Republic of the Philippins before the Regional Trial Court of Quezon City, Branch 104.
Said
SUPREME COURT
Manila
EN BANC  accused without any authority of law, did, then and there,
G.R. Nos. 83837-42 April 22, 1992
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. MAXIMIANO C. ASUNCION, Presiding Judge of Branch 104, RTC,
Quezon City, PATERNA RUIZ, NOLI G. NARCA, FR. NICK RUIZ, LYDIA
R. NARCA, RODOLFO CORTEZA and TOMAS DOMINADO, respondents.
NOCON, J.:
In a Petition for certiorari filed under Rule 65 of the Rules of Court, the
People raise the issue of whether the crime of illegal possession of firearms,
ammunition and explosives, punishable under P.D. 1866, is absorbed by the
crime of subversion, i.e., membership in a subversive organization,
punishable under R.A. 1700, as amended.
The People filed this petition assailing the Resolution dated May 4, 1988 of
respondent Judge Maximiano C. Asuncion, granting the motion of private
respondents to quash the Information charging them with violation of P.D.
1866, as being void ab initio and the order dated June 8, 1988 denying
petitioner's motion for reconsideration of said resolution.
Private respondents Paterna Ruiz, Noli Narca, Fr. Nick Ruiz, Lydia Narca,
Rodolfo Corteza, and Tomas Dominado, were charged with Subversion
under R.A. 1700 before the Metropolitan Trial Court of Quezon City, Branch
40, based on the following information filed on February 10, 1988:
That on or about the 1st and 2nd day of February, 1988 in
Quezon City, Metro Manila Philippines and within the
jurisdiction of this Honorable Court, the above-named
accused, conspiring together, confederating with and
mutually helping one another by overt acts with the common
objective to overthrow the duly constituted government of the
Republic of the Philippines, did, then and there, willfully and
unlawfully and feloniously affiliate themselves with, become
and remain members of the Communist Party of the
Philippines/National Democratic Front and/or its successor
or of any subversive association in violation of said law. 1
On February 12, 1988, six separate informations for violation of P.D. 1866
(Illegal Possession of Firearms) were filed against the same respondents
Informations in substantially identical language allege:
That on or about the (1st and 2nd days) of February the
willfully, unlawfully and feloniously have in (his/her)
possession and control and custody one (cal .45 pistol,
armalite rifle, handgranade, fragmentation granade, M-14
rifle), without first securing any license/permit from the
proper authority and that said firearm is being used in
support and furtherance of the crime of subversion or
rebellion. 2
The facts 3 as presented by the prosecution reveal that sometime in February
1988, elements of the Intelligence Service of the Armed Forces of the
Philippines apprehended the private respondents in separate operations.
Various ammunitions, firearms, and explosives were found in their
possession, while subsequent searches in their respective hide-outs resulted
in the confiscation of several subversive materials, including documents
showing that they are ranking members of the Communist Party of the
Philippines/New People's Army, or are mere members.
Private respondents, in their motion to quash, 4 argued that the filing of two
(2) separate informations for each of the accused violates the rule on double
jeopardy, and that there being only a single criminal intent, the other offense
of illegal possession of firearms, ammunition and explosives should be
absorbed in the charge of violation of R.A. 1700, following the doctrine
in People v.  Hernandez. 5
The respondent Judge, in his questioned resolution, agreed with this
contention and held:
After evaluating the grounds and the arguments in support of
the same, the Court is of the opinion that the motion to
quash, as prayed for should be GRANTED.
Applying by analogy the doctrine laid down in the case
of People v. Hernandez (99 Phil. 515), the possession of
firearms, ammunition and explosives to which all the
accused are charged before this Court is a constitutive
ingredient of the crime of subversion and, hence, absorbed
by the same and cannot be punished separately. Deadly
weapons are needed and necessary to generate the kind of
force and violence to accomplish the purpose of subversion.
 As pointed out by Atty. Poncevic Ceballos, counsel for the
accused, the elements of force, violence and other illegal
means mentioned in the law (R.A., 1700 as amended), may
be done with the use of violence, explosives and ammunition
or the possession thereof. 6 (Emphasis supplied)
It should be recalled that in People v. Hernandez, supra, and even in the
more recent cases of Enrile v. Amin, 7and Enrile v.  Salazar, 8 the issue
resolved is that the crime of rebellion cannot be complexed with, nor may a
separate information be filed, for violation of common crimes, since force and
violence are already necessary ingredients of the same.
Private respondents do not dispute the fact that rebellion is distinct from
subversion. However, they want to adopt by analogy existing jurisprudence
on rebellion to subversion on the theory that both crimes are political
offenses intended to destabilize and overthrow the government with the use
of force, violence or other illegal means. 9 The trial court went along with
respondents when it stated:
. . . The possession of said items by all the accused, as
alleged in the information, is the very element of force,
violence, or other illegal means in the crime of subversion.
So that the crime of alleged possession of firearms in
furtherance of rebellion or, subversion cannot be separated
from the charge of subversion. the former crime being
merely an element of the latter crime. 10
We cannot agree.
If We are to espouse the theory of the respondents that force and violence
are the very essence of subversion, then it loses its distinction from rebellion.
In People v. Liwanag,11 the Court categorically distinguished subversion from
rebellion, and held:
Violation of Republic Act No. 1700, or subversion, as it is
more commonly called, is a crime distinct from that of actual
rebellion. The crime of rebellion is committed by rising
publicly and taking up arms against the Government for any
of the purposes specified in Article 134 of the Revised Penal
Code; while the Anti-Subversion Act (Republic Act No. 1700)
punishes affiliation or membership in a subversive
organization as defined therein. In rebellion, there must be a
public uprising and taking of arms against the Government;
whereas, in subversion, mere membership in a subversive
association is sufficient and the taking up of arms by a
member of a subversive organization against the
Government is but a circumstance which raises the penalty
to be imposed upon the offender. (Emphasis supplied)
Furthermore, in the case of Buscayno vs.  Military Commissions, 12 this Court
said that subversion, like treason, is a crime against national security, while
rebellion is a crime against public order. Rising publicly and taking arms
against the Government is the very element of the crime of rebellion. 13 On
the other hand, R.A. 1700 was enacted to outlaw the Communist Party of the
Philippines (CPP), other similar associations and its successors because
their existence and activities constitute a clear, present and grave danger to
national security. 14
The first Whereas clause of R.A. 1700 states that the CPP is an organized
conspiracy to overthrow the Government, not only by force and violence
but also by deceit, subversion and other illegal means. This is a recognition
that subversive acts do not only constitute force and violence (contra to the
arguments of private respondents), but may partake of other forms as well.
One may in fact be guilty of subversion by authoring subversive materials,
where force and violence is neither necessary or indispensable.
Private respondents contended 15 that the Court in Misolas
16
v.  Panga   impliedly ruled that if an accused is simultaneously charged with
violation of P.D. 1866 and subversion, the doctrine of absorption of common
crimes as applied in rebellion would have found application therein. The
respondents relied on the opinion of this Court when it said:
. . . in the present case, petitioner is being charged
specifically for the qualified offense of illegal possession of
firearms and ammunition under PD 1866. HE IS NOT BEING
CHARGED WITH THE COMPLEX CRIME OF
SUBVERSION WITH ILLEGAL POSSESSION OF
FIREARMS. NEITHER IS HE BEING SEPARATELY
CHARGED FOR SUBVERSION AND FOR ILLEGAL
POSSESSION OF FIREARMS. Thus, the rulings of the
Court in Hernandez, Geronimo and  Rodriguez find no
application in this case. 17
This is however a mere obiter. In the above case, the Court upheld the
validity of the charge under the third paragraph of Section 1 of P.D. 1866.
The Court opined that the dictum in the Hernandez case is not applicable in
that case, considering that the legislature deemed it fit to provide for two
distinct offenses: (1) illegal possession of firearms qualified by subversion
(P.D. 1866) and (2) subversion qualified by the taking up of arms against the
Government (R.A. 1700). "The practical result of this may be harsh or, it may
pose grave difficulty on an accused in instances similar to those that obtain in
the present case, but the wisdom of the legislature in the lawful exercise of its
power to enact laws is something that the Court cannot inquire into . . ." 18
The Court further said:
Undeniably, it is easier to prove that a person has unlawfully
possessed a firearm and/or ammunition under P.D. 1866
than to establish that he had knowingly, willfully and by overt
acts affiliated himself with, became or remained a member of
the Communist Party of the Philippines and/or its successor
or of any subversive organization under R.A. 1700, as
conviction under the latter "requires that membership must
be knowing or active, with specific intent to further the illegal
objectives of the Party" (quoting from People v.
Ferrer, supra).
However, that the same act may be penalized under two
different statutes with different penalties, even if considered
highly advantageous to the prosecution and onerous to the
accused, will not necessarily call for the invalidation of the
third paragraph of Section 1 of P.D. 1866 which provides for
the higher penalty. 19
On the issue of whether the filing of the subsequent information constitutes
double jeopardy, the trial court in its resolution articulated, thus:
On the question of double jeopardy, the Court agrees with
the observation of the herein accused that the filing of two
separate informations against each of the accused constitute
a violation of their constitutional right of not being twice put in
jeopardy of punishment for the same offense where it can be
shown that the offenses in question arise from a single
criminal intent. (People v. Elkanish, 90 Phil. 53)
The case of People v.  Elkanish, 20 relied upon by the Honorable Judge, is not
in point with the present case. Since We have resolved that P.D. 1866 can be
prosecuted independently of R.A. 1700, there can be no double jeopardy.
Double jeopardy can be invoked only if one offense is inseparable from
another and proceeds from the same act, in which case, they cannot be
subject to separate prosecutions. Art. III, Section 21 of the present
Constitution provides:
Sec. 21. No person shall be twice put in jeopardy of
punishment for the same offense. If an act is punished by a
law and an ordinance, conviction or acquittal under either
shall constitute a bar to another prosecution for the same
act.
Implementing the constitutional provision, Rule 117, Section 7 of the Rules of
Court provides as follows:
When the accused has been convicted or acquitted, or the
case against him has been dismissed or otherwise
terminated without his express consent, by a court of
competent jurisdiction, upon valid complaint or information or
other formal charge sufficient in form and substance to
sustain a conviction, and after the accused had pleaded to
the charge, the conviction or acquittal of the accused or the
dismissal of the case shall be a bar to another prosecution
for the offense charged, or for any attempt to commit the
same or frustration thereof, or for any offense which
necessarily includes or is necessarily included in the offense
charged in the former complaint or information.
Thus, according to a long line of cases, in order that a defendant may
successfully allege former jeopardy, it is necessary that he
had  previously been (1) convicted or (2) acquitted, or (3) in jeopardy of being
convicted of the offense charged, that is, that the former case against him for
the same offense has been dismissed or otherwise terminated without his
express consent, by a court of competent jurisdiction, upon a valid complaint
or information, and after the defendant has pleaded to the charge.
Premises considered, We find this petition meritorious and the resolution of
the trial court dated May 4, 1988 quashing the informations for violation of PD
1866 is hereby reversed and the informations reinstated. Let this case be
remanded to the lower court for further proceedings and trial. Cost de oficio.
SO ORDERED.
Narvasa, C.J., Melencio-Herrera, Paras, Feliciano, Padilla, Bidin, Griño-
Aquino, Medialdea, Davide, Jr. and Romero, JJ., concur.
Regalado, J., concurs in the result.
Bellosillo, J., took no part.
Separate Opinion
CRUZ, J., dissenting:
I dissent for the reasons stated in my dissent in Baylosis v. Chavez, G.R. No.
98136, Oct. 3, 1991.
Gutierrez, J., dissents.
Separate Opinions
CRUZ, J., dissenting:
I dissent for the reasons stated in my dissent in Baylosis v. Chavez, G.R. No. IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
98136, Oct. 3, 1991. NARCISO B. NAZARENO. ALFREDO NAZARENO, petitioner,
Gutierrez, J., dissents. vs.
THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION,
Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO
TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT. MAURO
Republic of the Philippines AROJADO, respondents.
SUPREME COURT
Efren H. Mercado for petitioners in G.R. No. 81567.
Manila
Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82.
Ramon S. Esguerra, Barbara Anne C. Migallos and Agripino G. Morga for
EN BANC petitioners in G.R. Nos. 84583-84.
Efren H. Mercado for petitioner in G.R. No. 83162.
G.R. No. 81567 July 9, 1990 Banzuela, Flores, Miralles, Raneses, Sy, Taquio & Association for petitioner
in G.R. No. 85727.
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF Josefina G. Campbell-Castillo for petitioners in G.R. No. 86332.
ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA. The Solicitor General for the respondents.
MANOLITA O. UMIL, and NICANOR P. DURAL, FELICITAS V.
SESE, petitioners,
vs. PER CURIAM:
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON
MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents.
The are eight (8) petitioners for habeas corpus filed before the Court, which
G.R. Nos. 84581-82 July 9, 1990
have been consolidated because of the similarity of issues raised, praying for
AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners,
the issuance of the writ of habeas corpus, ordering the respective
vs.
respondents to produce the bodies of the persons named therein and to
GEN. RENATO DE VILLA and GEN. RAMON MONTANO, respondents.
explain why they should not be set at liberty without further delay.
G.R. Nos. 84583-84 July 9, 1990
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY.
DOMINGO T. ANONUEVO and RAMON CASIPLE. DOMINGO T. In their respective Returns, the respondents uniformly assert that the
ANONUEVO and RAMON CASIPLE, petitioners, privilege of the writ of habeas corpus is not available to the petitioners as
vs. they have been legally arrested and are detained by virtue of valid
HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO informations filed in court against them.
CARINO, LT. COL. REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT.
ARNOLD DURIAN, and Commanding Officer, PC-INP Detention Center, The petitioners counter that their detention is unlawful as their arrests were
Camp Crame, Quezon City, respondents. made without warrant and, that no preliminary investigation was first
G.R. No. 83162 July 9, 1990 conducted, so that the informations filed against them are null and void.
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF
VICKY A. OCAYA AND DANNY RIVERA. VIRGILIO A. OCAYA, petitioner, The Court has carefully reviewed the contentions of the parties in their
vs. respective pleadings, and it finds that the persons detained have not been
BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, illegally arrested nor arbitrarily deprived of their constitutional right to liberty,
COL. NESTOR MARIANO, respondents. and that the circumstances attending these cases do not warrant their
G.R. No. 85727 July 9, 1990 release on habeas corpus.
IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF:
DEOGRACIAS ESPIRITU, petitioner, The arrest of a person without a warrant of arrest or previous complaint is
vs. recognized in law. The occasions or instances when such an arrest may be
BRIG. GEN. ALFREDO S. LIM, COL. RICARDO REYES, respondents. effected are clearly spelled out in Section 5, Rule 113 of the Rules of Court,
G.R. No. 86332 July 9, 1990 as amended, which provides:
 Sec. 5. Arrest without warrant; when lawful. — A peace
officer or a private person may, without a warrant, arrest a
person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit
an offense;
(b) When an offense has in fact just been committed, and he
has personal knowledge of facts indicating that the person to
be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his case
is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the
person arrested without a warrant shall be forthwith delivered
to the nearest police station or jail, and he shall be
proceeded against in accordance with Rule 112, Section 7.
An arrest without a warrant of arrest, under Section 5 paragraphs (a) and (b)
of Rule 113 of the Rules of Court, as amended, is justified when the person
arrested is caught in  flagranti delicto, viz., in the act of committing an offense;
or when an offense has just been committed and the person making the
arrest has personal knowledge of the facts indicating that the person arrested
has committed it. The rationale behind lawful arrests, without warrant, was
stated by this Court in the case of People vs. Kagui Malasugui 1 thus:
To hold that no criminal can, in any case, be arrested and
searched for the evidence and tokens of his crime without a
warrant, would be to leave society, to a large extent, at the
mercy of the shrewdest, the most expert, and the most
depraved of criminals, facilitating their escape in many
instances.
The record of the instant cases would show that the persons in whose behalf
these petitions for habeas corpus have been filed, had freshly committed or
were actually committing an offense, when apprehended, so that their arrests
without a warrant were clearly justified, and that they are, further, detained by
virtue of valid informations filed against them in court.
A brief narration of the facts and events surrounding each of the eight (8)
petitions is in order.
I
In G.R. No. 81567 (Umil vs. Ramos), the record shows that, on 1 February
1988, the Regional Intelligence Operations Unit of the Capital Command
(RIOU-CAPCOM) received confidential information about a member of the
NPA Sparrow Unit (liquidation squad) being treated for a gunshot wound at
the St. Agnes Hospital in Roosevelt Avenue, Quezon City. Upon verification,
it was found that the wounded person, who was listed in the hospital records
as Ronnie Javelon, is actually Rolando Dural, a member of the NPA
liquidation squad, responsible for the killing of two (2) CAPCOM soldiers the
day before, or on 31 January 1988, in Macanining Street, Bagong Barrio,
Caloocan City. In view of this verification, Rolando Dural was transferred to
the Regional Medical Services of the CAPCOM, for security reasons. While
confined thereat, or on 4 February 1988, Rolando Dural was positively
identified by eyewitnesses as the gunman who went on top of the hood of the
CAPCOM mobile patrol car, and fired at the two (2) CAPCOM soldiers
seated inside the car identified as T/Sgt. Carlos Pabon and CIC Renato
Manligot.
As a consequence of this positive identification, Rolando Dural was referred
to the Caloocan City Fiscal who conducted an inquest and thereafter filed
with the Regional Trial Court of Caloocan City an information charging
Rolando Dural alias Ronnie Javelon with the crime of "Double Murder with
Assault Upon Agents of Persons in Authority." The case was docketed
therein as Criminal Case No. C-30112 and no bail was recommended. On 15
February 1988, the information was amended to include, as defendant,
Bernardo Itucal, Jr. who, at the filing of the original information, was still
unidentified.
Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with
this Court on behalf of Roberto Umil, Rolando Dural, and Renato Villanueva.
The Court issued the writ of habeas corpus on 9 February 1988 and the
respondents filed a Return of the Writ on 12 February 1988. Thereafter, the
parties were heard on 15 February 1988.
On 26 February 1988, however, Roberto Umil and Renato Villanueva posted
bail before the Regional Trial Court of Pasay City where charges for violation
of the Anti-Subversion Act had been filed against them, and they were
accordingly released. The petition for habeas corpus, insofar as Umil and
Villanueva are concerned, is now moot and academic and is accordingly
dismissed, since the writ of habeas corpus does not lie in favor of an
accused in a criminal case who has been released on bail. 2
As to Rolando Dural, it clearly appears that he was not arrested while in the
act of shooting the two (2) CAPCOM soldiers aforementioned. Nor was he
arrested just after the commission of the said offense for his arrest came a
day after the said shooting incident. Seemingly, his arrest without warrant is
unjustified.
However, Rolando Dural was arrested for being a member of the New
Peoples Army (NPA), an outlawed subversive organization. Subversion being
a continuing offense, the arrest of Rolando Dural without warrant is justified
as it can be said that he was committing an offense when arrested. The
crimes of rebellion, subversion, conspiracy or proposal to commit such
crimes, and crimes or offenses committed in furtherance thereof or in
connection therewith constitute direct assaults against the State and are in
the nature of continuing crimes. As stated by the Court in an earlier case:
From the facts as above-narrated, the claim of the petitioners
that they were initially arrested illegally is, therefore, without
basis in law and in fact. The crimes of insurrection or
rebellion, subversion, conspiracy or proposal to commit such
crimes, and other crimes and offenses committed in the
furtherance, on the occasion thereof, or incident thereto, or
in connection therewith under Presidential Proclamation No.
2045, are all in the nature of continuing offenses which set
them apart from the common offenses, aside from their
essentially involving a massive conspiracy of nationwide
magnitude. Clearly then, the arrest of the herein detainees
was well within the bounds of the law and existing
jurisprudence in our jurisdiction.
2. The arrest of persons involved in the rebellion whether as
its fighting armed elements, or for committing non-violent
acts but in furtherance of the rebellion, is more an act of
capturing them in the course of an armed conflict, to quell
the rebellion, than for the purpose of immediately
prosecuting them in court for a statutory offense. The arrest,
therefore, need not follow the usual procedure in the
prosecution of offenses which requires the determination by
a judge of the existence of probable cause before the
issuance of a judicial warrant of arrest and the granting of
bail if the offense is bailable. Obviously, the absence of a
judicial warrant is no legal impediment to arresting or
capturing persons committing overt acts of violence against
government forces, or any other milder acts but equally in
pursuance of the rebellious movement. The arrest or capture
is thus impelled by the exigencies of the situation that
involves the very survival of society and its government and
duly constituted authorities. If killing and other acts of
violence against the rebels find justification in the exigencies
of armed hostilities which is of the essence of waging a
rebellion or insurrection, most assuredly so in case of
invasion, merely seizing their persons and detaining them
while any of these contingencies continues cannot be less
justified. . . . 3
The record, moreover, shows that the criminal case filed against Rolando
Dural and Bernardo Itucal, Jr. for "Double Murder, etc." was tried in the court
below and at the conclusion thereof, or on 17 August 1988, Rolando Dural
and Bernardo Itucal, Jr. were found guilty of the charge and sentenced
accordingly. Rolando Dural is now serving the sentence imposed upon him
by the trial court. Thus, the writ of habeas corpus is no longer available to
him. For, as held in the early case of U.S. vs. Wilson: 4
In this case, whatever may be said about the manner of his
arrest, the fact remains that the defendant was actually in
court in the custody of the law on March 29, when a
complaint sufficient in form and substance was read to him.
To this he pleaded not guilty. The trial followed, in which, and
in the judgment of guilty pronounced by the court, we find no
error. Whether, if there were irregularities in bringing him
personally before the court, he could have been released on
a writ of habeas corpus or now has a civil action for
damages against the person who arrested him we need not
inquire. It is enough to say that such irregularities are not
sufficient to set aside a valid judgment rendered upon a
sufficient complaint and after a trial free from error.
II
In G.R. Nos. 84581-82 (Roque vs. De Villa), the arrest of Amelia
Roque and Wilfredo Buenaobra, without warrant, is also justified. When
apprehended at the house of Renato Constantino in Marikina Heights,
Marikina, Metro Manila, Wilfredo Buenaobra admitted that he was an NPA
courier and he had with him letters to Renato Constantino and other
members of the rebel group. Amelia Roque, upon the other hand, was a
member of the National United Front Commission, in charge of finance,
and admitted ownership of subversive documents found in the house of her
sister in Caloocan City. She was also in possession of ammunition and a
fragmentation grenade for which she had no permit or authority to possess.
The record of these two (2) cases shows that on 27 June 1988, one Rogelio
Ramos y Ibanes, a member of the NPA, who had surrendered to the military
authorities, told military agents about the operations of the Communist Party
of the Philippines (CPP) and the New Peoples Army (NPA) in Metro Manila.
He identified some of his former comrades as "Ka Mong", a staff member of
the Communications and Transportation Bureau; "Ka Nelia", a staff member
in charge of finance; "Ka Miller", an NPA courier from Sorsogon and Lopez,
Quezon; "Ka Ted", and "Ka Totoy". He also pointed to a certain house
occupied by Renato Constantino located in the Villaluz Compound, Molave
St., Marikina Heights, Marikina, Metro Manila, which is used as a safehouse
of the National United Front Commission (NUFC) of the CPP-NPA.
In view of these revelations, the Constantino house was placed under military
surveillance and on 12 August 1988, pursuant to a search warrant issued by
Judge Eutropio Migrino of the Regional Trial Court of Pasig, a search of the
house was conducted at about 5:00 o'clock in the afternoon, by a combined
team of the Criminal Investigation Service, National Capital District (CIS-
NCD) and the Constabulary Security Group (CSG). In the course of the
search, the following articles were found and taken under proper receipt:
a) One (1) Colt M16A1 long rifle with defaced serial number;
b) One (1) Cal. .380 ACT/9mm Model PPK/8 SN: 260577 & 2605778;
c) Two (2) fragmentation hand grenades;
d) Fifty-six (56) live ammunition for Cal. 5.56 mm;
e) Five (5) live ammunition for Cal. .380;
f) One (1) ICOM VHF FM Radio Transciever SN: 14903
g) One (1) Regulated power supply 220V AC;
h) One (1) Antennae (adjustable);
i) One (1) Speaker with cord ALEXAR;
j) Voluminous Subversive documents.
When confronted, Renato Constatino could not produce any permit or
authority to possess the firearms, ammunition, radio and other
communications equipment. Hence, he was brought to the CIS Headquarters
for investigation. When questioned, he refused to give a written statement,
although he admitted that he was a staff member of the executive committee
of the NUFC and a ranking member of the International Department of the
Communist Party of the Philippines (CPP).
At about 8:00 o'clock in the evening of the same day (12 August 1988),
Wilfredo Buenaobra arrived at the house of Renato Constantino in the
Villaluz Compound. When accosted, he readily admitted to the military
agents that he is a regular member of the CPP/NPA and that he went to the
place to deliver letters to "Ka Mong", referring to Renato Constatino, and
other members of the rebel group. On further questioning, he also admitted
that he is known as "Ka Miller" and that he was from Barangay San Pedro,
Lopez, Quezon. Among the items taken from him were the following:
(1) Handwritten letter addressed to "Ka Bing & Co. from A &
Co." dated August 11, 1988;
(2) Handwritten letter addressed to "ROD from VIC (Schell
datre)" dated August 11, 1988;
(3) Handwritten letter addressed to "Suzie" from "Vic", dated
August 11, 1988.
Also found Buenaobra's possession was a piece of paper containing a
written but jumbled telephone number of Florida M. Roque, sister of Amelia
Roque alias "Ka Nelia", at 69 Geronimo St., Caloocan City. Acting on the
lead provided as to the whereabouts of Amelia Roque, the military agents
went to the given address the next day (13 August 1988). They arrived at the
place at about 11:00 o'clock in the morning. After identifying themselves as
military agents and after seeking permission to search the place, which was
granted, the military agents conducted a search in the presence of the
occupants of the house and the barangay captain of the place, one Jesus D.
Olba.
The military agents found the place to be another safehouse of the
NUFC/CPP. They found ledgers, journals, vouchers, bank deposit books,
folders, computer diskettes, and subversive documents as well as live
ammunition for a .38 SPL Winchester, 11 rounds of live ammunition for a cal.
.45, 19 rounds of live ammunition for an M16 Rifle, and a fragmentation
grenade. As a result, Amelia Roque and the other occupants of the house
were brought to the PC-CIS Headquarters at Camp Crame, Quezon City, for
investigation. Amelia Roque admitted to the investigators that the voluminous
documents belonged to her and that the other occupants of the house had no
knowledge of them. As a result, the said other occupants of the house were
released from custody.
On 15 August 1988, Amelia Roque was brought to the Caloocan City Fiscal
for inquest after which an information charging her with violation of PD 1866
was filed with the Regional Trial Court of Caloocan City. The case is
docketed therein as Criminal Case No. C-1196. Another information for
violation of the Anti-Subversion Act was filed against Amelia Roque before
the Metropolitan Trial Court of Caloocan City, which is docketed therein as
Criminal Case No. C-150458.
An information for violation of the Anti-Subversion Act was filed
against Wilfredo Buenaobra before the Metropolitan Trial Court of Marikina,
Metro Manila. The case is docketed therein as Criminal Case No. 23715. Bail
was set at P4,000.00.
On 24 August 1988, a petition for habeas corpus was filed before this Court
on behalf of Amelia Roque and Wilfredo Buenaobra. At the hearing of the
case, however, Wilfredo Buenaobra manifested his desire to stay in the PC-
INP Stockade at Camp Crame, Quezon City. According, the petition
for habeas corpus filed on his behalf is now moot and academic. Only the
petition of Amelia Roque remains for resolution.
The contention of respondents that petitioners Roque and Buenaobra are
officers and/or members of the National United Front Commission (NUFC) of
the CPP was not controverted or traversed by said petitioners. The
contention must be deemed admitted. 5 As officers and/or members of the
NUFC-CPP, their arrest, without warrant, was justified for the same reasons
earlier stated vis-a-vis Rolando Dural. The arrest without warrant of Roque
was additionally justified as she was, at the time of apprehension, in
possession of ammunitions without license to possess them.
III
In G.R. Nos. 84583-84 (Anonuevo vs. Ramos), the arrest of Domingo
Anonuevo and Ramon Casiple, without warrant, is also justified under the
rules. Both are admittedly members of the standing committee of the NUFC
and, when apprehended in the house of Renato Constatino, they had a bag
containing subversive materials, and both carried firearms and ammunition
for which they had no license to possess or carry.
The record of these two (2) cases shows that at about 7:30 o'clock in the
evening of 13 August 1988, Domingo T. Anonuevo and Ramon Casiple
arrived at the house of Renato Constatino at Marikina Heights, Marikina,
which was still under surveillance by military agents. The military agents
noticed bulging objects on their waist lines. When frisked, the agents found
them to be loaded guns. Anonuevo and Casiple were asked to show their
permit or license to possess or carry firearms and ammunition, but they could
not produce any. Hence, they were brought to PC Headquarters for
investigation. Found in their possession were the following articles:
a) Voluminous subversive documents
b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412 with one
(1) magazine for Cal. 7.65 containing ten (10) live
ammunition of same caliber;
c) One (1) Cal. 7.65 Pietro Barreta SN; A18868 last digit
tampered with one (1) magazine containing five (5) live
ammunition of same caliber.
At the PC Stockade, Domingo Anonuevo was identified as "Ka Ted", and
Ramon Casiple as "Ka Totoy" of the CPP, by their comrades who had
previously surrendered to the military.
On 15 August 1988, the record of the investigation and other documentary
evidence were forwarded to the Provincial Fiscal at Pasig, Metro Manila, who
conducted an inquest, after which Domingo Anonuevo and Ramon Casiple
were charged with violation of Presidential Decree No. 1866 before the
Regional Trial Court of Pasig, Metro Manila. The cases are docketed therein
as Criminal Cases Nos. 74386 ad 74387, respectively. No bail was
recommended.
On 24 August 1988, a petition for habeas corpus was filed with this Court on
behalf of Domingo Anonuevo and Ramon Casiple, alleging that the said
Anonuevo and Casiple were unlawfully arrested without a warrant and that
the informations filed against them are null and void for having been filed
without prior hearing and preliminary investigation. On 30 August 1988, the
Court issued the writ of habeas corpus, and after the respondents had filed a
Return of the Writ, the parties were heard.
The petitioners' (Anonuevo and Casiple) claim that they were unlawfully
arrested because there was no previous warrant of arrest, is without merit
The record shows that Domingo Anonuevo and Ramon Casiple were
carrying unlicensed firearms and ammunition in their person when they were
apprehended.
There is also no merit in the contention that the informations filed against
them are null and void for want of a preliminary investigation. The filing of an
information, without a preliminary investigation having been first conducted,
is sanctioned by the Rules. Sec. 7, Rule 112 of the Rules of Court, as
amended, reads:
 Sec. 7. When accused lawfully arrested without a warrant. —
When a person is lawfully arrested without a warrant for an
offense cognizable by the Regional Trial Court the complaint
or information may be filed by the offended party, peace
officer or fiscal without a preliminary investigation having
been first conducted, on the basis of the affidavit of the
offended party or arresting officer or person.
However, before the filing of such complaint or information,
the person arrested may ask for a preliminary investigation
by a proper officer in accordance with this Rule, but he must
sign a waiver of the provisions of Article 125 of the Revised
Penal Code, as amended, with the assistance of a lawyer
and in case of non-availability of a lawyer, a responsible
person of his choice. Notwithstanding such waiver, he may
apply for bail as provided in the corresponding rule and the
investigation must be terminated within fifteen (15) days from
its inception.
If the case has been filed in court without a preliminary
investigation having been first conducted, the accused may
within five (5) days from the time he learns of the filing of the
information, ask for a preliminary investigation with the same
right to adduced evidence in his favor in the manner
prescribed in this Rule.
The petitioners Domingo Anonuevo and Ramon Casiple, however, refused to
sign a waiver of the provisions of Article 125 of the Revised Penal Code, as
amended. In the informations filed against them, the prosecutor made
identical certifications, as follows:
This is to certify that the accused has been charged in
accordance with Sec. 7, Rule 112 of the 1985 Rules on
Criminal Procedure, that no preliminary investigation was
conducted because the accused has not made and signed a
waiver of the provisions of Art. 125 of the Revised Penal
Code, as amended; that based on the evidence presented,
there is reasonable ground to believe that the crime has
been committed, and that the accused is probably guilty
thereof.
Nor did petitioners ask for a preliminary investigation after the informations
had been filed against them in court. Petitioners cannot now claim that they
have been deprived of their constitutional right to due process.
IV
In G.R. No. 83162 (Ocaya vs. Aguirre), the arrest without warrant, of Vicky
Ocaya is justified under the Rules, since she had with her unlicensed
ammunition when she was arrested. The record of this case shows that on
12 May 1988, agents of the PC Intelligence and Investigation of the Rizal PC-
INP Command, armed with a search warrant issued by Judge Eutropio
Migrino of the Regional Trial Court of Pasig, Metro Manila, conducted a
search of a house located at Block 19, Phase II, Marikina Green Heights,
Marikina, Metro Manila, believed to be occupied by Benito Tiamson, head of
the CPP-NPA. In the course of the search, Vicky Ocaya arrived in a car
driven by Danny Rivera. Subversive documents and several rounds of
ammunition for a .45 cal. pistol were found in the car of Vicky Ocaya. As a
result, Vicky Ocaya and Danny Rivera were brought to the PC Headquarters
for investigation. When Vicky Ocaya could not produce any permit or
authorization to possess the ammunition, an information charging her with
violation of PD 1866 was filed with the Regional Trial Court of Pasig, Metro
Manila. The case is docketed therein as Criminal Case No. 73447. Danny
Rivera, on the other hand, was released from custody.
On 17 May 1988, a petition for habeas corpus was filed, with this Court on
behalf of Vicky Ocaya and Danny Rivera. It was alleged therein that Vicky
Ocaya was illegally arrested and detained, and denied the right to a
preliminary investigation.
It would appear, however, that Vicky Ocaya was arrested in flagranti
delicto so that her arrest without a warrant is justified. No preliminary
investigation was conducted because she was arrested without a warrant
and she refused to waive the provisions of Article 125 of the Revised Penal
Code, pursuant to Sec. 7, Rule 112 of the Rule of Court, as amended.
V
The petitioners Vicky Ocaya, Domingo Anonuevo, Ramon Casiple, and
Amelia Roque claim that the firearms, ammunition and subversive
documents alleged to have been found in their possession when they were
arrested, did not belong to them, but were "planted" by the military agents to
justify their illegal arrest.
The petitioners, however, have not introduced any evidence to support their
aforesaid claim. On the other hand, no evil motive or ill-will on the part of the
arresting officers that would cause the said arresting officers in these cases
to accuse the petitioners falsely, has been shown. Besides, the arresting
officers in these cases do not appear to be seekers of glory and bounty
hunters for, as counsel for the petitioners Anonuevo and Casiple say, "there
is absolutely nothing in the evidence submitted during the inquest that
petitioners are on the 'AFP Order of Battle with a reward of P150,000.00
each on their heads.'" 6 On the other hand, as pointed out by the Solicitor
General, the arrest of the petitioners is not a product of a witch hunt or a
fishing expedition, but the result of an in-depth surveillance of NPA
safehouses pointed to by no less than former comrades of the petitioners in
the rebel movement.
The Solicitor General, in his Consolidated Memorandum, aptly observes:
. . . . To reiterate, the focal point in the case of petitioners
Roque, Buenaobra, Anonuevo and Casiple, was the lawful
search and seizure conducted by the military at the
residence of Renato Constantino at Villaluz Compound,
Molave St., Marikina Heights, Marikina, Metro Manila. The
raid at Constantino's residence, was not a witch hunting or
fishing expedition on the part of the military. It was a result of
an in-depth military surveillance coupled with the leads
provided by former members of the underground subversive
organizations. That raid produced positive results. to date,
nobody has disputed the fact that the residence of
Constantino when raided yielded communication equipment,
firearms and ammunitions, as well as subversive documents.
The military agents working on the information provided by
Constantino that other members of his group were coming to
his place, reasonably conducted a "stake-out" operation
whereby some members of the raiding team were left behind
the place. True enough, barely two hours after the raid and
Constantino's arrest, petitioner Buenaobra arrived at
Constantino's residence. He acted suspiciously and when
frisked and searched by the military authorities, found in his
person were letters. They are no ordinary letters, as even a
cursory reading would show. Not only that, Buenaobra
admitted that he is a NPA courier and was there to deliver
the letters to Constantino.
Subsequently, less than twenty four hours after the arrest of
Constantino and Buenaobra, petitioners Anonuevo and
Casiple arrived at Constantino's place. Would it be
unreasonable for the military agents to believe that
petitioners Anonuevo and Casiple are among those
expected to visit Constantino's residence considering that
Constatino's information was true, in that Buenaobra did
come to that place? Was it unreasonable under the
circumstances, on the part of the military agents, not to frisk
and search anyone who should visit the residence of
Constantino, such as petitioners Anonuevo and Casiple?
Must this Honorable Court yield to Anonuevo and Casiple's
flimsy and bare assertion that they went to visit Constantino,
who was to leave for Saudi Arabia on the day they were
arrested thereat?
As to petitioner Roque, was it unreasonable for the military
authorities to effect her arrest without warrant considering
that it was Buenaobra who provided the leads on her
identity? It cannot be denied that Buenaobra had connection
with Roque. Because the former has the phone number of
the latter. Why the necessity of jumbling Roque's telephone
number as written on a piece of paper taken from
Buenaobra's possession? Petitioners Roque and Buenaobra
have not offered any plausible reason so far.
In all the above incidents, respondents maintain that they
acted reasonably, under the time, place and circumstances
of the events in question, especially considering that at the
time of petitioner's arrest, incriminatory evidence, i.e,
firearms, ammunitions and/or subversive documents were
found in their possession.
Petitioners, when arrested, were neither taking their snacks
nor innocently visiting a camp, but were arrested in such
time, place and circumstances, from which one can
reasonably conclude tat they were up to a sinister plot,
involving utmost secrecy and comprehensive conspiracy.
IV
In. G.R. No. 85727 (Espiritu vs. Lim), the release on habeas corpus of the
petitioner Deogracias Espiritu, who is detained by virtue of an Information for
Violation of Article 142 of the Revised Penal Code (Inciting to Sedition) filed
with the Regional Trial Court of Manila, is similarly not warranted.
The record of the case shows that the said petitioner is the General
Secretary of the Pinagkaisahang Samahan ng Tsuper at Operators
Nationwide (PISTON), an association of drivers and operators of public
service vehicles in the Philippines, organized for their mutual aid and
protection.
Petitioner claims that at about 5:00 o'clock in the morning of 23 November
1988, while he was sleeping in his home located at 363 Valencia St., Sta.
Mesa, Manila, he was awakened by his sister Maria Paz Lalic who told him
that a group of persons wanted to hire his jeepney. When he went down to
talk to them, he was immediately put under arrest. When he asked for the
warrant of arrest, the men, headed by Col. Ricardo Reyes, bodily lifted him
and placed him in their owner-type jeepney. He demanded that his sister,
Maria Paz Lalic, be allowed to accompany him, but the men did not accede
to his request and hurriedly sped away.
He was brought to Police Station No. 8 of the Western Police District at
Blumentritt, Manila where he was interrogated and detained. Then, at about
9:00 o'clock of the same morning, he was brought before the respondent Lim
and, there and then, the said respondent ordered his arrest and detention.
He was thereafter brought to the General Assignment Section, Investigation
Division of the Western Police District under Police Capt. Cresenciano A.
Cabasal where he was detained, restrained and deprived of his liberty. 7
The respondents claim however, that the detention of the petitioner is
justified in view of the Information filed against him before the Regional Trial
Court of Manila, docketed therein as Criminal Case No. 88-683-85, charging
him with violation of Art. 142 of the Revised Penal Code (Inciting to Sedition).
The respondents also claim that the petitioner was lawfully arrested without a
judicial warrant of arrest since petitioner when arrested had in fact just
committed an offense in that in the afternoon of 22 November 1988, during a
press conference at the National Press Club.
Deogracias Espiritu through tri-media was heard urging all
drivers and operators to go on nationwide strike on
November 23, 1988, to force the government to give into
their demands to lower the prices of spare parts,
commodities, water and the immediate release from
detention of the president of the PISTON (Pinag-isang
Samahan ng Tsuper Operators Nationwide). Further, we
heard Deogracias Espiritu taking the place of PISTON
president Medardo Roda and also announced the formation
of the Alliance Drivers Association to go on nationwide strike
on November 23, 1988. 8
Policemen waited for petitioner outside the National Pres Club in order to
investigate him, but he gave the lawmen the slip. 9 He was next seen at
about 5:00 o'clock that afternoon at a gathering of drivers and symphatizers
at the corner of Magsaysay Blvd. and Valencia Street, Sta. Mesa, Manila
where he was heard to say:
Bukas tuloy ang welga natin, sumagot na ang Cebu at Bicol
na kasali sila, at hindi tayo titigil hanggang hindi binibigay ng
gobyerno ni Cory ang gusto nating pagbaba ng halaga ng
spare parts, bilihin at and pagpapalaya sa ating pinuno na si
Ka Roda hanggang sa magkagulo na. 10 (emphasis supplied)
The police finally caught up with the petitioner on 23 November 1988. He
was invited for questioning and brought to police headquarters after which an
Information for violation of Art. 142 of the Revised Penal Code was filed
against him before the Regional Trial Court of Manila. 11
Since the arrest of the petitioner without a warrant was in accordance with
the provisions of Rule 113, Sec. 5(b) of the Rules of Court and that the
petitioner is detained by virtue of a valid information filed with the competent
court, he may not be released on habeas corpus. He may, however be
released upon posting bail as recommended. However, we find the amount
of the recommended bail (P60,000.00) excessive and we reduce it to
P10,000.00 only.
VII
In G.R. No. 86332 (Nazareno vs. Station Commander), we also find no merit
in the submission of Narciso Nazareno that he was illegally arrested and is
unlawfully detained. The record of this case shows that at about 8:30 o'clock
in the morning of 14 December 1988, one Romulo Bunye II was killed by a
group of men near the corner of T. Molina and Mendiola Streets in Alabang,
Muntinglupa, Metro Manila. One of the suspects in the killing was Ramil
Regal who was arrested by the police on 28 December 1988. Upon
questioning, Regal pointed to Narciso Nazareno as on of his companions in
the killing of the said Romulo Bunye II. In view thereof, the police officers,
without warrant, picked up Narciso Nazareno and brought him to the police
headquarters for questioning. Obviously, the evidence of petitioner's guilt is
strong because on 3 January 1989, an information charging Narciso
Nazareno, Ramil Regala, and two (2) others, with the killing of Romulo Bunye
II was filed with the Regional Trial Court of Makati, Metro Manila. The case is
docketed therein as Criminal Case No. 731.
On 7 January 1989, Narciso Nazareno filed a motion to post bail, but the
motion was denied by the trial court in an order dated 10 January 1989, even
as the motion to post bail, earlier filed by his co-accused, Manuel Laureaga,
was granted by the same trial court.
On 13 January 1989, a petition for habeas corpus was filed with this Court on
behalf of Narciso Nazareno and on 13 January 1989, the Court issued the
writ of habeas corpus, returnable to the Presiding Judge of the Regional Trial
Court of Biñan, Laguna, Branch 24, ordering said court to hear the case on
30 January 1989 and thereafter resolve the petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge
of the Regional Trial Court of Biñan, Laguna issued a resolution denying the
petition for habeas corpus, it appearing that the said Narciso Nazareno is in
the custody of the respondents by reason of an information filed against him
with the Regional Trial Court of Makati, Metro Manila which had taken
cognizance of said case and had, in fact, denied the motion for bail filed by
said Narciso Nazareno (presumably because of the strength of the evidence
against him).
The findings of the Presiding Judge of the Regional Trial Court of Biñan,
Laguna are based upon the facts and the law. Consequently, we will not
disturb the same. Evidently, the arrest of Nazareno was effected by the
police without warrant pursuant to Sec. 5(b), Rule 113, Rules of Court after
he was positively implicated by his co-accused Ramil Regala in the killing of
Romulo Bunye
II; and after investigation by the police authorities. As held in People
vs. Ancheta: 12
The obligation of an agent of authority to make an arrest by
reason of a crime, does not presuppose as a necessary
requisite for the fulfillment thereof, the indubitable existence
of a crime. For the detention to be perfectly legal, it is
sufficient that the agent or person in authority making the
arrest has reasonably sufficient grounds to believe the
existence of an act having the characteristics of a crime and
that the same grounds exist to believe that the person
sought to be detained participated therein.
VIII
It is to be noted that, in all the petitions here considered, criminal charges
have been filed in the proper courts against the petitioners. The rule is, that if
a person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court judge, and that the court or judge had
jurisdiction to issue the process or make the order, of if such person is
charged before any court, the writ of habeas corpus will not be allowed.
Section 4, Rule 102, Rules of Court, as amended is quite explicit in providing
that:
Sec. 4. When writ is allowed or discharge authorized. — If it
appears that the person alleged to be restrained of his liberty
is in the custody of an officer under process issued by a
court or judge or by virtue of a judgment or order of a court of
record, and that the court or judge had jurisdiction to issue
the process, render the judgment, or make the order, the writ
shall not be allowed; or if the jurisdiction appears after the
writ is allowed, the person shall not be discharged by reason
of any informality or defect in the process, judgment, or
order. Nor shall anything in this rule be held to authorize the
discharge of a person charged with a convicted of an
offense in the Philippines or of a person suffering
imprisonment under lawful judgment. (emphasis supplied)
At this point, we refer to petitioner's plea for the Court of re-examine and,
thereafter, abandon its pronouncement in Ilagan vs. Enrile, 13 that a writ
of habeas corpus is no longer available after an information is filed against
the person detained and a warrant of arrest or an order of commitment, is
issued by the court where said information has been filed. 14 The petitioners
claim that the said ruling, which was handed down during the past dictatorial
regime to enforce and strengthen said regime, has no place under the
present democratic dispensation and collides with the basic, fundamental,
and constitutional rights of the people. Petitioners point out that the said
doctrine makes possible the arrest and detention of innocent persons despite
lack of evidence against them, and, most often, it is only after a petition
for habeas corpus is filed before the court that the military authorities file the
criminal information in the courts of law to be able to hide behind the
protective mantle of the said doctrine. This, petitioners assert, stands as an
obstacle to the freedom and liberty of the people and permits lawless and
arbitrary State action.
We find, however, no compelling reason to abandon the said doctrine. It is
based upon express provision of the Rules of Court and the exigencies
served by the law. The fears expressed by the petitioners are not really
unremediable. As the Court sees it, re-examination or reappraisal, with a
view to its abandonment, of the Ilagan case doctrine is not the answer. The
answer and the better practice would be, not to limit the function of
the habeas corpus to a mere inquiry as to whether or not the court which
issued the process, judgment or order of commitment or before whom the
detained person is charged, had jurisdiction or not to issue the process,
judgment or order or to take cognizance of the case, but rather, as the Court
itself states in Morales, Jr. vs. Enrile, 15 "in all petitions for habeas corpus the
court must inquire into every phase and aspect of petitioner's detention-from
the moment petition was taken into custody up to the moment the court
passes upon the merits of the petition;" and "only after such a scrutiny can
the court satisfy itself that the due process clause of our Constitution has in
fact been satisfied." This is exactly what the Court has done in the petitions
at bar. This is what should henceforth be done in all future cases of habeas
corpus. In Short, all cases involving deprivation of individual liberty should be
promptly brought to the courts for their immediate scrutiny and disposition.
WHEREFORE, the petitions are hereby DISMISSED, except that in
G.R. No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional
liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No costs.
SO ORDERED.
Fernan C.J., Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Paras,
Gancayco, Padilla, Bidin, Griño-Aquino, Medialdea and Regalado, JJ.,
concur.
 
 
Separate Opinions
 
CRUZ, J., dissenting and concurring:
I dissent insofar as the ponencia affirms the ruling in Garcia-Padilla v. Enrile
that subversion is a continuing offense, to justify the arrest without warrant of
any person at any time as long as the authorities say he has been placed
under surveillance on suspicion of the offense. That is a dangerous doctrine.
A person may be arrested when he is doing the most innocent acts, as when
he is only washing his hands, or taking his supper, or even when he is
sleeping, on the ground that he is committing the "continuing" offense of
subversion. Libertarians were appalled when that doctrine was imposed
during the Marcos regime. I am alarmed that even now this new Court is
willing to sustain it. I strongly urge my colleagues to discard it altogether as
one of the disgraceful vestiges of the past dictatorship and uphold the rule
guaranteeing the right of the people against unreasonable searches and
seizures. We can do no less if we are really to reject the past oppression and
commit ourselves to the true freedom. Even if it be argued that the military
should be given every support in our fight against subversion, I maintain that
that fight must be waged honorably, in accordance with the Bill of Rights. I do
not believe that in fighting the enemy we must adopt the ways of the enemy,
which are precisely what we are fighting against. I submit that our more
important motivation should be what are we fighting for.
Except for this reservation and appeal, I concur with the decision.
FELICIANO, J., concurring:
I concur in the result reached in each of the eight (8) consolidated Petitions
for Habeas Corpus. At the same time, I have some reservations concerning
certain statements made by the Court in G.R. No. 81567 (Umil, et al. v.
Ramos) (Part I of the Decision) and in G.R. No. 85727 (Espiritu v. Lim) (Part
VI of the Decision).
In G.R. No. 81567 (Umil, et al. v. Ramos), the per curiam opinion states
categorically that: "the crimes of rebellion, subversion, conspiracy or proposal
to commit such crimes, and crimes or offenses committed in furtherance
thereof or in connection therewith constitute direct assaults against the State
and are in the nature of continuing crimes." The majority here relies
upon Garcia-Padilla v. Enrile (121 SCRA 472 [1983]). The majority there
made the same equally broad statement but without any visible effort to
examine the basis, scope and meaning of such a sweeping
statement. Garcia-Padilla did not even identify the specific offenses which it
regarded as "in the nature of continuing offenses which set them apart from
the common offenses" (121 SCRA at 489). It appears to me that in G.R. No.
85727 (Espiritu v. Lim) (Part VI of the Decision), the per curiam opinion has
in effect included the offense of "inciting to sedition" penalized under Article
142 of the Revised Penal Code as a "continuing offense" under the
capacious blanket of the majority opinion in Garcia-Padilla, at least for
purposes of determining the legality of the arrest without a warrant of
petitioner Deogracias Espiritu.
I would respectfully recall to my learned colleagues in the Court that "inciting
to sedition" is defined in Article 142 of the Revised Penal Code in terms of
speech 1 and that consequently it is important constantly do distinguish
between speech which is protected by the constitutional guaranty of freedom
of speech and of the press and speech which may constitutionally be
regarded as violative of Article 142 of the Revised Penal Code. Precisely
because speech which the police authorities might regard as seditious or as
criminal inciting to sedition may well turn out to be only an exercise of a
constitutionally guaranteed freedom, I would submit that we must apply the
concept of "continuing offense" narrowly for purposes of application of
Section 5(b), Rule 113 of the Revised Rules of Court.
In my view, the very broad statement made about "continuing crimes" in G.R.
No. 81567 (Umil, et al v. Ramos) constitutes dictum, considering that
Rolando Dural and Bernardo Itucal, Jr. had already been tried in the court
below for "double murder, etc." and found guilty of the offense charged,
sentenced accordingly, and at least in the case of Rolando Dural, service of
the sentence imposed upon him by the trial court had already begun.
Similarly, in G.R. No. 85727 (Espiritu v. Lim) the statement that the arrest of
petitioner Espiritu without a warrant was in accordance with the provisions of
Section 5(b), Rule 113 of the Revised Rules of Court does not appear strictly
necessary, considering that the petitioner had already been charged in a
valid information filed with the competent court, which court had presumably
issued an order for his commitment, and considering further that he is entitled
to bail.
There is thus no obstacle, to my mind, to a careful examination of the
doctrine of "continuing crimes" as applied to such offenses as subversion and
inciting to sedition and possibly other offenses, in some future case where
that issue is raised squarely and is unavoidable.
Cortes, J., concurs.
 
SARMIENTO, J.,  dissenting:
I beg to differ from my brethren. I submit that habeas corpus lies in all eight
cases.
G.R. No. 81567
The majority says that Rolando Dural's arrest without a warrant is lawful
under the Rules of Court, which reads:
Sec. 5. Arrest without warrant; when lawful. — A peace
officer or a private person may, without a warrant, arrest a
person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit
an offense;
(b) When an offense has in fact just been committed, and he
has personal knowledge of facts indicating that the person to
be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his case
is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station or
jail, and he shall be proceeded against in accordance with Rule 112, Section
7. 1
"Rolando Dural," so states the majority, "was arrested for being a member of
the New People's Army (NPA), an outlawed subversive organization," 2 and
that "[s]ubversion being a continuing offense, the arrest of Rolando Dural
without a warrant is justified as it can be said that he was committing an
offense when arrested." 3
As I said, I beg to differ.
First, Rolando Dural was charged with "Double Murder with Assault upon
Agents of Authority." 4 If he had been guilty of subversion — the offense for
which he was supposedly arrested via a warrantless arrest — subversion
was the logical crime with which he should have been charged.
The authorities could not have rightly arrested him for subversion on account
of the slay of the two CAPCOM soldiers, a possible basis for violation of the
Anti-Subversion Act, because as the majority points out, "he was not arrested
while in the act of shooting [them] . . . [n]or was he arrested just after the
commission of the said offense for his arrest came a day after the said
shooting incident." 5
Second, I do not believe that a warrantless (or citizen's) arrest is possible in
case of subversion — in the absence of any overt act that would justify the
authorities to act. "Subversion," as the term is known in law, means
"knowingly, wilfully and by overt acts affiliat[ing] [oneself] with, becom[ing] or
remain[ing] a member of the Communist Party of the Philippines and/or its
successor or of any subversion association as defined in sections two and
three hereof. . . . " 6 Logically, the military could not have known that Dural, at
the time he was taken, was a member of the New People's Army because he
was not performing any over act that he was truly, a rebel. Indeed, it had to
take a "verification"6 before he could be identified as allegedly a member of
the underground army. Under these circumstances, I am hard put to say that
he was committing subversion when he was arrested, assuming that he was
guilty of subversion, for purposes of a warrantless arrest.
 "Overt act" is made up of "[e]very act, movement, deed and
word of the [accused]," 7 indicating intent to accomplish a
criminal objective. Dural, at the time he was arrested, was
lying in a hospital bed. This is not the overt act contemplated
by law.
Under the Rule above-quoted, the person must have either been
apprehended in flagranti (first paragraph) or after the act, provided that the
peace officer has "personal knowledge" that he, the suspect, is guilty.
(second paragraph.) As I stated, Dural was not caught in the act. Moreover,
what the Regional Intelligence Operations Unit of the Capital Command
(RIOU-CAPCOM) had in its hands was a mere "confidential information." I do
not think that this is the personal knowledge referred to by the second
paragraph. 8 Plainly and simply, it is hearsay.
The rule, furthermore, on warrantless arrest is an exceptional one. By its
language, it may be exercised only in the most urgent cases and when the
guilt of an offender is plain and evident. What I think we have here is purely
and simply, the military taking the law in its hands.
By stamping validity to Rolando Dural's warrantless arrest, I am afraid that
the majority has set a very dangerous precedent. With all due respect, my
brethren has accorded the military a blanket authority to pick up any Juan,
Pedro, and Maria without a warrant for the simple reason that subversion is
supposed to be a continuing offense.
That Rolando Dural was arrested for being a member of the New People's
Army" 9 is furthermore to me, a hasty statement. It has yet to be established
that Dural is indeed a member of the Communist Party's military arm. And
unless proven guilty, he is presumed, and must be presumed most of all by
this Court, to be innocent.
The majority also says that habeas corpus is moot and academic because
Dural has been convicted and is serving sentence. I likewise take exception.
It has been held that: "The writ may be granted upon a judgment already
final." 10
The writ of liberty is a high prerogative writ. 11 Vindication of due process is its
historic office. 12
G.R. Nos. 84581-82
In the case of Wilfredo Buenaobra, the majority avers that he had
"manifested his desire to stay in the PC-INP stockade," 13 for which habeas
corpus has supposedly become moot and academic. I am not convinced that
that is reason enough to dismiss habeas corpus as moot and academic. It is
the duty of this Court, in my opinion, to make sure that Buenaobra has made
his choice freely and voluntarily. Personally, I find it indeed strange why he
should prefer to stay in jail than go scot-free.
There is further no doubt that Buenaobra's petition is one impressed with a
public interest. In one case 14 we denied a motion to withdraw a petition
for habeas corpus in view of its far-reaching importance to the motion, I do
not see how we should act differently, perhaps even insouciantly, here,
especially since it involves persons who think and believe differently from the
rest of us.
Both Buenaobra and Amelia Roque supposedly admitted that they were
ranking officers of the Communist Party of the Philippines. According to the
majority, Buenaobra and Roque are bound by their admissions. 15
That both parties had admitted to be members of the Communist Party of the
Philippines (the National United Front Commission) is a naked contention of
the military. The fact that it has not been controverted, in my view, does not
justify the couple's arrest without warrant. Worse, by relying on the bare word
of the military, this very Court has, to all intents and purposes, condemned
the duo for a crime (subversion and/or illegal possession of firearms) the
bone of contention, precisely, below.
G.R. Nos. 84583-84
I also find the warrantless arrests of Domingo Añonuevo and Ramon Casiple
to be contrary to law. That they are "admittedly members of the standing
committee of the NUFC" 16 and that "subversive materials" 17 and unlicensed
firearms were found in their possession, are, like Buenaobra's and Roque's
cases, barren claims of the military. I also fear that by the majority's strong
language (that Añonuevo and Casiple are admitted NUCF officers) the
majority has pronounced the petitioners guilty, when the lower courts have
yet to sit in judgment. I think we should be the last to preempt the decision of
the trial courts. We would have set to naught the presumption of innocence
accused persons enjoy.
G.R. No. 83162
With respect to the case of Vicky Ocaya, I am afraid that I am inclined
towards the same conclusion. There was basis — at the outset — to say that
Ocaya was probably guilty of illegal possession of firearms. As I have
observed, a warrantless arrest must be predicated upon the existence of a
crime being actually committed or having been committed. What I find here,
rather, is nothing less than a successful fishing expedition conducted by the
military upon an unwary citizen. I am quite distressed to note that this is still
possible under a supposed democracy.
G.R. No. 85727
Deogracias Espiritu was fast asleep in his house when he was placed under
arrest. For the life of me, I can not figure out how one can be picked upon in
one's own home and held moments later without a warrant of arrest.
Espiritu was allegedly guilty of inciting to sedition as a result of a speech
delivered in a press conference at the National Press Club on November 21,
1988. He was, however, arrested the day after, November 22, 1988. Under
these circumstances, it eludes me how an arrest without a warrant could be
justified, either under paragraph (a) or paragraph (b) of the Rule on
warrantless arrests.
The majority avers that since an information had been filed with the court,
Espiritu's detention, is allegedly justifiable. The question is whether or not an
information is an authority to hold a person in custody. Under the Rules, an
information means "an accusation in writing charging a person with an
offense subscribed by the fiscal and filed with the court." 18 It is not, however,
an order to keep one under detention.
G.R. No. 86332
The offense for which Narciso Nazareno is being held — the fatal shooting of
Romulo Bunye II — was committed on December 14, 1988. It was, however,
only on December 28, 1988 that the police collared a suspect, Ramil Regala,
who subsequently pointed to Nazareno as his accomplice. It also escapes
me how Nazareno, under these circumstances, could have been validly put
under arrest without a warrant or the existence of the circumstance described
under either paragraph (a) or (b) of the Rule above-quoted: The crime had
long been committed prior to the arrest.
G.R. Nos. 81567; 84581-82; 84583-84; 83162;
85727 & 86332; Postscripts
The majority has disposed of these cases on the bedrock of what I view as
doctrines that have lost their luster:
1. The teaching of Garcia-Padilla v. Enrile, 19 which held that subversion is a
continuing offense;
2. The ruling in Ilagan v. Enrile. 20
I also find, for reasons to be set forth hereinafter, a glossing over of the
fundamental rights of the petitioners under the Constitution in the authorities'
handling of the petitioners' cases.
I hold that Garcia-Padilla is no longer good law under the present
Constitution. Two reasons persuade me. First, it is repugnant to due process
of law. ("The arrest, therefore, need not follow the usual procedure in the
prosecution of offenses which require the determination by a judge of the
existence of probable cause before the issuance of a judicial warrant of
arrest and the granting of bail if the offense is bailable." 21 Under the 1987
Constitution, not even "[a] state of martial law suspend[s] the operation of
[the Charter]. . ." 22 Second, it leaves the liberty of citizens to the whim of one
man ("On these occasions [the existence of a state of emergency], the
President takes absolute command, for the very life of the Nation and its
government, which, incidentally, includes the courts, is in grave peril. In so
doing, the President is answerable only to his conscience, the people and to
God. For their part, in giving him the supreme mandate as their President,
the people can only trust and pray that, giving him their own loyalty and
without patriotism, the President will not fail them." 23 ) Under the Charter now
prevailing, the Chief Executive shares, to a certain extent, the exercise of
emergency powers, with Congress. 24
As a law advocate under the regime of Marcos, I had challenged the
soundness of Garcia-Padilla. I doubted whether it could stand up under the
aegis of the 1973 Constitution. I still doubt whether it can withstand scrutiny
under the 1987 Constitution.
The majority also fails to point out that six days after Garcia-Padilla was
handed down, the Court promulgated Morales, Jr. v. Enrile, 25 a case that in
my view has significantly whittled down Garcia-Padilla's very esse. In that
case, Mr. Justice Hermogenes Concepcion, Jr. wrote for the majority:
xxx xxx xxx
16. After a person is arrested . . . without a warrant . . . the
proper complaint or information against him must be filed
with the courts of justice within the time prescribed by law. . .
17. Failure of the public officer to do so without any valid
reason would constitute a violation of Art. 125, Revised
Penal Code, as amended. And the person detained would be
entitled to be released on a writ of habeas corpus, unless he
is detained under subsisting process issued by a competent
court. 26
I also gather from the records that none of the petitioners had been: (1)
informed of their right to remain silent; and (2) to have competent and
independent counsel. 27
As I said, the majority is denying habeas corpus on self-serving claims of the
military that the petitioners (Dural, Buenaobra, Roque, Añonuevo, and
Casiple) are members of the Communist Party of the Philippines — and that
they have supposedly confessed to be in fact members of the outlawed
organization. The question that has not been answered is whether or not
these supposed confessions are admissible, for purposes of a warrantless
arrest, as evidence of guilt, in the absence of any showing that they were
apprised of their constitutional rights. I am perturbed by the silence of the
majority. I am distressed because as we held in one case, violation of the
Constitution divests the court of jurisdiction and entitles the accused
to habeas corpus. 28
According to the majority, a "re-examination or re-appraisal . . . of
the Ilagan doctrine is not the answer." 29 In my considered opinion, Ilagan
v. Enrile 30 does not rightfully belong in the volumes of Philippine
jurisprudence. In that case, the petitioners, three Davao-based lawyers, were
held by virtue of a simple information ("the petition herein has been rendered
moot and academic by virtue of the filing of an Information against them for
Rebellion . . . and the issuance of a Warrant of Arrest against them" 31 )
without any preliminary investigation (examination) having been previously
conducted (to justify the issuance of a warrant).i•t•c-aüsl As I have stated, an
information is not a warrant of arrest. The fact that an information exists does
not mean that a warrant will be issued.
Accused persons have the right of preliminary investigation
(examination). 32 It forms part and parcel of due process of law .33
I find the majority's reliance on U.S. v. Wilson, 34 an ancient (1905) decision,
inapt and untenable. In that case, the accused had been served with a
warrant and thereafter taken into custody. The question that faced the Court
was whether or not the warrant was valid, amid the accused's charges that
the judge who issued it did not examine the complainant under oath. We held
that the query was academic, because the accused had already pleaded,
and the case had entered the trial stage.
The cases at bar are not on all fours. Here, no warrant has been issued. I
submit that in that event, the petitioners are entitled to freedom by way of the
writ of liberty.
x x x           x x x          x x x
The apprehensions in question chronicle in my mind the increasing pattern of
arrests and detention in the country without the sanction of a judicial decree.
Four years ago at "EDSA", and many years before it, although with much
fewer of us, we valiantly challenged a dictator and all the evils his regime had
stood for: repression of civil liberties and trampling on of human rights. We
set up a popular government, restored its honored institutions, and crafted a
democratic constitution that rests on the guideposts of peace and freedom. I
feel that with this Court's ruling, we have frittered away, by a stroke of the
pen, what we had so painstakingly built in four years of democracy, and
almost twenty years of struggle against tyranny.
It also occurs to me that I am interposing what looms as a quixotic outlook of
Philippine law on warrantless arrests and its implications on liberty. It is an
impression that does not surprise me. Quixotic as they may seem, and
modesty aside, my views reflect a strong bias on my part — forged by years
of experience and sharpened by a painful and lonely struggle for freedom
and justice — toward men and women who challenge settled beliefs. If this
dissent can not gain any adherent for now, let it nevertheless go on record as
a plea to posterity and an appeal for tolerance of opinions with which we not
only disagree, but opinions we loathe.
I feel it is my duty to articulate this dissent.
 
Separate Opinions
CRUZ, J., dissenting and concurring:
I dissent insofar as the ponencia affirms the ruling in Garcia-Padilla v. Enrile
that subversion is a continuing offense, to justify the arrest without warrant of
any person at any time as long as the authorities say he has been placed
under surveillance on suspicion of the offense. That is a dangerous doctrine.
A person may be arrested when he is doing the most innocent acts, as when
he is only washing his hands, or taking his supper, or even when he is
sleeping, on the ground that he is committing the "continuing" offense of
subversion. Libertarians were appalled when that doctrine was imposed
during the Marcos regime. I am alarmed that even now this new Court is
willing to sustain it. I strongly urge my colleagues to discard it altogether as
one of the disgraceful vestiges of the past dictatorship and uphold the rule
guaranteeing the right of the people against unreasonable searches and
seizures. We can do no less if we are really to reject the past oppression and
commit ourselves to the true freedom. Even if it be argued that the military
should be given every support in our fight against subversion, I maintain that
that fight must be waged honorably, in accordance with the Bill of Rights. I do
not believe that in fighting the enemy we must adopt the ways of the enemy,
which are precisely what we are fighting against. I submit that our more
important motivation should be what are we fighting for.
Except for this reservation and appeal, I concur with the decision.
FELICIANO, J., concurring:
I concur in the result reached in each of the eight (8) consolidated Petitions
for Habeas Corpus. At the same time, I have some reservations concerning
certain statements made by the Court in G.R. No. 81567 (Umil, et al. v.
Ramos) (Part I of the Decision) and in G.R. No. 85727 (Espiritu v. Lim) (Part
VI of the Decision).
In G.R. No. 81567 (Umil, et al. v. Ramos), the per curiam opinion states
categorically that: "the crimes of rebellion, subversion, conspiracy or proposal
to commit such crimes, and crimes or offenses committed in furtherance
thereof or in connection therewith constitute direct assaults against the State
and are in the nature of continuing crimes." The majority here relies
upon Garcia-Padilla v. Enrile (121 SCRA 472 [1983]). The majority there
made the same equally broad statement but without any visible effort to
examine the basis, scope and meaning of such a sweeping
statement. Garcia-Padilla did not even identify the specific offenses which it
regarded as "in the nature of continuing offenses which set them apart from
the common offenses" (121 SCRA at 489). It appears to me that in G.R. No.
85727 (Espiritu v. Lim) (Part VI of the Decision), the per curiam opinion has
in effect included the offense of "inciting to sedition" penalized under Article
142 of the Revised Penal Code as a "continuing offense" under the
capacious blanket of the majority opinion in Garcia-Padilla, at least for
purposes of determining the legality of the arrest without a warrant of
petitioner Deogracias Espiritu.
I would respectfully recall to my learned colleagues in the Court that "inciting
to sedition" is defined in Article 142 of the Revised Penal Code in terms of
speech 1 and that consequently it is important constantly do distinguish
between speech which is protected by the constitutional guaranty of freedom
of speech and of the press and speech which may constitutionally be
regarded as violative of Article 142 of the Revised Penal Code. Precisely
because speech which the police authorities might regard as seditious or as
criminal inciting to sedition may well turn out to be only an exercise of a
constitutionally guaranteed freedom, I would submit that we must apply the
concept of "continuing offense" narrowly for purposes of application of
Section 5(b), Rule 113 of the Revised Rules of Court.
In my view, the very broad statement made about "continuing crimes" in G.R.
No. 81567 (Umil, et al v. Ramos) constitutes dictum, considering that
Rolando Dural and Bernardo Itucal, Jr. had already been tried in the court
below for "double murder, etc." and found guilty of the offense charged,
sentenced accordingly, and at least in the case of Rolando Dural, service of
the sentence imposed upon him by the trial court had already begun.
Similarly, in G.R. No. 85727 (Espiritu v. Lim) the statement that the arrest of
petitioner Espiritu without a warrant was in accordance with the provisions of
Section 5(b), Rule 113 of the Revised Rules of Court does not appear strictly
necessary, considering that the petitioner had already been charged in a
valid information filed with the competent court, which court had presumably
issued an order for his commitment, and considering further that he is entitled
to bail.
There is thus no obstacle, to my mind, to a careful examination of the
doctrine of "continuing crimes" as applied to such offenses as subversion and
inciting to sedition and possibly other offenses, in some future case where
that issue is raised squarely and is unavoidable.
Cortes, J., concurs.
 
SARMIENTO, J.,  dissenting:
I beg to differ from my brethren. I submit that habeas corpus lies in all eight
cases.
G.R. No. 81567
The majority says that Rolando Dural's arrest without a warrant is lawful
under the Rules of Court, which reads:
Sec. 5. Arrest without warrant; when lawful. — A peace
officer or a private person may, without a warrant, arrest a
person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit
an offense;
 (b) When an offense has in fact just been committed, and he
has personal knowledge of facts indicating that the person to
be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his case
is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested
without a warrant shall be forthwith delivered to the nearest police station or
jail, and he shall be proceeded against in accordance with Rule 112, Section
7. 1
"Rolando Dural," so states the majority, "was arrested for being a member of
the New People's Army (NPA), an outlawed subversive organization," 2 and
that "[s]ubversion being a continuing offense, the arrest of Rolando Dural
without a warrant is justified as it can be said that he was committing an
offense when arrested." 3
As I said, I beg to differ.
First, Rolando Dural was charged with "Double Murder with Assault upon
Agents of Authority." 4 If he had been guilty of subversion — the offense for
which he was supposedly arrested via a warrantless arrest — subversion
was the logical crime with which he should have been charged.
The authorities could not have rightly arrested him for subversion on account
of the slay of the two CAPCOM soldiers, a possible basis for violation of the
Anti-Subversion Act, because as the majority points out, "he was not arrested
while in the act of shooting [them] . . . [n]or was he arrested just after the
commission of the said offense for his arrest came a day after the said
shooting incident." 5
Second, I do not believe that a warrantless (or citizen's) arrest is possible in
case of subversion — in the absence of any overt act that would justify the
authorities to act. "Subversion," as the term is known in law, means
"knowingly, wilfully and by overt acts affiliat[ing] [oneself] with, becom[ing] or
remain[ing] a member of the Communist Party of the Philippines and/or its
successor or of any subversion association as defined in sections two and
three hereof. . . . " 6 Logically, the military could not have known that Dural, at
the time he was taken, was a member of the New People's Army because he
was not performing any over act that he was truly, a rebel. Indeed, it had to
take a "verification"6 before he could be identified as allegedly a member of
the underground army. Under these circumstances, I am hard put to say that
he was committing subversion when he was arrested, assuming that he was
guilty of subversion, for purposes of a warrantless arrest.
"Overt act" is made up of "[e]very act, movement, deed and
word of the [accused]," 7 indicating intent to accomplish a
criminal objective. Dural, at the time he was arrested, was
lying in a hospital bed. This is not the overt act contemplated
by law.
Under the Rule above-quoted, the person must have either been
apprehended in flagranti (first paragraph) or after the act, provided that the
peace officer has "personal knowledge" that he, the suspect, is guilty.
(second paragraph.) As I stated, Dural was not caught in the act. Moreover,
what the Regional Intelligence Operations Unit of the Capital Command
(RIOU-CAPCOM) had in its hands was a mere "confidential information." I do
not think that this is the personal knowledge referred to by the second
paragraph. 8 Plainly and simply, it is hearsay.
The rule, furthermore, on warrantless arrest is an exceptional one. By its
language, it may be exercised only in the most urgent cases and when the
guilt of an offender is plain and evident. What I think we have here is purely
and simply, the military taking the law in its hands.
By stamping validity to Rolando Dural's warrantless arrest, I am afraid that
the majority has set a very dangerous precedent. With all due respect, my
brethren has accorded the military a blanket authority to pick up any Juan,
Pedro, and Maria without a warrant for the simple reason that subversion is
supposed to be a continuing offense.
That Rolando Dural was arrested for being a member of the New People's
Army" 9 is furthermore to me, a hasty statement. It has yet to be established
that Dural is indeed a member of the Communist Party's military arm. And
unless proven guilty, he is presumed, and must be presumed most of all by
this Court, to be innocent.
The majority also says that habeas corpus is moot and academic because
Dural has been convicted and is serving sentence. I likewise take exception.
It has been held that: "The writ may be granted upon a judgment already
final." 10
The writ of liberty is a high prerogative writ. 11 Vindication of due process is its
historic office. 12
G.R. Nos. 84581-82
In the case of Wilfredo Buenaobra, the majority avers that he had
"manifested his desire to stay in the PC-INP stockade," 13 for which habeas
corpus has supposedly become moot and academic. I am not convinced that
that is reason enough to dismiss habeas corpus as moot and academic. It is
the duty of this Court, in my opinion, to make sure that Buenaobra has made
his choice freely and voluntarily. Personally, I find it indeed strange why he
should prefer to stay in jail than go scot-free.
There is further no doubt that Buenaobra's petition is one impressed with a
public interest. In one case 14 we denied a motion to withdraw a petition
for habeas corpus in view of its far-reaching importance to the motion, I do
not see how we should act differently, perhaps even insouciantly, here,
especially since it involves persons who think and believe differently from the
rest of us.
Both Buenaobra and Amelia Roque supposedly admitted that they were
ranking officers of the Communist Party of the Philippines. According to the
majority, Buenaobra and Roque are bound by their admissions. 15
That both parties had admitted to be members of the Communist Party of the
Philippines (the National United Front Commission) is a naked contention of
the military. The fact that it has not been controverted, in my view, does not
justify the couple's arrest without warrant. Worse, by relying on the bare word
of the military, this very Court has, to all intents and purposes, condemned
the duo for a crime (subversion and/or illegal possession of firearms) the
bone of contention, precisely, below.
G.R. Nos. 84583-84
I also find the warrantless arrests of Domingo Añonuevo and Ramon Casiple
to be contrary to law. That they are "admittedly members of the standing
committee of the NUFC" 16 and that "subversive materials" 17 and unlicensed
firearms were found in their possession, are, like Buenaobra's and Roque's
cases, barren claims of the military. I also fear that by the majority's strong
language (that Añonuevo and Casiple are admitted NUCF officers) the
majority has pronounced the petitioners guilty, when the lower courts have
yet to sit in judgment. I think we should be the last to preempt the decision of
the trial courts. We would have set to naught the presumption of innocence
accused persons enjoy.
G.R. No. 83162
With respect to the case of Vicky Ocaya, I am afraid that I am inclined
towards the same conclusion. There was basis — at the outset — to say that
Ocaya was probably guilty of illegal possession of firearms. As I have
observed, a warrantless arrest must be predicated upon the existence of a
crime being actually committed or having been committed. What I find here,
rather, is nothing less than a successful fishing expedition conducted by the
military upon an unwary citizen. I am quite distressed to note that this is still
possible under a supposed democracy.
G.R. No. 85727
Deogracias Espiritu was fast asleep in his house when he was placed under
arrest. For the life of me, I can not figure out how one can be picked upon in
one's own home and held moments later without a warrant of arrest.
Espiritu was allegedly guilty of inciting to sedition as a result of a speech
delivered in a press conference at the National Press Club on November 21,
1988. He was, however, arrested the day after, November 22, 1988. Under
these circumstances, it eludes me how an arrest without a warrant could be
justified, either under paragraph (a) or paragraph (b) of the Rule on
warrantless arrests.
The majority avers that since an information had been filed with the court,
Espiritu's detention, is allegedly justifiable. The question is whether or not an
information is an authority to hold a person in custody. Under the Rules, an
information means "an accusation in writing charging a person with an
offense subscribed by the fiscal and filed with the court." 18 It is not, however,
an order to keep one under detention.
G.R. No. 86332
The offense for which Narciso Nazareno is being held — the fatal shooting of
Romulo Bunye II — was committed on December 14, 1988. It was, however,
only on December 28, 1988 that the police collared a suspect, Ramil Regala,
who subsequently pointed to Nazareno as his accomplice. It also escapes
me how Nazareno, under these circumstances, could have been validly put
under arrest without a warrant or the existence of the circumstance described
under either paragraph (a) or (b) of the Rule above-quoted: The crime had
long been committed prior to the arrest.
G.R. Nos. 81567; 84581-82; 84583-84; 83162;
85727 & 86332; Postscripts
The majority has disposed of these cases on the bedrock of what I view as
doctrines that have lost their luster:
1. The teaching of Garcia-Padilla v. Enrile, 19 which held that subversion is a
continuing offense;
2. The ruling in Ilagan v. Enrile. 20
I also find, for reasons to be set forth hereinafter, a glossing over of the
fundamental rights of the petitioners under the Constitution in the authorities'
handling of the petitioners' cases.
I hold that Garcia-Padilla is no longer good law under the present
Constitution. Two reasons persuade me. First, it is repugnant to due process
of law. ("The arrest, therefore, need not follow the usual procedure in the
prosecution of offenses which require the determination by a judge of the
existence of probable cause before the issuance of a judicial warrant of
arrest and the granting of bail if the offense is bailable." 21 Under the 1987
Constitution, not even "[a] state of martial law suspend[s] the operation of
[the Charter]. . ." 22 Second, it leaves the liberty of citizens to the whim of one
man ("On these occasions [the existence of a state of emergency], the
President takes absolute command, for the very life of the Nation and its
government, which, incidentally, includes the courts, is in grave peril. In so
doing, the President is answerable only to his conscience, the people and to
God. For their part, in giving him the supreme mandate as their President,
the people can only trust and pray that, giving him their own loyalty and
without patriotism, the President will not fail them." 23 ) Under the Charter now
prevailing, the Chief Executive shares, to a certain extent, the exercise of
emergency powers, with Congress. 24
As a law advocate under the regime of Marcos, I had challenged the
soundness of Garcia-Padilla. I doubted whether it could stand up under the
aegis of the 1973 Constitution. I still doubt whether it can withstand scrutiny
under the 1987 Constitution.
The majority also fails to point out that six days after Garcia-Padilla was
handed down, the Court promulgated Morales, Jr. v. Enrile, 25 a case that in
my view has significantly whittled down Garcia-Padilla's very esse. In that
case, Mr. Justice Hermogenes Concepcion, Jr. wrote for the majority:
xxx xxx xxx
16. After a person is arrested . . . without a warrant . . . the
proper complaint or information against him must be filed
with the courts of justice within the time prescribed by law. . .
17. Failure of the public officer to do so without any valid
reason would constitute a violation of Art. 125, Revised
Penal Code, as amended. And the person detained would be
entitled to be released on a writ of habeas corpus, unless he
is detained under subsisting process issued by a competent
court. 26
I also gather from the records that none of the petitioners had been: (1)
informed of their right to remain silent; and (2) to have competent and
independent counsel. 27
As I said, the majority is denying habeas corpus on self-serving claims of the
military that the petitioners (Dural, Buenaobra, Roque, Añonuevo, and
Casiple) are members of the Communist Party of the Philippines — and that
they have supposedly confessed to be in fact members of the outlawed
organization. The question that has not been answered is whether or not
these supposed confessions are admissible, for purposes of a warrantless
arrest, as evidence of guilt, in the absence of any showing that they were
apprised of their constitutional rights. I am perturbed by the silence of the
majority. I am distressed because as we held in one case, violation of the
Constitution divests the court of jurisdiction and entitles the accused
to habeas corpus. 28
According to the majority, a "re-examination or re-appraisal . . . of
the Ilagan doctrine is not the answer." 29 In my considered opinion, Ilagan
v. Enrile 30 does not rightfully belong in the volumes of Philippine
jurisprudence. In that case, the petitioners, three Davao-based lawyers, were
held by virtue of a simple information ("the petition herein has been rendered
moot and academic by virtue of the filing of an Information against them for
Rebellion . . . and the issuance of a Warrant of Arrest against them" 31 )
without any preliminary investigation (examination) having been previously
conducted (to justify the issuance of a warrant).i•t•c-aüsl As I have stated, an
information is not a warrant of arrest. The fact that an information exists does
not mean that a warrant will be issued.
Accused persons have the right of preliminary investigation
(examination). 32 It forms part and parcel of due process of law .33
I find the majority's reliance on U.S. v. Wilson, 34 an ancient (1905) decision,
inapt and untenable. In that case, the accused had been served with a
warrant and thereafter taken into custody. The question that faced the Court
was whether or not the warrant was valid, amid the accused's charges that
the judge who issued it did not examine the complainant under oath. We held
that the query was academic, because the accused had already pleaded,
and the case had entered the trial stage.
The cases at bar are not on all fours. Here, no warrant has been issued. I
submit that in that event, the petitioners are entitled to freedom by way of the
writ of liberty.
 x x x           x x x          x x x
The apprehensions in question chronicle in my mind the increasing pattern of
arrests and detention in the country without the sanction of a judicial decree.
Four years ago at "EDSA", and many years before it, although with much
fewer of us, we valiantly challenged a dictator and all the evils his regime had
stood for: repression of civil liberties and trampling on of human rights. We
set up a popular government, restored its honored institutions, and crafted a
democratic constitution that rests on the guideposts of peace and freedom. I
feel that with this Court's ruling, we have frittered away, by a stroke of the
pen, what we had so painstakingly built in four years of democracy, and
almost twenty years of struggle against tyranny.
It also occurs to me that I am interposing what looms as a quixotic outlook of
Philippine law on warrantless arrests and its implications on liberty. It is an
impression that does not surprise me. Quixotic as they may seem, and
modesty aside, my views reflect a strong bias on my part — forged by years
of experience and sharpened by a painful and lonely struggle for freedom
and justice — toward men and women who challenge settled beliefs. If this
dissent can not gain any adherent for now, let it nevertheless go on record as
a plea to posterity and an appeal for tolerance of opinions with which we not
only disagree, but opinions we loathe.
I feel it is my duty to articulate this dissent.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION  circumstance of nocturnity was present.1
G.R. No. 88189 July 9, 1996
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
TIBURCIO ABALOS, accused-appellant.
REGALADO, J.:p
In this appeal, accused-appellant Tiburcio Abalos seeks absolution from the
judgment of conviction rendered by the Regional Trial Court, Branch 27, of
Catbalogan, Samar which pronounced him guilty of the complex crime of
direct assault with murder in Criminal Case No. 2302. His arguments in the
present appeal turn on the central question of unwarranted credence
allegedly extended by the trial court to the version of the criminal incident
narrated by the sole prosecution witness. The totality of the evidence
adduced, however, indubitably confirms appellant's guilt of the offense
charged. Accordingly, we affirm.
An information filed in the trial court, dated April 21, 1983, imputed the crime
of direct assault with murder to herein appellant Tiburcio
Abalos, alias "Ewet," with the allegations —
That on or about the 20th day of March, 1983, at nighttime,
in the Municipality of Catbalogan, Province of Samar,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, with deliberate intent to
kill, with treachery and evident premeditation and knowing
fully well that one Sofronio Labine was an agent of a person
in authority being a member of the Integrated National Police
with station at Catbalogan, Samar, did then and there
willfully, unlawfully and feloniously attack, assault and strike
said Sofronio Labine with a piece of wood, which said
accused ha(d) conveniently provided himself for the purpose
while said P/Pfc. Sofronio Labine, a duly appointed and
qualified member of the said INP, was engaged in the
performance of his official duties or on the occasion of such
performance, that is, maintaining peace and order during the
barangay fiesta of Canlapwas, of said municipality, thereby
inflicting upon him "Lacerated wound 2 inches parietal area
right. Blood oozing from both ears and nose" which wound
directly caused his death.
That in the commission of the crime, the aggravating
At his arraignment on June 7, 1983, appellant, with the assistance of
counsel, entered a plea of not guilty. 2 The trial conducted thereafter
culminated in the decision3 of the trial court on February 3, 1989 finding
appellant guilty as charged and meting out to him the penalty of "life
imprisonment, with the accessories of the law." Appellant was likewise
ordered to indemnify the heirs of the victim in the sum of P30,000.00; actual
and compensatory damages in the amount of P2,633.00, with P15,000.00 as
moral damages; and to pay the costs. 4
As recounted by prosecution witness Felipe Basal, a farmer residing in
Barangay Pupua, Catbalogan, Samar, appellant assaulted the victim, Pfc.
Sofronio Labine, at around 8:00 P.M. of March 20, 1983, which was then the
day of the barangay fiesta celebrations in Barangay Canlapwas, Catbalogan,
Samar. The incident transpired near the house of appellant at the
said barangay. Felipe Basal was then having a drinking session in front of
the shanty of one Rodulfo Figueroa, Jr. which was situated just a few meters
from the residence of appellant.
According to Basal, at about that time he noticed the father of appellant,
Police Major Cecilio Abalos, scolding his employees in his transportation
business for turning in only two hundred pesos in earnings for that day. While
Major Abalos was thus berating his employees, appellant arrived and asked
his father not to scold them and to just let them take part in
the barangay festivities. This infuriated the elder Abalos and set off a heated
argument between father and son.5
While the two were thus quarreling, a woman shouted "Justicia, boligue
kumi!  Adi in mag-a-aringasa." meaning, "Police officer, help us! Somebody's
making trouble here." The victim, Pfc. Sofronio Labine, then appeared on the
scene and asked Major Abalos, "What is it, sir?" The victim saluted Abalos
when the latter turned around to face him. As Major Abalos leveled his
carbine at Labine, appellant hurriedly left and procured a piece of wood,
about two inches thick, three inches wide and three feet long, from a nearby
Ford Fiera vehicle.
He then swiftly returned and unceremoniously swung with that wooden piece
at Labine from behind, hitting the policeman at the back of the right side of
his head. Labine collapsed unconscious in a heap, and he later expired from
the severe skull fracture he sustained from that blow. Felipe Basal and his
wife took flight right after appellant struck the victim, fearful that they might be
hit by possible stray bullets6 should a gunfight ensue.
Appellant's testimony, on the other hand, is of a different tenor. He admits
having struck Labine with a piece of wood during the incident in question but
claims that he did so in the erroneous belief that his father was being
attacked by a member of the New People's Army (NPA). According to
appellant, he was then seated inside their family-owned Sarao jeepney
parked beside the store of Rodulfo Figueroa, Jr. near their home in Barangay
Canlapwas when he noticed a man in fatigue uniform suddenly accost his
father. At that time, appellant's father had just arrived from a trip from Wright,
Samar and had just alighted from his service vehicle, a Ford Fiera.
The man tried to disarm Major Abalos of his firearm but the latter resisted
and while the two were grappling for possession of the gun, appellant
instinctively went to the rescue of his father. He got a piece of wood from
Figueroa's store with which he then clubbed Labine whom he did not
recognize at that point. When Labine fell to the ground from the blow,
appellant immediately fled to Barangay Mercedes nearby, fearing that the
man had companions who might retaliate. When he came to know of the
identity of his victim the following morning, he forthwith surrendered to the
authorities.7
As mentioned at the outset, the foregoing version of the factual antecedents
as presented by appellant was roundly rejected by the lower court which
found the same unworthy of belief. Appellant ascribes reversible errors to the
trial court (a) in not giving credence to the evidence adduced by the defense;
(b) in believing the evidence presented by the prosecution; (c) in relying on
the prosecution's evidence which falls short of the required quantum of
evidence that would warrant a conviction; (d) in finding that treachery
attended the commission of the crime and failing to credit in appellant's favor
his voluntary surrender; and (e) in finding appellant guilty beyond reasonable
doubt of the crime charged.8
In the main, appellant insists that the trial court should not have given
credence to the story of the lone eyewitness for the prosecution. He also
contends that since the testimony of that witness bore clear traces of
incredibility, particularly the fact that he could not have had a clear view of
the incident due to poor visibility, the prosecution should have presented as
well the woman who had called for help at the height of the incident if only to
corroborate Basal's narration of the events. Appellant also assails as
inherently incredible the fact that it took quite a time for witness Felipe Basal
to come forward and divulge what he knew to the authorities. All these,
unfortunately, are flawed arguments.
From the evidence in the case at bar, the prosecution has convincingly
proved, through the clear and positive testimony of Basal, the manner in
which the victim was killed by herein appellant. The record is bereft of any
showing that said prosecution witness was actuated by any evil motivation or
dubious intent in testifying against appellant. Moreover, a doctrine of long
standing in this jurisdiction is that the testimony of a lone eyewitness, if
credible and positive, is sufficient to convict an accused. 9 There was thus no
need, as appellant would want the prosecution to do, to present in court the
woman who shouted for assistance since her testimony would only be
corroborative in nature.
The presentation of such species of evidence in court would only be
warranted when there are compelling reasons to suspect that the eyewitness
is prevaricating or that his observations were inaccurate. 10 Besides, it is up
to the People to determine who should be presented as prosecution witness
on the basis of its own assessment of the necessity for such
testimony. 11 Also, no unreasonable delay could even be attributed to Felipe
Basal considering that during the wake for Pfc. Labine, Basal came and
intimated to the widow of the victim that he was going to testify regarding her
husband's slaying. 12
Appellant's contention that the deceased had attacked and attempted to
divest his father of his firearm is rather preposterous considering that no
reason was advanced as to why the deceased patrolman would assault a
police officer of superior rank. Parenthetically, the condition of visibility at the
time of the incident was conducive not only to the clear and positive
identification of appellant as the victim's assailant but likewise to an actual
and unobstructed view of the events that led to the victim's violent death.
Basal was seated just a few meters away from the protagonists whom he all
knew, he being also a long-time resident of that municipality. There was a
twelve-foot high fluorescent lamppost located along the road and which, by
appellant's own reckoning, was just seventeen meters away from
them. 13 Notwithstanding the fact that a couple of trees partly obstructed the
post, the illumination cast by the fluorescent lamp and the nearby houses
provided sufficient brightness for the identification of the combatants.
Curiously enough, appellant's assertion that there was poor visibility is
ironically contradicted by his testimony which is detailed on facts that one
could readily recall after witnessing an event in broad daylight. While
appellant considers unbelievable Basal's identification of him supposedly
because of inadequate lighting, he himself, under the same conditions, could
clearly see his father's assailant wearing a fatigue uniform which was
different from that worn by policemen. He even asserts that he saw his father
clutching the carbine with his hands holding the butt while his purported
assailant held on tightly to the rifle. 14 What these facts establish is that the
lights in the area at the time of the incident were enough to afford Basal an
excellent view of the incident, contrary to appellant's pretense. Appellant's
testimony is thus negated by the rule that evidence, to be believed, must
have been given not only by a credible witness, but that the same must also
be reasonably acceptable in itself.
Appellant's flight right after he had assaulted the victim is also corrosive of
his testimony. For, if it were true that he had merely labored under the wrong
notion that his father was being attacked by a member of the NPA, and that it
was an innocent case of error in personae, he could have readily
surrendered to his father right then and there. After all, Cecilio Abalos was a
police major and was the Station Commander of the Integrated National
Police (INP) in Wright, Samar. Further, there was no necessity at all for him
to flee from the crime scene for fear of retaliation considering that he was in
the company of his own father who, aside from his position, was then armed
with a carbine. Appellant's explanation is, therefore, absurd and should be
considered as self-serving evidence with no weight in law.
On the offense committed by appellant, the trial court correctly concluded
that he should be held accountable for the complex crime of direct assault
with murder. There are two modes of committing atentados contra la
autoridad o sus agentes under Article 148 of the Revised Penal Code. The
first is not a true atentado as it is tantamount to rebellion or sedition, except
that there is no public uprising. On the other hand, the second mode is the
more common way of committing assault and is aggravated when there is a
weapon employed in the attack, or the offender is a public officer, or the
offender lays hands upon a person in authority. 15
Appellant committed the second form of assault, the elements of which are
that there must be an attack, use of force, or serious intimidation or
resistance upon a person in authority or his agent; the assault was made
when the said person was performing his duties or on the occasion of such
performance; and the accused knew that the victim is a person in authority or
his agent, that is, that the accused must have the intention to offend, injure or
assault the offended party as a person in authority or an agent of a person in
authority. 16
Here, Labine was a duly appointed member of the then INP in Catbalogan,
Samar and, thus, was an agent of a person in authority pursuant to Article
152 of the Revised Penal Code, as amended. There is also no dispute that
he was in the actual performance of his duties when assaulted by appellant,
that is, he was maintaining peace and order during the fiesta in Barangay
Canlapwas. Appellant himself testified that he personally knew Labine to be a
policeman 17 and, in fact, Labine was then wearing his uniform. These facts
should have sufficiently deterred appellant from attacking him, and his defiant
conduct clearly demonstrates that he really had the criminal intent to assault
and injure an agent of the law.
When the assault results in the killing of that agent or of a person in authority
for that matter, there arises the complex crime of direct assault with murder
or homicide. 18 The killing in the instant case constituted the felony of murder
qualified by alevosia through treacherous means deliberately adopted Pfc.
Labine was struck from behind while he was being confronted at the same
time by appellant's father. The evidence shows that appellant deliberately
went behind the victim whom he then hit with a piece of wood which he
deliberately got for that purpose.
Obviously, appellant resorted to such means to avoid any risk to himself,
knowing fully well that his quarry was a policeman who could readily mount a
defense. The aggravating circumstances of evident premeditation and
nocturnity, however, were not duly proven, as correctly ruled by the court
below. On the other hand, appellant's voluntary surrender even if duly taken
into account by the trial court would have been inconsequential.
The offense is a complex crime, the penalty for which is that for the graver
offense, to be imposed in the maximum period. Considering that the more
serious crime of murder then carried the penalty of reclusion temporal in its
maximum period to death, the imposable penalty should have been death.
The mitigating circumstance, in that context, would have been unavailing and
inapplicable since the penalty thus imposed by the law is indivisible. 19 At all
events, the punishment of death could not be imposed as it would have to be
reduced to reclusion perpetua due to the then existing proscription against
the imposition of the death penalty. 20
However, the designation by the trial court of the imposable penalty as "life
imprisonment" is erroneous, as the same should properly be denominated
as reclusion perpetua. 21 Also, the death indemnity payable to the heirs of the
victim, under the present jurisprudential policy, is P50,000.00.
ACCORDINGLY, with the MODIFICATION that the penalty imposed upon
accused-appellant Tiburcio Abalos should be reclusion perpetua, and that
the death indemnity is hereby increased to P50,000.00, the judgment of the
court a quo in Criminal Case No. 2302 is AFFIRMED in all other respects,
with costs against accused-appellant.
SO ORDERED.
Romero, Puno, Mendoza and Torres, Jr., JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
 
G.R. No. 109617 August 11, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FELIPE SION @ "JUNIOR," JOHNNY JUGUILON, EDONG SION, FELIX
SION @ "ELLET," and FEDERICO DISU @ MIGUEL," accused.
FELIPE SION @ "JUNIOR" and FEDERICO DISU @ "MIGUEL," accused-
appellants.
DAVIDE, JR., J.:
In its decision1 in Criminal Case No. D-10796 dated 20 January 1993, but
promulgated on 8 February 1993, Branch 44 (Dagupan City) of the Regional
Trial Court of the First Judicial Region decreed as follows:
WHEREFORE, the Court finds accused Felipe Sion alias "Junior"
and Federico Disu alias Miguel Disu guilty beyond reasonable doubt
as principals of the crime of Murder pursuant to Article 248 of the
Revised Penal Code, and in view of the attendance of the
aggravating circumstance of cruelty which is not offset by any
mitigating circumstance, the two accused are hereby sentenced to
suffer the penalty of Reclusion Perpetua, and to indemnify jointly the
heirs of the victim the sum of P50,000.00 and to pay the costs of the
proceedings.
Accused Felipe Sion alias "Junior" and Federico Disu alias Miguel
Disu are ordered to pay jointly the heirs of the victim the sum of
P11,910.00 as actual damages.
SO ORDERED.
Felipe Sion alias "Junior," whose full name is Felipe Rodriguez Sion,
Jr.2 (hereafter appellant Sion), and Federico Disu alias "Miguel" (hereafter
appellant Disu), seasonably appealed therefrom to this Court 3 in view of the
penalty imposed.4
The case against appellants commenced with the filing of a criminal
complaint for Murder5 on 19 November 1991 in Criminal Case No. 2141 (SP-
91) before the Fourth Municipal Circuit Trial Court of San Fabian-San Jacinto
in the Province of Pangasinan. Charged with appellants therein were Johnny
Juguilon, Edong Sion, Felix Sion alias "Ellet," and "four (4) other John Does."
After appropriate preliminary examination, Judge Sergio Garcia of said court
issued a warrant for the arrest of the accused with no bail fixed for their
temporary liberty.6 However, the warrant was served only on appellant Disu,
while the rest then remained at large. Upon appellant Disu's motion for bail,
to which Asst. Provincial Prosecutor Restituto Dumlao, Jr., recommended
that bail be fixed at P40,000.00 for said accused only, the court fixed said
accused's bail at such amount; and upon filing and approval of the bail bond,
appellant Disu was ordered released.7 Subsequently, one Atty. Fernando
Cabrera filed, for the rest of the accused, a motion to reduce the bail from
P40,000.00 to
P20,000.00.8 As Provincial Prosecutor Dumlao agreed to a reduction of
P10,000.00, the court granted the motion and fixed bail at P30,000.00. None
of them, however, filed a bail bond.
For failure of the accused to submit the required counter-affidavits, the
Municipal Circuit Trial Court, finding probable cause against all the accused
for the crime of murder on the basis of the evidence for the prosecution,
ordered the transmittal of the record of the case, including the bail bond of
accused Federico Disu, to the Office of the Provincial Prosecutor of
Pangasinan for appropriate action.9
On 21 January 1992, an Information 10 was filed with the Regional Trial Court
(RTC), First Judicial Region, in Dagupan City, Pangasinan, against
appellants Sion and Disu and Johnny Juguilon, Edong Sion, Felix
Sion alias "Ellet," and four (4) unidentified persons (designated as John,
Peter, Richard and Paul Doe), accusing them of the crime of murder
committed as follows:
That on or about October 16, 1991 in the evening at Brgy. Binday,
municipality of San Fabian, province of Pangasinan, Philippines and
within the jurisdiction of this Honorable Court, the above-named
accused, armed with stones and a bladed weapon conspiring,
confederating and mutually helping one another with intent to kill with
treachery and evident premeditation did, then and there wilfully,
unlawfully and feloniously hurl with stones, attack and stab Fernando
Abaoag inflicting upon him the following injuries:
— stab wound 1 1/2 inches in width,
9 inches in depth between 10-11
ICS, mid axillary area slanting
upwards hitting the left lobe of the
lung
— stab wound right lateral side of
the neck 1 1/2, inch in depth
— stab wound 1 1/2 inches in width,
1 1/2 in depth mid scapular area, left
— contusion superimposed abrasion
left eyebrow
which caused his instant death, to the damage and
prejudice of his heirs.
CONTRARY to Art. 248, Revised Penal Code.
The information was docketed as Criminal Case No. D-10796 and assigned
to Branch 44 thereof.
On 2 June 1992, accused Sion was arrested. 11 Then on 10 June 1992, the
RTC annulled and voided the bail earlier granted to appellant Disu by the
MCTC Judge Sergio Garcia for luck of proper hearing, denied the motion for
bail filed by appellant Sion, and ordered their detention in jail. 12
Since only appellants Sion and Disu were arrested, the case proceeded
against them only. Upon arraignment, both pleaded not guilty to the charge
and waived pre-trial.13
The prosecution's witnesses were Cesar and Felicitas Abaoag, the brother
and the wife of the victim, respectively; Dr. Leopoldo Manalo, San Fabian
Municipal Health Officer; Rosendo Imuslan, barangay captain of Barangay
Binday; and SPO1 Ricardo Abrio. On the other hand, the defense presented
as its witness appellant Disu; appellant Sion; Corazon Sion, wife of appellant
Sion; and Dr. Leopoldo Manalo.
The evidence for the prosecution as established by the testimonies of its
witnesses is partly summarized by the Office of the Solicitor General in the
Brief for the Appellee, as follows:
On or about 7:00 o'clock in the evening of October 16, 1991, Cesar
Abaoag was at the barangay road in front of his house situated in
Binday, San Fabian, Pangasinan. He was with his elder brother
Carlos Abaoag and Ricardo Manuel (p. 6, TSN, August 20, 1992)
when all of a sudden, Ronnie Manuel arrived coming from the west
complaining that he was being chased by Felipe Sion and Johnny
Juguilon (p. 7, TSN, id.). On that same occasion, Fernando Abaoag
also arrived at the scene. He said to Ronnie, "why Ronnie, you are
making trouble again." The latter answered, "I am not making trouble
uncle because while I was inside the house of Eling Alcantara, Felipe
Sion and Johnny Juguilon were trying to stab me. (p. 8, TSN, id.).
Seconds later, Felipe Sion and Johnny Juguilon appeared and
started throwing stones. Fernando Abaoag told them to stop throwing
stones but before they desisted and left, one of them uttered "even
you Andong, you are interfering, you will also have your day, vulva of
your mother, you Abaoag[s]" (pp. 9-10, id.) Apparently, the utterance
was directed against Fernando Abaoag whose nickname is Andong.
Subsequently thereafter, at about 9:00 o'clock on that same evening,
Cesar Abaoag while inside his house lying down on his bed heard
the sound of stone throwing at the nearby house of his brother
Fernando. He went out to see who were throwing stones (14,
TSN, id.). When already near the house of Lolly Galdones, Cesar
Abaoag saw his brother Fernando already outside his house. He also
saw Johnny Juguilon, one of the members of the group of stone
throwers, hurl a big stone against Fernando. Upon being hit on the
left eyebrow, Fernando turned his back towards Felix Sion, Edong
Sion and Miguel Disu who were also throwing stones towards his
direction. On the other hand, appellant Felipe Sion, who was near
the victim, with a very sharp double bladed dagger, stabbed
Fernando, first on the left side just below the armpit, then on the left
waistline and finally on the right side of the neck below the jaw (pp.
18-19, TSN, id.).
Cesar tried to extend help to his brother but Miguel Disu hurled a
stone on him which landed on his right side below the armpit. When
he heard Felipe Sion shouting to his companions saying, "we will
also kill Cesar," Cesar desisted in helping brother (pp. 22-23,
TSN, id.). Instead, he ran to his brother's house and informed
Felicitas, the wife, about the helpless condition of Fernando (pp. 22-
23, TSN, id.). Upon being informed, Felicitas accompanied by Carlos
Abaoag, went to the place of the incident. The assailants were no
longer there. She only saw her husband lying prostate on the ground
very weak in the state of dying. When she inquired what happened,
Fernando answered "naalaak" which in English means "I was hit"
(pp. 4-5, TSN, July 27, 1992). Fernando told his wife that his
assailants were Felipe Sion, Miguel Disu, Edong Sion, Johnny
Juguilon and Felix Sion (p. 6, TSN, id.)
The victim was rushed to St. Blaise Hospital in San Fabian but he
was pronounced dead on arrival (pp. 24-25, TSN, August 20, 1992).
Dr. Leopoldo Manalo, a Municipal Health Officer of San Fabian,
Pangasinan conducted  post mortem examination (Exh. A) on the
body of the victim. The result of his findings showed that Fernando
Abaoag sustained the following injuries, to wit:
1) stab wound 1 1/2 inches in width, 9 inches in depth between 10-
11, ICS, mid axillary area slanting upwards hitting the left lobe of the
lung
2) stab wound right lateral side of the neck 1 1/2 inches in width, 1
1/2 inch in depth
3) stab wound 1 1/2 inches in width, 1 1/2 in depth mid scapular
area, left
4) contusion superimposed abrasion left eyebrow.14
Dr. Manalo further testified that the stab wounds were caused by a sharp-
pointed instrument, possibly a dagger, with the first wound hitting the lower
lobe of the left lung causing severe bleeding and its eventual collapse. He
determined the cause of death to be hemorrhagic shock secondary to
multiple stab wounds.15
Barangay Captain Imuslan testified that he and Kagawad Fernando
Gatchalian, on the night of the incident, found a small bolo and a bloodied
double-bladed weapon (dagger) near the scene of the crime. 16 Cesar Abaoag
recognized this weapon as the one used by appellant Sion in stabbing the
victim.17 On her part, Felicitas Abaoag declared that she spent more than
P11,000.00 for the wake and burial of her husband whose death saddened
her, she being left alone to take care of their children. 18
In his defense, appellant Sion, brother and cousin of accused Edong 19 Sion
and Felix Sion alias "Ellet," respectively, admitted that on the night in
question, he participated in a stone-throwing incident and "free-for-all rumble"
between his group (the Sions and Johnny Juguilon) on one hand, and the
Abaoags and Manuels, on the other. However, he professed his innocence,
claiming that it was his brother Edong Sion and Johnny Juguilon who
stabbed the victim.20 His version of the incident was summarized by the trial
court, thus:
On October 16, 1991 at about 7:00 p.m., he, together with Johnny
Juguilon went to the house of Eling Alcantara as he wanted to talk
 with his son, his friend. Ronnie Manuel was already there when they
arrived. While at the place, Johnny Juguilon and Ronnie Manuel
came out and started fighting with each other. Ronnie and Manuel
ran and proceeded to the place of his cousin. He was pacifying
Johnny Juguilon and Ronnie Manuel but Johnny Juguilon threw
stones at Ronnie Manuel. At this point, Fernando Abaoag intervened
in the quarrel saying, "vulva of your mother Johnny, you are too
much, you will also have your day." Johnny Juguilon answered
"vulva of your mother Andoy, do not interfere because you are not
our enemy." After the verbal exchange, he took Johnny Juguilon to
their (Sion's) house . . . . At about 9:00 p.m., that same evening, they
stoned their house, its sides and the stairs. He and Idong and
Johnny Juguilon looked for Cesar Abaoag, Ronnie Manuel, Ricky
Manuel, Andong Abaoag and two (2) other companions. They were
at the place of Marta Soriano. After that, they still threw stones
towards them. There was a free for all rumble between Ronnie
Manuel, Ricky Manuel, the Abaoags and Idong Sion, and Johnny
Juguilon, Ellet Sion and himself, in front of the house of Loly
Galdones. He denied the testimony of Cesar Abaoag that he stabbed
Fernando Abaoag three times and before he was stabbed Johnny
Juguilon stoned him (Fernando Abaoag). It was Idong Sion and
Johnny Juguilon who stabbed Fernando Abaoag. After Fernando
Abaoag was stabbed, they ran away. His group also ran away. He
went home and rushed towards Johnny Juguilon because he was
stabbed. He brought Juguilon to the St. Blaise Clinic and Hospital.
He did not report the incident to Barangay Captain Rosendo Imuslan.
On October 17, 1:00 p.m., he presented himself to Kagawad Lagman
who brought him to the Police Station . . . .21
In his defense, appellant Disu offered denial and alibi. He declared that he
had no participation in the killing of Fernando Abaoag, and during the whole
night of 16 October 1991, while the quarrel, stoning and stabbing incidents in
question were taking place, he was resting and sleeping in the house of his
employer, Felicidad Gatchalian, after driving the latter's jeepney the entire
day. However, before proceeding home from work that afternoon, he went to
the store of Oping Juguilon to buy cigarettes and dropped by the house of
appellant Sion where he stayed for about five minutes. He only learned about
the killing the following morning when he was told that he was one of the
suspects. He was arrested about a month after the incident. 22
On rebuttal, Cesar Abaoag refuted the testimony of appellant Sion. Cesar
asserted that neither his brothers, the Manuels nor himself threw stones at
Sion's house; there was no free-for-all fight between the Sions and the
Abaoags; Johnny Juguilon and Edong Sion merely threw stones at, but did
not stab, Fernando Abaoag; and it was only appellant Sion who stabbed
Fernando Abaoag.23
After the conclusion of trial, the court granted appellants' motion to file a
memorandum within fifteen days. Despite the extension given, appellants'
counsel did not file the memorandum. Thus, in its order of 11 December
1992, the trial court declared the case submitted for decision. 24
On 8 February 1993, the trial court promulgated its decision, 25 the dispositive
portion quoted in the introductory paragraph of this ponencia.
As to the culpability of appellants Sion and Disu, the trial court found:
The defense of accused Federico Disu alias Miguel Disu and Felipe
Rodriguez Sion, Jr. deserve scant consideration. Cesar Abaoag
narrated in detail how his brother Fernando Abaoag was stoned by
accused Johnny Juguilon, Federico Disu and Felix Sion and how
accused Felipe Sion stabbed Fernando Abaoag three times. Cesar
Abaoag saw Johnny Juguilon throw stone hitting the left eyebrow of
Fernando Abaoag, and when his brother (Fernando Abaoag) turned
left, accused Federico Disu alias Miguel Disu, Idong Sion and Felix
Sion simultaneously threw stones toward him (Fernando Abaoag).
Then, at a distance of two (2) meters, Cesar Abaoag saw accused
Felipe Sion stab Fernando Abaoag three times, hitting the left side
below the armpit, then on the left waistline and the right side of the
neck below the jaw of the deceased with the use of a sharp double
bladed dagger.
Cesar Abaoag could not be mistaken in the identification because he
was two meters away when he saw the accused Felipe Sion stab his
brother, and, moreover, there was a light illuminating the place of the
incident coming from the houses of Marta Soriano and Loly
Caldones. Cesar Abaoag identified the dagger (Exhibit D).
The narrations of Cesar Abaoag are bolstered by the testimony of Dr.
Leopoldo Manalo, the doctor who conducted the postmortem
examination on the cadaver of Fernando Abaoag. Dr. Manalo stated
that "stab wound 1 1/2 inches in width, 9 inches in depth between
10-11 ICS, mid-axillary area slanting upwards hitting the left lobe of
the lung" is located below the left armpit. The second stab wound,
"stab wound right lateral side of the neck 1 1/2 inches in width, 1 1/2
in depth," is located at the right side of the nec[k] at the back. The
doctor stated that the wounds were caused possibly by a dagger.
Finally, it is well to quote the statement uttered by Fernando Abaoag
in the presence of Felicitas Abaoag, to wit: "naalaak, which means, I
was hit, take note of this because I cannot survive these injuries of
mine". Fernando Abaoag told Felicitas Abaoag, Felipe Sion, Miguel
 Disu, Idong Sion, Johnny Juguilon and Felix Sion stabbed him. (2-12
tsn July 27, 1992). This is a dying declaration because it was made
under a consciousness of impending death (Section 37, Rule 130,
Rules of Court). 26
The trial court likewise found that conspiracy was duly established by the
prosecution, thus:
As stated in the decision, accused Johnny Juguilon threw stone,
hitting the left eyebrow of Fernando Abaoag, and Edong Sion, Felix
Sion and Federico (Miguel) Disu simultaneously threw stones upon
the deceased, while accused Felipe Sion alias "Junior" stabbed him
(victim) three times, resulting in the latter's death.27
It then appreciated against appellants (a) the qualifying circumstance of
treachery because the "attack was so sudden that the victim had no time to
defend himself" and (b) the generic aggravating circumstance of cruelty
because "there were three stab wounds" and the first wound — which
"caused severe bleeding and collapse of the lung" and the death of Fernando
Abaoag — "was deliberately augmented by inflicting the other wounds which
are unnecessary for its commission."28 It did not, however, appreciate evident
premeditation for lack of "substantial" evidence;29 nor give the benefit of
voluntary surrender in favor of appellant Sion since his surrender was merely
"forced by circumstances," as he "presented himself to Kagawad Lagman
because he was suspected as one of the persons who stabbed the victim." 30
Appellants, through counsel, seasonably filed their Notice of Appeal. 31
In their eight-page Appellant's Brief, filed by counsel de oficio Atty. Iris L.
Bonifacio,32 appellants plead for their acquittal, contending that the trial court
erred: (1) in convicting them of murder; (2) in taking into account the
aggravating circumstance of cruelty; (3) in ruling that conspiracy was
established; (4) in not appreciating the presence of voluntary surrender; and
(5) in disregarding the defense of appellant Sion that it was Edong Sion and
Johnny Juguilon who were responsible for the death of Fernando Abaoag.
In support of their first assigned error, appellants attack the identification
made of them by prosecution witnesses. They claim that if witness Cesar
Abaoag actually saw appellant Sion stab the victim, then Cesar should have
immediately informed Felicitas Abaoag, the victim's wife, of this fact. Cesar's
failure was then unusual and unnatural. Then, too, Felicitas Abaoag's
testimony on her husband's alleged dying declaration was "not specific" as
far as the assailant's identities were concerned because the victim merely
said "naalaak" ("I was hit"), without identifying appellant Sion as the one who
stabbed him; and, her claim that her husband identified all the five (5)
accused as the ones who "stabbed" him was "an impossibility." Moreover,
the prosecution witnesses were limited to relatives of the victims; "other vital
witnesses" — such as Marta Soriano, Loly Galdones, or Eling Alcantara —
should have been presented to corroborate the "biased" testimonies of Cesar
and Felicitas Abaoag.
Appellants further contend that: (1) there was no treachery since the stabbing
of the victim was not "sudden"; (2) cruelty was not proven because "there is
no clear testimony" that the first stab wound was fatal and the second and
third wounds were "unnecessary"; (3) conspiracy cannot be deduced from
the mere fact that all the accused threw stones at the victim before the
stabbing; (4) appellant Sion voluntarily surrendered even before the police
started investigating the case when he was not yet a suspect; and (5)
appellant Sion could not have testified that it was Edong Sion and Johnny
Juguilon who stabbed the victim if such were not true, considering that the
former is his brother and the latter his barriomate; and (6) appellant Sion bore
no grudge against the victim and did not escape.
On the other hand, the Office of the Solicitor General, in its Brief for the
Appellee, supports the trial court's findings and conclusions, except as to the
appreciation of cruelty, which it concedes to be erroneous.
Our careful review of the record of the evidence adduced by the parties
convinces us that prosecution witness Cesar Abaoag positively identified
appellants as being present during the incident in question and saw appellant
Sion stab the victim thrice. As correctly found by the trial court:
Cesar Abaoag could not be mistaken in the identification because he
was two meters away when he saw the accused Felipe Sion stab his
brother, and, moreover, there was a light illuminating the place of the
incident coming from the houses of Marta Soriano and Loly
Caldones. Cesar Abaoag identified the dagger (Exhibit D).
Cesar Abaoag also saw the rest of the accused, including appellant Disu,
throwing stones at the victim. He was definite, however, that it was only
accused Johnny Juguilon who was able to hit the victim at the left eyebrow.
The three stab wounds inflicted by appellant Sion and the injury at the left
eyebrow caused by the stone thrown by Juguilon jibed with the post
mortem findings of Dr. Manalo as he described the injury on the left eyebrow
as "contusion superimposed abrasion left eyebrow." 33 If Cesar had any
ulterior motive to testify against appellant Disu, he could have declared that it
was Disu, and not Juguilon, who hit the victim with a stone. Cesar then
honestly narrated what he observed.
That Cesar did not at once inform Felicitas Abaoag that it was appellant Sion A He said he was stabbed and he was injured.
who stabbed her husband, was not proof, as appellants suggest, that Cesar
was absent from the crime when it was committed. Cesar's presence was Q What do you mean by word "naalaak"?
admitted by appellant Sion himself on direct examination, thus:
A I was hit.
Q Did you see Cesar Abaoag on that occasion
anywhere near Fernando Abaoag when you said he COURT:
was stabbed by Johnny Juguilon and Idong Sion?
Proceed.
A Yes, sir. 34
PROSECUTOR DUMLAO:
Furthermore, Cesar satisfactorily explained his failure to forthwith inform
Felicitas of this fact. At that time, Cesar himself was running away from the
accused who had hit him with a stone. His pressing concern then was to get Q Do you know the reason why he was hit?
someone to help his wounded brother; besides, he was scared of accused
Felix Sion, uncle of appellant Sion, who was a "notorious" character in their A What I understand is that in the course of his
neighborhood.35 It is settled that delay in divulging the name of the pacifying the trouble between his nephew and the
perpetrator of a crime, if sufficiently explained, does not impair the credibility rest, he was stabbed, sir.
of the witness nor destroy its probative value. 36 In any event, in his sworn
statement37 which was submitted on 22 October 1991 before Judge Sergio Q Aside from the statement of your husband
Garcia, he narrated what he had witnessed and mentioned appellants Sion Fernando Abaoag that he was hit, what else did he
and Disu as among the perpetrators of the crime. say, if you know?

The identifications of appellants and their co-accused were further bolstered A He said, take note of this because I know I cannot
by the declaration made by the victim to his wife, Felicitas Abaoag. The trial survive with these injuries of mine.
court correctly characterized this as a "dying declaration,"38 having been
made under the consciousness of impending death. The victim was already COURT:
weak his wife saw him and he knew that he would not survive the injuries he
sustained; he even died a few minutes later while on the way to the
Q What else did he tell you aside from that?
hospital.39 When Felicitas saw her husband, he told her what had happened
to him, who caused his injuries and that he did not expect to live, thus:
A He said, remember that in case I cannot survive
with the injuries that I sustained, the men who
Q What happened next after that when you met your
stabbed me are Felipe Sion, Miguel Disu, Idong
husband?
Sion, Johnny Juguilon and Felix Sion,
sir.  40 (emphasis supplied)
A Immediately asked him what happened to him.
We find these statements given by the victim to his wife to have met the
Q And what was the answer of Fernando Abaoag? requisites of a dying declaration under Section 37 of Rule 130 of the Rules of
Court, viz: (a) death is imminent and the declarant was conscious of that fact;
A He said, "naalaak," which means, I was hit. (b) the preliminary facts which bring the declaration within its scope must be
made to appear; (c) the declaration relates to the facts or circumstances
COURT: pertaining to the fatal injury or death; and (d) the declarant would have been
competent to testify had he survived. 41 Dying declarations are admissible in
Q Did you ask him why he said "naalaak"? evidence as an exception to the hearsay rule because
of necessity and trustworthiness. Necessity, because the declarant's death
renders impossible his taking the witness stand, and it often happens that
there is no other equally satisfactory proof of the crime; and trustworthiness,
for it is "made in extremity, when the party is at the point of death and every
hope of this world is gone; when every motive to falsehood is silenced, and
the mind is induced by the most powerful consideration to speak the
truth.42 We find no ulterior motive on the part of Felicitas to fabricate the
declarations of her husband.
We likewise find to be without basis appellants' claim that all the prosecution
witnesses were biased due to their relation to the victim's family. Plainly,
witnesses Imuslan (the barangay captain) and Dr. Manalo were not related to
the victim, while the relationship of witnesses Cesar Abaoag and Felicitas
Abaoag to the victim, as brother and wife, respectively, neither disqualified
them as witnesses nor rendered their testimony unworthy of belief. It is not to
be lightly supposed that relatives of the deceased would callously violate
their conscience to avenge the death of a dear one by blaming it on persons
whom they believe to be innocent thereof. 43 A witness' relationship to a
victim, far from rendering his testimony biased, would even render the same
more credible as it would be unnatural for a relative who is interested in
vindicating the crime to accuse somebody other than the real culprit. 44
Neither was the failure of the prosecution to present other witnesses, such as
those mentioned by the appellants, fatal to the cause of the People. It is well-
settled that the decision as whom to present as witnesses for the prosecution
is addressed to the sound discretion of the prosecutor handling the case and
the non-presentation of certain witnesses by the prosecution is not a
plausible defense.45 The prosecution is not obliged to present all possible
witnesses, especially if their testimony will only serve to corroborate that of
another eyewitness' testimony, in which case the former may every well be
dispensed with considering that the testimony of a single witness, if credible
and positive to prove the guilt of the accused beyond reasonable doubt,
would suffice.46
The trial court correctly rejected appellant Sion's defense that it was not he
who stabbed the victim, but his brother Edong Sion and Johnny Juguilon,
both of whom fled after the incident. Constituting a mere denial of Cesar
Abaoag's positive testimony that it was appellant Sion who stabbed the
victim, such must fail in light of the settled rule of evidence that positive
testimony is stronger that negative testimony. 47 Moreover, the claim was
made rather late in the day, casting serious doubt as to its veracity. From the
time that appellant Sion presented himself to Kagawad Lagman and the
police authorities on 17 October 1991, and during his subsequent
incarceration, he never told anyone nor made any statement that he was not
one who stabbed the victim; he did not even so inform his close relatives, not
even his wife who visited him in jail. 48 Also, during the preliminary
investigation, when he had the opportunity to submit counter-affidavits and
other evidence to refute the charges, he did not care to dispute the
statements of Felicitas and Cesar Abaoag identifying him and detailing his
participation in the crime. 49 He raised this claim for the first time only during
his testimony in court almost one (1) year after the stabbing incident and his
initial surrender, and notably, only after the hope of apprehending Idong Sion
and Johnny Juguilon, together with the other accused, already seemed
remote. Such failure to immediately disclose the information as soon as he
was implicated in the crime and his prolonged silence on a vital matter hardly
inspire belief, being unnatural and inconsistent with ordinary habits of men
and common experience.
That appellant Sion did not flee, unlike his brother Edong and Johnny
Juguilon, neither proved his innocence. Non-flight — unlike flight of an
accused which validly serves as a badge of guilt — is simply inaction which
may be due to several factors; hence, it should not be construed as an
indication of innocence.50
Appellant Sion's claim of lack of ill-feeling or grudge against Fernando
Abaoag was belied and contradicted by his admission in court that just before
the stabbing of the victim, he and his co-accused hurled stones at and fought
with the Abaoags, including Fernando, whom he blamed for allegedly stoning
his house. 51 It is also belied by his actuation and utterance made earlier in
the evening of 16 October 1991 when Fernando Abaoag interfered in the
quarrel between appellant Sion and Fernando's nephew, Ronnie Manuel,
which prompted appellant Sion and Johnny Juguilon to curse and warn
Fernando, thus: "even you Andong [Fernando Abaoag] you are interfering,
you are siding with your nephew Ronnie Manuel, you have also your
day . . . . you Abaoags."52 Appellant Sion also admitted that he "had an ill-
feeling towards" Ronnie Manuel, the victim's nephew, because "he was
making trouble" inside his jeepney "5 days before the incident."53
In light of the positive identification of appellants, appellant Disu's alibi must
fail.
It is settled that alibi is a weak defense for it is easy to concoct and fabricate;
it cannot prevail over and is worthless in the face of the positive identification
by credible witnesses that an accused perpetrated the crime. 54 We are
unable to discern any plausible reason, and appellant Disu does not offer
any, why he should be falsely implicated by Cesar Abaoag and mentioned in
the victim's dying declaration as one of the victim' assailants, if appellant Disu
was not actually present during the incident and had no participation in the
commission of the crime. As to his motive or lack thereof, appellant Disu
claims that he had no misunderstanding with Fernando Abaoag or his
family.55 However, Felipe Sion, Jr., disclosed that appellant Disu was close to
the Sion clan, which explains why appellant Disu sympathized with and
joined the Sions and Juguilon in assaulting the victim: Federico Disu was
Sion Jr.'s jeepney conductor for five (5) months, the latter teaching the former
how to drive for three (3) months; and when Disu became a driver himself,
they had the same route and saw each other every day at the
poblacion.56 Disu even admitted that on 16 October 1991, after 5:00 p.m., he
"dropped by" the house of Felipe Sion, which he often did before. 57
We now rule on the presence or absence of conspiracy. There is conspiracy
when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. 58 Direct proof of a previous
agreement to commit a crime is not necessary; it may be deduced from the
mode and manner in which the offense was perpetrated, or inferred from acts
of the accused themselves when such point to a joint purpose design,
concerted action and community of interest.59 Once conspiracy is
established, the act of one is the act of all.60
In this case, appellants and the other accused were already at the barangay
road of Binday, near the houses of Lolly Galdones and Marta Soriano, when
Fernando Abaoag, who was looking for the persons who just stoned his
house several times, and Cesar Abaoag, arrived. Immediately, Johnny
Juguilon threw a stone at Fernando hitting him on the left eyebrow; then,
Edong, and Felix Sion and appellant Disu, "simultaneously" threw stones,
also at Fernando. As Fernando turned away from his assailants, appellant
Sion "rushed" and stabbed the victim three (3) times, even as the latter
raised his arms saying, "I will not fight back." When Cesar Abaoag tried to
help his brother Fernando, appellant Disu threw and hit Cesar with a stone.
Appellant Sion then commanded his companions to also kill Cesar,
prompting the latter to run away. Then the assailants fled, leaving behind a
small bolo and a dagger. The confluence of their acts indubitably manifested
a community of interest and unity of purpose and design to take Fernando
Abaoag's life.
We also find to be unsupported by evidence appellant's claim, through the
testimony of appellant Sion, that the fatal stabbing of Fernando Abaoag was
a result of a "free-for-all rumble," thereby possibly tempering their liability to
that of causing death in a tumultuous affray under Article 251 of the Revised
Penal Code, which carries a penalty lower than that for homicide. 61 In this
case, it was ascertained beyond doubt that appellant Sion inflicted the fatal
stab wounds; hence, this claim must be rejected.
Having resolved appellants' liability for Fernando Abaoag's death, we now
rule on the circumstances attendant to the commission of the crime.
In convicting appellants of murder, the trial court considered the qualifying
circumstance of treachery, and disregarded the qualifying circumstance of
evident premeditation, which was likewise alleged in the information. We
agree as to the latter as the prosecution failed to prove the essential
elements of evident premeditation, viz: (a) the time when appellants
determined to commit the crime; (b) an act manifestly indicating that they
clung to their determination; and (c) a sufficient lapse of time between such
determination and execution to allow them to reflect upon the consequences
of their act.62
We disagree, however, with the trial court's finding as regards the qualifying
circumstance of treachery. Under the law, there is treachery when the
offender commits any of the crimes against the person, employing means,
methods, or forms in the execution thereof which tend directly or specifically
to ensure its execution, without risk to himself arising from the defense which
the offended party might make. 63 We find no clear and convincing evidence
of treachery. Cesar Abaoag's testimony as to how his brother was attacked
lacks sufficient detail showing conclusively that the mode and manner of the
assault rendered the victim entirely defenseless. He merely testified that
when he and his brother proceeded west of the barangay road of Binday, he
saw Johnny Juguilon stone his brother and hit him on the left eyebrow.
Fernando Abaoag then turned to the left with his back towards Felix Sion,
Edong Sion, Miguel Disu and the four (4) other unidentified companions, who
then "simultaneously" threw stones at Fernando. "Seconds later," Cesar saw
appellant Sion holding a very sharp double bladed dagger and stab his
brother three (3) times; Fernando Abaoag, when stabbed, "was just standing
and said 'I will not fight.'"64 They were six (6) meters away from Johnny
Juguilon when the latter first hurled a stone at Fernando which signaled the
other accused to the same.65
Considering therefore the distance between the assailants and the victim
when the attack commenced, and the fact the three were two (2) waves of
stoning which preceded the stabbing of the victim, these should have
sufficiently forewarned him of the greater danger which loomed and
prompted him to escape. Moreover, in light of the absence of clear details
showing conclusively that the stabbing was inflicted from behind or the victim
was entirely helpless when stabbed, we are not prepared to conclude that the
attack was "so sudden and unexpected" as to render the victim entirely
defenseless. Treachery cannot qualify the killing to murder when the victim
was forewarned of the attack by the assailant, or when the attack was frontal,
or the attack was not so sudden as to have caught the deceased completely
unaware.66 Furthermore, the evidence does not disclose that the means of
execution were deliberately or consciously adopted by appellants.
Absent then of any qualifying circumstance, the crime committed was
homicide as defined and penalized under Article 249 of the Revised Penal
Code.
The trial court likewise erred in appreciating against appellants the generic
aggravating circumstance of cruelty,67 based solely on the fact that the victim
was stabbed thrice, with the first stab wound hitting the lower left lung
causing severe bleeding and its collapse. In fact, appellee concedes this
error of the trial court. Cruelty cannot be appreciated in absence of any
showing that appellants, for their pleasure and satisfaction, caused the victim
to suffer slowly and painfully and inflicted on him unnecessary physical and
moral pain; and, the mere fact that wounds in excess of what was
indispensably necessary to cause death were found on the body of the victim
does not necessarily imply that such wounds were inflicted with cruelty and
with the intention of deliberately intensifying the victim's suffering. 68 In the
instant case, the evidence only shows that the three (3) stab wounds were
delivered in succession, nothing more.
We agree with appellants that appellant Sion is entitled to the benefit of the
mitigating circumstance of voluntary surrender, which requires that "the
offender voluntarily surrendered himself to a person in authority." 69 Its
requisites are: (a) the offender had not been actually arrested; (b) the
offender surrendered himself to a person in authority or to the latter's agent;
and (c) the surrender was voluntary. 70 For a surrender to be voluntary, it must
be spontaneous and show the intent of the accused to submit himself
unconditionally to the authorities, either: (1) because he acknowledges his
guilt; or (2) because he wishes to save them the trouble and expense
incidental to his search and capture.71
As shown by the records, in the afternoon of 17 October 1991, appellant Sion
"presented" himself to Kagawad Modesto Lagman who, in turn, "escorted
and surrendered" him to the police in the poblacion. 72 His admission that he
surrendered because he was already suspected as one of the perpetrators of
the crime does not make his surrender "forced by circumstances" as ruled by
the trial court. His arrest at that time was neither imminent nor inevitable. At
the time of his surrender, no warrant of arrest against him had yet been
issued, the same having been issued only on 19 November 1991. 73 In fact,
he was released from custody after a few days, and was ordered committed
to jail only sometime in June 1992, after his motion for bail was denied by the
trial court on 10 June 1992 and was thus taken into custody. 74 This
subsequent fact should not diminish nor erase the favorable effect of Felipe
Sion Jr.'s voluntary surrender on 17 October 1991. As has been held,
whatever the accused's reason for surrendering — either the fear of reprisal
from victim's relatives or, in this case, his knowledge that he was already a
suspect — "does not gainsay the spontaneity of the surrender, nor alter the
fact that by giving himself up, he saved the State the time and trouble of
searching for him until arrested."75
We disagree with Appellee's submission that there was no voluntary
surrender because appellant Sion surrender to a mere barangay "Kagawad"
or Sangguniang Barangay member, and not to the police authorities, implying
that the former is not a person in authority. 76 This ignores Section 388 of the
Local Government Code of 1991 which expressly provides, in part, that "[f]or
purposes of the Revised Penal Code, the punong barangay, sangguniang
barangay members, and members of the lupong tagapamayapa in each
barangay shall be deemed as persons in authority in their
jurisdictions . . . ."77 This law expands the definition of a person in authority
under the Revised Penal Code, wherein among the barangay officials, only
the barangay captain or chairman, now called Punong Barangay, is
expressly considered a person in authority, as provided in Article 152 thereof.
Thus, in addition to the Punong Barangay, the members of the Sangguniang
Barangay, or Kagawads, and members of the Lupong Tagapayapa are now
considered not merely as agents of, but as persons, in authority. 78
WHEREFORE, the challenged decision of Branch 44 (Dagupan City) of the
Regional Trial Court of the First Judicial Region in Criminal Case No. D-
10796 is MODIFIED. As modified, appellants FELIFE SION, alias "JUNIOR"
or FELIFE RODRIGUEZ, JR., and FEDERICO DISU, alias "MIGUEL," are
hereby declared GUILTY beyond reasonable doubt, as principals, of the
crime of HOMICIDE as defined and penalized in Article 249 of the Revised
Penal Code, with the former entitled to the mitigating circumstance of
voluntary surrender, and applying the Indeterminate Sentence Law, they are
sentenced, respectively, to suffer an indeterminate penalty ranging from eight
(8) years of  prison mayor minimum, as minimum, to fourteen (14) years and
eight (8) months of reclusion temporal as maximum, and an indeterminate
penalty ranging from ten (10) years and one (1) day of  prision
mayor maximum, as minimum, to seventeen (17) years, four (4) months and
one (1) day of reclusion temporal minimum as maximum, with all the
accessory penalties therefor, and subject to the provision of Article 29 of the
Revised Penal Code. Except as so modified, the rest of the challenged
judgment stands.
Costs against accused-appellants.
SO ORDERED.
Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC
 
G.R. No. 107383 December 7, 1994
FELIX NIZURTADO, petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.
Melquiades P. De Leon for petitioner.
Eugene C. Paras collaborating counsel for the petitioner.

VITUG, J.:

An information, accusing Felix Nizurtado of having committed the complex

crime of malversation of public funds through falsification of public document,
reads:

That on or about August 25, 1983, and for sometime prior or

subsequent thereto, in the City of Caloocan, Philippines and
within the jurisdiction of this Honorable Court, the
abovenamed accused, a public officer, being then the
Barangay Captain of Panghulo, Malabon, Metro Manila, did
then and there, willfully, unlawfully and feloniously falsify and
attest Resolution No. 17 Series of 1983 by making it appear
that on August 25, 1983 the Barangay council of Panghulo
met and identified T-shirt manufacturing as its livelihood
project, when in truth and in fact, as the accused fully well
knew, no such meeting was held, where T-shirt
manufacturing was identified and approved by the Barangay
Council as its livelihood project, and thereafter, accused
submitted the falsified resolution to the MHS-MMC-KKK
Secretariat which endorsed the same to the Land Bank of
the Philippines, which on the basis of said endorsement and
the falsified resolution, encashed LBP check No. 184792 in
the amount of TEN THOUSAND PESOS (P10,000.00),
which check was earlier received by him as Barangay
Captain of Panghulo in trust for the Barangay for its
livelihood project and for which fund accused became
accountable, and upon receipt thereof herein accused, with
deliberate intent and grave abuse of confidence did then and
 there willfully, unlawfully and feloniously misappropriate,
misapply and convert to his own personal use and benefit
the amount of TEN THOUSAND PESOS (P10,000.00) out of
the funds for which he was accountable, to the damage and
prejudice of the government in the said amount.
CONTRARY TO LAW. 1
When arraigned by the Sandiganbayan, Nizurtado pleaded "not guilty" to the
charge. During the pre-trial, held on 17 July 1989, the prosecution and the
defense stipulated thusly:
1. That sometime in 1983 and 1984, accused Felix Nizurtado
was the Barangay Captain of Barangay Panghulo of
Malabon, Metro Manila and discharged his functions as
such;
2. That sometime in 1983, the Ministry of Human
Settlements, the Metro Manila Commission and Kilusang
Kabuhayan at Kaunlaran (KKK) undertook a Livelihood
Program for Barangays in Metro Manila consisting of loans in
the amount of P10, 000.00 per barangay.
3. That as Barangay Captain of Barangay Panghulo,
accused received a check in the amount of P10,000.00 for
said barangay's livelihood program;
4. That the check, to be encashed, had to be supported by a
project proposal to be approved by the KKK;
5. That the accused encashed the check received by him in
the amount of P10,000.00 with the Land Bank of the
Philippines; and
6. That the accused distributed the amount of P10,000.00 in
the form of loans of P1,000.00 each to members of the
barangay council. 2
After evaluating the evidence adduced, the Sandiganbayan came out with its
factual findings and conclusions, hereunder detailed:
It appears from the evidence, testimonial and documentary,
as well as from the stipulations of the parties that accused
Felix V. Nizurtado was the Barangay Captain of Barangay
Panghulo, Malabon, Metro Manila from 1983 to 1988.
In April or May 1983, Nizurtado and Manuel P. Romero,
Barangay Treasurer of Panghulo, attended a seminar at the
University of Life, Pasig, Metro Manila. The seminar was
about the Barangay Livelihood Program of the Ministry of
Human Settlements (MHS), the Metro Manila Commission
(MMC), and the Kilusang Kabuhayan at Kaunlaran (KKK).
Under the program, the barangays in Metro Manila could
avail of loans of P10,000.00 per barangay to finance viable
livelihood projects which the Barangay Councils would
identify from the modules developed by the KKK Secretariat
or which, in the absence of such modules, the Councils
would choose subject to the evaluation/validation of the
Secretariat.
After the seminar, Nizurtado received a check for
P10,000.00 intended for Barangay Panghulo and issued in
his name. The check, however, could be encashed only
upon submission to the Secretariat of a resolution approved
by the Barangay Council identifying the livelihood project in
which the loan would be invested. He entrusted the check to
Romero for safekeeping.
In one of its regular sessions, which was on the second
Saturday of each month, the Barangay Council of Panghulo
discussed the project in which to invest the P10,000.00.
Among the proposals was that of Romero that a barangay
service center be established. But the meeting ended without
the Councilmen agreeing on any livelihood project.
A few days after the meeting, Nizurtado got back the check
from Romero, saying that he would return it because, as
admitted by Nizurtado during the trial, the Councilmen could
not agree on any livelihood project. Nizurtado signed a
receipt dated August 4, 1983, for the check "to be returned to
the Metro Manila Commission."
After a few more days, Nizurtado asked Romero to sign an
unaccomplished resolution in mimeograph form. All the blank
spaces in the form were unfilled-up, except those at the
bottom which were intended for the names of the Barangay
Councilmen, Secretary, and Captain, which were already
filled-up and signed by Councilmen Marcelo Sandel, Jose
Bautista, Alfredo Aguilar, Alfredo Dalmacio, F.A. Manalang
(the alleged Barangay Secretary), and Nizurtado. In asking
Romero to sign, Nizurtado said that the MMC was hurrying
up the matter and that the livelihood project to be stated in
the resolution was that proposed by Romero — barangay
service center. Trusting Nizurtado, Romero affixed his
signature above his typewritten name. When he did so, the
blank resolution did not yet bear the signatures of
Councilmen Santos Gomez and Ceferino Roldan.
The blank resolution having already been signed by Romero,
Nizurtado asked him to talk with Gomez and secure the
latter's signature. Romero obliged and upon his pleading that
his proposed barangay service center would be the one
written in the blank resolution, Gomez signed. But before he
returned the resolution, he had it machine copied. The
machine copy is now marked Exhibit J.
Unknown to Romero and Gomez, the blank but signed
resolution was later on accomplished by writing in the blank
space below the paragraph reading:
WHEREAS, the Barangay Council now in
this session had already identified one
livelihood project with the following title and
description:
the following:
Title : T-shirt Manufacturing
Description : Manufacture of
round neck T-shirts of
various sizes and colors.
The other blank spaces in the resolution were also filled-up.
Thus "Panghulo," "Brgy. Hall," and "August 25, 1983" were
typewritten in the spaces for the name of the Barangay, the
place where and the date when the council meeting took
place, respectively. In the blank spaces for the names of the
members of the Council who attended the meeting were
typewritten the names of
Felix Nizurtado Barangay Captain
Marcelo Sandel Barangay Councilman
Alfredo Aguilar Barangay Councilman
Santos Gomez Barangay Councilman
Jose Bautista Barangay Councilman
Alfredo Dalmacio Barangay Councilman
Ceferino Roldan Barangay Councilman
The word "none" was inserted in the space intended for the
names of the Councilmen who did not attend. The resolution
was given the number "17" series of "1983." Finally, the last
line before the names and signatures of the Councilmen was
completed by typewriting the date so that it now reads:
UNANIMOUSLY APPROVED this 25th day
of August, 1983.
The resolution as fully accomplished is now marked Exhibit
D.
Other supporting documents for the encashment of the
check of P10,000.00 were also prepared, signed, and filed
by Nizurtado. They were: Project Identification (Exhibit B),
Project Application in which the borrower was stated to be
Samahang Kabuhayan ng Panghulo (Exhibit C and C-1),
Project Location Map (Exhibit E), and Promissory Note
(Exhibit F).
The application for loan having been approved, the
Promissory Note (Exhibit F) was re-dated from August to
October 18, 1983, placed in the name of the Samahang
Kabuhayan ng Panghulo represented by Nizurtado, and
made payable in two equal yearly amortizations of P5,000.00
each from its date. The purpose of the loan was stated to be
T-Shirt Manufacturing of round neck shirts of various sizes
and colors.
Nizurtado encashed the check on the same day, October 18,
1983, and re-lent the cash proceeds to himself, Sandel,
Aguilar, Bautista, Dalmacio, and Roldan at P1,000.00, and to
Manalang and Oro Soledad, Barangay Court Secretary and
Barangay Secretary, respectively, at P500.00 each.
On April 25, 1984, Nizurtado who was then on leave wrote
Sandel, then acting Barangay Captain, informing him that
per record, he, Romero, and Gomez had not made any
remittance for the account of their P1,000.00 loans from the
barangay livelihood fund of P10,000.00 and advising him to
collect, through the Secretary or Treasurer.
Since Romero and Gomez had not borrowed any amount
from the said fund, they told Sandel to ask Nizurtado if he
had any proof of their alleged loans. So Sandel wrote
Nizurtado on May 2, 1984, but the latter did not answer.
This attempt to collect from Romero and Gomez prompted
them to make inquiries. They learned that the check for
P10,000.00 was indeed encashed by Nizurtado and that the
blank resolution which they had signed was filled-up to make
it appear that in a Council meeting where all councilmen
were present on August 25, 1983, T-shirt manufacturing was
adopted as the livelihood project of Panghulo. But no such
meeting occurred on that day or on any other day. Neither
was Nizurtado authorized by the Council to submit T-shirt
Manufacturing as the livelihood project of Panghulo.
On August 9, 1984, Romero and Gomez lodged their
complaint against Nizurtado with the Office of the
Tanodbayan. After due preliminary investigation, this case
was filed.
As of September 7, 1984, the members of the Council who
had received P1,000.00 each, as well as Bacani (also
referred to as Manalang) and Soledad who had received
P500.00 each had paid their respective loans to Nizurtado
who, in turn, remitted the payments to the MMC on these
dates:
April 16, 1984 P1,450.00
August 14, 1984 3,550.00
September 7, 1984
3,000.00
————
Total P8,000.00
In June 1987, after demands for payment, Dalmacio remitted
the balance of P2,000.00 from his pocket because, as acting
Barangay Captain, he did not want to leave the Barangay
with an indebtedness.3
On the basis of its above findings, the Sandiganbayan convicted the accused
of the offense charged. The dispositive portions of its decision, promulgated
on 18 September 1992, read:
WHEREFORE, the Court finds Felix Nizurtado y Victa guilty
beyond reasonable doubt of the complex crime of
malversation of public funds committed through falsification
of public document and, appreciating in his favor . . . two
mitigating circumstances and applying the Indeterminate
Sentence Law, imposes upon him the penalties of
imprisonment ranging from FOUR (4) YEARS, NINE (9)
MONTHS, and ELEVEN (11) DAYS of prision
correccional  as minimum to EIGHT (8) YEARS, EIGHT (8)
MONTHS, and ONE (1) DAY of prision mayor as maximum;
perpetual special disqualification; and a fine of P10,000.00.
No pronouncement is made as to civil liability, there having
been complete restitution of the amount malversed.
With costs.
SO ORDERED.4
His motion for reconsideration having been denied, Nizurtado has filed the
instant petition for review on certiorari. Petitioner faults the Sandiganbayan in
that —
1. It has committed grave abuse of discretion in finding that
Resolution No. 17, dated August 25, 1983, of the Barangay
Council of Panghulo, Malabon, Metro Manila (Exh. "D") is a
falsified document and that the petitioner is the forger
thereof; and
2. It has committed serious error of law and gravely abused
its discretion in finding petitioner guilty of malversation of the
amount of P10,000.00 which he had received as a loan from
the then Metro Manila Commission in his capacity as
representative of the Samahang Kabuhayan ng Barangay
Panghulo, Malabon, Metro Manila. 5
The Solicitor General Agrees in all respects with the Sandiganbayan in its
findings and judgment except insofar as it has found petitioner to have
likewise committed the crime of falsification of a public document.
Article 217 of the Revised Penal Code provides:
 Art. 217. Malversation of public funds or property. —
Presumption of malversation. — Any public officer who, by
reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same, or shall take or
misappropriate or shall consent, or through abandonment or
negligence, shall permit any other person to take such public
funds or property, wholly or partially, or shall otherwise be
guilty the misappropriation or malversation of such funds or
property, shall suffer:
1. The penalty of prision correccional in its medium and
maximum periods, if the amount involved in the
misappropriation or malversation does not exceed two
hundreds pesos.
2. The penalty of prision mayor  in its minimum and medium
periods, if the amount involved is more than two hundred
pesos but does not exceed six thousand pesos.
3. The penalty of  prision mayor  in its maximum period
to reclusion temporal  in its minimum period, if the amount
involved is more than six thousand pesos but is less than
twelve thousand pesos.
4. The penalty of reclusion temporal in its medium and
maximum periods, if the amount involved is more than
twelve thousand pesos but is less than twenty-two thousand
pesos. If the amount exceeds the latter, the penalty shall
be reclusion temporal in its maximum period to reclusion
perpetua.
In all cases, persons guilty of malversation shall also suffer
the penalty of perpetual special disqualification and a fine
equal to the amount of the funds malversed or equal to the
total value of the property embezzled.
The failure of a public officer to have duly forthcoming any
public funds or property with which he is chargeable, upon
demand by any duly authorized officer, shall be  prima
facie evidence that he has put such missing funds or
property to personal use.
The elements of malversation, essential for the conviction of an accused,
under the above penal provisions are that —
(a) the offender is a public officer;
(b) he has the custody or control of funds or property by
reason of the duties of his office;
(c) the funds or property involved are public funds or
property for which he is accountable; and
(d) he has appropriated, taken or misappropriated, or has
consented to, or through abandonment or negligence
permitted, the taking by another person of, such funds or
property.
Nizurtado was a public officer, having been the Barangay Captain of
Panghulo, Malabon, Metro Manila, from 1983 to 1988; in that capacity, he
received and later encashed a check for P10,000.00, specifically intended by
way of a loan to the barangay for its livelihood program; and the funds had
come from the Ministry of Human Settlements, the Metro Manila Commission
and "Kilusang Kabuhayan at Kaunlaran."
The only point of controversy is whether or not Nizurtado has indeed
misappropriated the funds.
Petitioner was able to encash the check on 18 October 1988 on the basis of
a resolution of the Barangay Council, submitted to the KKK Secretariat, to the
effect that a livelihood project, i.e., "T-shirt manufacturing," had already been
identified by the council. The money, however, instead of its being used for
the project, was later lent to, along with petitioner, the members of the
Barangay Council. Undoubtedly, the act constituted "misappropriation" within
the meaning of the law.6
Accused-appellant sought to justify the questioned act in that it was only
when the members of the Barangay Council had realized that P10,000.00
was not enough to support the T-shirt manufacturing project, that they
decided to distribute the money in the form of loans to themselves. He
submitted, in support thereof, a belated 7 certification issued by Rodolfo B.
Banquicio, Chief of District IV of the Support Staff and Malabon Sub-District
Officer of KKK, to the effect that Barangay Captains were given discretionary
authority to invest the money in any viable project not falling within the list of
project modules provided by the MHS-NCR Management. Lending the
unutilized funds to the members of the Barangay council could have hardly
been meant to be the viable project contemplated under that certification.
Furthermore, it would appear that only Regional Action Officer Ismael
Mathay, Jr., and Deputy Regional Action Officer Lilia S. Ledesma were the
officials duly authorized to approve such projects upon the recommendation
of the KKK Secretariat.8 We could see no flaw in the ratiocination of the
Sandiganbayan, when, in rejecting this defense, it said:
The defense evidence that the Barangay Council changed
the T-shirt Manufacturing to whatever business ventures
each members of the Council would select for investment of
his P1,000.00 has, as already stated, little, if any, probative
value.
But assuming there was such a change, the same is of no
avail. The Resolution marked Exhibit D expressly stated that
the P10,000.00 "shall only be appropriated for the purpose/s
as provided in the issued policies and guidelines of the
program." The guidelines, in turn, prescribed that the
livelihood project shall be identified from the modules
developed by the KKK Secretariat or, as stipulated in the
Resolution itself, in the absence of such modules, shall be
chosen by the Samahang Kabuhayan "subject to the
evaluation/validation of the KKK Secretariat." There is
absolutely no showing that the alleged substitute projects
which each lendee of P1,000.00 would select were among
those of the developed modules or were submitted to the
KKK Secretariat for evaluation/validation.9
Accused-appellant criticizes the Sandiganbayan for its having failed to
consider the fact that no valid demand has been made, or could have been
made, for the repayment of the loaned sum. Demand merely raises a  prima
facie  presumption that missing funds have been put to personal use. The
demand itself, however, is not an element of, and not indispensable to
constitute, malversation. Even without a demand, malversation can still be
committed when enough facts, such as here, are extant to prove it. 10
Accused-appellant was charged with having committed the crime through the
falsification of a public document punishable under paragraph 2 of Article 171
of the Revised Penal Code.
The pertinent provisions read:
Art. 171. Falsification by public officer, employee or notary or
ecclesiastic minister. — The penalty of prision mayor  and a
fine not to exceed 5,000 pesos shall be imposed upon any
public officer, employee, or notary who, taking advantage of
his official position, shall falsify a document by committing
any of the following acts:
xxx xxx xxx
2. Causing it to appear that persons have participated in any
act or proceeding when they did not in fact so participate;
In falsification under the above-quoted paragraph, the document
need not be an authentic official paper since its simulation, in fact, is
the essence of falsification. So, also, the signatures appearing
thereon need not necessarily be forged. 11
In concluding that the Barangay Council resolution, Exhibit "D," 12 was a
falsified document for which petitioner should be held responsible, the
Sandiganbayan gave credence to the testimonies of Barangay Councilman
Santos A. Gomez and Barangay Treasurer Manuel P. Romero. The two
testified that no meeting had actually taken place on 25 August 1983, the
date when
"T-shirt manufacturing" was allegedly decided to be the barangay livelihood
project. The Sandiganbayan concluded that Nizurtado had induced Romero
and Gomez to sign the blank resolution, Exhibit "J" 13 on the representation
that Romero's proposal to build a barangay service center would so later be
indicated in that resolution as the barangay livelihood project.
The established rule is that unless the findings of fact of the Sandiganbayan
are bereft of substantial evidence to support it, those findings are binding on
this court.
The Sandiganbayan has considered the mitigating circumstances of
voluntary surrender and restitution in favor of Nizurtado. Deputy Clerk of
Court Luisabel Alfonso Cortez, on 17 January 1989, has certified to the
voluntary surrender of the accused thusly:
CERTIFICATION
THIS CERTIFIES that accused FELIX NIZURTADO in
criminal Case No: 13304 voluntarily surrendered before this
court on JANUARY 17, 1989  and posted his bail bond in
said case.
Manila, Philippines, JANUARY 17, 1989
ABEL
CORTEZ
Deputy
Court  14
Voluntary surrender (Art. 13, par. 7, Revised Penal Code), therefore, may Under the Indeterminate Sentence Law (which can apply since the maximum
thus be treated as a modifying circumstance independent and apart from term of imprisonment would exceed one year), the court is to impose an
restitution of the questioned funds by petitioner (Art. 13, par. 10, Revised indeterminate sentence, the minimum of which shall be anywhere within the
Penal Code). We are convinced, furthermore, that petitioner had no intention range of the penalty next lower in degree (i.e.,  prision correccional in its
to commit so grave a wrong as that committed. (Art. 13, par. 3, Revised medium period to  prision correccional  in its maximum period or anywhere
Penal Code), entitling him to three distinct mitigating circumstances. from two years, four months and one day to six years) and the maximum of
which is that which the law prescribes after considering the attendant
Under Article 48 of the Revised Penal Code, when a single act constitutes modifying circumstances. In view of the mitigating circumstances present in
two or more grave or less grave felonies, or when an offense is a necessary this case, the fine of P10,000.00 may also be reduced (Art. 66, Revised
means for committing the other, the penalty for the most serious crime shall Penal Code) and, since the principal penalty is higher than prision
be imposed, the same (the penalty) to be applied in the maximum period. correccional, subsidiary imprisonment would not be warranted. (Art. 39, par.
The penalty prescribed for the offense of malversation of public funds, when 3, Revised Penal Code).
the amount involved exceeds six thousand pesos but does not exceed
twelve thousand pesos, is  prision mayor in its maximum period to  reclusion The law and the evidence no doubt sustains Nizurtado's conviction. Given all
temporal  in its minimum period; in addition, the offender shall be sentenced the attendant circumstances, it is, nevertheless, the personal and humble
to suffer perpetual special disqualification and to pay a fine equal to the opinion of the assigned writer of this  ponencia that appellant deserves an
amount malversed (Art. 217[3], Revised Penal Code). The penalty of prision executive commutation of the statutory minimum sentence pronounced by
mayor  and a fine of five thousand pesos is prescribed for the crime of this Court.
falsification under Article 171 of the Revised Penal Code. The former (that
imposed for the malversation), being more severe than the latter (that WHEREFORE, the decision of the Sandiganbayan convicting Nizurtado for
imposed for the falsification), is then the applicable prescribed penalty to be malversation of public funds through falsification of public document is
imposed in its maximum period. The actual attendance of two separate AFFIRMED but the sentence, given the circumstances here obtaining, is
mitigating circumstances of voluntary surrender and restitution, also found by MODIFIED by imposing on petitioner a reduced indeterminate sentence
the Sandiganbayan and uncontested by the Solicitor General, entitles the of from  two years, four months and one day to eight years, eight months
accused to the penalty next lower in degree. For purposes of determining and one day, perpetual special disqualification and a fine of P2,000.00.
that next lower degree, the full range of the penalty prescribed by law for the
offense, not merely the imposable penalty because of its complex nature, SO ORDERED.
should, a priori, be considered. It is our considered view that the ruling
in  People vs. Gonzales, 73 Phil. 549, as opposed to that of People vs.
Fulgencio, 92 Phil. 1069, is the correct rule and it is thus here reiterated. In Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo,
fine, the one degree lower than prision mayor  maximum to  reclusion Melo, Quiason, Puno, Kapunan and Mendoza, JJ., concur.
temporal  minimum is prision mayor minimum to prision mayor medium
(being the next two periods in the scale of penalties [see Art. 64, par 5, in Feliciano, J., is on leave.
relation to Art. 61, par 5, Revised Penal Code]) the full range of which is six
years and one day to ten years. This one degree lower penalty should,
conformably with Article 48 of the Code (the penalty for complex crimes), be
imposed in its maximum period or from eight years, eight months and one
day to ten years. The presence of the third mitigating circumstance
of praeter intentionem  (lack of intention to commit so grave a wrong as that
committed) would result in imposing a period the court may deem
applicable.  15  Considering, however, that the penalty has to be imposed in
the maximum period, the only effect of this additional mitigating circumstance
is to impose only the minimum portion of that maximum period,  16 that is,
from eight years, eight months and one day to nine years, six months and
ten days, from which range the maximum of the indeterminate sentence shall
be taken.
 Petitioner Cesario Ursua was a Community Environment and Natural
Resources Officer assigned in Kidapawan, Cotabato. On 9 May 1989 the
Provincial Governor of Cotabato requested the Office of the Ombudsman in
Manila to conduct an investigation on a complaint for bribery, dishonesty,
abuse of authority and giving of unwarranted benefits by petitioner and other
officials of the Department of Environment and Natural Resources. The
complaint was initiated by the Sangguniang Panlalawigan of Cotabato
through a resolution advising the Governor to report the involvement of
petitioner and others in the illegal cutting of mahogany trees and hauling of
illegally-cut logs in the area.2

On 1 August 1989 Atty. Francis Palmones, counsel for petitioner, wrote the
Office of the Ombudsman in Davao City requesting that he be furnished copy
of the complaint against petitioner. Atty. Palmones then asked his client
Ursua to take his letter-request to the Office of the Ombudsman because his
law firm's messenger, Oscar Perez, had to attend to some personal matters.
Before proceeding to the Office of the Ombudsman petitioner talked to Oscar
Perez and told him that he was reluctant to personally ask for the document
since he was one of the respondents before the Ombudsman. However,
Perez advised him not to worry as he could just sign his (Perez) name if ever
he would be required to acknowledge receipt of the complaint. 3

When petitioner arrived at the Office of the Ombudsman in Davao City he

was instructed by the security officer to register in the visitors' logbook.
Republic of the Philippines Instead of writing down his name petitioner wrote the name "Oscar Perez"
SUPREME COURT after which he was told to proceed to the Administrative Division for the copy
Manila of the complaint he needed. He handed the letter of Atty. Palmones to the
Chief of the Administrative Division, Ms. Loida Kahulugan, who then gave
FIRST DIVISION him a copy of the complaint, receipt of which he acknowledged by writing the
name "Oscar Perez."4
 
Before petitioner could leave the premises he was greeted by an
G.R. No. 112170 April 10, 1996 acquaintance, Josefa Amparo, who also worked in the same office. They
conversed for a while then he left. When Loida learned that the person who
CESARIO URSUA, petitioner, introduced himself as "Oscar Perez" was actually petitioner Cesario Ursua, a
vs. customer of Josefa Amparo in her gasoline station, Loida reported the matter
COURT OF APPEALS AND PEOPLE OF THE PHILIPPINES, respondents. to the Deputy Ombudsman who recommended that petitioner be accordingly
charged.
BELLOSILLO, J.:p
On 18 December 1990, after the prosecution had completed the presentation
of its evidence, petitioner without leave of court filed a demurrer to evidence
This is a petition for review of the decision of the Court of Appeals which
alleging that the failure of the prosecution to prove that his
affirmed the conviction of petitioner by the Regional Trial Court of Davao City
supposed alias was different from his registered name in the local civil
for violation of Sec. 1 of C.A. No. 142, as amended by R.A. No. 6085,
registry was fatal to its cause. Petitioner argued that no document from the
otherwise known as "An Act to Regulate the Use of Aliases". 1
local civil registry was presented to show the registered name of accused
which according to him was a condition sine qua non for the validity of his
conviction.
The trial court rejected his contentions and found him guilty of violating Sec.
1 of C.A. No. 142 as amended by R.A. No. 6085. He was sentenced to suffer
a prison term of one (1) year and one (1) day of prision
correccional minimum as minimum, to four (4) years of prision
correccional medium as maximum, with all the accessory penalties provided
for by law, and to pay a fine of P4,000.00 plus costs.
Petitioner appealed to the Court of Appeals.
On 31 May 1993 the Court of Appeals affirmed the conviction of petitioner but
modified the penalty by imposing an indeterminate term of one (1) year as
minimum to three (3) years as maximum and a fine of P5,000.00.
Petitioner now comes to us for review of his conviction as he reasserts his
innocence. He contends that he has not violated C.A. No. 142 as amended
The above law was subsequently amended by R.A. No. 6085, approved on 4
by R.A. No. 6085 as he never used any alias name; neither is "Oscar Perez"
August 1969. As amended, C.A. No. 142 now reads:
his alias. An alias, according to him, is a term which connotes the habitual
use of another name by which a person is also known. He claims that he has
never been known as "Oscar Perez" and that he only used such name on
one occasion and it was with the express consent of Oscar Perez himself. It
is his position that an essential requirement for a conviction under C.A. No.
142 as amended by R.A. No. 6085 has not been complied with when the
prosecution failed to prove that his supposed alias was different from his
registered name in the Registry of Births. He further argues that the Court of
Appeals erred in not considering the defense theory that he was charged
under the wrong law.5
Time and again we have decreed that statutes are to be construed in the light
of the purposes to be achieved and the evils sought to be remedied. Thus in
construing a statute the reason for its enactment should be kept in mind and
the statute should be construed with reference to the intended scope and
purpose.6 The court may consider the spirit and reason of the statute, where
a literal meaning would lead to absurdity, contradiction, injustice, or would
defeat the clear purpose of the lawmakers.7
For a clear understanding of the purpose of C.A. No. 142 as amended, which
was allegedly violated by petitioner, and the surrounding circumstances
under which the law was enacted, the pertinent provisions thereof, its
amendments and related statutes are herein cited. C.A. No. 142, which was
approved on 7 November 1936, and before its amendment by R.A. No. 6085,
is entitled An Act to Regulate the Use of Aliases. It provides as follows:
Sec. 1. Except as a pseudonym for literary purposes, no
person shall use any name different from the one with which
he was christened or by which he has been known since his
childhood, or such substitute name as may have been
authorized by a competent court. The name shall comprise
the patronymic name and one or two surnames.
Sec. 2. Any person desiring to use an alias or aliases shall
apply for authority therefor in proceedings like those legally
provided to obtain judicial authority for a change of name.
Separate proceedings shall be had for each alias, and each
new petition shall set forth the original name and
the alias or aliases for the use of which judicial authority has
been, obtained, specifying the proceedings and the date on
which such authority was granted. Judicial authorities for the
use of aliases shall be recorded in the proper civil
register . . . .
Sec. 1. Except as a pseudonym solely for literary, cinema,
television, radio or other entertainment purposes and in
athletic events where the use of pseudonym is a normally
accepted practice, no person shall use any name different
from the one with which he was registered at birth in the
office of the local civil registry or with which he was baptized
for the first time, or in case of all alien, with which he was
registered in the bureau of immigration upon entry; or such
substitute name as may have been authorized by a
competent court: Provided, That persons whose births have
not been registered in any local civil registry and who have
not been baptized, have one year from the approval of this
act within which to register their names in the civil registry of
their residence. The name shall comprise the patronymic
name and one or two surnames.
Sec. 2. Any person desiring to use an alias shall apply for
authority therefor in proceedings like those legally provided
to obtain judicial authority for a change of name and no
person shall be allowed to secure such judicial authority for
more than one alias. The petition for an alias shall set forth
the person's baptismal and family name and the name
recorded in the civil registry, if different, his immigrant's
name, if an alien, and his pseudonym, if he has such names
other than his original or real name, specifying the reason or
 reasons for the desired alias. The judicial authority for the
use of alias, the Christian name and the alien immigrant's
name shall be recorded in the proper local civil registry, and
no person shall use any name or names other than his
original or real name unless the same is or are duly recorded
in the proper local civil registry.
The objective and purpose of C.A. No. 142 have their origin and basis in Act
No. 3883, An Act to Regulate the Use in Business Transactions of Names
other than True Names, Prescribing the Duties of the Director of the Bureau
of Commerce and Industry in its Enforcement, Providing Penalties for
Violations thereof, and for other purposes, which was approved on 14
November 1931 and amended by Act No. 4147, approved on 28 November
1934.8 The pertinent provisions of Act No. 3883 as amended follow —
Sec. 1. It shall be unlawful for any person to use or sign, on
any written or printed receipt including receipt for tax or
business or any written or printed contract not verified by a
notary public or on any written or printed evidence of any
agreement or business transactions, any name used in
connection with his business other than his true name, or
keep conspicuously exhibited in plain view in or at the place
where his business is conducted, if he is engaged in a
business, any sign announcing a firm name or business
name or style without first registering such other name, or
such firm name, or business name or style in the Bureau of
Commerce together with his true name and that of any other
person having a joint or common interest with him in such
contract, agreement, business transaction, or business . . . .
For a bit of history, the enactment of C.A. No. 142 as amended was made
primarily to curb the common practice among the Chinese of adopting scores
of different names and aliases which created tremendous confusion in the
field of trade. Such a practice almost bordered on the crime of using fictitious
names which for obvious reasons could not be successfully maintained
against the Chinese who, rightly or wrongly, claimed they possessed a
thousand and one names. C.A. No. 142 thus penalized the act of using
an alias name, unless such alias was duly authorized by proper judicial
proceedings and recorded in the civil register.9
In Yu Kheng Chiau v. Republic 10 the Court had occasion to explain the
meaning, concept and ill effects of the use of an alias within the purview of
C.A. No. 142 when we ruled —
There can hardly be any doubt that petitioner's use
of alias "Kheng Chiau Young" in addition to his real name
"Yu Cheng Chiau" would add to more confusion. That he is
known in his business, as manager of the Robert Reid, Inc.,
by the former name, is not sufficient reason to allow him its
use. After all, petitioner admitted that he is known to his
associates by both names. In fact, the Anselmo Trinidad,
Inc., of which he is a customer, knows him by his real name.
Neither would the fact that he had encountered certain
difficulties in his transactions with government offices which
required him to explain why he bore two names, justify the
grant of his petition, for petitioner could easily avoid said
difficulties by simply using and sticking only to his real name
"Yu Kheng Chiau."
The fact that petitioner intends to reside permanently in the
Philippines, as shown by his having filed a petition for
naturalization in Branch V of the above-mentioned court,
argues the more against the grant of his petition, because if
naturalized as a Filipino citizen, there would then be no
necessity for his further using said alias, as it would be
contrary to the usual Filipino way and practice of using only
one name in ordinary as well as business transactions. And,
as the lower court correctly observed, if he believes (after he
is naturalized) that it would be better for him to write his
name following the Occidental method, "he can easily file a
petition for change of name, so that in lieu of the name "Yu
Kheng Chian," he can, abandoning the same, ask for
authority to adopt the name Kheng Chiau Young."
All things considered, we are of the opinion and so hold, that
petitioner has not shown satisfactory proper and reasonable
grounds under the aforequoted provisions of Commonwealth
Act No. 142 and the Rules of Court, to warrant the grant of
his petition for the use of an alias name.
Clearly therefore an alias is a name or names used by a person or intended
to be used by him publicly and habitually usually in business transactions in
addition to his real name by which he is registered at birth or baptized the
first time or substitute name authorized by a competent authority. A man's
name is simply the sound or sounds by which he is commonly designated by
his fellows and by which they distinguish him but sometimes a man is known
by several different names and these are known as aliases. 11 Hence, the use
of a fictitious name or a different name belonging to another person in a
single instance without any sign or indication that the user intends to be
known by this name in addition to his real name from that day forth does not
fall within the prohibition contained in C.A. No. 142 as amended. This is so in
the case at bench.

It is not disputed that petitioner introduced himself in the Office of the

Ombudsman as "Oscar Perez," which was the name of the messenger of his
lawyer who should have brought the letter to that office in the first place
instead of petitioner. He did so while merely serving the request of his lawyer
to obtain a copy of the complaint in which petitioner was a respondent. There
is no question then that "Oscar Perez" is not an alias name of petitioner.
There is no evidence showing that he had used or was intending to use that
name as his second name in addition to his real name. The use of the name
"Oscar Perez" was made by petitioner in an isolated transaction where he
was not even legally required to expose his real identity. For, even if he had
identified himself properly at the Office of the Ombudsman, petitioner would
still be able to get a copy of the complaint as a matter of right, and the Office
of the Ombudsman could not refuse him because the complaint was part of
public records hence open to inspection and examination by anyone under
the proper circumstances.

While the act of petitioner may be covered by other provisions of law, such
does not constitute an offense within the concept of C.A. No. 142 as
amended under which he is prosecuted. The confusion and fraud in business
transactions which the anti-alias law and its related statutes seek to prevent
are not present here as the circumstances are peculiar and distinct from
those contemplated by the legislature in enacting C.A. No. 142 as amended.
There exists a valid presumption that undesirable consequences were never
intended by a legislative measure and that a construction of which the statute
is fairly susceptible is favored, which will avoid all objectionable,
mischievous, indefensible, wrongful, evil and injurious
consequences. 12 Moreover, as C.A. No. 142 is a penal statute, it should be
construed strictly against the State and in favor of the accused. 13 The reason
for this principle is the tenderness of the law for the rights of individuals and
the object is to establish a certain rule by conformity to which mankind would
be safe, and the discretion of the court limited. 14 Indeed, our mind cannot
rest easy on the proposition that petitioner should be convicted on a law that
does not clearly penalize the act done by him.

WHEREFORE, the questioned decision of the Court of Appeals affirming that

of the Regional Trial Court of Davao City is REVERSED and SET ASIDE and
petitioner CESARIO URSUA is ACQUITTED of the crime charged.

SO ORDERED.

Padilla, Vitug, Kapunan and Hermosisima, Jr., JJ., concur.

 BRION, J.:

The People of the Philippines (the People) filed this Petition for Review on
Certiorari1 to seek the reversal of the Sandiganbayan’s Joint Resolution
dated July 12, 2004, granting respondent Joseph Ejercito Estrada’s (Estrada)
demurrer to evidence in Crim. Case No. 26565.2

THE FACTS

On April 4, 2001, an Information for plunder (docketed as Crim. Case No.

26558) was filed with the Sandiganbayan against respondent Estrada,
among other accused. A separate Information for illegal use of alias,
docketed as Crim. Case No. 26565, was likewise filed against Estrada. The
Amended Information in Crim. Case No. 26565 reads:

That on or about 04 February 2000, or sometime prior or subsequent thereto,

in the City of Manila, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, being then President of the Republic of the
Philippines, without having been duly authorized, judicially or
administratively, taking advantage of his position and committing the offense
in relation to office, i.e., in order to CONCEAL THE ill-gotten wealth HE
ACQUIRED during his tenure and his true identity as THE President of the
Republic of the Philippines, did then and there, willfully, unlawfully and
criminally REPRESENT HIMSELF AS ‘JOSE VELARDE’ IN SEVERAL
TRANSACTIONS AND use and employ the SAID alias "Jose Velarde" which
IS neither his registered name at birth nor his baptismal name, in signing
documents with Equitable PCI Bank and/or other corporate entities.

CONTRARY TO LAW.

Crim. Case Nos. 26565 and 26558 were subsequently consolidated for joint
Republic of the Philippines
trial. Still another Information, this time for perjury and docketed as Crim.
SUPREME COURT
Case No. 26905, was filed with the Sandiganbayan against Estrada. This
Manila
was later consolidated, too, with Crim. Cases No. 26558 and 26565.

EN BANC
Estrada was subsequently arrested on the basis of a warrant of arrest that
the Sandiganbayan issued.
G.R. Nos. 164368-69               April 2, 2009
On January 11, 2005, we ordered the creation of a Special Division in the
PEOPLE OF THE PHILIPPINES, Petitioner, Sandiganbayan to try, hear, and decide the charges of plunder and related
vs. cases (illegal use of alias and perjury) against respondent Estrada. 3
JOSEPH EJERCITO ESTRADA and THE HONORABLE SPECIAL
DIVISION OF THE SANDIGANBAYAN, Respondents.
At the trial, the People presented testimonial and documentary evidence to
prove the allegations of the Informations for plunder, illegal use of alias, and
DECISION
perjury. The People’s evidence for the illegal alias charge, as summarized by
the Sandiganbayan, consisted of:
A. The testimonies of Philippine Commercial and Industrial Bank
(PCIB) officers Clarissa G. Ocampo (Ocampo) and Atty. Manuel
Curato (Curato) who commonly declared that on February 4, 2000,
Estrada opened a numbered trust account (Trust Account C-163)
with PCIB and signed as "Jose Velarde" in the account opening
documents; both Ocampo and Curato also testified that Aprodicio
Lacquian and Fernando Chua were present on that occasion;
B. (1) The testimony of PCIB-Greenhills Branch Manager Teresa
Barcelan, who declared that a certain Baby Ortaliza (Ortaliza)
transacted several times with her; that Ortaliza deposited several
checks in PCIB Savings Account No. 0160-62502-5 under the
account name "Jose Velarde" on the following dates (as evidenced
by deposit receipts duly marked in evidence):
a. 20 October 1999 (Exh. "MMMMM")
b. 8 November 1999 (Exh. "LLLLL")
c. 22 November 1999 (Exh. "NNNNN")
d. 24 November 1999 (Exh. "OOOOO")
e. 25 November 1999 (Exh. "PPPPP")
f. 20 December 1999 (Exh. "QQQQQ")
g. 21 December 1999 (Exh. "RRRRR")
h. 29 December 1999 (Exh. "SSSSS")
i. 4 January 2000 (Exh. "TTTTT")
j. 10 May 2000 (Exh. "UUUUU")
k. 6 June 2000 (Exh. "VVVVV")
l. 25 July 2000 (Exh. "WWWWW")
(2) Documents duly identified by witnesses showing that Lucena
Ortaliza was employed in the Office of the Vice President and, later
on, in the Office of the President when Estrada occupied these
positions and when deposits were made to the Jose Velarde Savings
Account No. 0160-62502-5.
The People filed its Formal Offer of Exhibits in the consolidated cases, which
the Sandiganbayan admitted into evidence in a Resolution dated October 13,
2003.4 The accused separately moved to reconsider the Sandiganbayan
Resolution;5 the People, on the other hand, filed its Consolidated
Comment/Opposition to the motions.6 The Sandiganbayan denied the
motions in its Resolution dated November 17, 2003.7
After the People rested in all three cases, the defense moved to be allowed
to file a demurrer to evidence in these cases. 8 In its Joint Resolution dated
March 10, 2004,9 the Sandiganbayan only granted the defense leave to file
demurrers in Crim. Case Nos. 26565 (illegal use of alias) and 26905
(perjury).
Estrada filed separate Demurrers to Evidence for Crim. Case Nos. 26565
and 26905.10 His demurrer to evidence for Crim. Case No. 26565 (illegal use
of alias) was anchored on the following grounds11:
1. Of the thirty-five (35) witnesses presented by the prosecution, only
two (2) witnesses, Ms. Clarissa Ocampo and Atty. Manuel Curato,
testified that on one occasion (4 February 2000), they saw movant
use the name "Jose Velarde";
2. The use of numbered accounts and the like was legal and was
prohibited only in late 2001 as can be gleaned from Bangko Sentral
Circular No. 302, series of 2001, dated 11 October 2001;
3. There is no proof of public and habitual use of alias as the
documents offered by the prosecution are banking documents which,
by their nature, are confidential and cannot be revealed without
following proper procedures; and
4. The use of alias is absorbed in plunder.
The People opposed the demurrers through a Consolidated Opposition that
presented the following arguments:12
1. That the use of fictitious names in bank transaction was not
expressly prohibited until BSP No. 302 is of no moment considering
that as early as Commonwealth Act No. 142, the use of alias was
 already prohibited. Movant is being prosecuted for violation of C.A.
No. 142 and not BSP Circular No. 302;
2. Movant’s reliance on Ursua vs. Court of Appeals (256 SCRA 147
[1996]) is misplaced;
3. Assuming arguendo that C.A. No. 142, as amended, requires
publication of the alias and the habitual use thereof, the prosecution
has presented more than sufficient evidence in this regard to convict
movant for illegal use of alias; and
4. Contrary to the submission of movant, the instant case of illegal
use of alias is not absorbed in plunder.
Estrada replied to the Consolidated Opposition through a Consolidated Reply
Opposition.
THE ASSAILED SANDIGANBAYAN’S RULING
The Sandiganbayan issued on July 12, 2004 the Resolution now assailed in
this petition. The salient points of the assailed resolution are:
First – the coverage of Estrada’s indictment. The Sandiganbayan found that
the only relevant evidence for the indictment are those relating to what is
described in the Information – i.e., the testimonies and documents on the
opening of Trust Account C-163 on February 4, 2000. The Sandiganbayan
reasoned out that the use of the disjunctive "or" between "on or about 04
February 2000" and "sometime prior or subsequent thereto" means that the
act/s allegedly committed on February 4, 2000 could have actually taken
place prior to or subsequent thereto; the use of the conjunctive was simply
the prosecution’s procedural tool to guard against any variance between the
date stated in the Information and that proved during the trial in a situation in
which time was not a material ingredient of the offense; it does not mean and
cannot be read as a roving commission that includes acts and/or events
separate and distinct from those that took place on the single date "on or
about 04 February 2000 or sometime prior or subsequent thereto." The
Sandiganbayan ruled that the use of the disjunctive "or" prevented it from
interpreting the Information any other way.
Second – the People’s failure to present evidence that proved Estrada’s
commission of the offense. The Sandiganbayan found that the People failed
to present evidence that Estrada committed the crime punished under
Commonwealth Act No. 142, as amended by Republic Act (R.A.) No. 6085
(CA 142), as interpreted by the Supreme Court in Ursua v. Court of
Appeals.13 It ruled that there is an illegal use of alias within the context of CA
142 only if the use of the alias is public and habitual. In Estrada’s case, the
Sandiganbayan noted, the application of the principles was not as simple
because of the complications resulting from the nature of the transaction
involved – the alias was used in connection with the opening of a numbered
trust account made during the effectivity of R.A. No. 1405, as
amended,14 and prior to the enactment of Republic R.A. No. 9160. 15
Estrada did not publicly use the alias "Jose Velarde":
a. Estrada’s use of the alias "Jose Velarde" in his dealings with
Dichavez and Ortaliza after February 4, 2000 is not relevant in light
of the conclusion that the acts imputed to Estrada under the
Information were the act/s committed on February 4, 2000 only.
Additionally, the phrase, "Estrada did … represent himself as ‘Jose
Velarde’ in several transactions," standing alone, violates Estrada’s
right to be informed of the nature and the cause of the accusation,
because it is very general and vague. This phrase is qualified and
explained by the succeeding phrase – "and use and employ the said
alias ‘Jose Velarde’" – which "is neither his registered name at birth
nor his baptismal name, in signing documents with Equitable PCI
Bank and/or other corporate entities." Thus, Estrada’s
representations before persons other than those mentioned in the
Information are immaterial; Ortaliza and Dichavez do not fall within
the "Equitable PCI Bank and/or other corporate entities" specified in
the Information. Estrada’s representations with Ortaliza and
Dichavez are not therefore covered by the indictment.
b. The Sandiganbayan rejected the application of the principle in the
law of libel that mere communication to a third person is publicity; it
reasoned out that that the definition of publicity is not limited to the
way it is defined under the law on libel; additionally, the application of
the libel law definition is onerous to the accused and is precluded by
the ruling in Ursua that CA No. 142, as a penal statute, should be
construed strictly against the State and favorably for the accused. It
ruled that the definition under the law on libel, even if it applies,
considers a communication to a third person covered by the
privileged communication rule to be non-actionable. Estrada’s use of
the alias in front of Ocampo and Curato is one such privileged
communication under R.A. No. 1405, as amended. The
Sandiganbayan said:
Movant’s act of signing "Jose Velarde" in bank documents being
absolutely confidential, the witnessing thereof by bank officers who
were likewise sworn to secrecy by the same law cannot be
considered as ‘public’ as to fall within the ambit of CA 142 as
amended. On account of the absolute confidentiality of the
 transaction, it cannot be said that movant intended to be known by
this name in addition to his real name. Confidentiality and secrecy
negate publicity. Ursua instructs:
Hence, the use of a fictitious name or a different name belonging to
another person in a single instance without any sign or indication that
the user intends to be known by this name in addition to his real
name from that day forth does not fall within the prohibition in C.A.
No. 142 as amended.
c. The Sandiganbayan further found that the intention not to be
publicly known by the name "Jose Velarde" is shown by the nature of
a numbered account – a perfectly valid banking transaction at the
time Trust Account C-163 was opened. The opening, too, of a
numbered trust account, the Sandiganbayan further ruled, did not
impose on Estrada the obligation to disclose his real identity – the
obligation R.A. No. 6713 imposes is to file under oath a statement of
assets and liabilities.16 Reading CA No. 142, R.A. No. 1405 and R.A.
No. 6713 together, Estrada had the absolute obligation to disclose
his assets including the amount of his bank deposits, but he was
under no obligation at all to disclose the other particulars of the bank
account (such as the name he used to open it).
Third – the effect of the enactment of R.A. No. 9160.17 The Sandiganbayan
said that the absolute prohibition in R.A. No. 9160 against the use of
anonymous accounts, accounts under fictitious names, and all other similar
accounts, is a legislative acknowledgment that a gaping hole previously
existed in our laws that allowed depositors to hide their true identities. The
Sandiganbayan noted that the prohibition was lifted from Bangko Sentral ng
Pilipinas (BSP) Circular No. 251 dated July 7, 2000 – another confirmation
that the opening of a numbered trust account was perfectly legal when it was
opened on February 4, 2000.
The Sandiganbayan ruled that the provisions of CA No. 142, as interpreted in
Ursua, must necessarily be harmonized with the provisions of R.A. No.1405
and R.A. No. 9160 under the principle that every statute should be construed
in a way that will harmonize it with existing laws. A reasonable scrutiny, the
Sandiganbayan said, of all these laws in relation to the present case, led it to
conclude that the use of an alias within the context of a bank transaction
(specifically, the opening of a numbered account made before bank officers)
is protected by the secrecy provisions of R.A. No. 1405, and is thus outside
the coverage of CA No. 142 until the passage into law of R.A. No. 9160.
THE PETITION
The People filed this petition raising the following issues:
1. Whether the court a quo gravely erred and abused its discretion in
dismissing Crim. Case No. 26565 and in holding that the use by
respondent Joseph Estrada of his alias "Jose Velarde" was not
public despite the presence of Messrs. Aprodicio Laquian and
Fernando Chua on 4 February 2000;
2. Whether the court a quo gravely erred and abused its discretion in
dismissing Crim. Case No. 26565 and in holding that the use by
respondent Joseph Estrada of his alias "Jose Velarde" was allowable
under banking rules, despite the clear prohibition under
Commonwealth Act No. 142;
3. Whether the court a quo gravely erred and abused its discretion in
dismissing Crim. Case No. 26565 and in applying R.A. No. 1405 as
an exception to the illegal use of alias punishable under
Commonwealth Act No. 142;
4. Whether the alleged harmonization and application made by the
court a quo of R.A. No.1405 and Commonwealth Act No. 142 were
proper;
5. Whether the court a quo gravely erred and abused its discretion in
limiting the coverage of the amended Information in Crim. Case No.
26565 to the use of the alias "Jose Velarde" by respondent Joseph
Estrada on February 4, 2000;
6. Whether the court a quo gravely erred and abused its discretion in
departing from its earlier final finding on the non-applicability
of Ursua v. Court of Appeals and forcing its application to the instant
case.
THE COURT’S RULING
The petition has no merit.
The Law on Illegal Use of Alias and the Ursua Ruling
Sections 1 and 2 of CA No. 142, as amended, read:
Section 1. Except as a pseudonym solely for literary, cinema, television, radio
or other entertainment purposes and in athletic events where the use of
pseudonym is a normally accepted practice, no person shall use any name
different from the one with which he was registered at birth in the office of the
local civil registry or with which he was baptized for the first time, or in case
of an alien, with which he was registered in the bureau of immigration upon
entry; or such substitute name as may have been authorized by a competent
court: Provided, That persons whose births have not been registered in any
local civil registry and who have not been baptized, have one year from the
approval of this act within which to register their names in the civil registry of
their residence. The name shall comprise the patronymic name and one or
two surnames.
Section 2. Any person desiring to use an alias shall apply for authority
therefor in proceedings like those legally provided to obtain judicial authority
for a change of name and no person shall be allowed to secure such judicial
authority for more than one alias. The petition for an alias shall set forth the
person's baptismal and family name and the name recorded in the civil
registry, if different, his immigrant's name, if an alien, and his pseudonym, if
he has such names other than his original or real name, specifying the
reason or reasons for the desired alias. The judicial authority for the use of
alias, the Christian name and the alien immigrant's name shall be recorded in
the proper local civil registry, and no person shall use any name or names
other than his original or real name unless the same is or are duly recorded
in the proper local civil registry.
How this law is violated has been answered by the Ursua definition of an
alias – "a name or names used by a person or intended to be used by him
publicly and habitually usually in business transactions in addition to his real
name by which he is registered at birth or baptized the first time or substitute
name authorized by a competent authority." There must be, in the words of
Ursua, a "sign or indication that the user intends to be known by this name
(the alias) in addition to his real name from that day forth … [for the use of
alias to] fall within the prohibition contained in C.A. No. 142 as amended." 18
Ursua further relates the historical background and rationale that led to the
enactment of CA No. 142, as follows:
The enactment of C.A. No. 142 was made primarily to curb the common
practice among the Chinese of adopting scores of different names and
aliases which created tremendous confusion in the field of trade. Such a
practice almost bordered on the crime of using fictitious names which for
obvious reasons could not be successfully maintained against the Chinese
who, rightly or wrongly, claimed they possessed a thousand and one names.
C.A. No. 142 thus penalized the act of using an alias name, unless such alias
was duly authorized by proper judicial proceedings and recorded in the civil
register.19
Following the doctrine of stare decisis, 20 we are guided by the Ursua ruling on
how the crime punished under CA No. 142 may be committed. Close
adherence to this ruling, in other words, is unavoidable in the application of
and the determination of criminal liability under CA No. 142.
Among the many grounds the People invokes to avoid the application of the
Ursua ruling proceeds from Estrada’s position in the government; at the time
of the commission of the offense, he was the President of the Republic who
is required by law to disclose his true name. We do not find this argument
sufficient to justify a distinction between a man on the street, on one hand,
and the President of the Republic, on the other, for purposes of applying CA
No. 142. In the first place, the law does not make any distinction, expressly or
impliedly, that would justify a differential treatment. CA No. 142 as applied to
Estrada, in fact allows him to use his cinema or screen name of Joseph
Estrada, which name he has used even when he was already the President
of the Philippines. Even the petitioner has acquiesced to the use of the
screen name of the accused, as shown by the title of the present petition.
Additionally, any distinction we make based on the People’s claim unduly
prejudices Estrada; this is proscribed by the Ursua dictum that CA No. 142,
as a penal statute, should be construed strictly against the State and in favor
of the accused.21 The mode of violating CA No. 142 is therefore the same
whoever the accused may be.
The People also calls our attention to an earlier Sandiganbayan ruling
(Resolution dated February 6, 2002) denying Estrada’s motion to quash the
Information. This earlier Resolution effectively rejected the application of
Ursua under the following tenor:
The use of the term "alias" in the Amended Information in itself serves to
bring this case outside the ambit of the ruling in the case of Ursua v. Court of
Appeals (256 SCRA 147 [1996]), on which the accused heavily relies in his
motion to quash. The term "alias" means "otherwise known as" (Webster
Third New International Dictionary, 1993 ed., p. 53). The charge of using an
"alias" logically implies that another name has been used publicly and
habitually. Otherwise, he will not be known by such name. In any case, the
amended information adverts to "several transactions" and signing of
documents with the Equitable PCI Bank and/or other corporate entities where
the above-mentioned alias was allegedly employed by the accused.
The facts alleged in the information are distinctly different from facts
established in the Ursua case where another name was used by the accused
in a single instance without any sign or indication that that [sic] he intended to
be known from that day by this name in addition to his real name. 22
The People argues that the Sandiganbayan gravely abused its discretion in
applying Ursua notwithstanding this earlier final ruling on its non-applicability
– a ruling that binds the parties in the present case. The People thus claims
that the Sandiganbayan erred to the point of gravely abusing its discretion
when it resurrected the application of Ursua, resulting in the reversal of its
earlier final ruling.
We find no merit in this argument for two reasons. First, the cited
Sandiganbayan resolution is a mere interlocutory order – a ruling denying a
motion to quash23 – that cannot be given the attributes of finality and
immutability that are generally accorded to judgments or orders that finally
dispose of the whole, of or particular matters in, a case. 24 The
Sandiganbayan resolution is a mere interlocutory order because its effects
would only be provisional in character, and would still require the issuing
court to undertake substantial proceedings in order to put the controversy to
rest.25 It is basic remedial law that an interlocutory order is always under the
control of the court and may be modified or rescinded upon sufficient grounds
shown at any time before final judgment. 26 Perez v. Court of Appeals,27 albeit
a civil case, instructively teaches that an interlocutory order carries no res
adjudicata effects. Says Perez:
The Decision in CA-G.R. No. 10415 having resolved only an interlocutory
matter, the principle of res judicata  cannot be applied in this case. There can
be no res judicata where the previous order in question was not an order or
judgment determinative of an issue of fact pending before the court but was
only an interlocutory order because it required the parties to perform certain
acts for final adjudication. In this case, the lifting of the restraining order
paved the way for the possession of the fishpond on the part of petitioners
and/or their representatives pending the resolution of the main action for
injunction. In other words, the main issue of whether or not private
respondent may be considered a sublessee or a transferee of the lease
entitled to possess the fishpond under the circumstances of the case had yet
to be resolved when the restraining order was lifted. 28
Second, in the earlier motion to quash, the Sandiganbayan solely looked at
the allegations of the Information to determine the sufficiency of these
allegations and did not consider any evidence aliunde. This is far different
from the present demurrer to evidence where the Sandiganbayan had a fuller
view of the prosecution’s case, and was faced with the issue of whether the
prosecution’s evidence was sufficient to prove the allegations of the
Information. Under these differing views, the Sandiganbayan may arrive at a
different conclusion on the application of Ursua, the leading case in the
application of CA 142, and the change in ruling is not per se indicative of
grave abuse of discretion. That there is no error of law is strengthened by our
consideration of the Sandiganbayan ruling on the application of Ursua.
In an exercise of caution given Ursua’s jurisprudential binding effect, the
People also argues in its petition that Estrada’s case is different from Ursua’s
for the following reasons: (1) respondent Estrada used and intended to
continually use the alias "Jose Velarde" in addition to the name "Joseph
Estrada"; (2) Estrada’s use of the alias was not isolated or limited to a single
transaction; and (3) the use of the alias "Jose Velarde" was designed to
cause and did cause "confusion and fraud in business transactions" which
the anti-alias law and its related statutes seek to prevent. The People also
argues that the evidence it presented more than satisfied the requirements of
CA No. 142, as amended, and Ursua, as it was also shown or established
that Estrada’s use of the alias was public.
In light of our above conclusions and based on the parties’ expressed
positions, we shall now examine within the Ursua framework the assailed
Sandiganbayan Resolution granting the demurrer to evidence. The
prosecution has the burden of proof to show that the evidence it presented
with the Sandiganbayan satisfied the Ursua requirements, particularly on the
matter of publicity and habituality in the use of an alias.
What is the coverage of the indictment?
The People argues that the Sandiganbayan gravely erred and abused its
discretion in limiting the coverage of the amended Information in Crim. Case
No. 26565 to Estrada’s use of the alias "Jose Velarde" on February 4, 2000.
It posits that there was a main transaction – one that took place on February
4, 2000 – but there were other transactions covered by the phrase "prior to or
subsequent thereto; the Information specifically referred to "several
transactions" … "with Equitable PCI Bank and/or other corporate entities." To
the People, the restrictive finding – that the phrase "prior to or subsequent
thereto" is absorbed by the phrase "on or about 04 February 2000" –
drastically amends the succeeding main allegations on the constitutive
criminal acts by removing the plurality of both the transactions involved and
the documents signed with various entities; there is the undeniable essential
relationship between the allegations of the multiplicity of transactions, on one
hand, and the additional antecedent of "prior to or subsequent thereto," on
the other. It argues that the Sandiganbayan reduced the phrase "prior to or
subsequent thereto" into a useless appendage, providing Estrada with a
convenient and totally unwarranted escape route.
The People further argues that the allegation of time is the least exacting in
satisfying the constitutional requirement that the accused has to be informed
of the accusation against him. Section 6 of Rule 110 of the Revised Rules of
Court provides that an allegation of the approximate date of the commission
of the offense will suffice, while Section 11 of the same Rule provides that it
is not necessary to state in the complaint or information the precise date the
offense was committed except when it is a material ingredient of the crime.
This liberality allegedly shaped the time-tested rule that when the "time"
given in the complaint is not of the essence of the offense, the time of the
commission of the offense does not need to be proven as alleged, and that
the complaint will be sustained if the proof shows that the offense was
committed at any time within the period of the statute of limitations and
before the commencement of the action (citing People v. Bugayong [299
SCRA 528, 537] that in turn cited US v. Smith [3 Phil. 20, 22]). Since
allegations of date of the commission of an offense are liberally interpreted,
the People posits that the Sandiganbayan gravely abused its discretion in
disregarding the additional clause "prior to or subsequent thereto"; under the
liberality principle, the allegations of the acts constitutive of the offense finally
determine the sufficiency of the allegations of time. The People thus claims
that no surprise could have taken place that would prevent Estrada from
properly defending himself; the information fully notified him that he was
being accused of using the alias Jose Velarde in more than just one instance.
We see no merit in these arguments.
At its core, the issue is constitutional in nature – the right of Estrada to be
informed of the nature and cause of the accusation against him. Under the
provisions of the Rules of Court implementing this constitutional right, a
complaint or information is sufficient if it states the name of the accused; the
designation of the offense given by the statute; the acts or omissions
complained of as constituting the offense in the name of the offended party;
the approximate date of the commission of the offense; and the place where
the offense was committed.29 As to the cause of accusation, the acts or
omissions complained of as constituting the offense and the qualifying and
aggravating circumstances must be stated in ordinary and concise language
and not necessarily in the language used in the statute, but in terms sufficient
to enable a person of common understanding to know the offense charged
and the qualifying and aggravating circumstances, and for the court to
pronounce judgment.30 The date of the commission of the offense need not
be precisely stated in the complaint or information except when the precise
date is a material ingredient of the offense. The offense may be alleged to
have been committed on a date as near as possible to the actual date of its
commission.31
The information must at all times embody the essential elements of the crime
charged by setting forth the facts and circumstances that bear on the
culpability and liability of the accused so that he can properly prepare for and
undertake his defense.32 In short, the allegations in the complaint or
information, as written, must fully inform or acquaint the accused – the
primary reader of and the party directly affected by the complaint or
information – of the charge/s laid.
The heretofore cited Information states that "… on or about 04 February
2000, or sometime prior or subsequent thereto, in the City of Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused [did] … willfully, unlawfully and criminally REPRESENT
HIMSELF AS ‘JOSE VELARDE’ IN SEVERAL TRANSACTIONS AND use
and employ the SAID alias "Jose Velarde" which IS neither his registered
name at birth nor his baptismal name, in signing documents with Equitable
PCI Bank and/or other corporate entities."
We fully agree with the disputed Sandiganbayan’s reading of the Information,
as this was how the accused might have similarly read and understood the
allegations in the Information and, on this basis, prepared his defense.
Broken down into its component parts, the allegation of time in the
Information plainly states that (1) ON February 4, 2000; (2) OR before
February 4, 2000; (3) OR sometime prior or subsequent to February 4, 2000,
in the City of Manila, Estrada represented himself as "Jose Velarde" in
several transactions in signing documents with Equitable PCI Bank and/or
other corporate entities.
Under this analysis, the several transactions involving the signing of
documents with Equitable PCI Bank and/or other corporate entities all had
their reference to February 4, 2000; they were all made on or about or prior
or subsequent to that date, thus plainly implying that all these transactions
took place only on February 4, 2000 or on another single date sometime
before or after February 4, 2000. To be sure, the Information could have
simply said "on or about February 4, 2000" to capture all the alternative
approximate dates, so that the phrase "sometime prior or subsequent
thereto" would effectively be a surplusage that has no meaning separately
from the "on or about" already expressed. This consequent uselessness of
the "prior or subsequent thereto" phrase cannot be denied, but it is a direct
and necessary consequence of the use of the "OR" between the two phrases
and the "THERETO" that referred back to February 4, 2000 in the second
phrase. Of course, the reading would have been very different (and would
have been clearly in accord with the People’s present interpretation) had the
Information simply used "AND" instead of "OR" to separate the phrases; the
intent to refer to various transactions occurring on various dates and
occasions all proximate to February 4, 2000 could not be disputed.
Unfortunately for the People, the imprecision in the use of "OR" is the reality
the case has to live with. To act contrary to this reality would violate Estrada’s
right to be informed of the nature and cause of accusation against him; the
multiple transactions on several separate days that the People claims would
result in surprise and denial of an opportunity to prepare for Estrada, who has
a right to rely on the single day mentioned in the Information.
Separately from the constitutional dimension of the allegation of time in the
Information, another issue that the allegation of time and our above
conclusion raise relates to what act or acts, constituting a violation of the
offense charged, were actually alleged in the Information.1avvphi1
The conclusion we arrived at necessarily impacts on the People’s case, as it
deals a fatal blow on the People’s claim that Estrada habitually used the Jose
Velarde alias. For, to our mind, the repeated use of an alias within a single
day cannot be deemed "habitual," as it does not amount to a customary
practice or use. This reason alone dictates the dismissal of the petition under
CA No. 142 and the terms of Ursua.
The issues of publicity, numbered accounts, and
the application of CA No. 142, R.A. No. 1405,
and R.A. No. 9160.
We shall jointly discuss these interrelated issues.
The People claims that even on the assumption that Ocampo and Curato are
bank officers sworn to secrecy under the law, the presence of two other
persons who are not bank officers – Aprodicio Laquian and Fernando Chua –
when Estrada’s signed the bank documents as "Jose Velarde" amounted to a
"public" use of an alias that violates CA No. 142.
On the issue of numbered accounts, the People argues that to premise the
validity of Estrada’s prosecution for violation of CA No. 142 on a mere
banking practice is gravely erroneous, improper, and constitutes grave abuse
of discretion; no banking law provision allowing the use of aliases in the
opening of bank accounts existed; at most, it was allowed by mere
convention or industry practice, but not by a statute enacted by the
legislature. Additionally, that Estrada’s prosecution was supposedly based on
BSP Circular No. 302 dated October 11, 2001 is wrong and misleading, as
Estrada stands charged with violation of CA No. 142, penalized since 1936,
and not with a violation of a mere BSP Circular. That the use of alias in bank
transactions prior to BSP Circular No. 302 is allowed is inconsequential
because as early as CA No. 142, the use of an alias (except for certain
purposes which do not include banking) was already prohibited. Nothing in
CA No. 142 exempted the use of aliases in banking transactions, since the
law did not distinguish or limit its application; it was therefore grave error for
the Sandiganbayan to have done so. Lastly on this point, bank regulations
being mere issuances cannot amend, modify or prevail over the effective,
subsisting and enforceable provision of CA No. 142.
On the issue of the applicability of R.A. No. 1405 and its relationship with CA
No. 142, that since nothing in CA No. 142 excuses the use of an alias, the
Sandiganbayan gravely abused its discretion when it ruled that R.A. No.
1405 is an exception to CA No. 142’s coverage. Harmonization of laws, the
People posits, is allowed only if the laws intended to be harmonized refer to
the same subject matter, or are at least related with one another. The three
laws which the Sandiganbayan tried to harmonize are not remotely related to
one another; they each deal with a different subject matter, prohibits a
different act, governs a different conduct, and covers a different class of
persons,33 and there was no need to force their application to one another.
Harmonization of laws, the People adds, presupposes the existence of
conflict or incongruence between or among the provisions of various laws, a
situation not obtaining in the present case.
The People posits, too, that R.A. No. 1405 does not apply to trust
transactions, such as Trust Account No. C-163, as it applies only to
traditional deposits (simple loans). A trust account, according to the People,
may not be considered a deposit because it does not create the juridical
relation of creditor and debtor; trust and deposit operations are treated
separately and are different in legal contemplation; trust operation is separate
and distinct from banking and requires a grant of separate authority, and trust
funds are not covered by deposit insurance under the Philippine Deposit
Insurance Corporation law (R.A. No. 3591, as amended).
The People further argues that the Sandiganbayan’s conclusion that the
transaction or communication was privileged in nature was erroneous – a
congruent interpretation of CA No. 142 and R.A. No. 1405 shows that a
person who signs in a public or private transaction a name or alias, other
than his original name or the alias he is authorized to use, shall be held liable
for violation of CA No. 142, while the bank employees are bound by the
confidentiality of bank transactions except in the circumstances enumerated
in R.A. No. 1405. At most, the People argues, the prohibition in R.A. No.
1405 covers bank employees and officers only, and not Estrada; the law
does not prohibit Estrada from disclosing and making public his use of an
alias to other people, including Ocampo and Curato, as he did when he made
a public exhibit and use of the alias before Messrs. Lacquian and Chua.
Finally, the People argues that the Sandiganbayan ruling that the use of an
alias before bank officers does not violate CA No. 142 effectively encourages
the commission of wrongdoing and the concealment of ill-gotten wealth under
pseudonyms; it sustains an anomalous and prejudicial policy that uses the
law to silence bank officials and employees from reporting the commission of
crimes. The People contends that the law – R.A. No. 1405 – was not
intended by the Legislature to be used as a subterfuge or camouflage for the
commission of crimes and cannot be so interpreted; the law can only be
interpreted, understood and applied so that right and justice would prevail.
We see no merit in these arguments.
We agree, albeit for a different reason, with the Sandiganbayan position that
the rule in the law of libel – that mere communication to a third person is
publicity – does not apply to violations of CA No. 142. Our close reading of
Ursua – particularly, the requirement that there be intention by the user to be
culpable and the historical reasons we cited above – tells us that the required
publicity in the use of alias is more than mere communication to a third
person; the use of the alias, to be considered public, must be made openly,
or in an open manner or place, or to cause it to become generally known. In
order to be held liable for a violation of CA No. 142, the user of the alias must
have held himself out as a person who shall publicly be known under that
other name. In other words, the intent to publicly use the alias must be
manifest.
To our mind, the presence of Lacquian and Chua when Estrada signed as
Jose Velarde and opened Trust Account No. C-163 does not necessarily
indicate his intention to be publicly known henceforth as Jose Velarde. In
relation to Estrada, Lacquian and Chua were not part of the public who had
no access to Estrada’s privacy and to the confidential matters that transpired
in Malacañan where he sat as President; Lacquian was the Chief of Staff with
whom he shared matters of the highest and strictest confidence, while Chua
was a lawyer-friend bound by his oath of office and ties of friendship to keep
and maintain the privacy and secrecy of his affairs. Thus, Estrada could not
be said to have intended his signing as Jose Velarde to be for public
consumption by the fact alone that Lacquian and Chua were also inside the
room at that time. The same holds true for Estrada’s alleged representations
with Ortaliza and Dichavez, assuming the evidence for these representations
to be admissible. All of Estrada’s representations to these people were made
in privacy and in secrecy, with no iota of intention of publicity.
The nature, too, of the transaction on which the indictment rests, affords
Estrada a reasonable expectation of privacy, as the alleged criminal act
related to the opening of a trust account – a transaction that R.A. No. 1405
considers absolutely confidential in nature. 34 We previously rejected, in
Ejercito v. Sandiganbayan,35 the People’s nitpicking argument on the alleged
dichotomy between bank deposits and trust transactions, when we said:
The contention that trust accounts are not covered by the term "deposits," as
used in R.A. 1405, by the mere fact that they do not entail a creditor-debtor
relationship between the trustor and the bank, does not lie. An examination of
the law shows that the term "deposits" used therein is to be understood
broadly and not limited only to accounts which give rise to a creditor-debtor
relationship between the depositor and the bank.
The policy behind the law is laid down in Section 1:
SECTION 1. It is hereby declared to be the policy of the Government to give
encouragement to the people to deposit their money in banking institutions
and to discourage private hoarding so that the same may be properly utilized
by banks in authorized loans to assist in the economic development of the
country. (Underscoring supplied)
If the money deposited under an account may be used by bank for
authorized loans to third persons, then such account, regardless of whether it
creates a creditor-debtor relationship between the depositor and the bank,
falls under the category of accounts which the law precisely seeks to protect
for the purpose of boosting the economic development of the country.
Trust Account No. 858 is, without doubt, one such account. The Trust
Agreement between petitioner and Urban Bank provides that the trust
account covers "deposit, placement or investment of funds" by Urban
Bank for and in behalf of petitioner. The money deposited under Trust
Account No. 858, was, therefore, intended not merely to remain with the bank
but to be invested by it elsewhere. To hold that this type of account is not
protected by R.A. 1405 would encourage private hoarding of funds that could
otherwise be invested by bank in other ventures, contrary to the policy behind
the law.
Section 2 of the same law in fact even more clearly shows that the term
"deposits" was intended to be understood broadly:
SECTION 2. All deposits of whatever nature with bank or banking institutions
in the Philippines including investments in bonds issued by the Government
of the Philippines, its political subdivisions and its instrumentalities, are
hereby considered as of an absolutely confidential nature and may not be
examined, inquired or looked into by any person, government official, bureau
or office, except upon written permission of the depositor, or in cases of
impeachment, or upon order of a competent court in cases of bribery or
dereliction of duty of public officials, or in cases where the
money deposited or invested is the subject matter of the litigation.
(Emphasis and underscoring supplied)1avvphi1
The phrase "of whatever nature" proscribes any restrictive interpretation of
"deposits." Moreover, it is clear from the immediately quoted provision that,
generally, the law applies not only to money which is deposited but also to
those which are invested. This further shows that the law was not intended to
apply only to "deposits" in the strict sense of the word.lawphil.net Otherwise,
there would have been no need to add the phrase "or invested.
Clearly, therefore, R.A. 1405 is broad enough to cover Trust Account No.
858.36
We have consistently ruled that bank deposits under R.A. No. 1405 (the in this review and accordingly find no reversible error of law in the assailed
Secrecy of Bank Deposits Law) are statutorily protected or recognized zones Sandiganbayan ruling.
of privacy.37 Given the private nature of Estrada’s act of signing the
documents as "Jose Velarde" related to the opening of the trust account, the WHEREFORE, premises considered, we DENY the petition for lack of merit.
People cannot claim that there was already a public use of alias when
Ocampo and Curato witnessed the signing. We need not even consider here SO ORDERED.
the impact of the obligations imposed by R.A. No.1405 on the bank officers;
what is essentially significant is the privacy situation that is necessarily
implied in these kinds of transactions. This statutorily guaranteed privacy and ARTURO D. BRION
secrecy effectively negate a conclusion that the transaction was done Associate Justice
publicly or with the intent to use the alias publicly.

The enactment of R.A. No.9160, on the other hand, is a significant

development only because it clearly manifests that prior to its enactment,
numbered accounts or anonymous accounts were permitted banking
transactions, whether they be allowed by law or by a mere banking
regulation. To be sure, an indictment against Estrada using this relatively
recent law cannot be maintained without violating the constitutional
prohibition on the enactment and use of ex post facto laws. 38

We hasten to add that this holistic application and interpretation of these

various laws is not an attempt to harmonize these laws. A finding of
commission of the offense punished under CA No. 142 must necessarily rest
on the evidence of the requisites for culpability, as amplified in Ursua. The
application of R.A. No. 1405 is significant only because Estrada’s use of the
alias was pursuant to a transaction that the law considers private or, at the
very least, where the law guarantees a reasonable expectation of privacy to
the parties to the transactions; it is at this point that R.A. No. 1405
tangentially interfaces with an indictment under CA 142. In this light, there is
no actual frontal clash between CA No. 142 and R.A. No. 1405 that requires
harmonization. Each operates within its own sphere, but must necessarily be
read together when these spheres interface with one another. Finally, R.A.
No. 9160, as a law of recent vintage in relation to the indictment against
Estrada, cannot be a source or an influencing factor in his indictment.

In finding the absence of the requisite publicity, we simply looked at the

totality of the circumstances obtaining in Estrada’s use of the alias "Jose
Velarde" vis-à-vis the Ursua requisites. We do not decide here whether
Estrada’s use of an alias when he occupied the highest executive position in
the land was valid and legal; we simply determined, as the Sandiganbayan
did, whether he may be made liable for the offense charged based on the
evidence the People presented. As with any other accused, his guilt must be
based on the evidence and proof beyond reasonable doubt that a finding of
criminal liability requires. If the People fails to discharge this burden, as they
did fail in this case, the rule of law requires that we so declare. We do so now

Republic of the Philippines
SUPREME COURT
SECOND DIVISION
G.R. No. 162187 November 18, 2005
CRISTE B. VILLANUEVA, Petitioner,
vs.
THE HON. SECRETARY OF JUSTICE and HORST-KESSLER VON
SPRENGEISEN, Respondents.
DECISION
CALLEJO, SR., J.:
Before the Court is a petition for review on certiorari of the Decision1 of the
Court of Appeals (CA) in CA-G.R. SP No. 76999 dismissing the petition
for certiorari assailing the finding of the Secretary of Justice that no probable
cause exists against private respondent Horst-Kessler Von Sprengeisen for
perjury.
The Antecedents
On April 2, 1996, the Refractories Corporation of the Philippines (RCP) filed a
protest before the Special Committee on Anti-Dumping of the Department of
Finance against certain importations of Hamburg Trading Corporation (HTC),
a corporation duly organized and existing under the laws of the Philippines.
The matter involved 151.070 tons of magnesite-based refractory bricks from
Germany.2 The case was docketed as Anti-Dumping Case No. I-98.
The protest was referred to the Bureau of Import Services (BIS) of the
Department of Trade and Industry, to determine if there was a prima
facie case for violation of Republic Act (R.A.) No. 7843, the Anti-Dumping
Law. Sometime in February 1997, the BIS submitted its report to the Tariff
Commission, declaring that a prima facie case existed and that continued
importation of refractory bricks from Germany would harm the local industry.
It adopted the amount of DM 1,200 per metric ton as the normal value of the
imported goods.3
The HTC received a copy of the said report on February 14, 1997. However,
before it could respond, the chairman of the Tariff Commission prodded the
parties to settle the matter amicably. A conference ensued between RCP
Senior Vice President and Assistant General Manager Criste Villanueva and
Jesus Borgonia, on the one hand, and HTC President and General Manager
Horst-Kessler Von Sprengeisen and Sales Manager Dennis Gonzales, on the
other. During the conference, the parties agreed that the refractory bricks
were imported by the HTC at a price less than its normal value of DM 1,200,
and that such importation was likely to injure the local industry. The parties
also agreed to settle the case to avoid expenses and protracted litigation.
HTC was required to reform its price policy/structure of its importation and
sale of refractory bricks from Germany to conform to the provisions of R.A.
No. 7843 and its rules and regulations. Jesus Borgonio thereafter prepared
and signed a compromise agreement containing the terms agreed upon
which Villanueva and Borgonia signed. 4 Bienvenido Flores, an Office Clerk of
RCP, delivered the agreement to HTC at the 9th Floor of Ramon Magsaysay
Center Building, 1680 Roxas Boulevard, Manila by Von Sprengeisen’s
approval.5
However, Von Sprengeisen did not sign the agreement. Borgonia revised the
agreement by inserting the phrase "based on the findings of the BIS" in
paragraph 1 thereof. Villanueva and Borgonia signed the agreement and had
the same delivered to the office of HTC on April 22, 1997 by Lino M.
Gutierrez, a technical assistant of RCP. Gonzales received the agreement
and delivered the same to Von Sprengeisen. After 20 minutes, Gonzales
returned, with the agreement already signed by Von Sprengeisen. 6 Gonzales,
who had also signed, then gave it to Gutierrez. On the same day, Notary
Public Zenaida P. De Zuñiga notarized the agreement. 7 Gonzales delivered a
copy of the notarized Agreement to HTC.8
RCP submitted the compromise agreement to the Tariff Commission. During
the May 9, 1997 hearing before the Commission for the approval of the
agreement, a representative of HTC appeared. He offered no objection to the
Agreement. The Commission submitted its report to the Special Committee
which rendered a decision declaring that, based on the findings of the BIS,
the normal value of the imported refractory bricks was DM 1,200 per metric
ton. HTC received a copy of the decision on March 4, 1998. Neither RCP nor
HTC appealed the decision to the Court of Tax Appeals.
In the meantime, HTC imported refractory bricks from Germany anew and
noted that the normal value of the said importation under the decision of the
Special Committee based on the BIS report was DM 1,200 per metric ton. On
July 28, 1998, the HTC filed an Urgent Motion to Set Aside and/or Vacate
Judgment with the Special Committee on Anti-Dumping, praying that such
decision be declared null and void on the following grounds:
1. THE FRAUD HAD BEEN COMMITTED BY THE PROTESTANT DURING
THE NEGOTIATION FOR THE PREPARATION OF THE COMPROMISE
AGREEMENT.
2. THAT INSERTIONS AND/OR SUBSTITUTION OF THE FACTS NOT
AGREED UPON WAS DELIBERATELY AND SURREPTITIOUSLY MADE
BY THE PROTESTANT IN THE COMPROMISE AGREEMENT WITHOUT
THE KNOWLEDGE AND CONSENT OF THE PROTESTEE.9
The motion was verified by Von Sprengeisen. The HTC averred therein that
Villanueva violated Article 172 of the Revised Penal Code when he
surreptitiously inserted the phrase "based on the findings of the BIS" in the
agreement without the knowledge and consent of Von Sprengeisen and
despite their agreement to put behind them the findings of the BIS. Appended
to the motion was an Affidavit of Merit executed by Von Sprengeisen in which
he alleged, inter alia, that sometime in February 1997, the BIS came out with
its Report declaring that the normal value of the magnesite-based refractory
bricks was DM 1,200 per metric ton; before
HTC could respond to the report, Villanueva invited him to a conference for
the purpose of finding the best solution to the pending case before the
Commission; he and Gonzales attended the meeting during which it was
agreed, by way of a compromise, that the parties will accept the amount of
DM 1,050 per metric ton as the normal value for all magnesite-based
refractory bricks from Germany; when he received the draft of the
compromise agreement prepared by Villanueva, he approved the same;
subsequently, Villanueva transmitted a compromise agreement already
signed by him to Von Sprengeisen for his review, approval and signature;
believing that the compromise agreement reproduced the contents of the first
compromise agreement, he signed the second agreement without reading it;
when he received, on March 4, 1998, a copy of the decision of the Tariff
Commission based on the compromise agreement of the parties wherein the
committee adopted the findings and recommendations of the BIS (that the
normal value of the shipment was DM 1,200 per metric ton), he was shocked
because he never agreed to the use of such findings for the reformation of its
price policies; there was, in fact, an agreement between him and Villanueva
to put behind them the findings of the BIS; he called up Villanueva at his
office but failed to contact him despite several attempts; suspecting that
something amiss happened, he had the draft of the first compromise
agreement retrieved but his secretary failed to locate the same; it was only
sometime later that his secretary found the folder-file containing the draft and
was appalled to discover that Villanueva had substantially altered the first
draft of the compromise agreement; this made him conclude and confirm his
suspicion that Villanueva, thru deceit and fraud, induced him to sign the
compromise agreement to the prejudice of the HTC. 10
The RCP opposed the motion. But, in a parallel move, Villanueva, in his
capacity as Senior Vice President and Assistant General Manager of RCP,
filed a criminal complaint for perjury against Von Sprengeisen in the Office of
the City Prosecutor of Manila. Appended thereto was a complaint-affidavit
executed by Villanueva wherein he declared, inter alia, that Von Sprengeisen
made the following false statements in the Urgent Motion, thus:
a. [Complainant] was the one who called up his office, inviting him to a
meeting for the purpose of finding the best and most equitable solution to the
case (p. 3, Urgent Motion);
b. RCP and Hamburg Trading agreed to put behind them the findings and
recommendations of the Bureau of Import Services (BIS) with respect to the
anti-dumping protest filed by RCP (p. 3, Urgent Motion);
c. The original version of the Compromise Agreement sent to him was merely
a draft (p. 3, Urgent Motion);
d. The phrase "based on the findings of the Bureau of Import Services" was
inserted in paragraph 1 of the final Compromise Agreement without his
knowledge and consent (p. 3, Urgent Motion); and
e. [Complainant] was the one who surreptitiously inserted the aforesaid
phrase (p. 3, Urgent Motion).11
Villanueva also alleged that Von Sprengeisen made the following false
statements in his Affidavit of Merit:
a. [Complainant] invited him to a conference for the purpose of finding the
best solution to the case;
b. [Complainant and he] agreed to put behind [them] the findings and
recommendation of the BIS submitted to the Secretary of Finance;
c. We agreed to the amount of DM 1,050/ton as the normal value for all
magnesite-based refractory bricks from Germany;
d. The original version of the Compromise Agreement sent to him was merely
a draft; and
e. Through deceit and fraud, [complainant] induced [respondent] to sign the
final Compromise Agreement.12
In his Counter-Affidavit, Von Sprengeisen averred that whoever called the
other for a conference was not a material matter. Since the first draft of the
Compromise Agreement transmitted to him was by fax, he asked the
complainant to send to him the hard copy of the Agreement for his signature.
He further narrated that when he received the hard copy of the compromise
agreement, he did not bother to review since he assumed that it contained
the same provisions in the faxed copy. He did not suggest that the phrase
"based on the findings of the BIS" be inserted in the hard copy of the
agreement because he and Villanueva were at odds on the BIS finding the
normal price of the goods was DM 1,200 per metric ton. He insisted that it
would have been senseless of him to agree to such insertion; as such, he did
not make any willful and deliberate assertion of any falsehood as to any
material fact.13
Investigating Prosecutor Francisco G. Supnet found no probable cause for
perjury against the private respondent and recommended the dismissal of the
complaint. Second Assistant City Prosecutor Leoncia Dimagiba reviewed the
resolution of Prosecutor Supnet and found probable cause for perjury against
the private respondent for alleging in his Affidavit of Merit
that he was induced to sign the compromise agreement through fraud and
deceit. According to the Second Assistant City Prosecutor, the allegation of
the private respondent "thru deceit and fraud to sign the final Compromise
Agreement" was a deliberate assertion of a falsehood, designed as it was
merely to give the BIS the impression that private respondent was misled into
agreeing to the compromise agreement. She further opined that the
allegation was perjurious, considering that the private respondent had
sufficient time to pass upon the Compromise Agreement and could have
availed the services of legal minds who could review the terms and
conditions thereof before signing the same;14 hence, she recommended the
reversal of Prosecutor Supnet’s resolution and the filing of the information.
The City Prosecutor approved the recommendation of the Second Assistant
City Prosecutor. Accordingly, an Information for perjury was filed against the
private respondent with the Metropolitan Trial Court of Manila.
The private respondent appealed the resolution to the Secretary of Justice,
who reversed the resolution of the City Prosecutor on September 20, 2002.
According to the Justice Secretary, the complainant failed to establish the
materiality of the alleged false assertions and that the said assertions were
willful and deliberate. Moreover, the allegations in the Affidavit of Merit are
not altogether false since the intention of the parties in executing the
compromise agreement was precisely to put behind the ruling of the BIS,
despite which the complainant inserted the condition that the parties would
be bound by such findings and recommendations. 15 The decretal portion of
the resolution reads:
WHEREFORE, the appealed resolution of the City Prosecutor of Manila is
hereby REVERSED. The City Prosecutor is directed to withdraw the
information for perjury against respondent Horst-Kessler von Sprengeisen
and to report the action taken within ten (10) days from receipt hereof.
SO ORDERED.16
Villanueva then filed a petition for certiorari with the CA assailing the
resolution of the Justice Secretary, alleging therein that grave abuse of
discretion, amounting to excess or lack of jurisdiction, was committed in
issuing the said resolution.17 The private respondent, for his part, sought the
dismissal of the petition alleging that, as found by the Justice Secretary, there
was no probable cause against him for perjury.18
On February 13, 2004, the CA dismissed the petition and affirmed the
resolution of the Justice Secretary.19
The CA declared that, as posited by the Office of the Solicitor General in its
comment on the petition, the parties had agreed to put behind them the
findings and recommendations of the BIS with respect to the anti-dumping
protest. The appellate court stated that its finding is buttressed by the fact
that the amount of DM 1,050 was not mentioned in the first compromise
agreement and that, under such agreement, the HTC obliged itself "to reform
its pricing policy and structure with respect to refractory products being
imported to and sold in the Philippines in accordance with the provisions of
R.A. No. 7843 and its implementing rules and requirements." The CA
emphasized that it was inclined to believe that there was no meeting of the
minds of the parties when the petitioner inserted the phrase "based on the
findings of the BIS" in the revised compromise agreement; hence, there
could not have been perjury when the private respondent executed the
Affidavit of Merit and the Urgent Motion to Set Aside and/or Vacate
Judgment. The CA also agreed with the findings of the Secretary of Justice
that the insertion of the condition in the compromise agreement that the
parties would be bound by the BIS findings and recommendation gave the
private respondent reason to believe that he was deceived by the petitioner
into signing the Agreement; as such, the private respondent’s allegation in
his Affidavit of Merit, that he was induced to signing the Compromise
Agreement through fraud and deceit, was not altogether false. Consequently,
the CA ruled, the private respondent did not make any willful and deliberate
assertion of a falsehood.20 The appellate court conformed to the disquisitions
of the Secretary of Justice in the assailed resolution and concluded that the
private respondent did not, in the Affidavit of Merit, make a willful and
deliberate assertion of a falsehood.21
Aggrieved, the petitioner filed a petition for review on certiorari with this Court
against private respondent Von Sprengeisen and the Secretary of Justice,
insisting that the CA committed grave abuse of discretion amounting to
excess or lack of jurisdiction in dismissing the petition and affirming the
assailed resolution.
The petitioner maintains that, during the preliminary investigation, he
adduced substantial evidence to prove probable cause for perjury against the
private respondent. He maintains that probable cause does not mean actual
and positive causes; nor does it import absolute certainty. It is merely based
on opinion and reasonable belief. It is enough that it is believed that the act
or omission complained of constitutes the offense charged. He avers that,
contrary to the claim of the private respondent in his Affidavit of Merit, the
meeting between him and Jesus Borgonio, on the one hand, and the private
respondent and HTC Sales Manager Dennis Gonzales, on the other, was
arranged by the latter and not by him. As gleaned from the draft and final
copies of the compromise agreement, the parties made express reference to
the prima facie findings of the BIS that the actual export price of HTC was
below the fair market value. By agreeing that such findings of the BIS be
included in the Compromise Agreement, the said private respondent
impliedly agreed to such findings as basis of the price for which HTC would
sell the German-made magnesite-based refractory bricks in the Philippines.
The petitioner avers that the fact that the amount of DM 1,050 per metric ton
was not specifically mentioned in the compromise agreement was of no
importance, considering the parties’ acceptance of such findings is based on
R.A. No. 7843. He points out that the private respondent could not have
failed to notice the difference between the first draft and the final copy of the
agreement before signing it because, as alleged by Lino Gutierrez in his reply
affidavit, it took the private respondent twenty minutes or so after receiving
the agreement to review the final draft before signing it. Moreover, the Urgent
Motion to Set Aside and/or Vacate Judgment signed by the private
respondent was filed more than 15 months from the execution of the
compromise agreement and after four months from the Tariff Commission’s
approval thereof.
The petitioner argues that it is incredible that during the interregnum of 19
months, the private respondent failed to discover the revisions/insertions in
the final draft of the compromise agreement. Considering the premises, the
petitioner submits, the private respondent’s filing of the Urgent Motion for and
in behalf of HTC was merely an afterthought, to enable the latter to escape
compliance with the terms and conditions of the Agreement.
The petitioner further insists that the insertion of the contested phrase in the
final draft of the compromise agreement was necessary although it may not
be in the best interest of HTC. He posits that the falsehoods made by the
private respondent in his Urgent Motion and Affidavit of Merit were material to
the proceedings in the Anti-Dumping Office of the Tariff Commission because
these were used to set aside the compromise agreement executed by the
parties.
In his Comment on the petition, the private respondent avers that the issues
raised by the petitioner are factual, hence, improper in a petition for
review on certiorari under Rule 45 of the Rules of Court. The determination of
the existence of a probable cause is primarily an administrative sanction of
the Secretary of Justice. He insists that the findings of the Justice Secretary
should be accorded great respect, especially since the same were upheld by
the CA. He asserts that the petitioner failed to establish in the CA and in this
Court that the Justice Secretary committed a grave abuse of discretion
amounting to excess or lack of jurisdiction in her resolution.
The petition has no merit.
The pivotal issue in this case is factual – whether or not, based on the
records, there was probable cause for the private respondent’s indictment for
perjury.
Rule 45 of the Rules of Court provides that only questions of fact may be
raised in a petition for review on certiorari. Findings of facts of a quasi-judicial
agency, as affirmed by the CA, are generally conclusive on the Court, unless
cogent facts and circumstances of such a nature warranting the modification
or reversal of the assailed decision were ignored, misunderstood or
misinterpreted. Thus, the Court may delve into and resolve factual issues in
exceptional cases. The petitioner has failed to establish that any such
circumstance is present in the case at bar.22
The Court finds that the public respondent did not commit any grave abuse of
discretion amounting to excess or lack of jurisdiction in issuing the assailed
resolution, and that the CA did not commit any reversible error in its assailed
decision and resolution. If at all the public respondent erred in issuing the
assailed resolution, such is merely an error in the exercise of jurisdiction,
reversible by a petition for review under Rule 43 of the Rules of Court
especially so where, as in this case, the issues before the CA were factual
and not legal. The absence or existence of probable cause in a given case
involves a calibration and a reexamination of the evidence adduced by the
parties before the Office of the City Prosecutor of Manila and the probative
weight thereof. The CA thus ruled correctly when it dismissed the petition
before it.
Probable cause, for purposes of filing a criminal information, has been
defined as such facts as are sufficient to engender a well-founded belief that
a crime has been committed and that the private respondent is probably
guilty thereof. It is 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
or positive cause;" nor does it import absolute certainty. It is merely based on
opinion and reasonable belief. Thus, a finding of probable cause does not
require an inquiry into whether there is sufficient evidence to procure a
conviction. It is enough that it is believed that the act or omission complained
of constitutes the offense charged. Precisely, there is a trial for the reception
of evidence of the prosecution in support of the charge."23
The determination of its existence lies within the discretion of the prosecuting
officers after conducting a preliminary investigation upon complaint of an
offended party.24 The Resolution of the Secretary of Justice declaring the
absence or existence of a probable cause affirmed by the CA is accorded
high respect. However, such finding may be nullified where grave abuse of
discretion amounting to excess or lack of jurisdiction is established. 25
Perjury is defined and penalized in Article 183 of the Revised Penal Code,
thus:
Art. 183. False testimony in other cases and perjury in solemn affirmation.
The penalty of arresto mayor in its maximum period to prision correccional in
its minimum period shall be imposed upon any person who, knowingly
making untruthful statements and not being included in the provisions of the
next preceding articles, shall testify under oath or make an affidavit upon any
material matter before a competent person authorized to administer an oath
in cases in which the law so requires.
Any person who, in case of a solemn affirmation made in lieu of an oath,
shall commit any of the falsehoods mentioned in this and the three preceding
articles of this section shall suffer the respective penalties provided therein.
Perjury is an obstruction of justice; its perpetration may affect the earnest
concerns of the parties before a tribunal. The felony is consummated when
the false statement is made.26
The seminal modern treatment of the history of perjury concludes that one
consideration of policy overshadows all others – the measures taken against
the offense must not be so severe as to discourage aggrieved parties from
lodging complaints or testifying.27 As quoted by Dean Wigmore, a leading
19th Century Commentator, noted that English law, "throws every fence
round a person accused of perjury, for the obligation of protecting witnesses
from oppression or annoyance, by charges, or threats of charges, of having
made false testimony is far paramount to that of giving even perjury its
deserts."28
Perjury is the willful and corrupt assertion of a falsehood under oath or
affirmation administered by authority of law on a material matter. 29 The
elements of the felony are:
(a) That the accused made a statement under oath or executed an affidavit
upon a material matter.
(b) That the statement or affidavit was made before a competent officer,
authorized to receive and administer oath.
(c) That in that statement or affidavit, the accused made a willful and
deliberate assertion of a falsehood.
(d) That the sworn statement or affidavit containing the falsity is required by
law or made for a legal purpose.30
A mere assertion of a false objective fact, a falsehood, is not enough. The
assertion must be deliberate and willful. 31 Perjury being a felony by dolo,
there must be malice on the part of the accused. 32 Willfully means
intentionally; with evil intent and legal malice, with the consciousness that the
alleged perjurious statement is false with the intent that it should be received
as a statement of what was true in fact. It is equivalent to "knowingly."
"Deliberately" implies meditated as distinguished from inadvertent acts. 33 It
must appear that the accused knows his statement to be false or as
consciously ignorant of its truth.34
Perjury cannot be willful where the oath is according to belief or conviction as
to its truth. A false statement of a belief is not perjury. Bona fide belief in the
truth of a statement is an adequate defense. 35 A false statement which is
obviously the result of an honest mistake is not perjury.
There are two essential elements of proof for perjury: (1) the statement made
by the defendants must be proven false; and (2) it must be proven that the
defendant did not believe those statements to be true. 36
Knowledge by the accused of the falsity of his statement is an internal act. It
may be proved by his admissions or by circumstantial evidence. The state of
mind of the accused may be determined by the things he says and does,
from proof of a motive to lie and of the objective falsity itself, and from other
facts tending to show that the accused really knew the things he claimed not
to know.37
A conviction for perjury cannot be sustained merely upon the contradictory
sworn statements of the accused. The prosecution must prove which of the
two statements is false and must show the statement to be false by other
evidence than the contradicting statement. 38 The rationale of this principle is
thus:
… Proof that accused has given contradictory testimony under oath at a
different time will not be sufficient to establish the falsity of testimony charged
as perjury, for this would leave simply one oath of the defendant as against
another, and it would not appear that the testimony charged was false rather
than the testimony contradictory thereof. The two statements will simply
neutralize each other; there must be some corroboration of the contradictory
testimony. Such corroboration, however, may be furnished by
evidence aliunde tending to show perjury independently of the declarations of
testimony of the accused.39
The term "material matter" is the main fact subject of the inquiry, or any
circumstance which tends to prove that fact, or any fact or circumstance
which tends to corroborate or strengthen the testimony related to the subject
of the inquiry, or which legitimately affects the credence of any witness who
testified. In this case, a matter is material if it has a material effect or
tendency to influence the Commission in resolving the motion of HTC one
way or the other. The effects of the statement are weighed in terms of
potentiality rather than probability. 40 The prosecution need not prove that the
false testimony actually influenced the Commission.41
The private respondent did err when he declared, in the motion of the HTC
and his affidavit, that it was the petitioner who invited him to a
conference. The truth of the matter is that it was Gonzales who did so.
Nonetheless, the issue of who called for a conference is of de
minimis importance because, after all, the parties agreed to meet after having
been prodded by the Chairman of the Commission to settle the case instead
of going through the tribulations and expenses of a protracted litigation. No
adverse inference (related to the merits of their respective contention in this
case) can be ascribed as to whoever called the conference. After all, parties
are even urged to settle cases amicably.
Besides, as correctly declared by the Second Assistant City Prosecutor in her
resolution:
The allegation that it was complainant who invited respondent to the meeting
may not be a deliberate lie. Respondent may not have known who arranged
the meeting, but as he was able to talk to complainant, he presumed that it
was complainant who extended the invitation. Moreover, the identity of the
one who initiated the meeting is not material considering that there was a
meeting of the minds of the Parties.42
The Court also agrees with the contention of the private respondent that the
copy of the first agreement transmitted to him was a fax copy of the draft, and
that, contrary to the allegations of the private respondent, such agreement
was prepared by Borgonia and not by the petitioner. As gleaned from page
two of the agreement, the particulars of the residence certificates of the
petitioner and the private respondent were not typewritten, hence, cannot as
yet be notarized. As claimed by the private respondent, a copy was
transmitted to him for his personal review, and if he found it to be in order,
the petitioner and Borgonia would prepare and sign the agreement and give
it back to him for review and signature, with the particulars of his community
tax certificate indicated in the final copy.
Undeniably, the identity of the person who prepared or caused to prepare the
compromise agreement subsequently signed by the petitioner and the private
respondent was of prime importance because only such person should be
charged for perjury. The private respondent erroneously stated in his Affidavit
of Merit and Urgent Motion that it was the petitioner who prepared the
agreement that was signed by the parties. It turned out that it was Borgonia
who prepared the first and the second copies. However, the private
respondent cannot be held liable for perjury since it was Borgonia who
prepared the agreement and not the petitioner. The Court agrees with the
following contention of the private respondent in his counter-affidavit:
4.6 While complainant claims that it was not he but Mr. Borgonia who made
the insertions, there is no doubt that, indeed, the insertions were made into
the document. Since complainant is the signatory to the Compromise
Agreement, it is but natural for one to presume that he had made the
insertions. At the same time, I can not be expected to know that it was Mr.
Borgonia, as claimed by complainant, who made such insertions. 43
Indeed, Borgonia was merely the Manager of the Management Information
Group of RCP, whereas the petitioner was no less than its Senior Vice
President and Assistant General Manager, Borgonia’s superior. Unless and
until approved by the petitioner, any agreement prepared by Borgonia was
merely a piece of paper, barren of any legal effect. In this case, the
compromise agreement prepared by Borgonia had the petitioner’s
imprimatur. Borgonia was merely a witness to the agreement. For all legal
intents and purposes, the petitioner had the compromise agreement
prepared under his supervision and control. It cannot thus be concluded that
the private respondent made a deliberate falsehood when he alleged that the
agreement was prepared by the petitioner.
The Court is not persuaded by the petitioner’s claim that, during the
conference, he and the private respondent agreed that, based on the BIS
report, the normal value of the imported refractory bricks per metric ton was
DM 1,200, and that such report would be used as basis for the revision of the
price policy and structure of HTC.
It bears stressing that, during the conference, the petitioner and the private
respondent had agreed on three aspects of the case: (1) based on the prima
facie findings of the BIS, the normal value of the goods per meter ton was
DM 1,200 and that the actual export price of HTC was below the fair market
value; (2) to terminate the case, HTC will have to adjust and revise its price
policy and structure for imported refractory bricks to conform to R.A. No.
7843 and rules and regulations implementing the law; and (3) if HTC fails or
refuses to comply with its undertaking, RCP will be entitled to a writ of
execution without need of demand. However, the petitioner and the private
respondent could not have agreed on such base price; the petitioner insisted
on the amount recommended by the BIS (DM 1,200) while the private
respondent insisted on DM 950. There was an impasse. By way of a
compromise, the parties agreed to do away with the BIS recommended base
value and agreed for HTC to base the normal value of the importation per
metric ton under R.A. No. 7843 and the rules issued implementing the law.
This is gleaned from the affidavit of Borgonia:
13. During the meeting, Mr. von Sprengeisen suggested that the value of DM
1,050/ton be applied as the price at which Hamburg Trading would sell
German-made magnesite-based refractory bricks in the Philippines. Mr.
Villanueva did not agree to the suggested value, as we considered it low. In
the end, both parties decided to base the determination of the price on the
provisions of Republic Act No. 7843 and its implementing rules and
regulations. …44
Borgonia prepared the first compromise agreement and incorporated therein
the agreement of the petitioner and the private respondent arrived at during
the conference, thus:
1. For the purpose of buying peace and by way of concession in order to end
litigation, the SECOND PARTY undertakes and commits to reform its pricing
policy and structure with respect to refractory products being imported
interest sold in the Philippines in accordance with the provisions of Republic
Act 7843 and its implementing rules and regulations.45
If, as claimed by the petitioner in his Affidavit-Complaint, he and the private
respondent had agreed that HTC will use as basis for its price policy and
structural revision, the BIS report, for sure, Borgonia would have incorporated
the said agreement in the first compromise agreement. He did not, and
Borgonia has not offered any explanation for such failure. The petitioner
signed the draft of the agreement without any plaint or revision. It was only in
the second compromise agreement that was later signed by the petitioner
and the private respondent that Borgonia incorporated the phrase
"based on the findings of the BIS." Borgonia and the petitioner made the
insertion on their own, without the a priori consent of the private respondent.
The Court is not convinced by the petitioner’s contention (and that of
Borgonia in his Affidavit) that the petitioner and the private respondent had
agreed to leave the final determination of the base value or price of
importation per metric ton to a third party (BIS). The private respondent could
not have agreed to the use of the BIS report because, as mentioned, he had
strenuously objected to its use as basis for the revision of its price policy and
structure. For HTC to admit that the BIS finding of DM 1,200 per metric ton
was the normal value of the refractory bricks from Germany for the purpose
of resolving the anti-dumping case is one thing; but for HTC to agree to be
bound by the BIS recommendation for the purpose of revising its price policy
and structure is completely a different matter.
With the petitioner and the private respondent’s admission of the prima
facie findings of the BIS, the Commission can prepare its recommendation to
the Special Committee on the protest of the RCP to the HTC importation
subject of the case. Thereafter:
D. The Special Committee shall, within fifteen (15) days after receipt of the
report of the Commission, decide whether the article in question is being
imported in violation of this section and shall give due notice of such
decision. In case the decision of dumping is in the affirmative, the special
committee shall direct the Commissioner of Customs to cause the dumping
duty, to be levied, collected and paid, as prescribed in this section, in addition
to any other duties, taxes and charges imposed by law on such article, and
on the articles of the same specific kind or class subsequently imported
under similar circumstances coming from the specific country.
In the event that the Special Committee fails to decide within the period
prescribed herein, the recommendation of the Commission shall be deemed
approved and shall be final and executory. 46
On the matter of the revision or adjustment of the price policy and structure of
HTC, the parties had agreed to accomplish the same in due time. It goes
without saying that the RCP retained the right to object to or protest to the
price policy and structure revision of HTC.
The agreement of the petitioner and the private respondent not to be bound
by the base value in the BIS report for the revision of its price policy and
structure is not unexpected because: (1) the findings of the BIS are
only prima facie, meaning to say, not conclusive, and HTC was accorded a
chance to base its price policy and structure on evidence and informations
other than those contained in the BIS report; (2) the normal value of the
imported refractory bricks may fluctuate from time to time, hence, the need
for any importer to revise its price policy and structure from time to time; and
(3) the base value to be used by HTC in revising its price policy would be
scrutinized and resolved initially by the Commission, by the Special
Committee and by the Court of Tax Appeals on appeal.
The process agreed upon by the petitioner and the private respondent was
not only practical and fair, but in accord with law as well.
In fine, the private respondent did not commit any falsehood in the Urgent
Motion and his Affidavit of Merit when he declared that he and the
petitioner put behind them the BIS report, and agreed to use R.A. No. 7843
and the rules and regulations implementing the same to determine the base
price for the revision of the price policy and structure of HTC.
Admittedly, the respondent did not object to the offending phrase before and
after signing the agreement and for a considerable stretch period until HTC
filed its motion. However, we do not agree with the contention of the
petitioner that such failure of the respondent to object to the offending phrase
for such period of time amounted to an admission that, indeed, the private
respondent was aware of the offending phrase in the Agreement, and to his
agreement thereto; and estopped the private respondent from alleging that
he was deceived by the petitioner into signing the Compromise Agreement.
In his appeal to the DOJ, the private respondent declared that:
3.9 True, respondent-appellant may have been remiss and lacking in
circumspect in failing to review the hard copy Compromise Agreement and
notice the insertion. Being in the trading business, respondent-appellant
personally handles hundreds of documents daily and is on the telephone for
most of the day communicating with suppliers and customers. And he had no
reason to believe that either complainant-appellee or Mr. Borgonia would
make such an insertion, especially after respondent-appellant had accepted
the fax Compromise Agreement wording and conveyed such acceptance to
complainant-appellee’s office. Respondent-appellant also had to reason to
even think that such a surreptitious insertion would be made; after all, he had
a very warm and friendly meeting with complainant-appellee and Mr.
Borgonia and came out of it with a feeling that he could trust complainant-
appellee (p. 4, Annex "C").
3.10 Hence, when respondent-appellant alleges that he was induced to sign
the hard copy Compromise Agreement through fraud and deceit, respondent-
appellant honestly believes that he was misled into signing it. He was misled
by the fact that he had been sent the fax Compromise Agreement by
complainant-appellee, that he had conveyed its acceptability to complainant-
appellee and now requested for the hard copy for execution, that he had
been led to trust that the findings and recommendation of the BIS were being
put behind them and that complainant-appellee had agreed to such a
compromise. The transmittal of the hard copy Compromise Agreement,
without any notice or mention by complainant-appellee or complainant-
appellee’s office that it contained
insertions or wording different from the fax Compromise Agreement, and on
respondent-appellant’s understanding that the wording of the hard copy
Compromise Agreement would be exactly the same as the fax Compromise
Agreement, constitutes the fraud or deceit allegedly by respondent-
appellant.47
In his rejoinder-affidavit, the private respondent explained that:
2. Again, contrary to the allegations in the Reply-Affidavits, I was unable to
review the Compromise Agreement delivered by Mr. Gutierrez on 22 April
1997 as I was busy with numerous calls and business at the time it was
delivered. Also, I had been led to believe in our meetings with Mr. Villanueva
and Mr. Borgonia that I could trust them. So, after having seen the fax
Compromise Agreement and being amenable to it, I trusted that they would
send a genuine hard copy. As it turned out, I was mistaken. 48
Moreover, even before filing the Urgent Motion and signing the Affidavit of
Merit, the private respondent tried for several times to contact the petitioner,
but the latter failed to return his calls. This reinforced the suspicion of the
private respondent that the insertion of the offending phrase was not, after
all, inadvertent but deliberate, calculated to deceive him to the prejudice of
HTC. The private respondent may be blamed for putting too much trust and
confidence on the petitioner, but he certainly cannot be indicted for perjury for
lack of probable cause.
The petitioner failed to append to his petition records of the Commission that
the private respondent appeared for HTC, on May 9, 1997, before the
Commission for the hearing on the Compromise Agreement; and showing
that the private respondent did not object thereto.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of
merit. The assailed Decision of the Court of Appeals in CA-G.R. SP No.
76999 is AFFIRMED. Costs against the petitioner.
SO ORDERED.
ROMEO J. CALLEJO, SR.
Associate Justice
Republic of the Philippines
SUPREME COURT
SECOND DIVISION
G.R. No. 139984. March 31, 2005
LEOPOLDO OANI, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
CALLEJO, SR., J.:
During the school year 1988-1989, the Panabo High School in Panabo,
Davao del Norte, headed by its Principal, Leopoldo Oani, implemented the
free secondary school program of the government. During the period of
November 1, 1988 to December 31, 1989, the high school received the
amount of ₱648,532.00 from the Department of Education, Culture and
Sports (DECS) for Maintenance and Other Operating Expenses (MOOE). 1 Of
the said amount, ₱551,439.13 was earmarked for the purchase of various
supplies, materials and equipment.2
On March 1, 1990, the DECS Secretary received a letter 3 from the Parents
Teachers Association of the Panabo High School regarding the investigation
of Principal Oani and Bonifacio Roa, the Resident Auditor regarding, among
other things, the alleged overpricing of 12 fire extinguishers for ₱15,000.00
each. The Regional Office of the COA then issued Assignment Order No. 90-
137 dated March 2, 1990 to a team of auditors, composed of Jaime P.
Naranjo, as Chairman, and Bienvenido Presilda and Carmencita Enriquez,
as members. The team had the following tasks:
To determine whether the MOOE Funds of the Panabo High School,
particularly for supplies, materials and equipment were utilized and/or
expended in accordance with existing laws, rules and regulations.
Specific Objectives:
1. To be able to identify losses of funds resulting from fraudulent
transactions.
2. To be able to determine the following:
a) Existence of fraud.
b) Extent of fraud committed.
c) Method or means by which fraud was committed.
d) Persons liable.4
The team gathered information based on interviews of the persons involved,
including Oani and Roa, and other school personnel. They also secured
documents from government agencies and private entities to verify the
purchase and delivery of fire extinguishers, as well as office and school
supplies to the high school which were charged against the MOOE. They,
likewise, conducted ocular inspections of other business establishments in
connection with the said purchases.
manufacture and refill stored pressure type (Light Pink only) mono-
ammonium phosphate for ABC fires.6
On June 27, 1989, Oani approved Purchase Order No. 2 7 for nine units of fire
extinguishers and requested Powerline to deliver the supplies. Upon delivery
thereof, Oani approved a disbursement voucher 8 in favor of the supplier for
the amount of ₱54,747.00. The supplier acknowledged receipt of the said
amount through check.9.
The members of the Audit Team that conducted a re-canvass for fire
extinguishers of the same brand and features as those supplied by Cunanan
discovered that each unit could be purchased for only ₱2,970.00, inclusive of
10% allowance. The purchase of the nine units of fire extinguishers was,
thus, overpriced by ₱23,040.00.10
Oani had also approved a Requisition and Issue Voucher for a set of Stereo
Amplifier and components described therein, thus:

The team discovered that on June 23, 1989, Oani had approved a Quantity Article
Requisition and Issue Voucher5 for the acquisition of 15 units of fire 1 set Stereo Amplifier –
extinguishers for the use of the high school as mandated by Presidential
Decree No. 1185, also known as the Fire Code of the Philippines. The Consisting of the [ff]:
supplies are described in the voucher as follows:   1 unit Sound Research
SR 100A 200 Watts
Quantity Unit Article
15 Units 10 lbs. capacity 1 unit Sound Research 6
powerline fire Mic. Mixer
extinquisher ABC
Tri-Class dry 1 set 12" 3-Way Speaker
chemical System

general purpose – 1 unit Radio Cassette –

BRAND NEW - Portable
    In compliance with
PD 1185 known as 1 unit Phono – Magnetic
Fire Code of the
Philippines. 2 units Microphone &
Microphone Stand w/
The amount of ₱55,000.00 was certified as available for the purpose. Instead Holder
of conducting a public bidding, Oani decided to purchase the fire 3 pieces Electrical Bell 8-10 inches
extinguishers from the Powerline Manufacturing Industry (Powerline, for diameter11
brevity) for ₱54,747.00. Powerline was owned by Francisco Cunanan and
had its business address at Km. 5, Carnation St., Buhangin, Davao City. The
Separate invitations to bid were sent to ASM Enterprise, Edwin Marketing
enterprise was authorized by the Department of Trade and Industry to
and RS Marketing,12 which submitted their bids to the Awards Committee
composed of Oani, as Chairman, and Domingo Pintongan, Mercita Jayoma
and Roa as members. The contract was awarded to ASM Marketing. 13
On December 28, 1989, Oani approved a Purchase Order 14 for a complete
set of amplifiers for the price of ₱35,650.00 and requested the ASM
Marketing to deliver the merchandise. As per Oani’s request, Arlene
Lomugdang, the accounting clerk of the school, issued a Certification that the
amount of ₱35,650.00 was available for the said expense. 15
Check No. 095751 was drawn against the MOOE for ₱35,650.00 in payment
of the said supplies and was remitted to the ASM Marketing, after the
disbursement voucher16 for the said amount was approved by Oani.
Canvass forms were distributed to business enterprises, including Red Lion
Marketing for the purchase of office supplies. The contract was awarded to
Red Lion Marketing for the price of ₱61,912.35. The office supplies were
delivered to the school, after which Oani approved the disbursement voucher
for the said amount which was drawn against the MOOE. 17 The supplier
thereafter received payment thereon.
In a separate transaction, Oani again approved the purchase of office
supplies chargeable against the MOOE. The contract was awarded to the
Red Lion Marketing for ₱111,912.35. The supplies were delivered by Red
Lion Marketing to the high school per Sales Invoice Nos. 486, 487, 488 and
489 on March 10, 1989. Oani approved Disbursement Voucher No. 101-
8903-01718 in favor of Red Lion Marketing for the said amount. Payment for
the merchandise was, likewise, received by the supplier.
The Auditing Team conducted a review of the prices of the stereo set and
school and office supplies, and discovered that they could be purchased for
only ₱144,621.51 instead of the ₱227,857.45 paid by the school. The
Auditing Team recommended the filing of administrative and criminal
complaints for violations of Rep. Act No. 3019 against Oani and Roa.
On March 30, 1993, Informations were filed against Oani and Roa in the
Sandiganbayan for violation of Section 3(e) of Rep. Act No. 3019. The
accusatory portion of the Information docketed as Criminal Case No. 18885
reads:
That on or about the month of December 1989, and sometime prior or
subsequent thereto, in the Municipality of Panabo, Province of Davao del
Norte, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, both public officers, LEOPOLDO OANI being then
the Secondary School Principal and BONIFACIO ROA being then the
Resident Auditor, both of the Panabo High School, Davao del Norte, while in
the performance of their official functions, committing the offense in relation
to their office and conspiring and confederating with each other, did then and
there willfully, unlawfully, criminally and with evident bad faith cause undue
injury to the Government in the following manner: in the purchase of nine (9)
fire extinguishers for the Panabo High School, accused deliberately
disregarded the requirements on public bidding by allowing the forms such
as Request for Quotations and Canvass to be accomplished by the winning
bidder notwithstanding the fact that no canvass was made at all, as [a] result
of which the nine (9) fire extinguishers were purchased from Powerline
Company at the total price of ₱54,747.00, although the real amount of such
fire extinguishers and which was supposed to have been paid was only
₱2,560.00 per unit or ₱23,040.00 in all, thereby causing undue injury to the
government in the amount of THIRTY-ONE THOUSAND SEVEN HUNDRED
PESOS (₱31,700.00), Philippine Currency.
CONTRARY TO LAW.19
The other Information, docketed as Criminal Case No. 18886, reads:
That on or about the month of December 1989, in the Municipality of Panabo,
Province of Davao del Norte, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, both public officers,
LEOPOLDO OANI being then the Secondary School Principal and
BONIFACIO ROA being then the Resident Auditor, both of Panabo High
School, Davao del Norte, while in the performance of their official functions,
committing the offense in relation to their office, and conspiring and
confederating with one another, did then and there willfully, unlawfully,
criminally and through evident bad faith cause undue injury to the
Government in the following manner: in the purchase of sound equipment,
supplies and materials for the Panabo High School, accused deliberately
disregarded the requirements on public bidding by allowing the forms such
as Request for Quotations and Canvass to be accomplished by the winning
bidders themselves notwithstanding the fact that no canvass was made at all,
as a result of which the sound equipment, office forms and office supplies
were purchased from ASM Marketing and Red Lion Marketing for a total
price of ₱227,857.45, although the real amount supposed to have been paid
was only ₱144,621.51, thus, causing undue injury to the Government in the
amount of EIGHTY-THREE THOUSAND TWO HUNDRED THIRTY-FIVE &
94/100 pesos (₱83,235.94), Philippine Currency.
CONTRARY TO LAW.20
Oani admitted that no public bidding was conducted prior to the purchase
and delivery of the fire extinguishers, but averred that he was authorized to
purchase the same by negotiation because Francisco R. Cunanan, the
proprietor of Powerline, submitted a Certification dated "January 1988"
pursuant to COA Circular No. 91-368 and Article 7, Section 442 of the
Government Auditing Rules and Regulations (GARR), stating that the
company is the only authorized and duly-licensed manufacturer and
exclusive distributor of Powerline fire extinguishers brand, and that no other
dealer, sub-dealer or distributor was appointed or authorized to sell his major
line products.21 Oani averred that a canvass of prices was done for the
purchase of the office and school supplies, and that the Bidding Committee
awarded the contract to ASM Marketing based on the abstract of bids placed
by the suppliers at the scheduled bidding. He then approved the purchase
orders for the supplies to ASM Marketing which delivered the equipment. The
same procedure was followed for the purchase of the office supplies. He
asserted that the law and the COA procedures were followed in the bidding
process and the purchase of school and office supplies.
Oani further averred that the trial court erred in relying solely on the Audit
Report of the auditing team. He asserted that it was not his duty to check
whether those participating in the bidding were bona fide dealers. As long as
such bidder could purchase the supplies and materials indicated in the
bidding request and the price is reasonable, there was sufficient basis to
award the contracts. He admitted the possibility that he had made a wrong
assessment of the bidding and canvass, but claimed that he acted in good
faith.
After trial, the Sandiganbayan promulgated a decision acquitting Roa, but
convicting Oani of the crimes charged. The fallo of the decision reads:
WHEREFORE, judgment is hereby rendered CONVICTING accused
LEOPOLDO E. OANI of the crime[s] charged in both Criminal Cases Nos.
18885 and 18886, his guilt having been proven beyond reasonable doubt.
Accordingly, in Criminal Case No. 18885, Leopoldo E. Oani is hereby
sentenced to suffer an indeterminate penalty of SIX (6) YEARS and ONE (1)
MONTH as minimum, to EIGHT (8) YEARS as maximum, and to suffer
perpetual disqualification from public office. He is ordered to restitute to the
treasurer of the Panabo National High School the amount of TWENTY-
THREE THOUSAND FORTY PESOS (₱23,040.00).
In Criminal Case No. 18886, Leopoldo E. Oani is hereby sentenced to suffer
an indeterminate penalty of SIX (6) YEARS and ONE (1) MONTH, as
minimum, to EIGHT (8) YEARS, as maximum, and to suffer perpetual
disqualification from public office. Also, he is hereby ordered to restitute the
amount of SEVENTY-THREE THOUSAND EIGHT HUNDRED SEVENTY-
EIGHT PESOS AND SEVENTY-NINE CENTAVOS (₱73,878.79) to the
treasurer of the Panabo National High School.
The actual period of accused LEOPOLDO E. OANI’s preventive
imprisonment, if any, shall be credited to the service of his sentence.
As to accused BONIFACIO ROA y GALINDO, he is hereby ACQUITTED of
the crime charged in both Criminal Cases No. 18885 and 18886.
Accordingly, the cash bond of the said BONIFACIO ROA posted in both
cases in the amount of FIFTEEN THOUSAND PESOS (₱15,000.00) each, as
evidenced by O.R. No. 2968083 and O.R. No. 2968084, is hereby ordered
CANCELLED.
Considering that the facts from which civil liability against the said Bonifacio
Roa might arise did not exist, no civil liability is imposed against him.
The Honorable Commissioner, CID, is hereby ordered to CANCEL the name
of BONIFACIO ROA y GALINDO from his Commission‘s Hold Departure List,
if any.
With costs against accused LEOPOLDO E. OANI.22
Oani, now the petitioner, filed the instant petition for review on certiorari with
this Court and raised therein the following sole issue:
WHETHER OR NOT THE GUILT OF THE PETITIONER WAS PROVEN
BEYOND REASONABLE DOUBT TO CONVICT HIM OF VIOLATION OF
SEC. 3(e) OF RA 3019, AS AMENDED.23
We note that the issues raised by the petitioner are factual. Under Rule 45 of
the Rules of Court, only questions of law may be raised that in a petition for
review on certiorari. The Court is not a trier of facts; hence, it is not its duty to
re-examine and reevaluate the evidence of the parties. Moreover, the
findings of facts of the CA or the Sandiganbayan are, as a general rule,
conclusive on the Court. And while the Court may entertain and resolve
factual issues in exceptional circumstances, 24 the petitioner in this case was
unable to establish any such exceptional circumstance.
Indeed, the Court assiduously reviewed the records and found no justification
for the modification, much less the reversal of the decision of the trial court.
The petitioner avers that the trial court erred in finding him guilty of violating
Section 3(e) of Rep. Act No. 3019 for the purchase of the fire extinguishers
without any public bidding. He maintains that since Powerline was the
exclusive manufacturer of the fire extinguishers and had not designated any
dealer or subdealer of its products as evidenced by the Certification of
Cunanan,25 he was justified in dispensing with a public bidding and to
purchase the fire extinguishers on a negotiated basis with Powerline.
The petitioner is wrong.
COA Circular No. 78-84 dated August 1, 1978, provides that negotiated
contracts may be entered into where any of the following conditions exist:
1. Whenever the supplies are urgently needed to meet an emergency which
may involve the loss of, or danger to life and/or property;
2. Whenever the supplies to be used in connection with a project or activity
which cannot be delayed without causing detriment to the public service;
3. Whenever the materials are sold by an exclusive distributor or
manufacturer who does not have subdealers selling at lower prices and for
which no suitable substitute can be obtained elsewhere at more
advantageous terms to the government;
4. Whenever the supplies under procurement have been unsuccessfully
placed on bid for at least two consecutive times, either due to lack of bidders
or the offers received in each instance equipment, the purchase of nine (9)
units fire extinguishers were exhorbitant or non-confirming to specifications;
5. In cases where it is apparent that the requisition of the needed supplies
through negotiated purchase is most advantageous to the government as
determined by the head of agency;
6. Whenever the purchase is made from an agency of the government;
26
7. Whenever the purchase is made from a foreign government.
None of the foregoing conditions existed when the petitioner purchased the
fire extinguishers on a negotiated basis from Powerline.
The petitioner did not require Cunanan to submit any certification from the
Department of Trade and Industry that he was the exclusive distributor or
manufacturer of fire extinguishers. Neither did he require Cunanan to certify
or execute an affidavit that no subdealer had been designated to sell the said
product at a lower price. The petitioner failed to ascertain whether a suitable
substitute could be obtained elsewhere, under terms more advantageous to
the government. It turned out that as declared by the trial court, another
business enterprise, Systems Products Industries, was selling the same
brand and specifications at only ₱2,900.00 per unit.
Finally, accused Oani failed to present proof that "no suitable substitute can
be obtained elsewhere at more advantageous terms to the government," as
thus, required by COA Circular 78-84, series of 1978.
Indeed, as it turned out, not only was there another manufacturer and refiller
of similar type of fire extinguisher and dry chemical used in it in Davao City,
but more importantly, Systems Products Industries, which was registered and
accredited with the DTI, as evidenced by the said certification of Syvelyn J.
Tan, Regional Director, Region XI, DTI, was selling identical items at
₱2,700.00 each, as shown by the re-canvass form dated March 13, 1990.
Crediting to this the 10% allowance authorized under COA Circular No. 85-
55, the total per unit cost is ₱2,970.00. Subtracting this figure from the unit
cost stated in the Disbursement voucher, which is ₱5,530.00, we get a
difference of ₱2,560.00, which could have been saved had accused Oani
conducted bidding or canvass, and purchased the nine (9) units of fire
extinguishers from Systems Products Industries. Consequently, in failing to
observe the requirements in government purchase, or at least, the diligence
which a similarly situated reasonable person would have taken, accused
Oani caused the Panabo High School and the government to suffer a total
amount of ₱23,040.00, in Criminal Case No. 18885. 27
To extricate himself from administrative and criminal liabilities for his acts and
omissions, the petitioner adduced in evidence a Certification purportedly
dated "January 1988," that Cunanan was the sole manufacturer/dealer of the
fire extinguishers and had not designated a sub-dealer of his products.
However, as declared by the trial court, this certification, which the petitioner
adduced in evidence, exposed his travesty of foisting a falsified document as
evidence, a felony under the last paragraph of Article 172 of the Revised
Penal Code.28 The Certification reads:
January 1988
CERTIFICATION
As Licensed Manufacturer and Exclusive Distributor
TO WHOM IT MAY CONCERN:
THIS IS TO CERTIFY that I, MR. FRANCISCO R. CUNANAN, of legal age,
Filipino, Proprietor of Powerline Manufacturing Industry, with business
address located at Km. 5, Carnation St., Buhangin, Davao City, is a duly-
licensed Manufacturer and Exclusive Distributor of POWERLINE Fire
Extinguishers, do hereby certify and attest:
1. THAT, I am the owner and chairman of Powerline Manufacturing Industry
engaged in manufacturing POWERLINE brand fire extinguishers.
2. THAT, I have not appointed or authorized any dealer, subdealer and
distributor to promote and sell our major line product, the POWERLINE fire
extinguishers in Mindanao Area or any parts/ area in the Philippines.
3. THAT, I have in my possession all legal documents proving (sic) my
Company is the only authorized and duly-licensed manufacturer and
exclusive distributor of POWERLINE fire extinguishers brand.
4. THAT, I am executing this certification in (sic) pursuant to Article 7, Section
442 of the Government Auditing Rules & Regulations (GAAM Volume I)
under COA Circular No. 91-368 governing the procurement from Duly-
licensed Manufacturers and Exclusive Distributors.
5FURTHERMORE, I am executing this certification for whatever legal
purposes it may serve our firm and the undersigned.
Powerline Manufacturing Industry
By:
(Sgd.)
FRANCISCO R. CUNANAN
Manufacturer29
The Certification is dated "January 1988," making it appear that it had been
issued before the subject fire extinguishers were purchased on June 27,
1989. However, Cunanan could not have executed the Certification in
January 1988 because paragraph 4 thereof indicates that it was issued
pursuant to "COA Circular No. 91-368." It bears stressing that COA Circular
No. 91-368 was issued only on December 19, 1991, long after Cunanan
signed the Certification. In fine, Cunanan could not possibly have issued a
certification pursuant to an administrative circular which did not as yet exist.
Hence, no such certification was issued on June 27, 1989, the most plausible
explanation being that it was executed and signed by Cunanan only after
December 19, 1991. Besides, the petitioner never submitted the certification
when the auditing team conducted its investigation. If the certification was
indeed issued as early as January 1988, the petitioner should have submitted
the same to the auditing team. The trial court saw through the petitioner’s
chicanery and declared in its decision:
Accused Oani submitted for the purpose a Certification dated 10 July 1988
issued by the Panabo Fire Station, Panabo, Davao and the Certification
dated January 1988, issued by a certain Francisco R. Cunanan, proprietor of
Powerline, that the latter is an exclusive distributor of the purchased fire
extinguishers and that no subdealer was appointed to sell the same.
After a careful evaluation of the respective evidences submitted by the
parties on this issue, the Court finds for the People and brushes aside as
incredible the claims of the defense, particularly of the accused Oani. It
appears that the theory of the accused that bidding and canvass may be
dispensed with in view of the exclusiveness of Powerline in the manufacture
and distribution of the purchased fire extinguishers, finds no leg to stand on,
at the least, or a mere afterthought, at the most. The penultimate paragraph
of the said certification of Powerline proprietor, Francisco R. Cunanan,
states,
"THAT, I am executing this Certification pursuant to Article 7, section 442 of
the Government Auditing Rules & Regulations (GAAM Volume I under COA
Circular No. 91-368 governing the procurement from Duly Licensed
Manufacturers and Exclusive Distributors)."
Indeed, the GAAM was implemented by COA Circular No. 91-368. The latter,
which was issued on December 19, 1991, provided in the last paragraph
thereof that the GAAM was to take effect on January 1, 1992. The glaring
inconsistency in the said Certification is that at the time it was issued, i.e.,
on January 1988, the GAAM was not yet in existence. Hence, contrary to the
testimony of accused Oani, the Certification of Mr. Cunanan must have been
issued only after December 19, 1991, the date of issuance of COA Circular
No. 91-368, and necessarily, after the publication of the special audit Report
(Exhibit "B").
…
Further, had the said certification been the basis of accused Oani in
approving the negotiated purchase, he could have easily presented the same
to the team in the course of their investigation. But quite to the contrary, it
was not even mentioned in the "management comment" portion of the
Report, which states:
"Management Comments:"
"When the Principal of the Panabo High School was made to comment on
this particular finding, he submitted a written justification that the purchase of
the fire extinguishers was made due to the persuasion of the Resident
Auditor assigned in that agency. As per his letter, he contended that the
purchase of the said equipment was done only and after being recommended
by the Resident Auditor."
… the purchase and delivery of the sound system, subject of the Sales Invoice
The records are bereft of even the slightest suggestion of any ill-motive on
the part of the team, which would justify Us to suspect that the members of
the team maliciously omitted to consider such an important document
constituting the defense of the accused. Thus,
…
The significance of the testimony and affidavit of state witness Edilberto
Lacdao regarding the purchase of the sound system, can hardly be ignored.
As property custodian and teacher of Panabo High School before and during
dated December 29, 1989 in the amount of ₱35,690.00, his personal
knowledge of the circumstances surrounding the acquisition cannot be
doubted, there being no showing to the contrary. Thus, the portion of his
Affidavit dated March 10, 1990, which was the basis of his testimony, states:
"That I and Mr. Paculangan, teacher, Panabo High School, Panabo, Davao
prepared the RIV for the following:

a. 1 unit amplifier 200 watts

Otherwise stated, accused Oani cannot have Us believe that Exhibit "2,"
which made reference to COA Circular No. 91-368 issued only on December
19, 1991, was already existing at the time the nine (9) fire extinguishers were b. 2 units electric bell
bought way back in 1989. Now, in the absence of a certification of
"exclusivity," it would be grossly negligent, if not naivete on the part of c. 1 unit trumpa-loudspeaker
accused Oani, to rely on the verbal representations of the Powerline
Manufacturer. Besides, this certification was an indispensable documentary d. 2 units megaphone
support in the approval of the disbursement voucher considering that the
transaction was a mere exception to the general requirement of bidding and e. 1 unit tape deck"
canvass.30
"That I gave the filled-up RIV and canvass forms to Mr. Antonio Moraleda of
On the purchase of the stereo component and school and office supplies, we ASM Enterprises who happened to be in school, thinking that he will give us
agree with the trial court’s ruling that based on the evidence, the Bids and the quotation of the items;"
Awards Committee failed to conduct any canvass and public bidding as
mandated by law:
"That the RIV was changed as what had been previously prepared and that
the delivered items found in the revised RIV were the following:
On the matter before Us, accused Oani testified that the bidding committee
was chaired by him and some instances co-chaired by Mr. Domingo
Bugtungan, with Mrs. Sayoma and Mr. Campang as members. Further, a. 1 unit sound research SR 100 A 200 Watts
during the opening of the bids, the suppliers were present. A cursory
examination of the various Invitations to Bid, which were used as bid forms, b. 1 unit sound research 6 mic mixer
the Canvass Forms, the existence of which were admitted by both accused
Oani and Roa, reveals that indeed, the signatures of the bidding committee c. 2 units L 2" 3-way speaker system
members, other than that of accused Oani, do not appear. As correctly
observed by the team in their Report, this was "unusual." The affixing d. 1 unit Radio Cassette Recorder
of signatures by the committee members are not mere ceremonial acts but
proofs of authenticity and marks [of] regularity. The absence of such
e. 1 unit Phono Magnetic
signatures not only in some, but in ALL the Invitations to Bid and Canvass
Forms indicate something more than mere honest and unintentional
omissions. These uniform omissions collectively suggest a pattern of scheme f. 2 units microphone and microphone stand with holder
tainted with ulterior motives, and altogether doubts the authenticity of the
supposed bidding or canvass. g. 3 units electrical bell 10" in diameter" x x x
"That I personally signed the RIV accepting the equipment." (Italics supplied)
Probative weight may be accorded to these declarations for its candidness
and straightforwardness. In addition, there is no showing in the record that
from the time of its execution, until he testified thereon, Edilberto Lacdao was
harboring ill-feeling or ulterior motives against both or either of the accused.
This explains the absence of the signatures of the other members of the
committee on bids and strongly supports the findings of the special audit
team that a simulated bidding and canvass took place, at least in the
purchase of sound system. In this case, what appears to have transpired was
that the RIVs containing the specific items to be purchased, were prepared
by the property officer, who then [gave] them to the favored suppliers,
together with blank canvass forms. The suppliers would then return the RIVs
and the canvass forms to the property officer, which by then, have already
been filled up with inflated quotations by other enterprises showing the
favored suppliers as having quoted the lowest prices. What follows is a
matter of clerical documentation to make it appear that bidding and canvass
was validly conducted. In the case of the sound system, it was even the
supplier, ASM Enterprises which modified the contents of the RIV. This very
same inference may be made from the testimony of Edilberto Lacdao on
cross-examination, that he could not remember Panabo High School having
conducted bidding or canvass from 1984 to 1989.
In consciously allowing the suppliers to violate the requirements of bidding
and canvass, accused Oani brazenly undermined the objective of the
process, namely, "To protect the public interest by giving the public the best
possible advantage thru open competition." Hence, not only did he act in a
"wantonly careless manner" but also in an unspeakable "breach of duty in a
flagrant and palpable" way. In full contemplation of the law, his acts
constitute gross inexcusable negligence.
As occasioned by the lack of bidding and canvass, unqualified and non-bona
fide entities that only served as brokers, gained entry and participation to the
transaction. Not only did this burden the government with additional costs, as
a result, but also exposed it to unnecessary risks and disadvantages.
Firsthand investigation and audit conducted by the COA auditors revealed
the following:
"The overpricing of purchases was obviously the result of exaggerated or
inflated price quotations made by non-bona fide dealers or ‘middlemen’ of
equipment, supplies and materials of which the agency had contracted with.
By using non-existing firms or establishment who were made to appear in the
records as the competing bidders with higher quoted prices than those
offered by the non-bona fide dealers, it had paved the way for those
unscrupulous bidders to win the bidding. This is the plain and flagrant
simulation and manipulation of canvass to the detriment of the government."
"Thus, the participation of non-bona fide dealers in the transactions of the
agency was allowed through the simulated canvass. This was further
confirmed by personnel involved in the procurement system of the agency
when they claimed during the exit Conference that usually they gave the
Request and Issue Voucher (RIV) to a certain dealer and the same dealer
should be the one to process the documents needed for the purchase. This
procedure was facilitated with the influence of some officials of the agency
who are clothed with the power to decide over and above the same involving
the MOOE funds of the agency. These officials were definitely and
particularly identified in the affidavits executed by the designated accountable
personnel in the agency which are made as appendices to this report."
"Furthermore, per inquiry made by the team, two business establishments
particularly the ASM Enterprises and the Red Lion Marketing in Davao City
who were often made as the winning bidders of the rigged and/or simulated
canvasses/biddings and had mostly supplied the agencies’ needs for office
and sound equipment, supplies and materials, were not dealers of such line
commodities. This was validated in one of our unexpected visits to their
establishments where we had observed that there were no stocks and/or
displays of such commodities or merchandise as what had been delivered to
the agency."
"Per observation, the general outside and inside appearance of these two
establishments are: Red Lion Marketing portrays an ordinary office while
ASM Enterprises appears as an ordinary residential house and yet these
establishments were considered by management in the canvassing of prices
for the procurement of equipment, supplies and materials. The team could
not find any valid reason why management failed to consider in the
canvassing of prices known establishments in the main streets of Davao
City, and those who are distinctly identified to be dealing with the sound and
office equipment, supplies and materials."
"Likewise, certification issued by the Business Bureau, Davao City (See
Appendix 2) showed that the ASM Enterprises and Red Lion Marketing
declared capitalization of ₱20,000.00 and ₱40,000.00 in 1988, respectively,
as against the contracts they entered into with the government which is
invariably more than their capitalization. Red Lion could also be declared a
non-bona fide dealer on the ground of non-payment of the business taxes for
the year 1989, thereby disproving their license to operate for that year."
(Italics supplied)
Accused Oani and Roa did not dispute the foregoing findings of the team,
much less present rebuttal evidence. Instead, they elicited the stipulation
from the prosecution "that the purchased equipment, supplies and other
materials were delivered to the Panabo High School," which the prosecution
readily admitted during the pre-trial. The fact that the subject inventories have
been delivered would have been a potent defense of the accused in the
instant case had the purchases not resulted into other forms of injuries to the
government – which brings us into the matter of overpricing. 31
As against the findings of the trial court supported by the evidence on record,
the petitioner offered nothing but his barren testimony. The petitioner also
failed to offer any evidence except his bare denial to the following findings of
the trial court:
In the purchase of the sound system, covered by the purchase order dated
December 28, 1989, signed by accused Oani, the unit price of a "microphone
stand with holder" is ₱2,295.00. The same could have been bought from the
suppliers participating in the re-canvass anywhere from ₱195.00 to ₱804.00,
enabling the government to save by more than 50%. Similarly, a "10 in.
diameter electronic bell" was bought from ASM Marketing for ₱525.00 per
unit, compared to the selling prices of participating suppliers in the re-
canvass, ranging from ₱185.00 to ₱245.00 only, showing more than 50%
difference.
In the acquisition of various office supplies and equipment by Panabo High
School from Red Lion Marketing in the total amount of ₱111,912.35, as
shown in the undated purchase order issued by accused Oani and the
corresponding Sales Invoice of Red Lion Marketing dated March 10, 1989
the price of one steel safe was ₱11,600.00. After the re-canvass, it was
discovered that similar items may be bought from reputable suppliers in
Davao City from ₱7,800.00 to ₱8,620.00 only. Likewise, a unit of "steel
cabinet combination four drawers" purchased from Red Lion Marketing for
₱11,000.00 was sold by reputable suppliers anywhere from ₱5,000.00 to
₱6,000.00 only. Again, a "steel cabinet four drawers," sold for ₱4,400.00 by
Red Lion, was quoted by bona fide suppliers from ₱2,250.00 to ₱2,750.00.
This rate of overpricing very well applies to other items in the said purchase
order and sales invoice.
In the subsequent purchase of various school supplies in the total amount of
₱37,686.00 on or about December 26, 1989 again, from ASM Enterprises,
enumerated in its Sales Invoice dated December 22, 1989, we find further
inflated prices. Thus, while the 500 pieces of "long brown folder" were sold by
ASM Enterprises at ₱2.25 each, other reputable suppliers in Davao City were
selling the same from ₱1.50 to ₱1.90 each, as of March 21, 1990. In the
same vein, ASM Enterprises sold 300 boxes of "Venus Yellow Enamel
Chalk" to Panabo High School for ₱28.50 per box. After the re-canvass, it
was found out that the same item may be bought for ₱25.00 per box. Again,
ASM Enterprises sold to Panabo High School 10 dozens of "Max Staple Wire
No. 10" for ₱79.80 per dozen, while other suppliers were selling them at
₱37.00 to ₱39.00 per dozen, for a difference of more than 50%. 32
In Danville Maritime, Inc. v. Commission on Audit,33 the Court emphasized
that –
… By its very nature and characteristic, a competitive public bidding aims to
protect the public interest by giving the public the best possible advantages
thru open competition. Another self-evident purpose of public bidding is to
avoid or preclude suspicion of favoritism and anomalies in the execution of
public contracts. Public bidding of government contracts and for disposition of
government assets have the same purpose and objectives. Their only
difference, if at all, is that in the public bidding for public contracts the award
is generally given to the lowest bidder while in the disposition of government
assets the award is to the highest bidder.34
In a public bidding, there must be competition that is legitimate, fair and
honest. The three principles of a public bidding are the offer to the public; an
opportunity for competition; and a basis for exact comparison of bids. 35 A
contract granted without the competitive bidding required by law is void, and
the party to whom it is awarded cannot benefit from it. 36
In the present case, the petitioner purchased the fire extinguishers and office
and school supplies without the benefit of a public bidding, in gross and
evident bad faith, resulting in the considerable overpricing of the fire
extinguishers and the supplies, to the gross prejudice of the government.
In sum then, the decision of the trial court is in accord with the law and the
evidence.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. Cost against
the petitioner.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 88017             January 21, 1991

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LO HO WING alias PETER LO, LIM CHENG HUAT alias ANTONIO LIM
and REYNALDO TIA y SANTIAGO, defendants. LO HO
WING alias PETER LO, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Segundo M. Gloria, Jr. for defendant-appellant.

GANCAYCO, J.:

This case involves the unlawful transport of metamphetamine, a regulated

drug under Republic Act No. 6425, as amended. One of its derivatives is
metamphetamine hydrochloride, notoriously known in street parlance as
"shabu" or "poor man's cocaine."

Appellant Peter Lo, together with co-accused Lim Cheng Huat alias Antonio

Lim and Reynaldo Tia, were charged with a violation of Section 15, Article III
of the aforementioned statute otherwise known as the Dangerous Drugs Act
of 1972, before Branch 114 of the Regional Trial Court of Pasay City. Only
appellant and co-accused Lim Cheng Huat were convicted. They were
sentenced to suffer life imprisonment, to pay a fine of P25,000.00 each, and
to pay the costs. Their co-accused Reynaldo Tia was discharged as a state
witness. The pertinent portion of the information reads as follows:

That on or about the 6th day of October, 1987, in Pasay City, Metro
Manila, and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring and confederating together and mutually
helping one another, without authority of law, did then and there
willfully, unlawfully and feloniously deliver, dispatch or transport 56
teabags of Metamphetamine, a regulated drug.
 Contrary to law.1
The antecedent facts of the case as found by the trial court are as follows:
In July 1987, the Special Operations Group, a unit of the Criminal
Investigation Service (CIS) of the Philippine Constabulary (PC), received a tip
from one of its informers about an organized group engaged in the
importation of illegal drugs, smuggling of contraband goods, and gunrunning.
After an evaluation of the information thus received, a project codenamed
"OPLAN SHARON 887" was created in order to bust the suspected
syndicate.
As part of the operations, the recruitment of confidential men and "deep
penetration agents' was carried out to infiltrate the crime syndicate. One of
those recruited was the discharged accused, Reynaldo Tia (hereinafter
referred to as Tia).
Tia was introduced to his co-accused Lim Cheng Huat (hereinafter referred to
as Lim) by another confidential agent named George on August 3, 1987. Lim
expressed a desire to hire a male travelling companion for his business nips
abroad. Tia offered his services and was hired.
Lim and Tia met anew on several occasions to make arrangements for a trip
to China. In the course of those meetings, Tia was introduced to Peter Lo
(hereinafter referred to as appellant), whom Tia found out to be the person he
was to accompany to China in lieu of Lim.
As a "deep penetration agent," Tia regularly submitted reports of his
undercover activities on the suspected criminal syndicate. Meanwhile, the
officer-in-charge of OPLAN SHARON 887, Captain Luisito Palmera, filed with
his superiors the reports submitted to him, and officially informed the
Dangerous Drugs Board of Tia's activities.
On October 4, 1987, appellant and Tia left for Hongkong on board a
Philippine Airlines flight. Before they departed, Tia was able to telephone
Captain Palmera to inform him of their expected date of return to the
Philippines as declared in his round-trip plane ticket-October 6, 1987 at two
o'clock in the afternoon.
The day after they arrived in Hongkong, Tia and appellant boarded a train
bound for Guangzhou, in the People's Republic of China. Upon arriving
there, they checked in at a hotel, and rested for a few hours. The pair
thereafter went to a local store where appellant purchased six (6) tin cans of
tea. Tia saw the paper tea bags when the cans were opened for examination
during the purchase. Afterwards, they returned to the hotel. Appellant kept
the cans of tea in his hotel room. That evening, Tia went to appellant's room
to talk to him. Upon entering, he saw two other men with appellant. One was
fixing the tea bags, while the other was burning substance on a piece of
aluminum foil using a cigarette lighter. Appellant joined the second man and
sniffed the smoke emitted by the burning substance. Tia asked the latter
what they would be bringing back to the Philippines. He was informed that
their cargo consisted of Chinese drugs. Tia stayed in the room for about
twenty minutes before going back to his room to sleep.
The next day, October 6,1987, the two returned to Manila via a China Airlines
flight. Appellant had with him his red traveling bag with wheels. Before
departing from Guangzhou however, customs examiners inspected their
luggage. The tin cans of tea were brought out from the traveling bag of
appellant. The contents of the cans were not closely examined, and appellant
was cleared along with Tia.
The plane landed at the Ninoy Aquino International Airport (NAIA), then
named Manila International Airport, on schedule. Lim met the newly-arrived
pair at the arrival area. Lim talked to appellant, while Tia, upon being
instructed, looked after their luggage. After Lim and appellant finished their
conversation, the latter hailed a taxicab. Appellant and Tia boarded the
taxicab after putting their luggage inside the back compartment of the
vehicle. Lim followed in another taxi cab.
Meanwhile, a team composed of six operatives headed by Captain Palmera
was formed to act on the tip given by Tia. On the expected date of arrival, the
team proceeded to the NAIA. Captain Palmera notified the Narcotics
Command (NARCOM) Detachment at the airport for coordination. After a
briefing, the operatives were ordered to take strategic positions around the
arrival area. Two operatives stationed just outside the arrival area were the
first ones to spot the suspects emerging therefrom. Word was passed on to
the other members of the team that the suspects were in sight. Appellant was
pulling along his red traveling bag while Tia was carrying a shoulder bag. The
operatives also spotted Lim meeting their quarry.
Upon seeing appellant and Tia leave the airport, the operatives who first
spotted them followed them. Along Imelda Avenue, the car of the operatives
overtook the taxicab ridden by appellant and Tia and cut into its path forcing
the taxi driver to stop his vehicle. Meanwhile, the other taxicab carrying Lim
sped away in an attempt to escape. The operatives disembarked from their
car, approached the taxicab, and asked the driver to open the baggage
compartment. Three pieces of luggage were retrieved from the back
compartment of the vehicle. The operatives requested from the suspects
permission to search their luggage. A tin can of tea was taken out of the red
traveling bag owned by appellant. Sgt. Roberto Cayabyab, one of the
operatives, pried the lid open, pulled out a paper tea bag from the can and
pressed it in the middle to feel its contents. Some crystalline white powder
resembling crushed alum came out of the bag. The sergeant then opened the
tea bag and examined its contents more closely. Suspecting the crystalline
powder to be a dangerous drug, he had the three traveling bags opened for
inspection. From the red traveling bag, a total of six (6) tin cans were found,
including the one previously opened. Nothing else of consequence was
recovered from the other bags. Tia and appellant were taken to the CIS
Headquarters in Quezon City for questioning.
Meanwhile, the second taxicab was eventually overtaken by two other
operatives on Retiro Street, Quezon City. Lim was likewise apprehended and
brought to the CIS Headquarters for interrogation.
During the investigation of the case, the six tin cans recovered from the
traveling bag of appellant were opened and examined. They contained a total
of fifty-six (56) paper tea bags with white crystalline powder inside instead of
tea leaves.
The tea bag opened by Sgt. Cayabyab during the search and seizure was
sent to the PC-INP Crime Laboratory for preliminary examination. Tests
conducted on a sample of the crystalline powder inside the tea bag yielded a
positive result that the specimen submitted was metamphetamine. Samples
from each of the fifty-six (56) tea bags were similarly tested. The tests were
also positive for metamphetamine. Hence, the three suspects were indicted.
In rendering a judgment of conviction, the trial court gave full credence to the
testimonies of the government anti-narcotics operatives, to whom the said
court applied the well-settled presumption of regularity in the performance of
official duties.
Appellant now assigns three errors alleged to have been committed by the
trial court, namely:
I.
THE TRIAL COURT ERRED IN NOT DECLARING THE SEARCH
AND SEIZURE ON THE ACCUSED AS ILLEGAL.
II.
THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY
OF DELIVERING, DISPATCHING OR TRANSPORTING
METAMPHETAMINE, A REGULATED DRUG.
III.
THE TRIAL COURT ERRED IN DISCHARGING REYNALDO TIA TO
TESTIFY FOR THE PROSECUTION.2
We affirm.
Anent the first assignment of error, appellant contends that the warrantless
search and seizure made against the accused is illegal for being violative of
Section 2, Article III of the Constitution. He reasons that the PC-CIS officers
concerned could very well have procured a search warrant since they had
been informed of the date and time of a arrival of the accused at the NAIA
well ahead of time, specifically two (2) days in advance. The fact that the
search and seizure in question were made on a moving vehicle, appellant
argues, does not automatically make the warrantless search herein fall within
the coverage of the well-known exception to the rule of the necessity of a
valid warrant to effect a search because, as aforementioned, the anti-
narcotics agents had both time and opportunity to secure a search warrant.
The contentions are without merit. As correctly averred by appellee, that
search and seizure must be supported by a valid warrant is not an absolute
rule. There are at least three (3) well-recognized exceptions thereto. As set
forth in the case of Manipon, Jr. vs. Sandiganbayan,3 these are: [1] a search
incidental to an arrest, [2] a search of a moving vehicle, and [3] seizure of
evidence in plain view (emphasis supplied). The circumstances of the case
clearly show that the search in question was made as regards a moving
vehicle. Therefore, a valid warrant was not necessary to effect the search on
appellant and his co-accused.
In this connection, We cite with approval the averment of the Solicitor
General, as contained in the appellee's brief, that the rules governing search
and seizure have over the years been steadily liberalized whenever a moving
vehicle is the object of the search on the basis of practicality. This is so
considering that before a warrant could be obtained, the place, things and
persons to be searched must be described to the satisfaction of the issuing
judge—a requirement which borders on the impossible in the case of
smuggling effected by the use of a moving vehicle that can transport
contraband from one place to another with impunity. 4
We might add that a warrantless search of a moving vehicle is justified on the
ground that "it is not practicable to secure a warrant because the vehicle can
be quickly moved out of the locality or jurisdiction in which the warrant must
be sought."5
In the instant case, it was firmly established from the factual findings of the
trial court that the authorities had reasonable ground to believe that appellant
would attempt to bring in contraband and transport it within the country. The
belief was based on intelligence reports gathered from surveillance activities
on the suspected syndicate, of which appellant was touted to be a member.
Aside from this, they were also certain as to the expected date and time of
arrival of the accused from China. But such knowledge was clearly
insufficient to enable them to fulfill the requirements for the issuance of a
search warrant. Still and all, the important thing is that there was probable
cause to conduct the warrantless search, which must still be present in such
a case.
The second assignment of error is likewise lacking in merit. Appellant was
charged and convicted under Section 15, Article III of Republic Act No. 6425,
as amended, which reads:
The penalty of life imprisonment to death and a fine ranging from
twenty thousand to thirty thousand pesos shall be imposed upon any
person who, unless authorized by law, shall sell, dispose, deliver,
transport or distribute any regulated drug (emphasis supplied).
The information charged the accused of delivering, transporting or
dispatching fifty-six (56) tea bags containing metamphetamine, a regulated
drug. The conjunction "or' was used, thereby implying that the accused were
being charged of the three specified acts in the alternative. Appellant argues
that he cannot be convicted of "delivery" because the term connotes a source
and a recipient, the latter being absent under the facts of the case. It is also
argued that "dispatching' cannot apply either since appellant never sent off or
disposed of drugs. As for "transporting," appellant contends that he cannot
also be held liable therefor because the act of transporting necessarily
requires a point of destination, which again is non- existent under the given
facts.
The contentions are futile attempts to strain the meaning of the operative acts
of which appellant and his co-accused were charged in relation to the facts of
the case. There is no doubt that law enforcers caught appellant and his co-
accused in flagrante delicto of transporting a prohibited drug. The term
"transport" is defined as "to carry or convey from one place to another." 6 The
operative words in the definition are "to carry or convey." The fact that there
is actual conveyance suffices to support a finding that the act of transporting
was committed. It is immaterial whether or not the place of destination is
reached. Furthermore, the argument of appellant gives rise to the illogical
conclusion that he and his co- accused did not intend to bring the
metamphetamine anywhere, i.e. they had no place of destination.
The situation in the instant case is one where the transport of a prohibited
drug was interrupted by the search and arrest of the accused. Interruption
necessarily infers that an act had already been commenced. Otherwise,
there would be nothing to interrupt.
Therefore, considering the foregoing, since the information included the acts
of delivery, dispatch or transport, proof beyond reasonable doubt of the
commission of any of the acts so included is sufficient for conviction under
Section 15, Article III of Republic Act No. 6425, as amended.
Moreover, the act of transporting a prohibited drug is a malum
prohibitum because it is punished as an offense under a special law. It is a
wrong because it is prohibited by law. Without the law punishing the act, it
cannot be considered a wrong. As such, the mere commission of said act is
what constitutes the offense punished and suffices to validly charge and
convict an individual caught committing the act so punished, regardless of
criminal intent.7
As to the third assigned error, appellant contests the discharge of accused
Reynaldo Tia to testify for the prosecution on the ground that there was no
necessity for the same. Appellant argues that deep penetration agents such
as Tia "have to take risks and accept the consequences of their
actions."8 The argument is devoid of merit. The discharge of accused Tia was
based on Section 9, Rule 119 of the Rules of Court, which reads in part:
Sec. 9. Discharge of the accused to be state witness. — When two
or more persons are jointly charged with the commission of any
offense, upon motion of the prosecution before resting its case,  the
court may direct one or more of the accused to be discharged with
their consent so that they may be witnesses for the state . . .
(emphasis supplied).
As correctly pointed out by the Solicitor General, the discharge of an accused
is left to the sound discretion of the lower court.1âwphi1 The trial court has
the exclusive responsibility to see that the conditions prescribed by the rule
exist.9 In the instant case, appellant does not allege that any of the conditions
for the discharge had not been met by the prosecution. Therefore, the
discharge, as ordered by the trial court, stands.
Finally, appellant alleges that the testimony of Sgt. Roberto Cayabyab
regarding the facts surrounding the commission of the offense proves that
the discharge of accused Tia is unnecessary. The allegation is baseless.
Appellant himself admits that the sergeant's testimony corroborates the
testimony of the discharged accused. The fact of corroboration of the
testimonies bolsters the validity of the questioned discharge precisely
because paragraph (a) of the aforequoted rule on discharge requires that the
testimony be substantially corroborated in its material points. The
corroborative testimony of the PC-CIS operative does not debunk the claim
of the prosecution that there is absolute necessity for the testimony of
accused Tia.

WHEREFORE, the decision appealed from is hereby AFFIRMED in toto and

the appeal is thereby DISMISSED. No costs.
Republic of the Philippines
SO ORDERED. SUPREME COURT
Manila
Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.
FIRST DIVISION

G.R. No. 196966               October 23, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
MICHAEL MAONGCO y YUMONDA and PHANS BANDALI y
SIMPAL, Accused-Appellants.

DECISION

LEONARDO-DE CASTRO, J.:

On appeal is the Decision1 dated September 6, 2010 of the Court of Appeals

in CA-G.R. CR.-H.C. No. 03505, which affirmed in toto the Decision 2 dated
June 11, 2008 of the Regional Trial Court RTC), Branch 82, Quezon City, in
Criminal Case Nos. Q-04-127731-32, finding accused-appellants Michael Y.
Maongco Maongco) and Phans S. Bandali Bandali) guilty beyond reasonable
doubt of violating Article II, Section 5 of Republic Act No. 9165, otherwise
known as the Dangerous Drugs Act of 2002.

Accused-appellants were separately charged for illegally dispensing,

delivering, transporting, distributing, or acting as brokers of dangerous drugs
under the following amended Informations:

[Criminal Case No. Q-04-127731]

The undersigned accuses MICHAEL MAONGCO y YUMONDA for Violation

of Section 5, Article II, R.A. 9165 (Comprehensive Dangerous Drugs Act of
2002), committed as follows:
That on or about the 19th day of June, 2004 in Quezon City, Philippines, the
said accused, not being authorized by law to sell, dispense, deliver, transport
or distribute any dangerous drug, did, then and there willfully and unlawfully
dispense, deliver, transport, distribute or act as broker in the said transaction,
four point fifty (4.50) grams of Methylamphetamine hydrochloride, a
dangerous drug.3
[Criminal Case No. Q-04-127732]
The undersigned accuses PHANS BANDALI y SIMPAL for Violation of
Section 5, Article II, R.A. 9165 (Comprehensive Dangerous Drugs Act of
2002), committed as follows:
That on or about the 19th day of June, 2004 in Quezon City, Philippines, the
said accused, not being authorized by law to sell, dispense, deliver, transport
or distribute any dangerous drug, did, then and there willfully and unlawfully
dispense, deliver, transport, distribute or act as broker in the said transaction,
four point forty-five (4.45) grams of Methylamphetamine hydrochloride, a
dangerous drug.4
When arraigned on September 13, 2004, both accused-appellants pleaded
not guilty.5
During trial, the prosecution presented the testimonies of Police Officer (PO)
1 Dominador Arugay (Arugay)6 and PO2 Vener Ong (Ong), 7 who arrested
accused-appellants. The testimonies of Police Inspector (P/Insp.) Erickson
Calabocal (Calabocal),8 the forensic chemist, and Senior Police Officer
(SPO) 1 Adonis Sugui (Sugui), 9 the post investigating officer, were dispensed
with after the defense agreed to a stipulation of the substance of the two
witnesses’ testimonies, but with the qualification that said witnesses had no
personal knowledge of the circumstances surrounding accused-appellants’
arrest and the source of the plastic sachets of shabu.
The object and documentary evidence of the prosecution, all admitted by the
RTC,10 consisted of the Request for Laboratory Examination; 11 an Improvised
Envelope containing the plastic sachets of suspected methamphetamine
hydrochloride, more popularly known as shabu; 12 P/Insp. Calabocal’s
Chemistry Report No. D-360-04;13 P/Insp. Calabocal’s Certification14 stating
that the contents of the plastic sachets tested positive for methamphetamine
hydrochloride; PO1 Arugay’s Sinumpaang Salaysay; 15 PO2 Ong’s
Sinumpaang Salaysay;16 and the Referral of the case to the Prosecutor’s
Office of Quezon City.17
The prosecution’s evidence presented the following version of the events
leading to accused-appellants’ arrests.
Based on a tip from a confidential informant, the Station Anti-Illegal Drugs of
the Navotas City Police conducted a special operation on June 18, 2004,
which resulted in the arrest of a certain Alvin Carpio (Carpio) for illegal
possession of dangerous drugs and seizure from Carpio’s possession of 15
heat-sealed plastic sachets containing shabu . When questioned by the
police, Carpio admitted that the shabu came from accused-appellant
Maongco. Consequently, the police planned an operation to apprehend
accused-appellant Maongco and formed a team for this purpose, composed
of PO1 Arugay, PO2 Ong, PO2 Geoffrey Huertas (Huertas), and PO1 Jesus
del Fierro (Del Fierro).
On June 19, 2004, after coordination with the Philippine Drug Enforcement
Agency (PDEA), the police team was briefed about the operation. The police
team allowed Carpio to talk to accused-appellant Maongco on the cellphone
to arrange for a sale transaction of shabu. At around 10:30 in the morning,
the police team, accompanied and guided by Carpio, proceeded to the
vicinity of Quezon corner Roces Avenues in Quezon City frequented by
accused-appellant Maongco. PO1 Arugay, PO2 Ong, and Carpio rode a taxi,
while PO1 Del Fierro and PO2 Huertas followed in an owner-type jeep.
Carpio spotted accused-appellant Maongco at a waiting shed and pointed
out the latter to the police. PO2 Arugay alighted from the taxi and
approached accused-appellant Maongco. PO2 Arugay introduced himself to
accused-appellant Maongco as Carpio’s cousin, and claimed that Carpio was
sick and could not be there personally. PO2 Arugay then asked from
accused-appellant Maongco for Carpio’s order of " dalawang bulto."
Accused-appellant Maongco drew out from his pocket a sachet of shabu and
showed it to PO2 Arugay. When PO2 Arugay got hold of the sachet of
shabu , he immediately revealed that he was a police officer, arrested
accused-appellant Maongco, and apprised the latter of his constitutional
rights.
When the police team questioned accused-appellant Maongco as to the
other " bulto " of shabu Carpio had ordered, accussed-appellant disclosed
that the same was in the possession of accused-appellant Bandali, who was
then at Jollibee Pantranco branch along Quezon Avenue. The police team,
with Carpio and accused-appellant Maongco, went to the said restaurant
where accused-appellant Maongco identified accused-appellant Bandali to
the police team as the one wearing a blue shirt. PO2 Ong approached
accused-appellant Bandali and demanded from the latter the other half of the
drugs ordered. Accused-appellant Bandali voluntarily handed over a sachet
of shabu to PO2 Ong. Thereafter, PO2 Ong apprised accused-appellant
Bandali of his constitutional rights and arrested him.
The police team first brought accused-appellants to the East Avenue Medical
Center for medical examination to prove that accused-appellants sustained
no physical injuries during their apprehension. Afterwards, the police team
brought accused-appellants to the police station in Navotas City. At the police
station, PO1 Arugay marked the sachet of shabu from accused-appellant
Maongco with the initials "MMY," while PO2 Ong marked the sachet of shabu
from accused-appellant Bandali with the initials "PBS." PO1 Arugay and PO2
Ong turned over the two sachets of shabu to the custody of PO1 Del Fierro
and SPO1 Sugui. The sachets of shabu were then inventoried, photographed
in the presence of accused-appellants, and submitted for laboratory
examination.
P/Insp. Calabocal received the sachets of shabu for chemical analysis.
P/Insp. Calabocal’s examination revealed that the contents of the sachets
marked "MMY" and "PBS" weighed 4.50 grams and 4.45 grams, respectively,
and both tested positive for methamphetamine hydrochloride.
When the defense’s turn to present evidence came, the accused-appellants
took the witness stand.18 Accused-appellants asserted that they did not know
each other prior to their arrests and they were illegally arrested, extorted for
money, physically beaten, and framed-up by the police.
On June 11, 2008, the RTC promulgated its Decision finding accused-
appellants guilty beyond reasonable doubt of illegally selling shabu,
penalized under Article II, Section 5 of Republic Act No. 9165, to wit:
WHEREFORE, premises considered, judgment is hereby rendered finding
accused MICHAEL MAONGCO y YUMONDA, accused in Ciminal Case No.
Q-04-127731 and PHANS BANDALI y SIMPAL, accused in Ciminal Case No.
Q-04-127732, both guilty beyond reasonable doubt of violations of Section 5,
Article II of R.A. No. 9165. Accordingly, they are hereby sentenced to suffer
the penalty of LIFE IMPRISONMENT and each to pay a fine in the amount of
Five Hundred Thousand (₱500,000.00) Pesos.19
Accused-appellants appealed to the Court of Appeals. In their
Brief,20 accused-appellants imputed the following errors on the part of the
RTC:
I In its Decision dated September 6, 2010, the Court of Appeals found no
THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND
CREDENCE TO THE PROSECUTION’S EVIDENCE NOTWITHSTANDING
ITS FAILURE TO PROVE THE IDENTITY AND INTEGRITY OF THE
SHABU ALLEGEDLY SEIZED.
II
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANTS DESPITE THE FAILURE TO COMPLY WITH THE
"OBJECTIVE TEST" IN BUY-BUST OPERATIONS.
III
THE TRIAL COURT ERRED IN UPHOLDING THE PRESUMPTION OF
REGULARITY IN THE PERFORMANCE OF OFFICIAL DUTY BY THE
POLICE OFFICERS DESPITE THE PATENT IRREGULARITIES IN THE
BUY-BUST OPERATION.
IV
THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-
APPELLANTS DESPITE THE PROSECUTION’S FAILURE TO PROVE
THEIR GUILT BEYOND REASONABLE DOUBT.21
Plaintiff-appellee countered in its Brief22 that:
I.
THE COURT A QUO PROPERLY ADMITTED THE SHABU IN EVIDENCE.
II.
THERE WAS A LEGITIMATE "BUY-BUST" OPERATION IN THE CASE AT
BAR WHICH RESULTED IN THE LAWFUL ARREST, PROSECUTION AND
CONVICTION OF APPELLANTS.
III.
THE COURT A QUO PROPERLY FOUND APPELLANTS GUILTY BEYOND
REASONABLE DOUBT OF THE CRIMES CHARGED.23
palpable error in the judgment of conviction rendered by the RTC against
accused-appellants and rejected accused-appellants’ argument that the
prosecution failed to establish the factual details constituting the essential
elements of an illegal sale of dangerous drugs. According to the appellate
court, Article II, Section 5 of Republic Act No. 9165 penalizes not only those
who sell dangerous drugs, but also those who "trade, administer, dispense,
deliver, give away to another, distribute, dispatch in transit or transport any
dangerous drug," without being authorized by law. In this case, the
prosecution was able to prove with moral certainty that accused-appellants
were caught in the act of illegally delivering, giving away to another, or Q. After that, you immediately arrested him?
distributing sachets of shabu. In the end, the Court of Appeals decreed:
A. Yes, sir. I first asked my order of shabu.
WHEREFORE, premises considered, the instant appeal is DENIED. The
assailed decision of the Regional Trial Court of Quezon City, Branch 82 Q. In your affidavit, you testified that you asked one "bulto" of shabu?
dated June 11, 2008 convicting appellants for violation of Section 5, Article II
of Republic Act No. 9165 is hereby AFFIRMED. No costs.24 A. More or less five grams of shabu, sir.

Hence, this appeal. Q. Did the accused ask any in exchange of that shabu?

Since accused-appellants had opted not to file any supplemental briefs, the A. No, sir.
Court considers the same issues and arguments raised by accused-
appellants before the Court of Appeals.
Q. Immediately, you arrested him already?
Accused-appellants stress that for a judgment of conviction for the illegal sale
of dangerous drugs, the identities of the buyer and seller, the delivery of the A. After I got my order from him, I introduced myself as policeman, sir.
drugs, and the payment in consideration thereof, must all be duly proven.
However, accused-appellants lament that in their case, the prosecution failed COURT:
to establish by evidence these essential elements of the alleged sale of
shabu. Accused-appellants add that the prosecution was also unable to show Who gave you that one "bulto" of shabu?
that the integrity and evidentiary value of the seized shabu had been
preserved in accordance with Section 21(a) of the Implementing Rules of A. I have the money but he did not ask it from me, your Honor.
Republic Act No. 9165. Accused-appellants point out that PO1 Arugay did
not mention the time and place of the marking of the sachet of shabu
Q. Was there any arrangement between you and Maongco as to how much
purportedly sold to him by accused-appellant Maongco; while PO2 Ong
this one "bulto" cost? A. Alvin and Maongco were the ones who talked.
admitted that he marked the sachet of shabu he received from accused-
appellant Bandali only at the police station. Both PO1 Arugay and PO2 Ong
merely provided an obscure account of the marking of the sachets of shabu, xxxx
falling short of the statutory requirement that the marking of the seized drugs
be made immediately after seizure and confiscation. Q. Meaning to say, it was Maongco and Alvin who talked in Quezon Avenue?

The appeal is partly meritorious. A. They talked over the cellphone.

In the case of accused-appellant Maongco, the Court finds that the RTC and
the Court of Appeals both erred in convicting him in Criminal Case No. Q-04-
127731 for the illegal sale of shabu under Article II, Section 5 of Republic Act
No. 9165. The evidence on record does not support accused-appellant
Maongco’s conviction for said crime, especially considering the following
answers of prosecution witness PO1 Arugay during the latter’s cross-
examination, practically admitting the lack of consideration/payment for the
sachet of shabu:
Q. What did you tell Michael Maongco?
xxxx
Q. But you did not hear the conversation?
A. No, sir.25 (Emphases supplied.)
Inarguably, consideration/payment is one of the essential elements of illegal
sale of dangerous drugs, without which, accused-appellant Maongco’s
conviction for said crime cannot stand. Nonetheless, accused-appellant
Maongco is still not absolved of criminal liability.

A. I introduced myself as the cousin of Alvin, sir.

A review of the Information in Criminal Case No. Q-04-127731 readily reveals
that accused-appellant Maongco was not actually charged with illegal sale of
shabu. Said Information specifically alleged that accused-appellant Maongco
"willfully and unlawfully dispensed, delivered, transported, distributed or
acted as broker" in the transaction involving 4.50 grams of shabu. These acts
are likewise punishable under Article II, Section 5 of Republic Act No. 9165.
Article II, Section 5 of Republic Act No. 9165 provides:
SECTION 5. Sale, Trading, Administration, Dispensation, Delivery,
Distribution and Transportation of Dangerous Drugs and/or Controlled
Precursors and Essential Chemicals. – The penalty of life imprisonment to
death and a fine ranging from Five hundred thousand pesos (₱500,000.00) to
Ten million pesos (₱10,000,000.00) shall be imposed upon any person, who,
unless authorized by law, shall sell, trade, administer, dispense, deliver, give
away to another, distribute, dispatch in transit or transport any dangerous
drug, including any and all species of opium poppy regardless of the quantity
and purity involved, or shall act as a broker in any of such transactions.
(Emphasis supplied.)
Several of the acts enumerated in the foregoing provision have been
explicitly defined under Article I, Section 3 of the same statute, viz:
Section 3. Definitions. As used in this Act, the following terms shall mean:
(a) Administer. – Any act of introducing any dangerous drug into the body of
any person, with or without his/her knowledge, by injection, inhalation,
ingestion or other means, or of committing any act of indispensable
assistance to a person in administering a dangerous drug to himself/herself
unless administered by a duly licensed practitioner for purposes of
medication.
xxxx
(k) Deliver. – Any act of knowingly passing a dangerous drug to another,
personally or otherwise, and by any means, with or without consideration.
xxxx
(m) Dispense. – Any act of giving away, selling or distributing medicine or
any dangerous drug with or without the use of prescription.
xxxx
(ii) Sell. – Any act of giving away any dangerous drug and/or controlled
precursor and essential chemical whether for money or any other
consideration.
(jj) Trading. – Transactions involving the illegal trafficking of dangerous drugs
and/or controlled precursors and essential chemicals using electronic
devices such as, but not limited to, text messages, e-mail, mobile or
landlines, two-way radios, internet, instant messengers and chat rooms or
acting as a broker in any of such transactions whether for money or any other
consideration in violation of this Act. (Emphasis supplied.)
As for the illegal delivery of dangerous drugs, it must be proven that (1) the
accused passed on possession of a dangerous drug to another, personally or
otherwise, and by any means; (2) such delivery is not authorized by law; and
(3) the accused knowingly made the delivery. Worthy of note is that the
delivery may be committed even without consideration.
It is not disputed that accused-appellant Maongco, who was working as a taxi
driver at the time of his arrest, 26 had no authority under the law to deliver any
dangerous drug. The existence of the two other elements was established by
PO1 Arugay’s testimony that provided the following details:
FISCAL ANTERO:
Q. Why did you arrest this certain Alvin?
A. For violation of R.A. 9165, sir.
Q. What happened when you arrested this alias Alvin?
A. We investigated on where the shabu he was selling came from.
Q. What was the result of your inquiry as to the source of the shabu?
A. We learned that the source came from a certain Michael, sir.
Q. When you found out that the source came from a certain Michael, what
did you do, Mr. Witness?
A. We formed a team and we made a Pre-Operation Report, sir.
Q. Aside from mentioning about the source as Michael, what are the other
details?
A. No more, sir. On June 19, 2004 at about 10:30 a.m., our group was
dispatched in Quezon Avenue corner Roces Avenue.
xxxx
Q. What happened when you arrived in that area?
A. We went to the place where Michael is always staying and when he
arrived he was pointed by Alvin, sir.
Q. What did you do when Alvin pointed to Michael?
A. I pretended to be the cousin of Alvin who was going to get the order.
Q. What happened when you approached this Michael?
A. I asked from him my order of "dalawang bulto" and he asked me who am I
and I told him that I am the cousin of Alvin and that Alvin cannot come
because he was sick, sir.
Q. What happened after you said that?
A. I asked from him my order and then he took something out from his pocket
and he showed it to me. It was a shabu, sir.
Q. What happened next?
A. After I got the order we arrested Michael, sir.
xxxx
ATTY. BARTOLOME:
Q. What was Maongco doing at that time?
A. He was staying in a waiting shed along Quezon Avenue, sir.
Q. What was he doing there?
A. He was waiting for somebody, sir.
Q. Immediately you approached Maongco?
A. He was pointed by Alvin, sir. I alighted from the taxi.
Q. What was his reaction when you approached him?
A. He was a bit surprised, sir.
Q. What did you tell Michael Maongco?
A. I introduced myself as the cousin of Alvin, sir.
Q. After that, you immediately arrested him?
A. Yes, sir. I first asked my order my shabu.
Q. In your Affidavit, you testified that you asked one "bulto" of shabu?
A. More or less five grams of shabu, sir.27 (Emphases supplied.)
There was a prior arrangement between Carpio and accused-appellant
Maongco. When PO1 Arugay appeared for his purportedly indisposed
cousin, Carpio, and asked for his order of shabu, accused-appellant
Maongco immediately understood what PO1 Arugay meant. Accused-
appellant Maongco took out a sachet of shabu from his pocket and handed
over possession of said sachet to PO1 Arugay.
Based on the charges against accused-appellant Maongco and the evidence
presented by the prosecution, accused-appellant Maongco is guilty beyond
reasonable doubt of illegal delivery of shabu under Article II, Section 5 of
Republic Act No. 9165.
For the same reasons cited in the preceding paragraphs, the RTC and the
Court of Appeals also erred in convicting accused-appellant Bandali for the
crime of illegal sale of shabu in Criminal Case No. Q-04-127732.
The Information against accused-appellant Bandali, same as that against
accused-appellant Maongco, charged him with "willfully and unlawfully
dispensing, delivering, transporting, distributing or acting as broker" in the
transaction involving 4.45 grams of shabu . However, unlike accused-
appellant Maongco, accused-appellant Bandali cannot be convicted for illegal
delivery of shabu under Article II, Section 5 of Republic Act No. 9165, given
that the circumstances surrounding the arrest of the latter were radically
different from those of the former.
PO2 Ong testified:
Q. How did this Arugay arrest this Michael? A. Yes, your Honor.

A. I was only a back-up of Arugay, sir. Q. When you demanded the production of what?

Q. What did you see, if any? A. One (1) bulto of shabu, your Honor.

A. I saw that he recovered one (1) heat-sealed transparent plastic sachet, sir. PROS. ANTERO:

Q. He recovered it from whom? Q. Why do you know that he was Bandali?

A. From Michael Maongco, sir.
xxxx
Q. What happened when this man was arrested by Arugay?
A. We looked for the other "bulto" because according to Michael there were
two and it was in the possession of Phans, sir.
A. Because Michael Maongco was pointing to him that he was Phans
Bandali, sir.
Q. Was Michael with you when you went to that Jollibee?
A. Yes, sir.
Q. What happened when you demanded from Bandali this shabu?

THE COURT: A. He voluntarily put out the shabu, sir.

Q. Where did you look for him? Q. What happened next, Mr. Witness?

A. At Jollibee, Pantranco, your Honor. A. I told him of his violation and his rights, sir. 28 PO2 Ong further confirmed
during his cross-examination:
xxxx
Q. Now, Mr. Witness, you mentioned a while ago that you arrested Phans
Q. Did you find him in Jollibee? Bandali inside Jollibee, Pantranco.1avvphi1 Is that correct?

A. Yes, your Honor, because according to Michael Maongco he was wearing A. Yes, sir.
blue T-shirt.
Q. And you did not buy from him a shabu, Mr. Witness?
Q. What did you do when you found him at Jollibee?
A. No, sir.
A. I went near him and asked him to put out the other shabu in his
possession, your Honor. Q. You just demanded from him a plastic sachet?

Q. You yourself? A. Yes, sir.29 (Emphases supplied.)

A. My companions were just there, your Honor. In accused-appellant Bandali’s case, it cannot be said that he knowingly
passed on the sachet of shabu in his possession to PO2 Ong. PO2 Ong
Q. You yourself approached him? approached accused-appellant Bandali as a police officer, absent any
pretense, and demanded that the latter bring out the other sachet of shabu.
Accused-appellant Bandali’s voluntary production of the sachet of shabu in
his possession was in subservience to PO2 Ong’s authority. PO2 Ong then
acquired the sachet of shabu from accused-appellant Bandali by seizure, not
by delivery. Even if there may be doubt as to whether or not accused-
appellant Bandali was actually aware at that moment that PO2 Ong was a
police officer, the ambiguity would still be resolved in accused-appellant
Bandali’s favor.
This does not mean though that accused-appellant Bandali goes scot-free.
The evidence for the prosecution did establish that accused-appellant
Bandali committed illegal possession of dangerous drugs, penalized under
Article II, Section 11 of Republic Act No. 9165.
For the prosecution of illegal possession of dangerous drugs to prosper, the
following essential elements must be proven, namely: (1) the accused is in
possession of an item or object that is identified to be a prohibited drug; (2)
such possession is not authorized by law; and (3) the accused freely and
consciously possess the said drug. 30 Accused-appellant Maongco informed
the police officers that the other sachet of shabu was in the possession of
accused-appellant Bandali. Accused-appellant Bandali herein was in
possession of the sachet of shabu as he was sitting at Jollibee Pantranco
branch and was approached by PO2 Ong. Hence, accused-appellant Bandali
was able to immediately produce and surrender the said sachet upon
demand by PO2 Ong. Accused-appellant Bandali, admittedly jobless at the
time of his arrest,31 did not have any authority to possess shabu. And as to
the last element, the rule is settled that possession of dangerous drugs
constitutes prima facie evidence of knowledge or animus possidendi, which is
sufficient to convict an accused in the absence of a satisfactory explanation
of such possession.32
But can accused-appellant Bandali be convicted for illegal possession of
dangerous drugs under Article II, Section 11 of Republic Act No. 9165 when
he was charged with illegal dispensation, delivery, transportation, distribution
or acting as broker of dangerous drugs under Article II, Section 5 of the same
statute? The Court answers in the affirmative.
Rule 120, Section 4 of the Rules of Court governs situations where there is a
variance between the crime charged and the crime proved, to wit:
Sec. 4. Judgment in case of variance between allegation and proof. – When
there is variance between the offense charged in the complaint or information
and that proved, and the offense as charged is included in or necessarily
includes the offense proved, the accused shall be convicted of the offense
proved which is included in the offense charged, or of the offense charged
which is included in the offense proved.
Well-settled in jurisprudence that the crime of illegal sale of dangerous drugs
necessarily includes the crime of illegal possession of dangerous
drugs.33 The same ruling may also be applied to the other acts penalized
under Article II, Section 5 of Republic Act No. 9165 because for the accused
to be able to trade, administer, dispense, deliver, give away to another,
distribute, dispatch in transit, or transport any dangerous drug, he must
necessarily be in possession of said drugs.
At the outset of the trial, both parties had admitted the laboratory results
showing that the contents of the two sachets tested positive for shabu,
although accused-appellants contest the identity and integrity of the sachets
and contents actually tested since the chain of custody of the same was not
satisfactorily established in accordance with Republic Act No. 9165 and its
implementing rules.
The Court disagrees with accused-appellants as the police officers had
substantially complied with the chain of custody rule under Section 21(a) of
the Implementing Rules of Republic Act No. 9165. The Court had previously
held that in dangerous drugs cases, the failure of the police officers to make
a physical inventory, to photograph, and to mark the seized drugs at the
place of arrest do not render said drugs inadmissible in evidence or
automatically impair the integrity of the chain of custody of the same. 34 The
Court had further clarified, in relation to the requirement of marking the drugs
"immediately after seizure and confiscation," that the marking may be
undertaken at the police station rather than at the place of arrest for as long
as it is done in the presence of the accused and that what is of utmost
importance is the preservation of its integrity and evidentiary value. 35
The Court finds no fault on the part of both the RTC and the Court of Appeals
in giving more weight and credence to the testimonies of the police officers
vis-à-vis those of the accused-appellants. Questions as to the credibility of
witnesses are matters best left to the appreciation of the trial court because
of its unique opportunity of having observed that elusive and incommunicable
evidence of the witnesses’ deportment on the stand while testifying, which
opportunity is denied to the reviewing tribunal.36
Moreover, accused-appellants’ uncorroborated defenses of denial and claims
of frame-up cannot prevail over the positive testimonies of the prosecution
witnesses, coupled with the presentation in court of the corpus delicti. The
testimonies of police officers who caught the accused-appellants in flagrante
delicto are usually credited with more weight and credence, in the absence of
evidence that they have been inspired by an improper or ill motive, than the
defenses of denial and frame-up of an accused which have been invariably
viewed with disfavor for it can easily be concocted. In order to prosper, the
defenses of denial and frame-up must be proved with strong and convincing
evidence,37 which accused-appellants failed to present in this case.
Lastly, the Court determines the proper penalties to be imposed upon
accused-appellants.1âwphi1
Under Article II, Section 5 of Republic Act No. 9165, the penalties for the
illegal delivery of dangerous drugs, regardless of the quantity thereof, shall
be life imprisonment to death and a fine ranging from Five Hundred
Thousand Pesos (₱500,000.00) to Ten Million Pesos (₱10,000,000.00).
Hence, accused-appellant Maongco, for his illegal delivery of shabu in
Criminal Case No. Q-04-127731, is sentenced to life imprisonment and
ordered to pay a fine of Five Hundred Thousand Pesos (₱500,000.00).
Article II, Section 11 of Republic Act No. 9165 prescribes the penalty, for
possession of less than five grams of dangerous drugs, of imprisonment of
twelve (12) years and one (1) day to twenty (20) years, plus a fine ranging
from Three Hundred Thousand Pesos (₱300,000.00) to Four Hundred
Thousand Pesos (₱400,000.00). Applying the Indeterminate Sentence Law,
the maximum term shall not exceed the maximum fixed by law and the
minimum shall not be less than the minimum term as prescribed by the same
law. Resultantly, accused-appellant Bandali, for his illegal possession of 4.45
grams of shabu in Criminal Case No. Q-04-127732, is sentenced to
imprisonment of twelve (12) years and one (1) day, as the minimum term, to
twenty (20) years, as the maximum term, and ordered to pay a fine of Four
Hundred Thousand Pesos (₱400,000.00).
WHEREFORE, the appealed Decision Is AFFIRMED with MODIFICATIONS
to read as follows:
1. In Criminal Case No. Q-04-127731, accused-appellant MICHAEL
YUMONDA MAONGCO is found GUILTY beyond reasonable doubt
of illegal delivery of shabu penalized under Article II, Section 5 of
Republic Act No. 9165, and is sentenced to LIFE IMPRISONMENT
and ordered to pay a FINE of Five Hundred Thousand Pesos
(₱500,000.00); and
2. In Criminal Case No. Q-04-127732, accused-appellant PHANS
SIMP AL BAND ALI is found GUILTY beyond reasonable doubt of
illegal possession of shabu with a net weight of 4.45 grams,
penalized under Article II, Section 11 of Republic Act No. 9165, and
is sentenced to suffer the penalty of IMPRISONMENT of twelve (12)
years and one (1) day, as the minimum term, to twenty (20) years, as
the maximum term, and ordered to pay a FINE of Four Hundred
Thousand Pesos (₱400,000.00).
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 94337 January 27, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
UTOH LAKIBUL y DAUD, accused-appellant.
The Solicitor General for plaintiff-appellee.
Pablo R. Barnera for accused-appellant.
CAMPOS, JR., J.:
This is an appeal interposed by the accused Utoh Lakibul y Daud from the
decision ** of the Regional Trial Court of Zamboanga City, 9th Judicial
Region, Branch 12, in Criminal Case No. 9002 finding him guilty beyond
reasonable doubt of violating Section 4, Article II of Republic Act No. 6425,
otherwise known as the Dangerous Drugs Act, and sentencing him to suffer
the penalty of life imprisonment and to pay a fine of P20,000.00 without
subsidiary imprisonment in case of insolvency.
On November 8, 1988, the Assistant City Fiscal filed an information charging
the accused with violation of Section 4, Article II of the Dangerous Drugs Act
committed as follows:
That on or about November 8, 1988, in the City of
Zamboanga, Philippines, and within the jurisdiction of this
Honorable Court, the
above-named accused, not being authorized by law, did then
and there wilfully, unlawfully and feloniously sell to PO2
Manuel S. Alarcon two (2) wrappers containing dried
marijuana, knowing same to be a prohibited drug.
CONTRARY TO LAW.1
On December 27, 1988, the accused, assisted by his counsel, pleaded "not
Guilty" to the Information:2
After trial on the merits, the trial court rendered its decision on May 14, 1990
finding the accused guilty beyond reasonable doubt of the crime charged, the
dispositive portion of which reads:
WHEREFORE, finding accused UTOH LAKIBUL y DAUD
guilty beyond reasonable doubt of the crime charged, he is
sentenced to serve LIFE IMPRISONMENT pursuant to
Section 4, Article II of Republic Act 6425, as amended, and
to pay Twenty Thousand (P20,000.00) Pesos fine without
subsidiary imprisonment in case of non-payment thereof due
to insolvency.
SO ORDERED.3
The antecedent facts as culled by the Solicitor General are as follows:
On November 6, 1988, NARCOM Agent TSgt. Generoso
Dalumpines received information about the presence of a
drug pusher at Lower Calarian, Zamboanga City. Major
Cabayacruz, Officer-In-Charge of the NARCOM then
instructed surveillance.
Thereafter, TSgt. Dalumpines and SSgt. Elmer Dedicatoria
proceeded to Lower Calarian, near the mini-fish market, to
conduct their surveillance. Thereat, they saw several
teenagers going to the suspected pusher (p. 3, tsn, May 12,
1989).
On the following day, November 7, 1988, the two (2)
NARCOM agents proceeded to the same place where they
again observed several teenager going to the suspected
drug pusher (pp. 3-4, ibid).
On November 8, 1988, TSgt. Dalumpines informed Major
Cabayacruz of the results of their surveillance and right there
and then decided to conduct a buy-bust operation.
A three (3) man team was formed to conduct the buy-bust
operation composed of TSgt. Dalumpines as the team
leader, SSgt. Dedicatoria and Petty Officer II (PO2) Manuel
S. Alarcon, Sr. as the poseur-buyer. After a short briefing,
TSgt. Dalumpines got from TSgt. Mohammed Sali Mihasun
two (2) five peso bills to be used in the buy-bust operation.
Said five peso bills bore the serial numbers JD 426621 and
JM 36075 (Exhs. "E" and "F", respectively) [p.4, ibid].
The three-man team then proceeded to lower Calarian on
board a tricycle. Upon arrival in the area and from a distance
of about ten (10) meters, TSgt. Dalumpines pinpointed the
suspected pusher to PO2 Alarcon. Thus, PO2 Alarcon
approached the suspect and told the latter of the former's
desire to buy P10.00 worth of marijuana. The suspect
produced from his pocket two (2) newspaper wrapped
articles. PO2 Alarcon examined the contents of said
newspaper wrapped articles and when he was satisfied that
it contained marijuana, he gave the two (2) five peso bills to
the suspect.
The entrapment having been completed, PO2 Alarcon gave
the
pre-arranged signal by putting his hand over his head and
scratched [sic] the same. Immediately, TSgt. Dalumpines
rushed up to the suspect and placed him under arrest. PO2
Alarcon turned over the two (2) newspaper wrapped
marijuana to TSgt. Dalumpines and later brought the suspect
to the NARCOM Office for investigation where he identified
himself as UTOH LAKIBUL. The two (2) five peso bills were
recovered from appellant after a body search (pp. 17-23, tsn,
April 18, 1989).
Laboratory tests conducted (Exh. "C") confirmed that the two
(2) newspaper wrapped articles (Exh. "B-1" and "B-2") sold
by appellant to PO2 Alarcon was marijuana (p. 4, tsn, March
16, 1989).4
The accused, on the other hand, had a different version of the events that
transpired on that day. His testimony was summarized by the trial judge as
follows:
Utoh Lakibul, who gave his age as 23, said he was a fish
vendor at Lower Calarian in small market there. On
November 6, 7 and 8, 1988, he was selling fish in this place.
Nobody approached him or talked to him on November 6
and 7, 1988. But on November 8, 1988, about 8:30 in the
morning, somebody called him. Though he did not know the
person, he went and approached him. When he did so two
persons, dressed in civilian clothes, grabbed him and told
 him to go with them to their office. Utoh Lakibul said he
refused, even made a bodily motion to get away from the two
persons. Somebody else went near him, telling Utoh Lakibul
that if he did not go with them something would happen to
him. So Utoh Lakibul became afraid and went with the three
men — who took him aboard a tricycle to their office. In the
office, Lakibul was asked about his name and age. He was
shown marijuana taken from the pocket of the arresting
officer and money, also taken from the pocket of the same
arresting officer. He was told that the marijuana and money
(bill) were the evidence against him. Lakibul denied and said
he did not know anything about it. Nothing had been taken
from his pocket or body. After about 20 minutes, four
persons took him downtown to the City Fiscal's Office. In the
City Fiscal's Office, he was asked if the marijuana and
money belonged to him and he said he did not know about it.
He was not given any lawyer but he was not made to sign
any document. From the City Fiscal's Office, Utoh Lakibul
said he was brought to the City Jail. At the time the three
persons arrested him while he was selling fish there were
people who saw him.
On cross-examination, Utoh Lakibul said that the marijuana shown to him
was the same one he had seen in court (inside two newspaper wrappers).
There was no commotion when the three persons arrested him. But people
saw him being arrested; but none of them did anything to help him (TSN,
September 26, 1989, pp. 1-8).5
The accused appealed from the judgment of conviction, assigning the
following errors6 allegedly committed by the trial court, to wit:
I mean JM 36075.
IN BASING ITS DECISION CONVICTING THE
ACCUSED/APPELANT ON EXHIBIT "F" OF THE
PROSECUTION.
II
IN NOT BELIEVING THE TESTIMONY OF
ACCUSED/APPELLANT AS CORROBORATED BY HIS
THREE WITNESSES.
III
IN RELYING ON THE TESTIMONY OF THE WITNESSES
FOR THE PROSECUTION INSTEAD OF WEIGHING THE
EVIDENCES ADDUCED DURING THE TRIAL IN FAVOR
OF ACCUSED/APPELLANT.
The accused contends that the trial court erred in allowing the marking of
Exhibit "F" considering that the serial numbers on the two five-peso bills were
different from that presented by the prosecution witness. We do not agree. A
reading of the stenographic notes showed that there was no mistake as to
the identity of the marked bills presented by the prosecution. The testimony
of PO2 Alarcon is reproduced as follows:
Q Do you remember these two P5 bill (sic)
that was (sic) given to you by TSgt.
Dalumpines?
A Yes.
Q How well (sic) you know that that was the
two P5 bill (sic)?
A By its (sic) serial number.
Q Do you remember the serial number?
A Yes.
Q Please tell us.
A The one P5 bill bearing SN JM 0360, I
Q You are sure of that?
A Yes.
Q How about the other one?
A JD 426621.
Q I have here two P5 bills, with SN 360765
and the other one JD 426621, is this (sic)
the one (sic) you mentioned?
 A Yes.
FISCAL CAJAYON:
Your Honor, please, I would like to request
that P5 bill bearing SN JD 426621 be
marked as our Exhibit "E", your Honor.
COURT:
Mark it.
FISCAL CAJAYON:
Q How about the other one, what Serial No.
was it it (sic)?
A JM 36075.
Q I have here P5 bill bearing SN 36075, is
this the one?
A Yes.
FISCAL CAJAYON:
I also request, your Honor, the other P5 bill
with SN JM 360765 be marked as Exhibit
"F".7
Besides, even without the money to buy the marijuana so long as the police
officer went through the motion as a buyer and his offer was accepted by the
appellant and the marijuana delivered to police officer, the crime was
consummated by the delivery of the goods.8
The second and third assignment of errors imputed by the accused to the
trial court turn on the issue of credibility. It is well-settled that the findings of
the trial court on the credibility of witnesses are entitled to great weight on
appeal "as it is in a better position to decide the question of credibility, having
seen and heard the witnesses themselves and observed their behavior and
manner of testifying. The impression of the trial court on the matter is binding
upon the Supreme Court unless there appears a grave abuse of discretion or
obvious misapprehension of facts". 9 In the case at bar, We find no reason to
deviate from the general rule.
We agree with the findings of the trial court when it gave more credence to
the prosecution's evidence, thus:
The issues is, then, one of credibility (sic) and as the Court
stated earlier, it gives credit to the government witnesses
and not to Defense witnesses. First, the Court saw how
these witnesses testify (sic) and believes (sic) in the sincerity
of the government witnesses, their truthfulness and in the
manner they testified. Second, Defense witnesses were
long-time neighbors of Utoh Lakibul and his mother. They
testified on the request of Lakibul's mother. Third is that, the
Court cannot believe that the sound "Pssst" is loud enough
to attract the attention of persons some meters away.
Especially, of persons who were engaged in some activity,
like buying. Fourth reason is that, the testimonies of the
witnesses are more elaborate than that of the accused
himself. For instance, the accused himself did not state he
was called by the "Pssst" sound; he did not say that his co-
fish vendor, Apna Labbay, had touched his shoulder to
indicate to him he was being called by the three persons. In
fact, accused did not mention that Apna Labbay was one of
those selling fish near his fish table. Then, not one of
Defense witnesses — not even accused himself — ascribed
any evil or ulterior motive as to why NARCOM agents, who
did not know the accused until two days of surveillance and
the day of the buy-bust operation would just arrest him
without reason. There was no previous misunderstanding or
trouble between accused and the NARCOM men; neither did
any of the NARCOM men involved intimate to accused they
wanted any money or anything from accused. There are no
substantive defects in (sic) Prosecution (sic) testimonial
evidence that may entitle accused to acquittal based on
reasonable doubt.10
As to the alleged inconsistencies in the testimonies of the prosecution
witnesses as contained in the appellant's Brief, We do not find them
substantial enough to impair the essential veracity of their narration that the
accused was caught in flagrante selling marijuana during the buy-bust
operation conducted by the NARCOM agents.
WHEREFORE, finding no reversible error in the trial court's findings, the
decision of the Court a quo  is hereby AFFIRMED in toto.
SO ORDERED.
Narvasa, C.J., Feliciano, Regalado and Nocon, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 179940             April 23, 2008

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NORBERTO DEL MONTE y GAPAY @ OBET, accused-appellant.

DECISION

CHICO-NAZARIO, J.:

Assailed before Us is the Decision 1 of the Court of Appeals in CA-G.R. CR-
H.C. No. 02070 dated 28 May 2007 which affirmed with modification the
Decision2 of the Regional Trial Court (RTC) of Malolos, Bulacan, Branch 78,
in Criminal Case No. 3437-M-02, finding accused-appellant Norberto del
Monte, a.k.a. Obet, guilty of violation of Section 5, 3 Article II of Republic Act
No. 9165, otherwise known as "Comprehensive Dangerous Drugs Act of
2002."

On 11 December 2002, accused-appellant was charged with Violation of

Section 5, Article II of Republic Act No. 9165, otherwise known as
Comprehensive Dangerous Drugs Act of 2002. The accusatory portion of the
information reads:

That on or about the 10th day of December 2002, in the municipality

of Baliuag, province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused,
without authority of law and legal justification, did then and there
wilfully, unlawfully and feloniously sell, trade, deliver, give away,
dispatch in transit and transport dangerous drug consisting of one (1)
 heat-sealed transparent plastic sachet of Methylamphetamine
Hydrochloride weighing 0.290 gram.4
The case was raffled to Branch 78 of the RTC of Malolos, Bulacan and
docketed as Criminal Case No. 3437-M-02.
When arraigned on 20 January 2003, appellant, assisted by counsel de
oficio, pleaded "Not Guilty" to the charge. 5 On 17 February 2003, the pre-trial
conference was concluded.6 Thereafter, trial on the merits ensued.
The prosecution presented as its lone witness PO1 Gaudencio M. Tolentino,
Jr., the poseur-buyer in the buy-bust operation conducted against appellant,
and a member of the Philippine National Police (PNP) assigned with the
Philippine Drug Enforcement Agency (PDEA) Regional Office 3/Special
Enforcement Unit (SEU) stationed at the Field Office, Barangay Tarcan,
Baliuag, Bulacan.
The version of the prosecution is as follows:
On 10 December 2002, at around 3:00 o’clock in the afternoon, a confidential
informant went to the office of the PDEA SEU in Barangay Tarcan, Baliuag,
Bulacan and reported that appellant was selling shabu. Upon receipt of said
information, a briefing on a buy-bust operation against appellant was
conducted. The team was composed of SPO2 Hashim S. Maung, as team
leader, PO1 Gaudencio Tolentino, Jr. as the poseur-buyer, and PO1 Antonio
Barreras as back-up operative. After the briefing, the team, together with the
confidential informant, proceeded to Poblacion Dike for the execution of the
buy-bust operation.
When the team arrived at appellant’s place, they saw the appellant standing
alone in front of the gate. The informant and PO1 Tolentino approached
appellant. The informant introduced PO1 Tolentino to appellant as his friend,
saying "Barkada ko, user." PO1 Tolentino gave appellant P300.00 consisting
of three marked P100 bills.7 The bills were marked with "GT JR," PO1
Tolentino’s initials. Upon receiving the P300.00, appellant took out a plastic
sachet from his pocket and handed it over to PO1 Tolentino. As a pre-
arranged signal, PO1 Tolentino lit a cigarette signifying that the sale had
been consummated. PO1 Barreras arrived, arrested appellant and recovered
from the latter the marked money.
The white crystalline substance8 in the plastic sachet which was sold to PO1
Tolentino was forwarded to PNP Regional Crime Laboratory Office 3,
Malolos, Bulacan, for laboratory examination to determine the presence of
the any dangerous drug. The request for laboratory examination was signed
by SPO2 Maung.9 Per Chemistry Report No. D-728-2002,10 the substance
bought from appellant was positive for methamphetamine hydrochloride, a
dangerous drug.
The testimony of Nellson Cruz Sta. Maria, Forensic Chemical Officer who
examined the substance bought from appellant, was dispensed after both
prosecution and defense stipulated that the witness will merely testify on the
fact that the drugs subject matter of this case was forwarded to their office for
laboratory examination and that laboratory examination was indeed
conducted and the result was positive for methamphetamine hydrochloride. 11
For the defense, the appellant took the witness stand, together with his
common-law wife, Amelia Mendoza; and nephew, Alejandro Lim.
From their collective testimonies, the defense version goes like this:
On 10 December 2002, appellant was sleeping in his sister’s house in
Poblacion Dike when a commotion woke him up. His nephew, Alejandro Lim,
was shouting because the latter, together with appellant’s common-law wife,
Amelia Mendoza, and a niece, was being punched and kicked by several
police officers. When appellant tried to pacify the policemen and ask them
why they were beating up his common-law wife and other relatives, the
policemen arrested him, mauled him, punched him on the chest, slapped him
and hit him with a palo-palo. He sustained swollen face, lips and tooth. His
common-law wife was likewise hit on the chest with the palo-palo.
The policemen then took appellant and his common-law wife to a house
located in the middle of a field where the former demanded P15,000.00 for
their liberty. The next day, appellant was brought to the police station.
Amelia Mendoza identified PO1 Tolentino and PO1 Barreras as the police
officers who manhandled them and who demanded P15,000.00 so that she
and appellant could go home. The following day at 6:00 a.m., she said her
child and cousin arrived with the P15,000.00. She was released but appellant
was detained. She does not know why the police officers filed this case
against appellant. What she knows is that they were asking money from
them.
Alejandro Lim merely corroborated the testimonies of appellant and Amelia
Mendoza.
On 8 March 2004, the trial court rendered its decision convicting appellant of
Violation of Section 5, Article II of Republic Act No. 9165, and sentenced him
to life imprisonment and to pay a fine of P5,000,000.00. The dispostive
portion of the decision reads:
 WHEREFORE, the foregoing considered, this Court hereby finds
accused Norberto del Monte y Gapay @ Obet GUILTY beyond
reasonable doubt of the offense of Violation of Section 5, Art. II of
R.A. 9165 and sentences him to suffer the penalty of LIFE
IMPRISONMENT and a fine of P5,000,000.00. With cost.
The drugs subject matter of this case is hereby ordered forfeited in
favor of the government. The Branch of this Court is directed to turn
over the same to the Dangerous Drugs Board within ten (10) days
from receipt hereof for proper disposal thereof.12
The trial court found the lone testimony of PO1 Gaudencio M. Tolentino, Jr.
to be credible and straightforward. It established the fact that appellant was
caught selling shabu during an entrapment operation conducted on 10
December 2002. Appellant was identified as the person from whom PO1
Tolentino bought P300.00 worth of shabu as confirmed by Chemistry Report
No. D-728-2002. On the other hand, the trial court was not convinced by
appellant’s defense of frame-up and denial. Appellant failed to substantiate
his claims that he was merely sleeping and was awakened by the screams of
his relatives who were being mauled by the police officers.
Appellant filed a Notice of Appeal on 10 March 2004. 13 With the filing thereof,
the trial court directed the immediate transmittal of the entire records of the
case to us.14 However, pursuant to our ruling in People v. Mateo,15 the case
was remanded to the Court of Appeals for appropriate action and
disposition.16
On 28 May 2007, the Court of Appeals affirmed the trial court’s decision but
reduced the fine imposed on appellant to P500,000.00. It disposed of the
case as follows:
WHEREFORE, the appeal is DISMISSED and the decision dated
March 8, 2004 of the RTC, Branch 78, Malolos, Bulacan, in Criminal
Case No. 3437-M-02, finding accused-appellant Norberto del Monte
guilty beyond reasonable doubt of Violation of Section 5, Article II,
Republic Act No. 9165, and sentencing him to suffer the penalty of
life imprisonment is AFFIRMED with the MODIFICATION that the
amount of fine imposed upon him is reduced from P5,000,000.00
to P500,000.00.17
A Notice of Appeal having been timely filed by appellant, the Court of
Appeals forwarded the records of the case to us for further review. 18
In our Resolution19 dated 10 December 2007, the parties were notified that
they may file their respective supplemental briefs, if they so desired, within 30
days from notice. Both appellant and appellee opted not to file a
supplemental brief on the ground they had exhaustively argued all the
relevant issues in their respective briefs and the filing of a supplemental brief
would only contain a repetition of the arguments already discussed therein.
Appellant makes a lone assignment of error:
THE TRIAL COURT GRAVELY ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY OF THE OFFENSE CHARGED
DESPITE THE INADMISSIBILITY OF THE EVIDENCE AGAINST
HIM FOR FAILURE OF THE ARRESTING OFFICERS TO COMPLY
WITH SECTION 21 OF R.A. 9165.20
Appellant anchors his appeal on the arresting policemen’s failure to strictly
comply with Section 21 of Republic Act No. 9165. He claims that pictures of
him together with the alleged confiscated shabu were not taken immediately
upon his arrest as shown by the testimony of the lone prosecution witness.
He adds that PO1 Tolentino and PO1 Antonio Barreras, the police officers
who had initial custody of the drug allegedly seized and confiscated, did not
conduct a physical inventory of the same in his presence as shown by their
joint affidavit of arrest. Their failure to abide by said section casts doubt on
both his arrest and the admissibility of the evidence adduced against him.
At the outset, it must be stated that appellant raised the police officers’
alleged non-compliance with Section 21 21 of Republic Act No. 9165 for the
first time on appeal. This, he cannot do. It is too late in the day for him to do
so. In People v. Sta. Maria22  in which the very same issue was raised, we
ruled:
The law excuses non-compliance under justifiable grounds.
However, whatever justifiable grounds may excuse the police officers
involved in the buy-bust operation in this case from complying with
Section 21 will remain unknown, because appellant did not question
during trial the safekeeping of the items seized from him. Indeed,
the police officers’ alleged violations of Sections 21 and 86 of
Republic Act No. 9165 were not raised before the trial court but
were instead raised for the first time on appeal. In no instance
did appellant least intimate at the trial court that there were
lapses in the safekeeping of seized items that affected their
integrity and evidentiary value. Objection to evidence cannot be
raised for the first time on appeal; when a party desires the
court to reject the evidence offered, he must so state in the form
of objection. Without such objection he cannot raise the
question for the first time on appeal. (Emphases supplied.)
In People v. Pringas,23 we explained that non-compliance with Section 21 will
not render an accused’s arrest illegal or the items seized/confiscated from
him inadmissible. What is of utmost importance is the preservation of the
integrity and the evidentiary value of the seized items as the same would be
utilized in the determination of the guilt or innocence of the accused. In the
case at bar, appellant never questioned the custody and disposition of the
drug that was taken from him. In fact, he stipulated that the drug subject
matter of this case was forwarded to PNP Regional Crime Laboratory Office
3, Malolos, Bulacan for laboratory examination which examination gave
positive result for methamphetamine hydrochloride, a dangerous drug. We
thus find the integrity and the evidentiary value of the drug seized from
appellant not to have been compromised.
We would like to add that non-compliance with Section 21 of said law,
particularly the making of the inventory and the photographing of the drugs
confiscated and/or seized, will not render the drugs inadmissible in evidence.
Under Section 3 of Rule 128 of the Rules of Court, evidence is admissible
when it is relevant to the issue and is not excluded by the law or these rules.
For evidence to be inadmissible, there should be a law or rule which forbids
its reception. If there is no such law or rule, the evidence must be admitted
subject only to the evidentiary weight that will accorded it by the courts. One
example is that provided in Section 31 of Rule 132 of the Rules of Court
wherein a party producing a document as genuine which has been altered
and appears to be altered after its execution, in a part material to the
question in dispute, must account for the alteration. His failure to do so shall
make the document inadmissible in evidence. This is clearly provided for in
the rules.
We do not find any provision or statement in said law or in any rule that will
bring about the non-admissibility of the confiscated and/or seized drugs due
to non-compliance with Section 21 of Republic Act No. 9165. The issue
therefore, if there is non-compliance with said section, is not of admissibility,
but of weight – evidentiary merit or probative value – to be given the
evidence. The weight to be given by the courts on said evidence depends on
the circumstances obtaining in each case.
The elements necessary for the prosecution of illegal sale of drugs are (1)
the identity of the buyer and the seller, the object, and consideration; and (2)
the delivery of the thing sold and the payment therefor. 24 What is material to
the prosecution for illegal sale of dangerous drugs is the proof that the
transaction or sale actually took place, coupled with the presentation in court
of evidence of corpus delicti.25
All these elements have been shown in the instant case. The prosecution
clearly showed that the sale of the drugs actually happened and that
the shabu subject of the sale was brought and identified in court. The poseur
buyer positively identified appellant as the seller of the shabu. Per Chemistry
Report No. D-728-2002 of Forensic Chemical Officer Nellson Cruz Sta.
Maria, the substance, weighing 0.290 gram, which was bought by PO1
Tolentino from appellant in consideration of P300.00, was examined and
found to be methamphetamine hydrochloride (shabu).
In the case before us, we find the testimony of the poseur-buyer, together
with the dangerous drug taken from appellant, more than sufficient to prove
the crime charged. Considering that this Court has access only to the cold
and impersonal records of the proceedings, it generally relies upon the
assessment of the trial court, which had the distinct advantage of observing
the conduct and demeanor of the witnesses during trial. It is a fundamental
rule that findings of the trial courts which are factual in nature and which
involve credibility are accorded respect when no glaring errors, gross
misapprehension of facts and speculative, arbitrary and unsupported
conclusions can be gathered from such findings. The reason for this is that
the trial court is in a better position to decide the credibility of witnesses
having heard their testimonies and observed their deportment and manner of
testifying during the trial.26
The rule finds an even more stringent application where said findings are
sustained by the Court of Appeals. 27 Finding no compelling reason to depart
from the findings of both the trial court and the Court of Appeals, we affirm
their findings.
Appellant denies selling shabu to the poseur-buyer insisting that he was
framed, the evidence against him being "planted," and that the police officers
were exacting P15,000.00 from him.
In the case at bar, the evidence clearly shows that appellant was the subject
of a buy-bust operation. Having been caught in flagrante delicto, his identity
as seller of the shabu can no longer be doubted. Against the positive
testimonies of the prosecution witnesses, appellant’s plain denial of the
offenses charged, unsubstantiated by any credible and convincing evidence,
must simply fail.28 Frame-up, like alibi, is generally viewed with caution by this
Court, because it is easy to contrive and difficult to disprove. Moreover, it is a
common and standard line of defense in prosecutions of violations of the
Dangerous Drugs Act.29 For this claim to prosper, the defense must adduce
clear and convincing evidence to overcome the presumption that government
officials have performed their duties in a regular and proper manner. 30 This,
appellant failed to do. The presumption remained unrebutted because the
defense failed to present clear and convincing evidence that the police
officers did not properly perform their duty or that they were inspired by an
improper motive.
The presentation of his common-law wife, Amelia Mendoza, and his nephew,
Alejandro Lim, to support his claims fails to sway. We find both witnesses not
to be credible. Their testimonies are suspect and cannot be given credence
without clear and convincing evidence. Their claims, as well as that of
appellant, that they were maltreated and suffered injuries remain
unsubstantiated. As found by the trial court:
The accused, on the other hand, in an effort to exculpate himself
from liability raised the defense of frame-up. He alleged that at the
time of the alleged buy bust he was merely sleeping at the house of
his sister. That he was awakened by the yells and screams of his
relatives as they were being mauled by the police officers. However,
this Court is not convinced. Accused failed to substantiate these
claims of maltreatment even in the face of his wife’s and nephew’s
testimony. No evidence was presented to prove the same other than
their self-serving claims.31
Moreover, we agree with the observation of the Office of the Solicitor General
that the witnesses for the defense cannot even agree on what time the
arresting policemen allegedly arrived in their house. It explained:
To elaborate, appellant testified that it was 3 o’clock in the afternoon
of December 10, 2002 when he was roused from his sleep by the
policemen who barged into the house of his sister (TSN, July 7,
2003, p. 2). His common-law wife, however, testified that it was 10-
11 o’clock in the morning when the policemen came to the house
(TSN, Oct. 13, 2003, p. 6). On the other hand, Alejandro Lim testified
that he went to sleep at 11 o’clock in the morning and it was 10
o’clock in the morning when the policemen arrived (TSN, Feb.2,
2004, p. 6). He thus tried to depict an absurd situation that the
policemen arrived first before he went to sleep with appellant. 32
away to another, distribute, dispatch in transit or transport any
dangerous drug, including any and all species of opium poppy
regardless of the quantity and purity involved, or shall act as a broker
in any of such transactions.
Under said law, the sale of any dangerous drug, regardless of its quantity
and purity, is punishable by life imprisonment to death and a fine
of P500,000.00 to P10,000,000.00. For selling 0.290 gram of shabu to PO1
Tolentino, and there being no modifying circumstance alleged in the
information, the trial court, as sustained by the Court of Appeals, correctly
imposed the penalty of life imprisonment in accordance with Article 63(2) 33 of
the Revised Penal Code.
As regards the fine to be imposed on appellant, the trial court pegged the fine
at P5,000,000.00 which the Court of Appeals reduced to P500,000.00. Both
amounts are within the range provided for by law but the amount imposed by
the Court of Appeals, considering the quantity of the drugs involved, is more
appropriate.
WHEREFORE, premises considered, the instant appeal is DENIED. The
Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02070 dated 28
May 2007, sustaining the conviction of appellant Norberto Del Monte, a.k.a.
Obet, for violation of Section 5, Article II of Republic Act No. 9165, is
hereby AFFIRMED. No costs.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice

Having established beyond reasonable doubt all the elements constituting

the illegal sale of drugs, we are constrained to uphold appellant’s conviction.

The sale of shabu is penalized under Section 5, Article II of Republic Act No.
9165. Said section reads:

SEC. 5. Sale, Trading, Administration, Dispensation, Delivery,

Distribution and Transportation of Dangerous Drugs and/or
Controlled Precursors and Essential Chemicals. – The penalty of life
imprisonment to death and a fine ranging from Five hundred
thousand pesos (P500,000.00) to Ten million pesos
(P10,000,000.00) shall be imposed upon any person, who, unless
authorized by law, shall sell, trade, administer, dispense, deliver, give
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 173804             December 10, 2008

ELPIDIO BONDAD, JR., Y BURAC, appellant,

vs.
PEOPLE OF THE PHILIPPINES, appellee.

DECISION

CARPIO MORALES, J.:

Elpidio Bondad, Jr., y Burac (appellant) was charged before the Regional
Trial Court (RTC) of Marikina City1 for violation of Section 5, paragraph 2(3),
Article II of Republic Act No. 9165 (R.A. No. 9165) or the Comprehensive
Dangerous Drugs Act of 2002, allegedly committed as follows: 2

That on or about the 29 th day of January 2004, in the City of

Marikina, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, without being authorized by law,
did then and there willfully, unlawfully, feloniously and
 knowingly sell to poseur buyer 0.02 gram of Methamphetamine
Hydrochloride (shabu) contained in one (1) heat-sealed transparent
plastic sachet, a dangerous drug, in violation of the above-cited
law.3 (Underscoring supplied)
He was likewise charged for violation of Section 11, par. 2(3), Article II also
of R.A. No. 9165, allegedly committed as follows:
That on or about the 29 th day of January 2004, in the City of
Marikina, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, without being authorized by law to
possess or otherwise use any dangerous drugs, did then and there
willfully, unlawfully and feloniously have in his possession direct
custody and control 0.04 gram of white crystalline substance
contained in two (2) heat-sealed plastic sachets which gave positive
result to the test for Methamphetamine Hydrochloride (shabu), which
is a dangerous drug, in violation of the above-cited
law.4 (Underscoring supplied)
The cases were lodged at Branch 272 of the RTC of Marikina.
From the evidence for the prosecution, particularly the testimony of its
principal witness PO2 Edwin Dano and its documentary evidence, the
following version is culled:
At around 7:05 p.m. of January 29, 2004, while PO2 Ferdinand Brubio, PO1
Christopher Anos, and PO1 Roberto Muega were at the Station Anti Illegal
Drug Special Operations Task Force (SAIDSOTF), Office of the Marikina City
Police Station, PO2 Nelson Arribay arrived together with a confidential
informant. The confidential informant reported, among other things, about the
rampant sale of shabu in a billiard hall along Bonifacio Avenue, Barangka,
Marikina City and named a certain alias "Jun" as the vendor.
The Chief of the SAIDSOTF, P/Sr. Insp. Ramchrisen Haveria, Jr., at once
formed a buy-bust team composed of, among others, PO2 Ramiel Soriano
and PO2 Dano who was designated as the poseur-buyer. PO2 Dano was
given a one hundred peso bill bearing Serial No. Q487945 to be used as
buy-bust money. It was agreed that PO2 Dano’s removal of his cap would
signal that the buy-bust was consummated.
The conduct of a buy-bust operation was recorded in the police blotter and
was coordinated with the Philippine Drug Enforcement Agency (PDEA) which
gave it control number NOC-012904-28.
The buy-bust team, together with the confidential informant, proceeded to 3
C’s billiard hall at the corner of M. Cruz St. and Bonifacio Avenue in
Barangka, Marikina City. On entering the hall, the confidential informant
pointed to appellant who was then holding a cue stick beside the billiard table
as the alias "Jun." The confidential informant approached appellant and
talked to him. Within minutes, appellant approached PO2 Dano and asked
him if he wanted to buy shabu, to which PO2 Dano answered "piso lang."
Appellant at once took out a "Vicks" container from his right front
pocket5 which, when opened, yielded heat-sealed plastic sachets containing
substances suspected to be shabu. From the container, appellant drew out
one sachet in exchange for which PO2 Dano gave the marked one hundred
peso bill. At that instant, PO2 Dano removed his cap.
As the back-up police officers were closing-in, PO2 Dano grabbed appellant’s
arm, identified himself, and apprised appellant of his constitutional rights.
Upon PO2 Dano’s order, appellant returned the buy-bust money, handed the
"Vicks" container, and gave his name as Elpidio Burac Bondad, Jr.
Still at the place of arrest, PO2 Dano placed the markings "EBB-ED
BUYBUST 01/29/04" on the substance-filled sachet sold to him, and "EBB-
ED, POS 1 and 2, 01/29/04" on the sachets that remained inside the "Vicks"
container.
The buy-bust team thereupon brought appellant and the seized items to the
Marikina City Police Station where a memorandum dated January 29,
20046 was prepared by P/Sr. Insp. Chief Haveria, Jr., addressed to the Chief
of the Eastern Police District Crime Laboratory Office, requesting for the
conduct of laboratory examination on the seized items to determine the
presence of dangerous drugs and their weight. PO2 Dano also requested
that appellant be subjected to a drug test.7
The following day or on January 30, 2004, at 3:00 P.M., upon receipt of three
sachets, a laboratory examination was conducted thereon by Police Senior
Inspector Annalee R. Forro, Forensic Chemical Officer of the Eastern Police
District Crime Laboratory Office, who, in Physical Science Report No. D-
0094-04E8, recorded, among other things, the specimen submitted, her
findings and conclusion as follows:
SPECIMEN SUBMITTED:
Three (3) heat-sealed transparent plastic sachets with
markings marked as A through C respectively, each
containing white crystalline substance with following
recorded net weights and markings:
 A = 0.02 gram "EBB-ED BUYBUST 01/29/04"
B = 0.02 gram "EBB-ED POSS 1 01/29/04"
C = 0.02 gram "EBB-ED POSS 2 01/29/04"
x-x-x x-x-x x-x-x
F I N D I N G S: x x x
Qualitative examination conducted on the above-stated
specimen gave POSITIVE result to the tests
for Methamphetamine Hydrochloride, a dangerous drug.
x-x-x x-x-x x-x-x
C O N C L U S I O N:
Specimens A through C contain Methamphetamine
Hydrochloride, a dangerous drug. 9 (Italics and emphasis in
the original)
Denying the charges against him, appellant, a former police officer, claimed
that he was framed up and gave the following version:
On January 29, 2004, while he was playing inside 3 C’s billiard hall, PO2
Brubio, whom he knew was a policeman, entered the billiard hall. After
greeting PO2 Brubio in Bicolano, he continued playing but PO2 Brubio
suddenly handcuffed him and asked him "Sumama ka muna." Another
person who was at his back pushed him out of the billiard hall in the course
of which he felt PO2 Brubio reaching his (appellant’s) right front
pocket,10 drawing him to restrain the hand of PO2 Brubio, telling him "pera ko
yan!"
Aware that his son was inside the billiard hall, appellant summoned and
handed him his wallet containing P2,000. PO2 Brubio, however, took the
wallet from his son, telling him "Huwag ka makialam dito." He was then made
to board a car and taken to the Office of the SAIDSOTF at the police station.
Appellant’s defense was corroborated by his son Christian Jeffrey C.
Bondad, and Roberto U. Mata who was a "spotter" (referee) at the billiard hall
at the time appellant was arrested.
Finding for the prosecution, the trial court convicted appellant in both
charges, disposing as follows:
WHEREFORE, foregoing premises considered, the Court finds the
accused ELPIDIO BONDAD, JR. y BURAC guilty beyond reasonable
doubt of the crime of Violation of Sec. 11 par. 2(3), Art. II of R.A.
9165 and is sentenced to suffer the penalty of imprisonment for a
period of TWELVE (12) YEARS and ONE (1) DAY and to pay the
fine of THREE HUNDRED THOUSAND PESOS (PhP300,000.00) as
provided for in Sec. 11 par. 2(3), Art. II of RA 9165. The accused is
likewise found guilty of the crime of Violation of Sec. 5 Art. II of RA
9165 and is sentenced to suffer the penalty of LIFE
IMPRISONMENT and fine of FIVE HUNDRED THOUSAND PESOS
(PhP500,00.00) pursuant to Sec. 5, Art. II of RA 9165 the
methamphetamine hydrochloride (shabu) is ordered confiscated in
favor of the government for proper destruction by the proper agency.
SO ORDERED.11 (Underscoring supplied)
By Decision of February 8, 2006, 12 the Court of Appeals affirmed the trial
court’s decision with modification, disposing as follows:
WHEREFORE, in the light of the foregoing, the appeal is
DISMISSED for lack of merit. The assailed decision is
AFFIRMED with the MODIFICATION that the accused-appellant is
sentenced to suffer an indeterminate penalty of imprisonment of
twelve (12) years and one (1) day, as minimum, to thirteen (13)
years, as maximum and to pay a fine of Three Hundred Thousand
Pesos (P300,000.00).
SO ORDERED.13 (Underscoring supplied)
Specifically with respect to the charge of possession of shabu, the appellate
court held:
The evidence for the prosecution fully proved beyond reasonable
doubt the elements necessary to successfully prosecute a case for
illegal possession of a prohibited drug, namely, (a) the accused is in
possession of an item or an object identified to be a prohibited or a
regulated drug, (b) such possession is not authorized by law and (c)
the accused freely and consciously possessed said drug.
Under Section 11, Par. 2 [3] of R.A. 9165, the mere act of
possessing any dangerous drug consummates the crime. There is no
doubt that the charge of illegal possession of shabu was proven
 beyond reasonable doubt since the accused-appellant knowingly
possessed plastic sachets with white crystalline granules, without
legal authority at the time he was caught during the buy-bust
operation. The white crystalline granules found in his possession,
upon laboratory examination, were positively identified
as methamphetamine hydrochloride or shabu, a dangerous
drug.14 (Italics in the original, underscoring supplied)
Hence, the present Petition for Review on Certiorari, appellant faulting the
appellate court:
I. . . . IN CONVICTING [HIM] OF THE CRIME[S] CHARGED ON
THE BASIS OF THE LONE TESTIMONY OF THE POSEUR BUYER
AS AGAINST THE CORROBORATED STATEMENTS OF THE
ACCUSED AND HIS WITNESSES;
II. . . . IN ADMITTING THE EVIDENCE OF THE PROSECUTION
DESPITE CLEAR VIOLATION OF SECTION 21 (1) OF R.A. 9165;
III. . . . IN COMPLETELY DISREGARDING THE CLEAR EVIDENCE
ON THE EXISTENCE OF IRREGULARITY IN THE
PERFORMANCE OF OFFICIAL FUNCTIONS BY POLICE
OFFICER/S IN THE CONDUCT OF THE BUY BUST
OPERATIONS.15 (Emphasis and underscoring supplied)
As the resolution of the second assignment of error is determinative of
whether there is still necessity of segueing to the first and third assignments
of error, it shall early on be passed upon.
Appellant claims that there was failure to follow the requirements of Sec. 21
of R.A. No. 9165, hence, it compromised the integrity and evidentiary value
of the allegedly seized items.
Sec. 21 of R.A. No 9165 provides:
Section 21. Custody and Disposition of Confiscated, Seized, and/or
Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment. – The
PDEA shall take charge and have custody of all dangerous drugs,
plant sources or dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or
laboratory equipment so confiscated, seized and or surrendered, for
proper disposition in the following manner:
(1) The apprehending team having initial custody and control
of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the
same in the presence of the accused or the persons/s from
whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media
and the Department of Justice (DOJ), and any elected public
official who shall be required to sign the copies of the
inventory and be given a copy thereof ; x x x (Emphasis
and underscoring supplied)
Appellant claims that no physical inventory and photographing of the drugs
took place. A reading of the testimony of the poseur-buyer, PO2 Dano indeed
confirms appellant’s claim, viz:
Atty. Puentebella:
When you brought him to the police, it was there that the
items taken from him were inventoried, is it not?
Witness:
We did not make inventory because we simply brought the evidence
confiscated.
xxxx
Atty. Puentebella:
You also did not take photographs of the items taken from
the accused?
Witness:
Yes, sir.
Atty. Puentebella:
And you know for a fact that under the new drugs law, this is
a requirement for the apprehending team to do, is it not?
Pros. Gapuzan:
 Counsel is asking for a conclusion of law. I will object.
Court:
Witness may answer the question.
Witness:
Yes, sir.
xxxx
Atty. Puentebella:
So it is very clear now Mr. Witness that at the time you
apprehended the accused, you did not make an inventory
in the presence of the accused nor you did not [ sic]
make a photograph of the items seized in the presence
of the accused, an elective official, a representative from the
Department of Justice, or the media, that’s very clear?
Witness:
Yes, sir.
Atty. Puentebella:
Since you did not make any inventory, it follows that you did
not require them to sign your inventory as required by law?
Witness:
Yes, sir.16 (Emphasis and underscoring supplied)
Clearly then, the apprehending police officers failed to comply with the
above-quoted provision of Section 21 of R.A. No. 9165.
People v. Pringas holds, however:
Non-compliance by the apprehending/buy-bust team with Section 21
is not fatal as long as there is  justifiable ground therefor, and as
long as the integrity and the evidentiary value of the
confiscated/seized items, are properly preserved by the
apprehending officer/team. Its non-compliance will not render an
accused's arrest illegal or the items seized/confiscated from him
inadmissible. What is of utmost importance is the preservation of
the integrity and the evidentiary value of the seized items, as the
same would be utilized in the determination of the guilt or innocence
of the accused.17 (Citation omitted, emphasis, italics and
underscoring supplied)
The Court’s pronouncement in Pringas is based on the provision of Section
21(a) of the Implementing Rules and Regulations18 of R.A. No. 9165, viz:
x x x Provided, further, that non-compliance with these requirements
under justifiable grounds, as long as the  integrity and evidentiary
value of the seized items are properly preserved  by the
apprehending officer/team, shall not render void and invalid such
seizures of and custody over said items; (Emphasis and
underscoring supplied)
In the present case, by PO2 Dano’s claim, he immediately marked the seized
items which were brought to the Crime Laboratory for examination. By his
admission, however, he did not conduct an inventory of the items seized.
Worse, no photograph of the items was taken. There was thus failure to
faithfully follow the requirements of the law.
Parenthetically, unlike in Pringas, the defense in the present case questioned
early on, during the cross examination of PO2 Dano, the failure of the
apprehending officers to comply with the inventory and photographing
requirements of Section 21 of R.A. No. 9165 19, despite PO2 Dano’s
awareness of such requirements. And the defense raised it again during the
offer of evidence by the prosecution, thus:
Atty. Puentebella:
xxxx
Exhibits "B" which is the brown envelope, "B-1", "B-2" and "B-3" are
objected to for being product of irregular functions of police and
therefore fruit of poisonous thinking [sic] and they are not admissible
and they were not photographed in the presence of the accused
as provided for by Sec. 21, par.1, R.A. 9165;20 (emphasis supplied)
IN FINE, as the failure to comply with the aforesaid requirements of the law
compromised the identity of the items seized, which is the corpus delicti of
each of the crimes charged against appellant,21 his acquittal is in order.
This leaves it unnecessary to still dwell on the first and third assignments of
error.

WHEREFORE, the Petition is GRANTED. The assailed decision

is REVERSED and SET ASIDE and appellant, Elpidio Bondad Jr., y Burac,
is ACQUITED of the crimes charged.

Let a copy of this Decision be furnished the Director of the Bureau of

Corrections, Muntinlupa City who is directed to cause the immediate release
of appellant unless he is being lawfully held for another cause, and to inform
this Court of action taken within ten (10) days from notice hereof.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice