1. People v.

Cruz 99 Phil 618 Cant find

Title Four
CRIMES AGAINST PUBLIC INTEREST
Chapter One- FORGERIES
Section One. Forging the seal of the Government of the
Philippine Islands, the signature or stamp of the Chief Executive.
Art. 161. Counterfeiting the great seal of the Government of the Philippine Islands, forging the signature or stamp of the
Chief Executive
Art. 162. Using forged signature or counterfeit seal or stamp.
Section Two. Counterfeiting Coins
Art. 163. Making and importing and uttering false coins.
Art. 164. Mutilation of coins; Importation and utterance of mutilated coins.
Art. 165. Selling of false or mutilated coin, without connivance.

Section Three. Forging treasury or bank notes, obligations and securities; importing and uttering false or
forged notes,obligations and securities
Art. 166. Forging treasury or bank notes on other documents payable to bearer; importing, and uttering such false or
forged notes and documents.
1. Del Rosario v. People 113 Phil 626 -166
Art. 167. Counterfeiting, importing and uttering instruments not payable to bearer.
Art. 168. Illegal possession and use of false treasury or bank notes and other instruments of credit.
Art. 169. How forgery is committed.

Section Four. Falsification of legislative, public, commercial, and private documents, and wireless, telegraph,
and telephone message.
Art. 170. Falsification of legislative documents.
Art. 171. Falsification by public officer, employee or notary or ecclesiastic minister.
Art. 172. Falsification by private individual and use of falsified documents.

2. US v. Orera 11 Phil 596 -172

3. US v. Asensi 34 Phil 750 -172
4. US v. Agnis 47 Phil 945 -172
5. Furia v. Court of Appeals 101 Phil 623 -172
6. Bermejo v. Barrios 31 SCRA 764 -172

Art. 173. Falsification of wireless, cable, telegraph and telephone messages, and use of said falsified messages.

Section Five. Falsification of medical certificates,certificates of merit or services and the like.
Art. 174. False medical certificates, false certificates of merits or service, etc.
Art. 175. Using false certificates.

Section Six. Manufacturing, importing and possession of instruments or implements intended for the
commission of falsification.
Art. 176. Manufacturing and possession of instruments or implements for falsification.

Chapter Two- OTHER FALSIFICATIONS

Sec. One. Usurpation of authority, rank, title, and improper use of names, uniforms and insignia.
Art. 177. Usurpation of authority or official functions.
Art. 178. Using fictitious name and concealing true name.
Art. 179. Illegal use of uniforms or insignia.

Section Two. False testimony

Art. 180. False testimony against a defendant.
7. US v. Aragon 5 Phil 469 -180
8. US v. Bautista 67 Phil 518 -180-181
9. People v. Maneja 72 Phil 256 -180

10. People v. Dasig et al 93 Phil 618 -180

Art. 181. False testimony favorable to the defendants.
Art. 182. False testimony in civil cases.
Art. 183. False testimony in other cases and perjury in solemn affirmation.
11. US v. Ballena 18 Phil 382 - 183
12. People v. Calero 61 Phil 121 -183
13. People v. Pudol 66 Phil 365 183
14. People v. Abaya 74 Phil 59 -183

Art. 184. Offering false testimony in evidence.

Chapter Three
F R AU D S
Section One. Machinations, monopolies and combinations
Art. 185. Machinations in public auctions.
15. People v. Kapunan 45 Phil 482 - 185

Art. 186. Monopolies and combinations in restraint of trade.

Section Two. Frauds in commerce and industry

Art. 187. Importation and disposition of falsely marked articles or merchandise made of gold, silver, or other precious
metals or their alloys.
Art. 188. Subsisting and altering trade-mark, trade-names, or service marks.
Art. 189. Unfair competition, fraudulent registration of trade-mark, trade-name or service mark, fraudulent designation
of origin, and false description.

Title Five
CRIMES RELATIVE TO OPIUM AND OTHER PROHIBITED DRUGS
Art. 190-194 and Republic Act 9165 Comprehensive Dangerous Drugs Act of 2002

Title Six
CRIMES AGAINST PUBLIC MORALS
Chapter One- GAMBLING AND BETTING
Art. 195-199 and PRESIDENTIAL DECREE NO. 1602 SIMPLIFYING AND PROVIDING STIFFER PENALTIES
FORVIOLATIONS OF PHILIPPINE GAMBLING LAWS

Chapter Two- OFFENSES AGAINST DECENCY AND GOOD CUSTOMS

Art. 200. Grave scandal.
Art. 201. Immoral doctrines, obscene publications and exhibitions and indecent shows.
16. US v. Samaniego16 Phil 663 -201
17. People v. Kottinger45 Phil 352- 201
18. People v. Go Pin 97 Phil 418 -201
19. People v. Padan101 Phil 749 201

Art. 202. Vagrants and prostitutes; penalty.

Title Seven
CRIMES COMMITTED BY PUBLIC OFFICERS
Chapter One PRELIMINARY PROVISIONS
Art. 203. Who are public officers.
20. Maniego vs. People, 88 Phil 494 -203

Chapter Two MALFEASANCE AND MISFEASANCE IN OFFICE

Section One. Dereliction of duty
Art. 204. Knowingly rendering unjust judgment.
21. Evangelista v. Hon Baes 61 SCRA 475 -204
22. Yaranon v. Judge Rubio 66 SCRA 67 -204
23. US v. Gacutan 28 Phil 100 or 128? 204
Art. 205. Judgment rendered through negligence.

24. Carreon v. Flores 64 SCRA 238 -205

Art. 206. Unjust interlocutory order.
Art. 207. Malicious delay in the administration of justice.
25. Salcedo v. Alfeche 64 SCRA 552 -207
Art. 208. Prosecution of offenses; negligence and tolerance.
26. PaguIrigan v. Clavano 61 SCRA 401 208
27. Bagatua v. Lombos 104 Phil 392 -208

Art. 209. Betrayal of trust by an attorney or solicitor. Revelation of secrets.

_____________________________________________________________________________________
Art. 166. Forging treasury or bank notes on other documents payable to bearer; importing, and uttering such false or
forged notes and documents.
1. Del Rosario v. People 113 Phil 626 -166

EN BANC
[G.R. No.L-16806. December 22, 1961.]
SERGIO DEL ROSARIO, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent.
P. N. Stuart del Rosario for petitioner.
Solicitor General for respondent.
SYLLABUS
1.
CRIMINAL LAW; FORGERY; ERASURE AND ALTERATION OF FIGURES IN GENUINE TREASURY
NOTES. The possession of genuine treasury notes of the Philippines any of "the figures, letters,
words or signs contained" in which had been erased and/or altered, with knowledge of such
erasure and alteration, and with the intent to use such notes of the Philippines, is punishable
under Art. 168 in relation to Art, 166, subdivision (1), of the Revised Penal Code. (U.S., vs.
Gardner, 3 Phil., 398; U.S., vs. Solito 36 Phil., 785)
DECISION
CONCEPCION, J p:
Accused of counterfeiting Philippine treasury notes, Sergio del Rosario, Alfonso Araneta and
Benedicto del Pilar were convicted by the Court of First Instance of Davao of illegal possession of

said forged treasury notes and sentenced to an indeterminate penalty ranging from 8 years and
1 day to 10 years and 1 day of prisin mayor, and to pay a fine of P5,000, without subsidiary
imprisonment in case of insolvency, as well as a proportionate part of the costs. On appeal, the
judgment was affirmed by the Court of Appeals, except insofar as the maximum of said
indeterminate penalty which was increased to 10 years, 8 months and 1 day of prisin mayor.
The case is before us on appeal by certiorari taken by Sergio del Rosario.
It appears that, after showing to complainant Apolinario del Rosario the Philippine one-peso bills
Exhibits C, E and G and the Philippine two-peso bill Exhibit H, and inducing him to believe that
the same were counterfeit paper money manufactured by them, although in fact they were
genuine treasury notes of the Philippine Government one of the digits of each of which had been
altered and changed, the aforementioned defendants had succeeded in obtaining P1,700.00 from
said complainant, in the City of Davao, on June 23, 1955, for the avowed purpose of financing the
manufacture of more counterfeit treasury notes of the Philippines. The only question raised in
this appeal is whether the possession of said Exhibits C, E, G and H constitutes a violation of
Article 168 of the Revised Penal Code. Appellant maintains that, being genuine treasury notes of
our government, the possession thereof cannot be illegal. We find no merit in this pretense.
It is not disputed that a portion of the last digit 9 of Serial No. F-79692619 of Exhibit C, had been
erased and changed so as to read 0 and that similar erasures and changes had been made in the
penultimate digit 9 in Serial No. F-79692691 of Exhibit E, in the last digit 6 in Serial No.D-716326
of Exhibit G, and in the last digit 9 of Serial No.D-716329 of Exhibit H.
Articles 168 and 169 of the Revised Penal Code read:
"ART. 168. Illegal possession and use of false treasury or bank notes and other instruments of
credit. Unless the act be one of those coming under the provisions of any of the preceding
articles, any person who shall knowingly use or have in his possession, with intent to use any of
the false or falsified instruments referred to in this section, shall suffer the penalty next lower in
degree than that prescribed in said articles.
"ART. 169. How forgery is committed. The forgery referred to in this section may be
committed by any of the following means:
1.
By giving to a treasury or bank note or any instrument payable to bearer or to order
mentioned therein, the appearance of a true and genuine document.
2.
By erasing, substituting, counterfeiting or altering by any means the figures, letters, words
or signs contained therein."
It is clear from these provisions that the possession of genuine treasury notes of the Philippines
any of "the figures, letters, words or signs contained" in which had been erased and/or altered,
with knowledge of such erasure and alteration, and with the intent to use such notes, as they
were used by petitioner herein and his co-defendants in the manner adverted to above, is
punishable under said Article 168, in relations to Article 166, subdivision (1), of the Revised Penal
Code (U.S. vs. Gardner, 3 Phil., 398; U.S. vs. Solito, 36 Phil., 785).
Being in accordance with the facts and the law, the decision appealed from is, accordingly,
affirmed, with costs against petitioner Sergio del Rosario. It is so ordered.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L. Barrera, Dizon, and De Leon, JJ.,
concur.

Paredes, J., took no part.

Section Four. Falsification of legislative, public, commercial, and private documents, and wireless, telegraph,
and telephone message.
Art. 170. Falsification of legislative documents.
Art. 171. Falsification by public officer, employee or notary or ecclesiastic minister.
Art. 172. Falsification by private individual and use of falsified documents.
2. US v. Orera 11 Phil 596 -172

EN BANC
[G.R. No. 3810.October 18, 1907.]
THE UNITED STATES, plaintiff-appellee, vs. DAMIAN ORERA (alias KIM CUAN), defendantappellant.
Del-Pan, Ortigas& Fisher for appellant.
Attorney-General Araneta for appellee.
SYLLABUS
1.
FALSIFICATION OF PRIVATE DOCUMENT; THEATER TICKETS. The counter-feiting and
simulation of the signature and rubric and the imitation of the figures, letters, and other
characters contained in a Chinese theater ticket to the damage of the company issuing the
same, constitutes the crime of falsification of a private document, punishable under the
provisions of article 304 of the Penal Code.
2.
CRIMINAL PRACTICE AND PROCEDURE; COMPLAINT. Where the complaint was restricted
to one ticket only, the accused can not be convicted of falsification of six tickets, and judgment
must conform to the charge.
DECISION
ARELLANO, C.J p:
Damian Orera (alias Kim Cuan) was convicted by the Court of First Instance of the city of Manila,
of the crime charged in the complaint, namely, of having falsified, to the damage of a Chinese
theatrical company of the Philippine Islands, called EngNing, "a Chinese theater ticket which
entitled the bearer thereof to admission to a performance held in the theater of the above
company at Manila, on the 7th of October, 1906, by counterfeiting and simulating the signature
and rubric of EngNing on the said ticket, and stamping, writing and placing on the said ticket the
same figures, letters, dragons, ornaments, and signatures, as placed by EngNing and the abovementioned Chinese theatrical company . . . " The accused was sentenced to be imprisoned at the

Insular Prison of Bilibid for the period of six months and one day, to pay a fine of 625 pesetas,
Philippine currency, and the costs of the suit, from which judgment the accused appealed.
The appeal having been heard, this court holds:
1.
That, in effect, as argued by the appellant, he could not be convicted of the falsification of
six tickets, as declared and held in the judgment appealed from, inasmuch as the complaint was
restricted to one ticket only.
2.
That the court below did not err in qualifying such ticket as a document in order to
prosecute and punish the crime of falsification, the subject-matter of the complaint, because if,
according to the authority cited by the appellant, a document is "a deed, instrument or other
duly authorized paper by which something is proved, evidenced or set forth," and a private
document is, according to another authority cited by the same appellant, "every deed or
instrument executed by a private person, without the intervention of a public notary or of other
person legally authorized, by which document some disposition or agreement is proved,
evidenced or set forth," it follows that the ticket in question, being an authorized document
evidencing an agreement for the rent of a place in a theater to enable the possessor to witness a
theatrical performance, is a private document.
The error has been in the penalty imposed, an error which necessarily must be remedied by this
court in the present appeal, in order that the judgment may be in conformity with the law. Said
penalty, according to the provisions of article 304 of the Penal Code, should be that of
presidiocorreccion in its minimum and medium degrees, and a fine, plus the corresponding
indemnification for the damage caused, which in the present case was P1 the price of the true
ticket.
We, therefore, sentence Damian Orera (alias Kim Cuan) to one year, eleven months, and twentyone days of presidiocorreccional, and to pay a fine of 625 pesetas, as imposed in the judgment,
With the accessory penalty provided for in article 58, the indemnification of P1 to the offended
party, or, in default thereof, to subsidiary imprisonment, and the payment of the costs of both
instances. So ordered.
Torres, Johnson, Willard and Tracey, JJ., concur.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

3. US v. Asensi 34 Phil 750 -172

SECOND DIVISION
[G.R. No. 11165. August 15, 1916.]
THE UNITED STATES, plaintiff-appellee, vs. MANUEL B. ASENSI, defendant-appellant.

Herrero & Masigan for appellant.

Attorney-General Avancea for appellee.
SYLLABUS
1.
OBLIGATIONS VOLUNTARILY ASSUMED; COURTS WILL NOT PERMIT PARTIES TO DENY.
When a person voluntarily assumes an obligation and actually undertakes to perform it and does
perform it for a number of years, the courts will not hear him say that he was performing said
obligation, thus voluntarily assumed, without authority.
2.
ESTAFA; DEMAND FOR RETURN OF MONEY OR PROPERTY FRAUDULENTLY RECEIVED,
NECESSITY OF. When money or property is received by means of fraud and false
representations, a demand for the return of the same is not necessary in order to constitute the
crime of estafa. Any person who, to the prejudice of another, shall convert or misappropriate
money, goods, or other personal property, received by such person for safe-keeping, or on
commission, or for administration, or under any other circumstances giving rise to the obligation
to make delivery of or to return the same, etc., is guilty of the crime of estafa within the
provisions of paragraph 5 of article 535, in its relation with article 534, of the Penal Code.
3.
PUBLIC DOCUMENT; WHAT CONSTITUTES. The Penal Code contains no definition of what
constitutes a public document. The following, however, have been held to be public documents:
(a) Any instrument authorized by a notary public; (b) any instrument authorized by a competent
public official with the solemnities required by law; (c) forms prepared by the Auditor of the
Philippine Islands in accordance with Act No. 90 of the Philippine Commission; (d) receipts issued
by the department of assessments and collections of the city of Manila for taxes collected; (e)
burial permits issued by the Board of Public Health of the city of Manila; (f) receipts prescribed by
the Government to be issued upon the receipt of money for public purposes; (g) the official cashbook kept by the disbursing officer of the coast guard and transportation department; (h) a cashbook of a public official, in which entries are made of accounts of public moneys received; (i) an
official receipt printed in accordance with the standard forms required by the Government.
DECISION
JOHNSON, J p:
This defendant was charged with the crime of estafa, committed with the falsification of a
document. The complaint alleged:
"That on and many years before the 7th day of April, 1914, the said Manuel B. Asensi was and
had been a trusted employee of the Compania General de Tabacos de Filipinas, a foreign
corporation domiciled in the city of Manila and duly authorized to engage in business in the
Philippine Islands; that, as such employee of the above-named corporation, it was his duty to find
out, at the end of every quarter, the total amount of the sales of the goods and merchandise
made during such period by the said corporation, in order to declare and certify with his
signature said amount before the Collector of Internal Revenue or his duly authorized agents,
making said declaration and certification on the coupons attached with the patents, of which
they form an integral part, issued annually by the Collector of Internal Revenue in favor of the
said corporation; that said accused, as such employee of the above-named Compania General de
Tabacos de Filipinas, was also bound to pay, with the funds of the said corporation supplied him
for said purpose, the Internal Revenue taxes which it had to pay on the amount of the sales

above referred to; that, as the accused well knew, during the first quarter of the year 1914, the
sales of goods and merchandise made in Manila by the said corporation, amounted to the sum of
P257,662.87, Philippine currency; that on the 6th day of April, 1914, the said accused asked of,
and obtained from, the said corporation a check for the sum of P858.88, Philippine currency,
payable to the order of the Collector of Internal Revenue, with which to pay the said Collector of
Internal Revenue for the tax corresponding to the sales made during the first quarter of 1914,
which tax amounted exactly to P858.88 at the rate of 1/3 of one per cent of the true amount of
the sales referred to; that on the 7th day of April, 1914, the said accused went to the office of the
Collector of Internal Revenue, in the city of Manila, and there presented coupon No. 1 which is an
integral part of the patent to which it was attached, No. 2751, corresponding to the year 1914,
issued by the Collector of Internal Revenue to the Compania General de Tabacos de Filipinas,
wherein, failing to declare the truth in the statement of the facts, at this same time and place,
did, willingly, unlawfully, and criminally state, declare and certify falsely, with his signature, that
the amount of the sales made by the Compania General de Tabacos de Filipinas (of which the
said accused was a trusted employee), during the first quarter of 1914, was P137,662.78; and
that the Internal Revenue tax which the corporation should pay on the said amount at the rate of
1/3 of one per cent, was only P458.88; that the said accused, through the false statement made
by him in the above-mentioned coupon No. 1 of patent No. 2751, induced and persuaded the
Internal Revenue officers to believe the declarations, statement and certification made by him in
the said instrument, and the said officers, acting under such belief, accepted, out of the sum of
P858.88 stated in the check drawn to the order of the Collector of Internal Revenue by the
Compania General de Tabacos de Filipinas and which the accused delivered to them, only the
sum of P458.88 as the tax due on the sales declared, stated and certified to by the accused
himself, in the aforesaid form, time and place, at the rate of 1/3 of one per cent, over the said
amount of the sales, returning, as they in fact did return, in cash, the difference between said
amount and that stated in the check referred to, that is, the sum of P400, Philippine currency;
and the said accused in the time and place referred to, namely, on April 7, 1914, in the city of
Manila, once he was in possession of the said sum of P400, Philippine currency, willingly,
unlawfully, and criminally and with the intent to defraud the said Compania General de Tabacos
de Filipinas, did appropriate the same for himself, thus causing damages and injuries to the said
corporation amounting to the said sum of P400, Philippine currency, equivalent to 2,000 pesetas.
"An act committed in violation of law."
Upon said complaint the defendant was duly arrested, arraigned, tried, found guilty of the crime
charged, and was sentenced by the Honorable Richard Campbell, judge, to be imprisoned for a
period of ten years and one day of presidio mayor, to pay a fine of P2,500 to suffer the accessory
penalties prescribed by law, and to pay the costs.
From that sentence the defendant appealed to this court and made several assignments of error.
From an examination of the record we find that the following facts are clearly proven, in fact,
they are not seriously denied:
First. That the defendant had been an employee of the offended corporation for a long period
prior to the 7th of April, 1914, and during said employment had been charged with the
responsibility of taking care of various branches or departments or work of said corporation.
Second. That the offended corporation had been engaged for a long period of years in the city of
Manila in the sale of merchandise of various classes, on a large scale, and was still so engaged
during the year 1914.

Third. That the offended corporation being a merchant, engaged in the sale of merchandise, was
obliged, for the purpose of satisfying the requirements of the Internal Revenue Law, to furnish a
certified statement to the Collector of Internal Revenue, showing the amount of sales for each
and every quarter of each year.
Fourth.
That the defendant was charged with the duty, on behalf of the said corporation, of
making out said certificate showing the amount of sales of said corporation for each and every
quarter, and of obtaining a check therefor from the cashier of said corporation, for the purpose of
paying the amount of taxes due upon said sales for a particular quarter.
Fifth. That in compliance with said duty and obligation as such employee of said offended
corporation, the defendant did, on or about the 7th of April, 1914, prepare and sign the
certificate required by the internal revenue department, in which he certified that the gross
business of said offended corporation, subject to internal-revenue tax, ending March 31, 1914,
was P137,662.87, and that the amount of money which was necessary to pay said merchant's
tax for said period was P458.88. (See Exhibit B.)
Sixth. That, notwithstanding said certificate showing the gross business subject to internalrevenue tax, done by said offended corporation, the defendant represented to the cashier of said
offended corporation, on the back of Exhibit C, that the amount of gross business subject to
internal revenue tax was the sum of P257,662.87, and that the amount of money necessary to
pay said tax was the sum of P858.88. (See Exhibit C.)
Seventh.
That upon the representation made by Exhibit C, the cashier of the offended
corporation executed and delivered to the defendant a check, marked Exhibit D, for the sum of
P858.88. made payable to the Collector of Internal Revenue, for the purpose of purchasing the
stamps or paying the tax which was due, upon the representation made by the defendant in
Exhibit C. (See Exhibit C.)
Eighth.
That later the defendant, with said certificate Exhibit B, and said check, Exhibit D,
went to the office of the Collector of Internal Revenue, and there purchased the number of
stamps sufficient to pay the tax upon the gross amount of business, represented by said Exhibit
B, by delivering to the Collector of Internal Revenue the check Exhibit D. The certificate (Exhibit
B) showed that the amount of taxes due, for which stamps had to be purchased, amounted to
P458.88. The Internal revenue Collector delivered to the defendant stamps amounting to
P458.88, and paid to him in cash the difference between said amount and the amount of said
check, or the sum of P400.
Ninth. That the P400 received by the defendant, as indicated by the preceding paragraph, was
received through the false representation made by the defendant to the cashier of the offended
corporation and by virtue of his misrepresentation made to the cashierr of said corporation.
(Exhibit C.)
Tenth. That the certificate marked Exhibit B, made by the defendant, was false, in that it
represented that the gross business of said offended corporation subject to internal-revenue tax
for the period ending March 31, 1914, was P137,662.87, and that the defendant well knew that
said amount did not represent the amount of the gross business done by said corporation.
Eleventh.
That the defendant has neglected and refused to return to the offended corporation
the said P400 and has willfully appropriated the same to his own use.

Twelfth.
That by reason of the false representations made by the defendant, not only in the
certificate marked Exhibit B, but in various others, covering a number of years, the offended
corporation was obliged to pay to the Collector of Internal Revenue a great many thousand pesos
to cover its unpaid taxes, as well as to pay a fine for its failure to comply strictly with the
provisions of the law.
The appellant, under his first assignment of error, attempts to show, and cites many provisions of
the different codes in force here in support of his argument, that there was no obligation resting
upon the defendant to make the certificate Exhibit B, and he was therefore not liable, even
admitting that he had falsified the same. The record shows that the defendant had been
designated by the offended corporation as its representative, for the purpose of ascertaining the
gross amount of business done by it, and upon which it was required by law to pay taxes for each
quarter. The corporation itself, not being able to act for itself, was under the necessity of having
an agent or representative to act for it. The defendant accepted the responsibility imposed upon
him by the offended corporation. He voluntarily assumed the obligation to perform the duty
imposed upon him, and actually undertook to perform said duty, and had, for a number of years,
made out the required certificate for and on behalf of the corporation. We do not believe that it is
within his mouth now to say that he had not been appointed to perform that particular duty in
accordance with the provisions of law. The courts will not now hear him say that he was
performing the duty thus voluntarily assumed, without authority of law. Taking into consideration
the relation of the offended corporation to the defendant, and the particular duty which the
defendant voluntarily assumed, we are of the opinion that the sentence of the lower court should
not be modified by reason of the error alleged in the first assignment.
In the second assignment the appellant argues that, inasmuch as the proof fails to show that the
offended corporation had demanded a return of the said P400, and it not appearing that the
defendant had refused to return the same, he was not guilty of the crime of estafa. The record
shows that the defendant obtained possession of the said P400 by means of fraud and false
representations. When money or property is received by means of fraud or false representations,
a demand for the return of the same is not necessary in order to constitute the crime of estafa.
Any person who, to the prejudice of another, shall convert or misappropriate money, goods, or
other personal property, received by such person for safe keeping, or on commission, or for
administration, or under any other circumstances, giving rise to the obligation to make delivery
of or to return the same, etc., shall be guilty of the crime of estafa and shall be punished in
accordance with the provisions of paragraph 5 of article 535, in its relation with article 534 of the
Penal Code. Considering the fraud practiced by the defendant upon the offended corporation and
the fact that he obtained the money in question by means of false representations, we are of the
opinion and so hold, that a demand for the return of the same and a refusal by him so to do is
not a necessary prerequisite as an element of the crime charged against the defendant. We find
nothing in the second assignment of error sufficient to justify a modification of the sentence of
the lower court.
With reference to the third assignment of error, the appellant contends that the document
falsified (Exhibit B) is not a public document. The Penal Code contains no definition of what
constitutes a public document. This Court held in the case of Cacnio vs. Baens (5 Phil. Rep., 742)
that any instrument authorized by a notary public or a competent public official, with the
solemnities required by law, was a public document. We have also held that the blank forms
prepared by the Auditor of the Philippines Islands, in accordance with Act No. 90 of the Philippine
Commission, are public documents. (U.S. vs. Carrington, 5 Phil. Rep., 725.) We have also held
that a receipt issued by the department of assessments and collections of the city of Manila, for

taxes collected, is a public document, and one who falsifies the same is guilty of the falsification
of a public document (U.S. vs. Leyson, 5 Phil. Rep., 447.)
In the case of United States vs. Mateo (5 Phil. Rep., 462) we held that a burial permit issued by
the Board of Public Health of the city of Manila is a public document, within the meaning of that
term as used in article 301 of the Penal Code.
In the case of United States vs. Vy Guico (12 Phil. Rep., 209) we held that the official receipt
prescribed by the Government to be issued upon the receipt of money for public purposes is a
public document, as that term is used in articles 300 and 301 of the Penal Code.
In the case of United States vs. Weems (7 Phil. Rep., 241) we held that an official cashbook kept
by the disbursing officer of the Coast Guard and Transportation Department, was a public or an
official document, in the sense in which those words are used in article 300 of the Penal Code.
In the case of United States vs. Barrios (10 Phil. Rep., 366) we held that the cashbook of a public
moneys received, is also public document, as that term is used in article 300 of the Penal Code.
In the case of United States vs. Vy Guico (supra), an official receipt was held to be a public
document, for the reason that it was invested with the character of an official document by
reason of the fact that it was printed in accordance with the standard forms required by the
Government.
In the present case the document in question (Exhibit B) was printed in accordance with
Schedule C and furnished to merchants, in accordance with the provisions of the law of 1904.
This form was evidently prescribed by the internal revenue department of the Government.
When presented to the internal revenue department of the Government, it became a part of the
records of that office and in our judgment is fully invested with the character of an official or
public document, as those terms are used in articles 300 and 301 of the Penal Code.
From all of the foregoing facts, we are of the opinion that the evidence adduced during the trial
of the cause shows that the defendant is guilty of the crime charged in the complaint, and should
be sentenced in accordance with the provisions of article 301 of the Penal Code, in its relation
with article 89 of the same code. The sentence of the lower court being fully sustained by the
evidence and the law, we are of the opinion and so hold that the same should be and is hereby
affirmed, with costs. So ordered.
Torres, Trent, and Araullo, JJ., concur.

4. US v. Agnis 47 Phil 945 -172

FIRST DIVISION
[G.R. No. 19676. February 7, 1923.]

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant, vs. GERARDO AGNIS, defendantappellant.
Felipe Ysmael for appellant.
Attorney-General Villa-Real for appellee.
SYLLABUS
1.
CRIMINAL LAW; PAMPHLETS WHICH ARE NOT DOCUMENTS OR PAPERS UNDER ARTICLE 360
OF THE PENAL CODE. Pamphlets which do not evidence nor are to evidence a thing,
agreement or disposition, being rather merchandise, cannot be considered as the documents or
papers referred in article 360 of the Penal Code. (U.S. vs. Orera, 11 Phil., 596.)
2.
ID.; ID.; OPEN PACKAGE THE TAKING AWAY OF WHICH DOES NOT VIOLATE EITHER
SECTIONS 1952 AND 2757, SUBSECTION (E) OF THE ADMINISTRATIVE CODE, OR ARTICLE 362 OF
THE PENAL CODE. A package containing such pamphlets, which was left by the sender thereof
open on one end, cannot be considered as a closed package, within the meaning of section 1952,
in connection with 2757, subsection (e), of the Administrative Code, or article 362 of the Penal
Code.
3.
ID.; ID.; ARTICLE 360 OF THE PENAL CODE; SECTION 1952 OF ADMINISTRATIVE CODE;
POSTMASTER; PAMPHLETS. A postmaster who, having received in his capacity as such said
package open on one end, containing the aforesaid pamphlets, carries it out of the office, takes
the pamphlets therefrom, and keeps them in his house, does not violate article 360 or 362 of the
Penal Code, nor section 1952 of the Administrative Code, in connection with 2757, subsection
(e), of said Code. Neither can he be convicted of theft in view of the fact that he is not accused of
such a crime in the information, and of the lack of evidence showing that he has acted with
intent of gain.
DECISION
ROMUALDEZ, J p:
While the accused was on May 9, 1921, discharging the function of his office as postmaster of
the town of Dipolog, Zamboanga, a C.O.D. package arrived at that post-office from the "Little
Leather Library" of New York, addressed to R. Vic Oliva. The accused notified the sendee several
times, but the latter could not make the required payment in accordance with the nature of the
correspondence, and asked him to advance the amount and to retain it until he could reimburse
him. The accused retained the package without paying for it, and about July 28th of that year, he
opened the package which proved to contain printed pamphlets which he carried to his house to
show them to his sister.
At the inspection of that office on the 30th day of that month of July, the officer who made the
inspection, Eugenio de Mesa, learned that there was such correspondence in that post-office, but
that the package was not in the safe where it should have been kept. Asked as to the
whereabouts of the package, the defendant brought it to the office by order of the inspector,
saying that he had carried it to his house to show to his sister the pamphlets contained therein.
The rules of the post-office as to correspondence of such a nature are to the effect that if a C. O.
D. matter is not claimed and paid for by the sendee within sixty days from receipt, it must be
returned to the sender.

If the pamphlets in question can be considered as the documents or papers contemplated in

article 360 of the Penal Code, the application to the case now before us of this legal provision
would be obvious. This court in the case of United States vs. Orera (11 Phil., 596), defined the
terms "documents" or "papers" employed in said article 360 of the Penal Code, as: "'A deed,
instrument or other duly authorized paper by which something is proved, evidenced or set forth,'
. . . 'every deed or instrument executed by a private person, without the intervention of a public
notary or of other person legally authorized, by which document some disposition or agreement
is proved, evidenced or set forth,'. . ."
The pamphlets in question cannot be said to evidence a fact, agreement or disposition. They are
rather merchandise as any other article usually sent by C.O.D. mail. For this reason we think that
the act complained of does not come within the sanction of said article 360 of the Penal Code.
Neither is section 1952 of the Administrative Code, in connection with 2757, subsection (e), of
said Code applicable to it, nor is article 362 of the Penal Code, because it does not appear from
the evidence that the package in question was closed; on the contrary it appears that it could be
opened on one end.
Nor can the act complained of be held to constitute theft, since it is not alleged in the
information, nor was it proven, that the accused took the package with intent of gain.
These are in substance the remarks of the Attorney-General, which we find correct, wherefore
said officer recommends the dismissal of the case and the acquittal of the defendant.
We find this petition to be well grounded, and the judgment appealed from is hereby reversed
and the appellant acquitted with the costs de oficio. So ordered.
Araullo, C.J., Street, Malcolm, Avancea, Villamor, Ostrand, and Johns, JJ., concur.

5. Furia v. Court of Appeals 101 Phil 623 -172

SECOND DIVISION
[G.R. No.L-9007. May 29, 1957.]
GREGORIO FURIA, petitioner, vs. COURT OF APPEALS, respondent.
Jose V. Rosales for appellant.
Assistant Solicitor General Jaime de los Angeles and Solicitor Lauro C. Maiquez for appellee.
SYLLABUS
1.
CRIMINAL LAW; ESTAFA; EVIDENCE; WHERE INFORMATION CHARGES CONSPIRACY, THE
EVIDENCE TO PROVE CONSPIRACY MAY NOT BE OBJECTED TO. The evidence for the
prosecution showed that it was S. M., an employee of the Bureau of Posts, and S. A. who signed

the check to identify the signature of the payee upon the petitioner's assurance that the fictitious
woman was the payee and that the signature written on the check was hers. Although said
evidence is at variance with the fact alleged in the information that the petitioner together with
S. M. signed on the back of the check to identify the signature of the fictitious payee, yet as the
information charges conspiracy between the defendants to commit the crime, the evidence for
the prosecution to show and prove such conspiracy could not be objected to and the overruling
of the objection is not a reversible error. Had it not been for the introduction by the petitioner of
the fictitious woman to his officemate S. A. who was assured by the petitioner that the fictitious
woman was the payee of the check, neither S. A. nor S. M. would have signed on the back of the
check to identify the signature of fictitious woman as payee. The identification of the latter and
her signature made possible the cashing of the check and the misappropriation of the amount by
the petitioner and the fictitious woman other than the real payee. The crime committed is the
complex crime of estafa by means of falsification of an official and commercial document defined
and penalized in articles 315 and 172 of the Revised Penal Code.
DECISION
PADILLA, J p:
This is an appeal by certiorari under Rule 46 to review a judgment of the Court of Appeals.
The petitioner was charged in the Court of First Instance of Manila with estafa thru falsification of
a public, official and commercial document in an information filed by the Office of the City Fiscal
(criminal case No. 19102). After trial the Court found him guilty of the crime defined and
punished under article 166, in connection with article 315, of the Revised Penal Code, and
sentenced
. . . him to suffer an indeterminate penalty of from SIX (6) YEARS of prision correccional to EIGHT
(8) YEARS and FOUR MONTHS of prision mayor, to pay a fine of P2,000, to indemnify the
offended party in the amount of P384.96, without further subsidiary imprisonment in case of
insolvency, and to pay one-fourth of the costs. (Annex A.)
On appeal, the Court of Appeals convicted him of estafa through falsification of an official and
commercial document, as penalized in article 315, paragraph 3, subsection 2, in connection with
articles 172 and 48, as amended, of the Revised Penal Code, and sentenced him to suffer
. . . from two (2) years and four (4) months to five (5) years, two (2) months and eight (8) days of
prision correccional, to pay a fine in the sum of P2,000, to indemnify the offended party in the
amount of P384.96, or to suffer the corresponding subsidiary imprisonment in case of insolvency
of both fine and indemnity, to the accessories of the law and to pay in the first instance 1/4 of
the costs. (Annex B.)
The petitioner contends that the Court of Appeals committed the following errors:
1.
The respondent erred in ignoring entirely the first error assigned by the appellant in his
brief to the effect that the trial court erred in allowing the prosecution to present evidence in (at)
variance with the allegations in the information over the objection of the defense;
2.
The respondent erred in declaring that the amount of the check in question was paid to
the supposed payee;

3.
The respondent erred in holding the appellant criminally and civilly liable for an alleged
misrepresentation to the witnesses, Severino Aznar and Simeon Monzon;
4.

The respondent erred in finding the appellant guilty as charged;

5.
The respondent erred in not imposing the minimum of the minimum of the indeterminate
penalty; and
6.

The respondent erred in not granting the motion for reconsideration filed by the appellant.

The information filed against the petitioner and his co- defendants is as follows:
That on or about the 20th of June, 1949, in the city of Manila, Philippines, the said accused,
conspiring and confederating together and helping each other, did then and there wilfully,
unlawfully and feloniously defraud one Ines B. Bentoso and/or the Bureau of Posts, a government
entity under the Department of Public Works and Communications of the Republic of the
Philippines in the following manner, to wit: the said accused Severino Aznar and Juana Doe, the
latter with identity and whereabouts still unknown, having somehow obtained or come into
possession of a United States Depository check No. 917,109 dated May 11, 1949 in the amount
of P384.96 payable to said Ines B. Bentoso, which is a public, official and commercial document
in that the same is a written act of the sovereign authority of the United States, a foreign country
and recognized as a negotiable instrument by the Mercantile Law, did then and there wilfully,
unlawfully and feloniously write, print, imitate and forge or cause to be written, printed, imitated
and forged the signature of said Ines B. Bentoso at the back of said check and the said accused
Gregorio Furia and Simeon Monzon, the latter an employee in the Manila Post Office who taking
advantage of his position thereat he being known to his co-employees in said office who in one
way or another has something to do with the cashing of said check, signed their signatures at
the back of said check as identifiers thereof, thus causing it to appear that the said Ines B.
Bentoso duly signed said U. S. Depository check No. 917,109 and that she (Ines B. Bentoso) took
part in the transaction, although they knew she did not, thereby making untruthful statements in
the narration of facts; that as soon as said U. S. Depository check No. 917,109 had been falsified
in the manner just described, the said accused, with intent to profit thereby and in furtherance of
their conspiracy introduced the said accused Juana Doe as the real Ines B. Bentoso to the teller
of the Postal Savings Bank who wanted her check to be cashed, as in fact the said check was
cashed for the amount of P384.96, they (all of them) knowing fully well that the said check had
not been signed by the payee thereof, Ines B. Bentoso, neither has she authorized anyone of
them to act for her, and it is only a forgery; and the said accused, once in possession of said cash
amount of P384.96, did then and there wilfully, unlawfully and feloniously misappropriate,
misapply and convert the said amount to their own personal use and benefit, to the damage and
prejudice of said Ines B. Bentoso and/or the Bureau of Posts in the aforementioned sum of
P384.96, Philippine currency. (See Annex A.)
Both the trial and appellate courts found that
Sometime on June 21, 1949, Gregorio Furia, an employee of the Investigation Section of the
Manila Health Department, City Hall, Manila, approached his co-employee Severino Aznar and
introduced him to a woman whom he referred to as Ines Bentoso, allegedly a townmate of his.
Furia also told Aznar that this woman was the payee of check No. 917107 (Exhs. A & A-1) and
that he wanted him Aznar) to help said woman in cashing said check. Knowing somebody in the
Bureau of Posts, Aznar accompanied Furia and the alleged Ines Bentoso to that bureau and there
he sought Simeon Monzon, an employee of the Bureau of Posts, and introduced Furia as his

officemate and the woman who went with them as Ines Bentoso, the payee of the check. In order
to convince Aznar and Monzon of the true identity of Ines Bentoso, they presented a residence
certificate wherein the name "Ines Bentoso," of Agusan province, appeared. Forthwith Monzon
asked Aznar to sign the back of the check and afterwards he himself signed it also and then
accompanied the group to the window of the paying teller. There the full amount of the check,
P384.96, was paid to the woman (Exhs. A & A-1).
It also appears that Ines B. Bentoso, 38 years of age, widow, teacher and a resident of Mambalili,
Agusan, was a war damage claimant with card No. 100386 of the U.S.-Phil. War Damage
Commission and that the check in question was intended by said Commission to satisfy her claim
(Exh. B.). However, she did not receive the check and neither did she affix her signature thereon
or authorized anyone to do so for her, and she is positive that she does not know Severino Aznar
nor Simeon Monzon.
Because of these facts Severino Aznar, Gregorio Furia, Simeon Monzon and Juana Doe were
accused of estafa through falsification of a public and commercial document before the Court of
First Instance of Manila, but upon motion of the Fiscal, Severino Aznar and Simeon Monzon were
discharged from the information to be utilized as witnesses for the State. And as Juana Doe was
never arrested nor identified, the case proceeded only as against Gregorio Furia who, after
proper proceedings, was found guilty of the crime charged in the information and sentenced to
suffer the indeterminate penalty of from 6 years of prision correccional to 8 years and 4 months
of prision mayor, to pay a fine of P2,000, to indemnify the offended party in the amount of
P384.96, without subsidiary imprisonment in case of insolvency, and to pay 1/4 of the costs.
Not satisfied with this decision Gregorio Furia brought the matter up to Us on appeal and in this
instance his counsel assigns numerous errors as committed by the trial court, all of which having
to do either with the appreciation of the evidence against appellant or in finding him guilty and
sentencing him to the penalty aforementioned instead of acquitting him at least on reasonable
doubt.
There is no dispute that the check for P384.96 (Exhs. A & A-1) was intended for Mrs. Ines B.
Bentoso in payment of her aforementioned war damage claim, and there is no question either
that she has not signed, nor authorized anybody to sign said check and collect for her the
amount represented therein, nor in any way intervened in the cashing of said check. The only
facts subject of controversy are appellant's denial of having accompanied the woman posing
herself as Ines Bentoso to the Manila Post Office in cashing the check, and of having assured
Severino Aznar and Simeon Monzon that the woman with him, whose signature appears at the
back of check No. 917107, was Ines Bentoso. He contends that on June 20, 1949, a townmate of
his, by the name of Venancio Sianteng, approached him in his office together with a woman who
was introduced to him as Ines Bentoso; that Sianteng requested him to help them so that his
woman companion would cash her check; that he, in turn, accompanied them to Severino Aznar,
an officemate of appellant, and asked the former to extend to Sianteng and the woman a helping
hand; that Aznar promised him that he would try his best, after which the trio left for the Bureau
of Posts.
After due consideration of the evidence produced, We find that the version of the case, as
narrated by appellant, is utterly untenable. It appears on record that before contacting Aznar
appellant had already accompanied the supposed payee to the Bureau of Posts but was not able
to cash the check in question because he did not know anybody in said office, and appellant's
bare statement cannot prevail over the testimony of Simeon Monzon and Severino Aznar who

declared that appellant was present in the Bureau of Posts when the check in question was
cashed. If appellant's contention about the intervention of Sianteng were true, it would be
strange that he would not have presented this men as a witness in his behalf, or made him to be
called by the authorities, and We entertain no doubt that appellant was the mastermind who
engineered the whole scheme to defraud either Ines B. Bentoso or the Government.
Consequently, We cannot declare that the lower court committed any error in finding appellant
guilty of the crime he is charged with in the information.
True, contrary to what is alleged in the information, the trial and the appellate courts found that
the petitioner did not sign on the back of the check in question to identify the signature of the
fictitious woman as payee, but that he approached his co-employee Severino Aznar, introduced
to him the fictitious woman as the payee of the check, and enlisted Aznar's help to cash the
check, who introduced her to Simeon Monzon, an employee of the Bureau of Posts, who in turn
accompanied her to the window of the paying teller. It was Monzon and Aznar who signed the
check to identify the signature of the payee upon the petitioner's assurance that the fictitious
woman was the payee and that the signature written on the check was hers. Nevertheless,
although the evidence for the prosecution is at variance with the fact alleged in the information
that the petitioner together with Simeon Monzon signed on the back of the check to identify the
signature of the fictitious payee, yet as the information charges conspiracy between the
defendants to commit the crime, the evidence for the prosecution to show and prove such
conspiracy could not be objected to and the overruling of the objection is not a reversible error.
Had it not been for the introduction by the petitioner of the fictitious woman to his officemate
Severino Aznar who was assured by the petitioner that the fictitious woman was Ines B. Bentoso
and the payee of the check, neither Aznar nor Monzon would have signed on the back of the
check to identify the signature of the fictitious woman as payee. The identification of the latter
and of her signature made possible the cashing of the check and the misappropriation of the
amount by the petitioner and the fictitious woman other than the real payee.
The crime committed is the complex crime of estafa by means of falsification of an official and
commercial document defined and penalized in articles 315 and 172 of the Revised Penal Code.
The penalty provided for the more serious crime is prision correccional in its medium and
maximum periods which must be imposed in its maximum period pursuant to article 48 of the
Revised Penal Code, as amended, or from 4 years, 9 months and 11 days to 6 years of prision
correccional; and applying the Indeterminate Sentence Law the petitioner is sentenced to suffer
a minimum of 4 months and 1 day of arresto mayor and a maximum of 6 years of prision
correccional. Modified as to penalty only the rest of the judgment appealed from is affirmed, with
costs against the petitioner.
Bengzon, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and
Endencia, JJ., concur.

6. Bermejo v. Barrios 31 SCRA 764 -172

FIRST DIVISION

[G.R. No. L-23614. February 27, 1970.]

PEDRO M. BERMEJO, petitioner-appellant, vs. ISIDRO BARRIOS, ET AL., respondents-appellees.
{G.R. No. L-23615. February 27, 1970.]
JOVITA CARMORIN, petitioner-appellant, vs. ISIDRO BARRIOS, ET AL., respondents-appellees.
Pedro M. Bermejo for himself and accused Jovita Carmorin as petitioners-appellants.
Solicitor General Arturo A. Alafriz, Assistant Solicitor General Antonio G. Ibarra and Solicitor
Augusto M. Amores for respondents-appellees.
SYLLABUS
1.
CRIMINAL LAW; COURTS; CRIMES OF FALSIFICATION AND PERJURY WITHIN ORIGINAL AND
CONCURRENT JURISDICTION OF THE CITY COURT AND THE COURT OF FIRST INSTANCE.
Undoubtedly, the crime of falsification of a public or official document by a private individual,
punishable with prision correccional in its medium and maximum periods of which petitioner
Bermejo is charged in the city court of Roxas City in Criminal Case No. 4451, and the crime of
perjury punishable with arresto mayor in its maximum period to prision correccional in its
minimum period of which petitioner Carmorin is charged in Criminal Case No. 4452 before the
city court of Roxas City fall within the concurrent jurisdiction of the city court of Roxas City and
Court of First Instance of Capiz.
2.
ID.; ID.; APPEALS FROM COURT EXERCISING CONCURRENT JURISDICTION. Where the
municipal court has taken cognizance of a criminal case in its concurrent jurisdiction with the
Court of First Instance, appeal must be taken direct to the Court of Appeals or the Supreme
Court. Where the Court of First Instance has taken cognizance of such appeal in its appellate
jurisdiction and refused to elevate the case to the Court of Appeals, said Court of First Instance
acted without jurisdiction. This rule applies even if the order is not a judgment on the merits
because in cases of this nature the Court of First Instance exercises no supervisory jurisdiction
over the city court. The city court having concurrent jurisdiction acts with "like jurisdiction" as the
Court of First Instance. The decision therefore of the Court of First Instance of Capiz in Special
Civil Cases Nos. 2721 and 2723, now appealed to this Court, is null and void because said court
has no jurisdiction to take cognizance of those cases. The two special civil actions against the
City Judge and the City Fiscal of Roxas City should have been filed with the Court of Appeals in
aid of the latter's appellate jurisdiction over direct appeals from the decision or order of the city
court.
3.
ID.; DOCUMENT DEFINED. A "document" is defined as a deed, instrument or other duly
authorized paper by which something is proved, evidenced or set forth. Any instrument
authorized by a notary public or a competent public official, with the solemnities required by law,
is a public document.
4.
REMEDIAL LAW; PLEADING AND PRACTICE; PETITION FOR HABEAS CORPUS, A PUBLIC OR
OFFICIAL DOCUMENT. Considering that the petition for habeas corpus alleged the illegal
confinement, or deprivation of liberty, of one Soterania Carmorin, and that said petition was duly
subscribed and sworn to before Clerk of Court Leopoldo B. Dorado and filed with the Court of First
Instance of Capiz, forming, therefore, a part of the court records in said proceedings, it cannot be
disputed that said petition is a public or official document as contemplated in Articles 171 and
172 of the Revised Penal Code. Petitioner Bermejo, therefore, cannot say that he committed no

crime if it can be shown that, as charged in the information, he connived or conspired with a
certain Julia "Doe" in falsifying said petition by making it appear that Jovita Carmorin placed her
thumbmark therein when in fact she did not do so.
5.
ID.; ID.; CIRCUMSTANCES BELYIN LACK OF NOTICE TO BE PRESENT AT PRELIMINARY
INVESTIGATION, EFFECT; CASE AT BAR. Bermejo was not entirely blameless if the preliminary
investigation was conducted in his absence. It was he himself who set the date of the
investigation in his request for postponement, but he did not bother to come on the date he
fixed. Neither did he try to find out what action the city fiscal took on his request for
postponement, on any day before the date of the hearing set by him, although he is living in
Roxas City where the city fiscal holds his office. The information was filed five months later, at
least as to the status of his case. It is obvious that he failed to employ the standard of care or
reasonable diligence that is expected of him. If he did not have his day in court, it was because
of his own negligence. This Court had ruled that in the application of the principle of due process,
what is sought to be safeguarded is not lack of previous notice but the denial of opportunity to
be heard. Since petitioner Bermejo was afforded the opportunity to appear at the preliminary
investigation but did not take advantage of it, he has no one to blame but himself.
DECISION
ZALDIVAR, J p:
These two cases, being interrelated, are decided together.
These are appeals from the joint decision of the Court of First Instance of Capiz, rendered on June
3, 1964, dismissing two petitions for certiorari and prohibition with preliminary injunction: one
filed by petitioner Pedro M. Bermejo against City Judge Isidro Barrios and City Fiscal Quirico Abela
of Roxas City, docketed as Special Civil Case No. V-2721; and the other filed by petitioner Jovita
Carmorin against the same respondents, docketed as Special Civil Case No. V-2723.
In G.R. No. L-23614, petitioner Pedro M. Bermejo and Julia "Doe" (her identity at the time was
unknown) were charged in the city court of Roxas City, on August 22, 1963, of the crime of
falsification of public or official document in an information filed by the city fiscal. It was alleged
in the information that on or about the 25th day of February 1963, in Roxas City, the two
accused, being private individuals, conspired and confederated together and mutually helped
each other, and willfully and feloniously prepared and executed a document consisting of an
amended petition for habeas corpus entitled "Pedro M. Bermejo and Jovita Carmorin, petitioners,
vs. Jose M. Bernales and Wilfredo Bernales, respondents", which petition Pedro M. Bermejo signed
while Julia "Doe" placed her thumbmark over the name "Jovita Carmorin", which petition was
subscribed and sworn to by the two accused before the Clerk of Court and filed in the Court of
First Instance of Capiz, docketed as Special Proceeding No. 2669, thus the two accused stated
and made it appear in the amended petition that the same was signed and sworn to by Jovita
Carmorin as one of the petitioners when in truth and in fact the said Jovita Carmorin never signed
and swore to it, because it was in fact the accused Julia "Doe" who signed and swore to that
petition as Julia Carmorin.
Relying on the certification of the city fiscal that a preliminary investigation had been conducted
by him and that he had examined the witnesses under oath before filing the information, the City
Judge, Hon. Isidro O. Barrios, issued, on August 24, 1963, an order for the arrest of accused
Bermejo. To prevent his incarceration, said accused put up the necessary bond.

Upon arraignment, Bermejo filed a motion to quash the information, alleging in substance: (1)
that the information did not charge an offense because the amended petition for habeas corpus
(in Special Proceeding No. V-2669 of the Court of First Instance of Capiz), allegedly falsified, is not
a document contemplated under the provisions of Article 172 of the Revised Penal Code, and
that in a previous judgment of the Court of First Instance of Capiz in the habeas corpus
proceedings it was declared that the thumbmark in the amended petition was that of Jovita
Carmorin; and (2) that the court did not acquire jurisdiction over his person because the warrant
issued for his arrest was illegal, Judge Barrios having issued the same without first examining the
witnesses under oath and in the form of searching questions and answers as required under
Republic Act 3828.
The city fiscal filed his opposition to the motion to quash, contending that the petition for habeas
corpus is a public document; that the provisions of Republic Act 3828 are applicable only to
municipal judges and not. to city judges; and that the principle of res judicata, or conclusiveness
of judgment, cannot be invoked by the accused. After Bermejo had filed a supplement to his
motion to quash and a reply to the city fiscal's opposition, respondent City Judge, on October 5,
1963, issued an order denying the motion to quash.
On October 14, 1963, Bermejo filed his motion for reconsideration, but the same was denied for
lack of merit. Thereupon he filed a petition for certiorari and prohibition with preliminary
injunction before the Court of First Instance of Capiz, naming as respondents City Judge Isidro
Barrios and City Fiscal Quirico Abela, contending that City Fiscal Abela committed a grave abuse
of discretion in filing an information against him without conducting the proper preliminary
investigation, and that the City Judge committed a grave abuse of discretion in denying his
motion to quash, raising practically the same issues that he raised in the motion to quash before
the city court, and praying that respondent City Judge be enjoined from hearing the criminal case
against him during the pendency of the special civil action in the Court of First Instance.
In G.R. No. L-23615, Jovita Carmorin was charged by respondent City Fiscal Quirico Abela with
perjury, on August 23, 1963, in the same city court of Roxas City (Criminal Case No. 4452) for
allegedly having "subscribed and swore to an affidavit . . . that she was really the one who signed
with her thumbmark as Jovita Carmorin . . . the amended petition for habeas corpus . . . when in
truth and in fact, as she very well knew, she had not done such act of signing with her
thumbmark said petition and it was another person, who signed with a thumbmark said petition
as Jovita Carmorin . . ." The city fiscal also certified that he had conducted the preliminary
investigation in accordance with law before filing the information.
On the basis of the certification by the city fiscal that he had conducted the proper preliminary
investigation, respondent City Judge Barrios issued an order for the arrest of accused Carmorin.
After posting a bond, said accused, thru her counsel, Atty. Pedro M. Bermejo (the same person
accused in the falsification case), filed a motion to quash the information, alleging substantially,
that the court had not acquired jurisdiction over her person because the warrant of arrest issued
for her arrest was improvidently issued, the respondent City Judge having issued the same
without examining the witnesses personally in the form of searching questions and answers in
violation of "Republic Act 3828, and that no offense was committed by the accused because it
had already been declared by the Court of First Instance of Capiz in the habeas corpus case
(Special Proceedings No. V-2669) that the thumbmark appearing in the petition for habeas
corpus the true thumbmark of accused Carmorin.

After the city fiscal has filed his opposition to the motion to quash, and the accused, her reply, on
October 15, 1963, City Judge Barrios issued an order denying the motion to quash. Carmorin's
motion for reconsideration having been denied, she likewise filed a petition for certiorari and
prohibition with preliminary injunction with the Court of First Instance of Capiz, also naming as
respondents City Judge Barrios and City Fiscal Abella, imputing abuse of discretion on the part of
City Fiscal Abella in filing an information against her without conducting the proper preliminary
investigation, and on the part of respondent Judge Barrios in denying her motion to quash,
raising the same questions raised by her in her motion to quash before the city court, and also
praying that respondent City Judge be enjoined from hearing the case pending decision of the
special civil action.
On November 22, 1963, respondent city fiscal filed answers to the two petitions, admitting some
of the allegations in the petitions, and denying others; and setting up the affirmative defense
that the orders of respondent City Judge in the criminal cases against the two petitioners cannot
be the subject of the petitions for certiorari and prohibition before the Court of First Instance of
Capiz because the city court of Roxas City issued said orders in the exercise of its concurrent
jurisdiction with the Court of First Instance of Capiz, so that the latter court has no jurisdiction to
entertain the petitions for certiorari and prohibition filed before it, pursuant to Section 87,
paragraph (c) of Republic Act 296, as amended by Section 6 of Republic Act 3828.

Herein petitioners filed their replies to respondents' answers, asserting that the Court of First
Instance of Capiz has jurisdiction to take cognizance of the two cases for certiorari and
prohibition with preliminary injunction. After the parties had filed their memoranda in support of
their respective contentions regarding the jurisdiction of the court, the Court of First Instance of
Capiz issued an order, on January 6, 1964, declaring that it had jurisdiction to take cognizance of
the two special civil actions for certiorari and prohibition with preliminary injunction, and the
court set the hearing of the two cases for January 24, 1964.
During the hearing of the two cases, which was held jointly, Atty. Bermejo appeared and testified
in his behalf and in behalf of his co-accused Carmorin, while Fiscal Quirico Abella testified for the
prosecution. Thereafter, the parties filed their memoranda. On June 3, 1964, the Court of First
Instance of Capiz rendered a decision dismissing the two petitions, without pronouncement as to
costs. Their joint motion for reconsideration having been denied, herein petitioners brought the
present appeals to this Court.
Before resolving the questions posed in these appeals, We consider it necessary to rule on the
matter regarding the jurisdiction of the Court of First Instance of Capiz to take cognizance of the
two petitions for certiorari and prohibition with preliminary injunction a question that was
properly raised by the respondents in the court below, although this question is not now raised in
the appeals. We hold that the Court of First Instance of Capiz erred in taking cognizance of the
two petitions Section 6 of Republic Act 3828, amending Section 87, paragraph (c) of the Judiciary
Act of 1948, provides in part as follows:
"Justices of the peace in the capitals of provinces and subprovinces and judges of municipal
courts shall have like jurisdiction as the Court of First Instance to try Parties charged with an
offense committed within their respective jurisdictions, in which the penalty provided by law
does not exceed prision correccional or imprisonment for not more than six years or fine not
exceeding six thousand pesos or both, and in the absence of the district judge, shall have like
jurisdiction within the province as the Court of First Instance to hear applications for bail.

"All cases filed under the next preceding paragraph with justices of the peace of capitals and
municipal court judges shall be tried and decided on the merits by the respective justices of the
peace or municipal judges. Proceedings had shall be recorded and decisions therein shall be
appealable direct to the Court of Appeals or the Supreme Court, as the case may be." 1
The crime of falsification of a public or official document by a private individual, of which
petitioner Bermejo is charged in the city court of Roxas City in Criminal Case No. 4451, is
punishable With prision correccional in its medium and maximum periods, while the crime of
perjury of which petitioner Carmorin is charged in Criminal Case No. 4452 before the city court of
Roxas City is punishable with arresto mayor in its maximum period to prision correccional in its
minimum period. 2 Undoubtedly, these two cases fall within the concurrent jurisdiction of the city
court of Roxas City and the Court of First Instance of Capiz. This Court, interpreting the
aforequoted provision of Republic Act 3828, ruled that "[w]here the municipal court (city court of
Manila) has taken cognizance of a criminal case in its concurrent jurisdiction with the Court of
First Instance, appeal must be taken direct to the Court of Appeals or the Supreme Court; and
where the Court of First Instance has taken cognizance of such appeal in its appellate jurisdiction
and refused to elevate the case to the Court of Appeals, said Court of First Instance acted without
jurisdiction. 3 And this rule applies even if the order is not a judgment on the merits because in
cases of this nature the Court of First Instance exercises no supervisory jurisdiction over the city
court, and having concurrent jurisdiction the city court acts with "like jurisdiction" as the Court of
First Instance. 4 It is Our view, therefore, that the decision of the Court of First Instance of Capiz
in Special Civil Cases Nos. 2721 and 2723, now appealed to this Court, is null and void because
said court has no jurisdiction to take cognizance of those cases. The two special civil actions
against the City Judge and the City Fiscal of Roxas City should have been filed with the Court of
Appeals in aid of the latter's appellate jurisdiction over direct appeals from the decision or order
of the city court. We note, however, that the decision of the Court of First Instance of Capiz is
correct insofar as it had dismissed the two petitions in question.
Be that as it may, however, We believe that the error of the petitioners in filing their petitions for
certiorari and prohibition with preliminary injunction with the Court of First Instance of Capiz and
the error of the latter court in taking cognizance of those petitions should not deter Us from
ruling on the questions raised in the present appeals. The record shows that these proceedings
have been pending for more than six years, and were We to remand these cases to the courts
below so the petitions for certiorari should be brought up to the Court of Appeals, our action
would only cause further delay.
We shall, therefore, decide whether herein petitioners are right in assailing the correctness or
legality of the proceedings in the city court of Roxas City in connection with the two criminal
eases filed against them, as they now contend in the present appeals.
While petitioners maintain in the court below that the City Fiscal of Roxas City has no power to
initiate the investigation of cases without a previous complaint by an offended party, they now
admit in their brief that under the existing laws he can commence such preliminary inquiry. 5
Nevertheless, petitioner Bermejo contends that before the city fiscal can conduct such
preliminary investigation, there must be a violation of the law, and in the instant case he avers
that there was no violation of law. Basis of his argument is that the petition for habeas corpus not
being a document as contemplated in Article 172 of the Revised Penal Code, the city fiscal is
precluded from conducting the preliminary investigation, much less from filing the information,
because Bermejo could not be prosecuted for falsification of the alleged public or official
document.

The contention of Bermejo is untenable. In the case of U.S. v. Orera, 6 a "document" is defined as
a deed, instrument or other duly authorized paper by which something is proved, evidenced or
set forth. In U.S. v. Asensi, 7 this Court held that any instrument authorized by a notary public or
a competent public official, with the solemnities required by law, is a public document. Section
88. Rule 123 of the old Rules of Court, 8 enumerates the following as public writings:
"(a) The written acts or records of the acts of the sovereign authority, of official bodies and
tribunals, and of public officers, legislative, judicial and executive, whether of the Philippines, or
of a foreign country;
"(b)

Public records, kept in the Philippines, of private writings.

The same principle also obtains in the United States, that "defendant's pleadings and papers,
which were involved in civil actions and which were in custody of county clerk as ex-oficio clerk
of superior court in which action was pending, were `public documents' and were within scope of
subject matter of statute making alteration of court records an offense." 9 Considering that the
petition for habeas corpus (Special Proceedings No. V-2669) alleged the illegal confinement, or
deprivation of liberty, of one Soterania Carmorin, and that said petition was duly subscribed and
sworn to before Clerk of Court Leopoldo B. Dorado and filed with the Court of First Instance of
Capiz, forming, therefore, a part of the court records in said proceedings, it cannot be disputed
that said petition is a public or official document as contemplated in Articles 171 and 172 of the
Revised Penal Code. Petitioner Bermejo, therefore, cannot say that he committed no crime if it
can be shown that, as charged in the information, he connived or conspired with a certain Julia
"Doe" in falsifying said petition by making it appear that Jovita Carmorin placed her thumbmark
therein when in fact she did not do so.
Petitioner Bermejo likewise complains that notwithstanding his request to be present at the
preliminary investigation, the same was conducted in his absence or behind his back thus
denying him his day in court. We find, however, in the record and the court a quo so found too
that on March 11, 1963, a subpoena was issued to Atty. Pedro M. Bermejo requiring him to
appear at the office of the city fiscal of Roxas City on March 14, 1963 in an investigation. This
subpoena was received by Bermejo on March 12, 1963, and on the same day he sent a letter to
the city fiscal, which was received by the latter in the afternoon of the same day, requesting that
the investigation be postponed to March 19, 1963 because he (Bermejo) had to attend to
another case which was scheduled to be heard on the same date. The city fiscal acceded to his
request, but because the fiscal's office failed to notify him of the hearing on March 19, 1963,
Bermejo was not present when the investigation was conducted on that day. The preliminary
investigation was conducted on the very day requested by Bermejo, and after finding that there
was a prima facie case the city fiscal filed the information against him on August 22, 1963.
It appears, therefore, that while the city fiscal failed to notify petitioner Bermejo that his request
for postponement was granted, which should have been done, it can also be said that Bermejo
was not entirely blameless if the preliminary investigation was conducted in his absence. It was
he himself who set the date of the investigation in his request for postponement, but he did not
bother to come on the date he fixed. Neither did he try to find out what action the city fiscal had
taken on his request for postponement, on any day before the date of the hearing set by him,
although he is living in Roxas City where the city fiscal holds his office. Moreover, the information
was filed five months later, and this petitioner never inquired, at least as to the status of his
case. This behavior of petitioner cannot merit Our approval. It is obvious that he failed to employ
the standard of care or reasonable diligence that is expected of him. His unwarranted absence on

the day of the hearing which he himself requested, coupled with his seeming indifference or
unconcern about his case, is a clear indication that he was guilty of gross negligence in the
protection of his rights. If he did not have his day in court, it was because of his own negligence.
If he was really interested to attend the investigation, as he now pretends, he should have taken
pains to communicate with the city fiscal. This Court had ruled that in the application of the
principle of due process, what is sought to be safeguarded is not lack of previous notice but the
denial of opportunity to be heard. 10 Since petitioner Bermejo was afforded the opportunity to
appear at the preliminary investigation but did not take advantage of it, he has no one to blame
but himself. Anyway, said petitioner's rights can still be amply protected in the regular trial of the
case against him in the city court where he can cross-examine the witnesses and present his
evidence. 11
Furthermore, even assuming that the city fiscal did not notify petitioners, but had conducted the
preliminary investigations ex parte, their rights to due process could not have been violated for
they are not entitled as of right to preliminary investigation. The numerous authorities 12
supporting this view are not rendered obsolete, as claimed by petitioners, because Section 14,
Rule 112 of the new Rules of Court invoked by them has no application in their cases, it
appearing that the new Rules of Court took effect on January 1, 1964 while the preliminary
investigations conducted by the city fiscal were conducted in 1963. 13 The Rules of Court are not
penal statutes, and they cannot be given retroactive effect. 14
Having arrived at the conclusion that respondent city fiscal did not abuse his discretion in
conducting the preliminary investigations and that he filed the informations against herein
petitioners in accordance with law, there is, therefore, no merit in the assertion of petitioners
that the warrants of arrest issued for their arrest were illegal, Besides, granting arguendo that
the orders of arrest were tainted with irregularity, still the posting by petitioners of their bail
bonds amounted to a waiver of the effect of said defects.
"There is merit in the assertion that the warrant of arrest was irregularly issued. Section 81 of the
Judiciary Act as amended by Republic Act 3828 requires that the Municipal Judge issuing the
same, personally, examine under oath the witnesses, and by searching questions and answers
which are to be reduced to writing. Here, instead of searching questions and answers, we have
only the affidavits of respondent and her one witness. Moreover, said affidavits were sworn to
before Judge Cabungcal, not before Judge Juntereal who issued the warrant of arrest.
"However, the giving of bail bond by petitioner constitutes a waiver of the irregularity attending
her arrest. Besides, by her other personal appearances before the municipal court and the court
a quo, petitioner voluntarily submitted herself to the court's jurisdiction. Hence, the absence of
preliminary examination becomes moot already, the court having acquired jurisdiction over the
person of petitioner and could therefore proceed with the preliminary investigation proper "
(Doce v Branch II, Court of First Instance of Quezon, et al., supra; Luna v. Plaza, L-27511,
November 29, 1968).
The other point raised by petitioners in their contention that the respondent City Judge abused
his discretion in denying their motion to quash is that there was a judicial declaration in the
habeas corpus case (Special Proceedings No. V-2669) that the thumbmark appearing in the
petition was the genuine thumbmark of Jovita Carmorin, and that pronouncement is now
conclusive so that they cannot be prosecuted for falsification or perjury, as the case may be. This
particular question should rather be submitted and threshed out in the city court during the trial.
The record of the habeas corpus proceeding is not before Us, and We have no means of knowing

what actually transpired in that proceeding. The proper determination of this question will
involve not only the introduction and consideration of evidence, but also calls for a detailed
inquiry on the principle of estoppel by, or conclusiveness of, judgment.
Also devoid of merit is the other error pointed to by petitioners with respect to the alleged
admission by respondents that they acted illegally, capriciously, or in excess of jurisdiction. A
cursory examination of their answers would reveal that what was admitted by respondent was
the fact of the filing by petitioners of their pleadings, but not the allegations contained therein,
for, as shown in the record, respondents have staunchly defended their acts and insisted that
their actuations are legal or in accordance with law.
IN VIEW OF THE FOREGOING, the decision of the Court of First Instance of Capiz in Special Civil
Cases Nos. 2721 and 2723 is set aside for having been rendered by the court without jurisdiction,
and the instant appeals are dismissed. We declare that the warrants of arrests issued, and the
informations filed, in Criminal Cases Nos. 4451 and 4452 of the City Court of Roxas City, are in
accordance with law, and these cases should be remanded to the City Court of Roxas City for trial
on the merits. No pronouncement as to costs. It is so ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Castro, Fernando, Teehankee, Barredo and
Villamor, JJ., concur.
Footnotes
1.
The term "municipal court" should now be understood to mean "city court" and "municipal
judge" as "city judge". The "justices of the peace" are now known as "municipal judges."
2.

Articles 172 and 183, Revised Penal Code.

3.

Andico v. Roan, 23 SCRA 93; L-26563, April 16, 1968.

4.
Pinza v. Aldovino, et al., L-25226, September 27, 1968, 25 SCRA 220; People v. Valencia, et
al., L-29896, August 29, 1969, 29 SCRA 252; Esperat v. Avila, et al., L-25922, June 30, 1967, 20
SCRA 296.
5.
And this must be so for, as consistently held by Us the city or provincial fiscal can
commence an investigation of a crime within his jurisdiction without waiting for the filing of a
complaint by the police agency or an aggrieved party when the offense can be prosecuted de
oficio. (Brien v. Consolacion, et al., L-16060, July 31, 1962; Hernandez v. Albano, et al., L-17081,
May 31, 1961; Nicomedes, et al. v. Chief of Constabulary, et al., L-16022, November 1969).
6.

11 Phil., 596.

7.

34 Phil., 750.

8.

Now Section 20, Rule 132, new Rules of Court.

9.

35 Words and Phrases, 146, citing People v. McKenna, 255 P. 2d 452, 116 C.A. 2d 207.

10.
Caltex (Phil.), Inc. v. Castillo, L-24657, November 27, 1967, 21 SCRA 1071, citing Fuentes
v. Vinamira, L-14965, August 31, 1961.
11.
Doce v. Branch II, Court of First Instance of Quezon, et al., L-26437, March 13, 1963, 22
SCRA 1028.

12.
Santos, et al. v. Flores, et al., L-18251-2, August 31, 1962; People v. Pervez, L-15231,
November 29, 1960; Rodriguez v. Arellano, L-9037, July 31, 1955.
13.
Acts or events are governed by laws at the time they took place (Members of the Cult of
San Miguel Arcangel v. Narciso, L-24843, July 15, 1968, 24 SCRA 52).
14.

Rilloraza v. Arciaga, L-23848, October 31, 1967; See also Rule 144, new Rules of Court.

Art. 180. False testimony against a defendant.

7. US v. Aragon 5 Phil 469 -180

EN BANC
[G.R. No. 2709. December 28, 1905.]
THE UNITED STATES, plaintiff-appellee, vs. ISIDORO ARAGON, defendant-appellant.
Buencamino&Diokno, for appellant.
Solicitor-General Araneta, for appellee.
SYLLABUS
1.
FALSE TESTIMONY; SUFFICIENCY OF PROOF. In order to convict a person charged with
giving false testimony in civil causes, the following facts must be shown: (1) The testimony must
be given in the civil cause. (2) The testimony must relate to the issues presented in said cause.
(3) The testimony must be false. (4) The false testimony must be given by the defendant,
knowing the same to be false. (5) Such testimony must be malicious and given with an intent to
affect the issues presented in said cause.
DECISION
JOHNSON, J p:
This was an action for the crime of giving false testimony.
The complaint filed in said cause was as follows:
"The undersigned accuses Isidoro Aragon of the crime of false testimony in a civil cause,
committed as follows:
"That on February 23 of the present year (1904), E.H. Warner filed the following complaint:
"United States of America, Philippine Islands. In the justice of the peace court of the city of
Manila.Edwin H. Warner, plaintiff, vs. Claro Magcauas, defendant.
"'The plaintiff appears and as a cause of action against the defendant, alleges:
"'I.
That the plaintiff is the plain and absolute owner of a great extension of land commonly
known by the name of Hacienda of Pasay, situated partly in Malate and Singalong, in the
jurisdiction of the city of Manila.

"II.
That the defendant, as a tenant, occupied a small piece of the said hacienda located in
Singalong, in the jurisdiction of the city of Manila, which measured approximately 10,000 meters
square, and for the occupation of which as a tenant he paid an annual rental of 13 pesos 3 reales
and 12 cuartos.
"'III. That the defendant has failed to pay and is owing to the plaintiff the rents corresponding
to the years 1899, 1900, 1901, 1902, and 1903, at the annual rate of 13 pesos 3 reales and 12
cuartos, which amounts to the sum of 77 pesos 2 reales, or $________, notwithstanding that the
payment of same has been repeatedly requested by the plaintiff.
"'Wherefore the plaintiff prays judgment against the defendant for the said sum of $_______,
being the rents corresponding to the said years, for the costs of this action, and for such other
and further relief as the court may deem equitable and just in the premises.
"Manila, February 23, 1904. For Sutro and Ortigas, Eusebio Orense, attorney for the plaintiff.'
"That on the 4th day of March of the present year the accused was summoned as a witness to
appear before the justice of the peace court of Manila, and after having been duly sworn,
testified as follows:
"'Q.

Have you ever heard about the Pasay or Pineda estate?

"'A.

I have heard . . . question of lands.

"'Q.

Do you know the Pasay Estate?

"'A.

I do not know.

"'Q.

What is it that you heard about the Pasay estate?

"'A.
Well, I can tell that with reference to the Pasay estate that there has been objection to the
survey, to the assessment of that land, plenty of that, nothing more.
"'Q.

When was it that you say objection was made to the survey and nothing more?

"'A.

Four years ago to-day.

"'Q.

Prior to that survey had you not heard any talk about the Pasay estate?

"'A.

No, sir.

"'Q. Do you know if the Augustinian Fathers, during the years 1895 and 1898, brought any
action for forcible entry and detainer against Agustin Montilla, and whether in said action, by
reason of the decision ousting Mr.Montilla, the defendant, Claro Magcauas, in this case was
likewise ousted from his hand as a sublessee of Mr.Montilla?
"'A.

I do not remember, sir.

"'Q.

Did you not know then Mr. Agustin Montilla as administrator of the Pasay estate?

"'A.

I do not remember.

"'Q.

Were you justice of the peace for Singalong?

"'A.

Assistant.

"'Q.

But were you acting at the time?

"'A.

Yes, sir.

"'Q. In the justice of the peace court where you were acting was there not a suit brought by
Mr.Montilla for forcible entry and detainer against the tenants of the Pasay estate, among them
the defendant in this case, and for the lands in questions?
"'A.

I do not remember.

"'Q. Can you not assure that in your court not even a single action for forcible entry and
detainer was brought against Mr.Montilla?
"'A.

I do not remember, sir.

"'Q. Do you not remember that while you were justice an order was received from the judge of
the Court of First Instance calling upon you to forward a list of all the actions for forcible entry
and detainer pending in your court and brought by Don Agustin Montilla against various tenants
of the Pasay estate?
"'A.

I do not remember, sir.

"'Q. Do you not remember having received any order from the Court of First Instance as to
these actions for forcible entry and detainer in regard to the Pasay estate?
"'A.

I remember having received orders, but I do not remember to what they referred.

"'Q. Don't you remember that in the justice of the peace court while you were acting judge,
there was pending an action for forcible entry and detainer against Claro Magcauas, Manuel
Santajuana, Felipe Villanueva, Pedro Pascual, Escolastico Verge, Claro Villanueva, Anastasio
Ramos, Agustin Bonifacio, Arcadio Villanueva, Bernardino Isidro, Maximo de los Santos,
SeveroDineral, Florentino Gabriel, Pedro Nagomboy, LeocadioVillareal, Leonardo Tailer, Catalino
O. Santiago, Demetrio Espiritu, P. Tomaso, N. Vergel, H. de los Reyes, Jose Carlos, Honorio
Santiago, Rufino de Jesus, VictorinoDelignac, Aniceto Ordonez, Clemente Isidro, Claro Naracos,
EulogioAlcantara, Simeon A. Protasio, Apolonio C. Santos, Gregorio R. Patricio, Alejandro Dionisio,
AnicetoSevero, Pascual Villanueva, Ignacio Pernate, Engracio Flores, CrispinoAmpagan, Lino
Vergel, MacarioSergis, Dimas Dison, Modesto Protasio, SeveroVizcara, Isidro Vizcara,
PetronaVizcara, and BonifacioVizcara, by Agustin J. Montilla?
"'A.

No, I do not remember.

"'Q.

None of those mentioned in my question?

"'A.

I do not recollect now anymore.

"'Q.

Did you not know Father Benito Ibaez, administrator of the Hacienda of Pasay?

"'A.

No; neither.

"'Q. Father Martin Arconada, who was administrator of the estate - did you know him
personally as administrator of that estate?
"'A.

I do not remember whether he has been administrator or not.

"'Q. You do not remember whether any orders were published in Singalong by means of the
public crier, within Pasay, notifying the decision rendered in the suit in favor of Mr.Montilla
against the Augustinian Friars, and warning all the tenants of the Pasay estate to pay thereafter
Mr.Montilla as a lessee of that estate?
"'A.
If you talk about public crier I do not remember, sir. Truly there have been notices by
means of public criers, because there in that month the revolution broke out.'
"All these statements are absolutely false, and are essential to the case at issue wherein they
were made, because really and truly the accused had heard about the Pasay estate prior to the
four last years, and he well knew that at the time there were brought in the justice of the peace
court at Pineda when he was filling that office many actions for forcible entry and detainer,
instituted by Augustin J. Montilla, against tenants of the estate, he having received an order from
the Court of First Instance asking for a list of said actions, with a statement of the actions for
forcible entry and detainer and the answers filed by the defendants, and the accused himself
signed three lists which he forwarded to the Court of First Instance; because the accused himself
received an order from the Court of First Instance enjoining him to notify all the tenants of the
Pasay estate of the decision rendered in favor of Don Agustin J. Montilla, in the suit brought by
him against the Augustinian Friars, and the accused himself having rendered an order wherein
the proper action was taken for the compliance with such order of the Court of First Instance, and
the accused himself having been taken part in various other proceedings had for the purpose of
complying with such orders from the Court of First Instance; because the accused knew that Don
Agustin Montilla was the administrator of the Pasay estate, and was substituted by reason of the
suit by him brought against the Augustinian Friars by the curate of the pueblo, Father Benito
Ibaez, and he, the accused, likewise knew that Father Martin Arconada, the procurator of the
convent of the Augustinian Fathers, did intervene in the management of the Pasay estate, and
because he, the accused, likewise knew that in the years 1898 there was brought by the
Augustinian Friars against Mr.Montilla an action for forcible entry and detainer of the Pasay
estate, the result of which was that said Mr.Montilla, together with many other tenants of the
Pasay estate, were ousted; all contrary to the form of the statute in such cases made and
provided."
This complaint was duly signed and sworn to.
At the close of the trial in the inferior court the defendant was found guilty of the crime charged
in the said complaint and was sentenced to be imprisoned for a period of three months of arresto
mayor, with the accessories of article 61 of the Penal Code and to pay a fine of 1,500 pesetas or
to suffer, in case of insolvency, the corresponding subsidiary imprisonment, which should not
exceed one-third part of the period of imprisonment imposed, and to pay the costs.
From this sentence the defendant appealed to this court.
It is admitted that the defendant gave the testimony set out in the complaint, during the trial of a
civil case in the court of a justice of the peace of the city of Manila, between Edwin H. Warner,
plaintiff, and Claro Magcauas, defendant, an action brought by the plaintiff to recover of the
defendant the annual rent for a certain tract of land for the years 1899, 1900, 1901, 1902, and
1903. The defendant was summoned as a witness to appear before said justice of the peace, to
give testimony upon the trial of this cause.
It is difficult to ascertain from an examination of the alleged false testimony set out in the said
complaint just how the question and answers in said false testimony have any bearing whatever

upon the issue that was being tried before said justice of the peace. Admitting, however, that
they must have had some reference to some question presented before the court, we proceed to
an examination of the question whether such testimony was false.
Chapter VI of Title IV of the Penal Code provides the punishment for false testimony in both
criminal and civil cases, but this chapter makes no attempt to define false testimony or in any
way to indicate of what false testimony consists.
Escriche in his valuable dictionary (p. 972) defines false testimony to be: "La impostura o
acusacion contra un inocente y la deposicionquehace un testigo contra la verdad."
"Falsotestimonio" under Spanish law corresponds to "false swearing" under English law. False
swearing, under the English law, is committed by a person who swears falsely before any person
authorized to administer an oath upon a matter of public concern, under such circumstances that
the false swearing would have amounted to perjury if committed in a judicial proceeding.
Bishop in his work on criminal law (Vol. 2, p. 588) says:
"False swearing is the name given in the statutes of some of the States to false declarations on
oath which, while not within any common law or statutory designation of perjury, are, by such
statutes, rendered otherwise indictable."
Article 321 of the Penal Code provides that
"False testimony given in a civil cause shall be punished with a penalty of arresto mayor in its
maximum degree to presidiocorreccional in its medium degree and a fine of from 625 to 6,250
pesetas.
"If the amount of the claim should not exceed 625 pesetas, the penalties shall be those of arresto
mayor and a fine of from 325 to 3,250 pesetas."
This testimony was given in a civil cause and it was the duty of the Government to prove that it
was false. Not only was it the duty of the Government to show that the testimony was false but
that it was given knowing that it was false and with malicious intent. Viada, in his valuable
Commentaries on the Penal Code (vol. 2, p. 449, 4th ed.), says:
"Comete el delito de falsotestimoniotodo el quefaltamaliciosamente a la verdad en sus
declaraciones, sea negandola, seadiciendo lo contrario a ella."
During the examination of the defendant as a witness in the cause in which it is alleged he gave
false testimony he was asked certain question with reference to the existence of certain facts.
His answers invariably were that he did not remember, or that he had no recollection concerning
those facts. The prosecuting attorney proved the existence of the facts with reference to which
the defendant was questioned, but failed to prove that the statements of the defendant with
reference to those facts were false. The mere fact that the defendant had to do in the year 1896
with certain facts and relations was not sufficient to prove that he stated a falsehood when he
stated in December, 1904, that he had "no recollection with reference to such facts or relations."
The evidence adduced during the trial fails, in our judgment, to show that the defendant testified
falsely or gave false testimony as was charged in the complaint.
In order that a defendant may be convicted under article 321 of the Penal Code for giving false
testimony, the following facts must be shown:

First. The testimony must be given a civil cause.

Second. The testimony must relate to the issues presented in said cause.
Third. The testimony must be false.
Fourth. The false testimony must be given by the defendant knowing the same to be false.
Fifth. Such testimony must be malicious and given with an intent to affect the issues presented in
said cause.
The evidence adduced during the trial of this case is not sufficient to show that the defendant
committed the crime charged in the complaint. The judgment of the inferior court is therefore
reversed and the said cause is hereby ordered to be dismissed.
Arellano, C.J., Mapa, Carson and Willard, JJ., concur.

8. US v. Bautista 67 Phil 518 -180-181

EN BANC
[G.R. No. 45739. April 26, 1939.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. SOTERO PEJI BAUTISTA, accusedappellee.
Solicitor-General Tuason for appellant.
Emiliano T. Tirona for appellee.
SYLLABUS
1.
CRIMINAL LAW; FALSE TESTIMONY; FORMS OF THIS CRIME. The Revised Penal Code
divides false testimony into three forms: first, false testimony in a criminal case (arts. 180 and
181); second, false testimony in a civil case (art. 182); and third, false testimony in other cases.
The requisites for each of these three forms are different, and the penalties for each one of them
and for each of their variations are also different. From the foregoing it is obvious that it is not
the same thing to charge one with false testimony in a criminal case and to charge him with false
testimony in a civil case, and with the same crime in other cases.
2.
ID.; ID.; JEOPARDY; PRELIMINARY INVESTIGATION IS NOT A TRIAL NOR A PART THEREOF.
If in this case there had been nothing more than a preliminary investigation, it clearly could not
be said that the accused had ever been in jeopardy. This is because a preliminary investigation is
not a trial or any part thereof and does not have for its object that of determining definitely the
guilt of the accused by proofs, counterproofs, and the other formalities prescribed by law. (U. S.
vs. Yu Tuico, 34 Phil., 209.)
3.
ID.; ID.; ID.; COMPETENT COURT. One cannot be considered to have been in jeopardy
unless the prior judgment, whether one of acquittal or conviction in the proper case, has been
rendered by a court having jurisdiction to try the same by reason of the crime with-which he was

charged and the penalty prescribed therefor. (Grafton vs. U. S., 206 U. S., 333; 11 Phil., 776; U. S.
vs. Rubin, 28 Phil., 631.)
4.
ID.; ID.; ID,; ID. In cases of lack of authority or jurisdiction on the part of the judge, the
proceedings taken by him are null and the trial of the accused under said circumstances has not
placed him in danger of conviction for the reason that there has been no really valid trial.
Therefore, the right of the government to prosecute the crime subsists and must be attended to
by the competent judge called upon to take cognizance of the same, and the defense of jeopardy
does not lie against it. (U. S. vs. Arceo, 11 Phil., 630; Kepner vs. U. S., 195 U. S., 100; 11 Phil.,
669; U. S. vs. Jayme, 24 Phil., 90; U. S. vs. Ledesma and Bernad, 29 Phil., 431.)
5.
ID.; ID.; ID.; IMPROPER DISMISSAL. By virtue of the facts stated in the decision of the
court, Held: That the dismissal ordered by the lower court in this case was clearly erroneous and
the order appealed from not being in accordance with law, the same must be reversed.
DECISION
DIAZ, J p:
This case is before us by virtue of an appeal interposed by the Solicitor-General to the resolution
of the Court of First Instance of Cavite of September 10, 1937 dismissing said case for the
following reasons: first, that the accused SoteroPeji Bautista was not given a preliminary
investigation before trial; and second, that said accused had been twice put in jeopardy.
The undisputed facts bearing upon the case are the following: On July 22, 1935 the accused
SoteroPeji Bautista was charged by one Ong Loo in the justice of the peace court of Kawit, Cavite,
with having violated the provisions of article 183 of the Revised Penal Code on May 30, 1936 by
knowingly subscribing under oath a false affidavit couched in the following language:
"I, the undersigned herein affirmed, of lawful age, and a native of Binakayan, Kawit, Cavite,
under the guidance of normal mind, in the name of the law, and in the presence of lawfull
authority do hereby declare the following:
"That Ong Loo, the alleged defendant to the case, is personally known to me and we had been
acquainted with each other within a period of several months.
"That several times and oft during the period of our acquaintanceship I had told and informed the
said defendant of the value of manuscript as specified thereto in the complaint.
"That on or about December 12, 1934, in the Municipality of Kawit, Province of Cavite, after a
skillful management actually taking due advantage of our acquaintanceship, defendant
succeeded to acquire possession of said manuscript.
"That said defendant guaranteed himself by delivering to me wilfully, voluntarily, and under no
constraint whatsoever, a pledge of security.
"That defendant promised upon his word of honor to abide by the obligation to return and
produce said manuscript upon my demand as rightful owner.
"That later and again, on or about January 1, 1935, said defendant willfully, voluntarily, and
unlawfully managed to dispossess me of the pledge of security through an incriminatory
machination prepared and devised by the same defendant, effected and executed contrary to
law by city policeman badge No. 733 and thus having deprived of the necessary instruments as a

lawful means of defense in case of a controversy like this, the defendant herein named willfully,
voluntarily, and feloniously refused and still refuses, and will even refuse to return and produce
the manuscript upon my demand as rightful owner. and has thereafter denied, and still denies,
and will even deny having received said manuscript, deceitfully, fraudulently, and unlawfully
converts and misappropriates the same with intent to profit himself at my own detriment and
prejudice.
"That the manuscript is my source of income and it must therefore be valued according to its
earning capacity to the amount of two thousand pesos (P2,000) Philippine currency or its
equivalent value in pesetas.
"That I am willing to submit this to trial for the speedy administration of justice.
(Sgd.) "SOTERO PEJI Y BAUTISTA
"Complainant

"Subscribed and sworn to before me this 30, day of March, 1935.

(Sgd.) "FERNANDO T. VINIEGRA
"Justice of the Peace
Municipality of Kawit

"(Causa Criminal No. 1047, Juzgado de Paz de Kawit, Cavite) ."

After the preliminary investigation required by law, the justice of the peace of Kawit remanded
the case to the Court of First Instance because it did not fall under his jurisdiction and he reached
the conclusion that there were reasonable grounds to believe that the crime was committed and
that the accused was the one who committed it. Instead of filing an information against the
accused for the purpose of charging him with the aforesaid violation of the Revised Penal Code,
the provincial fiscal, without further proceedings, filed another charging him with false testimony
in a criminal case under article 180 of the said Code, which is ; felony entirely different from that
which had been the subject of the preliminary investigation by the justice of the peace of Kawit.
The information 90 filed by the fiscal contains the following allegations:
"That on or about September 26, 1935, in the municipality of Kawit, Province of Cavite, Philippine
Islands, the said accused did then and there voluntarily, illegally and maliciously and knowingly
make under oath untruthful statements and give false testimony against one by the name Ong
Loo, the defendant in the criminal case for estafa No. 1044 of the justice of the peace of Kawit,
Cavite, declaring falsely and knowingly that Ong Loo had borrowed from him a certain
manuscript for English Idioms in the municipality of Kawit, Cavite, and that he had given him as
security for the return to him of the said manuscript, two books (Webster dictionary and English
grammar), when in truth and in fact, as the accused knew it full well, that Ong Loo did not borrow
in Kawit from him nor elsewhere the said manuscript nor he gave him the Webster dictionary and
English grammar as security for the return of the supposed manuscript.
"Contrary to law."

(Criminal case No. 6999, Court of First Instance of Cavite.)

The accused on arraignment pleaded "not guilty." After trial has commenced with the fiscal
presenting his first witness, the accused objected that he had not been given a preliminary
investigation and that the crime with which he was then charged was entirely different from that
which had been imputed to him in the justice of the peace court. The judge then presiding over
the Court of First Instance of Cavite, the Honorable Emilio Pena, having found the objection of the
accused to be well taken, ordered the transfer of the case to the justice of-the peace court of the
capital of the province to the end that the necessary preliminary investigation be there made.
This done, the justice of the peace returned the case to the Court of First Instance with the report
that he did not find reasonable grounds to believe that the accused had committed the crime of
false testimony in a criminal case which had been imputed to him. In view thereof, on May
16,1936, the said Court of First Instants then presided by the HonorableLeopoldoRovira, ordered
the filing away of the case, reserving, however, to the provincial fiscal the right to file a new
information whenever should he deem proper with the aid of the same preliminary investigation
which the justice of the peace of the capital of said province had already conducted. Five days
after, or on March 21, 1936, the provincial fiscal filed a new information in a separate case
(criminal case No. 7167 of the Court of First Instance of Cavite) charging the accused SoteroPeji
Bautista with false testimony in a criminal case, and asked the Judge Pastor M. Endencia, then
acting in the place of Judge Rovira, personally to conduct the necessary preliminary investigation
on the ground that the justice of the peace of the provincial capital had previously expressed the
opinion that there were no reasonable grounds to believe that the accused was guilty. This was
done, and when formal trial was about to be held before another judge (the Honorable Marcelo T.
Boncan), the accused raised the two questions which, resolved favorably to him through the
appealed order, led to the final dismissal of the case.
1.
It is not true, as has been shown by the Solicitor-General, that the accused has not been
given a preliminary investigation, for this was conducted precisely by the judge himself,
Honorable Pastor M. Endencia, on May 20, 1936 as evidenced by his order of said date, which
says:
"It appearing from the preliminary investigation made in this case that there are reasonable
grounds to believe that the accused has committed the crime of false testimony and that he is
liable therefor, the arrest of the accused SoteroPeji Bautista is ordered after which a day shall be
set for the corresponding trial."
2.
Neither is it true that said accused had been twice put in jeopardy or in danger of being
tried for the same crime of false testimony in a criminal case. All that tools place was a
preliminary investigation in the first case, names, that endorsed to the justice of the peace of the
capital of the province so that said investigation might be conducted. And this proceeding had to
be taken because the accused asked for it, invoking his right to a preliminary investigation before
the submission of the charge against him. He had then undoubtedly a right to said investigation
because when the fiscal first charged him with false testimony in a criminal case, case No. 6999,
said fiscal disregarded the aforementioned procedure and formality, it not being possible to
declare that the same were observed just because he had them m case No. 1047 of the justice of
the peace court of Kawit for the reason that in the latter case a crime distinct from that imputed
to him afterwards was involved. The Revised Penal Code divides false testimony into three forms:
first, false testimony in a criminal case (arts. 180 and 181); second, false testimony in a civil case
(art. 182); and third, false testimony in other cases. The requisites for each of these three forms
are different, and the penalties for each one of them and for each of their variations are also

different. From the foregoing it is obvious that it is not the same thing to charge one with false
testimony in a criminal case and to charge him with false testimony in a civil case, and with the
same crime in other cases.
Therefore, if there had been nothing more than a preliminary investigation, clearly it could not be
said that the accused had ever been in jeopardy. This is because a preliminary investigation is
not a trial or any part thereof and does not have for its object that of determining definitely the
guilt of the accused by proofs, counterproofs, and the other formalities prescribed by-law. (U. S.
vs. Yu Tuico, 34 Phil., 209.)
The justice of the peace of the capital of the Province of Cavite, by reason of the penalty
prescribed by law for the crime with which the accused was then charged, was act competent to
take cognizance of case No. 6999 in which he did nothing more than to conduct, by delegation of
the judge of the Court of First Instance, a preliminary investigation prayed for by the accused
himself. In this connection it must be noted that the penalties prescribed for false testimony
against an accused in criminal cases are not, nor may they be lower than arresto mayor or a fine
not exceeding one thousand pesos, and that the penalties which justices of the peace of capitals
of provinces may impose by virtue of their original jurisdiction are arresto which cannot exceed
six months or a fine which cannot exceed two hundred pesos or both penalties at the same time.
(Section 2, Act No. 2131.)
One cannot be considered to have been in jeopardy unless the prior judgment, whether one of
acquittal or conviction in the proper case, has been rendered by a court having jurisdiction to try
the same by reason of the crime with which he was charged and the penalty prescribed therefor.
(Grafton vs. U. S., 206 U. S., 333;11 Phil., 776; U. S. vs. Rubin, 28 Phil., 631.)
In cases of lack of authority or jurisdiction on the part of the judge, the proceedings taken by him
are null and the trial of the accused under said circumstances has not placed him in danger of
conviction because there has been no really valid trial. Therefore, the right of the government to
prosecute the crime subsists and must be attended to by the competent judge called upon to
take cognizance of the same, and the defense of jeopardy does not lie against it. (U. S. vs. Arceo,
11 Phil., 530; Kepner vs. U. S., 19 U. S., 100; 11 Phil., 669; U. S., vs. Jayme, 24 Phil., 90; U. S. vs.
Ledesma and Bernad, 29 Phil., 431.)
For the reasons set forth, it is evident that the final dismissal of the case ordered by the lower
court under the circumstances above-mentioned was clearly erroneous. The order appealed
from, not being in accordance with law, must be reversed.
Wherefore, the aforesaid order is reversed and it is ordered that the case be returned to the
lower court so that the trial may proceed for the purpose of receiving the evidence which the
prosecution and the defense may present, and judgment may be rendered according to law, with
costs de oficio. So ordered.
Avancea, C.J., Villa-Real, Imperial, Laurel, Concepcion and Moran, JJ., concur.

9. People v. Maneja 72 Phil 256 -180

FIRST DIVISION

[G.R. No. 47684. June 10, 1941.]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. DIONISIO A. MANEJA, defendantappellee.
First Assistant Solicitor-General Reyes and Solicitor Barcelona for appellant.
Del Rosario & Del Rosario, Pelaez&Pelaez and Hilario B. Abellana for appellee.
Godofredo Reyes and Enrique Medina as private prosecutors.
SYLLABUS
CRIMINAL LAW AND PROCEDURE; FALSE TESTIMONY; PRESCRIPTION. The period of prescription
shall commence to run from the day of which the crime is discovered by the offended party, the
authorities or their agents. (Art. 91, Revised Penal Code.) With regard to the crime of false
testimony, considering that the penalties provided therefor in article 180 of the Revised Penal
Code are, in every case, made to depend upon the conviction or acquittal of the defendant in the
principal case, the act of testifying falsely does not therefore constitute an actionable offense
until the principal case is finally decided. (Cf. U. S. vs. Opinion, 6 Phil., 662, 663; People vs.
Marcos, G. R. No. 47388, October 22, 1940.) And before an act becomes a punishable offense, it
cannot possibly be discovered as such by the offended party, the authorities or their agents.
DECISION
MORAN, J p:
The sole question raised in this appeal is whether the period of prescription for the offense of
false testimony which, in the instant case, is five years (art. 180, No. 4, in relation to art. 90,
Revised Penal Code), should commence from the time the appellee, Dionisio A. Maneja, adduced
the supposed false testimony in criminal case No. 1872 on December 16, 1933, as the lower
court held, or, from the time the decision of the Court of Appeals in the aforesaid basic case
became final in December, 1938, as the prosecution contends.
We hold that the theory of the prosecution is the correct one. The period of prescription shall
commence to run from the day on which the crime is discovered by the offended party, the
authorities or their agents. (Art. 91, Revised Penal Code.) With regard to the crime of false
testimony, considering that the penalties provided therefor in article 180 of the Revised Penal
Code are, in every case, made to depend upon the conviction or acquittal of the defendant in the
principal case, the act of testifying falsely does not therefore constitute an actionable offense
until the principal case is finally decided. (Cf. U. S. vs. Opinion, 6 Phil., 662, 663; People vs.
Marcos et al., G. R. No. 47388, Oct. 22, 1940.) And before an act becomes a punishable offense,
it cannot possibly be discovered as such by the offended party, the authorities or their agents.
If the period of prescription is to be computed from the date the supposed false testimony is
given, it would be impossible to determine the length of such period in any particular case,
depending, as it does depend, on the final outcome of the basic case. For instance, a witness
testifies falsely against an accused who is charged with murder. If the accused is found guilty,
the penalty prescribed by law for the perjurer is reclusion temporal (art. 180, No. 1, Revised
Penal Code), in which case the period of prescription is twenty years (art. 90, idem). On the other
hand, if the accused is acquitted, the penalty prescribed for the perjurer is only arresto mayor
(art. 180, No. 4, idem), in which case the period of prescription is only five years. Upon these

hypotheses, if the perjurer is to be impossible to determine the period of prescription whether

twenty years or five years as either of these two periods is fixed by law on the basis of
conviction or acquittal of the defendant in the main case.
The mere fact that, in the present case, the penalty for the offense of false testimony is the
name, whether the defendant in criminal case No. 1872 were convicted or acquitted, is of no
moment, it being a matter of pure co-incidence. The four cases enumerated in article 180 of the
Revised Penal Code and the instant case falls on one of them uniformly presuppose a final
judgment of conviction or acquittal in the basic case as a prerequisite to the action ability of the
crime of false testimony.
Order of dismissal is reversed, and let the case be remanded to the court of origin for further
proceedings, without costs.
Avancea, C. J., Diaz, Laurel and Horrilleno, JJ., concur.
10. People v. Dasig et al 93 Phil 618 -180

EN BANC
[G.R. No. L-5275. August 25, 1953.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JUANITO DASIG, BALBINO GABUNI and
MARCELINO DAYAO, defendants-appellants.
Domingo L. Vergara for appellants Juanito Dasig and Marcelino Dayao.
Perfecta E. de Vera for appellant Balbino Gabuni.
Assistant Solicitor General Guillermo E. Torres and Solicitor Ramon L. Avancea for appellee.
SYLLABUS
1.
CRIMINAL LAW; EVIDENCE; PRINCIPLE OF INADMISSIBILITY OF CONFESSION OBTAINED
THROUGH PROMISE OF EXCLUSION FROM INFORMATION. Where the evidence submitted
against the defendants is not the confession that one of them had made upon promise that he
would be excluded from the information and made a state witness, but his testimony in open
court, there is no occasion for the defendants to invoke the principle of inadmissibility of
confession obtained through such promise.
2.
EVIDENCE; WITNESSES; RULE "FALSUS IN UNO FALSUS IN OMNIBUS," EXPLAINED. The
rule falsus in uno falsus in omnibus is not a mandatory rule of evidence, but rather a permissible
one, which allows the jury or the court to draw the inference or not to draw it as circumstances
may best warrant. (70 C. J., 783). The rule has its limitations, when the mistaken statement is
consistent with good faith and is not conclusively indicative of a deliberate perversion, the
believable portion of the testimony should be admitted. (III Wigmore. secs. 1009-1015, pp. 674683.) There are, therefore, these requirements for the application of the rule, i.e., that the false
testimony is as to a material point, and there should be a conscious and deliberate intention to
falsify. Lyric Film Exchange, Inc. vs. Cowper, 36 Off. Gaz., 1642.)

3.
'ID.; ID.; ID.; CASE AT BAR. The said rule should not apply where there is sufficient
corroboration on many grounds of the testimony; where the mistakes are not on the very
material points; where the errors do not arise from an apparent desire to pervert the truth but
from innocent mistakes and the desire of the witness to exculpate himself though not completely.
4.
EVIDENCE; LEADING QUESTIONS; AN EXAMPLE OF IT. The question. "How many days
previous to that trip of yours on December 24, 1949? Was it the day previous?" is a leading
question.
5.
ID.; WITNESSES; TESTIMONY AS TO DATES. Human memory on dates or days is frail,
and unless the day is an extraordinary or unusual one for the witness, there is no reasonable
assurance of its correctness.
DECISION
LABRADOR, J p:
Defendants in the above-entitled case appeal from a judgment of the Court of First Instance of
Isabela, finding them guilty of the crime of robbery with homicide, and sentencing them to
reclusion perpetua, to indemnify jointly and severally the heirs of Norberto Ramil, in the sum of
P4,000, and the complainant, Jacinta Galasinao, in the sum of P190, and to pay the costs of the
prosecution.
The record discloses that in the evening of December 23, 1949, at about midnight, while
Norberto Ramil and his wife, Jacinta Galasinao, and their daughter and son, Segunda and
Domingo, respectively, were sleeping in their house situated not far away from the municipal
building of Antatet (now Luna), Province of Isabela, the said spouses were suddenly awakened by
the barking of dogs and the grunting of pigs. Ramil got up and walked quietly towards a window,
to find out what the dogs were barking at, but just then two persons who had entered the house
faced him. The wife heard these persons talking in whispers and saw them in front. She lighted a
lamp, and as she did so the two intruders levelled their guns at her husband and demanded from
him to produce his pistol. As the husband could not produce any pistol and said he had none at
all, they fired at him. He used his two hands to protect himself, but to no avail. As he received
the shots, he fell down in a stooping position and then slumped on the floor, face downwards.
The wife and her two children, who had already been, awakened, cried for help, but the intruders
levelled their guns at them, commanding them to keep quiet and threatening to kill if they did
not do so. For fear, they had to stop. The intruders then went inside the bedroom and ransacked
the contents of the trunk which contained their valuables. P10 in cash and jewels worth P180
were taken away.
The Chief of Police of Antatet, who lived around twenty meters away from the house of Ramil,
heard three pistol shots, so he repaired to the municipal building to fetch one of his policemen,
then they passed by the house of the Mayor, and together with him they proceeded to the house
of Ramil. When they reached it the robbers were already gone. They found Ramil already dead
with gunshot wounds on the left eye, in the right breast, at the back, and at the left index finger.
They questioned the wife, who recounted to them what had happened. The chief of police found
a fired bullet, caliber .32, inside the trunk, four empty .22 caliber cartridges near the dead body,
three empty .32 caliber shells, one near the broken box inside the bedroom and the other two
five meters from the house of the deceased, and three .45 caliber empty shells under the house
just below the dead body. The following day, a physician of Antatet performed an autopsy on the

dead body of Ramil and he found four gunshot wounds in the places already indicated above.
When he opened the chest cavity, he discovered a .22 caliber slug right at the heart.
The above facts are not contradicted. The evidence, upon which the judgment of conviction is
based, consists of the testimony of one, Jose Mallillin, that of Andres Bumanglag, which in part
corroborates Mallillin's testimony, and the findings of a ballistic expert of the Philippine
Constabulary to the effect that the empty .32 caliber cartridges found under the house of Ramil
had been fired from the Llama auto-pistol possessed by, and licensed in the name of, Mallillin,
and that the .32 caliber slug, Exhibit C, which was found inside the trunk, had also been fired
therefrom. These findings were based on the fact that the striations found in the said bullet are
identical with and congruent to those which he fired from the same Llama auto-pistol, and the
pin marks at the empty .32 caliber cartridges are identical with and congruent to that found at
an empty cartridge fired from the same pistol.
Mallillin was formerly a school teacher of Antatet and had resided there, but on the date of the
robbery he was living in a contiguous town, Cauayan. He testified as follows: On the evening in
question, while he was on his way home, he saw four persons near a checkpoint, and as he
passed by, two of them got hold of him and a third snatched his pistol away and compelled him
to follow them. The four were later recognized by him to be the defendants Balbino Gabuni,
Juanito Dasig and Marcelino Dayao, and Sergio Eduardo. They boarded a jeep, which was parked
near the road and in which there were two others whom Mallillin did not recognize, and then they
drove to the junction of the Cabatuan-Antatet roads. Here they all went down and walked
towards Antatet.
When the party was around 100 meters from the municipal building, he saw his companions
talking to Andres Bumanglag. Taking Bumanglag aside, he informed the latter that he had been
held up. Upon Mallillin's suggestion, his companions asked Bumanglag how the house of Ramil
could be entered, and the latter answered that it could be done through a window near the well.
They also asked further information from him, and thereafter he was allowed to go away, but
with the warning that if he would squeal, he would be put to death.
After Bumanglag had left, they went to a place around fifty meters from the House of Ramil, the
intended victim. Here they waited till about midnight when they approached the house. Gabuni
then ordered Mallillin to stay in a place beside the road. Dasig and Eduardo then gave him their
shoes for him to keep, while the five, including the two unknown persons, approached the house.
Dasig and Eduardo entered the house through the window, while Gabuni stayed at the door in
front. Gabuni gave his carbine to Dayao and Mallillin's Llama pistol to Dasig, while Eduardo held a
.22 caliber pistol.
Five minutes after the three had gone up the house, Mallillin heard three shots. Then he heard a
voice calling for help. He got frightened, so he hurriedly went away bound for Cauayan. While
still in Antatet, he heard the policeman of Antatet exchange shots with his companions. He
arrived in Cauayan at about one o'clock. At around 4:30 that morning, Sergio Eduardo called at
his house and asked for their shoes, and as he went away, he warned Mallillin not to squeal,
otherwise he would be killed. Mallillin asked for his pistol and was informed that it was with
Marcelino Dayao. That same morning he went to Dayao and got it from the latter. Juanito Dasig
also called at his house that same morning, warning him that if he would squeal, he would be in
a bad fix, informing him further that their two companions, whom Mallillin had not recognized,
had gone to Manila to fetch some more of their companions until they reach as many as twenty.

The above is Mallillin's version. He was apprehended by the authorities on December 31, 1949.
Four days before his arrest, he further said, he had decided, after consultation with his wife, to go
to the chief of police of Cauayan to ask him to accompany him to Cabatuan, where he was going
to relate all that had happened, but that it so happened that when he saw the chief of police, the
latter had no time to hear him as he was going away and was then ready with his baggage to go
to Manila.
When Mallillin was taken to the Constabulary barracks on December 31, 1949, he had a talk with
Lieutenant Panis of the Constabulary. Panis promised him that he would be used as a state
witness if he would disclose all that he knew about the robbery. With this promise Mallillin made
a complete disclosure of the above facts to Lieutenant Panis. His statement was put in writing,
although it was not sworn to before the justice of the peace until January 3, 1950. His affidavit
was introduced at the trial as Exhibit 4-Gabuni, Exhibit 3-Dasig-Dayao, and contains substantially
the same facts testified to by him during the trial.
The testimony of Andres Bumanglang is to the effect that that same evening, he had been
playing guitar with two companions at the house of one Labog, and that when they went home
and as they were approaching his house, he was suddenly held up by two persons. When brought
to a group to which the two belonged, he recognized Mallillin, Gabuni, chief of police of Cauayan,
and Dasig. He was asked about the number of policemen of Antatet, the arms that they had, the
caliber of the arms, and the persons who had firearms. Finally, they asked him to draw a sketch
of the house of Norberto Ramil and its position in relation to the house of the mayor, as well as
the position of the window through which entrance could be gained into the house. Bumanglag
was very much frightened because, at the beginning when he refused to answer the questions
that they asked him, he was kicked and threatened by the group. Besides, Mallillin had informed
him that he himself had been held up, and that he should tell what they asked him, otherwise
both of them would be killed. After getting all the information that they desired, Bumanglag was
allowed to go home. A few minutes after he went to bed he heard some shots, and stray bullets
hit his house and a kapok three nearby, so he and his family had to go down the house to seek
shelter from stray bullets.
On January 3, 1950, Andres Bumanglag also made an affidavit before Lieutenant Panis, which
was sworn to by him before the justice of the peace of Antatet. In this affidavit, Exhibit 5-Gabuni,
he mentions the fact that before the robbery a group of persons, four of whom were armed,
came and asked information from him about the house of Norberto Ramil, and that on that
occasion he also saw Mallillin with them, who told him that he was also held up by the group.
The trial court gave credit to the testimonies of Mallillin and Bumanglag as above outlined, and
together with the identification made by the wife of Ramil of one of the appellants by the latter's
stature, and on the further ground that the cartridges and some of the bullets found in the
premises had been fired from the Llama pistol of Mallillin, held that the crime of robbery with
homicide had been committed by the accused-appellants herein, and sentenced them as above
indicated.
In this court the attorneys for the appellants contend that inasmuch as Mallillin's confession was
obtained by a promise made by Constabulary Lieutenant Panis that Mallillin would be excluded
from the information and made a state witness, Mallillin's confession is not admissible against
him and neither should it be admissible against the appellants herein. It is evident that counsel
misunderstands the application of the principle in evidence that a confession secured through
promise of immunity is not admissible. The evidence submitted against the appellants is not the

confession made by Mallillin; it is his testimony given in open court. There is, therefore, no
occasion to invoke the principle of evidence in question.
The most important claim of the defendants-appellants is that inasmuch as Mallillin was an
accomplice in the crime and his testimony contains flaws in many particulars, the maxim Falsus
in uno falsus in omnibus should be applied to the whole of his testimony, and the judgment of
conviction would then have no leg to stand on. There are certainly many points or particulars in
Mallillin's testimony which can not stand careful scrutiny. First of all, we have the supposed
compulsion or hold-up which he claims he was subjected to. Mallillin admits that the defendantsappellants had been his companions in various games, like poker, "pekyo", etc. Then there is the
circumstance that the supposed hold-up took place in the center of the town. According to some
defense witnesses, Mallillin had also been telling of robberies that might take place in town. It is
not unreasonable, therefore, to conclude that Mallillin was not an unwilling companion in the
commission of the crime.
But, on the other hand, we find that his testimony is corroborated by evidence worthy of credit.
That he was present on the occasion of the robbery can not be denied, because his Llama pistol
was proven to have been fired at the scene of the robbery, as cartridges and bullets proved to
have been fired from the said pistol had been found in the house where the robbery was
committed. And the fact that appellants had been companions of Mallillin in many gambling
games points to the close acquaintance between them and their unity of purpose as well. While
his story that it was not he who furnished the data about the climbing of the house can not be
believed, as he must have known the house and its surroundings, his statement that Juanito
Dasig and Sergio Eduardo were the ones who went inside the house is corroborated by the
inmates of the house to the effect that only two of the robbers entered the house.
Again, the testimony about the different arms used, a carbine in the possession of Dayao, a
pistol given Eduardo by Gabuni these facts are corroborated by the finding of .22 caliber slugs
and empty shells in the heart of the victim and in the house and in the premises. The testimony
of Mallillin that Gabuni carried a .45 caliber pistol, which was his service pistol as chief of police,
is also untrue because the examination of the .45 caliber bullet found in the premises shows that
it was not fired from the service pistol of Gabuni. But Mallillin's assertion may be due to an
innocent error on his part. He perhaps thought that the pistol that Gabuni carried was his service
pistol. But Gabuni may have planned to avoid identification by using a firearm different from that
which he used as member of the police force.
Then there is the corroboration of the testimony of Mallillin given by Andres Bumanglag, whom
the trial court considered as a trustworthy witness. We find nothing from the record which would
justify us in reversing the appraisal of the above testimony and the credit given this
corroborating witness by the trial court.
It has been stated that the rule (Falsus in uno falsus in omnibus) invoked is not a mandatory rule
of evidence, but rather a permissible one, which allows the jury or the court to draw the
inference or not to draw it as circumstances may best warrant. (70 C. J. 783.) The unbelievable
allegation of Mallillin, that he was forced into joining the band against his will, arises from the
natural desire of an accomplice to shift the blame to his co-conspirators and exculpate himself;
while his assertion that the gun Gabuni carried was his service pistol may be an innocent mistake
on Mallillin's part. His claim that it was Bumanglag who indicated where access to the victim's
house may be had may also be untrue, because Mallillin had been said to have been in the

house. Do these flaws and defects render his testimony wholly inadmissible under the rule
invoked?
We take advantage of this opportunity to explain the true scope of this much invoked and abused
rule of (Falsus in uno falsus in omnibus.) Professor Wigmore states that this rule ceased to be the
rule in England as early as the beginning of the eighteenth century. He criticizes the board rule
as unsound, because not true to human nature; that because a person tells a single lie, he is
lying throughout his whole testimony, or that there is strong possibility that he is so lying. The
reason for it is that once a person knowingly and deliberately states a falsehood in one material
aspect, he must have done so as to the rest. But it is also clear that the rule has its limitations,
for when the mistaken statement is consistent with good faith and is not conclusively indicative
of a deliberate perversion, the believable portion of the testimony should be admitted. Because
though a person may err in memory or in observation in one or more respects, he may have told
the truth as to others. (III Wigmore, Secs. 1009-1015, pp. 674-683.) There are, therefore, these
requirements for the application of the rule, i.e., that the false testimony is as to a material point,
and that there should be a conscious and deliberate intention to falsify. (Lyric Film Exchange, Inc.
vs. Cowper, 1937, 36 Off. Gaz., 1642.)
The rule is also carefully considered in the case of the Santisima Trinidad, 7 Wheat. 283, 5 Law.
Ed. 454, thus:
"Where a party speaks to a fact in respect to which he cannot be presumed liable to mistake, as
in relation to the country of his birth, or his being in a vessel on a particular voyage, or living in a
particular place, if the fact turn out otherwise, it is extremely difficult to exempt him from the
charge of deliberate falsehood; and courts of justice, under such circumstances, are bound upon
principles of law and morality and justice to apply the maxim falsus in uno, falsus in omnibus.
What ground of judicial belief can there be left when the party has shown such gross insensibility
to the difference between right and wrong, between truth and falsehood?"
In the case of Godair vs. Ham National Bank, 80 N. E., 407, the Supreme Court of Illinois made
the following very illuminating expression of the scope of the rule:
"As to the second criticism, it has uniformly been held by this Court that the maxim, ' falsus in
uno, falsus in omnibus,' should only be applied in cases where a witness has knowingly and
willfully given false testimony. Chittenden vs. Evans, 41 III. 251; City of Chicago vs. Smith, 48 Ill.
107; United States Express Co. vs. Hutchings, 58 Ill. 44; Pope vs. Dodson, Id. 860; Guliher vs.
People, 82 Ill. 145; Swan vs. People, 98 Ill. 610; Hoge vs. People, 117 Ill. 35, 6 N. E. 796; Freeman
vs. Easly, 117 Ill. 317, 7 N. E. 856; Overtoom vs. Chicago & Eastern Illinois Railroad Co., 181 Ill.
323, 54 N. E. 898; Matthews vs. Granger, 196 Ill. 164, 63 N. E. 658.
"In City of Chicago vs. Smith, supra, on page 108 of 48 Ill., it was said: 'As to the eight
instructions asked by the defendant and refused, we are of opinion, under the authority of the
case of Brennan vs. People, 15 Ill. 511, it should not have been given. There the court say it does
not follow, merely because a witness makes an untrue statement, that his entire testimony is to
be disregarded. This must depend on the motive of the witness. If he intentionally swears falsely
as to one matter, the jury may properly reject his whole testimony as unworthy of credit. But, if
he makes a false statement through mistake or misapprehension, they ought not to disregard his
testimony altogether. The maxim, ' falsus in uno, falsus in omnibus,' should only be applied in
cases where a witness willfully and knowingly gives false testimony.

"And in Pope vs. Dodson, supra, on page 365 of 58 Ill.: 'The tenth instruction in the series given
for appellee is palpably erroneous. It told the jury that, if the witness Lovely, 'has sworn falsely in
any material statement,' the jury might disregard her entire statement except so far as it was
corroborated. A witness cannot be discredited simply on the ground of an erroneous statement. It
is only where the statements of a witness are willfully and corruptly false in regard to material
facts that the jury are authorized to discredit the entire testimony. The most candid witness may
innocently make an incorrect statement, and it would be monstrous to hold that his entire
testimony, for that reason, should be disregarded.' This statement was quoted with approval in
Matthews vs. Granger, supra, on page 72 of 196 Ill., on page 661 of 63 N. E.
"In Guliher vs. People, supra, the court instructed the jury that, if they believed the defendant
had 'been contradicted on a material point,' then the jury had the right to disregard his whole
testimony unless corroborated by other testimony. The court said (page 146 of 82 Ill.): 'The
instruction was clearly erroneous. When analyzed, it plainly tells the jury that 'if they believe,
from the evidence, that Alfred F. Foote has been contradicted on a material point, then the jury
have a right to disregard his whole testimony unless corroborated by other testimony.' This is not
the law .. If the witness, whether defendant or otherwise, is shown, by proof, to have sworn
willfully and knowingly false on any material matter, his evidence may be rejected so far as it is
not corroborated .. The mere fact, however, that he is contradicted as to some material matter is
not enough to warrant the rejection of his evidence altogether."
"In Overtoom vs. Chicago & Eastern Illinois Railroad Co., supra, the court instructed the jury that
'if they believe any witness has testified falsely, then the jury may disregard such witness'
testimony except in so far as it may have been corroborated.' In disposing of this instruction the
court said (page 330 of 181 Ill., page 901 of 54 N. E.): 'A witness may have testified falsely upon
some matter inquired about from forgetfulness or honest mistake, and in such case the jury
would not be authorized to disregard his entire testimony, whether corroborated or not. It is the
corrupt motive, or the giving of false testimony knowing it to be false, that authorizes a jury to
disregard the testimony of a witness and the court to so instruct them.'"
With the above limitations of the rule in mind, it is clear that the maxim should not apply in the
case at bar, for three reasons. First, there is sufficient corroboration on many grounds of the
testimony. Second, the mistakes are not on the very material points. Third, the errors do not arise
from an apparent desire to pervert the truth, but from innocent mistakes and the desire of the
witness to exculpate himself though not completely.
The next legal question to decide is whether the credible evidence submitted, together with that
adduced on behalf of the defendants, proves beyond reasonable doubt that it was the three
appellants who participated in the commission of the crime. The evidence submitted by the
appellants of their defenses of alibi are not satisfactory to us. That presented by appellant
Juanito Dasig, which consists of the testimony of a nurse, that on the night in question Dasig was
in his house because his wife was suffering from stomach-ache, is not satisfactory for the reason
that the nurse did not positively state that the date when she went to attend Dasig's wife was
December 23, 1949. This date was included in the leading questions propounded by counsel for
appellants, where the date is insidiously joined with another fact and witness' affirmative answer
may refer to the more important fact contained in the answer, not to the date. Thus, the first
question asked was as follows:
"Q.
Do you remember having attended to the wife of Juanita Dasig sometime or around
December 23, 1949? A. yes, sir." (t. s. n., p. 174).

The affirmative answer may well mean that she did actually attend, and may not imply that she
did so on December 23, 1949. Another question asked was:
"Q.
How many days previous to that trip of yours on December 24, 1949? Was it the day
previous? A. Previous." (t. s. n., p. 176)
This question is a leading question. The witness also connects the night of the robbery with a trip
supposedly made by her with one Dr. Modales. But as to this occasion of the trip, her answer as
to the date is also ambiguous, thus:
"Q. Do you remember the date of that trip of yours with Dr. Modales when you left him in
Antatet? A. It seems to me it was on December 24, 1949." (t. s. n., p. 176; Emphasis ours)
On cross-examination, however, this witness testified that she never keeps a record of the cases
that she attends to every day, and on being asked what cases she attended in December, 1949,
she answered that she can not tell unless she saw her record. Its date, therefore, December 23,
1949, was not remembered by her but put into her mind by the leading questions of counsel. To
convince the court that the attendance took place on December 23rd, it was necessary for her to
have shown that that date appeared in the record that she kept.
The alibi presented by Gabuni is to the effect that on December 23, he and Sergeant Tamani
were together the whole day and evening, and during the evening Gabuni stayed at home. That
Gabuni and Sergeant Tamani should stay in a barrio two kilometers away, on patrol, from nine in
the morning to six in the evening, or fully nine hours, is hard to understand. For them to spend
four more hours drinking and eating together in a restaurant, evidently without their returning to
their offices to report the results of their supposed mission, is still harder to believe. But for them
to eat again at the home of Gabuni, after they had already eaten in a restaurant, is the height of
improbability. Gabuni must have been on vacation that day, not on duty. If Gabuni was really and
actually on patrol on that day, why was not the police blotter submitted? But even if the above
story, improbable as it is, were assumed to be true, and his claim that he was at his house at ten
in the evening and woke up at six in the morning, also true, it is still not impossible for him to
have gone down the house after ten o'clock in the evening to join in the commission of the
robbery, and come back at home in time to be there and wake up at six o'clock in the following
morning.
Neither can the defense of alibi presented by appellant Marcelino Dayao stand the test of careful
scrutiny. That Dayao was with his witnesses on certain days and on the occasions mentioned, in
the case of witnesses Silverio Anies and Juana Molina on the occasion of the presentation of the
latter's claim, and in the case of witness Daniel Yuson on the occasion of a night of gambling,
may be assumed to be true. But their assertion that it was on the precise date, December 23,
1949, that they saw or were with Dayao is difficult to believe. Human memory on dates or days is
frail, and unless the day is an extraordinary or unusual one for the witness, there is no
reasonable assurance of its correctness. Dayao's witnesses did not prove that some
extraordinary or unusual thing had happened on that day, that would have made them
remember it. As to Anies, the presentation of claims is admitted by him to be a common
occurrence, such that he had to admit he can not remember the dates when other similar
applicants saw him. As to witness Yuson, the playing of mahjong was also a common pastime.
Neither Anies nor Yuson presented any writing or book entry where the event or occasion they
mentioned took place. The trial court did not believe their testimony, and we are unable to find
that its conclusion is not borne out by human experience.

Having found that sufficient admissible evidence, worthy of credit, has been adduced to prove
beyond reasonable doubt that the defendants-appellants were the ones who perpetrated the
robbery in question, and the evidence with which they sought to prove their defenses of alibi
having been found to be unsatisfactory, we must affirm, as we hereby affirm, the judgment
appealed from, with costs against the appellants.
So ordered.
Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Bautista Angelo, JJ.,
concur.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

Art. 181. False testimony favorable to the defendants.

Art. 182. False testimony in civil cases.
Art. 183. False testimony in other cases and perjury in solemn affirmation.
11. US v. Ballena 18 Phil 382 183

EN BANC
[G.R. No.L-6294. February 10, 1911.]
THE UNITED STATES, plaintiff-appellee, vs. LEONCIO BALLENA, defendant-appellant.
Buencamino, Diokno, Mapa, Buencamino, Jr., Platon and Lontok for appellant.
Attorney-General Villamor for appellee.
SYLLABUS
1.
SUBORNATION OF PERJURY; ESSENTIAL ELEMENTS WHICH MUST BE PROVEN. There are
certain well-defined and indispensable requisites which must be established in every case of
alleged subornation of perjury before an accused person, charged with (the commission of this
crime, can be convicted. Every essential element constituting the crime of perjury must be
established by competent testimony. The prosecution must show the nature of the proceedings
in which the alleged perjury was committed, the court, or offer, in which, or before whom, the
false oath was taken; that the witness was duly sworn; that the testimony was material, and
false; that the defendant knowingly and will- fully procured another to swear falsely, and that the
witness suborned did testify under circumstances rendering him guilty of perjury.
2.
ID.; "MATERIAL MATTER" DEFINED. The term "material matter" means the main fact
which was the subject of the inquiry, or any circumstance which tends to prove that fact, or any
fact, or circumstance, which tends to corroborate or strengthen the testimony relative to such

inquiry, or which legitimately affects the credit of any witness who testifies. (U. S. vs. Estrana, 16
Phil. Rep., 520.)
DECISION
TRENT, J p:
On the 21st of September, 1909, there was tried in the Court of First Instance of the subprovince
of Masbate criminal case No. 163, entitled "United States vs. Ana Ramirez," in which the
defendant was charged with the crime of perjury. The basis of this prosecution was the false
testimony given by the defendant in a certain criminal case tried in that court wherein one
CiriacoPellejera was defendant, charged with homicide, in that the said Pellejera did, by means of
blows, cause the death of the husband of Ana Ramirez. In this homicide case Ana Ramirez was
called as a witness, and, after being duly sworn, testified that her husband died of fever and that
during his illness, which lasted more than two weeks, she observed no contusions or other
injuries on his body. She denied having testified under oath before the provincial fiscal in the
town of Dimasalang, contrary to her testimony in this case, and she also denied having been in
the house of one Jose Largo for the purpose of testifying with reference to the death of her
husband. Whereas, as a matter of fact, she did testify, under oath, before the said fiscal, in that
town, that her husband died as a direct result of the blows inflicted by Pellejera and that his
death occurred within three days after having received these blows. Ana Ramirez was found
guilty as charged and sentenced accordingly.
In the trial of this perjury case on EstefaniaBarruga, mother of the defendant Ana, was a witness
for the defendant, and at the instigation of one LeoncioBallena she testified that the fiscal,
SeorBailon, at the time he was in Dimasalang making the investigation into the cause of the
death of Ana's husband, attempted to rape her daughter Ana, and asked for the hand of the girl
in marriage, but she did not desire to accept this proposition of the fiscal because he was a
married man.
Subsequently thereto, and on the 29th of September, 1909, the fiscal filed an information in the
Court of First Instance of that province against the said LeoncioBallena, charging him with the
crime of subornation of perjury. Upon this complaint the defendant was duly tried, found guilty,
and sentenced to six month's imprisonment, to pay a fine of P500, to the corresponding
subsidiary imprisonment is case of insolvency, to the accessory penalties provided for by law,
and to pay the costs. From this sentence and judgment the defendant appealed, and now insists
that the testimony by given by EstefaniaBarruga in that perjury case was immaterial to the
issues involved therein. If this contention be true, the defendant is not guilty.
There are certain well-defined and indispensable requisites which must be established in every
case of subornation of perjury before an accused person, charged with the commission of this
crime, can be convicted. Every essential element constituting the crime of perjury must be
established by competent testimony. The prosecution must show the nature of the proceedings
in which the alleged perjury was committed, the court, or officer, in which, or before whom, the
false oath was taken; that the witness was duly sworn; that the testimony was material, and
false; that the defendant knowingly and willfully procured another to swear falsely, and that the
witness suborned did testify under circumstances rendering him guilty of perjury.
In the case at bar the record shows beyond any question of a doubt that the witness Barruga,
after being duly sworn, did knowingly and willfully testify falsely in a criminal case before a duly
constituted tribunal; that this witness so testified at the instigation of the defendant Ballena; and

that the defendant knew that the testimony given by the witness Barruga was false. The witness
so informed the defendant. Notwithstanding this information, the defendant strongly insisted that
by the witness Barruga testifying that the fiscal committed those acts would be the only was to
save her daughter from imprisonment. The defendant not only knowingly and willfully induced
this witness to swear falsely, but he did so maliciously, as it appears from the record that he was
an enemy of the fiscal at that time, the fiscal having prosecuted him previous to this trial. So the
only question to be determined is, as we have said, Was the testimony of Barruga material to the
issues involved in that criminal case against her daughter for perjury? Materiality is an essential
element in the crime of perjury. (U. S. vs. Estraa, 16 Phil. Rep., 520.) It, therefore, necessarily
follows that materiality is likewise an indispensable requisite in the crime of subornation of
perjury, as the latter is derived from the former.
"The term 'material matter' means the main fact which was the subject of the inquiry, or any
circumstance which tends to prove that fact, or any fact, or circumstance, which tends to
corroborate or strengthen the testimony relative to such inquiry, or which legitimately affects the
credit of any witness who testifies." (Quoted with approval in U. S. vs. Estraa, supra.)
In the criminal case in which the witness Barruga gave that false testimony, the main question
involved was whether or not Ana Ramirez testified before the provincial fiscal that her husband
died as a result of the blows inflicted by CiriacoPellejera, as she had testified in the trial of the
case against Pellejera that she did not so testify before the fiscal. It is clear that the false
testimony of Ana Ramirez against Pellejera was material. In the trial of the case against Ana for
perjury there was presented a question of fact as to whether or not Ana testified, under oath,
before the fiscal in that investigation that her husband did in fact die as a result of the wounds
inflicted by Pellejera. The court found this to be true. It was important to know whether or not the
fiscal, at the time Ana testified before him, attempted to rape her or asked her mother for
permission to marry her. If the fiscal had committed these acts they would have constituted a
strong circumstance showing the innocence of Ana. The fiscal was the moving party in the
perjury case and it was upon his sworn complaint that Ana was prosecuted. If he should have
attempted to prosecute Ana after having committed these acts the court would not only have
disbelieved the fiscal, testifying as a witness, but it would have looked upon the whole
prosecution as a fabrication.
The judgment appealed from being in accordance with the law and the merits of the case, same
is hereby affirmed, with costs against the defendant. So ordered.
Arellano, C.J., Mapa, Carson and Moreland, JJ., concur.

12. People v. Cabero 61 Phil 121 -183

EN BANC
[G.R. No. 40574. December 29, 1934.]
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant, vs. HILARIA CABERO, defendantappellee.
Solicitor-General Hilado for appellant.

Yuseco, Ibarra & Arteche for appellee.

SYLLABUS
1.
PERJURY; DISMISSAL OF COMPLAINT BEFORE TRIAL. The lower court held that the facts
alleged in the information filed in this case did not constitute perjury or a violation of the
provisions of article 183 of the Revised Penal Code and dismissed the case before trial. According
to section 44 of the Code of Criminal Procedure, as amended by Act No. 2886, the prosecution
may appeal from an order dismissing a complaint or information.
2.
ID.; ID. While the trial court has ample powers and the writer of this opinion is firmly of
the opinion that such powers should be courageously exercised by the trial court, our Code of
Criminal Procedure contemplates a legal trial according to the regular rules. It does not consider
the possibility that the caprice of the judge would take the place of orderly procedure.
3.
ID.; ID.; PEOPLE vs. RIVERA DISTINGUISHED FROM THE PRESENT CASE. In the case of
People vs. Rivera ([1933], 59 Phil., 236), we held that a false affidavit was not a violation of
article 363 of the Revised Penal Code but did not hold that it would not violate article 183 of the
Revised Penal Code. The indictment in the present case is more complete than in the Rivera case
in that it has an express allegation of guilty knowledge. The holding of the trial court that the
complaint did not properly charge an offense was therefore erroneous.
4.
ID.; ID.; JEOPARDY. For the purposes of the present appeal, it might be sufficient to say
that under section 24 of the Code of Criminal Procedure the plea of jeopardy is an affirmative
plea that must be raised in the trial court.
DECISION
HULL, J p:
Hilaria Cabero was charged with perjury in the Court of First Instance of Rizal. The information
reads:
"The undersigned fiscal accused Hilaria Cabero of the crime of perjury, committed as follows:
"That on or about the 6th day of December, 1932, in the municipality of Caloocan, Province of
Rizal, Philippine Islands, and within the jurisdiction of this court, the said accused, Hilaria Cabero,
presented a written complaint to the court of the justice of the peace of the said municipality of
Caloocan, Province of Rizal, Philippine Islands, duly subscribed and sworn to by her, the said
accused Hilaria Cabero, before Sofronio Abrera, the justice of the peace of the said court and a
competent person authorized by law to administer oaths, in which said complaint she, the said
accused Hilaria Cabero, wilfully, unlawfully and feloniously testified and made the following
affidavit or sworn statement:
"'DENUNCIA
"'La que suscribe, despues de prestar juramento en forma legal, acusa a Teresa Santos, la
acusada arriba nombrada, del delito de lesiones cometido como sigue:
"'Que en o hacia el 4 de diciembre de 1932, en el Municipio de Caloocan, Provincia de Rizal, Islas
Filipinas, y dentro de la jurisdiccion de este Juzgado, la referida acusada, sin motivo justificado y
usando violencia, voluntaria, ilegal, maliciosa y criminalmente asalto, golpeo y agredio a la aqui
denunciante con un instrumento duro, infiriendole en su consecuencia en diferentes partes de su

cuerpo varias contusiones y lesiones que necesitaron unos 15 dias de asistencia facultativa, e
impidiendole a dedicarse a sus que haceres habituales por igual periodo de tiempo. Hecho
cometido con infraccion de la ley. Las contusiones y lesiones inferidas en la persona de la
denunciante se hallan mencionadas en el certificado medico que al efecto se ha expedido.
"'Caloocan, Rizal, hoy 5 de diciembre de 1932.
(Fdo.) "'HILARIA CABERO
"Denunciante, Caloocan, Rizal
"'Suscrita y jurada ante mi hoy 6 de diciembre de 1932, no habiendome exhibido cedula alguna
por ser mujer.
(Fdo.) "'SOFRONIO ABRERA
"'Juez de Paz, Coloocan, Rizal'
when in truth and in fact as the said accused Hilaria Cabero well knew, said complaint,
statements and affidavit made by her as aforesaid were false and untrue, and were so made
upon a material matter in a case in which an oath was required by law."
Upon arraignment the defendant entered a plea of not guilty. Several adjournments were had at
the request of defendant and when the case was called for trial, the fiscal asked for a
continuance showing by documents that the offended party and one of the principal witnesses
was sick in hospital and a policeman, who was also an important witness, was home sick in bed.
After putting to the fiscal certain questions, the court on its own motion dismissed the complaint,
stating (translated):
"After this case was called for trial, the provincial fiscal asked for the postponement thereof
alleging that two of his principal witnesses, being ill, were absent. The petition was opposed by
the defense counsel. In order to know the value of the testimony of said two witnesses, the court
asked the fiscal on what they were to testify, to which the fiscal answered that when said two
witnesses went to the house of the accused, the latter admitted to them that the facts alleged in
the complaint filed by her are false. The fiscal likewise stated in his answer to the court that the
complaint filed by the accused in the justice of the peace court of Caloocan, wherein said
accused alleged the supposedly false facts, had not been acted upon, that no trial was held, that
neither the complainant nor the accused therein has testified under oath, and that this
information was formulated in accordance with article 183 of the Revised Penal Code.
"The information in this case alleges that Hilaria Cabero filed and subscribed under oath a
complaint before the justice of the peace of Caloocan, Rizal, charging Teresa Santos with having
used violence on, assaulted, struck and attacked the complainant (the herein accused), with a
blunt instrument, without any justifiable motive whatsoever, inflicting upon her, as a
consequence thereof, various bruises and injuries on different parts of her body, which required
about fifteen days of medical attendance and incapacitated her from engaging in her customary
work during the same period, notwithstanding that said accused fully knew and was aware that
such facts or allegations are false.
"The information, as formulated, does not fall under article 183 of the Penal Code inasmuch as,
according to the allegations thereof, the alleged false statements have been made in a criminal
case by means of a complaint filed by the herein accused. Therefore the information should be

treated in the light of article 180 of said Code. However, neither can this case prosper under the
latter article on the ground that, from the statements of said fiscal and from the very
information, it may be inferred that said complaint has not been acted upon nor judgment
rendered thereon sentencing the therein accused to a penalty prescribed in any of the four
paragraphs of the latter article, which penalty would be made the basis of the penalty to be
imposed upon the accused if found guilty under article 180.
"Wherefore, the information is hereby dismissed, with costs de oficio. So ordered.
(Sgd.) "VICENTE DE VERA
"Pasig, August 31, 1933."
From this order the Solicitor-General brings this appeal and makes the following assignment of
error:
"The trial court erred in holding that the facts alleged in the information filed in the case at bar
do not constitute perjury or a violation of the provisions of article 183 of the Revised Penal Code,
and in dismissing on that ground the information."
The first question that presents itself for review is whether or not an appeal will lie in this
jurisdiction from the order complained of. Section 44 of the Code of Criminal Procedure as
amended by Act No. 2886 reads:
"SEC. 44.
Either party may appeal from a final judgment or from an order made after
judgment affecting the substantial rights of the appellant. The people of the Philippine Islands
may also appeal from a judgment for the defendant rendered on a demurrer to an information or
complaint and from an order dismissing a complaint or information."
Standing alone, the language of the last clause of section 44 clearly authorizes an appeal such as
here presented. Appellee, however, contends that the statute must be read in connection with
the constitutional provision against double jeopardy, and that while an appeal would lie against
an order solicited by the defendant on motion or by demurrer, it does not lie where the action is
taken by the court.
The exact question has never arisen, so far as we know, in English or American jurisprudence.
While the trial court has ample powers and the writer of this opinion is firmly of the opinion that
such powers should be courageously exercised by the trial court, our Code of Criminal Procedure
contemplates a legal trial according to the regular rules. It does not consider the possibility that
the caprice of the judge would take the place of orderly procedure.
In the instant case the court had before it a well-founded motion for continuance. After an
informal discussion the court did not pass on the matter before it but attempted to dismiss the
complaint sua sponte on its own ideas as to the sufficiency of the complaint. The Code of
Criminal Procedure can be searched in vain for a single sentence that would indicate such a
power in the trial magistrate.
While the court had jurisdiction of the person and of the subject matter and was authorized to
pass upon any question that arose in connection with the case, it cannot be said that the
question of the dismissal of the complaint on motion ever arose. Even the accused could not
present such a motion at that time without consent of court and withdrawing her plea.

The cases of Kepner vs. United States (1 Phil., 397, 519, 727; 195 U.S., 100 1 ), and People vs.
Webb (38 Cal., 467) relied upon by appellee in her brief, are entirely different cases from the
instant one. In the Webb case there was a verdict by a jury. In the Kepner case there was an
acquittal after trial by the Court of First Instance. Erroneous rulings during trial are not subject to
review by the state. Where the statute authorizes a review of erroneous rulings prior to trial, the
statute has always been upheld. In the Kepner case, the majority opinion seemed to give weight
to the idea that section 44 of General Orders, No. 58 had been revoked by subsequent
legislation. It is to be noted that Act No. 2886 was passed some time after the Kepner decision.
The proceedings were not terminated, as the fiscal took prompt exception to the unauthorized
action of the court and the Solicitor-General brought this appeal in the manner and within the
time authorized by statute.
We are therefore constrained to hold that an appeal in such an exceptional case as this, will lie.
The second question is whether the court was correct in holding that the indictment is not good
under either article 180 or article 183 of the Revised Penal Code. There is no contention that it is
good under article 180. The pertinent portions of article 183 read:
"ART. 183. False testimony in other cases and perjury in solemn affirmation. The penalty of
arresto mayor in its maximum period to prision correccional in its minimum period shall be
imposed upon any person who, knowingly making untruthful statements and not being included
in the provisions of the next preceding articles, shall testify under oath, or make an affidavit,
upon any material matter before a competent person authorized to administer an oath in cases
in which the law so requires. . . ."
The indictment in the complaint closely follows article 183 and alleges every fact required by
that article. An affidavit was made upon material matters before a competent person authorized
to administer an oath required by law. It is further clearly alleged that the accused well knew that
the affidavit in question made by her was false and untrue upon the material matters recited. It
would seem that the court had the opinion that an affidavit to a criminal complaint has an
entirely different status from an affidavit for other purposes. In the case of People vs. Rivera
([1933], 59 Phil., 236), we held that a false affidavit was not a violation of article 363 of the
Revised Penal Code but did not hold that it would not violate article 183 of the Revised Penal
Code. The indictment in the present case is more complete than in the Rivera case in that it has
an express allegation of guilty knowledge. The holding of the trial court that the complaint did
not properly charge an offense was therefore erroneous.
The third question presented is whether or not under our ruling in the case of People vs. Ylagan
([1933], 58 Phil., 851), that jeopardy having attached and the trial court having attempted to
dispose of the case, are further proceedings lawful? This question is virtually covered by what we
have said above on the first point. For the purposes of the present appeal, it might be sufficient
to say that under section 24 of the Code of Criminal Procedure the plea of jeopardy is an
affirmative plea that must be raised in the trial court.
Although not within the express language, there are many known exceptions to the jeopardy rule
that have from time to time been declared by the court. Had the occasion arisen, it is just as
reasonable to suppose that an exception to the rule would have been declared from an unlawful
action of the court as it would for the existence of an exception in case of the insanity of the
judge. The accused is no more harmed in the one case than in the other.

Even if following the Ylagan case we should ultimately hold that the accused was placed in
jeopardy by her plea we must hold that the proceedings have not been terminated, as the action
of the trial court was without authority and therefore null and void.

The order appealed from is therefore set aside and declared of no value and the case is
remanded to the court of origin for an orderly determination of the case in the manner provided
by law. Costs against appellee.So ordered.
Street, Malcolm, Villa-Real, Abad Santos, Imperial, Butte, Goddard and Diaz, JJ., concur.
Separate Opinions
VICKERS, J., concurring:
I concur in the result. I wish to point out, however, that in holding the complaint in this case valid
the court in effect reverses its decision in the cases of the People vs. Rivera ([1933], 59 Phil.,
136), from which I dissented. There is no substantial difference between the complaint in the
present case and the complaint in that case. It was of course immaterial that Rivera was charged
with having violated article 363 instead of article 183 of the Revised Penal Code.
Footnotes
1.

11 Phil., 669.

13. People v. Pudol 66 Phil 365 183

EN BANC
[G.R. No. 45618. October 18, 1938.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. ESMINIA PUDOL and ALBERTO REYES,
defendants, ALBERTO REYES, appellee.
Solicitor-General Tuason, for appellant.
Jose F. Singson, Eloy Bello, MaximoSavellano, and M. H. de Joya, for appellee.
SYLLABUS
1.
CRIMINAL LAW; PERJURY; DISMISSAL OF THE INFORMATION AS TO ONE OF THE ACCUSED
IN ORDER TO BE UTILIZED AS A WITNESS AGAINST THE OTHER. The dismissal of this case for
perjury, upon petition of the fiscal, as to the accused, E. P., in order to be utilized as a witness
against her coaccused A. R., was not based on E.P.'s innocence but on the ground that she did
not appear to be the most guilty of the two. This was not tantamount to restoring the
presumption of her innocence, and her discharge did not affect the status of the accused A. R.
(U. S. vs. Abanzado, 37 Phil., 658.)
2.
ID.; ID.; ID.; SUBORDINATION OF PERJURY. The fact that subornation of perjury is not
expressly penalized in the revised in the Revised penal Code does not mean that the direct

induction of a person by another to commit perjury has ceased to be a crime, because said crime
is fully within the scope of that defined in article 17, subsection 2, of the Revised Penal Code.
Furthermore, A. R. is charged in the present case not only as suborner of the perjury committed
by his coaccused but also as principal by cooperation and participation in the preparation of the
false affidavit subscribed by E. P.
DECISION
CONCEPCION, J p:
An information had been filed in the Court of First Instance of Ilocos Sur charging EsminiaPudol
and Alberto Reyes with having committed the crime of perjury, the former by subscribing a false
affidavit by induction and with the further cooperation of the latter.
When the case was called for trial, the provincial fiscal filed a motion asking for the discharge of
EsminiaPudol in order to be utilized as a witness for the prosecution against her coaccused. Upon
arraignment, Alberto Reyes pleaded not guilty, although his plea was withdrawn shortly
thereafter. The court, acting on the fiscal's motion, dismissed the case as to EsminiaPudol for the
purpose intended by said fiscal. The accused Alberto Reyes, in turn, asked for the dismissal of
the case as to him, alleging: (1) That once the case is dismissed as to Pudol, the alleged principal
by direct participation, there is no longer any ground for prosecuting the case against the
suborner Reyes, and (2) that the Revised Penal Code does not penalize subornation of perjury, as
it was formerly penalized by section 4 of Act No. 1697, which has expressly been repealed by
article 367 of said Revised Penal Code. The court, favorably sustaining the first ground of the
motion and deeming it unnecessary to pass upon the second ground, also dismissed the case as
to the accused Alberto Reyes, in an order of December 16, 1936, from which the fiscal appealed.
The first question to be decided in this appeal is that raised indirectly by the accused in his
memorandum citing authorities, to the effect that the order appealed from is an order of
dismissal of the case upon its merits, from which the fiscal cannot appeal. Such contention is
untenable: (1) Because as the accused withdrew his plea of not guilty, he has not yet pleaded to
the information, and in such condition of the case it is legally impossible to decide it upon its
merits, and (2) because the order of dismissal of the court is not an acquittal of the accused.
Therefore, it is appealable (sec. 44, General Orders, No. 58; U. S. vs. Ballentine, 4 Phil., 672).
The second question is that discussed by the Solicitor-General in the two errors attributed to the
court. The order of dismissal is based on the following considerations:
"In the above-quoted motion of the fiscal, it is stated that there is absolute necessity of the
testimony of said accused' EsminiaPudol, because 'there is no other direct evidence to support
the information.' The allegation assumes that it cannot be proven and there is no means of
showing that EsminiaPudol has committed perjury or has given false testimony. If the principal
act, which must be the result of subornation, cannot be proven, it seems clear that even if it
should be shown that there has been subornation, after all the latter does not constitute a
crime."
In the first place, it cannot be inferred from the motion of the fiscal that "there is no means of
showing that EsminiaPudol has committed perjury or has given false testimony." The only thing
stated in the motion is "that there is no other direct evidence to support the information except
the testimony of said accused can be substantially corroborated in its material points."
Consequently, there is no basis for the conclusion laid down by the court that: "If the principal

act, which must be the result of the subornation, cannot be proven, it seems clear according
to it that even if it should be shown that there has been subornation, after all the latter does
not constitute a crime."
The court further states: "if the guilt of the latter (Pudol) cannot be proven and the dismissal of
this case, as to her, restores and places her under the protection of a strong presumption of
innocence, it would seem soundly logical that her said innocence cannot be made the basis of a
judgment of guilt for Reyes."
The court was not right in affirming that the order of dismissal restores to the accused (Pudol)
the presumption of innocence. The fiscal did not ask for the dismissal of the case on the ground
of Pudol's innocence, but because she did not appear to be the most guilty. The fiscal has asked
for her discharge in order to be utilized as a witness for the prosecution against the accused. If
she really testifies in support of the allegations of the information, Act No. 2709 affords her
certain immunity, but this is not tantamount to restoring the presumption of her innocence, and
her discharge does not affect the status of the accused Reyes (U. S. vs. Abanzado, 37 Phil., 658).
As to the second point of the motion of the accused, that is, that the Revised Penal Code does
not penalize subornation of perjury, as it was formerly penalized by section 4 of Act No. 1697,
which has expressly been repealed by article 367 of the Revised Penal Code, suffice it to state
that, according to article 17 of said Code, the following are considered principals:
"1.

...

"2.

Those who directly force or induce others to commit it. (Emphasis ours.)

"3.
Those who cooperate in the commission of the offense by another act without which it
would not have been accomplished."
The information charges Alberto Reyes not only with having directly induced EsminiaPudol to
testify falsely under oath and to subscribe the affidavit before a person authorized by law to
administer oath, but also with having cooperated and taken a direct part in the execution of said
false affidavit, without which induction, cooperation and participation the false affidavit in
question would not have been accomplished.
Therefore, the fact that subornation of perjury is not expressly penalized in the Revised Penal
Code does not mean that the direct induction of a person by another to commit perjury has
ceased to be a crime, because said crime is fully within the scope of that defined in article 17,
subsection 2, of the Revised Penal Code. Furthermore, Alberto Reyes, as already stated, is
charged in the present case not only as suborner of the perjury committed by his coaccused but
also as principal by cooperation and participation in the preparation of the false affidavit
subscribed by EsminiaPudol.
The order appealed from is reversed and this case is ordered remanded to the Court of First
Instance of Ilocos Sur, so that it may proceed with the hearing thereof and decide the same in
accordance with law, with the costs to the appellee. So ordered.
Avancea, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Laurel, JJ., concur.

14. People v. Abaya 74 Phil 59 -183

FIRST DIVISION
[G.R. No. 47710. December 28, 1942.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. FRANCISCO ABAYA, defendant-appellee.
Solicitor-General Ozaeta and Assistant Solicitor Amparo for appellant.
Aurelio Palileo for appellee.
SYLLABUS
CRIMINAL LAW; FALSE TESTIMONY AND PERJURY IN SOLEMN AFFIRMATION (ARTICLE 183 OF THE
REVISED PENAL CODE); LACK OF MALICE ON THE PART OF DEFENDANT. Defendant's undivided
half interest in certain parcels of land was, by virtue of a judgment against him, sold at public
auction to his judgment creditor and the corresponding certificate of absolute sale executed in
favor of the latter. Subsequently, defendant filed a petition for voluntary insolvency, and in the
accompanying schedule of debts and in the inventory of properties, both made by him under
oath, he listed the said undivided half as being among the properties "registered in his name in
the Registry of Property of the Province of Laguna." For the reasons set out in the decision, Held:
That defendant is not guilty of the crime defined and punished in article 183 of the Revised Penal
Code, for which he was prosecuted, as the record fails to show that he maliciously committed the
acts imputed to him.
DECISION
PARAS, J p:
In civil case No. 6190 of the Court of First Instance of Laguna, Zosimo Fernandez obtained on
January 10, 1933, a judgment against the herein defendant, Francisco Abaya, for the sum of
P4,000, with interest at the rate of 10 per cent. To satisfy this judgment, the provincial sheriff
sold at public auction the defendant's undivided half interest in certain parcels of land to Zosimo
Fernandez for the sum of P4,382.99. On March 28, 1934, the sheriff executed the corresponding
certificate of absolute sale. Thereafter, Felicita Abaya, sister of the defendant and owner of the
other undivided half of the aforesaid land, instituted in the Court of First Instance of Laguna an
action against Zosimo Fernandez to recover the interest which the latter bought at the public
auction, on the ground that, prior to said sale, the defendant had conveyed the latter's interest
to Felicita Abaya. On January 28, 1936, judgment was rendered in favor of Zosimo Fernandez,
which judgment was affirmed by the Court of Appeals on December 9, 1937. Subsequently, or on
February 28, 1938, the defendant filed a petition for voluntary insolvency in the Court of First
Instance of Laguna. In the schedule of debts accompanying the petition, the defendant included
the item of P4,000 as a debt to Zosimo Fernandez; and in the inventory of properties, he listed
his undivided half in the land above referred to as being among the properties "registered in his
name in the Registry of Property of the Province of Laguna." Both the schedule and the inventory
were under oath.
On May 4, 1940, the defendant was charged in the Court of First Instance of Laguna with a
violation of article 183 of the Revised Penal Code, in that he so the information alleged
wilfully, maliciously and feloniously stated under oath in his insolvency case that the undivided
half of the land therein mentioned was his, when he fully knew that the same no longer belonged

to him, as it was and still is owned by Zosimo Fernandez. The lower court, sustaining the
defendant's motion to quash, dismissed the information on the ground that the acts charged
therein do not constitute false testimony as defined in article 183 of the Revised Penal Code.
Hence this appeal by the Government.
The appealed judgment is correct. The record fails to show that the defendant maliciously
committed the acts imputed to him. They could not be malicious because, at the time the
petition for insolvency was filed, the land in fact was still registered in the name of the
defendant; and it might have been included in the inventory for fear that he might be accused of
concealing property standing in his name in the registry of property, in violation of the Insolvency
Law. In other words, the defendant who could not be expected to determine the propriety,
from a legal point of view, of the inclusion merely stated a fact in said inventory. The acts
charged could not be malicious as against the defendant's creditors because, instead of
concealing assets, he listed property which should not be included in the inventory. They could
not be malicious as against Zosimo Fernandez because the Torrens titles covering the land and
specified in the inventory, bore annotations of the writ of execution issued in civil case No. 6190
and of the auction sales in favor of Zosimo Fernandez, which of course duly protected the latter's
rights; and the defendant has not made any allegation either in the petition for insolvency or in
the inventory which could militate against or defeat said rights. On the contrary, the defendant
made particular reference in the inventory to civil case No. 6190 and to the auction sales. He
included his indebtedness to Zosimo Fernandez in the schedule, probably in his very desire to be
consistent with the inclusion of the land in the inventory and to safeguard the rights of Zosimo
Fernandez.
The appealed order is hereby affirmed, with costs de oficio.
Yulo, C.J., Moran, Bocobo, and Imperial, JJ., concur.

Art. 184. Offering false testimony in evidence.

Art. 185. Machinations in public auctions.
15. People v. Kapunan 45 Phil 482 185

SECOND DIVISION
[December 8, 1923.]
VICENTE DIAZ, complainant, vs. RUPERTO KAPUNAN, respondent.
Attorney-General Villa-Real for the Government.
Perfecto Gabriel and Rafael Palma for respondent.
SYLLABUS
1.
ATTORNEYS-AT-LAW; SUSPENSION AND DISBARMENT; STIFLING OF BIDS AT PUBLIC SALES.
Public policy discountenances combinations or agreements on the part of bidders at execution

sales, the object and effects of which are to stifle competition. The courts will consider an
agreement between a judgment creditor and one claiming an interest in the thing about to be
sold under an execution, that neither shall bid against the other, as void, unless all parties
concerned know of the arrangement and consent thereto.
2.
ID.; ID.; ID.; ARTICLE 542 OF THE PENAL CODE, CONSTRUED AND APPLIED. Article 542
punishes "any person who shall solicit and gift or promise as consideration for agreeing to refrain
from taking part in any public auction." The crime is consummated by the mere act of soliciting a
gift or promise for the purpose of abstaining from taking part in the auction.
3.
ID.; ID.; ID.; ID.; INSTANT CASE. D, the creditor, and K, the attorney of M, the debtor,
during the sale at auction of the property of M, entered into the following agreement: "We,
Vicente Diaz and RupertoKapunan, both being the bidders at the auction held for the sale of the
properties of SecundinoMendezona, do hereby agree that Don RupertoKapunan should withdraw
his bid and refrain from bidding at the said auction as he does hereby withdraw his bid, and in
consideration thereof, the said Mr. Diaz offers him a premium of one thousand pesos (P1,000)
which, out of consideration to said Don Vicente Diaz, Mr.Kapunan accepts and has, for this
reason, refrained from bidding in competition with said Mr. Diaz, Tacloban, Leyte, December 23,
1922 (Sgd) V. Diaz (Sgd.) RupertoKapunan." Held: That Attorney K has been guilty of a violation
of the provision of article 542 of the penal Code, but certain mitigating circumstances which
exert an influence in his favor, can be taken into consideration.
DECISION
MALCOLM, J p:
This action for malpractice brought by Vicente Diaz against Attorney RupertoKapunan, has to do
with the conduct of Attorney Kapunan during the legal proceedings which followed the business
troubles of Vicente Diaz and Secundino de Mendezona, and particularly relates to the conduct of
Attorney Kapunan in civil case No. 2098 of the Court of First Instance of Leyte. The ultimate
question on which we would concentrate attention concerns the agreement between Diaz and
Kapunan at the time of the sale of the property of Mendezona, whereby Kapunan, on the promise
of Diaz to pay him P1,000, agreed to desist from further participation in the sale, all in alleged
violation of article 1459 of the Civil Code and article 542 of the Penal Code.
Omitting the irrelevant matter interjected into this case, the principal facts of record are the
following:
In 1917, Vicente Diaz and Secundino de Mendezona formed a partnership and entered into
extensive business transactions in the Province of Leyte. The capital of the partnership was
P380,000. Unfortunately, however, the business failed to prosper, with the result that on
liquidation, it was found to have suffered a loss of P67,000. When Diaz and Mendezona came to
settle up their affairs, they eventually formulated a document of sale and mortgage in which
Mendezona recognized a debt in favor of Diaz in the sum of P80,000 and an additional sum of
P10,000 owing to Diaz, laid upon the hacienda "Mapuyo," and to be paid within the term of one
year. When the year had expired Mendezona was not to be found and his family was unable to
meet the payment. There followed the usual proceedings for foreclosure and sale, which, after
considerable delay, resulted in the hacienda's being offered for sale at public auction.
At the time fixed for the sale, December 23, 1922, there appeared Vicente Diaz, accompanied by
his lawyer Emilio Benitez, and Attorney RupertoKapunan. Luis Velarde, the deputy sheriff of

Leyte, is authority for the statement that Kapunan told him that he, Kapunan, was ready to bid
on the property up to P16,000 in order to assist the Mendezona family which was in financial
straits. At any rate, the bidding was opened by Kapunan offering P12,000 for the property and
with Diaz and Kapunan raising the bids until finally Diaz offered P12,500. There the bids stopped
on account of Diaz and Kapunan entering into the agreement, of decisive importance, which we
next quote in full:
"We, Vicente Diaz and RupertoKapunan, both being the bidders at the auction held for the sale of
the properties of SecundinoMendezona, do hereby agree that Don RupertoKapunan should
withdraw his bid and refrain from bidding at the said auction as he does hereby withdraw his bid,
and in consideration thereof, the said Mr. Diaz offers him a premium of one thousand pesos
(P1,000) which, out of consideration to said Don Vicente Diaz, Mr.Kapunan accepts and has, for
this reason, refrained from bidding in competition with said Mr. Diaz.
"Tacloban, Leyte, December 23, 1922.
(Sgd.) "V. DIAZ.

(Sgd.) RUPERTO KAPUNAN."

Following the termination of the sheriff's sale, Diaz on December 26, 1922, gave Kapunan P500
of the P1,000 mentioned in the above quoted document. Diaz further followed the usual
procedure to take over the property of Mendezona pursuant to his bid of P12,500, which covered
the amount of the mortgage with its accumulated interest and with the judicial expenses.
Although it was on December 23, 1922, that Diaz and Kapunan entered into the agreement, Diaz
could only wait until January 4, 1923, following, of lay before this court charges against Attorney
Kapunan for alleged unprofessional conduct. Undoubtedly, before Kapunan had knowledge of the
disbarment proceedings, on January 10, 1923, he presented a motion in the Court of First
Instance on Leyte asking that he be permitted to retain the P500 in question, in part payment of
his professional fees. Later, on February 4, 1923, when Kapunan must have had knowledge of the
disbarment proceedings, he filed another motion, withdrawing his former motion and asking the
court to permit him to turn over the P500 to Diaz, which Judge Causing refused to do on the
ground that it was a personal matter. Nevertheless, on July 10,1923, the clerk of the Court of First
Instance of Leyte handed the P500 to Diaz who, in turn, receipted for that amount.
From correspondence, it further is evident that the family of Mendezona was led to believe that
the P500 would shortly be sent them. Without doubt, the Mendezona family would have been
gratified to receive even the P500 pittance out of the business wreck in Leyte of the senior
Mendezona.
During much of the time here mentioned, Kapunan was the attorney of Mendezona. Kapunan was
given extensive authority by the letter of Mendezona of April 12, 1919. When Kapunan took part
in the sale, it must be assumed the benefit of the client.
It remains to be said that following the presentation of the charges against Attorney Kapunan in
this court, he was given an opportunity to answer, and the usual investigation of his professional
conduct was made by the provincial fiscal of Leyte acting under the supervision of the AttorneyGeneral. From the report of the fiscal, indorsed by the Attorney-General, three charges seem to
have been considered. The first two, relating to Kapunan's attempt to represent both parties in
the case, and to molest and disturb Diaz by frivolous motion, the law officer of the Government
finds not substantiated; and with this conclusion we fully agree. The third charge is more serious
and has to do with Kapunan having intervened in the manner in which he did in the sale of the

property of his client Mendezona. The Attorney-General is of the opinion on this point that the
facts constitute a flagrant violation of the provisions of article 1459 of the Civil Code and article
542 of the Penal Code. "In view thereof, it is recommended that corrective measures
commensurate with the irregularity committed by Attorney Kapunan, be taken against him."
Article 1459 of the Civil Code was held in force in the case of Hernandez vs. Villanueva ([1920],
40 Phil., 775). It provides that the following persons, naming them, "cannot take by purchase,
even at a public or judicial auction, either in person or through the mediation of another." The
provision contained in the last paragraph of said article is made to include lawyers, with respect
to any property or rights involved in any litigation in which they may take part by virtue of their
profession and office. We do not believe this article has been infringed by the respondent
because he has not purchased property at a public or judicial auction and because his
participation of his client. It has been held that an execution sale to the attorney of the
defendant is not unlawful if made in good faith, with the consent of the client, and without any
purpose of defrauding the latter's creditors. (2 R. C. L., 1011; 1 Thorton on Attorneys at Law, pp.
298, 299; Smith vs. Smith [1848], 1 Iowa, 307.)
The more puzzling question relates to the alleged violation by Attorney Kapunan of article 542 of
the Penal Code. This article punishes "any person who shall solicit any gift or promise as a
consideration for agreeing to refrain from taking part in any public auction." The crime is
consummated by the mere act of soliciting a gift or promise for the purpose of abstaining from
taking part in the auction. Not permitting our minds to be confused by the varied explanations of
Diaz and Kapunan, the document formulated by them and hereinbefore quoted, demonstrates
that Kapunan, on the promise of Diaz to pay P1,000, refrained from further participation in the
sale of the property of Mendezona, which is exactly the situation covered by article 542 of the
Penal Code.

Public policy discountenances combinations or agreements on the part of bidders at execution

sales, the objects and effects of which are to stifle competition. The courts will consider an
agreement between a judgment creditor and one claiming an interest in the thing about to be
sold under an execution, that neither shall bid against the other, as void, unless all parties
concerned know of the arrangement and consent thereat. Execution sales should be open to free
and full competition, in order to secure the maximum benefit for the debtor. Article 542 of the
Penal Code is, therefore, a wise provision even though rarely invoked, and should be used to
discourage the stifling of bids at judicial sales. (23 C. J., 647; Packard vs. Bird and Chapman
[1870], 40 Cal., 378; 3 ViadaCodigo Penal, 594.)
We conclude that Attorney Kapunan has been guilty of a technical violation of article 542 of the
Penal Code. but we cannot adopt the vigorous recommendation of the Attorney-General, for we
consider present certain mitigating circumstances which exert an influence in favor of the
respondent. In the first place, as disclosed by the judicial records, no reported prosecution under
article 542 has been attempted, which is eloquent proof of the practical disuse of this article; and
the Spanish jurisprudence, while indicative of the meaning of the article, relies principally on the
decisions of the French Court of Cassation. (See Code of Napoleon, arts. 222, 223; decisions of
the French Court of Cassation of October 16, 1844, May 15, 1857, and January 8, 1863.) In the
next place, the complaint Diaz is equally guilty with the respondent Kapunan. And lastly,
Kapunan appears to have been acting in good faith for his client, although adopting an irregular
procedure, and although attempting to make tardy restitution of the money received by him.

Our judgment is that Attorney RupertoKapunan shall stand reprimanded and that the
complainant, Vicente Diaz, shall immediately return to the clerk of the Court of First Instance of
Leyte the P500 received by Diaz from the clerk and receipted for by Diaz, and the clerk of court
shall transmit the P500 to Secundino de Mendezona or, in case of his absence, to Miss Carmen
de Mendezona. Cost shall be taxed in accordance with the provisions of the Code of Civil
Procedure. So ordered.
Johnson, Avancea, Villamor, Ostrand, and Johns, JJ., concur.
Romualdez, J., did not take part.

Art. 186. Monopolies and combinations in restraint of trade.

Art. 200. Grave scandal.

Art. 201. Immoral doctrines, obscene publications and exhibitions and indecent shows.
16. US v. Samaniego16 Phil 663 -201

FIRST DIVISION
[G.R. No. 5115. November 29, 1909.]
THE UNITED STATES, plaintiff-appellee, vs. MANUEL SAMANIEGO and JUANA BENEDICTO DE
PEREZ, defendants-appellants.
Joaquin Rodriguez Serra, for appellants.
Solicitor-General Harvey, for appellee.
SYLLABUS
1.
ADULTERY; OFFENSES INVOLVING GRIEVOUS SCANDAL OR ENORMITY. In order to sustain
a conviction under article 441 of the Penal Code, for an offense which "offends modesty or good
morals by grievous scandal or enormity," it is essential that the act or acts complained of should
be committed in a public place or within the public knowledge or view. (U.S. vs. Catajay, 6 Phil.
Rep., 398; supreme court of Spain, April 13, 1885, December 14, 1903, January 27, 1908; Viada,
vol. 3, p. 130.)
DECISION
MORELAND, J p:
On the 20th day of December, 1907, the following information was presented to the Court of First
Instance of the city of Manila against the defendants in this case:
"That on or about the 25th day of November, 1907, in the city of Manila, Philippine Islands, the
said Manuel Samaniego did then and there willfully, unlawfully, and feloniously lie with and have
sexual intercourse with the said accused, Juana Benedicto de Perez, who was then and there, as

the said accused Manuel Samaniego then and there well knew, a married woman and the
lawfully wedded wife of Jose Perez Siguenza; and the said accused Juana Benedicto de Perez,
being then and there a married woman and the lawfully wedded wife of the said Jose Perez
Siguenza, did then and there willfully, unlawfully, and feloniously lie with and have sexual
intercourse with the said accused, Manuel Samaniego."
The defendants were arrested under said information and were confined in Bilibid, the said
Samaniego on the 21st day of December, 1907, and the said Juana Benedicto de Perez on the
26th of the same month. After the arrest of the said defendants, Juana Benedicto de Perez, at the
instance of the prosecuting attorney, was examined by three physicians for the purpose of
determining her mental condition. On the 27th day of December, 1907, the doctors made their
report to the Court of First Instance, expressing the opinion that the said Juana Benedicto de
Perez was mentally deranged. On the 7th day of January, 1908, the defendants were tried on the
charge of adultery, as presented in said information, and, after the introduction of the proofs
upon the part of the Government, both the prosecuting attorney and the trial court believed that
the evidence was insufficient to warrant the conviction of either of the defendants, and they
were both accordingly acquitted of that charge. In the judgment acquitting the defendants the
court included permission to the prosecuting attorney to file against either or both of the said
defendants a new information charging them with the crime defined in article 441 of the Penal
Code. On the 8th day of January, 1908, pursuant to such permission, the prosecuting attorney
presented against both of the defendants an information charging them with the crime
mentioned in said article, as follows:
"That on and for many weeks prior to the 27th day of November, 1907, in the city of Manila,
Philippine Islands, the said Juana Benedicto de Perez was a married woman, and that said Manuel
Samaniego knew that she was married and united in the bonds of matrimony with and was the
legitimate consort of Jose Perez Siguenza; that during the period of time above expressed the
said Manuel Samaniego and Juana Benedicto de Perez, willfully, illegally, and criminally and
scandalously, without having any matrimonial tie between them, habitually appeared together in
public places and frequented together places of recreation, suspicious places, vacant houses,
and houses of bad repute, in the daytime as well as in the nighttime; and lewdly and indecently
went to bed together in the house of the husband of the said Juana Benedicto de Perez during
the late hours of the night, dressed only in their night clothes, and indecorously, indecently, and
immodestly embraced each other and caressed each other in the presence of the family,
children, and servants of the said husband of Juana Benedicto de Perez; all with public scandal
and with scandal to the community, and with shame and humiliation to the husband and family
of the said Juana Benedicto de Perez."
After the presentation of this information, it appearing that the proofs under the charge therein
contained would be the same as were those under the charge in the information first herein set
forth, the prosecuting attorney and the attorneys for the defendants agreed to submit and did
submit the case to the court for final determination upon the proofs already taken in the trial on
the charge of adultery. No witness was sworn. On the 5th day of February, 1908, the trial court
rendered a decision in which he found the defendants guilty of the crime charged, condemning
the defendant Samaniego to the penalty of arresto mayor in its maximum degree and ordering
the defendant Juana Benedicto de Perez confined in an asylum for the insane until the further
order of the court. On the same day the defendants excepted to said decision and made a
motion for a new trial. On the 12th day of February said court, upon its own motion, and, so far
as appears of record, without notice to or consent of the defendants or their attorneys made an
order reopening said case "for the purpose only," as expressed in the order, "of receiving

evidence as to the publicity or nonpublicity of the acts charged in the complaint." On the 15th
day of April, following, additional evidence was taken in the case and used by the court as the
basis for a further judgment in the action. This was done over the objections and exception of
defendant's attorneys. On the 18th day of April the court rendered a decision affirming the
judgment rendered by him on the 5th day of February in the same case. In the same decision he
denied defendants' motion for a new trial.
The witnesses for the prosecution during the trial of the defendants on the charge made in the
first information, viz, that of adultery, were Jose Perez, the husband of Juana Benedicto de Perez,
three of his children, and his cochero. The husband testified that Juana, after having lived with
him for more than twenty years, and having borne him more than five children, expressed the
desire to separate from him on account of the physical abuse and ill treatment which she had
received and was receiving at his hands. He testified further that he himself desired to terminate
his marital relations with her and that he wanted a divorce; and, as a preliminary step to that
end, he obtained her arrest at the hands of the police, who, at his request, conducted her in a
patrol wagon publicly through the streets of the city of Manila to an asylum for the insane, where
she was detained and imprisonment against her will. He declared further that the reason why he
thus humiliated and disgraced her and deprived her of her liberty was his ardent desire to save
her soul; that, in ordering her arrest and reclusion, he was acting under the advice and counsel of
various lawyers and doctors. He further testified that, after her arrest, she many times implored
him to give her back her liberty and permit her to return to her family; and that, during one of
such supplications, she admitted to him that the defendant Samaniego was her friend, but, at
the same time, denied that he had ever taken advantage of that friendship in any way whatever.
In attempting to prove the adultery alleged in the information, the prosecution presented as
witnesses the persons above mentioned, viz, Caridad Perez, daughter of the defendant Juana;
Rafael Perez, a student of medicine, 18 years of age, son of the defendant Juana; Concepcion
Perez, 12 years of age, daughter of the defendant Juana; together with the cochero of the family,
all of whom lived with the accused, Juana, and her husband at No. 257 CalleNozaleda, Manila.
According to the testimony of these witnesses, the kitchen and the toilet of the house, No. 257
Nozaleda, are situated on the ground floor. Here slept the cochero in a bed called by the family a
bench. This was the only bed in the lower part of the house which could possibly be used for any
purpose.
On the night of the 6th of November, 1907, the accused, Juana Benedicto de Perez, accompanied
by her daughters, attended a dance given by a friend. The other accused, Samaniego, was also
present. Juana and her daughters returned home late at night. There were then present in the
house the accused, Juana Benedicto de Perez; her three daughters, Caridad, Rosario, and
Conchita, and a friend of Conchita; her son Rafael; a younger son, Manolo; and the cochero.
When the mother and the daughters who had attended the dance with her were preparing for
bed, Conchita discovered that there was a stranger in the lower part of the house and by her
cries brought the household to the spot. She declares in her testimony that when she first saw
the stranger he was near the cochero's bed and, while she was watching the movements of the
stranger, her mother went below and appeared to be talking with him; that not for a moment did
she lose sight of her mother during all the occurrence.
The cochero testified that the stranger was Samaniego and that he came first to the cochero's
bed and talked with him a while, but afterwards the cochero went to sleep, and later, on hearing

the cries of Conchita, he saw Samaniego trying to conceal himself in the kitchen and also
observed that the accused, Juana Benedicto de Perez, was going up and down the stairs.
The married daughter, Caridad, who, it appears, was not at the dance, testified that, when
Conchita informed the family that a stranger was in the lower part of the house, she awoke her
brother Rafael, who accompanied her below, where they found the defendant Samaniego,
dressed only in his drawers; that she gave him a blow in the face and ordered him immediately
to quit the house; that he asked her pardon and requested permission to put on his clothes; that
permission to do so was refused and she and her brother ejected him from the house by force
and later the cochero handed him his clothes over the wall.
Caridad also testified that Samaniego was once at the house and talked with her mother through
the window from the street, and on that occasion her mother delivered to him a pawn ticket; that
once when she and her mother were in a carromata on the streets the defendant approached
them and spoke to her mother. The testimony of Rafael shows that one morning, as he was
returning from the hospital in Quiapo, he saw the defendant Samaniego on foot near the
carromata of his mother in the Botanical Garden talking to her.
Luisa Avesilla testified that the accused, Juana Benedicto de Perez, paid the board of Samaniego
for three months in a restaurant where she was cashier, and that on one occasion Juana ate with
Samaniego in the restaurant. On that occasion she was accompanied by her grandson.
The cochero testified that he frequently had as passengers in the carromata the two defendants;
that on one occasion he had waited for them while they went to a house in Calle Cervantes, and
on another occasion they had gone into a house on CalleMalacaang, the witness supposing that
the house was unoccupied because the accused, Juana, had told him that she was looking for a
house to rent; that the witness at no time observed anything improper in the conduct or
deportment of the two defendants. There is no proof whatever that these places were places of
bad repute or that any of them were unoccupied.
Upon the proofs above stated, which are all of the proofs adduced in the trial on the charge of
adultery and are the same proofs upon which the defendants were acquitted of that charge, the
prosecuting attorney recommended that the defendants be convicted of the crime defined in
article 441 of the Penal Code, of which they stood charge, and the court thereupon convicted
them thereof.
The acts complained of lack many of the elements essential to bring them within the purview of
the article of the Penal Code invoked by the prosecution. Every act that was in anywise public
fails entirely of those qualities which offend modesty and good morals by "grievous scandal or
enormity." The occurrence at the residence on the night of the 6th of November did not have that
publicity which is required by the article of the Penal Code referred to. (U.S. vs. Catajay, 6 Phil.
Rep., 398; supreme court of Spain, April 13, 1885, December 14, 1903, and January 27, 1908;
Viada, vol. 3, p. 130.)
The evidence introduced on the reopening adds nothing to the case already made by the
prosecution. The case was reopened for a particular purpose and the evidence to be introduced,
if any, was restricted to a particular condition, viz, the "publicity or nonpublicity of the acts
charged in the complaint." On the reopening, evidence was presented by the prosecution in
relation to the alleged occurrence between the defendants in Plaza Palacio. Concerning this
incident testimony had already been given on the trial by the witness Rafael Perez. Testimony
was also given on the reopening by the same witness as to an occurrence between the

defendants one morning in the Botanical Garden. In relation to this same event he had already
given his testimony on the trial. His evidence as to these two events given on the reopening of
the case is wholly inconsistent with, if not absolutely contradictory of, his testimony in relation to
the same events given on the trial. Such testimony can have no weight.
The other testimony given on the reopening by this witness and the testimony of the witness
Amadeo Pacheco can have no bearing or weight in the decision of this case because such
testimony relates to acts and relations between the defendants which are not "charged in the
complaint" and concerning which no evidence whatever had been offered on the trial.
In the judgment of this court the evidence fails to show the defendants guilty of the crime
charged.
The judgment of conviction of the trial court is, therefore, reversed, the defendants acquitted and
their discharge from custody ordered.
Arellano, C.J., Torres, Johnson and Carson, JJ., concur.

17. People v. Kottinger45 Phil 352- 201

SECOND DIVISION
[G.R. No. 20569. October 29, 1923.]
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. J. J. KOTTINGER, defendantappellant.
Fisher, DeWitt, Perkins & Brady for appellant.
Attorney-General Villa-Real for appellee.
SYLLABUS
1.
PICTURES, WHETHER OBSCENE OR INDECENT; SECTION 12 OF THE PHILIPPINE LIBEL
CONSTRUED; "ON OTHER MATTER." MEANING OF. Section 12 of the Philippine Libel Law, Act
No. 277, provides punishment, among other things, for any person when keeps for sale, or
exhibits, any obscene or indecent writing, paper, book or other matter. The phrase in the law "or
other matter," was apparently added as a sort of "catch-all." While limited to that which is of the
same kind has its antecedent, it is intended to cover kindred subjects. The rule of ejusdem
generis is by no means a rule of universal application and should be made to carry out, not to
defeat, the legislative intent.
2.
ID.; ID.; "OBSCENITY" DEFINED. The word "obscene" and the term "obscenity" may be
defined as meaning something offensive to chastity; decency, or delicacy.
3.
ID.; ID.; "INDECENCY" DEFINED. Indecency is an act against good behavior and just
delicacy.
4.
ID.; ID.; TEST OF OBSCENITY. The test ordinarily followed by the courts in determining
whether a particular publication or other thing is obscene within the meaning of the statutes, is

whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose
minds are open to such immoral influences and into whose hands a publication or other article
charged as being obscene may fall. Another test of obscenity is that which shocks the ordinary
and common sense of men as an indecency.

5.
ID.; ID.; ID. Laws penalizing obscenity are made for society in the aggregate and not in
particular. The test, therefore, is: What is judgment of the aggregate sense of the community
reached by the publication or other matter? What is the probable reasonable effect on the sense
of decency, purity, and chastity of society extending to the family?
6.
ID.; ID.; RULE UNDER FEDERAL STATUTES. Federal statutes prohibit the use of the mails
for obscene matter and prohibit the importation into the Philippine Islands of all articles, etc., of
obscene or indecent character. "Obscene" as here used signifies that form of immorality which
has relation to sexual impurity. (Swearingen vs. U. S. [1896], 161 U. S., 448.)
7.
ID.; ID.; INSTANT CASE. Held: That pictures which depict the non-Christian inhabitants of
the Philippine Islands as they actually live, without attempted presentation of them in unusual
posture of dress, are not offensive to chastity, or foul, or filthy.
8.
ID.; ID.; GENERAL RULE. Pictures portraying the inhabitants of the country in native
dress and as they appear and can be seen in the regions in which they live, are not obscene or
indecent.
DECISION
MALCOLM, J p:
The question to be here decided is whether or not pictures portraying the inhabitants of the
country in native dress and as they appear and can be seen in the regions in which they live, are
obscene or indecent. Surprising as it seem, the question is one of first impression not alone in
the Philippine Islands, but in the United States, Great Britain, and elsewhere. This will explain
why a case which otherwise would be heard and voted in Division has been submitted to the
court in banc for decision.
On November 24, 1922, detective Juan Tolentino raided the premises known as Camera Supply
Co. at 110 Escolta, Manila. He found and confiscated the post-cards which subsequently were
used as evidenced against J. J. Kottinger, the manager of the company.
Out of these facts arose the criminal prosecution of J. J. Kottinger in the Court of First Instance of
Manila. The information filed in court charged him with living kept for sale in the store of the
Camera Supply Co., obscene and indecent pictures, in violation of section 12 of Act No, 277. To
this information, the defendant interposed a demurrer based upon the ground that the facts
alleged therein did not constitute an offense and were not contrary to law; but the trial court
overruled the demurrer and the defendant duly expected thereto. Following the presentation of
evidence by the Government and the defense, judgment was rendered finding the defendant
guilty of the offenses charged and sentencing him to pay a fine of P50 with subsidiary
imprisonment in case of insolvency, and the costs.
The five errors assigned by defendant-appellant in this court divide themselves into two general
issues. The first point sustained by counsel for the appellant is in nature a technical objection,

growing out of the defendant's demurrer. The second point, in reality the decisive issue, is as
suggested in the beginning of the decision. We will take up the assignments of errors as thus
classified in order.
Act No. 277 is the Philippine Libel Law. But included therein is a section, No. 12, making obscene
or indecent publications misdemeanors. Said section 12 which, it is contended by the
Government, has here been violated, and which, appellant argues, does not apply to the
information and the facts, reads as follows:
"Any person who writes, composes, stereotypes, prints, publishes, sells, or keeps for sale,
distributes, or exhibits any obscene or indecent writing, paper, book, or other matter, or who
designs, copies, draws, engraves, paints, or otherwise prepares any such writing, paper, book,
print, or figure shall be guilty of a misdemeanor and punished by a fine of not exceeding one
thousand dollars or by imprisonment not exceeding one year, or both."
Counsel has gone to the trouble to make a careful analysis of section 12 of the Libel Law which is
intended to bear out his thesis, first, that section 12 does not prohibit the taking, selling and
publishing of alleged obscene and indecent pictures and prints, and second, that the information
in this case charges no offense prohibited by section 12. Recall, however, that the law provides
punishment, among other things, for any person who keeps for sale or exhibits any obscene or
indecent writing, paper, book, or other matter, and that the information charges the defendant,
among other things, with having wilfully and feloniously kept for sale, distribution, obscene and
indecent pictures.
The phrase in the law "or other matter," was apparently added as a sort of "catch-all." While
limited to that which is of the same kind as its antecedent, it is intended to cover kindred
subjects. The rule of ejusdem generis invoked by counsel is by no means a rule of universal
application and should be made to carry out, not defeat, the legislative intent. Even if the phrase
"or other matter" be construed to mean "or other matter of like kind," pictures and postcards are
not so far unrelated to writings, papers, and books, as not to be covered by the general words
(Commonwealth vs. Dejardin [1878], 126 Mass., 46; 30 Am. Rep., 652; Brown vs. Corbin [1889],
40 Minn. 508).
The line of argumentation is more refined than practical. Once conceded that section 12 of Act
No. 277 does not cover the present case, there yet remain for application article 571, No. 2, of
the Penal Code, and section 730 of the Revised Ordinance of the City of Manila. The section of
the Revised Ordinance cited is most specific when it provides in part that no person shall
"exhibit, circulate, distribute, sell, offer or expose for sale, or give or deliver to another, or cause
the same to be done, any lewd, indecent, or obscene book, picture, pamphlet, card, print,
paper ,writing, mould, cast, figure, or any other thing."
While admittedly the information is lacing in precision and while the content of section 12 of the
Libel Law in not as inclusive as it might be, we yet conclude that the information is not fatally
defective, and that said section 12 covers the alleged facts.
We come now to decide the main issue. We repeat that our own researches have confirmed the
statement of counsel that not one parallel case can be found. We must perform reason from the
general to the specific and from universal principle to actual fact.
The pictures which it is argued offend against the law on account of being obscene and indecent,
disclose six different postures of non-Christian inhabitants of the Philippines. Exhibit A carries the

legend "Philippines, Bontoc Woman." Exhibit A-1 is a picture of five young boys and carries the
legend "Greetings from the Philippines." Exhibit A-2 has the legend "Ifugao Belle, Philippines.
Greetings from the Philippines." Exhibit A-3 has the legend "Igorrot Girl, Rice Field Costume."
Exhibit A-4 has the legend "Kalinga Girls, Philippines." Exhibit A-5 has the legend "Moros,
Philippines."
The prosecution produced no evidence proving the postcard obscene and indecent because it
thought the post-cards themselves the evidence of the fact. The fiscal admitted in open court
"that those pictures represented the natives (non-Christians) in their native dress." The
defendant, on the other hand, attempted to show that the pictures are true to life. Dr. H. Otley
Beyer, Professor in the University of the Philippines, corroborated by other witnesses, testified
form this studies in various parts of the Islands, such as the Mountain Province, Abra, Palawan,
and Mindanao and Sulu, that none of the pictures represented posses which he had not observed
on various occasions, and that the costumes worn by the people in the pictures are the true
costumes regularly worn by them. Are such pictures obscene or indecent?
The word "obscene" and the term "obscenity" may be defined as meaning something offensive to
chastity, decency, or delicacy. "Indecency" is an act against good behavior and a just delicacy.
The test ordinarily followed by the courts in determining whether a particular publication or other
thing is obscene within the meaning of the statutes, is whether the tendency of the matter
charged as obscene, is to deprave or corrupt those who minds are open to such immoral
influences and into whose hands a publication or other article charged as being obscene may
fall. Another test of obscenity is that which shocks the ordinary and common sense of men as an
indecency. (29 Cyc., 1315; 8 R. C. L., 312.)
The Philippine statute does not attempt to define obscenity or indecent pictures, writings,
papers, or books. But the words "obscene or indecent" are themselves descriptive. They are
words in common use and every person of average intelligence understands their meaning.
Indeed, beyond the evidence furnished by the pictures themselves, there is but little scope for
bearing on the issue of obscenity or indecency. Whether a picture is obscene of indecent must
depend upon the circumstances of the case. (People vs. Muller [1884], 96 N. Y., 408; 48 Am. Rep.,
635.)
Considerable light can be thrown on the subject by turning to the Federal Laws prohibiting the
use of the mails for the obscene matter and prohibiting the importation into the Philippine
Islands of articles, etc., of obscene or indecent character. (U.S. Rev. Stat., art. 3893; 36 Stat. at
L., 135; 7 Fed. Stat. Ann., 1194, sec. 3 [b].)
"Obscene" as used in the Federal Statutes making it a criminal offense to place in the mails any
obscene, lewd, or lascivious publication, according to the United States Supreme Court and
lesser Federal courts, signifies that form of immorality which has relation to sexual impurity, and
has the same meaning as is given at common law in prosecutions for obscene libel. (Swearingen
vs. U.S. [1896], 161 U.S., 446; U.S. vs. Males {1892], 51 Fed., 41; 6 Words and Phrases, 4888,
4889.)
The case of United States vs. Harmon ([1891], 45 Fed., 414), grew out of an indictment for
depositing an obscene publication in a United States post-office in violation of the Postal Law.
Judge Philips said:
"The statute not undertake to define the meaning of the terms obscene, etc., further then may
be implied by the succeeding phrase,' or other publication of an indecent character.' On the well-

recognized cannon of construction these words are presumed to have been employed by the lawmaker in their ordinary acceptation and use. As they cannot be said to some particular matter,
calling, or profession, but are terms of popular use, the court might perhaps with propriety leave
their import to the presumed intelligence of the jury. A standard dictionary says that "obscene"
mean offensive to chastity and decency; expressing or presenting to the mind or view something
which delicacy, purity, and decency forbid to be exposed.' This mere dictionary definition may be
extended or amplified by the courts in actual practice, preserving, however, its essential thought,
and having always due regard to the popular and proper sense in which the legislature employed
the term. Chief Justice Cockburn, in Rex vs. Hicklyn (L. R. 3 Q.B., 360), said: "The test of
obscenity is this: Where the tendency of the matter charged as obscene is to deprave and
corrupt those whose minds are open to such immoral influence, and into whose hands a
publication of this sort may fall; and where it would suggest to the minds of the young of either
sex, or even to persons of more advanced years, thoughts of the most impure and libidinous
character.' So, also, it has been held that a book is obscene which is offensive to decency or
chastity, which is immodest, which is indelicate, impure, causing lewd thoughts of an immoral
tendency.' U.S. vs Bennet, 16 Blachtf., 338. Judge Thayer, in U.S. vs. Clerke, 38 Fed. Rep., 732,
observed:
" "The word "obscene" ordinarily means something which is offensive to chastity; something that
is foul or filthy, and for that reason is offensive to pure-minded persons. That is the meaning of
the word in the concrete; but when used, as the statute, to describe the character of a book,
pamphlet, or paper, it means containing immodest and indecent matter, the reading whereof
would have a tendency to deprave and corrupt the minds of those into whose hands the
publication might fall whose minds are open to such immoral influences.'
"Laws of this character are made for society in the aggregate, and not in particular. So, while
there may be individuals and societies of men and women of peculiar notions or idiosyncrasies,
whose moral sense would neither be depraved nor offended by the publication now under
consideration, yet the exceptional sensibility, or want of sensibility, of such cannot be allowed as
standard by which its obscenity or indecency is to be tested. Rather in the test, what is the
judgment of the aggregate sense of the community reached by? What is its probable, reasonable
effect on the sense of decency, purity and chastity of society, extending to the family, made of
men and women, young boys and girls, the family, which is the common nursery of mankind,
the foundation rock upon which the state reposes?
" . . . To the pure all things are pure, is too poetical for the actualities of practical life. There is in
the popular conception and heart such a thing as modesty. It was born in the Garden of Eden.
After Adam and Eve ate the fruit of the tree of knowledge they passed from that condition of
perfectly which some people nowadays aspire to, and, their eyes being opened, they discerned
that there was both good and evil; 'and they knew that they were naked; and they sewed fig
leaves together, and made themselves aprons.' From that day to this civilized man has carried
with him the sense of shame, the feeling that were some things on which the eye the mind
should no look; and where men and women become so depraved by the use, or so insensate
from perverted education, that they will not veil their eyes, nor hold their tongues, the
government should perform the office for them in the protection of the social compact and the
body politic."
As above intimated, the Federal statute prohibits the importation of shipment into the Philippine
Islands of the following: "Articles, books, pamphlets, printed matter, manuscripts, typewritten
matter, paintings, illustrations, or objects of obscene or indecent character or subversive of

public order." There are, however, in the record, copies of reputable magazines which circulate
freely thru-out the United States and other countries, and which are admitted into the Philippines
without question, containing illustrations into the Philippines without question, containing
illustrations identical in nature to those forming the basis of the prosecution at bar. Publications
of the Philippine Government have also been offered in evidence such as Barton's "Ifugao Law,"
the "Philippine Journal of Science" for October, 1906, and the Reports of the Philippine
Commission for 1903, 1912, and 1913, in which are found illustrations either exactly the same or
nearly akin to those which are now impugned.
It appears therefore that a national standard has been set up by the Congress of the United
States. Tested by that standard, it would be extremely doubtful if the pictures here challenged
would be held obscene or indecent by any state of Federal court. It would be particularly unwise
to sanction a different type of censorship in the Philippine than in the United States, or for that
matter in the rest of the world.
The pictures in question merely depict persons as they actually live, without attempted
presentation of persons in unusual postures or dress. The aggregate judgment of the Philippine
community, the moral sense of all the people in the Philippines, would not be shocked by
photographs of this type. We are convinced that the post-card pictures in this case cannot be
characterized as offensive to chastity, or foul, or filthy.
We readily understand the laundable motives which moved the Government to initiate this
prosecution. We fully appreciate the sentiments of colleagues who take a different view of the
case. We would be the last to offend the sensibilities of the Filipino people and to sanction
anything which would hold them up to ridicule in the eyes of mankind. But we emphasize that we
are not deciding a question in political theory or in social ethics. We are dealing with a legal
question predicated on a legal fact, and on this question and fact, we reach the conclusion that
there has not been proved a violation of section 12 of the Libel Law. When other cases predicated
on other states of facts are brought to our attention, we will decide them as they arise.
We seem to recall the statement of counsel that the proprietor of the photograph concern whom
he represents would on his own initiative place suitable and explicit inscriptions on the pictures
so that no one may be misled as to them. Indeed, he might even go further and out of
consideration for the natural sensibilities of his customers, withdraw from sale certain pictures
which can be pointed out to him.
We hold that pictures portraying the inhabitants of the country in native dress and as they
appear and can be seen in the regions in which they live, are not obscene or indecent within the
meaning of the Libel Law. Disagreeing but agreeing with him on his main contention, it becomes
our duty to order the dismissal of the information.
Judgment is reversed, the information is dismissed, and defendant-appellant is acquitted with all
costs de oficio. So ordered.
Johnson, Street, Avancea, Villamor, and Johns, JJ., concur.
Mr. Chief Justice Manuel Araullo was present at the time this case was voted and then voted with
Mr. Justice Romualdez. (Sgd.) E. FINLEY JOHNSON.

18. People v. Go Pin 97 Phil 418 -201

FIRST DIVISION
[G.R. No.L-7491. August 8, 1955.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GO PIN, defendant-appellant.
J. Perez Cardenas and Castao & Ampil for defendant.
Solicitor General Querube C. Makalintal and Solicitor Jesus A. Avancea for appellee.
SYLLABUS
1.
CRIMINAL LAW; EXHIBITION OF INDECENT AND/OR IMMORAL PICTURES. Paintings and
pictures of women in the nude, including sculptures of the at kind are offensive to morals where
they are made and shown not for the sake of art but profit would commercial purposes, that is,
when gain and profit would appear to be the main, if not the exclusive consideration in their
exhibition, and the case of art only of secondary or minor importance.
DECISION
MONTEMAYOR, J p:
Go Pin, an alien and a Chinese citizen, was charged with a violation of Article 201 of the Revised
Penal Code for having exhibited in the City of Manila at the Globe Arcade, a recreation center, a
large number of one-real 16-millimeter films about 100 feet in length each, which are allegedly
indecent and/or immoral. At first, he pleaded not guilty of the information but later was allowed
by the court to change his plea to that of guilty which he did. Not content with the plea of guilty
the trial court had the films in question projected and were viewed by it in order to evaluate the
same from the standpoint of decency and morality. Thereafter, and considering the plea of guilty
entered by the accused, and the fact that after viewing the films the trial court noted only a
slight degree of obscenity, indecency and immorality in them, it sentenced the appellant to 6
months and 1 day of prision correccional and to pay a fine of P300, with subsidiary imprisonment
in case of insolvency, and to pay the costs. He is now appealing from the decision.
Go Pin does not deny his guilt but he claims that under the circumstances surrounding the case,
particularly the slight degree of obscenity, indecency and immorality noted by the court in the
films, the prison sentence should be eliminated from the penalty imposed. His counsel brings to
our attention some authorities to the effect that paintings and pictures of women in the nude,
including sculptures of that kind are not offensive because they are made and presented for the
sake of art. We agree with counsel for appellant in part. If such pictures, sculptures and paintings
are shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by
people interested in art, there would be no offense committed. However, the pictures here in
question were used not exactly for art's sake but rather for commercial purposes. In other words,
the supposed artistic qualities of said pictures were being commercialized so that the cause of
art was of secondary or minor importance. Gain and profit would appear to have been the main,
if not the exclusive consideration in their exhibition; and it would not be surprising if the persons
who went to see those pictures and paid entrance fees for the privilege of doing so, were not
exactly artists and persons interested in art and who generally go to art exhibitions and galleries
to satisfy and improve their artistic tastes, but rather people desirous of satisfying their morbid
curiosity and taste, and lust, and for love for excitement, including the youth who because of

their immaturity are not in a position to resist and shield themselves from the ill and perverting
effects of these pictures.
Before rendering sentence the trial court asked the prosecuting attorney for this
recommendation and said official recommended that "considering that the accused Go Pin is an
alien who is supposed to maintain a high degree of morality while he is in the Philippines", and
"considering that he engaged in a very nefarious trade, which degenerates the moral character
of our youth, who are usually the regular customers of his trade", he recommended that
appellant be sentenced to 2 years imprisonment and a fine of P300. Notwithstanding this
recommendation, the trial court as already said, probably considering its opinion that the
pictures were not so obscene, indecent and immoral but only slightly so, gave appellant only 6
months and 1 day of prision correccional in addition to P300 fine.
The penalty imposed by the trial court is within the range provided by Article 201 of the Revised
Code. We are satisfied that in imposing the penalty the trial court made use of its sound
discretion, and we find no reason for modifying the said sentence. The Solicitor General in his
brief even urges that we recommend to the proper authorities that deportation proceedings be
instituted against appellant as an undesirable alien. The trial court could have done this but did
not do so, believing perhaps that it was warranted. We repeat that we do not feel justified in
interfering with the discretion of the trial court in the imposition of the sentence in this case.
In view of the foregoing, the decision appealed from is affirmed, with costs.
Bengzon, Acting C.J., Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion and Reyes,
J.B.L., JJ., concur.

19. People v. Padan101 Phil 749 201

N BANC
[G.R. No.L-7295. June 28, 1957.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARINA PADAN Y ALOVA, COSME
ESPINOSA, ERNESTO REYES and JOSE FAJARDO, defendants.MARINA PADAN Y ALOVA and JOSE
FAJARDO, defendants-appellants.
Augusto Revilla for appellant Jose Fajardo.
W.M. Bayhon for appellant Marina Padan y Alova.
Solicitor General Ambrosio Padilla and Solicitor Jose P. Alejandro for appellee.
SYLLABUS
1.
CRIMINAL LAW; OFFENSE AGAINST MORALS AND DECENCY; CLAIM OF ART. The Supreme
Court has had occasion to consider offenses like the exhibition of still or moving pictures of
women in the nude, which it condemned for obscenity and offensive to morals. In those cases,
one might yet claim that there was involved the element of art; that connoisseurs of the same,
and painters and sculptors might find inspiration in the showing of pictures in the nude, or the

human body exhibited in sheer nakedness as models in tableaux vivants. But an actual exhibition
of the sexual act, preceded by acts of lasciviousness, can have no redeeming features. In it,
there is no room for art. One can see nothing in it but clear and unmitigated obscenity,
indecency and an offense to public morals, inspiring and causing as it does, nothing but lust and
lewdness, and exerting a corrupting influence especially on the youth of the land. Considering
the seriousness of the crime, the relatively severe penalty imposed by the trial court is proper.
DECISION
MONTEMAYOR, J p:
In the Court of First Instance of Manila, Marina Padan, Jose Fajardo y Garcia, Cosme Espinosa, and
Ernesto Reyes were charged with a violation of Article 201 of the Revised Penal Code, said to
have been committed as follows:
That on or about the 13th day of September, 1953, in the city of Manila, Philippines, the said
accused conspiring and confederating together and mutually helping one another, did then and
there willfully, unlawfully and feloniously exhibit or cause to be exhibited inside a building at the
corner of Camba Ext. and Morga Ext., Tondo, this City, immoral scenes and acts, to wit: the said
accused Jose Fajador y Garcia, being then the manager and Ernesto Reyes y Yabut, as ticket
collector and or exhibitor, willfully, unlawfully and feloniously hired their co-accused Marina Palan
y Alova and Cosme Espinosa y Abordo to act as performers or exhibitionists to perform and in
fact performed sexual intercourse in the presence of many spectators, thereby exhibiting or
performing highly immoral and indecent acts or shows thereat."
Upon arraignment, all pleaded not guilty. Later, however, Marina Padan, with the assistance of
her counsel de parte and counsel de oficio, asked for permission to withdraw her former plea of
not guilty, which was granted, and upon rearraignment, she pleaded guilty to the charge. In a
decision dated October 12, 1953, Marina Padan was found guilty as charged and sentenced to six
months and one day of prisioncorreccional and a fine of P200, with subsidiary imprisonment in
case of insolvency, not to exceed one-third of the principal penalty, with the accessory penalties
prescribed by the law, and to pay the proportionate costs. After trial of the three remaining
accused, they were all found guilty; Cosme Espinosa and Ernesto Reyes were sentenced each to
not less than six months and one day of prisioncorreccional and not more than one year, one
month and eleven days of prisioncorreccional, to pay a fine of P500, with subsidiary
imprisonment in case of insolvency, not to exceed one-third of the principal penalty, and to pay
the proportionate costs. Jose Fajardo was sentenced to not less than one year, one month and
ten days of prisioncorreccional and not more than one year eight months and twenty days, also
of prisioncorreccional, to pay a fine of P1,000, with subsidiary imprisonment in case of
insolvency, not to exceed one-third of the principal penalty and to pay the proportionate costs.
The army steel bed, the army woolen blanket, the pillow, the ladies' panties, and the men's
underwear, described in Exhibit C, were declared confiscated.
The four accused appealed in the decision, the appeal having been sent to us. Appellants
Espinosa and Reyes failed to file their briefs within the period prescribed by law and their appeal
was dismissed by resolution of this Court of November 25, 1955, and the decision as to them
became final and executory on January 7, 1956, as appears from the entry of judgment.
Because of her plea of guilty in the lower court, appellant Marina in her appeal does not question
her conviction; she merely urges the reduction of the penalty by eliminating the prison sentence.
We do not feel warranted in interfering with the exercise of discretion in this matter, made by the

lower court presided by Judge Magno S. Gatmaitan. According to his decision of October 12,
1953, in imposing the sentence, he already considered Marina's plea of leniency, and so despite
the recommendation of the fiscal that she be fined P600.00 in addition to the prison sentence of
six months and one day, his honor reduced the fine to only P200.
We believe that the penalty imposed fits the crime, considering its seriousness. As far as we
know, this is the first time that the courts in this jurisdiction, at least this Tribunal, have been
called upon to take cognizance of an offense against morals and decency of this kind. We have
had occasion to consider offenses like the exhibition of still or moving pictures of women in the
nude, which we have condemned for obscenity and as offensive to morals. In those cases, one
might yet claim that there was involved the element of art; that connoisseurs of the same, and
painters and sculptors might find inspiration in the showing of pictures in the nude, or the human
body exhibited in sheer nakedness, as models in tableaux vivants. But an actual exhibition of the
sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no
room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an
offense to public morals, inspiring and causing as it does, nothing but lust and lewdness, and
exerting a corrupting influence specially on the youth of the land. We repeat that because of all
this, the penalty imposed by the trial court on Marina, despite her plea of guilty, is neither
excessive nor unreasonable.

Going to the appeal of Jose Fajardo y Garcia, while he does not deny the fact of the commission
of the offense charged, he insists that he was not the manager or the person incharge of the
show or proceedings on the night of September 13, 1953; that his participation, if he participated
at all, was to play the role of an innocent bystander, but that because of his popularity in the
neighborhood, being popularly known as a "siga-siga" character, he was requested by the
spectators to select the man and the woman to engage or indulge in the actual act of coitus
before the spectators; that after making the selection, he did not even care to witness the act
but left the scene and returned to it only when he heard a commotion produced by the raid
conducted by the police.
The evidence on his active participation and that he was the manager and one in charge of the
show is however ample, even conclusive. We have carefully examined such evidence, and we are
satisfied that they fully support the findings of the trial court. Such facts may be briefly stated as
follows: At the corner of Morga Extension and Camba Extension, Tondo, Manila, was a one story
building which judging from the picture exhibited is nothing but a shed, with a floor space of
eight by fifteen meters which was mainly used for playing ping-pong. A ping-pong table must
have been placed in the center and on two sides were built benches in tiers, so that the
spectators seated on them could look down and see the game. On September 13, 1953,
however, the building was used for a different purpose. It was to be the scene of what was said
to be an exhibition of human "fighting fish", the actual act of coitus of copulation. It must have
been advertised by word of mouth; tickets therefor were sold at P3 each, and the show was
supposed to begin at 8:00 o'clock in the evening. About that time of the night, there was already
a crowd around the building, but the people were not admitted into it until about an hour later,
and the show did not begin until about 9:15. The Manila Police Department must have gotten
wind of the affair; it bought tickets and provided several of its members who later attended the
show, but in plain clothes, and after the show conducted a raid and made arrests. At the trial,
said policemen testified as to what actually took place inside the building. About two civilians
who attended the affair gave testimony as to what they saw.

The customers not provided with tickets actually paid P3 at the entrance to defendant Ernesto
Reyes. He also collected tickets. In all, there were about ninety paying customers, while about
sixteen were allowed to enter free, presumably friends of the management. Jose Fajardo y Garcia
was clearly the manager of the show. He was at the door to see to it that the customers either
were provided with tickets or paid P3.00 entrance fee. He even asked them from whom they had
bought the tickets. He ordered that an army steel bed be placed at the center of the floor,
covered with an army blanket and provided with a pillow. Once the spectators, about 106 in
number, were crowded inside that small building, the show started. Fajardo evidently to arouse
more interest among the customers, asked them to select among two girls present who was to
be one of the principal actors. By pointing to or holding his hand over the head of each of the two
women one after the other, and judging by the shouts of approval emitted by the spectators, he
decided that defendant Marina Padan was the subject of popular approval, and he selected her.
After her selection, the other woman named Concha, left. Without much ado, Fajardo selected
Cosme Espinosa to be Marina's partner. Thereafter, Cosme and Marina proceeded to disrobe
while standing around the bed. When completely naked, they turned around to exhibit their
bodies to the spectators. Then they indulged in lascivious acts, consisting of petting, kissing, and
touching the private parts of each other. When sufficiently aroused, they lay on the bed and
proceeded to consummate the act of coitus in three different positions which we deem
unnecessary to describe. The four or five witnesses who testified for the Government when asked
about their reaction to what they saw, frankly admitted that they were excited beyond
description. Then the police who were among the spectators and who were previously provided
with a search warrant made the raid, arrested the four defendants herein, and took pictures of
Marina and Cosme still naked and of the army bed, which pictures were presented as exhibits
during the trial.
From all this, there can be no doubt that Jose Fajardo y Garcia contrary to what he claims, was
the person in charge of the show. Besides, as found by the trial court and as shown by some of
the tickets collected from the spectators, submitted as exhibits, said tickets while bearing on one
side printed matter regarding an excursion to Balara to be held on August 30, 1953, from 7:00
a.m. to 5:00 p.m., sponsored by a certain club, on the other side appears the following
typewritten form, reading:
"P3.00 Admit one
PLEASURE SHOW
Place: P. Morga Ext. and Camba Ext.
Time: 8:00 o'clock sharp",
and superimposed on the same is the rubber stamped name "PepeFajardo," which defendant
Fajardo admits to be his name. Considering all the above circumstances, we agree with the trial
court that Jose Fajardo is the most guilty of the four, for he was the one who conducted the show
and presumably derived the most profit or gain from the same.
As regards the penalty imposed by the trial court on appellant Fajardo, we agree with the
Solicitor General that the same is correct, except the minimum thereof which is beyond the legal
range, and which should be reduced from one year, one month, and ten days of
prisioncorreccional to only six months of arresto mayor.

With the modification above-mentioned, the decision appealed from by Marina Padan and Jose
Fajardoare hereby affirmed, with costs against both.
Paras, C.J., Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Endencia and
Felix, JJ., concur.

Art. 202. Vagrants and prostitutes; penalty.

Art. 203. Who are public officers.

20. Maniego vs. People, 88 Phil 494 -203

EN BANC
[G.R. No.L-2971. April 20, 1951.]
FELICIANO MANIEGO y CATU, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent.
Llorente & Yumul, for petitioner.
Solicitor General Felix Bautista Angelo and Solicitor Augusto M. Luciano, for respondent.
SYLLABUS
1.
CRIMINAL LAW; DIRECT BRIBERY; ESSENTIAL ELEMENTS. The four essential elements of
the crime of direct bribery are: (1) that the accused is a public officer within the scope of article
203 of the Revised Penal Code; (2) that the accused received by himself or thru another; some
gift or present, offer or promise; (3) that such gift, present or promise has been given in
consideration of his commission of some crime or any act not constituting a crime; and (4) that
the crime or act relates to the exercise of the functions of the public officer.
2.
ID.; ID.; LABORER DEEMED A PUBLIC OFFICER; REVISED PENAL CODE, ARTICLE 203. A
person appointed as a laborer is a public officer within the meaning of article 203 of the Revised
Penal Code. For the purposes of the Penal Code, the standard distribution in the law of public
officers between "officer" and "employee" is obliterated.
3.
ID.; ID.; TEMPORARY PERFORMANCE OF PUBLIC FUNCTIONS. Where a person, although
originally appointed as a mere laborer is, on several occasions, designated or given the work of
preparing motions for dismissal of traffic cases, he is deemed temporarily discharging such
public functions and if in the performance thereof he accepts, even solicits, a monetary reward,
he is guilty of bribery.
DECISION
BENGZON, J p:
This petitioner was convicted, by the Fifth Division of the Court of Appeals, of a violation of article
210 of the Revised Penal Code. He pleads for acquittal, insisting upon purely legal points.

The facts found by that appellate court are substantially the following:
"That on February 27, 1947, the accused, although appointed as a laborer, had been placed in
charge of issuing summons and subpoenas for traffic violations in the Sala of Judge Crisanto
Aragon of the Municipal Court of the City of Manila. It appears furthermore, from the testimony of
Clerk of Court Baltazar and Fiscal De la Merced, then Deputy Fiscal attending to traffic violations,
that the accused had been permitted to write motions for dismissal of prescribed traffic cases
against offenders without counsel, and to submit them to the Court for action, without passing
through the regular clerk. On the day in question, Felix Raba, the complainant herein, appeared
and inquired from the accused about a subpoena that he received. He was informed that it was
in connection with a traffic violation for which said Rabia had been detained and given traffic
summons by an American MP. The accused after a short conversation went to Fiscal De la Merced
and informed the Fiscal that the case had already prescribed. The Fiscal having found such to be
the case, instructed the accused that if the traffic violator had no lawyer, he could write the
motion for dismissal and have it signed by the party concerned. This was done by the accused
and after the signing by Felix Raba the matter was submitted to the Court, which granted the
petition for dismissal.
"According to Felix Rabia and Agent No. 19 (Laforteza) of the National Bureau of Investigation,
the accused informed Rabia that the latter was subject to a fine of P15; that Rabia inquired
whether the same could be reduced because he had no money, and that the accused informed
Rabia that he could fix the case if Rabia would pay him P10; which Rabia did and the accused
pocketed. This charged was denied by the accused."
The pertinent portion of article 210 of the Revised Penal Code reads:
"Any public officer who shall agree to perform an act constituting a crime, in connection with the
performance of his official duties, in consideration of any offer, promise, gift or present received
by such officer, personally or through the mediation of another, shall suffer the penalty of prision
correccional in its minimum and medium periods and a fine of not less than the value of the gift
and not more than three times such value, in addition to the penalty corresponding to the crime
agreed upon if the same shall have been committed.
If the gift was accepted by the officer in consideration of the execution of an act which does not
constitute a crime, and the officer executed said act, he shall suffer the same penalty provided in
the preceding paragraph. . . .."
As correctly indicated by counsel for petitioner the four essential elements of the offense are: (1)
that the accused is a public officer within the scope of article 203 of the Revised Penal Code; (2)
that the accused received by himself or thru another, some gift or present, offer or promise; (3)
that such gift, present or promise has been given in consideration of his commission of some
crime or any act not constituting a crime; (4) that the crime or act relates to the exercise of the
functions of the public officer.
There can be no question that petitioner was a public officer within the meaning of article 203,
which includes all persons "who, by direct provision of law, popular election or appointment by
competent authority, shall take part in the performance of public functions in the Philippine
Government, or shall perform in said government or any of its branches, public duties as an
employee, agent or subordinate official or any rank or class." That definition is quite
comprehensive, embracing as it does, every public servant from the highest to the lowest. For

the purposes of the Penal Code, it obliterates the standard distinction in the law of public officers
between "officer" and "employee".
Petitioner, however, contending that the Court of Appeals erred in regarding him as a public
officer, expounded and discussed several grounds arranged under the following headings:
"a.
The doctrine of 'the temporary performance of public functions by a laborer' should not
apply in defendant's case.
b.
The overt act imputed on the accused does not constitute a circumstance by which he
may be considered a public official.
c.
His appointment as laborer came from one source, while the designation and delimitation
of the functions of his appointment came from another source.
After having carefully considered the expository argumentation, we are unconvinced. The law is
clear, and we perceive no valid reason to deny validity to the view entertained by the Spanish
Supreme Court that, for the purposes of punishing bribery, the temporary performance of public
functions is sufficient to constitute a person a public official. This opinion, it must be stated, was
followed and applied by the Court of Appeals because the accused, although originally assigned
to the preparation of summons and subpoenas, had been allowed in some instances to prepare
motions for dismissal of traffic cases.
And this Tribunal has practically concurred with the Spanish court when it opined 1 that a laborer
in the Bureau of Posts temporarily detailed as filer of money orders was a public officer within the
meaning of article 203 of the Revised Penal Code. Indeed, common sense indicates that the
receipt of bribe money is just as pernicious when committed by temporary employees as when
committed by permanent officials.
The second essential element has likewise been proven. The Court of Appeals said this petitioner
received ten pesos from Rabia (and pocketed the money) in consideration of his "fixing" Rabia's
case, and thereafter he "fixed" it by filing a motion for dismissal, which was approved in due
course.
In connection with the last two elements of the offense, it should be stated that our
pronouncements under the first sufficiently answer petitioner's propositions elaborated in several
parts of his brief, revolving around the thesis that since he was a mere laborer by appointment
he may not be convicted, because the preparation of motions for dismissal is not surely the
official function of a laborer. Enough to recall that although originally appointed as a mere
laborer, this defendant was on several occasions designated or given the work to prepare
motions for dismissal. He was consequently temporarily discharging such public functions. And
as in the performance thereof he accepted, even solicited, a monetary reward, he is certainly
guilty as charged.
Wherefore, there being no issue about the penalty imposed, the decision of the Court of Appeals
is affirmed in toto. With costs.
Paras, C.J., Feria, Pablo, Tuason, Montemayor, Jugo and Bautista Angelo, JJ., concur.
Footnotes
1.

People vs. Palomo, 40 Off. Gaz., 10th Supp. p. 2087.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.
Art. 204. Knowingly rendering unjust judgment.
21. Evangelista v. Hon Baes 61 SCRA 475 -204

RST DIVISION
[A.C. No. 584-CAR. December 26, 1974.]
SERVILLANO EVANGELISTA, complainant, vs. JUDGE JUAN A. BAES, respondent.
[A.C. No. 585-CAR. December 26, 1974.]
PACIANO BASUAN, complainant, vs. JUDGE JUAN A. BAES, respondent.
[A.C. No. 586-CAR. December 26, 1974.]
SILVESTRE MASA, complainant, vs. JUDGE JUAN A. BAES, respondent.
[A.C. No. 741-CAR. December 26, 1974.]
TORIBIO LESCANO, complainant, vs. JUDGE JUAN A. BAES, respondent.
[A.C. No. 1275. December 26, 1974.]
DANILO SAN GIL, complainant, vs. JUDGE JUAN A. BAES, respondent.
RESOLUTION
CASTRO, J p:
Except for the first, each of the above-captioned cases involves multiple administrative charges
filed against Judge Juan A. Baes of the Court of Agrarian Relations, Branch I, 7th Regional District.
In the first "case" captioned "Servillano Evangelista vs. Judge Juan A. Baes," Evangelista, in an
unverified letter, requests this Court "to require the Court of Agrarian Relations . . . to decide
the . . . case (Servillano Evangelista vs. Josefina Calupitan, CAR Case No. 1773), within the
reglementary period as provided for in the New Constitution," the same having allegedly pended
decision since 1970.
The letter can by no means be regarded as a complaint as it does not comply with the requisites
of a complaint, as set forth in Section 1 of Rule 140 of the Rules of Court.
"Section 1. Complaint. All charges against judges of first instance shall be in writing and shall
set out distinctly, clearly, and concisely the facts complained of as constituting the alleged
serious misconduct or inefficiency of the respondent, and shall be sworn to and supported by
affidavits of persons who have personal knowledge of the facts therein alleged, and shall be
accompanied with copies of documents which may substantiate said facts."
This provision equally applies to judges of agrarian relations, as provided by Section 144 of
Republic Act 3844, which reads in pertinent part as follows:

"The judge may be suspended or removed in the same manner and upon the same grounds as
judges of the Court of First Instance."
Because Evangelista's letter is not sworn to, does not set out facts constituting any alleged
serious misconduct or inefficiency of the respondent, and merely requests this Court to order the
agrarian court to decide a certain case within a specified period, the said letter may not properly
be treated as an administrative complaint.
Administrative Case No. 585-CAR
Paciano Basuan vs. Judge Juan A. Baes
Judge Baes is here charged with (1) knowingly rendering an unjust judgment in violation of art.
204 of the Revised Penal Code, and (2) a violation of the Anti-Graft and Corrupt Practices Act.
The first charge. Ferardo Baeuan, one of the plaintiffs in CAR Case No. 1438, failed to appear at
the pre-trial, but Paciano Basuan, his co-plaintiff, appeared. For failure of Farardo to appear,
Judge Baes ordered the dismissal of the entire case, thus affecting also Paciano, which should not
have been the case. The order is indeed erroneous, but the motivation for its issuance excludes
malice or a deliberate attempt on the part of the respondent to cause injustice. The transcript of
the stenographic notes taken at the pre-trial indicates that the hearing of the case had been
postponed several times at the behest of the plaintiffs; that they were previously warned that the
pre-trial would proceed whether they had a lawyer or not; that despite this warning, Paciano
appeared without counsel.
This Court has had occasion to restate a fundamental rule of long standing, which is, that a
judicial officer, when required to exercise his judgment or discretion, is not liable criminally for
any error he commits provided he acts in good faith, and that he may be held liable for
knowingly rendering an unjust judgment only if it is shown beyond cavil that the judgment is
unjust as being contrary to law or as not supported by the evidence, and the same was rendered
with conscious and deliberate intent to do an injustice. 1 There being good faith on the part of
the respondent judge in the issuance of the questioned order, the charge should be dismissed.
The second charge. The respondent admits having sat and partly acted in CAR Case No. 1438
wherein his nephew-in-law, Atty. Manuel M. de Baybay, was the counsel for the defendant Manuel
Solomon. In his answer to the complaint, the respondent does not controvert the charge that he
violated Section 1 of Rule 137 of the Rules of Court which bars a judge from sitting in any case in
which he is related to any counsel appearing before him within the fourth degree, 2 and in his
"Supplemental Comment" he merely alleges that he "subsequently disqualified himself from
sitting in the case without hearing even partially a single witness." The respondent's subsequent
inhibition does not extenuate his culpability. The rule which he violated is intended to free courts
from any suspicion of bias and prejudice. In view of the undisputed violation, a reprimand on the
respondent is in order.
Administrative Case No. 586-CAR
Silvestre Masa vs. Judge Juan A. Baes
The complaint in this case recites two charges.
The first charge. Judge Baes is charged with knowingly, or by reason of inexcusable negligence
or ignorance, rendering unjust orders. The orders referred to are: (1) the resolution dated June

11, 1968, setting aside the resolution dated February 20, 1964 which was issued by the
respondent's predecessor, Judge Artemio Macalino in CAR Case No. 959; and (2) the order dated
October 8, 1969, directing the execution of the decision of Judge Pastor De Guzman, dated April
23, 1963, which had been superseded by Judge Macalino's aforesaid resolution.
In CAR Case No. 959 Judge De Guzman authorized landholder Jose Tan Kapoe to eject his tenant
Silvestre Masa. On May 8, 1963 Masa's counsel moved to reconsider; Judge Macalino, then the
presiding judge, ordered the clerk of court to furnish a copy of the motion to Tan Kapoe's counsel.
As no opposition to the motion was interposed, Judge Macalino reconsidered Judge De Guzman's
decision, and rendered on February 20, 1964 a decision denying the petition for ejectment of
Masa and adjudging a leasehold system of tenancy between Tan Kapoe and Masa. Three and a
half years later, Judge Macalino, on petition of Masa, rendered a supplemental decision fixing the
rental on the landholding. On April 2, 1968 Tan Kapoe moved for reconsideration of not only the
supplemental decision but also the decision of February 20, 1964. Judge Baes granted Tan
Kapoe's motion for reconsideration, with the justification that Judge De Guzman's prior decision
had become final and executory allegedly because the motion for its reconsideration that was
granted by Judge Macalino was fatally defective for lack of proof of service.
Judge Baes' justification for his orders of June 11, 1968 and October 8, 1969 was rejected in Masa
vs. Baes, et al., L-29784, May 21, 1969, 28 SCRA 263, where this Court held, inter alia, that the
alleged non-service upon Tan Kapoe of a copy of Masa's motion to reconsider Judge De Guzman's
decision "is belied by the record" and that Tan Kapoe was in estoppel to deny his receipt of a
copy of the motion for reconsideration.
While Judge Baes acted in abuse of discretion in issuing the orders complained of, it does not
necessarily follow that he acted in bad faith or that his abuse of discretion signifies ignorance of
the law on his part. Abuse of discretion by a trial court does not necessarily mean ulterior motive,
arbitrary conduct or willful disregard of a litigant's rights.
The second charge. Judge Baes is here charged with a violation of the Anti-Graft and Corrupt
Practices Act, consisting of his participation as judge in CAR Case No. 959, despite the fact that
before his appointment to the Bench he was the lawyer of Tan Kapoe in the naturalization
proceedings filed by the latter.
The uncontroverted supporting documents attached to the complaint show that on November 24,
1947 and January 5, 1948, respectively, Judge Fidel Ibaez of the Court of First Instance of
Laguna granted two requests of Atty. Juan A. Baes for the postponement of the hearing of Tan
Kapoe's petition for naturalization. On the other hand, Judge Baes attached as an annex to his
comment on the complaint a certification by the clerk of court that "there appears no pleading or
any paper signed by Atty. Juan A. Baes" in the naturalization case and that the only lawyers
furnished copies of the decision were Atty. Alfonso Farcon and the Provincial Fiscal of Laguna; in
another annex to the respondent's comment, which is a sworn certification, Atty. Farcon states
that he was the one retained as Tan Kapoe's counsel. The respondent judge claims, and this is
not denied by the complainant Masa, that he merely accommodated a brother lawyer. From
these uncontroverted allegations and unchallenged documents emerge the findings that the
respondent judge had no lawyer-client relationship with Tan Kapoe, that his participation in the
naturalization case was miniscule, and that the accommodation was fraternally rendered. These
are sufficiently good grounds to absolve the respondent from the second charge.
Administrative Case No. 741-CAR

Toribio Lescano vs. Judge Juan A. Baes

The charges in this complaint, namely, issuance of an unjust interlocutory order, unjust vexation,
corrupt practices, oppression, abuse of discretion and improper use of the Constabulary, are
substantially the same questions invoked in the complainant Toribio Lescano's petition for
certiorari filed with this Court and docketed as "L-37477, Toribio Lescano vs. Hon. Juan A. Baes,
etc., et al." Said petition for certiorari is pending decision and therefore, sub judice; hence, the
present complaint should be dismissed as premature.
Administrative Case No. 1275
Danilo San Gil vs. Judge Juan A. Baes
Danilo San Gil seeks the disbarment of the respondent judge on three grounds, namely, (1)
inefficiency, for allegedly incurring in delay in resolving two motions in CAR Case No. 2064; (2)
extortion, for having allegedly demanded from Geronimo de los Reyes, the complainant's
grandfather, "for countless times both directly and indirectly . . . considerable amounts of
money;" and (3) abuse of authority, for having ordered the arrest of Geronimo de los Reyes for
disobedience of a court order issued in CAR Case No. 425 "without giving him a chance to explain
and without complying with the requirements in proceedings for indirect contempt, thereby
depriving him of his constitutional right to due process of law."
The first charge is a reckless accusation. CAR Case No. 2064 was never assigned to Judge Baes;
it was tried by Commissioner Fernando B. Dimaculangan and decided by Executive Judge Artemio
Macalino. The two motions attached as Annexes "A" and "B" to the administrative complaint and
whose resolution was allegedly delayed were unquestionably addressed to the commissioner, not
to Judge Baes; and the resolution of the Court of Appeals on September 25, 1973 in its case G.R.
No. SP-02192, "Geronimo de los Reyes vs. Hon. Artemio C. Macalino," evinces the fact that the
agrarian case was decided, not by Judge Baes, but by Judge Macalino, otherwise the respondent
in the Court of Appeals case would have been Judge Baes, not Judge Macalino. Fairness and
prudence on the part of the complainant San Gil were clearly wanting in blaming the respondent
for alleged inefficiency in a case that never reached the threshold of his judicial office.
The charge of extortion deserves no serious consideration. Sec. 1 of Rule 140 of the Rules of
Court requires that charges shall be supported by affidavits of persons who have personal
knowledge of the facts therein alleged, but Geronimo de los Reyes, the alleged victim who should
have first-hand knowledge if indeed the respondent demanded money from him, executed an
affidavit, annex "D" to the complaint, which mentions absolutely nothing about the alleged
extortion.
The third charge. Judge Baes issued an order on September 29, 1973 in CAR Case No. 425
requiring Geronimo de los Reyes to appear in court; the latter failed to appear, thus prompting
Judge Baes to issue an order on October 23, 1973 for de los Reyes to show cause why he should
not be punished for contempt; on November 27, 1973, the respondent ordered the arrest of de
los Reyes. Under these circumstances it is not true that de los Reyes was denied an opportunity
to be heard. The order of arrest was within the judge's authority to issue, pursuant to Section 3 of
Rule 71 of the Rules of Court, and for good reason: de los Reyes was thwarting the court's efforts
to settle the matter of execution of the unsatisfied judgment rendered against him.
For the foregoing reasons, and for failure of the complainant San Gil to file a reply to the
respondent's answer and supplementary answer to the complaint, as required by this Court in its

resolution on February 26, 1974, copy of which was served upon the said complainant on March
6, 1974, the complaint should be dismissed.
ACCORDINGLY, for lack of a prima facie showing, all the charges against the respondent Judge
are dismissed, except the second charge in Administrative Case No. 585-CAR, of which the
respondent is adjudged guilty and for which he is hereby reprimanded.
Makasiar, Esguerra and Muoz Palma, JJ., concur.
Teehankee, J., in the result.
Footnotes
1.

In re Rafael C. Climaco, Adm. Case No. 134-J, Jan. 21, 1974, 55 SCRA 107.

2.
"Section 1. Disqualification of judges. No judge or judicial officer shall sit in any case in
which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in
which he is related to either party within the sixth degree of consanguinity or affinity, or to
counsel within the fourth degree, computed according to the rules of the civil law . . . " (emphasis
supplied)

22. Yaranon v. Judge Rubio 66 SCRA 67 -204

SECOND DIVISION
[A.M. No. 449-MJ. August 7, 1975.]
ATTY. PEDRO H. YARANON, petitioner, vs. MUN. JUDGE ANTONIO RUBIO, respondent.
SYNOPSIS
After the Puzon spouses had sued petitioner in the Court of Agrarian Relation for their
reinstatement as tenants, the latter accused the former with estafa in the Municipal Court,
alleging that as his overseers they failed to account for the agricultural implements which he
gave for their use with obligation to return them. Trial as had wherein, petitioner, being a lawyer,
handled the prosecution himself and presented himself as the only witness for the prosecution.
At the termination of the trial, respondent judge evaluated the evidence adduced, considered
complainant's uncorroborated testimony weak and he acquitted the accused.
For having rendered a decision of acquittal, respondent was administratively charged with (1)
incompetence and/or ignorance of law, and (2) delaying justice. Respondent denied all the
charges against him. However, during the pendency of the case he died.
The Supreme Court dismissed the complaint after disposing of the case on its merit with a view
to clear respondent's name and to enable the heirs to receive to clear respondent's name and to
enable the heirs to receive what is due them under the law.
SYLLABUS

1.
ADMINISTRATIVE COMPLAINT; DISMISSAL; EFFECT OF DEATH OF RESPONDENT. While
death of the respondent may render the administrative charge against him academic which may
be a ground for its dismissal, the Supreme Court may nevertheless make a resolution of
exoneration, if respondent is not guilty, to clear his name and entitle his heir to receive what is
due them under the law.
2.
ID.; JUDGMENT; ERROR OF JUDGMENT NOT GROUND FOR A CHARGE OF RENDERING
UNJUST JUDGMENT. Mere error of judgment cannot serve as basis for a charge of knowingly
rendering an unjust judgment, where there is no proof or even allegation of bad faith, or ill
motive, or improper consideration; and the charge that respondent mislabeled the case of estafa
as one for slander is inconsequential, the mistake being purely clerical.
3.
ID.; DELAY IN RENDERING JUDGMENT; DUE TO HONEST OVERSIGHT. Where the alleged
delay in rendering a decision, is sufficiently justified, the delay having been shown to have been
due to "honest oversight," and considering that the record of performance of respondent who
was assigned to assist another municipal judge is impressive, the Supreme Court will accept
respondent's explanation.
RESOLUTION
BARREDO, J p:
Administrative complaint against respondent Judge Antonio Rubio of the Municipality of Inopacan,
Leyte for alleged (1) incompetence and/or ignorance of the law and (2) delaying justice.
Respondent who is now dead, having died on May 15, 1975, denied all the charges. We could
have dismissed this case for being academic, but We have decided to make this resolution of
exoneration in order to clear his name and to entitle his widow and legal heirs to receive what is
due them under the law.
It appears that complainant, Atty. Pedro H. Yaranon filed a charge of estafa with respondent's
court against the spouses FlordericoPuzon and VitalianaMandacPuzon, his tenants or overseers
who had earlier filed a case against him and his wife for reinstatement as such tenants in Civil
Case No. 1351 of the Court of Agrarian Relations at Ormoc City, which said complainant
eventually lost. Complainant accused said tenants with having failed to account for agricultural
items given to them in trust. After due trial wherein the only witness of complainant was himself,
respondent acquitted the accused. Complainant charges that said decision of acquittal
constitutes knowingly rendering an unjust and/or unfair decision. On the other hand, explaining
the acquittal, respondent commented thus:
"On November 3, 1972 or about 4 months after CAR Case No. 1351 was filed Pedro Yaranon, as
complaining witness caused to be filed with the Municipal Court of Baybay, Leyte, Criminal Case
No. R-8821 for Estafa against the couple FlordericoPuzon (plaintiff in CAR Case no. 1351) and his
wife VitalianaMandacPuzon alleging that the accused while being his overseers in his riceland at
Barrio Santa Cruz, Baybay, Leyte (the same land involved in CAR Case No. 1351) received from
Pedro Yaranon various items of agriculture recited in the complaint in trust and with the
obligation to return when demanded and that when said demand for their return was made the
accused refused and instead appropriated to themselves all of the said articles. (Copy of the
Criminal Complaint is hereto attached as Annex 'D'.)

In the trial, the complaining witness Pedro Yaranon, himself being a lawyer, personally handled
the prosecution. The prosecution presented only one witness, Pedro Yaranon, the complaining
witness, then rested its case with reservation to present rebuttal evidence.
Pedro Yaranon concentrated most of his evidence in proving that the accused were his overseers
rather than his tenants.
He likewise tried to prove that he entrusted with the accused couple the items of agriculture
mentioned in the criminal complaint with a duty to return them to him when demanded; and that
when he demanded from the accused the return of these items the accused, instead, denied
having received the articles mentioned in the complaint. This particular evidence was
contradicted by accused FlordericoPuzon in the witness stand testifying that he never received
any of the said articles. The other portion of his testimony referred to his being a share-tenant in
that land of Pedro Yaranon.
"On cross-examination Pedro Yaranon admitted that he had no written inventory of the articles
mentioned in the complaint. He could not show any receipts and/or invoices to show that he ever
owned the things he mentioned in his complaint.
The Court also took note that while the criminal complaint alleged that the articles therein
mentioned as the object of the estafa case were allegedly entrusted into the custody of the
accused between December 16, 1970 to the middle part of January 1971, he did not mention
these articles among his claims in his counterclaim in the CAR case mentioned above when this
particular claim was supposed to exist already at that particular time. Your respondent gave this
portion of the evidence a good amount of significance. Your respondent also did not lose sight of
the wide disparity between the economic, social and educational status of the parties, the
accused being an underdog, they being old, poor and ignorant couple-farmers who are merely
tenants and/or overseers of the complaining witness who is a politician-lawyer having been a
municipal councilor of Baybay, Leyte and a landowner of means if only to give meaning and
substance to the now famous dictum of President Magsaysay that those who have less in life
should have more in law. In this particular case your respondent did not give them any
undeserved favors but he simply kept close guard that their ignorance and poverty may not be
abused.
All the above circumstances being considered, your respondent felt hesitant in giving credence
to what he honestly considered weak and uncorroborated testimony of the complaining witness
and, therefore acquitted the accused. (Copy of decision inclosed as Annex 'E'.)." (Pages 2-4,
Record.)
We have read the decision in question, and We are satisfied that absent any evidence of illmotive or improper consideration, the same cannot by itself prove the charge laid against
respondent. The decision discusses creditably the evidence of the parties and We see no
indication therein of any untoward factor that could have induced respondent to be unfair to
complainant. The latter may have a different view of his case, but mere error of judgment,
assuming its existence, and We hold that here there was none, cannot serve as basis for a
charge of knowingly rendering an unjust judgment, there being no proof or even allegation of
bad faith.
The charge that respondent had mislabeled the case of estafa as one for slander is
inconsequential, the mistake being purely clerical.

With respect to the alleged delay in rendering his decision in the case in question, We find
sufficiently justified the excuse given by respondent that the delay was due to "honest oversight"
as explained by respondent. The record of his performance when he was assigned to assist the
Municipal Judge of Baybay, Leyte is impressive. We are inclined to accept the following
explanation of respondent:
"On the matter of deciding the case beyond the 90-day period, your respondent respectfully
submits the following comment;
From the months of October to November but for only 2 days a week, your respondent was
assigned by the Honorable Presiding Judge of the Court of First Instance of Baybay, Leyte to
assist the Municipal Judge of Baybay who had a clogged docket. Within 8 or 10 days your
respondent was able to dispose about 70 cases and not one was being appealed. (Monthly report
being attached as Annex 'D'.)
When your respondent was relieved of his temporary assignment in Baybay and was allowed to
return to his court in Inopacan, Criminal Case No. R-9821 was still pending decision. Your
respondent one month after the submission of the case prepared the draft of his decision. But
because this particular case was included in the monthly report in Baybay and was not reflected
in the monthly report of Inopacan, by honest oversight, overlooked to finalize the draft of the
decision until his attention was called by the Municipal Judge of Baybay. Hence the decision was
actually handed beyond the 90-day period." (Pages 4-5, Record.)
WHEREFORE, this case is dismissed and respondent is exonerated.
Makalintal, C.J., Fernando (Chairman), Aquino and Concepcion Jr., JJ., concur.

23. US v. Gacutan 28 Phil 100 or 128? 204

[G.R. No. 9601. September 29, 1914.]

THE UNITED STATES, plaintiff-appellee, vs. EUGENIO GACUTAN, defendant-appellant.
F. Sanchez and B. Pobre, for appellant.
Solicitor-General Corpus, for appellee.
SYLLABUS
1.
BRIBERY OF JUSTICE OF THE PEACE; ARTICLE 382, PENAL CODE. A justice of the peace
who receives money or other valuable thing in consideration of his agreement to decide an
action in favor of the person giving the money or other valuable thing, without regard as to what
the evidence in the case may be, is guilty of bribery as defined by article 382 of the Penal Code.
2.
ID.; ARTICLE 381, PENAL CODE. The facts in this case do not bring it within article 381 of
the Penal Code for the reason that, in order to be within that article, the act which the accused
agrees to commit must be criminal.

3.
ID., ARTICLE 347, PENAL CODE. Nor do the facts bring the case within the provisions of
article 347 of the Penal Code, because it is not known whether the decision made by the justice's
court was a just or an unjust one.
DECISION
MORELAND, J p:
This is an appeal from a judgment of the Court of First Instance of Cagayan convicting the
accused of the crime of bribery, as defined in articles 385 and 389 of the Penal Code, and
sentencing him to one year and one day of imprisonment, to pay a fine of P160, together with
the costs of the proceeding, to suffer subsidiary imprisonment as prescribed by law, and to suffer
temporary special disqualification for a period of six years and one day, and declaring the
carabao forfeited to the Government of the Philippine Islands.
From the evidence in the case as introduced by the prosecution it appears that Domingo Pascua,
about July 20, 1912, filed in appellant's court, he being the justice of the peace in and for the
municipality of Solana in the Province of Cagayan, a complaint against one Elias Pagulayan, for
the theft of a horse; that on or about July 31, 1912, and before said case was decided, Pascua, at
the request of appellant made several weeks before the trial of said case, gave to appellant a
female carabao worth about P80, in consideration of which appellant agreed to decide said
action adversely to Pagulayan; that the carabao was delivered to appellant; and that thereafter,
August 12, 1912, the accused decided the case against Pagulayan, convicting him of larceny and
sentencing him to six months' imprisonment, to pay the costs of the trial, and to indemnify
Pascua in the sum of P50.
On the other hand, the appellant claims to have proved by his witnesses and by Pascua's
declarations that Pascua borrowed P20 from the appellant and promised, in case of his failure to
repay the sum loaned, that he would give the appellant a carabao in settlement thereof, and that
said carabao in question was delivered to appellant in pursuance of said agreement.
Having examined the record with care, we do not hesitate in concluding that from the evidence
there remains no doubt of the guilt of the accused of the crime of bribery.
From the judgment of conviction and sentence this court is unable to say under what section of
the Penal Code the accused was tried or convicted or what was the character of punishment
imposed. We have held in the case of United States vs. Mariano (27 Phil. Rep., 132) that in every
criminal case the court should not only make a statement of the facts upon which the judgment
of conviction was founded, but should also refer to the section of the Penal Code or of the statute
under which the accused was convicted and sentenced and the kind of punishment imposed. In
other words, the sentence should specifically show whether the defendant was sentenced to
presidio correccional or presidio mayor or arresto mayor and in what degree. A sentence for one
year and one day is not a complete sentence according to the practice of the courts. It should be
one year and one day of presidio correccional and should state whether it is the minimum,
medium, or maximum degree thereof.
The Solicitor-General found himself in the difficulty to which we have just referred when he
attempted to sustain the judgment and sentence of the trial court. He says:
"Having in mind the penalty imposed by the lower court upon the defendant and appellant, 'one
year and one day of imprisonment, a fine of P160 or subsidiary imprisonment in case of

insolvency, payment of the costs, and disqualification for a period of six years and one day under
article 385 of the Penal Code, and confiscation of the carabao in accordance with article 389 of
the same code,' it seems that the court convicted the accused under article 382 of the Penal
Code."
This discloses the manner in which the Solicitor-General, as well as this court, has arrived at the
article of the Penal Code on which the conviction is founded.
Counsel for the accused was also uncertain as to the article under which the accused was
convicted. He says:
"The judgment appears to be based on articles 381 or 382 of the Penal Code."
We are of the opinion that the accused should have been convicted under article 382 of the Penal
Code, which provides that:
"Any public officer who shall agree to commit any act of injustice not constituting a crime in
connection with the exercise of the powers of his office, in consideration of any offer or promise
or of any gift or present received by such officer, personally or through the mediation of another,
shall, if the act of injustice be committed, suffer the penalty of presidio correccional in its
medium and minimum degrees and pay a fine of not less than the value of the gift and not more
than three times such value; if the act of injustice shall not have been committed, a penalty
ranging from arresto mayor in its maximum degree to presidio correccional in its minimum
degree and a fine of not less than the value of the gift and not more than double such value shall
be imposed."
It certainly is an act of injustice to convict a person charged with a crime without regard to what
the evidence in the case may be. The accused promised Pascua to convict Pagulayan regardless
of the evidence in the case and apparently carried out his promise. In consideration thereof he
was to receive and did receive a carabao worth P80. It is an act of injustice for a judicial officer to
decide a case pending before him regardless of what the evidence may show. (U. S. vs. Alban, 4
Phil. Rep., 363.)
The act of injustice having been committed, the defendant should have been punished with
presidio correccional in its medium and minimum degrees and sentenced to pay a fine of not less
than the value of the gift and not more than three times its value. The gift itself should also have
been confiscated, under article 389 of the Penal Code.
The case does not fall within article 381 of the Penal Code for the reason that, in order to be
within that article, the act which the accused agrees to commit must be criminal. The act which
he agreed to perform in the case before us was to convict the ,accused. This was not a criminal
act. Nor does the act fall within the provisions of article 347 of the Penal Code, which provides
that "any judge who shall knowingly render an unjust decision against the defendant, etc.," shall
be punished as therein provided. We do not know whether the decision was a just one or an
unjust one. There is nothing in the record to determine that fact. We may say, therefore, without
determining what effect, if any, the decision-of the Supreme Court of the United States in the
case of Alzua vs. Johnson (231 U. S., 106) has upon the provisions of Chapter I of Title VII of the
Penal Code, that there is no evidence upon which we may determine that the judgment to be
rendered was an unjust judgment.

There appearing in the case neither aggravating nor extenuating circumstances, the penalty
should be imposed in the medium degree. The court should have imposed a penalty of one year
eight months and twenty-one days of prision correccional, a fine of P160, confiscation of the
carabao, the costs of the trial, and eight years and one day of temporary special disqualification.
As so amended, the judgment is affirmed, with costs against the appellant.
Arellano, C.J., Torres, Johnson, Carson and Araullo, JJ., concur.

Art. 205. Judgment rendered through negligence.

24. Carreon v. Flores 64 SCRA 238 -205

EN BANC
[A.C. No. 111-MJ. May 30, 1975.]
FELIX CARREON, complainant, vs. MUNICIPAL JUDGE BRUNO R. FLORES of Dinalupihan, Bataan,
respondent.
SYNOPSIS
Respondent was administratively charged for ignorance of the law and incompetence for
convicting complainant of theft on the basis of a groundless criminal charge filed against him by
his landlord-lessor. Investigation was held abeyance pending the appeal of the decision to the
Court of First Instance. A judgment of acquittal was rendered therein and thereafter, an
investigation was conducted and a report thereon was submitted to this Court by the district
judge of the Bataan Court of First Instance. The case was set for hearing to give respondent
opportunity to be present and heard.
The Court ruled that record more than amply substantiates the charge. Complainant as an
agricultural lessee cannot be convicted of theft for lack of the essential elements of the crime.
He had been relieved under a Court of Agrarian Relations decision of all liability for rentals, since
he had already overpaid the same. He cannot therefore be found guilty of stealing cavans of rice
which entirely belonged to him and for which he had no obligation to turn over or to account for.
Respondent judge is ordered dismissed from office.
SYLLABUS
1.
CRIMINAL LAW; THEFT COMMISSION THEREOF IMPOSSIBLE IN INSTANT CASE. Where
accused had been relieved under the Court of Agrarian Relations decision of all liability for
rentals, since he had already delivered (by way of deposit) more palay than he was legally
obligated under the Agricultural Land Reform Code establishing a 25% rental (share) for the
landowner, he could not conceivably be accused, much less found guilty, of stealing the five
cavans which he had no more obligation to turn over or to account for, since they entirely
belonged to him as part of the remaining mass of palay after he had delivered (and deposited)

the rental (share) due to the landowner. The charge of theft against a complainant thus
amounted to an impossible crime he could not steal what entirely belonged to him.
2.
ADMINISTRATIVE CHARGE AGAINST JUDGES; DISMISSAL FROM OFFICE FOR IGNORANCE OF
THE LAW; JURISPRUDENCE. A judge who disregards deliberately or is ignorant of the basic
fundamentals of law and justice is unfit to continue in office. Respondent's separation from the
service is thus called for, in line with the Court's action in Tadiar vs. Caces (Adm. Cases Nos. 89MJ and 1192, Oct. 21, 1974) dismissing respondent judge for dereliction of duty in resolving a
motion to dismiss a criminal case only after 18 months and failing to file the same and serve a
copy thereof on the prosecution and in the Municipal Council of Casiguran, Quezon vs. Morales,
(Adm. Matter No. 559-MJ, Nov. 13, 1974, Adm. Cases Nos. 81-MJ and 599-MJ) dismissing therein
respondent judge for unjustified absences from his station and being "unmindful of the
exigencies of the public service and neglectful of his duties to the prejudice of the residents of
Casiguran.
DECISION
TEEHANKEE, J p:
The Court finds from the established facts and circumstances of the case that respondent
municipal judge is unfit for the office and therefore order his separation from the service.
Respondent judge's rendering a verdict of conviction against complainant for theft of about a
cavan of palay could in no way be factually or legally justified, in that the essential elements of
unlawful taking and that the property stolen belongs to another were lacking and the Court of
Agrarian Relations in an earlier judgment (duly brought to respondent's attention as an exhibit
for defense) as well as in its memorandum had relieved complainant (as agricultural lessee) from
all liability for share rentals (the one cavan of palay) to the alleged offended party (landownerlessor) since complainant had already delivered and deposited more palay for the landowner
than he was legally obligated under their leasehold relation under the Land Reform Code. The
charge of theft against complainant amounted to an impossible crime since he could not steal
what entirely belonged to himself.
Complainant Felix Carreon, a farmer-tenant, filed on November 11, 1968, the present complaint
against respondent Judge Bruno R. Flores of the municipal court of Dinalupihan, Bataan for utter
ignorance of the law and incompetence and manifest partiality in rendering a verdict of
conviction finding complainant guilty of theft of a little more than one (1) cavan of palay valued
at P25.00 and meting out a heavy imprisonment term therefor on the basis of a groundless
criminal complaint filed against him by the landowner-lessor, Mayor Jose Payumo, Jr. of the same
municipality of Dinalupihan through his Acting Chief of Police Jose G. Peaflor for harassment
purposes.
The original complaint dated and filed June 20, 1987 sworn to by the acting chief of police before
respondent judge charged herein complainant with attempted theft allegedly committed as
follows:
"That on or about 1:00 P.M. June 16, 1967 in Barrio Luacan, Dinalupihan, Bataan, Philippines, and
within the jurisdiction of this Honorable Court the said accused did then and there willfully,
unlawfully and feloniously, with intent of gain and without the knowledge and consent of the
owner thereof, reaped and threshed five (5) cavans and two (2) gantas of palay worth P102.00
from the crops existing in the landholding of said owner and concealed the same from the owner
with the intent of taking the same away and appropriate the same for his own benefit to the

damage and prejudice of the owner Mayor Jose C. Payumo, Jr., in the said amount. The accused
failed to execute all the acts necessary to consummate the crime of theft for reasons
independent of his will, that is by timely discovery of his unlawful acts." 1
Three days later on June 23, 1967, the same criminal complaint was amended to one of
consummated theft charging that on June 16, 1967, herein complaint allegedly did "willfully and
feloniously, with intent to gain and without the knowledge and consent of the owner thereof,
thereby take, steal and carry away the eight (8) cavans of Milflor variety belonging to Mayor Jose
C. Payumo, Jr., in the amount of ONE HUNDRED SIXTY (P160.00) PESOS Philippine Currency, to
the damage and prejudice of the said owner." 2

As background facts, it is undisputed that complainant as the share tenant of his landlord Mayor
Jose Payumo, Jr. of Dinalupihan, Bataan over a two-hectare parcel of riceland situated at sitio
Mangindon, barrio Luacan of the said town, gave notice on April 25, 1966 to the latter that
effective the agricultural year 1966-1967 "panag-ulan" (wet) season, the agricultural leasehold
system (in lieu of the share tenancy) would govern their relations, but that as Mayor Payumo
refused to accede thereto notwithstanding the mediation conference held for the purpose at the
office of the Agrarian Counsel, complainant petitioned on December 22, 1966 the Court of
Agrarian Relations at Bataan for a declaration of establishment of the agricultural leasehold
relationship between them and for the fixing of the leasehold rentals under the Land Reform
Code.
After trial and hearing, the Court of Agrarian Relations presided by Judge Milagros German
rendered its decision of November 29, 1967 in favor of complainant, as follows:
1.
Declaring the relationship between complainant Carreon and landowner Mayor Payumo as
one of "leasehold tenancy in lieu of share tenancy, beginning and effective the wet season of the
agricultural year 1966-1967;"
2.
Based on the average crop of the three preceding agricultural years as established by the
trial and pursuant to section 34 of the Land Reform Code "fixing the leasehold rental on the
landholding at 19 cavans and 1 ganta for the 'panag-ulan' (wet season) crop and 18 cavans and
19 gantas for the 'panag-araw' (dry season) crop," both to be paid by complainant to Mayor
Payumo immediately after each harvest;
3.
In view of the fact that complainant had deposited with the Sto. Nio Rice Mill at
Dinalupihan pursuant to court order 25 cavans of BE-3 variety (corresponding to the wet season)
and 15 cavans of Milflor variety (corresponding to the dry season) representing the Mayor's 25%
supposed share in the " panag-ulan" and " panag-araw" harvests respectively, (which the mayor
and his representative had refused to receive from complainant and which refusal, the CAR noted
in its decision, was "not at all explained or justified by the defendant (mayor) during the hearing
of this case" and that the number of cavans thus tendered "is not below the 25% provided for by
law but is even more than the legal leasehold rental determined by this court"), "declaring the
plaintiff (complainant) relieved of his responsibility of the payment of the share or rental due the
defendant (mayor)" for both seasons of the agricultural year 1966-1967;
4.
and

Ordering the defendant (mayor) to take delivery of the said 40 cavanes of deposited palay;

5.
Ordering the defendant (mayor) to pay complainant P30.00 as reasonable litigation
expenses.
This CAR decision of November 29, 1967 (which does not appear to have been appealed by the
landowner-complainant Mayor Payumo nor has it been questioned by him either in the criminal
case or in the present proceedings) was duly presented in evidence by herein complainant at the
trial of the criminal case and brought squarely to respondent judge's attention. This CAR decision
completely relieved the herein complainant-accused of all responsibility to pay the leasehold
rental for both seasons of the 1966-1967 agricultural year, since he had in fact overpaid the
same.
Nevertheless, complainant stood charged with theft before respondent judge's court for having
allegedly taken away 5 cavans from the harvest of the land tenanted and leased by him from
Mayor Payumo, all of which 5 cavans belonged solely to him, since as found by the CAR he had
already fully paid the leasehold rentals to the Mayor.
Worse, despite the fact that said CAR decision was handed down eight and a half months before
respondent judge rendered his questioned verdict of August 12, 1968, he considered the same
"without any relevance or connection whatsoever with the crime of theft before his court (to
quote the investigating judge's report) 3 and pronounced complainant guilty of theft of about a
cavan of palay and imposed on him an imprisonment term of four months and one day to six
months of arresto mayor.
Hence, the present administrative complaint filed on November 11, 1968 with the Secretary of
Justice which was endorsed on the same date by then Undersecretary of Justice, now Associate
Justice of this Court, Felix Q. Antonio to the district judge of the Bataan court of first instance for
investigation, report and recommendation.
Respondent's answer of December 20, 1968 sought to justify his ruling that a co-owner may be
held liable for theft committed against a co-owner on the basis of an alleged "doctrine" of this
Court in an unspecified case in 1956 and to disparage complainant expressing his "suspicion"
that complainant, "his accuser is mentally sick, considering that he (Felix Carreon) has lodged
many complaints even against lawyers in the office of the Agrarian Counsel to whom (he) goes
often for legal aid or consultation" and assailing the charges against him as "malicious and
preposterous and apparently intended to harass or malign (him)."
The investigation of the complaint was however held in abeyance by agreement of the parties
until after complainant's appeal from his conviction for theft by respondent was heard and
decided by the court of first instance which was presided also by the investigating judge, Hon.
Abraham P. Vera. Judge Vera handed down on April 26, 1972 his decision setting aside
respondent's judgment of conviction and acquitting complainant of the charge of theft. Although
the judge used the standard phrase of the "prosecution (having) failed to establish the guilt of
the accused . . . beyond reasonable doubt," it is evident from his decision that complainant was
fully entitled to an acquittal on the basis of the facts above-recited, with the judge observing that
because of the landowner's refusal to accept his share (rental) "the accused had to bring the
matter to the attention of the CAR and the share pertaining to Payumo was deposited by the
implementing officer of said court with the Sto. Nio Ricemill" (40 cavanes of palay which
exceeded that which was due the lessor, by virtue whereof the CAR declared complainant
relieved of all liability for rentals), that accused (complainant) "could not therefore steal what
belongs to him," and that "it is clear therefore that the accused did not commit theft of one (1)
cavan of palay corresponding to Payumo's share."

Thereafter, the investigating judge proceeded with the investigation and submitted his report of
October 22, 1973 with the testimonial and documentary evidence submitted by the parties. In
view of the seriousness of the charges, the Court set the case for hearing on April 4, 1974 at
which respondent was personally present and heard.
Passing mention need be made only of the charge that respondent judge permitted the
complaining witness in the theft case, Mayor Payumo, during the trial and in open court to shout
grave threats of killing and shooting the herein complainant if he insisted on staying on the land,
since the investigating judge found the same to be unsubstantiated and chose to disbelieve the
complainant's witness as a "biased witness" and this charge is not essential for the proper
disposition of the case in view of the other findings and facts of record.
The record more than amply substantiates the main charge against respondent of ignorance of
the law and incompetence, if not manifest partiality, in having rendered his verdict dated August
12, 1968 finding complainant Felix Carreon guilty of the crime of theft of one (1) cavan of palay
(which was duly reversed on appeal by the court of first instance) contrary to and in disregard of
the indisputable facts and the applicable laws which he arbitrarily ignored notwithstanding their
having been properly brought to his attention.
The investigating judge aptly observed in his report that respondent's "decision has no findings
of facts as found by the court," but simply stated the bare conclusion that the evidence
established the accused's guilt beyond reasonable doubt. 4
But from the undisputed facts and from the CAR decision of November 29, 1967 establishing the
leasehold relationship between the parties and relieving complainant from all liability for both
seasons of the 1966-1967 agricultural year since he had already deposited for the landownerlessor 40 cavanes of palay which were even more than the amount due from him for rental as
determined by the CAR (37 cavanes and 20 gantas) which was duly presented in evidence by
complainant (as accused) as Exhibit 1, all of which were duly stressed in complainant's
memorandum, as filed with respondent judge, 5 the conviction for theft could not possibly be
justified as indeed respondent could not justify the same at the hearing.
Complainant as an agricultural lessee could not be legally convicted for theft because the
essential elements of unlawful taking and that the property belongs to another were lacking.
Even assuming that complainant had intended to steal the little more than one cavan of the
remaining five cavanes, he had been relieved under the CAR decision of all liability for rentals,
since he had already delivered (by way of deposit) more palay than he was legally obligated
under the Agricultural Land Reform Code establishing a 25% rental (share) for the landowner. He
could not conceivably be accused, much less found guilty, of stealing the five cavanes which he
had no more obligation to turn over or to account for, since they entirely belonged to him as part
of the remaining mass of palay after he had delivered (and deposited) the rental (share) due to
the landowner. The charge of theft against complainant thus amounted to an impossible crime
since he could not steal what entirely belonged to him.
This was duly emphasized in the memorandum filed for the complainant (as accused) with
respondent judge, thus: "The relation between the complainant and defendant is one of the
leasehold tenancy, and in such a relation, the tenant's failure to pay the rental is not and cannot,
be ground to send him to jail for theft especially in this case where defendant was relieved of
any responsibility for the rental or share of the complainant with respect for that 'Panag-araw'
crop of 1967. Even admitting, therefore, for the sake of argument that for the 'Panag-araw' crop

of 1967 your accused didn't pay the rental to the owner, he may be ejected from the land (Sec.
36 of R.A. 3844) but he cannot, because of such failure, be sent to jail for theft." 6
Indeed, it is difficult to comprehend how respondent judge under the circumstances of record
could have rendered a guilty verdict. Either he did not comprehend the facts and the applicable
laws notwithstanding their having been squarely placed before him at the trial and in
complainant's memorandum which would make him guilty of utter ignorance of the law and
incompetence or although knowing the law, of deliberately having refrained from applying the
same notwithstanding that he was in doubt as to complainant's guilt which would substantiate
complainant's charge against him of manifest partiality in favor of complainant's accuser, the
town mayor, if not gross betrayal of his oath of office to render justice to every man.
Respondent judge's incomprehensible judgment of conviction is further aggravated by the fact
that as early as January 9, 1967, (over a year and a half before his guilty verdict of August 12,
1968) the Department of Justice had issued its Circular No. 7, on harassment cases brought
against tenants, to all municipal judges, advising them that "(I)n connection with the
implementation of the Land Reform Code, it has been brought to the attention of this
Department that tenants applying for leasehold tenancy under the provisions of the Code are
being discouraged by the institution of criminal cases against them, resulting in their arrest and
confinement in jail," and that "(E)xtra care should therefore be exercised before issuing warrants
of arrest in criminal cases filed against tenants applying or desirous of applying for leasehold
tenancy in order that the courts may not be utilized as instruments of oppression. The evidence
of the prosecution should be closely scrutinized so as to make sure that the criminal complaint is
genuine and not merely fabricated for purposes of harassment or detention of the accused
tenant."
At the investigation as well as at the hearing, respondent denied, contrary to the facts of record,
that the CAR decision relieving complainant of all liability for rentals for both seasons of the year
involved because he had already overpaid the same was ever presented in evidence, although
he admitted that it was annexed to complainant's memorandum. He further sought at the
investigation to negate the charge of manifest partiality by adducing evidence (no longer
seeking vainly to legally justify his guilty verdict against complainant as per his answer) that he
advised complainant to appeal his verdict and assisted complainant in perfecting an appeal of
his own decision to the court of first instance, and testified that "I personally advised him
(complainant-accused) to appeal the case and told him that if it properly handled he will be
acquitted." 7
These actions and claims of respondent merely stress rather than mitigate his guilt as to the
charges, and strip him of any claim to having rendered an erroneous ruling or decision in good
faith as would excuse him from administrative liability. 8 Assuming that the CAR decision had not
been presented in evidence but merely annexed to complainant's memorandum (as falsely
claimed by him), still this would have amply put him on sufficient notice as to complainant's
innocence of the theft charge, and in no way explains his rendering a guilty verdict. It in no way
bolsters the justification by inference that he makes (but does not dare assert) that he might
have handed a different verdict of not guilty if the CAR decision had been presented in evidence
for if this were so, then he should have handed down an acquittal verdict, since the CAR
decision per his own admission was indeed submitted to him with complainant's memorandum
and in fact (contrary to his denial) was submitted to him at the trial as Exhibit 1 of the defense.

Respondent's advise to the complainant he had convicted to appeal the conviction with the
assurance "that if properly handled he (complainant) will be acquitted" speaks for itself and
shows that he himself was in doubt as to his own verdict which he was sure would be reversed
on appeal "if properly handled" and had failed to apply the elementary rule that "In a criminal
case the defendant is entitled to an acquittal, unless his guilt is shown beyond a reasonable
doubt." 9
A judge who disregards deliberately or is ignorant of the basic fundamentals of law and justice is
unfit to continue in office. Respondent's separation from the service is thus called for, in line with
the Court's action in Tadiar vs. Caces 10 (dismissing therein respondent judge for dereliction of
duty in resolving a motion to dismiss a criminal case only after 18 months and failing to file the
same and serve a copy thereof on the prosecution) and in Municipal Council of Casiguran,
Quezon vs. Morales 11 (dismissing therein respondent judge for unjustified absences from his
station and being "unmindful of the exigencies of the public service and neglectful of his duties
to the prejudice of the residents of Casiguran").
ACCORDINGLY, respondent is hereby dismissed from the office of municipal judge of Dinalupihan,
Bataan. SO ORDERED.
Makalintal, C.J., Fernando, Barredo, Makasiar, Antonio, Esguerra, Muoz Palma, Aquino,
Concepcion, Jr. and Martin, JJ., concur.
Castro, J., in the result.
Footnotes
1.

Rollo, p. 76.

2.

Judge A. Vera's report, p. 11.

3.

Report of CFI Judge Abraham P. Vera, p. 13.

4.
Such decisions of inferior courts which did not contain findings of fact were formerly
permissible under Rule 5, section 12, before the inferior courts were converted into courts of
record.
The whole text of respondent's decision reads:
"The evidence presented before this Court establishes the guilt of the accused Felix
Carreon beyond reasonable doubt.
"However, it also revealed that only five (5) cavans (Milflor variety) are involved
instead of eight (8) cavans alleged in the complaint. At the rate of P20.00 per cavan, the value of
five (5) cavans is P100.00.
"Considering that only 25% of the said amount belongs to the offended party and
the rest belongs to the accused, the amount of the things stolen must be P25.00 only.
"WHEREFORE, the accused Felix Carreon is hereby pronounced guilty beyond
reasonable doubt of the crime of theft of palay valued at P25.00 punishable under Article 309,
paragraph 5 of the Revised Penal Code, and is hereby sentenced to suffer imprisonment from
four (4) months and one (1) day to six (6) months of arresto mayor.

"He is likewise sentenced to indemnify the offended party the amount of P25.00 or
to suffer subsidiary imprisonment in case of insolvency which in no case shall exceed one third
(1/3) of the principal penalty, and to pay the cost of this suit."
It may be noted parenthetically that the indeterminate sentence, instead of a fixed
term, imposed by respondent is itself wrong and reflects on his competence (prescinding from
the fact that the conviction is totally unjustifiable) since the Indeterminate Sentence Law does
not apply where the maximum term does not exceed one year. (Act No. 4013, sec. 2)
5.

Record, pp. 77-87.

6.
Record, p. 84; see U.S. vs. Reyes, 6 Phil. 441 (1906), ruling that defendant's unlawful
disposition of share of rice belonging to his partner or joint owner was undoubtedly a violation of
their contract but not an act constituting the crime of theft, there being no unlawful taking.
7.

T.s.n. Record, p. 205; see also t.s.n. at pp. 185-186, Record; emphasis supplied.

8.

Dizon vs. Borja, 37 SCRA 46.

9.

Rule 133, sec. 2.

10.

Adm. Cases Nos. 89-MJ and 1192, 60 SCRA 215, Oct. 21, 1974, per Aquino, J.

11.

61 SCRA 14 (Nov. 13, 1974), per Esguerra, J., (Adm. Cases No. 81-MJ and 559-MJ).

Art. 206. Unjust interlocutory order.

Art. 207. Malicious delay in the administration of justice.
25. Salcedo v. Alfeche 64 SCRA 552 -207

SECOND DIVISION
[A.M. No. 267-MJ. June 30, 1975.]
RAFAEL SALCEDO, complainant, vs. MUNICIPAL JUDGE DAVID ALFECHE, JR. of San Joaquin, Iloilo,
respondent.
SYNOPSIS
Respondent was administratively accused of serious misconduct for having accosted and
threatened to shoot complainant and of malicious delay in the administration of justice due to his
absence from his official station as a consequence of which complainant failed to post his cash
bond resulting in his detention overnight. Respondent denied the charges. He claimed that it was
complainant who assaulted him with a knife when he tried to arrest complainant while in the
actual commission of a crime; and with respect to his absence from office, he claimed that he
was on vacation leave.

The inquest judge, after having evaluated the records found the evidence against respondent
insufficient, recommended his exoneration. Complaint dismissed.
SYLLABUS
1.
ADMINISTRATIVE COMPLAINT; DISMISSAL; FAILURE TO SUBSTANTIATE THE CHARGES,
GROUND FOR DISMISSAL; CASE AT BAR. Where the records show that the evidence adduced
by complainant is insufficient to overcome the respondent's claim that his actuation was in
consonance with his civic duty to try to maintain peace in the locality even if he stands in danger
of being attacked by the malefactors the complaint must be dismissed.
2.
ID.; ID.; CHARGES OF MALICIOUS DELAY IN ADMINISTRATION OF JUSTICE NOT
SUBSTANTIATED. The charge of malicious delay in the administration of justice due to
respondent's alleged absence from his official station as a consequence of which complainant
was detained overnight because he could not post his bond was dismissed, it appearing that
respondent was on official leave and that upon his return and learning that complainant was
detained and ready to put up his bail, he (respondent) immediately ordered complainant's
release.
RESOLUTION
FERNANDO, J p:
On the face of an administrative complaint filed by one Rafael Salcedo, it would appear that if
substantiated, there would be reason to hold respondent Municipal Judge David Alfeche, Jr. of San
Joaquin, Iloilo, liable for serious misconduct. He was accused of having "accosted and threatened
to shoot" complainant in the morning of February 21, 1971. The second misdeed attributed to
him was malicious delay in the administration of justice due to his absence from his official
position on March 5, 1971, as a consequence of which a cash bond posted by complainant, then
accused in a pending criminal case, could not be accepted, with the result that he was detained
overnight.
In the answer of respondent, there was a denial of the facts as alleged in the complaint, his
assertion being that it was he who was assaulted by complainant with a knife when he tried to
arrest him while in the actual commission of the crime, a complaint for direct assault having
been filed thereafter against complainant. And there was no malicious delay on his part, as his
absence on March 5, 1971 was due to his having taken a vacation leave and he did not have to
report until March 6, 1971.
The matter was referred to the then Executive Judge Emigdio V. Nietes, who in his report and
recommendation stated the following: "As has been explained by the respondent, all he did in
connection with the charge on February 21, 1971 was apprehend the complainant because he
chased one of those who stabbed Jose Talanquines. If a public officer like the municipal judge
who happens to be a resident of Barrio-Crossing Dapuyan sees some turmoil in said barrio and
had to run the risk of being attacked by malefactors because he had to maintain peace in his
barrio, instead of condemnation, he deserves to be commended for such demonstration of public
spiritedness . . . ; it is laudable, if he had thus to cut his sleep in order to intervene so that there
might be peace on the eve of the barrio fiesta. Was there malicious delay, if the complainant
surrendered, presented himself instead of being apprehended if on that date he could not file his
bond due to the absence of the municipal judge who had noted in his daily time record his

absence from his station? Could the respondent be blamed for non-release of the complainant
who was then accused in
Criminal Case No. 733 since respondent was not in his office at the time and he had officially
recorded his absence? The respondent did not know. He had no knowledge if the complainant
had already been arrested or he voluntarily surrendered. In the absence of the municipal judge, it
is a provision in the rules of Court that the accused may put up his bond before the municipal
mayor who is authorized to order his release in case of such bond, reporting to the municipal
judge on his return to the office the release made. It is clear though that immediately after he
took cognizance of the fact that the accused was apprehended and ready to put up his bail, he
immediately ordered his release on March 6 when he reported to the office the next day. In other
words, after he had knowledge of the apprehension of the accused or his being detained, on the
first opportunity he immediately released him. Can, by this fact or the act of the respondent in
releasing immediately the accused upon taking jurisdiction over the case and his person when he
was brought on March 6 with his bond, he be considered delaying the administration of justice?
The answer is No." 1 After adding that there was no motive why respondent Judge could be
accused of having wantonly prejudiced the right of the complainant, he recommended the
dismissal of the charges. With such recommendation, the Judicial Consultant is in agreement, the
records of the case having been evaluated by him. As he pointed out: "Finding that the evidence
really failed to substantiate the charges, I respectfully endorse the above-stated
recommendation for respondent's exoneration, there being no basis to disturb the same."
WHEREFORE, the administrative complaint for serious misconduct and malicious delay in the
administration of justice is dismissed and respondent Judge David Alfeche, Jr. is hereby
exonerated.
Barredo, Antonio, Aquino and Concepcion, Jr., JJ., concur.
Footnotes
1.

Report and Recommendation, 6-7.

Art. 208. Prosecution of offenses; negligence and tolerance.

Art. 209. Betrayal of trust by an attorney or solicitor. Revelation of secrets.
26. PaguIrigan v. Clavano 61 SCRA 401 208

SECOND DIVISION
[A.M. No. 537-CJ. December 19, 1974.]
FRANCISCO PAGUIRIGAN and ADOLFO PAGUIRIGAN, complainants, vs. CITY JUDGE NICHOLAS
CLAVANO OF OROQUIETA CITY, respondent.
RESOLUTION
ANTONIO, J p:

Respondent Nicholas Clavano, City Judge of Oroquieta City, is charged by Messrs. Francisco and
Adolfo, both surnamed Paguirigan, with abuse of authority and/or conduct unbecoming of a
judge. It is asserted that on the afternoon of August 28, 1972, after overtaking a motorcab driven
by Adolfo Paguirigan, respondent shouted at the driver to surrender his license and pointed a
revolver at him, and after having confiscated said license, failed to return it to the driver as it
was later on lost by respondent. After receiving the comment of the respondent on the aforesaid
charges, the matter was referred to the Executive Judge of the Court of First Instance of Misamis
Occidental for investigation, report and recommendation.
On July 13, 1974, Hon. Melecio A. Genato, Executive Judge of the Court of First Instance of
Misamis Occidental, Branch I, Oroquieta City, transmitted his report and recommendation, as
follows:
"In the hearing of June 10, 1974, the complainants orally petitioned this Court that in view of the
fact that they have no lawyer, the case be called the next day, to which the respondent did not
object. In the hearing of June 11, 1974, complainants appeared but again without counsel.
Respondent's counsels submitted to this Court the affidavits of Francisco Paguirigan, Exhibit '1',
and Adolfo Paguirigan, Exhibit '2'. In said affidavits, complainants stated that they have lost
interest in the further prosecution of this case because their witnesses have turned hostile to
them and that their case is without any merit both in law and in fact as they discovered the truth
of the incident (Par. 4, Exhibit '1' and Pars. 3 and 4, Exhibit '2'). Not satisfied of the contents of
the said affidavits, this Court interrogated the complainants Francisco and Adolfo Paguirigan by
placing them on the witness stand. While testifying on the witness stand, this Court asked
several questions to the said complainants as shown in the transcript of the stenotype notes
from pages 4 to 6 (Transcript of Stenotype notes of the hearing on June 11, 1974 by
Stenographer Rodolfo N. Napigkit). As can be deduced from the testimony of both complainants
Francisco and Adolfo Paguirigan, their affidavits of desistance, Exhibits '1' and '2', were executed
by each of them voluntarily and freely, well knowing that by its execution the case they had filed
against Judge Clavano would somehow be dismissed. Be that as it may, respondent City Judge
Nicholas Clavano petitioned this Court that he be allowed to present witnesses to refute the
charges alleged in the complaint and likewise to explain his side on the case which this Court
granted. In the hearing of June 22, 1974, respondent City Judge Clavano appeared assisted by his
counsels and presented five (5) witnesses including himself.
"Testifying on his behalf, Judge Nicholas Clavano declared before this Court that as a cooperation
and in compliance with a request made by City Mayor Ciriaco Pastrano of the City of Oroquieta,
that he, the City Judge, would help the city officials in their drive to curb traffic violations and
infractions of City ordinances by pedicab drivers doing business in the City by advising and
lecturing to the said pedicab drivers of their respective rights and obligations under the law for
the protection of the life and limb of the riding public, in order to minimize, if not eradicate,
crimes relating to rampant violations of City ordinances by pedicab drivers. Respondent declared
further that he had in fact lectured and advised several pedicab drivers of their duties as such
pertaining to traffic rules and the proper observance of City ordinances concerning the protection
of the riding public in motorcabs, and the case of herein complainants is one of them. The City
Judge vehemently denied that he levelled a revolver to Adolfo Paguirigan because at the time of
the alleged incident he did not have any revolver but only a licensed pistol. The non-appearance
of witness Mrs. Paulina Abuton for the complainants is very understandable because in the
certification issued by the Public Schools Supervisor for the District where Mrs. Paulina Abuton is
teaching, it appears that she was present in her station on that date (Exhibit "2-A"). It would,
therefore, be highly impossible for her to be riding the pedicab driven by complainant Adolfo

Paguirigan going and be in the place of the incident in question without falsifying her daily time
record and if she does testify, she would be testifying against the truth stated in her daily time
record which is Civil Service Form No. 48, Exhibit "2-B".
"The City Mayor testified before this Court that he actually requested the two city judges of the
City, Hon. Malcolm S. Enerio and Hon. Nicholas Clavano, to help him in his campaign against
violation of traffic rules and regulations by pedicab drivers and requested the judges to advise
and lecture pedicab drivers of their respective duties and responsibilities in order to protect the
life and limb of the riding public.
"Mr. Florencio Calugcug, the Officer-in-Charge of the Local Transportation office, also testified that
City Judge Nicholas Clavano, respondent in this case, came to his office to consult whether he
can possibly comply and cooperate with the said request of the Honorable City Mayor and that
the former advised that he, the City Judge, could do it lawfully as a cooperation in the campaign
against violators of traffic rules and regulations.
"The other witnesses are pedicab drivers who testified that they were among those who were
advised and lectured by respondent Judge on their respective duties and obligations as pedicab
drivers so that they could not violate traffic rules and regulations for the protection of the riding
public.
"In view of the desistance of complainants, the charges contained in the letter-complaint of
complainants Francisco Paguirigan and Adolfo Paguirigan were not sufficiently substantiated by
evidence. However, City Judge Nicholas Clavano, being a lawyer, should have known that he was
without power or authority to confiscate the driver's license of complainant Adolfo Paguirigan; if
he was complying with the request of the City Mayor, it would have been proper on his part to
politely advise said pedicab driver not to violate the traffic rules of the City of Oroquieta instead
of confiscating the driver's license of said pedicab driver. By confiscating said pedicab driver's
license without issuing any TVR and losing the same in his possession, Judge Clavano was
arrogating unto himself power not vested upon a City Judge bordering, as it is, on abuse of
authority and conduct unbecoming of a Judge. The proper action, if Judge Clavano was really
serious in helping the city government in eradicating the crimes arising from traffic violations,
was to call a seminar or conference of all pedicab drivers of the City but not to confiscate
licenses.
"Under these circumstances, it is most respectfully recommended that corresponding, yet
lenient, appropriate action he handed down by the Honorable Supreme Court."
The Judicial Consultant recommends that respondent be severely reprimanded, considering that
respondent was "without authority to confiscate the driver's license of the complainant, just to
lose it while in his possession . . ."
Complainants having failed to substantiate their charges in view of their desistance, what
remains in the record are the admissions of respondent. According to respondent, in compliance
with the request of the City Mayor that he assist the city officials in their campaign to curb traffic
violations and infractions of city ordinances, he had counseled and given lectures to motorcab
drivers in the City of Oroquieta on traffic regulations and on their duty to protect the life and limb
of the riding public. He also admits that on August 28, 1972, upon seeing motorcab driver Adolfo
Paguirigan overloading and overspeeding, he gave chase and after overtaking him, told him to
stop, after which the respondent judge warned said driver of the latter's traffic violations. As a
deterrent, the respondent judge confiscated the driver's license with the advice that the latter

could get it the following morning in the former's office after the erring driver shall have received
the corresponding admonition. Due to the driver's failure to claim his license the next day, the
respondent judge subsequently misplaced the aforesaid license and was not able to return the
same.
While respondent might have been motivated by a spirit of civicism in cooperating with the city
authorities in the enforcement of traffic laws, it is obvious that the investigation of violations of
traffic rules and regulations, the arrest of errant motor vehicle drivers and the confiscation of
their licenses are essentially police functions which are specifically vested by law upon law
enforcement officers of the government. Respondent as Judge of the City Court will necessarily
hear and decide all cases filed in his court regarding such violations and infractions of the Motor
Vehicle Law or traffic regulations by the law enforcement officers. It is patent, therefore, that
respondent should not have taken upon himself the responsibility of confiscating the license of
the motorcab driver but he should have referred the matter to the police. We deem it relevant to
emphasize that the official conduct of a judge should be free from impropriety or any appearance
thereof. His personal behavior in the performance of his official duties and in his everyday life
should be beyond reproach. By confiscating the complainant's driver's license without issuing
any Traffic Violation Report (TVR) and losing the same while in his possession, respondent judge
has acted in a manner unbefitting his high judicial office.
Accordingly, respondent City Judge Nicholas Clavano of Oroquieta City is hereby reprimanded,
with the warning that similar acts of impropriety may be dealt with more severely.
Fernando (Chairman), Barredo, Fernandez and Aquino, JJ., concur.

27. Bagatua v. Lombos 104 Phil 392 -208

EN BANC
[G.R. No. L-12247. August 26, 1958.]
BEATRIZ RAMOS VDA. BAGATUA, ET AL., petitioners-appellants, vs. PEDRO A. REVILLA and
LEONIDAS S. LOMBOS, as City Attorney and Assistant City Attorney, respectively, of Quezon City,
respondents-appellees.
Segundo C. Mastrili for appellants.
Pedro A. Revilla and Leonidas S. Lombos for and in their own behalf.
SYLLABUS
1.
CRIMINAL PROCEDURE; DUTY OF FISCAL TO PROSECUTE INVOLVES DISCRETION; CANNOT
BE CONTROLLED BY MANDAMUS. While it is the duty of the fiscal or the City Attorney, as
prosecuting officer, to prosecute persons who, according to the evidence received from the
complainant, are shown to be guilty of a crime, said officer is likewise bound by his oath of office
to protect innocent persons from groundless, false or malicious prosecution. The prosecuting
officer would be committing a serious dereliction of duty if he files the information based upon a

complaint, where he is convinced that the sufficiency and strength of the evidence would warrant
the filing of the action in court against the accused. This duty of the prosecuting officer involves
discretion, hence, it cannot be controlled by mandamus unless there has been a grave abuse
thereof which is not shown in the case at bar.
2.
ID.; ID.; REMEDY OF OFFENDED PARTY WHERE FISCAL REFUSES TO PROSECUTE. Where
the alleged offended party believes that the prosecuting officer maliciously refrained from
instituting actions for the punishment of violators of law, the remedy of said party is to file with
the proper authorities or court of criminal or administrative charges against said officer.
DECISION
FELIX, J p:
Lot No. 569 of the Piedad Estate, formerly falling within the jurisdiction of Caloocan, Rizal, now of
Quezon City, with an area of 43,371 square meters more or less, was originally registered in the
name of Alipio Bagatua and covered by Transfer Certificate of Title No. 21411. Upon his demise,
his widow, Beatriz Ramos, and their children, Rodrigo, Paz, Lydia, and Basilia, all of legal age and
surnamed Bagatua, executed a document styled "Settlement of Estate and Donation of Real
Property" dated June 2, 1953, wherein Beatriz Ramos donated to her said 4 children the
aforementioned property and which donation was accepted in the same instrument. As such
common owners the Bagatuas were able to secure a certificate of title in their names (T.C.T. No.
21995). Thereafter, as they decided to subdivide the lot among themselves, they engaged the
services of Burgos L. Pangilinan, a real estate broker.
It appears that on June 29, 1954, the Bagatuas, together with their spouses and their mother
Beatriz Ramos, executed a public instrument which was duly registered, wherein they sold and
conveyed ownership unto Burgos Pangilinan of a part of the lot with an area of 3,358 square
meters in consideration of the sum of P6,000. On June 21, 1956, however, Rodrigo Bagatua,
acting for himself and on behalf of his sisters, accused Burgos L. Pangilinan of estafa before the
City Attorney of Quezon City for having allegedly induced them to sign papers supposedly
necessary for subdivision of their lot, but one of which, they charged that they were prejudiced in
the amount of P13,432.
Upon receipt of said complaint, the Assistant City Attorney of Quezon City, acting for the City
Attorney, conducted a preliminary investigation which lasted for several days, during which
occasions both parties were duly represented by counsel. Testimonial as well as documentary
evidence was represented and after the parties had filed their respective memoranda, the
Assistant City Attorney, in a memorandum addressed to the City Attorney, recommended the
dismissal of the complaint for lack of merit. Accordingly, the complaint was dismissed. The
complainants thus filed a petition for mandamus with the Court of First Instance of Quezon City
against the City Attorney and the Assistant City Attorney (Civil Case No. Q-2270) seeking to
compel the aforesaid officials to file the corresponding information against Burgos Pangilinan for
estafa under Article 315, subsection 3, paragraph (a) of the Revised Penal Code, contending that
the respondents, in dismissing the complaint, committed a grave abuse of discretion.
To this petition, respondents filed a motion to dismiss for failure to state a cause of action, on the
theory that as the duties of a fiscal are not ministerial but involve discretion, it cannot be
controlled by mandamus unless there had been a grave abuse thereof. It is averred that the
respondent Assistant City Attorney, in recommending the dismissal of the complaint and the City
Attorney in dismissing the same did not commit any grave abuse of discretion.

In its order of February 23, 1957, the Court of First Instance of Quezon City sustained the motion
to dismiss on the ground that there was no clear indication that in the performance of their
duties, respondents abused their discretion. From this order, petitioners appealed to this Court.
Section 28 (h) of Republic Act No. 537, known as the Revised Charter of Quezon City,
prescribes that:
"(h) He (the City Attorney) shall cause to be investigated all charges of crimes, misdemeanors,
and violations of ordinances and the necessary information or complaint prepared or made
against the persons accused. He or any of his Assistants may conduct such investigations by
taking oral evidence of reputable witnesses, and for this purpose may issue subpoena, summon
witness to appear and testify under oath before him, . . . ."
The Rules of Court also specifically provide that all criminal actions, either commenced by
complaint or information, shall be prosecuted under the direction and control of the fiscal
(Section 4, Rule 106, Rules of Court), and from these legal mandates springs the principle that
where the fiscal, after conducting a preliminary investigation is convinced that the evidence is
insufficient to establish, at least prima facie, the guilt of the accused, he has the perfect
authority to dismiss the same (See Gonzalez vs. Court of First Instance of Bulacan, 63 Phil., 846;
People vs. Orias, 65 Phil., 744; People vs. Natoza, 100 Phil., 533; 53 Off. Gaz. [22] 8099. Under
the aforesaid ruling, the fiscal or the city attorney, as prosecuting officer, is under no compulsion
to file the corresponding information based upon a complaint, where he is not convinced that the
evidence gathered or presented would warrant the filing of an action in court. It is true that this
authority involves the exercise of discretion to a wide latitude and while it may invite the
commission of abuses, yet it must also be recognized that necessity demands that prosecuting
officers should be given such authority if we are to avoid the courts from being flooded with
cases of doubtful merit or to unduly compel the fiscals to work against their convictions. It may
be stated in this connection, that although prosecuting officers under the power vested upon
them by law not only have the authority but also the duty of prosecuting persons who, according
to the evidence received from the complainant, are shown to be guilty of a crime committed
within the jurisdiction of their offices, they are likewise bound by their oath of office to protect
innocent persons who, are shown to be guilty of a crime committed within the jurisdiction of their
offices, they are likewise bound by their oath of office to protect innocent persons from
groundless, false or malicious prosecution. And since as lawyers, they have sworn not to aid or
consent to any unlawful suit, the respondents would certainly commit a serious dereliction of
duty by prosecuting any person whom they do not believe to have committed the offense he was
charged with by an alleged offended party, or when the evidence available is not, in their
opinion, sufficient to warrant the conviction of the accused. Of course, the power of the City
Attorney or prosecuting fiscal in connection with the filing and prosecution of criminal charges in
court is not altogether absolute; but the remedy is not that of mandamus but the filing with the
proper authorities or court of criminal or administrative charges if the alleged offended parties
believe that the former maliciously refrained from instituting actions for the punishment of
violators of the law (Article 208, Revised Penal Code).
In the case at bar, appellants in charging that there was a grave abuse of discretion involved
herein bring out the fact that the preliminary investigation elicited no improper motive on the
part of said complainants (appellants) to accuse Pangilinan of the offense charged, and thus
considered the dismissal of the complaint as erroneous. The absence of motive alone is not
sufficient to presume the existence of a prima facie case. The circumstances and evidence on
record must be taken together before such a conclusion may be arrived at. We have gone over

the report or memorandum of the Assistant City Attorney and from the facts established by the
preliminary investigation conducted by him as well as the reasons given for the dismissal of the
complaint, we could glean nothing that would reveal or tend to reveal any semblance of abuse
perpetrated by respondents and appellees.
A fiscal's failure to give credence or weight to the testimony of witness or otherwise appreciate
the evidence presented in a preliminary investigation, unless patently capricious or arbitrary,
cannot be taken as an abuse of discretion, for he must have formed his impression after
observing and evaluating the demeanor and conduct of a witness testifying before him.
Wherefore, the order appealed from being in consonance with law is hereby affirmed, with costs
against appellants. It is so ordered.
Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L.
and Endencia, JJ., concur.