7. Tabuena v.

Sandiganbayan, 268 Scra 332 (1997)

FACTS: Then President Marcos instructed Luis Tabuena over the phone to
pay directly to the president’s office and in cash what the Manila
International Airport Authority (MIAA) owes the Philippine National
Construction Corporation (PNCC), pursuant to the 7 January 1985
memorandum of then Minister Trade and Industry Roberto Ongpin,
Tabuena agreed. About a week later, Tabuena received from Ms. Fe Roa-
Jimenez, then private secretary of Marccos, a Presidential Memorandum
dated 8 January 1986 reiterating in black and white such verbal
instruction. In obedience to President Marcos’ verbal instruction and
memorandum, Tabuena, with the help of Gerardo G. Dabao and Adolfo
Peralta, caused the release of P55 Million of MIAA funds by means of
three (3) withdrawals. On 10 January 1986, the first withdrawal was made
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
was delivered on the same day to the office of Mrs. Gimenez. 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 16 January 1986. The third and
last withdrawal was made on 31 January 1986 for 5 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 loaded in the trunk of Tabuena’s car. Peralta did
not go with Tabuena to deliver the money to Mrs. Gimenez’ office. 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 was dated
January 30, 1986. Tabuena and Peralta were charged for malversation of
funds, while Dabao remained at large. One of the justices of the
Ssandiganbayan actively took part in the questioning of a defense witness
and of the accused themselves; the volume of the questions asked were
more the combined questions of the counsels. On October 12,1990, they
were found guilty of beyond reasonable doubt. Tabuena and Peralta filed
separate petitions for review, appealing the Sandiganbayan decision dated
12 October 1990 and the Resolution of 20 December 1991.

ISSUE: Whether or not petitioners are guilty of the crime of malversation.

HELD: Luis Tabuena and Adolfo Peralta are aquitted of the crime of
malversation . Tabuena acted in strict compliance with the MARCOS
Memorandum. The order emanated from the Office of the President and
bears the signature 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
constraints one to act swiftly without question. Records show that the
Sandiganbayan actively took part in the questioning of a defense witness
and of the accused themselves. The questions of the court were in the
nature of cross examinations characteristic of confrontation, probing and
insinuation. Tabuena and Peralta may not have raised the issue as an
error, nevertheless no impediment for the court 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 whatever they are made the subject of assignments of
error or not.