CRIM LAW CASES WEEK OF AUGUST 12, 2019

EN BANC

G.R. No. L-35748 December 14, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ROMANA SILVESTRE and MARTIN ATIENZA, defendants-appellants.

Teofilo Mendoza for appellants.

Attorney-General Jaranilla for appellee.

VILLA-REAL, J.:

Martin Atienza and Romana Silvestre appeal to this court from the judgment of the Court of First
Instance of Bulacan convicting them upon the information of the crime of arson as follows: The
former as principal by direct participation, sentenced to fourteen years, eight months, and one day
of cadena temporal, in accordance with paragraph 2 of article 550, Penal Code; and the latter as
accomplice, sentenced to six years and one day of presidio mayor; and both are further sentenced
to the accessories of the law, and to pay each of the persons whose houses were destroyed by the
fire, jointly and severally, the amount set forth in the information, with costs.

Counsel appointed by the court to defend the accused- appellants de oficio, after delivering his
argument, prayed for the affirmance of the judgment with reference to the appellant Martin Atienza,
and makes the following assignments of error with reference to Romana Silvestre, to wit:

1. The lower court erred in convincing Romana Silvestre as accomplice of the crime charged
in the information.

2. Finally, the court erred in not acquitting said defendant from the information upon the
ground of insufficient evidence, or at the least, of reasonable doubt.

The following facts were proved at the hearing beyond a reasonable doubt:

Romana Silvestre, wife of Domingo Joaquin by her second marriage, cohabited with her
codefendant Martin Atienza from the month of March, 1930, in the barrio of Masocol, municipality of
Paombong, Province of Bulacan. On May 16, 1930, the complaining husband, Domingo Joaquin,
filed with the justice of the peace for that municipality, a sworn complaint for adultery, supported by
affidavits of Gerardo Cabigao and Castor de la Cruz (Exhibit B). On the same date, May 16, 1930,
the said accused were arrested on a warrant issued by said justice of the peace. On the 20th of the
month, they were released on bail, each giving a personal bond of P6,000. Pending the preliminary
investigation of the case, the two defendants begged the municipal president of Paombong,
Francisco Suerte Felipe, to speak to the complaint, Domingo Joaquin, urging him to withdraw the
complaint, the two accused binding themselves to discontinue cohabitation, and promising not to live
again in the barrio of Masocol; Martin Atienza voluntarily signed the promise (Exhibit A). The
municipal president transmitted the defendants' petition to the complaining husband, lending it his
support. Domingo Joaquin acceded to it, and on May 20, 1930, filed a motion for the dismissal of his
complaint. In consideration of this petition, the justice of the peace of Paombong dismissed the
adultery case commenced against the accused, and cancelled the bonds given by them, with the
costs against the complainant.

The accused then left the barrio of Masocol and went to live in that of Santo Niño, in the same
municipality of Paombong.

About November 20, 1930, the accused Romana Silvestre met her son by her former marriage,
Nicolas de la Cruz, in the barrio of Santo Niño, and under pretext of asking him for some nipa
leaves, followed him home to the village of Masocol, and remained there. The accused, Martin
Atienza, who had continued to cohabit with said Romana Silvestre, followed her and lived in the
home of Nicolas de la Cruz. On the night of November 25, 1930, while Nicolas de la Cruz and his
wife, Antonia de la Cruz, were gathered together with the appellants herein after supper, Martin
Atienza told said couple to take their furniture out of the house because he was going to set fire to it.
Upon being asked by Nicolas and Antonia why he wanted to set fire to the house, he answered that
that was the only way he could be revenged upon the people of Masocol who, he said, had
instigated the charge of adultery against him and his codefendant, Romana Silvestre. As Martin
Atienza was at that time armed with a pistol, no one dared say anything to him, not even Romana
Silvestre, who was about a meter away from her codefendant. Alarmed at what Martin Atienza had
said, the couple left the house at once to communicate with the barrio lieutenant, Buenaventura
Ania, as to what they had just heard Martin Atienza say; but they had hardly gone a hundred arms'
length when they heard cries of "Fire! Fire!" Turning back they saw their home in flames, and ran
back to it; but seeing that the fire had assumed considerable proportions, Antonia took refuge in the
schoolhouse with her 1 year old babe in her arms, while Nicolas went to the home of his parents-in-
law, took up the furniture he had deposited there, and carried it to the schoolhouse. The fire
destroyed about forty-eight houses. Tomas Santiago coming from the barrio artesian well, and
Tomas Gonzalez, teacher at the barrio school of Masocol, and Felipe Clemente, an old man 61
years of age, coming from their homes, to the house on fire, saw Martin Atienza going away from the
house where the fire started, and Romana Silvestre leaving it. lawphil.net

As stated in the beginning, counsel appointed by this court to defend the accused-appellant de
oficio, prays for the affirmance of the judgment appealed from with reference to defendant Martin
Atienza. The facts related heretofore, proved beyond a reasonable doubt at the hearing, justify this
petition of the de oficio counsel, and establish beyond a reasonable doubt said defendant's guilt of
arson as charged, as principal by direct participation.

With respect to the accused-appellant Romana Silvestre, the only evidence of record against her
are: That, being married, she lived adulterously with her codefendant Martin Atienza, a married man;
that both were denounced for adultery by Domingo Joaquin, Romana Silvestre's second husband;
that in view of the petition of the accused, who promised to discontinue their life together, and to
leave the barrio of Masocol, and through the good offices of the municipal president of Paombong,
the complaining husband asked for the dismissal of the complaint; that in pursuance of their
promise, both of the accused went to lived in the barrio of Santo Niño, in the same municipality; that
under pretext for some nipa leaves from her son by her former marriage, Nicolas de la Cruz, who
had gone to the barrio of Santo Niño, Romana Silvestre followed him to his house in the barrio of
Masocol on November 23, 1930, and remained there; that her codefendant, Martin Atienza followed
her, and stayed with his coaccused in the same house; that on the night of November 25, 1930, at
about 8 o'clock, while all were gathered together at home after supper, Martin Atienza expressed his
intention of burning the house as the only means of taking his revenge on the Masocol resident, who
had instigated Domingo Joaquin to file the complaint for adultery against them, which compelled
them to leave the barrio of Masocol; that Romana Silvestre listened to her codefendant's threat
without raising a protest, and did not give the alarm when the latter set fire to the house. Upon the
strength of these facts, the court below found her guilty of arson as accomplice.

Article 14 of the Penal Code, considered in connection with article 13, defines an accomplice to be
one who does not take a direct part in the commission of the act, who does not force or induce other
to commit it, nor cooperates in the commission of the act by another act without which it would not
have been accomplished, yet cooperates in the execution of the act by previous or simultaneous
actions.

Now then, which previous or simultaneous acts complicate Romana Silvestre in the crime of arson
committed by her codefendant Martin Atienza? Is it her silence when he told the spouses, Nicolas de
la Cruz and Antonia de la Cruz, to take away their furniture because he was going to set fire to their
house as the only means of revenging himself on the barrio residents, her passive presence when
Martin Atienza set fire to the house, where there is no evidence of conspiracy or cooperation, and
her failure to give the alarm when the house was already on fire?

The complicity which is penalized requires a certain degree of cooperation, whether moral, through
advice, encouragement, or agreement, or material, through external acts. In the case of the
accused-appellant Romana Silvestre, there is no evidence of moral or material cooperation, and
none of an agreement to commit the crime in question. Her mere presence and silence while they
are simultaneous acts, do not constitute cooperation, for it does not appear that they encouraged or
nerved Martin Atienza to commit the crime of arson; and as for her failure to give the alarm, that
being a subsequent act it does not make her liable as an accomplice.

The trial court found the accused-appellant Martin Atienza guilty of arson, defined and penalized in
article 550, paragraph 2, of the Penal Code, which reads as follows:

ART. 550. The penalty of cadena temporal shall be imposed upon:

xxx xxx xxx

2. Any person who shall set fire to any inhabited house or any building in which people are
accustomed to meet together, without knowing whether or not such building or house was
occupied at the time, or any freight train in motion, if the damage caused in such cases shall
exceed six thousand two hundred and fifty pesetas.

While the defendant indeed knew that besides himself and his codefendant, Romana Silvestre, there
was nobody in De la Cruz's house at the moment of setting fire to it, he cannot be convicted merely
arson less serious than what the trial court sentenced him for, inasmuch as that house was the
means of destroying the others, and he did not know whether these were occupied at the time or
not. If the greater seriousness of setting fire to an inhabited house, when the incendiary does not
know whether there are people in it at the time, depends upon the danger to which the inmates are
exposed, not less serious is the arson committed by setting fire to inhabited houses by means of
another inhabited house which the firebrand knew to be empty at the moment of committing the act,
if he did not know whether there were people or not in the others, inasmuch as the same danger
exists.

With the evidence produced at the trial, the accused-appellant Martin Atienza might have been
convicted of the crime of arson in the most serious degree provided for in article 549 of the Penal
Code, if the information had alleged that at the time of setting fire to the house, the defendant knew
that the other houses were occupied, taking into account that barrio residents are accustomed to
retire at the tolling of the bell for the souls in purgatory, i.e., at 8 o'clock at night.
For all the foregoing considerations, we are of the opinion and so hold, that: (1) Mere passive
presence at the scene of another's crime, mere silence and failure to give the alarm, without
evidence of agreement or conspiracy, do not constitute the cooperation required by article 14 of the
Penal Code for complicity in the commission of the crime witnessed passively, or with regard to
which one has kept silent; and (2) he who desiring to burn the houses in a barrio, without knowing
whether there are people in them or not, sets fire to one known to be vacant at the time, which
results in destroying the rest, commits the crime of arson, defined and penalized in article 550,
paragraph 2, Penal Code.

By virtue wherefore, the judgment appealed from is modified as follows: It is affirmed with reference
to the accused-appellant Martin Atienza, and reversed with reference to the accused-appellant
Romana Silvestre, who is hereby acquitted with
one-half of the costs de oficio. So ordered.

Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez, and Imperial, JJ., concur.

EN BANC

G.R. No. L-31695 November 26, 1929

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
SIA TEB BAN (alias JUAN TONINO, alias JUAN ANTONIO, alias PEDRO ANTONIO), defendant-
appellant.

Teofilo Mina for appellant.

Attorney-General Jaranilla for appellee.

ROMUALDEZ, J.:

Found guilty of qualified theft and habitual delinquency, the defendant was sentenced by the
municipal court of Manila and on appeal, by the Court of First Instance of this City, to two years, four
months, and one day presidio correccional, with costs, and to the additional penalty of twenty-one
years' imprisonment.

He now contends that he is not guilty of the crime with which he is charged.

But it has been proved that he took the watch described in the information without the owner's
consent, having been overtaken a few moments later by a friend of the offended party, who found
the stolen watch on the appellant. It is alleged that animus lucrandi has not been proved. We find it
sufficiently established, as the acts of the accused (one's intention may be gathered from one's
deeds) unequivocally show. 1aw phil.net

It is a fundamental doctrine of law that the act penalized by the law is presumed to be voluntary
unless contrary is shown (art. 1, Penal Code). And from the appellant's felonious acts, freely and
deliberately executed, the moral and legal presumption of a criminal and injurious intent arises
conclusively and indisputably, in the absence of evidence to the contrary (sec. 334, No. 2, Act No.
190).
In view of the fact that we find no merit in this appeal and that the law provides for the imposition of
accessory penalties, the appealed judgment is modified, the appellant being sentenced to the
accessory penalties provided in article 58 of the Penal Code, the said judgment being affirmed in all
other respects, with costs against the appellant. So ordered.

EN BANC

G.R. No. L-5272 March 19, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
AH CHONG, defendant-appellant.

Gibb & Gale, for appellant.

Attorney-General Villamor, for appellee.

CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited to the testimony of the
accused himself, because from the very nature of these facts and from the circumstances
surrounding the incident upon which these proceedings rest, no other evidence as to these facts was
available either to the prosecution or to the defense. We think, however, that, giving the accused the
benefit of the doubt as to the weight of the evidence touching those details of the incident as to
which there can be said to be any doubt, the following statement of the material facts disclose by the
record may be taken to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley,
Rizal Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy
or muchacho. "Officers' quarters No. 27" as a detached house situates some 40 meters from the
nearest building, and in August, 19087, was occupied solely as an officers' mess or club. No one
slept in the house except the two servants, who jointly occupied a small room toward the rear of the
building, the door of which opened upon a narrow porch running along the side of the building, by
which communication was had with the other part of the house. This porch was covered by a heavy
growth of vines for its entire length and height. The door of the room was not furnished with a
permanent bolt or lock, and occupants, as a measure of security, had attached a small hook or catch
on the inside of the door, and were in the habit of reinforcing this somewhat insecure means of
fastening the door by placing against it a chair. In the room there was but one small window, which,
like the door, opened on the porch. Aside from the door and window, there were no other openings
of any kind in the room.

On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night,
was suddenly awakened by some trying to force open the door of the room. He sat up in bed and
called out twice, "Who is there?" He heard no answer and was convinced by the noise at the door
that it was being pushed open by someone bent upon forcing his way into the room. Due to the
heavy growth of vines along the front of the porch, the room was very dark, and the defendant,
fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If you enter the
room, I will kill you." At that moment he was struck just above the knee by the edge of the chair
which had been placed against the door. In the darkness and confusion the defendant thought that
the blow had been inflicted by the person who had forced the door open, whom he supposed to be a
burglar, though in the light of after events, it is probable that the chair was merely thrown back into
the room by the sudden opening of the door against which it rested. Seizing a common kitchen knife
which he kept under his pillow, the defendant struck out wildly at the intruder who, it afterwards
turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps
in a desperately wounded condition, followed by the defendant, who immediately recognized him in
the moonlight. Seeing that Pascual was wounded, he called to his employers who slept in the next
house, No. 28, and ran back to his room to secure bandages to bind up Pascual's wounds.

There had been several robberies in Fort McKinley not long prior to the date of the incident just
described, one of which took place in a house in which the defendant was employed as cook; and as
defendant alleges, it was because of these repeated robberies he kept a knife under his pillow for his
personal protection.

The deceased and the accused, who roomed together and who appear to have on friendly and
amicable terms prior to the fatal incident, had an understanding that when either returned at night,
he should knock at the door and acquiant his companion with his identity. Pascual had left the house
early in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibañez,
servants employed at officers' quarters No. 28, the nearest house to the mess hall. The three
returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No.
28, Pascual going on to his room at No. 27. A few moments after the party separated, Celestino and
Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back
steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called
Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded man.

The defendant then and there admitted that he had stabbed his roommate, but said that he did it
under the impression that Pascual was "a ladron" because he forced open the door of their sleeping
room, despite defendant's warnings.

No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless
it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to
frightened him by forcing his way into the room, refusing to give his name or say who he was, in
order to make Ah Chong believe that he was being attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital,
where he died from the effects of the wound on the following day.

The defendant was charged with the crime of assassination, tried, and found guilty by the trial court
of simple homicide, with extenuating circumstances, and sentenced to six years and one
day presidio mayor, the minimum penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto,
but insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his
lawful right of self-defense.

Article 8 of the Penal Code provides that —

The following are not delinquent and are therefore exempt from criminal liability:

xxx xxx xxx

4 He who acts in defense of his person or rights, provided there are the following attendant
circumstances:

(1) Illegal aggression.

 (2) Reasonable necessity of the means employed to prevent or repel it.

(3) Lack of sufficient provocation on the part of the person defending himself.

Under these provisions we think that there can be no doubt that defendant would be entitle to
complete exception from criminal liability for the death of the victim of his fatal blow, if the intruder
who forced open the door of his room had been in fact a dangerous thief or "ladron," as the
defendant believed him to be. No one, under such circumstances, would doubt the right of the
defendant to resist and repel such an intrusion, and the thief having forced open the door
notwithstanding defendant's thrice-repeated warning to desist, and his threat that he would kill the
intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a
small room, with no means of escape, with the thief advancing upon him despite his warnings
defendant would have been wholly justified in using any available weapon to defend himself from
such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts
and deliver the first blow.

But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the
defendant nor his property nor any of the property under his charge was in real danger at the time
when he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief or
"ladron" as defendant believed he was repelling and resisting, and that there was no real "necessity"
for the use of the knife to defend his person or his property or the property under his charge.

The question then squarely presents it self, whether in this jurisdiction one can be held criminally
responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt
from criminal liability if the facts were as he supposed them to be, but which would constitute the
crime of homicide or assassination if the actor had known the true state of the facts at the time when
he committed the act. To this question we think there can be but one answer, and we hold that under
such circumstances there is no criminal liability, provided always that the alleged ignorance or
mistake or fact was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to
negative a particular intent which under the law is a necessary ingredient of the offense charged
(e.g., in larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the presumption of
intent," and works an acquittal; except in those cases where the circumstances demand a conviction
under the penal provisions touching criminal negligence; and in cases where, under the provisions of
article 1 of the Penal Code one voluntarily committing a crime or misdeamor incurs criminal liability
for any wrongful act committed by him, even though it be different from that which he intended to
commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases
cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32
N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)

The general proposition thus stated hardly admits of discussion, and the only question worthy of
consideration is whether malice or criminal intent is an essential element or ingredient of the crimes
of homicide and assassination as defined and penalized in the Penal Code. It has been said that
since the definitions there given of these as well as most other crimes and offense therein defined,
do not specifically and expressly declare that the acts constituting the crime or offense must be
committed with malice or with criminal intent in order that the actor may be held criminally liable, the
commission of the acts set out in the various definitions subjects the actor to the penalties described
therein, unless it appears that he is exempted from liability under one or other of the express
provisions of article 8 of the code, which treats of exemption. But while it is true that contrary to the
general rule of legislative enactment in the United States, the definitions of crimes and offenses as
set out in the Penal Code rarely contain provisions expressly declaring that malice or criminal intent
is an essential ingredient of the crime, nevertheless, the general provisions of article 1 of the code
clearly indicate that malice, or criminal intent in some form, is an essential requisite of all crimes and
offense therein defined, in the absence of express provisions modifying the general rule, such as are
those touching liability resulting from acts negligently or imprudently committed, and acts done by
one voluntarily committing a crime or misdemeanor, where the act committed is different from that
which he intended to commit. And it is to be observed that even these exceptions are more apparent
than real, for "There is little distinction, except in degree, between a will to do a wrongful thing and
indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies
the place of the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again,
"There is so little difference between a disposition to do a great harm and a disposition to do harm
that one of them may very well be looked upon as the measure of the other. Since, therefore, the
guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and
since this disposition is greater or less in proportion to the harm which is done by the crime, the
consequence is that the guilt of the crime follows the same proportion; it is greater or less according
as the crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been
otherwise stated, the thing done, having proceeded from a corrupt mid, is to be viewed the same
whether the corruption was of one particular form or another.

Article 1 of the Penal Code is as follows:

Crimes or misdemeanors are voluntary acts and ommissions punished by law.

Acts and omissions punished by law are always presumed to be voluntarily unless the
contrary shall appear.

An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even
though the wrongful act committed be different from that which he had intended to commit.

The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in
this article, say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that
without intention (intention to do wrong or criminal intention) there can be no crime; and that the
word "voluntary" implies and includes the words "con malicia," which were expressly set out in the
definition of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as
Pacheco insists, their use in the former code was redundant, being implied and included in the word
"voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said to exempt
from criminal responsibility when the act which was actually intended to be done was in itself a lawful
one, and in the absence of negligence or imprudence, nevertheless admits and recognizes in his
discussion of the provisions of this article of the code that in general without intention there can be
no crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by
Viada are more apparent than real.

Silvela, in discussing the doctrine herein laid down, says:

In fact, it is sufficient to remember the first article, which declared that where there is no
intention there is no crime . . . in order to affirm, without fear of mistake, that under our code
there can be no crime if there is no act, an act which must fall within the sphere of ethics if
there is no moral injury. (Vol. 2, the Criminal Law, folio 169.)

And to the same effect are various decisions of the supreme court of Spain, as, for example in its
sentence of May 31, 1882, in which it made use of the following language:
 It is necessary that this act, in order to constitute a crime, involve all the malice which is
supposed from the operation of the will and an intent to cause the injury which may be the
object of the crime.

And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be
the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in
the parochial church, there can be no crime because of the lack of the necessary element or criminal
intention, which characterizes every action or ommission punished by law; nor is he guilty of criminal
negligence."

And to the same effect in its sentence of December 30, 1896, it made use of the following language:

. . . Considering that the moral element of the crime, that is, intent or malice or their absence
in the commission of an act defined and punished by law as criminal, is not a necessary
question of fact submitted to the exclusive judgment and decision of the trial court.

That the author of the Penal Code deemed criminal intent or malice to be an essential element of the
various crimes and misdemeanors therein defined becomes clear also from an examination of the
provisions of article 568, which are as follows:

He who shall execute through reckless negligence an act that, if done with malice, would
constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum
degree, to prision correccional in its minimum degrees if it shall constitute a less grave crime.

He who in violation of the regulations shall commit a crime through simple imprudence or
negligence shall incur the penalty of arresto mayor in its medium and maximum degrees.

In the application of these penalties the courts shall proceed according to their discretion,
without being subject to the rules prescribed in article 81.

The provisions of this article shall not be applicable if the penalty prescribed for the crime is
equal to or less than those contained in the first paragraph thereof, in which case the courts
shall apply the next one thereto in the degree which they may consider proper.

The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent,"
and the direct inference from its provisions is that the commission of the acts contemplated therein,
in the absence of malice (criminal intent), negligence, and imprudence, does not impose any criminal
liability on the actor.

The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning
the word "willful" as used in English and American statute to designate a form of criminal intent. It
has been said that while the word "willful" sometimes means little more than intentionally or
designedly, yet it is more frequently understood to extent a little further and approximate the idea of
the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case
it was said to mean, as employed in a statute in contemplation, "wantonly" or "causelessly;" in
another, "without reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that
ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other words,
corruptly." In English and the American statutes defining crimes "malice," "malicious," "maliciously,"
and "malice aforethought" are words indicating intent, more purely technical than "willful" or willfully,"
but "the difference between them is not great;" the word "malice" not often being understood to
require general malevolence toward a particular individual, and signifying rather the intent from our
legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)
But even in the absence of express words in a statute, setting out a condition in the definition of a
crime that it be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of
the various modes generally construed to imply a criminal intent, we think that reasoning from
general principles it will always be found that with the rare exceptions hereinafter mentioned, to
constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position with
numerous citations from the decided cases, thus forcely present this doctrine:

In no one thing does criminal jurisprudence differ more from civil than in the rule as to the
intent. In controversies between private parties the quo animo with which a thing was done is
sometimes important, not always; but crime proceeds only from a criminal mind. So that —

There can be no crime, large or small, without an evil mind. In other words, punishment is
the sentence of wickedness, without which it can not be. And neither in philosophical
speculation nor in religious or mortal sentiment would any people in any age allow that a
man should be deemed guilty unless his mind was so. It is therefore a principle of our legal
system, as probably it is of every other, that the essence of an offense is the wrongful intent,
without which it can not exists. We find this doctrine confirmed by —

Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this
subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens
sit rea, "the act itself does not make man guilty unless his intention were so;" Actus me incito
factus non est meus actus, "an act done by me against my will is not my act;" and others of
the like sort. In this, as just said, criminal jurisprudence differs from civil. So also —

Moral science and moral sentiment teach the same thing. "By reference to the intention, we
inculpate or exculpate others or ourselves without any respect to the happiness or misery
actually produced. Let the result of an action be what it may, we hold a man guilty simply on
the ground of intention; or, on the dame ground, we hold him innocent." The calm judgment
of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance
takes the place of justice, every guard around the innocent is cast down. But with the return
of reason comes the public voice that where the mind is pure, he who differs in act from his
neighbors does not offend. And —

In the spontaneous judgment which springs from the nature given by God to man, no one
deems another to deserve punishment for what he did from an upright mind, destitute of
every form of evil. And whenever a person is made to suffer a punishment which the
community deems not his due, so far from its placing an evil mark upon him, it elevates him
to the seat of the martyr. Even infancy itself spontaneously pleads the want of bad intent in
justification of what has the appearance of wrong, with the utmost confidence that the plea, if
its truth is credited, will be accepted as good. Now these facts are only the voice of nature
uttering one of her immutable truths. It is, then, the doctrine of the law, superior to all other
doctrines, because first in nature from which the law itself proceeds, that no man is to be
punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs.
286 to 290.)

Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of
abstract justice result from the adoption of the arbitrary rule that Ignorantia juris non
excusat ("Ignorance of the law excuses no man"), without which justice could not be administered in
our tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the
power of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make
their commission criminal without regard to the intent of the doer. Without discussing these
exceptional cases at length, it is sufficient here to say that the courts have always held that unless
the intention of the lawmaker to make the commission of certain acts criminal without regard to the
intent of the doer is clear and beyond question the statute will not be so construed (cases cited in
Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of the law excuses no man has
been said not to be a real departure from the law's fundamental principle that crime exists only
where the mind is at fault, because "the evil purpose need not be to break the law, and if suffices if it
is simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and
cases cited.)

But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring
mistake in fact to be dealt with otherwise that in strict accord with the principles of abstract justice.
On the contrary, the maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is,
in all cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as
shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the
actor from criminal liability provided always there is no fault or negligence on his part; and as laid
down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear
to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb.,
342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41;
P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to
whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be
determined by the circumstances as they appeared to him at the time when the mistake was made,
and the effect which the surrounding circumstances might reasonably be expected to have on his
mind, in forming the intent, criminal or other wise, upon which he acted.

If, in language not uncommon in the cases, one has reasonable cause to believe the
existence of facts which will justify a killing — or, in terms more nicely in accord with the
principles on which the rule is founded, if without fault or carelessness he does believe them
— he is legally guiltless of the homicide; though he mistook the facts, and so the life of an
innocent person is unfortunately extinguished. In other words, and with reference to the right
of self-defense and the not quite harmonious authorities, it is the doctrine of reason and
sufficiently sustained in adjudication, that notwithstanding some decisions apparently
adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as
they appear to him. If, without fault or carelessness, he is misled concerning them, and
defends himself correctly according to what he thus supposes the facts to be the law will not
punish him though they are in truth otherwise, and he was really no occassion for the
extreme measures. (Bishop's New Criminal Law, sec. 305, and large array of cases there
cited.)

The common illustration in the American and English textbooks of the application of this rule is the
case where a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his
friends in a spirit of mischief, and with leveled pistol demands his money or his life, but is killed by
his friend under the mistaken belief that the attack is a real one, that the pistol leveled at his head is
loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one
will doubt that if the facts were such as the slayer believed them to be he would be innocent of the
commission of any crime and wholly exempt from criminal liability, although if he knew the real state
of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of
homicide or assassination. Under such circumstances, proof of his innocent mistake of the facts
overcomes the presumption of malice or criminal intent, and (since malice or criminal intent is a
necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes
at the same time the presumption established in article 1 of the code, that the "act punished by law"
was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:

If the party killing had reasonable grounds for believing that the person slain had a felonious
design against him, and under that supposition killed him, although it should afterwards
appear that there was no such design, it will not be murder, but it will be either manslaughter
or excusable homicide, according to the degree of caution used and the probable grounds of
such belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's
report of the case, p.7.)

In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:

A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an
outstretched arms and a pistol in his hand, and using violent menaces against his life as he
advances. Having approached near enough in the same attitude, A, who has a club in his
hand, strikes B over the head before or at the instant the pistol is discharged; and of the
wound B dies. It turns out the pistol was loaded with powder only, and that the real design of
B was only to terrify A. Will any reasonable man say that A is more criminal that he would
have been if there had been a bullet in the pistol? Those who hold such doctrine must
require that a man so attacked must, before he strikes the assailant, stop and ascertain how
the pistol is loaded — a doctrine which would entirely take away the essential right of self-
defense. And when it is considered that the jury who try the cause, and not the party killing,
are to judge of the reasonable grounds of his apprehension, no danger can be supposed to
flow from this principle. (Lloyd's Rep., p. 160.)

To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of
which are here set out in full because the facts are somewhat analogous to those in the case at bar.

QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in
company only of his wife, without other light than reflected from the fire, and that the man
with his back to the door was attending to the fire, there suddenly entered a person whom he
did not see or know, who struck him one or two blows, producing a contusion on the
shoulder, because of which he turned, seized the person and took from his the stick with
which he had undoubtedly been struck, and gave the unknown person a blow, knocking him
to the floor, and afterwards striking him another blow on the head, leaving the unknown lying
on the floor, and left the house. It turned out the unknown person was his father-in-law, to
whom he rendered assistance as soon as he learned his identity, and who died in about six
days in consequence of cerebral congestion resulting from the blow. The accused, who
confessed the facts, had always sustained pleasant relations with his father-in-law, whom he
visited during his sickness, demonstrating great grief over the occurrence. Shall he be
considered free from criminal responsibility, as having acted in self-defense, with all the
circumstances related in paragraph 4, article 8, of the Penal Code? The criminal branch of
the Audiencia of Valladolid found that he was an illegal aggressor, without sufficient
provocation, and that there did not exists rational necessity for the employment of the force
used, and in accordance with articles 419 and 87 of the Penal Code condemned him to
twenty months of imprisonment, with accessory penalty and costs. Upon appeal by the
accused, he was acquitted by the supreme court, under the following sentence:
"Considering, from the facts found by the sentence to have been proven, that the accused
was surprised from behind, at night, in his house beside his wife who was nursing her child,
was attacked, struck, and beaten, without being able to distinguish with which they might
have executed their criminal intent, because of the there was no other than fire light in the
room, and considering that in such a situation and when the acts executed demonstrated
that they might endanger his existence, and possibly that of his wife and child, more
 especially because his assailant was unknown, he should have defended himself, and in
doing so with the same stick with which he was attacked, he did not exceed the limits of self-
defense, nor did he use means which were not rationally necessary, particularly because the
instrument with which he killed was the one which he took from his assailant, and was
capable of producing death, and in the darkness of the house and the consteration which
naturally resulted from such strong aggression, it was not given him to known or distinguish
whether there was one or more assailants, nor the arms which they might bear, not that
which they might accomplish, and considering that the lower court did not find from the
accepted facts that there existed rational necessity for the means employed, and that it did
not apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme
court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .

QUESTION XIX. A person returning, at night, to his house, which was situated in a retired
part of the city, upon arriving at a point where there was no light, heard the voice of a man, at
a distance of some 8 paces, saying: "Face down, hand over you money!" because of which,
and almost at the same money, he fired two shots from his pistol, distinguishing immediately
the voice of one of his friends (who had before simulated a different voice) saying, "Oh! they
have killed me," and hastening to his assistance, finding the body lying upon the ground, he
cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been the
victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he
retired from the place. Shall he be declared exempt in toto from responsibility as the author
of this homicide, as having acted in just self-defense under the circumstances defined in
paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not
so find, but only found in favor of the accused two of the requisites of said article, but not that
of the reasonableness of the means employed to repel the attack, and, therefore,
condemned the accused to eight years and one day of prison mayor, etc. The supreme court
acquitted the accused on his appeal from this sentence, holding that the accused was acting
under a justifiable and excusable mistake of fact as to the identity of the person calling to
him, and that under the circumstances, the darkness and remoteness, etc., the means
employed were rational and the shooting justifiable. (Sentence supreme court, March 17,
1885.) (Viada, Vol. I, p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a
large stone thrown against his window — at this, he puts his head out of the window and
inquires what is wanted, and is answered "the delivery of all of his money, otherwise his
house would be burned" — because of which, and observing in an alley adjacent to the mill
four individuals, one of whom addressed him with blasphemy, he fired his pistol at one the
men, who, on the next morning was found dead on the same spot. Shall this man be
declared exempt from criminal responsibility as having acted in just self-defense with all of
the requisites of law? The criminal branch of the requisites of law? The criminal branch of
the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the
requisites to exempt him from criminal responsibility, but not that of reasonable necessity for
the means, employed, and condemned the accused to twelve months of prision
correctional for the homicide committed. Upon appeal, the supreme court acquitted the
condemned, finding that the accused, in firing at the malefactors, who attack his mill at night
in a remote spot by threatening robbery and incendiarism, was acting in just self-defense of
his person, property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.)

A careful examination of the facts as disclosed in the case at bar convinces us that the defendant
Chinaman struck the fatal blow alleged in the information in the firm belief that the intruder who
forced open the door of his sleeping room was a thief, from whose assault he was in imminent peril,
both of his life and of his property and of the property committed to his charge; that in view of all the
circumstances, as they must have presented themselves to the defendant at the time, he acted in
good faith, without malice, or criminal intent, in the belief that he was doing no more than exercising
his legitimate right of self-defense; that had the facts been as he believed them to be he would have
been wholly exempt from criminal liability on account of his act; and that he can not be said to have
been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the
facts, or in the means adopted by him to defend himself from the imminent danger which he believe
threatened his person and his property and the property under his charge.

The judgment of conviction and the sentence imposed by the trial court should be reversed, and the
defendant acquitted of the crime with which he is charged and his bail bond exonerated, with the
costs of both instance de oficio. So ordered.

Johnson Moreland and Elliott, JJ., concur.

Arellano, C.J., and Mapa, J., dissent.

Separate Opinions

TORRES, J., dissenting:

The writer, with due respect to the opinion of the majority of the court, believes that, according to the
merits of the case, the crime of homicide by reckless negligence, defined and punishes in article 568
of the Penal Code, was committed, inasmuch as the victim was wilfully (voluntariomente) killed, and
while the act was done without malice or criminal intent it was, however, executed with real
negligence, for the acts committed by the deceased could not warrant the aggression by the
defendant under the erroneous belief on the part of the accused that the person who assaulted him
was a malefactor; the defendant therefore incurred responsibility in attacking with a knife the person
who was accustomed to enter said room, without any justifiable motive.

By reason of the nature of the crime committed, in the opinion of the undersigned the accused
should be sentenced to the penalty of one year and one month of prision correctional, to suffer the
accessory penalties provided in article 61, and to pay an indemnify of P1,000 to the heirs of the
deceased, with the costs of both instances, thereby reversing the judgment appealed from.

EN BANC

G.R. No. L-47722 July 27, 1943

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.

Antonio Z. Oanis in his own behalf.

Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibañez and Assistant Attorney Torres for appellee.

MORAN, J.:

Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto
Galanta, chief of police of Cabanatuan and corporal of the Philippine Constabulary, respectively,
were, after due trial, found guilty by the lower court of homicide through reckless imprudence and
were sentenced each to an indeterminate penalty of from one year and six months to two years and
two months of prison correccional and to indemnify jointly and severally the heirs of the deceased in
the amount of P1,000. Defendants appealed separately from this judgment.

In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial
Inspector at Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor:
"Information received escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get
him dead or alive." Captain Monsod accordingly called for his first sergeant and asked that he be
given four men. Defendant corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio
Serna and D. Fernandez, upon order of their sergeant, reported at the office of the Provincial
Inspector where they were shown a copy of the above-quoted telegram and a newspaper clipping
containing a picture of Balagtas. They were instructed to arrest Balagtas and, if overpowered, to
follow the instruction contained in the telegram. The same instruction was given to the chief of police
Oanis who was likewise called by the Provincial Inspector. When the chief of police was asked
whether he knew one Irene, a bailarina, he answered that he knew one of loose morals of the same
name. Upon request of the Provincial Inspector, the chief of police tried to locate some of his men to
guide the constabulary soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone of
them he volunteered to go with the party. The Provincial Inspector divided the party into two groups
with defendants Oanis and Galanta, and private Fernandez taking the route to Rizal street leading to
the house where Irene was supposedly living. When this group arrived at Irene's house, Oanis
approached one Brigida Mallare, who was then stripping banana stalks, and asked her where Irene's
room was. Brigida indicated the place and upon further inquiry also said that Irene was sleeping with
her paramour. Brigida trembling, immediately returned to her own room which was very near that
occupied by Irene and her paramour. Defendants Oanis and Galanta then went to the room of Irene,
and an seeing a man sleeping with his back towards the door where they were, simultaneously or
successively fired at him with their .32 and .45 caliber revolvers. Awakened by the gunshots, Irene
saw her paramour already wounded, and looking at the door where the shots came, she saw the
defendants still firing at him. Shocked by the entire scene. Irene fainted; it turned out later that the
person shot and killed was not the notorious criminal Anselmo Balagtas but a peaceful and innocent
citizen named Serapio Tecson, Irene's paramour. The Provincial Inspector, informed of the killing,
repaired to the scene and when he asked as to who killed the deceased. Galanta, referring to
himself and to Oanis, answered: "We two, sir." The corpse was thereafter brought to the provincial
hospital and upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds inflicted by a .32 and
a .45 caliber revolvers were found on Tecson's body which caused his death.

These are the facts as found by the trial court and fully supported by the evidence, particularly by the
testimony of Irene Requinea. Appellants gave, however, a different version of the tragedy. According
to Appellant Galanta, when he and chief of police Oanis arrived at the house, the latter asked Brigida
where Irene's room was. Brigida indicated the place, and upon further inquiry as to the whereabouts
of Anselmo Balagtas, she said that he too was sleeping in the same room. Oanis went to the room
thus indicated and upon opening the curtain covering the door, he said: "If you are Balagtas, stand
up." Tecson, the supposed Balagtas, and Irene woke up and as the former was about to sit up in
bed. Oanis fired at him. Wounded, Tecson leaned towards the door, and Oanis receded and
shouted: "That is Balagtas." Galanta then fired at Tecson.

On the other hand, Oanis testified that after he had opened the curtain covering the door and after
having said, "if you are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas,
while the latter was still lying on bed, and continued firing until he had exhausted his bullets: that it
was only thereafter that he, Oanis, entered the door and upon seeing the supposed Balagtas, who
was then apparently watching and picking up something from the floor, he fired at him.
The trial court refused to believe the appellants. Their testimonies are certainly incredible not only
because they are vitiated by a natural urge to exculpate themselves of the crime, but also because
they are materially contradictory. Oasis averred that be fired at Tecson when the latter was
apparently watching somebody in an attitudes of picking up something from the floor; on the other
hand, Galanta testified that Oasis shot Tecson while the latter was about to sit up in bed immediately
after he was awakened by a noise. Galanta testified that he fired at Tecson, the supposed Balagtas,
when the latter was rushing at him. But Oanis assured that when Galanta shot Tecson, the latter
was still lying on bed. It is apparent from these contradictions that when each of the appellants tries
to exculpate himself of the crime charged, he is at once belied by the other; but their mutual
incriminating averments dovetail with and corroborate substantially, the testimony of Irene Requinea.
It should be recalled that, according to Requinea, Tecson was still sleeping in bed when he was shot
to death by appellants. And this, to a certain extent, is confirmed by both appellants themselves in
their mutual recriminations. According, to Galanta, Oanis shot Tecson when the latter was still in bed
about to sit up just after he was awakened by a noise. And Oanis assured that when Galanta shot
Tecson, the latter was still lying in bed. Thus corroborated, and considering that the trial court had
the opportunity to observe her demeanor on the stand, we believe and so hold that no error was
committed in accepting her testimony and in rejecting the exculpatory pretensions of the two
appellants. Furthermore, a careful examination of Irene's testimony will show not only that her
version of the tragedy is not concocted but that it contains all indicia of veracity. In her cross-
examination, even misleading questions had been put which were unsuccessful, the witness having
stuck to the truth in every detail of the occurrence. Under these circumstances, we do not feel
ourselves justified in disturbing the findings of fact made by the trial court.

The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back
towards the door, Oanis and Galanta, on sight, fired at him simultaneously or successively, believing
him to be Anselmo Balagtas but without having made previously any reasonable inquiry as to his
identity. And the question is whether or not they may, upon such fact, be held responsible for the
death thus caused to Tecson. It is contended that, as appellants acted in innocent mistake of fact in
the honest performance of their official duties, both of them believing that Tecson was Balagtas, they
incur no criminal liability. Sustaining this theory in part, the lower court held and so declared them
guilty of the crime of homicide through reckless imprudence. We are of the opinion, however, that,
under the circumstances of the case, the crime committed by appellants is murder through specially
mitigated by circumstances to be mentioned below.

In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the
case of U.S. v. Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only
when the mistake is committed without fault or carelessness. In the Ah Chong case, defendant
therein after having gone to bed was awakened by someone trying to open the door. He called out
twice, "who is there," but received no answer. Fearing that the intruder was a robber, he leaped from
his bed and called out again., "If you enter the room I will kill you." But at that precise moment, he
was struck by a chair which had been placed against the door and believing that he was then being
attacked, he seized a kitchen knife and struck and fatally wounded the intruder who turned out to be
his room-mate. A common illustration of innocent mistake of fact is the case of a man who was
marked as a footpad at night and in a lonely road held up a friend in a spirit of mischief, and with
leveled, pistol demanded his money or life. He was killed by his friend under the mistaken belief that
the attack was real, that the pistol leveled at his head was loaded and that his life and property were
in imminent danger at the hands of the aggressor. In these instances, there is an innocent mistake of
fact committed without any fault or carelessness because the accused, having no time or opportunity
to make a further inquiry, and being pressed by circumstances to act immediately, had no alternative
but to take the facts as they then appeared to him, and such facts justified his act of killing. In the
instant case, appellants, unlike the accused in the instances cited, found no circumstances
whatsoever which would press them to immediate action. The person in the room being then asleep,
appellants had ample time and opportunity to ascertain his identity without hazard to themselves,
and could even effect a bloodless arrest if any reasonable effort to that end had been made, as the
victim was unarmed, according to Irene Requinea. This, indeed, is the only legitimate course of
action for appellants to follow even if the victim was really Balagtas, as they were instructed not to
kill Balagtas at sight but to arrest him, and to get him dead or alive only if resistance or aggression is
offered by him.

Although an officer in making a lawful arrest is justified in using such force as is reasonably
necessary to secure and detain the offender, overcome his resistance, prevent his escape,
recapture him if he escapes, and protect himself from bodily harm (People vs. Delima, 46 Phil, 738),
yet he is never justified in using unnecessary force or in treating him with wanton violence, or in
resorting to dangerous means when the arrest could be effected otherwise (6 C.J.S., par. 13, p.
612). The doctrine is restated in the new Rules of Court thus: "No unnecessary or unreasonable
force shall be used in making an arrest, and the person arrested shall not be subject to any greater
restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot
claim exemption from criminal liability if he uses unnecessary force or violence in making an arrest
(5 C.J., p. 753; U.S. vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a
notorious criminal, a life-termer, a fugitive from justice and a menace to the peace of the community,
but these facts alone constitute no justification for killing him when in effecting his arrest, he offers no
resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the
principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242).

It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his
right to life which he has by such notoriety already forfeited. We may approve of this standard of
official conduct where the criminal offers resistance or does something which places his captors in
danger of imminent attack. Otherwise we cannot see how, as in the present case, the mere fact of
notoriety can make the life of a criminal a mere trifle in the hands of the officers of the law. Notoriety
rightly supplies a basis for redoubled official alertness and vigilance; it never can justify precipitate
action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an
innocent life and there exist no circumstances whatsoever to warrant action of such character in the
mind of a reasonably prudent man, condemnation — not condonation — should be the rule;
otherwise we should offer a premium to crime in the shelter of official actuation.

The crime committed by appellants is not merely criminal negligence, the killing being intentional and
not accidental. In criminal negligence, the injury caused to another should be unintentional, it being
simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939). In the
words of Viada, "para que se celifique un hecho de imprudencia es preciso que no haya mediado en
el malicia ni intencion alguna de dañar; existiendo esa intencion, debera calificarse el hecho del
delito que ha producido, por mas que no haya sido la intencion del agente el causar un mal de tanta
gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And,
as once held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with
the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16),
and where such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot
be considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to support a plea of
mitigated liability.

As the deceased was killed while asleep, the crime committed is murder with the qualifying
circumstance of alevosia. There is, however, a mitigating circumstance of weight consisting in the
incomplete justifying circumstance defined in article 11, No. 5, of the Revised Penal Code. According
to such legal provision, a person incurs no criminal liability when he acts in the fulfillment of a duty or
in the lawful exercise of a right or office. There are two requisites in order that the circumstance may
be taken as a justifying one: (a) that the offender acted in the performance of a duty or in the lawful
exercise of a right; and (b) that the injury or offense committed be the necessary consequence of the
due performance of such duty or the lawful exercise of such right or office. In the instance case, only
the first requisite is present — appellants have acted in the performance of a duty. The second
requisite is wanting for the crime by them committed is not the necessary consequence of a due
performance of their duty. Their duty was to arrest Balagtas or to get him dead or alive if resistance
is offered by him and they are overpowered. But through impatience or over-anxiety or in their desire
to take no chances, they have exceeded in the fulfillment of such duty by killing the person whom
they believed to be Balagtas without any resistance from him and without making any previous
inquiry as to his identity. According to article 69 of the Revised Penal Code, the penalty lower by one
or two degrees than that prescribed by law shall, in such case, be imposed.

For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder
with the mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate
penalty of from five (5) years of prision correctional to fifteen (15) years of reclusion temporal, with
the accessories of the law, and to pay the heirs of the deceased Serapio Tecson jointly and severally
an indemnity of P2,000, with costs.

Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.

Separate Opinions

PARAS, J., dissenting:

Anselmo Balagtas, a life termer and notorious criminal, managed to escape and flee form Manila to
the provinces. Receiving information to the effect that he was staying with one Irene in Cabanatuan,
Nueva Ecija, the office of the Constabulary in Manila ordered the Provincial Inspector in Cabanatuan
by telegram dispatched on December 25, 1938, to get Balagtas "dead or alive". Among those
assigned to the task of carrying out the said order, were Antonio Z. Oanis, chief of police of
Cabanatuan, and Alberto Galanta, a Constabulary corporal, to whom the telegram received by the
Provincial Inspector and a newspaper picture of Balagtas were shown. Oanis, Galanta and a
Constabulary private, after being told by the Provincial Inspector to gather information about
Balagtas, "to arrest him and, if overpowered, to follow the instructions contained in the telegram,"
proceeded to the place where the house of Irene was located. Upon arriving thereat, Oanis
approached Brigida Mallari, who was then gathering banana stalks in the yard, and inquired for the
room of Irene. After Mallari had pointed out the room, she was asked by Oanis to tell where Irene's
paramour, Balagtas, was, whereupon Mallari answered that he was sleeping with Irene. Upon
reaching the room indicated, Oanis and Galanta, after the former had shouted "Stand up, if you are
Balagtas," started shooting the man who was found by them lying down beside a woman. The man
was thereby killed, but Balagtas was still alive, for it turned out that the person shot by Oanis and
Galanta was one Serapio Tecson.

Consequently, Oanis and Galanta were charged with having committed murder. The Court of First
Instance of Nueva Ecija, however, convicted them only of homicide through reckless imprudence
and sentenced them each to suffer the indeterminate penalty of from 1 year and 6 months to 2 years
and 2 months of prision correctional, to jointly and severally indemnify the heirs of Serapio Tecson in
the amount of P1,000, and to pay the costs. Oanis and Galanta have appealed.

In accomplishing the acts with which the appellants were charged, they undoubtedly followed the
order issued by the Constabulary authorities in Manila requiring the Provincial Inspector in
Cabanatuan to get Balagtas dead or alive, in the honest belief that Serapio Tecson was Anselmo
Balagtas. As the latter became a fugitive criminal, with revolvers in his possession and a record that
made him extremely dangerous and a public terror, the Constabulary authorities were justified in
ordering his arrest, whether dead or alive. In view of said order and the danger faced by the
appellants in carrying it out, they cannot be said to have acted feloniously in shooting the person
honestly believed by them to be the wanted man. Conscious of the fact that Balagtas would rather
kill than be captured, the appellants did not want to take chances and should not be penalized for
such prudence. On the contrary, they should be commended for their bravery and courage bordering
on recklessness because, without knowing or ascertaining whether the wanted man was in fact
asleep in his room, they proceeded thereto without hesitation and thereby exposed their lives to
danger.

The Solicitor-General, however, contends that the appellants were authorized to use their revolvers
only after being overpowered by Balagtas. In the first place, the alleged instruction by the Provincial
Inspector to that effect, was in violation of the express order given by the Constabulary authorities in
Manila and which was shown to the appellants. In the second place, it would indeed be suicidal for
the appellants or, for that matter, any agent of the authority to have waited until they have been
overpowered before trying to put our such a character as Balagtas. In the third place, it is immaterial
whether or not the instruction given by the Provincial Inspector was legitimate and proper, because
the facts exist that the appellants acted in conformity with the express order of superior Constabulary
authorities, the legality or propriety of which is not herein questioned.

The theory of the prosecution has acquired some plausibility, though quite psychological or
sentimental, in view only of the fact that it was not Balagtas who was actually killed, but an "innocent
man . . . while he was deeply asleep." Anybody's heart will be profoundly grieved by the trade, but in
time will be consoled by the realization that the life of Serapio Tecson was not vainly sacrificed, for
the incident will always serve as a loud warning to any one desiring to follow in the footsteps of
Anselmo Balagtas that in due time the duly constituted authorities will, upon proper order, enforce
the summary forfeiture of his life.

In my opinion, therefore, the appellants are not criminally liable if the person killed by them was in
fact Anselmo Balagtas for the reason that they did so in the fulfillment of their duty and in obedience
to an order issued by a superior for some lawful purpose (Revised Penal Code, art. 11, pars. 5 and
6). They also cannot be held criminally liable even if the person killed by them was not Anselmo
Balagtas, but Serapio Tecson, because they did so under an honest mistake of fact not due to
negligence or bad faith. (U.S. vs. Ah Chong, 15 Phil., 488).

It is true that, under article 4 of the Revised Penal Code, criminal liability is incurred by any person
committing a felony although the wrongful act done be different from that which he intended; but said
article is clearly inapplicable since the killing of the person who was believed to be Balagtas was, as
already stated, not wrongful or felonious.

The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-General, is not in point,
inasmuch as the defendant therein, who intended to injure Hilario Lauigan with whom he had a
quarrel, but killed another by mistake, would not be exempted from criminal liability if he actually
injured or killed Hilario Lauigan, there being a malicious design on his part. The other case involved
by the prosecution is U.S. vs. Donoso (3 Phil., 234). This is also not in point, as it appears that the
defendants therein killed one Pedro Almasan after he had already surrendered and allowed himself
to be bound and that the said defendants did not have lawful instructions from superior authorities to
capture Almasan dead or alive.

The appealed judgment should therefore be reversed and the appellants, Antonio Z. Oanis and
Alberto Galanta, acquitted, with costs de oficio.
HONTIVEROS, J., dissenting:

According to the opinion of the majority, it is proper to follow the rule that a notorious criminal "must
be taken by storm without regard to his life which he has, by his conduct, already forfeited,"
whenever said criminal offers resistance or does something which places his captors in danger of
imminent attack. Precisely, the situation which confronted the accused-appellants Antonio Z. Oanis
and Alberto Galanta in the afternoon of December 24, 1938, was very similar to this. It must be
remembered that both officers received instructions to get Balagtas "dead or alive" and according to
the attitude of not only the said appellants but also of Capt. Monsod, constabulary provincial
inspector of Nueva Ecija, it may be assumed that said instructions gave more emphasis to the first
part; namely, to take him dead. It appears in the record that after the shooting, and having been
informed of the case, Capt. Monsod stated that Oanis and Galanta might be decorated for what they
had done. That was when all parties concerned honestly believed that the dead person was
Balagtas himself, a dangerous criminal who had escaped from his guards and was supposedly
armed with a .45 caliber pistol Brigida Mallari, the person whom the appellants met upon arriving at
the house of Irene Requinea, supposed mistress of Balagtas, informed them that said Balagtas was
upstairs. Appellants found there asleep a man closely resembling the wanted criminal. Oanis said: If
you are Balagtas stand up," But the supposed criminal showed his intention to attack the appellants,
a conduct easily explained by the fact that he should have felt offended by the intrusion of persons in
the room where he was peacefully lying down with his mistress. In such predicament, it was nothing
but human on the part of the appellants to employ force and to make use of their weapons in order
to repel the imminent attack by a person who, according to their belief, was Balagtas It was
unfortunate, however that an innocent man was actually killed. But taking into consideration the facts
of the case, it is, according to my humble opinion, proper to apply herein the doctrine laid down in
the case of U.S. vs. Ah Chong (15 Phil., 488). In the instant case we have, as in the case supra, an
innocent mistake of fact committed without any fault or carelessness on the part of the accused, who
having no time to make a further inquiry, had no alternative but to take the facts as they appeared to
them and act immediately.

The decision of the majority, in recognition of the special circumstances of this case which favored
the accused-appellants, arrives at the conclusion that an incomplete justifying circumstance may be
invoked, and therefore, according to Article 69 of the Revised Penal Code, the imposable penalty
should be one which is lower by one or two degrees than that prescribed by law. This incomplete
justifying circumstance is that defined in Article 11, No. 5 of the Revised Penal Code, in favor of "a
person who acts in the fulfillment of a duty or in the lawful exercise of a right or office." I believe that
the application of this circumstance is not proper. Article 69 of the Revised Penal Code provides as
follows:

Art. 69. Penalty to be imposed when the crime committed is not wholly excusable. — A
penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed
is not wholly excusable by reason of the lack of some of the conditions required to justify the
same or to exempt from criminal liability in the several cases mentioned in articles 11 and 12,
provided that the majority of such conditions be present. The courts shall impose the penalty
in the period which may be deemed proper, in view of the number and nature of the
conditions of exemption present or lacking.

This provision has been copied almost verbatim from Article 84 of the old Penal Code of the
Philippines, and which was also taken from Article 87 of the Spanish Penal Code of 1870.
Judge Guillermo Guevara, one of the members of the Committee created by Administrative Order
No. 94 of the Department of Justice for the drafting of the Revised Penal Code, in commenting on
Article 69, said that the justifying circumstances and circumstances exempting from liability which
are the subject matter of this article are the following: self-defense, defense of relatives, defense of
strangers, state of necessity and injury caused by mere accident. Accordingly, justifying
circumstance No. 5 of Article 11 dealing with the fulfillment of a duty or the lawful exercise of a right,
calling or office, cannot be placed within its scope.

The eminent treatiser of criminal law Mr. Groizard, in his commentary of Article 87 of the Spanish
Penal Code of 1870 which is the source of Article 69 of our Code says:

Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad, ni del que obra

violentado por una fuerza inrresistible o impulsado por miedo insuperable de un mal igual o
mayor, o en cumplimiento de un deber, o en el ejercito legitimo de un derecho, oficio o
cargo, o en virtud de obediencia debida, ni del que incurre en alguna omision hallandose
impedido por causa legitima o insuperable, puede tener aplicacion al articulo que
comentamos. Y la razon es obvia. En ninguna de estas execiones hay pluralidad de
requisitos. La irrespondabilidad depende de una sola condicion. Hay o no perturbacion de la
razon; el autor del hecho es o no menor de nueve años; existe o no violencia material o
moral irresistible, etc., etc.; tal es lo que respectivamente hay que examinar y resolver para
declarar la culpabilidad o inculpabilidad. Es, por lo tanto, imposible que acontezca lo que el
texto que va al frente de estas lineas rquiere, para que se imponga al autor del hecho la
penalidad excepcional que establece; esto es, que falten algunos requisitos de los que la ley
exige para eximir de responsabilidad, y que concurran el mayor numero de ellos, toda vez
que, en los casos referidos, la ley no exige multiples condiciones.

It must be taken into account the fact according to Article 69 a penalty lower by one or two degrees
than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the
lack of some of the conditions required by the law to justify the same or exempt from criminal liability.
The word "conditions" should not be confused with the word "requisites". In dealing with justifying
circumstance No. 5 Judge Guevara states: "There are two requisites in order that this circumstance
may be taken into account: (a) That the offender acted in the performance of his duty or in the lawful
exercise of a right; and (b) That the injury or offense committed be the necessary consequence of
the performance of a duty or the lawful exercise of a right or office." It is evident that these two
requisites concur in the present case if we consider the intimate connection between the order given
to the appellant by Capt. Monsod, the showing to them of the telegram from Manila to get Balagtas
who was with a bailarina named Irene, the conduct of said appellants in questioning Brigida Mallari
and giving a warning to the supposed criminal when both found him with Irene, and the statement
made by Capt. Monsod after the shooting.

If appellant Oanis is entitled to a reversal of the decision of the court below, there are more reasons
in favor of the acquittal of appellant Galanta. According to the evidence no bullet from the gun fired
by this accused ever hit Serapio Tecson. Galanta was armed in the afternoon of December 24,
1938, with a .45 caliber revolver (Exhibit L). He so testified and was corroborated by the
unchallenged testimony of his superior officer Sgt. Valeriano Serafica. According to this witness,
since Galanta was made a corporal of the Constabulary he was given, as part of his equipment,
revolver Exhibit L with a serial No. 37121. This gun had been constantly used by Galanta, and,
according to Sgt. Pedro Marasigan, who accompanied said accused when he took it from his trunk in
the barracks on the night of December 24, 1938, upon order of Captain Monsod, it was the same
revolver which was given to the witness with five .45 caliber bullets and one empty shell. Fourteen
unused bullets were also taken from Galanta by Sergeant Serafica, thus completing his regular
equipment of twenty bullets which he had on the morning of December 24, 1938, when Sergeant
Serafica made the usual inspection of the firearms in the possession of the non-commissioned
officers and privates of the constabulary post at Cabanatuan. Galanta stated that he had fired only
one shot and missed. This testimony is corroborated by that of a ballistic expert who testified that
bullets exhibits F and O, — the first being extracted from the head of the deceased, causing wound
No. 3 of autopsy report Exhibit C and the second found at the place of the shooting, — had not been
fired from revolver Exhibit L nor from any other revolver of the constabulary station in Cabanatuan. It
was impossible for the accused Galanta to have substituted his revolver because when Exhibit L
was taken from him nobody in the barracks doubted that the deceased was none other than
Balagtas. Moreover, Exhibit L was not out of order and therefore there was no reason why Galanta
should carry along another gun, according to the natural course of things. On the other hand, aside
from wound No. 3 as above stated, no other wound may be said to have been caused by a .45
caliber revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2 must have been
caused by a .45 caliber revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2
must have been caused by a .45 caliber bullet, but inasmuch as the diameter of the wound's
entrance was only 8 mm., the caliber should be .32 and not .45, because according to the medico-
legal expert who testified in this case, a bullet of a .45 caliber will produce a wound entrance with
either 11 mm. or 12 mm. diameter. All other wounds found by the surgeon who performed the
autopsy appeared to have been caused by bullets of a lesser caliber. In consequence, it can be
stated that no bullet fired by Galanta did ever hit or kill Serapio Tecson and therefore there is no
reason why he should be declared criminally responsible for said death.

EN BANC

G.R. No. L-24978 March 27, 1926

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
FERNANDO DE FERNANDO, defendant-appellant.

W. A. Armstrong for appellant.

Attorney-General Jaranilla for appellee.

VILLA-REAL, J.:

This appeal has been taken by the defendant Fernando de Fernando from the judgment of the Court
of First Instance of Zamboanga, in which he was held guilty of the crime of murder and sentenced to
suffer the penalty of twenty years cadena temporal, to indemnify the heirs of the deceased
Buenventura Paulino in the sum of P1,000 and to pay the costs, by virtue of a complaint filed by the
fiscal charging with the said crime.

As a basis for his appeal the accused assigns the following errors as committed by the trial court: (1)
in holding that the acts committed by the accused constituted the crime for murder; (2) in not holding
that the accused was exempt from criminal liability and in not acquitting him.

At the trial the following facts were proven beyond a reasonable doubt: Before the day of the crime
several Moro prisoners had escaped from the Penal Colony of San Ramon, Zamboanga. The
residents of the barrio of Municahan of the municipality of Zamboanga were alarmed by the
presence of three suspicious looking persons who were prowling around the place. The accused
Fernando de Fernando who, at that time, was a municipal policeman, when passing in front of the
house of one Remigio Delgado, was called by the latter's daughter Paciencia Delgado, who stated
that her father wished to see him. When the policeman came up the house Remigio Delgado
informed him that three unknown and suspicious looking persons, dressed in blue, prowling around
his house. The accused remained in the said house talking with Paciencia Delgado, both being
seated on a bench near the window. While they were thus talking, at about 7 o'clock at night, there
appeared in the dark, at about 4 meters from the stairs, a person dressed in dark clothes, calling
"Nong Miong." At the time the accused nor Paciencia Delgado knew who was thus calling. The
accused inquired what he wanted but instead of answering he continued advancing with bolo in
hand. Upon seeing this Fernando de Fernando took out his revolver and fired a shot in the air. As he
saw that the unknown continued to ascend the staircase he fired at him. The unknown disappeared
and ran to the house of a neighbor Leon Torres, where, after placing upon a table the bolos that he
carried, he fell on the floor and expired. Remigio Delgado, who was in the kitchen and had
recognized the voice of the unknown, on hearing the shots ran into the parlor, took hold of the arm of
the defendant and asked him why he had fired at Buenventura Paulino. Fernando de Fernando only
said "Let me go, that is a cross eyed person" and immediately repaired to the house of
the teniente of the barrio, Santiago Torres, from where he telephoned to the chief of police advising
him of what had happened. When the body was examined it was found that a bullet had penetrated
the base of the neck at the right, imbedding itself in the left side under the skin.

The status of the accused on the night in question was that of an agent of the law, to whom notice
had been given of the presence of suspicious looking persons who might be the Moro prisoners who
had escaped from the Penal Colony of San Ramon. The appearance of a man, unknown to him,
dressed in clothes similar in color to the prisoner's uniform who was calling the owner of the house,
and the silence of Paciencia Delgado, who did not at the time recognize the man, undoubtedly
caused the accused to suspect that the unknown man was one of the three persons that the owner
of the house said were prowling around the place. The suspicion become a reality in his mind when
he saw that the man continued ascending the stairs with a bolo in his hand, not heeding his question
as to who he was. In the midst of these circumstances and believing undoubtedly that he was a
wrongdoer he tried to perform his duty and first fired into the air and then at the alleged intruder. But
it happened that what to him appeared to be wrongdoer was the nephew of the owner of the house
who was carrying three bolos tied together. At that psychological moment when the forces of far and
the sense of duty were at odds, the accused was not able to take full account of the true situation
and the bundle of bolos seemed to him to be only one bolo in the hands of a suspicious character
who intended to enter the house. There is, however, a circumstance that should have made him
suspect that the man was not only a friend but also a relative of the owner of the house from the fact
he called "Nong Miong," which indicated that the owner of the house might be an older relative of the
one calling, or an intimate friend; and in not asking Paciencia Delgado who was it was that was
calling her father with such familiarity, he did not use the ordinary precaution that he should have
used before taking such fatal action.

Taking into consideration the estate of mind of the accused at the time, and the meaning that he
gave to the attitude of the unknown person, in shooting the latter he felt that he was performing his
duty by defending the owners of the house against an unexpected attack, and such act cannot
constitute the crime of murder, but only that of simple homicide. He cannot be held guilty, however,
as principal with malicious intent, because he though at the time that he was justified in acting as he
did, and he is guilty only because he failed to exercise the ordinary diligence which, under the
circumstances, he should have by investigating whether or not the unknown man was really what he
though him to be. In firing the shot, without first exercising reasonable diligence, he acted with
reckless negligence.

The crime committed by the caused, therefore, is homicide through reckless negligence defined and
punished in article 568, in relation with article 404, of the Penal Code, the penalty prescribed by
law arresto mayor in its maximum degree to prision correcional in its minimum degree.

In view of the foregoing and reversing the appealed judgment, the accused is held guilty of the crime
of homicide through reckless negligence, and he is sentenced to suffer one year prision correcional,
to pay the amount of P500 to the heirs of the deceased as an indemnity, with subsidiary
imprisonment in case of insolvency, the costs and with credit of one-half of the preventive
imprisonment already suffered. So ordered.

Avanceña, C. J., Street, Malcom, Villamor, Ostrand, Johns and Romualdez, JJ., concur.

EN BANC

G.R. No. 17933 March 23, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ATANASIO NANQUIL, defendant-appellant.

R. Monserrat for appellant

Attorney-General Villa-Real for appellee

ROMUALDEZ, J.:

A cart and a carabao belonging to Juan Rosas had disappeared. To recover them and find the
wrongdoer he requested the help of the Constabulary. A sergeant and two soldiers were then
commissioned to make investigation. During their investigation these Constabulary men called
Severino Ramiscal, and one of them, surnamed Masiglat, examined him, and not having obtained
from him any clear information, he turned him over to his companion, the other soldier, Atanacio
Nanquil, for examination by the latter. The sergeant who commanded that patrol had remained in
house in a neighborhood, as he was feeling ill. The soldier, Atanasio Nanquil was examining
Severino Ramiscal on a road, the other soldier, Masiglat, being about 20 brazas form them, when all
of a sudden, Masiglat heard a blow and saw Severino Ramiscal fall to the ground — he had been
struck by the soldier, Atanasio Nanquil with his gun, as a consequence of which, Severino Ramiscal
died after a few moments.

Atansio Nanquil was prosecuted for the crime of homicide and sentence by the trial court to fourteen
years, eight months and one day of reclusion temporal, with the accessory penalties, to indemnify
the heirs of the deceased in the sum of one thousand P1,000 and to pay the costs.

From the judgement the defendant, Atanasio Nanquil, has appealed, his counsel alleging that the
court below erred: (a) In giving more credit to the witnesses for the prosecution that those for the
defense; (b) in finding that the deceased was maltreated by the defendant and his companion,
Masiglat, on the night of the commission of the crime; (c) in holding that the crime was simple
homicide and in imposing the aforesaid penalty; (d) in finding that the crime was attended with the
aggravating circumstance of nocturnity; (e) in declaring that it was only at the trial of the case when
the accused alleged having acted in self-defense; and ( f ) in not finding the exempting circumstance
of self-defense to have been proven.

Anent the first error, it should be noted that the appellant admits being the author of the homicide. It
was, therefore, incumbent upon him to establish by sufficient evidence his allegation of self-defense,
with all the elements constituting it. Even supposing that the court below had not attached more
credit to the testimony of the witnesses for the prosecution, even if the evidence both for the
prosecution and the defense had been given equal weight on the controverted point, namely, that of
the self-defense alleged by the appellant, such an allegation cannot be held proven, as it must be
established by positive and sufficient proof. But the fact is that there exist sufficient reasons for
giving more credit to the witnesses for the prosecution than those of the defense, who, being
members of the same organization to which the accused belongs, were naturally interested in his
success in the present case, as most of them have sincerely admitted it in their testimony. And it not
having been proven, that the witnesses for the prosecution had any special interest against the
appellant, after weighing the evidence of both parties, we find no ground for holding that the first
error assigned by the defense was committed.

As to the second error assigned, it is of no importance to determine in this case whether or not the
soldier Masiglat, who is not accused in these proceedings, also maltreated the deceased. The fact is
that the accuse did, as is admitted by him to the extent of having caused the death of the unfortunate
Severino Ramiscal.

Under the third assignment of error, the defense contends that the most that can be said to have
been proven by the evidence of record is the crime of homicide through reckless imprudence. We
find that the accused did not intend to commit so grave an evil as that which resulted, for such an
intention is incompatible with the purpose he had then in view, which was that of obtaining a proof
against the deceased if his declaration was a confession, or of using the deceased as a witness for
the prosecution, if his testimony was a substantial revelation. But whether he had that intention or
not, the fact is that he willfully maltreated the deceased, and such an act of willfully causing an evil
is, as the Attorney-General very properly observes, incompatible with reckless imprudence.

The fourth error is made to consist in the fact of the trial court having taken into account the
aggravating circumstance of nocturnity. We hold with the defense and the prosecution that such
circumstance cannot be taken into account in the present case to aggravate the penalty. To our
mind, the event took place in the nighttime due to the fact that the sergeant who commanded the
patrol of which the appellant formed a part fell sick, and if nocturnity was deliberately sought at all, it
was not in order to maltreat the deceased (which idea was not proven to have been conceived prior
to the deceased's refusal to tell anything about the theft which was under investigation), but rather to
take advantage of the secrecy of the night to render the investigation more effective.

With reference to the fifth error assigned, it is true that the witnesses for the defense have testified
that, shortly after the event, the accused alleged having acted in self-defense, but a serious doubt
arises from the record as to the truth of this statement of said witnesses, which doubt prevents us
from finding this allegation of the defense to have been sufficiently established.

The last assignment of error contains the whole theory of the appellant. From what we have
hereinbefore stated, it is seen that the defendant's allegation of self-defense cannot be held proven.
It was not sufficiently shown that the deceased was the aggressor, which, on the to her hand, is
highly improbable under the circumstances then attending his situation. There not having been, as
we find that there was not, any unlawful aggression, the accused had nothing to defend himself
against; wherefore we need not go into the question whether or not the means employed to repel the
aggression, which had not been made, was reasonably necessary. Neither do we need determine
whether or not the accused had sufficiently provoked the aggression, which was not sufficiently
proven.

We find no sufficient reason from the record for holding the allegation of self-defense to have been
established. We do not find that any aggravating circumstance has concurred in the commission of
the crime, but we do find that there was present the aforesaid mitigating circumstance of the
accused not having had the intention to cause the death of the deceased. For this reason the
penalty of reclusion temporal must be imposed in its minimum degree.

Wherefore, the judgment appealed from is modified, and the appellant sentenced to twelve years
and one day of reclusion temporal, to the accessory penalties provided by article 59 of the Penal
Code, to indemnify the heirs of Severino Ramiscal in the amount of one thousand pesos (P1,000),
and to pay the costs of both instances. So ordered.

Araullo. C.J., Malcolm, Avanceña, Villamor, Ostrand and Johns, JJ., concur.

SECOND DIVISION

G.R. No. 127818 November 11, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
GUILLERMO NEPOMUCENO, JR., accused-appellant.

MELO, J.:

Accused-appellant Guillermo Nepomuceno, Jr. has interposed the instant appeal in regard to
the decision dated November 20, 1996 of the Regional Trial Court of the National Capital
Judicial Region (Manila, Branch 46) which decreed:

Wherefore, the court hereby renders judgment finding the

accused guilty beyond reasonable doubt of the crime of
parricide as defined and penalized under Article 246 of the
Revised Penal Code as amended by Republic Act No. 7659 for
the death of Grace Nepomuceno and hereby sentences him to
suffer imprisonment of Forty (40) years of reclusion
perpetua and to pay the heirs of the deceased the sum of
P50,000.00 with costs against him.

Pursuant to Article 921, paragraph (1) of the Civil Code, the court
declares the accused ineligible to inherit from his wife. The
entire estate should go to his son, Giordan Benitez
Nepomuceno.

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The information against accused-appellant charged:

That on or about May 2, 1994, in the City of Manila, Philippines,

the said accused, did then and there willfully, unlawfully and
feloniously, with intent to kill and with treachery and evident
premeditation, attack, assault and use personal violence upon
the person of one GRACE NEPOMUCENO Y BENITEZ, his wife
with whom he was married in lawful wedlock, by then and there
shooting her with a gun of unknown caliber hitting her on the
left hip, thereby inflicting upon the said GRACE NEPOMUCENO
Y BENITEZ gunshot wound, which was necessarily fatal and
which was the direct and immediate cause of her death
thereafter.

Upon arraignment, accused-appellant, entered a plea of not guilty and trial ensued in due
course. Thereafter, the trial court rendered the judgment of conviction now on appeal.

The prosecution presented seven witnesses, namely, Eden Ontog, SPO2 Rodolfo Rival,
Forensic Chemist Mary Ann Aranas, Medico-Legal Examiner Floresto Arizala, Monserrat De
Leon, Ballistic Expert Isabelo Silvestre, Jr. and Romeo Pabalan.

Eden Ontog declared that on May 2, 1994, she was the housemaid of the spouses Guillermo
Nepomuceno, Jr. and Grace Nepomuceno, having started as such since May 31, 1993. At
around 11 o'clock on the evening of May 2, 1994, accused-appellant, who was drunk, arrived
and went to their bedroom where Eden and her ward Giordan, the one-year old son of the
couple, were sleeping. She was awakened by the loud voices of the spouses who were
arguing. She saw accused-appellant get a gun from a drawer, so she went out of the room
because of fear. After a few moments and while was outside the room, she heard Grace
Nepomuceno say: "Sige patayin mo ako, patayin mo na kami ng anak ko." Then Eden heard a
gunshot. She was so scared that she went out of the house, reaching the door of the house
of Barangay Chairman Congen Leonardo which is 5 meters away. After ten minutes, she saw
accused-appellant coming out the room. He told her to get a taxi so he could bring the
wounded Grace to the hospital. She was left behind in their room to take care of baby
Giordan. She tried to call up Monserrat de Leon, the sister of Grace in Pasig to inform her of
the incident, but she could not get any connection (tsn, July 27, 1994, pp. 4-17; 24-42).

Mary Ann T. Aranas, a chemist of the National Bureau of Investigation Chemistry Division,
declared that she conducted paraffin examination on both hands of the victim and those of
accused-appellant. She found the victim's hands negative of nitrates, but found accused-
appellant's right hand positive thereof. She gave the opinion that in view of the absence of
nitrates on the hands of the victim, it is probable that she did not fire a gun and that accused-
appellant, being positive of nitrates, did really fire a gun (tsn, August 31, 1994, pp. 17, 22; tsn,
July 8, 1996, p. 6).

Dr. Floresto Arizala, Jr., the Medico-Legal Officer of the NBI who conducted a second-post
mortem examination of the victim on May 7, 1994 at the Capitol Memorial Chapels, found that
the victim died due to a gunshot wound, with the slug hitting the left internal iliac artery and
the small intestines and thereafter resting between the uterus and the sacrum of the victim.
He testified that taking into consideration the location of the wound, if the victim were in a
sitting or lying position, the trajectory of the slug was upward coming from right to left; and if
the victim were in a standing position, the muzzle of the gun should have pointed up. The
witness declared that the muzzle of the gun could not have been less that one foot from the
victim. He opined that grappling for possession of the gun was impossible because the
trajectory of the bullet was going upwards and there were no smudges or signs of close
firing. He believed that the victim could have survived if the surgeons had operated
immediately (tsn, July 23, 1996, pp. 15-30).

Monserrat de Leon, sister of the victim, declared that Grace would confide to her that
accused-appellant was jobless and that Grace had problems with the low income of the store
she owned at Zurbaran Mart as compared to her expenses. Accused-appellant would force
sex on Grace especially when he was drunk. Her sister had two miscarriages after their first
child and it was during one of these miscarriages that she saw accused-appellant carrying a
gun in the Mary Chiles Hospital where her sister was confined (tsn, August 12, 1996, pp. 3-
28).

Upon the other hand, the defense presented accused-appellant himself as its lone witness.
His story was quoted by the trial court thus:

Two days before the incident on May 2, 1994 Grace, the

deceased was very much worried about the check (sic) she
issued which was post dated May 2, 1994. She would have no
funds for the checks. She had been nagging him, displaying her
tantrums (nagdadabog) pestering him to do something to be
able to fund the checks.

In the noon time of May 1994, he left her spouse in their store
and went to his mother's house in San Andres Bukid, Manila.
This day was the day after the accused-appellant and his wife,
and in-laws arrived from Batangas to attend a town fiesta.

He left the store to avoid further nagging, tantrums and

pestering of his wife about his inability to produce money to be
able to fund the postdated checks (sic).
At about 11:00 P.M., after dropping at a friend's house, he
decided to go home, thinking his wife has already cooled off.

When his wife opened the door, she greeted the husband: "You
left in the store and you room (roam) around, where you able to
find money." He replied, "where would I get money, do you
expect me to hold up people?" (tsn, October 5, 1994, p. 18)

They had some arguments and Eden Ontog went out of their
bedroom and the arguments continued. There was a point in the
argument when the wife told the accused thus: "Wala akong
silbi, bakit pa ako nag-asawa sa kanya."

Because of these continued pestering and nagging of his wife

he thought of separation. Perhaps it would be better if he should
end his life. He then took a gun from their child's drawer. He sat
on the bed holding that gun, engrossed in his thinking what to
do. The gun was pointed towards the floor of their room.

In that situation, his wife continued with his nagging and

pestering. He just remained silent.

And then Guillermo asked her wife: "How come you do not treat
me as a husband, why do you treat me like this."

It was at this point that Guillermo decided to end his life.

Perhaps seriously, perhaps just to scare his wife to stop all the
pestering and tantrums. Surely not only a few husbands would
thought (sic) as what that Guillermo was thinking then, he felt
desperate. He wanted to finish his life. (p. 24, TSN, October 5,
1994)

It was during that time that their son, Jordan woke up, walked to
the space between them (husband and wife) and Nepomuceno
block his son's way with his right knee. In the process, he
wanted to totally force Grace from taking possession and
control of the gun. He raised his arm holding the gun passing
over the left leg of Grace.

The gun went off.

Aggrieved by the decision of the trial court, accused-appellant assigns the following errors:

THE TRIAL COURT ERRED IN NOT FINDING THE KILLING WAS

ACCIDENTAL, AND THAT THE DECEASED WAS EXEMPT FROM
CRIMINAL LIABILITY.

II

ASSUMING THE ACCUSED IS CRIMINALLY LIABLE, THE TRIAL

COURT ERRED IN NOT FINDING THE KILLING WAS RESULT OF
SIMPLE NEGLIGENCE.

III

THE TRIAL COURT ERRED IN FINDING THAT THE GUILT OF

THE ACCUSED WAS PROVEN BEYOND REASONABLE DOUBT.

(p. 5, Appellant's Brief.)

In support of the first assigned error, accused-appellant contends that he did not have the
least intention of killing his wife. He urges the Court to consider the circumstances attendant
to the killing, which, according to him, negate all inferences and deductions, that he would
kill his wife. First, the deceased was hit in the upper leg, not in any vital organ. If he had the
intention of killing the deceased, he would have shot her at the most vital part of her body.

Secondly, the reaction of the deceased after she was hit was contrary to ordinary and usual
human behavior, if her husband really intended to kill her. The deceased just uttered,
"Masakit Papa", she did not curse nor mouth evil and harsh language against accused-
appellant to show hatred and anger.

Thirdly, if accused-appellant really intended to kill his wife, why did he call a taxi and bring
her to the hospital for immediate medical attention?

Fourthly, why should accused-appellant voluntarily surrender to the police, if the incident
was not accidental?

Accused-appellant claims exemption from criminal liability under Paragraph 4, Article 12 of

the Revised Penal Code because, according to him, the incident occurred when he tried to
prevent his wife from killing herself, and he and his wife grappled for possession of the gun.

After a painstaking review of the evidence and record of this case, the Court finds itself
unable to reach conclusions identical to those put forward by accused-appellant.
First, accused-appellant cannot invoke the benevolent provisions of Paragraph 4, Article 12
of the Revised Penal Code in order to be exempted from criminal liability arising from the
death of his wife, Grace Nepomuceno. Said provision pertinently states:

Art. 12. Circumstances which exempt from criminal liability. The

following are exempt from criminal liability:

xxx xxx xxx

xxx xxx xxx

xxx xxx xxx

4. Any person who, while performing a lawful act with due care,
causes an injury by mere accident without fault or intention of
causing it.

At all events, accident to be exempting, presupposes that the act done is lawful. Here,
however, the act of accused-appellant of drawing a weapon in the course of a quarrel, the
same not being in self-defense, is unlawful — it at least constitutes light threats (Article 285,
par. 1, Revised Penal Code). There is thus no room for the invocation of accident as a ground
for exemption (People vs. Reyta, Jr., 13 CAR (25) 1190; 1195 [1968]).

The gun which accused-appellant took from his child's drawer was not even licensed or
registered in his name as shown by the Certification of the Firearms and Explosives Office of
the Philippine National Police, hence, he could have been charged with illegal possession of
a firearm.

Secondly, accused-appellant's claim that the shooting happened when he tried to prevent his
wife from killing herself and he and his wife grappled for the possession of the gun is belied
by the expert testimony of Dr. Floresto Arizala, Jr. of the NBI who conducted a second post
mortem examination on the cadaver of Grace Nepomuceno. He declared:

Q. Now, is it possible Doctor, considering the

location of the wound, the entrance wound and
the trajectory of the bullet upwards, would you
say Doctor, that both parties, I mean the victim
and the assailant were grappling for the
possession of said gun and it went off
accidentally, is that possible, Mr. Witness?

A. Well, I have to be convinced as to the grappling

between the victim and the assailant, because if
we were to be re-construct of the scenario that the
gun have been fired, the muzzle of the gun could
not have been closer than twelve (12) inches and
considering that the gun was held by a hand, it
farther places the assailant farther from the victim
and farther the victim is, from the assailant, then
the more impossible for the grappling for the gun.
(tsn, July 23, 1996, pp. 19-20).
Thirdly, accused-appellant, testifying on the relative positions of the victim and himself when
the gun discharged, stated:

Q. Please tell the court your relative position and

the victim when the gun actually went off?

A. When I was in the act of trying to dispossess

Grace with that gun and I was trying to let my
right hand pass through my right side but
because Grace was struggling, the butt of the gun
hit a part of her upper leg and it exploded.

Q. So when the gun actually fired, you were

holding that gun, what part of your arm being held
by Grace?

A. Witness pointing the upper forearm and the

lower portion of her upper arm.

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If Grace were holding the upper forearm and lower portion of the upper arm of accused-
appellant when the gun fired, then at least the hand of Grace that held the upper forearm of
appellant would have traces of nitrate considering its nearness to the exploding gun.
However, in the paraffin test conducted by the Forensic Chemistry Division of the National
Bureau of Investigation on Grace Nepomuceno's both hands, no traces of nitrates were
found; while accused-appellant's right hand was positive of nitrates. The absence of nitrates
on the victim's hands is convincing proof that she did not grapple with accused-appellant for
the possession of the gun. It also proves that she was shot at a distance.
The fact that the victim was not shot in the head, or in any vital part of her body does not
negate intent to kill. The Post Mortem Findings on the cadaver of Grace Nepomuceno by Dr.
Arizala shows that the bullet entered "the left thigh, lateral aspect, upper third . . . directed
slight forwards, slightly upwards and from left to right initially involving the skin and
subcutaneous tissue, then taking an intramascular route into the pelvic cavity thru the left
obturator foramen, partially transecting the left internal iliac artery and the small intestines
with the slug lodging just underneath the uterus in front of the sacrum where it was
recovered." The extent of the physical injury inflicted on Grace, as above proved, manifests
intention to extinguish life (People vs. Dawandawan, 184 SCRA 64 [1994]). Moreover, Dr.
Arizala likewise declared that the bullet injured a vital organ of the victim (tsn, July 23, 1996,
p. 9).

The fact that Grace, upon being shot, uttered, "Masakit, Papa" and did not use harsh
language against accused-appellant does not, in any way, negate intent to kill. The utterance
of a victim made immediately after sustaining serious injuries may be considered as pure
emanations of the incident or the incident speaking through the victim (People vs. Morin, 241
SCRA 709; 710 [1995]). Thus, by the word "Papa", Grace was in effect, saying that it was
accused-appellant who shot her.

We agree with the Solicitor General that the act of accused-appellant ordering Eden Ontog to
call a taxi in which he brought the wounded Grace to the hospital is "merely an indication or
act of repentance or contrition on the part of appellant" (Appellee's Brief, p. 71, Rollo.).

Accused-appellant's voluntary surrender is not sufficient ground to exculpate him from

criminal liability. The law does not find unusual the voluntary surrender of criminal offenders;
it merely considers such act as a mitigating circumstance. Non-flight is not proof of
innocence (People vs. Quijada, 259 SCRA 191 [1996]).

Under the second assigned error, accused-appellant claims that even assuming that the
killing was not totally accidental, his acts would constitute only simple negligence. He
asserts that he had established that the gun went off while he was grappling with his wife for
its possession. He was preventing his wife from taking her own life. He might not have
exercised the necessary due care in wrestling for the gun that resulted in the injury of his
wife, but he could be charged only with parricide through simple negligence. So he says.

It has been held that a deliberate intent to do an unlawful act is essentially inconsistent with
the idea of reckless imprudence (People vs. Oanis, et al., 74 Phil 257 (1943); People vs.
Naquil, 43 Phil 232 [1922]). What qualities an act of reckless or simple negligence or
imprudence is the lack of malice or criminal intent in the execution thereof (United States vs.
Maleza, 14 Phil 468, 471 [1909]). Otherwise stated, in criminal negligence, the injury caused to
another should be unintentional, it being simply the incident of another act done without
malice but with lack of foresight, or with carelessness or negligence, and which has harmed
society or an individual (People vs. Castillo, Jr. (275 SCRA 752 [1997]).

The argument of accused-appellant finds no support in the physical evidence. As already

discussed, it the version of grappling for the gun were to be believed, there should have been
nitrates on both hands of Grace. And if it was when accused-appellant placed the barrel of
the gun at the base of his head that Grace grabbed his hand holding the gun and in the
struggle for its possession his hand holding the gun was pushed down so that its butt hit the
upper leg of Grace causing it to fire, then the trajectory of the slug should be downwards,
through the upper thigh of Grace where it entered. Yet, the autopsy report of Dr. Arizala, Jr.
showed the bullet entered the left thigh of Grace directed slightly upwards and from left to
right, taking an intramascular route into the pelvic cavity, instead of a downward direction if
accused-appellant's version were to be believed.

Thus, over and above the testimony of accused-appellant, these physical evidence, the lack
of powder burns or nitrates on the hands of Grace and the trajectory of the bullet that entered
her left thigh being slightly upwards and from left to right instead of downwards, repudiate
accused-appellant's claim of simple negligence. Physical evidence is mute but an eloquent
manifestation of truth and rates high in our hierarchy of trustworthy evidence (People vs.
Uycoqua, 246 SCRA 769 [1995]).

Lastly, accused-appellant, perhaps in desperation, resorts to the shotgun type of argument

that his guilt has not been proved beyond reasonable doubt. The argument is bereft of merit.

The prosecution has sufficiently established the elements of parricide by its evidence. These
elements are: (1) the death of the deceased; (2) that she was killed by the accused; and (3)
that the deceased was a legitimate ascendant or descendant, or the legitimate spouse of the
accused (Article 246, Revised Penal Code; People vs. Embalido, 58 Phil 154 [1933]).

The first and third elements were stipulated during the pre-trial stage of the case, thus:

1. that the victim and the accused are legally married. Said civil
marriage took place on July 5, 1990;

xxx xxx xxx

5. that immediately after the shooting, the accused voluntarily

and bodily carried the victim into a taxicab and proceeded to
UERM Hospital where she died on the operating table." (Pre-Trial
Order of July 11, 1994, Record, p. 6)

The only issue then is whether accused-appellant intentionally killed Grace Nepomuceno, his
legally wedded wife.

In convicting accused-appellant, the trial court relied heavily on the testimony of the
prosecution witnesses. This Court finds no reason to do otherwise. It is a fundamental and
settled rule that the trial court's assessment in regard to the credibility of witnesses is
entitled to the highest degree of respect and will not be disturbed on appeal, as the trial court
was in a better position to examine real evidence as well as to observe the demeanor of the
witnesses (People vs. Dominguez, 217 SCRA 170 [1993]; People vs. Camaddo, 217 SCRA 162
[1993]; People vs. Vallena (244 SCRA 685 [1995]).

The Court agrees with the conclusions of the trial court as they are founded on the dictum
that evidence to be believed must not only proceed from the mouth of a credible witness, but
must be credible in itself — such as the common experience of mankind can approve as
probable under the circumstances. We have no test of the truth of human testimony, except
in conformity with our knowledge, observation, and experience. Whatever is repugnant to
these belongs to the miraculous and is outside of judicial cognizance (People vs. Escalante,
238 SCRA 554 [1994]).

Further, accused-appellant having admitted that he shot his wife, he has the burden of proof
of establishing the presence of any circumstance which may relieve him of responsibility,
and to prove justification he must rely on the strength of his own evidence and not on the
weakness of that of the prosecution, for even if this be weak, it can not be disbelieved after
the accused has admitted the killing (People vs. Bautista, 254 SCRA 621 [1996]).
Unfortunately for accused-appellant, he has miserably failed to discharge this task.

The trial court correctly appreciated the voluntary surrender of accused-appellant as a

mitigating circumstance, this fact having been stipulated by the parties at the pre-trial stage
of this case (Pre-Trial Order, Stipulation No. 10, Record, p. 17).

The penalty for the crime of parricide is reclusion perpetua to death; however, there being
one mitigating circumstance but no aggravating circumstance, the lower of the two
indivisible penalties should be imposed. The penalty cannot be further reduced by one
degree as the Indeterminate Sentence Law does not find application, the penalties involved
being indivisible.

WHEREFORE, the assailed decision convicting accused-appellant GUILLERMO

NEPOMUCENO, JR. of the crime of Parricide is hereby AFFIRMED with the slight modification
that his sentence shall be simplyreclusion perpetua, not "imprisonment of Forty (40) Years
of reclusion perpetua" as stated by the trial court.

SO ORDERED.

Puno and Mendoza, JJ., concur.

Martinez, J., took no part.

N BANC

G.R. No. 132633 October 4, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ARMANDO GEMOYA, and RONILO TIONKO, accused-appellant.

MELO, J.:

Before us on automatic review is a joint decision of the Regional Trial Court of the Eleventh Judicial
Region stationed in Davao City (Branch 15), finding accused-appellants guilty of frustrated homicide
in Criminal Case No. 35,459-96, and sentencing each of them to a prison term of two years, four
months, twenty-one days to eight years and one day. The two accused appellants were also found
guilty of murder in Criminal Case No. 36,460-96, and were sentenced to suffer the death penalty.

The relevant facts are summarized in the People's Brief as follows:

At about 9:00 in the evening of January 27, 1996, the neighborhood of Barrio Malagamot,
Panacan, Davao City was awakened by a commotion. Irene Lantapon was among those who
went out to check what was happening. She saw accused Armando Gemoya and Candelario
Aliazar running towards their house (TSN, June 11, 1996, p. 20, November 5, 1996, p.65).

After about half an hour, Gemoya and Aliazar came back with Ronilo and Rolly Tionko, the
former's uncles and the latter's in-laws. They were armed with pipe, wood and an improvised
 bow and arrow locally called "indian pana." It was like a sling shot with an arrow made of nail
with feathers in the end. Addressing a group of people who were huddled together, Ronilo
Tionko stopped and demanded an explanation for what happened to his brother-in-law. They
replied that nothing happened to him and advised them to go home. Accused ignored them
and proceeded to the house of the Alferezes, which was along the road in front of the school,
when they saw Wilfredo Alferez standing by the road waiting for a taxi (ibid, June 11, 1996,
p. 5, 16, 20-21; November 4, 1996, p. 57; November 5, 1996, pp. 66-67; November 6, 1996,
pp. 79-81).

The quartet rushed to him. Ronilo Tionko beat him with a cylindrical wood, Rolly Tionko with
a pipe of the same size while Aliazar held his arms behind him. Once Gemoya had aimed his
"indian pana," they stepped aside to ensure that they would not be hit. Wilfredo Alferez was
hit directly on his left chest. Slumped to the ground, Edgardo Jimenez rushed to his aid. His
daughter Rosalie, who had just come from school, tried to pull him away. Irene Lantapon
yelled at her to run as Gemoya was about to shoot his "indian pana" again. Before she could
do so, she was hit in her left ear. Then the four scampered away (ibid., June 11, 1996, pp. 6-
7, 21-24; June 13, 1996, pp. 34-36; November 4, 1996, pp. 57-58; November 1996, pp. 66-
67; November 6, 1996, pp. 79-81).

Rosalie Jimenez and Wilfredo Alferez were rushed to the hospital. After minor treatment, she
was declared out of danger. Wilfredo Alferez was not as lucky. He was pronounced dead on
arrival (ibid., June 11, 1996, pp. 8-9; June 13, 1996, pp. 36, 41; November 6, 1996, p. 81).

Two separate Informations were filed against four suspects, namely, the herein two accused-
appellants and two others who have remained at large, to wit:

Criminal Case No. 36,459-96

That on or about January 27, 1996, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the accused, conspiring together and mutually helping
one another, with intent to kill, hit with the use of an "Indian Pana", one Rosalie Jimenez. The
accused performed all the acts of execution which could produce the crime of Homicide, as a
consequence but which did not produce it by reason of a timely medical intervention, a cause
which is independent of the will of the perpetrators.

Contrary to law.

Criminal Case No.36,460-96

That on or about January 27, 1996 in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the accused, conspiring together and mutually helping
one another, with intent to kill, treachery and abuse of superior strength, wilfully, unlawfully
and feloniously attacked, assaulted and hit with an "Indian Pana" one Wilfredo Alferez which
caused his subsequent death.

Contrary to law.

(pp. 7-8. Rollo.)

On May 28, 1996 and August 28, 1996, Armando Gemoya and Ronilo Tionko, respectively, entered
their pleas of "not guilty", and the two criminal cases were thereafter jointly tried, following which,
judgment was rendered disposing:

WHEREFORE, the prosecution having proven the guilt of the accused beyond reasonable
doubt in the two cases, judgment is rendered as follows:

1. Criminal Case No. 36,459-96 — the penalty of two years, four months, twenty-one days to
eight years and one day is imposed on accused Armando Gemoya and Ronilo Tionko for
frustrated homicide with respect to victim Rosalie Jimenez.

2. Criminal Case No. 36,460-96 — the death penalty is imposed on accused Armando
Gemoya and Ronilo Tionko for the murder of Wilfredo Alferez.

(p. 27, Rollo.)

In their individual and separate briefs, the following errors are assigned:

Accused-appellant Ronilo Tionko:

THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT RONILO TIONKO

GUILTY IN CRIMINAL CASE NO. 36,459-96 FOR FRUSTRATED HOMICIDE, WITH
RESPECT TO VICTIM ROSALIE JIMENEZ AND, ALSO, IN FINDING HIM GUILTY IN
CRIMINAL CASE NO. 36,460-96 FOR THE MURDER OF WILFREDO ALFEREZ AS THE
SET OF FACTS OBTAINING IN THE CASE AT BAR IS CAPABLE OF TWO OR MORE
EXPLANATION.

Accused-appellant Armando Gemoya:

I.

THE TRIAL COURT SERIOUSLY ERRED IN CONVICTING GEMOYA OF THE CRIME OF

MURDER.

II.

THE TRIAL COURT SERIOUSLY ERRED IN FAILING TO APPRECIATE THE MITIGATING

CIRCUMSTANCE OF VOLUNTARY SURRENDER IN FAVOR OF GEMOYA.

III.

THE TRIAL COURT SERIOUSLY ERRED IN CONVICTING GEMOYA OF THE CRIME OF

FRUSTRATED HOMICIDE FOR THE WOUNDING OF ROSALIE JIMENEZ.

IV.

THE TRIAL COURT SERIOUSLY ERRED IN IMPOSING THE DEATH PENALTY OF

GEMOYA.
After reviewing the evidence on record we find no compelling reason to depart from the factual
findings of the trial court that accused-appellants, in conspiracy with one another, committed the
crime of murder qualified by abuse of superior strength. In People vs. Patalin (G.R. No. 125539, July
27, 1999) we reiterated the ruling on this matter, thus:

Of primordial consideration in appellate matters is the legal principle that the assessment of
the credibility of witnesses and their testimony is a matter best undertaken by the trial court
because of its unique opportunity to observe the witnesses firsthand and to note their
demeanor, conduct, and attitude under grilling examination. We generally uphold and
respect this appraisal since as an appellate court, we do not deal with live witnesses but only
with the cold pages of a written record.

(p. 15)

Accused-appellant Gemoya claims that the uniform narration of facts by prosecution witnesses is not
supported by the documentary and the expert's testimony of the NBI Medico Legal Officer who
conducted the autopsy examination on the victim Wilfredo Alferez. Dr. Ricardo M. Rodaje affirmed
that he found no other injury on Wilfredo aside from the puncture wound on his chest which was the
sole cause of death (TSN, July 3 1996, p.46).

We are not persuaded by this argument.

It must be borne in mind that accused-appellant Gemoya has not denied having executed the fatal
act, which caused the death of Wilfredo Alferez. He admittedly discharged the weapon ("indian
pana") which hit a vital organ of the victim, causing his instantaneous death. His only lame excuse is
that, to defend himself, he used the sling shot ("indian pana"), which he grabbed from "somebody",
against the victim in the course of a tumultuous affray allegedly instigated by the victim himself.

When an accused admits having killed the victim, the burden of proving his innocence is shifted to
him. We ruled in People vs. Manlulu (231 SCRA 701 [1994]) that "by invoking self-defense, the
accused admit killing Alfaro. The burden of proof is thus shifted to them. Their duty now is to
establish by clear and convincing evidence the lawful justification for the killing." Accused-appellant
Gemoya can no longer invoke the constitutional right of being presumed innocent of the crime
charged. As far as he is concerned, the crime of murder in the case at bar is established once the
prosecution, establishes any of the qualifying circumstances with proof beyond reasonable doubt.
This is because the fact of death and the cause thereof are already established by the admission.
The intent to kill is likewise presumed from the fact of death, unless the accused proves by
convincing evidence that any of the justifying circumstances in Article 11 or any of the exempting
circumstances in Article 12, both of the Revised Penal Code, is present.

As we have earlier observed, however, we find no cogent reason to disregard the trial court's factual
findings on this score. We find nothing upon review of the record, which would convince us that
accused-appellant Gemoya and his cohorts were not the assailants in this case. The theory of self-
defense has not been duly established.

The fact that accused-appellant shot the victims with an "indian pana" cannot be negated by
supposed inconsistencies between the testimony of the eyewitnesses and the findings of the
medico-legal officer who conducted the autopsy examination. It matters not if Wilfredo suffered no
injury other than the fatal puncture wound. His death was caused by that puncture wound, and the
fact that there were four assailants who ganged upon the said victim is incontestable. These
established realities make accused-appellants criminally liable for murder, qualified by abuse of
superior strength.
Abuse of superior strength is considered whenever there is a notorious inequality of forces between
the victim and the aggressor, assessing a superiority of strength notoriously advantageous for the
aggressor which is selected or taken advantage of in the commission of the crime (People vs.
Bongadillo, 234 SCRA 233 [1994]). When four armed assailants, two of whom are accused-
appellants in this case, gang up on one unarmed victim, it can only be said that excessive force was
purposely sought and employed.

Although only accused-appellant Gemoya may have inflicted the fatal wound upon the victim in this
case, accused-appellant Tionko is also liable for the crime of murder since evidently, the concerted
acts of the two accused appellants, and their two other companions, to obtain a common criminal
objective signify conspiracy among them. Ronilo Tionko beat Wilfredo with a cylindrical wooden
cane or "batuta", and Rolly Tionko with a pipe, while Gemoya, after his companions had step aside
to give him a clear shot, released his dart-missile at Wilfredo. A conspiracy exists when two or more
persons come to an agreement concerning the commission of a felony and decide to commit it
(People vs. Taguba, 229 SCRA 188, 1994).

Conspiracy need not be proved by direct evidence of a prior agreement to commit the crime. It may
he deduced either from the mode and manner in which the offense was committed or from the
accused themselves pointing to a community of interest or concerted action (People vs. Gayon, 269
SCRA 587 [1997]). Herein accused-appellants and their companions ganging up upon a single
common victim until one of them is able to inflict the fatal wound is clearly indicative of a common
design to assail and disable their victim-. Conspiracy can be inferred and proved by the totality of the
acts of the accused when said acts point to a joint purpose and design (People vs. Bayrante, 235
SCRA 19 [1994]).

With or without himself inflicting injuries upon victim Wilfredo, accused appellant Ronilo Tionko is
equally liable for the crime of murder in the case at bar as accused appellant Gemoya. He cannot
escape criminal liability under the circumstances even though the autopsy report indicated no other
injuries except the punctured wound on the victim's chest. A conspirator, no matter how minimal his
participation in the crime, is as guilty as the principal perpetrator of the crime (People vs. Alas 274
SCRA 310 [1977]). Holding the victim to render him immobile to enable his companions to
consummate their dastardly act (People vs. Dinglasan, 267 SCRA 29 [1997]) or standing guard or
lending moral support to the actual perpetrator is criminally responsible to the same extent as the
one who inflicted the fatal blow (People vs. Diaz, 271 SCRA 504 [1997]).

As regards their second victim, Rosalie Jimenez, however, we agree with accused-appellants that
the trial court erred in convicting them of frustrated homicide. As correctly pointed out in the People's
brief, the testimony of Jerry Lantapon and Irene Lantapon concurred to the effect that the hitting of
Rosalie was accidental as the second "indian pana" was intended for Wilfredo. The intent to kill
Rosalie which is essential if accused appellants were to be held liable for frustrated homicide is
therefore, absent.

The two accused-appellants herein are liable for the crime resulting from Gemoya's act of releasing
the second "indian pana", which accidentally hit Rosalie. Although Rosalie may not have been their
intended victim, accused-appellants, acting in conspiracy with one another as we have earlier
discussed, are liable for the consequences of their felonious act (see: Paragraph 1, Article 4,
Revised Penal Code). Mistake in the identity of the victim, which may either be (a) "error in
personae" (mistake of the person), or (b) "aberratio ictus" (mistake in the blow), is neither exempting
nor mitigating (People vs. Gona, 54 Phil. 605 [1930]). Accused-appellants, therefore, cannot escape
the criminal liability resulting from the injury suffered by Rosalie.
As for the penalty, even though it appears on record that Rosalie received medical treatment
immediately after her injury, there is no evidence regarding the extent of incapacity said injury
caused her. Accordingly, accused-appellants may only be held liable for the crime of slight physical
injury under Paragraph 2 of Article 266 of the Revised Penal Code, which provides:

ARTICLE 266. Slight physical injuries and maltreatment. — The crime of slight physical
injuries shall be punished:

1. By arresto menor when the offender has inflicted physical injuries which shall incapacitate
the offended party for labor from one to nine days, or shall require medical attention during
the same period.

2. By arresto menor or a fine not exceeding 200 pesos and censure when the offender has
caused physical injuries which do not prevent the offended party from engaging in his
habitual work nor require medical attendance;

3. By arresto menor in its minimum period or a fine not exceeding 50 pesos when the
offender shall ill-treat another by deed without causing injury.

Since there is no showing that victim Rosalie Jimenez was incapacitated from carrying out her
habitual work after the injury, both accused-appellants in this case are sentenced to the penalty
of arresto menor or a fine of P200.00 and censure for the crime of slight physical injury.

As to the imposition of the death penalty upon both accused-appellants in this case, we agree with
the Solicitor General and accused-appellant Gemoya that the trial court seriously erred in not
considering the mitigating circumstance of voluntary surrender in favor of accused-appellant
Gemoya. The trial court likewise erred in imposing the maximum in the range of penalty for murder.

Under Article 248 of the Revised Penal Code, the crime of murder is punished by reclusion
perpetua to death. Where there are no aggravating and no mitigating circumstances attendant in the
commission of the crime the medium penalty shall be imposed. For the crime of murder, the medium
as well as the minimum penalty are the same because the lower range penalty, reclusion perpetua is
an indivisible penalty.

Applying the rule to the case at bar where there is the mitigating circumstance of voluntary surrender
and the absence of any aggravating circumstances other than those already absorbed in the
circumstances which qualified the killing to murder (People vs. Cheng, 279 SCRA 129 [1997l), the
minimum penalty of reclusion perpetua should be imposed.

Finally, as correctly pointed out in the People's brief. when death occurs as a result of a crime, the
heirs of the deceased are entitled to the amount of as P50,000.00 indemnity for the death of the
victim without need of any evidence or proof of damage (People vs. Galladan, G.R. No. 126932,
November 19, 1999; People vs. Española, 271 SCRA 689 [1997]). Thus, civil indemnity in the
amount of P50,000.00 for the death of Wilfredo Alferez will have to be awarded in favor of his heirs.
Accused-appellants being convicted as co-principals for the crime of murder, the two shall be held
solidarily liable for the civil indemnity.

WHEREFORE, accused-appellants are found guilty beyond reasonable doubt of: (a) slight physical
injury in Criminal Case No. 35,459-96 and each sentenced to a determinate prison term of thirty (30)
days of arresto menor; and (b) murder in Criminal Case No. 36,460-96 and accordingly each
sentenced to reclusion perpetua, and ordered to solidarily pay civil indemnity in the amount of Fifty
Thousand Pesos (P50,000.00) to the heirs of Wilfredo Alferez for the latter's death, the two prison
terms to be served concurrently with one another. No special pronouncement is made as to costs.

SO ORDERED.

Davide, Jr., C .J ., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima,
Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

SECOND DIVISION

G.R. No. 195956 March 11, 2015

ABS-CBN CORPORATION, Petitioner,

vs.
FELIPE GOZON, GILBERTO R. DUAVIT, JR., MARISSA L. FLORES, JESSICA A. SORO,
GRACE DELA PENA-REYES, JOHN OLIVER T. MANALASTAS, JOHN DOES AND JANE
DOES, Respondents.

DECISION

LEONEN, J.:

The main issue in this case is whether there is probable cause to charge respondents with
infringement under Republic Act No. 8293, otherwise known as the Intellectual Property Code. The
resolution of this issue requires clarification of the concept of "copyrightable material" in relation to
material that is rebroadcast live as a news story. We are also asked to rule on whether criminal
prosecution for infringement of copyrightable material, such as live rebroadcast, can be negated by
good faith.

ABS-CBN Corporation (ABS-CBN) filed the Petition for Review on Certiorari1 to assail the November
9, 2010 Decision2 and the March 3, 2011 Resolution3 of the Court of Appeals. The Court of Appeals
reinstated the Department of Justice Resolution dated August 1, 2005 that ordered the withdrawal of
the Information finding probable cause for respondents’ violation of Sections 1774 and 2115 of the
Intellectual Property Code.6 Respondents are officers and employees of GMA Network, Inc. (GMA-
7). They are: Felipe Gozon (Gozon), GMA-7 President; Gilberto R. Duavit, Jr. (Duavit, Jr.), Executive
Vice-President; Marissa L. Flores (Flores), Vice-President for New and Public Affairs; Jessica A.
Soho (Soho), Director for News; Grace Dela Peña-Reyes (Dela Peña-Reyes), Head of News and
Public Affairs; John Oliver Manalastas (Manalastas), Program Manager; and others.

The controversy arose from GMA-7’s news coverage on the homecoming of Filipino overseas
worker and hostage victim Angelo dela Cruz on July 22, 2004. As summarized by the Court of
Appeals:

Overseas Filipino worker Angelo dela Cruz was kidnapped by Iraqi militants and as a condition for
his release, a demand was made for the withdrawal of Filipino troops in Iraq. After negotiations, he
was released by his captors and was scheduled to return to the country in the afternoon of 22 July
2004. Occasioned by said homecoming and the public interest it generated, both . . . GMA Network,
Inc. . . . and [petitioner] made their respective broadcasts and coverage of the live event.7

ABS-CBN "conducted live audio-video coverage of and broadcasted the arrival of Angelo dela Cruz
at the Ninoy Aquino International Airport (NAIA) and the subsequent press conference."8 ABS-CBN
allowed Reuters Television Service (Reuters) to air the footages it had taken earlier under a special
embargo agreement.9

ABS-CBN alleged that under the special embargo agreement, any of the footages it took would be
for the "use of Reuter’s international subscribers only, and shall be considered and treated by
Reuters under ‘embargo’ against use by other subscribers in the Philippines. . . . [N]o other
Philippine subscriber of Reuters would be allowed to use ABS-CBN footage without the latter’s
consent."10

GMA-7, to which Gozon, Duavit, Jr., Flores, Soho, Dela Peña-Reyes, and Manalastas are
connected, "assigned and stationed news reporters and technical men at the NAIA for its live
broadcast and non-live news coverage of the arrival of dela Cruz."11 GMA-7 subscribes to both
Reuters and Cable News Network (CNN). It received a live video feed of the coverage of Angelo
dela Cruz’s arrival from Reuters.12

GMA-7 immediately carried the live news feed in its program "Flash Report," together with its live
broadcast.13Allegedly, GMA-7 did not receive any notice or was not aware that Reuters was airing
footages of ABS-CBN.14 GMA-7’s news control room staff saw neither the "No Access Philippines"
notice nor a notice that the video feed was under embargo in favor of ABS-CBN.15

On August 13, 2004, ABS-CBN filed the Complaint for copyright infringement under Sections
17716 and 21117 of the Intellectual Property Code.18

On December 3, 2004, Assistant City Prosecutor Dindo Venturanza issued the Resolution19 finding
probable cause to indict Dela Peña-Reyes and Manalastas.20 Consequently, the Information21 for
violation of the Intellectual Property Code was filed on December 17, 2004. It reads:

That on or about the 22nd of July 2004, in Quezon City, Philippines, the above-named accused,
conspiring together, confederating with and mutually helping each other, being the Head of News
Operations and the Program Manager, respectively, for the News and Public Affairs Department of
GMA Network, Inc., did then and there, willfully, unlawfully and feloniously use and broadcast the
footage of the arrival of Angelo [d]ela Cruz at the Ninoy Aquino International Airport of which ABS-
CBN holds the exclusive ownership and copyright by then and there using, airing, and broadcasting
the said footage in its news program "FLASH REPORT" without first obtaining the consent or
authority of said copyright owner, to their damage and prejudice.

Contrary to law.22

On January 4, 2005, respondents filed the Petition for Review before the Department of Justice.23 In
the Resolution (Gonzalez Resolution) dated August 1, 2005, Department of Justice Secretary Raul
M. Gonzalez (Secretary Gonzalez) ruled in favor of respondents and held that good faith may be
raised as a defense in the case.24 The dispositive portion of the Resolution reads:

WHEREFORE, THE PETITION FOR REVIEW FILED BY GMA-7 in I.S. No. 04-10458 is considered
meritorious and is hereby GRANTED. This case is hereby Dismissed, the resolution of the City
Prosecutor of Quezon City is hereby reversed and the same is ordered to withdraw the information if
any and report action taken to this office within ten (10) days.25 (Emphasis in the original)

Both parties moved for reconsideration of the Gonzalez Resolution.26

Meanwhile, on January 19, 2005, the trial court granted the Motion to Suspend Proceedings filed
earlier by Dela Peña-Reyes and Manalastas.27 The trial court Order reads:

Perusing the motion, the court finds that a petition for review was filed with the Department of Justice
on January 5, 2005 as confirmed by the public prosecutor. Under Section 11 (c), Rule 116 of the
Rules of Criminal Procedure, once a petition for review is filed with the Department of Justice, a
suspension of the criminal proceedings may be allowed by the court.

Accordingly, to allow the Department of Justice the opportunity to act on said petition for review, let
the proceedings on this case be suspended for a period of sixty (60) days counted from January 5,
2005, the date the petition was filed with the Department of Justice. The arraignment of the accused
on February 1, 2005 is accordingly cancelled. Let the arraignment be rescheduled to March 8, 2005
at 8:30 a.m. The accused through counsel are notified in open court.

SO ORDERED.28

On June 29, 2010, Department of Justice Acting Secretary Alberto C. Agra (Secretary Agra) issued
the Resolution (Agra Resolution) that reversed the Gonzalez Resolution and found probable cause
to charge Dela Peña-Reyes and Manalastas for violation of the Intellectual Property
Code.29 Secretary Agra also found probable cause to indict Gozon, Duavit, Jr., Flores, and Soho for
the same violation.30 He ruled that:

[w]hile good faith may be a defense in copyright infringement, the same is a disputable presumption
that must be proven in a full-blown trial. Disputable presumptions may be contradicted and
overcome by other evidence. Thus, a full-blown trial is the proper venue where facts, issues and
laws are evaluated and considered. The very purpose of trial is to allow a party to present evidence
to overcome the disputable presumptions involved.31

The dispositive portion of the Agra Resolution provides:

WHEREFORE, premises considered:

(a) The Motion for Reconsideration filed by appellees ABS-CBN Broadcasting Corporation
(ABS-CBN) of our Resolution promulgated on August 1, 2005 (Resolution No. 364, Series of
2005) and the Petition for Review filed by complainant-appellant ABS-CBN in I.S. No. 04-
10458 on April10, 2006, are GRANTED and the City Prosecutor of Quezon City is hereby
ordered to file the necessary Information for violation of Section 177 and 211 of Republic Act
No. 8293 against GMA-7. Felipe L. Gozon, Gilberto R. Duavit, Jr., Marissa L.Flores, Jessica
A. Soho, Grace Dela Pena-Reyes, John Oliver T. Manalastas[.]

....

SO ORDERED.32 (Emphasis in the original)

Respondents assailed the Agra Resolution through the Petition for Certiorari with prayer for issuance
of a temporary restraining order and/or Writ of Preliminary Injunction on September 2, 2010 before
the Court of Appeals. In the Resolution dated September 13, 2010, the Court of Appeals granted the
temporary restraining order preventing the Department of Justice from enforcing the Agra
Resolution.33
On November 9, 2010, the Court of Appeals rendered the Decision granting the Petition and
reversing and setting aside the Agra Resolution.34 The Court of Appeals held that Secretary Agra
committed errors of jurisdiction in issuing the assailed Resolution. Resolving the issue of copyright
infringement, the Court of Appeals said:

Surely, private respondent has a copyright of its news coverage. Seemingly, for airing said video
feed, petitioner GMA is liable under the provisions of the Intellectual Property Code, which was
enacted purposely to protect copyright owners from infringement. However, it is an admitted fact that
petitioner GMA had only aired a five (5) second footage of the disputed live video feed that it had
received from Reuters and CNN as a subscriber. Indeed, petitioners had no notice of the right of
ownership of private respondent over the same. Without notice of the "No Access Philippines"
restriction of the live video feed, petitioner cannot be faulted for airing a live video feed from Reuters
and CNN.

Verily, as aptly opined by Secretary Gonzalez in his earlier Resolution, the act of petitioners in airing
the five (5) second footage was undeniably attended by good faith and it thus serves to exculpate
them from criminal liability under the Code. While the Intellectual Property Code is a special law, and
thus generally categorized as malum prohibitum, it bears to stress that the provisions of the Code
itself do not ipso facto penalize a person or entity for copyright infringement by the mere fact that
one had used a copyrighted work or material.

Certainly so, in the exercise of one’s moral and economic or copyrights, the very provisions of Part
IV of the Intellectual Property Code provide for the scope and limitations on copyright protection
under Section 184 and in fact permit fair use of copyrighted work under Section 185. With the
aforesaid statutory limitations on one’s economic and copyrights and the allowable instances where
the other persons can legally use a copyrighted work, criminal culpability clearly attaches only when
the infringement had been knowingly and intentionally committed.35 (Emphasis supplied)

The dispositive portion of the Decision reads:

WHEREFORE, the foregoing considered, the instant petition is hereby GRANTED and the assailed
Resolution dated 29 June 2010 REVERSED and SET ASIDE. Accordingly, the earlier Resolution
dated 1 August 2005, which ordered the withdrawal of the Information filed, if any, against the
petitioners for violation of Sections 177 and 211 of the Intellectual Property Code, is hereby
REINSTATED. No costs.

SO ORDERED.36 (Emphasis in the original)

ABS-CBN’s Motion for Reconsideration was denied.37 It then filed its Petition for Review before this
court assailing the Decision and Resolution of the Court of Appeals.38

The issues for this court’s consideration are:

First, whether Secretary Agra committed errors of jurisdiction in the Resolution dated June 29, 2010
and, therefore, whether a petition for certiorari was the proper remedy in assailing that Resolution;

Second, whether news footage is copyrightable under the law;

Third, whether there was fair use of the broadcast material;

Fourth, whether lack of knowledge that a material is copyrighted is a defense against copyright
infringement;

Fifth, whether good faith is a defense in a criminal prosecution for violation of the Intellectual
Property Code; and

Lastly, whether the Court of Appeals was correct in overturning Secretary Agra’s finding of probable
cause.

The trial court granted respondents’ Motion to Suspend Proceedings and deferred respondents Dela
Peña-Reyes and Manalastas’ arraignment for 60 days in view of the Petition for Review filed before
the Department of Justice.

Rule 116, Section 11 (c) of the Rules of Criminal Procedure allows

the suspension of the accused’s arraignment in certain circumstances only:

SEC. 11. Suspension of arraignment.–Upon motion by the proper party, the arraignment shall be
suspended in the following cases:

(a) The accused appears to be suffering from an unsound mental condition which effectively
renders him unable to fully understand the charge against him and to plead intelligently
thereto. In such case, the court shall order his mental examination and, if necessary, his
confinement for such purpose;

(b) There exists a prejudicial question; and

(c) A petition for review of the resolution of the prosecutor is pending at either the
Department of Justice, or the Office of the President; provided, that the period of suspension
shall not exceed sixty (60) days counted from the filing of the petition with the reviewing
office. (12a) (Emphasis supplied)

In Samson v. Daway,39 this court acknowledged the applicability of Rule 116, Section (c) in a criminal
prosecution for infringement under the Intellectual Property Code. However, this court emphasized
the limits of the order of deferment under the Rule:

While the pendency of a petition for review is a ground for suspension of the arraignment, the . . .
provision limits the deferment of the arraignment to a period of 60 days reckoned from the filing of
the petition with the reviewing office. It follows, therefore, that after the expiration of said period, the
trial court is bound to arraign the accused or to deny the motion to defer arraignment.40

We clarify that the suspension of the arraignment should always be within the limits allowed by law.
In Crespo v. Judge Mogul,41 this court outlined the effects of filing an information before the trial
court, which includes initiating a criminal action and giving this court "authority to hear and determine
the case":42

The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima
facie case exists warranting the prosecution of the accused is terminated upon the filing of the
information in the proper court. In turn, as above stated, the filing of said information sets in motion
the criminal action against the accused in Court. Should the fiscal find it proper to conduct a
reinvestigation of the case, at such stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for
appropriate action. While it is true that the fiscal has the quasi judicial discretion to determine
whether or not a criminal case should be filed in court or not, once the case had already been
brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter
should be addressed for the consideration of the Court, the only qualification is that the action of the
Court must not impair the substantial rights of the accused or the right of the People to due process
of law.

Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the
fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the
Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the
trial on the merits proceed for the proper determination of the case.

However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon
the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state
prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does
not believe that there is a basis for prosecution nor can the fiscal be expected to handle the
prosecution of the case thereby defying the superior order of the Secretary of Justice. The answer is
simple. The role of the fiscal or prosecutor as We all know is to see that justice is done and not
necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of his
opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the
prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether
the accused should be convicted or acquitted. The fiscal should not shirk from the responsibility of
appearing for the People of the Philippines even under such circumstances much less should he
abandon the prosecution of the case leaving it to the hands of a private prosecutor for then the entire
proceedings will be null and void. The least that the fiscal should do is to continue to appear for the
prosecution although he may turn over the presentation of the evidence to the private prosecutor but
still under his direction and control.

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any
disposition of the case as to its dismissal or the conviction or acquittal of the accused rests in the
sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution
of criminal cases even while the case is already in Court he cannot impose his opinion on the trial
court. The Court is the best and sole judge on what to do with the case before it. The determination
of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by
the fiscal should be addressed to the Court who has the option to grant or deny the same. It does
not matter if this is done before or after the arraignment of the accused or that the motion was filed
after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of
the investigation.43 (Emphasis supplied, citations omitted)

The doctrine in Crespo was reiterated in Mayor Balindong v. Court of Appeals,44 where this court
reminded the Department of Justice Secretary to refrain from entertaining petitions for review when
the case is already pending with this court:

[I]n order to avoid a situation where the opinion of the Secretary of Justice who reviewed the action
of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as
practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal,
when the complaint or information has already been filed in the Court. The matter should be left
entirely for the determination of the Court.45
The trial court should have proceeded with respondents Dela Peña-Reyes and Manalastas’
arraignment after the 60-day period from the filing of the Petition for Review before the Department
of Justice on March 8, 2005. It was only on September 13, 2010 that the temporary restraining order
was issued by the Court of Appeals. The trial court erred when it did not act on the criminal case
during the interim period. It had full control and direction of the case. As Judge Mogul reasoned in
denying the motion to dismiss in Crespo, failure to proceed with the arraignment "disregards the
requirements of due process [and] erodes the Court’s independence and integrity."46

II

According to ABS-CBN, the Court of Appeals erred in finding that: a motion for reconsideration was
not necessary before a petition for certiorari could be filed; the Department of Justice Secretary
committed errors of jurisdiction since the Agra Resolution was issued within its authority and in
accordance with settled laws and jurisprudence; and respondents were not liable for copyright
infringement.

In its assailed Decision, the Court of Appeals found that respondents committed a procedural error
when they failed to file a motion for reconsideration before filing the Petition for Certiorari. However,
the Court of Appeals held that a motion for reconsideration was unnecessary since the Agra
Resolution was a patent nullity and it would have been useless under the circumstances: Given that
a reading of the assailed Resolution and the instant records readily reveals errors of jurisdiction on
the part of respondent Secretary, direct judicial recourse is warranted under the circumstances.
Aside from the fact that said Resolution is a patent nullity having been issued in grave abuse of
discretion amounting to lack or excess of jurisdiction, the filing of a motion for reconsideration is
evidently useless on account of the fact that the issues and arguments before this Court have
already been duly raised and accordingly delved into by respondent Secretary in his disposition of
the petition a quo.47 (Emphasis in the original)

In Elma v. Jacobi,48 this court ruled that a petition for certiorari under Rule 65 of the Rules of Court is
proper when assailing adverse resolutions of the Department of Justice stemming from the
determination of probable cause.49However, grave abuse of discretion must be alleged.50

In Sanrio Company Limited v. Lim,51 this court stressed the prosecutor’s role in determining probable
cause. Judicial review will only lie when it is shown that the prosecutor acted with grave abuse of
discretion amounting to lack or excess of jurisdiction:

A prosecutor alone determines the sufficiency of evidence that will establish probable cause
justifying the filing of a criminal information against the respondent. By way of exception, however,
judicial review is allowed where respondent has clearly established that the prosecutor committed
grave abuse of discretion. Otherwise stated, such review is appropriate only when the prosecutor
has exercised his discretion in an arbitrary, capricious, whimsical or despotic manner by reason of
passion or personal hostility, patent and gross enough to amount to an evasion of a positive duty or
virtual refusal to perform a duty enjoined by law.52 (Citations omitted)

Grave abuse of discretion refers to:

such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The
abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility and must be so patent and gross as to amount to
an evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in
contemplation of law.53
Resorting to certiorari requires that there be there be "no appeal, or any plain, speedy, and adequate
remedy in the ordinary course of law[,]"54 such as a motion for reconsideration. Generally, "a motion
for reconsideration is a condition sine qua non before a petition for certiorari may lie, its purpose
being to grant an opportunity for the [tribunal or officer] to correct any error attributed to it by a re-
examination of the legal and factual circumstances of the case."55 However, exceptions to the rule
exist:

(a) where the order is a patent nullity, as where the Court a quo had no jurisdiction; (b) where the
questions raised in the certiorari proceeding have been duly raised and passed upon by the lower
court, or are the same as those raised and passed upon in the lower court; (c) where there is an
urgent necessity for the resolution of the question and any further delay would prejudice the interests
of the Government or of the petitioner or the subject matter of the action is perishable; (d) where,
under the circumstances, a motion for reconsideration would be useless; (e) where petitioner was
deprived of due process and there is extreme urgency for relief; (f) where, in a criminal case, relief
from an order of arrest is urgent and the granting of such relief by the trial Court is improbable; (g)
where the proceedings in the lower court are a nullity for lack of due process; (h) where the
proceedings was ex parte or in which the petitioner had no opportunity to object; and (i) where the
issue raised is one purely of law or where public interest is involved.56(Emphasis in the original,
citations omitted)

As argued by respondents, "[a] second motion for reconsideration would have been useless and
futile since the D[epartment] [of] J[ustice] had already passed upon the same issues twice."57 Equally
pressing under the circumstances was the need to resolve the matter, as the Information’s filing
would lead to respondents’ imminent arrest.58

Moreover, Department of Justice Department Circular No. 70 dated July 3, 2000, or the 2000 NPS
Rules on Appeal, provides that no second motion for reconsideration of the Department of Justice
Secretary’s resolution shall be entertained:

SECTION 13. Motion for reconsideration. The aggrieved party may file a motion for reconsideration
within a non-extendible period of ten (10) days from receipt of the resolution on appeal, furnishing
the adverse party and the Prosecution Office concerned with copies thereof and submitting proof of
such service. No second or further motion for reconsideration shall be entertained.

The Agra Resolution was the result of respondents’ Motion for Reconsideration assailing the
Gonzalez Resolution. To file a motion for reconsideration of the Agra Resolution would be
superfluous. Respondents were, therefore, correct in filing the Petition for Certiorari of the Agra
Resolution before the Court of Appeals.

III

The Court of Appeals ruled that Secretary Agra committed errors of jurisdiction, which then required
the grant of the writ of certiorari:

So viewed, by ordering the filing of information without proof that probable cause exists to charge
petitioners with a crime, respondent Secretary clearly committed an error of jurisdiction thus
warranting the issuance of the writ of certiorari. Surely, probable cause cannot be had when the very
provisions of the statute exculpates criminal liability in cases classified as fair use of copyrighted
materials. The fact that they admittedly used the Reuters live video feed is not, as a matter of
course, tantamount to copyright infringement that would justify the filing of an information against the
petitioners.59
Error of jurisdiction must be distinguished from error of judgment:

A line must be drawn between errors of judgment and errors of jurisdiction. An error of judgment is
one which the court may commit in the exercise of its jurisdiction. An error of jurisdiction renders an
order or judgment void or voidable. Errors of jurisdiction are reviewable on certiorari; errors of
judgment, only by appeal.60

In People v. Hon. Sandiganbayan61:

An error of judgment is one which the court may commit in the exercise of its jurisdiction. An error of
jurisdictionis one where the act complained of was issued by the court without or in excess of
jurisdiction, or with grave abuse of discretion, which is tantamount to lack or in excess of jurisdiction
and which error is correctible only by the extraordinary writ of certiorari. Certiorari will not be issued
to cure errors of the trial court in its appreciation of the evidence of the parties, or its conclusions
anchored on the said findings and its conclusions of law.62 (Emphasis supplied)

This court has adopted a deferential attitude towards review of the executive’s finding of probable
cause.63 This is based "not only upon the respect for the investigatory and [prosecutorial] powers
granted by the Constitution to the executive department but upon practicality as well."64 Review of the
Department of Justice Secretary’s decision or resolution will be allowed only when grave abuse of
discretion is alleged:

The full discretionary authority to determine probable cause in a preliminary investigation to

ascertain sufficient ground for the filing of information rests with the executive branch. Hence, judicial
review of the resolution of the Secretary of Justice is limited to a determination whether there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction. Courts cannot
substitute the executive branch’s judgment.

....

It is only where the decision of the Justice Secretary is tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction that the Court of Appeals may take cognizance of the
case in a petition for certiorari under Rule 65 of the Revised Rules of Civil Procedure. The Court of
Appeals decision may then be appealed to this Court by way of a petition for review on
certiorari.65 (Emphasis supplied, citations omitted)

In this case, it must be shown that Secretary Agra exceeded his authority when he reversed the
findings of Secretary Gonzalez. This court must determine whether there is probable cause to file an
information for copyright infringement under the Intellectual Property Code.

IV

Probable cause pertains to "such facts as are sufficient to engender a well-founded belief that a
crime has been committed and that respondent is probably guilty thereof."66 Preliminary investigation
is the inquiry or proceeding to determine whether there is probable cause.67

In Webb v. De Leon,68 this court ruled that determination of probable cause during preliminary
investigation does not require trial-like evaluation of evidence since existence of probable cause
does not equate to guilt:
It ought to be emphasized that in determining probable cause, the average man weighs facts and
circumstances without resorting to the calibrations of our technical rules of evidence of which his
knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men
have an abundance.

....

. . . A finding of probable cause merely binds over the suspect to stand trial. It is not a
pronouncement of guilt.69

In Reyes v. Pearlbank Securities, Inc.,70 finding probable cause is not equivalent to finding with moral
certainty that the accused committed the crime:

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime
has been committed by the suspects. It need not be based on clear and convincing evidence of guilt,
not on evidence establishing guilt beyond reasonable doubt, and definitely not on evidence
establishing absolute certainty of guilt. In determining probable cause, the average man weighs facts
and circumstances without resorting to the calibrations of the rules of evidence of which he has no
technical knowledge. He relies on common sense.71

During preliminary investigation, a public prosecutor does not adjudicate on the parties’ rights,
obligations, or liabilities.72

In the recent case of Estrada v. Office of the Ombudsman, et al.,73 we reiterated Webb on the
determination of probable cause during preliminary investigation and traced the history of probable
cause as borrowed from American jurisprudence:

The purpose in determining probable cause is to make sure that the courts are not clogged with
weak cases that will only be dismissed, as well as to spare a person from the travails of a needless
prosecution.

....

. . . In the United States, from where we borrowed the concept of probable cause, the prevailing
definition of probable cause is this:

In dealing with probable cause, however, as the very name implies, we deal with probabilities. These
are not technical; they are the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly
correlative to what must be proved.

"The substance of all the definitions" of probable cause "is a reasonable ground for belief of guilt."
McCarthy v. De Armit, 99 Pa. St. 63, 69, quoted with approval in the Carroll opinion. 267 U. S. at
161. And this "means less than evidence which would justify condemnation" or conviction, as
Marshall, C. J., said for the Court more than a century ago in Locke v. United States, 7 Cranch 339,
348. Since Marshall’s time, at any rate, it has come to mean more than bare suspicion: Probable
cause exists where "the facts and circumstances within their [the officers’] knowledge and of which
they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of
reasonable caution in the belief that" an offense has been or is being committed. Carroll v. United
States, 267 U. S. 132, 162.
These long-prevailing standards seek to safeguard citizens from rash and unreasonable
interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway
for enforcing the law in the community’s protection. Because many situations which confront officers
in the course of executing their duties are more or less ambiguous, room must be allowed for some
mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading
sensibly to their conclusions of probability. The rule of probable cause is a practical, non technical
conception affording the best compromise that has been found for accommodating these often
opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be
to leave law-abiding citizens at the mercy of the officers’ whim or caprice.

In the Philippines, there are four instances in the Revised Rules of Criminal Procedure where
probable cause is needed to be established:

(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine whether there
is sufficient ground to engender a well-founded belief that a crime has been committed and
the respondent is probably guilty thereof, and should be held for trial. A preliminary
investigation is required before the filing of a complaint or information for an offense where
the penalty prescribed by law is at least four years, two months and one day without regard
to the fine;

(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant of arrest or
a commitment order, if the accused has already been arrested, shall be issued and that there
is a necessity of placing the respondent under immediate custody in order not to frustrate the
ends of justice;

(3) In Section 5(b) of Rule 113:By a peace officer or a private person making a warrantless
arrest when an offense has just been committed, and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and

(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant shall be
issued, and only upon probable cause in connection with one specific offense to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the things to be seized which may be anywhere in the Philippines.

In all these instances, the evidence necessary to establish probable cause is based only on the
likelihood, or probability, of guilt.74

Estrada also highlighted that a "[p]reliminary investigation is not part of the criminal action. It is
merely preparatory and may even be disposed of in certain situations."75

To determine whether there is probable cause that respondents committed copyright infringement, a
review of the elements of the crime, including the existing facts, is required.

ABS-CBN claims that news footage is subject to copyright and prohibited use of copyrighted material
is punishable under the Intellectual Property Code. It argues that the new footage is not a
"newsworthy event" but "merely an account of the arrival of Angelo dela Cruz in the Philippines —
the latter being the newsworthy event":76
To be clear, it is the event itself or the arrival of Angelo dela Cruz which is not copyrightable because
that is the newsworthy event. However, any footage created from the event itself, in this case the
arrival of Angelo dela Cruz, are intellectual creations which are copyrightable. Thus, the footage
created by ABS-CBN during the arrival of Angelo dela Cruz, which includes the statements of Dindo
Amparo, are copyrightable and protected by the laws on copyright.77

On the other hand, respondents argue that ABS-CBN’s news footage of Angelo dela Cruz’s arrival is
not copyrightable or subject to protection:

Certainly, the arrival of Angelo [d]ela Cruz, which aroused public attention and the consciousness of
the Filipino people with regard to their countrymen, OFWs working in foreign countries and how the
Philippine government responds to the issues concerning them, is "news". There is no ingenuity or
inventiveness added in the said news footage. The video footage of this "news" is not copyrightable
by any legal standard as facts of everyday life depicted in the news and items of press information is
part of the public domain.78 (Emphasis in the original)

The news footage is copyrightable.

The Intellectual Property Code is clear about the rights afforded to authors of various kinds of work.
Under the Code, "works are protected by the sole fact of their creation, irrespective of their mode or
form of expression, as well as of their content, quality and purpose."79 These include "[a]udiovisual
works and cinematographic works and works produced by a process analogous to cinematography
or any process for making audiovisual recordings."80

Contrary to the old copyright law,81 the Intellectual Property Code does not require registration of the
work to fully recover in an infringement suit. Nevertheless, both copyright laws provide that copyright
for a work is acquired by an intellectual creator from the moment of creation.82

It is true that under Section 175 of the Intellectual Property Code, "news of the day and other
miscellaneous facts having the character of mere items of press information" are considered
unprotected subject matter.83 However, the Code does not state that expression of the news of the
day, particularly when it underwent a creative process, is not entitled to protection.

An idea or event must be distinguished from the expression of that idea or event. An idea has been
likened to a ghost in that it "must be spoken to a little before it will explain itself."84 It is a concept that
has eluded exact legal definition.85To get a better grasp of the idea/expression dichotomy, the
etymology of the term "idea" is traced:

The word "idea" is derived from a Greek term, meaning "a form, the look or appearance of a thing as
opposed to its reality, from idein, to see." In the Timaeus, Plato saw ideas as eternal paradigms,
independent objects to which the divine demiurge looks as patterns in forming the world. This was
later modified to the religious conception of ideas as the thoughts of God. "It is not a very long step
to extend the term ‘idea’ to cover patterns, blueprints, or plans in anyone's mind, not only in God’s."
The word entered the French and English vernacular in the 1600s and possessed two meanings.
The first was the Platonic meaning of a perfect exemplar or paradigm. The second, which probably
has its origin with Descartes, is of a mental concept or image or, more broadly, any object of the
mind when it is active. Objects of thought may exist independently. The sun exists (probably) before
and after you think of it. But it is also possible to think of things that have never existed, such as a
unicorn or Pegasus. John Locke defined ideas very comprehensively, to include: all objects of the
mind. Language was a way of translating the invisible, hidden ideas that make up a person’s
thoughts into the external, perceptible world of articulate sounds and visible written symbols that
others can understand.86 (Citations omitted) There is no one legal definition of "idea" in this
jurisdiction. The term "idea" is mentioned only once in the Intellectual Property Code.87 In Joaquin, Jr.
v. Drilon,88 a television format (i.e., a dating show format) is not copyrightable under Section 2 of
Presidential Decree No. 49;89 it is a mere concept:

P.D. No. 49, §2, in enumerating what are subject to copyright, refers to finished works and not to
concepts. The copyright does not extend to an idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form in which it is described, explained,
illustrated, or embodied in such work. Thus, the new INTELLECTUAL PROPERTY CODE OF THE
PHILIPPINES provides:

SEC. 175. Unprotected Subject Matter.—Notwithstanding the provisions of Sections 172 and 173,
no protection shall extend, under this law, to any idea, procedure, system, method or operation,
concept, principle, discovery or mere data as such, even if they are expressed, explained, illustrated
or embodied in a work; news of the day and other miscellaneous facts having the character of mere
items of press information; or any official text of a legislative, administrative or legal nature, as well
as any official translation thereof.

What then is the subject matter of petitioners’ copyright? This Court is of the opinion that petitioner
BJPI’s copyright covers audio-visual recordings of each episode of Rhoda and Me, as falling within
the class of works mentioned in P.D. 49, §2(M),to wit:

Cinematographic works and works produced by a process analogous to cinematography or any

process for making audio-visual recordings;

The copyright does not extend to the general concept or format of its dating game show.
Accordingly, by the very nature of the subject of petitioner BJPI’s copyright, the investigating
prosecutor should have the opportunity to compare the videotapes of the two shows.

Mere description by words of the general format of the two dating game shows is insufficient; the
presentation of the master videotape in evidence was indispensable to the determination of the
existence of probable cause. As aptly observed by respondent Secretary of Justice:

A television show includes more than mere words can describe because it involves a whole
spectrum of visuals and effects, video and audio, such that no similarity or dissimilarity may be found
by merely describing the general copyright/format of both dating game shows.90 (Emphasis supplied,
citations omitted)

Ideas can be either abstract or concrete.91 It is the concrete ideas that are generally referred to as
expression:

The words "abstract" and "concrete" arise in many cases dealing with the idea/expression
distinction. The Nichols court, for example, found that the defendant’s film did not infringe the
plaintiff’s play because it was "too generalized an abstraction from what plaintiff wrote . . . only a part
of her ideas." In Eichel v. Marcin, the court said that authors may exploit facts, experiences, field of
thought, and general ideas found in another’s work, "provided they do not substantially copy a
concrete form, in which the circumstances and ideas have been developed, arranged, and put into
shape." Judge Hand, in National Comics Publications, Inc. v. Fawcett Publications, Inc. said that "no
one infringes, unless he descends so far into what is concrete as to invade. . . ‘expression.’"

These cases seem to be distinguishing "abstract" ideas from "concrete" tangible embodiments of
these abstractions that may be termed expression. However, if the concrete form of a work means
more than the literal expression contained within it, it is difficult to determine what is meant by
"concrete." Webster's New Twentieth Century Dictionary of the English Language provides several
meanings for the word concrete. These include: "having a material, perceptible existence; of,
belonging to, or characterized by things or events that can be perceived by the senses; real; actual;"
and "referring to a particular; specific, not general or abstract."92

In Pearl & Dean (Phil.), Incorporated v. Shoemart, Incorporated,93 this court, citing the American case
of Baker v. Selden, distinguished copyright from patents and illustrated how an idea or concept is
different from the expression of that idea:

In the oft-cited case of Baker vs. Selden, the United States Supreme Court held that only the
expression of an idea is protected by copyright, not the idea itself. In that case, the plaintiff held the
copyright of a book which expounded on a new accounting system he had developed. The
publication illustrated blank forms of ledgers utilized in such a system. The defendant reproduced
forms similar to those illustrated in the plaintiff’s copyrighted book. The US Supreme Court ruled
that:

"There is no doubt that a work on the subject of book-keeping, though only explanatory of well
known systems, may be the subject of a copyright; but, then, it is claimed only as a book. x x x But
there is a clear distinction between the books, as such, and the art, which it is, intended to illustrate.
The mere statement of the proposition is so evident that it requires hardly any argument to support it.
The same distinction may be predicated of every other art as well as that of bookkeeping.

A treatise on the composition and use of medicines, be they old or new; on the construction and use
of ploughs or watches or churns; or on the mixture and application of colors for painting or dyeing; or
on the mode of drawing lines to produce the effect of perspective, would be the subject of copyright;
but no one would contend that the copyright of the treatise would give the exclusive right to the art or
manufacture described therein. The copyright of the book, if not pirated from other works, would be
valid without regard to the novelty or want of novelty of its subject matter. The novelty of the art or
thing described or explained has nothing to do with the validity of the copyright. To give to the author
of the book an exclusive property in the art described therein, when no examination of its novelty has
ever been officially made, would be a surprise and a fraud upon the public. That is the province of
letters patent, not of copyright. The claim to an invention of discovery of an art or manufacture must
be subjected to the examination of the Patent Office before an exclusive right therein can be
obtained; and a patent from the government can only secure it.

The difference between the two things, letters patent and copyright, may be illustrated by reference
to the subjects just enumerated. Take the case of medicines. Certain mixtures are found to be of
great value in the healing art. If the discoverer writes and publishes a book on the subject (as regular
physicians generally do), he gains no exclusive right to the manufacture and sale of the medicine; he
gives that to the public. If he desires to acquire such exclusive right, he must obtain a patent for the
mixture as a new art, manufacture or composition of matter. He may copyright his book, if he
pleases; but that only secures to him the exclusive right of printing and publishing his book. So of all
other inventions or discoveries.

The copyright of a book on perspective, no matter how many drawings and illustrations it may
contain, gives no exclusive right to the modes of drawing described, though they may never have
been known or used before. By publishing the book without getting a patent for the art, the latter is
given to the public.

....
Now, whilst no one has a right to print or publish his book, or any material part thereof, as a book
intended to convey instruction in the art, any person may practice and use the art itself which he has
described and illustrated therein. The use of the art is a totally different thing from a publication of
the book explaining it. The copyright of a book on bookkeeping cannot secure the exclusive right to
make, sell and use account books prepared upon the plan set forth in such book. Whether the art
might or might not have been patented, is a question, which is not before us. It was not patented,
and is open and free to the use of the public. And, of course, in using the art, the ruled lines and
headings of accounts must necessarily be used as incident to it.

The plausibility of the claim put forward by the complainant in this case arises from a confusion of
ideas produced by the peculiar nature of the art described in the books, which have been made the
subject of copyright. In describing the art, the illustrations and diagrams employed happened to
correspond more closely than usual with the actual work performed by the operator who uses the
art. x x x The description of the art in a book, though entitled to the benefit of copyright, lays no
foundation for an exclusive claim to the art itself. The object of the one is explanation; the object of
the other is use. The former may be secured by copyright. The latter can only be secured, if it can be
secured at all, by letters patent."94 (Emphasis supplied)

News or the event itself is not copyrightable. However, an event can be captured and presented in a
specific medium. As recognized by this court in Joaquin, television "involves a whole spectrum of
visuals and effects, video and audio."95 News coverage in television involves framing shots, using
images, graphics, and sound effects.96 It involves creative process and originality. Television news
footage is an expression of the news.

In the United States, a line of cases dwelt on the possibility of television newscasts to be
copyrighted.97 Most of these cases focused on private individuals’ sale or resale of tapes of news
broadcasts. Conflicting decisions were rendered by its courts. Noteworthy, however, is the District
Court’s pronouncement in Pacific & Southern Co. v. Duncan,98 which involves a News Monitoring
Service’s videotaping and sale of WXIA-TV’s news broadcasts:

It is axiomatic that copyright protection does not extend to news "events" or the facts or ideas which
are the subject of news reports. Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1368 (5th Cir.
1981); Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 95 (2d Cir. 1977),
cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 759 (1978). But it is equally well-settled that
copyright protection does extend to the reports themselves, as distinguished from the substance of
the information contained in the reports. Wainwright, 558 F.2d at 95; International News Service v.
Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918); see Chicago Record-Herald Co.
v. Tribune Assn., 275 F. 797 (7th Cir.1921); 1 Nimmer on Copyright § 2.11[B] (1983). Copyright
protects the manner of expression of news reports, "the particular form or collocation of words in
which the writer has communicated it." International News Service, 248 U.S. at 234, 39 S.Ct. at 70.
Such protection extends to electronic news reports as well as written reports. See17 U.S.C. § 102(a)
(5), (6), and (7); see also Iowa State University Research Foundations, Inc. v. American
Broadcasting Cos., 621 F.2d 57, 61 (2d Cir. 1980).99 (Emphasis supplied)

The idea/expression dichotomy has long been subject to debate in the field of copyright law.
Abolishing the dichotomy has been proposed, in that non-protectibility of ideas should be re-
examined, if not stricken, from decisions and the law:

If the underlying purpose of the copyright law is the dual one expressed by Lord Mansfield, the only
excuse for the continuance of the idea-expression test as a judicial standard for determining
protectibility would be that it was or could be a truly useful method of determining the proper balance
between the creator’s right to profit from his work and the public's right that the "progress of the arts
not be retarded."

. . . [A]s used in the present-day context[,] the dichotomy has little or no relationship to the policy
which it should effectuate. Indeed, all too often the sweeping language of the courts regarding the
non-protectibility of ideas gives the impression that this is of itself a policy of the law, instead of
merely a clumsy and outdated tool to achieve a much more basic end.100

The idea/expression dichotomy is a complex matter if one is trying to determine whether a certain
material is a copy of another.101 This dichotomy would be more relevant in determining, for instance,
whether a stage play was an infringement of an author’s book involving the same characters and
setting. In this case, however, respondents admitted that the material under review — which is the
subject of the controversy — is an exact copy of the original. Respondents did not subject ABS-
CBN’s footage to any editing of their own. The news footage did not undergo any transformation
where there is a need to track elements of the original.

Having established the protectible nature of news footage, we now discuss the concomitant rights
accorded to authors. The authors of a work are granted several rights in relation to it, including
copyright or economic rights:

SECTION 177. Copyright or Economic Rights. — Subject to the provisions of Chapter VIII, copyright
or economic rights shall consist of the exclusive right to carry out, authorize or prevent the following
acts:

177.1. Reproduction of the work or substantial portion of the work;

177.2. Dramatization, translation, adaptation, abridgment, arrangement or other

transformation of the work;

177.3. The first public distribution of the original and each copy of the work by sale or other
forms of transfer of ownership;

177.4. Rental of the original or a copy of an audiovisual or cinematographic work, a work

embodied in a sound recording, a computer program, a compilation of data and other
materials or a musical work in graphic form, irrespective of the ownership of the original or
the copy which is the subject of the rental; (n)

177.5. Public display of the original or a copy of the work;

177.6. Public performance of the work; and

177.7. Other communication to the public of the work.(Sec. 5, P. D. No. 49a) (Emphasis
supplied)

Under Section 211 of the Intellectual Property Code, broadcasting organizations are granted a more
specific set of rights called related or neighboring rights:

SECTION 211. Scope of Right. — Subject to the provisions of Section 212, broadcasting
organizations shall enjoy the exclusive right to carry out, authorize or prevent any of the following
acts:
 211.1. The rebroadcasting of their broadcasts;

211.2. The recording in any manner, including the making of films or the use of video tape, of
their broadcasts for the purpose of communication to the public of television broadcasts of
the same; and

211.3. The use of such records for fresh transmissions or for fresh recording. (Sec. 52, P.D.
No. 49) (Emphasis supplied)

Section 212 of the Code provides:

CHAPTER XV
LIMITATIONS ON PROTECTION

Section 212. Limitations on Rights. - Sections 203, 208 and 209 shall not apply where the acts
referred to in those Sections are related to:

212.1. The use by a natural person exclusively for his own personal purposes;

212.2. Using short excerpts for reporting current events;

212.3. Use solely for the purpose of teaching or for scientific research; and

212.4. Fair use of the broadcast subject to the conditions under Section 185. (Sec. 44, P.D.
No. 49a)

The Code defines what broadcasting is and who broadcasting organizations include:

202.7. "Broadcasting" means the transmission by wireless means for the public reception of
sounds or of images or of representations thereof; such transmission by satellite is also
"broadcasting" where the means for decrypting are provided to the public by the
broadcasting organization or with its consent;

202.8. "Broadcasting organization" shall include a natural person or a juridical entity duly
authorized to engage in broadcasting[.]

Developments in technology, including the process of preserving once ephemeral works and
disseminating them, resulted in the need to provide a new kind of protection as distinguished from
copyright.102 The designation "neighboring rights" was abbreviated from the phrase "rights
neighboring to copyright."103 Neighboring or related rights are of equal importance with copyright as
established in the different conventions covering both kinds of rights.104

Several treaties deal with neighboring or related rights of copyright.105 The most prominent of these is
the "International Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organizations" (Rome Convention).106

The Rome Convention protects the rights of broadcasting organizations in relation to their
broadcasts. Article XIII of the Rome Convention enumerates the minimum rights accorded to
broadcasting organizations:

Article 13
Minimum Rights for Broadcasting Organizations

Broadcasting organisations shall enjoy the right to authorize or prohibit:

(a) the rebroadcasting of their broadcasts;

(b) the fixation of their broadcasts;

(c) the reproduction:

(i) of fixations, made without their consent, of their broadcasts;

(ii) of fixations, made in accordance with the provisions of Article 15, of their
broadcasts, if the reproduction is made for purposes different from those referred to
in those provisions;

(d) the communication to the public of their television broadcasts if such communication is
made in places accessible to the public against payment of an entrance fee; it shall be a
matter for the domestic law of the State where protection of this right is claimed to determine
the conditions under which it may be exercised.

With regard to the neighboring rights of a broadcasting organization in this jurisdiction, this court has
discussed the difference between broadcasting and rebroadcasting:

Section 202.7 of the IP Code defines broadcasting as "the transmission by wireless means for the
public reception of sounds or of images or of representations thereof; such transmission by satellite
is also ‘broadcasting’ where the means for decrypting are provided to the public by the broadcasting
organization or with its consent."

On the other hand, rebroadcasting as defined in Article 3(g) of the International Convention for the
Protection of Performers, Producers of Phonograms and Broadcasting Organizations, otherwise
known as the 1961 Rome Convention, of which the Republic of the Philippines is a signatory, is "the
simultaneous broadcasting by one broadcasting organization of the broadcast of another
broadcasting organization."

....

Under the Rome Convention, rebroadcasting is "the simultaneous broadcasting by one broadcasting
organization of the broadcast of another broadcasting organization." The Working Paper prepared by
the Secretariat of the Standing Committee on Copyright and Related Rights defines broadcasting
organizations as "entities that take the financial and editorial responsibility for the selection and
arrangement of, and investment in, the transmitted content."107 (Emphasis in the original, citations
omitted)

Broadcasting organizations are entitled to several rights and to the protection of these rights under
the Intellectual Property Code. Respondents’ argument that the subject news footage is not
copyrightable is erroneous. The Court of Appeals, in its assailed Decision, correctly recognized the
existence of ABS-CBN’s copyright over the news footage:
Surely, private respondent has a copyright of its news coverage. Seemingly, for airing said video
feed, petitioner GMA is liable under the provisions of the Intellectual Property Code, which was
enacted purposely to protect copyright owners from infringement.108

News as expressed in a video footage is entitled to copyright protection. Broadcasting organizations

have not only copyright on but also neighboring rights over their broadcasts. Copyrightability of a
work is different from fair use of a work for purposes of news reporting.

VI

ABS-CBN assails the Court of Appeals’ ruling that the footage shown by GMA-7 falls under the
scope of Section 212.2 and 212.4 of the Intellectual Property Code:

The evidence on record, as well as the discussions above, show that the footage used
by[respondents] could hardlybe characterized as a short excerpt, as it was aired over one and a half
minutes.

Furthermore, the footage used does not fall under the contemplation of Section 212.2 of the
Intellectual Property Code. A plain reading of the provision would reveal that copyrighted material
referred to in Section 212 are short portions of an artist’s performance under Section 203, or a
producer’s sound recordings under Sections 208 and 209. Section 212 does not refer to actual use
of video footage of another as its own.

The Angelo dela Cruz footage does not fall under the rule on Section 212.4 of the Intellectual
Property Code on fair use of the broadcast.

....

In determining fair use, several factors are considered, including the nature of the copyrighted work,
and the amount and substantiality of the person used in relation to the copyrighted work as a whole.

In the business of television news reporting, the nature of the copyrighted work or the video
footages, are such that, footage created, must be a novelty to be a good report. Thus, when the . . .
Angelo dela Cruz footage was used by [respondents], the novelty of the footage was clearly
affected.

Moreover, given that a substantial portion of the Angelo dela Cruz footage was utilized by GMA-7 for
its own, its use can hardly be classified as fair use.

Hence, [respondents] could not be considered as having used the Angelo dela Cruz [footage]
following the provisions on fair use.

It is also worthy to note that the Honorable Court of Appeals seem to contradict itself when it relied
on the provisions of fair use in its assailed rulings considering that it found that the Angelo dela Cruz
footage is not copyrightable, given that the fair use presupposes an existing copyright. Thus, it is
apparent that the findings of the Honorable Court of Appeals are erroneous and based on wrong
assumptions.109 (Underscoring in the original)

On the other hand, respondents counter that GMA-7’s use of ABS-CBN’s news footage falls under
fair use as defined in the Intellectual Property Code. Respondents, citing the Court of Appeals
Decision, argue that a strong statutory defense negates any finding of probable cause under the
same statute.110 The Intellectual Property Code provides that fair use negates infringement.

Respondents point out that upon seeing ABS-CBN’s reporter Dindo Amparo on the footage, GMA-7
immediately shut off the broadcast. Only five (5) seconds passed before the footage was cut. They
argue that this shows that GMA-7 had no prior knowledge of ABS-CBN’s ownership of the footage or
was notified of it. They claim that the Angelo dela Cruz footage is considered a short excerpt of an
event’s "news" footage and is covered by fair use.111

Copyright protection is not absolute.112 The Intellectual Property Code provides the limitations on
copyright:

CHAPTER VIII
LIMITATIONS ON COPYRIGHT

Section 184. Limitations on Copyright. - 184.1. Notwithstanding the provisions of Chapter V, the
following acts shall not constitute infringement of copyright:

....

184.2. The provisions of this section shall be interpreted in such a way as to allow the work to be
used in a manner which does not conflict with the normal exploitation of the work and does not
unreasonably prejudice the right holder's legitimate interests.

....

CHAPTER XV
LIMITATIONS ON PROTECTION

Section 212. Limitations on Rights. - Sections 203, 208 and 209 shall not apply where the acts
referred to in those Sections are related to:

....

212.2. Using short excerpts for reporting current events;

....

212.4. Fair use of the broadcast subject to the conditions under Section 185.(Sec. 44, P.D. No. 49a)
(Emphasis supplied)

The determination of what constitutes fair use depends on several factors. Section 185 of the
Intellectual Property Code states:

SECTION 185. Fair Use of a Copyrighted Work. —

185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including
multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement
of copyright. . . . In determining whether the use made of a work in any particular case is fair use, the
factors to be considered shall include:
 a. The purpose and character of the use, including whether such use is of a commercial
nature or is for non-profit educational purposes;

b. The nature of the copyrighted work;

c. The amount and substantiality of the portion used in relation to the copyrighted work as a
whole; and

d. The effect of the use upon the potential market for or value of the copyrighted work.
Respondents allege that the news footage was only five (5) seconds long, thus falling under
fair use. ABS-CBN belies this contention and argues that the footage aired for two (2)
minutes and 40 seconds.113 According to the Court of Appeals, the parties admitted that only
five (5) seconds of the news footage was broadcasted by GMA-7.114

This court defined fair use as "aprivilege to use the copyrighted material in a reasonable manner
without the consent of the copyright owner or as copying the theme or ideas rather than their
expression."115 Fair use is an exception to the copyright owner’s monopoly of the use of the work to
avoid stifling "the very creativity which that law is designed to foster."116

Determining fair use requires application of the four-factor test. Section 185 of the Intellectual
Property Code lists four (4) factors to determine if there was fair use of a copyrighted work:

a. The purpose and character of the use, including whether such use is of a commercial
nature or is for non-profit educational purposes;

b. The nature of the copyrighted work;

c. The amount and substantiality of the portion used in relation to the copyrighted work as a
whole; and

d. The effect of the use upon the potential market for or value of the copyrighted work.

First, the purpose and character of the use of the copyrighted material must fall under those listed in
Section 185, thus: "criticism, comment, news reporting, teaching including multiple copies for
classroom use, scholarship, research, and similar purposes."117 The purpose and character
requirement is important in view of copyright’s goal to promote creativity and encourage creation of
works. Hence, commercial use of the copyrighted work can be weighed against fair use.

The "transformative test" is generally used in reviewing the purpose and character of the usage of
the copyrighted work.118 This court must look into whether the copy of the work adds "new
expression, meaning or message" to transform it into something else.119 "Meta-use" can also occur
without necessarily transforming the copyrighted work used.120

Second, the nature of the copyrighted work is significant in deciding whether its use was fair. If the
nature of the work is more factual than creative, then fair use will be weighed in favor of the user.

Third, the amount and substantiality of the portion used is important to determine whether usage
falls under fair use. An exact reproduction of a copyrighted work, compared to a small portion of it,
can result in the conclusion that its use is not fair. There may also be cases where, though the
entirety of the copyrighted work is used without consent, its purpose determines that the usage is
still fair.121 For example, a parody using a substantial amount of copyrighted work may be permissible
as fair use as opposed to a copy of a work produced purely for economic gain. Lastly, the effect of
the use on the copyrighted work’s market is also weighed for or against the user. If this court finds
that the use had or will have a negative impact on the copyrighted work’s market, then the use is
deemed unfair.

The structure and nature of broadcasting as a business requires assigned values for each second of
broadcast or airtime. In most cases, broadcasting organizations generate revenue through sale of
time or timeslots to advertisers, which, in turn, is based on market share:122 Once a news broadcast
has been transmitted, the broadcast becomes relatively worthless to the station. In the case of the
aerial broadcasters, advertising sales generate most of the profits derived from news reports.
Advertising rates are, in turn, governed by market share. Market share is determined by the number
of people watching a show at any particular time, relative to total viewers at that time. News is by
nature time-limited, and so re-broadcasts are generally of little worth because they draw few
viewers. Newscasts compete for market share by presenting their news in an appealing format that
will capture a loyal audience. Hence, the primary reason for copyrighting newscasts by broadcasters
would seem to be to prevent competing stations from rebroadcasting current news from the station
with the best coverage of a particular news item, thus misappropriating a portion of the market
share.

Of course, in the real world there are exceptions to this perfect economic view. However, there are
also many caveats with these exceptions. A common exception is that some stations rebroadcast
the news of others. The caveat is that generally, the two stations are not competing for market
share. CNN, for example, often makes news stories available to local broadcasters. First, the local
broadcaster is often not affiliated with a network (hence its need for more comprehensive
programming), confining any possible competition to a small geographical area. Second, the local
broadcaster is not in competition with CNN. Individuals who do not have cable TV (or a satellite dish
with decoder) cannot receive CNN; therefore there is no competition. . . . Third, CNN sells the right
of rebroadcast to the local stations. Ted Turner, owner of CNN, does not have First Amendment
freedom of access argument foremost on his mind. (Else he would give everyone free cable TV so
everyone could get CNN.) He is in the business for a profit. Giving away resources does not a profit
make.123 (Emphasis supplied)

The high value afforded to limited time periods is also seen in other media. In social media site
Instagram, users are allowed to post up to only 15 seconds of video.124 In short-video sharing website
Vine,125 users are allowed a shorter period of six (6) seconds per post. The mobile application 1
Second Everyday takes it further by capturing and stitching one (1) second of video footage taken
daily over a span of a certain period.126

Whether the alleged five-second footage may be considered fair use is a matter of defense. We
emphasize that the case involves determination of probable cause at the preliminary investigation
stage. Raising the defense of fair use does not automatically mean that no infringement was
committed. The investigating prosecutor has full discretion to evaluate the facts, allegations, and
evidence during preliminary investigation. Defenses raised during preliminary investigation are
subject to further proof and evaluation before the trial court. Given the insufficiency of available
evidence, determination of whether the Angelo dela Cruz footage is subject to fair use is better left to
the trial court where the proceedings are currently pending. GMA-7’s rebroadcast of ABS-CBN’s
news footage without the latter’s consent is not an issue. The mere act of rebroadcasting without
authority from the owner of the broadcast gives rise to the probability that a crime was committed
under the Intellectual Property Code.

VII
Respondents cannot invoke the defense of good faith to argue that no probable cause exists.

Respondents argue that copyright infringement is malum in se, in that "[c]opying alone is not what is
being prohibited, but its injurious effect which consists in the lifting from the copyright owners’ film or
materials, that were the result of the latter’s creativity, work and productions and without authority,
reproduced, sold and circulated for commercial use to the detriment of the latter."127

Infringement under the Intellectual Property Code is malum prohibitum. The Intellectual Property
Code is a special law. Copyright is a statutory creation:

Copyright, in the strict sense of the term, is purely a statutory right. It is a new or independent right
granted by the statute, and not simply a pre-existing right regulated by the statute. Being a statutory
grant, the rights are only such as the statute confers, and may be obtained and enjoyed only with
respect to the subjects and by the persons, and on terms and conditions specified in the statute.128

The general rule is that acts punished under a special law are malum prohibitum.129 "An act which is
declared malum prohibitum, malice or criminal intent is completely immaterial."130

In contrast, crimes mala in seconcern inherently immoral acts:

Not every criminal act, however, involves moral turpitude. It is for this reason that "as to what crime
involves moral turpitude, is for the Supreme Court to determine". In resolving the foregoing question,
the Court is guided by one of the general rules that crimes mala in se involve moral turpitude, while
crimes mala prohibita do not, the rationale of which was set forth in "Zari v. Flores," to wit:

It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable by
law or not. It must not be merely mala prohibita, but the act itself must be inherently immoral. The
doing of the act itself, and not its prohibition by statute fixes the moral turpitude. Moral turpitude does
not, however, include such acts as are not of themselves immoral but whose illegality lies in their
being positively prohibited. (Emphasis supplied)

[These] guidelines nonetheless proved short of providing a clear cut solution, for in International Rice
Research Institute v. NLRC, the Court admitted that it cannot always be ascertained whether moral
turpitude does or does not exist by merely classifying a crime as malum in se or as malum
prohibitum. There are crimes which are mala in se and yet but rarely involve moral turpitude and
there are crimes which involve moral turpitude and are mala prohibita only. In the final analysis,
whether or not a crime involves moral turpitude is ultimately a question of fact and frequently
depends on all the circumstances surrounding the violation of the statue.131 (Emphasis in the original)

"Implicit in the concept of mala in se is that of mens rea."132 Mens reais defined as "the nonphysical
element which, combined with the act of the accused, makes up the crime charged. Most frequently
it is the criminal intent, or the guilty mind[.]"133

Crimes mala in sepre suppose that the person who did the felonious act had criminal intent to do so,
while crimes mala prohibita do not require knowledge or criminal intent:

In the case of mala in se it is necessary, to constitute a punishable offense, for the person doing the
act to have knowledge of the nature of his act and to have a criminal intent; in the case of mala
prohibita, unless such words as "knowingly" and "willfully" are contained in the statute, neither
knowledge nor criminal intent is necessary. In other words, a person morally quite innocent and with
every intention of being a law abiding citizen becomes a criminal, and liable to criminal penaltes, if
he does an act prohibited by these statutes.134 (Emphasis supplied) Hence, "[i]ntent to commit the
crime and intent to perpetrate the act must be distinguished. A person may not have consciously
intended to commit a crime; but he did intend to commit an act, and that act is, by the very nature of
things, the crime itself[.]"135When an act is prohibited by a special law, it is considered injurious to
public welfare, and the performance of the prohibited act is the crime itself.136

Volition, or intent to commit the act, is different from criminal intent. Volition or voluntariness refers to
knowledge of the act being done. On the other hand, criminal intent — which is different from motive,
or the moving power for the commission of the crime137 — refers to the state of mind beyond
voluntariness. It is this intent that is being punished by crimes mala in se.

Unlike other jurisdictions that require intent for a criminal prosecution of copyright infringement, the
Philippines does not statutorily support good faith as a defense. Other jurisdictions provide in their
intellectual property codes or relevant laws that mens rea, whether express or implied, is an element
of criminal copyright infringement.138

In Canada, criminal offenses are categorized under three (3) kinds: "the full mens rea offence,
meaning the accused’s actual or subjective state of mind has to be proved; strict liability offences
where no mens rea has to be proved but the accused can avoid liability if he can prove he took all
reasonable steps to avoid the particular event; [and] absolute liability offences where Parliament has
made it clear that guilt follows proof of the prescribed act only."139 Because of the use of the word
"knowingly" in Canada’s Copyright Act, it has been held that copyright infringement is a full mens rea
offense.140

In the United States, willful intent is required for criminal copyright infringement.141 Before the
passage of the No Electronic Theft Act, "civil copyright infringements were violations of criminal
copyright laws only if a defendant willfully infringed a copyright ‘for purposes of commercial
advantage or private financial gain.’"142 However, the No Electronic Theft Act now allows criminal
copyright infringement without the requirement of commercial gain. The infringing act may or may
not be for profit.143

There is a difference, however, between the required liability in civil copyright infringement and that
in criminal copyright infringement in the United States. Civil copyright infringement does not require
culpability and employs a strict liability regime144 where "lack of intention to infringe is not a defense
to an action for infringement."145

In the Philippines, the Intellectual Property Code, as amended, provides for the prosecution of
criminal actions for the following violations of intellectual property rights: Repetition of Infringement of
Patent (Section 84); Utility Model (Section 108); Industrial Design (Section 119); Trademark
Infringement (Section 155 in relation to Section 170); Unfair Competition (Section 168 in relation to
Section 170); False Designations of Origin, False Description or Representation (Section 169.1 in
relation to Section 170); infringement of copyright, moral rights, performers’ rights, producers’ rights,
and broadcasting rights (Section 177, 193, 203, 208 and 211 in relation to Section 217); and other
violations of intellectual property rights as may be defined by law.

The Intellectual Property Code requires strict liability for copyright infringement whether for a civil
action or a criminal prosecution; it does not require mens rea or culpa:146

SECTION 216. Remedies for Infringement. —

216.1. Any person infringing a right protected under this law shall be liable:
 a. To an injunction restraining such infringement. The court may also order the
defendant to desist from an infringement, among others, to prevent the entry into the
channels of commerce of imported goods that involve an infringement, immediately
after customs clearance of such goods.

b. Pay to the copyright proprietor or his assigns or heirs such actual damages,
including legal costs and other expenses, as he may have incurred due to the
infringement as well as the profits the infringer may have made due to such
infringement, and in proving profits the plaintiff shall be required to prove sales only
and the defendant shall be required to prove every element of cost which he claims,
or, in lieu of actual damages and profits, such damages which to the court shall
appear to be just and shall not be regarded as penalty.

c. Deliver under oath, for impounding during the pendency of the action, upon such
terms and conditions as the court may prescribe, sales invoices and other
documents evidencing sales, all articles and their packaging alleged to infringe a
copyright and implements for making them.

d. Deliver under oath for destruction without any compensation all infringing copies or
devices, as well as all plates, molds, or other means for making such infringing
copies as the court may order.

e. Such other terms and conditions, including the payment of moral and exemplary
damages, which the court may deem proper, wise and equitable and the destruction
of infringing copies of the work even in the event of acquittal in a criminal case.

216.2. In an infringement action, the court shall also have the power to order the seizure and
impounding of any article which may serve as evidence in the court proceedings. (Sec. 28,
P.D. No. 49a)

SECTION 217. Criminal Penalties. — 217.1. Any person infringing any right secured by provisions of
Part IV of this Actor aiding or abetting such infringement shall be guilty of a crime punishable by:

a. Imprisonment of one (1) year to three (3) years plus a fine ranging from Fifty
thousand pesos (₱50,000) to One hundred fifty thousand pesos (₱150,000) for the
first offense.

b. Imprisonment of three (3) years and one (1) day to six (6) years plus a fine ranging
from One hundred fifty thousand pesos (₱150,000) to Five hundred thousand pesos
(₱500,000) for the second offense.

c. Imprisonment of six (6) years and one (1) day to nine (9) years plus a fine ranging
from Five hundred thousand pesos (₱500,000) to One million five hundred thousand
pesos (₱1,500,000) for the third and subsequent offenses.

d. In all cases, subsidiary imprisonment in cases of insolvency.

217.2. In determining the number of years of imprisonment and the amount of fine, the court
shall consider the value of the infringing materials that the defendant has produced or
manufactured and the damage that the copyright owner has suffered by reason of the
infringement.
 217.3. Any person who at the time when copyright subsists in a work has in his possession
an article which he knows, or ought to know, to be an infringing copy of the work for the
purpose of: a. Selling, letting for hire, or by way of trade offering or exposing for sale, or hire,
the article;

b. Distributing the article for purpose of trade, or for any other purpose to an extent
that will prejudice the rights of the copyright owner in the work; or

c. Trade exhibit of the article in public, shall be guilty of an offense and shall be liable
on conviction to imprisonment and fine as above mentioned. (Sec. 29, P.D. No. 49a)
(Emphasis supplied)

The law is clear. Inasmuch as there is wisdom in prioritizing the flow and exchange of ideas as
opposed to rewarding the creator, it is the plain reading of the law in conjunction with the actions of
the legislature to which we defer. We have continuously "recognized the power of the legislature . . .
to forbid certain acts in a limited class of cases and to make their commission criminal without regard
to the intent of the doer. Such legislative enactments are based on the experience that repressive
measures which depend for their efficiency upon proof of the dealer’s knowledge or of his intent are
of little use and rarely accomplish their purposes."147

Respondents argue that live broadcast of news requires a different treatment in terms of good faith,
intent, and knowledge to commit infringement. To argue this point, they rely on the differences of the
media used in Habana et al. v. Robles, Columbia Pictures v. Court of Appeals, and this case:

Petitioner ABS-CBN argues that lack of notice that the Angelo dela Cruz was under embargo is not a
defense in copyright infringement and cites the case of Columbia Pictures vs. Court of Appeals and
Habana et al. vs. Robles(310 SCRA 511). However, these cases refer to film and literary work where
obviously there is "copying" from an existing material so that the copier knew that he is copying from
an existing material not owned by him. But, how could respondents know that what they are "copying
was not [theirs]" when they were not copying but merely receiving live video feed from Reuters and
CNN which they aired? What they knew and what they aired was the Reuters live video feed and the
CNN feed which GMA-7 is authorized to carry in its news broadcast, it being a subscriber of these
companies[.]

It is apt to stress that the subject of the alleged copyright infringement is not a film or literary work
but live broadcast of news footage. In a film or literary work, the infringer is confronted face to face
with the material he is allegedly copying and therefore knows, or is presumed to know, that what he
is copying is owned by another. Upon the other hand, in live broadcast, the alleged infringer is not
confronted with the fact that the material he airs or re-broadcasts is owned by another, and
therefore, he cannot be charged of knowledge of ownership of the material by another. This specially
obtains in the Angelo dela Cruz news footage which GMA-7 received from Reuters and CNN.
Reuters and CNN were beaming live videos from the coverage which GMA-7 received as a
subscriber and, in the exercise of its rights as a subscriber, GMA-7 picked up the live video and
simultaneously re-broadcast it. In simultaneously broadcasting the live video footage of Reuters,
GMA-7 did not copy the video footage of petitioner ABS-CBN[.]148 (Emphasis in the original)

Respondents’ arguments must fail.

Respondents are involved and experienced in the broadcasting business. They knew that there
would be consequences in carrying ABS-CBN’s footage in their broadcast. That is why GMA-7
allegedly cut the feed from Reuters upon seeing ABS-CBN’s ogo and reporter. To admit a different
treatment for broadcasts would mean abandonment of a broadcasting organization’s minimum
rights, including copyright on the broadcast material and the right against unauthorized rebroadcast
of copyrighted material. The nature of broadcast technology is precisely why related or neighboring
rights were created and developed. Carving out an exception for live broadcasts would go against
our commitments under relevant international treaties and agreements, which provide for the same
minimum rights.149

Contrary to respondents’ assertion, this court in Habana,150 reiterating the ruling in Columbia
Pictures,151 ruled that lack of knowledge of infringement is not a valid defense. Habana and Columbia
Pictures may have different factual scenarios from this case, but their rulings on copyright
infringement are analogous. In Habana, petitioners were the authors and copyright owners of
English textbooks and workbooks. The case was anchored on the protection of literary and artistic
creations such as books. In Columbia Pictures, video tapes of copyrighted films were the subject of
the copyright infringement suit.

In Habana, knowledge of the infringement is presumed when the infringer commits the prohibited
act:

The essence of intellectual piracy should be essayed in conceptual terms in order to underscore its
gravity by an appropriate understanding thereof. Infringement of a copyright is a trespass on a
private domain owned and occupied by the owner of the copyright, and, therefore, protected by law,
and infringement of copyright, or piracy, which is a synonymous term in this connection, consists in
the doing by any person, without the consent of the owner of the copyright, of anything the sole right
to do which is conferred by statute on the owner of the copyright.

....

A copy of a piracy is an infringement of the original, and it is no defense that the pirate, in such
cases, did not know whether or not he was infringing any copyright; he at least knew that what he
was copying was not his, and he copied at his peril.

....

In cases of infringement, copying alone is not what is prohibited. The copying must produce an
"injurious effect". Here, the injury consists in that respondent Robles lifted from petitioners’ book
materials that were the result of the latter’s research work and compilation and misrepresented them
as her own. She circulated the book DEP for commercial use and did not acknowledge petitioners as
her source.152 (Emphasis supplied)

Habana and Columbia Pictures did not require knowledge of the infringement to constitute a
violation of the copyright. One does not need to know that he or she is copying a work without
consent to violate copyright law. Notice of fact of the embargo from Reuters or CNN is not material
to find probable cause that respondents committed infringement. Knowledge of infringement is only
material when the person is charged of aiding and abetting a copyright infringement under Section
217 of the Intellectual Property Code.153

We look at the purpose of copyright in relation to criminal prosecutions requiring willfulness: Most
importantly, in defining the contours of what it means to willfully infringe copyright for purposes of
criminal liability, the courts should remember the ultimate aim of copyright. Copyright is not primarily
about providing the strongest possible protection for copyright owners so that they have the highest
possible incentive to create more works. The control given to copyright owners is only a means to an
end: the promotion of knowledge and learning. Achieving that underlying goal of copyright law also
requires access to copyrighted works and it requires permitting certain kinds of uses of copyrighted
works without the permission of the copyright owner. While a particular defendant may appear to be
deserving of criminal sanctions, the standard for determining willfulness should be set with reference
to the larger goals of copyright embodied in the Constitution and the history of copyright in this
country.154

In addition, "[t]he essence of intellectual piracy should be essayed in conceptual terms in order to
underscore its gravity by an appropriate understanding thereof. Infringement of a copyright is a
trespass on a private domain owned and occupied by the owner of the copyright, and, therefore,
protected by law, and infringement of copyright, or piracy, which is a synonymous term in this
connection, consists in the doing by any person, without the consent of the owner of the copyright, of
anything the sole right to do which is conferred by statute on the owner of the copyright."155

Intellectual property rights, such as copyright and the neighboring right against rebroadcasting,
establish an artificial and limited monopoly to reward creativity. Without these legally enforceable
rights, creators will have extreme difficulty recovering their costs and capturing the surplus or profit
of their works as reflected in their markets. This, in turn, is based on the theory that the possibility of
gain due to creative work creates an incentive which may improve efficiency or simply enhance
consumer welfare or utility. More creativity redounds to the public good.

These, however, depend on the certainty of enforcement. Creativity, by its very nature, is vulnerable
to the free rider problem. It is easily replicated despite the costs to and efforts of the original creator.
The more useful the creation is in the market, the greater the propensity that it will be copied. The
most creative and inventive individuals are usually those who are unable to recover on their
creations.

Arguments against strict liability presuppose that the Philippines has a social, historical, and
economic climate similar to those of Western jurisdictions. As it stands, there is a current need to
strengthen intellectual property protection.

Thus, unless clearly provided in the law, offenses involving infringement of copyright protections
should be considered malum prohibitum. It is the act of infringement, not the intent, which causes
the damage. To require or assume the need to prove intent defeats the purpose of intellectual
property protection.

Nevertheless, proof beyond reasonable doubt is still the standard for criminal prosecutions under the
Intellectual Property Code.

VIII

Respondents argue that GMA-7’s officers and employees cannot be held liable for infringement
under the Intellectual Property Code since it does not expressly provide direct liability of the
corporate officers. They explain that "(i) a corporation may be charged and prosecuted for a crime
where the penalty is fine or both imprisonment and fine, and if found guilty, may be fined; or (ii) a
corporation may commit a crime but if the statute prescribes the penalty therefore to be suffered by
the corporate officers, directors or employees or other persons, the latter shall be responsible for the
offense."156

Section 217 of the Intellectual Property Code states that "any person" may be found guilty of
infringement. It also imposes the penalty of both imprisonment and fine:

Section 217. Criminal Penalties. - 217.1. Any person infringing any right secured by provisions of
Part IV of this Act or aiding or abetting such infringement shall be guilty of a crime punishable by:
 (a) Imprisonment of one (1) year to three (3) years plus a fine ranging from Fifty thousand
pesos (₱50,000) to One hundred fifty thousand pesos (₱150,000) for the first offense.

(b) Imprisonment of three (3) years and one (1) day to six (6) years plus a fine ranging from
One hundred fifty thousand pesos (₱150,000) to Five hundred thousand pesos (₱500,000)
for the second offense.

(c) Imprisonment of six (6) years and one (1) day to nine (9) years plus a fine ranging from
five hundred thousand pesos (₱500,000) to One million five hundred thousand pesos
(₱1,500,000) for the third and subsequent offenses.

(d) In all cases, subsidiary imprisonment in cases of insolvency. (Emphasis supplied)

Corporations have separate and distinct personalities from their officers or directors.157 This
court has ruled that corporate officers and/or agents may be held individually liable for a
crime committed under the Intellectual Property Code:158

Petitioners, being corporate officers and/or directors, through whose act, default or omission the
corporation commits a crime, may themselves be individually held answerable for the crime. . . . The
existence of the corporate entity does not shield from prosecution the corporate agent who
knowingly and intentionally caused the corporation to commit a crime. Thus, petitioners cannot hide
behind the cloak of the separate corporate personality of the corporation to escape criminal liability.
A corporate officer cannot protect himself behind a corporation where he is the actual, present and
efficient actor.159

However, the criminal liability of a corporation’s officers or employees stems from their active
participation in the commission of the wrongful act:

The principle applies whether or not the crime requires the consciousness of wrongdoing. It applies
to those corporate agents who themselves commit the crime and to those, who, by virtue of their
managerial positions or other similar relation to the corporation, could be deemed responsible for its
commission, if by virtue of their relationship to the corporation, they had the power to prevent the act.
Moreover, all parties active in promoting a crime, whether agents or not, are principals. Whether
such officers or employees are benefited by their delictual acts is not a touchstone of their criminal
liability. Benefit is not an operative fact.160 (Emphasis supplied) An accused’s participation in criminal
acts involving violations of intellectual property rights is the subject of allegation and proof. The
showing that the accused did the acts or contributed in a meaningful way in the commission of the
infringements is certainly different from the argument of lack of intent or good faith. Active
participation requires a showing of overt physical acts or intention to commit such acts. Intent or
good faith, on the other hand, are inferences from acts proven to have been or not been committed.

We find that the Department of Justice committed grave abuse of discretion when it resolved to file
the Information against respondents despite lack of proof of their actual participation in the alleged
crime.

Ordering the inclusion of respondents Gozon, GMA-7 President; Duavit, Jr., Executive Vice-
President; Flores, Vice-President for News and Public Affairs; and Soho, Director for News, as
respondents, Secretary Agra overturned the City Prosecutor’s finding that only respondents Dela
Peña-Reyes and Manalastas are responsible for the crime charged due to their duties.161 The Agra
Resolution reads:

Thus, from the very nature of the offense and the penalty involved, it is necessary that GMA-7’s
directors, officers, employees or other officers thereof responsible for the offense shall be charged
and penalized for violation of the Sections 177 and 211 of Republic Act No. 8293. In their complaint
for libel, respondents Felipe L Gozon, Gilberto R. Duavit, Jr., Marissa L. Flores, Jessica A.Soho,
Grace Dela Pena-Reyes, John Oliver T. Manalastas felt they were aggrieved because they were "in
charge of the management, operations and production of news and public affairs programs of the
network" (GMA-7). This is clearly an admission on respondents’ part. Of course, respondents may
argue they have no intention to infringe the copyright of ABS-CBN; that they acted in good faith; and
that they did not directly cause the airing of the subject footage, but again this is preliminary
investigation and what is required is simply probable cause. Besides, these contentions can best be
addressed in the course of trial.162 (Citation omitted)

In contrast, the Office of the City Prosecutor, in the Resolution dated December 3, 2004, found that
respondents Gozon, Duavit, Jr., Flores, and Soho did not have active participation in the commission
of the crime charged:

This Office, however, does not subscribe to the view that respondents Atty. Felipe Gozon, Gilberto
Duavit, Marissa Flores and Jessica Soho should be held liable for the said offense. Complainant
failed to present clear and convincing evidence that the said respondents conspired with Reyes and
Manalastas. No evidence was adduced to prove that these respondents had an active participation
in the actual commission of the copyright infringement or they exercised their moral ascendancy
over Reyes and Manalastas in airing the said footage. It must be stressed that, conspiracy must be
established by positive and conclusive evidence. It must be shown to exist as clearly and
convincingly as the commission of the offense itself.163 (Emphasis supplied, citations omitted)

The City Prosecutor found respondents Dela Peña-Reyes and Manalastas liable due to the nature of
their work and responsibilities. He found that:

[t]his Office however finds respondents Grace Dela Peña-Reyes and John Oliver T. Manalastas
liable for copyright infringement penalized under Republic Act No. 8293. It is undisputed that
complainant ABSCBN holds the exclusive ownership and copyright over the "Angelo [d]ela Cruz
news footage". Hence, any airing and re-broadcast of the said footage without any consent and
authority from ABS-CBN will be held as an infringement and violation of the intellectual property
rights of the latter. Respondents Grace Dela Peña-Reyes as the Head of the News Operation and
John Oliver T. Manalastas as the Program Manager cannot escape liability since the news control
room was under their direct control and supervision. Clearly, they must have been aware that the
said footage coming from Reuters or CNN has a "No Access Philippines" advisory or embargo thus
cannot be re-broadcast. We find no merit to the defense of ignorance interposed by the respondents.
It is simply contrary to human experience and logic that experienced employees of an established
broadcasting network would be remiss in their duty in ascertaining if the said footage has an
embargo.164 (Emphasis supplied)

We agree with the findings as to respondents Dela Peña-Reyes and Manalastas. Both respondents
committed acts that promoted infringement of ABS-CBN’s footage. We note that embargoes are
common occurrences in and between news agencies and/or broadcast organizations.165 Under its
Operations Guide, Reuters has two (2) types of embargoes: transmission embargo and publication
embargo.166 Under ABS-CBN’s service contract with Reuters, Reuters will embargo any content
contributed by ABS-CBN from other broadcast subscribers within the same geographical location:

4a. Contributed Content

You agree to supply us at our request with news and sports news stories broadcast on the Client
Service of up to three (3) minutes each for use in our Services on a non-exclusive basis and at a
cost of US$300.00 (Three Hundred United States Dollars) per story. In respect of such items we
agree to embargo them against use by other broadcast subscribers in the Territory and confirm we
will observe all other conditions of usage regarding Contributed Content, as specified in Section 2.5
of the Reuters Business Principles for Television Services. For the purposes of clarification, any
geographical restriction imposed by you on your use of Contributed Content will not prevent us or
our clients from including such Contributed Content in online transmission services including the
internet. We acknowledge Contributed Content is your copyright and we will not acquire any
intellectual property rights in the Contributed Content.167 (Emphasis supplied)

Respondents Dela Peña-Reyes and Manalastas merely denied receiving the advisory sent by
Reuters to its clients, including GMA-7. As in the records, the advisory reads:

ADVISORY - - +++LIVE COVER PLANS+++

PHILIPPINES: HOSTAGE RETURN

**ATTENTION ALL CLIENTS**

PLEASE BE ADVISED OF THE FOLLOWING LIVE COVER

PLANNED FOR THURSDAY, JULY 22:

....

SOURCE: ABS-CBN
TV AND WEB RESTRICTIONS: NO ACCESS PHILIPPINES.168

There is probable cause that respondents Dela Peña-Reyes and Manalastas directly committed
copyright infringement of ABS-CBN’s news footage to warrant piercing of the corporate veil. They
are responsible in airing the embargoed Angelo dela Cruz footage. They could have prevented the
act of infringement had they been diligent in their functions as Head of News Operations and
Program Manager.

Secretary Agra, however, committed grave abuse of discretion when he ordered the filing of the
Information against all respondents despite the erroneous piercing of the corporate veil.
Respondents Gozon, Duavit, Jr., Flores, and Soho cannot be held liable for the criminal liability of
the corporation.

Mere membership in the Board or being President per se does not mean knowledge, approval, and
participation in the act alleged as criminal. There must be a showing of active participation, not
simply a constructive one.

Under principles of criminal law, the principals of a crime are those "who take a direct part in the
execution of the act; [t]hose who directly force or induce others to commit it; [or] [t]hose who
cooperate in the commission of the offense by another act without which it would not have been
accomplished."169 There is conspiracy "when two or more persons come to an agreement concerning
the commission of a felony and decide to commit it":170

Conspiracy is not presumed. Like the physical acts constituting the crime itself, the elements of
conspiracy must be proven beyond reasonable doubt. While conspiracy need not be established by
1âwphi1

direct evidence, for it may be inferred from the conduct of the accused before, during and after the
commission of the crime, all taken together, however, the evidence must be strong enough to show
the community of criminal design. For conspiracy to exist, it is essential that there must be a
conscious design to commit an offense. Conspiracy is the product of intentionality on the part of the
cohorts.

It is necessary that a conspirator should have performed some overt act as a direct or indirect
contribution to the execution of the crime committed. The overt act may consist of active participation
in the actual commission of the crime itself, or it may consist of moral assistance to his co-
conspirators by being present at the commission of the crime or by exerting moral ascendancy over
the other co-conspirators[.]171 (Emphasis supplied, citations omitted)

In sum, the trial court erred in failing to resume the proceedings after the designated period. The
Court of Appeals erred when it held that Secretary Agra committed errors of jurisdiction despite its
own pronouncement that ABS-CBN is the owner of the copyright on the news footage. News should
be differentiated from expression of the news, particularly when the issue involves rebroadcast of
news footage. The Court of Appeals also erroneously held that good faith, as. well as lack of
knowledge of infringement, is a defense against criminal prosecution for copyright and neighboring
rights infringement. In its current form, the Intellectual Property Code is malum prohibitum and
prescribes a strict liability for copyright infringement. Good faith, lack of knowledge of the copyright,
or lack of intent to infringe is not a defense against copyright infringement. Copyright, however, is
subject to the rules of fair. use and will be judged on a case-to-case basis. Finding probable cause
includes a determination of the defendant's active participation, particularly when the corporate veil
is pierced in cases involving a corporation's criminal liability.

WHEREFORE, the Petition is partially GRANTED. The Department of Justice Resolution dated June
29, 2010 ordering the filing of the Information is hereby REINSTATED as to respondents Grace Dela
Pena-Reyes and John Oliver T. Manalastas. Branch 93 of the Regional Trial Court of Quezon City is
directed to continue with the proceedings in Criminal Case No. Q-04-131533.

SO ORDERED.

MARVIC M.V.F. LEONEN

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

JOSE CATRAL MENDOZA

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 Court's Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's 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 Court's Division.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

1
Rollo, pp. 14–50.

2
Id. at 60–73. The Decision, docketed as CA-G.R. SP No. 15751, was penned by Associate
Justice Josefina Guevara-Salonga and concurred in by Associate Justices Mariflor Punzalan
and Franchito N. Diamante of the Fourth Division, Court of Appeals Manila.

3
Id. at 76–77.

4
SECTION 177. Copyright or Economic Rights. — Subject to the provisions of Chapter VIII,
copyright or economic rights shall consist of the exclusive right to carry out, authorize or
prevent the following acts:

177.1. Reproduction of the work or substantial portion of the work;

177.2. Dramatization, translation, adaptation, abridgment, arrangement or other

transformation of the work;

177.3. The first public distribution of the original and each copy of the work by sale or
other forms of transfer of ownership;

177.4. Rental of the original or a copy of an audiovisual or cinematographic work, a

work embodied in a sound recording, a computer program, a compilation of data and
other materials or a musical work in graphic form, irrespective of the ownership of the
original or the copy which is the subject of the rental; (n)

177.5. Public display of the original or a copy of the work;

177.6. Public performance of the work; and

177.7. Other communication to the public of the work. (Sec. 5, P. D. No. 49a)

5
SECTION 211. Scope of Right. — Subject to the provisions of Section 212, broadcasting
organizations shall enjoy the exclusive right to carry out, authorize or prevent any of the
following acts:
 211.1. The rebroadcasting of their broadcasts;

211.2. The recording in any manner, including the making of films or the use of video
tape, of their broadcasts for the purpose of communication to the public of television
broadcasts of the same; and

211.3. The use of such records for fresh transmissions or for fresh recording. (Sec.
52, P.D. No. 49)

6
Rep. Act No. 8293 (1997).

7
Rollo, p. 61.

8
Id.

9
Id.

10
Id. at 1392.

11
Id. at 61.

12
Id.

13
Id. at 61–62.

14
Id. at 62.

15
Id. at 1349.

16
SECTION 177. Copyright or Economic Rights. — Subject to the provisions of Chapter VIII,
copyright or economic rights shall consist of the exclusive right to carry out, authorize or
prevent the following acts:

177.1. Reproduction of the work or substantial portion of the work;

177.2. Dramatization, translation, adaptation, abridgment, arrangement or other

transformation of the work;

177.3. The first public distribution of the original and each copy of the work by sale or
other forms of transfer of ownership;

177.4. Rental of the original or a copy of an audiovisual or cinematographic work, a

work embodied in a sound recording, a computer program, a compilation of data and
other materials or a musical work in graphic form, irrespective of the ownership of the
original or the copy which is the subject of the rental; (n)

177.5. Public display of the original or a copy of the work;

177.6. Public performance of the work; and

 177.7. Other communication to the public of the work. (Sec. 5, P. D. No. 49a)

17
SECTION 211. Scope of Right. — Subject to the provisions of Section 212, broadcasting
organizations shall enjoy the exclusive right to carry out, authorize or prevent any of the
following acts:

211.1. The rebroadcasting of their broadcasts;

211.2. The recording in any manner, including the making of films or the use of video
tape, of their broadcasts for the purpose of communication to the public of television
broadcasts of the same; and

211.3. The use of such records for fresh transmissions or for fresh recording. (Sec.
52, P.D. No. 49)

Rollo, p. 62. The Complaint was consolidated with GMA-7’s Complaint for libel against
18

several of ABS-CBN’s employees docketed as I.S. No. 04-9681 in rollo, p. 226.

19
Id. at 226–231.

20
Id. at 231. The Complaint for libel (I.S. No. 04-9681) filed by respondents was consolidated
with ABS-CBN’s Complaint for copyright infringement (I.S. No. 04-10458). The Resolution
dated December 3, 2004 dismissed respondents’ Complaint for libel against Erwin Tulfo, et
al.

21
Id. at 233–234.

22
Id. at 233.

23
Id. at 62.

24
Id. at 63 and 492–495.

25
Id. at 495.

26
Id. at 64.

Id. at 63. The Motion prayed that Dela Peña and Manalastas’ Motion to Quash filed
27

January 10, 2005 be withdrawn and that the arraignment scheduled on February 1, 2005 be
deferred.

28
Id. at 328.

29
Id at 569–576.

30
Id.

31
Id. at 571.

32
Id. at 575.
33
Id. at 1171–1172 and 1353.

34
Id. at 60–73.

35
Id. at 68–69.

36
Id. at 72.

37
Id. at 76–77.

38
Id. at 14.

39
478 Phil. 784 (2004) [Per J. Ynares-Santiago, First Division].

40
Id. at 793. See also Trinidad v. Ang, 656 Phil. 216 (2011) [Per J. Brion, Third Division].

41
235 Phil. 465 (1987) [Per J. Gancayco, En Banc]. See also J. Leonen’s Separate
Concurring Opinion in Estrada v. Office of the Ombudsman, et al., G.R. Nos. 212140–41,
January 21, 2015
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/212140
-41_leonen.pdf> [Per J. Carpio, En Banc].

42
235 Phil. 465, 474 (1987) [Per J. Gancayco, En Banc].

43
Id. at 474–476.

44
488 Phil. 203 (2004) [Per J. Chico-Nazario, Second Division].

45
Id. at 216.

46
Crespo v. Judge Mogul, 235 Phil. 465, 470 (1987) [Per J. Gancayco, En Banc].

47
Rollo, p. 67.

48
G.R. No. 155996, June 27, 2012, 675 SCRA 20 [Per J. Brion, Second Division].

49
Id. at 48, citing Alcaraz v. Gonzalez, 533 Phil. 797 (2006) [Per J. Callejo, Sr., First
Division]. This court, however, differentiated cases involving an offense punishable by
reclusion perpetua to death from those that do not. Cases that involve an offense not
punishable by reclusion perpetua to death cannot be appealed to the Office of the President
and, thus, "leaves a certiorari petition as the only remedial avenue left."

50
Id.

51
569 Phil. 630 (2008) [Per J. Corona, First Division].

52
Id. at 640. See Glaxosmithkline Philippines, Inc. v. Khalid Mehmood Malik, 530 Phil. 662
(2006) [Per J. Garcia, Second Division], citing Punzalan v. De La Pena, 478 Phil. 771 (2004)
[Per J. Ynares-Santiago, First Division]; Cabahug v. People, 426 Phil. 490 (2002) [Per J.
Ynares-Santiago, First Division]; and Baylon v. Office of the Ombudsman and the
Sandiganbayan, 423 Phil. 705 (2001) [Per J. Pardo, First Division].

Asetre v. Asetre, 602 Phil. 840, 853 (2009) [Per J. Quisumbing, Second Division], citing
53

D.M. Consunji, Inc. v. Esguerra, 328 Phil. 1168 (1996) [Per J. Panganiban, Third Division].

54
RULES OF COURT, Rule 65, sec. 1. Petition for certiorari. – When any tribunal, board or
officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and
there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law,
a person aggrieved thereby may file a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered annulling or modifying the proceedings
of such tribunal, board or officer, and granting such incidental reliefs as law and justice may
require[.]

55
HPS Software and Communication v. Philippine Long Distance Telephone Company
(PLDT), G.R. No. 170217, December 10, 2012, 687 SCRA 426, 452 [Per J. Leonardo-De
Castro, First Division]. See Medado v. Heirs of the Late Antonio Consing, G.R. No. 186720,
February 8, 2012, 665 SCRA 534 [Per J. Reyes, Second Division]; Estrada v. Office of the
Ombudsman, et al., G.R. Nos. 212140–41, January 21, 2015, 25–26
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/212140
-41.pdf> [Per J. Carpio, En Banc], citing Delos Reyes v. Flores, 628 Phil. 170 (2010) [Per J.
Carpio, Second Division]; Cervantes v. Court of Appeals, 512 Phil. 210 (2005) [Per J.
Ynares-Santiago, First Division]; Flores v. Sangguniang Panlalawigan of Pampanga, 492
Phil. 377 (2005) [Per J. SandovalGutierrez, Third Division]. See also Bokingo v. Court of
Appeals, 523 Phil. 186 (2006) [Per J. Callejo, Sr., First Division] and Yao v. Perello, 460 Phil.
658 (2003) [Per J. Corona, Third Division].

56
Tan v. CA, 341 Phil. 570, 576-578 (1997) [Per J. Francisco, Third Division] as cited in
Estrada v. Office of the Ombudsman, et al., G.R. Nos. 212140-41, January 21, 2015, 25
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/212140
-41_leonen.pdf> [Per J. Carpio, En Banc]. See Republic Gas Corporation v. Petron
Corporation, G.R. No. 194062, June 17, 2013, 698 SCRA 666, 676-677 [Per J. Peralta,
Second Division]. See also Republic v. Pantranco North Express, Inc. (PNEI), G.R. No.
178593, February 15, 2012, 666 SCRA 199, 205-206 [Per J. Villarama, Jr., First Division],
citing Sim v. National Labor Relations Commission, 560 Phil. 762 (2007) [Per J. Austria-
Martinez, Third Division];HPS Software and Communication v. Philippine Long Distance
Telephone Company (PLDT), G.R. No. 170217, December 10, 2012, 687 SCRA 426, 452
[Per J. Leonardo-De Castro, First Division].

57
Rollo, p. 1383.

58
Id. at 1384.

59
Id. at 71–72.

60
Fernando v. Vasquez, No. L-26417, January 30, 1970, 31 SCRA 288, 292 [Per J. Sanchez,
En Banc]. See Philippine National Construction Corporation v. Court of Appeals, 541 Phil.
658, 672 (2007): "An error of judgment is one which the court may commit in the exercise of
its jurisdiction, and which error is reviewable only by an appeal. On the other hand, an error
of jurisdiction is one where the act complained of was issued by the court, officer or a quasi-
judicial body without or in excess of jurisdiction, or with grave abuse of discretion which is
tantamount to lack or in excess of jurisdiction. This error is correctable only by the
extraordinary writ of certiorari."

61
645 Phil. 379 (2010) [Per J. Peralta, Second Division].

Id. at 384–385, citing First Corporation v. Former Sixth Division of the Court of Appeals,
62

553 Phil. 527, 541 (2007) [Per J. Chico-Nazario, Third Division].

Punzalan v. Plata, G.R. No. 160316, September 2, 2013, 704 SCRA 426, 439–442 [Per J.
63

Mendoza, Third Division], citing Paredes v. Calilung, 546 Phil. 198, 224 (2007) [Per J. Chico-
Nazario, Third Division].

Id. at 439–440, citing Buan v. Matugas, 556 Phil. 110, 119 (2007) [Per J. Garcia, First
64

Division].

65
Asetre v. Asetre, 602 Phil. 840, 852–854 (2009) [Per J. Quisumbing, Second Division].

Reyes v. Pearlbank Securities, Inc., 582 Phil. 505, 518 (2008) [Per J. Chico-Nazario, Third
66

Division].

67
1985 REV. RULES OF CRIM. PROC., Rule 112, sec. 1, par. 1.

68
317 Phil. 758 (1995) [Per J. Puno, Second Division].

69
Id. at 780–789..

Reyes v. Pearlbank Securities, Inc., 582 Phil. 505 (2008) [Per J. Chico-Nazario, Third
70

Division].

71
Id. at 519. See also Webb v. De Leon, 317 Phil. 758 (1995) [Per J. Puno, Second Division].

See Manila Electric Company v. Atilano, G.R. No. 166758, June 27, 2012, 675 SCRA 112,
72

125 [Per J. Brion, Second Division].

73
G.R. Nos. 212140–41, January 21, 2015,
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/212140
-41.pdf> [Per J. Carpio, En Banc].

74
Id. at 20-22, citing Brinegar v. United States, 338 U.S. 160, 175-176 (1949).

75
See J. Leonen’s Separate Concurring Opinion in Estrada v. Office of the Ombudsman, et
al., G.R. Nos. 212140–41, January 21, 2015,
<http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2015/january2015/212140
-41_leonen.pdf> [Per J. Carpio, En Banc].

76
Rollo, p. 1432.

77
Id.

78
Id. at 1375.
79
Rep. Act No. 8293 (1997), sec.172.2.

80
Rep. Act No. 8293 (1997), sec.172.1 (l).

81
Pres. Decree No. 49 (1972), Decree on the Protection of Intellectual Property.

Article V, Section 26. After the first public dissemination or performance by authority
of the copyright owner of a work falling under subsections (A), (B), (C) and (D) of
Section 2 of this Decree, there shall, within three weeks, be registered and deposited
with the National Library, by personal delivery or by registered mail, two complete
copies or reproductions of the work in such form as the Director of said library may
prescribe. A certificate of registration and deposit for which the prescribed fee shall
be collected. If, within three weeks after receipt by the copyright owner of a written
demand from the director for such deposit, the required copies or reproductions are
not delivered and the fee is not paid, the copyright owner shall be liable to pay to the
National Library the amount of the retail price of the best edition of the work.

With or without a demand from the director, a copyright owner who has not made
such deposit shall not be entitled to recover damages in an infringement suit and
shall be limited to the other remedies specified in Section 23 of this
Decree.(Emphasis supplied)

82
See Pres. Dec. No. 49 (1972), sec. 2 and Rep. Act No. 8293 (1997), sec.172.1. However,
this court has already clarified that registration is not required for copyright to subsist. See
Columbia Pictures, Inc. vs. Court of Appeals,329 Phil. 875 (1996) [Per J. Regalado, En
Banc]. It was held that noncompliance with the registration requirement "merely limits the
remedies available to him and subjects him to the corresponding sanction."

83
Rep. Act No. 8293 (1997), sec. 175. Unprotected Subject Matter. - Notwithstanding the
provisions of Sections 172 and 173, no protection shall extend, under this law, to any idea,
procedure, system, method or operation, concept, principle, discovery or mere data as such,
even if they are expressed, explained, illustrated or embodied in a work; news of the day and
other miscellaneous facts having the character of mere items of press information; or any
official text of a legislative, administrative or legal nature, as well as any official translation
thereof. (n)

Robert Yale Libott, Round the Prickly Pear: The Idea-Expression Fallacy in a Mass
84

Communications World, 16 COPYRIGHT L. SYMP. 30, 32 (1966).

Id. at 32–39. See also Leslie A. Kurtz, Speaking to the Ghost: Idea and Expression in
85

Copyright, 47 U.MIAMI L. REV. 1221, 1222 (1992–1993).

Leslie A. Kurtz, Speaking to the Ghost: Idea and Expression in Copyright, 47 U. MIAMI L.
86

REV. 1221, 1241–1243 (1992-1993).

87
See Rep. Act No. 8293 (1997), Sec. 175.

88
G.R. No. 108946, January 28, 1999, 302 SCRA 225 [Per J. Mendoza, Second Division].

Section 2. The rights granted by this Decree shall, from the moment of creation, subsist
89

with respect to any of the following classes of works:

 ....

(M) Cinematographic works and works produced by a process analogous to

cinematography or any process for making audio-visual recordings[.]

Joaquin, Jr. v. Drilon, G.R. No. 108946, January 28, 1999, 302 SCRA 225, 239-240 [Per J.
90

Mendoza, Second Division].

Leslie A. Kurtz, Speaking to the Ghost: Idea and Expression in Copyright, 47 U. MIAMI L.
91

REV. 1221, 1243 (1992-1993).

Id. at 1244, citing Nichols v. Universal Pictures Corp., 45 F.2d 119, 122 (2d Cir. 1930);
92

Eichel v. Marcin, 241 F. 404, 409 (D.C.N.Y. 1913); and National Comics Publications, Inc. v.
Fawcett Publications, Inc., 191 F.2d 594, 600 (1951). However, the author of the article
maintains that there is no clear dividing line between idea and expression, p. 1245.

93
456 Phil. 474 (2003) [Per J. Corona, Third Division], citing Baker v. Selden, 101 U.S. 99
(1879). The main issue of the case revolved around patent infringement. However, the court
distinguished the three kinds of intellectual property rights from each other.

94
Id. at 493–495.

Joaquin, Jr. v. Drilon, G.R. No. 108946, January 28, 1999, 302 SCRA 225, 240 [Per J.
95

Mendoza, Second Division].

See Gale R. Adkins and Peter Haggart, Visual Materials on Local Television News
96

Programs, 7 J. BROAD. 227 (1962–1963); C. A. Tuggle and Suzanne Huffman, Live

Reporting in Television News: Breaking News or Black Holes?, 45 J. BROAD. & ELEC.
MEDIA335 (2001).

97
See Michael W. Baird, Copyrighting Newscasts: An argument for an Open Market, 3
FORDHAM ENT. MEDIA & INTELL. PROP. L.F. 481, 487–503 (1993), citing Pacific &
Southern Co. v. Duncan, 572 F. Supp. 1186 (N.D. Ga. 1983), affirmed in part, reversed in
part, 744 F.2d 1490 (11th Cir. 1984), Feist Publications, Inc. v. Rural Telephone Services
Co., 111 S. Ct. 1282 (1991), CNN v. Video Monitoring Servs. of Am., Inc., 940 F.2d 1471
(11th Cir. 1991); 949 F.2d 378 (11th Cir. 1991), Los Angeles News Service v. Tullo, 973 F.2d
791 (9th Cir. 1992).

98
572 F. Supp. 1186 (N.D. Ga. 1983) referred to as "Duncan I". On appeal to the United
States Court of Appeals for the Eleventh Circuit, the decision was partially reversed and
remanded.

99
Id. at 1191–1192.

Robert Yale Libott, Round the Prickly Pear: The Idea-Expression Fallacy in a Mass
100

Communications World, 16 COPYRIGHT L. SYMP. 30 1966, p. 48–49.

See Leslie A. Kurtz, Speaking to the Ghost: Idea and Expression in Copyright, 47 U.
101

MIAMI L. REV. 1221, 1236 (1992–1993),citing Peter Pan Fabrics, Inc. v. Martin Weiner
Corp., 274 F.2d 487, 489 (2d Cir. 1960). Kurtz said that "[t]he need to distinguish idea from
expression arises in instances of non-literal copying. The defendant has added something to
the plaintiff's material to reshape or recast it. In such a case, it is necessary to determine
how far ‘an imitator must depart from an undeviating reproduction to escape infringement.’"

World Intellectual Property Organization (WIPO), Neighboring Rights: Guide to the Rome
102

Convention and to the Phonograms Convention, WIPO, 1989, reprinted 1994 and 1999, 11,
<http://www.wipo.int/edocs/pubdocs/en/copyright/617/wipo_pub_617.pdf> (last visited on 29
January 2015).

See Herman Cohen Jehoram, The Nature of Neighboring Rights of Performing Artists,
103

Phonogram Producers and Broadcasting Organizations, 15 COLUM.-VLA J.L. & ARTS75,

75–76 (1990–1991).

See Herman Cohen Jehoram, The Nature of Neighboring Rights of Performing Artists,
104

Phonogram Producers and Broadcasting Organizations, 15 COLUM.-VLA J.L. & ARTS75, 84

(1990–1991).

See BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC

105

WORKS (1886),THE BRUSSELS CONVENTION RELATING TO THE DISTRIBUTION OF

PROGRAMME-CARRYING SIGNALS TRANSMITTED BY SATELLITE (1974),
CONVENTION FOR THE PROTECTION OF PRODUCERS OF PHONOGRAMS AGAINST
UNAUTHORIZED DUPLICATION OF THEIR PHONOGRAMS (1971), WORLD
INTELLECTUAL PROPERTY OFFICE COPYRIGHT TREATY (WCT) (1996), and the WIPO
PERFORMANCES AND PHONOGRAMS TREATY (WPPT) (1996). SEE ALSO
AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY
RIGHTS(TRIPS Agreement) (1994).

See World Intellectual Property Organization (WIPO), Understanding Copyright and

106

Related Rights, 17
<http://www.wipo.int/edocs/pubdocs/en/intproperty/909/wipo_pub_909.pdf> (last visited on
11 February 2015). The Rome Convention was the "first organized international response to
the need for legal protection of the three categories of related rights beneficiaries." The
Convention was finalized on October 26, 1961. It came into force on May 18, 1964. The
Philippines acceded to the Convention on June 25, 1984. It came into force in the Philippines
on September 25, 1984.

ABS-CBN Broadcasting Corporation v. Philippine Multi-Media System, Inc., et al., 596 Phil.
107

283, 297, 300 (2009) [Per J. Ynares-Santiago, Third Division].

108
Rollo, p. 68.

109
Id. at 1429–1431.

110
Id. at 1371.

111
Id. at 1368.

See ABS-CBN Broadcasting Corporation vs. Philippine Multi-Media System, Inc.,596 Phil.
112

283 (2009) [Per J. Ynares-Santiago, Third Division].

113
Rollo, pp. 1422 and 1432.
114
Id. at 68.

Habana v. Robles, 369 Phil. 764 (1999) [Per J. Pardo, First Division], citing 18 AM JUR 2D
115

§109, in turn citing Toksvig v. Bruce Pub. Co.,(CA7 Wis) 181 F2d 664 [1950]; Bradbury v.
Columbia Broadcasting System, Inc., (CA9 Cal) 287 F2d 478, cert den 368 US 801, 7 L ed
2d 15, 82 S Ct 19 [1961];Shipman v. R.K.O. Radio Pictures, Inc.,(CA2 NY) 100 F2d 533
[1938].

116
See Matthew D. Bunker, TRANSFORMING THE NEWS: COPYRIGHT AND FAIR USE IN
NEWS-RELATED CONTEXTS, 52 J. COPYRIGHT SOC'Y U.S.A. 309, 311 (2004–2005),
citing Iowa St. Univ. Research Found., Inc. v. Am. Broad. Cos., 621 F.2d 57, 60 (2d Cir.
1980). The four factors are similarly codified under the United States Copyright Act of 1976,
sec. 107:

§ 107 . Limitations on exclusive rights: Fair use Notwithstanding the provisions of

sections 106 and 106A, the fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other means specified by that
section, for purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an infringement of
copyright. In determining whether the use made of a work in any particular case is a
fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the
copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such
finding is made upon consideration of all the above factors.

117
Rep. Act No. 8293 (1997), sec. 185.

See Matthew D. Bunker, Transforming The News: Copyright And Fair Use In News-
118

Related Contexts, 52 J. COPYRIGHT SOC'Y U.S.A. 309, 311 (2004–2005).

119
Id., citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).

120
Id. at 317, citing Nunez v. Caribbean International News Corp., 235 F.3d 18 (1st Cir. 2000)
and Psihoyos v. National Examiner, 49 U.S.P.Q.2d 1766 (S.D. N.Y. 1998). Bunker proposes
the term "meta-use" for the kind of use that does not necessarily transform the original work
by adding expression, meaning, or message, but only changes the purpose of the work.
"[Psihoyos] distinguished between using the photograph to ‘show what it depict[ed]’ versus
commenting upon the photograph in some way. Certainly the Nunez use was for purposes of
commentary on the photos - the photos had engendered significant controversy, and the
news article reported on that controversy. Thus, the Nunez use was what we might refer to
as a ‘meta-use’ of the photos that went beyond simply using a photograph to illustrate a
news story - as in Psihoyos - and instead consisted of a news story about the photographs
themselves, or at least public reaction to them."

See Matthew D. Bunker, Transforming The News: Copyright And Fair Use In News-
121

Related Contexts, 52 J. COPYRIGHT SOC'Y U.S.A. 309, 314 (2004-2005), citing Nunez v.
Caribbean International News Corp., 235 F.3d 18 (1st Cir. 2000).

See John J. McGowan, Competition, Regulation, and Performance In Television

122

Broadcasting, 1967 WASH. U. L. Q. 499 (1967), and William T. Kelley, How Television
Stations Price Their Service, 11 J. BROAD. 313 (1966–1967).

123
See Michael W. Baird, Copyrighting Newscasts: An argument for an Open Market, 3
Fordham Ent. Media & Intell. Prop. L.F. 481, pp. 518–519. The author of the article argues
that "news broadcasts [should be taken] out of the realm of copyright entirely, creating
instead a separate ‘rebroadcast right’ for factual works of a time-limited nature. . . [in that]
[s]uch a right would allow the taping of newscasts, but protect the source of broadcasters'
incomes, i.e., the advertising revenues from the original broadcast." In essence, the author
recognizes broadcasting organizations’ right to rebroadcast, which we defined earlier as a
related or neighboring right of copyright.

See Instagram, available at <https://help.instagram.com/442610612501386> (last visited

124

on 8 February 2015).

125
See Vine, available at <https://vine.co> (last accessed on 8 February 2015).

See1 Second Everyday, available at <http://1secondeveryday.com> (last accessed on 8

126

February 2015).

127
Rollo, p. 1363.

Joaquin, Jr. v. Drilon, G.R. No. 108946, January 28, 1999, 302 SCRA 225, 238, citing 18
128

C.J.S. 161 [Per J. Mendoza, Second Division]. See also Pearl & Dean (Phil.), Incorporated v.
Shoemart, Incorporated, 456 Phil. 474 (2003) [Per J. Corona, Third Division]; Ching v.
Salinas, Sr., 500 Phil. 628 (2005) [Per J. Callejo, Sr., Second Division].

See Ho Wai Pang v. People, G.R. No. 176229, October 19, 2011, 659 SCRA 624, 640
129

[Per J. Del Castillo, First Division];People v. Chua, G. R. No. 187052, September 13, 2012,
680 SCRA 575, 592–591 [Per J. Villarama. First Division].

See Go v. The Fifth Division of Sandiganbayan, 558 Phil. 736, 744 (2007) [Per J. Ynares-
130

Santiago, Third Division].

Dela Torre v. Commission on Elections, 327 Phil. 1144, 1150–1151 (1996) [Per J.
131

Francisco, En Banc].

Nancy Travis Wolfe, MALA IN SE: A Disappearing Doctrine, 19 Criminology 131 1981–
132

1982, p. 133.

1 William L. Clark et al., A Treatise on the Law of Crimes, The Criminal Intent and
133

Capacity to Commit Crime, 5th ed., 59, 60 (1952).

 Arthur D. Greenfield, MALUM PROHIBITUM: Moral, Legal and Practical Distinctions
134

Between Mala Prohibita and Mala in Se and Danger to Civic Conscience When Former Are
Too Numerous, 7 A.B.A. J. 493 (1921).

135
People v. Lacerna, 344 Phil. 100, 122–123 (1997) [Per J. Panganiban, Third Division],
citing U.S. v. Go Chico, 14 Phil. 128 (1909) [Per J. Moreland, En Banc].

136
Id.

137
In People v. Ballesteros, 349 Phil. 366, 374–375 (1998) [Per J. Romero, Third Division],
this court distinguished motive from intent: "Motive is the moving power which impels one to
action for a definite result. Intent, on the other hand, is the purpose to use a particular means
to effect such result. Motive alone is not proof of a crime. In order to tip the scales in its favor,
intent and not motive must be established by the prosecution. Motive is hardly ever an
essential element of a crime. A man driven by extreme moral perversion may be led to
commit a crime, without a real motive but a just for the sake of committing it. Along the same
line, a man who commits a crime with an apparent motive may produce different results, for
which he is punished. As held in a line of cases, the rule is well-settled that the prosecution
need not prove motive on the part of the accused when the latter has been positively
identified as the author of the crime. Lack or absence of motive for committing the crime
does not preclude conviction thereof where there were reliable witnesses who fully and
satisfactorily identified the accused as the perpetrator of the felony."

See Regina v. Laurier Office Mart Inc., 1994 Carswellont 4309, 58 C.P.R. (3d) 403,
138

Canada; United States Code, Title 17, chapter 5, sec. 506, Copyright, Patents, and Design
Act of 1988, United Kingdom; EMI Records (Ireland) Ltd and others v. The Data Protection
Commissioner (notice party, Eircom Plc). [2013] 1 C.M.L.R. 7.

139
Regina v. Laurier Office Mart Inc.,1994 Carswellont 4309, 58 C.P.R. (3d) 403, Canada, p.
7.

140
Id. at 8.

141
See United States Code, Title 17, chapter 5, sec. 506.

Ting Ting Wu, The New Criminal Copyright Sanctions: A Toothless Tiger?, IDEA: The
142

Journal Of Law And Technology, 39 J.L. & TECH. 527 (1999).

143
SeeLydia Pallas Loren, Digitization, Commodification, Criminalization: The Evolution Of
Criminal Copyright Infringement And The Importance Of The Willfulness Requirement, 77
WASH. U. L. Q. 835 (1999). "While The NET Act retained the element of willfulness, it
created a new type of criminal infringement that does not require a profit motive. Now, to be
criminal, infringement must be willful and be either (1) for purposes of commercial advantage
or private financial gain, or (2) infringement through the reproduction or distribution, including
by electronic means, during any 180-day period, of one or more copies or phonorecords of
one or more copyrighted works, which have a total retail value of more than $1,000. This
latter category of infringement can be referred to as non- commercially motivated
infringement."

144
See Dane S. Ciolino and Erin A. Donelon, Questioning Strict Liability In Copyright, 54
Rutgers L. Rev. 351 2001-2002, p. 409. The authors argue against the application of strict
liability to copyright law. "[S]trict liability is neither justified nor necessary in copyright law, but
rather is rooted in deeply flawed historical, conceptual, and economic misconceptions about
intellectual property in general and copyright in particular. Worse, strict liability is affirmatively
harmful to copyright's utilitarian goals of providing incentives to authors to create, and
providing greater public access to works of authorship.", p. 351.

Kent Sinclair, Jr., 58 Cal. L. Rev. 940 1970, p. 944, citing M. NIMMER, NIMMER ON
145

COPYRIGHT § 3 (1970). U.S. Copyright law seems to interchange "absolute liability" with
"strict liability."

146
The earliest copyright law in the Philippines was the Spanish Law on Intellectual Property
of January 10, 1879 as extended by the Royal Decree of May 5, 1897. After the Philippines
was ceded to the United States, the United States Copyright Law replaced the Spanish law.
On March 6, 1924, Act No. 3134 or "An Act to Protect Intellectual Property" was enacted by
the Philippine legislature. On November 14, 1972, Presidential Decree No. 49was enacted
and superseded Act No. 3134. Subsequently, Republic Act No. 8293 or the Intellectual
Property Code took effect on January 1, 1998. See Vicente B. Amador, Intellectual Property
Fundamentals, C&E Publishing, 2007, p. 225. The Copyright clause in the United States
Constitution, as well as subsequent federal laws were based on England’s Statute of Anne.
U.S. Copyright laws and courts, however, have generally upheld a strict liability regime. See
Dane S. Ciolino and Erin A. Donelon, Questioning Strict Liability In Copyright, 54 Rutgers L.
Rev. 351 2001-2002, pp. 355-356.

147
People v. Lacerna, 344 Phil. 100, 122 (1997) [Per J. Panganiban, Third Division].

148
Rollo, p. 1369.

149
Under CONST. (1987), art. VII, sec. 21, a treaty or international agreement is transformed
into domestic law when "concurred in by at least two-thirds of all the Members of the
Senate."

150
369 Phil. 764 (1999) [Per J. Pardo, First Division].

151
329 Phil. 875 (1996) [Per J. Regalado, En Banc].

152
369 Phil. 764 (1999) [Per J. Pardo, First Division].

217.3. Any person who at the time when copyright subsists in a work has in his possession
153

an article which he knows, or ought to know, to be an infringing copy of the work for the
purpose of:

(a) Selling, letting for hire, or by way of trade offering or exposing for sale, or hire, the
article;

(b) Distributing the article for purpose of trade, or for any other purpose to an extent
that will prejudice the rights of the copyright owner in the work; or

(c) Trade exhibit of the article in public, shall be guilty of an offense and shall be
liable on conviction to imprisonment and fine as above mentioned. (Sec. 29, P.D. No.
49a)
 Lydia Pallas Loren, Digitization, Commodification, Criminalization: The Evolution Of
154

Criminal Copyright Infringement And The Importance Of The Willfulness Requirement, 77

WASH. U. L. Q. 835, 872–873 (1999).

Columbia Pictures v. Court of Appeals, 329 Phil. 875, 926 (1996) [En Banc, per J.
155

Regalado]. See also Habana v. Robles, 369 Phil. 764 (1999) [Per J. Regalado, En Banc].

156
Rollo, p. 1378.

157
See Pacific Rehouse Corporation v. Court of Appeals, G.R. No. 199687, March 24, 2014

<http://sc.judiciary.gov.ph/jurisprudence/2014/march2014/199687.pdf> [PerJ. Reyes, First

Division].

Republic Gas Corporation v. Petron Corporation, G.R. No. 194062, June 17, 2013, 698
158

SCRA 666 [Per J. Peralta, Second Division].

159
Id. at 681–682.

Ching v. Secretary of Justice, G.R. No. 164317, February 6, 2006, 481 SCRA 609, 636–
160

637 [Per J. Callejo, Sr., First Division].

161
Rollo, pp. 573–575.

162
Id. at 574–575.

163
Id. at 231.

164
Id.

A news embargo is defined as "an agreement between the source and the media
165

organisation: The latter is provided with news that ought not to be published until a certain
date." See Sonja Gruber, "News Embargoes", - Under threat, but not extinct", Reuters
Institute for the Study of Journalism, University of Oxford, p. 6 and 46-47 (2014), available at
<https://reutersinstitute.politics.ox.ac.uk/sites/default/files/News%20Embargoes%20-
%20Under%20threat,%20but%20not%20extinct%20-
%20How%20an%20ancient%20press%20tool%20survives%20in%20the%20modern%20me
dia%20world.pdf> (last accessed on20 February 2015).

166
See Reuters, Handbook of Journalism, A Guide to Reuters Operations, available at:
<http://handbook.reuters.com/?title=Corrections,_Refiles,_Kills,_Repeats_and_Embargoes>
(last accessed on 20 February 2015).

According to Reuters: "A TRANSMISSION EMBARGO restricts publication to all

clients until a time specified. A PUBLICATION EMBARGO transmits the story
immediately to MEDIA CLIENTS

ONLY with restrictions to prevent them publishing or broadcasting the story until a
time specified.
 The story is then issued to desktop clients (Eikon, etc.) at the embargo time using the
Lynx Editor embargo function. However, in the age of real time news websites and
social media, Reuters no longer uses PUBLICATION embargoes. ALL embargoes
are now TRANSMISSION embargoes."

167
Rollo, p. 117.

168
Id. at 134.

169
REV. PEN. CODE, art. 17.

170
People v. Ballesta, 588 Phil. 87 (2008). See REV. PEN. CODE, art. 8.

171
Bahilidad v. People, 629 Phil. 567, 575 (2010) [Per J. Nachura, Third Division].

THIRD DIVISION

G.R. No. 168111 July 4, 2008

ANTONIO TAN, DANILO DOMINGO and ROBERT LIM, petitioners,

vs.
AMELITO BALLENA, ZENAIDA BORLONGAN, ANNALYN VILLAFUERTE, ROGELIO
VELASQUEZ, EDMONDO VILLAMOR, MERCY SANTOMIN, REYNALDO RAMOS, THESS
GONZALES, FORTUNATO GATACILO, RONALDO NICOL, MARIVIC NICOL, RUEL DISTOR,
MARYJEAN GRANADA, ARNOLD AGUSTIN, JR., MALOU SALAPONG, THERESA JALMASCO
(SIC), ANTIOCO MARAGANAS, ROLAND LAROCO, WILFREDO DICHOSO, JOSEPH FERRER,
GUILLERMO PACSON, JR., ROMEO JALAMASCO, LINO CAGAS, DIANA DE LA CRUZ, JERRY
ARCA, JAIME SANTOS, MANUEL REGALA, JUANITO GALONIA, RUSSEL BORADO, RODY
VILLAGFUERTE (SIC), MA. CRISTINA MADRIDEO, VON MADRIDEO, AMELIA CUEVILLAS,
EVANGELINE DOMINGO, FELIMAR VILLAFUERTE, ANTONIO SALAPONG, ELINO MALAQUE,
JR., EMILIO TRINIDAD, MA. ELENA HERNANDEZ, JHONNY GRAJO, EDITHA FLORESTA,
ORLANDO MENDOZA, SONIA ALONZO, GREGORIO MARIANO, LIPA ALDRIN, FRANCO
SEVILLA, MYRISIA NARCISO, JOSEPHINE GERONIMO, MARILOU BORDADO, ELISA
FRANCISCO, LOLITA NARCISO, ANGELITA DOMINGO, MA. THERESA TORRES, IRERIA
CRUZ, APOLINARIO TRINIDAD, ROMULO BULAONG, FELEXBERTO (SIC) SANTIAGO,
MARICEL MENDOZA, JUANITO CRUZ, FIDEL PASCUAL, ROWENA DE LA CRUZ, DIVINA
PAGTALUNAN, PACENCIA DOMINGO, MARILOU VICTORIA, GUILLERMO CRISOSTOMO, JR.,
ANITA CRISOSTOMO, ELIZABETH CASTRO, ENRIQUE BUGARIN, AUGUST BULAONG,
ELMER VILLAMOR, ROMEO UDIONG, NICK OTARA, ERLANDO RICOHERMOSO, RIZALINA
DE LA CRUZ, ANTONIO JAO, JR., ROSALIE JINGCO, ALFREDO SINGUELAS, RONALD
SANDIL, ALMA ENRIQUEZ, MICHAEL RITCHIE DE LA CRUZ, JANE JAVIER, TERESITA
SACDALAN, MARCELINO ESTRELLA, ARTUADOR JUANITO (SIC), JR., LYDIA PAGTALUNAN,
ROSINDO MARAGAÑAS, DANILO SEGUNDO, ROMEO CRUZ, ANNALIZA SELENCIO, ELLEN
LABAJO, MA. ELENA SANTIAGO, ARNULFO SANTIAGO, MA. LUISA SANTOS, SERGELIO
PAGDANGANAN, DANTE VICTORIA, FELIPINAS (SIC) EMPHACIS (SIC), NOEL OLIVERA,
JOEY AUSTRIA, PHILIP MONSUYAC, RONALD PASCUAL, ZENAIDA SAKAY, PAULO SOTTO,
MA. LEDY MANLAPIG, RODOLFO JUNTO, ALDWIN CALALANG, CHARITO REYES, PAULINA
CASTOR, VICTOR MARCELINO, CARINA RAUZA, VICTOR DELOS SANTOS, EVANGELINE
PAULINO, RENAN LAYSON, RUDY DONOR, REBECCA PASOQUIN, EMETERIA
PAGTALUNAN, FERDINAND MANANSALA, JOCELYN BRINGAS, JESUS GATACILO, IMELDA
VALENCIA, MACARIO RICABO, ISID NICASIO, CHRISTOPHER DELA CRUZ, ERNESTO
FOMBO, ANGELO GIANAN, CRISTINA STA. ANA, DANTE SEMBILLO, MARILOU AGCAOILI,
CRISTINA SANTOS, CARMELITA GARSUTA, LOURDES MATOTE, SONNY DE LA CRUZ,
ANGELITA VILLAFUERTE, MARIO SANTOS, ALBERTO NAVARRO, RITA DELA CRUZ,
ARMANDO CASTRO, ERWIN CASTRO, ALFREDO NATIVIDAD, PURISIMA TRINIDAD,
ROBERTO PARAISO, GREGORIO BUMA-AT, MARIA TRINIDAD, EMMA SEGUNDO, FREDDIE
SEGUNDO, NARCISO HERERO (SIC), EMILIANO NUÑEZ, VIOLETA AVILA, RIZA REAL, CHITO
ANG, MARIANO MANOLITA, JOVENCIO UNDALOK, NILDA NELIA DEL ROSARIO, ERNESTO
MARCELINO, EMELITA ALBERTO, YOLANDA AGUSTIN, ARNOLD ALVERO, NENITA DIGA,
MICHELLE DIGA, MA. ARA PALELEO, FLORA MORALES, ROBERRO (SIC) RAMOS, JR.,
JOJO GADO, FLORA PAGDANGANAN, ESTRELITA MAPILISAN, FLORENCIO BIHASA,
MILAGROS SAN PEDRO, JONATHAN LOPEZ, LANI MEDALLA, MARIVIC ENRIQUEZ, CHONA
MANUMBAS, LEILANI LOPEZ, FELIX ENRIQUEZ, ANECITO MEDALLA, FRANCIS BULAONG,
CARLOS DELA CRUZ, CRISANTA ASPIRAS, ARNOLD ALMERO, ADELIA SURIO, CRISANTO
CRUZ, and ANALYN BERNABE, respondents.

DECISION

CHICO-NAZARIO, J.:

Assailed in this Petition for Review on Certiorari1 under Rule 45 of the Rules of Court are the
Decision2 and Resolution3 of the Court of Appeals dated 30 September 2004 and 9 May 2005,
respectively, in CA-G.R. SP No. 79101. The appellate court's Decision set aside the Resolutions4 of
the Department of Justice (DOJ) dated 19 March 2002 and 9 August 2002, and reinstated the Final
Resolution5 of the Provincial Prosecutor in I.S. Nos. 01-03-1007, 01-04-1129 and 01-04-1130, which
ordered the filing of two (2) informations against petitioners Antonio Tan, Danilo Domingo and
Robert Lim. The appellate court's Resolution denied petitioners' Motion for Reconsideration.

The factual and procedural antecedents of the case are as follows:

Petitioners Antonio Tan, Danilo Domingo and Robert Lim were officers of Footjoy Industrial
Corporation (Footjoy), a domestic corporation engaged in the business of manufacturing shoes and
other kinds of footwear, prior to the cessation of its operations sometime in February 2001.

On 19 March 2001, respondent Amelito Ballena,6 and one hundred thirty-nine (139) other employees
of Footjoy, filed a Joint Complaint-Affidavit7 before the Office of the Provincial Prosecutor of Bulacan
against the company and petitioners Tan and Domingo in their capacities as owner/president and
administrative officer, respectively.8

The Complaint-Affidavit alleged that the company did not regularly report the respondent employees
for membership at the Social Security System (SSS) and that it likewise failed to remit their SSS
contributions and payment for their SSS loans, which were already deducted from their wages.

According to respondents, these acts violated Sections 9, 10, 22 and 24, paragraph (b) of Republic
Act No. 1161, as amended by Republic Act No. 8282;9 as well as Section 28, paragraphs (e), (f), and
(h) thereof, in relation to Article 315 of the Revised Penal Code, the pertinent portions of which read:

SEC. 9. Coverage. - (a) Coverage in the SSS shall be compulsory upon all employees not
over sixty (60) years of age and their employers: x x x Provided, finally, That nothing in this
Act shall be construed as a limitation on the right of employers and employees to agree on
and adopt benefits which are over and above those provided under this Act.
SEC. 10. Effective Date of Coverage. - Compulsory coverage of the employer shall take
effect on the first day of his operation and that of the employee on the day of his
employment: x x x.

SEC. 22. Remittance of Contributions. -- (a) The contribution imposed in the preceding
section shall be remitted to the SSS within the first ten (10) days of each calendar month
following the month for which they are applicable or within such time as the Commission may
prescribe. Every employer required to deduct and to remit such contributions shall be liable
for their payment and if any contribution is not paid to the SSS as herein prescribed, he shall
pay besides the contribution a penalty thereon of three percent (3%) per month from the date
the contribution falls due until paid. If deemed expedient and advisable by the Commission,
the collection and remittance of contributions shall be made quarterly or semi-annually in
advance, the contributions payable by the employees to be advanced by their respective
employers: Provided, That upon separation of an employee, any contribution so paid in
advance but not due shall be credited or refunded to his employer.

(b) The contributions payable under this Act in cases where an employer refuses or neglects
to pay the same shall be collected by the SSS in the same manner as taxes are made
collectible under the National Internal Revenue Code, as amended. Failure or refusal of the
employer to pay or remit the contributions herein prescribed shall not prejudice the right of
the covered employee to the benefits of the coverage.

The right to institute the necessary action against the employer may be commenced within
twenty (20) years from the time the delinquency is known or the assessment is made by the
SSS, or from the time the benefit accrues, as the case may be.

(c) Should any person, natural or juridical, defaults in any payment of contributions, the
Commission may also collect the same in either of the following ways:

1. By an action in court, which shall hear and dispose of the case in preference to
any other civil action; x x x.

SEC. 24. Employment Records and Reports. -

xxxx

(b) Should the employer misrepresent the true date of employment of the employee
member or remit to the SSS contributions which are less than those required in this
Act or fail to remit any contribution due prior to the date of contingency, resulting in a
reduction of benefits, the employer shall pay to the SSS damages equivalent to the
difference between the amount of benefit to which the employee member or his
beneficiary is entitled had the proper contributions been remitted to the SSS and the
amount payable on the basis of the contributions actually remitted: x x x.

SEC. 28. Penal Clause. -

xxxx

(e) Whoever fails or refuses to comply with the provisions of this Act or with the rules
and regulations promulgated by the Commission, shall be punished by a fine of not
less than Five thousand pesos (P5,000.00) nor more than Twenty thousand pesos
 (P20,000.00), or imprisonment for not less than six (6) years and one (1) day nor
more than twelve (12) years, or both, at the discretion of the court: Provided, That,
where the violation consists in failure or refusal to register employees or himself, in
case of the covered self-employed, or to deduct contributions from the employees'
compensation and remit the same to the SSS, the penalty shall be a fine of not less
Five thousand pesos (P5,000.00) nor more than Twenty thousand pesos
(P20,000.00) and imprisonment for not less than six (6) years and one (1) day nor
more than twelve (12) years.

(f) If the act or omission penalized by this Act be committed by an association,

partnership, corporation or any other institution, its managing head, directors or
partners shall be liable to the penalties provided in this Act for the offense.

xxxx

(h) Any employer who after deducting the monthly contributions or loan amortizations
from his employee's compensation, fails to remit the said deductions to the SSS
within thirty (30) days from the date they became due shall be presumed to have
misappropriated such contributions or loan amortizations and shall suffer the
penalties provided in Article Three hundred fifteen of the Revised Penal Code.

Art. 315. Swindling (estafa). - Any person who shall defraud another by any of the means
mentioned hereinbelow shall be punished by:

xxxx

1. With unfaithfulness or abuse of confidence, namely:

xxxx

(b) By misappropriating or converting, to the prejudice of another, money, goods, or

any other personal property received by the offender in trust or on commission, or for
administration, or under any other obligation involving the duty to make delivery of or
to return the same, even though such obligation be totally or partially guaranteed by
a bond; or by denying having received such money, goods, or other property.

Respondents also alleged their entitlement to actual and exemplary damages and attorney's fees.

In their Joint Counter-Affidavit,10 petitioners Tan and Domingo blamed the economic distress that
beset their company for their failure to timely pay and update the monthly SSS contributions of the
employees. They alleged that the company's dire situation became even more aggravated when the
buildings and equipment of Footjoy were destroyed by fire on 4 February 2001.11 This incident
eventually led to the cessation of the company's operations. Because of this, some of the company's
employees tried to avail themselves of their SSS benefits but failed to do so. It was then that the
employees filed their complaint.

Petitioners Tan and Domingo thereafter underlined their good faith and lack of criminal culpability
when they acknowledged their fault and demonstrated their willingness to pay their obligations by
executing a memorandum of agreement with the SSS on 10 April 2001, the pertinent portions of
which read:
 April 10, 2001

FOOTJOY INDUSTRIAL CORPORATION

Antonio Tan
President
Mercado St., Guiguinto, Bulacan

Dear Mr. Antonio Tan,

Pursuant to Office Order No. 141-V dated February 2, 1995, your application to pay on
installment the amount of P5,227,033.66 representing SS premium contribution and
penalties for the period August 2000 up to January 2001 is hereby approved subject,
however, to the following terms and conditions:

1. That the amount of P5,227,033.66 be paid in twenty-four (24) monthly installment (sic):

xxxx

2. Upon payment, you are hereby directed to submit to us within three days the official
receipt as proof of payment of the monthly installment; and,

3. That in the event of default in the payment of at least two (2) monthly installments or non-
compliance with the payment plan, the employer's total outstanding obligations shall become
due and demandable without need of further notice otherwise, we will pursue legal action
against you.

Please be guided accordingly.

Very truly yours,

(Signed) Maylene M. Sanchez

Branch Head

CONFORME:

(Signed) Antonio Tan12

On 17 May 2001, the Assistant Provincial Prosecutor issued a Joint Resolution,13 which found
probable cause to charge Footjoy, Antonio Tan, and Danilo Domingo with violations of Sections 9,
10 and 24, paragraph (b) in relation to Section 28, paragraphs (e), (f) and (h) of the Social Security
Law. On the other hand, the charge for the violation of Article 315, paragraph 1(b) of the Revised
Penal Code was dismissed, as the same was deemed absorbed by the violations under the SSS
Law, but the penalty imposed by the former law would be applied whenever appropriate. The
Provincial Prosecutor approved the above Resolution on 29 May 2001 and affirmed the filing of
informations against petitioners Tan and Domingo.

On 14 June 2001, respondents filed a Motion14 to implead five additional party respondents
purportedly for being "owners and/or responsible officers" of Footjoy, in accordance with the above-
mentioned Section 28 paragraph (f) of the SSS Law.
Meanwhile, on 29 June 2001, petitioners filed a Motion for Reconsideration15 of the above Joint
Resolution.

The Assistant Provincial Prosecutor issued a Final Resolution16 on 20 August 2001, the dispositive
portion of which provides:

Accordingly, the original resolution is modified by impleading therein as additional

respondent Robert Lim.17On the other hand, two informations (one count each) for violation
of Sec. 9 in relation to Sec. 10 and, Sec. 24(b) should be prepared for filing in court. All the
rest found in the original resolution are maintained.

On 20 September 2001, the Provincial Prosecutor issued a Supplementary Resolution,18 which

clarified the last statement in the Final Resolution, stating that:

Let it, therefore, be understood and for which this supplementary resolution is being issued,
that the last recommendation of Pros. F. F. Malapit was approved as [to] the filing of two
informations as contained in his approved original resolution, that is, violations of Sec. 9, 10
& 24(b) in relation to Sec. 28, pars. (e) (f) and (h) of R.A. 1161, as amended.

Thus, on 28 September 2001, the Provincial Prosecutor filed two informations against petitioners
Tan, Domingo and Lim in Branch 18 of the Regional Trial Court (RTC) of Bulacan. Criminal Case
No. 2592-M-200119 charged petitioners Tan, Domingo and Lim with violation of Section 9 in relation
to Section 10 and Section 28, paragraph (e) of the Social Security Law. On the other hand, Criminal
Case No. 2593-M-2001 charged petitioners with violation of Section 24 paragraph (b) in relation to
Section 28, paragraph (h) of said law.

On 13 November 2001, petitioners filed a Petition for Review20 with the DOJ, alleging, inter alia, that
the Assistant Prosecutor committed grave and manifest error when he found probable cause to
charge them with the alleged offenses.

Due to the pendency of the above petition, petitioners filed with the RTC of Bulacan a motion for the
suspension of their scheduled arraignment21 in the criminal cases, in accordance with Section 11,
paragraph (c) of Rule 11622 of the Revised Rules of Criminal Procedure.23

On 19 March 2002, the DOJ resolved to grant the petition for review,24 stating:

WHEREFORE, the assailed resolution is REVERSED. The Provincial Prosecutor of Bulacan

is hereby directed to cause the withdrawal of the informations for violation of the Social
Security Law earlier filed against respondents Antonio Tan, Danilo Domingo, and Robert Lim
and to report the action thereon within ten (10) days from receipt thereof.

Respondents filed a Motion for Reconsideration25 of the DOJ resolution, but the same was denied in
a Resolution26dated 9 August 2002.

On 16 October 2002, respondents filed with the Court of Appeals a Petition for Certiorari27 under
Rule 65 of the Revised Rules of Court, which was docketed as CA-G.R. SP No. 79101.
Respondents claimed that the DOJ committed grave abuse of discretion amounting to lack or excess
of jurisdiction in finding that no probable cause existed to charge petitioners Tan, Domingo and Lim
with violations of the SSS Law; that the allegation of petitioners' failure to report respondents to the
SSS for coverage is not supported by evidence; and that charges [for the violation] of a special law
such as the Social Security Act can be overcome by a show of good faith and lack of intent to
commit the same.

In a Resolution28 issued on 29 November 2002, the Court of Appeals dismissed outright the above
petition because only respondents Zenaida Borlongan and Francis Bulaong, who did not possess a
special power of attorney empowering them to sign on behalf of the other respondents, signed the
certification of non-forum shopping. The petition was also filed only on 16 October 2002 or one day
beyond the reglementary period, which ended on 15 October 2002.

Respondents then filed a Motion for Reconsideration29 of the appellate court's resolution, contending
that the procedural lapses committed by their counsel were honest and excusable mistakes and that
the same should give way to their meritorious case. They, likewise, prayed for the admission of a
Special Power of Attorney30 that authorized Mercy Santomin, Zenaida Borlongan and Ronaldo Nicol
to sign court pleadings and documents on their behalf.

Before resolving the respondents' motion, the Court of Appeals directed the respondents to amend
their petition by impleading as party petitioners the two hundred thirty-eight (238) other employees of
Footjoy, whose names were not included in the title of the original petition, but were merely
contained in an annexed document.31 On 13 March 2003, respondents filed their amended petition,
which was signed by only one hundred eighty employees.32

On 2 June 2003, the Court of Appeals rendered a Resolution33 which granted the respondents'
Motion for Reconsideration of the 29 November 2002 resolution and admitted the amended petition.

After requiring the parties to comment, the Court of Appeals issued the assailed Decision dated 30
September 2004, the dispositive portion of which reads:

WHEREFORE, premises considered, the resolutions of the Department of Justice dated

March 19, 2002 and August 9, 2002 are VACATED and SET ASIDE, while the final
resolution of the Provincial Prosecutor of Bulacan dated August 20, 2001 is REINSTATED.34

In reversing the DOJ resolutions, the Court of Appeals ruled that the agency acted with grave abuse
of discretion when it committed a palpable mistake in dismissing the charges against petitioners. The
appellate court found that petitioners were indeed remiss in their duty to remit the respondents' SSS
contributions in violation of Section 28(h) of the Social Security Law. The petitioners' claim of good
faith and the absence of criminal intent should not have been considered, as these were evidentiary
in nature and should thus be more properly proved in a trial. Furthermore, the appellate court
declared that said defenses are unavailing in crimes punishable by a special law, which are
characterized as mala prohibita. In these crimes, it is enough that they were done freely and
consciously and that the intent to commit the same need not be proved.

Petitioners moved for a reconsideration35 of the above decision, but the same was denied by the
Court of Appeals in a Resolution36 dated 9 May 2005, the dispositive portion of which reads:

WHEREFORE, for lack of merit, the motion for reconsideration is DENIED.

Petitioners now come before us, pleading that we reverse the assailed decision and resolution of the
Court of Appeals as we rule on the following issues:

I.
 WHETHER OR NOT THE COURT OF APPEALS COMMITTED GRIEVOUS ERROR AND
ACTED WITHOUT JURISDICTION WHEN IT GAVE DUE COURSE TO THE
RESPONDENTS' PETITION FOR CERTIORARI DESPITE THE FACT THAT IT WAS FILED
OUT [OF] TIME.

II.

WHETHER OR NOT THE COURT OF APPEALS COMMITTED GRIEVOUS ERROR WHEN

IT GAVE DUE COURSE TO THE RESPONDENTS' PETITION
FOR CERTIORARI DESPITE THE FACT THAT THE TWO (2) SIGNATORIES THEREAT
WERE NOT ABLE TO SHOW THAT THEY WERE DULY AUTHORIZED BY THE OTHER
PETITIONERS TO FILE THE PETITION ON THEIR BEHALF.

III.

WHETHER OR NOT THE COURT OF APPEALS COMMITTED SERIOUS ERROR WHEN

IT REVERSED THE RESOLUTION OF THE DOJ WHICH FOUND OUT THAT THE
PETITIONERS COULD NOT BE INDICTED FOR ANY VIOLATION OF THE SSS LAW FOR
WANT OF PROBABLE CAUSE.37

Petitioners' case centers on the alleged error of the Court of Appeals in giving due course to a
formally defective petition. Respondents, on the other hand, pray for a liberal interpretation of the
rules in pleading for their cause.

We find that the petition lacks merit.

Procedurally, petitioners argue that the Court of Appeals gravely erred in taking cognizance of the
respondents' Petition for Certiorari even if the original petition was filed one day beyond the
reglementary period allowed by the rules, and the two signatories therein were not shown to have
been properly authorized by their co-petitioners to file the petition.

Section 1, Rule 65 of the Rules of Court provides for the requirements for filing a Petition
for Certiorari, namely:

Section 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor
any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging the facts with certainty and
praying that judgment be rendered annulling or modifying the proceedings of such tribunal,
board or officer, and granting such incidental reliefs as law and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum shopping as provided in the third
paragraph of Section 3, Rule 46. (Emphases ours.)

Specifically, the requirement of verification is contained in Section 4, Rule 7 of the Rules of Court, to
wit:
 Sec. 4. Verification. Except when otherwise specifically required by law or rule, pleadings
need not be under oath, verified or accompanied by affidavit.

A pleading is verified by an affidavit that the affiant has read the pleading and that the
allegations therein are true and correct of his personal knowledge or based on authentic
records.

A pleading required to be verified which contains a verification based on "information and

belief" or upon "knowledge, information and belief," or lacks a proper verification, shall be
treated as an unsigned pleading.

On the other hand, the fourth paragraph of Section 3, Rule 46 of the Rules of Court provides:

The petitioner shall also submit together with the petition a sworn certification that he has not
theretofore commenced any other action involving the same issues in the Supreme Court,
the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is
such other action or proceeding, he must state the status of the same; and if he should
thereafter learn that a similar action or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or
agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency
thereof within five (5) days therefrom.

Finally, the reglementary period within which a Petition for Certiorari must be filed is provided for
under the first paragraph of Section 4, Rule 65,38 to wit:

The petition shall be filed not later than sixty (60) days from notice of the judgment, order or
resolution. In case a motion for reconsideration or new trial is timely filed, whether such
motion is required or not, the petition shall be filed not later than sixty (60) days counted
from the notice of the denial of the motion. (Emphasis ours.)

In the present case, only two employees signed the original Petition's verification and certification of
non-forum shopping and the same was filed one day beyond the period allowed by the rules. The
appellate court initially resolved to dismiss the original petition precisely for these reasons in a
Resolution dated 29 November 2002. When asked to reconsider, the appellate court ordered the
filing of an amended petition in order to include all the original complainants. An amended petition
was then filed in compliance with the said order, but only one hundred eighty (180) of the two
hundred forty (240) original complainants signed the verification and certification of non-forum
shopping. The Court of Appeals then granted the motion for reconsideration and resolved to
reinstate the petition. Thereafter, on 30 September 2004, the assailed decision that upheld the filing
of the informations against the petitioners was issued.

This Court finds no fault in the assailed actions of the Court of Appeals.

It is a well-settled principle that rules of procedure are mere tools designed to facilitate the
attainment of justice. Their strict and rigid application, which would result in technicalities that tend to
frustrate rather than promote substantial justice, must always be eschewed.39 In deciding a case, the
appellate court has the discretion whether or not to dismiss the same, which discretion must be
exercised soundly and in accordance with the tenets of justice and fair play, taking into account the
circumstances of the case.40 It is a far better and more prudent cause of action for the court to
excuse a technical lapse and afford the parties a review of the case to attain the ends of justice,
rather than dispose of the case on technicality and cause grave injustice to the parties, giving a false
impression of speedy disposal of cases while actually resulting in more delay, if not a miscarriage of
justice.41

The Court of Appeals committed no reversible error when it gave due course to the amended
petition despite the signing of the verification and certification of non-forum shopping of only some,
and not all, of the original complainants.

Under justifiable circumstances, we have already allowed the relaxation of the requirements of
verification and certification so that the ends of justice may be better served.42 Verification is simply
intended to secure an assurance that the allegations in the pleading are true and correct and not the
product of the imagination or a matter of speculation, and that the pleading is filed in good faith;
while the purpose of the aforesaid certification is to prohibit and penalize the evils of forum
shopping.43

In Torres v. Specialized Packaging Development Corporation,44 we ruled that the verification

requirement had been substantially complied with despite the fact that only two (2) out of the twenty-
five (25) petitioners have signed the petition for review and the verification. In that case, we held that
the two signatories were unquestionably real parties-in-interest, who undoubtedly had sufficient
knowledge and belief to swear to the truth of the allegations in the Petition.

In Ateneo de Naga University v. Manalo,45 we also ruled that there was substantial compliance with
the requirement of verification when only one of the petitioners, the President of the University,
signed for and on behalf of the institution and its officers.

Similarly, in Bases Conversion and Development Authority v. Uy,46 we allowed the signature of only
one of the principal parties in the case despite the absence of a Board Resolution which conferred
upon him the authority to represent the petitioner BCDA.

In the present case, the circumstances squarely involve a verification that was not signed by all the
petitioners therein. Thus, we see no reason why we should not uphold the ruling of the Court of
Appeals in reinstating the petition despite the said formal defect.

On the requirement of a certification of non-forum shopping, the well-settled rule is that all the
petitioners must sign the certification of non-forum shopping. The reason for this is that the persons
who have signed the certification cannot be presumed to have the personal knowledge of the other
non-signing petitioners with respect to the filing or non-filing of any action or claim the same as or
similar to the current petition.47 The rule, however, admits of an exception and that is when the
petitioners show reasonable cause for failure to personally sign the certification. The petitioners must
be able to convince the court that the outright dismissal of the petition would defeat the
administration of justice.48

In the case at bar, counsel for the respondents disclosed that most of the respondents who were the
original complainants have since sought employment in the neighboring towns of Bulacan,
Pampanga and Angeles City. Only the one hundred eighty (180) signatories were then available to
sign the amended Petition for Certiorari and the accompanying verification and certification of non-
forum shopping.49 Considering the total number of respondents in this case and the elapsed period
of almost two years since the filing of the Joint Complaint Affidavit on 19 March 2001 and the filing of
the amended petition on 13 March 2003, we hold that the instant case sufficiently falls under the
exception to the aforesaid rule. Thus, the Court of Appeals cannot be said to have erred in
overlooking the above procedural error.
We also cannot fault the act of the Court of Appeals in ordering submission of an amended petition
and the reinstatement of the same despite the original petition's late filing, considering the obvious
merits of the case.

In Vallejo v. Court of Appeals,50 the Court of Appeals initially dismissed the Petition for Certiorari for
having been filed beyond the reglementary period, but on appeal, we reversed the appellate court's
ruling, as petitioner had presented a good cause for the proper determination of his case.

Petitioners claim that the Court of Appeals committed serious error when it reversed the DOJ
resolution, which found that there was no probable cause to indict petitioners for any violation of the
SSS Law. They argue that the DOJ is the highest agency and the ultimate authority to decide the
existence or non-existence of probable cause, and that the Court of Appeals does not have the
authority to reverse such findings.

This argument is utterly misguided.

Probable cause is defined as the existence of such facts and circumstances as would excite the
belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he was prosecuted.51 It is a reasonable ground of
presumption that a matter is, or may be, well-founded, such a state of facts in the mind of the
prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an
honest or strong suspicion, that a thing is so. The term does not mean "actual and positive cause"
nor does it import absolute certainty. It is merely based on opinion and reasonable belief.52

The determination of probable cause is a function that belongs to the public prosecutor, one that, as
far as crimes cognizable by the RTC are concerned, and notwithstanding that it involves an
adjudicative process of a sort, exclusively pertains, by law, to said executive officer, the public
prosecutor.53 This broad prosecutorial power is, however, not unfettered, because just as public
prosecutors are obliged to bring forth before the law those who have transgressed it, they are also
constrained to be circumspect in filing criminal charges against the innocent. Thus, for crimes
cognizable by the regional trial courts, preliminary investigations are usually conducted.54 As defined
under the law, a preliminary investigation is an inquiry or a proceeding to determine whether there is
sufficient ground to engender a well-founded belief that a crime has been committed, and the
respondent is probably guilty thereof and should be held for trial.55

The findings of the prosecutor with respect to the existence or non-existence of probable cause is
subject to the power of review by the DOJ. Indeed, the Secretary of Justice may reverse or modify
the resolution of the prosecutor, after which he shall direct the prosecutor concerned either to file the
corresponding information without conducting another preliminary investigation, or to dismiss or
move for dismissal of the complaint or information with notice to the parties.56

This power of review, however, does not preclude this Court and the Court of Appeals from
intervening and exercising our own powers of review with respect to the DOJ's findings. In the
exceptional case in which grave abuse of discretion is committed, as when a clear sufficiency or
insufficiency of evidence to support a finding of probable cause is ignored, the Court of Appeals may
take cognizance of the case via a petition under Rule 65 of the Rules of Court.57

This is precisely the situation in the case at bar. In deciding the respondents' Petition for Certiorari,
the Court of Appeals ruled that the DOJ committed palpable mistake in reversing the Final
Resolution of the Provincial Prosecutor and, in so doing, acted with grave abuse of discretion.
In the assailed decision, the Court of Appeals declared that the DOJ's dismissal of the charges
against petitioners, on the ground that the evidence on record did not support the same, was
incorrect. Furthermore, the appellate court held that the defenses of petitioners of good faith and
lack of criminal intent should not have been considered, inasmuch as the offenses charged were for
violations of a special law and are therefore characterized as mala prohibita, in which the intent to
commit is immaterial.

After carefully reviewing the records of this case, we agree with the Court of Appeals' findings that
there was indeed probable cause to indict petitioners for the offenses charged.

In a preliminary investigation, a full and exhaustive presentation of the parties' evidence is not
required, but only such as may engender a well-grounded belief that an offense has been committed
and that the accused is probably guilty thereof.58 Certainly, it does not involve the determination of
whether or not there is evidence beyond reasonable doubt pointing to the guilt of the person.
Only prima facie evidence is required; or that which is, on its face, good and sufficient to establish a
given fact, or the group or chain of facts constituting the party's claim or defense; and which, if not
rebutted or contradicted, will remain sufficient.59 Therefore, matters of evidence are more
appropriately presented and heard during the trial.60

In the present case, petitioners were charged with violations of the SSS Law for their failure to either
promptly report some of the respondents for compulsory coverage/membership with the SSS or
remit their SSS contributions and loan amortizations. In support of their claims, respondents have
attached unto their Joint Complaint-Affidavit a summary of their unreported and unremitted SSS
contributions,61 as gathered from the SSS Online Inquiry System, and a computation of their
unreported and unremitted SSS contributions.62

On the part of the petitioners, they have not denied their fault in not remitting the SSS contributions
and loan payments of the respondents in violation of Section 28, paragraphs (e), (f) and (h) of the
SSS Law. Instead, petitioners interposed the defenses of lack of criminal intent and good faith, as
their failure to remit was brought about by alleged economic difficulties, and they have already
agreed to settle their obligations with the SSS through a memorandum of agreement to pay in
installments.1avv phi 1

As held by the Court of Appeals, the claims of good faith and absence of criminal intent for the
petitioners' acknowledged non-remittance of the respondents' contributions deserve scant
consideration. The violations charged in this case pertain to the SSS Law, which is a special law. As
such, it belongs to a class of offenses known as mala prohibita.

The law has long divided crimes into acts wrong in themselves called acts mala in se; and acts
which would not be wrong but for the fact that positive law forbids them, called acts mala prohibita.
This distinction is important with reference to the intent with which a wrongful act is done. The rule
on the subject is that in acts mala in se, the intent governs; but in acts mala prohibita, the only
inquiry is, has the law been violated?63 When an act is illegal, the intent of the offender is
immaterial.64

Thus, the petitioners' admission in the instant case of their violations of the provisions of the SSS
Law is more than enough to establish the existence of probable cause to prosecute them for the
same.

WHEREFORE, in light of the foregoing, the Petition for Review under Rule 45 of the Rules of Court
is hereby DENIED.
The assailed Decision dated 30 September 2004 of the Court of Appeals in CA-G.R. SP No. 79101
and the Resolution dated 9 May 2005 are hereby AFFIRMED. Costs against petitioners.

SO ORDERED.

Ynares-Santiago, Chairperson, Carpio*, Austria-Martinez, Nachura, JJ., concur.

Footnotes

* Justice Antonio T. Carpio was designated to sit as additional member replacing Justice
Ruben T. Reyes per Raffle dated 28 May 2008.

1 Rollo, pp. 3-36.

2Penned by Associate Justice Edgardo P. Cruz with Associate Justices Godardo A. Jacinto
and Jose C. Mendoza concurring; rollo, pp. 38-46.

3 Rollo, p. 48.

4 Rollo, pp. 117-120; records, pp. 122-124.

5 Rollo, pp. 101-103.

6In the pleadings filed before the Court of Appeals, the Decision of the appellate court dated
30 September 2004 and in the Respondent's Memorandum (Rollo, pp. 612-625), the name
of respondent Ballena was written as Angelito Ballena.

7 Rollo, pp. 64-75.

8 In the Petition for Certiorari filed before the Court of Appeals, the appellate court's Decision
dated 30 September 2004 and the Respondents' Memorandum (Rollo, pp. 612-625), the
figure stated as the number of employees who filed the Complaint-Affidavit was two
hundred forty (240). However, in the Complaint-Affidavit itself, there were only one
hundred forty (140) signatory employees.

9 The Social Security Act of 1997.

10 Rollo, pp. 85-87.

11 Id. at 88.

12 Id. at 89.

13 Id. at 99-100.

14 Id. at 101.
15 Id. at 101.

16 Id. at 101-103.

17The Assistant Prosecutor resolved to implead petitioner Lim in light of the testimony of one
of the complainants that Lim acted as the general manager of one of the Annex buildings of
Footjoy and that he failed to dispute the said description. (Rollo, p. 102)

18 Rollo, p. 104.

19 The accusatory portion provides:

That [on] or about and during the period from October, 1981 up to April 2001, in the
municipality of Guiguinto, province of Bulacan, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, being then the President,
Administrative Officer and General Manager of Annex Building C, respectively, of
Footjoy Industrial Corporation, a member of the Social Security System with
Employer I.D. No. 03-9007996-1, in conspiracy with one another, did then and there
willfully, unlawfully and feloniously fail to register and report for coverage to the SSS
the employees of said corporation whose names are contained in Annex "A" hereof,
to the damage and prejudice of said employees. (CA rollo, pp. 83-84.)

20 Rollo, pp. 105-113.

21 Id. at 87-89.

22 Section 11, paragraph (c) of Rule 116 provides:

SEC. 11. Suspension of arraignment. - Upon motion by the proper party, the
arraignment shall be suspended in the following cases:

xxxx

(c) A petition for review of the resolution of the prosecutor is pending at either the
Department of Justice, or the Office of the President; provided, that the period of
suspension shall not exceed sixty (60) days counted from the filing of the petition
with the reviewing office.

23On 5 February 2002, the RTC denied the petitioners' Motion to Defer/Suspend
Arraignment and the accompanying Motion to Recall Alias Witness. (Records, pp. 101-102).

24 Rollo, pp. 117-120.

25 Records, pp. 111-121.

26 Id. at 122-124.

27 Rollo, pp. 121-136.

28 Id. at 137.
29 Id. at 138-146.

30 Id. at 176-220.

31 Records, p. 324.

32 Id. at 332-368.

33 Rollo, pp. 147-148.

34 Id. at 45-46.

35 Id. at 49-60.

36 Id. at 48.

37 Id. at 575.

38 As amended by A.M. No. 07-7-12-SC, which took effect on 27 December 2007. This
amendment may already be applied to the present case, as it is already a settled principle
that procedural rules may be given retroactive effect to actions pending and undetermined at
the time of their passage, and this will not violate any right of a person who may feel that he
is adversely affected, inasmuch as there is no vested rights in rules of procedure. (Republic
v. Court of Appeals, 447 Phil. 385 [2003].)

39 Ginete v. Court of Appeals, 357 Phil. 36, 51 (1998).

Aguam v. Court of Appeals, 388 Phil. 587, 593 (2000), cited in Vallejo v. Court of
40

Appeals, G.R. No. 156413, 14 April 2004, 427 SCRA 658, 668.

41 Id.

42 Sy Chin v. Court of Appeals, 399 Phil. 442, 454 (2000).

43 Bank of the Philippine Islands v. Court of Appeals, 450 Phil. 532, 540 (2003).

44 G.R. No. 149634, 6 July 2004, 433 SCRA 455, 464.

45 G.R. No. 160455, 9 May 2005, 458 SCRA 325, 334.

46 G.R. No. 144062, 2 November 2006, 506 SCRA 524, 535.

47 See Docena v. Lapesura, 407 Phil. 1007, 1017 (2001).

Spouses Ortiz v.Court of Appeals, 360 Phil. 95, 101 (1998), cited in Digital Microwave
48

Corporation v. Court of Appeals, 384 Phil. 842, 847 (2000).

49 Records, p. 330.

50 Supra note 40.

 51Cruz, Jr. v. People, G.R. No. 110436, 27 June 1994, 233 SCRA 439, 453-454, cited
in Ladlad v. Velasco,G.R. Nos. 172070-72, 1 June 2007, 523 SCRA 318, 335.

52 Pilapil v. Sandiganbayan, G.R. No. 101978, 7 April 1993, 221 SCRA 349, 360.

53People v. Court of Appeals, 361 Phil. 492, 498 (1999), citing the Separate (Concurring)
Opinion of former Chief Justice Narvasa in Roberts, Jr. v. Court of Appeals, 324 Phil. 568,
620 (1996).

54 People v. Court of Appeals, id.

55 Rules of Court, Rule 112, Section 1, first paragraph.

56
Id., Section 4, last paragraph.

57See Ladlad v. Velasco, supra note 51, citing Allado v. Diokno, G.R. No. 113630, 5 May
1994, 232 SCRA 192, 208 and Salonga v. Cruz-Paño, G.R. No. L-59524, 18 February 1985,
134 SCRA 438.

58People v. Court of Appeals, supra note 53, citing Ledesma v. Court of Appeals, 344 Phil.
207, 226 (1997).

59 Wa-acon v. People, G.R. No. 164575, 6 December 2006, 510 SCRA 429, 439.

60 People v. Court of Appeals, supra note 53.

61
Rollo, pp. 76-78.

62 Id. at 79-84.

63 Dunlao, Sr. v. Court of Appeals, 329 Phil. 613, 619 (1996).

64 Id.

THIRD DIVISION

G.R. No. 120921 January 29, 1998

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
FELIPE BALLESTEROS, CESAR GALO and ALVIN BULUSAN, accused-appellants.

ROMERO, J.:
This is an appeal from the decision of the Regional Trial Court of Bangui, Ilocos Norte, Branch 19,
finding the accused guilty beyond reasonable doubt of murder, qualified by treachery, as charged
under Article 248 of the Revised Penal Code, as amended, to wit:

WHEREFORE, the Court finds the three accused guilty beyond reasonable doubt of
murder, qualified by treachery, as charged, defined and penalized under Article 248
of the Revised Penal Code, as amended, and applying Article 248 of the Revised
Penal Code hereby sentences them to reclusion perpetua, with all the accessory
penalties provided by law, and further sentencing them to pay jointly and solidarily —

1. The heirs of Jerry Agliam compensatory damages in the amount of FIFTY

THOUSAND PESOS (P50,000.00), moral damages in the amount of TWENTY
THOUSAND PESOS (P20,000.00), and actual damages in the amount of THIRTY
FIVE THOUSAND SEVEN HUNDRED FIFTY-FIVE PESOS (P35,755.00), with
interest;

2. The heirs of the late Eduardo Tolentino, Sr., compensatory damages in the
amount of FIFTY THOUSAND PESOS (P50,000.00), moral damages in the amount
of TWENTY THOUSAND PESOS (P20,000.00), and actual damages in the total
amount of SIXTY-ONE THOUSAND SEVEN HUNDRED EIGHTY-FIVE PESOS
(P61,785.00), with interest;

3. Carmelo Agliam, actual damages in the amount of TWO THOUSAND AND

THREE PESOS AND FORTY CENTAVOS (P2,003.40), and moral damages in the
amount of TEN THOUSAND PESOS (P10,000.00), with interest;

4. Vidal Agliam Jr., Robert Cacal and Ronnel Tolentino, moral damages in the
amount of FIVE THOUSAND PESOS (P5,000.00) each, with interest.

5. The costs.

The accused shall be credited in the service of their sentence the full time during
which they had undergone preventive imprisonment, if they agreed voluntarily in
writing to abide by the same disciplinary rules imposed upon convicted prisoners,
otherwise, they shall be credited in the service thereof with only four-fifths of the time
during which they had undergone preventive imprisonment.1

In the warm summer evening of May 28, 1991, Carmelo Agliam, his half-brother Eduardo Tolentino,
Ronnel Tolentino, Vidal Agliam, his brother Jerry Agliam, Robert Cacal, Raymundo Bangi and
Marcial Barid converged at a carinderia owned by Ronnel Tolentino at Ganayao, Pasuquin, Ilocos
Norte. They proceeded to the barangay hall at Carusipan to attend a dance. The group did not tarry
for long at the dance because they sensed some hostility from Cesar Galo and his companions who
were giving them dagger looks. In order to avoid trouble, especially during the festivity, they decided
to head for home instead of reacting to the perceived provocation of Galo and his companions.

The group had barely left when, within fifty meters from the dance hall, their owner jeep was fired
upon from the rear. Vidal Agliam was able to jump out from the eastern side of the "topdown" jeep
and landed just beside it. He scurried to the side of the road and hid in the ricefield. His younger
brother Jerry also managed to jump out, but was shot in the stomach and died.2 Carmelo Agliam,
Robert Cacal and Ronnel Tolentino sustained injuries in the right foot, back of the right thigh,
and legs and thighs, respectively. 3 The stunned Eduardo Tolentino was not even able to
move from his seat and was hit with a bullet which punctured his right kidney.4 He did not
survive. The precipitate attack upon the jeep left two people dead and four others injured.

Based upon the affidavits of Carmelo and Vidal Agliam, warrants for the arrest of Ballesteros,
Galo and Bulusan were issued. Charged with the crime of double murder with multiple
frustrated murder, an information was filed as follows:

That on or about (sic) May 28, 1991, in the Municipality of Pasuquin, Ilocos
Norte, Philippines and within the jurisdiction of the Honorable Court, the
abovenamed accused, nighttime purposely sought, with evident premeditation
and treachery, confederating and mutually helping one anotlner, did then and
there, with intent to kill, willfully, unlawfully and feloniously attack and shot
Eduardo Tolentino Sr., Jerry Agliam, Vidal Agliam, Carmelo Agliam, Robert
Cacal and Ronnel Tolentino, with the use of firearms which caused the death
of Eduardo Tolentino Sr. and Jerry Agliam and thereby inflicting gunshot
wounds to Vidal Agliam, Carmelo Agliam, Robert Cacal and Ronnel Tolentino
having performed all the acts which would have produced the crime of Murder,
but which did not by reason of causes independent of the will of the defendant,
namely the able and timely medical assistance given to said Vidal Agliam,
Carmelo Agliam, Robert Cacal and Ronnel Tolentino which prevented their
death.

All pleaded not guilty. Paraffin tests conducted on Galo and Ballesteros produced positive
results. Bulusan was not tested for nitrates.

In his testimony, Galo claimed that he did not even talk to Bulusan or any of his companions
at the basketball court, as alleged by the complainants. Having been found with gunpowder
residue in his hands, Galo attempted to exculpate himself from the results by confessing that
he had been a cigarette smoker for the past ten years and had, in fact, just consumed eight
cigarette sticks prior to the test. He further asserted that paraffin tests are not infallible, and
that his hand may have been contaminated by a nitrogenous compound, the source of which
is urine. Lastly, he said that he was not even present at the crime scene when the firing
incident took place; hence, he could not have been one of those who strafed the jeep.5

For his part, Ballesteros interposed the defense of alibi, narrating to the court that, on May
28, 1991, at around 7:00 o'clock in the evening, he went to a nearby store to purchase some
cigarettes. He returned home within thirty minutes and cleaned his garlic bulbs before
retiring at 9:00 o'clock. The next morning, he busied himself with some chores, which
included fertilizing his pepper plants with sulfate. He handled the fertilizers without gloves.
To counter the finding of traces of nitrates on his left hand, Ballesteros maintained that he
uses his left hand in lighting cigarettes, as it was very painful for him to use his right hand.
He likewise informed the trial court that he had no motive to kill the victims.6

Bulusan echoed the defense of alibi of Galo and Ballesteros, stating that he saw only Galo on
the evening of the dance but did not talk to him. He denied joining the two later that night
because after the dance, he went straight to the house of Michael Viloria, where he spent the
night he went to work at 7:00 o'clock in the morning of the following day.7

The trial court found the three accused guilty beyond reasonable doubt of murder, qualified
by treachery, as charged, defined and penalized under Article 248 of the Revised Penal Code.
The accused now come to the High Court on appeal, praying that the decision of the trial
court be reversed and that a new one be entered acquitting them of the charges.

The principal question to be resolved has to do with the merits of the decision of the lower
court. Was it correct in finding accused-appellants guilty beyond reasonable doubt? We
answer in the affirmative.

Accused-appellants insist that the trial court erred in finding that Carmelo and Vidal Agliam
recognized them as the assailants. This claim is unmeritorious. In their testimonies, Carmelo
and Vidal Agliam both described the area to be well illumined by the moon. The shooting took
place on a small road in the mountainous terrains of Ilocos Norte, where the air is free from
darkening elements and turbidity. It being a summer evening, there could not have been any
fog to becloud the atmosphere and hamper the vision of the victims, which would have
prevented them from clearly seeing their assailants. They pinpointed the location of the
malefactors to be approximately three meters from where they stood.8 Considering the
luminescence of the moon and the proximity between them, the victims could distinctly
identify their assailants. It must be noted that Carmelo was acquainted with Galo and his
brother, a butcher, since he used to deal with them in his business of buying and selling
cattle.9 Bulusan was a classmate of Vidal at Cadaratan School. Generally, people in rural
communities know each other both by face and name. 10Bulusan and Agliam were, not only
townmates, but former classmates as well. The constant interaction between them through
the years would necessarily lead to familiarity with each other such that, at the very least, one
would have been able to recognize the other easily.

That accused-appellants had no motive in perpetrating the offense is irrelevant. A distinction

is herein timely made between motive and intent. Motive is the moving power which impels
one to action for a definite result. Intent, on the other hand, is the purpose to use a particular
means to effect such result. 11Motive alone is not proof of a crime. 12 In order to tip the scales
in its favor, intent and not motive must be established by the prosecution. Motive is hardly
ever an essential element of a crime. A man driven by extreme moral perversion may be led
to commit a crime, without a real motive but a just for the sake of committing it. 13 Along the
same line, a man who commits a crime with an apparent motive may produce different
results, for which he is punished. As held in a line of cases, the rule is well-settled that the
prosecution need not prove motive on the part of the accused when the latter has been
positively identified as the author of the crime. 14 Lack or absence of motive for committing
the crime does not preclude conviction thereof where there were reliable witnesses who fully
and satisfactorily identified the accused as the perpetrator of the felony. 15

Accused-appellant's attempt to offer wild excuses regarding the source of the gunpowder
traces found on their hands is futile. Experts confirm the possibility that cigarettes, fertilizers
and urine may leave traces of nitrates, but these are minimal and, unlike those found in
gunpowder, may be washed off with tap water.

The hackneyed defense of alibi interposed by accused-appellants must likewise fail. As

consistently enunciated by this Court, the established doctrine is that, for the defense of alibi
to prosper, the accused must prove, not only that he was at some other place at the time of
the commission of the crime, but also that it was physically impossible for him to be at
the locus delicti or within its immediate vicinity. 16 This accused-appellants failed to
satisfactorily prove. On the night of May 28, 1991, Galo and Bulusan attended the dance at
the barangay hall. After the dance, they went their separate ways but remained within the
barangay. Galo lingered in the premises. Bulusan slept over at the house of Michael Viloria,
which was within walking distance from the dance hall.
The defense of alibi must be established by positive, clear and satisfactorily evidence, the
reason being that it is easily manufactured and usually so unreliable that it can rarely be
given credence. 17 This is especially true in case of positive identification of the culprit by
reliable witnesses, 18 which renders their alibis worthless. 19 Positive identification prevails
over denials and alibis.20

Accused-appellants are under the common misconception that proof beyond reasonable
doubt requires total freedom from any quantum of doubt. This is not so. Under Section 2,
Rule 133 of the Rules of Court,

(p)roof beyond reasonable doubt does not mean such a degree of proof as,
excluding possibility of error, produces absolute certainty. Moral certainty only
is required, or that degree of proof which produces conviction in an
unprejudiced mind.

Absolute certainty of guilt is not demanded by law to convict a person of a criminal charge.
The doubt to the benefit of which an accused is entitled in a criminal trial is a reasonable
doubt, not a whimsical or fanciful doubt based on imagined but wholly improbable
possibilities and unsupported by evidence. 21Reasonable doubt is that engendered by an
investigation of the whole proof and inability, after such investigation, to let the mind rest
easy upon the certainty of guilt. 22 A precise example would be the uncorroborated alibi of
accused in the case at bar where accused-appellants individually interposed the wavering
defense of alibi. Galo failed to elucidate on his whereabouts after the dance, whereas
Bulusan claimed to have slept in the house of one Michael Viloria. Ballesteros attested that
he was not at the dance hall at all. None of them, however, attempted to corroborate their alibi
through the testimony of witnesses. In fact, they never attempted to present as witnesses
those who would have testified to having seen them elsewhere on the night in question. Had
they done so, the presentation of corroborative testimony would have reenforced their
defense of alibi. As held in People vs. Ligotan, 23 an alibi must be supported by credible
corroboration from disinterested witnesses, and where such defense is not corroborated, it is
fatal to the accused.

The Court correctly ruled in finding that the offense was qualified by treachery. Under
Paragraph 16, Article 14 of the Revised Penal Code, "(t)here 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." The requisites of
treachery are twofold: (1) (t)hat at the time of the attack, the victim was not in a position to
defend himself ; and (2) that the offender consciously adopted the particular means, method
or form of attack employed by him. 24 As regards the second requisite, the accused must
make some preparation to kill his victim in such a manner at to insure the execution of the
crime or to make it impossible or hard for the person attacked to defend himself or
retaliate. 25 There must be evidence that such form of attack waspurposely adopted by the
accused. 26 Here, it is obvious that the accused-appellants had sufficient opportunity to reflect
on their heinous plan. The facts show that the attack was well-planned and not merely a
result of the impulsiveness of the offenders. Manifestations of their evil designs were already
apparent as early as the time of the dance. They were well-armed and approached the
homebound victims, totally unaware of their presence, from behind. There was no
opportunity for the latter to defend themselves, the attack being so sudden and Eduardo
Tolentino was shot right where he sat.
The trial court was also correct in the award of damages to the heirs of the victims. Damages
may be defined as the pecuniary compensation, recompense, or satisfaction for an injury
sustained, or as otherwise expressed, the pecuniary consequences which the law imposes
for the breach of some duty or the violation of some right. 27 Actual or compensatory
damages are those awarded in satisfaction of, or in recompense for, loss or injury
sustained, 28 whereas moral damages may be invoked when the complainant has experienced
mental anguish, serious anxiety, physical suffering, moral shock and so forth, and had
furthermore shown that these were the proximate result of the offender's wrongful act or
omission. 29 In granting actual or compensatory damages, the party making a claim for such
must present the best evidence available, viz., receipts, vouchers, and the like, 30 as
corroborated by his testimony. 31 Here, the claim for actual damages by the heirs of the
victims is not controverted, the same having been fully substantiated by receipts
accumulated by them and presented to the court. 32 Therefore, the award of actual damages is
proper. However, the order granting compensatory damages to the heirs of Jerry Agliam and
Eduardo Tolentino Sr. must be amended. Consistent with the policy of this Court, the amount
of fifty thousand pesos (P50,000.00) is given to the heirs of the victims by way of indemnity,
and not as compensatory damages. 33 As regards moral damages, the amount of
psychological pain, damage and injury caused to the heirs of the victims, although
inestimable, 34 may be determined by the trial court in its discretion. Hence, we see no reason
to disturb its findings as to this matter.

WHEREFORE, premises considered, the decision appealed from is hereby AFFIRMED WITH
MODIFICATION. No pronouncement as to costs.

SO ORDERED.

Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.

Footnotes

1 Rollo, pp. 273-274.

2 Ibid., pp. 255-256.

3 Ibid., p. 253.

4 TSN, March 10, 1992, p. 2.

5 TSN, March 8, 1994, p. 236.

6 TSN, July 12, 1993, pp. 179-181.

7 TSN, November 9, 1993, pp. 195-197.

8 TSN, July 13, 1992, p. 65.

9 TSN, March 10, 1992, p, 11.

10 People vs. Rosario, 246 SCRA 658 (1995)

11 Reyes, Revised Penal Code, Twelfth Edition (1981), p. 60.

12 People vs. Maongco, 230 SCRA 562 (1994).

13 Reyes, supra., p. 60.

14 People vs. Canceran, 229 SCRA 581 (1994).

15 People vs. Gamiao, 240 SCRA 254 (1995).

16 People vs. De Roxas, 241 SCRA 695 (1995); People vs. Castaneda, 252
SCRA 247 (1996).

17 Moran, Comments on the Rules of Court (1980), p. 158.

18 People vs. Alonzo, L-32163, October 19, 1976; People vs. Roxas, L-32912,
October 29, 1976; People vs. Daquipil, 240 SCRA 314.

19 People vs. Mendoza, 254 SCRA 61 (1996).

20 People vs. Abrenica, 252 SCRA 54 (1996).

21 Moran, supra., p. 136, citing US vs. Brobst, 14 Phil 310, People vs. Mahlom,
Moro Saan and Moro Muntasal, L-5198, April 7, 1953.

22 Ibid., citing US vs. Lazada, 18 Phil. 90.

23 262 SCRA 602 (1996).

24 Reyes, The Revised Penal Code, p. 409-410.

25 Ibid., p. 405, citing People vs. Tumaob, 83 Phil 742, People vs. Saez, 1 SCRA
937.

26 Ibid.

27 Tolentino, Civil Code of the Philippines (1992), Volume V, p. 632.

28 Ibid., p. 633.

29 Ibid., citing Ventanilla vs. Impil and Lina, 53 O.G. 8170.

30 TSN, July 8, 1992, pp. 55-56; July 14, 1992, pp. 94-96; September 8, 1992, pp.
2-5; November 10, 1992, p. 143.

31 Baliwag Transit Inc. vs. CA , 256 SCRA 746 (1996).

32 Ibid.

33 People vs. Dones, 254 SCRA 696 (1996).

34 Valenzuela vs. Court of Appeals, 253 SCRA 303 (1996).

 FIRST DIVISION

G.R. No. 168217 June 27, 2006

JOY LEE RECUERDO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CALLEJO, SR., J.:

Before the Court is a Petition for Review on Certiorari of the Joint Decision1 of the Court of Appeals
(CA) in CA-G.R. CR No. 25983, affirming with modification the decision of the Regional Trial Court
(RTC) of Malolos, Bulacan in Criminal Cases Nos. 2750-M-94, 2751-M-94 and 2807-M-94 for estafa.

As synthesized by the appellate court, the antecedents are as follows:

In September 1994, three separate Criminal Informations charging Joy Lee Recuerdo of Estafa
under Article 315, paragraph 2(d) of the Revised Penal Code involving 18 worthless bank checks
were simultaneously filed by the Office of the Provincial Prosecutor of Bulacan, the accusatory
portions of which read, thus:

A. Six (6) Unitrust Checks

Crim. Case No. 2750-M-94

"That sometime in the second week of December, 1993, in the municipality of Meycauayan, province
of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Joy Lee
Recuerdo, with intent to gain and by means of deceit, false pretenses and fraudulent manifestations,
and pretending to have sufficient funds with the Unitrust, Makati Commercial Center Branch, did
then and there willfully, unlawfully and feloniously prepare, draw, make and issue the following
postdated checks, to wit:

Check No Date Amount

014355 April 5, 1994 ₱22,000.00

014356 May 5, 1994 22,000.00

014357 June 5, 1994 22,000.00

014358 July 5, 1994 22,000.00

014359 August 5, 1994 22,000.00

014360 September 5, 1994 22,000.00

with the total amount of P132,000.00 drawn against the said bank, and deliver the said checks to the
complaining witness Yolanda G. Floro as payment for pieces of jewelry she obtained from the said
complainant, knowing fully well at the time the checks were issued that her representations were
false for she had no sufficient funds in the said bank, so much that upon presentment of the said
checks with the said bank for encashment, the same were dishonored and refused payment for
having been drawn against an "Account Closed", and inspite of repeated demands to deposit with
the said bank the amount of P132,000.00, the said accused failed and refused to do so, to the
damage and prejudice of the said Yolanda G. Floro in the said amount of P132,000.00.

Contrary to law."

B. Six (6) PCI Bank Checks

Crim. Case No. 2807-M-94

"That sometime in the second week of December 1993, in the municipality of Meycauayan, province
of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Joy Lee
Recuerdo, with intent of gain and by means of deceit, false pretenses and fraudulent manifestations,
and pretending to have sufficient funds with the PCI Bank, Makati-De La Rosa Branch, did then and
there willfully, unlawfully and feloniously prepare, draw, make and issue the following postdated
checks, to wit:

Check No. Date Amount

053051982A March 28, 1994 ₱13,000.00

053051983A April 28, 1994 13,000.00

053051984A May 28, 1994 13,000.00

053051985A June 28, 1994 13,000.00

053051986A July 28, 1994 13,000.00
053051987A August 28, 1994 13,000.00

with the total amount of P78,000.00 drawn against the said bank, and deliver the said checks to the
complaining witness Yolanda G. Floro as payment for pieces of jewelry she obtained from the said
complainant, knowing fully well at the time the checks were issued that her representations were
false for she had no sufficient funds in the said bank, so much that upon presentment of the said
checks with the said bank for encashment, the same were dishonored and refused payment for
having been drawn against an "Account Closed", and inspite of repeated demands to deposit with
the said bank the amount of P78,000.00, the said accused failed and refused to do so, to the
damage and prejudice of the said Yolanda G. Floro in the said amount of P78,000.00.

Contrary to law.

C. Six (6) Prudential Bank Checks

Criminal Case No. 2751-M-94

That on or about the 7th day of February, 1994, in the municipality of Meycauayan, province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Joy Lee
Recuerdo, with intent of gain and by means of deceit, false pretenses and fraudulent manifestations,
and pretending to have sufficient funds with the Prudential Bank, Legaspi Village Branch, did then
and there willfully, unlawfully and feloniously prepare, draw, make and issue the following postdated
checks, to wit:

Check No. Date Amount

0011783 March 13, 1994 P100,000.00

0011784 April 13, 1994 100,000.00

0011785 May 13, 1994 100,000.00
0011786 June 13, 1994 100,000.00

0011787 July 13, 1994 100,000.00

0011788 August 13, 1994 100,000.00

with the total amount of P600,000.00 drawn against the said bank, and deliver the said checks to the
complainant witness Yolanda G. Floro as payment for pieces of jewelry she obtained from the said
complainant, knowing fully well at the time the checks were issued that her representations were
false for she had no sufficient funds in the said bank, so much that upon presentment of the said
checks with the said bank for encashment, the same were dishonored and refused payment for
having been drawn against an "Account Closed", and inspite of repeated demands to deposit with
the said bank the amount of P600,000.00, the said accused failed and refused to do so, to the
damage and prejudice of the said Yolanda G. Floro in the said amount of P600,000.00

Contrary to law."

Evidence adduced by the Prosecution tend to establish that herein private respondent Yolanda G.
Floro is engaged in the business of buying and selling of jewelry since 1985. She regularly conducts
business at her residence located at No. 51 Interior, Poblacion, Meycauayan, Bulacan. Sometimes,
though, it was Floro who would personally visit her customers to show and offer them the pieces of
jewelry. Herein accused-appellant/petitioner Joy Lee Recuerdo, on the other hand, a dentist by
profession, who was introduced to Floro by the latter’s cousin Aimee Aoro in the first week of
December 1993, became her customer. Sometime in the second week of December 1993, at around
7:30 in the evening, Recuerdo went to the house of Floro in Meycauayan, Bulacan and purchased
from her two pieces of jewelry, to wit: a 2.19 carat diamond round stone in white gold setting
worth P220,000.00 pesos, and one piece of loose 1.55 karat marquez diamond with a value
of P130,000.00 pesos.

For the 2.19 carat diamond stone, accused issued and delivered to the complainant then and there
ten post-dated checks each in the amount of P22,000.00 drawn against Unitrust Development Bank,
Makati Commercial Center Branch. Only six (6) postdated checks, to wit: Checks Nos. 014356,
014357, 014358, 014359 and 014360 are subject of Criminal Case No. 2750-M-94. For the 1.55
carat marquez loose diamond, accused issued and delivered to complainant then and there ten (10)
postdated checks, each in the amount of P13,000.00 drawn against PCI Bank, Makati, Dela Rosa
Branch. Six of those checks are subject of Criminal Case No. 2807-M-94, to wit: Checks Nos.
053051983A, 053051984A, 053051985A, 053051986A and 053051987A, subject matter of Crim.
Case No. 2751-M-94.

In yet another transaction that transpired in the early evening of February 7, 1994, Recuerdo once
again proceeded at Floro’s house in Meycauayan, Bulacan and bought another set of jewelry, this
time a pair of diamond earrings worth P768,000.00 pesos. She was given seven (7) postdated
checks one for P168,000.00 as downpayment and another six (6) postdated checks drawn against
Prudential Bank, Legaspi Village, Makati Branch, each for P100,000.00 representing the balance in
the aggregate amount of P600,000.00 pesos (Checks Nos. 100783, 01184, 01185, 011786, 011787
and 011788, Record, Criminal Case No. 2750-M-94, pp. 138-150) subject matter of Crim. Case No.
2751-M-94.

Floro deposited the aforementioned checks at Liberty Savings & Loan Association, Meyc[a]uayan,
Bulacan. Upon presentment for encashment by said depositary bank with the different drawee banks
on their respective maturity dates, the six (6) Prudential Bank checks were all dishonored for having
been drawn against closed accounts. With her pieces of jewelry still unpaid, Floro, through counsel,
made formal demands requiring Requerdo to pay the amounts represented by the dishonored
checks (Record, supra, pp. 123, 138, and 151). Floro’s efforts to obtain payment, though, only
proved futile as Requerdo continuously refused to pay the value of the purchased pieces of jewelry.

Upon her arraignment on March 1, 1995 in Criminal Case No. 2807-M-94, and on April 4, 1995 in
Criminal Case Nos. 2750-M-94 and 2751-M-94, Recuerdo, with the assistance of counsel, pleaded
not guilty. (Record, Criminal Case No. 2807-M-94, p. 40; Criminal Case No. 2750-M-94, p. 58).
Considering the identity of the parties concerned, and the nature of the transactions from which the
charges of Estafa trace its roots, the three criminal cases were consolidated. Joint trial then ensured.
Recuerdo, on separate dates, posted three Personal Bail Bonds to obtain provisional liberty (Record,
Criminal Case No. 2750-M-94, p. 21; 2807-M-94, p. 27; 2751-M-94, p. 17).

By way of defense, Recuerdo posited the theory that the trial court of Malolos, Bulacan is devoid of
jurisdiction to take cognizance of the criminal cases against her, insisting that all the essential
elements of the crime of Estafa involving the bad checks occurred at the City of Makati, in that, all
her business transactions with Floro, to wit; the purchase of the pieces of jewelry and the
subsequent issuance of and delivery of the subject bank checks in payment thereof which eventually
bounced, all took place and were executed at her Dental Clinic located at the Medical Towers at
Suite 306, Herrera corner Ormaza Streets Legaspi Village Makati City. Furthermore, Recuerdo
argued that her act of issuing the dishonored checks does not constitute the offense of Estafa
considering that the subject checks were not issued and delivered to Floro simultaneous to the
purchase of the pieces of jewelry, but only several days thereafter, when she had already thoroughly
examined the jewelry and is fully satisfied of its fine quality (TSN, Joy Lee Recuerdo, January 16,
1996, pp. 3-18).2

On July 28, 1997, the trial court rendered a Joint Decision convicting petitioner Joy Lee Recuerdo of
two counts of estafa under Article 315, paragraph 2(d) of the Revised Penal Code. The fallo of the
decision reads:

WHEREFORE, this Court finds the accused JOY LEE RECUERDO GUILTY beyond reasonable
doubt of two (2) counts of estafa, defined and penalized under Article 315, par. 2[b] (sic) of the
Revised Penal Code and hereby sentences her as follows:

1. In Criminal Case Nos. 2750-M-94 and 2807-M-94, to suffer an indeterminate penalty of

imprisonment ranging from six (6) years and one (1) day of prison correccional as minimum
to twelve (12) years and one (1) day reclusion temporal as maximum and to pay Yolanda
Floro by way of civil indemnity the amount of P210,000.00 pesos plus interest from the filing
of the information until fully paid; and

2. In Criminal Case No. 2751-M-94, to suffer an indeterminate penalty of imprisonment

ranging from six (6) minimum to twelve (12) years and one (1) day of reclusion temporal as
 maximum and to pay Yolanda Floro by way of civil indemnity the amount of P600,000.00
pesos plus interest from the filing of the information until fully paid.

In both cases, accused shall pay the costs of the suit.

SO ORDERED.3

Petitioner appealed the decision to the CA on the following assignment of errors:

I.

The Regional Trial Court erred in finding that the Municipal Trial Court, Meycauayan,
Bulacan, Branch I did not pass upon the merits of the criminal cases filed against the
petitioner by confining and limiting itself merely to the dispositive portion of the Joint Decision
dated 28 January 1998 rendered by the latter court, instead of reading the Joint Decision as
a whole to get its true meaning and intent.

II.

The Regional Trial Court erred in affirming the judgment of conviction rendered by the
Municipal Trial Court, Meycauayan, Bulacan, Branch II which is in derogation of the
petitioner’s right against double jeopardy considering that the latter was previously acquitted
of the same criminal cases by the Municipal Trial Court of Meycauayan, Bulacan, Branch I.

III.

The Regional Trial Court erred in finding that all proceedings in the court a quo have been
made in the presence and with the authority of the public prosecutor, in the face of the
undisputed fact that the appeal initiated by the private respondent is fatally defective
because it was filed without the concurrence, permission and authority of the public
prosecutor, in this case, the provincial prosecutor of Bulacan.4

Petitioner averred that the trial court had no jurisdiction over the offenses charged because the
crimes were committed in Makati City and not in Malolos, Bulacan where the Informations were filed.
The prosecution failed to prove the essential element of deceit because she drew and delivered the
postdated checks to the private complainant after the jewelries had been delivered. Moreover, she
was denied the right to due process.

On August 23, 2004, the CA rendered judgment affirming with modification the decision of the RTC
as to the penalty meted on the appellant. Petitioner filed a motion for reconsideration insisting that
based on the evidence on record, out of the 17 subject checks, nine were honored by the drawee
banks. Moreover, she made partial payments of the amounts of the subject checks while the case
was pending in the CA. Contrary to the finding of the trial court and the appellate courts that she
acted with deceit when she drew and delivered the checks in payment of the pieces of jewelry she
purchased from the private complainant, she in fact acted in good faith; hence, should be acquitted
based on the decision of this Court in People v. Ojeda.5 The CA denied the motion on May 20, 2005.

Petitioner filed the instant petition contending that:

THE COURT OF APPEALS HAS DECIDED THE CASE CONVICTING THE PETITIONER IN A
WAY PROBABLY NOT IN ACCORD WITH –
A. THE BENEFICENT RULING OF THE SUPREME COURT ENUNCIATED IN PEOPLE OF THE
PHILIPPINES V. CORA ABELLA OJEDA (G.R. NOS. 104238-58, JUNE 3, 2004) WHERE IT HELD
THAT A DEBTOR’S OFFER TO ARRANGE A PAYMENT SCHEME WITH HIS CREDITOR AND
PAYMENT OF THE OBLIGATION INDICATE GOOD FAITH THAT SUCCESSFULLY REBUTS THE
PRESUMPTION OF DECEIT.

B. WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT ENUNCIATED IN

BORROMEO V. COURT OF APPEALS, PEOPLE V. CLORES, ET AL., PEOPLE V. BAUTISTA
AND PEOPLE V. BENITO GO BIONG, JR. DIRECTING THAT IN CRIMINAL CASES, ALL
CIRCUMSTANCES AGAINST GUILT AND IN FAVOR OF INNOCENCE MUST BE TAKEN INTO
ACCOUNT.

C. THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE IN CONJUNCTION WITH THE

ESTABLISHED JURISPRUDENCE WHICH HOLDS THAT WHEN FACED WITH TWO
PROBABILITIES, ONE CONSISTENT WITH GUILT AND THE OTHER WITH INNOCENCE, THE
SCALES OF JUSTICE SHOULD TILT IN FAVOR OF INNOCENCE.

D. THE APPLICABLE DECISION OF THE SUPREME COURT WHICH DIRECTS THAT IN ESTAFA
CASES, IT IS OF PRIMORDIAL SIGNIFICANCE FOR THE PROSECUTION TO PROVE THE
EXACT DATE OF THE TRANSACTION AND THE EXACT DATE OF THE ISSUANCE OF THE
CHECKS.6

Petitioner avers that she acted in good faith and exerted her utmost efforts to confer with the private
complainant to settle her obligations. She points out that she made monthly cash payments to
lessen her civil liability and later on, for convenience, deposited the monthly payments at the private
complainant’s bank account with the Bank of the Philippine Islands. She continued to make
payments even during the pendency of the case in the CA, and continues to make deposits to
private complainant’s bank account.

Petitioner asserts that her efforts to settle her civil obligations to the private complainant indicate that
she has no intention of duping the latter, as well as the absence of deceit on her part. That she failed
to comply with her obligations by failing to make good the checks as they fell due does not suggest
deceit, but at best only financial hardship in fulfilling her civil obligations. Thus, there is no factual
and legal basis to convict her of estafa. Petitioner insists that criminal intent in embezzlement is not
based on technical mistakes as to the legal effect of a transaction honestly entered into, and there
can be no embezzlement if the mind of the person doing the act is innocent or if there is no wrongful
purpose.

Petitioner further avers that she should be benefited by the Court’s ruling in People v.
Ojeda,7 considering that the facts therein are parallel if not almost identical to this case, the only
difference being that, in the Ojeda case, the accused-appellant was able to fully settle her civil
obligations. Petitioner points out that she is still paying her obligations to the private complainant and
further argues that:

[i]n Criminal Case No. 2750-M-94, the petitioner issued ten (10) postdated Unitrust Development
Bank checks to the private complainant for the purchase of a 2.19 carat diamond stone in white gold
setting. Out of the ten (10) checks, four checks were duly funded when presented for acceptance
and payment. In Criminal Case No. 2807-M-94, the petitioner issued ten (10) post-dated PCI Bank
checks to the private complaint for the purchase of a 1.55 carat marquez loose diamond. The first
four (4) checks were duly funded when presented for acceptance and payment. In Criminal Case
No. 2751-M-94, the petitioner issued seven (7) post-dated Prudential Bank checks to the private
complainant for the purchase of a pair of diamond earrings. The amount covered by the first check
was paid and settled. The rest bounced.

The petitioner respectfully submits that the act of the petitioner --- OF DULY FUNDING SOME OF
THE POST-DATED CHECKS WHICH SHE ISSUED, SPECIFICALLY THOSE WHICH BECAME
DUE FIRST OR EARLIER – is and should be considered in law as, a CIRCUMSTANCE
INDICATING GOOD FAITH AND ABSENCE OF DECEIT.8

For its part, the Office of the Solicitor General asserts:

In the case of Ojeda, the prosecution failed to prove deceit. Ojeda never assured Chua the checks
were funded. Chua knew that the checks were issued to guarantee future payments. Furthermore,
Ojeda did not only make arrangements for payment but she fully paid the entire amount of the
dishonored checks.

In the instant case, the elements of deceit and damage were established by convincing evidence.
Petitioner Recuerdo issued the subject bank checks as payment for the pieces of jewelry
simultaneous to the transactions, that is, on the very same occasion when the pieces of jewelry were
bought. The issuance of the check by Recuerdo was the principal inducement to private complainant
to part with the subject jewelries (CA Decision, pp. 12-13). In addition, petitioner only promised to
replace the dishonored checks but she did not settle her obligations with private complainant.
Assuming that there was an offer to settle her obligations, this will not overturn the findings of the
trial court and the Court of Appeals as to the presence of deceit.

The guilt of petitioner was proven beyond reasonable doubt.

The crime of Estafa under Article 315, paragraph 2(d) of the Revised Penal Code has the following
basic elements:

Postdating or issuance of a check in payment of an obligation contracted simultaneously at the time

the check was issued;

The postdating or issuance was done when the offender had no funds in the bank, or that his funds
deposited therein were not sufficient to cover the amount of the check; and

Damage to the payee thereof (Justice Luis B. Reyes, The Revised Penal Code, Thirteenth Edition
1993, Book Two, p. 693; People v. Panganiban, 335 SCRA 354).

The existence of the foregoing elements of the crime was concretely established by the prosecution
through convincing evidence, warranting petitioner’s conviction of the offense of Estafa.

The trial court found private complainant Floro’s testimony that petitioner issued the subject checks
as payment for the purchase of pieces of jewelry simultaneous to their transactions to be categorical
and credible. There was sufficient evidence established by the prosecution that the checks were
issued by the accused to the complainant in exchange of the pieces of jewelry given to her on two
separate occasions.

The issue of deceit raised by petitioner is a factual issue and must be proved by evidence. The
finding of the trial court and the Court of Appeals that the issuance of petitioner was tainted with
fraud or deceit is a factual finding that binds this Honorable Court (Jose R. Guevarra vs. The Hon.
Court of Appeals, et al., G.R. No. 100894, prom. January 26, 1993).9
In reply, petitioner avers that she is a dentist/orthodontist with a fairly established practice at the
Medical Towers, Ibarra St., Legaspi Village, Makati City. She did not move out of her office because
she had no intention to renege on her obligations to the private complainant.

The petition is denied for lack of merit.

Estafa through false pretense or fraudulent act under Paragraph 2(d) of Article 315 of the Revised
Penal Code, as amended by Republic Act No. 4885, is committed as follows:

By postdating a check, or issuing a check in payment of an obligation when the offender had no
funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the
check. The failure of the drawer of the check to deposit the amount necessary to cover his check
within three (3) days from receipt of notice from the bank and/or the payee or holder that said check
has been dishonored for lack or insufficiency of funds shall be prima facie evidence of deceit
constituting false pretense or fraudulent act.

The essential elements of the felony are: (1) a check is postdated or issued in payment of an
obligation contracted at the time it is issued; (2) lack or insufficiency of funds to cover the check; and
(3) damage to the payee thereof.10 It is criminal fraud or deceit in the issuance of a check which is
made punishable under the Revised Penal Code, and not the non-payment of a debt.11 Deceit is the
false representation of a matter of fact whether by words or conduct by false or misleading
allegations or by concealment of that which should have been disclosed which deceives or is
intended to deceive another so that he shall act upon it to his legal injury.12 Concealment which the
law denotes as fraudulent implies a purpose or design to hide facts which the other party ought to
have.13 The postdating or issuing of a check in payment of an obligation when the offender had no
funds in the bank or his funds deposited therein are not sufficient to cover the amount of the check is
a false pretense or a fraudulent act.14

There is no false pretense or fraudulent act if a postdated check is issued in payment of a pre-
existing obligation.15As the Court emphasized in Timbal v. Court of Appeals:16

x x x In order to constitute Estafa under the statutory provisions, the act of postdating or of issuing a
check in payment of an obligation must be the efficient cause of the defraudation; accordingly, it
should be either prior to or simultaneous with the act of fraud. In fine, the offender must be able to
obtain money or property from the offended party by reason of the issuance, whether postdated or
not, of the check. It must be shown that the person to whom the check is delivered would not have
parted with his money or property were it not for the issuance of the check by the other party.

Estafa is a felony committed by dolo (with malice). For one to be criminally liable for estafa under
paragraph (2)(d) of Article 315 of the Revised Penal Code, malice and specific intent to defraud are
required.

General criminal intent is an element of all crimes but malice is properly applied only to deliberate
acts done on purpose and with design. Evil intent must unite with an unlawful act for there to be a
felony. A deliberate and unlawful act gives rise to a presumption of malice by intent. On the other
hand, specific intent is a definite and actual purpose to accomplish some particular thing.

The general criminal intent is presumed from the criminal act and in the absence of any general
intent is relied upon as a defense, such absence must be proved by the accused. Generally, a
specific intent is not presumed. Its existence, as a matter of fact, must be proved by the State just as
any other essential element. This may be shown, however, by the nature of the act, the
circumstances under which it was committed, the means employed and the motive of the accused.17
The law provides that, in estafa, prima facie evidence of deceit is established upon proof that the
drawer of the check failed to deposit the amount necessary to cover his check within three (3) days
from receipt of the notice of dishonor for lack or insufficiency of funds. A prima facie evidence need
not be rebutted by a preponderance of evidence, nor by evidence of greater weight. The evidence of
the accused which equalizes the weight of the People’s evidence or puts the case in equipoise is
sufficient. As a result, the People will have to go forward with the proof. Should it happen that, at the
trial the weight of evidence is equally balanced or at equilibrium and the presumption operates
against the People who has the burden of proof, it cannot prevail.18

There can be no estafa if the accused acted in good faith because good faith negates malice and
deceit.19 Good faith is an intangible and abstract quality with no technical meaning or statutory
definition, and it encompasses, among other things, an honest belief, the absence of malice and the
absence of design to defraud or to seek an unconscionable advantage. An individual’s personal
good faith is a concept of his own mind, therefore, may not conclusively be determined by his
protestations alone. It implies honesty of intention and freedom from knowledge of circumstances
which ought to put the holder upon inquiry. The essence of good faith lies in an honest belief in the
validity of one’s right, ignorance of a superior claim, and absence of intention to overreach
another.20 In People v. Gulion,21 the Court held that:

Good faith is a defense to a charge of Estafa by postdating a check. This may be manifested by the
accused’s offering to make arrangements with his creditor as to the manner of payment or, as in the
present case, averring that his placing his signature on the questioned checks was purely a result of
his gullibility and inadvertence, with the unfortunate result that he himself became a victim of the
trickery and manipulations of accused-at-large.22

In the present case, the prosecution adduced proof beyond reasonable doubt of the guilt of the
petitioner of the crime charged. The trial court gave credence and probative weight to the evidence
of the People and disbelieved that proferred by the petitioner.

Petitioner’s insistence of her good faith and her reliance on the ruling of this Court in the Ojeda case
were raised as a mere afterthought in a last ditch effort to secure her acquittal, as these arguments
were invoked only in her motion for reconsideration of the CA decision. In Pascual v. Ramos,23 this
Court held that if an issue is raised only in the motion for reconsideration of the appellate court’s
decision, it is as if it was never raised in that court at all.

Petitioner’s defense of good faith is even belied by the evidence of the prosecution and her own
evidence. When the postdated checks issued by petitioner were dishonored by the drawee banks
and the private complainant made demands for her to pay the amounts of the checks, she
intransigently refused to pay; she insisted that she issued and delivered the postdated checks to the
private complainant after the subject pieces of jewelry had been delivered to her. Petitioner never
offered to pay the amounts of the checks after she was informed by the private complainant that they
had been dishonored by the drawee banks, the private complainant thus charged her with estafa
before the RTC. It was only during the period of January 4, 2005 to June 27, 2005, after the CA
promulgated its decision affirming the decision of the trial court, that petitioner made several
payments to the private complainant. While petitioner appended the deposit slips24 to her motion for
reconsideration in the CA and her petition in this Court, there is no showing as to which checks they
were made in payment for. In fine, it was the spectre of a long prison term which jolted petitioner into
making remittances to the private complainant, after the CA affirmed the decision of the trial court
and increased the penalty meted on her, and not because she had acted in good faith in her
transactions with the private complainant. To reiterate, petitioner rejected the demands of the private
complainant to pay the amounts of the dishonored checks.
While it is true that nine of the 17 postdated checks petitioner issued and delivered to the private
complainant were honored by the drawee banks, such a circumstance is not a justification for her
acquittal of the charges relative to the dishonored checks. The reimbursement or restitution to the
offended party of the sums swindled by the petitioner does not extinguish the criminal liability of the
latter. It only extinguishes pro tanto the civil liability.25Moreover, estafa is a public offense which must
be prosecuted and punished by the State on its own motion even though complete reparation had
been made for the loss or damage suffered by the offended party.26 The consent of the private
complainant to petitioner’s payment of her civil liability pendente lite does not entitle the latter to an
acquittal. Subsequent payments does not obliterate the criminal liability already incurred.27 Criminal
liability for estafa is not affected by a compromise between petitioner and the private complainant on
the former’s civil liability.28

Petitioner cannot find solace in the Court’s ruling in the Ojeda case. The CA correctly refuted the
submission of the petitioner in its decision, thus:

This Court is in full agreement with the position advanced by the Office of the Solicitor General that
on account of the glaring dissimilarities between the factual backdrop of the case of Ojeda, on one
hand, and the material facts obtaining in the case at bench, on the other, the doctrine in the former
case may not be applied to benefit accused-appellant. Indeed, even accused-appellant herself was
quick to admit that the facts of her case are not entirely on all fours with those that obtained in the
case of Ojeda. At the outset, emphasis must be made of the fact that the acquittal of the accused in
the Ojeda case was brought about by a combination of reasons not obtaining in the present case.
First, the Supreme Court ruled out the existence of deceit and intent to defraud in the case of Ojeda
in view of the fact that the accused therein performed extraordinary efforts to gradually pay and
settle her monetary obligations with the private complainant, and this convinced the High Court that
the acts of the accused were not tainted with malice, bad faith and criminal intent. Verily, the
accused in the Ojeda case not only made determined and honest arrangements to pay the private
complainant, but was likewise able to actually satisfy with completeness the sums she owed the
latter, and this was evidenced by an affidavit of desistance where the private complainant
categorically declared that the accused already paid in full her monetary obligations. The facts in the
instant case, however, are totally different. Contrary to the contention of accused-appellant, she
never made a determined and earnest effort to arrange and settle with Floro with the end in view of
paying her monetary obligations. In truth, accused-appellant simply promised to pay Floro the value
of the dishonored checks that were issued in payment for the pieces of jewelry. However, that was
all there was to it, and lamentably said promise turned out to be an empty one as accused-appellant
never made good her commitment to pay for the value of the dishonored checks. Accused-appellant
never arranged a payment scheme with Floro, and as the facts of the case would disclose she never
made any gradual payment to Floro as shown by the fact that the value of the dishonored checks
remained unpaid, in direct contrast with the facts of the Ojeda case where the accused was able to
pay in full. Suffice it to say that accused-appellant failed to perform any concrete act to show that
she had the intention of paying Floro for the value of the purchased pieces of jewelry, in order to
somehow rebut the fact duly established by the prosecution that deceit attended her business
dealings with Floro. It must be reiterated that We have found that accused-appellant issued the
subject bank checks as payment for the pieces of jewelry simultaneous with her transactions with
Floro, and that was, on the very same occasion when the pieces of jewelry were purchased, first, on
the second week of December 1993, and subsequently, on February 7, 1994. It being clear that the
subject bank checks were issued simultaneous with said transactions, it likewise became evident
that deceit attended accused-appellants’ dealings with Floro for the same only goes to show that the
bum checks were issued to Floro in order to induce her to part with the pieces of jewelry in favor of
accused-appellant.

In addition to the foregoing, the High Court likewise found in the Ojeda case that the prosecution
miserably failed to adduce evidence to establish that the indispensable element of notice of dishonor
was sent to and was received by the accused therein. In the case at bench, however, it is
undisputed that after the dishonor of the subject bank checks Floro, through counsel, made repeated
formal demands requiring accused-appellant to pay for the value of the bum checks, perforce the
notice of dishonor which is required to properly prosecute and eventually convict an accused of the
crime of Estafa under Article 315, paragraph 2(d) of the Revised Penal Code has been sufficiently
met.29

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The Decision and Resolution of the
Court of Appeals are AFFIRMED. No costs.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson

CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Asscociate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above decision were reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.

ARTEMIO V. PANGANIBAN
Chief Justice

This position finds support in the case of Borromeo vs. Court of Appeals, 131 SCRA 318, 327, where
the Supreme Court, citing the cases of People vs. Clores, et al., 125 SCRA 67 and People vs.
Bautista, 81 Phil. 78, held that –

Finally, EVERY CIRCUMSTANCES AGAINST GUILT AND IN FAVOR OF INNOCENCE MUST BE

TAKEN INTO ACCOUNT and suspicion no matter how strong should not sway judgment. Where the
evidence, as here, gives rise to TWO PROBABILITIES, one consistent with the defendant’s
innocence and another indicative of his guilt, THAT WHICH IS FAVORABLE to the accused should
be CONSIDERED. The constitutional presumption of innocence continues until overthrown by proof
of guilt beyond reasonable doubt, which requires moral certainty which convinces and satisfies the
reason and conscience of those who are to act upon it.

C. In criminal cases, where there are two probabilities or where the court is faced with two conflicting
statements, one consistent with guilt and the other with innocence, that which is favorable to the
accused should be considered.
The petitioner has in her favor the presumption of innocence. Under this presumption, it is required
that where the court is confronted with two probabilities, one consistent with guilt and the other with
innocence, the later (sic) should prevail. It is thus required that every circumstance against guilt and
in favor of her innocence be duly taken into account. The proof against her must survive the test of
reason." This presumption of innocence is a "conclusion of law in favor of the accused, whereby his
innocence is not ONLY ESTABLISHED BUT CONTINUES until sufficient evidence is introduced to
overcome the proof which the law has created – that is, his INNOCENCE…."

In the case at bar, the parties gave two versions as to the circumstances surrounding their
transactions. The version of the prosecution is that the checks were issued at the time that she
parted with her pieces of jewelry. This claim is supported by the lone and uncorroborated testimony
of the private complainant.

The version of the petitioner is different. She claims that the private complainant left the pieces of
jewelry to her at her office and that she issued the checks about a week thereafter. Her claim is that
the checks were issued a few days after the private complainant had already parted with the pieces
of jewelry. The transactions were not simultaneous. This claim is in a way corroborated by the
testimony of another witness, a dental aide, who affirmed the petitioner’s testimony that in fact, it
was the private complainant who went to petitioner’s office in Makati City, and who belied private
complainant’s claim that the petitioner went to her house in Meycauayan, Bulacan.

Conformably with the constitutional presumption of innocence, the version of the petitioner, as
testified by her and corroborated by her dental aide, and which excludes the presence of deceit,
should have received more weight than the uncorroborated version of the private complainant. When
the testimonies are conflicting, the scales should tip in favor of the accused.

D. In estafa, it is of primordial significance for the prosecution to prove the exact date of transaction
and the exact date of the issuance of the checks

In Crim. Case Nos. 275-M-94 and 2807-M-94, the prosecution could not even place the specific
dates when the pieces of jewelry were delivered to the petitioner and the checks were issued to the
private complainant, save for saying that the offense happened in the second week of December
1993. In the prosecution for estafa under Art. 315, par. 2(b) of the Revised Penal Code, the date
when the reciprocated receipt of benefits took place is crucial.

When the law and jurisprudence require as one of the elements for estafa that the check should
have been issued as the "IMMEDIATE CONSIDERATION for the RECIPROCATED RECEIPT of
benefits", said checks should have been issued "CONCURRENTLY WITH" and "IN EX[C]HANGE"
for the material gain derived. If the checks were issued a day or two after the receipt of benefits,
there will no longer be a case of estafa since the obligation would already be pre-existing. Therefore,
it is of primordial significance for the prosecution to prove the EXACT DATE OF THE
TRANSACTION and the EXACT DATE of the issuance of the checks. Otherwise, any conviction for
estafa would be impermissibly premised on conjectures, suppositions, and conclusions of facts. Any
such conviction would fail to meet the beyond-reasonable-doubt standard required in criminal cases.

Footnotes

1Penned by Associate Justice Rosmari D. Carandang with Associate Justices Andres B.

Reyes, Jr. and Monina Arevalo-Zenarosa concurring, rollo, pp. 38-56.
2 Rollo, pp. 39-44.

3 Id. at 44.

4 Id. at 48.

5 G.R. Nos. 104238-58, June 3, 2004, 430 SCRA 436.

6 Rollo, pp. 22-23.

7 Supra note 5.

8 Rollo, pp. 29-30.

9 Id. at 114-117.

10 People v. Ojeda, supra note 5, at 444-445.

11 Vallarta v. Court of Appeals, May 29, 1987, 150 SCRA 336, 345.

Guinhawa v. People, G.R. No. 162822, August 25, 2005, 468 SCRA 278, 302, citing
12

People v. Balasa, 356 Phil. 362, 382-383 (1998).

13 Id. at 302.

14 Vallarta v. Court of Appeals, supra note 11, at 344 (1986).

15 People v. Go Bio, Jr., 226 Phil. 170, 182 (1986).

16 423 Phil. 617, 622 (2001).

17 W.L. Burdick, Law of Crime, Vol. I 139-140 (1946).

18Bautista v. Sarmiento, G.R. No. L-45137, September 23, 1985, 138 SCRA 587, 593
(1985).

19 People v. Ojeda, supra note 5 at 445.

20Philippine National Bank v. De Jesus, G.R. No. 149295, September 23, 2003, 411 SCRA
557, 561.

21 402 Phil. 653 (2001).

22 Id. at 669.

23 433 Phil. 449, 459 (2002).

24 Rollo, pp. 67-70.

25 Sajot v. Court of Appeals, 364 Phil. 182, 187 (1999).

 26 People v. Ladera, 398 Phil. 588, 602 (2002).

27 See Dayawon v. Badilla, A.M. No. MTJ-00-1309, September 6, 2000, 339 SCRA 702, 707

28 See People v. Ladera, supra note 26 at 602.

29 Rollo, pp. 59-61.

SECOND DIVISION

G.R. No. L-68969 January 22, 1988

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
USMAN HASSAN y AYUN, respondent.

SARMIENTO, J.:

This is a pauper's appeal of the decision 1 of the Regional Trial Court of Zamboanga City, Ninth Judicial Region Branch XIII, dated January
25, 1984, which "finds the accused USMAN HASSAN y AYUN guilty beyond reasonable doubt as principal of the Crime of MURDER, and
there being neither aggravating nor mitigating circumstance attending the commission of the crime, and pursuant to Paragraph No. 1 of
Article 64 of the Revised Penal Code, hereby imposes upon the said accused the penalty of RECLUSION PERPETUA and all its accessory
penalties; to indemnify the heirs of the deceased victim Ramon Pichel, Jr. y Uro the amount of P12,000.00 and to pay the costs." 2

Usman Hassan was accused of murder for stabbing to death Ramon Pichel, Jr. y Uro, 24, single,
and a resident of Zamboanga City. 3 At the time of his death on July 23,1981, the deceased was
employed as manager of the sand and gravel business of his father. On the other hand, Hassan was
an illiterate, 15-year-old pushcart cargador. 4

The quality of justice and the majesty of the law shine ever brightest when they are applied with
more jealousy to the poor, the marginalized, and the disadvantaged. Usman Hassan, the herein
accused-appellant, belongs to this class. At the time of the alleged commission of the crime, he was
poor, marginalized, and disadvantaged. He was a flotsam in a sea of violence, following the odyssey
of his widowed mother from one poverty-stricken area to another in order to escape the ravages of
internicine war and rebellion in Zamboanga del Sur. In the 15 years of Hassan's existence, he and
his family had to evacuate to other places for fear of their lives, six times. His existence in this world
has not even been officially recorded; his birth has not been registered in the Registry of Births
because the Samal tribe, to which he belongs, does not see the importance of registering births and
deaths.

Usman was convicted on the bases of the testimony of a lone eyewitness for the prosecution and
the sloppiness of the investigation conducted by the police investigator, Police Corporal Rogelio
Carpio of the Homicide and Arson Section of the Zamboanga City Police Station, who also testified
for the prosecution.

We rule that Usman Hassan's guilt was not proved beyond reasonable doubt and that Usman
Hassan must, therefore, be set free.

The lone eyewitness for the prosecution is Jose Samson, 24 years old when he testified, married,
and a resident of Zamboanga City. On the day of the killing, he was employed at the sand and
gravel business of the father of the deceased but was jobless at the time of his examination-in-chief
on February 3, 1982.

He testified that he was with Ramon Pichel, Jr. at about 7:00 o'clock in the evening of July 23, 1981;
that he was a backrider in the motorcycle of Ramon when they went to buy mangoes at Fruit
Paradise near the Barter Trade Zone in Zamboanga City that while he was selecting mangoes, he
saw a person stab Ramon who was seated at his red Honda motorcycle which was parked about
two or three meters from the fruit stand where he Samson) was selecting mangoes; that he saw the
assailant stab Ramon "only once" and that after the stabbing, the assailant ran towards the PNB
Building. When asked at the cross-examination if he knew the assailant, Samson said, "I know him
by face but I do not know his name." 5

This sole eyewitness recounted the stabbing thus: "While Ramoncito Pichel, Jr. was holding the
motorcycle with both of his hands, the assailant come from behind, held his left hand and stabbed
him from behind on his chest while the victim was sitting on the motorcycle." He claimed that he was
able to see the assailant because it was very bright there that Ramon was facing the light of a
petromax lamp, and that all these happened in front of the fruit stand a — distance of about 6 to 7
meters from the side of the road.

Samson described the assailant as wearing a white, short-sleeved t-shirt and maong pants, but "he
did not see if the aggressor was wearing shoes," that the assailant stabbed Ramon with a knife but
"he did not exactly see what kind of knife it was, and he did not see how long the knife was He said
he brought the wounded Ramon to the Zamboanga City General Hospital in a tricycle.

On cross-examination, Samson testified:

xxx xxx xxx

Q When you rushed Ramon Pichel, Jr. to the hospital you came to
know that he was already dead, is that correct?

A Yes, sir, I learned that he was already dead.

Q In the hospital, were you investigated by the police?

A They just asked the description of that person as to his attire and
his appearance.

Q And it was while in the hospital that you told them the description of
the one who stabbed Ramon Pichel, Jr.?

A Yes, Sir.

Q And the body of Ramon Pichel, Jr., was brought to the Funeraria La Merced?

A Yes, sir,

Q Can you recall what time was that?

A I do not know what time was that.

 Q And it was all La Merced Funeraria that the police brought to you the accused?

A...

Q For Identification?

A Yes, sir.

Q And he was alone when you Identified him?

A Yes he was alone.

Q Aside from working with the Pichel family in their sand and gravel business, do you
have any blood relationship with them?

A Yes. sir. 6

(Emphasis supplied)

xxx xxx xxx

What comes as a surprise is that Samson's statement 7 which was taken only on July 25, 1981, two
days after the stabbing, and sworn to only on July 27, 1981, also two days after it was taken, or four
days after the killing, was never presented or mentioned by the prosecution at all. The information
was practically forced out of Police Corporal Rogelio P. Carpio, a witness for the People, during his
cross-examination. 8 The sworn statement contained the following questions and answers:

xxx xxx xxx

Q-14. What and please narrate it to me briefly in your own words, the
incident you are referring?

A-14. While I was busy selecting some mangoes, I saw unidentified

person whom I can recognize by face if seen again embraced my
companion Ramon Pitcher Jr. while the latter was aboard his
motorcycle parked within the area. That this person without much
ado, and armed with a knife suddenly stabbed him (Ramon). That by
coincidence to this incident, our eye met each other and immediately
thereafter, he fled the area toward the Philippine National Bank
(PNB). That this unidentified person was sporting a semi-long hair,
dressed in White Polo-Shirt (Short sleeve), maong pants height to
more or less 5'5, Dark Complexion. That as this unidentified person
fled the area I immediately came to aid my companion, Ramon
Pitcher, Jr., and rushed him to Zamboanga General Hospital, on
board a Tricycle. That may companion (Ramon) did not whispered
(sic) any words to me for he was in serious condition and few minutes
later, he expired.

Q-15. Was tills unidentified person was with companion when he

attack (sic) Ramon Pitcher Jr.?
 A-15. He was alone Sir.

Q-16. Can you really Identified (sic) this person who attacked and
stabbed your companion, Ramon Pitcher, Jr., that evening in
question?

A-16. Yes, Sir,

Q-17. Do you still remember that confrontation we made at the Office

of La Merced Funeral Homes, wherein you were confronted with one
Usman Hassan, whom this Officer brought along?

A-17. Yes, Sir.

Q-18. Was he the very person, who attacked and stabbed your
companion, Ramon Pitcher, Jr.?

A-18. Yes, Sir, he was the very person who attacked and stabbed my
companion, Ramon Pitcher, Jr., that evening in question.

Q-19. Why?

A-19. Because his face and other physical appearance were fully
noted by me and this I cannot forget for the rest of my life.

Q-20. Before this incident, was there any altercation that had ensued
while in the process of buying some mangoes in that area?

A-20. None Sir.

Q-21. Were you able to note what kind of knife used by said Usman
Hassan in stabbing your companion, Ramon Pitcher Jr.?

A-21: None Sir,

Q-22. Well, I have nothing more to ask of you, do you have anything
more to say, add or alter in this statement?

A-22. No more Sir.

Q-23. Are you willing to give a supplemental statement if needed in

the future?

A-23. Yes, Sir. 9

(Emphasis supplied)

xxx xxx xxx

The version of the sole eyewitness appearing in his statement 10 is substantially the same as that
embodied in the "Case Report," Exhibit it "C", by Police Corporal Carpio, also admitted a s Exhibit
"2." This exhibit for the prosecution confirms the sworn statement of witness Samson that an
unidentified person, whom he recognized only by face, appeared and without any provocation, the
latter embraced the victim and stabbed the same allegedly with a knife." The rest of the Case
Report: is also significant in that it confirms the confrontation between the accused and Jose
Samson in the funeral parlor arranged by the police Investigator and prosecution witness, Corporal
Carpio.

xxx xxx xxx

From this end, a follow-up was made within the premises of the Old Barter Trade,
wherein the person of USMAN HASSAN Y AYUN, of Paso Bolong, this City, was
arrested in connection with the above stated incident. That this Officer and
companions arrested this person Usman due to his physical appearance, which was
fully described by victim's companion. Jose Samson. During his arrest, a knife,
measuring to more or less seven (7) inches in blade was confiscated in his
possession. The person of Usman Hassan was brought along at the La Merced
Funeral Homes for a confrontation with victims companion, Jose Samson and in this
confrontation, Jose Samson positively Identified said Usman Hassan as the very
person who stabbed the victim.

Usman Hassan, on the other hand, denied the charges levelled against hub and
admitted ownership of said knife; claiming among other things that he used said knife
for slicing mangoes. 11

xxx xxx xxx

We hold that the evidence for the prosecution in its entirety does not satisfy the quantum of proof —
beyond reasonable doubt — required by the Constitution, the law, and applicable jurisprudence to
convict an accused person. The said evidence denies us the moral certainty which would allow us to
pronounce, without uneasiness of conscience. Usman Hassan y Ayun guilty of the killing of the
deceased Ramon Pichel, Jr. y Uro, and condemn him to life imprisonment and in effect turning him
into a flotsam again in a sea of convicted felons in which he would be a very young stranger.

In evaluating the worth of the testimony of the lone eyewitness for the prosecution against the denial
and alibi of the accused, value judgment must not be separated from the constitutionally guaranteed
presumption of innocence.

When the evidence for the prosecution and the evidence for the accused are
weighed, the scales must be tipped in favor of the latter. This is because of the
constitutional presumtion of innocence the accused enjoys as a counter-foil to the
awesome authority of the State that is prosecuting him.

The element of doubt, if reasonable in this case, must operate against the inference
of guilt the prosecution would draw from its evidence. That evidence, as it happens,
consists only of the uncorroborated statement of the two policemen which, as
previously observed, is flawed and therefore suspect. 12

The testimony of Jose Samson, the lone eyewitness, is weak and unconvincing. And so with the
evidence sought to be introduced by Police Corporal Carpio. We discover, for example, that the
expert testimony of the medico-legal officer of the National Bureau of Investigation, Dr. Valentin
Bernalez, presented by the prosecution, contradicted, on material points, the testimony of the one
eyewitness, Jose Samson. While Samson averred on the witness stand that he saw the assailant
stab the deceased "from behind on his chest" 13 only once, the NBI medico-legal officer Identified two
stab wounds, one at the front portion of the chest at the level and third rib, (sic) and another stab
wound located at the left arm posterior aspect." 14 The same medical expert also concluded from the
nature and location of the chest wound, which was the cause of death, that the same was inflicted
on the victim while the alleged accused was in front of him." 15

The investigation of this case by the Homicide/Arson Section of the Zamboanga Southern Police
Sector, 16 at Zamboanga City, particularly by Police Corporal Rogelio P. Carpio, leaves much to be
desired. For one, we are not satisfied with the procedure adopted by the police investigators in the
Identification of the accused as the assailant. We have no doubt that Usman Hassan was
"presented" alone 17 to Jose Samson by the police investigator and prosecution witness, Police
Corporal Carpio, and his police companions, at the office of the La Merced Funeral Homes in
Zamboanga City. As correctly termed by the very evidence 18 of the prosecution, the procedure
adopted by the police investigators was a confrontation" between Jose Samson, Jr. and Usman.
Earlier, on direct examination, Corporal Carpio testified that Usman was alone when he was brought
to Samson for confrontation in the funeral parlor. However, on cross-examination, Carpio made a
turnabout by saying that the accused was Identified by Samson in a "police line-up;" this
tergiversation we dare say, was an afterthought, more the result of an over or careless cross-
examination, augmented by the leading questions 19 of the trial judge rather than a fastidiousness if
not sincerity, on the part of the police investigator, to honestly correct erroneous statements in his
examination-in-chief. The fact remains that both Samson and the accused testified clearly and
unequivocably that Usman was alone when presented to Samson by Carpio. There was no such
police line-up as the police investigator, to honestly correct erreoneous statements in his
examination-in-chief. The fact remains that both Samson and the accused testified clearly and
unequivocably that Usman was alone when presented to Samson by Carpio. There was no such
police investigator claimed on second thought.

The manner by which Jose Samson, Jr. was made to confront and Identify the accused alone at the
funeral parlor, without being placed in the police line-up, was "pointedly suggsestive, generated
confidence where there was none, activated visual imagination, and, all told, subserted his reliability
as eyewitness. This unusual, coarse, and highly singular method of Identification, which revolts
against the accepted principles of scientific crime detection, alienates the esteem of every just man,
and commands neither our respect nor acceptance." 20

Moreover, the confrontation arranged by the police investigator between the self-proclaimed
eyewitness and the accused did violence to the right of the latter to counsel in all stages of the
investigation into the commission of a crime especially at its most crucial stage — the Identification
of the accused.

As it turned out, the method of Identification became just a confrontation. At that critical and decisive
moment, the scales of justice tipped unevenly against the young, poor, and disadvantaged accused.
The police procedure adopted in this case in which only the accused was presented to witness
Samson, in the funeral parlor, and in the presence of the grieving relatives of the victim, is as tainted
as an uncounselled confession and thus falls within the same ambit of the constitutionally
entrenched protection. For this infringement alone, the accused-appellant should be acquitted.

Moreover, aside from this slipshod Identification procedure, the rest of the investigation of the crime
and the preparation of the evidence for prosecution were done haphazardly, perfunctorily, and
superficially. Samson was not investigated thoroughly and immediately after the incident. As
previously mentioned, his statement was taken by the investigator only two days after the murder of
Ramon Pichel, Jr. and sworn only two days after it had been taken. Similarly, there is nothing in the
record to show that the fruit vendor—from whom Samson and the deceased were buying mangoes
that fateful evening and who certainly must have witnessed the fatal stabbing—was investigated, or
why he was not investigated. Nor is any explanation given as to why the companion 21 of the accused
at the time Corporal Carpio arrested him (accused) 'sitting on a pushcart " 22 at about 8:00 P.M.
(around 7:00 P.M., according to Usman) of that same evening near the scene of the crime, was not
also investigated when he could have been a material witness of the killing or of the innocence of the
accused. In addition, the knife and its scabbard, 23Confiscated by Carpio from Usman (tucked on the
right side of his waist") at the time of his arrest, were not even subjected to any testing at all to
determine the presence of human blood which could be typed and compared with the blood type of
the deceased. A crime laboratory test — had Carpio or the prosecuting fiscal, or even the trial judge,
insisted on it — would have revealed whether or not the knife in question (confiscated from the
accused by Carpio one hour after the alleged commission of the crime) had indeed been the weapon
used to kill Ramon. The police investigator instead nonchalantly dismissed this sin of omission by
saying that the knife could have been cleaned or the bloodstain could have been taken away. 24 This
presumption of the deadly weapon's having been "cleaned" of bloodstains is tantamount to
pronouncing the accused of being guilty.

Our doubt about the guilt of the accused is further deepened by a resolution, 25 in a separate
case, 26 of Assistant City Fiscal of Zamboanga City and deputized Tanod bayan Prosecutor Pablo
Murillo, which clearly reveals that on July 24, 1981, a day after the killing of Ramon Pichel, Jr., a
similar stabbing took place at Plaza Pershing near the place of the earlier incident, with the suspect
in that frustrated homicide case being a certain Benhar Isa, 'a notorious and a deadly police
character" in Zamboanga City, with a long record of arrests. In that resolution, Fiscal Murillo said the
same Benhar Isa was tagged as 'also a suspect in the stabbing of Ramon Pichel, Jr. to death and
the stabbing of Pastor Henry Villagracia at the Fruit Paradise, this City." The said resolution further
states that "with regards to this incident or witnesses ever testified for fear of possible reprisals." 27

The trial of Usman Hassan began on October 27, 1981. Benhar Isa himself was killed by a
policeman on August 28, 1981, while he (Isa) "was apparently under the influence of liquor armed
with a knife (was) molesting and extorting money from innocent civilians' and "making trouble." 28 The
records of the case at bar do not show any attempt on the part of Corporal Carpio, or any other
police officer, to investigate or question Benhar Isa in connection with the killing of Pichel, Jr. Was it
fear of the notorious police character that made the police officers disregard the possible connection
between the slaying of Ramon and that of the person (Harun Acan y Arang of the Ministry of
National Defense) 29 who was allegedly stabbed by Benhar Isa a day after the killing of Ramon Jr.?
And yet questioning Isa might have provided that vital link to the resolution of Usman's guilt or
innocence. But why should the police officers investigate Isa when Usman Hassan was already in
custody and could be an available fall guy? Usman Hassan, instead, became a victim of a grave
injustice. Indeed, Usman Hassan is too poor to wage a legal fight to prove his innocence. And he is
so marginalized as to claim and deserve an honest-to-goodness, thorough, and fair police
investigation with all angles and leads pursued to their logical, if not scientific, conclusions. Sadly
circumstanced as he is, the authority of the State was too awesome for him to counteract.

The appealed decision made much ado of the admission by Usman "that he was arrested at the
former barter trade, which is a place just across the place of the stabbing at the Fruit
Paradise." 30 The trial judge found it "therefore strange that on the very evening of the stabbing
incident he was still at the barter trade area by 8:00 o'clock in the evening when he usually comes to
the city proper at about 6:00 o'clock in the morning and goes home at past 5:00 o'clock and
sometimes 6:00 o'clock in the afternoon." 31 Usman's explanation — that, at around 7:00 o'clock
P.M., he was waiting for transportation to take him home — was found by the trial court as 'flimsy
and weak since he did not explain why he had to go home late that evening." 32 But the whole trouble
is nobody asked him. The trial judge did not propound any single question to the accused, and only
three to his mother on innocuous matters, by way of clarification, if only to put on record what the
mother and son could articulate with clarity. Taking into account their poverty and illiteracy, the
mother and son needed as much, if not more, help, than the trial judge extended to the prosecution
witnesses during their examination by asking them clarificatory and mostly leading questions. In that
sense and to that extent, the accused was disadvantaged.

A fact that looms large, though mutely to testify on the innocence of the accused but the importance
of which was brushed away by the trial judge was the presence of the accused near the scene
(about 100 to 150 meters away) soon after the stabbing (he testified at around 7:00 P.M. although
Police Corporal Carpio stated it was 8:00 P.M.) where he was found sitting on his pushcart with a
companion. If he were the assailant, he would have fled. But the trial court instead indulged in
conjecture, foisting the probability that the accused 'was lulled by a false sense of security in
returning to the place (of the stabbing), when no police officers immediately responded and
appeared at the scene of the crime," adding 'there are numerous cases in the past where criminals
return to the scene of their crimes, for reasons only psychologist can explain." 33 It must have
escaped the trial court's attention that Usman has no criminal record, and, therefore, he could not be
generally classed with criminals. In the second place, the trial court's rationalization ignores the
biblical truism recognized by human nature and endorsed with approval by this Court that "(T)he
wicked flee when no man pursueth but the righteous are as bold as a lion." 34

And now as a penultimate observation, we could not help but note the total absence of motive
ascribed to Usman for stabbing Ramon, a complete stranger to him. While, as a general rule, motive
is not essential in order to arrive at a conviction, because, after all, motive is a state of
mind, 35 procedurally, however, for purposes of complying with the requirement that a judgment of
guilty must stem from proof beyond reasonable doubt, the lack of motive on the part of the accused
plays a pivotal role towards his acquittal. This is especially true where there is doubt as to the
Identity of the culprit 36 as when 'the Identification is extremely tenuous," 37 as in this case.

We can not end this travail without adverting to the cavalier manner in which the trial court
disregarded the claimed young age of Usman Hassan.

The defense claims that the accused Usman Hassan is a minor, basing such claim
on the testimony of Lahunay Hassan, the mother of said accused, who declared that
her son Usman Hassan, who is one of her four (4) children, was born in the year
1967. She testified that she was just told by a person coming from their place about
the year of the birth of her son Usman. However on cross-examination, Lahunay
Hassan cannot even remember the date or year of birth of her other children. The
failure of Lahunay Hassan to remember the date or year of birth of her children is of
course understandable, considering that she is unschooled and she belongs to a
tribe that does not register births, deaths or marriages, however, it is strange that she
only took pains to find out the year of birth of her son Usman. For this reason, the
Court granted a motion of the defense on September 13, 1982, to have the herein
accused examined by a competent dentist to determine his age. However, the
findings of the dentist of Zamboanga General Hospital which is marked as Exhibit "5"
shows the following: "age cannot be determined accurately under present mouth
conditions. Approximately, he can be from 14 to 21 years of age." This simply means
that the herein accused could either be 14 years of age or 21 years of age, or any
age in between those aforestated years. From the observation of this court, the
accused Usman Hassan was about 18 years of age at the time he committed this
crime and this observation is based on his personal appearance, his size and facial
features and other personal characteristics, hence he can not be classified as a
youthful offender under Article. 189 of Presendential Decree No. 603, as ammended
by Presedential Decree No. 1179. In the case of U.S. vs. Mallari, 29 Phil. 13 and
 People vs. Reyes and Panganiban, CA 48 O.G. 1022, cited in the Edition, Page 680,
it was ruled by the Supreme Court that "In cases where the age of the culprit is at
issue as a basis for claiming an exempting mitigating circumstance, it is incumbent
upon the accused to establish that circumstance ad any other elements of defense. 38

Considering that the age of the accused could exempt him from punishment or cause the
suspension of his sentence under Articles 12 and 80, respectively of the Revised Penal Code, if
found guilty, more meticulousness and care should have been demanded of medical or scientific
sources, and less reliance on the observation of the judge as had happened in this case. The
preliminary findings of the dentist that the accused could be anywhere between fourteen to twenty
one years, despite the difficulty of arriving at an accurate determination due to Hassan's mouth
condition, would have placed the trial judge on notice that there is the probability that the accused
might be exempted from criminal liability due to his young age. All the foregoing indicates that the
accused had not been granted the concern and compassion with which the poor, marginalized, and
disadvantaged so critically deserve. It is when judicial and police processes and procedures are
thoughtlessly and haphazardly observed that cries of the law and justice being denied the poor are
heard. In any event, all this would not be of any moment now, considering the acquittal of the
accused herein ordered.

WHEREFORE, the decision is hereby REVERSED, and the accused Usman Hassan y Ayun is
ACQUITTED of the crime charged. His release from confinement is hereby Ordered, unless he is
held for another legal cause. With costs de oficio.

SO ORDERED.

Yap (Chairman), Paras and Padilla, JJ., concur.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

That the testimony of the lone eyewitness is weak and unconvincing.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

That the testimony of the lone eyewitness is weak and unconvincing.

Footnotes
1 Rendered by the Honorable Carlito A. Eisma, Regional Trial Judge.

2 Decision, 12; Rollo, 35.

3 Exhibit "A", Death Certificate.

4 T.S.N., 2, July 28,1982.

5 T.S.N., 5 February 3, 1982.

6 T.S.N.,., 11 February 10, 1982.

7 Exhibit "I", Original Records, 4-5.

8 T.S.N., S. April 28, 1982.

9 Exhibit "1", Id.

10 Id.

11 Exhibit "C", (also Exhibit "2').

12 (Sec. 19, Art. IV, 1973 Constitution, Identical with Sec. 14(2), Art. III, 1987
Constitution; People vs. Pecardal, No. L-71381, November 24,1986,145 SCRA 652-
653; People v. Opida, No. L-46272, June 13, 1986, 142 SCRA 295; Liwanag Aguirre
v. People, G.R. No. 56013, October 30, 1987.

13 T.S.N., 5-6, February 3, 1982.

14 T.S.N., 7, October 27, 1981, Exhibit "B."

15 Id., 10.

16 Exhibits "C" and "D".

17 T.s.n. 11 February 10, 1982. T.s.n., 4 April 28, 1982, Exh. "1", Original
Records, Id.

18 Exh. "C", T.s.n., April 28,1982, Id.

19 T.S.N. 10-11, Id.

20 People v. Cruz. No. L-24424, March 30, 1970, 32 SCRA 181, 186; People vs.
Olvis, et al., No. L-71092, September 30, 1987; Chavez Court of Appeals. No. L-
29169, 24 SCRA 663, 679.

21 T.S.N., 4, April 28,1982.

22 Id.
23 Exhibits "E" and "E-1", respectively.

24 T.S.N., 9, April 28, 1982.

25 Exhibit "4".

26 People of the Philippines, Complainant, versus Pat. Hamid Akbar, Respondent,

Slip No. 734-81 for HOMICIDE."

27 Id.

28 Id.

29 Id.

30 Decision, 10, Original Records, 113.

31 Id.

32 Id.

33 Decision, 8 Original Records 111.

34 People of the Philippines vs. Rolly Anquillano alias Dagol, G.R. No. 72318, 4.

35 People vs. Jacinto, L-51908, November 29, 1984, 133 SCRA 498.

36 People vs. Verzo, L-22517, December 26, 1967, 21 SCRA 1403; People vs.
Pajenado, L-26458, January 30, 1976, 69 SCRA 172; People vs. Dueno L-31102,
May 5, 1979, 90 SCRA 23; People vs. Manalo, L-45088, February 28, 1985, 135
SCRA 84.

37 People vs. Pervelo, L-50631, June 29, 1981, 105 SCRA 236, 238.

38 Decision, 9, Original Records, 112.