawfully enriched themselves at the people's expense and those accused of graft and corruption would
have to do to exculpate themselves from any wrongdoing would be to invoke Article 11, paragraph 6 of the Code, thus gaining instant
immunity from criminal prosecution.

Government officials, particularly heads of their agencies who, by virtue of their exalted positions exude power and authority but pay
blind obeisance to orders of those higher up in the bureaucratic hierarchy regardless of the illegality, impropriety or immorality of
such orders, would do well to internalize this prayer for national leaders delivered by former Senate President Jovito R. Salonga in
Malacanang on November 24, 1996:

xxx xxx xxx

When they begin to think of how much power they possess, help them to know the many things that are beyond their
power — the change of seasons, sun and rain, moonlight and starlight and all the wonders of Your creation;

When they are led to believe that they are exempt from public accountability, help them to know that they are
ultimately accountable to You, the God of truth and justice and mercy;

x x x           x x x          x x x

The ponencia makes the final observation that the limitations on the right of judges to ask questions during the trial were not observed
by respondent court; that the three Justices who heard the testimonies asked 37 questions of witness Francis Monera, 67 of Tabuena,
and 41 of Peralta — more than what the prosecutors and defense counsels propounded.

While such numbers unduly disturbed the ponente, it cannot be gainsaid that such action by the members of the First Division of
respondent Sandiganbayan was, under the circumstances, not only necessary and called for, but likewise legally acceptable.

In the first place, even the ponente makes the observation that petitioners did not raise this matter as error. In other words, they did not
feel prejudiced by the respondent court's actuations; nor did they construe the series of questions asked of them by the Justices as
indicative of any unfairness or partiality violative of their right to due process.

Then, too, it must be noted that there is a difference in the right of a judge in a non-jury system, like that obtaining in the Philippines,
to question witnesses or parties themselves, and that of a judge in a jury trial. The bulk of jurisprudence used in the  ponencia was
decided in the United States, where the jury system is extensively utilized in civil as well as in criminal trials. In this regard, "(i)t has
been noted that the opinion of the judge, on account of his position and the respect and confidence reposed in him and in his learning
and assumed impartiality, is likely to have great weight with the jury, and such fact of necessity requires impartial conduct on his part.
The judge is a figure of overpowering influence, whose every change in facial expression is noted, and whose every word is received
attentively and acted upon with alacrity and without question." 28

Thus, while a trial judge is expected to be circumspect in his choice of words lest they be construed as signs of partiality, he "is not,
however, required to remain silent and passive throughout a jury trial;" 29 he should, instead, "conduct a trial in an orderly way with a
view to eliciting the truth and to attaining justice between the parties." 30

Inasmuch as it is the jury which has the burden of meting out justice, it is acceptable for a judge in a jury trial to "ask any question
which would be proper for the prosecutor or defense counsel to ask so long as he does not depart from a standard of fairness and
impartiality."31 "Questions designed to clarify points and to elicit additional relevant evidence, particularly in a non-jury trial, are not
improper." 32
The numerous questions asked by the court a quo should have been scrutinized for any possible influence it may have had in arriving
at the assailed decision. The true test for the appropriateness or inappropriateness of court queries is not their quantity but their quality,
that is, whether the defendant was prejudiced by such questioning.33 To repeat, petitioners did not feel prejudiced by the trial court's
actions; otherwise, they would have raised this issue in the instant petition.

The ponencia states that he is "well aware of the fear entertained by some that this decision may set a dangerous precedent in that
those guilty of enriching themselves at the expense of the public would be able to escape criminal liability by the mere expedient of
invoking "good faith." Our position has been either misinterpreted or misread for we do not merely speak of "good faith." In fact, our
main thrust is that such a breed of people who enriched themselves at the expense of the public might handily use as an excuse or a
justifying circumstance to escape liability their having obeyed the "lawful orders" of their superior under Article 11, paragraph 6 of the
Revised Penal Code.

The ponente makes a plea towards the close of his decision, that we should not act impulsively in the instant case. "In our eagerness to
bring to justice the malefactors of the Marcos regime, we must not succumb to the temptation to commit the greatest injustice of
visiting the sins of the wrongdoers upon an innocent."

In our opinion, precisely, Tabuena and Peralta are wrongdoers, guilty of acts punishable by law. Needless to say, under our system of
laws, they must be meted out the corresponding penalty. We draw attention to the fact that nowhere in this dissent do we single out the
so-called "malefactors of the Marcos regime" alone. We addressed ourselves to all who commit venalities at the expense of the people,
as defined and punished by law but who try to justify their actions by invoking the very law which they violated.

For the reasons stated above, I vote to affirm petitioners' conviction by respondent court.
 E. Absolutory Causes
a. Art. 6 (3), RPC

b. Art. 20, RPC

Art. 20. Accessories who are exempt from criminal liability. — The penalties prescribed for accessories shall not be imposed
upon those who are such with respect to their spouses, ascendants, descendants, legitimate, natural, and adopted brothers and
sisters, or relatives by affinity within the same degrees, with the single exception of accessories falling within the provisions of
paragraph 1 of the next preceding article.

c. Art. 247, RPC

Article 247. -- Death or Physical Injuries under Exceptional Circumstances. -- Any legally married person who, having
surprised his spouse in the act of thereafter, or shall inflict upon them any serious injury, shall suffer the penalty of destierro
(banishment).

d. Art. 280, RPC

Art. 280. Qualified trespass to dwelling. — Any private person who shall enter the dwelling of another against the latter's will
shall be punished by arresto mayor and a fine not exceeding 1,000 pesos.

e. Art. 332, RPC

f. Section 21 of Republic Act No. 9165, as amended by Republic Act No. 10640

18. Intestate Estate of Manolita Gonzales v. People, G.R. No. 181409

G.R. No. 181409               February 11, 2010

INTESTATE ESTATE OF MANOLITA GONZALES VDA. DE CARUNGCONG, represented by MEDIATRIX

CARUNGCONG, as Administratrix, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES and WILLIAM SATO, Respondents.

DECISION

CORONA, J.:

Article 332 of the Revised Penal Code provides:

ART. 332. Persons exempt from criminal liability. – No criminal, but only civil liability shall result from the commission of the crime
of theft, swindling, or malicious mischief committed or caused mutually by the following persons:

1. Spouses, ascendants and descendants, or relatives by affinity in the same line;

2. The widowed spouse with respect to the property which belonged to the deceased spouse before the same shall have
passed into the possession of another; and

3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together.

The exemption established by this article shall not be applicable to strangers participating in the commission of the crime. (emphasis
supplied)
For purposes of the aforementioned provision, is the relationship by affinity created between the husband and the blood relatives of his
wife (as well as between the wife and the blood relatives of her husband) dissolved by the death of one spouse, thus ending the
marriage which created such relationship by affinity? Does the beneficial application of Article 332 cover the complex crime of estafa
thru falsification?

Mediatrix G. Carungcong, in her capacity as the duly appointed administratrix 1 of petitioner intestate estate of her deceased mother
Manolita Gonzales vda. de Carungcong, filed a complaint-affidavit 2 for estafa against her brother-in-law, William Sato, a Japanese
national. Her complaint-affidavit read:

I, MEDIATRIX CARUNGCONG Y GONZALE[S], Filipino, of legal age, single, and resident of Unit 1111, Prince Gregory
Condominium, 105 12th Avenue, Cubao, Quezon City, after being duly sworn, depose and state that:

1. I am the duly appointed Administratrix of the Intestate Estate of Manolita Carungcong Y Gonzale[s], docketed as Spec.
Procs. No. [Q]-95-23621[,] Regional Trial Court of Quezon City, Branch 104, being one (1) of her surviving daughters. Copy
of the Letters of Administration dated June 22, 1995 is hereto attached as Annex "A" to form an integral part hereof.

2. As such Administratrix, I am duty bound not only to preserve the properties of the Intestate Estate of Manolita Carungcong
Y Gonzale[s], but also to recover such funds and/or properties as property belonging to the estate but are presently in the
possession or control of other parties.

3. After my appointment as Administratrix, I was able to confer with some of the children of my sister Zenaida Carungcong
Sato[,] who predeceased our mother Manolita Carungcong Y Gonzales, having died in Japan in 1991.

4. In my conference with my nieces Karen Rose Sato and Wendy Mitsuko Sato, age[d] 27 and 24 respectively, I was able to
learn that prior to the death of my mother Manolita Carungcong Y Gonzale[s], [s]pecifically on o[r] about November 24,
1992, their father William Sato, through fraudulent misrepresentations, was able to secure the signature and thumbmark of
my mother on a Special Power of Attorney whereby my niece Wendy Mitsuko Sato, who was then only twenty (20) years
old, was made her attorney-in-fact, to sell and dispose four (4) valuable pieces of land in Tagaytay City. Said Special Power
of Attorney, copy of which is attached as ANNEX "A" of the Affidavit of Wendy Mitsuko Sato, was signed and
thumbmark[ed] by my mother because William Sato told her that the documents she was being made to sign involved her
taxes. At that time, my mother was completely blind, having gone blind almost ten (10) years prior to November, 1992.

5. The aforesaid Special Power of Attorney was signed by my mother in the presence of Wendy, my other niece Belinda
Kiku Sato, our maid Mana Tingzon, and Governor Josephine Ramirez who later became the second wife of my sister’s
widower William Sato.

6. Wendy Mitsuko Sato attests to the fact that my mother signed the document in the belief that they were in connection with
her taxes, not knowing, since she was blind, that the same was in fact a Special Power of Attorney to sell her Tagaytay
properties.

7. On the basis of the aforesaid Special Power of Attorney, William Sato found buyers for the property and made my niece
Wendy Mitsuko Sato sign three (3) deeds of absolute sale in favor of (a) Anita Ng (Doc. 2194, Page No. 41, Book No. V,
Series of 1992 of Notary Public Vicente B. Custodio), (b) Anita Ng (Doc. No. 2331, Page No. 68, Book No. V, Series of
1992 of Notary Public Vicente B. Custodio) and (c) Ruby Lee Tsai (Doc. No. II, Page No. 65, Book No. II, Series of 1993 of
Notary Public Toribio D. Labid). x x x

8. Per the statement of Wendy Mitsuko C. Sato, the considerations appearing on the deeds of absolute sale were not the true
and actual considerations received by her father William Sato from the buyers of her grandmother’s properties. She attests
that Anita Ng actually paid ₱7,000,000.00 for the property covered by TCT No. 3148 and ₱7,034,000.00 for the property
covered by TCT No. 3149. All the aforesaid proceeds were turned over to William Sato who undertook to make the proper
accounting thereof to my mother, Manolita Carungcong Gonzale[s].

9. Again, per the statement of Wendy Mitsuko C. Sato, Ruby Lee Tsai paid ₱8,000,000.00 for the property covered by Tax
Declaration No. GR-016-0735, and the proceeds thereof were likewise turned over to William Sato.

10. The considerations appearing on the deeds of sale were falsified as Wendy Mitsuko C. Sato has actual knowledge of the
true amounts paid by the buyers, as stated in her Affidavit, since she was the signatory thereto as the attorney-in-fact of
Manolita Carungcong Y Gonzale[s].

11. Wendy was only 20 years old at the time and was not in any position to oppose or to refuse her father’s orders.

12. After receiving the total considerations for the properties sold under the power of attorney fraudulently secured from my
mother, which total ₱22,034,000.00, William Sato failed to account for the same and never delivered the proceeds to
Manolita Carungcong Y Gonzale[s] until the latter died on June 8, 1994.

13. Demands have been made for William Sato to make an accounting and to deliver the proceeds of the sales to me as
Administratrix of my mother’s estate, but he refused and failed, and continues to refuse and to fail to do so, to the damage
and prejudice of the estate of the deceased Manolita Carungcong Y Gonzale[s] and of the heirs which include his six (6)
children with my sister Zenaida Carungcong Sato. x x x3

Wendy Mitsuko Sato’s supporting affidavit and the special power of attorney allegedly issued by the deceased Manolita Gonzales vda.
de Carungcong in favor of Wendy were attached to the complaint-affidavit of Mediatrix.
In a resolution dated March 25, 1997, the City Prosecutor of Quezon City dismissed the complaint. 4 On appeal, however, the Secretary
of Justice reversed and set aside the resolution dated March 25, 1997 and directed the City Prosecutor of Quezon City to file an
Information against Sato for violation of Article 315, paragraph 3(a) of the Revised Penal Code. 5 Thus, the following Information was
filed against Sato in the Regional Trial Court of Quezon City, Branch 87:6

INFORMATION

The undersigned accuses WILLIAM SATO of the crime of ESTAFA under Article 315[,] par. 3(a) of the Revised Penal Code,
committed as follows:

That on or about the 24th day of November, 1992, in Quezon City, Philippines, the above-named accused, by means of deceit, did,
then and there, wil[l]fully, unlawfully and feloniously defraud MANOLITA GONZALES VDA. DE CARUNGCONG in the
following manner, to wit: the said accused induced said Manolita Gonzales Vda. De Carungcong[,] who was already then blind and 79
years old[,] to sign and thumbmark a special power of attorney dated November 24, 1992 in favor of Wendy Mitsuko C. Sato,
daughter of said accused, making her believe that said document involved only her taxes, accused knowing fully well that said
document authorizes Wendy Mitsuko C. Sato, then a minor, to sell, assign, transfer or otherwise dispose of to any person or entity of
her properties all located at Tagaytay City, as follows:

1. One Thousand Eight Hundred Seven(ty) One (1,871) square meters more or less and covered by T.C.T. No. 3147;

2. Five Hundred Forty (540) square meters more or less and covered by T.C.T. No. 3148 with Tax Declaration No. GR-016-
0722, Cadastral Lot No. 7106;

3. Five Hundred Forty (540) square meters more or less and covered by T.C.T. No. 3149 with Tax Declaration No. GR-016-
0721, Cadastral Lot No. 7104;

4. Eight Hundred Eighty Eight (888) square meters more or less with Tax Declaration No. GR-016-1735, Cadastral Lot No.
7062;

registered in the name of Manolita Gonzales Vda. De Carungcong, and once in the possession of the said special power of attorney
and other pertinent documents, said accused made Wendy Mitsuko Sato sign the three (3) Deeds of Absolute Sale covering Transfer
Certificate of Title [TCT] No. 3148 for ₱250,000.00, [TCT] No. 3149 for ₱250,000.00 and [Tax Declaration] GR-016-0735 for
₱650,000.00 and once in possession of the proceeds of the sale of the above properties, said accused, misapplied, misappropriated and
converted the same to his own personal use and benefit, to the damage and prejudice of the heirs of Manolita Gonzales Vda. De
Carungcong who died in 1994.

Contrary to law.7

Subsequently, the prosecution moved for the amendment of the Information so as to increase the amount of damages from ₱1,150,000,
the total amount stated in the deeds of sale, to ₱22,034,000, the actual amount received by Sato.

Sato moved for the quashal of the Information, claiming that under Article 332 of the Revised Penal Code, his relationship to the
person allegedly defrauded, the deceased Manolita who was his mother-in-law, was an exempting circumstance.

The prosecution disputed Sato’s motion in an opposition dated March 29, 2006.

In an order dated April 17, 2006,8 the trial court granted Sato’s motion and ordered the dismissal of the criminal case:

The Trial Prosecutor’s contention is that the death of the wife of the accused severed the relationship of affinity between accused and
his mother-in-law. Therefore, the mantle of protection provided to the accused by the relationship is no longer obtaining.

A judicious and thorough examination of Article 332 of the Revised Penal Code convinces this Court of the correctness of the
contention of the [d]efense. While it is true that the death of Zenaida Carungcong-Sato has extinguished the marriage of accused with
her, it does not erase the fact that accused and Zenaida’s mother, herein complainant, are still son[-in-law] and mother-in-law and they
remained son[-in-law] and mother-in-law even beyond the death of Zenaida.

Article 332(1) of the Revised Penal Code, is very explicit and states no proviso. "No criminal, but only civil liability[,] shall result
from the commission of the crime of theft, swindling or malicious mischief committed or caused mutually by xxx 1) spouses,
ascendants and descendants, or relatives by affinity in the same line."

Article 332, according to Aquino, in his Commentaries [to] Revised Penal Code, preserves family harmony and obviates scandal,
hence even in cases of theft and malicious mischief, where the crime is committed by a stepfather against his stepson, by a grandson
against his grandfather, by a son against his mother, no criminal liability is incurred by the accused only civil ( Vicente Alavare, 52
Phil. 65; Adame, CA 40 OG 12th Supp. 63; Cristobal, 84 Phil. 473).

Such exempting circumstance is applicable herein.

WHEREFORE, finding the Motion to Quash Original Information meritorious, the same is GRANTED and, as prayed for, case is
hereby DISMISSED.

SO ORDERED.9 (underlining supplied in the original)

The prosecution’s motion for reconsideration10 was denied in an order dated June 2, 2006.11

Dissatisfied with the trial court’s rulings, the intestate estate of Manolita, represented by Mediatrix, filed a petition for certiorari in the
Court of Appeals12 which, however, in a decision13 dated August 9, 2007, dismissed it. It ruled:

[W]e sustain the finding of [the trial court] that the death of Zenaida did not extinguish the relationship by affinity between her
husband, private respondent Sato, and her mother Manolita, and does not bar the application of the exempting circumstance under
Article 332(1) of the Revised Penal Code in favor of private respondent Sato.

We further agree with the submission of the [Office of the Solicitor General (OSG)] that nothing in the law and/or existing
jurisprudence supports the argument of petitioner that the fact of death of Zenaida dissolved the relationship by affinity between
Manolita and private respondent Sato, and thus removed the protective mantle of Article 332 of the Revised Penal Code from said
private respondent; and that notwithstanding the death of Zenaida, private respondent Sato remains to be the son-in-law of Manolita,
and a brother-in-law of petitioner administratrix. As further pointed out by the OSG, the filing of the criminal case for estafa against
private respondent Sato already created havoc among members of the Carungcong and Sato families as private respondent’s daughter
Wendy Mitsuko Sato joined cause with her aunt [Mediatrix] Carungcong y Gonzales, while two (2) other children of private
respondent, William Francis and Belinda Sato, took the side of their father.

There is a dearth of jurisprudence and/or commentaries elaborating on the provision of Article 332 of the Revised Penal Code.
However, from the plain language of the law, it is clear that the exemption from criminal liability for the crime of swindling (estafa)
under Article 315 of the Revised Penal Code applies to private respondent Sato, as son-in-law of Manolita, they being "relatives by
affinity in the same line" under Article 332(1) of the same Code. We cannot draw the distinction that following the death of Zenaida in
1991, private respondent Sato is no longer the son-in-law of Manolita, so as to exclude the former from the exempting circumstance
provided for in Article 332 (1) of the Revised Penal Code.

Ubi lex non distinguit nec nos distinguere debemos. Basic is the rule in statutory construction that where the law does not distinguish,
the courts should not distinguish. There should be no distinction in the application of law where none is indicated. The courts could
only distinguish where there are facts or circumstances showing that the lawgiver intended a distinction or qualification. In such a
case, the courts would merely give effect to the lawgiver’s intent. The solemn power and duty of the Court to interpret and apply the
law does not include the power to correct by reading into the law what is not written therein.

Further, it is an established principle of statutory construction that penal laws are strictly construed against the State and liberally in
favor of the accused. Any reasonable doubt must be resolved in favor of the accused. In this case, the plain meaning of Article 332 (1)
of the Revised Penal Code’s simple language is most favorable to Sato.14

The appellate court denied reconsideration.15 Hence, this petition.

Petitioner contends that the Court of Appeals erred in not reversing the orders of the trial court. It cites the commentary of Justice Luis
B. Reyes in his book on criminal law that the rationale of Article 332 of the Revised Penal Code exempting the persons mentioned
therein from criminal liability is that the law recognizes the presumed co-ownership of the property between the offender and the
offended party. Here, the properties subject of the estafa case were owned by Manolita whose daughter, Zenaida Carungcong-Sato
(Sato’s wife), died on January 28, 1991. Hence, Zenaida never became a co-owner because, under the law, her right to the three
parcels of land could have arisen only after her mother’s death. Since Zenaida predeceased her mother, Manolita, no such
right came about and the mantle of protection provided to Sato by the relationship no longer existed.

Sato counters that Article 332 makes no distinction that the relationship may not be invoked in case of death of the spouse at the time
the crime was allegedly committed. Thus, while the death of Zenaida extinguished her marriage with Sato, it did not dissolve the son-
in-law and mother-in-law relationship between Sato and Zenaida’s mother, Manolita.

For his part, the Solicitor General maintains that Sato is covered by the exemption from criminal liability provided under Article 332.
Nothing in the law and jurisprudence supports petitioner’s claim that Zenaida’s death dissolved the relationship by affinity between
Sato and Manolita. As it is, the criminal case against Sato created havoc among the members of the Carungcong and Sato families, a
situation sought to be particularly avoided by Article 332’s provision exempting a family member committing theft, estafa or
malicious mischief from criminal liability and reducing his/her liability to the civil aspect only.

The petition has merit.

The resolution of this case rests on the interpretation of Article 332 of the Revised Penal Code. In particular, it calls for the
determination of the following: (1) the effect of death on the relationship by affinity created between a surviving spouse and the blood
relatives of the deceased spouse and (2) the extent of the coverage of Article 332.

Effect of Death on Relationship By Affinity as Absolutory Cause

Article 332 provides for an absolutory cause16in the crimes of theft, estafa (or swindling) and malicious mischief. It limits the
responsibility of the offender to civil liability and frees him from criminal liability by virtue of his relationship to the offended party.

In connection with the relatives mentioned in the first paragraph, it has been held that included in the exemptions are parents-in-law,
stepparents and adopted children.17 By virtue thereof, no criminal liability is incurred by the stepfather who commits malicious
mischief against his stepson;18 by the stepmother who commits theft against her stepson;19 by the stepfather who steals something from
his stepson;20 by the grandson who steals from his grandfather; 21 by the accused who swindles his sister-in-law living with him; 22 and
by the son who steals a ring from his mother.23

Affinity is the relation that one spouse has to the blood relatives of the other spouse. It is a relationship by marriage or
a familial relation resulting from marriage. 24 It is a fictive kinship, a fiction created by law in connection with the institution of
marriage and family relations.

If marriage gives rise to one’s relationship by affinity to the blood relatives of one’s spouse, does the extinguishment of marriage by
the death of the spouse dissolve the relationship by affinity?

Philippine jurisprudence has no previous encounter with the issue that confronts us in this case. That is why the trial and appellate
courts acknowledged the "dearth of jurisprudence and/or commentaries" on the matter. In contrast, in the American legal system, there
are two views on the subject. As one Filipino author observed:

In case a marriage is terminated by the death of one of the spouses, there are conflicting views. There are some who believe that
relationship by affinity is not terminated whether there are children or not in the marriage (Carman vs. Newell, N.Y. 1 [Denio] 25, 26).
However, the better view supported by most judicial authorities in other jurisdictions is that, if the spouses have no living issues or
children and one of the spouses dies, the relationship by affinity is dissolved. It follows the rule that relationship by affinity ceases
with the dissolution of the marriage which produces it (Kelly v. Neely, 12 Ark. 657, 659, 56 Am Dec. 288). On the other hand, the
relationship by affinity is continued despite the death of one of the spouses where there are living issues or children of the marriage "in
whose veins the blood of the parties are commingled, since the relationship of affinity was continued through the medium of the issue
of the marriage" (Paddock vs. Wells, 2 Barb. Ch. 331, 333).25

The first view (the terminated affinity view) holds that relationship by affinity terminates with the dissolution of the marriage either by
death or divorce which gave rise to the relationship of affinity between the parties. 26 Under this view, the relationship by affinity is
simply coextensive and coexistent with the marriage that produced it. Its duration is indispensably and necessarily determined by the
marriage that created it. Thus, it exists only for so long as the marriage subsists, such that the death of a spouse  ipso facto ends the
relationship by affinity of the surviving spouse to the deceased spouse’s blood relatives.

The first view admits of an exception. The relationship by affinity continues even after the death of one spouse when there is a
surviving issue.27 The rationale is that the relationship is preserved because of the living issue of the marriage in whose veins the blood
of both parties is commingled.28

The second view (the continuing affinity view) maintains that relationship by affinity between the surviving spouse and the kindred of
the deceased spouse continues even after the death of the deceased spouse, regardless of whether the marriage produced children or
not.29 Under this view, the relationship by affinity endures even after the dissolution of the marriage that produced it as a result of the
death of one of the parties to the said marriage. This view considers that, where statutes have indicated an intent to benefit step-
relatives or in-laws, the "tie of affinity" between these people and their relatives-by-marriage is not to be regarded as terminated upon
the death of one of the married parties.30

After due consideration and evaluation of the relative merits of the two views, we hold that the second view is more consistent with
the language and spirit of Article 332(1) of the Revised Penal Code.

First, the terminated affinity view is generally applied in cases of jury disqualification and incest. 31 On the other hand, the
continuing affinity view has been applied in the interpretation of laws that intend to benefit step-relatives or in-laws. Since
the purpose of the absolutory cause in Article 332(1) is meant to be beneficial to relatives by affinity within the degree
covered under the said provision, the continuing affinity view is more appropriate.

Second, the language of Article 332(1) which speaks of "relatives by affinity in the same line" is couched in general
language. The legislative intent to make no distinction between the spouse of one’s living child and the surviving spouse of
one’s deceased child (in case of a son-in-law or daughter-in-law with respect to his or her parents-in-law) 32 can be drawn
from Article 332(1) of the Revised Penal Code without doing violence to its language.

Third, the Constitution declares that the protection and strengthening of the family as a basic autonomous social institution
are policies of the State and that it is the duty of the State to strengthen the solidarity of the family. 33 Congress has also
affirmed as a State and national policy that courts shall preserve the solidarity of the family. 34 In this connection, the spirit of
Article 332 is to preserve family harmony and obviate scandal. 35 The view that relationship by affinity is not affected by the
death of one of the parties to the marriage that created it is more in accord with family solidarity and harmony.

Fourth, the fundamental principle in applying and in interpreting criminal laws is to resolve all doubts in favor of the
accused. In dubio pro reo. When in doubt, rule for the accused. 36 This is in consonance with the constitutional guarantee that
the accused shall be presumed innocent unless and until his guilt is established beyond reasonable doubt. 37

Intimately related to the in dubio pro reo principle is the rule of lenity.38 The rule applies when the court is faced with two possible
interpretations of a penal statute, one that is prejudicial to the accused and another that is favorable to him. The rule calls for the
adoption of an interpretation which is more lenient to the accused.

Lenity becomes all the more appropriate when this case is viewed through the lens of the basic purpose of Article 332 of the Revised
Penal Code to preserve family harmony by providing an absolutory cause. Since the goal of Article 332(1) is to benefit the accused,
the Court should adopt an application or interpretation that is more favorable to the accused. In this case, that interpretation is the
continuing affinity view.

Thus, for purposes of Article 332(1) of the Revised Penal Code, we hold that the relationship by affinity created between the surviving
spouse and the blood relatives of the deceased spouse survives the death of either party to the marriage which created the affinity.
(The same principle applies to the justifying circumstance of defense of one’s relatives under Article 11[2] of the Revised Penal Code,
the mitigating circumstance of immediate vindication of grave offense committed against one’s relatives under Article 13[5] of the
same Code and the absolutory cause of relationship in favor of accessories under Article 20 also of the same Code.)
Scope of Article 332 of The Revised Penal Code

The absolutory cause under Article 332 of the Revised Penal Code only applies to the felonies of theft, swindling and malicious
mischief. Under the said provision, the State condones the criminal responsibility of the offender in cases of theft, swindling and
malicious mischief. As an act of grace, the State waives its right to prosecute the offender for the said crimes but leaves the private
offended party with the option to hold the offender civilly liable.

However, the coverage of Article 332 is strictly limited to the felonies mentioned therein. The plain, categorical and unmistakable
language of the provision shows that it applies exclusively to the simple crimes of theft, swindling and malicious mischief. It does not
apply where any of the crimes mentioned under Article 332 is complexed with another crime, such as theft through falsification or
estafa through falsification.39

The Information against Sato charges him with estafa. However, the real nature of the offense is determined by the facts alleged in the
Information, not by the designation of the offense. 40 What controls is not the title of the Information or the designation of the offense
but the actual facts recited in the Information. 41 In other words, it is the recital of facts of the commission of the offense, not the
nomenclature of the offense, that determines the crime being charged in the Information. 42 It is the exclusive province of the court to
say what the crime is or what it is named. 43 The determination by the prosecutor who signs the Information of the crime committed is
merely an opinion which is not binding on the court.44

A reading of the facts alleged in the Information reveals that Sato is being charged not with simple estafa but with the  complex crime
of estafa through falsification of public documents. In particular, the Information states that Sato, by means of deceit, intentionally
defrauded Manolita committed as follows:

(a) Sato presented a document to Manolita (who was already blind at that time) and induced her to sign and thumbmark the
same;

(b) he made Manolita believe that the said document was in connection with her taxes when it was in fact a special power of
attorney (SPA) authorizing his minor daughter Wendy to sell, assign, transfer or otherwise dispose of Manolita’s properties
in Tagaytay City;

(c) relying on Sato’s inducement and representation, Manolita signed and thumbmarked the SPA in favor of Wendy Mitsuko
Sato, daughter of Sato;

(d) using the document, he sold the properties to third parties but he neither delivered the proceeds to Manolita nor accounted
for the same and

(d) despite repeated demands, he failed and refused to deliver the proceeds, to the damage and prejudice of the estate of
Manolita.

The above averments in the Information show that the estafa was committed by attributing to Manolita (who participated in the
execution of the document) statements other than those in fact made by her. Manolita’s acts of signing the SPA and affixing her
thumbmark to that document were the very expression of her specific intention that something be done about her taxes. Her signature
and thumbmark were the affirmation of her statement on such intention as she only signed and thumbmarked the SPA (a document
which she could not have read) because of Sato’s representation that the document pertained to her taxes. In signing and
thumbmarking the document, Manolita showed that she believed and adopted the representations of Sato as to what the document was
all about, i.e., that it involved her taxes. Her signature and thumbmark, therefore, served as her conformity to Sato’s proposal that she
execute a document to settle her taxes.

Thus, by inducing Manolita to sign the SPA, Sato made it appear that Manolita granted his daughter Wendy a special power of
attorney for the purpose of selling, assigning, transferring or otherwise disposing of Manolita’s Tagaytay properties when the fact was
that Manolita signed and thumbmarked the document presented by Sato in the belief that it pertained to her taxes. Indeed, the
document itself, the SPA, and everything that it contained were falsely attributed to Manolita when she was made to sign the SPA.

Moreover, the allegations in the Information that

(1) "once in the possession of the said special power of attorney and other pertinent documents, [Sato] made Wendy Mitsuko
Sato sign the three (3) Deeds of Absolute Sale" and

(2) "once in possession of the proceeds of the sale of the above properties, said accused, misapplied, misappropriated and
converted the same to his own personal use and benefit" raise the presumption that Sato, as the possessor of the falsified
document and the one who benefited therefrom, was the author thereof.

Furthermore, it should be noted that the prosecution moved for the amendment of the Information so as to increase the amount of
damages from ₱1,150,000 to ₱22,034,000. This was granted by the trial court and was affirmed by the Court of Appeals on certiorari.
This meant that the amended Information would now state that, while the total amount of consideration stated in the deeds of absolute
sale was only ₱1,150,000, Sato actually received the total amount of ₱22,034,000 as proceeds of the sale of Manolita’s
properties.45 This also meant that the deeds of sale (which were public documents) were also falsified by making untruthful statements
as to the amounts of consideration stated in the deeds.

Therefore, the allegations in the Information essentially charged a crime that was not simple estafa. Sato resorted to falsification of
public documents (particularly, the special power of attorney and the deeds of sale) as a necessary means to commit the estafa.
Since the crime with which respondent was charged was not simple estafa but the complex crime of estafa through falsification of
public documents, Sato cannot avail himself of the absolutory cause provided under Article 332 of the Revised Penal Code in his
favor.

Effect of Absolutory Cause Under Article 332 on Criminal Liability For The Complex Crime of Estafa Through Falsification
of Public Documents

The question may be asked: if the accused may not be held criminally liable for simple estafa by virtue of the absolutory cause under
Article 332 of the Revised Penal Code, should he not be absolved also from criminal liability for the complex crime of estafa through
falsification of public documents? No.

True, the concurrence of all the elements of the two crimes of estafa and falsification of public document is required for a proper
conviction for the complex crime of estafa through falsification of public document. That is the ruling in Gonzaludo v. People. 46 It
means that the prosecution must establish that the accused resorted to the falsification of a public document as a necessary means to
commit the crime of estafa.

However, a proper appreciation of the scope and application of Article 332 of the Revised Penal Code and of the nature of a complex
crime would negate exemption from criminal liability for the complex crime of estafa through falsification of public documents,
simply because the accused may not be held criminally liable for simple estafa by virtue of the absolutory cause under Article 332.

The absolutory cause under Article 332 is meant to address specific crimes against property, namely, the simple crimes of theft,
swindling and malicious mischief. Thus, all other crimes, whether simple or complex, are not affected by the absolutory cause
provided by the said provision. To apply the absolutory cause under Article 332 of the Revised Penal Code to one of the component
crimes of a complex crime for the purpose of negating the existence of that complex crime is to unduly expand the scope of Article
332. In other words, to apply Article 332 to the complex crime of estafa through falsification of public document would be to
mistakenly treat the crime of estafa as a separate simple crime, not as the component crime that it is in that situation. It would wrongly
consider the indictment as separate charges of estafa and falsification of public document, not as a single charge for the single
(complex) crime of estafa through falsification of public document.

Under Article 332 of the Revised Penal Code, the State waives its right to hold the offender criminally liable for the simple crimes of
theft, swindling and malicious mischief and considers the violation of the juridical right to property committed by the offender against
certain family members as a private matter and therefore subject only to civil liability. The waiver does not apply when the violation
of the right to property is achieved through (and therefore inseparably intertwined with) a breach of the public interest in the integrity
and presumed authenticity of public documents. For, in the latter instance, what is involved is no longer simply the property right
of a family relation but a paramount public interest.

The purpose of Article 332 is to preserve family harmony and obviate scandal. 47 Thus, the action provided under the said provision
simply concerns the private relations of the parties as family members and is limited to the civil aspect between the offender and the
offended party. When estafa is committed through falsification of a public document, however, the matter acquires a very serious
public dimension and goes beyond the respective rights and liabilities of family members among themselves. Effectively, when the
offender resorts to an act that breaches public interest in the integrity of public documents as a means to violate the property rights of a
family member, he is removed from the protective mantle of the absolutory cause under Article 332.

In considering whether the accused is liable for the complex crime of estafa through falsification of public documents, it would be
wrong to consider the component crimes separately from each other. While there may be two component crimes (estafa and
falsification of documents), both felonies are animated by and result from one and the same criminal intent for which there is only one
criminal liability.48 That is the concept of a complex crime. In other words, while there are two crimes, they are treated only as one,
subject to a single criminal liability.

As opposed to a simple crime where only one juridical right or interest is violated (e.g., homicide which violates the right to life, theft
which violates the right to property), 49 a complex crime constitutes a violation of diverse juridical rights or interests by means of
diverse acts, each of which is a simple crime in itself. 50 Since only a single criminal intent underlies the diverse acts, however, the
component crimes are considered as elements of a single crime, the complex crime. This is the correct interpretation of a complex
crime as treated under Article 48 of the Revised Penal Code.

In the case of a complex crime, therefore, there is a formal (or ideal) plurality of crimes where the same criminal intent results in two
or more component crimes constituting a complex crime for which there is only one criminal liability. 51 (The complex crime of estafa
through falsification of public document falls under this category.) This is different from a material (or real) plurality of crimes where
different criminal intents result in two or more crimes, for each of which the accused incurs criminal liability. 52 The latter category is
covered neither by the concept of complex crimes nor by Article 48.

Under Article 48 of the Revised Penal Code, the formal plurality of crimes (concursus delictuorum or concurso de delitos) gives rise
to a single criminal liability and requires the imposition of a single penalty:

Although [a] complex crime quantitatively consists of two or more crimes, it is only one crime in law on which a single penalty is
imposed and the two or more crimes constituting the same are more conveniently termed as component crimes. 53 (emphasis supplied)

—∞——∞——∞—

In [a] complex crime, although two or more crimes are actually committed, they constitute only one crime in the eyes of the law as
well as in the conscience of the offender. The offender has only one criminal intent. Even in the case where an offense is a necessary
means for committing the other, the evil intent of the offender is only one.54
For this reason, while a conviction for estafa through falsification of public document requires that the elements of both estafa and
falsification exist, it does not mean that the criminal liability for estafa may be determined and considered independently of that for
falsification. The two crimes of estafa and falsification of public documents are not separate crimes but component crimes of the
single complex crime of estafa and falsification of public documents.

Therefore, it would be incorrect to claim that, to be criminally liable for the complex crime of estafa through falsification of public
document, the liability for estafa should be considered separately from the liability for falsification of public document. Such approach
would disregard the nature of a complex crime and contradict the letter and spirit of Article 48 of the Revised Penal Code. It would
wrongly disregard the distinction between formal plurality and material plurality, as it improperly treats the plurality of crimes in the
complex crime of estafa through falsification of public document as a mere material plurality where the felonies are considered as
separate crimes to be punished individually.

Falsification of Public Documents May Be a Necessary Means for Committing Estafa Even Under Article 315 (3[a])

The elements of the offense of estafa punished under Article 315 (3[a]) of the Revised Penal Code are as follows:

(1) the offender induced the offended party to sign a document;

(2) deceit was employed to make the offended party sign the document;

(3) the offended party personally signed the document and

(4) prejudice is caused to the offended party.

While in estafa under Article 315(a) of the Revised Penal Code, the law does not require that the document be falsified for the
consummation thereof, it does not mean that the falsification of the document cannot be considered as a necessary means to commit
the estafa under that provision.

The phrase "necessary means" does not connote indispensable means for if it did, then the offense as a "necessary means" to commit
another would be an indispensable element of the latter and would be an ingredient thereof. 55 In People v. Salvilla,56 the phrase
"necessary means" merely signifies that one crime is committed to facilitate and insure the commission of the other. 57 In this case, the
crime of falsification of public document, the SPA, was such a "necessary means" as it was resorted to by Sato to facilitate and carry
out more effectively his evil design to swindle his mother-in-law. In particular, he used the SPA to sell the Tagaytay properties of
Manolita to unsuspecting third persons.

When the offender commits in a public document any of the acts of falsification enumerated in Article 171 of the Revised Penal Code
as a necessary means to commit another crime, like estafa, theft or malversation, the two crimes form a complex crime under Article
48 of the same Code.58 The falsification of a public, official or commercial document may be a means of committing estafa because,
before the falsified document is actually utilized to defraud another, the crime of falsification has already been consummated, damage
or intent to cause damage not being an element of the crime of falsification of a public, official or commercial document. 59 In other
words, the crime of falsification was committed prior to the consummation of the crime of estafa. 60 Actually utilizing the falsified
public, official or commercial document to defraud another is estafa. 61 The damage to another is caused by the commission of estafa,
not by the falsification of the document.621avvphi1

Applying the above principles to this case, the allegations in the Information show that the falsification of public document was
consummated when Sato presented a ready-made SPA to Manolita who signed the same as a statement of her intention in connection
with her taxes. While the falsification was consummated upon the execution of the SPA, the consummation of the estafa occurred only
when Sato later utilized the SPA. He did so particularly when he had the properties sold and thereafter pocketed the proceeds of the
sale. Damage or prejudice to Manolita was caused not by the falsification of the SPA (as no damage was yet caused to the property
rights of Manolita at the time she was made to sign the document) but by the subsequent use of the said document. That is why the
falsification of the public document was used to facilitate and ensure (that is, as a necessary means for) the commission of the estafa.

The situation would have been different if Sato, using the same inducement, had made Manolita sign a deed of sale of the properties
either in his favor or in favor of third parties. In that case, the damage would have been caused by, and at exactly the same time as, the
execution of the document, not prior thereto. Therefore, the crime committed would only have been the simple crime of estafa. 63 On
the other hand, absent any inducement (such as if Manolita herself had been the one who asked that a document pertaining to her taxes
be prepared for her signature, but what was presented to her for her signature was an SPA), the crime would have only been the simple
crime of falsification.64

WHEREFORE, the petition is hereby GRANTED. The decision dated August 9, 2007 and the resolution dated January 23, 2008 of
the Court of Appeals in CA-G.R. S.P. No. 95260 are REVERSED and SET ASIDE. The case is remanded to the trial court which is
directed to try the accused with dispatch for the complex crime of estafa through falsification of public documents.

SO ORDERED.
 19. . People v. Lua Chu, G.R. No. 34917

G.R. No. 34917           September 7, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
LUA CHU and UY SE TIENG, defendants-appellants.

Gibbs and McDonough, Gullas, Lopez and Tuaño, H. Alo and Manuel G. Briones for appellants.
Attorney-General Jaranilla for appellee.

VILLA-REAL, J.:

The defendants Lua Chu and Uy Se Tieng appeal from the judgment of the Court of First Instance of Cebu convicting them of the
illegal importation of opium, and sentencing them each to four years' imprisonment, a fine of P10,000, with subsidiary imprisonment
in case of insolvency not to exceed one-third of the principal penalty, and to pay the proportional costs.

In support of their appeal, the appellants assigned the following alleged errors as committed by the court below in its judgment to wit:

The lower court erred:

1. In refusing to compel the Hon. Secretary of Finance of the Insular Collector of Customs to exhibit in court the record of
the administrative investigation against Joaquin Natividad, collector of customs of Cebu, and Juan Samson, supervising
customs secret service agent of Cebu, both of whom have since been dismissed from service.

2. In holding it as a fact that "no doubt many times opium consignments have passed thru the customhouse without the
knowledge of the customs secret service."

3. In rejecting the defendants' theory that the said Juan Samson in denouncing the accused was actuated by a desire to protect
himself and to injure ex-collector Joaquin Natividad, his bitter enemy, who was partly instrumental in the dismissal of
Samson from the service.

4. In finding that the conduct of Juan Samson, dismissed chief customs secret service agent of Cebu, is above reproach and
utterly irreconcilable with the corrupt motives attributed to him by the accused.

5. In permitting Juan Samson, prosecution star witness, to remain in the court room while other prosecution witnesses were
testifying, despite the previous order of the court excluding the Government witnesses from the court room, and in refusing to
allow the defense to inquire from Insular Collector of Customs Aldanese regarding the official conduct of Juan Samson as
supervising customs secret service agent of Cebu.

6. In giving full credit to the testimony of said Juan Samson.

 7. In refusing to hold that Juan Samson induced the defendant Uy Se Tieng to order the opium from Hongkong.

8. In accepting Exhibits E and E-1 as the true and correct transcript of the conversation between Juan Samson and the
appellant Uy Se Tieng.

9. In accepting Exhibit F as the true and correct transcript of the conversation between Juan Samson and the appellant Lua
Chu.

10. In finding each of the appellants Uy Se Tieng and Lua Chu guilty of the crime of illegal importation of opium, and in
sentencing each to suffer four years' imprisonment and to pay a fine of P10,000 and the costs, despite the presumption of
innocence which has not been overcome, despite the unlawful inducement, despite the inherent weakness of the evidence
presented by the prosecution, emanating from a spirit of revenge and from a contaminated, polluted source.

The following are uncontradicted facts proved beyond a reasonable doubt at the trial:

About the middle of the month of November, 1929, the accused Uy Se Tieng wrote to his correspondent in Hongkong to send him a
shipment of opium.

About November 4, 1929, after the chief of the customs secret service of Cebu, Juan Samson, had returned from a vacation in Europe,
he called upon the then collector of customs for the Port of Cebu, Joaquin Natividad, at his office, and the latter, after a short
conversation, asked him how much his trip had cost him. When the chief of the secret service told him he had spent P2,500, the said
collector of customs took from a drawer in his table, the amount of P300, in paper money, and handed it to him, saying: "This is for
you, and a shipment will arrive shortly, and you will soon be able to recoup your travelling expenses." Juan Samson took the money,
left, and put it into the safe in his office to be kept until he delivered it to the provincial treasurer of Cebu. A week later, Natividad
called Samson and told him that the shipment he had referred to consisted of opium, that it was not about to arrive, and that the owner
would go to Samson's house to see him. That very night Uy Se Tieng went to Samson's house and told him he had come by order of
Natividad to talk to him about the opium. The said accused informed Samson that the opium shipment consisted of 3,000 tins, and that
he had agreed to pay Natividad P6,000 or a P2 a tin, and that the opium had been in Hongkong since the beginning of October
awaiting a ship that would go direct to Cebu.

At about 6 o'clock in the afternoon of November 22, 1929, one Nam Tai loaded on the steamship  Kolambugan, which the Naviera
Filipina — a shipping company in Cebu had had built in Hongkong, 38 cases consigned to Uy Seheng and marked "U.L.H." About
the same date Natividad informed Samson that the opium had already been put on board the steamship Kolambugan, and it was agreed
between them that Samson would receive P2,000, Natividad P2,000, and the remaining P2,000 would be distributed among certain
employees in the customhouse.

Meanwhile, Uy Se Tieng continued his interviews with Samson. Towards the end of November, Natividad informed the latter that
the Kolambugan had returned to Hongkong on account of certain engine trouble, and remained there until December 7th. In view of
this, the shipper several times attempted to unload the shipment, but he was told each time by the captain, who needed the cargo for
ballast, that the ship was about to sail, and the 30 cases remained on board.

The Kolambugan arrived at Cebu on the morning of December 14, 1929. While he was examining the manifests, Samson detailed one
of his men to watch the ship. After conferring with Natividad, the latter instructed him to do everything possible to have the cargo
unloaded, and to require Uy Se Tieng to pay over the P6,000. On the morning of November 16, 1929, Natividad told Samson that Uy
Se Tieng already had the papers ready to withdraw the cases marked "U.L.H." from the customhouse. Samson then told Natividad it
would be better for Uy Se Tieng to go to his house to have a talk with him. Uy Se Tieng went to Samson's house that night and was
told that he must pay over the P6,000 before taking the opium out of the customhouse. Uy Se Tieng showed Samson the bill of lading
and on leaving said: "I will tell the owner, and we see whether we can take the money to you tomorrow." The following day Samson
informed Colonel Francisco of the Constabulary, of all that had taken place, and the said colonel instructed the provincial commander,
Captain Buenconsejo, to discuss the capture of the opium owners with Samson. Buenconsejo and Samson agreed to meet at the latter's
house that same night. That afternoon Samson went to the office of the provincial fiscal, reported the case to the fiscal, and asked for a
stenographer to take down the conversation he would have with Uy Se Tieng that night in the presence of Captain Buenconsejo. As
the fiscal did not have a good stenographer available, Samson got one Jumapao, of the law firm of Rodriguez & Zacarias, on the
recommendation of the court stenographer. On the evening of December 17, 1929, as agreed, Captain Buenconsejo, Lieutenant
Fernando; and the stenographer went to Samson's house and concealed themselves behind a curtain made of strips of wood which
hung from the window overlooking the entrance to the house on the ground floor. As soon as the accused Uy Se Tieng arrived,
Samson asked him if he had brought the money. He replied that he had not, saying that the owner of the opium, who was Lua Chu,
was afraid of him. Samson then hold him to tell Lua Chu not to be afraid, and that he might come to Samson's house. After pointing
out to Uy Se Tieng a back door entrance into the garden, he asked him where the opium was, and Uy Se Tieng answered that it was in
the cases numbered 11 to 18, and that there were 3,252 tins. Uy Se Tieng returned at about 10 o'clock that night accompanied by his
codefendant Lua Chu, who said he was not the sole owner of the opium, but that a man from Manila, named Tan, and another in
Amoy were also owners. Samson then asked Lua Chu when he was going to get the opium, and the latter answered that Uy Se Tieng
would take charge of that. On being asked if he had brought the P6,000, Lua Chu answered, no, but promised to deliver it when the
opium was in Uy Se Tieng's warehouse. After this conversation, which was taken down in shorthand, Samson took the accused Lua
Chu aside and asked him: "I say, old fellow, why didn't you tell me about this before bringing the opium here?" Lua Chu answered:
"Impossible, sir; you were not here, you were in Spain on vacation." On being asked by Samson how he had come to bring in the
opium, Lua Chu answered: "I was in a cockpit one Sunday when the collector called me aside and said there was good business,
because opium brought a good price, and he needed money." All this conversation was overheard by Captain Buenconsejo. It was then
agreed that Uy Se Tieng should take the papers with him at 10 o'clock next morning. At the appointed hour, Uy Se Tieng and one Uy
Ay arrived at Samson's house, and as Uy Se Tieng was handing certain papers over to his companion, Uy Ay, Captain Buenconsejo,
who had been hiding, appeared and arrested the two Chinamen, taking the aforementioned papers, which consisted of bills of lading
(Exhibits B and B-1), and in invoice written in Chinese characters, and relating to the articles described in Exhibit B. After having
taken Uy Se Tieng and Uy Ay to the Constabulary headquarters, and notified the fiscal, Captain Buenconsejo and Samson went to Lua
Chu's home to search it and arrest him. In the pocket of a coat hanging on a wall, which Lua Chu said belonged to him, they found
five letters written in Chinese characters relating to the opium (Exhibits G to K). Captain Buenconsejo and Samson also took Lua Chu
to the Constabulary headquarters, and then went to the customhouse to examine the cases marked "U.L.H." In the cases marked Nos.
11 to 18, they found 3,252 opium tins hidden away in a quantity to dry fish. The value of the opium confiscated amounted to P50,000.

In the afternoon of December 18, 1929, Captain Buenconsejo approached Lua Chu and asked him to tell the truth as to who was the
owner of the opium. Lua Chu answered as follows: "Captain, it is useless to ask me any questions, for I am not going to answer to
them. The only thing I will say is that whoever the owner of this contraband may be, he is not such a fool as to bring it in here without
the knowledge of those — " pointing towards the customhouse.

The defense attempted to show that after Juan Samson had obtained a loan of P200 from Uy Se Tieng, he induced him to order the
opium from Hongkong saying that it only cost from P2 to P3 a tin there, while in Cebu it cost from P18 to P20, and that he could make
a good deal of money by bringing in a shipment of that drug; that Samson told Uy Se Tieng, furthermore, that there would be no
danger, because he and the collector of customs would protect him; that Uy Se Tieng went to see Natividad, who told him he had no
objection, if Samson agreed; that Uy Se Tieng then wrote to his correspondent in Hongkong to forward the opium; that after he had
ordered it, Samson went to Uy Se Tieng's store, in the name of Natividad, and demanded the payment of P6,000; that Uy Se Tieng
then wrote to his Hongkong correspondent cancelling the order, but the latter answered that the opium had already been loaded and the
captain of the Kolambugan refused to let him unload it; that when the opium arrived, Samson insisted upon the payment of the P6,000;
that as Uy Se Tieng did not have that amount, he went to Lua Chu on the night of December 14th, and proposed that he participate;
that at first Lua Chu was unwilling to accept Uy Se Tieng's proposition, but he finally agreed to pay P6,000 when the opium had
passed the customhouse; that Lua Chu went to Samson's house on the night of December 17th, because Samson at last agreed to
deliver the opium without first receiving the P6,000, provided Lua Chu personally promised to pay him that amount.

The appellants make ten assignments of error as committed by the trial court in its judgment. Some refer to the refusal of the trial
judge to permit the presentation of certain documentary evidence, and to the exclusion of Juan Samson, the principal witness for the
Government, from the court room during the hearing; others refer to the admission of the alleged statements of the accused taken in
shorthand; and the others to the sufficiency of the evidence of the prosecution to establish the guilt of the defendants beyond a
reasonable doubt.

With respect to the presentation of the record of the administrative proceedings against Joaquin Natividad, collector of customs of
Cebu, and Juan Samson, supervising customs secret service agent of Cebu, who were dismissed from the service, the trial court did
not err in not permitting it, for, whatever the result of those proceedings, they cannot serve to impeach the witness Juan Samson, for it
is not one of the means prescribed in section 342 of the Code of Civil Procedure to that end.

With regard to the trial judge's refusal to order the exclusion of Juan Samson, the principal witness of the Government, from the court
room during the hearing, it is within the power of said judge to do so or not, and it does not appear that he has abused his discretion
(16 Corpus Juris, 842).

Neither did the trial judge err when he admitted in evidence the transcript of stenographic notes of the defendants' statements, since
they contain admissions made by themselves, and the person who took them in shorthand attested at the trial that they were faithfully
taken down. Besides the contents are corroborated by unimpeached witnesses who heard the statements.

As to whether the probatory facts are sufficient to establish the facts alleged in the information, we find that the testimony given by the
witnesses for the prosecution should be believed, because the officers of the Constabulary and the chief of the customs secret service,
who gave it, only did their duty. Aside from this, the defendants do not deny their participation in the illegal importation of the opium,
though the accused Lua Chu pretends that he was only a guarantor to secure the payment of the gratuity which the former collector of
customs, Joaquin Natividad, had asked of him for Juan Samson and certain customs employees. This assertion, however, is
contradicted by his own statement made to Juan Samson and overheard by Captain Buenconsejo, that he was one of the owners of the
opium that had been unlawfully imported.

But the defendants' principal defense is that they were induced by Juan Samson to import the opium in question. Juan Samson denies
this, and his conduct in connection with the introduction of the prohibited drug into the port of Cebu, bears him out. A public official
who induces a person to commit a crime for purposes of gain, does not take the steps necessary to seize the instruments of the crime
and to arrest the offender, before having obtained the profit he had in mind. It is true that Juan Samson smoothed the way for the
introduction of the prohibited drug, but that was after the accused had already planned its importation and ordered said drug, leaving
only its introduction into the country through the Cebu customhouse to be managed, and he did not do so to help them carry their plan
to a successful issue, but rather to assure the seizure of the imported drug and the arrest of the smugglers.

The doctrines referring to the entrapment of offenders and instigation to commit crime, as laid down by the courts of the United States,
are summarized in 16 Corpus Juris, page 88, section 57, as follows:

ENTRAPMENT AND INSTIGATION. — While it has been said that the practice of entrapping persons into crime for the
purpose of instituting criminal prosecutions is to be deplored, and while instigation, as distinguished from mere entrapment,
has often been condemned and has sometimes been held to prevent the act from being criminal or punishable, the general rule
is that it is no defense to the perpetrator of a crime that facilitates for its commission were purposely placed in his way, or
that the criminal act was done at the "decoy solicitation" of persons seeking to expose the criminal, or that detectives feigning
complicity in the act were present and apparently assisting in its commission. Especially is this true in that class of cases
where the offense is one of a kind habitually committed, and the solicitation merely furnishes evidence of a course of
conduct. Mere deception by the detective will not shield defendant, if the offense was committed by him free from the
influence or the instigation of the detective. The fact that an agent of an owner acts as supposed confederate of a thief is no
defense to the latter in a prosecution for larceny, provided the original design was formed independently of such agent; and
where a person approached by the thief as his confederate notifies the owner or the public authorities, and, being authorized
by them to do so, assists the thief in carrying out the plan, the larceny is nevertheless committed. It is generally held that it is
no defense to a prosecution for an illegal sale of liquor that the purchase was made by a "spotter," detective, or hired
informer; but there are cases holding the contrary.
As we have seen, Juan Samson neither induced nor instigated the herein defendants-appellants to import the opium in question, as the
latter contend, but pretended to have an understanding with the collector of customs, Joaquin Natividad — who had promised them
that he would remove all the difficulties in the way of their enterprise so far as the customhouse was concerned — not to gain the
P2,000 intended for him out of the transaction, but in order the better to assure the seizure of the prohibited drug and the arrest of the
surreptitious importers. There is certainly nothing immoral in this or against the public good which should prevent the Government
from prosecuting and punishing the culprits, for this is not a case where an innocent person is induced to commit a crime merely to
prosecute him, but it simply a trap set to catch a criminal.

Wherefore, we are of opinion and so hold, that the mere fact that the chief of the customs secret service pretended to agree a plan for
smuggling illegally imported opium through the customhouse, in order the better to assure the seizure of said opium and the arrest of
its importers, is no bar to the prosecution and conviction of the latter.

By virtue whereof, finding no error in the judgment appealed from, the same is hereby affirmed, with costs against the appellants. So
ordered.

20. . People v. Doria, G.R. No. 125299

G.R. No. 125299 January 22, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FLORENCIO DORIA y BOLADO and VIOLETA GADDAO y CATAMA @ "NENETH," accused-appellants.

PUNO, J.:

On December 7, 1995, accused-appellants Florencio Doria y Bolado and Violeta Gaddao y Catama @ "Neneth" were charged with
violation of Section 4, in relation to Section 21 of the Dangerous Drugs Act of 1972. 1 The information reads:

That on or about the 5th day of December, 1995 in the City of Mandaluyong, Philippines, a place within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping and
aiding one another and without having been authorized by law, did, then and there willfully, unlawfully and
feloniously sell, administer, deliver and give away to another eleven (11) plastic bags of suspected marijuana
fruiting tops weighing 7,641.08 grams in violation of the above-cited law.

CONTRARY TO LAW.2

The prosecution contends the offense was committed as follows: In November 1995, members of the North Metropolitan District,
Philippine National Police (PNP) Narcotics Command (Narcom), received information from two (2) civilian informants (CI) that one
"Jun" was engaged in illegal drug activities in Mandaluyong City. The Narcom agents decided to entrap and arrest "Jun" in a buy-bust
operation. As arranged by one of the CI's, a meeting between the Narcom agents and "Jun" was scheduled on December 5, 1995 at E.
Jacinto Street in Mandaluyong City.

On December 5, 1995, at 6:00 in the morning, the CI went to the PNP Headquarters at EDSA, Kamuning, Quezon City to prepare for
the buy-bust operation. The Narcom agents formed Team Alpha composed of P/Insp. Nolasco Cortes as team leader and PO3 Celso
Manlangit, SPO1 Edmund Badua and four (4) other policemen as members. P/Insp. Cortes designated P03 Manlangit as the poseur-
buyer and SPO1 Badua as his back-up, and the rest of the team as perimeter security. Superintendent Pedro Alcantara, Chief of the
North Metropolitan District PNP Narcom, gave the team P2, 000. 00 to cover operational expenses. From this sum, PO3 Manlangit set
aside P1,600.00 — a one thousand peso bill and six (6) one hundred peso bills 3 — as money for the buy-bust operation. The market
price of one kilo of marijuana was then P1,600.00. P03 Manlangit marked the bills with his initials and listed their serial numbers in
the police blotter.4 The team rode in two cars and headed for the target area.

At 7:20 of the same morning, "Jun" appeared and the CI introduced PO3 Manlangit as interested in buying one (1) kilo of marijuana.
P03 Manlangit handed "Jun" the marked bills worth P1,600.00. "Jun" instructed P03 Manlangit to wait for him at the corner of Shaw
Boulevard and Jacinto Street while he got the marijuana from his associate. 5 An hour later, "Jun" appeared at the agreed place where
P03 Manlangit, the CI and the rest of the team were waiting. "Jun" took out from his bag an object wrapped in plastic and gave it to
P03 Manlangit. P03 Manlangit forthwith arrested "Jun" as SPO1 Badua rushed to help in the arrest. They frisked "Jun" but did not
find the marked bills on him. Upon inquiry, "Jun" revealed that he left the money at the house of his associate named "Neneth. 6 "Jun"
led the police team to "Neneth's" house nearby at Daang Bakal.

The team found the door of "Neneth's" house open and a woman inside. "Jun" identified the woman as his associate. 7 SPO1 Badua
asked "Neneth" about the P1,600.00 as PO3 Manlangit looked over "Neneth's" house. Standing by the door, PO3 Manlangit noticed a
carton box under the dining table. He saw that one of the box's flaps was open and inside the box was something wrapped in plastic.
The plastic wrapper and its contents appeared similar to the marijuana earlier "sold" to him by "Jun." His suspicion aroused, PO3
Manlangit entered "Neneth's" house and took hold of the box. He peeked inside the box and found that it contained ten (10) bricks of
what appeared to be dried marijuana leaves.

Simultaneous with the box's discovery, SPO1 Badua recovered the marked bills from "Neneth." 8 The policemen arrested "Neneth."
They took "Neneth" and "Jun," together with the box, its contents and the marked bills and turned them over to the investigator at
headquarters. It was only then that the police learned that "Jun" is Florencio Doria y Bolado while "Neneth" is Violeta Gaddao y
Catama. The one (1) brick of dried marijuana leaves recovered from "Jun" plus the ten (10) bricks recovered from "Neneth's" house
were examined at the PNP Crime Laboratory. 9 The bricks, eleven (11) in all, were found to be dried marijuana fruiting tops of various
weights totalling 7,641.08 grams. 10

The prosecution story was denied by accused-appellants Florencio Doria and Violeta Gaddao. Florencio Doria, a 33-year old
carpenter, testified that on December 5, 1995, at 7:00 in the morning, he was at the gate of his house reading a tabloid newspaper. Two
men appeared and asked him if he knew a certain "Totoy." There were many "Totoys" in their area and as the men questioning him
were strangers, accused-appellant denied knowing any "Totoy." The men took accused-appellant inside his house and accused him of
being a pusher in their community. When accused-appellant denied the charge, the men led him to their car outside and ordered him to
point out the house of "Totoy." For five (5) minutes, accused-appellant stayed in the car. Thereafter, he gave in and took them to
"Totoy's" house.

Doria knocked on the door of "Totoy's" house but no one answered. One of the men, later identified as P03 Manlangit, pushed open
the door and he and his companions entered and looked around the house for about three minutes. Accused-appellant Doria was left
standing at the door. The policemen came out of the house and they saw Violeta Gaddao carrying water from the well. He asked
Violeta where "Totoy" was but she replied he was not there. Curious onlookers and kibitzers were, by that time, surrounding them.
When Violeta entered her house, three men were already inside. Accused-appellant Doria, then still at the door, overheard one of the
men say that they found a carton box. Turning towards them, Doria saw box on top of the table. The box was open and had something
inside. P03 Manlangit ordered him and Violeta to go outside the house and board the car. They were brought to police headquarters
where they were investigated.

Accused-appellant Doria further declared that his co-accused, Violeta Gaddao, is the wife of his acquaintance, Totoy Gaddao. He said
that he and Totoy Gaddao sometimes drank together at the neighborhood store. This closeness, however, did not extend to Violeta,
Totoy's wife.11

Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed that on December 5, 1995, she was at her house at Daang
Bakal, Mandaluyong City where she lived with her husband and five (5) children, namely, Arvy, aged 10, Arjay, aged 8, the twins
Raymond and Raynan, aged 5, and Jason, aged 3. That day, accused-appellant woke up at 5:30 in the morning and bought pan de sal
for her children's breakfast. Her husband, Totoy, a housepainter, had left for Pangasinan five days earlier. She woke her children and
bathed them. Her eldest son, Arvy, left for school at 6:45 A.M. Ten minutes later, she carried her youngest son, Jayson, and
accompanied Arjay to school. She left the twins at home leaving the door open. After seeing Arjay off, she and Jayson remained
standing in front of the school soaking in the sun for about thirty minutes. Then they headed for home. Along the way, they passed the
artesian well to fetch water. She was pumping water when a man clad in short pants and denim jacket suddenly appeared and grabbed
her left wrist. The man pulled her and took her to her house. She found out later that the man was P03 Manlangit.

Inside her house were her co-accused Doria and three (3) other persons. They asked her about a box on top of the table. This was the
first time she saw the box. The box was closed and tied with a piece of green straw. The men opened the box and showed her its
contents. She said she did not know anything about the box and its contents.

Accused-appellant Violeta Gaddao confirmed that her co-accused Florencio Doria was a friend of her husband, and that her husband
never returned to their house after he left for Pangasinan. She denied the charge against her and Doria and the allegation that marked
bills were found in her person.12

After trial, the Regional Trial Court, Branch 156, Pasig City convicted the accused-appellants. The trial court found the existence of an
"organized/syndicated crime group" and sentenced both accused-appellants to death and pay a fine of P500,000.00 each. The
dispositive portion of the decision reads as follows:

WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y
CATAMA @ "Neneth" having been established beyond reasonable doubt, they are both
CONVICTED of the present charge against them.

According to the amendatory provisions of Sec. 13 of Republic Act No. 7659 which cover violations of Sec. 4 of
Republic Act No. 6425 and which was exhaustively discussed in People v. Simon, 234 SCRA 555, the penalty
imposable in this case is reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten
million pesos. Taking into consideration, however, the provisions of Sec. 23, also of Republic Act No. 7659 which
explicitly state that:

The maximum penalty shall be imposed if the offense was committed by any person who belongs
to an organized/syndicated crime group.
 An organized/syndicated crime group means a group of two or more persons collaborating,
confederating or mutually helping one another for purposes of gain in the commission of any
crime.

the Court is hereby constrained to sentence (hereby sentences) said FLORENCIO DORIA y BOLADO @ "Jun" and
VIOLETA GADDAO y CATAMA @ "Neneth" to DEATH and to pay a fine of Five Hundred Thousand Pesos
(P500,000.00) each without subsidiary imprisonment in case of insolvency and to pay the costs.

The confiscated marijuana bricks (7,641.08 grams) shall be turned over to the Dangerous Drugs Board, NBI for
destruction in accordance with law.

Let a Commitment Order be issued for the transfer of accused DORIA from the Mandaluyong City Jail to the New
Bilibid Prisons, Muntinlupa City and also for accused GADDAO for her transfer to the Correctional Institute for
Women, Mandaluyong City.

Let the entire records of this case be forwarded immediately to the Supreme Court for mandatory review.

SO ORDERED. 13

Before this Court, accused-appellant Doria assigns two errors, thus:

THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO THE TESTIMONY OF THE WITNESSES
FOR THE PROSECUTION WHEN THEIR TESTIMONIES WERE SHOT WITH DISCREPANCIES,
INCONSISTENCIES AND THAT THE CORPUS DELICTI OF THE MARIJUANA ALLEGEDLY TAKEN
FROM APPELLANT WAS NOT POSITIVELY IDENTIFIED BY THE POSEUR-BUYER.

II

THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE THE MARIJUANA FRUITINGS

FOUND INSIDE THE CARTON BOX AS THESE WERE OBTAINED THROUGH A WARRANTLESS
SEARCH AND DOES NOT COME WITHIN THE PLAIN VIEW DOCTRINE. 14

Accused-appellant Violeta Gaddao contends:

THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY DESPITE THE INCREDIBILITY OF THE
POLICE VERSION OF THE MANNER THE ALLEGED BUY-BUST WAS CONDUCTED.

II

THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST MONEY CAME FROM ARE
INCONSISTENT WITH ONE ANOTHER AND ALSO REEKS WITH INCREDIBILITY.

III

THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY AND SENTENCING HER TO DEATH
DESPITE THE MANIFESTLY IRRECONCILABLE INCONSISTENCIES IN THE VERSIONS OF THE POLICE
AS TO HOW AND BY WHOM THE ALLEGED BUY-BUST MONEY WAS RECOVERED FROM HER,
WHICH IN CONSEQUENCE RESULTS IN THE EVIDENCE, OF RETRIEVAL FROM HER OF THE SAME,
NEBULOUS, AT BEST, NIL, AT WORST.

IV

THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF THE WARRANTLESS SEARCH
LEADING TO THE SEIZURE OF THE MARIJUANA ALLEGEDLY FOUND INSIDE THE HOUSE OF
ACCUSED-APPELLANT. 15

The assigned errors involve two principal issues: (1) the validity of the buy-bust operation in the apprehension of accused-appellant
Doria; and (2) the validity of the warrantless arrest of accused-appellant Gaddao, the search of her person and house, and the
admissibility of the pieces of evidence obtained therefrom.

Accused-appellants were caught by the police in a buy-bust operation. A buy-bust operation is a form of entrapment employed by
peace officers as an effective way of apprehending a criminal in the act of the commission of an offense. 16 Entrapment has received
judicial sanction when undertaken with due regard to constitutional and legal safeguards. 17

Entrapment was unknown in common law. It is a judicially created twentieth-century American doctrine that evolved from the
increasing use of informers and undercover agents in the detection of crimes, particularly liquor and narcotics offenses. 18 Entrapment
sprouted from the doctrine of estoppel and the public interest in the formulation and application of decent standards in the enforcement
of criminal law.19 It also took off from a spontaneous moral revulsion against using the powers of government to beguile innocent but
ductile persons into lapses that they might otherwise resist.20

In the American jurisdiction, the term "entrapment" has a generally negative meaning because it is understood as the inducement of
one to commit a crime not contemplated by him, for the mere purpose of instituting a criminal prosecution against him. 21 The classic
definition of entrapment is that articulated by Justice Roberts in Sorrells v. United States,22 the first Supreme Court decision to
acknowledge the concept: "Entrapment is the conception and planning of an offense by an officer, and his procurement of its
commission by one who would not have perpetrated it except for the trickery, percuasion or fraud of the officers." 23 It consists of two
(2) elements: (a) acts of percuasion, trickery, or fraud carried out by law enforcement officers or the agents to induce a defendant to
commit a crime; and (b) the origin of the criminal design in the minds of the government officials rather than that of the innocent
defendant, such that the crime is the product of the creative activity of the law enforcement officer. 24

It is recognized that in every arrest, there is a certain amount of entrapment used to outwit the persons violating or about to violate the
law. Not every deception is forbidden. The type of entrapment the law forbids is the inducing of another to violate the law, the
"seduction" of an otherwise innocent person into a criminal career. 25 Where the criminal intent originates criminal in the mind of the
entrapping person and the accused is lured into the commission of the offense charged in order to prosecute him, there is entrapment
and no conviction may be had.26 Where, however, the criminal intent originates in the mind of the accused and the criminal offense is
completed, the fact that a person acting as a decoy for the state, or public officials furnished the accused an opportunity for
commission of the offense, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to
prosecute him, there is no entrapment and the accused must be convicted. 27 The law tolerates the use of decoys and other artifices to
catch a criminal.

Entrapment is recognized as a valid defense28 that can be raised by an accused and partakes of the nature of a confession and
avoidance.29 It is a positive defense. Initially, an accused has the burden of providing sufficient evidence that the government induced
him to commit the offense. Once established, the burden shifts to the governmet to show otherwise. 30 When entrapment is raised as a
defense, American federal courts and a majority of state courts use the "subjective" or "origin of intent" test laid down in  Sorrells v.
United States  31 to determine whether entrapment actually occurred. The focus of the inquiry is on the accused's predisposition to
commit the offense charged, his state of mind and inclination before his initial exposure to government agents.  32 All relevant facts
such as the accused's mental and character traits, his past offenses, activities, his eagerness in committing the crime, his reputation,
etc., are considered to assess his state of mind before the crime. 33 The predisposition test emphasizes the accused's propensity to
commit the offense rather than the officer's misconduct 34 and reflects an attempt to draw a line between a "trap for the unwary
innocent and the trap for the unwary criminal." 35 If the accused was found to have been ready and willing to commit the offense at any
favorable opportunity, the entrapment defense will fail even if a police agent used an unduly persuasive inducement. 36 Some states,
however, have adopted the "objective" test. 37 This test was first authoritatively laid down in the case of Grossman v.
State 38 rendered by the Supreme Court of Alaska. Several other states have subsequently adopted the test by judicial pronouncement
or legislation. Here, the court considers the nature of the police activity involved and the propriety of police conduct. 39 The inquiry is
focused on the inducements used by government agents, on police conduct, not on the accused and his predisposition to commit the
crime. For the goal of the defense is to deter unlawful police conduct. 40 The test of entrapment is whether the conduct of the law
enforcement agent was likely to induce a normally law-abiding person, other than one who is ready and willing, to commit the
offense;41 for purposes of this test, it is presumed that a law-abiding person would normally resist the temptation to commit a crime
that is presented by the simple opportunity to act unlawfully. 42 Official conduct that merely offers such an opportunity is permissible,
but overbearing conduct, such as badgering, cajoling or importuning, 43 or appeals to sentiments such as pity, sympathy, friendship or
pleas of desperate illness, are not.44 Proponents of this test believe that courts must refuse to convict an entrapped accused not because
his conduct falls outside the legal norm but rather because, even if his guilt has been established, the methods employed on behalf of
the government to bring about the crime "cannot be countenanced." To some extent, this reflects the notion that the courts should not
become tainted by condoning law enforcement improprieties. 45 Hence, the transactions leading up to the offense, the interaction
between the accused and law enforcement officer and the accused's response to the officer's inducements, the gravity of the crime, and
the difficulty of detecting instances of its commission are considered in judging what the effect of the officer's conduct would on a
normal person.46

Both the "subjective" and "objective" approaches have been criticized and objected to. It is claimed that the "subjective" test creates an
"anything goes" rule, i.e, if the court determines that an accused was predisposed to commit the crime charged, no level of police
deceit, badgering or other unsavory practices will be deemed impermissible. 47 Delving into the accused's character and predisposition
obscures the more important task of judging police behavior and prejudices the accused more generally. It ignores the possibility that
no matter what his past crimes and general disposition were, the accused might not have committed the particular crime unless
confronted with inordinate inducements.48 On the other extreme, the purely "objective" test eliminates entirely the need for
considering a particular accused's predisposition. His predisposition, at least if known by the police, may have an important bearing
upon the question of whether the conduct of the police and and their agents was proper.  49 The undisputed fact that the accused was a
dangerous and chronic offender or that he was a shrewd and active member of a criminal syndicate at the time of his arrest is relegated
to irrelevancy.50

Objections to the two tests gave birth to hybrid approaches to entrapment. Some states in the United States now combine both the
"subjective" and "objective"51 In Cruz v. State,52 the Florida Supreme Court declared that the permissibility of police conduct must first
be determined. If this objective test is satisfied, then the analysis turns to whether the accused was predisposed to commit the
crime.53 In Baca v. State,54 the New Mexico Supreme Court modified the state's entrapment analysis by holding that "a criminal
defendant may successfully assert a defense of entrapment, either by showing lack of predisposition to commit the crime for which he
is charged, or, that the police exceeded the standards of proper investigation. 55 The hybrid approaches combine and apply the
"objective" and "subjective" tests alternatively or concurrently.

As early as 1910, this Court has examined the conduct of law enforcers while apprehending the accused caught in flagrante delicto.
In United States v. Phelps,56 we acquitted the accused from the offense of smoking opium after finding that the government employee,
a BIR personnel, actually induced him to commit the crime in order to prosecute him. Smith, the BIR agent, testified that Phelps'
apprehension came after he overheard Phelps in a saloon say that he liked smoking opium on some occasions. Smith's testimony was
disregarded. We accorded significance to the fact that it was Smith who went to the accused three times to convince him to look for an
opium den where both of them could smoke this drug. 57 The conduct of the BIR agent was condemned as "most
reprehensible."58 In People v. Abella,59 we acquitted the accused of the crime of selling explosives after examining the testimony of the
apprehending police officer who pretended to be a merchant. The police officer offered "a tempting price, . . . a very high one" causing
the accused to sell the explosives. We found that there was inducement, "direct, persistent and effective" by the police officer and that
outside of his testimony, there was no evidence sufficient to convict the accused. 60 In People v. Lua Chu and Uy Se Tieng, 61 we
convicted the accused after finding that there was no inducement on the part of the law enforcement officer. We stated that the
Customs secret serviceman smoothed the way for the introduction of opium from Hongkong to Cebu after the accused had already
planned its importation and ordered said drug. We ruled that the apprehending officer did not induce the accused to import opium but
merely entrapped him by pretending to have an understanding with the Collector of Customs of Cebu to better assure the seizure of the
prohibited drug and the arrest of the surreptitious importers.62

It was also in the same case of People v. Lua Chu and Uy Se Tieng 63 we first laid down the distinction between entrapment vis-a-
vis instigation or inducement. Quoting 16 Corpus Juris,64 we held:

ENTRAPMENT AND INSTIGATION. — While it has been said that the practice of entrapping persons into crime
for the purpose of instituting criminal prosecutions is to be deplored, and while instigation, as distinguished from
mere entrapment, has often been condemned and has sometimes been held to prevent the act from being criminal or
punishable, the general rule is that it is no defense to the perpetrator of a crime that facilities for its commission were
purposely placed in his way, or that the criminal act was done at the 'decoy solicitation' of persons seeking to expose
the criminal, or that detectives feigning complicity in the act were present and apparently assisting in its
commission. Especially is this true in that class of cases where the offense is one of a kind habitually committed,
and the solicitation merely furnishes evidence of a course of conduct. Mere deception by the detective will not shield
defendant, if the offense was committed by him, free from the influence or instigation of the detective. The fact that
an agent of an owner acts as a supposed confederate of a thief is no defense to the latter in a prosecution for larceny,
provided the original design was formed independently of such agent; and where a person approached by the thief as
his confederate notifies the owner or the public authorities, and, being authorised by them to do so, assists the thief
in carrying out the plan, the larceny is nevertheless committed. It is generally held that it is no defense to a
prosecution for an illegal sale of liquor that the purchase was made by a "spotter," detective, or hired informer; but
there are cases holding the contrary. 65

The distinction above-quoted was reiterated in two (2) decisions of the Court of Appeals. In People v. Galicia,66 the appellate court
declared that "there is a wide difference between entrapment and instigation." The instigator practically induces the would-be accused
into the commission of the offense and himself becomes a co-principal. In entrapment, ways and means are resorted to by the peace
officer for the purpose of trapping and capturing the lawbreaker in the execution of his criminal plan. 67 In People v. Tan Tiong,68 the
Court of Appeals further declared that "entrapment is no bar to the prosecution and conviction of the lawbreaker. 69

The pronouncement of the Court of Appeals in People v. Galicia was affirmed by this Court in People v. Tiu Ua.70 Entrapment, we
further held, is not contrary to public policy. It is instigation that is deemed contrary to public policy and illegal. 71

It can thus be seen that the concept of entrapment in the American jurisdiction is similar to instigation or inducement in Philippine
jurisprudence. Entrapment in the Philippines is not a defense available to the accused. It is instigation that is a defense and is
considered an absolutory cause.72 To determine whether there is a entrapment or instigation, our courts have mainly examined the
conduct of the apprehending officers, not the predisposition of the accused to commit the crime. The "objective" test first applied
in United States v. Phelps has been followed in a series of similar cases. 73 Nevertheless, adopting the "objective" approach has not
precluded us from likewise applying the "subjective" test. In People v. Boholst,74 we applied both tests by examining the conduct of
the police officers in a buy-bust operation and admitting evidence of the accused's membership with the notorious and dreaded Sigue-
Sigue Sputnik Gang. We also considered accused's previous his convictions of other crimes 75 and held that his opprobrious past and
membership with the dreaded gang strengthened the state's evidence against him. Conversely, the evidence that the accused did not
sell or smoke marijuana and did not have any criminal record was likewise admitted in People v. Yutuc 76 thereby sustaining his
defense that led to his acquittal.

The distinction between entrapment and instigation has proven to be very material in anti-narcotics operations. In recent years, it has
become common practice for law enforcement officers and agents to engage in buy-bust operations and other entrapment procedures
in apprehending drug offenders. Anti-narcotics laws, like anti-gambling laws are regulatory statutes. 77 They are rules of convenience
designed to secure a more orderly regulation of the affairs of society, and their violation gives rise to crimes  mala prohibita.78 They
are not the traditional type of criminal law such as the law of murder, rape, theft, arson, etc. that deal with crimes  mala in se or those
inherently wrongful and immoral. 79 Laws defining crimes mala prohibita condemn behavior directed, not against particular
individuals, but against public order. 80 Violation is deemed a wrong against society as a whole and is generally unattended with any
particular harm to a definite person. 81 These offenses are carried on in secret and the violators resort to many devices and subterfuges
to avoid detection. It is rare for any member of the public, no matter how furiously he condemns acts mala prohibita, to be willing to
assist in the enforcement of the law. It is necessary, therefore, that government in detecting and punishing violations of these laws,
rely, not upon the voluntary action of aggrieved individuals, but upon the diligence of its own officials. This means that the police
must be present at the time the offenses are committed either in an undercover capacity or through informants, spies or stool pigeons. 82

Though considered essential by the police in enforcing vice legislation, the confidential informant system breeds abominable abuse.
Frequently, a person who accepts payment from the police in the apprehension of drug peddlers and gamblers also accept payment
from these persons who deceive the police. The informant himself maybe a drug addict, pickpocket, pimp, or other petty criminal. For
whatever noble purpose it serves, the spectacle that government is secretly mated with the underworld and uses underworld characters
to help maintain law and order is not an inspiring one. 83 Equally odious is the bitter reality of dealing with unscrupulous, corrupt and
exploitative law enforcers. Like the informant, unscrupulous law enforcers' motivations are legion — harassment, extortion,
vengeance, blackmail, or a desire to report an accomplishment to their superiors. This Court has taken judicial notice of this ugly
reality in a number of cases 84 where we observed that it is a common modus operandi of corrupt law enforcers to prey on weak and
hapless persons, particularly unsuspecting provincial hicks. 85 The use of shady underworld characters as informants, the relative ease
with which illegal drugs may be planted in the hands or property of trusting and ignorant persons, and the imposed secrecy that
inevitably shrouds all drug deals have compelled this Court to be extra-vigilant in deciding drug cases. 86 Criminal activity is such that
stealth and strategy, although necessary weapons in the arsenal of the police officer, become as objectionable police methods as the
coerced confession and the unlawful search. As well put by the Supreme Court of California in People v. Barraza,87

[E]ntrapment is a facet of a broader problem. Along with illegal search and seizures, wiretapping, false arrest, illegal
detention and the third degree, it is a type of lawless enforcement. They all spring from common motivations. Each
is a substitute for skillful and scientific investigation. Each is condoned by the sinister sophism that the end, when
dealing with known criminals of the 'criminal class,' justifies the employment of illegal means. 88

It is thus imperative that the presumption, juris tantum, of regularity in the performance of official duty by law enforcement agents
raised by the Solicitor General be applied with studied restraint. This presumption should not by itself prevail over the presumption of
innocence and the constitutionally-protected rights of the individual.89 It is the duty of courts to preserve the purity of their own temple
from the prostitution of the criminal law through lawless enforcement. 90 Courts should not allow themselves to be used as an
instrument of abuse and injustice lest an innocent person be made to suffer the unusually severe penalties for drug offenses. 91

We therefore stress that the "objective" test in buy-bust operations demands that the details of the purported transaction must be
clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase,
the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the
sale.92 The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the
payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the
subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must
be caught but not at all cost. At the same time, however, examining the conduct of the police should not disable courts into ignoring
the accused's predisposition to commit the crime. If there is overwhelming evidence of habitual delinquency, recidivism or plain
criminal proclivity, then this must also be considered. Courts should look at all factors to determine the predisposition of an accused to
commit an offense in so far as they are relevant to determine the validity of the defense of inducement.1âwphi1.nêt

In the case at bar, the evidence shows that it was the confidential informant who initially contacted accused-appellant Doria. At the
pre-arranged meeting, the informant was accompanied by PO3 Manlangit who posed as the buyer of marijuana. P03 Manlangit handed
the marked money to accused-appellant Doria as advance payment for one (1) kilo of marijuana. Accused-appellant Doria was
apprehended when he later returned and handed the brick of marijuana to P03 Manlangit.

PO3 Manlangit testified in a frank, spontaneous, straightforward and categorical manner and his credibility was not crumpled on
cross-examination by defense counsel. Moreover, P03 Manlangit's testimony was corroborated on its material points by SPO1 Badua,
his back-up security. The non-presentation of the confidential informant is not fatal to the prosecution. Informants are usually not
presented in court because of the need to hide their identity and preserve their invaluable service to the police. 93 It is well-settled that
except when the appellant vehemently denies selling prohibited drugs and there are material inconsistencies in the testimonies of the
arresting officers,94 or there are reasons to believe that the arresting officers had motives to testify falsely against the appellant, 95 or
that only the informant was the poseur-buyer who actually witnessed the entire transaction, 96 the testimony of the informant may be
dispensed with as it will merely be corroborative of the apprehending officers' eyewitness testimonies. 97 There is no need to present
the informant in court where the sale was actually witnessed and adequately proved by prosecution witnesses. 98

The inconsistencies in P03 Manlangit's and SPO1 Badua's testimonies and the other police officers' testimonies are minor and do not
detract from the veracity and weight of the prosecution evidence. The source of the money for the buy-bust operation is not a critical
fact in the case at bar. It is enough that the prosecution proved that money was paid to accused-appellant Doria in consideration of
which he sold and delivered the marijuana.

Contrary to accused-appellant Doria's claim, the one kilo of marijuana "sold" by him to PO3 Manlangit was actually identified by PO3
Manlangit himself before the trial court. After appellants' apprehension, the Narcom agents placed this one (1) brick of marijuana
recovered from appellant Doria inside the carton box lumping it together with the ten (10) bricks inside. This is why the carton box
contained eleven (11) bricks of marijuana when brought before the trial court. The one (1) brick recovered from appellant Doria and
each of the ten (10) bricks, however, were identified and marked in court. Thus:

ATTY. ARIAS, Counsel for Florencio Doria:

Mr. Police Officer, when you identified that box,. Tell the court, how were you able to identify
that box?

A This is the box that I brought to the crime laboratory which contained the eleven pieces of
marijuana brick we confiscated from the suspect, sir.

Q Please open it and show those eleven bricks.

PROSECUTOR Witness bringing out from the said box. . .

ATTY. VALDEZ, Counsel for Violeta Gaddao:

Your Honor, I must protest the line of questioning considering the fact that we are now dealing
with eleven items when the question posed to the witness was what was handed to him by Jun?

COURT So be it.

ATTY. ARIAS May we make it of record that the witness is pulling out them after item from the
box showed to him and brought in front of him.
COURT Noted.

Q Now tell the court, how did you know that those are the eleven bricks?

x x x           x x x          x x x

A I have markings on these eleven bricks, sir.

Q Point to the court, where are those markings?

A Here, sir, my signature, my initials with the date, sir.

PROSECUTOR Witness showed a white wrapper and pointing to CLM and the signature.

Q Whose signature is that?

ATTY. VALDEZ Your Honor, may we just limit the inquiry to the basic question of the fiscal as
to what was handed to him by the accused Jun, your Honor?

PROSECUTOR Your Honor, there is already a ruling by this Honorable Court, your Honor,
despite reconsideration.

COURT Let the prosecution do its own thing and leave the appreciation of what it has done to the
court.

ATTY. VALDEZ We submit, your Honor.

A This brick is the one that was handed to me by the suspect Jun, sir.

COURT Why do you know that that is the thing? Are you sure that is not "tikoy?"

A Yes, your Honor.

Q What makes you so sure?

A I am sure that this is the one, your Honor. This is the Exhibit "A" which I marked before I
brought it to the PCCL, your Honor.

Q What are you sure of?

A I am sure that this is the brick that was given to me by one alias Jun, sir.

Q What makes you so sure?

A Because I marked it with my own initials before giving it to the investigator and before we
brought it to the PCCL, your Honor.

x x x           x x x          x x x

PROSECUTOR May we request that a tag be placed on this white plastic bag and this be marked
as Exhibit "D?"

COURT Mark it as Exhibit "D."

Q To stress, who made the entries of this date, Exhibit "A" then the other letters and figures on
this plastic?

A This one, the signature, I made the signature, the date and the time and this Exhibit "A."

Q How about this one?

A I don't know who made this marking, sir.

PROSECUTOR May it be of record that this was just entered this morning.

Q I am asking you about this "itim" and not the "asul."

A This CLM, the date and the time and the Exhibit "A," I was the one who made these markings,
sir.
 PROSECUTOR May we place on record that the one that was enclosed. . .

ATTY. ARIAS Your Honor, there are also entries included in that enclosure where it appears D-
394-95 also Exhibit "A," etc. etc., that was not pointed to by the witness. I want to make it of
record that there are other entries included in the enclosure.

COURT Noted. The court saw it.

Q Now, and this alleged brick of marijuana with a piece of paper, with a newspaper wrapping with
a piece of paper inside which reads: "D-394-95, Exhibit A, 970 grams SSL" be marked as our
Exhibit "D-2?"

COURT Tag it. Mark it.

Q This particular exhibit that you identified, the wrapper and the contents was given to you by
whom?

A It was given to me by suspect Jun, sir.

Q Whereat?

A At the corner of Boulevard and Jacinto St., sir.

Q How about the other items that you were able to recover?

x x x           x x x          x x x

A These other marijuana bricks, because during our follow-up, because according to Jun the
money which I gave him was in the hands of Neneth and so we proceeded to the house of Neneth,
sir.

xxx xxx xxx 99

The first brick identified by P03 Manlangit was the brick of marijuana "given to [him] by suspect Jun" at the corner of Boulevard and
Jacinto Streets. This brick, including the newspaper and white plastic wrapping were marked as Exhibits "D," "D-l," and "D-2" and
described as weighing nine hundred seventy (970) grams. 100

We also reject appellant's submission that the fact that P03 Manlangit and his team waited for almost one hour for appellant Doria to
give them the one kilo of marijuana after he "paid" P1,600.00 strains credulity. Appellant cannot capitalize on the circumstance that
the money and the marijuana in the case at bar did not change hands under the usual "kaliwaan" system. There is no rule of law which
requires that in "buy-bust" operations there must be a simultaneous exchange of the marked money and the prohibited drug between
the poseur- buyer and the pusher. 101 Again, the decisive fact is that the poseur-buyer received the marijuana from the accused-
appellant. 102

We also hold that the warrantless arrest of accused-appellant Doria is not unlawful. Warrantless arrests are allowed in three instances
as provided by Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure, to wit:

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 personal knowledge of facts indicating that the
person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who 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.

xxx xxx xxx 103

Under Section 5 (a), as above-quoted, a person may be arrested without a warrant if he "has committed, is actually
committing, or is attempting to commit an offense." Appellant Doria was caught in the act of committing an offense. When
an accused is apprehended in flagrante delicto as a result of a buy-bust operation, the police are not only authorized but duty-
bound to arrest him even without a warrant. 104

The warrantless arrest of appellant Gaddao, the search of her person and residence, and the seizure of the box of marijuana and
marked bills are different matters.
Our Constitution proscribes search and seizure without a judicial warrant and any evidence obtained without such warrant is
inadmissible for any purpose in any proceeding. 105 The rule is, however, not absolute. Search and seizure may be made without a
warrant and the evidence obtained therefrom may be admissible in the following instances: 106 (1) search incident to a lawful
arrest;107 (2) search of a moving motor vehicle; 108 (3) search in violation of customs laws; 109 (4) seizure of evidence in plain
view; 110 (5) when the accused himself waives his right against unreasonable searches and seizures. 111

The prosecution admits that appellant Gaddao was arrested without a warrant of arrest and the search and seizure of the box of
marijuana and the marked bills were likewise made without a search warrant. It is claimed, however, that the warrants were not
necessary because the arrest was made in "hot pursuit" and the search was an incident to her lawful arrest.

To be lawful, the warrantless arrest of appellant Gaddao must fall under any of the three (3) instances enumerated in Section 5 of Rule
113 of the 1985 Rules on Criminal Procedure as aforequoted. The direct testimony of PO3 Manlangit, the arresting officer, however
shows otherwise:

ATTY. VALDEZ, Counsel for appellant Gaddao:

We submit at this juncture, your Honor, that there will be no basis for that question.

Q This particular exhibit that you identified, the wrapper and the contents was given to you by
whom?

A It was given to me by suspect Jun, sir.

Q Whereat?

A At the corner of Boulevard and Jacinto Street, sir.

Q How about, the other items that you were able to recover?

ATTY. VALDEZ: We submit at this juncture, your Honor, that there will be no basis for that
question.

COURT There is. Answer.

A These other marijuana bricks, because during our follow-up, because according to Jun the
money which I gave him was in the hands of Neneth and so we proceeded to the house of Neneth,
sir.

Q Whereat?

A At Daang Bakal near the crime scene at Shaw Boulevard, sir.

Q And what happened upon arrival thereat?

A We saw alias Neneth inside the house and we asked him to give us the buy-bust money, sir.

Q You mentioned "him?"

A Her, sir. We asked her to give us the money, the marked money which Jun gave her, sir.

Q And what happened?

A At this instance, it was SPO1 Badua who can testify regarding this buy-bust money, sir.

xxx xxx xxx 112

SPO1 Badua testified on cross-examination that:

Q What was your intention in going to the house of Aling Neneth?

A To arrest her, sir.

Q But the fact is, Mr. Witness, when you reached the house of Aling Neneth, Aling Neneth was
there?

A Yes, sir.

Q As far as you can see, she was just inside her house?

A I saw her outside, sir.

Q She was fetching water as a matter of fact?

A She was 'sa bandang poso.'

Q Carrying a baby?

A No, sir.

Q At that particular time when you reached the house of Aling Neneth and saw her outside the
house, she was not committing any crime, she was just outside the house?

A No, sir.

Q She was not about to commit any crime because she was just outside the house doing her daily
chores. Am I correct?

A I just saw her outside, sir.

Q And at that point in time you already wanted to arrest her. That is correct, is it not?

A Yes, sir.

Q Now, if any memory of your testimony is correct, according to you SPO1 Manlangit
approached her?

A PO3 Manlangit, sir.

Q You did not approach her because P03 Manlangit approached her?

A Yes, sir.

Q During all the time that this confrontation, arrest or whatever by SPO3 Manlangit was taking
place, you were just in the side lines?

A I was just watching, sir.

Q So you were just an on-looker to what Manlangit was doing, because precisely according to you
your role in this buy-bust operation was as a back-up?

A Yes, sir.

Q Who got the alleged marijuana from inside the house of Mrs. Neneth?

A P03 Manlangit, sir.

Q Manlangit got the marijuana?

A Yes, sir.

Q And the money from Aling Neneth?

A I don't know, sir.

Q You did not even know who got the money from Aling Neneth?

PROSECUTOR:

There is no basis for this question, your Honor. Money, there 's no testimony on that.

ATTY. VALDEZ:

I was asking him precisely.

PROSECUTOR:

No basis.

COURT:

Sustained.
 Q Alright. I will ask you a question and I expect an honest answer. According to the records, the
amount of P1,600.00 was recovered from the person of Aling Neneth. That's right?

A Yes, sir, the buy-bust money.

Q What you are now saying for certain and for the record is the fact that you were not the one who
retrieved the money from Aling Neneth, it was Manlangit maybe?

A I saw it, sir.

Q It was Manlangit who got the money from Aling Neneth?

A The buy-bust money was recovered from the house of Aling Neneth, sir.

Q It was taken from the house of Aling Neneth, not from the person of Aling Neneth. Is that what
you are trying to tell the Court?

A No, sir.

ATTY. VALDEZ:

I am through with this witness, your Honor. 113

Accused-appellant Gaddao was not caught red-handed during the buy-bust operation to give ground for her arrest under Section 5 (a)
of Rule 113. She was not committing any crime. Contrary to the finding of the trial court, there was no occasion at all for appellant
Gaddao to flee from the policemen to justify her arrest in "hot pursuit." 114 In fact, she was going about her daily chores when the
policemen pounced on her.

Neither could the arrest of appellant Gaddao be justified under the second instance of Rule 113. "Personal knowledge" of facts in
arrests without warrant under Section 5 (b) of Rule 113 must be based upon "probable cause" which means an "actual belief or
reasonable grounds of suspicion."115 The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting
officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based an actual facts,  i.e.,
supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. 116 A
reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making
the arrest.117

Accused-appellant Gaddao was arrested solely on the basis of the alleged identification made by her co-accused. PO3 Manlangit,
however, declared in his direct examination that appellant Doria named his co-accused in response to his (PO3 Manlangit's) query as
to where the marked money was. 118 Appellant Doria did not point to appellant Gaddao as his associate in the drug business, but as the
person with whom he left the marked bills. This identification does not necessarily lead to the conclusion that appellant Gaddao
conspired with her co-accused in pushing drugs. Appellant Doria may have left the money in her house, 119 with or without her
knowledge, with or without any conspiracy. Save for accused-appellant Doria 's word, the Narcom agents had no reasonable grounds
to believe that she was engaged in drug pushing. If there is no showing that the person who effected the warrantless arrest had, in his
own right, knowledge of facts implicating the person arrested to the perpetration of a criminal offense, the arrest is legally
objectionable.120

Since the warrantless arrest of accused-appellant Gaddao was illegal, it follows that the search of her person and home and the
subsequent seizure of the marked bills and marijuana cannot be deemed legal as an incident to her arrest. This brings us to the question
of whether the trial court correctly found that the box of marijuana was in plain view, making its warrantless seizure valid.

Objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure even without a
search warrant and maybe introduced in evidence.121 The "plain view" doctrine applies when the following requisites concur: (a) the
law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a
particular area; (b) the discovery of the evidence in plain view is inadvertent; (c) it is immediately apparent to the officer that the item
he observes may be evidence of a crime, contraband or otherwise subject to seizure. 122 The law enforcement officer must lawfully
make an initial intrusion or properly be in a position from which he can particularly view the area. 123 In the course of such lawful
intrusion, he came inadvertently across a piece of evidence incriminating the accused. 124 The object must be open to eye and
hand125 and its discovery inadvertent.126

It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty arises when the object is inside a
closed container. Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be
seized without a warrant. However, if the package proclaims its contents, whether by its distinctive configuration, its transparency, or
if its contents are obvious to an observer, then the contents are in plain view and may be seized. 127 In other words, if the package is
such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in
plain view.128 It must be immediately apparent to the police that the items that they observe may be evidence of a crime, contraband or
otherwise subject to seizure.129

PO3 Manlangit, the Narcom agent who found the box, testified on cross-examination as follows:

ATTY. VALDEZ:

So here we are. When you and Badua arrived, Aling Neneth was inside the house?
A Yes, sir.

Q Badua demanded from Aling Neneth the buy-bust money?

A Yes, sir.

Q At that particular instance, you saw the carton?

A Yes, sir.

Q This carton, according to you was under a table?

A Yes, sir, dining table.

Q I noticed that this carton has a cover?

A Yes, sir.

Q I ask you were the flaps of the cover raised or closed?

A It was open, sir. Not like that.

COURT

Go down there. Show to the court.

INTERPRETER

Witness went down the witness stand and approached a carton box.

A Like this, sir.

PROSECUTOR

Can we describe it?

ATTY. VALDEZ

Yes.

PROSECUTOR

One flap is inside and the other flap is standing and with the contents visible.

COURT

Noted.

Q At this juncture, you went inside the house?

A Yes, sir.

Q And got hold of this carton?

A Yes, sir.

Q Did you mention anything to Aling Neneth?

A I asked her, what's this. . .

Q No, no. no. did you mention anything to Aling Neneth before getting the carton?

A I think it was Badua who accosted Aling Neneth regarding the buy-bust money and he asked
"Sa iyo galing ang marijuanang ito, nasaan ang buy-bust money namin?" sir.

Q Making reference to the marijuana that was given by alias Jun?

A Yes, sir.
Q When you proceeded to take hold of this carton, Aling Neneth was not yet frisked, is it not
[sic]?

A I just don't know if she was frisked already by Badua, sir.

Q Who got hold of this?

A I was the one, sir.

Q You were the one who got this?

A Yes, sir.

Q At that particular point in time, you did not know if the alleged buy-bust money was already
retrieved by Badua?

A Yes, sir.

Q You went inside the house?

A Yes, sir.

Q You did not have any search warrant?

A Yes, sir.

Q In fact, there was nothing yet as far as you were concerned to validate the fact that Mrs. Gadao
was in possession of the buy-bust money because according to you, you did not know whether
Badua already retrieved the buy-bust money from her?

A Yes, sir.

Q How far was this from the door?

A Two and a half meters from the door, sir. It was in plain view.

Q Under the table according to you?

A Yes, sir, dining table.

Q Somewhere here?

A It's far, sir.

PROSECUTOR

May we request the witness to place it, where he saw it?

A Here, sir.

Q What you see is a carton?

A Yes, sir, with plastic.

Q Marked "Snow Time Ice Pop?

A Yes, sir.

Q With a piece of plastic visible on top of the carton?

A Yes, sir.

Q That is all that you saw?

A Yes, sir.

PROSECUTOR

For the record, your Honor. . .

 Q You were only able to verify according to you . . .

PRESECUTOR

Panero, wait. Because I am objecting to the words a piece of plastic. By reading it . . .

ATTY. VALDEZ

That's a piece of plastic.

PROSECUTOR

By reading it, it will connote . . . this is not a piece of plastic.

ATTY. VALDEZ

What is that? What can you say, Fiscal? I'm asking you?

PROSECUTOR

With due respect, what I am saying is, let's place the size of the plastic. A piece of plastic may be
big or a small one, for record purposes.

COURT

Leave that to the court.

PROSECUTOR

Leave that to the court.

Q The only reason according to you, you were able to . . . Look at this, no even Superman . . . I
withdraw that. Not even a man with very kin [sic] eyes can tell the contents here. And according to
the Court, it could be "tikoy," is it not [sic]?

A Yes, sir.

Q Siopao?

A Yes, sir.

Q Canned goods?

A Yes, sir.

Q It could be ice cream because it says Snow Pop, Ice Pop?

A I presumed it was also marijuana because it may . . .

Q I am not asking you what your presumptions are. I'm asking you what it could possibly be.

A It's the same plastic, sir.

ATTY. VALDEZ

I'm not even asking you that question so why are you voluntarily saying the information. Let the
prosecutor do that for you.

COURT

Continue. Next question.

xxx xxx xxx 130

P03 Manlangit and the police team were at appellant Gaddao's house because they were led there by appellant Doria. The
Narcom agents testified that they had no information on appellant Gaddao until appellant Doria name her and led them to
her.131 Standing by the door of appellant Gaddao's house, P03 Manlangit had a view of the interior of said house. Two and a
half meters away was the dining table and underneath it was a carton box. The box was partially open and revealed
something wrapped in plastic.
In his direct examination, PO3 Manlangit said that he was sure that the contents of the box were marijuana because he himself
checked and marked the said contents.132 On cross-examination, however, he admitted that he merely presumed the contents to be
marijuana because it had the same plastic wrapping as the "buy-bust marijuana." A close scrutiny of the records reveals that the plastic
wrapper was not colorless and transparent as to clearly manifest its contents to a viewer. Each of the ten (10) bricks of marijuana in
the box was individually wrapped in old newspaper and placed inside plastic bags — white, pink or blue in color. 133 PO3 Manlangit
himself admitted on cross-examination that the contents of the box could be items other than marijuana. He did not know exactly what
the box contained that he had to ask appellant Gaddao about its contents. 134 It was not immediately apparent to PO3 Manlangit that the
content of the box was marijuana. The marijuana was not in plain view and its seizure without the requisite search warrant was in
violation of the law and the Constitution. 135 It was fruit of the poisonous tree and should have been excluded and never considered by
the trial court.136

The fact that the box containing about six (6) kilos of marijuana 137 was found in the house of accused-appellant Gaddao does not
justify a finding that she herself is guilty of the crime charged. 138 Apropos is our ruling in People v. Aminnudin,139 viz:

The Court strongly supports the campaign of the government against drug addiction and commends the efforts of
our law enforcement officers against those who would inflict this malediction upon our people, especially the
susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill
of Rights for the protection of the liberty of every individual in the realm, including the basest of criminals. The
Constitution covers with the mantle of its protection the innocent and the guilty alike against any manner of high-
handedness from the authorities, however praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding the right of the individual in the name of
order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, 'I think it a less evil that some
criminals should escape than that the government should play an ignoble part.' It is simply not allowed in the free
society to violate a law to enforce another, especially if the law violated is the Constitution itself. 140

Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as amended by Section 13 of Republic Act No. 7659 punishes
the "sale, administration, delivery, distribution and transportation of a prohibited drug" with the penalty of reclusion perpetua to death
and a fine ranging from P500,000.00 to P10 million, to wit:

Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. — The penalty
of reclusion perpetua to death, and a fine ranging from five hundred thousand pesos to ten million pesos shall be
imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another,
distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions.

x x x           x x x          x x x

In every prosecution for illegal sale of dangerous drugs, what is material is the submission of proof that the sale took place
between the poseur-buyer and the seller thereof and the presentation of the drug, i.e., the corpus delicti, as evidence in
court.141 The prosecution has clearly established the fact that in consideration of P1,600.00 which he received, accused-
appellant Doria sold and delivered nine hundred seventy (970) grams of marijuana to PO3 Manlangit, the poseur-buyer. The
prosecution, however, has failed to prove that accused-appellant Gaddao conspired with accused-appellant Doria in the sale
of said drug. There being no mitigating or aggravating circumstances, the lower penalty of reclusion perpetua must be
imposed.142

IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 156, Pasig City acting as a Special Court in Criminal Case
No. 3307-D is reversed and modified as follows:

1. Accused-appellant Florencio Doria y Bolado is sentenced to suffer the penalty of reclusion perpetua and to pay a fine of five
hundred thousand pesos (P500,000.00).

2. Accused-appellant Violeta Gaddao y Catama is acquitted.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Martinez, Quisumbing, Purisima, Pardo, Buena and Gonzaga-
Reyes, JJ., concur.

Panganiban, J., please see concurring opinion.

Separate Opinions

PANGANIBAN, J., concurring opinion;

I fully concur with the exhaustive and incisive ponencia of Mr. Justice Reynato S. Puno. This Decision rightfully brings the Court
back to well-settled doctrines on warrantless arrests and searches, which have seemingly been modified through an obiter in People v.
Ruben Montilla.1 I just wish to outline some guidelines on when an arrest or a search without a warrant is valid. Hopefully, they would
be of help, especially to our law enforcers who are often faced with actual situations that promptly call for their application.

Valid Arrests

Without Warrants

Sec. 5 of Rule 113 of the Rules of Court lays down the basic rule on when an arrest without a warrant is lawful. It states:

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 personal knowledge of facts indicating that the
person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who 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.

x x x           x x x          x x x

I shall focus my discussion on the first two rules, which have been most frequently misapplied and misinterpreted, not only by law
enforcers but some trial judges and lawyers as well.

At the very outset, I wish to underscore that in both cases the arresting officer must have personal knowledge of the fact of the
commission of an offense. Under Section 5 (a), the officer himself is a witness to the crime; under Section 5 (b), he knows for a fact
that a crime has just been committed. Let me elaborate.

1. In Flagrante

Delicto Arrests

Sec. 5 (a) is commonly referred to as the rule on in flagrante delicto arrests.2 The accused is apprehended at the very moment he is
committing or attempting to commit or has just committed an offense in the presence of the arresting officer. There are two elements
that must concur: (1) 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 (2) such overt act is done in the presence or within the view of the arresting officer. 3

It is not sufficient that the suspect exhibits unusual or strange acts or simply appears suspicious. Thus, in the recent  en banc case
of Malicat v. Court of Appeals,4 the Court, through now Chief Justice Hilario G. Davide Jr., held that the fact that the appellant's eyes
were "moving very fast" and looking at every approaching person were not sufficient to suspect him of "attempting to commit a
crime," much less to justify his arrest and subsequent search without a warrant. The Court said that "there was nothing in [Malacat's]
behavior or conduct which could have reasonably elicited even mere suspicion" that he was armed with a deadly weapon. In other
words, there was no overt physical act on the part of the suspect, positively indicating that he had just committed a crime or was
committing or attempting to commit one. There was, therefore, no valid reason for the police officers to arrest or search him.

The same was true in People v. Mengote,5 where the arresting police tried to justify the warrantless arrest of the appellant on the
ground that he appeared suspicious. The "suspicious" acts consisted of his darting eyes and the fact that his hand was over his
abdomen. The Court, rejecting such justification, stated: "By no stretch of the imagination could it have been inferred from these acts
that an offense had just been committed, or was actually being committed, or was at least being attempted in their presence. 6

In other words, the behavior or conduct of the person to be arrested must be clearly indicative of a criminal act. If there is no outward
indication at all that calls for an arrest, the suspect cannot be validly apprehended under this paragraph, notwithstanding a tip from an
informant that he would at the time be undertaking a felonious enterprise.

This doctrine found strength in People v. Aminnudin  7 and again in People v. Encinada.8 In both cases, the appellants were arrested
while disembarking from a ship, on account of a tip received from an informant that they were carrying prohibited drugs. The Court
invalidated their warrantless arrests, explaining that at the moment of their arrests, the appellants were simply descending the
gangplank, without manifesting any suspicious behavior that would reasonably invite the attention of the police. To all appearances,
they were not committing a crime; nor was it shown that they were about to do so or had just done so. There was, therefore, no valid
reason for their arrests.

Adhering to (and having faith in) the above rules, I respectfully disagreed with the distinguished Mr. Justice Florenz D. Regalado
in People v. Montilla,9 when he upheld the validity of the warrantless arrest of the appellant while the latter was merely alighting from
a passenger jeepney. I opined that Montilla could not have been perceived as committing a crime while merely alighting from a
jeepney carrying a traveling bag and a carton. He did not exhibit any overt act or strange conduct that would reasonably arouse in the
minds of the police suspicion that he was embarking on a felonious undertaking. There was no outward manifestation that he had just
committed or was committing or attempting to commit an offense. Mercifully, the statement of the Court that Montilla's arrest was
valid because he was caught in flagrante delicto was only an obiter, for what finally nailed him down was his implied waiver of any
objection to the validity of his arrest.
 2. "Hot Pursuit"

Arrests

Sec. 5 (b) is otherwise known as the rule on "hot pursuit" arrests. 10 Here, two elements must also concur prior to the arrest: (1) and
"offense has in fact been committed," (2) the arresting officer "has personal knowledge of facts indicating that the person to be
arrested . . . committed [the offense]." In effecting this type of arrest, "it is not enough that there is reasonable ground to believe that
the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. . . . The fact of the
commission of the offense must be undisputed.11

Thus, while the law enforcers may not actually witness the execution of acts constituting the offense, they must have direct knowledge
or view of the crime right after its commission. They should know for a fact that a crime was committed. AND they must also
perceive acts exhibited by the person to be arrested, indicating that he perpetrated the crime. Again, mere intelligence information that
the suspect committed the crime will not suffice. The arresting officers themselves must have personal knowledge of facts showing
that the suspect performed the criminal act. Personal knowledge means actual belief or reasonable grounds of suspicion, based on
actual facts, that the person to be arrested is probably guilty of committing the crime. 12

In several cases wherein third persons gave law enforcers information that certain individuals or groups were engaged in some
felonious activities, such relayed information was not deemed equivalent to personal knowledge of the lawmen. In  People v.
Burgos,13 a certain Masamlok informed police authorities that the appellant was involved in subversive activities. Acting on the
strength of such information and without securing a judicial warrant, the police proceeded to appellant's house to arrest him. There,
they also allegedly recovered an unlicensed firearm and subversive materials.

The Court held that there was no personal knowledge on the part of the arresting officers, since the information came in its entirety
from Masamlok, a civilian. We pointed out that at the time of his arrest, appellant was not in actual possession of any firearm or
subversive document; neither was he committing a subversive act. 14 His warrantless arrest, therefore, could not be allowed under any
of the instances in Rule 113, Section 6 (now 5) of the Rules of Court.

Also in Encinada, the appellant was arrested without a warrant, on the justification that the arresting officer "received an intelligence
report that appellant who was carrying marijuana would arrive the next morning aboard M/V Sweet Pearl." The Court categorically
stated that such "[r]aw intelligence information is not a sufficient ground for a warrantless arrest." 15 And since, at the time of his arrest,
no act or fact demonstrating a felonious enterprise could be ascribed to appellant, there was no valid justification for his arrest.

To be distinguished from the above cases are those involving continuing offenses for which the culprit could be arrested any time  in
flagrante delicto. In Umil v. Ramos,16 there were strong objections to the warrantless arrest of a suspected member of the New People's
Army (NPA), while he was being treated for a gunshot wound in a hospital. He alleged that there was no valid justification for his
arrest without a warrant, because he was not then committing any offense nor were there any indications that he had just committed or
was about to commit one; he was in fact confined in a hospital.

The Court held that subversion, for which he was arrested and subsequently charged, was a continuing offense. For purposes of arrest,
the Court said, the NPA member "did not cease to be, or became less of a subversive, . . . simply because he was, at the time of his
arrest, confined in the . . . [hospital]." "Unlike other so-called 'common' offenses, i.e., adultery, murder, arson, etc., which generally
end upon their commission, subversion and rebellion are anchored on an ideological base which compels the repetition of the same
acts of lawlessness and violence until the overriding object of overthrowing organized government is attained. 17

In the above instances where the arrests without warrants were held unlawful, so were the searches conducted subsequent thereto.
Thus, the items seized consequent to the invalid search, though clearly prohibited by law (e.g. marijuana or unlicensed firearm), were
considered inadmissable as evidence against the person wrongfully arrested. Important to bear in mind always is that any search
conducted without a judicial warrant must be prcceded by a lawful arrest, whether with or without a warrant duly issued therefor.

To underscore the rationale behind these strict rules, I deem it quite apt to quote these inspiring words from the precedent-setting case
of People v. Burgos:18

The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a
most basic and fundamental one. The statute or rule which allows exceptions to the requirement of warrants of arrest
is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd
or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without
warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon
personal liberty and set back a basic right so often violated and so deserving of full protection.

Valid Searches

Without Warrant

The general rule is that a judicial warrant must first be duly obtained before search and seizure may be conducted. The only allowable
instances in which a search may be conducted without a warrant are: (1) search incident to lawful arrest, (2) search pursuant to the
"plain view" doctrine, (3) search of moving vehicles, (4) searches incidental to violation of customs laws, (5) search with consent, and
(6) a "stop and frisk.19

1. Search Incident

to Lawful Arrest
Section 12 of Rule 126 provides that a lawfully arrested person may be searched without a warrant for dangerous weapons or anything
else that may be used as evidence of the offense. Such incidental search is, however, limited to the person of the arrestee at the time of
the apprehension. The search cannot be extended to or made in a place other than the place of the arrest. 20

2. The "Plain View"

Doctrine

The "plain view" doctrine applies when the following requisites concur: (1) the law enforcement officer is in a position where he has a
clear view of a particular area or has prior justification for an intrusion; (2) said officer inadvertently comes across (or sees in
plainview) a piece of incriminating evidence; and (3) it is immediately apparent to such officer that the item he sees may be evidence
of a crime or a contraband or is otherwise subject to seizure.21

3. Search of

Moving Vehicles

The warrantless search of moving vehicles (including shipping vessels and aircraft) is justified by practicability, viz.:22

The guaranty of freedom from unreasonable searches and seizures construed as recognizing a necessary difference
between a search of a dwelling house or other structure in respect of which a search warrant may readily be obtained
and a search of a ship, motorboat, wagon, or automobile for contraband goods, where it is not practicable to secure a
warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be
sought.

x x x           x x x          x x x

The automobile is a swift and powerful vehicle . . . Constructed as covered vehicles to standard form in immense
quantities, and with a capacity for speed rivaling express trains they furnish for successful commission of crime a
distinguishing means of silent approach and swift escape unknown in the history of the world before their advent.
The question of their police control and reasonable search on highways or other public place is a serious question far
deeper and broader than their use in so-called 'bootlegging' or 'rum running,' which in itself is no small matter. While
a possession in the sense of private ownership, they are but a vehicle constructed for travel and transportation on
highways. Their active use is not in homes or on private premises, the privacy of which the law especially guards
from search and seizure without process. The baffling extent to which they are successfully utilized to facilitate
commission of crime of all degrees, from those against morality, chastity, and decency to robbery, rape, burglary,
and murder, is a matter of common knowledge. Upon that problem, a condition, and not a theory, confronts proper
administration of our criminal laws. Whether search of and seizure from an automobile upon a highway or other
public place without a search warrant is unreasonable is in its final analysis to be determined as a judicial question in
view of all the circumstances under which it is made.

4. Customs Searches

Under the Tariff and Customs Code, searches, seizures and arrests may be made even without warrants, for purposes of enforcing
customs and tariff laws. Without mention of the need to priorly obtain a judicial warrant, the Code specifically allows police
authorities to "enter, pass through or search any land, enclosure, warehouse, store or building, not being a dwelling house; and also to
inspect, search and examine any vessel or aircraft and any trunk, package, box or envelope or any person on board[;]or stop and search
and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the
Philippines contrary to law.23

5. Search With Consent

Waiver of any objection to the unresonableness or invalidity of a search is a recognized exception to the rule against a warrantless
search.24 The consent to the search, however, must be express knowing and voluntary. A search based merely on implied acquiescene
is not valid, because such consent is not within the purview of the constitutional gurantee, but only a passive conformity to the search
given under intimidating and coercive circumstances. 25

6. Stop and Frisk

The "stop and frisk" concept is of American origin, the most notable case thereon being Terry v. Ohio.27 The idea is that a police
officer may after properly introducing himself and making initial inquiries, approach and restrain a person manifesting unusual and
suspicious conduct, in order to check, the latter's outer clothing for possibly concealed weapons. The strict manner in which this
notion should be applied has been laid down as follows:28

. . . where a police officer observes unusual conduct which leads him reasonably to conclude in the light of his
experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and
presently dangerous, where in the course of investigating this behaviour, he identifies himself as a policeman and
makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable
fear for his own and others' safety, he is entitled for the protection of himself and others in the area to conduct a
carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used
to assault him.
As in the warrantless arrest of a person reasonably suspected of having just committed a crime, mere suspicious behavior would not
call for a "stop and frisk." There must be a genuine reason, in accordance with the police officer's experience and the surrounding
conditions, to warrant the belief that the person to be held has weapons (or contraband) concealed about him.29

A valid application of the doctrine was recognized in Posadas v. Court of Appeals  30 and in Manalili v. Court of Appeals.31 In
Manalili, the law enforcers who were members of the Anti-Narcotics Unit of the Caloocan City Police, observed during their
surveillance that appellant had red eyes and was walking in a wobby manner along the city cemetery which, according to police
information, was a popular hangout of drug addicts. Based on police experience, such suspicious behaviour was characteristic of
persons who were "high" on drugs. The Court held that past experience and the surrounding circumstances gave the police sufficient
reason to stop the suspect and to investigate if he was really high on drugs. The marijuana that they found in the suspect's possession
was held to be admissible in evidence.

Before I end, I must reiterate that the above exceptions to the general rule on the necessity of a judicial warrant for any arrest, search
and seizure must all be strictly construed. Foremost in our minds must still be every person's prized and fundamental right to liberty
and security, a right protected and guaranteed by our Constitution.

WHEREFORE, I vote to ACQUIT Appellant Violeta Gaddao y Catama, as well as to REDUCE the penalty of Appellant Florencio
Doria y Bolado to reclusion perpetua and a fine of P500,000.

Separate Opinions

PANGANIBAN, J., concurring opinion;

I fully concur with the exhaustive and incisive ponencia of Mr. Justice Reynato S. Puno. This Decision rightfully brings the Court
back to well-settled doctrines on warrantless arrests and searches, which have seemingly been modified through an obiter in People v.
Ruben Montilla.1 I just wish to outline some guidelines on when an arrest or a search without a warrant is valid. Hopefully, they would
be of help, especially to our law enforcers who are often faced with actual situations that promptly call for their application.

Valid Arrests

Without Warrants

Sec. 5 of Rule 113 of the Rules of Court lays down the basic rule on when an arrest without a warrant is lawful. It states:

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 personal knowledge of facts indicating that the
person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who 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.

x x x           x x x          x x x

I shall focus my discussion on the first two rules, which have been most frequently misapplied and misinterpreted, not only by law
enforcers but some trial judges and lawyers as well.

At the very outset, I wish to underscore that in both cases the arresting officer must have personal knowledge of the fact of the
commission of an offense. Under Section 5 (a), the officer himself is a witness to the crime; under Section 5 (b), he knows for a fact
that a crime has just been committed. Let me elaborate.

1. In Flagrante

Delicto Arrests

Sec. 5 (a) is commonly referred to as the rule on in flagrante delicto arrests.2 The accused is apprehended at the very moment he is
committing or attempting to commit or has just committed an offense in the presence of the arresting officer. There are two elements
that must concur: (1) 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 (2) such overt act is done in the presence or within the view of the arresting officer. 3

It is not sufficient that the suspect exhibits unusual or strange acts or simply appears suspicious. Thus, in the recent  en banc case
of Malicat v. Court of Appeals,4 the Court, through now Chief Justice Hilario G. Davide Jr., held that the fact that the appellant's eyes
were "moving very fast" and looking at every approaching person were not sufficient to suspect him of "attempting to commit a
crime," much less to justify his arrest and subsequent search without a warrant. The Court said that "there was nothing in [Malacat's]
behavior or conduct which could have reasonably elicited even mere suspicion" that he was armed with a deadly weapon. In other
words, there was no overt physical act on the part of the suspect, positively indicating that he had just committed a crime or was
committing or attempting to commit one. There was, therefore, no valid reason for the police officers to arrest or search him.
The same was true in People v. Mengote,5 where the arresting police tried to justify the warrantless arrest of the appellant on the
ground that he appeared suspicious. The "suspicious" acts consisted of his darting eyes and the fact that his hand was over his
abdomen. The Court, rejecting such justification, stated: "By no stretch of the imagination could it have been inferred from these acts
that an offense had just been committed, or was actually being committed, or was at least being attempted in their presence. 6

In other words, the behavior or conduct of the person to be arrested must be clearly indicative of a criminal act. If there is no outward
indication at all that calls for an arrest, the suspect cannot be validly apprehended under this paragraph, notwithstanding a tip from an
informant that he would at the time be undertaking a felonious enterprise.

This doctrine found strength in People v. Aminnudin  7 and again in People v. Encinada.8 In both cases, the appellants were arrested
while disembarking from a ship, on account of a tip received from an informant that they were carrying prohibited drugs. The Court
invalidated their warrantless arrests, explaining that at the moment of their arrests, the appellants were simply descending the
gangplank, without manifesting any suspicious behavior that would reasonably invite the attention of the police. To all appearances,
they were not committing a crime; nor was it shown that they were about to do so or had just done so. There was, therefore, no valid
reason for their arrests.

Adhering to (and having faith in) the above rules, I respectfully disagreed with the distinguished Mr. Justice Florenz D. Regalado
in People v. Montilla,9 when he upheld the validity of the warrantless arrest of the appellant while the latter was merely alighting from
a passenger jeepney. I opined that Montilla could not have been perceived as committing a crime while merely alighting from a
jeepney carrying a traveling bag and a carton. He did not exhibit any overt act or strange conduct that would reasonably arouse in the
minds of the police suspicion that he was embarking on a felonious undertaking. There was no outward manifestation that he had just
committed or was committing or attempting to commit an offense. Mercifully, the statement of the Court that Montilla's arrest was
valid because he was caught in flagrante delicto was only an obiter, for what finally nailed him down was his implied waiver of any
objection to the validity of his arrest.

2. "Hot Pursuit"

Arrests

Sec. 5 (b) is otherwise known as the rule on "hot pursuit" arrests. 10 Here, two elements must also concur prior to the arrest: (1) and
"offense has in fact been committed," (2) the arresting officer "has personal knowledge of facts indicating that the person to be
arrested . . . committed [the offense]." In effecting this type of arrest, "it is not enough that there is reasonable ground to believe that
the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. . . . The fact of the
commission of the offense must be undisputed.11

Thus, while the law enforcers may not actually witness the execution of acts constituting the offense, they must have direct knowledge
or view of the crime right after its commission. They should know for a fact that a crime was committed. AND they must also
perceive acts exhibited by the person to be arrested, indicating that he perpetrated the crime. Again, mere intelligence information that
the suspect committed the crime will not suffice. The arresting officers themselves must have personal knowledge of facts showing
that the suspect performed the criminal act. Personal knowledge means actual belief or reasonable grounds of suspicion, based on
actual facts, that the person to be arrested is probably guilty of committing the crime. 12

In several cases wherein third persons gave law enforcers information that certain individuals or groups were engaged in some
felonious activities, such relayed information was not deemed equivalent to personal knowledge of the lawmen. In  People v.
Burgos,13 a certain Masamlok informed police authorities that the appellant was involved in subversive activities. Acting on the
strength of such information and without securing a judicial warrant, the police proceeded to appellant's house to arrest him. There,
they also allegedly recovered an unlicensed firearm and subversive materials.

The Court held that there was no personal knowledge on the part of the arresting officers, since the information came in its entirety
from Masamlok, a civilian. We pointed out that at the time of his arrest, appellant was not in actual possession of any firearm or
subversive document; neither was he committing a subversive act. 14 His warrantless arrest, therefore, could not be allowed under any
of the instances in Rule 113, Section 6 (now 5) of the Rules of Court.

Also in Encinada, the appellant was arrested without a warrant, on the justification that the arresting officer "received an intelligence
report that appellant who was carrying marijuana would arrive the next morning aboard M/V Sweet Pearl." The Court categorically
stated that such "[r]aw intelligence information is not a sufficient ground for a warrantless arrest." 15 And since, at the time of his arrest,
no act or fact demonstrating a felonious enterprise could be ascribed to appellant, there was no valid justification for his arrest.

To be distinguished from the above cases are those involving continuing offenses for which the culprit could be arrested any time  in
flagrante delicto. In Umil v. Ramos,16 there were strong objections to the warrantless arrest of a suspected member of the New People's
Army (NPA), while he was being treated for a gunshot wound in a hospital. He alleged that there was no valid justification for his
arrest without a warrant, because he was not then committing any offense nor were there any indications that he had just committed or
was about to commit one; he was in fact confined in a hospital.

The Court held that subversion, for which he was arrested and subsequently charged, was a continuing offense. For purposes of arrest,
the Court said, the NPA member "did not cease to be, or became less of a subversive, . . . simply because he was, at the time of his
arrest, confined in the . . . [hospital]." "Unlike other so-called 'common' offenses, i.e., adultery, murder, arson, etc., which generally
end upon their commission, subversion and rebellion are anchored on an ideological base which compels the repetition of the same
acts of lawlessness and violence until the overriding object of overthrowing organized government is attained. 17

In the above instances where the arrests without warrants were held unlawful, so were the searches conducted subsequent thereto.
Thus, the items seized consequent to the invalid search, though clearly prohibited by law (e.g. marijuana or unlicensed firearm), were
considered inadmissable as evidence against the person wrongfully arrested. Important to bear in mind always is that any search
conducted without a judicial warrant must be prcceded by a lawful arrest, whether with or without a warrant duly issued therefor.
To underscore the rationale behind these strict rules, I deem it quite apt to quote these inspiring words from the precedent-setting case
of People v. Burgos:18

The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a
most basic and fundamental one. The statute or rule which allows exceptions to the requirement of warrants of arrest
is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd
or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without
warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon
personal liberty and set back a basic right so often violated and so deserving of full protection.

Valid Searches

Without Warrant

The general rule is that a judicial warrant must first be duly obtained before search and seizure may be conducted. The only allowable
instances in which a search may be conducted without a warrant are: (1) search incident to lawful arrest, (2) search pursuant to the
"plain view" doctrine, (3) search of moving vehicles, (4) searches incidental to violation of customs laws, (5) search with consent, and
(6) a "stop and frisk.19

1. Search Incident

to Lawful Arrest

Section 12 of Rule 126 provides that a lawfully arrested person may be searched without a warrant for dangerous weapons or anything
else that may be used as evidence of the offense. Such incidental search is, however, limited to the person of the arrestee at the time of
the apprehension. The search cannot be extended to or made in a place other than the place of the arrest. 20

2. The "Plain View"

Doctrine

The "plain view" doctrine applies when the following requisites concur: (1) the law enforcement officer is in a position where he has a
clear view of a particular area or has prior justification for an intrusion; (2) said officer inadvertently comes across (or sees in
plainview) a piece of incriminating evidence; and (3) it is immediately apparent to such officer that the item he sees may be evidence
of a crime or a contraband or is otherwise subject to seizure.21

3. Search of

Moving Vehicles

The warrantless search of moving vehicles (including shipping vessels and aircraft) is justified by practicability, viz.:22

The guaranty of freedom from unreasonable searches and seizures construed as recognizing a necessary difference
between a search of a dwelling house or other structure in respect of which a search warrant may readily be obtained
and a search of a ship, motorboat, wagon, or automobile for contraband goods, where it is not practicable to secure a
warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be
sought.

x x x           x x x          x x x

The automobile is a swift and powerful vehicle . . . Constructed as covered vehicles to standard form in immense
quantities, and with a capacity for speed rivaling express trains they furnish for successful commission of crime a
distinguishing means of silent approach and swift escape unknown in the history of the world before their advent.
The question of their police control and reasonable search on highways or other public place is a serious question far
deeper and broader than their use in so-called 'bootlegging' or 'rum running,' which in itself is no small matter. While
a possession in the sense of private ownership, they are but a vehicle constructed for travel and transportation on
highways. Their active use is not in homes or on private premises, the privacy of which the law especially guards
from search and seizure without process. The baffling extent to which they are successfully utilized to facilitate
commission of crime of all degrees, from those against morality, chastity, and decency to robbery, rape, burglary,
and murder, is a matter of common knowledge. Upon that problem, a condition, and not a theory, confronts proper
administration of our criminal laws. Whether search of and seizure from an automobile upon a highway or other
public place without a search warrant is unreasonable is in its final analysis to be determined as a judicial question in
view of all the circumstances under which it is made.

4. Customs Searches

Under the Tariff and Customs Code, searches, seizures and arrests may be made even without warrants, for purposes of enforcing
customs and tariff laws. Without mention of the need to priorly obtain a judicial warrant, the Code specifically allows police
authorities to "enter, pass through or search any land, enclosure, warehouse, store or building, not being a dwelling house; and also to
inspect, search and examine any vessel or aircraft and any trunk, package, box or envelope or any person on board[;]or stop and search
and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the
Philippines contrary to law.23
 5. Search With Consent

Waiver of any objection to the unresonableness or invalidity of a search is a recognized exception to the rule against a warrantless
search.24 The consent to the search, however, must be express knowing and voluntary. A search based merely on implied acquiescene
is not valid, because such consent is not within the purview of the constitutional gurantee, but only a passive conformity to the search
given under intimidating and coercive circumstances. 25

6. Stop and Frisk

The "stop and frisk" concept is of American origin, the most notable case thereon being Terry v. Ohio.27 The idea is that a police
officer may after properly introducing himself and making initial inquiries, approach and restrain a person manifesting unusual and
suspicious conduct, in order to check, the latter's outer clothing for possibly concealed weapons. The strict manner in which this
notion should be applied has been laid down as follows:28

. . . where a police officer observes unusual conduct which leads him reasonably to conclude in the light of his
experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and
presently dangerous, where in the course of investigating this behaviour, he identifies himself as a policeman and
makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable
fear for his own and others' safety, he is entitled for the protection of himself and others in the area to conduct a
carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used
to assault him.

As in the warrantless arrest of a person reasonably suspected of having just committed a crime, mere suspicious behavior would not
call for a "stop and frisk." There must be a genuine reason, in accordance with the police officer's experience and the surrounding
conditions, to warrant the belief that the person to be held has weapons (or contraband) concealed about him.29

A valid application of the doctrine was recognized in Posadas v. Court of Appeals  30 and in Manalili v. Court of Appeals.31 In
Manalili, the law enforcers who were members of the Anti-Narcotics Unit of the Caloocan City Police, observed during their
surveillance that appellant had red eyes and was walking in a wobby manner along the city cemetery which, according to police
information, was a popular hangout of drug addicts. Based on police experience, such suspicious behaviour was characteristic of
persons who were "high" on drugs. The Court held that past experience and the surrounding circumstances gave the police sufficient
reason to stop the suspect and to investigate if he was really high on drugs. The marijuana that they found in the suspect's possession
was held to be admissible in evidence.

Before I end, I must reiterate that the above exceptions to the general rule on the necessity of a judicial warrant for any arrest, search
and seizure must all be strictly construed. Foremost in our minds must still be every person's prized and fundamental right to liberty
and security, a right protected and guaranteed by our Constitution.1âwphi1.nêt

WHEREFORE, I vote to ACQUIT Appellant Violeta Gaddao y Catama, as well as to REDUCE the penalty of Appellant Florencio
Doria y Bolado to reclusion perpetua and a fine of P500,000

21. People v. Miranda, G.R. No. 231989

G.R. No. 231989

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.
ROMY LIM y MIRANDA, Accused-Appellant

DECISION

PERALTA, J.:

On appeal is the February 23, 2017 Decision 1 of the Court of Appeals (CA) in CA-G.R. CR HC No. 01280-MIN, which affirmed the
September 24, 2013 Decision2 of Regional Trial Court (RTC), Branch 25, Cagayan de Oro City, in Criminal Case Nos. 2010-1073 and
2010-1074, finding accused-appellant Romy Lim y Miranda (Lim) guilty of violating Sections 11 and 5, respectively, of Article II of
Republic Act (R.A.) No. 9165, or the Comprehensive Dangerous Drugs Act of 2002.

In an Information dated October 21, 2010, Lim was charged with illegal possession of Methamphetamine
Hydrochloride (shabu), committed as follows:

That on or about October 19, 2010, at more or less 10:00 o'clock in the evening, at Cagayan de Oro City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, without being authorized by law to possess or use any dangerous
drugs, did then and there, willfully, unlawfully, criminally and knowingly have in his possession, custody and control one (1) heat-
sealed transparent plastic sachet containing Methamphetamine hydrochloride, locally known as Shabu, a dangerous drug, with a total
weight of 0.02 gram, accused well-knowing that the substance recovered from his possession is a dangerous drug.

Contrary to, and in violation of, Section 11, Article II of Republic Act No. 9165.3
On even date, Lim, together with his stepson, Eldie Gorres y Nave (Gorres), was also indicted for illegal sale of shabu, committed as
follows:

That on or about October 19, 2010, at more or less 10:00 o'clock in the evening, at Cagayan de Oro City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another,
without being authorized by law to sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or
transport any dangerous drugs, did then and there willfully, unlawfully, criminally and knowingly sell and/or offer for sale, and give
away to a PDEA Agent acting as poseur-buyer One (1) heat-sealed transparent plastic sachet containing Methamphetamine
hydrochloride, locally known as Shabu, a dangerous drug, with a total weight of 0.02 gram, accused knowing the same to be a
dangerous drug, in consideration of Five Hundred Pesos (Php500.00) consisting of one piece five hundred peso bill, with Serial No.
FZ386932, which was previously marked and recorded for the purpose of the buy-bust operation.

Contrary to Section 5, Paragraph 1, Article II of Republic Act No. 9165.4

In their arraignment, Lim and Gorres pleaded not guilty. 5 They were detained in the city jail during the joint trial of the cases. 6

The prosecution presented Intelligence Officer (IO) 1 Albert Orellan, 101 Nestle Carin, 102 Vincent Orcales, and Police Senior
Inspector (PSI) Charity Caceres. Aside from both accused, Rubenia Gorres testified for the defense.

Version of the Prosecution

Around 8:00 p.m. on October 19, 2010, IO1 Orellan and his teammates were at Regional Office X of the Philippine Drug Enforcement
Agency (PDEA). Based on a report of a confidential informant (CI) that a certain "Romy" has been engaged in the sale of prohibited
drugs in Zone 7, Cabina, Bonbon, Cagayan de Oro City, they were directed by their Regional Director, Lt. Col. Edwin Layese, to
gather for a buy-bust operation. During the briefing, IO2 Orcales, IO1 Orellan, and IO1 Carin were assigned as the team leader, the
arresting officer/back-up/evidence custodian, and the poseur-buyer, respectively. The team prepared a ₱500.00 bill as buy-bust money
(with its serial number entered in the PDEA blotter), the Coordination Form for the nearest police station, and other related
documents.

Using their service vehicle, the team left the regional office about15 minutes before 10:00 p.m. and arrived in the target area at 10:00
p.m., more or less. IOI Carin and the CI alighted froin the vehicle near the comer leading to the house of "Romy," while IO1 Orellan
and the other team members disembarked a few meters after and positioned themselves in the area to observe. IOI Carin and the CI
turned at the comer and stopped in front of a house. The CI knocked at the door and uttered, "ayo, nong Romy." Gorres came out and
invited them to enter. Inside, Lim was sitting on the sofa while watching the television. When the CI introduced IO1 Carin as
a shabu buyer, Lim nodded and told Gorres to get one inside the bedroom. Gorres stood up and did as instructed. After he came out,
he handed a small medicine box to Lim, who then took one piece of heat-sealed transparent plastic of  shabu and gave it to IO1 Carin.
In turn, IO1 Carin paid him with the buy-bust money.

After examining the plastic sachet, IO1 Carin executed a missed call to IO1 Orellan, which was the pre-arranged signal. The latter,
with the rest of the team members, immediately rushed to Lim's house. When they arrived, IO1 Carin and the CI were standing near
the door. They then entered the house because the gate was opened. IO1 Orellan declared that they were PDEA agents and informed
Lim and Gorres, who were visibly surprised, of their arrest for selling dangerous drug. They were ordered to put their hands on their
heads and to squat on the floor. IO1 Orellan recited the Miranda rights to them. Thereafter, IO1 Orellan conducted a body search on
both. When he frisked Lim, no deadly weapon was found, but something was bulging in his pocket. IO1 Orellan ordered him to pull it
out. Inside the pocket were the buy-bust money and a transparent rectangular plastic box about 3x4 inches in size. They could see that
it contained a plastic sachet of a white substance. As for Gorres, no weapon or illegal drug was seized.

IO1 Orellan took into custody the ₱500.00 bill, the plastic box with the plastic sachet of white substance, and a disposable lighter. 101
Carin turned over to him the plastic sachet that she bought from Lim. While in the house, IO1 Orellan marked the two plastic sachets.
Despite exerting efforts to secure the attendance of the representative from the media and barangay officials, nobody arrived to
witness the inventory-taking.

The buy-bust team brought Lim and Gorres to the PDEA Regional Office, with IO1 Orellan in possession of the seized items. Upon
arrival, they "booked" the two accused and prepared the letters requesting for the laboratory examination on the drug evidence and for
the drug test on the arrested suspects as well as the documents for the filing of the case. Likewise, IO1 Orellan made the Inventory
Receipt of the confiscated items. It was not signed by Lim and Gorres. Also, there was no signature of an elected public official and
the representatives of the Department of Justice (DOJ) and the media as witnesses. Pictures of both accused and the evidence seized
were taken.

The day after, IO1 Orellan and IO1 Carin delivered both accused and the drug specimens to Regional Crime Laboratory Office 10.
IO1 Orellan was in possession of the sachets of shabu from the regional office to the crime lab. PSI Caceres, who was a Forensic
Chemist, and Police Officer 2 (P02) Bajas7 personally received the letter-requests and the two pieces of heat-sealed transparent plastic
sachet containing white crystalline substance. PSI Caceres got urine samples from Lim and Gorres and conducted screening and
confirmatory tests on them. Based on her examination, only Lim was found positive for the presence of  shabu. The result was shown
in Chemistry Report No. DTCRIM-I96 and I97-2010. With respect to the two sachets of white crystalline substance, both were found
to be positive of shabu after a chromatographic examination was conducted by PSI Caceres. Her findings were reflected in Chemistry
Report No. D-228-2010. PSI Caceres, likewise, put her own marking on the cellophane containing the two sachets of shabu. After
that, she gave them to the evidence custodian. As to the buy-bust money, the arresting team turned it over to the fiscal's office during
the inquest.

Version of the Defense

Around 10:00 p.m. on October 19, 2010, Lim and Gorres were in their house in Cabina, Bonbon, Cagayan de Oro City. Lim was
sleeping in the bedroom, while Gorres was watching the television. When the latter heard that somebody jumped over their gate, he
stood up to verify. Before he could reach the door, however, it was already forced opened by the repeated pulling and kicking of men
in civilian clothing. They entered the house, pointed their firearms at him, instructed him to keep still, boxed his chest, slapped his
ears, and handcuffed him. They inquired on where the shabu was, but he invoked his innocence. When they asked the whereabouts of
"Romy," he answered that he was sleeping inside the bedroom. So the men went there and kicked the door open. Lim was then
surprised as a gun was pointed at his head. He questioned them on what was it all about, but he was told to keep quiet. The men let
him and Gorres sit on a bench. Lim was apprised of his Miranda rights. Thereafter, the two were brought to the PDEA Regional Office
and the crime laboratory. During the inquest proceedings, Lim admitted, albeit without the assistance of a counsel, ownership of the
two sachets of shabu because he was afraid that the police would imprison him. Like Gorres, he was not involved in drugs at the time
of his arrest. Unlike him, however, he was previously arrested by the PDEA agents but was acquitted in the case. Both Lim and Gorres
acknowledged that they did not have any quarrel with the PDEA agents and that neither do they have grudges against them or  vice-
versa.

Rubenia, Lim's live-in partner and the mother of Gorres, was at her sister's house in Pita, Pasil, Kauswagan the night when the arrests
were made. The following day, she returned home and noticed that the door was opened and its lock was destroyed. She took pictures
of the damage and offered the same as exhibits for the defense, which the court admitted as part of her testimony.

RTC Ruling

After trial, the R TC handed a guilty verdict on Lim for illegal possession and sale of  shabu and acquitted Gorres for lack of sufficient
evidence linking him as a conspirator. The fallo of the September 24, 2013 Decision states:

WHEREFORE, premises considered, this Court finds that:

1. In Criminal Case No. 2010-1073, accused ROMY LIM y MIRANDA is hereby found GUILTY of violating Section 11, Article II of
R.A. 9165 and is hereby sentenced to suffer the penalty of imprisonment ranging from twelve [12] years and one [1] day to thirteen
[13] years, and to pay a Fine in the amount of Three Hundred Thousand Pesos [P300,000.00] without subsidiary imprisonment in case
of non-payment of Fine;

2. In Criminal Case No. 2010-1074, accused ROMY LIM y MIRANDA is hereby found GUILTY of violating Section 5, Article II of
R.A. 9165, and is hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay the Fine in the amount of Five
Hundred Thousand Pesos [P500,000.00].

3. In Criminal Case No. 2010-1074, accused ELDIE GORRES y NAVE is hereby ACQUITTED of the offense charged for failure of
the prosecution to prove his guilt beyond reasonable doubt. The Warden of the BJMP having custody of ELDIE GORRES  y Nave, is
hereby directed to immediately release him from detention unless he is being charged of other crimes which will justify his continued
incarceration. 8

With regard to the illegal possession of a sachet of shabu, the RTC held that the weight of evidence favors the positive testimony of
IO1 Orellan over the feeble and uncorroborated denial of Lim. As to the sale of shabu, it ruled that the prosecution was able to
establish the identity of the buyer, the seller, the money paid to the seller, and the delivery of the shabu. The testimony of IO1 Carin
was viewed as simple, straightforward and without any hesitation or prevarication as she detailed in a credible manner the buy-bust
transaction that occurred. Between the two conflicting versions that are poles apart, the RTC found the prosecution evidence worthy of
credence and no reason to disbelieve in the absence of an iota of malice, ill-will, revenge or resentment preceding and pervading the
arrest of Lim. On the chain of custody of evidence, it was accepted with moral certainty that the PDEA operatives were able to
preserve the integrity and probative value of the seized items.

In so far as Gorres is concerned, the R TC opined that the evidence presented were not strong enough to support the claim that there
was conspiracy between him and Lim because it was insufficiently shown that he knew what the box contained. It also noted
Chemistry Report No. DTCRIM 196 & 197-2010, which indicated that Gorres was "NEGATIVE" of the presence of any illicit drug
based on his urine sample.

CA Ruling

On appeal, the CA affirmed the RTC Decision. It agreed with the finding of the trial court that the prosecution adequately established
all the elements of illegal sale of a dangerous drug as the collective evidence presented during the trial showed that a valid buy-bust
operation was conducted. Likewise, all the elements of illegal possession of a dangerous drug was proven. Lim resorted to denial and
could not present any proof or justification that he was fully authorized by law to possess the same. The CA was unconvinced with his
contention that the prosecution failed to prove the identity and integrity of the seized prohibited drugs. For the appellate court, it was
able to demonstrate that the integrity and evidentiary value of the confiscated drugs were not compromised. The witnesses for the
prosecution were able to testify on every link in the chain of custody, establishing the crucial link in the chain from the time the seized
items were first discovered until they were brought for examination and offered in evidence in court. Anent Lim's defense of denial
and frame-up, the CA did not appreciate the same due to lack of clear and convincing evidence that the police officers were inspired
by an improper motive. Instead the presumption of regularity in the performance of official duty was applied.

Before Us, both Lim and the People manifested that they would no longer file a Supplemental Brief, taking into account the thorough
and substantial discussions of the issues in their respective appeal briefs before the CA. 9 Essentially, Lim maintains that the case
records are bereft of evidence showing that the buy-bust team followed the procedure mandated in Section 21(1), Article II of R.A.
No. 9165.

Our Ruling

The judgment of conviction is reversed and set aside, and Lim should be acquitted based on reasonable doubt.
At the time of the commission of the crimes, the law applicable is R.A. No. 9165.  10 Section 1(b) of Dangerous Drugs Board
Regulation No. 1, Series of 2002, which implements the law, defines chain of custody as -

the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or
laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to
presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of
the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of
safekeeping and use in court as evidence, and the final disposition. 11

The chain of custody rule is but a variation of the principle that real evidence must be authenticated prior to its admission into
evidence. 12 To establish a chain of custody sufficient to make evidence admissible, the proponent needs only to prove a  rational
basis from which to conclude that the evidence is what the party claims it to be. 13 In other words, in a criminal case, the prosecution
must offer sufficient evidence from which the trier of fact could reasonably believe that an item still is what the government claims it
to be. 14 Specifically in the prosecution of illegal drugs, the well-established federal evidentiary rule in the United States is that when
the evidence is not readily identifiable and is susceptible to alteration by tampering or contamination, courts require a more stringent
foundation entailing a chain of custody of the item with sufficient completeness to render it improbable that the original item has
either been exchanged with another or been contaminated or tampered with. 15 This was adopted in Mallillin v. People, 16 where this
Court also discussed how, ideally, the chain of custody of seized items should be established:

As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence
sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every
link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who
touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness'
possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These
witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no
opportunity for someone not in the chain to have possession of the same. 17

Thus, the links in the chain of custody that must be established are: (1) the seizure and marking, if practicable, of the illegal drug
recovered from the accused by the apprehending officer; (2) the turnover of the seized illegal drug by the apprehending officer to the
investigating officer; (3) the turnover of the illegal drug by the investigating officer to the forensic chemist for laboratory examination;
and ( 4) the turnover and submission of the illegal drug from the forensic chemist to the court. 18

Seizure and marking of the illegal

drug as well as the turnover by the
apprehending officer to the
investigating officer

Section 21(1), Article II of R.A. No. 9165 states:

Sec. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take
charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as
well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the
following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected
public official who shall be required to sign the copies of the inventory and be given a copy thereof[.]19

Supplementing the above-quoted provision, Section 21(a) of the Implementing Rules and Regulations (IRR) of R.A. No. 9165
mandates:

(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DO.T), and any
elected public official who shall be required to sign the copies of the inventory and be given a copy thereof:  Provided, that the
physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station
or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures;  Provided,
further, that noncompliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the
seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody
over said items. 20

On July 15, 2014, R.A. No. 10640 was approved to amend R.A. No. 9165. Among other modifications, it essentially incorporated the
saving clause contained in the IRR, thus:

(1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals,
instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory
of the seized items and photograph the same in the presence of the accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution
Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof:  Provided, That the physical
inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the
nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures:  Provided, finally, That
noncompliance of these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items
are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over said items.

In her Sponsorship Speech on Senate Bill No. 2273, which eventually became R.A. No. 10640, Senator Grace Poe admitted that
"while Section 21 was enshrined in the Comprehensive Dangerous Drugs Act to safeguard the integrity of the evidence acquired and
prevent planting of evidence, the application of said section resulted in the ineffectiveness of the government's campaign to stop
increasing drug addiction and also, in the conflicting decisions of the courts." 21 Specifically, she cited that "compliance with the rule
on witnesses during the physical inventory is difficult. For one, media representatives are not always available in all comers of the
Philippines, especially in more remote areas. For another, there were instances where elected barangay officials themselves were
involved in the punishable acts apprehended." 22 In addition, "[t]he requirement that inventory is required to be done in police station is
also very limiting. Most police stations appeared to be far from locations where accused persons were apprehended." 23

Similarly, Senator Vicente C. Sotto III manifested that in view of the substantial number of acquittals in drug-related cases due to the
varying interpretations of the prosecutors and the judges on Section 21 of R.A. No. 9165, there is a need for "certain adjustments so
that we can plug the loopholes in our existing law" and "ensure [its] standard implementation." 24 In his Co-sponsorship Speech, he
noted:

Numerous drug trafficking activities can be traced to operations of highly organized and powerful local and international syndicates.
The presence of such syndicates that have the resources and the capability to mount a counter-assault to apprehending law enforcers
makes the requirement of Section 21(a) impracticable for law enforcers to comply with. It makes the place of seizure extremely unsafe
for the proper inventory and photograph of seized illegal drugs.

xxxx

Section 21(a) of RA 9165 needs to be amended to address the foregoing situation. We did not realize this in 2002 where the safety of
the law enforcers and other persons required to be present in the inventory and photography of seized illegal drugs and the
preservation of the very existence of seized illegal drugs itself are threatened by an immediate retaliatory action of drug syndicates at
the place of seizure. The place where the seized drugs may be inventoried and photographed has to include a location where the seized
drugs as well as the persons who are required to be present during the inventory and photograph are safe and secure from extreme
danger.

It is proposed that the physical inventory and taking of photographs of seized illegal drugs be allowed to be conducted either in the
place of seizure or at the nearest police station or office of the apprehending law enforcers. The proposal will provide effective
measures to ensure the integrity of seized illegal drugs since a safe location makes it more probable for an inventory and photograph
of seized illegal drugs to be properly conducted, thereby reducing the incidents of dismissal of drug cases due to technicalities.

Non-observance of the prescribed procedures should not automatically mean that the seizure or confiscation is invalid or illegal, as
long as the law enforcement officers could justify the same and could prove that the integrity and the evidentiary value of the seized
items are not tainted. This is the effect of the inclusion in the proposal to amend the phrase "justifiable grounds." There are instances
wherein there are no media people or representatives from the DOJ available and the absence of these witnesses should not
automatically invalidate the drug operation conducted. Even the presence of a public local elected official also is sometimes
impossible especially if the elected official is afraid or scared. 25

We have held that the immediate physical inventory and photograph of the confiscated items at the place of arrest may be excused in
instances when the safety and security of the apprehending officers and the witnesses required by law or of the items seized are
threatened by immediate or extreme danger such as retaliatory action of those who have the resources and capability to mount a
counter-assault.26 The present case is not one of those.

Here, IO1 Orellan took into custody the ₱500.00 bill, the plastic box with the plastic sachet of white substance, and a disposable
lighter. IO1 Carin also turned over to him the plastic sachet that she bought from Lim. While in the house, IO1 Orellan marked the
two plastic sachets. IO1 Orellan testified that he immediately conducted the marking and physical inventory of the two sachets of
shabu.27 To ensure that .they were not interchanged, he separately marked the item sold by Lim to 101 Carin and the one that he
recovered from his possession upon body search as BB AEO 10-19-10 and AEO-RI 10-19-10, respectively, with both bearing his
initial/signature.28

Evident, however, is the absence of an elected public official and representatives of the DOJ and the media to witness the physical
inventory and photograph of the seized items. 29 In fact, their signatures do not appear in the Inventory Receipt.

The Court stressed in People v. Vicente Sipin y De Castro: 30

The prosecution bears the burden of proving a valid cause for noncompliance with the procedure laid down in Section 21 of R.A. No.
9165, as amended. It has the positive duty to demonstrate observance thereto in such a way that during the trial proceedings, it must
initiate in acknowledging and justifying any perceived deviations from the requirements of law. Its failure to follow the mandated
procedure must be adequately explained, and must be proven as a fact in accordance with the rules on evidence. It should take note
that the rules require that the apprehending officers do not simply mention a justifiable ground, but also clearly state this ground in
their sworn affidavit, coupled with a statement on the steps they took to preserve the integrity of the seized items. Strict adherence to
Section 21 is required where the quantity of illegal drugs seized is miniscule, since it is highly susceptible to planting, tampering or
alteration of evidence.31

It must be alleged and proved that the -presence of the three witnesses to the physical inventory and photograph of the illegal drug
seized was not obtained due to reason/s such as:
(1) their attendance was impossible because the place of arrest was a remote area; (2) their safety during the inventory and
photograph of the seized drugs was threatened by an immediate retaliatory action of the accused or any person/s acting for
and in his/her behalf; (3) the elected official themselves were involved in the punishable acts sought to be apprehended; (4) earnest
efforts to secure the presence of a DOJ or media representative and an elected public official within the period required under Article
125 of the Revised Penal Code prove futile through no fault of the arresting officers, who face the threat of being charged with
arbitrary detention; or (5) time constraints and urgency of the anti-drug operations, which often rely on tips of confidential assets,
prevented the law enforcers from obtaining the presence of the required witnesses even before the offenders could escape. 32

Earnest effort to secure the attendance of the necessary witnesses must be proven. People v. Ramos33 requires:

It is well to note that the absence of these required witnesses does not per se render the confiscated items inadmissible. However, a
justifiable reason for such failure or a showing of any genuine and sufficient effort to secure the required witnesses under Section
21 of RA 9165 must be adduced. In People v. Umipang, the Court held that the prosecution must show that earnest efforts were
employed in contacting the representatives enumerated under the law for "a sheer statement that representatives were unavailable
without so much as an explanation on whether serious attempts were employed to look for other representatives, given the
circumstances is to be regarded as a flimsy excuse." Verily, mere statements of unavailability, absent actual serious attempts to contact
the required witnesses are unacceptable as justified grounds for noncompliance. These considerations arise from the fact that police
officers are ordinarily given sufficient time - beginning from the moment they have received the information about the activities of the
accused until the time of his arrest - to prepare for a buy-bust operation and consequently, make the necessary arrangements
beforehand knowing full well that they would have to strictly comply with the set procedure prescribed in Section 21 of RA 9165. As
such, police officers are compelled not only to state reasons for their non-compliance, but must in fact, also convince the Court that
they exerted earnest efforts to comply with the mandated procedure, and that under the given circumstances, their actions were
reasonable. 34

In this case, IO1 Orellan testified that no members of the media and barangay officials arrived at the crime scene because it was late at
night and it was raining, making it unsafe for them to wait at Lim's house. 35 102 Orcales similarly declared that the inventory was
made in the PDEA office considering that it was late in the evening and there were no available media representative and barangay
officials despite their effort to contact them. 36 He admitted that there are times when they do not inform the barangay officials prior to
their operation as they might leak the confidential information. 37 We are of the view that these justifications are unacceptable as there
was no genuine and sufficient attempt to comply with the law.

The testimony of team-leader IO2 Orcales negates any effort on the part of the buy-bust team to secure the presence of a barangay
official during the operation:

ATTY. DEMECILLO:

xx xx

Q x x x Before going to the house of the accused, why did you not contact a barangay official to witness the operation?

A There are reasons why we do not inform a barangay official before our operation, Sir.

Q Why?

A We do not contact them because we do not trust them. They might leak our information. 38

The prosecution likewise failed to explain why they did not secure the presence of a representative from the Department of Justice
(DOJ). While the arresting officer, IO1 Orellan, stated in his Affidavit that they only tried to coordinate with the barangay officials
and the media, the testimonies of the prosecution witnesses failed to show that they tried to contact a DOJ representative.

The testimonies of the prosecution witnesses also failed to establish the details of an earnest effort to coordinate with and secure
presence of the required witnesses. They also failed to explain why the buy-bust team felt "unsafe" in waiting for the representatives in
Lim's house, considering that the team is composed of at least ten (10) members, and the two accused were the only persons in the
house.

It bears emphasis that the rule that strict adherence to the mandatory requirements of Section 21(1) of R.A. No. 9165, as amended, and
its IRR may be excused as long as the integrity and the evidentiary value of the confiscated items are properly preserved applies not
just on arrest and/or seizure by reason of a legitimate buy-bust operation but also on those lawfully made in air or sea port, detention
cell or national penitentiary, checkpoint, moving vehicle, local or international package/parcel/mail, or those by virtue of a consented
search, stop and frisk (Terry search), search incident to a lawful arrest, or application of plain view doctrine where time is of the
essence and the arrest and/or seizure is/are not planned, arranged or scheduled in advance.

To conclude, judicial notice is taken of the fact that arrests and seizures related to illegal drugs are typically made without a warrant;
hence, subject to inquest proceedings. Relative thereto, Sections 1 (A.1.10) of the Chain of Custody Implementing Rules and
Regulations directs:

A. I. I 0. Any justification or explanation in cases of noncompliance with the requirements of Section 2I (1) of R.A. No. 9I65, as
amended, shall be clearly stated in the sworn statements/affidavits of the apprehending/seizing officers, as well as the steps taken to
preserve the integrity and evidentiary value of the seized/confiscated items. Certification or record of coordination for operating units
other than the PDEA pursuant to Section 86 (a) and (b), Article IX of the IRR of R.A. No. 9I65 shall be presented. 39
While the above-quoted provision has been the rule, it appears that it has not been practiced in most cases elevated before Us. Thus, in
order to weed out early on from the courts' already congested docket any orchestrated or poorly built up drug-related cases, the
following should henceforth be enforced as a mandatory policy:

1. In the sworn statements/affidavits, the apprehending/seizing officers must state their compliance with the requirements of Section
21 (1) of R.A. No. 9165, as amended, and its IRR.

2. In case of non-observance of the provision, the apprehending/seizing officers must state the justification or explanation therefor as
well as the steps they have taken in order to preserve the integrity and evidentiary value of the seized/ confiscated i terns.

3. If there is no justification or explanation expressly declared in the sworn statements or affidavits, the investigating fiscal must not
immediately file the case before the court. Instead, he or she must refer the case for further preliminary investigation in order to
determine the (non) existence of probable cause.

4. If the investigating fiscal filed the case despite such absence, the court may exercise its discretion to either refuse to issue a
commitment order (or warrant of arrest) or dismiss the case outright for lack of probable cause in accordance with Section 5, 40 Rule
112, Rules of Court.

WHEREFORE, premises considered, the February 23, 2017 Decision of the Court of Appeals in CA-G.R. CR HC No. 01280-MIN,
which affirmed the September 24, 2013 Decision of Regional Trial Court, Branch 25, Cagayan de Oro City, in Criminal Cases Nos.
2010-1073 and 2010-1074, finding accused-appellant Romy Lim y Miranda guilty of violating Sections 11 and 5, respectively, of
Article II of Republic Act No. 9165, is REVERSED and SET ASIDE. Accordingly, accused-appellant Romy Lim y Miranda is
ACQUITTED on reasonable doubt, and is ORDERED IMMEDIATELY RELEASED from detention, unless he is being lawfully
held for another cause. Let an entry of final judgment be issued immediately.

Let a copy of this Decision be furnished the Superintendent of the Davao Prison and Penal Farm, B.E. Dujali, Davao del Norte, for
immediate implementation. The said Director is ORDERED to REPORT to this Court within five (5) days from receipt of this
Decision the action he has taken.

Let copies of this Decision be furnished to the Secretary of the Department of Justice, as well as to the Head/Chief of the National
Prosecution Service, the Office of the Solicitor General, the Public Attorney's Office, the Philippine National Police, the Philippine
Drug Enforcement Agency, the National Bureau of Investigation, and the Integrated Bar of the Philippines for their information and
guidance. Likewise, the Office of the Court Administrator is DIRECTED to DISSEMINATE copies of this Decision to all trial
courts, including the Court of Appeals.

SO ORDERED.