SECOND DIVISION

[G.R. No. 158064. June 30, 2005]

PEOPLE OF THE PHILIPPINES, petitioner, vs. HU RUEY CHUN a.k.a.

RICHARD HU, respondent.

DECISION
CALLEJO, SR., J.:

The Extra Excel International Philippines, Inc. (EEIPI) is a corporation duly organized
and registered under the laws of the Philippines. One of the members of its Board of
Directors was Hu Ruey Chun a.k.a. Richard Hu, a Taiwanese, who was also its president
and general manager; Ralph S. Villanueva was the financial manager.[1]
On September 25, 2001, the EEIPI filed a criminal complaint for qualified
theft[2] of P762,076.35 against Hu in the Office of the City Prosecutor of Makati City.
Appended thereto was the affidavit-complaint of Villanueva, with the following allegations:

4. Mr. Hu is a stockholder and the former Director, President and General Manager of
E. Excel. During his term as Director, President and General Manager, he was also the
authorized sole signatory to all the checks issued by E. Excel to pay for the latters
business expenses. He was also authorized to disburse corporate funds in payment of
legitimate business expenses.

4.1 Mr. Hu ceased to be the President in 22 December 2000, as General Manager in

the second half of 2000, and as Director in 15 June 2001.

5. After the respondent left Excel, the new management hired an independent auditing
firm to perform audit procedures. One of the purposes of the audit is to verify the
regularity of certain checks issued by the respondent.

6. During the audit, I discovered that Mr. Hu issued a check drawn against the
companys funds in Equitable PCIBank (formerly PCIBank), Rufino Tower branch,
with Account No. 00-5722-01480-9, not covering any business expense, and
PAYABLE TO HIMSELF. The check I refer to is Equitable PCIBank Check No.
292740 dated 10 July 1998 in the amount of Php762,076.35. Copy of the check
(including the dorsal portion thereof) is hereto attached as Annex B.
6.1 The Equitable PCIBank, Rufino Tower branch is located at Herrera Street corner
Ayala Avenue, Makati City.

6.2 The check was issued on or about the date of the check in the office of Excel
located at 24/F Rufino Pacific Tower, 6784 Ayala Avenue cor. Herrera St., Makati
City.

7. From Excels passbook, the check cleared on 15 July 1998 after it was deposited
into PCIBank Account No. 5722-0179-0. Copy of the front page of the passbook, and
the page showing that the amount of the check was debited on the same date from the
funds of Excel, is hereto attached as Annexes C and D, respectively.

7.1 Note that the account number of E. Excels passbook do not correspond to the
account number appearing on the face of the checks. This, however, is explained by
the fact that the passbook account is a savings account, while the account number
appearing on the face of the checks represents the checking account of E. Excel. As
per certification of Equitable PCIBank, the passbook account is linked to the checking
account, meaning when the checks are drawn against E. Excels checking account, the
funds to cover the same would be debited from the passbook account and, then,
transferred to the checking account to pay the checks. Copy of the aforementioned
certification is hereto attached as Annex E.

7.2 Since the check was payable to Mr. Hu himself, it is indubitable that the
respondent received, and benefited personally from, the proceeds of the check. It
bears stressing that the subject check being payable to Richard Hu, only he can collect
it.[3]

Hu submitted a counter-affidavit wherein he alleged that the P762,076.35

represented his 5% commission of the gross sales of the corporation amounting
to P152,415,269.00.[4]
After the requisite preliminary investigation, the Office of the City Prosecutor issued
a Resolution[5] dated December 14, 2001, dismissing the complaint for insufficiency of
evidence. The EEIPI appealed the resolution, and on July 10, 2002, the Department of
Justice (DOJ) resolved to grant the appeal and reversed the appealed resolution. [6] The
DOJ held as follows:

Drawing from the respective allegations of the parties, and the evidence adduced in
support thereof, the established facts are: (1) Respondent is the sole signatory of
corporate checks of Excel for unlimited amount that are used to pay the companys
legitimate business expenses; (2) Respondent received the money represented by the
check; (3) There is no resolution of the Board of Directors or any written contract
with Excel authorizing the payment of commission to its General Manager; and (4)
The subject check disbursement appears in the records of Excel. However, there were
no supporting documents for the check disbursement such as invoice charging the
amount of payment, a contract showing what, when, where, why and how much is to
be paid by Excel, receipt of the payment made, and withholding tax returns for the
taxable payment made.

No one can argue that respondent is only authorized to issue corporate checks for
legitimate business expenses. Neither can there be an argument that the money used to
cover the subject check came from Excel. Evidence adduced and, in fact, impliedly
admitted by respondent that, indeed, the proceeds of the check was received by him. It
is for this reason that there is taking. However, whether the taking is lawful or not is
still challenged, and would be put to rest only by the resolution of the issue on
whether respondent can claim subject commissions.

We agree with complainant that the respondent is not entitled to the commissions he
claimed from Excel. The affidavits of Hendrik Tjandra, General Manager of E. Excel
Singapore and Malaysia; Mr. Andrew Lee, General Manager of E. Excel Hongkong
and Taiwan; and Ms. Lau Phooi Hing, General Manager of Excel, overwhelms the
lone affidavit of Mr. Tzu Shih Shih, the ex-General Manager of E. Excel Hongkong.

Nothing can attest to the truth of the matter than the present General Manager of
Excel. That she is not receiving a .5% commission based on the monthly gross sales
of Excel constitutes a declaration against her own interest, in that she too could have
taken the commissions claimed by her predecessor. But she did not.

The contention of respondent that the reason for the lack of a Board Resolution of
Excel regarding the claimed commissions is because the Board of Directors seldom
meets to tackle day-to-day business operations. We agree with Excel that a company
as big as it is cannot survive, financially or, otherwise, were it run through the verbal
instructions of one person who is not even a direct stockholder. Besides, the
contention of respondent runs counter to the presumptions established by the Rules on
Evidence that private transactions have been fair and regular and that the ordinary
course of business has been followed. (Sec. 3, Rule 131 of the Rules of Court)

Even the employment contract of respondent is silent as to the alleged commissions

he claimed, notwithstanding the fact that the employment contract is signed solely by
respondent for himself and in behalf of Excel. Moreover, respondent did not pay taxes
on the commissions he claimed, a fact that negates that the same were taken as
commissions.

Finally, the defenses presented by respondent are mostly evidentiary in nature and are
matters of defense, the truth of which can be best passed upon after a full-blown trial
on the merits. Hence, this is not the proper forum where the defense evidence of
respondent may be evaluated vis--vis the evidence of Excel. That function is better left
to the courts of justice.[7]

The DOJ ordered the City Prosecutor to file the Information for qualified theft against
Hu within five (5) days from notice thereof.
Conformably with the resolution of the DOJ, the City Prosecutor filed an Information
for qualified theft against Hu in the Regional Trial Court (RTC) of Makati City on July 18,
2002. The case was raffled to Branch 148 thereof. The prosecutor recommended a bail
of P40,000.00 for the provisional liberty of the accused, based on DOJ Department
Circular No. 74 issued on November 6, 2001, which reads:

B. FOR QUALIFIED THEFT:

3) Where the value of the property stolen is P32,000.00 or over, in which the
imposable penalty ranges from reclusion temporal to reclusion perpetua, bail shall be
based on reclusion temporal in its maximum period, pursuant to Par. 2(a) of the 2000
Bail Bond Guide, multiplied by P2,000.00, plus an additional P2,000.00 for
every P10,000.00 in excess of P22,000.00; Provided, however, that bail shall not
exceed P80,000.00.[8]

On August 1, 2002, the RTC issued an Order[9] for the issuance of a warrant of arrest
against the accused, considering that the imposable penalty for the crime charged
was reclusion perpetua to death. The RTC, thus, rejected the recommendation of the
public prosecutor to grant bail to the accused in the amount of P40,000.00.
On August 23, 2002, Hu filed a motion for the reconsideration of the said order,
contending that DOJ Department Circular No. 74 should be applied. He pointed out that
the recommended bail in the said circular was based on the ruling of this Court in People
v. Hernando.[10]
On August 27, 2002, the trial court issued an Order[11] denying the motion, in light of
the ruling in People v. Bago,[12] where the Court held that the imposable penalty for
qualified theft is reclusion perpetua; hence, bail is not a matter of right.
Hu filed a petition for certiorari with the Court of Appeals (CA) for the nullification of
the August 1, 2002 and August 27, 2002 Orders of the trial court, contending that:

The public respondent committed grave abuse of discretion amounting to lack or

excess of jurisdiction in issuing the Orders dated August 01, 2002 and August 27,
2002. This is because:

1. The public respondent denied the petitioners constitutional right against deprivation
of liberty without due process of law when he upgraded to non-bailable the crime of
qualified theft.
2. Also, the public respondent failed to conduct the requisite hearing, to determine
whether the guilt of the petitioner is strong or not when he issued the assailed Orders,
denying bail to the petitioner.[13]

Meanwhile, the DOJ issued a Resolution[14] on November 15, 2002 denying Hus
motion for the reconsideration of its July 10, 2002 Resolution.
On January 16, 2003, the CA rendered judgment granting the petition and nullifying
the assailed orders of the trial court.[15] The appellate court cited DOJ Department Circular
No. 74, which provides that qualified theft is bailable. It further ruled that the Circular
should be given great weight and respect, considering that the DOJ issued the Circular
after the ruling in People v. Bago[16] was promulgated. Apparently, under the November
15, 2002 DOJ Resolution, the DOJ had not yet resolved the motion for reconsideration of
its July 10, 2002 Resolution; hence, the order of the RTC was premature. The appellate
court opined that until the DOJ had resolved the motion for reconsideration filed by Hu,
the warrant for his arrest should not have been issued.[17]
The People of the Philippines, through the Office of the Solicitor General (OSG), filed
a motion for the reconsideration of the decision, to no avail, as the CA resolved to deny
the same on April 23, 2003.[18]
On June 17, 2003, the People of the Philippines, now the petitioner, filed a petition
for review on certiorari of the decision and resolution of the CA on the following grounds:
A

THE COURT OF APPEALS COMMITTED A GRAVE ERROR OF LAW WHEN

IT RULED THAT THE CRIME OF QUALIFIED THEFT THOUGH CARRYING
THE PENALTY OF RECLUSION PERPETUA IS BAILABLE ON THE BASIS
ALONE OF DOJ CIRCULAR NO. 74.

THE COURT OF APPEALS COMMITTED A GRAVE ERROR OF LAW WHEN

IT FAILED TO CONSIDER THAT RESPONDENT CANNOT SEEK RELIEF
FROM THE TRIAL COURT WHOSE JURISDICTION HE HAS NOT
RECOGNIZED AS HE HAS EVEN CONTINUOUSLY EVADED IT.

THE ORDER OF ARREST ISSUED AGAINST RESPONDENT DOES NOT

AMOUNT TO A DENIAL OF HIS RIGHT TO BAIL; IT IS SIMPLY A PROCESS
OF ACQUIRING JURISDICTION OVER HIS PERSON.

D
THE COURT OF APPEALS HAS NO JURISDICTION TO RESTRAIN THE
TRIAL COURT FROM ACQUIRING JURISDICTION OVER THE PERSON OF
RESPONDENT.

RESPONDENTS MOTION FOR RECONSIDERATION OF THE DOJ DIRECTIVE

TO FILE INFORMATION AGAINST HIM WAS ALREADY DENIED UNDER
RESOLUTION DATED NOVEMBER 15, 2002.[19]

Citing the ruling of this Court in Te v. Perez,[20] the petitioner averred that DOJ
Department Circular No. 74 is not conclusive and binding on the court, and is merely a
guide. The petitioner maintains that the ruling in People v. Hernando[21] is not controlling
in this case, because the crime charged in the RTC is qualified theft, while the felony
subject of the case in People v. Hernando is estafa. The petitioner posits that since the
imposable penalty for qualified theft is reclusion perpetua, bail is a matter of discretion on
the part of the trial court. The petitioner asserts that the trial court was not proscribed from
issuing a warrant for the respondent-accuseds arrest, as it was a prerequisite for the court
to acquire jurisdiction over his person. It posits that unless and until the respondent is
arrested or brought under the custody of the trial court, he cannot assail the orders issued
by it. It laments that the respondent had already fled to Taiwan, which is beyond the
territorial jurisdiction of the trial court, and has thus evaded arrest. It submits that the
Rules of Criminal Procedure should not be used to suit the respondents convenience.
In his comment on the petition, the respondent averred that

CONTRARY TO PETITIONERS CLAIM, [THE] COURT OF APPEALS

COMMITTED NO GRAVE ERROR OF LAW IN ANNULLING AND SETTING
ASIDE THE RTC-MAKATIS ORDERS DATED AUGUST 01, 2002 AND
AUGUST 27, 2002, AND IN DECLARING THE CRIME OF QUALIFIED THEFT
CHARGED AGAINST RICHARD HU AS A BAILABLE OFFENSE.[22]

CONTRARY TO THE PETITIONERS CLAIM, [THE] COURT OF APPEALS

COMMITTED NO GRAVE ERROR OF LAW IN CONSIDERING AND
GRANTING RICHARD HUS PETITION FOR CERTIORARI EVEN IF HE HAD
NOT BEEN ARRESTED OR, OTHERWISE, PHYSICALLY RESTRAINED, IN
VIEW OF THE FACT THAT THE ASSAILED ORDERS WERE NULL AND
VOID AB INITIO BECAUSE RTC-MAKATI HAD NO AUTHORITY IN LAW TO
ISSUE THEM.[23]

The petition is meritorious.

The respondent asserts that the August 1, 2002 and August 27, 2002 Orders of the
trial court are null and void; hence, may be assailed by him before any warrant for his
arrest is issued by the trial court. He insists that qualified theft is a bailable offense as
gleaned from DOJ Department Circular No. 74, which was issued after the Court
promulgated its decision in People v. Hernando,[24] and reiterated in People v.
Panganiban.[25] While the said Circular is not binding on the courts, it nevertheless merits
consideration, as it is, in a sense, an expression of policy of the Executive Branch (through
the DOJ) in the enforcement of criminal laws. The respondent contends that the rulings
of this Court in People v. Hernando and People v. Panganiban are also applicable, since
like estafa, the penalty for theft is dependent on the value stolen or amount of the fraud.
The petitioners reliance on the ruling of this Court in People v. Bago is misplaced, since
the Court in Bago did not categorically state therein that qualified theft is a non-bailable
offense.
In any event, the respondent asserts, the trial court committed grave abuse of its
discretion when it denied his petition for bail via its August 1, 2002 Order without a prior
determination or hearing on the strength of the evidence against him.
The Court agrees with the respondents contention that he was not proscribed from
assailing the August 1, 2002 Order of the RTC before the CA on certiorari, even before
his arrest. The respondent believed, albeit erroneously, that the aforementioned order of
the RTC was null and void; hence, it may be assailed any time, either directly or
collaterally, or by resisting such order in any action or proceeding wherein it is
involved.[26] One need not wait to be arrested before filing such petition. Upon receipt of
a copy of the said order from the RTC, the respondent already had the right to assail the
same in an appropriate proceeding for the said purpose.
However, the Court agrees with the petitioners contention that the RTC was not
proscribed from issuing the assailed order on August 1, 2002. While it is true that the
respondent filed a motion for the reconsideration of the July 10, 2002 Resolution of the
DOJ, there is no showing that the RTC was apprised thereof. Moreover, the respondent
assailed the August 1, 2002 Order not because it was issued while his motion for
reconsideration of the July 10, 2002 Resolution of the DOJ was pending, but solely
because it was issued without any prior hearing and in utter disregard of DOJ Department
Circular No. 74.
In any event, the fact of the matter is that the DOJ denied the respondents motion for
reconsideration of its July 10, 2002 Resolution before the CA rendered judgment granting
the petition for certiorari.
On the merits of the petition, we find and so rule that the CA erred in nullifying the
August 1, 2002 Order of the RTC. Indeed, the RTC did not commit any abuse of its
discretion in issuing the said order. In fact, the order is in accord with the Constitution, the
Revised Rules of Criminal Procedure and case law.
The Constitution provides that all persons, except those charged with offenses
punishable by reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties or be released on recognizance as may be
provided by law.[27] Section 7, Rule 114 of the Revised Rules of Criminal Procedure
provides that no person charged with a capital offense or an offense punishable
by reclusion perpetua or life imprisonment shall be admitted to bail when evidence of guilt
is strong, regardless of the stage of the criminal prosecution.
 The rule is that the RTC judge shall personally evaluate, within ten (10) days from the
filing of the complaint or Information, the resolution of the prosecutor and its supporting
evidence. If he finds probable cause, he shall issue, without need of any hearing, a
warrant of arrest unless the accused is already under detention, in which case, the judge
shall issue a commitment order.[28] If the accused is charged with an offense punishable
by death, reclusion perpetua or life imprisonment, the judge should not grant bail for his
provisional release, regardless of whether or not the prosecutor recommends bail for the
provisional release of the accused under DOJ Department Circular No. 74. However, if
the accused has been brought under custody of the court, he may file a petition for bail
for his provisional liberty. If, after the requisite hearing,[29] the court finds that the evidence
of the accused is strong, the petition shall be denied. Consequently, the accused will
remain under the custody of the court. However, if the evidence of guilt of the accused is
not strong,[30] the petition shall be granted and the accused discharged upon approval of
the bail bond, in such amount fixed by the court, taking into consideration the guidelines
set forth in Section 9, Rule 114 of the Revised Rules of Criminal Procedure, in tandem
with DOJ Department Circular No. 74, as well as the recommendation of the public
prosecutor.
In this case, the respondent was charged with qualified theft of P762,076.35.
In People v. Caales,[31] the Court ruled that the penalty for qualified theft under Article 40
of the Revised Penal Code, taking into account the value of the property stolen,
is reclusion perpetua with the accessory penalty of death, with no possibility of pardon
before the lapse of forty years:

We now come to the correctness of the penalty imposed by the respondent court. We
quote the well-researched disquisition of the appellate court, viz.:

The Court a quo meted on Caales an indeterminate penalty of Thirteen (13) Years,
One (1) Month and Eleven (11) Days to Eighteen (18) Years, Nine (9) Months and
Twenty (20) Days both of Reclusion Temporal. The Court was in error. The court
imposed merely the penalty for theft under Article 309 of the Revised Penal Code,
quoted infra, as follows:

ART. 309. Penalties. Any person guilty of theft shall be punished by:

1. The penalty of prision mayor in its minimum and medium periods, if the value of
the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if the
value of the thing stolen exceed the latter amount, the penalty shall be the maximum
period of the one prescribed in this paragraph, and one year for each additional ten
thousand pesos but the total of the penalty which may be imposed shall not exceed
twenty years. In such cases, and in connection with the accessory penalties which may
be imposed and for the purpose of the other provisions of this Code, the penalty shall
be termed prision mayor or reclusion temporal, as the case may be. (idem, supra;
Italics supplied)
The value of the truck, the van and the cargo contained therein should be used as basis
for the imposable penalty although the truck and van were recovered (People versus
Juan Carpio, 54 Phil. 48). Since the value of the truck was P300,000.00 and the cargo
was valued at P2,500,000.00 (Exhibit C), the imposable penalty for the felony of theft
was reclusion temporal. However, under Article 310 of the Revised Penal Code, the
crime of qualified theft is punished by the penalties next higher by two (2) degrees
than that specified in Article 309 of the Revised Penal Code. Under Article 25 of the
Revised Penal Code, two (2) degrees higher than reclusion temporal is death. This is,
likewise, conformable with Article 74 of the Revised Penal Code, which provides
that:

ART. 74. Penalty higher than reclusion perpetua in certain cases. In cases in which
the law prescribes a penalty higher than another given penalty, without specifically
designating the name of the former, if such higher penalty should be that of death, the
same penalty and the accessory penalties of Article 40, shall be considered as the next
higher penalty. (idem, supra; Italics supplied)

The provision, however, proscribes the imposition of the death penalty resulting from
the graduation of the penalty. It bears stressing that Article 74 of the Revised Penal
Code was based on Article 93 of the Old Penal Code which provided that if the
penalty is reclusion perpetua, the next higher penalty would be the same penalty but
the convict in such cases cannot be pardoned until forty years had elapsed (Aquino,
Comments on the Revised Penal Code, 1987 ed., Volume 1, page 709).

But there is a pervading divergence of opinion among commentators of the Revised

Penal Code as to what the higher penalty referred to in Article 74 of the Revised Penal
Code should be. Some authors are of the view that the higher penalty would
be reclusion perpetua with the accessory penalties for said penalty. But then, under
Article 74 of the Revised Penal Code, the accessory penalties under Article 40 of the
Revised Penal Code should be imposed. Still others, like former Senator Ambrosio
Padilla are of the view that the higher penalty is reclusion perpetua but with the
accessory penalties of death under Article 40 of the Revised Penal Code if the death
penalty is commuted. But then, the accessory penalty under Article 40 of the Revised
Penal Code is perpetual absolute disqualification and civil interdiction during thirty
(30) years following the date of sentence, whereas, the accessory penalty of reclusion
perpetua under Article 41 of the Revised Penal Code is civil interdiction for life and
perpetual absolute disqualification. As aptly observed by former Chief Justice Ramon
C. Aquino, there seems to be an absurdity under the latter view (Aquino, Comments
on the Revised Penal Code, supra). On the other hand, Justice Albert is of the firm
view that:
The Code meant to say here that the judgment should provide that the convict should
not be given the benefit of the provisions of Article 27 until forty years should have
elapsed; otherwise, there could be no difference at all between reclusion
perpetua when imposed as the penalty next higher in degree and when it is imposed as
the penalty fixed by law. (Albert, Comments on the Revised Penal Code, 1932 edition,
page 240)

to which Justice Luis Reyes subscribes (Reyes, Comments on the Revised Penal Code,
1981 ed., Vol. 1, page 746). Former Chief Justice Ramon C. Aquino, likewise, is in
accord with the opinion of Justice Albert.

xxx

Justice Albert believes that the penalty higher than reclusion perpetua is reclusion
perpetua for forty years with the accessory penalties of death under Art. 40.
Otherwise, as he said there could be no difference at all between reclusion perpetua,
when imposed as the penalty next higher in degree and when it is imposed as the
penalty fixed by law. This opinion is supported by Art. 93 of the old Penal Code from
which Art. 74 was taken. Art. 93 provides that if the given penalty is cadena
perpetua or reclusion perpetua, the next higher penalty would be these same penalties
but the convict in such case cannot be pardoned until forty years elapsed. (Aquino,
Comments on the Revised Penal Code, 1987 ed., Volume 1, pages 708-709)

We are, likewise, in accord with the opinion of Justice Albert as a logical explanation
and application of Article 74 of the Revised Penal Code. Consequently, Caales should
be meted the penalty Reclusion Perpetua for Forty Years with the accessory penalties
of death under Article 40 of the Revised Penal Code. In fine, Caales is not entitled to
pardon before the lapse of the forty-year period. (Reyes, Comments on the Revised
Penal Code, 1977 ed., Volume 1, page 747).

We agree with this dissertation considering that it is supported by the opinions of our
leading commentators in penal law.[32]

The Court reiterated this ruling in People v. Bago.[33] Since the imposable penalty for
the felony charged is reclusion perpetua, the respondent was not entitled to bail as a
matter of right. Hence, the RTC was correct in rejecting the recommended amount of bail
of P40,000.00, and ordering the issuance of a warrant for the respondents arrest.
The Court agrees with the contention of the petitioner that the rulings
in Hernando and Panganiban are not decisive of the issue in this case, because the
petitioner therein was charged with estafa, and not qualified theft.
 IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision and
Resolution of the Court of Appeals are REVERSED AND SET ASIDE. The assailed Order
of the Regional Trial Court is AFFIRMED.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.

[1] Rollo, p. 138.

[2] ART. 310. Qualified theft. The crime of theft shall be punished by the penalties next higher by two
degrees than those respectively specified in the next preceding article, if committed by a domestic
servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or
large cattle or consists of coconuts taken from the premises of a plantation, fish taken from a
fishpond or fishery or if property is taken on the occasion of fire, earthquake, typhoon, volcanic
eruption, or any other calamity, vehicular accident or civil disturbance.
Article 309 of the Revised Penal Code provides the penalties for theft, as follows:
ART. 309. Penalties. Any person guilty of theft shall be punished by:
1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen
is more than 12,000 pesos but does not exceed 22,000 pesos; but if the value of the thing stolen
exceed the latter amount, the penalty shall be the maximum period of the one prescribed in this
paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which
may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory
penalties which may be imposed and for the purpose of the other provisions of this Code, the
penalty shall be termed prision mayor or reclusion temporal, as the case may be.
2. The penalty of prision correccional in its medium and maximum periods, if the value of the thing
stolen is more than 6,000 pesos but does not exceed 12,000 pesos.
3. The penalty of prision correccional in its minimum and medium periods, if the value of the
property stolen is more than 200 pesos but does not exceed 6,000 pesos.
4. Arresto mayor in its medium period to prision correccional in its minimum period, if the value of
the property stolen is over 50 pesos but does not exceed 200 pesos.
5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos.
6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos.
7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the
circumstances enumerated in paragraph 3 of the next preceding article and the value of the thing
stolen does not exceed 5 pesos. If such value exceeds said amount, the provisions of any of the
five preceding subdivisions shall be made applicable.
8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the
thing stolen is not over 5 pesos, and the offender shall have acted under the impulse of hunger,
poverty, or the difficulty of earning a livelihood for the support of himself or his family.
G.R. No. L-46080 November 10, 1978

DOMINADOR LAYOSA, petitioner,

vs.
HON. JOSE P. RODRIGUEZ, Judge of the Court of First Instance of Palawan, and FERNANDO
M. DILIG, City Fiscal of Puerto Princess, Palawan respondents.

Carsi Cruz & Callanta Law Offices for petitioner.

City Fiscal Fernando M. Dilig for the respondents.

AQUINO, J.:

This case is about the suspension of Dominador Layosa the collector of customs of Palawan and
Puerto Princess City, who on March 17, 1947 was charged by the city fiscal in the Court of First
Instance of Palawan with having violated the Anti-Graft and Corrupt Practices Law (Republic Act No.
3019). The information was based on the complaint filed by the assistant director of the District Anti-
Smuggling Action Center. It was one of the five cases filed against Layosa, aside from a
malversation case (p. 85, Rollo).

The gravamen of the charge against Layosa is that during the period from April to December, 1976
he demanded and received from the patron of the M/V Lady Angelita I, whenever that vessel docked
at the Puerto Princesa wharf to unload and load cargoes of the San Miguel Corporation, two to three
cases of beer and soft drinks as the consideration for giving the vessel preferential berthing facilities
(Criminal Case No. 1778).

On the following day, March 18, the fiscal, acting pursuant to section 13 of Republic Act No. 3019,
filed a motion for Layosa's suspension. A copy of that motion and of the orders setting it for hearing
were furnished Layosa. The motion was heard on March 25, 1977. At the hearing, Layosa's counsel
cross-examined the prosecution's witness. Respondent Judge granted the motion in his order dated
April 11, 1977 at Brooke's Point. He found that a valid information had been filed against Layosa.

On May 10, 1977, Layosa filed in this Court the instant petition for certiorari. He prayed that the
order of suspension be set aside. He contended that the court did not acquire jurisdiction over his
person because no warrant of arrest had as yet been issued when the hearing on his suspension
was held and the case was not raffled to respondent Judge, that the Chief State Prosecutor in a
telegram to the fiscal dated March 24, 1977 directed that the record of the case be elevated for
review, and that respondent Judge gravely abused his discretion in issuing the suspension order.

Because Layosa defied the order of suspension, the lower court in its order of June 15, 1977
adjudged him in contempt of court and penalized him by imprisonment for three months and a fine of
P500. Layosa appealed from that order to the Court of Appeals.

Respondent Judge in his comment on the petition explained that, to avoid delay, he acted on the
motion for suspension because the case was filed after the raffling of the cases between the two
branches of the court had been terminated. He was scheduled to hold sessions at Brooke's Point
and the other Judge was to begin his one-month vacation. Respondent Judge pointed out that his
action on the motion for suspension was sanctioned by Administrative Order No. 6 of this Court
dated July 1, 1975 which empowers the Executive Judge to act on interlocutory matters prior to the
raffling of a case.

The case was eventually raffled to the sala of respondent Judge. Layosa posted a bail bond. He was
arraigned on October 4, 1977. He was replaced by Carlos Razo as collector of customs. On
September 29, 1977, the Office of State Prosecutors sustained the filing of the information against
Layosa.

Layosa did not submit a memorandum. Respondent fiscal in his memorandum alleged that the
petitioner had abandoned his contention as to lack of jurisdiction over his person (based on the
grounds that the case was not raffled to respondent Judge and that no warrant of arrest was issued
before the hearing on his suspension was held). The fiscal stressed that the case had been
scheduled for trial at the instance of the petitioner and that the latter had manifested his willingness
to proceed with the trial.

Under the circumstances recited above, we hold that the petition for certiorari is devoid of merit and
that the trial court did not act with grave abuse of discretion in issuing the order of suspension.

There is no question that the lower court acquired jurisdiction over the case upon the filing of the
information. The offense charged is within its jurisdiction. The petitioner was notified of the pre-
suspension hearing. His counsel participated in that hearing. The requirements of due process were
observed. The law contemplates an expeditious hearing on the suspension of the accused. Public
interest demands a speedy determination of that question. (See Sugay vs. Pamaran, L-33877-79,
September 30, 1971, 41 SCRA 260; Luciano vs. Wilson, L-31347, August 31, 1970, 34 SCRA 638;
Luciano vs. Mariano,
L-23950, July 30, 1971, 40 SCRA 187; Oliveros vs. Villaluz, L-33362, July 30, 1971, 40 SCRA 327;
Luciano vs. Provincial Governor, L-30306, June 20, 1969, 28 SCRA 517).

It is true that petitioner was not yet arrested or taken into custody when the pre-suspension hearing
was held. However, his voluntary appearance at that hearing through his counsel was a submission
to the lower court's jurisdiction. (Note that in civil cases, defendant's voluntary appearance is
equivalent to service of summons.)

Where a court has jurisdiction of the offense or subject matter, the objection that it
has no jurisdiction of the person of the accused may be waived. One who desires to
object to the jurisdiction of the court over his person must appear in court for that
purpose only, and if he raises other questions, he waives the objection. (22 C.J.S.,
1961 Ed. p. 418). In the instant case, Layosa waived the objection based on lack of
jurisdiction over his person when, as already noted, he appeared at the pre-
suspension hearing and his counsel cross-examined the prosecution witness.

WHEREFORE, the petition is dismissed. Costs against the petitioner.

SO ORDERED.

Fernando (Chairman), Barredo, Antonio, Concepcion, Jr. and Santos, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 93021 May 8, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MARIANO UMBRERO, ALFREDO COSTALES alias PIDO, JIMMY AGLUBA and LEON
CERIA, accused. MARIANO UMBRERO, ALFREDO COSTALES @ Pido, and JIMMY
AGLUBA, accused-appellants.

The Solicitor General for plaintiff-appellee.

Alfredo J. Donato for accused-appellants.

GUTIERREZ, JR., J.:

This is an appeal from the decision of the Regional Trial Court of Aparri, Branch 8, the dispositive
portion of which reads:

WHEREFORE, in view of the foregoing considerations, the Court finds the accused Mariano
Umbrero, Jaime (Jimmy) Agluba and Alfredo Costales alias Pido, guilty of the crime of
MURDER as defined and penalized under Article 248 of the Revised Penal Code and
therefore sentences each of them to suffer the penalty of RECLUSION PERPETUA; to pay
jointly and severally an indemnity of THIRTY THOUSAND (P30,000.00) PESOS to the heirs
of Alfonso Urbi; and each of them to pay 1/7 of the costs. (Rollo, p. 31)

The information filed against the accused reads:

That on or about November 29, 1980, in the Municipality of Lallo, province of Cagayan, and
within the jurisdiction of this Honorable Court, the said accused, Mariano Umbrero, Alfredo
Costales alias Pido, Jimmy Agluba and Leon Ceria, together with Eugenio
Rigon alias Inyong, Bartolome Tangonan and Danny Costales who are still at-large and not
yet arrested, armed with guns, conspiring together and helping one another, with intent to
kill, with evident premeditation and with treachery, did then and there wilfully, unlawfully and
feloniously assault, attack and shoot one, Alfonso Urbi, inflicting upon the latter wounds on
his body which caused his death.

That the offense was committed with the following aggravating circumstances, to wit: (a) that
it was committed with abuse of superior strength, and (b) that it was committed by a band.
(Records, p. 33)

The accused Mariano Umbrero, Alfredo Costales, Jimmy Agluba and Leon Ceria pleaded not guilty
on arraignment. The other accused, Eugenio Rigon, Bartolome Tangonan, and Danny Costales
were not arraigned as they were still at large.
The prosecution evidence upon which the trial court based its finding of guilt beyond reasonable
doubt is as follows:

xxx xxx xxx

. . . Angelina Urbi Ragsac, daughter of the victim Alfonso Urbi testified: She was at home in
Sta. Teresa at about 2:00 in the afternoon of November 29, 1980 when several armed men
came, two (2) of whom shot her father under the house, accused Alfredo Costales and
Danny Costales. She was not able to recognize the other armed men. She was two (2)
meters from her father when he was shot. Of the two accused mentioned, she only identified
in Court accused Alfredo Costales. Danny Costales was not present. He was the one who
shot her father. He followed her father when he ran outside the house but the companions of
Alfredo Costales followed and killed him. Alfredo Costales and Danny Costales shot her
father with short firearms. Their companions had long firearms. All the accused ran after
killing her father. She and her mother did not do anything because they were afraid;
however, they went to get the body of her father later on. He sustained five (5) gunshot
wounds on his breast and stomach. She reported the killing of her father to barangay captain
Felix Villamin. Thereafter she executed an affidavit marked as Exhibits "E" and "E-1" which
were admitted by the defense as part of the record. Mariano Umbrero was among the armed
men who came to their house in the afternoon of November 29, 1980. She knows him
personally.

On cross-examination defense counsel Atty. Alfredo J. Donato made reference to question

No. 5 and the corresponding answer, in the affidavit of the witness (Exhibits "E" & "E-1 ") to
be marked as Exhibit "I " for the defense. She admitted that the first one to shoot her father
was Danny Costales of Jurisdiccion, Camalaniugan known and called Dominador who
executed an affidavit. She knew that Alfredo Costales was apprehended. As to Danny
Costales, she does not know whether or not he was apprehended. In 1980 their place was
infested with NPA and she believed that Danny Costales and his companions were members
of the NPA. She does not know of any motive of the armed men in killing her father. She, her
father and mother and her children were then eating on the ground floor of their house when
the armed men arrived. Her father stood up when Danny Costales asked for water to drink.
Her father went to the door to see him and his companions. It was there where Danny
Costales shot him.

On August 5, 1985 the prosecution presented Eugenia Urbi, surviving spouse of the victim
Alfonso Urbi. Her testimony is hereby reproduced substantially: In the afternoon of
November 29, 1980, at about 2:00 o'clock, she and her deceased husband were in the
house of their daughter Angelina Urbi Ragsac in Sta. Teresa, Lallo. To their surprise, armed
men came to ask for water. When her husband went to them to give water he was shot by
Johnny Costales. Mariano Umbrero, Jimmy Agluba and Pido Costales were his companions.
She identified in Court Pido Costales who gave his name as Alfredo Costales, Mariano
Umbrero and Jaime Agluba. Johnny Costales was not in Court. She knows Leon Ceria he
being her barriomate. She saw him the following day after the killing of her husband when he
passed by their house. She did not see Leon Ceria with the group of armed men who went to
their house. She was about a meter from her husband when he was shot by Johnny
Costales in the presence of his companions. Johnny and Danny Costales was admitted as
one and the same person. At the time Danny Costales shot her husband, some of his
companions were near him and some were a little bit far. Those who were near him were the
accused Pido Costales, Mariano Umbrero and Jimmy Agluba. They were all armed. Danny
Costales and his companions left after shooting her husband. Thereafter the killing of her
husband was reported to barangay captain Felix Villamin who instructed Juan Urbi to get the
 body of her husband. She could not be compensated for the killing of her husband. She was
investigated, and in connection therewith she executed an affidavit (Exhibits "F" and "F-1").

On cross-examination, she testified that Danny Costales shot her husband three (3) times.
She clarified that when they were eating, Danny Costales and his companions suddenly
arrived. They asked for water. Her husband stood up and went to see them. That was the
time when Danny Costales shot her husband for the first time. Her husband ran outside,
followed by Danny Costales and shot him again. Danny Costales and his companions then
left. She did not go immediately to the place of her husband because she was afraid. At the
time Danny Costales shot her husband, accused Alfredo Costales, Jaime Agluba and
Mariano Umbrero were holding their firearms at their sides. They drew their guns when her
husband ran outside the house; however, they did not prevent her husband from running
outside the house. She could not tell as to whether or not Mariano Umbrero, Jimmy Agluba
and Alfredo Costales fired their guns.

Exhibit "B", sworn statement of Eugenia Urbi, was also adopted as Exhibit "4" for the
defense, to show that the victim sustained five (5) gunshot wounds, the entrance of which
were 0.5 cm. showing that the fatal weapon was fired by one person.

On August 28, 1985 the prosecution presented Martin Pagaduan, also a resident of Sta.
Teresa, Lallo, Cagayan. He was in his ricefield north of the house of Alfonso Urbi on the day
he was shot to death. He saw more than ten (10) armed men passed by going westward. Not
long thereafter, he heard gun reports from the house of Alfonso Urbi which is less than fifty
(50) meters from his ricefield. The armed men returned and proceeded eastward. They took
his brother Juan Pagaduan. He was able to identify Mariano Umbrero, Jimmy Agluba, Pido
Costales, Inyong Rigon, Florante Tabunal and Romy Arellano who were with the group of
armed men he saw. When he heard gun reports he saw the armed men surrounding the
house of Alfonso Urbi. The persons in the house cried loudly. He went to hide because he
was afraid. When the armed men were already gone, he went to the house of Alfonso Urbi.
He saw him already dead in his yard. He sustained gunshot wounds. He identified in Court
accused Mariano Umbrero, Jimmy Agluba and Alfredo Costales. They were all holding
firearms when they passed by. He was confronted with his affidavit taken during the
investigation conducted by the Integrated National Police of Lallo which was marked as
Exhibits "G" and "G-1 ".

On cross-examination he admitted that he was examined during the preliminary investigation

conducted by the Municipal Trial Court of Lallo. His signature appearing therein was marked
as Exhibit "2" and the signature of Judge Pascual as Exhibit "2-B". The question of the Court:
"How did you know that there were ten (10) heavily armed men who were present in the
house of Alfonso Urbi on November 29, 1980 at around 2:00 o'clock in the afternoon when
he was gunned down by these heavily armed persons? Ans. I was around forty (40) meters
away from these heavily armed persons preparing my harrow when I was attracted by the
presence of those armed persons when one of them by the name of Doming Arellano shot
the late Alfonso Urbi with an armalite was marked as Exhibit "2-D". (Rollo, p. 22-24)

The case as against Leon Ceria was dismissed for insufficiency of evidence.

As for Mariano Umbrero, Alfredo Costales and Jimmy Agluba, their version is summarized as
follows:

xxx xxx xxx

 . . . Mariano Umbrero corroborated his witness Alejandrino Umangay, that they they left Sta.
Teresa and Rosario, respectively because the soldiers ordered them to evacuate; they and
other residents of the barangay were suspected as members of the NPA. On November 29,
1980, Alejandrino Umangay went to collect from Mariano Umbrero an indebtedness of
P200.00. To pay the same Mariano Umbrero sought to mill his palay in Bical, Lallo, a
distance of three kilometers in the ricemill of Gregorio Cabulay. As they were putting in a
sack the palay, two men arrived Ka Al the leader of the NPA and Danny Costales. They
invited Mariano Umbrero to the house of Alfonso Urbi. Mariano Umbrero excused himself for
they were going to mill his palay, and they told him to follow. At 4:00 o'clock their palay was
milled and Mariano Umbrero started for his house at 5:00 o'clock. Mariano Umbrero denied
having been with Danny Costales, when he shot to death Alfonso Urbi.

The accused Alfredo Costales corroborated the testimony of his wife Maria Umoso, that on
November 29, 1980 when Alfonso Urbi was killed he was not in Sta. Teresa, Lallo, for he
was in Aparri, Cagayan on the burial of Benilda Espino, their granddaughter who died on
November 23, 1980 (Exh. 4, Death Certificate) who was buried on November 28, 1980 in the
afternoon, and went back to Sta. Teresa at 5:00 o'clock and arrived at 9:00 o'clock in the
evening. In 1980, the soldiers ordered them to evacuate Sta. Teresa due to the presence of
the NPA. Alfredo Costales denied having been with Danny Costales (no relation) when he
killed Alfonso Urbi on November 29, 1980, at about 2:00 o'clock in the afternoon. (pp. 7, 8
Decision)

The accused Jaime Agluba, corroborated the testimony of his wife Laureta Agluba, who
testified that in 1980 soldiers ordered residents of Sta. Teresa to evacuate due to the
presence of NPA. On November 29, 1980, were not in Sta. Teresa but they were in
Newagac, Gattaran, a distance of about 50 kilometers. (should be 15 kilometers, TSN,
January 17, 1989, pp. 10-11) As is their usual work the accused Jaime Agluba, during
farming time always went to help his sister Estrella Villamin, married to Rufino Villamin. They
left Sta. Teresa on November 23, 1980 and continued living in Newagac, until their return to
Sta. Teresa, Lallo, on December 2, 1980. Jaime Agluba denied having been with Danny
Costales when he killed Alfonso Urbi on November 29,1980." (Appellant's Brief, pp. 3-4)

xxx xxx xxx

The appellants raise the following assignment of errors, to wit:

THAT THE HON. LOWER COURT ERRED IN NOT DISMISSING THE INFORMATION AS
AGAINST THE ACCUSED MARIANO UMBRERO, THERE BEING NO CRIMINAL
COMPLAINT OR PRELIMINARY INVESTIGATION IN THE MUNICIPAL COURT OR WAS
THERE A PRELIMINARY INVESTIGATION IN THE OFFICE OF THE PROVINCIAL
PROSECUTOR, THUS DENYING HIM THE CONSTITUTIONAL RIGHT TO DUE
PROCESS.

II

THE HONORABLE LOWER COURT ERRED IN CONVICTING ALL THE ACCUSED

TO RECLUSION PERPETUA AND THE PAYMENT OF P30,000.00 INDEMNITY. (Rollo, p.
50)
In the first assigned, error, Mariano Umbrero alleges that he was denied his right to due process. He
states that there was no preliminary investigation conducted as his name not included in the criminal
complaint filed with the municipal court which conducted the preliminary investigation.

The allegation is unmeritorious.

We agree with the Solicitor General that:

xxx xxx xxx

. . . [A]lthough appellant Umbrero was not named in the complaint filed by the police with the
municipal trial court for the purpose of conducting a preliminary investigation, the municipal
judge upon being informed that Mariano Umbrero was one of the perpetrators of the killing of
Alfonso Urbi, issued a warrant of arrest and later ordered suspect Umbrero to file his
counter-affidavit. The record shows that appellant Umbrero was given the opportunity to
answer the charges against him during the preliminary investigation. (Appellee's Brief, pp. 6-
7)

Moreover, it has been held in Parades v. Sandiganbayan (G.R. No. 89989, January 28, 1991),
reiterating this Court's ruling in People v. Casiano (1 SCRA 478, [1961]), that:

The absence of a preliminary investigation does not affect the court's jurisdiction over the
case. Nor does it impair the validity of the information or otherwise render it defective. If there
was no preliminary investigation and the defendant, before entering his plea, calls the
attention of the court to the absence of a preliminary investigation, the court, instead of
dismissing the information, should conduct such investigation, order the fiscal to conduct it or
remand the case to the inferior court so that the preliminary investigation may be conducted.
(pp. 7-8)

The appellant never asked for or called the attention of the court before entering his plea, as to the
absence of a preliminary investigation. His right to preliminary investigation, then is deemed waived
as he failed to invoke such right prior to or, at least, at the time of the entry of his plea in the court of
first instance. (People v. Casiano, p. 483, supra) The entry of their plea constituted a waiver of their
right to preliminary investigation and any irregularity that attended it. (See People v. La Caste, 37
SCRA 767, 773 [1971])

Jurisdiction was acquired by the Court over the person of Mariano Umbrero as the accused
appeared at the arraignment and pleaded not guilty to the crime charged. (See Gimenez v.
Nazareno, 160 SCRA 1, 5 [1988])

In the second assigned error, the appellants contend that there was no conspiracy, thus, they should
all be adjudged as innocent. They asserted that mere presence at the scene of the crime does not
by itself indicate the existence of conspiracy. There must be proof of their participation in the crime.

This contention must fail.

It is well-settled rule that conspiracy need not be proved by direct evidence but can be inferred from
the acts of the accused. (People v. Alitao, G.R. No. 74736, February 18, 1991) The appellants'
actuations immediately prior to, during, and right after the shooting of Alfonso Urbi indicate their
common intention to commit the crime. The appellants were not merely present at the scene of the
crime. The prosecution witnesses positively identified the appellants as among the armed men who
arrived at the scene of the crime, shot Alfonso Urbi, and left together after apparently accomplishing
their purpose. (TSN, April 10, 1985, pp. 2, 7; TSN, August 5, 1985, pp. 2, 6; TSN, August 28,1985,
pp. 2-3)

The trial court stated:

xxx xxx xxx

It will be recalled that accused Mariano Umbrero, Jaime Agluba and Alfredo
Costales, alias Pido and others were all armed when they went together to the house of the
victim Alfonso Urbi. They were close to Danny Costales when he (Danny) asked for water
which was not their common purpose. Alfonso Urbi got near to see them. Suddenly he was
shot by Danny Costales. He ran outside the house but was overtaken by Danny Costales
who pumped more shots on him all located on the vital parts of the body, causing his
instantaneous death. They all left together upon accomplishing their purpose. The accused
were all holding their firearms on their sides, while others stood guard and surrounded the
house. The acts performed by all the accused before, during and after the perpetration of the
crime are indicative of a previous criminal design and unity of common purpose. (Rollo, p.
30)

The appellants although not active participants in the killing itself, made no effort to prevent it. In fact,
the appellants even drew the guns that were tucked on their waists when Alfonso Urbi, after being
shot for the first time, tried to run outside of his house. (TSN, August 5,1985, pp. 18-19)

Conspiracy having been established, the appellants as co-conspirators are all guilty on the principle
that the act of one is the act of all. (People v. de Guzman, 162 SCRA 145,153 [1988])

The defense of alibi of the appellants is without merit. The appellants were positively identified by the
prosecution witnesses as the witnesses were only a few meters away from the crime scene. (TSN,
April 10, 1985, p. 3; TSN August 5, 1985, p. 5).

The defense of alibi cannot prevail over the positive identification by the prosecution witnesses of the
appellants (People v. Kyamko, G.R. No. 95263, December 18, 1990). There is nothing in the records
which would show a motive or reason on the part of the witnesses to falsely implicate the accused.
Identification, then, should be given full credit. As there is no showing that the prosecution witnesses
were moved by improper motives, the presumption is that they were not so moved, their testimony
therefore, is entitled to full faith and credit. (People v. Doctolero, G.R. No. L-34386, February 7,1991)

In the instant case, the appellants failed to establish by clear and convincing evidence that they were
at some other place and for such a period of time as to negate their presence at the time when and
the place where the crime was committed. (See People v. Solis, G.R. No. 93629, March 18,
1991 citing People v. Riego, G.R. No. 90256, September 12, 1990)

The persons that the appellants presented to corroborate their alibis were their relatives.

Alfredo Costales and Jaime Agluba could have presented other people, aside from their wives, to
corroborate their testimony that they were at some place other than the scene of the crime. But even
the testimony of Jaime Agluba's wife did not clearly show that Jaime Agluba was not in Sta. Teresa
as she stated that during their stay in Newagac her husband would go to the field and it was only the
wife's belief that her husband was in the field in the afternoon of November 29, 1980. (TSN, January
17, 1989, pp. 16-17) As regards Mariano Umbrero, he could have presented Gregorio Cabulay
(TSN, April 21, 1986, p. 27) aside from Alejandrino Umangay to support his statement. Umangay's
corroboration is not that credible as Umbrero and Umangay had known each other ever since they
were still little boys (TSN, April 21, 1986, p. 31) and Umbrero's relative is Umangay's niece. (TSN,
April 21, 1986, p. 32) It has been ruled that the defense of alibi is weak if it is established mainly by
the accused themselves and their relatives and not by credible persons (See People v. Flores, G. R.
No. 71980, March 18, 1991).

We agree with the finding of the trial court that the qualifying circumstance of treachery is present in
the case at bar.

There is treachery when the offender commits any of the crimes against the person, employing
means, methods, or forms in the execution thereof which tend directly and specially to insure its
execution, without risk to himself arising from the defense which the offended party might make.
(People v. Cempron, G.R. No. 66324, July 6, 1990; People v. Manzanares, 177 SCRA 427, 434,
[1989])

The shooting of Alfonso Urbi was sudden and unexpected. The victim was unarmed, unable to
1awp++i 1

defend himself. He was an unsuspecting victim as the assailants just asked for a drink of water.
(TSN, April 10, 1985, p. 20; TSN, August 5,1985, p. 2) He was totally unprepared to be able to
defend himself.

On the other hand, evident premeditation was not clearly established, contrary to the findings of the
trial court. Although conspiracy existed, it was merely inferred from the acts of the accused in the
perpetration of the crime, the requisites necessary to appreciate evident premeditation have not
been met in this case. (See People v. Repe, 175 SCRA 422, 435 [1989]) The prosecution failed to
prove all of the following: (a) the time when the accused determined to commit the crime; (b) an act
manifestly indicating that the accused had clung to their determination to commit the crime; and (c)
the lapse of sufficient length of time between the determination and execution to allow him to reflect
upon the consequences of his act. (People v. Iligan, G. R. No. 75369, November 26, 1990; People v.
Montejo, 167 SCRA 506, 513 [1988])

Aid of armed men should also not be appreciated in this case, considering that the assailant as well
as the appellants were in conspiracy. (See People v. Candado, 84 SCRA 508, 524 [1978]; People v.
Piring, 63 Phil. 546, 553 [1936])

The fact that Judge Tumacder did not preside at the trial of this case in its entirety, having taken over
only when the second defense witness was to be presented, did not detract from his appreciation of
the prosecution evidence. The full record was available to him. (See People v. Abaya, 185 SCRA
419, 424 [1990])

In view of the foregoing, the appellants were correctly found guilty beyond reasonable doubt of
murder, but without the attendant circumstances of evident premeditation and aid of armed men.
The penalty to be imposed is reclusion perpetua. The indemnity to the heirs of the deceased is
raised to FIFTY THOUSAND PESOS (P50,000.00).

WHEREFORE, the appealed decision is hereby AFFIRMED with the aforesaid MODIFICATION.

SO ORDERED.

Fernan, C.J., Feliciano, Bidin and Davide, Jr., JJ., concur.

 SECOND DIVISION

ISMAEL G. KHAN, JR. and G.R. No. 125296

WENCESLAO L. MALABANAN,
Petitioners, Present:

PUNO, J., Chairperson, SANDOVAL-GUTIERREZ,

- v e r s u s - CORONA,
AZCUNA and
GARCIA, JJ.

OFFICE OF THE OMBUDSMAN,

DEPUTY OMBUDSMAN
(VISAYAS), ROSAURO F.
TORRALBA* and CELESTINO
BANDALA,**
Respondents. Promulgated:

July 20, 2006

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CORONA, J.:

This petition for certiorari under Rule 65 of the Rules of Court

addresses the issue of whether public respondents Deputy
Ombudsman (Visayas) and the Ombudsman have jurisdiction over
petitioners Ismael G. Khan, Jr. and Wenceslao L. Malabanan, former
officers of Philippine Airlines (PAL), for violation of Republic Act No.
(RA) 3019[1] (the Anti-Graft and Corrupt Practices Act).
 In February 1989, private
respondents Rosauro Torralba and Celestino Bandala charged
petitioners before the Deputy Ombudsman (Visayas) for violation of
RA 3019. In their complaint, private respondents accused petitioners
of using their positions in PAL to secure a contract for Synergy
Services Corporation, a corporation engaged in hauling and janitorial
services in which they were shareholders.

Petitioners filed an omnibus motion to dismiss the complaint on

the following grounds: (1) the Ombudsman had no jurisdiction over
them since PAL was a private entity and (2) they were not public
officers, hence, outside the application of RA 3019.
In a resolution dated July 13, 1989,[2] the Deputy
Ombudsman[3] denied petitioners omnibus motion to dismiss.

On petitioners first argument, he ruled that, although PAL was

originally organized as a private corporation, its controlling stock was
later acquired by the government through the Government Service
Insurance System (GSIS).[4] Therefore, it became a government-
owned or controlled corporation (GOCC) as enunciated
in Quimpo v. Tanodbayan.[5]

On the second argument, the Deputy Ombudsman held that

petitioners were public officers within the definition of RA 3019,
Section 2 (b). Under that provision, public officers included elective,
appointive officials and employees, permanent or temporary, whether
in the classified or unclassified or exempt service receiving
compensation, even nominal, from the Government.
The dispositive portion of the Deputy Ombudsmans order read:

WHEREFORE, finding no merit to [petitioners] OMNIBUS MOTION

TO DISMISS, the same is hereby DENIED and petitioners are hereby
ordered to submit their answer within ten (10) days from receipt hereof. [6]

xxx xxx xxx

Petitioners appealed the order to the Ombudsman. There, they

raised the same issues. Treating the appeal as a motion for
reconsideration, the Ombudsman dismissed it on February 22, 1996.
He held that petitioners were officers of a GOCC, hence, he had
jurisdiction over them.[7] He also affirmed the Deputy Ombudsmans
ruling that Quimpo was applicable to petitioners case.

In this petition for certiorari, with prayer for issuance of a temporary

restraining order, petitioners assail the orders dated July 13, 1989
and February 22, 1996 of the Deputy Ombudsman (Visayas) and the
Ombudsman, respectively. They claim that public respondents acted
without jurisdiction and/or grave abuse of discretion in proceeding
with the investigation of the case against them although they were
officers of a private corporation and not public officers."[8]

In support of their petition, petitioners argue that: (1) the

Ombudsmans jurisdiction only covers GOCCs with original
charters and these do not include PAL, a private entity created under
the general corporation law; (2) Quimpo does not apply to the case at
bar and (3) RA 3019 only concerns public officers, thus, they cannot
be investigated or prosecuted under that law.

We find merit in petitioners arguments and hold that public

respondents do not have the authority to prosecute them for violation
of RA 3019.

JURISDICTION OF THE OMBUDSMAN

OVER GOCCS IS CONFINED ONLY
TO THOSE WITH ORIGINAL CHARTERS

The 1987 Constitution states the powers and functions of the Office
of the Ombudsman. Specifically, Article XI, Section 13(2) provides:
Sec. 13. The Office of the Ombudsman shall have the following
powers, functions, and duties:
xxx xxx xxx

(2) Direct, upon complaint or at its own instance, any public official
or employee of the Government, or any subdivision, agency or
instrumentality thereof, as well as any government-owned or
controlled corporation with original charter, to perform and
expedite any act or duty required by law, or to stop, prevent, and
correct any abuse or impropriety in the performance of duties.
(italics supplied)

xxx xxx xxx

Based on the foregoing provision, the Office of the Ombudsman

exercises jurisdiction over public officials/ employees of GOCCs with
original charters. This being so, it can only investigate and prosecute
acts or omissions of the officials/employees of government
corporations. Therefore, although the government later on acquired
the controlling interest in PAL, the fact remains that the latter did
not have an original charter and its officers/employees could not be
investigated and/or prosecuted by the Ombudsman.

In Juco v. National Labor Relations Commission,[9] we ruled that

the phrase with original charter means chartered by special law as
distinguished from corporations organized under the Corporation
Code. PAL, being originally a private corporation seeded by private
capital and created under the general corporation law, does not fall
within the jurisdictional powers of the Ombudsman under Article XI,
Section 13(2) of the Constitution. Consequently, the latter is devoid
of authority to investigate or prosecute petitioners.

QUIMPO NOT APPLICABLE

TO THE CASE AT BAR

Quimpo[10] is not applicable to the case at bar. In that

case, Felicito Quimpo charged in 1984 two officers of PETROPHIL in
the Tanodbayan(now Ombudsman) for violation of RA 3019. These
officers sought the dismissal of the case on the ground that
the Tanodbayan had no jurisdiction over them as officers/employees
of a private company. The Court declared that the Tanodbayan had
jurisdiction over them because PETROPHIL ceased to be a private
entity when Philippine National Oil Corporation (PNOC) acquired its
shares.
 In hindsight, although Quimpo appears, on first impression,
relevant to this case (like PETROPHIL, PALs shares were also
acquired by the government), closer scrutiny reveals that it is not
actually on all fours with the facts here.

In Quimpo, the government acquired PETROPHIL to perform

functions related to government programs and policies on oil.[11] The
fact that the purpose in acquiring PETROPHIL was for it to undertake
governmental functions related to oil was decisive in sustaining
the Tanodbayansjurisdiction over it. This was certainly not the case
with PAL. The records indicate that the government acquired the
controlling interest in the airline as a result of the conversion into equity
of its unpaid loans in GSIS. No governmental functions at all were
involved.

Furthermore, Quimpo was decided prior to the 1987

Constitution. In fact, it was the 1973 Constitution which the Court
relied on in concluding that the Tanodbayan had jurisdiction
over PETROPHILs accused officers. Particularly, the Court cited
Article XIII, Section 6:

SEC. 6. The Batasang Pambansa shall create an office of the

Ombudsman, to be known as the Tanodbayan, which shall receive and
investigate complaints relative to public office, including those in
government-owned or controlled corporations, make appropriate
recommendations, and in case of failure of justice as defined by law, file
and prosecute the corresponding criminal, civil, or administrative case
before the proper court or body. (italics supplied)
 The term government-owned or controlled corporations in the
1973 Constitution was qualified by the 1987 Constitution to refer
only to those with original charters.[12]

PETITIONERS, AS THEN OFFICERS OF

PAL, WERE NOT PUBLIC OFFICERS

Neither the 1987 Constitution nor RA 6670 (The Ombudsman Act of

1989) defines who public officers are. Instead, its varied definitions
and concepts are found in different statutes[13] and
jurisprudence.[14] Usually quoted in our decisions is Mechem, a
recognized authority on the subject. In the 2002 case of Laurel
v. Desierto,[15] the Court extensively quoted his exposition on the term
public officers:
A public office is the right, authority and duty, created and conferred
by law, by which, for a given period, either fixed by law or enduring at the
pleasure of the creating power, an individual is invested with some portion
of the sovereign functions of the government, to be exercised by him for the
benefit of the public. The individual so invested is a public officer.

The characteristics of a public office, according to Mechem, include

the delegation of sovereign functions, its creation by law and not by
contract, an oath, salary, continuance of the position, scope of duties, and
the designation of the position as an office.

xxx xxx xxx

Mechem describes the delegation to the individual of the sovereign

functions of government as [t]he most important characteristic in
determining whether a position is a public office or not.

The most important characteristic which distinguishes an office from

an employment or contract is that the creation and conferring of an office
involves a delegation to the individual of some of the sovereign functions of
government to be exercised by him for the benefit of the public; that some
 portion of the sovereignty of the country, either legislative, executive, or
judicial, attaches, for the time being, to be exercised for the public benefit.
Unless the powers conferred are of this nature, the individual is not a public
officer.[16] (italics supplied)

From the foregoing, it can be reasonably inferred that public

officers are those endowed with the exercise of sovereign executive,
legislative or judicial functions.[17] The explication of the term is also
consistent with the Courts pronouncement in Quimpo that, in the
case of officers/employees in GOCCs, they are deemed public officers
if their corporations are tasked to carry out governmental functions.

In any event, PAL has since reverted to private ownership and

we find it pointless to scrutinize the implications of a legal issue that
technically no longer exists.
WHEREFORE, the petition is hereby GRANTED. Public
respondents Deputy Ombudsman (Visayas) and Office of the
Ombudsman are restrained from proceeding with the investigation or
prosecution of the complaint against petitioners for violation of RA
3019. Accordingly, their assailed orders of July 13, 1989 and
February 22, 1996, respectively, are SET ASIDE and ANNULLED.

SO ORDERED.

RENATO C. CORONA
Associate Justice

WE CONCUR:
 REYNATO S. PUNO
Associate Justice
Chairperson

ANGELINA SANDOVAL-GUTIERREZ ADOLFO S. AZCUNA

Associate Justice Associate Justice

CANCIO C. GARCIA
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been

reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.

REYNATO S. PUNO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the

Division Chairpersons Attestation, I certify that the conclusions in
the above decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
ARTEMIO V. PANGANIBAN
Chief Justice